Hill3 14-10505 Brief Opening 2014-07-20

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

14-10505

ALBERT G. HILL III, individually as a beneficiary of the Margaret
Hunt Trust Estate, derivatively on behalf of the Margaret Hunt
Trust Estate, Individually, as a beneficiary of the Haroldson
Lafayette Hunt, Jr. Trust Estate, and derivatively on behalf of the
Haroldson Lafayette Hunt, Jr. Trust Estate,
Plaintiff-Appellant,

v.

WILLIAM SCHILLING, Individually and In His Capacity as a
Member of the Advisory Board of the MHTE and a Member of the
Advisory Board of the HHTE; IVAN IRWIN, JR.; ALBERT G.
HILL, JR.; ALINDA H. WIKERT; LYDA HILL; HEATHER V.
WASHBURNE; ELISA M. SUMMERS; WILLIAM HERBERT
HUNT, In His Capacity as the Personal Representative of the
Estate of Tom Hunt; BRETT RINGLE, Individually and in His
Capacity as a Member of the Advisory Board of the MHTE; JOHN
W. CREECY, Individually and In His Capacity as Trustee of the
HHTE; MARGARET KELIHER, Individually and in Her Capacity
as Trustee of the MHTE and a Member of the Advisory Board of
the HHTE, Defendant-Appellees.

On Appeal from No. 3-07-CV-2020
United States District Court
Northern District of Texas
Dallas Division

Appellants Opening Brief
Case: 14-10505 Document: 00512704358 Page: 1 Date Filed: 07/20/2014
Page 2 of 79

Submitted by:

Michael Mowla
445 E. FM 1382 #3-718
Cedar Hill, Texas 75104
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Texas Bar No. 24048680
Attorney (Lead) for Appellant

Leonard Thomas (Butch) Bradt
14015 Southwest Freeway Suite 4
Sugar Land, TX 77478
Phone: 972-201-0700
Fax: 972-201-1202
ltbradt@flash.net
Attorney for Appellant

ORAL ARGUMENT REQUESTED

Page 3 of 79

I. Certificate of Interested Persons

So that the Court may evaluate possible disqualification or recusal, the
undersigned counsel certifies that the following listed persons may have an interest
in the outcome of this case [See 5th Cir. Rule 28.2.1 (2014)]:
Albert G. Hill III, Appellant

Erin Nance Hill, Intervenor/Plaintiff

Defendant/Appellees:

William Schilling
Tom Hunt
Ivan Irwin, Jr.
Albert G. Hill, Jr.
Alinda H. Wikert
Lyda Hill
Heather V. Washburne
Elisa M. Summers
William Herbert Hunt
Margaret Hunt Trust Estate
Haroldson Lafayette Hunt Jr.
Brett Ringle
John W. Creecy
Margaret Keliher

Intervenors:

Stephen Malouf
Lisa Blue
Baron & Blue
Erin Nance Hill
Law Offices of Stephen F. Malouf, PC
Aldous Law Firm
Charla Aldous
Page 4 of 79

Charla Aldous, PC
Aldous Law Firm
R. Dean Gresham
Campbell Harrison & Dagley LLP
Calloway, Norris, Burdette & Weber, PLLC

Movants:

Ellen Flowers
Joyce Waller
Michael V. Bourland
Stewart H. Thomas
Tom M. Dees, III
Shamoun & Norman, LLP

Interested Parties:

Ron Cresswell
Locke Lord Bissell & Liddell LLP
XTO Energy Inc.
Jonathan Nockels
Brent Walker
David Evans
Gresham PC

Receiver: Daniel L. Jackson

Trustees:

Larry E. Jacobs
Peggy Allison
Danny Bowlin
Chester Donnally

Michael Mowla, attorney for Albert G. Hill III on appeal (lead) and before the
District Court, 445 E. FM 1382 #3-718, Cedar Hill, Texas 75104, phone 972-795-
2401, fax 972-692-6636, email michael@mowlalaw.com.

Page 5 of 79

Leonard Thomas (Butch) Bradt, attorney for Albert G. Hill III on appeal and
before the District Court (lead), 14015 Southwest Freeway Suite 4, Sugar Land,
TX 77478, phone 281-201-0700, fax 281-201-1202, email ltbradt@flash.net.

Iian D. Jablon, Aarti K. Wilson, John C. Hueston, Michael G. Ermer, and
Marshall A. Camp, (prior) attorneys for Albert G. Hill III before the District
Court, 1800 Avenue of the Stars, Suite 900, Los Angeles, California 90067

Gregory S. Coleman, Christian J. Ward, Richard B. Farrer, Eric Chenoweth,
and Autry Ross, (prior) attorneys for Albert G. Hill III before the District
Court, Yetter Coleman LLP, 221 West 6th Street, Suite 750, Austin, Texas 78701.

Mark E. Smith, R. Wayne Gordon, and Touchstone Bernays Johnston, (prior)
attorneys for Albert G. Hill III before the District Court, Beall Smith &
Stollenwerck LLP, 4040 Renaissance Tower, 1201 Elm Street, Dallas, Texas 75270

Alan Roy Struble, (prior) attorney for Albert G. Hill III before the District
Court, Alston & Bird LLP, 2200 Ross Avenue, Suite 3600, Dallas, Texas 75201.

Dana B. Taschner, (prior) attorney for Albert G. Hill III before the District
Court, 2049 Century Park East, Suite 1940, Los Angeles, California 90067.

Brent R. Walker, (prior) attorney for Albert G. Hill III before the District
Court, (prior) attorney for Intervenor Plaintiff Erin Nance Hill, and attorney
for Intervenor Plaintiff Aldous Law Firm, Aldous Law Firm, 2311 Cedar Springs
Road, Suite 2200, Dallas, Texas 75201.

Charla G. Aldous, (prior) attorney for Albert G. Hill III before the District
Court, (prior) attorney for Intervenor Plaintiff Erin Nance Hill, and attorney
for Intervenor Plaintiff Charla Aldous, Intervenor Plaintiff Aldous Law Firm,
Intervenor Plaintiff Charla Aldous, PC, and Respondent Aldous Law Firm,
Aldous Law Firm, 2311 Cedar Springs Road, Suite 2200, Dallas, Texas 75201

John H. Barr, John H. House, Jr., Lucas Radney, M. Forest Nelson, (prior)
attorneys for Intervenor Plaintiff Erin Nance Hill, Burt Barr & Associates, 203
East Colorado Boulevard, Dallas, Texas 75222.

Page 6 of 79

David W. Evans, (prior) attorney for Albert G. Hill III before the District
Court, and attorney for Intervenor Plaintiff Law Offices of Stephen F. Malouf,
PC, Law Offices of David Evans, 2811 Turtle Creek Boulevard Suite 1600, Dallas,
Texas 75219.

Dean D. Hunt, Matt R. Raley, and Michelle D. Pector, (prior) attorneys for
Albert G. Hill III before the District Court, Baker & Hostetler LLP, 1000
Louisiana, Suite 2000, Houston, Texas 77002.

W. Mark Lanier, Evan M. Janush, and Eugene R. Egdorf, (prior) attorneys for
Albert G. Hill III before the District Court, The Lanier Law Firm PC, 6810 FM
1960 West, Houston, Texas 77069.

James S. Renard, Melissa S. Yost, Michael J. Collins, William A. Brewer, III,
(prior) attorneys for Albert G. Hill III before the District Court, Bickel &
Brewer, 1717 Main Street, Suite 4800, Dallas, Texas 75201.

Stephen F. Malouf, Jonathan Andrew Nockels, (prior) attorneys for Albert G.
Hill III before the District Court, and attorney Intervenor Plaintiff Stephen
Malouf, The Law Offices of Stephen F. Malouf PC, 3811 Turtle Creek Boulevard,
Suite 1600, Dallas, Texas 75219.

Justin M. Campbell, III, Kenneth J. Fair, Robin L. Harrison, Suzanne E. Goss,
(prior) attorneys for Albert G. Hill III before the District Court, Campbell
Harrison & Dagley LLP, 4000 Two Houston Center, 909 Fannin Street, Suite
4000, Houston, Texas 77010

Lisa A. Blue, (prior) attorney for Albert G. Hill III before the District Court,
and attorney for Intervenor Plaintiff Lisa Blue and Intervenor Plaintiff Baron
& Blue, Baron & Blue, 5956 Sherry Lane, Suite 1616, Dallas, Texas 75225.

Elizabeth A. Scully and Mark A. Cymrot, (prior) attorneys for Albert G. Hill
III before the District Court, Baker & Hostetler LLP, 1050 Connecticut Avenue
NW, Suite 1100, Washington, DC 20036.

Page 7 of 79

R. Dean Gresham, (prior) attorney for Albert G. Hill III before the District
Court, attorneys for Respondent R. Dean Gresham and Interested Party
Gresham PC, Gresham PC, 2311 Cedar Springs Road, Suite 200, Dallas, Texas
75201.

George W. Bramblett, Jr., attorney for Tom Hunt, Defendant/Appellee
Margaret Hunt Trust Estate, Defendant/Appellee Haroldson Lafayette Hunt
Jr. Trust Estate, Defendant/Appellee Brett Ringle, Defendant/Appellee John
W. Creecy, and Defendant/Appellee Margaret Keliher, Haynes & Boone, LLP,
2323 Victory Avenue, Suite 700, Dallas, Texas 75219.

Carrie L. Huff, attorney for Tom Hunt, Defendant/Appellee John W. Creecy,
Defendant/Appellee Margaret Keliher , Defendant/Appellee Brett Ringle,
Trustee Danny Bowlin, Trustee Chester Donnally, Trustee Peggy Allison,
Margaret Hunt Trust Estate, and Defendant/Appellee Haroldson Lafayette
Hunt Jr. Trust Estate, Haynes & Boone, LLP, 2323 Victory Avenue, Suite 700,
Dallas, Texas 75219.

Joseph W. Wagner, attorney for Defendant/Appellee Tom Hunt,
Defendant/Appellee Margaret Hunt Trust Estate, and Defendant/Appellee
Haroldson Lafayette Hunt Jr. Trust Estate, Haynes & Boone LLP, 901 Main
Street, Suite 3100, Dallas, Texas 75202.

David A. Dodds, attorney for Defendant/Appellee Tom Hunt,
Defendant/Appellee Haroldson Lafayette Hunt Jr. Trust Estate,
Defendant/Appellee Brett Ringle, Defendant/Appellee John W. Creecy, and
Defendant/Appellee Margaret Keliher, Haynes & Boone LLP, 2323 Victory
Avenue, Suite 700, Dallas, Texas 75219.

David J. Beck, attorney for Defendant/Appellee Tom Hunt,
Defendant/Appellee Margaret Hunt Trust Estate Murray Fogler,
Defendant/Appellee Margaret Keliher, Beck Redden & Secrest LLP, 1221
McKinney Street, Suite 4500, Houston, Texas 77010.

Page 8 of 79

Murray Fogler, attorney for Defendant/Appellee Tom Hunt,
Defendant/Appellee Margaret Hunt Trust Estate Murray Fogler,
Defendant/Appellee Margaret Keliher, Beck Redden & Secrest LLP, 1221
McKinney Street, Suite 4500, Houston, Texas 77010.

Harry M. Reasoner, attorney for Defendant/Appellee Ivan Irwin, Jr., Vinson &
Elkins LLP, 1001 Fannin Street, Suite 2500, Houston, Texas 77002.

Michael L. Raiff, attorney for Defendant/Appellee Ivan Irwin, Jr. and
Defendant/Appellee Albert G. Hill, Jr., Gibson Dunn & Crutcher LLP, 2100
McKinney Avenue, Suite 1100, Dallas, Texas 75201.

William D. Sims, Jr., attorney for Defendant/Appellee Ivan Irwin, Jr., Vinson
& Elkins LLP, 2001 Ross Avenue, Suite 3700, Dallas, Texas 75201.

J. Keith Benedict, attorney for Defendant/Appellee Albert G. Hill, Jr., A G
Hill Partners LLC, 1601 Elm Street, Suite 5000, Dallas, Texas 75201.

Amanda R. Tyler, Eric W. Pinker, Kent D. Krabill, attorneys for
Defendant/Appellee Albert G. Hill, Jr. and Movant Joyce Waller, Lynn
Tillotson & Pinker LLP, 750 N. St. Paul Street, Suite 1400, Dallas, Texas 75201.

Michael P. Lynn, Jeremy A. Fielding, and Richard A. Smith, attorneys for
Defendant/Appellee Albert G. Hill, Jr., and Movant Joyce Waller, Lynn
Tillotson Pinker & Cox LLP, 2100 Ross Avenue, suite 2700, Dallas, Texas 75201.

C. Gregory Shamoun, Dennis M. Holmgren, James R. Tucker, and Jonathan J.
Cunningham, attorneys for Defendant/Appellee Albert G. Hill, Jr., and
Shamoun & Norman, LLP, Shamoun & Norman LLP, 1775 Wittington Place,
Suite 200 LB 25, Dallas, Texas 75234.

James C. Ho, attorney for Defendant/Appellee Albert G. Hill, Jr., Gibson
Dunn & Crutcher LLP, 2100 McKinney Avenue, Suite 1100, Dallas, Texas 75201.

Page 9 of 79

Robert H. Thomas and Peter M. Jung, attorneys for Defendant/Appellee
Albert G. Hill, Jr., Strasburger & Price, 901 Main Street, Suite 4300, Dallas,
Texas 75250.

Donald E. Godwin, Bruce W. Bowman, Jr., Israel R. Silvas, Jenny L.
Martinez, Robert J. McGuire, and W. Ira Bowman, attorneys for
Defendant/Appellee Alinda H. Wikert, Godwin Pappas & Ronquillo PC, 1201
Elm Street, Suite 1700, Dallas, Texas 75270.

Frank N. Ikard, Jr., Lauren K. Davis, Laurie Ratliff, and Mary E. Haught,
attorneys for Defendant/Appellee Lyda Hill, Ikard Golden PC, 400 West 15th
Street, Suite 975, Austin, Texas 78701.

James D. Brown and Michael P. Massad, attorneys for Defendant/Appellee
Lyda Hill, Winstead PC, 5400 Renaissance Tower, 1201 Elm Street, Dallas, Texas
75201.

Russell A. Devenport, attorney for Defendant/Appellee Lyda Hill, McDonald
Sanders, 777 Main Street, Suite 1300, Fort Worth, Texas 76102.

Stewart H. Thomas and Tom M. Dees, III, attorneys for Defendant/Appellee
Heather V. Washburne and Defendant/Appellee Elisa M. Summers, Hallett &
Perrin PC, 2001 Bryan Street, Suite 3900, Dallas, Texas 75201.

B. Patrick Shaw, attorney for Defendant/Appellee William Herbert Hunt,
Woodward & Shaw, 4849 Greenville Avenue, Suite 1111, Dallas, Texas 75206.

Stephen D. Susman, Thomas W. Paterson, and Stephen Shackelford, Jr.,
attorneys for Defendant/Appellee Brett Ringle and Defendant/Appellee John
W. Creecy, Susman Godfrey LLP, First Interstate Plaza, 1000 Louisiana Street,
Suite 1500, Houston, Texas 77002.

Frank L. Branson, Eric T. Stahl, and Quentin Brogdon, attorneys for
Defendant/Appellee Margaret Keliher, Law Offices of Frank L. Branson, 4514
Cole Avenue, Suite 1800, Dallas, Texas 75205.

Gilbert I. Low, attorney for Defendant/Appellee Margaret Keliher, Orgain Bell
& Tucker, P.O. Box 1751, 470 Orleans Street, Beaumont, Texas 77704.
Page 10 of 79

Alan S. Loewinsohn and Kerry F. Schonwald, Attorneys for Intervenor
Plaintiff Stephen Malouf, Intervenor Plaintiff Lisa Blue, Intervenor Plaintiff
Charla Aldous, Intervenor Plaintiff Baron & Blue, Intervenor Plaintiff Law
Offices of Stephen F. Malouf, PC, Intervenor Plaintiff Aldous Law Firm,
Intervenor Plaintiff Charla Aldous, PC, Respondent Aldous Law Firm,
Interested Party Jonathan Nockels, Interested Party Brent Walker, Interested
Party David Evans, Interested Party Gresham PC, and Respondent R. Dean
Gresham, Loewinsohn Flegle Deary LLP, 12377 Merit Drive, Suite 900, Dallas,
Texas 75251.

Ryan K. McComber and A. Erin Dwyer, attorneys for Movant Ellen Flowers,
Figari & Davenport, L.L.P., 3400 Bank of America Plaza, 901 Main Street, LB 125,
Dallas, Texas 75202.

David J. Goodman, William R. Korb, Jr., Eric J. Millner, attorneys for Movant
Michael V. Bourland, Bourland Wall & Wenzel PC, 301 Commerce Street, Suite
1500, Fort Worth, Texas 76102.

C. Shawn Cleveland, Emily C. McCall, and Matthew D. Orwig, attorneys for
Movant Stewart H. Thomas and Movant Tom M. Dees, III, SNR Denton US
LLP, 2000 McKinney Avenue, Suite 1900, Dallas, Texas 75201.

Daniel D. Tostrud, attorney for Movant Shamoun & Norman, LLP, Cobb
Martinez Woodward PLLC, 1700 Pacific, Suite 3100, Dallas, Texas 75201.

Angela M. Hough, attorney for Movant Shamoun & Norman, LLP, Hermes
Sargent Bates LLP, 901 Main Street, Suite 5200, Dallas, Texas 75202.

Michael K. Hurst, Guardian Ad Litem, Gruber Hurst Johansen & Hail LLP,
1445 Ross Avenue, Suite 2500, Dallas, Texas 75202.

Dena DeNooyer Stroh, Guardian Ad Litem, Gruber Hurst Johansen & Hail
LLP, 1445 Ross Avenue, Suite 2500, Dallas, Texas 75202.

Page 11 of 79

William A. Barr, attorney for Interested Party Ron Cresswell and Interested
Party Locke Lord Bissell & Liddell LLP, 2200 Ross Avenue, Suite 2200, Dallas,
Texas 75201.

Sara N. Copeland, attorney for Interested Party Ron Cresswell and Interested
Party Locke Lord Bissell & Liddell LLP, 2200 Ross Avenue, Suite 2200, Dallas,
Texas 75201.

Mitchell M. Murphy, counsel for Interested Party XTO Energy Inc., Winstead
PC, 777 Main Street, Suite 1100, Fort Worth, Texas 76102.

Jeffrey C. King, counsel for Interested Party XTO Energy Inc., Winstead PC,
777 Main Street, Suite 1100, Fort Worth, Texas 76102.

Talmage Boston, attorney for Receiver Daniel L. Jackson, Winstead PC, 5400
Renaissance Tower, 1201 Elm Street, Dallas, Texas 75270.

Larry E. Jacobs, attorney for Trustee Larry E. Jacobs, Boyer Jacobs Short, Nine
Greenway Plaza, Suite 3100, Houston, Texas 77046.

Robert W. Calloway, attorney for Intervenor Campbell Harrison & Dagley
LLP and Intervenor Calloway, Norris, Burdette & Weber, PLLC, Calloway
Norris Burdette & Weber, 3811 Turtle Creek, Suite 400, Dallas, Texas 75219.

Mary C. Burdette, attorney for Intervenor Campbell Harrison & Dagley LLP
and Intervenor Calloway, Norris, Burdette & Weber, PLLC, Calloway Norris
Burdette & Weber, 3811 Turtle Creek, Suite 400, Dallas, Texas 75219.

Kenneth J. Fair, Robin L. Harrison, and Suzanne E. Goss, attorneys for
Intervenor Campbell Harrison & Dagley LLP and Intervenor Calloway,
Norris, Burdette & Weber, PLLC, Campbell Harrison & Dagley LLP, 4000 Two
Houston Center 909 Fannin Street, Suite 4000, Houston, Texas 77010.

Hon. Sam Lindsay, Presiding Judge of the United States District Court, 1100
Commerce Street, Room 1544, Dallas, Texas 75242, phone (214) 753-2365.

Page 12 of 79

Hon. Reed C. OConnor, Presiding Judge of the United States District Court
(Recused May 22, 2013), 1100 Commerce Street, Room 1310, Dallas, Texas
75242, phone (214) 753-2650, fax 214-753-2657.

Hon. Barbara Lynn, Presiding Judge of the United States District Court
(Recused May 22, 2013), 1100 Commerce Street, Room 1654, Dallas, Texas
75242, phone (214) 753-2420.

Hon. Jorge Solis, Presiding Judge of the United States District Court
(Recused September 26, 2013), 1100 Commerce Street, Room 1654, Dallas,
Texas 75242, phone (214) 753-2342, fax 214-753-2352.

Hon. David C. Godbey, Presiding Judge of the United States District Court
(Recused October 1, 2013), 1100 Commerce Street, Room 1358, Dallas, Texas
75242, phone 214-753-2700, fax 214-753-2707

Hon. Jayne Boyle, Presiding Judge of the United States District Court
75242, phone 214-753-2740, fax 214-753-2744

Hon. Sidney Fitzwater, Presiding Judge of the United States District Court
75242, phone 214-753-2333.

Hon. Ed Kinkeade, Presiding Judge of the United States District Court
75242, phone 214-753-2720, fax 214-753-2727

Hon. Renee Toliver, Magistrate Judge of the United States District Court,
1100 Commerce Street, Room 1407, Dallas, Texas 75242.

Hon. Paul Stickney, Magistrate Judge of the United States District Court,
1100 Commerce Street, Room 1611, Dallas, Texas 75242

/s/ Michael Mowla

By: Michael Mowla
Attorney for Mr. Hill III
Page 13 of 79

II. Statement Regarding Oral Argument
Appellant Mr. Hill III requests oral argument. See Fed. Rule App. Proc.
34(a)(1) (2014) & 5th Cir. Rule 28.2.3 (2014). The facts and arguments are
thoroughly briefed. However, because the underlying litigation: (1) involves
numerous parties and other participants, (2) was complex, and (3) has a lengthy
record, oral argument may assist this Court.

Page 14 of 79

III. Table of Contents
I. Certificate of Interested Persons .................................................................... 3
II. Statement Regarding Oral Argument ...........................................................13
III. Table of Contents ........................................................................................ 14
IV. Table of Authorities ...................................................................................... 17
V. Statement of Jurisdiction ............................................................................. 22
VI. Issues Presented for Review......................................................................... 24
VII. Statement of the Case and Facts .................................................................. 25
1. Introduction ................................................................................................. 25
2. Evidence supporting the Camuel 60(b) Motion. .......................................... 27
3. Opinion of the District Court denying the Camuel 60(b) Motion ................ 35
4. Judge OConnor recuses himself, and then six other district judges
recuse themselves. ....................................................................................... 36
5. Appellants OConnor 60(b) Motion .......................................................... 37
6. The district court denies Appellants OConnor 60(b) Motion .................. 38
7. Appellant files the Toliver Recusal Motion ................................................. 39
8. The district court denies the Toliver Recusal Motion. ................................ 41
VIII. Summary of the Arguments ............................................................... 44
IX. Issues with Argument and Authorities ......................................................... 46
1. Issue One: The district court abused its discretion when it denied
Appellants Camuel 60(b) Motion because the testimony of Camuel is
new evidence that establishes that there may be concealed irrevocable
disclaimers and fraud regarding the Hassie estate. At minimum,
Appellant is entitled to discovery on this issue, and the district court
abused its discretion by denying Appellants request for discovery. ............ 46
A. Standard of review ............................................................................. 46
B. Rule 60(b) .......................................................................................... 46
Page 15 of 79

C. Appellant exercised due diligence in attempting to uncover the
fraud but due diligence could not have discovered the existence
of a disclaimer by Hill Jr. on Hassies estate. ..................................... 49
D. The testimony of Camuel that trust attorneys Mureiko and
Parker told Camuel of the existence of a disclaimer on the
Hassie Estate is new evidence, is not hearsay, and establishes
that fraud was committed against Appellant and upon the
district court. ..................................................................................... 53
E. At minimum, Appellant is entitled to discovery on this issue,
and the district court abused its discretion by denying
Appellants request for discovery. ..................................................... 62
F. Conclusion ......................................................................................... 64
2. Issue Two: The district court abused its discretion when it denied
Appellants OConnor 60(b) Motion because: (1) the motion is not
foreclosed by the mandate rule, and (2) without the opportunity to
conduct at least some limited discovery as to why OConnor recused
himself without explanation after refusing to do so when Appellant
requested, it is impossible to provide additional evidence to
establish that OConnor violated 28 U.S.C. 455 by failing to recuse
himself earlier. ............................................................................................. 65
A. Appellants OConnor 60(b) Motion is not foreclosed by the
mandate rule ...................................................................................... 65
B. Without the opportunity to conduct at least some limited
discovery as to why OConnor recused himself without
explanation after refusing to do so when Appellant requested, it
is impossible to provide additional evidence to establish that
OConnor violated 28 U.S.C. 455 by failing to recuse himself
earlier. ................................................................................................ 67
C. Conclusion ......................................................................................... 70
3. Issue Three: If a federal judges close relationship with a person, who
is a lawyer on Case A, causes the judge to determine under 28 U.S.C.
455 that recusal is required in Case A due to the appearance of
impropriety, would recusal of the federal judge also be required in
Case B where the same person is a material witness?.................................... 71
A. Introduction ........................................................................................ 71
Page 16 of 79

B. The appearance of impropriety or partiality alone requires a
district judge to recuse herself. .......................................................... 72
C. Estoppel by conduct required Toliver to recuse herself in
Appellants case. ............................................................................... 75
D. Conclusion ......................................................................................... 77
X. Conclusion and Prayer for Relief ................................................................. 78
XI. Certificate of Service ................................................................................... 79
XII. Certificate of Compliance with Fed. Rule App. Proc. 32(a) ......................... 79

Page 17 of 79

IV. Table of Authorities
Cases
Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417 (5th Cir. 2006) .......................... 66
Ag Pro, Inc. v. Sakraida, 512 F.2d 141 (5th Cir. 1975), reversed on
other grounds, 425 U.S. 273 (1976) ........................................................................ 47
All Freight Sys. v. James, 115 F. Appx. 182 (5th Cir. 2004) ................................... 58
Alvestad v. Monsanto Co., 671 F.2d 908 (5th Cir. 1982) ....................................... 46
Apotex Corp. v. Merck & Co., Inc., 507 F.3d 1357 (Fed. Cir. 2007) ................. 57, 58
Arizona v. California, 460 U.S. 605 (1983) ............................................................ 67
Bulloch v. United States, 721 F.2d 713 (10th Cir. 1983) ......................................... 57
Chavez v. Balesh, 704 F.2d 774 (5th Cir. 1983) ...................................................... 23
Christiansen v. National Savings & Trust Co., 683 F.2d 520 (D.C. Cir.
1982) ...................................................................................................................... 73
Ciacciarella v Bronko, 613 F.Supp.2d 262 (D.C. Conn. 2009) ............................... 62
Davis v. Mobil Oil Exploration & Producing Southeast, Inc., 864 F.2d
1171 (5th Cir. 1989) ................................................................................................ 61
Diaz v. Methodist Hosp., 46 F.3d 492 (5th Cir. 1995) ........................................... 56
Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996) (en banc) ....................... 46
Ernst & Young, L.L.P. v. Pacific Mutual Life Ins. Co., 51 S.W.3d 573,
(Tex. 2001) ............................................................................................................ 55
Ex parte McCarthy, 1 K. B. 256 (1923) .................................................................. 74
Federal Deposit Ins. Corp. v. Castle, 781 F.2d 1101 (5th Cir. 1986) ....................... 49
First Nat. Bank v. Lustig, 96 F.3d 1554 (5th Cir. 1996) .......................................... 58
Gay v. United States, 411 U.S. 974 (1973) .............................................................. 74
General Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444 (5th Cir.
2007) ...................................................................................................................... 65
Goldstein v. MCI Worldcom, 340 F.3d 238 (5th Cir. 2003) .................................. 47
Gov. Fin. Servs. One Ltd. Partnership v. Peyton Place, 62 F.3d 767
(5th Cir. 1995) ........................................................................................................ 47
Page 18 of 79

Gov. Fin. Servs. One Ltd. Partnership v. Peyton Place, Inc., 62 F.3d
767 (5th Cir. 1995) .................................................................................................. 56
Green v Foley, 856 F.2d 660 (4th Cir. 1988), cert. denied, 490 US
1031 (1989) ............................................................................................................. 56
Hall v. Small Business Admin., 695 F.2d 175 (5th Cir. 1983) ................................. 73
Harre v. A.H. Robins Co., 750 F.2d 1501 (11th Cir. 1985) ...................................... 63
Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453 (5th Cir. 1992) ..................... 48
Harrison v. Formosa Plastics Corp. Tex., 776 F.Supp.2d 433 (S.D.
Tex. 2011) .............................................................................................................. 61
Henderson v. Dept of Pub. Safety, 901 F.2d 1288 (5th Cir. 1990) ................... 43, 75
Hesling v. CSX Transp., Inc., 396 F.3d 632 (5th Cir. 2005) .................................. 57
Illinois Cent. Gulf R.R. v International Paper Co., 889 F.2d 536 (5th
Cir. 1989) ............................................................................................................... 65
In re M/V Peacock, 809 F.2d 1403 (9th Cir. 1987) ................................................ 63
In re Murchison, 349 U.S. 133 (1955) ..................................................................... 73
In re United States, 441 F.3d 44 (1st Cir. 2006) ..................................................... 68
Inter Financing Exchange v. Bartlett & Co., 659 F.2d 1320 (5th Cir.
1981) ....................................................................................................................... 49
Jackson v. Thaler, 348 F. Appx. 29 (5th Cir. 2009) ............................................... 58
Kennedy v. Texas Utils., 179 F.3d 258 (5th Cir. 1999) ........................................... 46
Laxton v. Gap Inc., 333 F.3d 572 (5th Cir. 2003) ................................................... 59
Leather Mfrs.' Nat. Bank v. Morgan, 117 U.S. 96 (1886) ....................................... 76
Ledet v. United States, 297 F.2d 737 (5th Cir. 1962) ............................................. 47
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) .................. 67, 69
Liteky v. United States, 510 U.S. 540 (1994) (Kennedy, J. concurring) ................. 73
Lopez v. Cronk, No. 03-1860, 2004 U.S. Dist. LEXIS 10936, 2004
WL 1336421 (E.D. La. 2004) ................................................................................. 60
Marcel v. Placid Oil Co., 11 F.3d 563 (5th Cir. 1994) ............................................. 62
McFarland v. Campbell, 213 F.2d 855 (5th Cir. 1954) ........................................... 76
Page 19 of 79

Minneapolis, St. Paul, & Sault Ste. Marie Ry. Co. v. Moquin, 283 U.S.
520 (1931) ............................................................................................................... 63
MMAR Group, Inc. v. Dow Jones & Co., 187 F.R.D. 282 (S.D. Tex.
1999) ...................................................................................................................... 63
Montgomery v. Hall, 592 F.2d 278 (5th Cir. 1979) ................................................ 56
Montgomery v. Hall, 592 F.2d 278 (5th Cir. 1979) ................................................ 56
Morgan v. R.R. Co., 96 U.S. 716 (1878) ................................................................. 76
Nekolny v Painter, 653 F.2d 1164 (7th Cir. 1981), cert. denied, 455
U.S. 1021 (1982) ..................................................................................................... 61
Offutt v. United States, 348 U.S. 11 (1954) ............................................................ 73
Parrish v. Bd. of Commrs of Ala. State Bar, 524 F.2d 98 (5th Cir.
1975) ................................................................................................................. 42, 75
Quinette v. Bisso, 136 F. 825 (5th Cir. 1905) .......................................................... 59
Rep. of Panama v. Am. Tobacco Co. 217 F.3d 343 (5th Cir. 2000) ........................ 67
Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir. 1978) ........................... 48, 58, 62
Seaboldt v. Pennsylvania Railroad Company, 290 F.2d 296 (3d Cir.
1961) ....................................................................................................................... 63
See Mann v. Bank of N.Y. Mellon, No. 4:12-CV-2618, 2013 U.S. Dist.
LEXIS 131749, 2013 WL 5231482 (S.D. Tex. 2013) ............................................... 77
Shell Oil Co. v. U.S., 672 F.3d 1283 (Fed. Cir. 2012) ............................................. 67
Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382 (5th Cir. 1978) .......................... 23
Square Construction Co. v. Washington Metropolitan Area Transit
Auth., 657 F.2d 68 (4th Cir. 1981) ......................................................................... 55
Square Construction Co. v. Washington Metropolitan Area Transit
Authority, 657 F.2d 68 (4th Cir. 1981) ................................................................... 63
Stridiron v. Stridiron, 698 F.2d 204 (3d Cir. 1983) ................................................ 63
Terrell v. Household Goods Carriers' Bureau, 494 F.2d 16 (5th Cir.
1974), cert. denied, 419 U.S. 987 (1974) ................................................................. 67
Thompson v. First Nat. Bank of Toledo, Ohio, 111 US 529 (1884) ........................ 76
Trans Mississippi Corp. v. United States, 494 F.2d 770 (5th Cir.
1974) ...................................................................................................................... 47
Page 20 of 79

Trenholm v. Ratcliff, 646 S.W.2d 927 (Tex. 1983) ................................................ 55
United States v. 329.73 Acres of Land, 695 F.2d 922 (5th Cir. 1983) ..................... 50
United States v. Archundia, 242 Fed. Appx. 278 (5th Cir. 2007) .......................... 66
United States v. Becerra, 155 F.3d 740 (5th Cir. 1998) .......................................... 66
United States v. Bray, 546 F.2d 851 (10th Cir. 1976) ............................................. 68
United States v. City of New Orleans, 731 F.3d 434 (5th Cir. 2013) ................ 47, 48
United States v. Cooley, 1 F.3d 985 (10th Cir. 1993) ............................................. 68
United States v. Cotton, 535 U.S. 625 (2002) ........................................................ 61
United States v. Jordan, 49 F.3d 152 (5th Cir. 1995) .............................................. 67
United States v. Lee, 358 F.3d 315 (5th Cir. 2004) ................................................ 66
United States v. Matthews, 312 F.3d 652 (5th Cir. 2002) ................................ 65, 66
United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) ............................ 68
United States v. O'Neil, 709 F.2d 361 (5th Cir. 1983) ............................................ 23
United States v. Pineiro, 470 F.3d 200 (5th Cir. 2006) .......................................... 65
United States v. Richards, 204 F.3d 177 (5th Cir. 2000), cert. denied
sub nom, 531 U.S. 826 (2000) ................................................................................ 61
Vehicle Removal Corp. v. Lopez (In re Lopez), 269 B.R. 607 (N.D.
Tex. 2001) .............................................................................................................. 50
Washington v. Patlis, 916 F.2d 1036 (5th Cir. 1990) .............................................. 56
White v. Murtha, 377 F.2d 428 (5th Cir. 1967) ...................................................... 66
Wilson v. Jones, 45 S.W.2d 572 (Tex. Comm. App. 1932) ..................................... 55
Wilson v. Thompson, 638 F.2d 801 (5th Cir. 1981) ............................................... 63
Statutes
28 U.S.C. 1291 (2014) ......................................................................................... 23
28 U.S.C. 1441 (2007) ......................................................................................... 22
28 U.S.C. 455 (2014) ............................................................................... 69, 70, 72
Other Authorities
Black's Law Dictionary (7th ed. 1999) .............................................................. 50, 59
Page 21 of 79

Hearings on S.1064, To Broaden and Clarify the Grounds for Judicial
Disqualification, before the Subcomm. on Improvements in Judicial
Machinery of the Senate Comm. on the Judiciary, 93rd Cong., 1st
Sess. 16 (1971) (statement of Senator Bayh) ........................................................... 73
Restatement (Second) of Torts 531 (1977) .......................................................... 55
Stewart C., Abuse of Power and Judicial Misconduct: A Reflection of
Contemporary Ethical Issues Facing Judges, 1 U. St. Thomas L.J. 464
(2003) .................................................................................................................... 74
Wests Legal Thesaurus / Dictionary (West 1986) ................................................ 50
Rules
5th Cir. Rule 28.2.1 (2014) ....................................................................................... 3
5th Cir. Rule 28.2.3 (2014) ......................................................................................13
5th Cir. Rule 31.1 (2014) ......................................................................................... 79
5th Cir. Rule 32.3 (2014) ........................................................................................ 79
Fed. Rule App. Proc. 28 (2014) .................................................................. 23, 24, 44
Fed. Rule App. Proc. 32 (2014) .............................................................................. 79
Fed. Rule App. Proc. 34 (2014) ...............................................................................13
Fed. Rule App. Proc. 4 (2014) ................................................................................ 23
Fed. Rule Civ. Proc. 60 (2014) ........................................................................ passim
Fed. Rule Evid. 801 (2014) ..................................................................................... 61

Page 22 of 79

V. Statement of Jurisdiction

Defendants-Appellees invoked the district courts jurisdiction under 28
U.S.C. 1441 (a) (2007), which allows the removal of any civil action brought in a
State Court of which the district courts of the United States have original
jurisdiction. The final orders that are appealed in this case are entitled as follows:
(1) an Order dated April 17, 2014 (Camuel 60(b) Order) (ROA. 18781-18786)
1
in
which the district court denied Appellants Motion for Leave of Court to File an
Emergency Motion for Relief Pursuant to Federal Rule of Civil Procedure 60(b)
Based on New Testimony by Former IRS Attorney Cynthia Camuel (Camuel
60(b) Motion) (ROA. 18266-18751); (2) a Memorandum Opinion and Order
dated April 17, 2014 (OConnor 60(b) Order) (ROA. 18771-18780), in which the
district court denied Appellants Supplemental Motion Pursuant to Rule 60(b) to
Vacate Global Settlement Agreement in Light of the Honorable Reed OConnors
Recusal, or in the Alternative, for Leave to Take Discovery (OConnor 60(b)
Motion) (ROA. 35171-35307), and (3) a Memorandum Opinion and Order dated
April 15, 2014 (Toliver Recusal Order) (ROA. 18763-18770), in which the
district court denied Appellants Motion to Recuse Magistrate Judge Renee

1
The Record on Appeal is referenced throughout this Brief as ROA followed by the page
number of the record.

Page 23 of 79

Toliver (Toliver Recusal Motion) (ROA. 18096-18113).
2

On April 22, 2014, a timely Notice of Appeal was filed by Appellant, in
which Appellant cited all three orders listed above. (ROA. 18787-18788); See Fed.
Rule App. Proc. 4 (2014). This Court has jurisdiction over this appeal under 28
U.S.C. 1291 (2014). Further, the denial of a motion brought under Federal Rule
of Civil Procedure 60(b) is a final, appealable order. See Silas v. Sears, Roebuck &
Co., Inc., 586 F.2d 382, 384 (5th Cir. 1978). An appeal of a denial of a motion
brought under Rule 60(b) addresses not the merits of the underlying judgment, but
only the denial of the motion. United States v. ONeil, 709 F.2d 361, 373 (5th Cir.
1983); Chavez v. Balesh, 704 F.2d 774, 777 (5th Cir. 1983). Thus, this Court has
jurisdiction over this appeal. See Fed. Rule App. Proc. 28(a)(4) (2014).

2
Although the Toliver Recusal Order references Doc 524 as Appellants motion to recuse
Magistrate Judge Toliver, Doc 540 as Tolivers Order denying the motion to recuse, and
Doc 543 as Appellants Objections to Tolivers Order denying the motion to recuse, these
document numbers actually pertain to documents filed under severed cause number 3:10-CV-
2269. In the case before this Court, the appeal of cause number 3:07-CV-02020, Appellants
motion to recuse Toliver is actually ECF 1380 (ROA.18096-18118), and the district court denied
the motion to recuse Toliver based solely upon ECF 1380. In 3:07-CV-02020, Toliver did not
enter an order denying the motion to recuse her, so no subsequent objections were filed by
Appellant in 3:07-CV-02020 on the Toliver recusal. Further, in ECF 1475 (ROA.18763-18770),
the district court held ...recusal is not required in Case No. 3:07-CV-2020...; or 3:12-CV-
4599...; and to the extent the Hills move to recuse ...Toliver, the court denies the motions. The
court directs the Clerk ... to file a copy of this Memorandum Opinion and Order in Civil Action
Nos. 3:07-CV-2020... and 3:12-CV-4599...

Page 24 of 79

VI. Issues Presented for Review
The following issues are presented for appellate review [See Fed. Rule App.
Proc. 28(a)(5) (2014)]:
Issue One: The district court abused its discretion when it denied Appellants
Camuel 60(b) Motion because the testimony of Camuel is new evidence that
establishes that there may be concealed irrevocable disclaimers and fraud regarding
the Hassie estate. At minimum, Appellant is entitled to discovery on this issue,
and the district court abused its discretion by denying Appellants request for
discovery.

Issue Two: The district court abused its discretion when it denied Appellants
OConnor 60(b) Motion because: (1) the motion is not foreclosed by the mandate
rule, and (2) without the opportunity to conduct at least some limited discovery as
to why OConnor recused himself without explanation after refusing to do so when
Appellant requested, it is impossible to provide additional evidence to establish
that OConnor violated 28 U.S.C. 455 by failing to recuse himself earlier.

Issue Three: If a federal judges close relationship with a person, who is a lawyer on
Case A, causes the judge to determine under 28 U.S.C. 455 that recusal is
required in Case A due to the appearance of impropriety, would recusal of the
federal judge also be required in Case B where the same person is a material
witness?

Page 25 of 79

VII. Statement of the Case and Facts
1. Introduction
The background facts of this case are extensive and known to this court, so
Appellant will spare the Court an extensive background summary. Appellant
instead provides the following brief summary: In 1935, H.L. Hunt established two
trusts in the names of his eldest children: the Margaret Hunt Trust Estate
(MHTE) and the Haroldson (Hassie) L. Hunt, Jr. Trust Estate (HHTE).
(ROA. 18124). Margaret Hunt had three children, one of whom is Albert G. Hill,
Jr. (Hill Jr.), and all of whom were beneficiaries of both trusts. Id. Hill Jr. also
had three children, one of whom is Appellant, and all of whom also are beneficiaries
of both trusts. Id. The Appellees are the trustees, advisory boards of the trusts,
other beneficiaries of the trusts, a guardian ad litem appointed by the district court
to represent the interests of Appellants minor children, and several of Appellants
former attorneys in the underlying litigation. Id.
On December 3, 2007, Appellant filed suit in the 14th Judicial District Court
of Dallas County, Texas, alleging wrongdoing in the management of the trusts
under RICO, breaches of fiduciary duties and trust against Tom Hunt and
Schilling, a demand for the accounting of HHTE against Tom Hunt, fraud against
Tom Hunt, civil conspiracy against all the defendants, aiding and abetting breaches
of fiduciary duty against Schilling, Irwin, Hill Jr., Wikert, and Lyda Hill, aiding and
Page 26 of 79

abetting fraud against Schilling, Irwin, Hill Jr., Wikert, and Lyda Hill, asked that
Tom Hunt be removed as trustee of the trusts, asked that Schilling be removed as
an advisory board member of the trusts, asked that receivers be appointed for the
trusts, asked that successor trustees and board members be appointed to the trusts,
and sought a declaration that he is a direct and vested beneficiary of the MHTE.
(ROA. 276-321, 18124-18125).
The defendants removed the case to federal court. (ROA. 245-251). After
over two years of litigation, on May 13, 2010, the parties entered into a Global
Settlement and Mutual Release Agreement (GSA). (ROA. 18125). The GSA
left a number of details and considerable documentation to be implemented under
the jurisdiction of the district court. Id. On November 8, 2010, after considering
various proposed judgments and arguments from the parties concerning the
implementation of the GSA, the district court entered its Final Judgment. (ROA.
18125, 28757-28887).
After entry of the final judgment, Appellant filed a motion to alter or amend
the Final Judgment, challenging on various grounds the Final Judgments
implementation of the GSA. (ROA. 18125, 29078-29099). Then on March 12,
2012, Appellant filed a motion seeking to recuse Judge OConnor based upon the
discovery that OConnors spouse owns a significant amount of securities in
Page 27 of 79

ExxonMobil Corporation (Exxon), which through acquisitions that took place
during the pendency of the litigation, came to own the former Hunt Petroleum
Company, the major asset of the MHTE and HHTE trusts. (ROA. 18125, 31770-
31810). The district court denied the motion as untimely filed and on the merits,
and this Court affirmed the district courts decision. (ROA. 18124-18134).
2. Evidence supporting the Camuel 60(b) Motion.
On March 24, 2014, Appellant filed the Camuel 60(b) Motion (ROA. 18266-
18751). The evidence that forms the basis of this motion was discovered on
February 27, 2014, when as part of the discovery process of a whistleblower lawsuit
Appellant filed against the Internal Revenue Service, Appellants attorney deposed
Cynthia Camuel, a former long-time attorney for the Internal Revenue Service.
(ROA. 18302-18638).
The background facts leading up to the February 27, 2014 discovery are as
follows: on March 22, 2005, in favor of his children, Hill Jr. executed an irrevocable
disclaimer of most of his interests in the MHTE. (ROA. 7066-7068, 18278); The
effect of Hill Jr.s disclaimer was that when Margaret Hill dies, Appellant and his
sisters become current beneficiaries of the MHTE with the right to receive
discretionary distributions of trust income for 21 years after Margaret Hills death.
Page 28 of 79

(ROA. 7066-7068, 18278). After 21 years, provided Hill or his sisters are still alive,
they receive the distribution of the trust corpus upon termination of the trust. Id.
On October 9, 2007, Hill Jr. executed an updated disclaimer that
reaffirmed the original March 22, 2005 disclaimer, but which included certain
revisions that were intended to avoid drawing IRS scrutiny to a tax fraud that was
simultaneously being perpetrated by certain Defendants with respect to the
HHTE. (ROA. 11588-11592). After Hassies Hunts death in 2005, Hassie Hunts
Estate attempted to conceal from the IRS the fact that Hassie had exercised a
general power of appointment over the HHTE by devising his interest to Margaret
Hills descendants in his will. (ROA. 25606-25609). The exercise of a general
power of appointment constituted a taxable event which, if disclosed to the IRS,
would have required Hassie Hunts Estate to pay in excess of $100 million in
additional taxes. (ROA. 18279). However, Hill Jr.s original 2005 disclaimer
explicitly stated that Hill Jr. was exercising a general power of appointment with
respect to the MHTE. (ROA. 7066-7068). Since the MHTE instrument is
identical to the HHTE instrument, Hill Jr.s reference to a general power was
directly contrary to the position that the family was taking in connection with the
HHTE. Hill Jr.s updated 2007 disclaimer (which bore a March 2005 date)
Page 29 of 79

removed all reference to a general power of appointment, with the hope that the
HHTE might get under the radar screen of the IRS. (ROA. 12261-12262).
After Margaret Hills death on June 14, 2007, all parties acted on the validity
of this disclaimer. Then in pleadings in state court filed four months after
Margarets death, by asserting that he had been incompetent at the time he
signed the original MHTE disclaimer in 2005, Hill Jr. sought to declare invalid the
irrevocable disclaimers that made Appellant and his siblings current beneficiaries of
the MHTE. (ROA. 11592, 19160-19347). Appellant then filed the suit referenced
above, seeking various forms of relief, including a declaration of his beneficiary
status as to the MHTE and the HHTE, along with injunctive relief requiring
certain of the defendants to make available trust documents that he was entitled to
review because of his beneficiary status. (ROA. 276-321, 18124-18125).
A key issue in the litigation in the district court was whether the MHTE
disclaimers signed by Hill Jr. were valid and enforceable. (ROA. 18280). On
September 3, 2009, Appellant filed a motion for partial summary judgment as to
whether he was a current beneficiary of the MHTE because of Hill Jr.s execution
of the two virtually identical irrevocable disclaimers, the first in 2005, and the
updated disclaimer from 2007. (ROA. 7055-7188). Hill Jr. opposed Appellants
motion, and submitted his own affidavit and an affidavit from his employee, Joyce
Page 30 of 79

Waller, falsely attesting that both disclaimers were executed on March 22, 2005.
(ROA. 21400-21434, 21461-21463). Hill Jr. asserted that he had been incapacitated
in 2005, and was therefore not competent to sign a valid disclaimer at that time.
(ROA. 21371-21393, 21400-21434, 21461-21463). Judge OConnor found that Hill
Jr.s submissions created a genuine issue of material fact as to whether the
disclaimers were valid, and therefore denied Appellants motion. (ROA. 9041-
9054).
After the Court denied Appellants motion for partial summary judgment,
Appellant submitted new evidence demonstrating that the updated disclaimer had
indeed been created in 2007, and that Hill Jr. had caused it be affixed to the
signature page from a draft signed and executed in 2005 to create the false
appearance that the document had been signed and executed in 2005. (ROA.
25032-25108). This evidence included deposition testimony from Hill Jr.s
longtime confidante, Ivan Irwin, Jr., that had been obtained moments before
Appellants motion for summary judgment was denied in December 2009. (ROA.
25055-25108).
After an evidentiary hearing, on February 16, 2010, Judge OConnor
sanctioned Hill Jr. for submitting summary judgment materials in bad faith and
Page 31 of 79

with the intent of committing fraud on the Court, and for intentionally [lying]
under oath. (ROA. 10745-10784, 11392-11398).
The primary issue in Appellants Camuel 60(b) Motion was what rights
Appellant has with respect to the HHTE. Appellant has long believed that Hill Jr.
had also signed a disclaimer for both the MHTE and the HHTE in favor of
Appellant and his sisters. (ROA. 255581-25582). Since the HHTE contained
approximately $1 billion in assets at the time of Hassies death in 2005, a disclaimer
in favor of Appellant would potentially have been worth $100 million or more to
Appellant and his children. (ROA. 18491-18492).
The Defendants repeatedly represented to the district court, other courts,
and to Appellant that Appellant had no interest in the HHTE, and that no
disclaimers existed with respect to the HHTE. For instance, in a responsive
pleading entitled Answer of Albert G. Hill, Jr. to Trustees Motion for Summary
Judgment that Hill Jr. filed on March 24, 2009 with the Dallas Probate Court
Number 2, Hill Jr. stated, There is nothing to indicate that (Appellant) will ever
rise to the status of beneficiary, per stirpes of Margaret Hunt Hill. (ROA. 18640).
In fact, in this sentence, Hill Jr. specifically underlined the word ever. (ROA.
18640). In the same document, second page, Hill Jr. stated, Petitioner
Page 32 of 79

(Appellant) was intentionally omitted from any benefits of the (HHTE), and will
never rise to the status of being a beneficiary of said (HHTE). (ROA. 18641).
On July 2, 2009, John Creecy, then the trustee of the HHTE, filed a motion
for summary judgment in the Dallas Probate Court Number 2. (ROA. 18645).
Creecy alleged that Appellant did not have standing regarding the HHTE. (ROA.
18645). Creecy alleged that Appellant was not an interested person to the
HHTE because Appellant: (1) was not a current beneficiary of the HHTE; (2) a
vested remainder beneficiary of the HHTE; (3) was not a beneficiary of the HHTE
at all; and (4) had no interest in the HHTE at all. (ROA. 18645). On August 18,
2009, the Dallas Probate Court Number 2 granted Creecys motion for Summary
judgment, finding and ordering that Appellant had no standing with respect to the
HHTE. (ROA. 18672). And based upon these representations, the Dallas Probate
Court Number 2 dismissed Appellants claims relating to the HHTE on the basis
that he purportedly lacked standing because he was not a beneficiary of the trust.
(ROA. 18672).
The Camuel deposition arose out of a whistleblower petition filed by
Appellant in the United States Tax Court. (ROA. 18542-18543). Appellant argued
that certain members of his family took actions that were designed to evade taxes
that were owed by Hassies Estate relating to the HHTE. (ROA. 18542-18546).
Page 33 of 79

Appellant provided information concerning this tax evasion to the IRS in early
2008, and the IRS subsequently recovered more than $100 million in additional
taxes from Hassies Estate relating to the HHTE based upon the IRSs
determination that the HHTE was part of Hassies Estate due to the fact that
Hassie had exercised his power of appointment over the HHTE in his will. (ROA.
18494-18497). Appellant remains in litigation with the IRS concerning whether
information he provided assisted or led to the collection of those additional taxes.
(ROA. 18542-18543).
During the deposition, Camuel testified that she met with representatives of
Hassies Estate in 2008, who told her that Al Jr. had signed a disclaimer of all or
part of his interest in the in Hassies trust, but that that disclaimer was the subject
of litigation and was unresolved. (ROA. 18472, 18560). Camuel testified that this
information was provided to her in 2008 by attorneys William Mureiko and Emily
Parker of the law firm Thompson & Knight, who at the time represented Tom
Hunt, the executor of Hassies estate, which included the HHTE. (ROA. 18560,
18561). When the trustee attorneys provided Camuel this information in 2008,
Tom Hunt was a defendant in the district court case in his capacities as both the
executor of Hassies estate and the Trustee of the HHTE. (ROA. 18326-18327).
Page 34 of 79

Until Camuels deposition was taken on February 27, 2014, Appellant was
unaware that anyone had ever represented that a written disclaimer had been
signed by Hill Jr. to any of his interest in the HHTE. (ROA. 18301, 18298). As
indicated above, due to repeated representations by Hill Jr. and some of the other
defendants, until February 27, 2014, Appellant was led to believe that no disclaimer
to the HHTE was ever signed by Hill Jr. (ROA. 18298).
Before agreeing to settle this case as memorialized in the GSA, Appellant
had done everything he knew to determine whether Hill Jr. had disclaimed any
portion of his interest in the HHTE. (ROA. 18298). Appellants attorneys had
conducted extensive discovery trying to obtain a copy of any such disclaimer.
(ROA. 18298). No copy of the disclaimer was ever acknowledged to exist, much
less produced by Hill Jr. or other defendants during the underlying litigation.
(ROA. 18298). Based upon the continual denials of any disclaimer of any portion of
Hill Jr.s interest in the HHTE, and in the lack of evidence of any such disclaimer,
Appellant was led to believe that Hill Jr. had not disclaimed any portion of his
interest. (ROA. 18298). In reaching this belief, Appellant relied upon these
continued representations by Hill Jr. and other defendants. (ROA. 18298, 28792,
28793). As a result, Appellant gave up his and his childrens interest in
approximately $100 million in trust assets. (ROA. 18298). Finally, had Appellant
Page 35 of 79

known that the trustees attorneys represented to the IRS that Hill Jr. had executed
a written disclaimer as to his interest in the HHTE, Appellant would not have
agreed to settle the litigation. (ROA. 18299).
3. Opinion of the District Court denying the Camuel 60(b) Motion
In the Camuel 60(b) Order, the district court acknowledged the following
evidence in the Camuel deposition: (1) when asked who told her that Hill Jr.
executed a disclaimer with respect to his interest in the Hassie trust in favor of
Appellant, Camuel mentioned that she may have seen this in a newspaper article,
but the Estate told her that there was a disclaimer executed. (ROA. 18783,
18784). Based upon this, the district court found that it is exceedingly clear to
the court that the testimony of Camuel is not as Plaintiff suggests new evidence
that establishes that there was a heretofore concealed disclaimer regarding the
Hassie estate. Instead, Camuel apparently believed that the newspaper articles and
litigation concerning the disclaimer in the Margaret Hunt Hill estate instead
referred to the Hassie estate. (ROA. 18784). The court further found that [T]he
IRS attorneys fuzzy recollection of information that she read in the newspaper
which shows her confusion about the background of the disclaimer dispute is a
thin reed upon which to base a claim of fraud and to reopen the final judgment
entered into nearly four years ago. (ROA. 18784). And the district court found
Page 36 of 79

that [T]he hearsay testimony upon which (Appellant) relies establishes, at most,
that Camuel believed that she read a newspaper article about, and discussed,
litigation regarding a disclaimer by Al Jr., but that she had never seen such a
disclaimer and had no independent knowledge of its existence. (ROA. 18784). As
a result, on their face, (Appellants) contentions are insufficient to justify the
extraordinary relief of Rule 60(b). (ROA. 18784).
The district court also denied Appellants request for additional discovery
into this issue because (Appellant) has already had extensive opportunity to
conduct discovery into the existence of any disclaimer regarding the Hassie estate.
No further discovery is warranted and none will be allowed. (ROA. 18785).
4. Judge OConnor recuses himself, and then six other district judges
recuse themselves.
After several years of litigation on the issue of whether Judge OConnor
should have recused himself because the majority of his net worth was in the Exxon
securities (the value of which doubled while his wife worked there and his presiding
over the case), on May 22, 2013, without any explanation, Judge OConnor recused
himself from the case below and the severed cases (2269 and 4599). (ROA. 18119).
Since March 12, 2012 when Appellant filed his motion to recuse OConnor and
leading up to May 22, 2013, when Judge OConnor recused himself, no parties had
been added to the case, and one hearing had been held. (ROA. 140-152, 20533-
Page 37 of 79

20546, 18118). The only substantive order entered by the district court between
March 12, 2012 and May 22, 2013 was Judge OConnors order dated May 15,
2012, in which Judge OConnor denied the motion to recuse. (ROA. 17836, 20537).
After Judge OConnor recused himself, the cases were assigned to Judge
Barbara Lynn, who recused herself on the same day. (ROA. 18120). The cases
were assigned to Judge Jorge Solis, and after entering one substantive ruling (ROA.
18182-18192),
3
on September 26, 2013, Judge Solis recused himself. (ROA. 18199).
The cases were assigned to Judge David Godbey, and on October 1, 2013, Judge
Godbey recused himself. (ROA. 18202). The cases were assigned to Judge Jane
Boyle, who recused herself on October 2, 2013. (ROA. 18203). That same day,
both Judge Sidney Fitzwater and Judge Ed Kinkeade recused themselves. (ROA.
18204, 18205). The cases were finally assigned to Judge Sam Lindsay, who as of the
date of the filing of this Brief has not recused himself.
5. Appellants OConnor 60(b) Motion
On June 28, 2013, Appellant filed the OConnor 60(b) Motion. (ROA. 35171-
35307). The central point of Appellants motion was that if Judge OConnors
recusal was based upon his Exxon holdings, he should have recused himself long
before, and certainly before he conducted the ex parte meeting with Appellant in

3
Judge Soliss ruling is presently under appeal in cause number 13-10939.
Page 38 of 79

April 2010 in which he encouraged Appellant to settle the case. (ROA. 35176,
35265-35266). Because rulings entered after the point at which a district judge
should have recused itself are subject to vacatur, which includes the GSA entered
on May 13, 2010 (ROA. 18125), Appellant should have been granted relief under 28
U.S.C. 455 and Federal Rule of Civil Procedure 60(b). (ROA. 35177). In the
alternative, Appellant argued that he should be permitted to conduct discovery into
the reasons for Judge OConnors recusal before the OConnor 60(b) Motion is
resolved. (ROA. 35177).
Appellant argued that if Judge OConnors recusal concerns his financial
interest in Exxon, the recusal should have taken place when the Lanier Law Firm
raised the Exxon conflict with Judge OConnor in December 2009, which was well
before Judge OConnor held the ex parte meeting with Appellant in April 2010 and
pressured him to settle the case. (ROA. 35196). Citing the Liljeberg factors,
Appellant argued that the untimely recusal would clearly warrant relief under Rule
60(b). (ROA. 35196).
6. The district court denies Appellants OConnor 60(b) Motion
In the OConnor 60(b) Order, the district court found that (Appellant)
speculates that because Judge OConnor did not identify a basis for recusal, the
logical explanation for recusal is that he either suddenly determined that his
Page 39 of 79

equity ownership in Exxon created a recusable conflict or realized (but did not
disclose) that he had another conflict that predated the March 2012 filing of the
initial recusal motion. (ROA. 18773). The district court further found that
(Appellant) provides no additional evidence to establish that Judge OConnor
violated section 455 by failing to recuse himself earlier; instead, Plaintiff seeks leave
to conduct discovery, in the form of written interrogatories or a deposition of Judge
OConnor concerning the nature and timing of the conflict that resulted in his
decision to recuse. (ROA. 18773). The district court concluded that Appellants
Rule 60(b) motion is an attempt to violate the mandate rule and obtain a ruling
contrary to the final determination of the Fifth Circuit on this issue. (ROA.
18775).
7. Appellant files the Toliver Recusal Motion
On May 2, 2013, Appellant filed a motion to recuse Magistrate Judge
Toliver. (ROA. 18099). The basis of the motion is the relationship between Judge
Toliver and former Dallas County First Assistant Dallas District Attorney Terri
Moore. (ROA. 18102-18106). In prior pleadings, Appellant referenced evidence
showing that Lisa Blue influenced Dallas District Attorney Craig Watkins to obtain
indictments against Appellant and his wife, Erin Hill, on bogus mortgage fraud
charges pushed forth by Hill Jr., and just two weeks before Blue, Baron, and
Page 40 of 79

Maloufs (BAM) $50 million attorney fee claims against Appellant and Ms. Erin
Hill. were set for trial. (ROA. 18102). The indictments against Ms. Erin Hill were
dismissed by the Dallas DAs office, and the indictments against Appellant were
dismissed by the district court due to prosecutorial misconduct. (ROA. 35191).
Terri Moore is a material witness in the case before this Court because she was
deeply involved in the process of obtaining these bogus indictments against
Appellant and Ms. Erin Hill. (ROA. 18102). Moore instructed the prosecutor who
was primarily handling the investigation, Assistant District Attorney Stephanie
Martin, to continue the investigation even though the purported victim (lender)
indicated it was not interested in pursuing charges, and Martin had expressed
doubts about whether indictments could be obtained. (ROA. 25166-25182). Moore
and Lisa Blue were in close and frequent telephone contact from spring through
summer of 2010 (with two calls between Moore and Blue on April 16, 2011, the eve
of the attorneys fees trial), during which time the Dallas District Attorneys Office
was investigating Hill Jr.s allegations against Appellant and Ms. Erin Hill. (ROA.
18102). After Moore left the District Attorneys Office, Craig Watkins retained
Moore, Blue, and Malouf to jointly represent Dallas County on a contingent fee
basis in a multi-million dollar lawsuit (MERSCORP). (ROA. 18103).
Page 41 of 79

On August 23, 2012, Judge Toliver recused herself in the MERSCORP case
because an attorney of record for the plaintiffs is a close friend. (ROA. 18113).
Judge Toliver claimed that she was recusing herself to avoid the appearance of
impropriety. (ROA. 18113). Although the recusal notice does not identify which
of the several attorneys representing Dallas County the Court has a close
relationship with, Appellant asserted that: (1) Judge Toliver and Moore previously
worked closely together; (2) Moore was Judge Tolivers supervisor for several
years in the Tarrant County District Attorneys Office; (3) Moore previously
handled the prosecution of a defendant who was found guilty of murdering the
Judge Tolivers uncle, Otis Flake; and (4) Moore recently lobbied for Judge Toliver
to be appointed as an Article III federal district court judge. (ROA. 18105-18106).
8. The district court denies the Toliver Recusal Motion.
In denying the Toliver Recusal Motion, the district court found that
Appellant failed to establish that Judge Toliver abused her discretion or that her
determination regarding recusal was clearly erroneous or contrary to law. (ROA.
18766). The district court further found that [E]ven assuming the facts alleged by
(Appellant) are true, the court finds as a matter of law that the friendship alleged to
exist between..Toliver and...Moore is not enough to establish a basis for recusal
under 28 U.S.C. 455. (ROA. 18766). The district court further found that
Page 42 of 79

(Appellant) failed to show that this is a situation in which (Tolivers) impartiality
might reasonably be questioned, as friendship alone is not sufficient to disqualify
under 28 U.S.C. 455(a), and (Appellant) did not allege facts to suggest that
(Toliver) is disqualified under the enumerated circumstances set forth under 28
U.S.C. 455(b). (ROA. 18766).
The district court further rejected Appellants argument that the
appearance of impropriety that requires recusal due to Tolivers voluntary
recusal in the MERSCORP case because [F]rom what the court can
ascertain...Toliver was not required by law to recuse herself in the MERSCORP
litigation, as no showing has been made by (Appellant) that a reasonable person
cognizant of all relevant circumstances would hold a legitimate doubt as to
Tolivers impartiality. That Toliver recused herself, apparently in an abundance of
caution, in another case involving Moore is of no moment to the courts
determination of whether she is required to do so in this matter. (ROA. 18766-
18768). To support its findings and order, the district court cited Parrish v. Bd. of
Commrs of Ala. State Bar, 524 F.2d 98, 104 (5th Cir. 1975) (Judges friendship
with defendants, witnesses, or defense counsel, standing alone, does not require
recusal) and Henderson v. Dept of Pub. Safety, 901 F.2d 1288, 1296 (5th Cir.
Page 43 of 79

1990) (Friendship between a judge and a lawyer appearing before that judge does
not compel recusal).

Page 44 of 79

VIII. Summary of the Arguments
The following is the summary of the arguments [See Fed. Rule App. Proc.
28(a)(10) (2014)]: First, Appellant will argue that the district court abused its
discretion when it denied Appellants Camuel 60(b) Motion because the testimony
of Camuel is new evidence that establishes that there may be concealed irrevocable
disclaimers and fraud regarding the Hassie estate. At a minimum, Appellant is
entitled to discovery on this issue, and the district court abused its discretion by
denying Appellants request for discovery.
Second, Appellant will argue that the district court abused its discretion
when it denied Appellants OConnor 60(b) Motion because: (1) the motion is not
foreclosed by the mandate rule, and (2) without the opportunity to conduct at least
some limited discovery as to why OConnor recused himself without explanation
after refusing to do so when Appellant requested, it is impossible to provide
additional evidence to establish that OConnor violated 28 U.S.C. 455 by failing
to recuse himself earlier.
Finally, Appellant asks if a federal judges close relationship with a person,
who is a lawyer on Case A, causes the judge to determine under 28 U.S.C. 455
that recusal is required in Case A due to the appearance of impropriety, would
recusal of the federal judge also be required in Case B where the same person is a
Page 45 of 79

material witness? Appellant will argue that the judge is estopped from denying the
existence of the appearance of impropriety in Case B (Appellants case).

Page 46 of 79

IX. Issues with Argument and Authorities
1. Issue One: The district court abused its discretion when it denied
Appellants Camuel 60(b) Motion because the testimony of Camuel
is new evidence that establishes that there may be concealed
irrevocable disclaimers and fraud regarding the Hassie estate. At
minimum, Appellant is entitled to discovery on this issue, and the
district court abused its discretion by denying Appellants request
for discovery.
A. Standard of review
The decision to grant or deny relief under Rule 60(b) lies within the sound
discretion of the district court and will be reversed only for abuse of that
discretion. Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en
banc); Alvestad v. Monsanto Co., 671 F.2d 908, 912 (5th Cir. 1982). A district
court abuses its discretion if it bases its decision on an erroneous view of the law or
on a clearly erroneous assessment of the evidence. Kennedy v. Texas Utils., 179
F.3d 258, 265 (5th Cir. 1999).
B. Rule 60(b)
Appellant brought the Camuel 60(b) Motion under Federal Rule of Civil
Procedure 60(b)(2), (3), and (6). Rule 60(b)(2) provides that a district court may
grant a party relief from final judgment based on newly discovered evidence
which by due diligence could not have been discovered in time to move for a new
trial under Rule 59(b). Fed. Rule Civ. Proc. 60(b)(2) (2014).
Page 47 of 79

Under Rule 60(b)(2), to succeed on a motion for relief from judgment based on
newly discovered evidence, our law provides that a movant must demonstrate: (1)
that it exercised due diligence in obtaining the information; and (2) that the
evidence is material and controlling and clearly would have produced a different
result if present before the original judgment. Goldstein v. MCI Worldcom, 340
F.3d 238, 257 (5th Cir. 2003). A judgment will not be reopened if the evidence is
merely cumulative or impeaching and would not have changed the result. Trans
Mississippi Corp. v. United States, 494 F.2d 770, 773 (5th Cir. 1974). A motion
brought under Rule 60(b)(2) may be granted only if the evidence is such that a
new trial would probably produce a new result. Ag Pro, Inc. v. Sakraida, 512 F.2d
141, 143 (5th Cir. 1975), reversed on other grounds, 425 U.S. 273 (1976); Ledet v.
United States, 297 F.2d 737, 739 (5th Cir. 1962).
Rule 60(b)(3) provides for relief based on fraud...misrepresentation, or
other misconduct of an adverse party. Fed. Rule Civ. Proc. 60(b)(3) (2014). A
party moving for relief from judgment on the ground of fraud must establish (1)
that the adverse party engaged in fraud or other misconduct, and (2) that this
misconduct prevented the moving party from fully and fairly presenting his case.
United States v. City of New Orleans, 731 F.3d 434, 442 (5th Cir. 2013); Gov. Fin.
Servs. One Ltd. Partnership v. Peyton Place, 62 F.3d 767, 772 (5th Cir. 1995). This
Page 48 of 79

rule does not require that the information withheld be such that it can alter the
outcome of the case; the rule is aimed at judgments which were unfairly obtained,
not at those which are factually incorrect. City of New Orleans, 731 F.3d at 442.
The moving party has the burden of proving the misconduct by clear and
convincing evidence. Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.
1978). Rule 60(b)(3) is aimed at judgments which were unfairly obtained, not at
those which are factually incorrect. Id. The rule is remedial and should be
liberally construed. Id. at 1346
Rule 60(b)(6) provides for relief based on any other reason justifying relief
from the operation of the judgment. Fed. Rule Civ. Proc. 60(b)(6) (2014). The
purpose of Rule 60(b) is to balance the principle of finality of a judgment with the
interest of the court in seeing that justice is done in light of all the facts. Seven
Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir. 1981); Harrell v. DCS Equip.
Leasing Corp., 951 F.2d 1453, 1458 (5th Cir. 1992) (Rule 60(b)(6) is a grand
reservoir of equitable power to do justice in a particular case when relief is not
warranted by the preceding clauses.).
While finality of judgments is an important consideration, the goal of finality
must yield, in appropriate circumstances, to the equities of the particular case in
order that the judgment might reflect the true merits of the cause. Seven Elves,
Page 49 of 79

635 F.2d at 401. In this light, it is often stated that the rule should be liberally
construed in order to do substantial justice. Id. This Court has prescribed eight
factors for consideration in a Rule 60(b) motion: (1) That final judgments should
not lightly be disturbed; (2) that the Rule 60(b) motion is not to be used as a
substitute for appeal; (3) that the rule should be liberally construed in order to
achieve substantial justice; (4) whether the motion was made within a reasonable
time; (5) [relevant only to default judgments]; (6) whether -- if the judgment was
rendered after a trial on the merits -- the movant had a fair opportunity to present
his claim or defense; (7) whether there are intervening equities that would make it
inequitable to grant relief; and (8) any other factors relevant to the justice of the
judgment under attack. Seven Elves, Id. at 402; Federal Deposit Ins. Corp. v.
Castle, 781 F.2d 1101, 1104 (5th Cir. 1986).
C. Appellant exercised due diligence in attempting to uncover the
fraud but due diligence could not have discovered the existence of
a disclaimer by Hill Jr. on Hassies estate.
A movant who makes a claim under any subsection of Rule 60 must show
that prior to entry of the final judgment that the movant complains of, the movant
exercised due diligence during the discovery period. See Fed. Rule Civ. Proc.
60(b)(2) & (6); Inter Financing Exchange v. Bartlett & Co., 659 F.2d 1320, 1321
(5th Cir. 1981); United States v. 329.73 Acres of Land, 695 F.2d 922, 926 (5th Cir.
Page 50 of 79

1983). Diligence is defined as [A] continual effort to accomplish something, or
care; caution; the attention and care required from a person in a given situation.
Vehicle Removal Corp. v. Lopez (In re Lopez), 269 B.R. 607, 613 (N.D. Tex.
2001). Diligence is also defined as persistent activity, resolution, effort,
perseverance, tenacity, determination, doggedness, zeal, and vigor, prudence,
carefulness, and vigilance Wests Legal Thesaurus / Dictionary, 235 (West
1986). The antonyms of diligence are laziness or negligence. Id.
Due diligence is defined as the diligence reasonably expected from, and
ordinarily exercised by a person who seeks to satisfy a legal requirement or to
discharge an obligation. Id. See Blacks Law Dictionary, 468-469 (7th ed. 1999).
Or, the prudence and effort that is ordinarily used by a reasonable person under
the circumstances. Wests Legal Thesaurus / Dictionary, 261 (West 1986).
Reasonable means action that is suitable under the circumstances. Wests Legal
Thesaurus / Dictionary, 632 (West 1986). The opposite of reasonable is
unreasonable, which logically means action that is not suitable under the
circumstances. Id.
Appellant exercised due diligence in attempting to uncover the fraud, but
due diligence could not have discovered the existence of a disclaimer by Hill Jr. on
Hassies estate when some of the opposing parties did not disclose the existence of
Page 51 of 79

the disclaimer to both Appellant and the district court. Appellant did everything
possible to discover the existence of the disclaimer on the trust, but he and the
courts were repeatedly told that no such disclaimer exists. This qualifies as fraud
under Federal Rule of Civil Procedure 60(b)(3) (see above).
Before the entry of the final judgment on November 8, 2010 (ROA. 18125,
28757-28887), Appellant raised the issue of disclaimers on the Hassie trust many
times. In a Motion for In Camera Review of Materials Allegedly Protected by the
Attorney Client Privilege filed on March 24, 2010, Appellant asserted that there
may have been other disclaimers executed (and destroyed) related not only to the
MHTE, but also to the Hassie Trust. (ROA. 25581-25585). Appellant noted that
his sister, Heather Washburne, stated in her deposition that disclaimers were
referenced in her prenuptial agreement and that Hill Jr. has stridently opposed
(Appellants) effort to obtain Al Jr.s allegedly sealed divorce file that contains
financial information. (ROA. 25581-25582).
In response to Appellants discovery requests to defendant Wikert for any
documents, notes, or drafts pertaining to disclaimer to the Hassie trust, Wikert
made a number of objections, represented that she would produce the documents,
but produced no documents related to a disclaimer the Hassie Trust. (ROA.
18677-18681). To the same requests for discovery made by Appellant on defendant
Page 52 of 79

Lyda Hill, she responded in the same manner as Wikert. (ROA. 18683-18689).
Finally, to the same requests for discovery made by Appellant on Hill Jr., he
responded in the same manner as Wikert and Lyda Hill. (ROA. 18691-18696).
In an October 13, 2009, deposition, when asked whether in 2005 she saw
even a draft of disclaimers on the Hassie Trust, defendant Wikert replied that she
had not, and that she had no information regarding whether any person was
preparing draft disclaimers. (ROA. 18700-18702).
In a December 17, 2009, deposition, when asked about the subject of
disclaimers, defendant Lyda Hill testified that Ive never signed a disclaimer and
that she had tore up a draft disclaimer because she had no intention of paying
any taxes resulting from a disclaimer. (ROA. 18733).
Based upon these false representations, Appellant entered into an agreement
acknowledging that Hill Jr. never disclaimed his interest in the Hassie Trust. In the
Final Judgment, the district court found, declared that there is no disclaimer by
Al Jr. as to any interest in the HHTE. (ROA. 28792). As a result, Appellant
exercised due diligence in order to uncover evidence of a disclaimer relating to the
Hassie Trust. Due solely to the actions of these opposing parties, Appellant was
unable to discover and present this evidence prior to the entry of the final judgment
on November 8, 2010.
Page 53 of 79

D. The testimony of Camuel that trust attorneys Mureiko and Parker
told Camuel of the existence of a disclaimer on the Hassie Estate
is new evidence, is not hearsay, and establishes that fraud was
committed against Appellant and upon the district court.
As Appellant explained in his Camuel 60(b) Motion, Hill Jr. had financial
motive to truthfully represent to the IRS that he had disclaimed all or a portion of
his interest in the Hassie Trust. (ROA. 18288). Although the few named
defendants asserted to Appellant, the district court, and state courts that Hill Jr.
received his portion of the Hassie Trust, which would cause an enormous tax
liability, by informing the IRS that he disclaimed his interest in the Hassie Trust,
the IRS would be forced to look to other trust assets to recover the taxes that were
owed. (ROA. 18288). Hill Jr. also had motive to falsely represent to Appellant that
he had not executed that disclaimer, as Hill Jr. was able to keep the $100+ million
that rightfully belonged to Appellant and his family. Id.
Appellant reminded the district court that Judge OConnor sanctioned Hill
Jr. for submitting summary judgment materials in bad faith and with the intent of
committing fraud on the Court, and for intentionally [lying] under oath. (ROA.
10745-10784, 11392-11398). Thus, Hill Jr. is a documented and confirmed liar.
Appellant then discovered through Camuels deposition testimony that Hill Jr.
disclaimed his interest in the Hassie Trust, which would have made Appellant and
his sisters current beneficiaries of the trust. The fact that Hill Jr. disclaimed his
Page 54 of 79

interest in the Hassie Trust came not from a newspaper article, as the district
court erroneously concluded, but in 2008 by attorneys William Mureiko and Emily
Parker of the law firm Thompson & Knight, who at the time represented Tom
Hunt, the executor of Hassies estate, which included the HHTE. (ROA. 18560,
18561). When Camuel was provided this information in 2008, Tom Hunt was a
defendant in the district court case in his capacities as both the executor of Hassies
estate and the Trustee of the HHTE. (ROA. 18326-18327).
Until Camuels deposition was taken in February, 2014, and due to the
continued misrepresentations by Hill Jr. and a few of the other defendants to
Appellant and the courts, that Appellant had no interest in the Hassie Trust,
Appellant had no way of knowing that Hill Jr. had perpetrated yet another fraud
upon Appellant and the district court. But for this fraud, Appellant would not have
given up his and his childrens current interest in estate assets.
Hill Jr., Lyda Hill, and Alinda Wikert: (1) made material, false
misrepresentations as to the existence of a disclaimer on the Hassie Trust, (2) knew
the misrepresentations were false when they made them, (3) made these
misrepresentations with the intention that Appellant would act upon them, and
Appellant acted in reliance upon them by entering into the GSA, which resulted in
the entry of the Final Judgment, and (4) Appellant suffered substantial injury in the
Page 55 of 79

amount of at least $100 million. See Trenholm v. Ratcliff, 646 S.W.2d 927, 930
(Tex. 1983) (quoting Wilson v. Jones, 45 S.W.2d 572, 574 (Tex. Comm. App.
1932); see also Ernst & Young, L.L.P. v. Pacific Mutual Life Ins. Co., 51 S.W.3d
573, 578 (Tex. 2001) [quoting Restatement (Second) of Torts 531(1977)]. As the
Texas Supreme Court stated,
[t]he maker of the misrepresentation must have information that
would lead a reasonable man to conclude that there is an especial
likelihood that it will reach those persons and will influence their
conduct. There must be something in the situation known to the
maker that would lead a reasonable man to govern his conduct on the
assumption that this will occur. If he has the information, the maker is
subject to liability under the rule stated here.

Id. at 581. Hill Jr., Lyda Hill, and Alinda Wikert had knowledge of the disclaimer
on the Hassie Trust, information they concealed that clearly would lead a
reasonable person to conclude that it would influence Appellant and cause
Appellant to agree to the GSA.
To obtain relief under Rule 60(b)(3), the movant must: (1) have a
meritorious defense, (2) that he was prevented from fully presenting before
judgment, (3) because of the adverse partys fraud, misrepresentation, or
misconduct. Square Construction Co. v. Washington Metropolitan Area Transit
Auth., 657 F.2d 68, 71 (4th Cir. 1981). In considering these requirements, the
court must balance the competing policies favoring the finality of judgments and
Page 56 of 79

justice being done in view of all the facts. Id. If evidence exposing misconduct by
adverse party was newly discovered after judgment despite due diligence, which
would constitute separate reason for relief from judgment under Rule 60(b)(2), this
obviously should have significant impact on the courts evaluation of whether relief
from judgment under Rule 60(b)(3) is warranted. Green v Foley, 856 F.2d 660, 665
(4th Cir. 1988), cert. denied, 490 U.S. 1031 (1989).
[A] party engages in Rule 60(b)(3) misconduct if he fails to disclose
evidence he knows about and the production of such evidence was clearly called
for. Montgomery v. Hall, 592 F.2d 278, 279 (5th Cir. 1979). A party making
a Rule 60(b)(3) motion must establish by clear and convincing evidence: (1) that
the adverse party engaged in fraud or other misconduct and (2) that this
misconduct prevented the moving party from fully and fairly presenting his
case. Gov. Fin. Servs. One Ltd. Partnership v. Peyton Place, Inc., 62 F.3d 767,
772 (5th Cir. 1995); Washington v. Patlis, 916 F.2d 1036, 1039 (5th Cir. 1990);
Montgomery v. Hall, 592 F.2d 278, 278-279 (5th Cir. 1979). The purpose of Rule
60(b)(3) is to afford parties relief from judgments which are unfairly obtained, not
those which may be factually incorrect. Id.; See Diaz v. Methodist Hosp., 46 F.3d
492, 496 (5th Cir. 1995). Appellant has presented clear and convincing evidence
of the adverse partys fraud, misrepresentation, or other misconduct. See Hesling
Page 57 of 79

v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir. 2005). Appellant has presented
evidence regarding the fraud committed by several named defendants, and does not
make merely conclusory allegations that the GSA was based on fraud and
misrepresentation by the named defendants.
And not only did the named defendants engage in fraud against Appellant,
they committed fraud upon the court. Hill Jr. was found to have committed perjury
and fraud when he presented his bogus evidence regarding his purported mental
state in 2005, so it should not have been a reach for the district court to conclude
that he disclaimed his interest in the Hassie Trust and then misrepresented this
fact to Appellant and the district court. Fraud on the court... is fraud which is
directed to the judicial machinery itself and is not fraud between the parties or
fraudulent documents, false statements or perjury. Bulloch v. United States, 721
F.2d 713, 718 (10th Cir. 1983); Apotex Corp. v. Merck & Co., Inc., 507 F.3d 1357,
1361 (Fed. Cir. 2007) (Fraud upon the court involves serious misconduct which
does or attempts to subvert the integrity of the court itself, or is a fraud perpetuated
by officers of the court so that the judicial machinery cannot perform in the usual
manner its impartial task of adjudging cases.). [I]n order to set aside a judgment
or order because of fraud upon the court under Rule 60(b), it is necessary to show
Page 58 of 79

an unconscionable plan or scheme which is designed to improperly influence the
court in its decision. Rozier, 573 F.2d at 1338.
The first test for fraud upon the court under Federal Rule of Civil Procedure
60 is whether the action in question prevented a party from fully and fairly litigating
its case. First Nat. Bank v. Lustig, 96 F.3d 1554, 1572 (5th Cir. 1996); Rozier, 573
F.2d at 1338. If the first test is met, to establish fraud on the court, it is necessary
to show an unconscionable plan or scheme designed to influence
the court improperly in its discretion. All Freight Sys. v. James, 115 F. Appx. 182,
187 (5th Cir. 2004). Egregious conduct such as the fabrication of evidence by a
party in which an attorney is implicated...constitutes fraud on the court. Jackson
v. Thaler, 348 F. Appx. 29, 34 (5th Cir. 2009). Fraud upon the court requires that
there was a material subversion of the legal process such as could not have been
exposed within the one-year window[.] Id. at 35. Appellant showed that the
named opposing parties committed fraud upon the district court, subverting the
integrity of the court, and the fraud could not have been discovered within the one-
year time period under Federal Rule of Civil Procedure 60(b). If the fraud could
not have been discovered within the one-year period, the issue must be raised
within a reasonable time of discovery of the fraud. Apotex Corp., 507 F.3d at 1361.
Here, the fraud was discovered on February 27, 2014, during the deposition of
Page 59 of 79

Camuel, and Appellant filed the underlying motion within one month of the
discovery.
Next, the testimony of a former government attorney who has no interest in
this case and who has no motive to assist Appellant or his opponents is inherently
credible, and is entitled to substantial deference because Camuel is a
disinterested person. Disinterested is defined as [f]ree from bias, prejudice,
or partiality; not having a pecuniary interest. Blacks Law Dictionary 481 (7th ed.
1999). Thus, disinterested describes Camuel. And the concept of giving more
deference to a disinterested persons testimony is not a new concept to this Court,
and so it should not have been a new concept to the district court. As far back as
1905, this court differentiated disinterested witnesses from those who have a stake
in the outcome. In Quinette v. Bisso, 136 F. 825, 830 (5th Cir. 1905), this Court
considered witnesses who are equally disinterested, having equal opportunity and
sense of hearing, and equally attentive, from interested witnesses, whose
testimony this Court found must be taken with much allowance. And in Laxton
v. Gap Inc., 333 F.3d 572, 577 (5th Cir. 2003), this Court wrote that it ...gives
credence to evidence supporting the moving party that is uncontradicted and
unimpeached if that evidence comes from disinterested witnesses. Finally, this
issue is not lost on district courts, as for example in Lopez v. Cronk, No. 03-1860,
Page 60 of 79

2004 U.S. Dist. LEXIS 10936, 2004 WL 1336421 (E.D. La. 2004), the district court
found a disinterested witnesss testimony more credible than that of a police
officer.
Further, the district court completely ignored the strength of the admissions
made by the trust attorneys. Appellant was not concerned about some newspaper
article that Camuel may have read, but instead focused upon the party admissions
made by attorneys Mureiko and Parker of Thompson & Knight to Camuel. The
district courts characterization of Camuels testimony as: (1) being a fuzzy
recollection of information that she read in the newspaper, which shows her
confusion about the background of the disclaimer dispute (ROA. 18784), and (2)
hearsay testimony upon which (Appellant) relies establishes, at most, that
Camuel believed that she read a newspaper article about, and discussed, litigation
regarding a disclaimer by Al Jr., but that she had never seen such a disclaimer and
had no independent knowledge of its existence (ROA. 18784) is a clearly
erroneous reading of the evidence. At the time that the trust attorneys told Camuel
that a disclaimer had been executed as to the Hassie Trust, Tom Hunt was a party
to this action. Camuel testified that this information was provided to her in 2008
by attorneys Mureiko and Parker of Thompson & Knight, who at the time
represented Tom Hunt, the executor and trustee of the HHTE. (ROA. 18560,
Page 61 of 79

18561). Tom Hunt was a defendant in the district court case in his capacities as
both the executor of Hassies estate and the trustee of the HHTE. (ROA. 18326-
18327).
As a result, the statements to Camuel by Mureiko and Parker constitute
party admissions. See Fed. Rule Evid. 801(d)(2)(D) (2014). The title of Rule
801(d) is Statements That Are Not Hearsay. Id. Thus, the statements were
not hearsay as the district court erroneously found, but were party admissions
(...was made by the partys agent or employee on a matter within the scope of that
relationship and while it existed.). Id.; See Nekolny v Painter, 653 F.2d 1164, 1172
(7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982) (Federal Rule of Evidence
801(d)(2)(D) takes the view that an agent who speaks on any matter within scope of
his agency or employment during existence of that relationship is unlikely to make
statements damaging to his principal or employer unless those statements are true);
United States v. Richards, 204 F.3d 177, 202 (5th Cir. 2000), cert. denied sub
nom, 531 U.S. 826 (2000), overruled on other grounds, United States v. Cotton,
535 U.S. 625, 629 (2002); Davis v. Mobil Oil Exploration & Producing Southeast,
Inc., 864 F.2d 1171, 1174 (5th Cir. 1989); Harrison v. Formosa Plastics Corp. Tex.,
776 F.Supp.2d 433, 440 (S.D. Tex. 2011); Ciacciarella v Bronko, 613 F.Supp.2d
Page 62 of 79

262, 267 (D.C. Conn. 2009) (Attorneys statements were admissible because they
constituted party admissions).
E. At minimum, Appellant is entitled to discovery on this issue, and
the district court abused its discretion by denying Appellants
request for discovery.
The district court abused its discretion when it denied Appellants request
for additional discovery into this issue because (Appellant) has already had
extensive opportunity to conduct discovery into the existence of any disclaimer
regarding the Hassie estate. No further discovery is warranted and none will be
allowed. (ROA. 18785). Assuming that this Court considers this part of the
district courts ruling as an evidentiary ruling, the standard of review is abuse of
discretion, and this Court reverses a district courts decision based on an
evidentiary ruling only if the ruling affects a substantial right of a party. Marcel v.
Placid Oil Co., 11 F.3d 563, 566 (5th Cir. 1994).
Camuels testimony is sufficient to entitle Appellant to take postjudgment
discovery from Defendants and their agents concerning the issue of whether any of
Defendants signed a disclaimer relating to the Hassie Trust. Although Rule
60(b)(3) applies to misconduct in withholding information called for by discovery,
it does not require that the information withheld be of such nature as to alter the
result in the case. Rozier, 573 F.2d at 1339. Thus, Appellant need not establish
Page 63 of 79

that the outcome of the trial would have been different absent the misconduct of
the defendants, but Appellant must show by clear and convincing evidence that the
misconduct prevented him from fully and fairly presenting his case. Id. Appellant
has done so here. See, e.g., In re M/V Peacock, 809 F.2d 1403, 1404-1405 (9th Cir.
1987); Harre v. A.H. Robins Co., 750 F.2d 1501, 1503 (11th Cir. 1985); Stridiron v.
Stridiron, 698 F.2d 204, 207 (3d Cir. 1983); Square Construction Co. v.
Washington Metropolitan Area Transit Authority, 657 F.2d 68, 71 (4th Cir.
1981); Wilson v. Thompson, 638 F.2d 801, 804 (5th Cir. 1981) (Misconduct need
not be result-altering in order to merit Rule 60(b)(3) redress); Seaboldt v.
Pennsylvania Railroad Company, 290 F.2d 296, 299 (3d Cir. 1961), see also MMAR
Group, Inc. v. Dow Jones & Co., 187 F.R.D. 282, 284 (S.D. Tex. 1999) (discovery
after filing of a Rule 60(b) motion); Minneapolis, St. Paul, & Sault Ste. Marie Ry.
Co. v. Moquin, 283 U.S. 520, 521-522 (1931) (A litigant who engages in misconduct
will not be permitted the benefit of calculation, which can be little better than
speculation, as to the extent of the wrong inflicted upon his opponent).
Appellant sought the depositions of: (1) Mureiko and Parker, the trust
attorneys who told Camuel about Hill Jr.s disclaimer on the Hassie Trust, (2) Hill
Jr., (3) Lyda Hill, (4) Alinda Wikert, (5) Ivan Irwin, Jr., Hill Jr.s confidante, (6)
Heather Washburne and Elisa Summers, Appellants sisters, who would benefit
Page 64 of 79

from a Hassie Trust disclaimer, (7) John W. Creecy, a Hassie Trust trustee, and (8)
a few other persons who were HHTE advisory board members or represented
them. These discovery requests are reasonable and pertain only to the disclaimer
on the Hassie Trust.
F. Conclusion
The district court abused its discretion when it denied Appellants Camuel
60(b) Motion because the testimony of Camuel is new evidence that establishes
that there may be concealed irrevocable disclaimers and fraud regarding the Hassie
estate. At minimum, Appellant is entitled to discovery on this issue, and the
district court abused its discretion by denying Appellants request for discovery.
Appellant: (1) established that certain defendants committed fraud against him and
upon the district court, (2) asks that Rule 60(b) be liberally construed in order to
achieve substantial justice, (3) filed the motion within one month of the discovery
of the new evidence, and (4) was prevented from fully and fairly presenting his
case. Appellant asks that this Court reverse the Camuel 60(b) Order, grant
Appellants Camuel 60(b) Motion, and remand this case back to the district court
for a new trial. In the alternative, Appellant asks that this court reverse the Camuel
60(b) Order in part and remand this case back to the district court for further
proceedings on the issue of Appellants request for additional discovery.
Page 65 of 79

2. Issue Two: The district court abused its discretion when it denied
Appellants OConnor 60(b) Motion because: (1) the motion is not
foreclosed by the mandate rule, and (2) without the opportunity to
conduct at least some limited discovery as to why OConnor recused
himself without explanation after refusing to do so when Appellant
requested, it is impossible to provide additional evidence to
establish that OConnor violated 28 U.S.C. 455 by failing to recuse
himself earlier.
A. Appellants OConnor 60(b) Motion is not foreclosed by the
mandate rule
The district court concluded that Appellants Rule 60(b) motion is an
attempt to violate the mandate rule and obtain a ruling contrary to the final
determination of the Fifth Circuit on this issue. (ROA. 18775). However,
Appellant sought to overturn a final judgment that was obtained by some of the
defendants through fraud, and the district courts conclusion that Appellant
attempted to violate the mandate rule is clearly erroneous.
The mandate rule is but a specific application of the general doctrine of law
of the case. United States v. Pineiro, 470 F.3d 200, 205 (5th Cir. 2006); General
Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007); United States
v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002). The law of the case doctrine
serves the practical goals of encouraging finality of litigation and discouraging
panel shopping. Illinois Cent. Gulf R.R. v International Paper Co., 889 F.2d
536, 539 (5th Cir. 1989). The doctrine is predicated on the premise that there
would be no end to a suit if every obstinate litigant could, by repeated appeals,
Page 66 of 79

compel a court to listen to criticisms on their opinions or speculate of chances from
changes in its members. United States v. Becerra, 155 F.3d 740, 752 (5th Cir.
1998); White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967). Absent exceptional
circumstances, the mandate rule compels compliance on remand with the dictates
of a superior court and forecloses relitigation of issues expressly or impliedly
decided by the appellate court. United States v. Lee, 358 F.3d 315, 321 (5th Cir.
2004). The mandate rule also bars litigation of issues decided by the district court
but foregone on appeal or otherwise waived, for example because they were not
raised in the district court. Id.
The mandate rule applies unless: (1) the evidence at a subsequent trial is
substantially different; (2) there has been an intervening change of law by a
controlling authority; or (3) the earlier decision is clearly erroneous and would
work a manifest injustice. Matthews, 312 F.3d at 657; United States v.
Archundia, 242 Fed. Appx. 278, 279 (5th Cir. 2007); Becerra, 155 F.3d at 752. An
issue is actually decided if the court explicitly decided it or necessarily decided it
by implication. Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417, 425 (5th Cir.
2006).
Appellant asserted that the issue of the circumstances surrounding
OConnors recusal after years of refusing to recuse himself despite the obvious
Page 67 of 79

conflict caused a change in circumstances. This appears to be allowed by Arizona
v. California, 460 U.S. 605, 618-619 (1983) (Under law-of-case doctrine, when
court decides rule of law, that decision continues to govern same issue, but
jurisdiction retained to accommodate changed circumstances.). The district
court cannot disturb the mandate, which relates to... issues then before the
[appellate] court, but the district court may deal with... later events. See
Terrell v. Household Goods Carriers Bureau, 494 F.2d 16, 19 (5th Cir. 1974), cert.
denied, 419 U.S. 987 (1974).
B. Without the opportunity to conduct at least some limited
discovery as to why OConnor recused himself without
explanation after refusing to do so when Appellant requested, it is
impossible to provide additional evidence to establish that
OConnor violated 28 U.S.C. 455 by failing to recuse himself
earlier.
Appellant brought the OConnor 60(b) Motion largely under Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847 (1988), where the Supreme Court
held that when a court fails to timely recuse itself, rulings entered after the point at
which the court should have recused itself may be subject to vacatur. See also Rep.
of Panama v. Am. Tobacco Co. 217 F.3d 343, 347 (5th Cir. 2000); United States v.
Jordan, 49 F.3d 152, 160 (5th Cir. 1995) (vacating sentence); Shell Oil Co. v. U.S.,
672 F.3d 1283, 1293-1294 (Fed. Cir. 2012) (vacating judgment and summary
judgment orders); United States v. Microsoft Corp., 253 F.3d 34, 116 (D.C. Cir.
Page 68 of 79

2001). And although this Court held that Appellants original recusal motion based
upon ownership of Exxon stock was untimely, Appellant has no mechanism outside
of a limited discovery process to submit evidence supporting the change in
circumstances.
Further, a trial judge has a duty to not recuse himself if the trial judge has a
duty not to recuse himself or herself if there is no objective basis for recusal. In re
United States, 441 F.3d 44, 67 (1st Cir. 2006). And recusal must have a factual
foundation, and it may take some time to build the foundation. Id. at 65. And
there is as much obligation for a judge not to recuse when there is no occasion for
him to do so as there is for him to do so when there is. United States v. Cooley, 1
F.3d 985, 994 (10th Cir. 1993), quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th
Cir. 1987) and United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976). Thus, if
Judge OConnor believed that he had no duty to recuse himself despite the conflict
regarding the Exxon securities, but then after several years believed that he had a
duty to recuse himself despite the complete absence of any intervening event such
as a new party or other issue, Appellant believes that he has the right to a limited
inquiry as to why Judge OConnor recused himself after the mandate issued in this
case.
Page 69 of 79

Appellant does not attempt or intend to violate the mandate rule, and he
closes this issue as follows: 28 U.S.C. 455 (2014) imposes an obligation on the
federal judge to sua sponte to recuse himself, or at least make necessary disclosures
in timely fashion. See., Liljeberg, 486 U.S. at 866-869 (finding it remarkable-and
quite inexcusable that a district judge failed to recuse himself as soon as the
potential conflict came to his attention and explaining that by his silence, Judge
Collins deprived respondent of a basis for making a timely motion for a new trial
and also deprived it of an issue on direct appeal). Thus, it was Judge OConnors
responsibility and not Appellants to disclose the conflict or potential conflict. But
although in theory 28 U.S.C. 455 is self-enforcing, when a judge fails or is
perceived to have failed to properly enforce 455 sua sponte, a litigant must seek
enforcement by a motion to recuse. Now after several years of refusing to recuse
himself and entering numerous orders in the case, Judge OConnor suddenly
recuses himself without any explanation. Without the opportunity to conduct at
least some limited discovery as to why Judge OConnor recused himself without
explanation after refusing to do so when Appellant requested, it is impossible to
provide additional evidence to establish that Judge OConnor violated 28
U.S.C. 455 by failing to recuse himself earlier.
Page 70 of 79

C. Conclusion
The district court abused its discretion when it denied Appellants
OConnor 60(b) Motion because: (1) the motion is not foreclosed by the mandate
rule, and (2) without the opportunity to conduct at least some limited discovery as
to why OConnor recused himself without explanation after refusing to do so when
Appellant requested, it is impossible to provide additional evidence to establish
that OConnor violated 28 U.S.C. 455 by failing to recuse himself earlier.
Appellant thus asks that this Court reverse the OConnor 60(b) Order, grant
Appellants OConnor 60(b) Motion, and remand this case back to the district
court for limited discovery on the issue of why OConnor recused himself long
after he ruled that he was not subject to recusal.

Page 71 of 79

3. Issue Three: If a federal judges close relationship with a person,
who is a lawyer on Case A, causes the judge to determine under 28
U.S.C. 455 that recusal is required in Case A due to the appearance
of impropriety, would recusal of the federal judge also be required in
Case B where the same person is a material witness?
A. Introduction
On August 23, 2012, when Judge Toliver recused herself in cause number
3:11-CV-2733-O; Dallas County, TX, et al v. Merscorp, Inc., et al, she wrote It
has come to my attention that an attorney of record for the plaintiffs is a close
friend. Therefore, to avoid the appearance of impropriety, I hereby recuse
myself. (ROA. 18113) (emphasis added). Yet, in denying the Toliver Recusal
Motion, the district court found that [E]ven assuming the facts alleged by
(Appellant) are true, the court finds as a matter of law that the friendship alleged to
exist between..Toliver and...Moore is not enough to establish a basis for recusal
under 28 U.S.C. 455. (ROA. 18766). The district court further found that
(Appellant) failed to show that this is a situation in which (Tolivers) impartiality
might reasonably questioned, as friendship alone is not sufficient to disqualify
under 28 U.S.C. 455(a), and (Appellant) did not allege facts to suggest that
(Toliver) is disqualified under the enumerated circumstances set forth under 28
U.S.C. 455(b). (ROA. 18766). Finally, the district court found that [F]rom
what the court can ascertain...Toliver was not required by law to recuse herself in
the MERSCORP litigation, as no showing has been made by (Appellant) that a
Page 72 of 79

reasonable person cognizant of all relevant circumstances would hold a legitimate
doubt as to Tolivers impartiality. That Toliver recused herself, apparently in an
abundance of caution, in another case involving Moore is of no moment to the
courts determination of whether she is required to do so in this matter. (ROA.
18766-18768). As the following will show, the district court erred in all of its
factual findings and conclusions of law.
B. The appearance of impropriety or partiality alone requires a
district judge to recuse herself.
As the Supreme Court held in Liljeberg, 486 U.S. at 850, [A] violation of
the Judicial Code, 28 U.S.C. 455(a), is established when a reasonable person,
knowing the relevant facts, would expect that a justice, judge, or magistrate knew of
circumstances creating an appearance of partiality, notwithstanding a finding that
the judge was not actually conscious of those circumstances. (emphasis added).
28 U.S.C. 455, provides in relevant part that Any...judge or...magistrate of the
United States shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned. 28 U.S.C. 455(a) (2014). 28 U.S.C. 455 was
designed to not only avoid impropriety but to also avoid
the appearance of impropriety. Hearings on S.1064, To Broaden and Clarify the
Grounds for Judicial Disqualification, before the Subcomm. on Improvements in
Judicial Machinery of the Senate Comm. on the Judiciary, 93rd Cong., 1st Sess. 16
Page 73 of 79

(1971) (statement of Senator Bayh). Further, [J]udicial ethics reinforced by
statute exact more than virtuous behavior, they command impeccable appearance.
Purity of heart is not enough. Judges robes must be as spotless as their actual
conduct. Hall v. Small Business Admin., 695 F.2d 175, 176 (5th Cir. 1983).
Finally, 455 is self-enforcing. Christiansen v. National Savings & Trust Co., 683
F.2d 520, 524 (D.C. Cir. 1982). As the Supreme Court held in In re Murchison,
349 U.S. 133 (1955):
A fair trial in a fair tribunal is a basic requirement of due process.
Fairness of course requires an absence of actual bias in the trial of
cases. But our system of law has always endeavored to prevent even
the probability of unfairness. To this end no man can be a judge in
his own case and no man is permitted to try cases where he has an
interest in the outcome. That interest cannot be defined with
precision. Circumstances and relationships must be considered. This
Court has said, however, that every procedure which would offer a
possible temptation to the average man as a judge . . . not to hold the
balance nice, clear and true between the State and the accused, denies
the latter due process of law. Such a stringent rule may sometimes
bar trial by judges who have no actual bias and who would do their
very best to weigh the scales of justice equally between contending
parties. But to perform its high function in the best way justice must
satisfy the appearance of justice...

Id. at 136. And as Justice Kennedy stated in a concurring opinion in Liteky v.
United States, 510 U.S. 540, 565 (1994) (Kennedy, J. concurring), [I]n matters of
ethics, appearance and reality often converge as one, citing Offutt v. United
States, 348 U.S. 11, 14 (1954) (Justice must satisfy the appearance of justice) and
Page 74 of 79

Ex parte McCarthy, 1 K. B. 256, 259 (1923) (Justice should not only be done, but
should manifestly and undoubtedly be seen to be done). Justice Kennedy further
stated I do not see how the appearance of fairness and neutrality can obtain if the
bare possibility of a fair hearing is all that the law requires. See also Gay v. United
States, 411 U.S. 974, 977 (1973), where in a four-justice dissent to the Courts
denial of certiorari, Justice Douglas wrote ...any appearance of impropriety may
reflect adversely on the federal judiciary as a whole...Canon 1 of the Code of
Judicial Conduct states that [an] independent and honorable judiciary is
indispensable to justice in our society. Canon 2 provides that a judge should
conduct himself at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary, and the commentary to that Canon
states that he must avoid all impropriety and appearance of impropriety. Id.
(emphasis added).
Further, citing the first three judicial canons, Judge Carl Stewart wrote ten
years ago ...[A] judge shall avoid impropriety and the appearance of impropriety
in all of the judges activities. Stewart C., Abuse of Power and Judicial
Misconduct: A Reflection of Contemporary Ethical Issues Facing Judges, 1 U. St.
Thomas L.J. 464, 466 (2003). Judge Stewart also suggested that
the perception that surrounds each incident may negatively impact the
Page 75 of 79

effectiveness of judges...perception is itself a form of reality, and to the extent that
each of these criticisms in some way affects the publics conception of the
judiciary, and in turn the stability of our institutions, they warrant our serious
consideration. Id. at 477.
Thus, the district courts arguments to support its findings and order that
focuses on the obvious rule that a judges friendship with defendants, witnesses, or
defense counsel, standing alone, does not require recusal does not address what
occurred in this case. See Parrish, 524 F.2d at 104 and Henderson, 901 F.2d at
1296 (Friendship between a judge and a lawyer appearing before that judge does
not compel recusal). The issue here is not merely that Moore and Judge Toliver
were friends.
The issue is that, in light of that duty, if there was no objective basis for her
recusal, Judge Toliver should not claim the appearance of impropriety in a case
where Moore is a lawyer, but then claim that there is no appearance of impropriety
in a case where Moore is a material witness. The doctrine of estoppel by conduct
addresses this issue.
C. Estoppel by conduct required Toliver to recuse herself in
Appellants case.
Appellant shows above that the appearance of impropriety or partiality alone
requires a district judge to recuse herself. Again, to avoid the appearance of
Page 76 of 79

impropriety, Toliver recused herself from the MERSCORP litigation because of
her close personal relationship with Moore, an attorney for the plaintiffs in the
MERSCORP litigation. Yet although Moore is a material witness in Appellants
case, and was instrumental in obtaining the bogus indictments against Appellant
and Ms. Erin Hill., somehow the district court determined there was no
appearance of impropriety if Judge Toliver remained as magistrate judge on
Appellants case.
The doctrine of estoppel by conduct provides otherwise. In Morgan v. R.R.
Co., 96 U.S. 716, 720 (1878), the Supreme Court held that a party may not deny a
state of things which by his culpable silence or misrepresentations he had led
another to believe existed, if the latter has acted upon that belief. The doctrine
always presupposes error on one side and fault or fraud upon the other, and some
defect of which it would be inequitable for the party against whom the doctrine is
asserted to take advantage. Id. See also Leather Mfrs. Nat. Bank v. Morgan, 117
U.S. 96, 108 (1886) and Thompson v. First Nat. Bank of Toledo, Ohio, 111 U.S.
529, 540-541 (1884).
Estoppel by conduct is not an outdated doctrine. In McFarland v. Campbell,
213 F.2d 855, 858 (5th Cir. 1954), this Court described estoppel by conduct as a
doctrine which has its foundation in the necessity of compelling the
Page 77 of 79

observance of good faith. More recently estoppel by conduct has been referred to
as quasi-estoppel, which is described as an assertion that prohibits (one party)
from asserting a right, to the disadvantage of another party, that is inconsistent
with a position previously taken by the first party. See Mann v. Bank of N.Y.
Mellon, No. 4:12-CV-2618, 2013 U.S. Dist. LEXIS 131749, 2013 WL 5231482 (S.D.
Tex. 2013). As applied to Judge Toliver, if she was sufficiently concerned that her
friendship with Moore in the MERSCORP case required her to recuse herself in
order to avoid the appearance of impropriety, then Judge Toliver should be
estopped by her conduct to deny that her friendship with Moore required her to
recuse herself here.
D. Conclusion
If a federal judges close relationship with a person, who is a lawyer on Case
A, causes the judge to determine under 28 U.S.C. 455 that recusal is required in
Case A due to the appearance of impropriety, recusal of the federal judge is
required in Case B where the same person is a material witness. Judge Toliver
should be estopped from claiming that there is no appearance of impropriety in
presiding over Appellants case where Moore is a material witness, when she
recused herself due to the same appearance of impropriety in the MERSCORP
case where Moore was only an attorney for the plaintiffs. Appellant thus asks this
Page 78 of 79
Court to reverse the judgment in the Toliver Recusal Order (ROA. 18763-18770),
find that Judge Toliver should have recused herself in Appellants cases, vacate all
orders entered by Judge Toliver, and remand this case back to the district court for
further proceedings before another assigned magistrate judge or the district judge.
X. Conclusion and Prayer for Relief
For the reasons stated in this Brief, Appellant prays that this Court grant
the relief requested. Appellant prays for general relief.
Respectfully submitted,
Michael Mowla
445 E. FM 1382 #3-718
Cedar Hill, TX 75104
Phone: 972-795-2401
Fax: 972-692-6636
michael@mowlalaw.com
Lead Attorney for Appellant
Leonard Thomas (Butch) Bradt
14015 Southwest Freeway Suite 4
Sugar Land, TX 77478
Phone: 972-201-0700
Fax: 972-201-1202
ltbradt@flash.net
Attorney for Appellant
/s/ Michael Mowla
By: Michael Mowla
Page 79 of 79

XI. Certificate of Service
I certify that on July 20, 2014, a copy of this document was delivered to all
opposing counsel through the ECF Filing System.

/s/ Michael Mowla

By: Michael Mowla

XII. Certificate of Compliance with Fed. Rule App. Proc. 32(a)
I certify that this Brief complies with Federal Rule of Appellate Procedure
32(a) as follows [See Fed. Rule App. Proc. 32(a)(7) (2014) & 5th Cir. Rule 32.3
(2014)]:

1. This Brief complies with the type-volume limitation because it
contains approximately 12,512 words, which is at or under the limit of 14,000
words, excluding the following parts: cover page, certificate of interested persons,
table of contents, table of authorities, statement regarding oral argument, any
addendum containing statutes, rules or regulations, and certificates of counsel. See
Fed. Rule App. Proc. 32(a)(7)(B) (2014).

2. This Brief complies with the typeface and type-style requirements
because it has been prepared in a proportionally-spaced typeface using Microsoft
Word in 14-point font. Further, the electronic copy of this Brief is published from
Microsoft Word into Portable Document File (PDF) format. See Fed. Rule App.
Proc. 32 (a)(5) & (6) (2014) & 5th Cir. Rule 31.1 (2014).

/s/ Michael Mowla

By: Michael Mowla


Hill3 14-10505 Brief Opening 2014-07-20

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Hill3 14-10505 Brief Opening 2014-07-20

Transféré par

Droits d'auteur :

Formats disponibles

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Vous aimerez peut-être aussi