                                                                                   ACCEPTED
                                                                               05-15-01513-CV
                          05-15-01513-CV                            FIFTH COURT OF APPEALS
                                                                               DALLAS, TEXAS
                                                                         12/11/2015 4:54:22 PM
                                                                                    LISA MATZ
                                                                                        CLERK

Oral Argument Requested

                      No. 05-15-___________-CV           FILED IN
                                                  5th COURT OF APPEALS
                                                       DALLAS, TEXAS
           ____________________________________________
                                                  12/11/2015 4:54:22 PM
                                                         LISA MATZ
                       COURT OF APPEALS                    Clerk
                              for the
                    FIFTH DISTRICT OF TEXAS
             ________________________________________

       In re VSDH Vaquero Venture, Ltd. and Douglas M. Hickok,

                                        Relators.
             ________________________________________

                 Original Mandamus Proceeding from
                  County Court at Law Number One
                       of Dallas County, Texas
                      Cause No. CC-09-05232-A
                 Honorable D’Metria Benson Presiding
             ________________________________________

                      MANDAMUS RECORD
                            (Tabs 1-29)
             ________________________________________


         J. Carl Cecere                  Jeffrey S. Levinger
         State Bar No. 24050397          State Bar No. 12258300
         Cecere PC                       Levinger PC
         6035 McCommas Blvd.             1445 Ross Avenue
         Dallas, Texas 75206             Suite 2500
         Telephone: 469-600-9455         Dallas, Texas 75202
         ccecere@cecerepc.com            Telephone: 214-855-6817
                                         Facsimile: 214-855-6808
                                         jlevinger@levingerpc.com
                                         Attorneys for Relators
Evan Lane (Van) Shaw        Kenneth B. Chaiken
State Bar No. 18140500      State Bar No. 04057800
Law Offices of Van Shaw     Chaiken & Chaiken, PC
2723 Fairmont Street        5801 Tennyson Parkway
Dallas, Texas 75201         Suite 440
Telephone: 214-754-7110     Plano, Texas 75204
Facsimile: 214-754-7115     Telephone: 214-265-0250
Email: van@shawlaw.net      Facsimile: 214-265-1537
                            Email: kchaiken@chaikenlaw.com

Attorney for VSDH Vaquero   Attorney for Douglas M. Hickok
Venture, Ltd.
                                      INDEX TO MANDAMUS RECORD

Volume 1
Certificate of Service

Verification of J. Carl Cecere
Plaintiff’s Original Petition (July 2, 2009) ............................................... tab 1

Van Shaw’s Petition in Intervention (July 7, 2009) ................................. tab 2

Doug Hickok’s Petition in Intervention (July 7, 2009) ............................ tab 3

Original Answer to Defendants/Counter-Plaintiffs’ Counterclaim
(October 5, 2009) ...................................................................................... tab 4
Ken Gross’ and Betsy Gross’ First Amended Counter-Claim
Against VSDH Vaquero Venture, Ltd., Evan L. Shaw and
Douglass M. Hickok, and Original Third-Party Petition Against
VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. (February
16, 2010) ................................................................................................... tab 5

First Amended Answer to Defendants/Counter-Plaintiffs’
Counterclaim (March 29, 2010)................................................................ tab 6

Plaintiff’s First-Amended Petition (April 30, 2010)................................. tab 7
Ken Gross’ and Betsy Gross’ Second Amended Counterclaim
Against VSDH Vaquero Venture, Ltd., Evan L. Shaw, and
Douglas M. Hickok and First Amended Third-Party Petition
Against VSDH Vaquero Homes, Inc. and VSDH Homes, Inc.
(June 2, 2010) ............................................................................................ tab 8

Counter-Defendants’ Second Supplemental Answer as An
Addition to Counter-Defendants’ First Supplemental Answer
and Counter-Defendants’ First Amended Answer to
Defendants/Counter-Plaintiffs’ Counterclaim .......................................... tab 9

Intervenor/Counter-Defendant Douglas M. Hickok’s Amended
and Supplemental Answer to Defendants/Counter-Plaintiffs’
Counterclaim (April 28, 2011)................................................................ tab 10



                                                             i
Order Partially Granting Intervenor Evan L. Shaw’s No-
Evidence Motion for Summary Judgment (April 22, 2011) ................... tab 11
Plaintiff/Counter-Defendant VSDH Vaquero Venture, Ltd.’s
Third Supplemental Answer as an Addition to Counter-
Defendants’ First and Second Supplemental Answers and
Counter-Defendants’      First    Amended      Answer        to
Defendants/Counter-Defendants’ First Amended Answer to
Defendants/Counter-Plaintiffs’ Counterclaim (April 29, 2011) ............. tab 12
Ken Gross’ and Betsy Gross’ Third Amended Counter-Claim
Against VSDH Vaquero Venture, Ltd., Evan L. Shaw and
Douglas M. Hickok and Second Amended Third-Party Petition
Against VSDH Vaquero Homes, Inc. and VSDH Homes, Inc.
(April 15, 2013)....................................................................................... tab 13

Defendants/Counter-Plaintiffs Ken Gross and Betsy Gross’
Witness List (November 26, 2013 .......................................................... tab 14
Plaintiff’s Motion for Continuance (December 6, 2013) ....................... tab 15

Plaintiff/Counter-Defendant VSDH Vaquero Venture, Ltd.’s Fourth
Supplemental Answer as An Addition to Counter-Defendants’ First,
Second and Third Supplemental Answers and Counter-Defendants’
First Amended Answer to Defendants/Counter-Plaintiffs’
Counterclaim (January 24, 2014)............................................................ tab 16
Ken Gross and Betsy Gross’ Motion to Disqualify Evan L.
Shaw (February 27, 2014)....................................................................... tab 17

Notice of Hearing (June 2, 2014)............................................................ tab 18

Transcript of the hearing on Ken and Betsy Gross’ Motion to
Disqualify Evan L. Shaw (June 18, 2014. .............................................. tab 19
Memorandum Opinion (August 29, 2014) ............................................. tab 20

Order Vacating Oral Ruling on Motion to Disqualify Evan L.
Shaw (September 18, 2014) .................................................................... tab 21

Van Shaw’s Motion to Withdraw and Plaintiff/Counter-
Defendant VSDH Vaquero Venture, Ltd.’s Motion for Mistrial
(June 16, 2015) ........................................................................................ tab 22

                                                           ii
Ken Gross and Betsy Gross’ Brief on VSDH’s Motion for
Mistrial (June 16, 2015) .......................................................................... tab 23
Trial Transcript, vol. 2: Proceedings on June 10, 2015 .......................... tab 24
Trial Transcript, vol. 3: Proceedings on June 15, 2015 .......................... tab 25

Trial Transcript, vol. 4: Proceedings on June 16, 2015 .......................... tab 26
Trial Transcript, vol. 5: Proceedings on June 17, 2015 .......................... tab 27

Trial Transcript, vol. 6: Proceedings on June 18, 2015 .......................... tab 28

Trial Transcript, vol. 7: Proceedings on June 19, 2015 .......................... tab 29
The Grosses’ Trial Exhibits .................................................................... tab 30
VSDH’s Trial Exhibits ............................................................................ tab 31

Charge of the Court (June 19, 2015)....................................................... tab 32
Motion for Judgment (July 17, 2015) ..................................................... tab 33
Douglas M. Hickok’s Motion for Entry of Judgment (July 22,
2015) ....................................................................................................... tab 34
Gross’ Motion for New Trial (July 29, 2015)......................................... tab 35
Transcript of the hearing on the motion for new trial and
motions for judgment (August 26, 2015)................................................ tab 36

Order Granting Gross’ Motion for New Trial (August 31, 2015) .......... tab 37
Douglas M. Hickok’s Objections to the Proposed Order
Granting the Grosses’ Motion for New Trial (August 31, 2015) ........... tab 38
Motion to Vacate August 31, 2015 Order Granting Gross’
Motion for New Trial and Motion for Hearing on the Record, on
Hickok’s Objection to Such Order as A Proposed Order
(September 3, 2015) ................................................................................ tab 39

Motion to Vacate August 31, 2015 Order Granting Gross’
Motion for New Trial and Motion for Hearing on the Record, on



                                                             iii
Evan L. Shaw’s Objection to Such Order as A Proposed Order
(September 4) .......................................................................................... tab 40
Order Granting Intervenor Shaw’s Unopposed Motion for
Continuance (October 7, 2015) ............................................................... tab 41




                                                          iv
                                  Respectfully submitted,

                                  /s/ Jeffrey S. Levinger
J. Carl Cecere                    Jeffrey S. Levinger
State Bar No. 24050397            State Bar No. 12258300
Cecere PC                         Levinger PC
6035 McCommas Blvd.               1445 Ross Avenue, Suite 2500
Dallas, Texas 75206               Dallas, Texas 75202
Telephone: 469-600-9455           Telephone: 214-855-6817
Email: ccecere@cecerepc.com       Facsimile: 214-855-6808
                                  Email: jlevinger@levingerpc.com

                                  Attorneys for Relators

                                  Evan Lane (Van) Shaw
                                  State Bar No. 18140500
                                  Law Offices of Van Shaw
                                  2723 Fairmont Street
                                  Dallas, Texas 75201
                                  Telephone: 214-754-7110
                                  Facsimile: 214-754-7115
                                  Email: van@shawlaw.net

                                  Attorney for VSDH Vaquero Venture,
                                  Ltd.

                                  Kenneth B. Chaiken
                                  State Bar No. 04057800
                                  Chaiken & Chaiken, PC
                                  5801 Tennyson Parkway
                                  Suite 440
                                  Plano, Texas 75204
                                  Telephone: 214-265-0250
                                  Facsimile: 214-265-1537
                                  Email: kchaiken@chaikenlaw.com

                                  Attorney for Douglas M. Hickok




                              1
                            CERTIFICATE OF SERVICE

       The undersigned certifies that a copy of this Mandamus Record was served
on all counsel of record via the Court’s electronic filing system on this 11th day of
December, 2015.

       Steven E. Aldous
       Forshey & Prostok, LLP
       500 Crescent Court, Suite 240
       Dallas, Texas 75201




                                             /s/ Jeffrey S. Levinger
                                             Jeffrey S. Levinger




                                         2
                                     VERIFICATION

STATE OF TEXAS                               §
                                             §
COUNTY OF DALLAS                             §

      Before me the undersigned authority, on this day personally appeared J. Carl

Cecere, who being by me sworn, deposed and stated as follows:

      My name is J. Carl Cecere. I am over the age of 18 years and am competent

to make this verification. I am one of the attorneys for the Relators in this matter,

and I have read the foregoing Petition for Writ of Mandamus. The Mandamus

Record includes true and correct copies of every document that is material to the

Relators' claim for relief and each document was filed in the underlying proceeding.

All of the pleadings included in the Mandamus Record are true and correct copies

of the originals on file in the trial court, and all of the hearing transcripts and exhibits

included in the Mandamus Record are true and correct copies of the originals

prepared by the official court reporter.



                                                 J. ~ecere
       Subscribed and sworn to before me on this /tJ-13- day of December, 2015.

                                                 ~huw~
                                                     State0f ~p.asA
                                                 Notary Public,       tiJ
          VERONICA ANNE HODGES
           My Commission Expires
                                                 Name: ~011 l ~ A-.~P'.s
               July 2, 2018                      Commission Expires: 1}-j2-1Jjy



                                             3
TAB 1
                                     CAUSE NO.         tt"~- of"2.ll--~


VSDH VAQUERO VENTURE, LTD.                         §          IN THE COUNTY COURT              . S \S
                                                   §                              2nuq JUL -2 PH :
V.                                                 §          AT LAW NUMBER __J__                         : ,
                                                   §                                   ' .            . ..._,i
                                                                            ,._'.\ I::'.'.,.",,< . ; ;:. Q\1~
KEN GROSS and BETSY GROSS                          §          DALLAS COUNTY,Cf_nYia <i: cvo.''u'":•r" y
                                                                                      OALL.'A'S' · "

                                 PLAINTIFF'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

        Comes now Plaintiff, VSDH VAQUERO VENTURE, LTD., complaining of KEN
GROSS and BETSY GROSS, hereinafter called Defendants, and for cause of action would
respectfully show unto the Court the following:

                                                         I.
                                    DISCOVERY CONTROL PLAN

        Discovery is intended to be conducted under Discovery Control Plan Level 2 as set forth
in the Texas Rules of Civil Procedure.

                                                   II.
                                                 PARTIES

           Plaintiff is a Texas limited partnership.

      Defendant, KEN GROSS, is an individual who may be served with process at 2004 White
Wing Cove, Westlake, Texas.

      Defendant, BETSY GROSS, is an individual who may be served with process at 2004
White Wing Cove, Westlake, Texas.

                                                   III.
                                                  VENUE

      Venue is proper in Dallas County, Texas pursuant to Section 15.002 of the Civil Practice &
Remedies Code.




PLAINTIFF'S ORIGINAL PETITION - Page I
Pltf.Orig.Pet
                                                IV.
                                         STATEMENT OF FACTS

        Upon information and belief, Plaintiff asserts the following Statement of Facts which, in
addition to other facts, support Plaintiffs causes of actions set out herein.

       Defendants made demand on Plaintiff to perform pursuant to what Defendants claim is
Plaintiffs obligation to perform. Defendants failed to adhere to their approval obligations and
have caused damages to Plaintiff in excess of the minimum jurisdictional limits of this Court.


                                                  v.
                          CAUSES OF ACTION AS TO DEFENDANTS

                                          Count A - Negligence

        Plaintiff would show that the occurrence made the basis of this lawsuit referred to in this
Petition and Plaintiffs resulting damages were proximately caused by the negligent conduct of
the Defendants. Said negligence proximately caused the occurrence made the basis of this action
and Plaintiffs damages in excess of the minimum jurisdictional limits of the Court.


                                    Count B - Breach of Contract

        Plaintiff would show that the foregoing allegations constitute breach of contract and said
breach has caused Plaintiff damage as a direct, proximate, producing cause and responsibility
thereof in an amount in excess of the minimum jurisdictional limits of this Court.



                                        VI.
                        PREJUDGMENT/POST-JUDGMENT INTEREST

        Plaintiff would further show the Court that many of its damages may be determined by
known standards of value and accepted rules of interest as damages from the date of loss and/or the
date such damages can be determined prior to judgment, or as the Court otherwise directs,
calculated at the legal rate, or as otherwise set by law.


                                                  VII.
                                    ALTERNATIVE PLEADING

       Plaintiff incorporates by reference and re-alleges all preceding sections of this Petition and
would further show that all pleadings herein, if deemed inconsistent, are made and should be
construed in accordance with Rule 48 of the TEXAS RULES OF CIVIL PROCEDURE.
PLAINTIFF'S ORIGINAL PETITION - Page 2
Pltf.Orig.Pet
         WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that upon final
trial hereof, Plaintiff recovers judgment against the Defendants for the following:

        1.     Judgment against Defendants for actual damages;

       2.      Pre-judgment interest;

       3.      Post-judgment interest;

        4.     Court costs; and

        5.     Such other and further relief, both at law and in equity, to which Plaintiff may be
               justly entitled, both in law and in equity.




                                             ~~"""'"'~
                                             EVAN LANE (VAN) SHAW
                                             State Bar No. 18140500
                                             LAW OFFICES OF VAN SHAW
                                             2723 Fairmount Street
                                             Dallas, Texas 75201
                                             (214) 754-7110
                                             FAX NO. (214) 754-7115

                                             ATTORNEY FOR PLAINTIFF




PLAINTIFF'S ORIGINAL PETITION   Page 3
Pltf.Orig.Pet
                                           LAW OFFICES
                                               OF                                      !'.= H ,. !)
                                            VAN SHAW
                                                                               20D9 JUL -2 PH 5: 16
                                           ATTORNEYS AT LAW
           VAN SHAW•                                                               DANIEL K. HAGOOD
         JANET R. RANDLE                    2723 FAIRMOUNT                        ,;    pF COUN~EL , . ":   i•j
                                                                                 cf~~1firM¥~
                                          DALLAS, TEXAS 75201
      •BOARD CERTIFIED IN                     (214) 754-7110
        PERSONAL INJURY                   FAX NO. (214) 754-7115
       •CERTIFIED PUBLIC
          ACCOUNTANT
                                        www.shawlawoffice.com                          LORI G. MOORE
                                                                                       APRILS. SUMNER




Mr. John F. Warren                                     July 2, 2009
County Clerk                                           VIA HAND DELIVERY
509 Main St.
Records Building
Dallas, TX 75202

RE:       VSDH Vaquero Venture, Ltd. v. Ken Gross and Betsy Gross

Dear Mr. Warren:

Enclosed via hand delivery please find Plaintiffs Original Petition in the above-styled cause. Please
file the same with the Court's records and return a file-marked copy to the undersigned.

Further, please prepare and return citations for service to be obtained on the following Defendants:

          Defendant, KEN GROSS, at 2004 White Wing Cove, Westlake, Texas; and

          Defendant, BETSY GROSS, at 2004 White Wing Cove, Westlake, Texas.

Also, enclosed is a check in the amount of$267.00 for filing, jury and bailiffs fees.

Thank you for yo       ssistance.




Van Shaw
VS/Im
Enclosures - hand delivery




YS.ltr2Ct.Pet
TAB 2
                                           CAUSE NO. CC-09-05232-A
                                                                                .,_,,,,.,
VSDH VAQUERO VENTURE, LTD.                            §         IN THE COUNTY CrOlJRT:      ~7
                                                      §                                          r··.
                                                                                                  I /    :, :    ') ')
                                                                                                                ,,_,...,
v.                                                    §         AT LAW NUMBER\'..
                                                      §
KEN GROSS and BETSY GROSS                             §         DALLAS COUNTY, TiiXAS            : :.j
                                                                                                 , I)'

                                VAN SHAW'S PETITION IN INTERVENTION

TO THE HONORABLE JUDGE OF SAID COURT:

        Comes now Intervenor, VAN SHAW, and files this his Petition in Intervention and would
respectfully show unto the Court as follows:

                                                          I.

                                  DISCOVERY CONTROL PLAN I PARTIES

        Discovery is intended to be conducted under Discovery Control Plan Level 2 as set forth
in the Texas Rules of Civil Procedure.
           Intervenor is an individual.

           Plaintiff is a Texas limited partnership.

      Defendant, KEN GROSS, is an individual who may be served with process at 2004 White
Wing Cove, Westlake, Texas.

      Defendant, BETSY GROSS, is an individual who may be served with process at 2004
White Wing Cove, Westlake, Texas.

                                                          II.

                                                      VENUE

      Venue is proper in Dallas County, Texas pursuant to Section 15.002 of the Civil Practice &
Remedies Code.




\'A!\' SHA\V'S PETITION   I~   INTERVENTION- Page I
Pct Intervention
                                                III.

                            INTERVENOR'S CAUSE(S) OF ACTION

        Defendants have made claims of indemnity on Intervenor that are not accurate.


                                                IV.

                                            NEGLIGENCE

        The occurrence made the basis of this lawsuit referred to above and Intervenor's resulting
damages were proximately caused by the negligent conduct of the Defendants. Said actions
constituted negligence which proximately caused the occurrence made the basis of this action and
Intervenor's damages in an amount in excess of the minimum jurisdictional limits of the Court.


                                                 v.
                       PREJUDGMENT/POST-JUDGMENT INTEREST

        Intervenor would further show the Court that many of his damages may be determined by
known standards of value and accepted rules of interest as damages from the date of loss and/or the
date such damages can be determined prior to judgment, or as the Court otherwise directs,
calculated at the legal rate, or as otherwise set by law.


                                                VI.

                                    ALTERNATIVE PLEADING

       Plaintiff incorporates by reference and re-alleges all preceding sections of this Petition and
would further show that all pleadings herein, if deemed inconsistent, are made and should be
construed in accordance with Rule 48 of the TEXAS RULES OF CIVIL PROCEDURE.


      WHEREFORE, PREMISES CONSIDERED, Intervenor asks upon final hearing, he recover
judgment for:

        I.      Actual damages in an amount in excess of the minimum jurisdictional limits of the
                Court;

        2.      Pre-judgment interest and post-judgment interest at the maximum legal
                amount allowed by law;

VAN SHA W'S PETITION IN INTERVENTION - Page 2
Pet.Intervention
        3.      Court costs; and

        4.      Such other and further relief, both at law and in equity, to which Intervenor may be
                justly entitled, both in law and in equity.



                                                Respectfully submitted,



                                                               ..

                                                EVAN LANE (VAN) SHAW
                                                                    //
                                                State Bar No. 18140500
                                                LAW OFFICES OF VAN SHAW
                                                2723 Fairmount Street
                                                Dallas, Texas 75201
                                                (214) 754-7110
                                                FAX NO. (214) 754-7115

                                                ATTORNEY FOR PLAINTIFF




VA'I SHAW'S PETITION IN INTERVENTION - Page 3
Pet.Intervention
                                                                                             ,_.,.


                                              LAW OFFICES
                                                                                        .,
                                                  OF
                                               VAN SHAW
                                                                                n:
             VAN SHAW•
                                              ATIORNEYS AT LAW
                                                                              G.~ '. · bA~tEL.K HAoaop
           JANET R. RANDLE                      2723 FAIRMOUNT                   . '· '<OFtC.ciUNSok'

        •BOARD CERTIFIED IN
                                              DALLAS, TEXAS 75201
                                                 (214) 754-7110
                                                                                  CERTIFl;~"~;i.{~~ALS
                                                                                       RHONDA VINCENT
          PERSONAL INJURY                    FAX NO. (214) 754-7115                     LORI G. MOORE
         •CERTIFIED PUBLIC                 www.shawlawoffice.com                       APRILS. SUMNER
            ACCOUNTANT


County Court at Law No. 1                                 July 7, 2009
509 Main Street                                           VIA HAND DELIVERY
Records Building                                          ---Phone (214/653-7556)---
Dallas, TX 75202

RE:         Cause No, CC-09-05232-A;
            VSDH Vaquero Venture, Ltd. v. Ken Gross and Betsy Gross

Madam:

Enclosed via hand delivery is the following:

1)          Van Shaw's Petition in Intervention.

Please file the same with the Court's records and return a file-marked copy to the undersigned. By
copy of this letter, a true and correct copy of the above instrument was this date forwarded to all
counsel of record.

Further, please prepare and return citations for service to be obtained on the following Defendants:

            Defendant, KEN GROSS, at 2004 White Wing Cove, Westlake, Texas; and
            Defendant, BETSY GROSS, at 2004 White Wing Cove, Westlake, Texas.

Also, enclosed is a check in the amount of Forty-Three Dollars ($43.00) for your filing ($35.00) and
issuance ($8.00) issuance fees.

Thank you for your ·ssistance.

Yours very tru ,



Van Shaw
VS/Im
Enclosure - hand delivery
VS. ltr2Ct. Pet. lnterv. VS
TAB 3
                                                                        --
                                            CAUSE NO. CC-09-05232-A                           ...
                                                                                             ·~




VSDH VAQUERO VENTURE, LTD.                           §
                                                     §
v.                                                   §         AT LAW NUMBER I
                                                     §                            n.
KEN GROSS and BETSY GROSS                            §         DALLAS COUNTY,   TE~s1-   .


                           DOUG HICKOK'S PETITION IN INTERVENTION

TO THE HONORABLE JUDGE OF SAID COURT:

       Comes now Intervenor, DOUG HICKOK, and files this his Petition in Intervention and
would respectfully show unto the Court as follows:

                                                         I.

                               DISCOVERY CONTROL PLAN I PARTIES

        Discovery is intended to be conducted under Discovery Control Plan Level 2 as set forth
in the Texas Rules of Civil Procedure.
             Intervenor is an individual.

             Plaintiff is a Texas limited partnership.

      Defendant, KEN GROSS, is an individual who may be served with process at 2004 White
Wing Cove, Westlake, Texas.

      Defendant, BETSY GROSS, is an individual who may be served with process at 2004
White Wing Cove, Westlake, Texas.

                                                         II.

                                                    VENUE

      Venue is proper in Dallas County, Texas pursuant to Section 15.002 of the Civil Practice &
Remedies Code.




DOUG HICKOK'S PETITION IN INTERVENTION - Page I
Pi.;t_Jntcrvention
                                                  III.

                           INTERVENOR'S CAUSE(S) OF ACTION

       Defendants have made claims of indemnity on Intervenor that are not accurate.


                                                  IV.

                                          NEGLIGENCE

        The occurrence made the basis of this lawsuit referred to above and Intervenor's resulting
damages were proximately caused by the negligent conduct of the Defendants. Said actions
constituted negligence which proximately caused the occurrence made the basis of this action and
Intervenor's damages in an amount in excess of the minimum jurisdictional limits of the Court.


                                                  v.
                      PREJUDGMENT/POST-JUDGMENT INTEREST

        Intervenor would further show the Court that many of his damages may be determined by
known standards of value and accepted rules of interest as damages from the date of loss and/or the
date such damages can be determined prior to judgment, or as the Court otherwise directs,
calculated at the legal rate, or as otherwise set by law.


                                                  VI.

                                  ALTERNATIVE PLEADING

       Plaintiff incorporates by reference and re-alleges all preceding sections of this Petition and
would further show that all pleadings herein, if deemed inconsistent, are made and should be
construed in accordance with Rule 48 of the TEXAS RULES OF CIVIL PROCEDURE.


      WHEREFORE, PREMISES CONSIDERED, Intervenor asks upon final hearing, he recover
judgment for:

        I.     Actual damages in an amount in excess of the minimum jurisdictional limits of the
               Court;

       2.      Pre-judgment interest and post-judgment interest at the maximum legal
               amount allowed by law;

DOUG HICKOK'S PETITION IN INTERVENTION - Page 2
Pet.lnteivention
       3.       Court costs; and

        4.     Such other and further relief, both at law and in equity, to which Intervenor may be
               justly entitled, both in law and in equity.



                                                   Respectfully submitted




                                                   EV AN LANE (VAN) SHAW
                                                   State Bar No. 18140500
                                                   LAW OFFICES OF VAN SHAW
                                                   2723 Fairmount Street
                                                   Dallas, Texas 75201
                                                   (214) 754-7110
                                                   FAX NO. (214) 754-7115

                                                   ATTORNEY FOR PLAINTIFF




DO!JG HICKOK'S PETITION IN INTERVENTION - Page 3
Pet Intervention
                                              LAW OFFICES
                                                      Q~,,    ,.,.
                                                VAN    SHAW ,
                                              ATIORNEYS AT'LAW            - - \l
             VAN SHAW•                                                                 DANIEL K. HAGOOD
           JANET R. RANDLE                     2723 FAIRMOUNT· '              '          OF COUNSEL
                                             DALLAS, TEXAS 75201
                                                                                   CERTIFIED PARALEGALS
       •BOARD CERTIFIED IN                       (214) 754-7110
                                                                                     RHONDA VINCENT
         PERSONAL INJURY                     FAX NO. (214) 754-7115                     LORI G. MOORE
        • CERTIFIED PUBLIC                 www.shawlawoffice.com                       APRILS. SUMNER
           ACCOUNTANT


County Court at Law No. I                                 July 7, 2009
509 Main Street                                           VIA HAND DELIVERY
Records Building                                          ---Phone (214/653-7556)---
Dallas, TX 75202

RE:         Cause No. CC-09-05232-A;
            VSDH Vaquero Venture, Ltd. v. Ken Gross and Betsy Gross

Madam:

Enclosed via hand delivery is the following:

1)          Doug Hickok's Petition in Intervention.

Please file the same with the Court's records and return a file-marked copy to the undersigned. By
copy of this letter, a true and correct copy of the above instrument was this date forwarded to all
counsel of record.

Further, please prepare and return citations for service to be obtained on the following Defendants:

            Defendant, KEN GROSS, at 2004 White Wing Cove, Westlake, Texas; and
            Defendant, BETSY GROSS, at 2004 White Wing Cove, Westlake, Texas.

Also, enclosed is a check in the amount of Forty-Three Dollars ($43.00) for your filing ($35.00) and
issuance ($8.00) issuance fees.




                 1
Thank you for your .,Ssistance.


y"""''"

Van Shaw
VS/Im
Enclosure - hand delivery
\.'S.ltr2Ct. Pet.lntcrv. VS
TAB 4
                                   CAUSE NO. CC-09-05232-A
                                                                                         P,'i 3: 39
VSDH VAQUERO VENTURE, LTD.                     §         IN THE COUNTY COURT
                                               §
       Plaintiff                               §                         !1i"-...
                                               §
V.                                             §
                                               §
KEN GROSS and BETSY GROSS                      §         ATLAWNUMBER I
                                               §
       Defendants                              §
                                               §
v.                                             §
                                               §
EVAN L. SHAW and DOUGLAS M.                    §
HICKOK                                         §
                                               §
       Intervenors                             §         DALLASCOUNTY,TEXAS


                           ORIGINAL ANSWER TO
               DEFENDANTS/COUNTER-PLAINTIFFS' COUNTERCLAIM

TO THE HONORABLE JUDGE OF SAID COURT:

        Come now the Plaintifti'Counter-Defendant, VSDH VAQUERO VENTURE, LTD.,
Intervenor/Counter-Defendant EVAN L. SHAW and Intervenor/Counter-Defendant DOUGLAS
M. HICKOK, jointly and hereinafter referred to as "Counter-Defendants" and file this their Original
Answer to Defendants/Counter-Plaintiff's Counterclaim and in support thereof would respectfully
show the Court as follows:

                                                   I.

        The Counter-Defendants enter a general denial and demand a trial by jury of every material
issue of fact in this lawsuit.


                                                   II.

        Counter-Defendants would show the Court that there is a defect in the parties in that
DOUGLAS M. HICKOK and EVAN L. SHAW are not proper Counter-Defendants in this cause of
action.



COUNTER-DEFENDANTS' ORIGINAL ANSWER - Page I
Ans.Cclaim
                                               III.

        Further answering, Counter-Defendants would show the Court that there is a defect in the
parties in that Counter-Defendants DOUGLAS M. HICKOK and EV AN L. SHAW did not
individually execute the contract in issue.


                                               IV.

         Further answering, Counter-Defendant DOUGLAS M. HICKOK denies executing any
written agreement made the basis of this suit in his individual capacity.


                                                v.
       Further answering, Counter-Defendant EV AN L. SHAW denies executing any written
agreement made the basis of this suit in his individual capacity.


                                               VI.

       Further answering, Counter-Defendants assert Counter-Plaintiffs failed to comply with
conditions precedent.


                                               VII.

       Further answering, Counter-Defendants assert that Counter-Plaintiffs are estopped from
and have waived any right for making a claim and/or for recovery herein.


                                               VIII.

         The Counter-Defendants adopt by reference all defenses and affirmative defenses set forth
in their Original Petition and any subsequent petition filed herein.


                                               IX.

        Further answering, Counter-Defendants would show that Counter-Plaintiffs' claims for
declaratory judgment are not proper as a counter petition.




COUNTER-DEFENDANTS' ORIGINAL ANSWER - Page 2
Ans.Cclaim
                                                x.
                                  ALTERNATIVE PLEADING

        All defenses herein, if inconsistent, are made pursuant to Rule 48 of the Texas Rules of
Civil Procedure.



         WHEREFORE, PREMISES CONSIDERED, Counter-Defendants pray that Counter-
Plaintiffs take nothing by reason of their suit and Counter-Defendants go hence without day and
with their costs in this behalf expended and for such other and further relief to which Counter-
Defendants may be justly entitled, both in law and in equity.


                                               Respectfully subm//.



                                               EVAN LANE ('I AN) SHAW
                                               BarCardNo.18140500
                                               LAW OFFICES OF VAN SHAW
                                               2723 Fairmount Street
                                               Dallas, Texas 75201
                                               (214) 754-7110
                                               FAX NO. (214) 754-7115

                                               ATTORNEY FOR PLAINTIFF/
                                               INTERVENORS/COUNTER-DEFENDANTS


                                   CERTIFICATE OF SERVICE

        The undersigned certifies that a copy of the foregoing instrument was served upon the
attorney) record of all parties to the above cause in accordance ~th the Rules of Civil Procedure,
on this       day of October, 2009.                             /



                                               VAN SHAW




COUNTER-DEFENDANTS' ORIGINAL ANSWER - Page 3
Ans.Cclaim
. I
  I
                                                 VERIFICATION

       STATE OF TEXAS                  )
                                       )
       COUNTY OF DALLAS                )

             BEFORE ME, the undersigned Notary Public, on this day personally appeared DOUGLAS
      M. HICKOK, who being by me duly sworn on his oath deposed and said that he is over 21 years of
      age, of sound mind and capable of making this Affidavit; that he is a Counter-Defendant in the
      above-entitled and numbered cause; that he has read the above and foregoing Counter-Defendants'
      Original Answer, and that every statement contained in Paragraphs II, ID and N is within his
      personal knowledge and is true and correct.


I
1             SUBSCRIBED AND SWORN TO BEFORE ME on the---·
      certify which witness my hand and official seal. (



                                                         s
      My commission expires     !Vl.111Jif 9
                                                        ,~''"Nt-. JENNIFER LEE SATTERAELD
                                                        {*i       . i-}   MY COMM1SS10N EXPIRES
                                                        ~ .m,.W
                                                            •••• ~'·'     .    May 7, 2010




      (;OIJNTER-DEfENDANTS' ORIGINAi, ANSWER -Page 4
      Ans.Cclaim
                                         VERIFICATION

STATE OF TEXAS                      )
                                    )
COUNTY OF DALLAS                    )

       BEFORE ME, the undersigned Notary Public, on this day personally appeared EVAN L.
SHAW, who being by me duly sworn on his oath deposed and said that he is over 21 years of age,
of sound mind and capable of making this Affidavit; that he is a Counter-Defendant in the
above-entitled and numbered cause; that he has read the above and foregoing Counter-Defendants'
Original Answer and Jury Demand; and that every statement contained in Paragraphs II, III and V is
within his personal knowledge and is true and correct.



                                                    EVANL.SHA~     ~~
        SUBSCRIBED AND SWORN TO BEFORE ME on the                   J     day of October, 2009, to
certify which witness my hand and official seal.        .~!"\\\;~~
                                                                \J, 0\~,

     ,r;"'"'~     LORI G. MOORE
    f~71~NotaryPubllc,Stateoflexas
                                                        X' ~·
                                                    Notary Pub! · and for the
    i*      t..I My Commlslton Expires              State of Texas
    ~~fa. ~"I        May 23, 2012
       '''""""'
M. commission expiresS \.1.? \ '"J>i\r




COUNTER-DEFENDANTS' ORIGINAL ANSWER· Page 5
Ans.Cclaim
                                                                            : (,'f ',·



                                           LAW OFFICES
                                               OF                   2009 ocr -s
                                            VAN SHAW                                     Pii 3: 39
                                           ATTORNEYS AT LAW
          VAN SHAW•                                                                      DANIEL :K''.-;HAGOOD
        JANET R. RANDLE

      • BOARD CERTIFIED IN
                                            2723 FAIRMOUNT
                                          DALLAS, TEXAS 75201
                                              (214) 754-7110
                                                                        -   ·--.   ·--
                                                                                           OF COUNSEL

                                                                                '1: · ,~·eERTlF_IED
                                                                                                 PARALEGALS
                                                                                          RHONDA VINCENT
         PERSONAL INJURY                  FAX NO. (214) 754-7115                           LORI G. MOORE
        •CERTIFIED PUBLIC                www.shawlawoffice.com                            APRILS. SUMNER
           ACCOUNTANT



County Court at Law No. 1                              October 5, 2009
509 Main Street                                        VIA HAND DELIVERY
Records Building                                       ---Phone (214/653-7556)---
Dallas, TX 75202

RE:      Cause No. CC-09-05232-A;
         VSDH Vaquero Venture, Ltd. v. Ken Gross and Betsy Gross

Madam:

Enclosed via hand delivery is the following:

I)       Original Answer to Defendants/Counter-Plaintiffs' Counterclaim.

Please file the same with the Court's records and return a file-marked copy to the undersigned.

By copy of this letter, a true and correct copy of the above instrument was this date forwarded to all
counsel of record.

Thank you for y        fir assistance.



Van Shaw
VS/Im
Enclosure - hand delivery

cc:      See attached Service List.




VS.ltr2Ct.Ans2Cclaim
                                  SERVICE LIST


Mr. R. Brent Cooper                       Via Facsimile (2141712-9540)
Ms. Jana Starling Reist                   ----Phone (214/712-9500)---
900 Jackson Street, Suite I 00
Dallas, Texas 75202

       Attorney for Defendants Kenneth P. Gross and Betsy L. Gross

********************************

Van Shaw represents PlaintiffVSDH VAQUERO VENTURE, LTD, Intervenor, DOUG
HICKOK and Intervenor, VAN SHAW
TAB 5
                             -                                        -
                                   CAUSE NO. CC-09-05232-A

VSDH VAQUERO VENTURE, LTD.,                     §
     Plaintiffs/Counter-Defendant,              §
                                                §
v.                                              §
                                                                                                       . I"
                                                §
KEN GROSS and BETSY GROSS
    Defendants/Counter-Plaintiffs,
                                                §
                                                §                            ATLA~
v.
                                                §                                             ~   ..   .
                                                §
                                                §
EVAN L. SHAW and DOUGLAS M.                     §
HICKOK                                          §
     lntervenors/Counter-Defendants.            §                    DALLAS COUNTY, TEXAS
                                                §

 KEN GROSS' AND BETSY GROSS' FIRST AMENDED COUNTER-CLAIM AGAINST
  VSDH VAQUERO VENTURE, LTD., EV AN L. SHAW AND DOUGLAS M. HICKOK
  AND ORIGINAL THIRD-PARTY PETITION AGAINST VSDH VAQUERO HOMES,
                      INC. AND VSDH HOMES, INC.

TO THE HONORABLE JUDGE OF SAID COURT:

         COMES NOW, Kenneth P. Gross and Betsy L. Gross, Defendants/Counter-

Plaintiffs/Third-Party Plaintiffs (collectively referred to as "the Grosses"), and hereby files their

First Amended Petition Against VSDH Vaquero Venture, Ltd., Evan L. Shaw and Douglas M.

Hickock (collectively referred to as "Counter-Defendants") and Original Third-Party Petition

Against VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. (collectively referred to as "Third-

Party Defendants"), and for such would respectfully show the Court as follows:

                                            I.
                                 DISCOVERY CONTROL PLAN

             I.   The parties have entered into an Agreed Level 3 Discovery Control Plan pursuant

to Tex. R. Civ. P. 190.4.




COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION                                                                Page 1
D/758360.I
                                           II.
                                  PARTIES AND SERVICE

         2.   Plaintiff/Counter-Defendant VSDH Vaquero Venture, Ltd. is a Texas Limited

Partnership who is represented by Evan L. Shaw in this action.

         3.   Defendant/Counter-Plaintiff/Third-Party Plaintiff Kenneth P. Gross 1s an

individual who has appeared in this action and is represented by the undersigned counsel.

         4.   Defendant/Counter-Plaintiff/Third-Party Plaintiff Betsy L. Gross is an individual

who has appeared in this action and is represented by the undersigned counsel.

         5.    Intervenor/Counter-Defendant Douglas M. Hickok ("Hickok") is a Texas resident

and may be served with process by serving his last known address at 5305 Village Creek Drive,

Plano, Collin County, Texas 75093.

         6.    Intervenor/Counter-Defendant Evan L. Shaw ("Shaw") is a Texas resident and

may be served with process by serving his last known address at 4646 Cherokee Trail, Dallas,

Dallas County, Texas 75209.

         7.    Third-Party Defendant VSDH Vaquero Homes, Inc. is a Texas General

Partnership whose principal place of business is at 5305 Village Creek, Plano, Texas 75093. It

may be served with process by serving its President, Douglas M. Hickok at 5305 Village Creek

Drive, Plano, Collin County, Texas 75093.

         8.    Third-Party Defendant VSDH Homes, Inc. is a Texas General Partnership whose

principal place of business is at 5305 Village Creek, Plano, Texas 75093. It may be served with

process by serving its Registered Agent and President, Douglas M. Hickok at 5305 Village Creek

Drive, Plano, Collin County, Texas 75093.




COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION                                                                Page2
D/758360.J
                               -
                                             III.
                                   JURISDICTION AND VENUE

             9.    The subject matter in controversy is within the jurisdiction limits of this Court.

The Court has jurisdiction over VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. because

they are Texas general partnerships.

         10.       Venue is proper with regard to this third-party action under section 15.062 of the

TEXAS CIVIL PRACTICE & REMEDIES CODE, as the transaction giving rise to this third-party action

arises out of the same transaction, occurrence, or series of actions or occurrences.

                                                  IV.
                                                FACTS

         11.       On or about June 4, 2006, the Grosses entered into a New Home Contract

("Contract"), promulgated by the Texas Real Estate Commission, with Counter-Defendants and

Third-Party Defendants for the purchase of 2004 White Wing Cove, Westlake, Texas 76262

("the Property"), in the amount of $2,851,871.00. (A copy of the Contract has been attached

hereto as Exhibit "l," and is incorporate herein by reference for all pertinent purposes).

             12.   The Grosses purchased the Property at the full listed price of $2,851,871.00, even

though the Property had been listed for two years, due to the fact that Counter-Defendants agreed

to enter into a "Buy Back Option" with the Grosses.

         13.       According to paragraph 1 ("Buy Back Option") of Addendum A of the Contract,

VSDH Vaquero Venture, Ltd. granted to the Grosses, as Buyers of the Property, the "the option .

. . to put the Property to Seller [VSDH Vaquero Venture, Ltd.] (i.e. require Seller to repurchase

the Property for the original "Sales Price" of $2,851,871.00) on September 1, 2009, or such

earlier date as may be mutually agreed between Buyer and Seller . . .. " See Addendum A to

Exhibit I.


COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION                                                                Page 3
D/758360.1
                                                                     -
         14.       Hickok and Shaw are limited partners of VSDH Vaquero Venture, Ltd. and

participated and controlled Counter-Defendants and Third-Party Defendants sell of the Property

to the Grosses and benefitted from the sell to the Grosses.

           15.     Further, according to paragraph 4 of Addendum A, Hickok and Shaw both agreed

to be personally responsible, jointly and severally, in the event VSDH Vaquero Venture, Ltd.

does not fully perform under the terms of the Buy Back Option.

           16.     Under the signature line of the Contract, VSDH Homes, Inc. is listed as the

general partner ofVSDH Vaquero Venture, Ltd. However, according to the Texas Secretary of

State's office, VSDH Vaquero Homes, Inc. is listed as VSDH Vaquero Venture, Ltd.'s general

partner.

           17.     In accordance with the terms of the Buy Back Option, the Grosses exercised the

Buy Back Option by delivering written notice to Shaw and Hickok before May 1, 2009 of the

Grosses' intent to sell the Property back to Counter-Defendants and Third-Party Defendants.

           18.     However, Shaw and Hickok communicated to the Grosses that Counter-

Defendants and Third-Party Defendants do not intend to buy the Property back and perform their

contractual obligations as required under Addendum A to the Contract. Counter-Defendants and

Third-Party Defendants failed to purchase the property back.

             19.   The Grosses therefore seek construction of the Contract, including Addendum A,

to determine whether or not Counter-Defendants and Third-Party Defendants breached the

Contract by refusing and failing to buy the Property back from the Grosses pursuant to the

Contract for the original sales price of $2,851.871.00.

           20.     In an effort to mitigate their damages and avoid foreclosure of the home, the

Grosses sold their home for $2,415,600.


COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION                                                                Page 4
D/758360.I
                            -                                         -
                                                v.
                                 DECLARATORY JUDGMENT
         21.   All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section.

         22.   This is an action for declaratory judgment pursuant to the Texas Declaratory

Judgment Act, Ch. 37.001 et. seq. of the TEX. CIV. PRAC. & REM. CODE, for the purpose of

determining an actionable and justiciable controversy between the parties, as hereinafter more

fully appears. The controversy involves Counter-Defendants' and Third-Party Defendants' duty

to perform their obligations arising under the "Buy Back Option," Addendum A, to the Contract.

         23.   Based upon the clear terms of Addendum A to the Contract (Exhibit 1), Counter-

Defendants and Third-Party Defendants were obligated to buy the Property back from the

Grosses pursuant to the terms of the Contract for the original sales price of $2,851.871.00.

         24.    Accordingly, the Grosses seek a declaration from this Court, as follows:

                I.     VSDH Vaquero Venture, Ltd. was obligated to buy the Property back
                       from Kenneth P. Gross and Betsy L. Gross on or before September 1,
                       2009 for the original sales price of $2,851,871.00

                2.     In the event VSDH Vaquero Venture, Ltd. failed to timely buy the
                       Property back from Kenneth P. Gross and Betsy L. Gross, Douglas M.
                       Hickok and Evan L. Shaw were personally responsible, jointly and
                       severally, to buy the Property back on or before September 1, 2009 for the
                       original sales price of $2,851,871.00.

                                                VI.
                                   BREACH OF CONTRACT
         25.    All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section.

         26.    As stated above, the Grosses entered into a valid and enforceable contract with

Counter-Defendants and Third-Party Defendants. See Exhibit 1. The Grosses have fulfilled all

requirements, statutorily and in accordance with the terms of the Buy Back Option, by delivering
COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION                                                                Page 5
D/758360.I
                            -
written notice to Hickok and Shaw before May 1, 2009 of the Grosses' intent to sell the Property

back to Counter-Defendants and Third-Party Defendants. Counter-Defendants and Third-Party

Defendants have materially breached the Contract in that they have repudiated the contract and

failed to proceed with the purchase of the Property.          Counter-Defendants' and Third-Party

Defendants' breach has proximately caused the Grosses' damages.

         27.    The Grosses request that a judgment be entered against Counter-Defendants and

Third-Party Defendants for actual damages.        As a direct and proximate result of Counter-

Defendants' and Third-Party Defendants' failure to perform under the Contract, the Grosses have

been damaged in an amount in excess of the jurisdictional limits of the Court, for which they

seeks appropriate judicial relief.

                                                VII.
                        FRAUD IN A REAL ESTATE TRANSACTION

         28.    All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section.

         29.    The Grosses will show that Counter-Defendants' and Third-Party Defendants'

conduct constitutes fraud in a real estate transaction as defined by Section 27.01 of the TEXAS

BUSINESS & COMMERCE CODE. Counter-Defendants' and Third-Party Defendants' made a false

representation that they would buy the property back pursuant to the Buy Back Option in order to

induce the Grosses to enter into the Contract.         The Grosses entered into the Contract and

purchased the Property at the full listed price of $2,851,871.00, even though the Property had

been listed for two years, due to the fact that Counter-Defendants and Third-Party Defendants

made the false representation that they would buy the property back pursuant to the "Buy Back

Option." The Grosses' reliance directly and proximately caused them substantial injury, as set

out above, for which they seek appropriate judicial relief.

COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION                                                                Page 6
D/758360.l
                             -                                        -
         A.      Attorneys' Fees

         30.     The Grosses have retained the law firm of Cooper & Scully, P.C. to represent

them in this action and have agreed to pay the firm reasonable and necessary attorneys' fees.

         31.     The Grosses are entitled to recover reasonable and necessary attorney fees that are

equitable and just under TEXAS CIVIL PRACTICE & REMEDIES CODE § 37.009 because this is a

suit for declaratory judgment, under TEXAS CIVIL PRACTICE & REMEDIES CODE§ 38.001 because

it is a suit for breach of a written contract, and under TEXAS BUSINESS & COMMERCE CODE

§27.0l(e) because this is an suit for statutory fraud. All conditions precedent to the collection of

attorneys' fees have been satisfied.

         B.      Conditions Precedent

         32.     All conditions precedent to the Grosses claims for relief have been performed or

have occurred.

         WHEREFORE, PREMISES CONSIDERED, Defendants Kenneth P. Gross and Betsy

L. Gross pray that their counterclaims against VSDH Vaquero Venture, Ltd., Shaw and Hickok

and third third-party claims against VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. be

granted; that upon final hearing of this matter, a declaratory judgment is entered as enumerated

above; that the Grosses have and recover damages in an amount within the jurisdictional limits

of this Court; pre- and post-judgment interest at the highest lawful rate; attorneys' fees and court

costs; exemplary damages; and such other and further relief, whether special or general, to which

the Grosses may show themselves justly entitled.




COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION                                                                Page 7
01758360.l
                                            Respectfully submitted,

                                            COOPER & SCULLY, P.C.


                                            By~d!Jd   OBRENT COOPER
                                                    State Bar No. 04783250
                                                    JANA STARLING REIST
                                                    State Bar No. 24056890

                                            Founders Square
                                            900 Jackson Street, Suite 100
                                            Dallas, Texas 75202
                                            Telephone: (214) 712-9500
                                            Facsimile: (214) 712-9540

                                            ATTORNEYS FOR DEFENDANTS
                                            KEN GROSS AND BETSY GROSS




                                CERTIFICATE OF SERVICE

       The undersigned certifies that a true and correct copy of the foregoing document was
forwarded to all counsel of record herein via facsimile, on this the 12'h day of February 2010 as
follows:

         Evan Lane (Van) Shaw (via facsimile and CMRRR)
         Law Offices of Van Shaw
         2723 Fairmount Street
         Dallas, Texas 75201
         Attorney for Counter-Defendants




COUNTER-PLAINTIFFS' FIRST AMENDED COUNTER-CLAIMS AND ORIGINAL THIRD PARTY
PETITION                                                                Page 8
D/758360.1
                                 C.OOpe                                Scully
                                                                 A Prn[c.1.1run11i Cm/1mc1!wn




                                                                                                                        .j •• '   ;   ~~ ~   l
JANA   S. REIST                                                                                       .....·.. i'      214-i1:2.%11
                                                                                                      'kna'.R!i:iist@i:o~P'ersCuilY.¥m



                                                 February 12, 2010


VIA CERTIFIED MAIL

John Warren
County Court Clerk
300 Records Bldg.
509 Main Street
Dallas, Texas 75202

        Re:         VSDH Vaquero Venture, Ltd. v. Kenneth P. Gross and Betsy L. Gross, Cause No.
                    CC-09-05232-A, on file in the County Court at Law No. 1, Dallas County, Texas
                    OurFileNo.: 1903-17168

Dear Mr. Warren:

       Enclosed please find an original and one (I) copy of Ken Gross' and Betsy Gross' First
Amended Counter-Claim Against VSDH Vaquero Venture, Ltd., Evan L. Shaw and Douglas M
Hickok and Original Third-Party Petition Against VSDH Vaquero Homes, Inc. and VSDH
Homes, Inc. for filing in the above referenced matter. A check in the amount of $35.00 is
enclosed for filing fee. Please return via the enclosed self-stamped envelope a filed stamped
copy of the Petition for our file. Plaintiffs counsel will receive a copy of this document via
facsimile and certified mail.

          If you have any questions, do not hesitate to contact the undersigned.

                                                                     Sincerely yours,            g   ~



                                                                     Jr
                                Founders Square 900 Jackson Street, Suite 100 Dallas, TX 75202
                                        Telephone (214) 712-9500 Fax (214) 712-9540
                                                    V-'WW.cooperscully.com

Houston Office (713) 236-6800                 San Francisco Office (415) 956-9700                    Sherman Office (903) 813-3900
01759162.1
February 12, 2010
Page 2


JSR/tsh
Enclosures

Cc:    Evan Lane (Van) Shaw (via facsimile 214.754. 7115 and certified mail)
       Law Offices of Van Shaw
       2723 Fairmount Street
       Dallas, Texas 75201
       Attorney for Plaintiff




D/759162.l
TAB 6
                                  CAUSE NO. CC-09-05232-A
                                                                   70ln W?. ?q PH ~:        08
VSDH VAQUERO VENTURE, LTD.                    §           IN THE comrrt'b'UR.T
                                              §
        Plaintiff                             §
                                              §
v.                                            §
                                              §
KEN GROSS and BETSY GROSS                     §           ATLAWNUMBER I
                                              §
        Defendants                            §
                                              §
v.                                            §
                                              §
EV AN L. SHAW and DOUGLAS M.                  §
HICKOK                                        §
                                              §
        Intervenors                           §           DALLAS COUNTY, TEXAS


                           FIRST AMENDED ANSWER TO
                  DEFENDANTS/COUNTER-PLAINTIFFS' COUNTERCLAIM

TO THE HONORABLE JUDGE OF SAID COURT:                                {' ·' ~~~~,.,~
                                                                     '-'··",._j   '   ·''
                                                                                       -    ~
                                                                                            'U
        Come now the Plaintiff/Counter-Defendant, VSDH VAQUERO VENtd , LTD.,
Intervenor/Counter-Defendant EVAN L. SHAW and Intervenor/Counter-Defendant DOUGLAS
M. HICKOK, jointly and hereinafter referred to as "Counter-Defendants" and file this their First
Amended Original Answer to Defendants/Counter-Plaintiffs Counterclaim and in support thereof
would respectfully show the Court as follows:

                                                    I.

        The Counter-Defendants enter a general denial and demand a trial by jury of every material
issue of fact in this lawsuit.

                                                    II.

        Counter-Defendants would show the Court that there is a defect in the parties in that
DOUGLAS M. HICKOK and EVAN L. SHAW are not proper Counter-Defendants in this cause of
action and are not liable for the claims made the basis of this suit.




COUNTER-DEFENDANTS' FIRST AMENDED ANSWER - Page I
Ans.Cclaim.Amdl
                                                  III.

        Further answering, Counter-Defendants would show the Court that there is a defect in the
parties in that Counter-Defendants DOUGLAS M. HICKOK and EV AN L. SHAW did not
individually execute the contract in issue and are not liable for the claims made the basis of this
suit.


                                                  IV.

         Further answering, Counter-Defendant DOUGLAS M. HICKOK denies executing any
written agreement made the basis of this suit in his individual capacity.


                                                   v.
       Further answering, Counter-Defendant EVAN L. SHAW denies executing any written
agreement made the basis of this suit in his individual capacity.


                                                  VI.

       Further answering, Counter-Defendants deny Counter-Plaintiffs' allegation that all
conditions precedent have been performed or have occurred, in that the following conditions
precedent have not been performed or have not occurred:

         I.       Counter-Defendants EVAN L. SHAW and DOUGLAS M. HICKOK have not
                  been established to have executed the contract in issue; and deny that said contract
                  was executed by these individual defendants;

        2.        Counter-Plaintiffs KEN GROSS and BETSY GROSS did not obtain written and
                  required approval for improvements to the property in issue; and

         3.       Counter-Plaintiffs KEN GROSS and BETSY GROSS have not established any
                  exception to the statute of frauds.

                                                  VII.

       Further answering, Counter-Defendants assert that Counter-Plaintiffs are estopped from
and have waived any right for making a claim and/or for recovery herein.




COUNTER-DEFENDANfS' FffiST AMENDED ANSWER - Page 2
Ans.Cc\aim.Amdl
                                               VIII.

         The Counter-Defendants adopt by reference all defenses and affirmative defenses set forth
in their Original Petition and any subsequent petition filed herein.


                                                IX.

        Further answering, Counter-Defendants would show that Counter-Plaintiffs' claims for
declaratory judgment are not proper as a counter petition.


                                                    x.
        Further answering, Counter-Defendants would show that Counter-Defendants are not liable
to Counter-Plaintiffs because the agreement does not comply with the requirements of the statute of
frauds.


                                                XI.

       Further answering, Counter-Defendants would show that Counter-Defendants are not liable
to Counter-Plaintiffs because Counter-Plaintiffs failed to mitigate their damages.


                                                XII.

                                  ALTERNATIVE PLEADING

        All defenses herein, if inconsistent, are made pursuant to Rule 48 of the Texas Rules of
Civil Procedure.



        WHEREFORE, PREMISES CONSIDERED, Counter-Defendants pray that Counter-
Plaintiffs take nothing by reason of their suit and Counter-Defendants go hence without day and
with their costs in this behalf expended and for such other and further relief to which Counter-
Defendants may be justly entitled, both in law and in equity.




COUNTER-DEFENDANTS' FIRST AMENDED ANSWER - Page 3
Ans.Cclaim.Amdl
                                              Respectfully submitted,




                                              EVAN LANE (VAN) SHAW
                                              Bar Card No. 18140500
                                              LAW OFFICES OF VAN SHAW
                                              2723 Fairmount Street
                                              Dallas, Texas 75201
                                              (214) 754-7110
                                              FAX NO. (214) 754-7115
                                              ATTORNEY FOR PLAINTIFF/
                                              INTERVENORS/COUNTER-DEFENDANTS


                                  CERTIFICATE OF SERVICE
                                                                        /

        The undersigned certifies that a copy of the foregoing ins   nt was served upon the
attomey"Jford of all parties to the above cause in accordance wi the Rules of Civil Procedure,
on this       day of March, 2010.
      r



                                              VAN SHAW




COUNTER-DEFENDANTS' FIRST AMENDED ANSWER - Page 4
Ans.Cclaim.Amdl
                                          VERIFICATION

STATE OF TEXAS                 )
                               )
COUNTY     OF~                 )

       BEFORE ME, the undersigned Notary Public, on this day personally appeared DOUGLAS
M. HICKOK, who being by me duly sworn on his oath deposed and said that he is over 21 years of
age, of sound mind and capable of making this Affidavit; that he is a Counter-Defendant in the
above-entitled and numbered cause; that he has read the above and foregoing Counter-Defendants'
First Amended Answer, and that every statement contained in Paragraphs II, III and IV is within his
personal knowledge and is true and correct.
                                                            L____ .
                                                     DOUGLAS M. HICKOK

        SUBSCRIBED AND SWORN TO BEFORE ME on the                       dle~
                                                                          day of March, 2010, to
certify which witness my hand and official seal.




                                      <



My commission    expires~D

                                                    El
                                                    ·"~,    JENNIFE!l LEE SATfERRELD
                                                       ~,    MY COMMISSION EXPIRES
                                                    iii •          May7,2010




COUNJER-DEFENDANJS' FIRST AMENDED ANSWER - Page 5
Ans.Cclaim.Amdl
                                                                  VERIFICATION

STATE OF TEXAS                                   )
                                                 )
COUNTY OF DALLAS                                 )

        BEFORE ME, the Wldersigned Notary Public, on this day personally appeared EVAN L.
SHAW, who being by me duly sworn on his oath deposed and said that he is over 21 years of age,
of soillld mind and capable of making this Affidavit; that he is a C Oilllter-Defendant int he
above-entitled and numbered cause; that he has read the above and foregoing Coilllter-Defendants'
First Amended Answer and Jury Demand; and that every statement contained in Paragraphs IT, III
and V is within his personal knowledge and is true and correct.



                                                                                            w
        SUBSCRIBED AND SWORN TO BEFORE ME on the                                        '.J._<'.\~y of March, 2010, to
certify which witness my hand and official seal.


          /;>~~""""''~~. LORI G. MOORE
          '*                    *'NolQIVPIJblk:. State al Texas           Notary Public i
          ~                     ;j My Ccmmlalon Expires
           '<.,;...............
                     °' ~               May 23, 2012                      State of Texas


My commission           expires~\ d-..~\ ~ \d--




COUNTER-DEFENDANTS' FIRST AMENDED ANSWER - Page 6
Ans.Cclaim.Amdl
                                           LAW OFFICES
                                               OF
                                            VAN SHAW                             2010 HAR 29 PH                 ~:   08
                                                                                  .., '''· ·        ....   1.   i\T LAW
                                           ATTORNEYS AT LAW
          VAN SHAW'                                                                 DANIEL K. HA'b'°ooD
        JANET R RANDLE                      2723 FAIRMOUNT                           OF _
                                                                                  SY _  COUNSEL
                                                                                          _ _ __
                                          DALLAS, TEXAS 75201
                                                                                 CERTIFIED P~fi!G!\l.S
      • BOARD CERTIFIED IN                    (214) 754-7110
                                                                                   RHONDA VINCENT
         PERSONAL INJURY                  FAX NO. (214) 754-7115                    LORI G. MOORE
        • CERTIFIED PUBLIC              www.shawlawoffice.com                        APRILS. SUMNER
           ACCOUNTANT



County Court at Law No. 1                              March 29, 2010
509 Main Street                                        VIA HAND DELIVERY
Records Building                                       ---Phone (214/653-7556)---
Dallas, TX 75202

RE:      Cause No. CC-09-05232-A;
         VSDH Vaquero Venture, Ltd. v. Ken Gross and Betsy Gross

Madam:

Enclosed via hand delivery is the following:

1)       First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim.

Please file the same with the Court's records and return a file-marked copy to the undersigned.

By copy of this letter, a true and correct copy of the above instrument was this date forwarded to all
counsel of record.

Thank you for your       sistance.

Yours very trul ,



Van Shaw
VS/Im
Enclosure - hand delivery

cc:      See attached Service List.




VS.ltr2Ct.Ans2Cclaim
..
'




                                       SERVICE LIST


     Mr. R. Brent Cooper                       FAX (214/712-9540)
     Ms. Jana Starling Reist                   =PH (214/712-9500) =
     COOPER & SCULLY                           brent.cooper@cooperscully.com
     900 Jackson Street, Suite I 00            jana.reist@cooperscully.com
     Dallas, Texas 75202

            Attorney for Defendants Kenneth P. Gross and Betsy L. Gross

     ********************************

     Van Shaw represents PlaintiffVSDH VAQUERO VENTURE, LTD, Intervenor, DOUG
     HICKOK, Intervenor, VAN SHAW and Third-Party Defendants VSDH VAQUERO
     HOMES, INC. and VSDH HOMES, INC.
TAB 7
. "\ \c
q\i?\ ~0
  ~VSDH VAQUERO VENTURE, LTD.
                                          CAUSE NO. cc-09-05232-A
                                                                                                               · ''· .·~x:,s
                                                     §         IN THE COUNTY co~~ 11PR                 30 PN 2: 59
                                                     §                           '-' i   " - ' .
     v.                                              §         AT LAW NUMBER I           ' " .. '' ,·.
                                                                                                      :~   ' ''' /, /"'",•
                                                                                                                      '       •1
                                                     §
     KEN GROSS and BETSY GROSS                       §         DALLAS COUNTY,~
                                                                                                   (J'.""L':":',in-:;------

                              PLAINTIFF'S FIRST-AMENDED PETITION

     TO THE HONORABLE JUDGE OF SAID COURT:

             Comes now Plaintiff, VSDH VAQUERO VENTURE, LTD., complaining of KEN
     GROSS and BETSY GROSS, hereinafter called Defendants, and for cause of action would
     respectfully show unto the Court the following:

                                                         I.
                                      DISCOVERY CONTROL PLAN

             Discovery is intended to be conducted under Discovery Control Plan Level 2 as set forth
     in the Texas Rules of Civil Procedure.

                                                         II.
                                                   PARTIES

             Plaintiff is a Texas limited partnership.

            Defendant, KEN GROSS, is an individual who has been previously served and has
     appeared by filing an answer in this lawsuit.

            Defendant, BETSY GROSS, is an individual who has been previously served and has
     appeared by filing an answer in this lawsuit.


                                                      III.
                                                    VENUE

           Venue is proper in Dallas County, Texas pursuant to Section 15.002 of the Civil Practice &
     Remedies Code.




     PLAINTIFF'S FIRST AMENDED PETITION - Page I
     Pet_lst-Amd.Doc
                                           IV.
                                    STATEMENT OF FACTS

        Upon information and belief, Plaintiff asserts the following Statement of Facts which, in
addition to other facts, support Plaintiff's causes of actions set out herein.

        In June of 2007, Plaintiff, VSDH VAQUERO VENTURE, LTD and Defendants entered
into a contract for the purchase of the property located at 2004 White Wing Cove, Westlake,
Texas. (the "Property"). See Exhibit 1. 1 A First Amendment to the contract on June 12, 2007
is attached at Exhibit 2.

         Subsequent to the purchase of the Property, Defendants breached the contract by
commencing construction and proceeding to make major improvements to the property without
first obtaining the consent of Plaintiff as required and thereafter made wrongful demands for
monies owed. Defendants also failed to timely comply with the contract's buy-back notice
provisions and thereafter sold the Property and incurred commissions and other costs that would
not have been incurred had the notice provisions and been complied with accompanied by a
timely triggered buy-back.

        As a result of Defendants' breach, Plaintiff has incurred attorneys' fees related to this
legal proceeding related to the contract.

                                                v.
                         CAUSES OF ACTION AS TO DEFENDANTS

                                         Breach of Contract

        Plaintiff would show that the foregoing allegations constitute breach of contract and said
breach has caused Plaintiff damage as a direct, proximate, producing cause and responsibility
thereof in an amount in excess of the minimum jurisdictional limits of this Court, including but not
limited to attorneys fees under the contract.


                                                VI.
                       PREJUDGMENT/POST-JUDGMENT INTEREST

        Plaintiff would further show the Court that many of its damages may be determined by
known standards of value and accepted rules of interest as damages from the date of loss and/or the
date such damages can be determined prior to judgment, or as the Court otherwise directs,
calculated at the legal rate, or as otherwise set by law.


1
 By attaching these documents as Exhibits 1 and 3 Plaintiff does not waive any
defenses to claims raised or to be raised by Defendants with respect to any
allegation made by Defendants/Counterclaimants regarding these documents.

PLAINTIFF'S FIRST AMENDED PETITION - Page 2
Pet_lst-Amd.Doc
                                           VII.
                                   ALTERNATIVE PLEADING

       Plaintiff incorporates by reference and re-alleges all preceding sections of this Petition and
would further show that all pleadings herein, if deemed inconsistent, are made and should be
construed in accordance with Rule 48 of the TEXAS RULES OF CIVIL PROCEDURE.


         WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that upon final
trial hereof, Plaintiff recovers judgment against the Defendants for the following:

        1.     Judgment against Defendants for actual damages including attorneys' fees;

        2.     Pre-judgment interest;

        3.     Post-judgment interest;

        4.      Court costs; and

        5.     Such other and further relief, both at law and in equity, to which Plaintiff may be
               justly entitled, both in law and in equity.




                                              EVAN        E(VAN)SHAW
                                              Stat ar No. 18140500
                                                   ETR.RANDLE
                                              State Bar No. 00792216
                                              LAW OFFICES OF VAN SHAW
                                              2723 Fairmount Street
                                              Dallas, Texas 75201
                                              (214) 754-7110
                                              FAX NO. (214) 754-7115

                                              ATTORNEY FOR PLAINTIFF




PLAINTIFF'S FIRST AMENDED PETITION - Page 3
Pet_lstwAmd.Doc
                                PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC)                                                            02-13-0B
                                                           NEW HOME CONTRACT
                                                            (Completed Construotlon)
                           NOTICE: Not For Use For Condominium Transactions. or Clos!ngs Ptlor to Completion of construction
 1. PARTIES:                                        VSDH vaquero venture Ltd                                                                        (Seller)
     agrees to sell and convey to Kenneth P. Gross and Betsy L. Gross
     _ _ _ _ _ _ (Buyer) and Buyer agrees to buy from Sellar the Property described below.
 2. PROPERTY: Lot                 11         , Block                                                   vaouero Residential
     Addition, City of              Westlake                    , County of                           Tarrant                            , Texas, known as
     2004 White Wing Cove                                                                         76262 (address/zip code), or as described on
     attached exhibit, together with: (I) Improvements, fixtures and all other property located thereon; and (ii) all rights,
     prtvileges and appurtenances thereto, Including but not limited to: permits, easements, and cooperative and
     assoctatlon memberships. All property sold by this contract Is called the "Property".
 3. SALES PRICE:
     A. Cash portion of Sales Price payable by Buyer at closing ................................................ $                       2. 851, 871. QO
     B. Sum of all financing described below (excluding any loan funding fee
         ormortgaga insurance premium) ..................................................................................... $ _ _ _ _ _ _ __
     C. Sates Price (Sum of A and B) ........................................................................................... $       2. 851, 871 00
4. FINANCING: The portion of Sales Price not payable In cash will be paid as follows: (Check applicable boxes below)
    0 A. THIRD PARTY FINANCING: One or more third party mortgage loans in the total amount of
            $                                    (excluding any loan funding fee or mortgage Insurance premium).
            (1) Property Approval: If the Property doss not satisfy the lenders' underwriting requirements for the loan(s),
                 this contract will terminate and the earnest money will be refunded to Buyer.
            [2) Financing Approval: (Check one box only)
                 0 (a) This contract Is subject to Buyer being approved for the financing described In the attached Third
                        Party Financing Condition Addendum.
                 O (b) This contract Is not subject to Buyer bein9 approved for financing and does not Involve FHA or VA
                        financing.
    0 B. ASSUMPTION: The assumption of the unpaid principal balance of one or more promissory notes described In
            lhe attached TREC Loan Assumption Addendum.
    0 C. SELLER FINANCING: A promissory note from Buyer to Seller of$                                                                                      ,
            secured by vendo(s and deed of trust !lens, and containing the terms and conditions described In the attached
            TREC Seller Financing Addendum. If an owner policy of title Insurance Is furnished, Buyer shall furnish Seller
            with a mortgagee policy of title insurance.                                                                                       ,.,
6, EARNEST MONEY: Upon execution of this contract by both parties, Buyer shall deposit$]_()_,_.,o.,o,,_,o,_,,'"'o"'o'--------'-
    as earnest money with                            Chicago Title company                                                           , as escrow agent, at
                                      6688 N. Central #560, Dallas. TX 75206
    (address). Buyer shall deposit additional earnest money of$                                                                  with escrow agent within
    ____ days after the effective date of this contract. If Buyer falls to deposit the earnest money as required by
    this contract, Buyer will be In default.
6. TITLE POLICY ANO SURVEY:
   A. TITLE POLICY: Seller shall furnish to Buyer at                      00 Seller's D Buyer's expense an owner policy of tttle
        Insurance (Title Polley) Issued by ~c.,h.,.i,,o,,a.,g"o'-"T-"'i-"t""l"e-"c,,om""'......_,__ _ _ _ _ _ _ _ _ _ _.,.-----,
        -----,--,------,---~--,.-----,-----,-- (Title Company) In the amount of
        the Sales Price, dated at or after closing, Insuring Buyer against loss under the provisions of the Title Polley,
        subject to the promulgated exclusions (Including existing building and 2oning ordinances) and the following
        exceptions:
        (1) Restrictive covenants common to the platted subdivision In which the Property is localed.
        (2) The standard printed exception for standby fees, taxes and assessments.
        (3) Liens created as part of the financing described In Paragraph 4.
        (4) Utility easements created by the dedication deed or plat of the subdivision In which the Property Is located.
        (5) Reservations or exceptions otherwise permllted by !hiS contract or as may be approved by Buyer In writing.
        (6) The standard printed exception as to marllal rights.
        (7) The standard printed exception as to waters, tidelands, beaches, streams, and related matters.
        (8) The standard printed exception es to discrepancies, conflicts, shortages in area or boundary !Ines,
            encroachments or protrusions, or overlapping Improvements. Buyer, at Buyers expense, may have the
            exception amended to read, 0 shorteges in area".
    B. COMMITMENT: Within 20 da s after the Title Company receives a copy of this contract, Seller shall furnish to
        B er a commitment for tit!             uranc Commitment an                                u e(s ex ense, le Ible co lss of restrictive




                                                                                                                                                    EXHIBIT
                                                                                                                                                "              "
                                                       2004 White W1ng Cove
Contract Concerning                                     Westlake, TX 7 62 62                                                 Page 2 of 9 02-13·08
                                                           (Address of Properly)

      covenants and documents evidencing exceptions In the Commitment (Exception Documents) other than the
      standard printed exceptions. Seller authorizes the Title Company to deliver the Commitment and Exception
      Documents to Buyer at Buyer's address shown tn Paragraph 21. If the Commitment and Exception Documents
      are not delivered to Buyer within the specified time, the time tor detlvery wlll be automatically extended up to 16
      days or the Closing Date, whichever Is earlier.
  C. SURVEY: The survey must be made by a registered professional land surveyor acceptable to the Title Company
      and any lender. (Check one box only)
     ll!I (1) Within               7            days after the effective date of this contract, Seller shall furnish to Buyer
              and Title Company Seller's existing survey of the Property and a Residential Real Property Affidavit
              promulgated by the Texas Department of Insurance (Affidavit). If the existing survey or Affidavit Is not
              acceptable to Title Company or Buyer's lender. Buyer shall obtain a new survey at D Sellers ll!I Buyer's
              expense no later than 3 days prior to Closing Date. If Saller falls to furnish the existing survey or Affidavit
              within the time prescribed, Buyer shall obtain a new survey at Sellers expense no later than 3 days prior
              to Closing Date.
     D (2) Within                            days after the effeot/ve dote of this contract, Buyer shall obtain a new survey
              at Buyers expense. Buyer Is deemed to receive the survey on the date of actual receipt or the date
              specified in this paragraph, whichever Is earlier.
     D (3) Within                               days after the effective date of this contract, Seller. at Seller's expense,
              shall furnish a new survey to Buyer.
  D. OBJECTIONS: Buyer may object in wrttlng to defeots, exceptions, or encumbrances to title: disclosed on the
     euivey other than Items 6A(1) through (7) above; disclosed In the Commitment other than Items 6A(1) through
     (8) above; or which prohibit the foltowlng use or activity:-----~------------
     Buyer must object not later then (t) the Closing Date or (II)                             days after Buyer receives the
     Commitment. ExcepUon Documents, and the survey, whichever is eamer. Buyers falture to object within the time
     allowed will constitute a waiver of Buyers right to oblect; except that the requirements In Schedule C of the
     Commitment are not waived. Provided Seller Is not ob11gated to Incur any expense, Seller shalt cure the ttmely
     objections of Buyer or any third party lender w1lhin 16 days after Seller receives the objections and the Closing
     Date will be extended as necessary. If objections are not cured within such 15 day period, this contract wll/
     tenn!nate and the earnest money will be refunded to Buyer unless Buyer waives the objections.
 E. TITLE NOTICES:
     (1) ABSTRACT OR TITLE POLICY: Broker advises Buyer to have an abstract of title covering the Property
         examined by an attorney of Buyers selection, or Buyer should be furnished with or obtain a Title Polley. II a
          Tltle Polley Is furnished, the Commitment should be promptly reviewed by an attorney of Buyers choice due
          to the time limitations on Buyers rtght to object.
     (2) MANDATORY OWNERS' ASSOCIATION MEMBERSHIP: The Property 1lil ls D Is not subject to mandatory
         membership In an owners' association. If the Property rs subject to mandatory membership In an owners'
         association, Seller notifies Buyer under §5.012, Texes Property Code, that, as a purchaser of property In
         the residential community Jn which the Property Js located, you are Obligated to be a member of the owners'
         association. Restrictive covenants governing the use and occupancy of the Property and a dedicatory
         instrument governing the establishment, maintenance, and operaUon of this resldent1al community have
         been or wi/I be recorded in the Real Property Records of the county In which the Property Is located. Coples
         of the restrictive covenants and dedicatory Instrument may be obtained from the county clerk. You are
         obligated to pay assessments to the owners' association. The amount of the assessments Is subject to
         change. Your failure to pay the assessments could result In a lien on and the foreclosure of the Property. If
         Buyer Is concerned about these matters, the TREC promulgated Addendum for Property Subject to
         Mandatory Membership In an owna(s Association should be used.
    (3) STATUTORY TAX DISTRICTS: If the Property Is situated In a utility or other statutorlly created district
         providing water, eewer, drainage, or flood control facilities and selVlces, Chapter 49, Texas Water Code,
        requires Seller to deliver and Buyer lo sign the statutory notice relating to the tax rate, bonded Indebtedness,
        or standby fee of the district prior to final execution of this contract.
    (4)TIDE WATERS: It the Property abuts tha tidally Influenced waters of the state, §33.135, Texas Natural
        Resources Code, requires a notice regarding coaster area property to be Included in the contract. An
        addendum containing the notice promulgated by TREC or required by fhe parties must be used.
    (o)ANNEXATJON: If the Property Is located outside the limits of a municipality, Seller notifies Buyer under
        §5.011, Texas Property Code, that the Property may now or later be Included Jn the extraterritorial jurisdiction
        of a munlc/pallty and may now or later be subject to annexation by the municipality. Each municipality
        maintains a map that depicts Its boundaries and extraterritorial Jurisdiction. To determine If the Property Is
        located within a municipality's extraterritorial jurisdiction or is flke/y to ba located within a municipality's
        exlraterrltor/al jurisdiction, contact all municipalltles located In the general proximity of the Property for further
        Information.


                                                               and Seller_--"''--- _ __                                          TREC NO. 24·6
                                                                                                                                    Page2of9
      PrQdUoe,i;.iwJlh Zlpform"' by RE FormsNe~ LLC 18025 F!neen Mlle Road, Cll~ton Towmhlp, M!chlgan 480311 mmz!o!orm com         VSDH V11que10 V
                                                           2004 White Wing Cove
    Contract Concerning _ _ _ _ _ _ _ _ __,w..,e,,s,_,t.,l.,,a.,k.,,e,_,,'-"T"'X,__,_7_.6.,2..,6.,2_ _ _ _ _ _ _ _ _ page 3 of9 02-13-06
                                                     (Address of Property)

           (6) PROPERTY LOCATED IN A CERTIFICATED SERVICE AREA OF A UTILITY SERVICE PROVIDER:
               Notice required by §13.257, Water Code: The real property, desor!bad In Paragraph 2, that you are about to
               purchase may be located In a certlficeted water or sewer service area, which Is authorized by law to provide
               water or sewer service to the properties In the certificated area. If your property Is located In a certlflceted
               area there may be special costs or charges that you w/11 be required to pay before you can receive water or
               sewer service. There may be a period required to conslruct lines or other tacllllies necessary to provide
               water or sewer service to your property. You are advised to determine If the property Is In a certificated area
               and contact the uHl/ty service provider to determine the cost that you wltl be required to pay and the period, If
               any, that Is required to provide water or sewer service to your property. The undersigned Buyer hereby
               acknowledges receipt of the foregoing notice at or before the execution of a binding contract for the purchase
               of the real property described in Paragraph 2 or at closing of purchase of the real property.
           (7) PUBLIC IMPROVEMENT DISTRICTS: If the Property Is In a pub/le Improvement dlstrlc~ §5.014, Property
               Code, requires Seller to notify Buyer as follows: As a purchaser of this parcel of real property you are
               obligated lo pay an assessment to a munlclpal.ty or county for an Improvement project undertaken by a
               public Improvement district under Chapter 372, Local Government Code. The assessment may be due
               annually or Jn periodic Installments. More Information concerning the amount of the assessment and the due
               dates of that assessment may be obtained from the munlolpal/ly or county levying the assessment. The
               amount of the assessments Is subject to change. Your failure to pay the assessments could result In a lien
               on and the foreclosure of your property.
   7, PROPERTY CONDITION:
      A. ACCESS, INSPECTIONS AND UTILITIES: Seller shall permit Buyer and Buyer's agents access to the Property
          at reasonable times. Buyer may have the Property Inspected by inspectors selected by Buyer and licensed by
          TREC or otherwise permitted by law to make Inspections. Seller shall pay for turning on existing utllltlas for
          Inspections.
      B. ACCEPTANCE OF PROPERTY CONDITION: Buyer accepts the Property In its present condition; provided
          Sellar, at Seller's expense, shall complete the following specific repairs and treatments; and make the following
          Improvements: All items written on inspection report as non-functi.onal: seller
          will renai.r
      C. WARRANTIES: Except as expressly set forth In this contract, e separate writing, or provided by law, Seller
          makes no other express warranties. Seller shall ass!gn to Buyer at closlng all assignable manufacturer
         warrantfes.
      D. INSULATION: As required by Federal Trade Commission RegulaHons, the Information relating to the Insulation
          Installed or to be installed In the Improvements at the Property Is: (check only one box below)
         D    (1J as shown in the attached speclflcat/ons.
         D (2 as follows:
                  a) Exterior walls of Improved living areas: Insulated with ~--~~~-~---------
                     Insulation to a thickness of               Inches which yields an R-Value of - - - - - - - - -
                  b) Wallo In other areas of the home: Insulated with
                     Insulation to a thickness of               Inches w--.-hl'""ch~y'""ie'id'""s-a"'n"'R"'-"'V"'a'lu-e-o"f----------.
                 c) Ceilings In Improved J/V/ng areas: Insulated with ----~~~-~--------
                     Insulation to a thickness of               Inches which yields an R-Value of                                    .
                 d) Floors of Improved living areas not applied to a slab foundation: Insulated with Insulation to a thickness
                     of                Inches which yields an R-Value of                                        .
                 e) Other Insulated areas: Insulated with                                                               lnsulal/on to
                     a thickness of               Inches which yields an R-Value of -~--~~----
        All stated R-Values are based on Information provided by the manufacturer of the Insulation.
     E. LENDER REQUIRED REPAIRS AND TREATMENTS: Unless otherwise agreed In writing, neither party Is
        ob/lgated to pay for lender required repairs, which Includes treatment for wood destroying Insects. If the parties
        do not agree to pay for the lender required repairs or treatments, this contract will terminate and the earnest
        money will be retunded to Buyer. If the cost of lender required repairs and treatments exceeds 5% of the Sales
        Price, Buyer may terminate this contract and the earnest money wl/I be refunded to Buyer.
     F. COMPLETION OF REPAIRS, TREATMENTS, AND IMPROVEMENTS: Unless otherwise agreed in writing,
        Seller shall complete all agreed repairs, treatments, and Improvements (Work) prior to the Closing Date. All
        required permits must be obtained, and Work must be performed by persons who are licensed or otherwise
        authorized by law to provide such Work. At Buyer's election, any transferable warranties received by Seller with
        respect to the Work wlll be transferred to Buyer at Buyer's expense. If Seller falls to complete any agreed Work
        prior to the Closing Date, Buyer may do so and receive reimbursement from Seller at closing. The Closing Date
        wlll be extended up to 15 days, If necessary, to complete Work.




Initialed for identification by Buyer: f/v '           k    ~     and Seller        -                                            TREC NO. 24-6
(TAR-1604) 2-13-06                  r                                                                                               Page 3 of 9
          ProducedwllhZlpForm™ by RE FormsNel, Ll.C 1ao2t1 Fine.en Mlle Road, Cllnlon Township, Michigan 48036 WNJ ilptorm.com     VSDH Vaquero Y
                                                               2004 White Wing Cove
       ContractConcemlng                                       Wegtlake. TX                 76262                                        Page4of9 02-13-06
                                                                         (Address of Property)
       G. ENVIRONMENTAL MATTERS: Buyer Is advised that the presence of wetlands, toxic substances, Including
           asbestos and wastes or other environmental hazards or lhe presence of a threatened or endangered species or
           its habitat may affect Buyer's intended use of the Property. If Buyer is concerned about these matters, en
           addendum promulgated by TREC or required by lhe parties should be used.
       H. SELLER'S DISCLOSURE: Except as otherwise disclosed In this contract, Seller has no knowledge of the
           following:
           (1) any flooding of the Property which has had a material adverse effect on the use of the Property;
           (2) any pending or threatened litigation, condemnation, or special assessment affecting the Property;
           (3) any environmental hazards or conditions materially affecting the Property;
           (4) any dumpslte, landfill, or underground tanks or containers now or previously located on the Property;
          (5) any wetlands, as defined by federal or state law or regulation, affecting the Property; or
          (6) any threatened or endangered species or their habitat affecting the Property.
      I. RESIDENTIAL SERVICE CONTRACTS: Buyer may purchase a residential service contract from a residential
          service company llce11sed by TREC. If Buyer purchases a residential service contract, Seller shall reimburse
          Buyer at closing for the cost of the residential service contract In an amount not exceeding
          $                                  . Buyer should review any residential service contract for the scope of coverage,
          exclusions and limllatlons. The purchase of a resldentlal service contract Is optional. Similar coverage may
          ba purchased from various compantes authorl•ed to do business In Texas.
  8. BROKERS' FEES: All obligations of the parties for payment of brokers' fees are contained In separate written
      agreements.
  9. CLOSING:
      A The closing of the sale will be on or before                 Jµne 12                 , 2007      , or within 7 days after
          objections made under Paragraph 60 have been cured or waived, whichever date is later (Closing Date). If
          either party falls to close the sale by the Closing Date, the non-defaulting party may exercise the remedies
          contained in Paragraph 15.
      B. At closing:
          (1) Seller shall execute and deliver a general warranty deed conveying lltle to the Property to Buyer and showing
               no additional exceptions to those permitted in Paragraph 6 and furnish lax statements or certificates showing
               no delinquent taxes on the Property.
         (2) Buyer shall pay the Sales Price in good Funds acceptable to the escrow agent.
         (3) Safier and Buyer shall execute and deliver any notices, statements, certificates, affldavlis, releases, loan
              documents and other documents required of them by this contract, the Commitment or law necessary for the
              closing of the sale and the issuance of the Tiiie Polley.
     C. Unless expressly prohibited by written agreement, Seller may continue to show the Property end receive,
         negotiate and accept back up offers.
     D. All covenants, representations and \varranUes In this contract survive closing.
 10. POSSESSION: Seller shall deliver to Buyer possession of the Property in Its present or required condition,
     ordinary wear and tear excepted: !XI upon closing and funding D according to a temporary resldenllal lease form
     promulgated by TREC or other written lease required by the parties. Any possession by Buyer prior to closing or by
     Seller after closing which Is not authorized by a wrltten !ease will establish a tenancy at sufferance relationship
     between the parties. Consult your Insurance agent prior to change of ownership and possession because
     Insurance coverage may be limited or terminated. The absence of a written lease or appropriate insurance
     coverage may exposo the parties to economic loss.
 11. SPECIAL PROVISIONS: (Insert only factual statements and business details applicable to the sale. TREC rules
     prohibit llcenseeo from adding factual statements or business details for which a contract addendum, lease or other
     form has been promulgated by TREC for mandatory use.)
  t)    See Addendum            11
                                     A 11 and Addendum             11   B"
 ~) Y•r v•~J,,...,J..,y "~"'lh.:..-y ~,..:.~l ~eai--. 1 -1k.. B'--"I'~ ~                                                     [MAu\-      IHme_cy
        t<. ,._.,. +L~l.\t. .._\- 'S:loOP"" r-">i'1 •"- ~I                                                       z,"c. 'f,2-0•1.


Initialed for !dentlficaUon by Buyer~'l-''°~"'--             ~ ·?-       and Seller         <"                                               TREC NO. 24·6
(TAR-1604) 2-13-06                     '                                                                                                        Page4 of9
            Produoed "'1'th ZlpForm ™by RE FormeNat, LLC 10025 Fifteen MMe Roa cl, Cllr'll.on Township, Michigan 46035 WMV-zlprorm com         VSDH V11q11ero V
                                         2004 White Wing Cove
    Contract Conoernlng _ _ _ _ _ _ _ _ _~w~e~•~t.,,.l~a'!'k~e,_.,'--c'T"'X'-2?,,6,.2""6"'2--------- Page 5 of 9 02~13·08
                                                           (Address ol Property)
   12. SETILEMENT AND OTHER EXPENSES:
          A. The following expenses must be paid at or prior to oloslng:
              (1) Expenses payable by Seller (Seller's Expenses):
                  (a) Releases of existing liens, Including prepayment penalties and recording tees; release of Seller's loan
                       llablllty; tax statements or certificates; preparation of deed; one-half of escrow fee; and other expenses
                       payable by Seller under this contract.
                  (b) Seller shall also pay an amount not to exceed $ - o-                         to be applied In the following order:
                       Buyer's Expenses which Buyer Is prohibited from paying by FHA, VA, Texas Veterane Housing Assistance
                       Program or other governmental loan programs, and then to other Buyer's Expenses as allowed by the
                      lender.
              (2) Expenses payable by Buyer (Buyer's Expenses):
                  (a) Loan origination, discount, buy-down, and commltmsnl fees (Loan Fees).
                  (b) Appraisal fees; loan application fees; credit reports; preparation of loan documents; Interest on the notes
                      from date of dlsbursemenl to one month prior to dates of flrst monthly payments; recording fees; ooples
                      of easements and resMctlons; mortgagee title policy with endorsements required by lender; loan-related
                      Inspection fees; photos; amortization schedules; one-half of escrow fee; all prepaid Items, Including
                      required premiums for flood and hazard Insurance, reserve deposits for Insurance, ad valorem taxes and
                      spacial governmental assessments; final compliance Inspection; courier fee; repair Inspection;
                      underwriting fee; wire transfer fee; expenses Incident to any loan; and other expenses payable by Buyer
                      under this contract.
         B. Buyer shall pay Private Mortgage Insurance Premium (PM/), VA Loan Funding Fee, or FHA Mortgage Insurance
             Premium (MIP) as required by the lender.
         C. If any expense exceeds an amount expressly stated In this contract far such expense to be paid by a party, that
             party may terminate this contract unless the other party agrees to pay such excess. Buyer may not pay charges
             and fees expressly prohibited by FHA, VA, Texas Veterans Housing Assistance Program or other governmental
             loan program regulations.
  13. PRORATIONS AND ROLLBACK TAXES:
         A. PRORATION$: Taxes for the current year, maintenance fees, assessments, dues and rents will be prorated
            through the Closing Date. The tax proration may be calculated taking Into consideration any change In
            exemptions that wlll affect the current year's taxes. If taxes for Iha current year vary from the amount prorated at
            closing, the parties shall adjust the proretlons when tax statements far the current year are available. If taxes are
            not paid at or prior lo closing, Buyer will be obligated to pay taxes for the current year.
         B. ROLLBACK TAXES: If Seller's change In use of the Property prior to closing or denial of a special use valuation
            on the Property results In additional taxes, penalties or Interest (Assessments) for periods prior to closing, the
            Assessments wltl be the obligation of Seller. Obligations Imposed by this paragraph wlll survive closing.
  14. CASUALTY LOSS: If any part of the Property Is damaged or destroyed by flre or other casualty after the effective
        date of this contract, Seller shall restore the Property to Its previous condlllo.n as soon as reasonably possible, but-IA
        any event by the Closing Date:-lrSeller falls to do so due to factors beyond Seller's-·control, Buyer may -let
        terminate this contrnot and the earnest moneywlll be refunded to Buyer (b)-extend the time .for performanca"'p..lo
        15 days and the Closing Date wlll be·extended as necessary·"'·(G} accept the Property in its damaged condition with
      · an assignment of insurance proceeds and receive credit from Seller at closing In the amount of the deductible under
        the Insurance policy. Seller's obligations under this paragraph are Independent of any other obligations of Seller
        under this contract.
 15. DEFAULT: If Buyer falls to comply with this contract, Buyer will be In default, and Seller may (a) enforce specific
        performance, seek such other relief as may be provided by Jaw, or both, or (b) terminate this contract and receive
        the earnest money as liquidated damages, thereby releasing both parties from this contract. ,
                                                                                                                                          . .,
                                                                                                                                         Sole  "'"d.
        beyond Sellers control, Seller fails within the time allowed to                                                         ver the   ~~\:VIC.
        Commitment, or survey, If re ·                      ,          ay a extend the time for performance up to 16 days and the ~"""''~e-1,
                                                                                                                                            'LI \-""1,.
        Closing D             ·      extended as necessary or (b) terminate this contract as the sole remedy and receive the
                             . If Seller falls to comply with this contract for any other reason, Seller will be in default and Buyer
        ma (a) enforce speclflc performance, aeelE e1::1e[::i slh r 11 e' es ms; t ;' ; ddad b; la::, et both, or (b) terminate
                                                                 2




                  tract and receive the earnest mane , thereb releasln both ertles. rom this contr ct.
 16. MEDIATION: It Is the po cy o e e e o Texas to encourage resolution of disputes through alternative dispute
        resolution procedures such as mediation. Subject to applicable law, any dispute between Seifer and Buyer related to
       this contract which Is not resolved through informal discussion                   will 0 will not be submitted to a mutually
       acceptable mediation service or provider. The parties to the med' Ion shall bear the mediation costs equally. This
         ara ra h doss not reclude                   fro seekin e uitabfe rell      om a court of com etent urlsdlctlon.
lnlllaled for Identification by Buyer                      ? and Seller                                                  TREC NO. 24-8
(TAR-1604) 2-13-08                                                                                                            Page5ofg
                                                                  2004 White Wing cove
    Contract Concerning                                           Westl.ake. IJIX         7 62 62                                      Page 6 of 9   02-13·06
                                                                         (Addrass of Property)
  17. ATIORNEY'S FEES: The prevalllng party In any legal proceeding related to this conlracl Is entllled to recover
      reasonable allornsy's fees and all costs of such proceeding Incurred by the prevatllng party.
  18. ESCROW:
      A. ESCROW: The escrow agent Is not (I) a party to this conlraot and does not have llablllly for the performance or
          nonperformance of any party to this contracl, (ii) llabla for Interest on the earnest money and (Ill) liable for the
          loss of any earnest money caused by the failure of any financial tnstltutlon In which lhe earnest money has been
          deposited unless the financial Institution is acting as escrow agent.
      B, EXPENSES: At closing, the earnest money must be applied first to any cash down payment, then to Buye~e
          Expenses and any excess refunded to Buyer. If no closing ocours, escrow agent may require payment of unpaid
          expenses Incurred on behalf or the parties and a written release of liability of escrow agent from all parties.
      c. DEMAND: Upon termination of lhis conlracl, either party or the escrow agent may send a release of earnest
         money to each party and the parties shall execute counterparts of the release and deliver same to the escrow
         agent. If either party falls to execute the release, eltber party may make a written demand to the escrow agent for
         the earnest money. If only one party makes written demand for the earnest money, escrow agantshall promptly
         provide a copy of the demand to the other party. If escrow agent does not receive written objection to the
         demand from the other party within 15 days, escrow agent may disburse the earnest money to the party making
         demand reduced by the amount of unpaid expenses I.curred on behalf of the party receiving the earnest money
         and escrow agent may pay the same lo the creditors. If escrow agent complies with the provisions of this
         paragraph, each party hereby releases escrow agent from all adverse claims related to the disbursal of the
         earnest money.
     P. DAMAGES: Any party who wrongfully falls or refuses to sign a release acceptable to the escrow agent within 7
         days of receipt of lhe request will be liable to the other party for liquidated damages of three times the amount of
         the earnest money.
     E. NOTICES; Escrow agent's notices will be effective when sent In compliance with Paragraph 21. Notice of
         objeclion lo the demand will be deemed effective upon receipt by escrow agent.
 19. REPRESENTATIONS: Seller represents lhat as of the Closing Date there will be no liens, assessments, or security
      Interests against the Property which will not be satisfied out of the sales proceeds. If any representation or Seller In
      this contract Is untrue on the Closing Pate, Seller will be In default
 20. FEDERAL TAX REQUIREMENTS: If Seller is a "foreign person," as defined by applicable law, or If Seller falls to
     deliver an aftldavll to Buyer that Saller Is not a "foreign parson,• then Buyer shall withhold from the sales proceeds
     an amount sufficient to comply with applicable tax law and deliver the same to the Internal Revenue Service
     together with appropriate tax forms. Internal Revenue Seivlce regulations require filing written reports If currency In
     excess of specified amounts Is received In the transaction.
 21. NOTICES: All notices from one party to the other must be In writing and are effective when malled to,
     hand-delivered al, or transmltled by facsimile or electronic transmission as,follows:

     To Buyer                                                                               To Seller
     at:                                                                                    at:
     1430 Eagle Bend Drive                                                                   5305 Village Creek

     Southlake. TX 76092                                                                     Plano. TX 75093



     Telephone; _(fil,]J4.,2~1.:-::.o4.,8"'3"4'------                                        Telephone: (972) 732-1155

     Facsimile: _______________                                                              Facsimile:      'IJl--1:>-i.-k&<llJ

     E-mail: - - - - - - - - - - - - - - - - -
                                                  !
                                                                                             E-mail:    H 1':,ko \:-:> ""~'\ "'' ~ ;{o"'-1"· "-'J-
                                               , 'j ~                                               /
Initialed for Identification by Buye'r-"" Pf-".__           /'\   L    and Seller ______c"J."'-"---                                        TREC NO. 24-6
(TAR-1604) 2-13-06                       1::-T                                                                                                Page 6 of 9
           Prod~ced With   ZlpForm™ by RE FcrmsNet. LLC 1B02P Fine en MUe Read, Clinton Town:Jh!p, Michigan 48036 w.wJ zlgftlrrn com          VSDH Vaquero V
                                                                2004 White Wing Cove
        Contract Conoornlng                                     Westlake . '!'~ 7 6262                                                   !='age 7 of9   02-13-08
                                                                         (Addre.ss of Property)

      22. AGREEMENT OF PARTIES: This contract contains the entire agreement of lhe parties and cannot be changed
          except by their written agreement. Addenda which are a part of this contract are (check all applicable boxes):

          0 Third Party Financing Condition Addendum                                                  0 Addendum for "Back-Up" Contract

          0 Seller Financing Addendum                                                                 0 Environmental Assessment, Threatened or
                                                                                                        Endangered Species and Wetlands
                                                                                                        Addendum
          l&I Addendum for Property Subject to                                                        0 Addendum fo.r Coastal Area Property
              Mandatory Membership In an Owners'
              Association

          0 Buyers Temporary Residential Lease                                                        0 Addendum for Property Located Seaward of
                                                                                                         the Gulf lntracoastal Waterway
          0 Addendum for Sale of Other Property by                                                    ll!I Other (list): Addendum "A"         &
              Buyer                                                                                     Add@ndum       nan


~

'
     23. TERMINATION OPTION: For nominal con~deratlon, the receipt of which Is hereby acknowledged by Seller, and
         Buyer's agreement to pay Seller$             N · l'l--               (Option Fee) within 2 days after the effective date of
         this contract, Sejler grants Buyer the unrestricted right to termlnata this contract by giving notice of termination to
         Seller within /I A\:-       days after the effective date of this contract. If no dollar amount is stated as the Option Fee
         or If Buyer fails to pay the Option Fee within the time prescribed, this paragraph will not be a part of this contract and
         Buyer shall not have the unrestricted right to terminate this contract. If Buyer gives notice of termination within the
         time prescribed, the Option Fee will not be retunded; however, any earnest money will be refunded to Buyer. The
         Option Fee 0 will 0 will no! be credited to the Sales Price at closing. Time Is of tho essence for this
         paragraph and strict compliance with the time for performance Is required.


     24. CONSULT AN ATTORNEY: Real estate licensees cannot give legal advice. READ THIS CONTRACT
         CAREFULLY. If you do not understand the effect of this contract, consult an attorney BEFORE signing.

     Buyers
     Attorney Is:        f1/JC/;          2. 11'{&€/U-utAI



     Telephone:     --{.8h,1-/__,_2_-_,fL.L'f~)~,____---"'/.)o.....t.7'-1-/_ __      Telephone:             7-l'l -1 ~<i -0(, 0(,.

     Facsimile:                                                                      Facslmlla: __~_l'f_-_1_~_.:9_-_o__,ie'--o'--7=--------

     E-mail:. ______________




                                                       '                                          /
    Initialed for ldentlftcatlon by Buyer          '       -    !< f-and Seller-~ ______                                                      TREC NO. 24-6
    (TAR-1604) 2-13-06                            -, -.                                                                                          Page 7 of9
              PrO<fucedwl!ll ZlpForm'" by RE FormsNet, LLC 16026 F/flecn Miia Road, CJlnlon Township, Mlchl11an 48035 ymw z!oform CQID          . VSDH Vaquero V
                                        2004 White Wing Cove
   Contract Concernlng _ _ _ _ _ _ _ _ _w,..e.,..s:!<tl,._a,.k&e,._,_._T,,x,.__7L6o,20'6o,2.__ _ _ _ _ _ _ _ Page a of 9                        02-13-08
                                                                   (Address of Proparty)



  EXECUTED the               day of _ _ _ _ _ _ _ _ _ _ _ , _ _ _ _ _ (EFFECTIVE DATE).                                                                    I
  {BROKER: FILL IN THE DATE OF FINAL ACCEPTANCE.)




  This contract Is subject to Chapter 27 of the
  Texas Property Code. The provisions of that
  chapter may affect your right to recover
                                                                                     suyer~~
  damages arising from the performance of this
  contract. If you have a complaint concerning a
  construcUon defect arising from the performance
  of this contract and that defect has not been
  corrected through normal warranty service, you
  must provide the notice required by Chapter 27
  of th& Texas Property Code to the contractor by
  certified mall, return receipt requested, not later
  than the 60th day before the date you flle suit to
  recover damages In a court of law or Initiate
                                                                                             ,________
  arbitration. The notice must refer to Chapter 27                                  Seller VSDH Vaquero Venture Ltd.
  of the Texas Property Code and must describe                                               f51:1tt ~;I..'-- <:,P
  the construclion defect. If requested by the
  contractor1 you must provide the contractor an
  opportunity to Inspect and cure the defect as
  provided by Section 27.004 of the Texas
  Property Code.                                                                    Seller




  The form of this contract has been approved by the Texas Real Estate Commission. TREC forms are Intended for use only by
  trained real estate licensees. No representation Is made ae 10 the legal validity or adequacy of any provision fn any specific
  transacifons. It la not Intended for complex transactions. Texas Real Estate Commission, P.O. Box 12168, Auslln, TX 78711-2186,
  1-800-250·8732 or (612) 459·6544 (http://www.lrec.stale.tx.us) TREC NO. 24-6. Thi• form replacee TREC NO. 24·5.


                                                                                                                                          TREC NO. 24·6
{TAR-1604) 2-13-06                                                                                                                           Page 8 of 9
         Prodt1ced Wllh Z!pForm111 by RE FormaNel LLC 18025 Fifteen Mlle Roarl, c11ri1on Towmhlp, Mlehlgan 48036   WfWt   :i!pforcn com     VSDHVaquero V
                                                 2004 White Wing Cove
   Contract Concerning _ _ _ _ _ _ _ _~w~e~s~t~l~ak~e..,_.~'r~X~~7~6~2~6~2~------- Page ti org                                       02·13·06
                                               (Address of Property)

                                    BROKER INFORMATION AND RATIFICATION OF FEE
   Listing Broker has agreed to pay other Broker               " 1•                    of the total sales price
   when Listing Broke~s fee Is received. Escrow Agent Is authorized and directed to pay Other Broker from
   Listing Broker's fee at closing.
                                                                            Va~ero  Residential
                                                                            Realty, LLC                                            0298573
   Other Broker                                   License No.               Listing Broker                                License No.
   represents   D    Buyer only es Buyer's agent                            repreaents   [2) Seller and Buyer as an intermediary
                ·0   Seller as LlsUng Broker's subagent                                  D Seller only as Seller's agent
                                                                                                                      (917)      430-6600
   Associate                                       Telephone                Listing Associate                                     Telephone

                                                                            1405 Fountain Grass
                                                                            Court                                     (817)430-6601
   Broke~s   Address                                                        Listing Assoclate's Office Address                     Facsimile


                                                                            Westlake                                TX               76262
  City                                 State              Zip               City                                   State                 Zip


  =Fa_c_s7
         fm"ll~e------------·--·                          ·---·             Eiiia7.il~A--d,~d-re_s_s   _________ - - - - - - - -



  Email Address                                                             Selling Associate                                     Telephone



                                                                            Selling Assoclate's Office Address                     Facsimile



                                                                                                                   Staie                 Zip



                                                                            Email Address
                                                     OPTION FEE RECEIPT
  Receipt of$ - - - - - - - - (Option Fee) in the form of _ _ _ _ _ _ _ _ _ _ _ Is acknowledged.

  Seller or Listing Broker                                                  Date



                                       CONTRACT AND EARNEST MONEY RECEIPT                                                  ,:
  Rscelptof Ill Contract and     ll2i $ ~D,LX.:0 --    Earnest Money In the form of                           c:.z/_e_LK _,;
  ~.~~~~~A:i~~~•dc:,;,c,,tfc_.;po'i':fL,0 .                                             oate:           6/4;&~.          .           /, . .
    /_,.{d." ·· / ~-5 ;,,c,.<..--Jr/
  By:                                                                                ~m-tu:./&Ctc!.~f.f;.{e£A·...~fi../M_('{Jf{
   hb ,§15 1/II C.tr.!7[..f.U._., rf:fu>D                          .....-~:i:~h~~~es•;;i1<;1 --'!01 - 0(7/
  Auu~ P Ji<5                7'/.. L/                             7::;W> Facsimile: ,;2;q -.!'(al ·41b'J
  Cltv                 ,               State                                 Zip
                                                                                                                                TREC NO. 24-6
(TAR·1604) 2-13-06                                                                                                                 Page 9 of 9
                                              PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC)                                                       02-13-08



                           SUBDIVISION INFORMATION, INCLUDING
                 RESALE CERTIFICATE FOR PROPERTY SUBJECT TO MANDATORY
                         MEMBERSHIP IN AN OWNERS' ASSOCIATION
                                                       (Section 207.003, Texas Property Code)

                                                              {NOT FOR use WITH CONDOMINIUMS)



        Resale   Certificate    concerning         the     Property       (Including      any        common      areas      assigned      to the Property)
    located at                                          2004 White Wina Coye                                                            (Street Address), City
    of            Westlake                             , County Of           Tarrant;                                                       1 Texas, prepared

    by the property owners' association (the Owners' Association).

    A. The Property 0 is 0 is not subject to a right of Hrst refusal or other restraint contained in the
       restrictions or restrictive covenants that res~lcts the owner's right to transfer the owner's property.

    8. The current regular assessment for the Property is$· 1 • sa 1 . o o                                   per _ __,,s.,e"'m.,i..::-,.a"'n"n"'u"a""l""l~y---

    C. A special assessment for the Property due after the date the resale certificate was
       prepare<f i s $ · - - - - - - - - payable as follows - - - - - - - - - - - - - - - - - - -
    D. The total of all amounts due and unpaid to the Owners' Association that are attrtbutabla to tho
       Property is$ - - - - - - - -

    E. The       capftal    expenditures          approved        by     the     Owners'        Association       for    its   current      fiscal      year   are
           $ _ _ _ _ __

    F. The amount of reserves for capita/ expenditures r s $ - - - - - - - -

   G. Unsatisfied judgments against the Owners' Association total $ - - - - - - - -

   H. There Dare        0 are not any suits pending against the Owners' Association. The style and cause
          number of each pending suit Is: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __



 · t.     Tho Owners' Association's board D has actual knowledge 0 has no actual knowledge of conditions on
          the Property In violation of the restrictions applying to the subdivision or the bylaws or rules of the
          Owners' Association. Known violations a r e : - - - - - - - - - - - - - - - - - - - - - - - -



  J.      The Owners' Association D has 0 has not received notice from any governmental authority regarding
          health or building code violations with respect to the Property or any common areas or common facllltles
          owned or leased by the Owners' Association. A summary or copy of each notice is attached.

  K. The Owners'
     payable     Assoc/allon fees resulting from the transfer of the Property are$ - - - - - - - - - - - -
             to __________________________________                                                       _



Initialed for Identification by
(TAR-1923) 2-13-06
                                    Buyer~
                                             ~
                                                         /_,, f--anct Seller   x __                                                                 TREC NO. 37-2
                                                                                                                                                       Page 1 of 2
 Vaquero Residential Realty I405 F'oun!ain Grass Ct., \Vestlake TX 76262
 Phone; 8174306600               Fax: 817-430-6601               Vaqllero Reslde11fl11! Realty, LL                                                    VSDH Vaquero V
                      ProdlJc&d vJlh ZlpFOfTll ™by RE FO!lllSNet, LLC 18025 Fifteen Mile Road, Clinton Towns.hip, MIChlgan -48035 WWW ;!pfonn com
                                                                      2004 White Win9 Cove
    Subdivision Information Concerning                                 H@s!J.Akg, ?X            222§2                          Page 2 of 2 02-13·06
                                                                              (Address of Property)

    L. The Owners' Association's managing agent is Q:inne Mf!l!:e.t!i! , BTI                          C2mmunit~ Man§g~~nt                  Assoc,
                                                                                                      (Name of Agent)


                             1500 N. NorwooQ               Di;       BlQg:   ~,   1   S;uite ;>QO, Hyrst, 1          ~K   2§05§
                                                                 '      (Malling Address)


                              rnui   215-21~~                                                                rn17121s-n:rn
                            (Telephone Number)                                                                  {Fex Number)

   M. The restrlclions li5) do Odo not allow foreclosure of the Owners' Association's lien on the Property for
      failure to pay assessments.

   REQUIRED ATTACHMENTS:

   1. Restrictions                                                                     5. Current Operating Budget

   2.      Rules                                                                       6.   Certificate of Insurance concerning Property
                                                                                            and Liability Insurance for Common Areas
   3.   Bylaws                                                                              and Facl!l!les

   4.   Current Balance Sheet                                                          7. Any Governmental Notices                 of     Health     or
                                                                                          Housing Code Violations


   NOTICE: This Subdivision Information may change at any time.


                                                 VamJ§~Q HQ~owner•~ A~§Qgist~on
                                                            Name of Owners' Association


  By:


  Title:

  Malling Address:

  E·mall:

  Date:




 This fonn has boon approved by the Texas Roal Eslale commission far use only wllh slmllarty approved or promulgated contract forms.
 No represenlaVon Is made as to the legal valldlly or adequacy of any provision In any specific transaction. Texas Roal Eslale Commission,
 P.O. Box 12188, Austin, TX 78711·2188, 1-800-260-8732 or (512) 459-6544 (hllp:llwww.trec.slale.tx.us) TREC No. 37·2. This fonn
 replaces TREC No. 37·1.


                                                                                                                                   TREC NO. 37-2
(TAR-1923) 2-13-06                                                                                                                        Page 2 of 2


             Produced wilh ZlpForm™ by RE FormaNel, LLC 18026 Fifteen Mlle Road, Cllntc11 T0M15hlp, Miehlgan 48035 ~fQJm&Qm_            YSDI I Vaquero V
                                   PROMULGATED BY THE TEXAS REAL ESTATE COMMISSION (TREC)                                                        02-13.06

                              ADDENDUM FOR PROPERTY SUBJECT TO
                        MANDATORY MEMBERSHIP IN AN OWNERS' ASSOCIATION
                                                       (NOT FOR USE WITH CONDOMINIUMS)
                             ADDENDUM TO CONTRACT CONCERNING THE PROPERTY AT
     2004 White Wing Cove                                                                                                                   Westlake
                                                                    (Street Address and City)
                                                    Vaquero Homeown•r's AS$OQiation
                                                                (Name of Owners 1 Association)

    A.     SUBDIVISION INFORMATION: "Subdivision Information" means: (I) the restrictions applying to the subdivision, (II)
           the bylaws and rules of the Owners' Association, and (iii) a resale certificate, all of which were provided by the
           Owners' Association In compliance with Section 207.003 of the Texae Property Code.
            Check only one box):
                                                                                        '                                      ~
                  the Subdivision Information to Buyer. If Buyer, does not receive the Su                     a on, Buyer may
                  terminate the contract at any time prior to closing and t       ·       ey wlll be refunded to Buyer. If Seller
                  delivers the Subdivision lnforma                    ermlnate the contract for any reason within 7 days after
                  Buyer rece                  ts on Information or prior to closing, whichever first' ocicurs, and the earnest
                                                 er.
          £i' 2 Buyer has received and approved the Subdivision Information before signing the contract.
          "O 3. Buyer does not require delivery of the Subdivision Information.
           lf Seller becomes aware of any material changes in the Subdivision Information, Seller shall lmmedlately give
           notice to Buyer. Buyer may terminate the contract prier to closing by giving written notice to Sellar If: (I) any of the
           Subdivision Information provided was not true; or (II) any material adverse change In the Subdivision Information
           occurs prior to closing, and the earnest money will be refunded to Buyer.

   B.      FEES: Buyer shall pay any Owners' Association fees resurting from the transfer of the Property,.nst to e11eeeel
         , $818  11                a11dSeUe1 s11a!ipaya11yexcass.

   NOTICE TO BUYER REGARDING REPAIRS BY THE OWNERS' ASSOCIATION: The Owners' Association may have
   the sole responsibility to make certain repairs to the Property. If you are concerned about the condition of any part of the
   Property which the Owners' Association is required to repair, you should not sign the contract unless you are satisfied
   that the Owners' Association will make the desired repairs.



                                                                                                                                           -{/'.
                                                                                       Seller VSDH Vaquero Venture Ltd,
                                                                                                i(S j)if fur;u..r ,-a:;...._-   bf>.

                                                                                       Seller


         Tha form of this addendum has been approved by !he Texas Real Estate Commission for usa only with slmflar!y approved or
         promulgated forms of contracts. Such approval relates to this contract form· only. TREC forms are Intended for use only by
         trained reel estate !lcensees. No repreaenlallon Is made as to the legal velld!ly or adequacy of any provision Jn any specific
         transactions. It 18 not Intended for complex transactions. Texas Real Estate Commission, P.O. Box 12188, Austin, TX 78711-
         2188, 1-800-260-8732 or (6'f2) 459-6544 (http:flwww.trec.s!ate.b:.us) TREC No. 36·4. This form replaces TREC No. 36·3.



(TAR-1922) 2-13-06                                                                                                                            Page 1of1
Vaquero Residential Realty 1405 Fountain Grass Ct, Wes!lako TX 76262
Phone:8174306600                Pex: 817-430-6601            Vaquero Residential Re-11lly, LL                                              V.SDR Vaqucro V
                     Produced wlth ZlpForm™ by RE FormsNet, LLC 1S025 Fifteen Mlle Road, CllntM Township, MJchlgan48030 ww.y.zjprorm com
                                               A»DMDPMA
    t.         JIUY BACK OPTION: VSDH Vaquero Vonture Ltd. (VSDH), 1111 Beller, hmby
                srants lo KC111!0lh P. and Bolay L. Groll (Clroa•), oa Buyer, of 2004 White WlnJ
               Cove iii Vaquero subdivision, Woallab, T6X81 (tho Pro~rty) tho option (tho
               "Buy Baok Oplion") to put tho Properly to Soller (i.e., requiro Soller to rcpurohue
               tho Property for tho origjnol "Solos Pri""" of $2,8Sl,871.00) on Soplember l,
               2009, or auoh oarlior dato 118 may be mutually agreed between Buyer and Seller, ill
               wrllillg (tho "Buy !lack Dalo''), subject to tho followin.g tontt8 and conditions:·

               (a)'     DllCLARATION DATB: On or bolbrv May i, 2009, (tho "Declerallon
                        Dato"), lluyer must oxonilso·lho Buy Bad< Option by delivering writ!cn
                        notice thereof to Seller (tho "Buy Baolc Option Notlco''· ~ fur BUY
                        reMon, Seller has not received tho Buy Beok Option Noli..,, on or bof019
                        5:00, loco! time in DallM/Pmt Worth, Toxoa, onlhe Deolaratlon Delo, then
                        Buyer shall have waived tho Buy BllCk Option and same shall bo null
                        avoid.                                  ·

              (b)         BUYl!R BXBRCISBS TllB BUY BACK OPTION: If Buyer timely and
                          properly exeroiaos tho Buy Baok Oplion, then tho following shall apply:
                          (f) Buyer may. not sell or oonvoy any rlghl, title or interoat in and to the
                          Property to any third party unlCBB Soller broachea Its obllgstion to
                         rq>uroltaao lho Property pul'IUlll!t to tho Buy Baok Option due to no lilult
                          of Buyer; (II) Soller may conunenoo miu1<eflng tho Property' for sole on
                         May 2, 2009, and lluyer •8"008 to fully cooperate with sll madcolillg
                         otlbrts of Soller; and (Iii) on or before September I, 2009, unloaa Buyer
                         and Soller 81!1'00 upon anothor stated date in wrltlng, Buyer shall vacalO the
                         Property and dolivor full posscss!Oll thore<>f to Seller, and tho Property
                         shall bo fn tho samo condltton as existed on the original Closing Dato, plus
                         an,y Soller approved lmprovomenta, loss reasonable wear aud tear, with all
                         meobanloal, elcotrioal, plumbing and other syalems and componOllle fn
                         good woridng order and in a ''broom-<>loan". ootldltlon. Prior to tho
                        Declaration Dal!>, tho B11yor oan anter lnto a contrsot to tho sell tho
                        Ptoperty and will be entllled to all prooeods ftom auch sale. Should lh•
                        Bu;)ll>r onlor Into a con1Jaot to sell the property, the Buy Baok Option wlll ·
                        lnmu:dlaloly letminate and will no IOJl8or bo awllable to Buyer. If,
                        howovor, Buyer timely and properly oleots to invoke Ibo Buy Baok Option
                        and Ibo oloslng of tho repurohaso l4kos plsco, lhon Buyer walvea and
                      · relinquishes an,y and all olalms they may have to any proceeds ftom tho
                        subsequent aolo oftho Prop6rty by Soller, and Buyer shall not bo lillblo lbr
                        any loss Incurred by Soller &om tho subsequent salo of tho Property.

             (c)      CASUALTY: If tho Propotty is ~a111a9ed by fire or other ooaualty the cost
                      of whlob to repair Is equal to or greatot than $100,00.00, lhon, llollo1 llWI),
                      at Ms eptlon1 eMt to cdlher (i) ~•ftlM"• the Buy..Bao~ Opt±onfull ~d void,

         ·                                     Pege l   of~] k6- JlJI-. ~
~#lld Se11bija\doua\Loca) SttlfnSl\nruponry
.,,,.,{8.9Pl!)Ao<          -
                                            lntmrc,J:Fllt«JLK.6A\Ad~ A ~ ~"'    Coo!Jletv3
       If the cost to repair is less than $100,000, then Buyer shall, at Buyer's sole
       cost and expense, repair and restore the home to its prior condition in
       order for Buyer to have the right to exercise 1he repurchase option. If
       Buyer fuils to timely and properly repair and restore the Property prior to
       Buy Back option date, then Seller may tenninate the Buy Back Option.

 2.     BUYER"S IMPROVEMENTS: Before commencing construction, Buyer
        will review with Seller the plans and specification and receive general
        consent (consent not to be unreasonably withheld) to proceed with the
        improvements. Buyer will periodically (on a reasonable basis) update
        Seller regarding progress and timelines on completing the improvements.
        Sellei· understands that Buyer has the right to make minor changes and
       decisions during the process of completing the improvements provided
       they are in 1he best interest of completing the improvements in the most
       logical and reasonable manner. Buyer will also complete the
       improvements (i} in a good workmanlike manner, free from material
       defects, (ii) in accordance with all laws, ordinances, statutes, rules,
       regulations and any and all restrictions and other matters of record
       applicable thereto; and (iii) free of any liens or claims of any kind or
       character, and Buyer shall absolutely and unconditionally save, defend, or
       indemnify and hold harmless Seller from and against any and all
       reasonable attorney's fees and disbursements and all damages which may
       arise by reason of Buyer's perfonnance of any work thereto or Buyer's
       failure to do as required hereby or the Escrow Agreement (hereinafter
       defined).

3.    ESCROW AGREEMENT: The attached Addendum B is a spreadsheet of
      improvements and costs proposed by the Buyer to be made to the
      Property. A total of$156,871.00 oftbese improvements has been
      incorporated into the $2,851,871.00 Sales Price. Buyer agrees to escrow
      funds totaling $156,871.00 with the Title Company and enter into an
      Escrow Agreement (herein so called), acceptable to Seller and Buyer, that
      outlines the proposed improvements to the property and the disbursement
      of such funds. Buyer accepts risk of any improvement cost overruns in
      excess of$156,871.00, however, ifimprovements costs do not exceed the
      $156,871.00 allocated budget, Buyer may use the remaining funds and
      apply to other improvements not specified in Addendum B.

4.    Doub Hickok and Van Shaw as partners in VSDH Vaquero Venture Lts.
      Each hereby personally guaranty Sel1er's obligations under the Buy Back
      Option granted from VSDH to Buyer hereunder. In the event VSDH fails
      to perform fully under the tenns of the Buy Back Option, each of its
      partners set forth hetin above shall be personally responsible, jointly and
      severally, to perform the obligations ofVSDH under the Buy Back
      Option.
5.       Buyer reserves the right to cancel Buy Back Option after the declaration
         date provided that Seller has not entered into a purchase contract with a
         third party on 2004 White Wing.

In addition, in paragraph 15 in the body of the contract under DEFAULT, Seller
reinstates language stricken "seek spch other relief as may be nrovided by law, or
both:n
                                                                           ------'--------·~ -----~--·---   -




ADDENDUMB
2004 White Wing - 1092 Sq Ft Addition • Casita w/ FR, Bedroom, Shared Pool Bath

                                                                                     1500
                                                                                                    ...
                                                                                     2000
                                                                                     1750
                                                                                     800
En ineeer                                                                             500
Permit                                                                               1500
Trash Haul                                                                           1000

                                                                        546            8              4,368
Piers 8' x 24"                                                           19           200             3,800
Step                                                                      1           200              200
Pump Truck - Estimate                                                     1           1500            1,500
Front Patio                                                             156            3                        468
Back Patio to Pool                                                      522            3

                                                                                                                            ••
                                                                                                                            ••




                                                                                                                        -   •   I   I




                                                                                                                1,000
Electrical                                                              1092
Electrical - Additional Art Cans I Switches                              15            185                      2,775
Lightening Rods                                                                        750              750
                                                       --"----




NV I Alarm I Door Bell / Intercom
    •
Stone Material tons)                             25              145
                                                                        ..
                                                                       .2,000
                                                                        3,625
Stone Labor - Casita                            831               6     4,986
Stone Labor - Wall-Off A/C                       72                6
Stone Border Around Front Patio                  45               10
Stone for Front Patio Gale - Material & Labor     1              300




                                                                 4
                                                546           5
                                                 1           1200


                                                 14
                                                             1500
                                                                       ...

Paint & Stain - Addition & New Cabinets         1092          6         6,552
                                                                                        :     ••    •
Paint - Master                                   1           500                            500
Paint - Fo er                                    1           600                            600
Paint - FR                                                   700                             700
Paint - Halls                                                600                             600
Paint - Stairs                                   1           300                             300




                  --·
Paint - BR# 4 & Bath                             1           400                             400

            ..
Faux for Above Rooms

Wood - Casita Down
                                                 1           3000
                                                                                        :
                                                                                            3,000
                                                                                              ••
Slate - Pool Bath
Car et - Casita Bedroom and Media
Pool Bath Shower
                                                                                •
                                                                                1,000

A       liances                                              3000               1,500
                                                                                     . ...L. -




                                                                                     Base Price 2,695,000
                                                                                       Addition 126,851
                                                                                      Remodel     30,020
                                                                                 Purchase Price 2,851,871

                                     Purchase Price or Contract Price to be: 2,851,871
                                     Seller to pay for improvements totaling: 156.871
                      Any improvments over 156,871 are at Buyer's expense
If improvmenets cost less than 156,871, Buyer wil be refunded the difference
                                                                                     ~~
                                                        TEXAS ASSOCIATION OF REALTORS®
                                                   INTERMEDIARY RELATIONSHIP NOTICE
                                  USE OF THIS FORM 8Y PERSONS 'M-iO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REAL TORS® 15 NOT AUTHORIZED
                                                                     ©Texas Association of REAL TORS®, loc. 2004




         To:       ----------~V~S~D=H~V=a.,au.,._,e=r~o~V=e~n~t~u~rce~L=t=d~·-~-------- !Seller or Landlord)
                   and                           Kenneth P. Gross     ~ \:>et-.s.'{ L • EJ..-o SS (Prospect)
         From: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ! B r o k e r ' s Firm)
               2004 White Wing Cove
         Re:   =W=e=s=t=l=a=k=e~=T=X~~7=6~2=6~2_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Property)

         Date:

        A      Under this notice, "owner' means the seller or landlord of the Property and "prospect" means the above-named
               prospective buyer or tenant for the Property.

         B.    Broker's firm represents the owner under a listing agreement and also represents the prospect under a buyer/tenant
               representation agreement.

        C.     In the written listing agreement and the written buyer/tenant representation agreement, both the owner and the
"r             prospect previously authorized Broker to act as an intermediary if a prospect who Broker represents desires to buy or
               lease a property that is listed by the Broker. When the prospect makes an offer to purchase or lease the Property,
               Broker will act in accordance with the authorizations granted in the listing agreement and 1n the buyer/tenant
               representation agreement.

        D.     Broker   0  will [fil will not appoint licensed associates to communicate with, carry out instructions of, and provide
               opinions and advice during negotiations to each party. If Broker makes such appointments, Broker appoints·
               _____________________________ to the owner: and

               - - - - - - - - - - - - - - - - - - - - - - - - - - - - - t o the prospect.
        E.     By acknowledging receipt of this notice, the undersigned parties reaffirm their consent for broker to act as an
               intermediary

        F      Additional information: (Disclose material information related to Broker's relationship lo the parties, such as personal
               relationships or prior or contemplated business relationships.)




        The undersigned acknowledge receipt of this notice

              lb
        Seifer or Landlord
                                               >
                                                                   Date                                                                                      Date
        VSDH Vaquero Venture Ltd.


        Seller or Landlord                                         Date                                                                                      Date
                                                                                                       Betsy L. Gross

        (TAR-1409) 1-7-04                                                                                                                              Page 1 of 1
     Vaquero Residential Realty 1405 Fountain Grass Ct., Westloke TX 76262
     Phone:8174306600                Fax. 817-430-6601             Vaquero Residential Realty, LL                                                   VSDH Vaquero V
                            Produced with ZrpForm™ by RE ForrnsNet, LLC 18025 Fifteen Mile Road. Clinton Township, M1ch1gan 48035 www zipform.com
                                                           ADPENPUMA
        1.         BUY BACK OPTION: VSDH Vaquero Venture Ltd. (VSDH), as Soller, hereby
                   grants to Kenneth P. and l3etsy L. Groos (Gross), as Buyer, of2004 White Wins
                   Cove in Vaquoro subdivision, Westleke, Texas (tho Proporty) tho option (tho
                   ''Buy Back Qption'' to put tho Property to Seller (i.o., requlro Seller to repurohaso
                   the Property for Ute original "Soles Price" of $2,851,871.00) on Saptomber 1,
                   2009, or suoh oarlier dato "" may ho mutually agreed between Buyer and Seller, in
                   writing (tho ''Buy Back Date"), subject to tho followlnl! tenns and conditions:·

                   (a)-     DECLARATION DATE: On or bolbro May i, 2009, (tho '~laration
                            Date"), Buyer must oxeroJso th• lluy Back Option by dellvor!ng written
                            notice thereof to Seller (the "Buy Baok Option Notioo'?. 1f, for any
                            reason, Soller has not reoeived tho Buy Baok Option l\fotioo, on or before
                            S:OO, loco! tlmo ln Dallas/Port Worth, Toxas, on !ho Declaration Dare, !hon
                            Buyer &hall have waived the Buy l3ack Qption and same shall bo null
J                           avoid.                                                    ·

                  (b)         BUYER BXBRCISBS T.HE BUY BACK OPTION: IfBuyer timely and
                              properly exerolsos tho Buy Back Option, then the following shall opply:
                              (I) Buyer may. not sell or convey any right, title or interest in and to the
                             Property to any third par!Y unl688 Seller breaches its obligation to
                             repurohase tho Property pursuant to tho Biiy Baok Option due to no foul!
                             of Buyer; (ii) Soller may eoJnmonco marketing the Property· for aalo on
                             May 2, 2009, and Buyer agrees to fully eooperato with all marketing
                             of!brta of Seller; and (Iii) on or before September 1, 2009, unlosa Buyer
                             and Sellar   •fl!'.••
                                               upon another stated date in writing, Buyer shall vacate the
                             Property and deliver t\J.tl poaaeaslon thare<>f to Seller, and tho Property
                             shall be in the sumo condiilon as existed on tho original Closing Dato, plus
                             aey Seller approved improvements, leas reasonal>le wear and tear, with all
                             mechenloal, oleotrioal, plumbing and other systems and components Jn
                            good working order and in a ''broom-oloan". concllt!on. Prior to tho
                            Deolatatlon Date, tho Buyer can enter lnto a eontraot to tho sell tho
                            Proporty and will ho ont!Ued to all proeeeda from auoh sale. Should tho
                            Buyer enter into a contraot to sell the property, tho Buy Baok Option wlll
                            immedlatoly 1onninato and will no longer be available to Buyer. If,
                            however, Buyer timely and properly elects to invoko tho Jluy Back Option
                            and tho closing of tho repurohaao takes place, then Buyer waives and
                          · relinquishes any and all claims they may have to any proceeds from tho
                            subsequent sale oftho Prop&rty by Soller, and Buyer shall not be llablo fur
                            any loSi ln0U1Ted by Soller from tho subsequent aalo of tho Proporty.

                 (c)      CASUALTY: If the Property is qumaged by fire or other casualty the cast
                          ofwhich to repair is equal to or greater fh\ln $100,00.00, thon,.lle!lw ma,,


                                                                                          !!!: ,/\/""-
                          •I ii• opllo•1 oleet to oilhor (i) doe!.,.• tho Buy-Baek Qpllonfull ll!'d void,

    .        .                                             Pagolof(1 /<fy
                                                                        .                             ~               ..
    C1\Dotumenl51Uld Sel8JJgidou_g'l!.QC;t] S~u-bip\T'tmp(ln:ry fotunctF!lr.1\0U<6A\AdMn \1111 A loOmta Contralltv3        '
    032N.'{SSPN).~                           -                                              .
        If the cost to repair is less than $100,000, then Buyer shall, at Buyer's sole
        cost and expense, repair and restore the home to its prior condition in
        order for Buyer to have the right to exercise the repurchase option. If
        Buyer fails to timely and properly tepair and restore the Property prior to
        Buy Back option date, then Seller rnay tenninate the Buy Back Option.

 2.      BUYER"S IMPROVEMENTS: Before commencing construction, Buyer
        will review with Seller the plans and specification and receive general
        consent (consent not to be unreasonably withheld) to proceed with the
        improvements. Buyer will periodically (on a reasonable basis) update
        Seller regarding progress and timelines on completing the improvements.
        Seller understands that Buyer has the right to make minor changes and
        decisions during the process of completing the improvements provided
       they are in the best interest of completing the improvements in the most
        logical and reasonable manner. Buyer will also complete the
       improvements (i) in a good workmanlike manner, free from mateiial
       defects, (ii) in accordance with all laws, ordinances, statutes, rules,
       regulations and any and all restrictions and other matters of record
       applicable thereto; and (iii) free of any liens or claims of any kind or
       character, and Buyer shall absolutely and unconditionally save, defend, or
       indemnify and hold harmless Seller from and against any and all
       reasonable attorney's fees and disbm·sements and all damages which may
       arise by reason of Buyer's performance of any work thereto or Buyees
       failure to do as required hereby or the Escrow Agreement (hereinafter
       defined).

3.    ESCROW AGREEMENT: The attached Addendum B is a spreadsheet of
      improvements and costs proposed by the Buyer to be made to the
      Property. A total of$156,871.00 of these improvements has been
      incorporated into the $2,851,871.00 Sales Price. Buyer agrees to escrow
      funds totaling $156,871.00 with the Title Company and enter into an
      Escrow Agreement (herein so called), acceptable to Seller and Buyer, that
      outlines the proposed improvements to the property and the disbursement
      of such funds. Buyer accepts risk of any improvement cost overruns in
      excess of$156,871.00, however, ifimprovements costs do not exceed the
      $156,871.00 allocated budget, Buyer may use the remaining funds and
      apply to other imp1·ovements not specified in Addendum B.

4.    Douh Hickok and Van Shaw as partners in VSDH Vaquero Venture Lts.
      Each hereby personally guaranty Seller's obligations under the Buy Back
      Option granted from VSDH to Buyer hereunder. Jn the event VSDH fails
      to perform fully under the tenns of the Buy Back Option, each of its
      partners set forth herin above shall be personally responsible, jointly and
      severally, to perfonn the obligations ofVSDH under the Buy Back
      Option.
    5.     Buyer reserves the right to cancel Buy Back Option after the declaration
           date provided that Seller bas not entered into a purchase contract with a
           third party on 2004 White Wing.

    In addition, in paragraph 15 in the body of the contract under DEFAULT, Seller
    reinstates language stricken "seek such other relief as may be provided !zy law, or
    both:"




1
                               FIRST AMENDMENT TO NEW HOME CONTRACT


          THIS FIRST AMENDMENT TO NEW HOME CONTRACT (the "Amendment'') is entered into
  by and between VSDH VAQUERO VENTIJltE, LTD., a Texas limited partnership (the "Seller''), and
  KENNETH P. GROSS and BETSY L. GROSS (collectively, the "Purchaser'').

                                                      WITNESSETH:

          WHEREAS, Seller and Purchaser entered into that certain New Home Contract dated effective as
  of June 4, 2007 (the "Contract"), providing for the sale by Seller to Purchaser of a tract of land located at
  2004 White Wing Cove, Westlake, Tarrant County, Texas (the "Property'') and being more particularly
  described in the Contract; and

           WHEREAS, Seller and Purchaser desire to amend the Contract as hereinafter set forth.

          NOW, THEREFORE, based on these facts and in consideration of the mutual benefits to be
  obtained by this Amendment, Seller and Purchaser agree as follows:

            1.        Amending Provisions. The Contract is herepy amended as follows:

          (a)      Paragraph 9.A. of the Contract is hereby amended to provide that the date and time for
 the closing to be fully consummated and funded shall b.e extended to occur on or before noon on Friday,
 June 29, 2007 (the new "Closing Date"); provided, however, that as a Condition Precedent (herein so
 called) to such extension, Purchaser and Seller hereby agree that Purchaser shall deliver to the Title
 Company the following: (i) a fully executed copy of this Amendment; (ii) a or a wire transfer or cashier's
 check made payable to the Title Company, in the am01mt of Fifty Thousand and No/100 Dollars
 ($50,000.00), which shall be added to and comprise a portion of the earnest money being held under the
 Contract; (iii) a cashier's check made payable to Seller, or a wire transfer to the Title Company in care of
 Seller, in the amount of Eight Thousand, Five Hundred and Noll 00 Dollars ($8,500.00) as a non-
 refundable extension fee which shall lll)t be credited toward the Sales Price (the "Extension Fee''). In
 addition, the Extension Fee shall be increased 1'y Five Hundred and No/100 Dollars ($500.00) for each
 day after June 29th that passes until the closing is fully consuinmated and funded, and Purchaser shall pay
 same to Seller no later than at closing.

           (b)     Inasmuch as Purchaser was not ready, willing or able to consumniate the closing as. and
 ·when required by the Contract and Seller has already tendered full performance of its closing obligations,
  this Amendment constitutes an offer by Seller .to extend the Closing Date, and if this Amendment is not
. fully executed and deliverea by Purchaser to. Seller and the Condition Precedent is not fully satisfied on or
  before 4:00 p.m. local time in Dallas, Texas on. June 20, 20Q7, then the following shall automatically
  apply: (i) Seller's offer to extend the Closing Date shall be fully rescinded, (ii) Purchaser shall be in
. default under the Contract, (iii) Seller shall be deemed to have terminated the Contract and entitled to
  retain all of the earnest money on deposit with the Title Company, and (iv) Purchaser shall vacate the
  Property.

          (c)       There are no other amendments.

         2.       Consequence of Amendment. Nothing in this Amendment affects or modifies any of the
provisions of the. Contract, except as expressly provided herein. The Contract, as amended by this
Ameodment, will continue in full force and effect and is ratified and affirmed by Seller and Purchaser as
if originally written as herein amended.


                                                            Page 1 of3

C:\Documents and Settings\doug\Local Setrings\Temporary Internet Fites\OLK6A\Ist Amendment to Contract v2 061907(SSFN).doc:
                                                                                                                              EXHIBIT
                                             ----           ------------·-- -




            3.        Miscellaneous.

          (a)     The section headings contained in this Amendment are for convenience ofreference only
  and are not intended to delineate or limit the meaning of any provision of this Amendment or to be
  considered in construing or interpreting the provisions of this Amendment. Capitalized terms used in this
  Amendment which are not otherwise defined hereiri shall have the same meiµring as given to, them iri the
  Contract

          (b)      This Amendment may be executed in any number of counterparts, separately or together,
  by Seller and Purchaser. If counterparts hereof are executed separately by :Purchaser and Seller, when
  taken together, same will constitute one (1) original. If the same counterparts are eilecuted by Purchaser
  and Seller, then each such counterpart shall constitute an original. Seller and/or Purchaser may execute
  and deliver this Amendment by telephone facsimile transmission, and the receiving party may rely fully
  thereon as an original.

         (c)      This Amendment embodies the entire agreement and understanding l)etween 'PurchaSer
 and Setler with respect to its subject matter and supersedes all prior agreements and understandings,
 written or oral, between Purchaser and Seller related to that subject matter. This Amendment may be
 amended, waived or discharged only by an instrument in writing executed by the party agairist which
 enforcement of the amendment, waiver or discharge is sought.

         (d)     The determination that any provision of this Amendment is invalid or unenforceable will
 not affect the validity or enforceability of the remaining provisions or of that provision under other
 circumstances. In the event of any determination of invalidity or unenforceability, this Amendment will
_be construed as if the invalid or unenforceable provision were not included in this Amendment.

           EXECUTED as of (although not necessarily on) the 12th day of June, 2007.

                                                               SELLER:

                                                              VSDH VAQUERO VENTURE, LTD,,
                                                              a Texas limited partnership

                                                              By:       VSDH Homes, Inc.,
                                                                        a Tei<as corporation, its General Partner




                                                                                        lr------
                                                                        By: _ _ _ _ _ _ _ _ _ _ _ _ _ _                      ~



                                                                                  Douglas M. Hickok, ViCe President




                                                           Page 2 of3

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                                                 ---------------



                                           .                                       ili
             EXECUTED as of (although not necessan1y on) the 12 day of June, 2007.

                                                                 PURCHASER:




                                                                 KENNETH P. GROSS




                                                            Page 3 of3

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                                                                                                              . .....- .... -   --

                                                       @l>ENDDMA

        t.            BUY BACK OPTJ'.ON: VSDH Vaquein Ven!w'O Ltd. (VSDH), as SoJ!et, heRby
                       grants to Kllll!10fh P. and Betsy L. Groa$ (Gwas), ~ Bllyor, of 2004 Wlille ~
                      Cow in V,.quoi:o sub~ W~laki!. ~ (tlte~):!M QPtlon (tho
                      "Buy B'IClt Oi>1ioli? topJ!t1hol'mperl;Y to Sl!)lor (f~,:tequl~ $ellerto 1'Cjll1l'cillag
                      tho P:toperty for tho o1!8jual "Sales l'rlee'' of $2;851,871.oo) on September l,
                      2009, or euoli elll"lietda(<Ja,may bo mutually agreed between~ and Seller, in
                      wziling OM "Bill' llaokD~'). subject to tho f0110Wingtenns aru!Col!d!tlons:·

                      (a)·     Dl!CLAMTlON DATE: On or be1l!1'o May i, 2009, @a "l>Colatafion
                               Dl\IO''), Buyor muet ex«olse·the Buy Back ClPtion fly • • writw.n.
                               notice thereof to Seller (tho "Buy Baok Option No~?. ~ :8>r sny
                               muon, Sollet hall nol teeelved tllll Buy Baok Op~ NOl!OO, on or belb.16
                               5:00, 1ooal lime hi DallM!llort Worth, Texas, on tho Declaration Date, th$1
                               Buyer Shall have waived 1ho Buy Bao!t O,plion and smne aJWl be null
                               avoid.                                      ·

                      (b)        BUYl!R BXRR.CJSBS Tf1B BUY BACK OPTION: IfBuyer timely and ·
                                 properly exeroises the Buy BllCk Oj)llon, tl\on tho following sball apply:
                                 (i) Buyer may. nol se11 or OOJtVoy any right, title or interest in and lo tho .
                                 Property to any lhinl party unless Sollor broaches ifs oblfgajlon to
                                 repurchaao lho Properly pumlllltto lllo Buy Baok Op!lon due to no iim1t
                                of Buyer; 61) Sell61' may C<lll.1l!W!lOO marketing tM Pxoperty' fot sale an
                                May 2, 200!>, and Buyor agrees to fully oooper11to with alt mad<eling
                                effilrts of seller; and (ill) 011 or before Sepfelllber 1, 2009, unless Buyer
                                and Soller apupo11 ml01het s!aled date in wrlling, Buyei' aball wa~ tho
                                Property attil. ~iver full possmloll thereof to S~1!ilr. end Iha Properly
                                shall be in th4samo condition u oxlsted Oil tho ollglnal Closing Dall>, plus
                                any Soll£ approved lmprovemenls, lesa roaso.nabh> wear and tear, withal!
                                mechanlll41, ele<ltrlcal, plumbing and other sy_atems and compOMlll8 In
                                good Wondng order an,d in a ''btoom-olean". eoltdltton. P.tiot' lo 1ho
                               Dectarallon Dalo, tho Buyer can enter into a conmiot lo 1he sell the
                               l"..l'.IJ!)erty and will be enl!tlod lo all pmcteds from euoli Sl!to. Should lite
                               Buyer enfer into a oonttaot lo soil !he p.mpt.rt~ tho :auyB$Ck Option will
                             · lmmecllalely terminate and will no lOll8"f be availmlo 1o Buyol'. n;
                               hOWOV<lr, Buyer timely and properly oleofS to lnvokethe~uy Baok O,p!io11
                               and tho oloshig of ti» rep~ li!hs place, then Buyer waives. and
                             · rellnquishea ~ and all olah!is the)' may blwe lo any ~s Jh>lll tho
                               aubseqlU:llt aato 0£111& Pmpertyb.y sener. and Duy« shall not be l!db1o !bi
                               aey loss lncutted by Seller flom tho subsequent aale ofthol'!pperly.
                 (e)          CASUAL'l'Yi If thol'toperty is ~amaged by fire or othor ossualtytho cost             1_   l//-ltJi<
    .                        :::!;~"l:!=::~~~::tho~:~~Fi== ~\·
.            .                                         l'Pgelo(f~ "'~ ~~
•· ~Sot~~~-l'UK'.OU<O~A~a.:;.;:-v3
 ....,.,,~    -                                                                                       .
                 ·•



                                                                                                                                     ···- -··-- .. _ _j.
             Jftho cost to repair la loss than $100,000, thenBuye.r shall, at Buyer's &0lo
             cost and~ repair andJC.1tOre the home to il3 prior condllon in
             orderfbr Buyer to have therlght to eir.erclsetbe MJljJTCM!"' option. Jf
             Buyer fidJs to 1im.ely andpl'Q,Jl!'tly repair and restdrothe llrop~ prior to
             Buy Back option~ tlienSell!it.l!lilYtenninate the Buy BsCk Option.

     2.       BUY.ER"S ~V£M!Wl'$: Belhre commencing conslrucdon, Buyer
              Will reY:iew •Sellar tho plans and spcclficatlon ll!ld ieaclvo general
              COJl!!Cllt (CO)IScdt not to be u~ly withbeld;) to proceed with the
              in!plovemell!& BIJFwillperlodlca\ly(Qn a.retllfollable bssls) update
             .Seller ~!!~gress and llmelfn-...(!11 completing the impravemems.
              Seller un .       ·· · tliat Buyer bas therlglit to mab:mlnor cl:ulnges and
             decisions ~tho procci!ls ofeomp.teling1he improvements provlded
             1hey .are In the best interest ofcompletlugtlu! improvements in the most
             loglcal and reasonable lllllllJlCl'. Buyer will also complete the
             improvements (I) in a good WQr!nnanllke manne,r, free Jiom materlal
             defects, (ii) in acco!dlll!Ce with all Jaws, ordinances, stalnles, tllles,
            regulations and any and all restriot!OJJS and oilier matters ofrecord
            appll~ thereto; lll!d (iii) fteo oflUIY liel)s or claims ofany kind or
            cbaractc;t, l!J1dB~ shall absolutely and 1111COlldilionslly save, defend, or
            lndemniff ruufrolilibmmlcss Seller 1i'om and against any and all
            reasonable attomey!11 :fees anddisbursementa attd all damages whlclt may
            atlse by reason ofBuyer's perfurmanee of any work thereto or Buyer's
           ·:liiilure to do BB required he!eby or the Escrow Agreement (hereinafter
           defined).

 3.




4.        Doub IDclcok and Vl!A;~ as partners in VSDH Vaquero Vemure Liii.
          Bachhereby~piran1y ~s obligations under the Buy Back
          Option~~ VSDH to Buyer hereunder. In thcevet!t VSDHf1Ws
          to potfurm~ under tbe leanso:f;the Buy Back OptWn, each ofits
          partners $et :ll:!rllt he.tin abo~ shall be perst1tt•lly responsible, jointly and
          tieverally, to plll'1Wm the obligations ofVSDH under the Buy Back
          Option.
 Stone Labor - W.all-Off A/C
  Stone Border Around Front Patio
. Stone for Front Patio Gate - Material & Labor




 14 Linear Feet in Great Room
 1O Linear Feet in Game Room                                               2,500
 1() Linear Feet In Caslta                                       2,500
 Paint & Stain                                    Unit    $     Addition   Other    Buyer Option
 Paint & Stain - Addition & New Cabinets          1092           6,552
 Paint - Master                                     1
 Paint- Fo er                                      1
 Paint-FR                                          1
 Paint- Halls
 Paint - Stairs                                    1




                                                         3000              1,50()
                                               LAW OFFICES
                                                   OF
                                                VAN SHAW

                                               ATTORNEYS AT LAW
          VAN SHAW•
        JANET R. RANDLE                      2723 FAIRMOUNT
                                           DALLAS, TEXAS 75201
                                                                                'iliiitma•n PARALEGALS
      • BOARD CERTIFIED IN                     (214)754-7110
                                                                                      RHOND      CENT
         PERSONAL INJURY                   FAX NO. (214) 754-7115                      LORI G. MOORE
        •CERTIFIED PUBLIC                www.shawlawoffice.com                        APRILS. SUMNER
           ACCOUNTANT


County Court at Law No. 1                                April 30, 2010
509 Main Street                                          VIA HAND DELIVERY
Records Building                                         ---Phone (214/653-7556)---
Dallas, TX 75202

RE:      Cause No. CC-09-05232-A;
         VSDH Vaquero Venture, Ltd. v. Ken Gross and Betsy Gross

Madam:

Enclosed via hand delivery is the following:

1)       Plaintiff's First-Amended Petition.

Please file the same with the Court's records and return a file-marked copy to the undersigned.

By copy of this letter, a true and correct copy of the above instrument was this date forwarded to all
counsel of record.

Thank you for your assistance.




Enclos

cc:      See attached Service List.




VS.ltr2Ct.Ans2Cclaim
                                  SERVICE LIST


Mr. R. Brent Cooper                       FAX (2141712-9540)
Ms. Jana Starling Reist                   =PH (2141712-9500) =
COOPER & SCULLY                           brent.cooper@cooperscully.com
900 Jackson Street, Suite 100             j ana.reist@cooperscull y. com
Dallas, Texas 75202

       Attorney for Defendants Kenneth P. Gross and Betsy L. Gross

********************************

Van Shaw represents PlaintiffVSDH VAQUERO VENTURE, LTD, Intervenor, DOUG
HICKOK, Intervenor, VAN SHAW and Third-Party Defendants VSDH VAQUERO
HOMES, INC. and VSDH HOMES, INC.
TAB 8
                                   CAUSE NO. CC-09-05232-A

VSDH VAQUERO VENTURE, LTD.,                     §
     Plaintiffs/Counter-Defendant,              §
                                                §
v.                                              §
                                                §
KEN GROSS and BETSY GROSS                       §
    Defendants/Counter-Plaintiffs,              §                            AT LAW NUMBER I
                                                §
v.                                              §
                                                §
EVAN L. SHAW and DOUGLAS M.                     §
HICKOK                                          §
     Intervenors/Counter-Defendants.            §                    DALLAS COUNTY, TEXAS
                                                §

    KEN GROSS' AND BETSY GROSS' SECOND AMENDED COUNTER-CLAIM
  AGAINST VSDH VAQUERO VENTURE, LTD., EVAN L. SHAW AND DOUGLAS M.
   HICKOK AND FIRST AMENDED THIRD-PARTY PETITION AGAINST VSDH
             VAQUERO HOMES, INC. AND VSDH HOMES, INC.

TO THE HONORABLE JUDGE OF SAID COURT:

         COMES NOW, Kenneth P. Gross and Betsy L. Gross, Defendants/Counter-

Plaintiffs/Third-Party Plaintiffs (collectively referred to as "the Grosses"), and hereby files their

Second Amended Petition Against VSDH Vaquero Venture, Ltd., Evan L. Shaw and Douglas M.

Hickock (collectively referred to as "Counter-Defendants") and First Amended Third-Party

Petition Against VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. (collectively referred to as

"Third-Party Defendants"), and for such would respectfully show the Court as follows:

                                                    I.
                                 DISCOVERY CONTROL PLAN

             I.   The parties have entered into an Agreed Level 3 Discovery Control Plan pursuant

to Tex. R. Civ. P. 190.4.




COUNTER-PLAINTIFFS' SECOND AMENDED COUNTER-CLAIMS AND FIRST AMENDED THIRD
PARTY PETITION                                                         Page 1
D/767482.1
                                                  II.
                                     PARTIES AND SERVICE

         2.       Plaintif£'Counter-Defendant VSDH Vaquero Venture, Ltd. is a Texas Limited

Partnership who is represented by Evan L. Shaw in this action.

         3.       Defendant/Counter-Plaintiff/Third-Party Plaintiff Kenneth P. Gross 1s an

individual who has appeared in this action and is represented by the undersigned counsel.

         4.       Defendant/Counter-Plaintiff/Third-Party Plaintiff Betsy L. Gross is an individual

who has appeared in this action and is represented by the undersigned counsel.

         5.       Intervenor/Counter-Defendant Douglas M. Hickok ("Hickok") is a Texas resident

who has appeared in this action and is represented by Evan L. Shaw in this action.

         6.       Intervenor/Counter-Defendant Evan L. Shaw ("Shaw") is a Texas resident who

has appeared in this action and who is representing himself in this action.

         7.       Third-Party Defendant VSDH Vaquero Homes, Inc. 1s a Texas General

Partnership whose principal place of business is at 5305 Village Creek, Plano, Texas 75093. It

may be served with process by serving its President, Douglas M. Hickok at 5305 Village Creek

Drive, Plano, Collin County, Texas 75093.

         8.       Third-Party Defendant VSDH Homes, Inc. is a Texas General Partnership whose

principal place of business is at 5305 Village Creek, Plano, Texas 75093. It may be served with

process by serving its Registered Agent and President, Douglas M. Hickok at 5305 Village Creek

Drive, Plano, Collin County, Texas 75093.

                                                 III.
                                  JURISDICTION AND VENUE

             9.   The subject matter in controversy is within the jurisdiction limits of this Court.

The Court has jurisdiction over VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. because

they are Texas general partnerships.
COUNTER-PLAINTIFFS' SECOND AMENDED COUNTER-CLAIMS AND FIRST AMENDED THIRD
PARTY PETITION                                                         Page 2
D/767482.1
         10.       Venue is proper with regard to this third-party action under section 15.062 of the

TEXAS CIVIL PRACTICE & REMEDIES CODE, as the transaction giving rise to this third-party action

arises out of the same transaction, occurrence, or series of actions or occurrences.

                                                 IV.
                                                FACTS

         11.       On or about June 4, 2006, the Grosses entered into a New Home Contract

("Contract"), promulgated by the Texas Real Estate Commission, with Counter-Defendants and

Third-Party Defendants for the purchase of 2004 White Wing Cove, Westlake, Texas 76262

("the Property"), in the amount of $2,851,871.00. (A copy of the Contract has been attached

hereto as Exhibit"!," and is incorporate herein by reference for all pertinent purposes).

         12.       The Grosses purchased the Property at the full listed price of$2,851,871.00, even

though the Property had been listed for two years, due to the fact that Counter-Defendants agreed

to enter into a "Buy Back Option" with the Grosses.

             13.   According to paragraph I ("Buy Back Option") of Addendum A of the Contract,

VSDH Vaquero Venture, Ltd. granted to the Grosses, as Buyers of the Property, the "the option .

. . to put the Property to Seller [VSDH Vaquero Venture, Ltd.] (i.e. require Seller to repurchase

the Property for the original "Sales Price" of $2,851,871.00) on September I, 2009, or such

earlier date as may be mutually agreed between Buyer and Seller .... " See Addendum A to

Exhibit I.

             14.   Hickok and Shaw are limited partners of VSDH Vaquero Venture, Ltd. and

participated and controlled Counter-Defendants and Third-Party Defendants sell of the Property

to the Grosses and benefitted from the sell to the Grosses.




COUNTER-PLAINTIFFS' SECOND AMENDED COUNTER-CLAIMS AND FIRST AMENDED THIRD
PARTY PETITION                                                         Page 3
D/767482.1
           15.     Further, according to paragraph 4 of Addendum A, Hickok and Shaw both agreed

to be personally responsible, jointly and severally, in the event VSDH Vaquero Venture, Ltd.

does not fully perform under the terms of the Buy Back Option.

           16.     Under the signature line of the Contract, VSDH Homes, Inc. is listed as the

general partner ofVSDH Vaquero Venture, Ltd. However, according to the Texas Secretary of

State's office, VSDH Vaquero Homes, Inc. is listed as VSDH Vaquero Venture, Ltd.'s general

partner.

           17.     In accordance with the terms of the Buy Back Option, the Grosses exercised the

Buy Back Option by delivering written notice to Shaw and Hickok before May 1, 2009 of the

Grosses' intent to sell the Property back to Counter-Defendants and Third-Party Defendants.

           18.     However, Shaw and Hickok communicated to the Grosses that Counter-

Defendants and Third-Party Defendants do not intend to buy the Property back and perform their

contractual obligations as required under Addendum A to the Contract. Counter-Defendants and

Third-Party Defendants failed to purchase the property back.

             19.   The Grosses therefore seek construction of the Contract, including Addendum A,

to determine whether or not Counter-Defendants and Third-Party Defendants breached the

Contract by refusing and failing to buy the Property back from the Grosses pursuant to the

Contract for the original sales price of $2,851.871.00.

           20.     In an effort to mitigate their damages and avoid foreclosure of the home, the

Grosses sold their home for $2,415,600.

                                                  v.
                                   DECLARATORY JUDGMENT
           21.     All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section.

COUNTER-PLAINTIFFS' SECOND AMENDED COUNTER-CLAIMS AND FIRST AMENDED THIRD
PARTY PETITION                                                         Page 4
D/767482.1
         22.   This is an action for declaratory judgment pursuant to the Texas Declaratory

Judgment Act, Ch. 37.001 et. seq. of the TEX. C1v. PRAC. & REM. CODE, for the purpose of

determining an actionable and justiciable controversy between the parties, as hereinafter more

fully appears. The controversy involves Counter-Defendants' and Third-Party Defendants' duty

to perform their obligations arising under the "Buy Back Option," Addendum A, to the Contract.

         23.   Based upon the clear terms of Addendum A to the Contract (Exhibit 1), Counter-

Defendants and Third-Party Defendants were obligated to buy the Property back from the

Grosses pursuant to the terms of the Contract for the original sales price of $2,851.871.00.

         24.   Accordingly, the Grosses seek a declaration from this Court, as follows:

               I.      VSDH Vaquero Venture, Ltd. was obligated to buy the Property back
                       from Kenneth P. Gross and Betsy L. Gross on or before September 1,
                       2009 for the original sales price of $2,851,871.00

               2.      In the event VSDH Vaquero Venture, Ltd. failed to timely buy the
                       Property back from Kenneth P. Gross and Betsy L. Gross, Douglas M.
                       Hickok and Evan L. Shaw were personally responsible, jointly and
                       severally, to buy the Property back on or before September I, 2009 for the
                       original sales price of $2,851,871.00.

                                                VI.
                                   BREACH OF CONTRACT

         25.   All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section.

         26.   As stated above, the Grosses entered into a valid and enforceable contract with

Counter-Defendants and Third-Party Defendants. See Exhibit I. The Grosses have fulfilled all

requirements, statutorily and in accordance with the terms of the Buy Back Option, by delivering

written notice to Hickok and Shaw before May 1, 2009 of the Grosses' intent to sell the Property

back to Counter-Defendants and Third-Party Defendants. Counter-Defendants and Third-Party

Defendants have materially breached the Contract in that they have repudiated the contract and

COUNTER-PLAINTIFFS' SECOND AMENDED COUNTER-CLAIMS AND FIRST AMENDED THIRD
PARTY PETITION                                                         Page 5
D/767482.I
failed to proceed with the purchase of the Property.          Counter-Defendants' and Third-Party

Defendants' breach has proximately caused the Grosses' damages.

         27.   The Grosses request that a judgment be entered against Counter-Defendants and

Third-Party Defendants for actual damages.        As a direct and proximate result of Counter-

Defendants' and Third-Party Defendants' failure to perform under the Contract, the Grosses have

been damaged in an amount in excess of the jurisdictional limits of the Court, for which they

seeks appropriate judicial relief.

                                                vu.
                        FRAUD IN A REAL ESTATE TRANSACTION

         28.    All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section.

         29.    The Grosses will show that Counter-Defendants' and Third-Party Defendants'

conduct constitutes fraud in a real estate transaction as defined by Section 27.01 of the TEXAS

BUSINESS & COMMERCE CODE. Counter-Defendants' and Third-Party Defendants' made a false

representation that they would buy the property back pursuant to the Buy Back Option in order to

induce the Grosses to enter into the Contract.        The Grosses entered into the Contract and

purchased the Property at the full listed price of $2,851,871.00, even though the Property had

been listed for two years, due to the fact that Counter-Defendants and Third-Party Defendants

made the false representation that they would buy the property back pursuant to the "Buy Back

Option." The Grosses' reliance directly and proximately caused them substantial injury, as set

out above, for which they seek appropriate judicial relief.

         A.     Attorneys' Fees

         30.    The Grosses have retained the law firm of Cooper & Scully, P.C. to represent

them in this action and have agreed to pay the firm reasonable and necessary attorneys' fees.

COUNTER-PLAINTIFFS' SECOND AMENDED COUNTER-CLAIMS AND FIRST AMENDED THIRD
PARTY PETITION                                                         Page 6
D/767482.1
         31.     The Grosses are entitled to recover reasonable and necessary attorney fees that are

equitable and just under TEXAS CIVIL PRACTICE & REMEDIES CODE§ 38.001 because it is a suit

for breach of a written contract, and under TEXAS BUSINESS & COMMERCE CODE §27.0l(e)

because this is an suit for statutory fraud. All conditions precedent to the collection of attorneys'

fees have been satisfied.

         B.      Conditions Precedent

         32.     All conditions precedent to the Grosses claims for relief have been performed or

have occurred.

         WHEREFORE, PREMISES CONSIDERED, Defendants Kenneth P. Gross and Betsy

L. Gross pray that their counterclaims against VSDH Vaquero Venture, Ltd., Shaw and Hickok

and third third-party claims against VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. be

granted; that upon final hearing of this matter, a declaratory judgment is entered as enumerated

above; that the Grosses have and recover damages in an amount within the jurisdictional limits

of this Court; pre- and post-judgment interest at the highest lawful rate; attorneys' fees and court

costs; exemplary damages; and such other and further relief, whether special or general, to which

the Grosses may show themselves justly entitled.




COUNTER-PLAINTIFFS' SECOND AMENDED COUNTER-CLAIMS AND FIRST AMENDED THIRD
PARTY PETITION                                                         Page 7
D/767482.1
                                          Respectfully submitted,

                                          COOPER & SCULLY, P.C.



                                                 R.
                                                 St e Bar No. 04783250
                                                 JANA STARLING REIST
                                                 State Bar No. 24056890

                                          Founders Square
                                          900 Jackson Street, Suite 100
                                          Dallas, Texas 75202
                                          Telephone: (214) 712-9500
                                          Facsimile: (214) 712-9540

                                          ATTORNEYS FOR DEFENDANTS
                                          KEN GROSS AND BETSY GROSS




                               CERTIFICATE OF SERVICE

       The undersigned certifies that a true and correct copy of the foregoing document was
forwarded to all counsel of record herein, on this the 2ND day of June 2010 as follows:

         Evan Lane (Van) Shaw (via facsimile and CMRRR)
         Law Offices of Van Shaw
         2723 Fairmount Street
         Dallas, Texas 75201
         Attorney for Counter-Defendants




COUNTER-PLAINTIFFS' SECOND AMENDED COUNTER-CLAIMS AND FIRST AMENDED THIRD
PARTY PETITION                                                         Page 8
D/767482.1
                                                                                                                       ... }



                                  PROMULGATED BY THE TEXAS REAL ES\ATE COMMISSION (TREC)                                                             02-13.06
                                                        .      NEW HOME CONTRACT
                                                                    (Completed Constmctf~n)                      ·
                      NOTICE: Not For Uoe for CondomlofumTransactrons or CIO!ilr\gll Ptlcr to Cornpf2Uon ofConstrucUon
   1~   PARTIES:                                  VSDH Yf!lqtliti> venture I.td                                                                      (Seller)
        agreeslosellandconveytoRennat:h P. Gross and Betsy L. Gross
       - - - - - - (Buyer) and Buyer agrees to bey from Seller tho Property described below.
   2. PROPERTY: Lot                   11         , Block                         ,                      Vaquero )lesidentia.1
       Aqd!Uon, Clly of                !Iest1ake                , Counly of                            !farrent                           , Texas, known as
       2004 !!bite Wing Cova                                                                     7§2€2 (addressfZip code), aras described on
       attached exhibit, together with: (Q Improvements, fixtures and all other property focafe\i thereon; and Qi) all rights,
       privileges and appurtenances !hereto, fncfadlng but not llmlfed to: permits, easemenls, and ccoperafive and
      association memberships. NI property sold by !his cont-aot Is called the "Property''.                                           17      '· q ,.. ~      0
  3. SALES PRIG!::                                                                                                                       "l.j~ •1° 0 ' 0
      A. Cash portion of Sales Prloepayable by Buyer at closing ................................................. $                      z ,851 871. OO·
      8. Sam of all financing descdbed below (excluding any loan funding ree>                                               .. $ V' 7 (,,<\.>~ .,..., .., ~
                    .                                                    .
           or morrgage lnsuranoe premium) ..............................., .................,................................... W         1        •    • .
      O. Sales Price (Sum of A and B) ........................................................................................... $      g , a!U ,en . Mr
  4. FINANCING: The portlon of Sales Prtoe not payable in cash will be paid as folfows; (Check appficable boxes ~loW)
      O A. THIRD PARTY FINANCING: One or more third· party mortgage loans in the toial amount ·of
                $                                   (excluding any loan funding fee or mortgage Insurance premium).
                (1) Property 'Approval: If the Property does not satisfy the lenders' underwriting requirements for lite loan(s),
                    this contract wm termlnate and the eamest money will be refunded to Buyer.
                (2) Flnanolng Approval: (Check one box only)                                 . ·                               .                      ·
                    D (a) This contract Is subject to Buyer being approved for the financing dascrlbed In the attached Third
                           Party Financing Condltlon Addendum.
                    O {b)Thfs contract Is not subject to Buyer being approved For financing and does. not Involve FHA or VA
                           financing.
     D 8. ASSUMPTION: The ilSSUmptlon of the unpaid principal balance of one or more proin!ssory no\es described In
               the attached TREC Loan Assumption Addendum.                                                         ·
     O c. SEl.LER FINANCING: A promissory note flom Bayer to Seller of$                                           .                                          ,
              secured by vendots and deed of trust liens, and containing the terms and ocndltlons descdbed In the a!lached
              IBEC Seller Financing Addendum. ff an owner policy of Ufta Insurance rs furnished, Buyer shaU fUrnlsh Seller
              wlih a mortgagee policy of ttfie Insurance.                                                                                        "'       ...
 e. !:At!NEST MONE:Y: Upon execuUon of this contract by bolh parties, Buyer shall deposit .$-SO« ooo: ·o.o ·                                              '
     as earnest money with                             Chioacro IJ!i f.le Comoanv                                                   , as escrow agen~ at
                                        6688 'N, Cantra,l #560. Dallas. TX 75206
    (address). Buyer shaU.deposit additional earnest money of$                                                                  with ascrow agent within
   .,,.--- days after the.effective date of this contract. If Buyer falls to daposlt the earnest money as required by
    this contract, Buyerwlll be In deiault
$, TITLE POLICY AND SURVEY:
   A..TITLE:POUCY: Seller shalt tumlsh to Buyer a! fiil Seller's I:I Buyer's .expense· an owner··pallcy·of.iltle ..
        Insurance (Tiiie Palley) issued by ~Ch~i~o~a.,a;,,a,_...~~it~l~e~C.,om.,,p,.a~n"'y'-----=---~~---­
        - - - - - - - - - - - - - - - - - - - - - - - - (Tiiie Company) In the amoantof
        Iha· Sales Prtoe, dated at or after closliig, Insulins Buyer against loss under the provisions of the 11!\e Policy,
        subject to !he promulgated exclusions Qnc!udlng exisUng building and zoning ordinances) and the following
        exceplfons:                                                                                           ·            .
        (1) Res!rlcUve covenants common to the plaited subdivision In Which the Property !s locatad.
        (2) The etanderd prtnted excepllon for standby fees, taxes and asoessments.                                                                                 .•'
        (3) · Liens created as pa it of the financing deserlbed lh Paragraph 4.
       (4) Ullllty easements oreatad by lha dedication aeed or plat of Iha subdivision ln which the Property ls located.
       (6) Reser\laJlons or excepllons otherwfse·penn!Hed by this contract or as may be approved by Buyer In wrltlng.
       ($) The standard printed exception as to marifal rights.
       (7) The standard printed exception as to waters, tidelands, beaches, streams, and related matters.
       (8) The standard pnnted ·exception as to' discrepancies, oonfjiots, shortages In area or boundary Unee, .
            encroachments or protrusions.- or averlappln,g Improvements. Buyer, at Buyer's expense, may have !he
            exception amended to read, 'shortages In area".                                                                                 .
  B. COMMITMENT: Wilhln 20 d a ~r the Title Company receives a copy of !his contrao~ Seller shall furnish to
      B er a commitment tor tit                uran      Comml!menf an                          er's ex ense, I Ible co es of restrlotive




                                                                                                                                                        EXHIBIT
                                                                                                                                              I             ...J-
I                                                                 2004 White Wing Cove
          Contract Concernfng _ _ _ _ _ _ _ _~w~e~•~t,_l~a~k~e~T'C'X"-~7~6~2~6~2~-------- Page 2 of 9 02-13·06
                                                   {Address of Property)

                 covenants and documents evidencing exceptions fn the Commitment (Exception Documents) other than the
                 standard prtnted exceptions. Seller authorizes the Titfe Company to deliver the Commitment and Exception
                 Documents to Buyer at Buyer's address shown fn Paragraph 21. If the Commitment and Exception Documents
                 are not delivered to Buyer within the speclfled time, the time for delivery will be automaticalfy extended up to 15
                days or the Closing Date, whichever Is earlier. ·
            C. SURVEY: The suNey must be made by a registered professional land surveyor acceptable to the TI!le Company
                and any fender. (Check one box only)
                fill (1) Wrthln              7            days after the effective date of !his contrac~ Seller shall furnish to Buyer
                         and Title Company Seller's existing survey of the Property and a Residential Real Property Affidavit
                         promulgated by the Texas Department of Insurance (Affidavii). ff the existing suNey or Affidavit Is not
                         acceptable to Title Company or Buyer's lender, Buyer snail obtain a new survey at D Seller's !XI Buyer's
                         expense no later then 3 days prior to Closing Date, If Seller falls to furnish the existing survey or A.."fldavit
                        within the time prescribed, Buyer shall obtain a new suNey at Seller's expense no later than 3 days prior·
                        to Closing Date.
               D (2) Within                            days after the effective date of this contract, Buyer shall obtain a new survey
                        at Buyer's e~ense. Buyer is deemed to receive the survey on the date of actual receipt or the date
                        specified in this paragraph, whichever Is earlier.
               0 (3) Within                               days after the effective date of this contract, Seller, at Seller's expense,
                        shall furnish a new survey to Buyer.
            D. OBJECTIONS: Buyer may object in wliting to defects, exceptions, or encumbrances to title: disclosed on the
               survey other than items 6A(1) through (7) above; disclosed In the Commitment other than items 6A(1) through
               (8) above; or which prohibit the following use or a c t i v i t y : - - - - - - - - - - - - - - - - - -
               Buyer must object not later than (i) the Closing Pate or (ii)                7             days after Buyer receives the
               Commitment, Exception Documents, and the survey, whfchever is earlier. Buyer's failure to object within the time
               allowed will constitute a waiver of Buyer's right to object; except that the requirements In Schedule C the                    of
               Commitment are not waived. Provided Seller fs not obligated to incur any expense, Seifer shall cure ihe timely
               objections of Buyer or any third party lender within 15 days attar Seller receives the objections and the Closing
               Date will be extended as necessary. If objections are not cured within such 15 day period, this contract will
               termtnate and the earnest money will be refUnded to Buyer unless !luyerwalves the objections.
           E. TITLE NOTICES:
              (1)ABSTRACT OR TITLE POLICY: Broker advises Buyer to have an abstract of title covering the Property
                    examined by an attorney of Buyer's selection, or Buyer should be furnished with or obtain a Title Polley. If a
                    Tltle Policy Is furnished, the Commitment should be promptly reviewed by an attorney of Buyer's choice due
                    to the time limitations on Buyer's right to object.
              (2) MANDATORY OWNERS' ASSOCIATION MEMBERSHIP: The Property fill ls 0 Is not subject to mandatory
                    membership fn an owners' association. If the Property ls subject to mandatory membership fn an owners'
                   association, Seller notifies Buyer under §5.012, Texas Property Code, that, as a punchaser of property In
                   the residential community In which the Property is located, you are obligated to be a member of the owners'
                   association. Restrictive covenants governing the use and occupancy of the PropeJ1¥ and a dedicatory
                   instrument governing the establishment, maintenance, and operation of this rasfden!Jal community have
                   been or will be reconded in the Real Property Reocrds of the county in which the Property is located. Coples
                   of the restrictive covenants and dedicatory instrument may be obtained from the ocunty clerk. You are
                  obffgated lo pay assessments to the owners' association. The amount of the assessments Is subject to
                  change. Your failure to pay the assessments could result In a lien on and !ha foreclosure of the Property. If
                  Buyer Is concerned about these matiers, the TREC promulgated Addendum for Property Subject to
                  Mandatory Membership In an Owner's Association should be used.
             (3) STATUTORY TAX DISTRICTS: If the Property Is situated In a utility or other statutorily created dlslrtct
                  providing water, sewer, drainage, or flood control facilities and services, Chapter 49, Texas Water Code,
                  requires Seller to deliver and Buyer to sign the statutory notice relating to the tax rate, bonded indebtedness,
                  or standby fee of the distnet prior to final execution of this contract.                              ·
             (4) TIDE WATERS: ff the Property abuts the tidally lnfiuenced waters of the state, §33.135, Texas Natural
                  Resources Code, requires a notice regarding coastai area property to be Included in the contract. An
                  addendum containing the notice promulgated by TREC or required by the parties must be used.
             (5)ANNEXATION: If the Property Is located outside the limits of a munlclpalfly, Seller notifies Buyer under
                  §6,011, Texas Property Code, that the Property may now or later be included In the extraterritorial jurlsdicllon
                  of a municipality and may now or later be subject to annexation by the municipality. Each municipality
                 malntalns a map that depicts Its boundaries and extraterritorial Jurisdiction. To determine if the Property is
                 located within a municipality's extraterrltorlal jurisdlclion or Is flkely to be located within a municipality's
                 extralerr!torial jurtsdfctlon, contact all municlpalltles located in the general proximity of the Property ior further
                 Information.

                                                                                          .
     Initialed for identification by Buye~                 k'?.        and Seller         ru                                          TREC NO. 24·6
    . (TAR·1604) 2·13·06                       l I                                                                                       Page2 of9
              Produc:ettwlllt Zlpfoimm by RC: FormsNe~ LLC 1B02.5 Fln.een Mlle Road, OHnton Township, Michigan 48036 wuwz!pform.com    VSDH Vaqueio y
·.   ;   ____.___


                                                                           2004 White Wing Cove
               Conlracf Concernfng                                          Westlake, TX                   76262                                 Pag&3of9 02-13·06
                                                                                  (Address oiProperty)

                         (6) PROPERTY LOCATED IN A CERTfFICATED SEf<VICE AREA OF A UTILITY SERVICE PROVIDER:
                             Notice required by §13.257, Water Code: The resl property, described Jn Paragraph 2, !hat you are about to
                             purchase may be located in a certificated water or sewer service area, which Is autholized by law tortl';rovlda
                             water or sewer service to the fsroperties in the certificated area. If dour progerty Is located in a ce ·floated
                             area there may be special cos s or charges that you will be re~ulre lo pay efore you can receive water or
                            sewer service. There may be a period required to construct Ines or other faclllties necessary to provide
                             water or sewer service io your property. You are advised to determine If the prope:;\I'. Is In a certificated area
                             and contact !he utllf~ service provider to determine the cost that you Wiil be require to pay and the perlodb If
                            ank, that Is require to Jiiovide water or sewer service to your property. The undersigned Buyer here y·
                            ac nowledges receipt of e foregoing notice at or before !he execution of a binding contract ior !he punchase
                       · of the real property described in Paragrafih 2 or at closing of purchase of the real pro&erty.                        ·
                        (7) PUBLIC IMPROVEMENT DISTRICTS: f the Property Is In a pUbllc improvement isirict, §5.014, Property
                            Code, requires Seller to noiify Buyer as follows: As a purchaser of this parcel of real prog,erty you are
                            obli?rated lo pay an assessment to a munlclpallly or couniy for an improvement project un ertaken by a
                            pub le Improvement district under Chapter 372, Local Government Code. The assessment may b.e due
                           .annually or In periodic Installments. More Information concemlng the amount of the assessment and the due
                            dates of that assessment may t)e obtained from the municipalily or counly levying the assessment The
                            amount of the assessments is subject to change. Your failure to pay the assessments could result in a lien
                            on and the foreclosure of your property.
              7. PROPERTY CONDITION:
                 A ACCESS, INSPECTIONS AND UTILITIES: Seller shall permit Buyer and Buyer's agents access to the Property
                      at reafonable times. Buyer m"& have the Property insr.ected by lns~ec!ors selected by Buyer and licensed by
                      TREC or otherwlse permitted y law to make lnspeci ens. Seller s all pay for turning on exisUng utlli!les for
                      inspections.                                                                ·
                 B. ACCEPTANCE OF PROPERTY CONDITfON: Buyer accepts the Property In its present condition; provided
                      Seller, at Seller's expense, shall complete the following specific repairs and treatments; and make the following
                      improvements:All items written on in@eoti.on re};'!ort as ;non-functional: s~ller
                      wil.l .reoair..
                 C, WARRANTIES: Except as expressly set forth In this contract, a separate writing, or provided by law, Seller
                     makes no other express warranties. Seller shall assign to Buyer at closing all assignable manufacturer
                     warranties.
                 D. INSULATION: As re~ulred by Federal Trade Commission Regulatfons, ihe Information relating to tha Insulation
                     Installed or to be insta led in the Improvements at the Property Is: (oheck only one box below)
                    0     11)as shown in the attached specifications.
                    0 2) as follows:                                                                                                       ·
                             a) Exterior walls of Improved living areas: Insulated with      ·
                              . Insulation to a thickness of               inches which yields an R-Value of
                             b) Walls In other areas of the home: Insulated with
                                Insulation to a thickness of              Jnches whfch yields an R-Value of
                            c} Ceilings in Improved living areas: Insulated with
                                lnsulatlon to a ihlckness of          · Inches which yields an R-Value of                                 .
                            d) Floors of Improved !lving areas not applied to a slab foundation: insulated with insulation to a thickness
                                of                Inches which yields an R-Value of
                            e) Other Insulated areas: insulated with                                                         insulation to
                                a thickness of               Inches which yields an R-Value of
                   All stated R-Values are based on Information provided by the manufacturer of the Insulation.
               E. LENDER REQUIRED REPAIRS AND TREATMENTS: Unless othelWlse agreed In writing, neither party is
                   obllgated to pay for lender required repairs, which includes treatment for wood destroying insects. If the parties
                   do not agree to pay for the lender required rer,alrs or treatments, !his contract will tennlnate ·and the earnest
                   money will be refunded to suy,er. If !he cost of ender required repairs and treatments exceeds 5% of the Sales
                  Price, Buyer may terminate th s contract and the earnest money wlll be refunded to Buyer.
               F. COMPLETION OF REPAIRS, TREATMENTS, AND IMPROVEMENTS: Unless otherwise agreed in writing,
                  Seller shalf complete all agreed repairs, treatments, and improvements (Work) prior to the Closing Date. All
                  required pennlts must be obtained, and Work must be performed by p~rsons who ars licensed or otherwise
                  authorized by law to provide such Work. At Buyer's election, any transferable warranties received by Seller with
                  respect to the Work wlll be transierred lo Buyer at Buyer's expense. If Seller fails to completa any agreed Work
                  prior to the Closing Date, Buyer may do sa and recelve reimbursement from Seller at closing. The Closing Date
                  will be extended up to 15 days, If necessary, lo oomplete Work.


                                                      ()J)                                        ,,/
         Initialed for ldentlflcaUon by BuyeY vv
         (TAR-1604) 2·13-06                 •
                                                              -·    (_,/ I ' -
                                                                                 and Seller      .......                                          TR[::C NO. 24-6
                                                                                                                                                       Page 3 of9
                    ProdUC:$i;I wllll ZlpFormN by RE rormsNet, LLO 18025 Fifteen Mije Road, C!Jnlon Township, Mtchfgan4BD36   wy.w~loform.e-om      VSDH Vequcro V
(_.;   __ :,..______ ,___ __ .



                                                                              2004 Whita Wing Cove
                     ContractConcarning                                        Westlake, TX                   76262                                Pag-a4of9 02-13-06
                                                                                            (Address of Property)
                      G.. ENVIRONMENTAL MAITERS: Buyer is advised that the presence of wetlands, toxic substances, fncludlng
                           asbestos and wastes or other environmental hazards or the presence of a threatened or endangered species or
                           its habitat may affect Buyer's intended use of the Properly. If Buyer is concerned about tbese matters, an
                           addendum promulgated by TREC or required by. lhe parties should be used.
                      H. SELLER'S DISCLOSURE: Except as otherwise disclosed In this contract, Setler has no knowledge of the
                          following:
                          (1) any flooding of the Proper!Y which has had a material adverse effect on the use of the Properly;
                          (2) any pending or threatened litigation, condemnation, or special assessment affecting the Properly;
                          (3) any environmental hazards or conditions matertally affecting the Property;
                          [4) any dumpsite, landfill, or underground tanks or containers now or· previously located on the Property;
                          (5) any wetlands, as defined by federal or slate law or regulation, affecting the Property; or
                          (6) any threatened or endangered species or their habitat affecting the Property.
                     I. RESIDENTIAL SERVICE CONTRACTS: Buyer may purchase a residential service contract from a residential
                         service company licensed by TREC. if Buyer purchases a residentlal service contract, Seller shall reimburse
                         Buyer at· closing fOr ·the cost of the residential service contract in an amount not exceeding
                         $                                  . Buyer should review any resldenttal service contract for the scope of coverage,
                         exclusions and limitalions. The purchase of a restclentlal service contract ls opt!onal. Similar coverage may
                         be purchased from various companies authorized to do business In Texas.
                8. BROKERS' FEES: All obligations of the parties for payment of brokera' fees are contalnad In separate written
                    agreements.
                9, CLOSING:
                    A. The closing of the sale will be on or before                  June 12                , 2007       , or within 7 days after
                         objections made under Paragraph 6D have been cured or waived, whichever date is later (Closing Date). If
                         etther party fails to close the sala by the Closing Date, the non-defaulting party may exercise the remedies
                         contained in Paragrapl> 15.
                    B. At closing:
                        (1) Seller shall execute and deliver a general warranty deed conveying title to the Property to Buyer and showing
                              no additional exceptions to those permitled in .Paragraph 6 and furnish tax statements or certificates showing
                              no delinquent taxes on the Property.
                        (2) Buyer shall pay the Sales Price In good funds accep)able to the escrow agent.
                        (3) Seller and Buyer shall execute and deliver any nolices, statements, certiftca!as, affidavits, releases, loan
                             documents and ofi\er documents required of them by this contract, the Commitment or law necessary for the
                             closing of the sale and the issuance of the TI!le Policy.
                   C. Unless expressly prohibited by written agreement, Seller may continue to show !he Property and receive,
                       negotiate and accept back up offers.                                                  ·
                   D. All GOVenants, representations and warranties in this contract survive closing.
              10. POSSESSION: Seller shall deliver to Buyer possession of the Properly in its present or required condition,
                   ordfnary wear and tear excepted; llil upon closing and funding D according to a temporary residential lease form
                   promulgated by T~EC or other written lease required by the parties. Any possession by Buyer prior lo closing or by
                   Seller after closing which ls not authorized by a written lease will establish a tenancy at sufferance relationship
                   between the parties. Consult your insurance agent prror to change of ownership and possession because
                  insurance coverage may be limited or terminated. The absence of a written lease or appropriate insurance
                  coverage may expose the parties to economic loss.
              11. SPECIAL PROVISIONS: (Insert only factual statements and business details applicable lo the sale. TREC rules
                  prohibit licensees from adding factual statements or business details for which a contract addendum, lease or other
                  form has been promulgated by TREC for mandatory use.)
               -k)   See Addendum             11
                                                   A 11 and Addendum            11   B 11
               t!.) Vof--v•Ji:<Lcl,~ A~,,J1'.;:,. ~.::d.. ~~; ..... , fl'e. B'-'\'"-~ ~i.s\--/l-t.me_cy
                   . {<. ,u.._ +cl_,.h\,._ ,,_\- -S:toi>P""- f--""''1'1 ;...._ ~J \f°k,<- lf, 2-<)•1 .




                                                                                                            ./
            Initialed for ldenUfication by Buyer,'l""H'..l;/""'--- /<r:;...
            (TAR-1604) 2-13-06                      I
                                                                                       and Seller           "*'''-·___                              TREC NO. 24·6
                                                                                                                                                       Page4 of 9
                          Prod"Ucedwtn:i ZlpFonnnrby RE Fonn~el, [.LC 16025 Fifteen MUa RQad, CTinlal TOYmshlp, MlchJgan 46035 \WJW..Zk1form com      . VSDHVeqnero V
                                                                                                                                                                        !
.
 ;




                                                                       2004 White Wing Cove
                      c~ntrac( Concernfng _ _ _ _ _ _ _ _~W~e~•~t"Ol-ca;ck~e~,,,T~X'-:7"""62~6~2~-------- Pages Of 9 02·13-06
•.·, ....·                                                      (Address of Property)
                    12, SETTLEMENT AND OTHER EXPENSES:
                        A. The following expenses must be paid at or prtor\o closing: .
                                   (1) Expenses payable by Seller (Seller's Expenses):
                                       (a) Releases of ex!stlng liens, Including prepayment penalties and recording fees; ·release of Seller's J.oan
                                            liabifily; tax statements or certificates; preparation of deed; one-half of escrow fee; and other expenses
                                           payable by Seifer under this contract,
                                       (b) Seller shall also pay an amount not to exceed$ - o-                         lo ba applied In the following order:
                                           Buyer's Expenses which Buyer Js prohibited from paying by FHA, VA, Texas Veterans Housing Assistance
                                           Program or other governmental loan programs, and then to other Buyer's Expenses as allowed by the
                                           lender.
                                  (2) Expenses payable by Buyer (Buyer's Expenses):
                                      (a) Loan origination, disc0unl, buy-down, and commitment fees (Loan Fees).
                                      (b) Appralsal fees; loan application fees; credit reports; preparation. of loan documents; Interest on the notes
                                           from date of disbursement to one month prior to dates of first monthly payments; recording fees; ocpfes
                                          of easements and restrlctlons; mortgagee title policy with endorsements required by fender; loan-related
                                          Inspection fees; photos; amortization schedules; one-half of escrow fee; all prepaid Items, Including
                                           required premiums for flood and hazard Insurance, reserve deposits for Insurance, ad valorem taxes and
                                          special governmental assessments; final compliance Inspection; courier fee; repair Inspection;
                                          underwrltlng fee; wire transfer fee; expenses Incident to any loan; and other expenses payable by Buyer
                                          under this eontracl                                      ·
                             B. Buyer shall pay Private Mortgage Insurance Premium (PM!}, VA loan Funding Fee, or FHA Mortgage Insurance
                                 Premium (MIP) as required by the lender.                                            ·
                             C. If any expense exceeds an amount expressly stated In thiS contract for such expense to be paid by a party, that
                                 party may terminate this contract unless the other party agrees to pay such excess. Buyer may not pay charges
                                 and fees expressly prohibited by FHA, VA, Texas Veterans Housing Assistance Program or other governmental
                                 Joan program regulations.
                    13. pRORATIONS AND ROLLBACK TAXES:
                            A. PRORATION$: Taxes for the current year, maintenance fees, assessments, dues and rents will be prorated
                                 through the Closing Date. The tax proration may be calculated taking Into consideratlon any change In
                                 exemptions that will affect the current year's taxes. If taxes for the current year vary from the amount prorated at
                                 closing, the parties shall adjust the prorations when tax statements for the current year are available. If taxes are
                                 not paid at or prior to closing, Buyer wlJI be obligated to pay taxes for the current year.
                            B. ROLLBACK TAXES: If Sellers change In use of the Property prior to closfng or·denlal of a special use valuation
                                .on the Property results Jn additional taxes, penalties or Interest (Assessments} for periods prior to closing, the
                                Assessments wRI be the obfigatlon of Seller. Obligations imposed by this paragraph will survive closing.
                   14. CASUALTY LOSS: If any part of the Property ls damaged or destroyed by fire or other casualty after the effective
                            date of this contract, Seller shall restore !be Property. to its previous condition.as. soon as reasonably posslble.--l>l!f~R ·
                            any .even! by the-Closing Date;-Jf-SeJJer falls· to do so due to factors beyond Sel!el's-control, Buyer may.-Ea)- ,. ;. ,. i
                          .terminate this contract and the·earnest· money-wm be refunded to Suyer-(llj-el<tend· the time ..for·performanc~p.to
                         · 1.5. days .and the Clo~Jng Date wJJJ be·~tended as necessary-or~ accept the Property Jn its damaged condition with
                        · an assignment of Insurance proceeds and receive credit from Sellar at closing In the amount of the deductible under
                           th.e Insurance policy. Sellers obligations under this paragraph are independent of any other obligations of Seller
                          under this contract.
                   15. DEFAULT: If Buyer falls to comply with this contract Buyer wm be in default, and Seller may {a) etiforce specific
                        . performance, seek such other relief as may be provided by law, or both, or (b) terminate this contract and receive 1-s 1
                          the earnest money as liquidated damages, !hereby releasing both parties from this contract ,                                        ,;ofe. <><'lk
                          beyond Sellers control, Seller fails within the time allowed to m                                                        e ver 'the ~~(~·
                          Commitment, or survey, If re                          ,    e may a extend the time for performance up to 16 days and the ·· j1t0ii(~~
                          Closing D                      extended as necessary or (b) terminate this contract as the .safe remedy and receive the ·
                                                • If Seller fails to comply with this contract for any ot.~~r.reason, ~eller wlll . be In default and Buyer
                                  (a) .enforce speclflc perfo.JT!lance, aeelt e!ieR aUier wlief aq ffl~®).d:f0~.¥~;~-El e; leu, .er both, or (b) terrnfnata
                                    ntract and receive the earnest money, thereb releasln both· a1,ue&.uum this contract.
                  16. Ml;ODIATION: It Is the po cyri e                     e of Texas to enoourage'reiiolutlori of disputes through alternative dispute
                         resolution procedures such as mediation. Stib)eot to appllcable Jaw, an dispute between Seifer and Buyer related to
                         this contract which Is not resolved through lnfOrmal discussion                    'will D will not be submitted to a mutually
                         acceptable mediation service or provider. The parties to the med' Ion shall bear the mediation casts equally. This
                            ara ra h does not reclude                   fro seekin e uitable rell      om a court of com etent urtsdlctlon.
             · · fnitliired for ldentlfioatlori by Buyer                     .?. and Seller                                                 ·. TREC NO. 24-ti
                 (TAR-1604) 2-13-06                                                                                                                Page 5 of$
     -·-····•··--'-




                                                                              2004 White Wing Cove
                      Contract Concerning                                     Westlake, TX: 76262                                                  P"lJo6of9   02-13-06
                                                                                        (Address of Property)
                17•. ATTORNEY'S FEES: The prevalllng party In any legal proceeding related to this contract is enttued to recover
                     reasonable attorney's fees and all costs of such proceeding Incurred by the prevailing party,
                18. ESCROW:
                    A. ESCROW: The escrow agent Is not (i) a party lo this contract and does not have liability for the peJformance or
                        nonperformance of any party to this contract, (ii) liable ior lniarest on the earnest money and 011) liable for the
                        loss of any earnest money caused by the failure of any ftnancial institution Jn which the earnest money has been
                        deposited unless the financial Institution is acting as escrow agenl                              _
                    B. EXPENSES: At closing, the earnest money must be applied first to any cash down payment, then to Buyefs
                        Expenses and any excess refunded to Buyer. If no closing occurs, escrow agent rnay require payment of unpaid
                        expenses Incurred on behalf of the parties and a written release of liability of escrow agent from all parties.
                    C, DEMAND: Upon termination of this contract, either party or the escrow agent may send a release oi earnest
                        m0ney to each party and the parties shall execute counterparts of the release and deliver same to the escrow
                        agenl If either party falls to execute the release, eJtf)er party may make a written demand to !he escrow agent for
                       the earnest money. If only one party makes wrttten demand for the earnest money, escrow agent'shall promptly
                        provide a copy of the demand to the other party. If escrow agent does no! receive written objection to the
                       demand from the other party Within 15 days, escrow agent may disburse the earnest money to the party making
                       demand reduced by the amount of unpaid expenses Incurred on behalf of the party receiving the earnest money
                       and escrow agent may pay the same to the creditors. If escrow agent complies with the provisions of this
                       paragraph, each party hereby releases escrow agent from all adverse claims related to the disbursal of the
                       earnest money.
                   D. DAMAGES: Any party who wrongfully fails or refuses to sign a release acceptable to the escrow agent within 7
                       days of receipt of the request will be liable to the other party for liquidated damages of three times the amount of
                       the earnest money.
                   E, NOTICES: Escrow agent's notices will be eifectlve when sent ln compliance with Paragraph 21. Notice of
                      objection to thil demand wlll be deemed eifeotlve upon receipt by escrow agent.
               19; REPRESENTATIONS: Seller represents that as of the Closing Date there Will be no liens, assessments, or security
                       Interests against the Property which will not be satisfied out of the sales proceeds. If any representation of Seller in
;·                     this contract Is untJUe on the Closing Date, Seller Wiii be In default.
               20. FEDERAL TAX REQUIREMENTS: If Seller is a '~oreign person,' as defined by applicable law, or if Seller fails to
                      deliver an af(ldavlt to Buyer that Seller Is not a "foreign person,' then Buyer shall withhold from· the sales proceeds
                      an amount sufficient to comply with applicable tax raw and deliver !he same to the Internal Revenue Service
                      together with appropriate tax fonns. Internal Revenue Service regulations require filing written reports If currency In
                      excess of speciffed amounts is received in the transaction.
              21, NOTICES: All notices from one party to the other must be in writing and are effective when malled to,
                  hand-delivered a~ or transmitted. by facsimile or electronic transmission as.follows:

                      To Buyer                                                                            To Seller
                      a..         .
                                                                                                          at:
                        "
                      1-430 Eagle Bend Drive                                                               5305 Vil1aae Creek

                      Southlake. TX 76092                                                                  Plano. TX 75093



                  Telephone: (817) 421-4B34                                                               Telephone: 1972) 732-1155

                  Facsimile: _ _ _ _ _ _ _ _ _ _ _ __                                                     Facslmlle:      "IJi..-'12><--ltlt<l\J.
                                                                                                                      ll1c.-\'-o\::> i'l"ti-t:'\"'i~s rol.lf'" iJJ-
                  E-malc --------~-----


            Initialed for identification by Buys,.. "' ~
                                                             /, 1./)
                                                                         J\ ' -     and Seller
                                                                                                          E-mail:


                                                                                                             11 '-
                                                                                                                  /                                 -TREC NO. 24-6
          . (TAR-1604) 2-13-06                       V- I                                                     '                                         Page6 oi9
                            Produced\'/!~ ZlpForm?' by ~E Fo~Ne~ LtC 18025 Fifteen Mlle Road, Clinton Township, Mlch!Qan 46035 WWW zrori;irm.com        YSPHV11qtr:ro V




                                                                                                                  ------------------- - - - - - - - - - - - - - - -
                                                                   2004 White Wing Covs
          Coi:Jb"liicn Coneeittrlng                                1!'Qll:!J.l&t'     ~      '1§'.2~"                                     P•ga 7 ot~         02-1$.0ll
                                                                          (Ad6- of Pl'Opotly)
      :22.. AGREEMENT OF PARTIES: This contract conl9fns the entire sgteament of !ha ~ and caru10t be cllanged
            EOO;ept by thefrwrilten agreement Addenda which are a part of tllle contrai;:t ere (check all appllcabfe boms):

               Cl Third Pa11y Flnanclng Cort<:!Hlon AddBlldum                                      0 Addendum for "Bac1'-lJp• Conb:ao!
               0 Setter Aoanclng Addendum                                                          0 Environmental Assas$)'11ent, Throatenec! or
                                                                                                     Eodangerecr Speclllll and Wethmds
                                                                                                     AMendum
               0 Aaden(!um toe Properly SubJact lo                                                0 Addendum          ror Coastal Area Property
                  Mal'ldatory Membarshlp In an Owners'
                  Assoc!llllon

               0 Buyer's Tempor;iry Residenllal Lease                                             Cl Addendum ~Property Located Seawrd of
                                                                                                     1he Gutf lnltacoas!al WS.tet'i'/ay
               0 Addendum for Sale ot Other Properly by                                           11!1 Other Qlst): ad:d§tlldwtt.        ~r~q     ~
                                                                                                       Mdendrnn n1,1u
                  ~ar



     23. TCRMlf'IATION OPTION: For nominal con,:;erallon. the receipt of which Is h&reby aekr'lowledgad b'j SeKer, and

         this conlrac~
         Seller within       II--
                                 f7F
         Buyets agreeme11t !O pay Seiter$              N l'l-'                   {Opllon Fee) within 2 days after the etreot!<e date or
                                 grants Buyer the unreslrlc:ted right !o termlna1e this contract by glvlng noUce of leimlnatlon !O
                                     dey:s at!ar th& effective d;i.te of this contracl. II no dolls»" an\Ount ls '11atecl as the Opllon Fee
         or If Buyer fulls lo pay the Option Fee within tho tkna prescr!bed, this paragraph wtlI not be a part Of 1hls conlteCt end
         Buyer shaD not hav& tho unres.trlcted right to terminate 1hls contract If Buyer gives nob of iermlnal!Qn within the
         time pra5eribed, Iha Opl!on Fee wUI not be refunded; however, any. earnest money will be ref\lnded lo Buyer. The
         Option Fee 0 'W1IJ 0 wm nat bi'I cn>di!ed to lhe Sales Prlos al closing. l'trrut Is of Ille -nee for this
         paragrapl!i all([ strict compliance wttb tbs time for porf'Qrmance Is required.                                          .

     24. CONSUL! AN ATTORNEY: Real e&a.re licensees cannot give legal advl6e.. REAO THIS OONTRACT
         CAREFUi.LY. If you d~ not under"S-tand ttis effect Of il11s" contraot.. consult an attotney BEFORE; signing.

     Buyer's
  Attorney ts:              f1#CI(          '2   l~N1£. ft:.-M nA/                   =~yls:             lut\0;e,l         Jt(i+,..-e) £.-b,J~)
                                           '                                                       G.t.TI JJ. Ce.."\-«..\ '4i'w'\·J                   <>.......   5,-
                                                                                                   OA-llltr 11'>'- 1.n.of..

 Telephone:                  8/7- :f<it -t.J'I/                                      Telephone:          7-l'f '·"1 ?..<i - 0 t. 4(,.

 Facslmif<i:                                                                         FaCShnlle:         .t1't-l~<j-l)ft        o'i'

 E-mail:                                                                             E-man:       Asf-vt..JJ «.,:R..._....i •c.a .,.,.__


                                                                                                / ..
                                                       !'JA
                                                 ~--Ki•_,,,,,..                                                   -
lnl!laled 1tir fd&rrtltlcaUon by Buyer
                                                   '     I
                                                                  J< f-and SeUE>r          i\'>
                                                                                            .                                                   TREC NO. 24-6
{TAR-1604) 2-13-0S                                                                                                                                 Paoe7of9
 .    •    ,     ~~ %Igf'.Q~~b)' ltl! 1Cltllif'.l~t, t.LC1a.'»:5 A.llMn Mt~ R,otd, cnnf.oft 'lbwmnfp. M!Ohfpin ~& 'tNN(tleforn'f Com            · .• VS!>B Ytqut® V




                                                                                                                                       SSQJE)
f'   --~~~~·--




                                                                                             c"""'
               C..,,..,.Con_                                    2004 White
                                                                H'•&:tla ks:I ,
                                                                                  W~n~
                                                                                  ~3 2 62: ii2
                                                                       (Mdto .. of Ptoporl)')
                                                                                                                                   P"40 8of9   ~2-1J.4lll




              EXECUIEO Ute                           day of                                                                  (eFFECTIVJ: DATE).
              {BROKER: FILL lN THE DATI! OF FINAL ACOEPTANcg.)                                        '
                                                                                                                             -··
                                                                                                                        .




              Tllfa co11tt.act ls subject to Chapb!r 27 Of the
              Te><a• Property Code. The provisions of that
              chapter may affact )'l)Ur rtsht to recover
                                                                                      BuyM~~

                                                                                      -~
              damages arislns from the perfOrmance Of this
              conlracl ti yoo have a complal~t eoncern!ng a
              constroctlon demt arislllg from tfte pet'fo.rmanoe
              of th!$ CQntraot and that defect has not Ileen
              cor<ected through normal wammty 6$1\'IQ&, you
             must provide the notice requited 'IT/ Chapter Zf
             of the Texas ?roper!)' Code to the contractor by
             ces1lfled maD, return n!CSlpt T!!quested, not later
             than the 60llt ~ before t~e dale you file suJt ta
             recover damages In a coUrt of laW or lnldate
                                                                                              i                                     --'If
             arbttrallon. The nQtlca mwt refer to Chaplet 27                         Sellar VEDH v.._quero         ~tu,,.,          Ltd.
             of tile 'l"exas Property Code and must deSOl!b<>                                 '(-s.~lt ~~&P.
             tile construotlon    ~        .rt   requested b>' 6"'
             contC<ICICT, Y01.I must pn>vide the cot1'!tllctor, an
             opportunf!y to Inspect and cure the defeot !IS
             prOYlded U'f Seclfon 27.004 of the Texas
             Property Code.                                                          Seifer

                                                                                         -




             Tha l\mn of thlo c:on!raot has b~ spprmred by Iha Texllll fCesl Estate Co!n""4slon. mec {orll'IS        "°'    ltl!ended for"""only by
             trafl1(ld rear OSlafa Pcenaees. No n!p1'!sanlall<>n ls mod& aa to Ille log$f \l.$lldlty 111' adequacy of 8f'/ provJsron rn any apeelfto
       '     tmnsso!IOl'Je._lt f$ not !nmded foreompl"" tmnsactlonL T~ Reale.tote Comm~lon. P.O. Box 121sa, Auslln, 1X 78711-2188.
             Hl()().,250.8732 or (612) ~ (h1lp!l/www.1tao.ota!e.IX.U•) TRIOC NO. 24-S. This form replacM TReC NO. 24-5•
                                                                             ..
                                                                                                                                       TREC NO. 24-6
           (l'AR-1804} 2-13-0S                                                                                                           . Page8ot~
                  . .l'<>xl•codw!Ulpfonn'"byRIU'""""'~UC<.... ,,_M!iol\ood,Cll\IOJIT_ _ • ..,.. ,_,.,,,,,, ....                          VSOS:Voq"""V
.f ..... -··-· - .     .    .-   ...... ··--···.. .. .



                                                BROKER INFORMAllOlllAflD AA'llFICATIDl>I O;P FEE
               U•Vn~ a~ him actetd b l>"f Other 8roll.t.r                                                                t=*
                                                                                                              of Ille IOtl!ll pdt<l
               when U511ng 9rol<ol"a fo., 1:1     """''""d.
                                                    e=ow Asiei>I b          awll<>llz<ld ~ dlt'e<ta<;I to   P$1 Oth•r Brokot from
               U.ll!lg Broltsf• !06 atdoolng. -
                                                                            Va""""" Reddoot>ill!l.
                                                                            Jta>i;J./lf,   !.LC                          p2j19573
               6tner etel<&                                   ute""'" No.   U11ii1ig ~                                 Lloolloa No.
               ,.~           a a.,,.,,..rvuet•J<lr'ua•r>t                   ropt8'!"'4$' lllt llahnndBUf"'U"'1IJ\!Hlllfdilll)'
.'                          ·O soror .. u.uno Brok?<'• ..,bogont                           a   &olMoo!ya•SollofgCIQant

                                                                                                                 fM71~9~
                                                                            Llst1ng AoiiOlilata                           •llpl\one

                                                                            ~4~5 rount.un GrltlS~
                                                                            ~                          •         CJ!l?l 4ll~i_
                                                                            ~AsliOcll!W's OlliC8 OAddreas                F   !ii


               Clly                                                  Zli>                                                          Zip



               Feett1m11e


                                                                                                                         'l'elophone




                                                                            City                                                zrp


                                                 OPTION l'l!E RECEIPT
              Receipt of$ _ _ _ _ _ _ _ (Opllon ""9) in ll>ttfolill Of _ _ _ _ _ _ _ _ _:._faaeknoW!odge<I.

              seJier or Uillilg Bi<lfu




                                                                                                                     'tREO NO. 24-6
          (iJ.\R-1804) 2·1:!-0!!!                                                                                        PB,g<>~   0(9
                                 FIRST AMEND111ENT TO NEW HOME CONTRACT


           THIS FIRST Afv!ENDMENT TO NEW HOME CONTRACT (the "Amendmenf') is entered into
   by and betwei;n VSDH VAQUERO VENTURE, LTD., a Texas limited partnership (the "Seller"), and
   KENNETH P. GROSS and BETSY L. GROSS (collectively, the "Purchaser'').

                                                       WITNESSETH:

           WHEREAS, Seller and Purchaser entered into that certain New Home Contract dated effective as
   of June 4, 2007 (the "Contract"), providing for the sale by Seller to Purchaser of a tract of land located at
   2004 White Wing Cove, WestJfilcf,, Tarrant County, Texas (the "Property") and being more particularly
   described in the Contract; and

           . WHEREAS, Seller and Purchaser desire to amend the Contract as hereinafter set forth.

         NOW, THEREFORE, based on these facts and in consideration of the mutual benefits to be
  obtained by this Amendment, Seller and Purchaser agree as follows:                      ·

            L          Amending Provisions. The Contract is hereby amended as follows:

           (a)     Paragraph 9.A. of the Contract is hereby amended to provide that the date and time for
  the closing to be fully consummated and funded shall be extended to occur on or before noon on Friday,
  June-29, 2007 (the new "Closing Date"); prpvided, however, that as a Condition Precedent (herein so
  called) to such extensioµ, Purchaser and Seller hereby agree that Purchaser shall ·deliver to the Title
  Company the following: (i) a fully executed copy of this Am~ndment; (ii) a or a wire transfer or cashier's
  check made payable to the Title Company, in the amount of Fifty Thousand and No/100 Dollars
  ($50,000.00), which shall be added to and comprise a portion of the earnest money being held under the
 Contract; (iii) a cashier's check made payable to Seller, or a wire transfer to the Title Company in care of
 Seller, in the amount of Eight Thousand, Five Hundred and N6/100 Dollars ($8,500.00) as a non-
 refundable extension fee which shall not be credited toward the Sales Price (the "Extension Fee"). In
 addition, the Extension Fee shall be increased by Five Hundred and No/JOO.Dollars ($500.00) for each
 day after June 29" that passes until the closing is fully consuinmated and funded, and Purchaser shall pay
 same to Seller no later than at closing.

           (b)      Inasmuch as Purchaser was not ready, willing or able to consmnniate the closing as. and
  ·when required by the Contract and Seller has already tendered fuil performance of its closing obligations,
· this.Amendment constitutes an offer by Seller to extend the Closing Date, and if this Amendment is not
. fully executed and delivered by Purchaser to' Seller and the Condition Precedent is not fully satisfied on or
   before 4:00 p.m. local time in Dallas, Texas on June 20, 20Q7, then the following shall automatically
   apply: (i) Seller's offer to extend the Closing Date shall be fully rescinded, (ii) Purchaser shall be in
. default under the Contract, (iii) Seller shall be deemed to have terminated the Contract and entitled to
  retain all of the earnest money on deposit with the Title Company, and (iv) Purchaser shall vacate the
  Property.

          (c)        There are rio other amendments.

         2.       ConBequence of Amendment. Nothing in this Amendment affects or modifies any of the
provisions of the_ Contract, except as expressly provided herein. The Contract,. 'as amended by this
Amendment, will continue in full force and effect and is ratified and affirmed by Seller and Purchaser as
if originally written as herein amended.


                                                            Page I of3

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              ·--------------- ----
             3.        Miscellaneous.

           (a)     The section headings contailled in this Amendment are for conv01rience of reference only
   and are not intended to delineate or limit the meaning of any provision of this Amendment or to be
   considered in construing or interpreting the provisions of this Amendment. Capitalized terms used in this
   Amendment which are not otherwise defined hereiri shall have the same meaning as given to them in the
   Contract.

           (b)      This Amendment may be executed in any number of counterparts, separately or together,
   by Seller and Purchaser. If counterparts hereof are executed separately by Purchaser and Seller, when
   taken together, same will constitute one(!) original. If the same counterparts are executed by Purchaser
   and Seller, then each such counterpart shall constitute an original. Seller and/or Purchaser may execute
   and deliver this Amendment by telephone facsimile transnrission, and the receiving party may rely fully
   thereon as an original.

          (c)      This Amendment embodies the entire agreement and understanding between Purchaser
  and Seller with respect to its subject matter and supersedes all prior agreements and understandings,
  wiitten or oral, between Purchaser and Seller related to that subject matter. This Amendment may be
  amended, wfilved or discharged only by an insfnnnent in writing executed by the party against which
  enforcement of the amendment, waiver or discharge is sought.

          (d)     The d,tennination that any provision of this Amendment is invalid or unenforceable will
  not affect the validity or enforceability of the remaining provisions or of that provision under other
  circumstances. In the event of any deternrination of invalidity or unell"forceability, this Amendment will
  be construed as ifthe invalid or unell"forceable provision were not included in this Amendment.

          . EXECUTED as of (although not necessarily on) the 12"' day of June, 2007.

                                                               SELLER:

                                                               VSDH VAQUERO VENTQRE, LID.,
                                                               a Texas limited partnership

                                                               By:       VSDH Homes, Inc.,
                                                                         a Tekas corporation, its General Partner




                                                                         By:--,,--~,--.,...::::::=====~~~~----_-_-_--
                                                                                Douglas M. Hickok, Vice President




                                                           Page2 of3

C:\Documents and .Settings\doug\Local Settings\Temporary Interp.et Files\OLK.6A\1stAmendment to Contractv2 061907(SSFN).doc
                                             .                                        ili
              EXEC!JTED as of (although not necessarily on) the 12 day ofJune, 2007.

                                                                    PURCHASER:




                                                                    KENNETII P. GROSS




                                                              Page 3 of3

C:\Documents 11.nd Settings\doug\I.ocal Scttings\Temporary Internet Fiies~0:1X6:A\lst Am!mdincnt.to Contract v2 051907(SSFN).rloc
     . ···~.!--·--··'"' ·.-......



                                                         Af)DEMJUM_A,
                 l.     :BUY BACK OPTION: VSDH Vaquero Venture Ltd, (VSDHf, as Seller, hereby
                        grants to Kenneth P. and Betsy L. Gross (Cltoa•), as Buyer, of 2004 Wltlto W"Jll&
                        Cow in Vaquero subdiviolan. W11$tlake, Texas (tit$ Prop<lrty) the option (the
                        "Buy Baek Option") fO put1he Propo.'fy(o S'eller (i.e.,_xequlre Seller lo repurohase
                        the Propel'ly fur the original ''Sales Price" af $2,851,871.00) on September 1,
                        2009, or suoh ....:iier dal<> as may ho mutually asreed betweonBuye.r eud Seller, in
                        writing (the ''Bo;v Back Date''). subject to the following terms andeonditions:·

                        (a)·       DECLABATJON DATE: On or beli:>re May i, 2009, (the ''.O~laration
                                  Dale''), Buyer tnust ~xeroJs•,.th• !luy Back Option by deli'l'ering written
                                  notice thereof ro Seller (the ''Buy Ba1>k Option Noli~<>''). n; fur any
                                  :reason, S~er .It~ not received the Buy Baek Option N'otloo, on or before
                                  S:OO, looa!timeln Dallas/Fort Worth, Texas, onilteDeolaratlonDate, !hon
                                  Buyer shall have waived the Jluy Back Option iu1d ·~ shall be null
                                  avoid,                                   ·

                       (b)         BUYER EXERCISES '.l1lB BUY BACK OPTION: .If Buyer timely and ·
                                   properly exeroioes tho Buy Back Option, t!\en tho following ahall apply:
                                   (i) B11yer may.1to! se11 or oonvoy any i:lgbt, title or inter~t in and to the .
                                   Property to IU1Y thW party unless Sellar broaches its obilgaflon to
                                   repurollase the Property purau!tnt to tho Bu.y Baok Option due to no iilult
                                   of Buyer: [Ii) Seiler may aoounenoo marketing the .P.ropor!}; for sale an
                                   May 2, 2009, and Buyer agrees to fully cooperafe with all matke!ing
                                   efforts of Seller; l!lld (iii) on or before Soptomber r, 2009, unless Buyer
                                  and Soller all"'• upon anotheE staled dat<i in writing; Bu.yei: shall vacate the
                                  Property aruf deliver full po,,.ession thereof to Soller, and the Property
                                  shall be in tho aam.c condition a• existed on !ho orlgfnal Closing Dato, plus
                                  lntY Soller eppr<>Wd improvomenls, loss reasonablo wear and war, with all
                                  mechanioal, e!octrlcal, plumbing and other •Y.Btems and componenla in
                                  good vioiking order llll_d in a "broom-clean''. coltditloo. Prlor to tho
                                  Declaration Dale>, tho Buyer oan enter into a eontraot to the soil the
                                  P.rapcrty and wlll be enl!Ui:d to all proceeds from such B!ile. Should the
                                  Buyer enter:lnto a contract to soil the property, !ha Buy Baok Option. will
                               · Immediately terminate and will no longer be available kl Buyor. If,
                                 howevor, Buyer thnely l!lltl properly elects to invoke th" Buy Be.ok Option
                                 and !ho olosltig of !M repurobase tm.. placa, then Buyer walVOB and
                               · relinquishes auy and all ~!alms !hey may h11v• to ally proooeds fu>m the>
                                 s11llsequenteale ofthi! Property by SelleJ; arul Buyar shall not b" lil!blo fu~
                                llll}' loss !ncutted by Seller from the aubsequettt sale oftlte:Proporty,




.·
                                                                                                                   ·---     ------------




                                                       Tfthecostto .repairis losstlmn $1-00,000, then Buyer shall, atBuyer'ssole
                                                       cost and expense, repair lll!d restore the home to :its prior condition in
                                                       order for Buyer to hav'" the right to eJ>.'etcise the repurchase optiop. If
                                                       Buyer ihlls to timely and properly repair and restore the Properly prlorto
                                                       Buy Back option date, then. Seller may terminate the Buy Back Option.

                                             2.        BUYER"S IMPROVEMENTS: Befure commencing construction, Buyer
                                                       m11 review with Seller the plans and specification and receive general
                                                        consent (consent not to he unreasonably withheld) to proceed with the
                                                        improvel!lents. Buyer w!ll periodicslly (on a reasonable basis) update
                                                       .Se.ller regsrding progress and timelines on completing the improvements.
                                                        Seller understands that Bnyer has therlghtfo make minor changes end
                                                        decisions during the process ofcompleting 1he improvements provided
                           ..                          1hey are In the best interest of completing the improvements in tho most
                                                       logical and reasonable m~·. Buyer will als1> complete thi>
                                                       improvements (i) in a good worlanaolike manner, free from material
                                                       defue!s, (ii) in aocordance with all laws, ordinances, statutes, rules,
                                                       reg.ulations and any and llllrestriotions and othennattem ofrecord
                                                      appli¢ahle thereto; and (ill) free ofany liei:is or claims ofany kind or
                                                      cluiracter, end Buyer shall absolutely aod unccnditlonally save, defend, or
                                                      imlemnify and hold harmless Sellerfrrun and against any and all
                                                      reasonable attorney's rees filld disbmwments and all damages whicltlllJly
                                                      arise byretlSOll. ¢'Buyer's peribDlll!IWe ofany work fueteto or Boyer's
                                                     .:fuifure to doss required hereby or the Escrow Agreement (hereinafter
                                                      defined).

                                        3.           ESCROW A.GREEMBNT: The ar.aoh..-d Addendum B is a spreadsheet of
                                                     =:;;~ts ancl costs proposed by !he Buyer to be maae to tbe     .                   1r-\-eJt>'?"'/
                                                                                                             &yet agrees to =row/           ~
                                                            funds tolal.ing $156     •                   mpany WJd en~ into an                    ·
                                                            Escrow Agreement (herein so called), acceptable to Seller and.Buyer, that
                                                            outlllres the proposed improvements to the property anil the disbursement
                                                            ofsuch fund/I. Bnyel.' acceptarisk of any improvement cost C>YemJJlS in
                                                           excess of$1S6,871.00, however, ifimprovements cosh! do not exceed the
· --·------------ ·- -·- ·-··---· ··--· --·- - ----· -- · ·-f156,87l.OO allocated bridget, Buyer may use the remaining funds mid
                                                           apply to otherhnprovenwnls not.speoified in Addendum B.

                                       4..          Doub Hiclrol::and VanShawaspa.-tners:iJ). VSDHVaqnero VentureLm.
                                ;.·                Each hereby personally guaranty Selle1's obligatians under the Buy Back
                                                    Option gtaIJted from VSDH to Buyer hereunder. In the event VSDH fails
                                                    to perl'onn fully under the lx:!:ms of the Buy Back Option, each ofits
                                                   partners set furfh heJ.in above·?Jiall be persanally responsible, jointly and
                                                   severally, lo poribrm the obligations ofVSDH under the Buy Back
                                                  ·Option.




   !   .
                                                                 -
                                                                                                                                                                                                             ....


                                                    S. ·       Bul'l'f = t h e right to canrel Bu:~·::siu;:k bption after the declllX>llim't
                                                               d.alf> provldcd that Sdller has not e:nt=d into apurollttsc coottac::t wiih a
                                                               thiJ:d pmty o.u 2004 White W'tng.. .
                                                   Inllrldition. in.pamgraph 15 in tbc body ofthe ~under lJEFAULT, Seller
                                                   reimlates Iangaage slrlcl::ett "seek. sgcb ntb« rclief!IS mu bQ provided by law. Qt
                                                  . l!!!!b::




                                                                                                                                                                                                                               I
                                                                                                                                                                                                                               '




-··   ·~---   .........   ---······-··~-   .. "···-·---··-···            . --·· ....... ......
                                                                                       ·~        -~~·---..   -·- ·--···-   - · - · - ...   ·•---   , . , .• . . . _ . _ , , . , , _ , . _   P-   •••-----•    •   '   ... ,.
                                                                                      'I
                                                                                      I
                                                                   :mmrlll•n



Stone Labor - Wall-Off NC                           6      432
Stone Border Around Front Patio              45     10     450




                                             1092
Paint - Master                                 1    500
Paint - Faver                                  1    600
Paint- FR                                      1    700
Paint- Halls                                   1    600
Paint - Stairs                                 1    300
Paint-BR#4 & Bath                              1    400
                                  ~------




                                            --:r



                                                    1000
 Apollances                                         3000   1,500

                                                                               }f(.

                                                                   kv-·f\
                                  C.OOperOScully                A /'m/o.1wn<1/ Curporarwn




JANAS. REIST




                                                      June 2, 2010


VIA HAND DELIVERY

John Warren
County Court Clerk
300 Records Bldg.
509 Main Street
Dallas, Texas 75202

        Re:         VSDH Vaquero Venture, Ltd. v. Kenneth P. Gross and Betsy L. Gross, Cause No.
                    CC-09-05232-A, on file in the County Court at Law No. 1, Dallas County, Texas
                    Our File No.: 1903-17168

Dear Mr. Warren:

        Attached please find an original and one (1) copy of Ken Gross' and Betsy Gross' Second
Amended Counter-Claim Against VSDH Vaquero Venture, Ltd., Evan L. Shaw, and Douglas M
Hickok and First Amended Third-Party Petition Against VSDH Vaquero Homes, Inc. and VSDH
Homes, Inc. for filing in the above referenced matter. Please return via the waiting courier a
copy of the filed stamped copy for our file. Plaintiffs counsel will receive a copy of this filing
via facsimile and certified mail.

          If you have any questions, do not hesitate to contact the undersigned.

                                                                    Sincerely yours,

                                                                    ~~\~~
                                                                    Jana S. Reist




                                Founders Square 900 Jackson Street, Suite 100 Dallas, TX 75202
                                        Telephone (214) 712-9500 Fax (214) 712-9540
                                                    www.cooperscully.com

Houston Office (713) 236-6800                San Francisco ()ffice (415) 956-9700                Sherman Office (903) 813-3900
D/767483.J
June 2, 2010
Page 2


JSR/tsh
Attachment

Cc: Evan Lane (Van) Shaw (via certified mail &facsimile 214. 754. 7115)
    Law Offices of Van Shaw
    2723 Fairmount Street
    Dallas, Texas 75201
    Attorney for Plaintiff




D/767483.1
TAB 9
I
                                                                 iJ,:i ,        '' '(.

                                      CAUSE NO. CC-09-052~foc~~                          :·•
                                                                   ·/.,12;"
    VSDH v AQUERO VENTURE, LTD.                  §        IN THE COUNTY CmRq;4
                                                 §
           Plaintiff                             §
                                                 §
    v.                                           §
                                                 §
    KEN GROSS and BETSY GROSS                    §        ATLAWNUMBER I
                                                 §
           Defendants                            §
                                                 §
    v.                                           §
                                                 §
    EVAN L. SHAW and DOUGLAS M.                  §
    HICKOK                                       §
                                                 §
           Intervenors                           §        DALLAS COUNTY, TEXAS


     COUNTER-DEFENDANTS' SECOND SUPPLEMENTAL ANSWER AS AN ADDITION
         TO COUNTER-DEFENDANTS' FIRST SUPPLEMENTAL ANSWER AND
             COUNTER-DEFENDANTS' FIRST AMENDED ANSWER TO
             DEFENDANTS/COUNTER-PLAINTIFFS' COUNTERCLAIM

    TO THE HONORABLE JUDGE OF SAID COURT:

            Come now Plaintiff VSDH VAQUERO VENTURE, LTD., Intervenor/Counter-Defendant
    EVAN L. SHAW and Intervenor/Counter-Defendant DOUGLAS M. HICKOK, jointly and
    hereinafter referred to as "Counter-Defendants", and file this their Second Supplemental Answer as
    an Addition to Counter-Defendants' First Supplemental Answer and Counter-Defendants' First
    Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim, and would respectfully show
    unto the Court the following:

                                                     I.

           The pleadings and assertions set forth herein supplement and are in addition to Counter-
    Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim and Counter-
    Defendants' First Supplemental Answer in Addition to Counter-Defendants' First Amended
    Answer to Defendants/Counter-Plaintiffs' Counterclaim. None of the contentions, assertions nor
    defenses set forth in Counter-Defendants' First Amended Answer to Defendants/Counter-Plaintiffs'
    Counterclaim and/or Counter-Defendants' First Supplemental Answer in Addition to Counter-
    Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim are
    withdrawn. This is to be read in addition to and in conjunction with Counter-Defendants' First

    COUNTER-DEFENDANTS' SECOND SUPPLEMENTAL ANSWER IN ADDITION TO FIRST AMENDED ANSWER - Page I
    Ans.Cclaim.Amd 1.Supp2
Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim and Counter-Defendants' First
Supplemental Answer in Addition to Counter-Defendants' First Amended Answer to
Defendants/Counter-Plaintiffs' Counterclaim.

                                               II.

        Further answering, Counter-Defendants would show that Defendants/Counter-Plaintiffs
KEN GROSS and BETSY GROSS first breached the contract made the basis of this suit and, as
such, released Counter-Defendants from all responsibility thereunder.


                                               III.

                                 ALTERNATIVE PLEADING

        All defenses herein, if inconsistent, are made pursuant to Rule 48 of the Texas Rules of
Civil Procedure.



        WHEREFORE, PREMISES CONSIDERED, Counter-Defendants pray that Counter-
Plaintiffs take nothing by reason of their suit and Counter-Defendants go hence without day and
with their costs in this behalf expended and for such other and further relief to which Counter-
Defendants may be justly entitled, both in law and in equity.




                                             EV AN LANE (VAN) SHAW
                                             BarCardNo.18140500
                                             LAW OFFICES OF VAN SHAW
                                             2723 Fairmount Street
                                             Dallas, Texas 75201
                                             (214) 754-7110
                                             FAX NO. (214) 754-7115

                                             ATTORNEY FOR PLAINTIFF/
                                             INTERVENORS/COUNTER-DEFENDANTS




COUNTER-DEFENDANTS' SECOND SUPPLEMENTAL ANSWER IN ADDITION TO FIRST AMENDED ANSWER- Page 2
Ans.Cclaim.Amd l .Supp2
                                  CERTIFICATE OF SERVICE

        The undersigned certifies that a copy of the foregoing instrument was served upon the
attomey~rd of all parties to the above cause in accordance     w. ith the Rules of Civil Procedure,

on this       day of October, 2010.

                                                            .       ,,-
                                                        !       /




COUNTER-DEFENDANTS' SECOND SUPPLEMENTAL ANSWER IN ADDITION TO FIRST AMENDED ANSWER- Page 3
Ans.Cclaim.Amdl .Supp2
                                                                                                      J:   ,



                                           LAW OFFICES
                                               OF                                  ?011.r
                                            VAN SHAW
                                                                                               GZ';
                                                                                                  '<1
                                                                                                               IJ;:
                                           ATTORNEYS AT LAW              ·-'~                    ., . .               lt:o.
                                         2723 FAIRMOUNT
                                                                                . '.DANIEL K HAGOOO
                                                                                  ........                       11   .•
                                                                                                                               ~
    VAN SHAW                               DALLAS, TEXAS 75201                               'AF COUNSEL              ··,!;I
  JANET R. RANDLE                         (214) 754-7110                                      . -~-----
    ERIC GREEN                             FAX NO. (214) 754-7115               CERTIFIEb F'ARALEGALS
                                                                                  RHONDA VIN-~T
                                        www.shawlawoffice.com                      LORI G. MOORE
 •CERTIFIED PUBLIC
   ACCOUNTANT                                                                     APRILS. SUMNER

County Court at Law No. 1                               October 21, 2010
509 Main Street                                         VIA HAND DELIVERY
Records Building                                        =PH (214/653-7556) =
Dallas, TX 75202

RE:    Cause No. CC-09-05232-A;
       VSDH Vaquero Venture, Ltd v. Ken Gross and Betsy Gross

Madam:

Enclosed via hand delivery are the following:

1)     Counter-Defendants' Second Supplemental Answer as an Addition to Counter-Defendants'
       First Supplemental Answer and Counter-Defendants' First Amended Answer to
       Defendants/Counter-Plaintiffs' Counterclaim; and
2)     Counter-Defendants' Objection to the Affidavit of Kenneth P. Gross attached to Counter-
       Plaintiffs' Partial Motion for Summary Judgment Against VSDH Vaquero Venture, Ltd.
       and Douglas M. Hickok on Counter-Plaintiffs' Breach of Contract Claim and Declaratory
       Judgment Action

Please file the same with the Court's records and return a file-marked copy to the undersigned.

By copy of this letter, a true and correct copy of the above instrument was this date forwarded to all
counsel of record.

Thank you for your assistance.

Yours very truly,
              I


vans~/
VS/Im
Enclosures - hand delivery

cc:    See attached Service List.
       Mr. Doug Hickok, Via E-Mail (dhickok@marquisgroup.net)
       Ms. Darcy Topolski, Via E-Mail (dtopolski@marquisgroup.net)
                                  SERVICE LIST


R. Brent Cooper                           FAX (214/712-9540)
Jana Starling Reist                       =PH (214/712-9500) =
COOPER & SCULLY                           brent.cooper@cooperscully.com
900 Jackson Street, Suite 100             jana.reist@cooperscully.com
Dallas, Texas 75202

       Attorney for Defendants Kenneth P. Gross and Betsy L. Gross

Kenneth B. Chaiken                        FAX (214/265-1537)
Chaiken & Chaiken, P.C.                   =PH (214/265-0250)=
One Galleria Tower                        kchaiken@chaikenlaw.com
13355 Noel Road, Suite 600
Dallas, Texas 75240

       Attorney for Intervenor DOUG HICKOK

********************************

Van Shaw represents Plaintiff VSDH VAQUERO VENTURE, LTD, Intervenor, VAN
SHAW and Third-Party Defendants VSDH VAQUERO HOMES, INC. and VSDH
HOMES, INC.
TAB 10
                                                                                                   Filed
                                                                                                   11 April 28 P1:48
                                                                                                   John Warren
                                                                                                   County Clerk
                                                                                                   Dallas County
                                  CAUSE NO. CC-09-05232-A

VSDH VAQUERO VENTURE, LTD.                        §           IN THE COUNTY COURT
                                                  §
       Plaintiff/Counter-Defendant,               §
                                                  §
v.                                                §
                                                  §
KEN GROSS and BETSY GROSS                         §           AT LAW NUMBER I
                                                  §
       Defendants/Counter-Plaintiffs,             §
                                                  §
v.                                                §
                                                  §
EVAN L. SHAW and DOUGLAS M.                       §
HICKOK                                            §
                                                  §
       Intervenors/Counter-Defendants,            §           DALLAS COUNTY, TEXAS


            INTERVENOR/COUNTER-DEFENDANT DOUGLAS M. HICKOK'S
                   AMENDED AND SUPPLEMENTAL ANSWER TO
               DEFENDANTS/COUNTER-PLAINTIFFS' COUNTERCLAIM

TO THE HONORABLE JUDGE:

       Intervenor/Counter-Defendant Douglas M. Hickok ("Hickok") files this Amended and

Supplemental Answer to Defendants/Counter-Plaintiffs' Ken Gross' and Betsy Gross'

Counterclaim, and respectfully shows as follows:

       1.      Hickok previously has asserted (and he continues to assert) the following

affirmative defenses and/or specific denials to the Grosses' counterclaims:

               a.     The Grosses breached the subject contract and released Hickok from
                      responsibility thereunder;

               b.      The Grosses' counterclaims and third-party claims are barred by the
                       economic loss doctrine;

               c.      There is a defect in the parties, Hickok is not a proper party and is not liable
                       in the capacity in which he has been sued;

INTERVENOR/COUNTER-DEFENDANT DOUGLAS M. HICKOK'S
AMENDED AND SUPPLEMENTAL ANSWER TO
DEFENDANTS/COUNTER-PLAINTIFFS' COUNTERCLAIM                                                    Page 1
               d.     There is a defect in the parties in that Hickok did not individually execute
                      the contract made the basis of this suit and is not liable for the claims made
                      the basis of this suit;

               e.     Hickok denied execution of any written agreement made the basis of this
                      lawsuit in his individual capacity;

               f.     Hickok denies the Grosses' alleged compliance with conditions precedent,
                      and he pleads failure of conditions precedent, including:

                      1.      denial of execution of the subject contract;

                      11.     failure of the Grosses to obtain written and required approval for the
                              improvements of the property; and,

                      111.    failure to establish exceptions to the statute of frauds;

               g.     Estoppel and waiver;

               h.     Negligence;

               1.     Failure to state a viable claim for declaratory relief;

               J.     Claims bar under the statute of frauds; and,

               k.     Failure to mitigate.

       2.      Based upon issues and facts raised by the Grosses in briefs filed within the past

two weeks, and upon certain summary judgment rulings made by the Court in that time period

and as recently as April 22nd, pleading further or alternatively as may be necessary, Hickok

pleads as follows:

               a.     The Grosses' counterclaims to enforce the alleged guaranty made the basis
                      of this lawsuit against Hickok are barred by the doctrine of impossibility
                      of performance;

               b.     The Grosses' counterclaims to enforce the alleged buy-back provision made
                      the basis of this lawsuit are barred by the doctrine of illusory contracts or
                      promises;

INTERVENOR/COUNTER-DEFENDANT DOUGLAS M. HICKOK'S
AMENDED AND SUPPLEMENTAL ANSWER TO
DEFENDANTS/COUNTER-PLAINTIFFS' COUNTERCLAIM                                                 Page2
               c.      The Grosses' collllterclaims to enforce the alleged guaranty made the basis
                       of this lawsuit against Hickok are barred by a failure of or incomplete
                       execution of the alleged guaranty agreement by one of the alleged
                       guarantors;

               d.      The Grosses' collllterclaims to enforce the alleged guaranty and the buy-
                       back obligation made the basis of this lawsuit are both barred by lack of
                       consideration and/or a failure of consideration;

               e.      To the extent the alleged guaranty obligation is found to be enforceable
                       against Hickok (which he continues to deny), any recovery from Hickok is
                       limited to his limited partner's contribution at the time the alleged guaranty
                       was made; and,

               f.      The Grosses counterclaims for fraud or breaches of alleged off-contract
                       understandings are barred, in whole or in part, by the doctrine of merger.

        WHEREFORE, Counter-Defendant Douglas M. Hickok prays that Collllter-Plaintiffs take

nothing by their suit against him, and that he be discharged with costs of court, attorney ' s fees, and

such other and further relief to which he may be entitled.


                                                Respectfull~


                                                Kenneth B. Chaiken
                                                State Bar No. 04057800

                                                CHAIKEN & CHAIKEN, P.C.
                                                One Galleria Tower
                                                13355 Noel Road, Suite 600
                                                Dallas, Texas 75240
                                                (214) 265-0250 telephone
                                                (214) 265-1537 facsimile

                                                ATTORNEY FOR INTERVENOR/
                                                COUNTER-DEFENDANT
                                                DOUGLAS M. IDCKOK



INTERVENOR/COUNTER-DEFENDANT DOUGLAS M. HICKOK'S
AMENDED AND SUPPLEMENTAL ANSWER TO
DEFENDANTS/COUNTER-DEFENDANTS' COUNTERCLAIM                                                     Page 3
                                  CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of Intervenor/Counter-Defendant Douglas M.
Hickok's Second Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim has been
served upon all counsel of record by facsimile and certified mail on this J "8'rf/..v.Iay of April, 2011.




                                                Kenneth B. Chaiken



                                            VERIFICATION

STATE OF TEXAS                          §
                                        §
COUNTY OF DALLAS                        §

        BEFORE ME, the undersigned authority, on this day personally appeared, Douglas M.
Hickok, being by me duly sworn on his oath, deposed and said that he has read paragraphs 1(c),
l(d), l(e), l(f) and 2(d) in the above and foregoing amended and supplemental answer, and every
statement contained therein is within his knowledge and is true and correct.




                                                Douglas M. Hickok


        Subscribed and sworn to before me this the 2~                day of _ ..._
                                                                               A- -"-Fp"-'----i_,l,____ __ _
2011, to certify which witness my hand and seal of office.



                                                Nok~ofTexas


INTERVENOR/COUNTER-DEFENDANT DOUGLAS M. IDCKOK'S
AMENDED AND SUPPLEMENTAL ANSWER TO
DEFENDANTS/COUNTER-DEFENDANTS' COUNTERCLAIM                                                         Page4
TAB 11
                             CAUSE NO. CC-09-05232-A

VSDH VAQUERO VENTURE, LTD.                          §   IN THE COUNTY COURT
                                                    §
        Plaintiff                                   §
                                                    §
v.                                                  §
                                                    §
KEN GROSS and BETSY GROSS                           §   ATLAWNUMBER 1
                                                    §
        Defendants                                  §
                                                    §
v.                                                  §
                                                    §
EVAN L. SHAW and DOUGLAS M.                         §
HICKOK                                              §
                                                    §
        Intervenors                                 §   DALLAS COUNTY, TEXAS

         11:\-t<TI AU.'{
ORDEJ}GRANTING INTERVENOR EVAN L. SHAW'S NO-EVIDENCE MOTION
                  FOR SUMMARY JUDGMENT

                                         IJtl....
        Came on to be heard on the   _a day of April, 2011, Intervenor Evan L. Shaw's
No Evidence Motion for Summary Judgment, and the Court, after review of pleadings on

                                                                                   -lo
file and hearing the arglllllent of counsel, is of the opinion same should be GRANTED-'14        ,/
 i(E"f.J ~i:?DSS and- Be'fs'< ~'205'5' 6eeACH of-c::oµn~:r-c~s e)f=h..T/tJiJ1 tlfl"'-
         IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Intervenor                   ((

Evan L. Shaw's No Evidence Motion for Summary Judgment is GRANTED in      itf~~heey. ~f~fV(.;
                                                                                        IT>,
        IT IS SO ORDERED.                                                               (Wtti~
                                                                                        (Jf\ ~
        Signed thi~ay of April, 2011.                                                   ~(Af>-
                                                                                         11"1~
                                                                                        ~alt,
                                                                                        ~f:taot-1
Upon Entry, Please Return to:
Law Offices of Van Shaw
2723 Fairmount
Dallas, Texas 75201
                                                                                    ?ub?e;,,Vl'(/f-
214/754-7110                                                                       .Jofu rfhe1
                                                                                   b0eh"nq dut-
                                                                                   ,0    jLt.~ylD
                                                                                  e~!tAaAt1 I
Order - Page I of I                                                               ljJQr(l~I~
                                                                                   -0    p11'1 ~ 1J7
TAB 12
                                  CAUSE NO. CC-09-05232-A


VSDH VAQUERO VENTURE, LTD.                   §
                                             §
       Plaintiff                             §
                                             §
v.                                           §
                                             §
KEN GROSS and BETSY GROSS                    §        AT LAW NUMBER 1
                                             §
       Defendants                            §
                                             §
v.                                           §
                                             §
EV AN L. SHAW and DOUGLAS M.                 §
HICKOK                                       §
                                             §
       Intervenors                           §        DALLAS COUNTY, TEXAS


 PLAINTIFF/COUNTER-DEFENDANT VSDH VAOUERO VENTURE, LTD.'S THIRD
SUPPLEMENTAL ANSWER AS AN ADDITION TO COUNTER-DEFENDANTS' FIRST
AND SECOND SUPPLEMENTAL ANSWERS AND COUNTER-DEFENDANTS' FIRST
AMENDED ANSWER TO DEFENDANTS/COUNTER-PLAINTIFFS' COUNTERCLAIM


TO THE HONORABLE JUDGE OF SAID COURT:

        Come now Plaintiff/Counter-Defendant VSDH VAQUERO VENTURE, LTD. hereinafter
referred to as "Counter-Defendant" or "VSDH" and files this its Third Supplemental Answer as an
Addition to Counter-Defendants' First and Second Supplemental Answers and Counter-
Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim, and would
respectfully show unto the Court the following:


                                                 I.

        The pleadings and assertions set forth herein supplement and are in addition to Counter-
Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim and Counter-
Defendants' First and Second Supplemental Answers in Addition to Counter-Defendants' First
Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim.        None of the contentions,
assertions nor defenses set forth in Counter-Defendants' First Amended Answer to
Defendants/Counter-Plaintiffs' Counterclaim and/or Counter-Defendants' First and Second
Supplemental Answers in Addition to Counter-Defendants' First Amended Answer to
THIRD SUPPLEMENTAL ANSWER TO COUNTERCLAIM - Page I
 '.
Defendants/Counter-Plaintiffs' Counterclaim are withdrawn. This is to be read in addition to and in
conjunction with Counter-Defendants' First Amended Answer to Defendants/Counter-Plaintiffs'
Counterclaim and Counter-Defendants' First and Second Supplemental Answers in Addition to
Counter-Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim.

                                                II.

        Based upon issues and facts raised by the Grosses in briefs filed within the past two weeks,
and upon certain summary judgment rulings made by the Court in that time period and as recently
as April 22°d, pleading further or alternatively as may be necessary, VSDH pleads as follows:

               a.      The Grosses' counterclaims to enforce the alleged guaranty made the basis
                       of this lawsuit against Shaw/Hickok are barred by the doctrine of
                       impossibility of performance;

               b.      The Grosses' counterclaims to enforce the alleged buy-back provision made
                       the basis of this lawsuit are barred by the doctrine of illusory contracts or
                       promises;

               c.      The Grosses' counterclaims to enforce the alleged guaranty made the basis
                       of this lawsuit against Shaw/Hickok are barred by a failure of or incomplete
                       execution of the alleged guaranty agreement by one of the alleged
                       guarantors;

               d.      The Grosses' counterclaims to enforce the alleged guaranty and the buy-
                       back obligation made the basis of this lawsuit are both barred by lack of
                       consideration and/or a failure of consideration;

               e.      To the extent the alleged guaranty obligation is found to be enforceable
                       against Shaw/Hickok, any recovery from Shaw/Hickok is limited to their
                       limited partner's contribution at the time the alleged guaranty was made; and

               f.      The Grosses' counterclaims for fraud or breaches of alleged off-contract
                       understandings are barred, in whole or in part, by the doctrine of merger.


                                                III.
                                 ALTERNATIVE PLEADING

        All defenses herein, if inconsistent, are made pursuant to Rule 48 of the Texas Rules of
Civil Procedure.




THIRD SUPPLEMENTAL ANSWER TO COUNTERCLAIM - Page 2
       WHEREFORE, PREMISES CONSIDERED, Counter-Defendant VSDH prays that
Counter-Plaintiffs take nothing by their suit against it, and that it be discharged with costs of court,
attorney's fees, and such other and further relief to which it may be entitled.


                                                Respectfully submitted,




                                                EVAN LANE (VAN) SHAW
                                                Bar Card No. 18140500
                                                LAW OFFICES OF VAN SHAW
                                                2723 Fairmount Street
                                                Dallas, Texas 75201
                                                (214) 754-7110
                                                FAX NO. (214) 754-7115

                                                ATTORNEY FOR PLAINTIFF/
                                                INTERVENOR/COUNTER-DEFENDANT




                                    CERTIFICATE OF SERVICE

        The undersigned certifies that a copy of the foregoing instrument was served upon the
attorneys of record of all parties to the above cause in accordance with Rules of Civil Procedure,
on this ,jifl\lay of April, 2011.



                                                VAN SHA




THIRD SUPPLEMENTAL ANSWER TO COUNTERCLAIM - Page 3
..

                                                           VERIFICATION

     STATE OF TEXAS                                 )
                                                    )
     COUNTY OF DALLAS                               )

            BEFORE ME, the undersigned Notary Public, on this day personally appeared EVAN L.
     SHAW, who being by me duly sworn on his oath deposed and said that he is over 21 years of age,
     of sound mind and capable of making this Affidavit; that he is an authorized agent of Counter-
     Defendant VSDH VAQUERO VENTURE, LTD. in the above-entitled and numbered cause; that
     he has read the above and foregoing Third Supplemental Answer as an Addition to Counter-
     Defendants' First and Second Supplemental Answers and Counter-Defendants' First Amended
     Answer to Defendants/Counter-Plaintiffs' Counterclaim; and that every statem~nt contained in
     Paragraphs II (d) is within his personal knowledge and is true and correct. ,-/



                                                                   EVANL.

             SUBSCRIBED AND SWORN TO BEFORE ME on the                       ~'day of April, 2011, to
     certify which witness my hand and official seal.


           ~;~--         LORI G. MOORE
              ..::."'\Notary Public. Slate oflexoa
           \,;.\
                       lr
            ~·.............
                              *l   My CommtssiOn Expires
                                       May23.2012




     THIRD SUPPLEMENTAL ANSWER TO COUNTERCLAIM - Page 4
                                              LAW OFFICES
                                                  OF
                                               VAN SHAW

                                              ATTORNEYS AT LAW
        VAN SHAW•
      JANET R. RANDLE                           2723 FAIRMOUNT
        ERIC GREEN                            DALLAS, TEXAS 75201
                                                  (214) 754-7110
     "MEMBER OF COLLEGE                       FAX NO. (214) 754-7115
   OF THE STATE BAR OF TEXAS                www.shawlawoffice.com
"CERTIFIED PUBLIC ACCOUNTANT


    County Court at Law No. 1                              April 29, 2011                  ..,
                                                                                           ·<
    509 Main Street
    ~:l~~;!5cui~~i;~
                        2
                                                           VIA HAND DELIVERY
                                                           =PH (214/653-7556) =      il1




    RE:     Cause No. CC-09-05232-A;
            VSDH Vaquero Venture, Ltd v. Ken Gross and Betsy Gross
                                                                                     r j

    Madam:                                                                            I
    Enclosed via hand delivery are the following:

     1)     Intervenor/Counter-Defendant SHAW's Third Supplemental Answer as an Addition to
            Counter-Defendants' First and Second Supplemental Answers and Counter-Defendants'
            First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim; and

    2)      Plaintif£'Counter-Defendant VSDH's Third Supplemental Answer as an Addition to
            Counter-Defendants' First and Second Supplemental Answers and Counter-Defendants'
            First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim

    Please file the same with the Court's records and return a file-marked copy to the undersigned.

    By copy of this letter, true and correct copies of the above instruments were this date forwarded to
    all counsel of rec d.




    Van Shaw
    VS/Im
    Enclosures - hand delivery
    cc:    See attached Service List.
           Mr. Doug Hickok, Via E-Mail (dhickok@marquisgroup.net)
           Ms. Darcy Topolski, Via E-Mail (dtopolski@marquisgroup.net)
                                  SERVICE LIST


R. Brent Cooper                           FAX (214/712-9540)
Jana Starling Reist                       =PH (214/712-9500) =
COOPER & SCULLY                           brent.cooper@cooperscully.com
900 Jackson Street, Suite 100             jana.reist@cooperscully.com
Dallas, Texas 75202

       Attorney for Defendants Kenneth P. Gross and Betsy L. Gross

Kenneth B. Chaiken                        FAX (214/265-1537)
Chaiken & Chaiken, P.C.                   =PH (214/265-0250)=
One Galleria Tower                        kchaiken@chaikenlaw.com
13355 Noel Road, Suite 600
Dallas, Texas 75240

       Attorney for Intervenor DOUG HICKOK

********************************

Van Shaw represents Plaintiff VSDH VAQUERO VENTURE, LTD, Intervenor, VAN
SHAW and Third-Party Defendants VSDH VAQUERO HOMES, INC. and VSDH
HOMES, INC.
TAB 13
                                                                                                rllED
                                                                                            JOHii F. WARREN
                                                                                             COUNTY CLERK
                                                                                         DALLAS COUNTY, TEXAS
                                   CAUSE NO. CC-09-05232-A
                                                                                       2013 APR IS PH I,: 22
VSDH VAQUERO VENTURE, LTD.,                     §                      IN THE COUNTY COURT
     Plaintiffs/Counter-Defendant,              §
                                                §
v.                                              §
                                                §
KEN GROSS and BETSY GROSS                       §
    Defendants/Counter-Plaintiffs,              §                            AT LAW NUMBER 1
                                                §
v.                                              §
                                                §
EVAN L. SHAW and DOUGLAS M.                     §
HICKOK                                          §
     Intervenors/Counter-Defendants.            §                    DALLAS COUNTY, TEXAS
                                                §

KEN GROSS' AND BETSY GROSS' THIRD AMENDED COUNTER-CLAIM AGAINST
 VSDH VAQUERO VENTURE, LTD., EVAN L. SHAW AND DOUGLAS M. HICKOK
 AND SECOND AMENDED THIRD-PARTY PETITION AGAINST VSDH VAQUERO
                 HOMES, INC. AND VSDH HOMES, INC.

TO THE HONORABLE JUDGE OF SAID COURT:

         COMES NOW, Kenneth P. Gross and Betsy L. Gross, Defendants/Counter-

Plaintiffs/Third-Party Plaintiffs (collectively referred to as "the Grosses"), and hereby files their

Second Amended Petition Against VSDH Vaquero Venture, Ltd., Evan L. Shaw and Douglas M.

Hickock (collectively referred to as "Counter-Defendants") and First Amended Third-Party

Petition Against VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. (collectively referred to as

"Third-Party Defendants"), and for such would respectfully show the Court as follows:

                                                    I.
                                 DISCOVERY CONTROL PLAN

             1.   The parties have entered into an Agreed Level 3 Discovery Control Plan pursuant

to Tex. R. Civ. P. 190.4.




COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION                                                        Page 1
D/877087.1
                                                II.
                                   PARTIES AND SERVICE

         2.    Plaintiff/Counter-Defendant VSDH Vaquero Venture, Ltd. is a Texas Limited

Partnership who is represented by Evan L. Shaw in this action.

         3.    Defendant/Counter-Plaintiff/Third-Party Plaintiff Kenneth P. Gross 1s an

individual who has appeared in this action and is represented by the undersigned counsel.

         4.    Defendant/Counter-Plaintiff/Third-Party Plaintiff Betsy L. Gross is an individual

who has appeared in this action and is represented by the undersigned counsel.

         5.    Intervenor/Counter-Defendant Douglas M. Hickok ("Hickok") is a Texas resident

who has appeared in this action and is represented by Evan L. Shaw in this action.

         6.    Intervenor/Counter-Defendant Evan L. Shaw ("Shaw") is a Texas resident who

has appeared in and who is representing himself in this action.    The Grosses recognize that

Shaw has been given a summary judgment in this case and are continuing to name him in this

pleading so as to avoid any confusion should there be an appeal that they wish to continue to

pursue their claims against him.

         7.    Third-Party Defendant VSDH Vaquero Homes, Inc. is a Texas General

Partnership whose principal place of business is at 5305 Village Creek, Plano, Texas 75093. It

may be served with process by serving its President, Douglas M. Hickok at 5305 Village Creek

Drive, Plano, Collin County, Texas 75093.

         8.    Third-Party Defendant VSDH Homes, Inc. is a Texas General Partnership whose

principal place of business is at 5305 Village Creek, Plano, Texas 75093. It may be served with

process by serving its Registered Agent and President, Douglas M. Hickok at 5305 Village Creek

Drive, Plano, Collin County, Texas 75093.



COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION                                                        Page 2
D/877087.I
                                             III.
                                   JURISDICTION AND VENUE

              9.   The subject matter in controversy is within the jurisdiction limits of this Court.

The Court has jurisdiction over VSDH Vaquero Homes, Inc. and VSDH Homes, Inc. because

they are Texas general partnerships.

             10.   Venue is proper with regard to this third-party action under section 15.062 of the

TEXAS CIVIL PRACTICE & REMEDIES CODE, as the transaction giving rise to this third-party action

arises out of the same transaction, occurrence, or series of actions or occurrences.

                                                 IV.
                                                FACTS

             11.   On or about June 4, 2006, the Grosses entered into a New Home Contract

("Contract"), promulgated by the Texas Real Estate Commission, with Counter-Defendants and

Third-Party Defendants for the purchase of 2004 White Wing Cove, Westlake, Texas 76262

("the Property"), in the amount of $2,851,871.00. (A copy of the Contract has been attached

hereto as Exhibit"!," and is incorporate herein by reference for all pertinent purposes).

             12.   The Grosses purchased the Property at the full listed price of$2,851,871.00, even

though the Property had been listed for two years, due to the fact that Counter-Defendants agreed

to enter into a "Buy Back Option" with the Grosses.

             13.   According to paragraph 1 ("Buy Back Option") of Addendum A of the Contract,

VSDH Vaquero Venture, Ltd. granted to the Grosses, as Buyers of the Property, the "the option .

. . to put the Property to Seller [VSDH Vaquero Venture, Ltd.] (i.e. require Seller to repurchase

the Property for the original "Sales Price" of $2,851,871.00) on September I, 2009, or such

earlier date as may be mutually agreed between Buyer and Seller . . .. " See Addendum A to

Exhibit I.


COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION                                                        Page 3
D/877087.l
         14.      Hickok and Shaw are limited partners of VSDH Vaquero Venture, Ltd. and

participated and controlled Counter-Defendants and Third-Party Defendants sell of the Property

to the Grosses and benefitted from the sell to the Grosses.

         15.      Further, according to paragraph 4 of Addendum A, Hickok and Shaw both agreed

to be personally responsible, jointly and severally, in the event VSDH Vaquero Venture, Ltd.

does not fully perform under the terms of the Buy Back Option. Neither Hickok nor Shaw

conditioned his personal guaranty on the other being liable as well. Neither Hickok, Shaw nor

anyone else ever informed the Grosses that their personal liability was conditioned on the other

guarantor's liability.

         The "Buy Back Option" provides the following:

             VSDH Vaquero Venture Ltd (VSDH), as Seller, hereby grants to Kenneth
             P. and Betsy L. Gross (Gross), as Buyer, of 2004 White Wing Cove in
             Vaquero subdivision, Westlake, Texas (the Property) the option (the "Buy
             Back Option") to put the Property to Seller (i.e. require Seller to repurchase
             the Property for the original "Sales Price" of$2,851,871.00) on September
             I, 2009, or such earlier date as may be mutually agreed between Buyer and
             Seller, in writing (the "Buy Back Date"), subject to the following terms and
             conditions.

The Buy Back Option further provides requirements and deadlines on how the Grosses would

exercise the Option. The Grosses followed those requirements.

         Further, according to paragraph 4 of Addendum A, Hickok personally guaranteed the

Buy Back Option. Paragraph 4 provides the following:

             Doug Hickok and Van Shaw as partners in VSDH Vaquero Venture, Ltd.
             each hereby personally guarantee [sic] Seller's obligations under the Buy
             Back Option granted from VSDH to Buyer hereunder. In the event VSDH
             fails to perform fully under the terms of the Buy Back Option, each of its
             partners set forth herein [sic] above shall be personally responsible, jointly
             and severally, to perform the obligations of VSDH under the Buy Back
             Option.



COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION                                                        Page 4
D/877087.1
         The Contract further required the Grosses to construct improvements on the Property.

The Grosses constructed over $150,000 worth of improvements to the home.

         The Grosses timely exercised the Buy Back Option, putting Hickok on notice of the

Grosses' intent to the sell the Property back to VSDH.         Hickok has testified that VSDH has

"absolutely not" been insolvent since this transaction. In any event, VSDH, Shaw and Hickok

failed to buy the Property back and perform their contractual obligations as required under the

Contract.

         Only after VSDH, Hickok and Shaw had affirmatively represented that they had no

intention of honoring the Buy Back Option, did the Grosses sell the Property in August 2009 for

$2,415,600 in an effort to mitigate their damages and avoid foreclosure of the home. VSDH and

Hickok's breach and fraud has cost the Grosses actual damages of over $550,000 for the

difference between the bargained-for "guaranteed" buy-back value and the amount of the actual

sale, realtor fees, closing costs, and fees associated with the sale of the Property.

             16.   Under the signature line of the Contract, VSDH Homes, Inc. is listed as the

general partner ofVSDH Vaquero Venture, Ltd. However, according to the Texas Secretary of

State's office, VSDH Vaquero Homes, Inc. is listed as VSDH Vaquero Venture, Ltd.'s general

partner.

             17.   In accordance with the terms of the Buy Back Option, the Grosses exercised the

Buy Back Option by delivering written notice to Shaw and Hickok before May 1, 2009 of the

Grosses' intent to sell the Property back to Counter-Defendants and Third-Party Defendants.

             18.   However, Shaw and Hickok communicated to the Grosses that Counter-

Defendants and Third-Party Defendants do not intend to buy the Property back and perform their




COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION                                                        Page 5
D/877087.I
contractual obligations as required under Addendum A to the Contract. Counter-Defendants and

Third-Party Defendants failed to purchase the property back.

         19.      The Grosses therefore seek construction of the Contract, including Addendum A,

to determine whether or not Counter-Defendants and Third-Party Defendants breached the

Contract by refusing and failing to buy the Property back from the Grosses pursuant to the

Contract for the original sales price of$2,851.871.00.

         20.      In an effort to mitigate their damages and avoid foreclosure of the home, the

Grosses sold their home for $2,415,600.

                                                  v.
                                  DECLARATORY JUDGMENT

         21.      All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section.

         22.      This is an action for declaratory judgment pursuant to the Texas Declaratory

Judgment Act, Ch. 37.001 et. seq. of the TEX. C1v. PRAC. & REM. CODE, for the purpose of

determining an actionable and justiciable controversy between the parties, as hereinafter more

fully appears. The controversy involves Counter-Defendants' and Third-Party Defendants' duty

to perform their obligations arising under the "Buy Back Option," Addendum A, to the Contract.

         23.      Based upon the clear terms of Addendum A to the Contract (Exhibit 1), Counter-

Defendants and Third-Party Defendants were obligated to buy the Property back from the

Grosses pursuant to the terms of the Contract for the original sales price of $2,851.871.00.

         The provision of the personal guaranty in the Contract addendum states the following:

               Doug Hickok and Van Shaw as partners in VSDH Vaquero Venture,
               Ltd. each hereby personally guaranty Seller's obligations under the Buy
               Back Option granted from VSDH to Buyer hereunder. In the event
               VSDH fails to fully perform under the terms of the Buy Back Option,
               each of its partners set forth herein above shall be personally

COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION                                                        Page 6
D/877087 I
              responsible, jointly and severally, to perform the obligations of VSDH
              under the Buy Back Option

"Jointly and severally" means that liability may be apportionable either among two or more

parties or to only one; together and in separation. BLACK'S LAW DICTIONARY (Second Pocket

Edition, 2001) (emphasis added). The fact that the guaranty provides the terms ')ointly and

severally" only further obligates Hickok's own personal liability, whether or not Shaw is liable.

The Texas Supreme Court has stated that "when the obligation of the sureties is joint and

several, the discharge of one of them does not release the others from payment of their proper

proportion of the claim." Glasscock v. Hamilton, 62 Tex. 143, 150 (1884). The Texas Supreme

Court has further offered the following analysis:

             When a plaintiff alleges that two parties to a contract made him a promise,
             although under the rule at common law as to joint and several contracts, that
             is a joint promise, yet the allegation necessarily means that each of them
             promised. Hence we see no good reason why, although he has alleged the
             promise of the two, he should not recover against one upon proof that he
             promised, although he may fail to prove the promise of the other.

McDonald v. Cabiness, 100 Tex. 615, 616, I 02 S.W. 721, 722 (1907). Thus, looking to the plain

language of the personal guaranty, Hickok is obligated to it whether or not Shaw is obligated.

         Texas law requires that (I) the surety (Hickok) signed the guaranty on a condition that

another (Shaw) was to sign, and (2) the obligee (the Grosses) to the personal guaranty had

knowledge of such a condition. Hickok did not sign on the condition that Shaw would also sign

the guaranty. Hickok did not inform the Grosses of such a condition to his signing. Hickok has

denied even signing in his personal capacity, and cannot now argue that he signed personally in a

conditional capacity.

         Hickok cannot claim that he signed it on a condition that Shaw was to sign it. Hickok

first raised this legal argument a few days before the first trial setting, but even then never

affirmatively claimed that he signed the personal guaranty on the condition that Shaw was to also
COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION                                                        Page 7
D/877087.1
sign it. At Hickok's deposition, he testified that he is not liable because he never "signed on

behalf of [our] personal beings." He never made any such contention that Shaw's signature was

a required factor. Also, there is no language in the personal guaranty or the entire Contract that

states such a condition exists.

         Further, the Grosses were never made aware that such a condition existed. The first time

the Grosses were even aware that Hickok was making such a contention was a few days before

the first trial setting in May of 2011. Hickok has no evidence that the Grosses were aware that

such a condition existed.

         There is no language in this provision, or appearing anywhere else in the Contract,

requiring both Hickok and Shaw's signatures on the Contract or personal guaranty before either

can become personally liable. The plain language of the agreement states that the personal

guaranty may be enforced as to both or only one partner.

         The language of the provision itself can only be reasonably interpreted to mean what it

says - that Hickok agreed personally to perform the Buy Back Option in the event VSDH failed

to perform. The description of "partner," does not limit Hickok's liability. To do so ignores the

clear language of the "personal" guaranty. Texas case law has firmly held that a designation in a

personal guaranty is only to point out the person intended and not to limit such individual's

liability.

         The language of the guaranty provision in this case only states that Hickok is a "partner"

in VSDH, but does NOT state that his "personal" guarantee is limited to his capacity as a partner

(limited partner language is nowhere in guaranty). The words "guaranty" and "guarantor" have

distinct legal meanings, i.e., a guaranty is an undertaking by one person to answer for the

payment of a debt or performance of a contract or duty of another.


COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION                                                        Page 8
D/877087.l
         Hickok's status as a limited partner, which is not even stated in the personal guaranty

provision, does not mean he cannot personally obligate himself for the obligations of the limited

partnership. Texas law has found that a limited partner can personally obligate himself for

liabilities of his limited partnership. Further, even if the language on the guaranty did not

provide that Hickok made a personal guaranty (which it clearly did), Hickok's designation as

"partner" in the guaranty and his control over the transaction personally obligates him under

TEXAS BUSINESS ORGANIZATIONS CODE§ 153.102. Under Texas Business Organizations Code

§ 153.102(a), a limited partner can be liable for the obligations of a limited partnership if the

limited partner participates in the control of the business. "If the limited partner participates in

the control of the business, the limited partner is liable only to a person who transacts business

with the limited partnership reasonably believing, based on the limited partner's conduct, that the

limited partner is a general partner." Id. 153.102(b). Hickok was the individual who negotiated

the Contract and participated in the control of this agreement. Further, the term "partner" in the

personal guaranty and Hickok's conduct would lead the Grosses to reasonably believe he was in

fact a partners, i.e. general partners, of VSDH.

         24.    Accordingly, the Grosses seek a declaration from this Court, as follows:

                I.     VSDH Vaquero Venture, Ltd. was obligated to buy the Property back
                       from Kenneth P. Gross and Betsy L. Gross on or before September 1,
                       2009 for the original sales price of$2,85!,871.00

                2.     In the event VSDH Vaquero Venture, Ltd. failed to timely buy the
                       Property back from Kenneth P. Gross and Betsy L. Gross, Douglas M.
                       Hickok and Evan L. Shaw were personally responsible, jointly and
                       severally, to buy the Property back on or before September I, 2009 for the
                       original sales price of$2,851,871.00.




COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION                                                        Page 9
D/877087.1
                                             VI.
                                     BREACH OF CONTRACT

         25.   All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section. The Grosses adopt herein the arguments made above.

         26.   The Grosses adopt herein the arguments made above.         As stated above, the

Grosses entered into a valid and enforceable contract with Counter-Defendants and Third-Party

Defendants.    See Exhibit I.    The Grosses have fulfilled all requirements, statutorily and in

accordance with the terms of the Buy Back Option, by delivering written notice to Hickok and

Shaw before May I, 2009 of the Grosses' intent to sell the Property back to Counter-Defendants

and Third-Party Defendants. Counter-Defendants and Third-Party Defendants have materially

breached the Contract in that they have repudiated the contract and failed to proceed with the

purchase of the Property.        Counter-Defendants' and Third-Party Defendants' breach has

proximately caused the Grosses' damages.

         27.   The Grosses request that a judgment be entered against Counter-Defendants and

Third-Party Defendants for actual damages.       As a direct and proximate result of Counter-

Defendants' and Third-Party Defendants' failure to perform under the Contract, the Grosses have

been damaged in an amount in excess of the jurisdictional limits of the Court, for which they

seeks appropriate judicial relief.

                                               VII.
                        FRAUD IN A REAL ESTATE TRANSACTION

         28.    All factual allegations set forth elsewhere in this petition are incorporated by

reference in support of this section. The Grosses adopt herein the arguments made above.

         29.    The Grosses will show that Counter-Defendants' and Third-Party Defendants'

conduct constitutes fraud in a real estate transaction as defined by Section 27.01 of the TEXAS

BUSINESS & COMMERCE CODE. Counter-Defendants' and Third-Party Defendants' made a false
COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION                                                       Page 10
D/877087.l
representation that they would buy the property back pursuant to the Buy Back Option in order to

induce the Grosses to enter into the Contract.        The Grosses entered into the Contract and

purchased the Property at the full listed price of $2,851,871.00, even though the Property had

been listed for two years, due to the fact that Counter-Defendants and Third-Party Defendants

made the false representation that they would buy the property back pursuant to the "Buy Back

Option." The Grosses' reliance directly and proximately caused them substantial injury, as set

out above, for which they seek appropriate judicial relief.

         A.      Attorneys' Fees

         30.     The Grosses have retained the law firm of Cooper & Scully, P .C. to represent

them in this action and have agreed to pay the firm reasonable and necessary attorneys' fees.

         31.     The Grosses are entitled to recover reasonable and necessary attorney fees that are

equitable and just under TEXAS CIVIL PRACTICE & REMEDIES CODE § 38.001 because it is a suit

for breach of a written contract, and under TEXAS BUSINESS & COMMERCE CODE §27.0l(e)

because this is an suit for statutory fraud. All conditions precedent to the collection of attorneys'

fees have been satisfied.

         B.      Conditions Precedent

         32.     All conditions precedent to the Grosses claims for relief have been performed or

have occurred.

         WHEREFORE, PREMISES CONSIDERED, Defendants Kenneth P. Gross and Betsy

L. Gross pray that their counterclaims against VSDH Vaquero Venture, Ltd., Shaw and Hickok,

joint and several, and third third-party claims against VSDH Vaquero Homes, Inc. and VSDH

Homes, Inc. be granted; that upon final hearing of this matter, a declaratory judgment is entered

as enumerated above; that the Grosses have and recover damages in an amount within the

jurisdictional limits of this Court; pre- and post-judgment interest at the highest lawful rate;
COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION                                                       Page 11
D/877087.1
attorneys' fees and court costs; exemplary damages; and such other and further relief, whether

special or general, to which the Grosses may show themselves justly entitled.

                                            Respectfully submitted,

                                            COOPER & SCULLY, P.C.


                                            By:- =~ B"'-RE"-"N" '/'- "'cr;j" "o'- -~p_,_¥l_, _.RL4.1£.
                                                                                                     ,_ __

                                                     -==o.04783250
                                                        GORDON K. WRIGHT
                                                        State Bar No. 22029600
                                                        JANA STARLING REIST
                                                        State Bar No. 24056890

                                            Founders Square
                                            900 Jackson Street, Suite I 00
                                            Dallas, Texas 75202
                                            Telephone: (214) 712-9500
                                            Facsimile: (214) 712-9540

                                            ATTORNEYS FOR DEFENDANTS
                                            KEN GROSS AND BETSY GROSS

                                CERTIFICATE OF SERVICE

        The undersigned certifies that a true and correct copy of the foregoing document was
forwarded to all counsel of record herein as specified below, on this the 15th day of April 2013,
as follows:

         Evan Lane (Van) Shaw (via CMRRR andfacsimile)
         Law Offices of Van Shaw
         2723 Fairmount Street
         Dallas, Texas 75201
         Attorney for VSDH and Evan L. Shaw

         Kenneth B. Chaiken (via CMRRR and facsimile)
         Chaiken & Chaiken, P.C.
         One Galleria Tower
         13355 Noel Road, Suite 600
         Dallas, Texas 75240
         Attorney for Douglas M Hickok



COUNTER-PLAINTIFFS' THIRD AMENDED COUNTER-CLAIMS AND SECOND AMENDED THIRD
PARTY PETITION                                                       Page 12
D/877087.l
                                                                                                                                FILED
                                                                                                                          JOHN F. WARREN
                                                                                                                        COUIHY CLERK
                                  O:>oper                               Scully
                                                                 A 1'1nfc.,.•10!l<1! (:01'J1om£•<m
                                                                                                                    DALLAS COUNTY. TEXAS

                                                                                                                  2013 APR 15 PH ft: 22


JANAS. REIST                                                                                                           214-712-9571
                                                                                                         Jana.Reist@cooperscully.com




                                                    April 15, 2013


VIA HAND DELIVERY

John Warren
County Court Clerk
George L. Allen Courts Building
600 Commerce Street, 5th Floor
Dallas, Texas 75202

        Re:         VSDH Vaquero Venture, Ltd v. Kenneth P. Gross and Betsy L. Gross, Cause No.
                    CC-09-05232-A, on file in the County Court at Law No. 1, Dallas County, Texas
                    Our File No.: 1903-17168

Dear County Clerk:

       Enclosed please find an original and one (1) copy of Ken Gross' and Betsy Gross' Third
Amended Counter-Claim Against VSDH Vaquero Venture, Ltd, Evan L. Shaw and Douglas M
Hickok and Second Amended Third-Party Petition Against VSDH Vaquero Homes, Inc. and
VSDH Homes, Inc. for filing in the above referenced matter. All counsel of record will receive a
copy of this document via certified mail and facsimile.

          If you have any questions, please do not hesitate to contact me.

                                                                     Yours truly,                      /7 . /I
                                                                     a/)lf;fl)                       .II 1~
                                                                     JJa~~ ;e~~
JSR/tsh
Attachments




                                Founders Square 900 Jackson Street, Suite 100 Dallas, TX 75202
                                        Telephone (214) 712-9500 Fax (214) 712-9540
                                                   www.cooperscully.com

Houston Office (713) 236-6800                San Francisco Office (415) 956-9700                        Sherman Office (903) 813-3900
D/877312.1
April 15, 2013
Page2


cc:    Evan Lane (Van) Shaw
       Law Offices of Van Shaw
       2723 Fairmount Street
       Dallas, Texas 75201
       Attorney for Van Shaw and VSDH Vaquero Venture, Ltd.
       via certified mail and facsimile

       Kenneth B. Chaiken
       Chaiken & Chaiken, P.C.
       One Galleria Tower
       13355 Noel Road, Suite 600
       Dallas, Texas 75240
       Attorney for Douglas M Hickok
       via certified mail and facsimile




D/877312.1
TAB 14
                                                                               Scanned & Saved by:   d-.
                                                                               ~c•n Checked by:J__.
                                          CAUSE NO. CC·09-0S232-A

        VSDH VAQUERO VENTURE, LTD.,                    §                      IN THE COUNTY COURT
             Plaintiffs/Counter-Defendant,             §
                                                       §
        v.                                             §
                                                       §
        KEN GROSS and BETSY GROSS                      §
            Defendants/Counter-Plaintiffs,             §                             AT LAW NUMBER!
                                                       §
        v.                                             §
                                                       §
        EVAN L. SHAW ~nd DOOGLAS M.                    §
        lDCKOK                                         §
             Intervenors/Counter-Defendants.           §                     DALLAS COUNTY, TEXAS
                                                       §
                                     DEFENDANTS/COUN'fER-PLAINTIFFS
                                 KEN GROSS AND BETSY GROSS' WITNESS LIST

        TO THE HONORABLE JUDGE OF SAID COURl':

                COMES NOW, Kenneth P. Gross and Betsy L. Gross (hereinafter referred to as "the

        Grosses"), Defendants/Counter-Plaintifts in the above-entitled and numbered cause, and files this

        their Witness List and designate the following witnesses who may be called to testify at the time

        of trial. The below list represents the Grosses good faith effort to set out a witness list in

        advance of trial. Pre-trial preparations and/or trial may necessitat7 the calling of additional

        witnesses not set out on the below list. To that end, the Grosses res.erve the right to call and/or

         examine any individual identified as a witness on any party's witness list or a person with

         knowledge of relevant facts in any answer to Request for Disclosure or Interrogatories in this

         case. The Grosses resewe the right to designate further witnesses based upon the designations of

         the Plaintiffs/Counter"Defendants and lntervenors/Counter-Defendants.            The Grosses also

         reserve the right to supplement this list in order to rebut testimony elicited by Plaintiffs/Counter-

         Defendants and Intervenors/Comiter-Defendants during trial.


         DEFENDANTS/COUNTER-PLAINTIFFS' KEN GROSS AND BETSY GROSS' WI




S0/G0   39\ld                                                                 l IW0PLP11:
                Plaintiffs also reserve the right to call as a witness at trial the expert witnesses whom

        Defendants and/or Third-Party Defendants have designated as experts in this case.

                                                        I.
                                        PLAINTIFFS' WITNESS LIST

                Kenneth P. Gross
                c/o his attorneys of record:
                Steven E. Aldous
                Braden, Varner & Aldous, P.C.
                703 McKinney Avenue, Suite 400
                Dallas, Texas 75202
                (214) 740-0212
                (214) 740-0217 fax
                Defeodant/Counter-Plaiotift"

                Betsy L. Gross
                c/o her attorneys of record:
                Steven E. Aldous
                Braden, Varner & Aldous, P.C.
                703 McKinney Avenue, Suite 400
                Dallas, Texas 75202
                (214) 740-0212
                (214) 740-0217 fax
                Defendant/Counter-Plaintiff

                Roxann Taylor
                Realty Executives - The Roxann Taylor Team
                640 North Carroll Avenue
                Southlake, Texas 7 6092
                The Grosses' real estate agent for subsequent sale of property

                 Brent Cooper
                 Jana S. Reist
                 Gordon Wright
                 Cooper & Scully, P.C.
                 900 Jackson Street, Suite 100
                 Dallas, Texas 75202
                 (214) 712-9500
                 The Grosses' counsel




         DEFENDANTS/COUNTER-PLAINTIFFS' KEN GROSS AND BETSY GROSS' WITNESS LIST                     Page 2




S0/E0   38\ld                                                                               z9:91   E106/96/11
                 Steven E. Aldous
                 Braden, Varner & Aldous, P.C.
                 703 McKinney Avenue, Suite 400
                 Dallas, Texas 75202
                 (214) 740-0212
                 (214) 740-0217 fax
                 The Grosse~' counsel

                                            II.
                     PEllSONS WHO MAY BE CALLED AS AN ADVERSE WITNESS

                 Van Shaw, individually and as a representative of
                 VSDH Vaquero Venture, Ltd.
                 2723 Fairmount Street
                 Dallas, Texas 75201

                 Doug Hickok, individually and as a representative of
                 VSDH Vaquero Venture, Ltd.
                 c/o his attorney ofrecord:
                 Kenneth B. Chaiken
                 Chaiken & Chaiken, P.C.
                 13355 Noel Road, Ste. 600
                 Dallas, Texas 7 5240

                                                            III.
                                                   OTHER WITNESSES

                 In addition, the Grosses reserve the right to supplement this list pursuant to the Texas

         Rules of Civil Procedure and incorporates by reference any and all individuals and/or entities

         listed by the other parties in their respective Responses to Requests for Disclosures. Further, the

         Grosses hereby incorporate by reference any additional persons who are identified in documents

         produced in the current lawsuit.




          DEFENDANTS/COUNTER-PLAlNTlFFS' KEN GROSS AND BETSY GROSS' WITNESS LIST                      Pago 3




90/1'0   38\ld                 snoa111   ~3N~\IA N3a\l~ff                    L 1G001'L1'1G
                                                            Respectfully submitted,




                                                             TEVEN E. ALDOUS
                                                            State Bar No. 00982100
                                                            saldous@bvalaw.com
                                                            BRADEN, VARNER & ALDOUS, P.C.
                                                            703 McKinney Avenue, Suite 400
                                                            Dallas, Texas 75202
                                                            (214) 740-0212
                                                            (214) 740-0217 fax

                                                            Attorney for Defendants/Counter Plaintiffs




                                        CERTIFICATE OF Sl\.RVICE

                The undersigned certifies that a true and correct copy of the foregoing instrument was
         served upon the following attorneys of record in accordance with Rule 2la of the Texas Rules of
        Civil Procedure on the 261h day ofNovember, 2013.


                Kenneth B. Chaiken                                 Evan Lane (Van) Shaw
                Chaiken & CHaiken, P.C.                            Law Offices of Van Shaw
                Legacy Town Center III                             2723 Fairmont Street
                5801 Tennyson Pkwy., Suite 440                     Dallas, Texas 75201
                Plano, Texas 75024




         DEFENDANTS/COUNTERCPL/l.INTIFFS' KEN GROSS AND BETSY GROSS' WITNESS LIST                  Page 4




90/90   39\ld                snoa111 d3Nd\IA N::JG\lda                                    69'91   £106/96/11
TAB 15
                                                                                                           FILED
                                                                                           12/6/2013 11:41:32 AM
                                                                                                JOHN F. WARREN
                                                                                                 COUNTY CLERK
                                                                                               DALLAS COUNTY




                                         CAUSE NO. CC-09-05232-A

VSDH VAQUERO VENTURE, LTD.                        §        IN THE COUNTY COURT
                                                  §
        Plaintiff                                 §
                                                  §
v.                                                §
                                                  §
KEN GROSS and BETSY GROSS                         §        ATLAWNUMBER 1
                                                  §
        Defendants                                §
                                                  §
v.                                                §
                                                  §
EVAN L. SHAW and DOUGLAS M.                       §
HICKOK                                            §
                                                  §
        Intervenors                               §        DALLAS COUNTY, TEXAS

                           PLAINTIFF'S MOTION FOR CONTINUANCE

                                     CERTIFICATE OF CONFERENCE

       Counsel for movant and counsel for respondent have personally conducted a conference
at which there was a substantive discussion of the items presented to the Court in this Motion
and counsel for respondent advises he does not oppose this Motion. ~/,.

         CERTIFIED to the        L_ day of December, 2013 by_ _ _+->/'~----
                                  ~                                    ~ShaW
TO THE HONORABLE ruDGE OF SAID COURT:

       Comes now Plaintiff, VSDH VAQUERO VENTURE, LTD, and files this its Motion for
Continuance and in support thereof would respectfully show the Court as follows:

                                                      I.
         This matter is currently set for trial on December 9, 2013.

       On or about November 26, 2013, Plaintiff received Defendants/Counter-Plaintiffe Ken
Gross and Betsy Gross' Witness List, a true and correct copy of which is attached hereto as
Exhibit A. The same identifies VAN SHAW as a "person who may be called as an adverse
witness."

       On December 2, 2013, Mr. Shaw wrote attorney Steve Aldous requesting that Mr. Aldous
inform Mr. Shaw whether or not Mr. Aldous would be calling Mr. Shaw, and informing Mr.


Plaintiffs Motion for Continuance - Page 1 of 5
MORP Pltf Mot4 Cont
Aldous that if Mr. Shaw is called to testify, then Mr. Shaw will have to find different counsel. A
true and correct copy of said letter is attached hereto as Exhibit B.

        Having not heard from Mr. Aldous as to whether or not Mr. Aldous would be calling Mr.
Shaw to testify at trial, on December 5, 2013, Mr. Shaw wrote Mr. Aldous again asking if Mr.
Aldous would be calling Mr. Shaw as a witness, and advising Mr. Aldous that if Mr. Shaw is
called as a witness, then Mr. Shaw would need to find different counsel. A true and correct copy
of said letter is attached hereto as Exhibit C.

       Further, on December 5, 2013, Mr. Shaw had a conversation with Defendants' counsel,
Mr. Aldous, during which Mr. Aldous represented to Mr. Shaw that Mr. Aldous could not
confirm whether or not Defendants would be calling Mr. Shaw as a fact witness.

                                                   II.

       Mr. Shaw will be prohibited from serving as trial counsel for Plaintiff if Defendants call
Mr. Shaw as a fact witness at trial pursuant to Rule 3 .08 of the Texas Disciplinary Rules of
Professional Conduct, which states as follows:

             (a) A lawyer shall not accept or continue employment as an advocate
             before a tribunal in a contemplated or pending adjudicatory proceeding
             if the lawyer knows or believes that the lawyer is or may be a witness
             necessary to establish an essential fact on behalf of the lawyer's client,
             unless:

                  (1) the testimony relates to an uncontested issue;

                  (2) the testimony will relate solely to a matter of fommlity and
              there is no reason to believe that substantial evidence will be offered in
              opposition to the testimony;

                  (3) the testimony relates to the nature and value of legal services
              rendered in the case;

                  (4) the lawyer is a party to the action and is appearing pro se; or

                 (5) the lawyer has promptly notified opposing cotmsel that the
              lawyer expects to testify in the matter and disqualification of the
              lawyer would work substantial hardship on the client.

              (b) A lawyer shall not continue as an advocate in a pending
              adjudicatory proceeding if the lawyer believes that the lawyer will be
              compelled to furnish testimony that will be substantially adverse to the
              lawyer's client, unless the client consents after full disclosure.




Plaintiff's Motion for Continuance - Page 2 of 5
MORP Pltf Mot4 Cont
             (c) Without the client's informed consent, a lawyer may not act as
             advocate in an adjudicatory proceeding in which another lawyer in the
             lawyer's firm is prohibited by paragraphs (a) or (b) from serving as
             advocate. If the lawyer to be called as a witness could not also serve as
             an advocate under this Rule, that lawyer shall not take an active role
             before the tribunal in the presentation of the matter.

                                                   IV.
        Because Defendants are unable to definitively advise as to whether Defendants intend to call
Mr. Shaw as a fact witness at trial, and because Plaintiff will be forced to seek other counsel
pursuant to Rule 3.08 if Mr. Shaw is called as a fact witness, Plaintiff requests a continuance of trial
in this matter until such time as it can be determined whether or not Defendants will be calling Mr.
Shaw as a fact witness.

        Additionally, in the event that Defendants decide they will be calling Mr. Shaw as a fact
witness, Plaintiff will require a reasonable amount of time to locate and engage new counsel, and
said counsel will require a reasonable amount of time to familiarize himself with the case and
prepare for trial.

        Requiring Plaintiff to go to trial on December 9, 2013, would be extremely prejudicial to
Plaintiff as it would effectively allow Defendant to call Mr. Shaw as a witness and have Mr. Shaw
disqualified as Plaintiff's counsel in the middle of trial. This would not only operate as a deprivation
to the Plaintiff of Plaintiff's right to its attorney of choice, it would also leave Plaintiff
unrepresented in the middle of trial.

                                                   v.
         This continuance is not sought for delay only, but so that justice may be done.

        WHEREFORE PREMISES CONSIDERED, Plaintiff respectfully requests that trial in this
matter be continued until such time as Defendants advise as to whether or not Defendants are going
to call Van Shaw as a fact witness, and, if Defendants do intend to call Mr. Shaw as a fact witness,
until such time as Plaintiff is able to locate and engage new counsel, and said counsel is able to
familiarize himself with the case and prepare for trial, and for such other and further relief, at law or
in equity, to which Plaintiff may be justly entitled.




Plaintiff's Motion for Continuance - Page 3 of 5
MORP PltfMot4 Cont
                                                Respectfully   f   b · ed,

                                                EVANL E AN)SHAW
                                                BarCardNo.18140500
                                                COLLEN R. MEYER
                                                Bar Card No. 24074709
                                                LAW OFFICES OF VAN SHAW
                                                2723 Fairmount
                                                Dallas, Texas 75201
                                                Telephone:     (214) 754-7110
                                                Facsimile:     (214) 754-7115
                                                ATTORNEYS FOR PLAINTIFF



                                      CERTIFICATE OF SERVICE

        The undersigned certifies that a copy of the foregoing instrument was served upon the

,. lhi,     •:   """.rn-"".           2013.                    I
attorneys °/:cord of all parties to the above cause in accordance with··· the Rules of Civil Procedure,




                                                VANSHAJ;




Plaintiffs Motion for Continuance- Page 4 ofS
MORP PltfMot4 Cont
                                                            VERIFICATION

STATEOF1EXAS                                     §
                                                 §                                                      //
COUNTY OF DALLAS                                 §                                                 //

        EVAN LANE SHAW, being duly sworn, states that he is the                       atto~~f
                                                                               record for Plaintiff
in the above entitled case and that he has read the foregoing Motion fo ~~ti~uance and that each
statement of fact contained therein is true and correct to the best 1hi owledge.



                                                               EVAN LANE (VAN) SHAW


              SUBSCRIBED AND SWORN TO BEFORE ME, on this the                            l..Jfh.   day of December,
2013.

                                                     ,
                                                 . .•. ..
    ·~·""1i;r:.,
   l~ '-?$~            LETICIA BEAIBIZ BOTELLO    J
   %;~..... ~~         MY COMMISSION EXPIRES
                          September 20, 2014                   Notary Public in and for th
    '•r,,,?,~,i.':''
                                                 .             State of Texas

My Commission Expires:                    S<p flo, !3fi'1




Plaintiff's Motion for Continuance - Page 5 of 5
MORP PltfMot4 Cont
                                                                               Scanned & Saved by:   d-.
                                                                               ~c•n Checked by:J__.
                                          CAUSE NO. CC·09-0S232-A

        VSDH VAQUERO VENTURE, LTD.,                    §                      IN THE COUNTY COURT
             Plaintiffs/Counter-Defendant,             §
                                                       §
        v.                                             §
                                                       §
        KEN GROSS and BETSY GROSS                      §
            Defendants/Counter-Plaintiffs,             §                             AT LAW NUMBER!
                                                       §
        v.                                             §
                                                       §
        EVAN L. SHAW ~nd DOOGLAS M.                    §
        lDCKOK                                         §
             Intervenors/Counter-Defendants.           §                     DALLAS COUNTY, TEXAS
                                                       §
                                     DEFENDANTS/COUN'fER-PLAINTIFFS
                                 KEN GROSS AND BETSY GROSS' WITNESS LIST

        TO THE HONORABLE JUDGE OF SAID COURl':

                COMES NOW, Kenneth P. Gross and Betsy L. Gross (hereinafter referred to as "the

        Grosses"), Defendants/Counter-Plaintifts in the above-entitled and numbered cause, and files this

        their Witness List and designate the following witnesses who may be called to testify at the time

        of trial. The below list represents the Grosses good faith effort to set out a witness list in

        advance of trial. Pre-trial preparations and/or trial may necessitat7 the calling of additional

        witnesses not set out on the below list. To that end, the Grosses res.erve the right to call and/or

         examine any individual identified as a witness on any party's witness list or a person with

         knowledge of relevant facts in any answer to Request for Disclosure or Interrogatories in this

         case. The Grosses resewe the right to designate further witnesses based upon the designations of

         the Plaintiffs/Counter"Defendants and lntervenors/Counter-Defendants.            The Grosses also

         reserve the right to supplement this list in order to rebut testimony elicited by Plaintiffs/Counter-

         Defendants and Intervenors/Comiter-Defendants during trial.


         DEFENDANTS/COUNTER-PLAINTIFFS' KEN GROSS AND BETSY GROSS' WI




S0/G0   39\ld                                                                 l IW0PLP11:
                Plaintiffs also reserve the right to call as a witness at trial the expert witnesses whom

        Defendants and/or Third-Party Defendants have designated as experts in this case.

                                                        I.
                                        PLAINTIFFS' WITNESS LIST

                Kenneth P. Gross
                c/o his attorneys of record:
                Steven E. Aldous
                Braden, Varner & Aldous, P.C.
                703 McKinney Avenue, Suite 400
                Dallas, Texas 75202
                (214) 740-0212
                (214) 740-0217 fax
                Defeodant/Counter-Plaiotift"

                Betsy L. Gross
                c/o her attorneys of record:
                Steven E. Aldous
                Braden, Varner & Aldous, P.C.
                703 McKinney Avenue, Suite 400
                Dallas, Texas 75202
                (214) 740-0212
                (214) 740-0217 fax
                Defendant/Counter-Plaintiff

                Roxann Taylor
                Realty Executives - The Roxann Taylor Team
                640 North Carroll Avenue
                Southlake, Texas 7 6092
                The Grosses' real estate agent for subsequent sale of property

                 Brent Cooper
                 Jana S. Reist
                 Gordon Wright
                 Cooper & Scully, P.C.
                 900 Jackson Street, Suite 100
                 Dallas, Texas 75202
                 (214) 712-9500
                 The Grosses' counsel




         DEFENDANTS/COUNTER-PLAINTIFFS' KEN GROSS AND BETSY GROSS' WITNESS LIST                     Page 2




S0/E0   38\ld                                                                               z9:91   E106/96/11
                 Steven E. Aldous
                 Braden, Varner & Aldous, P.C.
                 703 McKinney Avenue, Suite 400
                 Dallas, Texas 75202
                 (214) 740-0212
                 (214) 740-0217 fax
                 The Grosse~' counsel

                                            II.
                     PEllSONS WHO MAY BE CALLED AS AN ADVERSE WITNESS

                 Van Shaw, individually and as a representative of
                 VSDH Vaquero Venture, Ltd.
                 2723 Fairmount Street
                 Dallas, Texas 75201

                 Doug Hickok, individually and as a representative of
                 VSDH Vaquero Venture, Ltd.
                 c/o his attorney ofrecord:
                 Kenneth B. Chaiken
                 Chaiken & Chaiken, P.C.
                 13355 Noel Road, Ste. 600
                 Dallas, Texas 7 5240

                                                            III.
                                                   OTHER WITNESSES

                 In addition, the Grosses reserve the right to supplement this list pursuant to the Texas

         Rules of Civil Procedure and incorporates by reference any and all individuals and/or entities

         listed by the other parties in their respective Responses to Requests for Disclosures. Further, the

         Grosses hereby incorporate by reference any additional persons who are identified in documents

         produced in the current lawsuit.




          DEFENDANTS/COUNTER-PLAlNTlFFS' KEN GROSS AND BETSY GROSS' WITNESS LIST                      Pago 3




90/1'0   38\ld                 snoa111   ~3N~\IA N3a\l~ff                    L 1G001'L1'1G
                                                            Respectfully submitted,




                                                             TEVEN E. ALDOUS
                                                            State Bar No. 00982100
                                                            saldous@bvalaw.com
                                                            BRADEN, VARNER & ALDOUS, P.C.
                                                            703 McKinney Avenue, Suite 400
                                                            Dallas, Texas 75202
                                                            (214) 740-0212
                                                            (214) 740-0217 fax

                                                            Attorney for Defendants/Counter Plaintiffs




                                        CERTIFICATE OF Sl\.RVICE

                The undersigned certifies that a true and correct copy of the foregoing instrument was
         served upon the following attorneys of record in accordance with Rule 2la of the Texas Rules of
        Civil Procedure on the 261h day ofNovember, 2013.


                Kenneth B. Chaiken                                 Evan Lane (Van) Shaw
                Chaiken & CHaiken, P.C.                            Law Offices of Van Shaw
                Legacy Town Center III                             2723 Fairmont Street
                5801 Tennyson Pkwy., Suite 440                     Dallas, Texas 75201
                Plano, Texas 75024




         DEFENDANTS/COUNTERCPL/l.INTIFFS' KEN GROSS AND BETSY GROSS' WITNESS LIST                  Page 4




90/90   39\ld                snoa111 d3Nd\IA N::JG\lda                                    69'91   £106/96/11
                                      LAW OFFICES
                                          OF
                                       VAN SHAW

                                      ATTORNEYS AT LAW

                                       2723 FAIRMOUNT
                VAN SHAW*            DALLAS, TEXAS 75201                            DANIEL K. HAGOOD
              JANET R. RANDLE            (214) 754-7110                               OF COUNSEL

                                     FAX NO. (214) 754-7115
             *BOARD CERTIFIED IN                                                  CERTIFIED PARALEGALS
               PERSONAL INJURY
                                    www.shawlawoffice.com                           RHONDA VINCENT
              •CERTIFIED PUBLIC                                                      LORI G. MOORE
                 ACCOUNTANT                                                         APR!L S. SUMNER



Mr. Steve Aldous                                              December 2, 2013
ATTORNEY AT LAW                                               FAX (214*740-0217)
703 McKinney Avenue, Suite 400                                =PH 214*740-0212 =
Dallas, Texas 75202

Re: VSDH V. Gross

Dear Mr. Aldous:

I received your List of Witnesses and Notice that I am listed as a possible witness by you.
If I am to be called I cannot then be counsel for VSDH and will need time to find other
counsel

Please let me)mow if you will I will not be calling me so that I can make plans
accordingly:

Thi(     /




Van Shaw
VS/rv

Cc: Ken Chaiken             email




                                                                                     E)(H\B\T

                                                                               \8
                                TRANSMISSION VERIFICATION REPORT

                                                                           TIME      12/02/2013 07:27
                                                                           NAME      LAW OFFICE OF        \I   SHAW
                                                                           FAX       2147547115
                                                                           TEL       2147547110
                                                                           SER.#     BROAOJ127259



DATE, TIME                                                12/02 07:27
FAX ~~O. /NAME                                            2147400217
DURATION                                                  00:00:15
PAGE(S)                                                   01
RESULT                                                    OK
MODE                                                      STANDARD
                                                          ECM




                                                LAW OFFICES
                                                    OF
                                                 VAN SHAW

                                                ATTORNEYS AT LAW

                                                 2723 FAIRMOUNT
                     VAN SHAW'"
                  JANF.T R. RANDL.F.:
                                               DALLAS, TEXAS 75201
                                                   (214) 754-7110                                OANJEL. K. HAGOOD
                                                                                                   OF COUNSEL
             ~ F.IOARD OERTIFIED        !N     FAX NO. (214) 754-7115
                 PERSONAL INJURY
                 ~ CERTIFIEO PUBLIC
                                             www.shawlawoffice.com                           C~~TIFIEO PA~ALEGALS
                                                                                                Fl.HONDA VINCENT
                   ACCOUNTANT                                                                     LORI G. MOORE
                                                                                                 AP~IL $, SUMNER

 Mr. Steve Aldous
 ATTORNEY AT LAW                                                        December 2, 2013
 703 McKinney Avenue, Suite 400                                         FAX (214*740-0217)
 Dallas, Texas 75202                                                    = f:'H 214"'740-0212 =

 Re: VSDH V. Gross

Dear Mr. Aldous:

I received your List of Witnesses and Notice that I am listed as a possible witness by you.
IfI am to be cal.led I cannot tben be counsel for VSDH and will need time to find other
counsel
                     ,/

Please let me ](~ow if you will I will not be c;alling me so that I can make plans
according!




Van Shaw
                                                                          Scanned & Saved by:   ~
                                        LAW OFFICES
                                                                          Scan Checked   by:~
                                            OF
                                         VAN SHAW

                                        ATTORNEYS AT LAW

                                         2723 FAIRMOUNT
                   VAN SHAW"           DALLAS, TEXAS 75201                           DANIEL K. HAGOOD
                 JANET R. RANDLE           (214) 754-7110                              OF COUNSEL
                                       FAX NO. (214) 754-7115
             *BOARD CERTIFIED IN                                                   CERTIFIED PARALEGALS
               PERSONAL INJURY
                                      www.shawlawoffice.com                          RHONDA VINCENT
              *CERTIFIED PUBLIC                                                        LORI G. MOORE
                 ACCOUNTANT                                                           APRILS. SUMNER



Mr. Steve Aldous                                                 December 5, 2013
ATTORNEY AT LAW                                                 FAX (214*740-0217)
703 McKinney Avenue, Suite 400                                  =PH 214*740-0212 =
Dallas, Texas 75202                                             saldous@bvalaw.com


Re: VSDH v. Gross

Dear Mr. Aldous:

I called you to discuss a moment ago and left a message as you were unavailable. I have
not heard from you in reply to my fax as to whether of not you will/ will not be calling
me as a witness at trial. I need to know asap as if you will call me, I cannot be counsel if
I am to be a witness.

Please advise asap.
             /
Thanks, j

        rl
vansk:i~
VS/rv

Cc: Ken Chaiken               email




                                                                            EXHIBIT

                                                                      I      C..
                                                                              '.1caon.td & Saved   by:~
                                    TRANSMISSION VERIFICATION REPORT          Scan Checked by:              &lf7
                                                                             TIME       12/05/2013 11:11
                                                                             NAME       LAW OFFICE OF V SHAW
                                                                             FAX        2147547115
                                                                             TEL        2147547110
                                                                             SER.#      BROA0J127259


 DATE, TIME                                                  12/05 11:11
 FAX NO. /NAME                                               2147400217
 DURATION                                                    00:00:15
 PAGE(S)                                                     01
 RESULT                                                      OK
 MODE                                                        STANDARD
                                                             ECM




                                              LAW OFFICES
                                                      OF
                                                VAN SHAW
                                              ATTORNEYS AT LAW

                                                2723 FAIRMOUNT
                                                                                                   DANIEL K. HAGOOD
               VAN   SHAW~                    DALLAS, TEXAS 752Q1
                                                                                                     Of COUNSEL
            JANET R. RANDLE:                      (214) 754"7110
                                              FAX NO. (214) 754·7115                          Ce.f!l.TIP"IEO PARALEGALS
           ~BOARD CERTIFI~      1111
            Pe.~SONAI.   1NJt,JRY
                                            www.shawlawoffice.com                                  ~HONDA. VINCENT
                                                                                                    LORI G. MOO~e
            • CERTtFIED PUBLIC                                                                     APRIL S. SUMNE;R,
              ACCOUNTANT



Mr. Steve Aldous                                                         December 5, 2013
ATTORNEY AT LAW                                                         FAX (214*740-0217)
703 McKinney Avenue, Suite 400                                          =PH 214*740-0212 ~
Dallas, Texas 75202                                                     saldous@bvalaw.com

Re: VSDH v. Gross

Dear Mr. Aldous:

I called you to discuss a moment ago and left a message as you were unavailable. I have
not heard from you in reply to my fax as to whether of not you will I will not be calling
me as a witness at_trial. I need to know asap as if you will call me, I cannot be counsel if
I am to be a wi!J;less.
                ,.
                ;

Please advisei~ap.

~.;
     _r
TAB 16
                                                                                                              FILED
                                                                                              1/24/2014 12:49:00 PM
                                                                                                   JOHN F. WARREN
                                                                                                    COUNTY CLERK
                                                                                                  DALLAS COUNTY



                                   CAUSE NO. CC-09-0S232-A

VSDH VAQUERO VENTURE, LTD.                   §        IN THE COUNTY COURT
                                             §
       Plaintiff                             §
                                             §
v.                                           §
                                             §
KEN GROSS and BETSY GROSS                    §        AT LAW NUMBER 1
                                             §
       Defendants                            §
                                             §
v.                                           §
                                             §
EVAN L. SHAW and DOUGLAS M.                  §
HICKOK                                       §
                                             §
       Intervenors                           §        DALLAS COUNTY, TEXAS

PLAINTIFF/COUNTER-DEFENDANT VSDH VAOUERO VENTURE, LTD.'S FOURTH
SUPPLEMENTAL ANSWER AS AN ADDITION TO COUNTER-DEFENDANTS' FIRST,
SECOND AND THIRD SUPPLEMENTAL ANSWERS AND COUNTER-DEFENDANTS'
    FIRST AMENDED ANSWER TO DEFENDANTS/COUNTER-PLAINTIFFS'
                        COUNTERCLAIM

TO THE HONORABLE JUDGE OF SAID COURT:

        Come now Plaintiff/Counter-Defendant VSDH V AQUERO VENTURE, LTD. hereinafter
referred to as "Counter-Defendant" or "VSDH" and files this its Fourth Supplemental Answer as an
Addition to Counter-Defendants' First, Second and Third Supplemental Answers and Counter-
Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim, and would
respectfully show unto the Court the following:

                                                 I.
        The pleadings and assertions set forth herein supplement and are in addition to Counter-
Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim and Counter-
Defendants' First, Second and Third Supplemental Answers in Addition to Counter-Defendants'
First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim. None of the contentions,
assertions nor defenses set forth in Counter-Defendants' First Amended Answer to
Defendants/Counter-Plaintiffs' Counterclaim and/or Counter-Defendants' First, Second and Third
Supplemental Answers in Addition to Counter-Defendants' First Amended Answer to
Defendants/Counter-Plaintiffs' Counterclaim are withdrawn. This is to be read in addition to and in
conjunction with Counter-Defendants' First Amended Answer to Defendants/Counter-Plaintiffs'

FOURm SUPPLEMENTAL ANSWER TO COUNTERCLAIM - Page 1
PLED Pltf Ans Def CClairn Supp4




                                                                                                1
Counterclaim and Counter-Defendants' First, Second and Third Supplemental Answers in Addition
to Counter-Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim.

                                                      II.

        Plaintiff/Counter-Defendant VSDH VAQUERO VENTURE, LTD. asserts (and it
continues to assert by amendment or supplement if necessary) the following affirmative defenses
and/or specific denials to the Grosses' counterclaims:

       a.      The Grosses breached the subject contract and released Plaintiff/Counter-
Defendant from responsibility (if any under the contract, which is denied) thereunder pursuant to
the doctrine of first material breach;

        b.        The Grosses' counterclaims and third-party claims are barred by the economic loss
doctrine;

       c.      Plaintiff/Counter-Defendant VSDH VAQUERO VENTURE, LTD. denies the
Grosses' alleged compliance with conditions precedent and pleads failure of conditions
precedent, including:

                  1.        failure of the Grosses to obtain written and required approval for the
                            improvements of the property; and,

                  ii.       failure to establish exceptions to the statute of frauds.

        d.        The Grosses' claims are barred by estoppel and waiver;

        e.       The Grosses' claims are barred by failure to state a viable claim for declaratory
relief or other relief;

        f.        The Grosses' claims are barred by the claims bar under the statute of frauds;

        g.        The Grosses' claims are barred by their failure to mitigate;

         h.       The Grosses' claims are barred by lack of privity;

         i.       The Grosses' claims are barred by lack of presentment or demand;

       j.      The Grosses' counterclaims for damages for breach of the alleged guaranty made
the basis of this lawsuit against Plaintiff/Counter-Defendant are barred by the doctrine of
impossibility of performance;




FOURm SUPPLEMENTAL ANSWER TO COUNTERCLAIM - Page 2
PLED Pltf Ans DerCClaim Supp4



                                                                                                     2
       k.    The Grosses' counterclaims for damages due to an alleged breach of the buy-back
provision made the basis of this lawsuit are barred by the doctrine of illusory contracts or
promises;

      1.      The Grosses' counterclaims for damages. for alleged breach of the alleged guaranty
made the basis of this lawsuit against Plaintiff/Counter-Defendant are barred by a failure of or
incomplete execution of the alleged guaranty agreement by at least one of the alleged guarantors;

        m.      The Grosses' counterclaims for damages for alleged breach of the alleged guaranty
or the buy-back obligation made the basis of this lawsuit are both barred by lack of consideration
and/or a failure of consideration; and

        n.     To the extent the alleged guaranty obligation is found to be enforceable against
Plaintiff/Counter-Defendant (which Plaintiff/Counter-Defendant VSDH VAQUERO VENTURE,
LTD. continues to deny), any recovery from Plaintiff/Counter-Defendant is limited to
Plaintiff/Counter-Defendant's limited partner's contribution at the time the alleged guaranty was
made.

                                               ITI.

     Pleading further to the extent necessary, Plaintiff/Counter-Defendant VSDH VAQUERO
VENTURE, LTD. asserts the following additional defenses by supplementation:

       a.      The Grosses' claims against Plaintiff/Counter-Defendant for damages are barred
by their agreement to seek exclusive remedies, not including damages, from Plaintiff/Counter-
Defendant in the event of a breach of the alleged buy-back provision in the subject contract;

       b.      The Grosses' claims against Plaintiff/Counter-Defendant are barred under the
doctrine of election of remedies; and,

       c.      If any person/entity guaranteed anything in the subject contract, at most said
person/entity guaranteed a buy-back obligation, and not any obligation by the Seller to pay
damages.

                                               IV.

                                 ALTERNATIVE PLEADING

        All defenses herein, if inconsistent, are made pursuant to Rule 48 of the Texas Rules of
Civil Procedure.




FOURm SUPPLEMENTAL ANSWER TO COUNTERCLAIM - Page 3
PLED Pltf Ans DefCClaim Supp4




                                                                                               3
 ,   ..




                                                 v.
                                      NOTICE OF INTENT

       Plaintiff/Counter-Defendant hereby gives notice of intent to utilize items produced in
discovery in the trial of this matter and the authenticity of such items is self-proven per the Texas
Rules of Civil Procedure, 193.7.


        WHEREFORE, PREMISES CONSIDERED, Plaintiff/Counter-Defendant VSDH
VAQUERO VENTURE, LID. prays that Counter-Plaintiffs take nothing by their claims against
Plaintiff/Counter-Defendant VSDH VAQUERO VENTURE, LID., and that Plaintiff/Counter-
Defendant VSDH VAQUERO VENTURE, LID. be discharged with co of court, attorney's fees,
and such other and further relief to which Plaintiff/Counter-De ndant VSDH VAQUERO
VENTURE, LID. may be entitled, both in law and in equity.




                                                             rv
                                              EVAN LANE AN) SHAW
                                              Bar Card No. 18140500
                                              LAW OFFICES OF VAN SHAW
                                              2723 Fairmount Street
                                              Dallas, Texas 75201
                                              (214) 754-7110
                                              FAX NO. (214) 754-7115
                                              Email-van@shawlaw.net

                                              ATIORNEY FOR PLAINTIFF/COUNTER-
                                              DEFENDANT




FOURm SupPLEMENTAL ANSWER TO COUNTERCLAIM - Page 4
PLED Pltf Ans DefCClaim Supp4




                                                                                                  4
 ,   .


                                              CERTIFICATE OF SERVICE

         T           ersigned certifies that a copy of the foregoing instrument was served upon the
                        of all parties to the above cause in accordance with the Ru es ofCivil Procedure,
                      y of January, 2014.




                                                  VERIFICATION

STATE OF TEXAS                            )
                                          )
COUNTY OF DALLAS                          )

        BEFORE ME, the undersigned Notary Public, on this day personally appeared EVAN L.
SHAW, who being by me duly swom on his oath deposed and said that he is over 21 years of age,
of sound mind and capable of making this Affidavit; that he is an authorized agent of
Plaintiff/Counter-Defendant VSDH VAQUERO VENTURE, LTD. in the above-entitled and
numbered cause; that he has read the above and foregoing Fourth Supplemental Answer as an
Addition to Counter-Defendants' First, Second and Third Supplemental Ans rs and Counter-
Defendants' First Amended Answer to Defendants/Counter-Plaintiffs' Count claim; and that every
statement contained in Paragraph II(m) is within his personal knowledge a is true and correct.



                                                           EVANL. S       W

        SUBSCRIBED AND SWORN TO BEFORE ME on the                        ~~~y of January, 2014, to
certify which witness my hand and official seal. \

                                                                   Q~
                          LORI G. MOORE
                       MY COMMISS10N EXPiRES
                            May 23,2016


My commission expires ~ I l~\., ~ \..f}




FOURTH SUPPLEMENTAL ANSWER TO COUNTERCLAIM - Page 5
PLED Pltf Ans Def CClaim Supp4




                                                                                                      5
TAB 17
                                                                                                              FILED
                                                                                              2/27/2014 9:49:01 AM
                                                                                                  JOHN F. WARREN
                                                                                                   COUNTY CLERK
                                                                                                 DALLAS COUNTY




                                    CAUSE NO. CC-09-05232-A

VSDH VAQUERO VENTURE, LTD.,                   §                      IN THE COUNTY COURT
     Plaintiffs/Counter-Defendant,            §
                                              §
v.                                            §
                                              §
KEN GROSS and BETSY GROSS                     §
     Defendants/Counter-Plaintiffs,           §                           AT LAW NUMBER 1
                                              §
v.                                            §
                                              §
EV AN L. SHAW and DOUGLAS M.                  §
HICKOK                                        §
      Intervenors/Counter-Defendants.         §                    DALLAS COUNTY, TEXAS
                                              §
                             KEN GROSS AND BETSY GROSS' MOTION
                                 TO DISQUALIFY EV AN L. SHAW

TO THE HONORABLE JUDGE BENSON:

        COMES NOW, Kenneth P. Gross and Betsy L. Gross (hereinafter referred to as "the

Grosses"), and file this motion to disqualify Evan L. Shaw ("Shaw") as counsel for VSDH

Vaquero Venture, Ltd. ("VSDH") and would respectfully show the following:

                              ARGUMENT AND AUTHORITIES

        This case was previously set for trial on December 9, 2013. On December 6, 2013, Shaw

filed a motion for continuance on behalf ofVSDH on the grounds that Shaw could be called as a

witness in the trial and, as such, Shaw would be prohibited by the Disciplinary Rules of

Professional Conduct from acting as trial counsel for VSDH.        (A copy of the motion for

continuance is attached as Exhibit 1). During the various hearings held by the Court prior to

passing the setting, counsel for Douglas M. Hickok indicated that Shaw would likely be called as

a witness in the case.



Ken Gross and Betsy Gross' Motion
to Disqualify Evan L. Shaw:                                                           Page 1 of3
        As of today's date, Shaw has not withdrawn from representing VSDH. This matter is

currently specially set for trial on July 7, 2014. Nothing has changed in terms of the likelihood

that Shaw will be called as a witness in the trial of this case. The trial court has the power and

the duty to disqualify counsel when representation of the client is prohibited by the Texas

Disciplinary Rules of Professional Conduct. See Ayres v. Canales, 790 S.W.2d 554, 557 n.2

(Tex. 1990).    Tex. Disciplinary R. Prof. Conduct 3.08 was amended in 1994 to prohibit

"employment as an advocate before a tribunal in a contemplated or pending adjudicatory

proceeding." Tex. Disciplinary R. Prof. Conduct 3.08(a). As a result, Shaw is not permitted to

act as an advocate before this Court during the pendency of this case.

       WHEREFORE, PREMISES CONSIDERED, the Grosses respectfully request that their

motion to disqualify Evan L. Shaw be GRANTED, and that they have and recover all other relief

to which they are entitled in law or equity.



                                                     Respectfully submitted,



                                                     Isl Steven E. Aldous
                                                     Steven E. Aldous
                                                     State Bar No. 00982100
                                                     saldous@forsheyprostok.com
                                                     FORSHEY & PROSTOK LLP
                                                     500 Crescent Court
                                                     Suite 240
                                                     Dallas, Texas 75201
                                                     Telephone: (214) 716-2101
                                                     Facsimile: (214) 740-2115

                                                     Attorney for Defendants/Counter Plaintiffs



Ken Gross and Betsy Gross' Motion
to Disqualify Evan L. Shaw:                                                             Page 2 of3
                                    CERTIFICATE OF SERVICE

        The undersigned certifies that a true and correct copy of the foregoing instrument was
served upon the following attorneys of record in accordance with Rule 21a of the Texas Rules of
Civil Procedure or through the electronic filing system on the 2ih day of February, 2014.

       Kenneth B. Chaiken                                 Evan Lane (Van) Shaw
       Chaiken & Chaiken, P.C.                            Law Offices of Van Shaw
       Legacy Town Center III                             2723 Fairmont Street
       5801 Tennyson Pkwy., Suite 440                     Dallas, Texas 75201
       Plano, Texas 75024


                                                  Isl Steven E. Aldous
                                                  STEVEN E. ALDOUS




Ken Gross and Betsy Gross' Motion
to Disqualify Evan L. Shaw:                                                          Page 3 of3
12/05/2013    12:05        2147547115                        LAt.<J OFFICE OF V .SHAW               PAGE   03/15




                                             CAUSE NO. CC-09-05232-A

    VSDH VAQUERO VENTURE, LTD.                       §       IN THE COUNTY COURT
                                                     §
             Plaintiff                               §
                                                     §
    v.                                               §
                                                     §
    KEN GROSS and BETSY GROSS                        §       AT LAW NUMBER 1
                                                     §
             Defendants                              §
                                                     §
    v.                                               §
                                                     §
    EV AN L. SHAW and DOUGLAS M.                     §
    HICKOK                                           §
                                                     §
             Intervcnors                             §       DALLAS COUNTY, TEXAS

                               PLAINTIFF'S MOTION FOR CONTINUANCE

                                         CERTI.FICATE OF CONFERENCE

           Counsel for movant and counsel for respondent have personally conducted a confere
    at which there was a substantive discussion of the items presented to the Court ipthis Motion
    and counsel for respondent advises he doe"" oppooe this Motion.         ~

             CERTIFIED to the        L       day of December, 2013 by___   J_L_.__
                                                                               ____
                                     Y                                     V/.;l_ Shaw
    TO THE HONORABLE JUDGE OF SAID COURT:
           Comes now Plaintiff, VSDH VAQUERO VENTURE, LTD, and files this its Motion for
    Continuance and in support thereof would :respectfully show the Court as follows:



             This matter is currently set for trial on December 9, 2013.

           On or about November 26, 2013, Plaintiff received Defendants/Counter-Plaintiffs Ken
    Gross and Betsy Gross' Witness List, a true and correct copy of which is attached her.eto as
    Exhibit A. The same identifies VAN SHAW as a "person who may be called as an adverse
    witness.'~


           On December 2, 2013, Mr. Shaw VvTOte attorney Steve Aldous requesting that Mr. Aldous
    infonn Mr. Shaw whether or not Mr. Aldous would be calling Mr. Shaw, and informing Mr.


    Plaintiffs Motion for Continuance· Pa~e 1 llf5
    MORP Pltf Mot4 Conl                               EXHIBIT

                                                         I
12/06/2013    12:05         2147547115                          LAW OFFICE OF V .SHAW               PAGE     04/16




      Aldous that if Mr. Shaw is called to testify, then Mr. Shaw will have to find different counsel. A
      true and correct copy of said letter is attached hereto as Exhibit B.

              Having not heard from Mr. Aldous as to whether or not Mr. Aldous would be calling Mr.
      Shaw to testify at trial, on December 5, 2013, Mr. Shaw wrote Mr. Aldous again asking if Mr.
      Aldous would be calling Mr. Shaw as a witness, and advising Mr. Aldous that if Mt. Shaw is
      called as a witness, then Mr. Shaw would need to find different counsel. A true and correct copy
      of said letter is attached hereto as Exhibit C.

             Further, on December 5, 2013, Mr:. Shaw had a conversation with Defendants' counsel,
      Mr. Aldous, during which Mt. Aldous represented to Mr. Shaw that Mr. Aldous could not
      confinn whether or not Defendants would be calling Mr. Shaw as a fact witness.

                                                           H.
               Mr. Shaw \Vilt be prohibited from serving as trial counsel for Plaintiff if Defendants call
      Mr. Shaw as a fact witness at trial pursuant to Rule 3.08 of the Texas Disciplinary Rules of
      Professional Conduct, which states as follows:

                    (a) A lawyer shall not accept or continue employment as an advocate
                    before a tiibunal in a contemplated or pending adjudicatory proceeding
                    if the lav.'Ycr knows or believes that the lawyer is or may be a witness
                    necessary to establish an essential fact 011 behalf of the lav,.ryer's client
                    unless:

                         (1) the testimony relates to an uncontested issue;

                        (2) the testimony will relate solely to a matter <)f formality and
                    there is no reason to believe that substantial evidence will be offored in
                    opposition to the testimony;

                        (3) the testimony relates to the nature and value of legal services
                    rendered in the case;

                        (4) the lawyer is a party to the action and is appearing prose; or

                        (S) the lawyer has promptly notified opposing counsel that the
                    law-yer expects to testify in the matter and disqualification of the
                    lawyer would work substantial hardship on the client.

                   (h) A lawyer shall not continue as an advocate in a pending
                   adjudicatory proceeding if the lav,;yer believes that the lawyer will be
                   compelled to furnish testimony that will be substantially adverse to the
                   lawyer's client, unless the client consents after full disclosure.




      £.!ajntiff's Motion fot Continuance· Pag~ 2 Qf5
      MORP PltfMot4 Cont
12/05/2013     12:05          2147547115                           LAW OFFICE OF V SHAW                  PAGE     05/15




                     (c) Withoi.1t the client's informed consent, a lawyer may not act as
                     advocate in an adjudicatory proceeding in which another lawyer in the
                     lawyer's finn is prohibited by paragraphs (a) or (b) from serving as
                     advocate. If the krwyer to be called as a witness could not also serve as
                     an advocate under this Rule, that lawyer shall not take an active role
                     before the tribunal in the presentation of the matter.

                                                              IV.

            Because Defendants are unable to definitively advise as to whether Defendants intend to call
      Mr. Shaw as a fact \Vitness at trial~ and because Plaintiff will be forced to seek other counsel
      pursuant to Rule 3.08 if Mr. Shaw is called as a fact \Vltness, Plaintiff requests a continuance of trial
      in this matter until such time as it can be determined whether or not Defendants will be calling Mr.
      Shaw as a fact ·witness.
             Additionally, in the event that Defendants decide they will be calling Mr. Shaw as a fact
      witness, Plaintiff will require a reasonable amount of time to locate and engage new counsel, and
      said counsel will require a reasonable amount of time to familiarize himself \;\/jth the case and
      prepare for trial.
              Requiring Plaintiff to go to t-rial on December 9, 2013, would be extremely prejudicial to
      Plaintiff as it would effectively allow Defendant to call Mr. Shaw as a Vvitn.ess and have Mr. Shaw
      disqualified as Plaintiff's counsel in the middle of trial. This would not only operate as a deprivation
      to the Plaintiff of Plaintiffs right to its attorney of choice, it would also leave Plaintiff
      unrepresented in the middle of trial.
                                                              v.
                TI1is continuance is not sought for delay only, but so that justice may be done.
              WHEREFORE PREMISES CONSIDERED, Plaintiff respectfully requests that trial in this
      matter be continued until such time as Defendants advise as to whether or not Defendants are going
      to call Van Shaw as a fact witness, and? if Defendants do intend to call Mr. Shaw as a fact witness,
      until such time as Plaintiff is able to locate and engage new counsel, and said counsel is able to
      familiarize himself with the case and prepare for trial: and for such other and further relief, at law or
      in equity, to which Plaintiff may be justly enJitled.




      ~lllintiff's Motion for Conti!1ull!l.ce - Page 3 of 5
      MORP PltfMot4 Cont
                           2147547115                         LAW OFFICE OF V.SHAW                PAGE     05/15
12/05/2013    12:05




                                                         Respectfully sf,b · ed,

                                                         EVAN L      tA. AN) SHAW
                                                         Bar Card No. 18140500
                                                         COLLEN R. MEYER
                                                         Bar Card No. 24074709
                                                         LAW OFFICES OF VAN SHAW
                                                         2723 Fairmount
                                                         Dallas~Texas 75201
                                                         Telephone:    (214) 754-7110
                                                         Facsimile: (214) 754-7115
                                                         ATTORNEYS FOR PLAINTIFF


                                               CERTIFICATE OF SERVICE

              The undersigned certifies that a copy of the foregoing instrument was served upon the
      attorneys Gord of all parties to the above cause in accordance witl1 the Rules of Civil Procedure,
      on this   , : day of December, 2013.                      //



                                                         VAN SHA   vb




      Plnintifrs Mgtion for Continua.nee - Pnge 4 of 5
      MORP Pltf Mot4 Cont
12/05/2013     12:05            2147547.115                         LAW OFFICE OF     V.~HAW                 PAGE   07/15




                                                            VERIFICATION

      STATE OF TEXAS                                 §
                                                     §
      COUNTY OF DALLAS                               §

              EVAN LANE SHAW, being duly sworn, states that he is the atto y of record for Plaintiff
      in the above entitled case and that he has read the forei;wing Motion fo · ontinuance and that each
      statement of fact contained therein is true and correct to~the bestiif hi owledge.



                                                               EVAN LANE (VAN) SHAW


                   SUBSCRIBED AND SWORN TO BEFORE ME, on this the                       {J0    day of December,
      2013.

                     ~~~!!!!!!!!!!!'!!!!'!!!!!!!!!!!!!~··


                        LETICIA BEAn:tlZ BOTELLO
                         MY COMMISSION EXPIR!;S
                            ~r:!0,2014
                                                      J        Notary Public in and for th
                                                               State of Texas

      My Commission Expires:                  Sip.BuJJ.A'1




      Plaintlfr~   Mtition for Continunnce • Pa!le 5 of S
      MORP PltfMot4 Cont                               -
12/05/2013    12:05     2147547115                             LAW OFFICE OF V SHAW                       PAGE     08/15




                                            CAUSE NO. CC~Q9w05232-A

        VSDH VAQUERO VENTURE, LTD.,                        §                    IN THE COUNTY COURT
             Plaintiffs/Counter-Defendant,                 §
                                                           §
        v.                                                 §
                                                           §
        KEN GROSS ·and BETSY GROSS                         §
                Defendants/Counter-Plaintiffs,             §                           AT LAW NUl\tlBER 1
                                                           §
         v.                                                §
                                                           §
         EVAN L. SHAW ~nd DOUGLAS M.                       §
         HICKOK                                            §
                Inite:rvenors/Counter-Defendants.          §                   DALLAS COUNTY, TEXAS
                                                           §
                                          DEFENDANTSICOUN~t'.ER-PLAiNTIFFS
                                  KEN GROSS AND BETSY GROSS' WITNESS LIST

         TO THE HONORABLE JUDGE OF SAID COURT:

                 COMES NOW, Kenneth P. Gross and Betsy L. Gross (hereinafter referred to a.s ''the

         Grosses"), Defendants/Counter-Plairitiffs in the above-entitled and numbered cause, and files this

         their Witness List and designate the following witnesses who may be called to testify at the time

         of trial. The below list represents the Grosses good faith effort to set out a witness list in

         advance of trial. Pre4rial preparations and/or trial may necessita:te the calling of additional

         witnesses not set out on the below list.   ·ro that end, the Grosses res.e.rve the right to call and/or
         examine any individual identified as a i,.vitness on any party's wimess list or a person with

         knowledge of relevant facts in any answer to Reque$t for Disclosure or Interrogatories in this

         case. The Grosses reserve the right to designate further witnesses based upon the designations of

         the Plaintiffs/Counter-Defendants and Intervenors/Counter·Defendants.             The Grosses also

         reserve the right to supplement this list in order to rebut testimony elicited by Plaintiffs/Counter-

         Defendants and lntervenors/Cow1ter-Defendants during triaL




                               snoal'i1   ~3N~~A NJcr~~g
12/05/2013   12:05     2147547115                           LAW OFFICE OF V SHAW                        PAGE   09/15




              Plaintiffs also reserve the right to call as a witness at trial the expert witnesses whom

       Defendants and/or Third-Party Defendants have Q.esignated as experts in this. ease.

                                                       r.
                                       ~LAINTIFFS'     Wl"(MESS 4IST

              Ke11Ileth P. Gross
              c/o his attorneys of record:
              Steven E. Aldous
              Braden, Vamer & Aldous, P.C.
              703 McKinney Avenue, Suite 400
              Dallas, Texas 75202
              (214) 740-0212
              (214) 740-0217 fax
              Defendant/Counter-Plaintiff

              Betsy L. Gross
              c/o her attorneys of record:
              Steven E. Aldous
              Braden, Varner & Aldous) P.C.
              703 McKinney Avenue, Suite 400
              Dallas, Texas 75202
              (214) 740~0212
              (214) 740-0217 fax
              Defeudant/CounterftPJaintiff

              Roxann Taylor
              Realty Executives - The Roxann Taylor TefUn
              640 North Carroll Avenue
              Southlake, Texas 76092
              The Grosses' real estate agent for subsequent sale of property

              Brent Cooper
              Jana S. Reist
              Gordon Wright
              Cooper & Scully, P.C.
              900 Jackson Street, Suite 100
              Dallas> Texas 75202
              (214) 712-9500
              The Grosses' counsel




       DEFENDANTS/COUNTER-PLAlNTIFFS' KEN GROSS AND BETSY GROSS' WITNESS LIST                        Page Z




                                                                                             zs:s1   E10~/9~/tt   ·
12/05/2013       12:05      2147547115                        LAW OFFICE OF V SHAW                        PAGE    10/15




                  Steven E. Aldous
                  Braden, Varn.er & Aldous, P.C.
                  703 McKinney Avenue, Suite 400
                  Dallas) Texas 75202
                  (214) 740~0212
                  (214) 740~0217 fa."<.
                  The Grosses~ counsel

                                            II.
                      PER$0NS WHO MAY BE GALLED AS AN ADVERSE WITNESS
                 Van Shaw, individually and as a representative of
                 VSDH Vaquero Venture; Ltd.
                 2723 Fairmount Street
                 Dall.as~ Texas 75201

                 Doug Hickok, individually and as a representative of
                 VSDH Vaquero Venture~ Ltd.
                 c/o his attorney of record~
                 Kenneth B. Chaiken
                 Chaiken & Chaiken) P.C.
                 13355 Noel Road, Ste. 600
                 Dallas, Texas 75240

                                                             III.
                                                   OTHER WITNESSES
                 In addition, the Grosses reserve the right to supplement this list pursuant to the Texas

         Rules of CiVil Procedure and incorporates by reference any and all individuals and/or entities

          listed by the other parties in their respective Responses to Requests for Disclosures. Further? the

          Grosses hereby incorporate by reference any additional persons who are identified in documents

          produced in the current lawsuit..




          DEFENDANTS/COUNTER-PLAlN1'lFFS' KEN GROSS AND EETSY GROSS; WITNESS LIST                      Pag~   3




90/170   39V'd
 12/05/2013      12:05    2147547115                       LAW OFFICE OF V SHAW                         PAGE   11/15




                                                           Respectfully submitted.




                                                            TEVEN E. ALDOUS
                                                           State Bar No. 00982100
                                                           saldous@bvals.w.co:m
                                                           BRADEN, VARl'lER & ALDOUS, .P.C.
                                                           703 McKinney Avenue, Suite 400
                                                           Dallas, Texas 75202
                                                           (214) 740~0212
                                                           (214) 740-0217 fax

                                                           Attorney for.Defendants/Counter Plaintiffs




                                       CERTitJJ.:ATE OF SERVICE

                 The undersigned certifies that a true and correct copy of the foregoing instrument was
         served upon the following attomeys of record in accordance with Rule 21a of the Texas Rules of
         Civil Procedure on the 26th day of November, 2013.


                 Kenneth "B. Chaiken                              Evan Lane (Van) Shaw
                 Chai.ken & CHaiken, P. C.                        Law Offices of Van Shaw
                 Legacy Town Center III                           2723 Fainnont Street
                 5801 Tennyson Pkwy.~ Suite 440                   Dallas, Texas 75201
                 Plano, Texas 75024




         DEFENDANTS/COUNT£R-PLAINTIFFS' KEN GROSS AND BETS\' GROSS' WITNESS LIST                 .Page 4




90/90   39'i1d
12/05/2013   12:05      2147547J 15                       LAW OFFICE OF V. c;HAW                        PAGE        12/15




                                                LAW OFFICES
                                                       OF
                                                  VAN SHAW
                                                ATTORNEYS AT LAW

                                                 2723 FAIRMOUNT
                         VAN SHAW"             DALLAS, TEXAS 75201                            OANIEl K. HAGOOD
                       JANET R. Rl\NDl.F.          (214) 754·7110                               OF COUNSeL
                                               FAX NO. (214) 754-7115
                     • SOAF~O CERTIFIED IN                                                  Ct::RTIFlED Pl\RAl.F.GALS
                       PE:RSONAL INJUF!Y
                                              www.shawlawoffice.com                             RHONDA VINCENT
                      • CSRTIFIED PUBLIC                                                         LORI G. MOORE
                         ACCOUNTANT                                                             APRILS. SUMNER



         Mr. Steve Aldous                                               December2, 2013
         ATTORNEY AT LAW                                                FAX (214*740-0217)
         703 McKinney A venue, Suite 400                                =PH 214*740-0212 =
         Dallas; Texas 75202


         Re: VSDH V. Gross

         Dear Mr. Aldous:

         I received your List of Witnesses and Notice that I am 11sted as a possible witness by you.
         IfI am to be called I cannot then be counsel for VSDH and will need time to find other
         counsel

         Please let mefi~w if you will /will not be cal li:og me so that I can make plans
         acctrd1ng1(
         ThanI ,
              I



         Van Shaw
         VS/rv

         Cc: Ken Chaiken              email
12/05/2013     12:05     2147547115                                 LAW OFFICE OF V SHAW                              PAGE        13/15




                                             TRANSMISSION 'vERIFICATIOi'l REPORi

                                                                                        TIME          12/02/2013 07:27
                                                                                        NAME          LAW OFFICE OF V SHAW
                                                                                        FAX           2147547115
                                                                                        TEL       :   2147547110
                                                                                        SER.   ff ;   BROA0J127259



         DATE, TIME                                                    12/02 07:27
         FAX i'IO. /NAME                                               2147400/.17
         DURATION                                                      00:06:16
         PAGE(S)                                                       01
         RESULT                                                        rn<
         MODE                                                          STANDARD
                                                                       ECM




                                                            LAW OFFICES
                                                                OF
                                                             VAN SHAW
                                                            ATTORNEYS AT JJ\W
                                                             2723 FAIRMOUNT
                               VAN SHAW"
                           JANF.T Fl. RANDLE               DALLAS, TE;XAS 75201
                                                               {214) 754·7110                                  CAN/EL K H.J\0000
                                                           FAX NO. (214) 754-711;;                               (\fOCOONS!;l
                        • J;10ARD 09!<'1"(~/EI:.\ IN
                          P.ERSONAL INJLtRY             WMl/.Shawlawoffice ..com                            C/;l~Ttl'"fEO PARALEGALS:
                         'Cl;RTIFISO PU!'!uc                                                                    ~ONOA VTNCENT
                            ACCO UM"llNi                                                                         ~osr G. MOORE'
                                                                                                                A"l'\IL S, S~IMN!;R

             Mr. Steve Aldous
             ATTORNEY AT LAW                                                         December 2, 2013
             703 McKinney Avenue, Suite 400                                          FAX (214*740~0217)
             Dallas) Texas 75202                                                     =PH 214*740~0212,,,.

             R.e: VSDH V. Gross

             Dem· Mr. Aldous:

         r received your List of Witnesses and Notice that l am listed as a possible witness by you.
         IfI am to be called r cannot tben be counsel for VSDH and will need time to find other.
         counsel

         Please let me kfow if You '11,rill I will not be calling me so that I can make pJans
         accordingj>7

         Th~/
              ;·
        Van Shaw
12/06/2013   12:05         2147547115                       LAW OFFICE OF V SHAW                        PAGE      14/16




                                                 LAW OFFICES
                                                        OF
                                                   VAN SHAW

                                                 AITORNEYS AT LAW
                                                   2723 FAIRMOUNT
                           Vl'INSHAW'            DALLAS, TEXAS 75201                         DANIEL K HAGOOD
                         JANET R RANDLE             (214) 754"7110                                OF COUNSEL
                                                FAX NO. (214) 754-7115
                     • BOii.RO C5RTIFIF.D IN                                               CERTIFIEO PARALEGALS
                       PERSONAL INJURY
                                               www.shawlawoffice.com                            RHONDA VINCF.NT
                      • Cl:f<ilF'IED PUBLIC                                                      LORI G. MOORE
                         ACCOUNTANT                                                             APRILS. SUMNER




        Mr. Steve Aldous                                                  December 5, 2013
        ATTORNEY AT LAW                                                  FAX (214*740-0217)
        703 McKinney Avenue, Suite 400                                   =PH 214*740-0212 ...
        Dallas, Texas 75202                                              saldous@bvalaw.com

        Re: VSDH v. Gross

        Dear Mr. Aldous:

        I called you to discuss a moment ago and Jeft a message as you were unavailable. I have
        not heard from you in reply to my fax as to whether of not you will I will not be calling
        me as a witness at)rial. I need to know asap as if you will call me, I cannot be counsel if
        I am to be a wit1;i.ess.
                        "
        Please advisr;/asap.

        Thanks,      I
        VanSlL
        VS/rv

        Cc: Ken Chaiken                email




                                                                                     EXHIBIT
    12/05/2013   12:05                 2147547115                           LAW OFFICE OF V.SHAW                                         PAGE    15/15


                                                                                                .   ·•r.alrn~d & s~v~d by:~
                                                     TRANSMlSSION VERIFICATION REPCJRT              sc:;in Chedrnll   by:-~~
                                                                                                TIME          12/05/2013 11: ll
                                                                                                NAME          LAW OFFICE                OF V SHAW
                                                                                                FAX           2147547115
                                                                                                TEL           2147547110
                                                                                                SER.#         BROA0J127:259


I

             DATE,. TIME                                                       12/05    11:11
             FAX NO./NAME                                                      2147400217
             DURATION                                                          00:00:15
             PAGE(S)                                                           01
             RESULT                                                            OK
             MODE                                                              STANDARD
                                                                               ECM




                                                               LAW OFFICES
                                                                       OF
                                                                 VAN SHAW
                                                               ATTORNt:YSAT LAW
                                                                 2723 FAIRMOUNT
                                                               DALI.AS, TE!XAS 75201                                    OflNl!l K HAMOD
                               VANSl'IAW"
                                                                                                                          OF COUNSEL
                             JAN!iT F!, PU\NCILl:l                 (Z14) 754·1110
                                                               FAX NO. (214) 754·7115                                 CSRTIFll3J;I P1\AALtGALS
                         'BOl\RD CERT!FleC> IN               www,shawls~ffiee.com                                        Rl-IONCl~ VIHCENt
                          PERSONA!. !N./Ul'c'f
                                                                                                                            ~Ol'\I   G, MOORE
                          • CSRTIFIED PUl!!LJO
                             ACCOUNTMIT
                                                                                                                            APRll S. SUMN"R



            Mr. Steve Aldous                                                               December 5~ 2013
            ATTO&"'iEY AT LAW                                                             FAX (214"'740-0217)
            703 McKinney Avenue, Suite 400                                                =PH 214!+.740-0212          ;:=

            Dallas, Texas 75202                                                           saldous@bvalaw.com

            Re; VSDH v. Gross

            Dear Mr. Aldous:

            I called you to discuss a moment ago and left a message as you were unavailable, I .have
            not heard from you in reply to my fax as to whether of not you will I will not be calling
            me as a witness at.:trlal. I need to know asap as if you Vvill call me, I cannot be counsel if
            I am to be a \Vitt;ess.
                            ,.
                                   I
                               I
            Please advisefasap.
                         /
            Thanks./
                 _[
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ht1ps:JAw.w.prcdocefile.com'20/SubAc~CllMedgementaspx                                                                                                          1/1
TAB 18
                                                                                                              FILED
                                                                                                6/2/2014 1:41:35 PM
                                                                                                   JOHN F. WARREN
                                                                                                    COUNTY CLERK
                                                                                                  DALLAS COUNTY



                                  CAUSE NO. CC-09-05232-A

VSDH VAQUERO VENTURE, LTD.,                  §          IN THE COUNTY COURT
                                             §
         Plaintiff/Counter-Defendant         §
                                             §
                                             §
v.                                           §
                                             §
KEN GROSS AND BETSY GROSS,                   §          AT LAW NUMBER 1
                                             §
         Defendants/Counter-Plaintiffs       §
                                             §
v.                                           §
                                             §
DOUGLAS M. HICKOK,                           §
                                             §
         Intervenor/Counter-Defendant.       §          DALLAS COUNTY, TEXAS

                                   NOTICE OF HEARING

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

         A hearing on Ken Gross and Betsy Gross’ Motion to Disqualify Evan L. Shaw will be held

on Wednesday, June 18, 2014, at 8:30 a.m., in the County Court at Law No. 1, Dallas County,

Texas.


                                                   Respectfully submitted,

                                                   /s/ Steven E. Aldous
                                                   Steven E. Aldous
                                                   State Bar No. 00982100
                                                   FORSHEY PROSTOK, LLP
                                                   500 Crescent Court, Suite 240
                                                   Dallas, TX 75201
                                                   (214) 716.2100
                                                   (214) 716.2115
                                                   saldous@forsheyprostok.com

                                                   Attorney for Defendants/Counter-Plaintiffs
                                                   Ken Gross and Betsy Gross


Notice of Hearing:                                                                   Page 1 of 2
                               CERTIFICATE OF SERVICE

        I hereby certify that on June 2, 2014, a true and correct copy of the foregoing document
was served, via email, through the Electronic Filing Manager in accordance with the Texas Rules
of Civil Procedure, to all counsel of record.

                                                   /s/ Steven E. Aldous




Notice of Hearing:                                                                    Page 2 of 2
TAB 19
                                                               1



 1                        REPORTER'S RECORD
                        VOLUME 1 OF 1 VOLUME
 2                     CAUSE NO. CC-09-05232-A

 3   VSDH VAQUERO VENTURE, LTD.,)     IN THE COUNTY COURT
             Plaintiff/          )
 4           Counter-Defendant, )
                                 )
 5   V.                          )
                                 )
 6   KEN GROSS and BETSY GROSS, )
             Defendants/         )    AT LAW NO. 1
 7           Counter-Plaintiffs )
                                 )
 8   V.                          )
                                 )
 9   EVAN L. SHAW and DOUGLAS M.)
     HICKOK,                     )
10           Intervenors/        )
             Counter-Defendants. )    DALLAS COUNTY, TEXAS
11

12
     -------------------------------------------------------
13
               KEN GROSS AND BETSY GROSS' MOTION
14                 TO DISQUALIFY EVAN L. SHAW
     -------------------------------------------------------
15

16

17              On the 18th day of June, 2014, the following
18   proceedings came on to be heard
                                   outside the presence of
19   a jury in the above-entitled and -numbered cause before
20   the Honorable D'METRIA BENSON
                                 , judge presiding, held in
21   Dallas, Dallas County, Texas.
22              Proceedings reported by computerized stenotype
23   machine.    Reporter's Record produced by computer-aided
24   transcription.

25




                                                                   APX 18
                                                  2



 1                        APPEARANCES:
 2   MS. JANET R. RANDLE
     SBN 00792216
 3   Law Offices of Van Shaw
     2723 Fairmount
 4   Dallas, Texas 75201
     (214)754-7110
 5   ATTORNEY FOR PLAINTIFF
                          /COUNTER-DEFENDANT
     VSDH VAQUERO VENTURE,LTD.
 6
        - AND -
 7
     MR. KENNETH B. CHAIKEN
 8   SBN 04057800
     Chaiken & Chaiken, P.C.
 9   Legacy Town Center III
     5801 Tennyson Parkway
10   Suite 440
     Plano, Texas 75024
11   (214)265-0250
     ATTORNEY FOR COUNTER-DEFENDANT
12   DOUGLAS M. HICKOK

13      - AND -

14   MR. STEVEN E. ALDOUS
     SBN 00982100
15   Forshey & Prostok, LLP
     500 Crescent Court
16   Suite 240
     Dallas, Texas 75201
17   (214)716-2101
     ATTORNEY FOR DEFENDANTS/COUNTER-PLAINTIFFS
18   KEN GROSS AND BETSY GROSS

19

20

21

22

23

24

25




                                                      APX 19
                                                           3



1                            INDEX

2    JUNE 18, 2014                               PAGE   VOL.
 3   PROCEEDINGS..............................      4     1

 4   COURT'S RULING ..........................     15     1

 5   ORAL MOTION FOR CONTINUANCE.............      16     1

 6   COURT'S RULING...........................     17     1

 7   END OF PROCEEDINGS.......................    21      1

 8   REPORTER'S CERTIFICATE...................    22      1

 9

10                    EXHIBIT INDEX (NONE)
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25




                                                               APX 20
                                                                4



 1                           PROCEEDINGS
 2                          June 18, 2014
 3                  THE COURT: This is Cause No. 09-05232-A,
 4   VSDH Vaquero Venture, LTD versus Ken Gross and Betsy
 5   Gross.    Please make your announcements for the record
                                                          .
 6                  MR. ALDOUS: Steve Aldous for the Grosses.
 7                  MS. RANDLE: Janet Randle appearing for
 8   Van Shaw, the attorney being -- attempting to be
 9   disqualified, and also counsel for VSDH.
10                  MR. CHAIKEN: Kenneth Chaiken for Douglas
11   Hickok.
12                  THE COURT: Okay.   You may proceed,
13   Mr. Aldous.
14                  MR. ALDOUS: Your Honor, if you recall, we
15   were set for trial in December on this very case, and
16   Mr. Shaw showed up, asked for a continuance at that time
17   saying that he may and likely would be a witness in the
18   case and that he was seeking a continuance on that
19   basis.    And if you recall, he had Mr. Hagood come to
20   pick the jury in the event we were to proceed to the
21   jury.    We didn't proceed to the jury.   I then sent an
22   email to Mr. Shaw asking him if he will agree to
23   withdraw based upon his statements to the Court.     He
24   said, "no."   So I filed this motion.
25                  The motion basically says if you -- if the




                                                                    APX 21
                                                                   5



 1   lawyer is going to be a witness, the new rule says you
 2   can't act as an advocate before the Court.     That means
 3   anything.   And as a result, Your Honor, we're moving to
 4   dismiss him as a result of him being a witness.
 5                   THE COURT: Ms. Randle?
 6                   MS. RANDLE: Well, yes, Your Honor. First
 7   of all, let's talk about the delay.      Our argument is in
 8   terms of the setting of this motion, this motion is six
 9   months after counsel has known about the issue.       The
10   issue was first raised in December.      And at that time,
11   it wasn't Mr. Shaw saying he was going to testify; it
12   was Mr. Shaw contacting counsel
                                   because Mr. Shaw
13   appeared on counsel's witness list -- or defendants'
14   witness list.
15                   Mr. Shaw -- and it's in the record.
16   Counsel has attached it to different correspond --
17   letters from Mr. Shaw saying, "Tell me what it is.      Are
18   you going to call me or aren't you going to call me?"
19   And Mr. Shaw -- the evidence before the Court in those
20   letters is that counsel refused to give Mr. Shaw an
21   answer.   So Mr. Shaw did not withdraw.    It wasn't
22   Mr. Shaw's testimony that he was going to testify on
23   behalf of himself.    And I can't recall if at that time,
24   Your Honor, Mr. Shaw was still a defendant.     And I
25   really don't recall when the summary judgment was




                                                                       APX 22
                                                              6



 1   granted.
 2                MR. ALDOUS: He was not a defendant at the
 3   time.
 4                MS. RANDLE: Okay.   Well, I appreciate
 5   counsel, and I'll assume counsel's correct.
 6                MR. CHAIKEN: That is correct
                                             .
 7                MS. RANDLE: So anyway, Your Honor, we
 8   have counsel coming before the Court today, less than
 9   three weeks before trial -- again, the trial is set in
10   July -- when counsel filed this motion back in February
11   and here we are in June hearing a motion that should
12   have been heard sooner if there was an issue.   It should
13   have been filed in December when counsel just told you
14   that he was advised Mr. Shaw was not going to withdraw
15   voluntarily on his own.
16                THE COURT: Well, it was filed in
17   February, correct?
18                MS. RANDLE: Correct, Your Honor.    It's
19   now June.
20                THE COURT: It's not like it was filed
21   yesterday.
22                MS. RANDLE: Well, I understand that.
23   But, you know, February to June, it's almost been four
24   months.
25                MR. ALDOUS: I think the delay here is not




                                                                  APX 23
                                                                     7



 1   my delay but Mr. Shaw's delay.   And I know that counsel
 2   wasn't here when Mr. Shaw told the Court and what he
 3   told the Court and Mr. Chaiken's statement that he would
 4   be calling Mr. Shaw as a witness as well.    And even to
 5   this day, I cannot confirm that I will call Mr. Shaw,
 6   but I can say that it's more than a 50 percent chance.
 7   So, you know, I just don't want him -- I don't care what
 8   he does.
 9                 Counsel, you can say whatever.    I mean, I
10   don't care if he's a lawyer or not for the case.      The
11   question is the rule.   The rule says that he's not
12   supposed to do it.   If he wants to do it, fine.      I just
13   don't want him using it as an excuse for a continuance
14   like he did back in December.
15                 MR. CHAIKEN: Can I make one comment?
16                 THE COURT: You may, Mr. Chaiken.
17                 MR. CHAIKEN: Thank you.    Because I was
18   here.   First of all, I'm a little surprised that we are
19   here at this juncture because I -- and maybe it's just
20   my own mind at work.    I thought, given that the motion
21   was filed in February and then there was no attempt to
22   set it until recently, that the issue was basically a
23   dead issue.   But I guess I was mistaken on that.     So I'm
24   a little troubled by the timing of it all.     But,
25   nevertheless, I just want to be clear on the record.        I




                                                                         APX 24
                                                                8



 1   have never said that I am going to call Mr. Shaw as a
 2   witness.    I said that I may need to call Mr. Shaw as a
 3   witness.    And if I do call Mr. Shaw as a witness, it
 4   will be simply to rebut testimony that has been offered
 5   by Mr. Gross or his -- testimony given by Mr. Gross
 6   regarding certain interactions that he has had with
 7   Mr. Shaw.
 8                  THE COURT: So those would be factual
 9   issues.
10                  MR. CHAIKEN: They would be factual issues
11   because he was a fact witness toalleged conversations
12   that occurred outside the scope of litigation and
                                                    prior
13   to litigation.   But, again, I don't know how the trial's
14   going to shape up in terms of what the Court's going to
15   let into evidence and not let into evidence.
16                  And the other thing that I wanted to
17   mention is -- because that issue, that last issue, to me
18   is probably the most criticalone.    There have been
19   recently filed cross-motions for summary judgment,
20   which, from my point of view and I think from
21   Mr. Aldous' point of view from our conversations, would,
22   depending on the Court's rulings on those, significantly
23   not only narrow the scope of the trial depending on the
24   rulings, but at least shape those issues for trial
25   purposes, which will have a bearing on whether or not,




                                                                    APX 25
                                                               9



 1   if there is a trial left, Mr. Shaw would be a witness or
 2   not be a witness.
 3                And so we, unfortunately, filed these
 4   motions about the same time and haven't been able to
 5   obtain a setting on those motions.   And so my only issue
 6   would be that -- that if there's a way that we can get
 7   the summary judgments heard and ruled on before the
 8   current trial date, which I know is a difficult
 9   proposition because I understand that Your Honor is
10   going to be gone the week before the July 4th -- or
11   unavailable, I don't know about gone, the week before
12   the July 4th weekend or week.
13                THE COURT: No.     I'm planning to be here
14   that week.
15                MR. CHAIKEN: I had been informed when I
16   attempted to get a settingthat you had no availability.
17   Maybe -- is there a judicial conference or something
18   going on or --
19                THE COURT: No.     Maybe we just have a full
20   docket.
21                MR. CHAIKEN: Maybe it's a full docket,
22   but I had understood that you were unavailable for a
23   reason other than a busy schedule, but I could be
24   mistaken.
25                MS. RANDLE: Your Honor --




                                                                   APX 26
                                                               10



 1                  THE COURT: The week of the 4th --
 2                  MS. RANDLE: -- I would also like to
 3   continue.
 4                  THE COURT: Just a second.    The week of
 5   the 4th of July?
 6                  MR. CHAIKEN: The week of the 4th, yeah.
 7                  THE COURT: No.   That's a different issue.
 8                  MR. CHAIKEN: Okay.
 9                  THE COURT: There's a conference during
10   that week.
11                  MR. CHAIKEN: Okay.   That might have been
12   where I got confused in terms of what the lack of
13   availability was about, but I don't know.    If there's a
14   way to possibly postpone the start date of the trial and
15   hear the summary judgment and then defer the ruling
16   based upon the outcome, I think it may help shape the
17   question.    I don't know. Steve and I talked about --
18   excuse me. Mr. Aldous and I talked about bringing that
19   to your attention and seeing if there's a way that we
20   might be able to address that question.
21                  THE COURT: Have you been to mediation
22   since Mr. Aldous has been on the case?
23                  MR. ALDOUS: We have, Your Honor.
24                  MR. CHAIKEN: Since you got involved
                                                      ?
25                  MR. ALDOUS: Yes.




                                                                    APX 27
                                                               11



 1                   MR. CHAIKEN: Who did --
 2                   MR. ALDOUS: Judge Stanton.
 3                   MR. CHAIKEN: Oh, that's right.     Yeah, we
 4   sure did.
 5                   THE COURT: And he was unable to resolve
 6   this with you?
 7                   MR. ALDOUS: He was.
 8                   THE COURT: Ms. Randle?
 9                   MS. RANDLE: Yes, Your Honor.    I'd like to
10   finish my arguments.    I started with this idea that
11   there is essentially a waiver.    And the case I'd like to
12   cite to the Court on that is a case -- it's BP AM
13   Production Company versus Zaffirini 419 S.W.3d 485.      And
14   that is a San Antonio 2013 case.      And in that case, the
15   time period's a little longer.    It was an affidavit of
16   the attorney that was filed, and the opposing counsel
17   waited seven months before the opposing counsel set it
18   for hearing.    And it happened to be three days before a
19   summary judgment, and the Court said you essentially --
20   it's too late.    You've waived it.
21                   Now that's not my only argument.   Counsel
22   indicated that the rule is any time an attorney is going
23   to testify, and I disagree. That isn't the rule.       The
24   rule that's been moved on is the Rule of Professional
25   Conduct 3.08.    And that rule requires defendant to come




                                                                    APX 28
                                                              12



 1   into this court with evidence that Mr. Shaw in his
 2   testimony that is alleged to have been -- whatever it is
 3   he's going to testify to has to be an essential fact to
 4   the case, and it has to be something that the -- that
 5   cannot be obtained by anyone else.
 6                  There is no evidence before this Court to
 7   that affect.   Counsel has not met the burden of coming
 8   forward and establishing that information.   The rule is
 9   not that an attorney cannot testify.   There is also an
10   exception that an attorney can testify if they're a
11   defendant.   Now Mr. Shaw was a defendant, and now -- but
12   Mr. Shaw is also an owner of VSDH.
13                  THE COURT: Which is a corporate entity,
14   correct?
15                  MS. RANDLE: It's a corporate entity
                                                      , but
16   I'm just saying --
17                  MR. CHAIKEN: I believe it's a limited
18   partnership just for clarity.
19                  MS. RANDLE: But there is -- I don't have
20   a case that says that.   But my argument is that there is
21   a situation with respect to a self-interest.   If you're
22   going to say that you can't testify or you can testify
23   if you are strictly a defendant, the question becomes:
24   What is the purpose of that rule?
25                  So my position today is, Your Honor, that




                                                                   APX 29
                                                                13



 1   the motion before the Court does not present this Court
 2   with any evidence of what Mr. Shaw's testimony is that
 3   counsel suggests triggers under Rule 3.08 a
 4   responsibility for this Court to disqualify him.
 5                   THE COURT: Where in the rule do you find
 6   a requirement that they have to present evidence ofthat
 7   testimony?
 8                   MS. RANDLE: Well, Your Honor, they're the
 9   moving party.    There are exceptions.
10                   THE COURT: I'm looking at the rule.    I
11   don't see anything that says that they have to present
12   testimony about what the --
13                   MS. RANDLE: Well, Your Honor, all --
14                   THE COURT: -- what the lawyer would --we
15   can't talk at the same time.
16                   MS. RANDLE: I'm sorry.
17                   THE COURT: -- what the lawyer would
18   testify to.   I did ask whether or not he would be
19   testifying as to fact issues, which I think is
20   important.
21                   MS. RANDLE: Fact issues, but, Your Honor,
22   it's not just fact issues.     The rule requires them to be
23   essential fact issues that only Shaw can testify to.       If
24   there's a source that you can get that fact issue from
25   someone else -- you know, there's no evidence that Shaw




                                                                     APX 30
                                                               14



 1   is going to testify to that.    That's the problem here.
 2   Counsel has not indicated he's going to call Shaw. No
 3   one has come before this Court to say, "Mr. Shaw is
 4   going to testify to fact A. Mr. Shaw is the only person
 5   who can testify to that fact. It's essential to the
 6   case; therefore, Mr. Shaw needs to be disqualified."
 7                   There are -- the majority of cases that
 8   are cited that are -- that are the note cases are cases
 9   overruling the trial Court's denial or granting of the
10   motion based upon those very issues of evidence not
11   provided by the moving party seeking disqualification
                                                         .
12   And that is something that counsel has not provided to
13   this Court at all, and counsel first knew about this
14   issue in December.    It's now six months later, and you
15   still -- this Court has no idea what is the testimony
16   that is going to be at issue.    No one has presented that
17   to the Court.
18                   THE COURT: Mr. Chaiken just said that he
19   would be asking Mr. Shaw questions with regard to the
20   testimony of Mr. Gross.    And if he does that, then I
21   assume that Mr. Aldous will have questions as well.
22                   MS. RANDLE: Well, Your Honor, I guess --
23                   THE COURT: Now, I think the way to
24   resolve this is that Mr. Shaw may not represent VSDH
25   pursuant to the section in the rule, the note -- it's




                                                                    APX 31
                                                             15



 1   Note 8 -- that says, "The rule does not prohibitthe
 2   attorney who may or will be a witness from participating
 3   in the preparation of amatter for presentation to a
 4   tribunal. However, to minimize the possibility
                                                  of
 5   unfair prejudice toan opposing party, the rule
 6   prohibits any testifying lawyer who could not serve as
 7   an advocate from taking an active role before the
 8   tribunal in the presentation of the
                                       matter."
 9                 So he may stay on the case, but he may not
10   make any presentations before the Court.
11                 MS. RANDLE: Well, Your Honor, on what --
12   on what testimony, though?   That's -- I guess that's the
13   question.   What is the testimony that is being used to
14   prohibit Mr. Shaw from --
15                 THE COURT: The problem is we don't know,
16   but we do know that he is likely to be a witness in this
17   case.   And that's what the rule addresses.   It says, "A
18   lawyer shall not accept or continue employment as an
19   advocate before a tribunal in a contemplated or pending
20   adjudicatory proceeding if the lawyer knows or believes
21   that the lawyer is or may be a witness necessary to
22   establish an essential fact."
23                 MS. RANDLE: "An essential fact," that's
24   my point, Your Honor.   And that's what --
25                 THE COURT: Well, "knows or believes that




                                                                  APX 32
                                                               16



 1   he may be," and therein lies the rub.   So my ruling is
 2   my ruling.   He may continue to represent; he just may
 3   not represent before this tribunal.
 4                  MS. RANDLE: Okay.   Your Honor, I then ask
 5   for a continuance at this time because Mr.Shaw has been
 6   sitting here waiting. Just as Mr. Chaiken said,
 7   everyone thought this issue was gone.   Now we have a
 8   motion set seven -- three weeks before trial.    So I'm
 9   asking for a continuance of the trial to allow --
10                  THE COURT: This is a 2009 case.
11                  MS. RANDLE: Your Honor, I understand
12   that.
13                  THE COURT: It's been pending on the
14   docket of the Court for an excessive amount of time.
15   The last time Mr. Shaw did appear before the Court, he
16   did appear with Mr. Hagood -- the Court has a specific
17   recollection of that -- with the specific intent that
18   Mr. Hagood would conduct the trial portion of the
19   proceedings and that he would be here in an advisory
20   capacity.    And so the Court's ruling is that's what's
21   going to happen.
22                  MS. RANDLE: Okay.   Your Honor, just to
23   note, since that time, as Mr. Chaiken said, everything
24   has gone away.   And now we have a motion filed, but I
25   haven't heard the Court render any discussion regarding




                                                                    APX 33
                                                               17



 1   the delay in now filing a motion and now three weeks
 2   before trial.    I don't even know if Mr. Hagood is even
 3   available now.
 4                   THE COURT: Mr. Hagood was informed of the
 5   time of the trial as was Mr. Shaw, correct?
 6                   MR. ALDOUS: Yes, Your Honor.
 7                   MS. RANDLE: Yes.   But the question is:
 8   Was he informed of the trial with respect to being trial
 9   counsel, actual counsel?
10                   THE COURT: He was here in that capacity.
11                   MS. RANDLE: So, Your Honor, I'd just move
12   for a continuance to allow at least, you know --
13                   THE COURT: The Court is disinclined to
14   allow another continuance in a 2009 case.
15                   MR. ALDOUS: I object to not getting
16   three-days' notice of the motion, Your Honor.
17                   MS. RANDLE: Your Honor, I understand.
18   I'm just moving for the continuance to allow Mr. Hagood
19   to prepare for trial now that counsel has filed a motion
20   three weeks before trial raising the issue before this
21   Court.
22                   THE COURT: The testimony before the Court
23   was that Mr. Aldous asked Mr. Shaw some months ago
24   whether or not hewould be proceeding and that no
25   response was provided.




                                                                    APX 34
                                                                 18



 1                   MS. RANDLE: Your Honor, I --
 2                   THE COURT: The Court has made its ruling.
 3                   MR. ALDOUS: Thank you, Your Honor.
 4                   MR. CHAIKEN: Your Honor, can I just ask
 5   one question?    I had raised the possibility of getting
 6   some of your time to consider those cross-motions.
 7                   THE COURT: I'll have to look at the
 8   docket, Mr. Chaiken. I can't just tell you off the bat.
 9                   MR. CHAIKEN: Well, my only question is:
10   Would the Court be inclined to allow the shortening of
11   the 21-day notice period, assuming we agree to that?
12                   MR. ALDOUS: We do agree to that.
13                   THE COURT: I still have to look at the
14   docket.
15                   MR. ALDOUS: Right.
16                   MR. CHAIKEN:   Okay.   And if we could do
17   that, I'd appreciate it, just kind of figuring that out
18   one way or the other so that I can close the loop on
19   that.
20                   MS. RANDLE: Your Honor, I'm not making
21   any representation before the Courtas to any agreement
22   as to any extension at this time.      I just want it to be
23   clear.
24                   THE COURT: Would these be summary
25   judgment motions involving VSDH, or would it just be




                                                                      APX 35
                                                             19



 1   involving the Grosses and Mr. Hickok?
 2                  MR. CHAIKEN: Mr. Hickok was the first
 3   movant for summary judgment, and then it's not really a
 4   cross -- well, it is.    It's related to some of the
 5   issues.    So in effect, it's a cross-motion
                                                filed by the
 6   Grosses, but it's as between the claims involving the
 7   Grosses and Mr. Hickok as a guarantor, not VSDH per se.
 8                  MR. ALDOUS: It's just related to
 9   construction of the contract --
10                  MR. CHAIKEN: Well, it -- no.
11                  MR. ALDOUS: -- essentially.
12                  MR. CHAIKEN: Mine also involves one
13   additional issue, which is whether or not there -- as a
14   matter of law, the buy-back obligation, whether owed by
15   VSDH or a guarantor, could have been performed.    That's
16   the second issue that's raised in my summaryjudgment
17   motion.
18                  MR. ALDOUS: But I thought that was based
19   upon the wording of the contract.
20                  MR. CHAIKEN: That is the remedies
21   portion.    But, yeah.   But anyway,
                                        it would certainly
22   help things if we can get it done.   And if the Court
23   can't do it, I certainly understand that timing is what
24   it is.
25                  THE COURT: Well, I can't tell you right




                                                                  APX 36
                                                               20



 1   now is what I'm telling you.
 2                MR. CHAIKEN: No, no, I understand.
 3                THE COURT: I'll just have to get back
 4   with you on that.
 5                MR. ALDOUS: Are we released, Your Honor?
 6                THE COURT: Who's going to -- you're going
 7   to present an order, Mr. Aldous?
 8                MR. ALDOUS: I will.
 9                THE COURT: Circulate it.
10                MR. ALDOUS: Based upon your ruling, I'll
11   have to change it.
12                MS. RANDLE: Your Honor, I'd like to see
13   the order before it's presented to the Court.
14                THE COURT: I just told him to circulate
15   it, Ms. Randle.
16                MS. RANDLE: I understand, but Isaid
17   before it's presented to the Court.
18                THE COURT: That's what "circulate" means.
19                MS. RANDLE: I just want to be clear.
20   It's not always clear to some counsel, Your Honor.
21                THE COURT: All right.
22                MR. CHAIKEN: Do you want us to go check
23   the docket to see what's available or --
24                THE COURT: No.    We'll get back with you.
25                MR. CHAIKEN: Okay.    Fair enough.   Sure.




                                                                    APX 37
                                                         21



 1   Thanks.
 2             MS. RANDLE: Are we excused, Your Honor?
 3             THE COURT: You're excused.
 4             MR. CHAIKEN: Thanks, Judge.
 5             (Proceedings concluded)
 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25




                                                              APX 38
                                                            22



 1   STATE OF TEXAS         )
 2   COUNTY OF DALLAS       )
 3           I, Cathye Moreno, Official Court Reporter in
 4   and for the County Court of Dallas County, Texas, County
 5   Court At Law Number One, State of Texas, do hereby
 6   certify that to the best of my ability the above and
 7   foregoing contains a true and correct transcription of
 8   all portions of evidence and proceedings requested in
 9   writing to be included in the Reporter's Record, in the
10   above-styled and -numbered cause, all of which occurred
11   in open court or in chambers and were reported by me.
12           I further certify that this Reporter's Record
13   of the proceedings truly and correctly reflects the
14   exhibits, if any, admitted by the respective parties.
15           I further certify that the total cost for the
16   preparation of this Reporter's Recordis $220.00 and
17   will be paid by the Law Offices of Van Shaw.
18           Witness MY OFFICIAL HAND this the 20th day of

19   June, 2014.

20
                        /S/CATHYE G. MORENO, CSR
21                      Cathye G. Moreno, Texas CSR #6076
                        Expiration Date: 12/31/14
22                      Official Court Reporter
                        County Court at Law No. 1
23                      600 Commerce Street, Suite 550
                        Dallas, Texas 75202
24                       cathyemoreno@sbcglobal.net
                        (214)653-7496
25




                                                                 APX 39
TAB 20
                                                                                       r1u:u
                                                                                  JOHN F. WARREN
                                                                                   COUNTY CLERK
                                                                                                    .0
                                                                              IALLASCOUNT~TEXAS

Conditionally Grant and Opinion Filed August 28, 2014                        201~ AUG 29 AH 11: 59




                                            In The
                                   <!tnurt nf Appeals
                       1J1ift1': ilintri.d nf Wcxan at ilallan
                                     No. 05-14-00958-CV

                   IN RE VSDH VAQUERO VENTURE, LTD., Relator

                 Original Proceeding from the County Court at Law No. 1
                                  Dallas County, Texas
                          Trial Court Cause No. CC-09-05232-A

                            MEMORANDUM OPINION
                        Before Justices FitzGerald, Francis, and Myers
                                  Opinion by Justice Francis
       Relator VSDH Vaquero Venture, Ltd. filed this mandamus proceeding after the trial court

made an oral ruling disqualifying Evan L. Shaw as its counsel on the ground he may be a witness

in the case. To obtain mandamus relief, relator must show both that the trial court abused its

discretion and that it has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d

124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839--40 (Tex.

1992) (orig. proceeding). VSDH has met its burden. We therefore conditionally grant the writ

of mandamus.

       Real parties in interest Kenneth and Betsy Gross are counter-plaintiffs below.        The

following facts are taken from their counterclaim and VSDH's motion for continuance. The

Grosses purchased residential property from VSDH; Shaw and Douglas M. Hickok are limited

partners in VSDH. The contract contained a "buy back" option requiring VSDH to repurchase

the property subject to particular terms and conditions. According to the Grosses, they exercised
the option. The Grosses allege that after VSDH, Shaw, and Hickok "affirmatively represented"

they would not "honor" the provision, the Grosses sold the property to a third party. VSDH filed

a declaratory judgment action contending it did not breach the contract, and the Grosses

counterclaimed against Shaw, Hickok, and VSDH for damages for breach of contract and fraud. 1

            Two weeks before the case was set to go to trial, VSDH received the Grosses' witness list

identifying VSDH's counsel, Shaw, as a "person who may be called as an adverse witness." By

this time, Shaw was no longer a defendant in the suit. Shaw wrote to the Grosses' counsel twice

to determine if he planned to call Shaw as a witness at trial. When the Grosses' counsel refused

to say one way or the other, Shaw filed a motion to continue the case until the Grosses decided

whether they were calling him as a witness and, if they decided they would be calling him,

additional time to locate and engage new counsel to represent VSDH. The trial was reset for

July 2014.

            Two and a half months later, the Grosses filed a motion to disqualify Shaw asserting that

Shaw had not withdrawn from representing VSDH and that "[n]othing had changed in terms of

the likelihood that Shaw will be called as a witness in the trial of this case." Relying on rule 3.08

of the Texas Disciplinary Rules of Professional Conduct, they asserted Shaw should not be

permitted to act as an advocate in the case. As the trial date neared, the Grosses set the motion

for a hearing on June 18, 2014. At the hearing, the Grosses presented no evidence to support

their motion, only argument. Counsel for the Grosses would not confirm whether he would call


     1
         Our record does not contain VSDH's petition, only the Grosses' counterclaim. The absence of the petition does not impair our ability to
consider the issue in this proceeding. See TEX. R. APP. P. 52.7(a).




                                                                      -2-
Shaw as a witness but said he believed it was "more than a 50 percent chance." He also

represented that counsel for real party Hickok had previously represented he would call Shaw as

a witness, but Hickok's counsel disputed that assertion, saying he may need to call him "simply

to rebut testimony that has been offered by Mr. Gross ... regarding certain interactions he has

had with Mr. Shaw." In response, VSDH complained the Grosses had failed to produce evidence

to trigger disqualification under rule 3.08(a). In particular, they asserted the Grosses failed to

show that Shaw would be testifying to an essential fact that could not be obtained by other

evidence. The trial court disagreed that evidence needed to be presented as to "what the lawyer

would testify to" and orally ruled that Shaw "may stay on the case, but he may not make any

presentations before the Court."

       An oral ruling may be subject to mandamus review if the ruling is clear, specific,

enforceable, and adequately shown by the record. See In re Penney, No. 05-14-00503-CV, 2014

WL 2532307, at *2 n.3 (Tex. App.-Dallas June 14, 2014, orig. proceeding) (mem. op.). An

appellate court can determine whether an oral ruling meets these criteria by reviewing the

reporter's record. Id. We conclude the oral ruling in this case meets the criteria.

       Because disqualification is a severe remedy, courts must adhere to exacting standards

when considering motions to disqualify so they are not used as a trial tactic. Spears v. Fourth

Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding). Here, the Grosses relied

on rule 3.08(a) of the disciplinary rules of professional conduct to disqualify Shaw. While the

disciplinary rules are not controlling as standards governing motions to disqualify, they serve as

guidelines that "articulate considerations relevant to the merits of such motions." Id.            The

burden is on the movant to establish with specificity a violation of the disciplinary rules. Id.

       Rule 308(a) of the disciplinary rules provides in relevant part: "A lawyer shall not accept

or continue employment as an advocate before a tribunal in a contemplated or pending

                                                -3-
adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness

necessary to establish an essential fact on behalf of the lawyer's client" except under certain

circumstances. See TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 3.08(a), reprinted in TEX.

Gov'T CODE ANN., tit. 2, subtit. G, app. A (WEST 2013) (TEX. STATE BAR R. art.           x,   § 9). A

party seeking disqualification of a lawyer under rule 3.08(a) must present evidence that the

testimony of the lawyer is necessary, that it goes to an "essential fact," and that the party will be

prejudiced if the opposing lawyer is permitted to serve in dual roles. See In re Lavizadeh, 353

S.W.3d 903, 904 (Tex. App.-Dallas 2011, orig. proceeding); see also In re Bahn, 13 S.W.3d

865, 872 (Tex. App.-Fort Worth 2000, orig. proceeding).            An attorney's testimony is not

considered necessary if there is no unqualified, positive intent to call the attorney as a witness.

See In Interest of A.M, 974 S.W.2d 857, 864 (Tex. App.-San Antonio 1998, no pet.) (citing

Spears, 797 S.W.2d at 658). If relying on rule 3.08(a), the moving party must further show that

the fact to be established by the attorney's testimony is essential to the testifying attorney's own

client's case as opposed to another's party's case. In re Lavizadeh, 353 S.W.3d at 904. Finally,

the moving party must show the trial court lacks any means other than disqualification to remedy

the harm to the opposing party. In re Bivins, 162 S.W.3d 415, 421 (Tex. App.-Waco 2005,

orig. proceeding). Where a party fails to present evidence to support all of these matters, the

party seeking disqualification fails to carry its burden and the trial court cannot reasonably

conclude the attorney's testimony is necessary to establish an essential fact to the party's case.

In re Lavizadeh, 353 S.W.3d at 904; Gilbert McClure Enters. v. Burnett, 735 S.W.2d 309, 311

(Tex. App.-Dallas 1987, orig. proceeding).

        Here, the Grosses did not present any evidence to support their motion to disqualify.

Consequently, based on the record before us, the trial court could not have reasonably concluded

that Shaw's testimony was necessary to establish an essential fact of VSDH's case. See In re


                                                 -4-
Lavizadeh, 353 S.W.3d at 904; Gilbert McClure Enters., 735 S.W.2d at 311. In reaching this

conclusion, we reject the Grosses' argument that the trial court could take judicial notice of the

contents of its file in making its decision. We note, first, that no party requested the court to take

judicial notice of any document. Second, nothing in the record reflects that the trial court took

judicial notice of any document. To the contrary, the record suggests the trial court did not know

what essential fact Shaw's testimony would establish or how the Grosses would be prejudiced if

permitted to testify to those facts. When VSDH's counsel asked what testimony was "being used

to prohibit" Shaw from representing VSDH, the trial court responded, "The problem is we don't

know, but we do know that he is likely to be a witness in this case. And that's what the rule

addresses .... "

        Appeal is an inadequate remedy for the improper disqualification of Shaw. See Spears,

797 S.W.2d at 657-58. Accordingly, we conditionally grant the relator's petition for writ of

mandamus and direct the trial court to vacate its oral order granting the Grosses' motion to

disqualify and to enter a written order denying the motion. A writ will issue only in the event the

trial court fails to comply.



        140958F.P05

                                                       /Molly Francis/
                                                       MOLLY FRANCIS
                                                       JUSTICE




                                                 -5-
                                                                            flLt.u                    FlLE COPY
                                                                       JOHN F. WARREN    0
CHIEF JUSTICE                                                          COUNTY CLERK                 LISA MATZ
 CAROLYN WRJGHT                                                     BALLAS COUNTY. TEXAS       CLERK OF THE COURT
                                                                                                  (214) 712-3450
JUSTICES
                                                                    81~ AUG 29 AH 11: 59
                                                                                             theclerk@5th.txcourts.gov
  DAVID L. BRIDGES
  MICHAEL J. O'NEILL                                                                              GAYLEHUMPA
  KERRY P. FITZGERALD                                                                        BUSINESS ADMINISTRATOR
  MOLLY FRANCIS                                                                                   (214) 712-3434
  DOUGLAS S. LANG                                                                          gayle.humpa@5th.txcourts.gov
  ELIZABETH LANG-MIERS                        <!Court of ltlppea1s
  ROBERT M. FILLMORE
  LANA MYERS                        jf tftb ~istritt of 'Qtexas at ~allas                           FACSIMILE
                                                                                                  (214) 745-1083
  DAVID EVANS
                                           600 COMMERCE STREET, SUITE 200
  DAVID LEWIS                                                                                         INTERNET
  ADA BROWN                                     DALLAS, TEXAS 75202                          HTTP://5TH.TXCOURTS.GOV
                                                   (214) 712-3400



                                                  August 28, 2014

       Evan Lane (Van) Shaw                                   Steven E. Aldous
       Law Offices of Van Shaw                                Forshey Prostok
       2723 Fairmount St                                      500 Crescent Ct
       Dallas, TX 75201-1912                                  STe. 240
       * DELIVERED VIA E-MAIL          *                      Dallas, TX 75201
                                                              * DELIVERED VIA E-MAIL         *
       Kenneth B. Chaiken
       Chaiken & Chaiken, PC
       Legacy Town Center III
       5801 Tennyson Parkway, Suite 440
       Plano, TX 75024
       * DELIVERED VIA E-MAIL *

       RE:      Court of Appeals Number:      05-14-00958-CV
                Trial Court Case Number:      CC-09-05232-A

       Style: In Re: VSDH Vaquero Venture, Ltd.


                Please find attached the opinion that issued in the above cause today.

                                              Respectfully,

                                              /s/ Lisa Matz, Clerk of the Court

       cc:     Dallas County Court Clerk, County Court At Law No. 1 (DELIVERED VIA E-MAIL)
               Justice Mary L. Murphy (DELIVERED VIA E-MAIL)
               D'Metria Benson (DELIVERED VIA E-MAIL)
TAB 21
                                                    CAUSE No. cc-09-05232-A

    VSDH VAQUERO VENTURE LTD,
                                                                      IN THE COUNTY COURT
                                                     Plaintiff(s),

    V.                                                                    ATLAWNO.l

    KEN GROSS, BETSY GROSS,
                                                                      DALLASCOUNTY,TEXAS
                                                   Defendant(s),


                                             ORDER VACATING ORAL RULING ON MOTION
                                                  TO DISQUALIFY EvAN L. SHAW


                On June 18, 2014, an oral ruling was made to disqualify attorney Evan L.
  Shaw from the above-styled case, specifically that Shaw "may stay on the case, but
  he may not make any presentations before the Court". The Court now VACA TES
  that oral ruling and enters this Order DENYING the Grosses' Motion to Disqualify
  Evan L. Shaw.


                IT IS ORDERED, ADJUDGED AND DECREED that the oral                     r~ling   made
  on June 18, 2014 on the Motion to Disqualify Evan L. Shaw is VACA TED.


                IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
  Motion to Disqualify Evan L. Shaw is DENIED.


                               Signed this ~y               of~~ 2014


  CC - 09 - 05232 - A
  MCMO
  UROER - MISCELLANEOUS
  6&1162


' 1111111111111111111111111111111111111111
TAB 22
                                                                                                                 FILED
                                                                                                  6/16/2015 9:21:42 AM
                                                                                                     JOHN F. WARREN
                                                                                                       COUNTY CLERK
                                                                                                      DALLAS COUNTY




                                  CAUSE NO. CC-09-0S232-A

VSDH VAQUERO VENTURE, LTD.                        §           IN THE COUNTY COURT
                                                  §
       Plaintiff/Counter-Defendant,               §
                                                  §
V.                                                §
                                                  §
KEN GROSS and BETSY GROSS                         §           AT LAW NUMBER 1
                                                  §
       Defendants/Counter-Plaintiffs,             §
                                                  §
V.                                                §
                                                  §
EVAN L. SHAW and DOUGLAS M.                       §
HICKOK                                            §
                                                  §
       Intervenors/Counter-Defendants.            §           DALLAS COUNTY, TEXAS

VAN SHAW'S MOTION TO WITHDRAW AND PLAINTIFF/COUNTER-DEFENDANT
       VSDH VAOUERO VENTURE, LTD.'S MOTION FOR MISTRIAL

TO THE HONORABLE JUDGE:

       Now come Plaintiff/Counter-Defendant VSDH Vaquero Venture, Ltd. ("VSDH") and its

counsel, Van Shaw, and file this Motion to Withdraw and Motion for Mistrial, and respectfully

shows as follows:

                                                  I.
                                  MOTION TO WITHDRAW

       Texas Rule of Professional Conduct 3.08(b) states as follows: "A lawyer shall not

continue as an advocate in a pending adjudicatory proceeding         if the lawyer believes that the
lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's

client, unless the client consents after full disclosure. "(emphasis added)



VAN SHAW'S MOTION TO WITHDRAW AND PLAINTIFF/COUNTER-DEFENDANT
VSDH VAQUERO VENTURE, LTD.'S MOTION FOR MISTRIAL                                             Page 1
MORP Pltf Mot2 Withdraw and Mot4 Mistrial




                                                                                                  1
       On June 15,2015, during the first day of trial in the above-styled matter, Van Shaw came

to believe that Van Shaw would be compelled to furnish testimony that will be substantially

adverse to his client. Counsel for Mr. and Mrs. Gross expressed his intention to call Mr. Shaw as

a witness at approximately 2:50 p.m. in chambers with the Court.          Immediately thereafter,

counsel for Defendant Mr. Hickock advised of his intent to call Mr. Shaw as a witness as well.

Immediately prior to counsel advising the intent to call Shaw as a witness, Doug Hickock (first

witness) was questioned by counsel for Grosses as to the "solvency of VSDH" and the matters

relating to the 'first breach' defense of VSDH. Defendant set up conflicting testimony by Van

Shaw that will advsersly impact VSDH - to that end:

       (a)     Hickock testified that Shaw was wrong to advise Grosses that VSDH was

       "insolvent". Shaw will now be required to testify as to why VSDH was insolvent, why

       the representation by the VSDH G.P. (Hickock) was wrong and that will substantially

       and adversely affect VSDH in that the same will be undermined as to credibility and its

       financial position will jeopardize its first breach defense. The evidence will prejudice its

       first breach defense.

       (b)     Hickock testified that Hickock "referred" all dealings with the Grosses to Shaw in

       dealing with the Gross' buy-back issue. Shaw will now be required to testify as to the

       same. Those facts are material and will substantially and adversely affect VSDH and the

       testimony by Van Shaw as to the first breach issues will prejudice VSDH.

       Pursuant to Texas Rule of Professional Conduct 3.08(b), Mr. Shaw is now required to

discontinue his representation of Plaintiff/Counter-Defendant VSDH.


VAN SUA W'S MOTION TO WITHDRAW AND PLAINTIFF/COUNTER-DEFENDANT
VSDH VAQUERO VENTURE, LTD. 'S MOTION FOR MISTRIAL                                          Page 2
MORP Pltf Mot2 Withdraw and Mot4 Mistrial




                                                                                                 2
         Therefore, Mr. Shaw respectfully requests that the Court GRANT Mr. Shaw's Motion to

Withdraw.

                                            II.
                                    MOTION FOR MISTRIAL

         As a result of Mr. Shaw's sudden requirement to discontinue his representation ofVSDH

after the start of trial in this matter, VSDH respectfully requests that the Court declare a mistrial

and re-set this matter for trial after a reasonable period of time to allow VSDH to retain new

counsel and prepare for trial.

         A mere continuance of the trial will not be sufficient, as a new jury should be selected.

         The current jury has already seen Mr. Shaw in action as counsel for VSDH. If this trial is

only continued, then this same jury will undoubtedly be very confused as to why the man the

jury thought was counsel for VSDH - Mr. Shaw - is no longer sitting at counsel's table in the

courtroom, but is now taking the stand and offering material factual testimony.

         Such confusion will greatly prejudice VSDH and cause irreparable harm to VSDH.

         Therefore, VSDH respectfully requests the court declare a mistrial, and re-set this matter

for trial.

         WHEREFORE,         PREMISES       CONSIDERED,        Plaintiff/Counter-Defendant     VSDH

Vaquero Venture, Ltd. and its counsel, Van Shaw, respectfully request that the Court DECLARE

a mistrial in this matter, GRANT Van Shaw's Motion to Withdraw, and re-set this matter for

hearing after a reasonable period of time to allow Plaintiff/Counter-Defendant VSDH Vaquero

Venture, Ltd. to obtain new counsel and prepare for trial, and grant Plaintiff/Counter-Defendant



VAN SUA W'S MOTION TO WITUDRA W AND PLAINTIFF/COUNTER-DEFENDANT
VSDH VAQUERO VENTURE, LTD.'S MOTION FOR MISTRIAL                                              Page 3
MORP PltfMot2 Withdraw and Mot4 Mistrial




                                                                                                     3
VSDH Vaquero Venture, Ltd. any and all further relief to which they may be entitled, both at

law and in equity.



                                            Respectfully submitted,

                                            lsi Van Shaw


                                            Evan Lane (Van) Shaw
                                            State Bar No. 18140500
                                            van@shawlaw.net
                                            Janet R. Randle
                                            State Bar No. 00792216
                                            janet@shawlaw.net
                                            Collen Meyer
                                            State Bar No. 24074709
                                            collen@shawlaw.net

                                            LAW OFFICES OF VAN SHAW
                                            2723 Fairmount Street
                                            Dallas, Texas 75201
                                            (214) 754-7110 telephone
                                            (214) 754-7115 facsimile

                                            ATTORNEYS FOR PLAINTIFF/COUNTER-
                                            DEFENDANT VSDH VAQUERO VENTURE,
                                            LTD.


                                CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of foregoing Motion has been served upon all
counsel of record pursuant to the Texas Rules of Civil Procedure on this 16th day of June, 2015.
                                              lsi Van Shaw

                                            Evan Lane (Van) Shaw




VAN SHAW'S MOTION TO WITHDRAW AND PLAINTIFF/COUNTER-DEFENDANT
VSDH VAQUERO VENTURE, LTD. 'S MOTION FOR MISTRIAL                                         Page 4
MORP Pltf Mot2 Withdraw and Mot4 Mistrial




                                                                                               4
TAB 23
                                                                                                              FILED
                                                                                               6/16/2015 8:46:59 AM
                                                                                                  JOHN F. WARREN
                                                                                                    COUNTY CLERK
                                                                                                   DALLAS COUNTY



                                 CAUSE NO. CC-09-05232-A

VSDH VAQUERO VENTURE, LTD.,                   §                     IN THE COUNTY COURT
     Plaintiffs/Counter-Defendant,            §
                                              §
v.                                            §
                                              §
KEN GROSS and BETSY GROSS                     §
    Defendants/Counter-Plaintiffs,            §                           AT LAW NUMBER 1
                                              §
v.                                            §
                                              §
EVAN L. SHAW and DOUGLAS M.                   §
HICKOK                                        §
     Intervenors/Counter-Defendants.          §                   DALLAS COUNTY, TEXAS
                                              §
                      KEN GROSS AND BETSY GROSS’ BRIEF ON VSDH’S
                                MOTION FOR MISTRIAL

TO THE HONORABLE JUDGE BENSON:

       COMES NOW, Kenneth P. Gross and Betsy L. Gross (hereinafter referred to as “the

Grosses”), and file this brief related to VSDH’s motion for mistrial and would respectfully show

the following:

                             ARGUMENT AND AUTHORITIES

       VSDH is attempting to use Texas Rule of Professional Conduct 3.08 as a tactical weapon

to avoid trial and subvert the purpose of rule 3.08. On December 6, 2013, three days before trial

of this matter, VSDH filed a motion for continuance asserting that continuance was necessary

because Shaw might be a fact witness in this case and rule 3.08 prohibited his participation as

counsel and a witness. The Court granted that motion. After months passed and Shaw did not

substitute new counsel for VSDH, the Grosses filed a motion to disqualify Shaw based upon his

representations contained in his motion for continuance. Shaw opposed the motion. The Court

granted the motion and Shaw sought relief from the order with the court of appeals. When Shaw


KEN AND BETSY GROSS’ BRIEF                                                                 Page 1
filed his mandamus, it made the parties miss another trial setting.           The court of appeals

conditionally granted the writ of mandamus because the record lacked evidence that Shaw’s

testimony would relate to an essential fact that would prejudice a party if Shaw served as both

witness and lawyer. (Memorandum Op. p. 4). Now, more than one and half years after initially

raising the issue, using the issue to get a continuance on two occasions, VSDH claims this trial

should be halted and Shaw permitted to withdraw. The motion should be denied and trial should

continue.

       Rule 3.08 provides:

       (a) A lawyer shall not accept or continue employment as an advocate before a tribunal in
       a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that
       the lawyer is or may be a witness necessary to establish an essential fact on behalf of the
       lawyer’s client, unless:

               (1) the testimony relates to an uncontested issue;

               (2) the testimony will relate solely to a matter of formality and there is no reason
       to believe that substantial evidence will be offered in opposition to the testimony;

               (3) the testimony relates to the nature and value of legal services rendered in the
       case;

               (4) the lawyer is a party to the action and is appearing pro se; or

                (5) the lawyer has promptly notified opposing counsel that the lawyer expects to
       testify in the matter and disqualification of the lawyer would work substantial hardship
       on the client.

       (b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if
       the lawyer believes that the lawyer will be compelled to furnish testimony that will be
       substantially adverse to the lawyer’s client, unless the client consents after full disclosure.
       First, the defense is an affirmative defense which must be pleaded.

       (c) Without the client’s informed consent, a lawyer may not act as advocate in an
       adjudicatory proceeding in which another lawyer in the lawyer’s firm is prohibited by
       paragraphs (a) or (b) from serving as advocate. If the lawyer to be called as a witness
       could not also serve as an advocate under this Rule, that lawyer shall not take an active
       role before the tribunal in the presentation of the matter.

KEN AND BETSY GROSS’ BRIEF                                                                     Page 2
       Comment 2 to the rule provides that “[o]ne important variable in this context is the

anticipated tenor of the lawyer’s testimony. If that testimony will be substantially adverse to the

client, paragraphs (b) and (c) provide the governing standard. In other situations, paragraphs (a)

and (c) control.” Comment 10 to the rule states that the rule should not be used as a tactical

weapon to deprive the opposing party of the right to be represented by the lawyer of his or her

choice because reducing the rule to such a use would subvert its purpose.

       In the present case, neither Hickok nor the Grosses have moved to disqualify Shaw under

rule 3.08. At most, Hickok has announced his intention to call Shaw as a witness. However,

“[a] mere announcement by an adversary of his intention to call opposing counsel as a witness is

insufficient to orchestrate counsel's disqualification.” Gilbert McClure Enterprises v. Burnett,

735 S.W.2d 309, 311 (Tex. App.—Dallas 1987, orig. proceeding).            “There must be [evidence

of] a genuine need for the attorney's testimony, which should be material to the movant's case as

well as prejudicial to the interests of the attorney's client before disqualification is required.” Id.

Shaw has not identified any evidence that he may provide which is material (in the sense of

rule3.08) to this case. Likewise, Hickok has not identified any evidence that will be sought from

Shaw that will be material. Furthermore, Shaw has not offered anything to show that any

testimony he will provide will be prejudicial to the interest of VSDH.

       The evidence admitted at trial shows that Hickok was the point person for VSDH in the

negotiation and consummation of the contract at issue in this case. Shaw did not become

involved until the Grosses exercised their buy-back option. For all of Shaw’s dealings with the

Grosses, there are emails which reflect those conversations. In fact, there is evidence of only one

substantive meeting with Shaw after the Grosses exercised their buy-back option.



KEN AND BETSY GROSS’ BRIEF                                                                      Page 3
       At this point, there is no evidence before the Court that any evidence which might be

sought from Shaw is material in the sense that it will have any bearing on the ultimate decisions

to be made by the jury. If Hickok wishes to call Shaw as a witness to set up a defense that is not

material, such a tactic is not prohibited by the rule. In addition, Shaw himself has not offered

any evidence to the Court about whether or why any testimony he might give would be

prejudicial to his client. As a result, the Court should deny the motion.

       WHEREFORE, PREMISES CONSIDERED, the Grosses respectfully request that

VSDH’s motion for mistrial be Denied and that they have and recover all other relief to which

they are entitled in law or equity.

                                                      Respectfully submitted,


                                                      /s/ Steven E. Aldous
                                                      Steven E. Aldous
                                                      State Bar No. 00982100
                                                      saldous@forsheyprostok.com
                                                      FORSHEY & PROSTOK, LLP
                                                      500 Crescent Court, Suite 240
                                                      Dallas, TX 75201
                                                      Ph. 214.716.2100
                                                      Fx. 817.877-4151

                                                      Attorney for Defendants/Counter Plaintiffs

                                  CERTIFICATE OF SERVICE

       The undersigned certifies that a true and correct copy of the foregoing instrument was
served upon all attorneys of record in accordance with Rule 21a of the Texas Rules of Civil
Procedure on the 16th day of June, 2015.

                                              /s/Steven E. Aldous___
                                              STEVEN E. ALDOUS




KEN AND BETSY GROSS’ BRIEF                                                                  Page 4
TAB 24
                                                              1



1                         REPORTER'S RECORD
                       VOLUME 2 OF 10 VOLUMES
2                      CAUSE NO. CC-09-05232-A

3    VSDH VAQUERO VENTURE, LTD.       )IN THE COUNTY COURT
                                      )
4      Plaintiff/Counter-Defendant, )
                                      )
5    V.                               )
                                      )
6    KEN GROSS and BETSY GROSS        )AT LAW NO. 1
                                      )
7      Defendants/Counter-Plaintiffs, )
                                      )
8    V.                               )
                                      )
9    EVAN L. SHAW and DOUGLAS M.      )
     HICKOK                           )
10                                    )
       Intervenors/Counter-Defendants,)DALLAS COUNTY, TEXAS
11
12
13   -------------------------------------------------------

14                       TRIAL ON THE MERITS
15   -------------------------------------------------------
16
17              On the 10th day of June 2015, the following

18   proceedings came on to be heard within the presence of

19   a jury in the above-entitled and -numbered cause before
20   the Honorable EMILY TOBOLOWSKY
                                  , sitting for the
21   Honorable D'METRIA BENSON
                             , held in Dallas, Dallas
22   County, Texas.
23              Proceedings reported by computerized stenotype
24   machine.    Reporter's Record produced by computer-aided
25   transcription.
                                                        2



1                         APPEARANCES:
2    MR. STEVEN E. ALDOUS
     SBN 00982100
3    Forshey Prostok, LLP
     500 Crescent Court
4    Suite 240
     Dallas, Texas 75201
5    (214)716-2100
     ATTORNEY FOR DEFENDANTS/COUNTER-PLAINTIFFS
6    KEN GROSS and BETSY GROSS
7       - AND -

8    MR. KENNETH B. CHAIKEN
     SBN 04057800
9    Chaiken & Chaiken, PC
     Legacy Town Center III
10   5801 Tennyson Parkway
     Suite 440
11   Plano, TX 75024
     (214)265-0250
12   ATTORNEY FOR INTERVENOR/COUNTER-DEFENDANT
     DOUGLAS M. HICKOK
13
        - AND -
14
     MR. EVAN LANE (VAN) SHAW
15   SBN 18140500
     MR. DANIEL K. HAGOOD
16   SBN 08698300
     Law Offices of Van Shaw
17   2723 Fairmount Street
     Dallas, Texas 75201
18   (214) 754-7110
     ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT
19   VSDH VAQUERO VENTURE, LTD;
     INTERVENOR, VAN SHAW; and
20   THIRD-PARTY DEFENDANTS
     VSDH VAQUERO HOMES, INC. AND
21   VSDH HOMES, INC.
22
     ALSO PRESENT:   Ms. Jane Fraser, Jury Consultant
23
24
25
                                                              3



1                            INDEX

2    JUNE 10, 2015                               PAGE   VOL.
3    PROCEEDINGS..............................     4      2
4    VOIR DIRE BY MR. ALDOUS...
                             ...............      13      2
5    VOIR DIRE BY MR. HAGOOD.............
                                       .....     75       2
6    VOIR DIRE BY MR. CHAIKEN
                            .................    85       2
7    STRIKES FOR HARDSHIPS.....
                             ...............     114      2
8    STRIKES FOR CAUSE.............
                                 ...........     138      2
9    SEAT THE JURY AND SWEAR IN THE JURY
                                      ......     148      2
10   END OF PROCEEDINGS....................... 151        2
11   REPORTER'S CERTIFICATE................... 152        2

12
13                    EXHIBIT INDEX (NONE)
14
15
16
17
18
19
20
21
22
23
24
25
                                                                4



1                           PROCEEDINGS
2                          June 10, 2015
3                  (Jury panel enters the courtroom)
4                  THE COURT: Please be seated.
5                  Good morning, ladies and gentlemen
                                                    . First
6    of all, I should tell you that I am not Judge D'Metria
7    Benson.   My name is Judge Emily Tobolowsky. And I'm the
8    judge of the 298th District Court. Unfortunately, Judge
9    Benson doesn't have a voice today.    She has a little bit
10   of laryngitis, and so I am pinch hitting as it were
11   during this jury selection time.
12                 I wanted to make sure that all of you have
13   had an opportunity to take the oath as potential jurors
14   downstairs.   Did anybody miss taking the oath?
15                 Okay. Those of you who missed taking the
16   oath, would you please raise your right hands?     Would
17   you raise your right hand?
18                 (Potential jurors sworn)
19                 THE COURT: Thank you.
20                 Mr. -- 29?
21                 VENIREPERSON VILLANUEVA:   I'm no --
22                 THE COURT: You don't speak English well?
23                 VENIREPERSON VILLANUEVA:   I don't
24   understand.
25                 THE COURT: Okay.     Can you read English?
                                                               5



1                 VENIREPERSON VILLANUEVA:     No.
2                 THE COURT: Can you write English?
3                 VENIREPERSON VILLANUEVA:     No.   I only
4    understand a little bit.
5                 THE COURT: Okay.      If you'll sit back
6    down, we'll -- we will deal with it.    We will talk to
7    you a little later.   Okay?
8                 VENIREPERSON VILLANUEVA:     Okay.
9                 VENIREPERSON CANTU:    I'm in the same
10   situation. I mean, I understand a little bit of
11   English, but I don't know I can write or --
12                THE COURT: Okay. We'll talk to you also.
13   That's Number 1 and Number 29; is that correct
                                                  ?
14                VENIREPERSON VILLANUEVA:     Yeah.
15                THE COURT: All right.     Counsel, if you
16   all will also make note of that.
17                Anybody else concerned about any ability
18   to read or write or understand English?
19                Yes, ma'am.
20                VENIREPERSON DIMEFF:    I have a minor --
21   like a hearing problem that I can't understand some
22   people's voices.   And I'm saying like the bottom third
23   of my hearing.
24                THE COURT: All right.     Well, we'll --
25   you'll hear the lawyers speak during this first portion
                                                               6



1    of the trial, and you'll need to let us know whether
2    you're having any difficulty as we proceed through the
3    morning.
4                  As I indicated to you, I am Judge
5    Tobolowsky. And, first of all, I know I speak on behalf
6    of Judge Benson when I thank you for answering your
7    summons for jury services and also for cooling your
8    heels this morning while we were getting you up here and
9    getting ready for you.   I've heard it said, though I'm
10   sure it's not true of any of you, that some people do
11   not do a happy dance when they get a summons for jury
12   service.
13                 And in all seriousness, I want to tell you
14   that I think you're going to have a very interesting
15   experience.   I want to remind you that we tend to take
16   trial by jury for granted in this country.   We grew up
17   with this, those of us who did grow up here; and we tend
18   to think of this as just -- you know, this is how it is.
19   This is how it is all over the world.   Well, it's not.
20   In fact, this is one of the relatively few countries
21   worldwide that has trial by jury and even fewer that
22   have trial by jury in civil cases.
23                 Because you are in this courthouse, you
24   will not be hearing a criminal case.    This will be a
25   civil case.   Nobody will be going to jail if you're
                                                              7



1    chosen to be a juror.   But I want to remind you that
2    this right to trial by jury is so important to our
3    democracy that it's in our constitution.   I mean, we
4    don't have a whole lot of things in our constitution,
5    but the right to trial by jury is in our constitution.
6                  So I trust and hope that you will give
7    this serious consideration; that you will listen
8    carefully; that you will answer the questions that the
9    lawyers ask you carefully and be reminded that this is a
10   great privilege, but also responsibility that you
11   undertake.
12                 We are here to choose a jury of six of
13   you.   And even if you're not chosen, we thank you for
14   being here.   Has everybody turned off all of their
15   telephones or other electronic devices?
16                 Thank you.
17                 While you're in the courtroom, you may not
18   communicate, even the lawyers may not communicate using
19   any electronic device or by telephone, text, email,
20   chatroom, blog, or social networking websites, such as
21   Facebook, Twitter, Instagram, Myspace, if it still
22   exists.   And do not record or photograph these
23   proceedings, as that also is prohibited by law.
24                 If you are chosen to serve on the jury,
25   your very important role will be to decide the factual
                                                                8



1    matters in this case.    The judge isn't empowered to
2    weigh the facts and to decide who they believe.   That's
3    your job, and the judge's job is just to make sure that
4    the case is tried in accordance with the law.
5                 This is a lawsuit that was brought by Ken
6    and Betsy Gross, and they are represented today by Steve
7    Aldous.
8                 Mr. Aldous, you may introduce yourself and
9    whomever else you'd like to introduce.
10                MR. ALDOUS: Thank you, Your Honor.
11                Here with me today is Jane Fraser and also
12   Sarah Irish over here.
13                THE COURT: Thank you, Mr. Aldous.
14                MR. ALDOUS: Thank you, Judge.
15                THE COURT: And the Grosses have brought
16   suit against VSDH Vaquero Venture, Ltd., and that entity
17   is represented by Van Shaw.
18                Mr. Shaw, you may stand and introduce
19   yourself and whomever else you'd like.
20                MR. SHAW: Thank you, Your Honor.
21                Good morning.    I'm Van, last name Shaw.
22   And I'm here today with Dan Hagood today. And I'm going
23   to be pinch lawyer.
24                MR. HAGOOD:    Good morning.
25                THE COURT: Thank you, Mr. Shaw.
                                                               9



1                 And the Grosses have also brought suit
2    against an individual named Douglas Hickok, and he is
3    represented today by Ken Chaiken.
4                 Mr. Chaiken, you may stand and introduce
5    yourself and anybody else you'd like.
6                 MR. CHAIKEN: Good morning.    My name is
7    Kenneth Chaiken. And it is my honor and privilege to
8    introduce to you my client, Mr. Douglas Hickok, who's
9    here today as well.
10                THE COURT: Thank you, Mr. Chaiken.
11                MR. CHAIKEN: Thank you, Judge.
12                THE COURT: There are some instructions
13   I'm about to give, and you need to abide by them during
14   jury selection.   And, please, listen very carefully.   If
15   you're chosen to serve on a jury, you're going to hear
16   some of them again.   But every juror must obey the
17   instructions. If you don't obey the instructions,you
18   could be called to testify about potential juror
19   misconduct, which then would mean we'd have to start
20   this process all over again.   And that wouldn't be fun
21   for the next group of people and it wouldn't be fun for
22   this group and their clients and it would be expensive
23   for the county. So please obey my instructions.
24                To avoid looking like you are friendly
25   with one side of the case, do not mingle or talk with
                                                               10



1    the lawyers, the witnesses, the parties, or anyone else
2    involved in the case.   Pardon me.   You may exchange
3    casual greetings like "hello" or "good morning."   Other
4    than that, do not talk about -- do not talk to them at
5    all.   They have to follow these same instructions, so
6    you'll understand it when they do.
7                  I apologize.   Anybody else suffering from
8    allergies this time of year?
9                  Do not accept any favors from the lawyers,
10   the witnesses, the parties, or anyone else involved in
11   the case and do not do any favors for them.   This could
12   be something as simple as giving somebody a ride or
13   giving them food.   Do not discuss the case with anyone,
14   not even your spouse, a friend, or anyone else,
15   including by either in person or by phone, by text, by
16   email, chatroom, blog, or social networking websites,
17   such as Facebook, Twitter, or Myspace.
18                 And do not allow anyone to discuss the
19   case with you or in your hearing.    If anyone tries to
20   discuss the case with you or in your hearing, please
21   tell me or a bailiff at once.   The reason for this is we
22   do not want you influenced by anything you hear that is
23   not evidence in this case.   So anything that should come
24   to you from outside of this courtroom is something we
25   don't want you influenced by.
                                                               11



1                  Right after I'm finished with these
2    instructions, the parties, through their attorneys, have
3    the right to ask you questions about your background,
4    experiences, and attitudes.   They are not trying to
5    meddle in your affairs,but they are trying to
6    thoroughly determine who could be a fair juror in a case
7    like this.   And you will hear the words perhaps "bias"
8    and "prejudiced" used. And we don't mean prejudiced in
9    some other manner in which you might think it applies.
10   But the lawyers in this first portion of the trial are
11   just trying to determine who can be fair.
12                 Now in the state of Texas, we call this
13   first portion of the trial voir dire.   If anyone speaks
14   French, you know that's terrible.   That's a Texanism of
15   a French phrase.   I'm fond of saying we're closer to
16   Paris, France --closer to Paris, Texas, than we are to
17   Paris, France.   Hence, the Texas version of voir dire.
18                 Please remember that you took an oath to
19   tell the truth, and so that oath means that if you're
20   answering questions that are asked to you by these
21   lawyers, you need to give a complete answer.   In that
22   connection, you all have numbers, and it is easier for
23   me and for the lawyers to see your numbers than it is to
24   figure out what number you are.
25                 So if you have an answer to a question, if
                                                              12



1    you would, pull up and keep holding up your number until
2    you've been acknowledged in some way.   And at the same
3    time, the lawyers probably will all ask questions of you
4    as a group and ask, you know, you to identify yourselves
5    if you want to speak in connection with a group
6    question.   So keep those numbers raised until you've
7    been acknowledged.
8                  But if there's a question that's asked
9    that you really don't want to talk about in front of
10   your new 29 best friends, if you would let us know, we
11   can arrange for you to speak privately in front of me
12   and in front of the lawyers in connection with your
13   answer.
14                 One other thing that I have failed to tell
15   you is that the trial for which we are picking a jury
16   today will not actually start until next Monday.   So
17   because next Monday at the courthouse is a non-jury
18   week, the lawyers are making this and the judge arranged
19   for you to be called down today to make other selections
20   of the jury today.   But the trial will not start until
21   next Monday at 9:30.
22                 I'm sure some of you are going to want to
23   talk to us about your availability, and you'll have an
24   opportunity to do that.   But I did want you to know that
25   when we are finished with this process, you will not be
                                                                 13



1    needed the rest of the week.     But you will be needed
2    beginning on Monday.
3                   Does anybody -- does everybody understand
4    these instructions?
5                   All right.    We're going to begin with voir
6    dire.   And, Mr. Aldous, you may proceed.
7                   MR. ALDOUS:   Thank you, Your Honor.
8                   Good morning everybody.   So the reality
9    is, I talk pretty loud, so you won't have any problems
10   hearing me.    But, occasionally, if you start to talk, I
11   may remind you -- bless you -- that the court reporter
12   up here is taking down what you have to say.     So I may
13   say, gee, what did you say and have you repeat.
14                  I always think it's kind of unfair when we
15   start up here asking you questions because, you know,
16   I've got your jury information cards, and y'all don't
17   know a hill of beans about me.     So I'm going to tell you
18   what my card would say, but I'm not going to give you my
19   middle name.
20                  Steve Aldous, 2525 Carlisle, Dallas,
21   75021. I've lived in Dallas County for over 20 years,
22   but I couldn't add it up.     And since I'm not really
23   getting paid, I don't donate. My date of birth is
24   8/27/62.   I see somebody 8/25/72.    I've got six kids.
25   I'm married.   It's a blended Brady Bunch thing.      And
                                                               14



1    I've never served on a jury.    I'm a lawyer obviously.
2    Forshey & Prostok is the name of my law firm.    My spouse
3    is employed by a place called Soft Surroundings out in
4    Southlake.   I've never been on a jury.   Nobody will ever
5    pick me, and I have been a party to a lawsuit.   So now
6    you know as much about me as I know about you.
7                   So part of this process is for us to get
8    to know you.   In order for us to get to know you, you've
9    kind of got to speak up.    So if I ask you a question,
10   it's not that I'm picking on you; I'm trying to find out
11   some things to see whether or not you'd be a good juror
12   for here, or maybethere's another case somewhere else
13   in the courthouse that you'd be a better juror in.
14                  So, first of all, let me just start off by
15   saying this is a breach of contract case concerning a
16   house.   All right.   So with that said, I'm going to give
17   you a list of names, and these people are either going
18   to be witnesses or they're going to be referred to in
19   the case.    And if you hear me call out the name, then
20   put your number up, if you don't mind.
21                  First, of course, you've got Dan Hagood
22   and Van Shaw who represent VSDH Joint Venture. Does
23   anybody know Dan or Van?
24                  All right.   Mr. Chaiken and his client,
25   Mr. Hickok, does anybody know those folks?
                                                                15



1                    And, as the Court told you, as the judge
2    told you, I represent Ken and Betsy Gross. I
3    specifically asked them not to be here this morning
4    because I don't want you holding back on what you have
5    to say just because my clients are here, and they may
6    not want to hear it.     So I asked them not to be here. So
7    does anybody know Ken and Betsy Gross?     They live out in
8    Coppell or Southlake.
9                    All right.   Does anybody know a lawyer who
10   may testify named Brent Cooper of Cooper & Scully?
11                   All right.   What about Paul Kramer, who's
12   a builder?   Does anybody know Roxann Taylor, who's a
13   real estate agent in the Southlake area?
14                   No?   You see I was looking at the real
15   estate agent.    See, like I said, there, Mrs. Dimeff --
16   no, Ms. Jackson.      Ms. Jackson, when I looked at you, it
17   was because you're the only person in real estate here.
18   So I knew partly you wouldn't want to put it on the
19   card, so I was wondering if you knew Ms. Taylor.     No?
20   Okay.
21                   So a lawyer named Hap Stern?   A fellow
22   that worked out at Vaquero, who's named John
23   Buttemiller, but I don't think he lives there anymore.
24   And then, finally, another lawyer named Mack Zimmerman,
25   anybody know him?
                                                                16



1                  Now I'm not saying all these people are
2    going to be witnesses. All I'm saying is that they may
3    be referred to in the case.
4                  All right.   So the other thing, too, is,
5    does anybody know anybody from -- connected with my law
6    firm that has an office in Fort Worth and Dallas,
7    Forshey & Prostok,a good Louisiana lawyer?
8                  All right. Great.    So does anybody here
9    watch, like, law shows on TV?     Oh, we've got a nodder
10   right here.   So, let's see.   Now, you're Ms. Pearson.
11   What show -- what's your favorite law show?
12                 VENIREPERSON PEARSON:    Law and Order.
13                 MR. ALDOUS: Law and Order, okay.     That's
14   the one where they say in the criminal justice system,
15   blah-blah-blah.
16                 And did anybody else -- oh, Ms. Watts,
17   what's your favorite.
18                 VENIREPERSON WATTS:    Criminal Minds.
19                 MR. ALDOUS: That's also a criminal show.
20   So all you folks that watch criminal shows, you know,
21   what is the burden of proof they always talk about?
22   Beyond a reasonable doubt
                             , right?
23                 All right.   We all know that.   We've heard
24   that on TV at times. There was only one person that I
25   saw on their information sheet who said that they were
                                                                 17



1    on a criminal jury, and I can't rememberwho it was.         If
2    you've ever served on a jury that was a criminal trial,
3    please raise your hand.   All right.    So Mr. Cirone,did
4    I say that correctly?
5                   VENIREPERSON CIRONE:    You said it right.
6                   MR. ALDOUS: All right. Before we get any
7    further, I have a question for you.     Were you really
8    born on 11/11/1911?
9                   VENIREPERSON CIRONE:    No.
10                  MR. ALDOUS: That would make you over 100
11   years old.    So I'm assuming that your information card
12   is not accurate; is that right?
13                  VENIREPERSON CIRONE:    Yeah, you're right
14   about that.
15                  MR. ALDOUS: Okay.   Good, because I was
16   going, wow, this would be the first. I've never had
17   somebody on the jury over 100 years old. No, but --
18                  (Venire panel laughing)
19                  MR. ALDOUS: I don't think I heard you.
20   That's selected deafness,you know, married a little
21   bit.   So you were on a criminaljury?
22                  VENIREPERSON CIRONE:    Yes.
23                  MR. ALDOUS: Do you recall how long ago it
24   was approximately?
25                  VENIREPERSON CIRONE:    About 15 years ago.
                                                                 18



1                  MR. ALDOUS: All right.     Did y'all
2    actually go to a verdict, render a verdict?
3                  VENIREPERSON CIRONE:    Yes.
4                  MR. ALDOUS: Do you remember the judge
5    telling you at that time you have to find that the
6    burden that the prosecutor has to find is beyond a
7    reasonable doubt
                    .   Do you remember that?
8                  VENIREPERSON CIRONE:    Yes, I do.
9                  MR. ALDOUS: Has anybody else served on a
10   criminal jury?   Well, the good thing about it is, forget
11   all that.   This is a civil case.    And because we aren't
12   talking about putting somebody in jail or we're not
13   talking about the power of the state to bring a case,
14   this has a different, what we call, burden of proof
                                                       .
15   And there's a -- the lawyers call it the burden of
16   persuasion is -- is what we talk about in a civil case.
17   And it's a preponderance of the evidence
                                           .
18                 Who knows what that means?     What it really
19   means is more likely true than not.    That's it.    It's
20   just more likelytrue than not.      It's whether or not you
21   tip the scale one way or the other.    It's okay in civil
22   cases to have all kinds of doubts as long as when you
23   weigh them out, you say it's more likely true than not.
24                 Now, some people say, "But I don't like
25   that.   That's too low."   So what I want to know is if
                                                                19



1    there's anybody here who has a feeling about that burden
2    of proof and say, you know what, I think that's just too
3    low?   How about you, Ms. Jackson?    You think it's okay.
4                  I noticed a couple of y'all have been
5    involved in civil suits, and I'm assuming that whoever
6    it was involved in a civil suit had a similar situation
7    where they recognized the burden of proof was lower than
8    a criminal case.   Did anybody have a bad experience in
9    regard to a case that they previously had?
10                 Okay.   Mr. Machen?
11                 VENIREPERSON MACHEN:    Machen.
12                 MR. ALDOUS: Go ahead and tell me what
13   you're thinking.
14                 VENIREPERSON MACHEN:    I was just wanting
15   clarification on that because I was involved in a civil
16   suit against our home builder.
17                 MR. ALDOUS: Okay.      So when you were
18   involved in a civil suit against your home builder, did
19   it go all the way to a jury trial?
20                 VENIREPERSON MACHEN:    No.    It went just in
21   front of the judge.
22                 MR. ALDOUS: All right.     And was there a
23   trial in front of the judge?
24                 VENIREPERSON MACHEN:    Yes.
25                 MR. ALDOUS: So what happens is, like in
                                                              20



1    your civil suit, people have to make judgment calls as
2    to who's telling the truth, who's not telling the truth,
3    and the burden is by a preponderance of the evidence
                                                       .
4    Did you have the same way in your trial?
5                 VENIREPERSON MACHEN:    Yes.
6                 MR. ALDOUS: You know, some people say,
7    oh, yeah, I hear preponderance of the evidence
                                                 , and it's
8    okay, and they've just really got to convince me.    And
9    that's really not what the law requires. And so if
10   anybody has any kind of -- what about you,Mr. Rodgers?
11   When you were playing for the Packers and y'all were
12   winning Super Bowls --
13                VENIREPERSON RODGERS:   That was the wrong
14   one.
15                MR. ALDOUS: Sorry about that.      But do you
16   have any problem applying that same kind of a standard,
17   you know, just making calls about who's more likely
18   right from wrong?
19                VENIREPERSON RODGERS:   No.
20                MR. ALDOUS: All right.    What about you,
21   sir, Mr. Kozak.
22                VENIREPERSON KOZAK:    Yes, sir.
23                MR. ALDOUS: Any problem with that?
24                VENIREPERSON KOZAK:    No, sir, not at all.
25                MR. ALDOUS: Okay.     And then, Mrs. Evans,
                                                               21



1    you were a party to a civil case it says, accordingto
2    your jury card, right?
3                   VENIREPERSON EVANS:    Yes.
4                   MR. ALDOUS: And is that the same kind of
5    way it was going with your case in terms of what -- did
6    you have to go to a trial?
7                   VENIREPERSON EVANS:    No.
8                   MR. ALDOUS: Okay. So if you settled, you
9    didn't really get that far, right?
10                  VENIREPERSON EVANS:    No.
11                  MR. ALDOUS: All right.       So -- and by the
12   way, Mrs. Dimeff
                    , did I say that right?
13                  VENIREPERSON DIMEFF:   Dimeff.
14                  MR. ALDOUS: Am I talking loud enough for
15   you?
16                  VENIREPERSON DIMEFF:   It's not the
17   loudness; it's the pitch.
18                  MR. ALDOUS: All right. How's my pitch?
19                  VENIREPERSON DIMEFF:   You're good.
20                  MR. ALDOUS: Mr. Berg, do you have any
21   problem with the way the civil system is set up?
22                  VENIREPERSON BERG:    No, sir.
23                  MR. ALDOUS: So, let me just ask if there
24   -- this way.   How many of you don't think it's fair if
25   for any reason that -- that it's so unfair that you
                                                                  22



1    couldn't follow the Court's instruction on what a
2    preponderance of the evidenceis and just say it's more
3    likely true than not?      Anybody?
4                    Boy, are y'all still -- does anybody like
5    some coffee or something, a Jolt Cola?
6                    All right.    So let's move on then.    So I'm
7    assuming that nobody here has any opinions about
8    lawsuits in general.      How about you, Number 12 juror,
9    Ms. Gonzales?
10                   VENIREPERSON GONZALES:     Honestly, I think
11   it just depends on what it is.        I mean, I think some are
12   good.   Some are not.
13                   MR. ALDOUS: All right.      Who feels like
14   Ms. Gonzales, you know,there's some that are probably
15   good, some that are probably bad?       Okay. We've got lots
16   of numbers holding up here. Has anybody had a
17   particular bad experience in the civil justice system
18   that would make it to where it's difficult for you to
19   sit on this jury?       That's just a broad question.
20   Nobody?
21                   Okay.    We're moving along.   We're just
22   doing really good.      These are my notes. Sorry.      So, if
23   you've been a plaintiff, that is a person bringing a
24   claim in a lawsuit, if you would, just raise your number
25   up.
                                                                23



1                 Okay. We've got Mrs. Evans.      Mrs. Evans is
2    Number 3.
3                 Anybody -- yes, Mr. Machen.
4                 All right.     Anybody else? Ms. Watts?
5                 MR. CHAIKEN: What numbers, please?
6                 MR. ALDOUS: Number 17.     Number 10 and
7    Number 17.
8                 Do you have a question, Ms. Watts?
9                 VENIREPERSON WATTS:    Well, we were in a
10   classified lawsuit thing.   I don't know if I should warn
11   you about that.
12                MR. ALDOUS: All right.     So if it is
13   something that you would like to talk about privately,
14   we can do that.
15                VENIREPERSON WATTS:    Okay.
16                MR. ALDOUS: All right.     So why don't we
17   just make a note of it.
18                THE COURT: And I'm sorry.       Is that 17?
19                MR. ALDOUS: Number 17, Your Honor.
20                THE COURT: Thank you.
21                MR. ALDOUS: Anyone else?       All right.   So
22   let me just ask you, Mrs. Evans, just generally, what
23   type of case it was.   Number 3.
24                VENIREPERSON EVANS:    Oh, what kind of case
25   it was?
                                                                 24



1                    MR. ALDOUS: Yes.      Was it a personal
2    injury or --
3                    VENIREPERSON EVANS:    It was a personal
4    injury.
5                    MR. ALDOUS: Okay.     And, Mr. Machen, what
6    type of case?    Was it against your builder?
7                    VENIREPERSON MACHEN:    Yes.
8                    MR. ALDOUS: And was that because you felt
9    like the builder didn't do what he said he was going to
10   do?
11                   VENIREPERSON MACHEN:    It was worse than
12   that.   But, yes, sir.
13                   MR. ALDOUS: That's a mild understatement
14   of what went on?
15                   VENIREPERSON MACHEN:    Right.
16                   MR. ALDOUS: All right. So, Mr. Machen,
17   if it doesn't -- I don't want to, you know, get into
18   your business too much.    But if you would, just tell us
19   what happened in your situation.
20                   VENIREPERSON MACHEN:    Well, we would pay
21   our -- write checks out to him, and he was not paying
22   his -- his people.    So at the time of closing, those
23   contractors put a lien on our house, and we had to fork
24   over a ton of money to get the lien off our house so we
25   could close.
                                                                   25



1                    MR. ALDOUS: I see.     How long ago was
2    this?
3                    VENIREPERSON MACHEN:    That was 2008, '09.
4                    MR. ALDOUS: Okay.     And how was it in
5    terms of the resolution?     Were you satisfied with it,
6    unsatisfied?
7                    VENIREPERSON MACHEN:    Well, we won.   But
8    he didn't show up for court, and we never were able to
9    collect.
10                   MR. ALDOUS: Anyone else on the second row
11   been a party to lawsuit that is either way of them --
12   Ms. Watts, we're going to talk to you later.
13                   Anyone?   And then anyone on the last row?
14                   Now I'm going to change the question just
15   a little bit.    I'm going to ask:     Has anybody who has a
16   family member or a very close friend who's been a party
17   to a lawsuit?    If you would, raise your hand.
18                   Let's see, Mrs. Ortiz; is that correct,
19   Number 18. And then we've gotMrs. Evans, Number 3.
20   We've got Mr. Cirone, Number 28.       Anyone else?   Oh,
21   Number 20, Mr. Pearle; is that right?
22                   All right.   Let me start with you,
23   Mrs. Evans.    Could you tell me what -- if a family
24   member or close friend has been a party to a lawsuit?
25                   VENIREPERSON EVANS:    Yes.
                                                                26



1                   MR. ALDOUS: Is it a different lawsuit
2    than the one you were talking about?
3                   VENIREPERSON EVANS:   Yes.
4                   MR. ALDOUS: Okay.     Can you just tell me a
5    little bit about it?
6                   VENIREPERSON EVANS:   Well, I'd rather not.
7    I'll talk to you in private
                              .
8                   MR. ALDOUS: All right.    You can talk to
9    us in private.
10                  Number 3, Your Honor.
11                  And then, Mrs. Ortiz, could you tell me a
12   little bit about it?
13                  VENIREPERSON ORTIZ:   Yes.   I mean, my dad
14   owned a company and he was the franchiser.     And one of
15   the franchisees left the company and started his own.
16   And he took all of his customers with him.     And so he
17   had to go sue him and, you know, so it was a big deal at
18   work.
19                  MR. ALDOUS: Where was that
20   geographically?
21                  VENIREPERSON ORTIZ:   It was -- I believe
22   it was in Pennsylvania, but he had lawyers here and up
23   there.
24                  MR. ALDOUS: And what type of business was
25   your dad in?
                                                               27



1                 VENIREPERSON ORTIZ:    Marble restoration.
2                 MR. ALDOUS: I'm sorry?
3                 VENIREPERSON ORTIZ:    Marble restoration
                                                          .
4                 MR. ALDOUS: Oh, okay.      Anything about
5    your service in that -- in that situation that might
6    cause you to go one way or the other before you ever
7    start in this case?
8                 VENIREPERSON ORTIZ:    No.
9                 MR. ALDOUS: Okay. Mr. Pearle, if you
10   don't mind, could you tell us a little bit about your
11   situation you were referring to when you raised your
12   card?
13                VENIREPERSON PEARLE:    Yeah.   It was -- it
14   was my ex-wife.   She's an interior designer, and it was
15   something that was less than $10,000.     And it was -- it
16   pretty much just went away.   We kind of got hosed.
17                MR. ALDOUS: All right.       So there was like
18   two things wrong with your answer. One, you started off
19   by saying, "my ex-wife."   And then at the end, you were
20   saying, "We got hosed."
21                VENIREPERSON PEARLE:    On both ends.
22                MR. ALDOUS: Anything about -- and you're
23   juror Number 20, right?    I'm just making sure.   So
24   anything about your experience in there that would keep
25   you from being a juror in this case?
                                                                28



1                    VENIREPERSON PEARLE:   No.
2                    MR. ALDOUS: And then on the back row I
3    had Mr. Cirone.
4                    VENIREPERSON CIRONE:   My dad owned a
5    grocery store on the corner of Luke andMcKinney Avenue
6    here in Dallas.    We've lived here all our lives. And
7    during a storm, heavy rain and wind, the roof fell out.
8    So we went to court to try to get the insurance company
9    to pay for it and they didn't do it.
10                   MR. ALDOUS: Is there anything about his
11   experience in that regard that would cause you to --
12                   VENIREPERSON CIRONE:   I'm a little bitter
13   because -- and they didn't pay a cent, and so wehad to
14   close his business up because of it.
15                   MR. ALDOUS: How long ago was that?
16                   VENIREPERSON CIRONE:   I guess I was in my
17   20s, so a long time ago, 40 years ago.
18                   MR. ALDOUS: If you were somehow reached
19   and asked to sit on this jury and the judge told you to
20   put all of that stuff aside, could you do that?
21                   VENIREPERSON CIRONE:   Considering he lost
22   his business over that, I kind of -- it still bothers me
23   a little bit.
24                   MR. ALDOUS: All right.   Thank you, sir.
25                   Now, Ms. Haggerty?
                                                                29



1                   VENIREPERSON HAGGERTY:   Yes.
2                   MR. ALDOUS: Have you been a -- you or a
3    family member or close friend been a party to a lawsuit
4    in your -- Number 27?
5                   VENIREPERSON HAGGERTY: Yes.
6                   MR. ALDOUS: You have?
7                   VENIREPERSON HAGGERTY:   I have.
8                   MR. ALDOUS: Do you -- would you mind
9    telling me what type of case it was.
10                  VENIREPERSON HAGGERTY:   My husband was in
11   an accident.
12                  MR. ALDOUS: Okay.
13                  VENIREPERSON HAGGERTY:   Just made a
14   settlement.
15                  MR. ALDOUS: I'm sorry?
16                  VENIREPERSON HAGGERTY:   We made a
17   settlement.
18                  MR. ALDOUS: Okay.
19                  VENIREPERSON HAGGERTY:   So we didn't get
20   to a jury or anything.
21                  MR. ALDOUS: Anything about your
22   experience that might keep you from being what I call
23   fair or impartial to both sides in this case?
24                  VENIREPERSON HAGGERTY:   Well, depending on
25   maybe the person's age, you know.   Like then, I was very
                                                                  30



1    young and I didn't get too much input on, you know, what
2    I should do or what shouldn't I do. So now, you know, I
3    think back then, you know, since I got older, I think I
4    was maybe shortchanged, you know.
5                    MR. ALDOUS: All right.    Thank you,
6    Ms. Haggerty.
7                    This case is going to have some issues in
8    it relating to contracts.      Does anybody here feel like
9    that they have any special expertise or knowledge about
10   just contracts in general?     If you do, just raise your
11   hand.
12                   Okay. Ms. Gonzales, Number 12?
13                   Anyone else?   Oh, we've got Ms. Doty.      Did
14   I say that right?
15                   VENIREPERSON DOTY:   You got it right
                                                         .
16                   MR. ALDOUS: Number 21.
17                   Mrs. Jackson, Number 5, real estate.
18                   Anyone else?
19                   Now, I will say this.   Everybody, all of
20   us make contracts, you know.     We might go to work and we
21   don't get paid until the end of the pay period.        We
22   expect to get paid.    That's really a contract.    But in
23   this situation, it's a -- there's some written
24   contracts.
25                   So let me ask you, Mrs. Gonzales.   Could
                                                                31



1    you tell us about your experience with contracts?
2                  VENIREPERSON GONZALES:   Well, I was
3    working at AT&T. I worked in the legal department.     And
4    the gentleman that I supported was -- that's what we
5    did.   We did contracts with various vendors, whether it
6    was Microsoft or Verizon or cable companies as to what
7    they could and could not do.
8                  MR. ALDOUS: Did you -- were you part of
9    the team that assisted in reviewing those types of
10   contracts?
11                 VENIREPERSON GONZALES:   Absolutely.
12                 MR. ALDOUS: All right.
13                 VENIREPERSON GONZALES:   I was the
14   assistant though.
15                 MR. ALDOUS: Did you -- were y'all
16   generally -- like, somebody would send you a contract
17   and then y'all would change it up a little bit, and add
18   some language to it?
19                 VENIREPERSON GONZALES:   We did both.   We
20   originated contracts and we did review contracts that
21   they originated.
22                 MR. ALDOUS: And when you say that they
23   were with all types of people, were they all types of
24   contracts, you know, like vendor contracts, software
25   contracts, all of that?
                                                               32



1                 VENIREPERSON GONZALES:   Yes.
2                 MR. ALDOUS: Okay.    So in this case, the
3    judge is going to instruct you,I believe, at the end of
4    the case to make a determination whether or not a
5    party's breached a contract or not.   Is there anything
6    about your experience that would keep you from following
7    the Court's instructions in this case?    Nothing?
8    Sometimes you've got to speak out.
9                 VENIREPERSON GONZALES:   Oh, no.
10                MR. ALDOUS: The court reporter is sitting
11   there going, nodding, and shaking her head.
12                VENIREPERSON GONZALES:   Sorry.
13                MR. ALDOUS: I'm sorry.      Who else?
14   Ms. Doty, what was your -- what is your experience with
15   regard to contracts?
16                VENIREPERSON DOTY:   Just with my job
                                                      .    I
17   work in advertising and I write the master service
18   agreements and -- with my -- or with our clients.
19                MR. ALDOUS: All right.      So, would you --
20   would you just say that almost all of what you're
21   working on with regard to contracts is related to
22   advertising services?
23                VENIREPERSON DOTY:   Yes.
24                MR. ALDOUS: Is there anything about that
25   experience that you believe might impact you in
                                                               33



1    reviewing contracts between these parties
                                             ?
2                  VENIREPERSON DOTY:   No.
3                  MR. ALDOUS:   No?
4                  VENIREPERSON DOTY:   No, not that I can
5    think of.
6                  MR. ALDOUS: Mrs. Jackson, Number 5.    And
7    were you referring to the fact that you're a real estate
8    agent?
9                  VENIREPERSON JACKSON:   Yeah.   I deal with
10   the -- you know, buying, selling of residences and
11   things that go along with the contract.
12                 MR. ALDOUS: And do you use the standard
13   form?
14                 VENIREPERSON JACKSON:   Yes.
15                 MR. ALDOUS: So this case is going to --
16   at least a portion of the contract is a standard real
17   estate form contractput out by the Texas --
18                 VENIREPERSON JACKSON:   Real Estate
19   Commission.
20                 MR. ALDOUS: -- Real Estate Commission.
21   There you go. During this process, there was some
22   changes to it.   But during this process, there is going
23   to be people who testify.   And I believe at the end of
24   the case, the judge is going to say you should really
25   make your decision based on what the evidence is in this
                                                                34



1    case rather than your own personal experiences.      Do you
2    think you're going to be able to do that?     Is that a,
3    "yes"?
4                   VENIREPERSON JACKSON: That is a, "yes
                                                        ."
5                   MR. ALDOUS: So, you know, I always do
6    that because of the court reporter.
7                   VENIREPERSON JACKSON:   I understand.
8                   MR. ALDOUS: Okay. Sorry.     Thank you for
9    your answer.
10                  Anybody else with the contracts?   Okay.
11   juror Number 17, Ms. Watts?
12                  VENIREPERSON WATTS:   I worked at -- I did
13   contracts for an apartment complex
                                      .
14                  MR. ALDOUS: All right.    Was it for, like,
15   leases?
16                  VENIREPERSON WATTS:   Yes.
17                  MR. ALDOUS: Okay.     Anything about that
18   experience that you can think of that would effect you
19   or keep you from being a fair juror in this case?
20                  VENIREPERSON WATTS:   Based on that
21   company, yes. I'm just going to be honest.
22                  MR. ALDOUS: Okay. Let me restate it.
23   Assuming that the company that you worked for isn't
24   involved in this case and has nothing to do withit,
25   will it effect you in this case?
                                                               35



1                 VENIREPERSON WATTS:   No.
2                 MR. ALDOUS: Okay.     Thank you.
3                 Anyone else?   What about other than
4    Mrs. Jackson, anybody else have any particular expertise
5    or any experience inreal estate?
6                 Nobody's raising their hand.      Nobody's
7    raising their hand.
8                 Mr. Villanueva?
9                 VENIREPERSON VILLANUEVA:    Right.
10                MR. ALDOUS: And there's two Villanuevas
                                                       ,
11   but I'm referring to juror Number 8, right?
12                VENIREPERSON VILLANUEVA:    Right.
13                MR. ALDOUS: You work for DART; is that
14   right?
15                VENIREPERSON VILLANUEVA:    Right.
16                MR. ALDOUS: And as a field supervisor, do
17   you have to deal with acquiring right-of-ways or
18   anything like that
                      ?
19                VENIREPERSON VILLANUEVA:    No.    My job is
20   basically contract compliance for theprovider of fair
21   transit services.   So I pretty much go out into the
22   field and make sure the drivers pick up our customers or
23   compliance with what they've agreed on, but it's --
24                MR. ALDOUS: Well, when you're doing that,
25   do you create your own checklist of the things they have
                                                                  36



1    to comply with based upon the contract, or do you get
2    that from someone else?
3                  VENIREPERSON VILLANUEVA:   I get that from
4    my employees I supervis
                           e.
5                  MR. ALDOUS: All right.     Thank you,
6    Mr. Villanueva.
7                  MR. ALDOUS: Yes, Number 20, Mr. Pearle?
8                  VENIREPERSON PEARLE:   You mentioned
9    right-of-ways.    I have a contract with some farmland
10   right now dealing with some pipeline right-of-ways. I
11   didn't know if that's relevant or not, but --
12                 MR. ALDOUS:   Well, it could be.      Butwho
13   do you work for, Mr. Pearle?
14                 VENIREPERSON PEARLE:   I don't work for
15   anybody right now.
16                 MR. ALDOUS: Well, when you say you were
17   working on the --
18                 VENIREPERSON PEARLE:   I have a farm and we
19   have -- an association would come in and wants to put a
20   pipe across our farm.   So it's an easement deal.
21                 MR. ALDOUS: I was asking Mr. Villanueva
22   about that.   But I don't think that an easement is
23   necessarily going to be involved.
24                 But has anybody had any experience with a
25   buyback provision in a real estate contract, meaning
                                                                  37



1    I'll buy this, but then after a certain period of time,
2    you may buy it back?     Anybody ever had that?   No one?
3                    Okay. Let me ask you this then.   Does
4    anybody have any experience as a title agent or with a
5    title company?    Okay, nobody.
6                    What about being in residential
7    construction?    Okay.   Let's see,Number 4, Mrs. Dimeff?
8                    VENIREPERSON DIMEFF:   I'm an interior
9    designer.   And when I lived in Ohio for 20 years, I
10   worked with contractors building houses, choosing
11   finishes and designing.
12                   MR. ALDOUS: What about working with the
13   actual contracts themselves?      You know, like a general
14   contractor might sign off and then give a list of
15   specifications that they say they won't comply with.         Do
16   you have any experience in that regard?
17                   VENIREPERSON DIMEFF:   A change order?
18                   MR. ALDOUS: It could be a change order or
19   it could be the original contract.
20                   VENIREPERSON DIMEFF:   A little bit.   You
21   know, if there's a change order, it's not charged.
22                   MR. ALDOUS: Could you tell me a little
23   bit more about your interior design work?
24                   VENIREPERSON DIMEFF:   Basically back then,
25   it was strictly residential.      I would be with the buyer
                                                              38



1    for like a year working -- helping build the home in
2    terms of choosing everything the buyer had to choose for
3    the house, whether it's the tile, the door knobs,
4    molding.   So I usually wouldwork with one client each
5    year, you know.
6                   MR. ALDOUS: Would you have a written
7    contract to do that work?
8                   VENIREPERSON DIMEFF:   I had my own
9    contract with my client.
10                  MR. ALDOUS: Okay. And then now do you
11   still do that work?
12                  VENIREPERSON DIMEFF:   I do more decorating
13   than designing, so not as much building.
14                  MR. ALDOUS: Okay.   I think I understand.
15   Let me -- is your spouse a physician?
16                  VENIREPERSON DIMEFF:   Yes.
17                  MR. ALDOUS: What type of physician is
18   your spouse?
19                  VENIREPERSON DIMEFF:   Sports medicine.
20                  MR. ALDOUS: And where does he work?
21                  VENIREPERSON DIMEFF:   UT Southwestern.
22                  MR. ALDOUS: Thank you.   Let's see.   Where
23   was I?   Oh, title companies.   And nobody else raised
24   their hands, right?
25                  Okay.   Let me ask you this. Does anybody
                                                              39



1    work or has worked as a financial planner or advisor,
2    CPA?   Nobody's raising their hand.    Okay, great.
3                  Now, who owns a business with three or
4    more employees, anybody?
5                  Mr. Pearle, Number 20.    Anyone else?
6                  All right.   So let me ask you a --
7    Mr. Pearle, tell me about your type of business.
8                  VENIREPERSON PEARLE:    I had a commercial
9    photography studio.   We had about five people working
10   for us. And then we had an art company that was kind of
11   part of it.
12                 MR. ALDOUS: So you said photography and
13   then art?
14                 VENIREPERSON PEARLE:    Yes.
15                 MR. ALDOUS: Okay.   I was just -- were you
16   able to catch that?
17                 And let's see.   How long did you have that
18   business?
19                 VENIREPERSON PEARLE:    About 20 years.
20                 MR. ALDOUS: When did you quit doing that
21   business?
22                 VENIREPERSON PEARLE:    I mean, I still do
23   it to some extent, but I kind of shut the studio down
24   around, oh, 2001 or '02.
25                 MR. ALDOUS: All right.     Thank you,
                                                                 40



1    Mr. Pearle. Go ahead.    Oh, I thought you were going to
2    say something.     I thought you were going to add
3    something to it.
4                    So, how many folks here said that they
5    were on the jury before?    Could you just raise your hand
6    again?   So Mr. -- Number -- let me put it by number.
7    Number 28, Number 12, any kind of jury, Mr. Palmer 23,
8    and is it Adeboye? Did I say that correctly?
9                    VENIREPERSON ADEBOYE:    Yes.
10                   MR. ALDOUS: Number 30.    Anyone else?
11                   For those of you that didserve on a jury,
12   were any of you the presiding juror?      That means the one
13   who's like -- has to answer the questions for the judge
14   and all that.    Anybody?
15                   VENIREPERSON GONZALES:   Is that like the
16   foreman?
17                   MR. ALDOUS: Yes.
18                   VENIREPERSON GONZALES:   Yes.
19                   MR. ALDOUS: You know, because we're all
20   correct now, it's not a foreman.    I'll have you know
21   that it's presiding juror.
22                   VENIREPERSON GONZALES:   Now you know how
23   long it's been.
24                   MR. ALDOUS: So, Ms. Gonzales, you were.
25                   VENIREPERSON GONZALES:   Yes.
                                                                   41



1                    MR. ALDOUS: And what type of case was it?
2                    VENIREPERSON GONZALES:      It was a breaking
3    and entering case.
4                    MR. ALDOUS: And were you able to reach a
5    verdict?
6                    VENIREPERSON GONZALES:      Yes.
7                    MR. ALDOUS: All right.       Anyone else,
8    presiding juror?    Nobody's raising their hand.
9                    All right.    So I've got some questions for
10   about a couple of you.       Mr. Machen?
11                   VENIREPERSON MACHEN:       Yes.
12                   MR. ALDOUS: Now you said on your juror
13   information card that while you and your spouse both
14   work at Southwest Airlines, she is a solutions
15   architect. Now I was thinking, well, that means she's
16   an architect.    But then I thought
                                       , well, maybe at
17   Southwest that means something else.
18                   VENIREPERSON MACHEN:       Well, we are both in
19   technology.   So she's an architect of the systems.
20                   MR. ALDOUS: Oh, okay.        Database
                                                         ?
21                   VENIREPERSON MACHEN:       Right, server,
22   databases, just networking.
23                   MR. ALDOUS: Is that what you do too?
24                   VENIREPERSON MACHEN:       No.    I'm a business
25   analyst.
                                                                  42



1                    MR. ALDOUS: Okay.
2                    VENIREPERSON MACHEN:    But I'm in
3    technology, so she would be part of my team if I was
4    like --
5                    MR. ALDOUS: Would you mind describing for
6    me what you do, what you work with?
7                    VENIREPERSON MACHEN:    So I'm in technology
8    and I work with our internal customers.      And I have
9    technology teams to develop requirements for internal
10   applications and requirements based off of our internal
11   customer's wants.    And those requirements are passed on
12   to the development team, and they take that and start
13   their software development processes.
14                   MR. ALDOUS: Thank you.
15                   Mr. Richie, you're from sales with Andrews
16   Distributing.
17                   VENIREPERSON RICHIE:    Right.
18                   MR. ALDOUS: Can you tell me what you do
19   or what type of sales?
20                   VENIREPERSON RICHIE:    (Inaudible).
21                   THE REPORTER:   I can't hear you.
22                   MR. ALDOUS: Here.      You know what? I've
23   got this thing.    So you get to be the first one.
24                   VENIREPERSON RICHIE:    All right.
25                   MR. ALDOUS: So if you would, we're doing
                                                                43



1    karaoke numbers.   Pick your own song.
2                  What were you saying now?
3                  VENIREPERSON RICHIE:    I distribute alcohol
4    for 7-11, RaceTrac, QuikTrip, your local convenience
5    stores around the Dallas/Fort Worth metroplex.
6                  MR. ALDOUS: Thank you.
7                  THE COURT: Courthouses?
8                  MR. ALDOUS: I don't know that song.
9                  Mr. Rodgers -- and forgive me.    What do
10   you do for a living?
11                 VENIREPERSON RODGERS:    I'm the training
12   manager at Equinox Health Club.
13                 MR. ALDOUS: Okay.     Do you float between
14   clubs or whatever?
15                 VENIREPERSON RODGERS:    I don't float, but
16   I've worked in Chicago, Miami, and now here.
17                 MR. ALDOUS: Okay.      Thank you
                                                  , sir.
18                 And Mrs. Evans, what were you doing --
19   what is your -- kind of your background in terms of
20   work?
21                 VENIREPERSON EVANS:    Okay.   I was working
22   for Citigroup, and I got hurt. I told you I got
23   injured.   It was my spine and I had my knee replacement
24   and put on disability.
25                 MR. ALDOUS: Okay.     And how long ago was
                                                              44



1    that?
2                 VENIREPERSON EVANS:    In 2005.
3                 MR. ALDOUS: All right.    Thank you.
4                 Mrs. Dimeff, how -- are you still doing
5    design?
6                 VENIREPERSON DIMEFF:   Yes.
7                 MR. ALDOUS: And forgive me.       You know, I
8    wanted to ask you this,but I didn't want to really
9    sound stupid. You said that you don't really do the
10   interior design much.   You do --
11                VENIREPERSON DIMEFF:   Decorating.
12                MR. ALDOUS: Decorating?
13                VENIREPERSON DIMEFF:   In Texas, you need a
14   special license to call yourself an interior designer,
15   and I don't have that. So when I moved here, my company
16   is my name Interiors, not interior designer.     So
17   officially I cannot be designing.
18                MR. ALDOUS: How long have you been in
19   Texas?
20                VENIREPERSON DIMEFF:   Five years.
21                MR. ALDOUS: And prior to that, you were
22   in Ohio?
23                VENIREPERSON DIMEFF:   Yes.
24                MR. ALDOUS: What part of Ohio?
25                VENIREPERSON DIMEFF:   Cleveland, Maple
                                                               45



1    Heights.
2                  MR. ALDOUS: Okay. And then, Mrs. Jackson,
3    your husband is a lawyer; is that right?
4                  VENIREPERSON JACKSON:   That's correct.
5                  MR. ALDOUS: I wanted to see if you would
6    admit it out loud.   And does your husband do this sort
7    of law where we're picking a jury and so forth?
8                  VENIREPERSON JACKSON:   He does family law
9    and so I assume he does.    I would imagine.
10                 MR. ALDOUS: Okay.     Now, so you go home
11   today and your husband says, hey, what did you do?      And
12   you go I had jury service.   And he goes, hey, tell me
13   about that.
14                 VENIREPERSON JACKSON:   I'll say, "no."
15                 MR. ALDOUS: It was a trick question.
16   You'll be able to, I assume, not have any problem
17   controlling your husband, right?
18                 VENIREPERSON JACKSON:   I won't. I will
19   not speak to him about it.
20                 MR. ALDOUS: All right.    Now, Mr. Lejia,
21   what do you do currently?
22                 VENIREPERSON LEJIA:   I work at a hotel as
23   a receptionist.
24                 MR. ALDOUS: That's right, at Hampton --
25                 VENIREPERSON LEJIA:   Hampton Inn.
                                                                 46



1                   MR. ALDOUS: Okay.     And, you know, I was
2    trying to -- I was trying to go through these
3    information cards real fast, and I don't do math well.
4    And so I was trying to add up everybody's age.     And the
5    only ones I got right were the ones that were close to
6    mine.    So how old are you?
7                   VENIREPERSON LEJIA:   Nineteen.
8                   MR. ALDOUS: Nineteen.    It's very -- it's
9    very problematic for those of us over 50 who couldn't
10   grow a beard like that even then.     I'm very upset.
11   Thank you, sir.
12                  And then, Ms. McCoy, are you -- I think
13   you said you were retired?
14                  VENIREPERSON MCCOY:   Not retired, but my
15   husband is deceased I said.
16                  MR. ALDOUS: What did your husband do
17   before he passed away?
18                  VENIREPERSON MCCOY:   He worked at saw
19   mills.
20                  MR. ALDOUS: Saw mills?
21                  VENIREPERSON MCCOY:   Yeah.
22                  MR. ALDOUS: How long have you lived in
23   the Dallas area?
24                  VENIREPERSON MCCOY:   This year, maybe 15
25   years.
                                                                47



1                 MR. ALDOUS: Fifteen years.     Where -- are
2    you from Louisiana originally?
3                 VENIREPERSON MCCOY:   Louisiana.
4                 MR. ALDOUS: What part of Louisiana?
5                 VENIREPERSON MCCOY:   Winnfield. I don't
6    know if you-all know where it is.It's about a
7    four-hour drive from here.
8                 MR. ALDOUS: Thank you, ma'am.
9                 And then, Mr. Villanueva, how long have
10   you been a field supervisor at DART?
11                VENIREPERSON VILLANUEVA:    About three
12   years.
13                MR. ALDOUS: Three years.     And you seem
14   like a very young guy.   I didn't add it up. How old are
15   you?
16                VENIREPERSON VILLANUEVA:    Thirty-nine.
17                MR. ALDOUS: That's just unfair.      You look
18   younger than that, but that's a compliment.     So, thank
19   you, sir.
20                Ms. Pearson, what is it -- what is your
21   field of work?
22                VENIREPERSON PEARSON:     I'm a sales
23   associate at Carter's Children's clothing store.
24                MR. ALDOUS: Where is that store?
25                VENIREPERSON PEARSON:     I work at the one
                                                                48



1    over at Firewheel in Garland
                               .
2                  MR. ALDOUS: Firewheel.    How long have you
3    been there?
4                  VENIREPERSON PEARSON:    I just started in
5    February.
6                  MR. ALDOUS: Okay.     And, Ms. Gonzales, are
7    you still with AT&T?
8                  VENIREPERSON GONZALES:   No, I retired
9    December 21st.
10                 MR. ALDOUS: Congratulations.      And I know
11   better than to ask their age.
12                 VENIREPERSON GONZALES: Because I'm older
13   than you.
14                 MR. ALDOUS: Mr. Kozak, it says here that
15   you work for Walmart.
16                 VENIREPERSON KOZAK:   Yes, sir.
17                 MR. ALDOUS: How long have you worked
18   there?
19                 VENIREPERSON KOZAK:   A year and a half.
20                 MR. ALDOUS: All right.    And are you --
21   did you go to high school here in Dallas?
22                 VENIREPERSON KOZAK:   Mesquite.
23                 MR. ALDOUS: Mesquite, I say here in the
24   Dallas area. And I know that you're not very old.
25   Nineteen?
                                                                 49



1                    VENIREPERSON KOZAK:    No.
2                    MR. ALDOUS: Twenty-one?
3                    VENIREPERSON KOZAK:    Twenty.
4                    MR. ALDOUS: Twenty, split the difference.
5    Thank you, sir.
6                    VENIREPERSON KOZAK:    You're welcome.
7                    MR. ALDOUS: Mrs. George, it says here on
8    your information card that you were on a civil jury.
9    Did you serve on a civil jury before?
10                   VENIREPERSON GEORGE:   No.
11                   MR. ALDOUS: Okay.     Just sometimes they
12   don't transcribe it right.    And then it says also that
13   your husband is a -- is an evangelist?
14                   VENIREPERSON GEORGE:   Yes.
15                   MR. ALDOUS: Now, what type of -- what
16   religion?
17                   VENIREPERSON GEORGE:   Christian.
18                   MR. ALDOUS: I mean, any particular group
19   or denomination?
20                   VENIREPERSON GEORGE:   Pentecostal.
21                   MR. ALDOUS: Okay.     Thank you.
22                   Mr. Berg, what do you do for fun, actually
23   for a living?
24                   VENIREPERSON BERG:    For a living, I'm a
25   public works superintendent for thecity.
                                                              50



1                 MR. ALDOUS: Is it Red Oak?
2                 VENIREPERSON BERG:   Yes, sir.
3                 MR. ALDOUS: Okay.    I did remember that.
4    How long have you been doing that?
5                 VENIREPERSON BERG:   That particular job,
6    about six years.
7                 MR. ALDOUS: All right. Thank you, sir.
8                 Now, Mr. Maguire?
9                 VENIREPERSON MAGUIRE:   Yes.
10                MR. ALDOUS: So what does it mean to be a
11   research analyst?
12                VENIREPERSON MAGUIRE:   It's a C-Suite
13   recruiting for a big -- big companies.   So we -- they
14   ask us, hey, we need a new chief marketing officerand
15   we go find those people.   And I do like all the internal
16   stuff.
17                MR. ALDOUS: So you're a recruiter?
18                VENIREPERSON MAGUIRE:   Yes.
19                MR. ALDOUS: Did you say C-Sweep?
20                VENIREPERSON MAGUIRE:   Yeah, C-Suite.
21                MR. ALDOUS: Oh, C-Suite.    A lot of rock
22   and roll when I was ayoung guy, and I can't hear very
23   well. So when you say "C-Suite," what does that mean to
24   you?
25                VENIREPERSON MAGUIRE:   That's just the top
                                                              51



1    decision makers of the company.
2                 MR. ALDOUS: How long have you been doing
3    that?
4                 VENIREPERSON MAGUIRE:   Eight months.
5                 MR. ALDOUS: Eight months.       And where did
6    you go to school
                    ?
7                 VENIREPERSON MAGUIRE:   SMU.
8                 MR. ALDOUS: Are you originally from
9    Dallas?
10                VENIREPERSON MAGUIRE:   Chicago.
11                MR. ALDOUS: Okay.     Is it warmer here than
12   Chicago?
13                VENIREPERSON MAGUIRE:   Sure.
14                MR. ALDOUS: And, Ms. Watts, I think we
15   already talked to you.   Well, what did you do for your
16   work?
17                VENIREPERSON WATTS:   I was an assistant
18   property manager
                    .
19                MR. ALDOUS: That's right, withthe
20   apartment complex that will remain unnamed?
21                VENIREPERSON WATTS:   Yes.
22                MR. ALDOUS: Okay.     Thank you, ma'am.
23                Mrs. Ortiz, you work for Pfizer in sales?
24   Are you assigned a particular medication?
25                VENIREPERSON ORTIZ:   Uh-huh.
                                                              52



1                 MR. ALDOUS: Is that a, "yes"?
2                 VENIREPERSON ORTIZ:   Yes.
3                 MR. ALDOUS: Okay. And how long have you
4    worked for Pfizer?
5                 VENIREPERSON ORTIZ:   For 14 years.
6                 MR. ALDOUS: What medications are you
7    assigned?
8                 VENIREPERSON ORTIZ:   Lyrica and Embeda and
9    Flector Patch.
10                MR. ALDOUS: And what?
11                VENIREPERSON ORTIZ:   Flector Patch.
12                MR. ALDOUS: Okay. Thank you.     And your
13   husband's a recruiter?
14                VENIREPERSON ORTIZ:   Yes, he is.
15                MR. ALDOUS: What type of recruiter?
16                VENIREPERSON ORTIZ:   IT.
17                MR. ALDOUS: Does he work for a company
18   here in town or is he independent?
19                VENIREPERSON ORTIZ:   In town.
20                MR. ALDOUS: Who does he work for?
21                VENIREPERSON ORTIZ:   Prestige Staffing.
22                MR. ALDOUS: Okay. Thank you.
23                Mr. Ramirez, I wrote down here that you
24   work at Bluebonnet Healthcare?
25                VENIREPERSON RAMIREZ:   I work in the
                                                             53



1    office.
2                 MR. ALDOUS: Sir, could you just tell us a
3    little bit about your job so that -- because I'm not
4    sure what that means?
5                 VENIREPERSON RAMIREZ:   We get referrals
6    from doctors and hospitals and verify insurance.   If
7    everything verifies, we take the patient. The nurse
8    goes in and sees the patient, does an evaluation, and
9    then some come in end of life and we take them hospice.
10                MR. ALDOUS: And how long have you been
11   with them?
12                VENIREPERSON RAMIREZ:   Four years.
13                MR. ALDOUS: Are you originally from
14   Dallas?
15                VENIREPERSON RAMIREZ:   No.
16                MR. ALDOUS: Where are you originally
17   from?
18                VENIREPERSON RAMIREZ:   Odessa.
19                MR. ALDOUS: Odessa? Do you hate Midland
20   High?
21                VENIREPERSON RAMIREZ:   Lee.
22                MR. ALDOUS: Lee, I'm sorry.    See, you
23   knew which one to hate.
24                Mr. Pearle, are you farming right now?
25                VENIREPERSON PEARLE:    I have it leased
                                                                   54



1    out.
2                    MR. ALDOUS: You have it leased out.     So
3    somebody else is cultivating whatever you've got?
4                    VENIREPERSON PEARLE:   Yes.
5                    MR. ALDOUS: All right.      Thank you, sir.
6                    Ms. Doty, we talked earlier about you
7    doing advertising andcontracts. But I didn't really
8    ask you what you do in advertising.
9                    VENIREPERSON DOTY:   I'm an account
10   manager, so I work on four different accounts.       And I do
11   the planning and strategy and manage the daily
12   execution.
13                   MR. ALDOUS: Okay.    So you have particular
14   people that you help them do their advertising stuff?
15                   VENIREPERSON DOTY:   Yes.
16                   MR. ALDOUS: Thank you.
17                   And then, Mr. Pina
                                      ?
18                   VENIREPERSON PINA:   Yes, sir.
19                   MR. ALDOUS: It says here that you're a
20   truck driver.    Are you independent or are you --
21                   VENIREPERSON PINA:   I currently work for a
22   company.
23                   MR. ALDOUS: So if you were asked to serve
24   on a jury, it would be -- let me say it differently. I
25   know independent truck drivers, they don't make money if
                                                              55



1    they're not driving. Is that the same way with you?
2                 VENIREPERSON PINA:   Yes, sir.
3                 MR. ALDOUS: It is the same way?
4                 VENIREPERSON PINA:   Yes, sir.
5                 MR. ALDOUS: All right.   I'll ask about
6    this in a minute.
7                 Okay.   Mr. Palmer, you're a professor of
8    some sort of medicine at UT Southwestern?
9                 VENIREPERSON PALMER:   I'm an nephrologist.
10                MR. ALDOUS: How long have you been with
11   UT?
12                VENIREPERSON PALMER:   About 30 years.
13                MR. ALDOUS: Thirty years.      I notice that
14   you recently got married?
15                VENIREPERSON PALMER:   Remarried, yes.
16                MR. ALDOUS: Remarried.   And she lives
17   somewhere at Cedars Siani?
18                VENIREPERSON PALMER:   Yes.    She was at UT
19   Southwestern but was recruited and is now at Cedars
20   Siani.
21                MR. ALDOUS: So how does that work out
22   long distance?
23                VENIREPERSON PALMER:   We're trying to make
24   it work.
25                MR. ALDOUS: I imagine that's tough
                                                   . And
                                                               56



1    that's in Los Angeles, right?
2                    VENIREPERSON PALMER:   Beverly Hills.
3                    MR. ALDOUS: Thank you, Mr. Palmer.
4                    Ms. Ellender?
5                    VENIREPERSON ELLENDER:   Uh-huh.
6                    MR. ALDOUS: It says here that you're a
7    programmer.
8                    VENIREPERSON ELLENDER:   Uh-huh.
9                    MR. ALDOUS: Is that a, "yes"?
10                   VENIREPERSON ELLENDER:   Yes.
11                   MR. ALDOUS: How long have you been a
12   programmer?
13                   VENIREPERSON ELLENDER:   Twenty-five years.
14                   MR. ALDOUS: Twenty-five years.     I've
15   always admired programmers because to me it's kind of
16   like voodoo.    You put the lines together and it comes
17   into the computer and it works.    Who do you currently
18   work for?
19                   VENIREPERSON ELLENDER:   DISD.
20                   MR. ALDOUS: Thank you, ma'am.
21                   Mrs. Duffey, Number 25, I have to get back
22   there to you.    You're kind of hiding behind somebody
23   over there.    What do you do for a living?
24                   VENIREPERSON DUFFEY:   I'm retired.   I was
25   a Texas Instruments employee in process control.
                                                               57



1                  MR. ALDOUS: Oh, great. And
2    congratulations on being retired.   Thank you.
3                  And then, Mr. Perez, it says here that you
4    do dispatch at AT&T, is it?
5                  VENIREPERSON PEREZ:   Time Warner right
6    now.
7                  MR. ALDOUS: Time Warner?
8                  VENIREPERSON PEREZ:   Yes, sir.
9                  MR. ALDOUS: So I'm going to try to get
10   you to speak up a little bit.   Tell me what you do as a
11   dispatcher.
12                 VENIREPERSON PEREZ:   Currently I'm -- like
13   you said, I'm a dispatcher.   I drive the tanks and help
14   them with their issues and that's pretty much it right
15   now.
16                 MR. ALDOUS: All right.     Thank you.
17                 Mrs. Haggerty, I don't remember.   Did I
18   ask you what you do?
19                 VENIREPERSON HAGGERTY:   No, you did not.
20                 MR. ALDOUS: What do you do?
21                 VENIREPERSON HAGGERTY:   Customer service.
22                 MR. ALDOUS: Did you work at Neiman
23   Marcus?
24                 VENIREPERSON HAGGERTY:   I do work at
25   Neiman Marcus.
                                                              58



1                   MR. ALDOUS: You do work at Neiman Marcus.
2    I knew my memory was in there somewhere.     And when you
3    say customer service, is that any particular department?
4                   VENIREPERSON HAGGERTY:   Well, it's --
5    right now it's all in one.   Inbound calls come in and we
6    take the calls from the stores or whatever.
7                   MR. ALDOUS: Okay.   Thank you, ma'am.
8                   Mr. Cirone?
9                   VENIREPERSON CIRONE:   Yes.
10                  MR. ALDOUS: In addition to being over 100
11   years old --
12                  VENIREPERSON CIRONE:   Tough life.
13                  MR. ALDOUS: -- you do medical sonograms?
14                  VENIREPERSON CIRONE:   Yes.
15                  MR. ALDOUS: At Doctors Hospital; is that
16   right?
17                  VENIREPERSON CIRONE:   Yes.
18                  MR. ALDOUS: Now, how long have you been
19   doing that?
20                  VENIREPERSON CIRONE:   Forty-two years.
21                  MR. ALDOUS: Do you have to have a license
22   for this?
23                  VENIREPERSON CIRONE:   Yes.   You have to be
24   registered with the state and keep it current
                                                 .
25                  MR. ALDOUS: So you have continuing
                                                               59



1    education and all that?
2                  VENIREPERSON CIRONE:    Yes.
3                  MR. ALDOUS: Thank you, sir.
4                  Mr. Villanueva, Number 29, you indicated
5    to the judge that you have difficulty with English?
6                  VENIREPERSON VILLANUEVA:   I understand a
7    little bit.   I'm working forklift driver for a company
8    four or five years.
9                  MR. ALDOUS: We'll talk to you with the
10   judge because I'm sure that we're going to call you up
11   later.
12                 And, Mr. Adeboye,you work in sales at
13   Home Depot?
14                 VENIREPERSON ADEBOYE:   Yes, sir.
15                 MR. ALDOUS:    How long have you been doing
16   that?
17                 VENIREPERSON ADEBOYE:   Fourteen years.
18                 MR. ALDOUS: And were you a party to a
19   civil lawsuit?
20                 VENIREPERSON ADEBOYE:   Yes.
21                 MR. ALDOUS: Do you recall what --
22                 VENIREPERSON ADEBOYE:   I served on a jury.
23   I served on a jury
                      .
24                 MR. ALDOUS: Oh, you served on a jury.
25   You were part of the jury?
                                                             60



1                 VENIREPERSON ADEBOYE:   Yes.
2                 MR. ALDOUS: How long ago was that?
3                 VENIREPERSON ADEBOYE:   Three years.
4                 MR. ALDOUS: Three years ago.
5                 VENIREPERSON ADEBOYE:   Yes.
6                 MR. ALDOUS: All right.   Thank you, sir.
7                 So, Mrs. Jackson, have you -- in
8    conjunction with your real estate business, have you
9    ever had people who have not followed through with their
10   contracts that they agreed on?
11                VENIREPERSON JACKSON:   I mean, there is a
12   clause where you can terminate during an option period,
13   which is -- you know, there's an option to terminate in
14   ten days.
15                MR. ALDOUS: Right.
16                VENIREPERSON JACKSON:   They terminated
17   them, but I've never had anybody blatantly breach their
18   sales contract.
19                MR. ALDOUS: Okay.    I'm assuming that
20   you've had plentyof experience with closing?
21                VENIREPERSON JACKSON:   Uh-huh.
22                MR. ALDOUS: Is that a, "yes"?
23                VENIREPERSON JACKSON:   Yes.
24                MR. ALDOUS: So what is your experience --
25   I mean, whether or not closing happens all at the same
                                                               61



1    time; in other words, all the people come in at the same
2    time?
3                  VENIREPERSON JACKSON:   No, no.
4                  MR. ALDOUS: How does it happen now in
5    your experience?
6                  VENIREPERSON JACKSON:   Well, I mean, I've
7    had where the sellers have signed the papersand
8    basically closed first, and where the buyers closed
9    first.   I've had it where it's happened in a couple of
10   days before the other party has closed, or they could be
11   out of town, you know, and we have to have out-of-town
12   closing, something like that.
13                 MR. ALDOUS: Have you ever hada situation
14   where -- well, in your experience, who made sure that
15   everybody signs the right thing and does the right thing
16   in order for the deal to be done?
17                 VENIREPERSON JACKSON:   Are you talking
18   about at the closing table?
19                 MR. ALDOUS: Yes.
20                 VENIREPERSON JACKSON:   There's an escrow
21   officer there at the table that will go through the
22   paperwork and answer questions, if either party has
23   questions about any of the paperwork.
24                 MR. ALDOUS: Is that usually somebody who
25   works for the title company
                              ?
                                                                 62



1                    VENIREPERSON JACKSON:   The title company.
2    You know, if my client has a question that I can answer
3    real estate wise, then I will do it.
4                    MR. ALDOUS: Then you would be involved in
5    that?
6                    VENIREPERSON JACKSON:   Uh-huh.
7                    MR. ALDOUS: Do you usually attend the
8    closing?
9                    VENIREPERSON JACKSON:   Yes, unless they're
10   out of state.
11                   MR. ALDOUS: Do you do closing now by
12   electronic signature, you know, where you --
13                   VENIREPERSON JACKSON:   No.
14                   MR. ALDOUS: I wondered if they'd gotten
15   there.
16                   VENIREPERSON JACKSON:   I have not -- not
17   electronically, no.    There's always been somebody there
18   to sign.
19                   MR. ALDOUS: Do you ever have a situation
20   where you may represent an individual, but there's a
21   company on the other side, like the seller or builder or
22   something?
23                   VENIREPERSON JACKSON:   I have done it
24   where it's an investor that has purchased a home and so
25   it's basically his own company to flip the home.     He
                                                                63



1    owns it, the company.    But, you know, if that's what you
2    mean.     Yeah, for an investor.
3                    MR. ALDOUS: So some of your clients are
4    investors?
5                    VENIREPERSON JACKSON:   Uh-huh.
6                    MR. ALDOUS: I watch HGTV a lot about
7    that. In any event, flip or flop, you know.
8                    VENIREPERSON JACKSON:   Right, right.
9                    MR. ALDOUS: Is that what you're kind of
10   talking about?
11                   VENIREPERSON JACKSON:   Uh-huh.
12                   MR. ALDOUS: Okay. I'm going to ask you
13   kind of a question.    And instead of saying -- you know,
14   giving an explanation for your answer, I'm going to see
15   if I can get you to say just "yes" or "no."       And that's
16   just because this is the way -- then we can talk about
17   it later.    But see if you can say "yes" or "no."
18                   If someone was seriously harmed in a
19   business deal that they think went bad, would you bring
20   a case?    Juror Number 1?
21                   VENIREPERSON CANTU:   No.
22                   MR. ALDOUS: Why is that?
23                   VENIREPERSON CANTU:   I mean, really I say
24   "no" because it's like -- I don't know what the question
25   -- I mean, some words I don't understand.     And one word
                                                                64



1    for me can change everything.   And I told you earlier I
2    don't know enough English to speak English. With one
3    word can change everything, and I don't want to give you
4    the wrong answer.
5                   MR. ALDOUS: You're absolutely right,
6    Mr. Cantu. We'll talk about that later.       All right?
7                   What about you, Mr. Rodgers?     Did you hear
8    me?
9                   VENIREPERSON RODGERS:   Yes.
10                  MR. ALDOUS: If you or a loved one were
11   seriously harmed in a business dispute, would you file a
12   lawsuit?
13                  VENIREPERSON RODGERS:   In a business
14   dispute?
15                  MR. ALDOUS: Yes, sir.
16                  VENIREPERSON RODGERS:   I suppose I would.
17   yes.
18                  MR. ALDOUS: What about you, Mrs. Evans,
19   juror Number 3?
20                  VENIREPERSON EVANS:    Uh-huh.
21                  MR. ALDOUS: And what about you,
22   Mrs. Dimeff?
23                  VENIREPERSON DIMEFF:    Yes.
24                  MR. ALDOUS: What about you, Mrs. Jackson?
25                  VENIREPERSON JACKSON:   Yes.
                                                             65



1                 MR. ALDOUS: What about you, Mr. Leija?
2    Did I say that right?
3                 VENIREPERSON LEIJA:    Yes.
4                 MR. ALDOUS: Sorry.
5                 Mrs. McCoy?
6                 VENIREPERSON MCCOY:    Would you repeat
7    that?
8                 MR. ALDOUS: Sure.     If you or a loved one
9    was seriously injuredor harmed in a business dispute,
10   would you file a lawsuit?
11                VENIREPERSON MCCOY:    (Inaudible).
12                MR. ALDOUS: She said, "yes." And I was
13   saying that so that she could hear you, the court
14   reporter.
15                Isn't that right, Mrs. McCoy? Is that a
16   "yes"?
17                VENIREPERSON MCCOY:    Yes.
18                MR. ALDOUS: Thank you.
19                Mr. Villanueva?
20                VENIREPERSON VILLANUEVA:      Yeah.
21                MR. ALDOUS: What about you, Mrs. Pearson?
22                VENIREPERSON PEARSON:   Yes.
23                MR. ALDOUS: What about you, Mr. Machen?
24                VENIREPERSON MACHEN:    I've done that.
25   Yes.
                                                               66



1                  MR. ALDOUS: Thank you, sir.
2                  Mr. Richie?
3                  VENIREPERSON RICHIE:    Yes.
4                  MR. ALDOUS: What about you,
5    Mrs. Gonzales?
6                  VENIREPERSON GONZALES:   Yes.
7                  MR. ALDOUS:   What about you, Mr. Kozak?
8                  VENIREPERSON KOZAK:    Yes.
9                  MR. ALDOUS: What about you, juror Number
10   14, Mrs. George?
11                 VENIREPERSON GEORGE:    Yes.
12                 MR. ALDOUS: What about you, Mr. Berg?
13                 VENIREPERSON GEORGE:    Yes.
14                 MR. ALDOUS: What about you, Mr. Maguire?
15                 VENIREPERSON MAGUIRE:    I just want to
16   clarify.   Is this harm like physically or financially?
17                 MR. ALDOUS: Financially.
18                 VENIREPERSON MAGUIRE:    Probably.
19                 MR. ALDOUS: I mean -- all right.
20                 Mrs. Watts?
21                 VENIREPERSON WATTS:    Yes.
22                 MR. ALDOUS: What about you, Mrs. Ortiz?
23                 VENIREPERSON ORTIZ:    Yes.
24                 MR. ALDOUS: What about you, Mr. Ramirez?
25                 VENIREPERSON RAMIREZ:    Yes.
                                                                 67



1                 MR. ALDOUS: Mr. Pearle?
2                 VENIREPERSON PEARLE:   Yes.
3                 MR. ALDOUS: Mrs. Doty?
4                 VENIREPERSON DOTY:    Yes.
5                 MR. ALDOUS: You're smiling.          I'm not
6    sure.   I'll ask you later
                              .
7                 VENIREPERSON DOTY:    I had the same
8    question as he did.
9                 MR. ALDOUS: Okay.     Mr. Pina?
10                VENIREPERSON PINA:    Yes.
11                MR. ALDOUS: What about you, Mr. Palmer
                                                       ?
12                VENIREPERSON PALMER:   Yes.
13                MR. ALDOUS: What about you,
14   Mrs. Ellender?
15                VENIREPERSON ELLENDER:   Yes.
16                MR. ALDOUS: And then we have Mrs. Duffey.
17                VENIREPERSON DUFFEY:   Yes.
18                MR. ALDOUS: And Mr. Perez?
19                VENIREPERSON PEREZ:    Yes.
20                MR. ALDOUS: Ms. Haggerty?
21                VENIREPERSON HAGGERTY:   Yes.
22                MR. ALDOUS: Mr. Cirone?
23                VENIREPERSON CIRONE:   Yes.
24                MR. ALDOUS: Mr. Villanueva?
25                VENIREPERSON VILLANUEVA:      Yes.
                                                               68



1                   MR. ALDOUS: And then, Mr. Adeboye?
2                   VENIREPERSON ADEBOYE:    Yes.
3                   MR. ALDOUS: All right. Let me ask you to
4    go back just a -- there was a couple of -- I think
5    Mr. Maguire and also Mrs. Ellender, you both said as
6    long as it's not personal injury or -- you made a
7    comment, were you talking about personal injury or
8    business.    If it was personal injury, would you feel
9    differently than if it was a business dispute, a
10   financial thing?
11                  VENIREPERSON MAGUIRE:    I think I'd be more
12   likely to sue in a case that was physical rather than if
13   it was financial.
14                  MR. ALDOUS: Thank you.    What did you
15   mean, Ms. Ellender, when you had that question?     I
16   didn't mean that you --
17                  VENIREPERSON ELLENDER:   Oh, I didn't -- I
18   didn't have one.
19                  MR. ALDOUS: Oh, Ms. Doty, Number 21.      You
20   know what?   I'm sorry.
21                  VENIREPERSON ELLENDER:   That's okay.
22                  MR. ALDOUS: Ms. Doty, Number 21, what
23   about the difference between personal injury versus
24   business injury would matter or financial injury?
25                  VENIREPERSON DOTY:   I mean, it would
                                                                 69



1    probably be -- it would be "yes" either way, butmore
2    for physical.
3                    MR. ALDOUS: Okay.      Yes, Mr. Pearle?
4                    VENIREPERSON PEARLE:     I think it would
5    probably be based on the amount.
6                    MR. ALDOUS: So you talked earlier about
7    the lawsuit your ex-wife brought for 10,000 or less.
8    Are you saying that there's a certain amountat which
9    you believe the dispute needs to be before you'll follow
10   through with it?
11                   VENIREPERSON PEARLE:     It needs to be more
12   than that.
13                   MR. ALDOUS: So, I mean, I think we can
14   probably all agree that if it doesn't meet your standard
15   of serious financial harm, you probably wouldn't do it?
16   And what might be serious financial harm for each one of
17   us might be less for some and more for others.       Does
18   everybody agree with that?
19                   So in terms of this case, though -- I
20   mean, in terms of my question, nobody here had a problem
21   with the fact that bringing a lawsuit, if they had to,
22   to recover financial harms as a result of a business
23   deal that they felt like they got wronged in, right?
24                   VENIRE PANEL:   Right.
25                   MR. ALDOUS: Thank you.
                                                               70



1                 How much time do I have left, Judge?
2                 THE COURT: You have four minutes.
3                 MR. ALDOUS: Thank you.     Your Honor, did
4    you want me to do the hardships or do you do the
5    hardships?
6                 THE COURT: I'll handle it.
7                 MR. ALDOUS: All right. Thank you.
8                 Now I do have questions.   One of the
9    issues that might be involved in this case is that
10   sometimes under the law, people are allowed to recover
11   their attorney's costs, the cost of hiring their
12   attorneys, their attorney's fees.   Does anyone have a
13   feeling about that one way or the other?   If you do,
14   raise your number.
15                Oh, Mrs. Ortiz, it started to come up.
16   She said -- Number 18, maybe.
17                VENIREPERSON ORTIZ:    When my dad had his
18   lawsuit, he actually kind of turned on to two teams of
19   lawyers; one here in Dallas, then one in Pennsylvania or
20   wherever it was.   And, basically, each were charging.
21   It went up so high, the bill was astronomical that he
22   basically got out of it.   He told each other -- I don't
23   know how he did it, but I thought it was pretty
24   interesting how much the lawyers were charging to
25   basically do the little work they were doing.    And each
                                                               71



1    of them were charging.    They were each working on it,
2    but one at a time.   But the other was still charging.
3    It was just ridiculous.   So the bill got ridiculous.     I
4    just was turned off by that whole process.
5                 MR. ALDOUS: Well, you know, most lawyers
6    couldn't afford themselves, and that's the way, kind of,
7    the market goes.   But is there anything else about your
8    work experience through your dad's stuff that would
9    cause you to say, "I can't follow the judge's
10   instructions and award attorney's fees to a prevailing
11   party just because of what happened to my dad?"
12                VENIREPERSON ORTIZ:    No.    I mean, I think
13   if someone's found guilty, they should pay for the
14   other's attorney
                    's fees.
15                MR. ALDOUS: I think -- are you saying
16   that you might look hard at the bills or something?
17                VENIREPERSON ORTIZ:    Definitely.
18                MR. ALDOUS: Mr. Pearle, you --
19                Thank you, ma'am.
20                You started to raise your number.
21                VENIREPERSON PEARLE:    (Inaudible).
22                MR. ALDOUS: Okay.     Anyone else want to
23   throw down and say something about that?    All right.
24                So, the one last thing that I have to talk
25   about is the stuff that we hear about in TV all the
                                                                 72



1    time.   You know, they talk about circumstantial evidence
2    versus, you know, eyewitness testimony.      You know, it's
3    a big deal on TV.    And, you know, the -- I believeit's
4    in this case.    The judge is going to instruct you that
5    circumstantial evidenceis just as good as direct
6    evidence.   And so I always kind of wondered, so what
7    does that really mean?    So here's the difference, the
8    way I always explain it.
9                    So if you see it snowing, then that's
10   direct evidence that it's snowing. If you go to sleep
11   and there's no snow on the ground and you wake up in the
12   morning and there's snow on the ground, that's
13   circumstantial evidencebecause you didn't see it
14   snowing, but you know it must have snowed because the
15   snow's on the ground.
16                   Now, I don't -- the question I really have
17   is:   Does anybody have a problem with that concept and
18   saying that, "No, I can't -- I can't do a verdict on
19   circumstantial evidence
                           . I need direct evidence
                                                  "?           Does
20   anybody feel that way?    Okay.   Great.
21                   So, now the judge is going to ask each one
22   of you whether or not you have some issues personally
23   about acting as a juror in this case.      And the good
24   thing -- there's really some good news.     The good news
25   is that you will not be sequestered at a hotel or
                                                               73



1    something, and it will not last for two months.    It's
2    probably going to be a three-day trial, and it's
3    starting on Monday.    So if anybody does have an issue --
4    Mr. Pina, I believe that you said, you know, you may
5    have an issue about finances or spending time out and
6    that sort of thing.
7                   Please raise it with the judge because,
8    you know, for -- as you can imagine, for Ken and Betsy
9    Gross, this is an important case for them.   And we don't
10   want anybody to feel financial pressure with having to
11   sit on the jury to have that effect the way that they
12   are feeling in this case because it's an important case
13   for them. So if you will raise that with the judge, I
14   would appreciate it.
15                  And the other thing that I'd like to say
16   is thank you for your time and thank you for your
17   attention.   And I hope I didn't pry too much into your
18   business.    Thank you.
19                  THE COURT: Thank you, Mr. Aldous.
20                  Ladies and gentleman
                                       , I have some
21   questions for you. It's now 12:25.   I know you-all have
22   been down here since about 8:30 this morning.   The
23   defendants in this case will also have an opportunity to
24   ask you some questions about your qualifications.
25   Usually the questions that they ask are not as long
                                                                 74



1    simply because some of the issues have been covered
2    already.    But they are entitled.    Bless you.   They are
3    entitled to a combined hour. And then we would have
4    some discussion before we know exactly who's going to be
5    asked to stay.
6                   So would you-all like to keep moving, or
7    would you like to take a brief lunch break and come
8    back?
9                   VENIRE PANEL:   Keep moving.
10                  THE COURT: Okay.      Is everybody okay?
11   Nobody have a health issue that they need to eat?         Some
12   people do.
13                  VENIREPERSON EVANS:    My leg is cramping up
14   real bad.
15                  THE COURT: Okay.      Why don't we take about
16   a five-minute stretch break, restroom break.       And we'll
17   just keep moving.
18                  (Venire panel exitsthe courtroom)
19                  (Brief recess taken)
20                  (Venire panel enters the courtroom)
21                  THE COURT:   Other than the fact that
22   Mrs. Evans or panel member Number 3 is standing up,is
23   anybody missing anybody who was sitting next to them?
24   Okay.   Terrific.    You may be seated.
25                  Mrs. Evans, if it makes you more
                                                                  75



1    comfortable, you can stand up over there.
2                  VENIREPERSON EVANS:    Thank you.
3                  THE COURT: We'll let the interns sit, and
4    then we'll ask Mr. Hagood to come forward.
5                  All right.    Mr. Hagood, you may proceed.
6                  MR. HAGOOD:    Thank you, Judge.
7                  Good afternoon folks.    It's already
8    afternoon.   So good afternoon to you-all.   As the judge
9    said, I'm Dan Hagood.      I won't read you
                                               my jury card.
10   When I sit on the plaintiff's side, I always read my
11   jury card.   By the time it comes to me, it seems so
12   contrived that I won't do it.
13                 I'll be very quick, frankly. The defense
14   (sic) covered a lot of ground I would have covered.      I
15   want to ask you this question.    I want to kind of pick
16   up where Mr. Aldous left off. If you had a close friend
17   or yourself, a family member, who had signed a written
18   contract, negotiated and signed, and then did not follow
19   that contract precisely to the letter, would you sue
20   someone for not following the contract if you were the
21   first one who did not honor the contract?
22                 Do you understand what I'm saying?      I've
23   got a contract.   It requires A, B, C, D, and E,parts A,
24   B, C, D, and E forboth parties. The party one, me, I
25   don't honor that contract.    I don't follow exactly what
                                                              76



1    my contract required me to do.   But I sue the other
2    party for not -- I first don't follow.   They know it,
3    and then the second party doesn't follow. Without --
4    would you, as the first party, sue the second party if
5    you're the first one to not honor the contract?
6                 It's a little different question than the
7    question you were asked earlier.   The question you were
8    asked earlier:   Would you sue if you, you know, were
9    seriously harmed in a business transaction?
10                I'm asking a much different question.      If
11   you were the first one that caused harm, would you sue
12   someone that you say harmed you?
13                So, Number 1, I want a "yes" or "no," just
14   the same as Mr. Aldous, if it's possible.
15                VENIREPERSON CANTU:   I don't understand
                                                         .
16                MR. HAGOOD: Okay.     I'm sorry, sir
                                                     .   I
17   apologize.
18                Number 2?
19                VENIREPERSON RODGERS:   I don't think I can
20   give you a "yes" or "no."   I think it dependsupon the
21   case and the varying degrees of how bad it is.
22                MR. HAGOOD: I understand.
23                Number 3?
24                VENIREPERSON EVANS:   I'm like Number 2.
25                MR. HAGOOD: Four?
                                                                 77



1                   VENIREPERSON DIMEFF:    Basically, no.
2                   MR. HAGOOD: Five?
3                   VENIREPERSON JACKSON:    Did I knowingly do
4    it?
5                   MR. HAGOOD: Oh, yeah.
6                   VENIREPERSON JACKSON:    Oh, I did it on
7    purpose?
8                   MR. HAGOOD: You're going to have to
9    decide that.   There's no question it's going to be --
10   under the question I'm posingto you, you are the one
11   who did not honor the contract first. Would you sue
12   someone for not honoring the contract themselves?
13                  VENIREPERSON JACKSON:    I don't know.   I
14   don't know that.      I can't say "yes" or "no."
15                  MR. HAGOOD: Okay.      That's fine.
16                  Six?
17                  VENIREPERSON LEIJA:    No.
18                  MR. HAGOOD: Seven?
19                  VENIREPERSON MCCOY:    No.
20                  MR. HAGOOD: Eight?
21                  VENIREPERSON VILLANUEVA:      No.
22                  MR. HAGOOD: Nine?
23                  VENIREPERSON PEARSON:    No.
24                  MR. HAGOOD: Ten?
25                  VENIREPERSON MACHEN:    No.
                                                             78



1                 MR. HAGOOD: Eleven?
2                 VENIREPERSON RICHIE:    No.
3                 MR. HAGOOD: Twelve?
4                 VENIREPERSON GONZALES:      No.
5                 MR. HAGOOD: Thirteen?
6                 VENIREPERSON KOZAK:     It just depends on
7    the situation.
8                 MR. HAGOOD: Okay.      Fair enough, sir.
9                 Fourteen?
10                VENIREPERSON GEORGE:    I don't know.
11                MR. HAGOOD: Fifteen?
12                VENIREPERSON BERG:    No.
13                MR. HAGOOD: Sixteen?
14                VENIREPERSON MAGUIRE:    Situational.
15                MR. HAGOOD: Seventeen?
16                VENIREPERSON WATTS:     Situational
                                                    .
17                MR. HAGOOD: Eighteen?
18                VENIREPERSON ORTIZ:    Situational.
19                MR. HAGOOD: Nineteen?
20                VENIREPERSON RAMIREZ:    No.
21                MR. HAGOOD: Twenty.
22                VENIREPERSON PEARLE:    No.
23                MR. HAGOOD: Twenty-one?
24                VENIREPERSON DOTY:    Situational.
25                MR. HAGOOD: Okay. Very well. Thank you.
                                                                 79



1    ma'am.
2                  Twenty-two?
3                  VENIREPERSON PINA:    No.
4                  MR. HAGOOD: Twenty-three?
5                  VENIREPERSON PALMER:    No.
6                  MR. HAGOOD: Twenty-four?
7                  VENIREPERSON ELLENDER:      No.
8                  MR. HAGOOD: Twenty-five?
9                  VENIREPERSON DUFFEY:    Depends on the
10   circumstances.
11                 MR. HAGOOD: Yes, ma'am. Thank you.
12                 Twenty-six?
13                 VENIREPERSON PEREZ:    No.
14                 MR. HAGOOD: Twenty-seven?
15                 VENIREPERSON HAGGERTY:      Circumstantial.
16                 MR. HAGOOD: Yes, ma'am.
17                 Twenty-eight?
18                 VENIREPERSON CIRONE:    No.
19                 MR. HAGOOD: Twenty-nine?
20                 VENIREPERSON VILLANUEVA:      No.
21                 MR. HAGOOD: Thirty?
22                 VENIREPERSON ADEBOYE:    No.
23                 MR. HAGOOD: Okay.     Fair enough.   Thank
24   you.   I've only got a couple of more questions. The way
25   the process works is the plaintiff goes first.     And what
                                                                80



1    always scares me when I'm on the defense side of the
2    room is that people make up their minds quick.    It's
3    psychological phenomenon calledrecency.      Once I hear
4    something, I kind of jump on it. And, really, the way
5    facts come out in a courtroom is like an assembly line.
6    Plaintiff goes first, so here's the first pack.      It
7    comes out.   Here's the second pack.      It comes out.
8    Here's the thirdpack.     It comes out.
9                    The defense packs are way back here
10   because we go second.    And it's so scaryto me that
11   people might make up their mind as the factscome
12   tumbling into a courtroom before they've heard all the
13   facts.   And I reallywant to caution people not to do
14   that. I want to ask if there -- if some people are just
15   predisposed and say, "Hey, Dan,I'm a person that makes
16   up my mind quick. I'm very decisive, and once I make up
17   my mind, I don't change my mind."
18                   I just need to discover if someone here is
19   like that. Only you know inside your heartof hearts.
20   So I need to ask you for -- have a fair representation
21   of my client because it would be unfair, I think you'd
22   all agree, if you made a decision before you heard all
23   the evidence.    That's all the Court's requiring.
24                   So, Number 2, would you have a problem
25   with that?
                                                              81



1                 VENIREPERSON RODGERS:    I don't have a
2    problem with that.
3                 MR. HAGOOD: Number three?
4                 VENIREPERSON EVANS:    No.
5                 MR. HAGOOD: Number 4, are you a decisive,
6    "I make my mind up quick" person?
7                 VENIREPERSON DIMEFF:    I am, but then it
8    could be changed with the next level.
9                 MR. HAGOOD: Okay.      So I call them --I
10   don't mean it in a bad way -- flip flop. Is that fair?
11                VENIREPERSON DIMEFF:    Yes.
12                MR. HAGOOD: Fair enough. Thank you.
13                Five?
14                VENIREPERSON JACKSON:    No.
15                MR. HAGOOD: Six?
16                VENIREPERSON LEIJA:    No.
17                MR. HAGOOD: Seven?
18                VENIREPERSON MCCOY:    No.
19                MR. HAGOOD: Eight?
20                VENIREPERSON VILLANUEVA:      No.
21                MR. HAGOOD: Nine?
22                VENIREPERSON PEARSON:    No, sir.
23                MR. HAGOOD: Ten?
24                VENIREPERSON MACHEN:    No.
25                MR. HAGOOD: Eleven?
                                                   82



1    VENIREPERSON RICHIE: No.
2    MR. HAGOOD: Twelve?
3    VENIREPERSON GONZALES:      No.
4    MR. HAGOOD: Thirteen?
5    VENIREPERSON KOZAK:    No.
6    MR. HAGOOD: Fourteen?
7    VENIREPERSON GEORGE:    No.
8    MR. HAGOOD: Fifteen?
9    VENIREPERSON BERG:    No.
10   MR. HAGOOD: Sixteen?
11   VENIREPERSON MAGUIRE:    No.
12   MR. HAGOOD: Seventeen?
13   VENIREPERSON WATTS: Yes.
14   MR. HAGOOD: Yes, ma'am.        I thank you.
15   Eighteen?
16   VENIREPERSON ORTIZ:    No.
17   MR. HAGOOD: Okay.      Nineteen?
18   VENIREPERSON RAMIREZ:    No.
19   MR. HAGOOD: Twenty?
20   VENIREPERSON PEARLE:    No.
21   MR. HAGOOD: Twenty-one?
22   VENIREPERSON DOTY:    No.
23   MR. HAGOOD: Twenty-two?
24   VENIREPERSON PINA:    No.
25   MR. HAGOOD: Twenty-three?
                                                               83



1                 VENIREPERSON PALMER:    No.
2                 MR. HAGOOD: Twenty-four?
3                 VENIREPERSON ELLENDER:   No.
4                 MR. HAGOOD: Twenty-five?
5                 VENIREPERSON DUFFEY:    No.
6                 MR. HAGOOD: Twenty-six?
7                 VENIREPERSON PEREZ:    No.
8                 MR. HAGOOD: Twenty-seven?
9                 VENIREPERSON HAGGERTY:   No.
10                MR. HAGOOD: Twenty-eight?
11                VENIREPERSON CIRONE:    No.
12                MR. HAGOOD: Thank you, sir.
13                Twenty-nine?
14                VENIREPERSON VILLANUEVA:      No.
15                MR. HAGOOD: Thirty?
16                VENIREPERSON ADEBOYE:    No.
17                MR. HAGOOD: Other than -- I don't mean it
18   disrespectful.   Other than the flip-floppers and
                                                    Number
19   17, I can count on you-all, y'all are going to promise
20   me you'll hold your fire until you've had all the
21   evidence and until you all get back in the jury room and
22   deliberate together before you make up your mind?       Can
23   y'all promise me that?
24                Okay.   Last area of inquiry.       I represent
25   and Mr. Shaw represents an entity, a business entity.
                                                                84



1    It's a -- frankly, it's apartnership. It's called VSDH
2    Ventures -- a couple of other words behind it --
3    Partnership.   And that's a business entity under the
4    law.   And Mr. Hickok here was a partner, and he is an
5    individual.    So he's here individually.    I'm here
6    representing the partnership.
7                   Now, has anyone ever had experience with
8    forming or working in partnerships or LLCs, limited
9    liability companies, limited liability partnerships,
10   anything like that?   In the first row, anyone with
11   experience in that area?
12                  Number 3, what is your experience, ma'am?
13                  VENIREPERSON EVANS:   With our family, we
14   have land and we're going through that.
15                  MR. HAGOOD: Yes, ma'am.      So you have some
16   experience working in -- working inside a partnership?
17                  VENIREPERSON EVANS:   Well, the whole
18   family's included, the whole heir family.
19                  MR. HAGOOD: Yes, ma'am.
20                  VENIREPERSON EVANS:   We're all kind of
21   included.
22                  MR. HAGOOD: All right. Thank you.
23                  VENIREPERSON EVANS:   We were born into it.
24                  MR. HAGOOD: Thank you, ma'am.
25                  Anyone else on the first row?
                                                                85



1                  On the second row?    Number 20, yes, sir?
2                  VENIREPERSON PEARLE:    We have development
3    companies with some partners and our company has
4    partners.
5                  MR. HAGOOD: Okay.     You understand there
6    were second -- the partnership is a second -- a separate
7    business entity, a separate human being for the purposes
8    of this courtroom.   It's not the same as Mr. Hickok.
9    Partnership's different.   Mr. Hickok is different.
10   They're separate entities.   Everybody understand that?
11                 Okay. Last row, anybody have any
12   experience in the partnership area?     All right.
13                 I want to thank you.    You're all a great
14   bunch of people.    I look forward to working in front of
15   you.   And thank you very much.
16                 THE COURT: Thank you, Mr. Hagood.
17                 Mr. Chaiken? You need to take some water
18   up there with you?
19                 MR. CHAIKEN: I think I'm okay.     There's
20   some in here now.    I appreciate it
                                        , Judge. I'm
21   suffering an allergy problem too.
22                 My name is Ken Chaiken.    And as I
23   mentioned earlier today, it is my privilege today to
24   represent Mr. Douglas Hickok, who's sitting in the room.
25   You heard Mr. Aldous tell you that this is a very
                                                               86



1    important case to Mr. and Mrs. Gross, who are not here
2    presently.    But it is also a very important case for
3    Mr. Hickok.   Mr. Hickok finds it to be a very important
4    case because he is the involuntary participant in this
5    room today.   He was sued.   Does everybody understand
6    that he was sued and that's why he is here today?   Does
7    anybody not understand that?
8                   Okay.   Now, this may sound like a silly
9    question, but I'm going to ask it anyway.    Is there
10   anybody among the group of you that believes that a
11   party who has been sued doesn't have a right to defend
12   themselves?   Anybody at all?
13                  So can I assume that you all agree that
14   when somebody has been sued, they have a right to defend
15   themselves?     Yes?
16                  And they have a right to rely upon who to
17   decide whether or not the suit against them is
18   meritorious or not meritorious?    Could you tell me who?
19   Who do they have a right to rely upon to decide those
20   issues?
21                  UNIDENTIFIED VENIREPERSON: A jury.
22                  MR. CHAIKEN: A jury, you folks.   Yes.
23                  And what is the one fundamental thing that
24   somebody who has been sued, who believes that they have
25   the right to defend themselves, believes that they have
                                                              87



1    a good defense, is entitled to expect from the members
2    of the jury who are ultimately selected to sit in the
3    box over there?   Can you tell me?   You've been on a
4    jury.
5                 VENIREPERSON GONZALES:       To be open-minded
                                                               ,
6    to hear everything and not pick and choose what you want
7    to hear.
8                 MR. CHAIKEN: Have you heard the words
9    preconceived notions?
10                VENIREPERSON GONZALES:       Yes.
11                MR. CHAIKEN: Would you agree with me that
12   what somebody like Mr. Hickok has a right to expect is
13   not only that jurors who are called upon to decide the
14   case against them are open-minded, but they don't come
15   with a preconceived notion about what the case involves
16   or whether somebody's a good person or a bad person or
17   those kind of things?   Would you agree me?
18                VENIREPERSON GONZALES:       I would.
19                MR. CHAIKEN: Is there anybody that
20   disagrees with that?    Anybody at all?
21                Do you agree with that, that somebody
22   who's been sued has a right to come into court and ask
23   for open-minded citizens, without preconceived notions,
24   to come in and listen to thecase from beginning to end
25   and decide the case based upon the evidence? Is that a
                                                             88



1    fair assumption?   Right todefend themselves, no
2    problem?   Is that right?
3                  UNIDENTIFIED VENIREPERSON: Yes.
4                  MR. CHAIKEN: Okay. Thank you.
5                  Now, I represent plaintiffs, who are
6    people who sue people, sometimes.     And I represent
7    defendants, people who are sued, sometimes. Kind of an
8    equal-opportunity lawyer.   I represent people who have a
9    need for my legal services.   Now, it's Mrs. Jackson
10   who's the real estate agent, right?
11                 VENIREPERSON JACKSON:    Yes.
12                 MR. CHAIKEN: Are you an equal-opportunity
13   realtor?   You represent buyers and sellers
                                               ?
14                 VENIREPERSON JACKSON:    That's right.
15                 MR. CHAIKEN: No distinction between the
16   two; no preference for one over the other?
17                 VENIREPERSON JACKSON:    No.
18                 MR. CHAIKEN: Is there anybody who thinks
19   -- and I'm going to pick on Mr. Machen over here because
20   he has graciously informed us that he's been involved in
21   a lawsuit that he served as plaintiff in.     Mr. Machen,
22   do you believe that just because somebody files a
23   lawsuit, there must be something to it?
24                 VENIREPERSON MACHEN:    No, not necessarily.
25                 MR. CHAIKEN: Okay.     And just because the
                                                                 89



1    lawsuit reaches the stage where we have to call upon
2    fine citizens like you to come down and make decisions,
3    if it made it this far, there must be something to it?
4    Anything like that?
5                   VENIREPERSON MACHEN:   Well, if you made it
6    this far, it must beneeding a solution from the jury.
7                   MR. CHAIKEN: Okay.     And I'll agree with
8    you.   It does need a solution from thejury.      But is
9    there anything about the fact that it has made it this
10   far that causes you to think, "Well, you know, he filed
11   a lawsuit.   There must be something to it because,
12   otherwise, we wouldn't be here"?
13                  VENIREPERSON MACHEN:   Well, not
14   necessarily.   No.
15                  MR. CHAIKEN: So you understand that there
16   are some lawsuits that have merit.
17                  VENIREPERSON MACHEN:   Right.
18                  MR. CHAIKEN: Like you believe yours had
19   merit, correct?
20                  VENIREPERSON MACHEN:   Yes.
21                  MR. CHAIKEN: And I assume that the party
22   who you sued at some point in time believed that they
23   had a defense, correct?
24                  VENIREPERSON MACHEN:   They didn't show up
25   in Court, but --
                                                             90



1                 MR. CHAIKEN: They never even -- they
2    never even announced
                        ? I know you said that it was a
3    default, but did they ever offer a defense at all for
4    part of the case?
5                 VENIREPERSON MACHEN:    No.
6                 MR. CHAIKEN: No, okay.
7                 Has anybody been involved in a suit where
8    they saw a defense offered?   Anybody at all?
9                 I'm going to come back to you again, okay,
10   Mrs. Jackson, because you have seen real estate
11   contracts, contracts for the purchase and sale of
12   residential real estate.
13                VENIREPERSON JACKSON:   Right.
14                MR. CHAIKEN: Have you ever seen contracts
15   that impose mutual obligations on the parties?
16                VENIREPERSON JACKSON:   What do you mean?
17                MR. CHAIKEN: Do you understand what
18   mutual obligations mean?
19                VENIREPERSON JACKSON:   No.
20                MR. CHAIKEN: Let's look at it this way.
21   When you are representing a seller and thebuyer and
22   seller enter into a contract.
23                VENIREPERSON JACKSON:   Right.
24                MR. CHAIKEN: There are obligations on the
25   party to sell it, correct, that are spelled out in the
                                                                91



1    contract; is that right?
2                  VENIREPERSON JACKSON:    Right.
3                  MR. CHAIKEN: One of those obligations
4    might be, if I receive X number ofdollars, I will sell
5    the property, correct?
6                  VENIREPERSON JACKSON:    Correct.
7                  MR. CHAIKEN: All right.     And then there
8    are also obligations on the part of the buyer, right? I
9    will obtain a survey. I will pay X number of dollars in
10   order to obtain title to the property, right?
11                 VENIREPERSON JACKSON:    Right.
12                 MR. CHAIKEN: Okay.      And that's
13   commonplace in real estate contracts, isn't it?
14                 VENIREPERSON JACKSON:    Right.
15                 MR. CHAIKEN: That's what I mean by mutual
16   obligation.
17                 VENIREPERSON JACKSON:    Yes.
18                 MR. CHAIKEN: And you're aware that when
19   parties enter into contracts, they are called upon to
20   perform their obligations; is that right?
21                 VENIREPERSON JACKSON:    Correct.
22                 MR. CHAIKEN: So if you have a contract
23   that has mutual obligations, then both parties are
24   expected to perform.
25                 VENIREPERSON JACKSON:    Right.
                                                            92



1                  MR. CHAIKEN: You understand that, right?
2                  All right.   And there was some discussion
3    earlier with you-all about, you know, if -- if somebody
4    brings a suit under a contract where they were required
5    to perform and they breached first, okay, or they didn't
6    perform first, we have a problem with them bringing the
7    suit.   You-all recall that conversation a little while
8    ago, right?
9                  My question is a little bit different.
10   Okay. My question -- and I'm going to start by asking
11   -- I'm bad at remembering names, so forgive me.
12                 Mr. Rodgers, I won't do any discount type
13   of check, comments, or -- well, factors comments.    But
14   I'm going to start with you.   Do you think it's
15   important when you're analyzing whether somebody's
16   performed under a contract or not or whether they're
17   required to perform under a contract or not andlook at
18   everybody's obligations to be performed?
19                 VENIREPERSON RODGERS:   Yeah.
20                 MR. CHAIKEN: And if you were instructed
21   in this case that one party's failure to perform excused
22   another party's failure to perform, could you follow
23   that instruction if the Court said you areinstructed
24   that if one party failed to perform first, the other
25   party's obligations are excused?   Could you follow that
                                                                  93



1    instruction?
2                   VENIREPERSON RODGERS:   I guess if that was
3    mandated, yeah.
4                   MR. CHAIKEN: Well, you seem to have
5    concern about that.    What would be your concern?
6                   VENIREPERSON RODGERS:   Not a concern.    I
7    guess I'm just trying to follow.   But if one person -- I
8    guess I'm thinking two wrongs don't make a right.       So if
9    one person does something wrong and it's excused, the
10   other person does something wrong and it's mutually
11   agreed that both areexcused, that's one thing.
12                  But if one person does something wrong and
13   it's not excused and another person does something wrong
14   that's also not excused, they're both wrong.
15                  MR. CHAIKEN: My question's a little bit
16   different.
17                  VENIREPERSON RODGERS:   Okay.
18                  MR. CHAIKEN: My question to you is:      If
19   the judge -- that will be Judge Benson because Judge
20   Tobolowsky won'tbe here with us once we get started in
21   the trial.   If the judge were to instruct you thatif
22   you found that the party suing failed to perform a
23   contract first --
24                  VENIREPERSON RODGERS:   Uh-huh.
25                  MR. CHAIKEN: -- okay, and that excused
                                                                 94



1    the other party, who was alleged to have not performed
2    under the contract, would you be able to comply with
3    that instruction?
4                  VENIREPERSON RODGERS:   Yeah.
5                  MR. CHAIKEN: Okay.   And would you be able
6    to comply with that instruction even if you felt like,
7    you know, the party that didn't perform first still got
8    hurt and they got damage and I kind of feel sorry, would
9    you still follow the instruction
                                    ?
10                 MR. ALDOUS: Your Honor, let me object to
11   this line of questioning because it doesn't give the
12   full aspect of what the Court might charge and it's
13   delving into the facts of the case.
14                 THE COURT: Sustained.
15                 MR. CHAIKEN: I'll move along.
16                 Has anybody ever been involved in a
17   transaction where somebody signed a guaranty?     Anybody
18   at all?   Does anybody know what a guaranty is?
19                 Are you raising your hand?     You are
20   Mr. Maguire, right?
21                 VENIREPERSON MAGUIRE:   Yes.    I feel like
22   everyone here has, but they may or may not know that,
23   but --
24                 MR. CHAIKEN: Okay.   What is a guaranty
25   based on your understanding?
                                                               95



1                  VENIREPERSON MAGUIRE:   I mean, if you buy
2    a vacuum cleaner or something has a money-back
3    guarantee, and it doesn't work or, you know, if you
4    purchase some other sort of product,there's a warranty.
5                  MR. CHAIKEN: Okay. That's one form of
6    guaranty.
7                  I'm going to pick on you again, and I'm
8    sorry.   But you -- Mrs. Jackson, have you ever seen --
9    do you deal with banks and lenders when you're involved
10   in real estate transactions
                               ?
11                 VENIREPERSON JACKSON:   Yes, I agree we
12   deal with them.
13                 MR. CHAIKEN: Have you ever encountered a
14   buyer who didn't really have sufficient credit to make
15   the transaction, but a family member may have agreed to
16   cosign a loan?
17                 VENIREPERSON JACKSON:   Yes.
18                 MR. CHAIKEN: Or put a little bit
19   differently, sign a document called a guaranty that
20   guaranteed repayment for performance of the obligations?
21                 VENIREPERSON JACKSON:   I would say I've
22   had a client do that.   But she did that mainly with her
23   lender, and the lender had to get those forms signed
24   separate, you know, money that was coming to her.
25                 MR. CHAIKEN: So, but you were familiar
                                                               96



1    with the concept of somebody who --
2                 VENIREPERSON JACKSON:    Yes.
3                 MR. CHAIKEN: -- guaranteed the
4    performance of another client, right?
5                 VENIREPERSON JACKSON:    Correct.
6                 MR. CHAIKEN: Okay.     And has anybody else
7    encountered a situation where somebody else was asked to
8    guaranty performance of a contract obligation of a third
9    party?
10                You're nodding your head back there.         And
11   I want to call you Mr. Adeboye, but know
                                         I    that's not
12   right.
13                VENIREPERSON ADEBOYE:    For example, I work
14   at Home Depot.    Okay.   You come out and buy some lock
15   for your house.   You see, that is guaranty.
16                MR. CHAIKEN: And you stand behind it?
17                VENIREPERSON ADEBOYE:    I stand behind that
18   lock.
19                MR. CHAIKEN: But has anybody ever been
20   involved -- Mr. Pearle?
21                VENIREPERSON PEARLE:    Yes, sir.    In my
22   prior business, I would hire different -- like a food
23   stylist or a clothing stylist or
                                    a makeup person.      So
24   the whole job hinges on that.   And I'm kind of
25   guaranteeing their showing up for work and doing the
                                                              97



1    job.   I mean, I don't know if that's really what you're
2    wanting.
3                  MR. CHAIKEN: My question is a little bit
4    different.   Has anybody encountered a situation where
5    one party said, "I will guaranty the performance of the
6    contract obligation that somebody else is required to
7    perform if they don't perform it?
8                  VENIREPERSON ORTIZ:   Like a cosigner?
9                  MR. CHAIKEN: A cosigner, yes.    That's
10   what I'm talking about, cosigner, yes. Have you been
11   involved in one of those, Mrs. Ortiz?
12                 VENIREPERSON ORTIZ:   My husband has.
13                 MR. CHAIKEN: Your husband has?
14                 VENIREPERSON ORTIZ:   Uh-huh.
15                 MR. CHAIKEN: Do you mind if I ask what
16   the nature of that is based
                              ?
17                 VENIREPERSON ORTIZ:   It's just when he was
18   younger, growing up, and wanting to get a truck, and his
19   dad cosigned for the truck
                              .
20                 MR. CHAIKEN: Cosigned a note
                                              .
21                 VENIREPERSON ORTIZ:   Yes.
22                 MR. CHAIKEN: So, in other words, he
23   guaranteed that he would pay for the note payments if
24   your husband didn't make payments; is that right?
25                 VENIREPERSON ORTIZ:   Correct.
                                                                  98



1                   MR. CHAIKEN: And did you under
                                                 stand that
2    in order for the lender in that situation to recover
3    from the guarantor, who would have been your husband's
4    father, your husband would have had to not pay first,
5    right?
6                   VENIREPERSON ORTIZ:    Right.
7                   MR. CHAIKEN: Does anybody have any
8    difficulty with that concept,you know, that there are
9    occasions where an individual may guaranty the
10   performance of another party's contract obligations?
11   Anybody have any issues about that?     Anybody find that
12   complex or bothersome or anything like that?       Yes,
13   ma'am?    You're Mrs. Evans, right?
14                  VENIREPERSON EVANS:    Uh-huh.    I kind of
15   went through that with my granddaughter. When she
16   finished high school, she wanted to buy a car.       I said I
17   can't afford to buy you a car. But she asked me would I
18   cosign.    Now, at first I was hesitant,
                                            because, you
19   know, I wasn't working.   And I said, well, you know,
20   it's going to fall back on me.
21                  But one time she got late on her payment.
22   Instead of calling her, they called me.        So it makes you
23   feel like, well, somehow if she's not able to pay for
24   this car, it sets in that you're going to have another
25   car payment if they don't pay for it, just like you are
                                                              99



1    still being held responsible.
2                 MR. CHAIKEN: But you wouldn't -- you
3    wouldn't have a problem, would you, if the bank called
4    you and said, hey, we're calling on you to make the
5    payments but -- was it your daughter or your
6    granddaughter?
7                 VENIREPERSON EVANS:    Granddaughter.
8                 THE COURT: But your granddaughter, you
9    found out she made the payment.    Would you have a
10   problem with that?
11                VENIREPERSON EVANS:    She made the payment?
12                MR. CHAIKEN: Okay.     But if you had found
13   out that your granddaughter made the payment, okay, but
14   the bank was saying, "Well, you're the guarantor.       We
15   want you to pay
                   ."
16                VENIREPERSON EVANS:    But that's what they
17   were going to tellme.
18                MR. CHAIKEN: Oh, they were.       Andyou had
19   a problem with that, right?
20                VENIREPERSON EVANS:    Well, I didn't have a
21   problem with it.   I just realized sometimes
                                                you don't
22   really realize what you're doing, you know, because
23   you're so happy they graduated and she was responsible.
24   She was working.   And, you know, but you don't never
25   know if their job -- you know, not have a job next week.
                                                                100



1    If they don't pay, you got to pay.
2                    MR. CHAIKEN: Right.     Well, my question to
3    you is a little different.      When the bank called you and
4    said, "Well, we want you to pay for her," even though
5    she had already paid, do you think that was wrong?
6                    VENIREPERSON EVANS:    Of course, if she
7    already paid.
8                    MR. CHAIKEN: Okay.     So, it would have
9    been wrong for them to look to you as the guarantor and
10   say, "Well, you're the guarantor.        We're just
                                                       going to
11   ask you to pay anyway."       That's not right.    Do you agree
12   with that?
13                   VENIREPERSON EVANS:    That's not right.
14                   MR. CHAIKEN: Okay. Anybody else ever
15   find themselves in a situation where -- where either
16   they asked somebody to guaranty or cosignone of their
17   obligations or they were asked to do so?
18                   Yes, ma'am.    You are Ms. Doty?    Yes?
19                   VENIREPERSON DOTY:    Yes.
20                   MR. CHAIKEN: Okay, 21.
21                   VENIREPERSON DOTY:    Apartment after
22   college, it was right out of college.
23                   MR. CHAIKEN: Right.
24                   VENIREPERSON DOTY:    My dad cosigned for my
25   apartment.
                                                             101



1                    MR. CHAIKEN: And so your dad agreed to do
2    that for you?
3                    VENIREPERSON DOTY:   Yes.
4                    MR. CHAIKEN: Okay. And you wouldn'thave
5    expected your dad to have to honor the guarantee of your
6    payment obligations unless you breached your obligation
7    to pay; is that right?
8                    VENIREPERSON DOTY:   Correct.
9                    MR. CHAIKEN: So, in other words, the
10   guarantee is only enforceable when the circumstances
11   giving rise to it have occurred; is that a fair
12   statement?
13                   MR. ALDOUS: Your Honor, let me object to
14   that particular question as going beyond the scope of
15   voir dire.
16                   THE COURT: Sustained.
17                   MR. CHAIKEN: I'm just trying to find the
18   biases on guarantors, if there are any.         I'll move on.
19                   THE COURT: Mr. Chaiken, pleasemove
20   along.
21                   MR. CHAIKEN: Does anybody think that just
22   because somebody allegedly signs a guarantee, they're
23   automatically responsible for the obligations of
24   somebody else?
25                   MR. ALDOUS: Your Honor, let me object to
                                                             102



1    that question also and for the same reason.
2                   THE COURT: Sustained.
3                   MR. CHAIKEN: I'll move along, Judge.
4                   If you're a party to a contract, as your
5    clients are, your clients expect the other party to
6    comply with the requirements of the contract that they
7    signed and agreed to; is that true?
8                   VENIREPERSON DOTY:   Uh-huh.
9                   MR. CHAIKEN: And would anybody find it
10   difficult to say, well, a party comes in and is suing to
11   enforce a contract, but they don't want to comply with
12   all the requirements of the contract if they don't find
13   them favorable to themselves, but they want the other
14   person to be held responsible for thecontract.
15                  MR. ALDOUS:   Your Honor, I object to that
16   question as going into the facts of the case.
17                  MR. CHAIKEN: I'm not going into the facts
18   of the case.
19                  MR. ALDOUS: It's improper for voir dire,
20   Your Honor.
21                  THE COURT: I'm going to ask you to move
22   on, Mr. Chaiken
                   .
23                  MR. CHAIKEN: You were asked questions
24   earlier about the difference between people and
25   entities.   You-all recall that conversation?
                                                             103



1                   Corporations are -- are they alive?     Are
2    they alive, sir? I mean, are they -- can you see them
3    and touch them and hear them?
4                   THE REPORTER:    I didn't hear him.
5                   MR. CHAIKEN: My question to you, sir, is:
6    You understand what abusiness entity is?       You talked
7    about that earlier in response tosome questions by
8    Mr. Hagood.    Do you remember that?
9                   UNIDENTIFIED VENIREPERSON: Okay.
10                  MR. CHAIKEN: And you know what a
11   corporation is; it's a business.    Okay.    Do you
12   understand that corporations act through individuals,
13   individuals that work for the company or who represent
14   the company.   You understand that concept?
15                  UNIDENTIFIED VENIREPERSON: Yes.
16                  MR. CHAIKEN: But you understand that when
17   those people are acting, they may be acting for the
18   entity.    Do you understandthat?
19                  UNIDENTIFIED VENIREPERSON:     Yes.
20                  MR. CHAIKEN: Okay.      Mrs. Ortiz, you were
21   shaking your head, yes.    Do you understand that if a
22   contract -- if a corporation or a business entity or a
23   partnership is involved in signing a contract, somebody,
24   a human being, has to sign the contract on behalf of the
25   company?
                                                             104



1                 VENIREPERSON ORTIZ:     Correct.
2                 MR. ALDOUS: Your Honor, let me object to
3    that question as also being outside the scope of voir
4    dire.
5                 THE COURT: Overruled.
6                 MR. CHAIKEN: Thank you.
7                 And do you have any difficulty
8    distinguishing the idea that where the human being who
9    signs the document on behalf of the business entity does
10   so, they may only be acting on behalf of that entity?
11                VENIREPERSON ORTIZ:   Correct.
12                MR. CHAIKEN: Okay. Do you have any belief
13   or any preconceived notion that if they sign their name
14   to it on behalf of a company or a corporation, they
15   intended by placing their personal name on the document
16   to be personally responsible for the obligationsthat
17   are owed by the company?
18                MR. ALDOUS: Your Honor, I object.   That's
19   going into the --
20                THE COURT: Sustained.
21                MR. CHAIKEN: Mr. Rodgers, can you be a
22   fair and impartial juror in this case?
23                VENIREPERSON RODGERS:    Uh-huh.
24                MR. CHAIKEN: Is there anything about what
25   you've heard today that causes you to have any concern
                                                             105



1    about your ability to be open-minded and fair and
2    impartial --
3                   VENIREPERSON RODGERS:   No.
4                   MR. CHAIKEN: -- and to wait until the end
5    of the evidence to make a decision as to who's wrong and
6    who's right?
7                   VENIREPERSON RODGERS:   No.
8                   MR. CHAIKEN: What about you, Mrs. Evans
                                                          ?
9                   VENIREPERSON EVANS:    I mean, ask the
10   question again.
11                  MR. CHAIKEN: Is there anything that
12   you've heard so far today that causes you to have
13   concern about whether you can be a fair and impartial
14   juror in this case?
15                  VENIREPERSON EVANS:    I can't.
16                  MR. CHAIKEN: You can't?        Okay.
17                  What about you, Mrs. Dimeff, can you be a
18   fair and impartial juror
                            ?
19                  VENIREPERSON DIMEFF:    I can.
20                  MR. CHAIKEN: You can listen to the
21   evidence from beginning to end
                                  ?
22                  VENIREPERSON DIMEFF:    Yes.
23                  MR. CHAIKEN: No preconceived notions
24   about who's wrong or who's right by virtue of who sued
25   whom?
                                                             106



1                 VENIREPERSON DIMEFF:    Well, I sort of do,
2    but -- I sort of have a preconceived notion.
3                 MR. CHAIKEN: Okay.      What's your
4    preconceived notion?
5                 VENIREPERSON DIMEFF:    Well, I don't want
6    to say it in front of everybody.
7                 MR. CHAIKEN: Okay.     Can we talk to you
8    about that privately afterwards?
9                 VENIREPERSON DIMEFF:    Yes.
10                MR. CHAIKEN: Okay.     Mrs. Jackson, what
11   about you? Can you be a fair and impartial juror?
12                VENIREPERSON JACKSON:    Yes.
13                MR. CHAIKEN: Can you listen to all of the
14   evidence from beginning to end before deciding who's
15   wrong and who's right?   And you aren't influenced
                                                      by who
16   sued whom in terms of arriving at that decision?
17                VENIREPERSON JACKSON:    No.
18                MR. CHAIKEN: Thank you.
19                Mr. Leija, what about you?      Can you be a
20   fair and impartial jurorif you're selected on this --
21   to serve as a juror on this case?
22                VENIREPERSON LEIJA:    Yes.
23                THE REPORTER:   I heard, "yes."       But I
24   didn't hear anything after that.
25                MR. CHAIKEN: He said, "Yes, if he
                                                            107



1    understands the concept."
2                 Mr. Leija, can you come to your jury
3    service with an open mind without preconceived notions
4    as to who's wrong and who's right
                                    ?
5                 VENIREPERSON LEIJA:   Yes.
6                 MR. CHAIKEN: Okay.    What about you,
7    Ms. McCoy?
8                 VENIREPERSON MCCOY:   Yes.
9                 MR. CHAIKEN: You can be fair and
10   impartial?
11                VENIREPERSON MCCOY:   Yes.
12                MR. CHAIKEN: And you can listen to the
13   evidence from beginning to end, and you can give
14   Mr. Hickok the opportunity to provide his defense
15   without forming any decisions before he's done so
                                                     .
16                VENIREPERSON MCCOY:   Yes.
17                MR. CHAIKEN: Okay.    Thank you.
18                Mr. Villanueva, how about you
                                             ?
19                VENIREPERSON VILLANUEVA:     Yes.
20                MR. CHAIKEN: Same thing?
21                VENIREPERSON VILLANUEVA:     Uh-huh.
22                MR. CHAIKEN: Okay.    Ms. Pearson, what
23   about you?
24                VENIREPERSON PEARSON:   Yes.
25                MR. CHAIKEN: Mr. Machen?
                                                                 108



1                   VENIREPERSON MACHEN:    Yes.
2                   MR. CHAIKEN: Okay.      Mr. Richie, I haven't
3    picked on you at all.   How about you?       Can you be fair
4    and impartial, open-minded,and serve as a jurorwithout
5    preconceived notionsas to who's wrong and who'sright?
6                   VENIREPERSON RICHIE:    Sure.
7                   MR. CHAIKEN: Ms. Gonzales, whatabout
8    you?
9                   VENIREPERSON GONZALES:    Absolutely.
10                  MR. CHAIKEN: Okay.      Mr. Kozak, what about
11   you, sir?
12                  VENIREPERSON KOZAK:    Yes.
13                  MR. CHAIKEN: All right.       Mrs. George?
14                  VENIREPERSON GEORGE:    Yes.
15                  MR. CHAIKEN: All right.       Mr. Berg?
16                  VENIREPERSON BERG:    Yes.
17                  MR. CHAIKEN: Mr. Maguire?
18                  VENIREPERSON MAGUIRE:    Yes.
19                  MR. CHAIKEN: Ms. Watts?
20                  VENIREPERSON WATTS:    I tend to jump to
21   conclusions.   I can sit and listen, but I could jump to
22   conclusions in the beginning.
23                  MR. CHAIKEN: Okay.     Do you think that
24   effects your ability to be fair and impartial andto sit
25   and listen to all the evidence from beginning to end
                                                              109



1    before deciding who's wrong and who's right?
2                  VENIREPERSON WATTS:   Yes.
3                  MR. CHAIKEN: It does?
4                  VENIREPERSON WATTS:   Yes, it does.
5                  MR. CHAIKEN: Okay.    Thank you for your
6    honesty.   I appreciateit.
7                  Mrs. Ortiz, what about you?
8                  VENIREPERSON ORTIZ:   I'm kind of in the
9    same boat as her, but I'mwilling to -- I think that
10   earlier I flip flopped back.
11                 MR. CHAIKEN: Well, when you say you're
12   kind of in the same boat, the boat that I understood
13   Ms. Watts to be in is that shedoesn't believe that she
14   can be fair and impartial because of her preconceived
15   beliefs about the situation.   What about you?   Can you
16   be fair and impartial, notwithstanding the fact that you
17   tend to jump to conclusions and then maybe flip flop, or
18   what?
19                 VENIREPERSON ORTIZ:   I think I can be fair
20   and impartial.
21                 MR. CHAIKEN: So you can wait to listen to
22   everything, follow the instructions of theCourt, and
23   then decide who's right or who's wrong?
24                 VENIREPERSON ORTIZ:   Yes.
25                 MR. CHAIKEN: Okay.    What about you?   Is
                                                              110



1    it -- you're Mr. Ramirez.   Sorry. Can you be fair and
2    impartial from beginning to end?
3                 VENIREPERSON RAMIREZ:    Yes.
4                 MR. CHAIKEN: Without preconceived notions
5    as to who's wrong and who's right?
6                 VENIREPERSON RAMIREZ:    My mind may wander
7    a little.
8                 MR. CHAIKEN: Okay. Is there anything
9    that effects your ability to be fair and impartial
                                                      --
10                VENIREPERSON RAMIREZ:    No.
11                MR. CHAIKEN: -- and be attentive andto
12   follow the instructions of the Court
                                       .
13                VENIREPERSON RAMIREZ:    No.
14                MR. CHAIKEN: Okay. I appreciate that.
15                Mr. Pearle, what about you, sir?
16                VENIREPERSON PEARLE:    I can be fair and
17   impartial.
18                MR. CHAIKEN: From beginning to end
                                                   ,
19   without forming an opinion in advance
                                         as to who's wrong
20   and who's right?
21                VENIREPERSON PEARLE:    Correct.
22                MR. CHAIKEN: Okay.      Thank you, sir.
23                Ms. Doty, how about you
                                        ?
24                VENIREPERSON DOTY: I can be.
25                MR. CHAIKEN: Okay. From beginning to end?
                                                               111



1                 VENIREPERSON DOTY:   Yes.
2                 MR. CHAIKEN: All right.
3                 Tell me your name.     I'm sorry.
4                 VENIREPERSON PINA:   Pina.
5                 MR. CHAIKEN: Mr. Pina, I'm sorry.       My
6    writing is bad and I don't have my reading glasses on.
7    Like Mr. Aldous, I'm kind of getting upthere in age.
8                 All right.   Can you be fair and impartial
9    from beginning to end?
10                VENIREPERSON PINA:   Yes.
11                MR. CHAIKEN: You can approach the case
12   with an open mind, without preconceived notions or
13   judgments about who's wrong and who's right?
14                VENIREPERSON PINA:   Yes.
15                MR. CHAIKEN: Okay. Thank you, sir.
16                Mr. Palmer or is it Dr. Palmer?
17                VENIREPERSON PALMER:    Doctor.
18                MR. CHAIKEN: Dr. Palmer, how about you,
19   sir?
20                VENIREPERSON PALMER:    Yes.   I can be fair
21   and impartial from beginning to end.
22                MR. CHAIKEN: Okay.     And there's nothing
23   about what you've heard that causes you any concern
24   about your ability to be fair and impartial andfollow
25   the instructionsof the Court?
                                                             112



1                  VENIREPERSON PALMER:   No.
2                  MR. CHAIKEN: Thank you.
3                  Ms. Ellender, how about you?
4                  VENIREPERSON ELLENDER:   Yes.
5                  MR. CHAIKEN: You can be?
6                  VENIREPERSON ELLENDER:   Yes.
7                  MR. CHAIKEN: Okay. From beginning to end
                                                          ?
8                  VENIREPERSON ELLENDER:   Yes.
9                  MR. CHAIKEN: No preconceived notions as
10   to who's wrong and who's right?
11                 VENIREPERSON ELLENDER:   No.
12                 MR. CHAIKEN: Thank you.
13                 Is there anybody else who feels like
14   Ms. Watts, that, you know, they just are kind of quick
15   out of the gates to make a decision and, you know, they
16   find that it will effect their ability to be -- and I
17   appreciate her honesty, by the way; but we need you all
18   to be honest on this.
19                 Is there anybody else who feels the same
20   way, that they just don't think they can be fair and
21   impartial from the beginning to end?
22                 Anybody else, the back row in particular
23   because I haven't singled you all out?     Anybody, anybody
24   else?   If I ask the question a little bit differently,
25   it causes you to think a little bit different about it.
                                                             113



1    Anybody? Yes, ma'am, you raised your hand in the back.
2                  UNIDENTIFIED VENIREPERSON: Not from the
3    beginning to the end because circumstances changewithin
4    a process.   And even before we hear from the beginning,
5    I might think something.   And as theprocess goes along,
6    it may not be what I thought it was, not from the
7    beginning to the end.
8                  MR. CHAIKEN: So you cannot be fair and
9    impartial from beginning to end?
10                 UNIDENTIFIED VENIREPERSON: Not from the
11   beginning to the end
                        .
12                 MR. CHAIKEN: So at some point in the
13   process --
14                 UNIDENTIFIED VENIREPERSON: I can be
15   impartial, but not from the beginning to the end
                                                    .
16                 MR. CHAIKEN: Okay.   So at some point in
17   time, you will form your opinion without waiting for all
18   of the evidence and you'll sit with it --
19                 UNIDENTIFIED VENIREPERSON: I'll wait, but
20   it still can change within that time.   I can wait to
21   hear everything in that time.
22                 MR. CHAIKEN: Ladies and gentlemen
                                                   , I
23   appreciate the time that you have taken out of your busy
24   days to be here and fulfill this important service as
25   jurors.   Without you, the process doesn't work.   Without
                                                            114



1    you, people like my client don't have the ability to
2    have their day in court and have a fair and full
3    opportunity to haveissues of concern to them resolved.
4    So thank you for your time and attention.
5                  THE COURT: Thank you, Mr. Chaiken.
6                  Ladies and gentlemen
                                      , we're going to
7    excuse you in a moment out into the hallway while the
8    attorneys and I have some further discussionsthat will
9    lead to the selection of the jury.
10                 You have heard me say that you will not be
11   coming back this week, that you will be coming back on
12   Monday.   And you have heard an estimate that the trial
13   would be approximately three days.   Since this is not my
14   case, I know no more about it than you do.   So assuming
15   we're talking about a three-day case, I'm going to ask
16   you a question, but I want you to listen to the
17   qualifiers that I'm going to put on this question before
18   everybody throws their card in the air.
19                 I recognize everybody works.   Everybody
20   has family responsibilities
                               .   It's hard to be away from
21   your day-to-day obligations. I understand that totally.
22   I'm not asking about that.   But I am asking, with regard
23   to next week, does anybody have surgery scheduled, a
24   doctor's appointment, non-refundable tickets to
25   somewhere?   And, if you do, would you raise your hand?
                                                               115



1                   Okay. I need -- I'm sorry -- Number 1 --
2    hold on.   One, 2, 19, 23 -- I'm sorry.    Are you 25?
3                   VENIREPERSON DUFFEY:    Twenty-five.
4                   THE COURT: Twenty-five, I've got 23
5    already.   Anybody else who cannot -- who wants to talk
6    to me about whether or not they canbe here?
7                   Okay.   Number 3, I was already going to
8    talk to you.
9                   And, Number 20, you understand the
10   parameters I've put on this?
11                  UNIDENTIFIED VENIREPERSON: And then we're
12   going to be here?
13                  THE COURT: I'm going to get to you in
14   just a minute.
15                  Number 20, your answer is within the scope
16   that I talked about?
17                  VENIREPERSON PEARLE:    I will put my card
18   down.
19                  THE COURT: Okay.   And, Number 27, is your
20   problem within the scope I talked about?
21                  VENIREPERSON HAGGERTY:   Yes.
22                  THE COURT: All right.
23                  VENIREPERSON RODGERS:    Can I talk about my
24   scope real quick? I'm leaving town Thursday.      So, if
25   it's a three-day trial, it wouldn't be an issue.      But if
                                                              116



1    it's going to --
2                    THE COURT: You know, I don't know.     I'm
3    going to have to verify with the lawyers.       When would
4    you be leaving town Thursday, in the morning or in the
5    evening?
6                    VENIREPERSON RODGERS: First flight out on
7    Thursday morning.
8                    THE COURT: Okay.   Thank you.
9                    All right. What I would like to do then is
10   ask -- okay. We know what the issue is with Panel Member
11   Number 2.    So I'm not going to ask you to stay behind,
12   but I would ask Panel Member Number 1, Number 3, Number
13   4, Number 17, Number 19, Number 23, Number 25, Number
14   27, and Number 29 to remain here in the courtroom in
15   your seats.
16                   Otherwise, if you would, please leave your
17   numbers in your chairs and go out in -- when I tell you
18   to, go out into the hallway.    Please remember my
19   instructions.    Do not discuss the case.   Do not do any
20   independent investigation.    No Googling, texting,
21   tweeting, blogging, Facebooking.    If you need to let
22   your employer know that you are still here, you
23   certainly may do that.    But don't discuss anything more
24   than that.
25                   So, other than the ones whose numbers I've
                                                              117



1    called and asked to stay here, if the rest of you will
2    go out into the hallway.   Please don't get too far away
3    -- you can go to the restroom or whatever -- in case we
4    need to speak with you.    But we are going to be working
5    on who is going to be a juror in this case.    Thank you.
6    Those whose number I did not call may go out in the
7    hallway.
8                   (Venire panel exits the courtroom)
9                   THE COURT: Counsel, do you-all want to
10   come up to the bench?
11                  Jose Cantu, would you come up here,
12   please?    Mr. Cantu, you have indicated that you have
13   some difficulty with English.
14                  VENIREPERSON CANTU:   Uh-huh.
15                  THE COURT: And I didn't -- don't recall.
16   I may have asked you these questions. And if I have,
17   please forgive me.   Can you read English?
18                  VENIREPERSON CANTU: Well, I don't -- I
19   read, but I don't know enough.
20                  THE COURT: You don't know enough?
21                  VENIREPERSON CANTU:   No.
22                  THE COURT: Have you understood what we've
23   been talking about here?
24                  VENIREPERSON CANTU:   But, like I said,
25   some words I don't understand.   So it's too hard for me
                                                             118



1    to get a decision because I don't want to get a wrong
2    decision.   One word can change everything for me.
3                  THE COURT: Okay.   And remind me what you
4    do.
5                  VENIREPERSON CANTU:   I work for a company.
6    I'm a machine operator.
7                  THE COURT: Okay. And how long have you
8    lived -- where were you born?
9                  VENIREPERSON CANTU:   I was born in Mexico.
10                 THE COURT: And how long have you lived
11   here in this country?
12                 VENIREPERSON CANTU:   Twenty-six years.
13                 THE COURT: And do you speak English on
14   your job or Spanish on your job?
15                 VENIREPERSON CANTU:   So, so.   I mean,
16   maybe half.
17                 THE COURT: Okay.   Counsel I tend to err
18   on the side of caution and would be inclinedto excuse
19   Panel Member Number 1.
20                 MR. CHAIKEN: No objection.
21                 MR. HAGOOD: No objection.
22                 MR. ALDOUS: No objection.
23                 THE COURT: Thank you, sir. If you will
24   leave your juror badge -- I don't know where our bailiff
25   is.   But if you will just leave it there on the ledge,
                                                            119



1    you may go back to work or go home.    And thank you very
2    much for your service.
3                  VENIREPERSON CANTU:    Thank you.
4                  THE COURT: Cathye, can you hear me?
5                  THE REPORTER:   Yes, ma'am
                                            .
6                  THE COURT: All right.     I'm going to try
7    to get the language people out of the way first.
8                  MR. ALDOUS: Juror Number 29.
9                  THE COURT: Yes.
10                 MR. CHAIKEN: We'd agree, Your Honor.
11                 THE COURT: Okay.      All right.
12                 Senor Villanueva
                                  ?
13                 VENIREPERSON VILLANUEVA:    I'm sorry for --
14                 THE COURT: I understand and we understand
15   that. Thank you.   You may go back to work or you may go
16   back home.   If you will leave us your badge --
17                 VENIREPERSON VILLANUEVA:    I'm sorry.
18                 THE COURT: -- and your number. That's
19   quite all right.
20                 MR. CHAIKEN: Thank you, sir.
21                 THE COURT: Thank you.
22                 Sheriff, we've excused Number one and
23   Number 29 for language reasons.
24                 Okay. I think they were the only language
25   people.
                                                             120



1                  Then Number 2, we know has a flight out
2    Thursday morning.   I'm not familiar with your case, so
3    we -- y'all can just -- I'm just holding that out there.
4    And, you know, obviously, you don't want to seat
5    somebody that may have to disappear even if you're going
6    to have an alternate.   So that's just FYI.    If you want
7    to excuse him now out of an abundanceof caution and you
8    want to agree to that, that's fine.
9                  MR. ALDOUS: Would it be possible to have
10   him come and explain whether or not it's a definite deal
11   or whether or not it's something he could reschedule
12   with work?
13                 THE COURT: Sure.    I will do that, but I'm
14   not going to do that at this moment.
15                 MR. ALDOUS: Okay.      That's fine.
16                 THE COURT: Okay.
17                 MR. CHAIKEN: And, Judge, just in case it
18   comes up again, we don't necessarily share Mr. Aldous'
19   view that it's a three-day trial. And so we think it
20   will probably take the better part of, if not all of,
21   next week.   Just so you're aware.
22                 THE COURT: All right.     Mrs. Evans?
23                 This is Panel Member Number 3.
24                 Come on up.   Mrs. Evans, you were asked
25   some questions earlier, and you said you kind of wanted
                                                                  121



1    not to talk in front of everybody.    Do you remember what
2    that was about?
3                   VENIREPERSON EVANS:   Yeah.     He asked me
4    did I know of somebody that had a lawsuit against a
5    family or friend.   And I just had a friend that did have
6    a lawsuit.   And, well, I didn't think it was a fair
7    lawsuit.    But, you know, they said it was because she
8    did get injured pretty bad.
9                   THE COURT: But you had some question in
10   your own mind about whether it was a fair lawsuit?
11                  VENIREPERSON EVANS:   Yeah. But wasn't
12   nothing I could do about it.   You know, they went in --
13   it ain't like she had a jury, you know, trial or
14   anything.
15                  THE COURT: Was there anything -- is there
16   anything about that or anything you've done previously
17   in the legal system that would make you think you could
18   not be fair as a juror in this case?
19                  VENIREPERSON EVANS:   No way.    I think I
20   could be a good juror.
21                  THE COURT: Okay.   Now you said you were
22   having a problem with your leg falling asleep or
23   something.   Do you have some physical problems, or was
24   it just for the moment?
25                  VENIREPERSON EVANS:   I have physical
                                                              122



1    problems.   I have disability in my spine and my knee.     I
2    had knee replacement. I've got to have another knee
3    replacement.   And it seems like my other leg is going
4    out, and I can't sit very long.
5                   THE COURT: Now if you are seated as a
6    juror, you're going to be inthese more comfortable
7    chairs over here where the interns are.    And I know
8    there will be breaksduring the day.     I'm sure there
9    will be at least one break during the morning.    There
10   will be a lunch break.   There will be at least one break
11   in the afternoon.   I don't know how many breaks Judge
12   Benson normally has, but I can promise you that it will
13   be at least that.   Do you think that will be enough, or
14   are you concerned about your ability to sit?
15                  VENIREPERSON EVANS:   I may have to stand
16   up.   That's the only problem because
                                         my -- I was
17   cramping up.
18                  THE COURT: Right.
19                  VENIREPERSON EVANS:   But I would love to
20   be a juror.    I've never been a juror, and I would love
21   to if I -- if it just weren't for my little injuries
22   that I have.
23                  THE COURT: All right. Counsel, anybody
24   else have any questions for Number 3?
25                  MR. ALDOUS: Ma'am, if you were allowed to
                                                              123



1    just stand up if your leg started feeling a little gimpy
2    on you and you were able to stand up in the jury box,
3    could you serve?
4                   VENIREPERSON EVANS:    I sure could.
5                   MR. ALDOUS: Thank you, ma'am.
6                   THE COURT: Anything else from you guys?
7                   MR. CHAIKEN: I don't have anything
                                                     ,
8    Judge.
9                   THE COURT: Okay. Thank you so much.
10   Will you go back out in the hallway for us?
11                  VENIREPERSON EVANS:    All right.
12                  MR. CHAIKEN: Thank you, Mrs. Evans.
13                  THE COURT: All right.     Mrs. Dimeff?
14                  Okay.   When Mr. Chaiken was asking his
15   questions --
16                  VENIREPERSON DIMEFF:   Uh-huh.
17                  THE COURT: -- you said, well, you might
18   have a preconceived notion about how you feel about the
19   case.
20                  VENIREPERSON DIMEFF:   I do.   I can't help
21   it.   And I'm under oath, so I had to say.
22                  THE COURT: Okay.   So talk to me about
23   that.
24                  VENIREPERSON DIMEFF:   What is my notion,
25   my preconceived notion?
                                                             124



1                   THE COURT:   Yes.
2                   VENIREPERSON DIMEFF:   Well, as a designer,
3    I've worked with a lot ofcontractors and
4    subcontractors.    And a lot of them do sort of unethical
5    things.    And so I'm just sort of picturing this whole
6    case, and I'm picturing that this couple hired this
7    company.   This company did not follow through.   And so
8    now the company is saying, well, we didn't follow
9    through because you didn't do this.
10                  And then, secondly, I feel like then
11   they're trying to kind of weaselout of it by saying --
12   by saying you can't sue him.    You have to sue this
13   company, which is an LLC.    That is just what I'm
14   thinking in my mind and I can't help it.
15                  THE COURT: All right.    I have no earthly
16   idea what the facts are in this case.    I have no idea
17   what the facts are in this case and neither do you.     You
18   haven't been presented with any facts.    And I recognize
19   that you have a scenario in your mind about what the
20   facts are.   So, do you think you could listen to the
21   facts and be fair and impartial, or are you already down
22   the road about what you think happened?
23                  VENIREPERSON DIMEFF:   I'm a normal person.
24   I could listen, but I just want to be fair to the
25   defendant too.    That's all.   And I'm just being honest,
                                                                 125



1    and I hate even standing here.
2                  THE COURT:    Well, I understand.
3                  VENIREPERSON DIMEFF: I would be happy to
4    serve as a juror.   I have no problem with that, but I'm
5    just trying to be honest.
6                  THE COURT: Okay.     And is your -- I mean,
7    if these were to be the facts -- fortunately for me, I
8    have no clue -- is your belief about who should win and
9    who should lose already set before you've heard any
10   evidence?
11                 VENIREPERSON DIMEFF:   No, no.
12                 THE COURT: Okay.
13                 VENIREPERSON DIMEFF:   It's not like, oh,
14   the people building the house should always win.      No.
15                 THE COURT: Okay. You understand that
16   your job as a juror would be to listen to the case and
17   find the facts.   You would evaluate the credibility of
18   the witnesses, and you would decide what you think the
19   facts are.   And you would answer questions that were
20   given to you by the judge.    And the judge would decide
21   what the law is that applies.    So do you have any
22   unshakeable beliefs about any of the small number of
23   issues you've heardabout from the lawyers today that
24   will just make you --
25                 VENIREPERSON DIMEFF:   Nothing unshakeable.
                                                            126



1                 THE COURT: Okay. Anything, Mr. Aldous?
2                 MR. ALDOUS: No, Your Honor.
3                 THE COURT:   Anything, Mr. Chaiken?
4                 MR. CHAIKEN: I do have a couple of
5    questions.
6                 Mrs. Dimeff, I heard you say that you had
7    concerns about your ability to be fair to the defendant.
8                 VENIREPERSON DIMEFF:   Well, based on the
9    preconceived notion that I have right now, this is --
10   I'm just being honest with you with what I'm thinking.
11                MR. CHAIKEN: Sure.     Well, I appreciate
12   your honesty, and I don't mean to put you on the spot.
13   I just want to understand where you're coming from so
14   that we can make an informed decision about your ability
15   to be on the jury.
16                Would it be fair to say that based on what
17   you've heard today and because of your preconceived
18   notions, the defendant -- I don't know which defendant
19   you're talking about, but whichever one you're talking
20   about is starting sort of behind the starting blocka
21   little bit in your eyes in this case, not on equal
22   footing?
23                VENIREPERSON DIMEFF:   They are.   Just by
24   what I've heard today, yes.
25                MR. CHAIKEN: Okay.     And your concerns of
                                                             127



1    those preconceived notions are such that you won't be
2    able to divorce yourself from those notions and serve
3    from beginning to end as a fair and impartial juror?
4                  VENIREPERSON DIMEFF:   I could -- I mean,
5    like I said, I probably -- I know I know nothing about
6    it.   But I could flip flop if there were just all these
7    facts that say otherwise.   I mean, I am fair.
8                  MR. CHAIKEN: But you -- but you have a
9    preconceived bias against certain parties who are
10   members of the industry that you have just indicated
11   earlier just based upon your personal experience?
12                 VENIREPERSON DIMEFF:   I do a little bit.
13                 MR. CHAIKEN: Would you say that those
14   biases do effect your ability to come into the courtroom
15   with an open mind, to listen to everybody from beginning
16   to end, and to separate those biases out and just decide
17   the case based on the evidence?
18                 VENIREPERSON DIMEFF:   I think I could.   I
19   mean, if I heard a strong reason to -- that would
20   convince me otherwise, of course, I would listen to
21   that.
22                 MR. CHAIKEN: I have nothing else.
23                 THE COURT: Mr. Hagood, anything from you?
24                 MR. HAGOOD:   No.
25                 THE COURT: Thank you, madam.   You may go
                                                             128



1    back out in the hallway.
2                 Okay.   I think the next person who
3    indicated the she needed to speak with us is Number 17,
4    Ms. Watts.
5                 Ms. Watts, would you come on up?
6                 I'm just trying to get through the people
7    who said they havehardships, but Ms. Watts had also
8    said she wanted to speak privately with us.
9                 Good afternoon, Ms. Watts.   Much earlier
10   on, you said you wanted to speak privately with us about
11   an issue.
12                VENIREPERSON WATTS:   It's about a lawsuit
13   that I'm currently involved in.
14                THE COURT: Okay.     And what kind of case
15   is that?
16                VENIREPERSON WATTS:   It's a Fun 5 lotto
17   ticket.
18                THE COURT: I'm sorry.     It's a what?
19                VENIREPERSON WATTS:   It's a Fun 5 lotto
20   ticket.
21                THE COURT: Oh, a lotto ticket.      Okay.
22   And did you bring the lawsuit against the lotto people?
23                VENIREPERSON WATTS: Well, I mean, a
24   group.
25                THE COURT: There's a group ofyou who are
                                                              129



1    suing the lotto people?
2                   VENIREPERSON WATTS:   Yes.
3                   THE COURT: They didn't pay you something
4    you thought you should have gotten?
5                   VENIREPERSON WATTS:   Right.
6                   THE COURT: Okay. Is there anything about
7    that lawsuit and your being a party to that lawsuit that
8    you think would make you unable to listen to the facts
9    of this lawsuit?
10                  VENIREPERSON WATTS: Well, I'm one of the
11   people that jump
                    s to conclusions.
12                  THE COURT: Right, right.
13                  VENIREPERSON WATTS:   And it's kind of hard
14   for me to change my mind.
15                  THE COURT: Okay. So you just don't think
16   you could be fair?
17                  VENIREPERSON WATTS:   I don't think so.
18                  THE COURT: Okay.    Well, I appreciate it.
19                  All right.   Anybody have any questions for
20   her?
21                  MR. ALDOUS: No, Your Honor.
22                  MR. HAGOOD: No, Your Honor.
23                  THE COURT: Okay.    You may go back out in
24   the hallway.   Thank you, ma'am.
25                  Okay. The next person who asked to speak
                                                               130



1    with us is 19.
2                   Michael Ramirez, come on down.     Good
3    afternoon.
4                   VENIREPERSON RAMIREZ:   Hi, how are you?
5                   THE COURT: What's your time problem?
6                   VENIREPERSON RAMIREZ:   I have a doctor's
7    appointment on Wednesday of next week. I just recently
8    switched over to a medication, and I have labs due
9    Wednesday.   The following week, my doctor calls me in
10   for a conference.    Andthe following week, I go to
11   Hawaii and get married, so I would have to wait a number
12   of months.
13                  THE COURT: Oh, goodness.
14                  VENIREPERSON RAMIREZ:   I have labs done to
15   see if the medication is two a day or one a day.
16                  THE COURT: Okay.   And anybody have any
17   questions for Mr. Ramirez?
18                  MR. ALDOUS: What time of day is your
19   appointment?
20                  VENIREPERSON RAMIREZ:   At 9:00.
21                  MR. ALDOUS: And do you know how long it
22   typically lasts?
23                  VENIREPERSON RAMIREZ:   Usually about an
24   hour.   He wants to talk to me and make sure everything
25   is going good, everything -- you know.    I usually have
                                                              131



1    to wait for labs. I have to get in line and wait for
2    labs and they draw blood.
3                  MR. ALDOUS: But -- and part of the reason
4    I'm asking is I've been informed that Judge Benson will
5    hear her docket in the mornings.   So she starts hearings
6    at 9:00. And if she doesn't start court until 10:00,
7    does that -- is that okay with your schedule?
8                  VENIREPERSON RAMIREZ:     I could probably be
9    here at 10:30 or 11:00.
10                 MR. ALDOUS: Okay.
11                 THE COURT: That's Wednesday of next week.
12                 VENIREPERSON RAMIREZ:     That's Wednesday of
13   next week.   That would be the issue.
14                 MR. ALDOUS: So if that time issue, that
15   one block of time, got resolved, would you have any
16   problems serving as a juror otherwise?
17                 VENIREPERSON RAMIREZ:     No, none.
18                 MR. ALDOUS: All right.     Thank you.
19                 VENIREPERSON RAMIREZ:     That's why my mind
20   is wandering about the wedding and 50 people.       That's on
21   my mind.
22                 THE COURT: That's a lot to have on your
23   mind.
24                 VENIREPERSON RAMIREZ:     It is a lot.
25                 MR. CHAIKEN: Could I ask a question?
                                                              132



1                  THE COURT: Sure.
2                  MR. CHAIKEN: And I don't mean to pry.
3    I've gone to new doctors before.   I've never had an
4    experience going to their offices and a lot of times I
5    have an appointment set at 9:00 o'clock and I don't get
6    seen until 2:00. Do you know anything about this
7    doctor; for instance, whether or not you'll actually be
8    seen at the time of your appointment
                                       ?
9                  VENIREPERSON RAMIREZ:   I usually get seen
10   in 20 minutes.
11                 MR. CHAIKEN: Okay.   And is it fair to say
12   because this is your first appointment, you're not
13   really sure how long it's going to last?
14                 VENIREPERSON RAMIREZ:   It's the same
15   doctor.   It's just a different medication.
16                 MR. CHAIKEN: Oh, I thought you said you
17   were going to a new doctor.
18                 VENIREPERSON RAMIREZ:   No, for new meds.
19   I recently switchedmeds.
20                 MR. CHAIKEN: Okay.   Thank you.     Fair
21   enough.
22                 THE COURT: Thank you, sir.      You may step
23   out in the hallway.
24                 Okay.   Dr. Palmer, come on down.   Good
25   afternoon.
                                                               133



1                    VENIREPERSON PALMER:   Hi.   Yes.   I
2    rescheduled for these three days because my schedule is
3    totally clear.    But on Monday, I have a full clinic that
4    I'm personally responsible for
                                 .
5                    THE COURT: You said you're a
6    nephrologist?
7                    VENIREPERSON PALMER:   I'm a nephrologist
                                                             .
8    And I start the in-patient dialysis service at Parkland
9    over the weekend through Monday.And then, more
10   importantly, on Tuesday I'm a visiting professordown at
11   the University of Houston.     That's been arranged. And
12   on Thursday, I'm a visiting professor out in California.
13                   THE COURT: Goodness.
14                   VENIREPERSON PALMER:   Those are things
15   already that have been on the books for several weeks.
16                   THE COURT: Anybody have any questions for
17   him?
18                   MR. ALDOUS: No, Your Honor.
19                   THE COURT: Mr. Chaiken?
20                   MR. CHAIKEN: I don't have any questions.
21                   MR. HAGOOD:   No, Your Honor.
22                   THE COURT: Can we have an agreement on
23   him?
24                   MR. ALDOUS: I agree.
25                   MR. CHAIKEN: I have no opposition.
                                                              134



1                    MR. HAGOOD: You don't oppose the
2    agreement?
3                    MR. CHAIKEN: I don't oppose it.
4                    MR. HAGOOD: Whatever Mr. Chaiken wants, I
5    want.
6                    THE COURT: All right.    Dr. Palmer, we're
7    going to go ahead and excuse you.      If you'll just leave
8    your juror badge.    And if you brought your number up,
9    you can just leave it there.     And thank you.
10                   VENIREPERSON PALMER:   Thank you.
11                   THE COURT: Okay.    I think our next person
12   was Number 25; is that correct
                                  ?
13                   MR. HAGOOD: No, Your Honor. I don't
14   think we're going to get that far.
15                   THE COURT:   Well, let's just go ahead and
16   do it anyway.
17                   MR. HAGOOD: Okay.
18                   THE COURT: Come on up, Ms. Duffey.    What
19   was your concern about your schedule, please, ma'am?
20                   VENIREPERSON DUFFEY:   My concern is I'm a
21   diabetic and I have an insulin three times a day.     I'm
22   also raising two grandkids, and one has to go to school
23   also this year.    And he has no way of getting there.
24   And today I had to make him miss because I had to be
25   here.
                                                                135



1                    THE COURT: Oh, well, I think that you
2    probably have an excuse.
3                    VENIREPERSON DUFFEY:   And the next week
4    following, I have --
5                    THE COURT: You don't need to tell me
6    anymore.    I think you actually have an excuse under the
7    law.     And we're going to say thank you for being here
8    today.    And if you'll just leave us your juror badge,
9    you may be excused.
10                   VENIREPERSON DUFFEY:   Thank you.
11                   THE COURT: Thank you very much.
12                   MR. CHAIKEN: Thank you.     Good luck to
13   you.
14                   THE COURT: Okay.   Ms. Haggerty, come on
15   down.    Good afternoon.   SO tell me what your concern is
16   about your time.
17                   VENIREPERSON HAGGERTY:    Oh, the only thing
18   is I'm getting ready to retire.    And I don't know if
19   they're going to pay like they used to, so I need to
20   make a call.    At this time I work.     If we -- the
21   schedule for like next week that I'll need to be there.
22   I know if you're sick or something, but right now I just
23   need to see -- the company came in, so I don't know that
24   this new company will they do like --
25                   THE COURT: Yes, I understand.
                                                               136



1    Ms. Haggerty, in all likelihood, since there's a small
2    number of people who are going to be seated, we probably
3    won't need to know the answers to all these things.       If
4    we do, we'll give you the high sign, and let's see if
5    you can find out.      But right now if you'll go back out
6    in the hallway.
7                   VENIREPERSON HAGGERTY:    Okay.
8                   THE COURT: Thank you.
9                   Okay.    According to my notes, those we
10   have excused for one reason or another are 1, 23, 25,
11   and 29.   Is that everybody else's -- consistentwith
12   everybody else's notes.
13                  MR. ALDOUS: Yes, Your Honor.
14                  MR. HAGOOD: Seventeen is also gone.
15                  THE COURT: Oh, is 17 gone?
16                  MR. CHAIKEN: No.     You haven't made a
17   decision on that.
18                  THE COURT:    Well, we haven't talked about
19   -- I mean, we haven't talked about for the purposes of
20   cause yet.   I do have a couple of people I'm sure we'll
21   end up talking about. But right now I was just talking
22   about people who either had language issues or time
23   issues.   And so I think we've got those four.     And then
24   there was --
25                  MR. ALDOUS: Number 2.
                                                              137



1                   THE COURT: -- Number 2 y'allwanted to
2    talk to and find out how urgent this was.
3                   So, Sheriff, could you ask Aaron Rodgers,
4    Number 2, to come in and talk to us a minute?
5                   Come on up, Mr. Rodgers.    I justhad a
6    couple of quick questions about your travel schedule
7    next week.   You indicated that you would be headed out
8    of town first thing on Thursday, I believe you said.
9                   VENIREPERSON RODGERS:   Correct.
10                  THE COURT: And I just wanted to have an
11   understanding of was this business or pleasure, and how
12   etched in stone is it?
13                  VENIREPERSON RODGERS:   It's pleasure, but
14   it's for Father's Day.   I have a trip planned to go home
15   to Illinois.
16                  THE COURT: Okay.   And --
17                  VENIREPERSON RODGERS:   It's the whole
18   family all getting together.
19                  THE COURT: All right.   Anybody have any
20   questions for him?
21                  MR. ALDOUS: No.    No questions.
22                  THE COURT: Any questions, folks?
23                  MR. CHAIKEN: No.
24                  THE COURT: Okay.   You can go back out in
25   the hallway.
                                                              138



1                  What do y'all want to do with Number 2?
2    Do you want to agree on him or do you -- what do you
3    want to do?
4                  MR. HAGOOD: We'd agree.
5                  MR. ALDOUS: I'm a father.   I'll let him
6    go.
7                  THE COURT: Okay.
8                  MR. CHAIKEN: We'll agree.
9                  THE COURT: All right.    So Number 2 is
10   also on the excused list.
11                 So now we're going to start with the
12   plaintiff and ask you for any requested strikes for
13   cause purposes.   And I would appreciate it if we would
14   start numerically, you know, one through whatever.      And
15   this actually would not be one, but -- and then we'll
16   work through them one at a time.
17                 MR. ALDOUS: None, Your Honor
                                              .
18                 THE COURT: None, okay.    That made that
19   easy.
20                 MR. ALDOUS: Would you like me to do some?
21                 THE COURT: No, no.   That made that easy.
22                 Mr. Hagood?
23                 MR. HAGOOD: Number 4, Your Honor and
24   Number 17.
25                 THE COURT: All right.    Let's talk about
                                                              139



1    Number 4 first.   What do you think she said that allows
2    you to strike her for cause?
3                 MR. HAGOOD: I think she stated she was
4    biased, Judge.    She said that she wouldn't start -- she
5    would not start the plaintiff and the defendant at the
6    same starting line.   One would be ahead of the other.
7    She said she had preconceived notions.   I just think in
8    the totality of the interrogation of Number 4, she's not
9    a fair and impartial juror.    I know she wants to be.   I
10   know she'll try, but going into this trial, she doesn't
11   wear the same hatas the other jurors.    I just feel that
12   she's not a qualified juror.
13                THE COURT: Mr. Chaiken?
14                MR. CHAIKEN: May I comment on that
                                                   ?
15                THE COURT: Sure.
16                MR. CHAIKEN: I wrote down she said--
17   something that struck me.   She said you could convince
18   me otherwise with a strong reason.   Well, I think that's
19   evidence of her bias right there.
20                THE COURT: I heard that.
21                MR. CHAIKEN: I'll go one step further.
22   On behalf of Mr. Hickok, she specifically said in the
23   beginning of the questioning of her that she could not
24   be fair to the defendant.   She didn't say which
25   defendant, but she said to the defendant, indicating
                                                              140



1    that -- again I don't even know which defense is
2    starting far behind.   But due to her bias about people
3    in the industry, based on her experience, she already
4    has an idea of why she would not be able to be fair and
5    impartial.
6                    THE COURT: Comment, Mr. Aldous?
7                    MR. ALDOUS: This is why I didn't go into
8    the facts of the case because she was all mixed up on
9    the facts of this case.   She said that she --
10                   THE COURT: She made up the facts of the
11   case.
12                   MR. ALDOUS: Well, I mean, she said she
13   didn't have a bias against the contractor.   We're the
14   contractor.   So I think that you cannot acquire a bias
15   based upon the facts that you're fed during voir dire
16   unless it's an express bias against that particular type
17   of case, breach of contract, and/or a specific party.
18   But they didn't get the party. They got -- they got the
19   contractor, who is us.    So I don't believe that they've
20   met the test.
21                   MR. CHAIKEN: I'd like to comment in
22   response if I may.    I think that she specifically said
23   is that she had a particular bias against the party who
24   was sued under a contract under a breach of contractin
25   that industry.    And her words were specifically -- I
                                                             141



1    have written them down -- that because a party was sued
2    for breach of contract that she had a concern with
3    people in the industry. She would tend to favor the
4    party who was sued, and that's why she said specifically
5    that she was biased against the defendant from the get
6    go.
7                 THE COURT: Though I do not think that the
8    notion of starting behind is any kind of a test based on
9    the case law, I do believe in the totality of what she
10   said that I'm going to grant the defendant's strike for
11   cause of Number 4.
12                Mr. -- I'm sorry.     Mr. Hagood, who was the
13   other?
14                MR. HAGOOD: Seventeen, Your Honor.
15                THE COURT: Any disagreements about 17?
16                MR. ALDOUS: We don't agree.     I mean, the
17   fact that she said that she could --was impressionable,
18   I mean that -- I don't think that that meets any sort of
19   test for being struck for cause.
20                THE COURT: My concern is that she said it
21   effects her ability to be fair.    And those were the
22   words I wrote down.
23                MR. CHAIKEN: I actually wrote down.
24                MR. ALDOUS: Would you please not write
25   that kind of stuff down?
                                                              142



1                    MR. CHAIKEN: What I wrote down is at the
2    end of her examination, she said, "I can't be fair,"
3    specifically.
4                    MR. ALDOUS: I have this thing in my ear
5    that I cannot hear stuff like that.
6                    THE COURT: I understand.    But,
7    unfortunately, I do think she disqualified herself and
8    Number 17, defendant's cause.
9                    Do you have any?
10                   MR. CHAIKEN: What do --
11                   MR. ALDOUS: If he has to start it like
12   that, then --
13                   THE COURT: No.     I've already granted the
14   cause for Number 17.
15                   MR. CHAIKEN: I don't have grounds for
16   cause, but I am concerned with --I think we all should
17   be concerned about Mr. Ramirez, Number 19, and his --
18                   MR. ALDOUS: No, no, no.    Look and let me
19   tell you what -- because I know that Judge Benson holds
20   her docket in the morning.    And I just don't think it's
21   as big a time crunch as we think.
22                   MR. CHAIKEN: My suspicion is that we'll
23   remind ourselves come Wednesday
                                   with a bunch of lawyers
24   and witnesses and jurors waiting around.
25                   THE COURT: You could.     You could
                                                       .
                                                              143



1                 MR. CHAIKEN: Waiting around for a guy
2    who's not going to be real thrilled that he was selected
3    to be on a jury.
4                 THE COURT: Sheriff, about when does Judge
5    Benson start her trial on days where she's got hearings
6    first?
7                 THE BAILIFF: It just depends on how long
8    the hearings go, Judge.   I can't pinpoint.
9                 THE COURT: Okay. In your experience, has
10   she waited for people who maybe had a doctor's
11   appointment or something and could be here, but --
12                THE BAILIFF: If they're on the jury, she
13   doesn't have much of a choice unless theattorneys agree
14   to go with a five-panel jury or whatever.
15                THE COURT: Right.    I mean, I certainly
16   don't think that's cause.   And if you want to exercise a
17   peremptory, that's certainly your right to do so.
18                Anything else on request for cause
19   strikes?
20                MR. CHAIKEN: Defendant Hickok has no
21   other -- well, let me look at one other thing here.      No
22   other motions for cause by defendant.
23                THE COURT: All right.      Then let me go
24   back over my notes to tell you who I have as having been
25   excused for one reason or another.   Number 1, Number 4,
                                                             144



1    Number 7 -- Number 2, pardon me -- Number 17, Number 23,
2    Number 25, and Number 29.   Is that consistent with
3    everybody else's notes?
4                 MR. CHAIKEN: I may have missed it.       I had
5    1, 2, 4, 17 and then it goes to 23.
6                 THE COURT: That's what I had too.
7                 MR. HAGOOD: And 25 too.
8                 THE COURT: Yes.    And 29.
9                 MR. ALDOUS: She just got 2 and 4 --
10                THE COURT: I did? I got them out of
11   order because I hadn't written them down in order.
12                Sheriff, how do you do you strikes? Do
13   you have a specialstrike sheet, or do you have them --
14                THE BAILIFF:    No, we just have them--
15                THE COURT: Would you-all have -- take the
16   sheriff's lead here since everybody does it differently?
17                THE BAILIFF: All we need to do is put
18   defense or plaintiff up at the top. And it doesn't
19   matter; you can use just any three things here.   Just
20   put the last name and the corresponding number of the
21   jurors that you strike.
22                THE COURT: All right.    And do you all
23   have places to go?
24                MR. CHAIKEN: How are we doing the
25   alternate?
                                                             145



1                  THE COURT: Once we do -- you guys are
2    splitting your strikes and you have your strikes is my
3    understanding. And once we have I understand you have
4    one alternate.   So once we have -- I understand you're
5    having one alternate.    So once we
                                       figure out who are the
6    six, then the alternate comes from the next three.
7    Would that be right?
8                  MR. ALDOUS: That's right.
9                  THE COURT: Because each of you would get
10   a strike and then we would have one survivor.
11                 MR. ALDOUS: So we wait until after.
12                 THE COURT: Yes.   You wait until after.
13   So you're only exercising the normal number of strikes
14   right now.   And then once we figure out where you
15   stopped, then it will be the next three in line from
16   whom you will --
17                 MR. HAGOOD: We all agree the panel
18   includes up to 15 -- to and including 15.
19                 MR. ALDOUS: I have up to 15.
20                 MR. CHAIKEN: Your Honor, I need to make a
21   motion for additional strikes on the grounds that there
22   is an antagonist of interest in the case between
23   defendant Hickok and defendant VSDH.   More specifically,
24   this is a case that involves a suit alleging breach of a
25   buyback obligation in a contract and an allegation that
                                                              146



1    Mr. Hickok is liable for damages caused by that breach
2    as a guarantor of the obligation.
3                  There is a provision in the contract that
4    has a sole and exclusive remedy provision that allows
5    only for the recovery of specific performance by
6    striking the typical remedies in the TREC contract.
7    There was language in an addendum that said that one of
8    the parties had agreed to reinstate the stricken
9    remedies. The party that agreed in the addendum to
10   reinstate the stricken remedies, who was the seller, who
11   was defined as VSDH, which is the entity defendant in
12   this case.
13                 There's no agreement by Mr. Hickok.   He
14   expressly stated in the reinstatement of the exclusivity
15   remedy provision, and that had been previously stricken
16   that is.   And he is nevertheless being sued for damages.
17   His position in the case is even if there is a breach
18   and even if there is liability for damages, he cannot be
19   held liable under the exclusive remedies provision,
20   which will cause his defense to be antagonistic to some
21   degree to that of VSDH.   So for the reason that there is
22   antagonism on those grounds, he should be permitted
                                                       to
23   have additional strikes because the parties are not
24   aligned.
25                 THE COURT: My understanding is that Judge
                                                            147



1    Benson has heard this motion and has denied this motion.
2    Is that accurate, Counsel?
3                  MR. ALDOUS: That is accurate, Your Honor.
4                  MR. CHAIKEN: Well, the judge heard the
5    motion, but not in the context of having heard voir
6    dire.   And my understanding of the law is that if the
7    antagonism has been demonstrated throughout the voir
8    dire process -- which I spent timetalking about and
9    trying to talk aboutguaranty issues specifically that
10   nobody else talked about -- then the Court can consider
11   the motion based upon the antagonism demonstrated during
12   the voir dire process.
13                 THE COURT: Denied.
14                 MR. ALDOUS: Thank you.
15                 THE COURT: Okay.
16                 MR. ALDOUS: How much time you want to
17   give us?
18                 THE COURT: Just make it as quick as you
19   can.
20                 (Recess taken to make strikes)
21                 (Venire panel enters the courtroom)
22                 THE COURT: Ladies and gentlemen
                                                 , you may
23   be seated.
24                 Ladies and gentlemen of the jury
                                                  panel, we
25   very much appreciate your patience and cooperation
                                                              148



1    today.   I'm now going to read the names of those of you
2    who have been selected to serve on the jury.    As I call
3    your name, please come forward and take your seat in the
4    jury box.   Number 1 Juror is, as I understand it from
5    the bailiff, will be sitting here closest to the -- to
6    the court reporter.   And that lucky individual is Jose
7    Lejia; Number 2, Shirley McCoy; Number 3, Raul
8    Villanueva; Number 4, Jessica Pearson; Number 5,
9    Christopher Richie; Number 6, Grace Gonzales; and lucky
10   Number 7 is Henry Berg.
11                 All right. When Mr. Berg gets up there, if
12   you-all will raise your right hands as soon as he gets
13   up there, we'll swear you in.
14                 (Swear in the jury)
15                 THE COURT: You may be seated.
16                 Those of you who have not been asked to
17   stay are excused.    Please leave your badges and your
18   numbers in your chairs. Oh, I'm sorry. The bailiff
19   needs your badges.    Thank you one again for your service
20   here.
21                 Ma'am, I'm sorry.    We may have made you a
22   little bit late and I apologize.
23                 Ladies and gentlemen
                                      , because the trial is
24   actually going to start on Monday, we're not going to do
25   anything more.   But there are a couple of housekeeping
                                                               149



1    things I wanted to cover with you.    There should be a
2    card for the Court there right in front of you. Please
3    take that with you.   If for any reason you have a
4    problem being here Monday at 9:30, you need to let the
5    Court know as soon as possible
                                  .
6                 Everybody has been given an opportunity to
7    tell me they have a problem, they can't come; so I'm
8    hoping I'm not going to hear any of that or Judge Benson
9    isn't going to hear any of that.   If somebody gets sick
10   or something, keep those with you.
11                And as soon as the -- as soon as he is
12   finished excusing the rest of the panel, he's going to
13   show you where the jury room is, which is back there.
14   But he's going to show you that and tell you a little
15   bit more about the rules of the road for this Court. So
16   if you-all will just wait just a second for him, I know
17   everybody is starving
                         .
18                Yes, ma'am?
19                THE COURT.
20                UNIDENTIFIED JUROR
                                   :      When it comes to
21   work, what do we tell them
                              ?
22                THE COURT: You can tell them you've been
23   seated on a jury and you have that number.    So if your
24   work needs to verify that you, you know, need to be
25   here, they can certainly call and verify that. You may
                                                               150



1    not -- I do not know whether your individual employers,
2    you know, pay for your jury service; but you, under the
3    law, cannot be terminated for serving on a jury.
4                   Anybody else have any questions?   Yes,
5    ma'am.
6                   JUROR NO. 6:   Do we still get discounts on
7    our parking?   I know we have to turn that in today.
8                   THE COURT: Right. My recollection is it
9    was one day.   Is it just one daythat they get
10   discounted parking, or do they get discounted parking
11   everyday?
12                  THE BAILIFF: If you parked under Old Red,
13   these things on your jury summons are only good for one
14   day.   When you come down Monday, you pull that little
15   tab out of the machine.   Just take it down to the
16   central jury room.   They will validate it and it will
17   only cost you $3 because youare technically still on
18   jury duty.
19                  THE COURT: Okay.    Sheriff, I have told
20   them that you are going to show them around a little bit
21   and give them some more specific instructions.    And so
22   I've sworn at them, and they are yours.    Thank you.
23                  Thank you, ladies and gentlemen
                                                  .
24                  (Jury exits the courtroom)
25                  THE COURT: Anything else for the record,
                                                        151



1    folks --
2               MR. ALDOUS: No, Your Honor.
3               THE COURT: -- before you come back on
4    Monday?
5               MR. HAGOOD: No, Your Honor.
6               THE COURT: Thank you.   You may be
7    excused.
8               (Proceedings concluded for the day)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
                                                         152



1    STATE OF TEXAS         )
2    COUNTY OF DALLAS       )
3            I, Cathye Moreno, Official Court Reporter in
4    and for the County Court of Dallas County, Texas, County
5    Court At Law Number One, State of Texas, do hereby
6    certify that to the best of my ability the above and
7    foregoing contains a true and correct transcription of
8    all portions of evidence and proceedings requested in
9    writing to be included in the Reporter's Record, in the
10   above-styled and -numbered cause, all of which occurred
11   in open court or in chambers and were reported by me.
12           I further certify that this Reporter's Record
13   of the proceedings truly and correctly reflects the
14   exhibits, if any, admitted by the respective parties.
15           WITNESS MY OFFICIAL HAND this the 27th of
16   October, 2015.
17                      /s/ Cathye G. Moreno
18                      Cathye G. Moreno, Texas CSR #6076
                        Expiration Date: 12/31/16
19                      Official Court Reporter
                        County Court at Law No. 1
20                      600 Commerce Street, Suite 550
                        Dallas, Texas 75202
21                       cathyemoreno@sbcglobal.
                                              net
                        (214)653-7496
22
23
24
25
TAB 25
                                                              1



1                         REPORTER'S RECORD
                       VOLUME 3 OF 10 VOLUMES
2                      CAUSE NO. CC-09-05232-A

3    VSDH VAQUERO VENTURE, LTD.       )IN THE COUNTY COURT
                                      )
4      Plaintiff/Counter-Defendant
                                 ,    )
                                      )
5    V.                               )
                                      )
6    KEN GROSS and BETSY GROSS        )AT LAW NO. 1
                                      )
7      Defendants/Counter-Plaintiffs, )
                                      )
8    V.                               )
                                      )
9    EVAN L. SHAW and DOUGLAS M.      )
     HICKOK                           )
10                                    )
       Intervenors/Counter-
                          Defendants, )DALLAS COUNTY, TEXAS
11
12
13   -------------------------------------------------------

14                       TRIAL ON THE MERITS
15   -------------------------------------------------------
16
17              On the 15th day of June 2015, the following

18   proceedings came on to be heard within the presence of

19   a jury in the above-entitled and -numbered cause before
20   the Honorable D'METRIA BENSON
                                 , judge presiding, held in
21   Dallas, Dallas County, Texas.
22              Proceedings reported by computerized stenotype
23   machine.    Reporter's Record produced by computer-aided
24   transcription.
25
                                                  2



1                         APPEARANCES:
2    MR. STEVEN E. ALDOUS
     SBN 00982100
3    Forshey Prostok, LLP
     500 Crescent Court
4    Suite 240
     Dallas, Texas 75201
5    (214)716-2100
     ATTORNEY FOR DEFENDANTS/COUNTER-PLAINTIFFS
6    KEN GROSS and BETSY GROSS
7       - AND -

8    MR. KENNETH B. CHAIKEN
     SBN 04057800
9    Chaiken & Chaiken
                     , PC
     Legacy Town Center III
10   5801 Tennyson Parkway
     Suite 440
11   Plano, TX 75024
     (214)265-0250
12   ATTORNEY FOR INTERVENOR/COUNTER-DEFENDANT
     DOUGLAS M. HICKOK
13
        - AND -
14
     MR. EVAN LANE (VAN) SHAW
15   SBN 18140500
     Law Offices of Van Shaw
16   2723 Fairmount Street
     Dallas, Texas 75201
17   (214) 754-7110
     ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT
18   VSDH VAQUERO VENTURE, LTD;
     INTERVENOR, VAN SHAW; and
19   THIRD-PARTY DEFENDANTS
     VSDH VAQUERO HOMES, INC. AND
20   VSDH HOMES, INC.
21
22
23
24
25
                                                               3



1                            INDEX

2    JUNE 15, 2015                               PAGE    VOL.
3    PROCEEDINGS..............................    9        3
4    EXHIBIT DISCUSSIONS
                       ......................     9        3
5    OPENING STATEMENTS BY MR. ALDOUS
                                   .........     14        3
6    OPENING STATEMENTS BY MR. SHAW
                                 ...........     24        3
7    OPENING STATEMENTS BY MR.CHAIKEN........    31        3
8
     GROSSES'
9    WITNESSES           Direct      Cross   Voir Dire   Vol.
     Douglas Hickok        39         --         --        3
10
11   MOTION FOR MISTRIAL
                       ......................    127       3

12   END OF PROCEEDINGS....................... 132         3
13   REPORTER'S CERTIFICATE................... 133         3
14
15                       EXHIBIT INDEX

16   GROSSES'
     NO.     DESCRIPTION          OFFERED    ADMITTED    VOL.
17    1      May 5, 2007 Fax from    10         10         3
            Mr. Gross to Buttemiller
18
      3     New Home Contract, First 10          10        3
19          Amendment, Addendum A & B
20    4     Appraisal Invoice and    10          10        3
            Summary Appraisal Report
21
      5     Settlement Statement        10       10        3
22          June 28, 2007
23   15     Construction Loan           10       10        3
            Documents
24
     22     First Horizon Builder's     10       10        3
25          Soft Cost Draw Request
                                                               4



1                   EXHIBIT INDEX CONTINUED

2    GROSSES'
     NO.     DESCRIPTION           OFFERED    ADMITTED   VOL.
3
     24     October 16, 2008 Fax     10          10       3
4           from Mr. Gross to Hickok
            Regarding Improvements
5
     25     October 16, 2008 Fax      10         10        3
6           Confirmation Sheet
7    26     June 26, 2008 Faxfrom    10       10           3
            Mr. Gross to Kramer
8           Regarding Inspection and Warranty
9    27     October 31, 2008 Email   10          10        3
            from Mr. Gross to Hickok
10
11   30     February 23, 2009Email   10          10        3
            from Mr. Gross to Hickok
12          Regarding Addition
13   31     April 27, 2009 Fax from   10         10        3
            the Grosses to VSDH
14
     32     April 27, 2009 Fax        10         10        3
15          Confirmation
16   33     May 1, 2009 Email from   10          10        3
            the Grosses to Hickok and
17          Confirmation from Hickok

18   34     April 27, 2009 Email from10          10        3
            Mr. Gross to Hickok
19          Regarding Buyback Option
20   35     May 1, 2009 Email Chain 10           10        3
            between Mrs. Gross and Hickok
21
     38     June 28, 2009 Email from 10          10        3
22          Mr. Gross to Shaw and Hickok
23   42     Settlement Statement      10         10        3
            August 27, 2009
24
     43     Escrow Agreement          10         10        3
25          August 28, 2009
                                                              5



1                         EXHIBIT INDEX CONTINUED

2    GROSSES'
     NO.     DESCRIPTION           OFFERED   ADMITTED   VOL.
3    44      General Warranty Deed    10        10        3
             August 27, 2009
4
     45     Affidavit as to Debts    10         10        3
5           and Liens, Parties in
            Possession and Third Party
6           Claims and Easements with
            Indemnity Agreement
7
     46     Payoff Acceptance        10       10          3
8           Affidavit, Non-foreign Person
            Affidavit, Seller's Affidavit
9           Agreement for Legal Services,
            Agreement Concerning Association
10          Assessments and Resale Certificate
11   47     Real Estate Contract      10        10        3
            Between the Grosses and
12          Ms. Browning, Addendums
            and Intermediary Notice
13
     51     Amendment to Real Estate 10         10        3
14          Contract August 27, 2009
15   52     Residential Real Estate   10        10        3
            Listing Agreement
16
     54     Email Chain Ending on    116        116       3
17          June 7, 2009 Between Shaw,
            Hickok and Mrs. Gross
18
     59     Email from Mr. Gross to 10          10        3
19          Hickok, Shaw and Mrs. Gross
            August 18, 2009 Regarding
20          Sale of Home
21   60     Letter to Jana Reist to   10        10        3
            Shaw August 19, 2009
22
     65     May 18, 2009 Email       10         10        3
23          Between Shaw and Mrs. Gross
24   66     April 29, 2009 Email     10         10        3
            Chain between Hickok, Shaw,
25          and Mr. Gross
                                                               6



1                   EXHIBIT INDEX CONTINUED

2    GROSSES'
     NO.     DESCRIPTION           OFFERED    ADMITTED   VOL.
3    68     June 21, 2007 Sommerfelt 10          10        3
             Email Chain to Hickok, Shaw,
4            Stern and Buttemiller
5    83     May 18, 209 Email Chain 10           10        3
            Between Shaw and Mrs. Gross
6
     84     Email Ending May 17,2009 10          10        3
7           Between Shaw and Mrs. Gross
8    88     June 7, 2009 Letter from   10        10        3
            Shaw to Mrs. Gross
9
     89     Email Chain Ending       10          10        3
10          June 6, 2009 Between Shaw,
            Hickok, and Mrs. Gross
11
     91     June 28, 2009 Email        10        10        3
12          from Mr. Gross to Shaw,
            Hickok and Mrs. Gross
13
     92     Email Chain Ending       10          10        3
14          April 29, 2009 Between
            Hickok, Shaw, and Sumner
15          Attaching Contract of Sale
16   93     Email Chain Ending       10          10        3
            April 29, 2009 Between
17          Shaw, Hickok and Sumner
            Attaching First Amendment
18
     94     Email Chain Ending       10          10        3
19          April 29, 2009 Between
            Shaw, Hickok, and Sumner
20          Attaching Changes to Contract
21   96     Amendment to Listing       10        10        3
22   98     Settlement Statement       10        10        3
            Between the Grosses and
23          VSDH June 19, 2007
24   105    Email from Hickok to     10          10        3
            Buttemiller June 20, 2007
25
                                                               7



1                   EXHIBIT INDEX CONTINUED

2    GROSSES'
     NO.     DESCRIPTION           OFFERED    ADMITTED   VOL.
3    106     General Warranty Deed    10         10        3
4    108    June 17, 2007 Letter from10          10        3
            the Grosses to Hickok
5
     111    June 19, 2007 Email from 10          10        3
6           Hickok to Mr. Gross
7    114    Burgess Property          10         10        3
            Inspection Report
8           June 6, 2007
9
     VSDH'S
10   NO.    DESCRIPTION           OFFERED     ADMITTED   VOL.
      1     May 25, 2007 Fax from    9           9         3
11          Ken Gross to Buttemiller
            Attaching Addendum A
12
      2     June 1, 2007 Summary      9          9         3
13          Appraisal Report
14    6     New Home Contract         9          9         3
15    8     June 12, 2007 First      9           9         3
            Amendment to New Home Contract
16
      9     June 17, 2007 Fax from    9          9         3
17          the Grosses to Hickok

18   10     June 19, 2007 Email from 9           9         3
            Hickok to Ken GrossRegarding
19          First Amendment
20   12     Residential Construction 9           9         3
            Loan June 27, 2007
21
     14     Assignments of Rights    9           9         3
22          Under Construction Contract
23   18     Construction Loan         9          9         3
            Agreement June 27, 2007
24
     19     Construction Loan Rider   9          9         3
25          June 27, 2007
                                                            8



1                   EXHIBIT INDEX CONTINUED

2    VSDH'S
     NO.    DESCRIPTION          OFFERED   ADMITTED   VOL.
3    22     Mechanic's Lien Contract 9        9         3
            June 27, 2007
4
     26     Affidavit of Completion   9       9         3
5           June 27, 2007
6    27     Builder Soft Cost Draw    9       9         3
            Request June 28, 2007
7
     28     Settlement Statement      9       9         3
8           June 28, 2007
9    29     July 3, 2007 Letter from 9        9         3
            Mr. Stern to the Grosses
10          Regarding new Home Contract
11   30     June 26, 2008 Letter from9        9         3
            the Grosses to Mr. Kramer
12          Regarding Inspection and Warranty
13   31     October 16, 2008 Letter 9         9         3
            from Ken Gross to Hickok
14
     32     October 31, 2008Email     9       9         3
15          Chain between Ken Gross
            and Hickok
16
     33     February 23, 2009 Email 9         9         3
17          from the Grosses to Hickok

18   45     Residential Contract     9        9         3
            (Resale) August 21, 2009
19
     46     Settlement Statement      9       9         3
20          August 27, 2009
21   57     June 18, 2009 Email      9        9         3
            from the Grosses to Hickok
22
23
24
25
                                                                    9



1                            PROCEEDINGS
2                           June 15, 2015
3                    (Off-the-record discussion held)
4                    THE COURT: All right.    We'll go on the
5    record.   Plaintiff's Exhibits 1, 2, 6, 8, 9, 10, 12, 14,
6    18, 19, 22, 26, 27, 28, 29, 30, 31, 32, 33, 44 -- no,
7    excuse me -- 45, 46, and 57 are admitted.
8                    Plaintiff's Exhibits 3, 4, 5, 11, 13, 15,
9    16, 17, 21, 23, 24, and 58 are denied.      Does that
10   comport with everyone's understanding?
11                   MR. ALDOUS:    Yes, Your Honor.
12                   MR. CHAIKEN:   No, Your Honor.    I have one
13   other concern, which is 56, which was the first --
14                   THE COURT: Fifty-six doesn't show up on
15   the list.
16                   MR. CHAIKEN: I know. It was one of the
17   three that we talked about earlier today, which was the
18   draw request.
19                   MR. ALDOUS:    It's going to be in as
20   Exhibit 22.   If you want to admit it with a defense
21   number, you can; but...
22                   MR. CHAIKEN: Well, I'm just trying to
23   keep track of it.    Yeah. I'd like to admit it with a
24   defense number on it. It was 56.       We talked about it by
25   agreement.    If it's coming in as 22 on the Gross' list,
                                                               10



1    I mean, it's not a big deal either way.
2                  THE COURT: Well, as long as the
3    document's coming in and it's agreed, then we don't need
4    to add a new one because there was no 56 previously, is
5    what it boils down to.
6                  MR. CHAIKEN: No, I understand.    And the
7    only thing I was doing was because we did add those, and
8    we just talked about them.   And I had identified it as
9    56, and I just wanted to make sure that itwas admitted
10   as 56.   But I didn't know that he was going to put it
11   back on as Gross' 22.   So if that's the case, then it's
12   fine either way.
13                 THE COURT: All right.   We will leave it
14   as the Gross exhibit, which at this point in time is
15   defendant's exhibits.
16                 All right.   Defendant's Exhibits 1, 3, 4,
17   5, 15, 22, 24, 25, 26, 27, 30, 31, 32, 33, 34, 35, 38,
18   42, 43, 44, 45, 46, 47, 51, 52, 59, 60, 65, 66, 68, 83,
19   84, 88, 89, 91, 92, 93, 94, 96, 98, 105, 106, 108, 111,
20   114 are admitted.   Defendant's Exhibits -- let's go off
21   the record for a minute.
22                 (Off-the-record discussion held)
23                 THE COURT: All right.    We'llgo back on
24   the record. Defendant's Exhibits 2, 6, 8, 9, 10, 11, 12,
25   13, 14, 16, 17, 18, 19, 20, 21, 37, 39, 40, 48, 49, 50,
                                                              11



1    53, 54, 55, 56, 57, 58, 61, 62, 63, 64, 67, 69, 70, 71,
2    72, 73, 77, 81, 82, 85, 86, 87, 90, 95, 99, 100, 101,
3    102, 103, 104, 107, 109, 110, 112, 113, 118, 119, 120,
4    121, 122, 123, and 124 were removed by the defendant.
5                  Does that comport withyour recollection,
6    Mr. Aldous?
7                  MR. ALDOUS: Yes, Your Honor.
8                  THE COURT: Okay.   There's several items
9    that are either deferred or pending prove up, and we'll
10   deal with those as they arise.
11                 MR. ALDOUS: Your Honor, I just wanted to
12   make sure that this is acceptable to you.    With respect
13   to the witness, I have a book that has all the exhibits
14   in it which are admitted, as well as the ones that are
15   deferred.   I will not have them refer to the ones that
16   are deferred until it's admitted.   It's just for
17   purposes of being complete, I have it all in here.
18                 THE COURT: Both sides or just --
19                 MR. ALDOUS: Just my side.
20                 THE COURT: Okay.   Any objection to that,
21   Mr. Shaw and Mr. Chaiken?
22                 MR. SHAW:   No objection.
23                 MR. CHAIKEN: No, but I don't know that
24   we've done it that way, which is there were -- as I see
25   it, we have 7, 20, 25, 47 through 55.     So we will
                                                            12



1    probably need to break out --
2                 Sarah, will you come up here, please?
3    We'll need to break out our exhibits the same way so
4    that those which are deferred are in a separate
5    collection to stay consistent.
6                 MR. ALDOUS: If they're deferred --
7                 THE COURT: No, his are in the book
                                                   .
8                 MR. ALDOUS:   They're all in here.
9                 THE COURT: He's just not going to
10   reference them with the witness until --
11                MR. CHAIKEN: Oh, okay. I thought you
12   said you had a separate book for the deferred.
13                MR. ALDOUS: No, no, no.     I'm sorry.
14                MR. CHAIKEN: Understood.      I
15   misunderstood, but now Imisunderstand.
16                MR. ALDOUS: As long as it's not referred
17   to or not sent to thejury until it's admitted, you
18   know, that's -- I figure that'sfine.
19                MR. CHAIKEN: I'm okay with that
                                                .
20                MR. ALDOUS:   And I'm okay with y'all doing
21   the same thing.
22                MR. SHAW:   I got no problem with that.
23                THE COURT: Okay.    All right.
24                MR. CHAIKEN: I understand now what you
25   meant.
                                                            13



1                 THE COURT: A little slow on the pick up
2    today, Mr. Chaiken?
3                 MR. CHAIKEN: No.     Just this whole
4    plaintiff versus defendant switch thing has got me a
5    little confused, but now I'm good.
6                 THE COURT: Is there anything else we need
7    to do before we bring in the jury?
8                 MR. CHAIKEN: No, Your Honor.
9                 THE COURT: I do have the orders on
10   limine. Have you-all had a chance to review them so
11   that you stay within the parameters that have been set?
12                MR. ALDOUS: Yes, Your Honor.
13                MR. CHAIKEN: I have no problem with that.
14   Could we have five minutes just to kind of group and run
15   to the restroom and then start?
16                THE COURT: You may.
17                MR. CHAIKEN:   Thank    you.
18                THE COURT: All right.     We stand in recess
19   for five minutes.   All rise.
20                (Recess taken)
21                THE COURT: All rise.      You may bring in
22   the jury.
23                (Jury enters the courtroom)
24                (Jury instructions read off the record)
25                THE COURT: We'll go on the record.
                                                               14



1                  Mr. Aldous, you may make your opening
2    statement.
3                  MR. ALDOUS: Thank you, Your Honor. I
4    believe you gave me 20 minutes.   And if you would, just
5    give me a five-minute warning.    Thank you.
6                  Good morning.   We're essentially here
7    because, in an effort to avoid the responsibilities that
8    the defendants had under a contract, they've begged,
9    they've deceived, they've delayed, they've denied.     And
10   that's the way this is going to go in trial, I
11   anticipate.
12                 This all started back in 2007 when Ken and
13   Betsy Gross went -- they wanted to move to Vaquero.    Ken
14   builds houses and one of the things that he wanted to do
15   is he wanted to get a home, to build a model home
16   somewhere in Vaquero, which is out in Westlake, north
17   Fort Worth.   And he wanted it to be built out there so
18   people would try to use his services.    Well, it wasn't
19   working out in terms of finding the lot and getting it
20   started.   But Ken knows the home at 2004 White Wing Cove
21   that had sat unpurchased for about two years, even
22   though it had been on sale.
23                 Ken looked at the home and he believed
24   that he knew why it wasn't selling.   He thought that it
25   needed a bedroom downstairs and it needed a media room
                                                                   15



1    and some of other things that people, when they buy
2    these high-dollar homes, expect. Ken did some
3    investigation.    He found out that the builder or the
4    owner of the home was VSDH Vaquero Joint Venture. I'm
5    never going to call them that again.    It's just VSDH.
6    And it stands for Van Shaw and Doug Hickok. Those are
7    the two principals of VSDH.
8                    So Ken learned who was the owner of the
9    home, and he had a proposal for them. The proposal was,
10   "I'll pay you for the -- for asking price on the house.
11   My family and I will move in for a couple of years.       I
12   will build an addition on to the home.    This is about
13   how much it's going to cost.    Here are the
14   specifications for it.    Here's what it's going to look
15   like.   And then if you will, at the end of that period
16   buy the house back from me, you don't have to pay for
17   the addition.    I'll pay for it."   That was the deal.
18                   In other words, we're going to buy it.
19   We're going to build this addition, but you're going to
20   buy it back from me. Now, Mr. Gross smartly said, "And
21   I want the VS and the DH of VSDH, that isVan Shaw and
22   Doug Hickok, to personally guarantee that this happens."
23                   So we went to the closing. Everybody
24   agreed to this process.    We went to the closing in June
25   of 2007.   And at that closing, everybody signed off on
                                                                  16



1    it except for Mr. Shaw.   So you won't hear me refer to
2    him as responsible under this at all because he did not
3    sign the document.   However, Mr. Hickok signed it.     And
4    Mr. Hickok agreed, as you will see, what the contract
5    says; that they personally -- personally guaranteed the
6    performance of VSDH on this buyback option.       So you may
7    recall that in 2007 things weren't -- they were okay.
8                  And in 2008, the bad stuff started
9    happening with the economy.    If you remember, that's
10   when AIG went under, that's when Lehman Brothers went
11   under.   It's when nobodycould get a loan from anybody.
12   Things turned south.   So in October of 2008, Ken starts
13   calling Mr. Hickok to say, "I'm going to start building
14   on the addition.    Come on by.   Take a look."
15                 There was no response, so he sent a fax.
16   And we have the fax, and we'll show it to you.      The fax
17   said, "Hey, listen. Send me your address.      I'll send
18   you the plans or come on by and we'll go through
19   everything and I'll show you, you know, we're getting
20   started."   Mr. Hickok made an appointment for two weeks
21   later on October 31st, 2008.      And then on the morning of
22   the meeting, he sent an email and said, "I won't be
23   showing up today.    I'm out of town."
24                 And Ken just is getting along, said, "Hey,
25   no problem.   Just let me know when you get back."      It
                                                                17



1    turns out that it was sometime later that Mr. Hickok
2    actually came outand the addition had already started.
3    Now you'll hear from Ken and Betsy Gross, and they'll
4    tell you that Mr. Hickok did not complain one bit about
5    the addition. In fact, he said it looks great.
6    Everything's going according to the plan.   But, more
7    importantly, he didn't say that I have a problem with
8    this. I want something moved.     I don't like this.   I
9    don't like the way you're doing it.   It was just like,
10   okay, we'll talk to you later.
11                 Ken went on to finish the addition, added
12   even extra. He went above and beyond. He matched the
13   tiles on the roof so that they'd match the original
14   house. He got all this.    He made it look like the
15   original house.   And then in February of 2009, Ken
16   finishes the addition.    Ken sends a letter back over to
17   Mr. Hickok and says, "Hey, come on out.   Take a look.     I
18   want to show you what we did." No response.
19                 Then in April of 2009 -- you'll see this
20   contract.   The contract says, if you want -- Mr. Gross
21   and Mrs. Gross, if you want the VSDH to buy this back
22   from you, you have to let them know by May 1st, 2009.
23   So on April 27, 2009, Ken and Betty let them know we're
24   exercising the buyback.   Let's go ahead and get this
25   done, and you can buy it back, as the contract states.
                                                               18



1    Now, there was no response originally from them saying,
2    oh, no.    We're not going to buy it back because of one,
3    two, three.   What it was, was Mr. Hickok then said, "I'm
4    turning this matter over to my friend and partner, Van
5    Shaw, who's also a lawyer."
6                   So now Mr. Shaw is the one that we're
7    going to deal with, and Mr. Shaw's first statements to
8    the Grosses out of the box was, "Hey, we can't perform
9    because VSDH is insolvent."   Now Mr. Hickok says that
10   VSDH has never been insolvent, but that's what they
11   said.   VSDH is insolvent.   Will you take something else?
12   They're like, no, no.
13                  Then we had meetings with them to try to
14   resolve the issue. It didn't work out. So we had a
15   meeting with Van Shaw somewhere aroundJune 28, 2009.
16   It was clear that they were not going to honor the
17   buyback.   Mr. Shaw denied that anybody personally
18   guaranteed the responsibilitiesof VSDH.    And so we
19   said, okay.   We've got to do something.   We listed the
20   home.   We then had the home listed and it eventually
21   sold the next month in August of 2009 for a loss.
22                  Now, these are -- this is an expensive
23   home. The original listing price was $2.8 million.      We
24   sold it for $2.4 something million.   The difference in
25   what we're asking you for in terms of the damages are
                                                                  19



1    about $582,000, plus the attorney's fees we've had to
2    expend in getting there.
3                    Now, you're going to be faced with some
4    excuses that I believe that they'll raise and then
5    evidence as reasons why they didn't do this. One,
6    they'll tell you thatthe breach -- that we breached an
7    escrow agreement in the original contract.      Now you'll
8    see in the original 2007 contract, we said that we would
9    escrow the amount that it would take.    That means give
10   to another party, an independent party.    Usually it's a
11   bank or an escrow agent. We're going to give them this
12   money.
13                   It's the value ofthe improvements.     And
14   then we'll just take from that money to build the
15   improvements. Well, there was an escrow.        Our bank was
16   loaning us money.    They had the money in escrow. They
17   doled it out to us as we built the addition.      So I don't
18   know where that excuse comes from.
19                   There will be another excuse.    We're not
20   personally liable on this. We didn't personally
21   guarantee it.    And you'll see the contract.    The
22   contract says that "I, Douglas Hickok, personally
23   guarantee the performance of VSDH."    I don't understand
24   why, but one of the excuses will be, "Well, I only
25   signed this in my capacity as a member of VSDH, but not
                                                              20



1    as an individual."   The contract doesn't say that, so I
2    don't know where they're coming with that excuse.
3                   MR. CHAIKEN: Your Honor, I object to the
4    argument about hedoesn't understand why they're saying
5    things.
6                   THE COURT: No speaking objections.
7                   MR. CHAIKEN: Beyond the scope of opening.
8                   THE COURT: Sustained
9                   MR. ALDOUS: The evidence is going to be
10   that there -- that the contract in it had some deletions
11   from it. In other words, there were some portions in the
12   contract where they crossed through it and then they
13   handwrote some things in.   One of the things that I
14   believe will end up coming before you is whether or not
15   we -- that is the Grosses -- said that our only remedy
16   was whether or not we could make them buy the house.
17   And I think you'll find that the evidence, when it's all
18   admitted, will show that we changed that at the time
19   that we wrote this out.   So I don't know wherethat's
20   coming from.
21                  MR. CHAIKEN: Your Honor, same objection.
22                  THE COURT: Counsel approach.
23                  (Sidebar conference held)
24                  THE COURT: You may proceed.
25                  MR. ALDOUS: One of the issues that has
                                                              21



1    also been raised is that the contract where it said, you
2    know, we had to let them know that we wanted them to buy
3    it back by May 1st, 2009, it says that they have until
4    September 1st, 2009 to actually buy the home back.
5    However, during that period of time, if you recall I was
6    saying that we were visiting with Mr. Shaw, who had
7    taken over the issue from Mr. Hickok.   And he clearly
8    let us know that they were not going o perform the
9    buyback.
10                So in order to protect ourselves, we had
11   to go ahead and sell it to someone else.   However,
12   you'll see the evidence that during that entire step,
13   all those steps in the process, we kept them informed
14   and asked them to let us know if they had any objection.
15   At no point in time did they ever say don't do that,
16   don't sell that house, or we're going to disagree with
17   your sale to this woman.   So it actually was sold and
18   the closing was in August of 2009.   And, as a result, we
19   were able to limit the damages that we're asking for
20   here.
21                One of the issues, I believe, that will
22   also come forward from the evidence is whether or not we
23   allowed them an opportunity to approve the plans for the
24   addition prior to starting construction.   I believe the
25   evidence is going to show you that when we originally
                                                             22



1    entered into the contract, we had three pages of
2    specifications.   Now I'm told that "specifications"mean
3    like I'm going to spend X dollars on the tile.   I'm
4    going to spend X dollars on the bathroom.   I'm going to
5    spend X dollars -- it's a detailed list of all the costs
6    that are going to go into the addition.
7                 Also, Mr. Gross will testify that when he
8    was selling the idea of doing the buyback, you know, the
9    purchase and the buyback, he walked the property with
10   Mr. Hickok and explained why he thought it hadn't sold
11   and what he proposed doing and all of that together. In
12   addition to that, we tried to give them the plans before
13   we started, and they weren't interested.
14                Now at the end of the day, because of the
15   way it was sold and the timing it was sold, it ended up
16   costing Ken and Betsy about $582,000 and some change to
17   -- for the difference between what they would have had
18   if the defendants would have honored this agreement
19   versus the one that we ended up having to do.
20                In addition to that, you're going to have
21   some evidence of what these attorney's fees cost to get
22   this kind of a case and it's not cheap.    I expect that
23   we're going to have testimony from at least two lawyers.
24   I'm not the only lawyer that represented the Grosses.
25   They had another lawyer before me, and I anticipate that
                                                             23



1    he will testify.
2                 I think what the evidence is really going
3    to show is that after when -- the house that VSDH built,
4    it was called a spec house.   What that means is they
5    didn't have a buyer.   They built the home in hopesthat
6    somebody else would come along and buy it, and it didn't
7    sell for, you know, a long period of time. During that
8    period of time, VSDH is having to pay for the carrying
9    cost of all the costs that went into building the home.
10   I think it's about $1.9 million. And so that they're
11   paying on the upkeep to keep the house going, paying on
12   the note, and all that.
13                And I think the evidence is going to show
14   that when this deal came along, although it wasn't what
15   they wanted to do, they were going to agree -- that is
16   VSDH and Mr. Hickok were going to agree, and then hope
17   that they never heard from Ken and Betsy Gross again.
18   But when we did what the contract required -- that is
19   Ken and Betsy Gross notified them appropriately and did
20   all the things in compliance with the contract, then
21   they started their strategy to try to avoid
22   responsibility.
23                MR. SHAW: Your Honor, this is outside the
24   scope of the limine.
25                THE COURT: Careful, Mr. Aldous.
                                                              24



1                  MR. ALDOUS: Yes, Your Honor.
2                  I believe that the evidence will show you
3    that the excuse --
4                  THE COURT: Five minutes.
5                  MR. ALDOUS: Thank you, Your Honor.
6                  -- the excuses that they have for avoiding
7    the contract are not supported by the evidence.    In
8    other words, they're not going to be able to come
9    forward and show you where they are right and we are
10   wrong.   Their strategy will continue to play out in this
11   courtroom.
12                 Now we are happy to be finally in front of
13   you.   It's been a while since we've been able to get
14   here, and we'll be more than happy to have you decide
15   the facts of this case.   I appreciate your attention.
16                 THE COURT: Mr. Shaw?
17                 MR. SHAW: Thank you, Your Honor.
18                 Ladies and gentlemen
                                      , I saw you on
19   Wednesday.   I did not speak to you.   Dan Hagood was here
20   speaking to you in my stead.   My name is Van Shaw, and
21   I'm a lawyer for VSDH Venture, Ltd. And I have today
22   Darcy Topolski in the courtroom.
23                 Darcy, could you stand up, please?
24                 She'll be with me intrial as a
25   representative of the company.
                                                              25



1                 Now we hear the rest of the story.     As you
2    agreed on Wednesday, you said you'd wait to hear all of
3    the evidence before deciding.   And we talked about, hey,
4    the plaintiff gets to go first.   They get to open first
5    and we have to tag along.   They get to put their
6    evidence on first, and we have to tag along.    They even
7    get to close first, and we have to tag along.   And so
8    it's important that you wait until all the evidence is
9    in -- and you agreed to do so and I appreciate that --
10   before you decide.   There was a discussion about an
11   assembly line, and that's what the trial is like.    It's
12   an assembly line, and we're at the back of the line.
13   So you don't get to hear what we're adding to the pot
14   until the product is way down the line, and that's why
15   it's very important for to you wait.
16                You also said, and you agree, that
17   contracts are important and that if you breached a
18   contract, you would not then sue for enforcement of the
19   contract.
20                MR. ALDOUS: Your Honor, I would object
21   because that's beyond the scope of -- I object.
22                THE COURT: Sustained.
23                MR. SHAW: The fact of the matter is, and
24   the evidence will show, that if you want to precisely
25   enforce a contract, you must precisely abide by that
                                                                 26



1    contract.   That's what the evidence will be in this
2    case.   Mr. Gross is a sophisticated builder. Mr. Gross
3    has built many multimillion dollar homes. Mr. Gross --
4    this is not Mr. Gross' first rodeo. Mr. Gross knows what
5    he's doing and is very sophisticated.   His lawyer knows
6    what he's doing, but he said things like, VSDH is Van
7    Shaw and Doug Hickok.   Well, that's not true.
8                   VSDH Venture, Ltd., is an entity, just
9    like General Motors is an entity or Dell computers is an
10   entity. When Michael Dell signs a contract, Michael
11   Dell is signing a contract for Dell Corporation. And
12   that's what the laws are in this country.    It's a great
13   country.    We have laws and those laws need to be
14   enforced, and that's why we have things like contracts
15   and legal entities.
16                  But what I want to tell you is about the
17   rest of the story
                     .
18                  Your Honor, may I have the Elmo, please?
19                  THE COURT: I'd say keep talking.      It's
20   going to be a whilebefore it comes up.
21                  MR. SHAW: I'm sorry?
22                  THE COURT: Keep talking.     It will be a
23   while before it comes up.
24                  MR. SHAW: All right.   I want to give you
25   a little background.    I told you that Mr. Gross is not
                                                               27



1    unsophisticated. And I'll give you a little more
2    background. VSDH is Van Shaw.     That's what this fellow
3    said.   And DH is Doug Hickok.   Well, Doug and I --
4    Doug's in the courtroom.     That'shim.   Doug and I go
5    back many, many years.    We were grade school friends,
6    been friends ever since, so we have a long relationship
7    with each other.    Doug is an admiral guy and you'll see
8    that. When Doug testifies, you'll get to determine that
9    for yourself.
10                   But what I've got is -- and you're going
11   to get to see in this case -- is some contracts.
12                   And, Your Honor, this is Exhibit 6.
13                   There's -- the case is going to be mainly
14   about a contract. Okay.    There's a contract that the
15   parties entered into, and that's what we're going to be
16   talking about a lot. Okay.    This is -- this is the
17   contract, Vaquero Venture, Ltd. -- it's hard to read --
18   Mr. Gross and Mrs. Gross.    Okay.   This is what we're
19   talking about.    Now, what you did not hear in the
20   opening from the plaintiff and that -- what I wanted to
21   talk to you about a little bit is this.    The contracts
22   are entered into and they're there for a reason.
23                   And 22 says -- and it's hard to read --
24   the content contains the entire agreement of the parties
25   and cannot be changed except by written agreement,
                                                               28



1    cannot be changed except by written agreement.
2    Everybody agreed to that.   Those were the terms.   You
3    won't hear one person in this lawsuit tell you
4    otherwise.   Then you're going to find some evidence that
5    there's an addendum to the contract, and this is the
6    buyback that they're talking about.   Okay. VSDH grants
7    blah-blah-blah the Grosses an option to put the property
8    to the seller.   Okay.   You've heard some talk about
9    that.
10                 Now, let's look what it says they have to
11   do.   It says buyback exercises.   They have todo a few
12   things.   But in this section, it says the buyer may not
13   sell or convey the title blah-blah-blah.   And then it
14   says should the buyer enter into a contract to sell the
15   property, the buyback option will immediately terminate
16   and will no longer be available to the buyer.     And
17   that's what happened in this case, no doubt about it
                                                        .
18   You will see the evidence and hear the evidence that
19   that occurred.
20                 You're going to also see evidence that the
21   same contract said, before commencing the construction
22   improvements that counsel told you about, buyer will
23   review with the seller the plans and specs and receive
24   general consent.   Never, ever happened, never.   So
25   you're going to see a lot of things that were important
                                                                29



1    in this case that never happened.   You're going to see
2    this section, escrow agreement.    Buyer agrees to escrow
3    funds totaling $156,000 with the title company and enter
4    into escrow agreement, blah-blah-blah.   Never happened.
5    Buyer never, ever, ever, never did that.    And as a
6    result, buyer was sent a letter.    Buyer was sent a
7    letter that said you're in violation of the agreement.
8    You've got obligations under the agreement.    You're in
9    violation.   Not only were those violations not cured,
10   buyer never responded ever, never responded.
11                 So then we come down with the real
12   important facts.   If you want to precisely enforce a
13   contract, you must precisely abide by it.
14                 MR. ALDOUS: Your Honor, I object to that
15   being on the Elmo if it's not in evidence.
16                 THE COURT: Sustained.
17                 MR. ALDOUS: I continue to object.
18                 MR. SHAW: Can I use an outline at all,
19   Your Honor, that shows the jury what the evidence will
20   show?
21                 THE COURT: In closing.
22                 MR. SHAW: Okay.
23                 MR. ALDOUS: Thank you.
24                 MR. SHAW: The evidence is going to show
25   you that there was a purchase contract, and it was dated
                                                                30



1    -- the property was to close on June the 12th, 2007.       It
2    didn't happen.    Property wasn't bought until about two
3    weeks later, July 27th.    But what happened on July 19th
4    -- and the evidence is going to show you that the
5    Grosses moved in to a two-and-a-half-million dollar
6    house without authority, without the knowledge or
7    without the consent of the sellers, never, ever knew it.
8    The property was located -- Mr. Hickok lived in Plano.
9    I lived in Dallas.    The property was in Westlake.   We
10   learned -- Mr. Hickok was shocked to learn that the
11   Grosses moved into the property, pre-contract,
12   pre-purchase.
13                   Mr. Hickok writes a letter, Exhibit 10.
14   Mr. Hickok says, "I was shocked to hear that you had
15   taken up occupancy of the house prior to closing."
16   You'll see this document in full during the trial. It
17   was very surprising, very unacceptable and shocked.
18   There was the addendum to the contract that Mr. Gross
19   agreed to.   We told you about it. Before any
20   construction, the buyer will review with the seller.       It
21   never happened. The buyer will escrow $156,000. It
22   never happened.    The buyer will wait until September 1,
23   2009 -- that's the date, the buyback date, September 1,
24   2009.   Prior to that date, Mr. Gross sold the home prior
25   to that date.    So, the buyer breached the contract.
                                                                  31



1                   It's going to be unequivocal.     The buyer
2    breached the contract and there are significant breaches
3    we talked about.   You'll hear evidence about that
4    probably ad nauseam. I know your time is important. We
5    don't want to burn your time, but this is a very
6    important case and we want to make sure everybody's
7    clear on it.   The bottom line facts from my side is that
8    the Grosses violated the contract.   The Grosses say,
9    well, Van Shaw never signed it, so we don't have
10   anything to do with that. Well, they sued Van Shaw on
11   top of everything else.
12                  MR. ALDOUS: Objection, Your Honor.
13   That's -- objection.
14                  THE COURT: Parties approach.
15                  (Sidebar conference held)
16                  THE COURT: You may proceed.
17                  MR. SHAW: This -- so the Grosses have a
18   number of issues that we will talk about.      But in the
19   end, the important things are, if you want to precisely
20   abide by the contract, you need to precisely.      If you
21   want to enforce it precisely, you need to abide by it
22   precisely.   You will hear significant evidence that that
23   never occurred.    We thank you for your time.
24                  THE COURT: Mr. Chaiken?
25                  MR. CHAIKEN: Thank you, Your Honor.
                                                               32



1                   Ladies and gentlemen
                                       , we spoke briefly on
2    Wednesday of last week when you were participating in
3    the jury-selection process.   You may recall that
4    Mr. Hickok was present in the courtroom.    I'd like to
5    reintroduce Douglas Hickok.
6                   Doug, will you please stand up?
7                   And it is my privilege to represent Doug.
8    Doug is a long-time client of mine and he is a good
9    friend of mine.   And I am tasked with the burden and
10   obligation of establishing for you that Doug has a
11   defense to this case and the case that has been brought
12   against him.   What's very important here is that you
13   understand what Mr. Hickok has been sued for. You've
14   already heard the difference between entities and
15   individuals; that human beings sign for entities where
16   -- because a live person has to act for an entity.
17                  And you will see evidence in the form of a
18   contract, the contract that Mr. Shaw put up on the Elmo
19   a few minutes ago that shows thatMr. Hickok signed the
20   contract.   Yeah, he's the human being.    The signature is
21   there, but his signature was very clearly -- the
22   evidence will show in his capacity as a vice president
23   of the general partner of the VSDH Vaquero entity.    The
24   evidence will show that both Mr. and Mrs. Gross, as the
25   buyer identified in the contract, and Mr. Hickok, acting
                                                               33



1    for the seller -- the seller is specifically identified.
2    There's nobody other than VSDH -- initialed the
3    contract.   They did it for what's called identification
4    purposes.
5                  And you'll hear evidence from the witness
6    stand from Mr. Hickok and from his lawyer in the
7    transaction as to what that means and why it was done
8    that way, what initialing for purposes of identification
9    means.   And you'll hear evidence from Mr. Hickok that,
10   yes, he had a conversation through a broker about the
11   possibility of there being a personal guarantee by him
12   and Mr. Shaw in this transaction of this buyback
13   obligation that you're hearing about.
14                 But you'll also hear, and the evidence
15   will show, that Mr. Hickok made very clear that when he
16   was considering the possibility of a personal guarantee,
17   he told the broker, "I will only consider a personal
18   guarantee if two things happen. One, Mr. Van Shaw also
19   personally guarantees any such obligations; and, number
20   two, there is a document signed, okay, with my signature
21   on it and Mr. Shaw's signature on it that says we both
22   guarantee any of the obligations of VSDH."   And the
23   evidence in this case will be that although Mr. and
24   Mrs. Gross were represented by a lawyer in the
25   transaction, they never took any action to cause that
                                                              34



1    situation to be properly documented and executed by
2    either Mr. Hickok or Mr. Shaw.
3                  Now, what is a buyback option? Well, a
4    buyback option, the evidence will show, is an
5    understanding in a contract whereby a party who has
6    bought this property, a house, has the opportunity under
7    certain circumstances specified in the contract to sell
8    it back to the party who sold it to them.   Andthe
9    evidence will show that the party who sold the property
10   is not Mr. Hickok and it's not Mr. Shaw, but it was
11   VSDH, the partnership.   And that is the party charged
12   with a buyback obligation under the contract.
13                 Now, the evidence in this case is going to
14   show the following:   That Mr. and Mrs. Gross only care
15   about contract provisions that benefit them without
16   regard to contract provisions that they don't like. For
17   example, the evidence is going to show that when they
18   purchased the house from VSDH, the Grosses signed a loan
19   agreement with a lender.   And the lender's loan
20   agreement that they signed knowingly stated that they
21   were required to commence construction work, this
22   addition that they did, within a very short period of
23   time.   I believe it was 30 days after they closed on the
24   purchase of the house.
25                 Now, not only did they move into the house
                                                               35



1    before they bought it, unbeknownst to the partnership or
2    its partners, the evidence will show that Mr. and
3    Mrs. Gross did not commence construction, okay, until
4    sometime possibly a year-and-a-half later.    The first
5    indication that anybody got, and the evidence will show
6    this, that they were commencing construction was an
7    email in October of 2008.    They closed their purchase in
8    June of 2007.    What you're going to find out through the
9    evidence is that the loan agreement that I just
10   mentioned required them to finish the construction work
11   by December of 2007.
12                   They didn't even attempt to comply with
13   their loan obligation to start construction of the house
14   on a timely basis.    But construction was a material part
15   of the agreement and the inducement for the buyback
16   obligation, and that's what the evidence is going to
17   show you.   And not only did Mr. and Mrs. Gross fail to
18   meet their obligations under their loan agreement to
19   start and finish construction before the end of 2007,
20   but they got into a fight with their lender.    They got
21   into a fight with their lender.
22                   MR. ALDOUS: Your Honor, I object.
23                   MR. CHAIKEN: And they told their lender.
24                   THE COURT: Approach.
25                   (Sidebar conference held)
                                                               36



1                  THE COURT: You may proceed.
2                  MR. ALDOUS: Thank you, Your Honor.
3                  MR. CHAIKEN: But at the end of the day,
4    the Grosses are suing Doug Hickok for breach of the
5    contract they say he personally guaranteed the buyback
6    obligation, and he is required now to pay damages for a
7    failure of the partnership, VSDH, to buy the property
8    back.   When you look at the contract -- you can just
9    take my word for it.   You'll hold me to this -- you will
10   see that if there was a guarantee in this deal by
11   Mr. Hickok, all he guaranteed was to perform the buyback
12   obligation if, and only if, VSDH did not do so in
13   accordance with the contract.
14                 And the evidence will show you the
15   following:   Number one, the buyback option had what is
16   called a buyback date, September 1st, 2009.   That was
17   the date upon which VSDH, if it had an obligation to buy
18   the property back, was required to buy it back.    You
19   will see that the only time, and the evidence will show,
20   that if Mr. Hickok guaranteed this thing that he could
21   be called upon to perform the guarantee was after
22   September 1st came and went and VSDH had not bought the
23   property back on that date.
24                 But Mr. Hickok couldn't have performed the
25   guarantee obligation if he wanted to once September 1st
                                                              37



1    of 2009 rolled around because Mr. and Mrs. Gross took it
2    upon themselves to sell the property to a third party.
3    They sold the property to somebody else.
4                  And you want to know what?   The very same
5    buyback option that they are trying to enforce against
6    Mr. Hickok says:   Once you give notice that you intend
7    to exercise the buyback option, you, the buyers --
8    meaning Mr. and Mrs. Gross -- shall not sell the
9    property or convey any interest in the title to anybody
10   else.   But they did it anyway.
11                 Well, the evidence is going to show you --
12   and out of Mr. Gross' own words, Mr. Hickok never told
13   him that he wasn't going to perform any buyback
14   obligation.   And Mr. Shaw indicated it might be a
15   problem, but he never said that they were not going to
16   perform.   And at the end of the day, the contract says
17   that there's only a guarantee obligation, if there is
18   one at all, upon the occurrence of the default, not the
19   possibility of one.
20                 You will see that as of the buyback date,
21   even if there was an enforceable guarantee, Mr. Hickok
22   could not have performed under the guarantee because it
23   would have required the Grosses, in exchange for the
24   buyback price, to deliver title to the property to
25   Mr. Hickok, the supposed guarantor, but; they didn't
                                                             38



1    have title to the property to deliver to him because
2    they sold the property to somebody else in breach of
3    their contractual obligations not to do so.
4                   THE COURT: Five minutes.
5                   MR. CHAIKEN: You will also see that in
6    the contract when the contract was initially signed,
7    there was a strike through a provision of the contract
8    that talks about what the parties' rights and remedies
9    were if one or the other defaulted.   And when I say,
10   "one or the other," I mean the seller or I mean the
11   buyer. Okay.   But the Grosses come in here and say
12   Mr. Hickok became a party to the contract. And when
13   this addendum you heard mentioned was put together,
14   there was some language in there that said that the
15   seller, who was VSDH, agreed to reinstate some language
16   that was stricken.
17                  But the evidence will show you in the form
18   of that language itself that if Mr. Hickok was a party
19   to the contract, which we say he was not, he never
20   agreed to reinstate those remedies.   And one of the
21   remedies that Mr. and Mrs. Gross struck and they agreed
22   to strike was their ability to sue for damages, but here
23   they are again not honoring their contract and suing for
24   damages.
25                  MR. ALDOUS: Your Honor, objection.
                                                               39



1                   MR. CHAIKEN: And that is what we --
2                   THE COURT: Sustained.
3                   MR. CHAIKEN: We believe the evidence will
4    show you that the suit for damages against Mr. Hickok
5    was waived.
6                   Ladies and gentlemen
                                       , as I told you during
7    jury selection, this is a very important case for all of
8    the parties.   But it is an important case for my client,
9    Mr. Hickok, who as I told you was brought here against
10   his will, and he'll only ask for the opportunity to
11   defend himself.   I thank you for your time.
12                  THE COURT: You may call your first
13   witness, Mr. Aldous.
14                  MR. ALDOUS: Yes, I would call Doug
15   Hickok.
16                  THE COURT: Raise your right hand, please.
17                  (Witness sworn)
18                  THE COURT: You may be seated.
19                  MR. ALDOUS: May I approach, Your Honor?
20                  THE COURT: You may.
21                          DOUGLAS HICKOK,
22   having been first duly sworn, testified as follows:
23                       DIRECT EXAMINATION
24   BY MR. ALDOUS:
25      Q      Mr. Hickok, just for easy reference, I've got
                                                               40



1    some stuff around here, and they've got these numbers on
2    them.   And if I'm referring to a number, I'll let you
3    know, and then you can flip to it.   Is that all right?
4       A     Perfect.
5       Q     Great. I'll just set that in front of you.
6                  First of all, let's see what we can agree
7    on, right?
8       A     Sure.
9       Q     Your name's Doug Hickok?
10      A     Douglas M. Hickok.
11      Q     Can we agree on that?
12      A     Yes, sir.
13      Q     VSDH, that is the defendant in this case, is
14   VSDH Joint Venture Ltd., right?
15      A     Yes, sir.
16      Q     The parties to that agreement, that is who
17   makes up VSDH, that's you, Van Shaw, and VSDH Homes,
18   Inc., correct?
19      A     Yes, sir.
20      Q     So are there any other individuals who have an
21   ownership interest in VSDH other than you and Mr. Shaw?
22      A     No, sir.
23      Q     So when I say --
24      A     But let me correct something.
25      Q     Sure.
                                                               41



1       A     VSDH Homes, Inc. is not an individual.    They're
2    a corporation.
3       Q     That's right.
4       A     Okay.
5       Q     So the only two individuals that have an
6    ownership interest in VSDH are you and Van Shaw?
7       A     Yes, sir.
8       Q     Okay.   Now, with respect to VSDH, does the VS
9    stand for Van Shaw and DH Doug Hickok?
10      A     It probably did.    I can't rememberback then,
11   but it probably did.     Sure.
12      Q     Well, you know, I guess -- is there any other
13   thing that you think that those initials could apply to
14   other than Van Shaw and Doug Hickok?
15      A     I'm sure I can come up with something, but I --
16   let's go with Van Shaw and Doug Hickok.
17      Q     All right. You said that -- I think youtold
18   me a long time ago that you've known Mr. Shaw since 6th
19   grade?
20      A     Yes, sir.
21      Q     Have you been in ventures with him before,
22   other than VSDH?
23      A     A venture before we formed VSDH?
24      Q     Yes, sir.
25      A     I believe so.    Sure.
                                                              42



1       Q      Now the contract that we're here about --
2                   MR. ALDOUS: Your Honor, if you could just
3    a minute -- I've got to grab something out of that room.
4    Do you mind?
5                   THE COURT: That's fine.
6                   MR. ALDOUS: You know, I asked Seth if we
7    could get the easel.   I think we forgot.
8                   THE COURT: Counsel, approach.   And,
9    Mr. Aldous, approach with your exhibits.
10                  MR. ALDOUS: Okay.
11                  THE COURT: You may proceed.
12      Q      (By Mr. Aldous) Mr. Hickok, if you would,
13   please take a look at Number 3, Exhibit 3 in the book
14   there.
15                  THE COURT: You may be seated, Mr. Aldous.
16                  MR. ALDOUS: Thanks, Judge.    I'm going to
17   have to flip from page to page
                                  .
18                  THE COURT: That's fine.   You can do that
19   seated.   The jury can't see through you.
20                  MR. ALDOUS: Okay.
21      Q      (By Mr. Aldous) Exhibit 3 now, is this the
22   contract -- I'm sorry.   I may have ended up with the
23   wrong one.   Do you see the numbers on this Exhibit 3,
24   $2,695,000?
25      A      Yes, sir.
                                                                43



1       Q     That's not the agreement that ended up being --
2    that actually closed, is it?
3       A     I believe that's the one that did actually
4    close.
5       Q     Isn't it true that the actual sales price that
6    closed was $2.8 something million?
7       A     It could have.   It either went one way or the
8    other, yes, sir.
9       Q     All right.   Just so that we're clear, at some
10   point in time, the amount that was to go with the
11   improvements actually was part of the contract price,
12   right?
13      A     Say that one more time.   Excuse me.   I was
14   looking at something else.
15      Q     At one point in time, whatever the improvements
16   were going to be made on the house were part of the
17   contract price, right?
18      A     Yes, sir.
19      Q     And then another version, it wasn't part of the
20   contract price?
21      A     Yes, sir.
22      Q     Okay.    So I want to make sure that we get the
23   actual contract that belongs with your -- with the
24   actual agreement, the one that actually got performed.
25   Let me show you -- this is not up there, so I'm going to
                                                              44



1    have to bring it to you.   This is actually Exhibit No. 2
2    that's been admitted into --
3                  THE COURT: Mr. Aldous?
4                  MR. ALDOUS: May I approach, Your Honor?
5                  THE COURT: You may.
6                  MR. ALDOUS: Thank you.
7                  THE COURT: Court first.   The Court first.
8                  MR. ALDOUS: Oh, sorry.    This is already
9    admitted as Hickok Exhibit 2.
10                 THE COURT: You may approach.
11                 MR. ALDOUS: Thank you, Your Honor.
12      Q     (By Mr. Aldous) This is what I wanted to show
13   you.   So do you recognize this?
14      A     Yes, sir.
15      Q     This exhibit shows that the contract price for
16   the house is 2,851,871, right?
17      A     Yes, sir.
18      Q     Now do you recall actually entering into this
19   contract?
20      A     I don't know if it fully got --
                                            I can't
21   remember if it fully got executed, and I don't think it
22   did and went to the title company where everybody signed
23   off.   I don't think so, but I'm not sure.
24      Q     Well, just so that we're clear, first of all,
25   when people are going to agree to buy a house or sell a
                                                             45



1    house, what they do is they enterinto a contract,
2    right?
3       A     Yes, sir.
4       Q     And that contract says that by a certain amount
5    of time, we're going to do X or Y; and at that time,
6    which is called the closing, that's when the money
7    changes hands, right?
8       A     Yes, sir.
9       Q     Now, this house that's reflected on this
10   Exhibit 2 shows -- it says in the city of Westlake 2004
11   White Wing Cove, right?
12      A     It does.
13      Q     That's the house that VSDH had built for it,
14   right?
15      A     Had built for it.   What's "it"?
16      Q     For VSDH?
17      A     Oh, that we had built for our company, sure.
18      Q     Right.   VSDH built it as a spec home, correct?
19      A     Yes, sir.
20      Q     In other words, when you built it, when you set
21   out to build it, you didn't have a buyer particularly in
22   mind?
23      A     Right.
24      Q     And you built it in the hopes that you would
25   build the house for X amount of cost, and you'd be able
                                                                46



1    to sell it for a profit later on?
2       A     Sure.
3       Q     That's what the business of VSDH is, that sort
4    of thing, right?
5       A     Yes, sir.
6       Q     Now there was one other home in this area that
7    VSDH actually built, correct?
8       A     Correct.
9       Q     And that was right next door to this house?
10      A     Yes, sir.
11      Q     And didn't -- in fact, didn't a guy that you
12   guys knew actually live in that house, Wally?
13      A     Wally Maya purchased the home.
14      Q     What was Wally's full name
                                      ?
15      A     Maya.     It's Waldemar D. Maya, M-a-y-a
                                                    .
16      Q     He purchased the home?
17      A     Yes, sir.    Well, an -- let us make sure.   An
18   entity that he owns purchased the home.
19      Q     I see.    And he's also been an investor with you
20   on some other projects, right?
21      A     Yes, sir.
22      Q     Would you consider Mr. Maya to be a friend of
23   yours?
24      A     Sure.
25      Q     Okay, great.    Now, the agreement that is
                                                              47



1    Exhibit 2 reflects -- if you would, turn to the page
2    that's marked Gross 0009. See at the bottom of the
3    page, it says right down there that number?
4       A    Yes, sir.
5       Q    Now it says special provisions.   Do you see
6    that?
7       A    Yes, sir.
8       Q    And it says, see Addendum A.    See Addendum A
9    and Addendum B.   Do you see that?
10      A    Yes, sir.
11      Q    Was the sale of this home to Ken and Betsy
12   Gross what you would refer to as standard?
13                 MR. CHAIKEN: Objection, form, calls for
14   speculation as to what is meant by standard.
15                 THE COURT: No speaking objections.   And
16   you stand when you address the Court.
17                 MR. CHAIKEN: My apologies, Your Honor.     I
18   thought you said we could be seated.
19                 THE COURT: Overruled.
20      A    I mean, I believe your question was:   Is this
21   standard?   And I don't think -- there's no two pieces of
22   real estate that are exactly alike ever, and so there's
23   really no standards in real estate is my simple answer.
24      Q    (By Mr. Aldous) Well, you have a lot of
25   experience buying and selling real estate, don't you?
                                                             48



1       A    I'm fairly experienced.   Yes, sir.
2       Q    You've been doing it for quite some period of
3    time?
4       A    Yes, sir.
5       Q    Have you ever done real estate projects like
6    this one?
7       A    I've probably done these two homes.
8       Q    That's it?
9       A    Yes, sir.    I'm not in the home building
10   business.
11      Q    Well, you also owned other residential
12   facilities like condos or something?
13      A    Condos, apartments, yes, different
14   single-family types.
15      Q    Have you ever entered into a contract to buy
16   back a house like you did it in this situation?
17                MR. CHAIKEN: Your Honor, objection.
18                THE COURT: Overruled.
19                MR. CHAIKEN: May I state the basis of the
20   objection?
21                THE COURT: As long as it's not a speaking
22   objection.
23                MR. CHAIKEN: The question is vague in
24   terms of who Mr. Aldous is speaking of as "you."
25                THE COURT: Overruled.
                                                                49



1       A      Could you rephrase -- restate your question,
2    please?
3       Q      (By Mr. Aldous) Yes, sir.   Have you, either as
4    VSDH or any other entity in which you're involved, ever
5    done a sell with a buyback provision in it other than
6    this situation?
7       A      You know, I can't think of anything off the top
8    of my head, only because I haven't done a whole lot of
9    this type of residential contracts.    So, no.
10      Q      Now, the addendum -- so this whole contract
11   that is Exhibit 2 that I'm holding up right here, a lot
12   of this is a form, isn't it?
13      A      It's a -- I believe it's apromulgated form,
14   which means it's a form that's issued by the Texas Real
15   Estate Commission.   I believe this is the -- yes, it's
16   produced by -- I'm pretty sure it was promulgated.    At
17   the top of the page it says promulgatedby the Texas
18   Real Estate Commission. So it's a standard form by the
19   Texas Real EstateCommission.
20      Q      And if you want to makechanges to the standard
21   form, you may cross some places out?
22      A      Yes, you can.
23      Q      Or you may add addendums, like was done in this
24   situation, right?
25      A      Sure.
                                                              50



1          Q    Let's turn to the addendum, which is at page --
2          A    I don't see an addendum.
3          Q    Yeah, I don't either. It doesn't look like it
4    made it into this copy.
5                   MR. ALDOUS: May I approach, Your Honor?
6                   THE COURT: You may.
7                   MR. ALDOUS: It's previously admitted as
8    Exhibit 6.
9                   THE COURT: Is this an extra because I
10   don't have one in the notebook that you're giving me?
11                  MR. ALDOUS: This is Hickok and VSDH's
12   exhibit.
13                  THE COURT: Okay.
14                  MR. ALDOUS: Thank you.
15                  THE COURT: You may approach.
16                  MR. ALDOUS: Thank you.
17         Q    (By Mr. Aldous) Just so you have it now.
18         A    Okay.
19         Q    Let me show you what's been admittedas Exhibit
20   No. 6.    This has the complete agreement in it, doesn't
21   it?
22         A    Well, this is not the complete, final
23   agreement.
24         Q    What is missing from Exhibit 6?
25         A    Well, this is not -- this was not the contract
                                                              51



1    that went to the title company.
2       Q    What makes you think that, sir?
3       A    Well, I don't believe -- let me just look at
4    something here.    If I remember correctly, there were
5    some other strikeouts in the Addendum A attached.      This
6    is the agreement.    This isn't the final agreement.
7       Q    When you say "this," can you tell me --
8                   MR. ALDOUS: Do you mind if I approach,
9    Your Honor?
10                  THE WITNESS: What you're showing as
11   Exhibit A is not the contractual -- the final
12   contractual agreement that we had -- that VSDH had with
13   the Grosses.
14                  MR. ALDOUS: Do you mind if I approach,
15   Your Honor?
16                  THE COURT: You may.
17      Q    (By Mr. Aldous) Where are you looking?
18      A    Well, this is.    This is not.
19      Q    All right.    Let's go ahead and move on then to
20   Exhibit 3 that's been admitted already.   When you say
21   that the -- does this Exhibit 3 that is in the notebook,
22   does it have the addendum as it was reflected and went
23   to closing?
24      A    It does.    It looks like it's fully executed by
25   all the parties and it has the Addendum A, I believe you
                                                                52



1    were referring to, attached.
2       Q      All right.   So what we have with respect to
3    Exhibit 3 are several pages, and then we have the
4    addendums that are attached, correct?
5       A      Yes, sir.
6       Q      And in terms of this agreement, you went
7    through and you signed the contract.    Let's turn to that
8    page.    It is the page that is marked as 0028.   Do you
9    see that?
10      A      Yes, sir.
11      Q      Now, I know this is kind of hard for you to --
12   first of all, you see where it says VSDH Homes, Inc, LP?
13      A      It actually says VSDH Homes, Inc. with my --
14   with a GP next to it.    That's the general partner of the
15   seller, which is VSDH, Vaquero Venture, Ltd.
16      Q      Now that line, that horizontal line, and then
17   the -- I mean the vertical line, then follow the
18   horizontal line, is that your signature, sir?
19      A      That's my signature with a VP for vice
20   president of VSDH Homes, Inc., the GP.
21      Q      Have you been a doctor before?
22      A      No.   Unfortunately I sign a lot of checks.
23      Q      You make it as quickly as possible; is that
24   right?
25      A      Quickly as possible, painless as possible.
                                                               53



1          Q   Each page of Exhibit 3 is initialed.   And in
2    terms of the initialing, is this that I'm pointing to
3    here, is that your initial?
4          A   That's my initial as the seller, which is VSDH,
5    Vaquero Homes, Ltd. That's me signing on behalf of the
6    seller.
7          Q   I know you want to --
8          A   Like Dell Computer or whatever
                                           .
9          Q   -- make that distinction
                                      .
10         A   I'm making a distinction
                                      . Sure.
11         Q   Right.   But my question is very simple.   Is
12   that your initial?
13         A   Yes.
14         Q   Is that you?
15         A   It is mine --
16         Q   For whatever capacity?
17         A   -- mine on behalf of the seller, yes, sir.
18         Q   And you went through on pretty much every page
19   and did the same thing; isn't that right?    You initialed
20   it?
21         A   Just like Ken and Betsy Gross did, sure.
22         Q   Right.   Now when we get to the addendum, which
23   is going to be at the page marked Gross 33, this is
24   where it starts, correct?
25         A   Yes, sir.
                                                                  54



1       Q       And that's what it looks like?
2       A       Yes, sir.
3       Q       Now I have some particular parts of it that are
4    on this agreement, so I want to take it one by one.
5                   THE COURT: Mr. Aldous?
6                   MR. ALDOUS: Yes, sir.
7                   THE COURT: You need to move your exhibits
8    away from --
9                   MR. ALDOUS: All right.       Wouldit be all
10   right if I put them up here?
11                  THE COURT: That's fine.
12                  MR. ALDOUS: Great.
13                  MR. CHAIKEN: Your Honor, may I make a
14   request?    I'm sorry to interrupt.   Before the additional
15   boards are published to the jury, could I ask that they
16   not be shown to the jury.
17                  THE COURT: You just want them turned
18   around?
19                  MR. CHAIKEN: Thank you, Your Honor.
20      Q       (By Mr. Aldous) The very first paragraph of the
21   addendum, you see that there?    It says, lawyer language,
22   VSDH Vaquero Venture, Ltd., as seller, grants to Ken and
23   Betsy Gross, as buyer, the option to put the property to
24   seller.    I require the seller to purchase the property
25   for the original sales price of $2,851,871 on September
                                                               55



1    1st, 2009, or such earlier date as may be mutually
2    agreed between buyer and seller.     You see that?
3       A    Yes.    And it goes on to say, "subjectto the
4    following terms and conditions."     Sure.
5       Q    Right.   So would you agree with me that subject
6    to the other terms and conditions, VSDH agreed to
7    repurchase the home from the Grosses if they exercised
8    it appropriately according to the addendum?
9       A    Yes, sir.
10                  THE COURT: Would you like to approach?
11                  MR. ALDOUS: I was changing this.      Is this
12   approaching?
13                  THE COURT: That's approaching.
14                  MR. ALDOUS: May I approach?
15                  THE COURT: You may.
16                  MR. ALDOUS: Thank you.
17      Q    (By Mr. Aldous) The next paragraph is the
18   declaration date.   You see that?
19      A    Yes, sir.
20      Q    On or before May 1st, 2009, the declaration
21   date, the buyer must exercise the buyback option by
22   delivering the written notice to the seller.    If for any
23   reason they have not exercised the buyback option notice
24   on or before 5:00 p.m., then the buyer waives the
25   buyback option, right?
                                                                56



1       A       Yes, sir.
2       Q       So as I understand what this is saying is the
3    Grosses were required to give VSDH notice like this
4    before May 1st, 2009, if they wanted to exercise the
5    buyback?
6       A       Yes, sir.
7       Q       You agree with me that Mr. and Mrs. Gross
8    correctly gave notice that they wanted to invoke the
9    buyback?
10      A       They did, but didn't meet the terms and
11   conditions of the buyback, but they gave notice.
12      Q       All right.   I understand that you've got a
13   problem with that, but I'm just trying to eliminate some
14   things we can agree on.     You agree they sent you notice?
15      A       Yes, sir.
16      Q       And what you disagree with is that they
17   complied with the rest of it?
18      A       Yes, sir.
19      Q       So we don't have to ask the jury to get them to
20   find out whether we gave notice. You agree with that?
21      A       Yes, sir.
22      Q       Okay.
23                  MR. ALDOUS: May I approach?
24                  THE COURT: You may.
25                  MR. ALDOUS: I'll get this down pretty
                                                                57



1    soon.
2       Q    (By Mr. Aldous) Now, the next paragraph, which
3    is B, it says -- push it up.    It says if -- basically,
4    if the buyer agrees to exercise or exercises the buyback
5    option, then the following things are going to apply.
6    And then it says the buyer will not sell or convey any
7    right, title, or interest in and to the property to any
8    third party unless the seller breaches its obligation to
9    repurchase the property pursuant to the buyback option
10   due to no fault of the buyer.
11                Now as I understand this is -- would you
12   -- would you agree with me that as long as the seller,
13   being VSDH, has not breached any obligation, then the
14   Grosses have to wait until September 1st, 2009?
15      A    Yes, sir.
16      Q    If, as you understand it, VSDH breached the
17   agreement before that date, the Grosses were free to
18   sell it. Do you agree with that?
19      A    I'm not a lawyer, so I really can't answer
20   that.
21      Q    Well, just from your own understanding of the
22   agreement -- first of all, you read this addendum before
23   you signed it, right?
24      A    Yes, sir.
25      Q    And you had a lawyer on the deal with you.     In
                                                             58



1    addition to Mr. Shaw, you had Hap Stern, correct?
2       A    Yes, sir.
3       Q    And he's a lawyer that's worked with you on
4    real estate deals before?
5       A    Yes, sir.
6       Q    As you understood this, would you agree that
7    your understanding was that if VSDH breached the
8    agreement before September 1st, 2009, then the Grosses
9    were free to sell the property?
10      A    Again, that's a legal -- you're asking me for a
11   legal answer.    I'm not an attorney.
12      Q    Well, I'm just asking you for your
13   understanding.   I mean, just your understanding,
14   unformed by any legal analysis.
15      A    You would think so, but I don't know enough
16   about the law.
17      Q    Okay.    Would it be okay if I said you agree
18   subject to your lawyer overruling?
19      A    Sure.
20      Q    Okay.    Then it says the seller may commence
21   marketing the property, the seller being VSDH, right?
22      A    Yes, sir.
23      Q    Could commence marketing the property for sale
24   by May 2nd, 2009, and the buyer agrees to cooperate.
25   Now, would you agree with me that VSDH never marketed
                                                             59



1    this property after the -- the option date where -- I
2    mean, where they selected the buyback, where the Grosses
3    selected the buyback?
4       A    Correct.
5       Q    You guys never made any effort during this
6    period of time to market the property on behalf of VSDH?
7       A    Correct.
8       Q    Okay.   The buyer agrees to fully cooperate with
9    all marketing efforts of seller.   I think we already
10   talked about that. And then on or before 2009, unless
11   buyer and seller agree upon another stated date in
12   writing, buyer shall vacate the property and deliver
13   possession thereof to the seller, being VSDH, right?
14      A    Yes, sir.
15      Q    And the property shall be in the same
16   condition, blah-blah-blah.
17           Now, here's my question for you.   As of May
18   1st, 2009, VSDH had no intent to buy this property back;
19   isn't that right?
20      A    I totally have to disagree with that.
21      Q    Are you saying, sir, that you, as VSDH, on May
22   1st were willing and wanted to buy this property back if
23   you were required to by the contract?
24      A    If I was required to under the contract, sure
25   we could have bought the property back.
                                                               60



1          Q   Well, I'm asking a little bit different
2    question.   I'm not asking you whether you could have
3    bought the property back.    I'm asking whether you had
4    any intent as of May 1st, 2009, to buy this property?
5                  MR. CHAIKEN: Objection, Your Honor,
6    objection to the use of the word "you." It's vague.
7                  THE COURT: Overruled.
8          A   VSDH -- my position as the GP of VSDH were the
9    Grosses did not abide by the terms of the contract;
10   therefore, we were not going to buy the contract -- the
11   property back because they didn't abide by the terms of
12   it.
13         Q   Okay.   So that's what I wanted to hear.
14         A   Okay.
15         Q   So, as of May 1st, 2009, it was your position,
16   as VSDH, that the Grosses had not complied with the
17   contract; and, therefore, you had no intent as VSDH to
18   buy back the property?
19         A   Yes, sir.
20         Q   So would it be true that as of May 1st, 2009,
21   the Grosses could go out and sell the property because
22   there was no intent on your behalf to buy this back?
23         A   I don't -- that's not what the contract says.
24   No one asked me my intent.
25         Q   Let me ask you this.   Is it your position that
                                                             61



1    you could tell the Grosses that your -- VSDH is not
2    going to comply with this contract and they just have to
3    wait after that, until September 1st, 2009, to sell?
4       A    I never told the Grosses that we were not going
5    to buy the contract back.
6       Q    Well, isn't it true, sir, that after the
7    Grosses exercisedthe buyback option, which you said --
8    you admitted they did, you said that Van Shaw's handling
9    this matter for me now?
10      A    Yes, sir.
11      Q    And that's the way it was going to go.   You
12   were kind of in the mix during the sell, but when it
13   came to dealing with the contract and things, you bowed
14   out and let Mr. Shaw take over?
15      A    Yes, sir.
16      Q    And when Mr. Shaw spoke, he spoke for you and
17   VSDH?
18      A    I would say, yes.
19      Q    Now, was there any reason that you as VSDH or
20   you as yourself did not tell the Grosses in May of 2009,
21   look, we're not going to do this buyback because we
22   believe you already breached the agreement
                                              ?
23      A    Is there any reason why I did not tell them
24   that?
25      Q    Yes, sir.
                                                               62



1       A    I had no communication with them.
2       Q    Well, you had communication with him, you would
3    just say, "I'm referring you to Van Shaw"?
4       A    I had one phone call with Mr. Gross when I left
5    his house.   No, excuse me.   I had one phone call with
6    Mr. Shaw after I left Mr. Gross' house that I told
7    Mr. Shaw I'm referring it to -- referring all the rest
8    of this matter to you because of the violations in the
9    contract.
10      Q    So, let me get this straight.    When is it that
11   you believe you referred the matter to Mr. Shaw?
12      A    On or about -- you know, again, it's -- the
13   date's unclear to me, but it's going to be sometime in
14   2008 after I visited with Mr. and Mrs. Gross at their
15   home, immediately after on the car on the ride home.
16      Q    Did you ever express to Mr. and Mrs. Gross
17   that, listen, I believe you violated the contract at
18   this time?
19      A    Absolutely, when I was in their house.
20      Q    It's your testimony that you told them that
21   they were in breach of the agreement?
22      A    I asked them -- I told them I didn't get a
23   chance to review the plans and specs, and I was looking
24   at a half-built house.
25      Q    I guess we'll get back to that here in a
                                                                63



1    minute.   What I'm really kind of interested in right now
2    is I guess what we could agree with.    But you would
3    agree with me -- I'll move on.    You will agree with me
4    that Mr. Shaw was handling the buyback if it -- whatever
5    is happening in that regard after May 1st, 2009?
6       A      Yes, sir.
7       Q      And you agree with me that as VSDH, you had no
8    intent on following through with the buyback because of
9    your belief that the Grosses had breached the agreement?
10      A      At that time, I -- in May of 2009, I was -- I
11   had -- I was not in any discussion in May of 2009, me
12   personally, as part of VSDH.    Mr. Shaw and the Grosses
13   were in discussions, but not me.
14      Q      Right.   But you told us earlier that it was
15   your belief as of May 1st, 2009, that because the
16   Grosses had breached the contract in your mind, you did
17   not -- were not going to buy this back?
18      A      Again, I'm speaking on behalf of me and VSDH.
19   But, yes, that's -- I think you could probably say that
20   for Mr. Shaw and myself both.    Yes.
21      Q      Would it be helpful to you if we were to get
22   you two hats, one where you could put --
23      A      It really would.
24                 MR. CHAIKEN: Objection, Your Honor,
25   argumentative.
                                                             64



1                    THE COURT: Sustained.
2                    MR. ALDOUS: I'll withdraw that question.
3                    May I approach, Your Honor?
4                    THE COURT: You may.
5       Q    (By Mr. Aldous) The next provision of the
6    buyback is a casualty provision, which that really
7    relates to having insurance on the house and that sort
8    of stuff?
9       A    Yes, sir.
10      Q    That has nothing to do with what we're fighting
11   about, right?
12      A    Correct.
13      Q    Okay.     This Paragraph 2 relates to buyer's
14   improvements.    Do you see that?
15      A    Yes, sir.
16      Q    Now it says before commencing construction,
17   buyer will review with seller the plans and
18   specifications and receive general consent, consent not
19   to be unreasonably withheld, to proceed with the
20   improvements.    Do you see that?
21      A    Yes, sir.
22      Q    Now as I understand it, you disagree whether or
23   not you were provided an opportunity to review the plans
24   and specifications?
25      A    I don't disagree.     I know I did not get to look
                                                                65



1    at the plans and specs.
2       Q     Well, let's be clear about what you got.    The
3    contract itself had the specifications attached to it,
4    didn't it?   Do you see that?
5       A     Yes, sir.
6       Q     This is the Addendum B to the contract that we
7    referred to earlier, right?
8       A     Yes, sir.
9       Q     And you see there it says 2004 White Wing, 1092
10   square-foot addition casita with FR.     What is that?
11   Family room maybe?
12      A     It could be.
13      Q     Bedroom?    You know what a bedroom is, right?
14      A     Yes, sir.
15      Q     And then a shared pool bath; do you see that?
16      A     Yes, sir.
17      Q     And then for all of the specific work that was
18   going to be completed, it had units and then the cost
19   per unit for -- and the total cost for the addition,
20   right?
21      A     Yes, sir.
22      Q     Now, before -- and by the way, that's your --
23      A     Initial?
24      Q     -- initial down there, right?
25      A     Yes, sir.
                                                                 66



1       Q    So, I mean, there's no question that you saw
2    these specifications, right?
3       A    Yes, sir.
4       Q    And this is typically what would be attached to
5    a builder's contract whenever -- if you were having a
6    home built, they would say things like this and have the
7    specifications like this, wouldn't it?
8       A    I think that's a real general -- I mean, it's
9    detailed, but it's pretty general.   Yes, sir.
10      Q    Detailed but pretty general?
11      A    Well, what I mean by it is you -- it's got
12   paint, stain, like I'm looking under paint, stain.     Is
13   it going to be bright purple or is it going to be white?
14   I don't want bright purple on a wall.    I mean, I'm
15   saying it's very -- it's got some detail, but it's
16   general in nature.
17      Q    Well, let me ask you this.   What is it that you
18   think that you could get from architectural plans that
19   you couldn't get from these specifications?
20      A    You're going to get architectural plans with
21   more specifications, detail
                               ed specifications attached to
22   it from the architect.
23      Q    Could you describe for me what you mean?
24      A    When an architect designs -- I'm more coming
25   from the commercial industry.   But when the architect
                                                              67



1    designs a building or a home or something, they design
2    the floor plan.    And then they tell the contractor via
3    specifications what exactly they want them to build.
4    All right.    This looks more like a cost breakdown from a
5    contractor of what's going to be built in the house,
6    not, quote, specifications.
7       Q    So is it your contention that the Addendum B
8    attached to the contract is not the specification called
9    for in Paragraph 2?
10      A    Correct.
11      Q    So I didn't see anywhere else in the contract
12   where a specification was actually defined, did you?
13      A    Off the top of my head, no.    I just don't
14   remember the contract that well.
15      Q    Well, I did not see anywhere in the contract
16   where it says specification means X, Y, and Z. You
17   don't have any testimony about it right now, do you?     I
18   mean, you don't know that there's any kind of definition
19   in there, right?
20      A    No.    But I know what specifications are as I
21   explained just a minute ago.
22      Q    You know what specifications are for you as a
23   commercial real estate type person?
24      A    I would say most anybody in the real estate
25   business would know what that is, yes.
                                                                  68



1       Q       And then plans -- in terms of what plans are
2    required, that's not also defined in here, is it?
3       A       As a -- you know, I think it just uses the term
4    "plans."    So, no.
5       Q       So would you agree with me that plans can
6    sometimes -- more over time because they start off with
7    a draft and then they go to the next draft and sometimes
8    there's little changes, and so they have revisions.      Do
9    you agree with that?
10      A       Probably always being revised.   Sure.
11      Q       Yes.    And so it doesn't say whether you, you
12   know, give approval based upon the first draft or the
13   last draft or any potential revision therein, right?
14      A       Right.
15      Q       And then let's go through the next part.    You
16   see the next paragraph says the attached Addendum B is a
17   spreadsheet of improvements and costs proposed by the
18   buyer who made it to the property, right?
19      A       Yes, that's what we just talked about.   Those
20   were more not specs, but improvements and costs.
21      Q       Okay.    Buyer agrees to escrow funds totaling
22   $156,871 with the title company andenter into an escrow
23   agreement acceptable to seller and buyer
                                            that outlines
24   the proposed improvements to the property and the
25   disbursements of such funds, et cetera.
                                                                69



1                   Now you heard your lawyer stand up and
2    tell the jury or Mr. Hickok --I'm sorry.    Mr. Shaw that
3    this was -- never happened.    What is it that never
4    happened with regard to an escrow?
5       A       Well, I think what -- the contract is very
6    clear to me that the buyer, the Grosses, needed to take
7    $156,000, okay, and put it with the title company.      And
8    the title company is outlined in this contract also.
9    And the seller, VSDH, and the Grosses needed to enter
10   into what's called an escrow agreement, which basically
11   determines how the funds could move in and out of the
12   title company for their use.    And that never happened.
13      Q       Now, this agreement that -- so when you say
14   that the escrow agreement never occurred, are you
15   referring to the escrow agreement with the title
16   company?
17      A       It's a separate agreement with the title
18   company between the Grosses, ourselves, and the title
19   company is the agent holding the money.    And the title
20   company has to be party to this agreement too as to how
21   the money gets disbursed.
22      Q       Well, would you agree with me that the escrow
23   agreement was basically to make sure that the money that
24   was earmarked for the building of the addition didn't go
25   to some other purpose but actually went to build the
                                                             70



1    addition?
2       A     I'd would say that --
3                   MR. CHAIKEN: Your Honor, relevance.    The
4    document speaks for itself.
5                   THE COURT: Overruled.
6       A     I would say that's the general nature of the
7    agreement, to make sure it's held by a third party as a
8    fiduciary or somebody that's not involved in the
9    transaction.
10      Q     (By Mr. Aldous) All right. And you're aware
11   that the bank that was loaning the Grossesthe money to
12   build the addition acted as the escrow agent for this
13   particular addition?
14      A     I had no idea that that occurred until well
15   down the road. We thought the money never got put up.
16      Q     When you say "well down the road," what do you
17   mean?
18      A     I would say this was supposed to happen right
19   after the agreement was signed, so I'm going to say
20   several months down the road
                                .
21      Q     Well, this agreement was signed in June of
22   2007, right?
23      A     Yes, sir.
24      Q     The money changed hands in late June 2007,
25   right?
                                                                71



1       A       Yes, sir.
2       Q       When the money was changing hands, you knew at
3    that time that the bank that was loaning the Grosses the
4    money to build the addition was acting as its own escrow
5    agent?
6       A       I had no idea.
7       Q       If you would, take a look at Exhibit No. 5 in
8    your book there.       First of all, do you recall if you, on
9    behalf of VSDH, went to the closing before or after the
10   Grosses?
11      A       I don't recall if I even went to the closing.
12      Q       All right.    So in terms of a closing that
13   occurs, in other words, where the contracts going to be
14   consummated and all the money that's going to change
15   hands, it can happen where one party to the transaction
16   comes in and signs whatever has to happen, then another
17   party comes in and signs.      It doesn't have to happen at
18   the same time, right?
19      A       No, sir, it doesn't.
20      Q       And sometimes -- I think you were just alluding
21   to it. Sometimes you don'teven go in.        They bring them
22   to you and you sign them or you do it electronically,
23   right?
24      A       Or you do it at yourlawyer's office or -- yes,
25   sir.
                                                               72



1       Q       But in this case -- you know that in this type
2    of closing that you get a settlement statement, right?
3       A       Yes, sir.
4       Q       And Exhibit 5 is a settlement statement.
5                   MR. ALDOUS: May I stand to do this thing?
6                   THE COURT: Just remember the jury can't
7    see through you, which is why I have you stay seated.
8                   MR. ALDOUS: I'm very thin.
9       Q       (By Mr. Aldous) If you look at Exhibit 5, this
10   is a settlement statement for the closing of the sale
11   from VSDH to the Grosses, right?
12      A       Yes, sir.
13      Q       Now this indicates it was signed by the Grosses
14   down here and the closing agent for the title company on
15   6-27-07.    Do you see that?
16      A       Yes, sir.
17      Q       Now if you will -- I mean, I don't know.
18   Apparently somebody in the government created this form,
19   but it's not the easiest thing to read.     But if you
20   will, take a look at the part on the second page, Line
21   number 1303.
22      A       Yes, sir.
23      Q       You see that?
24      A       Yes, sir.
25      Q       Escrow for construction holdback, 156,871.    And
                                                                   73



1    then they have a holdback of 154,071. Do you see that?
2          A   Yes, sir.
3          Q   Is that the type of escrow you were expecting?
4          A   That is what I was expecting, yes, sir.
5          Q   Yeah.   Is it -- and the reason that it was only
6    154,071 is because Ken and Betsy had already spent
7    $2,800 for architectural engineering and permit.        Did
8    you get this also as part of your closing documents?
9    I'm showing you what's been marked as Exhibit No. 22 in
10   the notebook.     If you see there, it says builder's soft
11   cost draw request.     And this was all done at the same
12   time as the closing, 6-28-07.       Do you see that?
13         A   I see it.    Am I signing that document?     I can't
14   see the bottom.
15         Q   No.   I didn't see that you signed it, but it
16   was all part of the closing documents, which you would
17   get a package at the end, right?
18         A   I don't remember seeing this document.       My
19   attorney may have seen it, but I don't rememberseeing
20   it.
21         Q   Well, if you would, turn to Exhibit 98.
22         A   Excuse me.   Which one?
23         Q   98.   This is a settlement statement but it has
24   a different date on it. Do you see that?       It has a
25   settlement date of June 29, 2007.      Do you see this?
                                                               74



1       A    I'm looking at it.   Yes, sir.   I'm looking for
2    the settlement date. There it is, June 29.    Yes, sir.
3       Q    And it has -- this has the summary of the
4    seller's transaction, and then it's got your squiggly
5    line down there at the bottom, right?
6       A    Yes, sir.
7       Q    And that's your -- meant to be your signature
8    even though you can't read it? I mean that says -- to
9    you, that says Doug Hickok, GP, or tell me what that
10   says?
11      A    It says Douglas M. Hickok as GP for the
12   partnership.
13      Q    Okay.   Well, so this is the seller's side of
14   the closing statement that was reflected of the buyer's
15   side on Exhibit 5, right?
16      A    Yes, sir.
17      Q    So you have two different documents. You have
18   Exhibit 5, which is the closing from the side of the
19   Grosses, correct?
20      A    Yes, sir.
21      Q    And then you have Exhibit 98, which is the
22   closing side for VSDH, right?
23      A    Yes, sir.
24      Q    And those two together constitute the closing
25   statement, correct?
                                                                75



1       A      Yes, sir.
2       Q      Now, you don't deny that you would have been
3    given a copy of the closing statement signed by the
4    Grosses if they signed it two days before you closed,
5    which provided that they were putting this money into
6    escrow?
7       A      Not in all cases.    I don't know if I got it or
8    not because you're not -- you normally do not get all
9    the information from the other side's business.     They
10   try to keep it separate.      That's why you have two
11   separate sides, two separate papers.
12      Q      Let me just rephrase it then.
13      A      Okay.
14      Q      After looking at this, you agree that the money
15   was escrowed.     It was just escrowed with the bank rather
16   than the title company?
17      A      I -- looking at this, I have no idea where this
18   money got escrowed.
19      Q      All right.
20      A      It says -- excuse me.    It says escrow for
21   construction holdback.    And I do remember a letter going
22   from my attorney to the Grosses asking them where -- why
23   didn't you put up the money at the title company?
24      Q      Well, I just want to make sure what we're
25   arguing about.    All right. So if there really was an
                                                                   76



1    escrow for the holdback and it was done by the lender,
2    you'd have no objection with that, right?
3          A      Sure I would.
4          Q      Why is that?
5          A      Because I have no idea what the agreement is
6    with the lender.
7          Q      Oh.
8          A      Is it to do construction two years from now,
9    five years from now?         I don't know whattheir agreement
10   is.       How did they get the money?   I mean, did they --
11   you know, the key is this, is that you wanted to make
12   sure that the house got built, the improvements got put
13   in place.
14         Q      Well, what would happen if the improvements
15   didn't get put in place in this case?
16         A      Liens go on the house because the contractors
17   don't get paid.
18         Q      Well, what would you care?    You already sold
19   the house, right?      VSDH is out of it except -- unless
20   they build the addition and exercise the buyback, right?
21         A      Sure.
22         Q      So if they don't build the addition -- let's
23   say that they borrowed the money and they used it, I
24   don't know, to go to Shreveport and gamble, do you care?
25         A      Well, that wasn'tthe original intent of the
                                                                77



1    agreement.
2       Q       Right.   But, I mean, all you do is you say,
3    hey, you didn't use it on the addition.      You can't buy
4    it back.
5       A       Right.
6       Q       So really VSDH only had an interest in this if
7    there was actually going to be an addition built and it
8    was going to be something that they wanted to do the
9    buyback, right?
10      A       I think that's fair.
11      Q       All right.
12                  THE COURT: Is that a good stopping point,
13   Mr. Aldous?
14                  MR. ALDOUS: Yes, Your Honor.
15                  THE COURT: All right.     It's now 12:15.
16   We'll take a one-hour lunch break. During this lunch
17   break, the jury is under the same instructions you've
18   been briefly given.     You're not to discuss this case
19   among yourselves or with anyone else
                                        until such time as
20   the case has been submitted to youfor your
21   deliberations.      All rise. The jury is excused.
22                  (Jury exits the courtroom)
23                  THE COURT: All right.      We stand in
24   recess.               (Lunch recess taken)
25                  THE COURT: You may bring in the jury.
                                                             78



1                  (Jury enters the courtroom)
2                  THE COURT: You may be seated.
3                  Mr. Aldous, you may continue.
4                  MR. ALDOUS: Thank you, Your Honor.
5       Q    (By Mr. Aldous) Mr. Hickok, when we left off,
6    we were discussing the settlement statements.   So I'm at
7    Exhibit 98, which is your half of the -- that is VSDH's
8    half of the closing statement.   All right?   You see that
9    all these -- or the slots are numbered?   Do you see
10   that?
11      A    Yes, sir.
12      Q    So No. 504 says, pay off of first mortgage
13   loan, Chase Bank $1,952,730.89. Do you see that?
14      A    Yes, sir.
15      Q    Does that mean that when you guys sold this
16   house to the Grosses that you had to pay off a note;
17   that is, VSDH had to pay off a note in the amount of
18   $1,952.730?
19      A    Yes, that's true.
20      Q    Is that a -- the note that was part of the
21   construction cost for building the home originally?
22      A    That was a portion of it, yes.
23      Q    And is it true that the home, prior to the
24   Grosses coming and entering into this contract in 2007,
25   had been completed and sat empty for a while?
                                                                79



1       A     Yes, that's true.
2       Q     And I believe that --
3                    MR. ALDOUS: May I approach, Your Honor?
4                    THE COURT: You may.
5                    MR. ALDOUS: I hate to do this to you, but
6    I think your microphone is turned off.
7       A     You want me to speak?
8       Q     (By Mr. Aldous) I was having a little trouble
9    hearing you.
10      A     Okay.
11      Q     There you go.
12                   So, while VSDH was waiting for this home
13   to sell, it was paying the carrying cost on the note
14   that is reflected in Exhibit 98, No. 504?
15      A     Yes.    We had to pay theinterest carried to the
16   bank on the loan each month.     Yes, sir.
17      Q     I think in terms of building a spec home, you
18   wanted to sell relatively soon after you complete a
19   home, right?
20      A     The sooner the better, sure.
21      Q     And from your perspective as one of the
22   principals of VSDH, you know, you would theoretically
23   love it to sell while it's in construction, right?
24      A     Sure, you would, but that doesn't happen very
25   often.
                                                              80



1       Q     And then even if it doesn't sell during
2    construction, you'd like to sell within 90 days of when
3    the construction ended, right?
4       A     The sooner the better
                                  .
5       Q     And in this situation
                                  , the house did sit empty
6    for a while?
7       A     Yes, sir.
8       Q     During the opening statements of Mr. Chaiken,
9    he referred to the Grosses violating the contract and
10   moving into the house.   Do you recall that?
11      A     Yes, sir.
12      Q     When that happened -- first ofall, assume that
13   the Grosses received the keys or something from the
14   agent; is that right?
15      A     I have no idea how they got in the house to
16   this day.
17      Q     Well, suffice it to say, you didn't know that
18   they were moving in, right?
19      A     VSDH had no idea they were moving into the
20   house.
21      Q     I'm going to show you what's previously been
22   admitted as Exhibit 10 from your side of the equation.
23   You see here it's an email from you to Ken Gross dated
24   June 19, 2007.   Do you see that?
25      A     Yes, sir.
                                                                   81



1          Q      And you say, "Ken, I have no interest in
2    rehashing the past, but I must say that I was shocked to
3    hear that you had taken up occupancy in the house prior
4    to closing without notifying the seller for permission.
5    At this time, I'm only interested in the assurance that
6    you will close the sale this week.       Attached, please
7    find an amendment to the contract that requires you to
8    escrow an additional $25,000 of earnest money applicable
9    to the contract price and pay an extension of $500 per
10   day.      As outlined in the amendment, the document must be
11   executed and delivered to my attention by 4:00 central
12   standard time today.       If I am not in receipt of this
13   fully executed amendment, I can only assume that you
14   have no interest in purchasing the property and you will
15   immediately vacate the residence.       Thanks in advance."
16   Did I read that right?
17         A      Sure.
18         Q      So as I understand it, you, on behalf of VSDH,
19   said, look, we didn't give permission for you to move
20   in.       But since you did, I want to make sure you're going
21   to close, and so I have this amendment to the contract
22   and you either sign it or otherwise we're going to
23   assume you're not going to close?
24         A      Yes.
25         Q      All right.   That Exhibit 3 that's in that book
                                                               82



1    has an amendment to the contract, right?   It's on page,
2    Gross 00030.
3       A     I've got it.
4       Q     Okay.   The amendment says the first amendment
5    to the new home contract is entered into between VSDH
6    and the Grosses and then it has some recitals like
7    saying whereas the seller and blah-blah-blah.   You see
8    all that?
9       A     Yes, sir.
10      Q     And then it says amending provision, the
11   contract is hereby amended to provide that the date and
12   time of the closing to be fully consummated and shall be
13   extended to occuron or before noon Friday, June 29th,
14   right?
15      A     Yes, sir.
16      Q     Provided, however, that as a condition to the
17   following, they shall deliver to the title company a
18   fully executed copy of this amendment, a wire transfer
19   or cashier's check made payable to the title company in
20   the amount of 50,000, which shall be added to a portion
21   of the earnest money being held -- andearnest money
22   means that's money that the buyer will give to the title
23   company whereas if they don't follow through with it,
24   then the seller gets that money?
25      A     Yes, sir.
                                                                83



1       Q     And then a cashier'scheck made payable to
2    seller or wire transfer to the title company in the
3    amount of $8,500 as a non-refundable extension fee,
4    which shall not be credited towards the sales price.       So
5    that just means $8,500 on top, right?
6       A     Yes.
7       Q     And that $8,500 was to correspond for the
8    amount of time that they weregoing to be in the house
9    prior to closing,right?
10      A     I don't know if that's the exact way it worked.
11   It might have been from the original closing date and
12   now this contract's being extended.      So I'm not sure if
13   it's for being in the house or not.      I don't know if
14   there's a correlation there.
15      Q     Well, let me ask itjust a little differently.
16   This is the amendment that you referred to in your email
17   that is Exhibit 10, right?
18      A     That's probably the email that resulted in this
19   amendment.
20      Q     And this amendment was signed by you on behalf
21   of VSDH, right?
22      A     It was signed by VSDH.   Yes.
23      Q     Well, I mean, you signed it on behalf of VSDH,
24   right?
25      A     Okay.    Yes.
                                                              84



1       Q    And it was signed by the Grosses, right?
2       A    Yes, sir.
3       Q    So if you, that is VSDH, agreed to amend the
4    contract to allow them to extend the closing and knowing
5    that they were in the house, then you're not saying that
6    that's a breach of the contract because the contract was
7    amended, correct?
8       A    I am saying that -- on behalf of VSDH, I'm
9    saying we came to agreement after they basically jumped
10   in and moved into the house ahead of time, which is
11   very, very unusual.
12      Q    Well, let me rephrase it because I think we're
13   saying the same thing; that while it was an issue of
14   them moving into the house, for whatever reason, whether
15   they were mistaken, you were mistaken, whatever, it was
16   resolved by the amendment that became part of the
17   contract?
18      A    The answer to that -- there's no mistake about
19   moving in or moving out -- moving into a house.    You
20   should never move into a house because you don't have
21   rights to do so.    But it did get resolved by this
22   amendment.
23      Q    Okay.   So that's really not something for the
24   jury to consider one way or the other because it's just
25   been taken care of?
                                                                85



1       A    I disagree with that.
2       Q    Well, didn't you agree by this amendment to
3    make that a non-issue?
4       A    I agreed that -- that this amendment resolved
5    the problem.   I don't think that anybody ought to --
6    when you have an agreement, you don't move into somebody
7    else's property without asking them.    Those are two
8    separate matters.    But I did resolve it through this
9    agreement.
10      Q    All right.    And wouldn't it be true, sir, that
11   you don't know whether or not the Grosses conversed with
12   Mr. Buttemiller, who was the real estate agent that was
13   representing VSDH in the transaction?
14      A    I don't know, no.    About moving into the house?
15      Q    Right.
16      A    I have no idea.
17      Q    All right. So -- and then let's talk about the
18   rest of the addendum.    Just, if you would, I think this
19   might be helpful.
20                  MR. ALDOUS: May I approach, Your Honor?
21                  THE COURT: You may.
22      Q    (By Mr. Aldous) All right.     So we agreed that
23   VSDH and the Grosses entered into this contract where
24   VSDH, if certain conditions were met, agreed to buy back
25   this property, right?
                                                               86



1       A    Right.
2       Q    And you say that they didn't meet certain of
3    the conditions.    So I want to -- if you would, just tell
4    us what the reasons are why --I mean, first of all, you
5    agree VSDH did not buy the property back, right?
6       A    VSDH did not buy the property back.
7       Q    Okay.     Tell us the reasons why -- why didn't
8    VSDH buy the property back?
9       A    Well, we could start with the -- the one that's
10   most prevalent to me, being VSDH, is that we had a
11   contractual obligation that they were going to go and
12   improve -- well, they were going to let me review plans
13   and specs before improving the property.   And they went
14   ahead and improved the property without me reviewing
15   plans and specs or VSDH.    Let's make sure when I say
16   "me," in this capacity --I'll use my name -- I'll use
17   Hickok as the guarantor, but VSDH is -- or when I use
18   this terminology, VSDH is who I'm talking about at all
19   times unless I use my name as Hickok.
20      Q    Could I just put review plans as one of the
21   reasons why you didn't do it?
22      A    Right.
23      Q    All right.    So you contend you didn't review
24   plans and specifications prior to the start of
25   construction?
                                                                 87



1       A      Yes, sir.
2       Q      All right.   Any other reasons why VSDH didn't
3    buy this property back?
4       A      That's going to be the main reason.     There's
5    other reasons, which is they did not put up an escrow
6    account per our agreement.    We have a written
7    contractual agreement that they didn't adhere to.
8       Q      All right. Other than the escrow clause that
9    we've kind of alluded to briefly, anything else?      Review
10   plans, escrow?
11      A      And part of my -- as I'm contemplating to buy
12   back the house, if I have the obligation, if I've
13   determined that I have the obligation to buy back the
14   house, then they've sold the house before the end of the
15   period when I can buy the house back.
16      Q      September 1, 2009, right?
17      A      Yes, sir.
18      Q      Okay.   Any other reasons other than the three
19   that I have written up here?
20      A      Those are the three that come off the top of my
21   head right this minute.
22      Q      Well, I mean -- and just to be fair to you, I
23   know --
24      A      There's more.   But go ahead.
25      Q      But, see, that's just it.   You know, this is
                                                              88



1    the one chance I get with you.    So I want you to tell me
2    everything that you've got on your mind as to reasons
3    why VSDH didn't buy this house back.
4       A    Excuse me for a minute.    Let me review the
5    contract real quick.
6       Q    All right. Would you like some Jeopardy music?
7    I take that as a, no.
8       A    I think we can just rely on those three.
9       Q    All right.     By the way, before we came into
10   trial today, you had previously given testimony outside
11   of court in what's called a deposition, right?
12      A    I did have my deposition taken.    Yes, sir.
13      Q    And just for clarification, a deposition is
14   when you get sworn in and the lawyer on the other side
15   or whomever gets to ask you questions under oath?
16      A    Yes, sir.
17      Q    And even though it's not in court like this, it
18   still counts as testimony under oath, right?
19      A    Yes, sir.
20      Q    All right.     You had a chance to review your
21   deposition before you came to trial today, right?
22      A    Yes, sir.
23      Q    Any recollection that you have from your
24   deposition of anything other than these three things?
25      A    I'm sorry.     I can't think of anything else off
                                                                 89



1    the top of my head right now.      You're free to remind me.
2       Q    No.    That's all right.    I just wanted you to do
3    your thing.   Now, in terms of this particular deal, you
4    agree with me that the contract that is -- that's set
5    forth as Exhibit 3 was signed in June of 2007, right?
6       A    Yes, sir.
7       Q    On the page that's marked Page 29, it shows the
8    contract earnest money receipt of $50,000 on 6-4, 2007;
9    is that your recollection?
10      A    That's what the contract -- it looks like the
11   title company stated they received it then.
12      Q    Is that when the contract becomes binding?
13      A    That's when you have consideration between a
14   buyer and a seller.   Yes, sir.
15      Q    So would it be okay with you if I said that
16   6-4-2007 was the contract date?
17      A    Yes, sir.
18                  THE COURT: You may approach.
19                  MR. ALDOUS: I'm sorry, Your Honor.     You
20   know what?    I forgot.   I apologize.
21      Q    (By Mr. Aldous) 6-4-2007 contract date, right?
22   And we just looked at the change in the contract that
23   extended the closing to June 29, 2007, right?
24      A    Yes, sir.
25      Q    So we looked at your closing statement too,
                                                               90



1    which is Exhibit 98, which shows that you did some
2    things on the 29th, right?
3          A   Yes, sir.
4          Q   So we have 6-29-07 is the closing date, okay,
5    right?
6          A   Yes, sir.
7          Q   Now, prior to agreeing to the contract where
8    VSDH is selling this home, but agreeing to buy it back,
9    do you recall meeting with Ken Gross?
10         A   Rephrase that question for me, if you would.
11         Q   Do you have any recollection of meeting with
12   Ken Gross prior to the time this contract was signed?
13         A   No, sir.
14         Q   Now, you know that Mr. Gross remembers meeting
15   with you?
16         A   Yes, he -- I remember reading that in his
17   deposition.
18         Q   Is it you just don't have any recollection of
19   it?
20         A   I have no recollection of that.
21         Q   Just knowing the type of person that you are
22   and knowing that this is not the standard type deal,
23   wouldn't you want to know what sort of improvement
24   Mr. Gross is counting on in terms of adding to the
25   property?
                                                               91



1       A    Well, it's outlined in the contract.
2       Q    All right.    Did you -- as you sit here today,
3    and I know it's a long time ago, do you have any
4    recollection of getting any kind of information or input
5    as to what the addition would be except for what was set
6    forth in the contract?
7       A    No, sir.
8       Q    In terms of the ways this house was laid out,
9    was there any question in your mind as to where that
10   addition had to go?
11      A    Well, you could put it a lot -- there was a lot
12   of extra land. You could have done a lot of things to
13   that house.
14      Q    Well, you -- just a moment. I'm sorry.     I have
15   to get my brain to think for me right back here.
16                 So you have no recollection of meeting
17   with Mr. Gross before the sale, and you have -- the only
18   thing that you can recall definitively that you had
19   regarding what addition they were going to build was
20   what was part of the contract?
21      A    Yes, sir.     I had several conversations with the
22   broker, John Buttemiller, who told me Ken Gross was a
23   builder and he would like to buy the house and do some
24   improvements to the house, which subsequently led to all
25   the language in the contract.
                                                              92



1       Q     Well, you're an experienced real estate
2    investor.   Would you agree with that?
3       A     Okay.    Yes, sir.
4       Q     And when somebody's saying they want to make
5    changes to the home and that that's part -- wants to be
6    part of the deal, don't you want to know what those
7    potential changes are?
8       A     That's exactly why the language is in the
9    contract; that the plans and specs have to be approved
10   by us.
11      Q     I see.   But before you even agreed to the deal,
12   didn't you want to know what the vision was?   What are
13   you thinking about adding on to the house?
14      A     As far as VSDH was concerned, Mr. Gross didn't
15   have to do any improvements to the house --
16      Q     Right.
17      A     -- as far as we were concerned.   But if he did
18   any improvements to the house, I wanted to know that he
19   was going to do quality improvement if I had to do a
20   buyback on the house
                        .
21      Q     Well, how were the plans going to tell you
22   whether or not it's a quality improvement?
23      A     Well, the plans laid out -- they give you all
24   of the specs down to the detail, what color thelight
25   switches are to what kind of lights you're putting in
                                                                93



1    the house.   And you could put in something that's very
2    -- not very appealing, and you could put in something
3    that is very appealing.    And I used the example earlier
4    that you could paint the walls purple or black or
5    something like that,but the plans will say it's going
6    to be a white wall.    It's going to be this color of
7    tile.   It's going to be real detailed.
8       Q     Is it your belief that architectural plans will
9    show what color paint is going on the walls?
10      A     Absolutely.    I just got finished remodeling my
11   house, and I had to have the exactpaint color because,
12   you know, you can't put white down.       You put down
13   eggshell white by Sherman Williams paint.
14      Q     On the architectural plans?
15      A     On the specs that come as part of the
16   architectural plans.      Keep in mind,
                                           you're using the
17   term "architectural plans."     That is plans and specs in
18   my viewpoint.
19      Q     Uh-huh.   All right.   So, if you would, I want
20   you to turn to Exhibit 24 and 25.    Are you there?
21      A     Yes, sir.
22      Q     So Exhibit 24 is the notification -- or a fax
23   from Ken Gross to you, dated October 16, 2008.    And the
24   reason Exhibit 25 is in there is to show that you
25   actually -- your fax machine received the fax.
                                                              94



1       A    Yes, sir.
2       Q    You don't have any reason to dispute that, do
3    you?
4       A    No, sir.
5       Q    All right. So Exhibit 24 is this fax from Ken
6    Gross to you, Doug Hickok, right?
7       A    Yes, sir.
8       Q    And it has your fax number as (972)732-6644.
9    That's your fax number, right?
10      A    Yes, sir.
11      Q    And it says, "Subject, White Wing Cove.    Doug,
12   I hope all is well with you and that you enjoyed your
13   summer. We've run into Van a couple of times at the
14   club, but our paths have not crossed.   I am beginning
15   construction of the addition and wanted to show you the
16   plans for approval.   If you give me an address, I will
17   be happy to send them to you for your review."    You see
18   that?
19      A    Yes, sir.
20      Q    Now, I did not see any document that says you
21   sent them your address so that you could get a copy of
22   the plans.   Have you seen that?
23      A    I don't think I did.
24      Q    You didn't?
25      A    No, sir.
                                                               95



1       Q    Is there any reason why you didn't just give
2    them your address?
3       A    Well, I think Mr. Gross and I sat up a time to
4    meet at the house --
5       Q    Okay.
6       A    -- to look at the plans.
7       Q    So let's go through that.    But, first of all, I
8    want to just go through this part.    "In addition, I have
9    found the roofing material and it is a very good match."
10   Now you understood that to be the comparison of the
11   roofing material on the main house with what was going
12   to go on the addition?
13      A    It appears that way, yes.
14      Q    Is that the way you took it?
15      A    Probably at the time, sure.
16      Q    Yeah.   It says, "As you know, this roof is over
17   80 years old and came off of another home, so we had to
18   go on an extensive search.    You may recall that there is
19   some light green tiles and they were very difficult to
20   find, but I was able to locate those as well.   I wanted
21   to get as close of a match as possible." And that --
22   you would agree that that's a good thing, right?
23      A    That's a good thing.
24      Q    All right.     "We are purchasing the tile from
25   the same company that Paul Kramer used and they
                                                                96



1    personally inspected the home." Now Paul Kramer is the
2    general contractor that built the home for VSDH
3    originally, correct?
4       A    Yes, sir.
5       Q    All right.     "They also brought out samples that
6    looked identical, but they obviously donot guarantee an
7    exact match.    Do you want to see the tiles as well?    If
8    so, I could arrange to have them here at your
9    convenience."
10                   Do you recall if you let -- when you set
11   up the time, if you let Mr. Gross know that you'd like
12   to see the tiles there as well?
13      A    I do not recall.
14      Q    Okay. "I also wanted to let you know that I
15   have received little, if any, cooperation fromPaul
16   Kramer in completing many of the items that were on the
17   initial inspection report.    Further, he has refused to
18   warranty the home for the required one year on
19   workmanship and material.    I have attached our letter to
20   him with the punch listfor your review.     How do you
21   want me to proceed?    We certainly feel that he's
22   obligated to repair all the items on the list, many of
23   which were from the initial inspection."
24                   My question to you regarding that is:    Do
25   you recall ever discussing that with Mr. Kramer?
                                                                97



1       A      No, sir, I do not.
2       Q      Did you ever check with Mr. Kramer to see
3    whether or not he completed any sort of repairs out
4    there?
5       A      No, sir, I did not.
6       Q      Okay.   So as of October 16, 2008, you have this
7    fax from Ken Gross to you, right?
8       A      Yes, sir.
9       Q      And he's saying, hey, you want me to mail it to
10   you?   And you said, no, I'll come out, right?
11      A      I probably said something along those lines.
12      Q      Now you set up, I believe, a time to come out
13   and visit for October 31st.     Do you recall that?
14      A      I believe that was in an email with Mr. Gross.
15      Q      All right.   So why don't you look at Exhibit
16   No. 27.   Do you see it? Are you there?
17      A      Yes.
18      Q      From you on February -- Friday, October 31, at
19   8:43 a.m., "I just left you a voice message to inform
20   you that I cannot meet today at 11:00. Unfortunately, I
21   am out of town this weekend.     In summary, I will give
22   you a call early next week to schedule a time to get
23   together. My apologies."       Do you see that?
24      A      Yes, sir.
25      Q      Now, do you recall what it was that required
                                                                  98



1    you to go out of town?      Was it some sort of emergency,
2    vacation, what?
3       A       It looks like we were scheduled to meet on a
4    weekend.    I'm notsure.     It appears that way from that.
5    So my wife could have had me doing something at the last
6    minute or I -- something came up.        Idon't know what it
7    was.
8       Q       Well, you see this was sent on Friday, October
9    31st?
10      A       Yes, sir.
11      Q       "I just left you a message saying that we
12   cannot meet today at 11:00"?
13      A       Okay.    Excuse me.   Yeah. For some reason, I
14   couldn't do it that -- I had to do something.
15      Q       We don't know what it was?
16      A       Right.
17      Q       But can we all agree that it wasn't the
18   Grosses' fault that you weren't able to make the meeting
19   that day?
20      A       That was me -- unfortunately, I had set up a
21   time with him that I couldn't make it.
22      Q       Well, can we agree that it wasn't the Grosses'
23   fault that you couldn't make the meeting?
24      A       We can agree to that.
25      Q       All right.    Good.    So thenext -- the email
                                                               99



1    back to you was on October 31st at 8:57, a few minutes
2    after yours.     "No problem, Doug.   Just call me next week
3    and we can reschedule.    Thanks, Ken."    Do you see that?
4       A     Yes, sir.
5       Q     Was Mr. Gross accommodating to you?
6       A     Sure.
7       Q     Okay. Great.    Now, the next thing that happened
8    was you actually went out and -- to look at the
9    property, right?
10      A     Yes, sir.
11      Q     Do you recall when you went?
12      A     I don't.    I don't know the exactday or week.
13   Obviously, it looks like it had to be sometime in that
14   next week, or it could have been the following week.
15      Q     As we sit here today, you don't know whether it
16   was a week or a month after that day, do you?
17      A     I do not, no.
18      Q     At the time that you went out there, it was
19   your belief -- you said, I think, that it's your -- that
20   they had started construction?
21      A     No.     I was positive they started construction
22   when I went out there
                         .
23      Q     I misspoke.    I'm sorry.    The Grosses had
24   started construction on the addition when you went out
25   there?
                                                             100



1       A     When I got to the house --
2       Q     By the time you got there?
3       A     -- I noticed that they had started
4    construction.
5       Q     Right.   And as you sit here today, you can't
6    tell -- or you can't tell us how far along they were?
7       A     Well, I think I can give an estimate.   I mean,
8    I think in my deposition, I thought it was about 50
9    percent complete, only because there were walls up.   I
10   think I -- this is -- I think this is five, seven years
11   ago.   So there was like an addition added on over maybe
12   the garage or something, and it was walled up.   And you
13   could see they had done some roof work.    So it was what
14   we call in the business, it was weathered in.    In other
15   words, the outside was done, but none of the inside
16   finishes were in place or anything.
17      Q     So it's your belief, based on your memory as
18   you sit here today, that it was more than just framing?
19      A     It was -- well, Imay just call it framing and
20   roofing were in place.
21      Q     Okay.    Now, when you were there, you walked the
22   addition; is that correct
                             ?
23      A     Mr. Gross and I walked into the upper area of
24   the construction work.    Yes, sir.
25      Q     And you were offered an opportunity to review
                                                              101



1    the plans?
2       A       Yes, sir.
3       Q       Did you review the plans?
4       A       You know, sitting here today, I just remember
5    that I was kind of in more of a state of shock because I
6    thought I was going out to look at the -- you know, look
7    at the plans before the construction.    And now, all the
8    sudden, the cart was in front of the horse.    I'm looking
9    at the construction, and I haven't even seen the plans
10   yet.   But I did look at the plans.    And did I look at
11   them in detail?    No, I didn't look at them in great
12   detail.
13                  MR. ALDOUS: May I approach, Your Honor?
14                  THE COURT: You may.
15      Q       (By Mr. Aldous) I'm going to show what is
16   marked as Exhibit 125, but not admitted yet.
17                  MR. ALDOUS: Do you want me to show you
18   first?
19                  THE COURT: I take it that defense counsel
20   has already seen it.
21                  MR. ALDOUS: Thank you, Your Honor.
22                  THE COURT: You may approach.
23      Q       (By Mr. Aldous) Let me show you this very
24   unwieldy set of plans here.    And my question to you,
25   sir, is:    Can you tell us if these are the plans you saw
                                                              102



1    on that day when you were there?
2       A    There is no way for me to know.     I couldn't
3    tell you.
4       Q    And -- fair enough.    Let me ask it a little
5    differently.    Is it you don't recall -- no matter what I
6    put in front of you, you wouldn't recall?    In other
7    words, even if I knew these were the plans,you just
8    wouldn't recall?
9       A    Here's what I recall.    They were documents.    I
10   mean, these are typical plan sizes, but Mr. Gross did
11   have plans.    And we flipped through a couple of pages,
12   and what was the contents I cannot recall.
13      Q    Okay.    So, to summarize, you looked at plans,
14   they looked like this, but you can't tell if these are
15   them?
16      A    Correct.
17      Q    So in the fall of 2007, did you have a child
18   who was looking for colleges at that time?
19      A    He graduated -- my first child graduated high
20   school in 2009, so the fall of 2000 -- it might be a
21   little early, so I don't know.
22      Q    I'm sorry, 2008.     I said 2007.
23      A    Okay.    Yes, sir.   I would say in 2008 my child
24   was probably looking to go to school somewhere.
25      Q    Do you recall going on some college visits with
                                                            103



1    your child?
2                    MR. SHAW: Your Honor, I object as to
3    relevance.
4                    THE COURT: Mr. Aldous, what's the
5    relevance?
6                    MR. ALDOUS: There's a -- my clients will
7    testify as to a specific discussion with him concerning
8    college visits and that sort of thing, and I wanted to
9    see if that was within the realm of what he --
10                   THE COURT: I'll give you a little leeway.
11                   MR. ALDOUS: Thank you.
12      Q      (By Mr. Aldous) Were you going on college
13   visits with your oldest child at that time?
14      A      I would probably guess so.     Yes, sir.
15      Q      Do you recall discussing that with the Grosses?
16      A      We did.   We had some, you know, just friendly
17   chat, but I do not recall the content of the
18   conversation.
19      Q      Okay. Do you recall at any point in time
20   suggesting that you did not like the way the addition
21   looked?
22      A      I think my response to them was -- it was
23   really straightforward and candid.     Mr. Gross, I haven't
24   approved these plans.    You are -- you know, you've
25   already started construction.
                                                                  104



1          Q      You specifically recall that?
2          A      I specifically recall that.   And then going
3    from there, did we -- did we talk about the improvements
4    and what they looked like?      We walked all around the
5    house.      And I think maybe in a -- in a friendly sense I
6    said, hey, this looks good, you know.        But one thing
7    that does jump out at me is they had also done some work
8    in -- right off the kitchen area, which was part of the
9    existing house. They were changing part of the existing
10   house and not -- it wasn't new construction.
11                     It was some -- lining up some bookcases or
12   TV cabinet or something, and that kind of jumped out at
13   me.       And then Mr. Gross, I believe, told me he had spent
14   maybe 40 or $50,000 more out of his pocketand wanted to
15   know maybe is there a chance that maybe you might work
16   with me on that.      And I did say, no, to that.
17         Q      Now you're sure that that conversation took
18   place, even though the construction was still ongoing?
19         A      There is only -- I've only talked to Mr. Gross
20   once to my recollection, and it was at his house on that
21   day.
22         Q      Is there anything else that you specifically
23   recall other than saying you didn't approve the plans
24   and you saw that there's some movement in the house?
25         A      The only other thing I specifically recall is
                                                             105



1    being introduced to Mrs. Gross, who is in the kitchen
2    area as we were going -- I think as Mr. Gross and I were
3    going out the door.
4       Q     Now, did you ever say to Mr. Gross, you know
5    what, I don't like the way this looks?   I would change
6    this or that or do you have any suggestions as to what
7    you would have done differently even as of today?
8       A     No.   I think -- honestly, I'm sitting there
9    thinking, wow, did my partner, Van Shaw, approve these
10   plans and I didn't know about it when I walked into this
11   house.   That's what I was thinking.   And I didn't know
12   the answer to that until I walked outside of it because
13   I did say, Mr. Gross, you did not have me approve these
14   plans.
15      Q     Did you at any point in time, even as of today,
16   say what you believed to be a different way of or better
17   way of doing it, the addition?
18      A     I don't think I would have.   I mean, everybody
19   has got their own opinion of what they like.     I don't
20   know that I would have said something like that.
21      Q     All right.   Now the plans continued.   That is,
22   the building continued, and it was complete.     And if you
23   would, turn to Exhibit No. 30.   Are you there, sir?
24      A     Yes, sir.
25      Q     This is dated February 23rd, 2009, sometime,
                                                                  106



1    obviously, after the fall.    It says, "Doug, I'm finished
2    with the addition and just wanted your final inspection
3    and approval.    I ended up going above and beyond some of
4    the items, including a larger wet bar," you know,
5    et cetera, et cetera. Do you see this?
6       A       Yes, sir.
7                    THE COURT: Can the jury see behind that
8    sign?
9                    MR. ALDOUS: I'm trying not to move it.
10                   THE COURT: No, no.   I'm talking about
11   your --
12                   MR. ALDOUS: Oh, sorry.   Permission to
13   move that?
14                   THE COURT: Yes, you may.
15      Q       (By Mr. Aldous) You see at this point in time,
16   he says in that last paragraph, "In total, I'm
17   approximately 20 to 25,000 over our budget. Of course,
18   I will eat that amount but wanted approval on everything
19   else.   In general, I would like for you to walk the
20   property and provide your overall approval. I showed it
21   to Phoebie and Jeff in the sales office, and they think
22   it is really going to add value as we originally
23   planned.    Please let me know when you can come by.     I
24   hope all is well with you."    Do you see that?
25      A       Yes, sir.
                                                              107



1       Q       Now, you never went by to look at it; is that
2    correct?
3       A       No, sir.
4       Q       You never responded to this by saying, hey,
5    listen, you already breached the agreement by not giving
6    me the plan?
7       A       I think my response maybe to the Grosses at
8    that time was you're going to -- you're dealing with
9    Mr. Shaw after this point. I didn't -- this probably got
10   sent to me, and I don't know if I did forward it on to
11   Mr. Shaw.    I presume I did, but he was going to handle
12   it from here on out.
13      Q       Well, you see that this is dated February 23rd,
14   2009?
15      A       Yes, sir.
16      Q       I show that the -- that when you said that Van
17   was doing it wasn't until they actually exercised the
18   option in April, late April.    Do you have anything to
19   show differently?
20      A       I don't have anything to show differently,
21   other than I do know this.     I think I had a conversation
22   when I left the Grosses' house after looking at the
23   plans.   I immediately got in my car and I called Van
24   Shaw.    And I said, "Van, did you approve the plans for
25   the Grosses to add this addition on to the house?"
                                                             108



1                 And he immediately said, no, and he then
2    said, "Hey, Doug, let me take it from here."   And that's
3    really about when I kind of stepped out of the -- you
4    know, the role of being the liaison on this project.
5       Q    Do you recall sending an email back to
6    Mr. Gross in response to this February 23rd, 2009, email
7    saying, "Hey, I'm not dealing with this anymore.
8    Mr. Shaw is"?
9       A    I may have, but I do not recall.
10      Q    Let me put it this way.   Well, if you will,
11   look at Exhibit 35.   You see that?
12      A    Yes, sir.
13      Q    The one on the bottom says, "Doug, I hope this
14   message finds you well.   We sent this notice via fax as
15   well, but wanted to be sure you received this.   Per our
16   contract dated 6-12-09 to purchase the home located at
17   2004 White Wing Cove in Westlake, please be advised that
18   we have hereby notified you of our decision to exercise
19   the option to sell back the property for the original
20   sales price of $2,851,871 on or before September 1st,
21   2009. As such, please advise us if you intend to market
22   the property or if you would like to discuss any other
23   options, including an early buyback or otherwise."
24                Now, it would appear from this email from
25   Betsy Gross that they did not know at that point in time
                                                              109



1    that you were asserting that they somehow breached the
2    agreement by not providing you plans and specifications.
3    Would you agree with that?
4       A      I think they would have known they breached the
5    agreement by not giving me plans and specs because they
6    didn't.
7       Q      So they just ignored that in this email?   Is
8    that what --
9       A      They absolutely ignored it in the process of
10   the contractual obligation.
11      Q      Okay.   Then your response on May 1st, 2009,
12   was, "I forwarded the attached onto Van Shaw.    He is
13   handling this matter."    Now, sir, can you tell the jury
14   another exhibit that shows that that -- that before this
15   date, May 1st, 2009, you told the Grosses to deal with
16   Van Shaw?
17      A      I don't think I had any discussions with the
18   Grosses to tell them to deal with Van Shaw.
19      Q      Whether by email or otherwise?
20      A      No.   I didn't have any case to talk to -- I
21   don't think to Mr. Gross or anybody talked to me to tell
22   them to deal with Van Shaw.
23      Q      All right.   So your testimony earlier when you
24   received the final walk-through approval type letter
25   from Ken Gross in February of 2009, I didn't see any
                                                              110



1    reference anywhere that said you had referred them to
2    Van Shaw as a result of that email.
3       A     I think my response to you, sir, was that at
4    that point in time, that this matter had already been
5    referred to Van Shaw from my being to Van Shaw, I think
6    is exactly what I said to you.
7       Q     All right. Maybe I just didn't hear it right.
8    But what I'm asking is:   You didn't tell the Grosses
9    February 23rd, when you received the email saying, "I'm
10   finished.   Come look," you didn't say this matter has
11   been turned over to Van Shaw?
12      A     I hate to sound redundant, but I met with the
13   Grosses one time.
14      Q     Well, even if you didn't --
15      A     And I met with them at --
16      Q     -- meet with them, you could have sent them an
17   email.
18                 THE COURT: Wait a minute.     You cannot
19   both talk at the same time.     The court reporter can only
20   take down one person.     So showone another the courtesy
21   of allowing the other to finish before you start.
22                 MR. ALDOUS: I apologize, Your Honor.
23      Q     (By Mr. Aldous) Mr. Hickok, just -- whether you
24   spoke to them directly or not, did you send them an
25   email, a letter, a fax, anything to indicate that the
                                                              111



1    matter had been turned over to Van Shaw prior to this
2    May 1st email that I showed you?
3       A     I don't believe I did.    And I don't believe I
4    had an obligation to tell them that.    I think Mr. Shaw
5    started communicating with them.
6       Q     Okay.   I just -- I'm probably not asking my
7    questions very good.    But -- so did you respond in any
8    way, email, voice, or otherwise to the Grosses to their
9    request for you to come back and look at the property on
10   final walk through in February of '09?
11      A     As I said, no, sir.   I did not respond to that
12   email.
13      Q     Thank you.
14                MR. ALDOUS: May I approach, Your Honor?
15                THE COURT: You may.
16      Q     (By Mr. Aldous) Now, when you turned this
17   matter over to Van Shaw as of May of 2009, do you know
18   what reasons Mr. Shaw gave the Grosses as to why VSDH
19   wasn't going to buy it back?
20      A     Go ahead.    Please restate that one more time.
21      Q     Yeah.   That probably wasn't a good question.
22   Let me rephrase it.     Do you know
                                       what Van Shaw told the
23   Grosses as to why VSDH wasn't going to buy it back?
24      A     I do not.
25      Q     I believe that you were copied on this.   Turn
                                                             112



1    to Exhibit 65.   Are you there?
2       A     Yes, sir.
3       Q     So on May 18th, the bottom email, it shows
4    Betsy Gross emailing Van Shaw, May 18, saying, "Hi, Van.
5    Thanks for your reply.   I'm traveling this week,"
6    blah-blah-blah. And then there's, "As mentioned, we are
7    very interested in discussing several options regarding
8    the buyback and below are several possible steps.
9    Obviously, we can follow the existing terms and
10   consummate the buyback in September.   However, we are
11   very interested in one of several alternatives;
                                                  execute
12   an early buyback with a discount off the buyback price
13   for said early termination, execute an early buyback but
14   include a rental agreement where we stay in the home up
15   until September or even longer depending on the terms,
16   C, an outright purchase by us at a discounted price.
17   Recall, we gave full asking price at the time when a
18   significant discount off asking price would have been
19   realistic since the home had been sitting vacant for two
20   years.   Further, as we know too well, the economy in
21   home sales have seriously at that time" -- I think that
22   probably should say seriously tanked since that time,
23   but anyway.
24                 MR. CHAIKEN: Objection, argumentative.
25                 THE COURT: Overruled.
                                                              113



1       Q    (By Mr. Aldous) "A combination ofone of the
2    above and/or purchase of one Lot 111, which we
3    previously mentioned to Doug but never heard back.      Let
4    me know next time you and ideally Doug will be out in
5    this direction so we can set up a time to meet,maybe
6    after you give Frank another run for his money on the
7    golf course."
8                    Now above that is Mr. Shaw 's statement.
9    "Betsy, thank you for your email today.    I'm glad to
10   talk, but I want to make sure you're aware that the
11   entity that sold the home is not financially solvent.
12   So that will no doubt have a huge impact on our
13   discussion.    Not sure when I will be out that way, but
14   maybe we can meet somewhere else.    I'm not sure where
15   your office is, but that may be a possibility." Do you
16   see that?
17      A    Yes, sir.
18      Q    Now at that time, was VSDH financially
19   insolvent?
20      A    No.     I don't know what -- I don't know what
21   Mr. Shaw is saying from a standpoint of having
                                                  a few
22   assets that had some assets.    Did it have any cash?    It
23   had no cash.
24      Q    Do you have your deposition up there?
25      A    I don't have it with me.
                                                             114



1                   MR. ALDOUS: May I approach, Your Honor?
2                   THE COURT: You may.
3       Q    (By Mr. Aldous) So this is a copy of your
4    deposition I'm handing you so that you can look at it
5    and refer to it if you need to.   All right?
6       A    Okay.
7       Q    To your knowledge, has VSDH been --
8                   THE COURT: Mr. Aldous?
9                   MR. ALDOUS: I'm sorry, Your Honor.
10                  THE COURT: What are you attempting to do?
11                  MR. ALDOUS: I'm going to ask him the
12   question again.
13                  THE COURT: Okay.   Page and line?
14                  MR. ALDOUS: Oh, this is at Page 54, Line
15   20, but I'm not impeaching him yet.     I'm just asking a
16   question.
17                  THE COURT: I understand, but you need to
18   show it to the Court
                        .
19                  MR. ALDOUS: I'm sorry.
20      Q    (By Mr. Aldous) Just forget the deposition.
21   Please answer this question.   To your knowledge, has
22   VSDH been insolvent since the time of this transaction
23   at any point in time?
24      A    You want me to answer that?
25      Q    Yes.
                                                              115



1       A     Absolutely not.
2       Q     Perfect. Do you know why Mr. Shaw was telling
3    the Grosses that the entity that sold thehome is not
4    financially solvent?
5       A     I don't know if Mr. Shaw looks at it the same
6    way I do.   There's a -- you know, if you -- you could
7    have a hundred million dollars in property and you can't
8    go buy a Coke because you don't have any cash.    So I
9    don't know what Mr. Shaw is thinking.
10      Q     I see.   So maybe y'all just think differently
11   and that maybe a better way to say it would have been we
12   are cash poor at the moment?
13      A     That would have been more accurate.
14      Q     All right.    If you would, take a look at
15   Exhibit 54.   It may not be in that notebook.   I'm sorry.
16      A     It is not.
17                 MR. CHAIKEN: I'm sorry.    I didn't hear
18   the reference number.
19                 THE COURT: Fifty-four.
20                 MR. CHAIKEN: Five, four?     Thank you,
21   Judge.   Forgive me. I didn't rise
                                      when I addressed the
22   Court.   Forgive me.
23                 MR. ALDOUS: May I approach, Your Honor?
24                 THE COURT: You may.
25                 MR. ALDOUS: This has not been admitted
                                                               116



1    yet.
2                      THE COURT: You may approach.
3       Q       (By Mr. Aldous) Mr. Hickok, I'm handing you
4    what's been markedas Exhibit 54.        Would you take a look
5    at it for just a second
                           ?
6       A       Yes, sir.
7       Q       Is this a series of emails on which you were
8    copied between the Grosses and Mr. Shaw?
9       A       Yes, sir.
10                     MR. ALDOUS:   Your Honor, we move to admit
11   Exhibit 54.
12                     THE COURT: Any objections?
13                     MR. CHAIKEN: Objection, lacks foundation,
14   hearsay.
15                     THE COURT: Overruled.
16      Q       (By Mr. Aldous) So if we turn to the last page
17   and start with the oldest email first on Exhibit 54,
18   it's dated June 2nd, 2009.       Do you see that?
19      A       Yes, sir.
20      Q       By the way, on the two lines, it says Van Shaw
21   and D. Hickok at Marquisgroup.net.        Is that one of your
22   companies, Marquis Group?
23      A       Yes, sir.
24      Q       Okay. So that is your email address?
25      A       Yes.
                                                              117



1       Q       It says, "Dear Van and Doug, I heard you guys
2    were out here beating up on Wally last week."      Now
3    that's just a way of saying you were playing golf with
4    him, not that you were really beating Wally up, right?
5       A       I believe so.
6       Q       I mean, you would remember if you really beat
7    him up, right?
8       A       Wally's a lot bigger than I am.
9       Q       All right.   "Since you come here often, can we
10   set up a time to get together with both of you to
11   discuss the buyback?       As you are aware, we have timely
12   invoked the buyback option and willfully cooperate with
13   any efforts to list the home since our listing time
14   expired as of the buyback notice.      I suspect you will
15   want the home listed and shown, and we'll be happy to
16   help with those efforts. It is our understanding that
17   VSDH Vaquero Venture is still in existence; although,
18   you have stated that it is no longer financially
19   solvent. Regardless, both of you have personally
20   guaranteed the buyback in the event VSDH fails to
21   perform under the terms of the buyback option.      As I'm
22   sure you can understand, we need to start looking for a
23   new home immediately so that we can move out by
24   September 1, which is only 90 days away.      Time is of the
25   essence.    So please let us knows when it's a good time
                                                               118



1    and place to meet."     You see that?
2       A       Yes, sir.
3       Q       Now the response was from Van Shaw, and it
4    doesn't reflect as to whether or not you actually
5    received it. But if it was a reply, it says, "Thanks
6    for your last email.     In reply, I do not recall that
7    Doug or I personally guaranteed theagreement as you
8    state and do not have a copy of the same. I ask that
9    you send me a copy of that to me. I will need to examine
10   that and the underlying agreement you refer to."       Do you
11   see that?
12      A       Yes, sir.
13      Q       Now, first of all, you had already sent this
14   agreement over to Mr. Shaw, hadn't you?
15      A       This agreement, I'm not sure what you're
16   referring to.
17      Q       Well, the buyback agreement and all that.
18      A       Again, you're going to have to be more specific
19   for me.
20      Q       Well, how many agreements did you have with the
21   Grosses?
22      A       Well, I didn't even know that you were talking
23   about an agreement with the Grosses. You said, "this
24   agreement."
25      Q       I'm sorry.   Let me rephrase.
                                                              119



1       A       Be more specific, please.
2       Q       I'll be more specific.   You had already emailed
3    the agreement to Mr. Shaw as soon as you received the
4    first fax saying we want to exercise a buyback?
5       A       Are you talking about thebuyback agreement?
6    You're saying, "the agreement."     The buyback agreement,
7    the contract?
8       Q       Isn't it true, sir, that you sent both the
9    contract and the buyback provision?
10      A       Mr. Shaw probably had a copy of the contract
11   and the buyback agreement or the addendum,the whole
12   contract from the day we closed the contract with the
13   Grosses.
14      Q       Do you know why Mr. Shaw is asking for a copy
15   of that from Mrs. Gross?
16      A       Well, the -- make sure I understand this
17   correctly, Mr. Aldous.     You're talking about the
18   contract or the agreement.     He's talking about a
19   guarantee agreement, and there isn't a guarantee
20   agreement that exists.
21      Q       There isn't?   That's interesting.
22      If you would turn to Page 92 -- or Exhibit 92.       I'm
23   sorry. Do you see the email from you to Van Shaw, Gross
24   contract for sell for your review?
25      A       Yes, sir.
                                                              120



1       Q     Do you see that?   Do you see the date on it,
2    April 29, 2009?
3       A     Yes, sir.
4       Q     That's one day after they faxed you the notice
5    that they wanted to exercise the buyback?
6       A     Sure.
7       Q     Did you see all the stuff attached to it?
8       A     Yes, sir.
9       Q     It includes the whole contract that was
10   executed, right?
11      A     It does, but it doesn't include a guarantee
12   agreement.
13                 MR. ALDOUS: May I approach, Your Honor?
14                 THE COURT: You may.
15      Q     (By Mr. Aldous) On Exhibit 3 -- or you can look
16   even on Exhibit 92, the one that you sent over to Van
17   Shaw.   It has in the addendum, Addendum A, the specific
18   paragraph that is shown right there in front of you on
19   the easel. You see that?
20      A     I can't see the easel, but I can see the
21   paragraph.
22      Q     Well, here.   I'll put it up here for you.   Doug
23   Hickok and Van Shaw as partners in VSDH Vaquero, Ltd.,
24   each hereby personally guarantee seller's obligations
25   under the buyback option granted from VSDH to the buyer
                                                              121



1    hereunder.   In the event VSDH fails to perform fully
2    under the terms of the buyback option, each of its
3    partners set forth herein above shall be personally
4    responsible jointly and severallyto perform the
5    obligations of VSDH under the buyback option.    Do you
6    see that?
7       A    I see the statement.     Yes, sir.
8       Q    What do you call that?
9       A    A statement.
10      Q    Just a statement?
11      A    Yes, sir.
12      Q    Does it say that you personally guaranteed the
13   seller's obligations?
14      A    It says -- it is a statement that says that,
15   but there is no executed agreement.    Mr. Aldous, I've
16   been with real estate for a long time, and I have signed
17   lots of guarantees.    And a guarantee is a separate form.
18   As I told Mr. Buttemiller -- I mean, we would look at
19   guaranteeing this project
                             , but I had to get Van to
20   agree, Number one.    And I had to have my attorney review
21   the guarantee agreement.    We never got the guarantee
22   agreement.   And, you know, Van wasn't about to guarantee
23   this thing, and neither was I.
24      Q    Is that -- is it your testimony that because of
25   your experience, you know that this isn't a proper
                                                            122



1    contract term?
2       A    Absolutely.
3       Q    Let's just run through this.    Does this at
4    least appear to say from a contract's perspective that
5    you and Van Shaw each personally guarantee sellers --
6    that is VSDH's obligation under the buyback option?
7                  MR. CHAIKEN: Objection, Your Honor.
8    Calls for a legal conclusion as phrased.
9                  THE COURT: Overruled. He said he's
10   familiar with this -- this process and what a guarantee
11   looks like.   So I'll allow him to answer based on his
12   personal knowledge.
13      A    Again, restate the question.
14      Q    (By Mr. Aldous) Sure.     You would agree with me
15   that at least the way this is worded, you, Doug Hickok,
16   and Van Shaw personally -- each personally guarantee
17   VSDH's obligations under the buyback option?
18      A    It -- the wording, yes, verbatim, the way you
19   read that, that says that.   But a guarantee has to have
20   a personal signature attached to it, and I don't think I
21   can speak as VSDH for Mr. Shaw.    Or if it says
22   Mr. Aldous guarantees this, that doesn't mean anything.
23   It has to have a signature attachedto it.
24      Q    Mr. Hickok, you're not a lawyer, are you?
25      A    No, sir.
                                                              123



1       Q      Did somebody tell you that you wouldn't be
2    responsible on this guarantee if you didn't sign it in a
3    certain way?
4       A      No, sir.   I knew that, that you have to have an
5    agreement.    You have to have a guarantee agreement like
6    the bank puts in front of me or I would put in front of
7    anybody else that says I personally guarantee this.
8       Q      All right.   So that's your personal belief,
9    right?
10      A      That's my personal belief.   I'm not a lawyer,
11   though.
12      Q      All right.   So why didn't you just cross this
13   out?
14      A      There was no reason to cross it out.
15      Q      Well, Exhibit No. 1, which has previously been
16   admitted, is a letter or fax from Ken Gross to John
17   Buttemiller dated 5-25-07.    That is during the
18   negotiation time for this sale of this contract, right?
19      A      Right.
20      Q      And this says in here, "I've marked a insert.
21   When completing the improvements, buyer
                                           will review with
22   seller the plans," et cetera.    You want to rely on that
23   one, right?
24      A      Okay.
25      Q      This says, "We would like to suggest an
                                                               124



1    addendum number 4 that reads, "Doug Hickok and Van Shaw,
2    person -- as partners in VSDH Vaquero Venture, Ltd.,
3    each hereby agree to personally guarantee seller's
4    obligation under the buyback option granted by VSDH to
5    buyer hereunder."
6       A    Yes, sir.
7       Q    So, you see that it was important enough to
8    Mr. Gross to include within the contract the addendum?
9       A    I didn't see the rest.     Could you put that top
10   -- I don't even know where that document came from.
11   Could you go all the way to the top
                                       ?
12      Q    Yeah.
13      A    That's between --
14      Q    It's number one in your notebook if you want to
15   look at it.
16      A    It's to John -- to John from who?
17      Q    From Ken Gross.     You see that?
18      A    Okay.    Now I can see the whole thing.   Okay.
19   All right.    Right.   And Mr. Buttemiller called me about
20   that.
21      Q    All right.     And then it showed up in the
22   contract?
23      A    Yes, sir.
24      Q    And your initials are right down there at the
25   bottom, right?
                                                             125



1       A    My initials are on behalf of the VSDH Venture
2    just like --
3       Q    Well, did you --
4       A    -- it is on every other page of the contract.
5       Q    I apologize. I didn't mean to interrupt you.
6                   But what I'm saying is, if you believe
7    that you could not be held responsible under this
8    personal guarantee, why didn't you cross it out and say
9    this isn't effective
                        ?
10      A    I didn't have to because there's no guarantee.
11   You have to have a guarantee agreement, Mr. Aldous.     I
12   know that much.
13      Q    Are you saying that you wanted the Grosses to
14   believe that this was part of the contract when you
15   believed that it wasn't?
16      A    No, sir.    I'm not saying that whatsoever.   I am
17   saying that I expected to go to closing and there would
18   be a guarantee agreement or something there at closing,
19   and there was never a guarantee agreement.
20      Q    So you agreed with it, but the fact that there
21   was no guarantee agreement meant you were off the hook?
22      A    No.    That just means I'm not going to -- I'm
23   not raising my hand and going I didn't -- there's no
24   guarantee agreement here at closing.   I'm just signing
25   the documents I'm supposed to sign at closing.
                                                              126



1       Q     So is it kind of like, "You know what?      They're
2    not going to make me do it.    Then I'm off the hook"?
3       A     Well, you're not giving the whole state of
4    affairs here.    There's two things.    I told
5    Mr. Buttemiller that Van Shaw -- I had to talk to Van
6    Shaw.   The intentwas there to guarantee this -- this --
7                    MR. ALDOUS: I apologize, Mr. Hickok.     But
8    I'm going to object because that is hearsay when you're
9    talking about what was said outside of court.
10                   THE COURT: Sustained.
11                   MR. ALDOUS: And I also move to strike and
12   have an instruction provided.
13                   THE COURT: Motion to strike is granted.
14   The jury is to disregard any statements that Mr. Hickok
15   says that Mr. Shaw made.
16      Q     (By Mr. Aldous) Sir, Mr. Hickok, I just want to
17   know.   You knew that this was a provision in the
18   contract that was important to the Grosses because they
19   added it, correct?
20      A     It was a provision that the Grosses wanted in
21   the contract.    Yes, it is.   Did we agree to it?   No, we
22   never got to where we agreed to it because we never
23   signed a document that outlines what the guarantee is
24   all about.
25                   MR. ALDOUS: Objection, nonresponsive
                                                               127



1    portion after "yes."
2                  THE COURT: Sustained.     It is now 2:30.
3    We'll take a ten-minute recess.     During this recess, the
4    jury is under the same instructionsyou've been
5    previously given.   You're not to discuss this case among
6    yourselves or with anyone else until such time as the
7    case has either been submitted to you for your
8    deliberations or you have been discharged as jurors.
9                  All rise.    Jury is excused.
10                 (Jury exits the courtroom)
11                 THE COURT: You may step down, Mr. Hickok.
12                 We stand in recess.
13                 (Recess taken)
14                 MR. SHAW: Your Honor, we had a discussion
15   a moment ago in the Court's chambers, and the
                                                re was some
16   discussion about whether or not a conflict has arisen
17   with me as a witness.     And it sounds like now that
18   conflict has arisen.    I -- the Court inquired about
19   waiver.   I cannot and VSDH will not waive that conflict.
20   So given that, I think I need to move for a mistrial and
21   VSDH will need to hire other counsel.
22                 THE COURT: Mr. Aldous?
23                 MR. ALDOUS: Your Honor, the defense has
24   waived any of this argument by, number one, originally
25   getting a continuance in this court based upon the
                                                            128



1    potential for a conflict, then taking no action after
2    the Court gave them a continuance, then having me ask
3    them repeatedly, "Are you going to withdraw? " and then
4    not withdraw, then have me file a motion to disqualify
5    Mr. Shaw on the basis of his representations to the
6    Court, and have them then file a mandamus to have it set
7    aside, have the mandamus granted and set aside, and then
8    come back in and sit here since the time that the Court
9    had granted -- that is the appellate court granted the
10   mandamus and done nothing. Whatever it is, it's been
11   waived.
12                 Mr. Shaw's not produced an agreement, the
13   VSDH agreement that calls for however many votes or
14   whatever.   And there's no evidence before you as to
15   whether or not it could have been waived or not.
16   But the only thing we do know is this has now come up
17   about four or five times and always been used to avoid
18   resolution to this case, and it should be just summarily
19   denied by the Court.
20                 MR. CHAIKEN: May I just make one comment?
21                 THE COURT: One.
22                 MR. CHAIKEN: Mr. Aldous referred to the
23   defense, okay, has done this, that, and the other thing.
24   I have not made any motion.   The only issue that is
25   before -- that pertains to Mr. Hickok, who is my client,
                                                             129



1    is the -- as the Court indicated, there may be a
2    conflict emerging.   And it may be to a point where there
3    needs to be a waiver of the conflict. That's what we
4    discussed in chambers.   And I would represent to the
5    Court that Mr. Hickok -- as you would expect me to have
6    done, I conferred with him, and there's no waiver of any
7    such conflict.   There never has been.    And I've always
8    indicated I intended to call Mr. Shaw as a witness.     I
9    think the only fact differenceis that today Mr. Aldous,
10   who had previouslysaid he probably would not call him,
11   also indicated that he intends to possibly call him as
12   well.
13                 THE COURT: All right.      This is what the
14   Court's going to do.   It is now 3:17 p.m.    I will recess
15   for the afternoon.   The parties will be allowed to brief
16   the issue.   I will hear it first thing in the morning.
17                 MR. SHAW: Thank you, Your Honor.
18                 THE COURT: All rise.    Bring in the jury.
19                 (Jury enters the courtroom)
20                 THE COURT: You may be seated.
21                 Ladies and gentlemen of the jury
                                                 , I'm
22   sorry that we kept you back in recess longer than
23   anticipated, but some issues have come up that require
24   my making some rulings before any further evidence may
25   be presented to you. As a result of that, we're going
                                                             130



1    to recess today.    You will return tomorrow morning at
2    9:30 outside in the hallway.   Someone from the court
3    will let you back into the jury room at that time.
4                 During the overnight recess, you will be
5    under the same instructions that you have been
6    previously given.   You're not to discuss this case among
7    yourselves or with anyone else until such time as the
8    case has either been submitted to you for your
9    deliberations oryou have been discharged as jurors.
10                All rise.    The jury is excused for the
11   day.
12                You may step down, Mr. Hickok.
13                (Jury exits the courtroom)
14                THE COURT: You may be seated.
15                All right.    Mr. Chaiken?
16                MR. CHAIKEN: Your Honor, I just want to
17   make clear what Mr. Hickok's position is on this matter
18   that has arisen this afternoon by explaining to the
19   Court that it has always been and remains our position
20   that Mr. Shaw is a witness that we intended to call.
21   I've made that clear from day one.   I've never, never
22   retreated from that position. I've also made clear from
23   day one that to the extent that there are any conflicts
24   of interest arising from that situation, Mr. Hickok was
25   not waiving any conflicts.   He's not --
                                                              131



1                  THE COURT: That part has not been made
2    clear.
3                  MR. CHAIKEN: There has been prior
4    discussion, I believe, in connection with the
5    disqualificationwhere I made clear to the Court that he
6    was not waiving any conflicts that might exist.    When
7    the Court brought the issue up in chambers a few minutes
8    ago, I again conferred with my client. Mr. Hickok does
9    not waive any conflicts.
10                 Now, having said that, I object to the
11   continuance that's been requested.   We're here.   We are
12   ready to continue forward.   Mr. Hickok is prepared to go
13   forward and try the case.    But what happens is a matter
14   between the Court and Mr. Shaw, both in his capacity as
15   a witness, as a partner in the partnership, and as
16   counsel of record.   And so I just want the Court to
17   understand I'm not joining in the motion and I'm
18   prepared to move forward.    But we're not waiving any
19   conflicts that arise in connection with the matter.
20                 So I just want the Court to be aware of
21   what Mr. Hickok's position is because Mr. Aldous tried
22   to lump the defendants together in this matter, and
23   we're not lumped together with respect to where we're
24   at.   Thank you.
25                 THE COURT: Do you have anything in
                                                                132



1    response, Mr. Aldous?
2                  MR. ALDOUS: Your Honor, I would just say
3    that I'll be able to produce to you about ten cases that
4    say that if you don't move to enforce a -- an issue like
5    this that you waive it.    And this has been black letter
6    law for a long time.    And although Mr. Chaiken says that
7    they've held onto and they don't waive anything, the law
8    says differently.   And the law's going to be the same
9    with respect to VSDH, who represents -- who is
10   represented by Mr. Shaw.   So I'll be happy to produce
11   those cases to you, and I'm confident I will.
12                 THE COURT: We'll see you tomorrow
13   morning.   Let's see.   What time?    9:30.
14                 MR. SHAW: All right.      Thank you, Your
15   Honor.
16                 THE COURT: Okay.       We stand in recess.
17                 (Proceedings concluded for the day)
18
19
20
21
22
23
24
25
                                                        133



1    STATE OF TEXAS         )
2    COUNTY OF DALLAS       )
3            I, Cathye Moreno, Official Court Reporter in
4    and for the County Court of Dallas County, Texas, County
5    Court At Law Number One, State of Texas, do hereby
6    certify that to the best of my ability the above and
7    foregoing contains a true and correct transcription of
8    all portions of evidence and proceedings requested in
9    writing to be included in the Reporter's Record, in the
10   above-styled and -numbered cause, all of which occurred
11   in open court or in chambers and were reported by me.
12           I further certify that this Reporter's Record
13   of the proceedings truly and correctly reflects the
14   exhibits, if any, admitted by the respective parties.
15           WITNESS MY OFFICIAL HAND this the 10th day of
16   October, 2015.
17                      /s/ Cathye G. Moreno
18                      Cathye G. Moreno, Texas CSR #6076
                        Expiration Date: 12/31/16
19                      Official Court Reporter
                        County Court at Law No. 1
20                      600 Commerce Street, Suite 550
                        Dallas, Texas 75202
21                       cathyemoreno@sbcglobal.
                                              net
                        (214)653-7496
22
23
24
25
     134



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2
3
4
5
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7
8
9
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TAB 26
                                                              1



1                         REPORTER'S RECORD
                       VOLUME 4 OF 10 VOLUMES
2                      CAUSE NO. CC-09-05232-A

3    VSDH VAQUERO VENTURE, LTD.       )IN THE COUNTY COURT
                                      )
4      Plaintiff/Counter-Defendant, )
                                      )
5    V.                               )
                                      )
6    KEN GROSS and BETSY GROSS        )AT LAW NO. 1
                                      )
7      Defendants/Counter-Plaintiffs, )
                                      )
8    V.                               )
                                      )
9    EVAN L. SHAW and DOUGLAS M.      )
     HICKOK                           )
10                                    )
       Intervenors/Counter-Defendants,)DALLAS COUNTY, TEXAS
11
12
13   -------------------------------------------------------

14                       TRIAL ON THE MERITS
15   -------------------------------------------------------
16
17              On the 16th day of June 2015, the following

18   proceedings came on to be heard within the presence of

19   a jury in the above-entitled and -numbered cause before
20   the Honorable D'METRIA BENSON
                                 , judge presiding, held in
21   Dallas, Dallas County, Texas.
22              Proceedings reported by computerized stenotype
23   machine.    Reporter's Record produced by computer-aided
24   transcription.
25
                                                  2



1                        APPEARANCES:
2    MR. STEVEN E. ALDOUS
     SBN 00982100
3    Forshey Prostok, LLP
     500 Crescent Court
4    Suite 240
     Dallas, Texas 75201
5    (214)716-2100
     ATTORNEY FOR DEFENDANTS/COUNTER-PLAINTIFFS
6    KEN GROSS and BETSY GROSS
7       - AND -

8    MR. KENNETH B. CHAIKEN
     SBN 04057800
9    Chaiken & Chaiken, PC
     Legacy Town Center III
10   5801 Tennyson Parkway
     Suite 440
11   Plano, TX 75024
     (214)265-0250
12   ATTORNEY FOR INTERVENOR/COUNTER-DEFENDANT
     DOUGLAS M. HICKOK
13
        - AND -
14
     MR. EVAN LANE (VAN) SHAW
15   SBN 18140500
     Law Offices of Van Shaw
16   2723 Fairmount Street
     Dallas, Texas 75201
17   (214) 754-7110
     ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT
18   VSDH VAQUERO VENTURE, LTD;
     INTERVENOR, VAN SHAW; and
19   THIRD-PARTY DEFENDANTS
     VSDH VAQUERO HOMES, INC. AND
20   VSDH HOMES, INC.
21
22
23
24
25
                                                                  3



1                             INDEX

2    JUNE 16, 2015                               PAGE       VOL.
3    PROCEEDINGS..............................        4       4
4    MR. SHAW'S MOTION FOR MISTRIAL...........        4       4
5    GARCIA HEARING BY MR. SHAW...............        6       4
6    COURT'S RULING...........................    18          4
7
     GROSSES'
8    WITNESSES           Direct     Cross    Voir Dire      Vol.
     Douglas Hickok     23, 100    35,67         --           4
9                         121      115,117
     Ken Gross            123     172,194        --           4
10
11   END OF PROCEEDINGS.......................        210     4

12   REPORTER'S CERTIFICATE...................        211     4

13
14                       EXHIBIT INDEX

15   DEFENDANTS'
     NO.     DESCRIPTION          OFFERED    ADMITTED       VOL.
16   115     Luxury Home Magazine    209        210           4
            Featuring Pictures of
17           the Property

18   116    Photograph of the         209        210          4
            Property
19
     125    House Plans for           130        130          4
20          Improvements

21
22
23
24
25
                                                                 4



1                           PROCEEDINGS
2                           June 16, 2015
3                   (Off-the-record discussion held)
4                   THE COURT: All right.    You wanted to say
5    something, Mr. Shaw.
6                   MR. SHAW: Thank you, Your Honor
                                                  .
7                   Comes now VSDH and filesthis -- and Van
8    Shaw as counsel files thismotion to withdraw and for a
9    mistrial on the following facts:   One, yesterday
10   approximately 2:50 p.m. in chambers, Mr. Aldous followed
11   by Mr. Chaiken advised the Court that they were planning
12   to call me individually as a witness.    That was on the
13   heels of Mr. Hickok testifying regarding VSDH and
14   particularly about the solvency or insolvency of the
15   same and then on the matters of dealing with the Grosses
16   on the buyback issue and lateraling all of that
17   communication and correspondenceto Van Shaw to handle
18   for the -- for VSDH.
19                  I then became concerned over DR 3.08.    The
20   Court asked the parties, particularly Mr. Chaiken and
21   VSDH, if they would waive any objection to Van --
22                  THE COURT: The Court did not ask if you
23   would waive.   The Court indicated that it might be a
24   circumstance where waiver would be appropriate --
25                  MR. SHAW: I stand corrected.
                                                                 5



1                    THE COURT: -- or that a conflict had
2    arisen.
3                    MR. SHAW: I stand corrected. And
4    Mr. Chaiken advised that Mr. Chaiken would not waive any
5    conflict.   The Court recessed so the parties could look
6    into that issue.    And I believe that the testimony that
7    now -- Mr. Aldous today has advised the Court Mr. Aldous
8    will not call me as a witness. Mr. Chaiken has continued
9    to advise the Court today that Mr. Chaiken will call me
10   as a witness.    I previously had filed a motion for
11   continuance based on 3.08.    After reviewing the motion
12   and after dealing with Mr. Aldous and the Grosses, I did
13   not think my withdrawal was required at that time.
14                   Mr. Aldous moved the Court for my
15   withdrawal.   The Court granted it, and the Court of
16   Appeals subsequently ruled that the record was
17   insufficient to require my withdrawal at that time.     I
18   did not believe my withdrawal was required until
19   yesterday on the heels of Mr. Hickok's testimony.      And I
20   want to call Mr. Chaiken as a witness to testify as to
21   the facts that I will be called on.    May I do that?
22                   THE COURT: Are you asking for a Garcia
23   hearing?
24                   MR. SHAW: Yes, Your Honor.
25                   THE COURT: You may do so.
                                                                 6



1                    MR. SHAW: I'm sorry?
2                    THE COURT: I said then you may do so.
3                    MR. SHAW: Okay.   Thank you.
4                    Mr. Chaiken, will you please --
5                    THE COURT: Mr. Chaiken, raise your right
6    hand.
7                    (Witness sworn)
8                    MR. SHAW: Mr. Chaiken, would youplease
9    state your name?
10                   MR. CHAIKEN: Kenneth Chaiken.
11                   MR. SHAW: You're a lawyer for Doug Hickok
12   in this case?
13                   MR. CHAIKEN: I represent Mr. Hickok in
14   his personal capacityin this case.
15                   MR. SHAW: You have expressed an intention
16   to call me as a witness in this case.    Is that accurate?
17                   MR. CHAIKEN: I have previously and once
18   again expressed my intent to call you as a witness in
19   this case.    The circumstances as to why I'm calling you
20   now are different than why I was going to call you
21   previously and my expectation as to why I would call you
22   previously.
23                   MR. SHAW: Did the Court of Appeals get it
24   wrong when they said that you had expressed an interest
25   to call me as a rebuttal witness
                                    -- possibly as a
                                                               7



1    rebuttal witness only?
2                   MR. CHAIKEN: I'm not commenting as to
3    whether the Court of Appeals got something right or
4    wrong.    I previously had expressed an intention to call
5    you as a rebuttal witness with regard to specific
6    issues.
7                   MR. SHAW: All right.    And thenbased on
8    the current state of affairs and Mr. Hickok's testimony
9    of yesterday, will you please state the inquiry that you
10   will make of me in general?
11                  MR. CHAIKEN: Are you asking me to
12   describe the nature of the testimony that I am
13   anticipating eliciting?
14                  MR. SHAW: I am.
15                  MR. CHAIKEN: Well, yesterday, in response
16   to questions that were asked of him by Mr. Aldous,
17   Mr. Hickok was referred to an email that you had written
18   in which you had stated that VSDH Vaquero, Ltd., the
19   entity, was insolvent at a time when you were solely and
20   exclusively handling, for lack of a better word,
21   responses to inquiries that were made by the Grosses
22   regarding whether VSDH, the obligor under a buyback
23   obligation, was going to perform the buyback that they
24   had requested VSDH to perform.
25                  Mr. Hickok was asked whether he agreed
                                                                8



1    with you in that statement that you had made whether
2    VSDH was insolvent at the time that you wrote that memo,
3    which created an adversarial response between you on
4    that issue, at least as stated in your email, and
5    Mr. Hickok's version as to his knowledge of what the
6    partnership's solvency was at that time.
7                  And because the issue relates to whether
8    the Grosses were justified or permitted to sell the
9    property before the buyback date and they, I expect, are
10   going to argue that they were entitled to rely upon your
11   statement concerning solvency as to ability to perform
12   the buyback, meaning the partnership, I need to have you
13   testify about the facts and circumstances that existed
14   at the time, including any additional communications
15   that you may have had on behalf of the partnership on
16   the buyback issue.
17                 And there will be a probability at the
18   very least that your testimony, while you are serving as
19   an advocate for the partnership, will be contrary to
20   testimony given by the other partner.   And you will be
21   called upon to continue acting as an attorney pending a
22   judicatory proceeding, having given testimony that is
23   adverse to your client because it conflicts with the
24   other member of your client and the testimony that he
25   has given.   And the purpose of the testimony relates to
                                                                 9



1    the ultimate issue of, as I think you've described it,
2    first breach.
3                    MR. SHAW: Do you believe there's a
4    genuine need for my testimony?
5                    MR. CHAIKEN: You are swarmingall over
6    this issue, okay.    Your conduct, okay, as the sole and
7    exclusive actor on behalf of the partnership, has been
8    called into question.    Mr. Aldous has called a witness
9    to contradict you, okay, and or who has contradicted you
10   on a statement that you made that forms the basis of his
11   client's alleged reliance and actions.
12                   It is absolutely material for the jury to
13   hear what happened, what youmeant, why it happened the
14   way it did, and the totality of the circumstances.
15   Otherwise, it remains completely unaddressed by the
16   witness who -- which is you, who has the sole knowledge
17   of those relevant facts.
18                   MR. SHAW: Do you believe that will be
19   material to the -- VSDH and its case and defense?
20                   MR. CHAIKEN: I believe it will be
21   material because VSDH has a defense, okay, that has been
22   asserted that involves whether or not it had an
23   obligation to buy back the property under this buyback
24   option.   And that defense is crucial to avoid any claim
25   for breach of the buyback obligation.
                                                              10



1                  Now that -- that benefits Mr. Hickok as
2    well, okay.   And so it's not only essential on behalf of
3    VSDH, but it's also essential on behalf of my client
4    with regard to his defense as well because those defense
5    -- that particular defense is a common defense, a shared
6    defense.   But it's essential to establishing the defense
7    of the partnership as well as any guarantor, the
8    partnership obligation.
9                  MR. SHAW: Do you believe it would be
10   prejudicial to the interest of VSDH?
11                 MR. CHAIKEN: Well, if you're called upon
12   to testify on an essential fact related to that defense
13   and your testimony is contrary to the testimony given by
14   the partnership already, okay, by Mr. Hickok -- the
15   question wasn't whether he was insolvent.   It was
16   whether the partnership was insolvent.   Then the lawyer
17   representing the partnership in this case is going to be
18   called upon to continue advocating the defense having
19   given testimony that is adverse, okay, to the
20   partnership because it contradicts the other witness.
21                 And if another lawyer was standing here
22   handling that issue, then you wouldn't have the problem
23   that is encompassed from my understanding of Rule 308.
24   But, again, I didn't intend to call you on these issues
25   until Mr. Hickok took the stand and Mr. Hickok was asked
                                                             11



1    to comment on whether he agreed with what you had stated
2    in an email.
3                   MR. SHAW: Did you anticipate that was
4    coming?
5                   MR. CHAIKEN: Well, I heard Mr. Aldous say
6    that he didn't think that was a material issue. But,
7    nevertheless, it was testimony that he elicited
8    yesterday for a specific person.
9                   THE COURT: Nonresponsive.   Yes or no,
10   Mr. Chaiken?
11                  MR. CHAIKEN: I had not anticipated
12   calling you on that issue prior to yesterday when the
13   need arose to have you explain the email, et cetera.
14                  THE COURT: Yes or no?
15                  MR. CHAIKEN: I had not anticipated him
16   prior to yesterday.   No.
17                  MR. SHAW: Pass the witness.
18                  THE COURT: Mr. Aldous?
19                  MR. ALDOUS: Mr. Chaiken, you said that
20   there was a probability that Mr. Shaw will give
21   testimony that will conflict with Mr. Hickok.   Is there
22   anything you're speaking of other than the solvency
23   issue that was in the email that was discussed with
24   Mr. Hickok?
25                  MR. CHAIKEN: There is a possibilityof
                                                             12



1    some other issues.
2                  MR. ALDOUS: Exactly what do you say that
3    is going to be elicited from Mr. Shaw that is in
4    conflict with Mr. Hickok?
5                  MR. CHAIKEN: I have another issue of
6    concern.   But until the testimony has been elicited from
7    Mr. Hickok, I can't say whether or not that need arises.
8                  MR. ALDOUS: So, as of right now, the only
9    issue that you say that there's a conflict of evidence
10   is relating to the issue that Mr. Shaw said that VSDH
11   was insolvent and Mr. Hickok testified that it was not
12   insolvent?   Yes or no?
13                 MR. CHAIKEN: I can't answer your question
14   as a yes or no based upon the way you phrased it.
15                 MR. ALDOUS: What about my question is
16   somehow confusing?
17                 MR. CHAIKEN: Well, you asked me about an
18   issue, and then you talked about insolvency.    The issue
19   is the defense and how that testimony on insolvency
20   relates to the defense.
21                 MR. ALDOUS: No.   Let me ask the question
22   again because I probably didn't ask it right.
23                 MR. CHAIKEN: Okay.
24                 MR. ALDOUS: What fact do you expect to
25   elicit from Mr. Shaw that is in conflict with what
                                                             13



1    Mr. Hickok said other than the issue of the solvency of
2    VSDH on or about May 18, 2009?
3                 MR. CHAIKEN: Well, if Mr. Hickok states
4    what he stated in his email -- I'm sorry.   Mr. Shaw
5    states what he stated in his email, then I expect that
6    he is going to testify directly in conflict with what
7    his client representative, Mr. Hickok, at least
8    representative for purposes of that testimony, testified
9    on the question of insolvency.    And I expect that there
10   may be -- there may be some other adverse points that
11   are raised through Mr. Shaw's testimony concerning what
12   he had communicated to the Grosses, but I don't know
13   specifically what those are until I ask him the
14   questions.
15                MR. ALDOUS: So, to summarize, the only
16   issue of which you're aware right now in which
17   Mr. Shaw's testimony might be adverse to Mr. Hickok's
18   testimony is the issue relating to the solvency of VSDH
19   as it's reflected in the email?
20                MR. CHAIKEN:   No, that's not correct.
21                MR. ALDOUS: Oh, my God.     Objection,
22   nonresponsive.
23                THE COURT: Sustained.
24                MR. ALDOUS: Can you answer the freaking
25   question or not?   Excuse me.
                                                              14



1                 THE COURT: That is inappropriate
                                                 , Mr. --
2                 MR. CHAIKEN: You know, I resent that
3    because your question was "correct or not
                                            ."
4                 THE COURT: Mr. Chaiken, I don't care if
5    you resent it. Just answer the question.
6                 MR. CHAIKEN: It's not correct.    Your
7    question was: Was it correct?
8                 MR. ALDOUS: I just want to know --so can
9    you tell the Court -- can you articulate right now what
10   issue you're going to elicit from Mr. Shaw that is going
11   to conflict with Mr. Hickok's testimony, other than the
12   issue relating to the solvency of VSDH?   If you can't
13   articulate, say you can't.
14                MR. CHAIKEN: At this time, that's the
15   specific fact that I can point to that would be adverse
16   to the interest of the partnership.
17                MR. ALDOUS: And would you agree with me
18   that the email that is currently in evidence that
19   reflects that Mr. Shaw said that VSDH is insolvent in an
20   email to the Grosses has been in this case since prior
21   to 2013?
22                MR. CHAIKEN: Well, first of all, the
23   email doesn't say that VSDH is insolvent.   It says that
24   VSDH is not solvent, which may have a different meaning
25   than insolvency.   Second of all, it has been in the
                                                             15



1    case; but my need to call Mr. Shaw to testify about what
2    he meant didn't arise, okay, until Mr. Hickok responded
3    to your question about insolvency yesterday.
4                  MR. ALDOUS: So when Mr. Shaw explained
5    what he meant in his email, how is that harmful to
6    either Mr. Hickok or VSDH?
7                  MR. CHAIKEN: If he testifies that the
8    entity was insolvent, okay, on the date that he wrote
9    that email, then he is testifying adversely to the --
10   and giving testimony that is adverse to the partnership
11   because the other partner has already testified that it
12   is not and was not insolvent at that time.   So you have
13   a conflict between the two partners, one of whom is
14   continuing to serve as the advocate for the partnership
15   which would be prejudicial to have the advocate
16   testifying adversely to the interest of the partnership
17   on a material defense.
18                 MR. ALDOUS: Is it also possible that
19   Mr. Shaw will give testimony which isentirely
20   consistent with Mr. Hickok's statement that insolvency
21   could mean cash poor as opposed to traditional
22   insolvency?
23                 MR. CHAIKEN: It is possible that
24   Mr. Hickok -- I'm sorry -- Mr. Shaw will testify that
25   what he said in the email isn't what he meant and that
                                                             16



1    the jury will perceive him to be other than truthful
2    with respect to --
3                 THE COURT: That's not the question.
4                 MR. CHAIKEN: It's possible he could say a
5    great many things.   I don't know what he's going to say.
6                 MR. ALDOUS: And is it also true that as
7    you stand here right now there is no other fact that you
8    believe is crucial to establish with Mr. Shaw, other
9    than to explain his testimony concerning his email?
10                MR. CHAIKEN: Well, I think there are many
11   other facts that are crucial to establish with Mr. Shaw,
12   but none that I can think of at the moment that would be
13   adverse to the partnership or its defense.
14                MR. ALDOUS: Pass the witness.
15                MR. SHAW: The DR speaks in terms of
16   belief that the lawyer is or may be a witness necessary
17   to establish an essential fact.   You testified that,
18   depending on some testimony from Mr. Hickok, there may
19   be another area of inquiry where you would think I would
20   be in violation of the DR.   Is that accurate?
21                MR. CHAIKEN: I can conceive of --
22                THE COURT: Yes or no?
23                MR. CHAIKEN: Well, the answer that I gave
24   earlier was that there may be, but I can't articulate it
25   right now.
                                                              17



1                 MR. SHAW: Okay.    I pass the witness.
2                 MR. ALDOUS: Nothing further.
3                 THE COURT: All right.    The Court has in
4    front of it a copy of Mr. Shaw's motion for continuance
5    filed on December 6, 2013, where Mr. Shaw specifically
6    states that he will be prohibited from serving as trial
7    counsel if he is called as a fact witness, and cites to
8    Rule 3.08 of the DisciplinaryRules of Professional
9    Conduct. A continuance was granted with respect to
10   that.
11                After the testimony that arose yesterday,
12   Mr. Chaiken, you stated on the record, "Your Honor, I
13   just want to make it clear that Mr. Hickok's position on
14   this matter that has arisen this afternoon, I was
15   complaining to the Court that it has always been and
16   remains our position that Mr. Shaw is a witness, and we
17   intend to call him.   And I made that clear from day one.
18   I have never, ever retreated from that position.    I also
19   made clear from day one that to the extent that there
20   are any conflicts of interest that arise from that
21   situation, Mr. Hickok was not waiving any.   He is not."
22                So your testimony today is that you said
23   you were only going to call Mr. Shaw for rebuttal, but
24   yesterday on the record what you said was that you have
25   maintained from the beginning that you were always going
                                                              18



1    to call Mr. Shaw.
2                   MR. CHAIKEN: For rebuttal is what I
3    intended.
4                   THE COURT: You didn't say rebuttal
5    yesterday.
6                   MR. CHAIKEN: I wasn't asked that issue,
7    that question.
8                   THE COURT: No, that was voluntary. You
9    made a voluntary statement.
10                  Trial will proceed.
11                  MR. SHAW: Thank you, Your Honor.
12                  THE COURT: Also, yesterday we discussed
13   time limits.   The Court has decided that each party will
14   have ten hours, except the defendants will be splitting
15   their ten hours, five hours each if you so choose,
16   however you wantto spend your ten hours since you are
17   aligned, with the exception of that one area.
18                  Yesterday we spent -- let's see, I have to
19   figure how much of the time was spent on direct versus
20   cross-examination
                     .
21                  MR. SHAW: He hasn't been crossed yet
                                                       .
22                  MR. CHAIKEN: There's been no
23   cross-examinationyet.
24                  THE COURT: There were some objections and
25   some -- let's see.   What else did we have?   We'll skip
                                                                19



1    the objections.   I don't think they were that
2    significant.   It appears that we started yesterday in
3    direct examination
                      .    It looks like we started before
4    lunch. Okay.    We started with Mr. Hickok at 11:23.      We
5    stopped for lunch at 12:15, if I'm not mistaken.    Yes.
6    We started after lunch at 1:22.    We took a recess at
7    2:30, actually 2:31. And then after that, we did not
8    resume any questioning.   There was discussion on the
9    record about Mr. Shaw's motion.
10                  MR. ALDOUS: Your Honor, I show that is
11   two hours and one minute.
12                  THE COURT: All right.    That leaves you
13   seven hours and 59 minutes.
14                  MR. ALDOUS: Thank you, Your Honor.
15                  MR. CHAIKEN: Your Honor, may I ask for
16   clarification on that?    The time limits are for what
17   specifically per side; case in chief?
18                  THE COURT: Yes.    But if you take up an
19   excessive amount of time on someone's cross-examination
                                                           ,
20   that will count against you.
21                  MR. CHAIKEN: Will the Court let us know
22   if that time's being charged against us as we go?
23                  THE COURT: Yes.
24                  MR. SHAW: So just to get this straight,
25   the cross-exam time doesn't count against the party
                                                             20



1    itself, that's asking the cross-exam questions; is that
2    accurate?
3                 MR. CHAIKEN: Unless it's excessive is my
4    understanding.
5                 THE COURT: All right.    We'll get the jury
6    and get started.   We stand in recess.
7                 (Recess taken)
8                 THE COURT: Mr. Chaiken, Mr. Shaw, have
9    you determined how you will split your hours?
10                MR. SHAW: No, Your Honor.    May we discuss
11   it over lunch and then report?
12                THE COURT: You may.
13                MR. CHAIKEN: Your Honor, may I ask a
14   question?
15                THE COURT: You may.
16                MR. CHAIKEN: Ultimately, does it matter
17   how we're going to do it if it's just between the two of
18   us to split it?
19                THE COURT: Yes.
20                MR. CHAIKEN: Okay.    I was only asking
21   because we need to declare before we -- we need to
22   declare before we get up to our case in chief?
23                THE COURT: Yes.     How else will I keep
24   time?
25                MR. CHAIKEN: Because it's a total amount
                                                              21



1    of time in the defendants' case in chief, so the
2    defendants' case in chief is -- the Court has indicated
3    is a combined case in chief, so it's just running time.
4                 THE COURT: You've had separate time for
5    opening and you asked for separate time for close, so
6    there will be separatetime for your examination.
7                 MR. CHAIKEN: Are we on the record?
8                 THE REPORTER:   I am.      Am I not supposed to
9    be?
10                MR. CHAIKEN: I would just like to
11   interpose an objection to that time constraint. I don't
12   believe it's an authorized time constraint under the
13   Texas Rules of Civil Procedure.   Having said that, I'll
14   honor the Court's request.
15                THE COURT: So noted.
16                MR. CHAIKEN: And I would just observe
17   also for the record that on the issue of opening and
18   voir dire, the Court gave the defendants a combined
19   amount of time to use however they saw fit without a
20   declaration in advance of who was going to use how much
21   time. That was the block time.
22                THE COURT: I did specifically ask the
23   parties how they were going to do it.    And, in fact,
24   during voir dire, you had separate time from Mr. Shaw.
25                MR. CHAIKEN: Your Honor, Mr. Hagood --
                                                              22



1    Mr. Hagood took some of the blocked time that had been
2    allocated to the defense on a combined basis, and then I
3    just took the rest of the time.   I'm sure that it was
4    all recorded on how much time total was spent. But
5    there had not been an advance declaration that
6    Mr. Hagood would take X amount of time or that we would
7    take Y amount of time.
8                 THE COURT: I believe we had discussed
9    that in advance, but I think the issue is --
10                MR. CHAIKEN: And I'm not trying to
11   quarrel with the Court.   I just want to make a record
12   that we're --
13                THE COURT: And you've done it.
14                MR. CHAIKEN: -- that we're on the second
15   day of trial, and we're getting a time limitation
16   imposed that hadnot been previously imposed.     And now
17   the Court has asked for the defense to predict what the
18   split of a blockamount of the defense case in chief is,
19   and I just -- I object to the request, but I'll answer
20   it for the Court
                    .
21                THE COURT: All right.    Dan, you may
22   bring in the jury.
23                All rise.
24                (Jury enters the courtroom)
25                THE COURT: You may be seated.
                                                              23



1                 You may continue, Mr. Aldous.
2                 MR. ALDOUS: Thank you, Your Honor.
3                         DOUGLAS HICKOK,
4    having been first duly sworn, testified as follows:
5                  CONTINUED DIRECT EXAMINATION
6    BY MR. ALDOUS:
7       Q    Mr. Hickok, we were -- when we left off
8    yesterday, we were discussing the guarantee language
9    that's in the contract.   I don't want to rehash that,
10   but I do want to ask you some questions.   Now, you
11   indicated that you're an experienced real estate
12   investor; is that accurate?
13      A    Yes, sir.
14      Q    So you know the Secretary of State has records
15   that reflect every time somebody opens a company or
16   establishes a company.    You're aware of that?
17      A    I would say, yes, as a corporation, I think, or
18   a limited partnership.    But not as a -- maybe as an
19   assumed name also.   But I'm not positive on all of that.
20   I'm not a lawyer.
21      Q    So, would it surprise you at all to find that
22   you are a member or a -- in some capacity associated
23   with over 40 entities that do real estate investing?
24                MR. CHAIKEN: Your Honor, objection,
25   relevance.
                                                             24



1                 THE COURT: Relevance, Mr. Aldous?
2                 MR. ALDOUS: Your Honor, this is relevant
3    to whether or not he has a true belief as to whether the
4    guarantee is effective or not.
5                 THE COURT: I'll allow it.
6                 THE WITNESS: Yes, I would say that's
7    probably true.
8                 MR. ALDOUS: May I approach, Your Honor?
9                 THE COURT: You may.
10      Q     (By Mr. Aldous) When we were visiting
11   yesterday, we talked about the three reasons why you
12   indicated VSDH did not repurchase the home.   And one of
13   the ones that you said and the last one that's up there
14   is that the Grosses sold the home prior to September
15   1st, 2009, right?
16      A     Yes, sir.
17      Q     So if you look at Exhibit No. 3, which is in
18   the notebook there in front of you, it has the contract,
19   right?
20      A     Yes, sir.
21      Q     And the language that you're referring to is in
22   the addendum that's attached to the contract and
23   specifically the portion that is labeled B, correct?
24      A     Correct.
25      Q     The section says that if the buyer -- and
                                                             25



1    that's the Grosses, right?
2       A    Yes, sir.
3       Q    -- timely and properly exercises the buyback
4    option, which you and I agreed yesterday that they --
5    they timely did it, whether or not you agree that they
6    were entitled to it is a different issue. But they
7    timely did it?
8       A    Yes, sir.
9       Q    The buyer may not sell or convey any right,
10   title, or interest into the property to any third party
11   unless seller breaches its obligation to repurchase the
12   property pursuant to the buyback option due to no fault
13   of the buyer.    Did I read that right?
14      A    You did.
15      Q    Now, would you agree with me that if the jury
16   determines that VSDH breached the obligation to buy back
17   the property, then the Grosses were free to sell it?
18      A    I mean, I'm not a lawyer, but it could read
19   that way, I guess.    It's more of a legal response
20   probably.
21      Q    Now in your experience, would you agree with me
22   that if someone says that they're not going to perform,
23   that's the same thing as saying we're breaching the
24   contract, if there's no excuse?
25                   MR. CHAIKEN: Objection, calls for a legal
                                                             26



1    conclusion.
2                  THE COURT: Overruled.
3       A    I don't think I'm equipped to answer that.
4       Q    (By Mr. Aldous) All right.    So would it be true
5    then you don't know if -- if you tell someone -- if a
6    contract says I'm supposed to pay you for your wages and
7    somebody -- and then you say I'm not going to pay your
8    wages, you don't know whether or not you have to wait
9    until the end of the pay period to see whether they pay
10   or if you can take their word for it?
11      A    Correct.
12      Q    All right.   When we spoke earlier or yesterday,
13   you agree with me that because of the various reasons
14   that you had given as of May 1st, 2009, VSDH was not
15   going to buy this property back, correct?
16      A    Restate the question again please.
17      Q    Yesterday when we were talking, I asked you, as
18   of May 1st, 2009, when the Grosses exercised the buyback
19   option, at that time you had already determined that
20   VSDH was not going to perform the buyback, correct?
21      A    I said that -- I believe I said that the
22   Grosses were in default of the contract.    I don't know
23   -- I'd have to -- I don't know if I said that they -- we
24   would not buy it back.
25      Q    Let me ask it a little differently.    Would you
                                                                  27



1    agree that because of your belief that the Grosses were
2    in violation of the contract, VSDH had no intention to
3    honor that buyback as of May 1st, 2009?
4          A      I mean, I totally disagree with that.     I think
5    we have the opportunity to look at buying it back if we
6    want to buy it back.       We could -- you know, VSDH could
7    do what they want to whether they were in default or
8    not.
9          Q      All right.   And so it's your position now that
10   it was at that point, that is May of 2009, it was VSDH's
11   option to either exercise -- to go ahead and buy back
12   the property or not?
13         A      VSDH could look at the situation and determine
14   if they wanted to buy it back.
15         Q      Now, we also looked at the emails particularly
16   at May of 2009, where you said that from now on Van Shaw
17   is handling this matter on behalf of VSDH.       Do you
18   recall that?
19         A      I recall looking at emails.   Yes, sir.
20                     MR. ALDOUS: May I approach, Your Honor?
21                     THE COURT: You may.
22                     MR. ALDOUS: I need to just make sure that
23   this is in evidence.
24         Q      (By Mr. Aldous) If you would, turn to Exhibit
25   38.       This has previously been admitted into evidence in
                                                               28



1    this case.    First of all, you see that this is from
2    Mr. Gross to both you and Van Shaw.   Do you see that?
3                   THE COURT: Excuse me, Mr. Aldous.   I
4    think you're going to need to move this so that the
5    jurors can see.
6                   MR. ALDOUS: Oh, yes, ma'am.
7       Q     (By Mr. Aldous) Do you see that?
8       A     Yes, sir.
9       Q     It says, "Van, per your offer yesterday to
10   allow us to enter into an agreement with a prospective
11   buyer, can you give us that agreement?   Recall that our
12   contract says that after May 1st, 2009, if we enter into
13   a contract to sell the home, the buyback option goes
14   away.   Please confirm that we can enter into a contract
15   and a sale while not altering the buyback language and
16   responsibility as it exists in our contract.   It is in
17   everyone's best interest to list and sell the property
18   now, thus mitigating damages."
19                  Do you recall receiving the email that is
20   Exhibit 38?
21      A     I do not. No.
22      Q     Do you recall whether or not you responded to
23   the email that is Exhibit 38?
24      A     I do not recall.
25      Q     Do you recall whether or not Mr. Shaw responded
                                                               29



1    to the email that is Exhibit 38?
2       A       I do not recall.
3       Q       So, as we sit here today, you have no
4    recollection of whether or not either you or Van said to
5    Mr. or Mrs. Gross, "Sure, go ahead and sell the property
6    if you feel like you need to"?
7       A       Not to my knowledge.    No.
8       Q       All right.     And would it also be true that you
9    have no recollection of saying, "No, don't sell the
10   property because we still might exercise the buyback
11   option"?
12      A       That -- rephrase that.
13      Q       I said can I also assume that you have no
14   recollection of sending an email saying to the Grosses,
15   "Do not sell the property because we could still
16   exercise the buyback"?
17      A       That's true.
18      Q       All right. If you would, turn to Exhibit 59.
19   And I'm sorry.    Before you do that, I just want to put
20   this back up here, Exhibit 38.      Do see the date on this,
21   June 28, 2009?
22      A       Yes, sir.
23      Q       Are you aware of whether or not the Grosses had
24   a meeting on that day with Mr. Shaw?
25      A       I'm not aware of that.    No.
                                                               30



1          Q   All right.   Let me go ahead and--
2                  MR. ALDOUS: May I approach, Your Honor?
3                  THE COURT: You may.
4          Q   (By Mr. Aldous) I want to go ahead and write
5    this date on here.     So we know that in May of 2009, the
6    Grosses exercised the buyback, right?
7          A   Yes, sir.
8          Q   And we know that as of Exhibit 38 on June 28,
9    2009, the Grosses said, "Will you agree to let us sell
10   the place," right?
11         A   Yes, sir.
12         Q   All right.   Now if you would, turn to Exhibit
13   59.
14                 MR. ALDOUS: And I'm sorry, Your Honor.
15   Can I take that down now?
16                 THE COURT: You may.
17         Q   (By Mr. Aldous) Exhibit 59 is an email, once
18   again, from Mr. Gross to you and Van Shaw, dated August
19   18, 2009.   Do you see that?
20         A   Yes, sir.
21         Q   It says, "Doug and Van, as you are aware per
22   our contract, our obligation on this home expires on
23   9-1-09.   Since you have stated you do not intend to
24   perform per the contract, we have listed the home.     We
25   had Roxann Taylor conduct anassessment of the market,
                                                             31



1    and she recommended a listing price of 2.5 million.
2    Since listing, we have had few showings; however,
3    someone today offered 2.415 million cash, but with a
4    very short closing, one week.
5                 Unless we hear otherwise by noon tomorrow
6    from either of you, we will be moving forward with this
7    deal, recognizing that there are still many issues that
8    may stop this transaction; such as any counteroffer, the
9    appraisal, short closing time, alternative living for
10   us, inspection, including the items that you never
11   repaired per our contract, and golf membership.   If
12   you'd like to discuss any of these issues, please call
13   me." -- He gives his phone number -- "otherwise, we will
14   assume you approve of this sale."
15                Now, do you see that, sir?
16      A    Sure I do.
17      Q    Did you respond at all to this email?
18      A    I don't believe I did.
19      Q    Do you know whether or not Mr. Shaw responded
20   to this email?
21      A    I do not know.
22      Q    At this point in time, is it your testimony,
23   sir, that VSDH was still willing to repurchase the home
24   pursuant to the buyback?
25      A    I'm saying we were looking at the opportunity
                                                               32



1    to repurchase it.   Sure.
2                  MR. ALDOUS: May I approach, Your Honor?
3                  THE COURT: You may.
4       Q      (By Mr. Aldous) Exhibit 59 is dated August 18,
5    2009.
6                  MR. ALDOUS: May I approach the witness,
7    Your Honor?
8                  THE COURT: You may.    Is this a copy for
9    the Court?
10                 MR. ALDOUS: Yes, Your Honor.
11                 THE COURT: You may approach.
12                 MR. CHAIKEN: Hang on just a moment,
13   please.   You said Exhibit 63?
14                 MR. ALDOUS: Yes.
15                 MR. CHAIKEN: Your Exhibit 63?
16                 MR. ALDOUS: Correct.   Do you need a copy?
17                 MR. CHAIKEN: No.   May we approach,
18   please?
19                 THE COURT: You may.
20                 (Sidebar conference held)
21                 THE COURT: You may proceed.
22                 MR. ALDOUS: Thank you, Your Honor.
23      Q      (By Mr. Aldous) Now, Mr. Hickok, I'm going to
24   hand you something that's been marked as Exhibit 63.
25   I'm not going to admit this document, but can you tell
                                                                 33



1    me if you recognize that document?
2       A       I think it's a legal --
3                    MR. CHAIKEN: Your Honor, I'll object to
4    the response only because to preserve the record.      He
5    was just asked whether he recognizes it, not to describe
6    what it is.    It's not being offered into evidence.    I
7    would object to any reference to what it is.
8                    THE COURT: No speaking objections.
9                    Just answer whether or not you recognize
10   the document.
11      A       I really don't recognize it.   I'm not familiar
12   with it.
13      Q       (By Mr. Aldous) Sir, are you aware that you
14   filed a case against the Grosses on July 7, 2009?
15      A       I mean, this has been a long proceeding.    Maybe
16   we did.    We did file originally a case, I believe, as a
17   plaintiff.
18      Q       That's right.   And do you see the file-stamp
19   date on here?
20      A       Yes, sir.
21      Q       And when you say, "We filed a case against the
22   Grosses," are you referring to VSDH and you, yourself,
23   and --
24      A       I'm speaking directly on behalf of VSDH.
25      Q       All right.   Were you aware that you had filed a
                                                                34



1    petition and intervention in this case?
2       A    Maybe I did.   I'm just not a legal person.    I
3    don't know what really a petition of intervention is.
4       Q    So you just got through telling the jury that
5    VSDH was willing to buy the property back on August 18,
6    2009, but you had sued -- VSDH had sued the Grosses on
7    July 7, 2009; isn't that right?
8       A    If you say so.
9       Q    Do you find anything inconsistent in your
10   testimony that y'all were willing to buy back the house
11   and the fact that you had sued the Grosses to avoid
12   buying back the house in July of 2009?
13                MR. CHAIKEN: Your Honor, argumentative
14   and mischaracterizesthe witness' prior testimony.
15                THE COURT: Overruled.
16      A    I'm not sure that we sued the Grossesfor the
17   reasons you're stating. I think we probably sued the
18   Grosses because they didn't do what they said they were
19   going to do under the terms of the contract.    That
20   doesn't mean we would not buy back the house.
21      Q    (By Mr. Aldous) So as I understand it, despite
22   the fact that --
23                MR. ALDOUS: May I approach, Your Honor?
24                THE COURT: You may.
25      Q    (By Mr. Aldous) On July 7, despite the fact
                                                              35



1    that VSDH sued the Grosses on July 7, 2009, it's your
2    testimony that you were still willing to perform on the
3    buyback?
4       A       My testimony is, sir, as part of VSDH had a
5    right under the contract until September 1 of 2009 to
6    buy back the house.
7                   MR. ALDOUS: I'll pass the witness, Your
8    Honor.
9                   THE COURT: Mr. Shaw.
10                  MR. SHAW: Thank you, Your Honor.
11                           CROSS-EXAMINATION
12   BY MR. SHAW:
13      Q       Doug, give us a little background on you,
14   please.    How old are you?
15      A       I'm 58 years old.
16      Q       What town do you live in?
17      A       Dallas, Texas.
18      Q       All right.    Are you married?
19      A       Yes, sir.
20      Q       How long have you been married?
21      A       Probably pushing a 30-year anniversary.
22      Q       And you have two children?
23      A       Two boys.
24      Q       Their ages?
25      A       Twenty-five and 23.
                                                                36



1          Q   All right.   Went to grade school in Dallas?
2          A   Yes, sir.
3          Q   Where did you go?
4          A   Well, grade school goes back to Withers
5    Elementary, when I met you
                             , all the way through W. T.
6    White High School, part of the DISD.
7          Q   All right.   You got out of W. T. White
                                                     in what
8    year?
9          A   1974.
10         Q   And then you went to college.   Where did you
11   go?
12         A   I spent one year at Texas Tech University and
13   then I transferred from there to the University of Texas
14   in Austin.
15         Q   Graduated from the University of Texas
16   approximately when?
17         A   Four years later in 1974.   Excuse me, 1978.
18         Q   In 1978?
19         A   Yes, sir.
20         Q   All right.   The -- and then you went to work,
21   right?
22         A   No, sir. I worked my way through college, and
23   so I worked when I was in college, as I did in high
24   school.   But I also went to work immediately the day
25   after I graduated.
                                                                37



1       Q     All right. Tell the jury a little bit about
2    your working career, please.
3       A     Oh, goodness.     I started incollege as a bank
4    teller, just, you know, learning how to -- you know, I
5    had to fend for myself, so I had to get a job as a bank
6    teller. If I could count, they hired me.     But so I did
7    that.   And then when I graduated college, I went to work
8    for a bank called Capital Bank here in Dallas at
9    Mockingbird and Central.    I believe I spent five years
10   there before Citibank in New York hired me away to
11   participate in their Dallas office here in Dallas.
12                  Around 1986 -- and don't hold me to these
13   exact dates.   It's been a while ago.   In 1986, I split
14   off from Citibank and wentto work for a real estate
15   firm here in Dallas by the name of HamptonPartners.
16   Hampton Partnerswas a small real estate firm that just
17   basically helped finance people -- looked for financing
18   to buy projects.
19                  On or about 1991, our family moved to
20   Austin just for quality of life to raise two boys --
21   well, one boy at the time.    Our second son was born in
22   Austin. I set up my own firm called the Marquis Group.
23   And at that point in time I just really started on an
24   endeavor.   It was -- I mean,I was going to have to go
25   work at McDonalds or try to make a real estate deal.
                                                                38



1    And I learned through my history of just being a banker
2    how to try to put transactions together, and I bought my
3    first apartment complex down in Austin adjacent to the
4    University of Texas.
5       Q      All   right.   Andsince that time, you've been
6    doing what?
7       A      Since that time, I've been a real estate
8    investor on my own, forming partnerships with various
9    people.
10      Q      You and I have been friends, we told the jury,
11   a long time, right?
12      A      Yes, sir.
13      Q      You worked at Wolf Nursery in college.    I
14   worked across the street at the carwash.
15      A      Well, that was high school, by the way; but,
16   yes.   That was a long time ago.
17      Q      And my boys are the same ages as yours?
18      A      Yes, sir.
19      Q      And we've been friends forever?
20      A      Yes, sir.
21      Q      I've been an investor with you many times?
22      A      Yes, sir.
23      Q      The -- presently -- so it came about on these
24   -- this house -- how did it come about that this house
25   came to get built between the -- by VSDH?
                                                              39



1       A    I think you and I came to -- met one day and
2    talked about building a couple of spec houses with a
3    mutual friend, Paul Kramer, in that subdivision.    And we
4    decided we'd go ahead and do it.   He built quality homes
5    and we'd get together and build a house together.
6       Q    And we built two next door to each other.
7    Wally Maya owns one now and then we're talking about the
8    one the Grosses were with; is that right?
9       A    Yes, sir.
10      Q    Okay.   The -- now let's talk a little bit,
11   please, about the exhibits.    I want to show you the
12   exhibit. Can you see the screen, the front?
13      A    Yes, sir.
14      Q    Okay.   Do you have a monitor there?   Does this
15   come up on your monitor too?
16      A    Yes, it does.
17      Q    Okay. So we looked at this before.     This is
18   the entity and this is the Grosses, right?
19      A    Yes, sir.
20      Q    And then this is a multi-page contract, right?
21                THE COURT: Mr. Shaw, just a second.
22                Yes, Mr. Aldous.
23                MR. ALDOUS: Could you -- I just didn't
24   know which exhibit.
25                MR. SHAW: Defendant's Exhibit 6.      I mean
                                                               40



1    -- well, Plaintiff's Exhibit 6.
2       Q    (By Mr. Shaw) Now that thing has a signature
3    page on it, and Mr. Aldous showed it to you earlier.    Is
4    that right?
5       A    Yes, sir.
6       Q    Now we see the signature page.   That's
7    Mr. Gross, that's Mrs. Gross, that's you.
8       A    That's me on behalf of the partnership.    Yes,
9    sir.
10      Q    Right. It's got a seller. It's got another
11   line if you were going to sign it individually.
12                 MR. ALDOUS: Objection, Your Honor,
13   leading and legally irrelevant.
14                 THE COURT: Sustained.
15      Q    (By Mr. Shaw) All right
                                   .   Did you sign down
16   here under seller?
17      A    No, sir.
18      Q    Individually?
19      A    No.
20      Q    Did you ever sign this document individually?
21      A    No form or fashion did I sign it as an
22   individual.
23      Q    Now, this document also has some reference to
24   some lawyers; is that right?
25      A    Yes, sir.
                                                              41



1       Q     And it had a lawyer for the Grosses, the
2    buyer's attorney; is that right?
3       A     Yes, sir.
4       Q     Mack Zimmerman.   And it's got the seller's
5    attorney.   That's VSDH.   And that's Hap Stern; is that
6    right?
7       A     Yes, sir.
8       Q     All right.   Now the document also had some
9    contact information; is that right?
10      A     There's notice provision.    Yes, sir.
11      Q     All right.   And this address here for seller,
12   5305 Village Creek, Plano, what's that?
13      A     That's my office address.
14      Q     All right.   Was that your office address then?
15      A     Yes, sir.
16      Q     And now?
17      A     Yes, sir.
18      Q     Continuously?
19      A     Yes, sir.
20      Q     It has your address and it has your email; is
21   that right?   I'm sorry. Your phone, your fax, and your
22   email; is that right?
23      A     Yes, sir.
24      Q     So all of that information is contained in the
25   original contract; is that fair?
                                                                42



1       A       Sure.   Yes, sir.
2       Q       Okay.   Then we talked about -- or at least I
3    think I've shown this page before to the jury.     It's
4    Page 7.    And it's got this Section 22, agreement of the
5    parties.    Do you see that?
6       A       Yes, sir.
7       Q       Is this significant to you?
8       A       Very significant because it lists the other
9    parts of the contract that are not the normal form,
10   which is that Addendum A and Addendum, I think, B.
11      Q       Okay. What about cannot be changed except by
12   written agreement?
13      A       Oh, absolutely, yes.
14      Q       Why is that significant?
15      A       Well, that makes the -- that constitutes the
16   contract. You've got to make sure everything is in
17   writing.
18      Q       Okay. The -- and why is that important?
19      A       Well, I think any time you have an agreement,
20   you want it to be in writing so there's not hearsay.
21      Q       Okay.   The -- and are the written terms
22   important in your mind?
23      A       They are most important.
24      Q       Okay.   Addendum A, Mr. Aldous went over this
25   with you some.     I want to spend a moment with you on it.
                                                                 43



1    Okay?
2       A       Yes, sir.
3       Q       So Section 1, buyback, VSDH, the seller, grants
4    the Grosses, as buyers, the option, the buyback.      You
5    see that?
6       A       Yes, sir.
7       Q       And what's the significance, if any, to you of
8    this September 1, 2009 date that's reflected in there?
9       A       Well, that's the outside date that was mutually
10   agreed upon for the buyback.
11      Q       It says, "On September 1, 2009, or such earlier
12   date as may be mutually agreed between buyer and
13   seller."    Was there ever an earlier date that was
14   mutually agreed between buyer and seller?
15      A       Not to my knowledge.
16      Q       So September 1, 2009, is the date; is that
17   right?
18      A       Yes, sir.
19      Q       Okay.   Then you get down to the buyer exercises
20   -- well, it kind of goes out of order, and I wantto
21   talk about this escrow agreement first.     Okay.   So we
22   talked about -- or there's been some talk about the
23   buyer and improving the property.     You remember that
24   discussion?
25      A       Yes, sir.
                                                              44



1       Q    Okay.   And so it said, "Before commencing
2    construction, buyer will review with seller the plans
3    and specifications and receive general consent."   Was
4    that important to you?
5       A    Very much so important.
6       Q    A multimillion-dollar house, right?
7       A    Yes, sir.
8       Q    What would you say about the quality of the
9    house that VSDH built?
10      A    I think it's top quality.
11      Q    Okay. So why was this section important to you
12   about -- about making sure that you generally agreed
13   with the plans and specs of any improvements?
14      A    Well, to preserve the integrity of the quality
15   of the house.
16      Q    All right.    What do you mean by that?
17      A    Well, again, I think I discussed this along the
18   way that I wanted to make sure that there was going to
19   be quality construction to place in that house.    I think
20   there's -- the agreement goes on to say that I need to
21   be -- you know, go out there and monitor it and look at
22   the construction and so on.   But, really, it's mostly
23   about what is going to happen in that house, what's it
24   going to look like.
25      Q    Okay.   And you testified that these plans and
                                                               45



1    specs were never given to you; is that fair?
2       A     Absolutely, they were not.
3       Q     Okay.    Then it talks about this escrow
4    agreement, right?    We talked about that a little bit.
5       A     Yes, sir.
6       Q     And it talks about -- Mr. Aldous went over with
7    you.   There's some financial pages, right?
8       A     Yes, sir.
9       Q     Okay.    Addendum B, part of the contract, right?
10      A     Yes, sir.
11      Q     So this thing says, "The attached Addendum B is
12   the spreadsheet of improvement costs proposed by the
13   buyer to be made to the property." Now, is that plans
14   and specifications?
15      A     It has nothing to do with plans and
16   specifications.
17      Q     Okay. What are they called?    What's the
18   contract identified as?
19      A     They say it's a spreadsheet of improvements and
20   costs.
21      Q     Okay. And what do they say up here they're
22   supposed to go over with you?
23      A     Buyer will review with seller the plans and
24   specifications.
25      Q     Okay.    So they say -- the contract says,
                                                               46



1    spreadsheet of improvements and costs, total of
2    $156,000. It says the buyer agrees to escrow the funds
3    with the title company and enter into an escrow
4    agreement acceptable to the seller and buyer that
5    outlines the proposed improvements to the property and a
6    disbursement to such funds.
7                 Did I read that right?
8       A    Yes, sir.
9       Q    Okay. Now, what are you talking about here?
10   What do you understand this to mean when it says to
11   enter into a contract with the title company acceptable
12   to the seller and buyerthat outlines the proposed
13   improvements to the propertyand the disbursement
                                                    . Tell
14   the jury a little bit about what that's about.
15      A    Well, what happens is if you have a buyer and a
16   seller that reach an agreement that they're going to put
17   up -- like this case it's $156,000 -- you don't want
18   them to hold the money and they don't want me to hold
19   the money, so it's held by a third party.   In this case,
20   it's the title company outlined in the contract.    And
21   then you enter into an agreement as to what's going to
22   happen with this money, what is all going to take place
23   with this money.    So, in essence, that's what it is.
24   You have a third party and an agreement between both
25   parties, the buyer and seller.
                                                               47



1       Q      Okay.   And it talks about their -- the proposed
2    improvements.     So if this escrow -- was this thing ever
3    followed through with your title company?
4       A      No, sir.
5       Q      Did you ever enter into this -- it says enter
6    into an escrow agreement acceptable to seller and buyer.
7    Did you ever enter into an escrow agreement acceptable
8    to seller?
9       A      I never entered into an escrow agreement
10   acceptable to buyer and seller
                                  .
11      Q      Okay.    Were you -- was VSDH ever given that
12   option?
13      A      VSDH never was given that option.
14      Q      Okay.   So -- and then it says, "that outlines
15   the proposed improvements."    Now, you talked about
16   earlier, hey, you need to know colors and textures and
17   materials and all that kind of stuff, right?
18      A      Yes, sir.
19      Q      You've got a multimillion-dollar house, right?
20      A      Yes, sir.
21      Q      And you told us the reasons why you wanted to
22   -- why the contract says and why you wanted the rights
23   that you wanted?
24      A      Yes, sir.
25      Q      All right. To preserve the integrity of that
                                                               48



1    home, and make sure it was acceptable to you -- to VSDH?
2       A      Well, in addition, I don't want liens filed on
3    the house by them not paying it.     If they had the money
4    and decided to --
5                     THE COURT: Give to the bailiff.
6                     MR. SHAW: I'm sorry?
7                     THE COURT: The telephone, Mr. Chaiken,
8    give it to the bailiff.
9                     MR. CHAIKEN: I thought I had turned it
10   off.   I apologize.
11      Q      (By Mr. Shaw) So -- but the proposed
12   improvements, that was most important?
13      A      Most important, most important, yes, sir.
14      Q      All right. Now, going back, this is Addendum A.
15   This is Page 2, buyer's improvements.      Nowgoing back to
16   Page 1.   All right.    Now it talks about the buyback, the
17   buyer exercises the buyback option.     That's later in
18   time, right?
19      A      Yes.    That's like on May 2nd, they have to
20   exercise the buyback by that date.
21      Q      It's May 1st, right?
22      A      May 1st then.   Okay.   I'm sorry.
23      Q      And you've got until September 1.    VSDH has
24   until September 1, 2009; is that accurate?
25      A      Yes, sir.
                                                              49



1       Q    Okay.     Now it says that the buyer -- Section B,
2    buyer may not sell or convey any rights or interests to
3    third parties unless seller breaches its obligation to
4    repurchase.    Now, could you breach the obligation prior
5    to September 1?
6       A    I don't think so.
7                   MR. ALDOUS: Objection, Your Honor.   That
8    calls for a legal conclusion.
9                   THE COURT: Sustained.
10                  MR. SHAW: Okay.
11      Q    (By Mr. Shaw) Did you believe you had until
12   September 1?
13      A    Yes, sir.
14      Q    Okay.     The -- comes down here and it says, "On
15   or before September 1, unless buyer and seller agree
16   upon another stated date buyer shall vacate."    Did I
17   read that right?
18      A    Yes, sir.
19      Q    Okay. Then it comes down here later on, it
20   says, "Should the buyer enter into a contract to sell
21   the property, the buyback option will immediately
22   terminate and will no longer be available to buyer."
23   Did I read that right?
24      A    Yes, sir.
25      Q    It's your understanding -- do you have an
                                                              50



1    understanding as to whether or not the Grosses entered
2    into a contract prior to September 1, 2009, to sell the
3    property to somebody else?
4       A    Yes, they did.
5       Q    And do you have an understanding as to whether
6    or not the Grosses owned the property on September 1,
7    2009?
8       A    I know they did not.
9       Q    So, were all of those dates and everything in
10   that contract important to you?
11      A    Yes, sir.
12      Q    That was -- was that a negotiated document?
13      A    Yes, sir.
14      Q    Between the Grosses and VSDH?
15      A    Yes, sir.
16      Q    Okay.   Now you said earlier, you said, hey, I
17   initialed in my corporate capacity the pages of the
18   addendum, right?
19      A    Yes, sir.
20      Q    Okay.   And you made a distinction. You said,
21   "I did not sign that document personally."
22                MR. ALDOUS: Objection, Your Honor, that's
23   legally irrelevant.
24                THE COURT: Overruled.
25      Q    (By Mr. Shaw) Did you say that?
                                                                51



1       A      Yes, sir.
2       Q      You also said that you anticipated that to --
3    for you to be personally liable on the buyback, you
4    anticipated another document?
5       A      Yes, sir.
6       Q      That's what you said?
7       A      Yes, sir.
8       Q      All right.   Now, if this -- the Grosses had a
9    lawyer.   We talked about that, right?
10      A      Yes, sir.
11      Q      And you anticipated another document.   Why did
12   you anticipate another document if you were going to be
13   personally liable?
14      A      Well, because the contract is between VSDH and
15   the Grosses.   It's not a contract with me.   It's not a
16   contract with Mr. Shaw.    It's a contract between VSDH
17   and the Grosses; therefore, something else has to be
18   signed that says that Doug Hickok's a guarantor or Van
19   Shaw's a guarantor, in this case both.
20      Q      Okay. Let's look at Addendum A again. Doug
21   Hickok and Van Shaw, as partners, hereby personally
22   guarantee seller's obligations under the buyback, right?
23      A      Yes, sir.
24      Q      Is there any document Van Shaw signed to
25   personally guaranty that?
                                                                  52



1       A      No, sir.    Neither is there one that Doug Hickok
2    signed.
3       Q      How can Van Shaw be personally responsible if
4    Van Shaw didn't sign it?
5                  MR. ALDOUS: Objection, Your Honor,
6    irrelevant.   He's not in the case.
7                  THE COURT: Sustained.
8       Q      (By Mr. Shaw) So, in your experience in
9    personally -- you have personally guaranteed things
10   before in your history?
11      A      Yes, sir.
12      Q      And have you ever not signed an independent
13   document in your individual capacity if you were going
14   to personally guarantee something?
15      A      You might, yes.     I probably have, but it said
16   Doug Hickok individual guarantor outlined next to it.
17   It might be on the same document, but 90 percent of the
18   cases it's a separate legal document that says guarantee
19   across the top.
20      Q      And when it says Doug Hickok guarantor, do you
21   sign that Doug Hickok as guarantor?
22      A      You sign it Doug Hickok with guarantor
23   underneath it.    Yes, sir.
24      Q      Right. And it might be some company name
25   that's also part of the entity -- part of the contract;
                                                                 53



1    is that right?
2       A       Well, there would be a separate line for the
3    company to sign.       There would be a separate line for any
4    guarantor to sign.
5       Q       Okay. So when we looked at this thing, separate
6    line for the company to sign, separate line for Hickok
7    to sign.    That's what you'retalking about, right?
8                   MR. ALDOUS: Objection, form, and that's
9    not what the document says.      That's leading also, Your
10   Honor.
11                  THE COURT: Sustained.
12                  MR. SHAW: Okay.
13      Q       (By Mr. Shaw) When you're talking about
14   separate line for the company, are you saying like this?
15      A       Yes, sir.
16      Q       Okay.   And then you're saying a separate line
17   for Hickok as guarantor. Are you saying that would be
18   here and it might say Doug Hickok as guarantor?
19      A       Yes, sir.    You probably have to cross out that
20   seller and put in Doug Hickok as -- you'd definitely
21   have to put Doug Hickok asguarantor.
22      Q       Okay.   So you were willing to sign a personal
23   guarantee agreement if the terms were acceptable to you
24   and Van Shaw; is that right?
25      A       Pursuant to my discussion with the Grosses'
                                                                54



1    agent, John Buttemiller, I needed to have Van Shaw and I
2    both sign this agreement.    In addition, I needed to have
3    a separate agreement.   I needed to review it.
4                   THE COURT: Mr. Aldous?
5                   MR. ALDOUS: Your Honor, I object to the
6    characterizationas Mr. Buttemiller as being our agent.
7    There's no facts in evidence on that.
8                   THE COURT: Sustained.
9       Q    (By Mr. Shaw) Okay. So, generally, if there was
10   going to be a buyback and Doug Hickok was going to
11   personally guarantee it or Van Shaw was going to
12   personally guarantee it, in this situation, who would
13   you have expected or anticipated would prepare that
14   document?
15      A    I would say the lawyers would prepare the
16   document.
17      Q    The lawyers for who?
18      A    It probably would have been on the buyback the
19   Grosses or our lawyer or the partnership lawyer.
20      Q    Okay. The Grosses' lawyer.      Did the Grosses'
21   lawyer ever send you the buyback?
22      A    Are you talking about the buyback?
23      Q    Yes.    I'm sorry.   Did the Grosses' lawyer ever
24   send you a guarantee agreement?
25      A    No, sir.
                                                              55



1       Q    Okay.   You have things that you're doing in
2    your life with your family and your business, right?
3       A    Yes, sir.
4       Q    Would you generally say you're a busy guy?
5       A    Very busy.
6       Q    Okay. Do you have more things going on at one
7    time than just one thing, one thing, one thing, right?
8       A    Yes, sir.
9       Q    When did you first realize, hey, I didn't sign
10   a personal guarantee on this thing?   When did you first
11   realize that?
12      A    I don't know.    I mean, I'm thinking back on
13   that as part of the process of this trial, and it may
14   have come up right when we started realizing that the
15   Grosses were in default under their contract with us
16   when we searched back through all the documents.
17      Q    Okay. The -- so do you remember in May of 2009
18   when the Grosses wrote a letter about -- or wrote an
19   email about wanting to institute the buyback?
20      A    I'm not -- that's not real fresh.   It's been
21   placed in front of me in these proceedings, but it's not
22   fresh in my mind
                    .     No, sir.
23      Q    Now that I'm thinking back for a minute, let me
24   go off track for just a minute.   There's been some talk
25   of the escrow agreement and the failure of the Grosses
                                                             56



1    to cite that. Do you remember that?
2                  MR. ALDOUS: Your Honor, I'm not sure what
3    exhibit --
4                  MR. SHAW: Exhibit 29.
5                  THE COURT: Defendant's or plaintiff's?
6                  MR. SHAW: Well, it's marked here as
7    Defendant's, Judge, but I think it was previously --
8                  MR. CHAIKEN: That's ours.
9                  MR. SHAW: Right.    I believe that's in
10   evidence.
11                 THE COURT: Approach.
12                 (Sidebar conference held)
13                 THE COURT: You may proceed.
14                 MR. SHAW: Thank you, Judge.     I'm going to
15   approach and ask for the witness copy, please.
16      Q      (By Mr. Shaw) Sir, let me have that book for a
17   moment.   Thank you, Douglas.
18                 Okay. Now, do you remember this July 3,
19   2007, letter that was written from a lawyer at this
20   Smith, Stern, Friedman & Nelms firm?
21      A      You'd have to show me the rest of that document
22   there.
23      Q      All right.   Recognize this fellow, Leonard
24   Stern?
25      A      Yes, sir.
                                                             57



1       Q    Who's that?
2       A    Leonard Stern, nickname Hap, is my attorney.
3       Q    Okay.   So Mr. Stern writes this letter July 3,
4    2007. The closing had just been in the end of June; is
5    that right, June 28 or 29?
6       A    Yes, sir.
7       Q    Okay. So Mr. Stern writes and he says, "This
8    firm represents the seller," right?
9       A    Sure.
10      Q    That's VSDH, right?
11      A    Yes, sir.
12      Q    It says, "The closing was consummated on June
13   29, 2007; is that right
                           ?
14      A    Yes, sir.
15      Q    And he refers to the addendum that we've been
16   talking about that addendum, haven't we?
17      A    Yes, sir.
18      Q    Okay.   Buyer agrees to escrow $156,000
19   acceptable to seller andbuyer.   Remember that?
20      A    Yes, sir.
21      Q    Okay.   Paragraph 2 of the addendum, "Contract
22   further provides that buyer will obtain seller's consent
23   to the plans and specifications applicable to the
24   improvements?
25      A    Yes, sir.
                                                                58



1       Q     Proposed performance standards, you see that?
2       A     Yes, sir.
3       Q     Okay.    Now, Mr. Stern goes on.   He says,
4    "Notwithstanding
                    , the buyer failed or refused to enter
5    into the escrow agreement.    Instead, buyer breached the
6    agreement with the mortgage, the First Horizon, to fund
7    the cost. Please be advised seller reserves all rights
8    under the contract, may be available, respectfully
9    requests that buyer comply with all other aspects
10   without limitation, obtaining seller's consent to the
11   plans and specifications applicable to the construction
12   improvements."    Do you see that?
13      A     Yes, sir.
14      Q     Satisfaction of such obligation shall be a
15   condition precedent to thebuyer's right to exercise the
16   buyback option.     Do you see that?
17      A     Yes, sir.
18      Q     Okay.    Now, did the buyer, to your knowledge,
19   ever cure the default that Hap Stern's writing about
20   here July 3, 2007?
21      A     No, sir.
22      Q     Was that important to you that that was not
23   cured?   Was that significant to you?
24      A     It was very significant to me because that puts
25   him in default under the contract.
                                                                59



1          Q   Okay.    And why is that significant?
2          A   Their default?
3          Q   Yes, sir.
4          A   Well, it basically in my mind at that time, it
5    put the buyback in jeopardy.
6          Q   Okay.    And tell me about that.
7          A   Well, if they -- if they had done what they
8    said they were going to do under the terms of the
9    contract, then the contract required us to buy back the
10   property when they asked us to buy it back.       They didn't
11   do that; so, therefore, we have a judgment call.      We can
12   buy it back if we want to, but we don't have to buy it
13   back.
14         Q   Okay.    Now, the -- and is that what you were
15   telling the jury earlier, that you were evaluating that
16   issue?
17         A   I think we had the right to evaluate that issue
18   until September 1.
19         Q   Okay.    Now let me show you Defendant's Exhibit
20   54, which was previously -- let me make sure it is --
21   which was previously shown.
22                  MR. SHAW: Is -- Your Honor, is Exhibit 54
23   in evidence?      I believe it is.   And this would beGross
24   54.
25                  THE COURT: VSDH or --
                                                                60



1                   MR. SHAW: Gross.
2                   THE COURT: Gross, no.
3                   THE REPORTER:     It was admitted yesterday.
4                   MR. ALDOUS: I believe that I offered it
5    after proving it up yesterday, first time.
6                   THE COURT: Okay.
7                   MR. SHAW: May I show Gross 54, Your
8    Honor?
9                   THE COURT: You may.
10      Q      (By Mr. Shaw) This is Exhibit Gross 54, okay,
11   Doug.    All right. Are you with me?     And I believe this
12   was gone over yesterday.    Do you remember this?
13      A      I remember the discussion about it.    Yes, sir.
14      Q      Okay.   And I wrote Betsy Gross June 7, 2009, I
15   said, "Thank you for the June 6th email.     Please call to
16   discuss."    I gave my number.   "I did review the
17   enclosures you sent and note that the entity is no
18   longer the responsible party.     It does not contain any
19   personal guarantee which is what I remembered.        I look
20   forward to speaking with you."     Do you remember that?
21      A      I remember talking about it.    Yes, sir.
22      Q      Okay.   When the Grosses triggered this buyback
23   in May, I asked you to send me the contract; is that
24   right?
25      A      I believe I saw something in evidence about me
                                                              61



1    sending it to you at that time.
2       Q    Because I had forgotten exactly -- or did you
3    remember in May exactly whether you had signed a
4    personal guarantee or not?
5                    MR. ALDOUS: Well, Your Honor, I was
6    objecting because he started out testifying, but then he
7    changed it to a question.
8                    MR. SHAW: I did.   I saw him stand up and
9    I changed it.
10      Q    (By Mr. Shaw) Did you remember that -- whether
11   you had or had not personally signed a separate
12   guarantee agreement on this buyback in early May, 2009?
13      A    I think I need to say that it was around --
14   sometime around May when my memory was reconfirmed that
15   I did not sign --
16      Q    Okay.
17      A    -- a guarantee.
18      Q    You had a vague recollection that even though
19   you expected to sign a guarantee, never came, you never
20   signed one?
21      A    I -- at the time, I could not remember until I
22   went through the files and then -- but I'm not sure at
23   what time -- what date that was that I went through the
24   files to determine that I did not sign one.
25      Q    All right.    So, the way this closing worked
                                                              62



1    where you thought another document was going to come
2    later, a personal guarantee, and you were going to sign
3    it, how does that work?     How do these closings,
4    particularly this one that was kind of condensed and
5    rushed, how does that work?
6       A     Well, I think you -- you have a contract that's
7    in place, right, and the contract, you know, it has
8    certain documents or needs that have to happen at the
9    time of the transfer of title, which is the closing
10   date, whenever you buy something is at that point in
11   time.   So you go in -- or as I testified to, you either
12   go in individually or you go in as both parties or they
13   may even bring the documents to my office and they say,
14   "Sign all this," and, literally, place documents maybe
15   about this thick.   I don't know if anybody's bought a
16   house, but it's -- today, it's probably like this.    But
17   it's probably like that, and then you just start signing
18   where they have their -- you know, their initials to
19   sign.
20      Q     Okay.   So there's a lot of documents and all of
21   them might be there in proper order at one time or all
22   of them might not; is that fair?
23      A     That's possible.    Yes, sir.
24      Q     And sometimes there are some follow-up
25   documents needed; is that fair?
                                                             63



1       A    Yes, sir.
2       Q    And in this case, there was a follow-up
3    document needed in your mind. You were ready to sign
4    it, just never got it, fair?
5       A    I think my position was, as I've stated
6    earlier, that I -- as I told Mr. Buttemiller, I was
7    willing to sign a guarantee as long as Mr. Shaw agreed
8    to sign a guarantee, as long as it was in the form
9    acceptable to myself on my guarantee.   And then Mr. Shaw
10   has to speak for himself.
11      Q    The -- there was some talk, Doug, about this,
12   about this contract.   And you sent me the contents that
13   was in --
14                THE COURT: Do you have an exhibit number?
15                MR. SHAW: I'm sorry.     Gross 92.
16      A    It looks like I sent you --
17                MR. SHAW: Hang on just a second.     Let me
18   make sure the judge confirms it.
19                MR. ALDOUS: It's in.     I just didn't know
20   what number he was referring to.   I'm sorry.
21                THE COURT: It's just a number.
22                MR. SHAW: Okay.
23      Q    (By Mr. Shaw) So, Doug, when this document --
24   you're sending me the contract; is that right?
25      A    Yes, sir.
                                                              64



1       Q    All right. And that's because you and I both
2    had some foggy memory in what had happened in the last
3    couple of years, and so we needed to see the contract to
4    figure out what was up.    Is that fair.
5                 MR. ALDOUS: Your Honor, I object to --
6                 THE COURT: Sustained.
7                 MR. ALDOUS: -- to the sidebar.
8                 THE COURT: Rephrase, Mr. Shaw.
9                 MR. SHAW: Yes.
10      Q    (By Mr. Shaw) Did you have a good memory, Doug,
11   of that contract when I asked you to send it to me?
12      A    Probably not because it was executed a couple
13   of years earlier, so I would say, no, to that.
14      Q    Okay.   If you're going to approve plans and
15   specifications on a house like this for the Grosses --
16   and you said you went out there in November of 2008, and
17   you were surprised how far along it was, the condition.
18   Remember that generally?
19      A    Yes, sir.
20      Q    All right.   Paul Kramer was the builder that
21   built this house, right?
22      A    Yes, sir.
23      Q    All right. Would you have asked Paul Kramer to
24   look at the plans and specs before you did anything?
25      A    I would have definitely asked a professional or
                                                                 65



1    somebody in the business to review the plans and specs.
2       Q       Would somebody like Paul Kramer be the person?
3       A       It could have been. Yes, sir.
4       Q       All right.   And why?
5       A       Because they do it on a day-to-day basis. They
6    build houses.      They understand and can read plans and
7    specs much better than I could.
8       Q       Okay.    And so would you want some independent
9    look at the plans and specs before you said okay?
10      A       Yes, sir.
11      Q       All right. Gross 38, June 28, 2009, are you
12   with me?
13      A       Yes, sir.
14      Q       Okay.   It was written by me.   Counsel talked to
15   you about it, right?
16      A       Yes, sir.
17      Q       It says, "Per your offer yesterday to allow us
18   to enter into an agreement, can you give us that
19   agreement?    Recall that the contract says that after May
20   1, if we enter into a contract to sell the home, the
21   buyback option goes away," right?
22      A       Yes, sir.
23      Q       You have no knowledge of any agreement ever
24   being given to the Grosses to enter into a buyback --
25   enter into a contract and keep the buyback option, fair?
                                                                66



1       A       I mean, there was no -- no agreement entered
2    into that would have rescinded the -- you know, the
3    buyback.
4       Q       All right.    And reading that document, is there
5    any question in your mind that the Grosses recognized
6    that?
7                   MR. ALDOUS: Let me just object, Your
8    Honor, that he's asking for a speculation.
9                   THE COURT: Sustained.
10      Q       (By Mr. Shaw) After looking at the contract,
11   was your memory the same; that if the Grosses entered
12   into a contract to sell the home, the buyback option
13   went away?
14      A       That's correct.
15      Q       And you believe that existed and was proper?
16      A       Yes, sir.
17                  MR. SHAW: That's all I have.      I pass the
18   witness.    Thank you, sir.
19                  THE COURT: Mr. Chaiken?
20                  MR. CHAIKEN: Yes, Your Honor
                                               .
21                  THE COURT: No, stop.      It is 12:23.   We'll
22   take a luncheon recess until 1:25.      During this recess,
23   the jury is under the same instructions you've been
24   previously given.       You're not to discuss this case among
25   yourselves or with anyone else until such time as the
                                                              67



1    case has been submitted to you for your deliberations or
2    you have been discharged as jurors. The jury is excused
3    for recess.
4                  (Jury exits the courtroom)
5                  THE COURT: You may step down, Mr. Hickok.
6                  THE WITNESS: Thank you.
7                  (Lunch recess taken)
8                  THE COURT: All rise.
9                  (Jury enters the courtroom)
10                 THE COURT: You may be seated.
11                 Mr. Chaiken, you may proceed.
12                 MR. CHAIKEN: Thank you, Judge.
13                       CROSS-EXAMINATION
14   BY MR. CHAIKEN:
15      Q    Mr. Hickok, may I call you Doug?
16      A    Yes, sir.
17      Q    I feel kind of funny calling you Mr. Hickok.
18   I've known you for so long.   Doug, I'm going to do my
19   best to try to cover some topics that I think need
20   either some clarification or new material so that we
21   don't spend too much time going over matters that have
22   been, you know, cleared up already.
23                 You have an exhibit book sitting in front
24   of you, and I would like you to please turn to the
25   document that is under Tab Number 53.
                                                               68



1       A    I do not have a 53.    I only have a 52 and it
2    goes to 59.
3                   THE COURT: Are you talking VSDH exhibits
4    or are you talking about Gross exhibits?
5                   MR. CHAIKEN: No, this is -- 53 is -- I
6    apologize.    It is one of the admitted exhibits and --
7    well, let me just do this.
8       Q    (By Mr. Chaiken) Let me show you -- can you
9    see Exhibit 53?   Well, I can't publish it to the jury.
10   Forgive me.
11                  Do you know who John Buttemiller is?
12      A    Yes, sir.
13      Q    Who is John Buttemiller?
14      A    I believe he's a broker or a real estate sales
15   person with the Carroll Realty.
16      Q    Was he involved in the buy-sell transaction
17   between VSDH Vaquero, Ltd. and Mr. and Mrs. Gross?
18      A    Yes, sir.
19      Q    Can you tell the ladies and gentlemen of the
20   jury what a real estate broker does just generally in a
21   transaction of this nature in case they are not familiar
22   with what the broker's role is in the transaction?
23      A    A real estate broker functions as an
24   intermediary or an agent.    In the case of this
25   transaction, there was one broker.   So he was an agent
                                                             69



1    for the Grosses and also an agent for VSDH.   So that is
2    if there is something we don't converse -- the Grosses
3    and VSDH don't converse a lot, a lot of the language, a
4    lot of the negotiation is handled through the broker.
5    So if they want a message delivered to me, then the
6    broker will deliver it to me, and vice versa. VSDH will
7    deliver it to the Grosses.
8       Q    In your experience in real estate transactions
9    involving the buying or selling of real property, are
10   there occasions when real estate brokers or agents
11   represent just one of the parties in the transaction?
12      A    Yes, sir.
13      Q    Okay.     Do you have a recollection in this
14   particular transaction as to whether Mr. Buttemiller
15   represented both parties or just one of the parties?
16      A    Represented both parties.
17      Q    So when -- did you deal with Mr. Buttemiller
18   directly in the transaction?
19      A    I dealt with them, you know, through the
20   contract stage.    Yes, sir.
21      Q    So you spoke with him, right?
22      A    Yes, sir.
23      Q    Did you understand that if he was asking you
24   something on behalf of the Grosses that he was
25   authorized to act for them in asking you for whatever it
                                                                70



1    might be?
2       A      Yes, sir.
3       Q      He appeared to be authorized based on your
4    understanding of the intermediary relationship; is that
5    right?
6       A      Yes, sir.
7       Q      All right.   And I want to talk to you about a
8    couple of aspects of the -- of the contract that you
9    signed.   Before I do that, though, Exhibit No. 6, which
10   you were shown yesterday by Mr. Aldous and that Mr. Shaw
11   showed you a little while ago, spoke about a cash sales
12   price in the new home contract with the Grosses of
13   $2,851,871.   Do you recall seeing that?
14      A      Yes, sir.
15      Q      Right. Now, if I understand the testimony that
16   has been given thus far --
17                  THE COURT: Excuse me, Mr. Chaiken.      Would
18   you clarify Gross Exhibit 6 or VSDH Exhibit 6?
19                  MR. CHAIKEN: I was referring to
20   Mr. Hickok having been shown what is Gross 2, not 6.       I
21   apologize.    I misspoke.
22      Q      (By Mr. Chaiken) Now this is Gross Exhibit 3,
23   and Gross Exhibit 3 has a purchase price where it
24   scratches through the $2,851,000 number.    And it's
25   replaced with 2,695,000; is that correct
                                            ?
                                                                71



1       A      Yes, sir.
2       Q      All right. Can you explain to the ladies and
3    gentlemen of the juryhow the price went from 2,851,000
4    to $2,695,000?
5       A      Well, I mean, my opinion is that the 2,851, the
6    original purchase price there is a price that we agreed
7    to with the Grosses.    And I -- in my opinion, what
8    happened is that they were going to take the $156,000
9    out of that amount of money, the 2,851 and go fix up the
10   house.    And I guess something along the way, maybe their
11   lender or something said we're not letting you take the
12   money out.   And they wanted the contract price to be
13   2,695,000, and the money gets placed over in with their
14   lender.   I think that's changed it.   I'm not sure
15   exactly everything that happened there, but that's just
16   -- it was a change for some reason.
17      Q      I want to make sure that the ladies and
18   gentlemen of the juryunderstand this concept.    They
19   were paying $2,851,000 when the contract had that as a
20   purchase price, right?
21      A      Right.   But I'm -- I'm going to give them out
22   of that 2,851, I'm going to give them $156,000 back.
23      Q      They wanted you to give them the money back?
24      A      I believe that was what our original agreement
25   was.
                                                                72



1       Q     Okay.
2       A     I don't have a copy of the original agreement,
3    but -- the whole original agreement.
4       Q     But for whatever reason, that had an issue that
5    required them to scale the price back so, in your
6    understanding, they could get their loan?
7       A     I don't believe it was.    It would have had to
8    have been on the Grosses' side for some reason for --
9    they had to change it up.
10      Q     Okay.    Doug, will you turn to Gross Number --
11   well, before we do that, I want you to look at the
12   bottom of the first page of the new home contract.    You
13   see right here?    You see up on the screen?
14      A     I'm looking at it here.
15      Q     Okay. Now, there's been a lot of discussion
16   about signatures and initials.     And you see your initial
17   on the bottom of the first page of the contract; is that
18   right?
19      A     Yes, sir.
20      Q     Okay.    And next to your initial, what is the
21   word that you see?
22      A     Seller.
23      Q     And next to that going this way, you see
24   initials next to the word, "buyer"; is that right?
25      A     Yes, sir.
                                                               73



1       Q    What does that mean to you?
2       A    Probability the initials of the buyer, which
3    would be both the Grosses.
4       Q    Okay.     And when you see your initial next to
5    the word, "seller," what do you understand the purpose
6    or whose initial that is?
7       A    Well, that's an initial on behalf of the
8    seller, which is the partnership, VSDH.
9       Q    All right. And then it says -- can you read
10   what it says here over above this TAR1604?
11      A    It says, "Initialed for identification by the
12   buyer and seller."
13      Q    What does it mean to you to initial a document
14   for identification in your experience as a real estate
15   investor, seller, and person who enters into these kinds
16   of contracts on a routine basis?
17      A    When you initial at the bottom of a page, just
18   to make sure that the page doesn't get changed on you.
19   In other words, if this was left blank and you didn't
20   have your initials on it, somebody else could just stick
21   another similar page in there and, say, change up the
22   price or change up the document on the way to the title
23   company or anything.    So you initial it to make sure it
24   doesn't happen.
25      Q    And in this case, when you placed your initials
                                                               74



1    on the first page of the contract at the bottom of the
2    document, who did you intend to initial the document for
3    or on whose behalf did you intend to initial it?
4       A     Again, the partnership is VSDH, Ltd.
5       Q     And there's no place there for a guarantor or
6    any individual's signature, only for the buyer and the
7    seller; is that right
                         ?
8       A     Again, there is no place anywhere on this
9    contract or anywhere for a guarantor to sign or
10   anything.
11      Q     Okay.   And the second page of the exhibit and
12   of the contract, similar situation; is that right?
13      A     Yes, sir.
14      Q     The same would be true with the third page,
15   right?
16      A     Yes, sir.
17      Q     Okay.   And Page 4 of 9, right?
18      A     Yes, sir.
19      Q     And that would be true all the way through the
20   page that ends -- let's see here -- 7 of 9, correct?
21      A     Yes, sir.
22      Q     See that there.   All right. Now, when you get
23   to Page 8 of 9, you don't see any initials, right?
24      A     Well, first off, there's no blank at the bottom
25   of the page for an initial.   There's just a signature
                                                              75



1    line that represents that it's been signed. So it can't
2    be slip sheeted because it's been signed.
3       Q     Because it has a signature on it already?
4       A     Yes, sir.
5       Q     Okay.   And you see your signature next to the
6    initials VP under the -- above the space that says
7    seller, VSDH, Vaquero Venture, Ltd., right?
8       A     Yes, sir.
9       Q     All right.   And on page number -- excuse me.
10   I'm going the wrong way here -- 9 of 9, there also is no
11   place for initialing, right?
12      A     Again, because there are natural signatures on
13   that page or natural handwriting.
14      Q     Now, do you recall -- and I'm going to come
15   back to this initialing issue in a moment.    But do you
16   recall the testimony earlier -- I think it was yesterday
17   -- responses to some of Mr. Aldous' questions about a
18   first amendment to the new home contract?    Remember this
19   document?
20      A     Yes, sir.
21      Q     Now this document amended the main contract,
22   right?
23      A     Yes, sir.
24      Q     That was your testimony.   Now you recall
25   speaking with Mr. Shaw earlier about Paragraph Number22
                                                              76



1    of the contract that says agreement of the parties,
2    right?
3       A     Yes, sir.
4       Q     All right.   And it says this contract contains
5    the entire agreement of the parties.   Who do you
6    understand the parties to be?
7       A     The parties to the contract are VSDH, as the
8    seller, and then the Grosses, as the buyer.
9       Q     Any other parties?
10      A     No, sir.
11      Q     All right.   And it says, "And cannot be changed
12   except by their written agreement."    Did I read that
13   right?
14      A     Yes, sir.
15      Q     Who do you understand the word"their" to
16   pertain to?
17      A     The buyer and the seller.
18      Q     All right.   Now, who are the parties to the
19   first amendment to the new home contract?
20      A     It's VSDH Vaquero Venture, Ltd. I just call it
21   VSDH, and then there's Ken and Betsy Gross.   One's the
22   seller, obviously, which is VSDH; and the buyer is Ken
23   and Betsy Gross.
24      Q     All right.   And on Page 2 of that agreement,
25   who is the seller?
                                                                77



1       A       The seller is VSDH Vaquero Venture, Ltd.
2       Q       Okay.   And who signed it on behalf of the
3    seller?
4       A       Well, it is -- actually, the general partners
5    always sign on behalf of a partnership, and then I
6    signed on behalf of that general partner, which is Doug
7    M. Hickok as the vice president of that entity.
8       Q       Because the entity isn't a human being, it
9    can't sign its name, right, so you sign for it; is that
10   right?
11      A       I think it's like Mr. Shaw said with the --
12   like Dell Computer. I mean, it's an entity.     It's a
13   company.
14      Q       And then if we look at the last page of the
15   amendment, we see signatures by the purchaser. And you
16   see Ken Gross and Betsy Gross, right?
17      A       Yes, sir.
18      Q       Now, looking at the rest of the page, where
19   does it say Doug Hickok?
20      A       I don't see my name on that page.
21      Q       Why isn't your name on either of the signature
22   pages?
23      A       Well, my name is only on there on behalf of
24   VSDH as the seller of the property.
25      Q       And you weren't a party to the contract, right?
                                                                 78



1       A     Personally, I was not a party to the contract.
2       Q     Now when I say, "you," I mean you, Douglas
3    Hickok, right?
4       A     Right.
5       Q     All right.    But if you were a party to the
6    contract prior to this first amendment, would you agree
7    that Paragraph 22 of the contract would have required
8    your signature on an amendment?
9                    MR. ALDOUS: Your Honor, I object.    That
10   calls for a legal conclusion.
11                   THE COURT: Sustained.
12      Q     (By Mr. Aldous) Paragraph 22 we just talked
13   about, right?     It says the contract contains the entire
14   agreement of the parties and cannot be changed except by
15   their written agreement, right?
16      A     Yes, sir.
17      Q     Did you ever sign any amendments or changes to
18   the contract?
19      A     If you're talking about me personally --
20      Q     When I say, "you," I mean you.
21      A     Okay. Me personally, no.       I never signed
22   anything related to this transaction personally.
23      Q     Is that because you weren't a party?
24      A     I'm not a party to the contract.     I'm not the
25   buyer.   I'm not the seller.
                                                               79



1       Q       Now I want to go back to the addendum to the
2    contract.    And this is the fist page of Addendum A
3    that's received a lot of attention, right?
4       A       We've talked about it a lot.   Yes.
5       Q       And on the first page of Addendum A, which
6    contains the buyback option, or at least until it
7    continues on to the next page, we see the same initials
8    that we saw on the -- in the blocks of the pre-printed
9    contract, the form contract, for seller and for buyer,
10   right?
11      A       Yes, sir.
12      Q       Right.   And why was this page initialed by you?
13      A       Well, again, it's part of the original -- it's
14   all part of the whole contract.     And although they
15   didn't have a little seller and a buyer blank there, you
16   can see I, kind of, undermy initial, I put a line.      So
17   it's kind of like I put a line on behalf of the seller,
18   and the seller, again, is VSDH. That is initialed only
19   as VSDH.
20      Q       So it's basically continuing the practice that
21   was on the form?
22      A       Yes.   It's on every page of the contract.
23      Q       Except those that were signed by somebody?
24      A       Yes.   Yes, sir.
25      Q       Okay. And, of course, this page, Addendum A,
                                                              80



1    talks about the Grosses and the VSDH seller's
2    obligations under the buyback option, right?
3       A     Yes, sir.
4       Q     And so you initialed it on whose behalf?
5       A     I initialed on behalf of the seller, and the
6    Grosses initialed on behalf of the buyer.
7       Q     Okay.   And when we get to the next page of the
8    addendum, we see your initials and the Grosses' initials
9    again at the bottom; is that right?
10      A     Yes, sir.
11      Q     Okay.   And when you initialed this page, on
12   whose behalf were you initialing; your own or the
13   partnership?
14      A     Again, I never initialed or wrote my name as an
15   individual.    I only wrote it on behalf of the
16   partnership, and those were initials at that point in
17   time.
18      Q     All right.   Now I want to call your attention
19   to the last page of the addendum.   And you see right
20   here where it says, In addition, in Paragraph 15 in the
21   body of the contract under default, seller reinstates
22   language stricken.    And then it says in quotes, seek
23   such other relief as may be provided by law or both, end
24   quote.   Did I read that right?
25      A     Yes, sir.
                                                                81



1       Q     All right.    So were you the seller?
2       A     Yes, sir.
3       Q     You, Doug Hickok, were the seller?
4       A     No, not me personally. Of course, not.       Again,
5    I said it so many times.    No, VSDH is the seller.
6       Q     Okay.   And where does it say in this language
7    that Doug Hickok or Van Shaw, guarantors, reinstate
8    language stricken?
9       A     Again, you don't see that anywhere on this
10   contract.
11      Q     So now, let's look at, if we may, Paragraph 15
12   of the contract.     And you see Paragraph 15 right here on
13   Page 5 of the contract that says default.     All right?
14      A     Yes, sir.
15      Q     Are you with me right over here?
16      A     I am.
17      Q     Okay.   Now, it has some typewriting on there
18   right?   There's text that was typed into the form --
19      A     Sure.
20      Q     -- that talks about default, right?
21      A     Yes, sir.
22      Q     All right.    And then you see starting right
23   here, okay, going all the way down to here and then over
24   here cross-throughs.    Do you see that?
25      A     Yes, sir.
                                                              82



1       Q    Is that the stricken language that was referred
2    to at the end of the addendum that seller reinstated?
3       A    Yes, sir.
4       Q    Okay.    Now, what is your understandingof the
5    cross-throughs that are contained in Paragraph 15 where
6    the language is blacked out?
7       A    Well, I have to read it real quick.   Excuse me.
8       Q    In other words, what was the purpose of
9    blacking it out?
10      A    Oh, the purpose of blacking it out is to make
11   it no longer a part of the contract.
12      Q    Okay.
13      A    Then the buyer and the seller initial off to
14   the side, which you can see out there that they're in
15   agreement for the blackout.
16      Q    So, in other words, they initial that change;
17   is that right?
18      A    Yes, sir.
19      Q    All right.   And when you initialed that change,
20   you were initialing it on whose behalf?
21      A    On behalf of the seller.
22      Q    All right.   Now, this contract originally said
23   that -- and let me get to the part here, right here
24   where it says -- beginning with, "If seller." You see
25   that part there?
                                                                 83



1       A      Yes, sir.
2       Q      So it says, "If seller fails to comply with
3    this contract for any other reason," and "other reason"
4    would refer back up to the language above, except for
5    the fault of the buyer.     It says, "Seller will be in
6    default and buyer may" -- and then you see that line
7    right here?
8       A      Yes, sir.
9       Q      Okay.   You go over to this line and it says
10   what?    Can you read what that says?
11      A      It says, "As it's sole and exclusive remedy
12   entered" -- I can't see.
13      Q      Either.   Does it look like "either"?
14      A      Okay.   Either.
15      Q      Either.     And then you go back to, a, enforce
16   specific performance. And then we see a strike-through,
17   right?
18      A      Yes, sir.
19      Q      "Or terminate this contract and receive the
20   earnest money thereby releasing both parties from this
21   contract."    Did I read that right?
22      A      Yes, sir.
23      Q      And before this part was stricken out where it
24   says -- it said, "seek such other relief as may be
25   provided by law or both," right?
                                                              84



1       A     Yes, sir.
2       Q     All right.    And the seller, based upon the
3    portion of the addendum that we read a little while ago,
4    reinstated seek such other relief as may be allowed or
5    provided by law or both, right?
6       A     Yes, sir.
7       Q     Doug Hickok never did that, right?
8       A     No, sir.
9       Q     Guarantor never did that, if there was a
10   guarantor?
11      A     No, sir.
12      Q     Van Shaw never did that, did he?
13      A     No, sir.
14      Q     All right.    Do you understand that you are
15   being sued for damages in this case?
16      A     Are you saying me personally --
17      Q     Yes, sir.    Have you been sued?
18      A     -- or VSDH?
19      Q     The Grosses are suing you to recover damages,
20   right?
21      A     Right.   Me, personally, yes, sir.
22      Q     Okay.    Now I want to talk to you about the
23   whole idea of a personal guarantee in this transaction.
24   All right?   And so yesterday, in response to some
25   questions that were asked of you by Mr. Gross -- I mean
                                                               85



1    -- I'm sorry -- Mr. Aldous on behalf of Mr. and
2    Mrs. Gross, there was discussion about exhibit, Gross
3    Exhibit 1, which was a May 25th, '07, it looks like a
4    memo or a letter from Mr. Gross to Mr. Buttemiller
                                                      ,
5    right?
6       A     Yes, sir.
7       Q     And what you have here is Mr. Gross telling
8    this realtor, this broker, "Here's our proposed
9    changes." And he says, "In addition to the corrected
10   copy, please insert the following."   All right?   And it
11   says, "Where I have marked A, insert, 'When completing
12   the improvements, buyer will review with seller the
13   plans and specifications and receive general consent,
14   consent not to be unreasonably withheld to proceed with
15   the improvements.'"   Did I read that right?
16      A     Yes, sir.
17      Q     And it says, "Seller understands that buyer has
18   the right to make minor changes and decisions during the
19   process of completing the improvements provided they are
20   in the best interest of completing the improvements in
21   the most logical and reasonable manner." Did I read that
22   right?
23      A     Yes, sir.
24      Q     All right.   Now I want to look at -- and this
25   is language that Mr. Gross wrote and asked
                                                               86



1    Mr. Buttemiller to insert into the contract, right?
2       A     Yes, sir.
3       Q     All right.   Now, what I wanted to do is I want
4    to look at the language on that topic that actually got
5    into the contract.    And this is Paragraph 2, entitled
6    buyer improvements.   All right.   And it be starts off by
7    saying, "Before commencing construction, buyer will
8    review with seller the plans and specifications and
9    receive general consent, consent not to be unreasonably
10   withheld to proceed with improvements."   Did I read that
11   right?
12      A     Yes, sir.
13      Q     So what Mr. Gross had proposed was when he was
14   doing it and he was completing it, he will review with
15   the seller the plans and specifications and receive
16   general consent, right?
17      A     Yes, sir.
18      Q     But what the Grosses agreed to in the contract
19   was to review with the seller the plans and
20   specifications and receive general consent to proceed
21   with the improvements before commencing construction,
22   right?
23      A     Yes, sir.
24      Q     And I believe you've testified ad nauseam at
25   this point that before commencing construction, the
                                                             87



1    buyer did not review with the seller the plans and
2    specifications or receive general consent, right?
3                   MR. ALDOUS: Objection, Your Honor,
4    leading.
5                   THE COURT: Sustained.
6       Q       (By Mr. Chaiken) Well, before commencing
7    construction, did the Grosses review with the seller the
8    plans and specifications and receive general consent
9    before commencing that construction?
10      A       They did not.
11      Q       Okay.   Now, Mr. Gross also told Mr. Buttemiller
12   via his May 25th, '07 message, "We would like to suggest
13   a new addendum Number 4 that reads" -- and then we see
14   what it says there, right?
15                  It says, "Doug Hickok and Van Shaw, as
16   partners in VSDH Vaquero Venture, Ltd., each hereby
17   agree to personally guarantee seller's obligations under
18   the buyback option granted by VSDH to buyer hereunder."
19   And we can read the rest of it.
20                  Now that language was suggested by
21   Mr. Gross to Mr. Buttemiller, right?
22      A       Correct.
23      Q       It wasn't suggested by a lawyer acting for
24   Mr. Gross, right?
25                  MR. ALDOUS: Let me object, Your Honor.
                                                               88



1    He's not demonstrated personal knowledge of that.
2       Q    (By Mr. Chaiken) Let me ask him. Do you have
3    personal knowledge of whether a lawyer ever recommended
4    that letter -- that language to Mr. Buttemiller?
5       A    I do not.
6       Q    All right.     Now I want to talk to you about
7    your -- your impression and your perception of what
8    happened after -- well, let me ask you this question.
9                    How did you find out about this whole
10   proposed guarantee issue?    Who told you?
11      A    Mr. Buttemiller.
12      Q    And when Mr. Buttemiller told you that, in what
13   capacity did you understand he was acting?
14      A    He was acting as agent for the Grosses.
15      Q    Okay.     And did he call you and talk to you
16   about a guarantee idea?
17      A    He did call me.     Yes, sir.
18      Q    All right.     And tell me and tell the jury what
19   that conversation was like to the best of your
20   recollection.
21      A    Well, to give you the full background, there
22   was originally --
23                   MR. ALDOUS: Your Honor, I would object.
24   That's hearsay.
25                   MR. CHAIKEN: Your Honor, it's an
                                                              89



1    exception under 803.1 or 3, and it's also not hearsay
2    under 801(E)(2)(C) Or (D) because it is a statement of a
3    person authorized by the party for making statements or
4    by an agent concerning the subject matter in the scope
5    of the agency.
6                 THE COURT: Overruled.
7                 MR. ALDOUS: Well, Your Honor, he hasn't
8    established what the scope of the agency is, other than
9    to say that he is a real estate agent.   And I believe
10   that this real estate agent was agent for both parties.
11                THE COURT: That's the testimony thus far.
12   So you'll need to lay a foundation before you can go
13   into that issue more specifically.
14      Q    (By Mr. Chaiken) When Mr. Buttemiller called
15   you to talk about a guarantee issue, okay, who did you
16   understand he was acting for in communicating with you?
17      A    He was acting for the Grosses.
18      Q    And did you understand that communication to be
19   within the scope of his agency for the Grosses?
20      A    Sure.
21      Q    Okay.    Was there any doubt in your mind that he
22   was authorized to speak about the subject matter of a
23   guarantee on behalf of the Grosses with you?
24      A    I thought for sure he was authorized to do so.
25      Q    So tell us what he told you.
                                                                  90



1          A      Well, there was originally a different Addendum
2    A that didn't have this language in there about a
3    guarantee, and so this came to me as a surprise.       He
4    called me on the phone and asked me would you and Van be
5    willing to guarantee this -- this buyback.      And my
6    response was real simple. Okay.      I didn't have a problem
7    with the concept of guaranteeing it, but I certainly
8    couldn't speak for Mr. Shaw.      So, therefore, I had to
9    get Mr. Shaw's approval.
10                     And I also had to look at what the
11   guarantee said.      I wanted to see what the guarantee
12   agreement said.      So I asked him for those two things;
13   one, to get a copy of the guarantee agreement and, two,
14   I needed to talk to Mr. Shaw before I could really
15   respond.
16         Q      And when you say that you told him you needed
17   to see a copy of the guarantee agreement, were you
18   referring to a particular type of document?
19         A      A guarantee agreement is what I was referring
20   to.       It's actually a document that shows what -- it
21   literally may be two, three, five pages long that says
22   here's what you're guaranteeing. Here's all the, you
23   know, covenants and everything of the guarantee.
24         Q      And would it be an agreement that was set up
25   for signature by whoever the guarantor
                                          or guarantors
                                                               91



1    were?
2       A    Absolutely.
3       Q    Okay.     So you had asked him to provide you a
4    proposed guarantee in that format, one that set out who
5    the guarantors were, what the scope of the guarantees
6    were and had signatures that you were being asked to
7    sign; is that right?
8       A    Yes, sir.
9       Q    And that Mr. Shaw was going to be asked to
10   sign, right?
11      A    Yes, sir.
12      Q    And you communicated to Mr. Buttemiller what
13   about Mr. Shaw?
14      A    That I communicated -- I'm not sure what your
15   question is.
16      Q    You said you told him that you had to run it by
17   Mr. Shaw; is that right?
18      A    Yes.    I can't speak on behalf of Mr. Shaw.
19      Q    Okay.     And did you ever get a proposed
20   guarantee form of the nature you just described from
21   Mr. Buttemiller
                   ?
22      A    No, I didn't.    I'm not sure that this
23   conversation didn't happen a few days -- I don't know
24   when exactly it happened. It happened evidently
25   sometime between the date of this memo and the date we
                                                                 92



1    signed the contract and put it in the title company.
2       Q       Did Mr. Buttemiller tell you that he'd get you
3    the guarantee form so that you could run it by
4    Mr. Shaw?
5       A       He told me he would, absolutely.   I would get a
6    guarantee form.
7       Q       Okay.   And did he ever -- did anybody else --
8    excuse me -- on behalf of the Grosses ever provide you
9    with a guarantee form that they wanted you and/or
10   Mr. Shaw to sign as guarantors?
11      A       I didn't get one from Mr. Buttemiller, I didn't
12   get one from Mr. Gross, and I didn't get one from
13   the Grosses' lawyer.
14      Q       Okay. And is that effectively where the
15   conversation about guarantees ended?
16      A       There was not another word said about a
17   guarantee.
18      Q       Okay.   And when you got to the closing, did
19   anybody have a guarantee form there for you or Mr. Shaw
20   to sign?
21      A       As I said earlier, I'm not sure if I did or
22   didn't sign a guarantee at closing because there was a
23   stack of documents like this.     I don't rememberuntil I
24   went back preparing -- well, back when we got into the
25   dispute with the Grosses and we looked through all the
                                                               93



1    documents, I realized we didn't have a guarantee.
2       Q    So you were never given a guarantee to sign at
3    closing; is that right
                          ?
4       A    I -- no, because there's nothing in the file.
5       Q    Okay.     I want you to please look with me at
6    Gross Exhibit No. 15, which has already been admitted
7    into evidence.    This exhibit is entitled construction
8    loan agreement.    Do you see that?
9       A    Yes, sir.
10      Q    And it says at the top, the construction loan
11   -- "This construction loan agreement is made and entered
12   into on the 27th day of June by and between Kenneth
13   Gross and Betsy Gross herein after called borrower and
14   First Horizon Home Loans,a division of First Tennessee
15   Bank National Association hereinafter called lender."
16                   And it says, "Impact Health, Inc, d/b/a
17   Impact Estates, hereinafter called contractor, is
18   executing this agreement, not as a contract party hereto
19   entitled to any benefits, but for representations and
20   warranties and indemnities," andit goes on and says
21   what it says.    See that document?
22      A    Yes, sir.
23      Q    Okay.     Now, do you remember the date on which
24   the purchase and sales transaction where VSDH sold the
25   residence to the Grosses closed?
                                                               94



1       A    I thought it was on June 29th of 2007. I would
2    have to look at the --
3       Q    All right.    But it was right around the time
4    period of the date of this document, right?
5       A    Right.
6       Q    Okay.    Now, let me show you Page 3 of this
7    agreement, okay?    All right.   Now I want you to look
8    right here, Mr. Hickok, under Paragraph D(2) (H), this
9    part right here.
10      A    Yes, sir.
11      Q    Let's see if we can read this together. Do you
12   want to read it?
13      A    Sure.    It says, "Unless otherwise specifically
14   approved in writing by lender, construction on the
15   project will commence on or before 15 days from the date
16   of this agreement and borrower and/or contractor will
17   cause the construction of the project to be completed on
18   or before December 23rd, 2007, in accordance with the
19   plans and specifications approved by the lender free and
20   clear of all liens or claims from liens or for liens for
21   material, supplies and/or labor performed in connection
22   with the construction of theproject."
23      Q    Okay.    Now, did Mr. or Mrs. Gross ever tell
24   VSDH or you that they had signed an agreement with their
25   lender that required them to commence construction on
                                                            95



1    the property on or before 15 days from the date of this
2    agreement, which, as we just talked about, was June 27th
3    of 2007 and complete construction on or before December
4    23rd, 2007?
5       A    No, sir.   They did not.
6       Q    Did they tell you at any time in the
7    transaction that they had to complete that construction
8    within that time period in accordance with plans and
9    specifications approved by the lender?
10      A    No, they did not.
11      Q    Did they ever tell you why they did not
12   commence construction within -- on or before 15 days
13   from the date of their agreement with their lender that
14   required them to do so -- commence within 15 days?
15      A    No, sir, they didn't.
16      Q    Did they ever tell you why they didn't complete
17   it on or before December 23rd of 2007?
18                  MR. ALDOUS: Your Honor, I object.
19   There's no relevance to the agreement between the
20   Grosses and their bank.
21                  THE COURT: What's the relevance,
22   Mr. Chaiken?
23                  MR. CHAIKEN: Your Honor, the relevance of
24   this document is that they -- that they had obligations
25   to their lender to start and complete the construction
                                                                 96



1    in accordance with the plans and specificationsthat
2    they never delivered to VSDH.     And I want to show that
3    they had an obligation not only to have them but to have
4    them done and approved within a certain period of time.
5                     THE COURT: How is that relevant to the
6    cause before the Court?
7                     MR. CHAIKEN: Well, because they have
8    argued that they commenced constructionin accordance
9    with the -- with approval at a visit that occurred much
10   later.
11                    THE COURT: I'm going to sustain the
12   objection.   Do you have any further questions?
13                    MR. CHAIKEN: I do, Judge.   I was just
14   looking for my next exhibit here.     I'm sorry, Judge.
15   I'll move rapidly here.
16      Q      (By Mr. Chaiken) I want to talk to you
17   briefly, Doug, about the buyback option in a second
18   here.    You've given some testimony -- well, let me ask
19   you.    You were asked by Mr. Aldous whether VSDH intended
20   to buy back the property as of May of 2009 when the
21   Grosses sent a letter saying they wanted you to buy it
22   or VSDH to buy it back.     You recall that testimony?
23      A      Yes.
24      Q      Okay.    Now I believe you've testified that at
25   that point in time, VSDH had a question about whether or
                                                             97



1    not it was obligated to buy the property back under the
2    buyback option.    Was that your testimony?
3       A    Yes, sir.
4       Q    Okay.     And what was VSDH doing about the
5    buyback option, other than you telling Mr. Shaw to
6    handle it, during the period of time from the May 1st
7    declaration date and the September 1st, 2009 buyback
8    date?
9       A    You have to rephrase that question for me.
10      Q    Yeah.     Was VSDH Vaquero Venture, Ltd., thinking
11   about whether to proceed to buy the property back on
12   September 1st, 2009, notwithstanding the fact that the
13   Grosses -- or that VSDH believed that the Grosses
14   already had breached the contract?
15      A    Yes.
16      Q    Okay.     And you had -- I believe you said
17   earlier you had the option to do so if you wanted to; is
18   that right?
19      A    Yes, sir.
20      Q    When did you, Doug Hickok, ever communicate to
21   the Grosses or to anybody else that VSDH was not going
22   to perform the buyback obligation on -- I'm sorry -- the
23   buyback on September 1st, 2009, the buyback date?
24      A    There was never any communication from VSDH,
25   Doug Hickok, to -- that basically said we were not going
                                                             98



1    to perform the buyback.
2       A    Now, you've read this addendum A, the buyback
3    option, while you've been sitting on the stand for the
4    past day and a half now, correct?
5       A    Yes, sir.
6       Q    Can you point to me where in that buyback
7    obligation -- or the buyback option language -- excuse
8    me -- there is any obligation on the part of VSDH to
9    tell the Grosses, yes, we're going to do it, no, we're
10   not going to do it on September 1st 2009 after they sent
11   their declaration date notice?
12      A    It doesn't exist.
13      Q    So there was no obligation in the contract for
14   VSDH to tell the Grosses, yes, we're going to do it, no,
15   we're not going do it; is that right?
16      A    That's correct.
17      Q    All right.   Were you and Mr. Shaw receiving
18   lots of emails from the Grosses shortly after the
19   declaration date of May 1st, 2009, pressing you to find
20   out whether you're going to do it, meaning VSDH was
21   going to do it or not going to do it?
22      A    Yes.   I believe Mr. Shaw handled most of those.
23   I've been revisiting them today in court.
24      Q    And in the June to July timeframe, were the
25   Grosses telling you that if you didn't do it and you
                                                            99



1    didn't tell them you were going to do it, they were
2    going to go the legal route?
3       A    I absolutely saw that in one of their emails to
4    us that they were going to -- which meant, to me,
5    they're going to sue us.
6       Q    Did you see any emails written by Mr. and
7    Mrs. Gross and sent to you and Mr. Shaw before the
8    September 1st, 2009 date that were copied to people that
9    you knew or understood were lawyers other than Mr. Shaw?
10                 MR. ALDOUS: Your Honor, I would invoke
11   the best evidence rule, saying that if he's going to
12   testify about the contents of the document, he needs to
13   produce the document.
14                 THE COURT: Sustained.
15      Q    (By Mr. Chaiken) At any time prior to September
16   1st, 2009, did you on behalf of VSDH feel as if the
17   Grosses were threatening you with litigation if you did
18   not commit to the buyback option and to buying the
19   property back?
20      A    I think that was the underlying theme,
21   absolutely.
22      Q    Did you personally feel as though Mr. and
23   Mrs. Gross were threatening you personally with
24   litigation or a lawsuit if you didn't say you personally
25   would buy it back if VSDH did not?
                                                               100



1       A       Again, I believe that was the underlying tone.
2       Q       Did you appreciate those -- that tone or those
3    threats?
4                   MR. ALDOUS: Your Honor, I object.    That's
5    irrelevant.
6                   THE COURT: Sustained.
7                   MR. CHAIKEN: Your Honor, I will reserve
8    the rest of my questions for Mr. Hickok until the
9    defendants' case in chief.     Pass the witness at this
10   time.
11                  THE COURT: Mr. Aldous?
12                  MR. ALDOUS: Thank you, Your Honor.
13                  May I sit over here?
14                         REDIRECT EXAMINATION
15   BY MR. ALDOUS:
16      Q       Sir, Exhibit 15 that you refer to, the
17   construction loan agreement between the Grosses and
18   their bank, VSDH is not a party to this agreement, are
19   they?
20      A       No, sir.   That's a tri-party agreement between
21   them, their contractor, and their bank.
22      Q       And the contractor was Mr. Grosses' company,
23   Impact Estates, correct?
24      A       I'm not sure of that.
25      Q       So would it be true that the first time that
                                                               101



1    you looked at this construction loan agreement was in
2    connection with this case?
3       A       Yes, sir.
4       Q       And so this construction loan agreement that
5    your counsel brought out, Exhibit 15, had nothing to do
6    with any action you took prior to the time of this
7    lawsuit?
8       A       That's true.
9       Q       Now, you indicated that there was never a
10   communication from you, yourself, or VSDH that they were
11   not going to honor the buyback clause of the contract;
12   is that what you said, sir?
13      A       Yes, sir.
14      Q       Isn't it true that you turned over to Mr. Shaw
15   the issue relating to the buyback after May of 2009?
16      A       Yes, sir.
17      Q       Isn't it true that Mr. Shaw had authority to
18   act for you and VSDH with regard to the buyback
19   provision?
20      A       No, sir.
21      Q       So you turned the matter over to VSDH -- you
22   represented to the Grosses that you were turning this
23   matter over to Van Shaw and in reality had no authority
24   to act on behalf of VSDH?
25      A       No, sir.    That's not what you said.   You said
                                                              102



1    on my behalf and on VSDH's behalf.     He had the authority
2    to act on behalf of VSDH, not on my behalf.
3       Q      All right.   I apologize.
4       A      Okay.   Thank you.
5       Q      Would you agree with me that Van Shaw had the
6    authority to act on behalf of VSDH with regard to the
7    Grosses and the buyback after May of 2009?
8       A      Yes, sir.
9       Q      And if Mr. Shaw told the Grosses that VSDH was
10   not going to perform on the buyback, that came with the
11   authority of VSDH; do you agree with that?
12      A      I agree with that.
13      Q      All right.   Now on Exhibit 3, whatever the
14   contract is, Exhibit 3 under the tab -- the Gross
15   Exhibit 3.   You were asked some questions about
16   paragraph No. 5 and the little blurb that comes after
17   that in the addendum on Page 35.
18      A      In the addendum, okay.
19      Q      Yes, sir.    I will give you just a second to get
20   there.
21      A      You've got it up on the screen?
22      Q      I do.   Okay.   I'm going to it a little bit
23   bigger.   Oh, the other way.
24                 Now you see in there it says you were
25   asked some questions about whether you, Doug Hickok,
                                                                103



1    agreed to this particular provision that says, "In
2    addition," in Paragraph 15 in the body of the contract
3    under default, "Seller reinstates language stricken,
4    seeks such other relief as may be provided by law or
5    both," correct?
6          A      Correct.
7          Q      And you agree with me that VSDH agreed that
8    that was going to be a term of the buyback agreement?
9          A      I agree that VSDH agreed to that, but not Doug
10   Hickok.
11         Q      Well, why don't you just try to answer the
12   question I'm asking you.      The question I'm asking you
13   is:       VSDH agreed that that blurb would be a term of the
14   buyback option, right?
15         A      You're going to have to restate that for me
16   because I'm not sure what exactly you're saying.      The
17   term of the buyback option, I don't understand what
18   you're saying.
19         Q      Well, you indicated that when you initialed
20   this, that this became a term that you agreed to as part
21   of VSDH, right?
22         A      Only on behalf of VSDH.
23         Q      I don't know how I can make my question any
24   clearer, sir.      Did VSDH agree that this particular part
25   of the addendum would be a term of the buyback?
                                                                    104



1          A      Yes, sir.
2          Q      Okay.   VSDH Exhibit 6, do you have that up
3    there?
4          A      No, sir.    I just have 5.
5                      MR. CHAIKEN: It was Gross 6. It was
6    really 2.      Excuse me.    I think it's what you're
7    referring to.        I'm trying to be helpful here. Excuse my
8    interruption.
9                      MR. ALDOUS: Let me just put it on the
10   screen for you.
11         Q      (By Mr. Aldous) This has already been admitted
12   into evidence as VSDH Exhibit 6.          Do you see the new
13   home contract there?
14         A      Yes, sir.
15         Q      Do you see it has the $2,851,871 figure?
16         A      Yes, sir.
17         Q      Now you agree that later on that changed,
18   right?
19         A      Yes, sir.
20         Q      All right.   Now, if you turn to the addendum --
21   and you don't have to turn because you don't have it.           I
22   do.       Do you see here's the addendum that we've been
23   talking about?
24         A      Yes, sir.
25         Q      And you see that it's pretty much the same as
                                                              105



1    what eventually got signed off on, but there's a couple
2    of changes, right?
3       A       Yes, sir.
4       Q       For instance, Exhibit 3 Gross shows that
5    there's handwriting in there that says, "declare the
6    buyback option becomes null and void."     Do you see that
7    right there at the bottom, casualty?     Do you see --
8       A       Yes.
9       Q       -- that little interlineation
                                            ?
10      A       Yes.
11      Q       Now if you look at it here, that's also a part
12   of this.    So there was no change really to the casualty
13   portion of this, right?
14      A       Correct.
15      Q       Now, did you strike out the part that says
16   seller may, at its option, object to either declare the
17   buyback -- that portion that's struck out?
18      A       I couldn't tell you.
19      Q       Is it an appropriate way to deal with language
20   in the contract that you disagree with to strike it out
21   and make an initial?
22      A       Yes, sir.
23      Q       And that's one of the ways you let the other
24   party know you don't agree with that?
25      A       Yes.   The two parties to the contract.   Yes,
                                                            106



1    sir.
2       Q    Right.   And then if you look at Exhibit 6, VSDH
3    Exhibit 6, you see that this has virtually no
4    handwriting on it, including the portion related to the
5    escrow agreement on Paragraph 3. Do you see that?
6       A    Yes, sir.
7       Q    That changed, didn't it?
8       A    Yes, sir.
9       Q    So when you look at the one that was -- the
10   contract that actually ended up, you see that in the
11   escrow agreement somebody's taken a black magic marker
12   and marked through a whole sentence?
13      A    Yes, sir.
14      Q    Do you see that and added the language that
15   says "at closing"?
16      A    Yes, sir.
17      Q    Do you know who did that?
18      A    I do not.
19      Q    Was it one of the parties to the agreement
20   trying to tell the other party to the agreement, hey, I
21   don't agree with that?
22      A    Or it could have been the agent.
23      Q    Agent at somebody's suggestion?
24      A    Yes, sir.
25      Q    But the agent wouldn't do it without a
                                                             107



1    direction from either VSDH or the Grosses, right?
2       A     I believe so.
3       Q     The part that was stricken out, do you see the
4    part that is blacked out there?
5       A     Yes, sir.
6       Q     It's after the sentence of property.    If you
7    look at this, it says what was stricken out is a total
8    of 156,871 of these improvements have been incorporated
9    into the 2.851 sales price.   Do you see that?
10      A     Yes, sir.
11      Q     That's what you were referring to earlier,
12   right?
13      A     Yes, sir.
14                MR. ALDOUS: May I approach, Your Honor?
15                THE COURT: You may.
16                MR. ALDOUS: I forgot I don't have to
17   approach.
18      Q     (By Mr. Aldous) If you look at Exhibit 105,
19   which is already in evidence --
20      A     Okay.
21      Q     -- you see that that's an email from you to
22   John Buttemiller and Gary Sommerfelt,Hap Stern, and Van
23   Shaw, basically the VSDH side of the equation, right?
24      A     Yes, sir.
25      Q     And it's dated June 20, 2007.   Do you see it?
                                                            108



1       A    Yes, sir.
2       Q    It says, "Per your request on behalf of the
3    buyer, I have reduced the purchase price by removing the
4    amount of the escrow funds in the contract to 2,695."
5    That's exactly what you talkedabout, right?
6       A    Yes, sir.
7       Q    The buyer requested this, right?
8       A    Yes, sir.
9       Q    In addition, in Paragraph 3 of Addendum A, the
10   appropriate language was removed and inserted, "Please
11   see the attached," right?
12      A    Yes, sir.
13      Q    And you say, "Hey, look, if this looks good,
14   please sign off"?
15      A    Yes, sir.
16      Q    And that's the way it's handled, right?
17      A    Yes, sir.
18      Q    And there's nothing unusual about this?
19      A    Well, it was -- no, I don't think there was
20   anything unusual about it. No.
21      Q    When somebody suggests a change, if you agree
22   to it, you try to incorporate the change into the
23   agreement and let everybody know that the agreement has
24   now been changed?
25      A    Yes, sir.
                                                             109



1       Q    So, Mr. Hickok, this Paragraph 4 of the Exhibit
2    3, Paragraph 4, what do you call that?   I want to use
3    your language.   What do you call that paragraph?
4       A    It's a -- it's a portion of the contract
5    inserted there between VSDH and the Grosses.   It's a
6    paragraph.
7       Q    Okay.    In your mind, what is this paragraph
8    meant to accomplish?
9       A    I think it's meant to accomplish that in the
10   perfect world, I think from your standpoint, the
11   Grosses' standpoint, is to have Doug Hickok and Van Shaw
12   guarantee this. That was what the Grosses wanted to
13   have happen.
14      Q    And so you recognizethat at least the way this
15   paragraph is worded, it says that you and Van Shaw
16   personally guarantee the seller's obligations under the
17   buyback option, granted from VSDH, the seller, in the
18   event VSDH fails to perform fully under the terms of the
19   buyback, each of its partners set forth above shall be
20   personally responsible, personally responsible, right?
21      A    That's what it says.
22      Q    So you recognize that this was meant to be a
23   personal guarantee?
24      A    Well, it may have meant to be, but it can't.
25      Q    So here's my question to you.    I think the jury
                                                               110



1    wants to know.    Why didn't you just black through that?
2       A       Well, probably because it -- this was already
3    in the title company.    It's not -- I don't have a copy
4    of the contract.
5       Q       Well, before when it was -- originally came in,
6    you said it was suggested to and put in there by
7    Mr. Buttemiller. You were expecting another document.
8    You didn't get it,but why didn't you just strike
9    through that and say it didn'twork?
10      A       Well, I didn't get the document.   If you would
11   have delivered -- if they would have delivered me a
12   guarantee agreement with this in the title company, we
13   could have then looked at signing the guarantee
14   agreement. We never got that. My intent -- okay.
15      Q       Let me just make sure.   I want to make sure
16   what you're telling me. Now, you're not a lawyer,
17   correct?
18      A       No, sir.
19      Q       And you have -- you don't have the ability to
20   testify to what the legal ramifications of a document
21   are, correct?
22      A       No, sir.
23      Q       You agree with what I said?
24      A       Yes, sir.
25      Q       We had a double negative.
                                                              111



1          A   Yeah.
2          Q   So, although you recognize that this was a --
3    this Paragraph 4 was a purported personal guarantee, you
4    did not strike through it in any form or fashion?
5          A   Correct.
6          Q   All right.   Now you indicated in your testimony
7    that -- and I wrote these down.    And if I say it wrong,
8    would you let me know?
9          A   Okay.
10         Q   I wrote down that you said the written terms of
11   the contract are most important?
12         A   Yes, sir.
13         Q   That everything in a contract is important and
14   that's why you read it?
15         A   Yes, sir.
16         Q   So -- and, in fact, you said, I believe, the
17   reason that you initialed all these pages is so that you
18   don't get slip sheeted?
19         A   Correct.
20         Q   Now, to me slip sheeted, that's kind of like a
21   term of art, right?    That means somebody slipped a sheet
22   in and tried to get some extra terms that weren't agreed
23   to?
24         A   Well said.
25         Q   And that's why you initial every one of these
                                                             112



1    pages?
2       A     Correct.
3       Q     And when you initialed this page, Addendum 4
4    right there and you put the line underneath it --
5       A     Yes, sir.
6       Q     -- you put your initials and you didn't
7    indicate one way or the other whether or not that was
8    for VSDH or for you personally.   Agreed?
9       A     Well, it could only have been for VSDH.
10   They're the only party to this contract.
11                   MR. ALDOUS: Objection, nonresponsive,
12   Your Honor.
13                   THE COURT: Sustained.
14      Q     (By Mr. Aldous) Let me just ask you again.     On
15   this page where your initial is, it doesn't say Doug
16   Hickok personally; it doesn't say Doug Hickok as
17   representative of VSDH?
18      A     Correct.
19      Q     Now you indicated that -- I asked you this
20   question before only with respect to Exhibit 59.    And
21   it's dated August 18, 2009.   This is the one where the
22   Grosses got a contract, they're willing to sell it, they
23   reach out to you and say, "Hey, one more time, let us
24   know."   And I think you said, "I didn't respond to
25   this," right?
                                                              113



1       A    I don't believe I did.
2       Q    Right.   And we talked about the fact that you
3    guys had already sued the Grosses.    Do you recall that?
4       A    I don't rememberthe exact date, maybe.
5       Q    July 7, 2009.
6       A    Okay.    I'll take your word for it.
7       Q    Okay.    Here's my question for you.   Had you
8    guys at VSDH gone out and gotten like a loan approval or
9    something to buy back the home so that you could do it
10   by September 1st as of August 18th?
11      A    Didn't get a loan approval, no.
12      Q    Did you ever on behalf of VSDH seek to get a
13   loan approval to buy this house back?
14      A    No, sir.
15      Q    You had some testimony about how important it
16   was to you that the addition, to the extent that it
17   happened, that you made sure that it didn't have purple
18   walls and things like that.   Do you recall that?
19      A    I do.
20      Q    And that that's one of the reasons that you
21   wanted to make sure that you had some approval and that
22   sort of thing, right?
23      A    Correct.
24      Q    Now I showed you earlier where when the Grosses
25   -- the Grosses got done with the addition, they sent you
                                                             114



1    a thing and said, "Hey, come on out and take a look."
2    If it was so important to you what the -- and you didn't
3    know what the addition was going to look like, wouldn't
4    you want to go see, see what they built to see whether
5    or not it matches up with the rest of the house?
6       A    When it was all finished?
7       Q    Yes, sir.
8       A    The answer to the question is, yes, except for
9    the fact that they had already violated the agreement.
10      Q    But I thought you toldus that it was still
11   your option and if you guys wanted to, you could buy
12   this house back?
13      A    Sure, we could.     We had until September 1 to go
14   look at those improvements if we chose to.
15      Q    So you didn't go look at them and you really
16   were willing to buy it back, but you had no idea what
17   the addition looked like?
18      A    Had not -- I was more concerned about the
19   estimated prices outlined in the Grosses' emails to us
20   as -- I think this came up in our discussion was, wow,
21   did this house get devalued because of the improvements?
22                MR. ALDOUS: Objection, Your Honor,
23   nonresponsive.
24                THE COURT: Sustained.
25      Q    (By Mr. Aldous) Mr. Hickok, do you recall in
                                                             115



1    2008 that the United States experienced somewhat of a
2    financial downturn?
3       A     Sure.
4       Q     Did you in the real estate business experience
5    a downturn?
6       A     Some forms and fashions, yes; others, no.
7       Q     Do you think maybe that the drop in value of
8    the real estate prices had anything to do with the
9    economy going down?
10      A     Again, that's a pretty general statement.
11      Q     I'm asking for a general answer.
12      A     Well, I think in specific locations, no, and
13   other locations, yes.
14      Q     But at the end of the day, despite the
15   invitation to go take a look at this addition, you
16   didn't take it, right?
17      A     No, sir, we did not.
18                  MR. ALDOUS: I'll pass the witness
                                                    , Your
19   Honor.
20                  THE COURT: Mr. Shaw?
21                  MR. SHAW: Thank you.
22                      RECROSS EXAMINATION
23   BY MR. SHAW:
24      Q     There was some talk about -- this is out of
25   VSDH Exhibit 6, the addendum -- some talk about Section
                                                                116



1    4 and well, why didn't you strike it?      Were you opposed
2    to Section 4 at the time you signed this contract?
3          A      No.
4          Q      Was VSDH opposed to this at the time it signed
5    the contract?
6          A      No.
7          Q      You had, as I understand it, two things you
8    wanted.      You wanted to see the personal guarantee
9    agreement; is that right?
10         A      Yes, sir.
11         Q      And you wanted my agreement to personally
12   guarantee?
13         A      Yes, sir.
14         Q      You wanted me to sign something and you wanted
15   to see the terms?
16         A      Yes, sir.
17         Q      And you to sign something?
18         A      Yes, sir.
19         Q      All right.   Those three things and you never
20   got that document?
21         A      No, sir.
22         Q      All right. Now, I have been a lawyer many years
23   and you've been --
24                      MR. ALDOUS: I feel an objection coming
25   on.       I just thought I would stand up right now.
                                                            117



1                  THE COURT: I think you ought to rephrase
2    that question, Mr. Shaw.
3                  MR. SHAW: All right.
4       Q    (By Mr. Shaw) You didn't get a loan on this
5    house in 2009, fair?    You didn't get a loan?
6       A    I didn't get one.    No.   I didn't get one.
7       Q    All right.     Did you have an understanding that
8    I had the financial ability to close on this home
9    without a loan?
10      A    Yes, sir.
11      Q    So I could have bought it without a loan --
12      A    Yes, sir.
13      Q    -- is what you understood?
14                 MR. SHAW: Okay. Pass the witness.
15                 THE COURT: Mr. Chaiken?
16                 MR. CHAIKEN: Yeah, I've just got a couple
17   of clarifications.
18                        CROSS-EXAMINATION
19   BY MR. CHAIKEN:
20      Q    Mr. Aldous a few minutes ago stated in the
21   beginning of a question to you something along the lines
22   of VSDH was willing to buy it back, but wouldn't go out
23   there and look at it in response to the Grosses'
24   invitation.   You recall that?
25      A    Yes, sir.
                                                             118



1       Q      Prior to September 1st of 2009, had VSDH
2    decided whether it was willing to buy the property back
3    or not?
4       A      It had not decided.
5       Q      Did it still have time left up until September
6    1st, 2009, to make that decision?
7       A      Yes, sir.
8       Q      To make the decision as to whether Mr. Shaw
9    would put up the money, that was the buyback price or
10   some other price that may have been part of what the
11   Grosses were discussing with you-all as a possible way
12   to resolve the buyback issue?
13      A      Yes, sir.
14      Q      And were you considering -- when I say "you",
15   VSDH -- was VSDH considering alternatives that the
16   Grosses were proposing in order to accelerate this whole
17   buyback concept?
18      A      Yes, sir.
19      Q      But no agreement was ever reached, right?
20      A      No, sir.
21      Q      Now why did VSDH sue the Grosses in July of
22   2009?
23                 MR. ALDOUS: Well, Your Honor, I object to
24   that because he indicated he had no personal knowledge
25   of it.
                                                               119



1                    THE COURT: Sustained.
2                    MR. CHAIKEN: I'll address that later with
3    Mr. Shaw.
4       Q    (By Mr. Chaiken) Last thing I want to talk to
5    you about, and I would make this brief, is Exhibit
6    No. 24, which is the October 18th, 2008 letter from
7    Mr. Gross to you.    Okay?   And, specifically, the
8    language that says I am beginning construction of the
9    addition and wanted to show you the plans for approval.
10   And it says if you give me an address, I'll be happy to
11   send them to you for your review, right?
12      A    Yes, sir.
13      Q    And yesterday, Mr. Aldous said in forming a
14   question to you, "I've never seen a document that gave
15   the Grosses an address"; do you remember that
16   conversation?
17      A    I do remember that.
18      Q    And then he said, W
                               "ell, when did they get a
19   document that had the address?"    Remember all that?
20      A    Yes, sir.
21      Q    Okay.     Now, I want you to look at -- this is
22   from Exhibit No. 3, and it is the contract right here.
23   And it says, "All notices from one party to the other
24   must be in writing and are effective when mailed to,
25   hand-delivered, or transmitted facsimile or electronic
                                                               120



1    transmission as follows to seller."     And then you've
2    already talked about this with Mr. Shaw.    But there's an
3    address, right?
4       A     Yes, sir.
5       Q     And that was the address for the seller, VSDH,
6    in the contract, right?
7       A     Correct.
8       Q     It's an address that never changed, right?
9       A     No, sir.
10      Q     And that Mr. Gross was aware of when he and his
11   wife signed this contract with that address in it,
12   right?
13      A     Correct.
14      Q     All right. So he didn't need you to give him
15   an address; he already knew where to send it, right?
16      A     Correct.
17      Q     All right.    Now, when Mr. Gross said in his
18   letter, "I am beginning construction of the addition,"
19   did you come to find out that that statement was not
20   true?
21      A     I did.    I mean, when I read this, I -- I was
22   under the impression they were thinking about beginning
23   construction.     And I found out they were well along with
24   construction when I went out there.
25      Q     So the correct statement in here would have
                                                             121



1    been, "I've begun construction and wanted to show you
2    the plans for approval," correct?
3       A     Correct.
4                   MR. CHAIKEN: Now I will reserve the
5    balance of my questions until the -- of Mr. Hickok until
6    the defendants' case in chief if necessary. Thank you,
7    Judge.
8                   THE COURT: So this is your second
9    reservation?
10                  MR. CHAIKEN: Well, it is.
11                  THE COURT: Mr. Aldous?
12                  MR. ALDOUS: Thank you, Your Honor.
13                  FURTHER REDIRECT EXAMINATION
14   BY MR. ALDOUS:
15      Q     Mr. Hickok, you just said that the October 16,
16   2008, that the Grosses must have started construction,
17   but you didn't even go out there until weeks later,
18   right?
19      A     Of course.   But when I went out there, they
20   were well along with construction.
21      Q     Well along and you -- but you can't tell us
22   when you went out there, so you don't know what had
23   happened on 10-16, do you?
24      A     I can actually say on 10-16 from my
25   professional opinion that they were at least two months
                                                              122



1    or more along with construction and probably a six-month
2    construction period.
3       Q    Did it take you two months to show up out there
4    to take a look?
5       A    I don't think so.
6       Q    You don't think so?
7       A    No, sir, I don't.
8       Q    Are you sure maybe that it's just you're not
9    speculating on that?
10      A    I think I would have received another email
11   from the Grosses wanting me out there tomorrow or the
12   next day.    They would have kept on trying to email me to
13   get me out there.
14                   MR. ALDOUS: Okay. I'll pass the witness.
15                   THE COURT: Mr. Shaw?
16                   MR. SHAW: Nothing further. Thank you.
17                   THE COURT: Mr. Chaiken?
18                   MR. CHAIKEN: Same reservation, Judge.
19   Thank you.
20                   THE COURT: All right.   Are there any
21   questions from the jury?     Anybody write down any
22   questions for this witness?
23                   All right.   We will take a recess until
24   3:00 o'clock.    During this recess, the jury is under the
25   same instructions you've been previously given.       You're
                                                              123



1    not to discuss this case among yourselves or with anyone
2    else until such time as this case has been submitted to
3    you for your deliberation or you have been discharged as
4    jurors.
5                  All rise.   The jury is excused.
6                  (Jury exits the courtroom)
7                  THE COURT: You may step down.
8                  We stand in recess.
9                  (Recess taken)
10                 THE COURT: All rise.
11                 (Jury enters the courtroom)
12                 THE COURT: You may be seated.
13                 You may call your next witness,
14   Mr. Aldous.
15                 MR. ALDOUS: Your Honor, we would call Ken
16   Gross.
17                 THE COURT: Raise your right hand, please.
18                 (Witness sworn)
19                         KENNETH GROSS,
20   having been first duly sworn, testified as follows:
21                       DIRECT EXAMINATION
22   BY MR. ALDOUS:
23      Q      First of all, Ken, don't lean back so far in
24   that chair because it will eject you right out the back.
25                 State your name please.
                                                          124



1       A    Ken Gross.
2       Q    Ken, so you've been sitting in here in the
3    courtroom.   I guess you're the Ken Gross that everybody
4    has been talking about, right?
5       A    Yes, sir.
6       Q    So tell me, are you married?
7       A    Yes, sir.
8       Q    Is this your wife right here?
9       A    Yes, sir.
10      Q    Is that Betsy?
11      A    Yes, sir.
12      Q    How long have you guys been married?
13      A    Twenty-seven years.
14      Q    I shouldn't have put you on the spot.   Sorry.
15      A    Twenty-seven years.
16      Q    So do you have any kids?
17      A    Yes, sir.
18      Q    Tell me about it.
19      A    A daughter, Alison.
20      Q    And then do you have some other daughters from
21   your previous marriage?
22      A    Yes, two.
23      Q    And where do they live?
24      A    They live in Indiana.
25      Q    Is that where you're originally from?
                                                            125



1       A     Yes, sir.
2       Q     So tell me about your work history.
3       A     I started out in the medical industry in
4    pharmaceutical sales and then moved up into sales
5    management, and then about ten years ago, I moved into
6    the building industry.
7       Q     How did you get started in that?
8       A     Lightening had hit our house and we had a house
9    fire and it was a significant fire.   And I couldn't find
10   anybody to rebuild the house, so I ended up doing it
11   myself and then just sort of started from there.
12      Q     What type of work does Betsy do?
13      A     She's in medical sales as well.
14                 MR. ALDOUS: Your Honor, is it okay if I
15   get him some water?
16                 THE COURT: You may.
17      Q     (By Mr. Aldous) So you're kind of asoft-spoken
18   guy.   You're going to have to speak up and make sure you
19   speak up loud -- loud enough for everybody to hear.
20   Will you do that for me?
21      A     Yes, sir.
22      Q     I'd like to take you back to 2007 and please
23   tell us how it is that you began looking in Vaquero and
24   why.
25      A     My wife and I had looked around at
                                                                126



1    opportunities to grow the business and were looking at
2    developments where we could build a spec home and
3    showcase our work as part of my career.     And the
4    Westlake development was appealing because it was just
5    in the initial phases of development.
6       Q       And when you say, "our business," what are you
7    referring to?
8       A       My building business.
9       Q       What is it called?
10      A       Impact Estates.
11      Q       And when you were going and looking in this
12   area, did you have an idea of where you might want to
13   build a model home?
14      A       Yes.   We found a lot in the development in 2005
15   and purchased that lot, and then it subsequently
16   flooded.    We were unaware that it had a flooding
17   problem.    And in 2007 when we had real heavy rains, the
18   property flooded.
19      Q       And when you say, "the development," what are
20   you referring to?
21      A       Vaquero.
22      Q       So at some point in time, did you identify this
23   house, that is the one on White Wing Cove, as a
24   potential?
25      A       Yes, sir.   When the one property flooded, we
                                                            127



1    realized that we weren't going to be able to build on
2    it, so we were looking for a home that we could move
3    into for an approximate two-year period of time while we
4    found another lot and then built a home of our own to
5    move into.
6       Q    So how did it all come about where you
7    identified this house and you decided that you would do
8    some kind of deal on it?
9       A    Having bought the lot, I was fairly familiar
10   with the development, and I saw these two homes from
11   actually when they were under construction.   And then
12   they were finished and sat vacant for, I think, over two
13   years and realized that these homes weren't selling for
14   a reason.    And the one home that we ended up purchasing
15   in particular did not have a guest room downstairs and
16   it did not have an elevator.   So for a home in this
17   price range to have an elderly parent or somebody have
18   to navigate stairs and not have a guest room downstairs,
19   I felt was probably one of the reasons why the home
20   wasn't selling.
21      Q    And in terms of being able to sell in this type
22   of area -- I mean, price range, did you believe that it
23   had to have that feature?
24      A    Yes, sir.    It was that and also at that time a
25   lot of media rooms were very popular, and this home
                                                              128



1    didn't have a media room either.
2          Q   Now, were you familiar with the Vaquero sales
3    people that were out there who -- the real estate agent
4    that was part of Vaquero?
5          A   Yes, sir.
6          Q   And how did you become familiar with him?
7          A   Well, there was one gentleman who transacted
8    the sale of the lot that flooded and he subsequently
9    left and then Mr. Buttemiller, who was referred to
10   earlier, replaced him.   And he was the one --
11   Mr. Buttemiller was the person that I contacted about
12   purchasing the home on White Wing.
13         Q   So tell us -- take us through how it happened
14   that you actually got into the home and started making
15   the proposal.
16         A   Well, originally, we were thinking about
17   renting, but I thought that possibly there might be an
18   objection to rentinga home of that price range.       So I
19   wondered if there would be an opportunity to buy the
20   home, take it off their hands for a couple of years, and
21   then buy it back from us, helping them and also helping
22   us.
23         Q   How were you helping them?
24         A   Well, they wouldn't have had anymore carrying
25   interest.   I believe they mentioned earlier that they
                                                               129



1    were paying for the carrying interest on a couple
2    million dollar loan.
3       Q    And what about the addition?
4       A    Well, the addition I felt was something that
5    was needed in order to sell the home.   That's why I
6    thought it hadn't sold.   So my proposal was that I would
7    put on a guest room, an outdoor guest room, like casita
8    I think they're called, and a pool bath, and then above
9    that a media room.
10                  MR. ALDOUS: May I approach, Your Honor?
11                  THE COURT: You may.
12      Q    (By Mr. Aldous) Let me show you what's been
13   marked as Exhibit 125.    And before saying what it is,
14   just say do you recognize this?
15      A    Yes.
16      Q    Thank you.
17                  MR. ALDOUS: Your Honor, would you like to
18   look at it before I give it to them?
19                  THE COURT: Show it to them first.
20                  You may approach.
21      Q    (By Mr. Aldous) Mr. Gross, is Exhibit 125 --
22   could you tell us what it is?
23      A    Those are the plans for the improvements on
24   White Wing Cove,the home that is in discussion.
25      Q    Are these the plans that you had created?
                                                             130



1       A    Yes, sir.
2                   MR. ALDOUS: Your Honor, we move to admit
3    Exhibit 125.
4                   THE COURT: Any objection?
5                   MR. CHAIKEN: Objection, failure to
6    properly authenticate under 901.   The instrument
7    purports to be prepared by somebody else.     It would also
8    constitute hearsay and have hearsay within hearsay.
9                   THE COURT: Response, Mr. Aldous?
10                  MR. ALDOUS: Well, Your Honor, I don't
11   know how to respond to say that it's hearsay.      I'm not
12   saying that it speaks for the matter -- for the truth
13   other than they just are plans.    And he authenticated
14   them as the plans he received.
15                  THE COURT: Overruled.
16                  Does that have an exhibit number?
17                  MR. ALDOUS: 125, Your Honor.
18                  THE COURT: Exhibit 125 is admitted.
19      Q    (By Mr. Aldous) Now, Ken, these are not the
20   easiest things to haul around, but there is one part of
21   it that I want to look at, which is on the first page.
22   And I'll have to really back up on this.    All right. Do
23   you see the part of -- the first page of Exhibit 125
24   shows a plot plan.
25      A    Yes, sir.
                                                              131



1          Q   Can you tell us what that is?
2          A   That's the existing home and the garage and the
3    proposed remodel on the top.
4          Q   Now, the garage, is the garage this area that
5    I'm pointing to with my finger?
6          A   Yes, sir.
7                     THE COURT: Mr. Aldous?
8                     MR. ALDOUS: I apologize.   I'm sorry.
9    It's kind of hard because the paper keeps rolling up on
10   me.
11         Q   (By Mr. Aldous) The existing home is exactly
12   what it means.     That's where the house was?
13         A   Yes.
14         Q   And the proposed remodel, is that the casita
15   type bedroom, pool bath that you're referring to?
16         A   Yes.
17         Q   Over here on this side, on the left-hand side
18   of the home, what was over here?
19         A   Master bedroom.
20                    THE COURT: Excuse me just a minute,
21   Mr. Aldous.
22                    For those of you seated in 3 through -- 4
23   through 6, if you think you could see better in the back
24   row, you're free to move back there.
25                    You may proceed.
                                                                132



1                      MR. ALDOUS: Thank you, Your Honor.
2       Q       (By Mr. Aldous) So, Ken, why wouldn't you put
3    the proposed remodel on the left-hand side of the home
4    over here?
5       A       Well, the left side was the master bedroom, so
6    you really wouldn't put a guest bedroom off the master
7    bedroom.
8       Q       Just from your standpoint as the builder, is
9    there any -- in your opinion
                                , would any builder put an
10   addition with a guest room off the master bedroom?
11      A       No.
12      Q       On this side of the home over here where the
13   proposed remodel was, what was over there?
14      A       The kitchen was behind the garage, and the
15   laundry room was behind the kitchen.     So where you see
16   the proposed remodel, to the left of that is a covered
17   porch.   Right underneath that porch, as we look at the
18   picture, was where the laundry room was.
19      Q       And then what was above the garage?
20      A       Above the garage was a game room that had a
21   sloped ceiling. It was just an open room that they were
22   calling a game room.
23      Q       Now when you were suggesting the proposed
24   remodel, were you extending the game room?
25      A       Yes.    It was really a great set up for this
                                                               133



1    addition.    And the casita, as they're called, or guest
2    bedroom, was perfect in that it offered a lot of
3    privacy.    It was somewhat imperfect, you could say,
4    because you had to go outside to get to it.     But some
5    people really like that.     So pros and cons there.   And
6    the pool bath was right off the covered area that I just
7    mentioned earlier.      So you had a pool bath and a guest
8    bath that could be used for privacy.     And then above it
9    with the game room being where it was located, it was
10   just a natural to have the media room off the game room.
11      Q       Was this area right here where the pool was?
12      A       Yes, sir.
13      Q       All right.
14                  MR. ALDOUS: Your Honor, may I approach
15   the witness?
16                  THE COURT: You may.
17      Q       (By Mr. Aldous) These sheets, that is the
18   following sheets, are a little bit bigger. And I'd like
19   for you to hold that end of it and see if you can
20   describe for us what is shown on this page.     That is the
21   second page of Exhibit 125.
22      A       This is the upstairs.   These are the stairs
23   going up.    This was the existing game room that I
24   referred to and the exiting roof.     And then this is
25   where the media room was located upstairs, and then
                                                             134



1    below that was the guest bedroom.
2       Q    And what is shown over here on the right?
3       A    That is basically the foundation or slab area.
4       Q    All right. So you had to actually add some
5    foundation?
6       A    Yes, sir.
7       Q    Now the third page, which refers to
8    manufacturing specifications and so forth, can you
9    explain to us what this shows?
10      A    Yes, sir.     This is the existing utility room I
11   spoke about, but then I was going outside of the home.
12   You have a covered porch, a nice double door, a large
13   guest bedroom or office or whatever it would be used for
14   in the future, pool bath, shower, wet bar, and a huge
15   walk-in closet.   It also had its own foyer entry so if
16   it were used as a teenage room or an in-law suite or
17   something, they would have their own private access to
18   the area and not interrupt.
19      Q    Now the next page, what does that show?
20      A    That shows the media room.    This was the
21   existing game room, so I came up with a plan to add an
22   additional bathroom up there because I felt that it
23   probably needed it.    If you had this type of set up
24   again in this quality of home, you would not use an
25   upstairs bathroom, one of the children's bathrooms.     So
                                                               135



1    we put in a bathroom, a wet bar.    It's showing a closet,
2    but I went above and beyond and made it a wet bar with a
3    microwave.    And then the media room is off that area.
4       Q    So rather than having to leave the game room or
5    the media room to go to the restroom or to get to the
6    bar, you could stay in that area?
7       A    Yes, sir.
8       Q    Can you tell us what the elevations show?
9       A    Yes.    This is the remodel.   This is the
10   existing laundry room that they're kind of showing, and
11   that as you look at this new part, this is the covered
12   entry that I was referring to where the guest room was,
13   and the media room was above.
14      Q    Now this on the bottom here, what is that, the
15   rear of it?
16      A    That's the rear view and that's a side view.
17      Q    All right.    And then the final page?
18      A    This was the existing garage.    And you can see
19   we built off the garage, kept these dormers exactly the
20   same, put in a similar window, and then had its own
21   separate entry as I mentioned earlier
                                         .
22      Q    Now, Ken, these plans have a date on them, and
23   the date on them is August 23, 2007.    Do you see that?
24      A    Yes, sir.
25      Q    Are these the first set of plans that you had?
                                                             136



1       A    No.
2       Q    How is it -- is it typical to just have one set
3    of plans that are created and that's it?
4       A    Well, you work toward a final plan, but there's
5    typically multiple drafts along the way.
6       Q    Is it your practice to retain the roof -- the
7    previous versions once you get the revision?
8       A    No.   I always throw them out for fear that I
9    would have an old version and give it to a subcontractor
10   and it would be incorrect.
11      Q    Now, in June of 2007, when you were going to
12   try to make the pitch to build this addition, did you
13   have any meetings with anybody at the house?
14      A    Yes, sir.
15      Q    Who did you meet with?
16      A    I met with John Buttemiller and Mr. Hickok.
17      Q    Did Mr. Hickok come by the house where you were
18   proposing to do the remodel?
19      A    He sure did.
20      Q    And that was before you ever contracted to buy
21   that house?
22      A    Yes, sir.
23      Q    Why did you feel that was necessary?
24      A    One, I wanted to make sure that everybody was
25   in agreement; and, two, we were in the process -- we
                                                                 137



1    hadn't come to a contractual agreement.       So how could
2    you or any prospective party agree on what would be in a
3    contract for a purchase and a remodel without discussing
4    it beforehand, looking at the property, walking it?
5          Q      Tell us what happened at the meeting with
6    Mr. Hickok and Mr. Buttemiller.
7          A      They came out.   It was a hot day.   I remember
8    it.       We walked outside, walked inside, and I basically
9    laid out for Mr. Hickok that, as I said earlier, the
10   home lacked a couple of things and that I could make the
11   improvements and it might benefit everybody.        So we
12   walked the back of the property.       We walked around the
13   garage.      We discussed in detail.
14                     I had even drawn out on a piece of paper
15   the proposed addition where it would go, what the plan
16   would be for the guest room, for the upstairs media
17   room.      Doug was in agreement. He asked Mr. Buttemiller
18   his thoughts, and we ended the meeting with let's, you
19   know, proceed.      He was going to contact Mr. Shaw, but
20   then we were going to proceed with potentially putting
21   together the deal.
22         Q      Now, do you know whether or not you had drawn
23   plans at that time?
24         A      When I met with Mr. Hickok,no.   But I did have
25   a drawing on paper of where things would go, and really
                                                              138



1    it was the only logical place that it could go because
2    the pool took up the rest of the place and the master.
3       Q       When you had your meeting with Mr. Hickok and
4    Mr. Buttemiller, was there any question as to what you
5    were proposing?
6       A       No.
7       Q       Mr. Hickok testified something like, well,
8    you'd want to know what the specifications are because
9    you want to make sure they don't have purple walls or
10   anything like that.    Did y'all have any discussions
11   about what the addition would be like with respect to
12   the rest of the house?
13      A       We did. He was concerned, I would think, that,
14   as he said -- and I believe him on this -- that it would
15   be of quality construction.    And I guaranteed to him
16   that it would.    For example, the home had mahogany
17   doors.   They're very expensive doors.   The home had
18   hand-forged hardware where normally you could go into
19   Home Depot and buy a nice lock for $20.    These
20   hand-forged locks were $300. It had an old Spanish flat
21   tile roof that I found out came off an old home in
22   Houston.    It was about 80 years old.   So one of the
23   discussions that we had was making the improvements in
24   like kind to the rest of the house and using a similar
25   quality and materials.
                                                             139



1       Q     What does that mean to a builder when you say
2    "like kind"?
3       A     Mahogany doors, the oak wood floors.
4       Q     It means doing the same thing that's in the
5    house?
6       A     Yes, sir.
7       Q     After your meeting with Mr. Hickok and
8    Mr. Buttemiller, who drafted the contract?
9       A     They did.
10      Q     When you say, "they," who are you referring to?
11      A     I'm assuming it was their lawyer.
12      Q     In other words, you didn't draft the contract?
13      A     No, sir.
14      Q     And when you received the contract, was there
15   anything that you thought of that was very important to
16   you with respect to this potential deal?
17      A     Yes, there were two issues. One was that the
18   home would have to have some type of personal guarantee
19   in the event that their legal entity
                                        went belly up. And
20   the other was that if we were going to agree on what the
21   improvements were, then consent should not be
22   unreasonably withheld.
23      Q     Now, are you testifying that you showed
24   Mr. Buttemiller or Mr. Hickok drawn plans other than the
25   handwritten plan that you had for this project prior to
                                                               140



1    closing?
2       A       No.
3       Q       Do you know when you showed them plans for the
4    first time?
5       A       Well, I had a drawn-out plan the first time we
6    met.   The formal plans were drafted subsequently, and
7    copies were provided to Buttemiller. I had to give
8    copies to the HOA.     I had to give copies to the
9    homeowners association.    Excuse me.   I hadto give
10   copies to the city for approval. We had an issue with
11   the home was over the building setback line on one side.
12   So the homeowners association had to approve that, and
13   so did the city.
14      Q       You had to get a variance?
15      A       Yes, sir.
16      Q       So as I understand it, at the time of closing,
17   that is you guys wrote up the contract and that's
18   Exhibit 3, and we've talked about that, right?
19      A       Yes, sir.
20      Q       And you then went out and you were getting a
21   loan where the bank was going to hold the money in
22   escrow for the building of the addition, right?
23      A       Yes, sir.
24      Q       Would the bank loan you money if you didn't
25   have plans and specifications at that time?
                                                             141



1       A    No.
2       Q    So prior to the time of closing, you had plans
3    and specifications?
4       A    Yes.
5       Q    In fact, you recall that they showed Exhibit
6    15, which was the construction loan agreement between
7    you and the bank, right?
8       A    Yes.
9       Q    Did that agreement require you to build this
10   thing in accordance with plans and specifications?
11      A    Yes.
12      Q    Does that mean that you submitted plans and
13   specifications to the bank?
14      A    Yes.
15      Q    Up there is the notebook that contains the
16   exhibits that have been admitted.
17                  MR. ALDOUS: Thank you, Your Honor.
18      Q    (By Mr. Aldous) And if you look at Exhibit 1,
19   it is your fax to Mr. Buttemiller dated May 25, 2007.
20      A    Yes.
21      Q    Now, with respect to that date, the fact that
22   you're sending this on that date means that you've
23   already looked at a form of an agreement, right?
24      A    Yes.
25      Q    The language that you asked them to submit into
                                                            142



1    the part where it says, "Where I marked insert A." Do
2    you see that?
3       A    Yes.
4       Q    What part did you add to that?
5       A    That was the improvements will be -- receive
6    general consent, consent not to be unreasonably withheld
7    to proceed with the improvements.
8       Q    What was your thinking on adding that in?
9       A    I didn't want to get into a situation where
10   they were delaying me and/or holding me up over, you
11   know, door knobs or minor issues.
12      Q    Did you think that that language was going to
13   take care of that?
14      A    Yes, sir.
15      Q    Then you had down below that, it said, "We
16   would like to suggest a new Addendum 4 that reads," and
17   then you have what I'm going to refer to as the personal
18   guarantee?
19      A    Yes, sir.
20      Q    And why is it that you wanted the personal
21   guarantee there?
22      A    As I said earlier, in the event that the
23   business went bankrupt or belly up or was insolvent,
24   that I would have some guarantee that the home would be
25   purchased back, personally.
                                                              143



1       Q       In other words, that not just the business, but
2    the people would also be responsible?
3       A       Yes.
4       Q       Did all of the suggestions that you made in
5    Exhibit 1 get incorporated into the agreement?
6       A       I believe so.
7       Q       Now, there were some questions from Mr. Chaiken
8    to Mr. Hickok about your agreement with the bank and the
9    fact that the agreement with the bank said you were
10   supposed to start construction at a certain period of
11   time?
12      A       Yes.
13      Q       Did you and the bank reach some sort of
14   agreement as to starting later?
15      A       Yes.
16      Q       Tell me about that.
17      A       Well, honestly, I was unaware that the contract
18   said you had to start in 15 days.     There was a broker
19   who was representing --
20                     MR. SHAW: I'm going to object to hearsay
21   and narrative because I don't know where this is going
22   in particular.
23                     MR. CHAIKEN: I join in the objection of
24   hearsay.
25                     THE COURT: Overruled.
                                                               144



1       Q     (By Mr. Aldous) You can answer.
2       A     Oh, what's the question again?    I'm sorry.
3       Q     You just -- now you're putting it back on me to
4    remember what the question was?
5                    THE COURT: We can have the court reporter
6    read it back.
7                    MR. ALDOUS: That's all right, Your Honor.
8    I do remember.
9       Q     (By Mr. Aldous) So, with respect to the
10   agreement that I asked if you and the bank agreed to
11   allow you to start later, and you said -- I believe you
12   said, "I didn't realize that there was a 15 day" --
13      A     Yes.    There was -- that was just an oversight
14   on my part.     But the bank never contacted me either.
15   And it's been so long ago.    I can't remember
                                                  .   But there
16   was a broker who represented, you know, the bank and us
17   as the intermediary. And he never brought it to my
18   attention, so it wasn't really until I think almost a
19   year later that the bank called and said, hey, you've
20   got to start this construction.    And then at that --
21                   MR. CHAIKEN: Your Honor, I object and
22   motion to strike where he's testifying to what the bank
23   said.   That is hearsay.
24                   THE COURT: Sustained. Rephrase your
25   question, Mr. Aldous
                        .
                                                              145



1       Q      (By Mr. Aldous) Did the bank allow you to start
2    later than what was called for in the construction loan
3    agreement?
4                     MR. CHAIKEN: Same objection, hearsay --
5                     THE COURT: Overruled.
6                     MR. CHAIKEN: -- what the bank allows.
7    Calls for hearsay.
8                     THE COURT: Overruled.
9       A      Yes.
10      Q      (By Mr. Aldous) When you and Betsy closed this
11   contract in June of 2007, did you actually physically
12   sign the closing documents at the same time as VSDH and
13   Mr. Hickok?
14      A      No.
15      Q      Tell us how that happened.
16      A      We went to the closing first.   It was their
17   title company.     They provided the title company, so we
18   went down there and closed.    And then I assume they
19   closed sometime thereafter.
20      Q      When you say, "we closed," what do you mean?
21      A      Signed all the documents and the loan was
22   funded.
23      Q      Now, attached to the contract, which is Gross
24   Exhibit 3, are several pages of Addendum B, which are
25   the 2004 White Wing -- no, 1,082 square-foot addition
                                                            146



1    casita with FR bedroom and shared pool bath.    Did you
2    prepare this document?
3       A    Yes.
4       Q    Can you describe for us what it is?
5       A    Basically it's the specifications of what will
6    go into the construction of the improvements.
7       Q    And so if you would, justtake a couple of
8    entries, whatever they are, and describe for us what
9    they mean.   For instance, under concrete, it says slab.
10   Then it says unit 546.   What does that mean?
11      A    546 square feet of concrete.    You'll see, for
12   example, the framing.    We got labor of 15,000.   We got
13   material, 10,000.   I've got cedar pergola for the porch
14   that I mentioned earlier of $2,000.    I have my roofing
15   material and labor in there, windows, gutters.
16      Q    Now, so some of it -- when you say units, some
17   of it is just how many you need for that space, but some
18   of it's based upon square footage; is that right?
19      A    Yes, sir.
20      Q    So when you say electrical down towards the
21   bottom where it says electrical under mechanical, it
22   says 1092.   Is that the same thing as saying for -- that
23   much square footage you had to -- we're going to pay
24   that much?
25      A    Yes.
                                                               147



1       Q    On the next page, there's additional material
2    that is referred to.    And it says, for instance, stone
3    materials, tons.    And it says 25.   Does that mean 25
4    tons of stone?
5       A    Yes, sir.
6       Q    And is that based upon how much you thought you
7    were going to have to cover?
8       A    Yes.
9       Q    And then so all of these related to what you
10   measured out as being necessary to complete a 1,092
11   square-foot addition that you proposed?
12      A    Yes.
13      Q    All of this was attached to the contract as
14   Addendum B?
15                  MR. SHAW: Your Honor, the leading
16   continued.    I need to object to it.
17                  THE COURT: Rephrase, Mr. Aldous.
18      Q    (By Mr. Aldous) Was Addendum B attached to the
19   contract at the time of closing?
20      A    Yes, sir.
21      Q    Did anybody request this document that is
22   Addendum B?
23      A    Yes.     Mr. Hickok and Mr. Shaw requested it
24   through John Buttemilleras part of the contract, it be
25   produced.
                                                            148



1       Q    There's some statements about whether or not
2    these particular items that are listed in the Addendum B
3    constitute specifications.   In your mind, are they?
4       A    Yes.
5       Q    There was an indication that specification
6    means type and color of paint and so forth.   Do you
7    agree with that?
8       A    Perhaps under a commercial construction, which
9    Mr. Hickok was referencing, you might have office
10   buildings painted eggshell. In this case, we were
11   matching the interior colors of the home.   We were
12   matching the wood floor, which was oak.   We were
13   matching the stone, which was an Austin chop.    So it was
14   pretty obvious to, I thought, everyone involved of what
15   the specifications were.
16      Q    Let me ask it a little differently.     Were you
17   under any confusion as to what was expected in terms of
18   the addition as it related to the original house?
19      A    No, sir.
20      Q    Is it your belief that anyone else involved in
21   the transaction was somehow confused as to what it meant
22   when you said "like kind" in terms of the new addition?
23                  MR. CHAIKEN: Objection, calls for
24   speculation about what somebody else believed or was
25   confused.
                                                           149



1                   THE COURT: No speaking objections.
2                   MR. CHAIKEN: Speculation.
3                   THE COURT: Overruled.
4       A    No, sir.
5       Q    (By Mr. Aldous) Did anyone involved with this
6    transaction, be it Mr. Buttemiller, Mr. Hickok, or
7    anyone else, express to you that they were confused by
8    your Addendum B and what was anticipated in terms of the
9    addition?
10      A    No, sir.
11      Q    There's also a part in the closing that's been
12   referenced by Mr. Hickok and it relates to the escrow.
13   Do you recall that testimony?
14      A    Yes.
15      Q    Let me put up on the screen the provision
16   relating to the escrow.   So did you seek, you know, or
17   look into whether or not your lender would agree to
18   escrow funds with the title company?
19      A    Yes.
20      Q    What did they -- what was the result?
21      A    The result was that our lender was not going to
22   fund the loan or loan us the money unless the money was
23   held in their account since they're the ones with the
24   risk.
25      Q    So if -- by the way, did you -- were you ever
                                                              150



1    -- did anyone ever connected with the transaction object
2    to that?
3       A       No.    In fact, I contacted Mr. Buttemiller and
4    that's why the contract was changed and agreed to from
5    the 2.851 to the 2.695 number that was discussed
6    earlier.
7       Q       So, as I understand it, your bank, the one
8    that's loaning you the money to buy the home and do the
9    addition, is not going to let someone else hold the
10   money for the addition, right?
11      A       Correct.
12      Q       And if that's a condition of closing, would you
13   have been able to close if, for instance, VSDH said,
14   hey, we're not going to do it unless you put the money
15   in with the Chicago Title?
16      A       No.
17      Q       In other words, the deal wouldn't have gotten
18   done?
19      A       Yes.   Correct, yes.
20      Q       At that point in time -- so VSDH, is it your
21   understanding they could have said, "I'm sorry.     That
22   doesn't comply with the contract; and, therefore, we're
23   going to just keep your earnest money and go on our
24   way"?
25      A       They could have, but they modified the contract
                                                            151



1    to accommodate that.
2       Q    All right.     And so when you hear somebody say
3    that you violated or breached the agreement as a result
4    of not escrowing the funds at the title company, what's
5    your response?
6       A    I don't see how that's true whatsoever.
7       Q    Was it your belief that everybody had agreed to
8    it and that's how the deal got closed?
9       A    Yes, sir.
10      Q    In the terms -- so when you're building a home
11   for somebody else and you -- you're using their funds,
12   whether it be through the bank or whatever, as the
13   builder, you don't get 100 of that right off the bat, do
14   you?
15      A    No.
16                 MR. SHAW: Your Honor, the leading
17   continues, and I need to object to it.
18                 THE COURT: Sustained.    Be careful how you
19   phrase your objections, though, Mr. Shaw.
20                 MR. SHAW: I'm sorry, Your Honor.
21      Q    (By Mr. Aldous) How is a typical transaction
22   when there's going to be a builder who's building a
23   house on behalf of somebody?
24      A    The bank holds the money and they call it a
25   draw against the construction process.    So if you
                                                             152



1    complete the foundation, you're paid for the foundation,
2    the framing.
3       Q    And is it the draw -- are the draws limited to
4    the amount of work that's been completed?
5       A    Yes and inspected.
6       Q    Is that the way that the, I guess, the
7    borrowers protect and make sure the builder does what he
8    says he's going to do?
9                   MR. SHAW: Objection, leading, Your Honor.
10                  THE COURT: Overruled.
11                  THE WITNESS: Yes, sir.
12      Q    (By Mr. Aldous) In this transaction, it was --
13   was it a bit different than that typical transaction?
14      A    No.    The lender, First Horizon, which then
15   became Met Life, had the same requirements.   We could
16   not draw upon the funds until the work was completed and
17   the property was inspected for the work -- said work for
18   the draw.
19      Q    All right.   Now I want to turn to the part
20   about in 2008.   First of all, under Section 2, before
21   commencing construction, buyer will review with seller
22   the plans and specifications andreceive general consent
23   -- do you see that --consent not to be unreasonably
24   withheld?
25      A    Yes.
                                                               153



1       Q     So you heard Mr. Hickok and his statement as to
2    he thinks that you violated that.    Do you agree?
3       A     No.
4       Q     Why not?
5       A     Well, from the very beginning, there was
6    agreement on what was being constructed.     We knew it was
7    going to be a guest room and a media room. I had
8    produced plans for the lenders.    We talked about
9    Mr. Buttemiller had plans, and then when we were
10   commencing construction, I tried to get ahold of
11   Mr. Hickok to come review the plans with difficulty in
12   getting cooperation.
13      Q     What do you mean by that?
14      A     Well, we -- I tried calling him on multiple
15   occasions, and he never returned my calls. I finally
16   ended up having to fax him to get his attention.      And
17   then it was several days that passed before we
18   communicated.    We set up a time to meet.   Again, he
19   couldn't meet right away, but it was like another two
20   weeks.
21                   So this was already almost a month that
22   had gone by.    We were set to meet on -- it was
23   Halloween, October 31.    I get an email he can't meet.
24   He's out of town.    Another couple of weeks go by.   So it
25   was a protracted process to get them to approve the
                                                                 154



1    plans.
2       Q       Well, at that time, were you concerned at all
3    about whether or not there was going to be any kind of
4    disagreement with the plans?
5       A       No.
6       Q       Why not?
7       A       Again, we were in agreement that it was going
8    to be a guest bedroom down, a media room up.     The
9    specifications were all spelled out, what it was.      It
10   was in like kind, using the same materials. So there
11   was no -- no disagreement from my perspective at that
12   point in time.
13      Q       Now, when Mr. Hickok did finally come out to
14   the house, he testified that you were halfway done. Is
15   that accurate?
16      A       No, sir.
17      Q       Tell us how far along you were and why you
18   started.
19      A       Well, we started because the bank had notified
20   us that we had to finish construction by the beginning
21   of the following year, which only gave me about three,
22   four months to complete the process.     So when Mr. Hickok
23   came out, I had the foundation poured and most of the --
24                    MR. CHAIKEN: Your Honor, I'm sorry.   I
25   have to interposean objection and move to strike on the
                                                               155



1    grounds of hearsay.    He's testifying as to what the bank
2    told him he had to do.
3                   THE COURT: Overruled.
4       Q       (By Mr. Aldous) So Mr. Hickok came out and you
5    had the foundation and what?
6       A       The foundation came out and the home was
7    partially framed.    It wasn't completed.   The roof was
8    not on for sure.
9       Q       So what do you mean by partially framed?     Just
10   describe for me what that means.
11      A       Well, first phase is the foundation.   The
12   second phase is the framing, and that means just, you
13   know, all the walls, closing everything in, putting the
14   roof on.    And then once the frame is complete, then you
15   start to do the electrical.    We call it the mechanicals;
16   the heat, air-conditioning
                              .
17      Q       Now you said that the roof was not on.    It
18   wasn't weathered in; is that right?
19      A       Yes, correct.
20      Q       So what does that mean, "weathered in"?
21      A       That means if it rains, water can get into the
22   improvements and damage.    You know, if you were to put
23   the drywall up without it being weathered in, you would
24   destroy the drywall.
25      Q       So take us through the visit from Mr. Hickok
                                                              156



1    and what occurred.
2       A     When he finally did come out, it was a very
3    cordial discussion.    I toured him aroundthe bottom half
4    first, the outside, which was the guest room, the pool
5    bath.   We looked at the plans.   We then went upstairs.
6    We had to go through the home to go upstairs.   He looked
7    at the upstairs, the media room area that was framed.
8    And we came downstairs and had a great discussion with
9    Betsy about our children both looking for colleges, and
10   it was very cordial.   And we specifically asked him how
11   things looked.   He said, "Great."   I said, "So I can
12   proceed?"   He said, "Yes."
13      Q     At any point in time, did he say to you, "Oh,
14   you didn't call me before you started construction," or,
15   "you didn't show me the plans before you started
16   construction"?
17      A     No.
18      Q     Did he make any complaint that you had breached
19   the contract by starting what had happened?
20      A     No, sir.
21      Q     If Mr. Hickok said to you, "Hey, dude, I don't
22   like what you've done. You need to redo this," what
23   would you have redone?
24      A     If it was something reasonable, like if I had
25   put a wall in the wrong location, yes, I definitely
                                                              157



1    would have moved it.
2       Q       If he would have made any kind of suggestion
3    that he thought it was important for you to comply with,
4    would you have done it?
5       A       Yes.
6       Q       Within reason?
7       A       Yes.
8       Q       If he told you to put in purple walls, you
9    wouldn't have done that, right?
10      A       Probably not.
11      Q       So after that visit, what else occurred after
12   that?    Did you hear back from Mr. Hickok after that
13   visit?
14      A       Never heard anything, and we just continued on
15   with the construction of the property.
16      Q       So let me show you -- or take a look at exhibit
17   -- hold on just a second -- Exhibit 30 in the notebook.
18   Do you see that? Are you there?
19      A       Yes.
20      Q       So this is an email that you sent to Mr. Hickok
21   on February 23rd, 2009.     Do you see that?
22      A       Yes.
23      Q       Based upon what you're saying here, can you
24   tell us where you were in the construction on the
25   project?
                                                            158



1       A    We were, I think, basically finished.
2       Q    If you would, just walk us through and tell us
3    what some of this stuff means.   It says, "I'm finished
4    with the addition and wanted your final inspection and
5    approval. I ended up going above and beyond with some
6    items, including a larger wet bar, including
7    refrigerator and microwave in the upstairs game room."
8       A    Yes.   As I mentioned earlier, we spent about 20
9    to 25,000 extra.    There were just things that I thought
10   would benefit the home and would make the improvements
11   better overall.    For example, Number 4, marble in the
12   pool bath versus the slate that was in the
13   specifications, I just thought it would be a natural and
14   it would be a, you know, higher quality overall.
15      Q    Well, it says here, "I ended up going above and
16   beyond with some items."   You went above and beyond
17   what?
18      A    The specifications.
19      Q    Was that the Addendum B that we talked about?
20      A    Yes, specifications were Addendum B.
21      Q    And you're saying that these items were over
22   and above what was in Addendum B?
23      A    Yes, sir.
24      Q    Is it your belief that these items were an
25   upgrade from what was reflected in Addendum B?
                                                             159



1       A    Yes.
2       Q    What did it mean when you say upgraded mahogany
3    crown in the downstairs guest room?
4       A    Just putting in extramaterials that were above
5    and beyond what was in the specifications.
6       Q    Well, the crown molding, was it specified to be
7    something less than mahogany?
8       A    I can't remember
                            .    I think the -- I think the
9    molding in the house was paint grade, and I think we
10   went with mahogany in the downstairs guest room.   I
11   can't recall.   There are pictures that we have that
12   would show exactly what we ended up with.    That was
13   probably a somewhat minor thing.   But, you know, some of
14   the major things, like moving -- I don't know if it's in
15   here. I moved all the AC equipment.   It was right by
16   the guest room door.   And you know how air-conditioners
17   are loud, so I spent like two or $3,000 extra to move it
18   to the other side of the addition so that you wouldn't
19   have air-conditioners right by the entry door.
20      Q    What else do you remember that was something
21   that was -- what you consider to be significant?
22      A    Well, the wet bar upstairs, the microwave,
23   making that more of an entertainingarea than just
24   having a closet.
25      Q    Number 10 says, "I put in media room equipment,
                                                            160



1    and this was not in the budget, but will take it with us
2    in the event we move."
3       A    Yes.
4       Q    Why was that important as far as you're
5    concerned?
6       A    It was about $10,000 worth of media room
7    equipment.
8       Q    In terms of the house and the addition, is a
9    media room without the equipment as effective in
10   marketing a house as one with equipment?
11      A    We ended up -- the buyer ended up requesting
12   that it be left, so we ended up leaving it with the
13   purchaser of the home.
14      Q    Well, is it -- just from a builder's
15   perspective, is it easier to market a house with the
16   media room that actually has the equipment in it?
17      A    Yes, yes.   I'm sorry.   Yes.
18      Q    Did you ever receive a response from Mr. Hickok
19   saying that he would like to come over and take a look
20   at the house and what you'd done?
21      A    No.
22      Q    The next thing that occurred was Exhibit 34,
23   which is the 4/27/2009 buyback option exercise.
24      A    Yes.
25      Q    So what was the plan that you and Betsy come up
                                                                161



1    with in terms of the house?
2       A       Well, we knew we were only going to choose to
3    live there for a couple of years and that we were going
4    to exercise the buyback.      On top of that, the market
5    crashed.    The economy crashed.    And we decided we were
6    going to exercise the buyback.      So we notified Doug and
7    Van that we were doing so.
8       Q       In response to your email or your letter, did
9    you receive a response from Mr. Hickok?
10      A       Yes.    It was to the effect that he was no
11   longer handling the issue and that Mr. Shaw would be
12   handling the issue.
13      Q       Let me show you what has been marked as and
14   admitted as Exhibit 65. This is an email after
15   Mr. Hickok said y'all need to talk to Van.      All right?
16      A       Yes.
17      Q       Now you see her email there on the 18th --
18      A       Yes.
19      Q       -- where she says, hey, there's some potential
20   options here?      And do you see Mr. Shaw's response,
21   "Betsy, thank you for your email today.      I'm glad to
22   talk, but I want to make sure you're aware that the
23   entity that sold thehome is not financially solvent.
24   So that will no doubt have a huge impact on our
25   discussion.       Not sure when I will be out that way, but
                                                            162



1    maybe we can meet somewhere else.    I'm not sure where
2    your office is, but that may be a possibility. Please
3    let me know where you suggest"? Do you see that?
4       A    Yes, sir.
5       Q    Now, I don't want to go through all these other
6    emails and things.   But up until the time that you guys
7    put the house on the market, did Van Shaw or Doug Hickok
8    ever contact you and say, hey, you breached the
9    agreement; therefore, we're not going to follow through?
10      A    No.
11      Q    However, did Van Shaw tell you that they were
12   not going to perform the buyback?
13      A    Yes.
14      Q    Tell us that about that.
15      A    We had a phone conversation in which he told me
16   about that.   We arranged a meeting.
17      Q    Told you what?
18      A    That the company was insolvent and that they
19   could not buy the property back.
20      Q    What else did he tell you?
21      A    He said that they might be able to get us a lot
22   in return or in exchange.   And the lot that he was
23   discussing was worth way less than what we were looking
24   at as a potential loss on their breach.
25      Q     At any point in time up to, let's just say,
                                                              163



1    June 28th, did you -- of 2009, did anybody ever suggest
2    to you that you were in breach of this agreement?
3       A      No.
4       Q      Now you saw earlier the letter that came from
5    Hap Stern -- I think it was Exhibit 29 -- that said
6    something to the effect of, "Hey, you didn't do this
7    escrow and we reserve all rights."    You saw that?
8       A      Yes.
9       Q      Do you recall whether or not -- I mean, what
10   did that mean to you?
11      A      Honestly, I was scratching my head with regard
12   to it.   They closed.    They took the money.   We signed
13   first.   They closed.    They knew that we had to change
14   that.    So I was surprised.   In hindsight, I could see
15   why.    But at the time, it was just -- it was sort of
16   inconsequential
                   .
17      Q      Now let me just turn to Exhibit -- I hate
18   getting old because that means I've got to use reading
19   glasses when the light's low.
20                    THE COURT: Would you turn on the lights?
21                    MR. ALDOUS: Thank you.
22      Q      (By Mr. Aldous) I'm missing an exhibit, but
23   forget that.     Let me just show you what -- if you recall
24   -- do you recall having a meeting on June 28, 2009, with
25   Mr. Shaw?
                                                                164



1          A      Yes.
2          Q      What took place at that meeting?
3          A      It was basically a re-summarization of what he
4    had prior told us; that they were not going to perform
5    under the buyback clause, that they were not personally
6    guaranteed, and that, you know, they -- really, that was
7    it.       I mean, nothing that they were going to do.
8          Q      Were you upset?
9          A      Yeah. It was our worst fear to be honest.
10         Q      Let me show you what has previously been
11   admitted as Gross Exhibit 59.        On August 18th, you had
12   already put the house on the market.        Why did you put
13   the house on the market?
14         A      They told us they weren't going to perform, so
15   we had really no other option but to try to sell it
16   ourselves.
17         Q      And Exhibit 59, you received an offer, right?
18         A      Yes, sir.
19         Q      Tell us about what happened.
20         A      Well, Roxann Taylor -- Roxann Taylor met with
21   us and she showed us the comps in the neighborhood, and
22   we agreed on a price based on the comps and the market,
23   you know, that had crashed.        And so we agreed on a price
24   at 2.5.      The home sat for, you know, a month or two with
25   virtually no showings.         There might have been one or two
                                                             165



1    showings. It was not optimistic.
2                     And lo and behold, a buyer came along and
3    offered us a cash deal through Roxann Taylor.     But we
4    had to be out within a very short period of time.     She
5    wanted the closing to be whenever it was, August 21st or
6    a couple of weeks before September 1st.     We asked her,
7    through Roxann, whether she would wait until after
8    September 1.     And she said, "No.   If you do that, the
9    deal is off."
10      Q       This exhibit where you sent the email to
11   Mr. Hickok and Mr. Shaw, was this kind of like your last
12   attempt?
13      A       Yes, sir.
14      Q       Did you ever get a response to this?
15      A       Nothing.
16      Q       Were you aware at the time you sent this that
17   -- that VSDH, Mr. Hickok, and Mr. Shaw had sued you --
18      A       No.
19      Q       -- and Betsy in this court?
20      A       No, sir.
21      Q       When they filed that case in July 7th of 2009,
22   did they ever have you served up and to this point,
23   August 18?
24      A       No, sir.
25      Q       So at no point in time did they inform you that
                                                                 166



1    they had sued you?
2       A       No, sir.
3       Q       I'd like to look at some photographs here that
4    we have that have previously been admitted as Exhibit
5    116.     First of all, can you tell us where these photos
6    came from?
7       A       Yes.    They're from the home at 2004 White Wing.
8       Q       Well, I mean, I know that.   But I mean --
9       A       Oh, you mean the location within.   That's a
10   picture of the back patio area looking toward the
11   laundry room.
12      Q       Okay.   I'm not doing very good.   I mean, who
13   took these pictures and for what purpose?
14      A       Roxann Taylor did as part of the listing
15   agreement and marketing of the property.
16      Q       So now, going to -- where is this looking?
17      A       That's looking at the rear -- off the rear
18   patio.
19      Q       And the rear patio being the rear patio where
20   the addition was?
21      A       No.    That's looking at the laundry room. The
22   addition is behind it to the left.
23      Q       Okay.   What do you got here?
24      A       That's the pool with the addition to the right.
25      Q       So the part that you built on is the part over
                                                                167



1    here that you can see a structure?
2       A       Yes.   And we also -- I believe this was at our
3    expense.    We tore out -- that whole area that you see in
4    front was some big blocks of squares of concretethat
5    had mondo grass, and you could trip over it.      So we tore
6    all that out and put in flagstone.
7       Q       Right here?
8       A       Yes, sir.    I think we made that much more
9    beautiful, and then we created a flagstone walkway back
10   to the guest bedroom that you can see.
11      Q       All right.    What you got here?
12      A       That's the addition.    You can see the porch
13   that I talked about, the covered entryway.      You can see
14   that the cedar beams, support posts, match the other
15   existing of the first picture you showed.      There's the
16   stone.   There's the tile roof.
17      Q       The next photograph?
18      A       That was the library, which was unchanged.
19      Q       That was part of the original house?
20      A       Yes.   This was taken at the time we listed the
21   property.
22      Q       All right.
23      A       The upstairs foyer or entryway to my daughter's
24   bedroom.    And then to the left would go back to the game
25   room, but that is existing.
                                                                168



1       Q     Okay.
2       A     I think that's a pretty good shot of the
3    addition on the left and the existing home on the right.
4    You can see the tile roof.
5       Q     Is this the addition here?
6       A     Yes, sir.
7       Q     And when you say the tile roof, you're saying
8    how it matched up with that?
9       A     Yes, sir.    Same windows.
10      Q     This is the grass that you grew?
11      A     That's looking off the backside of the
12   addition.   Yes.
13      Q     Okay.
14      A     One of the bedrooms, unchanged.
15      Q     Okay.
16      A     Bathrooms.    Excuse me.     Again, similar,
17   unchanged bathroom.    Unchanged bedroom.     Again,
18   unchanged, that was my daughter's bedroom.
19      Q     All right.    Let mesee if I can get to the part
20   where it changed.
21      A     Yes.    That's the guest casita or office.     You
22   can see we've got the same hardwood floors.       We have the
23   mahogany doors to your right.       There's the mahogany
24   crown.
25      Q     When you say, "crown," you'retalking about the
                                                                 169



1    molding?
2       A       Yes, the crown molding.
3       Q       As opposed to the Crown Royal or anything like
4    that?
5       A       Yeah. Same color paint that the rest of the
6    house had.
7       Q       And this, what is this?
8       A       That was an area that we added as well.    That
9    was at our expense. I believe if you go back to the
10   specifications -- I didn't mention it earlier, but there
11   was a column that had "other."       Those were items that we
12   agreed to do on our own; and, yet, were seeking approval
13   to do those so that Mr. Hickok and Mr. Shaw would not be
14   surprised by any of the improvements.      But that was a
15   front outdoor courtyard patio that we entered -- that we
16   constructed.      Excuseme.
17      Q       Is this the entrance to the bedroom downstairs?
18      A       No.   That's an entrance to what was -- what is
19   the kitchen.
20      Q       Oh, okay.   And just -- there's a front photo of
21   the house?
22      A       Yes, sir.
23      Q       And then what do we got here?
24      A       That's the game room.   And off in the distance
25   you can see -- when you go through the arched opening,
                                                                170



1    we have the wet bar on the right.      And then looking
2    through is the media room.
3       Q       What you got there?
4       A       That's the media room.
5       Q       All right.   Now in addition to the photos that
6    were prepared and shown on Ms. Taylor's website for the
7    sale, was there also a brochure that she created?
8       A       Yes, sir.
9       Q       We previously have admitted Exhibit 115.
10   That's not the house, right?
11      A       No.    That was the cover of the edition --
12      Q       Oh.
13      A       -- the edition of the magazinethat it was in.
14   That's it.
15      Q       And then the photos down below of the portion
16   of it as she wastrying to sell it, right?
17      A       Yes.   And you can see that the existing
18   matched.
19      Q       Sorry?
20      A       For example, the room on the middle right there
21   is the great room.      You can see where we matched the
22   mahogany doors, the paint color, the oak floor.
23      Q       Is this what you're referring to?
24      A       Yes, sir.
25      Q       All right.
                                                              171



1                    MR. ALDOUS: Thank you, Your Honor.
2                    THE COURT: Dan?
3       Q     (By Mr. Aldous) I kind of want to ask you. So
4    during this whole process before you exercised the
5    buyback option, did you consider there to be any kind of
6    animosity or combativeness with VSDH and Mr. Shaw or
7    Mr. Hickok?
8       A     Other than the letter that their attorney sent
9    after the closing, there was really little interaction,
10   but certainly no animosity.    Betsy had, I think, run
11   into Mr. Shaw on a couple of occasions and had a very
12   cordial discussion or discussions with him as well.
13      Q     Now your next-door neighbor, Mr. Maya --
14      A     Yes.
15      Q     -- were you aware that he was friends and,
16   slash, an investor with Mr. Hickok?
17      A     Yes.
18      Q     Did they -- were they in the home before?
19      A     Yes.
20      Q     Had you had them into the home after the
21   addition was done?
22      A     I can't say for certain, but I would think they
23   would.   We had dinners together.   We were neighbors.
24                   MR. ALDOUS: All right.   I think I'll pass
25   the witness now, Your Honor.
                                                              172



1                   THE COURT: Mr. Shaw?
2                   MR. SHAW: Thank you, Your Honor.
3                          CROSS-EXAMINATION
4    BY MR. SHAW:
5       Q     Mr. Gross, let me get started kind of at the
6    top and work through it with you please.       You said --
7    what's your business?
8       A     Yes, sir.
9       Q     Yes, sir.    Your business is what?
10      A     Home building, remodeling.
11      Q     What did you say the name was?
12      A     Impact Estates.
13      Q     Now, that's not the only business you've got,
14   is it?
15      A     At this point in time, no.
16      Q     All right.    Tell us what other businesses you
17   have.
18      A     Just one other.
19      Q     Which is?
20      A     Carabela Custom Homes.
21      Q     So there's a different home building company
22   you've got?
23      A     Yes, it's inactive.   I mean, it's active from
24   the secretary of state, but I've not -- I have not done
25   a project under that name.
                                                            173



1       Q     Well, you're involved with Impact Health, Inc.,
2    aren't you?
3       A     Yes.    That's the S corp and the Impact Estates
4    is doing business as, which is under the umbrella of
5    Impact Health.
6       Q     You're involved with Impact Luxury Estates; is
7    that right?
8       A     Yes.
9       Q     You're involved with Impact Concrete; is that
10   right?
11      A     That was an old business that we tried to start
12   in the concrete business.
13      Q     You're involved with Impact Concrete Solutions;
14   is that right?
15      A     They were basically the same entities where we
16   were trying to get into the concrete business.
17      Q     And Carabela Custom Homes, Inc., when did you
18   start that?
19      A     I think we registered it a couple of years ago.
20      Q     How long have you been a home builder?
21      A     Since our fire, 2000 and -- about 2000, the
22   year 2000.
23      Q     Fifteen years?
24      A     Yes, sir.
25      Q     And you've built more than six, $2 million
                                                              174



1    homes; is that right?
2       A       No, sir.
3       Q       How many have you built?
4       A       Probably around six, but they weren't over two
5    million.    They were million-dollar homes, but I built a
6    couple in Las Colinas that were maybe under a million.
7       Q       You're a sophisticated home builder, right?
8       A       Yes.    Whatever sophisticated means.
9       Q       Well, you agree you're sophisticated, fair?
10      A       Yes.
11      Q       You had the means to buy a $2.6 million home in
12   2007, right?
13      A       Yes.
14      Q       The -- now, you sold your prior home to Dr. and
15   Jodi Lash; is that right?
16                     MR. ALDOUS: Your Honor, I would object
17   and I would ask to approach the bench.
18                     THE COURT: You may approach.
19                     (Sidebar conference held)
20                     THE COURT: You may proceed.
21                     MR. SHAW: Thank you, Your Honor.
22      Q       (By Mr. Shaw) Now you said you had a lot in
23   Vaquero when you bought this home in that same
24   development; is that accurate?
25      A       Yes.
                                                             175



1       Q    And you had a -- some property that you said
2    was flooded?
3       A    Yes.
4       Q    And what happened as a result of that?
5       A    Well, the rain --
6                    MR. ALDOUS: Objection, Your Honor.    What
7    happened as a result of that is -- doesn't allow me to
8    sufficiently object.   I'm not sure what he's asking.
9                    THE COURT: Rephrase.
10      Q    (By Mr. Shaw) You said you couldn't or didn't
11   build on that property?
12      A    Yes.
13      Q    Why?
14      A    Because it flooded and the homeowners
15   association would not allow us.   We submitted plans for
16   construction, and they said we could not put the home up
17   until the flooding issue was resolved.
18      Q    So what did you do to resolve that issue?
19      A    Ultimately, we made about $200,000 in
20   improvements to correct it and then subsequently sold
21   the property.
22      Q    And how long was it after when you did the
23   improvements?
24                   MR. ALDOUS: Your Honor, I object as
25   relevant.
                                                               176



1                      THE COURT: Sustained.
2       Q       (By Mr. Shaw) So you bought the home here.   And
3    how long did you think it was going to take you to build
4    on that lot that you had wanted to that had been
5    flooded?
6       A       We -- I don't know if Iquite understand your
7    question.    But it would take us about a year-and-a-half
8    to two years to construct any home in that development
9    with the planning process taking about six to nine
10   months for drawing plans and submission for approval.
11      Q       And what kind of home did you want to build,
12   what price range?
13      A       On which lot?
14      Q       On the flooded lot.
15      A       I think we had plans for a large home that was
16   around 2 million.     I can't rememberthe final. It's
17   been so long ago.
18      Q       When you say a "showcase home," what is that?
19      A       Just a home that we could show the quality of
20   construction.
21      Q       The -- so you decided that you will look for a
22   home and you find the home we're here about; is that
23   right?
24      A       Yes.
25      Q       And you had a lawyer as part of this
                                                             177



1    transaction, right?
2       A    Yes.
3       Q    Mack Zimmerman?
4       A    Yes, sir.
5       Q    Why do we see paperwork where you're coming up
6    with terms for the contract instead of your lawyer?
7       A    He drafted the language and I presented it to
8    John Buttemiller.
9       Q    Okay.    Why didn't your lawyer present it?
10      A    I think it was just an order to expedite the
11   transaction.
12      Q    You have a position that you would not have
13   purchased the property if myself and Mr. Hickok were not
14   personally liable?
15      A    Yes, sir.
16      Q    No doubt about it, right?    That's your
17   position?
18      A    Yes, sir.
19      Q    You had a lawyer?
20      A    Yes, sir.
21      Q    You never got a signature from me at all, did
22   you?
23      A    We closed first.    You closed after, and you did
24   not sign it.    Your title company should have caught
25   that, but they did not.
                                                               178



1       Q     What should they have done?
2       A     I would think they would have -- you picked the
3    title company.     I would have thought or hoped that they
4    would have asked you to consummate the contract.
5       Q     Did your lawyer pick that up?
6       A     No.   My lawyer was only involved in the
7    language.
8       Q     Okay.    What language?
9       A     The language you just referred to, the buyback.
10      Q     So why wasn't your lawyer involved in the rest
11   of it?   Who stopped your lawyer from being involved?
12      A     No one. He could have been.     In hindsight, he
13   probably should have been, but we had no reason to
14   believe that things weren't going to proceed as we had
15   agreed upon.
16      Q     Okay.    Exhibit 16, VSDH Exhibit 6, where was
17   Shaw going to sign?
18      A     Right below that.
19      Q     Where?
20      A     Seller.
21      Q     Well, Shaw wasn't a seller, was he?
22      A     Well, you were a seller and -- well, you were
23   supposed to be.    VSDH was the seller, and you were
24   supposed to personally guarantee it.
25      Q     So saying seller wouldn't have been right for
                                                              179



1    Shaw to sign, would it?
2       A    Yes.
3       Q    How would Shaw be a seller, if VSDH --
4       A    Your --
5       Q    -- Ltd., owned it?
6       A    Aren't you a partner of VSDH or --
7       Q    No.    I'm -- that's an entity. That's like Dell
8    Computers.    And Michael Dell -- when Michael Dell
                                                       isn't
9    an owner -- isn't personally liable for what Dell
10   Computers does.   Do you understand the distinction?
11      A    Not really.
12                  MR. ALDOUS: Your Honor, I object he's
13   asking him legal --
14                  THE COURT: Sustained.
15      Q    (By Mr. Shaw) Let's look.      Your name is typed
16   in, Ken Gross?
17      A    Yes.
18      Q    Mrs. Gross' name is typed in?
19      A    Yes.
20      Q    Vaquero Venture, Ltd.'s name is typed in?
21      A    Yes.
22      Q    Where is Shaw's name or Hickok's name typed in?
23      A    You guys prepared the contract.     I did not.
24      Q    You guys, who is you guys?
25      A    You're a lawyer.    I'm assuming Hap Stern.
                                                               180



1       Q       Your testimony to thisjury is Hap Stern
2    prepared the contract?
3       A       No.
4       Q       Okay.    Wait a second.    Let's make sure we're
5    clear on things then because when you say something, I'm
6    going to hold you to it.      Okay?
7                     MR. ALDOUS: Objection, Your Honor, to the
8    sidebar comment.
9                     THE COURT: Sustained.
10      Q       (By Mr. Shaw) Hap Stern's going to be here to
11   testify.    Okay?    So your testimony is -- you've now
12   retracted. You're not saying Hap Stern prepared the
13   contract, are you?
14                    MR. ALDOUS: Objection, Your Honor,
15   sidebar comment.
16                    THE COURT: Sustained.
17      Q       (By Mr. Shaw) Who are you saying prepared the
18   contract, sir?
19      A       Mr. Buttemiller presented us with the contract.
20   So who prepared it from your side, I don't know.       Our
21   attorney added the buyback language.        And I added, with
22   my attorney's approval, the consent language, not to be
23   reasonably withheld.
24      Q       Who did Mr. Buttemiller represent?
25      A       He represented both parties.
                                                                181



1         Q     Who?
2         A     You and --
3         Q     Well, who's "you"?
4         A     Van Shaw and Mr. Hickok, as well as VSDH.
5         Q     Now, are you saying Van Shaw had an agreement
6    with Mr. Buttemiller to represent Van Shaw?
7         A     On the personal guarantee side, I'm assuming he
8    did.     He was the one who was -- I don't know what the
9    word is.
10        Q     You're assuming.   Do you know whether or not
11   Mr. Buttemiller and I ever discussed anything about this
12   matter?
13        A     I'd assume he did since he was representing
14   you.
15        Q     Do you know is what I'm asking.
16        A     I don't understand the question.
17        Q     Do you know whether Mr. Buttemiller and I ever
18   had discussion one about anything dealing with this
19   matter, including personal liability?
20        A     No.    I can't -- I can't testify to what you
21   discussed with Mr. Buttemiller.
22        Q     Okay.   Are you familiar with this intermediary
23   --
24        A     Yes, sir.
25        Q     -- notice?
                                                            182



1       A     Yes, sir.
2       Q     That's between Vaquero, the Grosses; is that
3    right?
4       A     Yes, sir.
5       Q     And that says that -- somewhere in here that
6    Mr. Buttemiller is representing both parties?
7       A     Yes, sir.
8       Q     It never says Mr. Buttemiller is representing
9    Van Shaw or Doug Hickok, true?
10      A     I guess.
11      Q     Okay.   So you never talked to me about personal
12   liability at all, did you?
13      A     No, sir.
14      Q     When you signed the contract, my name never
15   appeared anywhere on their signature line, did it?
16      A     No, sir.
17      Q     Doug Hickok's name never appeared anywhere on a
18   signature line, did it?
19      A     Yes, it did.
20      Q     When you signed the contract, where did Doug
21   Hickok's name appear?
22      A     It says seller.   Then his line I'm assuming is
23   his signature.
24      Q     I thought you said you signed this first?
25      A     We signed this.   I don't know whether you
                                                           183



1    signed it first or we signed it first, but this is --
2    this is the document that ultimately ended up going to
3    the title company.   We closed first.
4       Q    I never signed this, right?
5       A    No.
6       Q    You said you signed this first. I never signed
7    this.
8       A    No, no.
9       Q    Okay.
10      A    I didn't mean that.
11      Q    Now, are you saying that Mr. Hickok's name
12   appears under VSDH Vaquero, Ltd., before you signed your
13   name?
14      A    I can't remember
                            .
15      Q    Well, you said you signed -- you went to the
16   title company, you signed first, and so you assumed the
17   title company would have me sign it.    Is that what you
18   said?
19                 MR. ALDOUS: Your Honor, I object because
20   that assumes fact not in evidence.
21                 THE COURT: Sustained.
22      Q    (By Mr. Shaw) What did you say about what you
23   expected the title company todo regarding my signature
24   or Mr. Hickok's signature?
25      A    I thought they would have had you execute the
                                                            184



1    document before funding -- given you guys the money.
2       Q    Where would I have executed the document?
3       A    Where it says seller.
4       Q    Okay.    Now did you ever go over that with
5    Mr. Zimmerman and say, "Mr. Zimmerman, here's what needs
6    to happen," or did Mr. Zimmerman ever tell you words to
7    that effect?
8                   MR. ALDOUS: Your Honor, I object as to
9    attorney-client stuff.
10                  THE COURT: Sustained.
11      Q    (By Mr. Shaw) Should you have had your lawyer
12   more involved?
13      A    I didn't see any reason to.    I thought we
14   agreed on everything, and we were going to be gentlemen
15   about it and live up to our agreement.
16      Q    Sir, I never -- I never talked to you before
17   this closing, not once in my life, right?
18                  MR. ALDOUS: Your Honor, I would object to
19   if he's testifying,
20                  THE COURT: Counsel, approach.
21                  (Sidebar conference held)
22                  THE COURT: You may proceed.
23      Q    (By Mr. Shaw) Sir, let me get back to that.
24   Have you and I ever talked ever before this deal?
25      A    No, sir.
                                                             185



1       Q    So when you said, "I thought we were going to
2    be gentlemen," et cetera, you were not referring to any
3    communications or dealings with me at all; is that
4    accurate?
5       A    Yes.
6       Q    Now looking back on it in hindsight, should
7    your lawyer -- should you have had your lawyer more
8    involved?
9       A    I thought you were going to live up to the
10   personal guarantee.   I thought the title company was
11   going to assume -- was going to take the responsibility
12   for making sure the documents were executed correctly.
13   They were not.   And you're not a party, I don't think,
14   to the lawsuit, so you're -- we're not -- I don't think
15   we're here today to discuss whether or not you're
16   liable. I think we're here to discuss whether
17   Mr. Hickok is.
18      Q    Looking what -- given what we know now, we're
19   in trial, we're going through this, do you wish you
20   would have had your lawyer more involved?
21                  MR. ALDOUS: Your Honor, I object as
22   relevance.
23                  THE COURT: Sustained.
24      Q    (By Mr. Shaw) How many separate homes have you
25   bought or sold in your career?
                                                           186



1                  MR. ALDOUS: Objection, Your Honor,
2    relevance.
3                  THE COURT: Sustained.
4       Q    (By Mr. Shaw) Did you think that prior to
5    contracting for this home that the contracts were flying
6    around in a -- kind of a rapid change procession?
7       A    No.
8       Q    Were the contracts flying around as to the
9    addendum?
10      A    No.   There was some communication back and
11   forth, but I just viewed it as normal parties trying to
12   come to final agreement on what the language would be.
13      Q    The -- when you had the conversation with Doug
14   pre-purchase that you testified to, are you telling us
15   that you had those plans that you've got here?
16      A    No, sir.
17      Q    The -- you were adding a foundation to this
18   home; is that right?
19      A    Yes, sir.
20      Q    Was the foundation engineeredby a soil
21   engineer?
22      A    Yes, sir.
23      Q    Who was the soil engineer?
24      A    I believe I used Graham-Martin in --
25      Q    Graham-Martin is a structural engineer, not a
                                                             187



1    soil engineer.
2       A    Oh, soil engineer.     I can't recall whether we
3    used a soil engineer.   I know that a soil test was
4    conducted, so I'm almost positive that we had a soil
5    engineer, but --
6       Q    Did you share that with Mr. Hickok?
7       A    Before --
8       Q    At any time, did you ever show Mr. Hickok the
9    soil report for the addition?
10      A    No.   That wasn't part of the agreement.
11      Q    Did you ever show Mr. Hickok the structural
12   design of the foundation or the building?
13      A    I believe that was all onsite when he came out
14   and viewed the plans.
15      Q    What was all onsite?
16      A    I had all the engineering plans.    I had the
17   foundation plans, the structural -- I mean, the plans
18   you saw today.   He could have asked for them.   I would
19   have been happy to produce them.
20      Q    Did you show them to him is what I asked.
21      A    I can't recall.   They were all out. I do
22   remember going through -- I had the complete set of
23   construction plans.   The city requires you to keep
24   everything onsite, the engineered foundation plan,
25   everything that's submitted.    It was all there.
                                                             188



1       Q    The city requires a permit.
2                   MR. ALDOUS: Your Honor, I would ask that
3    he allow him to finish his answer before he interrupts
4    him with anotherquestion.
5                   THE COURT: Please allow him to finish,
6    Mr. Shaw.
7       Q    (By Mr. Shaw) Were you finished?
8       A    No.
9       Q    Okay.    Please finish.
10      A    The city requires us to submit all plans as
11   part of the approval process.     They don't necessarily
12   require a foundation plan if you don't want to do one.
13   But in this case, there was a foundation plan with a
14   foundation engineer, so it became part of the city
15   approved plan.
16      Q    In order to do this work, you have to go to the
17   city and get a permit?
18      A    Yes, sir.
19      Q    And you have to be honestwith the city about
20   what you're doing?
21      A    Yes, sir.
22      Q    Were you honest with the city about what you
23   were doing?
24                  MR. ALDOUS: Objection, Your Honor,
25   relevance.    And I also ask to approach.
                                                               189



1                   THE COURT: You may approach.
2                   (Sidebar conference held)
3                   THE COURT: You may proceed.
4       Q    (By Mr. Shaw) Sir, when you got -- you went and
5    asked for a permit from the city, right?
6       A    Yes.
7       Q    And you paid for that, right?
8       A    Yes.
9       Q    And The city wants to know what the value of
10   the improvement is, right?
11      A    Yes.
12      Q    What did you tell the city the value of the
13   improvement was in this case?
14      A    I can't recall.
15      Q    Did you tell them the value of the improvement
16   was what you're telling the jury you spent on this
17   improvement?
18                  MR. ALDOUS: Objection, Your Honor.    If
19   he's asking him a question about a document, he needs to
20   show him the document.
21                  THE COURT: Do you have a document,
22   Mr. Shaw?
23                  MR. SHAW: I'm not asking him about a
24   document.   I'm asking him about his dealings with the
25   city.
                                                             190



1                    THE COURT: Are you asking if he had a
2    conversation with someone from the city or did --
3                    MR. SHAW: I'm asking him what he
4    represented to the --
5                    THE COURT: -- did -- let me finish,
6    Mr. Shaw.
7                    MR. SHAW: Okay.
8                    THE COURT: Are you asking him if he had a
9    conversation with someone from the city or if he had    a
10   document exchanged with the city?
11                   MR. SHAW: Either way.   I don't know.
12                   THE COURT: Clarify then.
13                   MR. SHAW: Okay.
14      Q     (By Mr. Shaw) Are you --when you dealt with
15   the city as to value, did you deal with them orally or
16   in writing?
17      A     Typically it's in writing and it's an estimated
18   value.
19      Q     What did you think the value was going to be
20   for the work?
21      A     It's hard to -- well, the value -- I know what
22   the cost of the improvements were, but that's different
23   than what the estimated value is of a home based upon
24   it's resale.
25      Q     So the city wants to know what the value of the
                                                            191



1    work is and not what the cost of it is; is that what
2    you're telling us?
3       A      That's the way I interpret it.
4       Q      Okay. So, if you were spending -- what was the
5    cost of the improvements you were anticipating?
6       A      $156,000 on the contract.
7       Q      And what was the value of that improvement you
8    were anticipating?
9       A      I have no idea what I put on the paper.
10   Typically, it would be less than what the costs are.
11      Q      Why would you tell the city less than what you
12   were --
13      A      Because you don't know what the value of the
14   improvements are.    It's speculative until you sell the
15   home or it's re-appraised with the improvements.
16      Q      So your testimony is you never represented to
17   the city what the cost of the improvement is, fair?
18      A      They asked for what --
19                   MR. ALDOUS: Objection, Your Honor.   Once
20   again, I'm going to re-urge my objection to the best
21   evidence rule.
22                   THE COURT: Sustained.
23      Q      (By Mr. Shaw) Did the city ever ask you for the
24   cost of the improvement?
25      A      No.
                                                            192



1       Q    Has any city -- in your dealings with -- what
2    is the -- city of West
                          lake?
3       A    Yes, sir.
4       Q    Has the city ever asked you for that?
5       A    Most cities ask for the estimated value.     And,
6    as I just said, the value is subjective.   And certainly
7    at that time it was very subjective because the
8    improvements -- the value of the home was far less than
9    -- even with the improvements.
10      Q    Now, did you believe that Mr. Buttemiller had
11   any legal training?
12      A    I don't know.   I can't speak for that.
13      Q    Did you have any legal training?
14      A    No.
15      Q    Why did you move into this property before you
16   bought it?
17      A    We had set a closing date with Mr. Hickok and
18   you through Mr. Buttemiller and move-in date.     And then
19   when the title company changed -- excuse me -- when my
20   bank changed the holding of the improvements, it delayed
21   the contract.   So it was an approximate two-week period
22   of time, and we were supposed to be out of our home.    So
23   I asked Mr. Buttemiller if it would be okay to ask you
24   guys to take up residence.   And he said, "Not a problem.
25   I'll check with those guys."   He got back to us and we
                                                            193



1    moved in.   He said it was okay.
2          Q   So who did Mr. Buttemiller tell you he spoke
3    to?
4          A   I don't recall whether it was you or Doug or --
5    I don't know.
6          Q   Is there any paper trail you've ever seen about
7    this?
8          A   The only paper trail I saw is that we
9    subsequently agreed that I would pay you 8,500 for the
10   two weeks that we were in the home.
11         Q   When you say, "you," who are you referring to?
12         A   I'm sorry.   You and Mr. Hickok and VSDH.
13         Q   I'm confused.   Me, Mr. Hickok, or all three of
14   us?
15         A   All three.
16         Q   Why do you think I'm individually involved in
17   this?
18         A   In hindsight, you're not.   But at the time --
19   you asked at the time, so that was my assumption at the
20   time.
21         Q   You constructed the improvements between
22   October 16th, 2008 and February 2009; is that right?
23         A   That sounds correct.   Yes, sir.
24         Q   And you built a casita, you built a guest room,
25   you built a media room above it; is that right?
                                                           194



1       A    The casita was the guest room, yes.    And then a
2    media room was above, correct.
3       Q    What else did you do?
4       A    That was it -- the wet bar.
5       Q    When did you put on the front patio?
6       A    I think it was around the same time.
7       Q    The whole issue -- did you know that the
8    contract had a provision that said the terms could only
9    be altered by written agreement?
10      A    Yes.
11      Q    Did you always know that existed?
12      A    Yes.
13                  MR. SHAW: I'll pass the witness.   Thank
14   you.
15                  THE COURT: Mr. Chaiken?
16                  MR. CHAIKEN: We're just going to switch
17   so I'm closer in case I need the overhead.
18                       CROSS-EXAMINATION
19   BY MR. CHAIKEN:
20      Q    Good afternoon, Mr. Gross.
21      A    Good afternoon.
22      Q    You know who I am, right?
23      A    Yes, sir.
24      Q    And you know who I represent, right?
25      A    Yes, sir.
                                                            195



1       Q    If I understood your testimony a short while
2    ago, you testified that you expected the title company
3    to have Van Shaw sign documents at closing. Do you
4    recall giving that testimony just a few short minutes
5    ago?
6       A    Yes.
7       Q    All right.     And one of the things you expected
8    the title company to have Mr. Shaw sign at closing would
9    have been a guarantee, a personal guarantee, right?
10      A    Yes, sir.
11      Q    Okay.    And, likewise, you expected the title
12   company to have Douglas Hickok sign a personal guarantee
13   at closing, right, just like you expected of Mr. Shaw?
14      A    No.     I believe his signature was already on it
15   as I mentioned earlier.
16      Q    His signature was already on it and that's your
17   testimony?
18      A    Yes, sir.
19      Q    Okay.    Now you own a company called Impact
20   Homes, right?
21      A    Impact Estates.
22      Q    Impact Estates.    Is it a corporation, an LLC, a
23   limited partnership?
24      A    It's a DBA.
25      Q    It's a DBA for what?
                                                               196



1       A      For Impact Health.
2       Q      Impact Health is what?
3       A      S corp.
4       Q      It's a corporation, right
                                       ?
5       A      Yes, sir.
6       Q      Ever sign documents as an officer of Impact
7    Health?
8       A      Well, whenever I sign a contract, if it was
9    under Impact Estates, I guess it would be as an officer
10   of Impact Health.
11      Q      Okay.    And you would certainly designate your
12   capacity as an officer of Impact Estates, right?
13      A      Yes.
14      Q      So there was no confusion that the party
15   signing was Impact Health and not Ken Gross personally,
16   right?
17      A      We weren't -- the agreement was between Ken and
18   Betsy Gross and VSDH.
19                    MR. CHAIKEN: Objection, nonresponsive.
20                    THE COURT: The question was, "So there
21   was no confusion that the party signing was Impact
22   Health and not Ken Gross personally, right?"
23                    THE WITNESS: And I --
24                    THE COURT: That's the question he was
25   asking.
                                                                  197



1                        THE WITNESS: That's the way understood
2    it.       I don't understand the question because the
3    agreement wasn't with Impact Health. It was with Ken
4    and Betsy Gross.
5                        THE COURT: I think you need to rephrase,
6    Mr. Chaiken.
7          Q      (By Mr. Chaiken) My question was -- you just
8    finished telling me that there are times when would sign
9    an agreement as an officer of ImpactHealth, right?
10         A      Yes.
11         Q      And when you did that, you would identify
12   yourself as an officer of ImpactHealth, right?
13         A      Yes, sir.
14         Q      A corporation, right?
15         A      Yes, sir.
16         Q      And the reason that you would sign an agreement
17   on behalf of Impact Health as an officer of Impact
18   Health was because a human being would have to sign a
19   document for Impact Health, right?
20         A      Yes, sir.
21         Q      You understood that concept, right?
22         A      Yes.
23         Q      Okay.    And you likewise understood that the
24   reason you would identify yourself as -- were you the
25   president, vice president, or what were you?
                                                             198



1                  MR. ALDOUS: Your Honor, Mr. Gross'
2    corporate dealings are irrelevant to this proceeding.
3                  THE COURT: Sustained.
4                  MR. CHAIKEN: Your Honor, may we approach?
5                  THE COURT: You may.
6                  (Sidebar conference held)
7                  THE COURT: Ladies and gentlemen of the
8    jury, the testimony is probably going to be for another
9    35 minutes.   So we'll take a five-minute recess now.
10                 During this recess, you're under the same
11   instruction you've beenpreviously given.    You're not to
12   discuss the case among yourselvesor with anyone else
13   until such time as the case has either been submitted to
14   you for your deliberations or you have been discharged
15   as jurors.
16                 All rise.   The jury is excused.
17                 (Jury exits the courtroom)
18                 THE COURT: You may step down, Mr. Gross
                                                         .
19                 We stand in recess.
20                 THE WITNESS: Thank you, Your Honor.
21                 (Recess taken)
22                 THE COURT: You may bring in the jury.
23   All rise.
24                 (Jury enters the courtroom)
25                 THE COURT: You may be seated.
                                                            199



1                   You may proceed, Mr. Chaiken.
2       Q    (By Mr. Chaiken) Mr. Gross, do you know the
3    rule called the statute of frauds?
4       A    No.
5       Q    You never heard of that rule before?
6                   MR. ALDOUS: Your Honor, I just don't get
7    the relevance.
8                   THE COURT: What's the relevance?
9                   MR. CHAIKEN: I believe that he has --
10   well, I don't want to comment in front of the jury.    May
11   we approach?
12                  THE COURT: You may.
13                  (Sidebar conference held)
14                  THE COURT: You may proceed.
15      Q    (By Mr. Chaiken) Mr. Gross, have you ever
16   heard the concept about just agreeing in principle?
17      A    Yes.
18      Q    Do you understand that in order to sell a piece
19   of property, the agreement has to be in writing?
20      A    Not always, but in this case it was.      In most
21   cases it probably is, but --
22      Q    Do you know that rule of the statute of frauds
23   that an agreement regarding the sell of writing --I'm
24   sorry -- the sell of real estate has to be in writing?
25                  MR. ALDOUS: Your Honor, that's asking him
                                                               200



1    for a legal conclusion.
2                      THE COURT: Sustained.
3       Q       (By Mr. Chaiken) And you're not aware,
4    correct?
5       A       No, sir.
6       Q       You had a lawyer in the transaction, correct?
7       A       On that one part, yes, sir.
8       Q       And you don't know what the legal effect is of
9    an individual signing his name to a contract designating
10   his capacity as an officer of an entity, correct?
11      A       I have an opinion, but I'm not a lawyer.
12      Q       Okay.   And in this case, you will agree --
13   referring to Gross Exhibit 3, this is the signature page
14   on the contract; is that right?
15      A       Yes, sir.
16      Q       That's the only place that we see the parties'
17   signatures, right?
18      A       Yes, sir.
19      Q       And the parties -- the parties were buyer,
20   Kenneth P. Gross, and that's you, right?
21      A       Yes, sir.
22      Q       And you were acting as an individual, right?
23      A       Yes.
24      Q       So you just signed your name, right?
25      A       Yes.
                                                             201



1       Q     All right.   Then it says buyer, Betsy D. Gross.
2    Do you see your wife's signature there?     Recognize it?
3       A     Yes.
4       Q     And she was a buyer, right?
5       A     Yes.
6       Q     And she was acting in her individual capacity,
7    right?
8       A     Yes.
9       Q     And so she signed it personally.     You
10   understood that, right?
11      A     Yes.
12      Q     And then you see seller, VSDH Vaquero Venture,
13   Ltd. Then it says VSDH Homes, comma, Inc., GP, right?
14      A     Yes.
15      Q     And above that line you see a signature, right?
16      A     Yes, sir.
17                   MR. CHAIKEN: May I proceed, Judge?
18                   THE COURT: There was no reason for you to
19   stop.
20                   MR. CHAIKEN: Your Honor was coughing.
21                   THE COURT: You may proceed.
22                   MR. CHAIKEN: Thank you.
23      Q     (By Mr. Chaiken) And you see next to
24   Mr. Hickok's signature the initials VP, right?
25      A     Yes, sir.
                                                              202



1       Q     All right.   And you understood that VP meant
2    vice president, right?
3       A     Yes.
4       Q     All right.   And you don't see Mr. Hickok's
5    signature anywhere on Exhibit 3 -- feel free to look at
6    that.   It's there -- in any other capacity other than as
7    vice president of the seller, VSDH Vaquero, Ltd., and
8    it's general partner, VSDH Homes, Inc., GP, correct?
9       A     I wouldn't agree with that.     No.
10      Q     You see his signature someplace else on the
11   document?
12      A     No.    I see it on that page.
13      Q     The exhibit is in front of you, Number 3.
14      A     Yes.
15      Q     Where else do you see Mr. Hickok's signature?
16      A     I thought you asked where do I see his
17   signature as VP.    I see his signature, which to me
18   represented that he was signing it under both VSDH and
19   personally guaranteeing.
20                   MR. CHAIKEN: Objection, nonresponsive.
21   Move to strike.
22                   THE COURT: Overruled. I think he's
23   explaining what he thought he heard you asking.   I think
24   you might need to ask another question or re-ask it.
25      Q     (By Mr. Chaiken) My question to you,
                                                             203



1    Mr. Gross, is:    Where do you see a signature by
2    Mr. Hickok, other than the one that we're looking at on
3    the screen right now that says VP of the seller,VSDH
4    Vaquero, Ltd., VSDH Homes, Inc., GP?
5       A       Right there, yes.   That's the only one.
6       Q       That's the only signature, right?
7       A       Yes, sir.
8       Q       You don't see a signature anywhere on that
9    document that looks like yours, where it says Douglas M.
10   Hickok, correct?
11      A       No, sir.
12      Q       Above a line that says Douglas M. Hickok,
13   right?
14      A       No, sir.
15      Q       And Mr. Hickok's signature as vice president of
16   the seller, VSDH Vaquero Venture, Ltd., and VSDH Homes,
17   Inc., GP is a lot like those signatures that you put on
18   documents in your capacity as an officer for Impact
19   Homes when you are signing in a corporate capacity,
20   correct?
21                  MR. ALDOUS: Objection, Your Honor. He's
22   asking this witness for a legal conclusion as to the
23   effect of his signature.
24                  MR. CHAIKEN: I'm not asking for the
25   effect.
                                                            204



1                   THE COURT: Sustained.
2       Q      (By Mr. Chaiken) Mr. Gross, when you are
3    signing your name to a document on behalf of Impact
4    Homes, the corporation that you identified, as an
5    officer, you sign it to identify yourself as an officer
6    just like Mr. Hickok did in this instance, correct?
7       A      No, sir.
8       Q      You don't?
9       A      No, sir.
10      Q      You just sign your name personally?
11      A      Yes, sir.
12      Q      Okay.   But here Mr. Hickok didn't sign his name
13   personally.    He signed it as VP of VSDH Vaquero Venture,
14   Ltd., right?
15                  MR. ALDOUS: Objection, Your Honor. He's
16   asking the witness for a legal conclusion.
17                  MR. CHAIKEN: Not a legal conclusion.
18                  MR. ALDOUS: The effect of his signature.
19                  MR. CHAIKEN: I'm not asking for the
20   effect.
21                  THE COURT: Hang on.   Rephrase your
22   question, Mr. Chaiken.
23      Q      (By Mr. Chaiken) You testified earlier in
24   response to Mr. Shaw's questions that the documents were
25   not prepared properly.    Remember giving that testimony?
                                                             205



1       A    Yes.
2       Q    And that is your belief, correct?
3       A    If those were -- I don't know if those were my
4    exact words, but I had hoped that you two --
5                   MR. CHAIKEN: Your Honor, I move to strike
6    anything after, "Those were not my exact words."
7                   THE COURT: Are you addressing the Court?
8                   MR. CHAIKEN: My apologies.   I move to
9    strike the attempt toanswer beyond the answer to the
10   question as nonresponsive.   He said --
11                  THE COURT: I'm looking at what he said.
12                  MR. CHAIKEN: Okay.
13                  THE COURT: Let him finish his answer.
14   Then I'll consider your objection.
15                  THE WITNESS: Could you rephrase the
16   question, please?
17      Q    (By Mr. Chaiken) In response to Mr. Shaw's
18   questions earlier, referring to the guarantee issue,you
19   stated the documents were not prepared properly.
20   Remember giving that testimony?
21      A    Yes.
22                  MR. CHAIKEN: Reserving the right to call
23   Mr. Gross in the defendants' case in chief if necessary.
24   At this time I pass the witness.
25                  THE COURT: It is now 5:14.   We will
                                                             206



1    recess for the day.
2                  MR. ALDOUS: I have no further questions
3    of this witness.
4                  THE COURT: Okay.     The witness is excused.
5    You may step down.
6                  THE WITNESS: Thank you, Your Honor.
7                  THE COURT: I repeat.     We will recess for
8    the day.   It is now 5:14 p.m.   The jury will return
9    tomorrow at 9:30 a.m.
10                 During this overnight recess, you're under
11   the same instructions you have been previously given.
12   You're not to discuss this case among yourselves or with
13   anyone else until such time as the case has either been
14   submitted to you for your deliberationsor you have been
15   discharged as jurors.     The jury is excused for the
16   evening.
17                 All rise.
18                 (Jury exits the courtroom)
19                 THE COURT: All right.     We stand in recess
20   for the evening.
21                 Just so that you know what your totals are
22   at this point in time, the plaintiff has used -- as I
23   stated before, 3 hours and 39 minutes.    Defendants have
24   used 2 hours and 32 minutes.
25                 MR. CHAIKEN: Two, 20, right?
                                                             207



1                  THE COURT: Two hours and 32 minutes.
2                  MR. ALDOUS: The Grosses would offer
3    Exhibits 115 and 116, which -- I apologize to the Court.
4    I didn't realize they were not admitted.
5                  THE COURT: Mr. Shaw?
6                  MR. SHAW: May I see them, Judge?    The
7    photos themselves, I don't have any objection to. I want
8    to see if there's other information on them.
9                  THE COURT: They're just photos.
10                 MR. ALDOUS: Just photos.
11                 MR. SHAW: Okay, just photos, I have no
12   objection, Your Honor. Well, I do have an objection,
13   Judge.   When they say -- they say this information.
14   They have information on themother than being just --
15                 THE COURT: The jury's gone.      Youmay
16   speak at a normal volume.
17                 MR. SHAW: Okay.   I have an objection.    I
18   don't have any objection to the photos, but the text I
19   do have objection to.
20                 THE COURT: Where it says Westlake, 2.5
21   million?
22                 MR. SHAW: Price and the whole thing.
23                 THE COURT: The problem is the jury's
24   already seen it
                   .
25                 MR. SHAW: Yeah, but it's sure not
                                                             208



1    admitted into evidence.
2                   THE COURT: And you didn't object to it
3    before.
4                   MR. SHAW: I didn't, but it wasn't offered
5    in evidence.
6                   THE COURT: Well, that's because everybody
7    assumed it was and --
8                   MR. ALDOUS: Do you mind if I ask counsel
9    because with regard to the pre -- what are you referring
10   to?
11                  MR. SHAW: Any of this, any of it,
12   anything other than the photo.
13                  MR. CHAIKEN: You know, I have a problem
14   as well.    I mean, it's not authenticated and it appears
15   to be printed off the Internet by Cooper & Scully. And,
16   I mean, there's all kinds of comments with regard to --
17   it's not been authenticated.   Nobody has proventhem up.
18                  THE COURT: It was authenticated.
19                  MR. SHAW: I'm not worried itfairly and
20   accurately represents.   I would agree to that part of
21   it.
22                  THE COURT: The witness authenticated it
23   when he said that these are pictures of the property,
24   and he --
25                  MR. CHAIKEN: That's what he said that
                                                            209



1    they're pictures of the property
                                   .
2                  THE COURT: -- talked about the
3    improvement that they made.   He talked about the
4    location.
5                  MR. ALDOUS: He said what they listed it
6    for, and he said they listed it with Roxann Taylor.
7                  MR. SHAW: He did.
8                  MR. ALDOUS: So, I mean, I offer it.
9                  THE COURT: All right.   So your
10   objections, Ms. Shaw.
11                 MR. SHAW: My objections are to the text
12   included with any of the photos is objectionable because
13   there's no predicate to support the text.   And if there
14   is, it's hearsay.
15                 THE COURT: And the text that you're
16   referencing would be the location of the property --
17                 MR. SHAW: Well --
18                 THE COURT: -- and the listed value and
19   the name of the realtor?
20                 MR. SHAW: Yes, Your Honor, anything like
21   Westlake, two and a half million, you know, that sort of
22   thing.   I don't think it's the endof the world, but --
23                 THE COURT: I believe there was testimony
24   as to that, though.
25                 MR. SHAW: Well, there was, but --
                                                             210



1                    THE COURT: Okay.
2                    MR. SHAW: -- I'm not saying that's
3    anything new.    It's just --
4                    THE COURT: You just don't like it?
5                    MR. CHAIKEN: I would withdraw my
6    objection.
7                    THE COURT: All right.   Exhibits 15 and 16
8    are admitted -- 115 and 116 are admitted.
9                    And I would admonish the parties.   Please
10   be careful because there is a large number of exhibits.
11   And it's possible to inadvertently, as in this instance,
12   present something.
13                   (Proceedings concluded for the day)
14
15
16
17
18
19
20
21
22
23
24
25
                                                        211



1    STATE OF TEXAS         )
2    COUNTY OF DALLAS       )
3            I, Cathye Moreno, Official Court Reporter in
4    and for the County Court of Dallas County, Texas, County
5    Court At Law Number One, State of Texas, do hereby
6    certify that to the best of my ability the above and
7    foregoing contains a true and correct transcription of
8    all portions of evidence and proceedings requested in
9    writing to be included in the Reporter's Record, in the
10   above-styled and -numbered cause, all of which occurred
11   in open court or in chambers and were reported by me.
12           I further certify that this Reporter's Record
13   of the proceedings truly and correctly reflects the
14   exhibits, if any, admitted by the respective parties.
15           WITNESS MY OFFICIAL HAND this the 12th day of
16   October, 2015.
17                      /s/ Cathye G. Moreno
18                      Cathye G. Moreno, Texas CSR #6076
                        Expiration Date: 12/31/16
19                      Official Court Reporter
                        County Court at Law No. 1
20                      600 Commerce Street, Suite 550
                        Dallas, Texas 75202
21                       cathyemoreno@sbcglobal.
                                              net
                        (214)653-7496
22
23
24
25
TAB 27
                                                              1



1                         REPORTER'S RECORD
                       VOLUME 5 OF 10 VOLUMES
2                      CAUSE NO. CC-09-05232-A

3    VSDH VAQUERO VENTURE, LTD.       )IN THE COUNTY COURT
                                      )
4      Plaintiff/Counter-Defendant, )
                                      )
5    V.                               )
                                      )
6    KEN GROSS and BETSY GROSS        )AT LAW NO. 1
                                      )
7      Defendants/Counter-Plaintiffs, )
                                      )
8    V.                               )
                                      )
9    EVAN L. SHAW and DOUGLAS M.      )
     HICKOK                           )
10                                    )
       Intervenors/Counter-Defendants,)DALLAS COUNTY, TEXAS
11
12
13   -------------------------------------------------------

14                       TRIAL ON THE MERITS
15   -------------------------------------------------------
16
17              On the 17th day of June 2015, the following

18   proceedings came on to be heard within the presence of

19   a jury in the above-entitled and -numbered cause before
20   the Honorable D'METRIA BENSON
                                 , judge presiding, held in
21   Dallas, Dallas County, Texas.
22              Proceedings reported by computerized stenotype
23   machine.    Reporter's Record produced by computer-aided
24   transcription.
25
                                                  2



1                        APPEARANCES:
2    MR. STEVEN E. ALDOUS
     SBN 00982100
3    Forshey Prostok, LLP
     500 Crescent Court
4    Suite 240
     Dallas, Texas 75201
5    (214)716-2100
     ATTORNEY FOR DEFENDANTS/COUNTER-PLAINTIFFS
6    KEN GROSS and BETSY GROSS
7       - AND -

8    MR. KENNETH B. CHAIKEN
     SBN 04057800
9    Chaiken & Chaiken, PC
     Legacy Town Center III
10   5801 Tennyson Parkway
     Suite 440
11   Plano, TX 75024
     (214)265-0250
12   ATTORNEY FOR INTERVENOR/COUNTER-DEFENDANT
     DOUGLAS M. HICKOK
13
        - AND -
14
     MR. EVAN LANE (VAN) SHAW
15   SBN 18140500
     Law Offices of Van Shaw
16   2723 Fairmount Street
     Dallas, Texas 75201
17   (214) 754-7110
     ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT
18   VSDH VAQUERO VENTURE, LTD;
     INTERVENOR, VAN SHAW; and
19   THIRD-PARTY DEFENDANTS
     VSDH VAQUERO HOMES, INC. AND
20   VSDH HOMES, INC.
21
22
23
24
25
                                                                     3



1                            INDEX

2    JUNE 17, 2015                                 PAGE        VOL.
3    PROCEEDINGS..............................          4        5
4    STIPULATION AS TO ATTORNEY FEE SUBMISSION          4        5
5
     GROSSES'
6    WITNESSES          Direct     Cross    Voir Dire          Vol.
     Betsy Gross        11,106    30,99,110     --               5
7
     Roxann Taylor     114,134    128,131,136      --            5
8
9    THE GROSSES REST......
                          ...................           137      5
10   HICKOK'S MOTION FOR DIRECTED VERDICT.....          140      5
11   COURT'S RULING ON DIRECTED VERDICT MOTION           155     5

12   VSDH'S MOTION FOR DIRECTED VERDICT.......              156 5
13   COURT'S RULING ON DIRECTED VERDICT MOTION           158     5
14   BILL OF EXCEPTIONS BY MR. SHAW...........              159 5
15   HICKOK'S
     WITNESS            Direct       Cross     Voir Dire       Vol.
16   Evan Lane Shaw     167,198       187          --            5
17
     END OF PROCEEDINGS.......................           204     5
18
     REPORTER'S CERTIFICATE...................           205     5
19
20                       EXHIBIT INDEX

21   GROSSES'
     NO.     DESCRIPTION             OFFERED   ADMITTED        VOL.
22   36     June 15, 2009 email         82        82            5
             from Ken Gross to
23           Hickok and Shaw
24
25
                                                                4



1                            PROCEEDINGS
2                           June 17, 2015
3                    THE COURT: All right.    Mr. Aldous, you
4    may approach.
5                    MR. ALDOUS: Thank you, Your Honor.    I
6    would like for us to put our agreement on the record
7    regarding submission of attorney's fees to Your Honor.
8                    THE COURT: You may do so.
9                    MR. ALDOUS: It's my understanding that
10   the attorneys --all parties have agreed that the
11   attorney's fees issue will not be submitted to the jury,
12   but will be decided by the Court in a form and fashion
13   that the Court desires, with at least an opportunity for
14   everybody to submit affidavits related to the attorney's
15   fees on the same day and with each party an opportunity
16   to respond to those affidavits.
17                   MR. SHAW: Agreed by VSDH.
18                   MR. CHAIKEN: That's agreed.
19                   THE COURT: So noted for the record.
20                   MR. ALDOUS: Thank you.
21                   (Brief recess taken)
22                   THE COURT: We are on the record.
23                   You may proceed, Mr. Aldous.
24                   MR. ALDOUS: Your Honor, there's been a
25   suggestion by counsel for VSDH that he's going to call
                                                               5



1    two separate types of witnesses; one being Ms. Lash to
2    testify as to a lawsuit the Lashes were involved with in
3    terms of the Grosses and, according to Mr. Shaw, that a
4    finding by a jury of civil fraud.   That evidence is
5    inadmissible for the purpose of Rules 404 through 406
6    and 607 through 609, because it is only offered to show
7    that he committed a fraud in another unrelated matter;
8    and, therefore, he's a bad guy in this case.
9                 The rules, as set forth, do not allow
10   evidence of another wrong to be used to show that
11   someone acted in conformity therewith.   And to the
12   extent that it would be potentially admissible under any
13   exception to that, it would have to be so closely
14   related to be part of the same scheme or is only
15   admissible if they are so connected with the transaction
16   at issue that they may all be parts of a system, scheme,
17   or plan.
18                In this situation, that involved the sale
19   of the Grosses' home, and it related to some -- an
20   allegation of water leaking through the windows of the
21   Grosses' home.   It had nothing to do with this
22   transaction; and, therefore, any evidence that would be
23   offered in that regard would be violative of those
24   rules.
25                The second type of evidence that Mr. Shaw
                                                                 6



1    indicated to the Court was that he would call witnesses
2    to talk about the truthfulness or untruthfulness or
3    whatever character traits of Mr. Gross.    That evidence
4    is likewise inadmissible.    The only time that that is
5    admissible is if a person is charged with an action
6    involving moral turpitude and he introduces evidence of
7    his moral character to fight that, then the defense --
8    or the other side can bring up evidence of specific acts
9    in cross-examination
                        .
10                Even if it's in cross-examination
                                                  , no
11   extrinsic evidence of that can be -- of specific acts
12   can be offered unless it's a conviction of a crime.    And
13   that's not the issue here.    So for those reasons, none
14   of that's admissible.    And if Mr. Shaw's represented to
15   the Court that that's the purpose for calling those
16   witnesses, then they need not be called.
17                THE COURT: Mr. Shaw?
18                MR. SHAW: I appreciate Mr. Aldous telling
19   me who I should and shouldn't call to trial, but I'm
20   going to respectfully decline to follow his advice.    I
21   have prepared a brief.   As I sit here looking at
22   Mr. Aldous' brief, I will call witnesses that will
23   provide --
24                THE COURT: Did you give him a copy of
25   this?
                                                                 7



1                   MR. SHAW: No, Your Honor. I didn't know
2    I was going to file a brief until I read Mr. Aldous'
3    brief.
4                   MR. ALDOUS: Thank you, Your Honor.
5                   MR. SHAW: The facts --
6                   THE COURT: Let's give him a minute to
7    look at it.    We gave you a minute to look at his.
8                   Did you file your brief electronically?
9                   MR. SHAW: I did not.    I just had that in
10   my notebook.   I just had that on my person, so I thought
11   it might be a good proof.
12                  THE COURT: Give me a minute to look at
13   this.
14                  MR. SHAW: Yes, Your Honor.
15                  THE COURT: All right.    You may proceed.
16                  MR. SHAW: I plan to call --
17                  THE COURT: Wait until Mr. Aldous gets
18   here.    I'm sorry.
19                  MR. SHAW: I plan to call several
20   witnesses to testify as to opinion and reputation, which
21   is admissible under Rule 404 of the Texas Rules of
22   Evidence.   And so the -- Mr. Aldous' claims that opinion
23   and reputation are not viable evidence is in error and
24   not in compliance with the Texas law.    Those rules exist
25   to support the claim that when the truth of a person is
                                                                  8



1    at issue, then you can call opinion and reputation
2    witnesses, and that's what I plan to do.
3                   THE COURT: Mr. Aldous?
4                   MR. ALDOUS: I appreciate Mr. Shaw telling
5    me what Texas law says.   But, likewise, I will point out
6    that Rule 404 says when a reputation or character
7    evidence is admissible, I agree that if it is
8    admissible, it's admissible in different ways.     But you
9    have to get to the first part.   That is, "Is it
10   admissible?"   Rule 404 controls this.
11                  Evidence of a person's character is not --
12   or character trait is not admissible for the purpose of
13   proving action in conformity therewith on a particular
14   occasion except if the character of an accused -- that
15   being in a criminal -- by an accused in a criminal case
16   or by the prosecution to rebut this thing or by a party
17   accused in a civil case of conduct involving moral
18   turpitude or by the accusing party to rebut the same.
19                  So what that means is if VSDH had accused
20   Mr. Gross of some -- by pleading of fraud or something
21   of that nature and we had offered evidence of character
22   traits that he's not fraudulent, then they could have
23   cross-examined him on that.   This is not the character
24   of a victim in a criminal case and is not referring to
25   the character of a witness under Rule 607 through 609.
                                                                9



1    Furthermore, evidence of other crimes, wrongs, or acts
2    are not admissible to prove the character of a person to
3    show action and conformity therewith.
4                   So you first have to get to the -- the
5    issue is: Is it admissible?    So in every civil case,
6    what Mr. Shaw is saying, is that any time that somebody
7    -- the jury has to weigh the credibility of the
8    witnesses, you can call people in to say, "No, I know
9    that sorry SOB, and he is not truthful."    And we know
10   that that's not the law.   The jury is the sole judge of
11   the credibility of the witnesses.     And unless it has
12   become an issue based upon the law, you just don't get
13   to get into it.
14                  THE COURT: Mr. Shaw?
15                  MR. SHAW: I don't have to prove, and I'm
16   not going to prove, Mr. Gross' actions.    A specific
17   instance that I am allowed to prove is opinion, opinion
18   and reputation in the community, and that's what I'm
19   going to do.   When Mr. Gross takes the stand and wants
20   the jury to believe him and brings his case, he puts his
21   truthfulness and veracity at issue.    The only way a jury
22   can properly measure that is to hear from witnesses who
23   know of Mr. Gross' truthfulness or veracity by opinion
24   or reputation.
25                  Plaintiff -- VSDH would be prejudiced if
                                                               10



1    it was not allowed to bring community people to testify
2    about the opinion and reputation of Mr. Gross as the
3    statements that Mr. Gross makes in his case about the
4    facts are key.   And this case turns out to be a swearing
5    match, and Mr. Gross' veracity is at issue because of
6    that.
7                 THE COURT: Okay.      I'm not going to allow
8    the character witness testimony.    You can make your
9    offer of proof and bill of exceptions --
10                MR. SHAW: Thank you, Your Honor.
11                THE COURT: -- at an appropriate time.
12                MR. SHAW: Okay.    Thank you.   What about
13   -- is that for both opinion and reputation, Your Honor?
14                THE COURT: Opinion as to?
15                MR. SHAW: The truthfulness of Mr. Gross.
16   I was offering it for two separate -- two separate ways
17   to talk about the veracity of Mr. Gross, by opinion and
18   by reputation.
19                THE COURT: It is for both, because it
20   appears that that's what the rules address, both opinion
21   and reputation testimony.
22                MR. SHAW: All right.     Thank you.
23                THE COURT: Are we ready now to bring in
24   the jury?
25                MR. ALDOUS: Yes, Your Honor.
                                                             11



1                   THE COURT: Mr. Shaw?
2                   MR. SHAW: Yes, Your Honor.
3                   MR. CHAIKEN: Yes, Your Honor.
4                   THE COURT: You may bring in the jury.
5                   All rise.
6                   (Jury enters the courtroom)
7                   THE COURT: You may be seated.
8                   Mr. Aldous, you may call your next
9    witness.
10                  MR. ALDOUS: Your Honor, I would call
11   Betsy Gross.
12                  THE COURT: Raise your right hand, please.
13                  (Witness sworn)
14                  THE COURT: You may be seated.
15                  You may proceed.
16                             BETSY GROSS,
17   having been first duly sworn, testified as follows:
18                        DIRECT EXAMINATION
19   BY MR. ALDOUS:
20      Q       Could you introduce yourself, please?
21      A       Betsy Gross.
22      Q       Betsy, I know that we've covered a lot of stuff
23   and you've been in the courtroom, so I'd like to just
24   get to the part where we start talking about this
25   situation.    First of all, were you involved in the
                                                              12



1    negotiations with VSDH, Mr. Hickok, and Mr. Buttemiller
2    before you guys purchased the house?
3       A       No.
4       Q       All right.   So the house I'm talking about, you
5    know, of course, is 2004 White Wing Cove. So from now
6    on, if I say, "the house," that's the one I'm talking
7    about.    Okay?
8       A       Uh-huh.
9       Q       Did you know -- well, so what was your role
10   with Ken in terms of the house, in buying it?
11      A       So, I was fully aware of all of his discussions
12   and that he was having meetings and that, you know, as a
13   family, that was a group decision.     But he was managing
14   all the interactions between John Buttemiller and Doug
15   Hickok and anyone else.     That was more his -- you know,
16   as a couple, you kind of -- you do this and I do other
17   things.    And I was working and so that was his.
18      Q       By the way, whatis your job?
19      A       I am head of reimbursement for a medical device
20   company.
21      Q       What's the name of the company?
22      A       Intersect ENT.
23      Q       Now back to the house.   So, although you were
24   up to date on stuff, you weren't the one that directly
25   dealt with Mr. Buttemiller or Mr. Hickok in terms of
                                                              13



1    buying the house?
2       A    Correct.
3       Q    Did you have any specific desire to have the
4    personal guarantee part -- language part of the
5    contract?
6       A    Absolutely.    That was something that we had
7    discussed.    And I said I would only feel comfortable
8    doing the deal if there was some language in there that
9    protected us that included a personal guarantee.
10      Q    And from the time that you guys bought this
11   house, what was your plan over the next couple of years
12   in terms of what you were going to do?
13      A    So this was -- it was always intended to be a
14   short-term thing.   We wanted to invest in this house as
15   a business deal for his building business.   It was an
16   opportunity for him to build up a reputation, show the
17   quality of work that he could do.    But it was always
18   intended to be a short-term investment, nothing long
19   term.
20      Q    Now, after you guys moved -- first of all,
21   there was a statement about you guys moving into the
22   house before being permitted to by Mr. Hickok.    Did you
23   guys break into the house and go live there?
24      A    No.
25      Q    Tell us how that happened.
                                                              14



1       A    So we asked for permission and John Buttemiller
2    gave us the key.   And there was an alarm system on the
3    house, so that would have had to have been disengaged.
4    So we were given a key, and there were discussions that
5    happened between Ken and John about giving us temporary
6    ability to live in the house until the deal was --
7                   MR. CHAIKEN: Your Honor, I object to the
8    hearsay portion of it.
9                   THE COURT: Overruled.
10      Q    (By Mr. Aldous) Go ahead.
11      A    -- until the deal was consummated in terms of
12   the details of the rent thatwe were going to pay, which
13   it was a high amount of rent per day.
14      Q    Okay.    Now the -- after you guys moved into the
15   house, did you occasionally run into either Mr. Shaw or
16   Mr. Hickok?
17      A    Yes.
18      Q    Tell us about that, please.
19      A    There were a few different occasions I can
20   think of that I ran into either Mr. Shaw or Mr. Hickok.
21   One is I remember it was -- so we moved into the house
22   around June or July, and I remember meeting --
23      Q    Of 2007?
24      A    I'm sorry.   Of 2007.   And I remember meeting
25   doctor or -- doctor, sorry. I deal with doctors all the
                                                                  15



1    time. I remember meeting Mr. Shaw for the first time at
2    a Christmas party, and he was introduced to me.      And I
3    said something along the lines of, "Oh, it's so nice to
4    meet you. I'm so glad we're doing this deal together
5    and Ken's going to build a great house and it's going to
6    be great." And he was very complimentary and, oh, yeah,
7    you know, we're looking forward to doing this too and
8    yahoo, you know, everything was great.
9       Q       Just very cordial?
10      A       Sure.
11      Q       After the addition was started, did you bump
12   into Mr. Shaw again?
13      A       Uh-huh.
14      Q       Is that a "yes"?
15      A       Yes.    I'm sorry.
16      Q       It's hard to type down, "uh-huh."
17      A       My apologies.   So on another occasion, it was
18   actually in Mexico on a spring break.     I was with my
19   daughter and her friend and her mother and happened to
20   be walking down the street and ran into Van Shaw on the
21   street and said, "Van, Hi. How are you?"       And he said
22   something along the lines of, "Where's Ken?"       And I
23   said, "Oh, he's back working on the house, you know."
24   And he said, "Oh, you ought to come out to our yacht,"
25   he said.
                                                               16



1       Q     Very cordial?
2       A     Very cordial.
3       Q     All right. After the -- you heard testimony
4    from both Ken and Mr. Hickok about the visit that
5    Mr. Hickok made to the home after the construction was
6    started on the addition; is that right
                                          ?
7       A     Yes.
8       Q     Could you tell us what you recall about that
9    visit?
10      A     I distinctly remember that day.    And Ken --
11      Q     Why do you distinctly remember it?
12      A     Well, a few things.    It was the first time that
13   I had ever met Doug.     And I remember that Ken really
14   wanted me to be there and I was running late.    And so by
15   the time I got there, they had already finished touring
16   most of the property.    And so I ran into them when they
17   were in the kitchen and the plans were sprawled all over
18   the kitchen counter and the kitchen table.    And so Ken
19   introduced me toDoug.
20                   And somehow we got into a cordial
21   conversation about kids and college, and he had just
22   gotten back from a trip.    And I distinctly remember they
23   had seen University of Georgia, University ofAlabama,
24   and he talked about University of Texas
                                           and how his son
25   was looking at different schools.    And we were just
                                                              17



1    sharing notes about college tours because we were at
2    that stage as well.
3       Q    During that entire visit, did Mr. Hickok at any
4    time say, "I can't believe you guys started this thing
5    without us"?
6       A    Absolutely not.   To the contrary, I remember
7    saying to him, "Doesn't everything look great?    You just
8    saw everything."   "Oh, yeah.   It looks great, looks
9    fantastic."
10      Q    Any complaints that he raised at that time?
11      A    Absolutely not.
12      Q    Did Mr. Hickok say, "You guys have already
13   breached the contract"?
14      A    Absolutely not.
15      Q    In your mind, was there any -- in your mind,
16   was there any -- ever any question as to what the
17   addition was going to look like in terms of the finish
18   out?
19      A    No.    There wasn't any question to me, for sure,
20   because it was a beautiful house, and we couldn't
21   exactly put something low quality on top of it.   And
22   that wouldn't help Ken's business if he built -- he
23   wanted to use this to market his business.   So he's not
24   going to build an addition that looked ugly and cheap.
25   He had to match the existing quality of the home.
                                                                18



1       Q      And was that always the plan from your
2    perspective?
3       A      Yes.
4       Q      Now after the visit and then completion of the
5    home, you and Ken sent the notice saying we're going to
6    exercise the buyback; is that right?
7       A      Correct.
8       Q      And I notice that you were on some of those
9    emails.   Were you now more involved at this point in
10   terms of the buyback?
11      A      Yes.
12      Q      So when you exercise -- or when you sent the
13   notice on the buyback, what do you recall?
14      A      I remember we had had many conversations.   Ken
15   and I had had many conversations about, well, we have to
16   make a decision.     Do we want to stay here and buy the
17   house?    Do we want to exercise the buyback?   What do we
18   want to do?    And we together made the decision; no, we
19   need to stick with the original plan.    As much as it's a
20   beautiful house, this is not the original plan. We
21   really can't continue to stay here.    We need to exercise
22   the buyback.     So let's make sure we notify them.
23                    And I don't rememberwhy it is that I took
24   the initiative to send the email, but I did.     I probably
25   just said, "If you want, I'll be happy to send it." And
                                                              19



1    I typed it and sent it separately via Federal Express.
2       Q    All right.   And did you get a response that was
3    satisfactory, I guess, to you?
4       A    I got a response that was shocking, but I --
5       Q    What was that?
6       A    I think it was shown in here, but it was the
7    response basically that the company was bankrupt.
8       Q    They used the term insolvent?
9       A    Insolvent. I'm sorry.
10      Q    So just in terms of how this went, after you
11   guys exercised the buyback, who, if anybody, at VSDH did
12   you deal with?
13      A    So my memory is that any communication -- which
14   I have had very little communication with Doug Hickok at
15   all throughout all of this, but any communication at
16   that point really ceased. And now the only
17   communication that existed was between -- was with Van
18   Shaw.
19      Q    All right.   And did you personally speak with
20   Mr. Shaw?
21      A    Yes.
22      Q    Can you -- do you remember when?
23      A    I don't think any phone conversation between me
24   and Mr. Shaw ever happened, but there was a meeting
25   where Ken and I went and met with him at the Vaquero
                                                             20



1    Real Estate office to talk about other options because
2    we said, "Okay. Well, if you're bankrupt, then is there
3    something else we can come up with?   Let's be creative.
4    Is there some way we can make this work out among
5    ourselves? And so --
6                   MR. SHAW: Your Honor, may we approach?
7                   THE COURT: You may.
8                   (Sidebar conference held)
9                   THE COURT: You may proceed.
10                  MR. ALDOUS: Thank you, Your Honor.
11      Q    (By Mr. Aldous) So, Betsy, irrespective of what
12   was actually discussed.   When you and Ken left the
13   meeting with Mr. Shaw, did you have an impression about
14   whether or not VSDH or its members would honor the
15   buyback part of the contract?
16      A    They made it clear that they were not going to.
17      Q    At some point in time after that, you guys
18   hired Roxann Taylor and put the house on the market; is
19   that right?
20      A    Yes.
21      Q    When you guys put the house on the market
22   originally, did you get very much in terms of interest
23   from the purchaser --any purchasing public?
24      A    No.
25      Q    When you -- did you eventually get an offer?
                                                              21



1       A    We eventually did.   Yes.
2       Q    And what is your recollection of that offer?
3       A    I remember that it was -- the price was pretty
4    good given the market was very slow and that it was
5    going to require us to have to find somewhere else to
6    live and move out in ten days.
7       Q    You remember the ten-day part?
8       A    I remember that.
9       Q    Just a moment.   Do you have the notebook up
10   there with you?
11      A    Yes. Which one?
12      Q    It would be the Gross Exhibits, Exhibit 47.
13   It's previously been admitted into evidence.    And
14   the handwriting on here is atrocious.    Or maybe it's
15   just my eyes are atrocious because I can see it pretty
16   good right now.
17                  If you see, this is the contract between
18   you and Ken and Melissa Browning.    Do you see that?
19      A    Yes.
20      Q    And the purchase price, the price that she
21   agreed to pay there is $2,415,600?
22      A    Yes.
23                  MR. ALDOUS: May I approach, Your Honor?
24                  THE COURT: You may.
25                  MR. ALDOUS: Your Honor, would you mind if
                                                                22



1    I put it over there?
2                   THE COURT: That's fine.
3                   MR. ALDOUS: Because then that way it's --
4    everybody can see it and I don't kill Cathye.   I'll try
5    not to kill anybody.
6       Q    (By Mr. Aldous) Now have you gone and looked at
7    the settlement statement that is Exhibit 42, the
8    settlement statement from your guys sale of the house to
9    Ms. Browning to determine the damages that you believe
10   you guys suffered as a result of the non-buyback and the
11   breach of contract?
12      A    Yes.
13      Q    Exhibit 42 is the settlement statement for that
14   sale, right?    Do you have it up there in front of you?
15      A    I don't have it.    Oh, that's 42?
16      Q    Yeah.    Sorry.
17      A    Yes, I have it.
18                  MR. ALDOUS: All right.    May I approach
19   again, Your Honor?
20                  THE COURT: You may.
21      Q    (By Mr. Aldous) Now you remember from the --
22                  THE COURT: You need to move that forward
23   just a little bit.
24                  MR. ALDOUS: This way?
25                  THE COURT: Yes.
                                                                   23



1                      MR. ALDOUS: All right.
2          Q      (By Mr. Aldous) The price that they agreed to
3    buy it back from -- that is VSDH was $2,851,871, right?
4          A      Correct.
5          Q      I'm going to write that there.   Okay?
6          A      Okay.
7          Q      Now in terms of the sales price that you guys
8    got, you got $2,415,600, right, that's reflected?
9          A      Correct.
10         Q      Now, but that's not the end of the story, is
11   it?       Didn't you guys have to pay a bunch of fees and
12   things like that in the sale with Ms. Browning?
13         A      Correct.   So since we had to sell the house
14   since they didn'
                    t buy it back, then we had to pay all
15   the realtor's fees and the closing cost.
16         Q      All right. So if we look at Exhibit 42, for
17   instance, the realtor fee is reflected on here.       Well,
18   so if you see on the right-hand side
                                        , it says summary of
19   seller's transaction. Do you see that?
20         A      Correct.
21         Q      And that summary of the seller's transaction
22   starts with the amount that -- the contract sales price,
23   right?
24         A      Correct.
25         Q      And then after that, you had to pay $108,000
                                                                 24



1    for the -- $108,702 for the realtor's fee, right?
2       A      That's right.
3       Q      And that is reflected on Line Number 703 on the
4    second page, right?
5       A      Correct.
6       Q      In addition to that, you had to pay the title
7    -- a title fee.      And I don't know if that's title
8    insurance or what.     Do you know what that is?
9       A      It looks like title insurance of $11,863.
10      Q      And that's on Line 1108?
11      A      Yes.
12      Q      I have to write better.
13                    Now in addition to that, you have, for
14   instance, the Texas certification from HUD or tax
15   certification I guess is what it is, which is only
16   $45.11.   But all of these are listed on Exhibit 42,
17   right?
18      A      Correct.
19      Q      So the tax certification is $45.11 and then you
20   have the release fee -- I'm sorry, the guarantee fee
21   from HUD, which is $5.     And then you had the -- what's
22   the next fee?
23      A      I'm not sure which order you want to go in, but
24   there was a government recording and transfer charge of
25   $48.
                                                               25



1       Q    Right.   Okay.
2       A    There is a home warranty.     She wanted a home
3    warranty on the home for $950.
4       Q    All right.
5       A    There's a transferfee to the homeowner's
6    association of $925.
7       Q    Okay.
8       A    There's homeowner's association dues.
9       Q    Well, you wouldn't have had to pay -- you only
10   paid for the dues up to the time you used it, right?
11      A    Right. Correct.
12      Q    What about a resale certificate from HUD for
13   $274?
14      A    Oh, yeah.     I'm sorry.   I missed that one.
15      Q    And then you also had the escrow?
16      A    Of $2,500.     There was a pool -- it was a minor
17   pool repair issue of $658.
18      Q    All right.     Now if you add up all those and you
19   take it from the sales price or actually added back into
20   this, the number comes outs to be approximately
21   $562,241.55, right?
22                MR. CHAIKEN: Leading. I'm sorry.
23   Objection, leading.
24                THE COURT: Rephrase.
25      Q    (By Mr. Aldous) So we did the math earlier so
                                                              26



1    that we don't have to do the math now.   Do you recall
2    what the math said?
3       A    I remember that the math was somewhere around
4    $562,000.
5       Q    Do you recall if the number would have been
6    $241?
7       A    That number sounds approximately correct.
8       Q    All right.    So at the end of the day, the
9    failure or the refusal of VSDH to buy back in accordance
10   with what you guys thought you had agreed and what you
11   ended up getting out --
12                   MR. CHAIKEN: I'm sorry, Your Honor.
13   Objection, leading.
14                   THE COURT: He hasn't finishedthe
15   question yet.
16                   MR. CHAIKEN: He began by leading.
17                   THE COURT: Overruled.
18      Q    (By Mr. Aldous) And the -- less what you got on
19   the sale, adding back in all the fees you had to pay,
20   what is the total damages that you guys suffered?
21      A    As a result of them not buying -- as a result
22   of VSDH not buying the property back as they originally
23   said they would, our loss was about $562,000.
24      Q    Now, in addition to the $562,000 that you guys
25   lost in the sale, did you also have some additional
                                                               27



1    things that ended up that you had put into the house
2    that you ended up not being able to get anything back
3    for it?
4       A      So there was like as part of the sale, the
5    person who purchased the house also said they wanted to
6    buy all the media equipment that was in the movie room,
7    which was not surprising. And that was about $10,000
8    worth of equipment and screens.    And then there was the
9    furniture in the -- so the addition that we put on, they
10   loved all the furniture that we put in.   So they wanted
11   all the media furniture, so there was about $10,000
12   worth of furniture that she purchased from us.
13      Q      Now in terms of -- when you say, "purchased,"
14   there was no extra money that she gave you?
15      A      No.   She said as part -- "I'll buy the house
16   for this price and I want you to throw in those things."
17   So we had paid for those things, and then she said it
18   was kind of a contingency of her offer.
19      Q      I see.   Now, Mrs. Gross, reviewed in your
20   perspective, would you have, as a spouse, agreed to do
21   this deal without the personal guarantee language being
22   in the contract?
23      A      Never.
24      Q      And if they'd come back to you, that is VSDH,
25   to you and your husband and said, "No, we're not
                                                                  28



1    personally guaranteeing this," what would you have done?
2          A      Bought another house.
3          Q      A different house?
4          A      Correct.   There are many options available.
5                      MR. ALDOUS: All right. Thank you for
6    your time.      I'll pass the witness.
7                      THE COURT: Mr. Shaw?
8                      MR. CHAIKEN: Can you switch places with
9    me?       Thank you.
10                     Can you give us just a moment, Your Honor.
11                     THE COURT: So you're going togo next
12   instead of Mr. Shaw?
13                     MR. CHAIKEN: Yes, Your Honor.    I think
14   I'm going to proceed here.
15                     MR. ALDOUS: Your Honor, do you mind if I
16   move the easel so that if they have to exit --
17                     THE COURT: You may.
18                     MR. ALDOUS: -- the jury room, I don't
19   want them to run into it and hurt themselves.
20                     MR. CHAIKEN: May I approach?
21                     THE COURT: You may approach.    And he's
22   willing to let you use his easel.        You may do so.
23                     MR. CHAIKEN: It doesn't matter to me
24   which easel we use.       Can I set it up over there --
25                     THE BAILIFF: Same place.
                                                            29



1                 MR. CHAIKEN: -- if that's okay with you.
2                 THE COURT: That's fine.
3                 MR. CHAIKEN: May I go place this on the
4    easel?
5                 THE COURT: You may.
6                 MR. CHAIKEN: Thank you.
7                 MR. ALDOUS: Your Honor, a couple of the
8    jurors are raising their hands
                                 .
9                 THE COURT: Yes.
10                JUROR ONE AND TWO: May we move up to the
11   top?
12                THE COURT: Yes.
13                You need to move that over further to the
14   right and a little forward, Mr. Chaiken.
15                MR. CHAIKEN: Oh, sure.    Move it over?
16                THE COURT: A little to the right and a
17   little forward.
18                MR. CHAIKEN: To the right and forward.
19   I'm happy to do exactly that.   I got it.
20                THE COURT: Can you see that, Mrs. Gross?
21                THE WITNESS: Yes.
22                THE COURT: Yes, that's fine.
23                MR. CHAIKEN: Can the jurors see it?   Oh,
24   good.
25                THE COURT: You may approach.
                                                                30



1                     MR. CHAIKEN: May I proceed, Your Honor?
2                     THE COURT: You may.
3                     MR. CHAIKEN: Thank you.
4                          CROSS-EXAMINATION
5    BY MR. CHAIKEN:
6       Q       Good morning, Mrs. Gross.
7       A       Good morning.
8       Q       You and I have never actually personally met;
9    is that correct?
10      A       Correct.
11      Q       Other than in passing here in the courtroom
12   when we've been down here from time to time
                                               .       You didn't
13   give a deposition in this case or anything of that
14   nature, correct?
15      A       Correct.
16      Q       You just finished testifying in response to
17   Mr. Aldous' questions about a sale of the house that
18   we've been talking about to a third party, right?     You
19   and Mr. Gross made a voluntary decision to sell the
20   house to a lady by the name of Melissa Browning,
21   correct?
22      A       No.   I would not call it voluntary.
23      Q       Somebody put a gun to your head and say, "Sell
24   the house"?
25      A       Not a gun to my head; although, that did happen
                                                                31



1    to me two weeks ago, by the way.     But --
2       Q    That's terrible.    I'm sorry.
3       A    Yeah.
4       Q    So Mrs. Gross --
5       A    But --
6       Q    Mrs. Gross, excuse me, Mrs. Gross.
7       A    Sorry.
8       Q    The -- you-all hired a real estate broker named
9    Roxann Taylor to list the property for sale, correct?
10      A    Correct.
11      Q    Okay.     And that was prior to September 1st of
12   2009, right?
13      A    Correct.
14      Q    And that was a conscious decision that you and
15   your husband, Ken Gross, made sometime in July or August
16   of 2009, right?
17      A    Correct.
18      Q    Okay.     And you and your husband had been
19   involved in building houses and selling houses to other
20   people, right?
21      A    I'm not involved in the building and selling of
22   houses that Impact Estates builds.
23      Q    But your husband is, right?
24      A    That's his business.    Yes.
25      Q    Okay. And he markets those properties and
                                                               32



1    sells those properties, right?
2       A     Correct.
3       Q     And if you had wanted to do so, when you
4    decided -- your husband decided to voluntarily sell the
5    house back in 2009 before September of 2009, you could
6    have sold it by owner or through Impact Estatesif you
7    wanted to, correct?
8       A     Impact Estates is not a real estate company, so
9    I would think you have to be a real estate company to
10   sell a house.    We could have done a "for sale by owner,"
11   but --
12      Q     But you elected not to do so?
13      A     -- I don't think that's required
                                            .
14                   THE COURT: Mr. Chaiken, let her finish
15   her answers before you --
16                   MR. CHAIKEN: Forgive me.      I didn't mean
17   to interrupt.
18                   THE COURT: And then she will show you the
19   same courtesy, okay?    Only one person can talk at a
20   time.
21                   You may finish, Mrs. Gross.
22                   THE WITNESS: Thank you.
23      Q     (By Mr. Chaiken) Now, bottom line is you and
24   your husband, just like you made a conscious decision to
25   sell the house before September 1st of 2009, made a
                                                              33



1    conscious decision to hire Ms. Taylor to list the
2    property and sell it, right?
3       A     We were forced to do that.     Yes.
4                    MR. CHAIKEN: Objection, nonresponsive.
5                    THE COURT: Overruled.
6       Q     (By Mr. Chaiken) You made the decision with
7    your husband, correct?
8       A     Correct.
9       Q     VSDH didn't tell you, "Go sell the house,"
10   right?
11      A     They told us they were not going to buy back
12   the house.
13      Q     Okay. And you chose the timing of the sale of
14   the house, correct, you and your husband?
15      A     Yes.
16      Q     Okay. You chose when to list it, right?
17      A     Yes.
18      Q     You chose when to have it marketed by
19   Ms. Taylor?
20      A     Yes.
21      Q     You decided and chose to pay Ms. Taylor -- is
22   it Miss Taylor or Mrs. Taylor -- a commission if she
23   sold the house, right?
24      A     Correct.
25      Q     These were decisions that you and your husband
                                                                 34



1    made on your own, correct?
2       A       We chose to do that when we were forced to do
3    that.   Yes.
4       Q       I understand that it's your contention that you
5    were forced to do it, okay?     The point I'm making is
6    these were decisions that you and your husband made on
7    your own, correct?
8       A       Based on the response from VSDH, that is the
9    decision that we made. Yes.
10                     MR. CHAIKEN: Your Honor, object to the
11   nonresponsive portion.     Move to strike.
12                     THE COURT: Overruled.
13      Q       (By Mr. Chaiken) Mrs. Gross, you just finished
14   testifying to this jury that in May or late April of
15   2009, you and your husband made a decision that you were
16   going to exercise the buyback option so that you could
17   move to another house.     It was part of your plan.   Do
18   you recall that testimony?
19      A       Yes.
20      Q       You also just told the ladies and gentlemen of
21   the jury that you sold the house to Ms. Browning,
22   correct?
23      A       Yes.
24      Q       And you sold it when you did because you were
25   trying to facilitate that plan to move someplace else,
                                                                35



1    correct?
2       A       Can you restate your question?
3       Q       Yes.    You and your husband decided you were
4    moving someplace else, and you wanted to be rid of the
5    house that you-all had purchased from VSDH, right?
6       A       We wanted to exercise the buyback option, yes.
7       Q       So that you could move to another house, right?
8       A       Correct.
9       Q       Okay.    And you did move to another house,
10   right?
11      A       Correct.
12      Q       Are you still in that house?
13      A       No.
14      Q       Okay.    Now you voluntarily entered into a
15   contract with Ms. Browning to sell the house to her for
16   whatever the purchase price was, correct?      You and your
17   husband agreed this is what we will sell the house to
18   this woman for, right?
19      A       After asking VSDH whether or not --
20      Q       Right or wrong?
21      A       -- we should --
22      Q       Right or wrong?
23                     THE COURT: Mr. Chaiken, let her finish
24   her answer.       If you don't like it, you can object to it.
25                     MR. CHAIKEN: I will.
                                                              36



1       A     We asked VSDH if they -- we gave them an option
2    as to whether or not we should move forward with the
3    deal.   They never responded; therefore, we saw there was
4    no other option other than to protect ourselves and sell
5    the home.
6       Q     When did you offer VSDH the opportunity to buy
7    the property for 2.4 -- whatever the price you sold it
8    to Ms. Browning for?
9       A     We had a buyback option agreement with VSDH at
10   a set price that we all agreed to.   So --
11      Q     Maybe -- oh, I'm sorry.   I didn't mean to
12   interrupt.   Please continue.
13      A     We had a buyback agreement with VSDH that VSDH
14   would buy back the house at a certain price.
15      Q     Right.   And the agreement that you had, the
16   buyback agreement, was that VSDH, if it was obligated to
17   do so under the buyback agreement, would pay $2.8
18   something million on September 1st, 2009, right?
19      A     Yes.   But we had to notify them on May the 1st
20   of that decision.
21      Q     Right.   And prior to that date 9-1-09, you and
22   your husband made a decision to enter into a contract
23   with Ms. Browning to sell the property to her for just
24   under $2.5 million, right?
25      A     But we never would have done that if -- yes, we
                                                                   37



1    did. But we never would have done that if VSDH had
2    honored the buyback agreement.
3                        MR. CHAIKEN: Your Honor, I object to the
4    nonresponsive portion of the question.
5                        THE COURT: Overruled.
6                        MR. CHAIKEN: I didn't ask her why she did
7    it.       I asked her whether she did it.
8                        THE COURT: Overruled.
9          Q      (By Mr. Chaiken) And my question to you
10   earlier -- and I appreciate your telling me -- is:          When
11   did you offer -- prior to September 1st, 2009, when did
12   you offer VSDH the opportunity to buy the house before
13   September 1st, 2009 for the same price that you agreed
14   to sell it to Ms. Browning?
15         A      We didn't offer that option to them.
16         Q      Okay.
17         Q      Now you were in the courtroom yesterday when
18   your husband testified, right?
19         A      Yes.
20         Q      Okay.    Now do you recall that your husband
21   right at the end of his testimony yesterday told the
22   jury that the documents, the closing documents -- and he
23   had referred to a guarantee -- had not been prepared
24   correctly?      Remember that testimony at the very end of
25   his -- of his examination yesterday?
                                                              38



1       A    I don't rememberexactly what he said. No.
2       Q    Okay.    And if the documents were not prepared
3    correctly, you and Mr. Gross nevertheless decided to
4    close the transaction when you bought the house, right,
5    whether the documents were correct or incorrect?
6       A    Can I answer that question with more than a
7    "yes" or "no"?
8       Q    No.   I'd just like you to answer my question.
9    did you close the transaction?
10      A    Did we -- we signed the documents before they
11   signed the documents.
12      Q    I understand.
13      A    That is correct
                           .
14      Q    And whatever documents were prepared, were not
15   prepared or correctly prepared or incorrectly prepared,
16   you closed the transaction anyway, right?
17      A    We thought the documents were prepared
18   correctly at the time that we signed them.
19      Q    Okay.    So you disagree with your husband who
20   testified yesterday that the documents were not prepared
21   correctly?
22                 MR. ALDOUS: Your Honor, I would just
23   object to asking this witness whether she recalls what
24   the testimony was yesterday.   I mean, I don't have a
25   problem with asking if she disagrees or not, if he said.
                                                              39



1                   THE COURT: Rephrase, Mr. Chaiken.
2       Q    (By Mr. Chaiken) If your husband testified to
3    the jury yesterday that the documents were not prepared
4    correctly, you would disagree with him, right?
5       A    I'm not sure the context in which he answered
6    that question.   I don't know exactly how the question
7    was phrased and exactly how the question was answered.
8       Q    Thank you.
9       A    It would not be the first time I would disagree
10   with my husband.
11      Q    I bet.
12      A    Well, that wasn't nice.
13      Q    You have a book upthere.      And I'd like you --
14   and it's what we've been referring to as the Grosses'
15   Exhibits.   And that's the book you were talking with
16   Mr. Aldous about a few minutes ago.    I'm sorry.   Give me
17   one second here.   My book came apart.
18                  Now, you were in the courtroom when
19   Exhibit No. 1, this document right here, was discussed
20   with your husband, right?
21      A    Yes.
22      Q    And you recall, don't you, that your husband
23   acknowledged that the language that we see here in terms
24   of an addition to the -- to the addendum to the contract
25   was language that he wrote and he proposed, right?
                                                                 40



1       A    No.     I disagree with that.
2       Q    He didn't write that language and he didn't
3    propose it in his email to Mr. Buttemiller?
4       A    He sent that email to John Buttemiller with
5    that language which was recommended by an attorney with
6    whom he consulted.      And the attorney wrote the language
7    and gave it to Ken, and Ken then in turn said to John
8    Buttemiller this is language which I want to have added
9    to the contract.
10      Q        Okay.    But VSDH and its lawyers didn't put
11   this language in the contract, right?
12      A    Well, VSDH wrote the contract and the language
13   is in the contract.
14      Q    So is it your testimony that VSDH or its
15   lawyers put this language in the contract, that they --
16   that this was their language and they wrote the contract
17   with this languagein it?
18      A    No.     What I'm saying is we submitted, as is
19   proven in this email, we said we want this language in
20   the contract.       And that language is, in fact, in the
21   contract.    How it got in there, I don't know, but it's
22   in there.
23      Q    Okay.       Well, yesterday your husband testified
24   that the contract was written by VSDH and its lawyers.
25   And you just testified to the same thing a moment ago.
                                                               41



1                   MR. ALDOUS: Your Honor, I object on
2    relevance in terms of whether she remembers the
3    testimony from yesterday.   That's irrelevant.
4                   THE COURT: Sustained.
5       Q    (By Mr. Chaiken) You just testified a moment
6    ago that the contract was prepared by VSDH and its
7    lawyers, right?
8       A    That is my understanding.
9       Q    That's your understanding.     So you have an
10   understanding as to who prepared the contract?
11      A    Yes.
12      Q    "They," meaning VSDH and its lawyers, did not
13   prepare this language.   This was language that was
14   prepared and proposed by your husband through
15   Mr. Buttemiller, correct?
16      A    Yes.    That was proposed and it's in the
17   contract.
18      Q    Your husband's not a lawyer, right?
19      A    Correct.
20      Q    All right.   Now, I want to talk to you about
21   this situation regarding the meeting that you have
22   testified about occurring over at the house, the one
23   that you said Doug Hickok attended that you walked in on
24   after the tour had been provided by your husband.       You
25   know the meeting I'm talking about?
                                                               42



1       A     Yes.
2       Q     When did that meeting occur?       Do you know the
3    date?
4       A     It was sometime in the fall.
5       Q     Sometime in the fall, all right.      And you were
6    unaware of any prior meeting that Doug Hickok had with
7    your husband or anybody else at the house prior to that
8    meeting, correct?
9       A     No.    That's not correct.
10      Q     All right.    Now the meeting was set up by
11   invitation by your husband, right?
12      A     Correct.
13      Q     And Mr. Hickok did come out there, right?
14      A     Correct.
15      Q     And so yesterday were you -- do you recall the
16   testimony from your husband about how he kept asking and
17   asking and asking for Mr. Hickok to come out to the
18   property and he kept -- he was being put off and put off
19   and put off?     Remember that testimony?
20      A     I do.    I remember that happening --
21      Q     Okay.
22      A     -- because Ken really wanted me to be there,
23   and he had tried to schedule it several times before.
24      Q     Now, your husband is a very competent user of
25   email.   Would you agree?
                                                                 43



1       A      I guess.   I don't get a lot of emails from him.
2       Q      You don't?   Okay.   Do you see him doing a lot
3    of emailing, got his face in the phone or whatever?
4       A      I think most people these days send a lot of
5    emails.
6       Q      Okay.   And you're aware of your husband's
7    practice of confirming things in email, right?
8       A      No, I'm not.   I don't know thenature of his
9    emails.
10      Q      Okay.   I'm sorry.   Give me a second here to
11   find where I am trying to go.       All right.I'm there
12   now.
13                 So, I want to show you what's been marked
14   as Exhibit 24.    You saw it up there yesterday when you
15   were sitting in the courtroom.     And you understand that
16   this is an October 16th, '08 letter from your husband to
17   Mr. Hickok inviting Mr. Hickok to come out and look at
18   the plans for approval, and reporting some other
19   information about what y'all were going to possibly do
20   with regard to roofing materials and complaining about
21   Paul Kramer, right?
22      A      Well, complaining about the fact that Paul
23   Kramer never fixed the repairs that were part of the
24   purchase agreement of the house.     Yes.
25      Q      All right.
                                                                    44



1          A      Not Paul Kramer personally.
2          Q      Got it.    Now, I've never seen another written
3    invitation by you or your husband to Mr. Hickok or
4    anybody else to come out to the house prior to this one
5    which is dated October 16, '08.        Have you?
6          A      The only emails that I've seen are in the
7    testimony over the past few days.
8          Q      All right.    So October 16, '08 is in the fall
9    of '08, right?
10         A      Correct.
11         Q      All right.    Now I want to show you Exhibit No.
12   27.       All right.    Exhibit No. 27 is two emails.   You see
13   it?
14         A      Yes.
15         Q      And right here we have an email from Mr. Hickok
16   that is dated October 31st at 8:43 a.m., right?         And it
17   says, "I just left you a voice message informing you
18   that I cannot meet today at 11:00. Unfortunately, I'm
19   out of town this weekend.        In summary, I will give you a
20   call early next week to schedule a time to get
21   together." And then it says, "My apologies," right?
22         A      Correct.
23         Q      Now, you agree with me that if Mr. Hickok was
24   writing this at 8:43 a.m. on the 31st to talk about a
25   meeting that had been scheduled that day, the meeting
                                                                45



1    had been scheduled at some time prior to his writing
2    that email, right?
3       A       Correct.
4       Q       It could have been a day before.   It could have
5    been three days before.     It could have been five days
6    before.    You don't know, right?
7       A       Correct.
8       Q       All right.   But what you do know from reading
9    this email that was authored by Mr. Hickok on the 31st
10   is that he responded to your husband's request to
11   schedule a meeting, right?
12      A       Yes.
13      Q       All right.   Now, when Mr. Hickok told -- and,
14   by the way, have you ever seen any other emails or
15   documents about scheduling the meeting because I
16   haven't?    I was just wondering if you ever have.
17      A       Not that I recall.
18      Q       All right. And when Mr. Hickok on the 31st
19   sent this email to your husband apologizing for being
20   unable to get there that day and committing to
21   scheduling next week to -- a time to get together, your
22   husband's response was this email right here, right?
23   And it says, "No problem, Doug.     Just call me next week
24   and we can reschedule.     Thanks, Ken," right?
25      A       Yes.
                                                              46



1       Q    Now, your husband didn't say, "Well, Doug, you
2    keep putting me off, you keep putting me off.    We need
3    to schedule this thing.   This is urgent," nothing like
4    that, right?   What he said was, "No problem, Doug.    Just
5    call me next week and we can reschedule."    That's what
6    he said, right?
7       A    Yes.    It was a cordial response.
8       Q    Yes, it was.   And he had no problem with the
9    fact that it had to be rescheduled.    He didn't say
10   anything about any urgent need to
                                     have the meeting,
11   nothing like that, right?    You don't see anything like
12   that in this email, right?
13      A    Not in this email, no.
14      Q    Okay. And you were in the courtroom yesterday
15   when your husband testified that your lender had, around
16   this time period, put him under the gun a little bit and
17   said, "Hey, you need to start this construction now and
18   you need to finish it by the end of the year."   Remember
19   that?
20                  MR. ALDOUS: Your Honor, I would object
21   to -- on relevance with regard to what she recalls and
22   whether she was in the courtroom when the testimony
23   happened.
24                  THE COURT: Sustained.
25      Q    (By Mr. Chaiken) In October of 2008, were you
                                                                47



1    aware that your lender had demanded that you and your
2    husband start the construction and demanded that it be
3    done by the end of the year?
4       A    I wouldn't characterize it as a demand.
5       Q    Let me rephrase it then.    Were you aware that
6    the lender had contacted your husband and it said," You
7    need to start the construction," and they complained
8    about his failure to do so earlier and that you and your
9    husband on the one hand and the lender on the other hand
10   reached an agreement to start the construction at about
11   that time and finish it by the end of the year?
12      A    I wouldn't characterize it as a complaint.
13      Q    What about the rest of it?   Would you agree
14   that there was an agreement made to start it and to
15   finish it by the end of the year?
16      A    What I would say is I know that there was a
17   discussion that happened between the bank after the bank
18   had merged saying, "Hey, by the way, what's the status
19   of the construction?   What are your timelines?   When's
20   it going to be finished," and that Ken and the bank
21   reached an agreement of what was going to happen and we
22   lived up to that agreement.
23      Q    Okay.   And did you happen to hear your
24   husband's testimony yesterday on when it was that he
25   agreed that the construction was going to be finished?
                                                               48



1       A     I don't recall what -- exactly what he said.
2       Q     Okay.   Do you see anything in Exhibit No. 25 --
3    I'm sorry -- 27, which is still up here on the overhead
4    that says, "Hey, Doug, I've got to get this construction
5    started right away because I've got to get it finished
6    by the end of the year"?
7       A     It does not state that in this email.   No, it
8    does not.
9       Q     All right.   And just so we're clear, sometime
10   in the fall, Mr. Hickok came out to the house, met with
11   your husband, and then you joined them in having a
12   pleasant conversationabout kids and everything else,
13   right?
14      A     And how good the house looked.
15      Q     You're testimony is that he told you how good
16   the house looked, right?
17      A     I remember saying to him, "Everything looks
18   great, doesn't it?"   And he said, "Yeah, it looks
19   terrific."
20      Q     Now, when you were testifying in response to
21   Mr. Aldous, I wrote down that you testified that -- when
22   referring to -- you were describing how you ran into Van
23   in Mexico and that -- and then the next thing you
24   remember -- you knew about was this meeting that
25   occurred where Doug came out to the house.   And you said
                                                                49



1    after construction had started, right?    So when
2    Mr. Hickok came out, construction had already started,
3    right?
4       A     Yes.
5       Q     All right.    And you understood that -- that
6    your husband was inviting Mr. Hickok to come out,
7    according to Exhibit No. 24, to look at the house, okay,
8    because he wanted to show Mr. Hickok the plans for his
9    approval, right?    Right?
10      A     That's what it states in here.   Yes.
11      Q     All right. So when I read that, that indicates
12   to me that -- that when somebody is saying, "I want to
13   show you the plans for approval.    Come on out to the
14   house," that person has never previously shown this
15   person the plan for approval.    And so -- so I'm not
16   seeing any other communication from your husband saying,
17   "Here are the plans.    Please approve them."   Have you
18   ever seen anything like that?
19      A     The fact that that's not in this email doesn't
20   mean that that conversation never took place.
21                   MR. CHAIKEN: Objection, nonresponsive.
22                   THE COURT: Sustained.
23      Q     (By Mr. Chaiken) My question to you was:       Have
24   you ever seen another communication from your husband or
25   anybody acting for him to Mr. Hickok saying, you know,
                                                                 50



1    "Here are the plans, you know, for your approval"?
2       A       I don't recall if there -- if I've seen
3    something else that says that.       I'd have to look through
4    all the other documents.
5                      MR. CHAIKEN: All right.   Your Honor, may
6    I approach the board?
7                      THE COURT: You may.
8       Q       (By Mr. Chaiken) I want to see if we can list
9    some points of agreement, okay?      You will agree with me
10   that as of the meeting date -- we'll call that meeting
11   date -- we don't know when the meeting date was --
12   construction already began, right?
13      A       Yes, that's true.
14      Q       All right.   And before -- before the meeting,
15   your husband invited Doug Hickok -- I'll call him DH,
16   okay -- to review the plans for approval.       Are we in
17   agreement on that?
18      A       Yes.    How many times hedid, I'm not sure.
19      Q       Okay.    That's what I'm saying, as of the
20   meeting.    Oh, and just so we're clear, when I say,
21   "before the meeting," this one was on 10 --
22                     MR. CHAIKEN: Van, what's the date of the
23   letter there? Can you slide that down for me?
24                     MR. SHAW: 10-16.
25      Q       (By Mr. Chaiken) 10-16.      Excuse me.
                                                              51



1                  And the other thing we can agree upon is
2    that you have never seen another writing asking
3    Mr. Hickok to review the plans for approval, you?
4    That's what I'm saying.
5       A    I don't know if I can state that I've never
6    seen another email that he has -- or any other
7    communication.   I don't know that I can say that.
8       Q    Can you point to any, a written communication?
9       A    My inability to point to something doesn't mean
10   that I've never seen it --
11      Q    Okay.
12      A    -- or that it doesn't exist
                                       .
13      Q    We'll just leave that blank. We can't agree on
14   that issue.
15                 Now, let's see if we can agree on one
16   other point with respect to this issue.   Exhibit 1 is --
17   right here is language about completing the improvements
18   and the buyer reviewing with seller the plans and
19   specifications, right?    This is your husband's language
20   to Mr. Buttemiller.
21      A    What's your question again?    I'm sorry.
22      Q    You agree that that's -- here is evidence of
23   your husband proposing language about when completing
24   improvements, the buyer will review with the seller the
25   plans and specifications?
                                                              52



1       A     Before proceeding.
2       Q     Right.   And this was a -- this was a concept
3    that was raised by your husband in his May 25, 2007,
4    email to Mr. Buttemiller, right?
5       A     Correct.
6       Q     All right.   And then the contract, which is
7    Exhibit 3 if you want to look at it, with the addendum
8    was --
9                    THE COURT: Three Gross or 3 VSDH?
10                   MR. CHAIKEN: Three Gross.
11      Q     (By Mr. Chaiken) -- signed, right?    And it had
12   your initials on it as a buyer right here at the bottom.
13   See them right there?
14      A     Yes.
15      Q     And then your initials right up here on the
16   escrow agreement clause, right?
17      A     Yes.
18      Q     All right.   And you were a party to this.   You
19   were one of the two buyers, right?
20      A     Yes.
21      Q     Okay.    And you understand that when this
22   contract talks about "buyer," it's talking about you,
23   right?
24      A     Correct.
25      Q     And your husband?
                                                               53



1       A    Correct.
2       Q    Right. And so the language that ended up in
3    the contract that you and your husband signed regarding
4    buyer improvements was language that says, "Before
5    commencing construction, buyer will review with seller
6    the plans and specifications and receive general consent
7    to proceed with the improvements," right?
8       A    Well, you forgot some words in there about
9    consent not to be unreasonably withheld.
10      Q    Right.     Consent not to be unreasonably
11   withheld, right?
12      A    Right.
13      Q    Okay.    So in order for somebody to consent or
14   not consent or whatever, they have to be given the
15   opportunity to look at what it is so that they can
16   consent or not consent, right?
17      A    Correct.
18      Q    And in this particular instance, what you and
19   your husband agreed to do in the contract was to review
20   the plans with Mr. -- I'm sorry -- with VSDH, the
21   seller, right -- you knew they were the seller -- before
22   commencing construction and receiving general consent to
23   proceed with the improvements, right?
24      A    Yes.
25      Q    Okay.    And you'll agree with me that the only
                                                                54



1    invitation in writing --
2                     THE COURT: Would you like to approach?
3                     MR. CHAIKEN: I'm sorry.   I should ask
4    before I stand up.
5                     THE COURT: You may approach.
6                     MR. CHAIKEN: May I approach?   Thank you.
7       Q       (By Mr. Chaiken) Can we agree that the only
8    written invitation that we see, okay, in this courtroom
9    to VSDH, the seller, to come out, look at the
10   improvements, review the plans for approval would be the
11   October 16, '08 letter that we just spent time talking
12   about?
13      A       No, I disagree.
14      Q       Okay.   But you can't show me another written
15   invitation to review the plans, right?
16      A       I don't know if it exists in any of these
17   binders.    And even if it doesn't exist in one of these
18   binders, I can't say that it doesn't exist at all.
19      Q       So we can't agree on that point is what you're
20   telling me?
21      A       No.
22      Q       All right. Because you don't know, right?
23      A       Correct.   I don't know --
24      Q       Okay.
25      A       -- if it exists or not.
                                                              55



1       Q     Fair enough.    I'm just trying --
2       A     There could be a dozen --
3       Q     -- to see what we can agree on --
4       A     -- emails.
5       Q     -- and what we can't agree on.
6                 THE COURT: Mr. Chaiken, you can't both
7    talk at the same time.
8                 MR. CHAIKEN: Okay.
9                 THE COURT: You may be seated.
10                MR. CHAIKEN: Forgive me.
11      Q     (By Mr. Chaiken) Mrs. Gross, did you read the
12   contract when -- or before you signed it?
13      A     I can't say I read every last word, but there
14   were certain parts that I definitely read very closely.
15      Q     Okay.   So, some people read every word; some
16   people don't read every word.    It kind of happens,
17   right?
18      A     Correct.
19      Q     So if you're not a lawyer andyou're reading a
20   contract, you know, you might miss something in the
21   contract, right?
22      A     Sure.
23      Q     You might not realize something's written in,
24   right?
25      A     Correct.
                                                                56



1       Q       And that's true of you, right?
2       A       Sure.
3       Q       And that could be true of Mr. Hickok, right?
4       A       Correct.
5       Q       All right.    And I want to ask you whether when
6    you read this contract before you signed it, you were
7    aware of this Provision Number 21 that says, "All
8    notices from one party to the other must be in writing
9    and are effective when mailed to, hand-delivered at, or
10   transmitted by facsimile or electronic transmission as
11   follows."    And then it talks about to seller.    It gives
12   his address, phone number, facsimile and an email
13   address.    You see that?
14      A       Yes.
15      Q       Okay.   Were you aware of that information when
16   you signed the contract?
17      A       I probably didn't pay attention to that.
18      Q       Okay.   Did you and your husband keep a copy of
19   the contract?
20      A       Sure.
21      Q       So you had that information at your home after
22   you closed so that if you or he wanted to send the plans
23   to VSDH -- and you had them and you might have had them
24   a year earlier.       You might have had them six months
25   earlier, whatever, or even on October 16 when the
                                                                 57



1    invitation to approve them, okay, by your husband was
2    sent.   It could have been sent by mail; it could have
3    been sent by facsimile or email, right?
4       A       Yes, but I don't know whetherthat address is a
5    business address, a home address.     I know that
6    Mr. Hickok has several homes in multiple states.
7       Q       But you had an address to talk about what the
8    seller's address was, right?
9       A       Yes, but I just -- I don't know whose address
10   that is.
11      Q       Well, it's seller's address, right?
12      A       But it -- it also has, though -- the email
13   address underneath that is for Marquis Group.       So is
14   that Marquis Group's address or
                                   is that Doug Hickok's
15   personal address or is that VSDH's address?      I don't
16   know.
17      Q       Mrs. Gross?
18      A       It just has an address.
19      Q       Mrs. Gross, you see this address right here?
20      A       Yes.
21      Q       Okay.   And it's in a notice provision and it
22   talks about where notices in writing that have to be
23   sent in writing to be effective, and it talks about
24   where it should be delivered to either of the parties.
25   Okay.   And what it says here is to seller. You just
                                                               58



1    told me you know who the seller was,right?
2       A    Right.
3       Q    And that's VSDH, right?
4       A    Right.    So now looking at that, you're right.
5    That makes sense.
6       Q    That would make sense.
7       A    That would be VSDH's address.
8       Q    Right.    And this is the email address that VSDH
9    provided in case you wanted to deliver by email instead
10   of mail or hand-delivery or other electronic
11   communication, right
                        ?
12      A    Got it.     Yes.
13      Q    Right.      And you had a fax machine -- a fax
14   number there too, right?
15      A    Yes.
16      Q    So at any time, okay, prior to October 31 of
17   2008, you or your husband wanted to send the plans to
18   VSDH, the seller, for approval before beginning
19   construction, you could have sent it in any of those
20   ways to any of those places, right?
21      A    In theory, yes.
22      Q    All right.     And I'm focusing on this question
23   specifically, okay, which is this Paragraph Number21,
24   because -- you see where it says, "All notices from one
25   party to the other must be in writing and are effective
                                                                59



1    when mailed to, hand-delivered at, or transmitted by
2    facsimile or electronic transmission as follows"?       You
3    see that?
4       A     Yes.
5       Q     All right.    And back to the things that we
6    could agree upon.     Let's see if we can.   Can we at least
7    agree that you are not aware of any written notice to
8    VSDH sent by mail, hand-delivery at the address listed
9    in the contract, by facsimile or electronic transmission
10   that included the plans for approval?    All I'm asking
11   you is: Can we agree that you're not aware of any?
12      A     Not aware of -- for clarification, "not aware
13   of" makes it sound as though I don't know of any.       Am I
14   not aware?   I don't know if there are -- I don't know if
15   there are and I don't know if there weren't.
16      Q     Okay.   So, in other words, you would agree with
17   me that you don't know of any, okay --
18      A     But that doesn't --
19      Q     -- but there might have been; you just don't
20   know.   Can we agree on that?
21      A     Correct. There might have been.
22      Q     Okay.   Let's see if we can agree on one more
23   thing on this point, and then we'll move along.     By the
24   way, are you okay?    You need water or anything?
25      A     No, I'm fine.
                                                                 60



1       Q     Sure.    Okay.   I know this is kind of tedious.
2    And I misspoke.    I'm actually asking two things, not
3    one.   Okay?   First thing I'm going to ask about is:    Can
4    we agree that the October 16th, '08, letter from your
5    husband inviting Doug Hickok to review the plans for
6    approval, okay, at the house sometime after that date is
7    not sending those plans to Mr. Hickok or VSDH for such
8    an approval?     Can we agree on that?
9       A     We can agree that it does not appear that plans
10   were attached to that email.
11      Q     Okay.    And asking somebody to come somewhere to
12   look at the -- at the plans, other than their own office
13   address, in this case would not be sending the plans in
14   writing to that person to seek their approval at their
15   address, right?    Can we agree on that?
16      A     Your question is a little confusing, but --
17      Q     Let me try to make it less confusing, okay?     I
18   don't want to confuse you.
19                  In his letter, your husband said, "If you
20   give me an address, I'll be happy to send them to you
21   for your review," right?
22      A     Right.    He was trying to cordially say, confirm
23   which address you'd like me to send them to, is how I
24   read that.
25      Q     Right.     What he was really saying is, is that I
                                                                61



1    understand I have an obligation under the contract to
2    send you the plans for your review under the notice
3    provision of the contract, right?
4       A     I think that's taking a lot of latitude with
5    your statement, but --
6       Q     Is it unreasonable latitude?
7       A     I think all this says is, I'd like to review
8    the plans with you.    How are you doing?   Tell me where
9    to send them.    Do you want it sent to your house in
10   Colorado or your house here?    Where would you like them
11   sent?   That's all that's saying.
12      Q     All right.   Okay.   Now I just want to cover
13   that last point I told you that I was going to cover on
14   this issue, and here it is in the addendum.    I want to
15   make sure that everybody understands what the contract
16   obligations were here. Paragraph 2, buyers improvements,
17   it says again, "Before commencing construction buyer
18   will review with seller the plans and specifications and
19   receive general consent, consentnot to be unreasonably
20   withheld, to proceed with the improvements."    I read
21   that right?
22      A     Yes.
23      Q     Okay.
24                   MR. ALDOUS: Your Honor, that -- I object,
25   repetitive.
                                                               62



1                     MR. CHAIKEN: Well --
2                     MR. ALDOUS: Cumulative.
3                     THE COURT: Sustained.
4                     MR. CHAIKEN: Okay.   I'll move on.
5       Q       (By Mr. Chaiken) Now, do you see anywhere in
6    this paragraph any -- any requirement for the buyer
7    after commencing construction to seek approval of the
8    plans?     Feel free --
9       A       State that again
                               .
10      Q       Feel free to read --
11      A       What's your question?
12      Q       Show me where in Paragraph Number2 right here,
13   in Exhibit 3, the contract, the addendum, where it says
14   that the buyer, which is you and your husband, are
15   required to review with seller plans and specifications
16   and receive consent after construction has already
17   occurred?
18      A       It says buyer will periodically update seller
19   regarding progress and timelines.       And so I would
20   interpret that as along the way, we will provide
21   updates.
22      Q       Provide updates, but he doesn't have to review
23   the plans and specifications and obtain approval of
24   them, right?
25      A       No.   But I think it's -- no, it does not state
                                                               63



1    that.
2       Q       So, once you present the plans and
3    specifications to VSDH for approval --
4       A       Uh-huh.
5       Q       -- okay, and you get the approval of the plans
6    and the specifications under the contract, you don't
7    have to ask for plans -- for approval of those plans
8    after you start the construction, right?
9       A       It says you're supposed to review the plans and
10   specifications.
11      Q       Before construction, right?
12      A       Before commencing.
13      Q       Right. And then after that, you're not
14   required to get consent to the plans and specifications
15   from the seller, right?     You can give them periodic
16   updates.    You can tell them how things are coming along.
17   But you don't have to give the concept to the plans and
18   specifications, right, for their approval?
19      A       It doesn't state that in that paragraph.
20      Q       So, in other words, once you have presented the
21   plans to the seller and the seller has given you concept
22   or approval of the plans, then there would be no need to
23   call upon the seller to -- to review the plans and
24   approve them, right, under the contract?
25      A       Yes.   But I think that the approval already
                                                              64



1    occurred.
2       Q    Right.    That's my point.
3       A    They already approved the plans and
4    specifications.
5       Q    All right.   So let's see if we can agree on
6    this concept. All right?    You and your husband contend,
7    because you've now testified to it and your husband
8    testified to it yesterday, that the seller had approved
9    the plans and the specificationsprior to this meeting
10   that occurred, right?
11      A    Yes.
12      Q    Well, if that is true, there would have been no
13   need to send an invitation to the seller in October of
14   '08 inviting them to approve the plans and
15   specifications at the beginning of construction, right?
16   If it had already been done, why are you doing it again?
17      A    Because their nonresponsiveness and their
18   uncooperation was causing concern that led to us wanting
19   to start putting everything in writing since they would
20   not respond to phone calls, would not respond to
21   requests for meetings.   And so while there were
22   conversations about here's where the house is going to
23   be, here's what it's going to look like, here's what the
24   plans are.   There was a detailed list in the contract of
25   exactly what the house was going to include.   There was
                                                              65



1    a meeting on site to say, "Here's what it's going to
2    include."   Now, all the sudden, the fact that they
3    wouldn't respond to calls, wouldn't respond to meetings,
4    wouldn't respondto anything, all the sudden it was,
5    we'd better start putting things in writing.
6       Q    So, let's see if we can agree on this.   Okay?
7    The reason your husband sent Exhibit No. 25, this
8    October 16th, '08, letter to Mr. Hickok in inviting him
9    to review the plans for approval because he's beginning
10   construction and saying that he'd be happy to send them
11   for review, is because there had never been a review of
12   the plans by the seller and an approval of those plans
13   before that date?
14      A    I disagree.
15      Q    Certainly, there's no writing that evidences
16   that it ever occurred, right?   Can we agree on that,
17   none that you're aware of at least?
18      A    Not that I have seen.
19      Q    Okay.   All right.   Now, are you in the habit of
20   recording telephone conversations?
21      A    No.
22      Q    Is your husband in the habit of doing so?
23      A    I have no idea.
24      Q    Are you aware of your husband ever recording
25   telephone conversations?
                                                             66



1                   MR. ALDOUS: Your Honor, I object and
2    request for permission to approach.
3                   THE COURT: You may approach.
4                   (Sidebar conference held)
5                   THE COURT: You may proceed.
6       Q      (By Mr. Chaiken) So I want to see if we can
7    agree on something else, okay, based upon the testimony
8    that you've just given, okay, about this need to start
9    putting everything in writing because the seller was
10   nonresponsive and the seller was putting you off and
11   they weren't, you know, responding to you-all when you
12   were asking them for things and so on and so forth,
13   okay?    That was all before you sent your buyback notice,
14   right?
15      A      Correct.
16      Q      So I'm guessing things were not as amicable
17   from your perspective prior to the -- to sending out the
18   buyback notice as your husband described yesterday right
19   up until the buyback notice?
20      A      I would disagree.   I feel like we were getting
21   mixed messages, you know.     When I ran into Van Shaw and
22   he's like, yeah, everything's great. It's going to be
23   great.
24      Q      Okay.   But all the sudden, you felt the need to
25   start documenting everything, right?
                                                              67



1       A      Well, especially on the execution of the
2    buyback option.   It was very clear.   And because of the
3    magnitude of that decision --
4       Q      Sure.
5       A      -- that had to be in writing.
6       Q      Everything had to be in writing with respect to
7    that, right?
8       A      Well, on the buyback option --
9       Q      Sure.
10      A      -- it was very clear in the contract.
11      Q      So, I'm a little confused, Mrs. Gross.   If
12   everything had to be in writing with regard to the
13   buyback option, okay -- and I'lltake you at your word
14   that that's what you believedwas necessary -- why are
15   you telling us that everything had to be in writing in
16   October of '08, which was, what, eight months before the
17   buyback option was triggered by you?
18      A      Say that again.
19      Q      You just finished telling the jury that all the
20   sudden, everything needed to be in writing in October of
21   '08, okay?   And then you started saying, well, it all
22   needed to be in writing at the time of the buyback
23   option.   So the relationship from your perspective had
24   changed, okay, as of October of '08, necessitating that
25   everything be put in writing, right?
                                                               68



1       A      What I'm saying is in October '08, after
2    numerous attempts at Ken trying to get Doug Hickok to
3    come out to the house, he likely -- I can't speak for
4    him.    But it certainly appears and my recollection is
5    that he said, "I better put something in writing because
6    maybe this will get them to respond."
7       Q      Got it.
8       A      "And we better have something in writing."
9       Q      All right.
10      A      But we also didn't want to have a contentious
11   relationship with what we thought was amicable parties.
12      Q      All right.   I want to turn our attention now to
13   the issue of the escrow agreement, okay?    You were in
14   the courtroom when there was a discussion about the
15   escrow agreement, right?
16      A      Yes.
17      Q      All right.   So let's see what we can agree to,
18   okay?   Can we agree that the escrow agreement provision
19   of the contract as written and as signed by you and your
20   husband as the buyer said, "Buyer agrees to escrow funds
21   totaling $156,871 with the title company and enter into
22   an escrow agreement acceptable to seller and buyer that
23   outlines the proposed improvements to the property and
24   the disbursement of such funds"?    Can we agree that
25   that's what the contract says?
                                                                69



1          A   That's what it says.
2          Q   Can we agree that you and your husband
3    understood that's what the contract said when you signed
4    it?
5          A   Yes.
6          Q   All right.   Can we agree that the escrow that
7    occurred, as testified to by your husband, was one that
8    put those funds with your lender, not the title company?
9          A   Because it was required by the lender.   That is
10   true.
11         Q   Okay.    So let's see if we can agree on the
12   following.
13                    MR. CHAIKEN: Your Honor, may I approach?
14                    THE COURT: You may.
15         Q   (By Mr. Chaiken) We'll call this escrow issue.
16   First thing we're going to say is that Grosses put
17   escrow money with their lender, not the title company.
18   We're in agreement with that, right?
19         A   We're in agreement that the lender required us
20   to put the funds with them and not -- so the funds were
21   escrowed but the bankrequired that they hold the funds,
22   not the title company.
23         Q   Right.    And so the reason that the Grosses, you
24   and your husband, put the escrow funds described in
25   Paragraph of the addendum with your lender, instead of
                                                                70



1    the title company, is because lender required it?
2       A     Correct.   And we notified the seller.
3       Q     Okay.    Lender required this.   And so you had a
4    contract that said the funds go to the title company.
5    We have agreed on that, right?    And rather than put up
6    with the title company, for whatever reason, you put it
7    with your lender, right?
8       A     The lender required it, and we notified the
9    seller that the lender required it.
10      Q     Okay.    And you -- you entered into an agreement
11   with the lender with regard to those escrow funds?
12      A     Yes.
13      Q     Okay.    So you had an agreement with lender,
14   okay.   Now, you had an agreement with the lender
15   regarding this escrow arrangement. When did you enter
16   into an escrow agreement acceptable to VSDH and you that
17   outlines the proposed improvements to the property and
18   the disbursement of such funds?
19      A     I seem to recall seeing a document in the last
20   48 hours that was very clear that we communicated to
21   VSDH that the funds had to be held with the bank and not
22   with the title company.
23                   MR. CHAIKEN: Objection, nonresponsive.
24                   THE COURT: Sustained.
25      Q     (By Mr. Chaiken) My question, Mrs. Gross, is:
                                                                71



1    When did you and your husband enter into an escrow
2    agreement acceptable to VSDH and to you and your husband
3    that outlined the proposed improvements to the property
4    and the disbursement of escrow funds?
5       A    I'm having a hard -- I have to think about how
6    to answer your question because we entered into that
7    agreement with VSDH when VSDH was made known of the fact
8    that that was a requirement by the lender.
9       Q    So it's your testimony to this jury that you
10   and your husband signed an escrow agreement and that
11   VSDH signed an escrow agreement that was acceptable to
12   both of you and it outlined the proposed improvements to
13   the property and the disbursement of the funds? Is that
14   your testimony?
15      A    Well, the fact that the funds were held by
16   someone other than the title company certainly didn't
17   stop them from cashing the check.
18                MR. CHAIKEN: Objection, nonresponsive.
19                THE COURT:   Overruled.
20      Q    (By Mr. Chaiken) Did you and your husband sign
21   your names to a written agreement with VSDH that
22   outlines the proposed improvements to the property and
23   the disbursement of the escrow funds; yes or no?
24      A    To the first half of your question, yes.     The
25   proposed improvements to the property are fully detailed
                                                             72



1    in one of the addendums to the contract.   As to the
2    escrow agreement, we notified VSDH of the lender's
3    requirement.
4       Q    So the answer is, no, you did not enter into
5    the escrow agreement?
6       A    So the answer is, no -- what's your question?
7       Q    You didn't enter into the escrow agreement
8    acceptable to seller and buyer that outlined the
9    proposed improvements to the property and the
10   disbursement of the funds?
11      A    We did not enter into an escrow agreement with
12   the title company.
13      Q    Okay.
14      A    That's correct.
15      Q    Not with the title company, with the seller.
16      A    Which line are you referring to, sir?
17      Q    I'll ask the question again.   Did you and your
18   husband sign an agreement with VSDH that out -- an
19   escrow agreement, okay, that outlines the proposed
20   improvements to the property and the disbursement of
21   such funds or not?
22      A    I don't know.
23      Q    Okay.   So we can agree --
24                  MR. CHAIKEN: May I approach, Your Honor?
25   I'm sorry.
                                                              73



1                   THE COURT: You may.
2       Q       (By Mr. Chaiken) So can we agree that you
3    don't know whether you signed such an agreement?     Can we
4    say that?
5       A       What we can agree on is that we entered into an
6    agreement that all parties signed and --
7                   MR. CHAIKEN: Your Honor, objection,
8    nonresponsive.
9                   THE COURT: Overruled.
10      Q       (By Mr. Chaiken) Can we agree that you are
11   not --
12                  THE COURT: I overruled it.
13                  MR. CHAIKEN: I'm asking another question.
14                  THE COURT: She didn't finish her answer.
15   She started to tell you what they -- what she could
16   agree to.    You're asking her to agree and she said, "We
17   can agree to -- and then didn't finish it.     So allow --
18                  MR. CHAIKEN: I thought she stopped
19   speaking.
20                  THE COURT: her to -- we can't talk at the
21   same time, Mr. Chaiken.    You objected, which is why she
22   stopped.    She can finish her answer.
23      A       I don't rememberthe question.
24                  MR. CHAIKEN: I'll move along.
25      Q       (By Mr. Chaiken) Did you have an understanding
                                                              74



1    as to what the purpose of Paragraph 3 here in the escrow
2    agreement was?
3       A    Yes.
4       Q    Would it be fair to say that one of the
5    purposes of the requirement to enter into an escrow
6    agreement with the seller that outlined the proposed
7    improvement to theproperty and the disbursement of the
8    funds was so that you had a signed agreement after this
9    contract that we're talking about here, okay, that
10   actually outlined the proposed improvements in that
11   document along with the disbursement schedule?
12      A    My understanding was that the purpose of the
13   escrow agreement is to make sure that the person who's
14   going to do these improvements follows through with
15   doing those improvements --
16      Q    Okay.
17      A    -- and spends the money on those improvements
18   and not on a trip to Vegas.
19      Q    Right.   And one of the other purposes was to
20   outline proposed improvements in a signed written
21   agreement between the two parties, right?
22      A    It would -- yes, that there would be a signed
23   agreement of what's going to happen and --
24      Q    Right.
25      A    -- the escrow agent would monitor the
                                                                75



1    disbursement of funds.
2       Q    Got it.   Now, you and your husband have
3    testified that VSDH consented to that arrangement, had
4    no problem with it, right?   That's what you're telling
5    the jury.   When I say, "that arrangement," instead of
6    signing the agreement that was called for by the
7    contract, escrowing the money instead with the lender
8    pursuant to an agreement withthe lender?
9                   MR. ALDOUS: Objection, Your Honor.    Calls
10   for a legal conclusion as to what is required by the
11   contract.
12                  THE COURT: Rephrase your question,
13   Mr. Chaiken.
14                  MR. CHAIKEN: Sure.
15      Q    (By Mr. Chaiken) Your testimony to this jury
16   is that VSDH was okay with you escrowing the escrow
17   funds with your lender and not signing the specific
18   escrow agreement with VSDH, right?
19      A    My testimony is that they were aware that an
20   escrow agreement with the bank was required instead of
21   with the title company.
22      Q    Were they okay?
23      A    And, yet, they still moved forward with the
24   agreement and cashed the check.     That's my testimony.
25      Q    Okay.    Because I thought I heard you tell the
                                                               76



1    jury that they were okay with it; they knew about it and
2    everything was just fine?
3       A    That's what I just said a second time. They
4    were aware of it.    They moved forward with the agreement
5    and they cashed the check.
6       Q    Got it.     The check meaning the check for the
7    purchase price that you owed them to buy the house?
8       A    That we agreed to pay them, yes.
9       Q    Okay.
10      A    The fact that the funds were held somewhere
11   else certainly didn't stand in the way of them cashing
12   that check and moving forward.
13      Q    Got it.     And then, of course, you found out
14   about how VSDH felt about that arrangement on July 3rd
15   of 2007, when you received what's marked as VSDH's
16   Number 29, which is a letter from a lawyer named
17   Mr. Stern, who told you that you and your husband had
18   not complied with the addendum's requirement to escrow
19   the funds with the title company and escrow -- I'm sorry
20   -- and sign an agreement, an escrow agreement, with the
21   seller, right?    You got this letter?
22      A    I had forgotten about it until I saw it
23   yesterday.   Yes.
24      Q    Got it.     And you knew at that time, can we
25   agree, that the seller did not approve of the
                                                              77



1    arrangement that you and your husband agreed to with
2    your lender, okay, instead of doing what was stated in
3    the contract, which was escrowing the money with the
4    title company and entering into a specific escrow
5    agreement outlining the plans and specifications, right?
6       A    I remember being very surprised by receiving
7    that letter because we had notified them that we had to
8    do the escrow agreement with the bank instead; and, yet,
9    they still moved forward with the deal and still cashed
10   the check.
11      Q    Well, they never told you, "Yeah, that's okay.
12   Go ahead.    Do it that way"?
13      A    By them signing the agreement, to me, with
14   knowledge that we had to do it with the bank, my
15   understanding was that they didn't disagree with it.
16   They didn't have a problem with it.
17      Q    They signed the agreement before the escrow
18   situation arose and you-all changed the plan.   In other
19   words, the escrow agreement requirement was in the
20   contract when you signed the contract of purchase and
21   sale, right?   It was supposed to happen later, right?
22      A    Right.
23      Q    Right.    Okay.   And so that's the only agreement
24   that they signed, right?
25      A    Right.
                                                               78



1       Q    All right.    I'm glad we could clarify that.
2    Please look, if you will, at Exhibit No. 30, which is
3    your Exhibit No. 30, Grosses' Exhibit No. 30.     And I
4    just want to briefly talk with you about something here.
5    This is a February 23, 2009, memo from your husband to
6    Mr. Hickok.    And he says, "I finished with the addition
7    and just wanted your final inspection and approval."
8    Did I read that right?
9       A    Yes.
10      Q    Okay. So he, is asking for approval of things
11   at this point that were already done, right?
12      A    They had been completed.    Anything is
13   changeable, but they had been completed.   Yes.
14      Q    So you didn't get approval of the things that
15   are listed here before construction of them, right?
16      A    I'm -- I don't know whetherhe got approval of
17   doing those things beforehand or not.
18      Q    Okay.    And the plans and specifications that
19   deal with all of these ten items, they were -- as your
20   husband I think described them, they were things above
21   and beyond what the plaintiff required, right?
22      A    Correct.
23      Q    So, number one, your husband hadn't finished
24   construction of the improvements by the end of 2008,
25   which is what his agreement was with the lender to do,
                                                              79



1    right, because he didn't finish until February of 2009?
2       A      I don't know what theagreement was with the
3    lender.   But I do know that the lender has never come
4    back to us and said that they have any problem --
5       Q      Got it.
6       A      -- with the finish date.
7       Q      And this Exhibit No. 30 has your husband asking
8    for VSDH's approval after the fact of a change in the
9    plans and specifications or an addition to the change
10   (sic) and specifications, right?     They're already done,
11   right?
12      A      Yes.
13      Q      Okay.
14      A      I can't imagine anyone objecting to $20,000
15   worth of free upgrades; but, yes, they were already
16   done.
17      Q      Well, while we're on the topic of objecting to
18   free upgrades or upgrades or the type of construction,
19   whatever, let's see if we can agree on this.    What you
20   think is a beautiful home and beautiful construction may
21   not be what somebody else thinks is a beautiful home and
22   beautiful construction, right?
23      A      True.
24      Q      Everybody has different tastes, right?
25      A      True.
                                                              80



1       Q     And you understand that the reason that consent
2    from VSDH for approval of the plans and specifications
3    before construction was so that VSDH could determine
4    whether what you and your husband might have thought was
5    beautiful and good construction was beautiful and good
6    construction from their point of view in case they were
7    in a position to have to buy the property back, right?
8       A     Sure.
9       Q     Okay.   So while you might have unilaterally
10   with your husband decided we're going to put these
11   things in and we're going to do it this way, okay, what
12   you wanted to do and what you did might not have been
13   acceptable to VSDH, right?
14      A     That's true.   It might not have been.
15      Q     But you-all went ahead and did those things
16   anyway and then asked for approval after the fact,
17   right?
18      A     We moved forward based upon comments from Doug
19   Hickok saying everything looks great, everythinglooks
20   terrific, and based upon the fact that we had received
21   no communication whatsoever at any point in time saying,
22   "Stop, cease. What you're doing is unacceptable." We
23   had absolutely zero signal fromanyone saying that what
24   we were doing was not okay.
25      Q     My question was a little different.   My
                                                                81



1    question was that with regard to these above and beyond
2    items, you and your husband made a unilateral decision
3    to do these things in a house that you were planning, a
4    couple of months later, to try to sell back to VSDH.
5    And you told them about it after the fact, and you
6    sought their approval after the fact, right?
7       A      And the reason why we did that is because if
8    there was anything that they did not like between
9    February 23 and May 1st, we could have easily changed it
10   back.
11                   MR. CHAIKEN: Your Honor, objection,
12   nonresponsive.
13                   THE COURT: Overruled.
14      Q      (By Mr. Chaiken) All right.   Let's move on to
15   another topic.
16                   THE COURT: How much longer do you think
17   you'll be, Mr. Chaiken?
18                   MR. CHAIKEN: I have a bit to go, maybe
19   another hour.
20                   THE COURT: Then we'll take a luncheon
21   recess.   It's now 12:15.   The jury is under the same
22   instructions you've been previously given.    During this
23   recess, you're not to discuss this case among yourselves
24   or with anyone else until such time as the case has
25   either been submitted to you for your deliberations or
                                                             82



1    you have been discharged as jurors.
2                 All rise.   The jury is excused for lunch.
3                 (Jury exits the courtroom)
4                 THE COURT: You may be seated.
5                 MR. ALDOUS: Can she step down, Your
6    Honor?
7                 THE COURT: Yes, you may step down.
8                 (Lunch recess taken)
9                 THE COURT: All right.    Counsel, approach.
10                Okay. We'll go on the record.
11                Mr. Chaiken?
12                MR. CHAIKEN: Your Honor, during the
13   break, Mr. Aldous and I spoke about a document on the
14   Grosses' exhibit list, which was the subject of a
15   deferred ruling by the Court, which was Exhibit No. 36.
16   And we've agreed that that document may be admitted and
17   we would request the admission of Exhibit No. 36 at this
18   time.
19                MR. ALDOUS: No objection.
20                THE COURT: All right.    Exhibit 36 is
21   admitted.
22                MR. CHAIKEN: And, Your Honor, so in
23   keeping with the Court's procedures, I don't know if you
24   have the exhibit in frontof you, but I have an extra
25   copy of it if you'd like it during the examination
                                                    .
                                                              83



1                 THE COURT: It's a one-page document?
2                 MR. CHAIKEN: It's a one-page document
                                                      .
3    You already have it?
4                 THE COURT: Gross 00472?
5                 MR. CHAIKEN: That would be correct, Your
6    Honor. So you have it already.
7                 THE COURT: All right.    If there's nothing
8    further, we'll bring in the jury.
9                 All rise.
10                (Jury enters the courtroom)
11                THE COURT: You may be seated.
12                All right.   Mr. Chaiken, you may proceed.
13                MR. CHAIKEN: I appreciate it, Your Honor.
14      Q    (By Mr. Chaiken) Good afternoon, Mrs. Gross.
15      A    Hello.
16      Q    I hope you had an enjoyable lunch?
17      A    Uh-huh.
18      Q    I want to talk to you about a couple of things
19   before I turn you over to Mr. Shaw.   Can you tell the
20   ladies and gentlemen of the jury
                                    who Jana Reist is and
21   Brent Cooper, who those two people are?
22      A    They're attorneys.
23      Q    Okay.    So is it fair to say that as of June of
24   2009, you and your husband had enlisted the help of
25   attorneys Reist and Cooper to help you-all in dealing
                                                                 84



1    with the -- I'll call it a situation involving the
2    buyback option after you had sent notice of the exercise
3    of it?
4       A     We did retain them at one point, but I can't
5    remember the exact date.
6       Q     Okay.    But -- so you did retain them; you just
7    don't remember when?
8       A     Correct.
9       Q     Okay.    And were these lawyers that you had a
10   relationship with?
11      A     No prior relationship.     No.
12      Q     Now, I want to ask you a couple of questions
13   and I'm going to request that you -- that you answer,
14   "yes," or, "no," to these questions.      Okay?
15                   All right.   The first question is:   I'm
16   going to show you what is Exhibit 36.     It's Grosses' 36.
17   Does exhibit -- Exhibit No. 36, is it dated June 15th,
18   2009?
19      A     Yes.
20      Q     Is it written by -- whose Kenny G? Is that
21   your husband?
22      A     Yes.
23      Q     Okay. And is it sent to Doug Hickok with a
24   copy to Van Shaw --
25      A     Yes.
                                                              85



1       Q    -- and you?
2       A    Yes.
3       Q    All right.    And it's also blind copied to Jana
4    Reist and Brent Cooper, right?
5       A    Yes.
6       Q    And does it say that -- does it say the
7    following?   And I'll point to the language here.   I know
8    you -- this is to Doug, right?   And it says, "I know you
9    previously said that you were referring this matter to
10   Van, but he cannot speak to your personal intentions.
11   Only you can do that," right?
12      A    That's what it says.
13      Q    Okay. And that was your understanding as of
14   June 15, 2009, that with regard to personal intentions
15   of Mr. Hickok, only Mr. Hickok could speak, right?
16      A    Yes.
17      Q    And if I understood your testimony earlier,
18   after the trigger of the buyback, okay, when you sent
19   notice of the buyback date or the buyback election, Van
20   Shaw is the only person who you actually communicated
21   with about the buyback situation, right?
22      A    Because Doug Hickok said I'm turning this
23   matter over to Van Shaw.   So, yes, that is true.
24      Q    And, again, I'd like you to answer "yes" or
25   "no" to these questions, okay?
                                                                 86



1                   THE COURT: She's allowed to give a
2    complete answer, Mr. Chaiken.
3                   MR. CHAIKEN: All right.
4       Q       (By Mr. Chaiken) But the answer is, isthat
5    Mr. Shaw was the one who was communicating the
6    information that you believed related to the question of
7    whether VSDH would buy back the contract -- buy back the
8    house or not, right?
9       A       It was my understanding that Van -- that Doug
10   Hickok said, "I'm turning this matter over to Van Shaw
11   and that Van Shaw was going to speak on behalf of VSDH."
12      Q       On behalf of VSDH, but not Doug Hickok, right?
13      A       Correct.
14      Q       All right.   And when Van Shaw communicated to
15   you whatever it is he communicated to you about whether
16   VSDH would buy or not buy it back, he was speaking for
17   VSDH, right?
18      A       Van Shaw, yes.
19      Q       Okay.   And you never had any communications of
20   any kind with Doug Hickok about his personal intentions,
21   correct?
22      A       We tried to.
23      Q       But you never had them, right?
24      A       Other than him turning over thematter to Van
25   Shaw, no.
                                                                  87



1          Q    Okay.   Let's see if we can agree on a couple of
2    other points, okay?      The words of the contract, Exhibit
3    3, say that all -- and I'm talking about Paragraph 21
4    here.     "All notices from one party to the other must be
5    in writing and are effective when mailed to,
6    hand-delivered at, or transmitted by facsimile or
7    electronic transmission as follows."      And then you have
8    the information below.     That's the words of the
9    contract, right?
10         A    Yes.
11         Q    So we can agree on that.    Can we agree on the
12   following:    There is no written document by VSDH,
13   authored by VSDH, stating these words, "VSDH will not
14   perform a buyback of the property"?
15         A    I disagree.
16         Q    What writing is there that has those words in
17   it?
18         A    There's an email from Van Shaw stating that the
19   company is insolvent, and that implies that the company
20   is not going to perform.     And that implication was
21   echoed by the comments stated verbally by Van Shaw when
22   we met with Van Shaw.
23                     MR. CHAIKEN: I object to the
24   nonresponsive answer.     Excuse me.   I object to the
25   nonresponsive answer.
                                                                88



1                   THE COURT: Overruled.    She says there's
2    an email.
3                   MR. CHAIKEN: I'm sorry?
4                   THE COURT: I said overruled.    She said
5    there was an email.
6       Q       (By Mr. Chaiken) My question to you,
7    Mrs. Gross, is:     Is there a writing that used the
8    precise words that I'm about to say; VSDH will not
9    perform the buyback of the property?
10      A       To my knowledge, those exact words were not
11   used, but the message was still communicated using other
12   language.
13      Q       So we're talking about implications now, right?
14      A       Or semantics.
15      Q       Okay.   Let's see if we can agree on another
16   concept.    Paragraph 22 of the contract says, "This
17   contract contains the entire agreement of the parties
18   and cannot be changed except by their written agreement.
19   That incorporates, "Addenda which are" --
20                  THE COURT: Yes, Mr. Aldous.
21                  MR. ALDOUS: Your Honor, I object to this
22   question as asking this witness the way it was phrased
23   to interpret the contract.
24                  THE COURT: What was the rest of your
25   question, Mr. Chaiken?
                                                               89



1                   MR. CHAIKEN: I hadn't finished reading
2    the sentence from the contract.     But I believe I asked
3    whether this contract says these things.
4                   THE COURT: I was asking what the rest of
5    your question was.
6       Q    (By Mr. Chaiken) -- addenda, which are a part
7    of this contract are -- and then it says check all
8    applicable boxes.    Is that what it says?
9       A    Yes.    It does say that.   And the box that is
10   checked is Addendum A and Addendum B.
11      Q    Okay.    Now, let's look at the buyback option.
12   The buyback option says that there is a grant by VSDH to
13   you and your husband of an option to put the property to
14   the seller.    It says, i.e., requires seller to
15   re-purchase the property for the original sales price of
16   2,851,871.    See that?
17      A    Yes.
18      Q    Now I just want to ask you a quick question
19   about that.    The sales price of the contract that you
20   closed on was $2,695,000, correct?
21      A    Correct.
22      Q    All right.    Now the buyback says that on or
23   before May 1st, 2009, buyer must exercise the buyback
24   option by delivering written notice thereof to seller,
25   which you did before May 1st, 2009, right?
                                                               90



1          A   Correct.
2          Q   All right.    And then in Exhibit B, it tells us
3    what happens if you send that notice, right?
4          A   Yes.
5          Q   Okay.    Can you show me anywhere -- well, let's
6    do it this way.
7                     Have you read that Exhibit B recently,
8    that portion of that Paragraph B?
9          A   Yes.
10         Q   All right.    And you would agree with me, would
11   you not, that no place in there are there words that say
12   that VSDH after receiving your declaration notice is
13   required to tell you one way or the other whether
14   they're actually going to buy the property back?     No
15   words in the contract that say they've got to tell you,
16   right?
17         A   It doesn't say that they're required to --
18         Q   Okay.
19         A   -- but they did tell us that they weren't going
20   to.
21         Q   All right. So let's just see if we can agree
22   on one simple concept.     Whether they did or didn't, the
23   agreement doesn't say that they're required to tell you
24   one way or the other.     Can we agree on that?
25         A   Yes,
                                                               91



1       Q    All right.     Now, after you sent VSDH the
2    declaration notice, you and your husband very shortly
3    thereafter reached out to VSDH, and you asked VSDH on
4    many occasions whether VSDH was going to buy it back or
5    not, right?
6       A    Correct, because they wouldn't respond to any
7    email, so we kept trying to get them to answer the
8    question.
9       Q    And you even got to the point of engaging a
10   lawyer to help you with regard to your quest to get an
11   answer as to whether they were or were not going to buy
12   the property, right?
13      A    Yes.
14      Q    Okay.   And you were unhappy about the fact that
15   VSDH would not tell you one way or the other whether it
16   would or it would not buy back the property, right?
17      A    It was very frustrating because there were
18   great implications to us if they -- if we waited until
19   September 1st and then all the sudden they said, oh,
20   well, I guess we're not going to.    Then we would have
21   lost precious time to be able to protect ourselves.
22      Q    But all along, you understood that VSDH was not
23   under any contractual requirement to tell you one way or
24   the other whether they would buy the property back on or
25   before the buyback date, which is September 1st, 2009;
                                                              92



1    you understood that, right?
2          A   I under -- well, now I understand as you're
3    pointing out the language that they were not under a
4    contractual obligation to.    We had hoped that they would
5    do the right thing and tell us what they were going to
6    do.
7          Q   All right. Now --
8          A   And they did tell us.
9          Q   Let's see if we can agree on the following
10   statements.    See if you agree that this is true.   After
11   you sent the buyback notice to VSDH, you and Ken Gross
12   proposed a buyback by VSDH to occur prior to September
13   1st of 2009?
14         A   After we sent the declaration and after they
15   told us the company was insolvent and after we met with
16   them to brainstorm about multiple options, yes, we did
17   communicate as was shown in the document yesterday that
18   as being one of many options that we would have been
19   more than happy to consider.
20         Q   Okay.
21         A   There were multiple things that we would have
22   been happy to reach an agreement --
23         Q   Okay.
24         A   -- if they would only respond.
25         Q   And they were responding to you -- to those
                                                                 93



1    proposals, right, about those options? You were
2    talking.
3       A       I don't know if -- there was very, very, very
4    little communication.
5       Q       Okay.
6       A       It was very one-sided.
7       Q       Now, there was never an agreement reached
8    between you and your husband on the one hand and VSDH on
9    the other hand to accelerate the buyback date; in other
10   words, make it earlier, right?
11      A       Correct.
12      Q       All right.   And VSDH had the right not to agree
13   to move the buyback date to an earlier date, correct?
14                  MR. ALDOUS: Objection, Your Honor.      It
15   calls for a legal conclusion.
16                  THE COURT: Sustained.
17      Q       (By Mr. Chaiken) Are you aware of any
18   requirement in the contract for VSDH to agree to move
19   the buyback date to an earlier date?
20      A       I'm not sure if that's in there or not.
21      Q       Okay.   Now, you and your husband entered into a
22   contract to sell the property to Melissa Browning prior
23   to September 1st of '09, correct?
24                  MR. ALDOUS: Objection, Your Honor,
25   cumulative, asked and answered.
                                                               94



1                    THE COURT: Sustained.
2       Q     (By Mr. Chaiken) And when you offered -- I'm
3    sorry -- entered into the contract with Ms. Browning to
4    sell it to her, it was after May 1st of 2009, right?
5       A     Yes.
6       Q     So it was after you sent the buyback notice,
7    right?
8       A     And it was also after we sent an email to VSDH
9    saying we were happy to not consummate this deal if you
10   would like to --
11                   MR. CHAIKEN: Your Honor, objection to the
12   nonresponsive portion of the answer
                                       .
13                   THE COURT: Overruled.   Let her finish her
14   answer, and then you can object to it after she's
15   finished it.
16                   You may finish your answer.
17      A     And it was also after we sent an email to VSDH
18   saying we have an offer, we don't have to accept it, and
19   you have 24 hours to respond.    But this is a great deal,
20   and this could meet everybody's needs, and -- but we
21   don't have to do this deal, so just let us know.    And
22   they never responded.
23                   MR. CHAIKEN: Objection to the
24   nonresponsive portion of the answer.
25                   THE COURT: Overruled.
                                                               95



1       Q     (By Mr. Chaiken) When you and your husband
2    entered into a contract with Melissa Browning to sell
3    her the property after May 1st, 2009, and before
4    September 1st of 2009, you understood that the contract
5    said that should the buyer enter into a contract to sell
6    the property, the buyback option will immediately
7    terminate and will no longer be available to buyer,
8    right?
9       A     I see those words in there and that explains
10   why the language in our email to them said what it said,
11   because I remember from yesterday it said something
12   about if you don't respond and if we proceed, that
13   should not in any way remove the buyback responsibility
14   or something along those lines.    I remember it saying
15   that.
16      Q     Right.   But when you entered into a contract
17   with Ms. Browning, you were aware that the contract said
18   that if the buyer enters into a contract to sell the
19   property, the buyback option will immediately terminate
20   and will no longer be available to buyer, right?
21      A     We -- yes, that was in there.
22      Q     Okay.    And you went ahead and you entered into
23   the contract with Ms. Browning before the 09-01 buyback
24   date, right?
25      A     Yes.
                                                             96



1       Q    Okay.   You sold the property to Ms. Browning
2    before 09-01 of '09, right?
3       A    After they did not respond and say they wanted
4    us to stop the deal;yes, we did move forward with the
5    deal.
6       Q    The answer is you sold it after 09-01-09, right
7    -- I'm sorry, before 09-01-09?
8       A    When we did not receive a response from them,
9    yes, we did sell the property before 09-01-09.
10      Q    Regardless of why you sold it before that date?
11      A    Yes.
12      Q    We can agree on that, right?
13      A    Yes.
14      Q    All right.   Your reason for selling it before
15   September 1st, '09 -- and when I say, "selling it," I
16   mean selling it to Mrs. Browning -- was because VSDH
17   would not commit to buying it back on or before
18   September 1st of '09, right?
19      A    Because they told us they were not going to buy
20   it back, yes.
21      Q    And they wouldn't commit to doing it, right?
22      A    Correct.
23      Q    All right.   On September 1st of 2009, would you
24   agree that on that date no one could buy the property
25   from you and Ken Gross?
                                                             97



1       A    That's true.
2       Q    And why is that true?
3       A    Because since they had not responded, we moved
4    forward with the transaction and sold it and it was now
5    owned by Mrs. Browning.
6       Q    So, in other words, when September 1st came
7    around, you and your husband couldn't sell the property
8    to VSDH, right?
9       A    Correct.   It was no longer owned by us at that
10   time.
11      Q    And you couldn't sell it to Doug Hickok, right?
12      A    Correct.   But we had also offered him the
13   opportunity and VSDH the opportunity to stop that
14   transaction at any point in time.
15      Q    To stop the transaction, okay.   Was there an
16   obligation in the contract for them to stop a
17   transaction?
18                  MR. ALDOUS: Objection, Your Honor.    That
19   calls for a legal conclusion.
20                  THE COURT: Sustained.
21      Q    (By Mr. Chaiken) Are there words in the
22   contract that offered VSDH the ability to stop a
23   transaction if you entered into a contract to sell it to
24   somebody else?
25      A    We stated in our email to them we can stop this
                                                                 98



1    -- something along the lines of we can stop this
2    transaction.   You just have to let us know.   There might
3    be some implications,but we can.     And we made that very
4    clear.
5       Q     Maybe you're not understanding my question.
6    Are there words in the contract, this document right
7    here, that says, "If we enter into a contract, okay,
8    with somebody else to sell the property to them before
9    September 1st, '09, you can stop it"?
10                  MR. ALDOUS: That's still asking the
11   witness for a legal conclusion.
12                  MR. CHAIKEN: I'm not asking for a legal
13   conclusion.
14                  MR. ALDOUS: I'm sorry.    I object.   That
15   asks for a legal conclusion.
16                  MR. CHAIKEN: I was asking her if there
17   were words in the contract that say that.
18                  THE COURT: Which would mean she'd have to
19   interpret it, correct?
20                  MR. CHAIKEN: No.    She just has to look
21   and see whether those words are there.
22                  THE COURT: Move on, Mr. Chaiken.      You
23   have beaten this horse to death.
24                  MR. CHAIKEN: I will pass the witness
                                                       ,
25   Judge.
                                                                99



1                    THE COURT: Mr. Shaw?
2                    MR. SHAW: Thank you, Your Honor.
3                          CROSS-EXAMINATION
4    BY MR. SHAW:
5       Q     Mrs. Gross, just a few, please.   You said that
6    when Doug Hickok came to the property in the fall of
7    2008, you were present; is that right?
8       A     For part of that meeting, yes.
9       Q     All right.    And we know from the email train
10   that the meeting that Mr. Hickok had at the house was
11   after October 31, 2008; is that fair?
12      A     That is a fair conclusion based on the email
13   dates.   Yes.
14      Q     All right.    Now, you said in response to your
15   lawyer -- I wrote it down.    You said, "Doug said the
16   house looked great and it looked fantastic."   Do you
17   remember that?
18      A     Yes.
19      Q     Okay. Then when Ken asked you some questions
20   you said, "Doug said it looked terrific." You remember
21   that?
22      A     I do.
23      Q     All right.
24      A     And I don't know which words he chose, but I
25   remember that thelanguage was complimentary.
                                                                100



1       Q       Okay.    Now, when Doug got there, your husband,
2    I thought, testified that the only thing that existed on
3    the work was that there was a concrete slab and some
4    sticks nailed to the concrete slab.        There was no roof,
5    there were no windows, there were no doors, there were
6    no walls, there was no nothing.      It was some sticks and
7    concrete.    Am I wrong about that?
8       A       When are you saying that he said that?
9       Q       When Doug -- I'm saying when Doug was present,
10   was there more than sticks and concrete?
11      A       No.   That's not what you said immediately
12   before that.       You said that when --
13      Q       This is what I'm asking you --
14      A       When are you claiming that Ken said that?
15      Q       When Doug was present, was the construction
16   more than sticks and concrete?
17      A       As Ken said yesterday, at the time that
18   Mr. Hickok came to the property, there was -- he didn't
19   use the term sticks.      There was foundation and there was
20   framing and -- I know there was afoundation and
21   framing.    I know there was not drywall. I distinctly
22   remember that.
23      Q       Was there a roof?
24      A       How much more was there? There might have been
25   a plywood roof, but I know there was not the cement tile
                                                             101



1    roof.    But beyond that, I can't remember
                                              .
2       Q      Let me show you what I've drawn.    It's kind of
3    rough.   I'm not a real good artist.     But that's -- what
4    I've drawn is a slab and some sticks.      That -- is that
5    part of the frame of the home?
6       A      First of all, that's not anything like what any
7    stage of construction would look like because you can't
8    just have two-by-fours vertically standing up without
9    anything connecting to them on the top.
10      Q      Well, there wasn't a --
11      A      So it definitely didn't look anything like
12   that.
13      Q      All right. Your husband said there was no
14   roof, right?      So at any rate, this thing was two
15   stories, right?     Is it two stories?
16      A      Yes.
17      Q      Okay.    If there's no roof --
18      A      It still wouldn't have looked like that.
19      Q      -- what else is there?    So there's going to be
20   some sticks coming across here, some wood; is that
21   right?
22      A      It still would not have looked like that.
23      Q      Well, here's what I'm driving at.    What could
24   Mr. Hickok have seen if it was just wood and concrete?
25      A      He could have seen a lot.
                                                               102



1       Q    What could he have seen if there was no walls,
2    there was no roof, there were no doors, there was no
3    windows, there was no drywall, there was no paint,
4    there's no nothing.     What could he have seen that --
5       A    There's a lot he could have seen.
6       Q    Okay.   What?
7       A    For example --
8       Q    What?
9       A    So, he would have been able to see all of the
10   walls and where the rooms laid out within the
11   foundation.   He would have because that would have -- if
12   there -- I know that there was framing that was done.
13      Q    Okay.
14      A    So all of the framing would have been done
15   outlining where each of the rooms would have been.    He
16   also would have seen where the media room upstairs
17   connected to the game room and the fact that it was
18   contiguous; therefore, the style would have to be
19   replicated from one room to the next.    So he would have
20   been able to see where the entry doors were. He would
21   have been able to see where the bathroom was.    He would
22   have been able to see where the bathroom and the little
23   wet bar was downstairs.    He would have been able to see
24   where the windows would be.
25      Q    So how far along was construction approximately
                                                            103



1    when Doug was there?
2          A   I can't state percentages.   But what I recall
3    was that there was certainly foundation and framing.
4    And that would mean all of the framing, interior and
5    exterior framing.
6          Q   So a lot?
7          A   And I don't remember-- a lot, but not that
8    anything -- I mean, anythingcould have been changed.
9    But the framing would have been completed, and there
10   would have been at least a plywood roof of some sort on
11   it.
12         Q   So in your mind, there was substantial
13   construction?
14         A   I would call that initial stages of
15   construction personally.
16         Q   So you wouldn't call it substantial?
17         A   Substantial is a very subjective term.
18         Q   Well, I'm asking you your term.   Is that what
19   you would call it?
20         A   There was significant construction, all of
21   which was still modifiable.
22         Q   Well, how do you modify concrete?
23         A   You take a jackhammer and you jackhammer it up
24   and you get rid of it or you add to it.
25         Q   You just -- you've done that before where
                                                                  104



1    you've taken a whole area that's built and take the
2    whole concrete and the foundation that's engineered by
3    an engineer out?
4          A      Me personally? No.
5          Q      Well, no.    I mean, you've --
6          A      But have I seen it done?   Absolutely.
7          Q      All right. Do you have any legal or accounting
8    experience?
9          A      No.    I'm a nurse by training.
10         Q      Okay.   Now, the contract, we've been through
11   it.       And I just want to make sure I understand one
12   thing.      You say that the spreadsheet is specifications.
13   Did I get that part of it right?
14         A      I think it reads as specifications to me.
15         Q      Okay.   Now this is from VSDH Exhibit 6, and
16   this is the -- part of the addendum.           We've talked about
17   this, right?
18         A      Yes.
19         Q      Okay.   So down here in Section 3, it talks
20   about spreadsheet, right?
21         A      Yes.
22         Q      Okay.   And then it says that the buyers agree
23   to enter into an escrow agreement acceptable to seller
24   that outlines the proposed terms of improvements and
25   property.      So they say -- this is a future event.      The
                                                             105



1    buyer agrees to enter into escrow funds title, enter
2    into an escrow contract acceptable to buyer that
3    outlines the proposed improvements.      So this seems to
4    say something different than what the spreadsheet
5    contemplates.    Would you agree with me on that?
6       A    Well, the words are different.      It doesn't mean
7    that the same document could not have been used for the
8    same purpose.
9       Q    Okay.     Let's look at above.   The buyer -- we've
10   talked about this.    The buyer will review with seller
11   the plans and specifications.    Now it never says
12   spreadsheet there, does it?
13      A    No, it does not.
14      Q    But whatever the contract said, whatever it
15   says, you agree to live by; is that fair?
16      A    I -- when I signed the agreement, I was
17   responsible for living by it and did.
18                   MR. SHAW: I pass the witness.
19                   THE COURT: Mr. Aldous?
20                   MR. ALDOUS: Thank you, Your Honor.    May I
21   approach the court reporter, Your Honor?
22                   THE COURT: You may.
23                   MR. ALDOUS: And, Your Honor, can we
24   approach?
25                   THE COURT: You may.
                                                               106



1                    (Sidebar conference held)
2                    THE COURT: All right.   You may proceed.
3                        REDIRECT EXAMINATION
4    BY MR. ALDOUS:
5       Q     Okay.    Mrs. Gross, here are VSDH's exhibits.
6    Okay?   I'm going to direct you to Number 57.
7       A     Okay.
8       Q     Do you recall being asked questions about
9    whether or not you gave Doug Hickok the opportunity to
10   do something personally himself?    Do you recall those
11   questions?
12      A     Yes.    Vaguely.
13      Q     Say it -- I'm sorry?
14      A     Vaguely.
15      Q     So -- I've got all kinds of mess here.     If
16   you'll give me one second.    It appears as though I've
17   misplaced an exhibit. Shocker. Ah-hah, I have it.
18                   Let me show you what's been previously
19   marked and is in evidence as Exhibit 36.    Do you recall
20   being questioned about this email from your husband to
21   Doug saying, you know, I know you said Van's going to
22   speak for you, but, you know, are you going to do
23   personally?
24      A     Yes.
25      Q     What -- why did you guys send this?
                                                            107



1       A     Well, because Doug had made it clear that Van
2    Shaw was taking over representation for anything related
3    to VSDH, but we had personal guarantee in the contract.
4    And so only Doug could respond as to whether or not he
5    was going to honor the personal guarantee that he signed
6    in the contract.
7       Q     Now, if you would, turn to the other, Exhibit
8    57, that is up there. Mr. Hickok actually responded to
9    your email, didn't he?
10      A     Yes.
11      Q     And let me show you what his response was.
12   This is June 17th, approximately two days after your
13   email.   And what does he say there?   "I've been out of
14   the office for the past week plus.     As I stated in the
15   past, Van is handling the resolution of this matter.
16   Unfortunately, he's out of the country but will be
17   returning this weekend. I'm confident that he will be
18   in touch with you shortly thereafter. My apologies for
19   not addressing your concerns.    However, I must reiterate
20   that Van is the point person."   Is that what that says?
21      A     Yes.
22      Q     Based upon that, did you take it that Van Shaw
23   had the ability to react -- to answer for Doug Hickok?
24      A     Yes.
25                   MR. CHAIKEN: What exhibit number was
                                                                 108



1    that?
2                        MR. ALDOUS: 57, your 57.
3          Q      (By Mr. Aldous) The only other thing I want to
4    ask you about is you testified that in, I guess, late
5    May or June of -- when you believe that you were not
6    getting responses from the other party to let you know
7    or to make you feel confident.        And that's when you
8    suggested to Ken that he put stuff in writing.
9          A      Yes.
10         Q      Do you recall that?
11                       I want you to turn to the Gross Exhibit
12   35.       Let me make sure this is in.   It's already
13   admitted.      And you see the bottom of it is your email to
14   Doug saying, "I hope this finds you well.       We have sent
15   this notice via fax.        We wanted to make sure you
16   received this per our contract," and then it goes on to
17   say, "We are exercising our sell back option," right?
18         A      Right.    And even down below, it says, "If you
19   want to discuss any other options, including an early
20   buyback or otherwise."
21         Q      All right.    Then his -- Mr. Hickok's response
22   to you was, "I forwarded the attached onto Van Shaw.
23   He's handling this matter," right?
24         A      Correct.
25         Q      And your response to Ken is what I wanted to
                                                                 109



1    refer you to.    It says, "FYI,at least now we have the
2    confirmation we were seeking. However, this makes me
3    nervous."    What did you mean?
4       A    It made me nervous that they were going to try
5    to get out of the deal that they had signed.       We had
6    made an agreement with them, and now they were turning
7    this into a legal matter.   And they weren't going to
8    live up to what they said they were going to do.
9       Q    Before that time where you said to Ken, "Maybe
10   you ought to start writing stuff down," were you guys
11   operating like that?
12      A    I didn't feel like we were.      We tried numerous
13   occasions to meet with them.      We had cordial
14   interactions with them.   They led us to believe
15   everything was okay based upon the nature of their
16   responses.   We were trying to act -- provide options,
17   come up with solutions.
18      Q    Before May of 2009, were you anticipating that
19   you'd ever be in the courtroom right now having somebody
20   else resolve this?
21      A    Absolutely not.
22                  MR. ALDOUS: I'll pass the witness
                                                    .
23                  THE COURT: Mr. Chaiken?
24                  MR. CHAIKEN: May we approach, please?
25                  THE COURT: You may.
                                                               110



1                     (Sidebar conference held)
2                     THE COURT: You may proceed.
3                          RECROSS-EXAMINATION
4    BY MR. CHAIKEN:
5       Q      Mrs. Gross, Mr. Aldous was talking to you a few
6    moments ago about this Exhibit No. 57, and he showed you
7    this email right here.     And do you see the subject line
8    of the document there?     It says, "Re, for settlement
9    purposes only, confidential."     Do you see that?
10      A      Yes.
11      Q      Okay. And Mr. Hickok, can you tell by looking
12   at this, was responding to some other email that he had
13   gotten?
14      A      It appears that way.    Yes.
15      Q      Okay.    And what Mr. Hickok was saying here is,
16   "I've been out of the office for the past week plus.        As
17   I stated in the past, Van is handling the resolution to
18   this matter.      Unfortunately, he is out of the country
19   but will be returning this weekend. I'm confident that
20   he will be in touch with you shortly thereafter.     My
21   apologies for not addressing your concerns.     However, I
22   must reiterate that Van is the point person."     Did I
23   read that right?
24      A      Yes.
25      Q      And when you got this and when your husband got
                                                                 111



1    this and showed it to you, you both understood that
2    Mr. Hickok was referring you back to Van Shaw for a
3    possible resolution of whatever was going on between
4    you-all, right, as of June 17th of 2009?
5       A      To discuss a possible resolution.    Yes.
6       Q      Okay. And, in fact, Mr. Shaw did get back in
7    touch with you to talk about potential options and
8    resolutions to whatever it was that you-all were seeking
9    a resolution for, right?
10      A      Yes.
11      Q      Okay.   But in June of -- June 18th of 2009, in
12   response to Mr. Hickok's message, your husband
13   reiterated that since there are issues that impact --
14   "There are issues that impact you," meaning Doug,
15   "individually, since Van is stating that a personal
16   guarantee does not exist and he cannot speak for you,"
17   right?   That's what your husband wrote?
18      A      You said it was 57.     I just want to read the
19   bottom of that page again.      "There are issues that
20   impact you individually since Van is stating the
21   personal guarantee does not exist and he can't speak for
22   you."    Yes, it does say that.
23      Q      So, once again, your husband is expressing his
24   understanding.    And this message is signed Ken and
25   Betsy, right?
                                                             112



1       A    Written by Ken, but signed Ken and Betsy, yes.
2       Q    Okay. So he's expressing once again yours and
3    his understanding that Van cannot speak for Doug on the
4    personal issues, right?
5       A    Yes, which is confusing; but, yes.
6       Q    Okay.   And then it says over here, "It's just
7    not right, not to mention the legal ramifications."   Did
8    I read that right?
9       A    Yes.
10      Q    Was -- were you and your husband at that time
11   threatening Doug Hickok with legal ramifications if --
12   and this was on -- on June 18th, 2009?
13      A    Not threatening, just stating the obvious that
14   if they weren't going to honor the buyback agreement,
15   there would be some legal ramifications to that that we
16   would have to explore.
17      Q    And you were -- you were mentioning to them
18   that you would possibly be exploring those legal
19   ramifications, correct
                          ?
20      A    That we would have to explore what our rights
21   were, what we needed to do, what it meant.
22      Q    So at least as of June the 18th, you were
23   envisioning yourself being in a courtroom, right?
24      A    No.    This is a nightmare.   I would never want
25   to envision myself having to go through five years of
                                                                  113



1    this.    No.
2       Q      This is a nightmare.     What, litigation is a
3    nightmare?
4       A      Yes.
5       Q      Okay.    Why is litigation a nightmare?
6                     MR. ALDOUS: Objection, Your Honor.
7    That's irrelevant and it's also not material.
8                     THE COURT: Sustained.
9                     MR. CHAIKEN: Pass the witness
                                                  .
10                    MR. SHAW: Nothing further.
11                    THE COURT: Mr. Aldous?
12                    MR. ALDOUS: Nothing, Your Honor.      I'm
13   sorry.
14                    THE COURT: The witness is excused. You
15   may step down.
16                    You may call your next witness.
17                    MR. ALDOUS: Is it all right if I step out
18   in the hall and call her, Your Honor?
19                    THE COURT: You may.
20                    MR. ALDOUS: Your Honor, it appearsthat
21   the witness went on a walkabout.       I'm going to have to
22   find her.      Her coat's still there.   She may have just
23   stepped in the women's restroom.
24                    THE COURT: All right.    Ladies and
25   gentlemen of the jury
                         , you can stand and stretch if
                                                           114



1    you'd like.   We'll just stand in recess.
2                  During this recess, you're under the same
3    instructions you've been previously given.      You're not
4    to discuss this case amongyourselves or with anyone
5    else until such time as the case has either been
6    submitted to you for your deliberations or you have been
7    discharged as jurors.
8                  All rise.   The jury is excused for recess.
9                  (Recess taken)
10                 THE COURT: You may bring in the jury.
11                 (Jury enters is the courtroom)
12                 THE COURT: You may be seated.
13                 You may call your next witness.
14                 MR. ALDOUS: Yes, Your Honor.     We would
15   call Roxann Taylor.
16                 THE COURT: Raise your right hand, please.
17                 You may be seated.
18                 THE WITNESS: Thank you.
19                 THE COURT: You may proceed.
20                 MR. ALDOUS: Thank you, Your Honor.
21                         ROXANN TAYLOR,
22   having been first duly sworn, testified as follows:
23                      DIRECT EXAMINATION
24   BY MR. ALDOUS:
25      Q    So, Ms. Taylor, if I refer to some of these
                                                           115



1    exhibits, you see it's got on the little tabs, the
2    numbered tabs, and if you want to look at them, you can
3    look at them.   All right?   I will let you know.
4       A    Okay.   I didn't bring my glasses.
5       Q    That's all right.
6       A    Thank you.
7       Q    First of all, tell the -- would you introduce
8    yourself to the jury?
9       A    Hi, my name is Roxann Taylor and I'm a real
10   estate broker. I own a real estate company with an
11   office in Southlake and one in Flower Mound.
12      Q    How long have you been selling real estate,
13   Ms. Taylor?
14      A    In two years, it will be 40 years.
15      Q    And during that entire time, have you been
16   involved in some way in the real estate business?
17      A    Yes, sir.
18      Q    How long have you had your own company?
19      A    Since the 1990s.
20      Q    Are you a licensed real estate agent?
21      A    Yes, sir.
22      Q    Are you also a licensed broker?
23      A    Yes, sir.
24      Q    What's the difference between a license for a
25   broker and an agent? Or what's it mean to people in
                                                                116



1    the business, I guess?
2       A      The buck stops with me.   I'm responsible for
3    the people that I sponsor underneath me.      I make the
4    decisions for the business, and my fiduciary duty is
5    higher.   And I've got to make sure that everybody's
6    doing everything right.
7       Q      So in terms of, I guess, the hierarchy, the
8    agents report to the broker who has their license and
9    holds their license?
10      A      Uh-huh, that's correct.
11      Q      Okay.   And you are the broker for your firm?
12      A      Yes, sir.
13      Q      Is there a -- what's the name of your firm?
14      A      Engel & Volkers Dallas Southlake.
15      Q      Now, are you familiar with the -- Ken and Betsy
16   Gross?
17      A      Yes.
18      Q      How did you meet the Grosses?
19      A      I met them originally in 2002 when they had a
20   home that they wanted to sell in Southlake, and I sold
21   their home for them.
22      Q      Later on, did you also list and work with them
23   on 2004 White Wing Cove in Vaquero?
24      A      Yes, on the sale of it.
25      Q      Okay.
                                                             117



1                  MR. ALDOUS: May I approach, Your Honor?
2                  THE COURT: You may.
3       Q      (By Mr. Aldous) So let me turn this to 52 for
4    you. Sometimes it's just faster for me to do it. There
5    you go.
6                  Ms. Taylor, do you recognize Exhibit 52?
7       A      Uh-huh, it has my handwriting all over it.
8       Q      All right.   What is Exhibit 52?
9       A      It's a copy of a listing agreement agreeing to
10   market the property at 2004 White Wing Cove?
11      A      Is this the sort of agreement that you sign
12   with someone who's a seller who wants your help in
13   trying to sell a home?
14      A      Yes, sir.
15      Q      Now, typically in a listing agreement, do you
16   agree as to what price the property will be offered for?
17      A      Yes, sir.
18      Q      On the second page of Exhibit 52, of Gross
19   Exhibit 52, is a listing price that's handwritten in
20   there of $2,500,000.    Do you see that?
21      A      Yes, sir.
22      Q      Is that your handwriting, ma'am?
23      A      Yes, sir.
24      Q      Are you the one that made the recommendation to
25   have the house placed on the market for $2,500,000?
                                                              118



1       A    The Grosses and myself went through all the
2    numbers, and I'm quite familiar with the numbers if you
3    want me to get into that at all.
4       Q    I do, but let me approach.
5                    MR. ALDOUS: Your Honor, may I approach?
6                    THE COURT: For what purpose?
7                    MR. ALDOUS: I have another exhibit that
8    has been deferred.
9                    THE COURT: Okay. So you'll need to show
10   it to opposing counsel first, then to the Court before
11   you approach.
12                   You may approach.
13                   MR. ALDOUS: Thank you, Your Honor.
14      Q    (By Mr. Aldous) Ms. Taylor, do you recognize
15   Exhibit 41?
16      A    It's like a market analysis sheet.
17      Q    Is this something that your office prepared?
18      A    Yes.     It looks like that it is from my office.
19      Q    Is this the type of report that you would
20   prepare in an effort to determine what price to list a
21   home that's going on sale?
22      A    Yes.     And it has some of the Zs on here.
23      Q    What does the Z stand for?
24      A    We don't do it anymore.     Two years ago, the
25   board had us stop Z'ing out the final sales price of a
                                                              119



1    property.    They wouldn't let us do it anymore; that once
2    you sell a property for a particular price, you have to
3    publish it if it was in the Multiple Listing Service.
4    At the time that we went to put the Grosses' home on the
5    market, there -- almost half of the sales were Z'd out
6    where you couldn't tell how much they sold for.
7                   MR. ALDOUS: Your Honor, we move to admit
8    Exhibit 41.
9                   THE COURT: Any objection?
10                  MR. CHAIKEN: Your Honor, objection.   And
11   we have a disclosure issue, and I'd request an
12   opportunity to approach.
13                  THE COURT: You may approach.
14                  (Sidebar conference held)
15                  MR. ALDOUS: Your Honor, I withdraw the
16   request.
17                  THE COURT: All right.   It's withdrawn.
18      Q       (By Mr. Aldous) Ms. Taylor, did you perform a
19   comparative market analysis of the
                                      south Westlake area,
20   the Southlake area, prior to coming up with a price that
21   you thought should be offered for the -- or should be
22   put on the market for the house at 2004 White Wing Cove?
23                  MR. CHAIKEN: Your Honor, I object to the
24   question, and it is seeking to elicit an undisclosed
25   expert opinion.    May we approach?
                                                             120



1                  THE COURT: You may approach. In the
2    future, I will remind you again, Mr. Chaiken, to not
3    make speaking objections.
4                  (Sidebar conference held)
5                  THE COURT: You may proceed.
6       Q     (By Mr. Aldous) Ms. Taylor, my question to you
7    was:   Did you perform a market analysis with regard to
8    the area surrounding this home prior to the time that
9    you recommended to the Grosses what to -- you know, what
10   your recommendation would be for the listing?
11      A     Yes, sir.
12      Q     Now when you do a market analysis of that kind,
13   tell us what you do.
14      A     First of all, I'm looking at -- everything's
15   about location and where the property is located.
16   Mr. Grosses' home was located in Vaquero, which is a
17   private, gated, guarded community of which I have a lot
18   of knowledge of since before it was even built.   The
19   developer had me drive across the piece of land with him
20   and I helped him come up with some of the original
21   plans.   I was one of the first realtors to market the
22   area. I watched every road go in, every home be built,
23   and I continue to market the place because I know I have
24   my fingers on the pulse of what's going on.
25                 In 2008, when we went into the recession,
                                                            121



1    the sales were not that good.   That piece of paper, that
2    brought back a lot of memories when you just showed that
3    to me because there were a lot of homes on the market,
4    and they weren't selling.   The nine sales that had
5    happened in the previous year to when we put a price tag
6    on the property, four of them were Z'd out that we could
7    not get the information.    But there were five properties
8    that we were able to obtain the information on and what
9    they had sold for, and they had sold anywhere from 142 a
10   foot to 244 a foot, except for one property that I
11   actually had just sold myself the previous month.     It
12   was similar in size, similar builder, similar lot size,
13   same year built.
14                  MR. SHAW: Your Honor, we would just
15   object to the narrative nature.
16                  THE COURT: Sustained.
17      A    That is a market analysis.
18      Q    (By Mr. Aldous) So, Ms. Taylor, when you say
19   the price per foot, are you referring to the price per
20   square foot?
21      A    Yes, sir.
22      Q    So if a home has 7,000 square feet, you put
23   whatever the -- what you believe to be the going rate
24   for per square foot for that area for that house from
25   what you can get, and then that's how you come up with a
                                                               122



1    listing price?
2       A       And then I add some to it so there's some
3    wiggle room for negotiation.
4       Q       All right.   You were talking about a previous
5    sale that you were involved with where you actually sold
6    a home that was very similar to this one.
7       A       Uh-huh.
8       Q       Is that right?
9       A       We have a couple of builders in the area that
10   are very well respected.     The original builder, I
11   believe, of this home was Paul Kramer; is that correct?
12      A       Yes.
13      Q       And there's another builder by the name of
14   Scott Simmons that builds very high-quality homes and
15   very respected in the area.     The home that I had just
16   sold was a Scott Simmons home.     It was within 100 feet
17   of being the same size.     It was -- had a four-car
18   garage, had similar amenities on the inside, built the
19   same year.
20                     MR. SHAW: Your Honor, I'm going to object
21   to the narrative nature.     May we approach?
22                     THE COURT: You may.
23                     THE WITNESS: Does that mean I can't talk
24   anymore?
25                     THE COURT: Not until I finish talking
                                                             123



1    with them.   For whatever reason, they love this little
2    corner.
3                  (Sidebar conference held)
4                  THE COURT: You may proceed.
5                  MR. ALDOUS: Thank you, Your Honor.
6       Q      (By Mr. Aldous) So, Ms. Taylor, where we were
7    at was you were saying that you had just sold a home
8    from another builder that was of similar size and
9    location to the home, the Grosses' home.
10      A      It was two blocks away
11      Q      When you -- and you had said that that home
12   actually sold and closed?
13      A      It was a closed sale, probably about three
14   weeks before we listed Ken's.
15      Q      And when you -- so you knew, obviously, what
16   that house actually sold for per square foot
                                                ?
17      A      304 something a foot -- $304 a foot, which
18   nothing had sold above $200 something a square foot.
19      Q      Based upon all the factors that you knew of and
20   your own personal experience, do you believe that the
21   price that you recommended to be put on the market for
22   this house was the best price that you could recommend?
23      A      Yes, sir.
24      Q      Now, subsequently to the -- to the listing
25   agreement, you received an offer on the home; is that
                                                               124



1    correct?
2       A       Yes, sir.
3                   MR. ALDOUS: May I approach, Your Honor?
4                   THE COURT: You may.
5                   THE WITNESS: Probably a couple of months
6    later.   I wish it was sooner.
7                   MR. ALDOUS: That's all right.
8       Q       (By Mr. Aldous) If you would, take a look at
9    Exhibit 47, which is already in evidence.     Is that a
10   contract offer that you received as the agent on behalf
11   of the Grosses?
12      A       Uh-huh.   And, in actuality, what -- on when I
13   received it because it was written by an agent in my own
14   firm.    I had Mrs. Zarazan represent the Grosses.
15      Q       So you had a different agent in your office
16   represent the Grosses for the purpose of the contract
17   and any closing?
18      A       Yes, sir.
19      Q       Is that so that you can make sure that both
20   sides remain fair to one another?
21      A       Yes, because there was another agent in my
22   office that represented the buyer.
23      Q       All right.   So the Exhibit 47, which is the
24   contract for sale, has a sales price of $2,415,600?
25      A       Yes, sir.
                                                            125



1       Q     Were there any other parts of this that --
2    other than just the price that from an agent's
3    perspective, particularly at this period of time, you
4    thought was important?
5       A     It was cash.
6       Q     Tell us what you mean by that and why it's
7    important to you.
8       A     Because it means we're going to have a real
9    sale.   Working through the appraisal market today and
10   obtaining mortgages during that time period in the
11   middle of a recession, it was difficult for borrowers to
12   get financing. I mean, The scenario couldn't have been
13   any better.   It was a wonderful thing.
14      Q     Just so that I can understand what you're
15   saying, you're saying at that period of time where this
16   house was going under contract, it was difficult to get
17   loans to buy houses?
18      A     Yes, sir.
19      Q     And so when you say a, "cash offer," that means
20   there was no loan involved?
21      A     That's correct.
22      Q     Based upon your training and your experience
23   and all your years in the real estate business, did you
24   recommend that Ken and Betsy sell at this price?
25      A     There was some negotiations that were going on.
                                                             126



1    The buyer, from what I understood, expected to get a
2    little bit off because they were paying cash.
3       Q     Right.
4       A     And they knew that that was a good thing for
5    them.   Maggie shared with me that the Grosses wanted to
6    be able to get the most that they could because they had
7    put a lot of money into the property.
8       Q     All told, do you believe that this was -- this
9    deal that's reflected by Exhibit 47 was in the best
10   interest of the Grosses?
11      A     Absolutely.
12      Q     The last thing I want to ask you about was the
13   closing on this -- on the sale of the Grosses' house was
14   a fairly quick process, right?
15      A     Yes, sir.
16      Q     Is it typical for a closing to be that quick?
17      A     No, sir.
18      Q     Why do you say that?
19      A     Because there's always obstacles to go through.
20   I call them hurdles.   You've just got to fall over them
21   or go around them.
22                 MR. ALDOUS: May I approach, Your Honor?
23                 THE COURT: You may.
24      Q     (By Mr. Aldous) Ms. Taylor, if you'll take a
25   look at Exhibit 42, which has already been admitted into
                                                              127



1    evidence, is that a settlement statement relating to the
2    sale of the Grosses' property?
3       A    Yes, sir.
4       Q    Now, according to the settlement statement,
5    that reflects generally all the charges that get made
6    against, for instance, the borrower or the -- I mean,
7    the seller or the buyer, correct?
8       A    Yes, sir.
9       Q    One thing I wanted to ask you about is on the
10   second page.   It is a line item Number 703.   It says,
11   "Commissions paid at settlement."   The charge for your
12   work on this was $108,702; is that right?   And when I
13   say, "yours," I mean your firm.
14      A    My firm, yes.
15      Q    And is that a standard going rate for what you
16   were doing back then?
17      A    No.
18      Q    Is it a better rate?
19      A    Much better.    I only charged them four and a
20   half percent instead of six percent.   They were a
21   multiple-time client of mine.    And the Grosses had
22   indicated that they were in a situation where they
23   needed to sell and every penny counted, and I was
24   willing to participate.
25                  MR. ALDOUS: Thank you, ma'am.   I'll pass
                                                                128



1    the witness, Your Honor.
2                   THE COURT: Mr. Shaw?
3                   MR. SHAW: Thank you.
4                           CROSS-EXAMINATION
5    BY MR. SHAW:
6       Q      Ms. Taylor, I get to ask you some questions
7    now.    The other work for the Grosses, what have you
8    done?
9       A      In 2002, I sold a home for them that they owned
10   on Fairway View Terrace.
11      Q      Is that in Southlake?
12      A      In Southlake in Timarron. And then a couple of
13   years later, I sold another home for them on Eagle Bend
14   Drive, also in Timarron.
15      Q      Okay.
16      A      And then I sold them a lot in Vaquero, a
17   different parcel.      And subsequent to this one, I sold
18   them another property.
19      Q      Where was that?
20      A      In Vaquero.
21      Q      What street in Vaquero?
22      A      It's a lot that was -- somebody was desperate
23   to sell it for a very little amount of money.
24      Q      All right.    Now you mentioned two witnesses,
25   two people that are going to be witnesses in this case.
                                                               129



1    One is Paul Kramer and one is Scott Simmons.
2       A     They are going to be witnesses?
3       Q     Yes, ma'am.
4       A     Oh.
5                   MR. ALDOUS: Your Honor, let me object to
6    the sidebar comment.
7                   THE COURT: Sustained.
8       Q     (By Mr. Shaw) Will you tell the jury a little
9    bit about -- you said that they were builders; is that
10   right?
11      A     Yes, sir.
12      Q     And high-quality builders?
13      A     Both Paul and Scott are.   They've had extremely
14   good reputations.
15      Q     And the quality of product they build is what?
16      A     Very high quality.   They have been in demand.
17      Q     Did you ever see any contract that the Grosses
18   signed with the -- who they bought this White Winghome
19   from?
20      A     I did not.    I wasn't part of the purchase at
21   that time, and I was not aware of any of the other
22   things that this is about today until 2011 when I got
23   this little thing in the mail.
24      Q     Now, as a licensed real estate broker --
25      A     Uh-huh.
                                                              130



1       Q       -- are you allowed to provide the appraised
2    value for a property?
3       A       What do you mean an appraised value?
4       Q       Well, are you able to perform an appraisal of
5    or provide an opinion of value for real property?
6       A       I can give a BPO, which is a broker's price
7    opinion.    But I can't do a licensed appraisal unless I
8    was a licensed appraiser.
9       Q       And are you a licensed appraiser?
10      A       No, I am not.
11      Q       If somebody goes to the bank and wants to buy
12   some real estate -- let's say it's some real estate
13   you're selling or buying for a client -- does the bank
14   require a formal appraisal?
15      A       Appraisal, yes.
16      Q       And that's different than what you do in terms
17   of evaluation?
18      A       We were basically looking at the same
19   information.
20      Q       What do those people have that are able to do
21   an appraisal in the state of Texas that you don't have?
22      A       A license.
23      Q       Okay.   And do you know what they have to do to
24   get that license?
25      A       No, I do not.   I have never been interested in
                                                              131



1    being an appraiser.
2       Q       All right.    Ms. Taylor, I appreciate your time.
3                     MR. SHAW: I pass the witness
                                                 .
4                     THE WITNESS: Thank you.
5                     THE COURT: Mr. Chaiken?
6                            CROSS-EXAMINATION
7    BY MR. CHAIKEN:
8       Q       Hi, Ms. Taylor.   How are you?
9       A       Hi.
10      Q       You and I have never had an opportunity to meet
11   prior to this moment.      My name's Ken Chaiken.
12      A       Hi.
13      Q       And I'm a lawyer in this case, and I represent
14   Doug Hickok.     You know Doug over there?
15      A       You know something?   I've heard the name, but
16   I've never met the man.
17      Q       Okay. So you know of Mr. Hickok?
18      A       I've heard the name before.
19      Q       I just have a couple --
20                    MR. SHAW: Your Honor, that's Scott
21   Simmons.    And the rule's been invoked and he's a
22   witness.
23                    THE COURT: Sir, you'll need to stay out
24   in the hallway until we call you in for testimony.
25                    MR. CHAIKEN: Thanks, Judge.
                                                                132



1                  THE COURT: You may proceed.
2          Q   (By Mr. Chaiken) Ms. Taylor, if I understood
3    your testimony a couple of minutes ago, you didn't know
4    anything about the events in this case until sometime in
5    2011; is that right?
6          A   Uh-huh.
7          Q   So, in other words, somebody reached out to you
8    and said there's a lawsuit between the Grosses and VSDH,
9    and that's the first time you became aware of any issues
10   between the Grosses and VSDH Vaquero, Ltd., right?
11         A   Yeah.   I couldn't -- I mean, I got served this
12   little notice and somebody handed me a dollar bill.
13         Q   And you didn't know anything else about there
14   being some disagreement or some issue or some concern
15   between the parties back when the house was sold in
16   August of 2009, right?
17         A   I didn't even know about this relationship or
18   this corporation or something that Mr. Shaw is in.     I
19   didn't even know until today that Van was one of the
20   parties in it.      I mean, I just don't know anything about
21   it.
22         Q   And when the Grosses enlisted your services --
23         A   Uh-huh.
24         Q   -- to sell the property, they didn't tell you
25   that they were selling the property in order to rapidly
                                                                 133



1    sell it prior to a buyback date that was in a contract
2    with somebody else?
3       A       No.   They were selling it because they needed
4    to sell it.
5       Q       And why would they need to sell it?
6                     MR. ALDOUS: Objection, Your Honor.
7       A       I mean, I don't --
8                     THE COURT: Sustained.
9       A       They just told me they needed to sell --
10                    THE COURT: Wait, wait, wait.    When
11   there's an objection, you have to wait until I make a
12   ruling.    If I sustain the objection, that means you
13   don't get to answer.     If I overrule the objection, then
14   you do get to answer.     Okay?
15                    THE WITNESS: Okay.
16                    THE COURT: And I sustained the objection,
17   so now he has to ask you a different question.
18                    THE WITNESS: Okay.   Thank you.
19      Q       (By Mr. Chaiken) Did the Grosses tell you what
20   the reason was that they were selling the house?
21                    MR. ALDOUS: Objection, Your Honor.     I
22   just objected to that very exact same question.
23                    THE COURT: Let's see.
24                    THE WITNESS: Am I waiting for someone to
25   tell me?
                                                             134



1                    THE COURT: Yes.   You're waiting for me to
2    make a ruling.
3                    THE WITNESS: Okay.
4                    THE COURT: It's basically the same
5    question.   The ruling is the same, sustained.
6                    MR. CHAIKEN: Thank you, Ms. Taylor.
7                         REDIRECT EXAMINATION
8    BY MR. ALDOUS:
9       Q     Ms. Taylor, I had another question and I
10   totally forgot about this.     Did you -- as part of your
11   actions on behalf of the Grosses, did you, of course,
12   look at the house and tour the house and all the parts
13   of it?
14      A     Yes, sir.    I'm extremely thorough.
15      Q     Right.   Thank you.   With regard to the
16   addition, the casita, were you aware that Mr. -- that
17   Mr. Gross was the general contractor on the addition of
18   the casita?
19      A     Yes.    He had told me that he had built it.
20      Q     From your personal view, do you have any kind
21   of opinion as to what sort of construction went on or at
22   least from an aesthetic standpoint with regard to the
23   casita that you witnessed and looked at?
24      A     You mean how it was constructed?
25      Q     Yeah. You know, that's probably a better
                                                              135



1    question.   What did the casita look like?      Did it look
2    good?
3       A    It looked great.
4       Q    Was there -- I mean,did you think that it
5    looked like the rest of the house?
6       A    It looked as great.    I thought it would have
7    maybe an appeal to a buyer that had a returning child
8    home or some other use.    I was somewhat concerned that
9    sometimes you don't get full value if something --
10   because somebody has to have a need to have that extra
11   space because it wasn't connected on the first floor.
12      Q    I see.   So you're saying like the in-law suite
13   sort of situation --
14      A    Yes.
15      Q    -- or something like that?    But just in terms
16   of if you looked at it, was there anything that you
17   looked at and you said, "Oh, my.    This needs to be
18   corrected or this isn't good," in terms of the way it
19   looked construction wise?
20      A    Absolutely not.     It was beautiful.
21      Q    All right.
22      A    I mean, I was willing to press the envelope on
23   trying to get them more money than the other one.      I had
24   just sold the other one for 2.3.
25                  MR. ALDOUS: Thank you for your time.
                                                               136



1    I'll pass the witness
                         , Your Honor.
2                  THE COURT: Mr. Shaw?
3                  MR. SHAW: Nothing, Your Honor.
4                  THE COURT: Mr. Chaiken?
5                         CROSS-EXAMINATION
6    BY MR. CHAIKEN:
7       Q    (By Mr. Chaiken) I have just one more
8    question, I think one more question for you, Ms. Taylor.
9    When you say you were willing to press theenvelope to
10   get them more money, they decided how much money that
11   they were going to sell this house for; is that right?
12      A    The seller is always the one that makes the
13   decision.   But they do it by asking guidance and having
14   facts and figures.   You know, it's my decision then if I
15   want to take the listing or not.
16      Q    Sure.   And, ultimately, you understood that
17   they were selling the property because they had some
18   need to do so, correct?
19      A    Uh-huh.
20      Q    And you didn't know what that need was?
21      A    When somebody says they need to sell their
22   property, they need to sell their property.
23                 MR. CHAIKEN: Thank you.
24                 MR. ALDOUS: That's it, Your Honor.
25                 THE COURT: All right.      The witness is
                                                            137



1    excused.   You may step down.   You're free to go.
2                  THE WITNESS: Thank you, Your Honor.
3                  THE COURT: You're welcome.
4                  All right.   All right. You may call your
5    next witness, Mr. Aldous.
6                  MR. ALDOUS: Your Honor, at this point,
7    considering the stipulations that we've already put on
8    the record, plaintiff rests.
9                  THE COURT: All right.    Mr. Shaw, you may
10   call your first witness.
11                 MR. SHAW: We will --
12                 THE COURT: Why is everybody standing up?
13   Planning to go somewhere?
14                 MR. SHAW: Your Honor, I don't know if --
15                 THE COURT: Got a party that we've not
16   been invited to?
17                 MR. SHAW: I don't know if you want to
18   entertain a motion at this time.   Otherwise, we'd call
19   Scott Simmons.
20                 MR. ALDOUS: And, Your Honor, I believe
21   that we had already had a discussion about this
22   particular witness.
23                 THE COURT: All right.    So at this time,
24   ladies and gentlemen of the jury
                                   , we're going to take
25   another recess to deal with some matters outside of your
                                                            138



1    presence.   Feel free to enjoy your time in the jury
2    room.
3                  All rise.    The jury is instructed you're
4    not to discuss this case among yourselves or anyone else
5    until such time as this case has either been submitted
6    to you for your deliberationsor you have been
7    discharged as jurors
                        .      The jury is excused.
8                  (Jury exits the courtroom)
9                  THE COURT: All right.    Counsel, you may
10   approach the bench.
11                 Everyone else may be seated.    Feel free to
12   move around the cabin.
13                 (Brief interruption)
14                 MR. ALDOUS: Your Honor, so Mr. Shaw is now
15   calling this builder not because he knows anything about
16   this deal or because he knows anything about the house
17   but because he was in litigation with Mr. Gross, and he
18   wants to call him to come in and say something about how
19   he must be a bad person because he sued me and all this
20   other stuff in an unrelated case.    And my --
21                 THE COURT: So are you calling him for the
22   purposes of making a bill of exceptions or an offer of
23   proof?
24                 MR. SHAW: I am going to call him on
25   opinion and reputation.    And so if the Court won't allow
                                                            139



1    me to do that in personal, I would like to make a bill
2    on it.
3                 THE COURT: Okay.     You may do so.   You may
4    do it right now.
5                 MR. SHAW: All right.     Thank you.
6                 MR. CHAIKEN: Your Honor, but before we --
7                 THE COURT: Always, always, Mr. Chaiken,
8    you could never justlike let it go, right? You always
9    have to like add a little --
10                (Everybody talking at once)
11                THE REPORTER: I can't get everybody.        So,
12   are we on the record because everybody is talking
                                                   ?
13                THE COURT: Evidently so because
14   Mr. Chaiken wants to make some kind of a motion about
15   what?
16                MR. CHAIKEN: The plaintiff just rested,
17   okay, and so I believe I have a right under Rule 268 to
18   make a motion for directed verdict.
19                THE COURT: You do.    But, you know,
20   perhaps you should have said that at the same time that
21   Mr. Shaw said that he wanted to make a motion.
22                MR. CHAIKEN: He said that there were
23   motions that needed to be made.
24                THE COURT: No, he said he had a motion
25   that he wanted to make.
                                                              140



1                   MR. CHAIKEN: Okay. And I have a motion
2    that I would like to make.
3                   THE COURT: All right.   You may make your
4    motion then before we do Mr. Shaw's offer of proof.
5                   MR. CHAIKEN: Okay.   At this time, Your
6    Honor, on behalf of Douglas Hickok, Mr. Hickok orally
7    moves for --
8                   THE COURT: Mr. Chaiken, remember the
9    voice.   The jury can hear through the doors,and your
10   voice is very booming.
11                  MR. ALDOUS: You do have a big voice.
12                  THE COURT: You have a stage voice.
13                  MR. ALDOUS: I think you should be on
14   stage.
15                  MR. CHAIKEN: Mr. Hickok makes a motion
16   for total or partial directed verdict --
17                  THE COURT: Total or partial?
18                  MR. CHAIKEN: In the alternative.
19                  THE COURT: Okay.
20                  MR. CHAIKEN: -- and does so for the
21   following specific reasons:   Number one, Mr. Hickok has
22   been sued for the recovery of damages resulting from the
23   alleged failure on the part of VSDH to buy back the
24   residence in question and for personally not buying it
25   back.    The problem that necessitates that a directed
                                                             141



1    verdict be granted in his favor is that the Grosses
2    struck through the contract remedies allowing them to
3    pursue other remedies at law and stated that their sole
4    and exclusive remedies would be, in the event of a
5    default by the seller, which was VSDH, a pursuit of
6    specific performance or termination of the contract.
7                   The sole and exclusive remedies provision,
8    via the addendum to the contract, which at the time,
9    according to the Grosses, Mr. Hickok was a party to
10   personally, although there's some dispute about whether
11   he was or he wasn't.   They contend that he was.   It did
12   contain some language in the addenda that reinstated the
13   remedy of such other relief as may be provided by law or
14   both, meaning they could seek specific performance or
15   such other relief as may be provided by law.
16                  But the only party in the addendum to the
17   contract that reinstated the language was the seller,
18   and that is VSDH.   VSDH is not Mr. Hickok and Mr. Hickok
19   is not VSDH.   And Mr. Hickok is not the seller.   So to
20   the extent that Mr. Hickok was the -- was, via his
21   signature or representative capacity and/or his
22   initialing of the addendum, a party to the contract for
23   limited purposes or otherwise, Mr. Hickok never agreed
24   to reinstate the stricken remedies and is entitled to
25   rely upon the sole and exclusive remedies provision of
                                                            142



1    Paragraph 15 of the contract, which precludes the
2    pursuit of damages.
3                 Moreover, the evidence in this case is
4    that if Mr. Hickok was a party, he was only party to a
5    purported guarantee; although, he denies that he was a
6    party to such a guarantee or that such a guarantee is
7    enforceable against him as a matter of law.   But if the
8    Court were to find that the guarantee existed and that
9    he was a party to the guarantee, the guarantee is at
10   most a guarantee of performance, meaning that he only
11   guaranteed the buyback of the property in accordance
12   specifically with the buyback option language.
13                The buyback language specifically provided
14   that the buyback date was September the 1st of 2009.
15   And if Mr. Hickok was a guarantor and if Mr. Hickok were
16   suing as a guarantor and there's a finding of that,
17   although, he continues to deny that, he would have had
18   no ability to perform his guarantee obligation, his only
19   guarantee obligation, which is not a guarantee of
20   payment. It's not a guarantee of damages.     It's not a
21   guarantee of anything other than to buy back the
22   property if on September 1st, '09, VSDH failed to do so.
23                By September 1st of 2009, the Grosses
24   already had sold the property to another person.    And
25   Mrs. Gross admitted on the stand that on September 1st,
                                                             143



1    2009, Mr. Hickok could not have purchased the property
2    back; i.e., performed the purported guarantee obligation
3    to buy the property back if VSDH failed to do so on that
4    date in that he did not sign any agreement of indemnity.
5    He did not sign any agreement or guarantee of payment.
6    The guarantee that is purported -- or the purported
7    guarantee speaks nothing about his obligation to pay any
8    financial obligations on the part of VSDH.
9                 He cannot be held liableeither for
10   damages or he cannot be held liable for any purported
11   failure by the Grosses -- I'm sorry -- by VSDH to
12   purchase the property if it was obligated to do so
13   because that obligation would have accrued on the 1st of
14   September of '09, and on that date the property could
15   not be sold or, if stated differently, could not be
16   purchased by Mr. Hickok if he stepped up and tried to
17   buy it.
18                There is also no evidence that he refused
19   to buy it in the record or that he ever communicated his
20   intent not to buy it.   The only evidence is that
21   Mr. Shaw told him -- told the Grosses that there was no
22   personal guarantee.   And the sole evidence is that on
23   behalf of VSDH, Mr. -- I'm sorry -- Mr. Shaw
24   communicated that VSDH was insolvent.   And never was
25   there any evidence that Mr. Hickok communicated to
                                                             144



1    anybody that he would not perform.   But his obligation
2    to perform, if at all, if he had one, if we find in this
3    case that he did have a guarantee obligation, he only
4    owed it after September the 1st.   And at that time, his
5    ability to perform was frustrated and rendered
6    impossible by the Grosses' prior sale of the property to
7    a third party.
8                  Now, in addition, even if all of that were
9    not correct, Mr. Hickok would only be liable under a
10   guarantee if there was an enforceable guarantee against
11   him, which we contend there was not, and if VSDH had
12   actually defaulted on its obligation to buy back the
13   property on 09-01 of 2009.    But there's no evidence of a
14   default by VSDH, thus no -- no default of that nature
15   could trigger any purported guaranteed liability.
16                 In addition, Mr. Hickok has been sued for
17   fraud in a real estate transaction via their third
18   amended counterclaim, which, of course, is styled as a
19   counterclaim because at the time they were in the
20   position of being a defendant.   The Grosses' alleged
21   that Hickok committedstatutory fraud in the real estate
22   transaction in violationof Section 27.01 of the Texas
23   Business and Commerce Code.
24                 The elements of that cause of action are
25   as follows:   There was a transaction involving real
                                                             145



1    estate or stock.   During the transaction, the defendant
2    made a false representation of fact, made a false
3    promise, or benefited by not disclosing that a third
4    parties' representation or promise was false, the false
5    representation or promise was made for the purpose of
6    inducing the plaintiff to enter into the contract, the
7    plaintiff relied on the false representation or promise
8    by entering into the contract, and the reliance caused
9    the plaintiff injury.
10                 And I cite Section 27.01 of the Texas
11   Business and Commerce Code and Schlumberger Tech versus
12   Swanson, 959 S.W.2d 171 at Page 182, which is a Texas
13   1997 Supreme Court case.
14                 THE COURT: Do you have a copy of it?
15                 MR. CHAIKEN: I don't have a copy of the
16   Schlumberger case, but I can provide it to the Court.
17                 Here, there's no evidence of one or more
18   of -- and let me emphasize that there has to be proof on
19   all five of those elements because there is an "and"
20   provision, okay, not an "or" provision in the stated
21   cause of action in the Business and Commerce Code.
22                 Here, there is no evidence that during the
23   transaction Mr. Hickok made any false representation of
24   fact.   There's no evidence that he made any false
25   promise or that he benefited by not disclosing that a
                                                              146



1    representation or a promise made by a third party was
2    false.   In order for a representation or promise to
3    qualify as actionable under 27.01(a)(2) capital (A) and
4    (A)(2)(B) of the Texas Business and Commerce Code --
5                   THE COURT: Do you have a written motion
6    that you're reading from?
7                   MR. CHAIKEN: No, I'm reading from some
8    notes that I have, memos that I've typed from prior
9    motions.
10                  There is -- I'm sorry.   The promise or
11   representation at issue must be false at the time it was
12   made.    The only evidence of any promise or
13   representation made by Mr. Hickok was that he would
14   communicate with Mr. Shaw, and that was in response to a
15   request tendered to him by the broker, Mr. Buttemiller.
16   And he would ask Mr. Shaw whether he would agree to
17   personally guarantee the transaction, and they would
18   consider doing so if a guarantee was provided to them to
19   sign mutually.   The only -- there's no evidence of any
20   actual false representation or promise that Mr. Hickok
21   made for the purpose of inducingthe Grosses to enter
22   into the contract.
23                  In fact, the only evidence that the
24   Grosses introduced is that because there was a denial of
25   the guarantee after the fact, there was -- there was
                                                              147



1    some type of false representation or promise. But
2    because -- but a denial made after the fact is not a
3    false promise or representation to induce the entry of a
4    contract.   There's no evidence that the Grosses relied
5    on any false representation or promise by Mr. Hickok in
6    entering into the contract.    And there's certainly no
7    evidence that they -- that there was any injury or
8    damage in that they sold the property toa third party,
9    depriving VSDH and, if VSDH defaulted, Mr. Hickokof any
10   opportunity to buy the property back on or after the
11   buyback date.    And they did so in lieu of pursuing the
12   remedies of specific performance that they expressly had
13   reserved in the contract as their sole and exclusive
14   remedy.
15                   In addition, Mr. Hickok cannot be held
16   liable as a matter of law based on the evidence in the
17   record, being the contract itself in Paragraph 22 of the
18   contract, which is a merger clause. A merger clause is
19   one that bars a claim for purported representations or
20   agreements allegedly made.    And there's been no
21   representations made.    There's an allegation that an
22   agreement was made by Mr. Hickok before the contract was
23   signed that he and Mr. Shaw would guarantee that they
24   would buy back the property pursuant to the buyback
25   option if the partnership did not.
                                                             148



1                   According to theGrosses, they relied on
2    -- I'm sorry -- the contract -- excuse me -- states that
3    the -- and it's the first amendment to the contract
4    itself, which was introduced into evidence in Paragraph
5    C at Page 2.   The amendment embodies the entire
6    agreement and understanding between the purchaser and
7    seller with respect to its subject matter and supercedes
8    all prior agreements and understandings, written or
9    oral, between purchaser and seller related to that
10   subject matter.   This amendment may be amended, waived,
11   or discharged only by an instrument in writing executed
12   by the party against which enforcement of the amendment,
13   waiver, or discharge is sought.
14                  Furthermore, there is no evidence that
15   there was any reliance or justifiable reliance upon any
16   representation or promise made by Mr. Hickok because no
17   representation or promise was identified as being relied
18   upon with regard to an inducement of the contract.
19                  Consequently, for each and any of those
20   reasons, Mr. Hickok moves for a directed verdict,
21   dismissing the claims of breach of contract against him
22   and dismissing the fraud in a real estate transaction
23   against him and, furthermore, dismissing any claim for
24   damages against him given the sole and exclusive
25   remedies provision of the contract, which the Grosses
                                                             149



1    allege he became a party to.   Thank you, Judge.
2                   THE COURT: Well, let's see.   That was 14
3    minutes nonstop.   Did you breathe?
4                   MR. CHAIKEN: Yeah, I was breathing. I
5    can talk and breathe at the same time.
6                   THE COURT: Mr. Aldous?
7                   MR. ALDOUS: Your Honor, to take a line
8    from O Brother Where Art Thou, that don't make no sense.
9    First of all is the guarantee -- just with regard to the
10   contract portion of the guarantee agreement -- sets
11   forth that Mr. Hickok personally guarantees seller's
12   obligation.    And in the event VSDH fails to fully
13   perform under the terms of thebuyback option, each of
14   his partners set forth here shall be personally
15   responsible.   Mr. Hickok, therefore, guaranteed the
16   obligations and performance of the terms of the
17   agreement.
18                  One of the terms of the agreement was that
19   they struck through -- that the language that was
20   stricken through was, "Seek such other relief as may be
21   provided by law or both:   That means that the principal
22   obligor, being VSDH, agreed to that.    That means that
23   Mr. Hickok has guaranteed that portion of it.
24                  As a result, the question is really
25   whether or not VSDH breached its agreement to purchase
                                                             150



1    the property back.   The answer to that is there's plenty
2    of evidence both ways.   And the evidence specifically is
3    that Mr. Shaw said that they unequivocally would not
4    perform, which -- as an anticipatorybreach of contract,
5    which is the same as breach of contract.   That means
6    that under the agreement itself that if VSDH breached
7    the agreement, a party is relieved from any further
8    responsibility under a contract once the other party's
9    breached, meaning we didn't have to sit there on our
10   hands and wait and see whether or not they were going to
11   admit that they breached the agreement.    We could sell
12   it right away.   And/or the jury has sufficient evidence
13   to make that decision as to who breached first.
14                Two, with regard to the issue of whether
15   or not there's any evidence of a breach -- I mean, I'm
16   sorry -- of fraud in a real estate transaction,
17   Mr. Hickok admitted that this was -- a purports to be --
18   addendum purports to have a guarantee agreement that he
19   believed he was not responsible for it because of some
20   other document that he had to sign.   He was aware it was
21   in the document.   He did not strike through it.
22   Contrary to counsel's assertion, I don't need to get
23   Mr. Hickok to -- I don't have to have him admit it that
24   it was a fraudulent statement.   But there's sufficient
25   evidence to say that it was done with intent.
                                                             151



1                 In fact, as you can recall, his -- once he
2    referred the matter to Van Shaw for response, Mr. Shaw's
3    response was nobody guaranteed this; although, the
4    agreement specifically sets forth a personal guarantee.
5    So there's plenty of evidence of a fraudulent statement
6    made and that it was known to be fraudulent at the time.
7    I believe these issues are just for the jury to decide.
8                 THE COURT: Then there's the damages
9    issue.
10                MR. ALDOUS: I'm sorry?
11                THE COURT: Damages.
12                MR. ALDOUS: Was that with regard to
13   specific performance versus --
14                THE COURT: No, damages.
15                MR. ALDOUS: My understanding of what his
16   argument was is that we were limited tospecific
17   performance, which is clearly not the case.   Once a
18   party has breached, you no longer have to worry about --
19   and you can immediately sue for damages.   The black
20   letter law says as soon as they said, "We're not going
21   to perform," that is a breach.   We can sue them for
22   money damages, and that means the guarantor as well.
23                There is absolutely nothing in the
24   contract that says the guarantor must be given any sort
25   of allowance for him to then go back and say, "Wait a
                                                             152



1    minute.   I demand specific performance."   Even if that
2    was true in this case, he punted the whole issue to
3    Mr. Shaw, who said, "We will not perform."   So there's
4    plenty on that.   And so the way I understand it is he's
5    tying that in, but clearly that is the specific
6    performance and damages.
7                  But with regard to the way this is set up
8    is they agreed to pay 2,851,000 to buy -- purchase the
9    property back.    I've demonstratedthat they didn't do
10   that, which is a breach. They said they weren't going
11   to do it.   We relied on it.   We moved forward.   We sold
12   the house at a loss, a loss that we wouldn't have
13   sustained but for their failure to comply with the
14   contract and to comply with the guarantee and then
15   fraud, of course, on the same damages.
16                 And I will say, Your Honor, that I look at
17   those two causes of action as -- obviously, I don't
18   think that I could elect to win under both, you know.
19                 THE COURT: It's only one recovery.
20                 MR. ALDOUS: Right.    So -- but there's
21   clearly evidence of both.
22                 MR. CHAIKEN: May I respond?
23                 THE COURT: Briefly, Mr. Chaiken, briefly.
24   You've already --just so you know, he responded in five
25   minutes to your 14.
                                                            153



1                 MR. CHAIKEN: That's good.     The problem is
2    his response is inadequate, and let me explain why.
3    Mr. Aldous just made a statement that is patently, okay,
4    incorrect. And it is expressly contrary to what the
5    contract itself says.   First of all, he said that the
6    purported guarantee language was a guarantee to perform
7    all of VSDH's obligations under the contract and that he
8    tried to link that to the obligations of the seller with
9    regard to what remedies can and cannot be pursued.
10                The problem with that argument is that if
11   this is a guarantee, and it's not because under the
12   statute of frauds in order for it to be a guarantee, it
13   would have to be a -- it's a personal -- allegedly a
14   personal undertaking to answer for a default of another,
15   it would have to be in writing and signed personally in
16   a personal capacity by the guarantor.   That is a
17   question of law, which at this point is not the basis of
18   the motion for directed verdict.
19                But the language of the purported
20   guarantee itself in no way purports to obligate the
21   purported guarantors to perform all of seller's
22   obligations under the contract.    To the contrary, all it
23   obligates, if anything, the purported guarantors to do
24   is to guarantee the partnership's obligations under the
25   buyback option.   That's it.   Okay?
                                                              154



1                 And it's only in the event that the --
2    that VSDH fails to perform under the specific terms of
3    the buyback option at which time the putative guarantors
4    agree to be personally responsibleto perform the
5    obligations of VSDH under the buyback option, okay, not
6    to pay damages if VSDH fails.   It's not an indemnity,
7    and it's certainly not an obligation to perform any
8    other of VSDH's obligations under the contract.
9                 Consequently, as a matter of contract
10   construction and as a matter of law, the only party that
11   agreed to reinstate stricken language allowing for the
12   pursuit of remedies as may be provided by law, okay, is
13   the seller. There's nothing but evidence that the
14   seller and Mr. Hickok are not one in the same.     There's
15   no mention of Mr. Hickok, guarantors, or anybody else
16   agreeing to reinstate the stricken language.   The
17   addenda is part of the contract, and the contract says
18   that the sole and exclusive remedies available to the
19   Grosses if the seller fails to comply with the contract
20   for any other reason, okay, and the seller is in
21   default.
22                Okay. So, in other words, they're going
23   to attribute the default to a guarantor.   Okay.   The
24   buyer may, as a sole and exclusive remedy, enforce
25   specific performance, terminate the contract, and
                                                             155



1    receive the earnest money, thereby releasing both
2    parties from this contract.   They never sued for
3    specific performance.   They waived by striking the --
4    the other remedies provided by law by virtue of a
5    failure to perform.   It doesn't reinstate what has been
6    stricken -- what has been contractually agreed upon as
7    waived, okay, in the way of remedies.   And so, at most,
8    they could have sued Mr. Hickok for specific
9    performance, not damages, if he was a guarantor under
10   this agreement.
11                 And the only other comment that I'll make
12   is that there is no evidence of the specific elements of
13   fraud in a real estate transaction, being the five
14   elements.   And they all must be proven, specified in
15   Texas Business and Commerce Code Section 27.01 and the
16   Schlumberger Tech versus -- Technology versus Swanson
17   case.   And Mr. Aldous' statement that there's just
18   evidence of fraud does not identify the evidence in
19   support of each of those elements.   And for those
20   reasons, Your Honor, we would request that the directed
21   verdict be granted in favor of Mr. Hickok.
22                 THE COURT:   The Court is disinclined to
23   grant directed verdict at this point in time; however,
24   the Court is not opposed to reconsidering it after the
25   defendants present their case in chief.
                                                           156



1                 MR. SHAW: Your Honor, without waiving
2    this, I'd like to move as well.   I'll be brief.
3                 THE COURT: All right.
4                 MR. SHAW: Thank you.    Your Honor, I
5    believe that VSDH -- I'm looking at the third amended
6    counterclaim of the Grosses -- are sued under three
7    causes of action.   Roman numeral 5 on Page 6, it's out
8    of the declaratory judgment cause of action
                                               .    That cause
9    of action is barred because VSDH, Hickok, and Shaw filed
10   suit in 2008 initially.   Once the case is at the Court,
11   a party is then not in a counterclaim allowed to bring a
12   declaratory judgment action because the matters are
13   already before the Court and pending.   And this case --
14                THE COURT: What case in 2008?
15                MR. SHAW: 2009, I'm sorry.    The original
16   petition filed in this case was by VSDH, followed
17   shortly thereafter by interventions of Shaw and Hickok.
18   And so once those appearances were made to the Court and
19   the cause of action was teed up, the Grosses were not
20   allowed thereafter to file a declaratory judgment action
21   and seek to invoke the remedies allowed for under the
22   Declaratory Judgment Act.   So we move for directed
23   verdict on that.
24                On the fraud in the real estate
25   transaction, the Grosses seek damages against and
                                                              157



1    liability against VSDH based on that cause of action.
2    There is no evidence or certainly insufficient evidence
3    to support any finding of fraud against VSDH.    There was
4    -- along the same lines as Hickok, there was a
5    discussion that -- that VSDH would personally guarantee
6    the buyback, would guarantee the buybackand it did.
7    And that's what we're here about.    But there is no fraud
8    as to VSDH.   And so we move for a directed verdict on
9    that count as well.
10                   Finally, on the breach of contract cause
11   of action, we move for directed verdict because the
12   contract clearly provided that once the Grosses entered
13   into a contract with another party, the buyback
14   provision was terminated.    Further, the contract
15   provided that the Grosses -- that VSDH had until
16   09-01-2009 to execute the buyback.    The Grosses sold the
17   property by that time.    And, as such, the Grosses have
18   waived any rights that -- for liability or damages
19   against VSDH.    So we move for directed verdict on all
20   three of those.
21                   THE COURT: Mr. Aldous?
22                   MR. ALDOUS: Your Honor, with regard to
23   the declaratory judgment action cause of action, his
24   argument is a legal one.    It's not based upon the
25   evidence that wasproduced in trial.      So, I don't think
                                                             158



1    -- and I'll firmly state on the record, I don't believe
2    the Court has to decide that on directed verdict.   But
3    it can be dealt with at a later time.   And with respect
4    to the breach of contractand the fraud portion of it, I
5    would state that the representations -- the false
6    representation of Mr. Hickok were made both individually
7    and as a representative of VSDH.   And so they would
8    apply as well.   I'll rest on my other arguments that I
9    made with regard to the breach of contract.
10                  MR. SHAW: I don't understand the false
11   representations that were referred towith Hickok that
12   would impugn any fraud on VSDH.
13                  MR. ALDOUS: The law is pretty clear, I
14   think, that an agent of a company that commits fraud is
15   responsible.   Both the company to which he responds to
16   is vicariously responsible, and he is personally
17   responsible as well.   Irrespective of the fact that it
18   relates to a guarantee, it has everything to do with
19   whether or not he made a false statement, knowing it was
20   false at the time.   And so that's what I would say.
21                  THE COURT: The Court repeats its previous
22   ruling, disinclined to grant a declaratory -- I mean,
23   excuse me -- a directed verdict at this time, but is
24   open to considering it after the defendant has presented
25   -- or defendants have presented their case in chief.
                                                             159



1                   MR. SHAW: Thank you, Your Honor.
2                   MR. ALDOUS: Can we have a moment for a
3    restroom break?
4                   THE COURT: You may.
5                   (Recess taken)
6                   THE COURT: Raise your right hand.
7                   (Witnesses sworn)
8                          JAMES SIMMONS,
9    having been first duly sworn, testified as follows:
10                        DIRECT EXAMINATION
11   BY MR. SHAW:
12      Q    All right.    Sir, will you please state your
13   full, legal name?
14      A    James Scott Simmons.
15      Q    How old are you?
16      A    Forty-four.
17      Q    You presently live in Dallas?
18      A    Yes.
19      Q    And before that you -- I'm sorry -- before that
20   you lived in Southlake?
21      A    Before that, I lived in Vaquero in Westlake.
22      Q    Okay.     In the last15 years, tell us where
23   you've lived generally, please.
24      A    Last 15 years, I lived in Southlake and in
25   Westlake and in Dallas.
                                                            160



1       Q    All right.   Westlake is where Vaquero is?
2       A    Yes.
3       Q    And your profession, please?
4       A    I'm a home builder.
5       Q    How long have you been a home builder?
6       A    Twenty-five years.
7       Q    And in your business dealings, have you had an
8    opportunity to meet a guy named Ken Gross, who's the
9    movant in this lawsuit?
10      A    Yes.
11      Q    Generally, when did you first meet Mr. Gross?
12      A    It was around 2006.
13      Q    And what did that --how did you come to know
14   him?
15                  THE COURT: You can speak a little bit
16   louder, just not much.
17                  MR. SHAW: Okay.
18                  THE COURT: Cathye's straining over there
                                                          .
19                  MR. SHAW: Yes, Your Honor
                                            .
20      Q    (By Mr. Shaw) And how did you come to know him?
21      A    Mr. and Mrs. Gross owned a property that was
22   next door to me.
23      Q    That was in Vaquero?
24      A    Yes.
25      Q    And that was a raw piece of land?
                                                             161



1       A    Vacant lot.
2       Q    And so you had -- you were living next door to
3    that little vacant lot; is that right?
4       A    Yes.
5       Q    And, generally, what was the business or the
6    dealings you had with Mr. Gross regarding his lot or
7    your home?
8       A    Well, my wife and I got sued personally over us
9    living downhill from the Grosses' vacant lot.   I think,
10   in my opinion, we were the first people in the state of
11   Texas that's probably ever happened to, and it cost us a
12   lot of money anda lot of agony and a lot of years of
13   going through a lawsuit.   And we finally went to a -- to
14   a head and got settled. They didn't live up to their
15   end of the bargain they were supposed to.
16      Q    Okay.   So Gross sued you for generally what?
17   What did -- that you understood was he suing you for?
18      A    They basically sued me and my wife to try to
19   get money from us.
20      Q    And it ultimately settled?
21      A    Yes.
22      Q    And as a result of the settlement, was
23   Mr. Gross required to undertake certain activities?
24      A    Yes.    He was regarding thatlot.
25      Q    His vacant lot?
                                                           162



1       A    Their vacant lot.
2       Q    And did Mr. Gross undertake the activities he
3    was required to undertake per the settlement agreement?
4       A    Not during the -- I'm sorry.    Excuse me. Not
5    per the settlement agreement.
6       Q    Not timely?
7       A    Not timely.
8       Q    And what happened then?
9       A    I had a countersuit.
10      Q    You had a countersuit?
11      A    We had a countersuit to force them to do their
12   end of the bargain of the settlement.
13      Q    All right.    And approximately how manyyears
14   did this go over?
15      A    It took almost five years for this to go
16   through and about $200,000 worth of attorney fees to my
17   wife and myself.
18      Q    And this was 2006 to 2011, or what years would
19   you say it was?
20      A    Yes.    I believe it was completed in maybe '13.
21      Q    Okay.     So 2013?
22      A    2012, maybe, 2012 at the end.
23      Q    It started when approximately, the lawsuit?
24      A    It started around 2007.
25      Q    Did you have dealings with Mr. Gross before the
                                                              163



1    lawsuit was filed?
2         A   Yes, before it was filed.
3         Q   Okay.    And he -- you and he conferred about
4    various matters?
5         A   We thought we were going to try to work this
6    out together against the developer and try to get the
7    developer and the civil engineer to work through it.
8    And for whatever reason, they elected to sue my wife and
9    I.
10        Q   Mr. Gross did --
11        A   Yes.
12        Q   -- and his wife? And so have you had any other
13   dealings with Mr. Gross?
14        A   No.     I never want to.
15        Q   Did you form an opinion about Mr. Gross'
16   character for truth -- his propensity for truthfulness?
17        A   Yes.
18        Q   And what opinion did you form?
19        A   My opinion is he does not live up to what he's
20   supposed to do.    He's untruthful and unethical.
21        Q   Did you have lawyers and there were other
22   parties in that case as well; is that right?
23        A   Yes.
24        Q   And have you spoken to those people about
25   Mr. Gross and about how Mr. Gross conducts himself
                                                             164



1    generally?
2       A    Yes.
3       Q    And have you determined from people in that
4    community if Mr. Gross has a reputation?
5       A    Yes.
6       Q    Does Mr. Gross have a reputation?
7       A    He absolutely does.
8       Q    Is his reputation good or bad?
9       A    It's not good.
10      Q    Would you say it's bad?
11      A    I'd say it's pretty bad, yes, extremely bad.
12      Q    Extremely bad.    The -- and would that be an
13   extremely bad reputation for telling the truth?
14      A    Yes.
15      Q    Do you believe that that's the reputation that
16   Mr. Gross holds in the community?
17      A    Yes.
18      Q    Who do you -- do you know some specific people
19   that hold that reputation of Mr. Gross?
20      A    Yes.
21      Q    Who are they, some of them?     Just list some.
22      A    My attorney, both of my attorneys, John Sloan,
23   Jim Moore, Roxann Taylor, who I saw in the hallway
24   walking out of here.    She's the first one that told me
25   to watch out for him.
                                                            165



1       Q      All right.    I -- Mr. Simmons, I appreciate you
2    coming.
3                   MR. SHAW: I pass the witness.    Counsel
4    may ask you some questions.
5                           CROSS-EXAMINATION
6    BY MR. ALDOUS:
7       Q      Mr. Simmons, my name is Steven Aldous.   You and
8    I have never met before; is that right?
9       A      Correct.
10      Q      You understand that I represent the Grosses in
11   this matter?
12      A      Yes, sir.
13      Q      I don't want to argue with you about whether or
14   not you're right or wrong, but would you agree with me
15   at least that your experience in the legal system with
16   Mr. Gross has effected the way you see Mr. Gross?
17      A      Absolutely.
18      Q      Would you agree with me that you have no
19   knowledge of the dispute that's ongoing between VSDH and
20   the Grosses related to 2004 White Wing Cove?
21      A      I have no knowledge.
22                  MR. ALDOUS: Pass the witness.
23                         REDIRECT EXAMINATION
24   BY MR. SHAW:
25      Q      You do have -- know the reputation of
                                                             166



1    Mr. Gross, though?
2       A    Yes.
3       Q    Do you know the facts of this case
                                             ?
4       A    I don't know the facts of this case.
5                   MR. SHAW: All right.     Pass the witness.
6                   Your Honor, we offer -- we offer that
7    testimony.
8                   THE COURT: Court's ruling remains the
9    same.
10                  MR. SHAW: Scott, I certainly appreciate
11   you coming.
12                  All right, Your Honor.   We have a second
13   witness ready, Hap Stern, the lawyer.     He's here in the
14   hall.
15                  THE COURT: For the same purposes?
16                  MR. SHAW: No, no.
17                  THE COURT: So you're ready to bring in
18   the jury?
19                  MR. SHAW: That's the only one for that.
20   Yeah.
21                  THE COURT: Okay.    All rise. You may
22   bring in the jury.
23                  MR. CHAIKEN: Your Honor, could I have two
24   minutes to confer with Mr. Shaw?
25                  THE COURT: You may.
                                                              167



1                 MR. CHAIKEN: We might move this along
2    faster if we have this conversation.
3                 (Jury enters the courtroom)
4                 THE COURT: I'm sorry.        Ladies and
5    gentlemen of the jury, go back in the jury room please.
6                 (Jury exits the courtroom)
7                 (Brief recess taken)
8                 THE COURT: All rise.       You may bring in
9    the jury.
10                (Jury enters the courtroom)
11                THE COURT: You may be seated.
12                You may call your next witness.
13                MR. CHAIKEN: Your Honor, defense calls
14   Van Shaw.
15                THE COURT: Raise your right hand, please.
16                (Witness sworn)
17                THE COURT: You may be seated.
18                You may proceed.
19                MR. CHAIKEN: Thank you, Judge.      And I
20   will sit down.    I promise.
21                         EVAN LANE SHAW,
22   having been first duly sworn, testified as follows:
23                        DIRECT EXAMINATION
24   BY MR. CHAIKEN:
25      Q    Good afternoon, Mr. Shaw.
                                                             168



1       A       Good afternoon.
2       Q       State your full name for the record.
3       A       Evan Lane Shaw.
4       Q       You've heard testimony and you have yourself
5    acknowledged that you are one of the limited partners of
6    VSDH Vaquero Limited Partnership, right?
7       A       That is correct
                              .
8       Q       Tell the jury a little bit about yourself, your
9    background, and your education, and what you've been
10   doing for the past 35 years.
11      A       I was born in Dallas Baylor.   I graduated from
12   W.T. White High Schoolin Dallas in 1974.      Like
13   Mr. Hickok, I went to Texas Tech and stayed six months,
14   and then I transferred to the University of Texas at
15   Austin.    I graduated in 1978 with an accounting degree.
16   I went directly to law school at SMU.     I graduated from
17   that school with a law degree in 1981.
18                  Along the way, I -- at Texas, I was an
19   accounting major. I was going to be a tax lawyer, was
20   my plan.    And I obtained my Certified Public Accountant
21   designation while I was in law school.     So my plan was
22   to have my designation, get out, and be a tax lawyer.       I
23   did that for a year.    I went to Chicago with U.S. Steel,
24   and I was a tax lawyer in Chicago for that company.
25                  That wasn't really a good fit for me and
                                                               169



1    found out a little too late tax law probably wasn't
2    where I was going to be interested.   And so I came back
3    to Dallas in 1982 and been here ever since.     I worked
4    for a friend of mine's dad who was a lawyer until 1990.
5    From 1990 forward, I had my own firm. I've got two
6    lawyers that work for me, Collen Meyer, a 30-year-old
7    fellow.   He's been with me about four years.   And I've
8    got Janet Randle. Janet's probably 62 --
9                  THE COURT: She would not appreciate that,
10   Mr. Shaw.
11                 MR. SHAW: She would not.    And she doesn't
12   look it, though.
13      A      But she's been with me about eight years and we
14   do a lot of civil trial litigation.   I'm married.   Got
15   married in 1988 and 27 years ago.   I have two children,
16   25 and 20 -- just turned 25 and 23, two boys, the same
17   age as Mr. Hickok's.   And so they're out of the house
18   now, and so it's just my bride and I and my work.
19      Q      Mr. Shaw, can I call you Van?   Is that okay?
20      A      Why not.
21      Q      It's hard for me to call you Mr. Shaw. Van,
22   you have already spoken at length in this case sitting
23   over here, and one of the things that you testified to
24   -- not testified, but you mentioned in a question was
25   that back in the September of 2009 timeframe, you had
                                                             170



1    the money, if it was needed, to put up to buy the
2    property that we're talking about back from the Grosses,
3    and -- you know, if there was an obligation to perform
4    the buyback.      Do you recall that testimony?
5       A      I do.
6       Q      Now, is there any secret that you've been a
7    successful attorney and real estate investor?
8       A      I don't know about any secret about it.   I
9    certainly don't blab anything about it, but I've done
10   well.
11      Q      And I'm not asking you to brag about it, but, I
12   mean, you've been involved in a lot of transactions over
13   the years, right?
14      A      Certainly.
15      Q      And a lot of legal cases, right?
16      A      A lot.
17      Q      You have a law license, right?
18      A      I do.
19      Q      Law license is in good standing, always has
20   been?
21      A      Yes, sir.
22      Q      Okay.    And explain to the ladies and gentlemen
23   of the jury what one of the major requirements of
24   holding a law license is in terms of dealing with other
25   people.   Do you have to be truthful?
                                                                 171



1                   MR. ALDOUS: Your Honor, let me object to
2    this line of testimony.      First of all, this witness has
3    not been listed as any kind of expert witness, and it's
4    improper bolstering to use the code of ethics as a
5    witness.
6                   THE COURT: Sustained.
7       Q       (By Mr. Chaiken) Mr. Shaw, there's been some
8    testimony in this case that after Ken and Betsy Gross
9    exercised the buyback option in the contract we've been
10   talking about here for several days that you were
11   communicating with them on behalf of VSDH.     Do you
12   recall that testimony?
13      A       Certainly.
14      Q       And you were present this morning, were you
15   not, when Mrs. Gross testified that -- that you had made
16   some comments about the solvency of VSDH in June of 2009
17   that she believes implied that VSDH would not perform
18   the buyback obligation.      Did you hear that testimony?
19      A       I did.
20      Q       Okay.    So what I'd like you to do is I'd like
21   you to explain to the jury when you were communicating
22   -- first of all, when you were communicating with
23   Mrs. Gross and Mr. Gross back in the June of '09
24   timeframe, this is before the buyback date but after the
25   notice that they wanted you to buy -- or VSDH to buy it
                                                             172



1    back, why were you talking to the Grosses at all?
2       A    Well, the Grosses inquired and I didn't have
3    any reason not to talk to them.
4       Q    Under the contract -- and you reviewed the
5    contract, right?
6       A    I did in -- right at the end of April or 1st of
7    May 2009.   I had not seen it for several years.
8       Q    And when you got the contract, did you
9    determine whether or not there was any obligation in it
10   for VSDH -- or any language in it that called for VSDH
11   to tell the Grosses one way or the other whether it
12   would perform the buyback obligation?
13                 MR. ALDOUS: Objection, Your Honor.
14   That's calling for expert testimony concerning the
15   contents of the contract from a witness who's not been
16   designated as an expert.
17                 THE COURT: Sustained.     Just remember, no
18   speak objections, Mr. Aldous.
19                 MR. ALDOUS: Sorry, Your Honor.
20                 THE COURT: I have admonished Mr. Chaiken.
21   It's only fair that I should admonish you as well.
22                 MR. ALDOUS: Thank you, Your Honor.    I
23   apologize for my passion.
24                 THE COURT: Mr. Chaiken?
25                 MR. CHAIKEN: I'm just waiting to see if
                                                             173



1    he'll apologize for the bad joke.
2                 THE COURT: You may proceed.
3       Q    (By Mr. Chaiken) Now during the June of '09
4    timeframe, were you and Mr. and Mrs. Gross talking about
5    options that might be available in response to their
6    anxiousness, if you will, to find out what was going to
7    happen with this buyback?
8       A    We discussed some.
9       Q    And why did you comment to Mr. and Mrs. Gross
10   in the June of '09 timeframe that VSDH was -- was not
11   solvent at that time?
12      A    Well, VSDH had until September 1 to close.      I
13   was concerned whether VSDH was going to financially have
14   the money to close if it wanted to close.   So I didn't
15   want to surprise the Grosses at the end if VSDH wanted
16   to close and did not have the money.   So I wanted to
17   make sure that they knew, you know, where we were on
18   that.
19      Q    Now, the Grosses have indicated that you
20   indicated to them that VSDH was going to go bankrupt.
21   Did you ever tell them it was going to go bankrupt?
22      A    Never did.
23      Q    And when you were describing the concept of
24   insolvency -- let me rephrase. You were in the
25   courtroom when Doug Hickok was on the stand and Doug was
                                                                 174



1    asked in June of '09 was -- was VSDH insolvent.       You
2    remember that testimony?
3       A       I do.
4       Q       Okay. And his answer to the question was, "It
5    absolutely wasn't insolvent."     Recall that testimony?
6       A       Certainly.
7       Q       So when you were reporting to the Grosses that
8    in June of '09 VSDH was not solvent, what did you mean
9    by that?    What were you -- what were youcommunicating
10   to them?
11      A       I'm a CPA.   I know what solvency means.   I
12   don't -- Mr. Hickok's a smart guy, but I don't know if
13   he knows the definition of solvency, at least the same
14   definition that I know.     But solvency to me means that
15   you don't have the cash readily available to meet your
16   obligation.    That's all it means.   It means you don't
17   have the cash readily available. It doesn't mean
18   anything other than that.
19      Q       Now, were you -- were you at some point during
20   the June, July, or August timeframe, end of September
21   timeframe, were you developing any concerns about
22   whether there was a legal fight on the horizon with the
23   Grosses?
24      A       I saw the Grosses hire attorneys and engage in
25   activities.    I knew that was certainly a problem.
                                                                175



1          Q      And were you concerned about it?
2          A      Well, I mean, I'm a lawyer so I don't know --
3    when you say, "concerned," I don't know what you mean
4    exactly by that.        You know, I certainly didn't want one
5    if I -- you know, that's -- I wasn't looking forward to
6    it.       But I didn't think from a liability or damage
7    standpoint --
8                      MR. ALDOUS: Objection, Your Honor.
9                      THE COURT: Sustained.
10         Q      (By Mr. Chaiken) When I was asking about
11   whether you were concerned about it, I mean, were you
12   concerned that the conversations were developing
13   increasing intention and that it sounded like, you know,
14   hey, the Grosses are talking about litigation, not
15   whether it was liability or anything, but was there
16   litigation.      You know, here comes litigation.   If you
17   don't do what we want, here's litigation.       Did you have
18   that concern?
19         A      I did.
20         Q      Okay.    And is it fair to say that hairs on your
21   back of your neck started to rise with respect to that?
22         A      Well, I don't know exactly what you mean by
23   that.      I mean, did I -- did I get the idea there was --
24   the Grosses were lawyered up and litigation was coming?
25   Yeah, I got that idea.
                                                              176



1       Q       All right.   Now I want to show you an exhibit
2    that has been discussed and that has been previously
3    marked as Gross Exhibit 83.     And I'm going to start --
4    because it's an email chain, I'm going to start
5    backwards and then move to the front page, okay?
6       A       That's all right.
7                   MR. ALDOUS: Could I get an exhibit
8    number?
9                   MR. CHAIKEN: Yes, 83.
10                  THE COURT: I'm sorry?
11                  MR. CHAIKEN: Eight, three.
12                  THE COURT: 83 Gross or 83 VSDH?
13                  MR. CHAIKEN: It's Gross.
14      Q       (By Mr. Chaiken) And, see here, you've got
15   this May 14th, 2009 email from Betsy Gross to you
16   talking about it's been a while since she bumped into
17   you walking up the street in Cabo.     Were you on a yacht
18   in Cabo?
19      A       I don't really like the water.   I've never
20   owned a yacht, never been on one but once.     So, no.
21      Q       And then Mrs. Gross says we went to Jamaica
22   this year for spring break. Instead, it talks about how
23   Doug had directed her to you to discuss the next steps
24   with the house in Vaquero and it talks about how they
25   had notified Doug of the desire to exercisethe buyback
                                                                177



1    clause. And Mrs. Gross says, "However, we would really
2    like to chat with you regarding various options, which
3    could be mutually beneficial.       Is there any chance
4    you'll be out in this area sometime soon so we could
5    discuss?      If not, can you provide some options for
6    getting on the phone ASAP?"
7                      And you responded, "Good to hear from you.
8    Hope all is well. I am planning to review the
9    documentation and am glad to talk.       I want to let you
10   know that the entity that sold the home is not
11   financially solvent, so that will no doubt impact where
12   this goes.      Please call me when you can."     Did I read
13   that right?
14         A      You did.
15         Q      Is that your email?
16         A      What's the date ofmy email, please?      What's
17   the top of that?
18         Q      Your email is May 17 -- excuse me.    I'm sorry.
19   I should have pulled that down when I was reading from
20   it.       May 17th of 2009.
21         A      Okay.
22         Q      Okay?   Now, when you were communicating to
23   Mrs. Gross --
24         A      May I make one comment?
25         Q      I'm sorry?
                                                                178



1       A     This is in all caps.     I'm not yelling.   I just
2    see better in all caps.
3       Q     I see.    Okay.   Thank you.
4                    MR. ALDOUS: I'm sorry, Your Honor.     I
5    didn't hear him. Could you speak up?
6                    MR. CHAIKEN: You want to hear in all
7    caps?
8                    MR. ALDOUS: I apologize.
9       Q     (By Mr. Chaiken) And so when you told
10   Mrs. Gross that the entity's financial solvency will no
11   doubt have impact where this goes, were you referring to
12   the discussion of the options that she wanted to chat
13   with you about?
14      A     I was.
15      Q     Okay.    And Mrs. Gross responded to you shortly
16   thereafter with an email dated May 18th, 2009.       And she
17   talked about you coming out to see the changes to the
18   house.   And then she talked about a couple of options.
19   You see the options that are there?     One of which is,
20   "We can follow the existing terms and consummate the
21   buyback in September."     And then she says, However,
                                                   "        we
22   are very interested in one of several alternatives."
23   And then the first one is, "Execute an early buyback
24   with a discount off the buyback price for said early
25   termination."     You see that?
                                                                 179



1       A       I do.
2       Q       And then it says something about a rental
3    agreement or an outright purchase by the Grosses of the
4    property at a discounted price. And then it talks about
5    a combination of one of the above or a purchase of
6    another lot.       Did I read that right?   Did I read that
7    correctly?
8       A       Are you under C?
9       Q       Right here.
10      A       You said right here.
11      Q       I'm just saying --
12      A       I'm looking on my screen.    Maybe it shows --
13   I'm looking at my screen.      Is that where you are?
14      Q       Did I just properly characterize what
15   Mrs. Gross was doing was she was offering settlement
16   options?
17      A       There were several options there.
18      Q       Okay.    And when you fast forward it to the
19   August of 2009 timeframe, you were told that the Grosses
20   might sell the property to somebody else, right?
21      A       There's an email, I believe, that says that.
22      Q       And what did you understand that the
23   consequences might be under the contract if the Grosses
24   -- at the time if the Grosses entered into a contract
25   with somebody else and sold the property to somebody
                                                               180



1    else before the buyback date?
2       A      Well, I didn't see that email for a day or two.
3    So when you say, "at the time," what -- what are you
4    saying?
5       Q      What I'm saying is that in August of 2009 when
6    -- when the Grosses were giving notice that they were
7    going to sell the property to somebody else and that
8    they had a buyer in mind, did you understand what the
9    contract said if they sold the property to somebody
10   else?
11      A      Yeah.
12      Q      And did you have an understanding as to what
13   would happen to the buyback option if that happened?
14      A      Yes.
15      Q      Okay.    What was your understandingbased upon
16   your review of the contract?
17                    MR. ALDOUS: Objection, Your Honor.     That
18   calls for expert testimony regarding the effectiveness
19   of the contract.
20                    THE COURT: Sustained.   Rephrase it.
21      Q      (By Mr. Chaiken) I'm going to show you the
22   buyback option.     And this is from Gross Exhibit 3.    And
23   is this the provision that you reviewed with regard to
24   what might happen under the contract to the buyback
25   option if the Grosses entered into a contract to sell
                                                              181



1    the property to somebody else?   Can you see that?
2       A    Is this Gross 3?
3       Q    Yes.    It's the contract, Gross 3.
4       A    It's easier -- I can't see it that well.       Let
5    me go get my glasses. Okay.    Yes, sir. I see it.
6       Q    Okay.   And in reviewing the contract at the
7    time and this provision at the time, what did you
8    understand the contract said would happen?    If the
9    Grosses, as the buyers, entered into a contract to sell
10   the property, what would happen to the buyback option?
11      A    Well, I didn't look at it in August of 2009.
12      Q    Okay.
13      A    But I had looked at it in May of 2009.
14      Q    Forgive me.   Okay. With that qualification,
15   what did you come to understand would happen if they
16   entered into a contract with somebody else?
17      A    Well, I knew that the -- that the document
18   said, "should buyer enter into a contract to sell the
19   property, the buyback option will immediately terminate
20   and will no longer be available to the buyer."   That was
21   in a letter from the Grosses as well.
22      Q    All right.    Now, I want to show you -- and this
23   document is already in evidence.    But forgive me because
24   I don't recall what number it is.   But somebody will be
25   able to tell me here in a moment.
                                                               182



1                     MR. ALDOUS: Well, Your Honor, I object.
2                     MR. CHAIKEN: Okay.
3                     MR. ALDOUS: You can't do that.   I'm
4    sorry.
5                     MR. CHAIKEN: Fair enough.   I want to make
6    a record of what it is, but --
7       Q      (By Mr. Chaiken) Do you recall seeing an email
8    that's been put up and is in evidence where the Grosses
9    were asking you if they could go ahead and sell the
10   property to somebody else but reserve the buyback
11   option?
12      A      Yes.    I think that may be the same one I just
13   referred to that referred to that language.
14      Q      Okay.    And what would have been problematic
15   about agreeing to let them sell the property while
16   reserving the buyback option?
17      A      Well, if the property was sold, then there
18   would be no possibility of performance.
19      Q      And if they entered into a contract with
20   somebody else under the language of Addendum A that you
21   just referred to, by doing so, they would invalidatethe
22   buyback option, right?
23      A      Yes, sir.
24      Q      So, in essence, they were asking you for --
25   were they asking you kind of for their cake and eat it
                                                            183



1    too to let us sell it and we can come back to you?
2                   MR. ALDOUS: Objection to the sidebar.
3                   THE COURT: Sustained.
4                   MR. ALDOUS: Thank you.
5                   MR. CHAIKEN: I'll move along.
6       Q       (By Mr. Chaiken) Now I want to go back to
7    Exhibit 83, Van.
8       A       Okay.
9       Q       Okay.   And in response to --I found the
10   exhibit.    This is Exhibit Gross 38.
11      A       Okay.
12      Q       So this email says -- it was written to you by
13   Mr. Gross.    And it says, "Per your offer yesterday to
14   allow us to enter into an agreement with a prospective
15   buyer, can you give us that agreement?     Recall that our
16   contract says that after May 1st, 2009, if we enter into
17   a contract to sell the home, the buyback option goes
18   away."   Did I read that right?
19      A       Yes, sir.
20      Q       Okay. So if I read this correctly, was this
21   telling -- was this confirming that you had previously
22   told them the day before that they could go ahead and
23   enter into an agreement with a prospective buyer, but
24   that you wouldn't waive the -- the going away with the
25   buyback option if they did?
                                                               184



1                      MR. ALDOUS: Objection, Your Honor,
2    leading.
3                      THE COURT: Sustained.
4       Q       (By Mr. Chaiken) Well, what did you tell them
5    the day before about entering into an agreement with the
6    prospective buyer?
7       A       I didn't tell them they could enter into an
8    agreement with a prospective buyer.
9       Q       Well, did you ever tell them that they could
10   enter into a prospective buy --agreement with the buyer
11   and not have the buyback option go away?     Was there any
12   time that you told them that?
13      A       I want to make sure I'm clear what you're
14   asking me.    Did I ever tell them they could enter into a
15   contract and the buyback option would still exist?
16      Q       Yes.    Did you ever tell them that?
17      A       I never did.   No.
18      Q       And did you understand that's what they were
19   asking of you in the second paragraph of Exhibit 38
20   where they asked you, "Can we enter into a contract and
21   a sale while not altering the buyback language
22   responsibility as it existed in our contract?"
23      A       I think generally that's right.
24      Q       All right.   Now, back to Exhibit Number 83,
25   after Mrs. Gross sent you her email talking about
                                                           185



1    several options and next steps, you wrote her back and
2    you restated that the entity was not financially
3    solvent, so that will no doubt have a huge impact on our
4    discussion. And then it saidnot sure when I will be
5    out that way, but maybe we can meet somewhere else.   I'm
6    not sure where your office is, but that may be a
7    possibility. Please let me know when and where you
8    suggest. Did I read that right?
9       A    Well, I misspelled, "please."   I want to
10   apologize for that; but, otherwise, you did.
11      Q    And so you were telling the Grosses,you know,
12   not withstanding the financial position
                                           of -- what were
13   you telling them about the plans of
                                       VSDH notwithstanding
14   its financial condition with regard to not really having
15   cash at that time.   Were you telling them -- continue
16   talking to them?
17      A    Yeah.
18      Q    Were you willing to talk to them?
19      A    Certainly.
20      Q    Okay.   And did you ever send anything in
21   writing to the Grosses that you know of that said VSDH
22   is not going to perform the buyback obligation?
23      A    Did not.
24      Q    Now, $64,000 question, everybody wants to hear
25   what Van Shaw has to say about it.   The Grosses say that
                                                            186



1    you talked to them on the telephone and you told them
2    VSDH will not perform under the buyback option.    Did you
3    ever tell them that, Mr. Shaw?
4       A    Never, ever.
5       Q    Is there any doubt in your mind about that,
6    Van?
7       A    I know I never told them that.
8       Q    How do you know?
9       A    Because VSDH was considering what to do.
10      Q    And when did VSDH believe that it had the
11   ability to continue considering that until -- what time?
12      A    It knew what it had.     It had until September 1.
13      Q    Now during the conversations that you had with
14   the Grosses, you told them there was no personal
15   guarantee by you or Doug Hickok in the transaction.    Do
16   you recall seeing -- hearing discussion about that and
17   seeing emails that you wrote to that effect?
18      A    Yes, sir.
19      Q    Okay.   Why did you tell the Grosses there was
20   no personal guarantee in the transaction?
21      A    Because when I looked at the document in May of
22   2009, there was no personal guarantee.
23      Q    And what caused you to conclude there was no
24   personal guarantee?
25                MR. ALDOUS: That's objectionable.     That
                                                                187



1    calls for legal conclusion.
2                   THE COURT: Sustained.
3                   MR. CHAIKEN: Van, thanks.
4                   I pass the witness.
5                   MR. ALDOUS: Sir, are you --
6                   I'm sorry, Your Honor.
7                   THE COURT: Mr. Aldous, you may proceed.
8                         CROSS-EXAMINATION
9    BY MR. ALDOUS:
10      Q       Are you telling this jury that you were
11   straight up with the Grosses when you just said that you
12   never once told them that VSDH wasn't going to perform?
13      A       I never told them VSDH was never going to
14   perform.
15      Q       You see this email right here?   I'm having a
16   little trouble with this, Mr. Shaw.     It says, June 15,
17   2009. It's Exhibit 36.     It's an email that's directed
18   to both you and to Doug Hickok.      Do you see it?
19      A       I'm going to appreciate it if you'll give me a
20   little courtesy when you talk to me.
21                  THE COURT: Mr. Shaw, it's not so nice on
22   the witness stand.
23                  MR. SHAW: It is not.     I take that back.
24   Okay.   I've got it in front of me.
25      Q       (By Mr. Aldous) Do you see on here that it's
                                                              188



1    directed to both you and to Mr. Hickok?
2       A     I do.
3       Q     Do you see in here where it says, "Doug, I
4    called and left a message on your voicemail regarding
5    our contract with 2004 White Wing Cove. I spoke to
6    Van and he said that VSDH does not have enough money to
7    honor our contract and buy back the house. Thus, VSDH
8    does not intend to perform our contract.    Do you see
9    that?
10      A     I read that.
11      Q     Did you ever once respond by email or otherwise
12   and say, "You know what?    That's not accurate"?
13      A     I don't know if I responded.
14      Q     Until you got up on that witness stand?
15      A     Certainly I've said that before.
16      Q     Where is it?
17      A     Thus VSDH does not intend to perform is nothing
18   I ever said, never, ever.
19      Q     I'm saying, why didn't you just extend the
20   courtesy and say, "You know what? You guys got it
21   wrong.   Mr. and Mrs. Gross, that is not what I said."
22   You didn't ever do that, did you, sir?
23      A     This wasn't written to me, counsel.
24      Q     Do you see your name attached to it up there?
25      A     I see where I was copied. Whether I read it,
                                                              189



1    got it, reviewed it, I don't know.    It's directed to
2    Doug.
3       Q    Doug, your partner in VSDH?
4       A    Doug was my partner in VSDH.
5       Q    Now when you got this statement, did Mr. -- did
6    Mr. Hickok call you up and say, "Van Shaw, did you tell
7    them that VSDH wasn't going to perform? "
8       A    You know, this was in 2009, six years ago.       I'm
9    not going to be able to tell you if he called me up and
10   what he said.   But I can tell you I never told them
11   that.
12      Q    Well, here's my question:    Although you're now
13   telling the jury that you don't recall ever saying that
14   to them, I'm saying where is your response to this
15   particular email to say, "You know what, folks?   You
16   just have it wrong"?
17      A    There was no -- I don't recall not sending it
18   to them because I never said it to them.
19      Q    Okay.   Well, this is in June -- I'm sorry, June
20   15 of 2009; is that right?
21      A    Yes, sir.
22      Q    Now if you will, go to Exhibit 38.    Do you see
23   that this is an email?   Also, this one's directed to
24   you. It's dated June 28, 2009.
25      A    I do.
                                                                 190



1          Q      And do you see that it says, "Per your offer
2    yesterday to allow us to enter into an agreement with a
3    prospective buyer, can you give us that agreement?
4    Recall that our contract says that after May 1st, 2009,
5    if we enter into a contract to sell the home, the
6    buyback option goes away."        Now my question to you, sir,
7    is:       Did you ever respond to this email in writing?
8          A      They had a lawyer.   I don't know if I responded
9    to this in writing.      But when they get lawyered up, that
10   changes things.
11         Q      Is that every man for himself?
12         A      That was not every man for himself. But it
13   certainly changes things when they have a lawyer
14   representing them.      And, here, they're trying not to let
15   me know they've got a lawyer representing them, but I
16   knew it.
17         Q      Was that the way, because it was a bcc on
18   there?
19         A      That's right.
20         Q      So you knew that they were lawyered up.   So
21   that prevented you from responding to the email and
22   saying "Hey, I didn't tell you that. I want to make
23   sure you understand?"
24         A      Here's what I'm thinking.   I'm thinking they're
25   writing things because they're looking down the road and
                                                                 191



1    they've got a lawyer that says, "Write them this.     Write
2    them that.    Write them this. Let's set up Shaw for
3    this, this, and this.    Let's do that.   Let's set him up
4    and then let me, as the lawyer, hide behind the scene
5    and then orchestrate stuff so it looks like it's just
6    Shaw and the Grosseswhen it's not."
7                   I'm not going to play that game.    I'm not
8    going to let them get me into that game, sir.      That's
9    not proper.   It's not fair.   If the lawyer wants to come
10   out front, let's talk.   But I'm not going to do that.
11      Q      Well, VSDH had a lawyer all along.    That was
12   you, right?
13      A      My lawyer was disclosed.   I'm there in the wide
14   open.   I'm not having Mr. Hickok write letters and bcc
15   me, "Doug, write this.   Write that.   Do this."   I'm not
16   doing that.
17      Q      You would like it if you were the only lawyer
18   in the deal and it upset you that the Grosses hired a
19   lawyer?
20      A      It didn't upset me at all, counsel.
21      Q      Well, tell us if you would --
22                  (Talking at the same time)
23                  THE COURT: Wait a minute, gentlemen.     You
24   can't talk over one another.
25      A      What upset me is that they're trying to set me
                                                             192



1    up with the lawyer hiding in the bushes.     I never hid in
2    the bushes, never, ever.    That's not my style.
3       Q       (By Mr. Aldous) Right.   And so your response to
4    this email -- since you're not hiding in the bushes,
5    your response to this email that says, "You know what?
6    I never told you that I would let you sell this house."
7       A       Counsel, this is written for a setup for this
8    day.   That's what this is written for.    Get the lawyer.
9    Get him out front and let's talk.     But to do this -- I
10   never said that.    And let me ask you this. If I said it,
11   why does it say, "Per your offer yesterday to allow us,
12   can you" --
13                  THE COURT: Mr. Shaw?
14                  MR. SHAW: I'm sorry, Your Honor.
15      Q       (By Mr. Aldous) Mr. Shaw, is there any reason
16   that you would not respond to this, other than the fact
17   that you believe that it was a lawyer and it was a setup
18   for you?
19      A       I knew it was a setup, Counsel. And that's why
20   I didn't respond.
21      Q       Is there any reason why you didn't just respond
22   to say, "You can sell the home, but the contract is what
23   the contract says, and we're going to rely on it"?
24      A       Counsel, it was a setup.   That's why I didn't
25   respond.
                                                            193



1       Q      Let me ask you this.    So on Exhibit 59, when
2    you got the email from -- on August 18, 2009 that asked
3    you about selling the home, you didn't respond to that
4    either?
5       A      Sir, this is a setup.   All of this
6    communication, the Grosses were fully represented.
7                  MR. ALDOUS: May I approach, Your Honor?
8                  THE COURT: You may.
9       Q      (By Mr. Aldous) Let's talk about setups.
10                 THE COURT: Wait a second.     What is the
11   document?   You have to provide a copy.
12                 MR. ALDOUS: Can I just see if it's in the
13   notebook real quick?
14                 THE COURT: Yes.     You may approach.
15                 MR. ALDOUS: Thank you, Your Honor.
16      Q      (By Mr. Aldous) Mr. Shaw, let me hand you, just
17   for refreshing your memory, exhibit -- that's been
18   marked Gross Exhibit 64.   Is that the original petition
19   that you filed in this court against the Grosses?
20      A      It is.
21      Q      And you signed this as the lawyer on behalf of
22   VSDH.   That's Vaquero Venture, Ltd., right?
23      A      I did.
24      Q      And it's dated July 5th, 2009, correct, on the
25   file stamp?
                                                              194



1       A       I think that's two, but I'm not sure.
2       Q       My bad.   July 2nd, 2009, correct?
3       A       Yes, sir.
4       Q       And then you also at the same time filed -- or
5    shortly thereafter filed petitions in intervention on
6    behalf of yourself; is that correct?
7       A       I did.
8       Q       And on behalf of Mr. Hickok; is that correct
                                                           ?
9       A       I did.
10      Q       And one of the things that you do after you
11   file a lawsuit is you serve the opposing party; isn't
12   that right?
13      A       That's the process.   I don't personally do
14   that.
15      Q       Right.    You hire somebody, typically a process
16   server, and do that?
17      A       Or the sheriff.
18      Q       And sometimes if you know that they're
19   represented -- the other side is represented by a
20   lawyer, sometimes you can just call the lawyer and say,
21   "Will you accept service?"
22      A       That's right.
23      Q       Now, did you ever before August 18th, 2009,
24   have a process server serve the Grosses with this
25   lawsuit?
                                                                  195



1          A      I issued service.
2          Q      I'm sorry.   Maybe I -- let me rephrase it.     Did
3    you hire a process server to serve the Grosses prior to
4    August 18th of 2009?
5          A      I'm sure we did.    I don't handle that part of
6    it at my office.
7          Q      Are you aware that the Grosses had no idea that
8    they had been sued as of August 18, 2009?
9          A      I heard Mr. Gross testify to that two days ago.
10         Q      Do you understand that maybe they wouldn't be
11   sending you an email on August 18th, 2009, asking you to
12   agree to this if they'd known they'd been sued?
13         A      I don't believe -- I believe they knew they'd
14   been sued because when you get -- file suit, it shows up
15   on a record.      And their lawyers were in Dallas.    And
16   they get a record of what suit's filed, who the
17   plaintiff is, who the defendant is, and what court it's
18   in.       They get that the next day.
19         Q      You mean if you subscribe --
20         A      Electronically.
21         Q      -- to the service
                                  ?
22         A      That's right.
23         Q      And if you subscribe --
24         A      They were at Cooper & Scully.
25                     THE COURT: You can't talk at the same
                                                              196



1    time, gentlemen.
2       A     They have that service.
3       Q     (By Mr. Aldous) Now are you testifying as a
4    matter of fact here today, Mr. Shaw, that you know that
5    they had that service?
6       A     They --
7       Q     I'm talking about their lawyers.   You know
8    their lawyers were subscribed to that service?
9       A     In the past, I have known that their lawyers
10   were subscribed to that service because I'll be called
11   after I file a lawsuit.   And they'll call me and say,
12   "Hey, I saw you did this."   It's a big firm.   Somebody
13   will call me on it.
14      Q     Did you do anything to serve the lawyers with
15   that lawsuit?    In other words, you already know -- you
16   say it's a setup.   Did you send any of the petitions
17   over to the lawyers and say, "You know what?    I sued
18   y'all.   I know y'all are out there.   Come on out"?
19      A     Well, I already knew it.   I didn't have to send
20   them anything.
21      Q     Let me just see if I can get to the end of
22   this. Would you agree with me that you never sent an
23   email to the Grosses, whether they'd lawyered up or not,
24   retracting your statement that VSDH was insolvent?
25      A     I never sent an email and said it was solvent,
                                                             197



1    if that's what you'resaying.
2       Q     Or saying that my previous email saying it was
3    insolvent is not accurate?
4       A     I never sent an email saying if it's insolvent,
5    it's inaccurate
                   .
6       Q     And isn't it true, sir, that ever since the
7    beginning of this time, every email that you said --
8    you've said that no personal guarantee existed in this
9    contract?
10      A     I don't know about every email I ever sent.
11   But certainly my opinion was there was no personal
12   guarantee.
13      Q     And in terms of your representations to the
14   Grosses, you've always maintained that there was no
15   personal guarantee by you or Mr. Hickok in this case?
16      A     When you say, "always maintained," I don't know
17   how many times.   We talked about that at least once.
18   And I told them I looked at the document and there was
19   no personal guarantee.
20      Q     All right.
21      A     I don't -- I don't know.   I certainly never
22   said that every time we talked to them or anything like
23   that.
24      Q     Well, let me flip it over.   Let me flip it
25   over.   You never sent them an email saying that my
                                                             198



1    previous statement that there was no personal guarantee
2    is not right?
3       A     My personal -- my previous statement was right.
4    There is no personal guarantee.
5       Q     I'm sure that my tricky lawyer question is
6    probably a little bit hard to understand, but let me ask
7    it again.   You never sent an email to the Grosses
8    saying, "My previous statement that there is no personal
9    guarantee in this contract is hereby withdrawn or
10   changed or different"?
11      A     I never changed my mind, so I'm not going to
12   write the Grosses and say I changed my mind when I
13   hadn't changed my mind
                          .
14                   MR. ALDOUS: I'll pass the witness
                                                     , Your
15   Honor.
16                   THE COURT: Mr. Chaiken?
17                       REDIRECT EXAMINATION
18   BY MR. CHAIKEN:
19      Q     All right.   Van, just a couple more questions
20   here.
21      A     What exhibit is that, please?
22      Q     Actually, let's do it this way.   This is Number
23   59, okay?   On August the 18th, Mr. and Mrs. Gross are
24   telling you that they have a contract to sell the
25   property or somebody had offered $2,415,000 in cash with
                                                              199



1    a short closing. You see that?
2       A      I do.
3       Q      So they're telling you somebody else did so.
4    And what time did Mr. Kenny G -- I'm sorry -- Kenny G,
5    3558, Mr. Gross, what time did -- does it look like he
6    sent that email to you on August the 18th?
7       A      The email reflects 7:24 p.m.
8       Q      Okay.   And then it says, "Unless we hear
9    otherwise by noon tomorrow from either or both of you,
10   we will be moving forward with this deal.    Recognize
11   that there are still many issues that may stop the
12   transaction," you know, so on and so forth.
13                  And then it said, "If you would like to
14   discuss any of these issues, please call me at this
15   number.   Otherwise, we will assume you approve of this
16   sale."    You see that?
17      A      I'm looking for the"otherwise."
18      Q      Right over here.   Right there, see,
19   "otherwise."
20      A      Okay.   I'm with you
                                  .
21      Q      "We will assume youapprove of this sale."
22      A      Yes, sir.
23      Q      So at 7:24 in the evening on August 18th, which
24   is after business hours, and you don't know where you
25   were that day and whether you were even reading emails,
                                                             200



1    right?
2       A     Kind of.
3       Q     Okay.   What's, "kind of"?
4       A     Well, I think I was enrolling my oldest one in
5    college at that time out of town.
6       Q     All right.    And --
7                 MR. ALDOUS: I'm sorry.      I didn't --
8                 THE WITNESS: Out of town, enrolling my
9    oldest one in college.
10                MR. ALDOUS: Oh, you said enrolling my
11   oldest one in college.    Okay.   I'm sorry.   I just didn't
12   hear.
13      Q     (By Mr. Chaiken) And the Grosses are stating
14   to you, "Unless we hear otherwise by noon tomorrow from
15   either or both of you, we're going to go forward with
16   the deal," right?     That's what it says.
17      A     It says, "Otherwise, we will assume you approve
18   of this sale."
19      Q     They didn't give you much time to approve or
20   disapprove, did they?
21                MR. ALDOUS: Objection, leading.
22                THE COURT: Sustained.
23      Q     (By Mr. Chaiken) Did they give you a
24   reasonable amount of time to respond to that if they
25   really expected a response from you?
                                                             201



1       A     No.
2       Q     And -- and they told you, if we don't hear from
3    you -- we don't know if we will -- we're just going to
4    assume that it's okay, that you approve it, right?
5       A     That's what it says.
6       Q     Now here's the question.    Did you ever approve
7    the sale?
8       A     No, I never approved the sale.
9       Q     And did they ever offer you the opportunity,
10   prior to the buyback date, to buy the property for
11   $2,415,000 in cash?
12      A     They did not.
13      Q     Would you have considered such an offer if they
14   had made it to you?
15      A     I would have.
16      Q     Is it something you might have considered
17   doing?
18      A     I don't know at this stage, you know, six years
19   ago.   I was certainly -- I'm open to looking at it,
20   certainly.     And I was investigating along -- you know,
21   some of what was going on.    So I don't know.
22      Q     And they went ahead and they did it, right?
23   They entered into a --
24      A     I've learned that now
                                  .
25      Q     -- contract with that buyer, right?
                                                               202



1       A     I learned that now.
2       Q     Okay.   And you had never told them they could
3    do so and keep the buyback option in force and effect,
4    right?
5       A     I never agreed that they could enter into a
6    contract and maintain the buyback option.
7       Q     And they asked you that, right, if you would?
8       A     If this is what we talked about earlier, I'm
9    not changing my testimony.
10      Q     All right.   Now, I want to ask you a real quick
11   question here, which is:   When you filed a lawsuit
12   against the Grosses on behalf of VSDH, what was the
13   lawsuit complaining about?
14                  MR. ALDOUS: Objection, Your Honor,
15   relevance.
16                  THE COURT: What's the relevance,
17   Mr. Chaiken?
18                  MR. CHAIKEN: He opened the door to the
19   filing of lawsuit.
20                  THE COURT: What's the relevance?
21                  MR. CHAIKEN: The relevance is that he
22   filed the lawsuit for a reason, not -- not as a
23   posturing maneuver. And I'd like him to explain what
24   the reason he filed the lawsuit was to the jury.
25                  THE COURT: I'll allow it.    I will also
                                                                 203



1    point out to you that it is 5:23 p.m.
2                      MR. CHAIKEN: Just about there.
3          A      The reason was the failure of the Grosses to
4    obtain approval for the construction.
5          Q      (By Mr. Chaiken) And when you filed that
6    lawsuit, Mr. Aldous asked you, well, why didn't you --
7    why didn't you send a copy over to the lawyers, the
8    Grosses' lawyers?       At that point in time, did you even
9    know who the lawyers were?
10         A      I think I did.
11         Q      Okay.   And how did you come to know?
12         A      I had met with the Grosses prior to that, and I
13   think I had learned it then.
14         Q      Okay.   And I last want to talk to you about
15   Exhibit 36.      It says -- Mr. Aldous talked to you about
16   it.       It says, "Mr. Gross wrote Mr. Hickok and told him
17   that he had spoken to you and you said that VSDH does
18   not have enough money to honor our contract and buy back
19   the house; thus, VSDH does not intend to perform per our
20   contract."
21                     Now, is there any doubt in your mind about
22   whether you told Mr. Gross what is written there?
23         A      Well, I certainly told the Grosses that the
24   company had solvency issues.       I never ever said it
25   wasn't going to buy back the property.
                                                              204



1       Q       And did you ever tell the Grosses that VSDH
2    does not intend to perform per our contract?
3       A       I never said that.
4                   MR. CHAIKEN: I will pass the witness
                                                       .
5                   THE COURT: Mr. Aldous?
6                   MR. ALDOUS: I have nothing further, Your
7    Honor.
8                   THE COURT: The witness is excused. You
9    may step down unless you wish to question yourself.
10                  MR. SHAW: No.
11                  THE COURT: All right.    It's now 5:25 p.m.
12   We will recess for the day.
13                  During this overnight recess, the jury is
14   under the same instructions that you've been previously
15   given.   You're not to discuss this case among yourselves
16   or with anyone else until such time as the case has been
17   either submitted to you for your deliberations or you
18   have been discharged as jurors.
19                  All rise.   The jury is excused for the
20   evening.    You'll return tomorrow morning at 10:00 a.m.
21                  (Jury exits the courtroom)
22                  THE COURT: All right.    We stand in recess
23   for the day.
24                  (Proceedings concluded for the day)
25
                                                        205



1    STATE OF TEXAS         )
2    COUNTY OF DALLAS       )
3            I, Cathye Moreno, Official Court Reporter in
4    and for the County Court of Dallas County, Texas, County
5    Court At Law Number One, State of Texas, do hereby
6    certify that to the best of my ability the above and
7    foregoing contains a true and correct transcription of
8    all portions of evidence and proceedings requested in
9    writing to be included in the Reporter's Record, in the
10   above-styled and -numbered cause, all of which occurred
11   in open court or in chambers and were reported by me.
12           I further certify that this Reporter's Record
13   of the proceedings truly and correctly reflects the
14   exhibits, if any, admitted by the respective parties.
15           WITNESS MY OFFICIAL HAND this the 16th day of
16   October, 2015.
17                      /s/ Cathye G. Moreno
18                      Cathye G. Moreno, Texas CSR #6076
                        Expiration Date: 12/31/16
19                      Official Court Reporter
                        County Court at Law No. 1
20                      600 Commerce Street, Suite 550
                        Dallas, Texas 75202
21                       cathyemoreno@sbcglobal.
                                              net
                        (214)653-7496
22
23
24
25
TAB 28
                                                              1



1                         REPORTER'S RECORD
                       VOLUME 6 OF 10 VOLUMES
2                      CAUSE NO. CC-09-05232-A

3    VSDH VAQUERO VENTURE, LTD.       )IN THE COUNTY COURT
                                      )
4      Plaintiff/Counter-Defendant, )
                                      )
5    V.                               )
                                      )
6    KEN GROSS and BETSY GROSS        )AT LAW NO. 1
                                      )
7      Defendants/Counter-Plaintiffs, )
                                      )
8    V.                               )
                                      )
9    EVAN L. SHAW and DOUGLAS M.      )
     HICKOK                           )
10                                    )
       Intervenors/Counter-Defendants,)DALLAS COUNTY, TEXAS
11
12
13   -------------------------------------------------------

14                       TRIAL ON THE MERITS
15   -------------------------------------------------------
16
17              On the 18th day of June 2015, the following

18   proceedings came on to be heard within the presence of

19   a jury in the above-entitled and -numbered cause before
20   the Honorable D'METRIA BENSON
                                 , judge presiding, held in
21   Dallas, Dallas County, Texas.
22              Proceedings reported by computerized stenotype
23   machine.    Reporter's Record produced by computer-aided
24   transcription.
25
                                                  2



1                        APPEARANCES:
2    MR. STEVEN E. ALDOUS
     SBN 00982100
3    Forshey Prostok, LLP
     500 Crescent Court
4    Suite 240
     Dallas, Texas 75201
5    (214)716-2100
     ATTORNEY FOR DEFENDANTS/COUNTER-PLAINTIFFS
6    KEN GROSS and BETSY GROSS
7       - AND -

8    MR. KENNETH B. CHAIKEN
     SBN 04057800
9    Chaiken & Chaiken, PC
     Legacy Town Center III
10   5801 Tennyson Parkway
     Suite 440
11   Plano, TX 75024
     (214)265-0250
12   ATTORNEY FOR INTERVENOR/COUNTER-DEFENDANT
     DOUGLAS M. HICKOK
13
        - AND -
14
     MR. EVAN LANE (VAN) SHAW
15   SBN 18140500
     Law Offices of Van Shaw
16   2723 Fairmount Street
     Dallas, Texas 75201
17   (214) 754-7110
     ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT
18   VSDH VAQUERO VENTURE, LTD;
     INTERVENOR, VAN SHAW; and
19   THIRD-PARTY DEFENDANTS
     VSDH VAQUERO HOMES, INC. AND
20   VSDH HOMES, INC.
21
22
23
24
25
                                                                     3



1                            INDEX

2    JUNE 18, 2015                               PAGE       VOL.
3    PROCEEDINGS..............................     4             6
4
     VSDH'S
5    WITNESSES           Direct      Cross   Voir Dire      Vol.
     Paul Kramer          11           36        25           6
6
7    ALL PARTIES REST AND CLOSE
                             ...............           39        6
8    GROSSES' MOTION FOR DIRECTED VERDICT.....         41        6
9    COURT'S RULING ON DIRECTED VERDICT MOTION         54        6
10   COURT'S RULING ONDIRECTED VERDICT MOTION          61        6
11   COURT'S RULING ON DIRECTED VERDICT MOTION         76        6

12   HICKOK'S MOTION FOR DIRECTED VERDICT.....              79           6
13   GROSSES' MOTION FOR A TRIAL AMENDMENT....         84        6
14   COURT'S RULING ON THE TRIAL AMENDMENT....         88        6
15   COURT'S RULING ON DIRECTED VERDICT MOTION         91        6
16   COURT'S RULING ON DIRECTED VERDICT MOTION         96        6
17   COURT'S RULING ON DIRECTED VERDICT MOTION         99        6

18   FORMAL CHARGE CONFERENCE......
                                 ...........       106           6

19   COURT'S CHARGE TO THE JURY...............      123          6
20   CLOSING ARGUMENT BY MR. ALDOUS...........      136          6
21   CLOSING ARGUMENT BY MR. SHAW.............      149          6
22   CLOSING ARGUMENT BY MR. CHAIKEN..........      158          6
23   END OF PROCEEDINGS.......................     177           6
24   REPORTER'S CERTIFICATE...................     178           6

25                    EXHIBIT INDEX (NONE)
                                                                  4



1                          PROCEEDINGS
2                         June 18, 2015
3                 THE COURT: All right.    Counsel may
4    approach.
5                 (Jury is not present in the courtroom
                                                      )
6                 THE COURT: Mr. Chaiken?
7                 MR. CHAIKEN: Can we go on the record?
8                 THE COURT: You're on the record.
9                 MR. CHAIKEN: I didn't see her hands
10   moving.
11                Judge, yesterday during one of the bench
12   conferences, I heard -- well, maybe I didn't hear.     I'm
13   not sure what I heard that requires a little
14   clarification. One issue that concerned me is whether I
15   call any additional witness or not.   Mr. Aldous made a
16   statement during one of the bench conferences that the
17   Court has already decided the issue of whether
18   Mr. Hickok is a party to the contract and/or that the
19   Court has decided that he is a guarantor.
20                I'm not aware of the Court having made
21   that finding on either of those issues.   But if the
22   Court has made that finding, then I would like a record
23   of the fact that it happened so it will dictate the
24   course of how we continue our defense.
25                And, secondly, if the Court has not made
                                                                5



1    that finding, then I don't -- I have not had a clarity
2    as to whether the Court is of the opinion that those
3    issues are the questions for the Court to decide as
4    opposed to questions to be submitted to the jury.    And
5    that also dictates the course of the continuation of our
6    defense.   So can I get some guidance on those two
7    points, please, or at least some clarification?
8                   THE COURT: Mr. Aldous?
9                   MR. ALDOUS: Your Honor, it's my
10   understanding that the time for me to make a motion for
11   directed verdict with respect to any of the claims
12   raised by them is after they've rested, which I intend
13   to do.    It's my understanding the Court has told us that
14   the real issue for jury determination is whether the
15   underlying contract was breached, but that the law is
16   that the guaranty is clear and unambiguous -- in other
17   words, not a jury issue -- that the signatures of
18   Mr. Hickok in any capacity and the initialing is
19   sufficient as a matter of law to bind him on a guaranty.
20                  So the issue really for the jury to decide
21   is whether or not the underlying agreement was breached;
22   and, therefore, whether or not the guaranty has come
23   into fruition.   And I intend to make a motion in that
24   regard.
25                  THE COURT: Okay.   Any rulings that would
                                                               6



1    substantiate that?   I know that I denied summary
2    judgment, but I don't know that I made any specific
3    determinations.   But it's been a while, so...
4                  MR. ALDOUS: I don't believe that Your
5    Honor has made a ruling in that regard.
6                  MR. CHAIKEN: And I don't believe so
7    either, but the second component of my -- so that takes
8    care of the first of my two concerns because I've now
9    got clarification that that hasn't been decided at this
10   point.
11                 The second concern that I have, though,
12   was what it is that the Court has told us is to be tried
13   to the jury, and -- and ,again, I don't -- I don't have
14   the same degree of clarity that Mr. Aldous believes he
15   has with regard to whether, a, the question of whether
16   Mr. Hickok is a party to the contract is an issue to go
17   to the jury or whether the Court believes is a legal
18   question.   And when I say, "party," I mean, did he
19   execute the contract; and then, secondly, whether the
20   issue of whether he -- there's a sufficient guaranty to
21   have an enforceable guaranty obligation in the contract.
22                 And so I do know that under the statute of
23   fraud, 2701, the question of whether or not a party who
24   undertook -- did, in fact, undertake in accordance with
25   the requirements of the statute of fraud to answer for a
                                                               7



1    default for another is a question of law.   And so I
2    don't think there's any dispute with regard to the fact
3    that the Court made a decision as to whether or not if
4    Mr. Hickok is a party to the contract.   There is --
5    whether there is or isn't a guaranty, that's an
6    enforceable event. But on the question of whether he is
7    a party by virtue of signature, I don't share
8    Mr. Aldous's clarity.
9                 THE COURT: Are you talking about in his
10   individual capacity?
11                MR. CHAIKEN: I'm talking about in his
12   individual capacity, is he a party to the contract?
13                THE COURT: I don't know that that's ever
14   been an issue that's been raised.
15                MR. ALDOUS: Only with respect to the
16   guaranty. It's whether or not his signature is
17   sufficient to bind him to the guaranty.     I don't
18   characterize it the same way he does.
19                MR. CHAIKEN: Well, that -- the issue --
20                MR. ALDOUS: I think that's a --
21                MR. CHAIKEN: Well, the issue is founded
22   upon signature and whether he signed it or not, and I
23   believe that's a fact question.   I didn't put it in my
24   proposed charge due to this ambiguity that I left the
25   court with yesterday based on the comments that were
                                                                  8



1    made.   But -- but in terms of whether that's an issue
2    the Court believes is a legal question or not, you know,
3    I -- because there is -- there is in the PJC, there is
4    an opportunity in a breach of contract case to submit a
5    question as to whether Party A and Party B entered into
6    an agreement.    Okay.
7                    Well, the elements of entering into an
8    agreement are that they sign the agreement, you know,
9    especially if it has to be in writing.     And so the
10   question is:    Are we submitting that question to the
11   jury, or is it a legal question for the Court to decide?
12                   THE COURT:.   I think that's an issue that
13   arises after we get to the charge conference.
14                   MR. SHAW: Okay.
15                   MR. CHAIKEN: Okay.
16                   THE COURT: But as of this point in time,
17   there is no pleading that I'm aware of that says that
18   Mr. Hickok in his personal capacity was a party to the
19   contract, but there is a pleading I'm aware of that says
20   that he, in his personal capacity, is liable as a
21   guarantor.
22                   MR. CHAIKEN: Right.   Okay. As long --
23                   THE COURT: That's what's being tried
24   before the Court.
25                   MR. CHAIKEN: Well, but -- and just for
                                                               9



1    one other point of clarity, okay --
2                  THE COURT: Your three minutes have
3    passed.
4                  MR. CHAIKEN: He has an affirmative
5    defense in the case, okay, denying execution. Okay.
6    And it's a verified defense under Rule 94.    And so that
7    issue is in play by virtue of his defense either way.
8    Okay. And so I just -- the reason I'm raising all of
9    this is because I heard Mr. Aldous say yesterday that
10   the Court has already decided that these were legal
11   questions and not jury questions.
12                 I heard him say it again just a moment
13   ago, and I don't believe the Court has decided that one
14   way or the other.   And I just want to make sure that I
15   know where we stand on that issue.
16                 THE COURT: The Court stands where the
17   Court just said it stood.
18                 MR. CHAIKEN: Okay.     Fair enough.
19                 THE COURT: Is there anything else before
20   we bring in the jury?
21                 MR. ALDOUS: Your, Honor, do you need the
22   flash drive with the charge on it or was my email
23   sufficient?
24                 THE COURT: The email is sufficient.
25                 MR. CHAIKEN: I'm going to -- I'm going to
                                                              10



1    offer one amendment towhat I submitted this morning,
2    but I'll do that afterwards.
3                  THE COURT: Okay.   You may bring in the
4    jury.
5                  All rise.
6                  (Jury enters the courtroom)
7                  THE COURT: You may be seated.
8                  MR. CHAIKEN: Your Honor, I apologize in
9    advance.   I've got something going on with my throat.
10   And so I do have water, but I keep coughing
11   nevertheless.
12                 THE COURT: All right.   Mr. Shaw?
13                 MR. SHAW: Your Honor, we call Paul
14   Kramer.
15                 THE COURT: All right.   Is he in the
16   hallway?
17                 MR. SHAW: Yes.
18                 THE COURT: Would you pleaseraise your
19   right hand?
20                 (Witness sworn)
21                 THE COURT: You may be seated.
22                 You may proceed.
23                 MR. SHAW: Thank you.
24                          PAUL KRAMER,
25   having been first duly sworn, testified as follows:
                                                          11



1                       DIRECT EXAMINATION
2    BY MR. SHAW:
3       Q    Sir, your full legal name?
4       A    Paul James Kramer.
5       Q    How old a man are you?
6       A    Sixty-three.
7       Q    What town do you live in?
8       A    Colleyville.
9       Q    What is your profession?
10      A    I'm employed as a builder.
11      Q    The -- give us a little history on you, please.
12   Where were you raised?
13      A    California.
14      Q    And when did you come to Texas on a full-time
15   basis approximately?
16      A    Late 1980s.
17      Q    What was the reason?
18      A    I accepted a position with a plastic
19   manufacturing firm based in Grand Prairie.
20      Q    And what was your position?
21      A    My initial position was salesman.
22      Q    How long did you stay with them?
23      A    From about 1987 until 2000.
24      Q    When you left, in what position were you?
25      A    I was president of the company.
                                                             12



1       Q    And when you -- since you left, generally tell
2    the jury what you've been doing for employment.
3       A    Building homes, high-end residential homes.
4       Q    What part of Texas have you done that in
5    generally?
6       A    Most of it in northeast Tarrant County,
7    Colleyville, Southlake, Westlake, a few in Dallas.
8       Q    The jury might not begenerally familiar with
9    where Colleyville is. Where is it from here generally?
10      A    Colleyville's about 20 minutes from here.     It's
11   between Dallas and Fort Worth, southwest of the airport.
12      Q    Southwest of the airport?
13      A    Yes.
14      Q    All right.    And you said you're presently
15   employed by a company?
16      A    Yes.
17      Q    What's your position?
18      A    Manager.
19      Q    What's the name of the company?
20      A    Shawco Construction,LLC, d/b/a Paul Kramer
21   Construction.
22      Q    That has kind of a ring toit, Shawco. What is
23   my relation to that company?
24      A    You own it.
25      Q    And how long have I owned thecompany you work
                                                                 13



1    for?
2       A       Since late 2012.
3       Q       The -- tell the jury a little bit.   When did
4    you first meet me approximately?
5       A       I met you, I believe, in the early or
6    mid-1980s.    You did legal work for the plastic company
7    that I eventually went to work for.
8       Q       All right.   And did I continue in that legal
9    work all the way through the time you left the company?
10      A       I believe so.
11      Q       Okay.   And then after you left the company, you
12   and I developed a friendship while you were there; is
13   that right?
14      A       That's correct.
15      Q       And after you left the company, you were
16   building homes for yourself; is that right?
17      A       I built homes.    I owned a company myself that I
18   built homes and I built spec homes and built homes for
19   clients.
20      Q       All right.   Approximately how many homes have
21   you built?
22      A       130.
23      Q       And, generally, what price range would you say
24   most of those were in?
25      A       The average is a little bit over
                                                                 14



1    three-and-a-halfmillion.       The range is about 800,000 to
2    9 million.    Really, only a couple of them were under a
3    million.
4       Q       Did you know of or do you know of any builder,
5    certainly in your area, that has the experience of
6    building homes in that price range more than you?
7       A       Not that I'm aware of.
8       Q       So you started building in 2000 or around there
9    and --
10      A       I started building before that.   I started
11   building when I was still employed with the plastic
12   company.
13      Q       Okay.   And was that kind of a hobby or
14   moonlight or what was that?
15      A       Initially, I built a home for my family.   And
16   based upon the amount of time I had put in that
17   endeavor, my wife at the time and I decided to start
18   building some homes to make up additional income for our
19   family.
20      Q       In the early 2000s, did you start building in
21   the development called Vaquero?
22      A       Yes.
23      Q       And at some point in time, did you understand
24   that Mr. Hickok and I owned some land in Vaquero?
25      A       Yes.    There was a time I think between you that
                                                               15



1    you owned about 12 residential lots.
2       Q      And you knew Doug from me and from -- socially?
3       A      Yeah.
4       Q      So how did it -- you built the home we're here
5    about; is that right?
6       A      Yes.
7       Q      What entity did you use to build this home?
8       A      I believe it was under Castlegate Homes.
9       Q      Is that a name of a building entity that you
10   used regularly?
11      A      Yes.
12      Q      And so tell the jury a little bit about how it
13   came about that VSDH, the entity Doug and I owned this
14   lot in, and you came about building this home?
15      A      Well, I was doing quite a bit of building right
16   in that area at the time, and I suggested that there was
17   very hot.   It was a very desirable area.   And since you
18   had those lots that we build a couple of spec homes
19   wherein I would build them and you and Mr. Hickok would
20   put the lots in the deal and obtain the combination of
21   cash or financing.   But, ultimately -- well, I didn't
22   have to put any money in, and then we would split any
23   profit.
24      Q      And did you build two homes next door to each
25   other, the Gross homethat we're here aboutand the one
                                                              16



1    next door to that?
2       A      That's correct.   Yes.
3       Q      So when you went about building the Gross home,
4    briefly tell the jury what you did in order to make sure
5    that you were building a quality product that you were
6    going to be happy with?
7       A      I hired someone that I believed to be one of
8    the top architects in the metroplex, Richard Drummond
9    Davis.    Actually, on those two homes, what I did is -- I
10   didn't want to have to spend a couple of years designing
11   the home, which is how long that process tended to take.
12   And I had Mr. Davis suggest some plans or homes that he
13   had designed before that he was really pleased with the
14   results and that would work on these lots and ultimately
15   picked two houses.   And then we took those plans and
16   adapted them to fit, you know, on these two pieces of
17   property.
18      Q      Well, why did you think -- is Mr. Davis out of
19   Dallas?
20      A      Yes.
21      Q      Why did you think he was such a good architect?
22      A      When I built my first house, I researched
23   architectural firms for about two years, and my research
24   resulted in me having a very short list of three or four
25   top architects.   And the other main one was Larry
                                                                 17



1    Boerder. And at that point, I had had Richard Davis
2    design a couple of houses for clients, at least a
3    couple, maybe more, and the same for Mr. Boerder. In my
4    research into becoming a builder told me that having
5    strong architecture was a very, very important component
6    of building quality houses.
7       Q       And is that kind of a rule you've lived by?
8       A       Yes.
9       Q       The -- generally, what would you say is --
10   other than -- well, along with strong architecture,
11   what's kind of important to you in building a quality
12   product?
13      A       Well, the site that it's built on, the -- is
14   the quality of the lot or the land and the
15   specifications of the house, not just the design, but
16   the finish-out specifications and the mechanical
17   specifications that they're all detailed to result in an
18   extraordinarily high quality product and then the use of
19   the best labor possible, which for many years, I
20   employed a lot of the subcontractors myself.      My firm
21   employed as employees trim carpenters andtile
22   installers, masons and -- and painters.
23                     MR. SHAW: Okay.   Your Honor, may I have
24   the overhead, please?
25      Q       (By Mr. Shaw) All right.    Let's start with,
                                                                18



1    Mr. Kramer, is that a picture of the exterior, front
2    exterior of the home?     And these are from Gross Exhibit
3    116.
4       A       Yes.
5       Q       Okay.   And are you happy with the way that home
6    ended up looking?
7       A       Ended up looking when I finished building it?
8       Q       Yes, sir.
9       A       Yes.
10      Q       Okay. Another photo from 116, is that another
11   front picture?
12      A       Yes.
13      Q       The -- describe, please -- all these photos are
14   going to be from Exhibit 116.     Describe, please, what
15   this is.
16      A       That's the foyer, the -- I guess you could call
17   it the entry.      You see that the front door was
18   hand-carved. We built that -- my own employees built
19   that door by hand, and all the carvings were done by
20   hand.   The stair newel is, you know, not what you would
21   see in a typical home.     And then it has the --
22      Q       Is this the newel?
23      A       Yes, sorry.   And then paneling that you see on
24   the wall on the left side of -- yes -- the staircase is
25   all, you know, nicely detailed.     It has stained
                                                                 19



1    baseboards, which is the -- the piece of trim that you
2    could see at the bottom of each side of the entry door
3    there.    Right.   And it has a base cap.   It's a two-piece
4    trim.    It's just pretty typical of an entry in a home of
5    this size and price range that we would build; the
6    lighting, the sconces. I don't really recall if those
7    were antiques or if I bought them new, but I would have
8    taken a lot of time to select those.
9       Q      All right.   Thank you.   What is this, please?
10      A      That's the kitchen.
11      Q      Okay.    I may have a better picture of that.
12   And tell us about the quality and detail in there,
13   please.
14      A      Well, the cabinetry is what's called beaded
15   inset, which is kind of hard to see from these pictures.
16   But the cabinet doors have to fit exactly in the opening
17   and have a little beaded trim as opposed to an overlay
18   door.    Overlay doors, the cabinetdoor kinds of laps
19   over the opening. These cabinets in person look just a
20   lot nicer.   They're a lot harder to make.    They all have
21   Blum undermount drawer glides, which is a special drawer
22   glide so you don't see drawer glides on each side of the
23   drawer and the drawer closesby itself.
24                  The cabinets themselves, the crown molding
25   on the top is something I designed several years ago.
                                                             20



1    That's just different and a little more substantial than
2    the standard crowns that are sold.   Most of the -- the
3    appliances are pretty typical high-end appliances that
4    you're going to see in a house this range.    The tile and
5    the back splash is a heavy relief tile that I picked
6    out.   But overall it's just -- it's good quality. It's
7    got exceptionally good quality cabinets and just finish
8    elements, like the trim.
9       Q     All right.   What's that, please?
10      A     I'm not sure which area that is.    It looks like
11   a butler's pantry or bar.
12      Q     All right.   There, again, this is another
13   kitchen -- another view from the kitchen; is that right?
14      A     Yes.   You can't see it real well in the
15   picture, but the crown molding where the ceiling and the
16   wall intersect, if -- you can see it above the cabinets.
17   But that was a multi-piece crown that -- that we
18   designed for my own home a few years before.    And I
19   think it was three or four pieces of trim melded
20   together to just give a very distinctive look.
21      Q     How thick is it?   I mean, how --
22      A     Well, it encroaches on -- part of it's on the
23   ceiling; part of it's on the wall.   I'm not really sure.
24      Q     All right.
25      A     Maybe 10 or 12 inches.
                                                               21



1       Q     Okay.   What's that, please?   It says master
2    bath on the photo.
3       A     Right. Master bathroom, similar style of
4    cabinets. The trim is the -- similar but it's smaller
5    because the room really couldn't handle the same trim.
6    I think we removed a couple of pieces probably but used
7    essentially the same -- the same lookin there.     In this
8    picture, you can see something I didn't notice on the
9    other picture.   If you look at those doors that are to
10   the left of the shower, the trim that goes around it is
11   sitting on plinth block.     That's a piece of trim that we
12   use.   The casing, which is the trim around the door, is
13   sort of like the legs on each side.     But instead of just
14   coming down to the floor, they sit on these blocks, and
15   it helps the baseboard tie into it. It's just a detail
16   that you really have to see in person to appreciate.
17      Q     What's that?
18      A     That's a library.    Again, you'd see extensive
19   trim work, which is, I think, one of the many features
20   of the homes I built that -- it has the wood paneling
21   that's all stained. Then the ceiling is -- it has a
22   coffered ceiling
                    , and if --
23      Q     What did you say?
24      A     Coffered ceiling where there's -- it looks like
25   beams up above in the ceiling.
                                                               22



1       Q     Right.
2       A     And in between the beams, it has a dental mold,
3    which is a molding.   They call it dental because it's
4    sort of like teeth. It's notched, but -- and they sell
5    dental mold in different sizes, but none of them really
6    have much time style to them.   We designed a piece of
7    trim that's a -- that's used as a -- sometimes as a
8    chair rail, and we cut it with a chop saw into
9    individual little blocks.   So each of these little bumps
10   you see in the ceiling, rather than it be one big piece
11   of trim, each individual piece is nailed on.   It has to
12   be spaced out separately.   It just looks completely
13   different than just buying a stock piece of trim.
14      Q     For a lot of what you've done here, did you
15   find something you like and copy it, or how did this
16   come about?
17      A     A combination.   Some of these elements I
18   learned from either Larry Boerder or Richard Davis,
19   these architects.   Many of them I found old homes and
20   copied it.    I didn't really technically design any of
21   them.   I'm a really, really good copycat, though.
22      Q     So, overall, would you say this is -- pictures
23   the high quality that you wanted and built into that
24   home?
25      A     Yes.
                                                               23



1       Q      Okay.    Now, the -- are you aware that the home
2    has been altered?
3       A      Yes.
4                     MR. SHAW: Your Honor, may I approach?
5    And I don't know the exhibit number of the plans that
6    Mr. Aldous put into evidence.
7                     THE COURT: You may.    I believe that that
8    is Exhibit Number --
9                     MR. ALDOUS: 125, Your Honor.
10                    THE COURT: Okay.
11                    MR. SHAW.
12      Q      (By Mr. Shaw) Okay.    Mr. Kramer, you've not
13   seen these before, have you?
14      A      No, I have not.
15                    MR. ALDOUS: Your Honor, I object at this
16   point.   Counsel has not designated this witness in any
17   expert capacity to hand him a set of plans and to ask
18   his opinion.
19                    THE COURT: Okay.    Counsel, approach.
20                    (Sidebar conference held)
21                    THE COURT: You may proceed.
22                    MR. SHAW: Thank you.
23      Q      (By Mr. Shaw) Mr. Kramer, are you familiar with
24   that?    Who designed those plans?
25      A      It appears they were generated by Paragon
                                                                 24



1    Planning d/b/a Paragon Design Group.
2       Q      Are you familiar with that group?
3       A      Yes.
4       Q      Is that a group you would have used?
5                     MR. ALDOUS: Objection, Your Honor.   That
6    calls for opinion testimony, and he hasn't been
7    designated.
8                     THE COURT: Overruled.
9       A      I would not have used him.
10      Q      (By Mr. Shaw) Is that an architect group?
11      A      No.
12      Q      What is it?
13      A      In the state of Texas, you don't have to be a
14   licensed architect to design a home.     Anybody can design
15   a home.   This firm, I believe the gentleman that owns
16   it's name is Robert or Richard Leeper.    He does not have
17   an architectural degree or he's not an architect.     He
18   learned how to draw on some software and --
19                    MR. ALDOUS: Objection, Your Honor.   I'd
20   like to take --
21                    THE COURT: Sustained.
22      Q      (By Mr. Shaw) Does he have the quality of
23   experience and -- that you would use?
24                    MR. ALDOUS: Objection, Your Honor.   That
25   calls for a hearsay response.    I will take the witness
                                                              25



1    on voir dire to demonstrate that.
2                   THE COURT: All right.   Ladies and
3    gentlemen of the jury
                         , we're going to take a brief
4    recess.   We've got some matters to discuss outside of
5    your presence.   During this recess, you're under the
6    same instructions that you have been previously given.
7    You're not to discuss this case among yourselves or with
8    anyone else until such time as the case has either been
9    submitted to you for your deliberations or you have been
10   discharged as jurors.
11                  All rise.   The jury is excused.
12                  (Jury exits the courtroom)
13                  THE COURT: You may be seated.
14                  You may proceed, Mr. Aldous.
15                     VOIR DIRE EXAMINATION
16   BY MR. ALDOUS:
17         Q   Mr. Kramer, the fellow that you said owns
18   Paragon, how do you know what his training or experience
19   is?
20         A   I was involved in two projects that he was
21   involved in.
22         Q   Would it be true, sir, that it's only because
23   of what he told you or what you read about his
24   qualifications outside of court?
25         A   I'm sorry.   I didn't follow you.
                                                              26



1       Q     So, how do you know what his qualifications
2    are?   Did somebody tell you?
3       A     He told me that he was not an architect.
4       Q     All right.   And he told you that way back
5    during the time that you worked with him, right?
6       A     Yes.
7       Q     Is the only basis of your knowledge of what his
8    training and experience is related to your conversations
9    with that particular individual?
10      A     No.
11      Q     Did you also read about him on the website?
12      A     No.
13      Q     How else do you know about it?
14      A     Because every single architect that generates
15   plans would show their AIA designationthat they were an
16   architect and they would stamp the plan with an
17   architectural seal.
18      Q     Let me rephrase my question. I'm not asking
19   you about whether or not specifically he is known to you
20   to be an architect, but whether or not you have
21   knowledge of his training and experience without regard
22   to whether he's a licensed architect.     Is the source of
23   that information from the individual you spoke with?
24      A     I don't recall.
25      Q     Is it from something else you read?
                                                                27



1          A   No.
2          Q   Would it be fair to say that whatever knowledge
3    you have of this individual's training and experience
4    came from sources other than your personal observation?
5          A   Well, they come from my personal observation in
6    the two projects that I was involved in that he did work
7    on.
8          Q   Right.   But what I'm saying is during that --
9    during that time, you learned about it from someone.
10   You didn't watch him go to school?
11         A   Of course not.
12         Q   And you didn't grade his papers in school?
13         A   No.
14         Q   All you know about what his training is is what
15   he represented to you or what you believe to be true
16   based upon other information you got outside of this
17   courtroom?
18         A   Yes.
19                    MR. ALDOUS: Okay.   That's it, Your Honor.
20   I renew my objectionas to hearsay.      He's testifying
21   about the qualifications of somebody who's not here.
22                    THE COURT: Any response, Mr. Shaw?
23                    MR. SHAW: He's testifying --would -- and
24   would you have used him; if not, why?     He's testifying
25   because he -- Kramer believes this guy is not X Y, or Z.
                                                           28



1                  THE COURT: So he's testifying based upon
2    hearsay knowledge.
3                  MR. SHAW: What he believes only, not for
4    the truth of the matter, only what Kramer believes.
5                  THE COURT: His beliefs are based on the
6    information he acquired --
7                  MR. SHAW: Right.
8                  THE COURT: -- through hearsay --
9                  MR. SHAW: That's right.
10                 THE COURT: -- which is not subject to
11   cross-examination
                     .
12                 MR. SHAW: Hearsay's not --
13                 THE COURT: So you'll move on to another
14   topic area.
15                 MR. SHAW: All right.
16                 THE COURT: All rise.   You may bring the
17   jury back in.
18                 MR. ALDOUS: Your Honor, is my -- is the
19   objection sustained?
20                 THE COURT: Yes, the objection is
21   sustained.
22                 MR. ALDOUS: Thank you.
23                 (Jury enters the courtroom)
24                 THE COURT: You may be seated.
25                 You may proceed
                                 .
                                                               29



1                    MR. SHAW: Thank you.
2                    CONTINUED DIRECT EXAMINATION
3    BY MR. SHAW:
4       Q     Mr. Kramer, would those plans have been
5    acceptable to you?
6       A     No.
7       Q     The -- what are specifications?
8       A     Specifications are generally just as the name
9    would indicate.    They're details, by example, of the
10   specifications on a complete set of plans for a new home
11   would show what type of material to be used, what type
12   of framing material to use.     It would show what piece of
13   trim to use in every area.    It would show what the
14   flooring was.    It would show whether thedoor was a
15   hollow-core door, a solid door, or how many panels the
16   door had.
17                   It would show what type of electrical
18   wiring to use.    It would show what type of electrical
19   panel to use.    It would show what type of plumbing lines
20   to run, whether copper or plastic, and it would show the
21   size of the water meter, the size of the main water
22   line.   It would show what the paint colors would --
23      Q     Very, very detailed?
24      A     It would show -- the specs and plans are like a
25   road map.   You give the map to somebody, and they can
                                                               30



1    get to the location.    They can -- it tells them
2    everything they need to do to build a house.
3       Q    All right.     VSDH Exhibit 6, is this spreadsheet
4    -- would you consider this -- and let me show it to you
5    a little better.
6                 MR. ALDOUS:    Your Honor, I'm going to go
7    ahead and object at this time.
8                 THE COURT: Sustained.
9                 MR. ALDOUS: Thank you.
10      Q    (By Mr. Shaw) If you were given this document,
11   Mr. Kramer, would this be the road map, Exhibit 6, that
12   you could use to build that home?
13                MR. ALDOUS: Your Honor, same objection.
14                THE COURT: Sustained.
15      Q    (By Mr. Shaw) Would you have used Exhibit 6 --
16                MR. ALDOUS: Objection.
17                MR. SHAW: -- to build that home?
18                MR. ALDOUS: Objection, Your Honor.
19                THE COURT: Sustained.
20      Q    (By Mr. Shaw) Why are specifications important?
21      A    Well, without them, the general contractor
22   wouldn't know what they're supposed to build without
23   obtaining the specifications from the general contractor
24   for their portion of the work, a subcontractor wouldn't
25   know the scope of the work.   They wouldn't know what to
                                                                   31



1    do.       The trim supplier wouldn't know what type of trim
2    to send out.      The sheetrock contractor wouldn't know how
3    to finish the sheetrock, whether it was smooth or
4    textured. The sheetrook supplier wouldn'tknow whether
5    to send out half-inch board or five-eights board.         I
6    mean, it's -- it's the directions.        It's everything.
7          Q      Would you have built the plan that is before
8    you?       It's an additional casita and video room above it.
9    I think they call it a -- what do they call a video --
10   what do they call amovie room?
11                     MR. CHAIKEN: Media room.
12         Q      (By Mr. Shaw) Media room
                                         .     Would you have built
13   that plan, a media room on top and a guest room below
14   it?
15                     MR. ALDOUS: Objection, Your Honor, calls
16   for --
17                     THE COURT: Sustained.
18                     MR. SHAW.
19         Q      (By Mr. Shaw) If you were given that plan,
20   would you recommend the implementation -- would you have
21   followed it?
22                     MR. ALDOUS: Objection, Your Honor.
23                     THE COURT: Sustained.
24         Q      (By Mr. Shaw) Let me ask you this, Mr. Kramer.
25   These are from Exhibit 116 of Gross.        This is the casita
                                                                  32



1    room that Mr. Gross built that we're talking about here.
2    Do you see that?
3       A       Yes.
4       Q       Okay.    Do you see a like, kind room to what you
5    built?
6                      MR. ALDOUS: Objection, Your Honor.
7                      THE COURT: Sustained.
8       Q       (By Mr. Shaw) Does this photograph have the
9    molding that you built?
10                     MR. ALDOUS: Objection, Your Honor.
11                     THE COURT: Overruled.
12      A       I can't tell from the picture.   It looks
13   similar to some parts of the house, obviously not the
14   parts of the house we just looked at.
15      Q       (By Mr. Shaw) How about the baseboards?
16      A       I can't really tell from the picture.
17      Q       Let's look at the media room.    Does that look
18   similar?
19      A       Well, it's just plain walls.    I mean, it looks
20   identical to the finish-out of the garage probably.
21      Q       This room?
22      A       Except for the wood floors.
23      Q       Okay.    How about this room?
24      A       Same thing.   I mean, it's -- it's plain walls
25   with -- I can't tell if the baseboards are the same.     It
                                                                 33



1    could be.    It's just -- it's just more simplistic.
2       Q       Would that be something that you would say
3    matched your quality?
4                      MR. ALDOUS: Objection, Your Honor.
5                      THE COURT: Sustained.
6       Q       (By Mr. Shaw) The back of the home, when you
7    completed your work, Mr. Kramer, where did the
8    construction stop?
9       A       I'm sorry.   Could you repeat that? I'm not
10   sure if I understand the question.
11      Q       When you completed your work on the home before
12   this addition, where did your work stop on this back, if
13   you can tell at all?
14      A       Are you asking me where the original house
15   stopped?
16      Q       Yes.    Yes, sir.
17      A       Okay.    If you -- if you point up to the left
18   side of the pool, right there. Now go up from there, up
19   higher to the left.      I can't rememberexactly.   It's
20   been a while.      I think that probably was the laundry
21   room.   So that would have been -- I think the laundry
22   room was the very back of the house, somewhere right
23   around there.      The part to the left of there where the
24   additional porch is, that's all added for sure, and the
25   dormers above it I believe are added.
                                                                  34



1       Q       What is important in a backyard?
2       A       My experience in homes, 2 million and above
3    certainly is the size of the property.       People almost
4    universally want at least an acre lot, if not two.       But
5    one acre is the real common desire and having -- having
6    a sizable amount of property.     This house was fairly
7    tight on the lot to start with because it wasn't -- I
8    believe it may be three-quarters of an acre. It was a
9    pretty good sized house.     The addition, in my view --
10                     MR. ALDOUS: Objection, Your Honor.
11                     THE COURT: Sustained.
12      Q       (By Mr. Shaw) Does the addition take up land?
13      A       Yes.
14      Q       And is that something that you think is a
15   benefit?
16                     MR. ALDOUS: Objection, Your Honor.
17                     THE COURT: Sustained.
18      Q       (By Mr. Shaw) In 2009, this home -- the Grosses
19   sold this home, okay, August 2009.        Did you sell any
20   similar property in 2009?
21      A       In 2009, I sold a spec house that I had built.
22   It was not in Vaquero.     It was in a much lesser
23   neighborhood in Colleyville. It wasn't a neighborhood
24   that had a golf course and any amenities that I believe
25   is very close in size to the subject house after the
                                                                 35



1    add-on, within a couple hundred square feet.      I sold
2    that in December.
3                    MR. ALDOUS: Let me just object.    I
4    believe he's gone beyond the question.
5                    THE COURT: Sustained.
6                    MR. SHAW: All right.
7       Q     (By Mr. Shaw) Did you sell a similar home?
8       A     Yes.
9       Q     And how much?
10      A     $2,850,000.
11      Q     In the same year?
12      A     December 2009.
13      Q     A lesser community?
14      A     Much lesser.
15      Q     The -- do you think that the work by Mr. Gross
16   added value or decreased value to the home we're here
17   about?
18                   MR. ALDOUS: Objection, Your Honor.
19                   THE COURT: Sustained.
20                   MR. SHAW: I'll pass the witness.    Thank
21   you, sir.
22                   THE WITNESS: Yes.
23                   THE COURT: Mr. Aldous?
24                   MR. ALDOUS: Thank you.
25                        CROSS-EXAMINATION
                                                              36



1    BY MR. ALDOUS:
2       Q    Mr. Kramer, my name is Steve Aldous and we just
3    -- we haven't met before today, but I'm here
4    representing the Grosses.   All right?
5       A    I understand.
6       Q    Let me just ask you.    Have you built spec homes
7    before that you were very proud of?
8       A    Sure.
9       Q    And in terms of some of those spec homes, some
10   sell quicker than others.   Would you agree with that?
11      A    Yes.
12      Q    Would you agree that, although you were proud
13   of the way you built this home, that it did not sell as
14   quickly as you would have hoped?
15      A    It was too long ago for me to really say what
16   my expectation would be, but I can tell you that in
17   building spec homes, I have never had an expectation
18   they were going to sell real fast because I price them
19   at a price level that wasn't necessarily designed for it
20   to sell real fast.    But certainly I would agree that it
21   didn't sell quickly.
22      Q    And that could be for any number of reasons;
23   just maybe you didn't find the right buyer during that
24   period of time, right?
25      A    Absolutely.
                                                              37



1       Q     Sometimes economic factors play into it.    Would
2    you agree with that?
3       A     I don't think in this case it applies, but it
4    could.
5       Q     Well, for instance, do you still do business
6    under Kramer Construction, LLC.?
7       A     The entity is -- exists, but I do not do
8    business.   I work for Shawco.
9       Q     So did you used to build houses under Kramer
10   Construction, LLC?
11      A     Yes.
12      Q     And now you work for Mr. Shaw?
13      A     Yes,
14      Q     So why was the change from Kramer Construction,
15   LLC, to working for Mr. Shaw?
16      A     I lost about $9 million in investment money.
17      Q     Was some of that loss related to homes that --
18   or neighborhoods that you were planning?
19      A     What did you say I was -- I'm sorry
                                               .
20      Q     Let me rephrase that.
21      A     It's okay.
22      Q     That was a terrible question.    Were some of
23   your losses related to investments in real estate?
24      A     Yes.
25      Q     And just for whatever reason, that made it to
                                                                 38



1    where you could no longer do business as Kramer
2    Construction?
3       A       No.   I could have.   I chose not to.
4       Q       As a result of your losses, were you -- did you
5    need someone to help in terms of investing in your
6    livelihood?
7       A       I wouldn't say that because my -- the entity
8    was still operating, and it could have continued to
9    operate.    And it operated right up until the time I went
10   to work for Mr. Shaw. I didn't want to run a business
11   anymore.    I had lost a lot of money.    I feel I'm a lot
12   better at building homes than running the financial
13   aspects of business.
14      Q       How long have you known Mr. Shaw?
15      A       Twenty-five years.
16      Q       Are you grateful for him for giving you the job
17   with Shawco?
18      A       Sure.
19                    MR. ALDOUS: All right.   Thank you, sir.
20   I'll pass the witness.
21                    THE COURT: Mr. Shaw?
22                    MR. CHAIKEN: Your Honor, I have no
23   questions.
24                    MR. SHAW: I have nothing further.
25                    THE COURT: The witness is excused.
                                                              39



1                  THE WITNESS: Thank you.
2                  THE COURT: You may step down.
3                  Any further witnesses from VSDH?
4                  MR. SHAW: VSDH rests, Your Honor.
5                  THE COURT: All right.   Mr. Chaiken?
6                  MR. CHAIKEN: Your Honor, Mr. Hickok
7    rests.
8                  THE COURT: All right.   Mr. Aldous, does
9    plaintiff close?
10                 MR. ALDOUS: Close.
11                 THE COURT: Mr. Shaw?
12                 MR. SHAW: Close.
13                 MR. CHAIKEN: We close as well, Your
14   Honor.
15                 THE COURT: All right.   Ladies and
16   gentlemen of the jury
                         , what we're going to do at this
17   time is take a luncheon recess because it's lunchtime.
18   It's going to be a little bit longer recess because we
19   will be preparing the charge of the Court in this
20   matter.   After the charge is prepared, the charge will
21   be read to you and closing arguments will begin. So the
22   jury should return at 2:30.
23                 All rise.   During this luncheon recess,
24   the jury is under the same instructionsthat you've been
25   previously given.   You're not to discuss this case among
                                                             40



1    yourselves or with anyone else until such time as the
2    case has been submitted to you for your deliberations or
3    you have been discharged as jurors.   You're free to go.
4                 (Jury exits the courtroom)
5                 MR. ALDOUS: Your Honor, I will have a
6    motion to present
                     .
7                 THE COURT: Just wait until the jury is
8    gone.
9                 MR. ALDOUS: I wanted to make sure you
10   knew.
11                THE COURT: Do we want to let the
12   alternate go after the arguments?
13                MR. SHAW: Fine with me.
14                THE COURT: Mr. Chaiken?
15                MR. CHAIKEN: I have no objection.
16                THE COURT: Mr. Aldous?
17                MR. ALDOUS: That would be fine, Your
18   Honor.
19                THE COURT: Okay.   You said that you
20   wanted to make a motion.
21                MR. ALDOUS: I did, Your Honor
                                              . I mean, I
22   do.
23                MR. CHAIKEN: Your Honor, as do I after
24   he's --
25                MR. SHAW: As do I.
                                                             41



1                  MR. ALDOUS: Your Honor, I'd like to make
2    a motion for a directed verdict on three issues.    First
3    is the motion for directed verdict on the guaranty of
4    one of the elements of the guaranty.     To prove the
5    guaranty, you have to have showed the existence of the
6    guaranty, the terms of the underlying contract,
7    conditions giving rise to liability, and the failure of
8    the guarantor to perform.
9                  I'm moving with respect to the existence
10   of a guaranty.   The evidence is conclusive that the
11   guaranty language in the contract, which is Paragraph --
12   is Paragraph 4 of the Addendum A, which is an Exhibit 3
13   of the Grosses, is clear and unambiguous in that it
14   calls for a personal guaranty by Doug Hickok under the
15   -- of the seller's obligations under the buyback.
16                 The -- my understanding is the
17   disagreement, to the extent that it exists, is whether
18   or not the signature of Mr. Hickok, either in the manner
19   in which he signed it for VSDH or in his initial,
20   somehow absolves him from the plain language of the
21   contract.   And the case law is pretty clear, Your Honor,
22   and -- with respect to that.   First of all, in Dann
23   versus Team Bank from the Fifth Court of Appeals in the
24   top right-hand corner of the copy I gave you is Page 3
25   of 5.   This case involves a guaranty.
                                                                42



1                   The Court said on the right-hand side just
2    above Headnote 2, "The thrust of Dann's appeal is that
3    she is not liable in her individual capacity under the
4    guaranty.   We disagree.   Under normal circumstances, a
5    written collateral undertaking given to secure a
6    corporate debt will be rendered meaninglessif the
7    primary debtor is found to be the sole party liable
8    thereunder."
9                   THE COURT: Where are you reading that?
10                  MR. ALDOUS: Oh, I'm sorry.    Headnote3,
11   right after where it says Headnote 3.   Then continuing,
12   "To circumvent this result, the corporate designations
13   appearing after signatures on documents of this type are
14   considered to be only descriptio personae." That'd be
15   Latin.   "Descriptio personaeis the use of a word or
16   phrase merely to identify or point out the person
17   intended and not as an intimation that thelanguage in
18   connection with which it occurs is to apply to him only
19   in the technical character which might appear to be
20   indicated by the word."
21                  And then the Court goes on to further
22   explain that to treat, you know, the guarantor as -- I
23   mean, the actual signer as the guarantor-- the borrower
24   as the guarantor defeats the purpose of the guaranty.
25   And if you turn to Page 4 of 5, the last sentence of the
                                                              43



1    first full -- or the first paragraph, it says, "We
2    conclude, therefore, that Dann signed the guaranty in
3    her individual capacity and that the designation of her
4    corporate capacity was merely descriptio personae.       In
5    other words, the addition of the words,
                                           'president,
6    Cetcon Corporation,'to Dann's signature was merely to
7    identify Dann and was not intended to apply in a
8    technical character."
9                  This case is also supported by another
10   Dallas Court of Appeals opinion, Long versus Motheral
                                                         .
11   And turning to Page 6 of 7, the first full paragraph
12   starts, "Long contends there was no meeting of the minds
13   because he never signed the application in his
14   individual capacity.    He stated in his affidavit, 'I
15   never intended to personally, individually, guarantee
16   any debts of any corporation, including Envy
17   Publications.'"
18                 And then it goes on to say, "However, the
19   law presumes a party signing a contract understands and
20   agrees to the contents of the contract."   Now it goes on
21   to the next paragraph that says, "Long signed the
22   two-page document twice, one indicating that his title
23   was President & CEO, and the other without an indication
24   of a title.   The second, untitled signaturewas after
25   the personal guarantee paragraph, which includes
                                                                 44



1    statements that I personally guarantee all indebtedness
2    hereunder, and I will withinfive days from the date,"
3    et cetera, et cetera.
4                  As the Court will recall, the guaranty in
5    this particular case has Mr. Hickok's admitted initials
6    immediately below the guaranty paragraph.    The next
7    paragraph over on the other side says, "Here, the
8    language of the personal guaranty paragraph creates a
9    personal obligation in addition to the application for
10   credit on behalf of the corporation.    Long signed the
11   credit application and guaranty twice, once indicating
12   his title and once without.     Even if title had signed"
13   -- by the way, I think this is like a misprint -- "had
14   signed the guaranty indicating his corporate office,
15   that would not changehis individual liability on the
16   guaranty.   The guaranty would be meaningless" -- and I
17   think that should say "without" -- the
                                          corporation was
18   purporting to guaranty its own open account."
19                 And it goes on.    It cites to the Dann case
20   that I just provided to Your Honor.    And then it says,
21   "A corporate designation in this case would be only
22   descriptive of his position; it would not change the
23   capacity in which he signed."     And this is a 2012 case,
24   and there is -- nopetition was filed.
25                 In fact, Your Honor, all cases that I was
                                                               45



1    able to find recite the same thing.     If the contract
2    specifically designates that it's a personal guaranty
3    and is clear and unambiguous, a signature in any
4    capacity of the individual changed in the guaranty will
5    be sufficient to bind him because the description is
6    considered -- that Latin phrase that I threw out there
7    that I can't rememberwhat it says.
8                    So, that's the first issue that I am
9    seeking a resolution.    And the reason being is because,
10   as the Court is aware, they've sought -- put on
11   evidence, you know, that he didn't intend to be bound
12   and so forth.    And my contention, based upon these
13   cases, is that matter is a matter of law for Your Honor.
14                   THE COURT: Response, Mr. Shaw?   Oh, let's
15   start with -- let me ask.     Is this a directed verdict as
16   to VSDH or as to Hickok or as to both?
17                   MR. ALDOUS: This is only with respect to
18   the guaranty signed by Mr. Hickok.
19                   THE COURT: All right.   So Mr. Chaiken,
20   you may respond.
21                   MR. CHAIKEN: May I have one moment just
22   to look at this case?    I was looking at the first case,
23   and I want to just look at the second case real quickly.
24                   MR. ALDOUS:   The Dann versus Team Bank
25   case is reported at 788 S
                             .W.2d 182 Tex. App Dallas 1990.
                                                              46



1    And I believe it's writ review -- no writ
                                            . And then the
2    other case that I brought is Long versus Motheral,
3    M-o-t-h-e-r-a-l Printing Co.      And it is cited at 2012
4    Tex. App. Lexis 5736.      And it's Dallas Court of Appeals
5    2012, no petition authored by Justice Moseley.
6                   MR. CHAIKEN: Your Honor, we oppose the
7    motion for directed verdict, andthere are a number of
8    grounds for it.    Number 1,I would note that the Long
9    versus Motheral Printing case is factually
10   distinguishable andlegally distinguishable on several
11   points.   One, if the Court looks at Page 6 of 7, the
12   description of the facts in that case are, first, that
13   this was not a guaranty of a real estate related
14   contract.
15                  And, second, the individual Long signed
16   the document in question once indicating that his title
17   was president and CEO and the other without indicating a
18   title.    He actually signed his name, the second untitled
19   signature. The second untitled signature,meaning not
20   indicating a representative capacity, was after the
21   personal guaranty paragraph, which includes statements
22   that I personally guaranty all debts, et cetera. Long
23   did not indicate this signature, excuse me, was in any
24   representative capacity.
25                  In this case, we don't have a factually
                                                              47



1    similar situation.   There is no signature by Mr. Hickok
2    that doesn't have his designated representative
3    capacity.   And so for two reasons this case is not
4    controlling of the facts and circumstances of this one.
5    Number one is because of that factual distinction,and
6    the other is there's no discussion of the implications
7    of the statute of frauds, which is Texas Business &
8    Commerce Code Section 26.01.
9                  Similarly, the other opinion offered by
10   Mr. Aldous, the Dann versus Team Bank case, is likewise
11   distinguishable
                   .   The -- in that case, you didn't have
12   any discussion of Business & Commerce Code Section 26.01
13   that I could find.   And,furthermore, in that case, it
14   appears that Dann, the purported guarantor, was also the
15   individual obligor. So there's a question as to whether
16   that individual intended to be liable for the debt in
17   question.
18                 The law in Texas has always been quite
19   clear, and I have yet to find a single case -- I'm
20   representing to the Court thatI've looked carefully --
21   where you had the operative facts being a guaranty of
22   performance of a contract of a real estate where all you
23   had was the signature of a purported guarantor in a
24   specifically representative capacity. In this case,
25   Mr. Hickok, the evidence is undisputed he signed a
                                                              48



1    document.   His signature is in a representative
2    capacity.   All of the evidence, all of the evidence
3    likewise is that his initials were in a representative
4    capacity on behalf of the seller.
5                  Under Section 26.01 of the Business &
6    Commerce Code, a promise or an agreement not covered by
7    the statute is not enforceable unless the promise or
8    agreement is in writing and signed by the person, not
9    somebody in a representative capacity, but the person to
10   be charged with the promiseor agreement or by someone
11   lawfully authorized to sign for him.   There's no
12   evidence that a partnership can sign an undertaking for
13   an individual partner. The reverse could be true, but
14   not that.
15                 And under Subsection (b) of 26.01, the
16   requirement that there be a writing and that it be
17   signed by the person to be charged with the promise or
18   the agreement, it includes a promise by one person to
19   answer for the default of another person.   As a matter
20   of statutory law, statutory law, in order for there to
21   be a guaranty agreement or any obligation on the part of
22   Mr. Hickok personally under the new home contract, which
23   is where the purported guaranty language exists
                                                   , because
24   he's being charged with the authority to a guaranty in
25   particular, he would have to personally sign in a
                                                                 49



1    non-representative capacity the writing in question
2    indicating his intent personally to be bound.
3                  In the absence of that personal signature,
4    there is no personal signature on the document.   He
5    cannot be held liable as a matter of law.    And he would
6    actually cross-move on directed verdicton that issue,
7    as a matter of law, that he is not a party to the new
8    home contract and he is not -- cannot be held to bea
9    guarantor.   Nor can the Court find as a matter of law
10   that there is a guaranty agreement or in particular an
11   enforceable guaranty agreement.
12                 THE COURT: Briefly, Mr. Aldous?
13                 MR. ALDOUS: Yes, Your Honor.    I'm going
14   to hand the Court a case from the Houston Court of
15   Appeals, called 84 Lumber Company versus Powers, which
16   directly does away with Mr. Chaiken's statute of frauds
17   case or claim.   This, again, was a guaranty issue.    If
18   you'll turn to Page 4 of 7 under the paragraph marked
19   Number 3, "Powers argues that the credit application was
20   signed in a dual capacity and is, thus, ambiguous."    The
21   Court, after reviewing the law and saying that the
22   construction of an unambiguous contract is a question of
23   law for the Court, it goes down to state that -- on the
24   next paragraph -- I mean, the next column over, last
25   sentence, "The instrument standing alone will usually be
                                                               50



1    deemed to fully express the intention of the parties
2    because it is the objective, not subjective, intent that
3    controls."
4                 "The El Paso Court of Appealswas
5    presented similar contract language in the case of
6    Austin Hardwoods.   There, as here, immediately above the
7    signature line of thecredit application was recited."
8    And it has the guaranty language.   "The corporate
9    officer signed the application in his capacity as
10   vice-president.   Thereafter, the corporation went into
11   bankruptcy and the creditor company made demand on the
12   officer."
13                If you go down to the following paragraph,
14   "In light of the signature under the personal guaranty
15   language, the El Paso Court of Appeals failed to see how
16   the above-cited guaranty clause rendered the agreement
17   susceptible to more than one meaning.   The language of
18   the agreement was not unclear or indefinite. It clearly
19   evidences application for credit by a corporation
20   guaranteed by the individual signing the application."
21                Now, if you go down to the next paragraph
22   with the sentencethat starts, "However, as the guaranty
23   paragraph stipulates, in addition to the creation of a
24   corporate liability, the signing individual further
25   covenants to be individually liable for the debt, again
                                                                51



1    the very essence of the guaranty agreement."
2                    If you turn to the next page, which is
3    Page 5 of 7, there is a heading referred to as statute
4    of frauds.   "David Powers argues further that the
5    guaranty is deficient because it does not meet all the
6    requirements of the statute of frauds."    Similar to what
7    Mr. Chaiken just told the Court.    The law under the
8    paragraph, it says, "A guaranty agreement is subject to
9    the statute of frauds."
10                   And then if you go down to where it says
11   headnote 5, "That a signature is followed by a corporate
12   designation does not necessarily serve to relieve the
13   signatory of individual liability. A signature followed
14   by corporate office will result in personal liability
15   where the individual is clearly designated within the
16   instrument as personal surety for the principal."
17                   Your Honor, this directly deals with his
18   statutory case claim.    And the case law is clear from
19   both the Dallas Court of Appeals and Houston Court of
20   Appeals that if the contract language says, "I, Doug
21   Hickok, guaranty this," and he signed it in any
22   capacity, that defense of, "I didn't mean to.    I didn't
23   intend to," is gone.
24                   So the next portion of my motion is
25   related to --
                                                               52



1                   MR. CHAIKEN: Do I get to respond to that?
2                   THE COURT: He's not finished yet.
3                   MR. ALDOUS: That's all I have on that
4    element.
5                   THE COURT: Okay.   Then you may respond.
6                   MR. CHAIKEN:   Judge
                                       , we -- first of all, I
7    would note that the Houston Court of Appealsis not
8    controlling.   The Dallas Court of Appeals has spoken on
9    a related issue.   I mean, under the Dallas Court of
10   Appeals, it doesn't apply because the facts and
11   circumstances in the case per the Dallas Court of
12   Appeals.
13                  THE COURT: Which case are you talking
14   about?
15                  MR. CHAIKEN: The two that he cited
16   previously, authority, distinguishable and --
17   Mr. Aldous turns to the 84 Lumber case out of the
18   Houston Court of Appeals
                            , which is not controlling.
19   But, more importantly, this case does not involve, okay
20   -- at least that I can see -- the secondary
21   consideration that I mentioned earlier, which is that --
22   that there was a contract touching real estate.    This
23   case involves a general credit application.   It looks
24   like it's a negotiable-instrument-type situation instead
25   of an obligation to guaranty performance for a real
                                                              53



1    estate related obligation, a purchase obligation.
2                   The statute of frauds goes on in addition
3    to identify that a person must personally sign an
4    agreement, okay, if he is going to -- when it involves a
5    promise to answer for debt or default or miscarriage of
6    another person.   But also a contract of the sale of real
7    estate must likewise be in writing personally signed by
8    the person in charge of any obligations in that
9    contract.   And that is Subsection (b)(4) of the Statute
10   of Frauds, which is Section 26.01 of the Business &
11   Commerce Code.    And, furthermore, an agreement which is
12   not to be performed within one year from the date of
13   making the agreement -- and we know that this purported
14   guaranty obligation -- or I should say the buyback
15   obligation that it supposedly guarantees was not
16   performable within a year.
17                  Also, it has to be signed personally by
18   the person in a non-representative capacity, the person
19   himself.    There is no case which deals with Subsection
20   2, I'm sorry, (b)(2), (b)(4), (b)(6), not a single one.
21   And because it is indisputable and undisputed that the
22   new home contract was an agreement -- I'm sorry -- a
23   contract for the sale of real estate and because it is
24   undisputed and indisputable that it was an agreement
25   which was not to be performed within one year from the
                                                                54



1    date of making the agreement.    Okay.
2            And, thirdly, because it purports to be a
3    promise by one person to answer to the default of
4    another person, it must be signed by the person to be
5    charged with the promise or agreement or by someone
6    lawfully authorized to sign for him.     And these cases
7    that we've talked about are obviously very factually
8    dependant. They deal with the nature of the debt or the
9    alleged debt in question.   And none of them deal with a
10   real estate contract, an agreement to be performed --
11   not to be performed in one year.
12                  MR. ALDOUS: Just for Cathye's purpose,
13   Your Honor, the 84 Lumber case is 393 S.W.3d 299 Tex.
14   App. Houston, First District, 2012, no petition.
15                  THE COURT: I'm going to grant the
16   directed verdict on the existence of a guaranty
                                                   .
17                  MR. ALDOUS: Thank you, Your Honor.    The
18   next issue is the failure to mitigate defense that I
19   believe is raised both by VSDH and Mr. Hickok.     I don't
20   believe that there's any evidence from which the Court
21   could submit that to the jury.   It is just an
22   instruction.   But it's thedefendant's burden, that is,
23   who's acting as the VSDH and Hickok's burden to prove
24   failure to mitigate as its affirmative defense.     In
25   order to do that, the defendant must offer evidence
                                                                55



1    showing not just that the plaintiff's lack of care -- in
2    other words, that the plaintiff lacked care and failing
3    to avoid harm, but also the amount by which the damages
4    were increased by such failure to mitigate.
5                    And that comes from a Tyler case, and it's
6    in the PJC under 115.8.    As it stands right now, there's
7    just no evidence that the -- it's on Page 298.     It's
8    under, "defendant's burden of proof
                                       ."      The -- my
9    argument really relates to two things; one, they have
10   offered no evidence that it was unreasonable in this
11   situation to offer the --
12                   THE COURT: I'm sorry. What was the
13   number again?
14                   MR. ALDOUS: The number of --
15                   THE COURT: PJC.
16                   MR. ALDOUS: 115.8.   Are you in the 2012
17   book?
18                   THE COURT: No.    I'm in the 2014 book.
19                   MR. ALDOUS: Well, there you go.   I didn't
20   know there was a '14    out.
21                   THE COURT: You may continue.
22                   MR. ALDOUS: There is just -- there simply
23   is no evidence that the Grosses acted unreasonably with
24   respect to the sale or how much that -- even if there
25   was evidence, how much that ended up being part of the
                                                               56



1    500 and something thousand dollar
                                     s that we've pled.     And
2    I just don't think there's any evidence of it.   And what
3    I -- by putting the instruction in, although it appears
4    to be harmless, it allows the defense to argue something
5    for which they have no evidence.   They'd say, you know,
6    something to the effect of, well, they bought it two
7    years before for this amount and they sold it for this
8    amount, and there's no way it should have been less and
9    that sort of thing.
10                  So, Your Honor, I move for a directed
11   verdict on that particular defense.
12                  THE COURT: Mr. Shaw?
13                  MR. SHAW: Evidence that the Grosses
14   failed to mitigate is from the Grosses' own testimony
15   that the Grosses voluntarily decided to sell the home.
16   The Grosses testified nobody had a gun to their head,
17   that it was all a voluntary decision.   Kramer testified
18   that a similar house in a lesser neighborhood sold for
19   2.85 million in the immediatetimeframe.   So I think
20   that those two things require the submission of failure
21   to mitigate.   The -- further, the lack of the Grosses to
22   obtain the approval of the plans and specifications is
23   an element of failure to mitigate.
24                  THE COURT: Let me make sure I understand
25   you.   The house sold for how much originally before --
                                                                57



1    before the additions?
2                    MR. SHAW: 2.6 something.
3                    THE COURT: Okay. And after the
4    additions, it sold for?
5                    MR. SHAW: 2.415.
6                    THE COURT: You may continue.
7                    MR. SHAW: That was what I had on the
8    mitigation, Judge.
9                    THE COURT: Mr. Chaiken?
10                   MR. CHAIKEN: Yes.   Thank you. I think
11   there's a -- there's clearly more than a scintilla of
12   evidence proving that the actions of the Grosses, in
13   whole or in part, in selling the property were
14   unreasonable, which relates to some or all of their
15   claimed injuries or damages.    For example, the evidence
16   was that they voluntarily sold the property prior to the
17   buyback date.    That evidence came in several forms.
18   One, it was testified to by Mr. and Mrs. Gross.     They
19   tried to argue they were forced, but they also admitted
20   that they unilaterally made the decision to do so.
21                   Secondly, they admitted that they
22   voluntarily chose to sell the property through a
23   realtor.   They weren't required to do so.     There was
24   nothing that required them orcompelled them to do so.
25   And that, of course, gave rise to approximately $159,000
                                                              58



1    worth of damages claim that could have been avoided
2    without the use of a realtor.   Ms. Taylor, the realtor,
3    testified --
4                   THE COURT: So you're saying they could
5    have sold it themselves and saved the real state
6    commission; is that --
7                   MR. CHAIKEN: Certainly, it could have
8    saved the real estate commission. Sure.   And Ms. Taylor
9    testified that she actually tried to get Mr. and
10   Mrs. Gross more money, but they made the unilateral
11   decision to sell the property for less.   In fact, she
12   said that she had -- she had recently sold another
13   property in -- that she considered comparable, I guess,
14   that was a different size but sold in proximity to this
15   sale at a higher price per foot, but that the Grosses
16   were desperate to sell the property.   They wanted a cash
17   deal, and they made the unilateral decision to sell it
18   for less than what it might have otherwise brought.
19                  And there's also evidence that at the time
20   that they chose voluntarily to sell the property, they
21   -- you know, prior to the buyback date, they -- they had
22   at one time proposed the possibility of sellingit to
23   VSDH at a discount.   But when they actually got an offer
24   and were marketing the property, they did not offer the
25   opportunity to VSDH or to Mr. Hickok or to Mr. Shawto
                                                              59



1    purchase the property for the price that had been
2    proposed by the ultimate buyer, Ms. Browning.
3                   And, of course, had they done so, there
4    might not have been a real estate commission attached to
5    that as well or the closing costs that were incurred.
6    And finally you'll recall that the Grosses' position was
7    that they sold the property because they felt some
8    compulsion to do so.   The -- and that it related to this
9    transaction.   But the realtor testified, Ms. Taylor,
10   that she had no idea, okay, that their need -- there was
11   a need for them to sell.   They were anxious to sell the
12   property in a hurry.   They -- they set the price on
13   their own.   They made no mention whatsoever with regard
14   to the -- to anything having to do with this situation,
15   meaning the reason for the sale.
16                  And when asked what the reason was,
17   Mr. Aldous rose, objected, said it wasn't relevant what
18   the reason was.   The Court sustained the objection and
19   so all the jury was left to hear is that there was a
20   need, and it didn't relate to this issue.   And the
21   formation of their argument with regard to why they sold
22   is it that it did relate to this issue. So their
23   actions at the time were -- at least there's evidence
24   that they did not constitute efforts to be reasonable in
25   the mitigation of their damages.
                                                              60



1                  THE COURT: So you're alleging that the
2    property was not sold for fair market value.
3                  MR. CHAIKEN: Well, that's another issue,
4    which is there was no evidence as to what the fair
5    market value --
6                  THE COURT: That's a yes-or-no question.
7                  MR. CHAIKEN: I am alleging that as well.
8                  THE COURT: Okay.   To get to fair market
9    value, you have to look at what a reasonable buyer -- I
10   mean a reasonable seller would pay a reasonable buyer in
11   a situation where neither is underany compunction to
12   sell, correct?    And as far as thereal estate agent was
13   concerned, there was no compunction to sell.
14                 MR. CHAIKEN: No.   The real estate agent
15   actually testified that there was an undisclosed need to
16   sell the property.   And, furthermore, so did the
17   Grosses.   The Grosses have testified that they were
18   under a compulsion to sell the property by virtue of the
19   facts and circumstances ofthis case.    Moreover, fair
20   market value and evidence of fair market value was not
21   what the realtor testified to.   She gave no testimony
22   with respect to fair market value.   In fact, she could
23   not give testimony on fair marketvalue and only an
24   expert can.   Nobody -- there's noevidence of fair
25   market value in the record.
                                                              61



1                  THE COURT: Okay.    If we have no evidence
2    of fair market value, then how do we have evidence of
3    failure to mitigate?
4                  MR. CHAIKEN: That is -- that is the
5    evidence of failure to mitigate, failing to sell the
6    property for its fair market value, okay, is evidence of
7    a failure to act reasonably to mitigate damages.
8                  THE COURT: But we'd have to know what the
9    fair market value was, correct?
10                 MR. CHAIKEN: We would have to know what
11   it was --
12                 THE COURT: And we don't.
13                 MR. CHAIKEN: We don't know whatit is.
14                 THE COURT: Okay.    I'm going to grant
15   directed verdict on the failure to mitigate.
16                 MR. ALDOUS: The last item that I have on
17   my list, Your Honor, is the lack of consideration
18   allegation on behalf of Mr. Hickok.   The allegation, as
19   I understand it, is that there was no consideration that
20   flowed to Mr. Hickok from signing the guaranty agreement
21   because the home was sold by the company as opposed to
22   him.   The Long versus Motheral case that I previously
23   gave the Court and counsel deals with this also on Page
24   7 of 7.
25                 MR. CHAIKEN: I can make this easy for
                                                              62



1    you.   I'm not asking for submission on failure
                                                  of
2    consideration or lack of consideration.
3                   MR. ALDOUS: With that understanding, if
4    he's withdrawing that as a defense being asserted in
5    this case, then I will end my motion by saying thanks.
6                   THE COURT: Are you withdrawing it,
7    Mr. Chaiken?
8                   MR. CHAIKEN: Yes.    There is no -- no
9    basis on the consideration issue.
10                  THE COURT: Okay.
11                  MR. SHAW: Judge, I want to move for
12   directed verdict as well.
13                  THE COURT: Well, let me ask you. I have
14   not forgotten.
15                  MR. SHAW:   All right.   I'm sorry.
16                  THE COURT: That's everything you have,
17   Mr. Aldous?
18                  MR. ALDOUS: That is, Your Honor.
19                  THE COURT: All right.    Now, Mr. Shaw.
20                  MR. SHAW: Thank you, Your Honor.
21                  THE COURT: You want to move for directed
22   verdict.   Hang on.
23                  MR. SHAW: I do.
24                  THE COURT: All right.
25                  MR. SHAW: I re-urge my motion for
                                                                63



1    directed verdict on two causes; one,
                                        the declaratory
2    judgment cause, but, more importantly, the fraud cause.
3    There is no evidence of fraud against VSDH that would
4    support any jury submission in this case.    The evidence
5    is that there was an agreement and that VSDH never even
6    dealt with -- frankly neverdealt with the Grosses; only
7    dealt through the mutual agent.   And
8                   THE COURT: Which one are you arguing
9    about?
10                  MR. SHAW: I'm sorry.     The fraud claim.
11                  THE COURT: Okay.   And you're finished
12   with the declaratory judgment?
13                  MR. SHAW:   Yes. On the declarator
                                                     y, I'm
14   just going to re-urge what I urged previously, which was
15   you cannot -- the Grosses could not add a declaratory
16   judgment case or cause of action to their counterclaim
17   and make it viable because the case that the declaratory
18   judgment dealt with was already before the Court, and
19   the law does not allow that addition.    So that's --
20                  THE COURT: So what case law are you
21   citing to for that?
22                  MR. SHAW: I don't have the case law, but
23   I'll get it.
24                  THE COURT: That would be helpful.
25                  MR. SHAW: It would.    It's pretty bedrock,
                                                               64



1    but I'll get that, Judge.
2                   THE COURT: That's the one that's a legal
3    issue anyway, correct?    So it's not going to show up on
4    the jury charge.
5                   MR. SHAW: Right.
6                   MR. ALDOUS: I think that's correct, Your
7    Honor.
8                   THE COURT: So I'll give you an
9    opportunity to brief it post trial.
10                  MR. ALDOUS: And I have no objection to
11   that.    I mean, in other words, I won'
                                          t assert some sort
12   of waiver or some other junk if it's not ruled on until
13   post trial because that's --I think that's appropriate.
14                  THE COURT: All right.    So let's talk
15   about the fraud now.
16                  MR. SHAW: Okay.     There is no proof of any
17   element that would support a fraud submission against
18   VSDH or Douglas Hickok.   The --
19                  THE COURT: Are you arguing for
20   Mr. Hickok?
21                  MR. SHAW: No.   I was just throwing that
22   in because I --
23                  THE COURT: A little gratuitous argument
                                                         ?
24                  MR. SHAW: A little gratuitous. But I
25   don't -- I don't think that the record supports any
                                                                65



1    fraud.   Certainly Betsy Gross's testimony didn't support
2    any fraud because Mrs. Gross testified that Mrs. Gross
3    wasn't involved in this transaction at the contracting
4    stage.   Mr. Gross complained ultimately that VSDH did
5    not buy back the home, but that's not evidence of fraud.
6                  Certainly with the breaches that Mr. Gross
7    undertook along the way started initially with failing
8    to escrow the money and ending with failing to wait
9    until September 9 to sell the home -- September 1 to
10   sell the home and/or to contract to sell the home.    So
11   given that, I don't believe there's any evidence to
12   support a fraud submission.
13                 THE COURT: Mr. Aldous?
14                 MR. ALDOUS: I'd like to have a candid
15   conversation with the Court and opposing counsel right
16   now because -- so the fraud claim is based upon the
17   guaranty language and the fact that Mr. Hickok testified
18   that he never intended to honor that because he had --
19   he thought something else was required.   Based upon the
20   rulings of the Court if he did -- if, in fact, the
21   guaranty is signed and is effective and irrespective of
22   what he may have said, I don't -- I mean --
23                 MR. CHAIKEN: There is no fraud claim.
24                 MR. ALDOUS: Well, so clearly there is a
25   claim for a false statement of material fact that was
                                                                 66



1    known to be false at the time it was made in connection
2    with a real estate transaction.    And there's no question
3    that the fact that Mr. Hickok was acting in a capacity
4    as a corporate representative would also bind the
5    corporation or the company.   The real question that I
6    have and what I don't know the answer to is if you have
7    now ruled that the guaranty agreement that Mr. Hickok
8    sought to avoid is no longer -- he cannot avoid it by
9    saying I didn't intend to do it.   That was the intent I
10   relied upon to file the fraud claim.   If the Court's
11   ruling is such that the -- the false nature of the
12   statement is now taken away, does that eliminate the
13   cause of action?
14                MR. CHAIKEN: It absolutely does.
15                MR. ALDOUS: I appreciate --
16                THE COURT: Are you the Court?
17                MR. ALDOUS: -- Mr. Chaiken's help, but --
18                MR. CHAIKEN: I didn't hear you say it's
19   the Court's opinion.   I thought you said you didn't know
20   whether it does
                   .
21                THE COURT: If the Court's ruling is such
22   that the false nature of the statement is now taken
23   away, does that eliminate the cause of action?
24                MR. CHAIKEN: I thought -- I'm sorry.       I
25   thought I heard him say he didn't know the answer to the
                                                              67



1    question, whether the Court's ruling on the existence of
2    the guaranty takes away the fraud cause of action.
3                 THE COURT: That was a question to the
4    Court.
5                 MR. ALDOUS: I don't know how you handle
6    this.
7                 THE COURT: Well, frankly, it's never
8    arisen before.   I believe what you asked for directed
9    verdict on was the existenceof a guaranty, whether or
10   not there was --
11                MR. ALDOUS: Which is correct.
12                THE COURT: And I granted youdirected
13   verdict on that
                   .
14                MR. ALDOUS: That's right.
15                THE COURT: There was, indeed, a guaranty.
16   So the question in fraud is whether or not there was an
17   intent to mislead.
18                MR. ALDOUS: Well --
19                THE COURT: Plaintiff must establish that
20   there was a false statement -- a false misrepresentation
21   of material fact.
22                MR. ALDOUS: That's where I get it.
23                THE COURT: Made a promise to do an act or
24   benefited by not disclosing that a third-party's
25   representation or promise was false.
                                                               68



1                  MR. ALDOUS: Right.    But so, to me, it's
2    not the intent.   The intent's there because he testified
3    to it. The real issue is:    Is it any longer a
4    misstatement of fact?   In other words, our problem was
5    that he --
6                  THE COURT: I think that the answer comes
7    from: What was the intent at the time that the
8    agreement was entered into
                              ?    You don't make that
9    decision after the fact.   You make it at the time --
10                 MR. ALDOUS: That's true.
11                 THE COURT: -- that the transaction took
12   place.   And that's what would guide that issue.
13                 MR. ALDOUS: So -- and I like to kind of
14   simplify this a little bit in my own mind because of its
15   feeble nature.    But if somebody -- if I sued because
16   they represented that the marble was blue and they said,
17   no, it was red and I thought it was red the whole time,
18   but the Court eventually rules that it's blue, is it any
19   longer a misrepresentation
                              , no matter whether you had
20   the intent or not?
21                 THE COURT: Well, I think fraud is based
22   on intent.
23                 MR. ALDOUS: I agree with that.
24                 THE COURT: And so you have to determine
25   the intent at the time that the transaction was entered.
                                                                69



1    You don't do it subsequent to it.
2                 MR. ALDOUS: Okay.      And then in that case
3    it would still get submitted.
4                 THE COURT: Mr. Chaiken?
5                 MR. CHAIKEN: First, I would say that it
6    would have to still constitute -- regardless of what the
7    intent was -- and we can come back to that issue in a
8    minute -- it would still have to constitute a
9    misrepresentation
                     , and it wasn't a misrepresentationif,
10   in fact, he entered into the guaranty.    In other words,
11   the argument that he's making is that there was a denial
12   of the existence of the guaranty.
13                Now, let me tell you.    There's a more
14   fundamental problem on the issue.     And in this regard,
15   we -- Mr. Hickok moves for a directed verdict.    And let
16   me explain why.   Mr. Aldous made a fundamental
17   misstatement of what the claim is for fraud in the
18   Grosses' live pleading. The Grosses' live pleading
19   states -- and this is the --
20                THE COURT: You want to give me the date
21   of the pleading you're referencing?
22                MR. CHAIKEN: Yes.      Well, I think I can.
23   It is -- what I can tell you is that I don't have a
24   file-marked copy, but I have one that has a --
25                THE COURT: Mr. Aldous, what's the date of
                                                                 70



1    your live pleading.
2                    MR. CHAIKEN: It was around the 15thday
3    of April 2013.    It wasn't signed by Mr. Aldous, which --
4                    THE COURT: Well, that doesn't matter.    I
5    just want to know when the live pleading was.
6                    MR. ALDOUS: I don't know which one he's
7    referring to.
8                    MR. CHAIKEN: It's counter-plaintiff's
9    third amended counterclaim against second amended
10   third-party petition, which is the live -- last pleading
11   that I've ever seen in this case filed against
12   Mr. Hickok by the Grosses.   And what's important about
13   that is --
14                   THE COURT: Hang on.    I need to find it.
15                   MR. CHAIKEN: Okay.
16                   THE COURT: The date again?
17                   MR. SHAW: April 2013.
18                   MR. CHAIKEN: April 2013, it looks like
19   around the 15th, tax day.    That's the service I'm
20   getting anyway.
21                   THE COURT: Which paragraph?
22                   MR. CHAIKEN: It's Paragraph Roman numeral
23   VII beginning on Page 10.    And what it states is --
24                   THE COURT: Let Mr. Aldous get back.
25                   (Brief interruption)
                                                               71



1                  THE COURT: You may continue.
2                  MR. CHAIKEN: Thank you, Judge.
3                  Mr. Aldous said that the basis of the
4    fraud claim was the lack of intent to honor a guaranty.
5    And if the Court looks at Page 10 of the
6    counter-plaintiff's third amended counterclaims and
7    second amended third-party petition, which is the live
8    pleading of the Grosses, the Court will see that they
9    state the following beginning in Paragraph 29.     "The
10   Grosses will show that counter-defendants' and
11   third-party defendants' conduct constitutes fraud in a
12   real estate transaction as defined by Section27.01 of
13   the Texas Business & Commerce Code."
14                 And for the record
                                    , counter-defendants and
15   third-party defendants are collectively identified in
16   this pleading as VSDH Vaquero Venture, Ltd., Evan L.
17   Shaw, and Douglas M. Hickok, who are the
18   counter-defendants and VSDH Vaquero Homes, Inc. and VSDH
19   Homes, Inc. is named as a third-party defendant.
20                 And it says, "Counter-defendants and
21   third-party defendants made a false representation that
22   they would buy the property back pursuant to the buyback
23   option in order to induce the Grosses to enter into the
24   contract.   The Grosses entered into the contract and
25   purchased the property at the full listed price of
                                                              72



1    $2,851,000" -- I'm sorry -- $2,851,871, even though the
2    property had been listed for two years due to the fact
3    the counter-defendants and the third-party defendants
4    made the false representation that they would buy the
5    property back pursuant to the buyback option.    The
6    Grosses' reliance directly and proximately caused them
7    substantial injury as set out above for
                                           which they seek
8    appropriate relief."
9                   This allegation relates to a -- the Court
10   sets forth that there was a false representation
11   concerning whether there would be a buyback of the
12   property, not whether there would be entry into a
13   guaranty.   So the claim, okay, that has been brought
14   against Mr. Hickok that would underlie the so-called
15   fraud claim is only related to whether or not he made a
16   representation that he would buy the property back
17   pursuant to the buyback option.   His only obligation
18   would be under the guaranty.    There's no mention of the
19   guaranty in this fraud claim.   Consequently, there is no
20   fraud claim of the nature that Mr. Aldous just
21   represented.
22                  THE COURT: On his directed verdict
23   motion?
24                  MR. CHAIKEN: In his directed -- in his
25   motion for directed verdict, which is one of the reasons
                                                            73



1    why I'm actually --
2                 THE COURT: No.   Actually, this is
3    Mr. Shaw's motion.
4                 MR. ALDOUS: That's right.
5                 MR. CHAIKEN: And this was one of the
6    reasons why Mr. Hickok specifically joins in the motion
7    for directed verdict.
8                 THE COURT: Well, you get your chance in a
9    minute.
10                MR. CHAIKEN: Okay.
11                THE COURT: Right now, this is Mr. Shaw's
12   motion.
13                MR. CHAIKEN: And then the second issue
14   that I need to address in terms of Mr. Aldous' response,
15   okay, which is what I was just doing, is that, you know,
16   there has to be a --
17                THE COURT: This is not as to your client
18   at this point in time.
19                MR. CHAIKEN: Okay.   Fair enough.
20                THE COURT: You'll get a chance.
21                MR. CHAIKEN: Well, okay.
22                THE COURT: This is between Mr. Shaw and
23   Mr. Aldous because it's as to VSDH, and it's Mr. Shaw's
24   motion.
25                MR. CHAIKEN: Okay.   Fair.
                                                              74



1                  THE COURT: You represent Mr. Hickok.
2    You'll get your chance to argue --
3                  MR. CHAIKEN: Sure.     Go ahead
                                                 .
4                  THE COURT: -- and make your motion with
5    regard --
6                  MR. CHAIKEN: Go ahead.
7                  THE COURT: We can't talk at the same
8    time, Mr. Chaiken.
9                  MR. SHAW: Well --
10                 THE COURT: Okay.    Let's go back and look
11   at what your motion was, Mr. Shaw, because there's been
12   a lot of discussion.
13                 Do you have that Cathye?
14                 Okay.    I found it. What Mr. Shaw said
15   was, "There is no proof of any element that would
16   support a fraud submission against
                                      VSDH or Mr. Hickok."
17   And then we talked about Mr. Shaw not representing
18   Mr. Hickok.   And he says, "I don't think that the record
19   supports any fraud.    Certainly Betsy Gross's testimony
20   didn't support any fraud because Mrs. Gross testified
21   that Mrs. Gross wasn't involved in this transaction at
22   the contracting stage.   Mr. Gross complained ultimately
23   that VSDH did not buy back the home, but that is not
24   evidence of fraud.    Certainly with the breaches that
25   Mr. Gross undertook along the way start
                                          ed initially with
                                                              75



1    failing to escrow the money and
                                   ending with failing to
2    wait until September9 to sell the home-- September 1
3    to sell the home and
                        /or to contract to sell the home
                                                       .
4    So given that, there's any evidence to support a fraud
5    submission."   So that's what Mr. Shaw said.
6                   And then Mr. Aldous said he wanted to have
7    his candid discussion, and we talked about when fraud
8    would be determined.   And I don't think you ever
9    responded to Mr. Shaw's motion, Mr. Aldous.
10                  MR. ALDOUS: Your Honor, with respect to
11   Mr. Shaw's motion, the only evidence of their intent not
12   to perform the buyback is the subsequent non-performance
13   that -- and I'm not sure that it would get to the point
14   of being fraud with respect to just the buyback, not the
15   guaranty.   If I'm limited to the statement in this
16   third- amended petition that the fraud is only related
17   to the -- that they made the false representation they
18   would buy the property back pursuant to the buyback
19   option, then I would agree that with respect to that
20   allegation that there is insufficient evidence of the
21   intent of the parties, that is VSDH and Doug Hickok, to
22   perform on that.   So, but if the -- well, I'll just
23   stop there.
24                  THE COURT: Okay.
25                  MR. ALDOUS: This is only with regard to
                                                               76



1    Mr. Shaw's motion because I would like to oppose
2    Mr. Chaiken's motion just because it's Mr. Chaiken
                                                      's.
3                   THE COURT: Okay.   So I will grant your
4    motion for directed verdict, Mr. Shaw, on the issue of
5    fraud with relation to the buyback provision.
6                   MR. SHAW: And that's the only claim of
7    fraud in this case.   So I'm -- I want to make sure that
8    I'm moving for a directed verdict on any and all fraud
9    allegations.
10                  THE COURT: Well, I think that would
11   depend on what was tried by consent.
12                  MR. SHAW: I don't think so.   They have to
13   -- how could you try that by consent when --
14                  THE COURT: If you addressed the issues
15   during the course of examination, direct and cross, that
16   would constitute --
17                  MR. SHAW: The only thing I was addressing
18   was whether or not the -- I admitted the company agreed
19   to the buyback, and the company --
20                  THE COURT: No.   We're talking beyond the
21   buyback.
22                  MR. SHAW: Okay. But the company agreed
23   to the personal guaranty.   That's the only evidence of
24   that.   The company always agreed to --
25                  THE COURT: Any evidence of what?
                                                              77



1                   MR. SHAW: There wouldn't be any evidence
2    to support fraud because the only -- even if you say it
3    was tried by consent, because the only evidence was the
4    company always agreed that there was going to be a
5    personal guaranty.
6                   THE COURT: I don't know.    I'm saying that
7    that is a possibility--
8                   MR. SHAW: Okay.   All right.
9                   THE COURT: -- that's out there.     I'm not
10   making any rulings.
11                  MR. SHAW: Okay.   I just want to make sure
12   I'm moving for directed verdict on all the fraud
13   allegations.   I understand from the pleading there's
14   only one, and it relates to the buyback.
15                  THE COURT: So with respect to what is set
16   out in the pleadings --
17                  MR. SHAW: Okay.
18                  THE COURT: -- I'm granting your motion --
19                  MR. SHAW: All right.
20                  THE COURT: -- for directed verdict
                                                     .
21                  MR. SHAW: All right.   Thank you.
22                  THE COURT: That doesn't mean that
23   somebody can't bring up that other issue.
24                  MR. SHAW: Okay.
25                  THE COURT: And I suspect it will come up,
                                                               78



1    but maybe I'm wrong
                       .
2                   THE COURT: Okay. Now --
3                   MR. CHAIKEN: May I ask a question on that
4    one point, though?   On that ruling that you just made, I
5    understood that Mr. Shaw was moving for a directed
6    verdict on that allegation and claim as it was against
7    both VSDH and Mr. Hickok.
8                   THE COURT: No, he wasn't.    That's why
9    you're here, Mr. Chaiken
                            .
10                  MR. CHAIKEN: Okay.
11                  THE COURT: But Mr. Aldous has conceded
12   that that issue applies to your client as well.
13                  MR. CHAIKEN: So would the ruling then
14   granting directed verdict on that aspect of the fraud
15   claim apply to Mr. Hickok is my question.
16                  THE COURT: Yes.
17                  MR. CHAIKEN: Thank you.     That was the
18   only --
19                  THE COURT: Mr. Aldous has already
20   conceded that.
21                  MR. CHAIKEN: Well, but I didn't get a
22   ruling from the Court on that specifically, and I just
23   wanted to --
24                  THE COURT: You didn't let me finish.
25                  MR. CHAIKEN: Okay.   Thank you.   I
                                                              79



1    appreciate that.
2                 THE COURT: All right.    Do you have
3    another motion, Mr. Shaw, or is that it because you just
4    had two?
5                 MR. SHAW: That's right.
6                 THE COURT: Okay.    All right.   Now it's
7    your turn, Mr. Hickok.
8                 MR. CHAIKEN: Okay. I'm Mr. Chaiken for
9    Mr. Hickok, but I'm happy to be called Mr. Hickok.
10                THE COURT: You're just happy to be
11   called.
12                MR. CHAIKEN: I'm just happy to be called.
13                Obviously, the first argument Mr. Hickok
14   moves for directed verdict on is that he was not sued
15   for any claims of fraud relating to the -- to the entry
16   into the -- of the guaranty agreement. The only fraud
17   claim brought against him specifically was the one that
18   we just discussed, which was related to performance of
19   the buyback. But for the same reasons that that claim
20   for fraud would fail, so does the -- so does the -- any
21   alleged claim -- well, let me just start with that.
22                There is no claim for fraud; therefore,
23   there's nothing to submit with respect to entry into the
24   guaranty on a fraud claim.   There's been no pleadingof
25   that nature, and there's been no allegation of fraud
                                                              80



1    related to the guaranty. So we would move for directed
2    verdict on that one alone.
3                 THE COURT: Do you have any other thing
4    you're going to move for directed verdict
                                             ? I'd like the
5    list.
6                 MR. CHAIKEN: Yes.     So number one is no
7    claim of fraud via guaranty. Second would be that there
8    is also -- if -- were the Court to find that there was
9    such a claim of fraud, there would be a need on the part
10   of the Grosses to introduce and establish evidence of a
11   false representation of a past or existing material fact
12   when the representation is made.
13                The only allegation, you know, with regard
14   to any aspect of a guaranty-related fraud would be that
15   there was a representation made regarding a future act
16   of performance at the time that the contract was entered
17   into, and it was made for the purpose of inducing the
18   party to enter into the contract which they entered into
19   because of the presence of the so-called guaranty
20   language in it.   There would also have to be evidence of
21   reliance on that -- on that issue -- I'm sorry -- that
22   representation supposedly.
23                THE COURT: So is that your third claim?
24                MR. CHAIKEN: The reliance is -- well,
25   this is also related to fraud, but it's -- but it's
                                                                81



1    reliance.
2                  THE COURT: Is it your third issue for
3    directed verdict?
4                  MR. CHAIKEN: Yes, reliance.     There's no
5    evidence of reliance on any promises regarding the
6    guaranty, specifically becausethe testimony was clear
7    that what Mrs. Gross expected was a -- was a guaranty by
8    Mr. Hickok and Mr. Shaw.   And never did they expect that
9    there would be only a personal guaranty by Mr. Hickok.
10   And so -- so the -- and the language that was in the
11   contract spoke to a joint and several guaranty, which
12   the Court found, as a matter of law, did not apply to
13   Mr. Shaw; but, nevertheless, they got what they asked
14   for.   And so there would be no reliance.
15                 They got language of a guaranty.
16   Enforceability is a different question.     But they didn't
17   rely on anything to their detriment, and there's no
18   evidence that they did, in entering into the contract.
19   And so -- and there was actually no evidence that there
20   was any offer to enter into a guaranty that was made
21   with no intention of fulfilling that promise.
22                 Indeed, to the contrary, all the evidence
23   was that Mr. Hickok, when talking about thepossibility
24   of a guaranty, said he would do it if Mr. Shaw did it,
25   which is exactly what was requested by the -- by the
                                                               82



1    Grosses and that the documents were prepared.    The
2    document had a guaranty in it.    While he didn't believe
3    it was legally enforceable; nevertheless, it was there.
4                  And so they entered into a contract that,
5    according to the Court's ruling, gave them exactly what
6    they wanted, at least in part, which was -- was a --
7    well, no, in whole actually.     It was a -- it was a
8    guaranty language in the -- in the contract itself by
9    both Mr. Shaw and by Mr. Hickok, which is what they
10   requested; although, it wasn't enforceable as to
11   Mr. Shaw.   So if anybody defrauded them, itwould be
12   Mr. Shaw by not signing the guaranty, but not
13   Mr. Hickok.   And so --
14                 THE COURT: Do you agree, Mr. Shaw?
15                 MR. SHAW: Well, I think -- I think there
16   is something to what he's saying.    I mean --
17                 THE COURT: That you defrauded them?
18                 MR. SHAW: No.    I never talked to them, so
19   what would be --
20                 THE COURT: Well, he said -- but you're
21   saying that that's correct; if anybody defrauded, it
22   would have been you.
23                 MR. SHAW: Well, I'm saying it's kind of
24   odd that they say they were defrauded by me not being
25   personally liable on it.   They never talked to me.     And
                                                                83



1    I think I've told them it depended on what I said.
2                   MR. CHAIKEN: So on this issue, aside from
3    the fact that there's no claim --
4                   THE COURT: Is there anything else, other
5    than reliance?
6                   MR. CHAIKEN: Well, no -- yes.    What I'm
7    saying is --
8                   THE COURT: No.   I'm getting your list.
9                   MR. CHAIKEN: I'm giving it to you.    I
10   just want to summarize what it is under the statute so
11   you will understand what I'm saying.
12                  THE COURT: No, because you'll get to go
13   back and do that.   That's why I want a list.
14                  MR. CHAIKEN: Yeah, the list --
15                  THE COURT: I want to define the universe.
16                  MR. CHAIKEN: The list is all the elements
17   of Section 27.01(1) -- I'm sorry, (A)(1) and (A)(2) and
18   that -- and (A) -- no, sorry -- and (C) -- excuse me --
19   and (D). All right. So we got the whole statute, all
20   the elements of the claim.
21                  THE COURT: And that's the entirety of
22   your list of a directed verdict?
23                  MR. CHAIKEN: That's the list, and I can
24   explain each one of those in detail.
25                  THE COURT: You already have.
                                                                 84



1                    MR. CHAIKEN: Okay.
2                    THE COURT: All right.    Mr. Aldous, you
3    may respond. Let's start first with fraud with respect
4    to the guaranty.
5                    MR. ALDOUS:   Your Honor, I would move at
6    this time for a trial amendment to add to that paragraph
7    that they've referenced the existence and denial of
8    existence of a guaranty.      I'd be happy to dictate it
9    into the record.    Or if the Court would give me
10   approximately 45 minutes, I could bring it back to you.
11                   THE COURT: And tell me the basis for
12   moving for a trial amendment.
13                   MR. ALDOUS:   Okay.   Judge, if you have the
14   2015 version, I'm at Page 773.
15                   THE COURT: 2015?
16                   MR. ALDOUS: Yes, ma'am.
17                   THE COURT: Response?
18                   MR. CHAIKEN: Well, I haven't -- I haven't
19   heard the grounds for the -- for the trial amendment, so
20   we oppose it.
21                   THE COURT: Mr. Aldous?
22                   MR. ALDOUS: Your Honor, we would offer on
23   -- in Paragraph 29 where it states the Grosses will show
24   the counter-defendant's and third-party defendant's
25   conduct constitutes fraud in a real estate transaction
                                                              85



1    as defined by Section 27.01 of the Texas Business &
2    Commerce Code, the next sentence should read -- my
3    proposed amendmentwould read, "The counter-defendant's
4    and third-party defendant's made a false representation
5    that they would guaranty the performance of VSDH in the
6    buyback provision of the contract," comma.   And that --
7    then it continues on from there.
8                  The live pleading, as it exists on Page 4,
9    Paragraph 15, sets forth the factual basis that they
10   agreed to a guaranty and that they denied the existence
11   of a guaranty.   The trial amendment is sought to conform
12   to the evidence.   And because it was omitted
13   unintentionally and that the grounds are that the -- the
14   defendant and cross -- I'm sorry.   VSDH and Mr. Hickok
15   are neither surprised, nor prejudiced by this amendment.
16                 THE COURT: Okay. Now, Mr. Chaiken?
17                 MR. CHAIKEN: Sure.    Well, I would note
18   that throughout the course of the trial when there was
19   discussion regarding intent to perform the guaranty, we
20   objected to the questions; and the Court ruled on those
21   objections.   So we certainly have preserved our
22   objection to the issue being presented.   And, certainly,
23   we have likewise made our objection here today on the
24   basis that the question or the issue is not supported by
25   the pleadings.
                                                              86



1                 And, consequently,there -- there's no
2    ground for the -- the granting of a trial amendment
                                                       .
3    While issues may be developed andthey may relate to
4    other issues that are pled, you know, just by virtue of
5    the nature of the transaction and the mere introduction
6    of some evidence on an unpleaded issue that is not fully
7    developed, it is not fully developed in terms of all of
8    the elements -- for example, those which I mentioned
9    previously in the statute itself -- then there is no
10   trial on that issue.   And, consequently, there willbe
11   no grounds for a trial amendment on that point.
12                THE COURT: Mr. Shaw?
13                MR. ALDOUS: Your Honor, before we do
14   that, do you have any objection to me taking my coat
15   off?
16                THE COURT: No.
17                MR. SHAW: I'm confused.    Is the trial
18   amendment a request to amend the petition to claim that
19   VSDH defrauded the Grosses by Shaw not being personally
20   liable?
21                MR. ALDOUS: No, Your Honor.
22                THE COURT: No.    It's based on the facts
23   that are set out in the pleading that --
24                MR. SHAW: Okay.
25                MR. ALDOUS: If you recall, there was a
                                                             87



1    summary judgmentgranted for Mr. Shaw on the issue of
2    this a long time ago.   So it's only relating to VSDH and
3    Hickok.
4                 MR. SHAW: Okay.     But it's -- it's saying
5    that VSDH and Hickok defrauded the Grosses because --
6    I'm not sure of the "because."   That's what I'm trying
7    to understand.
8                 THE COURT: Mr. Aldous?
9                 MR. ALDOUS: Because the agreement recited
10   a personal guaranty of Mr. Hickok,and that personal
11   guaranty was -- the intent was to never comply with that
12   personal guaranty by Mr. Hickok.    That misrepresentation
13   was made by Mr. Hickok both individually and as a
14   representative of VSDH.
15                MR. SHAW: Well, respectfully, Hickok
16   testified Hickok intended to be personallyguarantying
17   and intended for Shaw to be personally guarantying, but
18   needed a separate document, was anticipating a separate
19   document, and was going to sign a separate document. So
20   to claim that Hickok committed some type of fraud can't
21   -- isn't supported by the record.
22                One, Hickok never spoke to Gross about
23   that matter; and, two, the only evidence is that Hickok
24   intended to comply with the personal guaranty.   VSDH
25   intended to comply with the personal guaranty, but no
                                                             88



1    additional document came forward.
2                   THE COURT: So you're saying they intended
3    to comply with the guarantees that were not a part of
4    the agreement that the parties entered into?
5                   MR. SHAW: Hickok said, "I anticipated
6    there would be another document and I would sign it
                                                       .
7    But this document doesn't personally guaranty me because
8    I didn't sign it." But Hickok also testified, "I told
9    Buttemiller we agree to the personal guarantees. We
10   need to see the other document and no other document
11   ever came."   And even Gross testified, "Hey, the title
12   company messed up by not giving another document."
13                  THE COURT: Okay.
14                  MR. CHAIKEN: Can I go one step further
15   and simplify it?
16                  THE COURT: No.
17                  MR. CHAIKEN: I can't?    Okay.
18                  THE COURT: No.   I think it's pretty
19   simple.   The question is:   Is there any testimony in the
20   record with regard to the issue of whether or not the
21   guaranty was entered into and whether or not there was
22   reliance on it?    So I'm going to allow the trial
23   amendment.    Now --
24                  MR. SHAW: I'm going to move --
25                  THE COURT: -- there may be other concerns
                                                               89



1    with regard to that, but the trial amendment will be
2    granted because none of the grounds for denying it have
3    been set out for the Court.
4                  MR. SHAW: Well, I would say we were
5    surprised.   I'm surprised by this allegation because I
6    don't think there's any testimony to support it.   I
7    don't think that came into the record. So I don't know
8    how we could have tried it by consent because it wasn't
9    -- there wasn't anything in the record on this.    It was
10   only Hickok's agreement to personally --
11                 THE COURT: The petition, the last live
12   document, though, specifically stated, "Further,
13   according to Paragraph 4 of addendum A, Hickok and Shaw
14   both agreed to be personally responsible, jointly and
15   severally, in the event VSDH Vaquero, Ltd., does not
16   fully perform under the terms of thebuyback provision.
17   Neither Hickok nor Shaw conditioned his personal
18   guaranty on the other being liable as well."
19                 And so it's in that pleading, which is why
20   I'm saying it's tried by consent.
21                 MR. SHAW: Okay.
22                 THE COURT: You did address those issues.
23                 MR. SHAW: All right.   And I would like to
24   move for directed verdict on that.
25                 THE COURT: Well, you're not there yet.
                                                              90



1                 MR. SHAW: Okay.
2                 MR. CHAIKEN:    Your Honor, one other thing
3    is that --
4                 THE COURT: Wait a minute.
5                 MR. CHAIKEN: Okay.
6                 THE COURT: I think it was Mr. Aldous'
7    opportunity to respond to the fraud and the guaranty.
8    Is that where we were?    Because you had already made
9    your argument about it.
10                MR. CHAIKEN: About?
11                THE COURT: Asking for a directed verdict
12   on fraud with regard to the guaranty.
13                MR. ALDOUS: My -- do you want me to
14   proceed, Your Honor?   My recollection of the evidence is
15   different than Mr. Chaiken's.   My recollection of the
16   evidence is the Court knows the agreement has the
17   guaranty in it.   Mr. Hickok testified that he did not
18   believe that he was liable on that, and he did not
19   intend to comply with it unless he got a separate
20   document and that he was not going to honor that.
21                And then post breach, then they followed
22   that up with an email saying that nobody personally
23   guaranteed it.    So I believe that the evidence is
24   sufficient of the fraudulent part of that.
25                MR. CHAIKEN: May I respond?
                                                                91



1                    THE COURT: You may respond.
2                    MR. CHAIKEN: First of all, there's
3    absolutely no evidence in the record that Mr. Hickok
4    ever testified that he never intended to perform the
5    guaranty and certainly that he never intended to perform
6    any guaranty at the time that -- that he entered into
7    the contract.
8                    To the contrary, the only evidence is --
9    and the only evidence that he testified to was that he
10   didn't sign it.    He didn't believe he signed it in a
11   personal capacity but that he was willing to sign a
12   guaranty. He was willing to do a guaranty, that he
13   would sign an extra document at closing, providedthat
14   Mr. Shaw also guaranteed and signed such a document.
15                   So he never denied any intent to perform a
16   guaranty.   What he denied is, is that the elements and
17   the actions necessary to create the guaranty had ever
18   occurred.
19                   THE COURT: Okay.   I'm going to make my
20   ruling on that.    I think there's enough evidence to
21   submit that to the jury to make a determination.      So
22   with regard to Mr. Hickok's motion for directedverdict
23   on fraud of a guaranty, denied.
24                   All right.   Let's move on to false
25   representation of defendant.
                                                               92



1                 MR. CHAIKEN: Your Honor, the only other
2    thing is we haven't talked about the absence of evidence
3    on the specific elements of the claim itself.     Okay.
4    And I haven't been given the opportunity to argue those
5    specific points.
6                 THE COURT: Of the guaranty?
7                 MR. CHAIKEN: That's correct.
8                 THE COURT: You spent an excessive amount
9    of time, Mr. Chaiken, going through when I asked you to
10   just give me your list.
11                MR. CHAIKEN: I gave you a list
                                               .
12                THE COURT: You said that -- youdidn't
13   give me a list.    You gave me a synopsis of your
14   argument.
15                MR. CHAIKEN: No.
16                THE COURT: So we're moving along to the
17   false representations of defendant.   That's item two in
18   Section 27.01 of your directed verdict motion.
19                MR. CHAIKEN: So I just want to be clear.
20                THE COURT: That is clear.
21                MR. CHAIKEN: Item two in my directed
22   verdict motion?
23                THE COURT: Yes.     You said false
24   representation of defendant.   But you said that your --
25   that your directed verdict motion was based on Business
                                                              93



1    & Commerce Code, Section 27.01, Fraud in a Real Estate
2    Transaction. You said Section A(1); you said Section 2,
3    I believe; and then Section C and D.
4                  MR. CHAIKEN: (A)(1), (A)(2) and C and D,
5    so --
6                  THE COURT: So we are now on to A(2).
7                  MR. CHAIKEN: A(2), okay.   There is no
8    evidence that there was any false promise to do an act
9    when the false promise was material, made with the
10   intention of not fulfilling it, made to a person for the
11   purpose of inducing that person to enter into a
12   contract, and relied upon that person in entering into
13   that contract.   To the contrary, the evidence and the
14   only evidence is that Mr. Hickok said that he was
15   willing to enter into exactly what Mr. Gross said he
16   wanted, which was a joint and several -- I'm sorry -- a
17   guaranty by both him and Mr. Shaw, provided that
18   Mr. Shaw was also a guarantor.
19                 The language was in the contract.    The --
20   although, it -- and it purports to be a guaranty by both
21   of them; although, there's been a determination that one
22   aspect of that guaranty was not enforceable against
23   Mr. Shaw.   There -- so exactly what Mr. Gross relied
24   upon in entering into -- Mr. and Mrs. Gross relied upon
25   in entering into the contract, which
                                        was if they get a
                                                              94



1    personal guaranty, okay -- they got it in part.   They
2    got at least a guaranty, based on the Court's rulings,
3    from Mr. Hickok.
4                  The fact that he denied that it was --
5    that it was his personal signature and that it was
6    legally unenforceable does not reflect upon whether or
7    not he intended to perform the guaranty at the time that
8    he entered into the contract that had the guaranty
9    language in it, which is a necessary element of the
10   Court's finding that he was, in fact, a guarantor; that
11   by signing the document, it evidenced his intent to be a
12   guarantor.   So -- so for that reason, under (A)(2),
13   there is -- there's no evidence and there's insufficient
14   evidence to meet each of those four elements in (A)(2),
15   (a), (b), (c), and (d). And if that is true, then the
16   claim under subsection (A) of 27.01 fails as a matter of
17   law and for back of evidence.
18                 THE COURT: Response?
19                 MR. ALDOUS: Your Honor, the -- both Mr.
20   and Mrs. Gross testified they would not have entered
21   into the contract without the requested guarantees.    The
22   defendant knew that it was a negotiated term because it
23   was submitted by the Grosses to the contract through
24   Mr. Buttemiller to Mr. -- to VSDH and to Mr. Hickok.
25   And Mr. Hickok was aware that this was a term that they
                                                              95



1    wanted, and Mr. Hickok specifically said in the -- I
2    wrote in my notes that he said, "It's not my job to tell
3    them if their documents are deficient."   And that's
4    really the way it -- he went about it.    And, to me,
5    those meet the elements of fraud.
6                 MR. SHAW: Your Honor, may I comment on
7    this?
8                 THE COURT: No.     We haven't gotten to you
9    yet.
10                MR. SHAW: All right.
11                THE COURT: Or did we already get to you?
12   No, we haven't gotten to you yet.   This is Mr. Chaiken's
13   turn because you've already had your directed verdict
                                                         .
14                MR. SHAW: All right.
15                MR. CHAIKEN: Your Honor, that argument
16   actually proves that a directed verdict is warranted.
17   They said they would not have entered into the
18   transaction without the guaranty.   They got the guaranty
19   when they entered into the transaction. It's the same
20   guaranty the Court has found exists.   And all Mr. Hickok
21   is accused of having said is that the documentation of
22   the guaranty is insufficient.
23                Okay.   He didn't say that he didn't intend
24   to perform the guaranty.   And there's no evidence, a,
25   that he didn't intend to perform the guaranty at any
                                                               96



1    point in time, including when he entered into the
2    transaction.   So, consequently, this is no different
3    than an argument that, well, because he didn't perform
4    the guaranty, he committed fraud.     And that's the same
5    argument that they made and that the Court granted
6    directed verdict on with regard to the buyback issue.
7    So this is all forward looking as opposed to past and
8    existing material fact.   And so --
9                   THE COURT: The ruling on Number 2 is the
10   same on Number 1, overruled.   Let's move on to Number 3,
11   Item (C), 27.01.
12                  MR. CHAIKEN: "A person who makes a false
13   representation or false promise with actual awareness of
14   the falsity thereof commits the fraud described in
15   Subsection A of this section and is liable to the person
16   defrauded for exemplary damages.      Actualawareness may
17   be inferred where objective manifestations indicate that
18   a person acted with actual awareness
                                       ."
19                  THE COURT: That means that you are going
20   too fast.
21                      MR. CHAIKEN: Sure.     Under Subsection
22   D.
23                  THE COURT: We're at Subsection .C
24                  MR. CHAIKEN: I understand, but they
25   relate. They are a joint provision, okay.     Section D
                                                                97



1    requires evidence that Mr. Hickok had an actual
2    awareness of the falsity of a representation or a
3    promise made by himself or another that he failed to
4    disclose the falsity of the representation or promise to
5    the person allegedly defrauded and that he somehow
6    benefited from the false representation or promise that
7    -- that he committed.
8                 And -- and so, consequently, in this
9    instance, there was no benefit from the false
10   representation, if he made one, in the past because the
11   guaranty was there.   And -- and they got exactly what
12   they relied upon and what they requested.    And there's
13   no evidence that he had an actual awareness of the
14   falsity of the representation because he never
15   represented that he wouldn't perform a guaranty.     He
16   said to the contrary that he would as long --
17                THE COURT: Just not the one that was in
18   the agreement that theparties signed?
19                MR. CHAIKEN: No, he never said he
20   wouldn't perform that guaranty.    In fact,
                                               he said he --
21   specifically he would perform that guaranty if it was a
22   guaranty by Mr. Shaw and by Mr. -- by Mr. Hickok both.
23   And that's what the -- exactly that language says.    Now
24   the fact that it was unenforceable against Mr. Shaw does
25   not render it fraudulent as to Mr. Hickok.
                                                               98



1                    He -- you have found that he entered into
2    that agreement that that guaranty always existed and
3    that it was legally enforceable against him.      So he --
4    and he never said he wouldn't perform it.    There was no
5    evidence that he said he wouldn't perform it.
6                    THE COURT: Mr. Aldous?
7                    MR. ALDOUS: I really disagree with that.
8    Mr. Hickok put Mr. Shaw in charge of the matter.
9    Mr. Shaw represented by email, which is currently in
10   front of the Court, that there is no personal guaranty
11   when clearly there was.    That relates back to
12   Mr. Hickok's own testimony where he said that he did not
13   believe that he was responsible because of the fact that
14   he just said; that is because it wasn't mutually agreed
15   to even though the Court's already ruled it's a joint
16   and several obligation.
17                   So I believe all the evidence comes out
18   there where Mr. Hickok knew what the representation was
19   and the parties' agreement.    He knew that he did not
20   intend to comply with it, for whatever reason, that he
21   was actually aware of it, and that he knew that we
22   relied on it.
23                   MR. CHAIKEN: The problem with the
24   argument here and the evidence is that what Mr. Aldous
25   is saying is that there was evidence that Mr. Shaw,
                                                               99



1    after -- excuse me -- after -- after the contract was
2    signed, not as part of the inducement, but after the
3    matter was signed said there was no guaranty.    He never
4    said there was no intent to perform it.    He just said
5    there was no guaranty, okay, and so that's number one.
6                 Number two, if you look at Subsection (D)
7    and you look at all of Section 27.01, it has to be a
8    false representation of a past or existing fact at the
9    time the representation was made, not after the fact of
10   the representation. So, consequently, there can be no
11   actual awareness of thefalsity of a representation or
12   promise made in the past, okay, which is the -- the
13   inducement aspect of it, by looking at evidence of what
14   somebody else said after the fact.     And so,
15   consequently, there can be no fraud on that basis as
16   well.
17                THE COURT: I'm going to let the jury
18   decide on that.
19                All right.    Mr. Shaw?
20                MR. SHAW: Your Honor, I move for directed
21   verdict on the granted leave to amend plaintiff's
22   petition regarding what I now understand to be a claim
23   of fraud regarding the personal guarantees of -- I
24   assume it's just Hickok.
25                THE COURT: If it's just Hickok, then you
                                                            100



1    don't get to make a directed verdict. If it's VSDH --
2                  MR. SHAW: It's VSDH, but the claim, as I
3    understand it, is VSDH is liable because -- I'm sorry.
4    VSDH is liable on the claims that it misrepresented that
5    Hickok would be personally liable on the guaranty.    And
6    so that's what I understand the fraud claim.
7                  The fraud claim, as I understand it, is,
8    hey, VSDH, you knew Hickok wasn't personally liable on
9    the guaranty; and, therefore, and -- but you entered
10   into -- you told the Grosses otherwise is what I
11   understand the state of the pleading to be.
12                 THE COURT: Is that your assertion,
13   Mr. Aldous?
14                 MR. ALDOUS: Yes, Your Honor.
15                 THE COURT: Okay. So, we're all on the
16   same page.
17                 MR. SHAW: Okay. All right.      Now, on the
18   state of the assertion of the pleading, there is no
19   evidence to support a fraud submission because Hickok
20   was very clear.
21                 THE COURT: A fraud submission as to VSDH?
22                 MR. SHAW: Right.
23                 THE COURT: Okay.   Because Hickok was
24   clear --
25                 MR. SHAW: It was clear that Hickok fully
                                                             101



1    intended to sign the document to be personally liable.
2    And Hickok fully intended and believed a follow-up
3    document was going to be sent that required -- that was
4    separate and Hickok would sign.
5                   THE COURT: Did he express that --
6                   MR. SHAW: He did.
7                   MR. CHAIKEN: Of course, he did.
8                   THE COURT: -- to the Grosses at the time
9    that they entered the agreement?
10                  MR. SHAW: He told it to John Buttemiller.
11                  MR. CHAIKEN: To their agent.
12                  MR. SHAW: He never talked to the Grosses.
13   He only talked to Buttemiller.     And Hickok said --
14                  THE COURT: So he never talked to the
15   Grosses?
16                  MR. SHAW: Right.
17                  MR. CHAIKEN: He talked to them through
18   their agent.
19                  THE COURT: Mr. Chaiken, sit down.   You've
20   had your turn.   Sit down.   It's too hard for you to not
21   jump in.   So, please, sit down.
22                  MR. SHAW: Okay. So Hickok did -- Hickok
23   testified, "I told Buttemiller we'llsign it, but you've
24   got to send me a separate document and Shaw's got to
25   sign."   And that's -- and Hickok -- that was specific.
                                                              102



1                  THE COURT: So that's sort of a fact
2    issue?
3                  MR. SHAW: Well, I think it's undisputed
4    that -- so I don't think there's any evidence to submit
5    the fraud because there is no dispute as to that fact.
6    So if there's no -- if that fact exists unrebutted, then
7    there can be no fraud.
8                  THE COURT: Mr. Aldous.
9                  MR. ALDOUS: I'm not sure.    Maybe I didn't
10   hear the -- what remains unrebutted?
11                 MR. SHAW: The fact that Hickok told
12   Buttemiller, send me a document -- a separatedocument
13   that sets out the personal guaranty and Shaw -- and I
14   will sign it and Shaw will sign it.
15                 MR. ALDOUS: Well, I understand that he's
16   arguing the flip side of the evidence that's conflicting
17   before the jury related to whether or not fraud
18   occurred.   That may be his excuse for why he didn't
19   alert the parties and strike through thelanguage that
20   he knew to be a misrepresentation
                                     .     But that doesn't
21   mean there's not a fact issue for the jury to resolve on
22   that particular issue.
23                 The reality is that he said that he knew
24   at the time of closing when they went through with it
25   that there was a representation in there that he had --
                                                              103



1    was guarantying and that he did not -- was not liable
2    because of the fact that all these other documents and
3    Mr. Shaw had not been signed
                                .      He did not intend to
4    follow through with that guaranty and so that's --
5    that's the evidence.
6                   MR. SHAW: But that is not the evidence.
7    The evidence was he intended to follow through with it.
8                   THE COURT: Okay.    Let me tell you where I
9    have my concern, Mr. Shaw.   You're saying that
10   Mr. Hickok intended to follow through in a separate
11   document.
12                  MR. SHAW: Right.
13                  THE COURT: And that's what I understand
14   your argument is.
15                  MR. SHAW: That's right.
16                  THE COURT: I don't recall that he ever
17   testified that he told the Grosses that or that the
18   Grosses testified that he told them that.
19                  MR. SHAW: He never told the Grosses.
20                  THE COURT: And the issue of whether --
21   okay.    Well, then he definitely did not tell them.
22                  MR. SHAW: He talked to Buttemiller, their
23   agent.
24                  THE COURT: I think that's a fact that the
25   jury gets to construe, whether or not the agent was told
                                                           104



1    that; and if he was told that, whether or not he
2    conveyed it to the Grosses.
3                  MR. SHAW: Okay.   But where -- okay
                                                     .
4                  THE COURT: So that's a fact issue
                                                   .
5                  MR. SHAW: I got you.   But where is the
6    intent?   Where's the intention of fraud?
7                  THE COURT: The jury may find that there
8    is no intent, but it's still an issue that needs to go
9    to them for determination.
10                 All right. So that's all of our directed
11   verdicts.   Okay.
12                 MR. CHAIKEN: No, I had some more.
13                 THE COURT: No.
14                 MR. CHAIKEN: Is the Court --
15                 THE COURT: Put them in writing.
16                 MR. CHAIKEN: I'm sorry?
17                 THE COURT: Put them in writing.   It is
18   now 1:44.   We told the jury to come back at 2:30.   We
19   need to get the charge done.
20                 MR. CHAIKEN: I need to make a record.
21                 THE COURT: You can make your directed
22   verdict in writing
                      .
23                 MR. CHAIKEN: I don't have theopportunity
24   to make the directed verdict at the time that I'm making
25   it in writing.   Okay.
                                                             105



1                   THE COURT: I gave you an opportunity,
2    Mr. Chaiken.   I asked you for all of the elements of
3    your directed verdict. I gave you -- I asked you to
4    give me a list.
5                   MR. CHAIKEN: You said on the fraud claim,
6    and that's what Idid.
7                   THE COURT: No.    I did not say on the
8    fraud claim.   I said give me a list so that I can go
9    through all of them so that I know what the universe is.
10   You gave me your universe.
11                  MR. CHAIKEN: No.    I didn't give you the
12   universe, Your Honor, and I object to that.    I think the
13   record will reflect that all I gave you was the motion
14   on the fraud claims.   Okay.    And you offered me an
15   opportunity, okay, when I made a directed verdict motion
16   yesterday at the conclusion ofthe plaintiff's case in
17   chief to re-urge the motions for directed verdict that
18   I'd made yesterday.    Okay.   And --
19                  THE COURT: I said -- I didn't offer you
20   an opportunity. I said that you could make the -- that
21   I would not prevent you from making or re-urging the --
22                  MR. CHAIKEN: And I would like to re-urge
23   and urge further those motions because at the conclusion
24   of all the evidence, there's grounds for granting a
25   directed verdict on all of those points.    And I would
                                                             106



1    like to make my motion.
2                  THE COURT: Your motion has already been
3    made.   Your motion is in the record.   Since you're
4    re-urging what was already urged before, the motion is
5    denied.
6                  MR. CHAIKEN: So the Court is not going to
7    allow me to urge the motion at this point based upon the
8    conclusion of the trial and the conclusion of the trial
9    evidence?   Is that -- I just want to have a record of
10   that.
11                 THE COURT: The Court has allowed you to
12   make your -- to re-urge your motion, and I'm denying it.
13                 MR. CHAIKEN: I haven't gotten the
14   opportunity to re-urge it.
15                 THE COURT: You've already urged it.      The
16   urging is in the record. There is evidence of what it
17   was, so it is being denied.
18                 Now, you have 15 minutes for lunch recess,
19   and then we'll do the charge conference -- the informal
20   charge conference in my office.
21                 MR. SHAW: Yes, Your Honor. 2:00 o'clock?
22                 THE COURT: 2:00 o'clock.
23                 (Lunch recess taken)
24                 THE COURT:   All right.   This is the formal
25   charge conference.   It's taking place outside of the
                                                           107



1    presence of the jury.   Are there any objections to the
2    charge from the plaintiff?
3                  MR. ALDOUS: No, Your Honor.
4                  THE COURT: Any objections to the charge
5    from defendant, VSDH Vaquero Venture, Ltd.?
6                  MR. SHAW: There are, Your Honor.
7                  THE COURT: Any objections to the charge
8    from defendant Doug Hickok?
9                  MR. CHAIKEN: There are, Your Honor
                                                    .
10                 THE COURT: I'm sorry, Mr. Shaw.    Did you
11   say there are or there --
12                 MR. SHAW: There are.
13                 THE COURT: I'm sorry.   Okay.   Mr. Shaw?
14                 MR. SHAW: Your Honor, VSDH objects to
15   Question No. 1 in that it includes Doug Hickok in the
16   question and alternatively includes an instruction for
17   purposes in answering this question, you are instructed
18   that the Court has determined that Paragraph 4 of
19   Addendum A to the newhome contract constitutes Doug
20   Hickok's personal guaranty, et cetera.   I believe that
21   that is a comment on the weight of the evidence, even
22   though that's a legal ruling, and that should be omitted
23   and Doug Hickok's name should be omitted from that
24   question.   Any question regarding Doug Hickok should be
25   submitted separately.
                                                            108



1                 Question No. 2 --
2                 THE COURT: Well, let's just deal with the
3    number one first.
4                 MR. SHAW: All right.
5                 THE COURT: Response, Mr. Aldous?
6                 MR. ALDOUS: Your Honor, I believe the way
7    it's submitted is appropriate.
8                 THE COURT: All right.   The objection to
9    Question No. 1 is overruled
                              .
10                MR. SHAW:   Your Honor, while we're doing
11   that, can we have the agreement on the record that --
12                THE COURT: Yes, we do need to do that
                                                      .
13                MR. SHAW: An oral request for alteration
14   or instruction or question will be acceptable to all
15   parties, won't be objected to on appeal.
16                MR. CHAIKEN: And it's sufficient to
17   preserve error.
18                MR. ALDOUS: Can I restate it?
19                MR. SHAW: Please.
20                MR. ALDOUS: The parties have agreed that
21   they do not need to submit in writing a proposed
22   instruction in a correctly-worded form or a question in
23   correctly-worded form in writing, but may state it on
24   the record and there will be no objection and argument
25   in the Court of Appeals that they waived by failing to
                                                               109



1    submit it in writing and submitting it orally on the
2    record.
3                   MR. SHAW: Okay.   Thank you.
4                   THE COURT: Is that correct, Mr. Shaw?
5                   MR. SHAW: Agreed, Your Honor.
6                   THE COURT: Mr. Chaiken?
7                   MR. CHAIKEN: Yes.    And, Your Honor, on
8    the individual questions, would the Court hear my
9    objections to those as well because the Court ruled --
10                  THE COURT: Is your objection the same
11   one?
12                  MR. CHAIKEN: My objection to Question
13   No. 1 is the same, yes.
14                  THE COURT: Okay. It's overruled.
15                  MR. SHAW: Objection to Question No. 2,
16   Judge.    Given that Question No. 1 -- given that Question
17   No. 1 includes Doug Hickok's name, which I find
18   objectionable, I don't believe Question No. 2 should be
19   submitted because of his name.     There should be a
20   different question addressing Doug Hickok's failure to
21   comply, if any.
22                  THE COURT: And that question would be?
23                  MR. SHAW: I don't -- I'm submitting it
24   for Doug Hickok, so I just think he should be taken out
25   of the VSDH, Ken Gross issues.     And the Hickok and Gross
                                                             110



1    issues should be between Mr. Aldous and Mr. Chaiken.
2                 THE COURT: Mr. Aldous?
3                 MR. ALDOUS: I disagree.    I believe the
4    way the Court has submitted it is appropriate.
5                 THE COURT: Mr. Chaiken?
6                 MR. CHAIKEN: I agree with Mr. Shaw.      And
7    I have a proposed instruction -- a proposed question.
8    In lieu of No. 2 as it is stated, which would, of
9    course, change the numbering thereafter; or we could
10   call it 1(A). My proposed request is that given that we
11   object to Doug Hickok being included in Question 1, a
12   follow-up question should read as follows:   If you
13   answered "yes" as to -- as to VSDH in Question No. 1,
14   then answer this Question No. 2," or whatever we would
15   call that subsequent question.   "Otherwise, do not
16   answer that question," and that question specifically
17   would be:
18                Did Doug Hickok fail to comply with the
19   guaranty in the new home contract?   The grounds of that
20   request would be that Mr. Hickok's liability, if any,
21   under the new home contract is limited to guaranty
22   liability, which is predicated upon a finding of a
23   default by VSDH; and, therefore, the jury is confused by
24   including him in Question No. 1, causing the possibility
25   of an inconsistent result; namely, that there could be a
                                                            111



1    finding of "no" in Question No. 1 for VSDH and a finding
2    of "yes" for Mr. Hickok, which would be an impossibility
3    legally.
4                  THE COURT: Are you finished?
5                  MR. CHAIKEN: I am finished.
6                  THE COURT: Overruled.
7                  We'll go off the record for a minute.
8                  (Brief recess taken)
9                  THE COURT: Go back on the record.
10                 Question No. 3.   I'm sorry, Mr. Shaw.
11   Your next objection.
12                 MR. SHAW: No objection to Question No. 3,
13   Your Honor.
14                 THE COURT: Mr. Chaiken?
15                 MR. CHAIKEN: One objection, which is the
16   failure to include an instruction among the instructions
17   following the question, which would be pursuant to PJC
18   101.6 in the HohenbergBrothers versus George Gibbons
19   case, 537 S.W.2d 1 and 3 -- at Page 3 -- I'm sorry --
20   Texas Supreme Court1976.   Conditions precedentto an
21   obligation to perform are acts or events that are to
22   occur after the contract is made and that must occur
23   before there is a right to immediate performance and
24   before there can be a breach of contract
                                            ual duty.
25                 Failure to comply is waived by the other
                                                               112



1    party's failure to satisfy a condition precedent to the
2    first party's obligation to perform.     We believe that
3    that instruction is proper and should be added to the
4    instructions in Question No. 3 and would tender that
5    instruction at this time.
6                    THE COURT: Mr. Aldous?
7                    MR. ALDOUS: I disagree, Your Honor.   I
8    believe the way the Court has submitted it is
9    appropriate.
10                   THE COURT: What was that PJC reference
11   again?
12                   MR. CHAIKEN: The PJC reference, Your
13   Honor, is 101.6 Hohenberg Brothers versus George E.
14   Gibbons.
15                   THE COURT: I just asked for the PJC, not
16   for the cite.
17                   MR. CHAIKEN: Sorry.   That's in the PJC
18   specifically.
19                   THE COURT: And you're saying that's in
20   relation to Question No. 3?
21                   MR. CHAIKEN: Yes.   I think it --
22                   THE COURT: Overruled.    So that
23   instruction is denied.
24                   MR. SHAW: VSDH objects to Question No. 4,
25   Your Honor, as there's no evidence or insufficient
                                                             113



1    evidence to support a fraud submission against VSDH and
2    particularly with the guaranty in the home contract
3    because VSDH did not make a guaranty for the home
4    contract.
5                  Further, this submission would change the
6    -- is violating -- is a violation of the economic loss
7    doctrine.   It's an attempt to turn a breach of contract
8    case into a tort case, which is not proper.   It's not
9    supported by the evidence or the facts. So we object to
10   this submission of Question No. 4 and the inclusion of
11   VSDH in that submission for those reasons.
12                 THE COURT: Mr. Aldous?
13                 MR. ALDOUS: Your Honor, VSDH made a
14   misrepresentation in the contract through its agent,
15   Mr. Hickok; and, therefore, I believe that the question
16   is appropriate.
17                 THE COURT: All right.    Overruled.
18                 Mr. Chaiken?
19                 MR. CHAIKEN: Yes.   Mr. Hickok objects to
20   the first paragraph of Question No. 4.   Did any of those
21   listed below commit fraud against Ken and Betsy Gross
22   with regard to the guaranty in the new home contract?
23   My understanding of the allegation, which is an
24   allegation that has been made by way of a trial
25   amendment permitted this afternoon by the Court, is that
                                                            114



1    -- and I quote, defendant made a false representation
2    that they would guaranty performance of VSDH and the
3    buyback provision of the contract.
4                 And then it cites -- or the trial
5    amendment cites or recites back to Paragraph 15 of the
6    -- of the live pleading of which is counter-plaintiff's
7    third amended counterclaims and second-amended
8    third-party petition, which speaks only to the fact that
9    they were alleged of guaranteed and then they denied
10   having guaranteed --I'm sorry -- having denied the
11   existence of the guaranty. And there's been no pleading
12   and there's been no allegation of any type of fraudulent
13   conduct.
14                And at most -- and then in addition to
15   that, we would object to the inclusionof everything
16   starting with "or" under Subsection C of "fraud occurs
17   when," and everything underneath that in that the
18   allegation, via the trial amendment, is specifically
19   related to a representation.   And there's no allegation
20   of a false promise.
21                Consequently, to submit on a false promise
22   would be an improper comment on the cause of actions not
23   supported by the pleading.   So we would ask for the
24   striking of everything beginning -- everything after
25   Subsection C where it says, Fraud occurs when limiting
                                                             115



1    it to a representation and striking any action regarding
2    a false promise.
3                   THE COURT: Mr. Aldous?
4                   MR. ALDOUS: Your Honor, I simply disagree
5    and believe that the way the Court has submitted it is
6    appropriate.
7                   THE COURT: Overruled.
8                   Anything else, Mr. Shaw?
9                   MR. SHAW: Yes, Your Honor.   VSDH objects
10   to Question 5 for the same reasons, the limitations of
11   the economic loss doctrine and a failure to have
12   evidence and/or insufficient evidence to support and
13   have evidence sufficient to support the submission of
14   Question No. 5 and ask that it be stricken.
15                  THE COURT: Mr. Aldous?
16                  MR. ALDOUS: Your Honor, I believe that
17   the way the Court has submitted the question is
18   supported by the evidence and is appropriate.
19                  THE COURT: Overruled.
20                  Mr. Chaiken?
21                  MR. CHAIKEN: Yes.   Mr. Hickok objects to
22   the inclusion of the words, "or promise," in the
23   Question No. 5, given that the pleading that resulted
24   from a trial amendment today fails to mention anything
25   about a promise or a false promise and is limited to
                                                              116



1    alleging a false representation.    And, consequently, the
2    question is not -- does not conform to the pleadings and
3    the allegations of fraud that are contained therein.
4                  THE COURT: Mr. Aldous?
5                  MR. ALDOUS: Your Honor, I simply
6    disagree.   The evidence and the trial amendment are
7    appropriate and this question is appropriate.
8                  THE COURT: Overruled.
9                  Number 6.
10                 MR. SHAW: Your Honor, VSDH objects to
11   Subpart A in Number 6, the definition of loss of the
12   benefit of the bargain. The same creates a -- has a
13   definition that instructs the jury on what the
14   difference in the benefit of the bargain is.    It's not a
15   proper instruction in that it -- for one, it includes
16   the Grosses' real estate fee, which the Grosses elected
17   voluntarily to incur.     It doesn't give the jury the
18   ability to determine what losses, if any, the Grosses
19   incurred and instead provides an instruction to the jury
20   about how to do so.   So plaintiff objects to the same
21   and believes that the loss of the benefit of the bargain
22   definition should be, "You can consider the following."
23                 THE COURT: Plaintiff?
24                 MR. SHAW: I'm sorry.     Yes, I'm sorry.
25   Yes.   On H, it should say loss of benefit of the
                                                             117



1    bargain.    The jury can consider the difference between
2    the amount agreed to by the parties upon completion of
3    the buyback option and the new home contract, comma, and
4    the amount received by the Grosses --
5                   THE COURT: You misunderstood me
                                                  ,
6    Mr. Shaw.
7                   MR. SHAW: I'm sorry, Your Honor?
8                   THE COURT: You said, "So plaintiff
9    objects to the same
                       ."
10                  MR. SHAW: I'm sorry, Your Honor.
11   Defendant, VSDH.
12                  THE COURT: Okay.
13                  MR. SHAW: And the amount received by the
14   Grosses upon their sale of the property following the
15   breach; however, you are entitled to determine what
16   expenses were reasonable, if any.
17                  THE COURT: Mr. Aldous?
18                  MR. ALDOUS: That part is taken care of in
19   Subsection B, which is expenses of mitigation.    And it's
20   limited to reasonable and necessary expenses incurred.
21   And the defense can argue that the hiring of a real
22   estate agent wasn't reasonable; therefore, the way it's
23   submitted is appropriate.
24                  THE COURT: The objection is overruled.
25                  Mr. Chaiken?
                                                                118



1                    MR. CHAIKEN: Yes.    Mr. Hickok objects to
2    Question No. 6, first, on the language in the second
3    sentence beginning with, "or answered, quote, VSDH
4    Vaquero Venture, Ltd., or Doug Hickok, close quote, in
5    response to Question No. 2."      And -- I'm sorry, Your
6    Honor.   I'm looking at the wrong place here.    And
7    answered "no" for VSDH Vaquero Venture, Ltd., or Doug
8    Hickok in response to Question No. 3.
9                    And it goes on.   It says, "Then answer the
10   following question; otherwise, do not answer the
11   following question."    The -- that language is confusing
12   and will confuse the jury.    It also constitutes an
13   improper comment on the evidence and on the weight of
14   the evidence.    And, furthermore, it is not a necessary
15   instruction.    The jury can be permitted to simply -- if
16   they answered "yes" as to VSDH Vaquero Venture, Ltd.,or
17   Doug Hickok in response to Question No. 1, proceed to
18   answer the question without a reference to any other
19   conditions.
20                   Secondly, Mr. Hickok objects to Subsection
21   A, loss of the benefit of thebargain.      The definition
22   that is there reads,"the difference between the amount
23   agreed to by the parties for completion of the buyback
24   option in the new home contract and the amount received
25   by the Grosses upon their sale of the property following
                                                              119



1    the breach."    Mr. Hickok believes that the proper
2    measure of that loss and measure of damages would be the
3    difference between the amount of the buyback option and
4    the fair market value of the property at the time that
5    the Grosses sold it following the alleged breach.
6                   THE COURT: Mr. Aldous?
7                   MR. ALDOUS: Your Honor, I believe that
8    that's an inaccurate statement of the law, and I believe
9    the way the Court submitted it is appropriate.
10                  THE COURT: Number 6 is overruled.
11                  Mr. Shaw, anything further?
12                  MR. SHAW: Your Honor, I've got my same
13   objection to 7 that I placed for 6.
14                  THE COURT: The Court will overrule the
15   same objection.
16                  Mr. Chaiken?
17                  MR. CHAIKEN:   Your Honor, Mr. Hickok
18   believes that there is a question that should be
19   inserted prior to Question No. 7 or immediately
20   thereafter, but properly before.    And the proposed and
21   requested question would --
22                  THE COURT: Could you move themicrophone,
23   please?
24                  MR. CHAIKEN: -- and instruction would be
25   as follows:    Do you find that Ken Gross and/or Betsy
                                                           120



1    Gross waived their right to recover damages from Douglas
2    Hickok?
3                 Then it would be followed by an
4    instruction that reads: In answering this question,
5    consider that waiver is an intentional surrender of a
6    known right or intentional conduct inconsistent
                                                   with
7    claiming the right.   And then there would be an answer,
8    "yes" or "no."   The basis of that requested instruction
9    or question and instruction is, as the Court is aware,
10   there was exclusive remedies provision, sole and
11   exclusive remedies provision in the contract that while
12   -- while modified by the seller was not modified by
13   Mr. Hickok as a guarantor.
14                The Court has foundthat he is a party to
15   the contract, but he never agreed to the reinstatement
16   of damages remedies; and, therefore, there is a waiver
17   in the contract of the Grosses' ability to pursue the
18   recovery of damages fromMr. Hickok.
19                THE COURT: Mr. Aldous?
20                MR. ALDOUS: The principal obligor gave --
21   granted that right; and, therefore, the submission by
22   the Court is appropriate.
23                THE COURT: Overruled.
24                No. 8,    are there anyobjections,
25   Ms. Shaw?
                                                             121



1                   MR. SHAW: VSDH objects, Your Honor.
2                   MR. CHAIKEN: I'm sorry.   And then I was
3    going to add that Mr. Hickok objects to Question No. 7
4    on the same grounds as stated with regard to loss of the
5    benefit of the bargain in Question No. 6.
6                   THE COURT: Overruled.
7                   MR. SHAW: Question No. 8, VSDH objects
8    that there's no evidence or insufficient evidence to
9    submit the clear and convincing question to the jury
10   and, further, for the same economic loss limitations and
11   -- that I've previously objected to the other tort
12   submissions.   Ask that that question be stricken.
13                  THE COURT: Mr. Aldous?
14                  MR. ALDOUS: The Court's submission is
15   appropriate.
16                  THE COURT: Overruled.
17                  Mr. Chaiken?
18                  MR. CHAIKEN: Yes, Your Honor.   Mr. Hickok
19   objects to Question No. 8 on the same groundsas VSDH
20   has just enunciated and, furthermore, objects to the
21   inclusion of everything after item C regarding false
22   representation on the grounds that the case and
23   pleadings -- I'm sorry -- that the pleading, as amended
24   by the trial amendment today, does not speak about false
25   promises in any manner and solely speaks to false
                                                             122



1    representations.   And, thus, the question does not
2    conform to the pleadings; and the jury's being asked to
3    resolve a matter that has not been placed in
4    controversy.
5                   THE COURT: All right. The Court will
6    note that Question No. 8 is missing a blank for an
7    answer.
8                   MR. ALDOUS: I just noticed that.
9                   THE COURT: And so the space will be
10   entered that says, "Answer yes or no."   And a space will
11   be left for that. Other than that, the objections to
12   No. 8 are overruled.
13                  MR. SHAW: VSDH objects to Question 9,
14   Your Honor, for the same reasons that it posed for
15   Question 8 and ask that that question be stricken.
16                  THE COURT: Mr. Aldous?
17                  MR. ALDOUS: Same response, Your Honor.
18                  THE COURT: Overruled.
19                  Mr. Chaiken?
20                  MR. CHAIKEN: Yes.   Mr. Hickok objects to
21   the inclusion ofQuestion No. 9 in its entirety given
22   the absence of any evidence with regard to any predicate
23   for exemplary damages
                         .
24                  THE COURT: Mr. Aldous?
25                  MR. ALDOUS: I believe the Court's
                                                              123



1    instruction is appropriate.
2                  THE COURT: Overruled.
3                  All right. Anything further?     If not,
4    we'll bring in the jury.
5                  MR. SHAW: Can I get a new charge when you
6    redo it or re-print it?    MayI get a full new one,
7    please?
8                  THE COURT: We're not going to re-print
9    it.   This is the fix.
10                 MR. SHAW: Okay.   Is there an extra copy
11   laying around because I wrote all over mine?
12                 THE COURT: You have that original copy
13   that we used in chambers. That should be exactly the
14   same.
15                 All right. Mr. Aldous, are you going to
16   need the overhead?
17                 MR. ALDOUS: Yes, Your Honor.
18                 THE COURT: All rise. You may bring in
19   the jury.
20                 (Jury enters the courtroom)
21                 THE COURT: You may be seated.
22                 Ladies and gentlemen of the jury
                                                 , I
23   apologize for keeping you waiting so long.    It took us
24   longer to prepare the charge than we anticipated.     After
25   everyone has received a copy, I will read the charge of
                                                             124



1    the Court in this case to the jury.
2                  Please listen carefully as I read the
3    charge to you.   The original will be placed on the table
4    in the jury room when you retire to begin your
5    deliberations upon the verdict in this case.
6                  Ladies and gentlemen of the jury
                                                 , this
7    case -- after the closing arguments, you will go to the
8    jury room to decide the case, answer the questions that
9    are attached, and reach a verdict. You may discuss the
10   case with other jurors only when you are all together in
11   the jury room.   Remember my previous instructions.
12                 Do not discuss the case with anyone else,
13   either in person or by any other means.   Do not do any
14   independent investigation about the case or conduct any
15   research.   Do not look up any words in dictionar
                                                     ies or
16   on the Internet.   Do not post information about the case
17   on the Internet.   Do not share any special knowledge or
18   experiences with the other jurors.    Do not use your
19   phone or any other electronic device during your
20   deliberations for any reason.   I have given you a number
21   where others may contact you in case of an emergency.
22                 Here are the instructions for answering
23   the questions:   Number 1: Do not let bias, prejudice, or
24   sympathy play any part in your deliberations.
25                 Number 2: Base your answers only on the
                                                              125



1    evidence admitted in court and on the law that is in
2    these instructions and questions.    Do not consider or
3    discuss any evidence that was not admitted in the
4    courtroom.
5                 Number 3:     You are to make up your own
6    minds about the facts.    You are the sole judges of the
7    credibility of the witnesses and the weight to give
8    their testimony.    But on matters of law, you must follow
9    all of my instructions.
10                Number 4:     If my instructions use a word
11   in a way that is different from its ordinary meaning,
12   use the meaning I give you, which will be a proper,
13   legal definition.
14                Number 5:     All the questions and answers
15   are important.   No one should say that any question or
16   answer is not important.
17                Number 6:     Answer "yes" or "no" to all
18   questions unless you were told otherwise.    A "yes"
19   answer must be based on a preponderance of the evidence
20   unless you are told otherwise.    Whenever a question
21   requires an answer other than "yes" or "no," your answer
22   must be based on a preponderance of the evidenceunless
23   you are told otherwise.
24                The term, "preponderance of the evidence
                                                        "
25   means the greater weight of credible evidencepresented
                                                                126



1    in this case.    If you do not find that a preponderance
2    of the evidence supports a "yes" answer, then answer
3    "no."   A preponderance of the evidenceis not measured
4    by the number of witnesses or by the number of documents
5    admitted in evidence.       For a fact to be proved by a
6    preponderance of the evidence
                                , you must find that the
7    fact is more likely true than not true.
8                    Number 7:    Do not decide who you think
9    should win before you answer the questions and then just
10   answer the questions to match your decision.      Answer
11   each question carefully without considering who will
12   win.    Do not discuss or consider the effect your answers
13   will have.
14                   Number 8:    Do not answer questions by
15   drawing straws or by any method of chance.
16                   Number 9:    Some questions might ask you
17   for a dollar amount.    Do not agree in advance to decide
18   on a dollar amount by adding up each juror's amount and
19   then figuring the average.
20                   Number 10:    Do not trade on your answers.
21   For example, do not say, "I will answer this question
22   your way if you will answer another question my way."
23                   Number 11:    Unless otherwise instructed,
24   the answers to the questions must be based on the
25   decision of at least five of the six jurors.      The same
                                                            127



1    five jurors must agree on every answer.    Do not agree to
2    be bound by a vote of anything less than five jurors
3    even if it would be a majority.
4                 As I have said before, if you do not
5    follow these instructions, you will be guilty of jury
6    misconduct; and I might have to order a new trial and
7    start this process over again.    This would waste your
8    time and the parties' money and would require the
9    taxpayers of the county to pay for another trial.    If a
10   juror breaks any of these rules, tell that person to
11   stop and report it to me immediately.
12                Definitions and instructions:     The jury is
13   instructed that a fact may be established by direct
14   evidence or circumstantial evidenceor both.     A fact is
15   established by direct evidence when proved by a witness
16   who saw the act done or hear thewords spoken or by
17   documentary evidence.   A fact may be established by
18   circumstantial evidencewhen it may be fairly and
19   reasonably inferred from other facts proved.
20                Question No. 1:     Did any of the following
21   parties fail to comply with the new home contract?
22   Answer "yes" or "no" for VSDH Vaquero Venture, Ltd.,
23   Doug Hickok, Ken Gross, and Betsy Gross.
24                For purposes of answering this question,
25   you are instructedthat the Court has determined that
                                                           128



1    Paragraph 4 of Addendum A to the new home contract
2    constitutes Doug Hickok's personal guaranty of VSDH
3    Vaquero Venture, Ltd's obligation underthe buyback
4    options granted from VSDH Vaquero Venture, Ltd. to the
5    Grosses.
6                 Question No. 2:   Who of those above whom
7    you have found to have failed to comply with the
8    contract failed to comply with the contract first?
9    Answer for VSDH Vaquero, Ltd., Doug Hickok, Ken Gross,
10   and Betsy Gross.
11                A failure to comply must be material.    The
12   circumstances to consider in determining whether a
13   failure to comply is material include:   One, the extent
14   to which the injured party will be deprived of the
15   benefit which he reasonably expected
                                       ; two, the extent to
16   which the injured party can be adequately compensated
17   for the part of that benefit of which he will be
18   deprived; three, the extent to whichthe party failing
19   to perform or to offer to perform will suffer
20   forfeiture; four, the likelihood that the party failing
21   to perform or to offer to perform will cure his failure,
22   taking into account the circumstances including any
23   reasonable assurances; five, the extent to which the
24   behavior of the party failing to perform
                                            or to offer to
25   perform comports with standards of good faith and fair
                                                             129



1    dealing.
2                  Question No. 3:   Was the failure of any of
3    the parties listed below excused?   Answer "yes" or "no"
4    for each:   VSDH Vaquero Venture, Ltd., Doug Hickok, Ken
5    Gross, and Betsy Gross.
6                  For purposes of answering this question,
7    you are instructedthat a failure to comply by one party
8    is excused by the other party's prior repudiation of the
9    same agreement.
10                 A party repudiates an agreement when the
11   party indicates, by the party's words or actions, that
12   the party is not going to perform its obligations under
13   the agreement in the future, showing a fixed intent to
14   abandon, renounce, and refuse to perform the agreement.
15                 For purpose of answering this question,
16   you are instructedthat a failure to comply with an
17   agreement by one party is excused by the other party's
18   prior failure to comply with a material obligation of
19   the same agreement.
20                 Failure to comply by a party is excused if
21   compliance is waived by the other party.   Waiver is an
22   intentional surrender of a known right or intentional
23   conduct inconsistent with claiming the right.
24                 Question No. 4:   Did any of those listed
25   below commit fraud against Ken and Betsy Gross with
                                                             130



1    regard to the guarantee in the new home contract?
2                 Fraud occurs when, a, there is a false
3    representation of a past or existing material fact and,
4    b, the false representation is made to a person for the
5    purpose of inducing that person to enter a contract and,
6    c, the false representation is relied on by the person
7    in entering into that contract; or, a, a party makes a
8    false promise to do an act and, b, the promise is
9    material and, c, the promise is made with the intention
10   of not fulfilling it and, d, the promise is made to a
11   person for the purpose of inducing that person to enter
12   into a contract and, e, that person relies on the
13   promise in entering into that contract.
14                Answer "yes" or "no" for each:   VSDH
15   Vaquero Venture, Ltd., or Doug Hickok.
16                If you answered "yes" to either question
17   -- to either party in Question No. 4, then answer
18   Question No. 5; otherwise, do not answer Question No. 5.
19                Question No. 5:   Did any of those listed
20   below have actual awareness of the falsity of the
21   representation or promise you found to be fraud in
22   Question No. 4?
23                Actual awareness may be inferred
                                                 where
24   objective manifestations indicate a person acted with
25   actual awareness.
                                                            131



1                 Answer "yes" or "no" for each:   VSDH
2    Vaquero Venture, Ltd., Doug Hickok.
3                 Question No. 6:   If you answered "yes" to
4    VSDH Vaquero Venture, Ltd. or Doug Hickok in response to
5    Question No. 1 or answered VSDH Vaquero, Ltd. or Doug
6    Hickok in response to No. 2 and answered "no"for VSDH
7    Vaquero Venture, Ltd. or Doug Hickok in response to
8    Question No. 3, then answer the following question.
9    Otherwise, do not answer the following question.
10                What sum of money, if any, if paid now in
11   cash would fairly and reasonably compensate Ken and
12   Betsy Gross for their damages, if any, that resulted
13   from the failure to complyyou found in answer to
14   Question No. 1?
15                Consider the following elements of
16   damages, if any, and none other:   A, loss of the benefit
17   of the bargain; B, expenses of mitigation. Do not add
18   any amount for interest on any damages, if any.
19                Answer separately in dollars and cents for
20   damages, if any, for, A, loss of the benefit of the
21   bargain, the difference between the amount agreed to by
22   the parties for completion of the buyback option in the
23   new home contract and the amount received by the Grosses
24   upon the sale of the property following the breach; B,
25   expenses of mitigation,reasonable and necessary
                                                              132



1    expenses incurred by Ken and Betsy Gross in selling the
2    property following the breach.      And there's a space
                                                          for
3    an answer there.
4                   If you answered "yes" to any of those
5    listed in Question No. 4, then answer the following
6    question.   Otherwise, do not answer the following
7    question.
8                   Question No. 7:   What sum of money, if
9    any, if paid now in cash would fairly and reasonably
10   compensate Ken and Betsy Gross for their damages, if
11   any, that resulted from the fraud you found in answer to
12   Question No. 4?
13                  In answering questions about damages, you
14   must answer each question separately.    Do not increase
15   or reduce the amountin one answer because of your
16   answer to any other question about damages.    Do not
17   speculate about what any party's ultimate recovery may
18   or may not be.    Any recovery will be determined by the
19   Court when it applies the law to your answers at the
20   time of judgment. Do not add any amount for interest on
21   damages, if any.
22                  Consider the following elements of
23   damages, if any, and none other:    A, loss of the benefit
24   of the bargain; B, expenses of mitigation; C, incidental
25   damages.    Do not add any amount for interest on damages,
                                                            133



1    if any.
2                 Answer separately in dollars and cents for
3    damages, if any, for A, loss of the benefit of the
4    bargain, the difference between the amount agreed to by
5    the parties for completionof the buyback option in the
6    new home contract and the amount received by the Grosses
7    upon the sale of the property; B, expenses in
8    mitigation, reasonable and necessary expenses incurred
9    by Kenneth Gross and Betsy Gross in selling the property
10   following the breach; C, incidental damages,reasonable
11   and necessary expenses incurred by Kenneth Gross and
12   Betsy Gross to construct the addition above in the
13   amount of $156,871.
14                Answer the following question only if you
15   have unanimously answered "yes" to any party in response
16   to Question No. 5.    Otherwise, do not answer the
17   following question.    To answer "yes" to any part of the
18   following question, your answer must be unanimous.   You
19   may answer "no" to any part of the following question
20   only upon a vote of five or more jurors.   Otherwise, you
21   must not answer the following question.
22                Question No. 8:    Do you find by clear and
23   convincing evidence that the harm to Ken and Betsy Gross
24   resulted from fraud?
25                "Clear and convincing evidence" means the
                                                             134



1    measure or degree of proof that produces a firm belief
2    or conviction of the truth of the allegation sought to
3    be established.
4                 Fraud occurs when, A, there is a false
5    misrepresentation-- excuse me -- a false representation
6    of a past or existing material fact and, B, the false
7    representation is made to a person for the purpose of
8    inducing that person to enter into a contract and, C,
9    the false misrepresentation is relied on by the person
10   entering into that contract; or, A, a party makes a
11   false promise to do an act and, B, the promise is
12   material and, C, the promise is made with the intention
13   of not fulfilling it and, D, the promiseis made to a
14   person for the purpose of inducing thatperson to enter
15   into a contract and, E, that person relies on the
16   promise in entering into that contract.
17                Answer "yes" or "no."
18                Answer the following question only if you
19   have unanimously answered "yes" to any party in response
20   to Question No. 5.    Otherwise, do not answer the
21   following question.
22                You must unanimously agree on the amount
23   of any award of exemplary damages.
24                Question No. 9:    What sum of money, if
25   any, if paid now in cash should be assessedagainst
                                                              135



1    those listed below and awarded to Ken and Betsy Gross as
2    exemplary damages, if any, for the conduct found in
3    response to Question No. 4?
4                  "Exemplary damages" means an amount you
5    may in your discretion award as a penalty or by way of
6    punishment.
7                  Factors to consider in awarding exemplary
8    damages, if any, are:    One, the nature of the wrong;
9    two, the character of the conduct involved; three, the
10   degree of culpabilityof those listed below; four, the
11   situation and sensibilities of the parties concerned;
12   five, the extent to which such conduct offends a public
13   sense of justice and propriety; six, the net worth of
14   those listed below.
15                 Answer in dollars and cents, if any, for
16   each:   VSDH Vaquero Venture, Ltd. and Doug Hickok.
17                 Mr. Aldous, you may proceed.
18                 MR. ALDOUS: Thank you, Your Honor.      Your
19   Honor, did I ask you to give me a five-minute warning?
20                 THE COURT: Yes, you did.
21                 MR. ALDOUS: Thank you.
22                 THE COURT: You're going to need to move
23   that more to an angle.   I can't see it.
24                 MR. ALDOUS: Sure.    How's that?
25                 THE COURT: That's fine.
                                                             136



1                   MR. ALDOUS: Okay.   Sorry.
2                   Ladies and gentlemen of the jury
                                                  , I
3    appreciate all the time and effort that you've put into
4    this.   And now I don't have very much time, but this is
5    one of the last chances we get to talk to you.   So as I
6    was sitting here thinking, you know, one of the things
7    the Judge told you that you read is that you guys are
8    the sole judges of the credibility of the witnesses and
9    the facts of this case.   And what that means is you've
10   got to use your common sense in what you've learned in
11   everyday life to see who was telling the truth and who
12   isn't, because you really have been given two separate
13   choices.
14                  One are the Grosses, who say, you know
15   what, we were acting like this was all, you know, an
16   agreed deal.   We all knew what was going on.   We weren't
17   upset about it or concerned about it until in May when
18   they were not answering our phone calls, and then we
19   became concerned about it.   Or you have their version of
20   the events, which is, oh, we had all these problems
21   where they didn't comply with the contract; although, we
22   never said that.
23                  So I was thinking about how in the world
24   can we, you know, reach that decision where we decide,
25   well, you know, who's right and who's wrong.    And, you
                                                            137



1    know, if there's a -- I think the best way to look at it
2    is:   Who said what before they ever came to court.    And
3    what I mean by that is everybody in this -- you saw all
4    these emails that everybody sent around.   And who was
5    consistent with the way they testified here as to what
6    they had in their emails?   And that's the Grosses.
7                   If you remember, Exhibit 24 was the email
8    that -- or the -- I'm sorry -- the fax that Ken Gross
9    sent over to Mr. Hickok.    And he said, Mr. Hickok, you
10   know, I'm starting construction on this addition, and
11   I'd like for you guys to come on out and take a look at
12   it and take a look at the plans and all of that.
13                  And then Mr. Hickok's response was --
14   after a couple of phone calls and then this fax was to
15   make an appointment, and they cancel on the day of the
16   appointment.   That's Exhibit 27.   He just decided that,
17   you know, it wasn't important enough for him to come
18   that day, and so he decided to come sometime later.
19                  Now the reason that that's not a big issue
20   for us in the way it was back then is because we were
21   not planning on trying to work up a case or anything
22   like that, well, like I believe they were.   And,
23   instead, we were just operating because we -- everybody
24   knew what was going to be built from the day the deal
25   was done, from the day that Ken walked around and showed
                                                                138



1    Mr. Hickok exactly what he was proposing.
2                  Now to believe Mr. Hickok, this
3    experienced real estate broker, he entered into a deal
4    on a $2.8 million house for an addition to be built and
5    them to buy it back without knowing what was going to
6    happen.   Is that something that we can accept, that this
7    businessman that has over 40 businesses with separate
8    real estate holdings is all the sudden, he doesn't --
9    he's not going to find out it wasn't specific and he
10   didn't need it?   Well, it's in the contract.    I mean,
11   and he kind of said that too.   He said the contract
12   itself had the listing of what was going to go into the
13   addition.
14                 But now -- and then, of course, there's
15   tons of emails that were exchanged over time that you
16   guys saw where the issue of the buyback came up.    And
17   not one time is there an email, letter, or anything else
18   from the VSDH side of the equation back to the Grosses
19   to say, you know what?   You've already breached the
20   agreement, so we don't have to do anything.
21                 It wasn't the way it was.    The
22   correspondence from Mr. Shaw was always the same; good
23   to hear from you.   Hope all is well.   Planning to review
24   the documentation, and I'm glad to talk.    I want to let
25   you know that the entity that sold the home is not
                                                             139



1    financially solvent so that you will -- that will no
2    doubt impact where this goes.    Please call me when you
3    can.
4                   It was his consistent statement every
5    time.    That's Exhibit 84.   Exhibit 65, Betsy, thank you
6    for your email today.     I'm glad to talk, but I want to
7    make sure you're aware that the entity that sold the
8    home is not financially solvent.    Not one time did
9    anybody say, you know what, you guys already breached
10   the agreement because, number one, you didn't let us
11   come out there and take a look at the plans beforehand,
12   not once.   Not once did they say, you know what, we
13   would have put the other thing on the other side.      We
14   would have put the -- you know, the bathroom on the
15   other side.   We would have not put granite on the -- on
16   the bar.    They didn't say any of that.
17                  In fact, at no point in time did they
18   raise anything about this deal, other than the fact that
19   VSDH was insolvent.   Now, Mr. Shaw might have come in
20   here to the courtroom and said he had the cash to be
21   able to buy this house, but you'll look in vain for any
22   email where he said that to the Grosses.    Look, don't
23   panic.   Don't sell it.   Even though VSDH is insolvent,
24   I've got the ability to take care of it.    That's no
25   where in there.   At no point in time did he ever say
                                                             140



1    that.
2                  In addition, here's Exhibit 88, a letter
3    from Van Shaw, June 7, 2009.   Dear Betsy, thank you for
4    your June 6th email.   Please call me.   I did review the
5    enclosure you sent and note that the entity is the only
6    responsible party.   It does not contain any personal
7    guaranty, which is what I remember.   So not only are
8    they saying the guarantees that were in the contract,
9    they really don't exist, but now they're saying that
10   we're not going to -- the personal guarantees aren't
11   there, and the entity that you're dealing with is
12   bankrupt.
13                 It was interesting to me that Mr. Chaiken
14   suggested that why didn't you call us and offer us the
15   deal that you were having to do because we breached the
16   agreement to buy the home back.    That's kind of --it's
17   kind of interesting.   I'm going to breach the agreement,
18   but I want to get a better deal.   So if you'll give me
19   the deal that you're going to have do so that I can --
20   so you can avoid some of your damage, that would be good
21   for us.
22                 Exhibit 36, June 15th from Ken and Betsy
23   Gross, Doug, I called and left a message on your
24   voicemail.   I spoke to Van and he said that VSDH does
25   not have enough money to honor our contract and buy back
                                                             141



1    the house; thus, VSDH does not intend to perform our
2    contract.    Where's the response to that saying, wait a
3    minute; that's not right?
4                   Now Mr. Shaw contends that's because
5    everybody was conspiring against him and they had
6    lawyered up, without recognizing that he had been the
7    only lawyer making statements about what the law is or
8    is not during the whole deal.    So you have one party who
9    says the same thing that they've said all along.    That's
10   the Grosses.   And then you have the defense, who has
11   come in here and has now raised all these objections and
12   supposedly breaches of an agreement that they never
13   raised until we got to this courtroom.
14                  Now they're going to point to that letter
15   from Hap Stern who said, oh, you didn't escrow this
16   stuff and we're going to rely on the contract.   We don't
17   waive anything.   The reality is they did waive it. They
18   had an opportunity to do something, and they chose not
19   to do it.    So if you look at the charge, the questions
20   that have been asked of you, starting with Question
21   No. 1, you were asked if any of the following parties
22   failed to comply with the new home contract.
23                  I'd submit to you the answer is "yes" for
24   VSDH and "yes" for Doug Hickok and "no" for Betsy and
25   Ken Gross.   And the reason I say this is, you remember
                                                                142



1    all the testimony that we got into about, well, I didn't
2    mean to sign that individually and there was no
3    guaranty, it had to come in a different -- in a
4    different document.   Well, the Court's now ruled and
5    instructed you that for the purposes of answering this
6    question, the Court has determined that Paragraph 4 of
7    the addendum to the new home contract constitutes a
8    personal guaranty by Doug Hickok of VSDH's obligations
9    under that agreement.
10                  All that testimony means nothing.     The
11   question is:   Did VSDH breach?   If they breached, then
12   Doug Hickok breached.    And that's why I say "yes,"
13   "yes," and then, "no."   So you might say, well, why are
14   you saying "no" as to Ken and Betsy Gross?   Well, the
15   instruction under Question No. 2 tells you what a
16   material breach is.   A material breach is one that the
17   parties really, really wanted and cared about.     That
18   escrow agreement that you -- that you heard, their
19   complaint is not that the agreement -- I mean that the
20   money was held in escrow, because it was.    Their
21   complaint is that it wasn't held with the title company
22   that they picked.
23                  Now, if you're an escrow agent, it doesn't
24   matter who you work for; you're an escrow agent, and
25   you're bound to do what the escrow agreement says.
                                                            143



1                  MR. SHAW: Your Honor, he's arguing
2    outside of the evidence.
3                  THE COURT: Careful, Mr. Aldous.
4                  MR. ALDOUS: Yes, Your Honor.
5                  The point is the escrow agreement there --
6    was there to make sure that the money, the bank loan to
7    the Grosses, was used to build the addition.    The money
8    was used by the Grosses to build the addition.    It went
9    exactly like it was supposed to go.   What that is is a
10   made-up breach to come in here and argue as a way to get
11   out of their responsibility.   You say, okay.   Well, what
12   about the issue of the plans and specifications?   Same
13   thing.
14                 Those plans -- those specifications --
15   and, you know, they can say they're not specifications
16   all you want, but when they know it's supposed to be the
17   same like and kind as the rest of the house -- and, by
18   the way, not every room is supposed to look like the
19   foyer or the library with all that elaborate, you know,
20   woodwork and everything like that.    I guarantee you that
21   if you had pictures of every one of the bedrooms in
22   there, not one of the bedrooms --
23                 MR. SHAW: Your Honor, I'm going to
24   object.   He's arguing outside of the evidence.
25                 THE COURT: It's argument, Counsel
                                                   .
                                                              144



1                    MR. SHAW: All right. But there's no
2    evidence to support what he's saying.
3                    THE COURT: Mr. Shaw, no gratuitous
4    sidebar, please.
5                    MR. ALDOUS: You'll be able to look at the
6    photographs.    They're in evidence, and you can determine
7    for yourself.    But even Mr. Kramer admitted that not
8    every room was the same.    And so the real issue here is:
9    Is this an important, material thing for them?     Was it
10   important?    And the answer's, "no."   They knew what was
11   going to be built.    When we asked them to come out and
12   take a look, sure we did because we're being cordial.
13   We didn't know that they were planning every way they
14   could to get out of it.    But we were being cordial.
15   Come on out.    Take a look.
16                   Mr. Hickok sends a message two weeks later
17   on the day he's supposed to show up, hey, I'm not going
18   to be there.    It if was important to him, he would have
19   been there.    If it was important to him --if he didn't
20   know, he would have come.      Now, he did come out and he
21   took a look.    And this is why I know it wasn't important
22   to him; because, although he said now that I told him,
23   you know, you should have called me out before you
24   started, that's not what the Grosses recall.
25                   But the most important thing is:   What did
                                                                145



1    he ask that needed to be changed.     What did he say?     You
2    know what, that's wrong.   Don't do it that way.     You
3    need to do this.   No, wait a minute.    You need to use
4    different materials, not a bit. Give me those plans.        I
5    need to take them over to somebody else back -- back
6    then let them take a look at them.    It never happened.
7    And why?   Because it wasn't material.   It wasn't
8    important.
9                  The one thing that is interesting is they
10   say that we breached the agreement by selling this on
11   September -- beforeSeptember 1st, 2009.     Despite the
12   fact that we continued to ask them, hey, look.      We're
13   going to have to sell this because you've said you're
14   not going to perform.   Now they've come into court and
15   they've said, oh, we never said we weren't going to
16   perform.   We could have performed.   We may have
17   performed.   I didn't -- I never went to get a loan, but
18   I didn't have to get a loan because I had Mr. Shaw's
19   capability to give me cash.   They have all sorts of
20   excuses to say here in this courtroom that they sold it
21   early by selling it before September1st, 2009.
22                 But when you look back at what they were
23   selling back then, the only thing they were selling was
24   VSDH is insolvent.   Not one time did they say, hey, you
25   know what, just give us a little bit of time.    We may
                                                             146



1    buy it back. Now Mr. Shaw stood up on that stand and
2    tried to tell everybody that these folks were trying to
3    set him up.   I submit to you the only people that were
4    getting set up right here were the Grosses.   They
5    started planning their defense the day the market
6    crashed and they were going to have to buy this back.
7    Ever since then, they've been planning a way and
8    scheming a way to try to get out of paying what they
9    need to pay under this contract.   That's been the whole
10   thing.
11                 And you know what?   Truthfully, the only
12   people that can stop them are y'all. I can't.
13                 THE COURT: Four minutes.
14                 MR. ALDOUS: The judge can't, only you.
15   So the question here is -- on No. 2 is:   Who of those
16   above have you found to have failed to comply first?
17   And it has to be VSDH.   They failed to comply first.
18   Doug Hickok's then supposed to take up their slack for
19   the guaranty and he didn't.
20                 Question No. 3 is:   Was the failure of the
21   parties listed below excused?   And the answer for --
22   from my perspective, there is no excuse for VSDH or Doug
23   Hickok.   If you found that some other thing that the
24   Grosses did was a breach -- for instance, if you say,
25   you know what, you did breach by selling it early
                                                              147



1    because that's what the contract said.
2                   But you can also find that this -- that
3    they repudiated the agreement.   What that means is you
4    don't need to wait for them to not perform.   Once they
5    say to you, "I'm not going to do it," you are free to
6    act on their word.   And that's what it says right here.
7    You're instructed that a party repudiates an agreement
8    when the party indicates by theparty's words or actions
9    that he's not going to perform its obligations under the
10   agreement in the future, showing a fixed intention to
11   abandon, renounce, and refuse to perform the agreement.
12                  And then above that it says one party is
13   excused by the other party's prior repudiation.   So what
14   happens is once they tell -- I mean, and this is just
15   standard. This is what everybody knows.    Once that
16   somebody tells you, hey, I'm not going to do it, it's
17   like going out -- I'm going to go on a cruise ship.    You
18   get three weeks before you're about to leave on the
19   cruise ship.   They call you up and say the cruiseship
20   is -- the cruise line is bankrupt.   Well, should I go
21   get another one, or should I wait until I find out if
22   you've got a boat in the dock?   It makes no sense.
23                  Question No. 4 is: Did they commit fraud?
24   And this really goes to their continual and consistent
25   representations that they didn't guaranty anything when
                                                               148



1    for sure they did.    It's in the contract.   It says so
2    bigger than Dallas.    The answer is "yes" to both of
3    these.
4                    Question No. 5:   Did they have actual
5    awareness of what they were doing?     You heard Mr. Hickok
6    on the stand saying, yeah, I knew there was a guaranty
7    in there, but, hey, you know what, ifthey didn't make
8    me sign the right documents, that's not my problem.
9    Actual awareness. He worked for VSDH and he was
10   himself.
11                   The next question is the benefit of the
12   bargain damages.    And that's why I have the -- the thing
13   clipped over here.    If you remember, we went through
14   those; the difference in the price of the top two.       And
15   that would go in this blank here, and then the expenses
16   of the sale will go down below that.     The total for both
17   of those is 562,241 bucks.
18                   On Question No. 7, the same number is
19   going to end up going for these two.     The additional
20   number really goes to -- if you recall the additional
21   expenses that we had of $20,000 related to the
22   construction of the addition.     So that's -- 20,000 would
23   go over here.
24                   And then the last two questions relate to
25   whether or not you find by clear and convincing evidence
                                                                149



1    -- there should be a blank down here -- that the fraud
2    damaged them.    And you heard from both Ken and Betsy
3    that they wouldn't have entered into this deal without
4    the guarantees. So the answer, as far as I'm concerned,
5    is, "yes."
6                    And then finally the last one is:   What
7    sum of money, if any -- and, of course, this is all --
8    this is all up to your discretion.     But, you know, a lot
9    of times people think of it in terms of, well, I want to
10   make sure these folks don't do this again. And that's
11   what you need to operate on.    What will it do?    And you
12   can use all the character, the conduct, the nature of
13   the wrong, whether they've taken advantage or what.
14                   Now, ladies and gentlemen
                                             , my time is up.
15   I will get a chance to talk to you briefly again after
16   they go, but I appreciate your time and attention in
17   this matter.    Thank you.
18                   THE COURT: Mr. Shaw?
19                   MR. SHAW: Thank you, Your Honor.
20                   Ladies and gentlemen
                                        , Mr. Aldous said it
21   all when he said, let's see what the parties said before
22   they ever came to court.     Let's see what the parties
23   said before they ever came to court.    That's what he
24   says is important, is the most important.    And what they
25   said was set out here in this contract, Exhibit 3.     So,
                                                                150



1    what we know is if you want precisely to enforce a
2    contract, you have to precisely honor a contract from
3    the get go.
4                   We had the Grosses agreeing to do certain
5    things.    Mr. Aldous wants to make it like it's not
6    important, these things for the Grosses were not
7    important.    But that is not true.   That is not accurate.
8    We've been through this ad naseum.    We've been through
9    the start.    They were supposed to have escrowed $156,000
10   with the title company and enter into an escrow
11   agreement acceptable to the seller and buyer.     Never,
12   ever, never did.    We know that unequivocally.
13                  Exhibit 29, lawyer writes immediately July
14   3, 2007.   It says we represent the seller.    The buyer
15   agrees to escrow.   The contract further provides.     But
16   the buyer will obtain the seller's consent to the plans
17   and specifications.   That's what they agreed to
18   immediately, and that's what they breached immediately.
19   A lawyer tells them the buyer failed and refused to
20   enter into the escrow.   Seller reserves all of its
21   rights. No reply, no response, no nothing.
22                  Now, you came here this week and you did
23   your duty.    You were required to precisely perform your
24   obligations.   You did that admirably, and we appreciate
25   it.   You showed up on time.   You stayed the entire time.
                                                              151



1    You were attentive.   You did that because, as an
2    American citizen, you get your freedom because you have
3    the rights, as American citizens, to freedom; but you
4    have obligations.
5                   And one of them is what you fulfilled this
6    week. And if you don't precisely fulfill your
7    obligations, bad things can happen.    You can go to jail;
8    you can get tickets, worse. That's why there are
9    obligations.   That's why there's duties.    Look at these
10   other agreements that Mr. Aldous talks about.    There's
11   some writings.    And Mr. Aldous says, well, you know,
12   Shaw said there was an agreement to -- that we could
13   sell the house.   We could sell the house.   And Shaw said
14   there was an agreement.
15                  So after these people, the Grosses,
16   lawyered up, they write a letter.    And you tell me if
17   this letter makes any sense.   Per your offer of
18   yesterday to allow us to enter into a contract with a
19   prospective buyer, can you give us that agreement?
20   Well, if I had already given them the agreement, why are
21   they writing me for the agreement?    And who were these
22   people that are copied here?
23                  Cooper & Scully is a firm, a law firm.
24   They're not telling me.   They're trying to hide from the
25   fact that they've got these lawyers.   And they're
                                                               152



1    writing these letters and they're making these things up
2    so that one day they can be in front of you.
3                   And then let's look at this one, Exhibit
4    59.   They write a letter August 18.    And they tell you
5    at 7:24 p.m., and they tell you we're going to sell this
6    house tomorrow.   We're going to list -- we're going to
7    sign a contract tomorrow.   And we will assume you
8    approve unless you tell us in three business hours,
9    email three business hours by noon the next day that
10   that's what they're going to do.      And sure enough, they
11   did it.   And why?   We don't know.   You don't know. I
12   don't know.   We don't know.
13                  We know that Mrs. Gross said they were
14   forced to.    We don't know what that means.   If they
15   wanted you to know, they would have told you.
16                  MR. ALDOUS: Objection, Your Honor.
17   That's a comment on objections.
18                  THE COURT: Sustained.
19                  MR. SHAW: Why don't we know what the
20   force was?
21                  MR. ALDOUS: Objection, Your Honor.     That
22   violates a previous order of the Court.
23                  THE COURT: Sustained.
24                  MR. SHAW: The contract said that they
25   were going to wait until -- if you'll remember, they
                                                              153



1    were going to wait, and they were not going to -- they
2    were going to wait until September 1, 2009.    And why
3    not?   Why didn't they wait?   And then they said that
4    they were going to -- should the buyer enter into a
5    contract to sell the property, the buyback option will
6    immediately terminate.   They knew that.   It's in their
7    emails.   So they elected voluntarily to undertake that
8    action.   And why is this stuff important?   Why were the
9    plans and specs important? Why was all this important?
10                 Let's talk about something else for a
11   minute.   Tony Romo signed a contract with the Cowboys a
12   couple of years ago.   He had back problems, significant
13   back problems.   I don't know the terms of his contract.
14   But let's assume the terms were we're going to pay you
15   some money.   As part of this money for the contract, we
16   want to work out a plan with you for you to work out.
17   We want to know where you're going, when you're going,
18   and how many hours.
19                 Tony says, fine, and I'll agree to give
20   you that workout plan.   And Tony says -- and they say
21   you need back surgery.   And Tonysays, yeah.   And they
22   say we want you, Tony, to post $156,000 with us or an
23   escrow agreement, and we want to set out some plans and
24   specifications for your surgery.   We want to know what
25   doctor's doing your surgery, where, what is the surgery
                                                              154



1    you're getting.   And we want to have the right to
2    approve that surgery because we're investing a lot of
3    money in you, and we want to have that right.
4                  And, by the way, we want to give you your
5    money back.   If you fulfill your obligations, we give
6    your $156,000 on September 1, 2009.   But if you enter
7    into a contract with another team before that time, if
8    you don't honor the escrow agreement, if you don't honor
9    the plans and specifications, if you don't wait until
10   September 1, it's all over. Everything's out the door.
11                 And it's reasonable for the Cowboys to do
12   that because they've invested in him.   They want to know
13   is he going to a hack for his surgery; is he going to
14   the top-qualified doctor that -- they've got doctors on
15   staff that all get vetted and approved.    And that's what
16   this thing was about.
17                 The Grosses agreed to get the plans and
18   specifications.   The Grosses don't hire the top-notch
19   architect that designs --
20                 MR. ALDOUS: Objection, Your Honor.
21   That's outside the record.
22                 THE COURT: Sustained.
23                 MR. SHAW: The Grosses hire some fellow
24   out of Southlake to do it.   Why didn't they hire the
25   top-notch architect to do it?   Why not?   The Grosses
                                                             155



1    then don't do it like the original house is.   The
2    addition is not like the original house.
3                  MR. ALDOUS: Objection, Your Honor.
4    That's outside the record.
5                  THE COURT: Sustained.
6                  MR. SHAW: What we know is that yard is
7    important; that the Grosses' addition took up yard
8    space.   We know that.   And for buyers in this quality of
9    home, we know that that's a negative.   What we also know
10   is if it wasn't a negative, how could the house go from
11   a $2,800,000 house to a $2,400,000 house after some
12   $200,000 was added?   If everything was so beautiful and
13   everything was so copasetic, how could that house get
14   devalued like that in that short of period of time?
15                 Because what we know is, Defendant's
16   Exhibit 2, is that the house was appraised by an
17   appraiser in June of 2007.   And we know that the
18   appraisal of the home -- let me find it here -- showed
19   that the home in 2007, when the Grosses bought it and
20   before the Grosses performed one bit of construction,
21   was worth $2,855,000.    The day they bought it an
22   independent state certified appraiser determined that
23   was the value of that house.
24                 And now they want to say after they did
25   all these improvements, which were so great and were so
                                                                156



1    beautiful and matched the house, the thing decreased in
2    value more than $400,000.     Impossible, impossible if
3    those improvements were of that quality.    And why --
4    why, if this was the right price, they wanted to sell
5    the house?   Why not wait?    If it was the right price,
6    why would some buyer contract and close in six days?
7                    The only reason some buyer would contract
8    and close in six days is because that was a deal.     That
9    was a bargain because there's no other reason that
10   someone's going to do -- act like that.     I've never
11   heard of it.    I bet you've never heard of it, anybody
12   closing in six days on a home from start to finish.
13                   Why did the Grosses pay $180,000 to
14   Ms. Taylor --
15                   THE COURT: Three minutes.
16                   MR. SHAW: -- for that kind of work?      And
17   I have some other questions that I want to know about.
18   I want to know, where was Ms. Browning, the buyer?
19   Where was the buyer to say that she got fair market
20   value?   Why did she close?   We've talked about that, why
21   the buyer wanted to close, why Mrs. Gross -- why they
22   were forced to.    We talked about that.
23                   Where is the escrow agreement with this
24   bank if they had one?    Where's the draw request with
25   this bank if they had one?    Where's the evidence of why
                                                             157



1    the original home designer was not hired?
2                   Mr. Gross said this was for showcase
3    purposes.   Where's the photographs or the videos of
4    construction so he could show people what he did?      When
5    Mr. Hickok got there, Mr. Gross says there was nothing
6    hardly done; but, yet, Mr. -- that was November and Mr.
7    Gross had to be through by December 31.    Mrs. Gross
8    said, well, no, there were things done more than that.
9    But where are the photographs?   If Hickok was wrong,
10   where are the photographs on that?
11                  When Hickok was there, they say, well, you
12   know, he said it was great.    There was no sheetrock, no
13   floor, no walls, no windows, no doors, no lighting, no
14   paint, no roof, no nothing.    What could he say was so
15   great, terrific, or fantastic
                                 ? What would there be?
16   How could Mr. Gross complete the job on December 31 if
17   he was barely through in November?     Where are the
18   photographs?   Where's the testimony of Mr. Gross's
19   lawyer, Mr. Zimmerman?    Where's the testimony from
20   Buttemiller, the agent?   Where's the testimony from the
21   title company? Mr. Gross blames all these --
22                  MR. ALDOUS: Your Honor, that violates the
23   previous order of the Court.
24                  THE COURT: Sustained.
25                  You have one minute remaining, Mr. Shaw.
                                                             158



1                  MR. SHAW: Thank you, Your Honor.
2                  What we know is that you've got to
3    precisely honor if you're going to precisely enforce.
4    There was no reason otherwise in this case, and the
5    Grosses are not entitled to recover.    Thank you.
6                  THE COURT: Mr. Chaiken?
7                  MR. CHAIKEN: Thank you, Your Honor.
8                  Ladies and gentlemen
                                      , I take very
9    seriously what I do here in the courtroom, especially
10   when a client of mine, a friend of mine, has been sued
11   in a manner that I think is inappropriate, in a manner
12   that I think is unjust, and more importantly when there
13   is --
14                 MR. ALDOUS: Your Honor, I'm going to
15   object to personal opinion statements.
16                 THE COURT: Sustained.
17                 MR. CHAIKEN: -- and when a client of mine
18   is accused of something as serious as fraud.   Fraud is a
19   serious thing.   And so when I'm here, I may get a little
20   excited in trying to passionately defend my client. And
21   I'm going to show you why Doug Hickok did not do
22   anything wrong that justifies finding him liable in this
23   case from the claims against him.
24                 Let's begin with the simple and obvious
25   thing.   Mr. Gross asked for -- I'm sorry -- I'll do it
                                                               159



1    this way -- through his real estate agent, not himself,
2    a guaranty.   And it looks just like that, and you've
3    seen it a million times.    And he said -- actually,
4    Mrs. Gross said, well, we wouldn't have done this deal
5    without it.   Okay. We wouldn't have done the deal
6    without that guaranty right there, that language right
7    there.   And, you know, we are harmed because, you know,
8    we didn't get -- if we didn't get the guaranty. If we
9    didn't get the guaranty, we were harmed.     Okay.   We were
10   misled, all these kinds of things.
11                   Well, here's what we know.   We know we got
12   the guaranty the same guaranty that they asked for
13   before the contract was signed when Mr. Buttemiller
14   asked for it.    They got it in the contract.   It's right
15   there, exactly what they asked for.    So what they said
16   they needed and that they would be harmed if they didn't
17   have, they got it. So, no harm.
18                   Now, the evidence in this case is that
19   Mr. Hickok was asked about a guaranty, exactly that
20   guaranty.   But it required two people's guarantees, his
21   and Van Shaw's. So Mr. Hickok said, no, no, no.      I
22   can't promise you that I'm going to do this guaranty
23   that you're asking for.    I've got to go ask Mr. Shaw,
24   and he did.   Okay.
25                   And you know Mr. Hickok's come in here and
                                                              160



1    he has asked the Court to answer a question, which is:
2    Is this form a guaranty, this piece of paper here?     Is
3    it sufficient to constitute a guaranty?     Okay. And,
4    yeah, after the transaction, there was a question about
5    whether it was.   And Doug wasn't the only person who had
6    a question about whether that document was a guaranty,
7    okay, a proper form of guaranty.
8                  The gentleman right over there, Mr. Gross,
9    sat up here and testified "I expected that all the
10   necessary documentation was going to be provided at the
11   title company.    And there was a problem with the
12   documentation with regard to the guarantees." He stood
13   right up there and told you.   That was the last thing he
14   testified to, that there was a problem with the
15   documents.   It didn't get done right.   So that wasn't
16   the only person who had a question about whether or not
17   there was actually a legal guaranty.     So did Mr. Gross.
18                 And in the end, Mr. Gross still got --
19   Mrs. Gross got exactly what they asked for, which was
20   the exact guaranty that they requested.    And you know
21   what?   The only thing Mr. Hickok said about the whole
22   guaranty issue is:   I've got to make sure that the
23   guaranty is in a proper document, okay, a document to be
24   signed in the future, a form of guaranty just like
25   Mr. Gross did.
                                                                 161



1                    Is there any evidence in this record, any
2    evidence shown to you that when Doug Hickok said, "Yeah,
3    we'll do the guaranty.    I'll go talk to Mr. Shaw,"
4    et cetera, there wasnever an intention to perform the
5    guaranty back then when he said he would do it?      No
6    evidence whatsoever.    To the contrary, okay, Doug was
7    trying to get the guaranty.     He signed the guaranty in
8    the document.
9                    And, ultimately, when you're asked, was he
10   aware of false statements that he made way back when, a
11   misrepresentationor a false promise, the answer is
12   clearly, "no."    He couldn't be aware of it.    Do you want
13   to know why?    He didn't say anything false.    What he
14   said was true.    I'll get the guaranty.   I've got to go
15   get the right form of document, okay.      I'll do it, sign
16   the document.    When there was a question about whether
17   or not that document is a guaranty, Judge said it's a
18   guaranty. All right.     They got the guaranty.    They got
19   what they wanted.    No harm.
20                   Well, here's something else.    You know,
21   the Grosses talk about how everybody should have
22   complied with the contract and, you know, based upon
23   alleged phone calls and meetings that have never been
24   documented and so on and so forth, you know, they had an
25   excuse for why they went off and sold the house.      Okay.
                                                                162



1    And they sold it before the buyback date, September 1st
2    of 2009.
3                  But you know what was interesting? Roxann
4    Taylor sat up here yesterday, the real estate agent, and
5    you heard her say that the Grosses toldher that they
6    needed to sell the house. They needed to sell the
7    house.   But you know what she also testified to? She
8    said she had no idea that that need had anything
9    whatsoever to do with an alleged failure or refusal by
10   VSDH or anybody else to buy back the property.
11                 So they come here and they say, oh, we
12   sold the property early because of all the bad things
13   VSDH and Doug Hickok did.   But when they were telling
14   the real estate agent why they wanted to sell the house,
15   they didn't make any mention of it, none whatsoever,
16   none whatsoever.   And then when they asked the real
17   estate agent, who confirmed they were very anxious to
18   sell the house, to help them out -- and they didn't have
19   to, by the way.    They didn't need a real estate agent.
20   They didn't need to incur commission and all that costs
21   related to hiring a real estate agent -- they didn't
22   even accept her advice on what to sell the property for.
23                 You know, she said, I could have gotten
24   them more money.   I wanted to get them more money.    I
25   sold a house down the street, you know, for more money.
                                                              163



1    It was, you know, a different size house, but more per
2    foot.   You know, I could have gotten them more money.
3    But, no, no, they just -- they were anxious.   They
4    wanted to sell.
5                  But for no reason related to what they're
6    telling you the reason was -- well, while we're on the
7    topic of, you know, supposed telephone conversations and
8    meetings that were not documented before the contract
9    and after -- you know, the contract tells us very
10   clearly, the contract -- the same contract that they
11   wanted to enforce against everybody here says there are
12   no understandings and no agreements, anything outside of
13   the agreement itself.    It's got to be right there.    It's
14   got to be in writing.    It can't be changed except by the
15   written agreement. It's all right here in the document.
16                 The Grosses come in and say, no, no, no,
17   we want to rely on stuff.   That's not documented
18   anyplace.   Notices have to be in writing.   Deliveries
19   have to be in writing, you know.    They don'twant to
20   rely on any of that.
21                 Now, you have seen the addendum in the
22   contract on a bunch of occasions.   And all you need to
23   know, and when answering questions about whether Doug
24   Hickok did anything wrong, is the buyback date was on
25   September 1st of 2009.   If the -- if the Grosses timely
                                                              164



1    exercised the buyback option, they may not sell or
2    convey any right and title to the property to anybody
3    else until there's been a breach of the buyer or the
4    seller of its obligation to re-purchase.
5                    Well, a breach of the obligation to
6    re-purchase means that VSDH didn't buy the property back
7    by September 1st or on September 1st to designate a
8    buyback date.    And we know that because, well, there was
9    an option to do it earlier.    You have to have both
10   parties agree to do it earlier.    But as the Grosses
11   admitted, everybody knows there was no agreement to do
12   it earlier.
13                   And the other thing is, you know, when
14   you're talking about complying with contracts, you've
15   got this language right down here.    And, you know, it
16   says, "Should the Grosses enter into a contract to sell
17   the property, the buyback option will immediately
18   terminate and will no longer be available to the buyer."
19                   So, yet, they come in here and they're
20   asking you, well, we sold the propertyearly.     We
21   entered into a contract with Mrs. Browning to sell the
22   property before the buyback date.    But forget about what
23   the contract says.    That buyback option shouldn't have
24   terminated even though the contract says it should have.
25                   Well, again, if you're going to come into
                                                                165



1    court and enforce a contract and sue on a contract,
2    you've got to comply with it.    And that contract right
3    there says that the buyback option will immediately
4    terminate and will no longer be available to the buyer.
5                    Now I want to talk about the guaranty
6    language in the contract.    Okay.   It's really simple,
7    okay. What it says is, is that the guarantors -- and
8    there only ended up being one of them, even though the
9    guaranty talks about both of them -- shall be personally
10   responsible to perform the obligations of VSDH under the
11   buyback option, okay, in the event VSDH fails to perform
12   fully under the terms of the buyback option.
13                   So let's just assume that Doug Hickok got
14   this guaranty out there, and it was, okay, according to
15   the judge, and September 1st rolls around. Okay.
16   September 1st rolls around.    And let's assume that the
17   buyback option hasn't terminatedalready as a result of
18   the early sale and the early contract by the Grosses to
19   Ms. Browning.    How is Doug Hickok going to perform the
20   obligations of VSDH under the buyback option, which is
21   to buy back the property?    He couldn't.
22                   You heard Mrs. Gross sit up on the stand
23   here and say, well, nobody could have bought it on 9/1
24   of '09 because we didn't own it anymore.    So there's no
25   way Doug Hickok could have -- could have bought the
                                                              166



1    property when his only liability to do so, if ever,
2    would have been on or after September 1st of '09 if VSDH
3    didn't do it.    That assumes VSDH was required to.    And
4    if VSDH was not required to, then neither was
5    Mr. Hickok, ever.
6                    And that brings me to the last point about
7    the contract that I want to talk to you about.    The
8    contract, the one that was signed by Mr. and Mrs. Gross,
9    Mr. and Mrs. Gross, the same people come into this
10   courtroom and who sued Mr. Hickok seeking damages from
11   him -- they're asking for damages, money.    They want
12   money from him.    They don't want performance of the
13   buyback obligation, which is what he agreed to do if
14   VSDH didn't do it.    They want money.
15                   But what the contract said when they
16   signed it was that their sole and exclusive remedy in
17   the event VSDH, the seller, was in default -- meaning
18   didn't buy back the property on the buyback date -- was
19   to sue -- terminate the contract -- excuse me -- or,
20   right here, enforce specific performance.    See that
21   right there?    Enforce specific performance.
22                   And what that means is you can come to
23   Court and you can say, Judge, make them perform.      Make
24   them buy back the property. But the Grosses didn't do
25   that.   They didn't avail themselves of that remedy.
                                                            167



1    They sold the property off to somebody else before that
2    obligation ever came due, if it ever came due.   And
3    instead, they come in here and they say, well, we're
4    suing for money damages.
5                 THE COURT: Two minutes.
6                 MR. CHAIKEN: And you know when they --
7    when they look at their -- at the contract, the contract
8    said, yeah, you know, this addendum, the seller will
9    reinstate that remedy, you know, about seeking other
10   relief, like damages.   Mr. Hickok didn't.   The Grosses
11   say, well, you know, we're coming in here anyway.
12   Forget about what the contract says.   We're going to sue
13   Mr. Hickok for damages anyway.
14                When you answer the questions of the Court
15   in the charge that's being presented to you and you're
16   asked whether Mr. Hickok failed to comply with the
17   contract, the answer must be, "no," because he was never
18   given the opportunity to do so and because the Grosses
19   couldn't sell him the property if he ever had an
20   obligation to buy it.   All right.
21                And if VSDH's defaults, if any, were
22   excused or their failures to comply were excused, so
23   were Mr. Hickok's.   And, you know, Mr. Aldous stands up
24   there and says, you know, when they said they wouldn't
25   perform the guaranty, you know that's fraud.
                                                             168



1                  When you look at the instructions of the
2    Court and the definitions of fraud in this document and
3    you look at all that, you will see that in order for
4    there to have been any fraud, Mr. Hickok would had to
5    have said something that wasn't true before the contract
6    was signed, okay, indicating that he never had any
7    intention to -- to guaranty the contract.    And you
8    already know that that isn't what happened.   So when
9    you're asked whether there was fraud, the answer to that
10   question is clearly a big, no, no, in red.
11                 And when you're asked whether there were
12   any damages for fraud, the answer is, "no."   You know
13   why?   Because Mr. and Mrs. Gross said the only way they
14   would have been harmed with regard to the guaranty is if
15   there wasn't one, because they wouldn't have entered
16   into the transaction. But because there was one, they
17   couldn't have suffered any harm.
18                 Ladies and gentlemen
                                      , I really do thank
19   you for your time and your attention, and I look forward
20   to seeing you deliberate and seeing the results of your
21   deliberations.
22                 THE COURT: Mr. Aldous?
23                 MR. ALDOUS: Thank you, Your Honor.
24                 When I started out, I said, you know,
25   deceive, delay, deny; and it's continued in this
                                                                  169



1    courtroom.   It's amazing to me.    Mr. Shaw stood up there
2    with a list of things I wish I knew.        I wish I knew.    We
3    don't know this.      We don't know that.   We didn't get
4    this.   You saw on the witness stand when he secretly
5    went out and sued the Grosses, but didn't tell them.
6    That was July of 2009, almost six years ago.       For six
7    years, he could have answered every one of those
8    questions and he didn't.
9                   How many times did they go to that house
10   to even look at the things to say, you know what, this
11   is crappy work?    Not one time.   Instead, they brought
12   the original builder in here, who hadn't been in the
13   house since 2007, and said, hey, let me ask you these
14   questions.   Did they go out and take any photographs?
15   Did that even matter to them?      No.
16                  Why?    Because they would rather come in
17   here and raise innuendos and raise possibilities because
18   they know the truth.     The truth is it's good.    The truth
19   is that there was an economy that tanked, and that's
20   why.    They don't want thetruth.    They wanted innuendo.
21   They want to try to sell you a bag of goods.       That's
22   what they want.
23                  You know, they sit there and they say --
24   and it just kills me.     They say his -- the Grosses' real
25   estate agent is the one who did this and that.       Well,
                                                             170



1    you know what, let's take a look at the actual contract.
2    You see where it says Vaquero Residential Realty, the
3    listing broker, that means that they worked for VSDH.
4    They're acting like, oh, that was our broker and
5    everything he did was on us.   Well, it was their broker.
6    They say that -- that if you want to precisely enforce a
7    contract, you must precisely perform.
8                  Let me ask -- let me translate that.     If
9    you've got a lawyer who's determined to get out of a
10   contract and he's working with his partners and then
11   they get another lawyer in here, they can raise as many
12   objections to that contract as could be raised.    And if
13   -- they will sell it as hard as they can sell it, but
14   you have to buy it in order for it to work because
15   that's what it is.   It is a -- it is a sell job and
16   that's it.
17                 There's not one bit -- they said, oh, we
18   don't even know what the -- what the fair market value
19   was.   Well, that's right, because the fair market value
20   doesn't have anything to do with it.    The question is:
21   Was it reasonable for Betsy and Ken to hire a real
22   estate agent to sell the house?
23                 Well, it was sure reasonable when they
24   wanted to sell the house.   They had Vaquero Realty as
25   their agent. Well, sure, it's reasonable.    Was it
                                                              171



1    reasonable to pay her that?    You know what?   People
2    charge money for what they do, and she charged less than
3    what she normally charges. Yeah, it was reasonable.
4    All these other charges, not one of them that they
5    mentioned, other than the real estate fee.      And all they
6    did was argue innuendo.    Not one time did they come out
7    here and show you with any evidence that that was
8    unreasonable.
9                    Mr. Chaiken was up here telling you, you
10   know, there's no fraud here.    There's no fraud.   They
11   got exactly what they asked for in the guaranty. Well,
12   you know what, we didn't have that until 30 minutes ago
13   when the judge made the ruling.    And you know that
14   because during this trial, Mr. Chaiken continually is
15   asking Mr. Hickok, "Isn't it true you signed this in
16   your personal capacity? You didn't mean to."
17                   And the judge said that that's not good.
18   Legally, you're stuck, even though you tried to deceive
19   us, even though you said on the witness stand, "Hey,
20   it's not my problem if they don't give you the right
21   documents."
22                   I'm telling you, they're selling you a
23   bill of goods, and you have to buy it in order for it to
24   work.   I don't know -- it's got to be difficult because,
25   you know, a committed lawyer and his partners can really
                                                              172



1    raise some problems with a contract.     And if you give
2    them three years like they had to make up their
3    defenses, you know it's going to happen.    And that's
4    what you got here.    You've got a bunch of made-up
5    defenses in an effort to avoid a responsibility that
6    they had.
7                   And why was that?   Well, let me tell you
8    something.   The reason that escrow agreement didn't
9    really mean anything to them is because, you see this on
10   Exhibit 98, which is the settlement statement from them
11   -- do you see that money, Gross amount due from the
12   seller of $2,695,017?   They didn't get that money unless
13   they closed.   And I'll tell you what happened.
14                  I don't want to guaranty this.   That's
15   okay, man.   Just sign it and we'll get out of it.
16   That's what it was.   You don't worry about that buyback.
17   If we've got to do that to get rid of these carrying
18   costs on all this money that we have -- remember, we
19   have this loan of a million nine.     We need to get rid of
20   that.    We'll worry about this other stuff later.
21                  If we do it right and we don't respond and
22   we pretend -- we just say, "Be quiet.     Don't do
23   anything," maybe they'll screw up.    That's what
24   happened.    They wanted the money.   They've got the
25   money.   Now they're raising a bunch of defenses, and
                                                              173



1    it's because they're saying this is a final stage of
2    their defense, the final stage of their made-up idea.
3                  It's going to be I -- I've now played it
4    out over five-and-a-half years.    What we need to do, we
5    just be quiet when they ask us questions and we'll just
6    say they did it.   When we say, hey, we're going to have
7    to sell this because of financial conditions, whatever,
8    because it's a good offer -- which is the only evidence
9    you heard from Roxann Taylor; it was a good offer
10   because it was cash.   And during that period of time,
11   nobody was getting loans.   That's what she said.
12                 Now Mr. Shaw stood up here and said, well,
13   you know, that thing -- that house went down in value.
14   It must have been the addition, because Lord knows they
15   must have devalued the property.     He said that with no
16   evidence.   Did anybody come in here and say that it was
17   devalued because of that?
18                 To the contrary. But like I said, this is
19   just the last stage in their defense and their effort to
20   avoid their promises and their responsibilities.    It's
21   the last stage. And they said -- and you know what?
22   They're rolling the dice with you.    They're saying I
23   hope you pick up -- I hope you -- just one little thing,
24   just let us off a little bit, and it'll be all worth it.
25   That's what they're saying.
                                                              174



1                   If you don't do 100 percent of justice,
2    you've helped them. You've helped them avoid their
3    responsibilities. If you don't award every bit of that,
4    $1 off, and they say it was worth it.    One dollar off
5    and they have -- they won, because that has been the
6    plan all along.    The plan is just give them money, close
7    it, move on.   We'll take the profit.   We'll move on.
8                   Of course, I get worked up about this
9    stuff too, and I appreciate y'all listening and hearing
10   us out.   But just remember that when you step back
11   there, you're the only ones who can write in the answers
12   to these questions.   And it's got to be based upon what
13   you think the evidence is, not what I think, not what
14   they think.    But don't be -- don't be misled by fancy
15   lawyer arguments about the contract says this or that.
16   Do what's right.
17                  Thank you, Your Honor.
18                  THE COURT: Ladies and gentlemen
                                                  , when you
19   go into the jury room to answer the questions, the first
20   thing you will need to do is to choose a presiding
21   juror.    The presiding juror has these duties: A, have
22   the complete charge read aloud if it will be helpful to
23   your deliberations; B, preside over your deliberations,
24   meaning manage the discussions and see that you follow
25   these instructions; C, give written questions or
                                                             175



1    comments to the bailiff who will give them to the judge;
2    D, write down the answers you agree on; E, get the
3    signatures for the verdict certificate; and, F, notify
4    the bailiff that you have reacheda verdict.
5                 Do you understand the duties of the
6    presiding juror? If you do not, please tell me so now.
7    I assume that you do based on the noddings of your
8    heads.
9                 Instructions for signing the verdict:
10   Number 1, unless otherwise instructed, you may answer
11   the questions on a vote of five jurors. The same five
12   jurors must agree on every answer in the charge.     This
13   means you may not have one group of five jurors agree on
14   one answer and a different group of five jurors agree on
15   another answer.
16                Two:    If five jurors agree on every
17   answer, those five jurors sign the verdict.   If all six
18   of you agree on every answer, you are unanimous and only
19   the preceding juror signs the verdict.
20                Number 3:    All jurors should deliberate on
21   every question.   You may end up with all six of you
22   agreeing on some answers while only five of you agree on
23   other answers.    But when you sign the verdict, only
24   those five who agree on every answer will sign the
25   verdict.
                                                            176



1                  Does everyone understand these questions?
2    If not, please let me know now.
3                  All right.   Ladies and gentlemen of the
4    jury, at this time, all of the evidence, the charge of
5    the Court, and the closing argument of counsel are
6    before you.   I'm going to hand to the bailiff the charge
7    of the Court applicable to the law in this case along
8    with a verdict form.   The bailiff will lay this on the
9    table in the jury room.    Once all members of your jury
10   are present and assembled in thejury room, the case is
11   formally submitted to you and you may begin your
12   deliberations.
13                 All rise.    Please step down from the jury
14   box and accompany the bailiff into the jury room.
15                 (Jury retires to the jury room)
16                 THE COURT: Anything further from the
17   plaintiff?
18                 MR. ALDOUS: Just a question, Your Honor,
19   but nothing further with regard to trial stuff.
20                 THE COURT: From defendant, VSDH?
21                 MR. SHAW: Nothing, Your Honor.
22                 THE COURT: From defendant, Hickok?
23                 MR. CHAIKEN: Not at this time, Your
24   Honor.
25                 THE COURT: All right.    We stand in recess
                                                            177



1    until the jury returns.
2                    (Recess taken)
3                    (Alternate juror was released)
4                    THE COURT: All rise.
5                    (Jury enters the courtroom)
6                    THE COURT: All right.   Ladies and
7    gentlemen of the jury
                         , I understand that you would like
8    to go home now and come back tomorrow morning at 9:00
9    a.m. You're certainly free to do that.      I just want to
10   remind you that during this overnight recess, you're
11   under the same restrictions that you've been previously
12   given.     You're not to discuss this case among yourselves
13   or with anyone else until such time as you have
14   completed your deliberations in this case and have been
15   discharged as jurors.
16                   You're free to go.   We'll see you tomorrow
17   morning.
18                   (Proceedings concluded for the day)
19
20
21
22
23
24
25
                                                         178



1    STATE OF TEXAS         )
2    COUNTY OF DALLAS       )
3            I, Cathye Moreno, Official Court Reporter in
4    and for the County Court of Dallas County, Texas, County
5    Court At Law Number One, State of Texas, do hereby
6    certify that to the best of my ability the above and
7    foregoing contains a true and correct transcription of
8    all portions of evidence and proceedings requested in
9    writing to be included in the Reporter's Record, in the
10   above-styled and -numbered cause, all of which occurred
11   in open court or in chambers and were reported by me.
12           I further certify that this Reporter's Record
13   of the proceedings truly and correctly reflects the
14   exhibits, if any, admitted by the respective parties.
15           WITNESS MY OFFICIAL HAND this the 24th of
16   October, 2015.
17                      /s/ Cathye G. Moreno
18                      Cathye G. Moreno, Texas CSR #6076
                        Expiration Date: 12/31/16
19                      Official Court Reporter
                        County Court at Law No. 1
20                      600 Commerce Street, Suite 550
                        Dallas, Texas 75202
21                       cathyemoreno@sbcglobal.
                                              net
                        (214)653-7496
22
23
24
25
TAB 29
                                                              1



1                         REPORTER'S RECORD
                       VOLUME 7 OF 10 VOLUMES
2                      CAUSE NO. CC-09-05232-A

3    VSDH VAQUERO VENTURE, LTD.       )IN THE COUNTY COURT
                                      )
4      Plaintiff/Counter-Defendant, )
                                      )
5    V.                               )
                                      )
6    KEN GROSS and BETSY GROSS        )AT LAW NO. 1
                                      )
7      Defendants/Counter-Plaintiffs, )
                                      )
8    V.                               )
                                      )
9    EVAN L. SHAW and DOUGLAS M.      )
     HICKOK                           )
10                                    )
       Intervenors/Counter-Defendants,)DALLAS COUNTY, TEXAS
11
12
13   -------------------------------------------------------

14                       TRIAL ON THE MERITS
15   -------------------------------------------------------
16
17              On the 19th day of June 2015, the following

18   proceedings came on tobe heard within the presence of

19   a jury in the above-entitled and -numbered cause before
20   the Honorable D'METRIA BENSON
                                 , judge presiding, held in
21   Dallas, Dallas County, Texas.
22              Proceedings reported by computerized stenotype
23   machine.    Reporter's Record produced by computer-aided
24   transcription.
25
                                                  2



1                        APPEARANCES:
2    MR. STEVEN E. ALDOUS
     SBN 00982100
3    Forshey Prostok, LLP
     500 Crescent Court
4    Suite 240
     Dallas, Texas 75201
5    (214)716-2100
     ATTORNEY FOR DEFENDANTS/COUNTER-PLAINTIFFS
6    KEN GROSS and BETSY GROSS
7       - AND -

8    MR. KENNETH B. CHAIKEN
     SBN 04057800
9    Chaiken & Chaiken, PC
     Legacy Town Center III
10   5801 Tennyson Parkway
     Suite 440
11   Plano, TX 75024
     (214)265-0250
12   ATTORNEY FOR INTERVENOR/COUNTER-DEFENDANT
     DOUGLAS M. HICKOK
13
        - AND -
14
     MR. EVAN LANE (VAN) SHAW
15   SBN 18140500
     Law Offices of Van Shaw
16   2723 Fairmount Street
     Dallas, Texas 75201
17   (214) 754-7110
     ATTORNEY FOR PLAINTIFF/COUNTER-DEFENDANT
18   VSDH VAQUERO VENTURE, LTD;
     INTERVENOR, VAN SHAW; and
19   THIRD-PARTY DEFENDANTS
     VSDH VAQUERO HOMES, INC. AND
20   VSDH HOMES, INC.
21
22
23
24
25
                                                           3



1                            INDEX

2    JUNE 19, 2015                               PAGE   VOL.
3    PROCEEDINGS..............................     4      7
4    VERDICT OF THE JURY......
                             ...............      4       7
5    END OF PROCEEDINGS.......................     6      7
6    REPORTER'S CERTIFICATE...................    7       7

7
                      EXHIBIT INDEX (NONE)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
                                                             4



1                          PROCEEDINGS
2                         June 19, 2015
3                 THE COURT: All right.     Bring in the jury.
4                 (Jury enters the courtroom)
5                 THE COURT: You may be seated.
6                 Would the presiding juror please stand?
7                 Is this your unanimous verdict?
8                 PRESIDING JUROR
                                :      Yes, ma'am, it is.
9                 THE COURT: You may be seated
                                             .
10                I will now read the verdict into the
11   record.
12                Question No. 1:   Did any of the following
13   parties fail to comply with the new home contract?
14                VSDH Vaquero, Ltd: Answer, no.
15                Doug Hickok:   Answer, no.
16                Ken Gross, Betsy Gross:    Answer, yes.
17                Question No. 2:   Who of those whom you
18   have found to have complied -- failed to comply with the
19   contract failed to comply with the contract first?
20                VSDH Vaquero Venture, Ltd: No.
21                Doug Hickok:   No.
22                Ken Gross and Betsy Gross:    Yes.
23                Question No. 3:   Was the failure of any of
24   the parties listed below excused?
25                VSDH Vaquero Venture, Ltd: Yes.
                                                                5



1                 Doug Hickok:   Yes.
2                 Ken Gross and Betsy Gross:    No.
3                 Question No. 4:     Did any of those listed
4    below commit fraud against Ken and Betsy Gross with
5    regard to the guarantee in the new home contract?
6    Answer "yes" or "no" for each.
7                 VSDH Vaquero Venture, Ltd: No.
8                 Doug Hickok:   No.
9                 Question No. 5 was not answered because it
10   was predicated upon a "yes" answer to Question No. 4.
11                Question No. 6 was not answered because it
12   was predicated on "yes" answers to Questions No. 1 and
13   No. 2.
14                Question No. 7 was not answered because it
15   was predicated on a "yes" answer to Question No. 4.
16                Question No. 5 was not answered because it
17   was predicated upon a "yes" answer -- excuse me.
18   Question No. 8 was not answered because it was
19   predicated upon a "yes" answer to Question No. 5.
20                Question No. 9 was not answered because it
21   was predicated upon a "yes" answer to Question No. 5.
22                Anything further from the plaintiff?
23                MR. ALDOUS: No, Your Honor.
24                THE COURT: From defendant, VSDH?
25                MR. SHAW: No, Your Honor.
                                                                 6



1                   THE COURT: From defendant, Hickok?
2                   MR. CHAIKEN: No, Your Honor.
3                   THE COURT: All right.   Ladies and
4    gentlemen of the jury
                         , the Court has previously
5    instructed you thatyou should observe strict secrecy
6    during the trial andduring your deliberation.     I am now
7    about to discharge you.    And after you're discharged,
8    you will be released from your secrecy. You will then
9    be free to discuss the case and your deliberations with
10   anyone; however, you are also free to decline to discuss
11   the case and your deliberations if you wish.
12                  After you are discharged, it is lawful for
13   the attorneys or other persons to question you to
14   determine whether any of the standards for jury conduct
15   that I have given you during the course of this trial
16   were violated and to ask you to give an affidavit to
17   that effect.   You are free to discuss or not to discuss
18   these matters and to give or not to give an affidavit.
19                  Thank you for your service.   You are free
20   to go.
21                  All rise.   The jury is excused.
22                  (Proceedings concluded)
23
24
25
                                                            7



1    STATE OF TEXAS         )
2    COUNTY OF DALLAS       )
3            I, Cathye Moreno, Official Court Reporter in
4    and for the County Court of Dallas County, Texas, County
5    Court At Law Number One, State of Texas, do hereby
6    certify that to the best of my ability the above and
7    foregoing contains a true and correct transcription of
8    all portions of evidence and proceedings requested in
9    writing to be included in the Reporter's Record, in the
10   above-styled and -numbered cause, all of which occurred
11   in open court or in chambers and were reported by me.
12           I further certify that this Reporter's Record
13   of the proceedings truly and correctly reflects the
14   exhibits, if any, admitted by the respective parties.
15           WITNESS MY OFFICIAL HAND this the 24th of
16   October, 2015.
17                      /s/ Cathye G. Moreno
18                      Cathye G. Moreno, Texas CSR #6076
                        Expiration Date: 12/31/16
19                      Official Court Reporter
                        County Court at Law No. 1
20                      600 Commerce Street, Suite 550
                        Dallas, Texas 75202
21                       cathyemoreno@sbcglobal.
                                              net
                        (214)653-7496
22
23
24
25
