                                                                                           ACCEPTED
                                                                                       06-15-00032-CV
                                                                            SIXTH COURT OF APPEALS
                                                                                  TEXARKANA, TEXAS
                                                                                  7/16/2015 2:21:48 PM
                                                                                      DEBBIE AUTREY
                                                                                                CLERK
                           No. 06-15-00032-CV


                         In the Court of Appeals                   FILED IN
                                                            6th COURT OF APPEALS
                          Sixth Judicial District             TEXARKANA, TEXAS
                                                            7/16/2015 2:21:48 PM
                            Texarkana, Texas                    DEBBIE AUTREY
                                                                    Clerk


                   In re CARLTON SEWELL, Relator


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

                PETITION FOR WRIT OF MANDAMUS


             REAL PARTIES IN INTEREST'S RESPONSE
        TO RELATOR'S PETITION FOR WRIT OF MANDAMUS




                                     Chad Cable
                                     State Bar No. 03575300
                                     323 Gilmer Street
                                     Sulphur Springs, Texas 75482
                                     (903) 885-1500 Telephone
                                     (903) 885-7501 Telecopier

                                     ATTORNEY FOR CONTESTANTS
                                                                Table of Contents

INDEX OF AUTHORITIES .............................................................................................. 2

STATEMENT OF THE CASE ........................................................................................... 3

STATEMENT OF FACTS .................................................................................................. 3

ARGUMENT AND AUTHORITIES ................................................................................. 3

PRAYER ............................................................................................................................ l1

CERTIFICATE OF SERVICE........... .............................................................. .................. 12




Index ofAuthorities

CASES                                                                                                                                    PAGE

Berlanga v. Berlanga, 2012 WL 252497 {Tex. App.- Beaumont 2012, no pet.) ....................... 5

Boulet v. State, 189 S.W.3d 833 {Tex. App. -Houston [1 51 Dist.] 2006, no pet.) ....................... II

Hewitt v. Roberts, 2013 WL 398940 {Tex.App.-Corpus Christi 2013, no pet.) ................. ......... 3

Johnson v. Edmonds, 7 12 S.W.2d 651 {Tex.App.-Fort Worth 1986, no writ) ............................. 5

Jones v. Citibank (South Dakota), NA., 235 S.W.3d 333 (Tex.App. - Fort Worth 2007) ......... .4

Marino v. King 355 S.W.3d 629 (Tex.2011) .......................... ...................................................... 3, 9

Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803
      (Tex.App.- Houston [1 st Dist] 1999, pet. denied) ............................................................ 10

Steffan v. Steffan, 29 S.W.3d 627 {Tex. App.- Houston [14th Dist.] 2000, pet. denied) ............. .4, 5

Stelly v. Papania, 927 S. W.2d 620 {Tex.l996) ................... ......................................................... 6

Vann v. Gaines, 2007 WL 865870, *2 (Tex.App.-Fort Worth 2007, no pet.) ............................. .4, 5

Webb v. Ray, 944 S.W.2d 458 , 461 (Tex.App.-Houston [14th Dist.] 1997, no writ) ............. ..... .4, 6

Wheeler v. Green, 157 S. W.3d 439 (Tex.2005) ........................................................................... 5, 6




                                                                            2
RULES

TEX.R.CIV.P. 198.3 ........ ....... ........................................................................................... .........6, 7

                                                           Statement of the Case

          Real Parties in Interest accept as accurate Carlton Sewell's Statement of the Case.

                                                           Statement of Facts

          Real Parties in Interest accept Carlton Sewell's Statement of Facts as accurate except as to the

discovery period. The parties, by their conduct and tacit agreement, perpetuated the discovery period

by conducting discovery after the date of the Requests for Admission: i.e., Requests for Disclosure;

Interrogatories; Requests For Production; and, additional depositions. (Carlton Sewell's Mandamus

Record, Vol. 1, Tab 21 and 23).

                                                       Arguments and Authorities

Carlton Sewell Fails to Establish "Good Cause"

          A person moving for withdrawal of deemed admissions bears the burden of establishing 1)

good cause; and, 2) the absence of undue prejudice. Hewitt v. Roberts, 2013 WL 398940, *2 (Tex.App.-

Corpus Christi 20 13, no pet.).

          Good cause exists where the failure to respond to the request for admissions was the result of an

accident or mistake and was not intentional or the result of conscious indifference. Marino v. King 355

S.W.3d 629, 633 (Tex.2011).

          Carlton Sewell's stark failure in this case is his failure to establish "good cause." Carlton Sewell

appears to rely exclusively on the fact that he was a pro se litigant as being, ipso facto, sufficient to

establish "good cause." His status as a pro se litigant is not, ipso facto , sufficient to establish "good

cause."

          Two cases from the Fort Worth Court of Appeals make it plain that "pro se" status is not

sufficient to establish "good cause."

                                                                          3
       In the case Vann v. Gaines, 2007 WL 865870, *2 (Tex.App.-Fort Worth 2007, no pet.) the court

noted that, unlike the appellant in Wheeler, the appellant in Gaines had not moved to withdraw the

admissions, but went on to state that,

       In any event, while a lack of understanding of pre-trial procedure by a pro se litigant
       might be proof of good cause to withdraw deemed admissions, a conscious indifference is
       not. Here, appellant was given two separate requests for admissions by appellees ...
       Appellant ignored both requests ... Unlike the pro se litigant in Wheeler, appellant showed
       no good cause for not attempting to respond earlier.

       Again, in Jones v. Citibank (South Dakota), N.A., 235 S.W.3d 333 (Tex.App. - Fort Worth

2007), the Fort Worth Court of Appeals stated:


       In any event, while a lack of understanding of pre-trial procedure by a pro se litigant
       might be proof of good cause to withdraw deemed admissions, a conscious indifference is
       not. Here, unlike the pro se litigant in Wheeler, appellant complied with the discovery
       rules by responding timely to the first request for admissions, but she showed no good
       cause for failing to even attempt to respond on time to the second request for admissions.
       !d.


       It is Carlton Sewell's burden to establish "good cause." Webb v. Ray, 944 S.W.2d 458, 461

(Tex.App.-Houston [14th Dist.] 1997, no writ). In the instant case, Carlton Sewell fails to establish that

his failure to respond was due to accident or mistake and was not the result of conscious indifference.

       First of all, on the face of the Admissions Request, Carlton Sewell was notified of the

consequences of a fai lure to answer. On the face of the Contestants' First Request For Admissions it

states, "A failure to specifically answer any request or an evasive answer to any request will be taken as

an admission of truth of such request." If Carlton Sewell read this admonition and then decided not to

answer, such decision would amount to conscious indifference.
                                                                                      1
       The case of Steffen v. Steffen, 29 S.W.3d 627, 631 (Tex. App.- Houston [14 h Dist.] 2000, pet.

denied) is remarkably similar to the instant case.      In Steffan, husband was acting pro se when he

received a Request For Admissions. Husband did not respond to the request.


                                                    4
        Here, Richard states that he showed "good cause" because he was a pro se litigant at the
        time the requests were served on him, and he did not know or understand the
        consequences of failing to timely answer. However, we note that a pro se litigant must
        comply with the applicable laws and rules of procedure. See Mansfield State Bank v.
        Cohn, 573 S.W.2d 181, 185 (Tex.l 978). Moreover, the requests for admission had the
        legal consequences of non-compliance written on their face. Richard has not shown
        that his alleged ignorance of the law rendered his non-compliance an accident or a
        mistake, rather than intentional or the result of conscious indifference. We find no abuse
        of discretion by the trial court in denying Richard's request to withdraw the deemed
        admissions, and overrule the second issue.

       Steffan v. Steffan , 29 S.W.3d 627, 631 (Tex. App. - Houston [14th Dist.] 2000, pet. denied).

       Carlton Sewell can find no footing in the case of Wheeler v. Green, 157 S.W.3d 439, 443

(Tex.2005)(per curiam). In that case, a pro se litigant tried to comply with the rules relating to requests

for admissions, but because she was unfamiliar with the mail box rule, she served her responses 2 days

late. There is clearly nothing in that case showing any conscious indifference. In Wheeler, the result

would likely have been different if the mailbox rule had been stated on the face of the Admissions

Request document.

       On the other hand, if Carlton Sewell decided not to read the document, that would also amount

to a conscious indifference. A decision not to read the document cannot be excused by the lack of legal

knowledge. A person would know that the document was significant by the fact that it was sent

certified mail , return receipt requested. Whether a prose litigant or a seasoned attorney, a decision not

to read a document is a decision to ignore it. A decision to ignore it is conscious indifference. See

Gaines, 2007 WL 865870 at *2.

       "Conscious indifference has been defined as failing to take some action which would seem

obvious to a person of reasonable sensibilities under the same circumstances." Berlanga v. Berlanga,

No. 09-11-00082-CV, 2012 WL 252497, at *4 (Tex. App. -Beaumont 2012, no pet.)(quoting Johnson v.

Edmonds. 712 S.W.2d 651 , 653 (Tex.App.-Fort Worth 1986, no writ)). It would seem obvious to a

person of reasonable sensibilities to read a document that has been sent certified mail. Upon reading


                                                    5
such a document as is present in the instant case, it would seem obvious to a person of reasonable

sensibilities to respond to the Requests for Admission. Therefore, Carlton Sewell acted with conscious

indifference in failing to respond to the Requests for Admission.

        In view of the discovery propounded by Carlton Sewell while he was acting pro se, it is

apparent that he had some degree of legal sophistication.           See Interrogatories and Request For

Production dated June 7, 2010. (See Exhibit "A").

        Furthermore, the trial court found that Carlton Sewell had acted with "conscious indifference."

(See Exhibit "B"). Therefore, Carlton Sewell failed to establish " good cause" necessary to withdraw

deemed admissions. The party seeking withdrawal of deemed admissions has the burden to establish

good cause. Webb v. Ray, 944 S.W.2d 458, 461 {Tex.App.-Houston [14th Dist.] 1997, no writ). A trial

court has broad discretion to permit or deny the withdrawal of admissions. See Stelly v. Papania, 927

S.W.2d 620, 622 (Tex.1996). The judgment of the trial court should be set aside only if this Court finds

that the trial court's judgment amounts to a clear abuse of discretion.


Dichotomy Between Merits-Preclusive and Non-Merits-Preclusive Admissions

       Significant is the interplay between the showing of "good cause" and the due process standard

of "flagrant bad faith or callous disregard of the discovery rules." The " good cause" standard applies to

whether the deemed admissions can be withdrawn under Rule 198.3. To establish "good cause," the

admitting party must establish that the failure to respond was the result of accident or mistake, not

intentional or the result of conscious indifference. Wheeler v. Green, 157 S.W.3d 439, 442 {Tex. 2005)

The due process standard applies to prevent the proponent of the deemed admissions from using the

deemed admissions in a merits-preclusive manner. Thus, if the Carlton Sewell fails to establish " good

cause" then the admissions cannot be withdrawn under Rule 198.3. At the same time, the merits-

preclusive deemed admissions cannot be used absent evidence of " flagrant bad faith or callous


                                                     6
disregard. "   However, if the admitting party fails to establish "good cause," such that the deemed

admissions cannot be withdrawn under Rule 198.3, the non-merits-preclusive deemed admissions can

be freely used by the proponent without implicating due process concerns or the " flagrant bad faith or

callous disregard" standard. Therefore, it is important to know which admissions are non-merits-

preclusive such that they may be freely used without implicating due process concerns.

        Below, find a list of the deemed admissions in this case and a statement as to whether each

admission is merits-preclusive, and thus cannot be used absent "flagrant bad faith or callous disregard"

or non-merits-preclusive, and thus may be freely used without implicating due process concerns.

   1. That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her

        will. Merits-Preclusive.

   2. That throughout the spring and summer of 2007, Velma Ruth Fitzgerald was physically and

        mentally weak enough to be susceptible to undue influence. Merits-Preclusive.

   3. That you influenced Velma Ruth Fitzgerald to the point of subverting and overpowering her

        mind so that she would execute a new will naming you as sole beneficiary which she would not

        have done absent your influence. Merits-Preclusive.

   4. That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having

        contact with her as part of your scheme to exert undue influence over her. Merits-Preclusive.

   5. That one of your techniques for exerting undue influence was to feign romantic love for Velma

        Ruth Fitzgerald in a seducing manner by physical affection and full on the mouth kissing.

        Merits-Preclusive.

   6. That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald

        to change her will to benefit the two of you. Non-merits-preclusive.

   7.   That you told the White brothers in Vernon that Velma Ruth Fitzgerald was not competent

        when she signed their lease contract. Non-Merits-Preclusive.

                                                   7
    8. That you converted funds belonging to Velma Ruth Fitzgerald to your own benefit prior to her

        death. Non-Merits-Preclusive.

    9. That you breached your fiduciary duty to Velma Ruth Fitzgerald by profiting from the use of

        her power of attorney prior to her death. Non-Merits-Preclusive.

    10. That you misrepresented the nature of Velma Ruth Fitzgerald's mental independence to Ray

        Johnson and his staff. Non-Merits-Preclusive.

    11. That you had no contact with Velma Ruth Fitzgerald for years prior to accompanying Truitt and

        Laura Sewell to Dallas to visit her in a nursing home. Non-Merits-Preclusive.

    12. That you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong

        friend, Eurice Lee White. Non-Merits-Preclusive.

    13. That you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her

        life. Non-Merits-Preclusive.

    14. That Velma Ruth Fitzgerald was mentally and physically incapable of resisting your undue

        influence by August 2007. Merits-Preclusive.

    15. That the August 8, 2007 will of Velma Ruth Fitzgerald is invalid and should be set aside.

        Merits-Preclusive.

    16. That you are liable for damages and attorney fees to the contestants. Merits-Preclusive.

       Real Parties in Interest believe that Admission 13 - "That you habitually subjected Velma Ruth

Fitzgerald to your control during the last year of her life." is not merits-preclusive because "habitually"

does not mean " in every instance," such as at the time of the execution of the will, and because

"control" can exist that does not arise to such degree as to "subvert and overpower" the mind, e.g.,

controlling her visits with others, controlling her phone calls, etc.

       Thus, Real Parties in Interest can freely use deemed admissions numbers: 6,7,10,11 ,12, and 13

without implicating due process concerns, so long as the failure to respond to the requests for

                                                      8
admission was the result of conscious indifference. Admissions 8 and 9 are also non-merits-preclusive,

but Real Parties in Interest have heretofore withdrawn such admissions in the trial court. (See

Exhibit " C").


Carlton Sewell Fails to Establish Absence of Undue Prejudice

        The absence of undue prejudice is established by showing that a withdrawal of deemed

admissions will not delay trial nor significantly hamper the opposing party's ability to prepare for trial.

Marino v. King 355 S.W.3d 629, 633 (Tex.2011).

        There is considerable discovery that Real Parties in Interest did not seek to conduct in reliance

on the deemed admissions. If not for the deemed admissions, Real Parties in Interest would have

sought to depose l) Tiffany Bassham, who was the administrator of the assisted living facility Carlton

Sewell had Mrs. Fitzgerald sequestered in; 2) Alice Davis, who was one of the paid sitters; and, 3)

DeeAnn Landers, the bank officer familiar with the unusual facts involving Carlton Sewell's use of the

power of attorney, executed by Mrs. Fitzgerald in his favor, to purchase a rural home on several acres

with an $80K down payment and a similar sized note with the local bank.         (See Exhibit "A", Para. 5)

Real Parties in Interest would also seek to obtain the bank records pertaining to that transaction.

       Critical to Real Parties in Interest's case is the anticipated testimony ofTruitt Sewell, who is one

of the Real Parties in Interest and the brother of Carlton Sewell. His anticipated testimony is the most

probative evidence in the entire case. He would testify that Carlton Sewell asked him to help Carlton

get Fitzgerald to change her will to benefit the two of them. As a strategic matter, it is important to

elicit this information by live testimony.

       Truitt Sewell became sick with cancer in the Fall of 2014. (See Exhibit "A", Para. 6.). His

health has deteriorated to the point that he probably will not have the capacity to testify at trial because

of the delay of trial from January 12, 2015, to some undetermined point in the future. Id. Thus, Real


                                                     9
Parties in Interest's case is highly prejudiced by the delay of trial.

        Additionally, the case of Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803, n. 5 (Tex.App.-

Houston [ 151 Dist] 1999) is instructive. There, trial was commenced more than 2 years after the

requests for admissions were deemed admitted. After trial began, and after 3 witnesses had testified

and 10 exhibits had been admitted, plaintiffs sought to introduce the deemed omissions, which caught

the defendant unaware, because the deemed admissions were the result of a clerical error by the staff of

defendant's attorney, who was ignorant of the mistake until the day of trial. The trial court granted the

defendant leave to withdraw the deemed admissions but offered plaintiffs a mistrial in order for

plaintiffs to conduct the discovery plaintiffs had not conducted in reliance on the deemed admissions.

The plaintiffs refused the mistrial. From an unfavorable result, plaintiffs appealed. The 151 District

Court of Appeals reversed, holding that the plaintiffs were unduly prejudiced because there was

considerable discovery that plaintiffs did not conduct in reliance on the deemed admissions. The court

of appeals also noted that the plaintiffs "were not required to accept a mistrial - plaintiffs were entitled

to rely on the guiding rules and principles set out in the Rules of Civil Procedure regarding deemed

admissions." The court of appeals did not blame the plaintiffs, in the least, for waiting over two years,

and not until the middle oftrial, before asserting the deemed admissions.

       Like the plaintiffs in Morgan, the Real Parties in Interest here have substantial discovery which

they did not seek to conduct in reliance on the deemed admissions. (See Exhibit "A", Para. 5). Real

Parties in Interest here, upon filing their Certificate of Deemed Admissions, "were entitled to rely on

the guiding rules and principles set out in the Rules of Civil Procedure regarding deemed admissions."

In Morgan, the court permitted withdrawal of deemed admissions during the middle of trial. In the

instant case, the Court delayed the trial of the case for the purpose of entertaining a motion for

withdrawal of deemed admissions. (See Exhibit "A", Para. 7). Delay of trial is a quintessential form of

undue prejudice. Twenty cases in Texas substantially state: "Undue prejudice depends on whether

                                                     10
withdrawing an admission will delay trial or significantly hamper the opposing party's ability to

prepare for it." Boulet v. State, 189 S.W.3d 833, 836-37 (Tex. App. - Houston [1 51 Dist.] 2006, no

pet.)( emphasis added).

        In their reliance on the guiding rules and principles set out in the Rules of Civil Procedure, Real

Parties in Interest have been prejudiced by the delay of trial. Therefore, Carlton Sewell has failed to

establish an absence of undue prejudice, and the Petition For Writ of Mandamus should be denied.

       The fact that Real Parties in Interest had 4Y2 years to conduct the discovery that was not

conducted is immaterial, because the Real Parties in Interest believed that the pertinent propositions of

law were established by the deemed admissions.


Carlton Sewell Waived the Right to Complain of the Untimeliness
of Real Parties in Interest's Admissions Request

       By engaging in substantial discovery after Real Parties in Interest's Request for Admissions,

Carlton Sewell cannot complain of the untimeliness of Real Parties in Interest's Request for

Admissions. The Request for Admissions was served on May 13, 20 10. Subsequent to that time, the

parties continued to engage in discovery, i.e. , Requests for Disclosure, Interrogatories, Requests for

Production and additional depositions. (Carlton Sewell's Mandamus Record, Vol. I, Tab 21 and 23).

By their conduct and tacit agreement, the parties perpetuated the discovery period.


                                                PRAYER

       For the foregoing reasons, Real Parties In Interest pray the Court to strike those admissions

having merits-preclusive effect, Admissions numbers 1,2,3,4,5, 14, 15, 16; strike those admissions that

were withdrawn in the trial court, Admissions 8 and 9; and affirm those admissions having non-merits-

preclusive effect, Admissions numbers 6,7,10,11.12,13; deny Carlton Sewell's Petition For Writ of

Mandamus, and for such other relief, at law or in equity, to which they may be justly entitled.


                                                   11
                                                   Respectfully submitted,




                                                   Chad Cable
                                                   State Bar No. 03575300
                                                   323 Gilmer Street
                                                   Sulphur Springs, Texas 75482
                                                   (903) 885-1500 Telephone
                                                   (903) 885-7501 Telecopier

                                                   ATTORNEY FOR CONTESTANTS



                                  CERTIFICATE OF SERVICE


        I hereby certify that on the \ \Q     day of July, 2015, a true and correct copy was served on
to Brad McCampbell, P.O. Box 38, Emory, Texas 75440, FAX (903) 473-3069, attorney of record or
party in accordance with the Texas Rules of Civil Procedure.


                                                  ~~
                                                  Chad Cable




                                                 12
                                        Exhibit "A"

                                        No. 06-15-00032-CV


                                      In the Court of Appeals

                                       Sixth Judicial District

                                         Texarkana, Texas


                                In re CARLTON SEWELL, Relator


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

                            PETITION FOR WRIT OF MANDAMUS


                                 AFFIDAVIT OF CHAD CABLE


STATE OF TEXAS              *
                            *
COUNTY OF HOPKINS           *
      BEFORE ME, the undersigned authority, personally appeared Chad Cable, who, upon oath or
solemn affirmation, deposed as follows:

   1. My name is Chad Cable. I am over the age of eighteen and am, in all respects, competent to
      make this affidavit. The matters stated herein are within my personal knowledge and are true
      and correct.

   2. I am an attorney licensed to practice law in the State ofTexas. I have practiced law in Hopkins
      County for the past 35 years. I represent the Real Parties in Interest in the above styled and
      numbered case,

   3. Acting as attorney for the Real Parties in Interest, I served on Carlton Sewell ("Carlton")
      Requests for Admissions dated May 13, 2010. Attached as Exhibit A is the green card
      establishing that Carlton received the document on May 17, 2010. Carlton failed to respond to
      such Request for Admissions. Therefore, according to Texas Rules of Civil Procedure, Rule
      198.2(c), the matters are deemed admitted without the necessity of a court order.

   4. Since serving the Requests for Admissions, Carlton, while acting pro se, has served on me a Set
      of Written Interrogatories (June 7, 201 0) a true and correct copy of which is attached to this
      affidavit as Exhibit B; and, a Request For Production (June 7, 201 0) a true and correct copy of
      which is attached to this affidavit as Exhibit C.

   5. In reliance on the deemed admissions, I did not seek to depose 1) Tiffany Bassham, head
       administrator of the assisted living center in which Velma Ruth Fitzgerald was sequestered by
       Carlton; 2) Alice Davis, the paid sitter of Velma Ruth Fitzgerald; and 3) DeeAnn Landers, the
       bank officer involved in Carlton's purchase of a rural home on several acres for a down payment
       of $80,000.00, together with a like amount borrowed through the bank, which Carlton
       purchased under the power of attorney executed in his favor by Velma Ruth Fitzgerald.

   6. Truitt Sewell was diagnosed with cancer in the Fall of2014. His health has rapidly deteriorated
      since that time to the extent that Truitt Sewell is likely incapacitated to such an extent that he
      will not be able to testify at trial.

   7. On January 12, 2015, the day of trial, I filed a Certificate of Deemed Admissions. At Carlton
      Sewell's request, the Court delayed the trial for the purpose of entertaining a motion to
      withdraw the deemed admissions.

   8. FURTHER AFFIANT SAYETH NOT.
                                                          cQke~c:>..
                                                          CHAD CABLE


        SWORN TO, or solemnly affirmed, before me, the u dersigned authority, on this the       \La_
day of July, 2015.
          /
      /


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                                                                                                       10




                                            law Offices of Chad Cable
                                            323 Gilmer
                                            Sulphur Springs. TX 7 5482
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                            ~to:



                  Mr. Carlton S2well
                  107 Morris Drive
                  Sulphur Springs, Texas 75482
                                                                                           "41111
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                                                                  (
                                                                             Affidavit of Chad Cable
                                                                                   Exhibit "B"
                                     CARLTON SEWELL
                                      6940 TX Hwy. 11 E.
                                   Sulphur Springs, TX 75482

                                          June 7, 2010




Chad Cable
323 Gilmer St.
Sulphur Springs, TX 75482

        Rc:    1.     Request for Production
               2.     [nterrogatories

               No. P08-1 3 I 06; In the Estate of Velma Ruth Fitzgerald, Deceased; in the County
               Cout1 of Hopkins County, Texas

Dear Mr. Cab le:

        Enclosed please find Request for Production and Interrogatories to Janet Neal Stanley and
Truitt Sewell.

                                            Sincerely,




                                            Carlton Sewell
Encs.
                                               No. POS-131 06

 lN THE ESTATE OF                                         §   IN THE COUNTY COURT
                                                          §
 VELMA RUTH FITZGERALD,                                   §   OF
                                                          §
 DECEASED                                                 §   HOPKINS COUNTY, TEXAS



        INTERROGATORIES TO JANET NEAL STANLEY AND TRUIT SEWELL

TO:      JANET NEAL STANLEY AND TRUIT SEWELL, by and through Chad Cable, 323
         Gilmer St., Sulphur Springs, TX 75482:

         COMES NOW, Carlton Sewell, "Defendant", and pursuant to Rule 197 ofthe Texas Rules

of Civi I Procedure, serves the attached interrogatories to be propounded to Janet Neal Stanley and

Truitt Sewell, Proponents.

         Pursuant to the provisions of Rules 192 and 197 of the Texas Rules of Civil Procedure,

you are required to complete written answers to the Interrogatories on Exhibit "A" to this

pleading immediately upon the expiration of thirty (30) days following the date you are served

with these Interrogatories. You are notified that the Defendant specifies that the answers shall be

served upon the undersigned counsel.

        Your failure to make timely answers or objections may subject you to sanctions as

provided in Rule 215 of the Texas Rules of Civil Procedure.

        Furthermore, demand is made for the supplementation of your answers to these

Interrogatories as required by Rule 193.5 of the Texas Rules of Civil Procedure.

                                                  Respectfully submitted,




                                                  Carlton Sewell, Defendant
                                                  6940 TX Hwy. II E.
                                                  Sulphur Springs, TX 75482
                                                  903.335.0145




Interrogatories to Janet Neal Stanley and Truitt Sewell                                     Page 1
                                     CERTIFICATE OF SERVICE
        I ce1iify that on          , 2010, a true and correct copy oflnterrogatories to Janet Neal
 Stanley and Truitt Sewell was served on each attorney of record or party in accordance with the
 Texas Rules of Civil Procedure via hand delivery:

         Chad Cable, 323 Gilmer Avenue, Sulphur Springs, TX 75 482.



                                                   Carlton Sewell




Interrogatories to Janet Neal Stanley and Truitt Sewell                                    Page 2
                                DEFINITIONS AND INSTRUCTIONS

         l.      As used herein, the terms "you" and "your" shall mean the Proponents, Janet Nea l
Stanley and/or Truitt Sewell, their attorneys, agents and all other natural persons or business or legal
entities acting or purporting to act for or on behalf ofProponents, whether authorized to do so or not.

         2.        As used herein, the term "documents" shall mean all writings of every kind, source
 and authorship, both originals and nonidentical copies thereof, in your possess ion, custody or
 control, or known by you to exist, irrespective of whether the writing is one intended for or
 transmitted internally by you, or intended for or transmitted to any other person or entity, including
 without limitation, any governmental agency, department, administrative or private entity or person.
 The tenn shall include handwritten, typewritten, printed, photocopies, photographic, or recorded
 matter. lt shal l include comm unications in words, symbols, pictures, sound record ings, films, tapes,
 and information stored in, or accessible through, computer or other infonnation storage or retrieval
systems, together with the codes and/or programming instructions and other materials necessary to
 understand and use such systems. For purposes of illustration and not limitation, the tern1 shall
 include: affidavits, agendas, agreements, analyses, announcements, bills, statements, and other
records of obligations and expenditures, books, brochures, bulletins, calendars, canceled checks,
vouchers, receipts and other records of payments, charts, drawings; check registers, checkbooks,
circulars, collateral files and contents, contacts, corporate bylaws, corporate charters,
conespondence, cred it files and contents, deeds of trust, deposit slips, diaries, drafts, files, guaranty
agreements, instructions, invoices, ledgers, journals, balance sheets, profits and loss statements, and
other sources of financial data; letters, logs, notes or memoranda of telephonic or face-to-face
conversations, manuals, memoranda of all kinds, to and from any persons, agencies, o r entities;
minutes, minute books, notes, notices, parts lists, papers, press rel eases, printed matter (including
books, articles, speeches, and newspaper clippings), purchase orders, records, records of
administrative, technical and financial actions taken or recommended; reports, safety deposit boxes
and contents and records of entry, schedules, security agreements, specifications, statement of bank
acco unts, statements, interviews, stock transfer ledger, technical and engineering reports,
eval uations, advice, recommendations, commentaries, conclusions, studies, test p.lans, manuals,
procedures, data, reports, results and conclusions, summaries, notes, and other records and
recordings of any conferences, meetings, visits, statements, interviews or telephone conversations,
telegrams, teletypes and other communications sent or received, transcripts of testimony, UCC
instruments, work papers, and all other writings, the contents of which relate to, discuss, consider
o r otherwise refer to the subject matter of the particular discovery requested.

       ln accordance with Tex.R.Civ.P § 102.7, a document is deemed to be in your possession,
custody or control if you have either actual physical possession of a document or constructive
possession ofthe document. Constructive possession means that you have a superior right to compel
the production of such document or a copy thereof from a third party having actual physical
possession of the document.

        3.       "Decedent" means Velma Ruth Fitzgerald.

        4.      "Person" or "persons" means any natural persons, firms, partnerships, associations,
joint ventures, corporations and any other fom1 of business organization or an-angement, as well as
governmental or quasi-governmental agencies. If other than a natural person, include all natural
persons associated with such entity.

                                         USE OF DEFINITIONS
        The use of any particular gender in the plural or singu lar number ofthe words defined under

Interrogatories to .Janet Neal Stanley and Truitt Sewell                                          Page3
 paragraph "I", "Definitions" is intended to include the appropriate gender or number as the text of
 any pmticular discovery may require.

                                               TIME PERIOD
         Unless specifically stated herein, all infonnation herein requested is for the time period from
January L. 2007 through the date of the documentation responding hereto. However, if information
clarifies the estate, please detail such documentation.

              DESCRJPTION OF WITHHELD MATERIAL OR INFORMATION
       Pursuant to rule 192.2(b), Tex.R.Civ.P., ifyou have withheld any material or infonnation
from production, then within 18 days after service upon Defendant ' s counsel of your Answers to
lnterTogatories, please file a response that:

         a.      Describes the infonnation or materials withheld that, without revealing the privileged
                 infom1ation itself or otherwise waving the privilege, enables other parties to assess
                 the applicability of the privilege; and

         b.      Asserts a specific privilege for each item or group of items withheld.




Interrogatories to Janet Neal Stanley and T ruitt Sewell                                        Page4
                                            INTERROGATORIES

 lnteJTogatory     o. I:   Please identify each person (by name, address and telephone number)
                           answering these InteJTogatories, supplying infonnation or assisting in any
                           way with the preparation of the answers to these Interrogatories.

ANSWER:

Interrogatory     o. 2:    Pursuant to Tex.R.Civ.P. J92 .3(d), please identify by name, address and
                           telephone number any person who has knowledge of facts relevant to this
                           lawsuit and provide a brief statement of the relevant facts attributable to each
                           such person.

ANSWER:

Interrogatory No. 3:       Pursuant to Tex.R.Civ.P. 192.3(c), please identify by name, address and
                           telephone number all experts whom you have retained for consultation whose
                           work product fonns the basis either in whole or in part of the opinions of an
                           expert who is to be called as a witness.

A SWER:

Interrogatory No. 4:       Please identify all documents consulted, examined or referred to in the
                           preparation of the answers to these interrogat01ies.

ANSWER:

Interrogatory     o. 5:    Please identify all of the legal contentions and factual basis for your
                           contentions that the wi II dated August 8, 2007, should not have been admitted
                           to probate and should be aside, without limited to, your contentions that
                           Decedent lacked testamentary capacity or that Carlton Sewell exercised
                           undue influence over Decedent.

A SWER:

Interrogatory No. 6:       Please state the name, telephone number, and address of persons having
                           relevant knowledge of the mental and physical condition of Decedent,
                           including, but not limited to, physicians, medical and other healthcare
                           providers, of Velma Ruth Fitzgerald during the period of time beginning
                           January 1, 2007 through the date of her death her death on December 31 sc,
                           2007.

A SWER:

Interrogatory No.7:        Please state the name, address and telephone number of each and every
                           hospital, clinic, out-patient facility or other healthcare provider which
                           provided Decedent care or advice or provided advise begirming January 1,
                           2007 through the date of Decedent 's death December 31 sc, 2007.

ANSWER:

Interrogatory No. 8:       Please identify all of the legal contentions and factual basis for your

Interrogatories to .Janet Neal Stanley and T ruitt Sewell                                           PageS
                          contentions that the Will dated April 26, 1993, propounded by Defendant,
                          was not revoked by Decedent.

 ANSWER:




Interrogatories to Janet Neal Stanley and Truitt Sewell                                    Page 6
                          (                                          (
                                                                                 Affidavit of Chad Cable
                                                                                       Exhibit "C"
                                           No. POS-13106

 IN THE ESTATE OF                                 §    IN THE COUNTY COURT
                                                  §
 VELMA RUTH FITZGERALD,                           §    OF
                                                  §
 DECEASED                                         §    HOPKINS COUNTY, TEXAS



                                REQUEST FOR PRODUCTION

TO:     JANET NEAL STANLEY and TRUITT SEWELL, by and through attorney of
        recor·d, Chad Cable, 323 Gilmer St., Sulphur Springs, TX 75482:

        NOW COMES CA RLTON SEWELL, Defendant, and pursuant to Rule 192 and 196

of the Texas Rules of C ivil Procedure, requests Janet Neal Stanley and Truitt Sewell to

produce and permit the inspection and copying of items requested in Exhibit " A" at 6940 TX

Hwy . II E .. Sulphur Springs, TX 75482, immediately upo n the expiration of thirty (30) days

fo llowi ng the date you are served with this set of requests for production .

        If a docu ment requested hereunder has already been produced, in response to a

previous request for productio n, subpoena, o r order in this litigation , it need not be produced

again. However, any such doc uments previously produced should be identified by date,

description and paragraph herein to which the documents are relevant.

                                             Respectfully submitted,




                                             Carlton Sewell, Defendant
                                             6940 TX Hwy. ll E.
                                             Sulphu r Spri gns, TX 75482
                                             903.335.0145




Request for Production                                                                        Page 1
                                CERTIFICATE OF SERVICE

       I certify that on           , 2010, a true and correct copy of Request for Production was
served on each attorney of record or party in accordance with the Texas Rules of Civi I Procedure
via hand deli very:

        Chad Cable, 323 Gilmer Avenue, Sulphur Springs. TX 75482.




                                            Carlton Sewell




Request for Production                                                                    Page 2
                             DEFINITIONS AND INSTRUCTIONS

         I.    As used herein , the terms "you" and "your" shall mean the Proponents, Janet
Neal Stanley and Truitt Sewell, their attorneys, agents and all other natural persons or
business or legal entities acting or purporting to act for or on behalf of Proponents, whether
authorized to do so or not.

         2.      As used herein , the term "documents " shall mean all writings of every kind ,
 source and authorship, both originals and nonidentical copies thereof, in your possession,
 custody or control , or known by you to exist, irrespective of whether the writing is one
 intended for or transmitted internally by you, or intended for or transmitted to any other
 person or entity, including without limitation, any governmental agency , department,
 administrative or private entity or person. The term shall include handwritten , typewritten ,
 printed. photocopies, photographic, or recorded matter. It shall include communications in
 words, symbols, pictures, sound recordings, fi lms, tapes, and information stored in , or
accessible through, computer or other information storage or retrieval systems, together with
the codes and/or programming instructions and other materials necessary to understand and
 use such systems. For purposes of illustration and not limitation, the term shall include:
affidavits, agendas, agreements, analyses , announcements, bills, statements, and other records
of obligations and expenditures, books , brochures, bulletins , calendars, canceled checks,
vouche rs , receipts and other records of payments, charts, drawings; check registers,
checkbooks. circulars, collateral files and contents, contacts, corporate bylaws, corporate
charters, correspondence, credit files and contents, deeds of trust, deposit slips , diaries, drafts ,
files, guaranty agreements, instructions , invoices, ledgers, journals, balance sheets, profits and
loss statements, and other sources of financial data; letters , logs , notes or memoranda of
telephonic or face-to-face conversations, manuals , memoranda of all kinds, to and from any
persons, agencies , or entities; minutes, minute books, notes , notices, parts lists, papers, press
releases, printed matter (including books , articles, speeches, and newspaper clippings),
purchase orders, records, records of administrative, technical and financial actions taken or
recommended ; reports, safety deposit boxes and contents and records of entry, schedules,
security agreements, specifications, statement of bank accounts, statements , interviews, stock
transfer ledger, technical and engineering reports, evaluations, advice, recommendations,
commentaries, conclusions, studies, test plans, manuals , procedures, data , reports, results and
conclusions, summaries, notes, and other records and recordings of any conferences,
meetings, visits, statements , interviews or telephone conversations, telegrams , teletypes and
other conununications sent or received, transcripts of testimony, UCC instruments, work
papers, and all other writings, the contents of which relate to , discuss, consider or otherwise
refer to the subject matter of the particular discovery requested .

       In accordance with Tex.R.Civ.P § 102.7, a document is deemed to be in your
possession, custody or control if you have either actual physical possession of a document or
constructive possession of the document. Constructive possess ion means that you have a
superior right to compel the production of such document or a copy thereof from a third party

Request for Production                                                                         Page 3
 having actual physical possession of the document.

        3.      " Decedent" means Velma Ruth Fitzgerald.

        4.      " Person" or "persons" means any natural persons, firms , partnerships,
associations, joint ventures, corporations and any other form of business organization or
arrangement, as well as governmental or quasi-governmental agencies. If other than a natural
person. include all natural persons associated with such entity.

                                     USE OF DEFINITIONS

        The use of any particular gender in the plural or singular number of the words defined
under paragraph " 1 ", " Definitions" is intended to include the appropriate gender or number as
the text of any particular discovery may require .

                                         TIME PERIOD

        Unless specifically stated herein , all information herein requested is for the time period
from January 1, 2007 through the date of the documentation responding hereto. However , if
info rmation clarifies the estate, please detail such documentation .

             DESCRIPTION OF WITHHELD MATERIAL OR INFORMATION

       Pursuant to rule 192.2(b), Tex.R.Civ.P., if you have withheld any material or
information from production, then within 18 days after service upon Contestant's counsel of
your Responses to Request for Protection, please file a response that:

        a.      Describes the information or materials withheld that, without revealing the
                privileged information itself or otherwise waving the privilege, enables other
                parties to assess the applicability of the privilege; and

        b.      Asserrs a specific pri vilege for each item or group of items withheld.




Request for Production                                                                       Page 4
\

                                             Exhibit "A"
                                      REQUESTS FOR PRODUCTION

    Request for Production No . 1:           Please produce all documents related to this lawsuit given
    to, obtained. reviewed , or prepared by, (i) each person whom you intend to call as an expert
    witness in this lawsuit ; and (ii) each person used for consultation and who is not expected to
    be called as a witness at trial if (a) the consulting expert's work product forms a basis either in
    whole or in part of the opinions of an expert who is to be called as a witness, or (b) the
    consulting expert 's report or work product is reviewed by or received by the expert who is to
    testify in this case.

    RESPONSE:

    Request for Production No . 2 :       Please produce all documents which relate, directly or
    indirectly, to the physical and/or mental condition of Decedent, Velma Ruth Fitzgerald , during
    the period beg inning January 1, 2007 through her death on December 31 , 2007.

    RESPONSE:

    Request for Production No . 3 :       Please produce any witness statement(s) obtained by
    Proponent to dare .

    RESPONSE :

    Request for Production No. 4 :          Please produce any and all documents which relate , either
    directly or indirectly , to Proponents ' contention that Decedent lacked testamentary capacity on
    August 8, 2007 .

    RESPONSE:

    Request fo r Production No . 5:       Please produce all documents which relate , directly or
    indirectly, to Proponents ' contention that Carlton Sewell exercised undue influence over
    Decedent during the period beginning January 1, 2007 , through and including the date of
    Decedent's death on December 31 , 2007.

    RESPONSE :




    Request for Production                                                                       Page 5
                                        EXHIBIT "B"


                                           NO. POS-13106

IN THE ESTATE OF                                   )      IN THE COUNTY COURT
                                                   )
VELMA RUTH FITZGERALD                              )      AT LAW OF
                                                   )
DECEASED                                           )      HOPKINS COUNTY, TEXAS


                  ORDER ON CONTESTANTS' NOTICE OF WITHDRAWAL
                  AND REPUDIATION OF CERTAIN DEEMED ADMISSIONS


       The Court acknowledges Contestants' Notice and Repudiation of Certain Deemed Admissions.

       The Court ORDERS that Admissions 1, 3, 5, 8, 9, 14, 15, 16 are hereby withdrawn and made of

no effect. The Court ORDERS that Contestants' Motion for Summary Judgment is likewise withdrawn

and made of no effect. The Court reiterates its prior order that the withdrawal of deemed admissions by

Carlton Sewell as to Admissions 2, 4, 6, 7, 10, 11, 12, 13 is denied, the Court finding that Carlton

Sewell did not have "good cause" for withdrawal of such Admissions in that he acted with "conscious




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                                       TRUE AND CORRECT
                                       COPY 0~ O~IGINAt
                                       FILED IN HOPKINS
                                       COUNTY CLEPK'S OFFICE
                                           EXHiBIT "C"


                                             NO. POS-13106                      FILED FO
                                                                             HOPKINS CO/~-J~~C~~D
IN THE ESTATE OF                                     )       IN THE COUNTY COifMf            ' . '-XAS
                                                     )                                      JUL - b A 8: S1
VELMA RUTH FITZGERALD                                )       AT LAW OF                    DEBet-
                                                     )                                    couufl~[1LEY
DECEASED                                             )       HOPKINS COUNTYbTEXAS                     R/{
                                                                            y_
                                                                                          - - - DEPUTY

              CONTESTANTS' NOTICE OF WITHDRAWAL AND REPUDIATION
                        OF CERTAIN DEEMED ADMISSIONS


TO THE HONORABLE JUDGE OF SAID COURT:

        COME NOW Truitt Sewell and Janet Neal Stanley, Contestants, filing this their Notice of

Withdrawal and Repudiation of Certain Deemed Admissions and would respectfully show the Court as

follows:

                                                    I.

       On May 13, 2010, Contestants served on Carlton Sewell Contestants' First Request For

Admissions. Carlton Sewell did not timely respond to the request and the admissions were, therefore,

deemed to be admitted.      On January 12, 2015, Contestants' attorney filed a Certificate of Deemed

Admissions, setting forth the admissions that were deemed as a result of Carlton Sewell's failure to

timely respond.

       Please take notice that Contestants hereby withdraw from the list of "deemed" admissions,

Admissions numbers I, 3, 5, 8, 9, 14, 15 and 16, the admissions which would have had merits-

preclusive effect. And, hereby repudiates those deemed admissions and asserts that such admissions

will not be used or relied upon in any manner nor in any context, including at the trial of this matter, in

any summary judgment proceeding, in any mandamus proceeding, and in any appeal. Contestants also

hereby withdraw and repudiate their Motion For Summary Judgment which was filed in this case.




                                                                                                II P age
Respectfully submitted,




Chad Cable
State Bar No. 03575300
323 Gilmer Street
Sulphur Springs, Texas 75482
(903) 885-1500 Telephone
(903) 885-7501 Telecopier

ATTORNEY FOR CONTESTANTS




                               2 1P age
