# James E. Wade v. Johnny Wade, Individually Amanda Wade, Individually, and Amanda Wade, as the Independent of the Estate of Edell Wade > Texas Court of Appeals, 3rd District (Austin) · August 27, 2015 URL: https://www.frixlaw.com/law-library/cases/4072163 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** August 27, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4072163 ## Opinion text ACCEPTED 03-15-00100-CV 6678421 THIRD COURT OF APPEALS AUSTIN, TEXAS 8/27/2015 11:28:32 AM JEFFREY D. KYLE CLERK NO. 03-15-00100-CV IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS AT AUSTIN 8/27/2015 11:28:32 AM JEFFREY D. KYLE Clerk IN RE THE ESTATE OF EDELL WADE, DECEASED. JAMES E. WADE, Appellant, v. JOHNNY WADE AND AMANDA WADE, INDIVIDUALLY AND AMANDA WADE AS THE INDEPENDENT EXECUTOR OF THE ESTATE OF EDELL WADE, Appellees. Appealed from the County Court at Law of Burnet County, Texas APPELLANT’S BRIEF IN REPLY TO APPELLEES’ BRIEF RICHIE & GUERINGER, P.C. SHELDON E. RICHIE State Bar No. 16877000 EMILY J. SEIKEL State Bar No. 24072331 100 Congress Avenue, Suite 1750 Austin, Texas 78701 512-236-9220 telephone 512-236-9230 facsimile srichie@rg-austin.com Email eseikel@rg-austin.com Email ATTORNEYS FOR JAMES E. WADE ORAL ARGUMENT REQUESTED TABLE OF CONTENTS INDEX OF AUTHORITIES ...................................................................................3 REPLY TO APPELLEES’ PRELIMINARY STATEMENT .............................4 REPLY TO APPELLEES’ ARGUMENTS ON ISSUE ONE ...........................10 A. Appellees’ Response Ignored That Bud Had No Legal Duty or Standing Until 2010 ................................................................................................................ 11 B. The Discovery Rule Does Apply to Bud’s Claims .................................................. 12 C. Bud Did Not Have Notice of His Claims ................................................................. 14 D. The Trial Court’s Summary Judgment was Based on Limitations, and Limitations Alone .................................................................................................... 16 REPLY TO APPELLEES’ ARGUMENTS ON ISSUE TWO ..........................17 A. Amanda Wade Testified that She Did Not Think About Fairness or Benefit to Edell ..................................................................................................................... 18 B. The Evidence does Not Support that Edell was Represented by Counsel in Both Transactions .................................................................................................... 19 C. The Evidence does Not Support that Edell Voluntarily, and with Full Disclosure, Chose to Sell the Ranch and Chose to Reduce the Principal in Connection with the Modification ........................................................................... 21 PRAYER .................................................................................................................25 CERTIFICATE OF COMPLIANCE ..................................................................26 CERTIFICATE OF SERVICE ............................................................................27 APPENDIX .............................................................................................................28 VERIFICATION....................................................................................................31 2 INDEX OF AUTHORITIES Cases Boucher v. Willis, 236 S.W.2d 519 ..........................................................................11 Chapal v. Vela, 461 S.W.2d 466 ..............................................................................11 Cobb v. TDCJ, 965 S.W.2d 59.................................................................................10 In re Estate of Herring, 970 S.W.2d 583 .................................................................10 Jordan v. Lyles, 455 S.W.3d 785 .............................................................................24 Kansa Reinsurance Co. V. Congressional Mortgage Corp., 20 F3d 1362 .............11 Matter of Estate of Matejek, 928 S.W.2d 742 .........................................................10 Moczygemba v. Moczygemba, -- S.W.3d --, No. 04-14-00110, 2015 WL 704405 .12 Mooney v. Harlin, 622 S.W.2d 83 ...........................................................................11 Stephen County Museum, Inc. v. Swenson, 571 S.W.2d 257 ...................................18 Texas Bank and Trust Co. v. Moore, 595 S.W.2d 502 ............................................18 Vogt v. Warnock, 107 S.W.3d 778 .................................................................... 18, 23 3 REPLY TO APPELLEES’ PRELIMINARY STATEMENT 1. Appellees’ list of “Bud’s representations vs. the evidence” in their Preliminary Statement contains inaccuracies. In reply Appellant would show the following. 2. Alleged misrepresentation #1: Appellees’ evidence does not controvert Bud’s representations that “Johnny and Amanda Wade were the clients of Michael Martin,” and that “there is no evidence that [Mrs. Wade] had the benefit of independent advice.” First, it is an undeniable fact that Mr. Martin clearly and repeatedly identified Johnny and Amanda as the ‘client’ in the physical file he created at the time in 2009 and that he was paid for his work on the Modification by Amanda Wade, not Edell Wade.1 While Michael Martin did testify at the trial in 2014 that he believed that Edell Wade had been his client, he also testified that he had considered the Modification a “joint project.”2 Mr. Martin further confirmed that he could have used the unique file number that he used for previous work he had done directly for Edell, yet he chose to list Johnny and Amanda as clients with a separate file number for his work on the 1 RR: Vol. 3 of 4 at 14, 15, 19, 21 [Tab J, Martin & Millican File]; and SUPP. RR: Vol. 2 of 6 at 116:17 – 118:1 [Tab K, Martin Trial Testimony]. 2 SUPP RR: Vol. 2 of 6 at 87:21-24 [Tab K, Martin Trial Testimony]. 4 Modification. 3 He acknowledged that communications on the Modification were sent directly to Amanda and that Amanda paid for the work.4 3. Mr. Martin’s testimony that he believed he had an obligation to serve Edell’s interests does not, however, demonstrate that she had “the benefit of independent advice.” There is absolutely no evidence that Edell Wade was aware at all of the principal reduction of around $40,000.00, and the Modification document stated on its face in bold letters that its “SOLE PURPOSE” was elimination of interest. 5 Mr. Martin’s file entry on the matter stated that the note was to be modified for either an elimination of interest or reduction of the principal.6 Mr. Martin could hardly have given independent advice on something he knew nothing about, and he testified ignorance on the principal reduction. Mr. Martin testified “I may not have remembered at that time that they even talked about reducing the balance. And to this day I don’t know if or how much they reduced it” and that he thought he was reducing the interest to zero. 7 He testified that he did not scrutinize the numbers as “I really didn’t know what was going on. It changed two or three times. I really didn’t know and hoped that with the accountant they would work it out to where everybody was happy,” and “I didn’t 3 SUPP RR: Vol. 2 of 6 at 116:2-19 [Tab K, Martin Trial Testimony]. 4 SUPP RR: Vol. 2 of 6 at 116:20 – 118:1 [Tab K, Martin Trial Testimony]. 5 RR: Vol. 3 of 4 at 39-46 [Tab L, Modification Agreement]. 6 RR: Vol. 3 of 4 at 15 [Tab J, Martin & Millican File]. 7 SUPP RR: Vol. 2 of 6 at 121:13 – 122:8 [Tab K, Martin Trial Testimony]. 5 imagine they wanted my input.”8 Mr. Martin could not have provided any meaningful independent counsel because he was not cognizant of the fact that a principal reduction was even occurring as part of the Modification, much less in what amount. 4. Nor did Edell receive independent counsel from her accountant Lori Graham. In her testimony Ms. Graham confirmed that the post-it note that advised her of the elimination of interest had been delivered to her by Amanda Wade with other documents for her work in 2010 on Edell’s 2009 taxes.9 The post-it note was written by Amanda Wade several months after the Modification and states that payments with interest were made only through May, and that Edell “then relieved us of our interest and changed our note to principal only.” 10 It contains no mention of a gift or a principal reduction.11 Ms. Graham confirmed that Amanda was her point of contact and she testified that Edell didn’t actually come in to get her return, and that she hadn’t spoken with Edell in several years. 12 Ms. Graham testified that she went off of the information provided to her to prepare Edell’s tax returns and that she would have needed to know about a forgiveness of debt or gift 8 SUPP RR: Vol. 2 of 6 at 88:12-25 [Tab K, Martin Trial Testimony]. 9 SUPP RR: Vol. 3 of 6 at 8:6 – 9:20 [Tab M, Lori Graham Trial Testimony]. 10 RR: Vol. 3 of 4 at 3 [Tab N, Amanda Wade Note to Lori Graham]; and SUPP RR: Vol. 3 of 6 at 132 [Tab O, Amanda Wade Trial Testimony]. 11 RR: Vol. 3 of 4 at 3 [Tab N, Amanda Wade Note to Lori Graham]; and SUPP RR: Vol. 3 of 6 at 132 [Tab O, Amanda Wade Trial Testimony]. 12 SUPP RR: Vol. 3 of 6 at 9:12 – 20; 12:15 – 16; 12:2-3 [Tab M, Lori Graham Trial Testimony]. 6 or other details of a loan restructure but that she did not interview Edell Wade to get the details.13 Ms. Graham testified that she “probably” spoke with Mr. Martin but she did not recall the specifics. She stated “I do know that the modification was not my recommendation.”14 5. Alleged misrepresentation #2: Appellees have not controverted Bud’s representation that the only hard evidence of communication between Mr. Martin and Edell is dated after the execution of the Modification.15 Johnny’s self-serving testimony that he took his mother to Mr. Martin’s office and left the room while they discussed it is (a) not confirmed by Mr. Martin and (b) was never mentioned by Johnny Wade or anyone else in prior deposition testimony or other discovery conducted during more than three years leading up to trial. And, as already discussed, the terms “Mrs. Wade” and “client” are frequently used in Mr. Martin’s file to reference Amanda Wade. Mr. Martin did not testify that he spoke with Edell Wade. 6. Alleged misrepresentation #3: Appellees have not produced any evidence that Edell wanted the Modification, in particular the $40,000.00 reduction in principal, other than self-serving testimony from Johnny and Amanda. The reliable evidence supports the other view: the Modification that Edell signed 13 SUPP RR: Vol. 3 of 6 at 16:21 – 19:5 [Tab M, Lori Graham Trial Testimony]. 14 SUPP RR: Vol. 3 of 6 at 21:11 – 24 [Tab M, Lori Graham Trial Testimony]. 15 RR: Vol. 3 of 4 at 20 [Tab J, Martin & Millican File]. 7 stated on its face in bold lettering that its “SOLE PURPOSE” was only for the elimination of interest.16 The testimony of Mr. Martin and Ms. Graham – the individuals who were not a party to the transaction and who were in a position to ostensibly implement Edell’s wishes – confirmed that they were not aware of a principal reduction and did not speak with Edell about a principal reduction. 7. Alleged misrepresentation #4: Appellants claim that Cavness never rejected the material terms about which Bud complains, but this too is not supported by the evidence. Amanda herself testified that Mr. Cavness had questioned the price and also recommended a “regular interest rate.” 17 The documents show that Amanda reduced the default interest rate from 18% to 12%. 18 8. Alleged misrepresentation #5: The jury was permitted to hear only a limited testimony on the 2004 sale of the ranch to Johnny and Amanda, and specifics about the sale were not discussed. Appellant was not able to, for example, call an expert to appraise the fair market value of the ranch. At trial, in response to an objection to testimony about the sale, Judge Savage directed counsel during trial: “So we can’t go into the specific facts of the sale other than to allow plaintiff to show part of a plan or scheme to defraud her from the beginning.” 19 16 RR: Vol. 3 of 4 at 39-46 [Tab L, Modification Agreement]. 17 SUPP RR: Vol. 3 of 6 at 57:4-7 [Tab O, Amanda Wade Trial Testimony]; and CR: 407 [Tab P, Amanda Wade Deposition]. 18 CR: 364 – 380 [Tab Q, Pat Cavness File]. 19 SUPP RR: Vol. 3 of 6 at 46 [Tab R, Judge Savage Statement During Trial]. 8 9. Alleged misrepresentation #6: Bud’s testimony at trial is irrelevant to the legal question that was improperly decided at summary judgment regarding whether or not he had a duty of reasonable diligence to investigate the terms of the 2004 sale of the ranch (as discussed more fully herein) and whether improper fact- findings were made at summary judgment prior to trial. 10. Moreover, Bud’s professed vague suspicion did not serve as notice to toll the limitations period. He attempted to obtain details on the sale of the ranch from Nancy and was unsuccessful. Nancy Burns testified that Johnny purposefully decided to conceal the sale from the other siblings before it happened. She recalled suggesting to him that he notify the other siblings of the sale by letter, but that “Johnny said no, that the place would not ever sell if they ever found out.”20 Nancy testified that Johnny said he would not send a letter “because he was afraid that somebody would object and that the place would not sell.” 21 Johnny also testified that he did not notify other people about the sale or its terms. 22 Amanda also testified that information on the sale was deliberately not sent to the other siblings. 23 Bud, a third party who had no duty in terms of diligence, was decidedly not on notice of its terms and did not find out the terms until the passing of his mother when, in connection with the administration of her Estate, he had access to 20 SUPP RR: Vol. 2 of 6 at 39:6 – 24 [Tab S, Nancy Burns Trial Testimony]. 21 SUPP RR: Vol. 2 of 6 at 41:7 – 12 [Tab S, Nancy Burns Trial Testimony]. 22 SUPP RR: Vol. 5 of 6 at 9:23 – 10:5 [Tab T, Johnny Wade Trial Testimony]. 23 SUPP RR: Vol. 3 of 6 at 141 – 142 [Tab O, Amanda Wade Trial Testimony]. 9 information previously undisclosed. As he testified, the sale “was all done in secret.”24 The very existence of conflicting testimony on what Bud could have known or what he should have done to find out proves the Appellant’s point as to Issue One – summary judgment was improper because there were disputed issues of material fact that were for a jury, not a judge, to assess. REPLY TO APPELLEES’ ARGUMENTS ON ISSUE ONE 11. In their summary judgment arguments to the Trial Court, Appellees did not meet their “particularly heavy burden” to establish their affirmative defense of limitations and to either (i) conclusively negate the applicability of the discovery rule or, if the discovery rule does apply, (ii) conclusively establish that the limitations was not tolled by showing that there is no genuine issue of material fact about when Bud discovered or should have discovered through reasonable diligence, the nature of the injury. Cobb v. TDCJ, 965 S.W.2d 59, 61 (Tex.App.―Houston 1st Dist.] 1998, no writ); Matter of Estate of Matejek, 928 S.W.2d 742 (Tex.App.―Corpus Christi, 1996) writ denied per curiam; In re Estate of Herring, 970 S.W.2d 583, at 586 (Tex.App.—Corpus Christi 1998, no pet.) (“Specifically, a defendant seeking summary judgment on the basis of limitations must prove when the cause of action accrued and, when applicable, must negate the discovery rule by proving as a matter of law that there no genuine 24 SUPP RR: Vol. 4 of 6 at 43:23 [Tab U, Bud Wade Trial Testimony]. 10 issue of fact about when the plaintiff discovered or should have discovered the nature of the injury.”). Appellees have failed to meet their burden as to both. A. Appellees’ Response Ignored That Bud Had No Legal Duty or Standing Until 2010 12. Bud had no duty of reasonable diligence to discover the terms of the 2004 sale of the ranch, nor did he have standing to challenge it, until after the death of his mother, Edell Wade, in 2010 when he became a beneficiary of her Estate. Bud was neither a party to the 2004 sale nor a third-party beneficiary. For purposes of limitations, a person may not be charged with constructive notice of the actual knowledge discernible from examination of public records unless that person was “under an obligation to search the records.” Kansa Reinsurance Co. v. Congressional Mortgage Corp., 20 F.3d 1362, 1370 (5th Cir. 1994); Boucher v. Willis, 236 S.W.2d 519 (Tex.Civ.App.—Eastland 1951) (the absence of a legal duty to examine deed records bars constructive notice). It was not until Bud became a beneficiary of the Estate after his mother’s passing that he was charged with a duty to investigate the contents of the probate records, and he fulfilled that duty. Mooney v. Harlin, 622 S.W.2d 83, 84 (Tex. 1981); see also Chapal v. Vela, 461 S.W.2d 466, 470 (Tex.Civ.App.—Corpus Christi 1970) (charging devisees under a will with constructive notice of all of the ownership of land by the father’s estate). 11 B. The Discovery Rule Does Apply to Bud’s Claims 13. The evidence of Bud’s injury is “objectively verifiable” and the nature of his injury is “inherently undiscoverable.” Appellees’ summary judgment arguments to the Trial Court were insufficient to show otherwise and their current arguments also fail. 14. The recent case relied upon by Appellees is distinguishable from the instant case; moreover, it was a fact-specific holding and does not stand for the general proposition Appellees urge, that “there is no ‘objectively verifiable’ evidence of wrongdoing when a mother sells her ranch to her son and his wife” and the discovery rule is therefore inapplicable. See page 32 of Appellees’ Brief; Moczygemba v. Moczygemba, --- S.W.3d ---, No. 04-14-00110, 2015 WL 704405 (Tex.App.—San Antonio, Feb 18, 2015, n.p.h.). 15. Moczygemba addressed a dispute between a living mother (who was the plaintiff), and her sons, to whom she had transferred real property for below market value years prior. 2015 WL 704405. She claimed she did not realize that she had conveyed mineral rights along with the land, despite the fact that the inclusion of mineral rights was readily apparent on the deeds. After reciting testimony from the mother about her intentions and the sons’ intentions, the court found no objectively verifiable evidence of an injury based on the deeds. Id. at *6. 12 16. In the instant case, there is no available testimony from Edell regarding her intentions as to the sale of the ranch in 2004. Even if she had a reason to sell the Ranch at below-market value, there remains objectively verifiable evidence of injury to her and to Bud individually. The terms of this seller-financed sale, in addition to the purchase price itself, caused injury to Edell and to Bud as a beneficiary of her Estate and the Note itself (which was not recorded) provides objectively verifiable evidence of that. The Note required Johnny and Amanda to pay Edell – who was 89 years old at the time – $500,000 over a period of 32 years, and at an annual interest rate of two percent (2%). 25 This meant that Edell would have to live to be 121 years old in order to be fully paid on the Note. 26 Thus, in lieu of the Ranch – by far the most significant asset in Edell’s possession – and in lieu of payment for that asset (even a below-market value lump sum), Edell and her Estate received comparatively insignificant monthly payments of $1,848 and later just $1,200 (after the Modification in 2009). 17. The injury is also “inherently undiscoverable.” First, Bud had no duty of reasonable diligence until his mother passed in 2010. Moreover, he nonetheless did exercise reasonable diligence and could not discover the terms of the Note. First, the publicly recorded documents did not reveal the purchase price nor the 25 RR: Vol. 3 of 4 at 58-66 [Tab V, Promissory Note]. 26 RR: Vol. 3 of 4 at 58-66 [Tab V, Promissory Note]. 13 terms of the Note. 27 Second, Johnny purposefully decided to conceal the sale from the other siblings before it happened. Nancy Burns testified that she suggested that the other children be notified of the sale by letter, but that “Johnny said no, that the place would not ever sell if they ever found out.”28 Nancy testified that Johnny said he would not send a letter “because he was afraid that somebody would object and that the place would not sell.”29 Johnny also testified that he did not notify other people about the sale or its terms. 30 Amanda also testified that information on the sale was deliberately not sent to the other siblings. 31 18. The discovery rule is applicable. C. Bud Did Not Have Notice of His Claims 19. The Appellees did not carry their high burden at summary judgment to conclusively demonstrate that Bud had notice of his claims, and the absence of any disputed issues of material fact on the issue of notice. Bud’s attempt to obtain details from Nancy and inability to do so, coupled with Johnny’s intentional decision not to disclose the terms of the sale, evidences his lack of notice. He could not have gleaned the details of the Note from the public records because they were not there. 27 Appellees incorrectly state that the purchase price of $500,000 was of public record as of March 2004. The Deed of Trust does not state “purchase price,” rather identifies the amount of principal that was financed. Tab W, CR 86. 28 SUPP RR: Vol. 2 of 6 at 39:6 – 24 [Tab S, Nancy Burns Trial Testimony]. 29 SUPP RR: Vol. 2 of 6 at 41:7 – 12 [Tab S, Nancy Burns Trial Testimony]. 30 SUPP RR: Vol. 5 of 6 at 9:23 – 10:5 [Tab T, Johnny Wade Trial Testimony]. 31 SUPP RR: Vol. 3 of 6 at 141 – 142 [Tab O, Amanda Wade Trial Testimony]. 14 20. In their current brief, Appellees refer to an interrogatory response where Bud stated his belief that Johnny and Amanda pressured Edell into selling the ranch and that they took advantage of her. See page 35 of Appellees’ Brief. His response does not say he thought that “at the time” of the sale, and is not evidence of notice. 21. Bud’s testimony at trial is, needless to say, not informative to whether the Appellees carried their burden as movant in a summary judgment proceeding conducted prior to trial. Nonetheless, the testimony cited to by Appellees also does not serve to conclusively establish that he had notice and that the limitations period cannot be tolled. The recorded documents did not reveal critical information on the terms of the deal. Johnny and Amanda explicitly testified that they deliberately did not reveal information to their siblings. 32 Bud testified it was all done in secret.33 There is no denying that there were material issues of disputed fact on the issue of notice and reasonable diligence, and disposition by summary judgment was premature and improper. The Trial Court, as explained in Appellants’ Brief, made improper findings of fact. 34 32 SUPP RR: Vol. 5 of 6 at 9:23 – 10:5 [Tab T, Johnny Wade Trial Testimony]; and SUPP RR: Vol. 3 of 6 at 141 – 142 [Tab O, Amanda Wade Trial Testimony]. 33 SUPP RR: Vol. 4 of 6 at 43:23 [Tab U, Bud Wade Trial Testimony]. 34 RR: Vol. 2 of 4 at 66, 75 [Tab X, Summary Judgment Hearing Transcript]. 15 D. The Trial Court’s Summary Judgment was Based on Limitations, and Limitations Alone 22. Appellees’ attempt to argue that the Trial Court granted summary judgment on grounds in addition to limitations is wrong at best, and disingenuous at worst. The transcript of the summary judgment hearing and Court’s ruling is in the appellate record. It is more than clear that the Court’s basis for the ruling was limitations. At the hearing, Judge Savage asked, noting the period during which Edell Wade was living after the 2004 sale: “Why didn’t the son call mom and say, Mom what’s going on? . . . he was aware of the fact that there was a sale but didn’t inquire of his mother or anyone else what the terms of the sale were. If he was so concerned about all of this, why didn’t he inquire using the - - I’m not talking about going down and digging through public records. I’m talking about picking up the phone or dropping by and saying, what’s going on?” 35 “All right. After hearing the evidence -- and let me just say this. I know that families, kids and families, may take advantage of a parent to the detriment of the other kids. I also know that sons don't want to rock the boat if mama is happy and bring her into the picture of a possible conflict between the kids. They want their mom to have a happy home, happy life. And I don't think that possibly mom got the best deal, but at the same time mom got other benefits as a result of this deal. And that is to have someone at the ranch caring for her. I can understand why he insisted upon buying the ranch if he was going to live there and take care of mom. Then that would be in 35 RR: Vol. 2 of 4 at 66 [Tab X, Summary Judgment Hearing Transcript]. 16 effect, in my mind, a part of the consideration of the sale of the ranch, was that promise from her son.” 36 23. As pointed out in Appellants’ Brief, this statement is replete with language that implicates impression, inference, and fact-finding that properly should be the provenance of the jury. This statement also unequivocally demonstrates that the basis for the ruling was limitations. REPLY TO APPELLEES’ ARGUMENTS ON ISSUE TWO 24. The Court instructed the jury that Johnny and Amanda were fiduciaries to Edell and, as such, they bore the burden to prove that they complied with their fiduciary duty in connection with the Modification. The instruction to the jury was that Johnny and Amanda had to prove each and every item of a list of required conduct. The only way to show compliance with their fiduciary obligations was to prove by a preponderance of the evidence each of the following: (a) The transaction in question was fair and equitable to Edell Wade; and (b) [Johnny and Amanda] made reasonable use of the confidence that Edell Wade placed in [them]; and (c) [Johnny and Amanda] acted in the utmost good faith and exercised the most scrupulous honesty toward Edell Wade; and (d) [Johnny and Amanda] placed the interests of Edell Wade before [their] own, did not use the advantage of [their] position to gain any benefit for [themselves] at the expense of Edell Wade, and did not place [themselves] in any position where [their] self-interest might conflict with [their] obligations as a fiduciary. 37 36 RR: Vol. 2 of 4 at 75 [Tab X, Summary Judgment Hearing Transcript]. 37 CR: 1541, 1543 [Tab Y, Charge to the Court]. 17 [emphasis added.] 25. Texas law applies a presumption of unfairness to transactions between a fiduciary and a party to whom the fiduciary owes her duties. Texas Bank and Trust Co. v. Moore, 595 S.W.2d 502 (Tex. 1980). “Critical” to determining whether there was a breach of fiduciary duty is the ‘determination of whether there was under the circumstances a good faith effort on the party of [the party claiming validity] to fully inform [Edell] of the nature and effect of the transactions.” Vogt v. Warnock, 107 S.W.3d at 778. Both Johnny and Amanda had a duty to ensure that Edell’s decisions in connection with the Modification were the result of “voluntary and intelligent consideration.” Stephen County Museum, Inc. v. Swenson, 571 S.W.2d 257, at 261 (Tex. 1974). A. Amanda Wade Testified that She Did Not Think About Fairness or Benefit to Edell 26. Amanda Wade testified that she did not think about the Modification in terms of fairness.38 She did so despite her awareness that she held a power of attorney and that she and Edell had a relationship of trust and confidence.39 She testified that the Modification “obviously benefited me.” 40 She testified that she 38 SUPP RR: Vol. 3 of 6 at 130:8-9, 139 [Tab O, Amanda Wade Trial Testimony]. 39 SUPP RR: Vol. 3 of 6 at 59, 129 – 130, 124 - 125 [Tab O, Amanda Wade Trial Testimony]. 40 SUPP RR: Vol. 3 of 6 at 130:15 [Tab O, Amanda Wade Trial Testimony]. 18 didn’t consider whether the Modification would be financially beneficial to Edell.41 She acknowledged that Edell received less money as a result of the Modification and that it benefited herself and Johnny. 42 The payments dropped from $1,848 to $1,200.43 B. The Evidence does Not Support that Edell was Represented by Counsel in Both Transactions 27. It is undisputed that Amanda fired Edell’s long-time attorney Pat Cavness – an attorney whom Edell was paying 44 – in the middle of negotiations over the sale of the ranch in 2004. Amanda testified that “I did decide not to use Pat anymore.” 45 She testified she recalled “he questioned the price.” 46 She testified “I contacted Armbrust & Brown.” 47 Amanda testified further that she never took Edell to the Armbrust & Brown offices in Austin and that no lawyer from the firm came out to meet with Edell either.48 She testified that she paid the legal fees for the Armbrust & Brown deal, and the communications from the firm were directed to her, not to Edell. 49 41 SUPP RR: Vol. 3 of 6 at 135[Tab O, Amanda Wade Trial Testimony]. 42 SUPP RR: Vol. 3 of 6 at 131, 138 - 139[Tab O, Amanda Wade Trial Testimony]. 43 SUPP RR: Vol. 3 of 6 at 127, 138 – 139 [Tab O, Amanda Wade Trial Testimony]. 44 CR: 383 [Tab Q, Pat Cavness File]. 45 SUPP RR: Vol. 3 of 6 at 55:24 [Tab O, Amanda Wade Trial Testimony]. 46 SUPP RR: Vol. 3 of 6 at 57:6-7 [Tab O, Amanda Wade Trial Testimony]. 47 SUPP RR: Vol. 3 of 6 at 58:8 [Tab O, Amanda Wade Trial Testimony]. 48 SUPP RR: Vol. 3 of 6 at 58:9-23 [Tab O, Amanda Wade Trial Testimony]. 49 SUPP RR: Vol. 3 of 6 at 59 [Tab O, Amanda Wade Trial Testimony]. 19 28. It is telling that Amanda fired Mr. Cavness, who had questions and suggestions of his own in furtherance of Edell’s interests regarding the sale of the ranch, and who also wrote a non-representation letter to advise Johnny and Amanda that he represented Edell’s interests, not theirs. 50 It is also telling that, in the next transaction spearheaded by Johnny and Amanda – the Modification – they used an attorney who was happy to plug in the information that they fed him, and who, despite having a unique file number for Edell he had used in previous legal work for her, instead used a file number associated with Johnny and Amanda and named them as the client. 51 Mr. Martin wrote to Johnny and Amanda that “we have inserted the balance of $227,528.00, reduced the interest rate to zero, and made the monthly payment $1,200 per Amanda’s phone call of the 28th.” 52 29. Mr. Martin clearly and repeatedly identified Johnny and Amanda as the ‘client’ in the physical file he created at the time in 2009 and that he was paid for his work on the Modification by Amanda Wade, not Edell Wade. 53 Michael Martin testified he had considered the Modification a “joint project.” 54 He acknowledged that communications on the Modification were sent directly to 50 CR: 363 [Tab Q, Pat Cavness File]. 51 SUPP RR: Vol. 2 of 6 at 116:2-19 [Tab K, Martin Trial Testimony]. 52 RR: Vol. 3 of 4 at 24 [Tab J, Martin & Millican File]. 53 RR: Vol. 3 of 4 at 14, 15, 19, 21 [Tab J, Martin & Millican File]; and SUPP. RR: Vol. 2 of 6 at 116:17 – 118:1 [Tab K, Martin Trial Testimony]. 54 SUPP RR: Vol. 2 of 6 at 87:21-24 [Tab K, Martin Trial Testimony]. 20 Amanda and that Amanda paid for the work.55 Mr. Martin could not have provided Edell with independent counsel because he knew nothing about the principal reduction: “I may not have remembered at that time that they even talked about reducing the balance. And to this day I don’t know if or how much they reduced it” and that he thought he was reducing the interest to zero. 56 “I really didn’t know what was going on. It changed two or three times. I really didn’t know and hoped that with the accountant they would work it out to where everybody was happy,” and “I didn’t imagine they wanted my input.” 57 Mr. Martin could not have provided any meaningful independent counsel because he was not cognizant of the fact that a principal reduction was even occurring as part of the Modification, much less in what amount. C. The Evidence does Not Support that Edell Voluntarily, and with Full Disclosure, Chose to Sell the Ranch and Chose to Reduce the Principal in Connection with the Modification 30. Appellees have not produced any evidence that Edell wanted the Modification, in particular the reduction in principal, other than self-serving testimony from Johnny and Amanda. There is absolutely no evidence that Edell Wade was aware at all of the principal reduction of around $40,000. The reliable evidence supports the other view: the Modification that Edell signed stated on its 55 SUPP RR: Vol. 2 of 6 at 116:20 – 118:1 [Tab K, Martin Trial Testimony]. 56 SUPP RR: Vol. 2 of 6 at 121:13 – 122:8 [Tab K, Martin Trial Testimony]. 57 SUPP RR: Vol. 2 of 6 at 88:12-25 [Tab K, Martin Trial Testimony]. 21 face in bold lettering that its “SOLE PURPOSE” was elimination of interest.58 Mr. Martin’s file entry on the matter stated that the note was to be modified for either an elimination of interest or reduction of the principal. 59 31. Johnny’s self-serving testimony that he took his mother to Mr. Martin’s office and left the room while they discussed it is (a) not confirmed by Mr. Martin and (b) was never mentioned by Johnny or anyone else in prior deposition testimony or other discovery conducted during the more than three years leading up to trial. 32. Everyone involved in the Modification around the time it was executed has testified ignorance as to the principal balance at the time. Johnny did not know what the unpaid balance was at the time. 60 Amanda Wade testified that she did not know where the modified principal amount came from or how it was arrived at. 61 The testimony of Mr. Martin and Ms. Graham (Edell’s longtime accountant) – the individuals who were in a position to ostensibly implement Edell’s wishes – confirmed that neither of them were aware of a principal reduction and they did not speak with Edell about a principal reduction.62 There is 58 RR: Vol. 3 of 4 at 39-46 [Tab L, Modification Agreement]. 59 RR: Vol. 3 of 4 at 15 [Tab J, Martin & Millican File]. 60 SUPP RR: Vol. 5 of 6 at 16:14 – 16 [Tab T, Johnny Wade Trial Testimony]. 61 SUPP RR: Vol. 3 of 6 at 130:3-4, 134 – 135 [Tab O, Amanda Wade Trial Testimony]. 62 SUPP RR: Vol. 2 of 6 at 88:12-25, 121:13 – 122:8 [Tab K, Martin Trial Testimony]; SUPP RR: Vol. 3 of 6 at 8:6 – 9:20, 12:15 – 16, 12:2-3, 16:21 – 19:5 [Tab M, Lori Graham Trial Testimony]; and 22 no viable way to look at the evidence and find that Edell Wade was provided with full disclosure on the terms of the Modification when the principal reduction is not stated on the document and the people involved did not even know what the actual balance on the Note was, much less how much was reduced. 33. The Appellees assert that Edell was just like the decedent in Vogt v. Warnock, who “had made the gifts (i) voluntarily, (ii) while competent and (iii) after talking to an attorney.” See page 44 of Appellees’ Brief. In the instant case there exists substantiated evidence only for competency, but as previously outlined, not for the premise that the transactions were made by Edell voluntarily and after talking to an attorney. While no one has disputed that Edell was of sound mind, that does not mean she was not unduly influenced to enter into the Modification, nor does it mean that Johnny and Amanda fulfilled their fiduciary obligations of ensuring fairness and full disclosure in connection thereto. 34. Edell was increasingly isolated from the world after Johnny and Amanda moved onto the ranch. Amanda testified that the gate to the ranch was locked after 2005 and that no key was given to Bud or to his wife Gwen. 63 She also testified that she had told the family that Edell could no longer host her birthday parties at the ranch, despite the fact that family gatherings had traditionally taken place at the ranch and despite the life estate they had ostensibly RR: Vol. 3 of 4 at 3 [Tab N, Amanda Wade Note to Lori Graham]. 63 SUPP. RR: Vol. 3 of 6 at 116 - 121 [Tab O, Amanda Wade Trial Testimony]. 23 granted to Edell. 64 There was no evidence that Edell consulted with Lori Graham, Michael Martin, or anyone else regarding the details of the Modification. As in Jordan v. Lyles, “the record contains no evidence that [] anyone [] specifically discussed” the transaction “and informed [her] of all material facts relating” thereto. 455 S.W.3d 785, 795 (Tex.App.—Tyler 2015 n.p.h.). 35. Amanda herself testified that the Modification did not benefit Edell financially, that it benefited herself and Johnny, and that she never thought about its fairness. 65 Such testimony confirms that she did not fulfill her obligation to ensure that the Modification was “fair and equitable” to Edell. 36. The evidence simply does not establish that Johnny and Amanda complied with their obligations to (a) ensure the Modification was fair and equitable to Edell, (b) make reasonable use of the confidence Edell placed in them, (c) act in utmost good faith and exercise the most scrupulous honesty towards Edell, and (d) place Edell’s interests above their own, not use their position to their advantage or to gain any benefit at Edell’s expense, and not place themselves in a position where their self-interest might conflict with their obligations as 64 SUPP. RR: Vol. 3 of 6 at 121 – 123 [Tab O, Amanda Wade Trial Testimony]. 65 SUPP RR: Vol. 3 of 6 at 129 – 131, 135, 138 - 139 [Tab O, Amanda Wade Trial Testimony]. 24 fiduciaries. 66 They failed to produce evidence showing they fulfilled their duties; and in fact the record establishes that they did not. PRAYER WHEREFORE, PREMISES CONSIDERED, James E. Wade prays that this Court overturn the Summary Judgment Order and the Final Judgment in this case and remand the case for a new trial. Appellant further prays for such other relief, whether at law or in equity to which this Court deems he is justly entitled. Respectfully submitted, RICHIE & GUERINGER, P.C. BY: /s/ Sheldon E. Richie SHELDON E. RICHIE State Bar of Texas No. 16877000 Email: srichie@rg-austin.com EMILY J. SEIKEL State Bar of Texas No. 24072331 Email: eseikel@rg-austin.com 100 Congress Avenue, Suite 1750 Austin, Texas 78701 512-236-9220 telephone 512-236-9230 facsimile ATTORNEYS FOR APPELLANT JAMES E. WADE 66 CR: 1539-1558 [Tab Y, Charge of the Court and Verdict]. 25 CERTIFICATE OF COMPLIANCE Pursuant to Texas Rules of Appellate Procedure 9.4, the undersigned certifies Appellant’s Reply Brief complies with 9.4. 1. Exclusive of the exempted portions in Texas Rules of Appellate Procedure 9.4(i)(1), Appellant’s Reply Brief contains 5,795 words. 2. Appellant’s Reply Brief has been prepared in proportionally spaced typeface using Microsoft Word Version 2007 in Times New Roman 14 point. 3. The undersigned has provided an electronic version of Appellant’s Reply Brief. 4. The undersigned understands a material misrepresentation in completing this certificate, or circumvention of Texas Rules of Appellate Procedure 9.4, may result in the Court’s striking Appellant’s Reply Brief. /s/ Emily J. Seikel Sheldon E. Richie/Emily J. Seikel 26 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 26th day of August, 2015, a true and correct copy of the foregoing was served as follows: Counsel for Appellees For Johnny Wade and Amanda Wade Individually Kathryn E. Allen Graves, Dougherty, Hearon & Moody 401 Congress Avenue, Suite 2200 Austin, Texas 78701 512-480-5651 Telephone 512-480-5851 Facsimile kallen@gdhm.com Email For Amanda Wade as Independent Executor Claude E. Ducloux Hill, Ducloux, Carnes & De La Garza 400 West 15th Street, Suite 808 Austin, Texas 78701 512-474-7054 Telephone 512-474-5605 Facsimile cducloux@hdcdlaw.com Email /s/ Emily J. Seikel Sheldon E. Richie/Emily J. Seikel 27 NO. 03-15-00100-CV IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN IN RE THE ESTATE OF EDELL WADE, DECEASED. JAMES E. WADE, Appellant. APPENDIX 28 TABLE OF CONTENTS 67 OF RECORD EXHIBITS ACCOMPANYING APPELLANT’S BRIEF IN REPLY TO APPELLEES’ BRIEF NO. TITLE OF DOCUMENT Tab J. Martin & Millican File 68 Tab K. Michael Martin Trial Testimony 69 Tab L. Modification Agreement 70 Tab M. Lori Graham Trial Testimony 71 Tab N. Amanda Wade Note to Lori Graham72 Tab O. Amanda Wade Trial Testimony 73 Tab P. Amanda Wade Deposition Testimony (Excerpts) 74 Tab Q. Pat Cavness File75 Tab R. Statement by Judge Savage During Trial 76 Tab S. Nancy Burns Trial Testimony 77 Tab T. Johnny Wade Trial Testimony 78 Tab U. Bud Wade Trial Testimony 79 Tab V. Promissory Note 80 Tab W. Deed of Trust81 67 The Appendix to Appellant’s Brief is hereby incorporated herein by reference and, for ease of reading, the instant Appendix begins with the next available Tab designation. 68 RR: Vol. 3 of 4 at 14-86 69 SUPP. RR: Vol. 2 of 6 at 78-131 70 RR: Vol. 3 of 4 at 39-46 71 SUPP. RR: Vol. 3 of 6 at 7-21 72 RR: Vol. 3 of 4 at 3 73 SUPP. RR: Vol. 3 of 6 at 22-230 74 CR: 407 75 CR: 347-387 76 SUPP. RR: Vol. 3 of 6 at 45 77 SUPP. RR: Vol. 2 of 6 at 7-77 78 SUPP. RR: Vol. 5 of 6 at 7-74. 79 SUPP. RR: Vol. 4 of 6 at 30-65. 80 RR: Vol. 3 of 4 at 58-66 81 CR: 86-100 29 NO. TITLE OF DOCUMENT Tab X. Statements by Judge Savage During Summary Judgment Hearing 82 Tab Y. Charge of the Court and Verdict 83 82 RR: Vol. 2 of 4 83 CR: 1539-1558 30 NO. 03-15-00100-CV IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN IN RE THE ESTATE OF EDELL WADE, DECEASED. JAMES E. WADE, Appellant. VERIFICATION Before me, the undersigned notary, on this day personally appeared Emily J. Seikel, the affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant testified: 1. "My name is Emily J. Seikel. I am over 18 years of age, of sound mind, and capable of making this affidavit. I am an attorney for Appellant James E. Wade. The facts in this affidavit are within my personal knowledge and are true and correct. 2. "I certify and verify that I have reviewed the Appellant's Reply Brief and concluded that every factual statement in the Reply Brief is supported by competent evidence included in the appendix or record, and that the items contained in the Appendix are accurate copies of documents from the Clerk and Reporter's Records that are material to the Appellant's Brief. ~/) ~)~. Emily J. SeikelJ 31 STATE OF TEXAS § § TRAVIS COUNTY § SUBSCRIBED AND SWORN TO before me on this the 26th day of August 2015, to certify which witness my hand and seal of office . . .~~"j!i:~1:f,~~;··.. M L STEVENSON Notary Public In and For State of Texas {:! 'ui.' 0 \~ i NOTARY PUBLIC state of Texas •.,, \ 1 ;;;.....~+Y "• •••iaf...." Comm. Exp. 06-20-2016 32 03-15-00100-CV 1 REPORTER'S RECORD 2 VOLUME 3 OF 4 VOLUMES FILED IN 3rd COURT OF APPEALS 3 CAUSE NO: P9127/COURT OF APPEALS NO: 03-15-00100-CV AUSTIN, TEXAS 3/18/2015 10:35:27 AM 4 IN THE MATTER OF IN THE COUNTY COURT JEFFREY D. KYLE Clerk 5 THE ESTATE OF AT LAW 6 EDELL WADE BURNET COUNTY, TEXAS 7 8 9 10 11 EXHIBITS 12 13 14 15 16 On the 11th day of April, 2014, the foregoing 17 proceedings came on to be held in the above-titled and 18 numbered cause before the HONORABLE RANDY SAVAGE, Judge 19 presiding at Burnet, Burnet County, Texas. 20 Proceedings reported by computerized stenotype 21 machine. 22 23 24 25 1 TAB J RR VOL 3 OF 4 AT 14-86 Page 1 of 86 1 EXHIBIT INDEX 2 Plaintiff's Trial Exhibits: 3 NUMBER DESCRIPTION OFFERED RECEIVED VOL 4 7 Payments made (trial not transcribed) 5 9 Power of Attorney (trial not transcribed) 6 11 Modification Agreement (trial not transcribed) 7 38 File from Michael Martin(trial not transcribed) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 TAB J RR VOL 3 OF 4 AT 14-86 Page 2 of 86 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 14 of 86 WORK ORDER ATTORNEY: ~M DATE: 4- I'I.- D' Client: :;;:t=:(,. u"" '1---~..t.r..&?.c.._-=«._,.('-",_"!!J!fE-,___ __ 0 Address: _ _ _ _ _ _ _ .....•. _ __ --- -- - - Phone Numbers: Home _ _ _ _ _ _ BuslnoH: - - - - - - Other: _ __ File Name: Fee Arrangement: - - - - Date: '-1-lt.-~_y_ _,·, ---;;; - ,--{ - - . 7, •f ' (L .- . '- .,(.• ~:--!. \ i/ >f. ( .... t '' L .' .. · - ; .( ·l{ I .A H '- ~ "' _, l ? -· - 0 ---------- ·-- -..--------------- - - -- · - - - - - - -·- - - - ------ ---- . ---- - ________ _____.. _.. ... ....... -· ----- ., __ _ - - --- ----·--- ----------------------..-·-- -- --- .. - ·- - - -· --- --------------- 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 15 of 86 0 0 0 ... f MARTIN, MILLICAN, HENDERSON & SHRUM AITORNEYS AT LAW 512 EAST FOURTH STREET LAMPASAS, TEXAS 76550 512/556-6228 Re: 16,163/MMM/Wade Date: January 31, 2012 Enclosed is original Record of Examination on Written Questions on the Wade matter. MR EVAN STUBBS ATTORNEY AT LAW 202 NORTH PORTER LAMPASAS TX 765650 TAB J RR VOL 3 OF 4 AT 14-86 Page 16 of 86 0 P. 1 1 * Conunica.tion Result Report ( Ja.n.25. 2012 1:59PM l 111 * * ~~ M.a.r t 1 t• & Mi I l i ~.,,. Da.:e/Time: Ja.n. 25. 2~12 1:59PM F. I e Pase No. Mode Dest i na.t ion pg (s) Resul: Not Sent 9615 Memory TX 5568975 P. 4 OK ---------------------------------------------------------------------------------------------------- 0 ~ Reaaon for error ~: jl ~:":"~!.~r 1 ine f&i' t ~~ Bua!f No •acai"' ' ' • connec~ion li.5) E•c:eeded ma-.. E-m•ll ailte -:=...---~=-~~="?:r=:-:::t:~ ::-..::.~==:.::-.:::--=::.-:.., ........... ....... -= _____ .. _,. _ _..."1_"'1_. -...~ ........ - . . . . . . . . . JoMe .... _ _...a...,_.... -· 0 Z:IIIZ'IIZ_,. ._,. --- :al.lld'IIII-:J ..=----....... -~­ ,... .U'WI :puN . IIZZIHBI!:III ::1ND1W _.__.'IN:IrTWI_ DllftLIU.__., ·a HDII'1D.I .I.IIVll z:1o MV'I~V IIAliNWO.U.V IIWIWI'W 'EMI:JD'I 'I'«JJIJ -- :w:u.v MVl~"'~"' -1\lai«I\J-- - XY:I 0 . .. TAB J RR VOL 3 OF 4 AT 14-86 Page 17 of 86 Stuhh" 202 N. PORI ERST• • LAMPASAS, T EXAS 76550 .1\\ ( )ill~._~ c· PHONE: (512) !55&8970 • FAX: (512) 55&897!5 0 I' I I . rincipal Princi1--- Interest .llfl Date This Period This Period New Balance To Date 89 10/ l/16 0.00 1,200.00 120,728.00 o.oo 0 90 91 Subtotal: 11/ 1/16 12/ 1/16 0.00 0.00 0.00 14,400.00 1,200.00 1,200.00 118,328.00 119,528.00 118,328.00 o.oo 0.00 0.00 -------------------------------------------------------------------------------- 92 1/ 1/17 0.00 1,200.00 117,128.00 0.00 93 2/ 1/17 0.00 1,200.00 115,928.00 0.00 94 3/ 1/17 0.00 1,200.00 114,728.00 0.00 95 4/ 1/17 0.00 1,200.00 113,528.00 0.00 96 5/ 1/17 0.00 1,200.00 112,328.00 0.00 97 6/ 1/17 0.00 1,200.00 111,128.00 0.00 98 7/ 1/17 0.00 1,200.00 109,928.00 0.00 99 8/ 1/17 0.00 1,200.00 108,728.00 0.00 100 9/ 1/17 o.oo 1,200.00 107,528.00 0.00 101 10/ 1/17 0.00 1,200.00 106,328.00 0.00 102 11/ 1/17 0.00 1,200.00 105,128.00 0.00 103 12/ 1/17 0.00 1,200.00 103,928.00 o.oo -------------------------------------------------------------------------------- Subtotal: 0.00 14,400.00 103,928.00 o.oo 104 1/ 1/18 0.00 1,200.00 102,728.00 0.00 10!:1 21 1/18 o.oo 1,200.00 101,528.00 0.00 106 3/ 1/18 o.oo 1,200.00 100,328.00 0.00 107 4/ 1/18 0.00 1,200.00 99,128.00 0.00 108 5/ 1/18 0.00 1,200.00 97,928.00 0.00 109 6/ 1/18 0.00 1,200.00 96,728.00 0.00 110 7/ 1/18 o.oo 1,200.00 95,528.00 o.oo 111 8/ 1/18 o.oo 1,200.00 94,328.00 o.co 112 9/ 1/18 0.00 1,200.00 93,128.00 0.00 113 10/ 1/18 0.00 1,200.00 91,928.00 0.00 114 11/ 1/18 0.00 1,200.00 90,728.00 0.00 115 12/ 1/18 0.00 1,200.00 89,528.00 0.00 -------------------------------------------------------------------------------- Subtotal: 0.00 14,400.00 89,528.00 0.00 116 1/ 1/19 0.00 1,200.00 88,328.00 o.co 117 2/ 1/l!) 0.00 1,200.00 87,128.00 0.00 118 3/ 1/19 o.co 1,200.00 85,928.00 0.00 119 4/ 1/19 0.00 1,200.00 84,728.00 0.00 0 120 121 ], ?.2 123 5/ 6/ 7/ 8/ 1/19 1/19 1/19 1/19 o.co 0.00 0.00 0.00 1,200.00 1,200.00 1,:?.00.00 1,200.00 83,528.00 82,328.00 81,128.00 79,928.00 0.00 0.00 0.00 0.00 124 9/ 1/19 o.co 1,200.00 78,728.00 0.00 125 10/ 1/19 0.00 1,200.00 77,528.00 0.00 126 11/ 1/19 o.co 1,200.00 76,328.00 0.00 127 12/ 1/19 0.00 1,200.00 75,128.00 o.oo -------------------------------------------------------------------------------- Subtotal: 0.00 14,400.00 75,128.00 o.oo 128 1/ 1/20 0.00 1,200.00 73,928.00 0.00 129 2/ 1/20 o.oo 1,200.00 72,728.00 0.00 130 3/ 1/20 0.00 1,200.00 71,528.00 0.00 131 4/ 1/20 0.00 1,200.00 70,328.00 0.00 132 5/ 1/20 0.00 1,200.00 69,128.00 0.00 133 6/ 1/20 0.00 1,200.00 67,928.00 0.00 134 7/ 1/20 o.oo 1,200.00 66,728.00 0.00 135 8/ 1/20 0.00 1,200.00 65,528.00 0.00 136 9/ 1/20 0.00 1,200.00 6(,328.00 0.00 137 10/ 1/20 0.00 1,200.00 63,128.00 0.00 138 11/ 1/20 0.00 1,200.00 61,928.00 0.00 139 12/ l/20 0.00 1,200.00 60,728.00 o.oo 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 27 of 86 Inte. t: Principal PrinciJ,. Interest u Date This Period This Period New Balance To Date .. . -------------------------------------------------------------------------------- 0 Subtotal: HO H1 1/ 2/ 1/21 1/21 0.00 14,400.00 0.00 0.00 60,728.00 1,200.00 1,200.00 59,528.00 58,328.00 0.00 0.00 0.00 H2 3/ 1/21 o.oo 1,200.00 57,128.00 0.00 143 4/ 1/21 0.00 1,200.00 55,928.00 0.00 H4 5/ 1/21 0.00 1,200.00 54,728.00 0.00 H5 6/ 1/21 0.00 1,200.00 53,528.00 0.00 H6 7/ 1/21 0.00 1,200.00 52,328.00 o.oo 147 8/ 1/21 o.oo 1,200.00 51,128.00 0.00 148 9/ 1/21 0.00 1,200.00 49,928.00 o.oo 149 10/ 1/21 0.00 1,2CO.OO 48,728.00 0.00 150 11/ 1/21 0.00 1,200.00 47,528.00 0.00 15: 12/ 1/21 0.00 1,200.00 46,328.00 0.00 -------------------------------------------------------------------------------- Subtotal: 0.00 14,400.00 46,328.00 0.00 152 1/ 1/22 0.00 1,200.00 45,128.00 0.00 153 21 1/22 0.00 1,200.00 43,928.00 0.00 154 3/ 1/22 0.00 1,200.00 42,728.00 0.00 155 4/ 1/22 0.00 1,200.00 41,528.00 0.00 156 5/ 1/22 0.00 1,200.00 40,328.00 o.oo 157 6/ 1/22 0.00 1,200.00 39,129.00 0.00 158 7/ 1/22 0.00 1,200.00 37,928.00 0.00 159 8/ 1/22 0.00 1,200.00 36,728.00 0.00 160 9/ 1/22 o.oo 1,200.00 35,528.00 0.00 161 10/ 1/22 0.00 ::..,200.00 34,329.00 0.00 162 11/ 1/22 0.00 :,200.00 33,129.00 0.00 163 12/ 1/22 0.00 1,200.00 31,928.00 0.00 -------------------------------------------------------------------------------- Subtotal.: 0.00 14,400.00 31,928.00 0.00 164 1/ 1/23 o.oo 1,200.00 30,729.00 0.00 165 2/ 1/23 0.00 1,200.00 29,528.00 0.00 166 3/ 1/23 0.00 1,200.00 28,328.00 o.oo 167 4/ 1/23 o.oo 1,200.00 27,128.00 0.00 168 5/ l/23 o.oo 1,200.00 25,929.00 0.00 169 6/ 1/23 0.00 1,200.00 24,728.00 o.oo 170 7/ 1/23 0.00 1,200.00 23,528.00 0.00 0 171 172 173 174 6/ 9/ 10/ 11/ 1/23 1/23 1/23 11'3 0.00 0.00 0.00 0.00 1,200.00 1,200.00 1,200.00 1,200.00 22,328.00 21,128.00 19,928.00 18,728.00 0.00 0.00 o.oo 0.00 1'7!) 12/ 1/23 0.00 1,200.00 17,528.00 o.oo -------------------------------------------------------------------------------- Subtotal: 0.00 14,400.00 17,528.00 c.oo 176 1/ 1/24 0.00 1,200.00 16,328.00 0.00 177 ')/ 1/24 0.00 1,200.00 15,128.00 0.00 l. "/8 3/ 1/24 0.00 1,200.00 13,928.00 0.00 179 IJ/ 1/24 o.oo 1,200.00 12,728.00 0.00 160 5/ 1/24 0.00 1,200.00 11,528.00 o.oo 161 6/ 1/24 0.00 1,200.00 10,329.00 0.00 182 7/ 1/24 0.00 1,200.00 9,128.00 o.oo 183 8/ 1/24 0.00 1,200.00 7,928.00 o.oo 180 ., Amount Bonowed soo.oooool lHI LOan Date Date 21tl20081 . Loan ~ o.o:zaof Interest This Period Flliii Pint Dale :vtl2008! iDf Pcia Pr1.ncipa1 This Period :rnl :=;Pmi 'lerwn•l = Pr1nc pal New Bal.ance t!J .,.._. 1.1141. 1~ nterest To Date Palnt8 APR% 1 J/ 1/06 8.33 1,839.77 498,160.23 8.33 2 41 1106 8.30. 1,839.80 496,320.43 16.63 j ':>I .l/06 8.27 1,839.83 494,480.60 24.90 4 6i l/06 8.24 1,839.86 492,640.74 33.14 5 ., ' • I 1/06 8.21 1,839.89 490,800.85 41.35 6 81 1/06 9.18 1,839.92 .,85,960.93 49.53 7 91 1106 !!.15 1,839.95 487,120.98 57.68 8 : OI 1/06 6 .12 1,839.98 485,281.00 65.80 9 :11 1/06 8.09 1,840.01 483,440.99 "73.89 10 "?/ l/C6 8.06 1,840.04 481,600.95 81.95 Subt otal: 81.9S 18,399.05 481,600.95 61.9!) ll l/ 1107 IL03 1,840.07 479,760.88 89. qa 12 2/ 110 "1 t!.OO 1,840.10 477,920.78 97.98 1.3 3 / lt0 7 i . 97 1,840.13 476,080.65 10':> . 95 14 .j/ 1/07 7.93 1,840.17 474,240.48 1:3.88 15 5/ 1/07 7.90 1,840.20 472,400.28 121.78 16 6/ 1/07 7.87 1,840.23 470,560.05 129.65 17 7/ 1/07 7.84 1,840.26 468,719.79 137.49 18 8/ 1/07 7.81 1,840.29 466,879.50 145.30 19 9/ 1/07 7.78 1,840.32 465,039.18 153.08 20 :ot 1/07 7.75 1,840.35 463,198.83 160.83 :.n 0 ~ 1/ li07 7.72 1,840.38 461,358.45 168.55 22 :21 l/0"1 7.69 1,840.41 459,518.04 1"76.24 -------------------------------------------------------------------------------- Su:::-t:otal: 94.29 22,082.91 45!:t,!J18.04 116.24 2 ., l/ 1/08 7.66 1,840.44 . 457, 677. 60 183.90 24 2/ l/08 7.63 1,840.47 455,837.13 191.53 25 3/ 1/08 .,7.60 1,840.50 453,996.63 199.13 4/ 1/0il .57 1,840.53 206.70 7.6 ~7 5/ l/08 ., .54 1,840.56 452,156.10 450,315.54 2:4.24 28 6/ l/08 "! .51 1,840.59 448, •174. 95 221.75 29 7/ 1/08 "7.47 1,840.63 446,634.32 229.22 ~() P.l 1/08 ., .44 1,840.66 444,793.66 236.66 .- 31 _, 13 'ill 1108 ~I)/ :11 1/08 l/08 7.41 i • jf:l .,, .35 1,840.69 1,840.72 1,840.75 ·441. 952. 9":' 441,112.25 439,2"11.50 ?44.07 2!>1.45 396,925.84 419.44 ~~ 11/ 1/10 6.62 1,841.48 395,084.36 426.06 !:8 12/ 1/10 6158 1,841.52 393,242.84 4 32.64 -------------------------------------------------------------------------------- Subtot:al: 91.05 22,096.15 393,242.84 432.64 !:9 1/ 1/11 ti.55 1, 841.55 391,401.29 439.19 f(l 21 1/11 6152 1,841.59 389,559 •.71 445.71 1:-! .j/ 1/ll 6.49 :,841.61 387,718.10 452.20 62 II/ 1/ll 6. 46 1,841164 385,876.46 ol:::>l:l.6b 63 51 1/11 6.43 1,841167 384,034.79 4 65109 64 6/ 1/11 6. 40 :.,841.70 382,193.09 471.49 65 7/ 1/11 6.37 1,841173 380,351.36 47'7.86 1>6 R/ 1/ll 6134 1,841.76 378,509.60 484.20 t· r ~I 1/ll 6.31 1,841179 376,667.81 490 I '51 68 10/ 1/11 6~28 :i.,841~82 3"'14,825.99 4!:J6~79 6;) 11/ 1/11 6.25 :.,841185 372,984.14 503.04 "70 1:t:/ 1/11 6.22 ::.,841.89 371,142.26 509.26 -------------------------------------------------------------------------------- 0 Suht o ~ a 1 : '11 ·;:! ~I 76162 l / 1/12 1/12 22,100.58 6119 6.16 :I 841 I 91 :, 841.94 371,142~26 509.26 369,.300.3.5 367,458.41 515.45 521.61 'i3 14 "/!'I .. 3./ 1/12 4/ 1/12 _,, 1/12 6.12 6.09 6.06 ::.,841.98 :,842101 :,842104 365,616.43 363,'174.42 361,532.38 527.73 533.82 539.88 ,..., /b 6/ 7/ 1/12 l/1;! .;. 03 6.00 :,842107 :,842.10 360,090.31 358,248.21 54!>.91 !:>~ : ~!H 78 e1 1/12 !:.197 :.,842~13 356,406.08 557. 8R ·;g 9/ 1/12 5194 ::.,842~16 354,563.92 563.82 EO 10/ 1/12 5. 91 :,842~19 352,721.73 569.73 F.~ 11/ l/12 5.88 :,842~22 350,879.51 575.61 E2 1~1 1/12 5.85 :,842125 349,037.26 5A1.46 -------------------------------------------------------------------------------- 5'-JbtO!:.:ll! 72.20 22,105.00 349,037126 581.1)6 c3 1/ 1/13 5182 ,842129 347, 194.98 597.28 E4 21 1/13 5179 ,842131 345,352.67 f>93107 F.~- 3./ 1/13 ~} • ., 6 ,842.34 343,510.33 598.83 Eb 4/ 1/l:J ':>. 13 ,842137 341,66'1.96 6:l4.5E E"l 5/ 1/13 5169 ,842.41 33~,525.55 610.25 68 6/ 1/13 5166 ,842~44 337,983111 615.91 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 32 of 86 ·-·---- - ··· ·--··-·· InterL __ Principal Principo- Interest. tl Date I'his Period This Period New Bal.ance To Date 89 7/ 1/13 5.63 1,Q.42.47 336,140.64 621.54 0 90 91 92 93 8/ 1/13 9/ 1/13 0/ 1/13 l l 1/lJ 5.60 5.57 5.54 ~. . 51 1,842.50 1,842.53 1,842.56 1,842.59 334,298.14 332,455.61 330,613.05 328,770.46 627.14 632.71 638.25 643.76 9" 21 1/13 ~-49 1,842.62 326,927.84 649.24 -------------------------------------------------------------------------------- S:J.b::.ota.:.: 67.78 22,109.42 326,927.84 649.24 95 1/ 1/14 5.45 1,842.65 325,085.19 654.69 9E 21 1/14 5.42 1,842.68 323,242.51 6GO.ll 97 3/ 1/14 5.39 1,842.71 32:.,399.80 665.50 96 41 l/14 5.36 1,842.74 319,557.06 670.86 99 51 1./H 5.33 1,842.77 317, 71."4 .29 676.19 l.OO 6/ :/14 5.30 1,842.80 315,871.49 681.49 101 11 :.114 5.26 1,842.84 314,028.65 686.75 102 8/ :/14 5.23 1,842.87 312,185.78 691.98 103 9/ :/14 5.20 1,842.90 310,342.88 697.18 104 10/ : /14 !l.17 1,842.93 308,499.95 702.35 105 111 :./14 !).14 1,842.96 306,656.99 707.49 106 12/ :/111 5.11 1,842.99 304,814.00 712.60 -------------------------------------------------------------------------------- Subtotal: 63.36 22,113.84 300,814.00 7:2.60 107 1/ l/15 5.08 1,843.02 302,970.98 717.68 lO!l 2/ l/15 5 . 05 1,843.05 301,12'7.93 722.73 .1C9 31 :t15 •;.o2 1,843.08 299,284.85 727.75 110 Ill l/1!:> 4.99 1,843.11 297,441.74 732.74 111 5/ !/15 4.96 1,843.14 295,598.60 73'7.70 112 6/ l/15 .; .93 1,843.17 293,755.43 742.63 113 7/ 1/15 4. 90 1,943.20 : 5/ 1/17 4. 22 1,843.88 251,353.96 647, "4 6 136 Ei 1/17 .:.19 1,843.91 249,510.05 851.65 137 7/ 1/~7 4.16 1, 84 3. 94 247,666.11 855.81 136 9/ 1/17 4.13 1,643.97 245,822.14 859.94 139 9/ 1/17 1.10 1,844.00 243,978.14 664.04 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 33 of 86 Ir.ter~ - Principal Pri.nci.p.. _ Interest u Cate This Period This Period New Balance To Date 1.4C 10/ 1/17 ·L07 1,84 41 1/llt 3.8e 1,844.22 231,069.25 891.8!: 141 5/ 1il8 3.85 1,BG4.25 229,225.00 895.70 148 61 1/18 3.82 1,844.28 22"1,380.72 89~. 52 149 11 1/18 3.79 1,844.31 225,536. u 903.31 15C 8/ 1/18 3. 76 1,844.34 223,692.07 907.07 1!)1 9/ 1/18 3.73 1,844.37 221,847.70 910.80 152 10/ 1/18 3.70 1,844.40 220,003.30 914.50 153 111 1118 3.67 1,844.43 218,158.87 918.1 i 154 12/ 1/:8 J.E4 1,844.46 216,314.41 921.81 -------------------------------------------------------------------------------- Subtotal: 45.6& 22,131.!34 2:6,314.41 921.81 155 11 1119 J.El 1,844.49 214,469.92 925.42 156 21 1119 3.51 1,844.53 212,625.39 928.99 15·; 3/ 11B 3.54 1,844.56 210,780.83 932.53 158 41 1113 .L51 1,844.59 208,936.24 936.04 15c;t 51 1113 J.4& 1,844.62 207,091.62 939.52 16C 6/ 1/19 .l. 45 1,844.65 205,246.97 942.97 1 61 71 1/19 3.42 1,844.68 203,402.29 946.39 16~ '3/ l/19 ' · ~q 1.,844.71 201,557.58 949.78 l& ",; 9/ 1/19 .l. 36 1,844.74 199,712.84 953.14 164 1:.11 1/13 L33 1,844.77 197,868.07 956.47 l6S. 11/ 1119 3 . 30 1,84 3.24 1,844.86 192,333.58 966.28 166 21 1/2::> :3.21 1,844.89 190,488.69 969.4 9 169 3/ l/2:> .3.17 1,844.93 188,643.76 972.66 17C 4/ 1/2':) ~.H 1,844.96 186,798.80 975.80 0 17l ... . 1-~ 173 174 '51 l/7.::> &I 1/:ZJ 1.1 1/2') 8/ l/20 "1.1] .LC8 3.05 3.02 1,844.99 1,845.02 1,845.05 1,845.08 184,953.81 183,108.79 18:,263.74 179,418.66 976.91 981.99 985.C4 988.06 175 9/ l/20 2.99 1,845.11 177,573.55 991.05 1/6 10/ 1/2::> ;!.96 1,845.14 175,729.41 994.01 177 111 1/20 2.93 1,845.17 173,893.24 9~6.92 22,1!>3.68 :o!>,!>90.29 l,083.b9 .21: 216 -1/. 1/2.; ""' l/24 l . 76 l . 73 :.,946.34 : ,946 . 37 103,743.95 101,897.50 l,oas.45 1, 097.18 21"1' 3/ l /24 1. 70 1,846 . 40 100,051.18 1,068.88 21!1 4/ 1/ 2 4 :.67 :,846.43 98,204.75 1,090.55 219 !>I 1/:.t.: l . 64 :,846 . 46 96,358 , 29 1,092.19 ....... -_ 2~C "') , 6/ 1/2 : ,846.56 1,846.59 : ,846 . 62 l,84ti.65 90,618.72 88,972.13 87,125.51 8:>,278.86 1,096.92 1,098.43 1, 09~. 91 1,1:>1.36 2~6 1~/ 1 / 24 l. 42 :,946.68 83,432.18 1,1:>2.78 -------------------------------------------------------------------------------- Subtotal: 19.09 22,158.11 83,.;32.18 1,102.7:3 =~2-, 1/ 1./7.5 1.~9 :,846.71 81,585.47 1,1:>4.17 2:0:8 ".e. I 1/2!> 1. 36 l ,846.74 79,738.73 1,1.)!'>.'>3 229 3/ 1/25 1.33 1,946.77 77,891.96 1,1:>6.86 2~0 4/ 1/25 1. 30 :,846.80 76,045.16 1,108.16 2.3: 51 1/25 1.27 :,946.83 74,198.33 1,1:>9.43 232 6/ 1/25 1. 24 :,846 . 86 72,351.47 1,110.67 233 -,/ 1/2!'> 1.21 :,946.89 70,504.58 1,111.88 2 .H E/ 1/:t: a.l: 14 . 66 22,16:! . 54 61,:!69.64 ],117.44 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 35 of 86 :nte:.-~t Principal Principa.1.. Interest Date This Period This Period New Balance To Date • 239 1/ 1/2€ ~. 0-' 1,847.08 59,422.56 1,118.46 0 240 241 242 243 2.1 1/:.i!E 3/ 4/ 5/ l/26 1126 1/26 ·: . i:O~ ('.96 0.93 0.90 1,847.11 1,847.14 1,847.17 1,. 847.20 !17,575.45 55,728.31 53,881.14 52,033.94 1,119.45 1,120.41 1,121.34 1,122.24 244 6/ l/26 C.87 1,847.23 50,186.71 1,123.11. 245 1/ l/26 0."84 1,847.26 48,.339.45 1,123.95 246 6/ l/2f G.Sl 1,847.29 46,492.16 1,124.76 2.4 7 9J l/26 (';. 77 1,847.33 44,644.83 1,125.53 248 10/ l/26 C.74 1,847.36 42,797.47 1,126.27 249 11/ l/26 ('.71 1,847.39 40,950.08 1,126.98 250 121 1nt: C.Gil 1,847.42 39,102.66 1,127.66 Subtotal: 10.22 22,166.98 39,102.66 1,127.66 25~ 1/ l/27 0.65 1,847.45 37,255.21 1,128.31 252 21 1/27 (•. 62 1,847.48 35,407.73 1,128.93 253 3/ l/27 0.59 1,847.51 33,560.22 1,129.52 254 4/ :/27 n.so 1,847.54 31,712.68 1,1.30.08 ;.;s!:> ':>/ l/'2"i 0.:03 1,847.57 29,865.11 l,J.l0.61 256 6/ 1/27 C'.5.:l 1,847.60 28,017.51 1,1.31.11 257 7/ 1;2 : 0.•17 1,847.63 26,169·. 88 1,1.31.58 258 8/ l/27 .~ . 44 1,8!17.66 24,322.22 1,132.02 259 9/ 1/27 o:·. 41 1,847.69 22,474.53 1,132.43 260 lCJ/ l/27 o.:n 1,847.73 20,626.90 1,132.80 26: 11/ 1/2 7 0.34 1,847.76 18,779.04 1,133.14 262 12/ 1/27 0.31 1,847.79 16,931.25 1,133.45 ~ub•. ot-a1: 5. 79 22,171.41 16.931.25 1,133.45 2 63 1/ 1/2F. •·1. 2S 1,847.82 15,083.43 1,133.73 264 21 1/28 .:•.25 1,847 . 85 13,235.58 1,133.98 265 31 1/211 0 .22 1,847.88 11,387.70 1,134.20 .266 •1/ 112e 0.19 1,847.91 9, 539.79 1,13 1,848.00 3,995.88 1,1:;4.78 2-:'0 8/ l/2E ~.. . 07 1,848.03 2,147.85 1,1"34.85 271 9/ l/28 0.04 1,848.06 299.79 1,134.89 272 10/ 112e 0.0::> 299.79 o.oo 1,134.83 0 ~ub01,13·1.89 Principal: 500,000.00 Interest: 1,:34.!39 Sett.lngs: 360 A:rr Prel?o·J 1950 :2 perYr 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 36 of 86 I ~ei I ~i~ • .. --·-. . -·+·· · ··--±---·-+ ·-···- 1 ! ----r·-·----- - - - +--- ..,. ---- ' ;- :l ~_,_-~~~LL: f jI .. - l! . . : --~.. - f ... ... 0 1 - t ......... 1 ---+·--·-- I L.L. I ,, . ___,____l--+--.J,.___--+-~ l !I i I . :.·,. ,.~ !. ' ""' I I ,_ J l. ;, t~- -,L~:-~- -;~-----~----· -- - l~ . t. \ ~' ~ ~~ ~ .,.. _)_ ____t - -· ·- ·- -- ~ ~ . ~ 00· - ~ ··- ~- ~ " '' ... . ! "'r ~~ ~t ·- i~ ~ - -....) -~ ·~ ! ·~ '·• ~~ .·.) ....: ,_ I ,._, l:;;o.rter ~ Soc. 60; beill!I ane hundred · ab:'lli five 11nd· 28/l.oo aoree in llarnot Onunty; 'l'axaa, out or tho ~:~•J~>~::·•! n=~1:;:;:/=~~.~~~={·~~~Lu.;!~ ~~~· alfi. :· '\noa . tl 9f B 21~ vra. a do ll ' 8-)/14. l!l 21~ vra. , "l'henoe with the N 1lne o1' the add A. lt. Ae'M':r Bur • . W 71 ~ 9~5 vr• at 11ld on ·the aaid 'II 1.1ne J'rca wb1oh l;h&. lf B oor o1' the aft1d A~ U. lklrr;r Bur II 1'1 B s· 'l'ha Jl, B. cor of tlhe aa1CI.DeJ'Y7 .eUJ"; . 18 . a at 1ll4 Mit. Db ll I..&t'fiG L, Q, 11llq"keCI bra Jl · ' Jl, 19' w. with tbe:W 11ne :S 0 top or· Dlll1'J' at oo:r. o'l'· tbe a Blh'~ · . "' ' .. ~ 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 41 of 86 0 26th, 187.3· . DasSDnlns ·If '71 D i'J"OM the . -vra a at md. br• sl B · 162 vr~. · wbenaD a J... o. '1'h 8 19 E a l.'tr-nob 0 --_· ·') . 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 42 of 86 ..·. · .. -". 0 :..nd Ji:mll'la S7.1vea'bero. deaaaeed, ·tbe unslerutsnod arant:ora be.lj,ob7 con~o7- tnr. unto ~- eranteae bereln and und1v1dad rive-alxtba lSI~ 1nte~aat 1nlthe aboYe deacr1bacJ 1and, the grantoe Ede11 S~1•eater Wade ovn1nc -"'. the- ot.ha~ undclvi-del) one-a1xt.h · (l./bl 1nte~aat t~•~•1n ·a'! one or 1:ho · daY~aaoa ot the A. H • .nd Emma Sy~vaetar, deOaaaad. . '1'0 lli\VP. t.lUl TO l!OLD· !>he above deec~J.'bed pr-1aea, tosathor w1U> · a11 and. •~nAU1ar, tNe rlgbta and' appartenancea thereto ln an~oe · · 'be1~&M;LW..i:% ih~:;ie.~'~:r= W•d• and wi.te lld'eU s-,1nal>or • ·~a-o"";;A.,;.al'r'8~·1.niSfo.o-!l!.,l\:rlt'l• ·_; f$ • .! IIOI!III'dl-. ..; ~ ., . · . ouz"'·l ieJ..rri.'Vexaoutaara · and " adllllnlat~atara. · to'""Wirrariii=... u.a"7u1'·o vor ~:• 9 ·.. Dat'and" a11 . and a.1ngu1ar i the •a,!>:l.d preml.aaa unto 'the· Sil:l.d Qha~l.oa · Otto . Wou!a llld w1t'a B:da11 8'11Yeat:er Wade, t:hei.r heirs and llaalgna asainat ewe~ peraan · whomsoever 1aw~u11y ola~lftR, or to o~D~ the aano, or a.n7 part tbarenf'. · .· But: it: 1a' eapraeal.-, · ~·oed and at1pu1atod that tho Venda~'• Lien and IIUptt,ri.or t1tl.a Are t-eta1.ned ~~~a1nat the AbnVCt aeocr'ibOd J1roport7 pr._laea· and ~rnv.men~a. in tavor at · Man~el Delbert · D71V•oter unt~1 tba abo•• deaorlbed no~o ~d o1~ lnte~eat: thereon are . ru11y paid e."!loo:rdin& to lta .raae und tonor, a.t1'ect a. nd r•adlna,, •hen tlrl.a deed ablll1 \utoDII!a ·nbaolut:a. · Wit:noan our hande . ~t Lampaaaa, 'l'axo•, thla 1st de~ or ~ahua~, J\. n • .1.9S2· · 0 A . ~. 5 .., ,4·.. ··~ 1 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 43 of 86 ( 0 0 j} .1 ~ ....") .. . ;".-....:·, 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 44 of 86 .. ·.. /1 ~ ..~... .:-:· ~ A . .;;\~ES TAB J RR VOL 3 OF 4 AT 14-86 Page 45 of 86 0 0 FILED AND RECORDED e~P:=,_,OI .JWW~ • · ~ te:e1 : 4a Aft FEll: . . . . . . J'•n.t p_..• .,.. County Cl.rk lk.arnet Count.y, Te•ae 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 46 of 86 -,.. I / •• , I .:-> 0 r.tARTIN & ~:·u.tCA~ A-TCRNEYS A-r LA\-'.' ~: :.' E rouRTH STREET LAt.lFAS.4S. TE XAS /r;f)~·· t• I P-101" E I 5.:!: 55;).(,2;;>~. F~v'\ 15~2} :: ( .'3()~'· r-.IS C:DE :.. L \'.'.-'~DE: ·~ ~.'3(r · 2)0i' REDACTED REDACTED l;:couN- NO· ~ 57C7 -0 C. REDACTED REDACTED REDACTED REDACTED STATEMEI\. T NO t : 1 1 • •• • OFFtCE CC:' f"~E~Cl..JCi: v'..·•: -~ ': :... IE".JT _· c• H t Jt~'r ·\ ' ::. .~., '\ 1t·,.., D :·~ PREPARED AND SIGI'.ED W LL PR;;PARED A1.0IJ SIGNED CO~BI!'IATIOI\. c,RECTIVE TO PH'YSICIANS A~O MEDICAL POol. 7·:: oc PREFA~EO AND SIGNED STATUTORY DURABLE PCA 'l'(l ()() PRFPAREIJ AN:J SIGNED 1-PA RELEASE 20 Q(\ 0 re>R C L' RRENT SER'.IICES Rt:NPER!:D TOT~L CURRENT WORK 9/,LA~JCE DUE $0.39Q ~ & MILLICAN US POSTAGE FIRST -CLASS OA~£."1 $ 4'T LA\'{ ~'X3;!UOt)r~73-' :--10 ST f ' CJUnTI1 51 t'tf',E- 7~!)' c • T~X . A.S 7t:'j!;~G-2q I . ' }; ..:·' ' I' 0 TAB J REDACTED RR VOL 3 OF 4 AT 14-86 Page 47 of 86 0 REDACTED REDACTED REDACTEDREDACTED REDACTEDREDACTEDREDACTEDREDACTED REDACTED REDACTED REDACTED REDACTED REDACTEDREDACTEDREDACTED REDACTEDREDACTEDREDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ~ REDACTED REDACTED REDACTED REDACTED 0 REDACTED REDACTED REDACTEDREDACTEDREDACTEDREDACTED REDACTEDREDACTEDREDACTEDREDACTED REDACTED REDACTED REDACTED REDACTED REDACTEDREDACTEDREDACTEDREDACTED REDACTEDREDACTEDREDACTEDREDACTEDREDACTED REDACTED REDACTED Jew000683 0 REDACTED TAB J RR VOL 3 OF 4 AT 14-86 Page 48 of 86 .· 0 REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTEDREDACTEDREDACTEDREDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTEDREDACTEDREDACTED REDACTEDREDACTED REDACTED REDACTED REDACTED REDACTED REDACTEDREDACTEDREDACTEDREDACTED REDACTEDREDACTEDREDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED 0 REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ~- REDACTED REDACTED REDACTED REDACTED 5 0 0 REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED · - REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTEDREDACTEDREDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTEDREDACTEDREDACTEDREDACTED REDACTEDREDACTED REDACTED REDACTED Jew000693 0 TAB J REDACTED RR VOL 3 OF 4 AT 14-86 Page 49 of 86 0 ' REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ·. . • . nsa .fi£ . ._¢=~:~I _, ........, REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED .. . . . . ....; "Lt U.&f' - -.. __ REDACTED ~ ,:~~ ..0~ ~~~=~·~···~~~!J~· - 1.3;f>· SHELDON E . RICHIE 57996.1 EXHIBIT"A" .JC 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 60 of 86 0 J>OCl 1.UJ::,'\'1:'VIlVFOR.'l-IA T/ON REOI/1-..".\'Tfeuments reviewed by you in preparing the Will nfF..Jdl \Vade. -_., 3 J ~ ,.C.~ v-1.~ Definitions: 1. ··You:· as used herein shall refer to Armbrust & Brown. PLLC. and its otlicers. members. re-presentatives. cmployco.:s. agents. and 'or nil other persons actin~! on or purporting to act ('fl it.s t.ehalf. ··Amanda Wade .. us us~d hcrein shall refer h) Amanda \\"adc. her rcprcsentati\cs. agents. and-'nr all uther persons acting on or purporting to act l'ln her bchalt: 3. .. Edell Wade·· as used herdn shall rcf~r tn Edell \Vade, her rqlrt:!>entutivt.-s, ugcnls. ~md/nr all othcr persons acting on nr purpnning hl al~l un her hc:=-half. 4. '"Dot"um~nts·· shall have the: menning intended hy Rules I 92.3(h) and 196 of the Texas Kuks nl Ch il Procedure. includ\!S, by way of illustration only and nN by way of limitation. the following. whether printed or rcpn.,du.:ed by any process. or written or produced by hand, and whether or not claim~d to bo.: privilesed or otherwise excludahlc from discovery. namely: computer H1pes. disks. drums. memory core:c;. hard drh1es or nther Cl>mputer rnn Expl,.. 57998.2 EXHIBrr"A" .JC 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 68 of 86 0 Date: February 6, 2004 Promissory Note rti COPY Borrower: JOHNNY WADE and AMANDA WADE, husband and wife. Borrower's Mailing Addrea: JOHNNY WADE and AMANDA WADE REDACTEDREDACTEDREDACTED REDACTED Riverside County Lender: EDELL WADE Plaee for Payment: REDACTED Lampasas, Burnet County, TX 76550, or any other place that Lender may designate in writing. Principal Amount: $500,000.00 Annuallntereat Rate: Two Percent (2%) Maturity Date: February I, 2036 Annual Interest Rate on Matured, Unpaid Amounts: Twelve Percent (12%} Terms of Payment (priDclpalaad latereat): 0 Aa:rued interest is payable on the 1st day of March, 2004 and on the 111 day of each succeeding month through February 1, 2006. Principal and interest are due and payable in monthly installments of · - ONE THOUSAND EIGHT :m.JNDRED FORTY-EIGHT AND 10/100 DOLLARS ($1 ,848.1 0), each, beginning February 1, 2006, and continuing regularly on the 1"' day of each succeeding month until paid Payments will be applied first to accrued interest and the remainder to reduction of the Principal Amount. Security for Payment: This note is secured by a vendor's lien and superior title retained in a deed from EDELL WADE to Borrower dated of even date herewith and by a deed of trust of even date herewith from JOHNNY WADE and AMANDA WADE to Pat E. Cavness, Trustee, both of which cover the following real property: That certain real property more particularly described on the attached Exhibit ..A". 111323-2 0210412004 0 TAB J REDACTED RR VOL 3 OF 4 AT 14-86 Page 69 of 86 0 Other Security for P ayment: None Borrower promises to pay to the order of Lender the Principal Amount plus interest at the Annual Interest Rate. This note is payable at the Place for Payment and according to the Terms of Payment. All unpaid amounts arc due by the Maturity Date. After maturity, Borrower promises to pay any unpaid principal balance plus interest at the Annual Interest Rate on Matured, Unpaid Amounts. If Borrower defaults in the payment of this note or in the performance of any obligation in any instrument securing or collateral to this note, and the default continues after Lender gives Borrower written notice of the default and ten (10) days opportunity to cure such default. Lender may declare the unpaid principal balance, earned interest, and any other amounts owed on the note immediately due. Borrower and each surety. endorser, and guarantor waive all demand for payment. presentation for payment. notice of intention to accelerate maturity, notice of acceleration of maturity, protest. and notice ofprotest. to the extent permitted by law. · Borrower also promises to pay reasonable attorney's fees and court and other costs if this note is placed in the hands of an attorney to collect or enforce the note. These expenses will bear interest from the date of advance at the Annual Interest Rate on Matured, Unpaid Amounts. Borrower will pay Lender these expenses and interest on demand at the Place for Payment. These expenses and interest will become part of the debt evidenced by the note and will be secured by any security for payment. Prepayment: Borrower may prepay this note in any amount at any time before the Maturity Date without penalty or premium. Applicatioa of Prepayment: Prepayments will be applied to installments on the last maturing principal, and interest on that prepaid principal will immediately cease to accrue. 0 Interest on the debt evidenced by this note will not exceed the maximum rate or amount of nonusurious interest that may be contracted for, taken. reserved. charged, or received under law. Any interest in excess of that maximum amount will be credited on the Principal Amount or, if the Principal Amount has been paid. refunded. On any acceleration or required or permitted prepayment, any excess interest will be canceled automatically as of the acceleration or prepayment or. if the excess interest has already been paid. credited on the Principal Amount or, if the Principal Amount has been paid. refunded. This provision overrides any conflicting provisions in this note and all other instruments concerning the debt. Each Borrower is responsible for all obligations represented by this note. When the context requires. singular nouns and pronouns include the plural. If any provision of this note conflic:L'i with any provision of a loan agreement, deed of trust, or security agreement of the same transaction between Lender and Borrower, the provisions of the deed of trust will govern to the extent of the conflict. 181323-2 0210412004 2 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 70 of 86 0 This note will be construed under the laws of the state of Texas, without regard to choice-of- law rules of any jurisdiction. c A:.'\fANDA WADE 0 181323·2 0210412004 3 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 71 of 86 0 :: -·.. EXHIBIT A . KNOW ALL MEN B'T THESE PRESENTS: COUNTY ~F LAMPASAS I That we, · Manae1 Delbert Sy1vester and Chester Horace Sylvester, in- dividually and as independent executors of the willa and estate3 o~ A. H. Sylvester and wife Emma Sylvester, both deceased, Mi~lie S~lvester wife of Manuel Dalbert Sylvester, Melba S~lvester, ~1te ot Chester Horace s1:-.r, Lenora S-ylvest .. r nutl.Ar, and·hUShAnd Austin M. Bl1t1er star Stewar.t and husband Ivan 111. Stewart, o. ell ;,t\:~el,b or and· in· .conaide.rat:lcn -~r o1''"~the 1ars · to· us in han!i · . · · · Pfl.td · and ' secured ' to , paid ·~ada: and "wi~e· Edel} Sy1veater -Wade' aa follows: · ' ·· ·-- ·· ••· ·•. . , ' 'l'wel.ve ·'l'housand ($12,000.00) Do1lars·•-cash in hand paid, the receipt of ' wh:lch is herebT acknowledged and for which no lien expreaaed or im~~~~etained or shall exist and one promissory Vendor's Lien no~~~~~ 'date herewith given by the sa:ld Charles Otto Wade and wire Edell. ' Sylvester Wade, payab1e at the express reqtlast a:nd ':,direction . o~ _al.l the parties he~eto to Manuel· Delbert Sylvester -or order, due- en or before February l, 1952, with interest ~hereon ~rem maturity nntil. paid at the rate of ' six (6") per cent per annum, said nate being payab1e at Lampasas ·, Texas, and providing fer 'the usua1 Vendor• s Lien and ten per cent attorney's fee cl.auses, and the Vendor's Lien and superior title retained · in this deed to secure,the payment or sa:ld note are hereby trans£erred 'and siRned ·to the said Manuel Delbert ·sy1ves~er, hls heirs and assigns, and the undersigned ~ranters hereby acknowledge that the rull and entire consideration fer this ccnve~ance has been to them and that the•r do not have, hold or claim sny and._pnam1.aaa-c.OA~~·d-Jo.e.-b;;: ~z.a•p·'l;,.eao~n~.,t.a....LJ.ea. title ~ · favor · or said Manuel-o&lbert-s~lvester, his heirs and aasiRns as aforesaid; have Granted, Sold and Conveyed, and by these presents do Grant, Sell. and Convey untcuthe said Charles Ottc Wade and wife Edell Sylvester Wade or Durnet County, Texas, a1l that certain real estate sitQatad in Burnet .county; Texas, and described as fo1lows: · First Tract: West One Quarter or Sec. 60, being one hundred sixty five and 28/100 acres in nurnet County, ToxBs 0 ou~ of the Texas Central ftR1lroad Company Survey, bep,inning at the N. w. 0 cor. or the A. M. Derry Survey, a set stone from which a L 0 bra !T 9~· E 216o acres, be:in~ Survey JTo. 148?, on the waters of M~aquite Cr at tributary o! ·the Lamp~as 'River, ·· about 15-?l- miles Jf 16 E from· Burnet by virtue of an a.ffidavit made before the Clerk of· the County Court or nurnet Cnunty, . December 29~h. 1897, under 'lll.n Act for the benefit or Actual :... . ., \ 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 72 of 86 ., .. ~; ~-=.... . . ~ .\ . ··""· . -~ . ···..... ~: ·. : ..,'" . ~ ': : ..-:; ·. 0 ·.f. ' Occupants o~ Pub1ic lands. approved May 26th, 1873• Be6~n1nc a~ at md . $82 ·vrs. N 19 w . rrom a~po1nt.3bO vrs ·N 71 E ~rom the ;, •.N · w r.or. , of. the Bu~ McCoy a1,1r; "b N 19 . W 9$0 'VT& a at md whenae a . L 0 ~rs N 4?.~ W 250.vrs .a Mesqu1te,bra Si E 162 vrs. · :·;·Thanca s '71 w 200 · vrs a branch 9$0 vrs a at . md whence a L. 0 • .' N 9t E. 216! vr.e do brs ' N 8-J/4 E 219-?t vrs. 'J'h S l.9 E · vrs a branch 950 vr.a o at md, 'l'h N 7.1 E 475 vrs a branch vrs to the pl.aca o~ bo~inn'l.ng, bear1nr,s rnar!ced H. Out or the Thos. w. D1a1r described as :i~1l~~~~§~~~t! ~~~---~A~~~~~!i~M:·;t~~z~:· ·-·- ~ ...•·!·~ .•oert.a:tn ..tract:-~. ·· _..,.•.:? .- ~: Burnet.:coun10y, .. , · ·-···--,in · the ..name ·.of 1t . be~g aria or ' the .· · or1g~a1 corners o.t . aa . or1e;1na1. survey from which·...,_.. L1ve OAk braN 50 w 7$ vra. · Thence s 71 w· 1900 vra to a aeone pi1e rrom ·which a Live Oak bra N . SO W 75'vrs. Thence N 19 W with George Aurt1er•a 11ne 600 ·vrs to a rock md on T. W. Hart's South line rrom Which an E1m bra · s 7 W 51 vra• Th N 71 E a t 100 ~a the Creek, and ot 16oo· vrs. T. W, Hart's s. E. Cor., from which a Me a quite bra N 35 W 20 vrs. and El.JII bra lf 74 E 50 vra. '1'h S 19 E to Mesquite Cr and w1th the meanders or the Creek' ·dowr. to wbe:re the Charl.ea Wilson South 11.ne crosses the•creek and .._. thence South 19 E. with said Wilson 11.na 400 vra. to the cor or :·, · · the same·• 'l'he. S"l9 •E' with the' original l.ina 400 vra to the '- · ·.... ·l .... '=beg1nn1ng·' cor. • · c·onta1nins two hundred' acres, more or less, ' SAVE ·AND EXC~T 40 acrea • more·· il!r 'l.esa • out: or this ·Survey, the said 40 acres being as rollowaz · Bas at · theN W cor. o£ this -Sur. Th about 100 ~arda to and across Mesquite Cr. Th along iiior:-- .· .•., ..,_., theN _l,1ne o;r ~1e.aqu~te .cr • .,.to a.~a,..lt?-U~.t;&,fit..!'--l!hoq.t~~9·-f. eet;. ..b,e1ov~.,.. ~ ... ~ ,. ~-·,·."';! ·~· . ;;,.--"'""'!"p.lilha•·:rook ~al.l.~n • eaii! ' )Jesqu1 ta"'"Cr·•.,..., Thence -across"lr'e sq1.11 te Cr and . ~_· ..s 19 E "about>"·J.OO 'vrs ' to;·thtt ·or1~1na:l S boundary l.ine or this • , . sl.l:rvey, wh1ch l.ost ~amed 40 acres ~ or l.asa ,is hereby :reserved · · .. rrom the . proviaiona " of ..this dead. •· .. , ' _ , · 1 - ·: AI.SO,-' SAVEAND'EXCEPT, 10 acres 1 more or l.eas 1 out of the above n~~med 'l'hoa. 'Blair Sur> as c.onveyed by Ali.ca 111. 9erry and G. L. G~avea and wife, M. H. Graves 'to R. B. F. Berry by deed 0 dated~· J.4, 1909 1 recorded in·Vo1 • . 4B, pg. '95, Deed Recorda 'Burnet County, Texas, descr111ed os .to1lowa: piece, parcel or tract of land out of the Thomas B~air Sur on llleaquite Cr 1n '3urnct County, Texas, descri'bed as 1'oll.ows: a part of the 1.60 acres. of the aaid Thomas B1air Sur conveyed A1l th,.t certain to Al.1ce M. ~erry by J , w. Bl.Ri.r and wl.te by their deed dated l.t ..y 29th, l.903, rooordad in Vol., 40, pn pagea 146-13, of the " Dead Recorda of Bu:rnet Count.y, Texas, to which reference is here made and the said part. herein conveyed ls a11 of the . same Y tho a cove d ascribed prem:lses, toGet'1or with al.l. and sirtr,\ll.ar, tne ri.,;hts and appurtenances thereto i.n anywi sa bal.~i~unto the sa\d Chnrl.ea Otto Wade and w~fo Edel.l Sy1vestr~ •• Wlb>:?ft~J!II 0 ilfta#olii!l~iPFSJI1W.er·~!>~~~.A•zo~7-':"l;l mdl-our~.~~-'!_S, :. oiU"'·he.irs, ' exeoutors and administrators, to "Ne.rrant · and For·ever · Detend.. a1l. and singu1ar the said premises unto · the Sa.id Charl.es Otto ·wade and wif'e Ede11 Sylvester' Wade, their heirs and assi~ns against every person whomsoever 1awtu1ly cl.almine, or to claim the oame, or any port thernof'. · But i t 1.s oxpress1y ~eed and st1pul.ated that the Vendor's Lien and supar1.cr t1.t1o are retained o~ninot the obnve deecrib~d propert7 premises •nd imprnvementa, in ravor or Manuel. Dol.bert Sy~veoter until. the above described note and e11 interest thereon are .f'ull.y paid a~cord\.T1fl to its .race and tenor, o.r.rect and reading, ••hen l.hl.a deed sha11 bename abso1ute. \'lit ,·•as ~;: our hands . at Lampasas, 'l'e,.;ns, this ~st day of :J'.nual"i1• A. D. 1.9S2· t ·-,: . .. .. t: - 0 -t¢ehl'je.~~a THE STA'.l'E OP Tl!!XAS I a,~- ?Ka.z-~_ COUllTY OF'~ Tlj),l'ore nc, t.he undor.,±snod author!.ty. " UntRry Publ. ~. r. ·t n Rnd roriCJIIv ~ Cn~~nt.y, 'l'n~ac, nn t.hl.o J"Cr>rcd 1!:1nuel Dnl.bart S~lvoctor. nnd J.fil11e .">:•1Vo3ter. his w.'. .f'c, hoth !mo,-m to !110 to he the r>crsnn!J '!ll"tose nmne A are s ubscr:1 bed to the r: n:re- no1~ instrument, tondacl:!!Cl\ted ~.,, _ the s ama f'or the purpGisea and consideration ther,.in expressed, l!.nd ~... ........ tfle s a~d Jltil.lie Syl.vester, wire of' the said Manuel. DeJ.?ert !;:•lva!Ste:r ~,.~ ..-,;harlng..··bee,D-• examined b:y me privily and apart l"rom her husband • and hllvin~; hhe 81\1'18 ful.l.y eXJ") B1ned -r,o her, :~he, tl"te · snid t!. i l li., !'>7l.VP.ater na' cnowlodred !!l\ch l nnt.rui'\P.nt tn he her net and deed • and Aha de- · clared thot ohe . had wi111n•: l -;t si-;nnd the snme for the pnr••o::~es and con:~!.de:rot.ton therln ex'!)res:aed, and thnt ohe dtd nnt. wt:;h to re- trar.t i t . flT.VEiT ""!DEn UY JTJ\liD AltO SEAL OJi' Ol'Flr:E, This 26th cloy of January A. D. 1952 • 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 74 of 86 0 TRE STATE OF TEXAS COUNTY OF ifZ.,. .. . De.f'e~re me, the. undersi~!}ed author1ty, a l~Qtary Pu~lic 1.n and ror !?cl .,.;. ;tiS 1 County, Texas, on thi:J dRy !"er:~onally appeared Chrit!•, n notary Puhl!.,. •n and f'n:-o 'J:'o:r.ns, on this day personnll.:_. appe::>••nc'l ,'\us tin Jn. Butler on Lenora s:-lvestar ::IL\tler. h:l.s w1.1'e bot;h !:novln to 11\0 to be .th!l. ·-persons whoee nemes are subscribed tn the roreaoin~ instru~e~t. and acknowled'?=ed to me that tltey each executed the same for the pu:::-- poeee and consideration ther~!n expressed, end the said ~enora Sylveate~ fhttl.er, wi1'e of the :J»id ,1\ustin U. "\utler, havin."; been examined by me priv:l.ly and apart 1'rom h~r husband• and hav:l.n~ the SliJIHt ;Cul.ly explained to her. she, the all.:l.d Lenora Syl.vester Antler acltni)Yil.adt""ed BL\ch instrument to bo her set and dned, and ohe de- 0 cliU'od that she hnd Ylill.in:-;ly signod the same for the purposes find cnnsideration therein expressed, and that she did not wish to re- tract :l.t. OIVT::\f ~''·!D~ }.~ 111\110 A ~10 S11:A!. OI•' OF'J.OiCr.;, Th'ls 20th cla7 of 'Januar,. · . Ao P. l';l;2. ~;... iJ. v, IIAMM1rrr Notary TAE STATE. OF TE"..CAS I • ·..•: .;,i....,COUIITTY' OF~.,.... I :-# ne1'oro bhe undoro:t .• :ned J\1\thor:l.ty, a 1'Jotnry Pl: 1., l:l.c in ancl ror m~, ~~County, Te:oo:oa, on this day personal.l~r ap'!"'eared Ivan 111. S-:.e,.,t\rt, an ~C'Irein ~yl.vAstar Stewnll:'t. h:l.e wit'e hoth 1tnn"'" \:.o me to be the persona Tthn'le nn,es are !!1lb!'lc··tbe., to the roli:'P.~o:l.n!:: ins truMer.t • · and acknowledr,od to me th~t thny each exocutad the ~nme ror the pur- poses ond ce~naiderot: 1 ,n therein e:-:prr::J:lod, anti the s&.!.d t::ore:l.n S:","l.vostcr ~tewart. wit'e o! tho naic1 Ivan M. Sto,Rrt, havin.r-; been exorn1ned tty me pr1 vlly and apart !rom hat> husblmd, and hav i. n~ tho oame fully explained to her, sho, the sa~d Core:l.n Sylvaster Stewart nclmowledP.ed such instrument to be her Ret nnd deed, and she dflcla;r'td that she hnd YlilU.n--;l.::r si ·-nod tho same for the purpooes lind conoideretion therein exprcaacd, and that she did not ~•ieh o;o retract i t . GIVEH lTP'OETI UY HAND J\ND ST~AL OF OFFICE, T h : r s ay of -JanU&J'7'• A. D. 1952. / OI.V.~ S}??.. ~---~ -- ,~ 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 75 of 86 0 • j ·~~ .. .·THE STATE OP TEXAS. •· ~OUR'l'Y . ~P ~'f- ... I : .. ·':; : · _ .· . , .. . ~~ .~e, the undersigned authority, a Nota~ Pub11c, in and 1'or county, Texas, on t.hi.s day persona1l.y appeared 011bert Phi. 1.1 • - and o. Zftl.l. Syl.vester Phil.l.1po 1 ·hi.s \'li1'e, both lmown to - •n 'lfAI. . . . p•JI!PD't ;"~?,.,'!!.._'?~ ~~~J1.~.Ji_\)_...,.J OrH9iJ'!.E;. , i.ns~r~~tl;-7..and· ~olaiow'IirlfgildtO me' ·"tli1lt..--th"'j-"'"eac1i""'ex~.ou:t._d'"tli.e~aii:'Yie ~ :f'or -the ·purposes· and considera-tion there1n expressed, and the saifo o. zall. Sylveater Ph11l.ips, wire or the said Gil.bert Phi111ps, · hav1nB been examined by me privily and apart ·rrom her husband, and having the same fa1ly explained to her, she, the said o. Zel.l Sylvester Phill.ipa acknowl.e~~ed ~uch instrument to be hor act and deed, and she decl.sred that aha had w1l11n~l.y signed the same ror -the purposes and consideration therein expressed, and that she did not wish to retract it. cn:VElT' TTJfDEm L'IY HllHD AND SEAL OF OFFICE, This 26t;hday of .f.li.m:iar;r ·•, A. Do l.C}S2. ~"·~ ~ ~ ~otaryz;mc:J9~ Texas TlfE STA'l'E OF TEXAS COUWl'Y OF ~ a :)'!--:,: -~ :f'or :· .. Del.bert; •r · .~~me, the undera:iGn!d atJ.'bhori.ty, Notar-y Publ.i.c, i.n and . !i'.lofDtxLd~g~•• • -.!2~ - 1i~1s · day·peraonal.l.-;r appeared Manuel. Sy:Lvlt~•:f'T-!tftdllpefttt•n'e executor of the wi. ~l.s and estates of 0 A. H. Sylvester-ana wite Emma Sy1vester, known to me to be the person whose name is subscribed to the foree;oibg 1nstr~,mant, and aclmow1edged to me tho~ he executed tho aame for tho purposes and considerati.o~ expressed therein, and in tho capacity therein stated. r.!VEJJ lJlTDEFI J.iY ll.AJ-TD AliD SEAL OF OFF.ICE, This 2othdny n:t' Janua~.-, A.D. l.$2• ••. ...._,oterpo~y,;aa ~4~ TIIF. ST~'l"~ OF Tl::XII.S I CO'Ul'JTY OF ~ I ......,aorore me, the undersigned authority, a l'Totary Pub11c, in o;and il.; __.- .•. tor~¥ .... County, Texas, an th:is da-y personal.l.y appeared Chester wft~·i6nn,aoa: , yl.v~st~2", .'' 1na.1v.1.dua~l.;y · and .. as :independent executor . or the w 11l.a nnd ' ost~t OJ•Fir.E, Th1a .26.t.l>_dGy at: January . •, A. D. ~953. /-t_. ·';: .,.."> ..:: \ 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 83 of 86 ( 0 0 0 TAB J RR VOL 3 OF 4 AT 14-86 Page 84 of 86 ·. : .'\..,ES TAB J RR VOL 3 OF 4 AT 14-86 Page 85 of 86 1 C E R T I F I C A T E 2 STATE OF TEXAS 3 COUNTY OF BURNET 4 I, VICKI K. KANEWSKE, Official Court Reporter in 5 and for the County Court at Law of Burnet, Burnet 6 County, State of Texas, do hereby certify that the above 7 and foregoing contains a true and correct transcription 8 of all portions of evidence and other proceedings 9 requested by counsel to be included in this volume of 10 the Reporter's Record in the above-styled and numbered 11 cause, all of which occurred in open court or in 12 chambers and were reported by me. 13 I further certify that this Reporter's Record of 14 the proceedings truly and correctly reflects the 15 exhibits, if any, offered by the respective parties. 16 I further certify that the total cost for the 17 preparation of this Reporter's Record is $834 and has 18 been paid for by Mr. Don Richie, Attorney at Law. 19 GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 3rd 20 day of March, 2015. 21 /s/Vicki K. Kanewske 22 VICKI K. KANEWSKE, TEXAS CSR NO: 2159; EXPIRES: 12-31-16 23 Official Court Reporter, Burnet County Court at Law 24 220 S. Pierce, Burnet, Texas 78611 25 512-715-5244; Fax: 512-715-5226; Email Vkaykan@live.com 3 TAB J RR VOL 3 OF 4 AT 14-86 Page 86 of 86 03-15-00100-CV 1 Supplemental REPORTER'S RECORD 2 VOLUME 2 OF 6 VOLUMES FILED IN 3rd COURT OF APPEALS 3 CAUSE NO: P9127/COURT OF APPEALS NO: 03-15-00100-CV AUSTIN, TEXAS 5/14/2015 2:20:39 PM 4 IN THE MATTER OF ) IN THE COUNTY COURT JEFFREY D. KYLE Clerk 5 THE ESTATE OF ) AT LAW 6 EDELL WADE ) BURNET COUNTY, TEXAS 7 8 9 10 11 12 13 EXCERPT TRIAL TESTIMONY OF 14 NANCY BURNS AND MICHAEL MARTIN 15 16 17 18 19 On the 30th day of September, 2014, the 20 following proceedings came on to be held in the 21 above-titled and numbered cause before the HONORABLE 22 RANDY SAVAGE, Judge presiding, held in Burnet, Burnet 23 County, Texas. 24 Proceedings reported by computerized stenotype 25 machine. 1 1 A P P E A R A N C E S 2 RICHIE & GUERINGER, P.C. 3 100 Congress Avenue, Suite 1750 4 Austin, Texas 78701 5 512-236-9220 6 BY: MR. DON RICHIE 7 MS. EMILY SEIKEL 8 APPEARING ON BEHALF OF JAMES(BUD)WADE 9 10 LAW OFFICE OF DON E. WALDEN 11 7200 North Mopac, Suite 300 12 Austin, Texas 78731 13 512-349-9595 14 BY: MR. DON E. WALDEN 15 APPEARING ON BEHALF OF NANCY BURNS 16 17 GRAVES DOUGHERTY HEARON & MOODY 18 401 Congress Avenue, Suite 2200 19 Austin, Texas 78701 20 512-480-5600 21 BY: MS. KATHRYN ALLEN 22 AND 23 24 25 2 1 A P P E A R A N C E S C O N T ' D 2 STUBBS LAW OFFICE, PLLC 3 202 N. Porter Street 4 Lampasas, Texas 76550 5 512-556-8970 6 BY: MR. EVAN STUBBS 7 APPEARING ON BEHALF OF JOHNNY WADE AND AMANDA 8 WADE, INDIVIDUALLY 9 10 HILL, DUCLOUX, CARNES & DE LA GARZA 11 400 West 15th Street 12 Suite 808 13 Austin, Texas 78701 14 512-474-7054 15 BY: MR. CLAUDE DUCLOUX 16 APPEARING ON BEHALF OF AMANDA WADE, EXECUTOR 17 18 19 20 21 22 23 24 25 3 1 REPORTER'S RECORD 2 VOLUME 2 OF 6 VOLUMES 3 CHRONOLOGICAL INDEX 4 PLAINTIFF'S WITNESSES: 5 NAME: Dir Cross Redir Recross Vol 6 Nancy Burns 7,35 2 7 Michael Martin 78,109 115,129 2 8 DEFENDANT'S WITNESSES: 9 NAME: Dir Cross Redir Recross Vol 10 11 Court Reporter's Certificate Page 131 2 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 REPORTER'S RECORD 2 VOLUME 2 OF 6 VOLUMES 3 ALPHABETICAL INDEX 4 WITNESSES: Dir Cross Redir Recross Vol 5 Nancy Burns 7,35 2 6 Michael Martin 78,109 115,129 2 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 1 REPORTER'S RECORD 2 VOLUME 2 OF 6 VOLUMES 3 EXHIBIT INDEX 4 PLAINTIFF'S EXHIBITS: 5 No: Description Offered Rec'd Vol 6 87 Safe deposit box lease 127 127 2 7 8 DEFENDANT'S EXHIBITS: 9 No: Description Offered Rec'd Vol 10 2 Copy of check 26 26 2 11 3 Handwritten will 36 37 2 12 4 Copies of bank information 44 44 2 13 5 Copies of checks to Nancy 77 77 2 14 6 Invoices from Bill & Nancy 77 77 2 15 7 Receipts from Edell Wade 77 77 2 16 8 Copies of checks to Weldon 110 110 2 17 9 order approving first inventory 111 111 2 18 10 Order approving 1st amended inventory 111 111 2 19 20 21 22 23 24 25 6 1 ****** 2 MICHAEL MARTIN 3 Having been previously sworn, testified as follows: 4 CROSS EXAMINATION 5 BY MR. STUBBS: 6 Q Mr. Martin, you said you've been practicing 7 law for 44 years; is that right? 8 A Well, I would say 42 probably. 9 Q And during that time frame how many files do 10 you think you've dealt with? 11 A Several thousand of them, I'm sure. 12 Q I mean, by several thousand, we're talking 16, 13 17, 18,000, something like that? 14 A I would guess. 15 Q Okay. How many people worked for you when it 16 was you and Pat Millican when it was Martin & Millican? 17 A We had three secretaries. 18 Q And did you also have a title company? 19 A Yes. 20 Q Were there also employees at the title 21 company? 22 A Like two or three normally there. 23 Q But how is it that you don't remember every 24 single conversation that you've had with everybody who 25 came in your office? 78 1 A I'm getting awful old. 2 Q My point is on a regular week did you deal 3 with one file individually and that was it, or did you 4 have a busy practice? 5 A I was just a typical small town practitioner 6 doing everything that came in the door, and we were 7 busy. 8 Q And I think from all of this three or four 9 hours of testimony it all really boils down to one 10 question, and that is were you in cahoots with Johnny 11 and Amanda Wade to somehow try to take money or take 12 land or take advantage of Edell Wade? 13 A No. 14 Q In your 42 years of practice, were you ever 15 sanctioned by the State Bar for anything unethical? 16 A No. 17 Q And obviously in 42 years of practice if you 18 had done something such as trying to work with one 19 client to embezzle something or take advantage of 20 another client, that would be where the complaint would 21 go; wouldn't it? 22 MR. RICHIE: Your Honor, I'm going to 23 object. We've not sued Mr. Martin or suggested that he 24 embezzled anything. It's just irrelevant. 25 MR. STUBBS: Well, they spent three hours 79 1 on him trying to -- 2 THE COURT: I'm going to overrule the 3 objection and let him answer. 4 A Could you repeat that? 5 Q (By Mr. Stubbs) In your 42 years of practice, 6 had you ever tried to conspire with a client to embezzle 7 or take advantage of some other client, the 8 State Bar would be where that complaint would be filed? 9 A Correct. 10 Q And in your 42 years you have never been 11 sanctioned for anything unethical, correct? 12 A That's correct. 13 Q Now, if we start with this $80,000 in the safe 14 deposit box, are you familiar with the way certain 15 accounts at institutions can be held? 16 A I think so. 17 Q And by that what I'm getting at is you can 18 have an account that is solely owned by one person, it 19 can be held as a pay on death beneficiary or it can be 20 held with the rights of survivorship? 21 A Correct. 22 Q And in the event of this safe deposit box that 23 is at issue, do you know how it was held? 24 A No, I don't. 25 Q Okay. If it were held with a right of 80 1 survivorship to Johnny Wade, then would there be any 2 obligation for him to turn that money over as an estate 3 asset? 4 A No. 5 Q So with that right of survivorship, then upon 6 Edell's passing the contents of that safe deposit box 7 became his sole property; didn't it? 8 A I would agree. 9 Q If the safe deposit box was held as joint 10 tenants can you tell this jury what that means? 11 A I would call it co-ownership. Two persons 12 having equal ownership of one account. 13 Q So was that the -- would that have the same 14 effect upon her passing if it were joint tenants? 15 A No. If it's not with survivorship I'd say no. 16 Q But if it did have the right of survivorship 17 it would be the same? 18 A It would. 19 Q Okay. Now, recently you were asked some 20 questions about a life estate and whether or not a life 21 estate is enforceable and so forth. And I believe that 22 Mr. Richie showed you what's been marked as Plaintiff's 23 Exhibit No. 5. Do you still have that up there? 24 A I do. 25 Q And under number 2, does that seem to be clear 81 1 to you that there was an intention for Edell Wade to 2 have a right of survivor -- I'm sorry. To have a life 3 estate or effectively the ability to remain in her home 4 until she passed away? 5 A Yes. 6 Q Even though she was selling, I'm going to say 7 the ranch, this appears to show that there was a meeting 8 of the minds that she could stay in her house until she 9 passed away? 10 A Yes. 11 Q Now, do you know where she lived when she 12 passed away? 13 A No, I don't. 14 Q Are you aware of any time when Johnny or 15 Amanda Wade tried to force her off of that property? 16 A No. 17 Q If the evidence in this case showed that she 18 actually passed away in her bedroom in her house and was 19 Star Flighted back simply so she could, would that 20 surprise you? 21 A No. 22 Q So all this question about whether it was a 23 life estate or not, if she never was asked to leave her 24 property and in fact passed away in her own bedroom, 25 it's really just smoke and mirrors; isn't it? 82 1 A I would think. 2 Q You were asked a bunch of questions about 3 various documents and whatnot, and the effect of that 4 was to make some implication that Amanda Wade abused the 5 power of attorney that she held for Edell Wade. Do you 6 recall those questions? 7 A I do. 8 Q To the best of your knowledge did she ever use 9 that power of attorney in any way? 10 A I wouldn't have any way of knowing. Nothing 11 came to my attention. 12 Q Well, in the modification that Mr. Richie 13 would ask you all these questions about, she didn't go 14 in and sign it on behalf of Edell wade; did she? 15 A Oh, no. 16 Q On the power of attorney, the various power of 17 attorney documents, she never went in and signed 18 granting someone else somehow or on behalf of Edell 19 Wade; did she? 20 A No. 21 Q As far as going back to the question about the 22 life estate, you were kind of led into questions to 23 imply that Johnny Wade or Amanda Wade could have then 24 sold that ranch but in that let's just assume that 25 Johnny or Amanda or both were trying to sell that ranch 83 1 while Edell were still living, Johnny and Amanda would 2 have been aware that there was this agreement for a life 3 estate, correct? 4 A Correct. 5 Q So they could not have signed off on a 6 contract saying there were no liens, no tenants and so 7 forth on the property, could they, to enter into a 8 contract to sell it? 9 A Well, with Mrs. Wade living in her house, 10 practically I can't see how you could do that. 11 Q So again just smoke and mirrors? 12 A I would agree. 13 Q In your representation of Edell Wade in doing 14 her will, power of attorney, HIPAA documents and the 15 modification, was it ever your understanding that you 16 were representing anyone other than Edell Wade? 17 A No. 18 Q Now, I don't know if Mr. Richie has ever 19 practiced law in a small town, but you said at the 20 beginning that you have represented whatever walks in 21 the door. You mentioned criminal cases for instance. 22 So in representing criminal cases you have somebody 23 that's 17, 18 years old. Is it odd for them to come in 24 with a relative? 25 A No. 84 1 Q Is it odd for you to put the contact 2 information for that relative in your file? 3 A Certainly not. 4 Q Is it odd for you to send the bill to the 5 relative? 6 A No. 7 Q Is it odd for you to send correspondence to 8 the relative? 9 A No. Especially criminals frequently don't 10 have an address you can use anyway. 11 Q Sure. Now, does any of that change who your 12 actual client is? 13 A No. 14 Q So just because you're talking to a parent or 15 a grandparent and you're calling the parent or the 16 grandparent and you're sending the correspondence to the 17 parent or the grandparent, your client is still the kid, 18 right? 19 A Of course. 20 Q And isn't that similar to a situation to where 21 you may be doing work for someone who is older? 22 A Very common to be in that situation. 23 Q So if we're dealing with someone who's 80 24 years old or above and they live on the same property 25 with the child, or a grandchild for that matter, would 85 1 it be uncommon for you to have that child or 2 grandchild's contact information in your file? 3 A No. 4 Q Would it be odd for you to deliver the 5 documents to the child or grandchild? 6 A No. 7 Q Would it be odd for you to contact or have 8 communications with that child or grandchild? 9 A No. 10 Q Would it be odd for you to send the bill to 11 the child or grandchild? 12 A No. 13 Q Does any of that change the fact that the 14 older person involved is actually your client? 15 A Not in my opinion. 16 Q And at the end of the day, and upon his 17 question and you agreed, that you as the attorney had a 18 fiduciary duty to Edell Wade? 19 A Yes. 20 Q And can you explain to this jury what that 21 means, what your duty was for Edell Wade? 22 A Well, I think I owed her a duty to look out 23 for her business just plainly stated, and, you know, if 24 I thought someone was trying to take advantage of her, 25 I think I would have needed to have told her and would 86 1 have. 2 Q In this instance did you ever tell her that 3 you thought someone was trying to take advantage of her? 4 A No. 5 Q Now, as far as all these documents and all 6 these questions about how we came up with the number and 7 where the interest came from or whatnot, your file 8 clearly shows that you had communication with Lori 9 Graham, correct? 10 A Right. 11 Q And in your file I believe you have some line 12 items where you say, Communication with client. And 13 then separate from that you have some lines that say, 14 Communication with Amanda. Right? 15 A Yes. 16 Q That distinction of having lines that say, 17 Communication with client, versus lines that say, 18 Communication with Amanda, would show that you never 19 viewed Amanda as your client in that case, right? 20 A True. 21 Q And in your drafting of the documents does it 22 really matter who communicates numbers to you? 23 A No. It looked like to me that it was kind of 24 a joint project so I wasn't particularly concerned 25 knowing that they were going to get to read it over and 87 1 come sign it, and if either side didn't like it they had 2 every opportunity to say so. 3 Q Now, obviously you can't represent both sides 4 in that, right? 5 A Correct. 6 Q And were you ever representing both sides? 7 A I felt like I was representing Edell Wade. 8 Q Okay. Now, in your 42 years of practice how 9 odd is it for an older person to just flat give property 10 to a kid? 11 A It's quite common. 12 Q And so in fact, I mean the numbers really 13 don't even matter, do they? 14 A Well, I could tell they had a close enough 15 relationship that I didn't think anyone was trying to 16 get it down to the gnat's ear and would have been 17 surprised if they were. I really didn't know what was 18 going on. It changed two or three times. I really 19 didn't know and hoped that with the accountant they 20 would work it out to where everybody was happy and the 21 IRS hopefully would be happy. 22 Q I'm sorry. Go ahead. 23 A And I didn't see any particular reason for me 24 to get into that discussion especially in a family deal. 25 I didn't imagine they wanted my input. 88 1 Q Is your job as a lawyer, when somebody comes 2 into your office, is your job to tell people what other 3 people normally do or is your job to do what they want? 4 A I think it's to do what they want. Nobody 5 asked me should they do it. They came and said they're 6 doing it. 7 Q Have you ever drafted a will that left 8 property to a charity? 9 A Sure. 10 Q Have you ever drafted a will that left 11 property to a charity or excluded a child? 12 A Yes. 13 Q Is it your job to tell them they can't exclude 14 a child? 15 A No. 16 Q Is it your job to tell them they need to leave 17 their property to one child or another? 18 A No. 19 Q Is it your job to tell them that they need to 20 charge interest or that they need to not reduce 21 principal? 22 A No. And the only reason I would discuss the 23 interest is like I would want them to be aware that the 24 IRS may penalize them. 25 Q Right. And then you were asked questions 89 1 about 1099s and you were asked questions about estate 2 tax returns and those sorts of things. Do you generally 3 send out 1099s? 4 A I never do. 5 Q Never have? 6 A Never. 7 Q Do you generally file estate tax returns? 8 A We did file estate tax returns, yes. 9 Q Is that something that you require any time 10 you have some sort of transaction that might involve an 11 estate tax return? 12 A Is what required? 13 Q Well, what I'm saying is if somebody comes in 14 and they want to do any type of transaction, I mean, 15 you're not under any duty to file their estate tax 16 return; are you? 17 A Oh, no. 18 Q Okay. Ultimately that decision is left up to 19 the client, isn't it; whether or not they file an estate 20 tax return? 21 A Well, yeah. I mean, you may be obligated by 22 law to file one but whether they actually do it, they 23 don't want to do it, that's kind of their business. 24 Q Right. That's my point. You're not, as the 25 attorney, obligated to do anything? 90 1 A No. 2 Q And so sometimes you have people who you tell 3 them this may be an estate tax or a gift tax event, but 4 ultimately they're the ones who decide whether or not 5 they're going to file a return? 6 A Correct. 7 Q And if we pare this down, I mean, you worked 8 for Edell Wade starting back in 2007, correct? 9 A Correct. 10 Q So you doing the modification wasn't like the 11 first time you ever met her, right? 12 A No. 13 Q And I believe you said earlier she was clearly 14 lucid? 15 A Yes. 16 Q Or very lucid or something along those lines? 17 A Yes, sir. 18 Q Didn't have any concerns that she was under 19 duress? 20 A No. 21 Q Didn't have any concerns that she was out of 22 her right mind? 23 A Not at all. 24 Q Didn't have any concerns that she wasn't doing 25 exactly what she wanted to do? 91 1 A No concern at all. 2 Q In fact, if you did, based on what you told 3 this jury about your fiduciary duty you wouldn't have 4 participated; would you? 5 A That's true. 6 Q You had an active practice, right? 7 A I did. 8 Q Did you need her $200 or $300 to make ends 9 meet? 10 A No. And certainly don't want to get involved 11 in a squabble like that for some pittance. 12 Q So any of your communications, whether they 13 were with Lori Graham, Amanda Wade, Edell Wade, Johnny 14 Wade, no matter who relayed the information you always 15 felt like what you were doing was what Edell wanted, 16 correct? 17 A That's correct. 18 Q Because she was your client? 19 A Right. 20 Q Now, you were asked some questions about 21 paragraph 25 of the prior power of attorney that Edell 22 gave to Nancy, and I believe it had something about 23 talking to some of the other siblings? 24 A Yes. 25 Q Now, at the time that was entered Johnny and 92 1 Amanda still lived in California; didn't they? 2 A I really don't know. 3 Q If I -- 4 A I assume so. My vague recollection of when 5 they came back I believe it was right. 6 Q Couldn't you also gain from that that Edell 7 really didn't trust Nancy and that she wanted her to 8 communicate with the others because she didn't have full 9 trust in her? 10 MR. RICHIE: Your Honor, objection. 11 Calls for speculation. 12 THE COURT: If you know from discussions 13 with your client you may answer that question. If you 14 don't, then I'll sustain the objection. 15 A I don't have any knowledge of that. 16 THE COURT: All right. I'll sustain the 17 objection. 18 Q (By Mr. Stubbs) As far as the sale of the 19 ranch is it your understanding that Edell was the owner 20 of that property whenever the sale took place? 21 A Yes. 22 Q She wasn't a co-owner; was she? 23 A Not to my knowledge. 24 Q And at that time did any of her kids have any 25 legal interest in that property? 93 1 A I don't believe so. 2 Q So had she, instead of selling it to one of 3 her kids and keeping it in the family, had she decided 4 to sell it to the neighbor, could she have done that? 5 A Sure. 6 Q Did she have to get permission from her kids? 7 A No. 8 Q Did she have to tell the kids? 9 A No. 10 Q Did the kids have any say in what the terms 11 would be? 12 A No. 13 Q She could have sold it for cash. She could 14 have sold it on a note. She could have just given it to 15 the neighbor; couldn't she? 16 A True. 17 Q You were asked some questions about the 18 various powers of attorney and one was filed and one 19 wasn't filed, whatnot. There's no legal requirement 20 that a power of attorney be filed; is there? 21 A That's correct. 22 Q And you can file one of record if you choose 23 to, but you don't have to, correct? 24 A Right. 25 Q All these questions about whether or not you 94 1 communicated directly with Edell while the documents 2 were being proven up, you ultimately were perfectly 3 comfortable that she knew what the documents said, she 4 knew what the documents meant and it was what she wanted 5 to do when she signed them, correct? 6 A That's true. 7 Q Now, Mr. Richie made a big deal about, Well, I 8 just got this file today and so forth. I believe that 9 he requested to take your deposition back in May. Does 10 that sound accurate? 11 A It does. 12 Q And in his request we made the legal decision 13 that we felt like he was asking for stuff outside what 14 all was allowed. And ultimately we filed a motion for a 15 protective order. 16 MR. RICHIE: Your Honor, can we approach? 17 THE COURT: Yes. 18 (The following was in the presence but 19 out of the hearing of the jury.) 20 MR. RICHIE: This is a clear violation of 21 the motion in limine. We're not supposed to talk about 22 motions with the Court and orders from the Court. They 23 never set their motion for protection. I never got an 24 order. 25 THE COURT: Well, the door was open when 95 1 you asked this lawyer certain questions about the file 2 and not being able to receive the information he was 3 instructed not to deliver. I think they have the right 4 to cross examine. 5 MR. RICHIE: Sure. 6 (The following was in the presence 7 and hearing of the jury.) 8 Q (By Mr. Stubbs) Mr. Martin, what I was talking 9 about was back in May when Mr. Richie asked to take your 10 deposition and he sent you documents telling you that 11 you had to come to the deposition and you had to bring a 12 bunch of stuff with you. Now, in that we felt like he 13 was asking for more than what was allowed, and we filed 14 what is called a motion for protective order. And do 15 you remember getting a copy of that? 16 A I'm not sure. 17 Q Okay. Well, I'll just represent to you that 18 we did file that motion. 19 A Okay. 20 Q And my recollection prior to you going to the 21 deposition was that I did not want you to take any of 22 Johnny and Amanda's personal files and I believe that 23 Ms. Allen was there as well. Is that in line with your 24 recollection for the most part? 25 A Yes. 96 1 Q And so I believe also in your deposition you 2 were very clear with Mr. Richie and you said you would 3 be happy to produce it with a Court order, referring to 4 various documents? 5 A Yes. 6 Q Do you possess that memory? 7 A Yes. 8 Q Did you ever receive anything from Mr. 9 Richie's office after that time? 10 A Not to my recollection. 11 Q Is it possible that you had some confusion 12 about what you were supposed to bring and what you 13 weren't supposed to bring 14 A Certainly possible 15 Q But obviously at that time you still had an 16 attorney/client privilege with Johnny and Amanda Wade as 17 for work you did for them, correct? 18 A Yes. 19 Q And you still had an attorney/client privilege 20 with Edell Wade or the Estate of Edell Wade, correct, 21 for the work that you had done for Edell? 22 A Well, she was dead. So I don't know that I 23 had it with Edell, but I would have with the estate I 24 guess. 25 Q Well, if I came in and asked you about someone 97 1 that you had done work for who has now passed away, I 2 can't just come in and look at your file; can I? 3 A No. 4 Q I mean, there's still some level of privilege 5 there where you're not authorized to just release that 6 information, right? 7 A Right. 8 Q You were asked something about some documents 9 previously being sent to the County Road address where 10 Edell and Johnny and Amanda lived and then later some 11 documents went to the hardware store address? 12 A Yes. 13 Q Because someone had run over their mailbox? 14 A Could be. 15 Q Well, if the evidence showed that someone ran 16 over their mailbox -- 17 A Certainly possible. 18 Q And I mean there wasn't anything egregious or 19 evil about trying to send that to the hardware store, 20 was it? 21 A No. I just wanted to be sure that she got it. 22 Q And you knew that Johnny and/or Amanda would 23 make sure she did? 24 A Right. I knew where I could find them. 25 Q Then you were asked some questions about some 98 1 paragraphs in some various documents and I believe you 2 mentioned to Mr. Richie that you thought those might be 3 Pro Doc forms. Can you tell this jury what Pro Doc 4 forms are? 5 A It's a computerized set of legal documents 6 that was promulgated by a company here for use on 7 computers where you can insert different names, 8 addresses, et cetera, et cetera, just kind of streamline 9 preparation of documents. 10 Q In effect are those just standardized forms 11 for the most part? 12 A Yes. 13 Q So when you use standardized forms in your 42 14 years of practice have you ever inadvertently left a 15 paragraph in that didn't apply? 16 A Well, many, many times there are many 17 paragraphs that don't apply that nobody much worries 18 about because it's more trouble to take them out than to 19 leave them in, as long as they're not harmful. 20 Q Have you ever inadvertently had a paragraph 21 that didn't get into the document even though you 22 intended it to? 23 A Yes. 24 Q You were asked some questions about your 25 amortization schedule and I still don't know what 99 1 they're trying to make a point with on that, but your 2 amortization schedule doesn't have -- did not take into 3 account the $150,000 payment that was made by Johnny and 4 Amanda; did it? 5 A No, and I don't know that I knew about that. 6 I don't know that they mentioned it. And I might say on 7 the amortization schedule I probably told my secretary, 8 Take this note and go run an amortization schedule on 9 it, without much other input just to give me a place to 10 kind of start. So I didn't intend for it to be a 11 finished product. 12 Q It wasn't any part of a thought-out scheme to 13 try to deceive anybody; was it? 14 A No. 15 Q In fact, the loan date was 2004 instead of 16 2006, and it didn't include the zero percent interest 17 for a period of time? 18 A I'm sure my secretary did the best she could. 19 That's what I got back. 20 Q Okay. Along those lines I think I understood 21 your testimony to be when we were trying to figure out 22 what the correct principal amount was for the 23 modification, it could have been any number that got put 24 in there so long as Edell agreed to it, right? 25 A Yes. 100 1 Q And so long as that's what she wanted? 2 A Correct. 3 Q And I believe your notes show that you had 4 multiple communication with Lori Graham, and Mr. Richie 5 is trying to say that didn't happen. 6 A Yes, sir. 7 Q And are you comfortable that you talked to 8 Lori Graham? 9 A Oh, I know I talked to Lori Graham. 10 Q If you have an older person who wants to give 11 property to just -- an easiest example is a child. 12 Wouldn't it be proper to simply say there's no benefit 13 to the older person; is there? 14 A Well, emotional benefit is the benefit I would 15 see. 16 Q So there is clearly a difference between a 17 financial benefit and an emotional benefit? 18 A Certainly. 19 Q And in your 42 years of practice is it odd for 20 someone to give up a financial benefit in exchange for 21 the emotional benefit of knowing they're helping their 22 kid? 23 A No. 24 Q Happens every day? 25 A Happens every day. 101 1 Q You were asked these questions about the 2 actual probate of the will and Mr. Richie tried to imply 3 that somehow you had done something wrong, although he 4 said, No, I'm not saying you did anything wrong. The 5 fact is there is no legal requirement to send anyone 6 notice that you filed an application to probate a will; 7 is there? 8 A There is not. 9 Q Can you tell the jury what happens, just as a 10 general sense, when -- if I come in your office and I 11 say, My dad passed away. Can you tell the jury just 12 logistically how that process starts? 13 A Well, initially we would do an application to 14 probate, get it signed by the person who is the 15 applicant, usually also the executor. We would 16 accompany that with a check, send it and the original 17 will and the application to the County Clerk. In this 18 instance, Burnet County. The Clerk would post notice on 19 the county bulletin board that an application for 20 probate had been filed. In roughly two weeks there 21 would be a probate hearing, which is usually a very 22 simple, brief matter where the Court hears testimony 23 about when the decedent died, where they died and so 24 forth. The Court usually then signs the order on the 25 same day. The Clerk files it. We send out notices to 102 1 the beneficiaries to notify them that they are a 2 beneficiary. We then work on the inventory, usually get 3 with the executor and find out what property the 4 decedent owned, what it's worth. Usually some back and 5 forth about the value of properties and that sort of 6 thing. 7 Once we've got that nailed down, within at least 90 8 days you're supposed to file the inventory, get that 9 signed by the executor, send it to the Burnet County 10 Clerk, in this instance with an order. The Court will 11 review it, sign the order usually approving the 12 inventory. Once that's done you go about paying any 13 debts that are outstanding. And frequently with elderly 14 folks like this, there are not debts. Would then go 15 about distributing the assets to the beneficiaries of 16 the will. And once all of that is done, we typically 17 would get a release from the beneficiaries that they've 18 been paid their proper amount and they were happy with 19 it. And that would be the end of the process. 20 Q So all the questions you were asked, you 21 didn't send notice. Nowhere in the legal requirements 22 is it that you're -- I mean, you're not supposed to send 23 notice; are you? 24 A Well, nothing requires it and we hardly ever 25 did, although I would frequently ask an executor, you 103 1 know, do you want me to write Uncle Bill and tell him he 2 got the car, or you know, if they said yes, I did. If 3 they said no, I didn't. 4 Q And ultimately right after Amanda was 5 appointed as the executrix of this estate you notified 6 everyone just as you normally would, correct? 7 A Right. 8 Q You did everything just the same as you would 9 if I came in or anybody else came in? 10 A That's true. 11 Q Now, as far as that document goes, that will, 12 it had in it an in terrorem clause. Are you familiar 13 with that? 14 A I am. 15 Q Will you tell this jury what an in terrorem 16 clause is? 17 A Well, it's a clause that people sometimes 18 insert to disinherit anyone who contests the will. Some 19 folks are concerned that one of their children, kinfolk, 20 whoever is a beneficiary, will be unhappy with the will 21 and will want to contest it on whatever grounds, and the 22 in terrorem clause -- 23 MR. RICHIE: Let me interrupt. I'm 24 sorry, Mr. Martin. 25 May we approach, Your Honor? 104 1 (The following was in the presence but 2 out of the hearing of the jury.) 3 MR. RICHIE: I'm going to object to him 4 asking this witness about an in terrorem clause and 5 interpreting it when this was already ruled on summary 6 judgment that the in terrorem clause is not implicated 7 in this matter in any way, shape or form. 8 MR. DUCLOUX: That wasn't the ruling. 9 MR. RICHIE: It was. He granted summary 10 judgment. 11 MR. DUCLOUX: Yeah. He denied summary 12 judgment, so -- 13 MR. RICHIE: Excuse me, you're right. 14 MR. DUCLOUX: We're allowed to have him 15 explain it. He was used as an expert. We're just 16 explaining what it [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4072163. Public record. Not legal advice.