                                                                               ACCEPTED
                                                                           03-15-00100-CV
                                                                                   5331285
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                      5/18/2015 6:29:24 PM
                                                                         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 TEXASAUSTIN, TEXAS
                     AT AUSTIN           5/18/2015 6:29:24 PM
                                                   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



                           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
                  IDENTITY OF PARTIES AND COUNSEL
      Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a

complete list of all parties, and the names and addresses of all counsel, involved in

this case:

Appellant:
      James E. Wade
Counsel for Appellant:
      Sheldon E. Richie
      State Bar No. 16877000
      Emily J. Seikel
      State Bar No. 24072331
      Richie & Gueringer, P.C.
      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

Appellees:
      Johnny Wade
      Amanda Wade, Individually and as the Independent Executor of the Estate
      of Edell Wade

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


                                         2
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




                               3
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .........................................................2

TABLE OF CONTENTS ........................................................................................4
INDEX OF AUTHORITIES ...................................................................................5

STATEMENT OF THE CASE ...............................................................................7

REQUEST FOR ORAL ARGUMENT..................................................................9
ISSUES PRESENTED FOR RELIEF .................................................................10

STATEMENT OF FACTS ....................................................................................11
SUMMARY OF THE ARGUMENT ...................................................................24
ARGUMENT ..........................................................................................................28
   Issue 1: The Trial Court erred when it granted Defendants’ Amended
            Motion for Partial Summary Judgment Concerning the 2004 Sale
            (Pertaining to All Claims), as modified and entered by the Trial
            Court on the 11th day of April, 2014. ....................................................28
   Issue 2: The Trial Court erred when it approved of the jury’s findings in
            response to Jury Question No. 1 and Jury Question No. 2 finding
            that Johnny and Amanda Wade complied with their fiduciary
            duties to Edell Wade in connection with the Modification
            Agreement. .............................................................................................44
PRAYER .................................................................................................................61
CERTIFICATE OF COMPLIANCE ..................................................................62

CERTIFICATE OF SERVICE ............................................................................63

APPENDIX .............................................................................................................64




                                                            4
                                         INDEX OF AUTHORITIES

Cases
Boucher v. Wallis, 236 S.W.2d 519 (Tex.Civ.App.—Eastland 1951) ............. 32, 33
Chapal v. Vela, 461 S.W.2d 466 (Tex.Civ.App.—Corpus Christi 1970) .. 36, 39, 41
City of Houston v. Trail Enterprises, Inc., 300 S.W.3d 736 (Tex. 2009)................29
Cobb v. TDCJ, 965 S.W.2d 59 (Tex.App.―Houston 1st Dist.] 1998, no writ) ......29
Collins v. Smith, 53 S.W.3d 832 (Tex.App.—Houston [1st Dist.] 2001, no pet.) ..46
D.T. Carroll Corp. v. Carroll, 256 S.W.2d 429 (Tex.Civ.App.—San Antonio
  1953) .....................................................................................................................33
De Toca v. Wise, 748 S.W.2d 449 (Tex. 1998) .......................................................32
ECC Parkway Joint Venture v. Baldwin, 765 S.W.2d 504 (Tex.App.—Dallas
  1989) .....................................................................................................................32
Estate of Townes v. Townes, 867 S.W.2d 414 (Tex.App.—Houston [14th Dist.]
  1993, writ denied) .................................................................................................59
Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41
  (Tex. 1965) ...........................................................................................................28
HCBeck, Ltd. v. Rice, 284 S.W.3d 349 (Tex. 2009) ................................................29
HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998) .................................34
In re Estate of Fawcett, 55 S.W.3d 214 (Tex.Civ.App.—Eastland 2001) ....... 42, 43
In re Estate of Herring, 970 S.W.2d 583 (Tex.App.—Corpus Christi 1998, no pet.)
   ..............................................................................................................................30
In re Estate of Miller, 2014 WL 3970766, 446 S.W.3d 445 (Tex.App.—Tyler,
  Aug. 13, 2014) ......................................................................................................47
In re Guardianship Walzel, 2010 WL 335686 (Tex.App.—Corpus Christi-
  Edinburg, Jan. 28, 2010).......................................................................................47
Jennings v. Burgess, 917 S.W.2d 790 (Tex. 1996)..................................................29
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) ......................28
Jordan v. Lyles, 455 S.W.3d 785 (Tex.App.—Tyler 2015) ....................... 48, 49, 59
Kansa Reinsurance Co. v. Congressional Mortgage Corp., 20 F.3d 1362 (5th Cir.
  1994) .............................................................................................................. 32, 33
Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308 (Tex. 2002) ...........31
Matter of Estate of Matejek, 928 S.W.2d 742 (Tex.App.―Corpus Christi, 1996) ....,
  30, 31, 37, 38, 42
Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) ................................29
Minn. Mining & Mfg. Co. v. Nishika, Ltd., 953 S.W.2d 733 (Tex. 1997) ...............45
Montgomery v. Kennedy, 669 S.W.2d 309 (Tex. 1984) ..........................................28
Mooney v. Harlin, 622 S.W.2d 83 (Tex. 1981) ................................................ 36, 42
Munawar v. Cadle Co., 2 S.W.3d 12 (Tex.App.—Corpus Christi 1990) ...............34
Plas-Tex, Inc. v .U.S. Steel Corp., 772 S.W.2d 442 (Tex. 1989.) ...........................45


                                                                5
Porter v. Denas, 2006 WL 1686515, *4 (Tex.App.―San Antonio, June 21, 2006,
  pet. denied) .................................................................................................... 45, 49
Rentfro v. Cavazos IV, 2012 WL 566364 (Tex.App.―San Antonio, September 21,
  2012) .....................................................................................................................41
Rhone v. Steel, 997 S.W.2d 217 (Tex. 1999) ...........................................................30
Stephen County Museum, Inc. v. Swenson, 571 S.W.2d 257 (Tex. 1974)...............49
Texas Bank and Trust Co. v. Moore, 595 S.W.2d 502 (Tex. 1980) ................. 46, 50
Thomson Oil Royalty, LLC v. Graham, 351 S.W.3d 162 (Tex.App.—Tyler 2011,
  no pet.) ..................................................................................................................28
Veltmann v. Damon, 696 S.W.2d 241 (Tex.App.—San Antonio 1985) .................40
Vogt v. Warnock, 107 S.W.3d 778, 783-784 (Tex.App.—El Paso 2003, pet. denied)
   ..................................................................................................... 47, 48, 49, 50, 59
Zale Corporation v. Rosenbaum, 520 S.W.2d 889 (Tex. 1975) ..............................29
Statutes
TEX. ESTATES CODE § 752.051 ..........................................................................48




                                                              6
                           STATEMENT OF THE CASE
Nature of the underlying proceeding:       On behalf of the Estate of Edell
                                           Wade, Plaintiff brought action for
                                           claims for breach of fiduciary duty,
                                           tortious interference with inheritance
                                           rights, fraud, conspiracy, reformation,
                                           rescission,     judicial    foreclosure,
                                           constructive trust, defalcation, unjust
                                           enrichment, profit disgorgement and
                                           removal of executor. 1

Course of the Proceedings:                 Summary Judgment Motion Hearing
                                           held on April 11, 2014. 2

                                           Jury trial from September 29, 2014
                                           until October 6, 2014. 3

Trial Court’s Disposition of Case:         Order Granting Defendants’ Amended
                                           Motion     for  Partial    Summary
                                           Judgment Concerning the 2004 Sale
                                           (Pertaining to All Claims), as
                                           modified and entered on April 11,
                                           2014. 4

                                           Order Denying Plaintiff’s Emergency
                                           Motion to Reconsider the Court’s
                                           Order Granting 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, entered on April
                                           29, 2014. 5

1
      CR:   765-819.
2
      RR:   Vol. 2 of 4.
3
      CR:   1599-1601.
4
      CR:   611.
5
      CR:   762.


                                       7
                           Final Judgment in favor of Appellees
                           based on the Jury Verdict, as modified
                           and entered on November 17, 2014. 6

                           Order Denying Plaintiff’s Motion for
                           Judgment     Notwithstanding     the
                           Verdict, as modified and entered on
                           November 17, 2014.7

                           Order Denying Plaintiff’s Motion for
                           New Trial, entered on January 26,
                           2015. 8




6
    CR:   1599-1601.
7
    CR:   1602.
8
    CR:   1633.


                       8
                      REQUEST FOR ORAL ARGUMENT
      Appellant James E. Wade requests the opportunity to present oral argument

in this proceeding.    Oral argument will assist with clarification of the legal

arguments in this appeal, including the applicability of and distinctions of legal

precedent cited to herein. Oral argument will also be helpful in the decisional

process of the Court to the extent that facts and evidence are unclear to the Court

or are disputed between the parties. This appeal is not frivolous and the Trial

Court misapplied the law when it granted Defendants’ Amended Motion for Partial

Summary Judgment Concerning the 2004 Sale. Plaintiff seeks an opportunity to

more fully clarify, through oral argument, the bases for overturning the summary

judgment, as well as for rebutting anticipated differences between the parties

regarding the appellate record, the evidence presented at trial, and the propriety of

the Trial Court’s affirmation of the jury’s findings in response to Jury Question

No. 1 and Jury Question No. 2.




                                         9
                      ISSUES PRESENTED FOR RELIEF

                                     Issue One

      The Trial Court erred when it granted Defendants’ Amended Motion for

Partial Summary Judgment Concerning the 2004 Sale (Pertaining to All Claims),

as modified and entered by the trial court on the 11th day of April, 2014.

                                     Issue Two

      The Trial Court erred when it approved of the jury’s findings in response to

Jury Question No. 1 and Jury Question No. 2 finding that Johnny and Amanda

Wade complied with their fiduciary duties to Edell Wade in connection with the

Modification Agreement.




                                         10
                              STATEMENT OF FACTS
        In August of 2012, James “Bud” Wade brought this suit on behalf of the

Estate of his mother, Edell Wade, against his sibling Johnny Wade as well as

Johnny’s wife Amanda Wade, whom he sued individually as well as in her

capacity as independent executor of the Estate of Edell Wade. Bud seeks to

recover value and property to the Estate that has been lost over the years due to

actions of Johnny and Amanda Wade, beginning in 2004 when Johnny and

Amanda induced Edell Wade to sell her 475-acre Texas ranch to them, and

continuing through the years leading up to and after the death of Edell Wade in

2010.

        Bud Wade is the oldest of seven children of Edell Wade and Otto Wade.9

Johnny Wade is the youngest. 10 The Wade family grew up on a 475-acre ranch

located near Lampasas in Burnet County, Texas (the “Ranch”). 11 After growing up

and moving out of the family home, only three of the siblings – Bud, Nancy and

Charlene – chose to live close enough to their parents to visit regularly and to

provide assistance with chores, farm repairs, doctor visits and other

appointments.12 Edell’s husband Otto passed away in 1996 and Edell continued to



9
        CR:   [James “Bud” Wade Affidavit] at 477 par. 2; 478 par. 7.
10
        CR:   [James “Bud” Wade Affidavit] at 478 par. 7.
11
        CR:   [Nancy Burns Affidavit] at 473 par. 2.
12
        CR:   [Nancy Burns Affidavit] at 473 par. 3; [James “Bud” Wade Affidavit] 477 at par.
        4.


                                             11
live on the Ranch alone, with her children Bud and Nancy living only a short drive

away. 13

      In 2003, Johnny Wade decided to move back from California to Lampasas

after over fifteen years living away from Lampas. 14 Johnny and his wife Amanda,

who was a California lawyer with experience in estate planning, met with Edell

Wade in December 2003 and introduced their idea to move back to Texas and to

buy the Ranch.15 As testified to by Johnny, Edell initially did not want to sell the

Ranch.16 But, as Amanda testified, Johnny and Amanda told Edell that the only

circumstance under which they would move back to Texas would be if she sold the

Ranch to them. 17

      At the time, Edell was an 89-year old woman living on the Ranch, the place

she loved most in the world. 18 She was still very active in her church and the

community. 19 Edell had children living nearby who could and did provide care

and companionship, and who had been living close to her for over 40 years. 20 She

was mentally and physically healthy enough to manage her affairs and did not need

13
      CR: [Nancy Burns Affidavit] at 474 par. 4; [James “Bud” Wade Affidavit] 477 at par.
      4.
14
      CR: [James “Bud” Wade Affidavit] 477 at par. 8.
15
      CR: [Amanda Wade Deposition] 401-402, 405, 406, 409,412; [Johnny Wade
      Deposition] 430.
16
      CR: [Johnny Wade Deposition] 430.
17
      CR: [Amanda Wade Deposition] 406,412.
18
      CR: [Nancy Burns Affidavit] at 474 par. 7; [James “Bud” Wade Affidavit] at 478 par.
      5.
19
      Id.
20
      Id.


                                           12
live-in help or anyone to make her business and medical decisions for her. 21

Johnny Wade testified that Edell was “capable of being on her own and wanted to

be on her own.”22 In fact, Edell did not need assistance with her affairs until the

last year of her life (i.e., 2009-2010), as testified to by Amanda. 23

      Johnny and Amanda convinced Edell to sell the Ranch to them and, on or

about January 6, 2004, Johnny Wade, Amanda Wade, and Edell Wade met with

Pat Cavness, a local attorney who had served as Edell Wade’s attorney over the

years, to discuss the sale of the Ranch.24 Edell and her deceased husband had a

long-standing relationship with Mr. Cavness, who had worked over the years with

the couple to prepare their wills. 25 Mr. Cavness recommended “a regular interest

rate.”26 The prime rate of interest at that time was 4.25%. 27 However, at the

meeting, a 2% interest rate was provided. 28          Mr. Cavness drafted the initial

documents for the sale and on January 16, 2004, he sent drafts of the Warranty

Deed with Vendor’s Lien, Promissory Note, Deed of Trust, Closing Agreement,

and Settlement Statement to Johnny and Amanda for their review; however those




21
      Id.
22
      CR: [Johnny Wade Deposition] 436.
23
      RR: [Amanda Wade Deposition] 409,413.
24
      CR: [Pat Cavness File] 347.
25
      CR: [Pat Cavness File] 382, 383; [Amanda Wade Deposition] 407-408.
26
      CR: [Amanda Wade Deposition] 407.
27
      See http://www.fedprimerate.com/wall_street_journal_prime_rate_history.htm.
28
      CR: [Pat Cavness File] 347.


                                           13
documents were never signed. 29 Mr. Cavness also drafted a non-representation

letter to advise Johnny and Amanda that he represented Edell’s interests, and not

theirs. 30 On January 23, 2004, Amanda returned the drafts of the documents that

Edell’s attorney had created, with many handwritten changes that were favorable

to Johnny and Amanda (including a reduced default interest rate from 18% to

12%), and directed Mr. Cavness to revise the documents per her instruction. 31 Mr.

Cavness rejected Amanda’s changes on behalf of his client Edell. 32 Amanda

testified “I didn’t want to continue using him” and fired Mr. Cavness.33 No

attorney was again involved to represent Edell’s individual interests in the sale of

the Ranch. The Ranch was the single most significant asset that Edell Wade

possessed. 34

      After firing Edell’s longtime attorney, Defendants retained their own legal

counsel selected by Amanda – attorneys with the law firm of Armbrust & Brown

LLP, located miles away in Austin, Texas – to incorporate Amanda’s desired

contract language to the documents.35 Johnny and Amanda paid for those legal

services.36 There is no evidence that the Armbrust & Brown lawyers ever met with


29
      CR:       [Pat Cavness File] 349- 362;[Amanda Wade Deposition] 407-408.
30
      CR:       [Pat Cavness File] 363.
31
      CR:       [Pat Cavness File] 364-380.
32
      CR:       [Pat Cavness File] 364.
33
      CR:       [Amanda Wade Deposition] 407.
34
      CR:       [Inventory and Appraisement] 336-337.
35
      CR:       [Amanda Wade Deposition] 407-408; [Johnny Wade Deposition] 431.
36
      CR:       [Amanda Wade Deposition] 408.


                                             14
or spoke to Edell. Edell Wade was not represented by an attorney in the sale of the

Ranch, the most valuable property that she owned. 37

      The Armbrust version of the sale documents were drafted at the sole

direction of Amanda and were identical to the version that she (a licensed attorney

at the time) had tried in vain to push through with Edell’s lawyer Mr. Cavness but

were rejected by Mr. Cavness on behalf of Edell before Amanda fired him. 38 On

February 6, 2004, the Deed of Trust, Warranty Deed with Vendor’s Lien

(hereinafter “Warranty Deed”), and Promissory Note (the “Note”) (collectively the

three documents are the “Sale Documents”) prepared by the Armbrust & Brown

attorneys and including the changes proposed by Amanda, were executed. 39 On

March 3, 2004, the Deed of Trust and the Warranty Deed were filed of record in

the Official Public Records of Burnet County, Texas. 40 The purchase price and

other terms of the sale (such as the interest rate) are not discernible from those

documents filed in public records. 41

      As evidenced by the Note, the sale was owner-financed by Edell Wade.42

The terms of the Note required Johnny and Amanda to pay Edell $500,000 over a



37
      CR:    [Inventory and Appraisement] 336-337.
38
      CR:    [Deed of Trust] 321-335; [Pat Cavness File] 349- 362; [Johnny Wade Deposition]
      431.
39
      CR:    [Deed of Trust] 321-335; [Warranty Deed with Vendor’s Lien] 463-472.
40
      CR:    [Deed of Trust] 321-335; [Warranty Deed with Vendor’s Lien] 463-472.
41
      Id.
42
      CR:    [Promissory Note] 544-546.


                                           15
period of 32 years at an annual interest rate of two percent (2%). 43 The Note, made

when Edell Wade was 89 years old, was due to mature in 2036, or when and if,

Mrs. Wade lived to be 121 years old. 44 Only the monthly interest payment was

required for the first two years (i.e. approximately $10,000/year or $833/month) (a

provision added by Johnny and Amanda’s attorneys). 45 Then, beginning February

1, 2006, Johnny and Amanda would be required to pay a combined principal and

interest amount of $1,848.10.46

      The Closing Agreement, which was signed by Edell, Johnny and Amanda

Wade states that $150,000 of the $500,000 purchase price was paid for “one acre

of land and the small frame house.”47 Pat Cavness’ notes from the initial meeting

about the sale also indicate that $150,000 was for the house, and $350,000 was

allocated to the balance. 48 As such, the remaining 474 acres of the Ranch property

were sold for $350,000, a small fraction of its fair market value. The actual value

of the Ranch in 2004 was more than $350,000 and more than $500,000, and one

appraiser has approximated its 2004 value at $835,000.49 The value at the time of

Edell’s death and the administration of the Estate, and today, would be

significantly higher.

43
      Id.
44
      Id.
45
      Id.
46
      Id.
47
      CR:    [Closing Agreement] 591.
48
      CR:    [Pat Cavness File] 347.
49
      CR:    [Summary Appraisal] 481-543.


                                            16
       In 2005, after the sale, Johnny and Amanda left California and moved onto

the Ranch with Edell Wade. 50 There was no expectation from the other siblings

that wrongdoing would occur or that Johnny and Amanda would take advantage of

or unduly influence Edell Wade.51 However, over the years, Bud, his wife Gwen

and sister Nancy did begin to feel unwelcome during their visits to Edell on the

Ranch, and no longer could freely access the Ranch after it became Johnny and

Amanda’s property. 52 It also became evident that Johnny and Amanda, over time,

tightened their level of control over Edell Wade’s access to the outside world,

activities, and personal affairs. 53

       On or about March 21, 2007, Edell Wade executed a Statutory Durable

Power of Attorney appointing Amanda Wade as her attorney-in-fact with a “broad

and sweeping” general power of attorney, with no exclusions or exemptions.54

Amanda consented to and accepted the Power of Attorney and was aware that she

held the power of attorney. 55 Neither Bud Wade nor his sister Nancy (who had

previously held a power of attorney for her mother since 1993), were advised by

Johnny and Amanda of the change in the power of attorney and the appointment of


50
       CR: [James “Bud” Wade Affidavit] 477 par. 3; [Nancy Burns Affidavit] 474 par. 7.
51
       CR: [James “Bud” Wade Affidavit] 478 par. 7, par. 8, 479 par. 12; [Nancy Burns
       Affidavit] 474 par. 7, 475 par. 11.
52
       CR: [James “Bud” Wade Affidavit] 478 par. 9, 479 par. 10, par. 11, par 12; [Nancy
       Burns Affidavit] 474 par. 8, 475 par. 9, par. 10.
53
       Id.
54
       RR: Vol. 3 of 4 at 4-5 [Statutory Durable Power of Attorney].
55
       CR: [Amanda Wade Deposition] 410.


                                            17
Edell’s daughter-in-law Amanda Wade as attorney-in-fact instead of her daughter,

Nancy Burns. 56

      In 2009, while Amanda Wade still had the power-of-attorney, a

Modification Agreement was executed that modified the terms of the Note.

Johnny and Amanda retained Michael Martin of the law firm of Martin, Millican,

Henderson & Shrum (“Martin & Millican” herein) – a firm they’d already been

using for other legal needs – to prepare the Modification Agreement. 57 The Martin

& Millican file on the Modification Agreement identifies the client in the matter as

“Johnny Wade et ux.” 58 The Martin & Millican file contains a work order that

logged the date and line items of work done on the Modification Agreement. 59 The

name “Edell Wade” does not appear anywhere in the work order, but Johnny and

Amanda’s names do.60 The file also contains a copy of a June 15, 2009, invoice

for balance due of $299.30 to “Mr. & Ms. Johnny Wade” for “modification of

note”; the invoice does not contain the name “Edell Wade” in the description of

services rendered, as a client, nor as a recipient of the bill. 61 The file also contains

a copy of a June 15, 2009, letter to Johnny and Amanda Wade stating “Enclosed


56
      CR: [James “Bud” Wade Affidavit] 479 par. 12; [Nancy Burns Affidavit] 474 par. 6,
      par. 8, 485 par. 9.
57
      CR: [Amanda Wade Deposition] 410; RR Vol. 3 of 4 at 6-13 [Modification
      Agreement]; RR Vol. 3 of 4 at 14-85 [Martin & Millican File].
58
      RR: Vol. 3 of 4 at 14, 15 [Martin & Millican File].
59
      RR: Vol. 3 of 4 at 15 [Martin & Millican File].
60
      Id.
61
      RR: Vol. 3 of 4 at 19 [Martin & Millican File].


                                           18
are a copy of recorded Modification Agreement, the original of which has been

sent to Edell Wade and your file regarding the matter which you left with us. Also

enclosed is a bill for services.” 62

       The only evidence of communication between Michael Martin or anyone at

the firm and Edell Wade regarding the Modification Agreement is dated after the

execution of the Modification Agreement, and is a two-line correspondence to

Edell dated June 15, 2009, that states “Enclosed is original recorded Modification

Agreement for your files. A copy has been sent to Johnny and Amanda Wade.”63

In contrast, the file does contain an account statement to Edell Wade for legal work

on her will in 2007, and which had a different file number. 64

       The Martin & Millican file logs that on April 15, 2009, an office conference

with the “client” (i.e., Johnny and Amanda) was held regarding the desire “to drop

note to 0% or take ¼ off principal balance.” 65 Michael Martin did in fact prepare

the Modification Agreement, and, inconsistent with the initial intake notation that

the intent was to either drop the rate to 0% or reduce the principal balance, the

Modification Agreement that was ultimately signed by Edell Wade served to both




62
       RR:    Vol. 3 of 4 at 21 [Martin & Millican File].
63
       RR:    Vol. 3 of 4 at 20 [Martin & Millican File].
64
       RR:    Vol. 3 of 4 at 47 [Martin & Millican File].
65
       Id.


                                               19
materially reduce the principal balance and eliminate the interest rate.66 In a letter

to Johnny Wade dated May 26, 2009, Michael Martin wrote:

      “Dear Johnny:
      Enclosed you will find the Modification Agreement on the note to
      your mother in which 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. If this is satisfactory,
      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 of you can come by with the Modification and
      sign here. Also enclosed is an amortization schedule on the modified
      note. If you have any additional changes, please let me now.
      Thank you.

      Sincerely yours,
      Michael M. Martin.”67

      The Modification Agreement reduced the interest rate from 2% to 0% and,

thus, the monthly payment from $1,849 to $1,200.68 The principal was further

reduced to $227,528, which is a reduction in the amount of at least $40,000 from

the true amount owed on the Note at the time. 69 The Modification Agreement

resulted in lower monthly payments as well as a lower balance due on the

principal.




66
      RR: Vol. 3 of 4 at 6-13 [Modification Agreement].
67
      RR: Vol. 3 of 4 at 24 [Martin & Millican File].
68
      CR: [Amanda Wade Deposition] 414;
69
      RR: Vol. 3 of 4 at 6-13 [Modification Agreement]; Vol. 4 of 4 at 3 [Defendants’
      payment chart]; Vol. 3 of 4 at 3 [Lori Graham’s amortization schedule].


                                           20
      However, the face of the Modification Agreement does not say anything

regarding a reduction in principal, and actually states, in bold-face capital letters

on the first page, that its purpose was exclusively for the elimination of interest:

      *THE   PARTIES  STATE    HEREBY      THAT THIS
      MODIFICATION IS FOR THE SOLE PURPOSE OF
      ELIMINATING THE OBLIGATION OF OBLIGOR TO PAY
      TO HOLDER INTEREST ON THIS LOAN.* 70

      Edell Wade signed the Modification Agreement. 71 On June 9, 2009, the

Modification Agreement was filed in the Official Public Records of Burnet

County, Texas. 72

      In 2010, Amanda Wade sent a handwritten note to Lori Graham, Edell

Wade’s accountant, in connection with preparation of Edell Wade’s 2009 tax

return. In that handwritten note, which was stuck to a page of the amortization

schedule on the Note, Amanda Wade stated:

            “Lori – We paid Mrs. Wade house payments w/ interest through
      May. She then relieved us of our interest and changed our note to
      principal only. So she only has interest income from us for 5
      months.”73

      Also handwritten on the amortization schedule was the notation “principal

only” and an “X” over a portion of the payments for 2009. 74 There was no

notation of a change to the principal balance on the amortization schedule, nor
70
      RR:    Vol. 3 of 4 at 6-13 [Modification Agreement].
71
      RR:    Vol. 3 of 4 at 6-13 [Modification Agreement].
72
      RR:    Vol. 3 of 4 at 6-13 [Modification Agreement].
73
      RR:    Vol. 3 of 4 at 3 [Amanda Wade Note to Lori Graham].
74
      Id.


                                           21
mention by Amanda Wade of the second effect of the Modification Agreement,

which was the principal reduction. 75

      During Edell’s lifetime she made clear her intent to treat each of her seven

children equally.   She repeatedly named each of her seven children as equal

beneficiaries in a number of certificates of deposit, and did the extra paperwork

required for naming each of the seven beneficiaries upon every renewal. 76 Her

will, executed in 2003, left all of her estate to the seven children to “share and

share alike.”77 Amanda testified that Edell’s wishes “were that all seven children, I

believe, would take equally.” 78

      In the years leading up to Edell’s passing after Johnny and Amanda had

moved to the Ranch, Bud and his wife Gwen, as well as his sister Nancy, sensed a

growing air of unwelcome from Johnny and Amanda when visiting Edell at the

Ranch, and it became evident that Johnny and Amanda did not enjoy their visits.79

Upon arrival to visit, Johnny or Amanda would be quick to arrive in the room, but

not to partake in any visiting; rather, they seemed to be monitoring the family




75
      Id.
76
      CR: [Nancy Burns Affidavit] 474 par. 6.
77
      CR: [2003 Will of Edell Wade] at 388-391.
78
      CR: [Amanda Wade Deposition] at 411.
79
      CR: [James “Bud” Wade Affidavit] 478 par. 9, 479 par. 10, par. 11, par 12; [Nancy
      Burns Affidavit] 474 par. 8, 475 par. 9, par. 10.


                                           22
visits. 80 Bud learned that Johnny and Amanda had taken away Edell’s ability to

collect and manage her own mail. 81 He learned that Johnny and Amanda had

intentionally locked the entrance gate to the Ranch to prevent family visits, a fact

admitted to by Amanda. 82 Johnny also admitted that “they only way to take care of

[his] mother’s best interest was to exclude all [his] other siblings.” 83

      On August 14, 2010, Edell Wade passed away.                   On October 4, 2010,

Amanda Wade, as independent executor of the Estate of Edell Wade, filed the

Inventory and Appraisement for the Estate identifying the debt owed by she and

Johnny to the Estate. 84 The Inventory and Appraisement put Bud on notice that

something was amiss with the 2004 sale of the Ranch and with Edell’s finances.85

It was only after his mother’s death that Bud learned from Nancy that Johnny had

stated to Edell that he could only afford to pay $500,000 for the Ranch. 86 He also

learned from Nancy that, at the time of the 2004 sale, Nancy had asked Johnny to

send out a letter to all of the siblings notifying them of the sale, but that Johnny

refused to do it because he knew the sale would not happen if he told his brothers



80
      CR: [James “Bud” Wade Affidavit] 478 par. 9, 479 par. 10, par. 11, par 12; [Nancy
      Burns Affidavit] 474 par. 8, 475 par. 9, par. 10. [James “Bud” Wade Affidavit] 336-338.
      [Nancy Burns Affidavit] 473-476.
81
      CR: Id.
82
      CR: Id.; [Amanda Wade Deposition] 421.
83
      CR: [Johnny Wade Deposition] 438.
84
      CR: [Inventory and Appraisement] 336-338.
85
      CR: [James “Bud” Wade Affidavit] 479 par. 13.
86
      CR: [Nancy Burns Affidavit] 475 par. 11.


                                             23
and sisters of his plans.87 Johnny testified that he did not communicate with his

siblings about the sale at the time it took place or the time leading up to it. 88

      In October of 2010, Bud, spurred by receiving a copy of Amanda’s

Inventory and Appraisement, obtained a copy of the Modification Agreement from

the Official Public Records of Burnet County, Texas.89 Bud also became aware of

the contents of Edell Wade’s file as retained by Pat Cavness, which his sister

Nancy had obtained.90 Although Bud had an increasing concern over time that

Johnny and Amanda had been controlling Edell Wade, and even aggressive

towards Johnny’s siblings on occasion, it wasn’t until he was able to review the

Inventory and Appraisement, the Modification Agreement and the contents of Mr.

Cavness’ file that he realized that the extent of their financial control over Edell,

the extent of their self-interested actions, and the benefit that they had received

from their position.91

                         SUMMARY OF THE ARGUMENT
      In 2004, Johnny and Amanda Wade, the son and daughter-in-law of Edell

Wade, induced 89-year-old Edell Wade to sell her Ranch to them at far below fair

market value, with seller-financing and on terms wholly favorable to themselves

and not to Edell.        They moved onto the Ranch with Edell and positioned

87
      CR:    [Nancy Burns Affidavit] 475 par. 11.
88
      CR:    [Johnny Wade Deposition] 431-432.
89
      CR:    [James “Bud” Wade Affidavit] 479 par. 13.
90
      CR:    [James “Bud” Wade Affidavit] 479 par. 13; [Pat Cavness File] 347-387.
91
      CR:    [James “Bud” Wade Affidavit] 479 par. 13.


                                            24
themselves in a relationship of trust and confidence with Edell, which created a

fiduciary relationship and which the Trial Court instructed the jury was in fact a

fiduciary relationship.   Johnny and Amanda proceeded to take control of her

everyday affairs and to limit her access to the outside world and to the rest of her

family. In 2007, Amanda Wade became attorney-in-fact for Edell Wade under a

Power of Attorney. In 2009, Johnny and Amanda instigated a Modification to the

terms of the Note from the sale of the Ranch, and eliminated the interest as well as

reducing the principal in the amount of at least $40,000. By the time of Edell’s

death in 2010, the Estate had been denuded of its greatest asset – the Ranch – in

return for a zero-interest 32-year note that was far less than the value of the Ranch.

Johnny and Amanda were fiduciaries to Edell Wade at the time of the 2004 sale

and at the time of the 2009 Modification, yet in each transaction they benefitted

and she did not.

      Edell did not receive any independent advice or have the benefit of full

disclosure or scrupulous honesty, as required by Texas fiduciary law. Johnny and

Amanda Wade’s breaches of fiduciary duty were robust and well-documented.

The Modification Agreement on its face is misleading and deceptive because its

stated purpose is exclusively for the elimination of interest, and it does not

acknowledge any principal reduction. There is no evidence that Edell Wade knew

about the principal reduction; in fact the documentation reveals that neither the



                                         25
lawyer nor Edell’s accountant was made aware of a principal reduction.92 The

lawyer who drafted simply “inserted” an amount dictated by Amanda, and the

accountant was told about the interest elimination only, and in 2010 – well after the

execution of the Modification.       The Trial Court erred in affirming the jury’s

findings regarding whether Johnny and Amanda respectively complied with their

fiduciary obligations in relation to the Modification Agreement in 2009.

      Bud Wade, who was not a party the sale of the Ranch and who had no duty

in connection therewith, only discovered the unfavorable terms of the Note and

later Modification in connection with the administration of the Estate in 2010, and

he brought suit on behalf of the Estate in an effort to remedy the wrongs done to

Edell and her Estate by Johnny and Amanda.              The Trial Court ignored the

discovery rule and the fact that, under the law, Bud had no duty to investigate the

sale and, as such, could not be imputed with constructive notice of public records.

      The Trial Court also wrongly imputed notice of financial terms of the 2004

sale and other information that were not within any actual knowledge of Bud, and

that would have been impossible to glean from the content of any public records.

The documents that were filed of public record at the time of the sale of the Ranch

– the Deed of Trust and Warranty Deed – did not reveal the purchase price or the



92
      RR: Vol. 3 of 4 at 14-86 [Martin & Millican File]; Vol. 3 of 4 at 3 [Amanda Wade
      Note to Lori Graham].


                                           26
terms of the sale, such as the interest rate. 93 The information that was critical to,

and the basis for, Bud’s claims was simply not discoverable from any publicly

filed document pertinent to the 2004 sale of the Ranch. The Trial Court was thus

wrong to grant summary judgment and prevent Bud from bringing his claims

regarding the 2004 sale to be heard in front of a jury.

      The transcript of the summary judgment hearing clearly documents that the

Trial Court made improper findings of fact based on the Judge’s personal feelings

on familial relationships. 94    Because of the Trial Court’s mistake, Bud lost

rescission of the sale of the Ranch as a remedy and was barred from telling the

whole story to the jury. He was deprived of an opportunity to demonstrate to the

jury the true magnitude of loss caused by Johnny and Amanda’s manipulation of

the sale of the Ranch for far below market value in 2004. By inducing Edell to

make the sale, and then by methodically asserting increasing levels of control over

Edell’s decision-making and over her contact with her own children, Johnny and

Amanda destroyed Edell’s relationship with her family and successfully altered

Edell’s lifetime plan to have all seven of her children share equally upon her death.

Johnny and Amanda now own the Ranch at a rock-bottom price and the remaining

balance due to the Estate on the Note is far less than the value of the Ranch in

2004, in 2010 upon Edell’s death, and what the Ranch is worth today.

93
      CR:    [Deed of Trust] 321-335; [Warranty Deed with Vendor’s Lien] 463-472.
94
      RR:    Vol. 2 of 4 [Summary Judgment Hearing Transcript].


                                           27
      Bud seeks to right the wrongs done by Johnny and Amanda to his mother

and his family, to be permitted his day in court where the whole and true story may

be told to a jury. At the instant underlying trial, the Trial Court’s improper

summary judgment ruling stunted the story because the 2004 sale of the Ranch was

off the table. This story is one of magnitude and involves ongoing breaches of

fiduciary duty and manipulation, yet the jury was only given the opportunity to

hear about the 2009 Modification. Plaintiff respectfully asks this Court to right the

errors made by the Trial Court and remand for a new trial.

                                  ARGUMENT

Issue 1:     The Trial Court erred when it granted Defendants’ Amended
             Motion for Partial Summary Judgment Concerning the 2004 Sale
             (Pertaining to All Claims), as modified and entered by the Trial
             Court on the 11th day of April, 2014.
      The usual presumption that a judgment is correct upon appeal does not apply

in appeals of summary judgments. Montgomery v. Kennedy, 669 S.W.2d 309, 311

(Tex. 1984).    Evidence favorable to the non-movant will be taken as true.

Thomson Oil Royalty, LLC v. Graham, 351 S.W.3d 162, 165 (Tex.App.—Tyler

2011, no pet.).    Evidence that favors the movant’s position will rarely be

considered unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio

Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). Any conflicts are to be

resolved in the appellant’s favor. Joe v. Two Thirty Nine Joint Venture, 145

S.W.3d 150 (Tex. 2004). An appellate court reviews a trial court’s summary


                                         28
judgment de novo. HCBeck, Ltd. v. Rice, 284 S.W.3d 349 (Tex. 2009). When a

party moves for both no-evidence summary judgment and traditional summary

judgment, the Court of Appeals will first review the trial court’s judgment under

the no-evidence standard. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248

(Tex. 2013).   If the reviewing court determines that summary judgment was

improperly granted, the reviewing court will reverse the judgment and remand the

cause for a trial on the merits. City of Houston v. Trail Enterprises, Inc., 300

S.W.3d 736, 737 (Tex. 2009).

      A summary judgment based on an affirmative defense, as here, presents “a

particularly heavy burden” for a defendant to carry, since that defendant must

also conclusively establish all elements of the affirmative defense. Cobb v. TDCJ,

965 S.W.2d 59, 61 (Tex.App.―Houston 1st Dist.] 1998, no writ) (reversing

summary judgment). In a summary judgment on limitations, when the non-movant

asserts that limitations has been tolled, the summary judgment movant must

conclusively negate the applicability of the tolling and the movant cannot be

entitled to summary judgment on a limitations defense absent a conclusive

establishment of such. Zale Corporation v. Rosenbaum, 520 S.W.2d 889, 890

(Tex. 1975); Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996).            Thus,

because Plaintiff properly pled the discovery rule, it was the Defendants’ burden at

summary judgment to further (1) conclusively establish the discovery rule does not



                                        29
apply and (2) conclusively negate it if does apply. Rhone v. Steel, 997 S.W.2d

217, 223-4 (Tex. 1999); Matter of Estate of Matejek, 928 S.W.2d 742

(Tex.App.―Corpus Christi, 1996) writ denied per curiam.

      The Order on the 2004 Sale was improper because genuine issues of

material fact existed to precluded summary judgment, and Defendants failed to

conclusively prove all essential elements of their affirmative defense of statute of

limitations as a matter of law. The Defendants argued against the application of

the discovery rule but failed to prove as a matter of law that there was no genuine

issue of material fact regarding the date when Plaintiff did discover or should have

discovered Defendants’ misconduct and resulting injury. See Matter of Estate of

Matejek, 928 S.W.2d 742 (Tex.App.―Corpus Christi, 1996) writ denied per

curiam (grantee’s estate had burden to conclusively establish when grantor

discovered or should have discovered the fraud, and its summary judgment

evidence did not meet that burden of proof); see also 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 issue of fact about when the

plaintiff discovered or should have discovered the nature of the injury.”).




                                         30
      Plaintiff provided summary-judgment evidence that raised many fact issues

on the discovery rule. Plaintiff testified by affidavit that he did not discover, and

could not have discovered, critical facts regarding Defendants’ misconduct until

after the death of his mother, Edell Wade, including but not limited to the price,

terms and forgiveness of indebtedness. 95 The Plaintiff discovered a “sale” but had

no knowledge, no way to discover (the basis for the fraud claims were not

discernible from any publicly filed records), and no duty to discover that the “sale”

was a result of Defendants’ misconduct until much later. Despite such evidence,

the Trial Court failed to meet its requirement to take as true all evidence favorable

to the non-movant Plaintiff and to view the evidence most favorably to the non-

movant Plaintiff and to indulge every reasonable inference and resolve all doubts

in favor of non-movant Plaintiff. Limestone Prods. Distrib., Inc. v. McNamara, 71

S.W.3d 308, 311 (Tex. 2002).

      The Trial Court also misunderstood or misapplied the law and seemingly

ignored several exceptions and caveats to the general rule of imputing constructive

notice from public records, such as (1) that “if the claimed fraud occurred in the

inducement, recordation of the document does not, of itself, give notice of the

fraud,” (Matejek, 928 S.W.2d at 744) and (2) a person may not be charged with

constructive notice of information in public records, for purposes of limitations,

95
      CR: [James “Bud” Wade Affidavit] 478 par. 7, par. 8, 479 par. 12, par. 13; [Nancy
      Burns Affidavit] 474 par. 7, 475 par. 11.


                                           31
unless that person was under an obligation to search the records; and (3) the rule

that constructive notice is limited to the facts reflected on the face of the records,

i.e. what is actually discernible from the public records. Id; Kansa Reinsurance

Co. v. Congressional Mortgage Corp., 20 F.3d 1362, 1370 (5th Cir. 1994). The

Trial Court also improperly made a finding of fact as to Plaintiff’s due diligence

and when he had constructive notice of the basis for his claims seeking rescission

of the 2004 Sale.

Constructive notice is not a bar to actions for fraud or breach of fiduciary
duty
      “The purpose of recording laws is to notify subsequent purchasers of the

rights such instruments are intended to convey, and not to give protection to

perpetrators of fraud.” Boucher v. Wallis, 236 S.W.2d 519, 526 (Tex.Civ.App.—

Eastland 1951). The Texas Supreme Court has held that constructive notice of

county records does not operate as a bar to fraud actions, and Texas appellate

courts have extended the same rule to breach of fiduciary duty causes of action.

De Toca v. Wise, 748 S.W.2d 449, 451 (Tex. 1998) (constructive notice under the

real property statutes is not a defense to a buyer’s action asserting DTPA violations

and fraud); ECC Parkway Joint Venture v. Baldwin, 765 S.W.2d 504, 509

(Tex.App.—Dallas 1989) (no entitlement to summary judgment on grounds of

constructive notice of height restriction through deed records, applying De Toca

rule on constructive notice to breach of fiduciary duty and negligent


                                         32
misrepresentation). Defendants’ statute of limitations arguments were required to

fail as a matter of law, to the extent they relied on the constructive notice allegedly

provided to Plaintiff by the 2004 recording to defeat fraud and breach of fiduciary

duty claims.

Plaintiff had no duty of reasonable diligence as to the 2004 sale of the Ranch
      The trial court improperly imposed a duty of reasonable diligence upon the

Plaintiff regarding the 2004 sale of the Ranch. 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). “The recording of a deed is

only constructive notice of its contents to those whose duty it is to search the

records.” D.T. Carroll Corp. v. Carroll, 256 S.W.2d 429, 434 (Tex.Civ.App.—

San Antonio 1953); Boucher v. Willis, 236 S.W.2d 519 (Tex.Civ.App.—Eastland

1951) (in suit by minor wards seeking to set aside probate court’s order authorizing

the sale of their mineral interest by guardian, wards could not have discovered

fraud by exercise of ordinary due diligence until shortly before the suit; recording

of deed was not constructive notice of fraud because wards were not under any

legal duty to examine deed records and they were not in possession of facts that

would cause them to inspect the records).



                                          33
      Defendants failed to prove that Plaintiff had any such duty or obligation of

due diligence or that Plaintiff was in possession of facts that would cause him to

investigate the sale. The evidence was undisputed that Plaintiff was not a party to

the sale, was not a third-party beneficiary to the sale, was not involved in the sale,

and was not even aware of the sale when it occurred in 2004, although he did learn

of it at some point after. 96 In 2004, several years prior to Edell’s death, Bud had no

reason to question the sale because he had no knowledge of the terms of the

transaction, of its fairness or unfairness, and had no duty of reasonable diligence

under the law. Plaintiff did not acquire “constructive notice because there was no

occasion for him to search the records when he had no reason to know or suspect

that” Defendants purchased Edell Wade’s property under egregiously one-sided

terms to her detriment and their gain. See HECI Exploration Co. v. Neel, 982

S.W.2d 881, 888 (Tex. 1998); see also Munawar v. Cadle Co., 2 S.W.3d 12

(Tex.App.—Corpus Christi 1990) (purchaser had no constructive notice of

recorded agreement providing that a third-party owned gasoline pumps because

there was nothing in the chain of title which would have referred him to that

agreement). Thus, he could not be imputed with notice of the contents of the

public records on the transaction.




96
      CR:    [James “Bud” Wade Affidavit] 478 par. 6, 7.


                                            34
      Months after the sale, when Johnny and Amanda moved back to Texas in

2005, Bud still had no reason to suspect his brother and sister-in-law would do

anything to take advantage of their mother. 97 Eventually over the years after they

moved in at the Ranch, Bud, his wife Gwen and his sister Nancy did begin to feel

increasingly unwelcome to visit Edell at the Ranch, and Johnny and Amanda

appeared to want to control and monitor any visits.98 However, Bud’s frustration

with Johnny and Amanda’s demeanor and their seeming desire to control Edell

Wade’s ability to have family visit the property does not alone trigger a duty to

investigate all of his mother’s financial affairs while she was still living, of sound

mind, and capable.

      The Plaintiff’s discovery of Defendants’ misconduct truly did not occur until

after the death of his mother when they were wrapping up her affairs.99 During

this time, after reviewing the Inventory of his mother’s estate and the Modification

Agreement, the Plaintiff became concerned that Defendants had taken financial

advantage of his mother Edell.100 At no time was Bud ever informed by Edell or

by Johnny or Amanda of the terms of either the sale of the Ranch or the

Modification Agreement, including the price, the interest rate, the alleged

97
      CR: [James “Bud” Wade Affidavit] 478 par. 6, 7, 8.
98
      CR: [James “Bud” Wade Affidavit] 478 par. 9, 479 par. 10, par. 11, par 12; [Nancy
      Burns Affidavit] 474 par. 8, 475 par. 9, par. 10. Id.; CR: [Nancy Burns Affidavit] 473-
      476.
99
      CR: [Nancy Burns Affidavit] at 474 par. 7; [James “Bud” Wade Affidavit] at 478 par.
      5.
100
      CR: [James “Bud” Wade Affidavit] 479 par. 13.


                                             35
forgiveness of principal, the elimination of the interest rate or any other terms. 101

Bud learned the details only after the passing of his mother and in connection with

the administration of her estate.102

      Prior to his mother’s death, Bud had no duty to investigate her financial

decisions and transactions. A duty did arise, however, after Edell’s death because

Bud was a beneficiary of her estate and therefore then took on a duty of reasonable

diligence in connection with the estate of Edell Wade. “Texas law charges all

persons interested in an estate with knowledge of the contents of the probate

records.” 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). Prior to August of 2010, Plaintiff had no duty to investigate; as of

August 2010, he did. Indeed, upon Edell’s death, Bud was prompted to inquire

into the property interests and debts owed to her estate.103 He fulfilled his duty of

reasonable investigation and diligence by obtaining all copies of documents that he

could regarding the sale, by examining other pertinent records (e.g., financial




101
      CR:    [James “Bud” Wade Affidavit] 478 par.6, par. 7, 479 par. 13.
102
      CR:    Id.
103
      CR:    [James “Bud” Wade Affidavit] 479 par. 13.


                                            36
statements, bank statements and Pat Cavness’ file), and by bringing suit within the

applicable statute of limitations.104

Defendants’ misconduct was not discoverable from the public records
      Even if Bud had reviewed the public records pertinent to the sale of the

Ranch in 2004 – despite the fact that he had no duty to do so and it was not

permissible for him to be imputed with constructive notice of the information

therein – examination of such records would not have given him notice of his

claims.   “Constructive notice is limited to facts reflected on the face of the

records.” Matter of Estate of Matejek, 928 S.W.2d 742, 744 (Tex.App.—Corpus

Christi 1996, writ ref’d) (citations omitted). For example, “if the claimed fraud

occurred in the inducement, recordation of the document does not, of itself, give

notice of the fraud.” Id. Defendants failed to offer any evidence of how a title

examination would have placed Bud on constructive notice of the specific terms of

the sale of the Ranch, or of the fraud or breach of fiduciary duties committed by

each Defendant in connection therewith.

      The Deed of Trust and Warranty Deed were the only documents filed of

record in the Official Public Records of Burnet County, Texas on March 3,

2004. 105 Defendants attempted to offer the Warranty Deed and the Deed of Trust

as evidence that Plaintiff was on notice of his claims contesting the terms of the

104
      Id.
105
      CR:    [Deed of Trust] 321-335; [Warranty Deed with Vendor’s Lien] 463-472.


                                           37
real estate transaction as of that date, and to argue that the limitations period began

to run at that time. However, these arguments should have failed because nowhere

in those documents was the actual “purchase price” of the property listed, nor

specifics on what was being purchased, nor what the financing terms were. The

financial terms were not disclosed in any documents of public record. In fact, the

only document reflecting the terms of the sale was the Promissory Note, which was

not recorded.

      The Trial Court was wrong to impute notice of financial terms that were not

within Bud’s actual knowledge and that also could not have been gleaned from the

content of any public records (which he had no duty to search). No matter how

closely Bud examined the official records he had access to, it would have been

impossible for him to glean the basis for his claims.

Plaintiff Bud Wade did not have notice of his claims until 2010
      A cause of action for fraud accrues upon its discovery, or from the time the

fraud might have been discovered through the exercise of reasonable diligence.

See Matter of Estate of Matejek, 928 S.W.2d at 744. Knowledge of facts which

would have excited inquiry in the mind of a reasonably prudent person, which if

pursued by him with reasonable diligence would lead to discovery of fraud, is

equivalent to knowledge of the fraud as a matter of law. Id. The defrauded party




                                          38
must be cognizant or aware of facts which would have caused the ordinarily

intelligent and prudent person to investigate. Id.

      It was not until 2010 that Bud was aware of facts that would cause a

reasonably prudent person to discover Defendants’ fraud and misconduct.106 Bud

was not aware of the 2004 sale until after it occurred.107 The Promissory Note was

the only document that states the disparate terms of the sale, and it was not

recorded. When Defendants first moved back to Texas in 2005, Bud had no reason

to think they were taking advantage of his mother. 108

      Unlike in Chapal, a case the Defendants relied upon in their summary

judgment briefing,109 Plaintiff was not “cognizant of all of the alleged acts of

undue influence” at the time of the real estate transaction. See Chapal v. Vela, 461

S.W.2d 466, 470 (Tex.Civ.App.—Corpus Christi 1970). There, the appellate court

said that the facts at the time of the transaction were “equally convincing” when

they were first “personally known,” as they were later after limitations had expired.

Id. at 469. In Chapal, a father conveyed land to two sons, and the court charged

constructive notice of the publicly recorded deed to a third brother who was not a

party to the sale, but who had learned of the sale at or near the time it occurred.

However, in Chapal there was a duty that does not exist here: there the brother
106
      CR: [James “Bud” Wade Affidavit] 479 par. 13.
107
      CR: [James “Bud” Wade Affidavit] 478 par. 6, 7.
108
      CR: 5-22 [Defendants Amended Motion for Partial Summary Judgment concerning
      the 2004 Sale].



                                         39
had a duty of inquiry because the same year that the deed was recorded, his father

passed away and he became a devisee and thus had an interest in the ownership of

his father’s land. Additionally, the Chapal evidence showed that the brother had

been aware of all of the alleged acts of undue influence around the same time they

occurred. That is not the case here.

      Another case relied upon by Defendants, which they introduced at the

summary judgment hearing, Veltmann v. Damon, is distinguishable because it

involves both a duty and an awareness of facts that Bud did not have in 2004.110

Veltmann v. Damon, 696 S.W.2d 241 (Tex.App.—San Antonio 1985) writ granted,

affirmed in part, reversed in part). The Veltmann appellate court upheld the trial

court’s finding that that the plaintiff’s action to set aside the deed was barred by

limitations and held that, “as a matter of law, any cause of action to set aside the

deed accrued on the date of its recording.” Id. at 244. However, again in that case

the plaintiff had a duty that Bud did not have in 2004. The plaintiff in Veltmann

was a son who had a conditional interest in the land subject to the deed, as it had

had been specifically devised to him upon the prior death of his father and he was

aware of that fact, and thus had duty of reasonable diligence. Id. Plaintiff Bud

Wade had no such duty until the death of Edell Wade in 2010 when she devised a

one-seventh interest in her estate to her son Bud Wade.


110
      RR:    Vol. 2 of 4 at 30 [Summary Judgment Hearing Transcript].


                                           40
      Yet another case urged by the Defendants, 111 Rentfro v. Cavazos IV, is

distinguishable because both a duty of diligence based on an interest in the land

existed and also in existence was the awareness of certain facts that were the basis

for setting aside the deed long before the filing of suit. Rentfro v. Cavazos IV,

2012 WL 566364 (Tex.App.―San Antonio, September 21, 2012). The plaintiff’s

affidavits themselves established her awareness of the alleged facts before or soon

after the deeds were signed. Rentfro, 2012 WL 566364 at 9-11.

      At the time of the real estate transaction in 2004, Bud did not have access to

information that would have been “equally compelling” at the time as he did at the

time this suit was filed, and he did not have “means . . . at hand to readily

discover” the wrongdoing. Chapal at 470. It was not any of Bud’s business, much

less his duty, to pry into his mother’s real estate transaction in 2004, the purchase

price and terms of which he was not even aware, and which could not have been

discernible from the county records even if he had looked. Moreover, Bud had no

reason to doubt the forthrightness of his brother and sister-in-law’s dealing with his

mother. In this case, the information regarding their misconduct and self-dealing

accumulated over the years and it was not until the news of the Modification




111
      CR: 5-22 [Defendants Amended Motion for Partial Summary Judgment concerning
      the 2004 Sale].


                                         41
Agreement after Edell Wade’s death that Plaintiff had an inkling of wrongdoing in

the form of fraud or breach of fiduciary duty. 112

Due Diligence is a question of fact for the jury
      The test of reasonable due diligence is a question of fact for the jury, not for

the judge. See In re Estate of Fawcett, 55 S.W.3d 214, 221 (Tex.Civ.App.—

Eastland 2001). In an action to set aside a deed based on a claim of fraud, it

accrues upon discovery of the fraud, and the question of when the fraud was

discovered or should have been discovered is a fact question that precludes

summary judgment.           Matter of Estate of Matejek, 928 S.W.2d 742

(Tex.App.―Corpus Christi, 1996). Defendants did not “prov[e], as a matter of

law, that there is no fact issue concerning when [Plaintiff] discovered or should

have discovered the harm.” Id. at 745.

      Bud never claimed that he should be excused from exercising due diligence,

and asserted that he did in fact exercise due diligence as soon as his duty to do so

was triggered in 2010 in connection with the administration of the estate and its

contents.113 See, e.g., Mooney v. Harlin, 622 S.W.2d 83 (Tex. 1981) (four-year

statute of limitations on a fraud claim began to run when the will was admitted to

probate, whereupon the parties were charged with notice of probate records). Bud

was not aware that Defendants had taken advantage of Edell Wade and benefited

112
      CR:    [James “Bud” Wade Affidavit] 479 par. 13.
113
      CR:    [James “Bud” Wade Affidavit] 479 par. 13.


                                           42
so egregiously at her expense until 2010. Appropriately, Bud Wade then timely

filed suit within four years of the administration of the estate and the discovery of

information that put him on notice of Defendants’ fraudulent acts and other

misconduct.

The Trial Court Made Improper Fact-Findings
      The transcript of the summary judgment hearing clearly documents that

Judge Savage made fact findings. 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?” 114

      The Court’s query presumes (a) that Bud had a duty to investigate the sale,

(b) that Bud was on notice of wrong-doing by his brother and sister-in-law, and (c)

that he failed live up to an alleged duty prior to his mother’s passing. These are all

fact questions for a jury, as the existence of a duty of reasonable due diligence and

whether that duty was fulfilled is a question of fact for the jury, not for the judge.

See In re Estate of Fawcett, 55 S.W.3d at 221.

      At the conclusion of the hearing Judge Savage further stated:

114
      RR:     Vol. 2 of 4 at 66 [Summary Judgment Hearing Transcript].


                                            43
             “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
             effect, in my mind, a part of the consideration of the sale
             of the ranch, was that promise from her son.” 115

      Again, this statement is replete with language that implicates impression,

inference, and fact-finding that properly should be the provenance of the jury.

      The transcript clearly shows that the Court made improper fact assumptions

and failed to indulge every reasonable inference in favor of the Plaintiff, the non-

movant, and, thus, erred in granting the Order at issue.

Issue 2:     The Trial Court erred when it approved of the jury’s findings in
             response to Jury Question No. 1 and Jury Question No. 2 finding
             that Johnny and Amanda Wade complied with their fiduciary
             duties to Edell Wade in connection with the Modification
             Agreement.
      The Trial Court directed the jury that “a relationship of trust and confidence

existed because Edell Wade justifiably placed trust and confidence” in both Johnny

Wade and Amanda Wade. 116 The jury was then instructed that, in order for the



115
      RR:    Vol. 2 of 4 at 75 [Summary Judgment Hearing Transcript].
116
      CR:    [Charge to the Court] at 1541, 1543.


                                           44
acceptance of the Modification to be shown to have been in compliance with

fiduciary obligations, the Defendants had to prove 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.
117
      [emphasis added.]

         When an appellant who does not have the burden of proof at trial attacks the

legal sufficiency of an adverse finding, the appellant must demonstrate that there is

no evidence to support such finding. Porter v. Denas¸ 2006 WL 1686515, *4

(Tex.App.—San Antonio, 2006). When reviewing a no evidence claim, the scope

of review for an appellate court is only the evidence and inferences that tend to

support the findings, while disregarding all evidence or inferences to the contrary.

Minn. Mining & Mfg. Co. v. Nishika, Ltd., 953 S.W.2d 733, 738 (Tex. 1997).

         When the appellant without the burden of proof at trial attacks the factual

sufficiency of an adverse finding, the appellant must demonstrate that there is


117
         CR:   [Charge to the Court] at 1541, 1543.


                                               45
insufficient evidence to support the finding. Plas-Tex, Inc. v .U.S. Steel Corp., 772

S.W.2d 442, 445 (Tex. 1989.) In reviewing a factual insufficiency challenge, an

appellate court must examine all evidence in support of and contrary to the court’s

finding. Id.

         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). Under Texas fiduciary law, the 2009

Modification was presumptively fraudulent and unfair because Amanda and

Johnny were fiduciaries to Edell (as ruled as a matter of law by the Trial Court and

instructed as such)118 and they benefitted from it, and thus they bore the burden of

demonstrating it to be otherwise. Texas Bank and Trust Co. v. Moore, 595 S.W.2d

502 (Tex. 1980) (the nephew of an elderly woman caused her to transfer certain

property to him before her death; the court concluded the nephew was a fiduciary

and as a result, a presumption arose that any gift from the aunt, the principal, to

him as a fiduciary was unfair and invalid). This shifts the burden to the profiting

fiduciary to demonstrate the fairness of the transaction and “the fiduciary must

show proof of good faith and that the transaction was fair, honest and equitable.”

Collins v. Smith, 53 S.W.3d 832, 840 (Tex.App.—Houston [1st Dist.] 2001, no

pet.).


118
         CR:   [Charge to the Court] at 1541, 1543.


                                               46
      In addition to a fiduciary relationship based on a family relationship of trust

and confidence, Amanda Wade was also a fiduciary to Edell by merit of her

capacity as Edell’s attorney-in-fact under the power of attorney. 119 Texas appellate

courts often review whether attorney-in-fact fiduciaries have met their burden

where they benefit from their principal and have time and again reiterated the high

standards of conduct as a fiduciary and the burden to show fairness to a

“scrupulous” degree. For example, the El Paso Court of Appeals in Vogt v.

Warnock held that where an individual possessing power of attorney receives a gift

or bequest from the principal, the fiduciary relationship “cast[s] upon the profiting

fiduciary the burden of showing the fairness of the transaction,” so that the

fiduciary must “be prepared to prove the transaction was conducted with

scrupulous fairness.” Vogt v. Warnock, 107 S.W.3d 778, 783-784 (Tex.App.—El

Paso 2003, pet. denied); see also In re Guardianship Walzel, 2010 WL 335686

(Tex.App.—Corpus Christi-Edinburg, Jan. 28, 2010) (“Regardless of whether a

fiduciary acts under the power of attorney, the execution of the power of attorney

conclusively establishe[s] the fiduciary relationship,” and gifts from the principal

to the attorney-in-fact, while not prohibited, must be shown by the fiduciary to

have been conducted with “scrupulous fairness”); In re Estate of Miller, 2014 WL

3970766, 446 S.W.3d 445 (Tex.App.—Tyler, Aug. 13, 2014) (son with a power-


119
      CR:    [Power of Attorney] 397-399.


                                            47
of-attorney could not show that he did not engage in self-dealing by making

interest-free loans to himself). The standard of conduct is a “stringent standard

undiluted by exceptions.”      Vogt at 778; Jordan v. Lyles, 455 S.W.3d 785

(Tex.App.—Tyler 2015).

      Per Vogt v. Warnock, Jordan v. Lyles, and other Texas precedent, it is clear

that Amanda, as a fiduciary and attorney-in-fact, did not have the luxury of picking

and choosing when and to what degree she would serve to protect Edell Wade’s

best interests. Vogt at 778; Jordan v. Lyles, 455 S.W.3d 785, 794 (Tex.App.—

Tyler 2015). Amanda Wade owed Edell Wade, her principal, “a high duty of good

faith, fair dealing, honest performance, and strict accountability.”        Vogt v.

Warnock, 107 S.W.3d at 782.        Acceptance of a statutory power of attorney

“imposes on [the attorney-in-fact] legal duties that continue until [the attorney-in-

fact] resign[s] or the power of attorney is terminated or revoked by the principal or

by operation of law.” TEX. ESTATES CODE § 752.051. In Vogt the El Paso

Court of Appeals specifically held that an attorney-in-fact is obligated to uphold

their fiduciary duties from the acceptance of the power of attorney and onward

until its termination, even when they have not yet acted under the auspices of the

power of attorney and the transaction was not in the scope of the power of

attorney. Vogt at 778. The same was recently held, and Vogt reinforced, by the

Tyler Court of Appeals, which held that there was no evidence that the holder of a



                                         48
power of attorney informed the principal of all material facts of the transactions

and a breach of fiduciary duty had been demonstrated. Jordan v. Lyles, 455

S.W.3d 785 (Tex.App.—Tyler 2015).

      “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). Also part

of their duty was to ensure that Edell had proper advice as to her financial choices,

as well as to ensure the material facts, such as to value, were clearly provided and

documented. Id.; see also Porter v. Denas, 2006 WL 1686515, *4 (Tex.App.―San

Antonio, June 21, 2006, pet. denied) (fiduciary duties of nephew and grandniece

who provided assistance in financial affairs in a fiduciary capacity, and who

permitted themselves to remain beneficiaries on their elderly aunt’s IRA, had

duties that included advice to her regarding her IRA).

      Johnny and Amanda, by respectively accepting both their roles as a fiduciary

and the Modification which benefited them by eliminating interest as well as an

alleged gift of debt forgiveness of around $40,000, from Edell, consented to have



                                         49
their conduct measured by an even higher standard of loyalty. Vogt¸ 107 S.W.3d

at 783, citing Texas Bank and Trust Co. v. Moore, 595 S.W.2d 502, 508 (Tex.

1980).

      Defendants bore the burden of proof to show that they each complied with

their fiduciary duties and were required to prove all of the elements set out in Jury

Questions No. 1 and No. 2. However, there is no evidence to support the answers

to Jury Question No. 1, i.e., that when Johnny Wade accepted the Modification

Agreement, he complied with all of his duties to Edell Wade under his fiduciary

relationship of trust and confidence with Edell Wade. Nor is there evidence to

support the answer to Jury Question No. 2, i.e., that when Amanda Wade accepted

the Modification Agreement, she complied with all of her duties to Edell Wade

under her fiduciary relationship of trust and confidence with Edell Wade. The

evidence is insufficient to support the answer “Yes” to Jury Question No. 1 as well

as the “Yes” answer to Jury Question No. 2. In fact, the jury’s answer to these

questions was against the great weight and preponderance of the evidence and is

manifestly unjust.

Defendants Could not Show the Transaction was Fair and Equitable
      Element (a) of both Jury Questions No. 1 and No. 2 required Defendants to

prove that the Modification Agreement transaction was a transaction that was fair

and equitable to Edell Wade. However, the Modification Agreement, by its own



                                         50
terms, was not fair and equitable to Edell Wade as the reduction in principal and

elimination of interest were wholly for the benefit of Defendants and to the

detriment of Edell Wade. No evidence was presented at trial that the Modification

Agreement was fair and equitable to Edell Wade; in fact, the only assertions during

trial that the transaction was fair and equitable to Edell Wade were comments

made by Defendants’ counsel regarding the emotional benefit Edell Wade may

have received from making a purported gift to Johnny and Amanda Wade.

Statements made by counsel during trial are not evidence and should not be

considered as such by the jury.

      Defendants did not meet their burden to prove that the Modification

Agreement was fair and equitable to Edell Wade, and trial exhibits introduced to

the jury demonstrate otherwise. First, the Modification Agreement, admitted into

evidence as Plaintiff’s Exhibit 11, states on its face, in bold type:

      *THE   PARTIES  STATE    HEREBY       THAT THIS
      MODIFICATION IS FOR THE SOLE PURPOSE OF
      ELIMINATING THE OBLIGATION OF OBLIGOR TO PAY
      TO HOLDER INTEREST ON THIS LOAN.* 120

      Thus the only stated purpose of the Modification Agreement was that it was

to eliminate the obligation to pay interest, and the only benefit of that was to

Johnny and Amanda Wade, not to Edell Wade. It is impossible to tell from the

face of the document, but the Modification Agreement also eliminated around

120
      RR:    Vol. 3 of 4 at 6-13 [Modification Agreement].


                                            51
$40,000 from the principal balance due (i.e., around 15% of the principal) without

explanation or identification. 121

      It is undisputed that the Modification Agreement resulted in lower monthly

payments to Edell Wade and later to her Estate, as well as a balance on the Note

that was reduced to even lower than the already less than fair market value it

initially had, due to principal reduction. Defendants’ own trial exhibit documented

the payments made on the Note before and after the Modification and show that

the payments dropped from $1,849.00 to $1,200.00. 122 There was no benefit to

Edell Wade that resulted from the Modification. The Defendants did not meet

their burden to show that it was fair and equitable for these reasons and more.

Defendants Could Not Show Utmost Good Faith and the Exercise of
Scrupulous Honesty
      Element (c) of both Jury Questions No. 1 and No. 2 required Defendants to

prove that Johnny and Amanda Wade each acted in the utmost good faith and

exercised the most scrupulous honesty towards Edell Wade. However, there was

no evidence that Edell Wade had full disclosure of material facts or that she even

knew all of the terms of the Modification Agreement, especially that the principal

had been reduced by about $40,000, and there is no evidence that she had the




121
      RR:    Vol. 3 of 4 at 6-13 [Modification Agreement].
122
      RR:    Vol. 4 of 4 at 3 [Defendants’ Payments Exhibit].


                                             52
benefit of independent advice. In fact the opposite can be demonstrated through

clear and undisputed documentation that was presented to the jury.

      The evidence in fact clearly demonstrated that Johnny and Amanda Wade

controlled the flow of information with Michael Martin regarding the terms of the

Modification Agreement. This evidence was presented in the Martin & Millican

file and the Work Order admitted into evidence as part of Plaintiff’s Exhibit 38,

showed that Johnny and Amanda Wade were the clients of Michael Martin. The

Martin & Millican file on the Modification Agreement identifies the client in the

matter as “Johnny Wade et ux,” i.e. Johnny and his wife Amanda. 123 The Martin &

Millican file contains a work order that logged the date and line items of work

done on the Modification Agreement. 124 The name “Edell Wade” does not appear

anywhere in the work order, but Johnny and Amanda’s names do.125 The file also

contains a copy of a June 15, 2009, invoice for balance due of $299.30 to “Mr. &

Ms. Johnny Wade” for “modification of note”; the invoice does not contain the

name “Edell Wade” in the description of services rendered, as a client, nor as a

recipient of the bill.126 The file also contains a copy of a June 15 2009, letter to

Johnny and Amanda Wade stating “Enclosed are a copy of recorded Modification

Agreement, the original of which has been sent to Edell Wade and your file

123
      RR:   Vol. 3 of 4 at 14, 15 [Martin & Millican File].
124
      RR:   Vol. 3 of 4 at 15 [Martin & Millican File].
125
      Id.
126
      RR:   Vol. 3 of 4 at 19 [Martin & Millican File].


                                             53
regarding the matter which you left with us.                  Also enclosed is a bill for

services.”127

      The only evidence of communication between Michael Martin or anyone at

the firm and Edell Wade regarding the Modification Agreement is dated after the

execution of the Modification Agreement, and is a two-line correspondence to

Edell dated June 15, 2009, that states “Enclosed is original recorded Modification

Agreement for your files. A copy has been sent to Johnny and Amanda Wade.”128

In contrast, the file does contain an account statement to Edell Wade for legal work

on her will in 2007, with a different file number. 129

      The Martin & Millican file also showed that, subsequent to a telephone call

with Amanda Wade on May 26, 2009, Mr. Martin sent the Modification

Agreement to Johnny Wade with a cover letter dated May 26, 2009, admitted into

evidence as part of Plaintiff’s Exhibit 38, containing the statement that he had,

“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 26th.”130

      The jury was also shown a note sent from Amanda Wade to Edell Wade’s

accountant Lori Graham in 2010, in connection with the preparation of Edell’s

2009 tax return, advising Lori Graham that the interest under the Promissory Note

127
      RR:       Vol. 3 of 4 at 21 [Martin & Millican File].
128
      RR:       Vol. 3 of 4 at 20 [Martin & Millican File].
129
      RR:       Vol. 3 of 4 at 47 [Martin & Millican File].
130
      RR:       Vol. 3 of 4 at 24 [Martin & Millican File].


                                                 54
had been eliminated in 2009. This note was admitted into evidence as Plaintiff’s

Exhibit 7.131   In that handwritten note, which was stuck to a page of the

amortization schedule on the Note, Amanda Wade stated:

            “Lori – We paid Mrs. Wade house payments w/ interest through
      May. She then relieved us of our interest and changed our note to
      principal only. So she only has interest income from us for 5
      months.”132

      Also written on the amortization schedule was the notation “principal only”

and an “X” over a portion of the payments for 2009. 133 There was no notation of a

change to the principal balance on the amortization schedule, nor mention by

Amanda Wade of the second effect of the Modification Agreement, which was the

principal reduction.134 The note to Lori Graham is interesting, in part, because it

indicates that Edell’s accountant was not informed of the elimination of interest at

the time of the Modification Agreement, but only afterwards for tax preparation;

thus Edell’s accountant was not consulted with regarding any potential benefit or

lack thereof to Edell Wade from the Modification.

      There is simply no evidence that Edell Wade wanted to modify the terms of

the Note, much less to reduce the principal or engage in debt forgiveness. In fact,

there is no evidence that Edell Wade was aware that principal reduction was part of


131
      RR:   Vol. 3 of 4 at 3 [Amanda Wade Note to Lori Graham].
132
      RR:   Vol. 3 of 4 at 3 [Amanda Wade Note to Lori Graham].
133
      Id.
134
      Id.


                                          55
the Modification. The Modification Agreement, which she did sign, states that it is

for elimination of interest only.

      In fact, the documentation indicates that even the lawyer on the deal, as well

as Edell’s accountant, were aware only of the elimination of interest and not of the

principal reduction. The Martin & Millican file and the Modification Agreement

together indicate that Amanda and Johnny did not even tell the lawyer who

prepared it, Michael Martin, that principal reduction was part of the deal. The

initial intake notes on Martin’s work order log state that the intent was to either

eliminate interest or reduce principal, not both. 135 The Modification states in bold

and all-caps that it is for the elimination of interest only. Mr. Martin also wrote to

his client Johnny Wade that the principal balance had been “inserted” based on

what he was told by Amanda, but nothing in his file indicates that he understood

that to be a reduction.136

      The documentation submitted to the jury also demonstrated that Edell

Wade’s accountant, Lori Graham, also was not informed of the principal reduction

component of the Modification Agreement.137 Amanda’s note to Lori Graham

fails to cite to the principal reduction or to direct her to adjust the Note




135
      RR:    Vol. 3 of 4 at 15 [Martin & Millican File].
136
      RR:    Vol. 3 of 4 at 24 [Martin & Millican File].
137
      RR:    Vol. 3 of 4 at 3 [Amanda Wade Note to Lori Graham].


                                           56
amortization schedule to reflect such reduction, and would indicate that Lori

Graham was not told about the principal reduction.138

      There is no documentary evidence of any calculation of the reduction in

principal, or how the $227,528.00 principal balance “inserted” into the

Modification Agreement was arrived at. Lori Graham’s amortization indicates the

principal was $40,149.84 higher than that.139 Nor is there is no indication that

Edell Wade wanted to make a gift to Johnny and Amanda in the form of debt

forgiveness, or that she was even aware of the principal reduction.

Defendants could not show that they placed the interest of Edell Wade before
their own; that they did not take advantage of their position to gain benefit; or
that their self-interest did not conflict with their obligations as fiduciaries.
      Element (d) of Jury Questions No. 1 and No. 2 required that Defendants

prove that each of Johnny and Amanda Wade placed the interest of Edell Wade

before his or her own, did not use the advantage of their position to gain benefit for

themselves at the expense of Edell Wade, and did not place himself or herself in

any position where their self-interest might conflict with their obligations as a

fiduciary. As set forth above, there was no evidence that Johnny Wade and

Amanda Wade each placed their own interests before those of Edell Wade, did not

use their position to gain benefit for themselves at the expense of Edell Wade, and

acted in the utmost good faith or exercised the most scrupulous honesty toward

138
      RR:    Vol. 3 of 4 at 3 [Amanda Wade Note to Lori Graham].
139
      RR:    Vol. 3 of 4 at 3 [Amanda Wade Note to Lori Graham].


                                           57
Edell Wade – in fact, the opposite can be demonstrated through clear and

undisputed documentation that was presented to the jury.

      The overwhelming evidence in this case is that Johnny Wade and Amanda

Wade each not only placed themselves in a position where their self-interest might

conflict with their fiduciary obligations, they placed themselves in a position where

their self-interest did conflict with their fiduciary obligations. The only interest

Johnny Wade and Amanda Wade could possibly have served by entering into a

transaction with Edell Wade which was to their benefit (and to Edell Wade’s

detriment) was their own self-interest.

      As previously noted, the jury saw a chart of the payments made by

Defendants to Edell Wade, along with copies of checks and bank statements

reflecting those payments, admitted into evidence as Defendants Exhibit 1.140 The

chart created by the Defendants themselves clearly evidenced the reduced

payments made by Defendants beginning on June 1, 2009, which resulted in less

money received by Edell Wade (to her detriment) and more money retained by

Johnny and Amanda Wade (to their benefit). 141

      The Tyler Court of Appeals has recently noted, in a very similar case, that

the term “benefit” is defined as “an advantage,” which is itself defined as a

“relatively favorable position.” Jordan v. Lyles, 455 S.W.3d 785 (Tex.App.—

140
      RR:    Vol. 4 of 4 at 3 [Defendants’ Payments Exhibit].
141
      RR:    Vol. 4 of 4 at 3 [Defendants’ Payments Exhibit].


                                             58
Tyler 2015). The court reiterated the requirement that “the burden is on the

fiduciary to show that she acted fairly and informed the principal of all material

facts relating to the alleged transaction.” Id. at 792. “Even in the case of a gift

between parties with a fiduciary relationship, equity indulges the presumption of

unfairness and invalidity, and requires proof at the hand of the party claiming

validity of the transaction that it is fair and reasonable.” Id., citing Estate of

Townes v. Townes, 867 S.W.2d 414, 417 (Tex.App.—Houston [14th Dist.] 1993,

writ denied). The Jordan court found the daughter-in-law who held a power of

attorney had failed to meet her burden to prove “that she or anyone else

specifically discussed the transactions at issue with the older man and informed

him of all material facts relating to them.” Id. at 794. The attorney-in-fact’s

argument that she was not acting under her power of attorney when she executed

the transactions, and thus could not have breached her fiduciary duty also failed.

The Jordan court, invoking the Vogt opinion, held that she could not dilute her

fiduciary duty to the principal with such an exception, and quoted Vogt where the

court of appeals held that a fiduciary’s duty should be viewed by a “stringent

standard undiluted by exceptions.” Jordan v. Lyles, 455 S.W.3d at 794, quoting

Vogt at 778.

      The Defendants failed to overcome the presumption of unfairness and undue

influence that attaches to transactions entered into during the existence of a



                                        59
fiduciary relationship.   There is no evidence that they met their burden and

complied with their fiduciary obligations, which were even more stringent in light

of the benefits they received under the Modification. There is no evidence that

Edell benefitted. The Modification Agreement, the Martin & Millican file, the

Defendant’s chart of payments, and the Lori Graham amortization and note speak

for themselves on this matter.

                                       New Trial

      Plaintiff seeks a new trial in which he can put on the full story of the wrongs

committed by Johnny and Amanda Wade over the years, beginning with the 2004

sale of the Ranch and continuing through Edell’s last years, her death, and the

administration of the Estate (in which Amanda served as independent executor).

The jury was only allowed to hear only a slanted, limited version of events that

began with the Modification. The full story is one of ongoing manipulation and

positioning by Johnny and Amanda in order to leverage power and control over

Edell Wade, take over her decisions for her, deprive her of professional advice or

independent counsel, strictly curtail her access to family visits and company, and

ultimately denude Edell and her Estate of not only the overwhelmingly most

significant asset – the Ranch – at far below market value, but then going on to

further diminish Edell’s assets by eliminating interest as well dropping the

principal on the Note through the Modification. Plaintiff respectfully requests this



                                         60
Court to permit him to put on the trial to a jury and tell the full story, as he would

have had the Trial Court not wrongfully barred him from doing so.

                                     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




                                         61
                   CERTIFICATE OF COMPLIANCE
       Pursuant to Texas Rules of Appellate Procedure 9.4, the undersigned
certifies Appellant’s Brief complies with 9.4.

     1.    Exclusive of the exempted portions in Texas Rules of Appellate
           Procedure 9.4(i)(1), Appellant’s Brief contains 12,801 words.
     2.    Appellant’s 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
           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 Brief.

                                                 /s/ Emily J. Seikel
                                           Sheldon E. Richie/Emily J. Seikel




                                      62
                        CERTIFICATE OF SERVICE
      I HEREBY CERTIFY that on 18th day of May, 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




                                    63
               APPENDIX
INDEX OF RECORD EXHIBITS ACCOMPANYING
           APPELLANT’S BRIEF




                 69
                                     JAMES E. WADE
                                        Appellant.


                          TABLE OF CONTENTS
                   OF RECORD EXHIBITS ACCOMPANYING
                          APPELLANT’S BRIEF


      NO.          TITLE OF DOCUMENT
      Tab A.       Order Granting Defendants’ Amended Motion for Partial Summary
                   Judgment Concerning the 2004 Sale (Pertaining to All Claims), as
                   modified and entered on April 11, 2014.142
      Tab B.       Order Denying Plaintiff’s Emergency Motion to Reconsider the
                   Court’s Order Granting 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, entered on April 29,
                   2014. 143
      Tab C.       Final Judgment in favor of Appellees based on the Jury Verdict, as
                   modified and entered on November 17, 2014. 144
      Tab D.       Order Denying Plaintiff’s Motion for Judgment Notwithstanding
                   the Verdict, as modified and entered on November 17, 2014. 145
      Tab E.       Order Denying Plaintiff’s Motion for New Trial, entered on
                   January 26, 2015. 146
      Tab F.       Charge of the Court 147
      Tab G.       Verdict148
      Tab H.       Modification Agreement 149
      Tab I.       TEX. ESTATES CODE § 752.051

142
        CR:    611.
143
        CR:    762.
144
        CR:    1599-1601.
145
        CR:    1602.
146
        CR:    1633.
147
        CR:    1539.
148
        CR:    1541
149
        RR:    Vol. 3 of 4 at 6-13
                                          CASE NO. P9127

I   THE ESTATE OF                                §                           I THE COU TY COURT
                                                 §
EDELL WADE,                                      §                                              AT LAW
                                                 §
DECEASED                                         §                      BUR ET COU TY, TEXAS

      ORDER GRA NTING DEFENDANTS' AMEN DED MOTIO N FOR PARTIAL
    SUMMARY J U DGMENT CONCERNI NG TH E 2004 SALE (Pertaining to All Claims)

        This matter having come before the Court on Defendants· Amended Motion for Partial
                                                                              C:l'G£~ ~   o?o   j~+e.<c.1t- AJ01"C..
Summary Judgment Concerning the 2004 Sale (Pertaining to All Claim!)( served March 20,

2014, the Court having considered the submissions of the parties and applicable law, and having

heard argument of counsel, FINDS that Defendants' Mot io n is well taken and should be granted.

        IT IS THEREFORE ORDERED that the Amended Motion for Partial Summary
                                                                   <!¥-'-#    ~ O-!. 1 ...,+cr~.H A.lot~
Judgment Concerning the 2004 Sale (Pertaining to All Claims], be, and hereby is, GRANTED,

that Judgment be, and hereby is, rendered in favor of Defendants Johnny Wade and Amanda

Wade, and against Plaintiff James Wade on all of his claims against them. and that Plaintiff

James Wade take nothing from Defendants Johnny and Amanda Wade.

        DATED this    / /   ~   day of~
                                      A-....p'"--'-c-~\~l
                                                        ____, 2014.


                                                             ON~LSAYAGE
                                                            PRESIDING J UDGE




                                          EXHIBIT A
                                       CASE NO. P9127

IN THE ESTATE OF                             §                         IN Tl IE COUNTY COURT
                                             §
EDELL WADE,                                  §                                      AT LAW
                                             §
DECEASED                                     §                       BURNET COUNTY, TEXAS

                                            ORDER

       On this 25th day of April, 2014, came on for consideration Plaintiff's Emergency Motion

to Reconsider the Court's Order Granting Defendants' Amended Motion for Partial Summary

Judgment Concerning the 2004 Sale Or, Alternatively, to Sever Plaintirrs Claims Concerning

the 2004 Sale or For Permission to Appeal Interlocutory Order. The Court, having considered

the motion, the responses of Defendants, and the argument of counsel, linds that the motion is

without merit and should be denied.

       IT IS, THEREFORE, ORDERED that Plaintiffs Emergency Motion to Reconsider the

Court's Order Granting Defendants' Amended Motion for Partial Summary Judgment

Concerning the 2004 Sale Or, Alternatively, to Sever Plaintiffs Claims Concerning the 2004

Sale or For Permission to Appeal Interlocutory Order be, and the same is hereby, DENIED.


       DA TED this   :J. q ~   day of ~A'--'""p"-'-
                                                i-~~·. . .I'--- - - -' 2014.



                                              HO N. W.R. SAVAGE, .JUDGE PRESIDING




                                       EXHIBIT B
APPROVED AS TO FORM:

RICltlE & G UERINGER,P.C.
100 Congress Avenue, Suite 1750
Austin, Texas 78701
(512) 236-9220 Telephone
(512) 236-9230 Tclccopier


J3y:   ~'\Llo'
       Sheldon E. Richie
                         -lof'w" ·.._ ~
       srichiel@rg-austin.com

ATTORNEY FOR JAMES E. WADE

LAW OFFICE OF DON     E. WALDEN
7200 North Mopac. Suite 300
Austin, Texas 7873 I
(512) 349-9595 Telephone
(512) 795-8079 Telecopier


By: ~b  Don E. Walden
        donwaldcn@.peoplepc.com

ATTORNEY FOR NANCY BURNS


GRAVES OOUGI IERTY H EAR0:-1 & MOODY, P.C.
401 Congress Avenue, Suite 2200
Austin, Texas 78701
(512) 480-5600 Telephone
(512) 480-5851 Tclccopier


 By    ~fZa',,_~ t4J_
        ~Alie~
        State Bar No. 0 I 043 l 00
        kallcn(a),gdhm.com
        Michelle Alcala
        State Bar No. 24040403
        malcala@gdhm.com

 ATTOR. EYS FOR JOHNNY WADE AND AMANDA WADE SOLELY IN Tl IEIR
 INDlVlDUAL CAPACITIES


                                             2
HILL OuCLOUX, CARNES & DE LA GARZA
400 W. 15"' Street, Suite 808
Austin. Texas 78701
(512) 474· 7054 Telephone
(512) 4 74-5605 Telecopier


By,~4
       State Bar o. 06157500
       cduclouxr@hdcdlaw.com

ATTORNEY FOR AMANDA WADE IN ITER CAPACITY /\S EXECUTOR




                                     3
                                      CASE NO. P9127

IN THE ESTATE OF                            §                    IN THE COUNTY COURT
                                            §
EDELL WADE;                                 ~-                ---AT-LAW -
                                            §
DECEASED                                    §                    BURNET COUNTY, TEXAS

                                     FINAL JUDGMENT

        On the 29th day of September, 2014, the above entitled and numbered cause was called

for jury trial on the remaining claims of James "Bud" Wade, Nancy Bums and Sue Meuth, as

Plaintiffs (their claims related to the 2004 sale from Mrs. Wade to Johnny and Amanda Wade

having been disposed of by summary judgment dated April 14, 2014) against Johnny Wade and

Amanda Wade individually, and Amanda Wade in her capacity as the Independent Executor of

this estate, as well as the claims of Johnny Wade and Amanda Wade individually, and Amanda

Wade in her capacity as the Independent Executor.

        All parties appeared through their respective counsel and announced "ready." A jury of

six citizens of Burnet County was selected and sworn, and proceeded to hear the evidence.

        At the close of the evidence, the jury was charged by the Court and upon the close of

final arguments, took the case under deliberation. On October 6, 2014, the jury delivered its

verdict, and found in favor of Johnny Wade and Amanda Wade, in her individual capacity, and

in favor of Amanda Wade in her capacity as Independent Executor. The jury further determined

the reasonable and necessary attorneys' fees incurred by the Independent Executor through trial
                                                                  Jc:\.).   ~~d\.f;J),,
and in the event of an appeal. The Court has accepted the jury's verdictl\ind it is filed in the

papers of this case.




                                                             EXHIBIT C
Final Judgment, Page 1
        IT IS, THEREFORE, ORDERED, ADJUDGED AND FINALLY DECREED that the

Plaintiffs JAMES E. WADE, NANCY BURNS, and SUE MEUTH take nothing by any of their

claims herein.

        It is FURTHER ORDERED, ADJUDGED AND FINALLY DECREED that AMANDA

WADE shall have and recover from the Estate of Edell Wade the sum of Eighty-Three Thousand

and no/100 Dollars US ($83 ,000.00) for attorneys' fees and expenses through the trial of this

case, /;IP!> iA/-/e/'t?lf      flere~-W   4   5"% ~ ~
        It is FURTHER ORDERED, ADJUDGED AND FINALLY DECREED that AMANDA

WADE is hereby conditionally awarded, and shall have and recover from the Estate of Edell

Wade in the event an appeal is taken, further attorneys' fees as follows:

        a.       $20,000.00 in the event appeal is taken to the Court of Appeals;

        b.       $7,500.00 in the event a Petition for Review is filed in the Supreme Court of

Texas; and

        c.       $10,000.00 in the event of any further proceedings in the Supreme Court.

        All costs of court herein incurred are charged against the Plaintiffs.

        This is a final judgment, disposing of all claims and all parties. The Clerk shall issue

such writs in support of execution as AMANDA WADE may lawfully request.
                       .tt__

SIGNED THIS      _[J_ day of November, 2014.



                                               W.R. SAVAGE, Judge Presiding



APPROVED AS TO FORM:                                         Fi •. CD iHIS   \1~AYOF~A.O. 20~
                                                                  q0w1,1 .
                                                                     r.o       .~
                                                                                    /2M/JJ  , JEXAS
                                                                 ~~~i;;;~~~~~~L-DEPUTY
Final Judgment, Page 2
diJiiflL_'r.c.
-By:     Sheldo~n~E~.~R~ic-h-ie_ _ _ _ _ _ __

          State Bar No.16877000
  100 Congress Avenue, Suite 1750
  Austin, Texas 78701
  512 236-9220/ 512 236-9230 fax
  srichie@rg-austin.com
  ATTORNEY FOR JAMES "BUD" WADE


    9h~
  Don E. Walden
  LAW OFFICE OF DON    E. WALDEN
  83 N. Capital of Texas Hwy, Bldg 1, Suite 305
  Austin, Texas 78731
  (512) 349-9595
  (512)795-8079 Fax
  donwalden@peoplepc.com
  ATTORNEY FOR NANCY BURNS AND SUE MEUTH


  GRAYES DOUGHERTY HEARON & MOODY,     P .C.
  401 Congress Avenue, Suite 2200
  Austin, Texas 78701
  (512) 480-5600 Telephone
  (512) 480 585 Teleco ier


      Kathry
       State ar
      kallen Clhm.com
  ATTORNEY FOR DEFENDANTS

  Ja:;~AWADE
  CLAUDE E. DUCLOUX
  State Bar No. 06157500
  400 W. 15th Street, Suite 808
  Austin, Texas 78701
  Telephone: (512) 474-7054
  Telecopier: (512) 474-5605
  Email: cducloux@hdcdlaw.com
  ATTORNEY FOR AMANDA WADE,
  in her capacity as INDEPENDENT EXECUTOR


  Final Judgment, Page 3
                                                CASE NO. P9127

IN THE ESTATE OF                                       §                IN THE COUNTY COURT
                                                       §
EDELL WADE,                                            §                AT LAW
                                                       §
DECEASED                                               §                 BURNETCOUNTY,TEXAS

                         ORDER DENYING PLAINTIFFS' MOTION
                    FOR JUDGMENT NOTWITHSTANDING THE VERDICT

         On this /    f   !!day of November, 2014, came on to be considered the Plaintiffs Motion

for Judgment Notwithstanding the Verdict in the above-styled and numbered cause. The Court

has considered the Motion and finds it should be denied.

         IT IS THEREFORE ORDERED that the Motion for Judgment Notwithstanding the

Verdict of the Plaintiffs, JAMES E. WADE, !iWtNC!t' BtIJiffiiR;1trul;;~M™I is hereby

Denied.e><'.e_c-lf't ?l ::i.    +o A~o<vtcy
                          1'-     Nt;>Ve/'IJ!Jlflt.1
SIGNED THIS ~day ofQotob®F, 2014.




                                                       W.R. SAVAGE, Judge Presiding




Order Denying Plaintiffs Motion JNOV, Page 1                               EXHIBIT D
                                    CAUSE NO. P9127

ESTATE OF                                     §        IN THE COUNTY COURT AT LAW
                                              §
EDELL WADE,                                   §                                          OF
                                              §
DECEASED                                      §                BURNET COUNTY, TEXAS
                         '7:> ~/'/'IL H<::,
                   OROER~RlloNTIN6        MOTION FOR NEW TRJAL

       ON THIS DAY came 10 be considered Plaintiff James Wade's Motion for New Trial (the

"Motion"). Having considered lhe Motion and the argument of counsel the Court fiAAB eeiQ......

~io~mo~
                                                                    'Df tlZ-C-[J
       IT IS THEREFORE ORDERED that the Motion for New Trial is GB' 'M:Flii&.




                                                      Flem   ~.:;J..o~AY o~\\- 20~     AD.


                                                              )~..)~~ f~A...,1Jfi_}
                                                                                       XAS
                                                       "F!Q)IJ-'Y~o....J=~o.ot!i-1(.-1!---DEPUTY




                                                                                         - I -




                                        EXHIBIT E
                                           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.




                                             EXHIBIT F


                                                                                                        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
                                      CAUSE NO. P9127

ESTATE OF                                       §           COUNTY COURT AT LAW
                                                §
EDELL WADE,                                     §           OF
                                                §
DECEASED                                        §           BURNET COUNTY, TEXAS


                                       QUESTION NO. 1

       A relationship of trust and confidence existed because Edell Wade justifiably placed trust
and confidence in Johnny Wade.

Did Johnny Wade's acceptance of the Modification Agreement comply with his fiduciary duty to
Edell Wade?

Because a relationship of trust and confidence existed between them, Johnny Wade owed Edell
Wade a fiduciary duty. To prove he complied with his duty, Johnny Wade must show---

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 of Edell Wade before his own, did not use the
advantage of his position to gain any benefit for himself at the expense of Edell Wade, and did
not place himself in any position where his self-interest might conflict with his obligations as a
fiduciary.

You are further instructed that a fiduciary duty owed by one person to another extends only to
dealings within the scope of the fiduciary relationship between the parties.



Answer "Yes" or "No".



Answer:&

                                                    FILEDTHISVJ~ DAYO~l1
                EXHIBIT G                            ~~~)lk~~~~"'\:---DEPUTY
                                                                                 TY, TEXAS
                     CERTIFICATE AS TO JURY QUESTION NO. 1

       We, the jury, have answered the above and foregoing question as herein indicated, and

herewith return same into Comi as our verdict.

       (To be signed by the presiding juror if unanimous.)


                                                 Presiding Juror

       (To be signed by those rendering if not unanimous.)



                                                     Xlo                  ~
                                      CAUSE NO. P9127

ESTATE OF                                       §           COUNTY COURT AT LAW
                                                §
EDELL WADE,                                     §           OF
                                                §
DECEASED                                        §           BURNET COUNTY, TEXAS


                                       QUESTION NO. 2

       A relationship of trust and confidence existed because Edell Wade justifiably placed trust
and confidence in Amanda Wade.

Did Amanda Wade's acceptance of the Modification Agreement comply with her fiduciary duty
to Edell Wade?

Because a relationship of trust and confidence existed between them, Amanda Wade owed Edell
Wade a fiduciary duty. To prove she complied with her duty, Amanda Wade must show---

a.     the transaction in question was fair and equitable to Edell Wade; and

b.     Amanda Wade made reasonable use 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 before her own, did not use the
advantage of her position to gain any benefit for herself at the expense of Edell Wade, and did
not place herself in any position where her self-interest might conflict with her obligations as a
fiduciary.

You are further instructed that a fiduciary duty owed by one person to another extends only to
dealings within the scope of the fiduciary relationship between the paiiies.



Answer "Yes" or "No".



Answerf6-
                      CERTIFICATE AS TO JURY QUESTION NO. 2

       We, the jury, have answered the above and foregoing question as herein indicated, and

herewith return same into Court as our verdict.

       (To be signed by the presiding juror if unanimous.)

                                                      /
       (To be signed by those rendering if not unanimous.)
                                        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 Question. Otherwise, do not answer the following Question.


                                        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
Wade's failure to comply with his/her fiduciary 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 1,
2009throughtoday;and
                                                                          ~<it:• 'f
                                                                               " I (i0@"/'
         b.    the total amount Johnny and Amanda actually paid from      ·M~O~, through
today.                                                                    f1ct y I 1 (},_DOC(

Answer in dollars and cents, if any.



Answer:        $- - - - - - -
                      CERTIFICATE AS TO JURY QUESTION NO. 3

       We, the jury, have answered the above and foregoing question as herein indicated, and

herewith return same 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.)
                                      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
No. 2. Otherwise, do not answer the following question.

      To answer "Yes" 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 find by clear and convincing evidence that the harm to Edell Wade resulted from
intentional breach of fiduciary duty or self-dealing ?

       "Clear 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 "Yes" or "No".


Answer:
                      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 signed by the presiding juror if unanimous.)


                                                  Presiding Juror

       (To be signed by those rendering if not unanimous.)
                                       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 answer the following question.

You must unanimously agree on the amount of any award of exemplary damages.

                                       QUESTION NO. 5

What sum of money, if any, if paid now in cash, should be assessed against Johnny Wade and
Amanda Wade and awarded to the Estate of Edell Wade as exemplary damages, if any, for the
conduct found 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-

1.     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 in dollars and cents, if any.
                      CERTIFICATE AS TO JURY QUESTION NO. 5

       We, the jury, have answered the above and foregoing question as herein indicated, and

herewith return same into Court as our verdict.

       (To be signed by the presiding juror if unanimous.)


                                                  Presiding Juror
                                           CAUSE NO. P9127

ESTATE OF                                              §       COUNTY COURT AT LAW
                                                       §
EDELL WADE,                                            §       OF
                                                       §
DECEASED                                               §       BURNET COUNTY, TEXAS

                                       JURY QUESTION NO. 6

The Court instructs that, if you found that the Modification Agreement was wrongfully procured
in breach of fiduciary duty or otherwise, then, for purposes of determination of attorneys' fees, if
any, the 2004 Promissory Note is in default and the Plaintiff shall be awarded attorneys' fees. If
you found that the Modification Agreement was wrongfully procured, then answer the following
question. Otherwise, do not answer the following question.

         1.       What is a reasonable fee for the necessary services of James "Bud" Wade and
                  Nancy Wade Burns' attorneys, stated in dollars and cents?

Answer with an amount for each of the following:

   (1)        For representation in the trial court.

Answer: - - - - - -

   (2)        For representation through appeal to the court of appeals.

Answer: - - - - - -

   (3)        For representation at the petition for review stage in the Supreme Comi of Texas.

Answer: - - - - - - -

   (4)        If accepted, for representation at the merits briefing stage and through oral argument
              and the completion of proceedings in the Supreme Court of Texas.

Answer: - - - - - - -
                      CERTIFICATE AS TO JURY QUESTION NO. 6

       We, the jury, have answered the above and foregoing question as herein indicated, and

herewith return same 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.)
                                        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 m 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, AMANDA WADE must show that, during her administration of the estate of Edell
Wade in question

1.  the administration of the estate was fair and equitable to the beneficiaries, considering
AMANDA WAD E's obligations in administering the estate; and

2.     AMANDA WADE made reasonable use of the confidence placed in her as the result of
her appointment; 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 position 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 concerning the estate in question that might affect the rights of the
beneficiaries.

       Answer "Yes" or "No."


       Answer:   --1~'----e:_---'5=-·_ _ _ __
                      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.

       (To be signed by the presiding juror if unanimous.)~
                                                    //


       (To be signed by those rendering if not unanimous.)
                                      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 Faith" means an action that is prompted by honesty of intention and a reasonable
belief that the action was probably correct?

Answer "Yes" or "No."


ANSWER:_~~_C_-s_·'----
                      CERTIFICATE AS TO JURY QUESTION NO. 8

       We, the jury, have answered the above and foregoing question as herein indicated, and

herewith return same into Court as our verdict.

       (To be signed by the presiding juror if unanimous.)         ~



                                                       ~
                                                       /'


                                                  P~illg]Uror
                                                                   ·.~-


       (To be signed by those rendering if not unanimous.)
                                        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 9.
                                      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:

       1.     For representation in the trial court.
                        ,,                          06-
              Answer:~ '3 3 3,.       OC:) rJ

              2.      For representation through appeal to the court of appeals.
                                         __.!1S2--
              Answer: 1j20 ocD ,

              3.      For representation at the petition for review stage in the Supreme Court of
                      Texas.
                                         Q!J--
              Answer:        J·75·oo.
              4.      For representation through oral argument and the completion of
                      proceedings in the Supreme Court of Texas.

                                          JJY---
              Answer:.1/0,0 (l [}
                      CERTIFICATE AS TO JURY QUESTION NO. 9

       We, the jury, have answered the above and foregoing question herein indicated, and

herewith return same into Court as our verdict.

       (To be signed by the presiding juror if unanimous.)




       (To be signed by those rendering if not unanimous.)
                                                                                                                     ..
                                                                    111111nu1111111m   l'IOD

                                                                                       a   PGS
                                                                                                 208905193



0         Date: May 1, 2009
                                                             MODIFICATION AGREEMENT


          Holder of Note and Lien:                   EDELL WADE
          Holder"• Malllng Add.....:
                               10400 BCR 207
                               Lampaaaa, Texas 76550
                               Burnet County
         Obllgor:              JOHNNY WADE and AMANDA WADE, husband and wife
         Obllgor"s Malling Addrese:
                               302Western
                               Lampasas, Texas 76550
                               Lampasas County
         Note
                    Date: February e. 2004
                    Orlglnal prlnclpal amount: $500,000.00
                    Borrower:             JOHNNY WADE and AMANDA WADE, husband and wife
                    Lender:               EDELL WADE
                    Maturity date: February 1, 2036
         Unpaid Prlnclpal and lntereat on Note: $227 ,528.00
         Lien Documents: Deed of Trust dated February 6, 2004 from JOHNNY WADE and AMANDA
         WADE to PATE. CAVNESS, Trustee, recorded as Document 002424, Volume 1223, page 503,
         Official Public Records of Burnet County, Texas


0        Property (Including any Improvements):

                    That certain real property In Burnet County, Texas, more partlcularly described In Exhibit
                    "A" attached hereto and made a part hereof for all purpoaea.
         Extended Maturity Date of Note: March 1, 2025
         Modified Tanna: 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
         regularly on the first date of each succeeding month until paid.
              "'THE PARTIES STATE HEREBY THAT THIS MODIFICATION IS FOR THE SOLE
         PURPOSE OF ELIMINATING THE OBLIGATION OF OBLIGORTO PAY TO HOLDER INTEREST
         ON THIS LOAN.*
                The Note la secured by liens against the Property. Whether Obliger Is primarily liable on
         the Note or not, Obliger nevertheless agrees to pay the Note and comply wHh the obligations
         expressed In the Lien Documents.
                For value received, Obliger renews the Note and promises 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 Maturity Data of Note. Obllgor also extends the liens
         described In the Lien Documents.
               The Note and the Lien Documents continue as written, except as provided In this
         agreement.
                 Obllgor warrants to Holder of Note and Lien that the Note and the Uen Documents, as
         modified, are valid and enforceable and represents that they are not subject to rights of offset,
         rescission, or other claims.

                                                      "'\   .....
    I, Jan8t Parker, County Clerk, Bumat~~ \ .~.'-:.·::~! . . ; ,
                                                                    ,,..   ,

    County, Texas do hereby cerflty tl:)*v~Jlrls · .o.      •••~ r."
    a true and correct copy as same ~ of • '                     \·.---.. ·                            PLAINTIFF'S
    record In my offl~:':Oti:l-                        ··: - -.., '\ : J;

0   sealeof
        office    on           -~ ;:;. •• .'
                   JANET PARKER . ·.; ',,•."·.·. t
                                                              . / ,_:,
                                                           . /~
                                                                               -1-
                                                                                                   I !~'I
                   BURNET COUNTY ODiRK · •· · :; '. .. ·:·
                   By Deputy; Jennifer ~C !J '. 1 •
                                                                               EXHIBIT H
0           When the context requires, singular nouns and pronouns Include the plural.




    STATE OF TEXAS                  §




    STATE OF TEXAS                  §
            This Instrument was acknowledged before me on    ~< ~                        '2009, by
    JOHNNY WADE.

0                                DIANE G. VAP.r!E.R
                                    Notary Puhl•·•




    STATE OF TEXAS                  §




    PREPARED IN THE OFFICE~------..,.;----•
    MARTIN 6 MIWCAN
    512 l!AST FOURTH ST.
    LAMPASAS, TX 78all0
    TEL: (1112) 555-15228
    FAX: (512) 158e-8821
    AFTER RECORDING RETURN TO:
    MARTIN 6 MILLICAN
    512 eA&T FOURTH ST.
    LAMPASAS, TX 78550
    TEL: (512) 658-8228
    FAX: (512) 1556-8821




0                                                     -2-
                                                                                                                                                              EXHIBITA·.
                                                                                               -.
                      '1'HB BTATB "OP' ~8 I";"": 1.·• ' .,••.. ·'            ~.                      p    •          ·. , •• •     •       ••        ••   •

                          .  · · .     . · • · · ·• • KNOW ALL IG:R. B'· 'l'HESlll "PRESENTSi
                     · Cotm'l'Y      ·op   LAMPASAS                I .. · . . ' ' ..                                                            ·.
                      ·    'l'bat we.·Hanue1 ~e1bert S71v~ater · and Cheater Horaae 871veate~ 1n-
                       d1v1.d11all7 and aa 1ndepandent·iexeoutora · ot ·1;h• •111a· and eatatao or
                        A.H. ~lveater and w1te ~ - B7lv••t•r• ~ath d•o••••d• M1.111a S71veatar
                        wile ot lllanoal. Dal.bart 873.veat•r• Melba B:rl.vaat•r• wS.te. f1r Cheater          .
                        Boi>a.aa Byl.veat•"I"• Lenora, Sy1")1•Btl'lr ' Bu1:1ar. and• h11ahan~· Auatin M. 1'Ut1er.
                     · OareS.n S J.veatar Sta•ar.t and lmnbancl· I.:van ·11. ~tew&:l't : o. · Zell Sylve.tar




         ..'
         .i'


          .
         l-.
         :...· ...
         :•




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                                ·.
                        ·.                                                            ·:·           • •       .J •   ~-
                                                                                                                           ...~-
                                                                                                                          ......       •• .. : ••

            ..,...                          ••::··.,I ~                                   .<
                                                          .· ...    ~ ~ :J :l   .-·
        I, Janet Parker, county Clark, Burriit'., \-· ~ 0 !. •·· : .:,•;·.
        County, Texas do hereby carflty ~tnlsJ" ;\ . . ••• ,,.
    I   a true and correct copy as ~~):if. ··. _ . .\ ::~:
        record In my offi~ ~i(                                                        :
0       seal of office on ~~.~                                           l, :


         e
                                                            ..
                                                     ~~ ., ,.~,.,     .
                         JANET PARKE:A.P~l::f:.:..:  . .. / ·
                         BURNET COUNT'l':ou;tt~ •·.· .•                                                                                                                                    b...
                             B Deputy.; J       nlf         ~         • .
                                                                                                                                                               ~;- :~·- ..• } .... . ~.;   :f .-F/\Cl:.~
·I

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    I

                                   Ocoupanta ot'.Pub11o 1anda, approved May 26th, 1673• . Bea1nnins
                                   at'at 11\4S6? ·v:r11o . N19 W.1'~om a,.p.oint;.360 v:ra-N :71B1'rona the··
                       ··; .... w"'w aor. 'o.t,: 1'ha Bugl\   MaC~-Y-.- Blp'J "fih;,N 19. W 9.$0 vra a l!lt md
                     .•·•r-..   'l')•benae a:L '9 ~z>a'l!"~ft Tl 250. ~a .a.'Medqu1te .:bra Si lil · l.62 v:r~. ·
                         1 : -.~'.rhenoe s·71 w·200 v:ra a· branch 9$0 .vra a at.md whence a L. o •
                              • " bra R 9t'E. :e16i-. 'n'll d.o .bra'N 6-3/4. E 219'1'- vi-a.
                                  1
                                                                                                     !L'h. S 19 E
                              ·     81.S vra a brruaoh 9SO vr• a·at md. 'l'h'N ~1 E ' 47S .v:ra.a branch
                                    q50 vra to the pl:aoe or b•B1.nn1ng, 'bear1nr;a miu-lted 'It.
                            .       'l'b.1rd 'l'ract: Ou11 or the.. 'l'hoa. W. D1•.1r. _!!Llr'!&)", 41111orib~d. as .
                ,,...~.~.. ~~·                                                   c!'f'·~ J'!\e                                               I ' ' ~-hiNI
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                                 '         8      '    a.;  •                                               •    '
                                 o'            tx•.•··
                                           117,: • •       :it:~•.')'•
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                                                                      :.  ~...,...~:u.u:a::; l~·"ltha.11 ~oe~tl,~'410~0~~'~7~~
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                            ~ '.f ~ ; az:c.e'J:,: P.1'.~l:~ :>;\,7 ~ :On.;J4e.J!!.~ll;1!e,' Or1f!.'e~ · i.n,,B~e1J.s:.C.0~1j,. , ; ~·t-: '..,.;. .;,~~-~
                     1-".T• '• !!'ex,-.,, 'apcl. 'pe~s., .p.p-t,"'10.t. ,@A'°Dd~a1 ....,.~,:Ln .the ,name '1C!t' .· " ·                              •
                     .., ... ~-;.· '.l'hOJllaa i:s;i,.~ir. Bagi:cnUig Ja.t·"'a atc:sn•'p:Da, 1.t·ba1ns ~e ot' >the

        ..
        ill.
        "
                    · •' i': ~ 'or:lg:S,Jla1' cornezoa o.t'.. aaid''orig:lnal.,'iaurve7,.t':ro111 .. whioh·~ Live ·Oak
                              · .,'bra. N SO W '7S . v.ra :· "'ltumoe. S 71· ·V( 9qo ;v:ra ':tio· 'a a1iontt· p1.l.e · 1'rom
                        • ·· ...;....,,h:lob a .}:.ive· Oall:·bra ' H !SO W. 7S'irra ... 'l'banoe 1f 19 W wi.t~ George·
                          • · 'Du:rt1el''a' l.:1ne. 600·..v:rs 1fo a rook md on .T. w•. Ha:rt•is South ·11ne ·
                                  . " tr-om Whiah an lil1m bra' S :7 W. '51 'Ti's • . Th N 71 E at .l.00 vra' thtt: "
                           · ·' ·           Creek, and atl l.600' vra. • T. vr. Hart• s S. E. cor ... :troni' wh1 ah ·• •
                             ·        · , .Meaqui te b:raii N J!j W 20 yrs. apd ElJll bra N 7h E SO vra., Th S
                                      : 19 .l!I to Meaqu:lte Cr'. and '•1.th the meanders oi the Creolt':down to
                                · · · whe:ra tha Oha:rl.a.a Wilson 'South 11na. araaaB'a· the• c:reek and·
                                .·~·,       thence So.uth· 19'.E,.·With said W:ll.acn l.i:ne. 400 ~·· to the oor or
                           :-· ·· ".        the a aniri · 'l'be. s.•~l.9 ."Jliwi th thit • or:lg:l.nal..- 11ne :~eo. v;ra ! 1io":f:he ·
                        ...~:•. -:·..,.~·s1.nn1ng' oor.i •. oonb'a:l.n1og . ·,.,,o~p~dr'ed" aa:1:ea, 1pore ;or'·l.eaa, , ..• , .
                                  ·.' SAVE •/.ND BXOBJ;''l' 40 aal'aa, mo:re or' l.eaa, "out': a.t' th:la"Surve;y, 'the··
                                 .          aa1d i.,o acres· bellig aa rol.J.owu ·"·'Beg at' the N W oar. or 'th:la
                                           ·Bill". Th a" out 100~ard a to and · -roas Meequ:l ta Q:r. '!l'h al.or>o;
                      .
                          .                 th.a .N l.:lne ~Me.aqu t.--. .cr ..._t,a.. a.JL~ut ~~~RO.ll1L~Oc.t'~•• .ll,e~~::
         ~"!·•· ~-a"'ro'ok'~al.l.~~ . '"sat: ·14e.q"u.1.1ie-..Ol';'o~enae a t"'oaa.~i?}1d.:te or-and . . ..
         F '·"              '.f "~/"s .~9.!·Jil;t'li'.bou              oo"v:i'• *toJ;-the •or:l'.g:l.nal." s 'bo&Ulda:r7-·11na ·o:t thia ·. ·
                                   ·•       alll've'7, '!fh:loh l.aatl DBJll&d b.o aoraa mor or l.eaa .is herel?Y reae:rove4
         ··~                   .l : .. :1 .t:rom th11:. prorta:l ona T·or ..this . 4eed. ..,...,..- · • / ···j · / · ,. , ... . ; . •               •
                              '··.:.,1""        'ALSO,':'BAvE 'Al'ID ~CEP'l'.• '"10 acraa • mors b:i:f·:l.a'sd, 011t. ar th•                      ·
                                       '· above' nBllled 'l'hoa .. DJ.air Su:r as oanvaJ'&d by A1io7' M. Ber:rJ' and
                                        ·• ·o. L • .,.O'l'avea and'w1'te, 11. n. O:ravea ·tg' R. :,S •. 'P·. Be:rry, by dead
                                       ' >dated ~· 14·; ·:1909,. roco:rded 1n"°Vo1. '46.,'pg. '9.S;:Daed ·fteco!'da
                                            Burnet County, Texaa 1 .daaor1bed 11"8' :f'ol.l.cwa:                     Al.1 thf\t certain
                                             p:leoe, parce1 or traat ot 1and out ot· the' Thomas B1'.ai.r Sur on
                                             Maaq111to C:r 1n 'u:rnot Count7, Texas, desaribed as :f'ol.l.cnrs:
                                             a pnrt o1' the 1o0 acres, or the aa1'd !l'homaa B1a:l:r Sur ·oonveJ'ed
                                           · to Al.:loe M. BerrJ' 'b7 J; w. DJ.air. and ~:lt'e.b7 the~r dead.dated
                                             Ma,. 29th, 19Q3, :rooo:rded 1.n Vo1. 40_, .pn pii.saa 14&-8, ot: the                              ....
                                             Deed Records ot Burnet'aountiy, 'T•:it••• to.which reference 1a
                                             hare made and tlhe sai.d ,pa:rt harain conve';red ia al.1 'b1' ' the
                                             aama wh\ah 11as on the Bast . aide o:f' the Lampasas and Austin
         111"...         •                   l'oas2,' w11~•1MiUqui4le C:r .aa the H bound1U"7 J:ine., the Chas Wi1aon~•
                . ... ~ '&tit       " · N~ ".own~         . . 17,y' ' J~et;Al.~x~der :,~a .' th! Eali·t · bo~&:r7 and .~e R. · i:f . ..
          ~ ci-1!,C~All                                       ~4l!P.n~e_t.sqµ'\lh."1;is.a1\1~~aaa~ .. and·~Au11;11~~ ~he
         •
        · ... Ii'~                       • \Ve'.ii11"'1So     lli'Y~l"conJ&pin:ing ,10,..aar~_a,:.mop~~· -e:t"                              ••" "'"-
           ..                  being the 1dentioa1 1and oomfeyed by W11l.i.ml E111a Bin'l-7 ~1 to
                               A. ll. 871.veatar by deed dated . Ravembar 8, 1938 ne'gor~ 'ir1iii~l. B7
               ..
          :1'"'•"
          ~
                               pogea 37o-81 o:f'. the Deed Records of Burnet C0Unt7,.TlltCIB&,~ ~hich
                                instruments and the record thereof reference 1.s'here~d~ ~11
                                purposes.                      .                                           ·            ·      c::: c::
                                         The aranto:rs Manual. D111bart Sy1ve,~ar,.~enora 8y1~a~d&l~lltl.er,
                                Oore:ln S71veat~r Stewart, Cheater Ho~aoe 871.veate:r, · 'iiiid ~~el.1
                               Syl.voater Ph111:lpa and the grantee Bde11 S7l.ve11tar.Wa"iF'e ~oa~1eo­
           ,:·                 tive17, a11 or the oht.adren 01' A. H. S71veate:r and wid:Ja ~
                               syl.veater, both deoeaaed, ,an~ . •11 are the dev1.11eaa au.a, i u e e a 1.n
                               the reapeot1ve w:l11s o:f' A. "H •• Sy1veater and Erahla Syl.vaat                                       bath
                               ~eceased, and th:la conveyance 1.a made· l'ar"the.'pu:rpaee· at                                         ect11at1.ng
           •"                  •      ft•~ . . 1~1nn and d&v~s:lon a.t' ~3e eatatea or the ~a1d A. H. S71veatar




0
                                                                                                      I   •;.
 - - - - - :··




O·.              ..
                                              "'        ..
                                                                .       ·' ., •   : ••• 1j; ••   • ·.: ....



                      '




                  .... :
                                       and nmma 87,l.V~ater. deoeaeed, -the under•isnod arantora beraby aanv.07-
                                       1.t\g unto tha BZ"antaea bare1n and undivided 1'1.ve-aixtba (S/f>l intereat
                                       in \the above deao:r:1baJ! l.and., the grantee Edel.l. Sy1veater Wade owning
                  ~                    tb~ other undlv~de~ one-aUcth·(l/b) interaat t9•r~1n·aa on.a 01' 1:he
                                      ·dev'-'••e• 01' the /\. B. and Bnna 87;1.veate:r, deceased.      •
                                            ~o R~'VF. "1ID ~a HOLD· the above described ~remiaea, tacetbar with                                                                   .
                                ·       a11 sna. a1~ul.~r. ~lie 'lliB\'J.t• .ana· appurtenano•• thereto ·1 n anywise
                 •. !.                  be1~!;! unto the aaid . r l . e a Otta Wada and w1.1'e li:d.el.l. S;yl.veater ,
                                1•1F.ndW1f'~b'l•·~·iill               i1PF6P~.it"~eSW~~Q;,A~~~.1.ndioJ>u:e.t\.,'!:r.~· ··-· ·•..
                             . :.t  our''li•1ra,'!e;iteou~or· · ~· adlll1n1atratara,· ta-Warrari.1;!1lna""7t1r'ever •          .
                 ·• ,;::,.,_·    · .De.rand.. al.l aad aingul.azo the .. 'aud prem1aea unto ~the· Sa~d Charles· Otto
                  r                   .. Wade and wi1'e Edell. 871.veater'·W•da, their ha:l.ra and aaaigna against
                                       ever7 peraon·whcnnsoever ·1aw1'ul.l7 o~ailllina, ·or to al.aim the aame, or
                                       any part theroo1'.       .       ·                                     .:
                                           But i t i s e~praaaly·~read and atipul.ated that the ·v~ndor•a Lien
                                       anti aupe:r1o:r titl.a are rll!tairuld o.sainat .the above aeao:ribod. property
                                       F - i • a a· and 1.mprav•-nta> bl 1'avor o1' Manual. I>el.bert· B:rl.veater until.·
                                       the above da•o:r1.bed no~· ·and al.1 interest thereon azoe.:tu1l.~ paid         .
                                       &.'.loordin8 to 1ta 1'aoa e.nd tenor, erreot and reading, •hen thi.a aaed
                                       ab-11 benome 'baol.ute.        ·     •                    ·      ·
                                           Witnoan our hnnda.~t Lampasas, TexAa, this 1st day or a.nailrFt
                                       A. D •.l..9$2.    ·   .            .    · ..

                                      ~rR 1~ ..-i·. Suu,d                                               J
                                                                                                              i
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                                                                                                                    ·v ul.            .~die.      . VI              t~tftl\iaiaa'li
                                                                                                                                                                      .          ,. .
                                       ~~                ...ILLl                        qp.,JtA
                                                                    .                                         :tn   v        ua   7 an   aa       epen en           executor o;
                  "*- ot•       •••   -.P! . . . ··:f- /!..~·-.QI,;;,                              . ;f:: wU:           or   .A,, • • ~· ~~)~~ate~ ••-batb.               d-••• .
                  \1?":                ~,, ·~---~t-~-t?tr--.                                                  tZl1_,u,,, . ~;n-~,                                             '

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                                        TBE STA'l'E OP TEJC11.8                     t                                                         ·    ~        c->r-
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                                           1'ar       ~On\1nty;, 'l'·fl:'l.aD,· on this day pa:ranna11y llppen~·Mr:QlRfl
                                           DA1 or Sylvaata:r, and Uil1ia Sylvester, hi• wi:ta, bat .                ojiij.(">
                                            to me to . be the 1'o:ranna "llhoae namaa are a ubaoribed·to t          r..se-
                                           so1ns instrument, andaaknon1edffed to ma that they eaob o~eo~



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                      ·· ·                  the a ame :tor the p!U"plllaaa and oonaideration therein expreaaad, and
                                           'l;ll~~d M1.lli.e Sylvester, 1r11'e or the said Manuel. Dil1'3e:rt S';)"l.ve11ter
                                           J:ia,,..........-be~xlUD!.ned' ·b:r ma pZ'ivll7 and apart .r:rom her huaband, and
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                                           c1Rrad thnt abe ~~d w~11~nr,1y a~r;ned the same ~or tl'a pur~onas nnd
                                            oonaiderntion therin e~praasod, and tbat ahe did not w~ah~to re-
                                            trant i t . ·
                                              Cl!VEJI '"!'!DEil MY J1A11D AND SBAL OF OFFICE, Thia                                        2btb    clay 01'    J&Jjlu.U-7~·.
                                           A. D.       1953 •




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                                 A.O. 1$2•


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                                                       .•• :'.ll ! l ;i / . . -
    I, Joinet Parker, County Clerk, Bumet . ~·:;•'::·····         ',"···:'!,,'·
    County, TeKSS do hereby certify that ,tht'il'la' .    ·                    \V
    a true end correct copy as same appeill'.s'Qf. .       1.. -'- :~··~ ~ ~
    record In my offic~:~ rt                              ·-:~ ''· ; .
                                         ·1 · • I~                _· .·. - .\: : "'.
    seal of office on
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          -                                       ·;:.;... . /. .. . ··::·\   ~-;~7 : ·                    .. •
                                         '· :.....'.:.• •.•.••• ·:···.•~...
                     JANETPARK£R
                   . BUANETCOUNTYCLERK ··:; r":\ ·                                        '·   ·: ...~K
                                                                                               :,...  ... . . ·......_ 5......\='AGES
                                                                                                       ~




                       Deputy: Jenni Ruasell
0




    FILED AND RECORDED
           OFFICIAL. PUBLIC RECORDS


                                      290985193
     .r...,,.   88, ZH8 18:81:48 M
                   FKK: $49.88
     ~anet   Parker, County Clark
           Burnet eo..~ty, Texaa
   SUBCHAPTER B.   FORM OF STATUTORY DURABLE POWER OF
                         ATTORNEY

     Sec. 752.051. FORM. The following form is known
as a "statutory durable power of attorney":
          STATUTORY DURABLE POWER OF ATTORNEY

NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD
AND SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER
OF ATTORNEY ACT, SUBTITLE P, TITLE 2, ESTATES CODE. IF
YOU HAVE ANY QUESTIONS ABOUT THESE POWERS, OBTAIN
COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT
AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE
DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF
ATTORNEY IF YOU LATER WISH TO DO SO.
     You should select someone you trust to serve as
your agent (attorney in fact). Unless you specify
otherwise, generally the agent's (attorney in fact's)
authority will continue until:
         (1) you die or revoke the power of attorney;
         (2) your agent (attorney in fact) resigns or
is unable to act for you; or
         (3) a guardian is appointed for your estate.
     I, __________ (insert your name and address),
appoint __________ (insert the name and address of the
person appointed) as my agent (attorney in fact) to act
for me in any lawful way with respect to all of the
following powers that I have initialed below.
     TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE
LINE IN FRONT OF (N) AND IGNORE THE LINES IN FRONT OF
THE OTHER POWERS LISTED IN (A) THROUGH (M).
     TO GRANT A POWER, YOU MUST INITIAL THE LINE IN
FRONT OF THE POWER YOU ARE GRANTING.
     TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN
FRONT OF THE POWER. YOU MAY, BUT DO NOT NEED TO, CROSS
OUT EACH POWER WITHHELD.

                        EXHIBIT I
     ____ (A) Real property transactions;
     ____ (B) Tangible personal property transactions;
     ____ (C) Stock and bond transactions;
     ____ (D) Commodity and option transactions;
     ____ (E) Banking and other financial institution
transactions;
     ____ (F) Business operating transactions;
     ____ (G) Insurance and annuity transactions;
     ____ (H) Estate, trust, and other beneficiary
transactions;
     ____ (I) Claims and litigation;
     ____ (J) Personal and family maintenance;
     ____ (K) Benefits from social security, Medicare,
Medicaid, or other governmental programs or civil or
military service;
     ____ (L) Retirement plan transactions;
     ____ (M) Tax matters;
     ____ (N) ALL OF THE POWERS LISTED IN (A) THROUGH
(M). YOU DO NOT HAVE TO INITIAL THE LINE IN FRONT OF
ANY OTHER POWER IF YOU INITIAL LINE (N).
                  SPECIAL INSTRUCTIONS:

     Special instructions applicable to gifts (initial
in front of the following sentence to have it apply):
____ I grant my agent (attorney in fact) the power to
apply my property to make gifts outright to or for the
benefit of a person, including by the exercise of a
presently exercisable general power of appointment held
by me, except that the amount of a gift to an
individual may not exceed the amount of annual
exclusions allowed from the federal gift tax for the
calendar year of the gift.
     ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL
INSTRUCTIONS LIMITING OR EXTENDING THE POWERS GRANTED
TO YOUR AGENT.
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________

     UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF
ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL CONTINUE
UNTIL IT IS REVOKED.
     CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY
CROSSING OUT THE ALTERNATIVE NOT CHOSEN:
     (A) This power of attorney is not affected by my
subsequent disability or incapacity.
     (B) This power of attorney becomes effective upon
my disability or incapacity.
     YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF
ATTORNEY IS TO BECOME EFFECTIVE ON THE DATE IT IS
EXECUTED.
     IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE
ASSUMED THAT YOU CHOSE ALTERNATIVE (A).
     If Alternative (B) is chosen and a definition of
my disability or incapacity is not contained in this
power of attorney, I shall be considered disabled or
incapacitated for purposes of this power of attorney if
a physician certifies in writing at a date later than
the date this power of attorney is executed that, based
on the physician's medical examination of me, I am
mentally incapable of managing my financial affairs. I
authorize the physician who examines me for this
purpose to disclose my physical or mental condition to
another person for purposes of this power of attorney.
A third party who accepts this power of attorney is
fully protected from any action taken under this power
of attorney that is based on the determination made by
a physician of my disability or incapacity.
     I agree that any third party who receives a copy
of this document may act under it. Revocation of the
durable power of attorney is not effective as to a
third party until the third party receives actual
notice of the revocation. I agree to indemnify the
third party for any claims that arise against the third
party because of reliance on this power of attorney.
     If any agent named by me dies, becomes legally
disabled, resigns, or refuses to act, I name the
following (each to act alone and successively, in the
order named) as successor(s) to that agent:
__________.
     Signed this ______ day of __________,
_____________
                               ________________________
___
                               (your signature)
State of _______________________
County of ______________________
This document was acknowledged before me on
____________(date) by ________________________
(name of principal)
                            ___________________________
___
                            (signature of notarial
officer)
(Seal, if any, of notary)
________________________________________
                       (printed name)
                       My commission expires:
______________
   IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT)

Agent's Duties
     When you accept the authority granted under this
power of attorney, you establish a "fiduciary"
relationship with the principal. This is a special
legal relationship that imposes on you legal duties
that continue until you resign or the power of attorney
is terminated or revoked by the principal or by
operation of law. A fiduciary duty generally includes
the duty to:
         (1) act in good faith;
         (2) do nothing beyond the authority granted
in this power of attorney;
         (3) act loyally for the principal's benefit;
         (4) avoid conflicts that would impair your
ability to act in the principal's best interest; and
         (5) disclose your identity as an agent or
attorney in fact when you act for the principal by
writing or printing the name of the principal and
signing your own name as "agent" or "attorney in fact"
in the following manner:
     (Principal's Name) by (Your Signature) as Agent
(or as Attorney in Fact)
     In addition, the Durable Power of Attorney Act
(Subtitle P, Title 2, Estates Code) requires you to:
         (1) maintain records of each action taken or
decision made on behalf of the principal;
         (2) maintain all records until delivered to
the principal, released by the principal, or discharged
by a court; and
         (3) if requested by the principal, provide an
accounting to the principal that, unless otherwise
directed by the principal or otherwise provided in the
Special Instructions, must include:
              (A) the property belonging to the
principal that has come to your knowledge or into your
possession;
              (B) each action taken or decision made by
you as agent or attorney in fact;
              (C) a complete account of receipts,
disbursements, and other actions of you as agent or
attorney in fact that includes the source and nature of
each receipt, disbursement, or action, with receipts of
principal and income shown separately;
              (D) a listing of all property over which
you have exercised control that includes an adequate
description of each asset and the asset's current
value, if known to you;
              (E) the cash balance on hand and the name
and location of the depository at which the cash
balance is kept;
              (F) each known liability;
              (G) any other information and facts known
to you as necessary for a full and definite
understanding of the exact condition of the property
belonging to the principal; and
              (H) all documentation regarding the
principal's property.
Termination of Agent's Authority
     You must stop acting on behalf of the principal if
you learn of any event that terminates this power of
attorney or your authority under this power of
attorney. An event that terminates this power of
attorney or your authority to act under this power of
attorney includes:
         (1) the principal's death;
         (2) the principal's revocation of this power
of attorney or your authority;
         (3) the occurrence of a termination event
stated in this power of attorney;
         (4) if you are married to the principal, the
dissolution of your marriage by court decree of divorce
or annulment;
         (5) the appointment and qualification of a
permanent guardian of the principal's estate; or
         (6) if ordered by a court, the suspension of
this power of attorney on the appointment and
qualification of a temporary guardian until the date
the term of the temporary guardian expires.
Liability of Agent
     The authority granted to you under this power of
attorney is specified in the Durable Power of Attorney
Act (Subtitle P, Title 2, Estates Code). If you
violate the Durable Power of Attorney Act or act beyond
the authority granted, you may be liable for any
damages caused by the violation or subject to
prosecution for misapplication of property by a
fiduciary under Chapter 32 of the Texas Penal Code.
     THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR
ACTING UNDER THE APPOINTMENT, ASSUMES THE FIDUCIARY AND
OTHER LEGAL RESPONSIBILITIES OF AN AGENT.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B.
2759), Sec. 1.01, eff. January 1, 2014.
Amended by:
     Acts 2013, 83rd Leg., R.S., Ch. 700 (H.B. 2918),
Sec. 1, eff. January 1, 2014.
