in Re Carlton Sewell

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

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

In re CARLTON SEWELL, Relator Original Proceeding from the County Court at Law of Hopkins County, Texas

PETITION FOR WRIT OF MANDAMUS

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

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

ATTORNEY FOR CONTESTANTS

Table of Contents INDEX OF AUTHORITIES .............................................................................................. 2 STATEMENT OF THE CASE ........................................................................................... 3 STATEMENT OF FACTS .................................................................................................. 3 ARGUMENT AND AUTHORITIES ................................................................................. 3 PRAYER ............................................................................................................................ l1 CERTIFICATE OF SERVICE........... .............................................................. .................. 12 Index ofAuthorities CASES PAGE Berlanga v. Berlanga, 2012 WL 252497 {Tex. App.- Beaumont 2012, no pet.) ....................... 5 Boulet v. State, 189 S.W.3d 833 {Tex. App. -Houston [1 51 Dist.] 2006, no pet.) ....................... II Hewitt v. Roberts, 2013 WL 398940 {Tex.App.-Corpus Christi 2013, no pet.) ................. ......... 3 Johnson v. Edmonds, 7 12 S.W.2d 651 {Tex.App.-Fort Worth 1986, no writ) ............................. 5 Jones v. Citibank (South Dakota), NA., 235 S.W.3d 333 (Tex.App. - Fort Worth 2007) ......... .4 Marino v. King 355 S.W.3d 629 (Tex.2011) .......................... ...................................................... 3, 9

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

Steffan v. Steffan, 29 S.W.3d 627 {Tex. App.- Houston [14th Dist.] 2000, pet. denied) ............. .4, 5 Stelly v. Papania, 927 S. W.2d 620 {Tex.l996) ................... ......................................................... 6 Vann v. Gaines, 2007 WL 865870, *² (Tex.App.-Fort Worth 2007, no pet.) ............................. .4, 5 Webb v. Ray, 944 S.W.2d 458 , 461 (Tex.App.-Houston [14th Dist.] 1997, no writ) ............. ..... .4, 6 Wheeler v. Green, 157 S. W.3d 439 (Tex.2005) ........................................................................... 5, 6 *3

RULES

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

Statement of the Case

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

Statement of Facts

Real Parties in Interest accept Carlton Sewell's Statement of Facts as accurate except as to the discovery period. The parties, by their conduct and tacit agreement, perpetuated the discovery period by conducting discovery after the date of the Requests for Admission: i.e., Requests for Disclosure; Interrogatories; Requests For Production; and, additional depositions. (Carlton Sewell's Mandamus Record, Vol. 1, Tab 21 and 23).

Arguments and Authorities Carlton Sewell Fails to Establish "Good Cause"

A person moving for withdrawal of deemed admissions bears the burden of establishing 1) good cause; and, 2) the absence of undue prejudice. Hewitt v. Roberts, 2013 WL 398940, *2 (Tex.App.-Corpus Christi 20 13, no pet.).

Good cause exists where the failure to respond to the request for admissions was the result of an accident or mistake and was not intentional or the result of conscious indifference. Marino v. King 355 S.W.3d 629, 633 (Tex.2011).

Carlton Sewell's stark failure in this case is his failure to establish "good cause." Carlton Sewell appears to rely exclusively on the fact that he was a pro se litigant as being, ipso facto, sufficient to establish "good cause." His status as a pro se litigant is not, ipso facto , sufficient to establish "good cause."

Two cases from the Fort Worth Court of Appeals make it plain that "pro se" status is not sufficient to establish "good cause."

In the case Vann v. Gaines, 2007 WL 865870, *2 (Tex.App.-Fort Worth 2007, no pet.) the court noted that, unlike the appellant in Wheeler, the appellant in Gaines had not moved to withdraw the admissions, but went on to state that,

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

Again, in Jones v. Citibank (South Dakota), N.A., 235 S.W.3d 333 (Tex.App. - Fort Worth 2007), the Fort Worth Court of Appeals stated:

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

It is Carlton Sewell's burden to establish "good cause." Webb v. Ray, 944 S.W.2d 458, 461 (Tex.App.-Houston [14th Dist.] 1997, no writ). In the instant case, Carlton Sewell fails to establish that his failure to respond was due to accident or mistake and was not the result of conscious indifference.

First of all, on the face of the Admissions Request, Carlton Sewell was notified of the consequences of a fai lure to answer. On the face of the Contestants' First Request For Admissions it states, "A failure to specifically answer any request or an evasive answer to any request will be taken as an admission of truth of such request." If Carlton Sewell read this admonition and then decided not to

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

denied) is remarkably similar to the instant case. In Steffan, husband was acting pro se when he received a Request For Admissions. Husband did not respond to the request.

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

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

Carlton Sewell can find no footing in the case of Wheeler v. Green, 157 S.W.3d 439, 443 (Tex.2005)(per curiam). In that case, a pro se litigant tried to comply with the rules relating to requests for admissions, but because she was unfamiliar with the mail box rule, she served her responses 2 days late. There is clearly nothing in that case showing any conscious indifference. In Wheeler, the result would likely have been different if the mailbox rule had been stated on the face of the Admissions Request document.

On the other hand, if Carlton Sewell decided not to read the document, that would also amount to a conscious indifference. A decision not to read the document cannot be excused by the lack of legal knowledge. A person would know that the document was significant by the fact that it was sent certified mail , return receipt requested. Whether a prose litigant or a seasoned attorney, a decision not to read a document is a decision to ignore it. A decision to ignore it is conscious indifference. See Gaines, 2007 WL 865870 at *2.

"Conscious indifference has been defined as failing to take some action which would seem obvious to a person of reasonable sensibilities under the same circumstances." Berlanga v. Berlanga, No. 09-11-00082-CV, 2012 WL 252497, at *4 (Tex. App. -Beaumont 2012, no pet.)(quoting Johnson v. Edmonds. 712 S.W.2d 651 , 653 (Tex.App.-Fort Worth 1986, no writ)). It would seem obvious to a person of reasonable sensibilities to read a document that has been sent certified mail. Upon reading *6 such a document as is present in the instant case, it would seem obvious to a person of reasonable sensibilities to respond to the Requests for Admission. Therefore, Carlton Sewell acted with conscious indifference in failing to respond to the Requests for Admission.

In view of the discovery propounded by Carlton Sewell while he was acting pro se, it is apparent that he had some degree of legal sophistication. See Interrogatories and Request For Production dated June 7, 2010. (See Exhibit "A").

Furthermore, the trial court found that Carlton Sewell had acted with "conscious indifference." (See Exhibit "B"). Therefore, Carlton Sewell failed to establish " good cause" necessary to withdraw deemed admissions. The party seeking withdrawal of deemed admissions has the burden to establish good cause. Webb v. Ray, 944 S.W.2d 458, 461 {Tex.App.-Houston [14th Dist.] 1997, no writ). A trial court has broad discretion to permit or deny the withdrawal of admissions. See Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.1996). The judgment of the trial court should be set aside only if this Court finds that the trial court's judgment amounts to a clear abuse of discretion. Dichotomy Between Merits-Preclusive and Non-Merits-Preclusive Admissions

Significant is the interplay between the showing of "good cause" and the due process standard of "flagrant bad faith or callous disregard of the discovery rules." The " good cause" standard applies to whether the deemed admissions can be withdrawn under Rule 198.3. To establish "good cause," the admitting party must establish that the failure to respond was the result of accident or mistake, not intentional or the result of conscious indifference. Wheeler v. Green, 157 S.W.3d 439, 442 {Tex. 2005) The due process standard applies to prevent the proponent of the deemed admissions from using the deemed admissions in a merits-preclusive manner. Thus, if the Carlton Sewell fails to establish " good cause" then the admissions cannot be withdrawn under Rule 198.3. At the same time, the merits-preclusive deemed admissions cannot be used absent evidence of " flagrant bad faith or callous *7 disregard. " However, if the admitting party fails to establish "good cause," such that the deemed admissions cannot be withdrawn under Rule 198.3, the non-merits-preclusive deemed admissions can be freely used by the proponent without implicating due process concerns or the " flagrant bad faith or callous disregard" standard. Therefore, it is important to know which admissions are non-merits-preclusive such that they may be freely used without implicating due process concerns.

Below, find a list of the deemed admissions in this case and a statement as to whether each admission is merits-preclusive, and thus cannot be used absent "flagrant bad faith or callous disregard" or non-merits-preclusive, and thus may be freely used without implicating due process concerns. 1. That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her

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

mentally weak enough to be susceptible to undue influence. Merits-Preclusive. 3. That you influenced Velma Ruth Fitzgerald to the point of subverting and overpowering her

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

have done absent your influence. Merits-Preclusive. 4. That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having

contact with her as part of your scheme to exert undue influence over her. Merits-Preclusive. 5. That one of your techniques for exerting undue influence was to feign romantic love for Velma

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

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

to change her will to benefit the two of you. Non-merits-preclusive. 7. That you told the White brothers in Vernon that Velma Ruth Fitzgerald was not competent

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

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

death. Non-Merits-Preclusive.

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

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

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

Johnson and his staff. Non-Merits-Preclusive.

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

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

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

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

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

life. Non-Merits-Preclusive.

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

influence by August 2007. Merits-Preclusive.

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

Merits-Preclusive.

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

Real Parties in Interest believe that Admission 13 - "That you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life." is not merits-preclusive because "habitually" does not mean " in every instance," such as at the time of the execution of the will, and because "control" can exist that does not arise to such degree as to "subvert and overpower" the mind, e.g., controlling her visits with others, controlling her phone calls, etc.

Thus, Real Parties in Interest can freely use deemed admissions numbers: 6,7,10,11 ,12, and 13 without implicating due process concerns, so long as the failure to respond to the requests for *9 admission was the result of conscious indifference. Admissions 8 and 9 are also non-merits-preclusive, but Real Parties in Interest have heretofore withdrawn such admissions in the trial court. (See Exhibit " C"). Carlton Sewell Fails to Establish Absence of Undue Prejudice

The absence of undue prejudice is established by showing that a withdrawal of deemed admissions will not delay trial nor significantly hamper the opposing party's ability to prepare for trial. Marino v. King 355 S.W.3d 629, 633 (Tex.2011).

There is considerable discovery that Real Parties in Interest did not seek to conduct in reliance on the deemed admissions. If not for the deemed admissions, Real Parties in Interest would have sought to depose l) Tiffany Bassham, who was the administrator of the assisted living facility Carlton Sewell had Mrs. Fitzgerald sequestered in; 2) Alice Davis, who was one of the paid sitters; and, 3) DeeAnn Landers, the bank officer familiar with the unusual facts involving Carlton Sewell's use of the power of attorney, executed by Mrs. Fitzgerald in his favor, to purchase a rural home on several acres with an $80K down payment and a similar sized note with the local bank. (See Exhibit "A", Para. 5) Real Parties in Interest would also seek to obtain the bank records pertaining to that transaction.

Critical to Real Parties in Interest's case is the anticipated testimony ofTruitt Sewell, who is one of the Real Parties in Interest and the brother of Carlton Sewell. His anticipated testimony is the most probative evidence in the entire case. He would testify that Carlton Sewell asked him to help Carlton get Fitzgerald to change her will to benefit the two of them. As a strategic matter, it is important to elicit this information by live testimony.

Truitt Sewell became sick with cancer in the Fall of 2014. (See Exhibit "A", Para. 6.). His health has deteriorated to the point that he probably will not have the capacity to testify at trial because of the delay of trial from January 12, 2015, to some undetermined point in the future. Id. Thus, Real *10 Parties in Interest's case is highly prejudiced by the delay of trial.

Additionally, the case of Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803, n. 5 (Tex.App.-Houston [ 151 Dist] 1999) is instructive. There, trial was commenced more than 2 years after the requests for admissions were deemed admitted. After trial began, and after 3 witnesses had testified and 10 exhibits had been admitted, plaintiffs sought to introduce the deemed omissions, which caught the defendant unaware, because the deemed admissions were the result of a clerical error by the staff of defendant's attorney, who was ignorant of the mistake until the day of trial. The trial court granted the defendant leave to withdraw the deemed admissions but offered plaintiffs a mistrial in order for plaintiffs to conduct the discovery plaintiffs had not conducted in reliance on the deemed admissions. The plaintiffs refused the mistrial. From an unfavorable result, plaintiffs appealed. The 151 District Court of Appeals reversed, holding that the plaintiffs were unduly prejudiced because there was considerable discovery that plaintiffs did not conduct in reliance on the deemed admissions. The court of appeals also noted that the plaintiffs "were not required to accept a mistrial - plaintiffs were entitled to rely on the guiding rules and principles set out in the Rules of Civil Procedure regarding deemed admissions." The court of appeals did not blame the plaintiffs, in the least, for waiting over two years, and not until the middle oftrial, before asserting the deemed admissions.

Like the plaintiffs in Morgan, the Real Parties in Interest here have substantial discovery which they did not seek to conduct in reliance on the deemed admissions. (See Exhibit "A", Para. 5). Real Parties in Interest here, upon filing their Certificate of Deemed Admissions, "were entitled to rely on the guiding rules and principles set out in the Rules of Civil Procedure regarding deemed admissions." In Morgan, the court permitted withdrawal of deemed admissions during the middle of trial. In the instant case, the Court delayed the trial of the case for the purpose of entertaining a motion for withdrawal of deemed admissions. (See Exhibit "A", Para. 7). Delay of trial is a quintessential form of undue prejudice. Twenty cases in Texas substantially state: "Undue prejudice depends on whether *11 withdrawing an admission will delay trial or significantly hamper the opposing party's ability to prepare for it." Boulet v. State, 189 S.W.3d 833, 836-37 (Tex. App. - Houston [1 51 Dist.] 2006, no pet.)( emphasis added).

In their reliance on the guiding rules and principles set out in the Rules of Civil Procedure, Real Parties in Interest have been prejudiced by the delay of trial. Therefore, Carlton Sewell has failed to establish an absence of undue prejudice, and the Petition For Writ of Mandamus should be denied.

The fact that Real Parties in Interest had 4Y2 years to conduct the discovery that was not conducted is immaterial, because the Real Parties in Interest believed that the pertinent propositions of law were established by the deemed admissions.

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

By engaging in substantial discovery after Real Parties in Interest's Request for Admissions, Carlton Sewell cannot complain of the untimeliness of Real Parties in Interest's Request for Admissions. The Request for Admissions was served on May 13, 20 10. Subsequent to that time, the parties continued to engage in discovery, i.e. , Requests for Disclosure, Interrogatories, Requests for Production and additional depositions. (Carlton Sewell's Mandamus Record, Vol. I, Tab 21 and 23). By their conduct and tacit agreement, the parties perpetuated the discovery period.

PRAYER

For the foregoing reasons, Real Parties In Interest pray the Court to strike those admissions having merits-preclusive effect, Admissions numbers 1,2,3,4,5, 14, 15, 16; strike those admissions that were withdrawn in the trial court, Admissions 8 and 9; and affirm those admissions having non-merits-preclusive effect, Admissions numbers 6,7,10,11.12,13; deny Carlton Sewell's Petition For Writ of Mandamus, and for such other relief, at law or in equity, to which they may be justly entitled.

Respectfully submitted,

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

ATTORNEY FOR CONTESTANTS

CERTIFICATE OF SERVICE

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

~~ Chad Cable

Exhibit "A"

No. 06-15-00032-CV

In the Court of Appeals

Sixth Judicial District

Texarkana, Texas

In re CARLTON SEWELL, Relator

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

PETITION FOR WRIT OF MANDAMUS

AFFIDAVIT OF CHAD CABLE

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

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

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

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

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

5. In reliance on the deemed admissions, I did not seek to depose 1) Tiffany Bassham, head

administrator of the assisted living center in which Velma Ruth Fitzgerald was sequestered by Carlton; 2) Alice Davis, the paid sitter of Velma Ruth Fitzgerald; and 3) DeeAnn Landers, the bank officer involved in Carlton's purchase of a rural home on several acres for a down payment of $80,000.00, together with a like amount borrowed through the bank, which Carlton purchased under the power of attorney executed in his favor by Velma Ruth Fitzgerald.

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

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

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

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

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II II UNITED STATES POSTAL SERVICE -~ ·>~

~ • Sender: Please print your name, address, and 10

law Offices of Chad Cable 323 Gilmer Sulphur Springs. TX 7 5482 II I ! I I I - ___ __ I '

~to:

Mr. Carlton S2well 107 Morris Drive Sulphur Springs, Texas 75482 "41111 ~a Merdlellllllle I . I DYes 2.~~ 7005 1820 0007 7656 6578 (T1'811$1er ~ ~ ilbal) ' PS Fonn 3af1 :~;2004 • • • • '" r • 9 I - -c-~·Hilt~n~ Receipt 1~15401 ~ - -- -~ --- - -

( Affidavit of Chad Cable Exhibit "B" CARLTON SEWELL 6940 TX Hwy. 11 E. Sulphur Springs, TX 75482

June 7, 2010

Chad Cable 323 Gilmer St. Sulphur Springs, TX 75482

Rc: 1. Request for Production 2. [nterrogatories

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

Dear Mr. Cab le:

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

Sincerely,

Carlton Sewell Encs.

No. POS-131 06

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

INTERROGATORIES TO JANET NEAL STANLEY AND TRUIT SEWELL

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

COMES NOW, Carlton Sewell, "Defendant", and pursuant to Rule 197 ofthe Texas Rules of Civi I Procedure, serves the attached interrogatories to be propounded to Janet Neal Stanley and Truitt Sewell, Proponents.

Pursuant to the provisions of Rules 192 and 197 of the Texas Rules of Civil Procedure, you are required to complete written answers to the Interrogatories on Exhibit "A" to this pleading immediately upon the expiration of thirty (30) days following the date you are served with these Interrogatories. You are notified that the Defendant specifies that the answers shall be served upon the undersigned counsel.

Your failure to make timely answers or objections may subject you to sanctions as provided in Rule 215 of the Texas Rules of Civil Procedure.

Furthermore, demand is made for the supplementation of your answers to these Interrogatories as required by Rule 193.5 of the Texas Rules of Civil Procedure.

Respectfully submitted,

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

Interrogatories to Janet Neal Stanley and Truitt Sewell Page 1

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

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

Carlton Sewell Interrogatories to Janet Neal Stanley and Truitt Sewell Page 2

DEFINITIONS AND INSTRUCTIONS

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

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

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

3. "Decedent" means Velma Ruth Fitzgerald.

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

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

Interrogatories to .Janet Neal Stanley and Truitt Sewell Page3

paragraph "I", "Definitions" is intended to include the appropriate gender or number as the text of any pmticular discovery may require.

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

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

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

b. Asserts a specific privilege for each item or group of items withheld. Interrogatories to Janet Neal Stanley and T ruitt Sewell Page4

INTERROGATORIES

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

ANSWER:

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

ANSWER:

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

A SWER:

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

ANSWER:

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

A SWER:

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

A SWER:

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

ANSWER: Interrogatory No. 8: Please identify all of the legal contentions and factual basis for your Interrogatories to .Janet Neal Stanley and T ruitt Sewell PageS

contentions that the Will dated April 26, 1993, propounded by Defendant, was not revoked by Decedent.

ANSWER: Interrogatories to Janet Neal Stanley and Truitt Sewell Page 6

( ( Affidavit of Chad Cable Exhibit "C" No. POS-13106

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

REQUEST FOR PRODUCTION

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

NOW COMES CA RLTON SEWELL, Defendant, and pursuant to Rule 192 and 196 of the Texas Rules of C ivil Procedure, requests Janet Neal Stanley and Truitt Sewell to produce and permit the inspection and copying of items requested in Exhibit " A" at 6940 TX Hwy . II E .. Sulphur Springs, TX 75482, immediately upo n the expiration of thirty (30) days fo llowi ng the date you are served with this set of requests for production .

If a docu ment requested hereunder has already been produced, in response to a previous request for productio n, subpoena, o r order in this litigation , it need not be produced again. However, any such doc uments previously produced should be identified by date, description and paragraph herein to which the documents are relevant.

Respectfully submitted,

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

Request for Production Page 1

CERTIFICATE OF SERVICE

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

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

Carlton Sewell Request for Production Page 2

DEFINITIONS AND INSTRUCTIONS

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

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

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

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

3. " Decedent" means Velma Ruth Fitzgerald.

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

USE OF DEFINITIONS

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

TIME PERIOD

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

DESCRIPTION OF WITHHELD MATERIAL OR INFORMATION

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

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

b. Asserrs a specific pri vilege for each item or group of items withheld. Request for Production Page 4 \

Exhibit "A" REQUESTS FOR PRODUCTION

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

RESPONSE:

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

RESPONSE:

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

RESPONSE :

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

RESPONSE:

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

RESPONSE :

Request for Production Page 5

EXHIBIT "B"

NO. POS-13106

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

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

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

The Court ORDERS that Admissions 1, 3, 5, 8, 9, 14, 15, 16 are hereby withdrawn and made of no effect. The Court ORDERS that Contestants' Motion for Summary Judgment is likewise withdrawn and made of no effect. The Court reiterates its prior order that the withdrawal of deemed admissions by Carlton Sewell as to Admissions 2, 4, 6, 7, 10, 11, 12, 13 is denied, the Court finding that Carlton Sewell did not have "good cause" for withdrawal of such Admissions in that he acted with "conscious

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

EXHiBIT "C"

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

CONTESTANTS' NOTICE OF WITHDRAWAL AND REPUDIATION OF CERTAIN DEEMED ADMISSIONS

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW Truitt Sewell and Janet Neal Stanley, Contestants, filing this their Notice of Withdrawal and Repudiation of Certain Deemed Admissions and would respectfully show the Court as follows:

I.

On May 13, 2010, Contestants served on Carlton Sewell Contestants' First Request For Admissions. Carlton Sewell did not timely respond to the request and the admissions were, therefore, deemed to be admitted. On January 12, 2015, Contestants' attorney filed a Certificate of Deemed Admissions, setting forth the admissions that were deemed as a result of Carlton Sewell's failure to timely respond.

Please take notice that Contestants hereby withdraw from the list of "deemed" admissions, Admissions numbers I, 3, 5, 8, 9, 14, 15 and 16, the admissions which would have had merits-preclusive effect. And, hereby repudiates those deemed admissions and asserts that such admissions will not be used or relied upon in any manner nor in any context, including at the trial of this matter, in any summary judgment proceeding, in any mandamus proceeding, and in any appeal. Contestants also hereby withdraw and repudiate their Motion For Summary Judgment which was filed in this case.

II P age Respectfully submitted,

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

ATTORNEY FOR CONTESTANTS

Footnotes

[2] 1P age