in Re: VSDH Vaquero Venture, Ltd. and Douglas M. Hickok

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 NoEvidence Motion for Summary Judgment (April 22, 2011) ................... tab 11 Plaintiff/Counter-Defendant VSDH Vaquero Venture, Ltd.’s Third Supplemental Answer as an Addition to CounterDefendants’ 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/CounterDefendant 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 CounterPlaintiffs 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 CounterDefendants 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 CounterPlaintiffs 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 CounterDefendants 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 787112188, 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] ... [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 [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 nonrefundable 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 C;\Documents and.Settings\doug\Local Settings\Tempora.J)' Int~et Fi1es\OI.K6A\lstAmendment to Contract v2 061907(SSFN).doc --------------- . ili EXECUTED as of (although not necessan1y on) the 12 day of June, 2007. PURCHASER: KENNETH P. GROSS Page 3 of3 C:\Documents and Settings\doug\Local Settings\Temporary Internet Filcs~O_LK.6A\lst Amendment.to Contract v2 061907{SSFN).doc . .....- .... - -- @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'" iJJE-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 nonrefundable 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 C:\Docum:nts az:d Setti..<gs\doug\Local Setlings\Temporzry Internet Files\OLK6A\Ist Amendment to Contractv2 061907(SSFN).dpc ·--------------- ---- 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 CounterDefendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim and CounterDefendants' 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 CounterDefendants' 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 CounterPlaintiffs 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 CounterDefendants 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 CounterPlaintiffs' 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 buyback 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'(/f214/754-7110 .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 CounterDefendants' 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 CounterDefendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim and CounterDefendants' 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 buyback 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 CounterDefendant 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 CounterDefendants' 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 CounterDefendants' 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 CounterDefendants' First Amended Answer to Defendants/Counter-Plaintiffs' Counterclaim and CounterDefendants' 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/CounterDefendant 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/CounterDefendant 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/CounterDefendant 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/COUNTERDEFENDANT 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 CounterDefendants' 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./ _[ 12/05/2013 12:05 2147547.115 LAW OFFICE OF \/ c;HAW PAGE 15/15 12/6111 ProOoc® eFlllng 2· Filing Acl<nCMiedgement .,b!Q Out, logged in as janot@lshawlaw.net Click Here to go to Pro Doc eFiljng ! I Horne I Submi~ ~:mng j My Filings/ Firm Management I Resources! 1-1elp J ---~rQOf of Filil)_g_ 1. Case Information Your submission W<l$ s:uccessful! Your tr01ce number rs 54667. The details of your filing are sho\M'l 2. Uplo'1d Documents below. 3, Fillng SerVi<:es 4. cScrvice You can monitor the status of this filing by going to the "~y Fiiio.gs" 3t"e~L S. Review Filing 6. Process Filing The date and time below wlll be the official tlmcstiimp when this flllMg i!!< a<::c:epted by the clerk. 7. Acknowledgement r-·· · .·- ·--·-·······-------·-.· Start a Ne~ ! ----·-··-~=~ Date! Time f 1ime Zone: --,-~- ·'> ' - Friday, December 06, 2.013 \ 11:41:30 AM ------- -----·------ Bookmark 111,.[s Page Privacy: !;!olfcy www.ProOoc.com This s!te and all contents C:opyri9ht ©2003-2013 Thomson Reuters. All rights reserved. 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 [12] ------------------------------------------------------- [13] KEN GROSS AND BETSY GROSS' MOTION 14 TO DISQUALIFY EVAN L. SHAW ------------------------------------------------------- [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 [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) [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) [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/COUNTERDEFENDANT 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 [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 [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) [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) [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 [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/CounterDefendants, )DALLAS COUNTY, TEXAS [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. [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. [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 [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 [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) [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 [25] 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 [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. [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. [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 [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) [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 [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 [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. [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. [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 [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) [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 [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 [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. [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. [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) [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 [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 [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. [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. [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) [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) [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