James E. Wade v. Johnny Wade, Individually Amanda Wade, Individually, and Amanda Wade, as the Independent of the Estate of Edell Wade ( 2015 )

ACCEPTED
03-15-00100-CV
6678421
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/27/2015 11:28:32 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00100-CV
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS
AT AUSTIN 8/27/2015 11:28:32 AM
JEFFREY D. KYLE
Clerk
IN RE THE ESTATE OF EDELL WADE, DECEASED.
JAMES E. WADE,
Appellant,
v.
JOHNNY WADE AND AMANDA WADE, INDIVIDUALLY AND
AMANDA WADE AS THE INDEPENDENT EXECUTOR OF THE
ESTATE OF EDELL WADE,
Appellees.
Appealed from the County Court at Law of Burnet County, Texas
APPELLANT’S BRIEF IN REPLY
TO APPELLEES’ BRIEF
RICHIE & GUERINGER, P.C.
SHELDON E. RICHIE
State Bar No. 16877000
EMILY J. SEIKEL
State Bar No. 24072331
100 Congress Avenue, Suite 1750
Austin, Texas 78701
512-236-9220 telephone
512-236-9230 facsimile
srichie@rg-austin.com Email
eseikel@rg-austin.com Email
ATTORNEYS FOR JAMES E. WADE
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES ...................................................................................3
REPLY TO APPELLEES’ PRELIMINARY STATEMENT .............................4
REPLY TO APPELLEES’ ARGUMENTS ON ISSUE ONE ...........................10
A. Appellees’ Response Ignored That Bud Had No Legal Duty or Standing
Until 2010 ................................................................................................................ 11
B. The Discovery Rule Does Apply to Bud’s Claims .................................................. 12
C. Bud Did Not Have Notice of His Claims ................................................................. 14
D. The Trial Court’s Summary Judgment was Based on Limitations, and
Limitations Alone .................................................................................................... 16
REPLY TO APPELLEES’ ARGUMENTS ON ISSUE TWO ..........................17
A. Amanda Wade Testified that She Did Not Think About Fairness or Benefit
to Edell ..................................................................................................................... 18
B. The Evidence does Not Support that Edell was Represented by Counsel in
Both Transactions .................................................................................................... 19
C. The Evidence does Not Support that Edell Voluntarily, and with Full
Disclosure, Chose to Sell the Ranch and Chose to Reduce the Principal in
Connection with the Modification ........................................................................... 21
PRAYER .................................................................................................................25
CERTIFICATE OF COMPLIANCE ..................................................................26
CERTIFICATE OF SERVICE ............................................................................27
APPENDIX .............................................................................................................28
VERIFICATION....................................................................................................31
2
INDEX OF AUTHORITIES
Cases
Boucher v. Willis, 236 S.W.2d 519 ..........................................................................11
Chapal v. Vela, 461 S.W.2d 466 ..............................................................................11
Cobb v. TDCJ, 965 S.W.2d 59.................................................................................10
In re Estate of Herring, 970 S.W.2d 583 .................................................................10
Jordan v. Lyles, 455 S.W.3d 785 .............................................................................24
Kansa Reinsurance Co. V. Congressional Mortgage Corp., 20 F3d 1362 .............11
Matter of Estate of Matejek, 928 S.W.2d 742 .........................................................10
Moczygemba v. Moczygemba, -- S.W.3d --, No. 04-14-00110, 2015 WL 704405 .12
Mooney v. Harlin, 622 S.W.2d 83 ...........................................................................11
Stephen County Museum, Inc. v. Swenson, 571 S.W.2d 257 ...................................18
Texas Bank and Trust Co. v. Moore, 595 S.W.2d 502 ............................................18
Vogt v. Warnock, 107 S.W.3d 778 .................................................................... 18, 23
3
REPLY TO APPELLEES’ PRELIMINARY STATEMENT
1. Appellees’ list of “Bud’s representations vs. the evidence” in their
Preliminary Statement contains inaccuracies. In reply Appellant would show the
following.
2. Alleged misrepresentation #1: Appellees’ evidence does not
controvert Bud’s representations that “Johnny and Amanda Wade were the
clients of Michael Martin,” and that “there is no evidence that [Mrs. Wade]
had the benefit of independent advice.” First, it is an undeniable fact that Mr.
Martin clearly and repeatedly identified Johnny and Amanda as the ‘client’ in the
physical file he created at the time in 2009 and that he was paid for his work on the
Modification by Amanda Wade, not Edell Wade.1 While Michael Martin did
testify at the trial in 2014 that he believed that Edell Wade had been his client, he
also testified that he had considered the Modification a “joint project.”2 Mr.
Martin further confirmed that he could have used the unique file number that he
used for previous work he had done directly for Edell, yet he chose to list Johnny
and Amanda as clients with a separate file number for his work on the
1
RR: Vol. 3 of 4 at 14, 15, 19, 21 [Tab J, Martin & Millican File]; and
SUPP. RR: Vol. 2 of 6 at 116:17 – 118:1 [Tab K, Martin Trial Testimony].
2
SUPP RR: Vol. 2 of 6 at 87:21-24 [Tab K, Martin Trial Testimony].
4
Modification. 3 He acknowledged that communications on the Modification were
sent directly to Amanda and that Amanda paid for the work.4
3. Mr. Martin’s testimony that he believed he had an obligation to serve
Edell’s interests does not, however, demonstrate that she had “the benefit of
independent advice.” There is absolutely no evidence that Edell Wade was aware
at all of the principal reduction of around $40,000.00, and the Modification
document stated on its face in bold letters that its “SOLE PURPOSE” was
elimination of interest. 5 Mr. Martin’s file entry on the matter stated that the note
was to be modified for either an elimination of interest or reduction of the
principal.6 Mr. Martin could hardly have given independent advice on something
he knew nothing about, and he testified ignorance on the principal reduction. Mr.
Martin testified “I may not have remembered at that time that they even talked
about reducing the balance. And to this day I don’t know if or how much they
reduced it” and that he thought he was reducing the interest to zero. 7 He testified
that he did not scrutinize the numbers as “I really didn’t know what was going on.
It changed two or three times. I really didn’t know and hoped that with the
accountant they would work it out to where everybody was happy,” and “I didn’t
3
SUPP RR: Vol. 2 of 6 at 116:2-19 [Tab K, Martin Trial Testimony].
4
SUPP RR: Vol. 2 of 6 at 116:20 – 118:1 [Tab K, Martin Trial Testimony].
5
RR: Vol. 3 of 4 at 39-46 [Tab L, Modification Agreement].
6
RR: Vol. 3 of 4 at 15 [Tab J, Martin & Millican File].
7
SUPP RR: Vol. 2 of 6 at 121:13 – 122:8 [Tab K, Martin Trial Testimony].
5
imagine they wanted my input.”8 Mr. Martin could not have provided any
meaningful independent counsel because he was not cognizant of the fact that a
principal reduction was even occurring as part of the Modification, much less in
what amount.
4. Nor did Edell receive independent counsel from her accountant Lori
Graham. In her testimony Ms. Graham confirmed that the post-it note that advised
her of the elimination of interest had been delivered to her by Amanda Wade with
other documents for her work in 2010 on Edell’s 2009 taxes.9 The post-it note was
written by Amanda Wade several months after the Modification and states that
payments with interest were made only through May, and that Edell “then relieved
us of our interest and changed our note to principal only.” 10 It contains no mention
of a gift or a principal reduction.11 Ms. Graham confirmed that Amanda was her
point of contact and she testified that Edell didn’t actually come in to get her
return, and that she hadn’t spoken with Edell in several years. 12 Ms. Graham
testified that she went off of the information provided to her to prepare Edell’s tax
returns and that she would have needed to know about a forgiveness of debt or gift
8
SUPP RR: Vol. 2 of 6 at 88:12-25 [Tab K, Martin Trial Testimony].
9
SUPP RR: Vol. 3 of 6 at 8:6 – 9:20 [Tab M, Lori Graham Trial Testimony].
10
RR: Vol. 3 of 4 at 3 [Tab N, Amanda Wade Note to Lori Graham]; and
SUPP RR: Vol. 3 of 6 at 132 [Tab O, Amanda Wade Trial Testimony].
11
RR: Vol. 3 of 4 at 3 [Tab N, Amanda Wade Note to Lori Graham]; and
SUPP RR: Vol. 3 of 6 at 132 [Tab O, Amanda Wade Trial Testimony].
12
SUPP RR: Vol. 3 of 6 at 9:12 – 20; 12:15 – 16; 12:2-3 [Tab M, Lori Graham Trial
Testimony].
6
or other details of a loan restructure but that she did not interview Edell Wade to
get the details.13 Ms. Graham testified that she “probably” spoke with Mr. Martin
but she did not recall the specifics. She stated “I do know that the modification
was not my recommendation.”14
5. Alleged misrepresentation #2: Appellees have not controverted Bud’s
representation that the only hard evidence of communication between Mr. Martin
and Edell is dated after the execution of the Modification.15 Johnny’s self-serving
testimony that he took his mother to Mr. Martin’s office and left the room while
they discussed it is (a) not confirmed by Mr. Martin and (b) was never mentioned
by Johnny Wade or anyone else in prior deposition testimony or other discovery
conducted during more than three years leading up to trial. And, as already
discussed, the terms “Mrs. Wade” and “client” are frequently used in Mr. Martin’s
file to reference Amanda Wade. Mr. Martin did not testify that he spoke with
Edell Wade.
6. Alleged misrepresentation #3: Appellees have not produced any
evidence that Edell wanted the Modification, in particular the $40,000.00 reduction
in principal, other than self-serving testimony from Johnny and Amanda. The
reliable evidence supports the other view: the Modification that Edell signed
13
SUPP RR: Vol. 3 of 6 at 16:21 – 19:5 [Tab M, Lori Graham Trial Testimony].
14
SUPP RR: Vol. 3 of 6 at 21:11 – 24 [Tab M, Lori Graham Trial Testimony].
15
RR: Vol. 3 of 4 at 20 [Tab J, Martin & Millican File].
7
stated on its face in bold lettering that its “SOLE PURPOSE” was only for the
elimination of interest.16 The testimony of Mr. Martin and Ms. Graham – the
individuals who were not a party to the transaction and who were in a position to
ostensibly implement Edell’s wishes – confirmed that they were not aware of a
principal reduction and did not speak with Edell about a principal reduction.
7. Alleged misrepresentation #4: Appellants claim that Cavness never
rejected the material terms about which Bud complains, but this too is not
supported by the evidence. Amanda herself testified that Mr. Cavness had
questioned the price and also recommended a “regular interest rate.” 17 The
documents show that Amanda reduced the default interest rate from 18% to 12%. 18
8. Alleged misrepresentation #5: The jury was permitted to hear only a
limited testimony on the 2004 sale of the ranch to Johnny and Amanda, and
specifics about the sale were not discussed. Appellant was not able to, for
example, call an expert to appraise the fair market value of the ranch. At trial, in
response to an objection to testimony about the sale, Judge Savage directed counsel
during trial: “So we can’t go into the specific facts of the sale other than to allow
plaintiff to show part of a plan or scheme to defraud her from the beginning.” 19
16
RR: Vol. 3 of 4 at 39-46 [Tab L, Modification Agreement].
17
SUPP RR: Vol. 3 of 6 at 57:4-7 [Tab O, Amanda Wade Trial Testimony]; and
CR: 407 [Tab P, Amanda Wade Deposition].
18
CR: 364 – 380 [Tab Q, Pat Cavness File].
19
SUPP RR: Vol. 3 of 6 at 46 [Tab R, Judge Savage Statement During Trial].
8
9. Alleged misrepresentation #6: Bud’s testimony at trial is irrelevant to
the legal question that was improperly decided at summary judgment regarding
whether or not he had a duty of reasonable diligence to investigate the terms of the
2004 sale of the ranch (as discussed more fully herein) and whether improper fact-
findings were made at summary judgment prior to trial.
10. Moreover, Bud’s professed vague suspicion did not serve as notice to
toll the limitations period. He attempted to obtain details on the sale of the ranch
from Nancy and was unsuccessful. Nancy Burns testified that Johnny purposefully
decided to conceal the sale from the other siblings before it happened. She recalled
suggesting to him that he notify the other siblings of the sale by letter, but that
“Johnny said no, that the place would not ever sell if they ever found out.”20
Nancy testified that Johnny said he would not send a letter “because he was afraid
that somebody would object and that the place would not sell.” 21 Johnny also
testified that he did not notify other people about the sale or its terms. 22 Amanda
also testified that information on the sale was deliberately not sent to the other
siblings. 23 Bud, a third party who had no duty in terms of diligence, was decidedly
not on notice of its terms and did not find out the terms until the passing of his
mother when, in connection with the administration of her Estate, he had access to
20
SUPP RR: Vol. 2 of 6 at 39:6 – 24 [Tab S, Nancy Burns Trial Testimony].
21
SUPP RR: Vol. 2 of 6 at 41:7 – 12 [Tab S, Nancy Burns Trial Testimony].
22
SUPP RR: Vol. 5 of 6 at 9:23 – 10:5 [Tab T, Johnny Wade Trial Testimony].
23
SUPP RR: Vol. 3 of 6 at 141 – 142 [Tab O, Amanda Wade Trial Testimony].
9
information previously undisclosed. As he testified, the sale “was all done in
secret.”24 The very existence of conflicting testimony on what Bud could have
known or what he should have done to find out proves the Appellant’s point as to
Issue One – summary judgment was improper because there were disputed issues
of material fact that were for a jury, not a judge, to assess.
REPLY TO APPELLEES’ ARGUMENTS ON ISSUE ONE
11. In their summary judgment arguments to the Trial Court, Appellees
did not meet their “particularly heavy burden” to establish their affirmative defense
of limitations and to either (i) conclusively negate the applicability of the discovery
rule or, if the discovery rule does apply, (ii) conclusively establish that the
limitations was not tolled by showing that there is no genuine issue of material fact
about when Bud discovered or should have discovered through reasonable
diligence, the nature of the injury. Cobb v. TDCJ, 965 S.W.2d 59, 61
(Tex.App.―Houston 1st Dist.] 1998, no writ); Matter of Estate of Matejek, 928
S.W.2d 742 (Tex.App.―Corpus Christi, 1996) writ denied per curiam; In re
Estate of Herring, 970 S.W.2d 583, at 586 (Tex.App.—Corpus Christi 1998, no
pet.) (“Specifically, a defendant seeking summary judgment on the basis of
limitations must prove when the cause of action accrued and, when applicable,
must negate the discovery rule by proving as a matter of law that there no genuine
24
SUPP RR: Vol. 4 of 6 at 43:23 [Tab U, Bud Wade Trial Testimony].
10
issue of fact about when the plaintiff discovered or should have discovered the
nature of the injury.”). Appellees have failed to meet their burden as to both.
A. Appellees’ Response Ignored That Bud Had No Legal Duty or Standing
Until 2010
12. Bud had no duty of reasonable diligence to discover the terms of the
2004 sale of the ranch, nor did he have standing to challenge it, until after the death
of his mother, Edell Wade, in 2010 when he became a beneficiary of her Estate.
Bud was neither a party to the 2004 sale nor a third-party beneficiary. For
purposes of limitations, a person may not be charged with constructive notice of
the actual knowledge discernible from examination of public records unless that
person was “under an obligation to search the records.” Kansa Reinsurance Co. v.
Congressional Mortgage Corp., 20 F.3d 1362, 1370 (5th Cir. 1994); Boucher v.
Willis, 236 S.W.2d 519 (Tex.Civ.App.—Eastland 1951) (the absence of a legal
duty to examine deed records bars constructive notice). It was not until Bud
became a beneficiary of the Estate after his mother’s passing that he was charged
with a duty to investigate the contents of the probate records, and he fulfilled that
duty. Mooney v. Harlin, 622 S.W.2d 83, 84 (Tex. 1981); see also Chapal v. Vela,
461 S.W.2d 466, 470 (Tex.Civ.App.—Corpus Christi 1970) (charging devisees
under a will with constructive notice of all of the ownership of land by the father’s
estate).
11
B. The Discovery Rule Does Apply to Bud’s Claims
13. The evidence of Bud’s injury is “objectively verifiable” and the nature
of his injury is “inherently undiscoverable.” Appellees’ summary judgment
arguments to the Trial Court were insufficient to show otherwise and their current
arguments also fail.
14. The recent case relied upon by Appellees is distinguishable from the
instant case; moreover, it was a fact-specific holding and does not stand for the
general proposition Appellees urge, that “there is no ‘objectively verifiable’
evidence of wrongdoing when a mother sells her ranch to her son and his wife” and
the discovery rule is therefore inapplicable. See page 32 of Appellees’ Brief;
Moczygemba v. Moczygemba, --- S.W.3d ---, No. 04-14-00110, 2015 WL 704405
(Tex.App.—San Antonio, Feb 18, 2015, n.p.h.).
15. Moczygemba addressed a dispute between a living mother (who was
the plaintiff), and her sons, to whom she had transferred real property for below
market value years prior. 2015 WL 704405. She claimed she did not realize that
she had conveyed mineral rights along with the land, despite the fact that the
inclusion of mineral rights was readily apparent on the deeds. After reciting
testimony from the mother about her intentions and the sons’ intentions, the court
found no objectively verifiable evidence of an injury based on the deeds. Id. at *6.
12
16. In the instant case, there is no available testimony from Edell
regarding her intentions as to the sale of the ranch in 2004. Even if she had a
reason to sell the Ranch at below-market value, there remains objectively
verifiable evidence of injury to her and to Bud individually. The terms of this
seller-financed sale, in addition to the purchase price itself, caused injury to Edell
and to Bud as a beneficiary of her Estate and the Note itself (which was not
recorded) provides objectively verifiable evidence of that. The Note required
Johnny and Amanda to pay Edell – who was 89 years old at the time – $500,000
over a period of 32 years, and at an annual interest rate of two percent (2%). 25 This
meant that Edell would have to live to be 121 years old in order to be fully paid on
the Note. 26 Thus, in lieu of the Ranch – by far the most significant asset in Edell’s
possession – and in lieu of payment for that asset (even a below-market value lump
sum), Edell and her Estate received comparatively insignificant monthly payments
of $1,848 and later just $1,200 (after the Modification in 2009).
17. The injury is also “inherently undiscoverable.” First, Bud had no duty
of reasonable diligence until his mother passed in 2010. Moreover, he nonetheless
did exercise reasonable diligence and could not discover the terms of the Note.
First, the publicly recorded documents did not reveal the purchase price nor the
25
RR: Vol. 3 of 4 at 58-66 [Tab V, Promissory Note].
26
RR: Vol. 3 of 4 at 58-66 [Tab V, Promissory Note].
13
terms of the Note. 27 Second, Johnny purposefully decided to conceal the sale from
the other siblings before it happened. Nancy Burns testified that she suggested that
the other children be notified of the sale by letter, but that “Johnny said no, that the
place would not ever sell if they ever found out.”28 Nancy testified that Johnny
said he would not send a letter “because he was afraid that somebody would object
and that the place would not sell.”29 Johnny also testified that he did not notify
other people about the sale or its terms. 30 Amanda also testified that information
on the sale was deliberately not sent to the other siblings. 31
18. The discovery rule is applicable.
C. Bud Did Not Have Notice of His Claims
19. The Appellees did not carry their high burden at summary judgment
to conclusively demonstrate that Bud had notice of his claims, and the absence of
any disputed issues of material fact on the issue of notice. Bud’s attempt to obtain
details from Nancy and inability to do so, coupled with Johnny’s intentional
decision not to disclose the terms of the sale, evidences his lack of notice. He
could not have gleaned the details of the Note from the public records because they
were not there.
27
Appellees incorrectly state that the purchase price of $500,000 was of public record as of
March 2004. The Deed of Trust does not state “purchase price,” rather identifies the
amount of principal that was financed. Tab W, CR 86.
28
SUPP RR: Vol. 2 of 6 at 39:6 – 24 [Tab S, Nancy Burns Trial Testimony].
29
SUPP RR: Vol. 2 of 6 at 41:7 – 12 [Tab S, Nancy Burns Trial Testimony].
30
SUPP RR: Vol. 5 of 6 at 9:23 – 10:5 [Tab T, Johnny Wade Trial Testimony].
31
SUPP RR: Vol. 3 of 6 at 141 – 142 [Tab O, Amanda Wade Trial Testimony].
14
20. In their current brief, Appellees refer to an interrogatory response
where Bud stated his belief that Johnny and Amanda pressured Edell into selling
the ranch and that they took advantage of her. See page 35 of Appellees’ Brief.
His response does not say he thought that “at the time” of the sale, and is not
evidence of notice.
21. Bud’s testimony at trial is, needless to say, not informative to whether
the Appellees carried their burden as movant in a summary judgment proceeding
conducted prior to trial. Nonetheless, the testimony cited to by Appellees also does
not serve to conclusively establish that he had notice and that the limitations period
cannot be tolled. The recorded documents did not reveal critical information on
the terms of the deal. Johnny and Amanda explicitly testified that they deliberately
did not reveal information to their siblings. 32 Bud testified it was all done in
secret.33 There is no denying that there were material issues of disputed fact on the
issue of notice and reasonable diligence, and disposition by summary judgment
was premature and improper. The Trial Court, as explained in Appellants’ Brief,
made improper findings of fact. 34
32
SUPP RR: Vol. 5 of 6 at 9:23 – 10:5 [Tab T, Johnny Wade Trial Testimony]; and
SUPP RR: Vol. 3 of 6 at 141 – 142 [Tab O, Amanda Wade Trial Testimony].
33
SUPP RR: Vol. 4 of 6 at 43:23 [Tab U, Bud Wade Trial Testimony].
34
RR: Vol. 2 of 4 at 66, 75 [Tab X, Summary Judgment Hearing Transcript].
15
D. The Trial Court’s Summary Judgment was Based on Limitations, and
Limitations Alone
22. Appellees’ attempt to argue that the Trial Court granted summary
judgment on grounds in addition to limitations is wrong at best, and disingenuous
at worst. The transcript of the summary judgment hearing and Court’s ruling is in
the appellate record. It is more than clear that the Court’s basis for the ruling was
limitations. At the hearing, Judge Savage asked, noting the period during which
Edell Wade was living after the 2004 sale:
“Why didn’t the son call mom and say, Mom what’s
going on? . . . he was aware of the fact that there was a
sale but didn’t inquire of his mother or anyone else what
the terms of the sale were. If he was so concerned about
all of this, why didn’t he inquire using the - - I’m not
talking about going down and digging through public
records. I’m talking about picking up the phone or
dropping by and saying, what’s going on?” 35
“All right. After hearing the evidence -- and let me just
say this. I know that families, kids and families, may take
advantage of a parent to the detriment of the other kids. I
also know that sons don't want to rock the boat if mama
is happy and bring her into the picture of a possible
conflict between the kids. They want their mom to have a
happy home, happy life. And I don't think that possibly
mom got the best deal, but at the same time mom got
other benefits as a result of this deal. And that is to have
someone at the ranch caring for her. I can understand
why he insisted upon buying the ranch if he was going to
live there and take care of mom. Then that would be in
35
RR: Vol. 2 of 4 at 66 [Tab X, Summary Judgment Hearing Transcript].
16
effect, in my mind, a part of the consideration of the sale
of the ranch, was that promise from her son.” 36
23. As pointed out in Appellants’ Brief, this statement is replete with
language that implicates impression, inference, and fact-finding that properly
should be the provenance of the jury. This statement also unequivocally
demonstrates that the basis for the ruling was limitations.
REPLY TO APPELLEES’ ARGUMENTS ON ISSUE TWO
24. The Court instructed the jury that Johnny and Amanda were
fiduciaries to Edell and, as such, they bore the burden to prove that they complied
with their fiduciary duty in connection with the Modification. The instruction to
the jury was that Johnny and Amanda had to prove each and every item of a list of
required conduct. The only way to show compliance with their fiduciary
obligations was to prove by a preponderance of the evidence each of the following:
(a) The transaction in question was fair and equitable to Edell Wade; and
(b) [Johnny and Amanda] made reasonable use of the confidence that Edell
Wade placed in [them]; and
(c) [Johnny and Amanda] acted in the utmost good faith and exercised the
most scrupulous honesty toward Edell Wade; and
(d) [Johnny and Amanda] placed the interests of Edell Wade before [their]
own, did not use the advantage of [their] position to gain any benefit for
[themselves] at the expense of Edell Wade, and did not place
[themselves] in any position where [their] self-interest might conflict
with [their] obligations as a fiduciary. 37
36
RR: Vol. 2 of 4 at 75 [Tab X, Summary Judgment Hearing Transcript].
37
CR: 1541, 1543 [Tab Y, Charge to the Court].
17
[emphasis added.]
25. Texas law applies a presumption of unfairness to transactions between
a fiduciary and a party to whom the fiduciary owes her duties. Texas Bank and
Trust Co. v. Moore, 595 S.W.2d 502 (Tex. 1980). “Critical” to determining
whether there was a breach of fiduciary duty is the ‘determination of whether there
was under the circumstances a good faith effort on the party of [the party claiming
validity] to fully inform [Edell] of the nature and effect of the transactions.” Vogt
v. Warnock, 107 S.W.3d at 778. Both Johnny and Amanda had a duty to ensure
that Edell’s decisions in connection with the Modification were the result of
“voluntary and intelligent consideration.” Stephen County Museum, Inc. v.
Swenson, 571 S.W.2d 257, at 261 (Tex. 1974).
A. Amanda Wade Testified that She Did Not Think About Fairness or
Benefit to Edell
26. Amanda Wade testified that she did not think about the Modification
in terms of fairness.38 She did so despite her awareness that she held a power of
attorney and that she and Edell had a relationship of trust and confidence.39 She
testified that the Modification “obviously benefited me.” 40 She testified that she
38
SUPP RR: Vol. 3 of 6 at 130:8-9, 139 [Tab O, Amanda Wade Trial Testimony].
39
SUPP RR: Vol. 3 of 6 at 59, 129 – 130, 124 - 125 [Tab O, Amanda Wade Trial
Testimony].
40
SUPP RR: Vol. 3 of 6 at 130:15 [Tab O, Amanda Wade Trial Testimony].
18
didn’t consider whether the Modification would be financially beneficial to Edell.41
She acknowledged that Edell received less money as a result of the Modification
and that it benefited herself and Johnny. 42 The payments dropped from $1,848 to
$1,200.43
B. The Evidence does Not Support that Edell was Represented by Counsel
in Both Transactions
27. It is undisputed that Amanda fired Edell’s long-time attorney Pat
Cavness – an attorney whom Edell was paying 44 – in the middle of negotiations
over the sale of the ranch in 2004. Amanda testified that “I did decide not to use
Pat anymore.” 45 She testified she recalled “he questioned the price.” 46 She
testified “I contacted Armbrust & Brown.” 47 Amanda testified further that she
never took Edell to the Armbrust & Brown offices in Austin and that no lawyer
from the firm came out to meet with Edell either.48 She testified that she paid the
legal fees for the Armbrust & Brown deal, and the communications from the firm
were directed to her, not to Edell. 49
41
SUPP RR: Vol. 3 of 6 at 135[Tab O, Amanda Wade Trial Testimony].
42
SUPP RR: Vol. 3 of 6 at 131, 138 - 139[Tab O, Amanda Wade Trial Testimony].
43
SUPP RR: Vol. 3 of 6 at 127, 138 – 139 [Tab O, Amanda Wade Trial Testimony].
44
CR: 383 [Tab Q, Pat Cavness File].
45
SUPP RR: Vol. 3 of 6 at 55:24 [Tab O, Amanda Wade Trial Testimony].
46
SUPP RR: Vol. 3 of 6 at 57:6-7 [Tab O, Amanda Wade Trial Testimony].
47
SUPP RR: Vol. 3 of 6 at 58:8 [Tab O, Amanda Wade Trial Testimony].
48
SUPP RR: Vol. 3 of 6 at 58:9-23 [Tab O, Amanda Wade Trial Testimony].
49
SUPP RR: Vol. 3 of 6 at 59 [Tab O, Amanda Wade Trial Testimony].
19
28. It is telling that Amanda fired Mr. Cavness, who had questions and
suggestions of his own in furtherance of Edell’s interests regarding the sale of the
ranch, and who also wrote a non-representation letter to advise Johnny and
Amanda that he represented Edell’s interests, not theirs. 50 It is also telling that, in
the next transaction spearheaded by Johnny and Amanda – the Modification – they
used an attorney who was happy to plug in the information that they fed him, and
who, despite having a unique file number for Edell he had used in previous legal
work for her, instead used a file number associated with Johnny and Amanda and
named them as the client. 51 Mr. Martin wrote to Johnny and Amanda that “we
have inserted the balance of $227,528.00, reduced the interest rate to zero, and
made the monthly payment $1,200 per Amanda’s phone call of the 28th.” 52
29. Mr. Martin clearly and repeatedly identified Johnny and Amanda as
the ‘client’ in the physical file he created at the time in 2009 and that he was paid
for his work on the Modification by Amanda Wade, not Edell Wade. 53 Michael
Martin testified he had considered the Modification a “joint project.” 54 He
acknowledged that communications on the Modification were sent directly to
50
CR: 363 [Tab Q, Pat Cavness File].
51
SUPP RR: Vol. 2 of 6 at 116:2-19 [Tab K, Martin Trial Testimony].
52
RR: Vol. 3 of 4 at 24 [Tab J, Martin & Millican File].
53
RR: Vol. 3 of 4 at 14, 15, 19, 21 [Tab J, Martin & Millican File]; and
SUPP. RR: Vol. 2 of 6 at 116:17 – 118:1 [Tab K, Martin Trial Testimony].
54
SUPP RR: Vol. 2 of 6 at 87:21-24 [Tab K, Martin Trial Testimony].
20
Amanda and that Amanda paid for the work.55 Mr. Martin could not have
provided Edell with independent counsel because he knew nothing about the
principal reduction: “I may not have remembered at that time that they even talked
about reducing the balance. And to this day I don’t know if or how much they
reduced it” and that he thought he was reducing the interest to zero. 56 “I really
didn’t know what was going on. It changed two or three times. I really didn’t
know and hoped that with the accountant they would work it out to where
everybody was happy,” and “I didn’t imagine they wanted my input.” 57 Mr.
Martin could not have provided any meaningful independent counsel because he
was not cognizant of the fact that a principal reduction was even occurring as part
of the Modification, much less in what amount.
C. The Evidence does Not Support that Edell Voluntarily, and with Full
Disclosure, Chose to Sell the Ranch and Chose to Reduce the Principal
in Connection with the Modification
30. Appellees have not produced any evidence that Edell wanted the
Modification, in particular the reduction in principal, other than self-serving
testimony from Johnny and Amanda. There is absolutely no evidence that Edell
Wade was aware at all of the principal reduction of around $40,000. The reliable
evidence supports the other view: the Modification that Edell signed stated on its
55
SUPP RR: Vol. 2 of 6 at 116:20 – 118:1 [Tab K, Martin Trial Testimony].
56
SUPP RR: Vol. 2 of 6 at 121:13 – 122:8 [Tab K, Martin Trial Testimony].
57
SUPP RR: Vol. 2 of 6 at 88:12-25 [Tab K, Martin Trial Testimony].
21
face in bold lettering that its “SOLE PURPOSE” was elimination of interest.58
Mr. Martin’s file entry on the matter stated that the note was to be modified for
either an elimination of interest or reduction of the principal. 59
31. Johnny’s self-serving testimony that he took his mother to Mr.
Martin’s office and left the room while they discussed it is (a) not confirmed by
Mr. Martin and (b) was never mentioned by Johnny or anyone else in prior
deposition testimony or other discovery conducted during the more than three
years leading up to trial.
32. Everyone involved in the Modification around the time it was
executed has testified ignorance as to the principal balance at the time. Johnny did
not know what the unpaid balance was at the time. 60 Amanda Wade testified that
she did not know where the modified principal amount came from or how it was
arrived at. 61 The testimony of Mr. Martin and Ms. Graham (Edell’s longtime
accountant) – the individuals who were in a position to ostensibly implement
Edell’s wishes – confirmed that neither of them were aware of a principal
reduction and they did not speak with Edell about a principal reduction.62 There is
58
RR: Vol. 3 of 4 at 39-46 [Tab L, Modification Agreement].
59
RR: Vol. 3 of 4 at 15 [Tab J, Martin & Millican File].
60
SUPP RR: Vol. 5 of 6 at 16:14 – 16 [Tab T, Johnny Wade Trial Testimony].
61
SUPP RR: Vol. 3 of 6 at 130:3-4, 134 – 135 [Tab O, Amanda Wade Trial
Testimony].
62
SUPP RR: Vol. 2 of 6 at 88:12-25, 121:13 – 122:8 [Tab K, Martin Trial Testimony];
SUPP RR: Vol. 3 of 6 at 8:6 – 9:20, 12:15 – 16, 12:2-3, 16:21 – 19:5 [Tab M, Lori
Graham Trial Testimony]; and
22
no viable way to look at the evidence and find that Edell Wade was provided with
full disclosure on the terms of the Modification when the principal reduction is not
stated on the document and the people involved did not even know what the actual
balance on the Note was, much less how much was reduced.
33. The Appellees assert that Edell was just like the decedent in Vogt v.
Warnock, who “had made the gifts (i) voluntarily, (ii) while competent and (iii)
after talking to an attorney.” See page 44 of Appellees’ Brief. In the instant case
there exists substantiated evidence only for competency, but as previously
outlined, not for the premise that the transactions were made by Edell voluntarily
and after talking to an attorney. While no one has disputed that Edell was of sound
mind, that does not mean she was not unduly influenced to enter into the
Modification, nor does it mean that Johnny and Amanda fulfilled their fiduciary
obligations of ensuring fairness and full disclosure in connection thereto.
34. Edell was increasingly isolated from the world after Johnny and
Amanda moved onto the ranch. Amanda testified that the gate to the ranch was
locked after 2005 and that no key was given to Bud or to his wife Gwen. 63 She
also testified that she had told the family that Edell could no longer host her
birthday parties at the ranch, despite the fact that family gatherings had
traditionally taken place at the ranch and despite the life estate they had ostensibly
RR: Vol. 3 of 4 at 3 [Tab N, Amanda Wade Note to Lori Graham].
63
SUPP. RR: Vol. 3 of 6 at 116 - 121 [Tab O, Amanda Wade Trial Testimony].
23
granted to Edell. 64 There was no evidence that Edell consulted with Lori Graham,
Michael Martin, or anyone else regarding the details of the Modification. As in
Jordan v. Lyles, “the record contains no evidence that [] anyone [] specifically
discussed” the transaction “and informed [her] of all material facts relating”
thereto. 455 S.W.3d 785, 795 (Tex.App.—Tyler 2015 n.p.h.).
35. Amanda herself testified that the Modification did not benefit Edell
financially, that it benefited herself and Johnny, and that she never thought about
its fairness. 65 Such testimony confirms that she did not fulfill her obligation to
ensure that the Modification was “fair and equitable” to Edell.
36. The evidence simply does not establish that Johnny and Amanda
complied with their obligations to (a) ensure the Modification was fair and
equitable to Edell, (b) make reasonable use of the confidence Edell placed in them,
(c) act in utmost good faith and exercise the most scrupulous honesty towards
Edell, and (d) place Edell’s interests above their own, not use their position to their
advantage or to gain any benefit at Edell’s expense, and not place themselves in a
position where their self-interest might conflict with their obligations as
64
SUPP. RR: Vol. 3 of 6 at 121 – 123 [Tab O, Amanda Wade Trial Testimony].
65
SUPP RR: Vol. 3 of 6 at 129 – 131, 135, 138 - 139 [Tab O, Amanda Wade Trial
Testimony].
24
fiduciaries. 66 They failed to produce evidence showing they fulfilled their duties;
and in fact the record establishes that they did not.
PRAYER
WHEREFORE, PREMISES CONSIDERED, James E. Wade prays that this
Court overturn the Summary Judgment Order and the Final Judgment in this case
and remand the case for a new trial. Appellant further prays for such other relief,
whether at law or in equity to which this Court deems he is justly entitled.
Respectfully submitted,
RICHIE & GUERINGER, P.C.
BY: /s/ Sheldon E. Richie
SHELDON E. RICHIE
State Bar of Texas No. 16877000
Email: srichie@rg-austin.com
EMILY J. SEIKEL
State Bar of Texas No. 24072331
Email: eseikel@rg-austin.com
100 Congress Avenue, Suite 1750
Austin, Texas 78701
512-236-9220 telephone
512-236-9230 facsimile
ATTORNEYS FOR APPELLANT
JAMES E. WADE
66
CR: 1539-1558 [Tab Y, Charge of the Court and Verdict].
25
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rules of Appellate Procedure 9.4, the undersigned
certifies Appellant’s Reply Brief complies with 9.4.
1. Exclusive of the exempted portions in Texas Rules of Appellate
Procedure 9.4(i)(1), Appellant’s Reply Brief contains 5,795 words.
2. Appellant’s Reply Brief has been prepared in proportionally spaced
typeface using Microsoft Word Version 2007 in Times New Roman
14 point.
3. The undersigned has provided an electronic version of Appellant’s
Reply Brief.
4. The undersigned understands a material misrepresentation in
completing this certificate, or circumvention of Texas Rules of
Appellate Procedure 9.4, may result in the Court’s striking
Appellant’s Reply Brief.
/s/ Emily J. Seikel
Sheldon E. Richie/Emily J. Seikel
26
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 26th day of August, 2015, a true and
correct copy of the foregoing was served as follows:
Counsel for Appellees
For Johnny Wade and Amanda Wade Individually
Kathryn E. Allen
Graves, Dougherty, Hearon & Moody
401 Congress Avenue, Suite 2200
Austin, Texas 78701
512-480-5651 Telephone
512-480-5851 Facsimile
kallen@gdhm.com Email
For Amanda Wade as Independent Executor
Claude E. Ducloux
Hill, Ducloux, Carnes & De La Garza
400 West 15th Street, Suite 808
Austin, Texas 78701
512-474-7054 Telephone
512-474-5605 Facsimile
cducloux@hdcdlaw.com Email
/s/ Emily J. Seikel
Sheldon E. Richie/Emily J. Seikel
27
NO. 03-15-00100-CV
IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
AT AUSTIN
IN RE THE ESTATE OF EDELL WADE, DECEASED.
JAMES E. WADE,
Appellant.
APPENDIX
28
TABLE OF CONTENTS 67
OF RECORD EXHIBITS ACCOMPANYING
APPELLANT’S BRIEF IN REPLY TO APPELLEES’ BRIEF
NO. TITLE OF DOCUMENT
Tab J. Martin & Millican File 68
Tab K. Michael Martin Trial Testimony 69
Tab L. Modification Agreement 70
Tab M. Lori Graham Trial Testimony 71
Tab N. Amanda Wade Note to Lori Graham72
Tab O. Amanda Wade Trial Testimony 73
Tab P. Amanda Wade Deposition Testimony (Excerpts) 74
Tab Q. Pat Cavness File75
Tab R. Statement by Judge Savage During Trial 76
Tab S. Nancy Burns Trial Testimony 77
Tab T. Johnny Wade Trial Testimony 78
Tab U. Bud Wade Trial Testimony 79
Tab V. Promissory Note 80
Tab W. Deed of Trust81
67
The Appendix to Appellant’s Brief is hereby incorporated herein by reference and, for
ease of reading, the instant Appendix begins with the next available Tab designation.
68
RR: Vol. 3 of 4 at 14-86
69
SUPP. RR: Vol. 2 of 6 at 78-131
70
RR: Vol. 3 of 4 at 39-46
71
SUPP. RR: Vol. 3 of 6 at 7-21
72
RR: Vol. 3 of 4 at 3
73
SUPP. RR: Vol. 3 of 6 at 22-230
74
CR: 407
75
CR: 347-387
76
SUPP. RR: Vol. 3 of 6 at 45
77
SUPP. RR: Vol. 2 of 6 at 7-77
78
SUPP. RR: Vol. 5 of 6 at 7-74.
79
SUPP. RR: Vol. 4 of 6 at 30-65.
80
RR: Vol. 3 of 4 at 58-66
81
CR: 86-100
29
NO. TITLE OF DOCUMENT
Tab X. Statements by Judge Savage During Summary Judgment Hearing 82
Tab Y. Charge of the Court and Verdict 83
82
RR: Vol. 2 of 4
83
CR: 1539-1558
30
NO. 03-15-00100-CV
IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
AT AUSTIN
IN RE THE ESTATE OF EDELL WADE, DECEASED.
JAMES E. WADE,
Appellant.
VERIFICATION
Before me, the undersigned notary, on this day personally appeared Emily J.
Seikel, the affiant, a person whose identity is known to me. After I administered
an oath to affiant, affiant testified:
1. "My name is Emily J. Seikel. I am over 18 years of age, of sound mind, and
capable of making this affidavit. I am an attorney for Appellant James E.
Wade. The facts in this affidavit are within my personal knowledge and are
true and correct.
2. "I certify and verify that I have reviewed the Appellant's Reply Brief and
concluded that every factual statement in the Reply Brief is supported by
competent evidence included in the appendix or record, and that the items
contained in the Appendix are accurate copies of documents from the Clerk
and Reporter's Records that are material to the Appellant's Brief.
~/) ~)~.
Emily J. SeikelJ
31
STATE OF TEXAS §
§
TRAVIS COUNTY §
SUBSCRIBED AND SWORN TO before me on this the 26th day of August
2015, to certify which witness my hand and seal of office .
. .~~"j!i:~1:f,~~;··.. M L STEVENSON Notary Public In and For State of Texas
{:!
'ui.'
0
\~ i
NOTARY PUBLIC
state of Texas
•.,,
\ 1 ;;;.....~+Y
"• •••iaf...." Comm. Exp. 06-20-2016
32
03-15-00100-CV
1 REPORTER'S RECORD
2 VOLUME 3 OF 4 VOLUMES
FILED IN
3rd COURT OF APPEALS
3 CAUSE NO: P9127/COURT OF APPEALS NO: 03-15-00100-CV
AUSTIN, TEXAS
3/18/2015 10:35:27 AM
4 IN THE MATTER OF IN THE COUNTY COURT
JEFFREY D. KYLE
Clerk
5 THE ESTATE OF AT LAW
6 EDELL WADE BURNET COUNTY, TEXAS
7
8
9
10
11 EXHIBITS
12
13
14
15
16 On the 11th day of April, 2014, the foregoing
17 proceedings came on to be held in the above-titled and
18 numbered cause before the HONORABLE RANDY SAVAGE, Judge
19 presiding at Burnet, Burnet County, Texas.
20 Proceedings reported by computerized stenotype
21 machine.
22
23
24
25
1
TAB J
RR VOL 3 OF 4 AT 14-86
Page 1 of 86
1 EXHIBIT INDEX
2 Plaintiff's Trial Exhibits:
3 NUMBER DESCRIPTION OFFERED RECEIVED VOL
4 7 Payments made (trial not transcribed)
5 9 Power of Attorney (trial not transcribed)
6 11 Modification Agreement (trial not transcribed)
7 38 File from Michael Martin(trial not transcribed)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2
TAB J
RR VOL 3 OF 4 AT 14-86
Page 2 of 86
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 14 of 86
WORK ORDER
ATTORNEY: ~M DATE: 4- I'I.- D'
Client: :;;:t=:(,. u"" '1---~..t.r..&?.c.._-=«._,.('-",_"!!J!fE-,___ __
0 Address: _ _ _ _ _ _ _ .....•. _ __ --- -- - -
Phone Numbers: Home _ _ _ _ _ _ BuslnoH: - - - - - - Other: _ __
File Name:
Fee Arrangement: - - - -
Date:
'-1-lt.-~_y_
_,·, ---;;; - ,--{ -
- . 7, •f '
(L
.-
. '- .,(.• ~:--!. \ i/ >f. (
.... t ''
L .' .. ·
- ; .(
·l{ I
.A
H
'-
~ "'
_,
l ?
-· -
0
---------- ·-- -..--------------- - - -- ·
- - - - - - -·- - - - ------ ---- . ---- - ________ _____.. _.. ... ....... -· ----- ., __ _
- - --- ----·---
----------------------..-·-- -- --- ..
- ·- - - -· --- ---------------
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 15 of 86
0 0 0
...
f
MARTIN, MILLICAN, HENDERSON & SHRUM
AITORNEYS AT LAW
512 EAST FOURTH STREET
LAMPASAS, TEXAS 76550
512/556-6228
Re: 16,163/MMM/Wade Date: January 31, 2012
Enclosed is original Record of Examination on Written Questions on the Wade matter.
MR EVAN STUBBS
ATTORNEY AT LAW
202 NORTH PORTER
LAMPASAS TX 765650
TAB J
RR VOL 3 OF 4 AT 14-86
Page 16 of 86
0
P.
1 1 * Conunica.tion Result Report ( Ja.n.25. 2012 1:59PM l 111 * *
~~ M.a.r t 1 t• & Mi I l i ~.,,.
Da.:e/Time: Ja.n. 25. 2~12 1:59PM
F. I e Pase
No. Mode Dest i na.t ion pg (s) Resul: Not Sent
9615 Memory TX 5568975 P. 4 OK
----------------------------------------------------------------------------------------------------
0
~
Reaaon for error
~: jl ~:":"~!.~r 1 ine f&i' t ~~
Bua!f
No •acai"' ' ' • connec~ion
li.5) E•c:eeded ma-.. E-m•ll ailte
-:=...---~=-~~="?:r=:-:::t:~
::-..::.~==:.::-.:::--=::.-:.., ........... .......
-=
_____ .. _,. _ _..."1_"'1_.
-...~ ........ - . . . . . . . . . JoMe ....
_ _...a...,_....
-· 0
Z:IIIZ'IIZ_,.
._,.
---
:al.lld'IIII-:J
..=----.......
-~­
,...
.U'WI
:puN
.
IIZZIHBI!:III ::1ND1W
_.__.'IN:IrTWI_
DllftLIU.__.,
·a HDII'1D.I .I.IIVll z:1o
MV'I~V IIAliNWO.U.V
IIWIWI'W 'EMI:JD'I 'I'«JJIJ
-- :w:u.v
MVl~"'~"'
-1\lai«I\J-- -
XY:I
0
. ..
TAB J
RR VOL 3 OF 4 AT 14-86
Page 17 of 86
Stuhh" 202 N. PORI ERST• • LAMPASAS, T EXAS 76550
.1\\ ( )ill~._~ c· PHONE: (512) !55&8970 • FAX: (512) 55&897!5
0 I' I I . < . www.stubbslawofllce.com
January 17. 2012
Mike Martin
Attorney at Law
512 E. Fourth Street
Lampasas, Texas 76550
VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED
70101870000175742990
Re: Estate of Edell Wade, Deceased; Cause No. P9127. in the CO\mty Court at
Law ofBmnct County, Texas
Dear Mike:
Enclosed you a Notice of Intention to Take Written Deposition directed to you.
Please forward the answers back to my office after answering before a Notary Public.
If you have any questions, please let me know.
0 ES/jjb
Encl: 1. Notice oflntention to Take Written Deposition ofMichae1 Martin
Cc: Amanda Wade
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 18 of 86
MARTIN & MILLICAJ
ATTORNEYS AT LAW
512 E FOURTH STREET
0 LAMPASAS, TEXAS 76550
(!512) 556-6228
(512) 556-8621
PAGENO 1
June 15, 2009
Account No. 16163-00
MR. & MS. JOHNNY WADE
REDACTED
REDACTED
REDACTED REDACTED
RE: MODIFICATION OF NOTE
HOURS
04/16/2009 OFFICE CONFERENCE WITH CLIENT 0.40 68.00
04/30/2009 TELEPHONE CALL TO LORI GRAHAM 0.03 5 .10
TELEPHONE CALL FROM CLIENT o.oe 10.20
05/06/2009 TELEPHONE CALL TO LORI GRAHAM 0.03 5 .10
0511312009 TELEPHONE CALL TO LORI GRAHAM 0.06 10.20
05/14/2009 TELEPHONE CALL FROM AMANDA WADE 0.03 5.10
05/26/2009 TELEPHONE CALL FROM AMANDA WADE 0.08 1020
PREPARED MODIFICATION AGREEMENT 125.00
0
06/15/2009 PREPARED LEn"ER TO CLIENT; COPY TO HOLDER 0.12 20.40
FOR CURRENT SERVICES RENDERED
--
0.79
- -
259.30
06/0212009 PAID TO BURNET CO. CLERK CK #18984 40.00
TOTAL EXPENSES 40.00
TOTAL CURRENT WORK 299.30
BALANCE DUE $299.30
Please Remit $299.30
THANK YOU
0
TAB J REDACTED
RR VOL 3 OF 4 AT 14-86
Page 19 of 86
0 0 0
)
MARTIN & MILLICAN
ATTORNEYS AT LAW
512 EAST FOURTH STREET
LAMPASAS, TEXAS 76550
5121556-6228
Re: 16, 163/MMM/Wade Date: June 15, 2009
Enclosed is original recorded Modification Agreement for your files. A copy has been sent to Johnny and
Amanda Wade.
...
MS EDELL WADE
REDACTED
REDACTED
1-
TAB J REDACTED
RR VOL 3 OF 4 AT 14-86
Page 20 of 86
0 0 0
MARTIN & MILLICAN
ATIORNEYS AT LAW
512 EAST FOURTH STREET
LAMPASAS, TEXAS 76550
512/556-6228
Re: 16,163/MMMJWade Date: June 15, 2009
Enclosed are copy of recorded Modification Agreement the original of which has been sent to Edell Wade
and your file regarding this matter which you left with us. Also enclosed is a bill for services. Thank you.
,...
MR AND MRS JOHNNY WADE
REDACTED REDACTED
REDACTED REDACTED
REDACTED
&..
TAB J
RR VOL 3 OF 4 AT 14-86 REDACTED
Page 21 of 86
BURNET COUNTY CLERK'S OFFICE
0 220 SOUTH PIERCE STREET
BURNET, TX 78611
512-756-5406
ISSUED TO: MARTIN & MILLICAN
RECEIPT#: 109611 DATE: 06/0912009 10:01:48 AM
DEPARTMENT:OPR WORK STATION: KGRIMES
DOCUMENT # PGS FEE
2009051.93 7
MOD 40.00
rm:mrrm
Total Amount Due 40.00
CHECK 1.8984 40.00
====-=====-=======--=====-==-~=---==-==
Total Amount Paid 40.00
0
THANK YOU
JANET PARKER
COUNTY CLERK
Deputy: KGRIMES
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 22 of 86
0 0 0
MARTIN & MILLICAN
ATTORNEYS AT LAW
512 E. FOURTH ST.
LAMPASAS, TEXAS 76550
5121556-6228
Re: FN: 16,163- MODIFICATION AGREEMENT/EDELL WADE/JOHNNY & AMANDA WADE June 2, 2009
Please record the above document and return to this office. We are enclosing our check #18984
in the amount of $40.00.
,..
Ms. Janet F. Parker
. . Burnet Co. Clerk
220 S. Pierce St.
Burnet, Tx 78611
TAB J
RR VOL 3 OF 4 AT 14-86
Page 23 of 86
0 MARTIN & MILLICAN
ATlORNEYS AT lAW
012 eAIS'I FOUimi8TREET
~ _TeXA&7MI50
. "'. . . .
MICHAELM. MARTIN 1ELS12~28
PATMiwcAN FAXS12-e5&8821
""!"'~!"--··
May26,2009
Mr. Johnny Wade
REDACTED
REDACTED
REDACTED
Re: Modification Agreement
Ale No. 16,163
Dear Johnny:
Enclosed yQU wm find the .Modlfk:ation Agreement on the nota to·your mother in which we
have Inserted the balance of$227 ,528.00, reduced the intereet rate to zero, and made the
monthly payment $1,200 per Amanda'a phone call of the 26". If this ia satiafactory, each
of you should sign as yoUr names are typed_, have notarized. and return-for recording with
the Burnet County Clerk. If you would like us to notarize, each/all ~fyou can come by with
the Modification and sign hera. Also enclosed ia an amortization achedult!J on the mocftfled
note. If you have any additional changes, please let me know. Thank you.
0 Sincerely yours,
Michael M. Martin
MMM:bp
Enclosures
0
TAB J
RR VOL 3 OF 4 AT 14-86 REDACTED
Page 24 of 86
•NO':'E FROM
JOHNNY WADE AND A~NDA WADE
0 •
T0 . EDELL WADE
PREPARED B'i:
~~RTIN & MILLICAN
ATTORNEYS AT LAW
512 EAST FOURTH ST.
LAMPASAS, TX 76550
Amount Loan Loan Firat Pmt
Borrowed Date Rate% Date nt Polnta
227,5211 ool 5113120091 o.ooool 81112ooel 1.20o.ool ,. '·· I
Interest Prine pal Principal Interest
It Date This Period This Period New Balance To Date
1 6/ 1/09 o.oo 1,200.00 226,328.00 0.00
2 7/ 1/09 0.00 1,200.00 225,128.00 0.00
3 8/ 1/09 0.00 1,200.00 223,928.00 0.00
4 9/ 1/09 o.oo 1,200.00 222,728.00 0.00
5 10/ 1/09 o.oc 1,200.00 221,528.00 0.00
6 11/ 1/09 0.00 1,200.00 220,328.00 0.00
7 12/ 1/09 0.00 1,200.00 219,128.00 0.00
Subtotal.: 0.00 8,400.00 219,128.00 0.00
e 1/ 1/10 0.00 1,200.00 217,928.00 o.oo
9 21 1/lO o.oo 1,200.00 216,728.00 0.00
10 3/ 1/::.0 o.oc 1,200.00 215,528.00 0.00
11 4/ 1/10 0.00 1,200 . 00 214,328.00 0 . 00
12 5/ 1/10 0.00 1,200.00 213,128.00 0.00
13 6/ 1/10 0.00 1,200.00 211,928.00 0.00
14 7/ 1/10 0.00 1,200.00 210,728.00 0.00
15 8/ 1/10 o.oc 1,200.00 209,528.00 0.00
16 9/ 1/10 o.oc 1,200.00 208,328.00 0.00
17 10/ 1/10 0.00 1,200.00 207,128.00 o.oc
18 11/ 1/10 0.00 1,200.00 205,928.00 o.oc
19 12/ 1/10 o.oo 1,200.00 204,728.00 o.oc
--------------------------------------------------------------------------------
0
Subtotal: o.oo 14,400.00 204,728.00 0.00
20 1/ 1/11 0.00 1,200.00 203,528.00 0.00
21 2/ 1/11 0.00 1,200.00 202,328 . 00 0.00
22 3/ 1/11 0.00 1,200.00 201,128.00 0.00
23 4/ 1/11 o.oo 1,200.00 199,928.00 0.00
24 5/ ) /11 0.00 1,200.00 198,728.00 0.00
25 6/ 1/11 0.00 1,200 . 00 197,528.00 o.oo
26 7/ 1/11 0.00 1,200.00 196,328.00 0.00
27 8/ 1/11 0.00 1,200.00 195,128.00 0.00
28 9/ 1/11 o.oo 1,200 . 00 193,928.00 0.00
29 10/ 1/11 0.00 1,200 . 00 192,728.00 o.oo
30 11/ 1/11 o.oo 1,200.00 191,528.00 0.00
31 12/ 1/11 0.00 1,200.00 190,328.00 0.00
--------------------------------------------------------------------------------
SubLoLa1: 0.00 14,400.00 190,328.00 0.00
32 1/ 1/12 0.00 1,200.00 189,128.00 0.00
33 2./ 1/12 0 . 00 1,;wo . oo 187,928.00 0.00
34 3/ 1/12 0.00 1,200.00 186,728.00 0.00
35 4/ 1/12 0.00 1,200.00 185,528.00 0.00
36 5/ 1/12 0.00 1,200.00 184,328.00 0.00
37 6/ 1/12 0.00 1,200.00 183,128.00 0.00
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 25 of 86
Intel. ~r:: Principal Princi~. Interest
u Date This Period This Period New Balance To Date
38 7/ 1/12 o.oo 1,200.00 :!.81,928.00 o.oo
0 39
40
4.1
42
8/
9/
10/
11/
1/12
1/12
1/12
1/12
0.00
0.00
0.00
0.00
1,200.00
1,200.00
1,200.00
1,200.00
180,728.00
179,528.00
178,328.00
177,128.00
0.00
0.00
0.00
0.00
43 12/ 1/12 0.00 1,200.00 175,928.00 0.00
--------------------------------------------------------------------------------
Subtotal: o.oo 14,400.00 175,928.00 0.00
44 1/ 1/13 0.00 1,200.00 1.74,7::!8.00 0.00
45 2/ 1/13 0.00 1,200.00 173,528.00 0.00
46 3/ 1/13 0.00 1,200.00 172,328.00 0.00
47 4/ 1/13 o.oo 1,200.00 171,128.00 0.00
'18 5/ 1/13 o.oo 1,200.00 169,928.00 0.00
49 6/ 1/13 0.00 1,200.00 168,728.00 o.oo
50 7/ 1/13 0.00 1,200.00 167,528.00 0.00
51 6/ 1/13 0.00 1,200.00 166,328.00 0.00
52 9/ 1/13 0.00 1,200.00 165,128.00 0.00
53 10/ 1/13 0.00 1,200.00 163,928.00 0.00
54 11/ 1/13 0.00 ],200.00 162,728.00 0.00
55 12/ 1/13 0.00 1,200.00 161,528.00 0.00
--------------------------------------------------------------------------------
Subtotal: 0.00 14,400.00 161,528.00 o.oo
56 1/ 1/14 0.00 1,200.00 160,328.00 0.00
57 21 1/14 0.00 1,200.00 159,128.00 0.00
58 3/ 1/14 0.00 1,200.00 157,928.00 o.oo
59 4/ 1/14 o.oo 1,200.00 156,728.00 o.oo
60 5/ 1/14 0.00 1,200.00 155,528.00 0.00
61 6/ 1/14 0.00 1,200.00 154,328.00 0.00
62 7/ 1/14 0.00 1,200.00 153,128.00 0.00
63 8/ 1/14 0.00 1,200.00 151,928.00 0.00
64 9/ 1/14 0.00 1,200.00 150,728.00 0.00
65 10/ 1/H 0.00 1,200.00 149,528.00 0.00
66 11/ 1/14 0.00 1,200.00 148,328.00 0.00
67 12/ 1/14 0.00 1,200.00 147,128.00 0.00
--------------------------------------------------------------------------------
Subtotal: 0.00 14,400.00 147,128.00 o.oo
68 1/ 1/15 c.oo 1,200.00 145,928.00 0.00
0 69
70
71
72
21 1/15
3/ 1/15
4/ 1/1!)
5/ 1/15
0.00
c.oo
c.oo
c.oo
1,200.00
1,200.00
1,200.00
1,200.00
144,728.00
143,528.00
142,328.00
141,128.00
0.00
0.00
0.00
o.oo
73 6/ 1/15 c.oo 1,200.00 139, 928.00 0.00
74 7/ 1/15 o.oo 1,200.00 138,728.00 0.00
75 8/ 1/15 o.oo 1,200.00 137,528.00 0.00
76 9/ 1/15 0.00 1,200.00 136,328.00 o.oo
77 lC/ 1/15 0.00 1,200.00 135,128.00 0.00
78 11/ 1/15 0.00 1,200.00 133,928.00 o.oo
79 12/ 1/15 0.00 1,200.00 132,728.00 0.00
--------------------------------------------------------------------------------
SubtotAl: o.nn 14,400.00 132,728.00 0.00
80 1/ 1n6 0.00 1,200.00 131,528.00 0.00
81 21 1/16 o.oo 1,200.00 130,328.00 0.00
92 3/ 1/16 0.00 1,200.00 129,128.00 0.00
83 4/ 1/16 0.00 1,200.00 127,928.00 o.oo
84 5/ 1/16 0.00 1,200.00 126,728.00 0.00
85 6/ 1/16 0.00 1,200.00 125,528.00 0.00
96 7/ 1/16 0.00 1,200.00 124,328.00 0.00
97 8/ 1/16 0.00 1,200.00 123,128.00 0.00
89 9/ 1/16 0.00 1,200.00 121,928.00 0.00
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 26 of 86
Intel. Jt E>rincipal Princi1--- Interest
.llfl Date This Period This Period New Balance To Date
89 10/ l/16 0.00 1,200.00 120,728.00 o.oo
0 90
91
Subtotal:
11/ 1/16
12/ 1/16
0.00
0.00
0.00
14,400.00
1,200.00
1,200.00
118,328.00
119,528.00
118,328.00
o.oo
0.00
0.00
--------------------------------------------------------------------------------
92 1/ 1/17 0.00 1,200.00 117,128.00 0.00
93 2/ 1/17 0.00 1,200.00 115,928.00 0.00
94 3/ 1/17 0.00 1,200.00 114,728.00 0.00
95 4/ 1/17 0.00 1,200.00 113,528.00 0.00
96 5/ 1/17 0.00 1,200.00 112,328.00 0.00
97 6/ 1/17 0.00 1,200.00 111,128.00 0.00
98 7/ 1/17 0.00 1,200.00 109,928.00 0.00
99 8/ 1/17 0.00 1,200.00 108,728.00 0.00
100 9/ 1/17 o.oo 1,200.00 107,528.00 0.00
101 10/ 1/17 0.00 1,200.00 106,328.00 0.00
102 11/ 1/17 0.00 1,200.00 105,128.00 0.00
103 12/ 1/17 0.00 1,200.00 103,928.00 o.oo
--------------------------------------------------------------------------------
Subtotal: 0.00 14,400.00 103,928.00 o.oo
104 1/ 1/18 0.00 1,200.00 102,728.00 0.00
10!:1 21 1/18 o.oo 1,200.00 101,528.00 0.00
106 3/ 1/18 o.oo 1,200.00 100,328.00 0.00
107 4/ 1/18 0.00 1,200.00 99,128.00 0.00
108 5/ 1/18 0.00 1,200.00 97,928.00 0.00
109 6/ 1/18 0.00 1,200.00 96,728.00 0.00
110 7/ 1/18 o.oo 1,200.00 95,528.00 o.oo
111 8/ 1/18 o.oo 1,200.00 94,328.00 o.co
112 9/ 1/18 0.00 1,200.00 93,128.00 0.00
113 10/ 1/18 0.00 1,200.00 91,928.00 0.00
114 11/ 1/18 0.00 1,200.00 90,728.00 0.00
115 12/ 1/18 0.00 1,200.00 89,528.00 0.00
--------------------------------------------------------------------------------
Subtotal: 0.00 14,400.00 89,528.00 0.00
116 1/ 1/19 0.00 1,200.00 88,328.00 o.co
117 2/ 1/l!) 0.00 1,200.00 87,128.00 0.00
118 3/ 1/19 o.co 1,200.00 85,928.00 0.00
119 4/ 1/19 0.00 1,200.00 84,728.00 0.00
0 120
121
], ?.2
123
5/
6/
7/
8/
1/19
1/19
1/19
1/19
o.co
0.00
0.00
0.00
1,200.00
1,200.00
1,:?.00.00
1,200.00
83,528.00
82,328.00
81,128.00
79,928.00
0.00
0.00
0.00
0.00
124 9/ 1/19 o.co 1,200.00 78,728.00 0.00
125 10/ 1/19 0.00 1,200.00 77,528.00 0.00
126 11/ 1/19 o.co 1,200.00 76,328.00 0.00
127 12/ 1/19 0.00 1,200.00 75,128.00 o.oo
--------------------------------------------------------------------------------
Subtotal: 0.00 14,400.00 75,128.00 o.oo
128 1/ 1/20 0.00 1,200.00 73,928.00 0.00
129 2/ 1/20 o.oo 1,200.00 72,728.00 0.00
130 3/ 1/20 0.00 1,200.00 71,528.00 0.00
131 4/ 1/20 0.00 1,200.00 70,328.00 0.00
132 5/ 1/20 0.00 1,200.00 69,128.00 0.00
133 6/ 1/20 0.00 1,200.00 67,928.00 0.00
134 7/ 1/20 o.oo 1,200.00 66,728.00 0.00
135 8/ 1/20 0.00 1,200.00 65,528.00 0.00
136 9/ 1/20 0.00 1,200.00 6(,328.00 0.00
137 10/ 1/20 0.00 1,200.00 63,128.00 0.00
138 11/ 1/20 0.00 1,200.00 61,928.00 0.00
139 12/ l/20 0.00 1,200.00 60,728.00 o.oo
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 27 of 86
Inte. t: Principal PrinciJ,. Interest
u Date This Period This Period New Balance To Date
..
. --------------------------------------------------------------------------------
0 Subtotal:
HO
H1
1/
2/
1/21
1/21
0.00 14,400.00
0.00
0.00
60,728.00
1,200.00
1,200.00
59,528.00
58,328.00
0.00
0.00
0.00
H2 3/ 1/21 o.oo 1,200.00 57,128.00 0.00
143 4/ 1/21 0.00 1,200.00 55,928.00 0.00
H4 5/ 1/21 0.00 1,200.00 54,728.00 0.00
H5 6/ 1/21 0.00 1,200.00 53,528.00 0.00
H6 7/ 1/21 0.00 1,200.00 52,328.00 o.oo
147 8/ 1/21 o.oo 1,200.00 51,128.00 0.00
148 9/ 1/21 0.00 1,200.00 49,928.00 o.oo
149 10/ 1/21 0.00 1,2CO.OO 48,728.00 0.00
150 11/ 1/21 0.00 1,200.00 47,528.00 0.00
15: 12/ 1/21 0.00 1,200.00 46,328.00 0.00
--------------------------------------------------------------------------------
Subtotal: 0.00 14,400.00 46,328.00 0.00
152 1/ 1/22 0.00 1,200.00 45,128.00 0.00
153 21 1/22 0.00 1,200.00 43,928.00 0.00
154 3/ 1/22 0.00 1,200.00 42,728.00 0.00
155 4/ 1/22 0.00 1,200.00 41,528.00 0.00
156 5/ 1/22 0.00 1,200.00 40,328.00 o.oo
157 6/ 1/22 0.00 1,200.00 39,129.00 0.00
158 7/ 1/22 0.00 1,200.00 37,928.00 0.00
159 8/ 1/22 0.00 1,200.00 36,728.00 0.00
160 9/ 1/22 o.oo 1,200.00 35,528.00 0.00
161 10/ 1/22 0.00 ::..,200.00 34,329.00 0.00
162 11/ 1/22 0.00 :,200.00 33,129.00 0.00
163 12/ 1/22 0.00 1,200.00 31,928.00 0.00
--------------------------------------------------------------------------------
Subtotal.: 0.00 14,400.00 31,928.00 0.00
164 1/ 1/23 o.oo 1,200.00 30,729.00 0.00
165 2/ 1/23 0.00 1,200.00 29,528.00 0.00
166 3/ 1/23 0.00 1,200.00 28,328.00 o.oo
167 4/ 1/23 o.oo 1,200.00 27,128.00 0.00
168 5/ l/23 o.oo 1,200.00 25,929.00 0.00
169 6/ 1/23 0.00 1,200.00 24,728.00 o.oo
170 7/ 1/23 0.00 1,200.00 23,528.00 0.00
0 171
172
173
174
6/
9/
10/
11/
1/23
1/23
1/23
11'3
0.00
0.00
0.00
0.00
1,200.00
1,200.00
1,200.00
1,200.00
22,328.00
21,128.00
19,928.00
18,728.00
0.00
0.00
o.oo
0.00
1'7!) 12/ 1/23 0.00 1,200.00 17,528.00 o.oo
--------------------------------------------------------------------------------
Subtotal: 0.00 14,400.00 17,528.00 c.oo
176 1/ 1/24 0.00 1,200.00 16,328.00 0.00
177 ')/ 1/24 0.00 1,200.00 15,128.00 0.00
l. "/8 3/ 1/24 0.00 1,200.00 13,928.00 0.00
179 IJ/ 1/24 o.oo 1,200.00 12,728.00 0.00
160 5/ 1/24 0.00 1,200.00 11,528.00 o.oo
161 6/ 1/24 0.00 1,200.00 10,329.00 0.00
182 7/ 1/24 0.00 1,200.00 9,128.00 o.oo
183 8/ 1/24 0.00 1,200.00 7,928.00 o.oo
18< S/ 1/24 0.00 1,200.00 6,728.00 0.00
185 1C/ 1/24 0.00 1,200.00 5,528.00 0.00
186 11/ 1/24 0.00 1,200.00 4,328.00 0.00
187 12/ 1/24 0.00 1,200.00 3,128.00 0.00
--------------------------------------------------------------------------------
Subtotal: 0.00 14,400.00 3,128.00 0.00
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 28 of 86
Inte:L -t Principal PrinciJ..-- Interest
H Date This Period This Period New Balance To Date
,i .
188 1/ 1/25 0.00 1,200.00 1,928.00 0.00
189 2/ 1/25 0.00 1,200.00 728.00 0.00
190 31 1/25 0.00 728.00 0.00 0.00
Subtotal: 0.00 3,128.00 o.oo 0.00
Final payment amount: 728.00
Tota.!. payments: 227,528.00 Principal: 227,528.00 Interest: 0.00
SetLings: 360 Arr PrePd 1950 12 perYr
0
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 29 of 86
0 0 0
MARTIN & MILLICAN
ATTORNEYS AT LAW
512 EAST FOURTH STREET
LAMPASAS, TEXAS 76550
512/556-6228
Re: 16, 163/MMM/Wade Date: May 13, 2009
Enclosed is draft of proposed Modification Agreement. Please look this over carefully and let me know if
changes are needed. If it is correct as it stands you may bring it by the office to sign and have notarized.
,...
MR AND MRS JOHNNY WADE
REDACTED
REDACTED
TAB J REDACTED
RR VOL 3 OF 4 AT 14-86
Page 30 of 86
N0'11E: rROM
,JOHNNY "ADE ~D AMANDA WADE
TO E:DE:LL WA:lE
(
0 PR1'.PARED BY:
MAR?IN & MILLICAN
ATTOR:-.IEYS AT lAW
0.12 k:AS'f FO"JR'IH ST. --.. I
l.Af\IPASAS, TX "165':>0
., Amount
Bonowed
soo.oooool
lHI
LOan
Date
Date
21tl20081
.
Loan
~
o.o:zaof
Interest
This Period
Flliii Pint
Dale
:vtl2008!
iDf
Pcia
Pr1.ncipa1
This Period
:rnl
:=;Pmi
'lerwn•l =
Pr1nc pal
New Bal.ance
t!J
.,.._.
1.1141. 1~
nterest
To Date
Palnt8 APR%
1 J/ 1/06 8.33 1,839.77 498,160.23 8.33
2 41 1106 8.30. 1,839.80 496,320.43 16.63
j ':>I .l/06 8.27 1,839.83 494,480.60 24.90
4 6i l/06 8.24 1,839.86 492,640.74 33.14
5 ., '
• I 1/06 8.21 1,839.89 490,800.85 41.35
6 81 1/06 9.18 1,839.92 .,85,960.93 49.53
7 91 1106 !!.15 1,839.95 487,120.98 57.68
8 : OI 1/06 6 .12 1,839.98 485,281.00 65.80
9 :11 1/06 8.09 1,840.01 483,440.99 "73.89
10 "?/ l/C6 8.06 1,840.04 481,600.95 81.95
Subt otal: 81.9S 18,399.05 481,600.95 61.9!)
ll l/ 1107 IL03 1,840.07 479,760.88 89. qa
12 2/ 110 "1 t!.OO 1,840.10 477,920.78 97.98
1.3 3 / lt0 7 i . 97 1,840.13 476,080.65 10':> . 95
14 .j/ 1/07 7.93 1,840.17 474,240.48 1:3.88
15 5/ 1/07 7.90 1,840.20 472,400.28 121.78
16 6/ 1/07 7.87 1,840.23 470,560.05 129.65
17 7/ 1/07 7.84 1,840.26 468,719.79 137.49
18 8/ 1/07 7.81 1,840.29 466,879.50 145.30
19 9/ 1/07 7.78 1,840.32 465,039.18 153.08
20 :ot 1/07 7.75 1,840.35 463,198.83 160.83
:.n
0
~ 1/ li07 7.72 1,840.38 461,358.45 168.55
22 :21 l/0"1 7.69 1,840.41 459,518.04 1"76.24
--------------------------------------------------------------------------------
Su:::-t:otal: 94.29 22,082.91 45!:t,!J18.04 116.24
2 ., l/ 1/08 7.66 1,840.44 . 457, 677. 60 183.90
24 2/ l/08 7.63 1,840.47 455,837.13 191.53
25 3/ 1/08 .,7.60 1,840.50 453,996.63 199.13
4/ 1/0il .57 1,840.53 206.70
7.6
~7 5/ l/08 ., .54 1,840.56
452,156.10
450,315.54 2:4.24
28 6/ l/08 "! .51 1,840.59 448, •174. 95 221.75
29 7/ 1/08 "7.47 1,840.63 446,634.32 229.22
~() P.l 1/08 ., .44 1,840.66 444,793.66 236.66
.-
31
_,
13
'ill 1108
~I)/
:11 1/08
l/08
7.41
i • jf:l
.,, .35
1,840.69
1,840.72
1,840.75
·441. 952. 9":'
441,112.25
439,2"11.50
?44.07
2!>1.45
<1~8.80
·1·1 i.21 1/08 ·1. 32 1,840.78 437,430.72 266.12
--------------------------------------------------------------------------------
S'.&01:.otal; B9.e8 22,087.32 437,430.72 266.12
35 1/ 1/09 7.29 1,840.81 435,589.91 273.41
36 21 lt09 "'.26 1,840.84 433,749.07 280.67
37 3/ 1/09 7.23 1,840.87 431,908.20 287.90
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 31 of 86
..
;a
.,
4/ 1/09
Date
lnter 396,925.84 419.44
~~ 11/ 1/10 6.62 1,841.48 395,084.36 426.06
!:8 12/ 1/10 6158 1,841.52 393,242.84 4 32.64
--------------------------------------------------------------------------------
Subtot:al: 91.05 22,096.15 393,242.84 432.64
!:9 1/ 1/11 ti.55 1, 841.55 391,401.29 439.19
f(l 21 1/11 6152 1,841.59 389,559 •.71 445.71
1:-! .j/ 1/ll 6.49 :,841.61 387,718.10 452.20
62 II/ 1/ll 6. 46 1,841164 385,876.46 ol:::>l:l.6b
63 51 1/11 6.43 1,841167 384,034.79 4 65109
64 6/ 1/11 6. 40 :.,841.70 382,193.09 471.49
65 7/ 1/11 6.37 1,841173 380,351.36 47'7.86
1>6 R/ 1/ll 6134 1,841.76 378,509.60 484.20
t· r ~I 1/ll 6.31 1,841179 376,667.81 490 I '51
68 10/ 1/11 6~28 :i.,841~82 3"'14,825.99 4!:J6~79
6;) 11/ 1/11 6.25 :.,841185 372,984.14 503.04
"70 1:t:/ 1/11 6.22 ::.,841.89 371,142.26 509.26
--------------------------------------------------------------------------------
0 Suht o ~ a 1 :
'11
·;:! ~I
76162
l / 1/12
1/12
22,100.58
6119
6.16
:I 841 I 91
:, 841.94
371,142~26
509.26
369,.300.3.5
367,458.41
515.45
521.61
'i3
14
"/!'I ..
3./ 1/12
4/ 1/12
_,, 1/12
6.12
6.09
6.06
::.,841.98
:,842101
:,842104
365,616.43
363,'174.42
361,532.38
527.73
533.82
539.88
,...,
/b 6/
7/ 1/12
l/1;! .;. 03
6.00
:,842107
:,842.10
360,090.31
358,248.21
54!>.91
!:>~ : ~!H
78 e1 1/12 !:.197 :.,842~13 356,406.08 557. 8R
·;g 9/ 1/12 5194 ::.,842~16 354,563.92 563.82
EO 10/ 1/12 5. 91 :,842~19 352,721.73 569.73
F.~ 11/ l/12 5.88 :,842~22 350,879.51 575.61
E2 1~1 1/12 5.85 :,842125 349,037.26 5A1.46
--------------------------------------------------------------------------------
5'-JbtO!:.:ll! 72.20 22,105.00 349,037126 581.1)6
c3 1/ 1/13 5182 ,842129 347, 194.98 597.28
E4 21 1/13 5179 ,842131 345,352.67 f>93107
F.~- 3./ 1/13 ~} • ., 6 ,842.34 343,510.33 598.83
Eb 4/ 1/l:J ':>. 13 ,842137 341,66'1.96 6:l4.5E
E"l 5/ 1/13 5169 ,842.41 33~,525.55 610.25
68 6/ 1/13 5166 ,842~44 337,983111 615.91
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 32 of 86
·-·---- - ··· ·--··-··
InterL __ Principal Principo- Interest.
tl Date I'his Period This Period New Bal.ance To Date
89 7/ 1/13 5.63 1,Q.42.47 336,140.64 621.54
0 90
91
92
93
8/ 1/13
9/ 1/13
0/ 1/13
l l 1/lJ
5.60
5.57
5.54
~. . 51
1,842.50
1,842.53
1,842.56
1,842.59
334,298.14
332,455.61
330,613.05
328,770.46
627.14
632.71
638.25
643.76
9" 21 1/13 ~-49 1,842.62 326,927.84 649.24
--------------------------------------------------------------------------------
S:J.b::.ota.:.: 67.78 22,109.42 326,927.84 649.24
95 1/ 1/14 5.45 1,842.65 325,085.19 654.69
9E 21 1/14 5.42 1,842.68 323,242.51 6GO.ll
97 3/ 1/14 5.39 1,842.71 32:.,399.80 665.50
96 41 l/14 5.36 1,842.74 319,557.06 670.86
99 51 1./H 5.33 1,842.77 317, 71."4 .29 676.19
l.OO 6/ :/14 5.30 1,842.80 315,871.49 681.49
101 11 :.114 5.26 1,842.84 314,028.65 686.75
102 8/ :/14 5.23 1,842.87 312,185.78 691.98
103 9/ :/14 5.20 1,842.90 310,342.88 697.18
104 10/ : /14 !l.17 1,842.93 308,499.95 702.35
105 111 :./14 !).14 1,842.96 306,656.99 707.49
106 12/ :/111 5.11 1,842.99 304,814.00 712.60
--------------------------------------------------------------------------------
Subtotal: 63.36 22,113.84 300,814.00 7:2.60
107 1/ l/15 5.08 1,843.02 302,970.98 717.68
lO!l 2/ l/15 5 . 05 1,843.05 301,12'7.93 722.73
.1C9 31 :t15 •;.o2 1,843.08 299,284.85 727.75
110 Ill l/1!:> 4.99 1,843.11 297,441.74 732.74
111 5/ !/15 4.96 1,843.14 295,598.60 73'7.70
112 6/ l/15 .; .93 1,843.17 293,755.43 742.63
113 7/ 1/15 4. 90 1,943.20 :<91,912.23 7iJ7.53
114 81 1/15 4.a7 1,843.23 290,069.00 752.40
115 91 1/15 4.83 1,843.27 :088,225.73 757.23
116 10/ 1/15 4.90 1,843.30 :;:86,382.43 762.03
117 HI 1/15 4.77 1,843.33 284,539.10 766.80
!1& 12/ 111~ 4.74 1,843.36 :282, 69_5-. 74 77:.54
--------------------------------------------------------------------------------
Subto-::..:11: 58.94 22,118.26 282,695.74 771.~4
!19 !I 1116 4. 71 1,843.39 280,852.35 776.25
0 120
1;; 1
122
14?3
21 1116
31 1116
41 1/16
'll 1/lE
4. 68
4.65
4.6?.
4.~9
1,843.42
1,843.45
1,843.48
1,843.51
279,008.93
277,165.48
275,322.00
27 .' 3,478.49
780.93
785.58
790.20
794.79
l:Z~ 6.f 1116 •1.56 1,843.54 2"11, 634.95 799.:35
125 7t 1/1€ 4.53 1,843.57 269,791.38 803.88
1.i6 61 1/16 lj.50 1,843.60 267,947.78 808.38
12':' 9/ 1/1€ ·1. 47 1,843.63 266,104.15 812.85
1<:8 lOi 1/16 -1.44 1,843.66 264,260.49 817.29
I~ rf 11/ 1/H 4.40 1,843.70 262, 4J.6. 79 821.69
uo 12/ 1/16 4.37 1,843.73 260,573.06 826.06
--------------------------------------------------------------------------------
Subtotal: 54.52 22,122.68 826.06 260.~73.06
131 l i 1/1'7 ·4. 34 1,8~3.76 258,729.30 830.<10
u.o: 21 1117 4.31 1,9.(.3.79 256,885.51 834.71
U3 3/ l/17 4.28 1,8.(.3.82 255,041.69 838.99
134 4/ 1/17 4.25 1,8.(.3.85 253,197.84 843.24
1\!'> 5/ 1/17 4. 22 1,843.88 251,353.96 647, "4 6
136 Ei 1/17 .:.19 1,843.91 249,510.05 851.65
137 7/ 1/~7 4.16 1, 84 3. 94 247,666.11 855.81
136 9/ 1/17 4.13 1,643.97 245,822.14 859.94
139 9/ 1/17 1.10 1,844.00 243,978.14 664.04
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 33 of 86
Ir.ter~ - Principal Pri.nci.p.. _ Interest
u Cate This Period This Period New Balance To Date
1.4C 10/ 1/17 ·L07 1,84<.03 242,134.1". 868. 1l
0 141
142
S..1btotal:
11/ l/17
12/ 1/17
50.0~
4.04
4.00
1,84,.06
1, 844 .10
22, 127. 11
240,290.0~
238,445.95
------------------~-------------------------------------------------------------
238,44~.95
872.1!:
876.15
876.15
14~ 11 l/18 .'3.97 1,844.13 236, 6.,1. 82 880.12
144 21 1118 3.94 1,844.16 234,757.66 884.06
145 31 1118 3.91 1,844.19 232,913.47 887.97
14f:> 41 1/llt 3.8e 1,844.22 231,069.25 891.8!:
141 5/ 1il8 3.85 1,BG4.25 229,225.00 895.70
148 61 1/18 3.82 1,844.28 22"1,380.72 89~. 52
149 11 1/18 3.79 1,844.31 225,536. u 903.31
15C 8/ 1/18 3. 76 1,844.34 223,692.07 907.07
1!)1 9/ 1/18 3.73 1,844.37 221,847.70 910.80
152 10/ 1/18 3.70 1,844.40 220,003.30 914.50
153 111 1118 3.67 1,844.43 218,158.87 918.1 i
154 12/ 1/:8 J.E4 1,844.46 216,314.41 921.81
--------------------------------------------------------------------------------
Subtotal: 45.6& 22,131.!34 2:6,314.41 921.81
155 11 1119 J.El 1,844.49 214,469.92 925.42
156 21 1119 3.51 1,844.53 212,625.39 928.99
15·; 3/ 11B 3.54 1,844.56 210,780.83 932.53
158 41 1113 .L51 1,844.59 208,936.24 936.04
15c;t 51 1113 J.4& 1,844.62 207,091.62 939.52
16C 6/ 1/19 .l. 45 1,844.65 205,246.97 942.97
1 61 71 1/19 3.42 1,844.68 203,402.29 946.39
16~ '3/ l/19 ' · ~q 1.,844.71 201,557.58 949.78
l& ",; 9/ 1/19 .l. 36 1,844.74 199,712.84 953.14
164 1:.11 1/13 L33 1,844.77 197,868.07 956.47
l6S. 11/ 1119 3 . 30 1,84<4.80 196,023.27 959.77
166 121 1/19 3.27 1,844.83 194,178.44 963.C4
--------------------------------------------------------------------------------
Su.Cto-r.al: 41.23 22,135.97 194,179.44 963.04
167 1/ 1/2::> 3.24 1,844.86 192,333.58 966.28
166 21 1/2::> :3.21 1,844.89 190,488.69 969.4 9
169 3/ l/2:> .3.17 1,844.93 188,643.76 972.66
17C 4/ 1/2':) ~.H 1,844.96 186,798.80 975.80
0 17l
... .
1-~
173
174
'51 l/7.::>
&I 1/:ZJ
1.1 1/2')
8/ l/20
"1.1]
.LC8
3.05
3.02
1,844.99
1,845.02
1,845.05
1,845.08
184,953.81
183,108.79
18:,263.74
179,418.66
976.91
981.99
985.C4
988.06
175 9/ l/20 2.99 1,845.11 177,573.55 991.05
1/6 10/ 1/2::> ;!.96 1,845.14 175,729.41 994.01
177 111 1/20 2.93 1,845.17 173,893.24 9~6.9<4
178 12/ 1/20 2.90 1,845.20 172,039.04 999.84
--------------------------------------------------------------------------------
Subtotal: 36.80 22,140.40 172,038.04 999.84
179 11 1/?.1 ~·. 117 1,845.23 170,192.81 1,002.71
11;((• 21 1/21 2.E< 1,84!1.26 168,347.55 1,005.55
191 31 1/21 :,. .. 6! 1,64~.29 166,502.26 1,008.~6
1.8.:: •II 1/21 .: • "78 1,845.32 164,656.94 1,011.14
183 5/ :i./21 2 . 71. 1,845.36 162,311.58 1,013.1:?8
184 6/ 1/21 2 .. .,1 1,645.39 160,966.19 1,016.~9
185 7 1 1/21 2. 68 1,645.42 159,120.77 1,019 • .:1
166 8/ 1/21 :;:.65 1,845.45 157,275.32 1,021.92
187 91 1121 2.62 1,E45.48 155,429.84 1,024.54
185 101 1/21 2.59 1,645.51 153,584.33 1,027.13
189 11/ 1/21 2.56 1,845.54 151,738.79 1,029.69
190 121 1121 2.53 1,845.57 149,893.22 1,032.22
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 34 of 86
.lnte:z: _ . ~ Pri.ncipa1 Princi.p..... Interest
Ill Da't:e This Period Thia Per.!.od New Balance To Date
--------------------------------------------------------------------------------
0 5ubtot:al:
19:
192
32.38
1/ 1/22
1/22
.&.I
22,144.82 l49, 893.22
2.50
2.47
1,032.22
:;.,845.60
:,845 . 63
148,047.62
146,201.99
1,03"1.72
1,037.19
193 3/ 1/22 2.44 :,845.66 144,356.33 1,039.63
194 .J/ 1/22 2.41 :,845.69 142,510.64 1,042.04
195 5/ 1/22 2."38 : ,845.72 141), 664.92 1,044.42
196 6/ 1/22 2 . 3,4 :,845.76 138,819.16 1,046.76
197 i l 1/22 2.31 :,845.79 136,973.37 1,049.07
19a E/ 1/22 2.28 :,845.82 135,127.55 1,051.35
199 9/ 1/22 2.25 1 ,845 . 85 133,281.70 1,053.60
200 10/ 1/22 2.22 :,845.88 131,435.82 1,055.82
z··,· 11/ 1/22 2.19 :,845 . 91 123,589 . 91 1,058.01
202 1:2 22,1!>3.68 :o!>,!>90.29 l,083.b9
.21:
216 -1/. 1/2.;
""' l/24
l . 76
l . 73
:.,946.34
: ,946 . 37
103,743.95
101,897.50
l,oas.45
1, 097.18
21"1' 3/ l /24 1. 70 1,846 . 40 100,051.18 1,068.88
21!1 4/ 1/ 2 4 :.67 :,846.43 98,204.75 1,090.55
219 !>I 1/:.t.: l . 64 :,846 . 46 96,358 , 29 1,092.19
....... -_
2~C
"') ,
6/ 1/2<:
7/ 1/2-i
::..61
1.58
:,946.49
:,846.52
94,.!:11.80
92,665.28
1,093.80
1,095.38
0 22.2
2 ::: 3
224
:.2.;;5
e/ 1/24
9/ 1/2.;
10/ 1/24
11/ 1/4!-'
l. 54
1. 51
1.48
l. 4!>
: ,846.56
1,846.59
: ,846 . 62
l,84ti.65
90,618.72
88,972.13
87,125.51
8:>,278.86
1,096.92
1,098.43
1, 09~. 91
1,1:>1.36
2~6 1~/ 1 / 24 l. 42 :,946.68 83,432.18 1,1:>2.78
--------------------------------------------------------------------------------
Subtotal: 19.09 22,158.11 83,.;32.18 1,102.7:3
=~2-, 1/ 1./7.5 1.~9 :,846.71 81,585.47 1,1:>4.17
2:0:8 ".e. I 1/2!> 1. 36 l ,846.74 79,738.73 1,1.)!'>.'>3
229 3/ 1/25 1.33 1,946.77 77,891.96 1,1:>6.86
2~0 4/ 1/25 1. 30 :,846.80 76,045.16 1,108.16
2.3: 51 1/25 1.27 :,946.83 74,198.33 1,1:>9.43
232 6/ 1/25 1. 24 :,846 . 86 72,351.47 1,110.67
233 -,/ 1/2!'> 1.21 :,946.89 70,504.58 1,111.88
2 .H E/ 1/:<5 l •. lB :.,846.92 68,657.66 1,113.06
235 91 1/25 1.14 :,IJ46.9& 66,810. "/0 1,114.:.!0
236 1 C/ l/25 1.11 :,946.99 6-1,963.71 1,115.31
237 11/ 1/25 ]. 08 :,847.02 63,116.69 1,116.39
238 1~ I 1/25 1.05 :,947.05 61,269.64 1,117.44
--------------------------------------------------------------------------------
5ubt<:>t: a.l: 14 . 66 22,16:! . 54 61,:!69.64 ],117.44
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 35 of 86
:nte:.-~t Principal Principa.1.. Interest
Date This Period This Period New Balance To Date
• 239 1/ 1/2€ ~. 0-' 1,847.08 59,422.56 1,118.46
0 240
241
242
243
2.1 1/:.i!E
3/
4/
5/
l/26
1126
1/26
·: . i:O~
('.96
0.93
0.90
1,847.11
1,847.14
1,847.17
1,. 847.20
!17,575.45
55,728.31
53,881.14
52,033.94
1,119.45
1,120.41
1,121.34
1,122.24
244 6/ l/26 C.87 1,847.23 50,186.71 1,123.11.
245 1/ l/26 0."84 1,847.26 48,.339.45 1,123.95
246 6/ l/2f G.Sl 1,847.29 46,492.16 1,124.76
2.4 7 9J l/26 (';. 77 1,847.33 44,644.83 1,125.53
248 10/ l/26 C.74 1,847.36 42,797.47 1,126.27
249 11/ l/26 ('.71 1,847.39 40,950.08 1,126.98
250 121 1nt: C.Gil 1,847.42 39,102.66 1,127.66
Subtotal: 10.22 22,166.98 39,102.66 1,127.66
25~ 1/ l/27 0.65 1,847.45 37,255.21 1,128.31
252 21 1/27 (•. 62 1,847.48 35,407.73 1,128.93
253 3/ l/27 0.59 1,847.51 33,560.22 1,129.52
254 4/ :/27 n.so 1,847.54 31,712.68 1,1.30.08
;.;s!:> ':>/ l/'2"i 0.:03 1,847.57 29,865.11 l,J.l0.61
256 6/ 1/27 C'.5.:l 1,847.60 28,017.51 1,1.31.11
257 7/ 1;2 : 0.•17 1,847.63 26,169·. 88 1,1.31.58
258 8/ l/27 .~ . 44 1,8!17.66 24,322.22 1,132.02
259 9/ 1/27 o:·. 41 1,847.69 22,474.53 1,132.43
260 lCJ/ l/27 o.:n 1,847.73 20,626.90 1,132.80
26: 11/ 1/2 7 0.34 1,847.76 18,779.04 1,133.14
262 12/ 1/27 0.31 1,847.79 16,931.25 1,133.45
~ub•. ot-a1: 5. 79 22,171.41 16.931.25 1,133.45
2 63 1/ 1/2F. •·1. 2S 1,847.82 15,083.43 1,133.73
264 21 1/28 .:•.25 1,847 . 85 13,235.58 1,133.98
265 31 1/211 0 .22 1,847.88 11,387.70 1,134.20
.266 •1/ 112e 0.19 1,847.91 9, 539.79 1,13<.3~
267 5/ 1/2€ (). 16 1,847.94 7,691.85 1,134.55
26B 6/ 1/2E 0.:3 1,847.97 5,843.88 1,134. Ga
2tj~ ,, 112e
-' •' . 1 ::> 1,848.00 3,995.88 1,1:;4.78
2-:'0 8/ l/2E ~.. . 07 1,848.03 2,147.85 1,1"34.85
271 9/ l/28 0.04 1,848.06 299.79 1,134.89
272 10/ 112e 0.0::> 299.79 o.oo 1,134.83
0 ~ub<:.otal:
Final payment amount:
l. 44 :6,931.25
299.79
0.00 1,134.89
Total paymont.::: !>01,13·1.89 Principal: 500,000.00 Interest: 1,:34.!39
Sett.lngs: 360 A:rr Prel?o·J 1950 :2 perYr
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 36 of 86
I ~ei
I
~i~
•
.. --·-.
. -·+·· · ··--±---·-+ ·-···-
1
!
----r·-·----- - - -
+--- ..,. ----
' ;- :l ~_,_-~~~LL: f jI
.. - l! . . : --~.. - f ... ...
0 1 - t ......... 1
---+·--·--
I L.L. I ,, . ___,____l--+--.J,.___--+-~
l
!I i
I . :.·,. ,.~
!. ' ""'
I I
,_
J l. ;, t~-
-,L~:-~- -;~-----~----· -- -
l~ . t. \ ~'
~ ~~ ~ .,.. _)_ ____t - -· ·- ·- --
~ ~ . ~
00· - ~ ··- ~- ~
" '' ... . !
"'r
~~
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i< "'-
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=~.:y
~
• < -----·-- ------+----,... -----r------------,-------------- -------
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I: ~ ~ -"·--.,. ••" r
. I ., 7
-------..,....- - - -
::! :.: ~ ~ ---·,.-·-;:-·-~·-----..,,..--=!'.---=:r:=---=.:-.- : ~: -:--:..3.:_;-~
~ ~ ..
~
0 ....
. !!.
, 1 I
-- - - -·--- - - - - - - ---------'---+---+---:-------- a:
.i 8~
;5 p
-0
g
'/ ~
-:----r---r---:----- - - - - - - - - - - - - - - - : -
1
II -: :
I ·----~-----!---1
j . • . • - . f
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.
:. ; •~ ! . ' . .. ~~ -· - . •· -· . --·---·-· -----·- - ··-· ...
-j
u
:1·l·!i~ r:.j~-=·-+--+--:---r--r-----r--t------r---+---:!1
I
l---L__. .. .
~ -~----+---- 1 ... r .. . ... -
0 ~
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,-----+ ·-- ~ ----~
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-~
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l:;;<~
,.,. -
E:,:'. :
--:.
&oW
0
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!
7
11li
;.i
..., ~, ~~!
. '-.,.1 ~. n
li
:;:: . · ":s' . ~
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5
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e
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 37 of 86
;_, .
M ARTIN & MILLICAN
ATTORNEYS AT LAW
512 E FOURTH STREET
0 LAMPASAS. TEXAS 76550
(512) 558-6228
(512} 556-8621
PAGE NO 1
June 15, 2009
MR. & MS. JOHNNY WADE Account No. 16163-00
REDACTED
REDACTED REDACTED
REDACTED
REDACTED
RE: MODIFICATION OF NOTE
HOURS
04/16/2009 OFFICE CONFERENCE WITH CLIENT 0.40 68.00
04130/2009 TELEPHONE CALL TO LORI GRAHAM 0.03 5 .10
TELEPHONE CALL FROM CLIENT 0.06 10.20
05106/2009 TELEPHONE CALL TO LORI GRAHAM 0.03 5.10
0511312009 TELEPHONE CALL TO LORI GRAHAM 0.06 10.20
05/1412009 TELEPHONE CALL FROM AMANDA WADE 0.03 5.10
05126/2009 TELEPHONE CALL FROM AMANDA WADE 0.06 10.20
PREPARED MODIFICATION AGREEMENT 125.00
0
06/1512009 PREPARED LETTER TO CLIENT; COPY TO HOLDER 0.12 20.40
FOR CURRENT SERVICES RENDERED 0.79 259.30
06/0212009 PAID TO BURNET CO. CLERK CK #18984 40.00
TOTAL EXPENSES 40.00
TOTAL CURRENT WORK 299.30
BALANCE DUE $299.30
Please Remit $299.30
THANK YOU
0
TAB J REDACTED
RR VOL 3 OF 4 AT 14-86
Page 38 of 86
noo
IIMI H IIIII 8 PGS
2889t5193
MODIFICATION AGREEMENT
Date: May 1, 2009
0 Holder of Not. and Uen:
Holder'a Mailing Address:
EDELL WADE
REDACTED
REDACTEDREDACTED
Bumet County
Obligor: JOHNNY WADE and AMANDA WADE, husband and wife
Obligor's Mailing Addraae:
REDACTED
REDACTEDREDACTED
Lampasas County
Nota
Date: February 6, 2004
Original principal amount: $500,000.00
Borrower: JOHNNY WADE and AMANDA WADE, husband and wife
Lender: EDELL WADE
Maturity date: February 1, 2036
Unpaid Principal and lnterast on Note: $227,528.00
Uen Documents: Deed of Trust dated February 8, 2004 from .JOHNNY WADE and AMANDA
WADE to PAT E. CAVNESS, Trustee, recorded as Document 002424, Volume 1223, page 503,
Offi~al Public Recorda of Burnet County, Texaa
Property (Including any Improvements):
That certain real property In Burnet County, Texaa, mora particularly deacnbed In Exhibit
"A" attached hereto and made a part hereof for all purpoaBS.
Extended Maturity Date of Not.: March 1, 2025
Modified Terms: The Interest rate on this Modification and Extension shall be zero CO%) percent
per annum. Principal shall be due and payable In monthly Installments of ONE THOUSAND TWO
HUNDRED AND N0/100 DOLLARS ($1 ,200.00) each beginning Juna 1, 2009 and continuing
regularly on the first date of each succeeding month until paid.
0 •THE PARTIES STATE HEREBY THAT THIS MODIFICATION IS FOR THE SOLE
PURPOSE OF EUMINATING THE OBLIGATION OF OBUGORTO PAVTO HOLDER INTEREST
ON THIS LOAN.•
The Note IS securad by Ilana agalnat the Property. Whether Obligor Ia Primarily liable on
the Note or not, Obligor navarthel- agree& to pay the Note and comply with the obftgatlona
expreased In the Lien Documents.
For value received, Obligor renews the Note and promlaas to pay to the order of Holder of
Note and Lien, according to the Modified Terms, the Unpaid Principal and Interest on Note. All
unpaid amounts are due by the Extended Maturtty Data of Note. ObHgor also extends the liens
deacribed In the Lien Documents.
The Note and the Lien Document& continue aa written, except as provided In this
agreement
Obfigor warrants to Holder of Nota and Uen that the Note and the Lien Documents, as
modified, are valid and enforceable and represents that they are not subject to rights ol offset,
rescission, or other claims.
- 1-
0
TAB J REDACTED
RR VOL 3 OF 4 AT 14-86
Page 39 of 86
When the context requires, singular nouns and pronouns Include the plural.
0 EDE :ADE
~~-
ST:ATE OF TEXAS §
. 2009, by
Notary bile, State of Texas
My commhsslon expires: /.-: · ·'< ~ '( .! ·
STATE OF TEXAS §
This instrument - • acknowledged before me on ,. - -;; /. ( li .{ . .:/ • 2009, by
JOHNNY WADE. ,
STATE OF TEXAS §
0
PREPAR&D IN THE OFFICE dl.....;,..,;,,..,;~;;:;;,.;;,:;,.;~
MARTIN a MILLICAN
512 EAST FOURTH ST.
LAMPABI'II. TX 785!10
m. ~~~:::,
AFTER RECORDING RETURN TO:
MARTIN a MILLICAN
!112 EAST FOURTH ST.
I.AMPAMS. TX 711560
TEl.: (512) 5118-GD
FAX: (512)l!Dtl-ll821
-2-
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 40 of 86
0
• · ao1d
~-~~~n!rn~!o~!~~.
in Burnet .Couney; 'r_aa, ·ena
t. . ·. • . .
JPiJ•at 'l'raott, West. Ono Ql>o.rter ~ Soc. 60; beill!I ane hundred ·
ab:'lli five 11nd· 28/l.oo aoree in llarnot Onunty; 'l'axaa, out or tho
~:~•J~>~::·•! n=~1:;:;:/=~~.~~~={·~~~Lu.;!~ ~~~· alfi. :·
'\noa . tl 9f B 21~ vra. a do ll ' 8-)/14. l!l 21~ vra. , "l'henoe with the
N 1lne o1' the add A. lt. Ae'M':r Bur • . W 71 ~ 9~5 vr• at 11ld on ·the
aaid 'II 1.1ne J'rca wb1oh l;h&. lf B oor o1' the aft1d A~ U. lklrr;r
Bur II 1'1 B s· 'l'ha Jl, B. cor of tlhe aa1CI.DeJ'Y7 .eUJ"; . 18 .
a at 1ll4 Mit. Db ll I..&t'fiG L, Q, 11llq"keCI bra Jl · '
Jl, 19' w. with tbe:W 11ne :S
0 top or·
Dlll1'J' at
oo:r. o'l'· tbe a
Blh'~
· . "' ' ..
~
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 41 of 86
0
26th, 187.3· . DasSDnlns
·If '71 D i'J"OM the .
-vra a at md.
br• sl B · 162 vr~. ·
wbenaD a J... o.
'1'h 8 19 E
a l.'tr-nob
0
--_·
·')
.
0
TAB J
RR VOL 3 OF 4 AT 14-86
Page 42 of 86
..·. · .. -".
0
:..nd Ji:mll'la S7.1vea'bero. deaaaeed, ·tbe unslerutsnod arant:ora be.lj,ob7 con~o7-
tnr. unto ~- eranteae bereln and und1v1dad rive-alxtba lSI~ 1nte~aat
1nlthe aboYe deacr1bacJ 1and, the grantoe Ede11 S~1•eater Wade ovn1nc
-"'. the- ot.ha~ undclvi-del) one-a1xt.h · (l./bl 1nte~aat t~•~•1n ·a'! one or 1:ho
· daY~aaoa ot the A. H • .nd Emma Sy~vaetar, deOaaaad.
. '1'0 lli\VP. t.lUl TO l!OLD· !>he above deec~J.'bed pr-1aea, tosathor w1U> ·
a11 and. •~nAU1ar, tNe rlgbta and' appartenancea thereto ln an~oe
· · 'be1~&M;LW..i:% ih~:;ie.~'~:r= W•d• and wi.te lld'eU s-,1nal>or •
·~a-o"";;A.,;.al'r'8~·1.niSfo.o-!l!.,l\:rlt'l• ·_;
f$
•
.! IIOI!III'dl-.
..; ~ .,
. · .
ouz"'·l ieJ..rri.'Vexaoutaara · and " adllllnlat~atara. · to'""Wirrariii=... u.a"7u1'·o vor
~:• 9 ·.. Dat'and" a11 . and a.1ngu1ar i the •a,!>:l.d preml.aaa unto 'the· Sil:l.d Qha~l.oa · Otto
. Wou!a llld w1t'a B:da11 8'11Yeat:er Wade, t:hei.r heirs and llaalgna asainat
ewe~ peraan · whomsoever 1aw~u11y ola~lftR, or to o~D~ the aano, or
a.n7 part tbarenf'. · .·
But: it: 1a' eapraeal.-, · ~·oed and at1pu1atod that tho Venda~'• Lien
and IIUptt,ri.or t1tl.a Are t-eta1.ned ~~~a1nat the AbnVCt aeocr'ibOd J1roport7
pr._laea· and ~rnv.men~a. in tavor at · Man~el Delbert · D71V•oter unt~1
tba abo•• deaorlbed no~o ~d o1~ lnte~eat: thereon are . ru11y paid
e."!loo:rdin& to lta .raae und tonor, a.t1'ect a. nd r•adlna,, •hen tlrl.a deed
ablll1 \utoDII!a ·nbaolut:a. ·
Wit:noan our hande . ~t Lampaaaa, 'l'axo•, thla 1st de~ or ~ahua~,
J\. n • .1.9S2· ·
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FILED AND RECORDED
e~P:=,_,OI
.JWW~ • · ~ te:e1 : 4a Aft
FEll: . . . . . .
J'•n.t p_..• .,.. County Cl.rk
lk.arnet Count.y, Te•ae
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Page 46 of 86
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A-TCRNEYS A-r LA\-'.'
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LAt.lFAS.4S. TE XAS /r;f)~·· t•
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TO PH'YSICIANS A~O MEDICAL POol. 7·:: oc
PREFA~EO AND SIGNED STATUTORY DURABLE PCA 'l'(l ()()
PRFPAREIJ AN:J SIGNED 1-PA RELEASE 20 Q(\
0 re>R C L' RRENT SER'.IICES Rt:NPER!:D
TOT~L CURRENT WORK
9/,LA~JCE DUE
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~ & MILLICAN US POSTAGE
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CAUSE NO: P9127
0 IN THE ESTATE OF § IN THE COUNTY COURT AT LAW
§
EDELL WADE § OF
§
DECEASED § BURNET COUNTY, TEXAS
RECORD OF EXAMINATION ON WRITTEN QUESTIONS
Following Is a record of the testimony given at the deposition of MICHAEL MARTIN
taken on behalf of AMANDA WADE pursuant to Rule 200 of the Texas Rules of Civil
Procedure, at 512 East Fourth St., Lampasas, Texas 76550, which commenced at 9:00
a.m. and which was taken by the undersigned, Elizabeth Watson, duly appointed to take
the Deposition on Written Questions in the notice. There were no appearances by the
parties or their counsel. MICHAEL MARTIN, the deponent, was duly sworn on oath, and
the testified, a true record of which is as follows:
Direct examination:
Question 1. Are you a licensed attomey in the state of Texas?
ANSWER: Yes
Question 2. How many years have you been licensed to practice law in the State of
Texas?
ANSWER: 42 years
Question 3. Where is your practice located?
0 ANSWER: Lampasas, Texas
Question 4. Did you, at any time, represent Edell Wade?
ANSWER: Yes.
Question 5. Please state the dates that you represented Edell Wade?
ANSWER: January 2007, March 2007, December 2007, April and May 2009
Question 6. What documents did you prepare for Edell Wade?
ANSWER: Combination Directive to Physicians and Family or Surrogates and
-1-
0
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Page 51 of 86
0 Medical Power of Attorney dated January 29, 2007
HIPAA Release and Authorization dated January 29, 2007
Statutory Durable Power of Attorney dated January 29, 2007
Statutory Durable Power of Attorney dated March 21, 2007
Will of Edell Wade dated January 29, 2007;
Modification Agreement dated May 1, 2009
Question 7. In regard to the Loan Modification dated May 1, 2009 attached hereto as
Exhibit No. 1 , did you prepare this document?
ANSWER: Yes
Question 8. Were you present when Edell Wade signed the document listed in Question
No. 7?
ANSWER: I am not sure whether I was but I believe I was not.
Question 9. Were you satisfied that Edell Wade was signing the document, listed in
Question No. 7, of her own volition?
ANSWER: I had no reason to think she was not.
Question 10. Did each of the documents that you prepared to Edell Wade represent the
wishes of Edell Wade as you understood her wishes?
0 ANSWER: Yes.
Question 11. Do you believe that Edell Wade understood each of the documents you
prepared for her when she signed them?
ANSWER: Yes.
January 31, 2012
Michael Martin Date
-2 -
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Before me, the undersigned Notary Public, on this day appeared Michael Martin,
0 who, after being duly sworn by me, testified under oath that the answers given in response
to the questions propounded in the foregoing Deposition by Written Questions are true and
correct to the best of his knowledge. SUBSCRIBED AND SWORN TO BEFORE ME on
Januarv 31. 2012 , by Michael Martin.
Nota~ithuc, State of Texas
0
bp/15. 707/lllgal1onlwllde
-3-
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0 JN THE E STATE OF
CAUSE NO.:
§
P 9127
IN THE COUNT Y COURT AT LAW
§
EDELL WADE § OF
§
DECEASED § BURNET COUNTY, TEXAS
NOTICE OF INTENTION TO TAJf>·
SHELDON E . RICHIE
57996.1 EXHIBIT"A" .JC
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0 J>OCl 1.UJ::,'\'1:'VIlVFOR.'l-IA T/ON REOI/1-..".\'Tf<."/)
I. All ll:.: and•or engagement agreements between Y\lU and Amnnda \Vndc entered into
bct\\C&:n January I. 200J and December 31. 2010.
Alii~~ ml\L'Ilr cngag.:mcnt agnxmcnt~ between you and Edell \\'ade entcre\1 into bctnccn
.hmuary 1, ~003 and December 31. 2010.
3. All docum..-nts re..-iewed by you in pr.:paring the Modification Agreement.-~_,·~----.<. """'~- -(
4. .--\11 tic>euments reviewed by you in preparing the Will nfF..Jdl \Vade. -_.,
3 J ~ ,.C.~
v-1.~
Definitions:
1. ··You:· as used herein shall refer to Armbrust & Brown. PLLC. and its otlicers.
members. re-presentatives. cmployco.:s. agents. and 'or nil other persons actin~! on or
purporting to act ('fl it.s t.ehalf.
··Amanda Wade .. us us~d hcrein shall refer h) Amanda \\"adc. her rcprcsentati\cs.
agents. and-'nr all uther persons acting on or purporting to act l'ln her bchalt:
3. .. Edell Wade·· as used herdn shall rcf~r tn Edell \Vade, her rqlrt:!>entutivt.-s, ugcnls.
~md/nr all othcr persons acting on nr purpnning hl al~l un her hc:=-half.
4. '"Dot"um~nts·· shall have the: menning intended hy Rules I 92.3(h) and 196 of the Texas
Kuks nl Ch il Procedure. includ\!S, by way of illustration only and nN by way of
limitation. the following. whether printed or rcpn.,du.:ed by any process. or written or
produced by hand, and whether or not claim~d to bo.: privilesed or otherwise excludahlc
from discovery. namely: computer H1pes. disks. drums. memory core:c;. hard drh1es or
nther Cl>mputer rn<-dia: en Rom disl..s: nvn disks; computer printouts; statistical
0 ~·o•npihHinnc; or printout-. or other lists: itineraries: correspondence: (;Ommunication of
any nature: telegrams: memoranda including internal memoranda and memoranda to the
lile. nr•tcbooks of any character; chnns: summaries or records of personal conversations:
nut.::; or rt.·cords of telephone con\'ersations. voice mail or telephone messages: scratch
pad notes: e-mail messages; dc-cuments sent or rec.:dved via the Internet or other
cumpuh:r on-line S<:"rvice: calt:ndars; diaries l,T excerpts therefrom: k•gs; routing slips or
mcnwmnda: reports: puhJications; photugraphs: minutes or rcl·nrds of meclin!•.s:
transcripts nf oml lt.'Siimuny ur slatcmo.:tlls: n:pnrts nr summ;,~rics of intcn-·icws: written
..;taktn~·nts : nfli&lavils: rcpurt~ nr summaries of investigations. agreements und cuntmcts.
including all modifications llr revisions thereof: rcptlrtS or summaries of negotiations:
\:nurt papers: brochures: pamphlets; press releases: drafts PI: re\ isions of drat1s. or
tran!"lat iuns of any document; tape recordings; dictation reemdings and helLe;; videotapes:
dutu compilntions; or all other tangible items. Any document ·w ith marks on any she.:~ or
!'ide thcr~ot: including by way of illustration only and not by way of limitation, initials.
~t.1mp.:-d indicia.. fax notations, any comment or any notation pf any character and not a
pan l'f the original text, or any reproduction thereof. is to be L'onsiJ~r~d a s~puntlt.·
EXHIBIT
II
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Page 61 of 86
.,
..
0 document for purposes oftbis request. "Document, also includes any copy of an original
document if the original is unavailable.
5. "::\fodification Agreement" shall mean tbe Modification Agreement dated May 1, 2009,
between EdelJ Wade as Holder, and Johnny Wade and Amanda Wade, as Obligors, and
modifYing the Promissory Note dated February 6, 2004, in the principal amount of
$500,000.00.
6. "Will of Edell Wade" shall mean that certain Will executed by Edell Wade on January
29, 2007, and witnessed by Barbara Potts and Liz Watson, and notarized by Diane
Varner.
7. "Property" means the+/- 475 acres made the subject of this suit, more commonly known
as REDACTEDREDACTEDREDACTEDREDACTED
8. ..Or" means "and/or."
0
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.. ..
NO. P9127
·"§
0 ESTATE OF EDELL WAOE, DECEASED
vs
§
§
§
.§
IN THE COUNTY COURT AT LAW
. OF
§
§ QURNET CdUNTY, TEXAS
§
_ QUESTIONS TO BE PROPOUNDED TO THE WITNESS,
THE CUSTODIAN OF RECORDS FOR: MARTIN & MILLICAN NIK/A MARTIN, M ILUCAN,
HENDERSON &.SHRUM
1. Please state your full nama, occupation, and/or official title.
ANSWER·-----------------------------------------------------------------
2. Did you receive a Subpoena Duces Tecum for the production of: ALL DOCUMENTS AND/OR ITEMS
AS REFERENCED IN EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF pertaining to
EXHIBIT "A"?
ANSWER----------------------------------------------------------------
3. Are you able to Identify these records as the original or true and correct photostatic copies of the
originals?
ANSWER~--------------------------------------------------------------
4. Were these records macle and kept in the regular course of your business? (Business means any kind
of regularly organized activity, whether conducted for profit or not).
ANSWER·------------------------------------------------------~~~-----
5. In the regular course or your business, did the person who signed or otherwise prepared these records
0 ellber nave personal knowledge of tile entries on these records or obtain the Information to make such
racords from sources who have such personal knowledge?
...ANS
6 . Are these records under your care, supervision, direction, custody or su"Jeetto -your control?
ANSWER·----------------------------------------------------------------
7. Are these records made at or near the time of the act, evant or condition recorded on the records, or
reasonabllt-.soon the~er pertaining to the Incident In question?
ANSWER~--------------------------------------------------------------
8. Were these records kept as described above?
ANSWER·-------------------------------------------------------------------
57996.1 EXHIBIT "A" JC
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Page 63 of 86
9. Have you been requested, directed, or has it ever been suggested by any person (whether doctor,
lawyer or al)yone.ea.e) that any part of the records subject to this deposition be withheld or protected tram
discovery for any reason? ·If so, please state the name and address of the person who conveyed this
0 infonnatlon to you and when such event occurred.
ANSVVER________~--------------------------------------~--------------
10. , Are there any other locations where MARTIN & IIIIILLICAN N/1n Expl,..
57998.2 EXHIBrr"A" .JC
0
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Page 68 of 86
0 Date: February 6, 2004
Promissory Note
rti COPY
Borrower: JOHNNY WADE and AMANDA WADE, husband and wife.
Borrower's Mailing Addrea:
JOHNNY WADE and AMANDA WADE
REDACTEDREDACTEDREDACTED
REDACTED
Riverside County
Lender: EDELL WADE
Plaee for Payment:
REDACTED
Lampasas, Burnet County, TX 76550, or any other place that Lender may designate in
writing.
Principal Amount: $500,000.00
Annuallntereat Rate: Two Percent (2%)
Maturity Date: February I, 2036
Annual Interest Rate on Matured, Unpaid Amounts: Twelve Percent (12%}
Terms of Payment (priDclpalaad latereat):
0 Aa:rued interest is payable on the 1st day of March, 2004 and on the 111 day of each succeeding
month through February 1, 2006. Principal and interest are due and payable in monthly installments of · -
ONE THOUSAND EIGHT :m.JNDRED FORTY-EIGHT AND 10/100 DOLLARS ($1 ,848.1 0), each,
beginning February 1, 2006, and continuing regularly on the 1"' day of each succeeding month until
paid Payments will be applied first to accrued interest and the remainder to reduction of the Principal
Amount.
Security for Payment:
This note is secured by a vendor's lien and superior title retained in a deed from EDELL
WADE to Borrower dated of even date herewith and by a deed of trust of even date herewith from
JOHNNY WADE and AMANDA WADE to Pat E. Cavness, Trustee, both of which cover the
following real property:
That certain real property more particularly described on the attached Exhibit ..A".
111323-2 0210412004
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0 Other Security for P ayment: None
Borrower promises to pay to the order of Lender the Principal Amount plus interest at the
Annual Interest Rate. This note is payable at the Place for Payment and according to the Terms of
Payment. All unpaid amounts arc due by the Maturity Date. After maturity, Borrower promises to pay
any unpaid principal balance plus interest at the Annual Interest Rate on Matured, Unpaid Amounts.
If Borrower defaults in the payment of this note or in the performance of any obligation in any
instrument securing or collateral to this note, and the default continues after Lender gives Borrower
written notice of the default and ten (10) days opportunity to cure such default. Lender may declare the
unpaid principal balance, earned interest, and any other amounts owed on the note immediately due.
Borrower and each surety. endorser, and guarantor waive all demand for payment. presentation for
payment. notice of intention to accelerate maturity, notice of acceleration of maturity, protest. and
notice ofprotest. to the extent permitted by law. ·
Borrower also promises to pay reasonable attorney's fees and court and other costs if this note
is placed in the hands of an attorney to collect or enforce the note. These expenses will bear interest
from the date of advance at the Annual Interest Rate on Matured, Unpaid Amounts. Borrower will pay
Lender these expenses and interest on demand at the Place for Payment. These expenses and interest
will become part of the debt evidenced by the note and will be secured by any security for payment.
Prepayment:
Borrower may prepay this note in any amount at any time before the Maturity Date without
penalty or premium.
Applicatioa of Prepayment:
Prepayments will be applied to installments on the last maturing principal, and interest on that
prepaid principal will immediately cease to accrue.
0 Interest on the debt evidenced by this note will not exceed the maximum rate or amount of
nonusurious interest that may be contracted for, taken. reserved. charged, or received under law. Any
interest in excess of that maximum amount will be credited on the Principal Amount or, if the Principal
Amount has been paid. refunded. On any acceleration or required or permitted prepayment, any excess
interest will be canceled automatically as of the acceleration or prepayment or. if the excess interest has
already been paid. credited on the Principal Amount or, if the Principal Amount has been paid.
refunded. This provision overrides any conflicting provisions in this note and all other instruments
concerning the debt.
Each Borrower is responsible for all obligations represented by this note.
When the context requires. singular nouns and pronouns include the plural.
If any provision of this note conflic:L'i with any provision of a loan agreement, deed of trust, or
security agreement of the same transaction between Lender and Borrower, the provisions of the deed of
trust will govern to the extent of the conflict.
181323-2 0210412004 2
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0 This note will be construed under the laws of the state of Texas, without regard to choice-of-
law rules of any jurisdiction.
c
A:.'\fANDA WADE
0
181323·2 0210412004
3
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0 :: -·..
EXHIBIT A
. KNOW ALL MEN B'T THESE PRESENTS:
COUNTY ~F LAMPASAS I
That we, · Manae1 Delbert Sy1vester and Chester Horace Sylvester, in-
dividually and as independent executors of the willa and estate3 o~
A. H. Sylvester and wife Emma Sylvester, both deceased, Mi~lie S~lvester
wife of Manuel Dalbert Sylvester, Melba S~lvester, ~1te ot Chester
Horace s1:-.r, Lenora S-ylvest .. r nutl.Ar, and·hUShAnd Austin M. Bl1t1er
star Stewar.t and husband Ivan 111. Stewart, o. ell
;,t\:~el,b or and· in· .conaide.rat:lcn
-~r o1''"~the 1ars · to· us in han!i · . ·
· · Pfl.td · and ' secured ' to , paid ·~ada: and "wi~e· Edel} Sy1veater
-Wade' aa follows: · ' ·· ·-- ·· ••· ·•. . , '
'l'wel.ve ·'l'housand ($12,000.00) Do1lars·•-cash in hand paid, the receipt
of ' wh:lch is herebT acknowledged and for which no lien expreaaed or
im~~~~etained or shall exist and one promissory Vendor's Lien
no~~~~~ 'date herewith given by the sa:ld Charles Otto Wade and
wire Edell. ' Sylvester Wade, payab1e at the express reqtlast a:nd ':,direction
. o~ _al.l the parties he~eto to Manuel· Delbert Sylvester -or order, due-
en or before February l, 1952, with interest ~hereon ~rem maturity
nntil. paid at the rate of ' six (6") per cent per annum, said nate
being payab1e at Lampasas ·, Texas, and providing fer 'the usua1 Vendor• s
Lien and ten per cent attorney's fee cl.auses, and the Vendor's Lien
and superior title retained · in this deed to secure,the payment or sa:ld
note are hereby trans£erred 'and siRned ·to the said Manuel Delbert
·sy1ves~er, hls heirs and assigns, and the undersigned ~ranters hereby
acknowledge that the rull and entire consideration fer this ccnve~ance
has been to them and that the•r do not have, hold or claim sny
and._pnam1.aaa-c.OA~~·d-Jo.e.-b;;: ~z.a•p·'l;,.eao~n~.,t.a....LJ.ea.
title ~ · favor · or said Manuel-o&lbert-s~lvester, his heirs
and aasiRns as aforesaid; have Granted, Sold and Conveyed, and by
these presents do Grant, Sell. and Convey untcuthe said Charles Ottc
Wade and wife Edell Sylvester Wade or Durnet County, Texas, a1l that
certain real estate sitQatad in Burnet .county; Texas, and described as
fo1lows: ·
First Tract: West One Quarter or Sec. 60, being one hundred
sixty five and 28/100 acres in nurnet County, ToxBs 0 ou~ of the
Texas Central ftR1lroad Company Survey, bep,inning at the N. w.
0 cor. or the A. M. Derry Survey, a set stone from which a L 0
bra !T 9~· E 216<\ -no a. a do N B-3/4 E 219·~ vrs. Thence with the
N line of the said 11.. M. !'larry Sur. fiT 71 E 945 vrs st md on the
said N line rrom wh1.ch the N r~ enl'" or the se1d A. 111. '!'larry
Sur. bra tt 71 E S vrs. The n. E. cor or the seld Derry sur. is
marked by a a.t md 1'rom \-mich a Larp,e L. o. m11rked U bra N
42?; W 2SO vra. Thence N. 19 VI. wi.th tho W l.ine o~ t.he E 3/4
of Sec. No. 60, at 410 vra. the top or Hluf~ at 460 vrs. cor.
on the Tlest Edge of Branch at N W cor. of the said E 3/Li- or
• No 60 on the~ . s ·line··of the Thea. ·B1a1r Sur. Thence with
.lo acres, be:in~ Survey JTo. 148?,
on the waters of M~aquite Cr at tributary o! ·the Lamp~as 'River,
·· about 15-?l- miles Jf 16 E from· Burnet by virtue of an a.ffidavit
made before the Clerk of· the County Court or nurnet Cnunty,
. December 29~h. 1897, under 'lll.n Act for the benefit or Actual
:... .
.,
\
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Page 72 of 86
.,
.. ~; ~-=.... . . ~ .\ . ··""· . -~ .
···..... ~: ·. : ..,'" . ~ ': : ..-:; ·.
0
·.f. '
Occupants o~ Pub1ic lands. approved May 26th, 1873• Be6~n1nc
a~ at md . $82 ·vrs. N 19 w . rrom a~po1nt.3bO vrs ·N 71 E ~rom the
;, •.N · w r.or. , of. the Bu~ McCoy a1,1r; "b N 19 . W 9$0 'VT& a at md
whenae a . L 0 ~rs N 4?.~ W 250.vrs .a Mesqu1te,bra Si E 162 vrs.
· :·;·Thanca s '71 w 200 · vrs a branch 9$0 vrs a at . md whence a L. 0 •
.' N 9t E. 216! vr.e do brs ' N 8-J/4 E 219-?t vrs. 'J'h S l.9 E
· vrs a branch 950 vr.a o at md, 'l'h N 7.1 E 475 vrs a branch
vrs to the pl.aca o~ bo~inn'l.ng, bear1nr,s rnar!ced H.
Out or the Thos. w. D1a1r described as
:i~1l~~~~§~~~t!
~~~---~A~~~~~!i~M:·;t~~z~:· ·-·-
~ ...•·!·~
.•oert.a:tn ..tract:-~. ·· _..,.•.:?
.-
~: Burnet.:coun10y, .. , ·
·-···--,in · the ..name ·.of
1t . be~g aria or
' the
.· · or1g~a1 corners o.t . aa . or1e;1na1. survey from which·...,_.. L1ve OAk
braN 50 w 7$ vra. · Thence s 71 w· 1900 vra to a aeone pi1e rrom
·which a Live Oak bra N . SO W 75'vrs. Thence N 19 W with George
Aurt1er•a 11ne 600 ·vrs to a rock md on T. W. Hart's South line
rrom Which an E1m bra · s 7 W 51 vra• Th N 71 E a t 100 ~a the
Creek, and ot 16oo· vrs. T. W, Hart's s. E. Cor., from which a
Me a quite bra N 35 W 20 vrs. and El.JII bra lf 74 E 50 vra. '1'h S
19 E to Mesquite Cr and w1th the meanders or the Creek' ·dowr. to
wbe:re the Charl.ea Wilson South 11.ne crosses the•creek and
.._. thence South 19 E. with said Wilson 11.na 400 vra. to the cor or
:·, · · the same·• 'l'he. S"l9 •E' with the' original l.ina 400 vra to the
'- · ·.... ·l .... '=beg1nn1ng·' cor. • · c·onta1nins two hundred' acres, more or less,
' SAVE ·AND EXC~T 40 acrea • more·· il!r 'l.esa • out: or this ·Survey, the
said 40 acres being as rollowaz · Bas at · theN W cor. o£ this
-Sur. Th about 100 ~arda to and across Mesquite Cr. Th along
iiior:-- .· .•., ..,_., theN _l,1ne o;r ~1e.aqu~te .cr • .,.to a.~a,..lt?-U~.t;&,fit..!'--l!hoq.t~~9·-f. eet;. ..b,e1ov~.,.. ~ ... ~ ,.
~-·,·."';! ·~· . ;;,.--"'""'!"p.lilha•·:rook ~al.l.~n • eaii! ' )Jesqu1 ta"'"Cr·•.,..., Thence -across"lr'e sq1.11 te Cr and
. ~_· ..s 19 E "about>"·J.OO 'vrs ' to;·thtt ·or1~1na:l S boundary l.ine or this
• , . sl.l:rvey, wh1ch l.ost ~amed 40 acres ~ or l.asa ,is hereby :reserved
· · .. rrom the . proviaiona " of ..this dead. •· .. , ' _ , ·
1
- ·: AI.SO,-' SAVEAND'EXCEPT, 10 acres 1 more or l.eas 1 out of the
above n~~med 'l'hoa. 'Blair Sur> as c.onveyed by Ali.ca 111. 9erry and
G. L. G~avea and wife, M. H. Graves 'to R. B. F. Berry by deed
0 dated~· J.4, 1909 1 recorded in·Vo1 • . 4B, pg. '95, Deed Recorda
'Burnet County, Texas, descr111ed os .to1lowa:
piece, parcel or tract of land out of the Thomas B~air Sur on
llleaquite Cr 1n '3urnct County, Texas, descri'bed as 1'oll.ows:
a part of the 1.60 acres. of the aaid Thomas B1air Sur conveyed
A1l th,.t certain
to Al.1ce M. ~erry by J , w. Bl.Ri.r and wl.te by their deed dated
l.t ..y 29th, l.903, rooordad in Vol., 40, pn pagea 146-13, of the "
Dead Recorda of Bu:rnet Count.y, Texas, to which reference is
here made and the said part. herein conveyed ls a11 of the
. same Y tho a cove d ascribed prem:lses, toGet'1or with
al.l. and sirtr,\ll.ar, tne ri.,;hts and appurtenances thereto i.n anywi sa
bal.~i~unto the sa\d Chnrl.ea Otto Wade and w~fo Edel.l Sy1vestr~
•• Wlb>:?ft~J!II 0 ilfta#olii!l~iPFSJI1W.er·~!>~~~.A•zo~7-':"l;l mdl-our~.~~-'!_S,
:. oiU"'·he.irs, ' exeoutors and administrators, to "Ne.rrant · and For·ever ·
Detend.. a1l. and singu1ar the said premises unto · the Sa.id Charl.es Otto
·wade and wif'e Ede11 Sylvester' Wade, their heirs and assi~ns against
every person whomsoever 1awtu1ly cl.almine, or to claim the oame, or
any port thernof'.
· But i t 1.s oxpress1y ~eed and st1pul.ated that the Vendor's Lien
and supar1.cr t1.t1o are retained o~ninot the obnve deecrib~d propert7
premises •nd imprnvementa, in ravor or Manuel. Dol.bert Sy~veoter until.
the above described note and e11 interest thereon are .f'ull.y paid
a~cord\.T1fl to its .race and tenor, o.r.rect and reading, ••hen l.hl.a deed
sha11 bename abso1ute.
\'lit ,·•as ~;: our hands . at Lampasas, 'l'e,.;ns, this ~st day of :J'.nual"i1•
A. D. 1.9S2·
t ·-,: . .. ..
t: -
0 -t¢ehl'je.~~a
THE STA'.l'E OP Tl!!XAS I
a,~- ?Ka.z-~_
COUllTY OF'~
Tlj),l'ore nc, t.he undor.,±snod author!.ty. " UntRry Publ. ~. r. ·t n Rnd
roriCJIIv ~ Cn~~nt.y, 'l'n~ac, nn t.hl.o J"Cr>rcd 1!:1nuel
Dnl.bart S~lvoctor. nnd J.fil11e .">:•1Vo3ter. his w.'. .f'c, hoth !mo,-m
to !110 to he the r>crsnn!J '!ll"tose nmne A are s ubscr:1 bed to the r: n:re-
no1~ instrument, tondacl:!!Cl\ted
~.,, _ the s ama f'or the purpGisea and consideration ther,.in expressed, l!.nd
~... ........ tfle s a~d Jltil.lie Syl.vester, wire of' the said Manuel. DeJ.?ert !;:•lva!Ste:r
~,.~ ..-,;harlng..··bee,D-• examined b:y me privily and apart l"rom her husband • and
hllvin~; hhe 81\1'18 ful.l.y eXJ") B1ned -r,o her, :~he, tl"te · snid t!. i l li., !'>7l.VP.ater
na' cnowlodred !!l\ch l nnt.rui'\P.nt tn he her net and deed • and Aha de-
· clared thot ohe . had wi111n•: l -;t si-;nnd the snme for the pnr••o::~es and
con:~!.de:rot.ton therln ex'!)res:aed, and thnt ohe dtd nnt. wt:;h to re-
trar.t i t .
flT.VEiT ""!DEn UY JTJ\liD AltO SEAL OJi' Ol'Flr:E, This 26th cloy of January
A. D. 1952 •
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0
TRE STATE OF TEXAS
COUNTY OF ifZ.,. ..
. De.f'e~re me, the. undersi~!}ed author1ty, a l~Qtary Pu~lic 1.n and ror
!?cl
.,.;.
;tiS 1 County, Texas, on thi:J dRy !"er:~onally appeared Chrit!•, n notary Puhl!.,. •n and f'n:-o
'J:'o:r.ns, on this day personnll.:_. appe::>••nc'l ,'\us tin Jn. Butler
on Lenora s:-lvestar ::IL\tler. h:l.s w1.1'e bot;h !:novln to 11\0 to be .th!l.
·-persons whoee nemes are subscribed tn the roreaoin~ instru~e~t.
and acknowled'?=ed to me that tltey each executed the same for the pu:::--
poeee and consideration ther~!n expressed, end the said ~enora
Sylveate~ fhttl.er, wi1'e of the :J»id ,1\ustin U. "\utler, havin."; been
examined by me priv:l.ly and apart 1'rom h~r husband• and hav:l.n~ the
SliJIHt ;Cul.ly explained to her. she, the all.:l.d Lenora Syl.vester Antler
acltni)Yil.adt""ed BL\ch instrument to bo her set and dned, and ohe de-
0 cliU'od that she hnd Ylill.in:-;ly signod the same for the purposes find
cnnsideration therein expressed, and that she did not wish to re-
tract :l.t.
OIVT::\f ~''·!D~ }.~ 111\110 A ~10 S11:A!. OI•' OF'J.OiCr.;, Th'ls 20th cla7 of 'Januar,. · .
Ao P. l';l;2.
~;...
iJ. v, IIAMM1rrr
Notary
TAE STATE. OF TE"..CAS I
• ·..•: .;,i....,COUIITTY' OF~.,.... I
:-# ne1'oro bhe undoro:t .• :ned J\1\thor:l.ty, a 1'Jotnry Pl: 1., l:l.c in ancl ror
m~,
~~County, Te:oo:oa, on this day personal.l~r ap'!"'eared Ivan 111. S-:.e,.,t\rt,
an ~C'Irein ~yl.vAstar Stewnll:'t. h:l.e wit'e hoth 1tnn"'" \:.o me to be the
persona Tthn'le nn,es are !!1lb!'lc··tbe., to the roli:'P.~o:l.n!:: ins truMer.t •
· and acknowledr,od to me th~t thny each exocutad the ~nme ror the pur-
poses ond ce~naiderot: 1 ,n therein e:-:prr::J:lod, anti the s&.!.d t::ore:l.n
S:","l.vostcr ~tewart. wit'e o! tho naic1 Ivan M. Sto,Rrt, havin.r-; been
exorn1ned tty me pr1 vlly and apart !rom hat> husblmd, and hav i. n~ tho
oame fully explained to her, sho, the sa~d Core:l.n Sylvaster Stewart
nclmowledP.ed such instrument to be her Ret nnd deed, and she
dflcla;r'td that she hnd YlilU.n--;l.::r si ·-nod tho same for the purpooes
lind conoideretion therein exprcaacd, and that she did not ~•ieh o;o
retract i t .
GIVEH lTP'OETI UY HAND J\ND ST~AL OF OFFICE, T h : r s ay of -JanU&J'7'•
A. D. 1952. /
OI.V.~ S}??.. ~---~ -- ,~
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Page 75 of 86
0
• j
·~~ ..
.·THE STATE OP TEXAS. •·
~OUR'l'Y . ~P ~'f- ... I : .. ·':; : · _ .· . , .. .
~~ .~e, the undersigned authority, a Nota~ Pub11c, in and
1'or county, Texas, on t.hi.s day persona1l.y appeared 011bert
Phi. 1.1 • - and o. Zftl.l. Syl.vester Phil.l.1po 1 ·hi.s \'li1'e, both lmown to
- •n 'lfAI. . . . p•JI!PD't ;"~?,.,'!!.._'?~ ~~~J1.~.Ji_\)_...,.J OrH9iJ'!.E;. ,
i.ns~r~~tl;-7..and· ~olaiow'IirlfgildtO me' ·"tli1lt..--th"'j-"'"eac1i""'ex~.ou:t._d'"tli.e~aii:'Yie
~ :f'or
-the ·purposes· and considera-tion there1n expressed, and the saifo
o. zall. Sylveater Ph11l.ips, wire or the said Gil.bert Phi111ps, ·
hav1nB been examined by me privily and apart ·rrom her husband, and
having the same fa1ly explained to her, she, the said o. Zel.l
Sylvester Phill.ipa acknowl.e~~ed ~uch instrument to be hor act and
deed, and she decl.sred that aha had w1l11n~l.y signed the same ror
-the purposes and consideration therein expressed, and that she did
not wish to retract it.
cn:VElT' TTJfDEm L'IY HllHD AND SEAL OF OFFICE, This 26t;hday of .f.li.m:iar;r ·•,
A. Do l.C}S2.
~"·~ ~ ~
~otaryz;mc:J9~ Texas
TlfE STA'l'E OF TEXAS
COUWl'Y OF ~
a
:)'!--:,: -~ :f'or
:· .. Del.bert;
•r ·
.~~me, the undera:iGn!d atJ.'bhori.ty, Notar-y Publ.i.c, i.n and .
!i'.lofDtxLd~g~•• • -.!2~ - 1i~1s · day·peraonal.l.-;r appeared Manuel.
Sy:Lvlt~•:f'T-!tftdllpefttt•n'e executor of the wi. ~l.s and estates of
0
A. H. Sylvester-ana wite Emma Sy1vester, known to me to be the person
whose name is subscribed to the foree;oibg 1nstr~,mant, and aclmow1edged
to me tho~ he executed tho aame for tho purposes and considerati.o~
expressed therein, and in tho capacity therein stated.
r.!VEJJ lJlTDEFI J.iY ll.AJ-TD AliD SEAL OF OFF.ICE, This 2othdny n:t' Janua~.-,
A.D. l.$2•
••. ...._,oterpo~y,;aa ~4~
TIIF. ST~'l"~ OF Tl::XII.S I
CO'Ul'JTY OF ~ I
......,aorore me, the undersigned authority, a l'Totary Pub11c, in o;and
il.; __.- .•. tor~¥ .... County, Texas, an th:is da-y personal.l.y appeared Chester
wft~·i6nn,aoa: , yl.v~st~2", .'' 1na.1v.1.dua~l.;y · and .. as :independent executor . or the w 11l.a
nnd ' ost~t<'!c r"lt 11.. H. !\j1vezter IVI.d w!:t'e I!:rnrna S7-•1voste,.., 1 OJ•Fir.E, Th1a .26.t.l>_dGy at: January . •,
A. D. ~953.
/-t_.
·';: .,.."> ..:: \
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(
0
0
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: .'\..,ES
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Page 85 of 86
1 C E R T I F I C A T E
2 STATE OF TEXAS
3 COUNTY OF BURNET
4 I, VICKI K. KANEWSKE, Official Court Reporter in
5 and for the County Court at Law of Burnet, Burnet
6 County, State of Texas, do hereby certify that the above
7 and foregoing contains a true and correct transcription
8 of all portions of evidence and other proceedings
9 requested by counsel to be included in this volume of
10 the Reporter's Record in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, offered by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $834 and has
18 been paid for by Mr. Don Richie, Attorney at Law.
19 GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 3rd
20 day of March, 2015.
21 /s/Vicki K. Kanewske
22 VICKI K. KANEWSKE, TEXAS CSR NO: 2159; EXPIRES: 12-31-16
23 Official Court Reporter, Burnet County Court at Law
24 220 S. Pierce, Burnet, Texas 78611
25 512-715-5244; Fax: 512-715-5226; Email Vkaykan@live.com
3
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Page 86 of 86
03-15-00100-CV
1 Supplemental REPORTER'S RECORD
2 VOLUME 2 OF 6 VOLUMES
FILED IN
3rd COURT OF APPEALS
3 CAUSE NO: P9127/COURT OF APPEALS NO: 03-15-00100-CV
AUSTIN, TEXAS
5/14/2015 2:20:39 PM
4 IN THE MATTER OF ) IN THE COUNTY COURT
JEFFREY D. KYLE
Clerk
5 THE ESTATE OF ) AT LAW
6 EDELL WADE ) BURNET COUNTY, TEXAS
7
8
9
10
11
12
13 EXCERPT TRIAL TESTIMONY OF
14 NANCY BURNS AND MICHAEL MARTIN
15
16
17
18
19 On the 30th day of September, 2014, the
20 following proceedings came on to be held in the
21 above-titled and numbered cause before the HONORABLE
22 RANDY SAVAGE, Judge presiding, held in Burnet, Burnet
23 County, Texas.
24 Proceedings reported by computerized stenotype
25 machine.
1
1 A P P E A R A N C E S
2 RICHIE & GUERINGER, P.C.
3 100 Congress Avenue, Suite 1750
4 Austin, Texas 78701
5 512-236-9220
6 BY: MR. DON RICHIE
7 MS. EMILY SEIKEL
8 APPEARING ON BEHALF OF JAMES(BUD)WADE
9
10 LAW OFFICE OF DON E. WALDEN
11 7200 North Mopac, Suite 300
12 Austin, Texas 78731
13 512-349-9595
14 BY: MR. DON E. WALDEN
15 APPEARING ON BEHALF OF NANCY BURNS
16
17 GRAVES DOUGHERTY HEARON & MOODY
18 401 Congress Avenue, Suite 2200
19 Austin, Texas 78701
20 512-480-5600
21 BY: MS. KATHRYN ALLEN
22 AND
23
24
25
2
1 A P P E A R A N C E S C O N T ' D
2 STUBBS LAW OFFICE, PLLC
3 202 N. Porter Street
4 Lampasas, Texas 76550
5 512-556-8970
6 BY: MR. EVAN STUBBS
7 APPEARING ON BEHALF OF JOHNNY WADE AND AMANDA
8 WADE, INDIVIDUALLY
9
10 HILL, DUCLOUX, CARNES & DE LA GARZA
11 400 West 15th Street
12 Suite 808
13 Austin, Texas 78701
14 512-474-7054
15 BY: MR. CLAUDE DUCLOUX
16 APPEARING ON BEHALF OF AMANDA WADE, EXECUTOR
17
18
19
20
21
22
23
24
25
3
1 REPORTER'S RECORD
2 VOLUME 2 OF 6 VOLUMES
3 CHRONOLOGICAL INDEX
4 PLAINTIFF'S WITNESSES:
5 NAME: Dir Cross Redir Recross Vol
6 Nancy Burns 7,35 2
7 Michael Martin 78,109 115,129 2
8 DEFENDANT'S WITNESSES:
9 NAME: Dir Cross Redir Recross Vol
10
11 Court Reporter's Certificate Page 131 2
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 REPORTER'S RECORD
2 VOLUME 2 OF 6 VOLUMES
3 ALPHABETICAL INDEX
4 WITNESSES: Dir Cross Redir Recross Vol
5 Nancy Burns 7,35 2
6 Michael Martin 78,109 115,129 2
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5
1 REPORTER'S RECORD
2 VOLUME 2 OF 6 VOLUMES
3 EXHIBIT INDEX
4 PLAINTIFF'S EXHIBITS:
5 No: Description Offered Rec'd Vol
6 87 Safe deposit box lease 127 127 2
7
8 DEFENDANT'S EXHIBITS:
9 No: Description Offered Rec'd Vol
10 2 Copy of check 26 26 2
11 3 Handwritten will 36 37 2
12 4 Copies of bank information 44 44 2
13 5 Copies of checks to Nancy 77 77 2
14 6 Invoices from Bill & Nancy 77 77 2
15 7 Receipts from Edell Wade 77 77 2
16 8 Copies of checks to Weldon 110 110 2
17 9 order approving first inventory 111 111 2
18 10 Order approving 1st amended inventory 111 111 2
19
20
21
22
23
24
25
6
1 ******
2 MICHAEL MARTIN
3 Having been previously sworn, testified as follows:
4 CROSS EXAMINATION
5 BY MR. STUBBS:
6 Q Mr. Martin, you said you've been practicing
7 law for 44 years; is that right?
8 A Well, I would say 42 probably.
9 Q And during that time frame how many files do
10 you think you've dealt with?
11 A Several thousand of them, I'm sure.
12 Q I mean, by several thousand, we're talking 16,
13 17, 18,000, something like that?
14 A I would guess.
15 Q Okay. How many people worked for you when it
16 was you and Pat Millican when it was Martin & Millican?
17 A We had three secretaries.
18 Q And did you also have a title company?
19 A Yes.
20 Q Were there also employees at the title
21 company?
22 A Like two or three normally there.
23 Q But how is it that you don't remember every
24 single conversation that you've had with everybody who
25 came in your office?
78
1 A I'm getting awful old.
2 Q My point is on a regular week did you deal
3 with one file individually and that was it, or did you
4 have a busy practice?
5 A I was just a typical small town practitioner
6 doing everything that came in the door, and we were
7 busy.
8 Q And I think from all of this three or four
9 hours of testimony it all really boils down to one
10 question, and that is were you in cahoots with Johnny
11 and Amanda Wade to somehow try to take money or take
12 land or take advantage of Edell Wade?
13 A No.
14 Q In your 42 years of practice, were you ever
15 sanctioned by the State Bar for anything unethical?
16 A No.
17 Q And obviously in 42 years of practice if you
18 had done something such as trying to work with one
19 client to embezzle something or take advantage of
20 another client, that would be where the complaint would
21 go; wouldn't it?
22 MR. RICHIE: Your Honor, I'm going to
23 object. We've not sued Mr. Martin or suggested that he
24 embezzled anything. It's just irrelevant.
25 MR. STUBBS: Well, they spent three hours
79
1 on him trying to --
2 THE COURT: I'm going to overrule the
3 objection and let him answer.
4 A Could you repeat that?
5 Q (By Mr. Stubbs) In your 42 years of practice,
6 had you ever tried to conspire with a client to embezzle
7 or take advantage of some other client, the
8 State Bar would be where that complaint would be filed?
9 A Correct.
10 Q And in your 42 years you have never been
11 sanctioned for anything unethical, correct?
12 A That's correct.
13 Q Now, if we start with this $80,000 in the safe
14 deposit box, are you familiar with the way certain
15 accounts at institutions can be held?
16 A I think so.
17 Q And by that what I'm getting at is you can
18 have an account that is solely owned by one person, it
19 can be held as a pay on death beneficiary or it can be
20 held with the rights of survivorship?
21 A Correct.
22 Q And in the event of this safe deposit box that
23 is at issue, do you know how it was held?
24 A No, I don't.
25 Q Okay. If it were held with a right of
80
1 survivorship to Johnny Wade, then would there be any
2 obligation for him to turn that money over as an estate
3 asset?
4 A No.
5 Q So with that right of survivorship, then upon
6 Edell's passing the contents of that safe deposit box
7 became his sole property; didn't it?
8 A I would agree.
9 Q If the safe deposit box was held as joint
10 tenants can you tell this jury what that means?
11 A I would call it co-ownership. Two persons
12 having equal ownership of one account.
13 Q So was that the -- would that have the same
14 effect upon her passing if it were joint tenants?
15 A No. If it's not with survivorship I'd say no.
16 Q But if it did have the right of survivorship
17 it would be the same?
18 A It would.
19 Q Okay. Now, recently you were asked some
20 questions about a life estate and whether or not a life
21 estate is enforceable and so forth. And I believe that
22 Mr. Richie showed you what's been marked as Plaintiff's
23 Exhibit No. 5. Do you still have that up there?
24 A I do.
25 Q And under number 2, does that seem to be clear
81
1 to you that there was an intention for Edell Wade to
2 have a right of survivor -- I'm sorry. To have a life
3 estate or effectively the ability to remain in her home
4 until she passed away?
5 A Yes.
6 Q Even though she was selling, I'm going to say
7 the ranch, this appears to show that there was a meeting
8 of the minds that she could stay in her house until she
9 passed away?
10 A Yes.
11 Q Now, do you know where she lived when she
12 passed away?
13 A No, I don't.
14 Q Are you aware of any time when Johnny or
15 Amanda Wade tried to force her off of that property?
16 A No.
17 Q If the evidence in this case showed that she
18 actually passed away in her bedroom in her house and was
19 Star Flighted back simply so she could, would that
20 surprise you?
21 A No.
22 Q So all this question about whether it was a
23 life estate or not, if she never was asked to leave her
24 property and in fact passed away in her own bedroom,
25 it's really just smoke and mirrors; isn't it?
82
1 A I would think.
2 Q You were asked a bunch of questions about
3 various documents and whatnot, and the effect of that
4 was to make some implication that Amanda Wade abused the
5 power of attorney that she held for Edell Wade. Do you
6 recall those questions?
7 A I do.
8 Q To the best of your knowledge did she ever use
9 that power of attorney in any way?
10 A I wouldn't have any way of knowing. Nothing
11 came to my attention.
12 Q Well, in the modification that Mr. Richie
13 would ask you all these questions about, she didn't go
14 in and sign it on behalf of Edell wade; did she?
15 A Oh, no.
16 Q On the power of attorney, the various power of
17 attorney documents, she never went in and signed
18 granting someone else somehow or on behalf of Edell
19 Wade; did she?
20 A No.
21 Q As far as going back to the question about the
22 life estate, you were kind of led into questions to
23 imply that Johnny Wade or Amanda Wade could have then
24 sold that ranch but in that let's just assume that
25 Johnny or Amanda or both were trying to sell that ranch
83
1 while Edell were still living, Johnny and Amanda would
2 have been aware that there was this agreement for a life
3 estate, correct?
4 A Correct.
5 Q So they could not have signed off on a
6 contract saying there were no liens, no tenants and so
7 forth on the property, could they, to enter into a
8 contract to sell it?
9 A Well, with Mrs. Wade living in her house,
10 practically I can't see how you could do that.
11 Q So again just smoke and mirrors?
12 A I would agree.
13 Q In your representation of Edell Wade in doing
14 her will, power of attorney, HIPAA documents and the
15 modification, was it ever your understanding that you
16 were representing anyone other than Edell Wade?
17 A No.
18 Q Now, I don't know if Mr. Richie has ever
19 practiced law in a small town, but you said at the
20 beginning that you have represented whatever walks in
21 the door. You mentioned criminal cases for instance.
22 So in representing criminal cases you have somebody
23 that's 17, 18 years old. Is it odd for them to come in
24 with a relative?
25 A No.
84
1 Q Is it odd for you to put the contact
2 information for that relative in your file?
3 A Certainly not.
4 Q Is it odd for you to send the bill to the
5 relative?
6 A No.
7 Q Is it odd for you to send correspondence to
8 the relative?
9 A No. Especially criminals frequently don't
10 have an address you can use anyway.
11 Q Sure. Now, does any of that change who your
12 actual client is?
13 A No.
14 Q So just because you're talking to a parent or
15 a grandparent and you're calling the parent or the
16 grandparent and you're sending the correspondence to the
17 parent or the grandparent, your client is still the kid,
18 right?
19 A Of course.
20 Q And isn't that similar to a situation to where
21 you may be doing work for someone who is older?
22 A Very common to be in that situation.
23 Q So if we're dealing with someone who's 80
24 years old or above and they live on the same property
25 with the child, or a grandchild for that matter, would
85
1 it be uncommon for you to have that child or
2 grandchild's contact information in your file?
3 A No.
4 Q Would it be odd for you to deliver the
5 documents to the child or grandchild?
6 A No.
7 Q Would it be odd for you to contact or have
8 communications with that child or grandchild?
9 A No.
10 Q Would it be odd for you to send the bill to
11 the child or grandchild?
12 A No.
13 Q Does any of that change the fact that the
14 older person involved is actually your client?
15 A Not in my opinion.
16 Q And at the end of the day, and upon his
17 question and you agreed, that you as the attorney had a
18 fiduciary duty to Edell Wade?
19 A Yes.
20 Q And can you explain to this jury what that
21 means, what your duty was for Edell Wade?
22 A Well, I think I owed her a duty to look out
23 for her business just plainly stated, and, you know, if
24 I thought someone was trying to take advantage of her,
25 I think I would have needed to have told her and would
86
1 have.
2 Q In this instance did you ever tell her that
3 you thought someone was trying to take advantage of her?
4 A No.
5 Q Now, as far as all these documents and all
6 these questions about how we came up with the number and
7 where the interest came from or whatnot, your file
8 clearly shows that you had communication with Lori
9 Graham, correct?
10 A Right.
11 Q And in your file I believe you have some line
12 items where you say, Communication with client. And
13 then separate from that you have some lines that say,
14 Communication with Amanda. Right?
15 A Yes.
16 Q That distinction of having lines that say,
17 Communication with client, versus lines that say,
18 Communication with Amanda, would show that you never
19 viewed Amanda as your client in that case, right?
20 A True.
21 Q And in your drafting of the documents does it
22 really matter who communicates numbers to you?
23 A No. It looked like to me that it was kind of
24 a joint project so I wasn't particularly concerned
25 knowing that they were going to get to read it over and
87
1 come sign it, and if either side didn't like it they had
2 every opportunity to say so.
3 Q Now, obviously you can't represent both sides
4 in that, right?
5 A Correct.
6 Q And were you ever representing both sides?
7 A I felt like I was representing Edell Wade.
8 Q Okay. Now, in your 42 years of practice how
9 odd is it for an older person to just flat give property
10 to a kid?
11 A It's quite common.
12 Q And so in fact, I mean the numbers really
13 don't even matter, do they?
14 A Well, I could tell they had a close enough
15 relationship that I didn't think anyone was trying to
16 get it down to the gnat's ear and would have been
17 surprised if they were. I really didn't know what was
18 going on. It changed two or three times. I really
19 didn't know and hoped that with the accountant they
20 would work it out to where everybody was happy and the
21 IRS hopefully would be happy.
22 Q I'm sorry. Go ahead.
23 A And I didn't see any particular reason for me
24 to get into that discussion especially in a family deal.
25 I didn't imagine they wanted my input.
88
1 Q Is your job as a lawyer, when somebody comes
2 into your office, is your job to tell people what other
3 people normally do or is your job to do what they want?
4 A I think it's to do what they want. Nobody
5 asked me should they do it. They came and said they're
6 doing it.
7 Q Have you ever drafted a will that left
8 property to a charity?
9 A Sure.
10 Q Have you ever drafted a will that left
11 property to a charity or excluded a child?
12 A Yes.
13 Q Is it your job to tell them they can't exclude
14 a child?
15 A No.
16 Q Is it your job to tell them they need to leave
17 their property to one child or another?
18 A No.
19 Q Is it your job to tell them that they need to
20 charge interest or that they need to not reduce
21 principal?
22 A No. And the only reason I would discuss the
23 interest is like I would want them to be aware that the
24 IRS may penalize them.
25 Q Right. And then you were asked questions
89
1 about 1099s and you were asked questions about estate
2 tax returns and those sorts of things. Do you generally
3 send out 1099s?
4 A I never do.
5 Q Never have?
6 A Never.
7 Q Do you generally file estate tax returns?
8 A We did file estate tax returns, yes.
9 Q Is that something that you require any time
10 you have some sort of transaction that might involve an
11 estate tax return?
12 A Is what required?
13 Q Well, what I'm saying is if somebody comes in
14 and they want to do any type of transaction, I mean,
15 you're not under any duty to file their estate tax
16 return; are you?
17 A Oh, no.
18 Q Okay. Ultimately that decision is left up to
19 the client, isn't it; whether or not they file an estate
20 tax return?
21 A Well, yeah. I mean, you may be obligated by
22 law to file one but whether they actually do it, they
23 don't want to do it, that's kind of their business.
24 Q Right. That's my point. You're not, as the
25 attorney, obligated to do anything?
90
1 A No.
2 Q And so sometimes you have people who you tell
3 them this may be an estate tax or a gift tax event, but
4 ultimately they're the ones who decide whether or not
5 they're going to file a return?
6 A Correct.
7 Q And if we pare this down, I mean, you worked
8 for Edell Wade starting back in 2007, correct?
9 A Correct.
10 Q So you doing the modification wasn't like the
11 first time you ever met her, right?
12 A No.
13 Q And I believe you said earlier she was clearly
14 lucid?
15 A Yes.
16 Q Or very lucid or something along those lines?
17 A Yes, sir.
18 Q Didn't have any concerns that she was under
19 duress?
20 A No.
21 Q Didn't have any concerns that she was out of
22 her right mind?
23 A Not at all.
24 Q Didn't have any concerns that she wasn't doing
25 exactly what she wanted to do?
91
1 A No concern at all.
2 Q In fact, if you did, based on what you told
3 this jury about your fiduciary duty you wouldn't have
4 participated; would you?
5 A That's true.
6 Q You had an active practice, right?
7 A I did.
8 Q Did you need her $200 or $300 to make ends
9 meet?
10 A No. And certainly don't want to get involved
11 in a squabble like that for some pittance.
12 Q So any of your communications, whether they
13 were with Lori Graham, Amanda Wade, Edell Wade, Johnny
14 Wade, no matter who relayed the information you always
15 felt like what you were doing was what Edell wanted,
16 correct?
17 A That's correct.
18 Q Because she was your client?
19 A Right.
20 Q Now, you were asked some questions about
21 paragraph 25 of the prior power of attorney that Edell
22 gave to Nancy, and I believe it had something about
23 talking to some of the other siblings?
24 A Yes.
25 Q Now, at the time that was entered Johnny and
92
1 Amanda still lived in California; didn't they?
2 A I really don't know.
3 Q If I --
4 A I assume so. My vague recollection of when
5 they came back I believe it was right.
6 Q Couldn't you also gain from that that Edell
7 really didn't trust Nancy and that she wanted her to
8 communicate with the others because she didn't have full
9 trust in her?
10 MR. RICHIE: Your Honor, objection.
11 Calls for speculation.
12 THE COURT: If you know from discussions
13 with your client you may answer that question. If you
14 don't, then I'll sustain the objection.
15 A I don't have any knowledge of that.
16 THE COURT: All right. I'll sustain the
17 objection.
18 Q (By Mr. Stubbs) As far as the sale of the
19 ranch is it your understanding that Edell was the owner
20 of that property whenever the sale took place?
21 A Yes.
22 Q She wasn't a co-owner; was she?
23 A Not to my knowledge.
24 Q And at that time did any of her kids have any
25 legal interest in that property?
93
1 A I don't believe so.
2 Q So had she, instead of selling it to one of
3 her kids and keeping it in the family, had she decided
4 to sell it to the neighbor, could she have done that?
5 A Sure.
6 Q Did she have to get permission from her kids?
7 A No.
8 Q Did she have to tell the kids?
9 A No.
10 Q Did the kids have any say in what the terms
11 would be?
12 A No.
13 Q She could have sold it for cash. She could
14 have sold it on a note. She could have just given it to
15 the neighbor; couldn't she?
16 A True.
17 Q You were asked some questions about the
18 various powers of attorney and one was filed and one
19 wasn't filed, whatnot. There's no legal requirement
20 that a power of attorney be filed; is there?
21 A That's correct.
22 Q And you can file one of record if you choose
23 to, but you don't have to, correct?
24 A Right.
25 Q All these questions about whether or not you
94
1 communicated directly with Edell while the documents
2 were being proven up, you ultimately were perfectly
3 comfortable that she knew what the documents said, she
4 knew what the documents meant and it was what she wanted
5 to do when she signed them, correct?
6 A That's true.
7 Q Now, Mr. Richie made a big deal about, Well, I
8 just got this file today and so forth. I believe that
9 he requested to take your deposition back in May. Does
10 that sound accurate?
11 A It does.
12 Q And in his request we made the legal decision
13 that we felt like he was asking for stuff outside what
14 all was allowed. And ultimately we filed a motion for a
15 protective order.
16 MR. RICHIE: Your Honor, can we approach?
17 THE COURT: Yes.
18 (The following was in the presence but
19 out of the hearing of the jury.)
20 MR. RICHIE: This is a clear violation of
21 the motion in limine. We're not supposed to talk about
22 motions with the Court and orders from the Court. They
23 never set their motion for protection. I never got an
24 order.
25 THE COURT: Well, the door was open when
95
1 you asked this lawyer certain questions about the file
2 and not being able to receive the information he was
3 instructed not to deliver. I think they have the right
4 to cross examine.
5 MR. RICHIE: Sure.
6 (The following was in the presence
7 and hearing of the jury.)
8 Q (By Mr. Stubbs) Mr. Martin, what I was talking
9 about was back in May when Mr. Richie asked to take your
10 deposition and he sent you documents telling you that
11 you had to come to the deposition and you had to bring a
12 bunch of stuff with you. Now, in that we felt like he
13 was asking for more than what was allowed, and we filed
14 what is called a motion for protective order. And do
15 you remember getting a copy of that?
16 A I'm not sure.
17 Q Okay. Well, I'll just represent to you that
18 we did file that motion.
19 A Okay.
20 Q And my recollection prior to you going to the
21 deposition was that I did not want you to take any of
22 Johnny and Amanda's personal files and I believe that
23 Ms. Allen was there as well. Is that in line with your
24 recollection for the most part?
25 A Yes.
96
1 Q And so I believe also in your deposition you
2 were very clear with Mr. Richie and you said you would
3 be happy to produce it with a Court order, referring to
4 various documents?
5 A Yes.
6 Q Do you possess that memory?
7 A Yes.
8 Q Did you ever receive anything from Mr.
9 Richie's office after that time?
10 A Not to my recollection.
11 Q Is it possible that you had some confusion
12 about what you were supposed to bring and what you
13 weren't supposed to bring
14 A Certainly possible
15 Q But obviously at that time you still had an
16 attorney/client privilege with Johnny and Amanda Wade as
17 for work you did for them, correct?
18 A Yes.
19 Q And you still had an attorney/client privilege
20 with Edell Wade or the Estate of Edell Wade, correct,
21 for the work that you had done for Edell?
22 A Well, she was dead. So I don't know that I
23 had it with Edell, but I would have with the estate I
24 guess.
25 Q Well, if I came in and asked you about someone
97
1 that you had done work for who has now passed away, I
2 can't just come in and look at your file; can I?
3 A No.
4 Q I mean, there's still some level of privilege
5 there where you're not authorized to just release that
6 information, right?
7 A Right.
8 Q You were asked something about some documents
9 previously being sent to the County Road address where
10 Edell and Johnny and Amanda lived and then later some
11 documents went to the hardware store address?
12 A Yes.
13 Q Because someone had run over their mailbox?
14 A Could be.
15 Q Well, if the evidence showed that someone ran
16 over their mailbox --
17 A Certainly possible.
18 Q And I mean there wasn't anything egregious or
19 evil about trying to send that to the hardware store,
20 was it?
21 A No. I just wanted to be sure that she got it.
22 Q And you knew that Johnny and/or Amanda would
23 make sure she did?
24 A Right. I knew where I could find them.
25 Q Then you were asked some questions about some
98
1 paragraphs in some various documents and I believe you
2 mentioned to Mr. Richie that you thought those might be
3 Pro Doc forms. Can you tell this jury what Pro Doc
4 forms are?
5 A It's a computerized set of legal documents
6 that was promulgated by a company here for use on
7 computers where you can insert different names,
8 addresses, et cetera, et cetera, just kind of streamline
9 preparation of documents.
10 Q In effect are those just standardized forms
11 for the most part?
12 A Yes.
13 Q So when you use standardized forms in your 42
14 years of practice have you ever inadvertently left a
15 paragraph in that didn't apply?
16 A Well, many, many times there are many
17 paragraphs that don't apply that nobody much worries
18 about because it's more trouble to take them out than to
19 leave them in, as long as they're not harmful.
20 Q Have you ever inadvertently had a paragraph
21 that didn't get into the document even though you
22 intended it to?
23 A Yes.
24 Q You were asked some questions about your
25 amortization schedule and I still don't know what
99
1 they're trying to make a point with on that, but your
2 amortization schedule doesn't have -- did not take into
3 account the $150,000 payment that was made by Johnny and
4 Amanda; did it?
5 A No, and I don't know that I knew about that.
6 I don't know that they mentioned it. And I might say on
7 the amortization schedule I probably told my secretary,
8 Take this note and go run an amortization schedule on
9 it, without much other input just to give me a place to
10 kind of start. So I didn't intend for it to be a
11 finished product.
12 Q It wasn't any part of a thought-out scheme to
13 try to deceive anybody; was it?
14 A No.
15 Q In fact, the loan date was 2004 instead of
16 2006, and it didn't include the zero percent interest
17 for a period of time?
18 A I'm sure my secretary did the best she could.
19 That's what I got back.
20 Q Okay. Along those lines I think I understood
21 your testimony to be when we were trying to figure out
22 what the correct principal amount was for the
23 modification, it could have been any number that got put
24 in there so long as Edell agreed to it, right?
25 A Yes.
100
1 Q And so long as that's what she wanted?
2 A Correct.
3 Q And I believe your notes show that you had
4 multiple communication with Lori Graham, and Mr. Richie
5 is trying to say that didn't happen.
6 A Yes, sir.
7 Q And are you comfortable that you talked to
8 Lori Graham?
9 A Oh, I know I talked to Lori Graham.
10 Q If you have an older person who wants to give
11 property to just -- an easiest example is a child.
12 Wouldn't it be proper to simply say there's no benefit
13 to the older person; is there?
14 A Well, emotional benefit is the benefit I would
15 see.
16 Q So there is clearly a difference between a
17 financial benefit and an emotional benefit?
18 A Certainly.
19 Q And in your 42 years of practice is it odd for
20 someone to give up a financial benefit in exchange for
21 the emotional benefit of knowing they're helping their
22 kid?
23 A No.
24 Q Happens every day?
25 A Happens every day.
101
1 Q You were asked these questions about the
2 actual probate of the will and Mr. Richie tried to imply
3 that somehow you had done something wrong, although he
4 said, No, I'm not saying you did anything wrong. The
5 fact is there is no legal requirement to send anyone
6 notice that you filed an application to probate a will;
7 is there?
8 A There is not.
9 Q Can you tell the jury what happens, just as a
10 general sense, when -- if I come in your office and I
11 say, My dad passed away. Can you tell the jury just
12 logistically how that process starts?
13 A Well, initially we would do an application to
14 probate, get it signed by the person who is the
15 applicant, usually also the executor. We would
16 accompany that with a check, send it and the original
17 will and the application to the County Clerk. In this
18 instance, Burnet County. The Clerk would post notice on
19 the county bulletin board that an application for
20 probate had been filed. In roughly two weeks there
21 would be a probate hearing, which is usually a very
22 simple, brief matter where the Court hears testimony
23 about when the decedent died, where they died and so
24 forth. The Court usually then signs the order on the
25 same day. The Clerk files it. We send out notices to
102
1 the beneficiaries to notify them that they are a
2 beneficiary. We then work on the inventory, usually get
3 with the executor and find out what property the
4 decedent owned, what it's worth. Usually some back and
5 forth about the value of properties and that sort of
6 thing.
7 Once we've got that nailed down, within at least 90
8 days you're supposed to file the inventory, get that
9 signed by the executor, send it to the Burnet County
10 Clerk, in this instance with an order. The Court will
11 review it, sign the order usually approving the
12 inventory. Once that's done you go about paying any
13 debts that are outstanding. And frequently with elderly
14 folks like this, there are not debts. Would then go
15 about distributing the assets to the beneficiaries of
16 the will. And once all of that is done, we typically
17 would get a release from the beneficiaries that they've
18 been paid their proper amount and they were happy with
19 it. And that would be the end of the process.
20 Q So all the questions you were asked, you
21 didn't send notice. Nowhere in the legal requirements
22 is it that you're -- I mean, you're not supposed to send
23 notice; are you?
24 A Well, nothing requires it and we hardly ever
25 did, although I would frequently ask an executor, you
103
1 know, do you want me to write Uncle Bill and tell him he
2 got the car, or you know, if they said yes, I did. If
3 they said no, I didn't.
4 Q And ultimately right after Amanda was
5 appointed as the executrix of this estate you notified
6 everyone just as you normally would, correct?
7 A Right.
8 Q You did everything just the same as you would
9 if I came in or anybody else came in?
10 A That's true.
11 Q Now, as far as that document goes, that will,
12 it had in it an in terrorem clause. Are you familiar
13 with that?
14 A I am.
15 Q Will you tell this jury what an in terrorem
16 clause is?
17 A Well, it's a clause that people sometimes
18 insert to disinherit anyone who contests the will. Some
19 folks are concerned that one of their children, kinfolk,
20 whoever is a beneficiary, will be unhappy with the will
21 and will want to contest it on whatever grounds, and the
22 in terrorem clause --
23 MR. RICHIE: Let me interrupt. I'm
24 sorry, Mr. Martin.
25 May we approach, Your Honor?
104
1 (The following was in the presence but
2 out of the hearing of the jury.)
3 MR. RICHIE: I'm going to object to him
4 asking this witness about an in terrorem clause and
5 interpreting it when this was already ruled on summary
6 judgment that the in terrorem clause is not implicated
7 in this matter in any way, shape or form.
8 MR. DUCLOUX: That wasn't the ruling.
9 MR. RICHIE: It was. He granted summary
10 judgment.
11 MR. DUCLOUX: Yeah. He denied summary
12 judgment, so --
13 MR. RICHIE: Excuse me, you're right.
14 MR. DUCLOUX: We're allowed to have him
15 explain it. He was used as an expert. We're just
16 explaining what it is that shows her motivation that she
17 put this in the will so that these people didn't fight.
18 MR. RICHIE: We didn't contest this one.
19 THE COURT: Well, the will has been
20 admitted to probate. The will contains the in terrorem
21 clause. I think either one of you all would have the
22 right to go into the contents of the will and discuss
23 this term and what the legal implications are.
24 MR. RICHIE: But I think it's very
25 important if they are going to ask this witness whether
105
1 or not the filing of this lawsuit invokes that in
2 terrorem clause --
3 MR. STUBBS: I'm not going to ask that.
4 MR. RICHIE: That invades the province of
5 this Court.
6 MR. STUBBS: I have no intention of
7 asking that.
8 MR. DUCLOUX: It just shows her mental
9 state. We're not asking about --
10 THE COURT: Limit the inquiry to only
11 what an in terrorem clause is.
12 MR. STUBBS: Yes, sir.
13 MR. RICHIE: Thank you.
14 (The following was in the presence and
15 hearing of the jury.)
16 Q (By Mr. Stubbs) Mr. Martin, I apologize
17 exactly where you were in explaining to this jury what
18 the in terrorem clause does and the fact that there was
19 one in Edell Wade's will that you prepared for her back
20 in whatever year that was, several years before her
21 passing. Can you continue with your explanation,
22 please.
23 Q I think I was saying some people put that in
24 their will so that if one of the beneficiaries is badly
25 unhappy and wants to contest the will based on
106
1 incompetency of the decedent or undue influence or
2 whatever, that they're at risk of getting nothing if
3 they lose. So it kind of makes it risky to contest it.
4 Q So in a general sense the purpose is to
5 hopefully prevent a fight?
6 A Yes.
7 Q In fact, Edell Wade had that in the will that
8 she asked you to prepare for her?
9 A Yes.
10 Q Now, in your 42 years of practice you've done
11 wills for people who had real estate, done wills for
12 people who didn't have real estate. You've done, I'm
13 assuming, you've done wills for people who have families
14 where everyone got along and you've done wills for
15 families that didn't; is that accurate?
16 A Accurate. Yes.
17 Q Is real estate sometimes one of the assets
18 that is really hard to split up if your family doesn't
19 get along?
20 A Yes.
21 Q And so if you can convert that real estate
22 into cash is it easier to split
23 A It is.
24 Q And is that basically just because it's hard
25 to value, it's hard to draw lines, it's hard to put
107
1 fences, hard to get people to agree?
2 A Right. Access, all sorts of things make real
3 property hard to divide.
4 Q So if you had someone who thinks that there
5 may be a fight between their kids or that they don't get
6 along, is liquidating the real estate and selling it and
7 converting it into either cash or a note or some sort of
8 tangible something that can be split evenly, is that a
9 common practice?
10 A I'd say so.
11 MR. STUBBS: Your Honor, if I could have
12 just a moment to go over my notes.
13 Q (By Mr. Stubbs) Mr. Martin, just to make sure
14 that it's accurate and clear to this jury, you never saw
15 any indication that Edell Wade suffered from any mental
16 issues; did you?
17 A I did not and I saw her, say in the hardware
18 store after whatever the last dealings were I had with
19 her with some of her family, I believe it was family.
20 And she was getting around good, looked normal and
21 seemed to be doing fine.
22 Q You don't owe Johnny and Amanda anything in
23 this case; do you?
24 A Unless I owe a bill at the lumber yard -- I
25 mean the hardware store. I'm not sure if I do or not.
108
1 Q But you don't have -- you're not out to take
2 one side or the other. You simply want this jury to
3 know what you know, correct?
4 A That's correct.
5 Q And Edell was your client; it wasn't Johnny or
6 Amanda, right?
7 A True.
8 Q And everything you did you're comfortable that
9 that's what Edell wanted?
10 A I am comfortable.
11 MR. STUBBS: I'll pass the witness.
12 MR. DUCLOUX: I have a few questions on
13 the probate, and as you said this morning I can ask
14 those questions.
15 THE COURT: All right. Limit your
16 questions to probate.
17 CROSS EXAMINATION
18 BY MR. DUCLOUX:
19 Q Mr. Martin, I am the attorney for Amanda in
20 her capacity of probate, so let me just ask you a few
21 more questions and I'll be done with you in five or six
22 minutes.
23 You have told us -- let me show you what's been
24 marked as Defendant's 8, 9 and 10. Eight is a copy of
25 all of your letters, aren't they, to the heirs?
109
1 A Looks to be, uh-huh.
2 Q And that's where you tell them the probate is
3 in session, you give the number, who the executor is, et
4 cetera?
5 A Correct.
6 MR. DUCLOUX: Offer Defendant's Exhibit
7 8.
8 MR. RICHIE: No objection, Your Honor.
9 THE COURT: Defendant's Exhibit 8 will be
10 received into evidence.
11 MR. DUCLOUX: May I approach, Your Honor?
12 THE COURT: You may.
13 Q (By Mr. Ducloux) And then when you filed the
14 sworn inventory, that's not the end of it. The Judge
15 has to approve that inventory?
16 A Certainly.
17 Q And does that happen with an order?
18 A Yes.
19 Q And under the law you have to do that within
20 90 days?
21 A Correct.
22 Q And even if there is an amendment it still has
23 to be done within 90 days unless it's something you
24 couldn't know about, right?
25 A Right.
110
1 Q So on this you actually had a court order
2 signed. I'm going to show you Defendant's Exhibit 9.
3 Does that appear to be a true and correct copy of the
4 Court's order?
5 A It does.
6 Q Let me show you No. 10. When you amended it,
7 you had the phone call and I don't know who it was, but
8 somebody said, Wait a minute, that cash has to be in
9 there.
10 A Right.
11 Q And both of those were approved by the Judge,
12 weren't they?
13 A They were.
14 MR. DUCLOUX: These are court orders.
15 I'm offering Defendant's Exhibits 9 and 10 being the
16 orders of October 5th and November 23rd.
17 THE COURT: Give them to counsel.
18 MR. RICHIE: No objection.
19 THE COURT: All right. Defendant's
20 Exhibits No. 9 and 10 will be received into evidence.
21 Q (By Mr. Ducloux) Now, as to attorney for the
22 estate, after that date did you receive any notice of
23 challenge to one penny that was on those inventories?
24 A No.
25 Q Did Amanda follow your instructions in
111
1 administering this estate?
2 A Yes.
3 Q Did she take her job very seriously?
4 A It seemed to me she did.
5 Q Did she get you information on a timely basis?
6 A She did.
7 Q Did she consult with you if she thought there
8 was an error on anything?
9 A Yes.
10 Q Did she ask your advice on making sure it was
11 done correctly?
12 A I believe so.
13 Q Let me also say in her capacity as executor,
14 we call everybody executor now, don't we. In her
15 capacity she and Johnny had this executory contract,
16 this contract to buy the land. Does Texas law allow an
17 executor to complete the purchase of something from the
18 decedent?
19 A Yes.
20 Q In fact, that's written in the law. It
21 doesn't violate the law or create a conflict of interest
22 for her to continue to make the payments even though
23 she's serving as the independent executor?
24 A Correct.
25 Q Just two or three questions generally about
112
1 estate planning in this case. We normally, as I told
2 the jury yesterday, those of us who do general practice
3 do four things for everybody. We do a will, power of
4 attorney, medical power of attorney and directive. Is
5 that the typical package you would see typically in the
6 State of Texas?
7 A It is.
8 Q And what you have in Edell Wade's file is that
9 typical package; isn't it?
10 A It is.
11 Q Is there anything unusual or abnormal about
12 the estate planning of Edell Wade?
13 A I would say it's just run-of-the mill typical.
14 Q Did you see or notice or advise Amanda at any
15 time that she was doing something improper in her
16 capacity as the executor of the estate?
17 A No.
18 Q Did you ever see or notice anything suspicious
19 or diabolical about this estate?
20 A No. I don't know if I know what a diabolical
21 estate is. It seemed pretty normal to me.
22 Q Okay. And then my last question is you were
23 asked some questions about after she was serving whether
24 they were in default, if somebody makes two payments in
25 a row ahead of time, they're not in default the next
113
1 month; are they?
2 A You mean if they skip --
3 Q No. Let's say I owe you a thousand dollars a
4 month. I'm going to be out of town so this month I'm
5 sending you $2,000. So the next month --
6 A No, no.
7 Q You don't understand, do you, how much Johnny
8 and Amanda have paid towards this note over time?
9 A I don't know.
10 Q In fact, they could be way ahead of the
11 original schedule?
12 A Could have paid it off for all I know.
13 Q Right. So you were just saying generally
14 there could be a default without knowing the specifics
15 of this case?
16 A Correct.
17 Q So you're not trying to say that you have made
18 a judgment in this case that there is any sort of
19 default under either the original note, the modification
20 or anything like that?
21 A I don't know anything about any defaults.
22 Q Were you asked to investigate whether there
23 were any defaults?
24 A No.
25 MR. DUCLOUX: I think that's all the
114
1 questions I have.
2 THE COURT: Redirect?
3 MR. RICHIE: Yes, sir.
4 REDIRECT EXAMINATION
5 BY MR. RICHIE:
6 Q If in fact there is an executor and there's a
7 note and there have been payments skipped or there have
8 been payments that have been made but they are below
9 what is required under the note, is the executor
10 required to enforce that note and declare a default?
11 A I don't know that they're required. I would
12 think they're certainly entitled to in their judgment if
13 that's the proper course of action to protect the
14 estate.
15 Q If there were an event of skipped payments,
16 for example, or late payments or a modification that
17 shouldn't have taken place and the executor is the same
18 person as the maker of the note, wouldn't that executor
19 then have a conflict of interest with respect to the
20 enforcement of the original note? That would be a
21 conflict; wouldn't it?
22 A Well, I would say it would be a problem, yes.
23 Q So let me now talk about this question of who
24 was your client.
25 MR. RICHIE: And I apologize, Judge. I
115
1 need to get up.
2 Q Let me show you -- you might check your own
3 file, it might be the easiest. It's from Exhibit 38 and
4 I'm going to ask you, please, I want you to look at in
5 your file if you don't mind and I'm going to show you
6 what I'm looking at. We went over this earlier but
7 there was a file for Edell Wade in 2007 and that file
8 had on it the file number.
9 A Yes.
10 Q And that file number was unique to Edell Wade?
11 A Yes.
12 Q And you could have used that same category of
13 file numbers in 2009, right?
14 A Yes.
15 Q But you didn't?
16 A Yes.
17 Q And your file says Johnny and Amanda Wade are
18 the clients?
19 A Yes.
20 Q And then you were asked by Mr. Stubbs, Well,
21 isn't it true that really even though you put that on
22 the file you're really representing Edell Wade. I'm
23 gong to show you your payment ledger in the file. Who
24 paid for the modification work?
25 A It says it was paid for by Amanda Wade.
116
1 Q And who does it show as the client on that
2 money ledger that shows who's paying?
3 A Johnny Wade, et ux.
4 Q That would be Amanda?
5 A Correct.
6 Q Then if we go back to the file contents, Mr.
7 Martin -- and again I apologize for standing over you,
8 but there is a transmittal in here where your office
9 sends some paper work to Johnny and Amanda. And I'm
10 trying to go fast because I want to end and get
11 everybody out of here today like the Judge suggested.
12 Or maybe he just wants me out of here. In any event,
13 here's this little slip of paper and I need to show the
14 jury what it looks like. Who's it addressed to?
15 A Mr. And Mrs. Johnny Wade.
16 Q Is it you -- are you the author of this?
17 A Yes.
18 Q And you say, Enclosed are the copy of the
19 recorded modification agreement, the original of which
20 has been sent to Edell Wade and your file regarding this
21 matter which you left with us. That's what it says;
22 doesn't it?
23 A Uh-huh.
24 Q And that's what you sent them was Johnny and
25 Amanda's file; didn't you?
117
1 A Uh-huh.
2 Q I mean, it's pretty clear that you were
3 representing Johnny and Amanda Wade. That's what your
4 file says and that's what your letters say and your
5 billing says. And I know that you want to tell us that
6 you weren't, but that file has Johnny and Amanda Wade's
7 name on it; doesn't it?
8 A It does. What I would say about that is
9 especially in a family situation I wasn't real careful
10 about exactly whose name went on the file and in view of
11 the fact that I had done this other work for Mrs. Wade I
12 felt like I was obligated to see that I did what she
13 wanted done. And I think I did what she wanted done.
14 Q And Mr. Stubbs asked you with older people
15 that's sometimes the way you communicate, with their
16 family members?
17 A Yes.
18 Q In 2007 you opened a file with Edell Wade's
19 name on it, Exhibit 88. She was 92 years old?
20 A I'm surprised, but I'm sure that's right.
21 Q That's old, isn't it? It's older than me.
22 A It's a little older than me.
23 Q And in it one of the first things is a letter
24 to Edell Wade, not Johnny, right?
25 A Right.
118
1 Q You could have opened the file in Edell Wade's
2 name, sending Edell Wade the correspondence and
3 communication. You just told us that after all of this
4 was done -- so this would be before -- 2009 would be
5 before you saw her in the hardware store and she was
6 getting around just fine; wasn't she?
7 A Yes.
8 Q I don't know if you know the answer to this,
9 but if you do help me out. We were talking about
10 fiduciary relationships earlier, do you know under Texas
11 law whether a fiduciary relationship can exist in the
12 context of a family relationship where a mother for
13 example places trust and confidence in her son to take
14 care of her financial issues and health issues?
15 A I'm sure it can, sure.
16 Q That can happen, can't it?
17 A Yes.
18 Q And you told me earlier that it looked like
19 when you met with Johnny and his mom and Amanda, it
20 looked like she was placing trust and confidence in
21 Johnny and Amanda?
22 A They seemed to be getting along great.
23 Q She was placing her trust and confidence in
24 them?
25 A Or vice -- I guess that's why she brought them
119
1 along.
2 Q Had power of attorney in Amanda's name, right?
3 A Uh-huh. Yes.
4 Q Named Amanda and Johnny in the will as heirs?
5 A Sure.
6 Q And Amanda as executor?
7 A Yes.
8 Q But Amanda on healthcare directive?
9 A Yes.
10 Q That was trust and confidence?
11 A Yes.
12 Q You had some notes in that 2007 file from your
13 first meeting. We kind of agreed that must have been
14 around January 9th of '07 and you're writing notes about
15 what Mrs. Wade wants in her estate planning. May I take
16 this from you?
17 A Yes.
18 Q You don't see anything in there about a gift;
19 do you?
20 A No.
21 Q Because she didn't mention that, that she
22 wanted to make a gift; did she?
23 A No.
24 Q In fact, she didn't make a gift?
25 A No.
120
1 Q Mr. Stubbs asked you did it really matter to
2 you what the principal balance was on the note, and you
3 said you wanted to hit within a gnat's ear and that's
4 why you were doing an amortization schedule; do you
5 remember that?
6 A I think what I said was I didn't think they
7 wanted to get it within the gnat's ear, and I didn't.
8 Q Did you have any idea what they wanted to get
9 it within?
10 A Well, not really. They were going to change
11 it and I was just waiting for them to tell me how they
12 wanted to change it.
13 Q You really don't know what Mrs. Wade was
14 trying to do with respect to those changes other than
15 what you wrote in your notes, and remember we saw that
16 as disjunctive. There was going to be an interest
17 reduction or --
18 A Right. Whether they adhered to that or not I
19 don't know.
20 Q But you do recall when you wrote the
21 modification you took the time to write in bold, This is
22 about interest only.
23 A Right. I wanted to make that clear. And it
24 may have been my mistake. I may not have remembered at
25 that time that they even talked about reducing the
121
1 balance. And to this day I don't know if or how much
2 they reduced it.
3 Q And that's not what you thought you were
4 doing?
5 A No.
6 Q You were reducing the interest to zero?
7 A That's -- at this point that's all I can
8 remember.
9 Q Does $50,000 sound quite a substantial amount
10 of money when it's compared to $400,000?
11 A Yes.
12 Q Do you remember that math that I did with you
13 a minute ago?
14 A Yes.
15 Q If your secretary got it right, that note debt
16 was at $426,000 is where she started?
17 A Something like that.
18 Q And you're right at -- the modification was a
19 hundred twenty -- that's a $200,000 difference. That's
20 not a gnat's ear; is it?
21 A No.
22 Q That ain't close to a gnat's ear. Right?
23 A That's correct.
24 Q You were asked did I do anything more after
25 May to try to get your file. I subpoenaed you here
122
1 today; didn't I?
2 A Yes.
3 Q And I came before then with a court order to
4 instruct you to ignore them and to bring me the file;
5 didn't I?
6 A I don't know anything about that.
7 Q Did you bring the file?
8 A Yes.
9 Q Were you ordered to bring it?
10 A I was subpoenaed three times to bring it.
11 Q So Mr. Stubbs didn't tell you that the judge
12 instructed him to tell you to bring that file?
13 A Yes.
14 Q And you know that's the first time I've seen
15 that file is this morning?
16 A I don't know.
17 Q Well, you didn't get it to me; did you?
18 A To be honest, at the deposition I don't know
19 what I've given copies of to Mr. Stubbs. I don't know
20 what I gave to Don Walden.
21 Q Mr. Stubbs wanted to ask you about the in
22 terrorem clause in the will, the don't-fight-with-me
23 clause. In your notes of 2007 you don't see anything in
24 there about Mrs. Wade telling you she's worried about a
25 dispute among her children; do you?
123
1 A That's correct.
2 Q It's correct that she did not say that?
3 A That's correct.
4 Q Let me show you the will.
5 A It may have gotten set aside.
6 Q 88-B. Would you look at 88-B.
7 A Okay.
8 Q And would you look at what is known as the in
9 terroreum clause. Tell me when you've seen that.
10 MR. RICHIE: Would you put up the will,
11 please, Ms. Stevenson, and go to paragraph 6-C on page
12 2.
13 Q (By Mr. Richie) That in terrorem clause is
14 that just kind of a standard in terrorem clause that's
15 not unique to her will. It's one that you would put
16 into anyone's will, right?
17 A True.
18 Q It doesn't say anything about ranch sale; does
19 it?
20 A Huh-uh.
21 Q Doesn't say if anybody contests the ranch sale
22 that that would be a problem?
23 A No.
24 Q You could have put that in there, right?
25 A If they told me to.
124
1 Q And they didn't. And it didn't say anything
2 about a note, a promissory note, a contest on a note?
3 A Correct.
4 Q But you could have put that in there?
5 A Sure.
6 Q And just as you said if they had told you to?
7 A Right.
8 Q And they didn't?
9 A No.
10 Q Not Johnny Wade, not Amanda Wade, but most
11 importantly not Edell Wade, correct?
12 A Right.
13 Q That clause has to do with contesting the
14 will; doesn't it?
15 A Yes.
16 Q Do you know whether or not this is a will
17 contest? I will represent to you it is not. Nobody has
18 challenged the will.
19 A I won't argue with you.
20 Q In fact, my client, Nancy Burns and others,
21 they actually want the estate to have more money in it
22 so they would get more under the will. That's what this
23 suit is about; isn't it?
24 A I'm really not involved in the suit. I
25 haven't looked at your pleadings.
125
1 Q All right. Fair enough.
2 MR. RICHIE: Give me one minute, Judge.
3 I'm close.
4 Q (By Mr. Richie) I'm sorry. I've been
5 practicing 43 years and I graduated the same year you
6 did, but you're retired and I'm not and I'm jealous.
7 In all that time, in all the work you've done, have
8 you ever seen a 32 year old -- I'm sorry, an 89 year old
9 seller take a 32 year note to finance the sale of real
10 estate?
11 A You know, I have no idea. I have seen a
12 number of people including myself take notes that I
13 never ever hoped to live to collect, if that's what you
14 mean.
15 Q I want to know in your estate planning work,
16 your real estate work, do you recall any other situation
17 where an 89 year old received a 32 year 2% interest
18 note?
19 A I can't point you to any but I'm going to say
20 there are some.
21 Q You don't know of any and you can't recall one
22 in your 42 years that you've seen, other than this one?
23 A No, I don't recall any. As I say, I have
24 taken notes myself that I don't hope to live long enough
25 to collect.
126
1 Q I'm going to show you -- there was a question
2 about safe deposit boxes and who owns the contents of
3 safe deposit boxes; do you recall that?
4 A Yes.
5 Q Let me hand you Exhibit No. 87 and just ask
6 you generally can you see what that is; not if you've
7 ever seen it before but do you recognize what that form
8 is?
9 A I do.
10 Q Would you tell the jury what it is?
11 A Safe deposit box lease.
12 Q And on this one who does it show as the
13 parties that own the safe deposit box?
14 A Edell Wade or Johnny Wade.
15 MR. RICHIE: I would offer Exhibit 87
16 into evidence.
17 MR. DUCLOUX: No objection, Your Honor.
18 THE COURT: 87 will be received into
19 evidence, Plaintiff's 87.
20 MR. RICHIE: Thank you, Your Honor.
21 Q (By Mr. Richie) I want to turn to the part
22 that you see it says on a joint tenant?
23 A Yes.
24 Q Is that a co-ownership?
25 A Yes.
127
1 Q And then you turn over here to joint owners on
2 page 2.
3 A Yes.
4 Q And would you read to the jury the second
5 sentence where it says, "Joint owners". It's real
6 small.
7 A The ownership of the lease will not affect the
8 title to any contents of the safe deposit box.
9 Q So if there was things in that box that
10 belonged to Johnny Wade and things that belonged to the
11 estate, even if there was a right of survivorship that
12 paragraph would mean that the estate would still own its
13 assets, wouldn't it?
14 A I haven't read the whole thing, but assuming
15 something else doesn't vary it, I would agree with that.
16 Q All right. And in any event we know that
17 $80,000 from that safe deposit box got on the amended
18 inventory and the executor said it is the estate's
19 property?
20 A Correct.
21 Q And you prepared that inventory and submitted
22 it for court approval?
23 A Sure.
24 Q So you're not telling this jury that the
25 contents of that box, the $80,000, somehow belonged to
128
1 Johnny Wade simply because it was co-owned; are you?
2 A No.
3 Q Thank you, Mr. Martin.
4 MR. RICHIE: I pass the witness.
5 THE COURT: Anything further?
6 *******
7 MR. RICHIE: I have one question.
8 THE COURT: Okay.
9 FURTHER REDIRECT EXAMINATION
10 BY MR. RICHIE:
11 Q I want to ask you about 87 which is the safe
12 deposit box form, and I think I understood your answer.
13 He could have gone and removed. What those two
14 sentences together means is if the box doesn't get
15 sealed upon death, but the right to the box is still
16 accessible by the other owner, but that the contents of
17 it are not affected by the right of survivorship?
18 A Correct.
19 Q Isn't that what that means?
20 A That's the way I read it.
21 Q And so if there were estate assets in there,
22 they still belonged to the estate?
23 A Right.
24 MR. RICHIE: I pass the witness.
25 (End of excerpt testimony of Michael Martin.)
129
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1 C E R T I F I C A T E
2 STATE OF TEXAS )
3 COUNTY OF BURNET )
4 I, VICKI K. KANEWSKE, Official Court Reporter in
5 and for the County Court at Law of Burnet, Burnet
6 County, State of Texas, do hereby certify that the above
7 and foregoing contains a true and correct transcription
8 of all portions of evidence and other proceedings
9 requested by counsel to be included in this volume of
10 the Reporter's Record in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, requested to be included.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $3,937.50 and
18 has been paid for by Graves Dougherty Hearon & Moody.
19 GIVEN UNDER MY HAND AND SEAL OF OFFICE this the
20 12th day of May, 2015.
21 /s/Vicki K. Kanewske
22 VICKI K. KANEWSKE, TEXAS CSR NO: 2159; EXPIRES: 12-31-16
23 Official Court Reporter, Burnet County Court at Law
24 220 S. Pierce Street, Burnet, Texas 78611
25 512-715-5244; Fax: 512-715-5226 Email:Vkaykan@live.com
131
03-15-00100-CV
1 REPORTER'S RECORD
2 VOLUME 3 OF 4 VOLUMES
FILED IN
3rd COURT OF APPEALS
3 CAUSE NO: P9127/COURT OF APPEALS NO: 03-15-00100-CV
AUSTIN, TEXAS
3/18/2015 10:35:27 AM
4 IN THE MATTER OF IN THE COUNTY COURT
JEFFREY D. KYLE
Clerk
5 THE ESTATE OF AT LAW
6 EDELL WADE BURNET COUNTY, TEXAS
7
8
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11 EXHIBITS
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16 On the 11th day of April, 2014, the foregoing
17 proceedings came on to be held in the above-titled and
18 numbered cause before the HONORABLE RANDY SAVAGE, Judge
19 presiding at Burnet, Burnet County, Texas.
20 Proceedings reported by computerized stenotype
21 machine.
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TAB L
RR VOL. 3 OF 4 AT 39-46
Page 1 of 86
1 EXHIBIT INDEX
2 Plaintiff's Trial Exhibits:
3 NUMBER DESCRIPTION OFFERED RECEIVED VOL
4 7 Payments made (trial not transcribed)
5 9 Power of Attorney (trial not transcribed)
6 11 Modification Agreement (trial not transcribed)
7 38 File from Michael Martin(trial not transcribed)
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TAB L
RR VOL. 3 OF 4 AT 39-46
Page 2 of 86
noo
IIMI H IIIII 8 PGS
2889t5193
MODIFICATION AGREEMENT
Date: May 1, 2009
0 Holder of Not. and Uen:
Holder'a Mailing Address:
EDELL WADE
REDACTED
REDACTEDREDACTED
Bumet County
Obligor: JOHNNY WADE and AMANDA WADE, husband and wife
Obligor's Mailing Addraae:
REDACTED
REDACTEDREDACTED
Lampasas County
Nota
Date: February 6, 2004
Original principal amount: $500,000.00
Borrower: JOHNNY WADE and AMANDA WADE, husband and wife
Lender: EDELL WADE
Maturity date: February 1, 2036
Unpaid Principal and lnterast on Note: $227,528.00
Uen Documents: Deed of Trust dated February 8, 2004 from .JOHNNY WADE and AMANDA
WADE to PAT E. CAVNESS, Trustee, recorded as Document 002424, Volume 1223, page 503,
Offi~al Public Recorda of Burnet County, Texaa
Property (Including any Improvements):
That certain real property In Burnet County, Texaa, mora particularly deacnbed In Exhibit
"A" attached hereto and made a part hereof for all purpoaBS.
Extended Maturity Date of Not.: March 1, 2025
Modified Terms: The Interest rate on this Modification and Extension shall be zero CO%) percent
per annum. Principal shall be due and payable In monthly Installments of ONE THOUSAND TWO
HUNDRED AND N0/100 DOLLARS ($1 ,200.00) each beginning Juna 1, 2009 and continuing
regularly on the first date of each succeeding month until paid.
0 •THE PARTIES STATE HEREBY THAT THIS MODIFICATION IS FOR THE SOLE
PURPOSE OF EUMINATING THE OBLIGATION OF OBUGORTO PAVTO HOLDER INTEREST
ON THIS LOAN.•
The Note IS securad by Ilana agalnat the Property. Whether Obligor Ia Primarily liable on
the Note or not, Obligor navarthel- agree& to pay the Note and comply with the obftgatlona
expreased In the Lien Documents.
For value received, Obligor renews the Note and promlaas to pay to the order of Holder of
Note and Lien, according to the Modified Terms, the Unpaid Principal and Interest on Note. All
unpaid amounts are due by the Extended Maturtty Data of Note. ObHgor also extends the liens
deacribed In the Lien Documents.
The Note and the Lien Document& continue aa written, except as provided In this
agreement
Obfigor warrants to Holder of Nota and Uen that the Note and the Lien Documents, as
modified, are valid and enforceable and represents that they are not subject to rights ol offset,
rescission, or other claims.
- 1-
0
TAB L REDACTED
RR VOL. 3 OF 4 AT 39-46
Page 39 of 86
When the context requires, singular nouns and pronouns Include the plural.
0 EDE :ADE
~~-
ST:ATE OF TEXAS §
. 2009, by
Notary bile, State of Texas
My commhsslon expires: /.-: · ·'< ~ '( .! ·
STATE OF TEXAS §
This instrument - • acknowledged before me on ,. - -;; /. ( li .{ . .:/ • 2009, by
JOHNNY WADE. ,
STATE OF TEXAS §
0
PREPAR&D IN THE OFFICE dl.....;,..,;,,..,;~;;:;;,.;;,:;,.;~
MARTIN a MILLICAN
512 EAST FOURTH ST.
LAMPABI'II. TX 785!10
m. ~~~:::,
AFTER RECORDING RETURN TO:
MARTIN a MILLICAN
!112 EAST FOURTH ST.
I.AMPAMS. TX 711560
TEl.: (512) 5118-GD
FAX: (512)l!Dtl-ll821
-2-
0
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RR VOL. 3 OF 4 AT 39-46
Page 40 of 86
0
• · ao1d
~-~~~n!rn~!o~!~~.
in Burnet .Couney; 'r_aa, ·ena
t. . ·. • . .
JPiJ•at 'l'raott, West. Ono Ql>o.rter ~ Soc. 60; beill!I ane hundred ·
ab:'lli five 11nd· 28/l.oo aoree in llarnot Onunty; 'l'axaa, out or tho
~:~•J~>~::·•! n=~1:;:;:/=~~.~~~={·~~~Lu.;!~ ~~~· alfi. :·
'\noa . tl 9f B 21~ vra. a do ll ' 8-)/14. l!l 21~ vra. , "l'henoe with the
N 1lne o1' the add A. lt. Ae'M':r Bur • . W 71 ~ 9~5 vr• at 11ld on ·the
aaid 'II 1.1ne J'rca wb1oh l;h&. lf B oor o1' the aft1d A~ U. lklrr;r
Bur II 1'1 B s· 'l'ha Jl, B. cor of tlhe aa1CI.DeJ'Y7 .eUJ"; . 18 .
a at 1ll4 Mit. Db ll I..&t'fiG L, Q, 11llq"keCI bra Jl · '
Jl, 19' w. with tbe:W 11ne :S
0 top or·
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0
26th, 187.3· . DasSDnlns
·If '71 D i'J"OM the .
-vra a at md.
br• sl B · 162 vr~. ·
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..·. · .. -".
0
:..nd Ji:mll'la S7.1vea'bero. deaaaeed, ·tbe unslerutsnod arant:ora be.lj,ob7 con~o7-
tnr. unto ~- eranteae bereln and und1v1dad rive-alxtba lSI~ 1nte~aat
1nlthe aboYe deacr1bacJ 1and, the grantoe Ede11 S~1•eater Wade ovn1nc
-"'. the- ot.ha~ undclvi-del) one-a1xt.h · (l./bl 1nte~aat t~•~•1n ·a'! one or 1:ho
· daY~aaoa ot the A. H • .nd Emma Sy~vaetar, deOaaaad.
. '1'0 lli\VP. t.lUl TO l!OLD· !>he above deec~J.'bed pr-1aea, tosathor w1U> ·
a11 and. •~nAU1ar, tNe rlgbta and' appartenancea thereto ln an~oe
· · 'be1~&M;LW..i:% ih~:;ie.~'~:r= W•d• and wi.te lld'eU s-,1nal>or •
·~a-o"";;A.,;.al'r'8~·1.niSfo.o-!l!.,l\:rlt'l• ·_;
f$
•
.! IIOI!III'dl-.
..; ~ .,
. · .
ouz"'·l ieJ..rri.'Vexaoutaara · and " adllllnlat~atara. · to'""Wirrariii=... u.a"7u1'·o vor
~:• 9 ·.. Dat'and" a11 . and a.1ngu1ar i the •a,!>:l.d preml.aaa unto 'the· Sil:l.d Qha~l.oa · Otto
. Wou!a llld w1t'a B:da11 8'11Yeat:er Wade, t:hei.r heirs and llaalgna asainat
ewe~ peraan · whomsoever 1aw~u11y ola~lftR, or to o~D~ the aano, or
a.n7 part tbarenf'. · .·
But: it: 1a' eapraeal.-, · ~·oed and at1pu1atod that tho Venda~'• Lien
and IIUptt,ri.or t1tl.a Are t-eta1.ned ~~~a1nat the AbnVCt aeocr'ibOd J1roport7
pr._laea· and ~rnv.men~a. in tavor at · Man~el Delbert · D71V•oter unt~1
tba abo•• deaorlbed no~o ~d o1~ lnte~eat: thereon are . ru11y paid
e."!loo:rdin& to lta .raae und tonor, a.t1'ect a. nd r•adlna,, •hen tlrl.a deed
ablll1 \utoDII!a ·nbaolut:a. ·
Wit:noan our hande . ~t Lampaaaa, 'l'axo•, thla 1st de~ or ~ahua~,
J\. n • .1.9S2· ·
0
A
. ~. 5 .., ,4·.. ··~ 1
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0
0
FILED AND RECORDED
e~P:=,_,OI
.JWW~ • · ~ te:e1 : 4a Aft
FEll: . . . . . .
J'•n.t p_..• .,.. County Cl.rk
lk.arnet Count.y, Te•ae
0
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Page 46 of 86
1 C E R T I F I C A T E
2 STATE OF TEXAS
3 COUNTY OF BURNET
4 I, VICKI K. KANEWSKE, Official Court Reporter in
5 and for the County Court at Law of Burnet, Burnet
6 County, State of Texas, do hereby certify that the above
7 and foregoing contains a true and correct transcription
8 of all portions of evidence and other proceedings
9 requested by counsel to be included in this volume of
10 the Reporter's Record in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, offered by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $834 and has
18 been paid for by Mr. Don Richie, Attorney at Law.
19 GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 3rd
20 day of March, 2015.
21 /s/Vicki K. Kanewske
22 VICKI K. KANEWSKE, TEXAS CSR NO: 2159; EXPIRES: 12-31-16
23 Official Court Reporter, Burnet County Court at Law
24 220 S. Pierce, Burnet, Texas 78611
25 512-715-5244; Fax: 512-715-5226; Email Vkaykan@live.com
3
TAB L
RR VOL. 3 OF 4 AT 39-46
Page 86 of 86
03-15-00100-CV
1 Supplemental REPORTER'S RECORD
2 VOLUME 3 OF 6 VOLUMES
FILED IN
3rd COURT OF APPEALS
3 CAUSE NO: P9127/COURT OF APPEALS NO: 03-15-00100-CV
AUSTIN, TEXAS
5/14/2015 2:20:39 PM
4 IN THE MATTER OF ) IN THE COUNTY COURT
JEFFREY D. KYLE
Clerk
5 THE ESTATE OF ) AT LAW
6 EDELL WADE ) BURNET COUNTY, TEXAS
7
8
9
10 EXCERPT TRIAL TESTIMONY OF LORI GRAHAM
11 AND
12 TRIAL TESTIMONY OF AMANDA WADE
13
14
15
16
17
18
19
20 On the 1st day of October 2014, the following
21 proceedings came on to be held in the above-titled and
22 numbered cause before the HONORABLE RANDY SAVAGE, Judge
23 presiding, held in Burnet, Burnet County, Texas.
24 Proceedings reported by computerized stenotype
25 machine.
1
1 A P P E A R A N C E S
2 RICHIE & GUERINGER, P.C.
3 100 Congress Avenue, Suite 1750
4 Austin, Texas 78701
5 512-236-9220
6 BY: MR. DON RICHIE
7 MS. EMILY SEIKEL
8 APPEARING ON BEHALF OF JAMES(BUD)WADE
9
10 LAW OFFICE OF DON E. WALDEN
11 7200 North Mopac, Suite 300
12 Austin, Texas 78731
13 512-349-9595
14 BY: MR. DON E. WALDEN
15 APPEARING ON BEHALF OF NANCY BURNS
16
17 GRAVES DOUGHERTY HEARON & MOODY
18 401 Congress Avenue, Suite 2200
19 Austin, Texas 78701
20 512-480-5600
21 BY: MS. KATHRYN ALLEN
22 AND
23
24
25
2
1 A P P E A R A N C E S C O N T ' D
2 STUBBS LAW OFFICE, PLLC
3 202 N. Porter Street
4 Lampasas, Texas 76550
5 512-556-8970
6 BY: MR. EVAN STUBBS
7 APPEARING ON BEHALF OF JOHNNY WADE AND AMANDA
8 WADE, INDIVIDUALLY
9
10 HILL, DUCLOUX, CARNES & DE LA GARZA
11 400 West 15th Street
12 Suite 808
13 Austin, Texas 78701
14 512-474-7054
15 BY: MR. CLAUDE DUCLOUX
16 APPEARING ON BEHALF OF AMANDA WADE, EXECUTOR
17
18
19
20
21
22
23
24
25
3
1 REPORTER'S RECORD
2 VOLUME 3 OF 6 VOLUMES
3 CHRONOLOGICAL INDEX
4 PLAINTIFF'S WITNESSES:
5 NAME: Dir Cross Redir Recross Voir Dire Vol
6 Lori Graham 7 3
7 Amanda Wade 22/56 168 200 228 54 3
8 DEFENDANT'S WITNESSES:
9 NAME: Dir Cross Redir Recross Vol
10
11 Court Reporter's Certificate Page 231 3
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 REPORTER'S RECORD
2 VOLUME 3 OF 6 VOLUMES
3 ALPHABETICAL INDEX
4 WITNESSES: Dir Cross Redir Recross Voir Dire Vol
5 Lori Graham 7 3
6 Amanda Wade 22/56 168 200 228 54 3
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5
1 REPORTER'S RECORD
2 VOLUME 3 OF 6 VOLUMES
3 EXHIBIT INDEX
4 PLAINTIFF'S EXHIBITS:
5 No: Description Offered Rec'd Vol
6 91 Checking account statement/Edell Wade 150 150 3
7 92 Checking account statement/Amanda/Johnny Wade 155 155 3
8 93 Checking account statement/Blacksheep 155 155 3
9 94 Amortization chart 228 228 3
10 95 Edell Wade taxes chart 228 228 3
11 96 Payment reduction chart 229 230 3
12 DEFENDANT'S EXHIBITS:
13 No: Description Offered Rec'd Vol
14 11 Amortization schedule 132 132 3
15 21 Handwritten chart 226 226 3
16
17
18
19
20
21
22
23
24
25
6
1 P R O C E E D I N G S
2 ******
3 (Jury present.)
4 LORI GRAHAM
5 Having been previously sworn testified as follows:
6 CROSS EXAMINATION
7 BY MS. ALLEN:
8 Q Ms. Graham, I want to get hold of all of
9 your amortization schedules so that we have them all
10 before the jury and have you talk about them while
11 you're here with us, all right. So let me get that
12 exhibit and I'll bring it up to you and maybe a couple
13 of others as well.
14 Ms. Graham, can you identify for us the Defendant's
15 Exhibit 11 as a set of amortization schedules that you
16 prepared in connection with the loan that Mrs. Wade made
17 to Johnny and Amanda?
18 A Yes.
19 Q Can you confirm, because I want to be sure,
20 that all of those pages are your amortization schedules.
21 I know one of them has that Post-it note on it. I want
22 to be sure though that those are yours and that you're
23 comfortable with that.
24 A Yes, this was prepared in 2004.
25 Q Okay. And so Mr. Richie showed you a sample
7
1 page just a little while ago and I apologize that I
2 don't remember the number of that.
3 MS. ALLEN: Do you?
4 MR. RICHIE: Seven.
5 MS. ALLEN: Seven?
6 Q (By Ms. Allen) Exhibit 7. Exhibit 7, that
7 amortization schedule --
8 A Yes.
9 Q -- the basic -- the document itself, the
10 schedule itself that's your schedule, right?
11 A Yes.
12 Q You didn't mean for the ladies and gentlemen
13 of the jury to think that Amanda Wade gave you that
14 schedule, right?
15 A No. The schedule is in my file. That note
16 came in Ms. Wade's information.
17 Q That was a Post-it note, bright green I
18 believe, that came like stuck on the 1099 for Mrs. Wade?
19 A Her other documents, yes.
20 Q Okay. So we can rest assured that Amanda Wade
21 never gave any amortization schedules to you, right?
22 A No. This was part of my work papers and
23 that's where I put the note so I would have that
24 documentation in my file.
25 Q Okay. Is it a -- what is it that the banks
8
1 use to tell Mrs. Wade how much interest she should be
2 reporting?
3 A A 1098.
4 Q A 1098?
5 A A 1099-INT.
6 Q 1099. Okay. And so if I understand the
7 process, whoever brought -- let's say it was Amanda who
8 brought you the 1099s that Mrs. Wade had received so
9 that you could prepare Mrs. Wade's tax returns, the
10 Post-it note would have been stuck on that?
11 A Yes.
12 Q Okay. And I just want to be sure I'm clear
13 because Mr. Richie uses the phrase, Was Amanda acting on
14 behalf of. Is that a phrase that has significance to
15 you?
16 A Well, I know she was our contact. She was our
17 source of contact for Mrs. Wade.
18 Q Right. She gathered her information and
19 brought it to you, right?
20 A Yes.
21 Q Did you mean to suggest to these ladies and
22 gentlemen that Amanda was making decisions for Mrs.
23 Wade?
24 A I don't guess -- no, not making decisions for
25 her.
9
1 Q Mrs. Wade --
2 A She was just providing us her information in
3 order to get her return done.
4 Q Mrs. Wade, as far as you know, was making her
5 own decisions, right?
6 MR. RICHIE: Objection.
7 A I haven't spoken --
8 MR. RICHIE: Calls for speculation.
9 THE COURT: All right. I'll sustain the
10 objection.
11 Q (By Ms. Allen) Ms. Graham, as a certified --
12 well, am I right that Mrs. Edell Wade was your client?
13 A Yes.
14 Q Not Amanda, not Johnny, right?
15 A Correct.
16 Q You never did any tax work for Johnny or
17 Amanda, right?
18 A No, ma'am.
19 Q Okay. So no doubt about it your client was
20 Mrs. Wade?
21 A Yes.
22 Q And as a certified public accountant with a
23 license you certainly have certain duties and
24 responsibilities to your client, Mrs. Wade, right?
25 A Yes.
10
1 Q Can you tell the jury what those are?
2 A What my duties are to Mrs. Wade?
3 Q Well, in general of course wouldn't you agree
4 that as her CPA you have a duty to act in her best
5 interest?
6 A Yes.
7 Q You have a duty to obtain all of the
8 information from her that you need in order to prepare
9 the returns or other documents she's asking you to
10 prepare so that they're accurate, right?
11 A Yes.
12 Q And you certainly would never ask her to sign
13 a tax return if you thought she didn't know what she was
14 doing; would you?
15 A I prepare returns based on information
16 provided to me. I don't audit the return. I prepare it
17 based on what the client provides me.
18 Q Ms. Graham, I'm not trying to be critical but
19 you're a professional, right?
20 MR. RICHIE: Your Honor, I'm going to
21 object to Ms. Allen interrupting her answers. Ms.
22 Graham should be allowed to finish her answer.
23 THE COURT: All right. Let her answer
24 the question before you ask another one.
25 Q (By Ms. Allen) If there's anything else you
11
1 feel you need to share, Ms. Graham, please feel free to
2 do that.
3 You are a professional, right?
4 A Yes, ma'am.
5 Q And you would not ask a client or suggest that
6 a client sign a tax return if you thought that your
7 client did not know what she was doing; would you?
8 A No.
9 Q In fact, you take steps to try to make sure
10 that the people you do work for understand what you're
11 doing for them; don't you?
12 A Yes.
13 Q And that is what you did with Mrs. Wade,
14 right?
15 A I don't recall Mrs. Wade actually coming in to
16 get her return. It was picked up for her, so at that
17 point a lot of times I don't see the client. I assume
18 they review it, they sign it and it gets mailed off.
19 Q But you wouldn't indulge that assumption if
20 you thought she didn't know what she was doing; would
21 you? You wouldn't assume that she read it if you really
22 thought she didn't know what she was doing; would you?
23 A I guess I don't understand what you're -- I
24 mean.
25 Q You never thought Mrs. Wade did not know what
12
1 she was doing; did you?
2 A I haven't spoken to Mrs. Wade in quite a few
3 years.
4 Q Ms. Graham, if you had had the belief in your
5 mind that Mrs. Wade was incompetent or didn't know what
6 she was doing, you would not have suggested she sign the
7 tax return; would you?
8 MR. RICHIE: Your Honor, I'm going to
9 object to this as asked and answered, but also
10 speculative. She said she hasn't seen her in a few
11 years, so she obviously couldn't have reached that
12 conclusion.
13 THE COURT: I'll sustain the objection.
14 Q (By Ms. Allen) Ms. Graham, I think in walking
15 through the tax return information it's clear, but I
16 just want to confirm, is it accurate that Mrs. Wade had,
17 apart from any money from Johnny and Amanda, she had way
18 more money coming in than she needed to live the way she
19 chose to live?
20 A I don't know the amount of Mrs. Wade's income.
21 Q Well, you did her tax return.
22 A I know what her interest was. I -- the amount
23 she has in the banks is not on the statements.
24 Q Yes, ma'am. I do understand that. But you do
25 know the income she was receiving because that was the
13
1 number that you had to know in order to do her returns,
2 right?
3 A Her taxable interest, yes, ma'am.
4 Q Well, you would --
5 A That's all I had privy to, her taxable
6 interest. I don't know her income as far as her amount
7 of money she has, no.
8 Q Wouldn't you report all of her income on her
9 income tax return?
10 A Yes. Her taxable income, yes,
11 Q Okay. So you didn't know all of her income,
12 right?
13 A Her taxable income, yes. Which was interest
14 and Social Security.
15 Q And so you can tell from looking at the tax
16 returns that you prepared and the kind of expenses that
17 she's asking you to deduct, you do know that she had
18 during this time, setting aside any money from Johnny
19 and Amanda, she had way more income than she required to
20 live the way she wanted to live, right?
21 MR. WALDEN: I'm going to object, Your
22 Honor.
23 MR. RICHIE: It's speculative.
24 MR. WALDEN: Well, on top of that,
25 unfortunately not all living expenses are tax
14
1 deductible. So Ms. Graham may know about tax deductible
2 and expenses, but not about all the far greater portion
3 that are not tax deductible. She didn't know how Mrs.
4 Wade lived at the time or whether she had enough money
5 to do whatever she wanted to do. That's what she's
6 being asked.
7 MS. ALLEN: Your Honor, I believe this
8 could be explored.
9 THE COURT: This is cross.
10 Q (By Ms. Allen) Do you remember my question,
11 Ms. Graham?
12 A Could you please repeat it.
13 Q Yes, ma'am. As her tax preparer and knowing
14 her income sources and her expenses in preparing her tax
15 returns, can you confirm for us that given the way that
16 Mrs. Wade chose to live and her lifestyle, she had way
17 more income than she needed to maintain the lifestyle
18 that she chose?
19 MR. RICHIE: Objection. That calls for
20 speculation.
21 THE COURT: Sustained.
22 Q (By Ms. Allen) Would you agree that
23 oftentimes people choose to make gifts or do other
24 things with their money besides leave it in the bank?
25 MR. RICHIE: Your Honor, I'm going to
15
1 object. She has not been designated as an expert in
2 this case. Besides, I don't think what other people do
3 is relevant. She can't render an opinion on whether or
4 not this is usual or customary because she has not been
5 designated as an expert.
6 THE COURT: Is that correct, counsel?
7 MS. ALLEN: No, he's not, Your Honor. We
8 designated protectively Ms. Graham and Mr. Martin simply
9 because it was anticipated that they might have
10 testimony that was of an expert nature, so we did
11 designate them.
12 MR. RICHIE: All right.
13 THE COURT: Overruled.
14 Q (By Ms. Allen) Do you remember my question,
15 Ms. Graham?
16 A Repeat it, please.
17 Q Yes, ma'am. You would agree that people
18 frequently choose to do other things with their money,
19 not just leave it in the bank?
20 A Yes.
21 Q And it's not uncommon that parents have a
22 relationship of trust and confidence with their child,
23 right?
24 A I would assume so, yes.
25 Q And sometimes those parents even make gifts to
16
1 those children with whom they have relationships of
2 trust and confidence; don't they?
3 A I would assume so.
4 Q Well, you've seen that, right, in your
5 practice?
6 A Yes.
7 Q That's what I'm really asking is you've seen
8 that?
9 A Yes.
10 Q And it's not uncommon, right?
11 A No.
12 Q And there's nothing wrong or illegal with that
13 because if there were you would be sounding the alarm;
14 wouldn't you?
15 A Correct.
16 Q And you didn't sound any alarms with regard to
17 Mrs. Wade; did you?
18 A Not necessarily. What are you asking?
19 Q You didn't raise any alarms, there were no red
20 flags waved for you or bells went off when you saw that
21 there was at least an elimination of interest in favor
22 of Johnny and Amanda; that wasn't something that you
23 perceived was wrong or illegal or needed to be reported,
24 right?
25 A Illegal, no.
17
1 Q Did it need to be reported somewhere?
2 A I think it probably should have been done.
3 Q Explain to --
4 A Go ahead.
5 Q No, no. If you need to finish your answer, by
6 all means go ahead.
7 A It depends on the situation where you have a
8 forgiveness of debt or a gift, you know, there are other
9 various things.
10 Q There you go. It's right to say that if
11 you're going to properly report the results of a loan
12 restructure you need to understand exactly what was
13 done, right?
14 A Yes.
15 Q And so did you interview Mrs. Wade or ask her
16 what exactly did you do, I need to understand exactly
17 what you did in order to report this properly?
18 A No. I just went off the information provided
19 to me.
20 Q So you didn't feel it was necessary to delve
21 further into the matter, right?
22 MR. RICHIE: Your Honor, I'm going to
23 object because it calls for facts not in evidence. Ms.
24 Graham said she didn't even know there was a reduction
25 in principal. I don't know how she would have commented
18
1 on it or reported it. Assumes facts not in evidence.
2 THE COURT: I'm going to overrule that
3 objection and let her answer the question.
4 A I prepared the return based on the information
5 provided to me.
6 Q (By Ms. Allen) Isn't it accurate that so long
7 as Johnny and Amanda were paying interest to Mrs. Wade
8 she was having to turn around and pay part of that to
9 the IRS?
10 A Yes.
11 Q And it wouldn't surprise you if she did not
12 like to take money from her son and turn around and pay
13 it to, or part of it to the IRS, right?
14 MR. RICHIE: Objection. That calls for
15 facts not in evidence and speculation.
16 THE COURT: Sustained.
17 Q (By Ms. Allen) There has been a suggestion on
18 your direct examination that one could not save tax
19 money by refusing to take income; do you remember that?
20 That is that you don't have a net savings there because
21 your income is going to be X and your tax is going to be
22 Y and there is always going to be a positive there,
23 right? Well, wasn't that the point Mr. Richie was
24 making?
25 A Yes.
19
1 Q Wasn't the point he was making is that nobody
2 would say I'm not going to take this money from you in
3 order to save on taxes, right?
4 A That was the assumption, yes.
5 Q Okay. I want to understand is it fair to say,
6 when we look at those figures, that if Mrs. Wade's
7 decision was I don't want to take money from Johnny and
8 pay part of it to the IRS, that would be a valid reason
9 for her to make the decision not to take the money,
10 right?
11 MR. RICHIE: Objection, Your Honor.
12 Calls for speculation and assumes facts not in evidence.
13 THE COURT: Sustained.
14 Q (By Ms. Allen) You never perceived that there
15 was a default under either the promissory note or the
16 modification agreement; did you?
17 MR. RICHIE: Objection, Your Honor. This
18 witness is not qualified to interpret defaults and she
19 has not been called upon to render an opinion on that.
20 THE COURT: You may rephrase your
21 question and ask if she's aware of any missed payments.
22 Q (By Ms. Allen) Ms. Graham, are you aware that
23 a single payment was ever not paid that was due under
24 the note or the modification? Do you understand my
25 question?
20
1 A I was not aware of anything, no, as I was
2 going by what the client provided me. I wasn't privy to
3 when payments were actually received or paid.
4 Q Mrs. Wade certainly never said to you, Ms.
5 Graham, there's been a default on the note. Right?
6 A No.
7 Q You never gained any independent knowledge on
8 your own nor her to suggest there was ever a default on
9 the note or the modification, right?
10 A No.
11 Q Just to be clear, we're asking about someone
12 else's handwritten notes. Don't want to go back through
13 that. Mr. Martin has already explained his own notes,
14 but is it fair to say you're not suggesting to the
15 ladies and gentlemen that conversations didn't occur?
16 A No. I probably spoke with Mr. Martin on
17 numerous occasions.
18 Q And probably even on the occasions he recalls
19 even though you can't recall them, right?
20 A I don't recall the specifics of the
21 conversation. I do know that the modification was not
22 my recommendation. Now, maybe we discussed her sources
23 of income and what was causing her to pay tax, which was
24 99 percent interest income.
25 MS. ALLEN: Pass the witness, Your Honor.
21
1 C E R T I F I C A T E
2 STATE OF TEXAS )
3 COUNTY OF BURNET )
4 I, VICKI K. KANEWSKE, Official Court Reporter in
5 and for the County Court at Law of Burnet, Burnet
6 County, State of Texas, do hereby certify that the above
7 and foregoing contains a true and correct transcription
8 of all portions of evidence and other proceedings
9 requested by counsel to be included in this volume of
10 the Reporter's Record in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, requested to be included.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $3,937.50 and
18 has been paid for by Graves Dougherty Hearon & Moody.
19 GIVEN UNDER MY HAND AND SEAL OF OFFICE this the
20 12th day of May, 2015.
21 /s/Vicki K. Kanewske
22 VICKI K. KANEWSKE, TEXAS CSR NO: 2159; EXPIRES: 12-31-16
23 Official Court Reporter, Burnet County Court at Law
24 220 S. Pierce Street, Burnet, Texas 78611
25 512-715-5244; Fax: 512-715-5226;Email:Vkaykan@live.com
231
03-15-00100-CV
1 REPORTER'S RECORD
2 VOLUME 3 OF 4 VOLUMES
FILED IN
3rd COURT OF APPEALS
3 CAUSE NO: P9127/COURT OF APPEALS NO: 03-15-00100-CV
AUSTIN, TEXAS
3/18/2015 10:35:27 AM
4 IN THE MATTER OF IN THE COUNTY COURT
JEFFREY D. KYLE
Clerk
5 THE ESTATE OF AT LAW
6 EDELL WADE BURNET COUNTY, TEXAS
7
8
9
10
11 EXHIBITS
12
13
14
15
16 On the 11th day of April, 2014, the foregoing
17 proceedings came on to be held in the above-titled and
18 numbered cause before the HONORABLE RANDY SAVAGE, Judge
19 presiding at Burnet, Burnet County, Texas.
20 Proceedings reported by computerized stenotype
21 machine.
22
23
24
25
1
1 EXHIBIT INDEX
2 Plaintiff's Trial Exhibits:
3 NUMBER DESCRIPTION OFFERED RECEIVED VOL
4 7 Payments made (trial not transcribed)
5 9 Power of Attorney (trial not transcribed)
6 11 Modification Agreement (trial not transcribed)
7 38 File from Michael Martin(trial not transcribed)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2
•
·. ·
;
.. ,
,I
04/1~007 3:05:54 PM Page 2
0 • .tiELL WADE ..JOHNNY WADE
Data Payment Interest Principal Balance
29 06/0812008 1,849.00 478.17 1,372.83 284,331.32
30 06/0812008 1,849.00 473.89 1,376.11 282,956.21
31 07/0812008 1,849.00 471.58 1,377.41 281,578.80
32 08/DBl2008 1,849.00 489.30 1,379.70 280,199.10
33 09/08/2008 1,849.00 487.00 1,382.00 278,817.10
34 10/08/2008 1,849.00 484.70 1,384.30 277,432.80
35 11/08/2008 1,849.00 482.39 1,388.61 276,048.19
38 12/0812008 1,849.00 480.08 1,388.92 274,667.27
2008Totala 22,188.00 S,672.62 16,615.38
37 01/08/2009 273,288.03
38 02/0B/2009 271,872.47
38 03/0812009 270,478.59
40 04ID8/2009 289,078.38
41 05/0812009 267,877.84
42 08/08/2009 288,274.97
43 07/0812009 284,889.76
44 08/08/2009 283,482.21
46 09/08/2009 282,052.31
48 10/08/2009 280,840.08
47 11/0812009 269,225.46
'48 12/08/2009 267,808.60
2009Totala
49
01/0Bl2010
50
02/08/2010
61
03/0812010
62
04/08/2010
63
05/0812010
54
06/0812010
56
07/0812010
68
06/0812010
67
09IOBl2010
0 68 10/08l2010
69 11/08/2010
80 12/08/2010
2010Tatala
81 01/0812011 1,849.00
82 02/08/2011 1,849.00
83 03/08/2011 1,849.00
64 04/08/2011 1,849.00
85 05108/2011 1,849.00
66 081D812011 1,849.00
87 07/0812011 1,849.0Q
88 08/08/2011 1,849.00
69 08/08/2011 1,849.00
70 10/08/2011 1,849.DD
71 11/08/2011 1,849.00
PLAINTIFFS
EXHIBIT
I :£: .Jew000321
0
1 C E R T I F I C A T E
2 STATE OF TEXAS
3 COUNTY OF BURNET
4 I, VICKI K. KANEWSKE, Official Court Reporter in
5 and for the County Court at Law of Burnet, Burnet
6 County, State of Texas, do hereby certify that the above
7 and foregoing contains a true and correct transcription
8 of all portions of evidence and other proceedings
9 requested by counsel to be included in this volume of
10 the Reporter's Record in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, offered by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $834 and has
18 been paid for by Mr. Don Richie, Attorney at Law.
19 GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 3rd
20 day of March, 2015.
21 /s/Vicki K. Kanewske
22 VICKI K. KANEWSKE, TEXAS CSR NO: 2159; EXPIRES: 12-31-16
23 Official Court Reporter, Burnet County Court at Law
24 220 S. Pierce, Burnet, Texas 78611
25 512-715-5244; Fax: 512-715-5226; Email Vkaykan@live.com
3
03-15-00100-CV
1 Supplemental REPORTER'S RECORD
2 VOLUME 3 OF 6 VOLUMES
FILED IN
3rd COURT OF APPEALS
3 CAUSE NO: P9127/COURT OF APPEALS NO: 03-15-00100-CV
AUSTIN, TEXAS
5/14/2015 2:20:39 PM
4 IN THE MATTER OF ) IN THE COUNTY COURT
JEFFREY D. KYLE
Clerk
5 THE ESTATE OF ) AT LAW
6 EDELL WADE ) BURNET COUNTY, TEXAS
7
8
9
10 EXCERPT TRIAL TESTIMONY OF LORI GRAHAM
11 AND
12 TRIAL TESTIMONY OF AMANDA WADE
13
14
15
16
17
18
19
20 On the 1st day of October 2014, the following
21 proceedings came on to be held in the above-titled and
22 numbered cause before the HONORABLE RANDY SAVAGE, Judge
23 presiding, held in Burnet, Burnet County, Texas.
24 Proceedings reported by computerized stenotype
25 machine.
1
1 A P P E A R A N C E S
2 RICHIE & GUERINGER, P.C.
3 100 Congress Avenue, Suite 1750
4 Austin, Texas 78701
5 512-236-9220
6 BY: MR. DON RICHIE
7 MS. EMILY SEIKEL
8 APPEARING ON BEHALF OF JAMES(BUD)WADE
9
10 LAW OFFICE OF DON E. WALDEN
11 7200 North Mopac, Suite 300
12 Austin, Texas 78731
13 512-349-9595
14 BY: MR. DON E. WALDEN
15 APPEARING ON BEHALF OF NANCY BURNS
16
17 GRAVES DOUGHERTY HEARON & MOODY
18 401 Congress Avenue, Suite 2200
19 Austin, Texas 78701
20 512-480-5600
21 BY: MS. KATHRYN ALLEN
22 AND
23
24
25
2
1 A P P E A R A N C E S C O N T ' D
2 STUBBS LAW OFFICE, PLLC
3 202 N. Porter Street
4 Lampasas, Texas 76550
5 512-556-8970
6 BY: MR. EVAN STUBBS
7 APPEARING ON BEHALF OF JOHNNY WADE AND AMANDA
8 WADE, INDIVIDUALLY
9
10 HILL, DUCLOUX, CARNES & DE LA GARZA
11 400 West 15th Street
12 Suite 808
13 Austin, Texas 78701
14 512-474-7054
15 BY: MR. CLAUDE DUCLOUX
16 APPEARING ON BEHALF OF AMANDA WADE, EXECUTOR
17
18
19
20
21
22
23
24
25
3
1 REPORTER'S RECORD
2 VOLUME 3 OF 6 VOLUMES
3 CHRONOLOGICAL INDEX
4 PLAINTIFF'S WITNESSES:
5 NAME: Dir Cross Redir Recross Voir Dire Vol
6 Lori Graham 7 3
7 Amanda Wade 22/56 168 200 228 54 3
8 DEFENDANT'S WITNESSES:
9 NAME: Dir Cross Redir Recross Vol
10
11 Court Reporter's Certificate Page 231 3
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 REPORTER'S RECORD
2 VOLUME 3 OF 6 VOLUMES
3 ALPHABETICAL INDEX
4 WITNESSES: Dir Cross Redir Recross Voir Dire Vol
5 Lori Graham 7 3
6 Amanda Wade 22/56 168 200 228 54 3
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5
1 REPORTER'S RECORD
2 VOLUME 3 OF 6 VOLUMES
3 EXHIBIT INDEX
4 PLAINTIFF'S EXHIBITS:
5 No: Description Offered Rec'd Vol
6 91 Checking account statement/Edell Wade 150 150 3
7 92 Checking account statement/Amanda/Johnny Wade 155 155 3
8 93 Checking account statement/Blacksheep 155 155 3
9 94 Amortization chart 228 228 3
10 95 Edell Wade taxes chart 228 228 3
11 96 Payment reduction chart 229 230 3
12 DEFENDANT'S EXHIBITS:
13 No: Description Offered Rec'd Vol
14 11 Amortization schedule 132 132 3
15 21 Handwritten chart 226 226 3
16
17
18
19
20
21
22
23
24
25
6
1 of 6 and 6A and I want them back.
2 Q (By Mr. Richie) You went to Pat Cavness's
3 office. Who did you go with?
4 A Nancy, Edell, Johnny and myself.
5 Q And you understood Pat Cavness was Edell
6 Wade's lawyer that had been Charles Otto's lawyer as
7 well; didn't you?
8 A Yes.
9 Q Why did you go to the office of Pat Cavness?
10 A To arrange the sale of this property.
11 Q And that was in January of 2004?
12 Q I believe so. I don't have an independent
13 recollection of the date but it would have been around
14 that time.
15 Q And after meeting with Pat Cavness and after
16 he drafted some documents, the representation of Pat
17 Cavness was terminated; wasn't it?
18 A We ceased using him. He wasn't called up and
19 fired.
20 Q He was representing Edell Wade; wasn't he?
21 A Yes, he was.
22 Q But you decided not to use him any more,
23 right?
24 A I did decide not to use Pat any more.
25 Q Can you tell the jury why you decided not to
55
1 Honor. We object.
2 THE COURT: Overruled.
3 You may answer what you saw.
4 A I know he checked Otto's will, which is
5 Edell's husband, to make sure that Edell had the ability
6 to sell the property and I believe he questioned the
7 price.
8 Q And then you left that meeting?
9 A Yes.
10 Q And Ms. Nancy Wade reported to you that he had
11 made a derogatory comment. What was the derogatory
12 comment?
13 A She reported that sometime later on to me.
14 Nancy said, Hey, Pat said something about you.
15 Q What was it that she reported to you?
16 A She kind of did an impersonation of Pat, with
17 a little bit of a country twang, and my memory is she
18 said something like that he said to her, Do y'all like
19 her? And it was obvious to me based on her
20 interpretation of the comment that Pat did not like me.
21 And my understanding from Nancy was that Nancy said,
22 Yes, we love her.
23 Q So based upon that representation from Nancy
24 Burns, you hired a new law firm to document this deal;
25 didn't you?
57
1 A There was another law firm brought in.
2 Q You hired them?
3 A Okay.
4 Q You went to Austin; didn't you?
5 A No, I didn't.
6 Q Did you call the David Armbrust firm in
7 Austin, Armbrust & Brown?
8 A I contacted Armbrust & Brown.
9 Q Mrs. Edell Wade did not do that; did she?
10 A Not as far as I know.
11 Q Did you ever take Mrs. Wade to the office of
12 Armbrust & Brown in Austin?
13 A No, I did not.
14 Q Did one of the lawyers from that firm come out
15 to Burnet or Lampasas to meet with Edell Wade?
16 A Not that I know of.
17 Q Again, let's just cut to the chase here. No
18 lawyer from that firm talked to Edell Wade, met with
19 Edell Wade, explained the transaction to Edell Wade or
20 got any information from Edell Wade about the sale of
21 the ranch, the 475 acres and all the farm implements and
22 livestock to you and Johnny for $500,000, right?
23 A Not that I know of.
24 Q In fact, the communications from Armbrust &
25 Brown are to you?
58
1 A Well, I have their communications to me, yes.
2 Q And the bill from Armbrust & Brown is to you?
3 A Yes.
4 Q And you paid their legal fees?
5 A I did.
6 Q Had you formed an opinion in your own mind
7 about that time whether Edell Wade -- and I'm talking
8 about the time that this transaction is actually getting
9 signed, had you formed in your mind an understanding
10 that Edell Wade trusted you?
11 A I don't know that I ever had thought about
12 that.
13 Q Did she have confidence in you?
14 A I don't know.
15 Q Well, you know that by 2007 she granted a
16 power of attorney in your favor. You know that, right?
17 A Yes, I know that.
18 Q That would be a pretty clear indication that
19 she had trust and confidence in you in 2007, right?
20 A I suppose so.
21 Q As an attorney would you ever give a power of
22 attorney, a statutory power of attorney to anybody that
23 you didn't have trust and confidence in?
24 A No.
25 Q Let me show you Exhibit 2, a warranty deed
59
1 to argue that you had a default because of the delay in
2 payments. And the reason for it is because of the
3 reasons I've stated. The consequences of going into
4 those areas would be more devastating than the error of
5 my instruction, in my opinion.
6 All right. Bring the jury back in.
7 (Jury in.)
8 THE COURT: You may proceed.
9 MR. RICHIE: Thank you, Your Honor.
10 Q (By Mr. Richie) Ms. Wade, at some point after
11 you moved on to the ranch there was a lock put on the
12 gate, a chain and a lock; is that correct?
13 A Yes.
14 Q Can you tell the jury when that gate became
15 locked?
16 A I don't know.
17 Q Was it after 2005?
18 A I don't recall when it got a lock on it.
19 Q Did you give keys to Bud Wade?
20 A Did I give Bud a key? No.
21 Q Did you give Gwen a key?
22 A No.
23 Q Did you give anybody a key other than Nancy
24 Wade?
25 A Edell had numerous copies of the key in her
116
1 house. Emma and John had keys when they came. Heidi,
2 Charles and Kim, the propane guy, the diesel guy, the
3 trapper.
4 Q But not Bud Wade?
5 A No, Bud didn't have a key.
6 Q Not Gwen Wade?
7 A No.
8 Q And not Sue?
9 A No.
10 Q And not Charlene?
11 A No. Weldon had gotten a key one day.
12 Q When I'm talking about the gate I'm actually
13 talking about a swinging gate, had a lock put on it and
14 a chain, right?
15 A You're asking me if I did it?
16 Q No. Have you seen it though?
17 A Yes.
18 Q In addition to that there's something that is
19 referred to as the gap. Have you heard that reference?
20 A Yes.
21 Q What do you understand the reference to the
22 gap to mean?
23 A There was a gap next to the gate.
24 Q So there's a gate, a fence post and then
25 there's a length of fence between that fence post and
117
1 the next one that's called the gap?
2 A Yes.
3 Q And a lock was placed on that as well; wasn't
4 it?
5 A I don't know.
6 Q Let me show you Exhibit 50 and ask you if you
7 can identify that as a chain and lock on this gap at the
8 ranch?
9 A If you're telling me that that's what this is,
10 then I'm not going to dispute it. It looks like a fence
11 post with a lock on it to me. I can't say that that's
12 on our place.
13 Q Have you seen a lock and a chain on the gap at
14 the ranch?
15 A Not that I recall, no.
16 Q If there is one did you give a key to Bud?
17 A No.
18 Q Did you give a key to Nancy?
19 A No.
20 Q Did you --
21 A I'm sorry. Nancy had a key. I don't know if
22 it was to this or a key to the gate.
23 Q Did Weldon have a key?
24 A I know Weldon came and got keys.
25 Q Well, he came to visit at one point and he had
118
1 to get a key to get on the land. Do you remember Nancy
2 talking about that?
3 A I know Nancy talked about that.
4 Q That's what you're talking about, right?
5 A I remember Weldon coming to the hardware store
6 and picking up a key, yes.
7 Q And that is what he had to do to get on the
8 place. He had to come to a hardware store and get a
9 key?
10 A No, not necessarily.
11 Q How would he have gotten in?
12 A There were keys hanging on the fence post that
13 anybody who had asked could have taken the key off the
14 fence post.
15 Q And that fence post is actually behind the
16 fence; wasn't it, so there's a road then a fence
17 blocking the entry to the ranch and then a fence post
18 between that fence and the property. And that's where
19 you're talking about keys hanging on a fence post?
20 A I don't really have any idea what you just
21 said. There was a fence post then the fence.
22 Q Was it a fence post inside the fence, in front
23 of the fence or behind the fence?
24 A The fence post was the fence.
25 Q You believe the fence post, the fence itself,
119
1 had keys hanging right off of it. That's your
2 testimony?
3 A On the fence post, yes.
4 Q And that anybody walking up the road could get
5 those keys?
6 A Yes.
7 Q If Bud Wade says that isn't true, that he had
8 to actually open the gap and get in, or climb over the
9 fence to get those keys, you're going to tell the jury
10 that's not accurate?
11 A Can you tell me what Bud is going to say
12 again?
13 Q That the keys were inside the fence, not
14 outside the fence and not on the fence.
15 A Well, maybe it's semantics. If this is the
16 fence and this is the street side, this is the house
17 side. Just say this whole thing is a fence post, the
18 key hung on the inside of the fence post, but it wasn't
19 where you would have to climb over the fence to get to
20 it. You could just pick them up.
21 Q Well, what was the purpose of giving anybody a
22 key like Emma or her children if in fact that key was
23 just hanging right there on the fence post. Why did you
24 give them a key?
25 A It's certainly more convenient.
120
1 Q What was?
2 A To have a key in your hand as opposed to
3 walking to the fence post and picking it up.
4 Q Was there a sign that said, Hey, there's a key
5 over here anybody that needs to get in?
6 A No.
7 Q So if EMS rolled up there because mama fell
8 and hurt herself and set off her alarm while you and
9 Johnny were at the stores, would they have to use a bolt
10 cutter to get in?
11 A They probably could have rolled over the fence
12 pretty easily and gotten in there without using a bolt
13 cutter over the maybe four or five wire barbed fence, or
14 they could have cut the bolt cutter on the lock on the
15 gate.
16 Q But the emergency unit didn't know there was a
17 key on the fence post; did they?
18 A Not that I know of.
19 Q Would you agree that Edell Wade turned 90
20 somewhere around 2005, 2006?
21 A It would have been 2005.
22 Q When was her birthday?
23 A March 30th.
24 Q Okay. So March 30th, 2005 she became 90 years
25 old?
121
1 A I believe so.
2 Q Was there a birthday party for her?
3 A I believe so.
4 Q And did someone ask you -- Bud Wade, Nancy
5 Wade -- somebody ask you if they could use the ranch to
6 have the birthday party?
7 A Nobody asked me. I became aware of it but
8 nobody asked me.
9 Q Did you tell them they could not have the
10 party at the ranch?
11 A Ultimately yes.
12 Q Family gatherings had been at that ranch
13 before you moved on it; hadn't they?
14 A Yes.
15 Q And now is this the first time that you know
16 of where somebody had been told, You can't have a family
17 gathering on the ranch?
18 A I don't know.
19 Q You don't know of one before that; do you?
20 A No, I don't know of one before that.
21 Q Was there a 90th birthday party?
22 A Yes.
23 Q Did you go to it?
24 A I believe so.
25 Q Did Johnny go to it?
122
1 A I believe so.
2 Q And Edell went to it?
3 A Yes.
4 Q She could not have her 90th birthday party at
5 home even though she had a life estate, right?
6 A That's not exactly correct.
7 Q You told the family members, I don't want you
8 to have a birthday party on the ranch; didn't you?
9 A That's not exactly correct.
10 Q Well, what did you tell them?
11 A What did I --
12 Q What did you tell the family members who
13 wanted to have a party at the ranch?
14 A I told them that they couldn't have it there.
15 Q That actually happened again on her 95th
16 birthday, the year of her death; didn't it?
17 A No.
18 Q Wasn't there another birthday party that year?
19 A Yes, there was.
20 Q Was it at the ranch?
21 A No, it was not.
22 Q Did you go to the 95th birthday party?
23 A No, I did not.
24 Q Did Johnny go to the 95th birthday party?
25 A No, he did not.
123
1 Q Did Edell go to the 95th -- I'm sorry. Did
2 Emma go to the 95th birthday party?
3 A I don't know.
4 Q Do you know Emma was in town; don't you?
5 A I don't remember.
6 Q You know Kim was in town; don't you?
7 A I don't remember.
8 Q Well, in March of 2010 did Emma and Kim stay
9 at the ranch when they came to town in March?
10 A If they had come to town they would have
11 stayed at the ranch. Whether they were there I don't
12 independently remember.
13 Q I want to now ask you -- we talked about the
14 fact that you agree with me that there was a
15 relationship of trust and confidence between you and
16 Edell Wade at least as early as 2007; do you remember
17 that testimony?
18 A Yes.
19 Q There was also a relationship of trust and
20 confidence between Edell Wade and Johnny Wade?
21 A I believe so.
22 Q And that was in place since at least 2007?
23 A I'm sorry. I didn't hear you.
24 Q Was that in place as of at least 2007?
25 A I believe so.
124
1 Q And continued up until the time of her death?
2 A The relationship with Johnny?
3 Q The relationship of trust and confidence
4 between you and Edell Wade?
5 A Yes.
6 Q And the relationship between Edell Wade and
7 Johnny Wade, the trust and confidence relationship, that
8 continued through the date of her death?
9 A Yes.
10 Q And you acted on that relationship of trust
11 and confidence. You took information to Lori Graham for
12 example, right?
13 A I don't know if that's acting on the
14 relationship of trust and confidence. That is helping
15 Mrs. Wade.
16 Q What did you help her do with respect to Lori
17 Graham?
18 A I took Mrs. Wade's tax items to Lori Graham.
19 Q Did you help Mrs. Wade gather the information
20 to take to Lori Graham?
21 A I may have.
22 Q And then you took her to Lori Graham?
23 A I believe I did.
24 Q And you picked up the tax returns from Lori
25 Graham?
125
1 A No.
2 Q You don't recall that. Were you there?
3 A I don't recall it.
4 Q In 2009 did you have an occasion again to talk
5 with Michael Martin about preparing a modification to
6 the note?
7 A I made -- I know I spoke with him and I made
8 an appointment with his office.
9 Q To modify the note?
10 A Yes.
11 Q And that's the promissory note we've been
12 talking about that you and Johnny gave Edell Wade back
13 in 2004 to pay for the ranch?
14 A Yes.
15 Q The one that had 2 percent interest?
16 A Right.
17 Q And had payments -- here is a copy of the
18 note, Exhibit 4. Do you see on the front page it says
19 the payments will be $1,848.10 each?
20 A Yes.
21 Q That's the note we're talking about?
22 A I guess that's it.
23 Q Is that he one you wanted to modify?
24 A That was the note to be modified, yes.
25 Q What were you seeking the modification to
127
1 Q Johnny Wade, et ux. That would be you, right?
2 A Yes.
3 Q And inside on his worksheet at the back is his
4 work order that says: The client.
5 It says "client" doesn't it?
6 A Yes.
7 Q Johnny Wade, et ux. That's you; isn't it?
8 A Yes.
9 Q And at this time Mrs. Wade would have been, in
10 2009, 94 years old; wouldn't she?
11 A I believe so.
12 Q Did you talk with Mr. Martin about the
13 modification?
14 A At any time?
15 Q Yes.
16 A Yes.
17 Q You knew it was happening, right?
18 A Yes.
19 Q And you had that relationship with her of
20 trust and confidence was still in place. Mrs. Wade
21 still trusted you, right?
22 A Yes.
23 Q And she had confidence in you?
24 A As far as I know.
25 Q Did you know before the modification was
129
1 signed that the principal was going to be reduced on the
2 note?
3 A I knew that Mrs. Wade had expressed wanting to
4 give Johnny a gift. I did not know what or how much.
5 Q Did you consider when you heard about it, did
6 you consider whether or not the modification would be
7 fair to Edell Wade?
8 A I don't think I ever thought of it in terms of
9 fairness. It was something that she expressed that she
10 wanted to do.
11 Q When she was 94?
12 A Yes.
13 Q Did you consider whether or not that
14 modification would benefit you?
15 A It obviously benefited me.
16 Q You would be paying less, right?
17 A Yes.
18 Q Therefore you would have more money?
19 A Yes.
20 Q And the price of the ranch, the original price
21 would be reduced by the amount of this principal
22 reduction, right?
23 A The amount of the note was going to be
24 reduced.
25 Q And the amount paid for the ranch therefore
130
1 would be less?
2 A I guess you could put it that way.
3 Q Would that also benefit Johnny Wade?
4 A Yes. The gift was really to him.
5 Q And Mrs. Wade would be getting les money than
6 if you paid the full principal on the note as set forth
7 in 2004?
8 A Yes.
9 Q And there would be less in the estate to
10 divide to my clients, Nancy Wade, Sue Meuth, than if you
11 paid the full amount on the note?
12 A Yes.
13 Q You wrote a note. You saw Lori Graham this
14 morning and you wrote a note to her. She says it was
15 2010.
16 MR. RICHIE: Can you put that up, please.
17 Do you know what exhibit this is? Seven. Okay.
18 Q (By Mr. Richie) I don't know if you can see
19 it, but let me show you up close what it looks like. Is
20 that your handwriting where it says: Lori, we paid Mrs.
21 Wade house payments with interest through May. She then
22 relieved us of our interest and changed our note to
23 principal only. She only has interest income from us
24 for five months.
25 Is that your handwriting?
131
1 A Yes.
2 Q Below that it says, Did not make last
3 estimated payment.
4 Is that your handwriting?
5 A It doesn't look like it, no.
6 Q Everything above that is yours? I'm not
7 talking about what's on the left. Just this part from
8 the line up.
9 A Yes.
10 Q And there's no mention in there of a principal
11 reduction; is there?
12 A That's correct.
13 Q And there's no mention of a gift?
14 A That's correct.
15 MR. RICHIE: Now would you go to the
16 bottom of the modification agreement, please.
17 As part of Exhibit 38, Your Honor, I'm going to go
18 ahead and mark it as Exhibit 11 and offer it.
19 THE COURT: Any objection to Plaintiff's
20 Exhibit 11?
21 MR. DUCLOUX: No objection.
22 THE COURT: Defendant's Exhibit 11 will
23 be received into evidence.
24 Q (By Mr. Richie) Do you have that modification
25 agreement in front of you?
132
1 Q Reviewed. Reviewed. You read them?
2 A I recall being sent one draft.
3 Q And commenting, talking with Mr. Martin about
4 it?
5 A I did not talk with Mr. Martin about it.
6 Q The number that the note is modified to is
7 $227,528. Do you see that number?
8 A Yes.
9 Q Do you know where that number came from?
10 A Not necessarily, no.
11 Q Well, did you give Mr. Martin that number?
12 A No.
13 Q Did Johnny give Mr. Martin that number?
14 A Not that I know of.
15 Q Did you do a calculation that resulted in
16 $227,528?
17 A I don't think so.
18 Q If I want you to assume with me -- you will
19 hear this later from some other witnesses -- but I want
20 you to assume with me that the difference between the
21 unpaid balance of the note in May of 2009 -- I'm sorry,
22 the balance on the original note after applying the
23 $150,000 prepayment was somewhere around $267,000. Just
24 assume that.
25 A Okay.
134
1 Q If that's true, about a $40,000 difference. I
2 think it comes up to like $39,800 -- $848. Did you know
3 that the amount of what you call a gift and I call a
4 principal reduction, was almost $40,000 before it
5 happened?
6 A I don't think I knew the amount, the exact
7 amount, no.
8 Q Did you know the magnitude, did you know it
9 was $ 40,000?
10 A I just said I didn't know the amount, so, no.
11 Q And you didn't consider whether or not it
12 would be fair to Mrs. Wade, Edell Wade? I'll rephrase
13 it.
14 Did you consider it to be beneficial to Mrs. Wade,
15 financially beneficial?
16 A I can't say that I did.
17 Q Did you talk to Bud Wade about it?
18 A No.
19 Q Did you talk to Nancy Wade Burns about it?
20 A No.
21 Q Did you talk to any of the Wade children about
22 it?
23 A I certainly talked at some point to Johnny
24 about it.
25 Q Fair enough. Other than Johnny, anyone else?
135
1 Q It would be kind of hard to miss; wouldn't it,
2 when you're looking at the document?
3 A If you say so.
4 Q Well, can you miss it?
5 A I certainly didn't understand or realize that
6 that's what that said. It's hard for me to say what I
7 thought five years ago. If I had seen it and noticed it
8 and realized it was a reduction in principal, I'm sure I
9 would have called it out to Mike Martin. I would have
10 certainly reminded him to make sure these were right.
11 Q Do you recall what other things you called out
12 to Mike Martin when you talked to him about a previous
13 draft of this modification?
14 A The one thing I remember talking to Mike
15 Martin about regarding this, and I don't remember at
16 what point in time this was, but he informed me for some
17 reason they were lowering the payment from the 1,848.10
18 to 1,200. That's the only conversation I remember
19 having with Mike Martin.
20 Q $1,200 a month?
21 A Yes.
22 Q From $1,848 a month?
23 A Yes.
24 Q So about a one-third reduction in the monthly
25 payment?
138
1 A Approximately, yes.
2 Q And you would agree with me that is a benefit
3 to you and Johnny?
4 A Yes.
5 Q Lower payments, more money for you?
6 A Sure.
7 Q Could you have said to Edell Wade or Mike
8 Martin, I will not accept a modification that reduces
9 interest to zero. Could you have said that?
10 A Of course I could.
11 Q Could you have said, I will not accept a
12 reduction in payments from $1,848 a month to $1,200 a
13 month?
14 A Of course I could.
15 Q And you told us today, and I think you said
16 previously in your testimony, you didn't consider
17 fairness with respect to this transaction, fairness to
18 Mrs. Wade or the other children, the other Wade
19 children; did you?
20 A I certainly didn't consider the other Wade
21 children. I'm not saying that I thought this was unfair
22 to Mrs. Wade. It just was never a factor that entered
23 my mind.
24 Q Just didn't consider it at all; did you?
25 A I didn't. I didn't think if Mrs. Wade wanted
139
1 Q And it would be out of character for Johnny
2 Wade to send information like this to his siblings;
3 wouldn't it?
4 A Mrs. Wade would have hung us out to dry.
5 Q Was it out of character for Johnny Wade to
6 send this type of information to his siblings?
7 A Ever?
8 Q Well, with respect to transactions with Mrs.
9 Wade. Y'all didn't send a note -- the warranty deed to
10 any of the other siblings; did you?
11 A I disagree with that.
12 Q Who did you send it to?
13 A I believe it went to Nancy.
14 Q At the time that it was signed?
15 A I believe I sent it to Nancy to take Mrs. Wade
16 to have it signed.
17 Q All right. With the exception of Nancy did
18 you send the warranty deed to Bud Wade?
19 A No.
20 Q Any of the other Wade children at all?
21 A Did I send the warranty deed to any of the
22 other children?
23 Q Right.
24 A No.
25 Q Did you send the promissory note, a copy of
141
1 that to the other children?
2 A With the exception of Nancy?
3 Q Let's leave Nancy and Johnny out of this. The
4 Wade children I'm talking about Emma, Charlene, Sue and
5 Bud and Weldon.
6 A No.
7 Q And you didn't send them the closing
8 agreement?
9 A That's correct.
10 Q You just didn't send them any information
11 about the sale; did you?
12 A That's correct.
13 Q And neither did Johnny?
14 A As far as I know.
15 Q And neither did Edell Wade, as far as you
16 know?
17 A As far as I know Edell did not send any paper
18 work to any of them.
19 Q And your lawyers in Austin, Armbrust & Brown,
20 they didn't send this information to any of the other
21 Wade children; did they?
22 A As far as I know, no.
23 Q After this modification was signed you
24 continued to make payments but they are $1,200 a month?
25 A Yes.
142
1 C E R T I F I C A T E
2 STATE OF TEXAS )
3 COUNTY OF BURNET )
4 I, VICKI K. KANEWSKE, Official Court Reporter in
5 and for the County Court at Law of Burnet, Burnet
6 County, State of Texas, do hereby certify that the above
7 and foregoing contains a true and correct transcription
8 of all portions of evidence and other proceedings
9 requested by counsel to be included in this volume of
10 the Reporter's Record in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, requested to be included.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $3,937.50 and
18 has been paid for by Graves Dougherty Hearon & Moody.
19 GIVEN UNDER MY HAND AND SEAL OF OFFICE this the
20 12th day of May, 2015.
21 /s/Vicki K. Kanewske
22 VICKI K. KANEWSKE, TEXAS CSR NO: 2159; EXPIRES: 12-31-16
23 Official Court Reporter, Burnet County Court at Law
24 220 S. Pierce Street, Burnet, Texas 78611
25 512-715-5244; Fax: 512-715-5226;Email:Vkaykan@live.com
231
03-15-00100-CV
Clerk's Record
VOLUME10F2
Trial Court Cause Number P9127
In the County Court
Of Burnet County, Texas
W.R. SAVAGE,Judge Presiding
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
IN THE MATTER OF THE ESTATE OF
EDELL WADE
Appealed to the
Court of Appeals for the Third District of Texas,
at Austin, Texas
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
Attorney for Appellant: SHELDON E. RICHIE
Address: 100 CONGRESS AVE, SUITE 1750 - AUSTIN, TEXAS 78701
Telephone No.: 512-236-9220
Fax No.: 512-236-9230
E-mail address: srichie@rg-austin.com
State Bar No.: 16877000
Attorney for: JAMES E. WADE, Appellant(s)
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
JANET PARKER,
Burnet County Clerk
220 South Pierce Street
Burnet, Texas 78611
CAUSE NO. P9127
ESTATE OF EDELL WADE, DECEASED § IN THE COUNTY COURT AT LAW
§ OF
§ BURNET COUNTY, TEXAS
INDEX
Name Volume 1 Page
Defendants’ Johnny and Amanda Wade’s Amended Motion For Partial 5
Summary Judgment Concerning The 2004 Sale (Pertaining to All Claims)
Filed March 20, 2014
Defendants Johnny Wade’s and Amanda Wade’s Traditional and No Evidence 166
Motion for Partial Summary Judgment on Plaintiff James Wade’s Claims for Attorney’s
Fees Against Defendants in their Individual Capacities
Filed March 20, 2014
Plaintiff's Motion For Continuance And, In The Alternative, Response To Defendants' 279
Amended Motion For Partial Summary Judgment Concerning The 2004 Sale
Filed April 7, 2014
Order Granting Defendants' Amended Motion For Partial Summary Judgment 611
Concerning The 2004 Sale (Pertaining to All Claims)
Filed April 14, 2014
Plaintiff's Emergency Motion To Reconsider Order Granting Defendants' Amended 612
Motion for Partial Summary Judgment Concerning The 2004 Sale or Alternatively,
To Sever Plaintiff's Claims Concerning The 2004 Sale Or For Permission To Appeal
Interlocutory Order
Filed April 23, 2014
Supplement to Plaintiff's Emergency Motion To Reconsider Order Granting 675
Defendants' Amended Motion For Partial Summary Judgment Concerning the
2004 Sale or, Alternatively, To Sever Plaintiff's Claims Concerning the 2004 Sale
or For Permission To Appeal Interlocutory Order
Filed April 24, 2014
Order 762
Filed April 29, 2014
Plaintiff's Third Amended Original Petition 765
Filed May 2, 2014
Motion for Exclusion of Evidence (For Plaintiff’s Failure to Respond to Discovery Requests) 820
Filed May 7, 2014
Defendants’ Hearing Presentation in Support of Motion for Exclusion of Evidence 848
Filed May 20, 2014
Defendants’ Motion for Partial Summary Judgment (as to all claims for relief based 950
on: default” on loan)
Filed May 22, 2014
Defendants’ Motion for Partial Summary Judgment (as to All Tort Claims, based 963
on Economic Loss Rule)
Filed May 22, 2014
Defendants’ Response to Plaintiffs’ Traditional and No-Evidence Motion for Summary 975
Judgment on their Claims for Breach of Fiduciary Duty and Conspiracy with Exhibits A-G
Filed June 5, 2014
Amanda Wade’s Response (in her capacity as Independent Executor) to Nancy Burns’ 1063
No-Evidence Summary Judgment Motion on Affirmative Defenses
Filed June 5, 2014
Volume 2
Response in Opposition to Plaintiff’s No-Evidence Motion for Partial Summary 1122
Judgment and Nancy Burns’ Joinder (as to Affirmative Defenses and Couterclaims)
with Exhibits 1-25
Filed June 5, 2014
Sixth Amended Answer To Plaintiff James E. Wade's Third Amended Original Petition 1263
and Second Amended Counterclaim of Johnny and Amanda Wade
Filed July 15, 2014
Sixth Amended Answer to Plaintiff James E. Wade’s Third Amended original 1275
Petition and Third Amended Couterclaim of Johnny and Amanda Wade
Filed July 15, 2014
Fifth Amended Answer to Plaintiff Nancy Burns’ Amended Petition for Damages 1296
for Breach of Fiduciary Duty and Second Amended Counterclaim
Filed July 15, 2014
Order 1314
Filed July 29, 2014
Response to James Wade’s Motion for Continuance, and Motion for Leave to 1315
Supplement Summary Judgment Proof
Filed July 24, 2014
Verification Pages for Sixth Amended Answer and Third Amended Counterclaim 1420
Filed August 4, 2014
Consolidated Response of Johnny and Amanda Wade to Plaintiff’s Motion for 1422
Traditional Summary Judgment on Defendants’ Counterclaims and Plaintiff’s Motion
to Dismiss Under Rule 91a
Filed September 9, 2014
Response of Johnny and Amanda Wade to Plaintiff’s Motion for Show Cause Order 1534
for Contempt and to Levy Sanction Award
Filed September 26, 2014
Charge Of The Court 1539
Filed October 6, 2014
Verdict 1541
Filed October 6, 2014
Plaintiff James E. Wade's Motion For Judgment Non Obstante Verdicto 1559
Filed October 15, 2014
Request For Denial Of Plaintiff's Motion For Judgment Non Obstante Verdicto and 1589
Defendants' Motion For Entry Of Judgment
Filed October 22, 2014
Final Judgment 1599
Filed November 17, 2014
Order Denying Plaintiffs' Motion For Judgment Notwithstanding The Verdict 1602
Filed November 17, 2014
Plaintiff's Motion For New Trial 1603
Filed December 12, 2014
Order Denying Motion For New Trial 1633
Filed January 26, 2015
James E. Wade's Notice Of Appeal 1634
Filed February 12, 2015
Plaintiff's Letter To Vicki Kanewske Requesting The Reporter's Record 1637
Filed February 20, 2015
Plaintiff’s Request for Preparation of Clerk’s Record 1640
Filed February 20, 2015
Defendant’s Request for Preparation of Clerk’s Record 1644
Filed March 11, 2015
Defendant’s Letter to Vicki Kanewske Requesting Reporter’s Record 1647
Filed April 3, 2015
Bill of Cost 1649
Clerk’s Certification that Appellate Record is True and Correct 1650
Amanda Wade August 4, 20ll
l 3
IN TilE: B9Tl'.'l'El OF
Cl'.USi: NO. p
•nl nt£
.. 1~7
COUNTY COt."R'l' l'.T Ll'.W
, INDEX
Appearances 2
lro!;:l.oL WIWE •o' ' Change Page 92
DECll.M!ED •nmu;,..,. COVN'l''l, TEXAS
'' EXAMINATION
Examination by Mr. Walden 4
. . . . . ..... . .
~
' Examil"'8tion by Mr. Stubbs 90
ORAL DEPOslT~Oll'
o• 7' SIGNATURE SHEET 93
~1'11>.11£
AUO'.JS'I' 1,
.. .
;,au "'
'
NUMBER DESCRIPTION PAGE
"n 1 FIRST AMENDED NOTICE OF 4
,
0""1.. DO:>'CSITJOOIf the P'bs Law DHice, 202 N. Porter
Stre"'=• L'"'lP""•"'• ,.,.,...,, F"r"""'"'t to th2 A Yes.
Q Okay. And I am going to start by asking
ll
l2
(512) 556-8970
"
l4 you to take a look at what I'll have the court
l3 AI ~n PRFSFNTo ' FYhih' 1 whi h 'I re resent to
l4 Ms. Nancy Burns you is the First Amended Notice of Deposition, end
16
" as ' yo a\le see
(Deposition Exhibit No. 1 marked)
l7
"
,
l8 19
'"
MR. STUBBS: I'm going to get those
documents for you.
MR. WALDEN: Okay. Okay.
20 2l
21 ,, A I don't think 1 have.
22 Q (By Mr. Walden) Did - I'll wait until
23 "
24 vour attomev Is back in the room.
25
., Ms. Wade, can I direct your attention to
ESQ "!J.!.B&. - I
EXHIBIT
E
ToH Free: 800.880.2546
Facsimile: 512.328.8139
Suite 22.0
3101 Bee Caves Road
Austln, TX 78746
www.esaulresolutlons.com
400
Amanda Wade August 4, 2011
?0 .,
buying property, but we weren't receiving full use l And the comment was rude.
' and whatnot of ll 2 Q What was it? r
' Q Did anybody suggest getting an appraisal A He -- he did not like me and he --
'
4 done? 4 ' Q Mr. Cavness didn't?
5 A Not that I recall. 5 A Yes. And what Nancy told me that he said
6 Q Okay. 6 was, "Do you all like herr
a Q Okay. And how did you arrive at the a had related this to me. And she said, "Well, yes,
9 interest rate that is reflected in the promissory 9 we love her," mesnlng me. And then based on that I
lO note? 10 didn't wa.nt to continue with using him. And so we
1l A We had originally gone to Mrs. Wade's 1l just had the documents re-done by a different
12 attorney that she used. 12 attorney in Austin.
Q was that Pat Cavness? 0 And 1 take It, if I can direct you to
B
14 A Yes. "
14 Exhibit 2, the warranty deed. the third page of that
15 Q And-- 15 down at the bottom len-hand corner, would that be
n 0 cs. a e s accoun n. n e aw ~0 ~ cus rown.
,p, Vo
"" " And so you and your husband, then,
1a was, you know, a regular interest rate, as far as
like if we had gone to the bank. "
19
Q
retained the law firm of Armbrust & Brown to draw
"'
20 Q Okay. 20 these documents?
n A And - I'm trying - !'m trying-- I don't 20 A 1 suppose you could say it was me and my
22 remember exactly what happened, but the-· husband. I mean, we would -- we all went -- we
ultimately, the --Mrs. Wade's CPA said it needed to " being Mrs. Wade and all of us, went to Pat Cavness
"
24 be one thing. And then I checked with the -- with "
24 and then he made his comments.
25 my CPA and he said, "No, there's a farm purchase 25 0 Do you have an opinion about why
30 32
l e:w:ception.' And the 2 percent came up. M<. Cavness didn't like you? Did he ever say?
Do you recall who Ms. Wade's CPA w.as? ' A WeH, oddly enough, I would consider him a '
2 Q
A Lori Graham. ' friend or acquain1ance now.
'
4 THE REPORTER: I'm sorry? '
4 But I don't think he liked the fact that I
5 THE WITNESS: Lori Graham. 5 had -· well, a couple things came up. He had done
6 Q Is that-- Ms. Graham in Lamoasas, I take 6 Mrs. Wade's Will, and that did not, as it turned
ft? 7 out, reflect what her wishes were at the time. And
'
, Q (By Mr. Walden) And are you talking about 9 being second guessed about that. But, then, he also
a CPA you used would be in California? lO didn't like It when my CPA had found the farm
"n A Yes. u exception rule.
Q And do you - in your opinion did any 0 So I take it you mean that he didn't like
" negotiation take place between you and your husband, " that somebody-- your CPA knew something he didn't?
"
,. on the one hand, and Ms. Wade on the other hand, "
H A We!l, 1 don't -
l5 n I th t u'resa n ?
Define negotiation for me. A Yeah. Yes.
"
" "'
A
n ,erms was ere any so 0 " oy. 'Y' ' Y'
counterproposals made? about the law firm of Armbrust & Brown?
"'
10 A No. Mrs. Wade ga11e us a price, and we "'
10 A I don't recall how I found them, but they
agreed to pay that. 20 were recommended by somebody.
" And her attomey, your testimony is, came 0 And did you -- you and your husband still
," Q
up with the Interest rate? "
22 llved In California at thls time. Right?
A Cavness had done the documents. And then A Yes.
" ",.
25
" " N' ""' '"'' •d I
still on good speaking terms with me at that tlme. 25
0 nme es :L.monJ' wa a n,
~ Toll Free: 800.880.2546
~
Facsimile: 512.326.8139
Suite 220
ES Q Y.IBJ~~ 3101 Bee CCives RoCid
Austin, TX 78746
www.esqulresolutions.com
425
Amanda Wade Au ust 4, 2011
96
l the following includes counsel for all parties of
2 record:
4
5 I further certify that I am neither
6 counsel for, related to, nor employed by any of the
or otherwise interes~ed in the outcome
the action
Further certification requirements
l4 Certified to by me, this 22nd day of
l5 August, 2011.
l6
l7
19 4136
Expiration Date ~2/31/12
20 F~RM REGISTRA~ION NO: 283
ESQUIRE DEPOSITION SERVICES
22 (512) 328-5557
23
24 Job No 259054RH
Toll Free: 800.880.2546
Facsimile: 512.328.8139
Suite 220
3101 Bee Caves Road
Austin, iX 78746
www.esqulresalutions.com
426
Amanda Wade August 4, 2011
97
~ FURTHER CERTIFICATION UNDER RULE 203 TRCP
2 The original deposition ( ) was ~
3 returne<. tU~
414 S. Live Oak
Lampasas, TX 76550
3
352
,~-
(_ ~
' I
\,
-- /
\
Promissory Note
Date: January____, 2004
Borrower: JOHNNY WADE and AMANDA WADE, husband and wife.
Borrower's Mailing Address·
JOHNNY WADE and AMANDA WADE
REDACTEDREDACTEDREDACTED
REDACTED
County
Place for Payment:
1 REDACTED
Lampasas, Lampasas County, TX 76550, or any other place that Lender may
designate In writing_
P1iuclpal A:rnoout. $5ee,eee.ee
Annual Interest Rate: Two Percent (2%)
Maturity Date: January 1, 2036
Annual Interest Rate on Matured, Unpaid Amounts~ Eighteen Percent (18%)
Terms of Payment (plinclpal and interest).
Accno~ed if=lte~est is payable of:! the 1st day of Eebruacy:, 2004 aod oo tbe l$t da~ of each
succeeding month through January 1, 2006. Principal and interest are due and payable In monthly
Installments of ONE THOUSAND EIGHT HUNDRED FORTY-EIGHT AND 10/100 DOLLARS
($1,848.10), each, beginning February 1, 2006, and continuing regularly on the 1" day of each
succeeding month until paid. Payments will be applied first to accrued interest and the remainder to
reduction of the Principal AmounL
Security for Payment. it1is 110te is secDied by a veudo1's lien aud st1pe1io1 title 1etained i11 a
deed fJ"'m EDE• • \IVAQF to Bop-outer dated lan11ary 2004 and by a deed of tn 1st of even date
from JOHNNY WADE and AMANDA WADE to Pat E. Cavness, trustee, both of which cover the
following real property;
Being 475.28 acres out of the West One Quarter of Section 60, out of the Texas Central
Rallroad Company Survey. A.M. Berry Survey, Abstract No. 1645, and the A.M. Berry Survey, Abstract -
No. 1678, in Burnet Count)!, Texas, and being the same property conveyed In deed dated January 28,
1952, from Manuel Delbert Sylvester et al to Charles Otto WaOe anC wife, Edell SylVester wa(Je,
reoorded 1t1 V'olm11e lOB, Page 421-425, Deed Rem1ds oFBui 11et COUIJ"ty, Texas, to wt'licla ilaStiUiiietlt
reference is here made for all purposes.
1
353
REDACTED
( /
;
Other Security for Payment: None.
Borrower promises to pay to the order of Lender the Principal Amount plus interest at the
Annual Interest Rate. This note is payab1e at the Place for Payment and according to the Terms of
Payment. All unpaid amounts are due by the Maturity Date. After maturity, Borrower promises to pay
any biRf')aiG priRGipal balance pl!!s interest a+ the Aon!!al Interest Rate on Matured Unpaid. Amounts.
If Borrower defaults in the payment of this note or in the performance of any obhgat1on many
instrument securing or collateral to this note, Lender may declare the unpaid principal balance, earned
interest, and any other amounts owed on the note Immediately due. Borrower and each surety,
endorser, and guarantor waive all demand for payment, presentation for payment, notice of intention
to accelerate maturity, notice of acceleratlon of maturity, protest, and notice of protest. to the extent
permilted by law.
Borrower also promises to pay reasonable attomey's fees and court and other costs if this note
is placed in the hands of an attorney to collect or enforce the note. I hese expenses wm bear 1nlerest
from the date of advance at the Annual Interest Rate on Matured, Unpaid Amounts. Borrower will pay
Lender these expenses and interest on demand at the Place for Payment. These expenses and
interest will become part of the debt evidenced by the note and will be secured by any security for
payment.
Prepayment· Borrm"'er may prepay this note jn any amount at any time before the Maturity Date
without penalty or premium.
Application of Prepayment: Prepayments will be applied to installments on the last maturing
principal, and interest on that prepaid principal will tmmedlately cease to accrue.
Interest on the debt evidenced by this note wlll not exceed the maximum r-ate or amount of
non usurious Interest that may be contracted for. taken, reserved, charged, or received under law. Any
interest in excess ot that maxim! 1m amm mt will be credited on the Principal Amount or. if the Principal
Amount has been paid," refunded. On any acceleration or required or permitted prepayment, any
excess interest will be canceled automatically as of the acceleration or prepayment Of, ir t11e excess
interest has already been pald, credited on the Principal Amount or, if the Principal Amount has been
paid, refunded. This provision overrides any conflicting provisions tn this note and all other
instruments concerning the debt_
Each Borrower is responsible for all obligatLons represented by this note.
When the context requJres, singular nouns and pronouns Include the plural.
If any Installment becomes overdue for more than fifteen days. at Lender's option a late
payment charge of $50.00 may be charged in order to defray the expense of handling the delinquent
payment.
A defautt exists under this note if (1) (a) Borrower or (b) any other person liable on any part of
this note or who grants a lien or security interest on property as security for any part of this note (an
"Othor Obligated Party") fails to timely pay or pertorm any obUgauon or covenant In any wdtteo
agreert1e11t betwee11 Le••de1 a11d BoJ IO•tveror an)! Ott'tcr OBii§ateB Party; (2} any"' 1arranty. GO''enant. or
representation i~ this note or in any other written agreement between Lender and Borrower or any
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Other Obligated Party is materially false when made; (3) a receiver is appointed for Borrower, any
Other Obligated Party, or any property on which a lien or security interest is created as security {the
''Collateral Security'') for any part of this note; (4) any Collateral Security is assigned for the benefit of
creditors; (5) a bankruptcy or Insolvency proceeding is commenced by Borrower, a partnership of
which Borrower is a general partner, or an Other Obligated Party; (6) (a) a bankruptcy or insolvency
J3FOeeectin§ls commenced against Borrower a padnersbjp of which Borrower is a general partner, or
an Other Obligated Party and (b) the pmceeding continues without dismissal for sixty days, the party
against whom the proceeding is commenced admits the matenal allegations of the petiUon agamst It,
or an order for relief is entered; {7} any of the following parties is dissolved, begins to wind up its
affairs. is authorized to dissolve or wind up its affairs by its governing body or persons, or any event
occurs or condition exists that permits the dissolution or winding up of the affairs of any of the
f9llowing parties: Borrower, a partnership of which Borrower is a general partner, or an Other
Obligated Party; and (8) any Collateral Security is impaired by loss, theft. damage, levy and execution,
iss~,;;~aAee af aA _gfficial w~t or:: oD:ter:: o_f seiz11re oc destmctioo uoles:::! it is QromQtl~ reQlaced with
collateral security: of Uke kind and quality or restored to its former condition.
Notwithstanding any other provision of this note, in the event of a default, before exercising any
of Lender's remedies under this note or any deed of trust or warranty deed with vendor's lien securing
it, Lender will first give Borrower written notice of default and Borrower will have ten days after notice is
given in which to cure the default. If the default is not cured ten days after notice, Borrower and each
surety, endorserr and guarantor waive all demand for payment, presentation for payment, notlce of
iRteAtier:J tg aGGelerate mat11dt~ ootice of acceleratloo of matudt~. grotest, and notice of erotest, to the
extent nermltted bY taw.
-c-
If any provision of this note conmcts with any provision of a loan agreement, deed of trust. or
security agreement of the same transaction between Lender and Borrower, the prov[sions of the deed
of trust will govem to the extent of the conflict.
This note will be construed under the laws of the state of Texas, without regard to
cl:ioice-of-law niles of aoy_ j!Jr:isdiction.
JOHNNY WADE
AMANDA WADE
.
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c.:
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NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY
REMOVE OR STRIKE ANY OF THE FOLLOWING !'"FORMATION FROM THIS
INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR
SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
Deed of Trust
Terms
Date: January _ _• 2004
Grantor: JOHNNY WADE and AMANDA WADE, husband and wife
Grantor"s· Mailing Address:
JOHNNY WADE and AMANDA WADE
REDACTED REDACTED REDACTED
REDACTED
REDACTED
REDACTED
REDACTED
REDACTED REDACTED
_ _ _ _ _ _ _ County
ss
Trustee"s Mailing Address:
P.O. Box 409
Lampasas, TX 76550
Lampasas County
LLWADE
Lender"s Mailing Address:
1 REDACTED
REDACTED REDACTED
Lampasas County
oe
Date: January _ _, 2004
Original principal amount: $500,000.00
Borrower; JOHNNY WADE and AMANDA WADE
Maturity date: January 1, 2036
1
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Terms of Payment: As provided in the note.
Other Debt: None.
pmper+y (including anv lmprovoments)!
Being 475.28 acres out of the West One Quarter of Section 60~ out of the Texas Central
Railroad Company Survey, AM. Berry Survey, Abstract No. 1645, and the A.M. Berry Survey, Abstract
No. 1678, in Burnet County, Texas, and being the same propertY conveyed In deed dated January 26,
1952, from Manuel Delbert Sylvester et alto Charles Otto Wade and wife, Edell Sylvester Wade,
reoorded In Volume 108, Page 421-425, Deed Records of Burnet County, Texas, to which Instrument
and the record thereof reference Is nere maOe for a more par Ucolar descr iptlor ~ of st1cl1 p1 opert) and
tor an ""~'
Prior Lien: None
Other Exceptions to Conveyance and Warranty: Validly existing easements, rights-of-way, and
prescriptive rights. whether of record or not; aU presently recorded and validly existing instruments,
other than conveyances of the surface fee _estate, that affect the Property; and taxes for 2004, and
subsequent assessments for lfial ana pnor years due to ct1ar1ge II 1 la11d csage, o~"W11ersl1ip, or both.
For value received and to secure payment of the Obligation, Grantors convey the Property to
Trustee In trust. Grantors warrant and agree to defend the title to the Property, subject to the Other
Exceptions to Conveyance and Warranty. On payment of the Obligation and all other amounts
secured by this deed of trust, this deed of trust will have no further effect, and Lender will release it at
Grantors' expense.
Clauses and Covenants
A. Grantors• Obligations
Grantors agree to-
1. keep the Property in good repair and condition;
2. pay all taxes ana assessments on the Propel ty befo1e delillqt~eiiC)I,
3. defend tlUe to the Property subject to the Other Exceptions to Conveyance and
Warranty and preserve the lien's priority as it Is established In this deed of trust;
4. maintain, in a form acceptable to Lender, an insurance policy that-
a. covers all improvements for their full insurable value as determined when the
policy is Issued and renewefl, t:mless beREieF a~proves a smaller: amount In writiog·
b. contains an 80 percent coinsurance clause;
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c. provides aU-risk coverage;
d. protects Lender with a standard mortgage clause;
e. provides flood insurance at any time the Property is in a floocl hazard area; and
f · contains such other coverage as Lender may reasonably require:
5. comply at all times with the requirements of the 60 percent coinsurance clause;
6. deliver the insurance policy to Lender within ten days of the date of this deed of trust
and deliver renewals to Lender at least fifteen days before expiratlonj
7. obe) an laws, ercllFIBflees, ana restristive cg••enants applicable to the Property·
8. keep any buildings occupied as required by the Insurance pol1cy; and
9. if the lien of this deed of trust Is not a first lien, pay or cause to be paid all prior lien
notes and abide by or cause to be abided by all prior lien instruments.
B. Lender's Rights
1 I ender may appoint in writing a substitute trustee, succeeding to all rights and
responsibilities of Trustee.
2. If the proceeds of the Obligation are used to pay any debt secured by prior liens,
Lender Is subrogated to aU the rights and liens of the holders of any debt so paid.
3. Lender may appty any proceeds received under the insurance policy either to reduce
tRe Ob1i§atlen er to repair QF replace damaged or destroyed Improvements covered by the policy. If
the Property Is Grantors' primary residence and Lender reasonably determines that repairs to the
improvements are economically feasible. Lender will make the insurance proceeds avalfable to
Grantors for repairs.
4. Notwithstanding the terms of the Note to the contrary, and unless appUcable law
prohibits. all payments received by Lender from Grantors with respect to the Obligatlon.or this deed of
trust may, at Lender"s discretion, be applied first to amounts payable under this deed of trust and then
te ame~otRts Qble and payable to I pnder wjth respect to the Obligation tO be applied to late charges,
principal. or Interest in the order Lender in its discretion determines.
5. If Grantors fall to perform any of Grantors' obligations. Lender may perform those
obligations and be reimbursed by Grantors on demand for any amounts so paid, including attorneYs
fees, plus Interest on those amounts from the dates of payment at the rate stated In the Note for
matured, unpaid amounts. The amount to be reimbursed will be secured by thfs deed of trust.
a If there is a default on the Obligation or if Grantors fail to perform any of Grantors•
obligations and the default continue$ aftfi"r any required notice of the default and the bme allowed to
cure, Lender may-
a. declare the unpaid principal balance and earned interest on the Obligation
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immediately due;
b. direct Trustee to foreclose this llen. in wh\ch case lender or Lenders agent will
cause notice of the foreclosure sale to be given as provided by the Texas Property Code as
then in effect; and
c_ gurchase the Property at any foreclosure sale by offering lhe highest bid and
then have the bid credited on the Obligation.
7. Lender may remedy any default without waiving lt and may waive any default without
waiving any prior or subsequent default.
c. Trustee•s Rights and Duties
If directed by L..eoder to· foreclose this Uen, Trustee wilt-
1. either personally or by agent give notice of the foreclosure sale as required by the
Texas Property Code as then in effect~
2. sell and eonvey all or part of the Property "AS IS" to the highest bidder for cash with a
general warranty blndlng Grantors, subject to the Prior Lien and to the Other Exceptions to
GeA''eyaAse ami ~Mar:ra~Ctty: a~C~d ~titbo11t [ep[eseotatlon or warrant~. ex~ress or imQiied. b}l' Trustee~
3. from the proceeds of the sale, pay, tn thts order-
a. expenses of foreclosure. including a reasonable commission to Trustee;
b. to Lender, the fuJI amount of principal, interest, attorney's fees. and other
charges due and unpaid;
c. any amounts required by law to be paid before payment to Grantors: ana
d. to Grantors, any balance; and
4. be Indemnified~ held hannless, and defended by Lender against all costs, expenses,
and liabilities incurred by Trustee for acting In the execution or enforcement of the trust created by this
deed of trust, which includes all court and other costs, including attorney•s fees. incurred by Trustee in
defense of ao:yo actioo or proceedlng taken against Trustee in that capacity.
D. General Provas1ons
1. If any of the Property is sold under this deed of trust, Grantors must immediately
surrender possession to the purchaser. If Grantors fail to do so. Grantors wlU become a tenant at
sufferance of the purchaser, subject to an action for forcible detainer.
2. Recitals in any trustee's deed conveying the Property will be presumed to be true.
3. Proceeding ondea t11is deed of t1ttst, flliM~ sttit fef feFeelesur:e, ef ptcr:suiRg: a1=1y other:
remedy will not constitute an election of remedies.
4
359
4. This lien will remain superior to liens later created even if the time of payment of aU or
part of the Obligation Is extended or part of the Property Is released.
5. If any portion of the Obligation cannot be lawfully secured by this· deed of trusl,
paymenls will be applied first to discharge that portion.
condemnation of all or part of the Property, from private sa e an eu o con e a ,
damages caused by public works or construction on or near the Property. After deducting any
expenses Incurred, including attorney's fees and court and other costs, LenderwiH either release any
remalning amounts to Grantors or apply such amounts to reduce the Obligation. Lender will not be
liable for failure to collect or to exercise diligence in collecting any such amounts. Grantors will
immediately give Lender notice of any actual or threatened proceedings for condemnation of all or part
7. Grantors asslgn to Lender absolutely, not only as collateral. an presaat ar ad futuae 1et1l
and other Income and receipts from the Property. Grantors warrantthe validity and enforceability of
the assignment. Grantors may as Lender's licensee collect rent and other Income and receipts as
long as Grantors are not In default with respect to the Obligation or this deed of trust. Grantors will
apply all rent and other Income and receipts to payment of the Obligation and performance of this
deed of trust. but if the rent and other income and receipts exceed the amount due with respect to the
ObligatlaA aAG SeeS of trust, Grar:dors may retain the excess. If Grantors default In payment of the
and other income and then as Grantors' agent may ren e rope a
income and receipts. Lender neither has nor assumes any obligations as lessor or landlord with
respect to any occupant of the Property. Lender may exercise Lender-s rlghts and remedies under
this paragraph without taking possession of the Property. Lender will apply all rent and other Income
and receipts collected under lhls paragraph firstto expenses Incurred in exercising Lender's righls and
remedies and then to Grantors' obligations with respect to the Obligation and this deed of trust in the
ere:ler determined by Lender ' ender Is not required to act under this paragraph, and acting under this
Involuntary debtor in bankruptcy, Lender's ing a proo o c a 1m
equivalent to the appointment of a receiver under Texas law.
a. Interest on the debt secured by this deed of trust will not exceed the maximum amount
of nonusurtous Interest that may be contracted for. taken, reserved, charged~ or received under law.
Any interest in excess of that maximum amount will be credited on the principal of the debt or. if that
celeration or re uired or ermitted prepayment, any such excess
principal of the debt or, If the principal of the debt ltas beer apaid, 1efth 1ded. This J)footisteA everFif.les
any conflicting provisions in this and aU other Jnstruments concenllng the debt.
9. In no event may this deed of trust secure payment of any debt that may not lawfully be
secured by a Hen on real estate or create a lien otherwise prohibited by law.
10. When the context requires, singular nouns and pronouns include the plural.
I I. Ttte tell it 1"'i'ote i11cludes all extenslens. mettiflsations, and renewals of the Note and all
amounts secured by thi~ deed of trust.
5
360
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12. Grantors agree to furnfsh on Lender's request evidence satisfactory to Lender that all
taxes arid aSsessments on the Property have been paid when·due.
13. If Grantors transfer any part of the Property without Lender's prior written consent~
Lender may declare the debt secured by this deed of trust immediately payabJe and invoke any
remedies provided in this deed of trust for default. lf the Property is residential real property
containing fewer than five dwelling units or a residential manufactured home occupied by Grantors,
excepllons to thrs provis1on are limited to (a) a subordtnate lien or encumbrance fiat does not transfer
rights of occupancy of the Property; (b) creation of a purchase-money security interest for household
appliances; (c) transfer by devise, descent, or operation of law on the death of a co-Grantor; (d) grant
Of a leasehotd interest of three years or less without an option to purchase; (e) transfer to a spouse or
children of Grantors or between co-Grantors; (f) transfer to a relative of Grantors on Grantors' death;
and (g) transfer to an inter vivos trust In Which Grantors are and remain beneficiaries and occupants of
the Pro e
14. Tins deed 01 trust binds, benents, and may be enforced by the successors In interest of
all parties.
15, If Grantors and Borrowers are not the same person, the term Grantors includes
Borrowers.
16. Grantors and each surety, endorser. and guarantor of the Obligation waive all demand
for payment. presentation for payment, notice of intention to accelerate maturity. notice of acceleration
of matmlty. p1otest:; and notice oi p1otest. to the extem permitted by law.
17. Grantors agree to pay reasonable attorneys fees, trustee's fees, and court and other
costs of enforcing Lende~s rights under this deed of trust If this deed of trust Is placed In the hands of
an attomey for enforcement.
18. if any provision of this deed of trust Is detennlned to be Invalid or unenforceable, the
validity or enforceability of any other provision will not be affected.
19. Gran1ors represent that this deed of trust and the Note are given for the foJJowing
purposes:
The debt evidenced by the Note is In payment of the purchase price of the Property; the debt
is secured both by this deed of trust and by a vendo~s llen on the Property, which Is
expressly retained in a deed to Grantors of even date. Th1s deed of trust does not waive the
vendor's lien, and the two liens and the rights created by this deed of trust are cumulative.
Lender n-ta)' elect to foreclose wide1 eitlie1 of t11e liens nithout wvahrfog the othe1 01 111ay
foreclose under both.
JOHNNY WADE
8
361
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\...__.)
STATE OF TEXAS §
COUNTY OF LAMPASAS §
This instrument was acKnowledged before me on . 2004, by
JOHNNY WADE.
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF LAMPASAS §
This instrument was acknowledged before me on - - - - - - - - - - - - . 2004, by
DAWADE.
Notary Public. State of Texas
Cavness law Ottice
P.O. Box409
414 s. Live Oak
Lampasas. TX 76550
Tel: 512 556-3639
Fax: (512) 556-3608
AFTER RECORDING RETURN TO:
Cavness Law Office
P.O. Box409
414 S. Live Oak
Fax: (512) 556-3608
7
362
CAVNESS LAW OFFICE
414 South Liveoak
P.O. Box 409
Lampasas, Texas 76550
(512) 556·3639
Pat E. Cavness FAX(5l2) 556·5608
January __ , 2004
JOHNNY WADE and AMANDA WADE
REDACTED
REDACTEDREDACTED
REDACTED
Re: Edell Wade sale to Johnny Wade and wife, Amanda Wade
Dear Mr. and Mrs. Wade:
I have represented EDELL WADE in the preparation of legal documents for use in cJosing the
While I have acted solely on behalf of EDELL WADE, you, the Buyers. acknowledge tliattlle
legal fees incurred in preparing the legal documents will be paid by you even though ll:lave not in any
manner undertaken to assist or render legal advice to you. except in the preparation of the legal
documents. You further acknowledge and understand that you may retain independent legal counsel
to represent your individual interests in the referenced transaction.
Please sign below to acknowledge that you have been advised of my representation of EDELL
WADE and that you understand that f am not your attorney.
s i nee rely yours,
Pat E. Cavness
Buyers:
JOHNNY WADE
1
363
REDACTED
fax cclwer shee1-
REDACTEDREDACTEDREDACTED
REDACTEDREDACTED
REDACTED
REDACTED
January 23, 2004
Pa1' Covness
Amanda Wade
following changes and return for review/signature.
364
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TITL..I!:S ........ u ,,...-•·
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e-~ A.,..ement ·
TH&: IITATir. 01' T10X_AS II
,.,.....,,..
="'• '"•
COUNTY OF' U.r.tPA.SAG
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P. 0. Box409
Lampasas, TX 76550
(512) 556-3639
FAX: 556-0423
To: JOHNNY & AMANDA WADE From1 CAVNESS LAW OFFICE
Fax; REDACTED Page.$ 2 (!INCLUDING TRANSMITTAL)
Phone:: REDACTED Date: 2/1812004
STATEMENT OF ACCOUNT
~· C:C:
0 Urgent x Forftfwiew 0 Please COinment D Please Reply 0 PIAase Recycle
•CommenW
THANKS.
pcO(~~
PAT E. CAVNESS
REDACTED 381
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Cavness Law Office
414 S. Live Oak
lnvoiee
Lampasas, Texas 76550 Data Invoice#
2/18/2004 1947
BiiTo
Edell Wade
- ,,
C/O Amanda Wade _;. .__-
REDACTED
REDACTED
Project Fila Number
Sale to Son W-109.5
Description Amount
preparation ofWananty Deed. Promissory Note, Deed of Trust, Closing Agreement, Settlement Statement,
.corresponaem::e ana rela~. matters.
Sa!es Tax Computed in Quicken 0.00
•-
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Thank you for y()ur busines,.
$500.00
Payments/Credits $0.00
Balance Due S500.00
REDACTED 382
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Cavness 1 .aw Office
Invoice
414 S. Live Oak
Lampasas, Texas 76550 Date Invoice#
2/18/2004 1947
Bill To
EdU>U W&M
C.:YO .-\rrvmdt~. W~d~
REDACTEDREDACTED
REDACTED
Project FUe Number
Sale t.oSon
Description A.mount
Ot'ti~ oonfen:mce wi(b Ede(] Wade, et al. 150.00
Sule,;c Tax Cornput~d in Quick<3n 0.00
Thank )'Q'-' lbr your bu»ine.s$.
T.
-· """·""
Payments/Credits $0,00
Balance Due $300.00
REDACTED 383
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<.OVA 0. . Ins. I I I
'!;;" ·~~Is ' ~.:::..'1:;~~".;:.,~1-;;:. '··~ ~::.,·:( '?...
)n~rof ~tual settlement cos~, i ,.;-~:-,:;:;,• :.•• shown.
C. Nota'
1 lema ma,C< •O.kSb
_. ..., . . too:>O ..,_,
100. G!OSs Am ounl Duo Fle1400) 536.00
Citylk>wn ..... to
to
412.
120. G!OSS t.Due From Borrower ~<'><~ 4 20. Groos t Duo to Se Jler ..nnnmm
2,00. I By Orin
201. 'eamest money 501. E>yo ' of ' "
1 • fo< Items unpaid by . . llo<
to
'fO< Hems unpaid
CJIYI1X>Wn taxes to
''""""
~
. County taxes to to
to
2 518.
219 . 519.
520. Total t Due Selle<
•
I _300.<;~sh.
'""""' ~ .<::ash
301. GA'.-mfor y .... to
years to
months THE STATE ·op · TEXAS I"'·"'" ·1 ··
. KNOW ALL MEN BY" THESE PRESENTS:
COUNTY l>F LAMPASAS I
That we, · Manue1 Delbert Sy1vester and Chester Horace Sylvester, in-
.... . dividually and as independent executors of the w:llls and estate3 or
A. H. Sylvester and wite Emma Sylvester, both deceased, Mi~lie S~lvester
w:lfe of Manuel Delbert Sylvester, Melba S~lvester, ~1te ot Chester
Horace Sylves1;er, Lenora Sylvest .. r nut1Ar, and·hUShAnd Austin M. Bl1t1er
Core:Ln S-ylv-ester Stewar.t and husband Ivan 111. Stewart, o. Zell Sylvester.
I • • - ' ·~e~11g •
. ;· . in ~ a .· ounty·;-'l'exius·, - excf pt" 9tleater. llorace 57 t1sti!n'·-..:aiia ~w·:lfe " ""• " °<. ·
-. , ...: -i;~·;:9:~~ba·1-'-'7lve'liter· ·who",-e!liCi~ '.in~Haiit"J.l,'.ton'~'Count"1", for and· 1n:- cons:lde.rat1.on
' i:t'\!1: • -~t o~ ?the "alUll · o:f";'!l'went:y:' Thousand - ($20.000.00) Dol1ars - to· us 1n han~ · .
' · · Pfl.id · and ' secured ' to' be: paid ' 'b:r Charles: Otto •Wade' and · ·wire· Edell Sy1vester
.i ·Wade' as follows: · ' ... _.. . ·.• ·'· - ·- , · :<, ., ; - •
' Twelve ·'l'housand ($12,000.00) Dollars·•-cash in hand pa:ld, the receipt
'i o~ · whS.Ch :la herebT acknow1odged and 1'or whS.ch na 11.en ex'Preased or
imD.li.1.~4.tt"etained or shall ex:lst and one promissory Vendor's Lien
no~~~flll"fth 'date herewith given by the said Charles Otto Wade and
wire Edell " Sylvester Wade, payable at the express req•lest apd ':,direction
. or _al.1 the parties hei:eto to Manuel· Delbert Sylvester -or order, due-
on or be1'ore February 1, 1952. witb interest thereon from maturity
nntil paid at the rate or · six (6") per cent pe:r annum, said note
being payab1e at Lampasas ·, Texas, and providing 1'or 'the usua1 Vendor• s
Lien and ten per cent attorney•s ree clauses, and the Vendor's Lien
and superior title retained · in this deed to aecure,the payment or said
note are hereby trans1'erred ·and signed ·to the said Manuel Delbert
·sy1vester, hls heirs and assigns, and the undersigned ~ranters hereby
ac'knowledge that the rull and entire consideration 1'or th1s conve~ance
has been riaid to them and that the•r do not have• hold or claim sny
" " ·- .. ~~-!IP1.-th:a...1and . and._p:nam1.aaa-c.OA~~·d-Jo.e.-b;;: ~z.aap'l;,,,.aao~n~.,t.a••LJ..;a"".w.aal'lft.-....,,..
_.,•.~ <· ... ancf"""su:rerior t1t1e 1n •raver · or said Manuel-06lbert-S';Ylvester, his heirs
:r and aasiRns as a.1'oresaid; have Granted, Sold and Conveyed, and by
these presents do Grant, Sell and Convey untouthe oa:ld Charles Otte
Wade and wire Edell Sylvester Wade or Durnet County, Texas, all that
ce:rta:ln real estate situated in Burnet .county; Texas, and described as
ro1lows: ·
First Tract: West One Quarter or Sec. 60, bsinc one hundred
sixty five D:rid 28/100 acres in nurnet County, ToxBs, ou~ or the
Texas Central ftsilroad Company Survey, bep,inning at the N. w.
0 car. o! the A. M. Derry Surve:r, a set stone rrom wh1ch a L 0
bra N 9~· E 216~ vrs. a do N B-3/4 E 219} vrs. Thence with the
N line or the said /\.. ?ti. 1'\erry Sur. M 71 E 945 vrs st md on the
I said N l.ine rrom wh1.ch the N r~ cnl" or the seid A. 111. '!'lcrry
Sur. bra tt 71 E S vrs. The n. E. cor or the seld Derry aur. 1•
marked by a s _t md 1'rom \-.h:Lch s Larp,e L. o. marked U brs N
I 42!; W 2SO vra. Thonce N. 19 VI. vii.th tho W 11ne o'£ t.he E 3/4
of Sec. No. 60. at 4~0 vrs. the top or Hluf'£ at 460 vrs. cor.
on the Tlest Edge or B:ranoh at N W cor. of the said E 3/&.1- or
. ·~ . Sec. No 60 on the~ . s ·line··ar the Thea. ·Blair Sur. Thence with
::.~~~fa!}."~'!~P-t "' the ~ sa·id-<'Bla:lr'.Sur.:"·S·-71'.W 1390 vra the-~ E ,.£~_._ ____...,.
, ·01' tne R. P. K:tszior-Sur., St.~Md.-, fit 6 19*E atf 957 vrs-&~•._...... -
forlced Elm the SE cor of the sald Kis:aier Sur.• at 1120 vrs.
an :lnner car ct the T. C. R. R. Co. No. 59, f'or the S. W. Cor
! or t;his Sur. ·Thence 11 71 E 1145 vrs. a st md the Southermost
,· SE cor. or t.his Survey on the W line of' t;he said !'3err-:,• Sur. Th.
i. N 19 W b60 vrs. to the place or besirm.ing, as Surveyed out by
, Dan W. Taylor, Jr.
Second Tract; 160 acres or the A. M. Berr~ qimiay, Burnet
County, Texas, as taken from tho Patent whibh is re~ol"ded in
Vol.· A, pae;e 2$9, Patent Records o:r Burnet Cnunty, Texas this
patent is Jfo. 593, Vol. 29, l.60 acres, be:lnr, Survey Jlo. lJ.i:B?,
on the waters of Mesquite Cr at tributary or ·the LamriCUJas River,
about 15~ miles N 16 E rrom·Burnet by virtue of an a1'1"1dav1t
made before the Clerk or· the County Court of nurnet Cnunty.
December 29~h. 1897, under "lln Act for the beneri t or Actual
'
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Occupanta or Pub1ic 1anda. approved May 26th. 1873. Be6inn1nc
at at md 582 ·vra. N 19 w . rrora a.po1nt.3&0 vrs ·N 71 E rrom the
nor. :
' N ...,, or the Hu~ McCoy sur; t;b lf 19 . W 950 vra a at mc1
....whenae a :L··o b_r a N 4?.1\ W 250. vra ·.a llaliqai. ta: bra Si E 162 vrs •
.:·;Thence s '71 w 200 "vrs a branch 950 vra a st . md whence a L. o •
.'bra N 9t E. 216! v:r-a do bra "N 8-J/4 B 21.9-?t vrs. 'f'h 5 19 E
· 81.5 vrs a branch 950 vr.a o at md. Th N 7.1. E 4 75 vra a branch
950 vra to the pl.ace or bo~lnn'l.ng. bear1nr,s rnar!ced ff.
. · Thi.rd T~a.ct: Out or t.he Thos. YI. D1a1r Surve:r. deacribad as . . .
!llW.111111!11!1!~!111-Mi!i~9;i~~~~~~~~~~~~~~f!j~-ii~
- ~,..:::t.;.~ ... . ,..a. ·~ ~a. . d
· ia!~~11'~~~--~.l..c,e.~,('!": =::;·..:
a ,,. tj_.~ ~o ...1 e ~r a . _ •. . ,a~:eiiifcta-Burttet•••"- . · .·:.:;
.i\t'~·'!'~~~~t:r ; :::TfJXa'•' , V.o;L, , _lf.O •-:1P es•~. 146;.-14Sh ··Al:.1. .~tha.t> .;oer:b.a:ln. ..tract:-: · · · ,..
.t::f.> :: ~... ·, »., _.'";"Or°''par.9.a i: · "p.t"c1an~ .~Yi.n&:• on. .~eaqu 1:te ··cr,4t1.ek 1.n BU%_"11.e t .. coun"l;y • . . '
· •. " ' : • • _ 'l'exa11 1 and ba'1~ ~a .pert, ,or !'l :,or:1.g~a1 .lllll""11Ut,1n the ._. nam.e :or
1
·.
., . · ~.Thomas 131,air. ·Beginn1ng at·a"stana pDB. 1.t · be1n3 otie or the
or1g~a1 c~rnars o.t . aa1d . or1gina1. sarvey from whioh'~ Live Ollk
bra N SOW 75 vrs. · Thence S 71w· 1900 vra to a aeone pile :rrom
· wh1ch a Live Oak bra N .50 W 75"vra. Thence N 19 W with George
Aurtl.er•s 11na 600 ·vra to a rook md on T. W. Hart's South line
:rrom which an Elm bra · s 7 W 51 vra • Th N 71 Eat 1.00 v:-s the
Creek 1 aad ot 1600· vra. T. W, Hart's s. E. Cor •• from which a
Me squi. ta bra N 35 W 20 vrs. and El.Jll bra lf 74 E 50 vra. 1'h S
19 E to Meaqu1te Cr and w1th the meanders or the Cratik'·dowr. to
whe:re the Char1as W11son South 11.ne crosses the • creek and
.._, thence South 19 E. with. said Wilson 11na 400 vra. to the oor or
:·, · tbe same·• The. S· ·l9 ' E with the' original. line 400 vrs to the
'- ··.... ·l .... '=beginn1ng·' cor. • · c·ontainins t;wo handred' ao:r.ea, more or less,
' SAVE ·AND EXCEl'T 40 acres• more·· or ·1ess • out: or this ·Survey. the
said 40 acres . being as :rollowaz ·· Bas at· the NW cor. or this
-Sur. Th about 1.00 wards to and across Mesquite Cr. Th along
the N _l.ine o;r ~1e.s11uite .Cr • .,.to a.~a.lf?.U~. trtjt.Jl__l!hoq.t "~9--t'.ee~ ..b,e1ov,.,.., ,, , ,..
~ .
-.-~~~w: · ···;;; ..
···.,··--·~"'!" ~a•·roak ,.~al.l.~n · saU!' JJesiiui te"'"Cr·.'T.; 'l'hence"°acroas"lr°esqu1 te Cr and
- ~. ""S 19 E about>'"-100 'vrs · to;·thtt ·orfp;ina1 S boundary 1ine or this
, survey. which 1oat named ~O scree mor or 1esa 1a hereby reserved
r . < .rrom the . prov.1aiona ···o1' -.thia dead.-,.- .. • ,. ..
1 - ·· At.so. ·'SAVE AND 'EXCEPT• 10 acres• more or l.eas • out of the
above named 'l'hoa. 1Uair Sur as c.onveyed by A11.c e 111. 9erry and
G. L. G~avea and wife, M. H. Graves "to R. B. F. Berry by dead
0 •dated Sli'Pt• 14. 1909. recorded in· Vo1. · 4-B. pg. ·95. Deed Records
"Burnet County, Texas. descr111ed ca .tol.1ows:
piece, parce1 or tract of land out 01' the Thomae B~air Sur on
lllesqui.te Cr in '3urnct County, Texas. descri~ed as fol 1.ows:
a part or the 160 acres. of the aai.d Thomas B1a1.r Sur conveyed
A11. th,.t certain
to A11ce M. Berry by J. w. Blair and wl:fe by their deed dated
Mfly 29th• 1903, rocorded 1n Vol.. 40. pn pagea J.46-13, of the ""
Deed Records o:f Burnet Couney. Taxae, to which reference ia
here made and the said pare herein conve7ed ia al.1 o~ the
. same v•h1.r.~., J. '. es r.>n 1:.he East side or the LIX!npaaas and Aust1n
,,.. road• w~tih"MaaquiI ~ Cn~~nty, 'l'n:!ton, nn th:l.o <1n7 rersonrl1.1~· U!>!'Cnrcd i: .... nuel
Dn1':>art S:-;-lvootnr, nnd ?.fil11e .S:•lve3ter,. his w.'. t:o, both !mo,-m
to !TIO to ho the 'f'Crsnn11 ~·fhose nmne s are s ubscri bed to the r: o:re-
goS.n!!; instrument, endacl:ec•tted
~... _ the a ama 1'or the pu:rpdlsea and consideration therftin exp:rossed, l!.nd
tw.:..:i:..··:~- tt>e ~ a~d Jltill.ie Sylvester, wife or: the &Rid Manuel DoJ.?ert !;:•lvc:oste:r
...,.._ ~ ..-,,; harlng..··bee,D-• examined 'b:y me pr1v1l;y and apart l'rom her husband• and
hllvini; hhe 11a,.1e fully exp) 111ned i;o her, :ihe, the · snid t!. illi., !'>7l.v .. aeer
na'cnowlodred 1mch lniit.ru!'IP.nt tn he her net and doed • and 11he de·
· clared thnt ohe . had will.ln• : l.~1 si-;nnd the snme for the pur••o!lea and
con:1!.de:rot.1.on therln ex-pres:ied, and that 11he dtd not. w1:;h to re-
t:rar.t i t .
!lT.vmr ""!DETI UY JTJ\llD AltD SEAL OP Ol'Flr:E, Thia 26th cloy of Jan\UD''7 '
A. D. 1952 •
0
0
TnE STATE OF TEXAS
COUNTY OF ifZ.., 'l!V
. lle.f'ore me, the. undersi~!}ed author1ty, a MQtary Pu~lic 1.n and !or
;tJ$ )!1 1 County, Texas, on th13 dAy !'ersonally appeared Ch.,ster
Hor oo Syl.veater, And ltel.h11 Sylvo9t;cr. hi:> wife, ':loth •tnown to me ·
.,./.
; •. c.
a .:
to l>n tbe T'•n•son9 ..11hosh !:nov1n to rno to be .th!> .
·-persona whose nemas are subscribed tn the foreaoin~ instru~ent,
and acknowled'?'.ed to me that they each executed the same !or the pur-
poses and consideration thers!n expressed, and the said ~snore
Sy1veater. Btltler, w1.1'e of' the 3»1d !lustin u. '\utler, havln.; been
exo.mined by me pr1v1.ly and apRrt from h~r husband. and havin~ the
SllJllS f'u11y explained to her, she, the all.id Lenora Sy1vestor Antlar
ac1cn.,w1ed!"ed SL\ch inatruT:lent to bo her F.lct and dned • and o°!'le de -
0 allll'od that she hnd Ylil.lin:-;1y signod the same 1'or the purposes find
cnnsidaration therein expressed, and that she did not wish to re-
tract it.
Ol:'VEU l'>·!D~ J.P.!' 111\llO A ~TD S1!:A!. OI" OF'l•icr.:, Th-ls 26th cta7 or 'Jan1iar,. -.
Ao P. l';l;2.
~;...
.J. v. llAMMBTr
Mntary
TAE STATE_ OF TE"..CAS I
• ·..•: .-.i ACOUlllTY" .OF~,,... I
:A' no1'oro "'"• bhe undoro:t .• :ned •mthority, o J'Jotnry PL:'-' lic 1.n ancl ror
~~Cnunty, Te:o:aa, on this day persona11~r apT)eared Ivan 111. S-:.e"1Brt,
:in ~C'lrein ~yl.vl'tater Stawnll:'t, his wit'e ho th ltnn"7n \;o me to be the
1>erson:i nhnr.>e nn,,es era l'!•lhl'lc·· lhe., to the f°Oll:'P.~oin!:: instr11Mor.t,
and acknowledr,cd to me th~t thoy each executed the ~nme ror tne pur-
poses ond con8idorat: 1 ,,n therein e:-:prr:'19od, anti the s&.!.d t::orein
S:o.-lvostcr !'ltewart, nit's o! tho naic1 Ivan M. Sto1'Rrt, hav1.n.r ; been
exmn1ned Vy me prl vlly and apat't from her husband• and bavi.n~ tho
:iame fully explained to her, sho, the said Corein Sy1vaster StewRrt
nclmowledP,ed such instrwnent to be her Rct nnd deed. and she
dflcl"r"d thot she hnd Yli.lU.nr.;1.::r si ··nod tho same for the purpot1es
and conoiderotion theroin exprcascd, and that she did not ,·Jish o;o
retract i t .
GIVEH lTPT.>ETI UY HAND J\ND sr~l\L OF OFFICE, T h : ; e s ay of "January-.
A. D. 1952.
.i. v. JLuucsn Q??.. ~--.I -. /
,..,.,,.c;..
0
0
·.. , . i
' THE STATE OP TEXAS. • .,
~OURTY: . ~P -'f-6: I ." " ":; : · . ., .. .
~;z; .n:e• the undersigned authority, a Nota17 Publ.ic, in and
.for county, Texas, on t his day personn11y llppeared Oil.bert
Phi. 11 .. and o. Ze11 Sy1vester Phi11ipo, ·hi.a \'li1'e, both lmonn to
- ta . . .. , . r • "=er • · =~·"'"'....,~ ~Q;;Ji~J1,~.,1i.ae ·.r or~_goi~ .-; ,.
1na,r·~~t:;.7..and· ~okri~'Iirll'gi'ldut0 me'·"tli1lt....-th'i'7"'8ac11..,,.ex,.Ciut...d'"the~1fal..'T1e
: :f'or the purposes· and considera·t1on therein expressed, and the sa1f.
o. zal L Syl.veater Ph1111ps, wi1'e or the said G11bert Phi11ips, -
hav1nB been examined by me privily and apart ·1'rom her husband, and
havi~ the same !all.y expl.ained to her, she. the said o. Ze11
Sy1vester Phil11pa ac'lcnowle~ced ~uch instrument to be hor act and
deed, and she dec1sred that she had w111in~ly signed the same ror
-the purposes and consideration therein expressed, and that she did
not wish to retract it.
Hll.HD AND SEAL OF OFFICE, This .26t;bday of J'.am:iar;y- ·•,
~"·~ ~_,;#~ ~
~otary~~ Texas
THE STA'l'E OF TEXAS
COUHTY OF ,~.....,_-{-
'":\~me, the undarsiGmd au'bhority, a lfotlll'"Y Publ.ic, in and .
,~ · ': ,:
:· ..
,. :f'or •p · 9.i,nitxLd~g~•• • -l2a. ·1i;taia · day · peraonal.17 appeared Manuel.
Del.barf; 871.vttW•:f'T-!tftdltpefttntni executor of the wi.l.1s and estates 01'
0
A. R. Syl.vester"'"i'nd wlte Enma. Syl.veater, known to me to be the person
whose name la aubsorlbod to the foree;oibg 1nstr~,ment, anc:I aclmowl.edged
to me that he executed tho same for tho purposes and consideratio~
expressed therein, and in tho capacity therein stated.
r.!VElt lJllDD'I 1.iY 11.Al'ID AUD SEAL OF OFF.ICE, Thia 2&tbdny nr Janua~"·
A.D. 1$2•
~·~
o . . . . . . ,otarJ?°~y,;aa
TllE ST~T'~ OF Tli."Xll.S I
COUl'JTY OF' ~ I
_,notore me, the unde!"signed authority. a Notar:r Pub1ic, in llnd
.-.~ .•.. :for~ .... County, Texas, an this day personal.17 appeared Chester
Q 1~-:;ar,m,aoa: . lr'.1v~st~r • ." ' 1na.1v1dual.1;,· and . as 1ndepondent executoJ:" . or the w il.l.a
nnd o st~t!'lo rtf: fl.. 11. S:f1ve ::te r "11'1.d w!f' e Emma S7,l.veste,.. 0 'mt::1~ SSOO,OOO.OO
Borrower. JOHNNYWADEondAMANDA WADE
EDELL WADE
Jew000177
REDACTED 86
Mlltln'lly dote: Fobnlllf}' I, 2036
Property (lncludbz.g uay bnprovcmCt111}:
That t.:ertllin. rt:al property more pouth;:~JIU'Iy dcst:rlbed In &he attached Bxhlbl! •A".
Prior Lien: None
Other E;~~:ccptlca.t to Conveyance 11nd Wnrrallly; Validly existing co.semenls, right5-of-wny, and
pr!:$crlp!lvc righ.ts, whclher of n::cord; all pres~tly ro~,:Qrdad llll.d vOOidly cxisllns lmtrumenl5', vtbcl"
than canycyan!)CS of1he surfbaq fee cstrue thl!r giTw !be; Pmpgnv• end taxes for2004 and mb5'equent
aucssmcnts for 1hat IPld prior yeen due tv- chMgc 1~ lllnd usage, ownership, or both
For vmluo rccoived nnd to seeuro p11ymcnt of the Oblig11tion, Orantcn~ convey the Proparly to
1 rus~cc in lruSI Orantors: warrant and nsrcc to defend the title 10 the Prcperty, subject to the Other
BKcll!!ptions to Conveyanc.e IUld Wll!Tilllty. On puymcnt oflhe Obliglltion und 111! otllcr amounl.ll secured
lby this deed or tn&$1, dl!s deed ortNst will buvc nc funhcr dfc:ct, and Lender will ~CIUic It nt
Oronton;' expense.
ClnusClll and Covendnb ~~
?l33
~
~~
....,
Oruntors 11gree to• ~~
1. k\..ocp the Property In good n~plili lllld condllton: =
~ ;<0
2 pny oll IUXCll and assesm1ents on the Property before delinquency: = 1'1~
=
~~
i':;li!
preserve tha nen's priority tiS it Is ll.!ltabllshcd in tllls deed of lnlst;
4 mainl.llln, In 11 form uccepl!lble 10 l.ender, un lnsuronce policy tlult-
1. covers all Improvements fOT tbeir full lnSllroble Vllhm liS detcnnfned when the
r;elle) is hu~tea ami ftl"'C d. liRless l.andw appro 'llll aamllllDr IIRIQURt in ··'J'ith18i
c. provides fire and extended covensge;
d prulect5 Lender with a stundwd mortgasc t:luusc;
provides flood insurant:c 11t MY time the Proper1y h;ln 11 Oood huard lli'CIIi 11nd
r Contnlns such othl!r cow:ragc 11!1 Lender may rcusonably require;
.Jew000178
87
3. comply ru nil limos wfth the rcquiremeaiS of lhe 8'0 percent eoinsuranc~:" clauso;
6 deliver the lnsumncc policy lo [,endcr wlfhln ttm days of lhe date of th!, deed of mmt
~~nd dcbvcr nmowals 10 Llo\ndcr at l~::lllit ten dnys before cx:piralion;
7 lo the b~ of their knowledge, obey all iiiWS, ordlmmceJ. :and fCStrietiva cov.=nants
appllcabl~;: tu. the Property; and
8. keep any buildings oco::uplcd as I'Ciquircd by the insurance policy.
D. L111ndcr•s Rq;hb
I. l.ond~r mny 11ppoln1 lri wrlllng • substilufc trust~:c, suceecding to alf rigbrs 1111d
responslbilltlc1 ofTtuste.;,.
2 It th1: proo:cads of the Oblir:ntlon are used to pay My debt secun:d by prior lien:~, Lmder
is subrogn1ed to Withe rights III!d llcnsoflhc hoklersofrmy deb! so pnjd
J. Lender mny apply any praeecd:l rceeived undu tht: lnsurant:e policy eltb111r to reduce the
Obligution Qr lo n:palr or roplaca damQSOd Qf dl:3tntycd Improvements covcrud by tbc policy. If lbc
Property Is Otunton' primiU')' residence P.nd lend~:C" reasonably delcnnlnea thPt rcpaln to !he
Improvements nro economicDIIy f~;~UJble, l.endcr will nmke the insunuu:c proceeds nllilab/o 10
Gttu:~lol'lll fur repairs.
4. NotwHhstandin& the tenus o! lhc Note to tho conb'IU')', anr;t uniC$$ vppllwblo low
prohlbils, all paymrmt!l recel...,cd by Lender &om Onmtors with respect to the Obll;atlon or tlds deed of
tnm1 may gl 1 ••mlc:r's dlsm"inn be nppiJed fltsl '0 gmmm'' paypble •md•r th's deed o' 11;11'11 Md thlll
to ~ounls dlle IU1d puyublc to l-ender whh rtlspe~:~ to the Obligadon, 10 be Dpplh•d to 11110 IO'Iiw'IJCII,
s. If Grantors fall to perfonn any of Onv~IOI'S' oblisations, Lender may pe:rfonn
obUgation:s and br,:~ reimbun"cd by Ornntors on demnnd Cor nny IU11ounts so pWd, Including ..,~.,:;;;;.;
fees, plus inlcroiSI on thm~c w:nounls :!Tom tl!e dates of payment ot tho rntc .1t111cd in lh;o
matured, unpnld nmou11l!:. The amount to be rebr!bur!:ed wm bo seeured by this deed oftntu.
6 If there is a de(]Jufl on tho Obligation or If Oruntors fh!l to peribnn
obl~lions and the def11ult ~:oodnur:s 11ftcr any required ngllclll' of th.., default and the
c:urc, Lender mny•
direct lrustce 10 f~closc thl!i lien, in which ciiSO Loodcr alll'
mliiW"il)', notice of uecel~tudun of wotuolq, p•otast, IUtw oFp;ct~u, tCI tho Clltent permlned b)
law.
17 Grantors agree to plly i'CAsonoblc ottomcy's fees, lnlstec's fees, and court and other
costs of cnfon;ing L.cnder's rights under !his deW cfltUSI Jrthls de~ gf trus1 Is pl11<:ed in the hllllds of
on iiltomc)' fot' lmforecment
18. If any pnavhdon of this deed of trust ill determined to be invulit.l or unenfbrecllble, the
validity or enforceability ar an)' other provision will not be; nffectcd.
19 Orantors r~rcsent lbat this deed or trw:t nnd the Note arc given ror the: fbllowtnc
.Jew000182
91
BXBCUTED lhls_k__ day of February, 2004
/OHNNYWADE
CdmMJ,u!dL
AMANDA WADE
STATE OF
COUNTY OF R1~B§J c£.
'"""" §
§
Tbls Instrument w-o~;~knowlcds:~;~d before me an .fffilR:i:[lliJU,!,!!FHtt;.lV'-..!O~p!2__ _ , 2004, by
JOHNNY WADE-
·~~HRISTINE~~~
ij o.-~- l
~ _Jl\lfif.OOT'lt\..1
00
SfATEOFCAL., /Qt?tVlfr §
COUNTY OF fa 1/e/?.SI Q£ §
2004, by
.Jew000183
92
Jew000184
93
~~.!
'ilf4·;·
T
Jew000185
94
pl'u-:rRlGGl:l a.nl.l llllJ>l'CIT~PIQnf;G 0 1n /II.VTo~t thurcr...,. oro r .. l.l::r pa\d
n .. nordln!]; t~> L~o f•uro .. nd tanC>r, arroab ~ nd raadlnn, "'han ~h.lo doo.t
ah-.1.\ bofl!-O obaol.llt.o,
A. ~~tJ:9;~."11J' 1\Wld• at Ln"'f!ooo.o, T'oxan, lfhlll l~t; dDT gf J"ai'luary,
.£. 9" • $1&g ' •.,... fl...pt).. '
,'V- ,.,_ ~
1'. ' ~
.. _ HDta.ryJ?~Da'
~
.JeW000186
95
;•jl )IOJ'Diin• Wh<>•<> '"'"'0" II'J'O .Ub001"J.IIDd tO the r01"11Q:D1R'I Uult..Ur:r~"t,
•11<1 Pl>llfl<>Oo;ad ta,... bhac·ti!<>J' DllOtl axaautod llho ,..., .. ra.- ~he t>Ur-
J;1:: . ;:~ ~,l!tr:f~:",.}b~:;:•; ..1;"K:;;,~
o>UttnlnaOIIVII llfld
""""ldarouion l:hor111n ""-Pl'D••od, and th~t 1b11 dld rlOt 11i"h ~o ro-
tro.at 1t,
'.11¥1.':\1 l'•li)Uft Iff 111\JID /1.'10 S1!:1Lr. Of' O:n>taa:, 't'n\6--Z6,J;h_jloy at -.r-.uo'oury 1
... ~'"-nr >1-?-?Z-... ~ -· .;;..;z:
.Jew000187
96
. l
rHVIiiiJ UJI'Diilll \.!:{ IIAJIP MID S'IU\I.o 01" of1';TCI!: 1 'l'hh ~ 20 F.3d 1360 Fifth
16 Circuit case, it' a Texas case, there's a comment on
17 constructive notice on page 1370: It is settled by
18 numerous decisions of our courts that a duly recorded
19 instrument carries notice of its contents only to those
20 that are bound to search for them.
21 So, you know, what can be seen is a question about
22 the fiction of what Bud Wade should have known. He
23 wasn't a party to those instruments. He's certainly not
24 bound to go search for them by any law that Ms. Allen
25 cited. And had he searched for it he wouldn't have seen
64
1 the purchase price. He wouldn't have been able to see
2 the terms of the note. He wouldn't have been able to
3 see the interest rate. It wouldn't have put him on
4 notice of those things that he needed to be on notice of
5 to bring this claim.
6 There is a case called Rentfro that Ms. Allen cites
7 in her materials and so do we. In the Rentfro case the
8 difference was there as the Court says -- and it's
9 Rentfro, R-e-n-t-f-r-o, out of San Antonio. But what
10 the Court said, and it's interesting, is that in that
11 case -- and this is hard to read some of the page
12 numbers, but I think it's on page 9, it says: Rentfro
13 seems to acknowledge -- so Rentfro would be in the shoes
14 of Bud Wade -- Rentfro seems to acknowledge that deeds
15 were executed and recorded shortly after the events
16 occurred. Rentfro's affidavit also seems to suggest
17 that before or soon after the deeds were signed she was
18 aware of all of the alleged facts by which she later
19 based her 2003 intervention.
20 Bud Wade has told this Court in numerous ways and
21 so has Nancy Wade that they did not know the terms of
22 the note, didn't know the rate of the note, they didn't
23 know the purchase price of the property, and you
24 couldn't see that from the instruments. So the Rentfro
25 case may hold for the proposition that you're bound by
65
1 what the public documents show but only to the extent
2 that it shows the things that you complain of. And
3 these documents do now show those things.
4 THE COURT: What about the argument she
5 made that we have an eight year period there while mom
6 was alive. Why didn't the son call mom and say, Mom,
7 what's going on? Or why didn't he call Nancy? I think
8 he did say that he talked to Nancy. He also talked to
9 his wife. He was aware of the fact that there was a
10 sale, but he didn't inquire of his mother or anyone else
11 what the terms of the sale were. If he was so concerned
12 about all of this, why didn't he inquire using the --
13 I'm not talking about going down and digging through
14 public records. I'm talking about picking up the phone
15 or dropping by and saying, What's going on?
16 MR. RICHIE: And I think that's a fact
17 question and it's an equitable question. I don't think
18 it's a legal question. He had no duty to ask. He's a
19 son. He's not complaining that mom had -- that she was
20 mentally incompetent. He has no legal duty to do that.
21 So I think there's a fair question why he did not ask,
22 but I don't think it's dispositive of summary judgment
23 because he had no duty to ask. What he will tell you is
24 that he didn't want to interfere. It's his mother's
25 life. His mother's world. He didn't want to make her
66
1 unhappy. She was old. He has already told you in his
2 affidavit and in Ms. Burns' affidavit mom was beginning
3 to get agitated, seemed agitated. So he didn't want to
4 further stir the pot. And he didn't know the things
5 that put him on notice to ask those kinds of questions.
6 Again, a sale at $1,200 an acre, we wouldn't be
7 here unless the note was for zero interest and 40 years,
8 then we would still be here. But a normal note, 15 year
9 note, 20 year note, 4 or 5 percent interest rate, $1,200
10 an acre, that's not the issue. It's not the fact of the
11 sale. You're not trying to get this property to make it
12 a monument to the family to go to every year for the
13 rest of their lives. They are trying to bring an asset
14 to the estate so that the value of that asset can be
15 properly shared among all seven children like Mrs. Wade
16 wanted it to be done. There is no duty for them to have
17 made an inquiry as to the terms of the sale or her
18 motive in the sale of the property until they found out
19 there was a problem, until they found out there was
20 something extraordinary. Pat Cavness is fired, lawyers
21 in Austin are hired, the note gets modified. All of
22 these facts stacked up that they learned after her
23 death.
24 THE COURT: I understood that the
25 business about Mr. Cavness being fired was something
67
1 that -- was it Nancy that was aware of?
2 MR. RICHIE: I don't believe so.
3 MS. ALLEN: That is in the summary
4 judgment brief, Your Honor.
5 THE COURT: Well, I'll let you all hash
6 that out in a little bit, but --
7 MR. RICHIE: Nancy said, when she got the
8 file in 2010, she knew after the death that she knew
9 that Mr. Cavness had been terminated. Now, what Ms.
10 Allen is going to tell you is you can see from the deed,
11 Return to Armbrust & Brown when it's recorded, that
12 there is another lawyer involved. But that didn't mean
13 that that lawyer was representing mom. In fact, they
14 weren't. So you still wouldn't know from looking at the
15 deed, the return-to deed, whether or not that is
16 Johnny's lawyer, which it was, or whether or not that
17 was mom's lawyer, whether or not Pat Cavness was still
18 in the picture or not.
19 So, yes, she learned eventually but not until mom's
20 death, and that's what she says in her affidavit. She
21 knew that Pat Cavness had made a comment. That comment
22 being: Do you like -- to Edell -- Do you like Amanda?
23 And I think the suggestion is that it was made not more
24 like, Do you like her. But, Do you like Amanda? It
25 wasn't necessarily a positive comment. And I think you
68
1 will hear that. It doesn't mean she knew Pat Cavness
2 had been terminated and I think she will tell you under
3 oath that she did not know that.
4 Amanda's testimony in her deposition on page 31:
5 That's what Pat said to Nancy and Nancy related to me.
6 And she said: Well, yes, we love her.
7 This is Amanda testifying about what Nancy told her
8 Pat had said.
9 Well, yes, we love her.
10 And then based on that: Do you want to continue
11 using him? We didn't want to continue using him. I'm
12 sorry. And then based on that: I didn't want to
13 continue using him.
14 This is Amanda saying she didn't want to use him.
15 Not Edell Wade didn't want to use him. And so we just
16 had the documents redone by a different attorney in
17 Austin.
18 And then he goes on to say: Well, whose attorney
19 was it?
20 And she says: Well, it's mine and Johnny's. And
21 we paid the bill.
22 There is another case, the Estate of Walter
23 Fawcett, 55 SW.2d 214 Eastland.
24 THE COURT: You said SW.2d?
25 MR. RICHIE: I may have. 55 SW.3d, 214.
69
1 I'm sorry.
2 THE COURT: There you go. All right.
3 MR. RICHIE: This case calls for the fact
4 that reasonable due diligence is a question of fact for
5 a jury.
6 THE COURT: Yes, I'm familiar with that
7 case.
8 MR. RICHIE: So it's a fact question.
9 The question is a good question. I certainly asked it
10 myself when I first met Bud and Nancy. And there is no
11 duty to make inquiry. Whether they prove to a jury that
12 there is some basis for estoppel, we don't have one
13 today. And I would like to conclude by saying this idea
14 that they're estopped because they received the benefits
15 of the payments, there isn't any evidence, because it's
16 not so -- that when those payments were made and those
17 payments were paid to bank accounts of Mrs. Wade, that
18 any of her other children got any of that money. So the
19 benefits of the note payments is a facade or at least a
20 fact question. Money is fungible. We don't know what
21 money got distributed to Bud Wade. We don't know what
22 money got distributed to Nancy Burns. We know money got
23 distributed. We don't know if it's the money from the
24 payment of the rent. It's money on the estate account.
25 She had other money. She had Social Security. She had
70
1 interest on her CDs, et cetera. So to say that they are
2 estopped because they accepted the benefits of the
3 transaction, they didn't receive any benefits of the
4 transaction and received none of those payments during
5 that time they were being made. So that is not
6 accurate, but if Ms. Allen believes she can convince a
7 jury that they have somehow received those benefits and
8 that therefore knew about it and benefited from it and
9 knew at the time they were receiving them, that mom was
10 being paid and was going to build an inheritance for the
11 future or something like that, perhaps she can prove an
12 estoppel. Not for summary judgment.
13 May I have just a moment, please.
14 In conclusion, Your Honor, it' just there are so
15 many facts in this case. There are so many issues that
16 took place over so many years. It is an extraordinary
17 case. We have a lawyer, a California lawyer, a mother
18 in law, buying property one-half to one-third of its
19 value, 32 year note. First there's low interest, then
20 there's no interest. No proof of -- none at all that
21 mom intended that reduction of $81,000. In fact, Amanda
22 and Johnny were both shocked that there was a
23 discrepancy between the original note payments and the
24 amount of the modification. Couldn't explain where the
25 modification came from.
71
1 So we believe this case is right for trial. There
2 are a lot of fact questions with respect to the issue of
3 the sale of the land in 2004, the question about why it
4 wasn't foreclosed once their payments weren't made, why
5 Pat Cavness wasn't replaced with a new trustee at the
6 time Amanda is walking around with a power of attorney
7 and had the power to use that to happen on behalf of
8 Mrs. Wade. Didn't do that. So we believe we have a
9 breach of fiduciary duty to bring the propepty back in
10 in 2009 and 10 when that modification got there. In '11
11 when Don Walden proved up that the note hadn't been --
12 that the balance that was claimed by the maker of the
13 note was less than the true balance that was in default,
14 still no foreclosure. No foreclosure to this date.
15 So we believe there are a lot of fact questions,
16 multiple theories that would allow this property to be
17 brought back into this estate, either through a recision
18 or a foreclosure. And that being said, this case needs
19 to go to trial so all of the facts can come out.
20 Summary judgments are limited to the summary judgment
21 facts. It's different than a jury trial, and our
22 client, Mr. Wade, Bud Wade, deserves his day in Court to
23 put forth this matter and try to recover for the estate
24 the primary asset that his mom and dad worked so hard to
25 accumulate during their lifetime and that was intended
72
1 to be there for the benefit of all seven children.
2 Thank you, Your Honor.
3 THE COURT: Thank you.
4 Do counsel for the other parties wish to address
5 the Court on this issue?
6 MR. DUCLOUX: I'll limit myself to 60
7 seconds, but I will be happy to go after.
8 THE COURT: Well, the issue of regarding
9 the executor and what she did, when she did it are
10 issues that I think are tied in with the, more with the
11 issue of whether or not she should be removed, not
12 necessarily the initial sale of the property.
13 Counsel, I know that you're representing Nancy, but
14 at the same time I just didn't know if you wanted to
15 address any issues at this point?
16 MR. WALDEN: I'll wait. I don't have
17 anything to add that you haven't already heard.
18 THE COURT: Do you want a brief rebuttal?
19 MS. ALLEN: Your Honor, I need 60
20 seconds.
21 You've just heard an admission that Mrs. Wade had
22 full capacity. There is not a lack of capacity issue.
23 You have just heard an admission that the plaintiff who
24 claims he wants to set the sale aside knew about it and
25 he knew about it as early as March, 2004. That is the
73
1 end of that. Mrs. Wade is allowed, she is a grown up
2 person with capacity, and she gets to dispose of her
3 property as she sees fit, and that is exactly what the
4 summary judgment evidence shows she said she was going
5 to do. So that's the end of that.
6 The problem as subscribed to you by Mr. Ritchie is
7 that after she died they didn't get as much as they were
8 expecting. That is not a cause of action. If there is
9 money owed to the estate under the loan documents that
10 has not been paid and they can show that, it should be
11 tried. That would be justice. But this sale by a woman
12 who they admit had capacity and admit that they knew
13 about, in 2004, they don't get to wait eight-plus years.
14 The law does not allow that. She gets to dispose of her
15 property as she sees fit, and she did that.
16 And, Your Honor -- five more seconds -- for the
17 record Mr. Bujnoch's report to the Court reflects that
18 he has produced all of the banking records beginning
19 2004 forward through 2012, the date of the audit. I
20 produced before and have just recently from my computer
21 to Mr Richie and to Mr. Walden the balance of the
22 banking record for the time period that this does not
23 cover. If they have a legitimate complaint that I have
24 not complied with a discovery obligation, I will present
25 myself to this Court any time that the Court desires to
74
1 respond to that.
2 THE COURT: Well, that's one of the other
3 items we will be hearing today.
4 All right. After hearing the evidence -- and let
5 me just say this. I know that families, kids and
6 families, may take advantage of a parent to the
7 detriment of the other kids. I also know that sons
8 don't want to rock the boat if mama is happy and bring
9 her into the picture of a possible conflict between the
10 kids. They want their mom to have a happy home, happy
11 life. And I don't think that possibly mom got the best
12 deal, but at the same time mom got other benefits as a
13 result of this deal. And that is to have someone at the
14 ranch caring for her. I can understand why he insisted
15 upon buying the ranch if he was going to live there and
16 take care of mom. Then that would be in effect, in my
17 mind, a part of the consideration of the sale of the
18 ranch, was that promise from her son.
19 Accordingly, the Court is going to grant the
20 partial summary judgment which bars Bud from seeking a
21 recision of the sale. Now, that's not to say that we
22 don't have fact issues regarding the second note. I
23 believe we do. I believe there are issues there that
24 will need to be resolved by a jury.
25 After lunch we'll go ahead and address the other
75
1 motions that are before the Court. We will be in recess
2 say, for -- how long do you all think you need to be
3 gone to eat? Let's be back by 1:30.
4 (Lunch break ensued.)
5 MS. ALLEN: Your Honor, if I may as a
6 housekeeping matter. I neglected to provide the Court
7 with an order earlier. I've shared one with opposing
8 counsel and would like to share it with the Court, if
9 it's convenient.
10 THE COURT: All right. Let me just ask
11 -- this is again cause number P9127, Estate of Edell
12 Wade, deceased. And we just finished the hearing on one
13 of the pretrial motions and I granted it. And there has
14 now been handed to me an order granting defendant's
15 Amended Motion for Partial Summary Judgment concerning
16 the 2004 sale pertaining to all claims, and the question
17 at this point is has counsel approved it?
18 Has this order been passed around to opposing
19 counsel?
20 MS. ALLEN: I have shared it with
21 opposing counsel, Your Honor.
22 THE COURT: Does anyone object to the
23 form of this motion -- this order?
24 MR. RICHIE: I do, Your Honor. Don
25 Richie on behalf of Bud Wade. I have a proposed
76
1 addition.
2 THE COURT: And have you shared that with
3 counsel?
4 MR. RICHIE: I have now, Your Honor.
5 MS. ALLEN: I'm ready to respond at the
6 Court's pleasure.
7 MR. RICHIE: May I show the Court?
8 THE COURT: Yes.
9 MR. RICHIE: I apologize for my
10 handwriting, Judge.
11 THE COURT: Okay. Does the defense
12 attorney have any objections to the revisions to the
13 proposed order?
14 MS. ALLEN: We do, Your Honor.
15 THE COURT: All right.
16 MS. ALLEN: Yes, Your Honor. We do.
17 THE COURT: Okay. Well, let's let
18 counsel have a seat and then I'll hear your objections.
19 Let me first of all say this. You gave the first
20 one. Let him tell me why I should make the changes and
21 then you can rebut.
22 All right. Go ahead, counsel.
23 MR. RICHIE: Your Honor, the way I
24 understand the Court's ruling is that the question about
25 whether or not the sale could be rescinded after 2004
77
1 after waiting till 2012 to bring the claim, the Court's
2 ruling that the sale could not be rescinded, I did not
3 understand the Court to rule that the question was the
4 amount at which it was sold or the terms upon which it
5 was sold or whether or not Mrs. Wade for example had
6 been unduly influenced, did not understand this to be
7 foreclosed. Also the matter of the note modification is
8 --
9 THE COURT: Let me just say this. My
10 intention was to foreclose everything but the issues
11 regarding the second note.
12 MS. ALLEN: Understood, Your Honor. And
13 I believe that my order does that. It certainly is the
14 intent.
15 MR. RICHIE: Of course we don't think it
16 does that because it says all claims. The claim on the
17 note is part of --
18 THE COURT: Well, I will be glad to
19 clarify my order by going ahead and saying pertaining to
20 all claims except the zero interest note.
21 MR. RICHIE: We've pled breach of
22 fiduciary duty and --
23 THE COURT: Well, you'll have issues of
24 fiduciary relationship that are anew in this second
25 note, primarily because of the power of attorney.
78
1 Secondly, at that particular point it seems like the
2 facts show that there is more isolation than when they
3 first moved in. These are some things that I think will
4 probably be germane to the issues that you've challenged
5 the second note on. But as far as being able to set
6 aside the sale of the ranch to the defendant, I intended
7 to close the door on that issue today so that you all
8 would have a better understanding of where you go in
9 potential settlement negotiations and other matters.
10 As far as being able to maintain that there was
11 undue influence exerted, that she was susceptible to
12 undue influence because of diminished mental capacity,
13 these are all things that are left to be litigated. I
14 don't believe they are left to be litigated as far as
15 the actual sale of the ranch, only those issues as they
16 relate to the second note that was drafted at this point
17 is of concern to the Court.
18 MS. ALLEN: If the Court wishes to make
19 that clarification, we have no objection.
20 THE COURT: All right. I'm going to
21 grant some of the relief that you're requesting by going
22 ahead and finding that pertaining to all claims -- I'm
23 going to go ahead and insert "except the zero percent
24 interest note".
25 MR. RICHIE: If I might ask, Your Honor,
79
1 could you say "including all claims relating to the zero
2 interest note"?
3 THE COURT: Pertaining to all claims
4 other than the zero percent interest note.
5 MR. RICHIE: My concern was Mr. Stubbs
6 said it's his understanding -- this is my understanding
7 of what I heard him say, that he thinks only the amount
8 of the note is --
9 THE COURT: No, that's not true. The
10 other issues that I see regarding the note -- that's not
11 really on the agenda today. But if it helps you all as
12 far as clarifying the Court's position on that matter,
13 it does appear to me that we have a fact question of
14 whether or not the decedent voluntarily entered into a
15 note modification agreement knowing the actual principal
16 balance left owing on the note, because there's
17 apparently now -- you may have cleared this up with
18 giving them copies of the canceled checks, but through
19 earlier pleadings it appeared that there was a constant
20 $81,000 discrepancy in the amount of the note. That's
21 an issue. Also an issue on whether or not what
22 motivated mom to make a zero percent interest note. Was
23 it because she didn't like the IRS as alleged in the
24 pleadings or is it because she was in some way misled.
25 I don't know. But those I believe are fact issues that
80
1 are in dispute and would have to be resolved by answers
2 to special issues at a jury trial.
3 Now, I want you all to be able to litigate those
4 issues. So I will go ahead and clarify my ruling to go
5 ahead and say pertaining to all claims except regarding
6 the zero percent note.
7 MR. RICHIE: Thank you.
8 (End of proceedings.)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
81
1 C E R T I F I C A T E
2 STATE OF TEXAS )
3 COUNTY OF BURNET )
4 I, VICKI K. KANEWSKE, Official Court Reporter in
5 and for the County Court at Law of Burnet, Burnet
6 County, State of Texas, do hereby certify the above and
7 foregoing contains a true and correct transcription of
8 all portions of evidence and other proceedings requested
9 by counsel to be included in this volume of the
10 Reporter's Record in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that the total cost for the
14 preparation of this Reporter's Record is $834 and has
15 been paid for by Mr. Don Richie, Attorney at Law.
16 GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 3rd
17 day of March, 2015.
18
19
20
21 /s/ Vicki K. Kanewske
22 VICKI K. KANEWSKE, TEXAS CSR NO: 2159; EXPIRES: 12-31-16
23 Official Court Reporter, Burnet County Court at Law
24 220 S. Pierce, Burnet, Texas 78611
25 512-715-5244; Fax: 512-715-5226; Email: Vkaykan@live.com
82
03-15-00100-CV
Clerk's Record
VOLUME10F2
Trial Court Cause Number P9127
In the County Court
Of Burnet County, Texas
W.R. SAVAGE,Judge Presiding
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
IN THE MATTER OF THE ESTATE OF
EDELL WADE
Appealed to the
Court of Appeals for the Third District of Texas,
at Austin, Texas
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
Attorney for Appellant: SHELDON E. RICHIE
Address: 100 CONGRESS AVE, SUITE 1750 - AUSTIN, TEXAS 78701
Telephone No.: 512-236-9220
Fax No.: 512-236-9230
E-mail address: srichie@rg-austin.com
State Bar No.: 16877000
Attorney for: JAMES E. WADE, Appellant(s)
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
JANET PARKER,
Burnet County Clerk
220 South Pierce Street
Burnet, Texas 78611
CAUSE NO. P9127
ESTATE OF EDELL WADE, DECEASED § IN THE COUNTY COURT AT LAW
§ OF
§ BURNET COUNTY, TEXAS
INDEX
Name Volume 1 Page
Defendants’ Johnny and Amanda Wade’s Amended Motion For Partial 5
Summary Judgment Concerning The 2004 Sale (Pertaining to All Claims)
Filed March 20, 2014
Defendants Johnny Wade’s and Amanda Wade’s Traditional and No Evidence 166
Motion for Partial Summary Judgment on Plaintiff James Wade’s Claims for Attorney’s
Fees Against Defendants in their Individual Capacities
Filed March 20, 2014
Plaintiff's Motion For Continuance And, In The Alternative, Response To Defendants' 279
Amended Motion For Partial Summary Judgment Concerning The 2004 Sale
Filed April 7, 2014
Order Granting Defendants' Amended Motion For Partial Summary Judgment 611
Concerning The 2004 Sale (Pertaining to All Claims)
Filed April 14, 2014
Plaintiff's Emergency Motion To Reconsider Order Granting Defendants' Amended 612
Motion for Partial Summary Judgment Concerning The 2004 Sale or Alternatively,
To Sever Plaintiff's Claims Concerning The 2004 Sale Or For Permission To Appeal
Interlocutory Order
Filed April 23, 2014
Supplement to Plaintiff's Emergency Motion To Reconsider Order Granting 675
Defendants' Amended Motion For Partial Summary Judgment Concerning the
2004 Sale or, Alternatively, To Sever Plaintiff's Claims Concerning the 2004 Sale
or For Permission To Appeal Interlocutory Order
Filed April 24, 2014
Order 762
Filed April 29, 2014
Plaintiff's Third Amended Original Petition 765
Filed May 2, 2014
Motion for Exclusion of Evidence (For Plaintiff’s Failure to Respond to Discovery Requests) 820
Filed May 7, 2014
Defendants’ Hearing Presentation in Support of Motion for Exclusion of Evidence 848
Filed May 20, 2014
Defendants’ Motion for Partial Summary Judgment (as to all claims for relief based 950
on: default” on loan)
Filed May 22, 2014
Defendants’ Motion for Partial Summary Judgment (as to All Tort Claims, based 963
on Economic Loss Rule)
Filed May 22, 2014
Defendants’ Response to Plaintiffs’ Traditional and No-Evidence Motion for Summary 975
Judgment on their Claims for Breach of Fiduciary Duty and Conspiracy with Exhibits A-G
Filed June 5, 2014
Amanda Wade’s Response (in her capacity as Independent Executor) to Nancy Burns’ 1063
No-Evidence Summary Judgment Motion on Affirmative Defenses
Filed June 5, 2014
Volume 2
Response in Opposition to Plaintiff’s No-Evidence Motion for Partial Summary 1122
Judgment and Nancy Burns’ Joinder (as to Affirmative Defenses and Couterclaims)
with Exhibits 1-25
Filed June 5, 2014
Sixth Amended Answer To Plaintiff James E. Wade's Third Amended Original Petition 1263
and Second Amended Counterclaim of Johnny and Amanda Wade
Filed July 15, 2014
Sixth Amended Answer to Plaintiff James E. Wade’s Third Amended original 1275
Petition and Third Amended Couterclaim of Johnny and Amanda Wade
Filed July 15, 2014
Fifth Amended Answer to Plaintiff Nancy Burns’ Amended Petition for Damages 1296
for Breach of Fiduciary Duty and Second Amended Counterclaim
Filed July 15, 2014
Order 1314
Filed July 29, 2014
Response to James Wade’s Motion for Continuance, and Motion for Leave to 1315
Supplement Summary Judgment Proof
Filed July 24, 2014
Verification Pages for Sixth Amended Answer and Third Amended Counterclaim 1420
Filed August 4, 2014
Consolidated Response of Johnny and Amanda Wade to Plaintiff’s Motion for 1422
Traditional Summary Judgment on Defendants’ Counterclaims and Plaintiff’s Motion
to Dismiss Under Rule 91a
Filed September 9, 2014
Response of Johnny and Amanda Wade to Plaintiff’s Motion for Show Cause Order 1534
for Contempt and to Levy Sanction Award
Filed September 26, 2014
Charge Of The Court 1539
Filed October 6, 2014
Verdict 1541
Filed October 6, 2014
Plaintiff James E. Wade's Motion For Judgment Non Obstante Verdicto 1559
Filed October 15, 2014
Request For Denial Of Plaintiff's Motion For Judgment Non Obstante Verdicto and 1589
Defendants' Motion For Entry Of Judgment
Filed October 22, 2014
Final Judgment 1599
Filed November 17, 2014
Order Denying Plaintiffs' Motion For Judgment Notwithstanding The Verdict 1602
Filed November 17, 2014
Plaintiff's Motion For New Trial 1603
Filed December 12, 2014
Order Denying Motion For New Trial 1633
Filed January 26, 2015
James E. Wade's Notice Of Appeal 1634
Filed February 12, 2015
Plaintiff's Letter To Vicki Kanewske Requesting The Reporter's Record 1637
Filed February 20, 2015
Plaintiff’s Request for Preparation of Clerk’s Record 1640
Filed February 20, 2015
Defendant’s Request for Preparation of Clerk’s Record 1644
Filed March 11, 2015
Defendant’s Letter to Vicki Kanewske Requesting Reporter’s Record 1647
Filed April 3, 2015
Bill of Cost 1649
Clerk’s Certification that Appellate Record is True and Correct 1650
CAUSE NO. P9!27
IN THE ESTATE OF § IN THE COUNTY COURT
§
EBEtt WPidence introduced here m1de1 oath
and such exhjhjts, j f any, as ha"e been introduGed for youF eonsicleFa-tion under
the rulings of the Court - that is, what you have seen and heard in this courtroom
together with the law as given you by the Court. In your deliberations, you will
not consider or discuss anything that is not represented by the evidence in this
case.
3. Since eve1y answet that is requtreQ Oy t:lle cnarge rs Important, no Juror siioula:
state or eonsidet that ru:ry tequhcd atJswer is not hnpoitant.
4. You must not decide who you think should win, and then try to answer the
questions accordingly. Simply answer the questions, and do not discuss nor
concem yourselves with the effect of your answers.
5. You wi]] not decide the answer to a question b~l lot Gt: b~l ~~~[ing st:Fa¥iS, e:F by
any other method of chance. Do not return a quotient Y:erdict 8 quotient :llerdict
means that the jurors agree to abide by the result to be reached by adding together
each juror~s figures and dividing by the number of jurors to get an average. Do
not do any trading on your answers; that is, one juror should not agree to answer a
certain question one way if others will agree to answer another question another
way.
1539
6. Unless otherwise instructed, you may answer a question upon the vot_;-nf~or
more jurors. If you answer more thJlll one question upon the vote of~or more
jurors, the same group of at least t&iil of you must agree upon the answers to each
of those questions.
These jngtnwtjons are gjven yov because your conduct is subject to r:evieu' the same as
that of the witnesses, parties, attorneys and the judge. If it should be found that you have
disregarded any of these instructions, it will be jury misconduct and it may require another trial
by another jury; then all of our time will have been wasted.
The presiding juror or any other who observes a violation of the Court's instructions shall
innnediately want tire one who is violating the srune and caution die juror not to do so again.
When words are used in this charge in a sense that varies from the meaning commonly
understood, you are given a proper legal definition, which you are bound to accept in place of
any other meaning.
Answer "Yes'' or "No" to all questions unless otherwise instructed. A "Yes" answer
must be based on a preponderance of the evtdence unless you are otherwise instructed. If you do
not hnd that a preponderance of the evtdence supports a • Yes answer, ilien answer ..No.'
The term ''preponderance of the evidence,, means the greater weight of credible evidence
admitted in this case. A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence~ you must find that the fact is more likely true than not true.
Whenever a question requires an answer other than ~~Yes" or "No,'~ your answer must be based
on a preponderance of the evidence unless you are otherwise instructed.t
SIGNED October fn > 2014
PRESIDING JUDGE
~ /)
~~~~/)A JJ /_/I-/
B
{~"-:.~ , R C~~TYr]EX";DEPUTY
'See Texas Pattern Jury Charge (Business, Consumer, Insurance, Empllent) ~ 12) ("PJC") I 00.3. \
2
1540
----------------------------------------------------------------------~~~~--
ESTATE OF § COUNTY COURT AT LAW
§
EDELL WADE, § OF
§
DECEASED § BURNEt C(JUNI\i,TEXAS
QUESTION NO. 1
A relationship of trust and confidence existed because Edell Wade justifiably placed trust
• · ;n ~ ·Wade.
Did Johnny Wade's acceptance of the Modification Agrectnent comply wtth fits hductary duty to
Edell Wade?
Because a relationship of trust and confidence existed between them, Johnny Wade owed Edell
\Vade a fiduciary duty. To prove he complied v,:ith his duty, Johnny Wade must shovv---
a. the transaction in question was fair and equitable to Edell Wade~ and
b. Johnny Wade made reasonable use of the confidence that Edell Wade placed in him~ and
c. Johnny Wade acted in the utmost good faith and exercised the most scrupulous honesty
toward Edell Wade; and
d. Johnny Wade placed the interests oi Edell Wade before fits U\VI1, dtd not use the
advantage of fits posttlon to gmn any benefit for htmself at the expense of Edell Wade, and did
not place himself in any position where his self-interest tnight conflict with his obligations as a
fiduciary.
You are further instructed that a fiduciary dut~y ovved by one person to another extends Only to
dealings within the scope of the fiduciarv relationship between_ the parties.
Ans"\\1-cr "'Yes"' or "No".
Answer:
FILED TI-llS \.o_R·t"= DAY
~
0~ A.'D. 11
20
~ ~TY,TEXASDEPUTY
1541
CERTIFICATE AS TO .JURY QUESTION NO. 1
We, the jury, have ans"\\-Tered the above and foregoing question as herein indicated, and
here'\\1-ith retum sarrie into Court as our verdict.
(To be signed by the presiding juror if unanimous.)
Presiding Juror
(To be signed by those rendering if not unanimous.)
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1542
~ , n~F ""'~ DO',~
ESTATE OF § COUNTY COURT AT LAW
§
EDELL WADE, § OF
§
DECEASED § BURNE I CIJUN I 'Y, IEXAS
QUESTION NO.2
A relationship of trust and confidence existed because Edell Wade justifiabh-- placed trust
"ncl ~- ;n A "· WmlP ' ·
Did Arnanda Wade's acceptance of the Modification Agreement comply w1th her hductary dut~y
to Edell Wade?
Because a relationship of trust and confidence existed betw-een them, Amanda Wade owed Edell
Wade a fiduciary duty. To prove she cotnplied with her duty, Amanda Wade must show---
a. the transaction in question was fb.ir and equitable to Edell Wade; and
b. Amanda Wade made reasonable usc of the confidence that Edell Wade placed in her; and
c. Amanda Wade acted in the utmost good faith and exercised the most scrupulous honesty
toward Edell Wade; and
d. Amanda Wade placed the interests of Edell Wade Detore Fler 0\.Vll. (hQ not usc tfie
advantage of her posttton to gain any bencht for fierself at tfie expense of Edell Wad c. and did
not place herself in any position vvhere her self-interest might conflict '\vith her obligations as a
fiduciary.
You are further instructed that a fiduciary duty O'\ved by one person to another extends only to
dealings within the scoQ:e of the fiduciarv relationship between the parties.
Answer ·•Yes~· or ""No'".
JS;nswer~
1543
CERTIFICATE AS TO JURY QUESTION NO. 2
We, the jury, have answered the above and foregoing question as herein indicated., and
here"\\:ith return same into Court as our verdict.
(To be signed by the presiding juror if unanimous.) /
/-~/~~' -" _
_, __
P~ding Jliror
/
(To be signed by those rendering if not unanimous.)
1544
CASE NO. P9127
IN THE ESTATE OF § IN THE COUNTY COURT
§
EDELL WADE, § AT LAW
§
DECEASED § BURNET COUNTY, TEXAS
If you have answered ''no" to Question No. 1 or Question No. 2, then answer the
following Q11estion Otherwise_ do not ansv.rer the folloudng Q11estion
QUESTION NO. 3
What sum of money, if paid now in cash, would fairly and reasonably compensate the
Estate of Edell Wade for its damages, if any, resulting from either Johnny Wade or Amanda
\Vade's failure te eompl)i nith his/hCI fidueiat) duty to Edell Wade?
The loan modification resulted in a difference, calculated as:
a. the total amount Johnny and Amanda would have paid Mrs. Wade or her estate
under the terms of the February 6, 2004 Promissory Note, had it not been modified, from May I,
2009 through today; and
b. the total runount Johnny and Amanda actually pa1d from ·hl&j 5 28E13 through
today. ("\a '/ t , ;).. DOCf
Answer in dollars and cents, if any.
nswer:
1545
CERTIFICATE AS TO JURY QUESTION NO . .:!
We, the jury, have answered the above and foregoing question as herein indicated, and
herewith return saJile into Court as our verdict.
(To be signeO 6y tFie prestOtngJuror If unanimous.)
Presiding Juror
(To be signed by those rendering if not unanimous.)
1546
CASE NO. P9127
IN THE ESTATE OF § IN THE COUNTY COURT
EDELL WADE, § AT LAW
§
DECEASED § BURNET COUNTY, TEXAS
Answer the following question only if you answered ""No" to Question No. 1 or Question
N<> 2 Other>vise, d<> n<>t ans"'er the f<>li<>wing questi<>n.
To answer aYes~~ to any part of the following question, your answer must be unanimous.
Otherwise. you must not answer that part of the following question.
QUESTION NO. 4
Do you :Gn:d by clear and convincing evidence that the harn1 to Edell Wade resulted fr:otn
intentional bteaeh of fidueiat} dut} "' self-dealing ?
HClear and convincing evidence" means the measure or degree of proof that produces a
firm belief or conviction of the truth of the allegations sought to be established.
Answer:
1547
CERTIFICATE AS TO .JURY QUESTION NO 4
We, the jury, have answered the above and foregoing question as herein indicated, and
herewith return same into Court as our verdict.
(To be stgned by the prestdtng JUror If unammous-)
Presiding Juror
(To be signed by those rendering if not unanin1ous.)
1548
CASE NO. P9127
IN THE ESTATE OF § IN THE COUNTY COURT
§
EDELL WADE, § AT LAW
§
DECEASED § BURNET COUNTY, TEXAS
Answer the following question only if you unanimously answered "Yes" to Question No.
4 Otherwise, do not an surer the follourjng qvestjon
You must unanimously agree on the amount of any award of exemplary damages.
QUESTION NO. 5
What swn of money, if any, if paid now in cash, should be assessed against Johnny Wade and
Atnanda Wade and awrudcd to the Estate of Edell Wade as cxentplary dmnagcs, if any, fot d!C
emuiuet feuad in response to Question 4?
''Exemplary damages" means an amount that you may in your discretion award as a penalty or
by way of punishment.
Factors to consider in awarding exemplary damages, if any, are-
I. The nature of the wrong.
2. The character of the conduct involved.
3. The degree of culpability of Johnny Wade and Amanda Wade.
4. The situation and sensibilities of the parties concerned.
5. The extent to which such conduct offends a public sense of justice and propriety.
6. The net worth of Johnny Wade and Amanda Wade.
Answer 1n dollars and cents, if any.
~nsvver: ___________________________
1549
CERTIFICATE AS TO JURY QUESTION NO. !'i
We, the jury~ have ans'\\•ered the above and foregoing question as herein indicated, and
herewith return same into Court as our verdict.
(lobe signed by the presiding Juror 1l unannnous.)
-~~------------
Presiding Juror
1550
ESTATE OF § COUNTY COURT AT LAW
§
EDELL WADE, § OF
§
DECEASED § BURNETCOUNIY, IEXAS
JURY QUESTION NO.6
The Court instructs that, if you found that the Modification Agreement V\iaS wrongfully procured
in breach of fiduciary duty or othenNise, then, for purposes of determination ofattomeys' fees, if
any., the 2004 Promissory Note is in default and the Plaintiff shall be awarded attomeys' fees. Tf
you found that the Modification Agreement \Vas '\VYongfully procured, then answer the follov.ring
question. Othenvise, do not answer the following question.
1. What is a reasonable fee for the necessary services of James '"'Bud~' Wade and
Nancy Wade Bums' attorneys, stated in dollars and cents?
A.n~wer u·ith <.'!Il amount for each of the follou·ing·
(1) For representation in the trial court.
~nswer: ________________
(2) For representation through appeal to the court of appeals.
(3) For representation at the petition fOr review stage in the Supreme Court of Texas.
~nsvver: --------------~
(4) If accepted, for representat1on at the ments bnehng stage and tfuough oral argument
and the completion of proceedings in the Supreme Court of TL:xas.
i\nswer: ______________~
1551
CERTIFICATE AS TO JURY QUESTION NO. 6
We, the jury, have ans'\.vered the above and foregoing question as herein indicated., and
herewith return same into Court as our ·verdict.
(Io be stgncd by the presiding Juror If unanimous.)
Presiding Juror
(To be signed by those rendering if not unanimous.)
1552
CASE NO. P9127
IN THE ESTATE OF
~
IN THE COUNTY COURT
EDELL WADE, § AT LAW
§
DECEASED § BURNET COUNTY, TEXAS
QUESTION NO 7
Did AMANDA WADE comply with her fiduciary duty in connection with her
administration of the Estate of Edell Wade?
In administering the estate, AMANDA WADE owed the beneficiaries of the estate a
fiduciary duty. To prove she complied with this duty in connection with Modification
Agreement, ~~I\.'l~d'.fBA WABE rnust show that, drning her adrninistra:tion of the estate of EOetl
ni:...>.. .
I. the administration of the estate was fair and equitable to the beneficiaries, considering
AMANDA WADE's obligations in administering the estate; and
2. AMANDA WADE made reasonable use of the confidence placed in her as the result of
ner appomunent; and
3. AMANDA WADE acted in the utmost good faith and exercised the most scrupulous
honesty toward the beneficiaries in connection with the estate administration in question; and
4. AMANDA WADE placed the interests of the beneficiaries before her own and did not
use the advantage of her :Q:Osition to gain any benefit for herself at the expense of the
beneficiaries; and
5. AMANDA WADE fully and fairly disclosed to the beneficiaries all material facts known
to AMANDA WADE conceming the estate in question that might affect the rights of the
beneficiaries.
Answer "Yes" or 11 No."
Answer: ~~s
1553
CERTIFICATE AS TO JURY QUESTION NO. 7
We, the jury, have answered the above and foregoing question as herein indicated~ and
herewith return same into Court as our verdict.
(Io be s1gned by the presJdmgJuror 11 unammous.)__~ /
(To be signed by those rendering if not unanin1.ous.)
1554
CASE NO. P9127
IN THE ESTATE OF § IN THE COUNTY COURT
EDELL WADE, § AT LAW
§
DECEASED § BURNET COUNTY, TEXAS
QUESTION NO. 8
Did Amanda Wade act in good faith, whether successful or not. in defending the action
for her removal?
"Good FaithH means an action that is prompted by honesty of intention and a reasonable
belief that the action was probably correct?
ANSWER: _ _v:;'---"-c_s_·'-----
1555
CERTIFICATE AS TO .JURY QUESTION 1"10 !!
We, the jury, have answered the above and ft)regoing question as herein indicated, and
herewith return same into Court as our verdict.
(To be signed by those rendering if not unanimous.)
1556
CASE NO. P9127
IN THE ESTATE OF § IN THE COUNTY COURT
§
EDELL WADE, § AT LAW
§
DECEASED § BURNET COUNTY, TEXAS
If you answered "yes'' to Question 8, then answer Question 9. Otherwise, do not answer
QUESTION NO. 9
What sum of money do you find to be the necessary expenses and disbursements~
including reasonable attorney's fees, for defending this action for removal?
Answer in dollars and cents for each of the following:
For representation in the trial court
Answer:~ 3 3 3 ChJ 0
2. For representation through appeal to the court of appeals.
n-<>
A ns"'er 1/;.20; oDD ·-
3. For representation at the petition for review stage in the Supreme Court of
Texas.
oo
Answer: :j} ·75 DD ·-
4 For representation through oral argument and the completion of
proceedings in the Supreme Court of Texas.
nS!--
Answer:$ /0,0 c? O
1557
CLERK'S CERTIFICATE THAT APPELLATE RECORD
IS TRUE AND CORRECT
THE STATE OF TEXAS §
§
COUNTY OF BURNET §
I, Janet Parker, Clerk of the County Court of Burnet County, Texas do hereby certify that
the documents contained in this record to which this certification is attached are all of the
documents specified by Texas Rules of Appellate Procedure 34.5(a) and all other documents
timely requested by a party to this proceeding under Texas Rules of Appellate Procedure
34.5(b).
GIVEN UNDER MY HAND AND SEAL at my office in Burnet County, Texas on this the
16th day of April, 2015.
JANET PARKER,
Burnet County Clerk
220 South Pierce Street
Burnet, Texas 78611
1650