in Re Carlton Sewell

Opinion

ACCEPTED

06-15-00032-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS 6/25/2015 11:10:59 AM

DEBBIE AUTREY

CLERK

No._________________________ FILED IN

6th COURT OF APPEALS

TEXARKANA, TEXAS

In the Court of Appeals 6/25/2015 11:10:59 AM DEBBIE AUTREY

Sixth Judicial District Clerk

Texarkana, Texas

In re CARLTON SEWELL, Relator

Original Proceeding from the County Court at Law of Hopkins County, Texas

______________________________________________________________________________

PETITION FOR WRIT OF MANDAMUS

J. Brad McCampbell Attorney for Relator State Bar No. 13358000 CURTIS, ALEXANDER & McCAMPBELL, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 Telephone: (903)473-2297 Facsimile: (903)473-3069 bmccampbell@cammpclaw.com

ORAL ARGUMENT REQUESTED

Identity of Parties and Counsel The following is a list of all parties and all counsel in this matter:

RELATOR in this matter is Carlton Sewell and he is a Proponent/Contestant in the

underlying case. The attorney representing Relator is:

J. Brad McCampbell CURTIS, ALEXANDER & McCAMPBELL, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440

RESPONDENT in this matter is the Honorable Amy Smith, Judge of the County Court at

Law of Hopkins County, Texas.

THE REAL PARTIES IN INTEREST in this case are Janet Neal Stanley, Applicant, and

Contestants, Truitt Sewell, Sue Neal, Melanie Wells, Robert Wells, Harold Wells, Tracy Wright,

Cynthia Terrell, Nick Wells, Alleen Neal, Nicholas Maryol, Anita Counts, and Troy Sewell, and are

represented by counsel as indicated:

Mr. Chad Cable CHAD CABLE LAW OFFICE 323 Gilmer Street Sulphur Springs, Texas 75482 Tel: (903) 885-1500 Fax: (903) 885-7501

Page i

Table of Contents IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page i

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 1

STATEMENT OF THE JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2

ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 12 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 14

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 15

Page ii

Index of Authorities CASES PAGE

Employer’s Ins. of Wausau v. Halton, 792 S.W.2d 462 (Tex.App. - Dallas 1990, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

FDIC v. Prusia, 18 F.3d 637 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

In re Ford Motor Company, 165 S.W.3d 315 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

In re Kellogg, Brown & Root, Inc., 45 S.W.3d 772 (Tex.App. - Tyler 2001, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

In re Rozelle, 229 S.W.3d 775 (Tex.App. - San Antonio 2007, orig. proceeding) . . . . . . . . . . . . . . . 5, 7

Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Mansfield State Bank v. Cohn, 573 S.W.2d 181 (Tex. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Marino v. King, 355 S.W.3d 629 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

National Hockey League, 427 U.S. at 642-643, 96 S.Ct. at 2780-81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Stelly v. Papania, 927 S.W.2d 620 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10

Page iii

Trans-American National Gas Corp., 811 S.W.2d 913 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10

U.S. Fid. & Guar. Co. v. Gundeau, 272 S.W.3d 603 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

STATUTES, AND RULES

TEX. GOV. CODE, § 22.221(b) (Vernon 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX.R.CIV.P. 198.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10

Page iv

Statement of the Case

The underlying action is a will contest regarding the probate of the Last Will and Testament

of Velma Ruth Fitzgerald. Velma Ruth Fitzgerald, Decedent, a resident of Hopkins County, Texas,

died on December 31, 2007.

On January 2, 2008, RELATOR (hereafter referred to as “C. SEWELL”) filed an Application

to Probate Will of Decedent dated August 8, 2007 in the County Court of Hopkins County, Texas

(Vol. 1, Tab 1). C. SEWELL’S Application was heard and the Will offered by C. SEWELL was

admitted to probate as a Muniment of Title on January 15, 2008 (Vol. 1, Tab 2).

The REAL PARTIES IN INTEREST, JANET NEAL STANLEY (hereafter referred to as

“STANLEY”) and TRUITT SEWELL (hereafter referred to as “T. SEWELL”), respectively filed

an Application to Probate a Last Will and Testament dated April 26, 1993 and an Opposition to C.

SEWELL’s Application to Probate (Vol. 1, Tabs 3, 4 & 7).

After a lengthy period, the case was set to proceed to trial with jury selection on January 12,

2015. On that date, just hours before the commencement of trial, STANLEY and T. SEWELL, by

their attorney, Mr. Chad Cable, filed with the Court a “Certificate of Deemed Admissions” notifying

the Court of the failure of C. SEWELL, who was representing himself pro se at the time, to respond

to Request for Admissions delivered to C. SEWELL in 2010 (over 4½ years before trial) (Vol. 1, Tab

20). C. SEWELL’s subsequent attorneys of record, Mr. Frank Bauer (2nd counsel) and Mr. J. Brad

McCampbell (3rd/present counsel) were totally unaware that their client had been served with

Request for Admissions in 2010 (Vol. 2). As a result of Cable’s filing, at attorney McCampbell’s

request, the Court canceled the jury setting and allowed C. SEWELL to file a Motion to Withdraw

Deemed Admissions (Vol. 1, Tabs 21 & 23). STANLEY and T. SEWELL filed a Response to the

Motion to Withdraw Deemed Admissions (Vol. 1, Tab 22). A hearing on the Motion was held on

April 7, 2015 (Vol. 2). Respondent, The Honorable Amy Smith, denied the Motion to Withdraw

Deemed Admissions as evidenced by Order entered on April 14, 2015 (Vol. 1, Tab 24).

This Petition for Writ of Mandamus follows.

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Statement of Jurisdiction The Court has jurisdiction over this Petition for Writ of Mandamus under Section 22.221(b)

of the Texas Government Code.

Issue Presented

Issue: Did RESPONDENT abuse her discretion in denying RELATOR’s Motion to

Withdraw Deemed Admissions?

Statement of Facts

This case was commenced on January 2, 2008 by C. SEWELL’s filing an “Application to

Probate Will (of Velma Ruth Fitzgerald, dated August 8, 2007) as a Muniment of Title” (Vol. 1, Tab

1).

Said Application was heard by the Judge of the County Court of Hopkins County, Texas on

January 15, 2008 which resulted in said Will being admitted to probate as a muniment of title (Vol.

1, Tab 2).

On January 30, 2008, Janet Neal Stanley (hereafter referred to as “STANLEY”) filed a

competing Application to probate a Will executed on April 26, 1993 by Velma Ruth Fitzgerald (Vol.

1, Tabs 3 & 7).

Both sides filed respective oppositions to the probate applications filed (Vol. 1, Tabs 4, 6,

& 16).

On February 14, 2008, the “Will contest” was transferred to the Hopkins County Court at

Law by order of the County Judge of Hopkins County (Vol. 1, Tabs 5 & 11). 1

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1 Counsel for C. SEWELL does not know the reason for the two (2) transfer orders dated February 14, 2008 and May 20, 2010 respectively.

Representing C. SEWELL in the “Will contest” was Mr. Eddie Northcutt. Representing

STANLEY on her Application and T. SEWELL et al on their Opposition was Mr. Chad Cable. Mr.

Northcutt filed an opposition to STANLEY’s application to probate on February 14, 2008 (Vol. 1,

Tab 6).

As part of the discovery performed in the case, the oral deposition of C. SEWELL was taken

by Chad Cable on May 13, 2008. Eddie Northcutt was present during the deposition. Regarding

discovery in the case, there was no Discovery Control Plan entered by the Court. That being the

case, the applicable Discovery Control Plan for this probate matter is TRCP 190.3, where

discovery is mandated to be completed no later than nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery. The deposition of C.

SEWELL on May 13, 2008, was the commencement of the discovery period (Vol. 1, Tab 21; Vol.

2).

On January 23, 2009, the Court signed an order allowing Eddie Northcutt’s withdrawal from

the representation of C. SEWELL (Vol. 1, Tabs 8 & 9).

On June 17, 2010, C. SEWELL retained the services of Mr. Frank Bauer to represent him

in the “Will contest” (Vol. 1, Tab 13).

In the interim between the withdrawal of Mr. Northcutt and the engagement of Mr. Bauer,

it appears that on May 13, 2010, Mr. Cable served Requests for Admission on C. SEWELL, who,

at the time, was acting pro se (Vol. 1, Tab 19).

C. SEWELL did not respond to said Requests for Admission (Vol. 1, Tabs 21 & 23).

The parties thereafter continued to engage in various forms of discovery, i.e., Requests for

Disclosure, Interrogatories, Requests for Production, and additional depositions (Vol. 1, Tab 21 &

23; Vol. 2).

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On April 22, 2013, Frank Bauer filed a motion to withdraw from the representation of C.

SEWELL. An order allowing Mr. Bauer’s withdrawal was signed by this Court on April 23, 2013

(Vol. 1, Tab 17).

In July, 2013, C. SEWELL retained the services of J. Brad McCampbell, attorney, to

represent C. SEWELL in the matter. Mr. McCampbell’s representation continues to date (Vol. 1,

Tab 19). Since being engaged by C. SEWELL, Mr. McCampbell began preparation to try this case

in front of a jury.

This case was set on various jury dockets only to be continued each time. On January 12,

2015, the case was finally set to commence with jury selection at 1:00 p.m. At 9:20 a.m. on January

12, Mr. Cable filed a document titled “Certificate of Deemed Admissions” notifying the Court of the

failure of C. SEWELL to respond to the Requests for Admission submitted by Mr. Cable over 4½

years before (Vol. 1, Tab 20).

Neither attorneys Bauer nor McCampbell knew of the existence of these requests for

admission until the filing of the Certificate of Deemed Admissions by Mr. Cable literally hours

before jury selection. Based on that filing, this Court excused the jury panel prior to commencement

of trial and allowed Mr. McCampbell, on behalf of C. SEWELL, time to file a Motion for

Withdrawal of Deemed Admissions (Vol. 1, Tabs 21 & 23; Vol. 2).

On February 10, 2015, C. SEWELL filed his Motion to Withdraw Deemed Admissions with

his attached Responses to the Requests for Admission (Vol. 1, Tabs 21 & 23).

On April 6, 2015, T. SEWELL and STANLEY filed their Response to C. SEWELL’s Motion

to Withdraw Deemed Admissions (Vol. 1, Tab 22).

On April 7, 2015, a hearing was held on the Motion to Withdraw Deemed Admissions and

after hearing, the Court entered an order denying the motion (Vol. 1, Tab 24).

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Argument and Authorities

A court of appeals may issue a writ of mandamus, “agreeable to the principles of law

regulating those writs,” against a judge of a county court. TEX.GOV.CODE §22.221(b)(1) (Vernon

2004).

No Adequate Remedy of Appeal A mandamus is an extraordinary remedy that will issue only to correct a clear abuse of

discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal. In

re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005). “A trial court clearly abuses its discretion

if ‘it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error

of law’ ” (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). “A clear

failure to analyze or apply the law correctly will constitute an abuse of discretion, and may result

in appellate reversal by extraordinary writ.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

In Walker, the Texas Supreme Court held that an appeal will be inadequate where the relator’s . . .

“ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial

court’s discovery error . . . The relator must establish the effective denial of a reasonable

opportunity to develop the merits of his or her case, so that the trial would be a waste of judicial

resources.” Id. at 843. In In re Kellogg, Brown & Root, Inc., 45 S.W.3d 772 (Tex.App. - Tyler

2001, no pet.), the Tyler Court held that the trial court abused its discretion in denying Brown &

Root’s motion to strike, withdraw or amend its deemed admissions, and that Brown & Root lacked

an adequate remedy by appeal. See Page 777. Likewise, in In re Rozelle, 229 S.W.3d 757 (Tex.

App - San Antonio 2007, orig. proceeding), the San Antonio Court held that the trial court abused

its discretion in denying Rozelle’s request to withdraw deemed admissions received by Rozelle when

he was acting pro se, and therefore conditionally granted a Writ of Mandamus. See Page 764; see

also TransAmerican National Gas Corp. v. Powell, 811 S.W.3d 913, 919 (Tex. 1991) (orig.

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proceeding) (“Whenever a trial court imposes sanctions which have the effect of adjudicating a

dispute, but by striking pleadings, dismissing an action or rendering a default judgment, but which

do not result in rendition of an appealable judgment, then the eventual remedy by appeal is

inadequate.”)

In Walker, the Court stated there is no adequate remedy by appeal for a merits-preclusive

discovery sanction, unless “the sanctions are imposed simultaneously with the rendition of a final,

appealable judgment.” Walker at 843. No such judgment has been rendered in our case.

The Substance of TRCP Rule 198.3 The applicable Texas Rule of Civil Procedure (TRCP) regarding the effect of deemed admissions and their withdrawal is Rule 198.3. The pertinent language of Rule 198.3 is as follows:

“ . . . a matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. The court may permit the party to withdraw or amend the admission if:

(a) the party shows good cause for the withdrawal or amendment; and (b) the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will not be subserved by permitting the party to amend or withdraw the admission.”

Breaking down the requirements of subsections (a) & (b) of 198.3, it is C. SEWELL’s

position that in seeking withdrawal of deemed admissions he must show (1) good cause for the

withdrawal; (2) that such withdrawal will not unduly prejudice the party relying on the deemed

admissions; and (3) that the merits of the case will be benefitted or promoted by permitting the

withdrawal.

Good Cause Exists to Withdraw the Deemed Admissions

“Good cause” is established by showing the failure involved was an accident or mistake, not

intentional or the result of conscious indifference. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.

1996). While C. SEWELL recognizes that trial courts have broad discretion to permit or deny

withdrawal of deemed admissions, but they cannot do so arbitrarily, unreasonably, or without

reference to guiding principles. Id. at 622.

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There does exist good cause for withdrawal of the deemed admissions:

(1) At the time of delivery of the requests for admission to C. SEWELL, he was

representing himself pro se, (attorney Northcutt having withdrawn as counsel of

record in January of 2009 and before attorney Bauer undertook his representation)

(Vol. 1, Tabs 9 & 13; Vol. 2).

(2) Representing himself, C. SEWELL did not have an understanding of the effect of

admissions and the consequences of not responding to them (Vol. 1, Tabs 21 & 23;

Vol. 2). As in the Rozelle case previously cited, and the Wheeler case hereafter

discussed, the fact that the party receiving the Requests for Admission, not being a lawyer, is significant to the Court’s determination under Rule 198.3.

(3) While C. SEWELL does not deny that his signature is affixed to the certified

mailing’s return receipt card at the time of delivery of the Requests for Admission,

he does not have recollection of the Requests for Admission and has not been able

to locate said document (Vol. 1, Tabs 21 & 23; Vol. 2).

(4) The deposition of C. SEWELL was taken in May 2008. In said deposition, C.

SEWELL took a position entirely contrary to the substance of the requested

admissions delivered to him in 2010 (Vol. 1, Tab 21, Page 4 & 5, Tab 23; Vol. 2).

Upon taking this deposition, attorney Cable became acutely aware of C. SEWELL’s

position in the case (Vol. 1, Tab 21, Page 4, Tab 23; Vol. 2). Additionally, attorney

Cable was aware that C. SEWELL’s opposition filed by attorney Northcutt in

February 2008, a date over two years before the Requests for Admission, denied

allegations that Decedent lacked testamentary capacity and that C. SEWELL exerted

undue influence over Decedent (Vol. 1, Tab 21, Page 5, Tab 23; Vol. 2). The subject

Requests for Admission, as deemed, are in direct contradiction to S. SEWELL’s

position in the case.

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(5) Attorneys Bauer & McCampbell were never made aware of the delivery of Requests

for Admission to C. SEWELL, either by C. SEWELL himself or by attorney Cable,

until the morning of jury selection in January of 2015.

Neither did the Court’s file contain any evidence that Requests for Admission had

been sent to C. SEWELL.2 Had either attorney been made aware, one of two things

would have happened: (1) Responses to the Request for Admissions would have been

immediately prepared and submitted; or (2) a Motion to Withdraw Deemed

Admissions would have been filed shortly after being made aware of them (Vol. 1,

Tab 21, Page 4, Tab 23; Vol. 2).

(6) Over 4½ years elapsed from the deadline for responding to the Requests for

Admission and the filing of the Certificate of Deemed Admissions (Vol. 1, Tab 20).

(7) While our rules do not mandate if or when a Certificate of Deemed Admissions

should be filed in a given case, the effect of attorney Cable’s chosen course was to

allow C. SEWELL to hire not one but two more attorneys, spending thousands of

dollars in preparation for trial when attorney Cable knew all along that C. SEWELL’s

case was effectively “gutted” by the deemed admissions (Vol. 1, Tabs 21 & 23; Vol.

2).

Based on the foregoing, C. SEWELL’s failure to respond was not intentional or the result of

conscious indifference, bad faith, or a callous disregard for the rules.

Real Parties in Interest Will Not be Unduly Prejudiced

by the Withdrawal of the Deemed Admissions (1) This case commenced in January of 2008. Approximately (7) seven years passed

between that date and the trial setting of January 12, 2015. During that time, both

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2 At the time of delivery of the Requests for Admission by the attorney Cable, no Certificate of Written Discovery was filed with the Court (which is customarily done by attorneys) nor was any other type of notice filed with the Court that the Requests were being sent. This is significant because attorney McCampbell’s thorough review of the Court’s file and previous attorney Bauer’s file did not reveal any hint of the Requests for Admission (Vol. 1, Tab 21, Pages 2, 3, & 4).

sides have conducted discovery, i.e., depositions, requests for disclosure,

interrogatories and requests for production (Vol. 1, Tabs 21 & 23; Vol. 2). The

position of the REAL PARTIES IN INTEREST is that they will be prejudiced if the

admissions are withdrawn because they would have conducted and completed more

discovery had they known. This position is not supported by case law. As already

stated, over 4½ years have passed between the deadline to respond to the Requests

for Admission and the trial setting, more than ample time for all discovery to be

conducted.

In Employer’s Ins. of Wausau v. Halton, 792 S.W.2d 462, 467 (Tex.App. -

Dallas 1990, writ denied), the Dallas Court, in allowing the withdrawal of deemed

admissions, stated that:

“Defendant’s counsel pointed out that Plaintiff had almost a month before trial to conduct additional discovery the matters previously admitted. We reiterate that Plaintiff had known since early July. When Defendant filed its Original Answer, that Defendant contested almost all material issues in the case . . . It is hard to find prejudice where the parties had almost a month before the trial in which they could conduct additional discovery about the injury and the disputed fact issues. Moreover, as we have stressed, Plaintiff knew that Defendant contested the very ‘injury’ upon which Plaintiff’s Industrial Accident Board award was based. He cannot now claim prejudice by its ‘reliance’ on the deemed admissions when he knew that Defendant disputed almost every issue in the lawsuit.” See Page 467.

(2) As already stated, STANLEY and T. SEWELL, by Attorney Cable, had previously

deposed C. SEWELL in 2008. Their theories of the case were not dependent upon

the deemed admissions. These facts are similar to those in Wal-Mart Stores, Inc. v.

Deggs, 968 S.W.2d 354 (Tex. 1998). In Deggs, the Court held that because Plaintiff

Deggs had taken the deposition of Defendant Smith before the Requests for

Admission to Smith were due, Deggs would not be unduly prejudiced if the deemed

admissions were withdrawn. Id. at 357. That Court further held that deemed

admissions should be withdrawn if presentation of the merits of the action will be

served thereby. Deggs at 356.

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(3) During the pendency of this case, both sides either requested or agreed to several

continuances regarding trial of the case (Vol. 2).

(4) The term “prejudice” does not include the fact that, if the admissions were

withdrawn, the party who obtained that admission would then have to convince the

fact finder of its truth. See FDIC v. Prusia, 18 F.3d 637, 640 (8th Cir. 1994).

Withdrawal of the Deemed Admissions Would Promote Presentation of the Merits of the Case TRCP 198.3 includes as part of the undue prejudice inquiry whether presentation of the

merits will be served by permitting withdrawal of deemed admissions.

“The discovery rules were not designed as traps for the unwary, nor should we construe them

as preventing a litigant from presenting the truth.” See Stelly at 622; see also Marino v. King, 355

S.W.3d 629, 632 (Tex. 2011) (quoting U.S. Fid. & Guar. Co. v. Gundeau, 272 S.W.3d 603, 610

(Tex. 2008): “Requests for Admission should be used as a ‘tool not a trap door’ ”). “The primary

purpose [of Rule 169 (now 198)] is to simplify trials by eliminating matters about which there is no

real controversy, but which may be difficult or expensive to prove. Is was never intended to be used

as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of

defense.” See Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (1950).

When a party uses deemed admissions to try to preclude presentation of the merits of a case,

due process concerns should arise. See Trans-American National Gas Corp., 811 S.W.2d 913, 918

(Tex. 1991) (quoting National Hockey League, 427 U.S. at 642-643, 96 S.Ct. at 2780-81:

“Sanctions which are so severe as to preclude presentation of the merits of the case should not be

assessed absent a party’s flagrant bad faith or counsel’s callous disregard under the rules.”)

In the case at bar, T. SEWELL alleges by his pleading that Decedent did not have

testamentary capacity to execute the August 8, 2007 Will and that C. SEWELL unduly influenced

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Decedent in her execution of that Will (Vol. 1, Tab 4). The deemed admissions, as a whole, have

the effect of either precluding C. SEWELL’s presentation of the merits of his case or precluding his

ability to present a ground of defense to the allegations (undue influence and lack of testamentary

capacity) in his opponent’s pleadings (Vol. 1, Tab 22). Furthermore, several of the requests in

question ask C. SEWELL to admit or deny a purely legal issue, i.e., that C. SEWELL exercised

undue influence over Decedent; that the August 8, 2007 Will is invalid; and that C. SEWELL is

liable for damages and attorney’s fees (Vol. 1, Tab 22). Similarly, in Wheeler v. Green, 157 S.W.3d

439 (Tex. 2005), a custody modification case, the Court found that . . . “of the 64 deemed

admissions, none sought to discover information: nine deemed circumstances changed so modification was proper, twenty-seven deemed modification in the child’s best interest, twenty-seven

deemed Sandra liable for malicious prosecution, and three deemed her liable for child support,

attorney’s fees, and exemplary damages.” Wheeler at 443. The Supreme Court in Wheeler held

that there was good cause for withdrawing the deemed admissions and that withdrawal would not

cause undue prejudice to the father. Id. at 444. The Court in Wheeler, while agreeing that pro se

litigants were not exempt from the rules of procedure (see Mansfield State Bank v. Cohn, 573

S.W.2d 181, 184-185 (Tex. 1978) ), stated that:

“When a rule itself turns on an actor’s state of mind (as these do here), application may

require a different result when the actor is not a lawyer. Recognizing that

Sandra did not know what any lawyer would does not create a separate rule, but

recognizes the differences the rule itself contains.” Wheeler at 444.

The due process concern voiced in Wheeler arises here because of the very nature of the

admissions requested in the case at bar, and the trial court’s subsequent denial of the Motion to

Withdraw Deemed Admissions has a merits-preclusive effect on C. SEWELL’s case and the case

as a whole.

Page -11-

Prayer

RELATOR prays that this Court issue a Writ of Mandamus commanding RESPONDENT,

the Honorable Amy Smith, to vacate her Order denying RELATOR’S Motion to Withdraw Deemed

Admissions and to enter an order granting RELATOR’s Motion to Withdraw Deemed Admissions

and permitting RELATOR to substitute his late responses, and for such other and further relief to

which RELATOR may be entitled.

Respectfully submitted,

CURTIS, ALEXANDER & McCAMPBELL, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 Tel. (903) 473-2297 Fax. (903) 473-3069

//s// J. Brad McCampbell bmccampbell@cammpclaw.com Texas Bar No. 13358000 ATTORNEYS FOR CARLTON SEWELL

Page -12-

VERIFICATION

STATE OF TEXAS X

COUNTY OF RAINS X

BEFORE ME, the undersigned notary public, on this day personally appeared J. Brad

Mccampbell, Relator's attorney, who being duly sworn by me deposed and said:

1. "I am counsel of record for CARLTON SEWELL, Relator in this case. I am over 21 years of age and am competent to make this affidavit. I have read the Petition for Writ ofMandamus to which this Verification is attached, which is filed on behalf of CARLTON SEWELL and every factual statement contained in the petition is within my personal knowledge and is true and correct.

2. "The petition is accompanied by a two-volume record and an appendix. I have personal knowledge that the pleadings, motions, and orders contained in Volume 1 of the record and those contained in the appendix are true and correct copies. I also have personal knowledge that the reporter's transcript contained in Volume 2 of the record is a true and correct copy of the electronic recording of the hearing on CARLTON SEWELL's Motion to Withdraw Deemed Admissions that has been transcribed by Jana Atchison Rushing, CSR."

Further Affiant sayeth not.

SUBSCRIBED AND SWORN TO BEFOREMEonJune23, 2015, to certify which witness my hand and official seal.

SUSAN PEREZ

My Commission Expires

August24,2018

Page -13-

Certificate of Service

I certify that a true copy of this Petition for Writ of Mandamus was served in accordance with

Rule 9.5 of the Texas Rules of Appellate Procedure on each party or the attorney for such party

indicated below by hand delivery on this 25th day of June, 2015.

/s/ J. Brad McCampbell

__________________

Attorney for Relator

Honorable Amy Smith Presiding Judge of the Hopkins County Court at Law 118 Church Street Sulphur Springs, Texas 75482 By Hand Delivery

Mr. Chad Cable CHAD CABLE LAW OFFICE 323 Gilmer Street Sulphur Springs, Texas 75482 Attorney for Applicant and Contestants By Hand Delivery

Page -14-

Appendix

1. Certified copy of the Trial Court’s Order dated April 14, 2015

2. Copy of TEX. GOV. CODE, § 22.221 (Vernon 2004)

3. Copy of TEX.R.CIV.P. 198.3

Page -15-

NO. P08 - 13,106

7.015 1~PR I Lt P 2: ~-5

ESTATE OF § IN THE COUNTY GDERJ?~!r'·!-~Y t_,:JUfof f 'f L~f:R~{

§

VELMA RUTH FITZGERALD, § By···••H. ·-·· ··-··--·---·-··-·-· 0E? uT'f DECEASED § HOPKINS COUNTY, TEXAS

ORDER DENYING MOTION TO WITHDRAW DEEMED ADMISSIONS, SHEDULING SUMMARY JUDGMENT HEARING AND

REQUIRING MEDIATION

The Court considered Probate Applicant Carlton Sewell's Motion to Withdraw

deemed Admissions and Contestant's response with argument of respective counsel on

The Motion to Withdraw Deeded Admissions is hereby denied.

Noting the Contestants have filed a Motion for Summary Judgment, a hearing on

that motion is hereby scheduled for May 21 5\ 2015 at 9:00 a.m.

Finally, the parties are Ordered to mediation, to be completed prior to May 21 5\

2015 with a mediator to be agreed upon by the parties.

Absent an agreement within five days the Court will name a mediator.

The cost of the mediator shall be evenly divided between the parties.

Signed this \ \..\ day of April, 2015.

ORDER DENYING MO'I'IONTO WITHDRAW Judge

DE~SifffeX

z >' I

ILUL!Ni

JUDGMENT HEARING AND RE UIRING MEDIA'lf{ip 7 ·l~ COPY OF ORIGINAL ·\--\ ~* FILED IN 1--!0Pf<INS ·;:c.~-~1n0;~ COUNTY CLERK'S OFFICE

Tex. Gov’t Code § 22.221

This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > GOVERNMENT CODE > TITLE 2. JUDICIAL BRANCH > SUBTITLE A. COURTS > CHAPTER 22. APPELLATE COURTS > SUBCHAPTER C. COURTS OF APPEALS

§ 22.221. Writ Power (a) Each court of appeals or a justice of a court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court.

(b) Each court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against a:

(1) judge of a district or county court in the court of appeals district; or (2) judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district.

(c) [Repealed by Acts 1987, 70th Leg., ch. 148 (S.B. 895), § 2.03, effective September 1, 1987.] (d) Concurrently with the supreme court, the court of appeals of a court of appeals district in which a person is restrained in his liberty, or a justice of the court of appeals, may issue a writ of habeas corpus when it appears that the restraint of liberty is by virtue of an order, process, or commitment issued by a court or judge because of the violation of an order, judgment, or decree previously made, rendered, or entered by the court or judge in a civil case. Pending the hearing of an application for a writ of habeas corpus, the court of appeals or a justice of the court of appeals may admit to bail a person to whom the writ of habeas corpus may be granted.

History

Enacted by Acts 1985, 69th Leg., ch. 480 (S.B. 1228), § 1, effective September 1, 1985; am. Acts 1987, 70th Leg., ch. 69 (S.B. 151), § 1, effective May 6, 1987; am. Acts 1987, 70th Leg., ch. 148 (S.B. 895), §§ 1.35, 2.03, effective September 1, 1987; am. Acts 1991, 72nd Leg., ch. 58 (H.B. 596), § 1, effective May 2, 1991; am. Acts 1995, 74th Leg., ch. 839 (H.B. 3073), § 1, effective September 1, 1995.

LexisNexis ® Texas Annotated Statutes Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved.

Philip D. Alexander

Tex. R. Civ. P. 198

This document is current through April 8, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 9. Evidence and Discovery > B. DISCOVERY

Rule 198 Requests for Admissions 198.1. Request for Admissions. --A party may serve on another party - no later than 30 days before the end of the discovery period - written requests that the other party admit the truth of any matter within the scope of discovery, including statements of opinion or of fact or of the application of law to fact, or the genuineness of any documents served with the request or otherwise made available for inspection and copying. Each matter for which an admission is requested must be stated separately.

198.2. Response to Requests for Admissions.

(a) Time for Response. --The responding party must serve a written response on the requesting party within 30 days after service of the request, except that a defendant served with a request before the defendant’s answer is due need not respond until 50 days after service of the request.

(b) Content of Response. --Unless the responding party states an objection or asserts a privilege, the responding party must specifically admit or deny the request or explain in detail the reasons that the responding party cannot admit or deny the request. A response must fairly meet the substance of the request. The responding party may qualify an answer, or deny a request in part, only when good faith requires. Lack of information or knowledge is not a proper response unless the responding party states that a reasonable inquiry was made but that the information known or easily obtainable is insufficient to enable the responding party to admit or deny. An assertion that the request presents an issue for trial is not a proper response.

(c) Effect of Failure to Respond. --If a response is not timely served, the request is considered admitted without the necessity of a court order.

198.3. Effect of Admissions; Withdrawal or Amendment. --Any admission made by a party under this rule may be used solely in the pending action and not in any other proceeding. A matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. The court may permit the party to withdraw or amend the admission if: (a) the party shows good cause for the withdrawal or amendment; and (b) the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved by permitting the party to amend or withdraw the admission.

Texas Rules Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.

Philip D. Alexander

VOLUME 1

No. _____________________

In Re CARLTON SEWELL, Relator

RECORD OF

CERTIFIED COPIES OF

PLEADINGS, MOTIONS AND ORDERS

TRIAL COURT CAUSE NO. P08-13106

IN THE ESTATE OF * IN THE COUNTY COURT

*

VELMA RUTH FITZGERALD * AT LAW OF

*

DECEASED * HOPKINS COUNTY, TEXAS

INDEX

1. Certified copy of Application to Probate Will as Muniment of Title.

2. Certified copy of Order Probating Will as Muniment of Title.

3. Certified copy of Application for Probate of Will and for Letters Testamentary.

4. Certified copy of Opposition to Probate of Will.

5. Certified copy of Order of Transfer.

6. Certified copy of Opposition to Application for Probate of Will and for Letters Testamentary and Answer to Opposition to Probate of Will.

7. Certified copy of Amended Application for Probate of Will and for Letters Testamentary.

8. Certified copy of Motion for Withdrawal of Counsel.

9. Certified copy of Order Granting Motion for Withdrawal of Counsel.

10. Certified copy of Motion for Appointment of Independent Executor.

11. Certified copy of Order on Motion to Transfer Contested Probate Matter.

12. Certified copy of Order Appointing Personal Representative (Temporary) Pending Contest.

13. Certified copy of Notice of Appearance and Request for Notices and Service of Papers.

14. Certified copy of Affidavit (with attachment) of Frank Bauer.

15. Certified copy of Certificate of Written Discovery Directed to Chad Cable.

16. Certified copy of Supplement to Opposition for Probate of Will and for Letters Testamentary and Answer to Opposition to Probate of Will.

17. Certified copy of Motion for Withdrawal of Counsel.

18. Certified copy of Order on Motion for Withdrawal of Counsel.

19. Certified copy of Appearance of Counsel.

20. Certified copy of Certificate of Deemed Admissions.

21. Certified copy of Motion to Withdraw Deemed Admissions.

22. Certified copy of Contestants’ Response to Carlton Sewell’s Motion to Withdraw Deemed Admissions.

23. Certified copy of Affidavit in Support of Motion to Withdraw Deemed Admissions.

24. Certified copy of Order Denying Motion to Withdraw Deemed Admissions, Scheduling Summary Judgment Hearing and Requiring Mediation.

..--......

NO. tb~- /3 JQ/p ESTATE OF § IN THE COUNTY COURT OP.::

§

VELMA RUTH FITZGERALD, § DECEASED § HOPKINS COUNTY, TEXAS:~'

APPLICATION TO PROBATE WILL AS MUNIMENT OF TITLE

TO THE HONORABLE JUDGE OF SAID COURT:

Carlton N. Sewell applies to probate the Last Will and Testament of Velma Ruth

Fitzgerald, deceased, as muniment of title, and shows the Court as follows:

I.

Applicant's domicile is in Hopkins County, Texas, where he resides at 107 Morris

Drive, Sulphur Springs, Texas, 75482. He was the decedent's cousin.

11.

Velma Ruth Fitzgerald died in Hopkins County, Texas, on December 31, 2007, at

the age of eighty-six. At the time of her death, she was domiciled in Hopkins County,

Texas, where she resided at 890 Camp Street, Sulphur Springs, Texas, 75482.

111.

At the time of her death, the decedent owned real and personal property whose

value applicant estimates to be less than $600,000.00.

IV.

The decedent died testate. Her Last Will and Testament was dated August 8,

2007. A copy of such Will is attached to this application and is incorporated herein for

all purposes. The Will named Carlton N. Sewell as Independent Executor of the Will.

The said Carlton N. Sewell resides in Hopkins County, Texas. The subscribing wit-

nesses to the Will were Vicki Latimer, who is a resident of Hunt County, Texas, and

Tiffamy Bassham, who is a resident of Hopkins County, Texas.

TRUE AND CORRECT COPY OF ORIGINAL

- :/· S CFFICE

APPLICATION TO PROBATE WILL AS MUNIMENT OF TITLE - 1

V.

The Will does not name the state or a governmental agency of the state as a de-

vi see.

VI.

No child or children were born to or adopted by the decedent after she made the

aforesaid Will. She was never divorced.

VII.

The only debts of the Estate remaining to be paid are current bills for which the

funds of the Estate are more than adequate. There are no other debts of the Estate

remaining unpaid, exclusive of debts secured by liens on real estate. The subject Will

devises and bequeaths all of the decedent's Estate to her cousin, Carlton N. Sewell,

who is the applicant, and contains no special provisions requiring administration. There

is no necessity or reason, therefore, for administration of the decedent's Estate.

WHEREFORE, applicant asks that citation be issued to all parties interested in

this Estate as required by law, that the aforesaid Will be admitted to probate as muni-

ment of title, and for such other and further orders as the Court may deem proper.

Ra mond R. John on B r No. 107810 P. 0. Box 522 Sulphur Springs, Texas 75483-0522 Telephone 903-885-8691 Telefax 903-885-8692

Attorney for Applicant

:<r>, _,.;, __. . i .- :

,~)j COPY OF ORid;'JAl .

FILED IN HOPKINS

.!';~~ '.'/~Of"\'<-.;; COUNTY CLERK'S OFFICE · .. , ... -

APPLICATION TO PROBATE WILL AS MUNIMENT OF TITLE - 2

JLast WiU anb ~estament

of

'.lJelma l\utb jfit~geralb

STATE OF TEXAS §

COUNTY OF HOPKINS § KNOW ALL MEN BY THESE PRESENTS:

That I, VELMA RUTH FITZGERALD,' a resident of Hopkins County, Texas, being of

sound and disposing mind and memory and above the age of eighteen years, do hereby make,

publish and declare this to be my Last Will and Testament, hereby revoking all prior Wills, if

any, made by me.

I.

I direct that my just debts, funeral expenses and all taxes due as a result of my death, as well as the costs and expenses of the administration of my estate, be paid as soon as practicable

without the unnecessary sacrifice of any of the properties of my estate.

IL

All of the rest, residue and remainder of my estate, real, personal and mixed, of whatever nature, wherever situated and however acquired, which I may own or have any interest in at the time of my death, I give, devise and bequeath unto my cousin, CARLTON N. SEWELL, in fee simple forever.

III.

lfmy cousin, CARLTON N. SEWELL, has predeceased me, or ifhe should die before

the expiration of ninety days following the day of my death, then I give, devise and bequeath one-half of the rest, residue and remainder of my estate unto his wife, MARY J. SEWELL, and the other one-half unto my cousin, TRUITT L. SEWELL, the brother of CARLTON N. SEWELL, share and share alike, in fee simple forever.

IV.

In the event CARLTON N. SEWELL dies as set out above and in the event either the said MARY J. SEWELL or TRUITT L. SEWELL has predeceased me or dies before the expiration of ninety days following the day of my death, leaving a descendant or descendants who survive my death and her or his death, then I give, devise and bequeath unto such descendant or descendants per stirpes, in fee simple forever, the share which the decedent, MARY J. SEWELL or TRUITT L. SEWELL, would have otherwise received, the division of which shall be determined as if the deceased beneficiary had predeceased me. If.either the. said MARY J. SEWELL or TRUITT L. SEWELL has predeceased me or dies befQ_i:<?ti\e ex.P,rtati~,n, :J ~

MARY J. SEWELL or TRUITf L. SEWELL would have received unto the survivor between

MARY J. SEWELL or TRUITf L. SEWELL, and per stirpes to the descendant or descendants of a deceased beneficiary, whose share or shares shall be determined as if the deceased

beneficiary had predeceased me.

v.

I hereby nominate and appoint CARLTON N. SEWELL, and if he is unable to serve,

then MARY J. SEWELL, and if she is unable to serve, then TRUITT L. SEWELL, Independent

Executor or Independent Executrix of this my Last Will and Testament, and direct that no

security be required of any of them as such Independent Executor or Independent Executrix and

that no other action be had in the administration of my estate than to probate and record this Will

and return an inventory and list of claims as required by law.

IN TESTIMONY WHEREOF, I have hereunto subscribed and signed these presents in

the presence of the witnesses whose names are affixed hereto and whom I have requested to sign

their names hereto as witnesses, and in the presence of said witkesses I have declared and published the foregoing as my Last Will and Testament on the !) L day of August, 2007.

The foregoing was on this day signed by VELMA RUTH FITZGERALD in our presence

and in the presence of each of us, and at the time of her subscribing said instrument she declared

that it was her Will, and at her request and in her presence, and in the presence of each other, we

have subscribed our names as witnesses thereto on the J.~ day of August, 2007.

,;:;\~i'I Of'ry; ,rcy~o..,

TRUE AND CORFZECT

;'.' I\ ,, '"-__, 7

\<'.;. \z

COPY OF OR!(;i\\iAl,,, / '

; !~---\'::; FILED IN HOPKIN::?: , 'Vt~ Co 1u N·1"·'\/c'''t:R ,Li:: ' ;:::;

- OFFICE

\ ··.' Y.)

1

I

Last Will and Testament of VELMA RUTH FITZGERALD - 2

STATE OF TEXAS §

COUNTY OF HOPKINS §

Before me, the undersigned authority, on this day personally appeared VELMA RUTH

FITZGERALD, VICKI LATIMER and "7Tffla V1j 134 55 h4 J.21 known to me to be the testatrix and the witnesses, respectively, whose names are subscribed to

the annexed or foregoing instrument in their respective capacities, and, all of said persons being

by me duly sworn, the said VELMA RUTH FITZGERALD, testatrix, declared to me and to the

said witnesses in my presence that said instrument is her last will and testament, and that she had

willingly made and executed it as her free act and deed; and the said witnesses, each on his oath

stated to me, in the presence and hearing of the said testatrix, that the said testatrix had declared

to them that said instrument is her last will and testament, and that she executed the same as such

and wanted each of them to sign it as a witness; and upon their oaths each witness stated further

that they did sign the same as witnesses in the presence of the said testatrix and at her request;

that she was at that time eighteen years of age or over and was of sound mind; and that each of

the said witnesses was then at least fourteen years of age.

Subscribed and sworn to before me by the said VELMA RUTH FITZGERALD,

testatrix, and by the said VICKI LATIMER and _T[~J~fl~fl.~4~11......,.._tl~B~4~S~S_h~c/~)11......__~ witnesses, this J/.l_ day of August, 2007. l

C8rolyn FNnCh

on.,...

.. -._............ NoC8fy Public, SCMe My Commlnlon E>cpka:

FebruMY" 200I

_,:;,..:.ivot:1y, . TRUE AND CORR'E·CT 'V~o..,, - ·,,_J\~ ( \~ )co COPY . OF ORIGINAL

, , /;\ · F!LED JN HOPK!f\JS }) ~:: .· F<t('S OFFICE Last Will and Testament of VELMA RUTH FITZGERALD - 3 ·. ~,

1Last Will anh ~estament

of ·< '.lJelma 3L\utb jfitn1eralh

I

f'-.)

STATE OF TEXAS § ·<:JC.'

COUNTY OF HOPKINS § KNOW ALL MEN BY THESE PRESEN.ES:

That I, VELMA RUTH FITZGERALD, a resident of Hopkins County, Texas, being-bf··

sound and disposing mind and memory and above the age of eighteen years, do hereby make,

publish and declare this to be my Last Will and Testament, hereby revoking all prior Wills, if

any, made by me.

I.

I direct that my just debts, funeral expenses and all taxes due as a result of my death, as

well as the costs and expenses of the administration of my estate, be paid as soon as practicable

without the unnecessary sacrifice of any of the properties of my estate.

IL

All of the rest, residue and remainder of my estate, real, personal and mixed, of whatever

nature, wherever situated and however acquired, which I may own or have any interest in at the

time of my death, I give, devise and bequeath unto my cousin, CARLTON N. SEWELL, in fee

simple forever.

III.

Ifmy cousin, CARLTON N. SEWELL, has predeceased me, or ifhe should die before

the expiration of ninety days following the day of my death, then I give, devise and bequeath

one-halfofthe rest, residue and remainder of my estate unto his wife, MARY J. SEWELL, and

the other one-half unto my cousin, TRUITT L. SEWELL, the brother of CARLTON N.

SEWELL, share and share alike, in fee simple forever.

IV.

In the event CARLTON N. SEWELL dies as set out above and in the event either the

said MARY J. SEWELL or TRUITT L. SEWELL has predeceased me or dies before the

expiration of ninety days following the day of my death, leaving a descendant or descendants

who survive my death and her or his death, then I give, devise and bequeath unto such

descendant or descendants per stirpes, in fee simple forever, the share which the decedent,

MARY J. SEWELL or TRUITT L. SEWELL, would have otherwise received, the division of

which shall be determined as if the deceased beneficiary had predeceased me. If either the said

MARY J. SEWELL or TRUITT L. SEWELL has predeceased me·o:r"&fr.s_ }>,efQre the expiration

of ninety days following the day of my death and leaves no des~i:Xidant who survives my death

and her or his death, then I give, devise and beque th in foe simple forever the share which 'c~o.., TRUE AND CORRE; CT . _/1_ ·)~ COPY.-OF ORIGINAL '.

. ;/~ ;; FILED IN HOPKJNS ·. ·· . _;5~Y, m!;zNTY CLERK'S CFFICE Last Will and Testament of VELMA RUTH FITZGERALD -1 V /f ~

MARY J. SEWELL or TRUITT L. SEWELL would have received unto the survivor between

MARY J. SEWELL or TRUITT L. SEWELL, and per stirpes to the descendant or descendants

of a deceased beneficiary, whose share or shares shall be determined as if the deceased

beneficiary had predeceased me.

v.

I hereby nominate and appoint CARLTON N. SEWELL, and if he is unable to serve,

then MARY J. SEWELL, and if she is unable to serve, then TRUITT L. SEWELL, Independent

Executor or Independent Executrix of this my Last Will and Testament, and direct that no

security be required of any of them as such Independent Executor or Independent Executrix and

that no other action be had in the administration of my estate than to probate and record this Will

and return an inventory and list of claims as required by law.

IN TESTIMONY WHEREOF, I have hereunto subscribed and signed these presents in

the presence of the witnesses whose names are affixed hereto and whom I have requested to sign

their names hereto as witnesses, and in the presence of said wit~esses I have declared and published the foregoing as my Last Will and Testament on the /1 L day of August, 2007.

The foregoing was on this day signed by VELMA RUTH FITZGERALD in our presence

and in the presence of each of us, and at the time ofher subscribing said instrument she declared

that it was her Will, and at her request and in her presence, and in the presence of each other, we

have subscribed our names as witnesses thereto on the J. £1: day of August, 2007.

~ TRUE AND CORRECT .'.·./-.,, ,·,·\:.u'j\ COPY 9F ORIGINAL " FILED !N HOPr<INS ·~ COUNTY CLERK'S OFFICE

Last Will and Testament of VELMA RUTH FITZGERALD - 2

STATE OF TEXAS §

COUNTY OF HOPKINS §

Before me, the undersigned authority, on this day personally appeared VELMA RUTH

FITZGERALD, VICKI LATIMER and 7ff-Pa »/ Ys4 5 5 h4 VY)

known to me to be the testatrix and the witnesses, respectively, whose names are subscribed to

the annexed or foregoing instrument in their respective capacities, and, all of said persons being

by me duly sworn, the said VELMA RUTH FITZGERALD, testatrix, declared to me and to the

said witnesses in my presence that said instrument is her last will and testament, and that she had

willingly made and executed it as her free act and deed; and the said witnesses, each on his oath

stated to me, in the presence and hearing of the said testatrix, that the said testatrix had declared

to them that said instrument is her last will and testament, and that she executed the same as such

and wanted each of them to sign it as a witness; and upon their oaths each witness stated further

that they did sign the same as witnesses in the presence of the said testatrix and at her request;

that she was at that time eighteen years of age or over and was of sound mind; and that each of

the said witnesses was then at least fourteen years of age.

VELMA RUTHFTZGLD

Subscribed and sworn to before me by the said VELMA RUTH FITZGERALD,

testatrix, and by the said VICKI LATIMER and _fr~J_fJ~fl.~4~11-'--;'-tl~i5~t1~5~S~h~cl~h1_,_.___ witnesses, this J-14._ day of August, 2007. I

''-~0-0 TRUE AND CORRECT . }\-)~ COPY OF ORIGINf.l ' <' <n :,.·'~ * FILED IN.HOPKINS .~a~~ COUNTYCl_ERl<'S CFFICE Last Will and Testament of VELMA RUTH FITZGERALD -3 r=============,,,. .., ··..,,.--==============

No. e(J~- )3/0~ THE STATE OF TEXAS

TO ALL PERSONS INTERESTED IN THE ESTATE OF VELMA RUTH FITZGERALD, Deceased:

CARLTON N. SEWELL has filed an application in the County Court of Hopkins County, Texas, on the 2nd day of January, 2008, for probate of the LAST WILL and TESTAMENT of VELMA RUTH FITZGERALD, DECEASED, as Muniment of Title.

The style of the case is, IN THE ESTATE OF VELMA RUTH FITZGERALD, DECEASED.

The file number is (Of? - / ~I Ob on the Probate Docket of said Court.

All persons interested in said Estate are ALL CITED TO APPEAR on the first Monday next after the expiration of ten days from date of such posting, which is January 14, 2008, before the said County Court at the courthouse in SULPHUR SPRINGS, TEXAS, to contest the application if they desire to do so, by filing written objections thereto at or before 10:00 o'clock a.m. of said day. The application will be heard before the Court at 10:00 o'clock a.m. on January 15, 2008.

The name and address of the attorney for applicant are:

Raymond R. Johnson P. 0. Box 522, Sulphur Springs, Texas, 75483-0522

Issued this ~c{)='~-day of January, 2008.

.:;--::::-•

The officer executing this Citation shall post the copy of this Citation at the courthouse dbor ~f the GQ.iinty q1which this proceeding is pending, or at the place in or near said courthouse where public notices custpmanly ar~osted~:for not less than I 0 days before the return day thereof, exclusive of the date of posting, and shall return the origliial copy of this Citation to the Clerk, stating in a written return thereon the time and place where he posted such copy.

Witness my hand and official seal, at Sulphur Springs, Texas, this J< day of January, 2008.

DEBBIE SHIRLEY, Clerk, County Court, Hopkins County, Texas.

288 SPRINGS, TEXAS 75483-0288

SHERIFF'S RETURN

Came to hand on the ;J day of January, 2008, at J: 4·7 o'clock P.m. and executed on the _ __ day of January, 2008, by posting a copy of the within citation for ten days, exclusive of the day of posting, before the return day hereof.

*At the Courthouse doorr,ofJI'0:Rpns County, Texas * At , ,_,_··_·_·_.,_.·_f_' _ _ _ _ _ _ _, the place in or near the Courthouse of Hopkins County, Texas, where public/i.otices customartly are posted. FEES Posting Citation ...... $ _ _ _ _ _ _ _ _ __

NO. P08-13106

ESTATE OF § IN THE COUNTY tddR+ G.F /,,;: f: 01 §

VELMA RUTH FITZGERALD, § ;

DECEASED § HOPKINS COUNTY,, TEXAS

ORDER PROBATING WILL AS MUNIMENT OF TITLE

On the 15th day of January, 2008, came on to be heard the application of Carlton N. Sewell to probate the Last Will and Testament of Velma Ruth Fitzgerald, the decedent, as muniment of title. Applicant appeared in person and by his attorney of record . The Court examined the application to probate the subject Will as muniment of title, and heard and considered the evidence presented to the Court. On the evidence the Court determined that the said Velma Ruth Fitzgerald died testate on December 31, 2007, in Hopkins County, Texas, that Hopkins County, Texas, was the county of her domicile at the time of her death, and that this Court has jurisdiction and venue over her Estate.

The Court further determined that the application to probate the Last Will and Testament of Velma Ruth Fitzgerald, Deceased, was filed herein on the 2nd day of January, 2008, that it complies with the requirements of law, that citation has been served and returned in the manner and for the length of time required by law, and that no objection to the subject application has been made or filed herein.

The Court further determined that the Last Will and Testament of Velma Ruth Fitzgerald, filed with the subject application and produced in open court, is dated August 8, 2007, and was subscribed and sworn to by the decedent and witnesses shown therein and is self proven as required by law; that the decedent, Velma Ruth Fitzgerald, was over nineteen years of age and was of sound mind when she executed her Last Will and Testament; that she executed such Will in the manner required by law and did not revoke it; and that all of the necessary proof required for the probate of such Will has been made.

The Court further determined that the o~iy debts of the Estate remaining to be

paid are current bills for which the fundi~'E;~c;;~~equate, that ' . . ".:._. . . ,. ":.

·-~~

ORDER PROBATING WILL AS MUNIMENT OF TITLE -1 there are no debts of the Estate secured by any property of the Estate, and that the subject Will contains no provision for which administration is needed or required. The Court determined, therefore, that there is no necessity or reason for administration of the Estate of Velma Ruth Fitzgerald, Deceased, and that it would serve the best interests of the Estate and the beneficiary of the Estate if the subject instrument is admitted to probate solely as muniment of title.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the subject instrument dated August 8, 2007, filed with the application for probate herein, is hereby admitted to probate as the Last Will and Testament of Velma Ruth Fitzgerald, Deceased , as muniment of title, and that said Will and application for its probate be recorded in the minutes of this Court.

The Court further determined that all terms of the subject Will have been fulfilled and that no terms of the Will remain unfulfilled, for which reasons the affidavit required by Section 89C(d) of the Probate Code is unnecessary.

IT IS THEREFORE ORDERED that the affidavit required by Section 89C(d) of the Probate Code to be filed by the applicant, Carlton N. Sewell, is waived.

This order shall constitute sufficient legal authority to all persons owing any money to the Estate of Velma Ruth Fitzgerald, Deceased, having custody of any property , or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right belonging to the Estate of Velma Ruth Fitzgerald, Deceased, and to persons purchas·ing from or otherwise dealing with the Estate of Velma Ruth Fitzgerald, Deceased, for payment or transfer, without liability, to Carlton N. Sewell, being the person described in the Will as entitled to receive the assets of the Estate, without administration . The said Carlton N. Sewell is entitled to deal with and treat all properties of the Estate in the same manner as if the record of title thereof were vested in his name .

SIGNED on January 15, 2008. •

Judge, County Court of Hop~ln TRUE Af\!D CORRECT

FILE~·· 1·-~:h~g~~~'~L

<~'Jt§f(ji{) COUNTY CLERK'S CFFICE ORDER PROBATING WILL AS MUNIMENT OF TITLE - 2

NO. P08 - 13,106

ESTATE OF § IN THE COUNTY COURT §

VELMA RUTH FITZGERALD, § DECEASED § HOPKINS COUNTY, TEXAS

APPLICATION FOR PROBATE OF WILL AND

FOR LETTERS TESTAMENTARY

TO THE HONORABLE JUDGE OF SAID COURT:

JANET NEAL STANLEY, applicant, for purpose of probating the written will of

VELMA RUTH FITZGERALD, deceased, and for issuance of letters testamentary,

furnishes the following information to the Court:

I.

Applicant is interested in this estate and is an individual residing at 608

Willowood Lane, Lancaster, Dallas County, Texas 75134.

II.

Decedent died on December 31, 2007, in Sulphur Springs, Hopkins County,

Texas, at the age of eighty six (86) years.

III.

This Court has jurisdiction and venue because deceased was domiciled and had a

fixed place of residence in this county at the time of death.

IV.

Decedent owned personal and real property is excess of $600,000.00.

,:,v.1 'f 0 "1t. ~o..,

TRUE AND CORRECT

.,

.~1'.;l!J-·~ .COPY OF ORIGINAL \~*. N * FILED IN HOPKINS 1 \p1:.,!EoF~.p COUNTYCLERK'S OFFICE

V.

Decedent executed a will dated April 26, 1993, a copy of which is attached to this

application as "Exhibit A".

The original of the April 26, 1993 will has not been located but is believed to

have last been in the possession of Carlton Sewell who is the applicant in a competing

application.

In that competing application, Carlton Sewell sponsors a will which applicant

herein together with other interested parties are contesting.

VI.

Decedent's will named your applicant's mother, Sue Neal, as independent

executrix and Woodrow Wells as an alternate. Sue Neal is incapacitated and Woodrow

Wells is deceased.

Applicant is willing to serve as Executrix, is not disqualified and is the choice of

the other interested devisees aligned with her.

VIL

As shown in "Exhibit A", an original of the April 26, 1993 will would be self-

proving if found. Absent that, applicant will prove that the will was executed by

Decedent.

VIII.

No child was born to or adopted by Decedent during her lifetime. Decedent was a

widow at the time of her death.

TRUE AND CORRECT COPY OF ORIGINAL FILED IN HOPKINS 2 COUNTY CLERK'S OFFICE

IX.

The names and addresses of the devisees and their relationships to Decedent are

as follows:

1. Thru the Bible Radio Network is an organized ministry located at 1095 East Green Street, Pasadena, California 91106.

2. Nicholas Ryan Maryol is a cousin of decedent who may be contacted in care of the law offices of Chad Cable, 323 Gilmer Street, Sulphur Springs, Texas 75482.

3. Crestview Baptist Church was an organized ministry located in Dallas, Texas, which may no longer exist.

4. Lillian Sewell was a cousin of decedent but is deceased. Under the terms of the will her share would pass to her issue, or the heirs of those children not surviving. Lillian Sewell's children or their respective heirs are as follows:

a) Carlton Sewell

107 Morris Drive Sulphur Springs, Texas 75482

b) Truitt Sewell

210 Sewell Lane Sulphur Springs, Texas 75482

c) Truman Sewell is deceased. His children are:

(1) Anita Counts

320 Craig Street Sulphur Springs, Texas 75482

(2) Troy Sewell

1032 N. Davis Street Sulphur Springs, Texas 75482

d) O.C. Sewell is deceased. His child is:

(1) Linda Dry

6700 Tenderfoot Ave. Firestone, CO 80504

e) Royce Sewell is deceased and had no children.

TRUE AND CORRECT COPY OF ORIGlf\JAL · FILED !NJ-iOPKINS 3 'COU!\JTY C r;' S CFFiCE 5. Sue Neal is a surviving cousin whose address is in care of Janet Neal Stanley, 608 Willowood Lane, Lancaster, Texas 75134.

6. Alleen Neal is a surviving cousin whose address is 2603 Lake Ridge Road, Red Oak, Texas 75154.

7. Woodrow Wells was a cousin of decedent but is deceased. His five children are:

a) Robert Wells

101 Lassater Red Oak, Texas 75154

b) Harold Wells

714 Wayne Lee Lancaster, Texas 75146

c) Tracy Wright

2241 Mont Claire Lancaster, Texas 75146

d) Cynthia Terr ell

920 Sycamore Lane Lancaster, Texas 75146

e) Nick Wells

101 Mabry Lane Red Oak, Texas 75154

8. Melanie Wells is a surviving cousin of decedent whose address is 6729 Lake Circle Drive, Dallas, Texas 75214.

x.

The original will provides that no action be had or taken by the Probate Court

other than probating the will and filing an inventory and appraisement of the estate and a

list of claims.

XI.

Neither Texas, nor any governmental agency of.Texas~ nor any charitable

organization is named in the will as a devisee.

WHEREFORE, applicant requests that citation be issued to all persons interested

in this estate as required by law, that the will be admitted to probate, that letters

testamentary be issued to applicant and that such other and further orders be made as the

Court may deem proper.

Respectfully submitted,

State Bar No. 03575300 323 Gilmer St. Sulphur Springs, Texas 755482 Telephone (903) 885-1500 Telecopier (903) 885-7501

Attorney for Applicant and Contestants

TRUE ANO CO COPY OF OF<lGil'~/\' FILED ll\J HOP:<' ,,-::; 5 COUf\rrv

" .

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. I EXHIBIT "A"

THE STATE OF TEXAS §

COUNTY OF DALLAS §

KNOW ALL MEN BY THESE PRESENTS: That I, VELMA RUTH FITZGERALD,

of Dallas County, Texas, being of sound and disposing mind and memory,

and above the age of eighteen (18) years, do hereby make, publish

and declare this to he my Last Will and Testament, and hereby revoke

all previous wills, if any, by me at any time heretofore made.

I.

It is my desire that all of my legal debts shall be paid in

full as soon as convenient by my Executrix without undue burden

upon my estate, provided that my said Executrix may renew and extend

any indebtedness owed by me if in her discretion it will be of benefit

to my estate.

II.

I give and bequeath the following special bequests:

1. $100,000.00 to the Thru the Bible Radio Network, 1095 East

Green Street, Pasadena, California 91106;

2. Subject to the Trust provisions of Paragraph V, $25,000.00

to NICHOLAS RYAN 1-"iARYOL to help with his cnllege education;

3. $10,000.00 to CRESTVIEW BAPTIST CHURCH, Dallas, Texas.

III.

All the rest and residue of my estate, real, personal or mixed,

of every chqracter, of which I may die seized and posses~sed, or

to which I may be entitled at or after my death, I hereby give,

devise and bequeath, in equal shares to LILLIAN. SEWELL, SUE NEAL,

ALEEN NEAL, WOODROW WELLS, and MELANIE WELLS, share and share alike, .;

provided that if any of my named devisees die before me leaving

issue surviving, then such deceased devisee's share shall be

distributed to his, her or their issue, such issue taking per stirpes

and not per capita.

IV.

If any beneficiary or beneficiaries under this Will, and I,

should die in a common accident or disaster, or under such

circumstances that it is doubtful which of us died first, or within

thirty (30) days of my death, then all of the provisions of this

Will shall take effect in like manner as if such beneficiary or

beneficiaries had predeceased me.

v.

In the event, NICHOLAS RYAN MARYOL has not reached to age

of eighteen (18) years, I hereby give, devise and bequeath the

portion of my estate herein bequeathed to him, to SUE NEAL, such

person to hold such estate as Trustee and manage and control same as a Trust Estate for NICHOLAS RYAN MARYOL, with all of

the rights and powers and subject to all the limitations

hereinafter enumerated for the following uses and purposes:

A. I direct my Trustee from the income of such Trust, and so far as necessary from the principal thereof, to provide for the heal th and welfare of the beneficiary of such Trust so created as bis needs dictate, such expenditures to be in the sole discretion of my said Trustee. Such expenditures may only be made in one of the following ways:

1) Directly to the person or organization furnishing the medical care or education for such beneficiary;

COPY OF 0Rlf.3ii\i/.i_ FILED IN HOPKINS COUNTY CLERK'S CFFlCE 2) To the natural guardian or legally appointed guardian based upon receipts for actual expenditures for the benficiary; or 3) Directly to such beneficiary.

B. I authorize and empower my Trustee to sell, exchange, assign, transfer and convey any security or property, real or personal, which is a part of such Trust Estate, at public or private sale, at such time and price and upon such terms and conditions, including credit, as my Trustee may determine. I further authorize my Trustee to incur such expenses or charges in the management of such Trust Estate as my Trustee shall see fit, and to pay taxes and other charges for governmental assessments.

C. Any Trust created herein shall be governed, by the provisions of the Texas Trust Act, in ef feet at my death, except as herein otherwise provided, and I hereby give, to the Trustee all of the authority and powers in administering the said Trust as is provided by said Texas Trust Act. The Tr us tee shall not be required to give bond for the management of the Trust, nor shal 1 the Trustee be 1 iable for any error of judgment, or for any acts done, or steps taken or omitted, under the advise of counsel, or for any mis take of fact or law, or for any thing my Trustee might do or refrain from doing in good faith.

D. The Tr us tee sh al 1 not recognize any transfer, mortgage, pledge, or assignment of any beneficiary by way of anticipation of income or principal. The income and principal of any Trust hereunder shall not be subject to transfer by ope~ation of law, and shall be exempt from the claims of creditors or other claimants, and from orders, decrees, levies, attachments, garnishments, executions, and other legal and equitable process or proceedings to the fullest extent permissible by law.

E. · The Trust shall continue during the lifetime of the beneficiary of such Trust, and until

It!-

COPY OF FILED INHOPKlf\JS COUNTY CLERK'S OFFICE he reached the age of eighteen (18) years, at which time, such Trust shall terminate, and the corpus and any accrued income shall be distributed to NICHOLAS RYAN MARYOL, or if he be deceased, to the devisees named in Paragraph III of this Will, to be determined as though I had died on the date of the termination of the Trust.

F. In the event SUE NEAL, shall at any time cease or be unable to serve as Trustee, I appoint DAVID MARYOL as Substitute Trustee, hereby granting to him the same powers and limitations granted to my named Trustee.

VI.

If any beneficiary of this Will is under a legal disability,

my Executrix may make a distribution to that beneficiary in any

one or more of the following ways:

a. To such beneficiary directly; b. To the guardian or conservator of such beneficiary; c. To a relative of the beneficiary to be expended

by such relative on behalf of the beneficiary;

d. To a custodian selected by the Executrix :under

an applicable Uniform Gifts to Minors Act;

e. To a Trustee provided for by separate instrument;

or

f. By my Executrix expending the same directly for

the benefit of such beneficiary.

VII.

I hereby constitute and appoint SUE NEAL, as Independent

Executrix of this, my Last Will and Testament, and direct that no

/'/ ;:

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COPY OF OR:C3!NP1 FtLED IN HOPt(il\!S COUMTY CLER S C:-FFiCE bond or other form of security shall ever be required of her as

such, and that no other action shall be had in the County Court

in relation to the settlement of my estate, other than the return

of statutory inventory, appraisement and list of claims of my estate.

I specifically authorize and empower my said Executrix to sell,

dispose of, deliver and convey any portion of my estate, real or

personal, at public or private sale for any price, on such terms

and in such manner as may to her seem best.

In the event SUE NEAL, shall not survive me, or in the event

she shal 1 fa i 1 to qualify as Independent Executrix hereunder, or

having qualified shall die or resign, then in such event, I do hereby

appoint WOODROW WELLS, as Substitute Independent Executor, hereby

granting to him the same powers and immunities as hereinabove granted

to my named Executrix.

THIS I MAKE AND PUBLISH as my Last Will and Testament, hereunto

subscribing and signing my name, this the~ day of April, 1993.

L~_u_RUTII

/ ;{';,'# ,~Md'.l'',;f/

FI ZGE · D

This and the foregoing four (4) page typewritten instrument

was now here published as her Last Will and Testament, and signed

and subscribed by VELMA RUTH FITZGERALD, Testatrix, in our presence,

and we, at her request, and in her presence, and in the presence

of each other, sign and subscribe our names thereto as attesting

witnesses.

7));_-/~oz-'4-.LJ'&JU-AJcUZ/a-o,. di/ 7J -,::1 t. 1 !'

,DI .-ikt!!4t:__,,-o · -- 7J- :J_ C) J,/

THE STATE OF TEXAS §

COUNTY OF DALLAS §

BEFORE ME, the undersigned authority, on this day personally appeared VELMA RUTH FITZGERALD, Betty Stanton, and Kathy Dunlap, known to me to be the testatrix and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and all of said persons being by me duly sworn, the said VELMA RUTH FITZGERALD, testatrix, declared to me and to the said witnesses in my presence that said instrument is her Last Will and Testament, and that she had wi 11 i ngly made and executed it as her free act and deed; and the said witnesses, each on their oath stated to me, in the presence and hearing of the said testatrix, that the said testatrix had declared to them that said instrument is her Last Will and Testament, and that she executed same as such and wanted each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of the said testatrix and at her request; that she was at that time eighteen years of age or over (or being under such age, was or had been lawfully married, or was then a member of ·the armed forces of the United States or of an auxiliary thereof or of the Maritime Service) and was of sound mind; and that each of said witnesses was then at least fourteen years of age.

ELMA RUTH FITZG LD,Testatrix

WITNE v

Ko~ WITNE

fl,t

Subscribed and FITZGERALD, Testatrix, Dunlap, witnesses, this

NO. P08 - 13,106

ESTATE OF § IN THE COUNTY COURT §

VELMA RUTH FITZGERALD, § DECEASED § HOPKINS COUNTY, TEXAS

OPPOSITION TO PROBATE OF WILL

r·

TO THE HONORABLE JUDGE OF SAID COURT:

~-· i

TRUITT SEWELL, joined herein by Sue Neal, Melanie Wells, Robert-Wells,

Harold Wells, Tracy Wright, Cynthia Terrell, Nick Wells, Alleen Neal, Nicholas Maryol,

Anita Counts and Troy Sewell, all for the purpose of opposing the application for probate

of the will of VELMA RUTH FITZGERALD, dated August 8, 2007, as a muniment of

title, filed by Carlton Sewell, proponent, in this Court on January 2, 2008, furnish the

following information to the Court:

I.

Contestants are persons interested in the estate of VELMA RUTH

FITZGERALD, in that contestants are devisees under a will dated April 26, 1993, of

VELMA RUTH FITZGERALD, deceased.

II.

The allegations in proponent's application for probate setting forth: (1)

deceased's name, age, and domicile; (2) the fact, date, and place of deceased's death; (3)

the facts showing jurisdiction and venue; and (4) the description and probable value of

the property owned by deceased at the time of death, ar~ admitted by contestants and are

adopted and made part of this opposition.

T,=-~UE Af·,JD CORRECT COPY OF ORIGiNAL FILED IN HOPKINS 1 COUNTY CLERK'S GFFICE

III.

Excepting the matters stipulated in Paragraph II, contestants deny generally the

allegations contained in proponent's application for probate and demand strict proof by a

preponderance of the credible evidence.

IV.

The instrument dated August 8, 2007, filed in this Court along with the

application for probate on January 2, 2008, and purporting to be the last will and

testament of VELMA RUTH FITZGERALD, deceased, is not a lawful and valid will of

VELMA RUTH FITZGERALD, deceased, and it should not be admitted to probate.

V.

On the date of the alleged execution of the purported will of August 8, 2007,

VELMA RUTH FITZGERALD lacked the testamentary capacity required by law to

make a valid last will and testament in that she lacked the ability to know and understand

the business in which she was engaged, the effect of the act of making a will, the objects

of her bounty and their claims upon her, and the general nature and extent of her

property. Nor on that date did the deceased have sufficient memory to collect in her

mind the elements of the business to be transacted and to hold them long enough to

perceive at least their obvious relation to each other and to be able to form a reasonable

judgment as to them.

VI.

The instrument dated August 8, 2007, was executed as the result of undue

influence exerted over the deceased by Carlton Sewell and his agents. Influence existed

and exerted, that influence effectively operated so as to subvert or overpower the mind of

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·~°-<> E ANO CORRECT "*

.'~l~ ·: ,~0f:. .,.

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C.OPY OF ORIGINAL FILED JN HOPKINS

2

'v!· cl-~ CQI '-'1.?:°2f'" Uf\JTY CLEW<'S CFFICE the deceased at the time of the execution of the instrument in question, and the deceased

would not have executed that instrument but for that influence. This undue influence was

exercised in the following manner:

The evidence will show that Carlton Sewell and his agents were systematically

engaged in gaining psychological control of the Decedent through a scheme of telling

Decedent untrue statements concerning her family members, the nature of her estate and

her living circumstances.

By sequestering the Decedent from her other family members and even, on two

occasions, physically threatening and assaulting other family members, Carlton Sewell

prevented contact with the Decedent that might have endangered his goal of absconding

with the estate.

Contestants will show that in furtherance of his greedy plan, Carlton Sewell

utilized the Decedent's power of attorney to convert certain of Decedent's assets to his

own benefit prior to Decedent's death.

VII.

Contestants have joined in the filing of Decedent's true and lawful will dated

April 26, 1993, along with this opposition and respectfully request the admission to

probate of that will contemporaneous with setting aside the offending will.

WHEREFORE, Contestants request that upon trial hereof the instrument offered

by proponent Carlton Sewell be set aside, and that in the interim the Order Probating Will

as a Muniment of Title be withdrawn.

Contestants pray for such other and ¥her relief as the Court may deem proper.

THUE AND CORRECT COPY OF ORIGINAL FILED IN HOPKINS 3 COL) S CFFICE

Respectfully submitted,

Chad Cable State Bar No. 03575300 323 Gilmer St. Sulphur Springs, Texas 755482 Telephone (903) 885-1500 Telecopier (903) 885-7501

Attorney for Contestants =============================;;~;;=~;=;~================================= II ~~ ============================================================================ &'~IJI TO ALL PERSONS interested in the estate of FITZGERALD, VELMA RUTH DECD STANLEY, JANET NEAL has filed in the County Court of Hopkins County, an application for the Probate of the Last Will and Testament of said FITZGERALD, VELMA RUTH DECD said will filed

I

on 30th day of January , 2008 with said application, and for Letters Testamentary.

The file number of such application and the Probate Docket Number ~ being No. P08-13106.

ALL PERSONS interested in said estate ARE CITED TO APPEAR in the County Court of Hopkins County, Texas, in the Courthouse thereof at or before 10 o'clock a.m. on the first Monday after service is perfected by the completion of such posting, which is the 11th day of February , 2008 to contest said application if they desire to do so, by filing opposition in writing. The name and address of the attorney for applicant, or the address of applicant is:

CHAD CABLE 323 GILMER STREET

SULPHUR SPRINGS, TX 75482

The officer executing this citation shall post the copy of this Citation at the Courthouse door of. the County in which this proceeding is pending, or at the place in or near sai.dcourthouse where public notices customarily are posted, for not less'than lOdays before the return day thereof, exclusive of the date of posting ahd return the original copy of this Citation to the Clerk stating i.n a written return thereon the time and place where he posted such copy ..

GIVEN UNDER MY HAND AND OFFICIAL SEAL, at Sulphur Springs, Texas 31st day of January 2008 .

V:J

DEBBIE SHIRLEY, COUNTY CLERK I"" !II f! ,/i!! ~~ ADDRESS · OF CLERK:

DEPUTY

P. 0. BOX 2 8 8

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--. , ;:~J:f!

SULPHUR SPRINGS, TX 75483 1::;> ~,

SHERIFF'S RETURN · 2; _:~7fj Came to hand on 1-30-2008 at 4~/I o'clock, _£_ M. and executed on

1-30-2008, by posting a copy of the within Citation for ten days, exclusive of the day of posting, before the return day hereof. At the place in or near the Courthouse of Hopkins County, Texas, where public notices customarily are posted.

,~o'° TRUE AND CORRECT · ~~ COPY OF ORIGINAL CHARLES (BUTCH) ADAMS, SHERIFF

~;))i{r;J''i~: ~~EL~~~~~~~~~~\'S OFFICE H~~ B, EPUTY /):>;~ o JY / X

-;; l /i/ i-0I l )/ l

CAUSE NO. if 1 ,I ( \ -- I ....J v',r

IN THE ESTATE OF ) IN THE COUNTY COURT ) ) ) ) HOPKINS COUNTY, TEXAS

ORDER OF TRANSFER

>-

0ntlfe14th day of February, 2008, the County Court of Hopkins County

Texas transfers the above-entitled cause to the County Court at Law for the purpose

of hearing any and all contested matters.

Judge A!J'y SMith

.,...Cl 'C !l\'.JL_ AND··.

I ro· RRECT

v

SOPY OF ORIGINAL FILED IN HOPKINS COUNTY CLERK'S OFFICE

Ff LED F

NO. POS-13,106 ', '

nnR Fen Z..,_.;JU LO 1L

PM Li= 09

~

ESTATE OF § IN THE COUNTY COURT

VELMA RUTH FITZGERALD, § § L •. L:'i:;: :~. /~{iRk'·.

DECEASED § HOPKINS COUNf,r,TEXAS ricnp~·-

---:::-·------ tit_,- i_J ! y

OPPOSITION TO APPLICATION FOR PROBATE OF WILL AND FOR LETTER TESTAMENTARY AND

ANSWER TO OPPOSITIDNTO PROBATE OF WILL

TO THE HONORABLE JUDGE OF SAID COURT:

CARLTON SEWELL, for the purpose of opposing the Application for Probate of Will and

For Letters Testamentary, filed January 30, 2008, by Janet Neal Stanley, and further for the purpose

of answering the Opposition to Probate of Will filed on January 30, 2008, by Truitt Sewell, et al,

furnishes the following information to the Court:

I.

Carlton Sewell is the Independent Executor named in the Last Will and Testament of Velma

Ruth Fitzgerald, executed by Ms. Fitzgerald on the 8th of August, 2008 1• Mrs. Fitzgerald passed

away on December 31, 2007. Application to pro bate the above referenced Last Will and Testament

was filed on January 2, 2008. The County Court for Hopkins County, Texas, hearing probate matters,

issued an order probating the will as a muniment of title on January 15, 2008.

II.

Citation was served and returned in the manner and for the length of time required by law,

and no objection to the subject application was made or filed.

III.

The Opposition to Probate of Will filed by Truitt Sewell, et al, was filed on January 30, 2008,

1 This will expressly revoked all prior wills,-fuciuding but not linlited to the will purportedly executed by the decedent on or about April 26, 1993, which the opposing parties sponsor and seek to have admitted to probate.

OPPOSITION TO APPLICATION FOR PROBATE OF WILL AND FOR LETTERS TESTAMENTARY , ~y.1'1 OF;;. TRUE AND CORRECT -PAGE 1-

(J~o,,., ;!( & .. , ~*

l~ COPY.OF ORIGINAL

FILED IN HOPKINS

'~oF~.f'. COUNTY CLER!<'S OFFICE

and was thus not timely filed and should be stricken. The Application for Probate of Will and For

Letter Testamentary filed by Janet Neal Stanley was also filed on January 30, 2008, and was thus

not timely filed and should be stricken.

IV.

Carlton Sewell denies the allegation that the decedent lacked testamentary capacity when she

executed the will which has already been ordered probated as a muniment of title. Further, Carlton

Sewell denies the slanderous allegation in the above-referenced parties' pleadings that Velma Ruth

Fitzgerald's last will and testament, dated August 8, 2008, was executed as the result of undue

influence exerted over the decedent by Carlton Sewell and his agents.

v.

Carlton Sewell prays for reimbursement of attorney's fees and costs as allowed under section

243 of the Texas Probate Code

WHEREFORE, Carlton Sewell requeststhattheoffendingwilloffered by Janet Neal Stanley

be set aside by virtue of the later executed will which revoked it and because such filing was

untimely. Additionally, Carlton Sewell requests that the Opposition to the Probate ofthe Will filed

by Truitt Sewell, et al, be set aside as being untimely filed and void. Carlton Sewell further prays for

such other and further relief as the Court may deem proper.

Respectfully submitted,

LAW OFFICE OF EDDIE NORTHCUTT P.O. Box 308 1331 South Broadway Sulphur Springs, Texas 75483-0308 Tel: (903) 885-7577 Fax: (90 85-7579

By~·':.p--_;_~__,..,,_.~+--d-~--=--'-"'-~~~~~-

Eddie No .cutt · State Bar No. 24 26456 Attorney for Defendant

OPPOSITION TO APPLICATION FOR PROBATE OF WILL

:_~.o TRUE AND CORRECT

AND FOR LETTERS TESTAMENTARY -PAGE2-

'( "'f'? )~ COPY OF ORIGINAL \ ~* FILED IN HOPKINS .J>~lioF'f0~ COUNTY CLERK'S OFFICE

CERTIFICATE OF SERVICE

I certify that on February 14, 2008 a true and correct copy of the Opposition to Application for Probate of Will and For Letters Testamentary and swer to 'Position to Probate of Will was served on Chad Cable by facsimile 903-885-750 / /, ,

OPPOSITION TO APPLICATION FOR PROBATE OF WILL AND FOR LETTERS TESTAMENTARY -PAGE3-

TRUE AND CORRECT COPY OF ORIGINAL FILED IN HOP!<INS cou~nY CL_ERK'S CFFICE

NO. P08 - 13,106

ESTATE OF § IN THE COUNTY COURT §

VELMA RUTH FITZGERALD, § DECEASED § HOPKINS COUNTY, TEXAS

t-....:>

AMENDED APPLICATION FOR PROBATE OF WILL:J.J = --n AND ~ ()

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FOR LETTERS TESTAMENTARY ; ,. ?O --n Pl I CJ li -<c;~!

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TO THE HONORABLE JUDGE OF SAID COURT: v ?::.rr ,...,.::::o :;<_o

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JANET NEAL STANLEY, applicant, for purpose of probating the written will of

VELMA RUTH FITZGERALD, deceased, and for issuance of letters testamentary,

furnishes the following information to the Court:

I.

Applicant is interested in this estate and is an individual residing at 608

Willowood Lane, Lancaster, Dallas County, Texas 75134.

IL

Decedent died on December 31, 2007, in Sulphur Springs, Hopkins County,

Texas, at the age of eighty six (86) years.

III.

This Court has jurisdiction and venue because deceased was domiciled and had a ·--~~ ......

fi)red_p!ace of residence in this county at the time of death.

·-~~

IV.

Decedent owned personal and real property is excess of $600,000.00.

TRUE AND CORRECT COPY OF ORIGINAL 1 FILED IN HOPKINS cc:; CLER'.<'S OFFICE

V.

Decedent executed a will dated April 26, 1993, a copy of which is attached to this

application as "Exhibit A".

The original of the April 26, 1993 will has not been located but is believed to

have last been in the possession of Carlton Sewell who is the applicant in a competing

application.

In that competing application, Carlton Sewell sponsors a will which applicant

herein together with other interested parties are contesting.

VI.

Decedent's will named your applicant's mother, Sue Neal, as independent

executrix and Woodrow Wells as an alternate. Sue Neal is incapacitated and Woodrow

Wells is deceased.

Applicant is willing to serve as Executrix, is not disqualified and is the choice of

the other interested devisees aligned with her.

VII.

As shown in "Exhibit A", an original of the April 26, 1993 will would be self-

proving if found. Absent that, applicant will prove that the will was executed by

Decedent.

VIII.

No child was born to or adopted by Decedent during her lifetime. Decedent was a

widow at the time of her death.

TRUE AND CORRECT COPY OF ORtGINAL 2 FILED !f\! HOPK!f\.!S

IX.

The names and addresses of the devisees and their relationships to Decedent are

as follows:

1. Thru the Bible Radio Network is an organized ministry located at 1095 East Green Street, Pasadena, California 91106.

2. Nicholas Ryan Maryol is a nephew of decedent who may be contacted in care of the Law Offices of Chad Cable, 323 Gilmer Street, Sulphur Springs, Texas 75482.

3. Crestview Baptist Church was an organized ministry located in Dallas, Texas, which may no longer exist.

4. . Lillian Sewell was an aunt of decedent but is deceased. Under the terms of the will her share would pass to her issue, or the heirs of those children not surviving. Lillian Sewell's children or their respective heirs are as follows:

a) Carlton Sewell

107 Morris Drive Sulphur Springs, Texas 75482

b) Truitt Sewell

210 Sewell Lane Sulphur Springs, Texas 75482

c) Truman Sewell is deceased. His children are:

(1) Anita Counts

320 Craig Street Sulphur Springs, Texas 75482

(2) Troy Sewell

1032 N. Davis Street Sulphur Springs, Texas 75482

d) O.C. Sewell is deceased. His child is:

(1) Linda Dry

6700 Tenderfoot Ave. Firestone, CO 80504

e) Royce Sewell is deceased and had no children.

TRUE ,A.ND CORRECT COPY OF ORIGlf\J.AL 3

4

5. Sue Neal is a surviving aunt whose address is in care of Janet Neal Stanley, 608 Willowood Lane, Lancaster, Texas 75134.

6. Alleen Neal is a aunt whose address is 2603 Lake Ridge Road, Red Oak, Texas 75154.

7. Woodrow Wells was an uncle of decedent but is deceased. His five children are:

a) Robert Wells

101 Lassater Red Oak, Texas 75154

b) Harold Wells

714 Wayne Lee Lancaster, Texas 75146

c) Tracy Wright

2241 Mont Claire Lancaster, Texas 7514~

d) Cynthia Terrell

920 Sycamore Lane Lancaster, Texas 75146

e) Nick Wells

101 Mabry Lane Red Oak, Texas 75154

8. Melanie Wells is a surviving cousin of decedent whose address is 6729 Lake Circle Drive, Dallas, Texas 75214.

X.

The original will provides that no action be had or taken by the Probate Court

other than probating the will and filing an inventory and appraisement of the estate and a

list of claims.

XL

Neither Texas, nor any governmental agency of Texas, nor any charitable

organization is named in the will as a devisee.

'''

WHEREFORE, applicant requests that citation be issued to all persons interested

in this estate as required by law, that the will be admitted to probate, that letters

testamentary be issued to applicant and that such other and further orders be made as the

Court may deem proper.

Respectfully submitted,

Chad Cable State Bar No. 03575300 323 Gilmer St. Sulphur Springs, Texas 755482 Telephone (903) 885-1500 Telecopier (903) 885-7501

Attorney for Applicant and Contestants

H~JE /-\ND CORRECT COPY OF ORiGiNAL 5 FILED IN HOPl<!NS rou-ru-rv C' t-ov·s 't,J \i 1 ~ .: LC. t'\(\ "'r-~· f-

C,1-~

NO. POS-13,106

ESTATE OF § IN THE COUNTY COURT § l· ·'·. _, :._ __ :\{\

VELMA RUTH FITZGERALD, § DECEASED § HOPKINS COUNTY,_TEMS

MOTION FOR WITHDRAW AL OF COUNSEL

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Movant, Eddie Northcutt, Attorney for Defendant, Carlton Sewell,

(hereinafter Defendant), and brings this Motion for Withdrawal ofCounsel, and in support thereof,

shows the Court the following:

I.

Good cause exists for withdrawal ofMovant as counsel because Movant is unable effectively

to communicate with Defendant. Defendant consents to the withdrawal of Eddie Northcutt as his

attorney of record.

II.

The settings and deadlines in this case are as follows: NONE.

III.

This Motion is not sought for the purposes of,delay, but that justice be done ..

IV.

A copy of this motion bearing the enclosed notice has been delivered to the last known

address of Defendant:

Carlton Sewell 107 Morris Dr. Sulphur Springs, TX 75482

v.

Defendant is hereby notified in writing of the right to object to this motion.

MOTION FOR WITHDRAWAL OF COUNSEL PAGEi :RUE AND CORRECT vOPY OF ORIGINAL ~uED . ~·... !f\.I HOPf<!f.IS c·· o ~; r-: .~/" -·-·-,_· · _. _.· S CFFICE

NOTICE

You are hereby notified that this Motion for Withdrawal of Counsel is set

for hearing at the time and place set out below. You do not have to agree to this

motion. If you wish to contest the withdrawal of Eddie Northcutt as your

attorney, you should appear at the hearing. If you do not oppose Eddie

Northcutt's withdrawal as your attorney, you may notify Eddie Northcutt in

writing of your consent to this motion.

WHEREFORE, PREMISES CONSIDERED, Movantprays that the Court enters an order

discharging Movant as attorney of record for Defendant, Carlton Sewell, and for such other and

further relief that may be awarded at law or in equity.

Respectfully submitted,

By:~~---'~~-++'--"'---~~--'-.¥-~~~~~~- Eddie Northcutt Texas Bar No. 026456 1331 South Broadway, Suite A P.O. Box 308 Sulphur Springs, Texas 75483-0308 Tel. (903) 885-7577 Fax. (903) 885-7579

CERTIFICATE OF SERVICE

I certify that on January~, 2009 a true for Withdrawal of Counsel was served by facsim· t ssi on J1"d correct copy of Eddie Northcutt's Motion 'J' Cable al 903-885-7501.

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;0~ TRUEAN

MOTION FOR WITHDRAWAL OF COUNSEL '/ .,. )~\ COPY OF ORIGINAL PAGE2

.!/'--- j,,*f FILED IN HOPKINS . ·.· TffY COUNTY CLERK'S OFFICE

f!LED

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NO. POS-13,106

ESTATE OF § IN THE cop~J7'Y COURT §

VELMA RUTH FITZGERALD, § DECEASED §

CONSENT TO WITHDRAWAL OF COUNSEL

My name is Carlton Sewell. I hired Eddie Northcutt in February of2008 to represent me in this case. Mr. Northcutt and I have recently come to a mutual agreement to sever our legal services agreement. I have picked up my entire litigation file from Mr. Northcutt and we have settled our financial arrangement in full.

I consent to the withdrawal of Eddie Northcutt as my attorney ofrecord in this case.

Dated thec1 l day of January, 2009.

1 '~.

CARL~

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_,\10 .._, 0,,,RFC',.,..

_._,'

,f· ORIGINAL

'::IL _ . IN HOPK\NS _ COUNTY CLERK'S _CFFICE

NO. POS-13,106

ESTATE OF § IN THE COUNTY COURT §

VELMA RUTH FITZGERALD, § DECEASED §

ORDER GRANTING MOTION FOR WITHDRAWAL OF COUNSEL

j__,2009, the Court considered the Motion for Withdrawal On _ _ _ _ _ _---'-/_---"J'-. . .

of Counsel by Movant Eddie Northcutt.

The Court finds that:

1. Good cause exists for withdrawal of Movant as counsel and withdrawal of Movant

is not sought for delay only.

2. Defendant consents to the withdrawal of Eddie Northcutt and the court finds that no

party incurs a detriment by allowance of this motion.

3. The current settings and deadlines are:

NONE.

IT IS THEREFORE ORDERED that Movant is permitted to withdraw as counsel ofrecord

for Defendant and ORDERED that all notices in this cause shall hereafter be served on Defendant

either delivered in person or sent by certified and first class mail to the address in the motion.

IT IS FURTHER ORDERED that Eddie Northcutt, Movant, immediately notify Defendant

Carlton Sewell in writing of any additional settings or deadlines of which Eddie Northcutt now has

knowledge and has not already notified Defendant.

ORDER GRANTING WITHDRAWAL OF COUNSEL -PAGE 1-

FILED!'•: -tr;: · c~J'.._: ,ls CFFIC:E

I .. ') •2._

SIGNED on _ _ ___,_/_·-__,/,.__?,\_,_.~)_ _ _ _, 2~

I ;

1

JUDGE

APPROVED AS TO FORM:

Eddie Northcutt Attorney for Carlton Sewell 1331 South Broadway, Suite A P.O. Box 308 Sulphur Springs, Texas 75483-0308 Tel: (903) 885-7 577 Fax: (903) 885-7579

Chad Cable Attorney for Truitt Sewell, et all 858 Gilmer Street Sulphur Springs, Texas 75482 Tel: 903-885-1500 Fax: 903-885-7501

ORDER GRANTING WITHDRAW AL OF COUNSEL -PAGE2-

;····:·:_·:··,-·

. -. ( . ; __ ·... ·-

NO. P08 - 13,106

ESTATE OF § IN THE COUNTY COURT ..

§ ';

VELMA RUTH FITZGERALD, § DECEASED § HOPKINS COUNTY,TEXAf y

MOTION FOR APPOINTMENT OF INDEPENDENT EXECUTOR

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES CHAD CABLE, counsel for the family members contesting the

probate application filed by Carlton Sewell in the above styled and numbered proceeding,

requesting relief as follows:

1. CURRENT PROCEDURAL POSTURE

Carlton Sewell sponsored a will as a muniment of title.

Movants have filed an application and sponsor an earlier will.

Discovery is in progress and could be completed soon.

Carlton Sewell's counsel has withdrawn and there is no substitute at this time.

2. INDEPENDENT ADMINISTRATION IS NECESSARY

The estate owns a farm in Wilbarger County, Texas. A long time tenant,

presumably agreeable to both sides, must have an authorized representative in place in

order to access federal funds available through the Farm Service Agency.

Time is of the essence. Without the federal subsidy the tenant and the estate will

be harmed.

TRUE AND CORRECT COPY OF ORIGINAL l FILED IN HOPKINS COUNTY CLERK'S OFFICE

WHEREFORE, PREMISES CONSIDERED, Movants request the appointment of

an Independent Executor authorized to conduct the affairs of VELMA RUTH

FITZGERALD pending the outcome of this will contest litigation ..

Respectfully submitted,

State Bar No. 03575300 323 Gilmer St. Sulphur Springs, Texas 755482 Telephone (903) 885-1500 Telecopier (903) 885-7501

Attorney for Applicant and Contestants

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing instrument has been served on Carlto~ewell, pro se, in accordance with the Texas Rules of Civil Procedure, on this / Z day of May, 2010.

x Certified mail/Return receipt requested Telecopier (fax) Federal Express Courier with Receipt Registered mail/Return receipt requested Regular Mail Personal Hand Delivery

1/2 ~010.

1

~

Date: May

Chad Cable \

TRUE Al'JD CORRECT COPY OF ORIGINAL FILED IN HOPKINS COUNTY CLEFU<'S CFF!CE

No. POS-13106

IN THE ESTATE OF § IN THE COUNTY COURT §

VELMA RUTH FITZGERALD, § OF §

DECEASED § HOPKINS '

COUNTY, TEXAS . .. . . .

.. ~ :_. ' ..

ORDER ON MOTION TO TRANSFER CONTESTED PROBATE MATTER · .

On this day the Court considered the Motion to Transfer Contested Probate Matter in the

above-styled and numbered cause. After due consideration of the Motion, this Court is of the

opinion that said Motion should be GRANTED.

IT IS THEREFORE ORDERED that this matter, and the original file, together with

certified copies of all entries in the judge's probate docket theretofore made, be transferred to County

Court at Law, Hopkins C~u~ ~ A SIGNED this 20 day of Ir~- 2010.

.

"\ ,

.

.

Order on Motion to Transfer Contested Probate Matter Page Solo

TRUE AND CORRECT COPY OF ORIGINAL FILED IN HOPKINS COUNTY CLERK'S CFFICE

No. POS-13106

IN THE ESTATE OF § IN THE COUNTY COURT1ATLAW ,_ "··..· ... ' "

:~ '· . ',; ·~-

§

VELMA RUTH FITZGERALD, § QI?

... :.

§

DECEASED § HOPKINS COUNTY, TEXAS

ORDER APPOINTING PERSONAL REPRESENTATIVE (TEMPORARY)

PENDING CONTEST

On this day the Court heard the Motion for Appointment of Personal Representative

(Tempora1y) Pending Will Contest in the above-styled and numbered cause. The Court, after

hearing the evidence and reviewing the documents, and the arguments of counsel finds that

VELMA RUTH FITZGERALD is deceased; four (4) years have not passed since the death of

Decedent; that the Court has jurisdiction and venue over this Estate; that a contest has been filed

by Truitt Sewell, et al. ("Contestants") as to Decedent's Will dated August 8, 2007, which Will

has been admitted to probate as a Muniment of Title in the'above-styled and numbered cause;

that on or about Januruy 30, 2008, Contestants filed their Opposition to Probate Will and the

Proponent of the alleged Will dated April 26, 1993; that Movant herein filed a Motion for

Appointment of Personal Representative (Temporary) Pending Will Contest on or about May 12,

2010; that the parties have agreed that Lany Phillip Morgan be appointed to serve as Temporary

Administrator Pending Contest of VELMA RUTH FITZGERALD's Estate, that Larry Philip

Morgan would be suitable to serve as Temporary Administrator Pending Contest and is not

disqualified from acting as such and should be appointed as Temporary Administrator Pending

Contest of Decedent's Estate.

It is therefore, ORDERED that Larry Phillip Morgan, is hereby appointed Ternporaty

Administrator Pending Contest ("Temporary Administrator") pursuant t; Texas Probatq Code _1 _•••: --

Order Appointing Temporary Administrator Pending Contest Page 1 ::s~ TRUE AND CORRECT 'v;::r)'%. COPY OF ORIGINAL . 'W : FILED IN HOPKINS c·c\<::Y' COUNTY CLERK'S CFFICE

2010-05-20 13:08 CHRCH STREET 903 885 1385 Page2

Sections 131A - 133, of the Estate.

It is fmther ORDERED that the Temporary Administrator shall have all rights, powers

and authority to act as a temporary dependent administrator of a Decedent's Estate under the

Texas Probate Code with the powers and authority granted under Section 133 of the Texas

Probate Code as set fo1th in the attached Exhibit "A".

It is fmther ORDERED that the Clerk shall give such notice as required by law and issue

Letters of Temporary Administration to Larry Phillip Morgan within three (3) days after

Temponuy Administrator has qualified according to law.

It is further ORDERED that appointment as Temporary Administrator shall remain in

effect for 180 days from date hereof unless hereafter modified by order of this Court.

It is further ORDERED that, by agreement of the parties, bond is waived and no bond

shall be required of the Te1upcfary Administrator.

SIGNED this'),~ day of_-1--J.c~-+----' 2010. /J

JUDGE PRE

Chad Cable 323 Gilmer A venue Sulphur Springs, TX 75482 903.885.1500 Attorney for Contestants

Order Appointing Temporary Administrator Pending Contest Page2

TRUE AND CORRECT COPY OF ORIGlhlAL Fil.ED !N HOPKINS COUf\lTY Ci r<K'S OFFICE .2010-05-20 13:08 CHRCH STREET 903 8851385 Page3

EXHIBIT "A"

POWERS AND AUTHORITY

The powers and authority of the Temporary Administrator, Larry Phillip Morgan, are limited to:

Administration of the real estate owned by the estate in Wilbarger County, Texas, including but not limited to supervising farm leases and handling tenant affairs such as approving USDA/FSA documents as might be necessary for lessees of the estate to participate in government agricultural programs.

TRUE AND CORRECT COPY OF ORIGINAL FIL.ED If\! HOPKINS

1 1 ;·~ 1' CLERK'S CFFICE

No. POS-13106

IN THE ESTATE OF § IN THE COUNTY COURT AT LAW §

VELMA RUTH FITZGERALD, § OF §

DECEASED § HOPKINS COUNTY, TEXAS

NOTICE OF APPEARANCE AND REQUEST FOR NOTICES AND SERVICE OF PAPERS

PLEASE TAKE NOTICE that Frank Bauer files this Notice of Appearance and Request

for Service of Notices and Papers and enters this appearance as counsel for Carlton Sewell,

Movant, in the above-entitled and numbered cause and respectfully requests that all notices

given or pleadings required to be given in these proceedings and all papers served or required

to be served in these proceedings, be served upon:

FRANK BAUER P. 0. Box207 Sulphur Springs, Texas 75483

Respectfully submitted,

;._;-" . . ··'--··· G.~q_;

Frank Bauer

f:r;_~~

State Bar No. 01920600 P.O. Box207

. ·' ·:.:i

!, • Sulphur Springs, TX 75483-0207 (903) 439-6224 Telephone (903) 885-1385 Facsimile Attorney for Carlton Sewell

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing was forwarded to by electronic transmission where available, facsimile or U.S. Mail to the following or flue _i_, 2010, to the following: - . -0

Chad Cable, 858 Gilmer, Sulphur Springs, TX 'R_~2 (903.885.7501) 2x (/') }'-~.! ~ ~~ Frank Bauer ·

Notice of Appearance -i-:::;· U•-a_ c A''1\f~J ,,, .~. n 1=-\L..

.." (,.1V;"\. i:: C"'

1 "- a Page Solo COPY OF ORIGINAL FILED IN HOPKINS COUNTY CLERK'S OFFICE

FRANCIS X. BAUER

Attorney at Law

BOARD CERTIFIED 430 CHURCH STREET 903-439-6224 Telephone ESTATE PLANNING & PROBATE LAW 903-885-1385 Facsimile TEXAS BOARD OF LEGAL SPECfALfZATfON PosT OFFICE Box 207 fbauer@easttexasattorneys.com SULPHUR SPRINGS, TEXAS 75483

August 10, 2010

Debbie Shirley, County Clerk Hopkins County Courthouse P.O. Box 288 Sulphur Springs, TX 75483

Re: Cause No. P08-13106; In The Estate of Velma Ruth Fitzgerald, Deceased; in the County Clerk, Hopkins County, Texas

Dear Clerk:

Enclosed please find an original and one (1) copy of Affidavit with attachment to be filed in the above-referenced file. Please return a file-stamped copy in the pre-posted envelope enclosed.

By copy hereof, Chad Cable is receiving the within document.

Yours truly,

FXBlbr Encs. c: w/Encs.: Chad Cable

TRUE AND CORRECT COPY OF ORIGINAL FILED IN HOPKINS COUNTY CLERK'S CFFICE

No. POS-13106

IN THE ESTATE OF § IN THE COUNTY COURT AT-bAW ,.·_<:: iI

§

VELMA RUTH FITZGERALD, § OF §

DECEASED § HOPKINS COUNTY, TEXAS,_ ·- - ':·.--,./ :_.· ! <

AFFIDAVIT

BEFORE ME, the undersigned authority, on this day personally appeared Frank Bauer,

who, upon oath, stated to me as follows:

"My name is Frank Bauer. I am over the age of eighteen years, am of sound mind and memory, having never been convicted of a felony, and, state as follows:

"I am competent to make this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.

"In accordance with Chapter 123 of the Texas Probate Code, attached hereto as Exhibit "A" is a copy of a letter to the Office of the Attorney General, State of Texas, Charitable Trust Section of the Consumer Protection Division, which letter complies with the requirements of Chapter 123 of the Texas Probate Code.

"This Affidavit is made for the purpose of filing in the above-referenced probate proceeding this document as evidence of compliance with Chapter 123, Texas Probate Code."

Further, Affiant sayeth naught.

SIGNED August~, 2010.

Frank Bauer, Affiant

BEFORE ME, the undersigned authority, appeared Frank Bauer, who, on oath stated the within document is true and correct to the best of his knowledge on August f__il_, 2010.

-, _;E Af\JD CORRECT ~OPY OF ORIGINAL FILED !N HOPl<lf\JS COUNTY CLERK'S CFFICE

FRANCIS X. BAUER

Attorney at Law

BOARD CER11FIED EsTATE PLANNING & PROBATE LAW 430 CHURCH STREET 903-439-6224 Telephone TEXAS BOARD OF LEGAL SPECIALIZATION PosT OFFICE Box 207 903-885-1385 Facsimile fbauer@easttexasattorneys.com SULPHUR SPRINGS, TEXAS 75483

August 10, 2010

Office of the Attorney General Attn: Charitable Trust Section of the Consumer Protection Division P.O. Box 12548 Austin, TX 78711-2548

Re: Cause No. P08-13106; In the Estate of Velma Ruth Fitzgerald, Deceased; in the County Court at Law, Hopkins County, Texas

Gentlemen:

The undersigned has recently been retained as counsel for Carlton Sewell in the above-

styled and numbered cause.

Enclosed herewith are copies of the following:

1. The Last Will and Testament of Velma Ruth Fitzgerald dated August 8, 2007; 2. The Order Admitting that Will to probate as a muniment of title on or about January 30, 2008;

3. Contestants'(Truitt Sewell, et. al.) Opposition to Probate of Will; 4. Application for Probate of Will and for Letters Testamentary in which Janet Neal Stanley is the Applicant; and 5. Opposition to Application for Probate of Will and For Letters Testamentary and Answer to Opposition to Probate of Will filed on behalf of Carlton Sewell.

As may be obvious, Mr. Northcutt has withdrawn his representation of Carlton Sewall and the undersigned has recently filed a Notice of Appearance.

I have not been apprised that your office had previously been provided with notice pursuant to Chapter 123 in this matter. The County Clerk's file does not have an Affidavit of Compliance.

Please contact the undersigned if you have any questions.

TRUE AND CORRECT

COPY OF OR!G!i'JAL

rr1i "-"'"-·/' ..

\

August 10, 2010 Page 2

Yours truly,

FXBlbr Encs. c w/Encs.: Client

Chad Cable 858 Gilmer Sulphur Springs, TX 7 5482

\..J E:_ . COPY OF ORIGii'J/\l FILED IN HOPKINS COUNTY CLERK'S OFFICE

FRANCIS X. BAUER

Attorney at Law

BOARD CERTIFIED 903-439-6224 Telephone 430 CHURCH STREET

ESTATE PLANNlNG & PROBATE LAW 903-885-1385 Facsimile TEXAS BOARD OF LEGAL SPECIALIZATION PosT OFFICE Box 207 fbauer@easttexasattorneys.com SULPHUR SPRINGS, TEXAS 75483

August 11, 2010

Debbie Shirley, County Clerk Hopkins County Courthouse P.O. Box 288 Sulphur Springs, TX 75483

Re: Cause No. P08-13106; In The Estate of Velma Ruth Fitzgerald, Deceased; in the County Clerk, Hopkins County, Texas

Dear Clerk:

Enclosed please find an original and one (1) copy of Certificate of Written Discovery to be filed in the above-referenced file. Please return a file-stamped copy in the pre-posted envelope enclosed.

By copy hereof, Chad Cable is receiving the within document.

FXBlbr Encs. c: w/Encs.: Chad Cable

TRUE AND CORRECT COPY OF ORIGINAL FILED IN HOPKINS :'. . . . n' .-r. ~":l-v -.. '..,..,t_;i' 1 • ,: LLERK'S CFFICE

No. POS-13106

FILED FOR. RECORDv

r; f ·.'-;- 'l

' '_. .,, C· ~../ 1 U i ... (' ~ -i- r- ~ i"

IN THE ESTATE OF § IN THE COUNTY COURT'}., .J j - : ,, I t.ru-'.,';

§ zmo WG I 2 A !O: 5LI VELMA RUTH FITZGERALD, § OF § D~EE;!~ ::.!ll.-{l_EY DECEASED § HOPKINS COUNTY, TEX~Sll y CLEfM :.;y________ OEPUTY

CERTIFICATE OF WR1TTEN DISCOVERY DIRECTED TO CHAD CABLE

CARLTON SEWELL files this Ce11ificate of Written Discovery directed to Janet Neal

Stanley and Truitt Sewell c/o Chad Cable. Such discovery was forwarded to Chad Cable on or

about .lune 7, 2010.

Request for Production; and

fnterrogatories

FRANK BAUER files this Certificate of Written Discovery directed to Jan et Neal Stanley

and Truitt Sewell c/o Chad Cable. Such discovery was forwarded to Chad Cable on or about

August 11, 2010.

Request for Disclosure.

Respectfully subrnitte

~~c_~ Frank Bauer Texas Bar No. 01920600 P.O. Box 207 Sulphur Springs, Texas 75483-0207 Tel. (903)439.6224 Fax. (903)885.1385 Attorney for Carlton Sewell

Defendant's Cc1·tificatc of \Vrittcn Discovery Page 1 TRUE AND CORRECT COPY OF ORIGINAL FILED IN HOPKINS COUNTY CLERK'S CFFICE ~ .,

CERTIFICATE OF SERVICE

J certify that on August 11, 2010, a true and c01Tect copy ofDefendant's Certificate of Written Discove1y was served to each person listed below by the method indicated.

Sara Hardner Leon, Powell & Leon, LLP, 1706 W. 6' 11 St., Austin, TX 78703-4703.

Frank Bauer

Defendant's Certificate of \Vritten Discovery Page 2

No. POS-13106

IN THE ESTATE OF § §

VELMA RUTH FITZGERALD, § OF §

DECEASED § HOPKINS COUNTY~ TEXAS------'~'~;:_-: Y

SUPPLEMENT TO OPPOSITION

FOR PROBATE OF WILL AND FOR LETTERS TESTAMENTARY AND ANSWER TO OPPOSITION TO PROBATE OF WILL

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, CARLTON N. SEWELL, and in Supplement to his Opposition for

Probate of Will and for Letters Testamentary and Answer to Opposition to Probate of Will,

would show unto the Court the following:

I.

The Last Will and Testament of Decedent, dated August 8, 2007, has been admitted to

probate as a Muniment of Title in the above-styled and -numbered cause. The Last Will and

Testament of Velma Ruth Fitzgerald dated August 8, 2007, states, in part, that it "hereby revoke

all previous wills, if any, by me at any time heretofore made." Pleading further, in the

alternative, attached hereto and incorporated by reference is the original April 26, 1993, Will

executed by Decedent which was physically revoked by Decedent and cam1ot be revived.

WHEREFORE, CARLTON N. SEWELL prays that probate of Decedent's April 26,

1993, Will be denied probate and for such other and further relief to which he may be entitled.

Supplement to Opposition for Probate of Will and For Letters Testamentary and Answer to Opposition to Probate Will Page 1

Respectfully submitted,

f~ ~ fl ".:::, (___~ l~<-A-"-''2- -~ ~

,1)---:::.x . . , ---

Frank Bauer SBN 01920600 P.O. Box 207 Sulphur Springs, TX 7 5483 903.439.6224 903.885.1385 Facsimile Attorney for Carlton N. Sewell

CERTIFICATE OF SERVICE

On this the 25th day of August, 2010, all counsel ofrecord received copies of the within document via facsimile or U.S. Mail, to-wit:

Chad Cable, 858 Gilmer, Sulphur Springs, TX 75482, 903.885.7501; Attorney General of Texas; Consumer Protection & Public Health Divsiion, Charitable Trusts Section, P.O. Box 12548, Austin, TX 78711-2548; 512.322.0578;

Bible Radio Network, 1095 E. Green St., Pasadena, CA 91106-2503; Cockrell Hill Baptist Churth, flea Crestview Baptist Church, 1128 S. Cockrell Hill Rd., Dallas, TX 75211-6210.

FRANK BAUER

Supplement to Opposition for Probate of Will and For Letters Testamentary and Answer to Opposition to Probate Will Page 2

THE STATE OF TEXAS § COUNTY OF DALLAS § KNOW ALL MEN BY THESE PRESENTS: That I, VEI..MA RUTH FITZGERALD,

of Dallas County, Texas, being of sound and di~posing mind and memory,

I

l

and above the age of eighteen (18) years, /do hereby make, publish /

and declare this to be my Last Will and Te.stament, and hereby revoke

all previous wills, 'if any, by me at any time heretofore made .

.!

!

\\ I. / It is my desire tbat all of my ;legal debts shall be paid in "· I full as soon as conveni\~t by my"Executrix without undue burden upon my estate, provided tqat my said Executrix may renew and extend

1

\ I any indebtedness owed by me lif

I

ip her

i

discretion it will be of benefit

to my estate. f ! ',.,._:

I ;·<

\ / II.

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J

c

I give and bequeath the/tollowing special bequests: / r•,J i \. ! '" ....... ' l / i::~..: ·. i,_.I:

1. $100, 000. 00 to the Thr!u !

\:he \

Bib le Radio Network, 1095;.,... r:Eas.t ~·.::: ... .J.>

~

J \ : -: ;:::; ••

Green Street, Pasadena/ Cal\fornia 91106;

2. Subject to the Trust/ provi\~'ii.ons of Paragraph V, $25, 000. ~~ ~; ·~ i \ to NICHOLAS RYAN MARYOL to help\with his college education;

\ ""~ ....~ 3. $10,000.00 to CRESTVIEW BAPTIST CHURcH., Dallas, Texas.

) ''.,

III. \

All the rest and re~idue of my estate, ;'e\al, personal or mixed, \

of every character, of which I may die seized and possessed, or \

to which I may be ent tled at or after my de"ath, I hereby give, \

\

devise and bequeath, in\ equal shares to L JLl.,IAN; SEWELL , SUE NEAL,

ALEEN NEAL, WOODROW WELLS, and MELANIE WELLS; share and share alike, [ ::; ;"r;R'ECl~

COPY OF ORiGlliAL Fl.LED IN HOPKINS COUNTY CLER!-\'S OFFICE provided that if any of my named devisees die before me leaving

issue surviving, then such deceased devisee's share shall be

distributed to his, her or their issue, such idsue taking per stirpes

and not per capita.

IV. /I

I

/

If any beneficiary or beneficiaries under this Will, and I,

f

!

should die in a common accident 9r disaster, or under such

circumstances that it is\ doubtful w;h1ch of us died first, or within

thirty (30) days of my ~eath, /~.\Jjn all of the provisions of this Will shall take effect ~ \

like

f

manner as if such beneficiary or I I ' I

beneficiaries had predeceas~d1me.

\ /

v

' I

v.

In the event, NICHOL~b\ RYAN MARYOL has not reached to age

of eighteen (18) years, f tjereby 1 l

give, devise and bequeath the

portion of my estate her~~n ~equeathed to him, to SUE NEAL, such f \

person to hold such es/ate\ as Trustee and manage and control

same as a Trust Estat~f for\ NICHOLAS RYAN MARYOL, with al 1 of

the rights and power~ and\ subject to all the limitations I \ hereinafter enumerated }or the tollowing uses and purposes:

A. I direct my \Trustee frQm the income of such Trust, and so \far as neces's.~ry from the principal thereof, to p*ovide for tfr~ heal th and welfare of the benef:f,ciary of sud1 Trust so created as his needs I dictate, sua,h expenditures to be in the solE:? discretion of my said Trustee. Such expenditures may only o,e made in one of the following w4ys: \ \ \ \ \ 1) Directly to the petson\ or orgariization furnishing the medical care br /~ducation for ',' such beneficiary;·

TRUE AND RRECT COPY OF ORiGii•Jf\L FILED iN HOP~\if\JS COU CLJ2RK'S CFF!CE 2) To the natural guardian or legally appointed guardian based tJ':t}on ' receipts for actual expenditures for the ~~nficiary; or 3) Directly to such beneficiary~

B. I authorize and empower ~yTrustee to sell, exchange, assign, trans/fer and convey any security or property, r~al or personal, which is a part of such Trus 1t Estate, at public or private sale, at such t'ime and price and upon such terms and conditjons, including credit, as my Trustee may deterrrtine. I further authorize my Trustee to incur ¢uch expenses or charges in the management of /such Trust Es ta te as my Trustee shall\ see fi;t, and to pay taxes and other charges fbr gov,rnmental assessments.

1 I

C. Any Trust crea t:ed /herein shal 1 be governed, by the prov1s1ons cif the Texas Trust Act, in effect at my death/ except as herein otherwise provided, and I\ ~ereby give, to the Trustee all of the author~~y and powers in administering the said Trust ~,s is provided by said Texas Trust Act. The /'i\rustee shall not be required to give bond f~ \the management of the Trust, nor .shall the ·.yrus,tee be liable for any error of Judgment, or fbr any acts done, or steps taken or omi tt~d, \.mder the advise of counsel, or for any misJtake \of fact or law, or for any thing my Trus~be might do or refrain from doing in good faith j \ D. The Trustee /shall not recognize any transfer, I '

mortgage, pledge, \ or assignment of any beneficiary /by way \of anticipation of income or principa11J.. The 1\ income and principal of any Trust mereunder . shall not be subject to transfer by operatio~ of law, and shall be exempt from the claim~ of creditors or other claimants, ;' and from ot'~ers, decrees, levies, attachments, garnishmen~s, executions, and other lega~ and equitable\process or proceedings to the ful~est extent perm~ssible by law.

\ I ' \

E. The Trust shall continue. during the lifetime of the beneficiary of such Trust, and until

UE AND CORRECT COPY OF ORiC';!NAL FILED IN HOP!<if)$ COUf\!TY LERKS ·:)FFlCE he reached the age of eighteen (18) years, at which time, such Trust shall terminate, and the corpus and any accrued income shall be distributed to NICHOLAS RYAN MARYOL, or if he be deceased, to the ,devisees named in Paragraph III of this Will/ to be determined as though I had died on! the date of the termination of the Trust. / /

F. In the event SUE NEAL, shall at any time cease or be unab 1,e to serve J..s Trustee, I appoint DAVID MARYOL as Substitute Trustee, hereby granting to him the samEf powers and limitations granted to my~amed Trus~ee~

f

\ j \ ;VI.

~J,{~

\ <

If any beneficiary \f Will is under a legal disability, my Executrix may make a\ dlstribution to that beneficiary in any \\ iJ

one or more of the following ways:

/\

a. To such beneficiar~ directly;

' \

b. To the guardian/or conservator of such beneficiary;

{{ \

c. To a relativ~/ of ~he beneficiary to be expended

by such relatjve on ~ehalf of the beneficiary;

i \ d. To a custodian sel~cted by the Executrix under \

an applicable Uniform tifts to Minors Act;

e. To a \

Trust'.ee provided\ for by separate instrument;

or I \ f. By my Executrix expend'ifi., the same directly for

the benefit of such benefici~y.

VII. \,

I hereby iconstitute and .

appoint\ SUE

\

NEAL, as Independent

Executrix of this, my Last Will and Te~.,_tament, and direct that no '\

\

TRUE f-\S\ID CORRECT COPY OF Ol~!G!!\!,D.,l FILED tr~~ L.icr)h.ll\J::3 COU CLE. S iCE bond or other form of security sh al 1 ever be re qui red of her as

such, and that no other action shall be had in the County Court

in relation to the settlement of my estate, other than the return

of statutory inventory, appraisement and list of claims of my estate.

I specifically authorize and empower my said Executrix to sell,

dispose of, deliver and convey any portion of my estate, real or

personal, at public or private sale for any price, on such terms and in such manner as may to her seem best.

In the event SUE NEAL, shall not survive me, or in the event

she shall fail to qualify as Independent Executrix hereunder, or

having qualified shall die or resign, then in such event, I do hereby

appoint WOODROW WELLS, as Substitute Independent Executor, hereby

granting to him the same powers and immunities as hereinabove granted to my named Executrix.

THIS I MAKE AND PUBLISH as my Last Will and Testament, hereunto

subscribing and signing my name, this the cZ.,6_ day of April, 1993.

--r'

vf't~it/Ru~'ffizGf·«~

/ r; .,? //

This and the foregoing four (4) page typewritten instrument was now here published as her Last Will and Testament, and signed and subscribed by VELMA RUTH FITZGERALD, Testatrix, in our presence,

and we, at her request, and in her presence, and in the presence

of each other, sign and subscribe our names thereto as attesting

witnesses.

THE STATE OF TEXAS §

COUNTY OF DALLAS §

BEFORE ME, the undersigned authority, on this day personally appeared VELMA RUTH FITZGERALD, Betty Stanton, /and Kathy Dunlap, known to me to be the testatrix and the witne,sses, respectively, whose names are subscribed to the annexed or• foregoing instrument in their respective capacities, and all •Of said persons being by me duly sworn, the said VELMA RUTH FITZGERALD, testatrix, declared to me and to the said witnesses in my presence that said instrument is her Last Will and Testament, and that she had wi 11 ingly made and executed it as her free act and deed; and the said witnesses, each on .their oath stated to me, in the presence and he·aring of the· ··said testatrix, that the said testatrix had declared, to them /that said instrument is her Last Will and Testament, and\that sh~ executed same as such and wanted each of them to sign it\as /a!witness; and upon their oaths each witness stated further that/ they did sign the same as witnesses in the presence of the s'c;.id testatrix and at her request; that she was at that time eig'Qteen years of age or over (or being under such age, was or pa~ been lawfully married, or was then a member of the armed tfor,ces of the United States or of an auxi 1 iary thereof or of /the\ Mari time Service) and was of sound mind; and that each of ~hid '(litnesses was then at least fourteen years of age. / \

l

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I ./ \ r

I I !1<-?tn,l/L.t1~~~~

VELMA R~ ~ITZ~D;'festatrix

~

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I \~Pc-.! I WITNE \

J Kflii; \[}c.,}~ \\ITNE \

\ \ I \ Subscribed and sword to before. me by the said VELMA RUTH FITZGERALD, Testatrix, and by the s\aid Betty Stanton and Kathy Dunlap, witnesses, this ii, fe_ '!;J, of/ April, 1993.' -:---/!

///(/;,/,/ 1 LA,~t/\

I FILED ;i\.

COUi\JTY C'

No. POS-13106

IN THE ESTATE OF § IN THE COUNTY COURT AT LAW

VELMA RUTH FITZGERALD, § OF

DECEASED § HOPKINS COUNTY, TEXAS

MOTION FOR WITHDRAWAL OF COUNSEL

This Motion for Withdrawal of Counsel is brought by Frank Bauer, who is attorney of

record for CARLTON SEWELL. Frank Bauer requests the Court to grant him permission to

withdraw as attorney for CARLTON SEWELL in this case. In support, Frank Bauer shows:

The undersigned is seeking leave of this Court due to withdraw due to a conflict of

opinions between the client and the undersigned as to future prosecution of this case.

No hearing has been scheduled. Notice of this Motion is being forwarded to CARLTON

SEWELL.

Frank Bauer prays that the Court enter an order discharging him as attorney of record for

CARLTON SEWELL.

Respectfully submitted,

Frank Bauer, Attorney at Law PO Box 207 Sulphur Springs, TX 75483-0207 Tel: (903) 439-6224

,.....

Fax: (903) 885-1385 CJ :-< ·~:::;

State Bar No. 01920600 I :~r~-,, _.-,.;:::::

I ~:~[;;

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.:n1 '· ""'c-:-

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~~.> t r-i

Page 1

COPY OF ORi(;:; L,L. FILED !N HOPKiNS COUNTYCLERK'S CFFICE

Certificate of Service

I certify that a true copy of the above was served on CARLTON SEWELL, 6940 TX

Hwy. 11 E, Sulphur Springs, TX 75482; and CHAD CABLE, 858 Gilmer, Sulphur Springs, TX

75482, in accordance with the Texas Rules of Civil Procedure on April d, 2013.

Frank Bauer

TRUE AND COFZRECT Page2 COPY OF OF~iG!~lAL FILED IN HOPKif'1S · COUNTY CLERK'S CFFICE

J IN THE ESTATE OF No. POS-13106

§ IN THE COUNTY COURT AT LAW

VELMA RUTH FITZGERALD, § OF

DECEASED § HOPKINS COUNTY, TEXAS

ORDER ON MOTION FOR WITHDRAWAL OF COUNSEL

On y)90 , 2013, the Court considered the Motion for Withdrawal of Counsel of

Frank Bauer.

The Court finds that good cause exists for withdrawal of Frank Bauer as counsel.

The Court finds that the withdrawal of Frank Bauer is not sought for delay only.

IT IS THEREFORE ORDERED that Frank Bauer is permitted to withdraw as counsel of

record for CARLTON SEWELL in this case.

SIGNED on 4--'--+-"fd3~--' 2013.

I-"

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ORDER ON MOTION FOR WITHDRAW AL <iY ot: Page Solo /'.-----~o TRUE AND CORRECT ' !\ ~-f COPY OF ORIGINAL -<f)l: FILED IN HOPl<INS ::~~~./ COUNTY CLERK'S OFFICE

NO. P08-13106

IN THE ESTATE OF § IN THE COUN'i£kf]ciiJ!J:g] A q: 38 , §

VELMA RUTH FITZGERALD, § AT LAW OF §

DECEASED § HOPKINS CQ~TY, TEXAS - _,__.. DEPUTY APPEARANCE OF COUNSEL

J. BRAD McCAMPBELL hereby makes this appearance as counsel for CARLTON

SEWELL in this case.

Respectfully submitted,

Curtis, Alexander, McCampbell & Morris, P. C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 Tel. (903) 473-2297 Fax. (903) 473-3069

By: . , /?) J. ad McCampbell T as Bar No. 13358000 A TORNEYS FOR CARLTON SEWELL

CERTIFICATE OF SERVICE

I certify that on July 19, 2013, a true and correct copy of this Appearance of Counsel was served by certified mail, return receipt requested on Mr. Chad Cable, 323 Gilmer Street, Sulphur Springs, Texas 75482.

fJ ~/?/if:;,,#/

/ J. Brad McCami)iSell

, <UE AND CORRECT COPY OF ORIGINAL FiLED IN HOPKINS COUNTY CLERK'S CFF .A\ 1 _,j 2· 2"1'- l !~ ·-- !J.J

NO. P08 - 13,106

Debbie S.hirley, County Clerk BY:~·--~-~·~~-~~-

_ nenut-r

_.:..J l .J

ESTATE OF § IN THE COUNTY COURT §

VELMA RUTH FITZGERALD, § DECEASED § HOPKINS COUNTY, TEXAS

CERTIFICATE OF DEEMED ADMISSIONS

The Request for Admissions attached hereto as Exhibit "A" were served upon the

opposing party, Carlton Sewell, via certified mail on May 13, 2010.

The return receipt for service is attached hereto as Exhibit "A".

Undersigned counsel hereby certified that no response to said Request for Admissions

was ever served. J.

Signed this /o2 day of Jariuary, 2015.

R~- 11 submitted,-"

~ Chad Cable

State Bar No. 03575300 323 Gilmer Street Sulphur Springs, Texas 75482 Telephone (903) 885-1500 Telecopier (903) 885-7 501

ATTORNEY FOR CONTESTANTS

TRUE AND CORRECT

CERTIFICATE OF DEEMED ADMISSIONS 90PY OF ORIGINAL Page I FlLED IN HOPKINS cou't-JTY CLEHKS CFFICE

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing instrument was hand deliverej}. to opposing counsel in accordance with the Texas Rules of Civil Procedure, on this /Z~ay ofJanuary, 2015.

~ Chad Olhle

TRUE AND CORRECT COPY OF ORIGINAL

CERTIFICATE OF DEEMED ADMISSIONS Page2 F!LED IN HOPKll\JS COUNTY CLERK'S CF Fl CE

NO. P08 - 13,106

IN THE ESTATE OF § IN THE COUNTY COURT §

VELMA RUTH FITZGERALD, § OF §

DECEASED § HOPKINS COUNTY, TEXAS

CONTESTANTS' FIRST REQUEST FOR ADMISSIONS

TO: Carlton Sewell, 107 Morris Drive, Sulphur Springs, Texas 75482.

COMES NOW, Contestants of the will sponsored by Carlton Sewell, in the above styled

and numbered cause, and pursuant to Rule 198 of the Texas Rules of Civil Procedure, makes the

following Requests for Admissions of Fact.

These requests are being served upon, Carlton Sewell, and you are notified that

Contestants demand that within 30 days after the service of these requests, that Carlton Sewell

specifically admit or deny the facts requested. A failure to specifically answer any request or an

evasive answer to any request will be taken as an admission of truth of such request.

Respectfully submitted,

~m. Chad Cable State Bar No. 03575300 323 Gilmer Sulphur Springs, Texas 75482 Telephone (903) 885-1500 Telecopier (903) 885-7501 COUNSEL FOR CONTESTANTS

. . _·. . : (ii};::':Y:~~

ADMISSIONS~!,~

COPY OF ORi'<;:r,;\L.

CONTESTANTS' FIRST REQUEST FOR .

ult FILED IN HOPKINS COUNTY CLERK'S CFFlCE

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing instrument has beep~rved on Carlton Sewell in accordance with the Texas Rules of Civil Procedure, on this \ · ----"-->-

day of May, 2010.

1L Certified mail/Return receipt requested Telecopier (fax) Federal Express Courier with Receipt Registered mail/Return receipt requested Regular Mail Personal Hand Delivery

Date: Mai~ 2010.

CHAD CABLE

CONTESTANTS' FIRST REQUEST FOR ADMISSIONS

REQUEST FOR ADMISSIONS

1 ADMIT or DENY That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her will.

RESPONSE:

2. ADMIT or DENY That throughout the spring and summer of2007, Velma Ruth Fitzgerald was physically and mentally weak enough to be susceptible to undue influence.

RESPONSE:

3. ADMIT or DENY That you influenced Velma Ruth Fitzgerald to the point of subverting and overpowering her mind so that she would execute a new will naming you as sole beneficiary which she would not have done but for your influence.

RESPONSE:

4. ADMIT or DENY That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having contact with her as part of your scheme to exert undue influence over her.

RESPONSE:

5. ADMIT or DENY That one of your techniques for exerting undue influence was to feign romantic love for Velma Ruth Fitzgerald in a seducing manner by physical affection and full on the mouth kissing.

RESPONSE:

6. ADMIT or DENY That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald to change her will to benefit the two of you.

RESPONSE:

7. ADMIT or DENY That you told the White brothers in Vernon that Velma Ruth Fitzgenlld was not competent when she signed their lease contract.

RESPONSE:

o~ +°-<>

ur:s:-;:,Y..iY TRUE Af\JD CORRECT

~,,-g; "-' -t: COPY OF ORIGINAL FILED IN HOPf<lf\JS. •· t . ._ "J c.cc:1r~

CONTESTANTS' FIRST REQUEST FOR ADMISSIONS "-ti.t_9~ t'Qi V . L j\1"'!

I ·• ! :. {'! '.=Ri.{'C'

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8. ADMIT or DENY That you converted funds belonging to Velma Ruth Fitzgerald to your own benefit prior to her death.

RESPONSE:

9. ADMIT or DENY That you breeched your fiduciary duty to Velma Ruth Fitzgerald by profiting from the use of her power of attorney prior to her death.

RESPONSE:

10. ADMIT or DENY That you misrepresented the nature of Velma Ruth Fitzgerald's mental independence to Ray Johnson and his staff.

RESPONSE:

11. ADMIT or DENY That you had no contact with Velma Ruth Fitzgerald for years prior to accompanying Truitt and Laura Sewell to Dallas to visit her in a nursing home.

RESPONSE:

12. ADMIT or DENY That you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong friend, Eurice Lee White.

RESPONSE:

13. ADMIT or DENY That you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life.

RESPONSE:

14. ADMIT or DENY That Velma Ruth Fitzgerald was mentally and physically incapable of resisting your undue influence by August of2007.

RESPONSE:

CONTESTANTS' FIRST REQUEST FOR ADMISSIONS 15. ADMIT or DENY That the August 8, 2007 will of Velma Ruth Fitzgerald is invalid and should be set aside.

RESPONSE:

16. ADMIT or DENY That you are liable for damages and attorney fees to the contestants.

RESPONSE:

"Tf<.LJE P~~\i[J (;.CJF~R.EC~r COPY OF ORiGiN/\L / FILED IN HOPKINS

CONTESTANTS' FIRST REQUEST FOR ADMISSIONS ""f'ILJN t_.., V , __I ,,

Y "I '"RV'{'

1c.,_, ~~-·c: ~ r"'- "~ CFFl0-E ·. '-2>

CHAD CABLE

LAWYER

323 GILMER

Sm..PHUR SPRINGS, TEXAS 75482 TELE.COPIER: (903) 885-7501

TELEPHONE: (903) 885-1500

May 13, 2010

Via Certified Mail 7005 1820 0007 7656 6578 Return Receipt Requested & Regular Mail

Mr. Carlton Sewell 107 Morris Drive Sulphur Springs, Texas 75482

RE: Cause No. P08-13106 Estate of Velma Ruth Fitzgerald, Deceased Hopkins County, Texas

Dear Mr. Sewell:

Enclosed are the following: 1. Motion for Appointment of Independent Executor; and

2. Order Setting Hearing.

Sincerely,

SENDER: COMPLETE THIS SECTION

~e.~ o:i~ecy :;~plete • Complete items 1 2 d 3 Al , • 4 if Restricted is . s~~h~iur name and address on the ~verse . • A.tt . . can return the card to vou ach t s card to th b k J · • or on th front i"f e ac of the mailpiece, space permits.

Mr. Carlton Sewell 107 Morris Drive Sulphur Springs, Texas 75482 3. ::/ervice Type fr rtl-certified

R . eg1stered

Mail O Express Mail

D Return Recel. f fa

. . .. .

D Insured Mail 0 C.O.D. P · . r Merchapd1se

4. Restricted Delivery? (Extra Fee'~ DYes 2. Article Number 7005 S CFF!CE (Transfer from service label)

'S Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540

CHAD CABLE

LAWYER

323 GILMER

SULPHUR SPRINGS, TEXAS 75482 TELEPHONE: (903) 885-1500 TELECOPIER: (903) 885-7501

May 13, 2010

Via Certified Mail 7005 1820 0007 7656 6578 Return Receipt Requested & Regular Mail

Mr. Carlton Sewell I 07 Morris Drive Sulphur Springs, Texas 75482

RE: Cause No. POS-13106 Estate of Velma Ruth Fitzgerald, Deceased Hopkins County, Texas

Dear Mr. Sewell:

Enclosed is the following:

I. Request for Admissions

Sincerely,

Chad Cable

CC/lar Enclosures

''.\

NO. POS-13106

IN THE ESTATE OF § IN THE COUNTY COURT §

VELMA RUTH FITZGERALD, § AT LAW OF §

DECEASED § HOPKINS cou,~TY, TE~S 23 : 4.1'1 :s.:.,, MOTION TO WITHDRAW DEEMED ADMISSION$ n::::i ...,., ::.~r= j ~~~! :;;;: i~ci . COMES NOW, Carlton Sewell, and moves the Court for an orderpertjiittin~~th~w~~ i <J ::_:~ ::-;; ::v admissions deemed admitted as a result of certain requests for admissions andLfor p&miissie11 tO:fi~ :'~:;:; ~ ;;i ::< c!:J a response to those requests. In support of this motion, Movant shows the fqtiowini F c >-<CJ

~ F/ -< N >

I.

FACTS

1. This case was commenced on January 2, 200 8 by Movant' s filing an "Application to Pro bate

Will (of Velma Ruth Fitzgerald, dated August 8, 2007) as a Muniment of Title".

2. Said Application was heard by the Judge of the County Court of Hopkins County, Texas on

January 15, 2008 which resulted in said Will being admitted to probate as a muniment of title.

3. On January 30, 2008, Janet Neal Stanley filed a competing Application to probate a Will

executed on April 26, 1993 by Velma Ruth Fitzgerald.

4. Both sides filed respective oppositions to the probate applications filed.

5. On February 14, 2008, the "\iVill contest" was transferred to the Hopkins County Court at

Law by order of the County Judge of Hopkins County.

6. Representing Carlton Sewell in the "Will contest" was the Honorable Eddie Northcutt and

representing Janet Stariley et al was the Honorable Chad Cable. Mr. Northcutt filed an opposition

to Janet Stanley's opposition to probate on February 14, 2008.

7. As part of the discovery performed in the case, the oral deposition of Carlton Sewell was

taken by Chad Cable on May 13, :2008. Eddie Northcutt was present during the deposition.

Regarding discovery in the case, there was no Discovery Control Plan entered by the Court. That

being the case, the applicable Disdovery Control Plan for this probate matter is TRCP 190.3, where

MOTION TO WITHDRAW DE~MED ADMISS~. TR. UE AND CORRECltage 1 of 9 . ' . ,:-'~ W. COPY OF ORIGINAL 1-"'\ /;,"1 FILED IN HOPKINS ,, . _;(:'./

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(°' ;..-, ; ! HT'J ('; c: C) V'S v ._J ;: \\ I 1 '-~ ;. - L_ • \I \..

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discovery is mandated to be completed no later than nine months after the earlier of the date of the

first oral deposition or the due date of the first response to written discovery. The deposition of Mr.

Sewell on May 13, 2008, was the commencement of the discovery period.

8. On January 23, 2009, the Court signed an order allowing Eddie Northcutt' s withdrawal from

the representation of Carlton Sewell.

9. On June 17, 2010, Carlton Sewell retained the services of the Honorable Frank Bauer to

represent him in the "Will contest".

10. In the interim between the withdrawal of Eddie Northcutt and the engagement of Frank

Bauer's services, it appears that on May 13, 2010, Chad Cable served Requests for Admissions on

Mr. Sewell, who, at the time, was acting prose. A true copy of the Requests for Admissions are

attached hereto as Exhibit "A".

11. Carlton Sewell did not respon~ to said Requests for Admissions.

12. The parties tqereafter continued to engage in various forms of discovery, i.e., Requests for

Disclosure, Interrogatories, Requests for Production, and additional depositions.

13. On April 22, 2013, Frank Bauer filed a motion to withdraw from the representation of

Carlton Sewell. An order allowing Mr. Bauer's withdrawal was signed by this Court on April 23,

2013.

I

14. In July, 2013, Carlton Sewell retained the services of J. Brad McCampbell, attorney, to

represent Mr. Sewell in the matter. Mr. McCampbell's representation continues to date.

15. Since being engaged by Mr. Sewell, Mr. Mccampbell began preparation to try this case in

front of a jury. This case was set on various jury dockets only to be continued each time.

16. On January 12, 2015, the case was finally set to commence with jury selection at 1:00 p.m.

At 9 :20 a.m. on January 12, Chad Cable filed a document titled "Certificate of Deemed Admissions"

notifying the Court. of the failure of Carlton Sewell to respond to the Requests for Admissions

submitted by Mr. Cable over 4Vz years before.

. /:~:-:-~-~·~·~ UE AND CORr<ECT MOTION TO WITHDRAW DEE:MED ADMISSIONS Page 2 of 9

1

\ {!!Jf

COPY OF OR!C'NAL.

/°'

'·'··~@>:.--

FILED IN HOPf\INS , COUNTY CLEHK'S CFFICE 17. Neither Frank Bauer nor J. Brad McCampbell knew of these existence of these request for

admissions until the filing of the Certificate of Deemed Admissions by Mr. Cable literally hours

before jury selection. Based on that filing, this Court excused the jury panel prior to commencement

of trial and has allowed Mr. McCan1pbell time to file this Motion for Withdrawal of Deemed

Admissions.

II.

ARGUMENT

Rule 198.3 of Tex. R. Civ. P. states in part:

... A matter admitted under this rule is conclusively established as to the

party making the admission unless the court permits the party to withdraw or amend

the admission. The court may permit the party to withdraw or amend the admission

if:

'(a) the party shows good cause for the withdrawal or amendment; and

(b) the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved by permitting the party to amend or withdraw the admission.

See Tex. R. Civ. P. 198.3; see also Wal-mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 356

(Tex. 1998).

Subsections (a) and.(b) of 198.3 provide the requirements for one seeking withdrawal of

deemed admissions. Breaking those requirements down, one seeking withdrawal must show: (1)

good cause for the withdrawal; (2) that such withdrawal will not unduly prejudice the party relying

on the deemed admissions; and (3) that the merits of the case will be benefitted or promoted by

permitting the withdrawal.

In support ofMovant's request for withdrawal, Movant shows:

1. At the time of delivery of the requests for admissions, Mr. Sewell was not represented by

counsel. Representing himself pro se, Mr. Sewell did not have (ill understanding ofthe consequences

of not responding to the requests. Interestingly, during Eddie Northcutt's approxiinate one (1) year .. ·~:r:,-;-.. .

MOTION TO WITHDRAW DEEMED ADMISSiO~,\ . .· '\ 7 )z; r~,_,op\J.·:EY Or-~.f\lfl.-:.:.·CC.'lHREC:ffage Oi~IGiNAL

3 of 9

· '·>·-~,;;~ FlLED.!NHOVi\!NS <l::'si.::.JP- COUNTY CLEHl<'S CFFICE representation of Mr. Sewell no such requests for admissions were delivered. Instead, Mr. Cable

chose to send the admission requests when Mr. Sewell was without counsel.

2. As discussed above, Mr. Sewelll' s deposition commenced the discovery period under TRCP

l 90.3(b)(1 )(B)(ii), which ended nine months later in February of2009. The requests for admissions

dated May 13, 2010 were without a date untimely, and those requests and their deemed responses

have no force and effect in this case, barring either (1) an agreement between Mr. Cable and Mr.

Northcutt or Mr. Sewell to the contrary, or (2) either side moving for an extension of the discovery

period and being granted an extension. Neither of these scenarios occurred.

3. At the time of delivering the requests for admissions, Mr. Cable did not file a Certificate of

Written Discovery with the Court (which is customarily done by attorneys) or file any other type of

notice to the Court that these requests were being sent. This is important because Mr. McCampbell' s

thorough review of the Court's file at the time he was hired revealed an absence of any hint that

request for admissions were delivered to Mr. Sewell. That being the case, together with the fact that

Mr. Sewell did not U.nderstand the significance of the requests and the consequences ofresponding

to them, neither Mr. Bauer nor Mr. Mc Campbell had knowledge of the requests for admissions. Had

Mr. Sewell been represented by counsel at that time, the requests would have been delivered to his

lawyer and they would have been answered timely. Neither Mr. Bauer nor Mr. McCampbell would

have failed to answer them in a timely fashion, barring sickness or accident. Also, had either

attorney been made subsequently aware of these deemed admissions by opposing counsel, either one

of two things would.have happened: (1) Responses to the requests for admissions would have been

immediately prepared and submitted; or (2) a motion to withdraw deemed admissions would have

been filed shortly after being made aware of them.

4. Mr. Cable1 in taking the oral deposition of Mr. Sewell in May of2008, approximately 2 years before the date of the requests for admissions, was made aware of Mr. Sewell's position in the case

at that time. See Wal-mart Stores, Inc. v. Deggs, 968 S.W.2d at 356, (Deggs,,the party relying on

the deemed admissions had deposed Smith, the party that failed to respond to admission requests.

MOTION TO WITHDRAW DEElVIED ADMIS~iq:~s JE D CORRECT Page 4 of 9 ". ~ 7 J~J COPY OF ORiGlrJAL \, '.J.--':">fJ FILED IN :-:oPKINS : ., ·-t££:S" COUf'~TY CLcRK'S OFFICE

The Court found that because Deggs was not dependent on the deemed admissions for developing

her theory of the case, she would not be unduly prejudiced if the deemed admissions were

withdrawn.) Sewell's position was in direction contradiction to the deemed admissions. The tenor

of the requests for admissions was to seek admissions from Mr. Sewell that he unduly influenced

Ms. Fitzgerald in her execution of the 2007 will and/or that Ms. Fitzgerald lacked testamentary

capacity to execute the 2007 will. At the time of his deposition, Mr. Sewell' s testimony and Mr.

Sewell's pleadings on file clearly put Mr. Cable's clients on notice that the requests for admissions

were not uncontroverted matters, and that they could not reasonably rely on the admissions in lieu

of other discovery. Of note, Mr. Sewell' s "Opposition to Application for Probate of Will and for

Letters Testamentary and Answer to Opposition to Probate Will", filed by Eddie Northcutt on

February 14, 2008, over two years before the requests for admissions, denies Mr. Cable's clients'

allegations that Decedent lacked testamentary capacity and that Mr. Sewell exerted undue influence

over Decedent.

5. It is interesting that after the deadline for Mr. Sewell's response to the requests for

admissions, Mr. Cable did not file a motion for summary judgment based on the deemed admissions

which, if allowed to stand, essentially "gut" Mr. Sewell' s case. In fairness, our rules do not mandate

that a motion for summary judgment be filed in this instance. However, Mr. Cable, on behalf of his

clients, engaged in more discovery and allowed Mr. Sewell's subsequent counsel to engage in more

discovery and preparation for the jury trial in this case. In effect, Mr. Cable's chosen course allowed

Mr. Sewell to hire not one but two more attorneys, spending thousands of dollars in preparation for

trial only to be presented with "deemed" admissions on the morning of trial over 4llz years after the

fact.

6. Movant's counsel respectfully submits that Mr. Cable's holding these deemed admissions

"close to the vest" only to spring them on opposing counsel on the day oftrial is inequitable and

constitutes ''trial by ambush". Movant is not asking the Court to co'ndone his failure to respond, but

asks the Court consider in fairness allowing withdrawal of the admissions and letting this case proceed to trial on the merits. Based on the above, Movant believes he has presented a showing of

"Good Cause". "Good cause" is established by showing the failure involved was an accident or

mistake, not intentional or the result of conscious indifference. Stelly v. Papania, 927 S.W.2d 620,

622 (Tex. 1996). Since Mr. Sewell's position is and always has been so contrary to the deemed

admissions, it is clear that the failure to respond to them was not intentional or the result of

conscious indifference on his part. It is the position of Mr. Sewell that while the signature on the

green card to the certified mailing of the Requests for Admissions appear to be his, he does not have

recollection of the document nor has he been able to locate said document.

7. Furthermore, allowing withdrawal of the deemed admissions will not unduly prejudice Mr.

Cable's clients for the following reasons:

a. Regardless of the discovery deadline, Mr. Cable has conducted discovery, i.e., depositions, requests for disclosure, interrogatories, and requests for production, on behalf of his clients;

b. If it is Mr. Cable's position that he would have conducted additional discovery but for the deemed admissions and based on any agreed or extended discovery deadline, he has had over 41;2 yeaFs to conduct same. SeeEmployer 's Ins. of Wausau v. Halton. 792 S.W.2d 462, 467 (Tex. App. - Dallas, writ denied) (finding lack of prejudice when the opposing party had almost a month to conduct additional discovery);

c. This case has been pending with both sides either requesting or agreeing to the several continuances thus far in this case;

d. Again, Mr. Cable did not seek to end the case by the usual method, motion for . summary judgment, based on the deemed admissions. The term "prejudice" does not include the fact that, if the admissions were withdrawn, the party who obtained that admission would then have to convince the factfinder of its truth. See FD.IC. v. Prusia, 18 F. 3d 637, 640 (8 1h Cir. 1994).

8. Additionally, withdrawal of the admissions wcmld promote the presentation of the merits of

the action. See Tex. R. Civ. P. 198.3(b).

The plirpose of requests for admissions is predominantly to assist the trier of fact and to

reduce trial time by facilitating proof with respect to issues that cannot be eliminated from the case

and by narrowing the issues by eliminating those that can be. The discovery rules were not designed

as traps for the unwary, nor should we construe them as preveriting a litigant from presenting the

truth. Stelly v. Papania, 927 S.W.2d at 622. Likewise, they surely were not designed to trap a

rlage 6 of 9

layman, totally ignorant of the discove1y rules, and, in particular, the deadly import of the TRCP 198.

The purpose of the Rules of Civil Procedure is to obtain a just, fair, equitable and impartial

adjudication of the litigant's rights under established principles of substantive law. Stelly at 927

S.W.2d at 622. In Stelly, the Supreme Court stated:

The primary purpose of[Rule 198} is to simplify trials by eliminating matters about

which there is no real controversy, but which may be difficult or expensive to prove.

It was never rrztended to be used as a demand upon a plaintiffor defendant to admit

that he had no cause of action or ground of defense.

In Trans-American Nat. Gas Corp v. Powell, 811S.W.2d913, 918 (Tex. 1991), the Supreme

Court said that "S'anctions which are so severe as to preclude presentation of the merits of the case

should not be assessed absent a party's flagrant bad faith or counsel's callous disregard for the

responsibilities of discovery and the rules."

9. Movant recognizes that trial courts have broad discretion to permit or deny

withdrawal of deemed admissions, but that they cannot do so arbitrarily, unreasonably, or without

reference to guiding principles. Stelly, 927 S.W.2d at 622; see also Wheeler v. Green, 157 S.W.3d

439, 443 (Tex. 2005). When a party uses deemed admissions to try to preclude presentation of the

merits of a case, due process concerns arise. See Trans-American National Gas Corp., 811 S. W.2d

at 917-18; see also US.CA. Const. Amend. 14.

In Wheeler, a custody modification case, of the 64 deemed admissions, none sought to

discover information: 9 deemed circumstances changed so modification was proper; 25 deemed

modification in tre child's best interest; 27 deemed Sandra (the mother) liable for malicious

prosecution; and 3 deemed her liable for child support, attorney's fees and exemplary damages.

Wheeler 157 S.W.3qat443. The Supreme Court reversed the Appellate Courtholdingthattherewas

good cause for withdrawing the deemed admissions and that withdrawal would not cause undue

prejudice to the father. Id at 444. The Court in Wheeler, while agreeing that prose litigants were

not exempt from the rules ofprocedure (see Mansfield State Bankv. Cohn, 573S.W.2d181, 184-185

·~~ CFFlCE

(Tex. 1978) ), stated that:

When a rule itself turns on an actor's state of mind (as these do here), application

may require a different result when the actor is not a lawyer. Recognizing that

Sandra did not know what any lawyer would does not create a separate rule, but

recognizes the differences the rule itself contains. " Wheeler at 444.

In the case at bar, the requests for admissions are couched in such a way as to preclude Mr. Sewell

from disputing the allegations of undue influence exerted by him, the lack of testamentary capacity

of Ms. Fitzgerald, his allegedly converting assets of Ms. Fitzgerald, and his alleged liability for

damages and attorney's fees to contestants. Again, the effect of these deemed admissions amounts

to a "gutting" of Movant' s case. The issues covered by these deemed admissions are at the core of

this litigation; and that for justice to be done, these issues should be determined by the

preponderance of the evidence.

III.

CONCLUSION

Based on the above, Movant respectfully submits that he has met the requirements of Rule

198.3 by showing good cause for the withdrawal ofthe deemed admissions, that said withdrawal will

not cause Contestants undue prejudice and will be subserved by (promote) presentation of the case

on the merits.

IV.

PRAYER

WHEREFORE, Movant requests that the Court, after hearing this motion, order the

withdrawal of the admissions as set out above, order that Movant' s responses to the requests for

admissions, attached hereto as Exhibit "B" and served with this Motion, be considered as Movant's

responses to the requests for admissions, and afford Movant such other and,further relief to which

Movant may be justly entitled.

E ,Af,lur',

·" rn '.:;}r::crr'"'·Page 8 of 9

1

,..,,,_,,,!>.C'v>

COPY OF Oi~iGINAL FILED lf\1 ~-IOPKi!\1~.s ! ....•.·'~, \ ',-~< ·..__) '· .. i

Fi CE

Respectfully submitted,

CURTIS, ALEXANDER, McCAMPBELL & MORRIS, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 Tel: (903) 473-2297 Fax: (903) 473-3069

1 /} 11 " ,1.1 { ,, By:. U-/~{//1-~~

,/iJ. Brad McCampbcl V State Bar No. 13358000 ATTORNEYS FOR MOV ANT

Certificate of Service

MOTION TO WITHDRAW DEEMED ADMI~~~ TRUE AND CORREc-fage 9 of 9 .•·• -·~ 7 \", COPY ' ?··. ·. '. o:= ORIGINA.L /

/l~G; F'.;. ;:~,,

~::r; ~;. r. i~

r

~CHAD CABLE

LAWYER

323 GILMER

SULPHUR SPRINGS, TEXAS 75482 TELEPHONE: (903) 885-1500 TELECOPIER: (903) 885-7501

May 13, 2010

Via Certified Mail 7005 1820 0007 7656 6578 Return Receipt Requested & Regular Mail

Mr. Carlton Sewell 107 Morris Drive Sulphur Springs, Texas 75482

RE: Cause No. P08-13l'06 Estate of Velma Ruth Fitzgerald, Deceased Hopkins County, Texas

Dear Mr. Sewell:

Enclosed is the following:

1. Request for Admissions

Sincerely,

Chad Cable

CC/lar Enclosures

U CLERK'S GFFICE

NO. P08 - 13,106

IN THE ESTATE OF § IN THE COUNTY COURT §

VELMA RUTH FITZGERALD, § OF §

DECEASED § HOPKINS COUNTY, TEXAS

CONTESTANTS, FIRST REQUEST FOR ADMISSIONS

TO: Carlton Sewell, 107 Morris Drive, Sulphur Springs, Texas 75482.

COMES NOW, Contestants of the will sponsored by Carlton Sewell, in the above styled

and numbered cause, and pursuant to Rule 198 of the Texas Rules of Civil Procedure, makes the

following Requests for Admissions of Fact.

These requests are being served upon, Carlton Sewell, and you are notified that

Contestants demand that within 30 days after the service of these requests, that Carlton Sewell

specifically admit or deny the facts requested. A failure to specifically answer any request or an

evasive answer to any request will be taken as an admission of truth of such request.

Respectfully submitted,

~~ Chad Cable State Bar No. 03575300 323 Gilmer Sulphur Springs, Texas 75482 Telephone (903) 885-1500 Telecopier (903) 885-7501 COUNSEL FOR CONTESIANTS .

\ \\ ,-"\ :~ .,:: - p J "

'. ·'

CONTESTANTS' FIRST REQUEST FOR ADM1SSJONS

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing instrument has beep.~rvedon Carlton Sewell in accordance with the Texas Rules of Civil Procedure, on this \ · ----+-

day of May, 2010.

iL Certified mail/Return receipt requested Telecopier (fax) Federal Express Courier with Receipt Registered mail/Return receipt requested Regular Mail Personal Hand Delivery

Date: May~ 2010.

CHAD CABLE

E /-\ND CORP.ECT

' ~~C)P~{ CJF OF~!Gl~A,L

CONTESTANTS' FIRST REQUEST FOR ADMISSIONS

REQUEST FOR ADMISSIONS

1 ADMIT or DENY That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her will.

RESPONSE:

2. ADMIT or DENY That throughout the spring and summer of2007, Velma Ruth Fitzgerald was physically and mentally weak enough to be susceptible to undue influence.

RESPONSE:

3. ADMIT or DENY That you influenced Velma Ruth Fitzgerald to the point of subverting and overpowering her mind so that she would execute a new will naming you as sole beneficiary which she would not have done but for your influence.

RESPONSE:

4. ADMIT or DENY That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having contact with her as part of your scheme to exert undue influence over her.

RESPONSE:

5. ADMIT or DENY That one of your techniques for exerting undue influence was to feign romantic love for Velma Ruth Fitzgerald in a seducing manner by physical affection and full on the mouth kissing.

RESPONSE:

6. ADMIT or DENY That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald to change her will to benefit the two of you.

RESPONSE:

7. ADMIT or DENY That you told the White brothers in Vernon that Velma RuthFitzgeraldwas not competent when she signed their lease contract.

RESPONSE: CT

CONTESTANTS' FIRST REQUEST FOR ADMISSIONS

f

"\

8. ADMIT or DENY That you converted funds belonging to Velma Ruth Fitzgerald to your own benefit prior to her death.

RESPONSE:

9. ADMIT or DENY That you breeched your fiduciary duty to Velma Ruth Fitzgerald by profiting from the use of her power of attorney prior to her death.

RESPONSE:

10. ADMIT or DENY That you misrepresented the nature of Velma Ruth Fitzgerald's mental independence to Ray I ohnson and his staff.

RESPONSE:

11. ADMIT or DENY That you had no contact with Velma Ruth Fitzgerald for years prior to accompanying Truitt and Laura Sewell to Dallas to visit her in a nursing home.

RESPONSE:

12. ADMIT or DENY That you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong friend, Eurice Lee White.

RESPONSE:

13. ADMIT or DENY That you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life.

RESPONSE:

14. ADMIT or DENY That Velma Ruth Fitzgerald was mentally and physically incapable of resisting your undue influence by August of2007.

RESPONSE:

CONTESTANTS' FIRST REQUEST FOR ADMISSIONS

(

15. ADMIT or DENY That the August 8, 2007 will of Velma Ruth Fitzgerald is invalid and should be set aside.

RESPONSE:

16. ADMIT or DENY That you are liable for damages and attorney fees to the contestants.

RESPONSE:

NO. POS-13106

IN THE ESTATE OF § IN THE COUNTY COURT §

VELMA RUTH FITZGERALD, § AT LAW OF §

DECEASED § HOPKINS COUNTY, TEXAS

PROPONENT CARL TON SEWELL'S RESPONSES TO CONTESTANTS' FIRST REQUEST FOR ADMISSIONS

TO: Contestants, by and through their attorney of record, Mr. Chad Cable, 323 Gilmer Street, Sulphur Springs, Texas 75482.

NOW COMES, CARLTON SEWELL, Proponent, and makes this his Responses to

Contestants' First Request for Admissions pursuant to the Texas Rules of Civil Procedure.

Respectfully submitted,

CURTIS, ALEXANDER, McCAMPBELL & MORRIS, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 Tel: (903) 473-2297 Fax: (903) 473-3069

;f /)/} (

By:& ~(~,!///{ ~ ~ . Brad Mccampbell State Bar No. 13358000 ATTORNEYS FOR PROPONENT

Certificate of Service

I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on , 2015.

ItJ d."'12A 2::'~t=

McCampbe~ J. Brad _

RESPONSE TO ADMISSIONS

1. ADMIT or DENY That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her will.

RESPONSE: DENY.

2. ADMIT or DENY That throughout the spring and summer of 2007, Velma Ruth Fitzgerald was physically and mentally weak enough to be susceptible to undue influence.

RESPONSE: Carlton Sewell objects to this request because it calls for admission or denial of a statement concerning another person's state of mind. Without waiving the foregoing objection, DENY.

3. ADMIT or DENY That you influenced Velma Ruth Fitzgerald to th.e point of subverting and overpowering her mind so that she would execute a new will naming you as sole beneficiru.y which she would not have done but for your influence.

RESPONSE: Carlton Sewell objects to this request because it calls for admission or denial of a statement concerning another person's state of mind. Without waiving the foregoing objection, DENY. .

4. ADMIT or DENY · That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having contact with her as pait of your scheme to exert undue influence over her.

RESPONSE: DENY.

5. ADMIT or DENY That one of your techniques for exerting undue influence was to feign romantic love for Velma Ruth Fitzgerald in a seducing manner by physical affection and full on the mouth kissing.

RESPONSE: DENY.

CARLTON SEWELL'S RESPONSES TO REQUEST FORADMISSIONS Page 2 of 4 6. ADMIT or DENY ·That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald to change her will to benefit the two of you.

RESPONSE: DENY.

7. ADMIT or DENY That you told the White brothers in Vernon that Velma Ruth Fitzgerald was not competent when she signed their lease contract.

RESPONSE: DENY.

8. ADMIT or DENY That you converted funds belonging to Velma Ruth Fitzgerald to your own benefit prior to her death.

RESPONSE: DENY.

9. ADMIT or DENY That you breeched your fiduciary duty to Velma Ruth Fitzgerald by profiting from the use of her power of attorney prior to her death.

RESPONSE: Carlton Sewell objects to this request for the reason that it requests a response concerning a matter (breach of fiduciary duty) that is not a part of Contestants' pleadings. Without waiving the foregoing objection, DENY.

10. ADMIT or DENY That you misrepresented the nature of Velma Ruth Fitzgerald's mental independence to Ray Johnson and his staff.

RESPONSE: DENY.

11. ADMIT or DENY That you had no contact with Velma Ruth Fitzgerald for years prior to accompanying Truitt and Laura Sewell to Dallas to visit her in a nursing home.

RESPONSE: ADMIT

Page 3 of 4

12. ADMIT or DENY That you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong friend, Eurice Lee White.

RESPONSE: DENY.

13. ADMIT or DENY That you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life.

RESPONSE: DENY.

14. ADMIT or DENY That Velma Ruth Fitzgerald was mentally and physically incapable of resisting your undue influence by August of 2007.

RESPONSE: Carlton Sewell objects to this request for the reason that this request assumes that Sewell unduly influenced Velma Ruth Fitzgerald which he has denied in Request #1 above. Sewell also objects to this request because it calls for admission or denial of a statement concerning another person's state of mind. Without waiving the foregoing objection, Sewell DENIES that he exerted undue influence over Ms. Fitzgerald and DENIES that she was mentally or physically incapable by August of 2007.

15. ADMIT or DENY That the August 8, 2007 will of Velma Ruth Fitzgerald is invalid and should be set aside.

RESPONSE: Carlton Sewell objects to this request for the reason that this request seeks Sewell's admission or denial of a conclusion of law. Without waiving this objection, DENY.

16. ADMIT or DENY That you are liable for damages and attorney fees to the contestants.

RESPONSE: Carlton Sewell objects to this request for the reason that this request seeks Sewell's admission or denial of a conclusion oflaw. Furthermore, that the statement is vague and unclear. Without waiving this objection, DENY.

CARLTON SEWELL'S RESPONSES TO REQUEST FOR ADMISSIONS Page4 of 4

CE

CURTIS, A_..JXANDER, MCCAMPBELL & MOi..idS, P.C.

ATTORNEYS AT LAW

NO. I PLANTERS STREET

HAROLD F. CURTIS, JR. (1931-2006) P.O. Box38 !VAN ALEXANDER, JR. (1932-2013) EMORY, TEXA3 75440-0038 J. BRAD MCCAMPBELL (903) 473-2297 LEAH CURTIS MORRIS (903) 473-3069 FAX GEORGE IVAN ALEXANDER PHILIP D. ALEXANDER EMORY• GREENVILLE

February 2, 2015

County Clerk of Hopkins County P.O. Box 391 Sulphur Springs, Texas 75483

RE: Cause No. POB-13106; In the Estate of Velma Ruth Fitzgerald, Deceased In the County Court at Law of Hopkins County, Texas Our File No.: 7049-13

Dear Clerk:

Enclosed please find the original and one copy of a Motion to Withdraw Deemed Admissions for filing in the above-referenced case.

Please return the file-marked copy to our office in the enclosed self-addressed envelope.

By copy of this letter, I am forwarding a true and correct copy of this Motion to opposing counsel. ·

Thank you for your assistance in this matter.

cc: Mr. Chad Cable CHAD CABLE LAW OFFICE 323 Gilmer Street Sulphur Springs, Texas 75482 By CMRRR# 7012 3050 0000 7906 5115

Honorable Amy Smith Hopkins County Court at Law 119 Church Street Sulphur Springs, Texas 75482

<!~·

: ~ ~·'!_.,.,..,

NO. POS-13106

IN THE ESTATE OF ) IN THE COUNTY COURT )

VELMA RUTH FITZGERALD ) AT LAW OF )

DECEASED ) -:>:n--;

,",/)Q

--l;; 1 I --<u, er C)~_:

CONTESTANTS' RESPONSE TO CARLTON SEWELL'S Mtj!I0~,1'0 -o WITHDRAW DEEMED ADMISSIONS fTi -0

;;.::=:·1 Lv

c: ..

TO YHE HONORABLE JUDGE OF SAID COURT: (_i)

COME NOW Truitt Sewell and Janet Neal Stanley, Contestants, filing this their Response to

Carlton Sewell's Motion to Withdraw Deemed Admissions, and would respectfully show the Court as

follows:

I.

EVIDENCE

For the purposes ofthis Response, Contestants rely on the following:

A. Certificate of Deemed Admissions, from Request For Admissions served on Carlton

Sewell on May 13, 2010 and not answered; attached to this response as Exhibit A, and incorporated by

reference into this response as if fully set forth herein.

B. The Affidavit of Chad Cable; attached to this response as Exhibit B, and incorporated by

reference into this response as if fully set forth herein.

II.

FACTS

On May 13, 2010, Contestants sent Carlton Sewell a Request For Admissions by certified mail,

return receipt requested. Aff. of Chad Cable, para 3. Carlton Sewell, despite signing the green card, ,-

never responded to the Request. Id. The Admissions were, therefore, deemed admitted on June 15,

2010, without the requirement of a court order.

Carlton Sewell continued to engage in other discovery, including pro se Interrogatories and

Request For Production, both dated June 7, 2010. Aff. of Chad Cable, para. 4. Carlton Sewell, by and

through his attorney, Frank Bauer, also took two depositions on August 16, 2011, deposing Truitt

Sewell and Laura Sewell. Id. Contestants engaged in no other discovery except a Request For

Disclosures dated October 8, 2012. Id.

On January 12, 2015, the day of trial and before jury selection, Contestants filed their

Certificate of Deemed Admissions. Affidavit of Chad Cable, para. 7. At Carlton Sewell's request, the

Court excused the jury panel and delayed the trial for purposes of permitting Carlton Sewell to prepare

and file a motion to withdraw deemed admissions. Id.

III.

Movant Fails to Establish "Good Cause"

A person moving for withdrawal of deemed admissions bears the burden of establishing I)

good cause; and, 2) the absence of undue prejudice. Hewitt v. Roberts, 2013 WL 398940, *2 (Tex.App.-

Corpus Christi 2013).

Good cause exists where the failure to respond to the request for admissions was the result of an

accident or mistake and was not intentional or the result of conscious indifference. Marino v. King 355

S.W.3d 629, 633 (Tex.2011).

Movant's stark failure in this case is his failure to establish "good cause." Movant appears to

rely exclusively on the fact that he was a pro se litigant as being, ipso facto, sufficient to establish

"good cause." His status as a prose litigant is not, ipso facto, sufficient to establish "good cause."

Two cases from the Fort Worth Court of Appeals make it plain that ''pro se" status is not

sufficient to establish "good cause."

In the case Vann v. Gaines, 2007 WL 865870, *2 (Tex.App.-Fort Woqh 2007) the court noted

that, unlike the appellant in Wheeler, admissions, but went on to state that,

In any event, while a lack of understanding of pre-trial procedure by a pro se litigant might be proof of good cause to withdraw deemed admissions, a conscious indifference is not. Here, appellant was given two separate requests for admissions by appellees ... Appellant ignored both requests ... Unlike the pro se litigant in Wheeler, appellant showed no good cause for not attempting to respond earlier.

Again, in Jones v. Citibank (South Dakota), NA., 235 S.W.3d 333 (Tex.App. - Fort Worth

2007), the Fort Worth Court of Appeals stated:

In any event, while a lack of understanding of pre-trial procedure by a pro se litigant might be proof of good cause to withdraw deemed admissions, a conscious indifference is not. Here, unlike the pro se litigant in Wheeler, appellant complied with the discovery rules by responding timely to the first request for admissions, but she showed no good cause for failing to even attempt to respond on time to the second request for admissions. Id.

It is Movant's burden to establish accident or mistake. In the instant case, Movant fails to

establish that his failure to respond was due to accident or mistake and was not the result of conscious

indifference.

First of all, Movant was notified of the consequences of a failure to answer. On the face of the

Contestants' First Request For Admissions it states, "A failure to specifically answer any request or an

evasive answer to any request will be taken as an admission of truth of such request." If Carlton Sewell

read this admonition and then decided not to answer, such decision would amount to conscious

indifference. Carlton Sewell can find no footing in the case of Wheeler v. Green, 157 S.W.3d 439, 443

(Tex.2005)(per curiam). In that case, a pro se litigant tried to comply with the rules relating to requests

for admissions, but because she was unfamiliar with the mail box rule, she served her responses 2 days

late. There was nothing in that case showing any conscious indifference. In Wheeler, the result would

likely have been different if the mailbox rule had been stated on the face of the Admissions Request

document.

to a conscious indifference. A decision not to read the document cannot be excused by the lack of legal

knowledge. A person would know that the document was significant by the fact that it was sent

certified mail, return receipt requested. Whether a pro se litigant or a seasoned attorney, a decision not

to read a document is a decision to ignore it. A decision to ignore it is conscious indifference. See

Gaines, 2007 WL 865870 at *2.

Therefore, Movant has failed to meet his burden of establishing "good cause," i.e., that the

failure to answer was the result of accident or mistake and not the result of conscious indifference.

IV.

Movant Fails to Establish Absence of Undue Prejudice

The absence of undue prejudice is established by showing that a withdrawal of deemed

admissions will not delay trial nor significantly hamper the opposing party's ability to prepare for trial.

Marino v. King 355 S.W.3d 629, 633 (fex.2011).

There is considerable discovery that Contestants did not conduct in reliance on the deemed

admissions. If not for the deemed admissions, Contestants would have sought to depose 1) Tiffany

Bassham, who was the administrator of the assisted living facility Carlton Sewell had Mrs. Fitzgerald

sequestered in; 2) Alice Davis, who was one of the paid sitters; and, 3) DeeAnn Landers, the bank

officer familiar with the unusual facts involving Carlton Sewell's use of the power of attorney, executed

by Mrs. Fitzgerald in his favor, to purchase a rural home on several acres with an $80K down payment

and a similar sized note with the local bank. See Affidavit of Chad Cable, para. 5. Contestants would

also seek to obtain the bank records pertaining to that transaction.

Critical to Contestants' case is the anticipated testimony of Truitt Sewell, who is one of the

Contestants and the brother of Carlton Sewell. His anticipated testirrioriy is the most probative

evidence in the entire case. He would testify that Carlton Sewell asked. lrj.m to help Carlton get this information by live testimony.

Truitt Sewell became sick with cancer in the Fall of 2014. Aff. of Chad Cable, para. 6. His

health has deteriorated to the point that he probably will not have the capacity to testify at trial because

of the delay of trial from January 12, 2015, to some undetermined point in the future. Id. Thus,

Contestants' case is highly prejudiced by the delay of trial.

Additionally, the case of Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803, n. 5 (Tex.App.-

Houston [1st Dist] 1999) is instructive. There, trial was commenced more than 2 years after the

requests for admissions were deemed admitted. After trial began, and after 3 witnesses had testified

and 10 exhibits had been admitted, plaintiffs sought to introduce the deemed omissions, which caught

the defendant unaware, because the deemed admissions were the result of a clerical error by the staff of

defendant's attorney, who was ignorant of the mistake until the day of trial. The trial court granted the

defendant leave to withdraw the deemed admissions but offered plaintiffs a mistrial in order for

plaintiffs to conduct the discovery plaintiffs had not conducted in reliance on the deemed admissions.

The plaintiffs refused the mistrial. From an unfavorable result, plaintiffs appealed. The 1st District

Court of Appeals reversed, holding that the plaintiffs were unduly prejudiced because there was

considerable discovery that plaintiffs did not conduct in reliance on the deemed admissions. The court

of appeals also noted that the plaintiffs "were not required to accept a mistrial - plaintiffs were entitled

to rely on the guiding rules and principles set out in the Rules of Civil Procedure regarding deemed

admissions." The court of appeals did not blame the plaintiffs, in the least, for waiting over two years,

and not until the middle of trial, before asserting the deemed admissions.

Like the plaintiffs in Morgan, the Contestants here have substantial discovery which they did

not seek to conduct in reliance on the deemed admissions. Aff. of Chad Cable, para. 5. Contestants

here, upon filing their Certificate of Deemed Admissions, "were entitled· to rely on the guiding rules

and principles set out in the Rules of Civil Procedure regarding deemed admissions." In Morgan, the

51Page

court permitted withdrawal of deemed admissions during the middle of trial. In the instant case, the

Court delayed the trial of the case for the purpose of entertaining a motion for withdrawal of deemed

admissions. Aff. of Chad, para. 7. Delay of trial is a quintessential form of undue prejudice. Twenty

cases in Texas substantially state: "Undue prejudice depends on whether withdrawing an admission will

delay trial or significantly hamper the opposing party's ability to prepare for it." Wheeler v. Green, 157

S.W.3d 439, 443 (Tex.2005)(per curiam)(emphasis added).

In their reliance on the guiding rules and principles set out in the Rules of Civil Procedure,

Contestants have been prejudiced by the delay of trial. Therefore, Movant has failed to establish an

absence of undue prejudice, and the Motion to Withdraw Deemed Admissions should be denied.

v.

Movant Waived the Right to Complain of the Untimeliness of Contestants' Admissions Request

By engaging in substantial discovery after Contestants request for admissions, Movant has

waived any right to complain of the untimeliness of Contestants' request for admissions. The Request

for Admissions was served on May 13, 2010. Subsequent to that time, Movant, acting pro se, served

on Contestants a set of Written Interrogatories and a Request For Production, both dated June 7, 2010.

Aff. of Chad Cable, para. 4. Subsequently, Movant, by and through his attorney, Frank Bauer, also

conducted two depositions: the Deposition of Truitt Sewell on August 16, 2011, and the Deposition of

Laura Sewell on the same date. Id. Therefore, Movant has conducted substantial discovery since

Contestants served on Movant the Request for Admissions and he has, therefore, waived any right to

complain of the untimeliness of the Request for Admissions.

VI.

PRAYER

For the foregoing reasons, Contestants pray the Court to deny Carlton Sewell's Motion to

/ /,

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61Page

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Withdraw Deemed Admissions, and for such other relief, at law or in equity, to which they may be

justly entitled.

Chad Cable State Bar No. 03575300 323 Gilmer Sulphur Springs, TX 75482 Telephone (903) 885-1500 Telecopier (903) 885-7501

ATTORNEY FOR CONTESTANTS

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoin~yistrument was served on all

parties pursuant to the Texas Rules of Civil Procedure on this the tb ·~ay of April, 2 15.

Chad Cable

Via Telecopier (903) 473-3069 Brad McCampbell CURTIS, ALEXANDER, McCAMPBELL & MORRIS P.O. Box 38 Emory, Texas 75440

i 71Page -~i@:Jft/

Debbie Shidey, County Clerk NO. P08- 13,106

ESTATE OF § IN THE COUNTY COURT §

VELMA RUTH FITZGERALD, § DECEASED § HOPKINS COUNTY, TEXAS

CERTIFICATE OF DEEMED ADMISSIONS

The Request for Admissions attached hereto as Exhibit "A" were served upon the

opposing party, Carlton Sewell, via certified mail on May 13, 2010.

The return receipt for service is attached hereto as Exhibit "A".

Undersigned counsel hereby certified that no response to said Request for Admissions

was ever served. i Signed this /o2 day of January, 2015.

Chad Cable State Bar No. 03575300 323 Gilmer Street Sulphur Springs, Texas 75482 Telephone (903) 885-1500 Telecopier (903) 885-7501

ATTORNEY FOR CONTESTANTS

CERTIFICATE OF DEEMED ADMISSIONS Pagel

F~LED lf\~ ~-~OF!<.i;\!.:.-: COUMTY CLER S CFFiCE

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CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing instrument was hand delivereJl. to opposing counsel in accordance with the Texas Rules of Civil Procedure, on this IZ~ay ofJanuary, 2015.

~ Chadcie

CERTIFICATE OF DEEMED ADMISSIONS

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CHAD CABLE

LAWYER

323 GILMER

SULPHUR SPRINGS, TEXAS 75482 TELEPHONE: (903) 885-1500 TEI.ECOPIER: (903) 885-7501

May 13, 2010

Via Cert~fied Mail 7005 1820 0007 7656 6578 Return Rece;pt Requested & Regular Mail

Mr. Carlton Sewell 107 Morris Drive Sulphur Springs, Texas 75482

RE: CauseNo.POS-13106

Estate of Velma Ruth Fitzgerald, Deceased Hopkins County, Texas

Dear Mr. Sewell:

Enclosed are the following:

l. Motion for Appointment of Independent Executor; and

2. Order Setting Hearing.

Sincerely,

Chad Cable

CC/lar Enclosures {' "

CHAD CABLE

LAWYER

323 GILMER

SULPHUR SPRINGS, TEXAS 75482 TELEPHONE: (903) 885-1500 TELECOPIER: (903) 885-7501

May 13, 2010

Via Certifi.ed Mail 7005 1820 0007 7656 6578 Return Receipt Requested & Regular Mail

Mr. Carlton Sewell 107 Morris Drive Sulphur Springs, Texas 75482

RE: Cause No. P08-13l06 Estate of Velma Ruth Fitzgerald, Deceased Hopkins County, Texas

Dear Mr. Sewell:

Enclosed is the following:

1. Request for Admissions

Sincerely,

Chad Cable

CC/lar Enclosures

CC)LJ

NO. P08 - 13,106

IN THE ESTATE OF § IN THE COUNTY COURT §

VELMA RUTH FITZGERALD, § OF §

DECEASED § HOPKINS COUNTY, TEXAS

CONTESTANTS' FIRST REQUEST FOR ADMISSIONS

TO: Carlton Sewell, 107 Morris Drive, Sulphur Springs, Texas 75482.

COMES NOW, Contestants of the will sponsored by Carlton Sewell, in the above styled

and numbered cause, and pursuant to Rule 198 of the Texas Rules of Civil Procedure, makes the

following Requests for Admissions of Fact.

These requests are being served upon, Carlton Sewell, and you are notified that

Contestants demand that within 30 days after the service of these requests, that Carlton Sewell

specifically admit or deny the facts requested. A failure to specifically answer any request or an

evasive answer to any request will be taken as an admission of truth of such request.

Respectfully submitted,

~~ Chad Cable State Bar No. 03575300 323 Gilmer Sulphur Springs, Texas 75482 Telephone (903) 885-1500 Telecopier (903) B8.5-7501 COUNSEL FOR CONTESTANTS

CONTESTANTS' FIRST REQUEST FOR ADMISSIONS

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing instrument has beep.~ed on Carlton Sewell in accordance with the Texas Rules of Civil Procedure, on this __\--"~=q-_day of May, 2010.

1L Certified mail/Return receipt requested Telecopier (fax) Federal Express Courier with Receipt Registered mail/Return receipt requested Regular Mail Personal Hand Delivery

Date: May~ 2010.

CHAD CABLE

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CONTESTANTS' FIRST REQUEST FOR ADMISSIONS 2

REQUEST FOR ADMISSIONS

ADMIT or DENY That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her will.

RESPONSE:

2. ADMIT or DENY That throughout the spring and summer of 2007, Velma Ruth Fitzgerald was physically and mentally weak enough to be susceptible to undue influence.

RESPONSE:

3. ADMIT or DENY That you influenced Velma Ruth Fitzgerald to the point of subverting and overpowering her mind so that she would execute a new will naming you as sole beneficiary which she would not have done but for your influence.

RESPONSE:

4. ADMIT or DENY That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having contact with her as part of your scheme to exert undue influence over her.

RESPONSE:

5. ADMIT or DENY That one of your techniques for exerting undue influence was to feign romantic love for Velma Ruth Fitzgerald in a seducing manner hy physical affection and full on the mouth kissing.

RESPONSE:

6. ADMIT or DENY That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald to change her will to benefit the two of you.

RESPONSE:

7. ADMIT or DENY That you told the White brothers in Vernon that Velma Ruth Fitzgerald was not competent when she signed their lease contract.

RESPONSE:

CONTESTANTS' FIRST REQUEST FOR ADMISSIONS

r.

/ '

8. ADMIT or DENY That you converted funds belonging to Velma Ruth Fitzgerald to your own benefit prior to her death.

RESPONSE:

9. ADMIT or DENY That you breeched your fiduciary duty to Velma Ruth Fitzgerald by profiting from the use of her power of attorney prior to her death.

RESPONSE:

10. ADMITorDENY That you misrepresented the nature of Velma Ruth Fitzgerald's mental independence to Ray Johnson and his staff

RESPONSE:

11. ADMIT or DENY That you had no contact with Velma Ruth Fitzgerald for years prior to accompanying Truitt and Laura Sewell to Dallas to visit her in a nursing home.

RESPONSE:

12. ADMIT or DENY That you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong friend, Eurice Lee White.

RESPONSE:

13. ADMIT or DENY That you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life.

RESPONSE:

14. ADMITorDENY That Velma Ruth Fitzgerald was mentally and physically incapable ofresisting your undue influence by August of 2007.

RESPONSE:

I

I: I .

CONTESTANTS' FIRST REQUEST FOR ADMISSIONS 4 I . ;

15. ADMIT or DENY That the August 8, 2007 will of Velma Ruth Fitzgerald is invalid and should be set aside.

RESPONSE:

16. ADMIT or DENY That you are liable for damages and attorney fees to the contestants.

RESPONSE:

' < ':~

CONTESTANTS' FIRST REQUEST FOR ADMISSIONS

NO. POS-13106

IN THE ESTATE OF ) IN THE COUNTY COURT )

VELMA RUTH FITZGERALD ) AT LAW OF )

DECEASED ) HOPKINS COUNTY, TEXAS

AFFIDAVIT OF CHAD CABLE

STATE OF TEXAS *

*

COUNTY OF HOPKINS * BEFORE ME, the undersigned authority, personally appeared Chad Cable, who, upon oath or solemn affirmation, deposed as follows:

1. My name is Chad Cable. I am over the age of eighteen and am, in all respects, competent to make this affidavit. The matters stated herein are within my personal knowledge and are true and correct.

2. I am an attorney licensed to practice law in the State of Texas. I have practiced law in Hopkins County for the past 35 years. I represent the Contestants in the above styled and numbered case,

3. Acting as attorney for the Contestants, I served on Carlton Sewell ("Carlton") Requests for Admissions dated May 13, 2010. Carlton failed to respond to such Request for Admissions. Therefore, according to Texas Rules of Civil Procedure, Rule 198.2(c), the matters are deemed admitted without the necessity of a court order.

4. Since serving the Requests for Admissions, Carlton has served on me a Set of Written Interrogatories (June.7, 2010); A Request For Production (June 7, 2010); and has conducted a Deposition of Truitt Sewell (August 16, 2011); and a Deposition of Laura Sewell (August 16, 2011. Since May 12, 2010, the only discovery conducted by me was a Request For Disclosures dated October 8, 2012.

5. In reliance on the deemed admissions, I did not seek to depose 1) Tiffany Bassham, head administrator of the assisted living center in which Velma Ruth Fitzgerald was sequestered by Carlton; 2) Alice Davis, the paid sitter of Velma Ruth Fitzgerald; and 3) Deeanna Landers, the bank officer involved in Carlton's purchase of a rural home on several acres for a down payment of $80,000.00, together with a like amount borrowed through the bank, which Carlton purchased under the power of attorney executed in his favor by Velma Ruth Fitzgerald.

6. Truitt Sewell was diagnosed with cancer in the Fall of 2014. ·His. health has rapidly deteriorated since that time to the extent that Truitt Sewell is likely incapacitated to such an extent that he will not be able to testify at trial.

u

7. On January 12, 2015, the day of trial, I filed a Certificate of Deemed Admissions. At Carlton Sewell's request, the Court delayed the trial for the purpose of entertaining a motion to withdraw the deemed admissions.

8. FURTHERAFFIANT SAYETH NOT.

CHAD CABLE

SWORN TO, or solemnly affirmed, before me, the day of April, 2015.

rsigned authority, on this the _h C.---=.-~\~~~\~~~~~·~·,)

:-:_ ;~JE ;~'l~\~D COPY OF OR!G1Nf\L FiLED IN HOPK!NS COUNTY CLERK'S CFFICE

NO. POS-13106

IN THE ESTATE OF § IN THE COUNTY COURT §

VELMA RUTH FITZGERALD, § AT LAW OF §

DECEASED §

AFFIDAVIT IN SUPPORT OF !

(J-11

MOTION TO WITHDRAW DEEMED ADMISSIONS\ ":J{::::

·~~::D

n ~- : ',::; :::o BEFORE ME, the undersigned Notary Public, on this day personally a~gear~~~ -o .;'~;;_;

Pl _.,., -< _ ,,_l 0 CARLTON SEWELL, who after being duly sworn, did depose and state as fol~ws: ;:~~ -{ - J;> "My name is CARLTON SEWELL. I am the Movant/Proponent in the a'bove-referencedn cause. I have personal knowledge of the facts stated in the Motion to Withdraw Deemed Admissions and they are true and correct."

Further Affiant sayeth not. SIGNED on April 1 '2015.

CARLtTON SEWELL i.

SUBSCRIBED AND SWORN TO BEFORE ME on this ~day of April, 2015, to certify which witness my hand and official seal.

SUSAN PEREZ

My Commission Expires

August 24, 2018

TRUE AND CORRECT COPY OF ORIGINAL FILED IN HOPl<li··IS COUNTY CLERK'S CFFICE

NO. P08 - 13,106

ESTATE OF § IN THE COUNTY GQJiJ:Jt1\!~!~-SY ,,, ·'"'·, r '.,·,.cc\;<.

§

VELMA RUTH FITZGERALD, § fJ . . .. nr:-~=n.irv DECEASED § HOPKINS COUNTY~TEXAS___ "' "·.

ORDER DENYING MOTION TO WITHDRAW DEEMED ADMISSIONS, SHEDULING SUMMARY JUDGMENT HEARING AND

REQUIRING MEDIATION

The Court considered Probate Applicant Carlton Sewell' s Motion to Withdraw

deemed Admissions and Contestant's response with argument of respective counsel on

April ?1h, 2015.

The Motion to Withdraw Deeded Admissions is hereby denied.

Noting the Contestants have filed a Motion for Summary Judgment, a hearing on

that motion is hereby scheduled for May 21st, 2015 at 9:00 a.m.

Finally, the parties are Ordered to mediation, to be completed prior to May 21st,

2015 with a mediator to be agreed upon by the parties.

Absent an agreement within five days the Court will name a mediator.

The cost of the mediator shall be evenly divided between the parties.

Signed this \ \...\ day of April, 2015.

Judge

ORDER DENYING MOTION TO WITHDRAW DEE , , COPY OF ORIGINAL FILED IN HOPKINS C·v'll._,:r,,,

!\.1 i~ ·c-f:?•.l''S e L"'; 1

i ..v ~ \I\. ccFICE g -

CLERK'S CERTIFICATE_

THE STATE OF TEXAS

COUNTY OF HOFKINS

J, Debbie 5hirle!;I, Clerk of the Count!;! Court at Law in and tor Hopkins Count!;!, Texas, do hereb!;I certit!:J that the following are a true and correct cop!;! ot the original papers in the f robate of Velma R.uth Fitzgerald Deed. Cause Number fl 0-1) l 06 As the same, appear on record in the Frobate R.ecords ot Hopkins Count!;!, Texas.

Application To Frobate Will As Muniment ot Title Last Will and Testament · Citation in Frobate Order Frobating Will As Muniment ot Title Application For Frobate ot Will And For Letters Testamentar!;I Opposition To Frobate ot Will Citation in Frobate OrderotTranster Opposition To Application For Frobate ot Will & For Letters T estamentar!;I & Answer To Opposition ot Will Amended Application For Frobate ot Will & For Letters T estamentar!;I Motion For Withdrawal ot Counsel Consent To Withdrawal ot Counsel Order Granting Motion For Withdrawal of Counsel Motion For Appointment ot Independent E_xecutor Order On Motion To TransterContested frobate Matter Order Appointing Fersonal R.epresentative (Temporar!;I) Fending Contest Notice ot Appearance & R.e9uest For Notices &5ervice ot f apers Letter From Frank5auer Affidavit Letter From Frank5auer& Certificate of Written Discover!;! Supplement To Oppostion For Frobate ot Will & For Letters T estamentar!;I & Answer To Opposition To Frobate ot Will Motion For Withdrawal ot Counsel

Order On Motion for Withdrawal of Counsel Appearance of Counsel Certificate of Deemed Admissions Motion To Withdraw Deemed Admissions Contestants' Response To Carlton 5ewell's Motion To Withdraw Deemed Admissions

Affidavit In 5upport of Motion To Withdraw Deemed Admissions Order Denying Motion To Withdraw Deemed Admissions, 5cheduling5ummary Judgment Hearing & Requiring Mediation

Given under my Hand and 5eal of Office at 5ulphur 5prings, Texas, this

29th da_y of May, 201 5

Debbie 5hirley, County Clerk. Hop kins County, T ex3s

5y t1 QQ..-t'o.Qe., C~ Of L , Deputy Heather Cla1-k

VOLUME 2

No. _____________________

In Re CARLTON SEWELL, Relator

ELECTRONIC TRANSCRIPT OF REPORTER’S RECORD OF HEARING (REPORTER’S VOLUME 1 OF 1)

TRIAL COURT CAUSE NO. P08-13106

IN THE ESTATE OF * IN THE COUNTY COURT

*

VELMA RUTH FITZGERALD * AT LAW OF

*

DECEASED * HOPKINS COUNTY, TEXAS

FITZGERALD - VOLUME 1 OF 1 - 04/07/15

· · · · · · · · · ·REPORTER'S RECORD · · · · · · · · ·VOLUME 1 OF 1 VOLUME · · · · · ··TRIAL COURT CAUSE NO. P08-13106 · ·IN THE ESTATE OF· · · · ··)··IN THE COUNTY COURT · · · · · · · · · · · · · ·) ·VELMA RUTH FITZGERALD,· ··)··AT LAW · · · · · · · · · · · · · ·) ·DECEASED· · · · · · · · ··)··HOPKINS COUNTY, TEXAS · · · · · · · · · · · · · · · · ··*************************** · · · · · · · · · ·TRANSCRIPTION OF · · · · · · · · ·ELECTRONIC RECORDING · · · · · · · · ·HEARING ON MOTION TO · · · · · · ··WITHDRAW DEEMED ADMISSIONS · · · · · · ··*************************** · · · · · · · · · · · · · ··On the 7th day of April, 2015, the following · ·proceedings came on to be heard in the above-entitled · ·and numbered cause before the Honorable Amy M. Smith, · ·Judge Presiding, held in Sulphur Springs, Hopkins · ·County, Texas: · · · · · ··PROCEEDINGS RECORDED ELECTRONICALLY BY BIS

Page 2

FITZGERALD - VOLUME 1 OF 1 - 04/07/15

·1· · · · · · · · · ·A P P E A R A N C E S · ·· ·2· ·FOR THE PROPONENT, CARLTON SEWELL: · ·· · ··Mr. J. Brad McCampbell ·3· · · ··Curtis, Alexander, McCampbell & Morris · · · ··Post Office Box 38 ·4· · · ··Emory, Texas··75440 · ·· · ··903-473-2297 ·5· · · ··SBOT #13358000 · ·· ·6· · · ··FOR THE CONTESTANTS: ·7· · · ··Mr. Chad Cable · ·· · ··Law Office of Chad Cable ·8· · · ··323 Gilmer Street · ·· · ··Sulphur Springs, Texas··75482 ·9· · · ··903-885-1500 · ·· · ··SBOT #03575300 10· · · ·· 11· · · ·· 12· · · ·· 13· · · ·· 14· · · ·· 15· · · ·· 16· · · ·· 17· · · ·· 18· · · ·· 19· · · ·· 20· · · ·· 21· · · ·· 22· · · · 23· · · ·· 24· · · ·· 25· ·

Jana Atchison Rushing, CSR 903-268-2942

Page 3

FITZGERALD - VOLUME 1 OF 1 - 04/07/15

·1· · · · · · · · · · · · ·VOLUME 1 · ·· ·HEARING ON MOTION TO WITHDRAW DEEMED ADMISSIONS ·2· · · ··APRIL 7, 2015· · · · · · · · · · · · · · · ·PAGE/VOL. ·3· · · ··Proceedings ...............................· ··4··1 ·4· · · ··Argument by Mr. McCampbell ................· ··4··1 ·5· · · ··Argument by Mr. Cable .....................· ·22··1 ·6· · · ··Argument by Mr. McCampbell ................· ·36··1 ·7· · · ··Court's Ruling ............................· ·38··1 ·8· · · ··Reporter's Certificate ....................· ·40··1 ·9· · · ·· 10· · · ·· 11· · · ·· 12· · · ·· 13· · · ·· 14· · · ·· 15· · · ·· 16· · · ·· 17· · · ·· 18· · · ·· 19· · · ·· 20· · · ·· 21· · · ·· 22· · · · 23· · · ·· 24· · · ·· 25· ·

Jana Atchison Rushing, CSR 903-268-2942

Page 4

FITZGERALD - VOLUME 1 OF 1 - 04/07/15

·1· · · · · · · · · ·P R O C E E D I N G S ·2· · · · · · · · ··THE COURT:··All right.··We're on the ·3· ·record, ladies and gentlemen.··This is In the ·4· ·Interest of Velma Ruth Fitzgerald.··Please be seated. ·5· ·And this is a -- a motion brought by Mr. Carlton ·6· ·Sewell -- is that correct -- with his attorney Brad ·7· ·McCampbell? ·8· · · · · · · · ··MR. McCAMPBELL:··Yes, Judge. ·9· · · · · · · · ··THE COURT:··I'm trying to -- here it 10· ·is.··Motion to withdraw deemed admissions.··So we 11· ·have Mr. McCampbell and we have Chad Cable, who is on 12· ·the opposing side, and Mr. Cable has responded. 13· · · · · · · · · · · ·I have looked over this 14· ·carefully, and I'm ready to hear your arguments at 15· ·this time. 16· · · · · · · · ··MR. McCAMPBELL:··Okay.··May it please 17· ·the Court.··Judge, I'd like to kind of start off -- I 18· ·know you have the motion there, and I'm not going to 19· ·read it.··But I want to start off basically where on 20· ·February 14 of 2008, the probate concerning Velma 21· ·Ruth Fitzgerald was transferred to your court. 22· · · · · · · · · · · ·It was a probate as a muniment of 23· ·title and then a subsequent contesting application, 24· ·so on that basis, it was transferred at that time. 25· ·At that time, Mr. Sewell was represented by

Jana Atchison Rushing, CSR 903-268-2942

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·1· ·Mr. Northcutt -- Eddie Northcutt -- and Mr. Cable was ·2· ·representing Janet -- Janet Stanley? ·3· · · · · · · · ··MR. CABLE:··Et al. ·4· · · · · · · · ··MR. McCAMPBELL:··-- and others on a ·5· ·competing application. ·6· · · · · · · · · · · ·Now, where I want to pick up next ·7· ·is basically May of 2008.··Mr. Sewell's deposition ·8· ·was taken by Mr. Cable.··And I believe Mr. Northcutt ·9· ·was there present at the time of the deposition. 10· ·That being the case, that that started the 11· ·commencement of the discovery period.··There wasn't 12· ·any discovery control plan order, per se, so, 13· ·therefore, you've got to kind of fall back on what 14· ·the Rules say about when it starts and ends. 15· · · · · · · · · · · ·In January 2009, this Court 16· ·allowed Mr. Northcutt to withdraw.··And I don't know 17· ·if it was because he -- I don't know if it was 18· ·because he went on the bench at that time or some 19· ·other reason, but anyway, he withdrew.··And there was 20· ·an interim there from January '09 to June of '10 in 21· ·which Mr. Sewell was pro se. 22· · · · · · · · · · · ·June 17 of 2010, is when 23· ·Mr. Bauer -- Frank Bauer -- entered the picture as 24· ·counsel of record for Mr. Sewell.··The reason why I'm 25· ·talking about those two attorneys and their

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·1· ·respective times of service is because between that ·2· ·time, in May of 2010, Mr. Cable, on behalf of his ·3· ·clients, served request for admissions on Mr. Sewell. ·4· · · · · · · · · · · ·And what I say in my motion is ·5· ·that Mr. Sewell believes that the signature on the ·6· ·green card to be his.··He does not recall the ·7· ·document, but he can't deny that signature on the ·8· ·green card.··Now, time goes by without them being ·9· ·answered, and other than the proposed admissions that 10· ·I have attached to my motion to withdraw deemed 11· ·admissions, there never has been an answer in 12· ·response to them. 13· · · · · · · · · · · ·In April of 2013, Frank Bauer 14· ·withdrew.··The Court signed an order on April 23, 15· ·2013.··I was retained in July of 2013.··This all came 16· ·to a head regarding the request for admissions when 17· ·Mr. Cable, on behalf of his clients, filed, the 18· ·morning of jury selection, on January 12 of 2015, a 19· ·certificate of deemed admissions. 20· · · · · · · · · · · ·And in my motion, I basically 21· ·indicate to the Court that that was the first time 22· ·that I was even aware that admissions had been sent. 23· ·And in my motion, I've also indicated the same of 24· ·Mr. Bauer.··I obtained the file from Mr. Bauer when I 25· ·got hired.··Actually, I got his file, and there was

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·1· ·not one mention of the request for admissions in ·2· ·Mr. Bauer's file.··And I would say to the Court that ·3· ·at no time did Mr. Sewell tell myself or Mr. Bauer ·4· ·about any request for admissions. ·5· · · · · · · · · · · ·I think the Court knows myself ·6· ·and Mr. Bauer well enough to know that if at some ·7· ·point in time we had found out about request for ·8· ·admissions we would have either, one of two things, ·9· ·filed a motion to withdraw deemed admissions at that 10· ·time or gone ahead and responded to them and see 11· ·where the chips fall. 12· · · · · · · · · · · ·I hope the Court understands how 13· ·sincere I am to say what a surprise it was for me to 14· ·see the certificate of deemed admissions that 15· ·morning.··As the Court knows, the Court sent the jury 16· ·home -- jury panel home and allowed me time to 17· ·present this motion to withdraw deemed admissions, 18· ·and I want to thank the Court, first of all, for 19· ·graciously continuing for a couple of settings due to 20· ·the illness and subsequent passing of my father.··I 21· ·appreciate that. 22· · · · · · · · · · · ·The purpose of our motion is to 23· ·try to convince the Court that there is due cause to 24· ·order that the deemed admissions be withdrawn and 25· ·that it would not serve -- that would not serve undue

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·1· ·prejudice to the other side.··And basically what ·2· ·we're doing, Judge, is we're looking at Section 198.3 ·3· ·of the Texas Rules of Civil Procedure which directly ·4· ·addresses either withdrawing -- allowing the ·5· ·withdrawal or amendment of admissions. ·6· · · · · · · · · · · ·So it's not just a good cause or ·7· ·undue prejudice.··It's both.··Got to show both.··And ·8· ·it ends by saying, and that the presentation of the ·9· ·merits of the action will be subserved by permitting 10· ·the party to amend/withdraw the admissions. 11· · · · · · · · · · · ·As far as the -- the element of 12· ·good cause, I start off by giving the elements in 13· ·Rule 198.3, and then I go into a little more detail 14· ·by again saying that at the time that the request for 15· ·admissions were submitted, Mr. Sewell was 16· ·representing himself pro se. 17· · · · · · · · · · · ·Now, in no way am I trying to 18· ·condone his failure to answer the admissions.··I want 19· ·the Court to be clear on that.··But what I do want to 20· ·point out is that Mr. Sewell, No. 1, does not even 21· ·remember that document.··But even if he did, that he, 22· ·not being an attorney, did not understand the 23· ·significance or the legal consequences of not 24· ·answering the admissions. 25· · · · · · · · · · · ·And the reason why that's

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·1· ·important is because the way that Mr. Cable and his ·2· ·clients couched the admissions, basically are ·3· ·admissions to the case and not just a -- not just ·4· ·being sent as a discovery tool.··And that's important ·5· ·because, in effect, what the tenor of the admissions ·6· ·do is they -- and I think I say this term -- they gut ·7· ·Mr. Sewell's case. ·8· · · · · · · · · · · ·It -- it -- it basically is ·9· ·admitting Mr. Sewell's admission that there was undue 10· ·influence exerted over (sic) him on Ms. Fitzgerald 11· ·and that Ms. Fitzgerald did not have the testamentary 12· ·capacity to sign her 2007 will.··And so if we had a 13· ·trial on the case and we would not be able to bring 14· ·in something in contradiction to that, then we're 15· ·done. 16· · · · · · · · · · · ·Mr. Cable did choose to send 17· ·these admissions at a time when Mr. Sewell did not 18· ·have counsel.··And again, that -- that -- that kind 19· ·of added or compounded to the problem that I face 20· ·today.··Again, the discovery period started May 13, 21· ·2010, with the taking of Mr. Sewell's deposition. 22· ·And so if the Court were to look at the discovery 23· ·period ending in nine months, then the request for 24· ·admissions would be untimely under the Rules. 25· · · · · · · · · · · ·I'm not going to deny that both

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·1· ·parties did engage in discovery well after that. ·2· ·They did.··But if you look at just the issue if ·3· ·request for admissions were timely -- ·4· · · · · · · · ··THE COURT:··So you're saying the ·5· ·discovery was -- well, was sort of used on both sides ·6· ·after the -- the end date of the discovery? ·7· · · · · · · · ··MR. McCAMPBELL:··Yes, ma'am.··But if ·8· ·you go by the nine-month rule, then discovery would ·9· ·have -- 10· · · · · · · · ··THE COURT:··Ended. 11· · · · · · · · ··MR. McCAMPBELL:··-- procedurally ended 12· ·in February of -- excuse me -- February of 2011. 13· · · · · · · · ··THE COURT:··Okay. 14· · · · · · · · ··MR. McCAMPBELL:··I don't think the 15· ·Court's file -- and I haven't found anything where 16· ·there was any kind of agreement between Mr. Cable, 17· ·Mr. Northcutt, or Mr. Sewell that extended the 18· ·discovery.··No written agreement.··And there was 19· ·nothing from the Court giving an order extending the 20· ·discovery.··But discovery did happen afterwards. 21· · · · · · · · ··THE COURT:··All right. 22· · · · · · · · ··MR. McCAMPBELL:··At the time of 23· ·delivering the request for admissions -- and it's 24· ·important to me in this respect, because as a lawyer, 25· ·what we do a lot of times -- what a lot of attorneys

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·1· ·do is, when they send some discovery, they file a ·2· ·certificate of delivery -- or certificate of ·3· ·discovery with the Court that says, on or about a ·4· ·certain day, we sent this to so-and-so.··And the ·5· ·reason why that's done now is because Courts don't ·6· ·want you to file discovery anymore because it's too ·7· ·voluminous.··So it's some proof that you did it. ·8· · · · · · · · · · · ·Now, my -- my review of the ·9· ·Court's file has no such certificate of delivery 10· ·filed by Mr. Cable or by anyone else that those were 11· ·sent to Mr. Sewell.··And the only relevance I would 12· ·give to that, Judge, is that if Mr. Sewell did not 13· ·advise me or Mr. Bauer, there certainly wasn't 14· ·anything in the Court's file to trigger my mind that 15· ·was done. 16· · · · · · · · ··THE COURT:··Do you know if he handed 17· ·Mr. Bauer anything prior to Mr. Bauer's retention 18· ·that would have shown that he got something during 19· ·the time frame? 20· · · · · · · · ··MR. McCAMPBELL:··That my client handed 21· ·him, or Chad? 22· · · · · · · · ··THE COURT:··No.··Your client. 23· · · · · · · · ··MR. McCAMPBELL:··No.··I think my 24· ·answer to that, based on my conversation with my 25· ·client, would be no.

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·1· · · · · · · · ··THE COURT:··Okay. ·2· · · · · · · · ··MR. McCAMPBELL:··And my conversation ·3· ·with Frank Bauer. ·4· · · · · · · · ··THE COURT:··Because he had now Judge ·5· ·Northcutt -- but then Mr. Northcutt was his attorney ·6· ·for a while, correct?··I assume -- ·7· · · · · · · · ··MR. McCAMPBELL:··Yes. ·8· · · · · · · · ··THE COURT:··-- he sent out discovery; ·9· ·is that correct? 10· · · · · · · · ··MR. McCAMPBELL:··I don't -- I'm not 11· ·sure if any written discovery was sent out then.··I 12· ·think during Eddie's time -- and Chad may can answer 13· ·this -- during Eddie's time -- Mr. Northcutt's time, 14· ·Mr. Sewell's deposition was taken. 15· · · · · · · · ··THE COURT:··And that was it? 16· · · · · · · · ··MR. McCAMPBELL:··I believe so. 17· · · · · · · · ··THE COURT:··Okay.··All right. 18· · · · · · · · ··MR. McCAMPBELL:··The fact that a 19· ·deposition was taken, and at the time it was taken 20· ·Mr. Northcutt had filed a response to their 21· ·application for probation and basically denied the 22· ·elements of undue influence and testamentary 23· ·capacity -- so at the time that Mr. Cable took my 24· ·client's deposition, they were well aware of 25· ·Mr. Sewell's position in the case, and so his

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·1· ·position was totally contrary to the effect of ·2· ·unanswered admissions. ·3· · · · · · · · · · · ·And the cases seem to -- that's ·4· ·important because the cases seem to talk about that. ·5· ·In cases where there had been discovery done, it ·6· ·showed that the position was certainly in ·7· ·contradiction to not answering the admissions.··And ·8· ·particularly Wal-Mart Stores v. Deggs would point ·9· ·that out. 10· · · · · · · · · · · ·We believe that the deposition 11· ·and the pleadings clearly put the other side on 12· ·notice as to Mr. Sewell's position -- true position 13· ·in the case.··The other thing that's interesting to 14· ·us is that Mr. Cable's clients did not pursue at that 15· ·time any kind of motion for summary judgment or 16· ·anything based on the deemed admissions. 17· · · · · · · · · · · ·But basically four and a half 18· ·years have gone by, and, again, I'm not -- I'm not 19· ·criticizing Mr. Cable or anybody, but the fact is 20· ·that four and half years have gone by, Mr. Sewell has 21· ·paid and gone through two more attorneys, me being 22· ·the third one, preparing for trial and all of that 23· ·to -- to be hit with a certificate of deemed 24· ·admissions on the morning of the trial. 25· · · · · · · · · · · ·I'm certainly not telling

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·1· ·Mr. Cable how to run his case, but the fact is, there ·2· ·was nothing done based on those admissions for a ·3· ·long, long time.··The only reasonable conclusion I ·4· ·can come up with in Mr. Cable filing the certificate ·5· ·of deemed admissions on the morning of trial was to ·6· ·basically lay behind the law to where Mr. Sewell's ·7· ·case would not be able to be put on at the time of ·8· ·trial. ·9· · · · · · · · · · · ·And that doesn't mean the 10· ·Court -- if he had brought it up that next month 11· ·after it happened, that doesn't mean the Court would 12· ·have overturned it, but the fact is, it wasn't 13· ·brought to anyone's attention until the trial. 14· · · · · · · · · · · ·Because Mr. Sewell had a position 15· ·that's contrary to the tenor of the request for 16· ·admissions, I don't think it can be shown that it was 17· ·intentional or a result of callous disregard on the 18· ·part of Mr. Sewell because I think if he had known 19· ·the effect, he would have, No. 1, answered the 20· ·responses; he would have gone to an attorney and 21· ·said, hey, help me with this, something. 22· · · · · · · · · · · ·Again, I'm not condoning he 23· ·didn't answer.··I'm just saying that I don't believe 24· ·that would be the act of -- an intentional act or 25· ·callous disregard for somebody who was fighting to

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·1· ·try to show a will was proper. ·2· · · · · · · · ··THE COURT:··Did he -- well, you talked ·3· ·to your client.··But this -- this conscious ·4· ·indifference to what is going on here, I know that ·5· ·there -- I've looked at the -- both of your motions ·6· ·and your responses, and there is a copy of a letter ·7· ·sent by Mr. Cable.··And in that letter, it ·8· ·references, if you don't sign -- if you don't say yes ·9· ·or no to one of these, it's going to be deemed 10· ·admitted as true. 11· · · · · · · · · · · ·And that bothers me a great deal. 12· ·I mean, did he not even read what was sent to him? 13· · · · · · · · ··MR. McCAMPBELL:··Are you talking about 14· ·the first page of the request for admissions? 15· · · · · · · · ··THE COURT:··It's a letter Cable had 16· ·prior to the deemed admissions request.··It said, 17· ·specifically, a failure -- last sentence -- a failure 18· ·to specifically answer any request or an evasive 19· ·answer to any request will be taken as an admission 20· ·of true of such request.··Respectfully submitted, 21· ·Chad Cable. 22· · · · · · · · ··MR. McCAMPBELL:··I've not -- I've not 23· ·seen that letter.··The only letter that I've seen is 24· ·the May 13, 2010, letter where Mr. Cable sends to 25· ·Mr. Sewell --

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·1· · · · · · · · ··THE COURT:··It's in your motion. ·2· · · · · · · · ··MR. McCAMPBELL:··It's in my motion? ·3· · · · · · · · ··THE COURT:··And the reason I'm saying ·4· ·that is -- that why I'm looking right now -- ·5· ·contestants' first request for admissions, Carlton ·6· ·Sewell, (indiscernible), and then it goes -- ·7· · · · · · · · ··MR. McCAMPBELL:··Oh, oh, oh.··Yes. ·8· ·I'm sorry, Judge.··I was looking for a letter.··But ·9· ·this is actually the first page of the request for 10· ·admissions. 11· · · · · · · · ··THE COURT:··This is the letter -- 12· · · · · · · · ··MR. McCAMPBELL:··Yes.··I'm not -- I'm 13· ·not disputing that.··I guess all I'm doing is saying 14· ·that, based on what Mr. Sewell has told me, while it 15· ·looks like that's his signature on the green card -- 16· ·he's not disputing that -- he does not recall the 17· ·document.··So that's all I can -- that's all I can 18· ·say to that. 19· · · · · · · · ··THE COURT:··All right. 20· · · · · · · · ··MR. McCAMPBELL:··The -- give me just a 21· ·second, Judge.··I kind of lost my -- 22· · · · · · · · · · · ·I now move over to the undue 23· ·prejudice element.··And it appears Mr. Cable may be 24· ·asserting that if I had known that the admissions 25· ·would not be deemed, then I would have engaged in

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·1· ·additional discovery. ·2· · · · · · · · · · · ·The fact is, No. 1, that there ·3· ·was additional discovery done after that date in the ·4· ·way of additional depositions, request for ·5· ·disclosure, interrogatories, request for production ·6· ·on behalf of his clients.··Let's just say, though, ·7· ·that he would have taken two more depositions had he ·8· ·known, but the case law basically says it depends on ·9· ·what kind of time you have to do that. 10· · · · · · · · · · · ·Well, he had -- he's had four and 11· ·a half years to do that, and they say it's not enough 12· ·to rely just on the request for admission; that 13· ·prejudice can't be shown.··Prejudice does not include 14· ·having to convince the trier of fact of the truth of 15· ·the admissions.··So -- 16· · · · · · · · ··THE COURT:··How much discovery did you 17· ·say that Mr. Cable presented to your client after the 18· ·deemed admissions? 19· · · · · · · · ··MR. McCAMPBELL:··What my file reflects 20· ·is that there was -- there was some other depositions 21· ·taken. 22· · · · · · · · ··THE COURT:··Okay. 23· · · · · · · · ··MR. McCAMPBELL:··There was a request 24· ·for disclosure, interrogatories, and request for 25· ·production.

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·1· · · · · · · · ··THE COURT:··And this all came from ·2· ·Mr. Cable's office? ·3· · · · · · · · ··MR. McCAMPBELL:··Yes.··To Mr. Bauer. ·4· · · · · · · · ··MR. CABLE:··Hold on.··I just want to ·5· ·strongly object to that.··I'll get to it later.··That ·6· ·is not what happened -- ·7· · · · · · · · ··THE COURT:··Okay. ·8· · · · · · · · ··MR. CABLE:··-- as I point out in my ·9· ·motion. 10· · · · · · · · ··THE COURT:··I'm asking him so I can 11· ·get an understanding. 12· · · · · · · · ··MR. McCAMPBELL:··And so for there 13· ·being this here amount of time, four and a half 14· ·years, there certainly was the opportunity to -- to 15· ·fully engage in additional discovery if, in fact, the 16· ·Court finds or some other Court finds that the 17· ·discovery period didn't end at nine months. 18· · · · · · · · · · · ·This case, even after I got 19· ·involved, was on a trial docket two or three times. 20· ·While there might not have been a formal motion for 21· ·continuance, I don't think there was a situation 22· ·where -- where there was any deference on anybody's 23· ·part about it -- at some point about it being 24· ·continued until its set trial date in January. 25· · · · · · · · ··THE COURT:··It did fall through the

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·1· ·cracks, and we are all at fault. ·2· · · · · · · · ··MR. McCAMPBELL:··Again, I'm not ·3· ·criticizing anyone.··The fact is, it -- it finally ·4· ·was set for trial well after the case commenced. ·5· · · · · · · · · · · ·I understand that Mr. Cable -- ·6· ·and I think he handed me -- I'm not sure he handed it ·7· ·to me, but he showed me a minute ago that he's filed ·8· ·a motion for summary judgment in the case.··If the ·9· ·Court -- and I think the summary judgment is in large 10· ·part based on the deemed admissions. 11· · · · · · · · ··MR. CABLE:··Absolutely.··It wouldn't 12· ·be relevant -- 13· · · · · · · · ··MR. McCAMPBELL:··And so I guess it 14· ·depends on the Court's ruling, obviously.··Looking 15· ·down the road, Judge, if the Court denies my motion 16· ·to withdraw the admissions, it appears to me that 17· ·the -- the remedy -- potential remedy would be an 18· ·application for writ of mandamus. 19· · · · · · · · ··THE COURT:··Okay. 20· · · · · · · · ··MR. McCAMPBELL:··Because what the case 21· ·law says -- and I've got a Tyler court (sic) that 22· ·appears to be on point -- that because of the 23· ·severity of the penalty of allowing the admissions to 24· ·stand and the fact that it pretty well does away with 25· ·Mr. Sewell's case, there -- it's almost a moot point

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·1· ·to go through a trial; that there -- there needs to ·2· ·be some resolution on the deemed admissions before it ·3· ·got to a trial setting. ·4· · · · · · · · ··THE COURT:··All right.··I understand. ·5· · · · · · · · ··MR. CABLE:··Is that a sanctions or ·6· ·deemed admissions case? ·7· · · · · · · · ··MR. McCAMPBELL:··It -- but it -- ·8· · · · · · · · ··MR. CABLE:··I understand. ·9· · · · · · · · ··MR. McCAMPBELL:··It basically is a 10· ·sanctions in the arena of discovery. 11· · · · · · · · ··MR. CABLE:··I would -- I would just 12· ·briefly point out that there's a difference between a 13· ·sanction and a result.··He's not being penalized 14· ·for -- it's not like a sanction for -- there's a 15· ·distinction there. 16· · · · · · · · ··THE COURT:··Absolutely. 17· · · · · · · · ··MR. McCAMPBELL:··So what the case law 18· ·does say -- and I believe -- did I not submit copies 19· ·of cases to you? 20· · · · · · · · ··THE COURT:··Yeah. 21· · · · · · · · ··MR. McCAMPBELL:··Okay.··Okay.··It's 22· ·been a while, so -- 23· · · · · · · · ··THE COURT:··I don't know who sent me 24· ·this or if I did it myself, Supreme Court Marino 25· ·versus King, 2011.··A very good case.

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·1· · · · · · · · ··MR. McCAMPBELL:··Okay. ·2· · · · · · · · ··THE COURT:··And I have been reading ·3· ·it. ·4· · · · · · · · ··MR. McCAMPBELL:··Okay.··I don't think ·5· ·that came from me. ·6· · · · · · · · · · · ·But if deemed admissions ·7· ·basically preclude presentation of the merits of the ·8· ·case, then there -- due process concerns could arise. ·9· ·In other words, instead of -- if the admission was, 10· ·the car was white -- well, the car wasn't the issue 11· ·about the case.··It wasn't the primary issue.··It was 12· ·just a fact -- a fact of the case.··And the client 13· ·did not answer it but -- because the car was really 14· ·white and didn't answer it, you can't bring anything 15· ·in contradiction to the fact that it was white.··You 16· ·can't say it was black. 17· · · · · · · · · · · ·That's okay.··I mean, that's a 18· ·fact in a case, but if it's -- if it's stated in such 19· ·terms as to totally gut the case, then the Courts 20· ·lean toward allowing everybody to present it as a 21· ·trial on the merits, and both -- the couple of cases 22· ·I've cited do that. 23· · · · · · · · · · · ·I did give you a case of Wheeler 24· ·v. Green. 25· · · · · · · · ··THE COURT:··Yes.··That was correct.

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·1· · · · · · · · ··MR. McCAMPBELL:··And it was a family ·2· ·law case, and it basically discusses the fact that ·3· ·somebody is representing themselves and -- ·4· · · · · · · · ··THE COURT:··In that one, she did -- ·5· ·she may have been late responding, but she did ·6· ·respond. ·7· · · · · · · · ··MR. McCAMPBELL:··And I don't dispute ·8· ·that.··I don't dispute that. ·9· · · · · · · · · · · ·To conclude, Judge, I would -- I 10· ·would think that -- that based on the total factual 11· ·circumstance of this very long case, procedural case, 12· ·that there is good cause for allowing the -- the 13· ·admissions to be withdrawn and to allow the parties 14· ·to tee it up in court in front of the trier of fact 15· ·to present -- particularly looking at the fact that 16· ·obviously Mr. Sewell's position is contrary to what 17· ·the deemed admissions do and that because it -- the 18· ·case has been so long and because there's been 19· ·adequate opportunity for discovery on the part of 20· ·everybody, that there's no undue prejudice that's 21· ·going to result if the Court allows the withdrawal 22· ·and resets the trial of the case. 23· · · · · · · · ··THE COURT:··Okay.··Very good. 24· · · · · · · · · · · ·Mr. Cable. 25· · · · · · · · ··MR. CABLE:··Thank you, Your Honor and

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·1· ·Mr. McCampbell. ·2· · · · · · · · · · · ·Let me just address some -- some ·3· ·factual issues, and then I've just got a brief ·4· ·argument.··This notion -- Mr. McCampbell's motion to ·5· ·withdraw deemed admissions has two prongs.··One is -- ·6· ·and it seems to be the easiest one to dispose of, is ·7· ·this idea that the discovery period had closed under ·8· ·the Rules. ·9· · · · · · · · · · · ·There are cases that happen -- 10· ·that go on every day where discovery runs past the 11· ·Rules.··In fact, the rule that trumps that is the one 12· ·that you can't do any discovery 30 days prior to 13· ·trial and that sort of thing.··Most scheduling orders 14· ·work backwards from trial date.··Even without a 15· ·scheduling order, if you keep reading the Rules of 16· ·Civil Procedure, they work backwards in terms of time 17· ·limits from the trial setting. 18· · · · · · · · · · · ·So this idea that some kind of 19· ·steel curtain has dropped by that rule nine months 20· ·after the case is filed, it is -- is specious at best 21· ·and doesn't apply here because -- and it's clever 22· ·drafting.··Mr. McCampbell is a good lawyer.··He's 23· ·done a good job drawing this.··He's right on track 24· ·all the way down Page 1 under the factual recitations 25· ·with explicit dates.

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·1· · · · · · · · · · · ·And then on Page 2 at No. 9, it ·2· ·says, on June 17, Carlton Sewell retained Bauer. ·3· ·That's following No. 8, where on January 28 of '09 -- ·4· ·so 18 months later while I try to deal with ·5· ·Mr. Sewell, he goes and hires another lawyer.··But ·6· ·what does he do in the meantime?··That's where the ·7· ·drafting gets clever. ·8· · · · · · · · · · · ·Paragraph 10 says, in the ·9· ·interim, between -- it doesn't say the 10· ·18-month interim.··It just says the interim between 11· ·the withdrawal of Eddie Northcutt and the engagement 12· ·of Frank Bauer, it appears that on May 13, Mr. Cable 13· ·served request for admissions, who was at the time 14· ·acting pro se.··Not only at the time but for some 15· ·many, many months, 18 months before. 16· · · · · · · · · · · ·And then 11 he didn't respond. 17· ·And No. 12 -- this is the part I had to smile at -- 18· ·the parties thereafter continued to engage in various 19· ·forms of discovery.··Well, when I get an 20· ·interrogatory or request for admissions served on me, 21· ·I don't consider that I'm engaging.··I am responding 22· ·to discovery that is propounded offensively by the 23· ·other party. 24· · · · · · · · · · · ·Mr. Sewell, acting pro se, 25· ·summarily drafted request for admissions and

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·1· ·interrogatories, served me a full set on June 7 of ·2· ·2010 while he was pro se. ·3· · · · · · · · ··MR. McCAMPBELL:··And I'm sorry.··Did ·4· ·you say he served you with admissions? ·5· · · · · · · · ··MR. CABLE:··No.··If I did, I misspoke. ·6· · · · · · · · · · · ·I pick up with the admissions ·7· ·served on him on May 13, 2010.··I might add that the ·8· ·Court's file will reflect that that week prior to ·9· ·May 13 -- because I well remember calling my 10· ·secretary and telling her to get that together. 11· ·That -- sometime in the 10 days before May 13, I went 12· ·to Vernon, Texas, and deposed two essential fact 13· ·witnesses and was very careful to cover him up with 14· ·notice because I didn't want to have to take them 15· ·again. 16· · · · · · · · · · · ·This is expensive business.··This 17· ·isn't fun and games out there in the real world 18· ·arguing over hundreds of thousands of dollars of an 19· ·estate.··This is real money and real time and court 20· ·reporter time and gasoline and motels.··And I didn't 21· ·want to go out there in early May and depose those 22· ·farmers that gave testimony very unfavorable -- 23· · · · · · · · ··THE COURT:··Were you not relying on 24· ·your deemed admissions at that time? 25· · · · · · · · ··MR. CABLE:··No, ma'am.··I went out

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·1· ·there and took those depositions earlier.··But the ·2· ·point is that I covered him up with notices because I ·3· ·didn't want to run the risk of an objection later ·4· ·that, oh, I didn't get to attend those depositions ·5· ·because I was pro se and I didn't know any better. ·6· · · · · · · · · · · ·So not only did he get admissions ·7· ·served on him, and the other documents, about a week ·8· ·or 10 days before that, he got covered up with ·9· ·deposition notices that he didn't bother to attend. 10· ·My point is, he's playing lawyer during this time, 11· ·and he sends me a well-drafted set of 12· ·interrogatories. 13· · · · · · · · · · · ·Now, we don't -- you were 14· ·questioning a moment ago about his state of mind and 15· ·what he knew and what he didn't know.··Unfortunately, 16· ·we don't have the luxury of taking depositions in 17· ·this type of matter and learning what he was thinking 18· ·and what I was thinking.··You have to go only by the 19· ·record.··The record is, is that Mr. Sewell somehow 20· ·figured out to send me interrogatories and a request 21· ·for production on June 7. 22· · · · · · · · · · · ·Now, a year rolls around -- a 23· ·year rolls around, and Bauer wants to take Truitt and 24· ·Laura Sewell's deposition.··Again, offensive 25· ·discovery.··Wasn't my idea.··He noticed them up.··I

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·1· ·had to present them.··The idea that the parties ·2· ·engaged in further discovery is a little bit ·3· ·specious. ·4· · · · · · · · ··THE COURT:··Question.··I have that ·5· ·Bauer got in it in April 2013, but he got in in ·6· ·August of 2011? ·7· · · · · · · · ··MR. CABLE:··He got in in 2010. ·8· · · · · · · · ··THE COURT:··Excuse me. ·9· · · · · · · · ··MR. McCAMPBELL:··He got out -- 10· · · · · · · · ··THE COURT:··He got out in 2013. 11· ·You're right.··You're right.··Go ahead. 12· · · · · · · · ··MR. CABLE:··Now, his argument that I 13· ·didn't engage in any offensive discovery after the 14· ·admissions were overdue is not exactly pure because 15· ·in the run-up to trial in 2012, I got to looking, and 16· ·I didn't have anything in my file -- I never sent 17· ·anything to ascertain who their witnesses were and 18· ·time had gone by, so I sent a request for disclosure, 19· ·the routine request for disclosure to Bauer. 20· · · · · · · · · · · ·So I did do that.··But I didn't 21· ·engage in a bunch of discovery.··Now, this idea that 22· ·discovery had closed just is nonsense because by the 23· ·conduct of the parties, clearly discovery hadn't 24· ·closed.··We were -- Bauer and I weren't -- I wasn't 25· ·objecting to his discovery saying, oh, you waited too

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·1· ·long, nor was he mine. ·2· · · · · · · · · · · ·And, by the way, the remedy -- ·3· ·the legal remedy under the Rules for an objection to ·4· ·discovery being out of time, so you don't answer at ·5· ·your peril, what you have to do is file a motion to ·6· ·compel or the other side has to -- the party who is ·7· ·getting the discovery and they believe it's untimely ·8· ·at that point, that party has to file a motion -- ·9· ·protective -- a motion for protective order from the 10· ·discovery. 11· · · · · · · · · · · ·So the entire part of 12· ·Mr. Sewell's motion that discovery had closed, I 13· ·think, is -- is specious at best. 14· · · · · · · · · · · ·Now, that leads us to good cause. 15· ·He laid behind the law, didn't do this, didn't do 16· ·that.··These cases are pretty clear that deemed 17· ·admissions are conclusive and that I'm not under any 18· ·duty to point out the fact that they've not answered 19· ·them any more than I would be under a duty to point 20· ·out a basic defect in pleadings such as 21· ·jurisdictional or otherwise. 22· · · · · · · · ··THE COURT:··All right.··Mr. Cable, I 23· ·have a question about deemed admissions.··They are a 24· ·tool, correct? 25· · · · · · · · ··MR. CABLE:··They are.

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·1· · · · · · · · ··THE COURT:··They are a tool for ·2· ·discovery, right? ·3· · · · · · · · ··MR. CABLE:··They can be.··But in this ·4· ·court, on a routine basis, when these credit card ·5· ·companies come roaring in and they file -- they've ·6· ·sent the admissions on the back of their petition and ·7· ·the defendant shows up pro se, they're just out of ·8· ·luck.··This goes to my -- the argument about good ·9· ·cause, Judge. 10· · · · · · · · · · · ·He wants to contend that he ought 11· ·to get the kid gloves helping hand of the Court 12· ·because he's a pro se litigant similar to the way 13· ·that you and a lot of other judges treat -- even I 14· ·have -- pro se divorce litigants and people that are 15· ·up here just trying to get through the territory that 16· ·don't have any money and they're having trouble, you 17· ·know -- for whatever reason, they're having trouble 18· ·negotiating the situation. 19· · · · · · · · · · · ·In this case, you're talking 20· ·about a guy who fired a crackerjack litigator, went 21· ·18 months without a lawyer, during which time he 22· ·served sophisticated discovery on me.··And the usual 23· ·boilerplate language on the interrogatories and 24· ·request for production that came from Mr. Sewell 25· ·pro se had all the magic language in it that you've

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·1· ·got to answer these; if they're not answered in 30 ·2· ·days, da, da, da, da, da. ·3· · · · · · · · · · · ·If the Rules are going to apply ·4· ·to everybody, they've got to apply to everybody.··And ·5· ·to run in and say, oh, golly, I didn't understand it, ·6· ·that's fine if your hands are clean.··His hands are ·7· ·not clean.··He's on his third lawyer.··And for an ·8· ·18-month period in the middle of the case, he played ·9· ·lawyer and actually propounded offensive discovery, 10· ·which I can just imagine how he'd be squealing had I 11· ·messed that up -- messed up the answers to it. 12· · · · · · · · · · · ·There is no good cause according 13· ·to the cases that I've cited.··There is a case that's 14· ·dead on about a pro se litigant that's in my -- cited 15· ·in my response.··It's -- it's not good cause.··And 16· ·then the issue of reliance on the admissions goes 17· ·back to the -- you know, we've laughed for years up 18· ·here about the classic Carl Bryan objection.··When he 19· ·couldn't think of a legal objection, he would always 20· ·resort to, Judge, it just ain't fair.··Judge Thompson 21· ·used to laugh about it; here goes Carl with his 22· ·t'aint fair objection. 23· · · · · · · · · · · ·And really that's what this 24· ·situation boils down to.··I laid behind the law.··I 25· ·took advantage of this poor pro se litigant, when, in

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·1· ·fact, he's not that at all, as demonstrated by his ·2· ·own conduct over these years.··The reliance on the ·3· ·admissions is -- is -- the Timmers Chevrolet case is ·4· ·the case and these other cases taken with Judge ·5· ·Doggett's Supreme Court opinion in Marshall v. Vise, ·6· ·those are the cases that talk about the -- the use of ·7· ·admissions. ·8· · · · · · · · ··THE COURT:··(Indiscernible.) ·9· · · · · · · · ··MR. CABLE:··I don't have a duty to run 10· ·and tell him he messed up.··In fact, it would 11· ·probably be my practice to do that because what 12· ·happened, as Judge Doggett pointed out in Marshall, 13· ·the lawyer, bless his heart -- I do -- I felt sorry 14· ·for him when I read this case because I almost did it 15· ·the other morning in front of a jury. 16· · · · · · · · · · · ·The lawyer attempted to put the 17· ·target on the stand and elicit inconsistent testimony 18· ·from him and then jump up with the admissions and go, 19· ·aha, and the trial court -- and, of course, he gets 20· ·up to the Supreme Court and Doggett maps out -- 21· ·Justice Doggett, now Congressman Doggett, maps out 22· ·how he did it wrong.··He should have laid behind the 23· ·law because when he elicited inconsistent testimony 24· ·in the trial, then he waived, according to Doggett -- 25· ·he waived the effect of admissions.

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·1· · · · · · · · · · · ·He's basically telling everybody ·2· ·in Texas that if you're going to -- you better not ·3· ·take action inconsistent with the admissions you've ·4· ·already got or it can lose the effect of them.··And ·5· ·so the Red Ball Motor Freight versus Badine ·6· ·(phonetic) case tracks that.··You file the ·7· ·admissions, and they become part of the evidence in ·8· ·the case.··And that's what I did that morning when I ·9· ·was very tempted to make the same blunder that the 10· ·Marshall lawyer made in the Doggett case, not having 11· ·had the opportunity in 35 years to try to hold 12· ·admissions (indiscernible). 13· · · · · · · · · · · ·The reliance on the admissions -- 14· ·back to Timmers -- and this goes to the argument of 15· ·what you have all this time to take this other 16· ·discovery.··The 14th Court -- I'm sorry -- the 1st 17· ·District Houston Court makes it abundantly clear that 18· ·once the blunder was made, the other side can rely 19· ·upon them because they're deemed admitted 20· ·automatically.··That's the key.··They're not deemed 21· ·admitted after a motion to deem.··They're deemed 22· ·admitted the day they're not answered timely.··And 23· ·then the lawyer can rely upon that. 24· · · · · · · · · · · ·The -- the depositions and 25· ·additional discovery that -- that are in my motion

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·1· ·are matters that are crucial to this case but they ·2· ·were going to cost money.··They were going to cost a ·3· ·lot of money.··And -- and I didn't feel I needed ·4· ·them.··I relied upon the deemed admissions.··The -- ·5· · · · · · · · ··THE COURT:··All right. ·6· · · · · · · · ··MR. CABLE:··The -- the -- in closing, ·7· ·if I was up here taking advantage of some poor little ·8· ·girl in a divorce, it would be one thing.··But he had ·9· ·and parted company with Eddie Northcutt, played 10· ·lawyer for 18 months, went and hired Frank.··I sat 11· ·around forever thinking, well, Bauer is going to 12· ·figure this out, but he never did.··And then poor 13· ·Mr. McCampbell never even had a chance to figure it 14· ·out. 15· · · · · · · · · · · ·And so there's nothing in this 16· ·situation that casts any shadow on those lawyers' 17· ·either competence or -- you see, it never rises to an 18· ·issue of conscious indifference when -- when there's 19· ·no evidence presented that, oh, well, I -- you know, 20· ·you've seen the cases about, you know, it was 21· ·miscalendared, it got misfiled, it got -- the best 22· ·that Mr. Sewell could come up with is, I don't recall 23· ·it, but, yeah, that sure looks like my signature on 24· ·that green card. 25· · · · · · · · · · · ·And then inexplicably, seven days

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·1· ·later, he figures out how -- I'm sorry.··About two ·2· ·weeks later -- two to three weeks later, he figures ·3· ·out how to hit me -- you know, return the fire with ·4· ·interrogatories and request for production that I ·5· ·strongly suspect he had some assistance in preparing ·6· ·because those are the kinds of documents that are ·7· ·hard to -- to prepare without any legal training and ·8· ·serve them on me proper. ·9· · · · · · · · · · · ·The -- the bottom line is this. 10· ·Because this is an important case and a serious case 11· ·and a case involving a great deal of money, Texarkana 12· ·is going to get to rule one way or the other. 13· · · · · · · · ··THE COURT:··That's right. 14· · · · · · · · ··MR. CABLE:··It's -- because it's not 15· ·interlocutory, I suppose the Court has -- you know, I 16· ·just thought of a third option and that -- and I've 17· ·seen judges do this, come to think of it, and that's 18· ·just carry it along and not rule -- I've seen judges 19· ·do that -- and let's go ahead and see what the jury 20· ·says, or let them -- let them out of the trap that 21· ·they -- that he created for himself and go try the 22· ·case or run it up and see what they say, because if 23· ·they agree with me over in Texarkana -- and in this 24· ·hypothetical scenario, they would be agreeing with 25· ·the trial court -- that under these facts and

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·1· ·circumstances deemed admissions have to mean ·2· ·something at some point -- the rule has to mean ·3· ·something.··These cases have to mean something at ·4· ·some point.··If Texarkana agrees with that, Their ·5· ·Honors over there, then this matter is over. ·6· · · · · · · · · · · ·Otherwise, on other -- the other ·7· ·two options, we spend an awful lot of time and effort ·8· ·and money, both sides, trying the case and then send ·9· ·it up and see what they think on what is a break-neck 10· ·issue. 11· · · · · · · · · · · ·Brad pointed out -- 12· ·Mr. McCampbell pointed out to me that he thinks the 13· ·proper remedy, if the Court were to rule for me 14· ·today, would be -- for him, would be an application 15· ·for mandamus based on that Tyler court.··That case is 16· ·about sanctions and not admissions.··How it gets 17· ·there is irrelevant to me. 18· · · · · · · · · · · ·I went ahead and -- because I 19· ·hired some boys that knew what they were doing to 20· ·help me draft this motion, I went ahead and had them 21· ·draw a summary judgment motion for me, which I filed 22· ·prematurely.··I really wish now I had not filed it 23· ·because if the Court lets him back in the game, it's 24· ·a moot point. 25· · · · · · · · · · · ·I filed it -- or I had it

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·1· ·prepared and sort of jumped the gun on filing it ·2· ·because I think that that is a proper procedural way ·3· ·to end the case and, ergo, bring the case to a ·4· ·conclusion to where it can go to Texarkana.··If ·5· ·mandamus is more appropriate, that is something that ·6· ·I have not considered until this morning.··I don't ·7· ·think it makes a lot of difference. ·8· · · · · · · · · · · ·What I do know is, they're going ·9· ·to answer this question for one of us no matter what 10· ·you do, with all due respect, and so why waste a 11· ·trial in the meantime?··Thank you, Your Honor. 12· · · · · · · · ··MR. McCAMPBELL:··Judge, I don't really 13· ·have much of a response.··I mean, I think you've 14· ·heard it every which way but loose.··I would just say 15· ·that there is a difference between discovery, 16· ·interrogatories, request for production, and requests 17· ·for admission just because of the legal effect, and 18· ·that's what -- that's where I would end my argument 19· ·on this issue; the type of discovery that was 20· ·submitted, when it was submitted, and what has 21· ·transpired and not transpired since then. 22· · · · · · · · · · · ·As far as the -- I'll be happy to 23· ·give the Court a copy -- Chad, too -- this Tyler 24· ·court.··It was over admissions and -- 25· · · · · · · · ··MR. CABLE:··Admissions or sanctions?

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·1· · · · · · · · ··MR. McCAMPBELL:··Admissions. ·2· · · · · · · · · · · ·And basically the way they've ·3· ·termed it was a discovery error on the part of the ·4· ·Court.··So -- and I'm getting caught up in the ·5· ·semantics of the terms, but anyway, it was over ·6· ·admissions, and it was -- it was based on a mandamus, ·7· ·and that's where I'm coming up with that possible ·8· ·alternative. ·9· · · · · · · · · · · ·That's all I have, Judge. 10· · · · · · · · ··THE COURT:··All right. 11· · · · · · · · ··MR. CABLE:··Just this final -- all the 12· ·cases that I've read up to this one gets you to the 13· ·next level on a more formal appeal versus mandamus. 14· ·It even says here, mandamus is only appropriate for 15· ·gross abuse of discretion, not a judgment call.··But 16· ·we will jump that creek. 17· · · · · · · · ··THE COURT:··What I'm going to do is 18· ·this.··I'm going to (indiscernible) that both sides 19· ·not -- what I'm going to say is, there -- there is a 20· ·case, and I wish you both would read, oh -- Moreno -- 21· ·what was it -- something Marino v. King. 22· · · · · · · · ··MR. CABLE:··It's cited in my response, 23· ·Judge.··I knew I had seen it somewhere. 24· · · · · · · · ··THE COURT:··355 S.W.3d 629 dated 25· ·October 21, 2011.··It's a good case.··It gives some

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·1· ·direction here and -- ·2· · · · · · · · ··MR. McCAMPBELL:··It is -- it's Texas ·3· ·Supreme Court? ·4· · · · · · · · ··THE COURT:··I'm sorry? ·5· · · · · · · · ··MR. McCAMPBELL:··Texas Supreme Court? ·6· · · · · · · · ··THE COURT:··Yeah. ·7· · · · · · · · ··MR. McCAMPBELL:··Okay. ·8· · · · · · · · ··THE COURT:··Supreme Court of Texas. ·9· · · · · · · · ··MR. CABLE:··I think it came out of 10· ·Fort Worth, didn't it? 11· · · · · · · · ··THE COURT:··Cause no undue influence 12· ·to the other side.··There are some very good catch 13· ·phrases in here that allow me to decide one way or 14· ·the other whether to allow these admissions. 15· · · · · · · · · · · ·Now, I am going to write you a 16· ·letter.··I do have an understanding of where I 17· ·believe I'm going to go at this time with this 18· ·particular issue, but I want to put it in a letter 19· ·form.··You two have helped me immensely.··I 20· ·appreciate it. 21· · · · · · · · · · · ·And it's an issue that absolutely 22· ·I assume the Court of Appeals -- the gentlemen up 23· ·there will probably hear this one way or another, and 24· ·I know they'll give us -- anybody don't get it right, 25· ·they'll give us the correct response.··So with that

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·1· ·in mind, thank you for your time. ·2· · · · · · · · ··MR. McCAMPBELL:··Thank you, Judge. ·3· · · · · · · · ··(Hearing adjourned.) ·4· · ·5· · ·6· · ·7· · ·8· · ·9· · 10· · 11· · 12· · 13· · 14· · 15· · 16· · 17· · 18· · 19· · 20· · 21· · 22· · 23· · 24· · 25· ·

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·1· ·STATE OF TEXAS··) · ·· ·2· ·COUNTY OF DELTA ) · ·· ·3· · · ··I, Jana Atchison Rushing, Official Court · · ·4· ·Reporter in and for the State of Texas, do hereby · ·· ·5· ·certify that the above and foregoing contains a true · ·· ·6· ·and correct transcription of all portions of evidence · ·· ·7· ·and other proceedings requested in writing by counsel · ·· ·8· ·for the parties to be included in this volume of the · ·· ·9· ·Reporter's Record, in the above-styled and numbered · ·· 10· ·cause, all of which occurred in open court or in · ·· 11· ·chambers and were recorded electronically by BIS and · ·· 12· ·transcribed by me. · ·· 13· · · ··I further certify that this Reporter's Record of · ·· 14· ·the proceedings truly and correctly reflects the · ·· 15· ·exhibits, if any, admitted by the respective parties. · ·· 16· · · ··I further certify that the total cost for the · ·· 17· ·preparation of this reporter's Record is $285.00 and · ·· 18· ·will be paid by Mr. J. Brad McCampbell, Counsel for · ·· 19· ·Proponent. · ·· 20· · · ··WITNESS MY OFFICIAL HAND this the 26th day of · ·· 21· ·May, 2015. · ·· 22· · · · · · · · · · · ·/s/ Jana Atchison Rushing 23· · · · · · · · · ·JANA ATCHISON RUSHING, Texas CSR 4156 · ·· · · · · · · · ·Expiration Date:··12/31/15 24· · · · · · · · · ·P. O. Box 48 · ·· · · · · · · · ·Cooper, Texas··75432 25· · · · · · · · · ·903-268-2942

Jana Atchison Rushing, CSR 903-268-2942