Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 03/23/2015 7:20:09 PM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-15-00087-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/23/2015 7:20:09 PM KEITH HOTTLE CLERK N O . 04-15-00087-CV
I N THE C OURT OF A PPEALS FOR THE F OURTH D ISTRICT OF T EXAS AT S AN A NTONIO E STATE OF S HIRLEY L. B ENSON T HOMAS M ILTON B ENSON , J R ., A S T RUSTEE OF THE
S HIRLEY L. B ENSON T ESTAMENTARY T RUST , Appellant v.
Renee Benson,
Appellee On Appeal from Probate Court No. 2 Bexar County, Texas
Cause No. 155,572 and 155,572-A U NOPPOSED M OTION TO A BATE D UE TO R EMOVAL TO F EDERAL C OURT
The Appellant— Thomas Milton Benson, Jr., in his capacity as Trustee of the Shirley L. Benson Testamentary Trust—removed this case to federal court last
Wednesday, March 18, 2015. See Ex. 1.
Upon receiving notice of removal, the state courts “shall proceed no further unless and until the case is remanded.” 28 U.S.C. §1446(d). Therefore, this Court
should abate the appeal, including the briefing schedule, until it is determined
whether the case will remain in federal court. Lattin v. Barrett , 153 S.W.3d 700, 701
(Tex. App.—Waco 2005, no pet.) (“Because of the removal, we will abate this
proceeding, subject to reinstatement when and if the bankruptcy court executes a
remand order and the clerk of that court mails a certified copy to this Court.”) (citing
Quaestor Invs., Inc. v. State of Chiapas, Mex. , 997 S.W.2d 226, 229 (Tex.1999) (per
curiam)).
As of now, the appellant’s brief has been filed, and the appellee’s brief is due March 26, 2015. This Court denied Thomas Benson’s motion to further expedite
this accelerated appeal but stated that no extensions of briefing deadlines would be
granted absent extraordinary circumstances. For the moment, because of the
removal, Renee Benson has no choice but to switch her attention away from this
brief to the federal-court proceedings. If and when the case is remanded to state
court, and the briefing schedule resumes, Renee Benson respectfully requests that
this Court reset the deadline for her appellee’s brief to give her a reasonable amount
of time to complete and file the brief. The parties agree to 14 days from the day the
Court is notified of remand, but Renee Benson reserves the right to request a slightly
longer period depending on the circumstances at the time remand occurs.
2 *3 Respectfully submitted, /s/ Harriet O’Neill Bennett L. Stahl Harriet O’Neill
State Bar No. 19006500 State Bar No. 00000027
blstahl@csg-law.com honeill@harrietoneilllaw.com
CURL STAHL GEIS LAW OFFICE OF
A PROFESSIONAL HARRIET O’NEILL, P.C.
CORPORATION 919 Congress Avenue, Suite 1400
One Riverwalk Place Austin, Texas 78701
700 North St. Mary’s Street, Ste. 1800 Telephone: (512) 944-2222
San Antonio, Texas 78205 Telecopier: (512) 476-6441
Telephone: (210) 226-2182
Telecopier: (210) 226-1691 Douglas W. Alexander
State Bar No. 00992350 Emily Harrison Liljenwall dalexander@adjtlaw.com
State Bar No. 12352250 Amy Warr
eliljenwall@scs-law.com State Bar No. 00795708
SCHOENBAUM, CURPHY awarr@adjtlaw.com
& SCANLAN, P.C. A LEXANDER D UBOSE
112 E. Pecan, Suite 3000 J EFFERSON & T OWNSEND LLP
San Antonio, Texas 78205 515 Congress Avenue, Suite 2350
Telephone: (210) 224-4491 Austin, Texas 78701-3562
Telecopier: (210) 224-7983 Telephone: (512) 482-9300
Facsimile: (512) 482-9303 Attorneys for Appellee Renee Benson 3
C ERTIFICATE OF C ONFERENCE On March 23, 2015, I conferred with Russell Post, attorney for Appellant, and he stated that his client does not oppose the motion to abate. Further, if remand
occurs, his client does not oppose a new deadline for appellee’s brief of 14 days after
this Court receives notice of the remand.
/s/ Harriet O’Neill Harriet O’Neill 4
C ERTIFICATE OF S ERVICE On March 23, 2015, I electronically filed this document with the Clerk of the Court using the eFile.TXCourts.gov electronic filing system which will send
notification of such filing to the following:
David J. Beck
State Bar No. 0000070
dbeck@beckredden.com
Russell S. Post
State Bar No. 0079758
rpost@beckredden.com
Troy Ford
State Bar No. 24032181
tford@beckredden.com
Owen J. McGovern
State Bar No. 24092804
omcgovern@beckredden.com
BECK REDDEN LLP
1221 McKinney Street, Suite 4500
Houston, Texas 77010-2010
Telephone: (713) 951-3700
Telecopier: (713) 951-3720
Attorneys for Trustee Thomas Milton Benson, Jr.
As Trusted of the Shirley L. Benson Testamentary Trust
/s/ Harriet O’Neill Harriet O’Neill 5
EXHIBIT 1 5:1-5-cv-00202 1- Filed 03/1-8/1-5 Page IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
RBNEB BENSON $ $
v C.A. No. 15-202 $ $
THOMAS MILTON BENSON, JR. $ As Trustee $ SHIRLEY L. BENSON $ TESTAMENTARY TRUST $
NOTICE OF REMOVAL
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
Pursuant to U.S.C. $$ 1441, et seq., Defendant / Defendant-Trustee Thomas Milton Benson, Jr. ("Mr. Benson") hereby rerroves to this Court the state court action Renee Benson v.
Thomas Milton Benson, Jr., as Trustee Shirley L. Benson Testamentary Trust, Cause Number
155,572-A.r As grounds for removal, Mr. Benson states as follows:
NATURE OF THE ACTION l. After being appointed as Temporary, Lirnited Co-Receivers in a pending state court action to remove Mr. Benson as the Trustee the Shirley L, Benson Testamentary Trust ("Trust"),
Co-Receivers Phil Hardberger and Art Bayern filed Plea in Intervention to join in that action and
assert new claims. This filing hijacked underlying action against Trustee, using it a
vehicle to pursue an entirely new case that bears no resemblance whatsoever to the original trustee
removal action and could not have been pursued its own right.
t M.. B.nton only seeks removal Cause Number I15,572-A, Renee Benson v. Thomas Milton
Benson, -/r., which contains (1) Petitioner's original petition to remove Benson as Trustee
and (2) the Co-Receivers' Plea Intervention. He does not seek remove Estate Shirley L.
Benson, Cause Number 155,572, which original action adrninistering Estate of
decedent Shirley L. Benson. The adrninistration that Estate has been closed for over thirty
years.
558242-v7 11884-00001 5:15-cv-00202 L Filed OSILB1LS Page of LB
2. Unlike original petition between Mr. Benson-in his official capacity as
Trustee-and his daughter-Petitioner Renee Benson-the Co-Receivers' Plea in Intervention sues
Mr. Benson in his personal capacity. And whereas the original action affirrnatively stated that it
sought no monetary relief from Mr. Benson individually, the Co-Receivers' seek a declaration that
would (l) invalidate his $550 million reacquisition assets from several trusts that are completely
unrelated to the underlying trustee removal proceeding, and (2) divest him of one share stock in
Bensco, Inc.-a company with more than 1.6 rnillion outstanding shares.
3. Faced with this radically altered action against his personal assets, Defendant /
Defendant-Trustee Mr. Benson now seeks to exercise his right to rernove this case to federal court.
TIMELINESS OF REMOVAL 4. Service the Co-Receivers' Plea in Intervention was effected on or about March2,
2015. See Tab F. This Notice of Removal has been filed within thirty (30) days service
last-served defendant (Mr. Benson in his individual capacity)2 and with consent all earlier-
served defendants (Mr. Benson as Trustee) and is therefore tirnely. See28 U.S.C. $ 1446(bX2XC)
("If defendants are served at different times, and a later-served defendant files a notice removal,
any earlier-served defendant may consent to the removal even though that earlier-served defendant
did not previously initiate or consent to removal."). Removal is also tirnely for Mr. Benson in his capacity Trustee under the Fifth
Circuit's long-recognized "revival exception." This judicially-created exception U,S.C.
' Benson was not made a defendant in his personal capacity in tlie original removal
proceeding. See Hofe, v. Melo,502 U.S. 21,27 (1991) ("the distinction between official-
capacity suits and personal-capacity suits more than a mere pleading device."); Werner v.
Colwell,909 S.W.2d 866, (Tex. 1995) ("Nowhere her operative pleading does Colwell
allege that I.M. Werner was liable her capacity as trustee. Unless waived by a general
appearance court cannot confer acapacity on the party that has not been pleaded.").
558242-v7ll 884-0000 I 5:1-5-cv-00202 Filed 03i1-8ll-5 Page 3 of
$ 1446's 3O-day requirement provides that"a lapsed right to remove an initially removable case
within thirty days restored when the complaint is amended so substantially to alter the
character the action and constitute essentially a new lawsuit." Johnson v. Heublein Lnc.,227
F.3d,236,241 (5thCir.2000). The Plea in Intervention has aligned the parties "in a completely
different manner" such that the allegations now "bear no resemblance whatsoever" to the
original action. See id. Whereas the original petition was an action between beneficiary and a
Trustee, the Plea in Intervention seeks to transform the case into a declaratory action between the
Trust itself (through the Co-Receivers) and Mr. Benson in his individual capacity. Such an
action "bears no resemblance whatsoever" to the allegations in original petition-which do
not mention, rnuch less contest, the ownership Bensco shares or the validity the 2015 asset
exchange. Further, Mr. Benson certainly has not consented to litigating those issues in state
coutl.3 Because the Plea in Intervention "starts a virtually new, rnore complex, and substantial
case against [defendant] upon which no signif,rcant proceedings have been held, [and] the
removal will not result in delay, waste, or undue tactical advantage to a party," Johnson,227
F.3d at 242,the revival exception allows Benson to remove the entire case at this tirne. Finally, removal is timely under 28 U.S.C. $ 1446(bX3), which allows removal
within days filing an "other paper" giving notice a federal question, to wit,
Co-Receivers' March 2,2015 Plea in Intervention.
' "[A] willingness on part defendant to remain a state court to litigate a particular
claim should not be interpreted as a willingness on his part remain a state court to
adjudicate completely different claim." 14C CHARLES ALAN WRIGHT, ARTHUR R.
MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE $ 3732, ar
321 (1ee8).
558242-v7/ l884-0000l^ J 5:15-cv-00202 l- Filed 03/1-8/1-5 Page l-B
REMOVAL UNDER 28 U.S.C. Q 1441ft) 7. Removal is proper under U.S.C. $ 1441(b). Section I44l(b)(2) permits
removal if the Court has original jurisdiction under 28 U.S.C. $ 1332(a) and none the "parties
in interest properly joined and served as defendants is citizen the State in which such action
is brought."
8. All served Defendants (Mr. Benson in his individual capacity and Mr. Benson in
his capacity as Trustee) are citizens Louisiana.
9. All served Defendants (Mr. Benson in his individual capacity and Benson in
his capacity Trustee) have consented removal.
CO-RECEIVERS' PLEA IN INTERVENTION I. The Co-Receivers' Plea in Intervention Meets the Requirements for Diversity Jurisdiction Under 28 U.S.C. $ 1332.
10. This Court has jurisdiction of the state court lawsuit under 28 U.S.C. $ 1332 because
the matter in controversy exceeds the sum or value $75,000, exclusive interest and costs, and is
between citizens of different states.
A. The Amount in Controversy Requirement is Satisfied. The amount in controversy is well in excess of $75,000. Removal is "proper if it
is 'facially apparent' frorn the complaint that the claim or claims asserted exceed the
jurisdictional amount." Salovitz v. Uber Technologies, Inc., A-I4-CV-823-LY, 2014 WL
5318031, at *5 (W.D. Tex. Oct. 16, 2014) (citing Allen v. R & H Oil & Gas Co., 63 F .3d 1326,
1335 (5th Cir. 1995)). In cases where plaintiff seeks non-monetary relief, rule Fifth
Circuit is that "[t]he amount controversy . . . value right to be protected or
extent of tlre injury to be prevented." St. Paul Reins. Co. v. Greenberg, F.3d 1250, 1252-53
558242-v7/l 884-0000 I 5:1-5-cv-00202 1- Filed 03/l_8/1_5 Page of 1_8
(5th Cir. 1998) (internal quotation marks omitted). The Court rnay apply "common sense" when
rnaking an amount in controversy determination. See Allen,63 F.3d at 1336.
12. Benson recently furnished 5449,857,572 in promissory notes and real
property to trusts he created for Petitioner and her children in exchange for the assets held by
those trusts. The Co-Receivers' Plea Intervention seeks a declaration invalidating this
exchange. Tab F at7-9.
13. The Co-Receivers' further challenge the ownership Bensco, Inc., seeking a
declaration that (l) Shirley Benson Trust is a 50o/o co-owner Bensco and (2) that
remaining 50o/o Bensco is owned by the 2009 Trusts set up for Petitioner and her children,
rather than Mr. Benson himself. Bensco owns five car dealerships across Louisiana and Texas.
It is uncontested that the value these ownership interests exceeds $75,000.
14. It is therefore facially apparent from state court pleadings that the amount in
controversy exceeds $75,000.
B. There is Complete Diversity Between Co-Receivers and Mr. Benson. Cornplete diversity exists because this suit between Texas Plaintiffs (Co-
Receivers and Petitioner) and Louisiana Defendants (Mr. Benson, both an individual and as
Trustee). In aligning the parties for purposes diversity, courts must "look beyond the pleadings,
and arrange parties according their sides dispute to ensure that the parties have a
collision interests over the principal purpose the suit and the primary and controlling rnatter in
dispute." Chesapeake Louisiana, L.P. v. Buffco Prod., Inc., Fed. App'x 751, 755 (5th Cir.
2014), reh'g denied (June 5, 2014) (quoting City of Indianapolis v. Chase Nat'l Bank of City of
N.Y., U.S. 63, 69 (1941)) (internal quotation marks omitted).
558242-vi 11884-00001 5:l-5-cv-00202 1- Filed 03i1-B/l-5 Page 6 1_8
16. Plaintiffs-in-Intervention Phil Hardberger and Art Bayern-the Temporary,
Limited Co-Receivers-upon information and belief are residents San Antonio, Bexar County,
Texas. Robert Rosenthal is Trustee the Renee Benson 2009 Irrevocable Trust, the Rita
Benson LeBlanc 2009 Irrevocable Trust, and the Ryan LeBlanc 2009Irrevocable Trust ("2009
Trusts"). Rosenthal may be served with citation at his place business at Rosenthal Pauerstein
Sandoloski Agather LLP, 755 East Mulberry St., Suite 200, San Antonio, Texas 78212.
Although identified a party-in-interest in the suit, Rosenthal's interests are aligned with the
Plaintiffs-in-Intervention, making him Plaintiff for the purposes diversity analysis. The
"generally accepted test for alignment places the parties with the same 'ultimate interests' in
litigation on the same side." Grffin v. Lee,621 F.3d 380, 388 (5th Cir. 2010). The Co-
Receivers' Plea Intervention seeks declare that Mr. Benson's $550 million reacquisition of
assets from the 2009 Trusts was invalid for failure to provide "equivalent value" and that 2009
Trusts-not Mr. Benson-own 50% Bensco, Inc. This exact sarne position Mr.
Rosenthal has taken on the issue.a That the Co-Receivers seek same result that Rosenthal is
currently pursuing other litigation demonstrates that they share same "ultimate interest" and
should be placed on same side for purposes diversity jurisdiction.
a ,See Complaint for Declaratory Judgment and Injunction, Thomas Milton Benson, Jr. v. Robert
Rosenthal, Civil Action No. 2:15-cv-00782 (E,.D. La. frled March ll,2015), ECF No. at 15,
558242-v7 11884-00001 5:15-cv-00202 1 Filed 03/1-8/1-5 Page 7 of IB
18. Thomas Milton Benson, Jr. ("Mr. Benson") is an individual who is domiciled5 at
16 Audubon Place, New Orleans, Louisiana 70118. Mr. Benson is a citizen of the State of
Louisiana, spends the vast majority of his time in Louisiana, and manages his substantial
business activities-including the New Orleans Saints, the New Orleans Pelicans, and
Trust-from his Louisiana office, located at 5800 Airline Drive, Metairie, Louisiana 70003. Mr,
Benson owns the controlling interest in Bensco, Inc. His ownership interest is the subject matter
of the Co-Receivers' Plea in Intervention.
19. It is therefore apparent from the face of the pleadings that cornplete diversity exists
between Plaintiffs and the Defendant on the Co-Receivers' Plea in Intervention. Because the Plea Intervention satisfres both the amount in controversy and diversity requirements of U.S.C.
$ 1332, removal is appropriate.
II. The Co-Receivers' Plea in Intervention Meets the Requirements for Federal Question Jurisdiction Under 28 U.S.C. $ 1331.
20. This Court has jurisdiction the state court lawsuit under 28 U.S.C. $ 1331 because matter is a "civil action[] arising under the Constitution, laws, or treaties the United States." The well-pleaded complaint rule requires that for a federal court have "arising
under jurisdiction, plaintiff s federal law claims must appear on the face complaint."
McKnight v. Dresser, Inc., 676 F.3d 426,430 (5th Cir. 2012). A federal question exists if "the
plaintiff s right to relief necessarily depends on resolution a substantial question federal law."
Singh v. Duane Moruis LLP,538 F.3d 334, 337-38 (5th Cir. 2008).
s In her related Petition for Interdiction-filed in Civil District Court for Parish of
Orleans Louisiana-Petitioner Renee Benson admits that Benson is domiciled in
Louisiana. See In re Interdiction Thomqs Milton Benson,.,Ir., Cause No. 15-655, af I (La.
Dist. Ct. filed Jan. 22,2015). The domicile of natural person under Louisiana law is "the place his habitual residence." La. Civil Code art. 38. For Mr. Benson, that place l6 Audubon
Place, New Orleans, Louisiana.
558242-v7 /1884-00001 5:1-5-cv-00202 1 Filed 03i1-8l15 Page I of 1-B
22. The Co-Receivers and Mr. Rosenthal challenge Mr. Benson's ownership of Bensco,
Inc. on the grounds that his exchange of assets was insufficient, However, the 2009 and 2012
Trusts are grantor trusts, which are exclusively a creation of federal law. In accordance with the
Internal Revenue Code provisions governing grantor trusts, the grantor of a grantor trust is treated as
the owner of the assets held by the trust, and the grantor is responsible for all taxes attributable to
assets held by the trust. 26 U.S.C. $$ 671-679.
23. The Internal Revenue Code's grantor trust provisions interact with other
provisions of the Internal Revenue Code. Specifically, among other things, under Sections
and 2038 the Internal Revenue Code, the grantor's exercise of the rightto exchange assets a
grantor trust may, under ceftain circumstances, result in all of the trust's assets being taxable in
the grantor's estate at their current fair market value, disregarding the date the transfer.
24. The and2012 Trusts were expressly intended to be subject to Internal Revenue
Code $ 675(4), which gives Mr. Benson grantor status and allows him to "reacquire the trust corpus
by substituting other property an equivalent value." U.S.C. $ 675(4).
25. Mr. Benson's Notice Exchange states that it was effective January l, The Notice contained a valuation adjustment clause that allowed Rosenthal to contest adequacy-rather than the validity-of the exchange. However, the Co-Receivers and Mr.
Rosenthal seek declaration that because they deem substituted property inadequate, no
exchange has occurred and, therefore, Bensco is owned by 2009 Trusts instead Mr.
Benson. This contention is contrary Internal Revenue Code $ 675, revenue rulings, and
judicial precedents relating thereto, which provide that an exchange assets under $ is
effective on the date specified by grantor, not the date exchange accepted by
trustee. I
558242-v7 / 1884-00001 5:1-5-cv-00202 l- Filed 03/1-8/15 Page 9 of 1-B 26. Because the Court cannot grant the relief requested by the Co-Receivers and Mr.
Rosenthal without resolving the question of when an asset reacquisition exchange becomes effective
under 26 U.S.C. $ 675(4), the Plaintifß' right to relief necessarily depends on the resolution of a
substantial question federal law. It is therefore facially apparent from the state courtpleadings
that a federal question exists in this case, justifying removal of this action to federal court.
PETITTONN,R'S ORTGTN AL PE, ON TO REMOVE THE TRUSTEE L Petitioner's Original Petition to Remove the Trustee Meets the Requirements for Diversity Jurisdiction Under 28 U.S.C. $ 1332. . This Court has jurisdiction of the state court lawsuit under U.S.C, $ 1332 because
the matter in controversy exceeds the sum or value $75,000, exclusive interest and costs, and is
between citizens of different states.
A. The Amount in Controversy Requirement is Satisfied. 28. For the purposes establishing removal jurisdiction, a defendant may
demonstrate that the amount in controversy exceeds $75,000 statutory minimum in either of
two ways: (i) by demonstrating that it apparent from the face the petition that the plaintiffs
claims are likely to exceed $75,000, or (2) "by setting foth facls in controversy-preferably
in removal petition, but sometimes by affidavit-that support finding requisite
amount." Allen,63 F.3d at 1335; accord, Manguno v. Prudential Prop. and Casualty Ins. Co.,
276 F.3d 720,723 (5th Cir. 2002) (quoting Simon v. Wal-Mart Stores, Inc., F.3d 848, 850
(5th Cir. 1999)); Grant v. Chevron Phillips Chem. Co., 309 F.3d 864, 868 (5th Cir. 2002);
Luckett v. Delta Airlines, Inc., 171F.3d295,298 (5th Cir. 1999). Petitioner's original petition seeks remove Benson Trustee and place
herself in control Trust and its substantial assets. "The amount controversy, an action
558242-v7 /1884-00001
Case 5:1-5-cv-00202 Documerrt l- Filed 03/18/1-5 Page 1"0 of 1-8 for declaratory or injunctive relief, is the value the right to be protected or the extent of the
injury to be prevented." Greenberg, 134 F.3d at 1252-53.
30. The Trust contains-among other assets-approximxely $4.7 million in cash, a
substantial minority interest in Bensco, Inc., and a 97o/o ownership interest in Lone Star Capital
Bank, which has total deposits $203 million. It is therefore both "facially apparent" from the
complaint and readily apparent upon analysis the facts in controversy that the claim or claims
assefted exceed the jurisdictional amount. See Salovitz,2014 WL 5318031, at *5.
B. There is Complete Diversity Between Petitioner and the Trustee. 31. Petitioner Renee Benson is an individual having residence at 503 Bluffwood
Drive, San Antonio, Bexar County, Texas 78216. She is a curent and remainder benefîciary of Trust and the Petitioner in the underlying action to remove Mr. Benson as Trustee.
32. Thomas Milton Benson, Jr. ("Mr. Benson"), his capacity a Trustee, the
Trustee the Shirley L. Benson Testamentary Trust. As stated, from time the underlying
action was frled to date, he has been dorniciled at 16 Audubon Place, New Orleans, Louisiana
70118. Until Co-Receivers were appointed, Benson managed the Trust from his
Louisiana offrce, located at 5800 Airline Drive, Metairie, Louisiana 70003.
33. It facially apparent from the state court pleadings that complete diversity exists
between Petitioner and Defendant-Trustee. Because both amount controversy and
diversity requirements 28 U.S.C. $ i332 have been satisfied, removal is appropriate.
JURISDICTION UNDER U.S.C. S 1367 This Court has diversity and federal question jurisdiction overthis case. U.S.C. $ 1367. "A claim forms part the same case or controversy if the 'clairn [is] so related
original clairns that [it] derive[s] from common nucleus operative fact."' Venable v. Louìsiana
Workers' Comp. Corp.,740 F.3d 937,944 (5th Cir. 2013). Although claims themselves are 58242-v7/l 884-0000 I
Case 5:l-5-cv-00202 1- Filed 03/1-B/l-5 Page 1-1 of 1-8 drastically different, they derive from common nucleus of operative facts in that the Co-Receivers
derive their power frorn the temporary injunction issued pending resolution of Petitioner's action to
remove the trustee.6 Without the underlying trustee removal action, there would be no Plea in
Intervention. Thus, it is clear from the face of the pleadings that the Plaintiffs' state law claims all
arise from the same nucleus of operative facts. Supplernental jurisdiction is appropriate.
CONCLUSION 35. Mr. Benson l'eserves the right to submit additional evidence in support of this
Notice of Removal should Plaintiffs move to remand.
36. By virlue of this Notice of Removal, Mr. Benson does not waive the right to
asserl any claims, defenses or other motions permitted under the Federal Rules Civil
Procedure.
37. Probate Court Number 2 for Bexar County, State Texas is located in San
Antonio, Texas, and therefore is within the United States District Court for the Western District Texas, San Antonio Division, pursuant to U.S.C. $ 124(dX4),
38. Therefore, venue is proper Western District Texas, San Antonio
Division, accordance with U.S.C. $ 1441(a), because it is the "district and division
ernbracing the place where such action is pending." No previous application has been made by Benson for relief requested
herein. The state couft's Second Amended Order Granting Injunction, Suspending Trustee & Appointing
Lirnited Temporary Co-Receivers with Restrictions currently being appealed Court of
Appeals for Fourth District Texas at San Antonio. ,See Tabs U-W, Estate Shirley L.
Benson / Thomas Milton Benson, Jr., Trustee Shirley L. Benson Testamentary Trust v.
Renee Benson, No. 04-15-00087 (Tex. App.-San Antonio brief filed March 6,2015).
558242-v7 /I884-0O00 l 5:l-5-cv-00202 Documerrt l- Filed 03/1-B/l-5 Page L2 LB
40. Pursuant to U.S.C. $ 1446(a), a copy the state court record as it existed as of
March 17, 2015, is attached as Tabs A-DD. No other process, pleadings, or orders have been
served upon Mr. Benson or appear in the record.
41. Pursuant to 28 U.S.C. $ 1446(d), Mr. Benson will provide written notice the
filing of this Notice Removal to all adverse parties. In addition, copy this removal
petition being filed with clerk of court which the state action was f,rled. For reasons stated above, Benson respectfully requests that this Court take
jurisdiction this action its conclusion and frnal judgrnent to exclusion any further
proceedings in state action.
March 18,2015 Respectfully submitted,
BECK I nnODnn r,LP By: /s/ David J. Beck David J. Beck State Bar No. 00000070 l22l McKinney Street, Suite 4500 Houston, Texas 010-2010 Telephone: (713) 951-3700 Telecopier: (713)951-3720 ATTORNEY-IN-CHARGE FOR THOMAS MILTON BENSON, JR., in his individual capacity, and TRUSTEE THOMAS MILTON BENSON, JR. Trustee of
SHIRLEY L. BENSON TESTAMBNTARY TRUST OF COUNSEL:
Troy Ford
State Bar No. 240321 81
l22l McKinney Street, Suite 4500
Houston, Texas 77010-2010
Telephone: (713)951-3700
Telecopier: (713)951-3720
558242-v7ll 884-0000 I 5:15-cv-00202 1- Filed 03/1_B/l_5 Page 1"3 1-B
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy foregoing document was served in compliance with Texas Rules Civil Procedure on March 18, 2015, by serving
following via electronic mail:
Bennett L. Stahl Co-Receiver Phil Hardberger,
CURL STAHL GEIS c/o C. David Kinder, Mark J. Barrera, and
A PROFESSIONAL CORPORATION Ellen B. Mirchell
One Riverwalk Place Cox Smith Matthews Incorporated
700 North St. Mary's Street, Suite 1800 112 East Pecan Street, Suite 1800
San Antonio, Texas 78205 San Antonio, Texas 78205
Telephone : (21 0) 226 -21 82 Telephone: (210) 554-5500
Telecopier: (210)226 | 69 [1] Telecopier: (210) 226-8395
tr I stah I (?cs e- I aw. co m pharclber r¡er@)cox smith. com
d ki n derlà,coxs m ith. com Emily Harrison Liljenwall n"r barlera(¿.Ìcox s rn i th. conr
SCHOENBAUM, CURPHY & SCANLAN, P.C. qmitchell@)coxsmitlr.oom
Il2E. Pecan, Suite 3000
San Antonio, Texas 78205
Telephone: (210) 224-4491
Telecopier: (210) 224 -7 9 83
eli I i enwall rã.scs-law.com
Harriet O'Neill Co-Receiver Arthur H. Bayern,
LAW OFFICE OF HARRIET O'NEILL, P.C c/o Joyce W. Moore LANGLEY & BANACK,INC.
919 Congress Avenue, Suite 1400
Austin, Texas 78701 East Mulberry Avenue, Suite 900
Teleplrone: (512) 944-2222 San Antonio, Texas 78212
Telecopier: (512) 476-6441 Telephone: (210) 736-6600
hone il llOharrietoneill law.com Telecopier: (210) 735-6889 ba yern (â)l an gl ey b anack. c o m
Douglas Alexander jwmoore(âD,lan gleyban acl<.con-r
ALEXANDER, DUBOSE, JEFFERSON &
TOWNSEND LLP Congress Ave., Suite 2350
Austin, Texas 78701
Telephone: (512) 944-2222
Telecopier: (512) 6-6441
d al exan c1 er(rlad i tl aw, conr
ATTORNEYS FOR PETITIONER
RENEE BENSON
558242-v7 I 1884-00001 5:L5-cv-00202 Document l- Filed 03/1-8/1-5 Page 1-4 1-B
Kevin P. Kennedy Nacogdoches Road, Suite 100
San Antonio, Texas 78209
Telephone: (210)824-0771
Telecopier: (210) -824-2731
ATTORNEY FOR ROBERT A. ROSENTHAL his capacity TRUSTEE OF THE RENEE
BENSON 2OO9 IRREVOCABLE TRUST, THE RITA BENSON LEBLANC 2OO9 IRREVOCABLE TRUST, THE RYAN
LEBLANC 2OO9 IRREVOCABLE TRUST,
THE RENEE BENSON IRREVOCABLE
TRUST, THE RITA BENCON LEBLANC 2012 IRREVOCABLE TRUST, THE RYAN
LEBLANC 2OI2 IRREVOCABLB TRUST,
THE TOM BENSON 2OI2 GRANTOR
RETINED ANNUITY TRUST, AND THB TOM BENSON 2OI4 GRANTOR RETAINED
ANNUITY TRUST
Robeft A. ("Bobby") Rosenthal
brosenthal@rpsalaw. com
ROSENTHAL PAUERSTEIN SANDOLOSKI
AGATHER LLP
755 East Mulberry, Suite 200
San Antonio, Texas 78212
Telephone: (210)244-8860
Telecopier: (210) 244-8960
/s/ David J. Beck DAVID J. BECK 558242-v7/1884-0000 I 5:1-5-cv-00202 Document l- Filed 03/1-8/1-5 Page 15 l-B
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
RENEE BENSON $ $
V C.A. No. $ $
THOMAS MILTON BENSON, JR. $ As Trustee of the $ SHIRLEY L. BENSON $ TESTAMENTARY TRUST $ INDEX OF'MATTERS BEING F'ILED TRIAL COUT RECORD
L Trial Court Documents (as filed with San Antonio Court of Appeals)
A. State court docket sheet;
B. Clerk's Record, Trial Court Case No. 755,572-A Probate Court No. Bexar County, Texas;
C. Supplemental Clerk's Record, Trial Court Case No. 155,572-A in Probate Court No. Bexar County, Texas; D. Second Supplemental Clerk's Record, Trial Court Case No. 155,572-A Probate CourtNo. 2 of Bexar County, Texas;
E. Reporter's Record - Transcript of February 4,2075 Temporary Injunction Hearing; F. Reporter's Record - Transcript of February 5,2015 Temporary Injunction Hearing; G. Repofter's Record - Transcript of February 9,2075 Temporary Injunction Hearing; H. Reporter's Record - Exhibit List frorn Temporary Injunction Hearing; I. Repofter's Record - Exhibits from Ternporary Injunction Hearing; il. Trial Court Documents (filed after appeal)
J. Letter from Co-Receivers Judge Rickhoff regarding transfer Trust assets; K. Co-Receivers' Plea in lntervention;
L. Letter frorn Judge Rickhoff responding to Co-Receivers' Plea in Intervention; s58242-v7 11884-00001
Case 5:1-5-cv-00202 l- Filed Page 16 of 1_B M. Motion for Authority to Pay Note;
N. Motion for Authority to Pay Accountant;
O. Response Thomas Milton Benson, Jr., Trustee, to Motion for Authority to Pay Note;
P. Proposed Order Granting Motion for Authority to Pay Note; a. Certif,rcate Service ofNotice of Removal;
R. Notice of Filing Notice of Removal.
S. Index matters being filed;
T. List of allcounsel of record;
APPELLATE COURT RECORD
I. Motions, Orders, and Briefs
U. Emergency Motion to Expedite Appeal
V. Order Denying Appellant's Motion to Expedite Appeal; W. Appellant's Brief;
II. Additional Correspondence
X. Correspondence from Court - Appeal docketed;
Y. Appellant'sDocketingStatement;
Z. Clerk's Record filed;
AA. L. Crain letter Court;
BB. Repofter's Record frled;
CC. Supplemental Clerk's Record filed;
DD. Second Supplemental Clerk's Record filed.
558242-v7/l 884-0000 I t6 5'1-5-cv-00202 1 Filed 03/1-8/1-5 Page 1-7 1-B
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
RENEE BENSON $ $
V C.A. No. $ $
THOMAS MILTON BENSON, JR. $ As Trustee of the s SHIRLEY L. BENSON $ TESTAMENTARY TRUST s LIST OF ALL COUNSEL OF RECORI) Bennett L. Stahl David J, Beck BECK I nnOOnN lln CURL STAHL GEIS
A PROFESSIONAL CORPORATION 1221McKinney Street, Suite 4500
One Riverwalk Place Houston, Texas 77 010-2010 Telephone: (713)951-3700
700 North St. Mary's Street, Suite 1800 Telecopier: (713)951-3720
San Antonio, Texas 78205
Telephone : (21 0) 226 -21 82
Telecopier: (210)226 [1] 69 I ATTORNEY-IN-CHARGE FOR THOMAS MILTON BENSON, JR., in
blstahI@csg-law.coni
his individual capacity, and TRUSTEE THOMAS MILTON BENSON, JR. Trustee of
SHIRLEY L. BENSON TESTAMENTARY TRUST Ernily Harrison Lilj enwall
SCHOBNBAUM, CURPHY & SCANLAN, P.C.
ll2E. Pecan, Suite 3000
San Antonio, Texas 78205
Telephone: (210) -449 [1]
Telecopier: (210) 224-7 983
el i lì enwa ll@scs-law.com
Harriet O'Neill
LAW OFFICE OF HARRIET O'NEILL, P.C. Congress Avenue, Suite 1400
Austin, Texas 7870I
Telephone: (512) 944-2222
Telecopier: (512) 476-6441
hone i ll (r?h arri etone i ll law.con'ì 58242-v7/l 884-0000 I 5:15-cv-00202 l- Filed 03/l-B/1-5 Page l-B 1-B
Douglas Alexander
ALEXANDER, DUBOSE, JEFFERSON &
TOWNSEND LLP
515 Congress Ave,, Suite 2350
Austin, Texas 78701
Telephone: (512) 944-2222
Telecopier: (512) 47 6-6441
dalexander@adjtl aw. com
ATTORNEYS FOR PETITIONER
RENEE BENSON Kevin P. Kennedy
Co-Receiver Phil Hardberger,
clo C. David Kinder, Mark J. Barrera, and Ellen B Nacogdoches Road, Suite 100
Mitchell San Antonio, Texas 78209 Telephone: (210) 824-0771
Cox Smith Matthews Incorporated Telecopier: (210)-824-2731
112 East Pecan Street, Suite 1800 San Antonio, Texas 78205 ATTORNEY FOR ROBERT A.
Telephone: (210) 554-5500 ROSENTHAL in his capacity as Telecopier: (210)226-8395 TRUSTEE OF THE RENEE BENSON
pharclber serØcoxsm ith. coln 2OO9 IRREVOCABLE TRUST, THE
d lcinder@,coxsmiilr.corn RITA BENSON LEBLANC 2OO9 m barrera(:lùcox s rn ith. com IRREVOCABLE TRUST, THE RYAN
em itchell @,coxsm ith.corn LEBLANC 2OO9 IRREVOCABLE TRUST, THE RENEE BENSON 2012
Co-Receiver Arthur H. Bayern, IRREVOCABLE TRUST, THE RITA
c/o Joyce W. Moore BENCON LEBLANC 2OI2 LANGLEY & BANACK,INC. IRREVOCABLE TRUST, THE RYAN
745 East Mulberry Avenue, Suite 900 LEBLANC 2OI2 IRREVOCABLE San Antonio, Texas 78212 TRUST, THE TOM BENSON 2OI2 Telephone: (210) 36-6600 GRANTOR RETINED ANNUITY
Telecopier: (210) 735-6889 TRUST, AND THB TOM BENSON
aba yenr (i?l n gl e),banack. com 2OI4 GRANTOR RETAINBD iwrnoore@)lan evbanack.com
ANNUITY TRUST Robert A. ("Bobby") Rosenthal bro senthal@rpsalaw. com ROSENTHAL PAUERSTEIN SANDOLOSKI AGATHER LLP East Mulberry, Suite 200 San Antonio, Texas 78212 Telephone: (210)244-8860 Telecopier: (210) 244-8960 558242-v7 /1884-00001