ACCEPTED 03-17-00735-CV 21672076 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/8/2018 1:27 PM JEFFREY D. KYLE CLERK NO. 03-17-00735-CV __________________________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS 1/8/2018 1:27:44 PM __________________________________________________________________ JEFFREY D. KYLE Clerk
IN RE CATHERINE TOWER LLC Relator __________________________________________________________________
On Petition for Writ of Mandamus from the 261st District Court of Travis County, Texas, Cause No. D-1-GN-16-002929, The Hon. Amy Clark Meachum, Judge Presiding __________________________________________________________________
REAL PARTY IN INTEREST TRAVIS CENTRAL APPRAISAL DISTRICT’S SUR-REPLY
Tammy White-Chaffer OLSON & OLSON, L.L.P. State Bar No. 24008273 Wortham Tower, Suite 600 serv.tchaffer@olsonllp.com 2727 Allen Parkway Eric Farrar Houston, Texas 77019 State Bar No. 24036549 Telephone:(713) 533-3800 efarrar@olsonllp.com Facsimile:(713) 533-3888 Jenny M. Rogers State Bar No. 24060155 ATTORNEYS FOR REAL jrogers@olsonllp.com PARTY IN INTEREST TABLE OF CONTENTS
TABLE OF CONTENTS ...........................................................................ii
INDEX OF AUTHORITIES .................................................................... iii
APPENDIX ............................................................................................... iv
SUR-REPLY .............................................................................................. 1
PRAYER .................................................................................................... 4
CERTIFICATE OF COMPLIANCE.......................................................... 6
CERTIFICATE OF SERVICE................................................................... 6
ii INDEX OF AUTHORITIES
CASES
In re ExxonMobil Corp., 97 S.W.3d 353 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) ........................................................................... 4
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ......................................... 4
STATUTES, RULES AND OTHER AUTHORITIES
Tex. R. Civ. P. 193.3 .............................................................................. 1, 3
Tex. R. Civ. P. 193.4 .............................................................................. 2, 3
iii APPENDIX
APPENDIX TAB
SECOND SUPPLEMENTAL RECORD .......................................................... K
iv TO THE HONORABLE THIRD COURT OF APPEALS:
Pursuant to this Court’s order granting leave to file a sur-reply,
Real Party in Interest Travis Central Appraisal District submits the
following:
SUR-REPLY
1. In its Reply, Relator for the first time asserts that “there is
no evidence that TCAD ever actually served Prudential with a
subpoena duces tecum.” Relator’s Reply at 12. However, the record
reveals at the oral hearing on its Motion to Quash held on August 3,
2017, Relator’s counsel acknowledged a subpoena had been issued.
Ms. Michel: They issued a subpoena to Prudential as well. And I spoke with Prudential’s counsel regarding these matters, and we had already filed the motion to quash and we were already in a position to defend it, and they felt that they would rest on our efforts. Tab 9 at 12, lines 6-11 (emphasis added).
A copy of the subpoena duces tecum, with a notarized officer’s
return, is attached hereto as a supplement to the Record at Tab 26.
2. In its Reply, Relator incorrectly asserts that TCAD did not
object in the trial court that its trade secret arguments and evidence
were untimely. In violation of Texas Rules of Civil Procedure 193.3 and
193.4, by Relator’s own admission, the first time Relator even attempted to assert confidentiality1 was in in its reply in support of its
motion to quash filed August 2, 2017—one day prior to the oral hearing
on said motion. Reply at 13. Relator did not attach to its reply an
affidavit or any other evidence in support of its contention that the
appraisal was confidential, nor did Relator assert that the appraisal
was a trade secret. 2 At the oral hearing on its motion to quash, Relator
presented testimony from Mr. Fredrick Butt regarding confidentiality.
Tab 9 at 33-34. Prior to Mr. Butt’s testimony, TCAD objected that the
witness had not been previously disclosed and that his testimony
constituted unfair surprise and prejudice. Tab 9 at 19, lines 6-7, 14-20.
Regardless of whether Relator meant for Mr. Butt’s testimony to
address confidentiality or to address the trade secret privilege, TCAD
objected at the time of the hearing that the testimony was unfair
surprise.
3. In attempting to assert CBRE’s trade secret privilege,
Relator continued in its tactic of unfair surprise. In violation of Texas
Rules of Civil Procedure 193.3 and 193.4, Relator again waited until
1 “Confidentiality” is not a privilege. Relator did not reference a trade secret privilege in its August 2, 2017 reply. Tab 21 (attached to Relator’s Reply). 2 This first time Relator specifically identifies a trade secret privilege is in its
Motion to Reconsider. Tab 17. 2 September 27, 2017—one day prior to the trial court’s submission date
on its motion to reconsider—to file its reply to TCAD’s response.
Attached to the reply, Relator for the first time presented the affidavit
testimony of Mr. David Thibodeaux who testified regarding CBRE’s
alleged trade secret. Tab 14 at 16. The following day, the trial court
issued its order. Tab 15. TCAD barely had 24-hours notice of the
affidavit, so there was no time for TCAD to complain that the
Thibodeaux affidavit was not timely.
4. Finally, there is no evidence in the record that Prudential
intends to assert any privilege whether on its own or by way of Relator.
As stated above, Relator’s counsel at the oral hearing on Relator’s
motion to quash stated that Prudential had elected not to participate in
the proceedings and would rely on Relator’s efforts in arguing Relator’s
motion to quash. Tab 9 at 12, lines 6-11. There was nothing for TCAD
to object to in this regard. The first time TCAD became aware that
CBRE would attempt to assert a privilege was one day before the
court’s submission date on Relator’s motion to reconsider. With less
than 24-hours notice, TCAD did not have sufficient time to object or to
respond to Relator’s untimely assertion of CBRE’s privilege. This Court
3 “must uphold the trial court’s order on any ground supported by the
mandamus record.” In re ExxonMobil Corp., 97 S.W.3d 353, 358 (Tex.
App.—Houston [14th Dist.] 2003, orig. proceeding). When factual
matters are within the trial court’s discretion, “the reviewing court may
not substitute its judgment for that of the trial court.” Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992). It was within the trial court’s
discretion to consider what, if any, weight to afford the affidavits
Relator presented in support of its assertion of privilege.
PRAYER
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ACCEPTED 03-17-00735-CV 21672076 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/8/2018 1:27 PM JEFFREY D. KYLE CLERK NO. 03-17-00735-CV __________________________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS 1/8/2018 1:27:44 PM __________________________________________________________________ JEFFREY D. KYLE Clerk
IN RE CATHERINE TOWER LLC Relator __________________________________________________________________
On Petition for Writ of Mandamus from the 261st District Court of Travis County, Texas, Cause No. D-1-GN-16-002929, The Hon. Amy Clark Meachum, Judge Presiding __________________________________________________________________
REAL PARTY IN INTEREST TRAVIS CENTRAL APPRAISAL DISTRICT’S SUR-REPLY
Tammy White-Chaffer OLSON & OLSON, L.L.P. State Bar No. 24008273 Wortham Tower, Suite 600 serv.tchaffer@olsonllp.com 2727 Allen Parkway Eric Farrar Houston, Texas 77019 State Bar No. 24036549 Telephone:(713) 533-3800 efarrar@olsonllp.com Facsimile:(713) 533-3888 Jenny M. Rogers State Bar No. 24060155 ATTORNEYS FOR REAL jrogers@olsonllp.com PARTY IN INTEREST TABLE OF CONTENTS
TABLE OF CONTENTS ...........................................................................ii
INDEX OF AUTHORITIES .................................................................... iii
APPENDIX ............................................................................................... iv
SUR-REPLY .............................................................................................. 1
PRAYER .................................................................................................... 4
CERTIFICATE OF COMPLIANCE.......................................................... 6
CERTIFICATE OF SERVICE................................................................... 6
ii INDEX OF AUTHORITIES
CASES
In re ExxonMobil Corp., 97 S.W.3d 353 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) ........................................................................... 4
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ......................................... 4
STATUTES, RULES AND OTHER AUTHORITIES
Tex. R. Civ. P. 193.3 .............................................................................. 1, 3
Tex. R. Civ. P. 193.4 .............................................................................. 2, 3
iii APPENDIX
APPENDIX TAB
SECOND SUPPLEMENTAL RECORD .......................................................... K
iv TO THE HONORABLE THIRD COURT OF APPEALS:
Pursuant to this Court’s order granting leave to file a sur-reply,
Real Party in Interest Travis Central Appraisal District submits the
following:
SUR-REPLY
1. In its Reply, Relator for the first time asserts that “there is
no evidence that TCAD ever actually served Prudential with a
subpoena duces tecum.” Relator’s Reply at 12. However, the record
reveals at the oral hearing on its Motion to Quash held on August 3,
2017, Relator’s counsel acknowledged a subpoena had been issued.
Ms. Michel: They issued a subpoena to Prudential as well. And I spoke with Prudential’s counsel regarding these matters, and we had already filed the motion to quash and we were already in a position to defend it, and they felt that they would rest on our efforts. Tab 9 at 12, lines 6-11 (emphasis added).
A copy of the subpoena duces tecum, with a notarized officer’s
return, is attached hereto as a supplement to the Record at Tab 26.
2. In its Reply, Relator incorrectly asserts that TCAD did not
object in the trial court that its trade secret arguments and evidence
were untimely. In violation of Texas Rules of Civil Procedure 193.3 and
193.4, by Relator’s own admission, the first time Relator even attempted to assert confidentiality1 was in in its reply in support of its
motion to quash filed August 2, 2017—one day prior to the oral hearing
on said motion. Reply at 13. Relator did not attach to its reply an
affidavit or any other evidence in support of its contention that the
appraisal was confidential, nor did Relator assert that the appraisal
was a trade secret. 2 At the oral hearing on its motion to quash, Relator
presented testimony from Mr. Fredrick Butt regarding confidentiality.
Tab 9 at 33-34. Prior to Mr. Butt’s testimony, TCAD objected that the
witness had not been previously disclosed and that his testimony
constituted unfair surprise and prejudice. Tab 9 at 19, lines 6-7, 14-20.
Regardless of whether Relator meant for Mr. Butt’s testimony to
address confidentiality or to address the trade secret privilege, TCAD
objected at the time of the hearing that the testimony was unfair
surprise.
3. In attempting to assert CBRE’s trade secret privilege,
Relator continued in its tactic of unfair surprise. In violation of Texas
Rules of Civil Procedure 193.3 and 193.4, Relator again waited until
1 “Confidentiality” is not a privilege. Relator did not reference a trade secret privilege in its August 2, 2017 reply. Tab 21 (attached to Relator’s Reply). 2 This first time Relator specifically identifies a trade secret privilege is in its
Motion to Reconsider. Tab 17. 2 September 27, 2017—one day prior to the trial court’s submission date
on its motion to reconsider—to file its reply to TCAD’s response.
Attached to the reply, Relator for the first time presented the affidavit
testimony of Mr. David Thibodeaux who testified regarding CBRE’s
alleged trade secret. Tab 14 at 16. The following day, the trial court
issued its order. Tab 15. TCAD barely had 24-hours notice of the
affidavit, so there was no time for TCAD to complain that the
Thibodeaux affidavit was not timely.
4. Finally, there is no evidence in the record that Prudential
intends to assert any privilege whether on its own or by way of Relator.
As stated above, Relator’s counsel at the oral hearing on Relator’s
motion to quash stated that Prudential had elected not to participate in
the proceedings and would rely on Relator’s efforts in arguing Relator’s
motion to quash. Tab 9 at 12, lines 6-11. There was nothing for TCAD
to object to in this regard. The first time TCAD became aware that
CBRE would attempt to assert a privilege was one day before the
court’s submission date on Relator’s motion to reconsider. With less
than 24-hours notice, TCAD did not have sufficient time to object or to
respond to Relator’s untimely assertion of CBRE’s privilege. This Court
3 “must uphold the trial court’s order on any ground supported by the
mandamus record.” In re ExxonMobil Corp., 97 S.W.3d 353, 358 (Tex.
App.—Houston [14th Dist.] 2003, orig. proceeding). When factual
matters are within the trial court’s discretion, “the reviewing court may
not substitute its judgment for that of the trial court.” Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992). It was within the trial court’s
discretion to consider what, if any, weight to afford the affidavits
Relator presented in support of its assertion of privilege.
PRAYER
To determine whether the trial court clearly abused its discretion,
this Court must examine the specific facts of this case in light of the
actual law. Relator presents broad, nonspecific arguments of facts and
law. Relator relies on a one-sided version of facts, without regard to the
entire record. Relator provides overly broad, mistaken statements of
cases to support its argument. The complete record and a correct
reading of the court opinions cited show that the trial court did not
commit a clear abuse of discretion. Therefore, Real Party in Interest,
Travis Central Appraisal District, respectfully requests this Court deny
4 Relator’s petition for writ of mandamus and prays for such other relief
as it may show itself justly entitled.
Respectfully submitted,
OLSON & OLSON, L.L.P.
By: /s/ Tammy White-Chaffer Tammy White-Chaffer State Bar No. 24008273 serv.tchaffer@olsonllp.com Eric C. Farrar State Bar No. 24036549 EFarrar@olsonllp.com Jenny M. Rogers State Bar No. 24060155 jrogers@olsonllp.com Wortham Tower, Suite 600 2727 Allen Parkway Houston, Texas 77019 Telephone: (713) 533-3800 Facsimile: (713) 533-3888 ATTORNEYS FOR REAL PARTY IN INTEREST
5 CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing Real Party in Interest’s Sur-Reply
has a word count of 865.
/s/ Tammy White-Chaffer Tammy White-Chaffer
CERTIFICATE OF SERVICE
I hereby certify that on January 8, 2018, a true and correct copy of
the foregoing Real Party in Interest’s Sur-Reply was served on the
following parties:
Lorri Michel Via electronic service MICHEL GRAY, LLP 812 W. 11th Street, Suite 301 Austin, Texas 78701 lorri@michelgray.com
Ryan D. Clinton Via electronic service DAVIS, GERALD & CREMER 600 Congress Avenue, Suite 3100 Austin, Texas 78701-2984 rdclinton@dgclaw.com
6 APPENDIX K TAB 26 P.G.A. P.O. Box 460446, Houston, Texas 77056-8446 Litigation Support Service (713)62r-070s 6n6t2017 The Prudential Insurance Co. of America c/o Prudential Asset Resources Attn: Custodian of Records/Subpoena Processing 2100 Ross Ave., Suite 2500 Dallas, Texas 75201 By and through its Registered Agent CT Corp. 1999 Bryan St., Suite 900 Dallas, TX 75201
Re: Catherine Tower LLC vs. Travis Central Appraisal District; See Attached Exhibit $A" & 338)'
Greetings,
YOU ARE HEREBY SERVED with a State of Texas Subpoena. All afforneys of record and the Court have been notified according to due process of law.
The attached subpoena is a summons for the release of specific records pertaining to the individual or entity named in the subpoena. Please read it carefully, these records are being requested because they contain information that relates to the named judicial proceedings. The subpoena also requires the custodian of records to answer the attached written questions and affidavit under oath. Ifyou are located in the general Houston area, please contact our office as soon as the records are ready. We may also be contacting your office to make arrangements to send a courier to pick up these records. If you are out of town, please call prior to mailing. We may request that you overnight the records to us via our overnight account.
Please be sure to complete and sign the enclosed questions and affidavit and include them with the requested records. We must have the completed deposition in our office no later than July 15r2017,
If the fee for these records is above $35.00, please call our office prior to copying for a fee approval. If you have any questions regarding this request or need further information, please do not hesitate to call us. We appreciate your courteous and prompt attention to this very important matter.
ll* Sincerely.
Cissy Smither Enclosures: Subpoena Cause No. D-l -GN- I 6-002929
CATHEzuNE'TOWER LLC $ IN THE ruDICIAL COURT OF N
VS. $ TRAVIS COUNTY. TEXAS $ TRAVIS CENTRAL APPRAISAL DISTRICT li 26 lTH ruDICIAL DISTRICT'
\OTICE OF INTENTION TO TAKE DEPOSITION BY WRITTEN OUESI'IONS 'to: Plaintiff. Catherine J'olver LLC. by and through it's attomey of record. Mr. Lorri Michel, Michel Gray. LLP, 812 W. 1l'h Street. Suite 301. Austin" texas 78701.
You will please take notice that after twenty (20) days from the service of a copy hereof with attached qucstlons. a deposition by u,ritten questions will be taken ol the Custodian of Records for:
l'o: The Prudential Insurance Company of America c/o Prudential Asset Resources, Inc.; by and through it's registered agent: C'l'Corp. " 1999 Rryant St.. Suite 900. Dallas. Texas 75201.
See Attached Exhibit A & B
Betbre a Notary Public. an Officer of the State of Texas and an employee of PCA., 1770 Saint James Place, Suite 615. Houston. Texas 77056 (713) 621-0705 or their designated agentl which deposition with attached questions may be used in evidence upon the trial of the above styled and numbered cause pending in the above named court. Notice is further given that request is here made as authorized under revised Rule 201 . Texas Rules of Civil Procedure, to the officer authorized to take this deposition to issue a SUBPOENA DEUCES TECUM and cause it to be served on the u,itnesses to produce all items as listed above and to turn all such records over to the officer authorized to take this deposition so that photographic reproductions of the same may be made by him and attached to the said deposition.
Respectfu lly submitted. -l?t u i : ,. '\* (- l''--*-- -- "r "l ammy White-Chaffer TBN: 24008273 Olson & Olson Wortham Toiver 2727 Allen Parkway. Suite 600 Houston. I'exas.77019 (7 I 3 )533-3800 Attorney for Defendant Iravis Central Appraisal District
CERTIT'ICATE OF SERVICE
I certify that a true and exacl copy of the tbregoing Notice of Intention to Take Deposition by Written Questions was delivered via mail to the respectir,e parties or attomeys of record:
Mr. Lorri Michel. Michel Grav,.tLP,.,8l}q. l1'h Street, Suite 301. Austin. Texas 78701. / , , /1 I
rj 'I - Srvorn to and subscribed before me on this the
FATi'llCiA StvilTHER N';ary lD # 3660844 h,lv fxPites june 4, 2rr2'1 STATE OF TEXAS SUBPOENA DUCES TECUM THE STATE OF TEXAS: To any duly authorized Office of the State of Texas-GREETING:
YOU ARE HEREBY COMMANDED TO SUBPOENA AND SLIMMON the following witness:
Custodian of Records: The Prudential Insurance Co. of America c/o Prudential Asset Resources Attn: Subpoena Legal Processing 2100 Ross Ave.,Suite 2500 Dallas, Texas 75201 By and through it's Registered agent - C.T. Corp 1999 Bryan St., Suite 900 Dallas, Texas 75201
to be and appear and provide answers before a Notary Public or Certified Court Reporter in and for the State of Texas with P.C.A., 1770 St James Place. Suite 615, Houston, Texas 77 056, or their designated agent on the forthwith day of instanter, then and there to give evidence the instance of the Defendant in that certain Cause No. D-I-GN-16-002929 now pending in the 261't Judicial District Court of Travis County, Texas, in which: CATIIERINE TOWERLLC
v.
TRAVIS CENTRAL APPRAISAL DISTRICT
And bring and produce the following things to wit: See Attached Exhibit '6A" & '68" including but not limited to any type documents in the possession, custody , or control of said witness then and there to remain from day to day and term to term until discharged according to the law.
Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt ofcourt from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement or both.
wITNESS MY HANDtt',i.tt. /'1 ouvo Issued at the Request of: Tammy White-Chaffer TBN:24008273 OLSON & OLSON 600 Wortham Tower 2727 AllenParkway fu{res June 4, 2021 Houston. Texas 77019 (7 I 3)533-3 800 - Telephone
Came to hand this the laa^v a ?t, ,r9:Ft!f,1,:,TlH.--f.l,r, and executed,nl, *: Z,Ou,,u--S]cU r4o-O.M. in the following manner: by delivering. Q-,Le-c> rp oS g),). -Hi',xt**-]'},, J##'L."J I t* i="-4 e X '
Returned this the .% duy of (Y*vq vq 2U7.
PATRIChSilTTHER My Nohry lD # 3660S44 Expirea June 4, E2i Exhibit ,{
I) EPOS IT ION Oir' WRITT'EN QUnS IrONS
L'ausc \tr. I) - l-Cr \ - l6-0()2919. Ltrthct'trtt''l owc't' LI-C. t f ruyr.t ('cutrtti -l lit7tt'trt.tLtt' l)r.vit'ttt. in the I tr i s i C'rr rl I)rstnct L'ourt. Iravrs C'ount1.'. exas
I . ,,\nr rippi'aisirls" r.aluatit)ns or csllnlatcs ()l value ircrlorureri rn comection u'ith the loan b1' lhe Prucientral Irrsurancc L'onrDauv ot'Amenca to Cathcrine'forver. l.l-C. secured 111 pan l-ru the propcrt)'localed at ll4llartou Sprrngs Road.,\ustin. lexas. said propcrtl berng iurthcr detlncd iu that Dccd ot"l rusr. Assrgumerlt o1 l.cases urd Rents SecLLrrty,\sreement datect April 19. 1016. a copy ot'rvhich rs altached as frrhibrt "8". ELECTRONICALLY RECORDED 2016066492 TRV 23 PGS
CATIIERINETOWER, LLC, as grantor (Borrower)
to
KELLEY H. BUTLEFI" asmrsteg (Trustee)
forthe bcnefit of
TI{E PRUDENTIAL INSURA}.ICE COMPAhIY OF AMERICd as beneficiary (Lender)
DEED OF TRUST AI\D SECI]RITY AGREEMENT
Dated: As of April29,2016 Location: 214 Barton Springs Road Austin, Texas Count5t Travis Couaty
PRETARED BYAND UPON RECORDATION RETT]RN TO:
Lockc I-rd LLP 111 S. Wackcr Drive Chicago, Illinois 60606 Attention: Gina M. Gamal Ioan Number: 7061W847 and 7061 I 0097
Pnd€r*i8l Lou No. 7O6109t47 d 7061 1009? ltcCelhcrinc DGcd of Trult ald S€curity Agr!.t tcnt
ExHlBlT"Ei" Cause No. D-l-GN- 16-002929
CATHERINE TOWER LLC IN THE JUDICIAL COT]RT OF
vs. $ $ TRAVISCOUNTY,TEXAS TRAVIS CENTRAL APPRAISAL S DISTRTCT $ 261" JUDICIAL DISTRICT
DEPOSITION UPON WRTTTEN QUESTTONS PROPOTTNDED TO THE CUSTODIAN OF RECORDS FOR:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA C/O PRUDENTIAL ASSET RESOI.JRCES, INC.
RECORDS PERTAINING TO: See Attached Exhibit "A" & "8" 1. Please state your full name.
Answer:
2. Please state by whom you are employed and the business address.
3. What is the title of your position or job?
4,.Please provide to the Officer taking this deposition photostatic copies of the complete records outlined in the subpoena duces tecum. Have you complied? If not, why not?
Witness, Custodian of Records
Before me, a notary public, on this day personally appeared , known to me to be the person whose name is subscribed and has personal knowledge to the foregoing document and, being by me first duly sworn, declared that the statements therein contained are true and correct.
Given under my hand and seal of ofhce this _day of A.D.20
NotaryPublic in and for the State of My Commission Expires: Cause No. D-l-GN-16-002929
CATHERINE TOWER LLC $ I},i THE JUDICIAL COURT OF $
vs. $ $ TRAVIS COLINTY, TEXAS $ TRAVIS CENTRAL $ APPRAISAL DISTRICT $ 26lst JUDICIAL DISTRICT
AFFIDAVIT
RECORDS PERTAINING TO: SEE ATTACHED EXHIBIT *A* & *8"
Beforeme,theundersignedauthority,personal1yappeared-who, being by me duly sworn, deposed as follows:
"1, the undersigned, am over 18 years of age, of sound mind, capable of making this affidavit and personally acquainted with the facts herein stated:
I am the Custodian of Business Records for: The Prudential Insurance Company of America c/o Prudential Asset Resources. Inc.
Attached hereto are pages of records. These said records are kept in the regular course of business, at the offices of The Prudential lnsurance Company of America c/o Prudential Asset Resources" Inc. and it was in the regular course of business at the offices ofThePrudentiallnsuranceCompanyofAmericac/oPrudential Asset Resources, Inc. or an employee and/or representative with personal knowledge of the act, event or condition, opinion, or documents recorded to make the records or to transmit information thereof to be included in such records; and the records were made at or near the time of the act, event or condition or reasonably soon thereafter.
The records attached hereto are the original or exact duplicates of the original file or files and nothing has been removed from the original file or files in my possession pertaining to the aforementiotred party before making these copies.
AFFIANT/CUSTODIAN OF RECORDS
Before me, a notary public, on this day personally appeared , known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly swom, declared that the statements therein contained are true and correct.
Given under my hand and seal of office this day of A.D., 20
Notary Public in and for The State ofTexas