EDWIN K. HUNTER, Appellant
PRESTON MARSHALL, Appellee
Appeal from Probate Court No. 4 Harris County, Texas Trial
Court Cause No. 365, 053-401
consists of Justices Wise, Jewell and Poissant.
MARGARET "MEG" POISSANT, JUSTICE
appeal arises from the trial court's order signed
September 29, 2017, denying appellant Edwin K. Hunter's
special appearance. We affirm.
March of 2017, appellee Preston Marshall filed his fourth
amended petition against appellant and Elaine T. Marshall, as
Executor of the Estate of E. Pierce Marshall, Elaine T.
Marshall, Individually, Elaine T. Marshall as Trustee of the
EPM Marital Income Trust, Elaine T. Marshall as Trustee of
the Testamentary Lead Trust, Elaine T. Marshall as Trustee of
the Harrier Trust for the Benefit of Preston L. Marshall, and
Elaine T. Marshall, as Trustee of the Falcon Trust for the
Benefit of Preston L. Marshall (collectively "Mrs.
Marshall"). Appellee claimed Mrs. Marshall breached her
fiduciary duties to appellee. Appellee further alleged Hunter
"assisted, encouraged, and participated in Mrs.
Marshall's breaches, knowing that his actions would
facilitate or induce a breach of fiduciary duty and would be
a breach of his own duties to Plaintiff."
alleged the following grounds for the trial court to assert
jurisdiction over appellant:
28. This Court has jurisdiction over Edwin Hunter because his
misconduct occurred while he was acting as Mrs.
Marshall's agent, individually and as Trustee and
Executor. Mr. Hunter advised and informed Plaintiff twice in
writing that his mother as Executor was placing Plaintiff in
possession of the disclaimed shares. Plaintiff was never
placed in possession of the disclaimed shares and has a right
to an accounting of all Estate property, including any
property or funds purportedly removed to Wyoming, pursuant to
his status as a party to the Disclaimer and the
representations of Mr. Hunter on behalf of the Executor and
as attorney for the Executor and Plaintiff with respect to
the Disclaimer. "When a third party knowingly
participates in the breach of fiduciary duty, the third party
becomes a joint tortfeasor and is liable as such."
Kastner v. Jenkens & Gilchrist, 231 S.W.3d 571,
580 (Tex. App.-Dallas 2007, no pet.).
29. Additionally, this Court may properly exercise
jurisdiction over Edwin K. Hunter because Edwin Hunter
routinely gave Plaintiff legal, business, tax, and estate
planning advice in Texas; advises other clients in Texas; and
has committed torts to others in this State.
pleadings alleged the following facts relating to appellant:
Mrs. Marshall's Refusal To Transfer Disclaimed Trof
. . .
77. In 2014, Mrs. Marshall's lawyers represented to
Plaintiff that he would be receiving the 12, 811 disclaimed
shares of Trof. In April 2014, Mrs. Marshall's lawyers
represented to Plaintiff-as a means of convincing Plaintiff
to take a pay cut and demotion at the family's business
MarOpCo-that Mrs. Marshall "intends to distribute from
her late husband's estate 12, 811 Trof non-voting
shares" and that Plaintiff's "share of future
income on the distributed shares will eclipse his current
MarOpCo, Inc. compensation." Exhibit 37 (Trevino
letter). Similarly, in June 2014, Defendant Edwin K. Hunter,
the Marshall family's longtime lawyer and Mrs.
Marshall's consiglieri, told Plaintiff that "[w]e
are taking steps to place you and Pierce, Jr. in possession
of the [Trof] units disclaimed by your mother." Exhibit
38 (submitted in camera).
78. Despite the promise to deliver the disclaimed shares of
Trof-future income from which would "eclipse" any
prior compensation-the shares have not been distributed to
Plaintiff. In fact, Edwin K. Hunter never intended to place
Preston Marshall "in possession of" the Trof
shares. Indeed, Hunter admitted that there were no shares to
distribute. Exhibit 21 (Hunter Dep. Tr.) at 14-23. When
questioned why Mrs. Marshall's lawyers were offering
allegedly nonexistent shares to Plaintiff, Hunter flatly
testified that the representations were incorrect.
Id. at 23:11-24. Hunter stated that the
representation "certainly wasn't, in fact,
true." Id. Of course, this means that
Hunter's own statement about the disclaimed shares
"certainly wasn't, in fact, true" either.
. . .
Disparaging Remarks About Plaintiff to Charles Koch
83. On April 6, 2015, Edwin Hunter, at Mrs. Marshall's
direction, wrote a letter to Charles Koch, Chairman of Koch
Industries, Inc., providing him with "information on
recent changes in her succession plan together with the
circumstances underlying those changes." Exhibit 43
(submitted in camera). The letter is 11 pages, but
attaches over 200 pages of "exhibits," and amounts
to a screed misrepresenting Plaintiffs actions, and
attempting to portray him as a ne'er-do-well. Edwin
Hunter's letter purports to describe Plaintiffs
"emotion-driven desire to strike at his brother,"
attempted use of power not given to him, "interposing
himself into appellate tax brief preparation," hiring a
lawyer in Louisiana to harm Pierce, Jr., and "joining
with one of his attorneys to surreptitiously record a
confidential conversation." Id.
84. Edwin Hunter sent Mr. Koch a second letter on July 11,
2015. Exhibit 44 (submitted in camera). This time,
he put further spin on Plaintiffs termination from MarOpCo,
claiming for example that there was no support for his claim
that he owed fiduciary duties to Chondriosome Stiftung. This
letter included over 700 pages of "exhibits."
85. These letters serve no purpose but to disparage and
defame Plaintiff, and to further retaliate against Plaintiff
for his accounting demands, lawsuits to enforce his statutory
rights, and general denial to be Edwin Hunter's puppet.
Mrs. Marshall's Indemnification of Her Lawyers For Acts
86. In July 2014 and again in October or November 2014, Mrs.
Marshall executed an irrevocable indemnification agreement
("Indemnity Agreement") with her attorneys,
including Edwin K. Hunter, agreeing to "protect, make
whole, hold harmless, and defend" those attorneys (and
undisclosed others) for advice relating to, among other
the termination of Preston L. Marshall's employment with
MarOpCo, shutting down and/or moving the Houston based
offices of MarOpCo, and all open litigation matter to which
the Defended Parties or a Defended Party may be providing
advice to any of the Marshall Interests or their
Exhibit 45 (submitted in camera). Indeed, Edwin
Hunter and his colleagues are ostensibly indemnified
regardless of the basis of the action instituted against,
"including whether it is founded in whole or part upon,
or includes allegations of, the alleged fault, tort,
negligence, gross negligence, malpractice, breach of
fiduciary duty or duty of loyalty, or criminal conduct of a
defended party." In other words, Mrs. Marshall has
agreed to indemnify her lawyers for any misconduct- including
criminal acts-directed at Plaintiff. Moreover, the Indemnity
Agreement permits Mrs. Marshall to recover indemnity payments
from Mr. Hunter and his law firm provided that neither
Plaintiff nor his descendants benefit from the recovery.
cause of action against appellant is set forth below:
Aiding and Abetting Breach of Fiduciary Duty (Edwin
108. Defendant Edwin Hunter has aided and abetted Mrs.
Marshall's breaches of fiduciary duty. Mrs. Marshall
unquestionably owed and breached fiduciary duties to
Plaintiff. Edwin Hunter, as a lawyer admitted in Texas and
practicing trust and estate law in Texas, undoubtedly
understood and recognized that Mrs. Marshall's conduct
constituted a breach of her fiduciary duties, and knowingly
and intentionally provided substantial assistance and
encouragement in the breaches of duty. Indeed, Edwin Hunter
actively participated in Mrs. Marshall's breaches. Edwin
Hunter's intentional assistance, encouragement, and
participation was a substantial factor leading to Mrs.
109. Edwin Hunter is Mrs. Marshall's longtime counselor
and has given Mrs. Marshall and the rest of the Marshall
family legal advice for several years. He assisted in Mrs.
Marshall's secret move of the Marital Trust to Wyoming
and its merger into the Wyoming Trust. Edwin Hunter
participated in the improper appointment of five cotrustees
for the Harrier and Falcon Trusts-he or his law firm filed
the paperwork in Calcasieu Parish, Louisiana as
"conveyances." Edwin Hunter helped devise the
excessive and unfair compensation formula that the
wrongly-appointed Harrier and Falcon Co-Trustees would
receive. Edwin Hunter wrote and compiled the lengthy,
exhibit-laden letters sent to Charles Koch that disparaged
110. Furthermore, Mr. Hunter has represented Plaintiff and
has acted as Plaintiffs lawyer in the past, meaning that Mr.
Hunter's actions constitute a breach of his own fiduciary
duties to Plaintiff.
26, 2017, appellant filed a special appearance and motion to
quash service. In his motion, appellant claimed he is a
nonresident individual who does not have contacts with Texas
sufficient to establish jurisdiction. In his affidavit,
• I am not a resident of Texas. Rather, I am a resident
of Florida, although I split my time living between Florida
• I have never owned, leased, rented or controlled any
real or personal property in Texas.
• I have never maintained accounts at either savings or
loan associations or banks in Texas.
• Through my work as an attorney, I
o do not operate a law office in Texas;
o have not paid taxes to Texas;
o have never owned any real property located in Texas;
o do not have a registered agent for service of process in