                                                                               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

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0                Address: _ _ _ _ _ _ _ .....•. _ __                            --- -- - -


                 Phone Numbers: Home _ _ _ _ _ _ BuslnoH: - - - - - - Other: _ __
                 File Name:
                 Fee Arrangement: - - - -
                 Date:
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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


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                                                                                                                                                                                    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<a--
                                 Thj..s Period
                                         7.20
                                                       Principal
                                                     This Period
                                                       1,840.90
                                                                          Princi·pa~
                                                                        New Bal.ance
                                                                         430,067.30
                                                                                        Interest
                                                                                         To Date
                                                                                         295.10

0    -~..9
       40
       41
       42
                 £/ 1/09
                 7/ 1/09
                 8i
                         l/Q9


                         l/C9
                                         "i, 17
                                         7.14
                                         7.1:
                                         7,08
                                                       1.840193
                                                       1,84()196
                                                       1,840199
                                                       1,941102
                                                                         428,226.•-37
                                                                         426,385.41
                                                                         424,544.42
                                                                         422,703.40
                                                                                         302.27
                                                                                         3o9.c
                                                                                         316.52
                                                                                         323.60
       43        <::I    1/09            7105          1,841105          420,862.35      330.65
       44      10/      l/C9             110:.         1,941.09          419,021.26      337.66
       45      ::.1/    1/C9             6.98          1,841.12          417,180.14      344.64
       46      :..21 1/C!l               6195          1,941.15          415,338.9.9     351.59
    --------------------------------------------------------------------------------
    Subt:o:al:          35.47       22,091.73      415,338.99          351.59
       4.7      1/ 1/10                  6~92          1,841.19          413,497.81      338.5~
       48       '2.1 1/10                6189           1,941~21         411,656.60      365.-'0
       49        31 1/10                 6186          1,841.24          409,815.36      372.26
       !:0      4./ 1110                 6~83          1,841.27          407,974.09      379.09
       Y:1       'fil 1/10               6.80          1,941.30          406,132.79      385.89
       52        E/ l/10                 617"'1        1,841.33          404,291.46      397.. 66
       53       7/ 1/10                  6.74          1, 841136         402,450.10      3!j9.40
       54       8/ 1110                  6. 71         1,841.39          400,608.71      406.11
       !;5      S/ 1/10                  6.68          1,941.42          398,767.29      412.79
       56      1C/ 1/10                  6.65          1,841.4!>         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:</ l/22                     2.16           : ,845.94     127,743 . 97      1, 060.17
     -··· ---- --------------------------------------------------------------------------
    Subtotal:                27.95       22,149.25      127,?43.97        1,060.17
      2(o3          1/ 1/23                      2. 1 3         : ,84~.97     125,898.00        1,062.30
      204           21 l/23                      :l.  10        :,846 . 00    124,052.00        1,064 . 40
      205           3/ l/23                      2.07           "- ,846.03    122,205.97        1,066.47
      2Ct6          4/ l/23                      2.04           :,946 . 06    120,359.91        1,069.51
      207           ~·/ l/23                     2.01           :. ,946.09    119,513.82        1,070.52
      206           61 1/23                      l . 98         :,846.12      116,667.70        1,072.50
      209           !/ 1/23                      "!.. 94        ·_,846.16     1 14,1!21.54      1, ()7 4. 4 4
      :l10          t:/ 1/2:J                    l. 91          :,846.19      112,975.35        1,076.35
      ::!1:         9/ 1/23                      1. 88          1,946.22      111,129.13        1,078.23
      212          10/ 1/23                      :.as           :,846 . 25    109,292.98        1,030.08
      213          11/ 1/23                      1 . 82         :,846 . 29    107,436.60        1,091.90
      214          12/ 1/23                      1.79           :,846 . 31    105,590.29        1,033.69
    --------------------------------------------------------------------------------
    .5..lbtota1:        23.!>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
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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·
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                                                                          oo:r. o'l'· tbe a
                                                                                         Blh'~




                                    · . "'   '           ..
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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




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                                     .




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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                                              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-




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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 TAJ<E WRITTEN DEPOSITION

          TO:       MICHAEL MARTIN. at 512 E. Fourth Street, Lampasas, Texas 76550

                    Please Ulke notice that pursuant to Rule J 99 of the Texas Rules of CivH Procedure,
          MICHAEL MARTIN \\-ill provide his testimony in this Cause in this deposition by written
          questions. The deposition will take place on or after Jnnunry 30. 2012 at 9:00 n.m. pursuant to
          Rule 200 ofthe Texas Rules ofCivil Procedure. at 512 E. Fourth Street. Lampasas. Texas 76550.
           The direct questions to be propounded during the deposition are uttached tn this Notice and
          incorporated herein by reference.
                    This deposition on written questions will be taken by a person authorized under CPRC §
          20.001.
                    Your attention is directed to the penalties set forth in Rule 215 of the Texas Rules of
          Civil Procedure for failure of the deponent to appear or to comply with the discovery requested.
0                                                         Respectfully ~itted.


                                                           e:/~
                                                          By:~~
                                                          Evan Stubbs
                                                          Texas Bar No. 24039198
                                                          202 North Porter Street
                                                          lnmpnsns, Texas 76550
                                                          Tel. (5 J 2) 556-8970
                                                          Fax. (512) 556-8975
                                                          Attnmey for Defendant
                                                          AMANDA WADE
                                                             1




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0                                       CERTIFICATE OF SERVICE

                I certify that on JanuaryJZ.       2012. a true and correct copy of Defendant's Notice of
         Written Deposition wa..; sc:rved by certified mail. return receipt requested on DON WALDEN at
         7200 North Mopac. Suite 300. Austin. Texas 78731 .

                                                           ~~
                                                     ~ ·::::¥±;?
                                                     Evan Sililibs




0



                                                       2




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0                I.
                                WRITtEN QUESTIONS TO MIKE MARTIN
                        Are you a licensed attorney in the state of Texas?


                        ANSWER:

                 2.     How many years have you been licensed to practice law in the State of Texas?


                        ANSWER:

                 3.     Where is your practice located?


                        ANSWER:

                 4.     Did you, at any time, represent Edell Wade?


                        ANSWER:

                 5.     Please state the date(s) that you represented Edell Wade?


                        ANSWER:

                 6.     What documents did you prepare for Edell Wade?



0                7.
                        ANSWER:

                        In regard to the Loan Modification dated May 1. 2009 attached hereto as Exhibit
                        No. 1. did you prepare this document?


                        ANSWER:

                8.      Were you present when Edell Wade signed the document listed in Question No.
                        7?

                        ANSWER:
                                                          3




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0                9.      Were you satisfied that Edell Wade was signing the document. listed in Question
                         No. 7, ofher own volition?


                         ANSWER:

                 10.     Did each of the documents that you prepared for Edell Wade represent the wishes
                         of Edell Wade as you understood her wishes?


                        ANSWER:

                 II.    Do you believe that Edell Wade understood each of the documents you prepared
                         for her when she signed them?


                        ANSWER:



                 Michael Martin                                    Date




                 Before me, the undersigned Notary Public, on this day appeared Michael Martin, 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

0        the best of his knowledge.       SUBSCRIBED AND SWORN TO BEFORE ME on
         - - - - - - - - - - - ' b y Michael Martin.



                                                     Notary Public, State of Texas




                                                         4




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              0510612013

              MARTI,..MIUICAN NIK/A MARTIN,MILLICAN,HENDERSON & SHRUM
              ATTN: RECORDS
              512 E . 4TH STREET
              LAMPASAS, TX 76550

              RE: Recotds Pertaining to: EXHIBIT ~A~

              Dear Custodian of Records,

              The attorney for the PLAtNnFF t.as commissioned us to obtain records spedlied In the enclosed Subpoena In rafaranca to a lltlgatacl
              matter.

              The Subpoena is Issued in accordance with Rule 200 T .R .C.P. and falls under the exception to confidentiality 1- (Rule 509(<1)(4)
              T .R.C.E. Exceptions .... ) as to the communication or record relevant to an Issue of the physical, mental or emotional condition of a patient
              In any proceecllng in which any party relies upon the condition •• a part of the party'• claim or defense.....

              Listed below are the necessary Sleps to complete the legal papers, please -       the following InstructiOnS'

           1.     Plea- provide a COMPLETE copy of the records requ-ted.
           2.     There Ia a Deposition by Written Questions to be answered by the cuatodlan of recorda. The Cuatodlan must
                  answer and SIGN on the WITNESS UNE.           This signature of the custodian MUST be notarized.
           3.     The Custodian must also sign the Affidavit (If one Is enclosed) on the Affiant line and have this signature
                  notarized also.
           4.     Please have the Notary stamp with a Notary Seal, the questions and the Affidavit which they just notarized.
           5.     ANSWERS: Answer Al.b.questiona, leave !1Q blanks, and you cannot answer NIA.
           6.     NOTARY: If you need a notary, and do not have one, no matter what state you are located In, PLEASE CALL.
                  and we will provide a Notary.
           7.     Please Include an explanation for a No-Record Deposition.
           8.     ON THE AFFIDAVITS: When you ara counting pages, a double aided page actually counts as we pages. We
                  prefer the page count blank, and our deposition officer will fill this ln. IF YOU MAKE A MISTAKE, we have to
                  Redo the Affidavit.
           9.     Please call If your f - for the production of your documanta Ia over $150.00



0             IF YOU HAVE QUESTIONS OR COMMENTS TO COMPLETE THIS REQUEST, PLEASE CALL (210) 386-0800 OR (BOO) 738-9105.

              Respectfully,




              ~£~
              Jamie Condra
              jcondra@lorr.com

              Stephanie Cantu
              scantu@lorr.com


              -*Please note the email address for sending Invoices, correspondence, questions or
              anything else needed.




    57996.2                                                               EXHIBIT ..A"                                                                   JC




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                                                      SUBPOE NA DU CESTEC U~
                                                               THE STATE O F T EXAS

0             COUNTY OF BURNET
              To the Sheriff, Constable or any other person authorized t o - and execute a Subpoena as provldaclln Rule 176, T .R .C .P .

              Gnlellnga,
              You are hareby commanded to Subpoena and Summon the following wotness:
              Custodian of Records for: MARTIN, MILUCAN, HENDERSON & SHRUM

              to be lind ap..- befont a commissioned otncer of the State of Te•as, a Notary Public with L.O.R.R. RECORD RETRIEVAL,
              503 E. Ramsey, SUite 201, San Antonio TX 782111, or their designated agent ON OR BEFORE Friday Mty 31 2013 at _tt
              AM_, AT THE OFFICE OF THE CUSTODIAN, or at another agraecl upon time as the Officer may deslg~. then and there
              to give evidence by Deposition by Written Questions.
              The witness Ia also to produce for Inspection and photocopying (to be attached to the Deposition):

              ALL DOCUMENTS ANDIOR ITEMS AS REFERENCED IN EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF

              pertaining   to: : EXHIBIT "A"
              This Subpoena Ia being Issued at the Instance of the PLAINTIFF In that certain Cause NO. P9121 pending on the doclcet IN
              THE COUNTY COURT AT LAW OF BURNET COUNTY, TEXAS, Styled:

                            ESTATE OF EDELL WADE, DECEASED                         VS

              and there to remain from day to day and tlme to time until dlacharged by me according to Law. T .R.C .P . Rule 176.8(a) slates:

              Enforc...,_,t of Subpoena. (a) Contempt. Failure by any person without adequata ucuse to obey a subpoena served upon
              that person may be deemed In contempt of the court from which the subpoena Ia laeued or a dletr!c:t court In the county In
              which the subpoena Ia served, and may be punished by nne or confinement, or both.




              WltneBS my hand on this. the ..Jl§... dey of ...M!!lL,, 20....1iL




0             Officer's Return
              CAME TO HAND _ _dey of                       20___, and e-uted the _ _day of                  20_ by delivering to
              - - - - - - - - - - - - - - - - • true copy of thla subpoena together with the accompanying deposition by
              wrttten questions, and tendering the lawful wltn- ... of   ~        s.____

                                                                                                       Authorized person under Rule 176 T .R .C .P




    57996.2                                                                       EXHIBIT"A"                                                         JC




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       Page 59 of 86
                                                                        NO. Ps127
                                                                             §

0          ESTATE OF EDELL WADE, DECEASED


           VS
                                                                            §
                                                                            §
                                                                             §              IN THE COUNTY COURT AT lAW


                                                                                            0~
                                                                            §
                                                                            §
                                                                            §               BURNET COUNTY, TEXAS
                                                                            §
                                              NOTICE OF INTENTION TO TAKE DEPOSITION
                                                      BY WRITTEN QUESTIONS
          TO:
          DON E. WALDEN                                  DENNIS BWNOCH


          You wiH take notlca that after 20 days fl'om the service of a copy hereof with attached questions, a deposiUon by written questions
          will be taken of the CUSTODIAN OF RECORDS for:

           MARTIN & MILLICAN N/KJA MARTIN, MILLICAN, HENDERSON & SHRUM
           512 E. 4TH STREET
           LAMPASAS, TX 76550

          at the olllces of LORA, or at another agreed upon time ancllor place ~ a Notary PubDc, an Officer of the Stale of Texas and
          employee of LORA, 503 E. Ramsey, Su.._ 201, San Antonio TX 78218, or their designated agent. Which depositiOn, wHh
          altachacl questions, may be used •n evidence upon the trial or the above styled and numbered cause pending In the above named
          Court.

          Notice I& further given that request Is here made aa authorized under Rule 200, Texas Rules of Court, to the Ofllcar .8Uihorized to
          take this deposition to lsaue a SUBPOENA DUCES TECUM and cause to be served on the wHness to produce for Inspection and
          photoc:opytng: ALL DOCUMENTS AND/OR ITEMS AS REFERENCED IN EXHIBIT "A" ATTACHED HERETO AND MADE A
          PART HEREOF

          pertaining to: EXHIBIT "A", and tum aR such recorda aver to the Officer authorized to take this depoaltlon for Inspection and
          photocopying, the same may be made by him and attached to said deposition.




         SHELDON E. RICHIE, SBID: 168nDOO
         PATRICIA M . OVIATT, SBIB: 24046571
         RICHIE & GUERINGER, PC
         100 CONGRESS AVE SUITE 1750
         AUSTIN, TX 78701


0        Ph: (512) 236-9220 Fax: (512) 236-9230
         ATTORNEYS ~OR THE PLAINTIFF
                                                             CERTIFICATE OF SERVICE

                                                                                                              o..
         I certify that a true and exact copy of the foregoing Notice of Intention to Take Deposition by Written estlons - • provided to the
         respective pa~ or aUomeys of record, pursuant to Rule (21e), by registered man, postage prepaid, hand delivered or telephonic
         documerrt trantiler.


         Date:_ _ _ _~o!i5w!QBiil0151!-.1.t,;3~---                By:
                                                                             ADulA.&ru C..~i t) u>f>·
                                                                                           SHELDON E . RICHIE




         57996.1                                                        EXHIBIT"A"                                                        .JC




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    Page 60 of 86
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


0
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    RR VOL 3 OF 4 AT 14-86
    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




0
                                                                                               REDACTED
         TAB J
         RR VOL 3 OF 4 AT 14-86
         Page 62 of 86
    .. ..
                                                               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




0
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    RR VOL 3 OF 4 AT 14-86
    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/1</A MARTIN, MILLICAN, HENDERSON
          8. SHRUM would keep records or documents pertaining ro EXHIBIT "A"? If yes, please Identify the name
          and a d d - of that loclltlon, If knowtl.

          ANSVVER·------------------------~--------------------------------------
          11. Please hand all such records.as outlined in the Subpoena Duces Tecum to the Officer taking your
          deposition for Inspection and photocopying. (TMse WilT be at no expense to you, and the Officer will
          return the originals of your records to you after they have been both Inspected and copied). Have you
          done as requested? If not, why not?

         ANSVVER·-------------------------------------------------------------------
          12. Have any recQrds of any kind been des1royed or are any records missing? If yes, why? Please
          describe those records that have been destroyed ·or are missing by MARTIN & MARTIN N/J<JA MARTIN,
          MILLICAN, HENDERSON & SHRUM.
         ANSVVER:.___________________________________________________________________

         13. In the event that no records can be found, are there document archives (I.e. microfiche) or document
         retention policies which explain their absence? If yes, please explain your archiving and/or retention policy.
         Please Identify who has knowledge of those archives and/or retention policies for MARTIN & MILLICAN
         N!KIA MARTIN, MILLICAN, HENDERSON & SHRUM.
         ANSVVER:.______________________________________________________________________




0                                           VVI"FNESS CUSTODIAN OF. RECORDS_

         I,                                   .A Notary PubRc In and for the State of Texas do hereby. certify that
         the foregoing answers of the witness were made by the saki witness and swam to and subscribed before
         me: The records attached hereto are ~ c1: 'J''kxztes of the original records.

         GIVEN UNDER MY HAND AND SEAL on this the------· day of________________,20_ _.




                                           Notary Public In and for the State of Texas




        57996.1                                             EXHIBIT ':A"                                          .JC




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    Page 64 of 86
         '•    r

    ·-
                                                                   NO. P9127
                                                                        §
                   ESTATE OF EDELL WADE, DECEASED                       §
0
                                                                                       IN THE COUNTY COURT AT LAW
                                                                        §
                   VB   .                                               §              FOR
                                                                        §
                                                                        §
                                                                        §              BURNET COUNTY, TEXAS
                                                                        §

                                                              .AFFIDAVIT
                   RI!CORDS PERTAINING TO: EXHIBIT "A"

                   Before me, the undersigned authority, personally appeared._ _ _ _ _ _ _ _ _ _ _ _ _ _ __.
                   who being duly swam, deposed as follows:

                   My name Is                                             . I am over 18 years of age, of sound mind, capable
                   of making this affidavit, and personally acquainted with the facts herein stated:

                   I · am the CUSTODIAN OF RECORDS OF MARTIN & MILLICAN N/KIA MARTIN, MILLICAN,
                   HENDERSON & SHRUM. Attached hereto are                        pages of records from MARTIN & MILLICAN
                   N/KIA MARTIN, MILLICAN, HENDERSON & SHRUM. These said                         pages of records are kept by
                   MARTIN & MILLICAN NIK/A MARTIN, MILLICAN, HENDERSON & SHRUM In the regular course of
                   business and It was the regular course of business of MARTIN & MILLICAN N/KIA MARTIN, MILLICAN,
                   HENDERSON & SHRUM for an employee or representative of MARTIN & MILLICAN N/K/A MARTIN,
                   MILLICAN, HENDERSON & SHRUM, or other lndMdual, w!1h knowledge of the act, event, condition,
                   opinion, or diagnosis, recorded to make the record or to transmit information thereof to be Included in
                   such record; and the record was made at or near the time or reasonably soon thereafter. The records
                   attached hereto are the originals or exact duplicates of the originals.



                                                                   AFFIANT
                   SUBSCRIBED AND SWORN TO BEFORE ME on thla, the _ _ __.day or _ _ _ _ ___. 20_ _



0                                                     Notary Public In and for The StataofT-


                                                               Notary's Printed Name



                                                              My Commlaalon Explrea




    5711118.2                                                        EXHIBIT"A"                                                 .JC




0
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              RR VOL 3 OF 4 AT 14-86
              Page 65 of 86
                                                           NO. P9127
                                                                §

0          ESTATE OF EDELL WADE, DECEASED

           vs
                                                                §
                                                                §
                                                                §
                                                                §
                                                                                   IN THE COUNTY COURT AT LAW

                                                                                   OF
                                                                §
                                                                §                 QURNET COUNTY, TEXAS
                                                                §


                               QUESTIONS TO BE PROPOUNDED TO THE WITNESS,
                   THE CUSTODIAN OF RECORDS FOR: MARTIN & MILLICAN N/KIA MARTIN, MILLICAN,
                                           HENDERSON &.SI:IRUM




          ANSWER~~~~~~~=s~~~~~~~~~~~~--~~~3D~~~------
                                                                            r
          2. Did you receive a ubpoena Duces Tecum for the production of: ALL DOCUMENTS ~NO/OR ITEMS
          AS REFERENCED IN EXHIBIT"A" ATTACHED HERETO AND MADE A PART HEREOF pertaining to
          EXHIBIT "A"?

          ANSWER      ~ .;L~
          3 . Are you able to identiry these records as the original or true and correct photostatic copies of the
          originals?

                       ~~~~-------------------------------------------------------------
          ANSWER ___

          of regularly

          ANSWER~
                      :r:
          4. Were these records made and kept in the regular course of your business? (Business means any kind
                              activity, whether conducted for profit or not).

                                                                      •

          5. In the regular course or your business, did the person who signed or otherwise prepared these records

0         eUber have personal knowledge of the enbies on these records or obtain the information to make such
          records frcm sources who have such personal knowledge?

         ANSWER~~
          6. Are these records under your care, supervision, direction, custody or su~to-your control?

          ANSWC:R     ~
          7. Are these records made at or near the time of tile act, event or condition recorded on the records, or
          reasonab!¥ soon thereafter pertaining to the incident in question?

         ANSWER          ~
         8. Were these records kept as described above?

         ANSWER-r1 ~~
                   , ~~--------------------------~-----------------------------


         57996.1                                            EXHIBIT"A"                                               JC




0
    TAB J
    RR VOL 3 OF 4 AT 14-86
    Page 66 of 86
          9. Have you been requestea, llirectecl, or has it ever been suggested by any person (whether doctor,
          :awyer or ar:tyone ellle) that any part of the records subject to this deposition be withheld or protected tram
          d iscovery for any reason? If so, please state the name and address of the person who conveyed this

0         information to yo.J ~n~ ~hen such event occurred.

          ANSWER             !\.) J
          10. Are there any other locations where MARTIN & MILLICAN N/K/A MARTIN, MILLICAN, HENDERSON
          & SHRUM would keep records or documents pertainin.g to EXHIBIT "A"? If yes, please identify the name
          and address of that lr~on, If known.

          ANSWER             A.   v
         11 . Please hand all such records. as outlined in the Subpoena Duces Tecum to the Officer taking your
         deposition for inspection and photocopying. (These win be at no expense to you, and the Officer will
         return the originals of your records to you after they have been both inspected and copied). Have you
         done as requ~stecl? If not, why not?

         ANSWER              <-)
         12. Have anY..      rds of any kind been destroyed or are any records missing? If yes, why? Please
         descr.be those records that have been destroyed or are missing by MARTIN & MARTIN N/1</A MARTIN,
         MILLICAN, HENDERSON & SHRUM.

         AN&W£R:__      ~~=--0--------------------------------------------
         13. In the event that no records can be found, are there document archives (i.e. microfiche) or document
         retention policies which explain their absence? If yes. please explain your archiving and/or retention policy.
         Please identify who has knowledge of those archives and/or retention policies for MARTIN & MILLICAN
         NIK/A MARTIMLICAN, HENDERSON & SHRUM.

         ANSWER:             D




0                                          WITNESS CUSTODIAN OF RECORDS .•
         I,                                     A Notary Public in and for the State of Texas do hereby certify that
         the foregoing answers of the witness were made by the said witness and sworn to and subscribed before
         me. The records attached hereto are elQiloCt duJII(icates of the original records.
         GIVEN UNDER MY HAND AND SEAL on this the _ _ _ _ day of_ _ _ _ _ _ _ _ _.2 0_ _.




                                          Notary Public in and for the State of Texas




        57996.1                                            EXHIBIT '.'A"                                           .JC




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    Page 67 of 86
      ..   ,


                                                                 NO. P9127
                                                                       §
                ESTATE OF EDELL WADE, DECEASED                         §              IN THE COUNTY COURT AT LAW

0               vs
                                                                       §
                                                                       §
                                                                       §
                                                                                      FOR
                                                                       §
                                                                       §              BURNET COUNTY, TEXAS
                                                                       §


                                                            .AFFIDAVIT
                RECORDS PERTAINING TO: EXHIBIT "A"

               Before me, the undersigned authority, personally appeared,_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___,
               who _b eing duly swom, deposed as foiiOW!I:

               My name Is                                             . I am over 18 years of age, of sound mind, capable
               of making this affidavit, and personally acquainted with the facts herein stated:

                I · am the CUSTODIAN OF RECORDS OF MARTIN & MILLICAN NIK/A MARTIN, MILLICAN,
                HENDERSON & SHRUM. Attached hereto are                        pages of records from MARTIN & MILLICAN
                N/KIA MARTIN, MILLICAN, HENDERSON & SHRUM. These said                         pages of records are kept by
                MARTIN & MILLICAN NIKIA MARTIN, MILLICAN, HENDERSON & SHRUM In the regular course of
                business and it was the regular course of business of MARTIN & MILLICAN N/KIA MARTIN, MILLJCAN,
                HENDERSON & SHRUM for an employee or representative of MARTIN & MILLICAN N/KIA MARTIN,
                MILLICAN, HENDERSON & SHRUM, or other Individual, With knowledge of the act, avant, condition,
                opinion, or diagnosis, recorded to make the record or to bansmit information thereof to be Included in
                such record; and the record was made at or near the time or reasonably soon thereafter. The records
                attached hereto are the originals or exact duplicates of the originals.



                                                                  AFFIANT
                SUBSCRIBED AND SWORN TO BEFORE ME on thla, the _ _ __;day of _ _ _ _ __,2o_ _




0                                                  NoblrY Public In and for The State of Texas


                                                             NobiJy's Printed Name


                                                            My Commlsak>n Expl,..




    57998.2                                                         EXHIBrr"A"                                               .JC




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           RR VOL 3 OF 4 AT 14-86
           Page 68 of 86
0   Date: February 6, 2004
                                                Promissory Note
                                                                                rti COPY
    Borrower:        JOHNNY WADE and AMANDA WADE, husband and wife.

    Borrower's Mailing Addrea:

                     JOHNNY WADE and AMANDA WADE
                     REDACTEDREDACTEDREDACTED
                        REDACTED
                     Riverside County

    Lender:          EDELL WADE

    Plaee for Payment:

                      REDACTED
                     Lampasas, Burnet County, TX 76550, or any other place that Lender may designate in
                     writing.

    Principal Amount:        $500,000.00

    Annuallntereat Rate:            Two Percent (2%)
    Maturity Date:           February I, 2036

    Annual Interest Rate on Matured, Unpaid Amounts:             Twelve Percent (12%}

    Terms of Payment (priDclpalaad latereat):

0          Aa:rued interest is payable on the 1st day of March, 2004 and on the 111 day of each succeeding
    month through February 1, 2006. Principal and interest are due and payable in monthly installments of ·   -
    ONE THOUSAND EIGHT :m.JNDRED FORTY-EIGHT AND 10/100 DOLLARS ($1 ,848.1 0), each,
    beginning February 1, 2006, and continuing regularly on the 1"' day of each succeeding month until
    paid Payments will be applied first to accrued interest and the remainder to reduction of the Principal
    Amount.
    Security for Payment:
           This note is secured by a vendor's lien and superior title retained in a deed from EDELL
    WADE to Borrower dated of even date herewith and by a deed of trust of even date herewith from
    JOHNNY WADE and AMANDA WADE to Pat E. Cavness, Trustee, both of which cover the
    following real property:

            That certain real property more particularly described on the attached Exhibit ..A".



     111323-2 0210412004




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    RR VOL 3 OF 4 AT 14-86
    Page 69 of 86
0   Other Security for P ayment: None

           Borrower promises to pay to the order of Lender the Principal Amount plus interest at the
    Annual Interest Rate. This note is payable at the Place for Payment and according to the Terms of
    Payment. All unpaid amounts arc due by the Maturity Date. After maturity, Borrower promises to pay
    any unpaid principal balance plus interest at the Annual Interest Rate on Matured, Unpaid Amounts.

            If Borrower defaults in the payment of this note or in the performance of any obligation in any
    instrument securing or collateral to this note, and the default continues after Lender gives Borrower
    written notice of the default and ten (10) days opportunity to cure such default. Lender may declare the
    unpaid principal balance, earned interest, and any other amounts owed on the note immediately due.
    Borrower and each surety. endorser, and guarantor waive all demand for payment. presentation for
    payment. notice of intention to accelerate maturity, notice of acceleration of maturity, protest. and
    notice ofprotest. to the extent permitted by law.                                         ·

            Borrower also promises to pay reasonable attorney's fees and court and other costs if this note
    is placed in the hands of an attorney to collect or enforce the note. These expenses will bear interest
    from the date of advance at the Annual Interest Rate on Matured, Unpaid Amounts. Borrower will pay
    Lender these expenses and interest on demand at the Place for Payment. These expenses and interest
    will become part of the debt evidenced by the note and will be secured by any security for payment.
    Prepayment:
           Borrower may prepay this note in any amount at any time before the Maturity Date without
    penalty or premium.

    Applicatioa of Prepayment:
           Prepayments will be applied to installments on the last maturing principal, and interest on that
    prepaid principal will immediately cease to accrue.


0           Interest on the debt evidenced by this note will not exceed the maximum rate or amount of
    nonusurious interest that may be contracted for, taken. reserved. charged, or received under law. Any
    interest in excess of that maximum amount will be credited on the Principal Amount or, if the Principal
    Amount has been paid. refunded. On any acceleration or required or permitted prepayment, any excess
    interest will be canceled automatically as of the acceleration or prepayment or. if the excess interest has
    already been paid. credited on the Principal Amount or, if the Principal Amount has been paid.
    refunded. This provision overrides any conflicting provisions in this note and all other instruments
    concerning the debt.

            Each Borrower is responsible for all obligations represented by this note.

            When the context requires. singular nouns and pronouns include the plural.

            If any provision of this note conflic:L'i with any provision of a loan agreement, deed of trust, or
    security agreement of the same transaction between Lender and Borrower, the provisions of the deed of
    trust will govern to the extent of the conflict.



     181323-2 0210412004                                                                                     2




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    RR VOL 3 OF 4 AT 14-86
    Page 70 of 86
0          This note will be construed under the laws of the state of Texas, without regard to choice-of-
    law rules of any jurisdiction.




                                                                                   c
                                                        A:.'\fANDA WADE




0




      181323·2 0210412004
                                                                                                            3




0
     TAB J
     RR VOL 3 OF 4 AT 14-86
     Page 71 of 86
0                   :: -·..
                                                                                                                     EXHIBIT A


                                                                  . KNOW ALL MEN B'T THESE PRESENTS:
                                     COUNTY ~F LAMPASAS I
                                        That we, · Manae1 Delbert Sy1vester and Chester Horace Sylvester, in-
                                     dividually and as independent executors of the willa and estate3 o~
                                     A. H. Sylvester and wife Emma Sylvester, both deceased, Mi~lie S~lvester
                                     wife of Manuel Dalbert Sylvester, Melba S~lvester, ~1te ot Chester
                                     Horace        s1:-.r, Lenora S-ylvest .. r nutl.Ar, and·hUShAnd Austin M. Bl1t1er
                                                   star Stewar.t and husband Ivan 111. Stewart, o.     ell

                                  ;,t\:~el,b                                                                             or and· in· .conaide.rat:lcn
                                  -~r o1''"~the                                                                        1ars · to· us in han!i · .    ·
                                 · · Pfl.td · and ' secured ' to                  , paid                        ·~ada: and "wi~e· Edel} Sy1veater
                                      -Wade' aa follows: · '                     ·· ·-- ·· ••·                   ·•. . , '
                                             'l'wel.ve ·'l'housand ($12,000.00) Do1lars·•-cash in hand paid, the receipt
                                       of ' wh:lch is herebT acknowledged and for which no lien expreaaed or
                                       im~~~~etained or shall exist and one promissory Vendor's Lien
                                       no~~~~~ 'date herewith given by the sa:ld Charles Otto Wade and
                                       wire Edell. ' Sylvester Wade, payab1e at the express reqtlast a:nd ':,direction
                                     . o~ _al.l the parties he~eto to Manuel· Delbert Sylvester -or order, due-
                                       en or before February l, 1952, with interest ~hereon ~rem maturity
                                       nntil. paid at the rate of ' six (6") per cent per annum, said nate
                                       being payab1e at Lampasas ·, Texas, and providing fer 'the usua1 Vendor• s
                                       Lien and ten per cent attorney's fee cl.auses, and the Vendor's Lien
                                       and superior title retained · in this deed to secure,the payment or sa:ld
                                       note are hereby trans£erred 'and siRned ·to the said Manuel Delbert
                                      ·sy1ves~er, hls heirs and assigns, and the undersigned ~ranters hereby
                                       acknowledge that the rull and entire consideration fer this ccnve~ance
                                       has been                     to them and that the•r do not have, hold or claim sny
                                                                         and._pnam1.aaa-c.OA~~·d-Jo.e.-b;;: ~z.a•p·'l;,.eao~n~.,t.a....LJ.ea.
                                                                  title ~ · favor · or said Manuel-o&lbert-s~lvester, his heirs
                                       and aasiRns as aforesaid; have Granted, Sold and Conveyed, and by
                                       these presents do Grant, Sell. and Convey untcuthe said Charles Ottc
                                       Wade and wife Edell Sylvester Wade or Durnet County, Texas, a1l that
                                        certain real estate sitQatad in Burnet .county; Texas, and described as
                                       fo1lows:                                                         ·
                                                  First Tract: West One Quarter or Sec. 60, being one hundred
                                                  sixty five and 28/100 acres in nurnet County, ToxBs 0 ou~ of the
                                                  Texas Central ftR1lroad Company Survey, bep,inning at the N. w.
0                                                  cor. or the A. M. Derry Survey, a set stone from which a L 0
                                                   bra !T 9~· E 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
                              .l<i!!li!"-~r;:,'f~i.ij;tl~~..i;_.s!~'!q,e~p~ "' the~ aa-id-<\Bl.a:lr'.Sur.:·S--711-W 1390 vrs the N E cor ·
                                                                 R. ·p. 'Ki:szier-Sur., St • .a·Md.-. iii 6 19*E itr 951 Vrs-&~•
                                                   forlced Elm the SE cor of the said Kis:aier Sur., at 1120 vrs.
                                                   an inner car at the T. C. R. R. Co. No. S9, for the S. W. Cor
                                                   of t;hia Sur. ·Thence lT 71 E 1145 vrs. a st md the Southermost
                                                   SE cor. or t.his Survey on the W line of t;he said J3err-:,• Sur. Th.
                                                   N 19 W b60 vrs. to the place of besinning, as Surveyed out by
                                                   Dan W. Tay1or, Jr.
                                                   Second Tract; l.60 acres of the A. M. Barr~ q~y, ~urnet
                                                   County. Texas, as taken !rom tho Patent whibh ~s re~orded in
                                                   Vel.· A, pace 2$9, Patent Records o:r Burnet cnunty, Texas this
                                                   patent is Jfo. 593, Vol. 29, ~E>o 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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                                                                                    .,
                                                                                   .. ~; ~-=.... . . ~ .\ .     ··""· .   -~   .
                                                            ···.....   ~: ·.   :   ..,'" . ~ ': :    ..-:; ·.

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<h1.r.~'l J. •. es on t.ha East s1do o!' tho LIXntpasas and Austin
                     ,; ··                                             road • w~th'•Meilqul<lle Cr as the N boundary 1ine, the Chas 'W1~son ·
                                       .           . _ ,:. How crnne~. by Joe~A1exander as the East boundary ond the R. a.
                                    ~~'-'·•~~ztrl9"}..e,n~j;~,:.:l;lle <South, .':' IO'a~!i~;L~paaaa ·. and -Aua.t1n· road the
                         . .          ·        ·               - We'ali""t'oundary. 1 con.toain1ns .16,...acr&a,-JIIO:ra _.. .l:aes.--                        __,_ _ _..,.._.........,.
                                                   being the 1danttc~ land conveyed by Wil11am Ellis Derry et al to
                                                   A. H. Sylvester by deed dated ltovem':ler 6 1 l.938 ll~icorded in Vo~. 07
                                                   pages 37b-81 nf the Deed necords of 3urnet County, Texas, to which
                                                   1natru,ents and the record thereof reference 1a here made ror ol1
                                                   pur}lO&as.
                                                                The Brsntors'V.anuel Delbert Sylveater, Lenora S~lvestar ~utler.
                                                    Core1n Sylvester St.ewart, Chester Ho~ace Syl.veatar, and o. Zel1
                                                   Sy1vester Ph111ips "nd the grantee Ede1l. Sy1vest.er Tlade are col.~ec­
                                                   t1ve1y1 a11 or the ch11dren o~ A. H. Syl.vast.er ant1 w11'e Emma
                                                   Syl.vaster. both deceased. and al.l are the devisees and 1egateas 1n
                                                   the respective w111a or l\,' ' H. · Sy1veater and Emnaa Sy1veater. both
                                                   deceased. and thi~ conve~ance is made !or the purpose or e~fectuating
                                                   a partit1on and dtlvi.aion of the estates of the aaid A. H. Sy1vester
                      ·~ ·
                       :;.,.
                      ·:;/,·~




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                                                                    ..   ..;   ;;




0
                                           :\Ttd Emma Syl.veater, decoased, the undersigned ~rantora her t.' 'by convey-
                                           ' ·'l'lg unto the crantees herein and und1.vided f'iva-oixths C5/6) int.,re:~t
                                           in·the above described l.and, the grantee Edel.l. Syl.vester Wade owning
                     r '                   the· other und•vided· one-sixth (l/b) 1.ntaroat t~erein as one of the
                                         · devi:seea of the A. H. and Enma Sylvester, deceased.
                                                   TO l-11\'lr. .'\.lTD TO UOL!> 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 <lny persnnrl1.l.~· U!>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<nowl.ed~ed to me that they BACh O>:!!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 Ch<!!ster
                                         Hor co Sy~veater, And l.lelht1 Sylvot~t;cr 0 hi:s wife, ':loth 1tnown to me ·
                                          to l)n the T'erson!J·Yihosot ""'"'~~'S nre ~;~uhac'l'ihed to tho .f 'ore,;oinll; in-
                                          :st.rUI'u'lnt, anO ac!tnnwledl~ed to me that they . each executed the same
                         £.•..,_ a .:    'dla     talae . p••t• • . -. 8!£ lllfd'-e; I:IIJ.Vi.1hr.l:aM-cta~~ tb.eneJ,.G-:ax~.....,.q .,.. "an~~, ,~P,e.-' ~ a.i.d . ;
                         ..               Melba"' S7lveater, wi.f'e or the eaid Cheater ' Horace S71vester, 'havtnc
                                        ··beel;i-' exans1.ned by me pri v 1ly and apart 1'rom her husband, a nd having
                                          the same 1'ully explained to her, she, the anid Melba Sylvester
                                          aclcnowledced 'such ' instrument to be her act and deed, and she de-
                                          clared that she had w1111n~ly :~lg~ed the same for the purpo:~ea and
                                          consideration therein expressed, Bnd that she did not wish to re-
                                          tract i t .

                                         A.    g:~~~~ER              MY    HI\N~V~:.::..L OF OFFXC~E,
                                                                                                 This 26th                                    d : ; Jana&r)',' •


                                                                                                Notary     ~~~co!~Texas
                                         THE STATE OF TEXAS                 I
                                         COU!n'Y O'Jo'      ;t/i.ifle.,._!
                                         ,o "Jefore : . the
                                        ,..~, a"r.""·"' "~·,
                                                                           unrlerr;i~·ned
                                                                                   e.uth•.>rit!•, 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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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<n0VIn .tone to
                                  be the pornonnhooc. nane :So subscri.ber'l to t.lle .forer.oino:: -ln,.trumcnt, and
                              t   acJ:now1edr:ed to mo th11t he exec·.tted the santa for t!'\e purpo,.es and con- '
                                  si.deration expresaed thc,..r.in, :tnd :in the cupacit-,1 theroin s';atod.
                              l
                                                   rHVEIJ U:tiDER      ur       ltAliD AlTD S2/\L OF OFF-l CE,        Thi.s ...2.RJ;.b.. da:r of    · aanu~·,
                                     A.D. 1<Sa.

                                                                           oi.V.HAA&aun                                                            e.:tas




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                                                               a
0                                                 MARTIN           MILLICAN
                                                         ATTORNEYS AT LAW
                                                      1512 EAsT FOURTH EITNEET
                                                  LAMPASAS, TEXAS 785!50•


    MICHAEL M . MAIITIN                                                                           TEL !S 1 2·!5!58·8228
    PATMILUCAN                                                                                    FAX 15 t 2·15158·882 t


                          ~-It/. I I
                                                                                                  E·MArL lc•cGn·llnk.com
           DATE:                               . 20
                   I,     E:..t//lA./ 7/v .CJl!J ;5           , hereby certify that I have on the date named

          above received from File#

                   -4       c-&p---~-?F         + p:t__e_____
                                             I C; 14-' 3        the following items:




          being from the law finn of MARTIN & MILLICAN, Attorneys at Law, 512 East Fourth Street,

          Lampasas, Texas 76550.
0




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                                                                              288985193
                                                                 8 PIOS



                                       MODIFICATION AGREEMENT


0     Date: May 1, 2009
      Holder of Note and Lien:      EDELL WADE
      Holdar"s Mailing Address:
                      REDACTED
                     REDACTEDREDACTED
                    Burnet County
      Obligor:      JOHNNY WADE and AMANDA WADE, husband and wife
      Obligor's Mailing Address:
                    REDACTED
                         REDACTED
                    REDACTED
                     REDACTEDREDACTED
                    Lampasas County
      Note

             Date: February 6 , 2004
             Original principal amount: $500,000.00
                            JOHNNY WADE and AIIIIANDA WADE, husband and wife
                            EDELL WADE
             Maturity date: February 1, 2036
     Unpaid Principal and Interest on Nom: $227,528 oo
     Lien Documenta: Deed of Truat dated February 8, 2004 from JOHNNY WADE and AIIIIANDA
     WADE to PAT E. CAVNESS, Truatee, recorded aa Document 002424. Volume 1223, page 503,
     Official Public Records of Burnet County, T -
     Property (Including any Improvements»:

             That certain real property in Burnet County, Texas, more particularly described in Exhibit
             "A• attached hereto and made a part hereof for all purposes.
     Extended Maturity Date of Nota: March 1, 2025
     Modined Terms: The interest rate on this Modification and Extension shall be zero (0%) 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 June 1, 2009 and continuing


0
     regularly on the first date of each succeeding month unUI paid.
           *THE PARTIES STATE HEREBY THAT THIS MODIFICATION IS FOR THE SOLE
     PURPOSE OF ELIMINATING THE OBLIGATION OFOBLIGORTO PAYTO HOLDER INTEREST
     ON THIS LOAN.•
            The Note Is secured by liens against the Property. Whether Obligor is primarily liable on
     the Note or not. Obtigor nevertheleu agrees to pay t."e Note end comply with the obligations
     expressact '" the Lien Documents.
            For value received. Obligor renews the Note and promises to pay to the order of Holder of
     Note and Lien, according to the Modiftact Terms, the Unpaid Principal and Interest on Nota. All
     unpaid amounts are due by the Extended Maturity Date of Noll,. Obligor also extends the liens
     described in the Lien Documents.
           The Note and the Lien Documents continue as written, except as provided in lhis
     agreement.
             Obligor warrants to Holder of Note and Uen that the Note and the Lien Documents, as
     modified, are valid and enforceable and represents that they are not subject to rights of offset,
     rescission, or other claims .




                                                    -1-




0
                                                                                                          REDACTED
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              When the context requires, singular nouns and pronouns Include the plural.


0                                                                       E   ELL   AOE




                                                                        ~
     STATE OF TEXAS                                      §




                    . , .. "~~~<:-.        CIIANI! ~. VAFINI!FI
                   f.'*'i~\                                             NotarYbilc:Sf&te of Tex~ts
                   ' , ,          ~·J
                                               No,., PubliC
                                            STATE OF TEXAS                                        -     r
                                                                        My commiuion expires: r~ oR ' ·- :1./
                    · ..· ;-_.:         My Con1 ... E11p. Del 20, HIJ




0    STATE OF TEXAS                                      §




     PREPARED IN THE OFFICE
     MARTIN & MILLICAN
     G12 EAST FOUR'THST.
     LAMPASNI,TX7IIMO
     m':\\~f,~
     AnER RI!CORDING RETURN TO:
     MARTIN & MILLICAN
     512 II!AST FOURTH ST.
     LAMPASNI, TX711550
     TEL: (512)   ~Z211
     FAX (512) 558-11621




                                                                            -2-




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0·




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0 ..
            •.:,
            ·.~   .
            .!
            .:.:.
                              Oacupante at .Pub11c landa, approved May 2bth, 1873· Bealnnlnc
            ~/             . a~ at md, $8;;! ·vra. II 19 W.1'rom •.~Point: . ]bO .... ., Jf 71 lil 1'rom the -
                        : .•. N \V cor ••of.. ~he Du~ JlcCP7 · D\'rJ \'h,'R 1.9. W 9$0 vra a at md
                        . ..whence a,,L 9 ';!JOB ~·Jt.2n 'f'l 250.vre .a Hetlqu\t.e _.bra SitE 162 vre•
                         .;Thence B . 71 ~ 200 vra ·a branch 9SO vra a             t.nd whence a L. o.
                                   II 9i· 1::. :e16i. vr.a d.o .bra N B-3/4- B      vra. Til S 19 C:
                                   vre a braneh 9$0 vr~ o · at md. Th               E · 47S vra a branch
                                         to t.he p1aae or 'bec;1nn1.ns, be            mo.rlced ll·
                                               :  Out or the 7hoa. W.




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    ·.                                                      .·
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0
                         GIVI".I' '"TP£11 l.i'C 111\IID IUID SSAL OJ> OJ•Fir.E, Th1a .26.t.l>_dGy at: January . •,
                      A. D.   ~953.




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                             (

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·.




                              : .'\..,ES




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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, 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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                         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
 1   ******

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              130
 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

 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 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)

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


                                                                            2

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-




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                              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-




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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


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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~. ·
                                      wbenaD a J...       o.
                                            '1'h 8 19 E
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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·                        ·




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                              (

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    Page 44 of 86
                                .. ·.. /1
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Page 45 of 86
0




0
                               FILED AND RECORDED

                              e~P:=,_,OI
                                .JWW~ • · ~         te:e1 : 4a Aft
                                          FEll: . . . . . .
                                J'•n.t p_..• .,.. County Cl.rk
                                    lk.arnet Count.y,    Te•ae




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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
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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:>'CSITJOOI<I OP ............ OA WMll!:,        O'zoduced aa   a
      witner;a ilt tbd in.atilnce <>f the P<otit!on .. r-, ;o.nd duly                                                    INTENT TO TAKE ORAL DEPOSITION
      aworn, "''"" t-'<•m in th• abo..,..,.,.tyl.,d "'nd ou...,.,r"'d
      ,,.,.., •., = the 4t!l of Allgu,.t, ;;,o1L, er001 ~,oo il.m. to                                        2            WARRANTY DEED WITH VENDOR'S 24
      10,•9 a.m., b.,tore JUIDNDJI. lWW:utD, CSR in and for U.•                                                          LIEN
      st .. te of 'l'exa.,, report ..d. by maahin• "'hort~nd, .,.,
      th., o.-,cfi"""H of StW>'bs Law DHice, 202 N. Porter
      Stre"'=• L'"'lP""•"'• ,.,.,...,, F"r"""'"'t to th<o Tex;o.a Ru1ea
                                                                                                  ","        3
                                                                                                             4
                                                                                                                          PROMISSORY NOTE
                                                                                                                          DEED OF TRUST       24
                                                                                                                                                 24
      of Civil Procedu"e and th• prov!.&iomo "tilt•d on the                                                  5            STATUTORY DURABLE pOWER OF 41
                                          h."'""'""·
                                                                                                   ,"
            0~        0    at.U.."h,.cl




                                                                                                  ,"         7           AMORTIZATION SCHEDULE               66
                                                                                                             8            RESPONDENT'S RESPONSES TO  70
                                                                                                                         PETITIONER'S SECOND REQUEST
                                                                                                   "                     FOR PRODUCTION OF DOCUMENTS

                                                                                                   ""
                                                                                                    "
                                                 2
                                                                                                  "                                  4

 l                              APPEARANCES                                                             1                 (9:08a.m.)
 2                                                                                                                        AMANDA WADE,
 3    FOR THE PETITIONER:                                                                               '
                                                                                                        3        having been duly swom, testified as follows:
 4    Mr. Don E. Walden                                                                                 4               THE REPORTER: Thank you. We're on
      ATTORNEY AND COUNSELOR AT LAW
                                                                                                        5    the record, 9:08.
 5    720~ North Mo~:~~~uite 300                                                                        6                 EXAMINATION
 6    (512) 349-9595                                                                                    7    BY MR. WALDEN:

 8    FOR THE RESPONDENT:                                                                           9             A   Amanda Wade.
 9    Mr. Evan Stubbs                                                                              10             Q   And, Ms. Wade, I'm Don Walden_ And do you
      STUBBS LAW OFFICE, P.LL.C.                                                                             understand that I represent Nancy Bums today?
10    202 N. Porter Street
      Lampasas, Texas 76550
                                                                                                   "
                                                                                                   >2             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    n<ov Now Ms. Csv .. M<. Ca~ass had
                                                                       helped Edell Wade for quite a number of years.




ESQQ!.B];,        •                                                                               Toll Fr-ee: 800.880.2546
                                                                                                  Facsimile: 512.328.8139

                                                                                                               Suite 220
                                                                                                  3101 Bee Caves Road
                                                                                                       Austin, TX 78746
                                                                                               www. esauiresolutions.com




                                                                                                                              407
      Amanda Wade                                                                                                       August 4,            20ll


                                                                                                                                                 95

 1                                                           CAUSE       NO              p    9127

 2          IN    THE         ESTATE             OF                          'IN             THE   COUNTY              COURT       AT       LAW


 3          ~u~uu       w~u~                                                 *OF

                                                                             *
 4          DECEASED                                                         *BURNET                COUNTY,             TEXAS
 5
                                                 REPORTER'S                  CERTIFICATION
 ~                                              nRPO~TTT()N              OR          AMANDA             WAnR

                                                             AUGUST          4'          2011

 7
 8                                     I'       Rhonda            Howard,                Certified                Shorthand

 9          Reporter               in          and    for         the    State                of    Texas,             hereby
10          certify               to       the       following,
11                                     That          the      witness,                   AMANDA          WADE,          was       dul.y

12          sworn       by         the          deposition               officer                   and       that       the

13          transcript                     of     the        oral       deposition                      is    a    true       record
14          of    the         testimony                  given          by       the          witness;


                 <;( ·- ":) c
~0



17          OFFICE,               P.L . L. C.,               202    N        Porter                Street              Lampasas

18          Texas             76550             {512)         556-8970,                      for    the       witness ' s

19          examination,                        signature               and          return             to    me       by

20           q-QD             -\       \
                                            '
                                                  (2 0       days)       per             agreement                of    counsel         ;

21                                         That       the         time       used             by    attorneys                is    as
22          follows
                              '
23                                     Mr         Don        Walden          -       1       3 9
                                                                                         '
                                       Mr         Evan        Stubbs             -       ' 02
24                                     That          pursuant            to          information                   given          to    the

.<5         u.epos~     ...   ~on          0   _...._J.cer    a     0    e           >me           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<r----e-o         ~    e        oepos~t:~on           o~::I:~cer       on

4          -----~~-~~---------
 5                 If     returned,                 the    attached               Changes          and     Signature

 6         page    contains              any        changes            and       the    reasons          therefor;

 7                 If     returned                 the    original               deposition             was

 8         ae_1_~verea          0         r-        va

 9                 That        $~_«:i___?-_-~.!_     __     is        the    deposition             officer's

~0         charge        to    the        PETITIONER                  for    preparing             the     original

~~         deposition            transcript                 and        any       copies       of    exhibits;

~2
                   That        the        deposition                  was    delivered             in     accordance

~3         Wlth    Ru.Le       ~UJ      . ..:.,    anu.   .... naL.

~4         was     served        on       all       parties            shown           herein      and      filed

15         with     the       Clerk.

~6                  certified                to     by    me     this        .., +-"day
                                                                             ..G(..l

~7         2011

~8
                                                                        A        III               1     II n b110..
~9                                                   t"=""
20                                                    Rhonda           Howard,           Texas

                                                      Expiration                 Date:        12/31/12

                                                      FIRM       REGISTRATION                 NO.       283
2~



                                                      3101        Bee       Caves        Road,         Su1te     :<!:<!'
22
                                                      Austin,           Texas            78746

                                                         (512}        328-5557
23
24         Job     No.    259054RH

25

                                                                                                       Toll Free: 800.880.2546
                                                                                                       Facsimile: 512.328.8139

                                                                                                                       Suite 220
                                                                                                          3101 Bee Caves Road
                                                                                                              Austin, TX 78746
                                                                                                   www.esquiresolutions.com




                                                                                                                                   427
                     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
                          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
       ,~·   .




 ~kdfJJ.. k
REDACTED


REDACTED




                 REDACTED
                            347
                      ''

P. 0. Box409
Lampasas, TX 76550
(512) 556-3639
FAX: 556-0423




To;        JOHNNY & AMANDA WADE           Frorm    CAVNESS LAW OFFICE
REDACTED
REDACTED   REDACTED                       Pages:    19 INCLUDING TRANSMITTAL)

REDACTEDREDACTED                          -·       1/16/2004
...,,      CLOSING PAPERS                 CC;


0 Uruent      x J=or Review   0 Please Comment     D Please Reply    0 Please Recycle




• Comments;

ATTACHED PLEASE FIND FOR YOUR REVIEW/SIGNATURES/AND                  RETURN    OF   THE
DOCUMENTS AS 00 I LINED IN l HE A ilACHED LEI I ER.


                                                        THANKS,


                                                   ~
                                                   <_../~
                                                                           cS5~




                                                                       .




                                                                    REDACTED              348
                                        CAVNESS LAW OFFICE
                                              414 South Liveoak
                                                 P.O. Box 409
                                           Lam.pasas. Texas 76550
                                               (512) 556·3639
Pat E. Cavness                                                                              FAX (512) 556·5608

                                               January 16, 2004

     Johnny and Amanda Wade
       REDACTEDREDACTEDREDACTED
         REDACTED

                             Re: PurChase trom EDELL VVADE::


     Dear Johnny and Amanda:
             Enclosed with this letter are the following documents for your review and signature:


                   0   ry u c.
             2.   Promissory Note to be signed in the designated places.
             3.   Deed of Trust to be signed in the designated places before a Notary Public.
             4.   Closing Agreement for you to duplicate and sign both originals In the designated places.
             5.   Non-representation Jettar for you to sign In the designated places.
             64   Settlement Statement for you to sign in the designated places~

            If the enclosed documents are satisfactory, please sign as lndacated and return them witli
     your Check 1n tile amount of $536.00. I will U1en get Mrs. \'Vaele te sign; Fesard the a~propriate
     documents; and forward to you your recorded deed and a copy of the Settlemen1 Statement.

             Please let me know If you have any questlons.

             Thank you.




     6 Enclosures
     PEC/Iaf


     Documents Sent by FAX to:       REDACTED




                                                                                REDACTED                 349
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY
REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS
INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR
SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.

                                  Warranty Deed with Vendor's Lien

Date:   January~ 2004

Grantor:        EDELL WADE, a widow

Grantor's Mailing Address:


                     REDACTED

Grantee:        JOHNNY WADE and AMANDA WADE, husband and wife

Grantee's Mailing Address:

                 JOHNNY WADE and AMAI\IDA VVAOE
                 4 REDACTED      REDACTED
                     REDACTED
                   REDACTEDREDACTEDREDACTED               Coun~




Consideration:
        Cash and a note of even date executed by Grantee and payable to the order of Grantor 1n the
principal amount of FIVE HONORED FIFT"'r THOUSAND Af4D flii0/1 00 DOLLARS ($500.000.00). The
note Is secured by a first and superior vendors lien and superior title retained In this deed and by a
first-lien deed of trust of even date from Grantee to Pat E. Cavness, Trustee.

Property (Including any lmprovemenbs):
        Being 475 28 acres out of the West One Quarter of Section 60, out of the Texas Central
Railroad Company Survey. A.M. Berry Survey~ Abstract No. 1645, and the A.M. Berry Survey, Abstract
No. 1678, In Burnet County, I exas, a11d bei119 tl ae sallie piopel"t) oonye)lecl in eleeel elateS JaAuary2e,
1952. from Manuel Delbert Sylvester et al to Charles Otto Wade and wife, Edell Sylvester Wade,
recorded In Volume 108, Page 421~425, Deed Records of Burnet County. Texas, to which Instrument
and the record thereof reference Is here made for a more particular description of such property and
for all qther purposes.

Reservations from Conveyance:




                                                     1

                                                         ·"




                                                                          REDACTED                              350
Exceptions to Conveyance and Warranty:

        Liens described as part of the Consideration and any other liens described in thfs deed as
being either assumed or subject to which title is taken; validly existing easements, rights-of-way, and
p1esc1 iptive 1igl"lts, ~QI9etAer of reesrd er not; all presently recorded and validly existing instruments,
other than cymyeyaoces of the surface fee estate. that affect the Property; and taxes for 2004, which
Grantee assumes and agrees to pay, and subsequent assessments for that and pnor years due to
change in land usage, ownership, or both. the payment of which Grantee assumes.

         Grantor, for the Consideration and subject to the Reservations rrom Conveyance and the
Exceptions to Conveyance and Warranty, grants, sells, and conveys to Grantee the Property, together
with all and singular the rights and appurtenances thereto in any way belonging, to have and to hold it
to (;lratltee a11d Brat1tee's fleirs. sueeessers, and assigns forever Grantor hjnds Grantor and
Grantor•s- heirs and s•1ccessors to warrant and forever defend all and singular the Property to Grantee
and Grantee's heirs, successors, and assigns against every person whomsoever laWfully clarmmg or
to claim the same or· any part thereof, except as to the Resetvatlons from Conveyance and the
Exceptions to Conveyance and Warranty.

       The vendor's lien against and superior title to the Property are retafned until each note
described is fully pajd according to Its terms, at which time this deed will become absolute.

        When the context reQuires. singular nouns and pronouns include the pluraL




ACCEPTED:




JOHNNY WADE




AMANDA WADE




                                                     2




                                                                                                               351
                           r'
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                                                                        -

                                                                            ''




STATE OF TEXAS                         §

CQIJ!'IT'I' OF LAMPASAS                §

         This instrument was acknowledged before me on                           , 2004, by EDELL
WADE.




STATE OF TEXAS                         §

COUNTY OF LAMPASAS                      §

      =Ffiis iAStfl.lmeAt was eu;;:kJ:lcwledged befor:e roe oo                           2004, b)'
.IOHNNY WADE.



                                                 Notary Public, State of Texas


                                        ~




COUNTY OF LAMPASAS                     §

     This rnstrument was acknowledged before me on                                     • 2004, by
AMANDA WADE.



                                                 "u'"" y -u      '"·

PREPARED IN THE OFFICE OF:

Cavness Law Offrce
t' .V. DU><.   tU~

414 S. Live Oak
Lampasas, TX 76550
                                                    3




                                                                                                 352
                                                                          ,~-



                             (_   ~
                                   '                                     I
                                                                         \,
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                                                                                     \




                                            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

                                                       2




                                                                                                               354
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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
                                              .



                                                       3




                                                                                                               355
                                                                   c.:
                                                                    _/



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




                                                                   REDACTED   356
                             /   ,,                                      ,- -· )
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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;

                                                     2




                                                                                                           357
                                                                        (       \
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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
                                                 3




                                                                                                              358
                                  /                                         (
                                                                                 -
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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
                                                           ,./··   -~


                                                           \...__.)




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
                                   REDACTED
                                                II!<UUIC   .T•Ifl    P. CDI/011   F•IU




                        REDACTED
Bl/11/?PlP'Id   17tl1
                        REDACTED




                         REDACTED


                                                                                             .........
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of t.rlr.l»l "tLW'lO ,vyern to \11'1-. •Mteftt O'f''tl"le . . , . , . .                                            •
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   lrteTRUMENT lii:P' ...... IT 18 "I~ FDf'l f'lBOOI'\D IN Ttla P'U eL~q 1'1800ft£te; 'fOUR
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              I"'r ..tu• - - a n o l to·-~~ ,_.,..martha Ollli.Mio.,, Cranlcl,.
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         2.       l'lacl- lr> anlf IJ'U_. di!IICI              """"•lfi"'G Ill•   P..,_,e~ Will be pr-IJmBCI   to ba crua.
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                                                           NotwltbsuoruUng anything 10 !he conltlll')'   ~<>nUoined nereln or In tl•o Note, pdo• to
                                              8.
                                              e><ercl-•lng any rif!btl or rerbed\CS hel:euJ>dar or 1111det tbc Note (lnc\\•dlng ecoel-iOft _af
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                                                                                                                              .,Pporturut)' to cure
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                                              to a.ny daf'"ault other Ulan. a ftiila£e to n!ISI:nr a·payltient lJn.det thC :N9.te,§t~30 day tb:tJ.c:
                                -              period .nu be ext:ctUlcd $o- l~ne; as Chaotor .commtin.ced to 0\.'lt'e !l.ueb.. tiutt aUI'Uig tht:
                      -                        jrtltlal ;o day p.,Pod ~d
                                                                       j   tbereafto< dlllsenUy
                                                                                              -     p.O•eeutes ouch •cure' to comp\¢tiOn-          ·
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        TH&: IITATir. 01' T10X_AS                                                                   II



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                                                                                                         ...., ·~ k:lng-aa aha.,..,._
                             ~                                                      -•~ ~                                                                              -~...at•on
                                                                                                                                                                                  ' -I'·
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                                  /        !Itt                       ._m.- "~''..                                                                   •~ .... ~- ......
                                                                                                                                                                                                        .........
                                          v                      i...¥ o.J -~- ~..,-.."t-, II ........,..
                                                                                              .c ,,J...       "'- <YL. ~ "rA-. kJ,'t;v
                                                                                                          a.,~l- .......i '?rc r     '
                                                                                      Q"("-"- i                 ISE~ W""llli




                   ~
                                                                                                               JOHNNY WXbi!



               ~~1~.
               "-·
                      ~
                                                                             "
                                                                                                               AN~Af'lg:JE WALla_

                                                                                                                                                                  .
                                   v~                ,rF'v
                                           \\.. V>J • " '


                 C)..J'                            • "'
                      ~~-
                                 .....
                                                                                                                                                                                                     ,.-·-"'




                                                                                                                                                    REDACTED                                   380
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
...                                                                                                                ,<   -
                                                                                                                                'J
                                                  ·,                                                               \.       /

         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




                                                  •-
                                                  •
                                              -- ----··
                                              .
                                                  ---·
                                                       .
                                                            ~,


                                                               ...;
                                                           ,_.__ ....
                                                                        ~;
                                                                             ' .
                                                                             (
                                                                                 I.. D
                                                                                   '
                                                                                       (
                                                                                           !




      Thank you for y()ur busines,.
                                                                                                                                                               $500.00


                                                                                                              Payments/Credits                                  $0.00

                                                                                                              Balance Due                                     S500.00




                                                                                                                                     REDACTED                     382
                                                                            /
                                                                        (       \
                                                                        "~-j
 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
                        (),      ,/'>

                       7        71                                   /1   /J   /1   _,_,




                                                                                           .   ~         .




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   \),_;j_,__-<. v 'b                   {_A__;i)JL_'--
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                                  REDACTEDREDACTED
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      REDACTED       REDACTED
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         REDACTED
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                                                          -
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                                                                                    REDACTED       384
      <.OVA              0.            . Ins.                                I                                    I                                        I
                 '!;;" ·~~Is '                  ~.:::..'1:;~~".;:.,~1-;;:.                                                      '··~ ~::.,·:( '?...
                                                                                  )n~rof ~tual settlement cos~,                                                    i ,.;-~:-,:;:;,• :.•• shown.
      C. Nota'
                                                                                                                                                                                1                 lema ma<kod

      D.                        '00                                              I"; -~~~- & .Add<ess of Selle"                                  •• ;:::,""' &           'Of
      J_ohnny    ~   eoe
      Annnda Wade                                                                  REDACTED                                                          REDACTED
          REDACTEDREDACTED                                                           REDACTED                                                          REDACTED
        REDACTED

      G. P<opedy
                     1
                         out··'·         ...                                                          ~illl.Ca
                                                                                                                                                                               Tax o

                                                                                                      A>,C<           •O.kSb
                                                                                                                      _. ..., . . too:>O                                                ..,_,
      100. G!OSs Am ounl Duo F<om                                                                             400. G<oss                             To Selle<
      101. Conb'aet sa'"" p<lce                                                                              1401.                     ' pnee
       02.                                                                                                   [402. "''sonal p<ope<ty
                                                       •!t>le1400)                                  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><eess


                                                                                                             i.
                     I

                                                                                                                                   fl~~
                                                                                                                                                                                                          _0.00
                                                                                                                      P.>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. G<osa Amount due f<om
!    302. "'""amount& paid by!fo< I                           (line 220)                                     [602. Less                    ' In amL due . .1,., ·                                 ~
I    303.Cun             cgJFrom                0   To Borrower                                    536.00    603. Cash             OTo                 0       Fmm Seller                                 0.00
     You are reQuited by laW to provli;l'e the S~S\IT AGe« with your correct taxpayer ldantitk:a.tian. number. II" you do not provide the SETTLS'IS\IT AGENT
     wl!h your correct taxpayer ldvntlrlcation number. you may be subject to ciVH or orimW"!al peni!lties Imposed by faw,              ·

                                                                                                   CER1fl::ATION
                              Under penallY of perpOJr:t', I CiBI diy Uaat lite JIOiilbe• sliD•••• 01 • lt:is slak::FI eAt is ll1Y ser:naGt ta.x;pgyer Jden!fficeuo.. m&mber




                                                                                                                                                                 REDACTED                           385
                                                                                                                                               I
    '""·                                     'With Lr
    801.loan               'Fee




    807.              1 Feo
    BOB.
    809.

    81



                                                 to
                               ' A'emlum for                 months to
         . Hazard             >A'.-mfor                      y .... to
                                                             years to


                                                             months <Ill '
                                                             months
                                                             months

    1005.                                                    months
    1005.
    1007.
    1006.~~


                    t or true search
   1103.ntle<
   1104. T""l
   1105.
   1106. Notary fees
   1107.             ' ••••                                                                                                           350.00

                                                      to l'at E. Cavness
                                                      $
                                                      $




------~~·~~
                              to
                              to




   1400. Total SetUernent C::h!lrges (111'      ron lines 103, Section J 1u1d 502, Section Jq                                        536.00                    0.00
   1nave carefully reVIeWed ttle I-JL0.1 Settlement Statement and to the best of my krlowledge and belief it is a true and accurate statement of aU receipts
   and disbursements made on my account or by m& In this tran.sact!Qn. I furHler certify that I have received a copy of the HUD-1 Seltlement Statemoot.
   WARNNG: It~ a crime to knowingly m<tke false statements lo the United States. on tftls or any other almllar torm. R!nalties upon convletlon ean inckJtie
   a rlne and imprisonment. For details see: Tltlo 18 U.S. Code sec"Uon 1001 Bnd Section 1010.

   BORRO\NFRS•                                                                     SELLERS:
                    JOHNNY WADE                                                                 EDELL. WADE

                    AMANDA WADE




                                                                                                                                                      386
387
                     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
                        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   back door what he can't get in the front door.

 2                  THE COURT:    The situation is that you all

 3   are allowed to go into the issues regarding the initial

 4   sell and purchase of the property.    As far as whether or

 5   not that was a fair sale or not a fair sale is barred by

 6   limitations.   So we can't go into the specific fats of

 7   the sale other than to allow the plaintiff to show part

 8   of a plan or scheme to defraud her from the beginning.

 9                  MR. RICHIE:    That's where I'm heading.

10                  THE COURT:    So with that in mind I'm

11   going to go ahead and allow some questions in that

12   regard to show the fairness of the transaction, but as

13   far as what money the plaintiffs got out of the sale of

14   their California property I don't find that that is

15   going to be relevant unless you can tie it into a plan

16   or scheme to defraud Mrs. Edell Wade.

17                  MR. RICHIE:    And, Judge, fraud is

18   something that is always proved by circumstantial

19   evidence.   People don't come in and admit I defrauded

20   somebody.   What we're trying to show here is that they

21   sold their California property.    They took the cash.

22   They came here and they did not make a down payment and

23   then they used that cash to go out and buy other

24   properties in town, and that was the plan and scheme

25   that they not only planned but implemented, and the fact


                                                               46
 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    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                  P R O C E E D I N G S

 2                          ******

 3                              (Jury present.)

 4                         NANCY BURNS

 5   Having been previously sworn, testified as follows:

 6                     CROSS EXAMINATION

 7   BY MR. DUCLOUX:

 8       Q     Let's talk first about your $10 a day.      It

 9   wasn't $10 a day.     It was $10 an hour and 42 cents a

10   mile.   That's what you charged your mother to come and

11   take care of her place; isn't that right?

12       A     Mother insisted that she --

13       Q     This is a yes or no question.      You charged her

14   $10 an hour and 42 cents a mile to take her around?

15       A     She insisted that she pay.

16       Q     Fine.     But it wasn't just $10 a day even if

17   you were there for six hours or eight hours.       It's $10

18   an hour and 42 cents a mile, right?

19       A     (No audible response.)

20       Q     All right.    Let me move on.

21       Your mother was old.        She was terrified of ending

22   up in a nursing home; wasn't she?

23       A     I don't think she was.

24       Q     Really?     You don't remember all the

25   conversations about how she hated the fact that your


                                                                   7
 1   father ended up in a nursing home and what it smelled

 2   like and what it was like and everything.      She wanted to

 3   die in her own home; didn't she?

 4                    MR. RICHIE:    I don't know -- we're --

 5        A   The --

 6                    MR. RICHIE:    May we approach?

 7                    THE COURT:    Excuse me just a second.

 8                      (The following was in the presence

 9                      but out of the hearing of the jury.)

10                    MR. RICHIE:    We have a motion in limine

11   on the Dead Man's statute, Your Honor.      It's still in

12   force as far as I know.

13                    MR. DUCLOUX:    I'm asking about her

14   understanding.

15                    MR. RICHIE:    No, you asked her what did

16   she say --

17                    MR. WALDEN:    That she didn't like the

18   smell.

19                    MR. RICHIE:    Did she tell you she didn't

20   --

21                    MR. WALDEN:    The question was, "Don't you

22   remember".

23                    MR. DUCLOUX:    I'll stay away from it.

24                    MS. ALLEN:    It might be helpful for his

25   Honor to review 601 which is the rule that Mr. Richie's


                                                                   8
 1   referring to.    What it speaks to is statements about the

 2   very transaction at issue.      It doesn't prohibit you

 3   from, even from talking about those statements.       But

 4   certainly it doesn't prohibit oral statements about

 5   other things at all.

 6                    THE COURT:    Well, I'm going to allow this

 7   line of questioning.    I think it's proper cross

 8   examination.

 9                    MR. RICHIE:    All right.   Thank you.

10                    THE COURT:    These issues were brought up

11   during direct.

12                        (The following was in the presence

13                        and hearing of the jury.)

14       Q      (By Mr. Ducloux)     So are you telling the jury

15   that your mother wasn't terrified of ending up in a

16   nursing home?

17       A      When mother fell in 2008 she was able to get

18   to a phone.

19       Q      I didn't ask you anything about a fall in 2008

20   that you claimed originally that the gate was locked but

21   that somehow you got through it anyway.       But we'll get

22   to that.   My question was, wasn't your mother terrified

23   of ending up in a nursing home?

24                    MS. SEIKEL:    Objection, Your Honor.

25   That's putting testimony in her mouth that she never


                                                                   9
 1   stated.

 2                    MR. DUCLOUX:     This is cross examination.

 3                    THE COURT:     It is.   You may ask her the

 4   question.

 5          Just answer the question that's asked.

 6          Q    (By Mr. Ducloux)     How did your mother feel

 7   about nursing homes?

 8          A    She thought there could be better care for my

 9   dad.

10          Q    Great.     Now, you also told us about how your

11   mother was so fair minded that everything had to be

12   split equally.       Your mother was very active with what

13   she did with her will, and as things changed she made

14   several different wills over and changed the way she had

15   distributed things among the children; didn't she?

16          A    She did.

17          Q    Thanks.    And as far as this was heritage land,

18   in fact she had six siblings:       Manual, Homer, Lenore,

19   Corrine, Ozell, Chester -- not one of them got one-tenth

20   of 1 percent of this land, because she was the daughter

21   who could make it heritage and she could buy it from the

22   parents and keep it in the family, right?

23          A    They agreed.

24          Q    They all agreed.     And maybe your mother, do

25   you think she came up with the idea that Johnny is the


                                                                    10
 1   son who can keep this in the family, he has the ability

 2   to pay for it and the ability to take care of me, and

 3   this is a great idea of how to keep this land in the

 4   family?

 5          A    They didn't do it in secret.    They were wide

 6   open and every one was to participate.      It was not like

 7   our --

 8          Q    Of course you're not going to answer my

 9   question.    Do you get the possibility that your mother

10   might have thought this was actually the best estate

11   plan to keep this land owned by your family to sell it

12   to Johnny who would invest in it and make it better and

13   improve it?

14          A    She may have thought it was a good idea, but I

15   don't think she realized --

16          Q    Oh, wait, wait.    You don't know what she

17   thinks.     She actually did it, right?

18          A    She did.

19          Q    And she was very affirmative about it, wasn't

20   she?

21          A    (No audible response.)

22          Q    And you enthusiastically --

23                    MR. SEIKEL:   Objection, Your Honor.    He's

24   interrupting her and asking questions before she answers

25   the first one.


                                                                  11
 1                 MR. DUCLOUX:     I'm trying to get through

 2   before the end of the day.

 3                 THE COURT:     Well, just give her an

 4   opportunity to answer the question asked.

 5       Q    (By Mr. Ducloux)     That's what your mother did;

 6   didn't she?

 7       A    Ask the question again, please.

 8       Q    What your mother did is decide the best thing

 9   to keep this in the family is to sell it to one child

10   and have a note that would be payable to the whole

11   family after her death?

12       A    And she did.

13       Q    And you enthusiastically supported that;

14   didn't you?

15       A    I was pleased that Johnny was going to be

16   coming back and basically the property would be kept

17   within the family.

18       Q    Right.    But then that -- by the way, I want to

19   make sure since you're talking about all of this.     You

20   don't want this jury to think that you're here

21   representing any of your other three siblings who say

22   they don't want any part of this case, right; you're not

23   here on their power of attorney saying, Go get something

24   for me; are you?

25                 MR. RICHIE:     May we approach again, Your


                                                                 12
 1   Honor.   I'm sorry.

 2                      MS. SEIKEL:     We have a motion in limine.

 3                      MR. RICHIE:     Yes.   There's a motion in

 4   limine on file that is talking about what people who are

 5   not here would testify to.

 6                      MR. DUCLOUX:     I'm not saying --

 7                      MR. RICHIE:     Excuse me.   What he just

 8   said was they don't want any part of this and they've

 9   told you they don't want any part of this.          That's what

10   I'm --

11                      MR. DUCLOUX:     I did not say --

12                      MR. RICHIE:     We can get it read back.

13   That's exactly what you said.

14                      THE COURT:     Re-ask your question.

15                      MR. DUCLOUX:     I'll re-ask my question.

16       Q       (By Mr. Ducloux)       Let's just confirm for the

17   jury that neither you nor your -- Bud, the three of you

18   are not here in any representative capacity for the

19   other siblings?

20       A       No, we are not representing our other

21   siblings.

22       Q       Okay.    Now, you have now experienced this

23   litigation for four years now, right?

24       A       Yes.

25       Q       Do you really think that your family, if your


                                                                      13
 1   mom left it to all six, could have decided on fence

 2   lines when each person got 60 acres?       You know that

 3   Weldon would have sold his 60 acres so that wouldn't

 4   have been part of the estate any more, would it?

 5       A    I don't know what Weldon would have done.

 6       Q    Yeah, but anybody was free to do whatever they

 7   wanted; weren't they?

 8       A    Yes, I suppose.

 9       Q    And the very strong likelihood is that this

10   land wouldn't be heritage and in the family, it wouldn't

11   be kept in the family except under your mother's plan?

12                  MR. WALDEN:    Objection.    Calls for

13   speculation.

14                  THE COURT:    Sustained.

15       Q    (By Mr. Ducloux)     Now, after Johnny got here

16   your income sort of dried up and that was unpleasant for

17   you, wasn't it; that $10 an hour?    As they came in and

18   started doing it you weren't needed any more; isn't that

19   right?

20       A    We -- Bill and I chose to pull away because we

21   were showing up when asked to help with jobs and we

22   would get there, we would set aside our plans and all of

23   a sudden they would say, We don't need you any more, go

24   home.

25       Q    By the way, do you know as part of this plan


                                                                14
 1   Johnny promised your mother she would be able to live in

 2   her house for the rest of her life, right?

 3       A       That was part of the plan.

 4       Q       How did your mother feel about her own father

 5   in general?    She adored her father, right?

 6       A       Yes.

 7       Q       And isn't it true that she got to die in the

 8   same room that he died in?

 9       A       I don't know exactly what room she died in.

10       Q       Well, I'm just asking you based upon your

11   knowledge of your mom, would that have been a

12   significant event?

13       A       Mother had opportunities to write on some of

14   the documents that -- for her POA medical, anything that

15   she -- special wishes.       And she never did write those

16   down there.

17       Q       I'm not sure I understand what you're talking

18   about.     That wasn't my question.

19       By the way, on your power of attorney it made you

20   consult with others.       There was nothing on the power of

21   attorney with Amanda that made her consult with others;

22   did she?

23       A       There was none.

24       Q       That's fine.    Now, you told us that you

25   encouraged the sale, you were happy about it, you helped


                                                                  15
 1   them move when they finally sold their property in

 2   California, right?

 3       A     Correct.

 4       Q     And the first thing that Johnny did for your

 5   mother is he installed air conditioning in her house so

 6   that the last six and a half years of her life would be

 7   pleasant in an air conditioned home for the first time

 8   in her life, right?

 9       A     Bill and I installed that air conditioning

10   system.

11       Q     Johnny hired you because that's what you would

12   do if he paid you to do that; didn't he?

13       A     Correct.

14       Q     So it was not a gift from you and Bill.    It

15   was a job that you were paid for?

16       A     Correct.

17       Q     And Johnny and Amanda, let's make sure the

18   jury understands, they lived in a 20 by 20 concrete

19   floor room for five years 20 feet away so that they

20   could make sure they were there, but not invade her

21   space in her 1,600 square foot house?

22       A     I think they did invade her space.

23       Q     By living in a concrete room appended to the

24   garage for five years?

25       A     When they came they said they were going to


                                                               16
 1   build a new house, and they did not.

 2       Q      Oh.    When -- that's the first we're hearing

 3   about that.      When did that occur?

 4       A      They talked plans -- we were in good standing,

 5   we loved each other, we had good conversations, and they

 6   talked about plans.      They were going to build a new

 7   house.

 8       Q      Isn't it fair to tell this jury that your

 9   mother adored Johnny and Johnny adored Edell; they were

10   very close?

11       A      They were close.

12       Q      Now, let's talk about how your -- that 2007

13   meeting.   As the jury will hear later, as part of this

14   note when they sold it they voluntarily sent $150,000 in

15   August of 2004, four months after the sale, to put

16   towards this $500,000 note.      They didn't have to pay it.

17   Got a chunk of money, sent it to Edell to apply towards

18   the note, right?

19       A      Yes.

20       Q      And the jury will see it later on but

21   basically they were supposed to pay 1,848.10 a month,

22   but instead four months in they put a big chunk of one

23   hundred and fifty and sent it to her, right?

24       A      Correct.

25       Q      And under your paid chauffer-ship you brought


                                                                17
 1   her down to the bank.      And let's just -- this is an easy

 2   question.    Somehow that $150,000 CD ended up with you as

 3   co-owner, right?

 4       A       Yes, sir, it did.

 5       Q       Which means you could have -- you didn't have

 6   time to put six other names on that CD.       It was just you

 7   as co-owner with your mother, right?

 8       A       Glenda Chapman was sitting --

 9       Q       I'm not asking about Glenda.

10       A       She was the one that suggested --

11       Q       I'm not --

12                   MR. DUCLOUX:     Objection.   Nonresponsive.

13                   THE COURT:     Sustained.

14       Just answer the question asked.

15       Q       (By Mr. Ducloux)    So that was a 30 month CD.

16   When would that expire, February 2007?

17       A       Probably so.

18       Q       So let's tell the jury what happened.     The

19   reason you had that confrontation was that that day you

20   told us about yesterday, you went down to the bank to

21   see if that CD had rolled over again solely in your

22   name; didn't you?

23       A       I did not.

24       Q       You did exactly that and when the banker told

25   you, You better check and see about it, you went


                                                                    18
 1   screaming out to your mother's house furious that she

 2   had taken you off.    You had been found out.    You got

 3   caught with your hand in the cookie jar.

 4       A     No, sir.    I --

 5       Q     In fact, if Amanda testifies that you were

 6   screaming so loud she could hear you 100 feet away and

 7   ran in there to make sure Edell was all right, that's --

 8                   MR. WALDEN:    Your Honor, I'm going to

 9   object.   He's assuming facts not in evidence.    And he

10   can cross examine without badgering the witness.      This

11   really ought to be more of a discussion instead of

12   brow-beating.   She can answer the questions and he can

13   ask them without brow-beating her or badgering her.

14                   THE COURT:    This is cross examination.

15   He's allowed to conduct the sort of examination he's

16   conducting.   You're overruled.

17       Q     (By Mr. Ducloux)     So in fact you had a yelling

18   match at your mother; didn't you?

19       A     I respected my mother and did not have a

20   yelling match, sir.

21       Q     And that's why Amanda came.     You stood in the

22   door and tried to block her from coming in the door

23   while you were having this argument; didn't you?

24       A     We met in the doorway but it was not trying to

25   block her.


                                                                  19
 1       Q      Did you tell her not to come in?

 2       A      There was information that -- you know, Johnny

 3   was upset.   Mother was trying to calm him down.

 4       Q      But your mother was in tears because you were

 5   yelling at her, right?

 6       A      I was not yelling at my mother.

 7       Q      Then you said the mailbox was moved.      You knew

 8   that the mailbox was hit by a truck.        It was run over by

 9   some vehicle.      They didn't remove the mailbox.

10       A      I don't know how it was removed, but it was.

11       Q      So if they say it was hit by a truck, you

12   don't have any way to counter that; do you?

13       A      I really don't.

14       Q      All right.    As far as the jury has heard and

15   the voir dire panel heard how they locked the gate.

16   There were keys everywhere.      It was locked for your

17   mother's protection; wasn't it?

18       A      I don't think it was for her protection.

19       Q      Okay.    So you're guessing.    That's your guess

20   that it wasn't for her protection.        She's 88, 89, but if

21   they have to go in, everybody had a key or knew where a

22   key was.   It was hanging on a chain.       Everybody had

23   access to that at any time; didn't they?

24       A      Except EMS if they needed to get there.

25       Q      Pardon me?


                                                                    20
 1       A       EMS.    Emergency vehicles couldn't have gotten

 2   in there.

 3       Q       That's why they have bolt cutters on the EMS

 4   trucks, right?

 5       A       They carry bolt cutters, yes.

 6       Q       Very good.    So interestingly your mother then

 7   -- Amanda ends up as your mother's executor because your

 8   mother put her in the will, right?

 9       A       Yes.

10       Q       Okay.    And let's go back a little further.

11   Your mother was very attached to that property; is that

12   fair to say?

13       A       Yes.

14       Q       And do you, in your own mind -- I won't ask

15   you anything about your mother's opinion -- don't you

16   think it was significant that she got to die in her own

17   house in that same room?

18       A       (No audible response.)

19       Q       You won't even admit that, huh?

20                      MR. WALDEN:    Your Honor, I'm going to

21   object.     He's putting words into the witness' mouth.

22   She hasn't had a chance to answer yet.

23                      THE COURT:    Just give her an opportunity

24   to answer the question.

25       A       It's a passing thought that maybe mother


                                                                     21
 1   wanted to die there, but --

 2        Q    (By Mr. Ducloux) And when Amanda, to achieve

 3   that purpose, to arrange that she could have a Star

 4   Flight back while she was at the hospital, so she could

 5   --

 6        A    That was not --

 7        Q    -- pass away at her own house, the family

 8   said, That's too expensive, why are you wasting that

 9   money?   Right?

10        A    It was not a life or death.      It was not going

11   to save mother's life.    It was like a dog grabbing a

12   bone and taking it and hiding it from the rest of us.

13   It was a power trip for them to control mother's last

14   few hours.

15        Q    Okay.   So your mom passes away.     Amanda is

16   appointed as the executor.    You all got notices, didn't

17   you, that there was a probate pending, right; the

18   normal, You are hereby notified as an heir of the estate

19   that probate has been filed, blah blah blah; right?

20        A    Yes.

21        Q    You have all the records.

22        A    Yes.

23        Q    Let's see what objection did you make to

24   Amanda being appointed?     None, right?

25        A    I didn't


                                                                   22
 1       Q    When she files her first inventory, what

 2   objection did any member of the family make to the

 3   correctness of the inventory?   None, right?

 4       A    Right.

 5       Q    So let's talk about this story of yours where

 6   you save the day about the money.   Do you recall meeting

 7   at the -- first of all, wasn't your mother's plan for

 8   personal property anybody who gave her something got

 9   that back, number one, right?

10       A    Correct.

11       Q    So if there was in fact a ring you gave to

12   your mother, Amanda gave it back to you because it had

13   come to you and you get all the stuff back that you gave

14   to your mom, right?

15       A    Right.

16       Q    And then for the other miscellaneous stuff,

17   her plan, to be fair, was anybody can bid on it, anybody

18   can buy it.   Amanda's to save the money and split it up

19   among the seven heirs, right?

20       A    That was the plan.

21       Q    By the way, your mother also appointed Amanda

22   as the trustee of Weldon's trust; didn't she?

23       A    Yes.

24       Q    Okay.    And when the trust was transferred by

25   agreement by the parties to you, there was no objection.


                                                               23
 1   Everything was completely 100 percent in order for that

 2   trust?

 3       A    Yes.

 4       Q    So everybody was supposed to buy stuff.         If

 5   someone wanted the red rocking chair, they could make a

 6   bid for $10 for the rocking chair, they would buy it

 7   from the estate and the money would be split seven ways,

 8   right?

 9       A    If they were given that opportunity, which

10   they were not.

11       Q    Now, did you remember --

12                    THE COURT:     Excuse me, counselor.   It's

13   10:00 now, and in keeping with my promise to the jury

14   we're going to take a bathroom break for 10 minutes.           Be

15   back in the jury room at ten minutes after 10.

16                        (A break ensued.)

17                        (Jury present.)

18                    THE COURT:   Be seated.

19       Mr. Ducloux, you may continue your cross

20   examination.

21                    MR. DUCLOUX:     Thank you.

22       Q    (By Mr. Ducloux)        I direct your attention back

23   to the time you were talking about where you brought to

24   everyone's attention the money.       Do you recall that was

25   a visit you made to the hardware store and Gwen was with


                                                                    24
 1   you during that visit when you talked about the money?

 2       A     Bud and Gwen were with me.

 3       Q     Pardon me?

 4       A     Bud and Gwen.

 5       Q     And one of the things that happened at the

 6   time of that meeting is that Gwen wrote a check for --

 7                  THE COURT:    Excuse me.   Would you ask

 8   your associate to be seated while we're having

 9   examination.   It's distracting to the jury for you to be

10   gathering documents while we're going through the trial.

11       Go ahead and proceed.

12       Q     (By Mr. Ducloux)    And one of the things that

13   happened is that Gwen wrote her check for the things

14   that she was getting from the estate that day; do you

15   recall?

16       A     Correct.

17       Q     Okay.   So that was the meeting where you

18   talked about the money and later on you think that that

19   encouraged them to declare the 80,000; right?

20       A     I do.

21       Q     All right.   Let me show you what's been marked

22   as Defendant's 2.    And the purpose of this is this is

23   Gwen's check and it's dated November 19.     So does that

24   refresh your memory; was that the date that the

25   conversation occurred about the money, isn't it?


                                                                 25
 1       A       November the 19th, yes.

 2       Q       All right.    Let's look at Exhibit 32 together.

 3   She actually swore to this, the 80,000, earlier than

 4   that conversation.       Tell the jury what day she swore

 5   about having added that $80,000 back in.

 6       A       Fifteenth of November.

 7       Q       Four days earlier than your conversation.

 8   So do you still think you're the one who prompted her to

 9   put the money back in there?

10       A       We had that conversation and afterwards the

11   money appeared.

12       Q       Right.   And four days earlier she swore that

13   it was in there.

14                   MR. DUCLOUX:     We offer Defendant's

15   Exhibit 2, Your Honor.

16                   THE COURT:     Any objection?

17                   MR. SEIKEL:     No, Your Honor.

18                   THE COURT:     Defendant's 2 will be

19   received into evidence.

20                   MR. DUCLOUX:     May I publish one copy to

21   the jury?

22                   THE COURT:     You may.

23       Q       (By Mr. Ducloux)    All right.   Do you recall

24   that I guess the only one who never paid for their share

25   of the estate was you.       You never paid a check; did you?


                                                                  26
 1       A     I did not pay for the items that I picked up

 2   because time was running out and Amanda said we'll do

 3   this at a later date.    That later day never appeared.

 4       Q     Now it's four years later and apparently you

 5   can't send a check by mail or anything.

 6       A     We didn't come to an agreement on what I had

 7   gotten.

 8       Q     Okay.   No one has made a demand on you, right?

 9       A     No.

10       Q     In fact, the jury is not going to decide

11   anything about that you didn't get a rocking chair or

12   that somebody didn't get some piece.    That's not what

13   this case is about, is it?

14       A     It's not.   I would have gladly paid that day.

15       Q     That's fine.

16       A     I was prepared to pay for anything that I had

17   gotten.

18       Q     That's fine, but I just want the jury to

19   understand they're not really facing the question about

20   what was the value of personal property or that it

21   didn't get -- there's nothing about that?

22       A     No.

23       Q     And there's still stuff out there if somebody

24   wants to go through it, right?

25       A     I don't know where it is


                                                                27
 1       Q    Now, let's talk again just briefly about the

 2   relationship between Johnny and Edell.      They brought

 3   your mother out three times to visit in California;

 4   didn't they?

 5       A    I didn't keep count, but she did visit.

 6       Q    And they always paid her way, right?

 7       A    I don't know that.

 8       Q    And they brought family members.      They brought

 9   siblings, cousins, sisters out sometimes too and they

10   always paid their way?

11       A    I don't know.

12       Q    You had complained in your testimony yesterday

13   that Amanda had power of attorney.     Can you tell us what

14   act of Amanda using a power of attorney you're

15   complaining about?   Do you even know if Amanda ever used

16   that power of attorney for anything?

17       A    I don't recall.

18       Q    And then I asked you a few months ago when

19   your deposition was taken --

20                   MS. SEIKEL:    Objection, Your Honor.   The

21   deposition --

22                   MR. DUCLOUX:   I'm sorry.   I'll just ask

23   the question fresh, Your Honor.

24       Q    (By Mr. Ducloux)      Can you tell me a single act

25   of Amanda in her capacity as executor that you are


                                                                   28
 1   complaining of some financial act?

 2       A      I didn't --

 3       Q      Let me rephrase the question.     Let me ask it

 4   again.    Can you show us that Amanda took $10 of your

 5   mother's money and bought herself a T-shirt or anything

 6   that she used your mother's money improperly for any

 7   purpose; a penny, a dime, a dollar, anything?

 8       A      I don't know that.

 9       Q      All right.    So she qualified as the executor

10   and you didn't object, did you?

11                   MR. WALDEN:    Your Honor, I'm going to

12   object.    This is assuming facts not in evidence.      Mr.

13   Ducloux supplied an answer for the witness previously.

14                   MR. DUCLOUX:    This is cross examination.

15   I'm allowed to ask leading questions.

16                   MR. WALDEN:    May we approach?

17                   THE COURT:    I'm going to overrule your

18   objection.

19       Q      (By Mr. Ducloux)     Did you object to her

20   appointment?

21       A      I didn't know that she was executor until

22   after mother had passed.

23       Q      And I'm not trying to make you a lawyer, I'm

24   not trying to ask you legal questions.      Are you aware

25   that she filed any documents in an untimely fashion in


                                                                   29
 1   association with her executorship?

 2       A      I don't know.

 3       Q      All right.     Have you heard from any source

 4   that she filed anything in an untimely fashion?

 5       A      I don't know.

 6       Q      Did you object in any way to her recounting of

 7   the sworn inventory of what's in the estate?

 8       A      No.

 9       Q      And in fact you got distributed over $84,000

10   in cash as your share of cash, right?

11       A      Correct.

12       Q      And there is, as these payments are coming in,

13   there's more pending in the estate account that you have

14   a one-seventh share of?

15       A      Right.

16       Q      And, again, can you tell the jury that there

17   is a payment that she was supposed to put in there that

18   she didn't put in there?

19       A      I have a suspicion that there's some cash

20   missing.

21       Q      Okay.    We're four years out.   Are we going to

22   hear from an auditor that there's cash missing?

23       A      We'll let the auditor speak for it.

24       Q      But you're not aware of any?

25       A      Not offhand.


                                                                   30
 1                    MR. DUCLOUX:     I think I want to save some

 2   time and pass the witness over to Ms. Allen.

 3                    THE COURT:     All right.    You may proceed

 4   with your redirect -- oh, Ms. Allen.          I'm sorry.   Go

 5   ahead.

 6       If I could, approach counsel and let me talk to you

 7   all for just a second.

 8                      (The following was in the presence

 9                      but out of the hearing of the jury.)

10                    THE COURT:     Normally in my experience you

11   do not switch counsel when you're examining a witness on

12   cross examination.    One of you begins, one of you

13   finishes.   You don't sit here and split it.         Is this

14   going to be a common practice where we go ahead and

15   share examination of the witnesses?

16                    MR. DUCLOUX:     Well, we weren't aware of

17   that for this.    We're going to try to streamline it, and

18   the things that are involved, the documents, she's going

19   to do.   And that's really her role.         But we'll do it

20   whatever way the Court wants to do it from now on.

21                    MS. ALLEN:     Well, Your Honor, I'm only

22   going to talk --

23                    THE COURT:     I can't hear you.

24                    MS. ALLEN:     I'm sorry.    I'm trying to not

25   speak to the jury.    I'm not going to talk at all about


                                                                     31
 1   any executor duties.    That's what Mr. Ducloux is

 2   handling.    I'm just going to handle the individual

 3   issues.

 4                   MR. RICHIE:    Okay.     Well, he's been

 5   talking about the individual issues and he just now

 6   shifted --

 7                   MS. ALLEN:    Well, I'm not going to be

 8   denied my right --

 9                   THE COURT:    What I would like for you all

10   to do is to follow the normal rule that when one of you

11   begins a cross examination, then that person finishes

12   the cross examination and that we not violate it or

13   spread it out between -- where everybody gets to --

14   unless there are different parties.        Like you have the

15   right to examine and ask questions because you're

16   representing her in a different capacity.

17                   MS. ALLEN:    He is.

18                   MR. DUCLOUX:    I'm representing Amanda.

19                   THE COURT:    Yes.     So as long as you limit

20   your questions only to the areas that you're involved

21   in, then I'll go ahead and allow you all to do it that

22   way.

23                   MR. RICHIE:    That's the way I would

24   understand it too, but it's not what happened.        Mr.

25   Ducloux just questioned her about her relationship with


                                                                    32
 1   her mom, going to the bank, what happened with -- things

 2   other than --

 3                    MR. WALDEN:    It was far beyond executor

 4   issues.

 5                    MR. DUCLOUX:    We'll follow your rule from

 6   now on.     How's that?

 7                    THE COURT:    I'm going to go ahead and

 8   allow you to carry on with cross examination.       But in

 9   the future let's go ahead and have the attorney that's

10   representing a particular interest only ask the

11   questions regarding that issue and that we not overlap.

12   Now, if you all basically one of you wears out and the

13   other one takes over.

14                    MS. SEIKEL:    He brought up some stuff

15   about the executorship and the inventory, things that

16   were done after the administration of the estate.          We

17   were hoping to respond to --

18                    MR. WALDEN:    I was planning on doing the

19   redirect.

20                    THE COURT:    That's fine.   What we're

21   going to do with this particular witness is I'm going to

22   let you all have free hand to go ahead and do this as

23   far as spreading it out between you.      But in the future

24   let's try to have each side examine your witness unless

25   there is an issue that involves just one of the


                                                                     33
 1   attorneys that's representing one of the parties in a

 2   different capacity.

 3                  MR. RICHIE:    Yes, sir.

 4                  MR. DUCLOUX:    Absolutely, Your Honor.     I

 5   just want to point out that I took 20 minutes after

 6   three hours of direct.

 7                  MR. WALDEN:    He's not complaining about

 8   the time.   He's talking about the way y'all are doing

 9   it.

10                  THE COURT:    I understand.   I'm saying

11   that I really don't want you all to divide the job as

12   far as cross examination of witnesses or direct

13   examination.   I want one attorney to run the lead on

14   that so that we don't have the possibility of

15   overlapping with the same sort of questions styled

16   again.

17                  MR. RICHIE:    While we're up here I would

18   like to address one other issue.    My understanding of

19   cross examination is he can ask a tough question, but he

20   needs to allow the witness to answer the question.        He

21   can object that it's nonresponsive.

22                  THE COURT:    There's a certain latitude in

23   cross examination that the old-school lawyers like me

24   understand because that's the way we used to do it.        And

25   I know there's different practices now that --


                                                                    34
 1                    MR. DUCLOUX:    Are you calling me old

 2   school?

 3                    THE COURT:    I'm just saying you're the

 4   same generation I am.

 5                    MR. DUCLOUX:    Yes, sir.

 6                    THE COURT:    All right.    Thank you.

 7                    MR. RICHIE:    Thank you, Judge.

 8                    THE COURT:    Ms. Allen is now going to

 9   cross examine this witness.

10                    MS. ALLEN:    Thank you, Your Honor.     May I

11   approach the witness, please?

12                    THE COURT:    Yes.

13                        (The following was in the presence

14                        and hearing of the jury.

15                     CROSS EXAMINATION

16   BY MS. ALLEN:

17       Q     Ms. Burns, let me hand you Exhibit 3 and once

18   you have had a chance to look at that, let me know.

19                    MR. WALDEN:    Can we have a copy?

20                    MS. ALLEN:    Yes.

21       Q     (By Ms. Allen)       Ms. Burns, are you ready to

22   proceed, ma'am?    I don't want to cut you off.

23       A     Yes.

24       Q     That is a letter in your mom's hand, right;

25   that is that your mom wrote?


                                                                   35
 1       A      Yes.

 2                     MS. SEIKEL:    We're going to object to

 3   this as non-authenticated and it's subject to the Dead

 4   Man's statute in our motion in limine.

 5                     THE COURT:    Overruled.    You may proceed.

 6       Q      (By Ms. Allen)       And it is your mom's

 7   explanation about what her intentions are about dividing

 8   up her property?

 9                     MS. SEIKEL:    Objection.    Hearsay.

10       A      Yes, there's a few --

11                     MS. SEIKEL:    Could we get a ruling on the

12   hearsay?

13       A      -- things laid out.

14                     THE COURT:    Overruled.

15       Q      (By Ms. Allen)       And it is exactly consistent

16   with what she did, is it not?

17                     MS. SEIKEL:    Is this in evidence yet?

18                     MS. ALLEN:    I'm trying to just lay the

19   predicate, Your Honor.      I'm asking just a yes or no.

20   It's exactly consistent with what she did.

21       A      Yes.

22                     MS. ALLEN:    Your Honor, I offer

23   Defendant's 3.

24                     THE COURT:    Now you may make an

25   objection.


                                                                      36
 1                    MS. SEIKEL:     We object.

 2                    THE COURT:    On what basis?

 3                    MS. SEIKEL:     It's hearsay.    It's not

 4   authenticated.    Dead Man's statute and she was asking

 5   her to interpret it without it being admitted.

 6                    THE COURT:    Overruled.     What was that

 7   number?

 8       Q     (By Ms. Allen)       Ms. Burns, you can hang on to

 9   that for a moment, if you would.       If you need it.       You

10   might not.

11                    THE COURT:     Let me rule on this.

12                    MS. ALLEN:     I'm sorry, Your Honor.       I

13   thought you did.

14                    THE COURT:     What's the number on that?

15                    THE WITNESS:     Number 3.

16                    THE COURT:    Defense Exhibit 3 will be

17   received into evidence.

18       Q     (By Ms. Allen)       Ms. Burns, as your mom wrote

19   out, her -- first off, she confirmed in that letter, and

20   you knew it to be true, that she sold the ranch to

21   Johnny and Amanda, right?

22       A     Yes.

23       Q     And that was off the table, right?

24       A     Yes.

25       Q     You knew that to be the truth?


                                                                        37
 1       A    Yes.

 2       Q    And that the shop and its contents just as she

 3   and your dad, Otto, had bought the place previously and

 4   bought the shop and its contents, that was passing on to

 5   Johnny and Amanda in the same way because they had

 6   bought the ranch, right?

 7       A    Right.

 8       Q    And you knew that, right?

 9       A    Right.

10       Q    And you knew that your mom had given Johnny

11   the old green Chevy pickup, right?   It was like a 1960

12   model, wasn't it?

13       A    I didn't never see any transaction that she

14   had transferred the title.

15       Q    I'm sorry.   If you'll look there at the corner

16   you'll see her note, don't you, where she's kind of

17   tongue-in-cheek saying she gave Johnny that old pickup

18   and boy is he going to have to spend a pile of money

19   fixing it up.   Do you see that in her hand in the

20   right-hand corner?

21       A    I see it.    Yes.

22       Q    And that's what she did, right?

23       A    Yes.

24       Q    And while you may or may not have seen a title

25   transfer, you knew that that is what she did, didn't


                                                               38
 1   you?

 2          A   I didn't ever see this paper.

 3          Q   You knew your mom gave Johnny the old pickup;

 4   didn't you?

 5          A   I did not.

 6          Q   You knew that your mom intended and did sell

 7   the ranch, the cattle and some equipment to Johnny and

 8   Amanda in 2004; correct?

 9          A   Right.

10          Q   You knew it before it happened, didn't you?

11          A   I was at a meeting.     I did not ever see any

12   finished documents.      I didn't know what had transpired.

13          Q   You knew before it happened that your mom was

14   planning to sell the ranch to Johnny and Amanda, right?

15          A   I knew that they were talking about it, yes.

16          Q   You knew that because in your own words Johnny

17   had insisted that you go to the meeting, right?

18          A   Yes.     And I did attend a meeting.

19          Q   Johnny wasn't hiding it from you or anybody

20   else, was he?

21          A   Whenever I suggested that the other children

22   be involved by a registered letter, just let them know

23   that this is happening, Johnny said no, that the place

24   would not ever sell if they ever found out.

25          Q   Lets talk about that.     This is a time when you


                                                                 39
 1   have power of attorney, right?

 2       A     Right.

 3       Q     And it's a special power of attorney because

 4   we've looked at paragraph 25 that obligated you to

 5   consult with the siblings, right?

 6                    MS. SEIKEL:    Objection.    The document

 7   speaks for itself.

 8                    THE COURT:    I'm sorry.    What?

 9                    MS. SEIKEL:    The document speaks for

10   itself and does not state that.

11                    THE COURT:    Overruled.

12       Q     (By Ms. Allen)       Ms. Burns, would you answer,

13   please.   Do I need to re-ask it?

14       A     Please do.

15       Q     We've looked at the special paragraph 25 that

16   the plaintiff's lawyer showed you yesterday and you

17   remember that, right, it has it in there about you

18   consulting with your siblings on things?

19                    MS. SEIKEL:    Objection.    It's a

20   mischaracterization of the document.

21                    THE COURT:    The document will speak for

22   itself.   Overruled.

23       Q     (By Ms. Allen)       Do you remember my question,

24   Ms. Burns?

25       A     Yes.     Charlene and Bud were listed on there


                                                                   40
 1   that I could speak with them if I had any questions.

 2       Q    What I'm trying to get to is this.    At the

 3   time that you say Johnny told you not -- or that he

 4   wasn't going to send a letter.   And that's what you

 5   said, right?    That he wasn't going to send a letter?

 6       A    That's what he said.

 7       Q    And that's what you're telling the jury is

 8   that Johnny said he wasn't going to send a letter,

 9   right?

10       A    He advised that it not happen because he was

11   afraid that somebody would object and that the place

12   would not sell.

13       Q    Okay.    You at this time, I'm just trying to

14   make sure, that at this time when Johnny said he wasn't

15   going to send a letter you were the one with the power

16   of attorney with the special paragraph 25, right?

17       A    Yes.

18       Q    All right.    And you certainly had paper and

19   envelopes and postage money; didn't you?

20       A    I did.

21       Q    And you never notified anybody, did you?

22       A    I did not notify anyone.

23       Q    You knew that Johnny was not going to notify

24   anyone, according to your story, correct?

25       A    Correct.


                                                              41
 1       Q       You do not quarrel with the idea that your mom

 2   had every right in the world to dispose of any of her

 3   property or all of it any way she saw fit, do you?

 4       A       I don't quarrel with it, but I don't know that

 5   she knew what the results would be.

 6       Q       I know you don't know.     We'll get to that.

 7   You never, you never quarrelled with your mom and

 8   suggested to her that she wasn't able to dispose of her

 9   property as she saw fit, did you?

10       A       No.

11       Q       Not when you were getting paid to take her to

12   the grocery store and take her to the doctor and mow her

13   yard and clean her house.       You didn't quarrel then with

14   the idea that she could dispose of her property any way

15   she saw fit; did you?

16       A       I did not.

17       Q       And when you put the $150,000 CD in the name

18   of just you, instead of you and Charlene and Emma and

19   Bud and Johnny and Weldon --

20                     MR. WALDEN:    I'm going to object, Your

21   Honor.     It's mischaracterizing the evidence.    There's no

22   testimony that Nancy Burns put the CD in any one way or

23   another.     There's testimony that Edell Wade did that.

24                     THE COURT:    I'll overrule the objection.

25   I'll allow this line of questioning.


                                                                    42
 1        Q   (By Ms. Allen)      At the time that was done --

 2   how about that -- at the time that was done, the CD put

 3   just in the name of one child and not all of them, when

 4   that happened you never said to your mom any quarrel

 5   about her right to dispose of her property as she saw

 6   fit; did you?

 7        A   As I stated before she didn't want to take the

 8   time to sit there and they had to fill out seven

 9   different documents.    It was a suggestion of Glenda

10   Chapman, the bank officer, to put this in, what I

11   considered in my mind a temporary set up.     It was not my

12   money to deal with.     It was just to get it in there.

13   Mother wanted to deposit it that day.

14        Q   But it was only temporary, right?

15        A   It was temporary in my mind.      It was going to

16   eventually, you know, as CDs, whatever they're set up to

17   be, they're going to mature.

18        Q   Ms. Burns, let me show you Defendant's Exhibit

19   4.

20                   MS. ALLEN:   Your Honor, I apologize.     I

21   did not ask permission to approach.     May I please

22   approach the witness?

23                   THE COURT:   You may.

24        I'll just say as a standing rule I'll allow you all

25   to approach the witness without consent.     If I get upset


                                                                   43
 1   about it I'll tell you to go sit down.

 2                    MS. ALLEN:    Thank you, Your Honor.

 3       Q       (By Ms. Allen)     Ms. Burns, I apologize for

 4   that.     Would you look at that Exhibit 4 for us and

 5   confirm that these are pages that have to do with the

 6   very CD we're talking about, the $150,000 CD?

 7       A       Yes, they are.

 8                    MS. ALLEN:    Your Honor, I offer

 9   Defendant's Exhibit 4.

10                    MS. SEIKEL:    May we have a moment to

11   review.

12       No objection.

13                    THE COURT:    All right.   Defendant's

14   Exhibit 4 will be received in evidence.

15       Q       (By Ms. Allen)     Ms. Burns, if you will look at

16   Defendant's Exhibit 4, could you confirm for us the very

17   top two pages are -- well, the top page is Johnny and

18   Amanda's check to Mrs. Wade August 1, 2004, for 150,000

19   that was a payment on this promissory note, right?

20       A       It says payment on house.

21       Q       And you understood that was a payment on the

22   promissory note that was done in 2004, right?

23       A       I didn't ask what it was for.     I just knew

24   that they had paid that amount.

25       Q       So you didn't ask your mom payment on house,


                                                                 44
 1   what house?    Or anything like that?

 2       A       She was in charge of her check.    I just went

 3   with her.

 4       Q       Well, you were her trusted advisor and her

 5   power of attorney with ability to handle her financial

 6   transactions; were you not?

 7       A       Right.    But I was not -- she was going to do

 8   -- she went there to do her own business.      I was just

 9   with her.

10       Q       Okay.    And on the back is her signature

11   endorsing this check.      On your copy, on that second page

12   of Exhibit 4, do you see where it gets negotiated at the

13   bank; is it there?      If it's not there, just tell me it's

14   not there and we'll move right along.

15       A       I see her endorsement.

16       Q       Her endorsement.    I'm not saying it right.

17   Her endorsement where she signs it and puts it in the

18   bank, right?

19       A       Yes.

20       Q       So there's no doubt but that she got the money

21   and she put it in there, right?

22       A       Oh, I'm not doubting that she didn't put it

23   there.   She did.

24       Q       And then if you'll flip with me to about the

25   fourth page back and you'll see a little number in the


                                                                  45
 1   bottom that says, JDW.      That means Mr. Bud Wade produced

 2   this, 001039.      Do you see that one?

 3       A      Okay.    Yes.

 4       Q      What was the temporary term -- you said it was

 5   temporary.   What was the temporary term of this CD?

 6       A      The term was 30 months.

 7       Q      Thirty months; three, zero?

 8       A      Correct.

 9       Q      And it was in the name, just to be clear, of

10   Edell Wade or Nancy Burns with right of survivorship,

11   correct?

12       A      Correct.

13       Q      Okay.    And so was it within a week or so that

14   the CD was purchased, did you suggest to your mom, Hey,

15   you know, we ought to just square that away and get that

16   in the name of all the kids?

17       A      No, I did not.

18       Q      About two weeks, it's only temporary?

19       A      No, I did not.

20       Q      Three weeks?

21       A      No.

22       Q      To make sure that your siblings would be

23   fairly treated if your mom passed away, at what point in

24   time did you suggest to your mom, You know, we were in a

25   hurry, it was only temporary and we really ought to fix


                                                                  46
 1   that?

 2         A     If mother had passed this would have been

 3   divided equally.

 4         Q     So at no point did you suggest to your mom she

 5   really ought to fix that?

 6         A     No, I did not.   I don't know what the -- if

 7   there would have been some sort of penalties for doing

 8   so.     I don't know.

 9         Q     You went to the bank when this matured in

10   February of 2007, didn't you?

11         A     I was at that bank, but I did not go there for

12   that specific reason.    I went there because Bill and I

13   had some CDs that had matured.      I went there because

14   mother had asked -- had suggested that I go talk to

15   Glenda, get the latest interest rates.     I went there and

16   I was talking to Glenda.     While I was there I thought

17   about this and I remember that there were -- there was

18   this rate that could be bought if it wasn't a set rate.

19   If it went up in the amount, mama could have bumped it

20   to that.     And I just asked has she been in there to take

21   care of that, if it had.     I didn't know whether it had

22   -- whether the rates had changed.     Whenever I did Glenda

23   Chapman just professionally said, Nancy, you need to

24   find out if you're still power of attorney, POA.

25         Q     Ms. Burns, I'm sorry.   You just go right on.


                                                                 47
 1   I don't want to cut you off.

 2       A     I was puzzled, confused as to why mother had

 3   changed -- taken me off as power of attorney, and I went

 4   home.   I called mother to find out if she was at home.

 5   I needed to talk with her about this power of attorney.

 6   I wanted to find out what I had done to offend my

 7   mother, to hurt my mother, whatever made her change her

 8   mind.   I needed to find that out.

 9       Q     Ms. Burns, you told us and made it abundantly

10   clear that your mom had changed her power of attorney at

11   this time, right?

12       A     I did not really find out a lot of things

13   until after mother had passed.   I'm not sure that I even

14   found out.   I just -- I don't know that Amanda actually

15   told me that she was power of attorney that day.    I

16   don't know how far we got into the discussion on that

17   part.

18       Q     Oh, Ms. Burns.

19       A     Pardon?

20       Q     Ms. Burns, let's be fair now.   Isn't it true

21   that you went flying out to your mom's house and one of

22   the things that y'all talked about was the fact that she

23   had removed you as her power of attorney; isn't that a

24   fact?

25       A     I was going to pursue that conversation until


                                                               48
 1   Johnny and Amanda came in the house eventually.

 2       Q    Are you saying it is a fact or it is not a

 3   fact?

 4                 MR. WALDEN:     Your Honor, she's testifying

 5   that that's what she went to ask her mother about, why

 6   she had been removed as power of attorney, and I don't

 7   see the reason for the brow-beating.

 8                 THE COURT:     The question is whether or

 9   not that question was actually asked mother and whether

10   or not she actually gave a response.     I haven't heard

11   that line of testimony yet.

12       Q    (By Ms. Allen)     Isn't it a fact that you went

13   flying out to your mom's house.     You were mad.   And one

14   of the things that you and she discussed was the fact

15   that she had removed you, at some point you did not

16   know, as her power of attorney?

17       A    First of all, I called.     If I were angry I

18   wouldn't have even called.    I would have just, as y'all

19   described it, gone out there.     I called politely to find

20   out if she was there, I needed to talk with her.      I got

21   out there and mother was not angry.     I was not going in

22   there screaming as it's been implied.     I went in there

23   to have a conversation with mother.     Pretty soon Amanda

24   was in the presence.   I didn't want to talk with mother

25   with someone listening on.    And it wasn't long until


                                                                 49
 1   Johnny came in the house extremely furious.        So I didn't

 2   even really pursue too much on that because it was just

 3   all -- it was such a shock to me that I was being

 4   treated this way.

 5       Q    Ms. Burns, will you have an agreement with me

 6   right now that whether you and I have a difference of

 7   opinion about what the facts lead to, that it's

 8   important that these ladies and gentlemen know the true

 9   facts in order to sort out what's right.        Would you

10   agree with me?

11       A    They need to know the truth, yes.

12       Q    Then let's get to it.       Isn't it true that when

13   you talked to your mom that day she told you she had

14   removed you as power of attorney?

15       A    I'm not sure --

16       Q    Yes or no?

17                    MR. RICHIE:    Your Honor, may we approach?

18                     (The following was in the presence

19                      but out of the hearing of the jury.)

20                    THE COURT:    The court reporter has

21   advised that she cannot put it on the record unless you

22   speak right into that little microphone right there.         So

23   if you need to voice an objection or make a statement,

24   make sure that she can pick it up.      Okay.    Go ahead.

25                    MR. RICHIE:    We have a motion in limine


                                                                  50
 1   with respect to the Dead Man's statute.     That was an

 2   absolute question about a material fact in this case.

 3   "Isn't it true that your mother told you she removed you

 4   from the power of attorney".     That's the question.

 5   That's what brought me to my feet.     That's a violation

 6   of the Dead Man's statute.

 7                   THE COURT:    Now, hang on a second, folks.

 8   We have ignored the Dead Man's statute throughout all of

 9   the questions that you all asked about mama said and

10   mama did this and mama did that.     I didn't hear any

11   objections.    I'm assuming that you all had satisfied

12   yourselves that all of these things are corroborated and

13   were admissible.

14                   MR. RICHIE:    I have not heard any

15   corroboration to whether or not -- we can take her on

16   voir dire and ask her whether or not there was anyone in

17   the room when mama made the statement about taking her

18   off the power of attorney and who was in the room.        We

19   can do that.

20                   MS. ALLEN:    Your Honor, the power of

21   attorney is not what this lawsuit is about.     But the

22   circumstances of this meeting are important for the jury

23   to know the truth about, and I just want them to know

24   the truth about what was said.     It's abundantly

25   corroborated that mama changed the power of attorney


                                                                    51
 1   because we have it in evidence from the plaintiffs.

 2   It's in writing, it's signed and it's acknowledged.

 3   There's a new power of attorney.     They showed them both

 4   and they put them both in evidence.     There's all the

 5   corroboration that you need.     But this witness needs to

 6   own up about this meeting and she said that it was the

 7   beginning of the downfall of the entire thing, and we

 8   need to know the truth about it.     So it's not a question

 9   of whether or not mama changed the power of attorney.

10   We know she did.     They even told us she did.   It's in

11   evidence.    But we need to know the truth about all of

12   this.

13                   MR. RICHIE:    Judge, first of all this is

14   about undue influence and we're trying to show control

15   over Edell Wade that caused her to act in a certain way

16   and act against what otherwise would have been her

17   interests.

18                   THE COURT:    What I'm going to do is this.

19   I'm going to go ahead and allow you to ask that question

20   to get that answer.     If it turns out that it cannot be

21   corroborated by your witnesses then I'll instruct the

22   jury to disregard.

23                   MR. WELDON:    It has to be corroborated by

24   a disinterested witness.

25                   MR. RICHIE:    That's right.


                                                                  52
 1         Can we take this witness on voir dire?      If there

 2   was nobody present when she was talking to her mother

 3   about the power of attorney it can't be corroborated.

 4                  MR. DUCLOUX:    She even testified

 5   yesterday she asked her mom why did you remove me.         I

 6   don't think this is a secret.    None of this is a secret.

 7                  MR. RICHIE:    But this is a question about

 8   what did mom say in response.

 9                  MS. ALLEN:    Your Honor, they have been

10   allowed to put on testimony through this witness that

11   she went out there to say what did I do wrong to offend

12   you that you changed me from power of attorney.       It

13   doesn't matter.   It's not an issue in the case.      But the

14   truth is important.   We know that Mrs. Wade changed the

15   power of attorney.

16                  THE COURT:    Yes, we know that.

17                  MS. ALLEN:    That's corroborated right

18   here in the Plaintiff's Exhibit 9.     So we know that.

19   And it's not an issue of dispute.    The Dead Man's

20   statute says we don't do he said/she said about the

21   transaction at issue in the lawsuit.     I understand.         I'm

22   not trying to do that.   But if you'll allow it, what she

23   said in her deposition is we had a conversation about

24   it.   I told mama that she couldn't have two powers of

25   attorney and --


                                                                     53
 1                      THE COURT:    You may ask her about her

 2   previous testimony in the deposition.

 3                      MS. ALLEN:    Okay.

 4                      THE COURT:    And you can cross examine her

 5   on that particular issue.

 6                      MR. RICHIE:    And it's subject to our

 7   objection.

 8                      THE COURT:    All right.    I'm overruling

 9   our objection and allowing her to make that inquiry.

10                      MR. RICHIE:    Thank you.

11                          (The following was in the presence

12                           and hearing of the jury.)

13       Q       (By Ms. Allen)       Ms. Burns, I'm going to ask

14   you to revisit some conversation that you and I had in

15   your deposition testimony, and for the moment I'm going

16   to try to confine it to that, okay?

17       A       Okay.

18       Q       Do you need, by the way, a copy of your

19   deposition handy for you; would that be helpful for you

20   or not?

21       A       Yes.

22                      MR. RICHIE:    Judge, I'm sorry, but may we

23   approach?

24                          (The following was in the presence

25                           but out of the hearing of the jury.)


                                                                     54
 1                    MR. RICHIE:    My understanding of the

 2   Court's ruling is that she's allowed to examine her

 3   about the same thing she examined her in the deposition.

 4   She hasn't denied saying it yet, so the way the

 5   depositions get used is you first say -- you ask the

 6   same question.    If she denies it then you use it to

 7   impeach her.     But right now --

 8                    THE COURT:    Right now she has not

 9   admitted that she had a discussion with mom about the

10   power of attorney being changed.

11                    MR. RICHIE:    Or denied it.

12                    THE COURT:    She's admitting in here that

13   she did have that conversation.      I'm going to allow them

14   to go ahead and impeach her based upon the testimony

15   that she gave in her prior deposition.

16                    MR. RICHIE:    And I simply wanted to raise

17   the objection and I'm trying to not raise it in front of

18   the jury that until she denies that she had that

19   conversation, it's not impeachment.      She has not

20   answered yet whether she had that conversation or not.

21                    THE COURT:    At this particular juncture

22   she has not admitted that she had a discussion with mom

23   about the power of attorney.      She said that she was

24   interrupted by Johnny and Amanda and was not able to

25   talk to her mother about it.


                                                                   55
 1                    MR. RICHIE:    All right.   Thank you.

 2                    THE COURT:    It is for that reason I'm

 3   going to allow them to impeach her.

 4                        (The following was in the presence

 5                        and hearing of the jury.)

 6       Q    (By Ms. Allen)        Ms Burns, what I am asking you

 7   about is your testimony to this jury that you were

 8   somehow interrupted in an effort to have a discussion

 9   with your mom about what you had done to offend her so

10   that she had removed you as power of attorney.       Are you

11   with me on the topic that we're discussing?

12       A    Yes.

13       Q    All right.     And you know that what happened is

14   that you went out to talk to your mom about that very

15   topic and your view of it is that her response to you

16   was she told you that she had -- first she told you that

17   she had given power of attorney to Amanda, right?

18       A    I don't remember her saying that exact

19   statement.   I did revisit -- after I left the place that

20   day, went back home, I went and revisited mother on a

21   Sunday, the following Sunday.

22       Q    Yes, ma'am.     And we'll get to that.     We will.

23   I promise you.    But can we just stay on topic for a

24   moment so that we can get to this issue of whether you

25   got to have the full discussion that you went out there


                                                                    56
 1   to have.     That's what I'm trying to get to a fair answer

 2   on, okay?

 3       A       Correct.

 4       Q       And you did get to have a fair discussion on

 5   that topic, didn't you, with your mom?

 6       A       I don't really remember our discussion.       I was

 7   kind of in shock because of --

 8       Q       Was your memory better at the time your

 9   deposition was given than it is here today?

10       A       Probably so.

11       Q       Okay.   Can you look with me, let's start on

12   page 49.     When you're there, let me know.    Actually we

13   might go back to page 48.       Do you see there at the

14   bottom of 48, we're talking about this very meeting that

15   we're talking about at your mom's house, right?

16       A       I'm not sure that it was exact, that exact

17   visit.     I said that I revisited her the following day.

18   I don't even remember some of the conversation --

19       Q       Ms. Burns, just read up -- if we need to back

20   all the way up to page 47.      You know that you're talking

21   about this meeting occurred.      Do you see that on page 47

22   in February of 2007.       That's what I'm asking you about.

23   Are you with me?

24       A       I see page 47, yes.

25       Q       And the question about this meeting in


                                                                   57
 1   February of 2007, right?     In fact, I want to be sure I

 2   nailed it down in time.     Do you see that?   Page 47 at

 3   lines 7 and 8.

 4         A    Right.

 5         Q    And if you'll just keep dropping down you'll

 6   see that what you told me then was that you were the

 7   power of attorney, right, and you went to check on the

 8   CD.   Do you see that testimony right here?    Because if

 9   I'm mischaracterizing it you feel free to tell me.

10         A    No, I see it.

11         Q    You went to check on that CD and it even says

12   here, $150,000 CD, right?

13         A    Yes.

14         Q    And you said when you went to check on your

15   mom's CD you said Glenda Chapman told you that you

16   needed to find out if you were still the power of

17   attorney, right?

18         A    That's what it says.

19         Q    I just want to make sure we've got the

20   context.   And then you say, I called mother.     Which you

21   have told us here today, correct?     This is the same

22   incident is what I want to make clear.

23         A    Yes.

24         Q    Same incident, right?

25         A    Yes.


                                                                 58
 1       Q    Yes, ma'am.        Okay.   And you went out there and

 2   you had a discussion, and I asked you what did your mom

 3   tell you about whether you were still needed as a power

 4   of attorney.     Do you remember that?

 5       A    Yes.

 6       Q    And you know what you told me don't you?           You

 7   told me that y'alls discussion was that you were talking

 8   about with her whether she could have two powers of

 9   attorney, right?

10       A    She wasn't clear on that.        She thought she

11   could have two.

12       Q    And that whole discussion occurred because she

13   told you that she had named Amanda as her power of

14   attorney, right?

15       A    That's what it says here.

16       Q    And that is the truth, right?        That your mom

17   told you that day she had changed the power of attorney,

18   Amanda was the power of attorney and that was very clear

19   to you, right?

20       A    That's what it says.

21       Q    And it's the truth. I mean, it was your sworn

22   testimony.     It's true?

23       A    Yes.     Yes.   Okay.

24       Q    Okay.     It wasn't ever you, but it was Johnny

25   who talked to your mom about we need to get this


                                                                       59
 1   $150,000 CD done the way mama intended with all the

 2   children on it, not just one, right?

 3          A   Right.

 4          Q   And you knew that, right?

 5          A   I didn't know he had done that.

 6          Q   Well, he didn't do it.     You've got the

 7   documents in front of you that would tell you your mama

 8   did it just like you said she made this $150,000 CD in

 9   your name.   Do you see that?     It's right here.     You've

10   looked at these documents, haven't you?

11          A   I have.

12          Q   You got these documents, didn't you, from the

13   bank?

14          A   After mother's death.

15          Q   Yes.     You've had them for about four years

16   now?

17          A   Yes,

18          Q   And you've looked at them and you know your

19   mama did that change, right, to make it into all the

20   children's names?

21          A   I don't know whether she was with someone or

22   whether she was by herself.      I wasn't there.

23          Q   You know she's the one that did the change;

24   don't you?

25          A   Yes.


                                                                     60
 1       Q    You know that.

 2       A    But I don't know that she was by herself.

 3       Q    All right.    Well, she wasn't by herself when

 4   she made the change with you?

 5       A    No.    I was with her.

 6       Q    You have told Mr. Ducloux that what is at

 7   issue here is the note modification agreement; is that

 8   right?

 9       A    Yes.

10       Q    Isn't it true that you don't know of any

11   payments that didn't get made under either the note or

12   the loan modification agreement.    Isn't that true?

13       A    I don't know.

14       Q    You have said in sworn testimony that to the

15   best of your knowledge monthly payments were made and

16   you know about the $150,000 payment in August, right?

17       A    I know there were payments made but I'm not

18   sure they were all made.

19       Q    Your lawyer is, isn't he?

20       A    Pardon?

21       Q    Your lawyer is, isn't he?     He did the schedule

22   that shows that, didn't he?

23       A    I don't know who authored that schedule.

24                   MR. WALDEN:   Objection.   Assuming facts

25   not in evidence.


                                                                 61
 1                    THE COURT:    Sustained.

 2                    MS. ALLEN:    I'll ask him.   They're

 3   telling me to ask him about that.

 4          Q   (By Ms. Allen)      After four years you're

 5   looking at all these bank records, to the best of your

 6   knowledge there are no missing payments from the loan in

 7   the loan modification, correct; all the payments have

 8   been made?

 9          A   I don't know.      I haven't gone through them

10   myself.

11          Q   You haven't gone through them in four years?

12          A   No.

13          Q   So you're not trying to persuade the ladies

14   and gentlemen of this jury that the note hasn't been

15   paid, right?

16          A   I am not relying on my ability to find that

17   out.

18          Q   Okay.    You do know that under the promissory

19   note the payment that was provided for was $1,849,

20   right?

21          A   Right.

22          Q   And you do know that under the modification

23   agreement, the monthly payment that was provided for was

24   $1,200, right?

25          A   Correct.


                                                                 62
 1       Q    And that is a difference of $649, right?

 2       A    Yes.

 3       Q    Is it accurate that you believe you're

 4   entitled to one-seventh of whatever is remaining to be

 5   paid on the loan and loan modification?

 6       A    Yes.

 7       Q    When Amanda had mostly completed her work, you

 8   remember that Michael Martin sent out distribution

 9   checks to all of the beneficiaries that distributed to

10   you the money that your mom had left you?

11       A    Yes.

12       Q    Let me show you Defendant's Exhibit 5, and

13   let's make sure that we know -- have documentation about

14   what your mom left to you through her will.     Exhibit 5

15   reflects a check.

16                   MR. WALDEN:    Your Honor, I object.   May

17   we approach?

18                   THE COURT:    Yes.

19                       (The following was in the presence

20                        but out of the hearing of the jury.)

21                   MR. WALDEN:    I knew this was going to be

22   stated incorrectly because it has been for months.      What

23   we're talking about is not through Mrs. Wade's will.         It

24   was through POD certificates of deposit.     I just want

25   counsel to state it correctly and not deliberately


                                                                  63
 1   mislead the witness by confusing her.        She's -- Nancy

 2   Burns has never received one dollar of cash under the

 3   will.    She's received the POD beneficiaries.

 4                     MS. ALLEN:    Let me -- can I try that

 5   question again?     I don't even exactly understand your

 6   point, but I'll try again.

 7                     MR. WELDON:    Well, I think the Judge

 8   does.

 9                     THE COURT:    He says that there has not

10   been any testamentary assets distributed --

11                     MR. WELDON:    Other than maybe personal

12   items.

13                     THE COURT:    It's only been

14   non-testamentary assets.

15                     MS. ALLEN:    Okay.   I think I get it.

16                     MR. WELDON:    That's critical.

17                         (The following was in the presence

18                         and hearing of the jury.)

19       Q      (By Ms. Allen)       Ms. Burns, we -- and the jury

20   can look at their leisure if they wish -- to see how it

21   looks when you have a certificate of deposit POD, pay on

22   death, to a bunch of beneficiaries as your mom did in

23   this case.   You know the one I'm talking about, right?

24       A      Yes.

25       Q      And a lot of the money that you got when your


                                                                     64
 1   mom passed away came to you in that way, correct?

 2          A      Yes.

 3          Q      Of the amounts Mr. Martin distributed which of

 4   them came to you in that way?          What were the amounts

 5   that came to you in that way?          Do you understand what

 6   I'm asking because I'm told it's an important

 7   distinction.

 8          A      I am not sure what you're wanting me --

 9          Q      I wasn't either, but here's what I'm looking

10   for.       You know that your mom had a bunch of certificates

11   of deposit and that you got the benefits of that when

12   she died, right?

13          A      Right.

14          Q      And so there's a number of amounts in Mr.

15   Martin's letter that total up to about $90,000 to you;

16   am I right?       I hate to do math.     That's why I just gave

17   you the check.

18          Mr. Ducloux says it's $84,096.       Does that sound

19   about right?

20          A      Yes, it does.

21          Q      That you received after your mom's death,

22   right?

23          A      Correct.

24          Q      From either these assets that she had

25   accumulated and held in certificates of deposit or bank


                                                                     65
 1   accounts and other parts of things that came through her

 2   estate, right?

 3       A       Yes.

 4       Q       All right.    And there's no doubt that she left

 5   that in cash and you got it, right?

 6       A       Yes.

 7       Q       Is it true that you spent many times that in

 8   this lawsuit?

 9                      MR. WALDEN:    Objection.   Assumes facts

10   not in evidence.

11                      THE COURT:    Overruled.

12       You may answer.

13       A       Have I spent, myself -- by myself spent more

14   than 84,000?

15       Q       (By Ms. Allen)       I want to know if it's true

16   that you've spent everything that your mom gifted to you

17   and then some to pursue this lawsuit; isn't that true?

18       A       Yes.

19       Q       You said a moment ago you and Bill Burns chose

20   to withdraw from your mom.         Do you remember that?   You

21   chose to.    That's what you said.       Do you remember it?

22       A       I didn't chose to withdraw from mother, no.

23       Q       You had a key to the lock on the front gate;

24   didn't you?

25       A       I had a key but after I was terrified of what


                                                                      66
 1   happened when Johnny came into the house that day I did

 2   not want to go back on that place by myself.    And

 3   whenever I did I had someone with me.

 4       Q     Ms. Burns, you had a key to any lock that was

 5   ever on that front gate so far as you know; isn't that

 6   true?

 7       A     I didn't never try it, so I don't know.

 8       Q     You had a key, did you not?

 9       A     I --

10       Q     You had a key?

11       A     I had a key but I didn't know whether it would

12   even -- I didn't have any desire to even try it.

13       Q     Now, there you go.   You didn't have any

14   desire.   Let's set that aside.   Johnny gave you a key;

15   didn't he?

16       A     I had a key but I didn't want to go back on

17   there and be arrested or --

18       Q     Johnny never threatened to arrest you; did he?

19       A     I was so unwelcomed that I didn't know what

20   was going to happen.

21       Q     Okay.   Let's just stick with the facts.

22   Johnny never threatened to arrest you; did he?

23       A     Not to arrest me.

24       Q     And he never threatened to file trespass

25   charges against you; did he?


                                                                67
 1       A    No, he did not.

 2       Q    And you weren't scared enough that you didn't

 3   come back the very next Sunday, because you were just

 4   about to tell us about that.   You did come back the very

 5   next Sunday; didn't you?

 6       A    I did come back because I was --

 7       Q    You got right in the gate, right?

 8       A    I came back because I knew whenever I left

 9   there that mother was extremely upset.   That is one

10   thing that I did not ever want to do is to upset mother.

11   I wanted to --

12       Q    A week later after you were terrified, you

13   came back and you got right in the gate; didn't you?

14       A    Whenever I came back Johnny and Amanda weren't

15   even there.

16       Q    You got right in the gate; didn't you?

17       A    I'm not sure when the actual lock -- sometimes

18   the gates were locked, and I'm not sure how --

19       Q    There was never a time that you didn't get

20   right in the gate if you wanted in; was there?    Never.

21       A    Because after -- after that incident, yes, I

22   went back --

23       Q    Ms. Burns --

24       A    -- the following Sunday.

25       Q    Ms. Burns, there was never a time that you


                                                                68
 1   could not get in the gate if you wanted to get in the

 2   gate to see your mom; was there?

 3       A     I'm not sure that my key would have even fit

 4   if I had tried it.

 5       Q     Are you understanding what I'm asking you?

 6       A     I understand what you're saying, but I also do

 7   not know whether that key would actually fit.

 8       Q     Well, you hadn't tried to find that out?

 9       A     Right.

10       Q     You never had to try because you always got

11   right in; didn't you?

12       A     I felt threatened.    I felt --

13       Q     Johnny never threatened you?

14       A     Whenever he came in that day I did feel

15   threatened.

16       Q     Oh, he was mad.

17       A     Yes, he was.

18       Q     Yes, ma'am.    I bet he was.

19       A     Yes, he was.

20       Q     But he never threatened you; did he?

21       A     I'm not sure if I had not walked off and

22   mother was there saying, Johnny, Johnny -- calming him

23   down.   She saw how --

24       Q     Ms. Burns, he never threatened you; did he?

25       A     He didn't try to hit me, but his presence, his


                                                              69
 1   -- that was a threat to me.   His presence was anger.

 2       Q     Oh, yes.   He was mad.   I'll give you that.

 3   When you came back the next Sunday you were visiting

 4   with your mom in the house and Amanda came in just to

 5   see who was at Mrs. Wade's house, right?

 6       A     Yes.

 7       Q     And she saw it was you and it was fine.    She

 8   went right away, right?

 9       A     I guess she did.

10       Q     Well, you know she did, right?

11       A     I didn't go follow her out and see where she

12   went.   She may --

13       Q     She didn't interrupt, right?     She didn't tell

14   you to get out?

15       A     No, she didn't.

16       Q     She didn't say, I'm going to call the cops,

17   nothing like that.   None of that ever happened; did it?

18       A     No.

19       Q     You chose not to spend time with your mom;

20   isn't that true?

21       A     I didn't feel comfortable any more.

22       Q     And you chose not to spend time with your mom

23   because of that, right?

24       A     I don't -- I guess, yes, I chose -- I made

25   that decision but I felt it was for my safety.     And I


                                                                  70
 1   didn't want to go out there and have another upsetting

 2   time with mother.    That was just -- I respected mother.

 3   I didn't go screaming at her like y'all have insinuated.

 4   I respected her.    She taught us to respect.

 5       Q       Ms. Burns, I don't mean to cut you off.      If

 6   there's more you'd like to say about that --

 7                   THE COURT:   Counsel, how much longer?

 8                   MS. ALLEN:   I would like for her to

 9   identify these two exhibits and then I would like to

10   pass her.

11                   THE COURT:   Okay.   Let her go ahead and

12   identify her because we're running a little bit past the

13   time we said we would normally take breaks.

14                   MS. ALLEN:   Your Honor, I'm told that if

15   she is able to, and I expect she is because she has

16   identified these two exhibits that I have, a couple of

17   questions about them, that it's better to --

18                   THE COURT:   All right.   We'll take a

19   recess now for 10 minutes.    Be back in Court -- back in

20   the jury room at 11:24.

21                        (A break ensued.)

22                        (Jury present.)

23                   THE COURT:   Please be seated.

24       Ms. Allen, you may proceed with your cross

25   examination.


                                                                   71
 1                     MS. ALLEN:   Thank you, Your Honor.

 2         Q     (By Ms. Allen)     This is 6 and 7, Ms. Burns.

 3   I'm going to show you Defendant's 6 and 7.

 4         Ms. Burns, when you have a moment to look at those

 5   I would like to ask you about them.       Do you recognize

 6   those as your records, Ms. Burns?

 7         A     Some of them are not.

 8         Q     Some of them are receipts that you collected,

 9   right?     Not records you generated but receipts you

10   collected?

11         A     No.

12         Q     What is there that is not your record or a

13   receipt that you collected?       You're looking at 7 now,

14   correct?

15         A     In the one that's not --

16         Q     It's not stapled.

17         A     Right.    This Moresco Roofing and Remodeling --

18         Q     When the cedar was cleared, is that what that

19   is?

20         A     I'm not sure what it is.

21         Q     You can't see --

22         A     Okay.    Cut cedar at ranch per agreement.   I

23   didn't have anything to do with that.

24         Q     You didn't have anything to do with that.

25   Would you take that off.


                                                                  72
 1                        MR. RICHIE:    What page was that?

 2                        MS. ALLEN:    She'll tell us.

 3          Q      (By Ms. Allen)       If you'll just tell us the

 4   number of the page there on the bottom that's being

 5   taken off because I want to be sure the record is

 6   complete.

 7          A      138.

 8          Q      Is there anything else you need to take out so

 9   that we know we have your record?

10          A      I haven't looked at all of it yet.

11          Q      You recognize Exhibits 6 and 7 as reflective

12   of hours, mileage, charges that you made.            In the case

13   of Exhibit 6 there's examples of mileage charges and

14   hours you charged to your mom, right?

15                        MS. SEIKEL:    Pardon me.   We don't have

16   138.       Isn't it 138 that you just took out?

17                        MS. ALLEN:    It may have been because it

18   was inadvertently included, but it's not in it any more.

19          Q      (By Ms. Allen) Ms. Burns --

20          A      It says AJW 00138 at the bottom.

21                        MS. SEIKEL:    Just to confirm, we have AJW

22   0096.

23          A      That's for Exhibit 7?

24          Q      (By Ms. Allen)       Yes, ma'am.

25                        MS. SEIKEL:    Well, hold on.


                                                                        73
 1       Q    (By Ms. Allen)    Ms. Burns, I want you to be

 2   satisfied about these records.   Isn't it true that

 3   Exhibit 6 is your records or Bill Burns' records about

 4   hours and mileage and things like that that you charged

 5   your mom to do the things that you and Mr. Ducloux

 6   talked about.   And we don't need to repeat that.

 7       A    These are the records, yes.

 8       Q    They're examples of that but not all of them,

 9   right?

10       A    Yes.

11       Q    All right.    And Exhibit 7 are examples of the

12   charges that you and Mr. Bill Burns made to Johnny and

13   Amanda after they purchased the ranch in February of

14   2004, right?

15       A    Correct.

16       Q    So you charged them on an hourly basis and

17   mileage basis for doing the things you used to charge

18   your mom for, right?

19       A    There was a different agreement.

20       Q    You did similar things for Johnny and Amanda

21   that you used to do for your mom, right?

22       A    We hauled off trash and things that mother

23   didn't never ask us to do.   We cleaned up -- they were

24   taking down old fences.   We even went over on the

25   hilltop and picked up beer cans and beer bottles because


                                                                74
 1   Johnny wanted us to.

 2       Q       Yes, ma'am.    I am not suggesting that you were

 3   not asked to do what you did, but is it accurate that

 4   after Johnny and Amanda bought the ranch they directed

 5   you to take certain maintenance and repair and clean up

 6   and that sort of thing because they owned the place; and

 7   you did that, right, that's what these records reflect?

 8       A       Right.

 9       Q       And you charged them for it, right?

10       A       Yes, because we had an agreement that they

11   would pay us.

12       Q       Yes, ma'am.    I'm not being critical.    And they

13   paid you, right?

14       A       They did.

15       Q       Everything that you asked them?

16       A       Right.

17       Q       Okay.    Ms. Burns, isn't it true that you don't

18   quarrel with the idea that your mom had the absolute

19   right if she chose to do it to make a gift to her son

20   Johnny in the form of a reduction of principal on the

21   promissory note?

22                   MS. SEIKEL:    Assumes facts not in

23   evidence.

24                   THE COURT:    Overruled.

25       Q       (By Ms. Allen)    Do you remember my question?


                                                                  75
 1       A      It's about a gift, if she wanted to give a

 2   gift that she could.

 3       Q      Yes, ma'am.

 4       A      If she wanted to, yes.

 5       Q      And you don't quarrel with her right to do

 6   that; do you?

 7       A      I do not.

 8       Q      If Johnny says that's exactly what she did,

 9   you don't have any reason to dispute that; do you?

10       A      I don't think that mother realized what she

11   was doing.

12       Q      Ms. Burns, page 47 -- no, 67 of your

13   deposition -- and this is the end of this examination --

14   Page 67.   If you will look at line 21.       The question I

15   asked you that day when you were under oath is this:

16              "If Johnny says that's exactly what she did,

17   you don't have any reason to dispute that; do you?"

18       What did you say?

19       A      I said I don't.

20       Q      And that was true, wasn't it?

21       A      Yes.

22                     MS. ALLEN:    Pass the witness.

23                     MS. SEIKEL:    Objection.   Optional

24   completeness.

25                     THE COURT:    They've passed the witness.


                                                                    76
 1   You may redirect in those areas.

 2       By the way, did you offer those two exhibits?

 3                    MS. ALLEN:    Your Honor, you are exactly

 4   right.   I don't know that I did, but I certainly didn't

 5   get a ruling on it.    So I would like to offer 6 and 7.

 6   Thank you very much.

 7                    THE COURT:    Do you have any objections to

 8   6 and 7?

 9                    MS. SEIKEL:    None, Your Honor.

10                    THE COURT:    All right.   Defendant's 6 and

11   7 will be received into evidence.

12                    MS. ALLEN:    Your Honor, also before I get

13   too far away from it, I didn't get a ruling on Exhibit 5

14   and I would appreciate just getting a ruling on that.

15       Ms. Burns, if you would like to remind the Court

16   what you have there as Exhibit 5 so that the record is

17   very clear.   My recollection, Your Honor, is that it's

18   the letter and the checks from Mr. Martin.

19                    MR. RICHIE:    No objection, Your Honor.

20                    THE COURT:    Well, he just said he doesn't

21   object to 5 coming in.     So 5, 6 and 7 will be received

22   into evidence.

23                    MS. ALLEN:    Thank you, Your Honor.

24                    (End of cross examination of Nancy

25                    Burns.)


                                                                  77
 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   Supplemental REPORTER'S      RECORD

 2                   VOLUME 5 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       CONTINUATION OF TRIAL TESTIMONY OF JOHNNY WADE

11                            AND

12              REBUTTAL TESTIMONY OF AMANDA WADE

13

14

15

16

17

18

19

20              On the 3rd 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 5 OF 6 VOLUMES

 3                  CHRONOLOGICAL INDEX

 4   PLAINTIFF'S WITNESSES:

 5   NAME:            Dir     Cross   Redir   Recross    Vol

 6   Amanda Wade                      75       83        5

 7   DEFENDANT'S WITNESSES:

 8   NAME:            Dir     Cross   Redir   Recross    Vol

 9   Johnny Wade       7      25       69      73         5

10

11   Court Reporter's Certificate              Page 85       5

12

13

14

15

16

17

18

19

20

21

22

23

24

25


                                                                 4
 1                   REPORTER'S RECORD

 2                 VOLUME 5 OF 6 VOLUMES

 3                  ALPHABETICAL INDEX

 4   WITNESSES:          Dir   Cross     Redir   Recross   Vol

 5   Amanda Wade                         75       83       5

 6   Johnny Wade         7     25        69       73       5

 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 5 OF 6 VOLUMES

 3                    EXHIBIT INDEX

 4   PLAINTIFF'S EXHIBITS:

 5   No:      Description                Offered   Rec'd   Vol

 6   102       Copies of checks            48      48          5

 7   103      Copies of checks             50       50     5

 8   104       Copy of check               76      76      5

 9

10   DEFENDANT'S EXHIBITS:

11   No:      Description                Offered   Rec'd   Vol

12   31        Bill of Sale                 8      8       5

13   32       Closing document             23      23      5

14   33       Pat Cavness's file           71      72      5

15

16

17

18

19

20

21

22

23

24

25


                                                                   6
 1                   P R O C E E D I N G S

 2                              (Jury in.)

 3                          JOHNNY WADE

 4   Having been previously sworn, testified as follows:

 5                 DIRECT EXAMINATION CONTINUED

 6   BY MS. ALLEN:

 7         Q     So Mr. Wade, just to kind of reorient us, when

 8   we broke yesterday you had spoken with us about your

 9   mama naming her price and your decision that you could

10   deal with that.     You then talked a little bit about some

11   cattle and farm equipment being included in the sale; do

12   you remember that?

13         A     I do.

14         Q     We've seen some of the closing documents but

15   let me show you Exhibit 31.      Just look that over.   I'll

16   need to identify and have it admitted before we talk

17   about it.

18         Mr. Wade, are you familiar with Defendant's Exhibit

19   31?

20         A     I am familiar with it.

21         Q     Does that have your signature on it?

22         A     It does.

23         Q     Okay.   Just tell us what it is just for

24   identification purposes.

25         A     It's a bill of sale and assignment describing


                                                                    7
 1   basically personal property, cattle warranties.       Kind of

 2   a, I guess a transaction and documentation.

 3       Q     Does this correspond to the farm equipment and

 4   animals that you were talking about yesterday?

 5       A     I believe so, yes.

 6                  MS. ALLEN:    Your Honor, I'll offer

 7   Exhibit 31.

 8                  MR. WALDEN:     No objection.

 9                  THE COURT:    Defendant's Exhibit 31 will

10   be received into evidence.

11       Q     (By Ms. Allen)     Mr. Wade, if you were going to

12   come here and just take care of your mom, why didn't you

13   ask her if she would just give you the ranch?

14       A     I didn't feel like that would have been the

15   right thing to do.

16       Q     Did you ever ask her that?

17       A     No, never did.

18       Q     How did you plan to pay for the place at your

19   mom's asking price?

20       A     When my mother said, Meet my price, we already

21   had property in escrow in California and she said, I

22   want $1,000 an acre.   I said, I accept that.    And I was

23   going to pay her cash.

24       Q     Now, we know that didn't end up being a cash

25   deal.   How did that change?


                                                                  8
 1          A   At that point I didn't really get involved in

 2   any of the details.      That was more between Pat Cavness

 3   and I think it was through Lori Graham through the

 4   accounting firm that she was working for at the time.

 5          Q   Did it really matter to you as long as your

 6   mom was satisfied with it?

 7          A   As long as she was satisfied, that pleased me.

 8          Q   Now, it's been discussed in the courtroom over

 9   this week that you were very happy and interested and

10   you sometimes use the word insisted on having Nancy

11   involved in the meetings and whatnot.     Do you remember

12   that?

13          A   Yes, ma'am.

14          Q   Okay.   Why were you interested in keeping

15   Nancy in the loop?

16          A   It was a normal -- she was taking care of

17   mother and assisting mother and I just thought it was

18   the right thing to do.

19          Q   Can you tell us whether you believed that you

20   and she were working together on this project for your

21   mom?

22          A   We were working together on it.

23          Q   Did your mom ask you to notify other people

24   about the deal?

25          A   No.   That was -- she didn't ask and she just


                                                                  9
 1   merely stated that she would take care of that, of

 2   calling other -- the siblings and informing them.

 3          Q      Did you respect her wishes and her decision to

 4   do that?

 5          A      Yes, I did.

 6          Q      To the best of your knowledge did Nancy do the

 7   same?

 8          A      To the best of my knowledge she was involved

 9   in informing others along with mother.

10          Q      Okay.   Now, you talked yesterday just a little

11   bit about what was involved in the transition, the move

12   from California back to Lampasas.       And I don't want to

13   get into great details, but I do want the jury to

14   understand the time that it took and the project that it

15   was.       So can you just give them an understanding about

16   that.

17          A      I had a number of projects that were under

18   construction at the time that required me to be there

19   for approximately the next -- took 10 months for me to

20   wrap up the physical portion of the construction

21   business we had in California.

22          Q      How was your property getting moved --

23   property that you decided to move from California to

24   Lampasas; how was that getting moved?

25          A      We were having trucks to haul it back.


                                                                   10
 1       Q    Who was helping on the scene here in Lampasas

 2   during the time of that transition?

 3       A    When Amanda would come back and would be

 4   assisted with Nancy and Bill on a number of occasions

 5   but Nancy and Bill helped with all of the -- continued

 6   to help with the farm duties and whatever else may need

 7   to be done.

 8       Q    We have seen through Ms. Nancy her invoices

 9   that she sent you.   Did you mind paying and reimbursing

10   her for expenses and things like that?

11       A    No, not at all.

12       Q    We have heard about the room that you and

13   Amanda lived in when you first came her.   Who built the

14   room, by the way?

15       A    I did.

16       Q    When did you do that?

17       A    I started on it probably late 1982 continued

18   into '83 and had to build it on the weekends.

19       Q    Was it in one of those metal buildings that

20   you had built on the property?

21       A    Repeat that, please.

22       Q    Was it in one of the metal buildings that you

23   had built, the room, was it inside one of those?

24       A    Yes.

25       Q    There has been talk about two metal buildings


                                                              11
 1   you built; do you remember that?

 2       A      Yes, ma'am.

 3       Q      Okay.   By the way, when did you build those?

 4       A      Again, the one we call the room was, let's say

 5   it was completed in 1983.    The other shop building was

 6   completed approximately in I believe late '87, possibly

 7   earlier, '88.

 8       Q      Why did you build those on your parents'

 9   place?

10       A      To help make their lives better.

11       Q      Did it appear t you after you got them built

12   and in place, did it appear to you that you accomplished

13   your goal?

14       A      Very much so.

15       Q      When did you start on the construction at the

16   ranch in Lampasas on a real home for you and Amanda?

17       A      I got back in 2005 or it could have been

18   December of 2004, January of 2005, and almost

19   immediately we started plans initially to build a new

20   home.    We met with the design firm to come up with plans

21   and we couldn't quite agree on what we wanted to do.

22   Amanda and I couldn't agree on it.    And so we retracted

23   from that and started this -- I suggested to her that we

24   remodel the old white house and live in that for a

25   period of time until we built another house.    And then


                                                                12
 1   as that plan started we decided to go on and make that

 2   our permanent residence.

 3       Q    So you started on it about, what did you say,

 4   2005?

 5       A    Correct.

 6       Q    Okay.   Were Nancy and Bill coming to the ranch

 7   during that time?

 8       A    Yes, they were.

 9       Q    When they came -- well, first, did they help

10   with the house you and Amanda were building?

11       A    They did.    At this point you have to

12   understand the nature of the house was in such a poor

13   condition that basically it almost had to be

14   disassembled and essentially as I got into it more and

15   more had to be taken down, but they did come and help.

16   So it was -- Bill was much more -- he was smaller than

17   me and accessing underneath the house I couldn't get to

18   some of the areas, so he helped there and a number of

19   different projects in the primary -- preliminary work on

20   the house.

21       Q    How about Bud and Gwen, were they still coming

22   to the ranch?

23       A    They were.

24       Q    When they would come to the ranch did you give

25   them the grand tour, show them what you were doing?


                                                              13
 1       A    They would ask to see and when some of their

 2   children would come up I had built an elevator, goes

 3   down in the basement.    I remember on one occasion the

 4   kids wanted to ride on the elevator up and down, but,

 5   yeah, they would -- it was always a point of interest to

 6   see what -- how things had been progressing along.

 7       Q    How long did it take you to build the home you

 8   live in now; in other words, how long was it that you

 9   and Amanda lived in the room?

10       A    We lived in that room for five years.

11       Q    Would it have made any sense for you to have

12   built the home that you have now on the property if you

13   didn't own it?

14       A    No.

15       Q    Now let me fast forward in time to the time of

16   the loan modification.    So are you with me?

17       A    Yes, ma'am.

18       Q    Okay.   Did you suggest that they loan be

19   modified or changed?

20       A    No.

21       Q    Who did?

22       A    My mother.

23       Q    Did you have conversations with your mom about

24   the idea of changing the loan?

25       A    We had a conversation and she -- she initially


                                                               14
 1   had had a conversation with Amanda that she wanted --

 2       Q       I need to know --

 3                    MR. WALDEN:    Your Honor, I'm going to

 4   object.     This is the heart of the matter and it's about

 5   what Edell Wade said by an interested party.         Dead Man's

 6   statute and hearsay.

 7                    THE COURT:    All right.   I'm going to have

 8   to sustain the objection as far as that conversation

 9   goes, what Amanda and Johnny talked about.

10       Q       (By Ms. Allen)     Based upon whatever

11   conversation you had with your mom, what did you do?

12       A       I took her to Mike Martin's office and since

13   she had suggested to me that she wanted to not pay the

14   interest on the note and that -- see what I could do

15   about it.    So I took her to Mike Martin's office.

16       Q       What happened when you got to Mr. Martin's

17   office?

18       A       I basically got introduced but kind of set the

19   tone as far as with Mike as far as what my mother wanted

20   to do, and at the point that I kind of conveyed her

21   thoughts and kind of -- so that he would understand the

22   situation.    He said, You need to leave the room.

23       Q       Did you?

24       A       I did.     And waited in the lobby until they

25   finished their conversation.


                                                                  15
 1       Q    Did you eavesdrop outside the door?

 2       A    No.

 3       Q    Did you have any further conversations with

 4   Mr. Michael Martin?

 5       A    Not about that, no.

 6       Q    Who was Mr. Martin representing in that

 7   transaction?

 8       A    My mother.

 9       Q    Was there any doubt in your mind about that?

10       A    No.

11       Q    Did you involve yourself in any of this

12   decision making about that?

13       A    No.

14       Q    Did you know what the unpaid balance on the

15   original note was at that time?

16       A    No, ma'am.

17       Q    Did you know what decisions got made behind

18   that closed door about the modification of the loan?

19       A    No, ma'am.

20       Q    Who did you look to or believe would make

21   whatever changes and whatever paperwork there needed to

22   be so that your what your mama wanted to do got done?

23       A    Mike Martin was the one who was representing

24   my mother and I had full confidence that he was taking

25   care of my mother's best interest.


                                                              16
 1         Q   Did it bother you to foot the bill for that?

 2         A   No, not whatsoever.

 3         Q   Did -- setting aside of course the

 4   commencement of this lawsuit after your mom's passing --

 5   but during your mom's lifetime did anybody ever suggest

 6   that the document you guys ended up signing wasn't what

 7   your mom wanted to do?

 8         A   It was -- she never suggested that or anybody

 9   else.

10         Q   You did sign the modification, right?

11         A   Correct.

12         Q   And she signed it, correct?

13         A   Yes.

14         Q   Do you know the circumstances of her signing

15   it?

16         A   I had taken her -- whenever we got notice that

17   the papers were ready I would always, or for the most

18   part, you know, pick her up and drive her to, in this

19   case, drive her to Mike Martin's office.   And we went in

20   on this particular occasion, walked into the office and

21   into the lobby.   There was Ms. Varner, I believe was the

22   one that came to and presented the paper and there were

23   little Sign Here stickets on it.   And I don't know if

24   mother signed first or if I signed first, but I just saw

25   where it said for me to sign and I signed the paper.


                                                               17
 1       Q     So did you do that?

 2       A     I did.

 3       Q     Did you read it?

 4       A     No, I did not.

 5       Q     Did it really matter if it made your mom

 6   happy?

 7       A     It was just a piece of paper to me.

 8       Q     Did you know whether or not that piece of

 9   paper would be recorded in the official records?

10       A     I had no idea.

11       Q     Did it bother you that it might be an official

12   record?

13       A     No, it did not.

14       Q     Now, if you just looked in terms of dollars in

15   your pocket would the elimination of interest all by

16   itself, that is going from the 2 percent to the zero

17   percent, would that end up with you paying less and

18   having dollars in your pocket?

19       A     I understood that is what happened.

20       Q     Did you ever have concern that your mama's not

21   having the 2 percent increment of interest there would

22   put her in a bind?

23       A     It never -- no, that didn't occur to me that

24   it would create any hardship on her.

25       Q     What if it had?


                                                              18
 1       A    If it had I would have taken care of her.            I

 2   would have reinstated or whatever was required.         The

 3   paper didn't matter to me of the care that I was giving

 4   to my mother.

 5       Q    If she needed more money than that, more money

 6   than that 2 percent, would you have given it to her?

 7       A    I would have.       If it meant liquidating the

 8   property I would have liquidated the property to take

 9   care of my mother.   It didn't matter.

10       Q    Did your mom ever indicate that not having

11   that 2 percent interest after June of 2009 put her in a

12   bind?

13                   MR. WALDEN:    Objection, Your Honor.     Dead

14   Man's, hearsay.

15                   THE COURT:    Overruled.

16       You may answer the question.

17       A    Would you repeat the question again?

18       Q    (By Ms. Allen)       Did you have any -- did

19   anything happen to indicate to you that by your mom not

20   having that 2 percent increment of interest there for

21   the months after June, 2009, that that actually put her

22   in a bind; did that ever -- did you ever think that?

23       A    No, I did not.

24       Q    I want to turn now to -- oh, on the day your

25   mom signed the modification was she having any health


                                                                       19
 1   issues that you can recall?

 2          A   No.

 3          Q   Was she any different to you from your

 4   observations in the way that she responded to folks or

 5   conducted herself?

 6          A   Not that I had seen or been aware of.

 7          Q   I want to switch gears now and ask just a

 8   couple of question about this whatever it was that

 9   happened in February 2007 when Nancy came from the bank

10   out to the ranch.    Are you with me about the incident

11   I'm asking?

12          A   Yes, ma'am.

13          Q   Okay.   Is it true that you were not a happy

14   camper?

15          A   I was angry.

16          Q   Why?

17          A   It appeared to me that there was, that what

18   Nancy was doing there at the house with her demeanor it

19   was not something I was -- I would say I didn't approve

20   of it.

21          Q   What is it that Nancy was doing?

22          A   She was argumentative with me whenever I asked

23   what was going on and was being kind of aggressive with

24   mother and not in a physical way but in a dominating

25   way.


                                                               20
 1       Q    Well, if Nancy read your demeanor to say that

 2   she needed to cut that out, did she read you right?

 3       A    Oh, absolutely.

 4       Q    And I need to turn to another topic and it is

 5   the safe deposit box that was in your name and your

 6   mom's name.   Are you with me what I'm talking about?

 7       A    I understand.

 8       Q    Okay.    Did you open that box shortly after

 9   your mom's death?

10       A    I did.

11       Q    Why?

12       A    I don't recall.    I don't remember exactly why.

13   It could ave been to get the will.   I have no

14   explanation or memory of why I opened that box.

15       Q    When you opened the box was there cash in it?

16       A    Yes.

17       Q    What did you do with that cash?

18       A    I left it.

19       Q    All of it?

20       A    All of it.

21       Q    Was there a time when you took it out?

22       A    Yes.

23       Q    When was that?

24       A    When Amanda told me I needed to clear out the

25   safety deposit box.


                                                              21
 1         Q   Was that before or after she was appointed

 2   independent executor?

 3         A   It was after she was appointed.

 4         Q   So Amanda as independent executor asked you to

 5   go and clean out the box?

 6         A   Yes.

 7         Q   Did you do that?

 8         A   I did.

 9         Q   Was there cash in it at that time?

10         A   There was.

11         Q   What did you do with it?

12         A   I put it in a bank bag and took it to her.

13         Q   All of it?

14         A   All of it.

15         Q   Did you deliver that cash to Amanda as

16   independent executor?

17         A   She was independent executor, yes.

18         Q   Did you deliver the cash to her?

19         A   Yes, I did.

20         Q   All of it?

21         A   All of it.

22         Q   Mr. Wade, let me show you Defendant's Exhibit

23   32.   There was a mention either yesterday or the day

24   before, remember we looked at some bank records of yours

25   and Amanda's and it had a deposit for a 30,000 -- hang


                                                               22
 1   on.   We saw a deposit for $30,452.63 into your personal

 2   account right around the first of April, 2009; you

 3   remember that?

 4         A   Yes, ma'am.

 5         Q   And it referenced on that deposit slip an item

 6   number 27020; do you remember we looked at that?

 7         A   Yes, ma'am.

 8         Q   What is Exhibit 32?

 9         A   It's from the Lampasas County Abstract Company

10   for the sale of the property.

11         Q   What item number is that?

12         A   27020.

13         Q   So is it a check stub?

14         A   It appears to be, yes.

15                    MS. ALLEN:    Your Honor, I offer Exhibit

16   32.

17                    THE COURT:    Have you all seen 32?

18                    MR. DUCLOUX:    We gave them a copy.

19                    MR. WALDEN:    No objection.

20                    THE COURT:    Defendant's Exhibit 32 will

21   be received into evidence.

22         Q   (By Ms. Allen)       Mr. Wade, what was this check

23   from the Lampasas County Abstract Company to you and

24   Mrs. Wade; what was that for?

25         A   To sell the property that we had at 215 Landon


                                                                    23
 1   Drive in Lampasas.

 2       Q    Is this the money that was deposited into your

 3   bank account and the deposit slip that Mr. Richie was

 4   talking to Amanda about?

 5       A    It would appear so.

 6       Q    Mr. Wade, are you satisfied that you did the

 7   best that you could for your mom right up until the

 8   moment that she passed away?

 9       A    I am.

10       Q    Was there ever a time when you believed your

11   mom and you were at cross purposes?

12       A    No, never.

13       Q    Setting aside the little things that maybe

14   boys don't always tell their moms, were you truthful

15   with your mom?

16       A    Absolutely.

17       Q    Did you believe that she said what she meant

18   and she meant what she said right up until the time that

19   she could not speak?

20       A    Yes, ma'am.

21       Q    Did you do your level best to be worthy of the

22   trust that she placed i you?

23       A    Yes, ma'am.

24                    MS. ALLEN:   Pass the witness, Your Honor.

25       //////////     NOTHING OMITTED //////


                                                               24
 1                     CROSS EXAMINATION

 2   BY MR. WALDEN:

 3          Q   Good morning, Mr. Wade.    I'm going to start

 4   with just a couple of follow-up questions.      You were

 5   just talking about the safe deposit box and the cash

 6   that was located in it?

 7          A   Yes, sir.

 8          Q   Prior to your mother's death do you recall

 9   when was the last time you accessed the safe deposit

10   box?

11          A   Prior to her death, I do not recall.

12          Q   Had you accessed it at all prior to her death?

13          A   Yes.

14          Q   And do you recall prior to her death when you

15   accessed it seeing this large amount of cash in it?

16          A   There was cash in there, yes, sir.

17          Q   Did you know how much it was?

18          A   No, sir.

19          Q   Do you recall approximately how long before

20   your mother's death it was that you saw that kind of

21   cash in there?

22          A   No.    I couldn't give you a time line of when

23   it was, but I'm thinking if I had to guess it would be

24   somewhere around 2009.

25          Q   Do you know why that amount of cash was in the


                                                                 25
 1   safe deposit box?

 2       A    My mother wanted to put it in there.

 3       Q    Do you know when it was placed in the safe

 4   deposit box?

 5       A    The date, no I do not.

 6       Q    Was it like your mother to have $80,000 in

 7   cash in bills in a safe deposit box as opposed to being

 8   invested somewhere?

 9       A    I don't know that.   I can't speak for her as

10   far as exactly what her purposes were.

11       Q    Do you know where it came from?

12       A    One of them was -- part of it was a $40,000

13   withdrawal from I believe her money market account.

14       Q    Is that -- do you know any more than that?

15       A    (No audible response.)

16       Q    That would account for half of that, correct?

17       A    Correct.

18       Q    Do you know where the other 40,000 came from?

19       A    I don't have a recollection of where it came

20   from.

21       Q    When was it that your mother ceased being able

22   to drive a vehicle?

23       A    I don't recall exactly.   I would have to say

24   -- she gave me the keys, and I want to say it was in

25   2009.


                                                              26
 1       Q    The $40,000 withdrawal from the money market

 2   account that you just testified about, were you with her

 3   when she withdrew that $40,000?

 4       A    I believe so.

 5       Q    You had to drive her to the bank probably?

 6       A    Yes.

 7       Q    Were you with her when she put it in the safe

 8   deposit box?

 9       A    Yes, sir.

10       Q    You don't have an opinion on what the purpose

11   of having that kind of cash not in an account would be?

12       A    I'd have to speculate.

13       Q    And I don't want you to speculate.     But you're

14   telling the jury that you don't have any idea besides

15   speculation?

16       A    I would -- at this point it would be

17   speculation.

18       Q    Were you -- I'm sorry.   I asked you a while

19   ago and I can't remember exactly what your answer was.

20   Were you with your mother when you placed the $40,000 in

21   the safe deposit box?

22       A    Yes, sir.

23       Q    When she did or you did for her, was the other

24   $40,000 already in there?

25       A    I don't recall.


                                                              27
 1       Q      Was there any -- do you recall seeing any

 2   cash?

 3       A      At that time?    I don't recall.

 4       Q      Well, if there was $40,000 in cash, it would

 5   catch your attention; wouldn't it?

 6       A      I know that -- I don't recall exactly the time

 7   line as far as if there were cash in there before.      I

 8   don't remember.   There was a total accumulation of

 9   $80,000.   If it was there before, I don't remember.

10       Q      I think your testimony is then when you were

11   with your mother when she put, or you put it in for her,

12   the $40,000 she withdrew from a money market account

13   into her safe deposit box, you don't know whether the

14   other 40,000 was already in the safe deposit box at that

15   time?

16       A      I didn't put it in there for her.

17       Q      Oh, you said you were present, correct?

18                  MS. ALLEN:     He said he drove her there

19   was the testimony, Your Honor.

20       Q      (By Mr. Walden)    What size box was it?

21       A      Approximately I would say four inches tall,

22   five inches wide, 14 inches long.

23       Q      Did you observe your mother place the $40,000

24   in the safe deposit box?

25       A      Yes, I did.     I mean, but as far as the amount


                                                                   28
 1   I don't know exactly what the amount was.     She had

 2   withdrawn that, so I did not count the money.      They

 3   counted it for her.

 4       Q      In terms of -- I want to go back to what you

 5   were aware of was already in the box.

 6                  MS. ALLEN:    He said he didn't know, Your

 7   Honor.

 8                  THE COURT:    This is cross examination,

 9   counsel.

10       Q      (By Mr. Walden)   You don't know whether there

11   was any other cash in the box at that time?

12       A      No, I do not.

13       Q      After that time was your mother able to drive

14   again or did she drive a vehicle again?

15       A      Only to -- I guess -- I don't recall.    It

16   would only have been to the mailbox.

17       Q      It's likely, isn't it, that the other $40,000

18   was in the box at the time, correct?

19       A      I can't make that assumption.

20       Q      Did you ever go with her to the safe deposit

21   box again before her death?

22       A      I don't recall how many times the safe deposit

23   box was accessed.

24       Q      My question exactly was whether you went with

25   her again?


                                                                 29
 1          A      Yes, I did.

 2          Q      After that time?

 3          A      After what time?

 4          Q      After the time she deposited the $40,000 that

 5   we've been talking about and prior to her death?

 6          A      I don't know what the dates were, no, sir.

 7          Q      Well, that wasn't exactly what my question

 8   was.       Do you have a memory of whether after that time,

 9   do you have a feel for when that was about, do you have

10   any memory of going with your mother again to the safe

11   deposit box after she placed the $40,000 into it?

12          A      I don't recall the time line.   I don't recall

13   dates.       But as far as -- it was possible that it was

14   after.

15          Q      And just to make sure, you don't know where

16   the other $40,000 in the safe deposit box came from?

17          A      No idea.

18          Q      You previously told me that prior to the time

19   you and Amanda moved back to Lampasas that you had a

20   good relationship with my client, Nancy Burns, correct?

21          A      That's what I said at the time, yes.

22          Q      Did you also have good relationships with your

23   other brothers and sisters at that time?

24          A      There was a relationship of -- apparently it

25   was as my brother had stated earlier a tolerable


                                                                    30
 1   relationship.

 2       Q      Are you referring to Bud Wade?

 3       A      Yes, I am.

 4       Q      You have been in the courtroom the entire time

 5   of the trial, correct, and you've heard everybody

 6   testify?

 7       A      Yes.

 8       Q      Isn't it true that when people are talking

 9   about claims about your mother's sale of the ranch to

10   you there hasn't been any testimony, at least that I can

11   recall, about the fact that it as sold to you.    Rather

12   it's been more about the manner in which it was sold and

13   the price for which it was sold.    Do you agree with

14   that?

15       A      That was a lengthy question, but --

16       Q      Have you heard anybody say that mom should

17   have never sold the ranch to Johnny, period, under any

18   circumstances for any amount?

19       A      Have I heard that before?

20       Q      In testimony during this trial?

21       A      No, I have not.

22       Q      The complaints that have been voiced have been

23   more about the way the transaction took place and the

24   amount of the price; isn't that correct?

25       A      I would agree to that.


                                                                31
 1          Q      And in fact at least a couple of witnesses

 2   have testified that they were glad to hear that the

 3   property would remain in the family, correct?

 4          A      That's what I understood and heard, yes, sir.

 5          Q      So it wasn't the fact that you were the buyer

 6   that bothered anybody; would you agree with that?

 7                      MS. ALLEN:    Objection, Your Honor.    That

 8   calls for him to speculate about what these folks were

 9   bothered about.

10                      MR. WALDEN:    Well, I mean what they

11   testified about.

12                      THE COURT:    I'm going to overrule your

13   objection.

14          You may answer the question.

15          A      I don't know that -- repeat the question

16   again.

17          Q      (By Mr. Walden)    Let me ask it a different

18   way.       Nancy has stated she was glad to know the property

19   would remain in the family, right?

20          A      She did.

21          Q      And so did Sue, correct?

22          A      She has, yes.

23          Q      And did Bud also say that?    He did; didn't he?

24          A      I don't believe he did.

25          Q      Did you ever tell Bud back in the 1990s that


                                                                       32
 1   you wanted to buy the ranch one day?

 2       A    He stated that, but I don't recall the

 3   conversation.

 4       Q    You're not denying it?

 5       A    I can't say one way or the other.

 6       Q    Now as a -- when the time came in the fall of

 7   2004 when you first had some discussions about you were

 8   first thinking of moving to Lampasas and possibly buying

 9   the ranch, it's true, isn't it, that had you not been

10   able to purchase or acquire the ranch from your mother

11   you wouldn't have moved back to Lampasas, correct?

12       A    That wasn't -- the purchase of the property

13   was not -- that wasn't the condition.

14       Q    And you heard your wife testify earlier in the

15   week, correct?

16       A    I heard the deposition.

17       Q    Didn't you hear her -- well, in the deposition

18   she told the truth; didn't she?

19       A    I haven't read it so I don't know what context

20   it was taken from.

21       Q    But you heard her say, didn't you, that we

22   wouldn't have moved to Lampasas if we were not able to

23   buy the ranch?

24                    MS. ALLEN:   Objection, Your Honor.   That

25   is a mischaracterization of the testimony.


                                                                   33
 1                   MR. WALDEN:    It's exactly what she said.

 2                   THE COURT:    Overruled.   The jury was

 3   here.   They heard the testimony.

 4       Q     (By Mr. Walden)     Isn't that the substance?

 5   Maybe I didn't get "and" or "the" correct, but isn't

 6   that the substance of what she said?

 7       A     That's basically what your take on the context

 8   of it, I suppose.     I wasn't there.   I wasn't in that

 9   deposition.   I didn't hear what she said.

10       Q     You were in the trial though when she

11   testified and she acknowledged that's what she said.

12   You were sitting on the first or second row here; is

13   that correct?

14       A     Correct.

15       Q     And isn't that what she said?

16       A     I don't know what she said in the deposition.

17       Q     My question is what she said in the trial a

18   couple of days ago.     She acknowledged that she testified

19   in deposition that:     Let me put it this way, I wouldn't

20   have moved back to Lampasas if we hadn't been able to

21   get the property.

22       That's what she said.      She said that in trial a

23   couple of days ago?

24       A     Yes, sir.

25       Q     And you weren't going to divorce your wife to


                                                                  34
 1   come back and take care of your mother if the property

 2   sale wasn't part of the bargain?

 3        A     No.

 4        Q     Now, when you said -- you testified when Ms.

 5   Allen was asking you questions about you wouldn't have

 6   accepted a gift of the property because -- this may not

 7   be verbatim -- you didn't think that would have been

 8   right; is that right?

 9        A     Correct.

10        Q     And would that be because it would not be

11   right because you might think it is taking advantage of

12   your mother?

13        A     No.   I wouldn't say that's taking advantage of

14   my mother.

15        Q     Well, why -- tell me why you wouldn't think

16   that would be right?

17        A     It just wouldn't -- it didn't seem like that

18   would be the thing to do, and that's a speculation but

19   --

20        Q     Well, and my question is why you didn't think

21   that would be the thing to do?

22        A     It just wasn't characteristic of me, I

23   suppose.

24        Q     I'm sorry.   Could you say that again.

25        A     It wasn't characteristic of me just to take,


                                                                35
 1   you know, it never entered my mind.

 2       Q     When leading up to the time that the

 3   transaction took place you never communicated with --

 4   other than the communications you had with Nancy -- any

 5   of your other siblings about, Hey, I'm talking to mom

 6   about buying the ranch.   Anything like that?

 7       A     With Emma.

 8       Q     With Emma.   Was she the only other one?

 9       A     I believe so.

10       Q     Why Emma and not Bud or Sue or Charlene or

11   Weldon?

12       A     I didn't -- the initial part was I didn't know

13   that she would sell it.

14       Q     Once it appeared that you all were going to

15   make the transaction happen and it did appear that she

16   was selling it, why not then?

17       A     she had requested that she make the

18   announcement.

19       Q     Do you recall when I asked you about this

20   before, I asked you why there wasn't communication made

21   to your siblings?

22       A     When?

23       Q     During the time I took your deposition in this

24   case, correct?

25       A     You took my deposition, yes.


                                                              36
 1       Q    It has been a while, August 4th, 2011?

 2       A    Yes, sir.

 3       Q    And you were aware that you were under oath in

 4   that deposition?

 5       A    Yes, sir.

 6       Q    Do you recall when I asked you that question

 7   in your deposition?

 8       A    Not -- no, I don't necessarily recall.     If you

 9   want to show me.

10                  MR. WALDEN:    May I approach, Your Honor?

11                  THE COURT:    You may.

12       Q    (By Mr. Walden)     I'm going to direct your

13   attention to page 16 beginning on line 19, and, Mr.

14   Wade, the highlighted portion I asked you the question:

15   Did you communicate with any of your siblings about this

16   transaction during the time it was taking place or

17   leading up to it?

18       And your answer was?

19       A    No.

20       Q    Can I ask any particular reason?

21       And your answer was?

22       A    My mother stated it was her money that she --

23   her money and place and she could do what she pleased.

24       Q    So you didn't tell me at the time that your

25   mother asked you to not tell anybody, correct?


                                                                 37
 1       A     I didn't say that at the time, no, sir.

 2       Q     Okay.   And then the next question is at the

 3   top of page 17.   I asked you:   Well, that being so do

 4   you think it's something that any of your siblings might

 5   have just been interested in knowing about?

 6       And your answer was?

 7       A     I don't know.

 8       Q     This was your family homestead that you all

 9   grew up on, correct?

10       A     Correct.

11       Q     And is that your testimony still today that

12   you don't know whether they would have been interested

13   or not in knowing about that?

14       A     Well, If I said anything different it would

15   contradict my statement then.

16       Q     Well, you still have to answer the question

17   though.   Do you still -- are you telling the jury today

18   that you still don't know whether they might have been

19   interested in knowing about a transaction involving the

20   family homestead by their elderly mother?

21       A     Well, that's been four years and it's obvious

22   that they did have a concern or issue with me buying it,

23   and that's why I'm sitting here now.

24       Q     Do you still believe on August 4th, 2011 when

25   your deposition was taken that you really didn't know at


                                                               38
 1   the time whether they would have been interested in

 2   that?

 3       A    That was my statement at the time.

 4       Q    Wouldn't most anybody be interested in their

 5   80-something year old elderly widowed mother talking

 6   about disposing of the family homestead?

 7       A    Repeat that.    I'm not following you.

 8       Q    Wouldn't most anybody be interested in knowing

 9   about a plan under which their 80-something year old

10   elderly widowed mother is going to dispose of the family

11   homestead?

12       A    Well, as far as -- that may or may not be the

13   case.

14       Q    And your real concern was if they all found

15   out about it they might tell their mother it wasn't a

16   good idea?

17       A    She told them if they had a problem they

18   should have said something then I suppose.

19       Q    Let me be clear.    Not that selling to you

20   might not have been a good idea, but they might have

21   suggested things like to get an appraisal and to make

22   sure this is for the proper amount.   That's a real

23   possibility; isn't it?

24       A    I suppose.

25       Q    And you heard Nancy testify that she suggested


                                                              39
 1   to you after the meeting with Mr. Cavness to write a

 2   letter to let everybody know what's going on, and that

 3   you said no, because it wouldn't happen.    Do you

 4   remember that testimony?

 5       A       I remember the testimony.

 6       Q       And it's true that you would be concerned if

 7   they had all found out in advance and been able to talk

 8   to their mother about it that it might not have happened

 9   the way it did, correct; that's what the concern was?

10       A       I can't --

11       Q       You're saying that -- your testimony is that

12   had you notified all of your siblings in advance you

13   might not have -- you still would have been able to buy

14   it for $500,000?

15       A       That's an assumption, so I don't know.

16       Q       You've owned a number of rental properties in

17   your day; haven't you?

18       A       Define "a number".

19       Q       Well, I didn't have anything particular in

20   mind, but you own -- how many do you own right now in

21   Lampasas?

22       A       I think there may be five.

23       Q       And you owned one or more when you lived in

24   California?

25       A       We had two rental properties.


                                                                 40
 1         Q     And when you buy a rental property you're

 2   buying just an investment asset, correct, something that

 3   you hope will appreciate in value and produce income?

 4         A     I don't buy it for a negative.    Not to lose

 5   money.

 6         Q     Buying it just helps you better your financial

 7   position?

 8         A     Correct.

 9         Q     And if I were to ask you if you wanted to buy

10   a particular rental property and you had an idea what

11   you thought it was worth, say you thought it was worth

12   $200,000 and the seller of it told you, I'll sell it to

13   you for $175,000.      You jump on that; don't you?

14         A     I don't know that I'd jump on it.

15         Q     If you wanted to buy it?

16         A     If I wanted to buy it.

17         Q     Well, I'm assuming you wanted to buy it, you

18   could pay $200,000 and the seller comes to you and says,

19   I need to sell this thing and I will sell it to you for

20   $175,000.    You don't tell that guy, I think it's worth

21   more than that.     Let's get it appraised.   You don't tell

22   that guy that.    You take him up on his offer, right?

23   You jump on it.

24         Q     Well, I don't know what you mean by jumping on

25   it.


                                                                 41
 1       Q     I mean you accept his offer immediately before

 2   he changes his mind.     That's what I would do; isn't that

 3   what you would do?

 4       A     I don't do what you do.

 5       Q     I understand.    But isn't that what you would

 6   do in that situation?

 7       A     I would have to evaluate it.    You would have

 8   to be more specific.     Money is not a motivation for me.

 9       Q     Well, I'm asking about this situation where

10   here is a rent house that you want to purchase and you

11   think you can pay $200,000 for it and you're willing to

12   pay $200,000 for it, and the owner of it says, I really

13   need to sel this thing quickly, I need the cash, I'll

14   give it to you for -- before he knows what you would pay

15   for it.   He doesn't know.    You're smart and you haven't

16   told him what you would pay for it.     He says, I'll give

17   it to you for 175,000.     Wouldn't you accept that offer

18   pretty quickly?

19       A     There is more -- you're putting it just in the

20   context of money and I would have to look at what the

21   situation may be, the relationship to the property or

22   what it may entail, you know, if somebody were to for

23   instance to say -- I mean, hypothetical says, I will

24   give you the property, just let me live there and take

25   care of me.   Then I might in a hypothetical do that.


                                                                 42
 1          Q   Well, I thought the situation, the

 2   hypothetical I gave you was pretty simple.      Are you

 3   telling the jury you can't answer the question I asked

 4   you?

 5          A   In a hypothetical situation from a monetary

 6   level somebody wants -- if the house is worth 200,000

 7   then that's agreeable.     It may be that if they change

 8   their mind and want more then I may pay more.

 9          Q   In the business world when somebody offers you

10   what you believe to be a good deal, say the purchase of

11   a rental property, you don't tell that guy, You're not

12   getting your money's worth, you need to sell it to me

13   for more than that.     I assume you wouldn't do that;

14   would you?

15          A   Depends on the circumstances.

16          Q   If this is just some stranger that a realtor

17   turns you onto that wants to sell this house real bad.

18          A   Okay.

19          Q   You're not going to tell him, You're not

20   getting a good enough deal, I'm going to give you 200

21   instead of 175.

22          A   If it was through a realtor then anybody -- it

23   would be open for anybody's purchase ability.

24          Q   And I didn't ask about anybody else's

25   purchasing it.     I asked about you purchasing it.   You


                                                                 43
 1   don't tell the guy, I'm going to give you more because I

 2   want to make sure you get a fair value for this

 3   property.      You don't tell that guy that; do you?

 4          A      You're kind of putting words in my mouth

 5   here.

 6          Q      Well, I'm asking you --

 7          A      You don't know what I may say or may not say.

 8          Q      I'm not asking you whether you would say that.

 9   I'm assuming that you would.

10          A      You're making an assumption, so I don't know.

11          Q      You don't know whether if you wanted to buy a

12   rent house and you were prepared to pay $200,000 for it

13   and some stranger told you, I need to sell this house

14   and I heard you wanted to buy it, I don't know what you

15   would pay for it, Mr. Wade, but I'll sell it to you for

16   175.       Are you telling the jury here that you don't know

17   what you would do under that circumstance?

18          A      If I --

19          Q      And you're prepared to pay 200 for it.

20          A      If I wanted the house?

21          Q      Yes.

22          A      I suppose I would buy it.

23          Q      That's the business world dealing with a

24   stranger, getting the best deal you can on some

25   investment asset.       Wouldn't you agree that the way you


                                                                   44
 1   handled transactions in that context is a lot different

 2   than the way you handle transactions with your mother?

 3       A    Yes.

 4       Q    Especially an elderly widow mother who has six

 5   other children, correct, and we're talking about the

 6   family homestead; isn't that right?

 7       A    I suppose, yes.

 8       Q    You could have, couldn't you, told your

 9   mother, I'm going to buy this property mom, but I want

10   to make sure I give you full value for it so why don't

11   we get an appraiser.   And that would have been an

12   option, correct?

13       A    She already set the price.

14       Q    And I understand what your testimony is.     But

15   my question is you could have said, Mom, I want to make

16   sure I'm giving you full value for it and it may be

17   worth more than that, I don't know, but why don't we get

18   an appraisal.   You could have said that, right?

19       A    I could have.

20       Q    And you didn't, right?

21       A    No, I didn't.

22       Q    You could have also said, Mom, this is the

23   family homestead, I will buy it from you but I want it

24   to be okay with all my brothers and sisters, I want them

25   to know about it and be okay with it.   You could have


                                                                 45
 1   said that too, right.     So I'll do it only if it's okay

 2   with everybody else.

 3       A      I suppose I could have said that.

 4       Q      But that didn't happen either, correct?

 5       A      No.   Everything your client sitting behind you

 6   was present at that time.

 7       Q      Was Bud Wade there?

 8       A      No.

 9       Q      Was Sue Meuth there?

10       A      No.

11       Q      Was Weldon there?

12       A      No.

13       Q      Was Charlene there?

14       A      No.

15       Q      My client --   and I recognize Nancy Burns was

16   present in the meeting with Mr. Cavness.     At that

17   meeting was the fact that there would be a 32 year

18   payment stream discussed in the presence of my client?

19       A       I have no idea.

20       Q      Or the fact that there would be no down

21   payment?

22       A      I wasn't involved in any of the details.

23       Q      Your mother helped y'all out financially after

24   you moved here, right?

25       A      Pardon?


                                                                 46
 1       Q    Did your mother help you out financially after

 2   you moved here, setting aside that I'm not referring to

 3   the transaction itself but in other ways.   She paid

 4   electric bills for you, other things like that?

 5       A    I don't know.

 6                 MR. WALDEN:    If I may approach, Your

 7   Honor.

 8                 THE COURT:    You may.

 9       Q    (By Mr. Walden)    Mr. Wade, I'm going to show

10   you a copy of some checks that were produced in this

11   matter and I ask you to take a look at that.    My

12   question is going to be, first, are those checks that

13   are written off of your mother's bank account?

14       A    Appear to be.

15       Q    Is that your mother's signature on it?

16       A    Yes, sir.

17       Q    And I'm going to direct your attention to the

18   check in the top right hand corner and in the bottom

19   right hand corner.   Isn't it true that each of those

20   checks is to Pedernales Electric Cooperative?

21       A    Yes, sir.

22       Q    And each is for an amount in excess of $300?

23       A    Yes, sir.

24       Q    And in the memo portion of each check in the

25   lower left hand corner of the check different account


                                                               47
 1   numbers are referenced on those checks; is that correct?

 2       A     That is correct.

 3       Q     And tell the jury what the dates of those two

 4   checks are.

 5       A     One is September 2nd, '08.    One is September

 6   9, '08.

 7       Q     Thank you.

 8                 MR. WALDEN:     I'll move for the admission

 9   of Plaintiff's 102.

10                 MS. ALLEN:     No objection, Your Honor.

11                 THE COURT:     Plaintiff's 102 will be

12   received into evidence.

13       Q     (By Mr. Walden)    It appears that your mother

14   is paying your electric bill, correct?

15       A     I don't know that for a fact.

16       Q     She didn't have two accounts in her name at

17   her residence; did she?

18       A     I didn't take care of that.    Amanda -- if it

19   was an issue -- I didn't take care of it, so there could

20   have been a reimbursement.

21       Q     To the best of your knowledge did you mother

22   just have one account for her electric service with

23   Pedernales Electric Cooperative?

24       A     I don't know.

25       Q     You don't know?


                                                                 48
 1       A       No, sir.

 2       Q       Do you know what the square footage of her

 3   house is?

 4       A       Approximately a thousand square feet.

 5       Q       A thousand?

 6       A       Yes, sir.

 7       Q       Well, it wouldn't have cost $600, in excess of

 8   $600 a month to cool a thousand square feet; would it?

 9       A       I don't know what the -- I don't know.

10                   MR. WALDEN:    If I may approach, Your

11   Honor?

12                   THE COURT:    You may.

13       Q       (By Mr. Walden)   Let me show you what's been

14   marked as Plaintiff's 103.

15       A       Okay.

16       Q       And are those checks off your mother's account

17   again?

18       A       They appear to be, yes, sir.

19       Q       Is the one in the left hand column, the third

20   one down, that's another check to Pedernales Electric

21   Cooperative, and it's in an amount of $720, correct?

22       A       Correct.

23       Q       And it's dated during the month of February;

24   isn't it?

25       A       It is.


                                                                 49
 1       Q      $700 was a lot more that it would have cost to

 2   heat or cool a 1,000 square foot residence; isn't it?

 3       A      I'm sure it would be.

 4       Q      The check in the top left hand corner is a

 5   check that looks like it's made out to Amanda Wade,

 6   correct?

 7       A      That's right.

 8       Q      And actually it's on Edell's account, your

 9   mother's account, and it's also signed by your wife,

10   correct?

11       A      That's correct.

12       Q      In an amount of over a thousand dollars,

13   correct?

14       A      Correct.

15       Q      And the notes written on it refer to gas and

16   electric, correct?

17       A      That's correct.

18       Q      And it's made out to your wife?

19       A      Yes.

20       Q      Do you know what that transaction was for?

21       A      No idea.

22                     MR. WALDEN:    I'll move for the admission

23   of Plaintiff's 103.

24                     MS. ALLEN:    No objection, Your Honor.

25                     THE COURT:    All right.   Plaintiff's


                                                                    50
 1   Exhibit 1103 will be received into evidence.

 2                    MR. RICHIE:    It's 103, Your Honor.

 3                    THE COURT:    103 will be received into

 4   evidence.

 5                    MR. WALDEN:    May I publish these two to

 6   the jury?

 7                    THE COURT:    You may.

 8       Q       (By Mr. Walden)    Mr. Wade, do you recall the

 9   testimony that has been presented in Court about a

10   meeting between you and Michael Martin in December of

11   2007 regarding your mother's affairs?

12       A       You will have to refresh my memory.

13       Q       And there was an entry on Mr. Martin's work

14   order from December in your mother's file for December

15   of 2007 is what I'm referring to.         I'll hand you Mr.

16   Martin's file.    In particular the work order, and just

17   direct your attention to the bottom entry on it.         Isn't

18   it true that he refers to an office conference with you?

19       A       Correct.

20       Q       What date does he indicate?

21       A       At the very bottom?

22       Q       Yes, sir.

23       A       12-28-07.

24       Q       So December 28, 2007.    That's your mother's

25   file from Martin, correct?


                                                                   51
 1       A      Appears to be so, yes, sir.

 2       Q      Can you tell the jury what the purpose of that

 3   meeting was?

 4       A      I don't recall.

 5       Q      Do you recall going to Mr. Martin's office

 6   right after Christmas during that year --

 7       A      No, sir.

 8       Q      -- to talk about your mother's matters?

 9       A      No, sir.

10                   THE COURT:    We've been going a little

11   over an hour.   We'll go ahead and give the jury their

12   first break this morning.     We'll be in recess for 10

13   minutes.

14                          (A break ensued.)

15                          (Jury present.)

16       Q      (By Mr. Walden)    Mr. Wade, it's true isn't it

17   that after you and Amanda moved back to Lampasas that

18   sometimes when you would leave town you would call

19   people to help out in the looking after of your mother

20   and running errands for her?

21       A      Correct.

22       Q      And is Mr. Harrison who testified yesterday

23   one of those people?

24       A      Yes, sir.

25       Q      Were there any others that you called outside


                                                                  52
 1   the family?

 2       A      Debbie Sloan also testified yesterday.

 3       Q      And you chose -- it was your decision wasn't

 4   it to call these individuals outside the family instead

 5   of calling for example my client, Nancy Burns?

 6       A      Correct.

 7       Q      And isn't it true that the reason you chose to

 8   call these people instead of Nancy was simply because of

 9   your bad relationship with Nancy rather than anything

10   your mother wanted?

11       A      That would be -- my mother's needs were

12   minimal, but, yes, just because of the estranged

13   relationship.

14       Q      So it didn't have anything to do with your

15   mother's wants, but you didn't want to call -- Nancy is

16   your mother's daughter, as you know, and you didn't want

17   to call Nancy because you didn't like Nancy; is that

18   correct?

19       A      There was a estranged -- there was a rift

20   between us, yes.

21       Q      That doesn't mean Nancy can't still come help

22   out her mother, right?

23       A      She was never stopped.   She could come at any

24   time.

25       Q      Well, don't you think she might have ben the


                                                                 53
 1   one who was asked to come in and look out and help out.

 2   She might not have known you were going out of town.

 3       A    It's possible.

 4       Q    Don't you think that damaged Nancy's

 5   relationship with her mother?

 6       A    I can't answer that.

 7       Q    Maybe, maybe not?

 8       A    I have no answer to that.

 9       Q    Did you tell your mother for example:   Chris

10   Harrison is going to come look after you because I'm not

11   telling nancy that we're leaving?

12       A    Did I tell her that?

13       Q    Yes.

14       A    I did tell her that Chris and his wife would

15   come by and Chris took care of my -- saw after and

16   looked after the farm animals, and his wife would check

17   in on my mother.

18       Q    These were all things that Nancy was capable

19   of doing and in fact had done for a decade and a half

20   before, right?

21       A    That's correct.

22       Q    Just so that the jury understands clearly,

23   this is not because of any concern for your mother.

24   It's because you didn't like Nancy?

25       A    Mother could have -- she didn't have any


                                                              54
 1   problem with anybody else coming out there.

 2         Q   I'm going to ask you a few questions about the

 3   modification.    Isn't it true that you could have said,

 4   when the modification was discussed, Mom, I'm going to

 5   pay you everything that I agreed to pay you for?

 6         A   I could have.

 7         Q   And that wasn't done; was it?

 8         A   No, sir.

 9         Q   And Ms. Allen asked you whether any of your

10   siblings complained about the modification and you said

11   no.   Correct?

12         A   I don't know if they did or not.

13         Q   They didn't know about it until after your

14   mother had passed away, correct?

15         A   I don't know if they did or not.

16         Q   To your knowledge did any of your siblings

17   know about it prior to your mother's death?

18         A   Do I know if they knew about it?

19         Q   Yes.

20         A   I don't know who knew about it.

21         Q   Did you tell anybody?

22         A   No.

23         Q   By that time your mother was how old?

24         A   What year?

25         Q   When the modification was done which was in


                                                                55
 1   2009, spring of 2009.   She was 94, right?

 2         A   Yes.

 3         Q   Do you think that is something the rest of her

 4   children might have wanted to know about?

 5         A   Perhaps.

 6         Q   By then family relationship were pretty

 7   damaged, correct?

 8         A   Correct.

 9         Q   Did it occur to you at the time that this

10   might just make things worse when people found out about

11   it?

12         A   I don't know that I thought about it.

13         Q   Did you think about whether or not it was fair

14   to your mother?

15         A   I don't know that I took that into

16   consideration because it was her idea.

17         Q   You have heard a lot of testimony about the

18   modification instrument, and the actual number that is

19   on it reflects the unpaid principal balance at the time.

20   Do you recall what that number is?

21         A   No, sir, I do not.

22         Q   If I represent to you it's $227,528 does that

23   sound about right?

24         A   I wouldn't have any idea.

25         Q   You're aware aren't you that the loan


                                                               56
 1   modification has been one of the major issues that has

 2   been raised in this lawsuit, correct?

 3       A    Correct.

 4       Q    And this lawsuit has been going on for a long

 5   time; hasn't it?

 6       A    Correct.

 7       Q    And you're telling the jury -- and one of the

 8   issues with the modification is the amount of the

 9   principal balance that is reflected on the modification;

10   is that correct?

11       A    That's what I understand, yes, sir.

12       Q    And your testimony to the jury is you don't

13   have any idea what that balance is?

14       A    What the number is, no, sir.

15       Q    That is your testimony, correct?   That is true

16   that that's what you're telling the jury; you have no

17   idea what that number is as we sit here today?

18       A    If I had to -- I don't know.   There's too many

19   numbers that have been hashed around, and your balance

20   has been one.   I've heard too many different numbers.

21   So if you're asking me which number, whose camp, I just

22   can't -- I don't know.

23       Q    Well, my question is specifically can you tell

24   the jury today what number is in this modification

25   instrument that Michael Martin prepared that has really


                                                              57
 1   been at the heart of this matter for a long, long time.

 2   Are you telling them you don't have any idea what that

 3   is?   Not what I said.   Not what Ms. Allen said.    Not

 4   what Ms. Clark said.     But what is in the instrument that

 5   you signed?

 6         A     I don't know what the number is, no, sir.

 7         Q     Well, let me -- I'm just going to -- I'm

 8   showing you an exhibit from your deposition.     It's the

 9   modification agreement.

10         A     Correct.

11         Q     Unpaid principal and interest on note,

12   $227,528.    Did I read that correctly?

13         A     Yes, sir.

14         Q     As we sit here today do you have any idea how

15   this number was reached?

16         A     No, sir.

17         Q     You heard Michael Martin say he didn't know

18   how it was reached, correct?

19         A     That's what he stated, yes, sir.

20         Q     And your wife said she didn't know how it was

21   reached?

22         A     That's correct.

23         Q     And Lori Graham said she didn't know how it

24   was reached?

25         A     I suppose.


                                                                 58
 1       Q    Your 94 year old mother didn't sit there with

 2   a calculator and an amortization schedule and come up

 3   with this number; did she?

 4       A    No, I'm sure she didn't.

 5       Q    Somebody had to.    That's not a round number;

 6   is it?

 7       A    No, sir.

 8       Q    Somebody had to do some math to get to that?

 9       A    It didn't just appear.

10       Q    You have no idea how that was reached?

11       A    No, sir.

12       Q    When that modification was signed you

13   testified earlier this morning that you and your mother

14   went to Mr. Martin's office to sign it?

15       A    I took my mother there, yes, sir.

16       Q    And did -- Diane Varner was the notary?

17       A    I believe.

18       Q    Did she notarize the instrument while you were

19   there?

20       A    I'm not -- I don't know if it was Diane that

21   notarized it, but it was notarized, yes, sir.

22       Q    In your presence?

23       A    Yes, sir.

24       Q    Had Amanda already signed it when you and your

25   mother were there?


                                                               59
 1         A     I have no idea.   I don't recall.

 2         Q     She was not there with you all though,

 3   correct?

 4         A     No, sir.

 5         Q     You heard some testimony about there was some

 6   sort of air travel from the hospital back to your

 7   mother's house to transport her back for her final hours

 8   or days; is that correct?

 9         A     That's correct.

10         Q     A helicopter.   Did you consult with any of

11   your siblings, any of Edell's -- any of your mother's

12   other children about how her final hours and days would

13   be spent?

14         A     I don't know who all was consulted, but I

15   didn't.

16         Q     Do you think it would have been a good idea

17   to?

18         A     I don't know who was consulted and whether or

19   not they were.

20         Q     Now, you and Amanda and nobody else planned

21   your mother's funeral, correct?

22         A     I don't know that to be true.

23         Q     And you participated in the planning of your

24   mother's funeral; didn't you?

25         A     Correct.


                                                                 60
 1       Q      Who else was with you planning it?

 2       A      If I had to -- if I were going back in memory

 3   or if I'm going back to my memory that most of that was

 4   probably Amanda and myself.

 5       Q      You deliberately decided to not involve any of

 6   your siblings in the planning of your mother's funeral,

 7   correct?

 8       A      I don't know that it was deliberate.

 9       Q      You don't know if it was deliberate?      You

10   didn't call anybody and say, Let's put things aside and

11   do this for mom, plan a nice service for mom.        You

12   didn't do that; did you?

13       A      It was a nice service.    I wasn't involved in

14   all the details.

15       Q      Well, let me remind you of what we talked

16   about before.   And I'm going to start -- this is your

17   deposition, sir.      I direct your attention to the first

18   highlighted portion.      This is page 41, line 5.    And I

19   asked you:   Okay.     Who was it that planned your mother's

20   funeral?

21       And your answer was?

22       A      My wife.

23       Q      And I asked you:    And you didn't involve any

24   of your other siblings in that?

25       And your answer was?


                                                                   61
 1       A     No.

 2       Q     And I'm skipping down to line 20, page 41.

 3   And I asked you:   Your mother had passed away and you're

 4   planning a funeral and you didn't, I guess you didn't

 5   feel like maybe it's time just to -- to just talk to

 6   everybody at this time and see what we can all do

 7   together in the best interest of your mother.   That

 8   wasn't the way you felt about it; was it?

 9       And your answer was?

10       A     No.

11       Q     And I asked you then:   You thought the only

12   way to take care of your mother's best interest was to

13   exclude all of our other siblings?

14       And your answer was?

15       A     Yes.

16       Q     Mr. Wade, I think you testified yesterday that

17   part of what prompted you to move here was the power

18   outage that was prompted by a freeze at your mother's

19   place?

20       A     That's right.

21       Q     Do you recall when that was?

22       A     No, I do not.

23       Q     Was it about -- was it like a few months

24   before?

25       A     It was somewhere between, I would guess, 2002


                                                               62
 1   to 2004, somewhere in that winter sometime.   I don't

 2   recall the exact time.

 3       Q    A couple of years then before you actually --

 4       A    I don't recall.

 5       Q    I'm not asking for some specific date as much

 6   as whether it was the same year or a couple of years

 7   before, or five years before, just a general idea is all

 8   I was interested in.

 9       And also when did you put in the air conditioning

10   in her house?

11       A    As soon as we moved back or either -- I should

12   say after we purchased the farm.

13       Q    And there was an issue with the water well?

14       A    Correct.

15       Q    And the power didn't get connected properly,

16   or promptly rather?

17       A    It took six weeks.

18       Q    Would you agree that all of these things are

19   things that could have been remedied and addressed

20   without your purchasing the property?

21       A    What things?

22       Q    Well, for example, hire an electrician to fix

23   the electric pump connected with the water well.     The

24   purchase of the property wasn't necessary to address

25   these issues is what my question is.


                                                                63
 1       A       No.

 2       Q       Your mother's final time in this life was

 3   August 7?

 4       A       When she passed away?

 5       Q       Yes.

 6       A       August 14.

 7       Q       When she fell, the fall that resulted in her

 8   final hospitalization, the final short illness, was that

 9   August 7?

10       A       It was sometime, whatever the dates are.     I

11   don't have a calendar in front of me.      From that

12   Saturday night to sometime Sunday morning.

13       Q       And is it true that a caregiver is the one

14   that found your mother on the floor?

15       A       Correct.

16       Q       This was a Saturday or a Sunday, did you say?

17       A       It was a Sunday morning.

18       Q       Was the caregiver scheduled to come out and

19   assist your mother?      I guess there wasn't any call to

20   her if the caregiver is the one who found her, correct?

21       A       Call to who?

22       Q       Well, let me strike that.

23       Do you know what time of day it was that the

24   caregiver arrived?

25       A       Somewhere between 7:30 and 8:00.


                                                                  64
 1       Q    In the morning?

 2       A    Correct.

 3       Q    What time was the last time somebody was with

 4   your mother, present with her the evening before?

 5       A    I was with her when she went to bed around

 6   10:00, or prepared to go to bed around 10:00.

 7       Q    So sometime -- her fall would have been

 8   sometime between 10:00 at night the night before and

 9   7:30 the next morning, correct?

10       A    Correct.

11       Q    And I've heard it said and let me ask you if

12   you agree with this.   She had a stroke and it's

13   impossible to determine whether the stroke occurred

14   before the fall or perhaps causing the fall or after the

15   fall; is that correct?

16       A    I don't know which came first.

17       Q    Did she have a stroke?

18       A    It is my understanding.

19       Q    She could have had the stroke sometime during

20   the night or when she got up that morning, correct?

21       A    She had gotten up during the middle of the

22   night and was eating cookies.

23       Q    She had gotten up in the middle of the night

24   and was eating cookies?

25       A    Sometime.


                                                              65
 1       Q      And I take it you knew it because you had

 2   found some cookies out?

 3       A      Yes.

 4       Q      And I take it -- what is it that makes you --

 5   that indicates that she had gone back to bed after

 6   eating some cookies?

 7       A      No, she didn't.   She wasn't in bed.

 8       Q      Correct.   I misstated that.   When you say the

 9   middle of the night, how do you know it was the middle

10   of the night?     That's what I'm getting at.

11       A      Well, I don't know what time it was.     I would

12   reference that would be sometime between 10:00 and

13   sunrise.

14       Q      Was it your mother's habit to eat cookies for

15   breakfast?

16       A      I didn't say she was eating breakfast.

17       Q      And I was not trying insinuate that's what you

18   said.

19       A        I wasn't with her every time she ate

20   breakfast.

21       Q      Nobody was with her between 10 p.m. and 7:30

22   in the morning, correct?

23       A      No, sir.

24       Q      And you were here yesterday when your friend,

25   Mr. Harrison, testified.     He's an emergency medical


                                                                   66
 1   technician?

 2       A      Correct.

 3       Q      And you heard him testify about what he

 4   referred to as the golden hour?

 5       A      Correct.

 6       Q      If you can't get to a stroke victim within one

 7   hour then chances of survival -- I don't recall exactly

 8   how he put it, but it sounds like it decreases

 9   significantly, correct?

10       A      I think that could be determined in a lot of

11   different things.

12       Q      Well, you heard his testimony, correct?

13       A      I did.

14       Q      Was there evidence that your mother's bedroom,

15   that she had thrashed around on the floor before she was

16   found?

17       A      It didn't appear to be, but I wasn't looking

18   at that.

19       Q      It was in the bedroom; wasn't it?

20       A      It was.

21       Q      What time was it that you first came to be in

22   your mother's presence?   I assume you got a call from

23   the caregiver?

24       A      Correct.

25       Q      And when the caregiver called you, were you in


                                                                67
 1   the house that you and Amanda lived in?

 2       A    Yes, I was.

 3       Q    And what time -- did you all call the

 4   ambulance or what?

 5       A    Somebody did, yes.

 6       Q    What time did they arrive?

 7       A    I don't have any idea.

 8       Q    Isn't it likely that this golden hour had come

 9   and gone before your mother was able to get attended to?

10       A    I have no idea.

11       Q    When was it that your mother started having

12   full time care brought to the home?

13       A    She never had full time care.

14       Q    What about -- what was the greatest number of

15   hours during the day that you hired somebody to be a

16   caregiver for her; in other words did you hire somebody

17   to come out between 8 and 5, or from what periods of

18   time?

19       A    Whatever -- I don't remember exactly.

20       Q    Was there ever -- there was never overnight

21   care for her?

22       A    No, sir.

23       Q    She was alone in the house up until the time

24   of her death, correct?   Overnight, I mean.

25       A    Correct.


                                                              68
 1       Q       Did you ever consider moving her into the

 2   house that you and Amanda lived in?

 3       A       No.

 4                     MR. WALDEN:    Pass the witness, Your

 5   Honor.

 6                     THE COURT:    Redirect?

 7                     REDIRECT EXAMINATION

 8   BY MS. ALLEN:

 9       Q       Mr. Wade, just a couple of questions.     You

10   were asked about two meters on the property.       Do you

11   remember those questions?

12       A       I do.

13       Q       Two meters, electric meters.

14       A       Correct.

15       Q       Was there one at your mom's house?

16       A       There was.

17       Q       The rock house that we've seen in the

18   pictures?

19       A       Correct.

20       Q       Was there another meter on the property?

21       A       At the well.

22       Q       At the water well?

23       A       Yes, ma'am.

24       Q       Is that the water well you talked about that

25   was put in when your mom was out in California with you


                                                                 69
 1   and Amanda?

 2       A      Correct.

 3       Q      Who put that in?

 4       A      Harrison Well Drilling Service by Nancy.

 5       Q      When Mr. Walden talked a little bit about the

 6   electrician who helped with the water well, who was

 7   that?

 8       A      That would be Bill Burns and my brother, Bud.

 9       Q      Brother Bud is an electrician?

10       A      Yes.

11       Q      Do you have instant recall of the different

12   affidavits that your sister Nancy has filed in this

13   lawsuit?

14       A      I don't know by memory.

15       Q      I wouldn't have thought that.    So let me show

16   you -- do you recognize your sister's signature on it?

17       A      I do.

18       Q      Could you look to the paragraph 9, the last

19   paragraph on it.      I just want to see if we can confirm

20   something.     Are you with me?

21       A      Yes, ma'am, I am.

22       Q      Do you see in her affidavit she talked about

23   Pat Cavness?

24       A      I do.

25       Q      The lawyer that we talked about in this


                                                                  70
 1   lawsuit?

 2       A       Yes, ma'am.

 3       Q       And his notes; do you see that in paragraph 9

 4   of her affidavit?

 5       A       I do see that.

 6       Q       It says Exhibit A-4.   Do you see that?

 7       A       I do see that.

 8       Q       Is there an A-4 on the affidavit?

 9       A       Yes, ma'am.

10       Q       Can you look at A-4 to your sister Nancy's

11   affidavit and tell us whether those notes are consistent

12   with your meeting -- your memory of the meeting with Mr.

13   Cavness that you and Amanda and your mom and Nancy

14   attended?

15       A       Yes, ma'am.

16       Q       Is Defendant's 33 the same as A-4 to your

17   sister's affidavit?

18       A       They appear to be, yes, ma'am.

19                   MS. ALLEN:    Offer Exhibit 33, Your Honor.

20                   THE COURT:    Have you seen 33?

21                   MR. WALDEN:    Not today.   Let me just make

22   sure -- if I may approach?

23                   THE COURT:    You may.

24                   MR. WALDEN:    No objection.

25                   THE COURT:    I think he said no objection?


                                                                 71
 1                 MR. WALDEN:    I'm sorry.   No objection.

 2                 THE COURT:    Defendant's 33 will be

 3   received into evidence.

 4       Q    (By Ms. Allen)     Mr. Wade, were you here, and I

 5   have to ask you that because you sit behind me and I

 6   don't always see you, but were you here when your sister

 7   Nancy talked to the jury about holding your mom's power

 8   of attorney for 15 years?

 9       A    Yes, ma'am.

10       Q    From 1993 to 2007?

11       A    Yes, ma'am.

12       Q    So she had your mom's power of attorney during

13   the time that this whole land discussion was going on,

14   right?

15       A    Yes, ma'am.

16       Q    Did you hear her talk about her role as your

17   mom's trusted adviser during that time?

18       A    I did, yes, ma'am.

19       Q    Was that consistent with your memory as well?

20       A    Yes, ma'am.

21       Q    Is that the same Nancy who was sitting in your

22   mom's living room when you and your mom had the

23   discussion in which your mom said, Here's my price?

24       A    Yes, ma'am.   That's the same sister.

25       Q    Is that the same Nancy who was sitting in Pat


                                                               72
 1   Cavness's office when he made those notes that are

 2   Exhibit 33?

 3       A    Yes, ma'am.

 4       Q    Did that Nancy ever say to you, Johnny, now

 5   I've got to look out for mama, you need to get an

 6   appraisal.

 7       A    She did not.

 8       Q    Did that Nancy ever say, Now, Johnny, this is

 9   the family homestead and I'm going to notify all of the

10   siblings what's going on here.

11       A    Did she say that to me?

12       Q    Yes, sir.

13       A    She did not.

14       Q    Did that Nancy say, Now, Johnny, I don't know

15   about this asking price that mom had, I think we need to

16   go check on that.    Did she ever say that?

17       A    No, ma'am.

18                    MS. ALLEN:    Pass the witness.

19                    RECROSS EXAMINATION

20   BY MR. WALDEN:

21       Q    Mr. Wade, isn't it true that she did suggest

22   that you notify all of your siblings about the purchase

23   of the homestead?

24       A    I have no recollection of that conversation.

25                    MR. WALDEN:    Pass the witness.


                                                              73
 1                    MS. ALLEN:    Nothing further, Your Honor,

 2   of this witness.

 3                    THE COURT:    You may step down.

 4                         ******

 5                          (Jury present.)

 6                    MR. RICHIE:    The first rebuttal witness

 7   we would call would be Amanda Wade.

 8                    MR. STUBBS:    Your Honor, may we approach?

 9                         (The following was in the presence

10                         but out of the hearing of the jury.)

11                    MR. STUBBS:    Your Honor, she was already

12   called at trial.     She was called -- they had an

13   opportunity -- they had five hours on the stand.       I'd

14   like to have some idea of what they're trying to rebut

15   other than just trying to re-present their case again.

16                    MR. RICHIE:    For example, I mean, I don't

17   think that I have to -- you can object when I ask the

18   question, but this is purely rebuttal.      So if you want

19   an example, Mr. Harrison got on the stand yesterday and

20   said he was not paid for his services he rendered for

21   Edell Wade.     I have a check that proves quite the

22   opposite.     And it's got Amanda Wade's signature on it

23   and it shows what it's for.      It will simply be rebuttal.

24   It will probably take 10 minutes, maybe 15.

25                    MR. DUCLOUX:    But he had Mr. Harrison on


                                                                   74
 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


                                                              85
                        03-15-00100-CV

 1    Supplemental REPORTER'S      RECORD

 2                   VOLUME 4 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       EXCERPT TRIAL TESTIMONY OF KIM GEORGE, SUE MEUTH,

13   BUD WADE, CHRIS HARRISON, DEBRA SLOAN AND CHARLENE DAVIS

14              AND TRIAL TESTIMONY OF JOHNNY WADE

15

16

17

18

19              On the 2nd day of October, 2014, the following

20   proceedings came on to be held in the above-titled and

21   numbered cause before the HONORABLE RANDY SAVAGE, Judge

22   presiding, held in Burnet, Burnet County, Texas.

23              Proceedings reported by computerized stenotype

24   machine.

25


                                                                   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 4 OF 6 VOLUMES

 3                     CHRONOLOGICAL INDEX

 4   PLAINTIFF'S WITNESSES:

 5   NAME:               Dir   Cross   Redir   Recross   Vol

 6   Sue Meuth                 7/25                          4

 7   Bud Wade                    30                          4

 8   DEFENDANT'S WITNESSES:

 9   NAME:              Dir    Cross   Redir   Recross   Vol

10   Kim George         65                                       4

11   Chris Harrison     123                                      4

12   Debra Sloan        132                                      4

13   Charlene Davis     137                                      4

14   Johnny Wade        139                                      4

15   Court Reporter's Certificate                 Page 177       4

16

17

18

19

20

21

22

23

24

25


                                                                     4
 1                     REPORTER'S RECORD

 2                    VOLUME 4 OF 6 VOLUMES

 3                     ALPHABETICAL INDEX

 4   WITNESSES:             Dir   Cross     Redir   Recross   Vol

 5   Charlene Davis       137                                 4

 6   Kim George            65                                 4

 7   Chris Harrison       123                                 4

 8   Sue Meuth                    7/25                        4

 9   Debra Sloan          132                                 4

10   Bud Wade                     30                          4

11   Johnny Wade          139                                 4

12

13

14

15

16

17

18

19

20

21

22

23

24

25


                                                                    5
 1                       REPORTER'S RECORD

 2                  VOLUME 4 OF 6 VOLUMES

 3                        EXHIBIT INDEX

 4   PLAINTIFF'S EXHIBITS:

 5   No:    Description                      Offered   Rec'd   Vol

 6

 7   DEFENDANT'S EXHIBITS:

 8   No:   Description                       Offered   Rec'd   Vol

 9   22    Copies of checks                   29        29     4

10   23    Copies of checks                   49        49     4

11   24    Copy of e-mail communication       86        86     4

12   25    Copy of newspaper article          87        87     4

13   26    Copies of e-mails                 123       123     4

14   27    Copies of photographs              77        78     4

15   28    Copy of letter to Edell Wade       79        80     4

16   30    Newspaper Article                   81       82     4

17

18

19

20

21

22

23

24

25


                                                                     6
 1   back.

 2       Q      And you had told us at the time as far as you

 3   knew people hadn't even opened up the boxes?

 4       A      Some of them.    You're right.

 5                    MR. DUCLOUX:    That's all the questions I

 6   have.

 7                    (End of cross examination of Sue Meuth.)

 8                          ******

 9                         BUD WADE

10   Having been previously sworn, testified as follows:

11                      CROSS EXAMINATION

12   BY MR. STUBBS:

13       Q      Mr. Wade, you didn't know about any of the

14   cash because you weren't here, right?

15       A      I didn't know about the cash?

16       Q      Well, you weren't here.     You're saying, Well,

17   I didn't know about this, I didn't know about that.        You

18   weren't here; were you?

19       A      I was somewhere.

20       Q      You were in either Buda or Kyle or Hayes,

21   where it is, right?

22       A      That's right.

23       Q      Okay.    And when you went to Buchanan Dam or

24   Lake Buchanan to your property, you said that was back

25   in 2008?


                                                                   30
 1          A   I think that's correct.

 2          Q   And did you go and visit your mother between

 3   that date and August 7th of 2010?

 4          A   The date at the lake and 2010?

 5          Q   Yes, sir.

 6          A   Yes.

 7          Q   Okay.    At the ranch?

 8          A   Yes.

 9          Q   And you never had any trouble getting in; did

10   you?

11          A   I did at times.

12          Q   Okay.    Well, that's not what your testimony

13   has been; has it?

14          A   Well, there was times we would call mother and

15   the gate would be unlocked and we assumed, I didn't ask,

16   but I assumed that she drove down and opened it up.

17          Q   That's pure speculation on your part; isn't

18   it?

19          A   It is.

20          Q   Okay.    Now let's talk about your property.

21   You live in, did you say Kyle?

22          A   It's off 1626.    It's near -- it's I'd say five

23   miles from Manchaca and maybe five or six miles from

24   Buda.

25          Q   Kind of by Hayes Consolidated School District;


                                                                31
 1   is that why you refer to it as Hayes?

 2       A    Well --

 3       Q    That's okay.    It doesn't matter.   Just in the

 4   general area.    What kind of property do you have there?

 5       A    There -- where we are residing now is in a

 6   subdivision, but some of the land is an Ag exemption.

 7       Q    Okay.    How big is your house?   How many

 8   bedrooms does your house have?

 9       A    Three.    Three bedrooms, two baths.

10       Q    Okay.    You and Gwen live there?

11       A    Yes.

12       Q    Anybody else live there?

13       A    Not at this time, no.

14       Q    Did anybody else live there -- when did you

15   move there?

16       A    It was about eight years ago.

17       Q    Has anybody else lived there in that house

18   with you in that eight years?

19       A    Not with me.    The daughter and her husband and

20   children moved into the house prior to us because they

21   were trying to build a house so they moved in for a year

22   and a half.

23       Q    But that was before?

24       A    Before we moved in.

25       Q    Okay.    Then all that time you never once asked


                                                                 32
 1   your mom to come move in with you; did you?

 2       A       No.

 3       Q       I mean, you had a three bedroom, two bath

 4   house.     Obviously you had plenty of room; didn't you?

 5       A       Yes.

 6       Q       And you're trying to imply that somebody was

 7   supposed to be with her 24 hours a day?

 8       A       That was here.

 9       Q       But --

10                      MR. RICHIE:    Your Honor, I think he

11   should be allowed to answer without being interrupted.

12                      THE COURT:    All right.    Go ahead and

13   proceed with your question.

14       Q       (By Mr. Stubbs)      I mean, your implication to

15   this jury is that it's somehow somebody else's fault

16   that nobody was with her 24 hours a day, right?

17       A       I was referring to later on in life, you know,

18   when she was, you know, in her 90s.           And I wouldn't have

19   objected to somebody being there.        I really wouldn't.

20   She had plenty of money.         She would have been at home.

21   It could have been 24 hours a day with them and been no

22   problem.

23       Q       Sure.    But I mean your implication to this

24   jury is that Johnny and Amanda are a full 200 yards

25   away, right?


                                                                     33
 1       A    Right.

 2       Q    Yet, you're living in a three bedroom, two

 3   bath house.    You're retired.   Your wife's retired and

 4   you just told this jury your mom had plenty of money to

 5   hire somebody.    Why didn't you move her into your house

 6   if you're so concerned?

 7       A    Well, it makes sense to me that she would

 8   remain in her own house with somebody caring for her

 9   than to take her away from her house.     I would rather

10   her stay there if she could have the proper care.

11       Q    And she could stay there and she did have the

12   proper care; didn't she?

13       A    No.

14       Q    No.     Okay.

15       Well, let's talk about that August 6th trip.     You

16   went -- and apparently it's a big deal that you had to

17   climb the fence to get the key.     You knew there was a

18   key there, right?

19       A    I suspected because the wife said that Johnny

20   told her there was one there.

21       Q    So nobody tried to hide from you where the key

22   was; did they?

23       A    It wasn't there for my purpose.     It was there

24   for their purpose.

25       Q    It was there for anybody's purpose, wasn't it?


                                                                 34
 1   It was hanging on a post and that way they can tell

 2   anybody that needs to use it, right?

 3       A       Anybody that can climb the fence and try to

 4   get the key that way.    But it was on their side of the

 5   fence.   I thought it was there because they might forget

 6   their key and then they have another key hidden for

 7   themselves.    That's what made sense to me.   Not to have

 8   to climb the fence.

 9       Q       If they were trying to hide the key why would

10   your wife have known where it was?

11       A       Because she was asking about a key and Johnny

12   said, Well, there's a key on the third post down from

13   the gate.

14       Q       It wasn't hidden from her then; was it?

15       A       It wasn't what?

16       Q       It wasn't hidden from her.   I mean, he didn't

17   have to tell her there was a key there if he didn't want

18   her to know, right?

19       A       It was a way for him to not issue us a key.

20       Q       Did you ever ask him for a key and he said,

21   No, you cannot have a key?

22       A       He didn't say no.   He don't have to say no.

23   He had plenty of times to offer me a key and didn't.

24       Q       And instead of offering you a key he told you

25   where the key was, three posts down, right?


                                                                  35
 1       A      That was the last time that I entered the

 2   property is when I used that key.

 3       Q      And that was the only time that the property

 4   was locked; wasn't it?

 5       A      No.

 6       Q      Did you ever go to the property and you

 7   couldn't get in?

 8       A      Unless I used the gap.    I could get in through

 9   the gap.

10       Q      Then it wasn't really locked; was it?

11       A      Well, it wasn't easy to access.

12       Q      Well, let's explain to this jury because

13   you're talking about a gap.     Now, a gap is basically a

14   gate in a fence, correct?

15       A      That's right.

16       Q      It's not made out of steel or wood or

17   something that is more permanent, correct?

18       A      No.

19       Q      It's just made out of wire?

20       A      Wire.

21       Q      And it's a gate, right?

22       A      Yes.    It's access to property.

23       Q      And at least the ones that I've dealt with

24   generally have your strands of wire, just like a fence,

25   and on the end you'll have a cedar post and then where


                                                                 36
 1   that cedar post matches up with another cedar post

 2   you'll have a wire at the top and a wire at the bottom,

 3   right?

 4       A    That's correct.

 5       Q    Okay.    So what you have to do is you have to

 6   stand up and you have to take that post and push it

 7   about this far, right?

 8       A    Well, you know, it depends on the gap.     I've

 9   seen them where it would have -- they would leave a stay

10   or something to where you would have to use that for

11   leverage and pull it, but --

12                 THE COURT:    Could I have counsel

13   approach, please.

14                    (The following was in the presence but

15                    out of the hearing of the jury.)

16                 THE COURT:    I want you to conduct your

17   cross examination any way that you want to however we're

18   running out of time.   And I'm sure the jury is aware of

19   what a gap in a fence is.

20                 MR. STUBBS:    That's fine.

21                 THE COURT:    You might want to move on.

22                 MR. STUBBS:    That's fine.

23                       (The following was in the

24                       presence and hearing of the jury.)

25       Q    (By Mr. Stubbs)    Mr. Wade, the point of that


                                                                37
 1   is you had to take a stay, move it a matter of a couple

 2   of inches, lift the wire up and drag the gap out of the

 3   way, right?

 4          A      Yes.

 5          Q      And it wasn't locked?

 6          A      It wasn't locked.

 7          Q      Now, your testimony that that August 7, 2010

 8   trip up there -- and you follow where I am?

 9          A      Yes.

10          Q      And you actually called on August 6th and the

11   phone wasn't working, correct?

12          A      My sister did.   She called and she had started

13   I think about four days prior and the phone line was

14   out.       She called that morning that we was on the way up

15   and talked to Nancy and she said the phone line was

16   down, the phone line wasn't working.

17          Q      So your understanding was that it had been

18   four days yet you didn't say, Well, heck, it's only an

19   hour and a half up there, I need to get up there and see

20   what's going on; did you?

21          A      Well, I didn't know it until late that

22   evening, and I said I've been wanting to go up.        I'll go

23   up in the morning and see what's wrong with the phone

24   line or check on it.

25          Q      But you didn't go up there when you learned


                                                                   38
 1   that there might be an issue?

 2       A       That's right.

 3       Q       Okay.   Now let's go back to 2004.   In 2004,

 4   and I apologize I don't know the date of the deed.       I

 5   don't know the date of that sale.      Let me ask you about

 6   that.     You were asked all of these questions about did

 7   you receive copies of various documents.      Have you ever

 8   sold any property?

 9       A       Yes.

10       Q       Who all did you send documents to; did you

11   send documents to all of the family members of the

12   people you sold it to?

13       A       I didn't have anything to do with any of the

14   papers.     I was -- the property I sold I was in

15   partnership with and possibly they did.      I didn't get

16   involved in it.

17       Q       Okay.   So going back to 2004, this 475 acres,

18   who owned it?

19       A       In what year?

20       Q       Back in 2004?

21       A       2004?

22       Q       Yes.    Let's say January 1st of 2004, just so

23   the record is clear.

24       A       Mother I think owned it at that time.

25       Q       And she owned it outright; didn't she?


                                                                  39
 1       A    Yes.

 2       Q    You didn't have any ownership in that 475

 3   acres; did you?

 4                   MR. RICHIE:    Your Honor, that calls for a

 5   legal conclusion.   I believe he did.       He was a

 6   beneficiary under the will.      I'm going to object to it.

 7                   MR. STUBBS:    That's a misstatement.

 8                   THE COURT:    Overruled.

 9       You may answer the question.

10       Q    (By Mr. Stubbs)      Did you have any legal

11   interest in that property?

12       A    Legal interest?

13       Q    Any -- did you have any ownership interest in

14   that 475 acres on January 1st of 2004?

15       A    No.

16       Q    So your mother was the sole owner of that 475

17   acres?

18       A    Yes.

19       Q    And she could do with it anything she wanted

20   to do, correct?

21       A    Legally, yes.       But --

22       Q    Well, I mean, there's not a distinction

23   between legally and something else.        She could either do

24   with it what she wanted or she couldn't.       And I want to

25   make sure this jury understands you knew that January


                                                                 40
 1   1st of 2004 it was her property, correct?

 2       A     Yes.

 3       Q     And she could do with it anything she wanted?

 4       A     Yes, I suppose she could.

 5       Q     And she didn't have to ask you for permission?

 6       A     No.

 7       Q     Didn't have to ask your sister for permission?

 8       A     No.

 9       Q     Didn't have to ask Johnny for permission?

10       A     No.

11       Q     She could have sold it to some -- she could

12   have sold it to a neighbor who was completely unrelated;

13   couldn't she?

14       A     I don't think she would have done that without

15   talking with me and then some of the other siblings.

16       Q     Sure.   And you can say you don't think she

17   would have done whatever.   That's not my question.     My

18   question for this jury to understand is that she was

19   perfectly free to do whatever she wanted with that

20   property and if that meant selling it to a neighbor she

21   didn't have to get permission from anybody, correct?

22       A     Well, that's correct.

23       Q     If she wanted to give the property way, it was

24   hers.   She could do with it what she wanted, correct?

25       A     That's correct.


                                                                  41
 1       Q       If she wanted to leave it to the Girl Scouts

 2   so they could make a camp out of it, she could do that.

 3       A       She could donate it.

 4       Q       She could donate it, she could sell it, she

 5   could sell part of it, she could cut it up.        She could

 6   do anything she wanted?

 7       A       Yes.

 8       Q       And you didn't have any say in what the price

 9   would be or what the terms would be; did you?

10       A       No, but I would hope that she would, before

11   she sold anything, that she would know what the property

12   is worth.    I would hope that she would do that.

13       Q       Well, your testimony is that -- and you heard

14   Mike Martin say she was very lucid, right; you heard him

15   say that didn't you?

16       A       I didn't hear much testimony because of the

17   sound system.

18       Q       Well, you're not trying to tell this jury that

19   your mom didn't know what she was doing or that she was

20   out of her mind; are you?

21       A       I'm not saying she was out of her mind.     I

22   can't say that she was -- wasn't -- I call it bamboozled

23   when I found out that she had actually sold the

24   property.    And I told my sister that she was bamboozled.

25       Q       Okay.   Well, let's talk about that.    When you


                                                                    42
 1   found out that she had sold the property to Johnny

 2   relatively soon after that happened, correct?

 3       A     Yes.

 4       Q     Was it within a couple of months?

 5       A     Less than that.    I don't know.   Mother called

 6   and the wife answered the phone.     She told her and that

 7   was it.   She didn't tell me.    Mother never talked to me

 8   about selling the property.

 9       Q     But she told your wife knowing that your wife

10   would tell you, right?

11       A     That's correct.

12       Q     She didn't try to hide it from you; did she?

13       A     The wife didn't try.

14       Q     You don't have any reason to think that all

15   documents that are supposed to be filed in the

16   transaction of real estate weren't filed?     I apologize.

17   Let me rephrase that.    That's a terrible question.

18       To the best of your knowledge, anything that was

19   supposed to be filed was filed, correct?

20       A     I understand the papers were signed in

21   California or something.     I understand the papers were

22   all signed and the deal was done before I knew about it.

23   It was all done in secret.

24       Q     But you just told this jury your mom didn't

25   have to get permission to do anything, correct?


                                                                  43
 1         A   From me, yes.

 2         Q   And she told you about it afterward, so it

 3   really wasn't in secret?

 4         A   It was in secret that she sold the place.    To

 5   me.

 6         Q   And you heard your sister testify, Nancy, that

 7   she actually went with your mother and Johnny to Pat

 8   Cavness's office before the sale ever took place, right?

 9         A   I heard her say that.

10         Q   You don't have any reason to think she's

11   lying, do you?

12         A   No, I don't doubt her word at all.

13         Q   So it wasn't really in secret; was it?

14         A   It was to me.    I'm talking about myself.

15         Q   So you find out about it within a few days

16   after the sale?

17         A   Right.

18         Q   You had actual notice.    You knew it had

19   happened, correct?

20         A   Yes.

21         Q   And so obviously -- well, I believe you said

22   something like you smelled a rat; is that right?

23         A   Well, kind of smelled like one.

24         Q   Felt like she had been bamboozled?

25         A   Exactly.


                                                                 44
 1         Q   So obviously to right this wrong, as you want

 2   to tell this jury, you immediately went to mom and you

 3   said, Mom, we have to undo this deal.     Right; that's

 4   what you did?

 5         A   No.

 6         Q   You didn't do that?

 7         A   I didn't go to her place at all.    I never

 8   talked to her about the place at all.     If she wanted to

 9   talk about the place, she could have talked to me.

10         Q   But she did.    She called your wife and told

11   her she sold the place?

12         A   She said the place sold and that's all she

13   said.

14         Q   And she opened up that conversation, right?

15         A   Well, I mean if that's what you want to call

16   it.

17         Q   And since this -- since she had been

18   bamboozled and you're so concerned about mom you did

19   nothing, right?

20         A   Well, that was after the papers was signed.

21   It's a little bit hard to do anything.

22         Q   No, no, no.    That's not my question.   You

23   didn't try to do anything; did you?

24         A   Well, what could I have done?

25         Q   You could have called her; couldn't you?


                                                               45
 1       A    What for?

 2       Q    To say, Mom, this is a mistake.       We've got to

 3   undo this.     Right?   I don't like it.   You could have

 4   done that; couldn't you?

 5       A    Well, I did respect my mother as a person.

 6   She made a few decisions that in my personal decision it

 7   was a mistake.    It was the worst mistake she ever made

 8   in her life as far as I'm concerned.

 9       Q    And so you waited seven years before you do

10   anything about it, right?

11       A    It was after her death.

12       Q    So you respected her enough not to say

13   anything to her about it, even though you had actual

14   knowledge --

15       A    If she wanted to talk to me, she could have.

16   I would have listened.

17       Q    But you don't have enough respect for her to

18   not file a suit after she dies about it?

19       A    She didn't know anything about it.       She was

20   passed away.

21       Q    So that makes it okay?

22       A    I found out a lot of things after her death

23   that I didn't know.

24       Q    But you just told this jury that she had been

25   bamboozled and you smelled a rat within a few days of


                                                                   46
 1   the sale, right?

 2       A       After the sale.

 3       Q       I thought that's what I said, but I think the

 4   point's made.     Yet you wait seven years to complain

 5   about it, right?

 6       A       I didn't think there was much need to

 7   complain.

 8       Q       Well, let me ask you this.     Did you ever go to

 9   Johnny and say, Hey, Johnny, I would really like to buy

10   a part of this ranch?

11       A       I didn't have any interest in buying it for

12   myself.     I have enough property that I don't have any

13   interest.

14       Q       So you don't want the ranch.     You don't have

15   any interest in having it?

16       A       No.   That's exactly right.    I didn't.   First

17   of all, in my own mind I couldn't afford it.       I felt

18   like, well if I paid what Johnny paid, yeah, I probably

19   could have.

20       Q       You never went to Johnny and said you wanted

21   to buy part of the ranch?

22       A       No.

23       Q       Whatever the terms are you got from mom I want

24   the same terms.     You never even asked?

25       A       I didn't have any need for it.


                                                                    47
 1       Q       Okay.   And never went to mom and said, Mom,

 2   I'd like to undo this or I would like for you to ask

 3   Johnny to sell the ranch to all of us.       Did you ever ask

 4   her that?

 5       A       Why would I -- it would cause her to be upset

 6   and I didn't want to do that.

 7       Q       Whenever she did pass away, you went ahead and

 8   accepted your part of your inheritance; didn't you?

 9                   MR. RICHIE:    Your Honor, may we approach?

10                   THE COURT:    You may.

11                         (The following was in the presence

12                         but out of the hearing of the jury.)

13               MR. RICHIE:   They had counterclaims based upon

14   waiving because he had accepted his inheritance rights

15   and you ruled on that.     It doesn't matter with him going

16   into the fact that he accepted his inheritance benefits

17   under the rule.     It's irrelevant.

18                   MR. STUBBS:    On top of that there hasn't

19   been any.    There's been POD beneficiary designations

20   that have been distributed, and that is it.

21                   MR. RICHIE:    I'm not --

22                   MR. STUBBS:    Well, your co-counsel

23   confused it badly and he did that on purpose.

24                   THE COURT:    Okay.    You may ask about the

25   -- because I assume that Amanda made those distributions


                                                                    48
 1   so you can go into that.

 2                 MR. STUBBS:    Thank you, Your Honor.

 3                      (The following was in the presence

 4                       and hearing of the jury.)

 5                 MR. STUBBS:    May I approach the witness,

 6   Your Honor?

 7                 THE COURT:    You may.

 8       Q     (By Mr. Stubbs)   I'm handing you what has been

 9   marked as Defendant's Exhibit No. 23.    Look over that,

10   please.

11                 MR. RICHIE:    We have no objection to it

12   being admitted into evidence.   He doesn't need to prove

13   it up.

14                 THE COURT:    All right.   Defendant's

15   Exhibit 23 will be received into evidence.

16       Q     (By Mr. Stubbs)   Mr. Wade, since 23 is already

17   in evidence I think it will be quicker for me to

18   basically confirm with you what it is.    And this is a

19   letter from Martin Millican Henderson and Shrum having

20   to do with disbursements being made to you following

21   your mother's death; is that correct?

22       A     That's correct.

23       Q     And it's a copy of I believe it's got the

24   green card from being sent certified, and it has one,

25   two, three, four, five different certified cashier's


                                                                49
 1   checks, right?

 2       A    Right.

 3       Q    And it looks like that adds up to a little

 4   over $84,000.     Does that sound about right?

 5       A    That's what I remember.

 6       Q    All right.

 7                    MR. STUBBS:    Your Honor, may I publish

 8   that to the jury, please?

 9                    THE COURT:    You may.

10       Q    (By Mr. Stubbs)       And had you, instead of

11   waiting until she dies to file this lawsuit, had you

12   gone to her you said it would have upset her, right?

13       A    Yes.

14       Q    And if you upset her she has every right to

15   change her will; didn't she?

16       A    Well, yes.     She could do whatever she wanted

17   to in her will.

18       Q    And if she changes her will she doesn't have

19   to leave you anything, right?

20       A    That would have been true.

21       Q    And she didn't have to and you don't get that

22   $84,000 or whatever else you got?

23                    MR. RICHIE:    Your Honor, that assumes

24   facts not in evidence.     These are pay on death accounts.

25   They didn't pass under the will.      I object.


                                                                 50
 1                      THE COURT:   Overruled.

 2       Q       (By Mr. Stubbs)     She could have changed her

 3   will and cut you out; couldn't she?

 4       A       She could have.     But as I grew up it was

 5   always share and share alike.       That's what I always

 6   remember.

 7       Q       And you testified earlier on that point, you

 8   testified earlier that you were familiar with her prior

 9   will, right?

10       A       Yes.    I seen it after her death.

11       Q       And this whole concept of share and share

12   alike, her prior will wasn't a one-seventh distribution

13   to each of the seven kids; was it?

14       A       No.    Well, she did have Weldon a little bit

15   different as receiving one fifth.       But if you calculate

16   the amount of money that would have been if using the

17   500,000, wouldn't have been that much difference.

18       Q       My point is it wasn't one-seventh to each of

19   the kids in her prior will?

20       A       Of course I didn't know about that until after

21   her death, and that's why I'm stating it as I grew up it

22   was share and share alike, and that's the way I always

23   felt.   I didn't know that she had done that, and that

24   was her priority.

25       Q       And let's talk about where everybody was back


                                                                  51
 1   in 2004.   It's my understanding you were in Austin or

 2   Hays or Buda, somewhere in that area?

 3       A      That's correct.

 4       Q      And I believe you told this jury it's an hour

 5   and a half away or so?

 6       A      An hour and a half, but nowadays it takes an

 7   hour to get out of Austin.

 8       Q      Okay.    Fair enough.   You didn't have any

 9   desire to come back to Lampasas; did you?

10       A      Not to live.

11       Q      And can you go through the other siblings for

12   me, because I'm afraid I'll get a name confused, but you

13   had Johnny who was in California, right?

14       A      Right.

15       Q      And you had, let's see, Nancy who was in

16   Lampasas, right?

17       A      Right.

18       Q      You had Sue who was I believe in Bastrop; is

19   that right?

20       A      Bastrop, Cedar Creek.

21       Q      Is that also an hour and a half or so away?

22       A      Might be a little longer.

23       Q      An hour and a half to two hours then probably?

24       A      Yes.

25       Q      Who else do we have here.    I believe we have


                                                                 52
 1   somebody in Georgia?

 2       A      Somebody else where?

 3       Q      Where are your other siblings?      Don't you have

 4   another sibling that was living in Georgia at the time

 5   or maybe still living there?

 6       A      Emma.

 7       Q      Emma.   Okay.   And then you have Weldon who is

 8   in Oklahoma; is that right?

 9       A      That's right.

10       Q      And Emma wasn't planning on moving back to

11   Lampasas; was she?

12                    MR. RICHIE:    Objection, Your Honor.

13       Q      (By Mr. Stubbs)     As far as you know?

14                    MR. RICHIE:    Excuse me.   First of all I'm

15   going to object to the question.      We don't know Emma's

16   mind.   It calls for a state of mind.

17                    THE COURT:    I'll sustain the objection.

18       Q      (By Mr. Stubbs)     As far as you know, did any

19   of your siblings have any intention of moving back to

20   Lampasas other than possibly Johnny?

21       A      I didn't know anybody was interested in it

22   except Johnny had told me probably in 1996 or along

23   those lines that he walked up to me when we was at

24   Nancy's house.     I think that was the day of daddy's

25   funeral.   I'm not certain about that, but it was a


                                                                  53
 1   family gathering and he walked up to me and said then

 2   that, I want to buy the place.     And I said, I don't

 3   care.

 4       Q     About what year was that?

 5       A     About 1996.

 6       Q     Okay.     So in '96 you knew that Johnny had

 7   expressed interest in buying the place?

 8       A     He's always had his eye on the place.

 9       Q     Well, so even going back to '96, once you knew

10   that Johnny had an interest in buying the place, did you

11   talk to your mother or express any unhappiness with that

12   idea?

13       A     No.     I told Johnny I didn't care.   I expected

14   the proper sale.     I expected appraisals.

15       Q     Okay.     And so none of the siblings other than

16   Johnny had expressed an interest to come back to

17   Lampasas and the only other sibling that was in the area

18   as far as taking care of Edell or helping her with her

19   day-to-day needs was Nancy, right?

20       A     Nancy and I also, and I think Charlene.        I

21   brought -- while daddy was still living -- he had

22   Alzheimer's disease -- I took mother and dad several

23   times to Austin.     I'd come pick them up and take them to

24   Austin.   I took mother to an eye doctor in Austin.          Took

25   her here to Burnet.


                                                                    54
 1       Q    Well, let me ask you about that.       You said you

 2   took her around.    Did you charge her?

 3       A    No.

 4       Q    Never?

 5       A    No.     The only thing I would use her car to

 6   drive up and she would say, Let's use the car, our car.

 7   And so I would use their car.

 8       Q    And you don't remember taking her to Austin to

 9   a funeral and charging her for it?

10       A    No.

11       Q    A guy named Mike Stewart?

12       A    Right.

13       Q    Died in July of 2004.       Are you telling this

14   jury you didn't charge her to take her to that funeral;

15   is that your testimony?

16       A    That's my testimony I did not charge her.

17       Q    Now --

18                    MR. STUBBS:    May I approach the witness,

19   Your Honor?

20                    THE COURT:    You may.

21       Q    (By Mr. Stubbs)       I'm handing you Defendant's

22   Exhibit No. 6.    And I don't know if you've seen that

23   before or not.

24       A    I don't recognize any of this.

25       Q    Okay.     Well, I'll represent to you that it's


                                                                   55
 1   been admitted into evidence and it's actually invoices

 2   that Nancy and her husband submitted to Edell for

 3   helping her.    Is that what that looks like to you?

 4                   MR. RICHIE:    Objection, Your Honor.    That

 5   assumes facts not in evidence.

 6                   THE COURT:    Hold on a second.    This is a

 7   time for a break.    Let's take a l0 minute recess.

 8                        (A break ensued.)

 9                   THE COURT:    Bring the jury in.

10                        (Jury present.)

11                   THE COURT:    You may continue your cross.

12                   MR. STUBBS:    Thank you, Your Honor.

13       Q    (By Mr. Stubbs)      The document that I had given

14   you, and I apologize I forgot the number, but what that

15   shows is that your sister Nancy was charging Edell to

16   help her with day-to-day stuff; do you agree with that?

17       A    I had heard that sometimes that Nancy was

18   being paid by her mother for doing -- coming out and

19   feeding the cattle is what I understood.

20       Q    And so the only sibling, and you would agree

21   with me, that the only sibling that was in Lampasas and

22   available to help her day to day was Nancy, right?

23       A    Yes.

24       Q    And Nancy was charging her?

25       A    Well, she was charging but if you're asking me


                                                                    56
 1   if I have any objections, no.

 2         Q   Okay.   Now, as far as that property goes, the

 3   475 acres, it has a garage apartment on it, correct?

 4         A   I guess you could call it that.

 5         Q   Well, I think that's what it has been referred

 6   to.   I don't know that that's what I would call it

 7   either, but it's a metal building, two car garage, has a

 8   living quarters with bathroom.   That sort of thing,

 9   right?

10         A   That's correct.

11         Q   Who built that?

12         A   I think Johnny and probably some hands.

13         Q   Okay.   So some of Johnny's workers?

14         A   Some of Johnny's workers.

15         Q   As far as you know, he paid for it, he built

16   it, he paid for the labor, all of that?

17         A   I don't know -- if daddy felt like he owed

18   money, he paid.

19         Q   You didn't pay for any of it; did you?

20         A   I didn't pay for any of it.

21         Q   Okay.   And I believe there's a shop with

22   another metal building on the property?

23         A   That's correct.

24         Q   And who built that?

25         A   I think Johnny and some hands did.


                                                                57
 1       Q       Same scenario.       You didn't pay for any of

 2   that; did you?

 3       A       No.

 4       Q       Okay.    And that was -- both of those were

 5   built before Johnny ever owned the property, correct?

 6       A       Yes.    They were built before daddy passed away

 7   back in maybe the 80s.       I don't know for sure.

 8       Q       Okay.    And as far as your mom was concerned,

 9   Johnny never forced her off the 475 acres; did he?

10                      MR. RICHIE:    Your Honor, calls for state

11   of mind of Mrs. Wade, and I will object as speculative.

12                      THE COURT:    Overruled.   I didn't

13   understand the question that way.         I think the question

14   was whether or not she was ever forced off the property.

15                      MR. STUBBS:    That was the question.

16                      MR. RICHIE:    If I may, just for the

17   record, what I understood him to ask was as far as your

18   mother was concerned she was never forced off the

19   property.    That was my objection.

20                      THE COURT:    Okay.

21                      MR. STUBBS:    I'll be happy to re-word the

22   question.

23                      THE COURT:    Rephrase your question.

24       Q       (By Mr. Stubbs)      As far as you know, was Edell

25   Wade ever forced off of that 475 acres?


                                                                     58
 1       A       No.

 2       Q       Not by Johnny, not by Amanda, correct?

 3       A       No.

 4       Q       And I apologize, but just so the record is

 5   clear, you're agreeing with me; is that right?

 6       A       That she wasn't forced off the property,

 7   right.

 8       Q       Okay.    When she fell and went to the hospital

 9   shortly before she passed away, did you ever go to the

10   hospital?

11       A       I did not go to the hospital.     I found out

12   that she had fallen or whatever happened to her, it was

13   on a Saturday that I understood that she fell.       And so

14   we weren't notified until Monday afternoon.

15       Q       And she was still there several days after

16   that and you never went, right?

17       A       The -- what I was told is she just had fell.

18       Q       But --

19       A       It didn't sound as bad as it was.

20       Q       But she was 90-something years old, had fallen

21   and was in the hospital and you knew about it and you

22   never went to see her; did you?

23       A       I had just previously seen her.     The last time

24   I seen her she was at the house and, no, I didn't.          But

25   at that time it didn't seem urgent.      I didn't know she


                                                                   59
 1   might be out in three or four days.

 2       Q    As far as the estate asset, meaning -- I think

 3   you've heard some questions about some personal property

 4   that Edell had, you're not making any claims that you

 5   haven't received anything out of the estate that you

 6   were supposed to receive; is that correct?

 7       A    Could you restate that?

 8       Q    Yes.    It was kind of a long question.   When

 9   I'm talking about personal property I'm talking about

10   any of your mother's belongings or any of any items that

11   you were supposed to receive under the will, you're not

12   claiming that you have not received anything that you

13   were supposed to receive; are you?

14       A    No.    I received what I wanted.   I know I left

15   a few things, but it didn't bother me.

16       Q    And you knew that Johnny and your mother were

17   close, right?

18       A    I suppose so.

19       Q    And they have always been close; haven't they?

20       A    I don't know if they're any closer than we

21   were as far as her thinking about us, I think she cared

22   about us all.

23       Q    Johnny -- you were aware that she went to

24   California to see Johnny and Amanda I think three times?

25       A    I did not think -- I thought it was one time.


                                                                 60
 1   I didn't hear about the others.

 2       Q    You didn't know because you weren't talking

 3   much to her, right?

 4       A    Generally when mother called the house, which

 5   was very regular and the wife would call, they

 6   communicated regularly.    And if I answered the phone

 7   mother would say, Well, did y'all get any rain.    She was

 8   always interested in things like that.    And then, Is

 9   Gwen there?

10       Q    Did you ever make any improvements to the 475

11   acres?

12       A    Could you repeat that again?

13       Q    Yes, sir.     Did you ever make any improvements

14   to the 475 acres that we're talking about?

15       A    Well, from what time?     As a kid I helped daddy

16   fix fences.   I worked on the place.

17       Q    Well, that's a fair distinction.    After you --

18   it's my understanding once you graduated high school you

19   left; is that right?

20       A    I left.

21       Q    So after you graduated high school and had

22   left, did you ever come back and make any improvements

23   to that 475 acres such as the two metal buildings that

24   Johnny did?

25       A    Well, the only thing I did was re-wire the


                                                                 61
 1   house.

 2         Q     When was that?

 3         A     Oh, I guess in the 80s, early 80s.     I'm just

 4   guessing.

 5         Q     So your dad was still alive at that time?

 6         A     Yes.

 7         Q     Did you charge him for that too?

 8                      MR. RICHIE:   Your Honor, I'm going to

 9   have to object to the "too" comment.        It assumes facts

10   not in evidence.

11         Q     (By Mr. Stubbs)      Did you charge him for that?

12         A     If he paid me it was because they insisted on

13   it.     I did it because I wanted to help him.

14         Q     And when you graduated high school, I'm

15   assuming you were about 18, somewhere close to that

16   time?

17         A     I had just turned 18.

18         Q     And you're approximately 15 years older than

19   Johnny, right?

20         A     Yes.

21         Q     So Johnny -- when Johnny was living in the

22   house and you were living in the house on the 475 acres,

23   you would have been basically 15 -- I'm sorry.        16, 17,

24   18 years old, right?

25         A     When Johnny -- when I left home, or?


                                                                     62
 1       Q       Well, you left home when you were 18.      Let's

 2   just say that.

 3       A       Right.

 4       Q       And Johnny's 15 years younger.

 5       A       Right.

 6       Q       So he was zero, one or two basically.

 7       A       He was three years old.

 8       Q       Okay.    And when he -- between the time he was

 9   born and the time he was three years old, is it safe to

10   assume for this period that that's the primary person

11   your mom would be taking care of, right?

12       A       Yes.

13       Q       And you resented the fact that he was the baby

14   and she was taking care of him; didn't you?

15       A       I didn't say that.

16       Q       Okay.    Well, you testified earlier that when

17   Johnny came back to the house and your mom felt like it

18   was uncomfortable, something to that effect; do you

19   remember that testimony when Mr. Richie was asking you

20   about it?

21                      MR. RICHIE:    If you can't hear, Bud, just

22   say, I can't hear.

23                      THE WITNESS:    Well, I'm hearing but I'm

24   not really understanding.

25       Q       (By Mr. Stubbs)       When Mr. Richie was asking


                                                                    63
 1   you questions here just a few minutes ago you were

 2   talking about an event with Johnny when you went and you

 3   were at your mother's house and Johnny showed up and you

 4   said she seemed like she was uncomfortable, something to

 5   that effect, right?

 6       A      Yes.

 7       Q      Well, I mean, it would have been clear to her

 8   that you didn't like Johnny for years, wouldn't it?

 9       A      No.

10       Q      If you're in a room with two people that don't

11   like each other, it's just uncomfortable; isn't it?

12       A      Well, I would think so.    I try not to harbor

13   hate for anyone.     I try to tolerate.

14       Q      So your testimony to this jury is you don't

15   have any ill will toward Johnny; is that what you're

16   telling them?

17       A      I told him just recently I didn't dislike him.

18   I dislike what he did.

19       Q      You don't dislike him.    You have no ill will

20   toward him.      Yet you filed this lawsuit and it continues

21   and we are all here today because of it, right?

22       A      I told him earlier that I want to make a wrong

23   a right.

24       Q      The same wrong that you waited seven years

25   when you could have made it right while your mom was


                                                                 64
 1   alive and she could have come and told this jury, This

 2   is what I wanted to do.

 3          Q   I would not have --

 4                   MR. RICHIE:    Excuse me, Bud.     I just want

 5   to object.   It assumes facts not in evidence about what

 6   Mrs. Wade would have done and speculative.

 7                   THE COURT:    I will sustain the objection.

 8          Q   (By Mr. Stubbs)    You didn't say anything until

 9   after she died, right?

10          A   I didn't know a lot of things until after she

11   died.

12          Q   And since you didn't say anything until after

13   she died, this jury doesn't get to hear from her; do

14   they?

15          A   Well, that's correct.    But I would not have

16   drug her into this mess.

17                   MR. STUBBS:    Pass the witness.

18                   (End of cross examination of Bud Wade.)

19                       KIM GEORGE

20   Having been previously sworn, testified as follows:

21                    DIRECT EXAMINATION

22   BY MS. ALLEN:

23          Q   Ms. George, can you please tell us who you

24   are.

25          A   My name is Kimberly Lynn Higgins George.       I'm


                                                                     65
 1   STATE OF TEXAS          )

 2   COUNTY OF BURNET        )

 3       I, VICKI K. KANEWSKE, Official Court Reporter in

 4   and for the County Court at Law of Burnet, Burnet

 5   County, State of Texas, do hereby certify that the above

 6   and foregoing contains a true and correct transcription

 7   of all portions of evidence and other proceedings

 8   requested by counsel to be included in this volume of

 9   the Reporter's Record in the above-styled and numbered

10   cause, all of which occurred in open court or in

11   chambers and were reported by me.

12       I further certify that this Reporter's Record of

13   the proceedings truly and correctly reflects the

14   exhibits, if any, requested to be included.

15       I further certify that the total cost for the

16   preparation of this Reporter's Record is $3,937.50 and

17   has been paid for by Graves Dougherty Hearon & Moody.

18       GIVEN UNDER MY HAND AND SEAL OF OFFICE this the

19   12th day of May, 2015.

20                    /s/Vicki K. Kanewske

21   VICKI K. KANEWSKE, TEXAS CSR NO: 2159; EXPIRES: 12-31-16

22     Official Court Reporter, Burnet County Court at Law

23      220 S. Pierce Street, Burnet, Texas   78611

24   512-715-5244; Fax: 512-715-5226; Email: Vkaykan@live.com

25


                                                              177
                        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
0   Date:   February 6, 2004
                                               Promissory Note
                                                                                ~COPY
    Borrower:        JOHNNY WADE and AMANDA WADE, husband and wife.

    Borrower's Mailing Address:

                     JOHNNY WADE and AMANDA WADE
                      REDACTEDREDACTEDREDACTED
                         REDACTED
                     Riverside County

    Lender:          EDELL WADE

    Place for Payment:

                     I REDACTED
                     Lampasas, Burnet County, TX 76550, or any other place that Lender may designate in
                     writing.

    Principal Amount:       $500,000.00
    Annual Intereat Rate:          Two Percent (2%)

    Maturity Date:          February 1, 2036

    Annual Interest Rate on Matured, Unpaid Amounts:             Twelve Percent (12%}

    Terms of Payment (principal and Interest):

0          Accrued interest is payable OD the 1• day of March, 2004 and OD the 1st day of each succeeding
    month through February 1, 2006. Principal and interest arc 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
    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 02I04/2004




0
                                                                                          REDACTED
0   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 payable at the Place for Payment and according to the Tenns of
    Payment. All unpaid amounts are 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 perfonnance 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 of protest. 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.

    Application 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 pcnnitt.ed 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 conflicL-1 with any provision of a loan agreement, deed of trust, or
    security agreement of the same transaction between Lender and Borrower, the provisions of the deed of
    trust will govern to the extent of the conflict.



     181323-2 0210412004                                                                                     2




0
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 02/0412004
                                                                                                            3




0
0                                                                                                           EXHIBIT A

    >                     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
      '
       "....
      \




0
     ~      .
    f.'.~;f!,-'       .~ :·:.                                ., . .:; ; ~;~..<   j   •   ~.\        " ;:   •
                                                                                                                    ·~   .
    ·"" ttrf..'!t
           ._,,r..                                      ~;   . : ... ., . '\': : '.-:;         ..              \~   .,. .    ,..~ .
    • :: ..   '
                                             ···.....

0
    · .~. ·




                                     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"Maaqui<lle Cr as thl!I N boundary 1.1.ne • the Chas W1lson·
                  .                      .., Now owne~ b:r Joe ~ A1exande:r aa the East boundary ond 1:.he 11. a.
              ~ial.'-·~~:q;y~')..e,n~,i;~,=-:l;he ' South • .':" i;sal!i~;L~paaaa·. and -Aue.tin: :road the
      . .         ·          ·              · We'e"i""tloundary. 1 con.uinins .16,...acrea,-J110l"a ~111sa.--                           --·---..,,....
                                                                                                                                                    .......
                                being the identical. land conveyed by W1.l11am El.1.is nerry et al to
                                A. H. S:yl.veater by dead dated ?tovem':Jer 8. 1938 ll11icordt1d 1.n Vol.. 07
                                 pages 37b-81 nf the Deed necords of 3urnet County. Texas. to which
                                 instru,.,,ents and the record thereof reference ia here made ror al 1.
                                 pur1,osea.
                                            The ~rantors"V.anue1 Del.hart Sylveatar, Lanora S7lvester ~utler.
                                 Corein Sy1veater Stewart, Cheater Ho~ace Sy1veatAr. and o. Zel1
                                Syl.vester Ph111.ipa and tho grantee Ede11 Sy1vester Tlade are co1lec-
                                 t1va1y• a11 o:r the ch11dren or A. H. 571.veat:er ant1 w11'e Emma
                                871.vester. both deceased. and al.1. are the devi~ees and 1ogateas in
                                 the respective w111a of A. ·H. - Syl.vester and Emllla Sy1veater. both
                                 deceased, and thin conve~ance 1a made !or the purpose or errectuat1ng
                                 a part1t1on and dtlv1a1on or the eatatea o.f the ~aid A. H. Sy1vester




0
                                       .•   .! •




0




0               ·~d-~je.~~a
               THE STATE OP Tl!!XAS I
                                                             a,~- ?K&·r~.
               CC'lUUTY   OF'~                                                                              ,
                          Tlsi.fore nc, t.he undor:o1:snod o.uthor!.ty, " UntRry Publ :..r. tn 11nd
                     rorl(ll>I ~ 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<nowl.ed~ed to me that they eRch o>: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 ..11hos<t ""'"'"s nre 1;11.thac-rihed to tho .f "orei:;oirm; in -
                        3t.rUJ'1l'!nt, anO ac!tnnwledl~ed to me that they . each executed the same
                      .Wa     tab• .   J11••1•••-• < ..d'9e:tU'1ld~tt-cn~~tb.eneJ,.D-:axp,zi....... ~ ... "an~~, \):r~e."1!1•.1.d · .:
                       Me1ba... S7lveater, w1.1'e or the eaid 'Chester ·uorace S71vester, navinc
                      ·beei;i-· exam1.ned by me priv1ly and apart 1'rom her husband, and having
                       the &Bill& 1'ully explained to her, she, the anid Melba Sylvester
                       aclcnow1edced 'such' instrument to be her act and deed, and she de-
                       ollll"od that sho had w1111na1y slg~ed the same for the purposes and
                       consideration therein expressed, rind that she did not winh to re-
                       tract i t .

                       A.    g:~~~~ER             MY     H/\N~v~:.:.:..L              OF   OFFXC~E·
                                                                                               This 26t;!b        d : ; Jana&J7,··


                                                                               Notary      ~~~co!~Texas
                       THE STATE OF TEXAS I
                       COU!n'Y OP        ""1f;uc...j
                       ,o 'Jefore : . the
                      ,..~, •"~""·""~·.
                                                         unrlerni~·ned
                                                               auth<,rlt!•, n ?Totary Puhl!.,. •n and f'n:"'
                                           'J:'o:r.ns, on this day personf\11:." nppe'.l .. nn .-.l1st1n M. Dutl.er
                        on Lanora s:-1vestar :;\L\tler, his wi.te bot>h !: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 '<nown .to ne to
              be the por:ionnhooc. nnT.'18 :So subscriber'! to t.11e .forer.oin-:: "n,.trumont, and
              t
              acl:nowl.ed!';ed to inc t.h~t he exec '. tted the soma for the purpo,.~s and con= '
              s1deration expressed theT'ein, :ind in the cupac'i t-.1 therein s';atod.
              l
                                         fHVEU U:tlDEn UY HAllD            AlTD SE/\L OF OFF·lCE, This       ...2.Rt.b..   da:r or    · aanu~·.
                          A . D. 1'S2..

                                                             "- v. HAA&aurr                                                          e.:tas




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

                               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
                                                                002424

NOTICE 011' CONII'IDENTIALITV RIGHTS; D' YOU ARE A NATURAL Pli:RSON, YOU
MAY REMOVE OR STRIKE ANY OJI' THE FOLLOWING INFORMATION llROM THIS
JNSTRliMENT BEFORE IT IS FILED FOR RECORD IN TRIC PVBUC RECORDSr YOUR
SOUALSECOMI 1: OR tOORDJUYER 1SLJCENSE NUMBER;;

                                                c    o   rusl

                                                    To""'
Dat~n   Fcbtumy 6, 2004
GnmloT;        JOHNNY WADBMd AMANDA WADS. husband IUid will:.

GrauCY.r's Malllug Addreu:

               JOHNNY W ADB and AMANDA WADE

                 REDACTED
Trustoet       Put E. Cl!lvn""s

    '
TrUstee's MaUiug Addreul
               P.O.Bo7!: 409
               Lampas11.s, 'IX 16SSO
               Lampasos County
                                                                 ~   ~~
Lcnder1        EDELL WADE                                        ~
                                                                     a~
                                                                 ~

                                                                   ==
J,.cador'sl\"'aillng AddrO!B:
                                                                 = :il=!
                                                                 ~
                                                                     ;<.0
                REDACTED
                  REDACTED
                                                                 = ,..o
                                                                 ~
                                                                   ~R
               Burnet County                                         ~e~




               D11te: Ft:bruw')' 6, 20D4
               Original princlpld   1>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 a<Lcnd,,..,,        .,,;;;1'\..n
        crnnc nollcc of the forc~:losun:s &Dlc to be given llS pmvlded by the Tcx011
        in effect; and
               c.      pW'Chnso the Property at ony foroclost•rc sale by ofTerfng the hfsbesc t"d and
        then hove the bid credited on the Obligation


                                                                                                                J




                                                                                                                      Jew000179




                                                                                                                              88
        7.      l.cnd~:r may .cmcdy IIJJ)' d~:foull wlthoul waiving iland may wolve any dcR&ult wtlhoul
 waivina P.OY prior or subsequent defwlt

                Nolwhh!narldlng anyth!ng to lhc <:o~tnuy cant.nlnl:d h~:nln o.- l.n tho Noto, prlor 1o
 <mtm:;lslns nny dgh•a or •cm=diM he·~·ur1der or 1111dvr thD Nate (i~~ehullne aeeelerDtleli of lise Uole)
 Lender will glvo Grunter ten days prior wrltteo nolloo IUI;d opportunity to ~rc any defaull In making a
 payment under lho Note, and thirty ih:ys prior writ1en Dotice iUld oppQrtwdl)' to ew-e IIR,Y olh~:r dof11ult
 hom:"'"der or Wider ll:se Nofe. However, witb rciJnrd to any dofnult other thill1 o f.U.tn to make a
 paymtnt under the Note, $UClb thirty day lime period will be extended so long liS Grantor commenced
 to WI"O such do fault during tho Initial thirty da.y period IUid thereafter dillaently pros:ccuttls !Ncb ewe to
 completion.
 C.        Trustcl:e'' Rights aad Dutla


                  ~[\h~:r p!:HIIilnllll) ct b) ag<:iit gi ' ' notico of IJ1e ftncoloswo sale 115 •equlted by !hC' I C:W:ll!l'
 Property Code ns      th~:n i~ ofi'ecl~

        2       sdlnnd convey lliiiN" pnrt ofllv~ Property "AS rs"to lhc Wgha:;t bidder for ewh wilb a
gcncrul warras~ty bindina Orunton, subject tcs tl1e Prior Lien and to tl1c Olher Exceptions to
Conveyt111ec: And Warrnnly Alld without n::prusento.tlon or WIU"Tanty, oxprc~:J t:~r Implied, by TruSlca;
        3        from the     proo~:r::ds   or tho ~uh:, pny, Jn Ud:J ordi;IT-
                 11.        uxpenscs offorc~elt:~aure, Including a rcosonabic commission to l"i"Ustee~

                 b.         10 t.~:nder, tho .fUll amount of princlpnl, lnl~:ro:st. onomcy' s fcea. IIJld other

                           any IUTIOUnts required by law to be pntd before payment to GnuJton; and
                 d.        lo Onmlors,       Pn)'   bolam:c: and

        4        bo indcmniCi~, he!d harmlcs~. wuJ dcfbdcd by Lender against Ill! cosu, CXJII:ID5C.!I, lll"id
liobllitle:J Incurred by Trustee fbr acting In the execution or enforcement of tho IJuJt en:oted by this
deed gf ~nm, which Includes ull counllnd otht!l costs, lru:luding nllomc:y's tees, ineurred by Trastee ln
defense of any a<:tlon or pre~edlng t.ako:n ngelz.'t Tn.lslea In tbllteilp®hy.
D.

          I        If 11ny of the Property Is wid under this deed gf U""USI, Gomtgr:ll rnuSI ~iiii-cly
surn:ndcr possession to tha pureh111cr. If Ornntors fnil to do so, Omntors will b~omtJo-ia t~ nt
llllffcnuu::c of the purehnscr, subjc:ccto WJ oetlon ror fof"Qible dotalnt~r.               '-'-' g~·
                                                                                                                  z~
       2         Rcclsols In any tnlstcc'3 deed conveying the Property will be presumed 10 ~;;;!n
                                                                                                          ~      trfffl
                                                                                                          <;r    aj
                                                                                                                          4




                                                                                                                                .Jew000180




                                                                                                                                         89
         },      Proceeding und~:r this dcod ol WSI, flUng iUII for fbrcel03ure-, or punulng any other
n:ltlcd)' will not tCn91ltute- t1n .;:.!cotion of remedies
        4,     'fhlaliM will rcmah1 superior to llcm ha\clr cnatcd oven lfd1e time ofp11yment of oil or

        5.     If My ponlon of the Obllgution cwmol be IIIWfull)' secUlll:d by dUs deed of trust,
paymcniS wUl be upplicd first IO
                             dis~hnrsc th11t portion

         6.     Omntor" usign 10 Lender oil ~m~ounu payablll' to or received by Omntcrs !Tom
condemnu.tion of Ill! or part of~ Propc:n1y, &om private sale In Ueu of condcmn.o.Uon, and from
dllfllo~ ez~used by public wolits or construction on or near the Property.            Afkr dcductins any
expenses incurrc-d, Including 11t1om~::y's fees lind court and other costs, Lcnd'Cf will either rcl=c any
rem11ining PmOI.lnts to Orantor.o or apply sueh amounts IO reduce lhc Oblig:lllion. Lender w:lll not be
liable tbi ibllwc to collect 01 10 cxetclse dliigcucu In collccdus WI)' socii muouma.
           1.     Chamois IISslgn to Lendc1 ubsolutcl)', nul uni) us "ullutcuil, all picscut aad fUtwo ICnt
Wld other Income 11nd rccoipu f'rom the Propcny Onmt0111 Wlll'l'Wlt the valldlly Wld cnfon:cublllty of
the u.ssignmcnl Omnlol'!l may IU l-ender's licomsee colh::cl n::nt Md ether ineotnO and receipts as long
as Grantor:~ 11rc not in dcfuult wilh respoctto the Obli~ation or this d;cd of trust- Orantora wlllnpply
all rent and other Jneomo and reccipts to payment of the Obllsutlon mnd perfonn1111cv of this deed of
trust, but 1r the rent nnd olher Income und n:colpt!l cl(ccod the amount due wllh rcsptn::t to tho
Obllgotion P.Jid dcc::d of llulllt, Omnlora may n:hdn the:: ~cess 1r OilUlb:inl dcflWit In payment of the
Obllptlon or pcrrfonnunco of this deed of trust, Lender may tcnninate Omnlol'll' lleome to collect rent
ami other income tu~d then 11s Oruntors' agent IIUlY rent lhe Property IU1d collect all rent md other
jncpmc and rct;c!pjs l pnder neither has ggr gssumca any obllga!.lons OS lcs:sor or litRdlord whh respcet
to M)' uceupiiPt of thlll Propeny. Lender may exen:lse L.ond~:r's rights llltd remedies 1111dcr this
pnmlP"'ph whhmll lnkjng pn•scnion or rbc Prnprdy I ,gncfgr wjll Opply gJl mnl nod other lacarne 1111d
reo;"fptr collected undl::r 1blii P~U~~Brllph nut tQ mcpcnlics incurred in exercislns: Lender's ri&hts iVId
remedies 1md then to Gnmtors' obllgatioi1S with respect to tM. Obllgatioti Wld thls deed of lnl.!.t In the
order dctt:nnlnl:d by L·cndcr Lcodur b no1 required 10 11ct WMfcr lhl.s pDragrnpb, and acting \Imler Ibis
plll'tiJP'Uph doca not wllivc Pn)' of Lender's other rights or remedies lfOrPnton bccoma • volunta:r,y or
in'Vcluntary dubtor In biU\kruptcy, L.ct:~der's tlllng 11 proof of elllim in banJcruptc)' will be deemed
~:quiVlllcmtiO the appoinlmc:nt ofp r~lvcr undCI' TtXIlli law.




       9       In flfJ c¥<ml m11y lhls deed oC u-ust secure payment of any debt that may ..... ~·"~
secured by aliun on rual eslmtc or cre111c a lien CJlh.erwisc protlibl!cd by low.
        10     When the contlllll:t roqulre$. slng:\liBr nouns und pronounS' include the plural




                                                                                                              Jew000181




                                                                                                                      90
       II       Tho- term Note lnc:ludes oil C)tleruions, modlllcaticnus, IUid renewol!; or the Nctc and all
111mounu sec:ulred by \IUs deed oftnJsl
         12.     OronlonJ aaree to tumbh on Lender's nquest cvldcnc:c ndsfactocy to Lender Uim uiJ
•mree nnd DSH!lsamM1t' og the Property bgvc been nn(d when due

         IJ.         U OriU110rs tl'ilnsfor any part of the Proparty witboul Lender's priar wr:!Ucn conscm,
Lend~     muy deelnre lbc debt secw~ by this deed of tn1St Immediately payublc and in'roke II:Q)'
nmcdiiCs provided In this d~:ed of !ruse for default. l! the Propcr1Y Is n:~sidcrntlal real property
contllining rower chua iivo dwclllns Wlils or u rn!d~Cnt.hd ma:rndilcturcd home oecuplcd by GrMIOl'$,
ICXcc:ptions to thb ptovlsion IU'C limited to (o.) a subordlr11no lien or encumbnmclll: that docs not: tnmsfer
rf8hts or oocup1111cy of the Propeny; {bl eJeatlon of a purohasc-mofley security lntorcsc for housebold
appliances; (c) trm~sfar by dovl:tc, deuco:nl, or opc~l\on or law on lbc dea.lh of a ta·Onmtor: (d) grant
oro leiiSChold ln\Cr!.!SI of thrq ycars or less wlthi:!Ut M option to purch~; (c) tnuu:fcr 10 o 1pousc or
ctdldnm oi CltWIIOIII 01 between co·G•w•to•s, (f) truusfi::u to 11 tchlllic orGrPJnen en GJUR,BI'$' ~:h=alh;
p.nd (B) l{D1'1!1'1\:r 10 nn Inter vlvQS tru:sl in which Oronton; lli'C Wld remain benlllficlllril!s and occup11.11ts of


                 nals d~cd or trust bi11d!l, benefits, 1111d may be er~forced by tho successors 111 lnu=~~ or


      lS         If Cimnton and Borrowers lli'C rml the stune pcl'llon, the tem1 Ornntors includes
Borrowers
         16      Sub}o:ct to cny riW!t 10 c:urc, Gnmtors and each surety, e~ndorser, and auanmtor of the
Obligollon wnlvc u.ll dl,m'lond fbr poymertl, prcs•::rnlalion for payment, noll~ of Intention to aQCClcn>lll'
mliiW"il)', notice of uecel~tudun of wotuolq, p•otast, IUt<l uoti>w 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




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pl'u-:rRlGGl:l a.nl.l llllJ>l'CIT~PIQnf;G 0 1n /II.V<II" G1' Jlnnnol Dol.bort lt~1vo.,tor unt 1
tho lbftY~ lfiiDCl'1bc.t no\\• an4 all. ln~<>To~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,


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;•jl     )IOJ'Diin• Wh<>•<> '"'"'0" II'J'O .Ub001"J.IIDd tO the r01"11Q:D1R'I Uult..Ur:r~"t,
         •11<1 Pl>l<n<>lfl<>Oo;ad ta,... bhac·ti!<>J' DllOtl axaautod llho ,..., .. ra.- ~he t>Ur-
         J;1::  . ;:~ ~,l!tr:f~:",.}b~:;:•; ..1;"K:;;,~
         o>Uttnlna<l by rna rl"ivll:r 11nl!l apnrt 1'1"0111 h..,r
                                                                       ~: ~u~ou·= ~:,t~~ boan
                                                                       hual:lond, a.nd havlnr, ta.o
         =~~;~!;~,.:":~:~"~ . :~~:;;{ ~"ba ~:,.":!~ ~~~!o~~l.~~t:~"~:!vr
         Cll.GJ'<)d thil.t !Oh01 hll<l "!UinP,l.y olr,nad bha · - fO'J' \bn Jllll'j>OIIVII 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'<T-,
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        rHVIiiiJ UJI'Diilll \.!:{ IIAJIP MID S'IU\I.o 01" of1';TCI!: 1 'l'hh   ~   <I fl;t of       .Junarn.J:· 1




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                                                                                                                 .Jew000188




                                                                                                                          97
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        98
AFTER RECORDING RETURN TO:
Annbrust 1£. BlOwn, L L P.
100 COI"llf'UII Ave, Sulle llOO
Austin, Toxns ?8701
Tol: (512) 415-2325
PllX: (512) 435-2360




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                               100
                     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
                         03-15-00100-CV

 1                      REPORTER'S RECORD

 2                   VOLUME 2 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

12                          MOTION HEARING

13

14

15

16

17

18       On the 11th day of April, 2014, the following

19   proceedings came on to be held in the above-titled and

20   numbered cause before the HONORABLE RANDY SAVAGE, Judge

21   presiding, held in Burnet, Burnet County, Texas.

22       Proceedings reported by computerized stenotype

23   machine.

24

25


                                                                    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. SHELDON "DON" RICHIE

 7               MS. SHELLY D. MASTERS

 8               MS. EMILY SEIKEL

 9                   APPEARING ON BEHALF OF JAMES (BUD) WADE

10

11   LAW OFFICE OF DON E. WALDEN

12   7200 North Mopac, Suite 300

13   Austin, Texas    78731

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

 8                   AND APPEARING ON BEHALF OF AMANDA WADE,

 9                   INDIVIDUALLY

10

11   HILL, DUCLOUX, CARNES & DE LA GARZA

12   400 West 15th Street

13   Suite 808

14   Austin, Texas     78701

15   512-474-7054

16       BY:     MR. CLAUDE DUCLOUX

17                   APPEARING ON BEHALF OF AMANDA WADE,

18                   EXECUTOR

19

20

21

22

23

24

25


                                                               3
 1                    CHRONOLOGICAL INDEX

 2                    VOLUME 2 OF 3 VOLUMES

 3                        MOTION HEARING

 4   April 11, 2014

 5                                    PAGE      VOL.

 6   PRESENTATION:

 7       BY: MS. ALLEN                      8   2

 8           MR. RICHIE                    41    2

 9           MS. ALLEN                     73   2

10

11   COURT'S RULING                        75   2

12   REPORTER'S CERTIFICATE                82    2

13

14

15

16

17

18

19

20

21

22

23

24

25


                                                       4
 1                     P R O C E E D I N G S

 2                    THE COURT:    Okay, after a brief recess

 3   I'm recalling cause number P9127, in the matter of the

 4   estate of Edell Wade.     And based upon an earlier

 5   announcement I'm going to go ahead and begin hearing

 6   arguments.     I understand that we're estimating three and

 7   a half hours today for the hearing.         Does that still

 8   sound reasonable and appropriate?

 9                    MR. RICHIE:    Yes, Your Honor.

10                    MS. ALLEN :    It does, Your Honor.

11                    THE COURT:    All right.    Let the record

12   reflect that counsel has agreed that that sounds about

13   right.     That would put us at -- I assume we will

14   probably be taking a lunch break, but we should be able

15   to finish up then early this afternoon.

16       The first motion I would like to hear is the

17   partial summary judgment on James Wade's action to set

18   aside the sale of the ranch.      Who's going to be speaking

19   on that?

20                    MS. ALLEN:    Your Honor, my name's Kappy

21   Allen.     I'm from Austin.    I represent Johnny Wade and

22   Amanda Wade, individually, not in her executor capacity.

23   Evan Stubbs is co-counsel.      He was not truant, he simply

24   over-committed this morning.      But he has joined us.       And

25   I will be presenting the motion as well.


                                                                     5
 1                  THE COURT:    Okay.

 2                  MR. RICHIE:    And for the respondent on

 3   that motion, Your Honor, for Bud Wade, I'm Don Richie

 4   along with Shelly Masters and Emily Seikel, counsel from

 5   our office.   Before we proceed I would like to remind

 6   the Court that we have objections to some of the summary

 7   judgment evidence that we would like to call to the

 8   Court's attention.

 9                  THE COURT:    All right.   Would you like

10   to go ahead and voice your objection as she is --

11       I assume you have things that you're going to

12   offer?

13                  MS. ALLEN:    Your Honor, it's not so much

14   offer, although they are certainly part of the summary

15   judgment record and we do have a kind of truncated

16   presentation of part of the summary judgment proof that

17   we'll be displaying.   I am happy to proceed any way the

18   Court likes with regard to objections.    That is if I go

19   forward and something is displayed, if there is an

20   objection to it and the Court would like to take it up

21   right then, I'm happy to do that.    I'm happy to make my

22   presentation, agree that by doing that Mr. Richie waives

23   nothing and that he presents his objections when his

24   presentation begins, but any way the Court wants to

25   handle that is perfectly fine with me.


                                                                 6
 1                  THE COURT:    I think what we'll do is I'll

 2   go ahead and let you have your presentation

 3   uninterrupted, and then I'm going to go ahead and let

 4   you voice your objections to the various exhibits or to

 5   the various items that are contained in the motion for

 6   summary judgment, with the understanding and stipulation

 7   and agreement that you're not waiving anything by

 8   allowing her to present her case without interruption.

 9                  MR. RICHIE:     Thank you, Your Honor.

10                  THE COURT:     All right.

11       You may proceed.

12                  MR. DECLOUX:     Your Honor, may it please

13   the Court, just so the court reporter gets my name. I'm

14   Claude Decloux and I entered an appearance a month ago

15   on behalf of Amanda Wade in her capacity as independent

16   executor.

17                  THE COURT:     Okay.   Thank you.

18                  MR. WALDEN:     And my appearance, Your

19   Honor, for the court reporter is Don Walden on behalf of

20   Nancy Burns.

21                  THE COURT:     Thank you.

22       Everybody now that's going to be speaking has

23   announced, right?

24                  MS. ALLEN:     Your Honor, before I begin,

25   if I may, I have a copy of the Power Point presentation


                                                                 7
 1   that we are about to display for all counsel and the

 2   Court.   I also have just a little demonstrative chart

 3   that helps me to be sure I understand who all the people

 4   are and some cases that we have selected from the prior

 5   materials in a very small notebook that I would like to

 6   distribute.   Is this a good time for that?

 7                  THE COURT:   Sure.   Give it to them.

 8                  MS. ALLEN:   Is the Court ready for me to

 9   proceed?

10                  THE COURT:   Yes, you may proceed.

11                  MS. ALLEN:   Your Honor, in light of the

12   Court's earlier comments I'll start a little bit

13   differently than I had planned.     We hired on in this

14   case in March, about March 10 of 2014 after Mr.

15   Bujnoch's very unfortunate demise.    When we did that, we

16   committed that we would make every effort to adhere to

17   the scheduling order that had been entered by this Court

18   in January 2014 and to do everything we could to make

19   sure that as efficiently as possible this case was

20   resolved, either by settlement, or, if needed, by trial

21   on June 9th, as the Court had set aside.    We continue

22   that commitment.

23       To that end, and I did not know Mr. Bujnoch,

24   however by reputation he is all that the Court recalls.

25   I don't mean otherwise when I say that it is apparent


                                                                8
 1   that towards the end of his life he was not quite as

 2   organized perhaps as he might have been.   So there were

 3   some gaps in things that needed to be filled in, some

 4   discovery matters that needed to be tended to.    And so I

 5   had a phone call the day after we were hired with Mr.

 6   Richie to make clear that I did not intend to delay,

 7   that I intended to move forward and that any discovery

 8   matters that needed attention we intended to give those

 9   attention promptly and immediately.

10       At that time I was told that although Johnny and

11   Amanda had been deposed and that Mr. Richie was not

12   there, he didn't really think he needed to depose them.

13   I told him then that it was his decision but he just

14   needed to let me know.   I have not had a request from

15   him to depose them since that time.   But if he wants it,

16   it will happen.   And it will happen on whatever schedule

17   it needs to happen in order for this Court's scheduling

18   order to be observed.

19       We learned on, I think it was early April, we

20   learned that Mr. Bujnoch had made a response to a

21   request for admission that we thought needed to be

22   updated.   We didn't know about it.   It wasn't in the

23   file.   When we learned about it we updated it within 24

24   hours, and we gave it.   So there is an amended response

25   that was done 24 hours after we learned it was needed.


                                                                9
 1   We also found out that Mr. Bujnoch's response to request

 2   for disclosure can't be located.    Even Mr. Richie's

 3   office can't locate it, because he offered to furnish us

 4   a copy.    When we learned that that could not be located,

 5   within 48 hours he had a response, full response, to

 6   request for disclosure.    It's since been updated, and

 7   yesterday was updated in accordance with the scheduling

 8   order to designate experts.    So I want to be as clear as

 9   I can be that if there are things that need to happen to

10   keep this case on track so that it can conclude, we will

11   make every effort to insure that that gets done and

12   believe that we have done so to date.    These two summary

13   judgments that we have before the Court today are part

14   of that effort.

15          When I spoke to Mr. Richie by phone he told me that

16   the last settlement effort that they had had, which is

17   the last one that there's been, was unsuccessful.       And I

18   asked has anything changed that might make it more

19   likely that the case can settle?    And he said it has

20   not.    To that end what we've tried to do are find areas

21   where we believe the law says that there are claims that

22   have been asserted but aren't viable so that we can

23   obtain guidance from the Court as to what it is we need

24   to have discovery about, what it is we need to focus on

25   for settlement purposes and what it is we might need to


                                                                10
 1   try in June.   That's the purpose.   I say that because I

 2   recall the first time I ever presented a motion for

 3   partial summary judgment.   It was to Judge Dietz in

 4   Travis County, and Judge Dietz essentially said, Why are

 5   you wasting my time with a partial summary judgment when

 6   you're still going to have to try to the case?

 7       Here there are very important reasons why partial

 8   summary judgment on the two very focused issues that

 9   were raised not only promote judicial economy in terms

10   of discovery issues and in terms of trial preparation,

11   but also may well facilitate this case getting

12   manageable enough to get our arms around it.     And that

13   is the reason, the primary reason why we have made that

14   approach rather than another approach.

15       At the end of my presentation -- I would turn now

16   to law in fats, because I know that's what the Court is

17   primarily interested in.    But at the conclusion of my

18   presentation I want to also demonstrate to the Court

19   from a practical standpoint what the upshot will be from

20   the granting or denial of the summary judgment on this

21   particular claim, because this is an unusual case in

22   that there are many ramifications that involve many

23   other people and perhaps the Court's time as well.     And

24   I want to be sure that I have explained that so that it

25   makes sense why I'm taking your time with something that


                                                                 11
 1   I know won't dispose of the whole case.      There's a good

 2   reason and we appreciate the opportunity to apprise the

 3   Court of that.

 4       Your Honor, what I have presented to the Court is

 5   just a chart.    I do this for my benefit because I'm new

 6   to the case.     I know the Court is not new to the case,

 7   but just to show who the parties are who are involved.

 8   The coloring, the significance of the coloring -- and

 9   it's just demonstrative -- but the significance on

10   coloring of the chart is this.      Over to the far left in

11   blue there are three Wade siblings.      Those three Wade

12   siblings have announced publicly and in writing that

13   they respect the decisions that their mom made during

14   her lifetime and they do not challenge them and won't.

15                    MR. RICHIE:    Your Honor, I rise simply to

16   let you know I'm going to talk.      I have to object to her

17   arguing outside the summary judgment record.      There are

18   no affidavits from Emma or from Charlie.      There is no

19   summary judgment.    This is true hearsay.

20                    THE COURT:    Well, only in the fact that

21   they have not joined in the lawsuit, so I'll overrule

22   your objection because of that.

23                    MS. ALLEN:    And, Your Honor, I'm now

24   giving background.    I don't mean to say there is summary

25   judgment evidence.    We know that Johnny Wade respects


                                                                  12
 1   his mom's decisions.    Emma Carter wrote this Court a

 2   letter some time ago in which she made it clear that she

 3   respected her mother's decisions and that she did not

 4   wish this dispute to continue.     And Charlene is of the

 5   same mind.     The two in gray I don't know about.    I just

 6   don't know.    Weldon Wade is apparently in Oklahoma.

 7   He's not a party.     To my knowledge he's not hired any

 8   lawyers.   His estate interest is in trust pursuant to

 9   Mrs. Wade's will.     Why that's important is this.    If and

10   before there can be any setting aside of any 2004

11   transaction there has to be full restoration.     A

12   conservative calculation of that is more than 100,000

13   per beneficiary when you consider the principal paid,

14   the taxes paid, the repair and maintenance paid, the new

15   improvements that all these siblings watched Johnny and

16   Amanda build in 2006; when you add all those benefits

17   that will accrue to whoever ends up with the property,

18   that's part of the restoration and it's going to have to

19   be taken into account if this claim is pursued.       Well,

20   Weldon, his entire inheritance is in trust and even the

21   plaintiff's summary judgment evidence shows that Weldon

22   Wade can't pay his own living expenses.     It will require

23   more than Weldon Wade has in trust to set aside this

24   transaction.     And nobody has heard from him that he

25   wants that.    And so the same with Sue, the sister,


                                                                   13
 1   nobody has heard from her that she wants that.       Nancy

 2   has sued but not for that.    Nancy's cause of action is

 3   completely different.    She might have sued to set aside

 4   the 2004 transaction, but she didn't.      She ratified the

 5   2004 because she sued on the note.       So we know Nancy

 6   doesn't want to pay restitution and restoration and have

 7   the sale set aside.     There's only one that has asserted

 8   that claim, only one.    And I'm used to calling him

 9   James.   I'll try to call him Bud.   I apologize for that

10   confusion.     But he is the only one.   And he comes before

11   the Court with two varieties of claims in that regard.

12   Here is one:     I'm in the shoes of my mom, Edell, because

13   that's what the law requires if you're going to assert

14   undue influence and things like that.      Then standing in

15   the shoes of the grantor, and quote unquote, for her

16   benefit.     And so he is asserting for Edell Wade's

17   benefit that she was taken advantage of.      That's one

18   variety of claim he makes.    And here are his complaints.

19   He says, first, I don't think mother wanted to sell the

20   property at all.    Second, I think that the price she

21   charged was not enough.    Third, I don't think that she

22   should have made a loan to my brother to buy the

23   property,    And, fourth, the terms on which she made that

24   loan I don't agree with.     That's what he says. They are

25   too low.     They are not what a bank would have done.


                                                                  14
 1   Those are his complaints.

 2       Now, if you could show the first -- in a nutshell,

 3   Your Honor, and there is, if it's helpful, there is a

 4   copy of that in the notebook.    It's why I furnished it.

 5   I never know how visible these will be, but in a

 6   nutshell, and Your Honor has it exactly right, in 2003

 7   in the presence of other family members -- and it's

 8   undisputed -- Mrs. Wade had a conversation in which she

 9   said to Johnny, I will sell you the ranch if you meet my

10   price which is $500,000.

11                  MR. RICHIE:    Your Honor, I apologize, Ms.

12   Allen.   This is going to be an hour and a half

13   presentation and am I supposed to be asserting my

14   objections as we go?   I'm trying to remember whether

15   they're at the end or -- but we've already asserted in

16   our response objections including the rule against the

17   dead man statute, as it's commonly referred to.     It's

18   the hearsay rule basically under the rules of evidence.

19   But we reassert that with respect to anything that --

20                  THE COURT:    All right.   Unless you have

21   independent corroboration I will have to sustain his

22   objection as far as the conversation that took place

23   between Johnny, Amanda and Mrs. Wade where the

24   discussion was, You meet my price.

25                  MS. ALLEN:    Your Honor -- I'm sorry.   Did


                                                                 15
 1   I interrupt the Court?   I apologize.

 2                  THE COURT:    No.   I'm -- he has objected

 3   under the quote unquote dead man statute to your

 4   statements to the Court as far as what was said between

 5   the decedent and her son during the supposed negotiation

 6   for the sale of the ranch.    So what I'm saying is I'm

 7   going to have to sustain his objection unless you have

 8   independent corroboration in order to get around the

 9   dead man statute.

10                  MS. ALLEN:    Your Honor --

11                  MR. RICHIE:    It's independent

12   corroboration by a disinterested party.

13                  THE COURT:    That's basically true, yes.

14                  MS. ALLEN:    Your Honor, you will see that

15   there is independent corroboration from Pat Cavness as

16   we walk through the summary judgment evidence.     I really

17   understood that was one reason why Mr. Richie would make

18   whatever objections -- and by the way, I think that if

19   he wants to make them he better have filed them.

20                  THE COURT:    Excuse me just a second. I

21   don't recall seeing Mr. Cavness's deposition in the

22   file.   I do recall later other attorneys involved in the

23   case, but in fract there was something said I believe by

24   Mr. Cavness that he had received a call from Mr. Bujnoch

25   and that he was asserting attorney/client privilege in


                                                                 16
 1   behalf of his client, and therefore don't answer their

 2   questions.

 3                   MS. ALLEN:   Your Honor, let me explain

 4   what's in the record, and although I can't respond to

 5   what went on in the past -- what's in the record is the

 6   affidavit of Nancy Burns.    She went to Mr. Cavness's

 7   office and got a copy of all of his files and attached

 8   them to her affidavit saying, This is a copy of the file

 9   that I got from the lawyer Mr. Cavness.     And that's what

10   we rely on is her affidavit and her materials that she

11   said she obtained from him.     That's what we're using.

12   And if we could just skip for a moment -- one more.

13   Right there.     This is what's attached.   If I may, Your

14   Honor, because it's so -- there's also a copy in the

15   Court's notebook, but if I may, these are the notes of

16   Mr. Cavness according to Ms. Burns.    January 6th, 2004,

17   everybody takes the position that Mr. Cavness was Mrs.

18   Edell Wade's lawyer.    And, Your Honor, when I say "Mrs.

19   Wade" I mean Mrs. Edell Wade.     Everybody takes the

20   position, and I think rightly so, that Mr. Cavness was

21   her lawyer.    And at a meeting that Ms. Burns attended

22   here was the discussion.     There was going to be a sale,

23   that it was going to be to Johnny and Amanda, that it

24   was going to be this property, 475 acre ranch.     Here's

25   the part that's hard to read.     Oh, and to respond, Your


                                                                 17
 1   Honor, to a question you raised earlier, I didn't see

 2   about the cattle.    Here it is.   Bill of sale on cattle,

 3   equipment, tractor, post hole digger, chisel, hay cubes,

 4   et cetera.   It's right there.     And we'll see it later in

 5   the closing document.    But we see it first from Mr.

 6   Cavness.   He says the price one-fifty plus three-fifty,

 7   which they're internally allocating for capital gains

 8   reasons, he says that there's going to be a loan, that

 9   it's going to be 2 percent -- it's hard to read, I know.

10   It's going to be 2 percent interest payable monthly on

11   the first day of the month for two years.      Thereafter

12   it's going to be principal and interest, 2 percent, 30

13   years, over 30 years, full right to prepay.      Those were

14   the deal points as he understood them and he recorded

15   them.   That the buyer would pay taxes, of course, and

16   seller is basically to get the life estate, the right to

17   stay there the rest of her life, as long as she wants.

18   And that was part of the deal.     And so these are Mr.

19   Cavness's notes of what his client and her

20   attorney-in-fact, Mrs. Burns, explained were the deal

21   points of the transaction.

22       Now, what happened to that?      On January 16, 2004,

23   Mr. Cavness prepared documents that he sends out not for

24   review, but signature.    He says, You sign these things

25   that I just did.    I'll have my client sign them and I'll


                                                                 18
 1   record them.    Okay.     You know -- we know he would not

 2   have done that had he not been persuaded that his client

 3   wanted this deal.       He would not have done it.   And this

 4   document looked exactly like his notes said they were

 5   supposed to.    There was a deed from Mrs. Wade to Johnny

 6   and Amanda that talked about a note.       It talked about a

 7   note of $500,000, just the right amount       It was going to

 8   be secured by a lien, a vendor's lien and a deed of

 9   trust lien.    There was a promissory note.      The lender,

10   no secret, was Mrs. Wade.      It was 500,000.   It was 2

11   percent.    It matured 30 years after the two years so

12   236.    It had the same terms as in his notes, accrued

13   interest payable for two years on the first day of the

14   month and prinicpal and interest thereafter, and it had

15   the right to prepay and it had security in the form of a

16   vendor's lien ande a deed of trust to Pat Cavness,

17   trustee.    That's what he was ready for Mrs. Wade to

18   sign.

19          May we see the deed of trust.

20          He did a deed of trust.    The trustee, Pat Cavness.

21   Lender, Edell Wade.       No secret that it's a loan.   No

22   secret that it's 500,000.      No secret who the borrowers

23   are.    No secret what the maturity date is.     All of these

24   things are consistent in eery respect with the

25   recitation that Mrs. Wade said, This nisd my price.          And


                                                                    19
 1   if you believe Mrs. Burns when she says when we were

 2   there Pat Cavness said, Now, you know this might not be

 3   full market value.   It was after that that Mr. Cavness

 4   went right ahead, surely at his client's instruction,

 5   and prepared documents for her to sign that he thought

 6   reflected the deal that she intended to make.

 7                  THE COURT:   Did she subsequently,

 8   according to your position, strike the requirement of

 9   the life estate?   Because I noticed in some other

10   closing documents that were drafted where Amanda Wade

11   made notation, No life estate.

12                  MS. ALLEN:   She did not.   And there is

13   one.   I'll skip to -- right here.   Here's Cavness's

14   closing agreement and it has the part about seller

15   remaining in possession as long as she wishes.      That was

16   the deal.   And I call it a life estate because everyone

17   intended and expected she would live there for the

18   balance of her life, and she did.    There was a need to

19   have another law firm actually complete the

20   scrivenering, the Armbrust & Brown firm.    I have and am

21   fully prepared to show the Court if needed not what I

22   think about it, but the testimony in the record about

23   why that happened.   The why it happened is that Mr.

24   Cavness made an ugly remark that Mrs. Edell Wade didn't

25   appreciate.


                                                                20
 1                    THE COURT:    I thought it was his wife

 2   made the statement.

 3                    MS. ALLEN:    The testimony in the record

 4   which is what I'm going to try to stick rigidly if I

 5   can, the testimony in the record is that Nancy reported

 6   to her mother that Mr. Cavness had made an ugly comment

 7   and that Mrs. Edell Wade did not appreciate the ugly

 8   comment and did not wish to complete the deal with Mr.

 9   Cavness.    That testimony is cued up and the documents

10   that go with it are cued up.      I don't belabor that now

11   because it's beside the point, but if you hear in a

12   minute the suggestion that Amanda Wade fired Mr. Cavness

13   because he would not make changes to the documents, that

14   is a fabrication.     You will see no testimony to that

15   effect.     And I will, when I -- if I am permitted a

16   chance to come back I will show the testimony itself and

17   the documents that go with it.      And we know that that's

18   true, that is that it was a scrivener effort by the

19   Armbrust firm to finish out the documents.      We know that

20   simply by comparing them.

21       May we back up to the first comparison where we can

22   look at the warranty deed of Mr. Cavness's.      The

23   warranty deed as it were scrivenered by the Armbrust

24   firm.     And it's the same.   In the respects that Mr. Bud

25   Wade wants to complain about price, loan, that she sold


                                                                  21
 1   it at all, that it was 2 percent; all these things are

 2   the same in all respects.     They just had someone else

 3   finishing up the paper work and those documents were

 4   signed and recorded.    There's the stamp.    You'll see

 5   they're recorded March 3, 2004.

 6       May we skip to the next -- well, in fact, here's

 7   the signature page on the deed and here's what you see.

 8   First, Mrs. Wade signs in Lampasas of course.      And her

 9   longtime, trusted CPA, Lorilee Graham, takes her

10   acknowledgement.    And of course, that means something.

11   I acknowledge I executed this for the purposes and

12   considerations herein expressed.     It's meaningful.      Mrs.

13   Wade's CPA is with her.     They sign it, execute it,

14   acknowledge it.    Johnny and Amanda aren't there, haven't

15   been there.    They're in California.    They're moving from

16   California, but they're not there.       This is all done by

17   mail.     Someone else -- I think I know who -- took Mrs.

18   Wade to her CPA's office to finish this up.

19       Here is what shows us March 3rd, 2004, recording in

20   the Burnet -- I'm sorry, in the official public records

21   of Burnet County, Texas.

22       May we look at the next -- promissory note.

23   Cavness promissory note.     Armbrust.   They're the same.

24   The lender, the borrower, the amount, 2 percent, 2

25   percent     They change here because it had been a month.


                                                                  22
 1   It wasn't January 1, 2036.      It was February 1, 2036.

 2   They delayed a month that they did not think they would.

 3   So there is a little bit of change in payment schedule.

 4   But the terms are the same.       Principal -- I mean

 5   interest payable for two years.       Principal and interest

 6   thereafter.     It's 2 percent.    It's secured.     And look

 7   here, Armbrust, did they make themselves the trustee?

 8   No, they did not.     Pat Cavness, trustee.       They carry

 9   forward all of his deal points.

10          Let me see the deed of trust.    No, the --

11          The promissory note and the deed of trust, grantor,

12   the same.     The trustee, still Pat Cavness.       They make

13   themselves trustee.     And it's still Pat Cavness, by the

14   way.    The lender, Edell Wade.     Edell Wade.     Here's the

15   note.    Here's the amount.     Everything that is being --

16   and recorded March 3rd, 2004.       So complained about mama

17   didn't want to sell it.       That can't be a surprise.        Mama

18   shouldn't have made the loan.       That's not a surprise.

19   Mama shouldn't have made it on the terms that she did.

20   Her lawyer documented those terms.       Her accountant

21   notarized her signature.       All of the things that are

22   complained about were either actually known or

23   irrebuttably constructively known on March 3rd, 2004.

24          The Court asked a moment ago this question, and I

25   might not get it exactly right.       But the question is, is


                                                                      23
 1   it a question of fact that you didn't investigate -- I'm

 2   not sure I've got the Court's question just quite right,

 3   but that was the topic.    The answer is in this cass, No.

 4   Here's why.    First of all, the difficulty here is I'm

 5   having to pretend that Mrs. Wade didn't know what she

 6   was doing because everything tells us that Mrs. Wade

 7   knew exactly what she was doing.    Her lawyer and her

 8   accountant wouldn't have done what they did if they had

 9   thought otherwise.    So we pretend that Mrs. Wade didn't

10   know what she was doing.    She had the advisors there who

11   did and her attorney-in-fact who did.    And was told to

12   the effect of you ought to maybe check out this price

13   because it might be below market value by her lawyer.

14   And her decision was, This is what I want to do.    There

15   is nothing inconsistent with that at all.    So I'm having

16   to pretend that Mrs. Wade ought to have discovered the

17   terms of a transaction that she, by all accounts,

18   intended to do and signed off on just shortly after

19   February 6th, 2007.

20       In Texas the law is that for a grantor the cause of

21   action to set aside a deed that a grantor signs, you're

22   presumed to know what you signed and it accrues the day

23   you sign it.    So it accrued shortly after February 2004.

24   Even if we indulge the fiction, and it is a fiction,

25   that whose knowledge matters; is it Bud Wade's


                                                                24
 1   knowledge?     That is not whose knowledge matters, by the

 2   way.    He is standing in the shoes of his mom for this

 3   purpose.     But let's pretend for a moment that that's

 4   what's important.     First, is this something that is

 5   inherently undiscoverable?    Because that's the only way

 6   you ever get to the discovery rule to start with.         The

 7   discovery rule only applies to something inherently

 8   undiscoverable, and that is a question of law.

 9          Here, in the cases that we furnished to the Court

10   -- in particular those cases at the last three tabs of

11   the notebook, tell us that when something is of public

12   record, and it has all the information you're

13   complaining about in it, it is not inherently

14   undiscoverable as a matter of law.       No discovery rule.

15   So that doctrine does not apply at all.       But even if it

16   did, in Texas when it's recorded you have irrebuttable

17   constructive notice.     And that is the same as actual

18   knowledge of what's in it.

19          Now, if it didn't address the complaints that he

20   was making it would be a different story.       But it

21   addresses all of the complaints that he is making.        Yes,

22   she sold the property even though he said she didn't

23   want to.    Yes, she made a loan.   Yes, she sold it for

24   $500,000.    Yes, it was at 2 percent.     All of those

25   things are available.    He says in his discovery


                                                                     25
 1   responses that in March, 2004, that -- and I think the

 2   way he says it is that he attempted to investigate the

 3   sale through his sister, Nancy.

 4                   THE COURT:   Through who?

 5                   MS. ALLEN:   His sister, Nancy.

 6                   THE COURT:   Nancy.     Yes.

 7                   MS. ALLEN:   Yes.     That's his

 8   interrogatory answer.   So we know he's at least curious,

 9   and obviously it was of concern to him what the price

10   was because he's complaining about it now.         He says, I

11   tried to investigate it starting in March of 2004 with

12   Nancy.   He also says later, still in 2004, his mom, Mrs.

13   Wade, called up Bud's wife, Gwen, on the phone and told

14   her, I sold the ranch to Johnny.       He says his mom didn't

15   volunteer details.   Didn't say whether or not they

16   asked.   Didn't volunteer details.      But no secret.    And

17   again this is evidence of somebody who knew what they

18   were doing and intended to do it.       Even later in 2004

19   calling Gwen.

20       Now, all of this time, starting from the time these

21   documents get signed, Johnny and Amanda Wade are making

22   payments.   Those payments are going into Mrs. Wade's

23   account and Mrs. Wade is using them to buy CDs that

24   later get distributed to these folks when she passes

25   away.    Well, why is she doing that?     It makes perfect


                                                                     26
 1   sense to me.   One, she's worried about Weldon.   She sets

 2   his up to be in a trust because he can't pay his living

 3   expenses.   Weldon has no need for one-seventh interest

 4   in her Lampasas ranch.   He needs cash flow.   And frankly

 5   so does she because here, as in Travis County, cattle

 6   operation net revenues have negative in front of them.

 7   So she's able to turn that ranch into a steady, solid,

 8   dependable cash flow, and --

 9                  THE COURT:   Let me stop you right there.

10   If Johnny bought the cattle, why was she paying for the

11   feed?

12                  MS. ALLEN:   She was not.

13                  THE COURT:   I thought you just said that

14   she paid -- that's what the money was being used for,

15   the monthly payments were being used to buy cattle feed.

16                  MS. ALLEN:   I am not speaking up, and I

17   apologize, Your Honor.   The monthly payments were used

18   to buy certificates of deposit.

19                  THE COURT:   Okay.

20                  MS. ALLEN:   That then were distributed

21   after her passing --

22                  THE COURT:   Yes.

23                  MS. ALLEN:   -- to all of the siblings.

24   So what wasn't generating any income for her, that

25   ranch, and it was just generating expense, she turned


                                                                27
 1   into an income stream that she then used to buy

 2   certificates of deposit and to make sure Weldon had

 3   enough money to take care of himself.    And those

 4   ultimately got distributed.   But the point, only point

 5   I'm trying to make here is that Mrs. Wade, from the time

 6   that the note got signed, Johnny and Amanda made the

 7   payments exactly as they were supposed to under the

 8   note.   And in fact later in 2004 they sold their

 9   property in California and made a $150,000 prepayment to

10   Mrs. Wade which she turned into a certificate of

11   deposit.   That's in the summary judgment record.    That

12   got distributed to the beneficiaries after her death.

13       And so all of this time Johnny and Amanda are

14   making the payments and Mrs. Wade is accepting the

15   payments, and it makes perfect sense why.     So that is

16   all happening in 2004.   Now, in -- and I'm sorry.     I'm

17   going to get back on the microphone.     I may be losing my

18   voice a little bit.   So all of that is known during the

19   2004 timeframe.   All the records are public.    There is a

20   phone call about the sale to Gwen.     Mr. Bud Wade says

21   he's trying to investigate.   But you know what he

22   doesn't do, not in 2004, not in 2005, not in 2006, not

23   in 2007, not in 2008, not in 2009, not in 2010, he

24   doesn't ever talk about it or try to talk about it with

25   his mom.   He doesn't ever try to talk about it with


                                                                  28
 1   Johnny or with Amanda.    He doesn't ever try to talk

 2   about it with Pat Cavness.    He doesn't ever try to look

 3   in the public records, which we know he knows how to do,

 4   because he did later.    That's how he found the documents

 5   that upset him.    So we know he knows how to do that.         In

 6   none of those years did he do any of those things.        No

 7   time when it might have made a difference to his mom if

 8   there were really something bad going on did he do

 9   anything.

10          His mom passed away August 14, 2010.   He still

11   didn't do anything.     During 2010 to 2011 he received

12   more than $84,000 in distributions from these

13   certificates of deposit that had been funded in this

14   way.    He knew where they came from because he got the

15   accounting and the inventory that said so.     And he

16   accepted them.    He still has them.   And he hasn't even

17   offered to return it.    He accepted the benefits of the

18   ranch sale, and it was only when the last distribution

19   was done that he decided that he would file suit.        And

20   he decided to file suit for the benefit of Edell Wade.

21   Not during her lifetime when it might have mattered, but

22   only after she had passed away and he wouldn't incur her

23   wrath, only after he had gotten all the distributions

24   from all of the note payments.    It was not until then

25   that he says that he wants to sue his brother Johnny for


                                                                    29
 1   the benefit of his   mother.    He also says he wants to

 2   sue for his own benefit, which is the case under a claim

 3   of tortious interference of inheritance.     What that

 4   means is that he is saying, Back when mom sold the ranch

 5   she really didn't have the right to do that because I

 6   was expecting to get it.     I was expecting to inherit it.

 7   And Johnny stepped in the middle of all of that and

 8   bought the ranch and I didn't get it.     And that's

 9   tortious interference.     That's what this is about.

10   That's his claim.    He knew that his mother sold the

11   ranch in March of 2004, and I'm betting he knew it

12   earlier, but it is undisputed that he knew it in March

13   of 2004.   He did nothing.

14         The Veltmann case that is the last case in the

15   notebook I've provided to the Court has a very helpful

16   explanation in it of why the statute of limitations in a

17   case like this is especially important and why even

18   though it might feel like justice isn't being done, it

19   is.   The reason is because our law does not allow people

20   who know that they have a complaint and who know how to

21   find out whether they really do, whether there is really

22   something wrong, we don't let those people wait until

23   the witnesses have passed away, the evidence is lost and

24   people can't defend themselves.     That's not justice.

25   That is why we have the statute of limitations.        There's


                                                                 30
 1   not a fact issue here as to whether or not Mr. Bud Wade

 2   ought to have investigated or is charged with having

 3   investigated.   Even if it were his claim, two questions

 4   that have to be decided are questions of law.

 5       Now, I digress just for a moment to address

 6   something else that the Court raised a little bit

 7   earlier, and that is that it's accurate that back in

 8   August of 2011 Nancy burns, in her lawsuit on the note,

 9   she is suing on the note, she's ratified the deal.       In

10   her lawsuit on the note she raised the question about

11   was it all paid in 2011.     What the summary judgment

12   evidence shows us is that in September 2012, September

13   27, 2012, the estate's independent accountants rendered

14   their report to the Court.    And at that time they

15   confirmed exactly what the note balance was, just what

16   we thought it was, as of the date of death.     It

17   confirmed that.   And they confirmed in Schedule 8, that

18   during the time of administration all of the payments

19   have been made and so the note was current through

20   September 10, 2012, for sure, according to these

21   accountants.

22                   THE COURT:   What about the 81,000?

23                   MS. ALLEN:   They had accounted for it and

24   I will -- what happened, Your Honor, is that in a

25   deposition in 2011, there were requests made for


                                                                   31
 1   particular checks, it happened it wasn't all the checks

 2   that accounted for the payments, it so happened.        Nobody

 3   realized that, and so at the deposition the parties

 4   weren't able to reconcile it in 2011.

 5                    MR. WALDEN:    Your Honor, I need to

 6   interject on behalf of my client.      That's not accurate.

 7   I was the one taking the deposition.       I'm Don Walden on

 8   behalf of Nancy Burns.     And the deposition transcript is

 9   here.     It was pointed out to Amanda Wade that there was

10   an $80,000 discrepancy and she said she had

11   documentation for all of the payments.      And I asked if

12   she and her attorney, Mr. Stubbs, who is here today,

13   could provide those documentation to me.        It has been

14   two years and eight months and I have gotten zero.

15   Nothing.    There was no reconciliation of anything during

16   the deposition, and the transcript is part of the

17   record.

18                    MS. ALLEN:    May I proceed, Your Honor.

19                    THE COURT:    Your response?   Does this

20   accounting provide that?

21                    MS. ALLEN:    This is the estate's

22   accounting that was provided to everybody, and so I

23   guess the short answer to the question is have I seen

24   the backup documentation?      Yes.   Is it in Mr. Bujnoch's

25   documents produced?     Yes, sir, it is.   Have I personally


                                                                   32
 1   updated the production since that time to account for

 2   all of the payments since the date of the accounting?        I

 3   absolutely have.    And I've got it with me.   But they do

 4   too.

 5                  MR. WALDEN:    I have never been -- it was

 6   August 4th, 2011.     It has never been provided to me, at

 7   least in any format that indicates that this is what

 8   this is.   If it's something that's been buried in a

 9   larger document production, I would like for them to

10   point it out to me.     I have been waiting for it since --

11                  THE COURT:    Go ahead and turn it over to

12   him now so that he can have a chance to look at it

13   before he gets up to argue.

14                  MR. RICHIE:    I believe the accountant

15   started with the balance at the date of death, in other

16   words, the modification that already was missing, the

17   80,000, they have not explained or produced anything to

18   explain or to prove that there was a debt forgiveness of

19   30 or what happened to the other 49,000-some odd.

20                  THE COURT:    Well, I recall in reviewing

21   the deposition that there was the issue at that point as

22   far as whether or not there was an explanation of a

23   $30,000 gift or discussion regarding a $30,000 gift, but

24   that didn't cover the entire $81,000.

25                  MR. RICHIE:    There wasn't any proof of


                                                                 33
 1   the $30,000 gift.

 2                  THE COURT:    I understand that.

 3                  MR. RICHIE:    The accountants started with

 4   the modified amount, which is already $80,000 down.

 5                  MR. STUBBS:    Evan Stubbs for the record.

 6   At the deposition with Mr. Walden I was present.       Just

 7   so it's not misled to the Court, relatively soon

 8   thereafter we went to a mediation.     We thought that the

 9   case was settled.   I don't know what happened after that

10   point but to represent that this was requested and then

11   was never provided is a little bit inaccurate from the

12   standpoint of -- not that it was not requested, and as

13   to whether or not it was provided, I don't know.       Ms.

14   Allen would have to be able to show that.     But we did

15   think the case was settled, therefore the need --

16                  THE COURT:    According to Ms. Allen,

17   you've got the records.     I'm just saying go ahead and

18   turn it over to them.

19                  MR. WALDEN:    Your Honor --

20                  MS. ALLEN:    If I may, it will be in two

21   pieces.   One, we did not bring along July 17 of 2013 --

22   and I believe at the Court's request Mr. Bujnoch made a

23   report to the Court that identified every single thing

24   he produced and these checks up to that point are here.

25   They're on his list and they were produced.       I am just


                                                                   34
 1   about to find for Mr. Walden the email by which I sent

 2   he and Mr. Richie the other checks.       So I'll be happy to

 3   find that.   But the long and short of it is I'll have to

 4   tell you, Your Honor, after three years of litigation,

 5   three years of litigation, and according to Mr. Richie,

 6   to my astonishment, on his part only, $280,000 of

 7   attorney's fees, if there was something wrong with the

 8   accounting on this note --

 9                  THE COURT:    Excuse me.    What?

10                  MS. ALLEN:    Mr. Richie says he has

11   $280,000 in attorney's fees in this file.

12                  THE COURT:    In this case?

13                  MS. ALLEN:    Yes, sir.    And if I had done

14   that I would know for sure where all those checks were.

15                  MR. RICHIE:    And I do know.    Hopefully

16   have been provided.    Does not account for the $80,000

17   that is in discrepancy between the note balance on the

18   date of the modification and the amount of the original

19   amount minus the payments that were made.

20                  MS. ALLEN:    Your Honor, I'm happy to try

21   -- I invite them to try here on June 9 the questions

22   about the note modification.    That is fine.      I'm happy

23   for them to do that.   We will then try his foreclosure

24   claim that he has just raised, that's fine.        But as to

25   this 2004 ranch sale, there is no reason why this


                                                                    35
 1   plaintiff could not have raised his complaints.        He

 2   hired Mr. Richie at one point.      He could have hired Mr.

 3   Richie much earlier when it might have mattered to his

 4   mom.    He didn't do it.   And that is why the law says he

 5   doesn't get to complain now.

 6          I endeavor to show the Court, because I believe it,

 7   that I'm not asking the Court to rule on a technical

 8   defense so that I can hide behind it for something that

 9   was done that was wrong.      We'll try that note

10   modification June 9, and I'll be happy to.      But that

11   2004 land sale needs to be put to rest.

12                   THE COURT:    I understand the difference

13   between the two issues.      But you're saying that that

14   document you have in your hands right there explains the

15   $81,000 discrepancy?

16                   MS. ALLEN:    Your Honor, what I'm saying

17   is this document identifies Mr. Bujnoch's production

18   very specifically so we have, up to a point, very

19   specific identification if there is a discovery

20   question.    They ought to know.    They ought to have an

21   accountant who can say I have gone through all of this

22   and here's what missing.      I would if I had spent

23   $300,000 in this case.

24                   MR. WALDEN:    Well, Your Honor, I've done

25   that.    That is why I pointed out the discrepancy.         It's


                                                                    36
 1   the fiduciary's burden to document every expense.        If

 2   it's part of Mr. Bujnoch's big long index, I would think

 3   the way to do it if they actually found the checks they

 4   have not provided in discovery which led me to conclude

 5   there is a discrepancy, the way to do it would be, Here

 6   Mr. Walden.   Here are the checks that account for this

 7   other $80,000 or this other 50.     We know there is

 8   nothing to document.     They allege a gift of 30 that

 9   Amanda Wade testified to, but Johnny Wade testified he

10   didn't know about.     But if there was -- if they were

11   going to come up with $50,000, the way to do it would

12   have been, Don, here it is.     Here's the other $50,000.

13   If it's buried somewhere in some other discovery I hope

14   they'll point it out to me like a fiduciary would.

15                  THE COURT:    Well, let's move on with your

16   argument.   We'll come back.    I assume that one of the

17   issues still left on the table is the discrepancy in the

18   note and whether or not the note -- let's assume if for

19   instance I rule in your favor on the limitations issue

20   on the sale of the ranch, you still have a lot of

21   discrepancy between the parties as far as the note, the

22   second note, the one that reduced it to zero percent,

23   and the principal balance.     These are all things that I

24   don't know know whether or not there has been adequate

25   discovery but I'm going to make sure that there will be


                                                                   37
 1   as far as making sure that your position is known to

 2   them.    And if you've got the checks, then produce them.

 3   If you don't have them available, then explain why you

 4   don't.

 5                    MS. ALLEN:   Your Honor, they will have

 6   the checks before they leave this courthouse today.

 7                    THE COURT:   Okay.   Good.

 8                    MS. ALLEN:   And I will be happy to -- in

 9   fact, that is one of the reasons that I have not sought

10   summary judgment as to the modification.        That's one of

11   the reasons that issue has been left to set aside.           I

12   chose the issues that the law was clear on and the facts

13   were clear on.    And there are two of them.

14       In this 2004 land sale here's why.         Here's why it's

15   important.     You've seen the parties, how many of them

16   there are.     We know they don't agree.      We know they

17   don't.   These two over here don't agree.       One of them

18   has ratified the transaction.     One of them wants to set

19   it aside.    Well, if we go forward on a claim to set

20   aside this transaction there is no way it can go without

21   Mr. Bud Wade joining everybody else.       They have to be

22   here because they're going to have liability for

23   restoration in the unlikely event it got set aside.              And

24   I just did, while I was sitting here, I mean, a napkin

25   calculation.     Just looking at principal and ad valorem


                                                                       38
 1   taxes and repair expenses, that sort of thing, it's more

 2   than $115,000 each of benefit that has been paid over --

 3   it's been a long time that it's been paid, that people

 4   have sat by and watched them do.     That all has to come

 5   back, it all has to come back from all of them.     So

 6   they're all going to have to become parties.     And a lot

 7   of them don't want to.     They don't challenge the sale.

 8       With regard to Weldon Wade, it almost is frankly a

 9   violation of the in --- I never say it right, in

10   terrorem clause.     Because it was Mrs. Wade's intent that

11   Weldon have income, and we're about to now undo that.

12   So that may well be a violation of that, that Weldon's

13   representative needs to tend to.     Well, guess what?     The

14   trustee is Amanda Wade, and we know she can't do

15   anything without somebody complaining about it.     So

16   we're going to have to have an ad litem for Weldon for

17   all of those claims that Weldon might have so they can

18   get tended to.     We're going to have an issue about

19   responsible third parties if Nancy, having the power of

20   attorney, was with Mrs. Wade when she did this deal and

21   it's now shown that it shouldn't have been done, that it

22   was undue influence, that it was fraud, that it was

23   something, she's got responsibility.     If Mr. Bud Wade

24   was involved in it, he's got responsibility.     And so for

25   all these beneficiaries' sake they would have to be


                                                                 39
 1   named and tried as responsible third parties.    Those are

 2   issues that we have if we don't get the claim disposed

 3   of.

 4         And finally -- and it is what I do for a living,

 5   but I'm very mindful that this is not a case that

 6   involves Texaco and Exxon.    It's a family.   And they

 7   don't have unlimited resources and they don't need to be

 8   spending them like this.     And if we can try only those

 9   issues that we really legitimately need to, we don't

10   need a bunch of appraisers and we don't need a bunch of

11   accountants -- we need some accountants, but we don't

12   need a bunch of appraisers.    We don't need other people

13   to testify about value and use of property.     We don't

14   need experts on repair maintenance expenses.     We don't

15   need to tally up restoration and have experts about that

16   and discovery.   So we don't need all those things.

17   Your Honor, if the Court is persuaded that we do, then I

18   respect that and I will be ready and I will do whatever

19   is required to maintain the schedule that the Court

20   needs to keep.

21         But in this instance both facts and the law mandate

22   that this claim to cancel transaction after eight years

23   of being quiet on purpose and knowing and taking the

24   money, that can't be sustained.     So we, if we can

25   conclude that we don't need to try it and we don't need


                                                                 40
 1   to have discovery about it, then we can focus on what we

 2   really do need to try, have discovery about it if there

 3   are things, and that's all that this motion is about.

 4       So with that, I think I'll conclude.        And if the

 5   Court would allow it, might I have a brief response

 6   after the presentations.

 7                    THE COURT:     Well, what we'll do is it's

 8   about ten minutes till 12.      I don't know if you all

 9   would like to work on into -- in other words I'm more

10   than happy to sit here and hear the rebuttal, or if you

11   would like we can go to lunch and then come back and

12   start again.     I mean, just whatever you want to do.

13                    MR. RICHIE:    I would like to do rebuttal

14   while the argument is fresh on my mind.

15                    THE COURT:    That would be fine.   Then you

16   may proceed.

17                    MR. RICHIE:    I'm only sitting down

18   because you asked me to.

19                    THE COURT:    Yeah.   And pull that mic up a

20   little closer.    I'm still having trouble hearing you.

21   Just move some stuff out of the way.

22                    MR. RICHIE:    Can you hear me now, judge?

23                    THE COURT:    Yeah.

24                    MR. RICHIE:    All right.   Thank you.   May

25   it please the Court.    Don Richie on behalf of Bud Wade.


                                                                     41
 1   Ms. Allen seems to argue mostly that because the case

 2   has so many facts that will have to be determined at

 3   trial that it would be costly to proceed and that the

 4   cost of bringing an expert, which we designated, Mr.

 5   Bolton, to talk about the value of the property on the

 6   date of the sale being at least two times, probably more

 7   like three times what was paid for the property, is

 8   going to be complicated, it's going to take jury time,

 9   court time, is not a basis for summary judgment.     It is

10   not now and it never will be.

11       So what we really are here about today on summary

12   judgment is whether or not there are fact questions.

13   And to start with I went through their summary judgment,

14   not our response, their summary judgment motion and just

15   in the recital of the background there were over 30 fact

16   questions raised by Ms. Allen, recognized by Ms. Allen.

17   This case, Ms. Allen says, we have to go back and look

18   at what was Mrs. Wade's state of mind at the time.     I

19   agree.   And one thing about state of mind is not just

20   whether or not you were unduly influenced but whether or

21   not you were misled.

22       Here we have a sale by an 87 year old woman, maybe

23   89, of the primary asset that she owned to one of her

24   seven children after she had clearly indicated in the

25   prior will an intent to leave her estate to all seven


                                                                42
 1   children equally.   Then when she redid her will she

 2   reasserted that same desire in the will that has been

 3   probated in this Court.    So let me start by saying there

 4   is no will contest here.     That is not what this is

 5   about.   My client does not seek to set aside the will,

 6   has never sought to set aside the will and believes that

 7   the will properly and appropriately reflects his mom's

 8   wishes at the time of her death, which is that her seven

 9   children would be taken care of.     In fact, she had

10   actually indicated an interest that Weldon, who is less

11   capable than the rest, would get more and his interest

12   would be held in a trust so that he couldn't waste it

13   and there would be something there for the rest of his

14   life.

15       Mr. Bud Wade has brought this case not to enrich

16   himself.   It's to bring assets back into the estate.

17   And so the comment about needing other parties here,

18   this case is over two or three years old.     The Court has

19   a scheduling order that is still in existence.     The

20   need, the right to bring in third parties existed until

21   February of this year.     Not only did Johnny Wade not

22   bring in any third parties, but in their recent

23   supplemental production, responses to requests for

24   disclosure, Ms. Allen said she didn't intend to bring in

25   any other third parties, none are necessary.     So it's


                                                                43
 1   not like we've done something to preclude those that

 2   need to be here from being here, and the Court may

 3   remember that at the Court's insistence all of the heirs

 4   had to come to this courthouse to meet with you, Judge,

 5   and to talk about the expense of this case and the

 6   complication of this case and why it would be better to

 7   heal this family and save the money of the fight.     And

 8   everyone but Emma was here.     Emma did not come to that

 9   meeting.   But Weldon was here, Charlene was here, Sue

10   was here and all of these people that they claim have an

11   interest and should want to be here, they were here.

12   And they know about the case.     They could have easily

13   hired a lawyer and made an appearance and been here, and

14   they chose not to.

15       But what's important is that Bud Wade is bringing

16   this claim on behalf of the estate, to bring property

17   back into the estate, not put it in his pocket.     So the

18   idea that these individuals are going to owe

19   restoration, somehow are going to give back what they've

20   already gotten can't even be determined until the estate

21   is resolved and concluded and determined whether or not

22   once the property comes back in and is sold, is there

23   enough money to repay Johnny and Amanda for the funds

24   through contribution tracing that they paid for this

25   property and believed that they owned it from 2004 till


                                                                 44
 1   the date of the trial.     Is there enough to repay them

 2   and still have more to distribute than what's already

 3   been distributed.     Or is there not.   So this idea of

 4   restoration is one of the facts that's going to happen

 5   at trial.    And one of the things that will be proved is

 6   they didn't pay rent while they lived on the property

 7   from 2004.    Are the payments that were made by Johnny

 8   and Amanda Wade greater than, equal to or less than the

 9   fair lease value of that property that they made their

10   homestead for now over 10 years.     So that's a fact

11   question at trial.    I think it's a red herring.      It's a

12   ruse.

13           Then we get back to the question of, well, what

14   did Bud Wade determine?    What did he find?     When did he

15   find it?    What could his 89 year old mother have found

16   when she is living with Johnny and Amanda?       Her lawyers

17   have been wrested from her.     Pat Cavness, Amanda Wade

18   has testified, in the summary judgment evidence, that

19   Pat Cavness -- they did go to him and he talked to them

20   about the sale, and he had some complaints and

21   objections.    That's a fact question.    What did Nancy

22   Burns understand those objections to be.       We know what

23   Mrs. Allen would like you to believe.      That is certainly

24   one recitation.     Mrs. Burns, in her affidavit for

25   summary judgment evidence says all they talked about was


                                                                   45
 1   the sale.    They didn't talk about the terms while she

 2   was there.    She heard about a sale, but no terms.     A

 3   sale at 12 or $1,300 an acre may not have been

 4   objectionable.    One at less than $500,000 is

 5   objectionable.

 6       What did Ms. Wade belive when she signed the papers

 7   and what had she been told by Johnny and Amanda after

 8   her lawyer was terminated and a new lawyer in Austin,

 9   Texas was retained.     The testimony in both Johnny and

10   Amanda's deposition, Johnny didn't even meet with the

11   Armbrust lawyers.     Amanda did.   Amanda who now wants to

12   buy this property from her mother in law who has recited

13   in her deposition that she would have never moved to

14   Texas to care for her mother in law.       And Johnny has

15   testified he would have never moved here, but for the

16   sale of the ranch.    It was a condition.     And they were

17   only going to move here to care for the mother who

18   needed so much care that she sold them the ranch.       And

19   then they go on to testify that she didn't really need

20   the care.    When they went on vacation they didn't tell

21   their other children -- their brothers and sisters,

22   because mom could take care of herself.       She didn't need

23   any help.    Well, that's a fact question.     Did she need

24   help or didn't she need help.       Is that the reason mom

25   sold the ranch?     Or representations were made and what


                                                                   46
 1   did she rely on when she sold that ranch and what did

 2   she believe would be the consideration for it.         Another

 3   fact question.

 4       So if you looked at -- if you look at the deed, Ms.

 5   Allen wants you to believe that everybody could

 6   understand and everybody could know what the terms of

 7   this deal were by looking at the instruments that were

 8   filed of record.     If I may, I want to show you the deed.

 9   We're just not as fancy as the Graves Dougherty firm.

10   We didn't bring our audio/visual person with us, but we

11   do have the deed here.     The warranty deed with vendor's

12   lien.   This is the one that got filed.        May I approach

13   the bench, Your Honor?

14                    THE COURT:    Yes, you may.

15                    MR. RICHIE:    Ms. Allen, I don't have a

16   copy for you, but it's Exhibit I to our response.         It is

17   the warranty deed with vendor's lien.

18                    MS. ALLEN:    I have everything that you

19   are furnishing to the Court.      It's accurate.

20                    MR. RICHIE:    Thank you.

21       What's interesting about the deed, Judge, the deed

22   that Mrs. Wade signed, look at the consideration.         It

23   says, Cash.     Cash on a promissory note.      Well, how much

24   cash?   What did she believe she was being paid for this

25   property?     You can't look at that and determine the


                                                                     47
 1   purchase price.    It is not possible and wasn't possible

 2   for Mrs. Wade.    It certainly raises a fact question for

 3   a jury as to what she believed she was selling the

 4   property for and on what terms she was selling it.

 5       If you look at the deed of trust, another public

 6   record --

 7                    THE COURT:    I'm familiar with the deed of

 8   trust.

 9                    MR. RICHIE:    Thank you, Judge.   You won't

10   find anything on the deed of trust and you never would.

11   As the Court stated on the record that you have been

12   involved in real estate transactions before, a deed of

13   trust states what the debt is that is being secured by

14   the deed of trust, not what the purchase price is of the

15   property pledged, and you will not --

16                    THE COURT:    Well, it says vendor's lien.

17                    MR. RICHIE:    I'm sorry, Your Honor?

18                    THE COURT:    Vendor's lien was secured by

19   the deed of trust, so, yes, we knew it was part of the

20   purchase price that was being secured by the deed of

21   trust.

22                    MR. RICHIE:    Part of the purchase price,

23   but you can't tell what the purchase price is.       The

24   vendor's lien is retained in the deed and the deed of

25   trust is a pledge of property -- the vendor's lien is a


                                                                   48
 1   pledge of property.    The deed of trust is an additional

 2   contractual pledge of the property.

 3       May I approach with this deed of trust?

 4                   THE COURT:    You may.   Let me make this

 5   comment though.    These are the sort of questions that

 6   the decedent should have asked her attorney, Mr.

 7   Cavness.    Again, because of my knowledge of real estate

 8   I know that every deed that has ever been prepared

 9   recites $10 and other good and valuable consideration.

10   Or if you have a real estate lien note, the note -- what

11   I'm trying to say is that it's traditional language in a

12   warranty deed to recite consideration of $10, and in

13   this case, the execution of a promissory note in the

14   amount of $500,000.    What I'm trying to say to you

15   counsel is I'm not really finding that a persuasive

16   argument.   I think there are some really good points you

17   have ahead of you, but that's not one of them.

18                   MR. RICHIE:    Thank you, Your Honor.   I'm

19   not suggesting that there is anything unusual about the

20   deed.   What I'm suggesting is you can't tell from it

21   what the purchase price is because deeds rarely recite

22   the purchase price, because people don't want to put a

23   record on what the purchase price is for the real

24   property.

25                   THE COURT:    Creates a real problem with


                                                                   49
 1   the tax people.

 2                    MR. RICHIE:    That is one of them.   So I

 3   want to call the Court's attention to the case of

 4   Matejek, in the matter of the estate of Edward John

 5   Matejek.     It's a Corpus Christi case from 1996.     And I

 6   apologize again to Ms. Allen, I don't have a copy of it.

 7   I do for the Court.

 8                    THE COURT:    I've already read that case.

 9                    MR. RICHIE:    It's cited in our brief.

10   May I approach?

11                    THE COURT:    Yes.

12                    MS. ALLEN:    Mr. Richie, if you give a

13   case to the Court I trust that you give a case to the

14   Court.     I'm not going to have a problem with it.

15                    MR. RICHIE:    It wasn't a matter of trust.

16   I want you to have a copy of it.

17                    MS. ALLEN:    You don't have one for me, so

18   that's okay too.

19                    MR. RICHIE:    Thank you, Judge.

20       Matejek is a case that is dealing with deed records

21   and talks about what you can -- what someone who is

22   looking at a public record, what knowledge they're

23   charged with from looking at public records.        And what

24   the Court held, Judge, was that -- this is on page 7.4,

25   this is the back of the document I handed you -- is that


                                                                    50
 1   one is charged with constructive notice of the actual

 2   knowledge that one could gain by examination of the

 3   public records.    Constructive notice is limited to the

 4   facts reflected on the face of the records.    The only

 5   thing filed here were the deed and the deed of trust.

 6   You cannot find the amortization.    You can't find the

 7   term of the note from looking at either of those

 8   documents.   And Mrs. Wade, Edell, first of all was 89

 9   years old.   Secondly, you can't see that from looking at

10   those documents to see what the terms were.    That's a

11   public record.    She didn't go to the lawyer who drafted

12   those.   She didn't meet with the lawyer who drafted

13   those.   Amanda has testified in the deposition testimony

14   that is included in the record that she did not meet --

15   Mrs. Wade, Edell Wade, was not taken to Austin to meet

16   with the lawyers and did not meet the lawyers and that

17   the lawyers who drafted these instruments were in fact

18   hired by Amanda, represented Amanda and were paid for by

19   Amanda and Johnny from her checking account.    So Mrs.

20   Wade didn't have a lawyer to talk to as Mr. Cavness had

21   been terminated.    She didn't have a lawyer to talk to at

22   the time she was executing these documents, and there is

23   no evidence and there will be none that she met with the

24   lawyers that drafted the documents and talked to them

25   about the terms.    So that raises a fact question as to


                                                                51
 1   what she knew, when she knew it, what she believed.

 2   Then you get back to the Texas law on different types of

 3   fiduciary relationships that exist.   Amanda was working

 4   on these documents with the lawyers in Austin.    And she

 5   was talking to her mother in law about those documents

 6   and her mother in law was unrepresented.   There is not

 7   even a contest that she was represented in the execution

 8   of these documents.

 9       Under Texas law, and we cited this in our response,

10   there are two types of fiduciary duties that can occur.

11   There are those that are expressed and then there are

12   those that happen because of the circumstances.     We

13   believe it will be determined here that Amanda Wade was

14   a person that Edell Wade trusted and placed confidence

15   in to document a deal and to treat Mrs. Edell Wade's

16   interest fairly and that a fiduciary duty of her.        What

17   happened before the sale of the property once Pat

18   Cavness was terminated and Amanda goes and finds an

19   attorney to draft these documents and she is the only

20   one, Amanda is talking to Edell Wade about the terms of

21   the deal documents, what they documents do and what the

22   documents don't do.   We believe that that's the point

23   where Amanda became a fiduciary to Edell and that she

24   owed to Edell full disclosure, she owed her loyalty, she

25   owed her a duty of no conflicts of interest.


                                                                 52
 1       If we roll forward in time from that, so number

 2   one, we have shown that there is some fact question

 3   about what Edell knew and who should have told her and

 4   who has the duty to prove that Edell understood what she

 5   was doing and that she wasn't being unduly influenced by

 6   Johnny and Amanda, the purchaser of the property with

 7   respect to their purpose in coming to town and whether

 8   or not there was a fair purchase price being paid and

 9   whether it was being paid for.

10       The Court asked the question a while ago about

11   whether or not her life estate had been eliminated, had

12   ever been modified.     You won't find life estate in that

13   deed.   You won't find life estate in that deed of trust.

14   A life estate reservation would be in the deed.      It's

15   not there in the original deed.     So not only was it not

16   ever modified, it never existed.     If she believed she

17   had a life estate, if that's one thing she was told, why

18   don't the documents reflect it.     Was that a

19   misrepresentation?    She was told she was going to be

20   paid 2 percent.     She didn't get paid 2 percent.   You

21   roll along in time, and not only was she not paid 2

22   percent after modification, by the time you do an

23   $81,000 credit against the original principal there was

24   no 2 percent.     Because of all of the give-back that

25   occurs with that 81,000 -- what Mr. Walden was trying to


                                                                 53
 1   say a moment ago is that the fiduciary has the duty to

 2   establish -- first of all, the debtor under the note has

 3   the duty to establish that they have paid the note or

 4   that it's forgiven somehow.     They can't produce one

 5   piece of paper, not a gift letter, not a gift deed, not

 6   a gift tax return where Edell Wade says, I want to

 7   forgive $30,000.     And then Amanda Wade testifies in her

 8   deposition not as it was reported by Mr. Stubbs, but

 9   what she says is, Gosh I don't -- this is on page 69 of

10   her deposition.     She says, I can't explain the $49,000

11   discrepancy.     I don't have any proof of the 30,000 other

12   than that's what she wanted to do.

13         Then Mr. Walden asked her -- I was not there -- Mr.

14   Walden asked her, he says on page --- starting on 69 to

15   70:

16         Well, $49,000, wouldn't you remember tht if you had

17   paid another $49,000.     That's on page 70, line 7.     Line

18   5 is where the question starts.

19         And she answered:    Well, if I have paid it I

20   obviously didn't remember.

21         He says:   Right.   Then he goes on:   Now you

22   provided your -- your responses you made in discovery,

23   indicated that you've furnished me records of all of the

24   payments you've made; correct?

25         Answer:    Yes, I believe my responses said that.


                                                                 54
 1       Okay.    I'm showing you what I'm going to have the

 2   reporter mark as Exhibit 8. Do you recognize that?

 3       I think I've seen this.

 4       Those are the responses to requests for production

 5   of documents that we made in this cause; correct?

 6       Yes.

 7       And I'm looking down at Request No. 2 in the

 8   response, and the question says, We asked for

 9   documentation requesting every payment you've made.

10       Her response:      Well, it says in my possession.

11       Question:    Right.    And I'm going to direct you to

12   the sentence beginning about half way down the response

13   beginning with "as".      I'm going to read it.

14       As for additional documents please see the attached

15   note that additional documentation has presumably been

16   in the control, custody or control of respondent, which

17   is you, but is now missing, lost or has been destroyed.

18       That's Amanda's response to where are the

19   additional documents:     They're missing, lost or

20   destroyed.

21       Mr. Walden says: Do you stand by that statement

22   today?

23       She responds:      That documentation may be missing,

24   lot or destroyed?

25       He says:    Yes.


                                                                 55
 1       She says:     I suppose so.

 2       Mr. Walden:     Okay.   Do you think documentation of

 3   payment of an additional $49,000 approximately is

 4   missing, lot or destroyed?

 5       Answer:   I don't know that I'm going to -- I won't

 6   say it's missing, lost or destroyed.     What I'll say is

 7   if there is a discrepancy in the note I'll look into it

 8   further.

 9       So clearly he had asked her to produce this.

10       She goes on to say:     I'll try to find whatever else

11   I've paid but I have not really been able to lay my

12   hands on it before.

13       And he says:    Okay.   Thank you.

14       We have not seen proof, not just testimony but

15   proof of payment, checks, canceled check for $49,000 or

16   the 30, so there is about an 80,000 or $81,000

17   discrepancy here plus interest.     In a $500,000 note

18   that's material that is unexplained by the maker of the

19   note who has an obligation to prove payment.

20       And then as the executor, because we've pled for a

21   breach of fiduciary duty as part of our plea, as an

22   executor she had a duty to foreclose on the note at

23   least in August of 2011 when it was established that

24   there was $80,000 of unpaid principal and interest.      To

25   this date that foreclosure has not occurred.


                                                                 56
 1          So there are fact questions about what's the amount

 2   of the note.    There are fact questions about what is the

 3   amount of interest.     There are fact questions about

 4   breach of fiduciary duty when a modification is done in

 5   2010.    There are fact questions about what does Edell

 6   Wade know, when did she know it and who should have told

 7   her.    And what is the effect of Amanda Wade terminating

 8   Pat Cavness and hiring another lawyer, not for her

 9   mother in law, but for Johnny and Amanda to document the

10   sale of the most significant asset this lady owned and

11   the most significant asset of this estate.      Those are

12   fact questions that defeat summary judgment.

13          We made a chart, Your Honor, this is just going

14   through their motion for summary judgment.      May I

15   approach?

16                   THE COURT:    Yes.

17                   MR. RICHIE:    This is just demonstrative.

18   This is a fact question.      It's not every one of them,

19   it's just a lot.    And on the left it says matter of

20   dispute, in the middle what did the defendant say in

21   their motion for summary judgment and what do we say in

22   our response and where do we find it and is it a

23   disputed fact or not.    And as you can see there was an

24   agreement that she had seven children and she lived on a

25   475 acre ranch and she lived there with her husband,


                                                                  57
 1   Otto, until he passed away in 1996.      From that point on

 2   there's almost no agreement of the facts until you get

 3   over to did Edell pass away in August 2010.      That's

 4   undisputed.   This is some of the 30-something issues of

 5   disputed facts in this case.     It is not disputed that

 6   Bud Wade knew there was a sale in 2004 and it is not

 7   disputed that Nancy Burns knew there was a sale.      We do

 8   object to any suggestion that what Nancy Burns knew is

 9   somehow imputed to her brother James.      There is no --

10   there has been no showing of anything other than they

11   both knew there was a sale.     Neither of them has

12   testified, neither of them will testify that they knew

13   this was a 32 year note signed by an 89 year old --

14   accepted by an 89 year old woman who would have been 121

15   when she got paid.   Neither of them will testify that

16   they knew it was at 2 percent and neither of them will

17   testify that they knew the total purchase price of what

18   was being purchased.    In fact, there is a closing

19   statement that calls into question what was being

20   purchased.    It's one of the summary judgment exhibits

21   called "closing agreement".

22       May I approach, Your Honor, with that?

23                   THE COURT:    You may.

24                   MR. RICHIE:    It's Exhibit Q.

25       It raises the question about what was being offered


                                                                 58
 1   for $500,000.   What's important about that is, is when

 2   we're putting on evidence of the difference between the

 3   fair market value of this land and what was paid for it,

 4   we believe there is an argument that only $350,000 was

 5   paid for 474 acres, not $500,000 for 475, which creates

 6   a greater discrepancy in the difference between the

 7   value of the date of the sale and the value paid.

 8   Another fact question.    What did Mr. Wade know at the

 9   time she signed that appears that she didn't believe she

10   was getting $500,000 for the real estate, for the ranch,

11   because that says, that closing agreement says she was

12   getting $150,000 for the house and acre and only

13   $350,000 for the real -- for the rest of the ranch.

14       Again, Your Honor, summary judgment is to determine

15   whether or not there is an issue and whether or not

16   there is a legal basis for a claim.    Bud Wade is an

17   heir.   He has a right under the Probate Code to assert

18   claims on behalf of the estate.    He's asserting them on

19   behalf of the estate.    Bud Wade also, with respect to

20   the declaratory judgment action seeks this Court to

21   impose a constructive trust.    A jury can't declare a

22   constructive trust.

23       We also are asking this Court to -- that's probably

24   for a later argument actually on attorneys' fees.       I

25   apologize for going into that now.


                                                                 59
 1       There is case law in Texas that says that Bud did

 2   not have the duty to exercise diligence once he knew

 3   there was a sale, and perhaps you can find that case.

 4   It's in our brief and I do want to talk about that.

 5   What was his duty?     He's the son.   He's not claiming

 6   that his mother was mentally impaired in 2004.      He did

 7   not seek a guardianship.     Simply knowing that there is a

 8   sale doesn't put one on notice of a fraud, doesn't put

 9   one on notice of fraud in the sale of a real estate

10   transaction, doesn't put one on notice of negligent

11   misrepresentations or intentional misrepresentations.

12   And as I've shown the Court through the deed and the

13   deed of trust, nobody contends the promissory note was

14   published.     It wasn't filed of record.   He had no way to

15   know what the terms of the sale were, what

16   representations were made to mom.      What he has said in

17   his affidavit, summary judgment affidavit is that his

18   mom was happy.    Nancy also said mom was happy.    She was

19   independent.     Johnny and Amanda moved here, they locked

20   the gates.     The family is kind of secluded.   They

21   stopped taking her to church, she stopped taking care of

22   herself.     When Nancy went over to find out -- Nancy had

23   found out that the power of attorney that Nancy had

24   enjoyed for years for both her mother and father, the

25   way she found out that had been changed is she went to


                                                                  60
 1   the bank to work on some renewals of some CDs and was

 2   told, You can't.   You're no longer her power of

 3   attorney.   She went straight to her mother's house, was

 4   meeting with her mother and Amanda comes in and Johnny

 5   comes racing up on his ATV, jumps off, comes in red

 6   faced, scolding his mother.     And Nancy has testified and

 7   will at trial that mom looked worried, scared and that

 8   her demeanor seemed to change after Amanda and Johnny

 9   came in.    Those are facts that a jury can look at to

10   conclude that there was undue influence being exercised

11   over mom and that that undue influence led to things

12   like the note modification, led to things like the

13   original sale itself.   And when Amanda gets rid of a

14   lawyer we don't know what she said to mom or what she

15   repeated that Pat Cavness may have said or how it came

16   about that they got a lawyer in Austin, Texas, 170

17   miles, 60 miles -- felt like 150 this morning coming up

18   here -- or whatever it is.     They don't take mom.   They

19   don't get the lawyers to come over here.     Nobody is

20   representing mom except Amanda.

21                   THE COURT:    What about the terms of the

22   note, the deed, the deed of trust being the same

23   regardless of which attorney drafted it?

24                   MR. RICHIE:    We don't even know that Pat

25   Cavness discussed that with Edell.     We see his notes


                                                                  61
 1   that he understood those were the terms.      We don't know

 2   if he discussed them with Edell and to what extent.        We

 3   know those cases that say --      legal malpractice cases --

 4   a lawyer has a duty to attempt to understand that the

 5   client understands the information they're given, the

 6   advice they're given and --

 7                    THE COURT:    I thought through discovery

 8   we had a copy of the documents that Mr. Cavness

 9   prepared.    We also had a set of documents that the

10   second attorney prepared and they were, for all

11   practical purposes, essentially the same.

12                    MR. RICHIE:    If you look at Exhibit 4 to

13   our motion, when you look at the Pat Cavness document --

14   and I don't have a fancy -- can I bring it up and show

15   it to you?

16                    THE COURT:    Sure.

17                    MR. RICHIE:    This is what was put up on

18   the board.    What's interesting about this is you have

19   Pat Cavness's file and you will see that he doesn't say

20   what he discussed with Mrs. Wade after the time he

21   prepared the documents.       Look at the letter transmitting

22   the documents.    Look who they're addressed to.     They're

23   not even addressed to Mrs. Wade.       They're addressed to

24   Johnny Wade and Amanda Wade.      So there is nothing in

25   that file to indicate that he had discussed any of that


                                                                   62
 1   with Mrs. Wade to assure she understood it.

 2          And half-way or three-quarters of the way down is

 3   an asterisk, looks like there is a 2 next to it.          Says:

 4   Amanda will call with rate and monthly payment.          Even

 5   this does not say that Mrs. Wade understood or was even

 6   told what the rate and monthly payment would be.          So

 7   you've got Amanda and Johnny dictating this transaction.

 8          And then further on in there, there's another note,

 9   kind of looks like this, and Pat Cavness makes a note to

10   Amanda:     I fully understand the changes of substance in

11   the documents but I am at a loss to understand the

12   changes of form.    Perhaps you can fill me in on that.

13   Pat.

14          So he's not -- there is nothing in here to show

15   that he is communicating with his client and there is

16   also -- this -- they have a date of January 6th on here.

17   The documents that got signed and filed are in March, I

18   think.     You've got my copy, Judge.    I think that deed

19   was in March.     There is a three month gap -- no, I'm

20   sorry.

21          No, I meant the deed itself.     It's up there?    I'll

22   find it.     What's the date of the deed?    Oh, here it is.

23   March, I think.     Right.

24          Mrs. Wade signs it.   It's notarized on February

25   12th, Judge.     Pat Cavness was terminated.    We don't know


                                                                     63
 1   what if any discussions he had with her.    There is

 2   nothing in the file that says he had any between January

 3   and February 12th when they were signed.    They were in

 4   California.   She was in Lampasas.   And I just think that

 5   raises a fact question about what she knew, when she

 6   knew it, what was on her mind and whether or not there

 7   was undue influence that led to the sale of the ranch at

 8   that price on a 32 year note with 2 percent.     Those are

 9   fairly extraordinary terms, I think for any real estate

10   transaction, let alone one of an 89 year old woman.      So

11   we believe that raises a fact question.     Whether or not

12   a jury accepts our version of the truth or not is not

13   dispositive of a summary judgment motion.

14       In the Kansas Reassurance Company Limited versus

15   Congressional Mortgage Corporation, 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 WP<Bc,                                      §                                              AT LAW
DECEASED                                          §                       BURNETCOUNTY,TEXAS

                                     CHARGE OF THE COURT

LADIES AND GENTLEMEN OF THE JURY:

       I h1s case IS submitted to you by ask1ng questions about the facts, which you must decide
from the evidence you have heard in this trial.

       You are the sole judges of the credibility of the witnesses and the weight to be given their
testimony, but in matters of law, you must be governed by the instructions in this charge.

        In discharging :y:our resQonsibilitx on this juzy, xou wi)] obse:I:Y:e a11 the instn1ctions l~iliich
have previously been given you. I shall now give you additional instructions which you should
carefully and strictly follow during your deliberations.

        I.      Do not let bias, prejudice, or sympathy play any part in your deiiberations.

        2       In aFFh1ing at yeuF ansv1ers, eansicler enl) the e\>idence 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.)
                                       /                            /,           ___...,
          ./7        ,P         //                             [/ /          <      /            /
    / / -.-1'              Y/C::                               ~0                1t9V-'7v----'
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     ~·
    II




                                                                                                     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
