ACCEPTED 06-15-00032-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 6/25/2015 11:10:59 AM DEBBIE AUTREY CLERK No._________________________ FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS In the Court of Appeals 6/25/2015 11:10:59 AM DEBBIE AUTREY Sixth Judicial District Clerk Texarkana, Texas In re CARLTON SEWELL, Relator Original Proceeding from the County Court at Law of Hopkins County, Texas ______________________________________________________________________________ PETITION FOR WRIT OF MANDAMUS J. Brad McCampbell Attorney for Relator State Bar No. 13358000 CURTIS, ALEXANDER & McCAMPBELL, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 Telephone: (903)473-2297 Facsimile: (903)473-3069 bmccampbell@cammpclaw.com ORAL ARGUMENT REQUESTED Identity of Parties and Counsel The following is a list of all parties and all counsel in this matter: RELATOR in this matter is Carlton Sewell and he is a Proponent/Contestant in the underlying case. The attorney representing Relator is: J. Brad McCampbell CURTIS, ALEXANDER & McCAMPBELL, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 RESPONDENT in this matter is the Honorable Amy Smith, Judge of the County Court at Law of Hopkins County, Texas. THE REAL PARTIES IN INTEREST in this case are Janet Neal Stanley, Applicant, and Contestants, Truitt Sewell, Sue Neal, Melanie Wells, Robert Wells, Harold Wells, Tracy Wright, Cynthia Terrell, Nick Wells, Alleen Neal, Nicholas Maryol, Anita Counts, and Troy Sewell, and are represented by counsel as indicated: Mr. Chad Cable CHAD CABLE LAW OFFICE 323 Gilmer Street Sulphur Springs, Texas 75482 Tel: (903) 885-1500 Fax: (903) 885-7501 Page i Table of Contents IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page i INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page iii STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 1 STATEMENT OF THE JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2 ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2 ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 12 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 14 APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 15 Page ii Index of Authorities CASES PAGE Employer’s Ins. of Wausau v. Halton, 792 S.W.2d 462 (Tex.App. - Dallas 1990, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . 9 FDIC v. Prusia, 18 F.3d 637 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 In re Ford Motor Company, 165 S.W.3d 315 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 In re Kellogg, Brown & Root, Inc., 45 S.W.3d 772 (Tex.App. - Tyler 2001, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 In re Rozelle, 229 S.W.3d 775 (Tex.App. - San Antonio 2007, orig. proceeding) . . . . . . . . . . . . . . . 5, 7 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Mansfield State Bank v. Cohn, 573 S.W.2d 181 (Tex. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Marino v. King, 355 S.W.3d 629 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 National Hockey League, 427 U.S. at 642-643, 96 S.Ct. at 2780-81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Stelly v. Papania, 927 S.W.2d 620 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10 Page iii Trans-American National Gas Corp., 811 S.W.2d 913 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10 U.S. Fid. & Guar. Co. v. Gundeau, 272 S.W.3d 603 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11 Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 STATUTES, AND RULES TEX. GOV. CODE, § 22.221(b) (Vernon 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 TEX.R.CIV.P. 198.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10 Page iv Statement of the Case The underlying action is a will contest regarding the probate of the Last Will and Testament of Velma Ruth Fitzgerald. Velma Ruth Fitzgerald, Decedent, a resident of Hopkins County, Texas, died on December 31, 2007. On January 2, 2008, RELATOR (hereafter referred to as “C. SEWELL”) filed an Application to Probate Will of Decedent dated August 8, 2007 in the County Court of Hopkins County, Texas (Vol. 1, Tab 1). C. SEWELL’S Application was heard and the Will offered by C. SEWELL was admitted to probate as a Muniment of Title on January 15, 2008 (Vol. 1, Tab 2). The REAL PARTIES IN INTEREST, JANET NEAL STANLEY (hereafter referred to as “STANLEY”) and TRUITT SEWELL (hereafter referred to as “T. SEWELL”), respectively filed an Application to Probate a Last Will and Testament dated April 26, 1993 and an Opposition to C. SEWELL’s Application to Probate (Vol. 1, Tabs 3, 4 & 7). After a lengthy period, the case was set to proceed to trial with jury selection on January 12, 2015. On that date, just hours before the commencement of trial, STANLEY and T. SEWELL, by their attorney, Mr. Chad Cable, filed with the Court a “Certificate of Deemed Admissions” notifying the Court of the failure of C. SEWELL, who was representing himself pro se at the time, to respond to Request for Admissions delivered to C. SEWELL in 2010 (over 4½ years before trial) (Vol. 1, Tab 20). C. SEWELL’s subsequent attorneys of record, Mr. Frank Bauer (2nd counsel) and Mr. J. Brad McCampbell (3rd/present counsel) were totally unaware that their client had been served with Request for Admissions in 2010 (Vol. 2). As a result of Cable’s filing, at attorney McCampbell’s request, the Court canceled the jury setting and allowed C. SEWELL to file a Motion to Withdraw Deemed Admissions (Vol. 1, Tabs 21 & 23). STANLEY and T. SEWELL filed a Response to the Motion to Withdraw Deemed Admissions (Vol. 1, Tab 22). A hearing on the Motion was held on April 7, 2015 (Vol. 2). Respondent, The Honorable Amy Smith, denied the Motion to Withdraw Deemed Admissions as evidenced by Order entered on April 14, 2015 (Vol. 1, Tab 24). This Petition for Writ of Mandamus follows. Page -1- Statement of Jurisdiction The Court has jurisdiction over this Petition for Writ of Mandamus under Section 22.221(b) of the Texas Government Code. Issue Presented Issue: Did RESPONDENT abuse her discretion in denying RELATOR’s Motion to Withdraw Deemed Admissions? Statement of Facts This case was commenced on January 2, 2008 by C. SEWELL’s filing an “Application to Probate Will (of Velma Ruth Fitzgerald, dated August 8, 2007) as a Muniment of Title” (Vol. 1, Tab 1). Said Application was heard by the Judge of the County Court of Hopkins County, Texas on January 15, 2008 which resulted in said Will being admitted to probate as a muniment of title (Vol. 1, Tab 2). On January 30, 2008, Janet Neal Stanley (hereafter referred to as “STANLEY”) filed a competing Application to probate a Will executed on April 26, 1993 by Velma Ruth Fitzgerald (Vol. 1, Tabs 3 & 7). Both sides filed respective oppositions to the probate applications filed (Vol. 1, Tabs 4, 6, & 16). On February 14, 2008, the “Will contest” was transferred to the Hopkins County Court at Law by order of the County Judge of Hopkins County (Vol. 1, Tabs 5 & 11). 1 Page -2 1 Counsel for C. SEWELL does not know the reason for the two (2) transfer orders dated February 14, 2008 and May 20, 2010 respectively. Representing C. SEWELL in the “Will contest” was Mr. Eddie Northcutt. Representing STANLEY on her Application and T. SEWELL et al on their Opposition was Mr. Chad Cable. Mr. Northcutt filed an opposition to STANLEY’s application to probate on February 14, 2008 (Vol. 1, Tab 6). As part of the discovery performed in the case, the oral deposition of C. SEWELL was taken by Chad Cable on May 13, 2008. Eddie Northcutt was present during the deposition. Regarding discovery in the case, there was no Discovery Control Plan entered by the Court. That being the case, the applicable Discovery Control Plan for this probate matter is TRCP 190.3, where discovery is mandated to be completed no later than nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery. The deposition of C. SEWELL on May 13, 2008, was the commencement of the discovery period (Vol. 1, Tab 21; Vol. 2). On January 23, 2009, the Court signed an order allowing Eddie Northcutt’s withdrawal from the representation of C. SEWELL (Vol. 1, Tabs 8 & 9). On June 17, 2010, C. SEWELL retained the services of Mr. Frank Bauer to represent him in the “Will contest” (Vol. 1, Tab 13). In the interim between the withdrawal of Mr. Northcutt and the engagement of Mr. Bauer, it appears that on May 13, 2010, Mr. Cable served Requests for Admission on C. SEWELL, who, at the time, was acting pro se (Vol. 1, Tab 19). C. SEWELL did not respond to said Requests for Admission (Vol. 1, Tabs 21 & 23). The parties thereafter continued to engage in various forms of discovery, i.e., Requests for Disclosure, Interrogatories, Requests for Production, and additional depositions (Vol. 1, Tab 21 & 23; Vol. 2). Page -3- On April 22, 2013, Frank Bauer filed a motion to withdraw from the representation of C. SEWELL. An order allowing Mr. Bauer’s withdrawal was signed by this Court on April 23, 2013 (Vol. 1, Tab 17). In July, 2013, C. SEWELL retained the services of J. Brad McCampbell, attorney, to represent C. SEWELL in the matter. Mr. McCampbell’s representation continues to date (Vol. 1, Tab 19). Since being engaged by C. SEWELL, Mr. McCampbell began preparation to try this case in front of a jury. This case was set on various jury dockets only to be continued each time. On January 12, 2015, the case was finally set to commence with jury selection at 1:00 p.m. At 9:20 a.m. on January 12, Mr. Cable filed a document titled “Certificate of Deemed Admissions” notifying the Court of the failure of C. SEWELL to respond to the Requests for Admission submitted by Mr. Cable over 4½ years before (Vol. 1, Tab 20). Neither attorneys Bauer nor McCampbell knew of the existence of these requests for admission until the filing of the Certificate of Deemed Admissions by Mr. Cable literally hours before jury selection. Based on that filing, this Court excused the jury panel prior to commencement of trial and allowed Mr. McCampbell, on behalf of C. SEWELL, time to file a Motion for Withdrawal of Deemed Admissions (Vol. 1, Tabs 21 & 23; Vol. 2). On February 10, 2015, C. SEWELL filed his Motion to Withdraw Deemed Admissions with his attached Responses to the Requests for Admission (Vol. 1, Tabs 21 & 23). On April 6, 2015, T. SEWELL and STANLEY filed their Response to C. SEWELL’s Motion to Withdraw Deemed Admissions (Vol. 1, Tab 22). On April 7, 2015, a hearing was held on the Motion to Withdraw Deemed Admissions and after hearing, the Court entered an order denying the motion (Vol. 1, Tab 24). Page -4- Argument and Authorities A court of appeals may issue a writ of mandamus, “agreeable to the principles of law regulating those writs,” against a judge of a county court. TEX.GOV.CODE §22.221(b)(1) (Vernon 2004). No Adequate Remedy of Appeal A mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005). “A trial court clearly abuses its discretion if ‘it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law’ ” (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). “A clear failure to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). In Walker, the Texas Supreme Court held that an appeal will be inadequate where the relator’s . . . “ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial court’s discovery error . . . The relator must establish the effective denial of a reasonable opportunity to develop the merits of his or her case, so that the trial would be a waste of judicial resources.” Id. at 843. In In re Kellogg, Brown & Root, Inc., 45 S.W.3d 772 (Tex.App. - Tyler 2001, no pet.), the Tyler Court held that the trial court abused its discretion in denying Brown & Root’s motion to strike, withdraw or amend its deemed admissions, and that Brown & Root lacked an adequate remedy by appeal. See Page 777. Likewise, in In re Rozelle, 229 S.W.3d 757 (Tex. App - San Antonio 2007, orig. proceeding), the San Antonio Court held that the trial court abused its discretion in denying Rozelle’s request to withdraw deemed admissions received by Rozelle when he was acting pro se, and therefore conditionally granted a Writ of Mandamus. See Page 764; see also TransAmerican National Gas Corp. v. Powell, 811 S.W.3d 913, 919 (Tex. 1991) (orig. Page -5- proceeding) (“Whenever a trial court imposes sanctions which have the effect of adjudicating a dispute, but by striking pleadings, dismissing an action or rendering a default judgment, but which do not result in rendition of an appealable judgment, then the eventual remedy by appeal is inadequate.”) In Walker, the Court stated there is no adequate remedy by appeal for a merits-preclusive discovery sanction, unless “the sanctions are imposed simultaneously with the rendition of a final, appealable judgment.” Walker at 843. No such judgment has been rendered in our case. The Substance of TRCP Rule 198.3 The applicable Texas Rule of Civil Procedure (TRCP) regarding the effect of deemed admissions and their withdrawal is Rule 198.3. The pertinent language of Rule 198.3 is as follows: “ . . . a matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. The court may permit the party to withdraw or amend the admission if: (a) the party shows good cause for the withdrawal or amendment; and (b) the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will not be subserved by permitting the party to amend or withdraw the admission.” Breaking down the requirements of subsections (a) & (b) of 198.3, it is C. SEWELL’s position that in seeking withdrawal of deemed admissions he must show (1) good cause for the withdrawal; (2) that such withdrawal will not unduly prejudice the party relying on the deemed admissions; and (3) that the merits of the case will be benefitted or promoted by permitting the withdrawal. Good Cause Exists to Withdraw the Deemed Admissions “Good cause” is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). While C. SEWELL recognizes that trial courts have broad discretion to permit or deny withdrawal of deemed admissions, but they cannot do so arbitrarily, unreasonably, or without reference to guiding principles. Id. at 622. Page -6- There does exist good cause for withdrawal of the deemed admissions: (1) At the time of delivery of the requests for admission to C. SEWELL, he was representing himself pro se, (attorney Northcutt having withdrawn as counsel of record in January of 2009 and before attorney Bauer undertook his representation) (Vol. 1, Tabs 9 & 13; Vol. 2). (2) Representing himself, C. SEWELL did not have an understanding of the effect of admissions and the consequences of not responding to them (Vol. 1, Tabs 21 & 23; Vol. 2). As in the Rozelle case previously cited, and the Wheeler case hereafter discussed, the fact that the party receiving the Requests for Admission, not being a lawyer, is significant to the Court’s determination under Rule 198.3. (3) While C. SEWELL does not deny that his signature is affixed to the certified mailing’s return receipt card at the time of delivery of the Requests for Admission, he does not have recollection of the Requests for Admission and has not been able to locate said document (Vol. 1, Tabs 21 & 23; Vol. 2). (4) The deposition of C. SEWELL was taken in May 2008. In said deposition, C. SEWELL took a position entirely contrary to the substance of the requested admissions delivered to him in 2010 (Vol. 1, Tab 21, Page 4 & 5, Tab 23; Vol. 2). Upon taking this deposition, attorney Cable became acutely aware of C. SEWELL’s position in the case (Vol. 1, Tab 21, Page 4, Tab 23; Vol. 2). Additionally, attorney Cable was aware that C. SEWELL’s opposition filed by attorney Northcutt in February 2008, a date over two years before the Requests for Admission, denied allegations that Decedent lacked testamentary capacity and that C. SEWELL exerted undue influence over Decedent (Vol. 1, Tab 21, Page 5, Tab 23; Vol. 2). The subject Requests for Admission, as deemed, are in direct contradiction to S. SEWELL’s position in the case. Page -7- (5) Attorneys Bauer & McCampbell were never made aware of the delivery of Requests for Admission to C. SEWELL, either by C. SEWELL himself or by attorney Cable, until the morning of jury selection in January of 2015. Neither did the Court’s file contain any evidence that Requests for Admission had been sent to C. SEWELL.2 Had either attorney been made aware, one of two things would have happened: (1) Responses to the Request for Admissions would have been immediately prepared and submitted; or (2) a Motion to Withdraw Deemed Admissions would have been filed shortly after being made aware of them (Vol. 1, Tab 21, Page 4, Tab 23; Vol. 2). (6) Over 4½ years elapsed from the deadline for responding to the Requests for Admission and the filing of the Certificate of Deemed Admissions (Vol. 1, Tab 20). (7) While our rules do not mandate if or when a Certificate of Deemed Admissions should be filed in a given case, the effect of attorney Cable’s chosen course was to allow C. SEWELL to hire not one but two more attorneys, spending thousands of dollars in preparation for trial when attorney Cable knew all along that C. SEWELL’s case was effectively “gutted” by the deemed admissions (Vol. 1, Tabs 21 & 23; Vol. 2). Based on the foregoing, C. SEWELL’s failure to respond was not intentional or the result of conscious indifference, bad faith, or a callous disregard for the rules. Real Parties in Interest Will Not be Unduly Prejudiced by the Withdrawal of the Deemed Admissions (1) This case commenced in January of 2008. Approximately (7) seven years passed between that date and the trial setting of January 12, 2015. During that time, both Page -8- 2 At the time of delivery of the Requests for Admission by the attorney Cable, no Certificate of Written Discovery was filed with the Court (which is customarily done by attorneys) nor was any other type of notice filed with the Court that the Requests were being sent. This is significant because attorney McCampbell’s thorough review of the Court’s file and previous attorney Bauer’s file did not reveal any hint of the Requests for Admission (Vol. 1, Tab 21, Pages 2, 3, & 4). sides have conducted discovery, i.e., depositions, requests for disclosure, interrogatories and requests for production (Vol. 1, Tabs 21 & 23; Vol. 2). The position of the REAL PARTIES IN INTEREST is that they will be prejudiced if the admissions are withdrawn because they would have conducted and completed more discovery had they known. This position is not supported by case law. As already stated, over 4½ years have passed between the deadline to respond to the Requests for Admission and the trial setting, more than ample time for all discovery to be conducted. In Employer’s Ins. of Wausau v. Halton, 792 S.W.2d 462, 467 (Tex.App. - Dallas 1990, writ denied), the Dallas Court, in allowing the withdrawal of deemed admissions, stated that: “Defendant’s counsel pointed out that Plaintiff had almost a month before trial to conduct additional discovery the matters previously admitted. We reiterate that Plaintiff had known since early July. When Defendant filed its Original Answer, that Defendant contested almost all material issues in the case . . . It is hard to find prejudice where the parties had almost a month before the trial in which they could conduct additional discovery about the injury and the disputed fact issues. Moreover, as we have stressed, Plaintiff knew that Defendant contested the very ‘injury’ upon which Plaintiff’s Industrial Accident Board award was based. He cannot now claim prejudice by its ‘reliance’ on the deemed admissions when he knew that Defendant disputed almost every issue in the lawsuit.” See Page 467. (2) As already stated, STANLEY and T. SEWELL, by Attorney Cable, had previously deposed C. SEWELL in 2008. Their theories of the case were not dependent upon the deemed admissions. These facts are similar to those in Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354 (Tex. 1998). In Deggs, the Court held that because Plaintiff Deggs had taken the deposition of Defendant Smith before the Requests for Admission to Smith were due, Deggs would not be unduly prejudiced if the deemed admissions were withdrawn. Id. at 357. That Court further held that deemed admissions should be withdrawn if presentation of the merits of the action will be served thereby. Deggs at 356. Page -9- (3) During the pendency of this case, both sides either requested or agreed to several continuances regarding trial of the case (Vol. 2). (4) The term “prejudice” does not include the fact that, if the admissions were withdrawn, the party who obtained that admission would then have to convince the fact finder of its truth. See FDIC v. Prusia, 18 F.3d 637, 640 (8th Cir. 1994). Withdrawal of the Deemed Admissions Would Promote Presentation of the Merits of the Case TRCP 198.3 includes as part of the undue prejudice inquiry whether presentation of the merits will be served by permitting withdrawal of deemed admissions. “The discovery rules were not designed as traps for the unwary, nor should we construe them as preventing a litigant from presenting the truth.” See Stelly at 622; see also Marino v. King, 355 S.W.3d 629, 632 (Tex. 2011) (quoting U.S. Fid. & Guar. Co. v. Gundeau, 272 S.W.3d 603, 610 (Tex. 2008): “Requests for Admission should be used as a ‘tool not a trap door’ ”). “The primary purpose [of Rule 169 (now 198)] is to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove. Is was never intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense.” See Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (1950). When a party uses deemed admissions to try to preclude presentation of the merits of a case, due process concerns should arise. See Trans-American National Gas Corp., 811 S.W.2d 913, 918 (Tex. 1991) (quoting National Hockey League, 427 U.S. at 642-643, 96 S.Ct. at 2780-81: “Sanctions which are so severe as to preclude presentation of the merits of the case should not be assessed absent a party’s flagrant bad faith or counsel’s callous disregard under the rules.”) In the case at bar, T. SEWELL alleges by his pleading that Decedent did not have testamentary capacity to execute the August 8, 2007 Will and that C. SEWELL unduly influenced Page -10- Decedent in her execution of that Will (Vol. 1, Tab 4). The deemed admissions, as a whole, have the effect of either precluding C. SEWELL’s presentation of the merits of his case or precluding his ability to present a ground of defense to the allegations (undue influence and lack of testamentary capacity) in his opponent’s pleadings (Vol. 1, Tab 22). Furthermore, several of the requests in question ask C. SEWELL to admit or deny a purely legal issue, i.e., that C. SEWELL exercised undue influence over Decedent; that the August 8, 2007 Will is invalid; and that C. SEWELL is liable for damages and attorney’s fees (Vol. 1, Tab 22). Similarly, in Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005), a custody modification case, the Court found that . . . “of the 64 deemed admissions, none sought to discover information: nine deemed circumstances changed so modification was proper, twenty-seven deemed modification in the child’s best interest, twenty-seven deemed Sandra liable for malicious prosecution, and three deemed her liable for child support, attorney’s fees, and exemplary damages.” Wheeler at 443. The Supreme Court in Wheeler held that there was good cause for withdrawing the deemed admissions and that withdrawal would not cause undue prejudice to the father. Id. at 444. The Court in Wheeler, while agreeing that pro se litigants were not exempt from the rules of procedure (see Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-185 (Tex. 1978) ), stated that: “When a rule itself turns on an actor’s state of mind (as these do here), application may require a different result when the actor is not a lawyer. Recognizing that Sandra did not know what any lawyer would does not create a separate rule, but recognizes the differences the rule itself contains.” Wheeler at 444. The due process concern voiced in Wheeler arises here because of the very nature of the admissions requested in the case at bar, and the trial court’s subsequent denial of the Motion to Withdraw Deemed Admissions has a merits-preclusive effect on C. SEWELL’s case and the case as a whole. Page -11- Prayer RELATOR prays that this Court issue a Writ of Mandamus commanding RESPONDENT, the Honorable Amy Smith, to vacate her Order denying RELATOR’S Motion to Withdraw Deemed Admissions and to enter an order granting RELATOR’s Motion to Withdraw Deemed Admissions and permitting RELATOR to substitute his late responses, and for such other and further relief to which RELATOR may be entitled. Respectfully submitted, CURTIS, ALEXANDER & McCAMPBELL, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 Tel. (903) 473-2297 Fax. (903) 473-3069 //s// J. Brad McCampbell bmccampbell@cammpclaw.com Texas Bar No. 13358000 ATTORNEYS FOR CARLTON SEWELL Page -12- VERIFICATION STATE OF TEXAS X COUNTY OF RAINS X BEFORE ME, the undersigned notary public, on this day personally appeared J. Brad Mccampbell, Relator's attorney, who being duly sworn by me deposed and said: 1. "I am counsel of record for CARLTON SEWELL, Relator in this case. I am over 21 years of age and am competent to make this affidavit. I have read the Petition for Writ ofMandamus to which this Verification is attached, which is filed on behalf of CARLTON SEWELL and every factual statement contained in the petition is within my personal knowledge and is true and correct. 2. "The petition is accompanied by a two-volume record and an appendix. I have personal knowledge that the pleadings, motions, and orders contained in Volume 1 of the record and those contained in the appendix are true and correct copies. I also have personal knowledge that the reporter's transcript contained in Volume 2 of the record is a true and correct copy of the electronic recording of the hearing on CARLTON SEWELL's Motion to Withdraw Deemed Admissions that has been transcribed by Jana Atchison Rushing, CSR." Further Affiant sayeth not. SUBSCRIBED AND SWORN TO BEFOREMEonJune23, 2015, to certify which witness my hand and official seal. SUSAN PEREZ My Commission Expires August24,2018 Page -13- Certificate of Service I certify that a true copy of this Petition for Writ of Mandamus was served in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure on each party or the attorney for such party indicated below by hand delivery on this 25th day of June, 2015. /s/ J. Brad McCampbell __________________ Attorney for Relator Honorable Amy Smith Presiding Judge of the Hopkins County Court at Law 118 Church Street Sulphur Springs, Texas 75482 By Hand Delivery Mr. Chad Cable CHAD CABLE LAW OFFICE 323 Gilmer Street Sulphur Springs, Texas 75482 Attorney for Applicant and Contestants By Hand Delivery Page -14- Appendix 1. Certified copy of the Trial Court’s Order dated April 14, 2015 2. Copy of TEX. GOV. CODE, § 22.221 (Vernon 2004) 3. Copy of TEX.R.CIV.P. 198.3 Page -15- NO. P08 - 13,106 7.015 1~PR I Lt P 2: ~-5 ESTATE OF § IN THE COUNTY GDERJ?~!r'·!-~Y t_,:JUfof f 'f L~f:R~{ § VELMA RUTH FITZGERALD, § By···••H. ·-·· ··-··--·---·-··-·-· 0E? uT'f DECEASED § HOPKINS COUNTY, TEXAS ORDER DENYING MOTION TO WITHDRAW DEEMED ADMISSIONS, SHEDULING SUMMARY JUDGMENT HEARING AND REQUIRING MEDIATION The Court considered Probate Applicant Carlton Sewell's Motion to Withdraw deemed Admissions and Contestant's response with argument of respective counsel on The Motion to Withdraw Deeded Admissions is hereby denied. Noting the Contestants have filed a Motion for Summary Judgment, a hearing on that motion is hereby scheduled for May 21 5\ 2015 at 9:00 a.m. Finally, the parties are Ordered to mediation, to be completed prior to May 21 5\ 2015 with a mediator to be agreed upon by the parties. Absent an agreement within five days the Court will name a mediator. The cost of the mediator shall be evenly divided between the parties. Signed this \ \..\ day of April, 2015. ORDER DENYING MO'I'IONTO WITHDRAW Judge DE~SifffeX z >' I ILUL!Ni JUDGMENT HEARING AND RE UIRING MEDIA'lf{ip 7 ·l~ COPY OF ORIGINAL ·\--\ ~* FILED IN 1--!0Pf GOVERNMENT CODE > TITLE 2. JUDICIAL BRANCH > SUBTITLE A. COURTS > CHAPTER 22. APPELLATE COURTS > SUBCHAPTER C. COURTS OF APPEALS § 22.221. Writ Power (a) Each court of appeals or a justice of a court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court. (b) Each court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against a: (1) judge of a district or county court in the court of appeals district; or (2) judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district. (c) [Repealed by Acts 1987, 70th Leg., ch. 148 (S.B. 895), § 2.03, effective September 1, 1987.] (d) Concurrently with the supreme court, the court of appeals of a court of appeals district in which a person is restrained in his liberty, or a justice of the court of appeals, may issue a writ of habeas corpus when it appears that the restraint of liberty is by virtue of an order, process, or commitment issued by a court or judge because of the violation of an order, judgment, or decree previously made, rendered, or entered by the court or judge in a civil case. Pending the hearing of an application for a writ of habeas corpus, the court of appeals or a justice of the court of appeals may admit to bail a person to whom the writ of habeas corpus may be granted. History Enacted by Acts 1985, 69th Leg., ch. 480 (S.B. 1228), § 1, effective September 1, 1985; am. Acts 1987, 70th Leg., ch. 69 (S.B. 151), § 1, effective May 6, 1987; am. Acts 1987, 70th Leg., ch. 148 (S.B. 895), §§ 1.35, 2.03, effective September 1, 1987; am. Acts 1991, 72nd Leg., ch. 58 (H.B. 596), § 1, effective May 2, 1991; am. Acts 1995, 74th Leg., ch. 839 (H.B. 3073), § 1, effective September 1, 1995. LexisNexis ® Texas Annotated Statutes Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights reserved. Philip D. Alexander Tex. R. Civ. P. 198 This document is current through April 8, 2015 Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 9. Evidence and Discovery > B. DISCOVERY Rule 198 Requests for Admissions 198.1. Request for Admissions. --A party may serve on another party - no later than 30 days before the end of the discovery period - written requests that the other party admit the truth of any matter within the scope of discovery, including statements of opinion or of fact or of the application of law to fact, or the genuineness of any documents served with the request or otherwise made available for inspection and copying. Each matter for which an admission is requested must be stated separately. 198.2. Response to Requests for Admissions. (a) Time for Response. --The responding party must serve a written response on the requesting party within 30 days after service of the request, except that a defendant served with a request before the defendant’s answer is due need not respond until 50 days after service of the request. (b) Content of Response. --Unless the responding party states an objection or asserts a privilege, the responding party must specifically admit or deny the request or explain in detail the reasons that the responding party cannot admit or deny the request. A response must fairly meet the substance of the request. The responding party may qualify an answer, or deny a request in part, only when good faith requires. Lack of information or knowledge is not a proper response unless the responding party states that a reasonable inquiry was made but that the information known or easily obtainable is insufficient to enable the responding party to admit or deny. An assertion that the request presents an issue for trial is not a proper response. (c) Effect of Failure to Respond. --If a response is not timely served, the request is considered admitted without the necessity of a court order. 198.3. Effect of Admissions; Withdrawal or Amendment. --Any admission made by a party under this rule may be used solely in the pending action and not in any other proceeding. A matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. The court may permit the party to withdraw or amend the admission if: (a) the party shows good cause for the withdrawal or amendment; and (b) the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved by permitting the party to amend or withdraw the admission. Texas Rules Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. Philip D. Alexander VOLUME 1 No. _____________________ In Re CARLTON SEWELL, Relator RECORD OF CERTIFIED COPIES OF PLEADINGS, MOTIONS AND ORDERS TRIAL COURT CAUSE NO. P08-13106 IN THE ESTATE OF * IN THE COUNTY COURT * VELMA RUTH FITZGERALD * AT LAW OF * DECEASED * HOPKINS COUNTY, TEXAS INDEX 1. Certified copy of Application to Probate Will as Muniment of Title. 2. Certified copy of Order Probating Will as Muniment of Title. 3. Certified copy of Application for Probate of Will and for Letters Testamentary. 4. Certified copy of Opposition to Probate of Will. 5. Certified copy of Order of Transfer. 6. Certified copy of Opposition to Application for Probate of Will and for Letters Testamentary and Answer to Opposition to Probate of Will. 7. Certified copy of Amended Application for Probate of Will and for Letters Testamentary. 8. Certified copy of Motion for Withdrawal of Counsel. 9. Certified copy of Order Granting Motion for Withdrawal of Counsel. 10. Certified copy of Motion for Appointment of Independent Executor. 11. Certified copy of Order on Motion to Transfer Contested Probate Matter. 12. Certified copy of Order Appointing Personal Representative (Temporary) Pending Contest. 13. Certified copy of Notice of Appearance and Request for Notices and Service of Papers. 14. Certified copy of Affidavit (with attachment) of Frank Bauer. 15. Certified copy of Certificate of Written Discovery Directed to Chad Cable. 16. Certified copy of Supplement to Opposition for Probate of Will and for Letters Testamentary and Answer to Opposition to Probate of Will. 17. Certified copy of Motion for Withdrawal of Counsel. 18. Certified copy of Order on Motion for Withdrawal of Counsel. 19. Certified copy of Appearance of Counsel. 20. Certified copy of Certificate of Deemed Admissions. 21. Certified copy of Motion to Withdraw Deemed Admissions. 22. Certified copy of Contestants’ Response to Carlton Sewell’s Motion to Withdraw Deemed Admissions. 23. Certified copy of Affidavit in Support of Motion to Withdraw Deemed Admissions. 24. Certified copy of Order Denying Motion to Withdraw Deemed Admissions, Scheduling Summary Judgment Hearing and Requiring Mediation. ..--...... NO. tb~- /3 JQ/p ESTATE OF § IN THE COUNTY COURT OP.:: § VELMA RUTH FITZGERALD, § DECEASED § HOPKINS COUNTY, TEXAS:~' APPLICATION TO PROBATE WILL AS MUNIMENT OF TITLE TO THE HONORABLE JUDGE OF SAID COURT: Carlton N. Sewell applies to probate the Last Will and Testament of Velma Ruth Fitzgerald, deceased, as muniment of title, and shows the Court as follows: I. Applicant's domicile is in Hopkins County, Texas, where he resides at 107 Morris Drive, Sulphur Springs, Texas, 75482. He was the decedent's cousin. 11. Velma Ruth Fitzgerald died in Hopkins County, Texas, on December 31, 2007, at the age of eighty-six. At the time of her death, she was domiciled in Hopkins County, Texas, where she resided at 890 Camp Street, Sulphur Springs, Texas, 75482. 111. At the time of her death, the decedent owned real and personal property whose value applicant estimates to be less than $600,000.00. IV. The decedent died testate. Her Last Will and Testament was dated August 8, 2007. A copy of such Will is attached to this application and is incorporated herein for all purposes. The Will named Carlton N. Sewell as Independent Executor of the Will. The said Carlton N. Sewell resides in Hopkins County, Texas. The subscribing wit- nesses to the Will were Vicki Latimer, who is a resident of Hunt County, Texas, and Tiffamy Bassham, who is a resident of Hopkins County, Texas. TRUE AND CORRECT COPY OF ORIGINAL - :/· S CFFICE APPLICATION TO PROBATE WILL AS MUNIMENT OF TITLE - 1 V. The Will does not name the state or a governmental agency of the state as a de- vi see. VI. No child or children were born to or adopted by the decedent after she made the aforesaid Will. She was never divorced. VII. The only debts of the Estate remaining to be paid are current bills for which the funds of the Estate are more than adequate. There are no other debts of the Estate remaining unpaid, exclusive of debts secured by liens on real estate. The subject Will devises and bequeaths all of the decedent's Estate to her cousin, Carlton N. Sewell, who is the applicant, and contains no special provisions requiring administration. There is no necessity or reason, therefore, for administration of the decedent's Estate. WHEREFORE, applicant asks that citation be issued to all parties interested in this Estate as required by law, that the aforesaid Will be admitted to probate as muni- ment of title, and for such other and further orders as the Court may deem proper. Ra mond R. John on B r No. 107810 P. 0. Box 522 Sulphur Springs, Texas 75483-0522 Telephone 903-885-8691 Telefax 903-885-8692 Attorney for Applicant :, _,.;, __. . i .- : ,~)j COPY OF ORid;'JAl . FILED IN HOPKINS .!';~~ '.'/~Of"\'<-.;; COUNTY CLERK'S OFFICE · .. , ... - APPLICATION TO PROBATE WILL AS MUNIMENT OF TITLE - 2 JLast WiU anb ~estament of '.lJelma l\utb jfit~geralb STATE OF TEXAS § COUNTY OF HOPKINS § KNOW ALL MEN BY THESE PRESENTS: That I, VELMA RUTH FITZGERALD,' a resident of Hopkins County, Texas, being of sound and disposing mind and memory and above the age of eighteen years, do hereby make, publish and declare this to be my Last Will and Testament, hereby revoking all prior Wills, if any, made by me. I. I direct that my just debts, funeral expenses and all taxes due as a result of my death, as well as the costs and expenses of the administration of my estate, be paid as soon as practicable without the unnecessary sacrifice of any of the properties of my estate. IL All of the rest, residue and remainder of my estate, real, personal and mixed, of whatever nature, wherever situated and however acquired, which I may own or have any interest in at the time of my death, I give, devise and bequeath unto my cousin, CARLTON N. SEWELL, in fee simple forever. III. lfmy cousin, CARLTON N. SEWELL, has predeceased me, or ifhe should die before the expiration of ninety days following the day of my death, then I give, devise and bequeath one-half of the rest, residue and remainder of my estate unto his wife, MARY J. SEWELL, and the other one-half unto my cousin, TRUITT L. SEWELL, the brother of CARLTON N. SEWELL, share and share alike, in fee simple forever. IV. In the event CARLTON N. SEWELL dies as set out above and in the event either the said MARY J. SEWELL or TRUITT L. SEWELL has predeceased me or dies before the expiration of ninety days following the day of my death, leaving a descendant or descendants who survive my death and her or his death, then I give, devise and bequeath unto such descendant or descendants per stirpes, in fee simple forever, the share which the decedent, MARY J. SEWELL or TRUITT L. SEWELL, would have otherwise received, the division of which shall be determined as if the deceased beneficiary had predeceased me. If.either the. said MARY J. SEWELL or TRUITT L. SEWELL has predeceased me or dies befQ_i:cpka: FebruMY" 200I _,:;,..:.ivot:1y, . TRUE AND CORR'E·CT 'V~o..,, - ·,,_J\~ ( \~ )co COPY . OF ORIGINAL , , /;\ · F!LED JN HOPK!f\JS }) ~:: .· F,efQre the expiration of ninety days following the day of my death and leaves no des~i:Xidant who survives my death and her or his death, then I give, devise and beque th in foe simple forever the share which 'c~o.., TRUE AND CORRE; CT . _/1_ ·)~ COPY.-OF ORIGINAL '. . ;/~ ;; FILED IN HOPKJNS ·. ·· . _;5~Y, m!;zNTY CLERK'S CFFICE Last Will and Testament of VELMA RUTH FITZGERALD -1 V /f ~ MARY J. SEWELL or TRUITT L. SEWELL would have received unto the survivor between MARY J. SEWELL or TRUITT L. SEWELL, and per stirpes to the descendant or descendants of a deceased beneficiary, whose share or shares shall be determined as if the deceased beneficiary had predeceased me. v. I hereby nominate and appoint CARLTON N. SEWELL, and if he is unable to serve, then MARY J. SEWELL, and if she is unable to serve, then TRUITT L. SEWELL, Independent Executor or Independent Executrix of this my Last Will and Testament, and direct that no security be required of any of them as such Independent Executor or Independent Executrix and that no other action be had in the administration of my estate than to probate and record this Will and return an inventory and list of claims as required by law. IN TESTIMONY WHEREOF, I have hereunto subscribed and signed these presents in the presence of the witnesses whose names are affixed hereto and whom I have requested to sign their names hereto as witnesses, and in the presence of said wit~esses I have declared and published the foregoing as my Last Will and Testament on the /1 L day of August, 2007. The foregoing was on this day signed by VELMA RUTH FITZGERALD in our presence and in the presence of each of us, and at the time ofher subscribing said instrument she declared that it was her Will, and at her request and in her presence, and in the presence of each other, we have subscribed our names as witnesses thereto on the J. £1: day of August, 2007. ~ TRUE AND CORRECT .'.·./-.,, ,·,·\:.u'j\ COPY 9F ORIGINAL " FILED !N HOPr E ANO CORRECT "* .'~l~ ·: ,~0f:. .,. h C.OPY OF ORIGINAL FILED JN HOPKINS 2 'v!· cl-~ CQI '-'1.?:°2f'" Uf\JTY CLEW<'S CFFICE the deceased at the time of the execution of the instrument in question, and the deceased would not have executed that instrument but for that influence. This undue influence was exercised in the following manner: The evidence will show that Carlton Sewell and his agents were systematically engaged in gaining psychological control of the Decedent through a scheme of telling Decedent untrue statements concerning her family members, the nature of her estate and her living circumstances. By sequestering the Decedent from her other family members and even, on two occasions, physically threatening and assaulting other family members, Carlton Sewell prevented contact with the Decedent that might have endangered his goal of absconding with the estate. Contestants will show that in furtherance of his greedy plan, Carlton Sewell utilized the Decedent's power of attorney to convert certain of Decedent's assets to his own benefit prior to Decedent's death. VII. Contestants have joined in the filing of Decedent's true and lawful will dated April 26, 1993, along with this opposition and respectfully request the admission to probate of that will contemporaneous with setting aside the offending will. WHEREFORE, Contestants request that upon trial hereof the instrument offered by proponent Carlton Sewell be set aside, and that in the interim the Order Probating Will as a Muniment of Title be withdrawn. Contestants pray for such other and ¥her relief as the Court may deem proper. THUE AND CORRECT COPY OF ORIGINAL FILED IN HOPKINS 3 COL) S CFFICE Respectfully submitted, Chad Cable State Bar No. 03575300 323 Gilmer St. Sulphur Springs, Texas 755482 Telephone (903) 885-1500 Telecopier (903) 885-7501 Attorney for Contestants 4 =============================;;~;;=~;=;~================================= II ~~ ============================================================================ &'~IJI TO ALL PERSONS interested in the estate of FITZGERALD, VELMA RUTH DECD STANLEY, JANET NEAL has filed in the County Court of Hopkins County, an application for the Probate of the Last Will and Testament of said FITZGERALD, VELMA RUTH DECD said will filed I on 30th day of January , 2008 with said application, and for Letters Testamentary. The file number of such application and the Probate Docket Number ~ being No. P08-13106. ALL PERSONS interested in said estate ARE CITED TO APPEAR in the County Court of Hopkins County, Texas, in the Courthouse thereof at or before 10 o'clock a.m. on the first Monday after service is perfected by the completion of such posting, which is the 11th day of February , 2008 to contest said application if they desire to do so, by filing opposition in writing. The name and address of the attorney for applicant, or the address of applicant is: CHAD CABLE 323 GILMER STREET SULPHUR SPRINGS, TX 75482 The officer executing this citation shall post the copy of this Citation at the Courthouse door of. the County in which this proceeding is pending, or at the place in or near sai.dcourthouse where public notices customarily are posted, for not less'than lOdays before the return day thereof, exclusive of the date of posting ahd return the original copy of this Citation to the Clerk stating i.n a written return thereon the time and place where he posted such copy .. GIVEN UNDER MY HAND AND OFFICIAL SEAL, at Sulphur Springs, Texas 31st day of January 2008 . V:J DEBBIE SHIRLEY, COUNTY CLERK I"" !II f! ,/i!! ~~ ADDRESS · OF CLERK: DEPUTY P. 0. BOX 2 8 8 j i! li; --. , ;:~J:f! SULPHUR SPRINGS, TX 75483 1::;> ~, SHERIFF'S RETURN · 2; _:~7fj Came to hand on 1-30-2008 at 4~/I o'clock, _£_ M. and executed on 1-30-2008, by posting a copy of the within Citation for ten days, exclusive of the day of posting, before the return day hereof. At the place in or near the Courthouse of Hopkins County, Texas, where public notices customarily are posted. ,~o'° TRUE AND CORRECT · ~~ COPY OF ORIGINAL CHARLES (BUTCH) ADAMS, SHERIFF ~;))i{r;J''i~: ~~EL~~~~~~~~~~\'S OFFICE H~~ B, EPUTY /):>;~ o JY / X -;; l /i/ i-0I l )/ l CAUSE NO. if 1 ,I ( \ -- I ....J v',r IN THE ESTATE OF ) IN THE COUNTY COURT ) ) ) ) HOPKINS COUNTY, TEXAS ORDER OF TRANSFER >- 0ntlfe14th day of February, 2008, the County Court of Hopkins County Texas transfers the above-entitled cause to the County Court at Law for the purpose of hearing any and all contested matters. Judge A!J'y SMith .,...Cl 'C !l\'.JL_ AND··. I ro· RRECT v SOPY OF ORIGINAL FILED IN HOPKINS COUNTY CLERK'S OFFICE Ff LED F NO. POS-13,106 ', ' nnR Fen Z..,_.;JU LO 1L PM Li= 09 ~ ESTATE OF § IN THE COUNTY COURT VELMA RUTH FITZGERALD, § § L •. L:'i:;: :~. /~{iRk'·. DECEASED § HOPKINS COUNf,r,TEXAS ricnp~·- ---:::-·------ tit_,- i_J ! y OPPOSITION TO APPLICATION FOR PROBATE OF WILL AND FOR LETTER TESTAMENTARY AND ANSWER TO OPPOSITIDNTO PROBATE OF WILL TO THE HONORABLE JUDGE OF SAID COURT: CARLTON SEWELL, for the purpose of opposing the Application for Probate of Will and For Letters Testamentary, filed January 30, 2008, by Janet Neal Stanley, and further for the purpose of answering the Opposition to Probate of Will filed on January 30, 2008, by Truitt Sewell, et al, furnishes the following information to the Court: I. Carlton Sewell is the Independent Executor named in the Last Will and Testament of Velma Ruth Fitzgerald, executed by Ms. Fitzgerald on the 8th of August, 2008 1• Mrs. Fitzgerald passed away on December 31, 2007. Application to pro bate the above referenced Last Will and Testament was filed on January 2, 2008. The County Court for Hopkins County, Texas, hearing probate matters, issued an order probating the will as a muniment of title on January 15, 2008. II. Citation was served and returned in the manner and for the length of time required by law, and no objection to the subject application was made or filed. III. The Opposition to Probate of Will filed by Truitt Sewell, et al, was filed on January 30, 2008, 1 This will expressly revoked all prior wills,-fuciuding but not linlited to the will purportedly executed by the decedent on or about April 26, 1993, which the opposing parties sponsor and seek to have admitted to probate. OPPOSITION TO APPLICATION FOR PROBATE OF WILL AND FOR LETTERS TESTAMENTARY , ~y.1'1 OF;;. TRUE AND CORRECT -PAGE 1- (J~o,,., ;!( & .. , ~* l~ COPY.OF ORIGINAL FILED IN HOPKINS '~oF~.f'. COUNTY CLER!<'S OFFICE and was thus not timely filed and should be stricken. The Application for Probate of Will and For Letter Testamentary filed by Janet Neal Stanley was also filed on January 30, 2008, and was thus not timely filed and should be stricken. IV. Carlton Sewell denies the allegation that the decedent lacked testamentary capacity when she executed the will which has already been ordered probated as a muniment of title. Further, Carlton Sewell denies the slanderous allegation in the above-referenced parties' pleadings that Velma Ruth Fitzgerald's last will and testament, dated August 8, 2008, was executed as the result of undue influence exerted over the decedent by Carlton Sewell and his agents. v. Carlton Sewell prays for reimbursement of attorney's fees and costs as allowed under section 243 of the Texas Probate Code WHEREFORE, Carlton Sewell requeststhattheoffendingwilloffered by Janet Neal Stanley be set aside by virtue of the later executed will which revoked it and because such filing was untimely. Additionally, Carlton Sewell requests that the Opposition to the Probate ofthe Will filed by Truitt Sewell, et al, be set aside as being untimely filed and void. Carlton Sewell further prays for such other and further relief as the Court may deem proper. Respectfully submitted, LAW OFFICE OF EDDIE NORTHCUTT P.O. Box 308 1331 South Broadway Sulphur Springs, Texas 75483-0308 Tel: (903) 885-7577 Fax: (90 85-7579 By~·':.p--_;_~__,..,,_.~+--d-~--=--'-"'-~~~~~- Eddie No .cutt · State Bar No. 24 26456 Attorney for Defendant OPPOSITION TO APPLICATION FOR PROBATE OF WILL :_~.o TRUE AND CORRECT AND FOR LETTERS TESTAMENTARY -PAGE2- '( "'f'? )~ COPY OF ORIGINAL \ ~* FILED IN HOPKINS .J>~lioF'f0~ COUNTY CLERK'S OFFICE CERTIFICATE OF SERVICE I certify that on February 14, 2008 a true and correct copy of the Opposition to Application for Probate of Will and For Letters Testamentary and swer to 'Position to Probate of Will was served on Chad Cable by facsimile 903-885-750 / /, , OPPOSITION TO APPLICATION FOR PROBATE OF WILL AND FOR LETTERS TESTAMENTARY -PAGE3- TRUE AND CORRECT COPY OF ORIGINAL FILED IN HOP! AMENDED APPLICATION FOR PROBATE OF WILL:J.J = --n AND ~ () = = ::ii: ) ;;2,~ ~.:r.; ~ --· -:-c::; FOR LETTERS TESTAMENTARY ; ,. ?O --n Pl I CJ li -- c:> ') ' JANET NEAL STANLEY, applicant, for purpose of probating the written will of VELMA RUTH FITZGERALD, deceased, and for issuance of letters testamentary, furnishes the following information to the Court: I. Applicant is interested in this estate and is an individual residing at 608 Willowood Lane, Lancaster, Dallas County, Texas 75134. IL Decedent died on December 31, 2007, in Sulphur Springs, Hopkins County, Texas, at the age of eighty six (86) years. III. This Court has jurisdiction and venue because deceased was domiciled and had a ·--~~ ...... fi)red_p!ace of residence in this county at the time of death. ·-~~ IV. Decedent owned personal and real property is excess of $600,000.00. TRUE AND CORRECT COPY OF ORIGINAL 1 FILED IN HOPKINS cc:; CLER'.<'S OFFICE V. Decedent executed a will dated April 26, 1993, a copy of which is attached to this application as "Exhibit A". The original of the April 26, 1993 will has not been located but is believed to have last been in the possession of Carlton Sewell who is the applicant in a competing application. In that competing application, Carlton Sewell sponsors a will which applicant herein together with other interested parties are contesting. VI. Decedent's will named your applicant's mother, Sue Neal, as independent executrix and Woodrow Wells as an alternate. Sue Neal is incapacitated and Woodrow Wells is deceased. Applicant is willing to serve as Executrix, is not disqualified and is the choice of the other interested devisees aligned with her. VII. As shown in "Exhibit A", an original of the April 26, 1993 will would be self- proving if found. Absent that, applicant will prove that the will was executed by Decedent. VIII. No child was born to or adopted by Decedent during her lifetime. Decedent was a widow at the time of her death. TRUE AND CORRECT COPY OF ORtGINAL 2 FILED !f\! HOPK!f\.!S IX. The names and addresses of the devisees and their relationships to Decedent are as follows: 1. Thru the Bible Radio Network is an organized ministry located at 1095 East Green Street, Pasadena, California 91106. 2. Nicholas Ryan Maryol is a nephew of decedent who may be contacted in care of the Law Offices of Chad Cable, 323 Gilmer Street, Sulphur Springs, Texas 75482. 3. Crestview Baptist Church was an organized ministry located in Dallas, Texas, which may no longer exist. 4. . Lillian Sewell was an aunt of decedent but is deceased. Under the terms of the will her share would pass to her issue, or the heirs of those children not surviving. Lillian Sewell's children or their respective heirs are as follows: a) Carlton Sewell 107 Morris Drive Sulphur Springs, Texas 75482 b) Truitt Sewell 210 Sewell Lane Sulphur Springs, Texas 75482 c) Truman Sewell is deceased. His children are: (1) Anita Counts 320 Craig Street Sulphur Springs, Texas 75482 (2) Troy Sewell 1032 N. Davis Street Sulphur Springs, Texas 75482 d) O.C. Sewell is deceased. His child is: (1) Linda Dry 6700 Tenderfoot Ave. Firestone, CO 80504 e) Royce Sewell is deceased and had no children. TRUE ,A.ND CORRECT COPY OF ORIGlf\J.AL 3 5. Sue Neal is a surviving aunt whose address is in care of Janet Neal Stanley, 608 Willowood Lane, Lancaster, Texas 75134. 6. Alleen Neal is a aunt whose address is 2603 Lake Ridge Road, Red Oak, Texas 75154. 7. Woodrow Wells was an uncle of decedent but is deceased. His five children are: a) Robert Wells 101 Lassater Red Oak, Texas 75154 b) Harold Wells 714 Wayne Lee Lancaster, Texas 75146 c) Tracy Wright 2241 Mont Claire Lancaster, Texas 7514~ d) Cynthia Terrell 920 Sycamore Lane Lancaster, Texas 75146 e) Nick Wells 101 Mabry Lane Red Oak, Texas 75154 8. Melanie Wells is a surviving cousin of decedent whose address is 6729 Lake Circle Drive, Dallas, Texas 75214. X. The original will provides that no action be had or taken by the Probate Court other than probating the will and filing an inventory and appraisement of the estate and a list of claims. XL Neither Texas, nor any governmental agency of Texas, nor any charitable organization is named in the will as a devisee. 4 ''' WHEREFORE, applicant requests that citation be issued to all persons interested in this estate as required by law, that the will be admitted to probate, that letters testamentary be issued to applicant and that such other and further orders be made as the Court may deem proper. Respectfully submitted, Chad Cable State Bar No. 03575300 323 Gilmer St. Sulphur Springs, Texas 755482 Telephone (903) 885-1500 Telecopier (903) 885-7501 Attorney for Applicant and Contestants H~JE /-\ND CORRECT COPY OF ORiGiNAL 5 FILED IN HOPl ~ J \ : -: ;:::; •• Green Street, Pasadena/ Cal\fornia 91106; 2. Subject to the Trust/ provi\~'ii.ons of Paragraph V, $25, 000. ~~ ~; ·~ i \ to NICHOLAS RYAN MARYOL to help\with his college education; \ ""~ ....~ 3. $10,000.00 to CRESTVIEW BAPTIST CHURcH., Dallas, Texas. ) ''., III. \ All the rest and re~idue of my estate, ;'e\al, personal or mixed, \ of every character, of which I may die seized and possessed, or \ to which I may be ent tled at or after my de"ath, I hereby give, \ \ devise and bequeath, in\ equal shares to L JLl.,IAN; SEWELL , SUE NEAL, ALEEN NEAL, WOODROW WELLS, and MELANIE WELLS; share and share alike, [ ::; ;"r;R'ECl~ COPY OF ORiGlliAL Fl.LED IN HOPKINS COUNTY CLER!-\'S OFFICE provided that if any of my named devisees die before me leaving issue surviving, then such deceased devisee's share shall be distributed to his, her or their issue, such idsue taking per stirpes and not per capita. IV. /I I / If any beneficiary or beneficiaries under this Will, and I, f ! should die in a common accident 9r disaster, or under such circumstances that it is\ doubtful w;h1ch of us died first, or within thirty (30) days of my ~eath, /~.\Jjn all of the provisions of this Will shall take effect ~ \ like f manner as if such beneficiary or I I ' I beneficiaries had predeceas~d1me. \ / v ' I v. In the event, NICHOL~b\ RYAN MARYOL has not reached to age of eighteen (18) years, f tjereby 1 l give, devise and bequeath the portion of my estate her~~n ~equeathed to him, to SUE NEAL, such f \ person to hold such es/ate\ as Trustee and manage and control same as a Trust Estat~f for\ NICHOLAS RYAN MARYOL, with al 1 of the rights and power~ and\ subject to all the limitations I \ hereinafter enumerated }or the tollowing uses and purposes: A. I direct my \Trustee frQm the income of such Trust, and so \far as neces's.~ry from the principal thereof, to p*ovide for tfr~ heal th and welfare of the benef:f,ciary of sud1 Trust so created as his needs I dictate, sua,h expenditures to be in the solE:? discretion of my said Trustee. Such expenditures may only o,e made in one of the following w4ys: \ \ \ \ \ 1) Directly to the petson\ or orgariization furnishing the medical care br /~ducation for ',' such beneficiary;· TRUE AND RRECT COPY OF ORiGii•Jf\L FILED iN HOP~\if\JS COU CLJ2RK'S CFF!CE 2) To the natural guardian or legally appointed guardian based tJ':t}on ' receipts for actual expenditures for the ~~nficiary; or 3) Directly to such beneficiary~ B. I authorize and empower ~yTrustee to sell, exchange, assign, trans/fer and convey any security or property, r~al or personal, which is a part of such Trus 1t Estate, at public or private sale, at such t'ime and price and upon such terms and conditjons, including credit, as my Trustee may deterrrtine. I further authorize my Trustee to incur ¢uch expenses or charges in the management of /such Trust Es ta te as my Trustee shall\ see fi;t, and to pay taxes and other charges fbr gov,rnmental assessments. 1 I C. Any Trust crea t:ed /herein shal 1 be governed, by the prov1s1ons cif the Texas Trust Act, in effect at my death/ except as herein otherwise provided, and I\ ~ereby give, to the Trustee all of the author~~y and powers in administering the said Trust ~,s is provided by said Texas Trust Act. The /'i\rustee shall not be required to give bond f~ \the management of the Trust, nor .shall the ·.yrus,tee be liable for any error of Judgment, or fbr any acts done, or steps taken or omi tt~d, \.mder the advise of counsel, or for any misJtake \of fact or law, or for any thing my Trus~be might do or refrain from doing in good faith j \ D. The Trustee /shall not recognize any transfer, I ' mortgage, pledge, \ or assignment of any beneficiary /by way \of anticipation of income or principa11J.. The 1\ income and principal of any Trust mereunder . shall not be subject to transfer by operatio~ of law, and shall be exempt from the claim~ of creditors or other claimants, ;' and from ot'~ers, decrees, levies, attachments, garnishmen~s, executions, and other lega~ and equitable\process or proceedings to the ful~est extent perm~ssible by law. \ I ' \ E. The Trust shall continue. during the lifetime of the beneficiary of such Trust, and until UE AND CORRECT COPY OF ORiC';!NAL FILED IN HOP! t r-i Page 1 COPY OF ORi(;:; L,L. FILED !N HOPKiNS COUNTYCLERK'S CFFICE Certificate of Service I certify that a true copy of the above was served on CARLTON SEWELL, 6940 TX Hwy. 11 E, Sulphur Springs, TX 75482; and CHAD CABLE, 858 Gilmer, Sulphur Springs, TX 75482, in accordance with the Texas Rules of Civil Procedure on April d, 2013. Frank Bauer TRUE AND COFZRECT Page2 COPY OF OF~iG!~lAL FILED IN HOPKif'1S · COUNTY CLERK'S CFFICE J IN THE ESTATE OF No. POS-13106 § IN THE COUNTY COURT AT LAW VELMA RUTH FITZGERALD, § OF DECEASED § HOPKINS COUNTY, TEXAS ORDER ON MOTION FOR WITHDRAWAL OF COUNSEL On y)90 , 2013, the Court considered the Motion for Withdrawal of Counsel of Frank Bauer. The Court finds that good cause exists for withdrawal of Frank Bauer as counsel. The Court finds that the withdrawal of Frank Bauer is not sought for delay only. IT IS THEREFORE ORDERED that Frank Bauer is permitted to withdraw as counsel of record for CARLTON SEWELL in this case. SIGNED on 4--'--+-"fd3~--' 2013. I-" .....( = ·;:1-n '-'-' :--::::r= \ ::;::>- -0 -::0 -~rn ,_;10 r0 \ w \ u ~ 0 ::> w .'Jl ORDER ON MOTION FOR WITHDRAW AL - day of May, 2010. 1L Certified mail/Return receipt requested Telecopier (fax) Federal Express Courier with Receipt Registered mail/Return receipt requested Regular Mail Personal Hand Delivery Date: Mai~ 2010. CHAD CABLE CONTESTANTS' FIRST REQUEST FOR ADMISSIONS REQUEST FOR ADMISSIONS 1 ADMIT or DENY That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her will. RESPONSE: 2. ADMIT or DENY That throughout the spring and summer of2007, Velma Ruth Fitzgerald was physically and mentally weak enough to be susceptible to undue influence. RESPONSE: 3. ADMIT or DENY That you influenced Velma Ruth Fitzgerald to the point of subverting and overpowering her mind so that she would execute a new will naming you as sole beneficiary which she would not have done but for your influence. RESPONSE: 4. ADMIT or DENY That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having contact with her as part of your scheme to exert undue influence over her. RESPONSE: 5. ADMIT or DENY That one of your techniques for exerting undue influence was to feign romantic love for Velma Ruth Fitzgerald in a seducing manner by physical affection and full on the mouth kissing. RESPONSE: 6. ADMIT or DENY That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald to change her will to benefit the two of you. RESPONSE: 7. ADMIT or DENY That you told the White brothers in Vernon that Velma Ruth Fitzgenlld was not competent when she signed their lease contract. RESPONSE: o~ +°-<> ur:s:-;:,Y..iY TRUE Af\JD CORRECT ~,,-g; "-' -t: COPY OF ORIGINAL FILED IN HOPf CHAD CABLE LAWYER 323 GILMER Sm..PHUR SPRINGS, TEXAS 75482 TELE.COPIER: (903) 885-7501 TELEPHONE: (903) 885-1500 May 13, 2010 Via Certified Mail 7005 1820 0007 7656 6578 Return Receipt Requested & Regular Mail Mr. Carlton Sewell 107 Morris Drive Sulphur Springs, Texas 75482 RE: Cause No. P08-13106 Estate of Velma Ruth Fitzgerald, Deceased Hopkins County, Texas Dear Mr. Sewell: Enclosed are the following: 1. Motion for Appointment of Independent Executor; and 2. Order Setting Hearing. Sincerely, SENDER: COMPLETE THIS SECTION ~e.~ o:i~ecy :;~plete • Complete items 1 2 d 3 Al , • 4 if Restricted is . s~~h~iur name and address on the ~verse . • A.tt . . can return the card to vou ach t s card to th b k J · • or on th front i"f e ac of the mailpiece, space permits. Mr. Carlton Sewell 107 Morris Drive Sulphur Springs, Texas 75482 3. ::/ervice Type fr rtl-certified R . eg1stered Mail O Express Mail D Return Recel. f fa . . .. . D Insured Mail 0 C.O.D. P · . r Merchapd1se 4. Restricted Delivery? (Extra Fee'~ DYes 2. Article Number 7005 S CFF!CE (Transfer from service label) 'S Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 CHAD CABLE LAWYER 323 GILMER SULPHUR SPRINGS, TEXAS 75482 TELEPHONE: (903) 885-1500 TELECOPIER: (903) 885-7501 May 13, 2010 Via Certified Mail 7005 1820 0007 7656 6578 Return Receipt Requested & Regular Mail Mr. Carlton Sewell I 07 Morris Drive Sulphur Springs, Texas 75482 RE: Cause No. POS-13106 Estate of Velma Ruth Fitzgerald, Deceased Hopkins County, Texas Dear Mr. Sewell: Enclosed is the following: I. Request for Admissions Sincerely, Chad Cable CC/lar Enclosures ''.\ NO. POS-13106 IN THE ESTATE OF § IN THE COUNTY COURT § VELMA RUTH FITZGERALD, § AT LAW OF § DECEASED § HOPKINS cou,~TY, TE~S 23 : 4.1'1 :s.:.,, MOTION TO WITHDRAW DEEMED ADMISSION$ n::::i ...,., ::.~r= j ~~~! :;;;: i~ci . COMES NOW, Carlton Sewell, and moves the Court for an orderpertjiittin~~th~w~~ i - I. FACTS 1. This case was commenced on January 2, 200 8 by Movant' s filing an "Application to Pro bate Will (of Velma Ruth Fitzgerald, dated August 8, 2007) as a Muniment of Title". 2. Said Application was heard by the Judge of the County Court of Hopkins County, Texas on January 15, 2008 which resulted in said Will being admitted to probate as a muniment of title. 3. On January 30, 2008, Janet Neal Stanley filed a competing Application to probate a Will executed on April 26, 1993 by Velma Ruth Fitzgerald. 4. Both sides filed respective oppositions to the probate applications filed. 5. On February 14, 2008, the "\iVill contest" was transferred to the Hopkins County Court at Law by order of the County Judge of Hopkins County. 6. Representing Carlton Sewell in the "Will contest" was the Honorable Eddie Northcutt and representing Janet Stariley et al was the Honorable Chad Cable. Mr. Northcutt filed an opposition to Janet Stanley's opposition to probate on February 14, 2008. 7. As part of the discovery performed in the case, the oral deposition of Carlton Sewell was taken by Chad Cable on May 13, :2008. Eddie Northcutt was present during the deposition. Regarding discovery in the case, there was no Discovery Control Plan entered by the Court. That being the case, the applicable Disdovery Control Plan for this probate matter is TRCP 190.3, where MOTION TO WITHDRAW DE~MED ADMISS~. TR. UE AND CORRECltage 1 of 9 . ' . ,:-'~ W. COPY OF ORIGINAL 1-"'\ /;,"1 FILED IN HOPKINS ,, . _;(:'./ ~;~.-' (°' ;..-, ; ! HT'J ('; c: C) V'S v ._J ;: \\ I 1 '-~ ;. - L_ • \I \.. !,_... c FFICE ,J - discovery is mandated to be completed no later than nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery. The deposition of Mr. Sewell on May 13, 2008, was the commencement of the discovery period. 8. On January 23, 2009, the Court signed an order allowing Eddie Northcutt' s withdrawal from the representation of Carlton Sewell. 9. On June 17, 2010, Carlton Sewell retained the services of the Honorable Frank Bauer to represent him in the "Will contest". 10. In the interim between the withdrawal of Eddie Northcutt and the engagement of Frank Bauer's services, it appears that on May 13, 2010, Chad Cable served Requests for Admissions on Mr. Sewell, who, at the time, was acting prose. A true copy of the Requests for Admissions are attached hereto as Exhibit "A". 11. Carlton Sewell did not respon~ to said Requests for Admissions. 12. The parties tqereafter continued to engage in various forms of discovery, i.e., Requests for Disclosure, Interrogatories, Requests for Production, and additional depositions. 13. On April 22, 2013, Frank Bauer filed a motion to withdraw from the representation of Carlton Sewell. An order allowing Mr. Bauer's withdrawal was signed by this Court on April 23, 2013. I 14. In July, 2013, Carlton Sewell retained the services of J. Brad McCampbell, attorney, to represent Mr. Sewell in the matter. Mr. McCampbell's representation continues to date. 15. Since being engaged by Mr. Sewell, Mr. Mccampbell began preparation to try this case in front of a jury. This case was set on various jury dockets only to be continued each time. 16. On January 12, 2015, the case was finally set to commence with jury selection at 1:00 p.m. At 9 :20 a.m. on January 12, Chad Cable filed a document titled "Certificate of Deemed Admissions" notifying the Court. of the failure of Carlton Sewell to respond to the Requests for Admissions submitted by Mr. Cable over 4Vz years before. . /:~:-:-~-~·~·~ UE AND CORr:.-- FILED IN HOPf\INS , COUNTY CLEHK'S CFFICE 17. Neither Frank Bauer nor J. Brad McCampbell knew of these existence of these request for admissions until the filing of the Certificate of Deemed Admissions by Mr. Cable literally hours before jury selection. Based on that filing, this Court excused the jury panel prior to commencement of trial and has allowed Mr. McCan1pbell time to file this Motion for Withdrawal of Deemed Admissions. II. ARGUMENT Rule 198.3 of Tex. R. Civ. P. states in part: ... A matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. The court may permit the party to withdraw or amend the admission if: '(a) the party shows good cause for the withdrawal or amendment; and (b) the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved by permitting the party to amend or withdraw the admission. See Tex. R. Civ. P. 198.3; see also Wal-mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 356 (Tex. 1998). Subsections (a) and.(b) of 198.3 provide the requirements for one seeking withdrawal of deemed admissions. Breaking those requirements down, one seeking withdrawal must show: (1) good cause for the withdrawal; (2) that such withdrawal will not unduly prejudice the party relying on the deemed admissions; and (3) that the merits of the case will be benefitted or promoted by permitting the withdrawal. In support ofMovant's request for withdrawal, Movant shows: 1. At the time of delivery of the requests for admissions, Mr. Sewell was not represented by counsel. Representing himself pro se, Mr. Sewell did not have (ill understanding ofthe consequences of not responding to the requests. Interestingly, during Eddie Northcutt's approxiinate one (1) year .. ·~:r:,-;-.. . MOTION TO WITHDRAW DEEMED ADMISSiO~,\ . .· '\ 7 )z; r~,_,op\J.·:EY Or-~.f\lfl.-:.:.·CC.'lHREC:ffage Oi~IGiNAL 3 of 9 · '·>·-~,;;~ FlLED.!NHOVi\!NS fJ FILED IN :-:oPKINS : ., ·-t££:S" COUf'~TY CLcRK'S OFFICE The Court found that because Deggs was not dependent on the deemed admissions for developing her theory of the case, she would not be unduly prejudiced if the deemed admissions were withdrawn.) Sewell's position was in direction contradiction to the deemed admissions. The tenor of the requests for admissions was to seek admissions from Mr. Sewell that he unduly influenced Ms. Fitzgerald in her execution of the 2007 will and/or that Ms. Fitzgerald lacked testamentary capacity to execute the 2007 will. At the time of his deposition, Mr. Sewell' s testimony and Mr. Sewell's pleadings on file clearly put Mr. Cable's clients on notice that the requests for admissions were not uncontroverted matters, and that they could not reasonably rely on the admissions in lieu of other discovery. Of note, Mr. Sewell' s "Opposition to Application for Probate of Will and for Letters Testamentary and Answer to Opposition to Probate Will", filed by Eddie Northcutt on February 14, 2008, over two years before the requests for admissions, denies Mr. Cable's clients' allegations that Decedent lacked testamentary capacity and that Mr. Sewell exerted undue influence over Decedent. 5. It is interesting that after the deadline for Mr. Sewell's response to the requests for admissions, Mr. Cable did not file a motion for summary judgment based on the deemed admissions which, if allowed to stand, essentially "gut" Mr. Sewell' s case. In fairness, our rules do not mandate that a motion for summary judgment be filed in this instance. However, Mr. Cable, on behalf of his clients, engaged in more discovery and allowed Mr. Sewell's subsequent counsel to engage in more discovery and preparation for the jury trial in this case. In effect, Mr. Cable's chosen course allowed Mr. Sewell to hire not one but two more attorneys, spending thousands of dollars in preparation for trial only to be presented with "deemed" admissions on the morning of trial over 4llz years after the fact. 6. Movant's counsel respectfully submits that Mr. Cable's holding these deemed admissions "close to the vest" only to spring them on opposing counsel on the day oftrial is inequitable and constitutes ''trial by ambush". Movant is not asking the Court to co'ndone his failure to respond, but asks the Court consider in fairness allowing withdrawal of the admissions and letting this case proceed to trial on the merits. Based on the above, Movant believes he has presented a showing of "Good Cause". "Good cause" is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). Since Mr. Sewell's position is and always has been so contrary to the deemed admissions, it is clear that the failure to respond to them was not intentional or the result of conscious indifference on his part. It is the position of Mr. Sewell that while the signature on the green card to the certified mailing of the Requests for Admissions appear to be his, he does not have recollection of the document nor has he been able to locate said document. 7. Furthermore, allowing withdrawal of the deemed admissions will not unduly prejudice Mr. Cable's clients for the following reasons: a. Regardless of the discovery deadline, Mr. Cable has conducted discovery, i.e., depositions, requests for disclosure, interrogatories, and requests for production, on behalf of his clients; b. If it is Mr. Cable's position that he would have conducted additional discovery but for the deemed admissions and based on any agreed or extended discovery deadline, he has had over 41;2 yeaFs to conduct same. SeeEmployer 's Ins. of Wausau v. Halton. 792 S.W.2d 462, 467 (Tex. App. - Dallas, writ denied) (finding lack of prejudice when the opposing party had almost a month to conduct additional discovery); c. This case has been pending with both sides either requesting or agreeing to the several continuances thus far in this case; d. Again, Mr. Cable did not seek to end the case by the usual method, motion for . summary judgment, based on the deemed admissions. The term "prejudice" does not include the fact that, if the admissions were withdrawn, the party who obtained that admission would then have to convince the factfinder of its truth. See FD.IC. v. Prusia, 18 F. 3d 637, 640 (8 1h Cir. 1994). 8. Additionally, withdrawal of the admissions wcmld promote the presentation of the merits of the action. See Tex. R. Civ. P. 198.3(b). The plirpose of requests for admissions is predominantly to assist the trier of fact and to reduce trial time by facilitating proof with respect to issues that cannot be eliminated from the case and by narrowing the issues by eliminating those that can be. The discovery rules were not designed as traps for the unwary, nor should we construe them as preveriting a litigant from presenting the truth. Stelly v. Papania, 927 S.W.2d at 622. Likewise, they surely were not designed to trap a rlage 6 of 9 layman, totally ignorant of the discove1y rules, and, in particular, the deadly import of the TRCP 198. The purpose of the Rules of Civil Procedure is to obtain a just, fair, equitable and impartial adjudication of the litigant's rights under established principles of substantive law. Stelly at 927 S.W.2d at 622. In Stelly, the Supreme Court stated: The primary purpose of[Rule 198} is to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove. It was never rrztended to be used as a demand upon a plaintiffor defendant to admit that he had no cause of action or ground of defense. In Trans-American Nat. Gas Corp v. Powell, 811S.W.2d913, 918 (Tex. 1991), the Supreme Court said that "S'anctions which are so severe as to preclude presentation of the merits of the case should not be assessed absent a party's flagrant bad faith or counsel's callous disregard for the responsibilities of discovery and the rules." 9. Movant recognizes that trial courts have broad discretion to permit or deny withdrawal of deemed admissions, but that they cannot do so arbitrarily, unreasonably, or without reference to guiding principles. Stelly, 927 S.W.2d at 622; see also Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005). When a party uses deemed admissions to try to preclude presentation of the merits of a case, due process concerns arise. See Trans-American National Gas Corp., 811 S. W.2d at 917-18; see also US.CA. Const. Amend. 14. In Wheeler, a custody modification case, of the 64 deemed admissions, none sought to discover information: 9 deemed circumstances changed so modification was proper; 25 deemed modification in tre child's best interest; 27 deemed Sandra (the mother) liable for malicious prosecution; and 3 deemed her liable for child support, attorney's fees and exemplary damages. Wheeler 157 S.W.3qat443. The Supreme Court reversed the Appellate Courtholdingthattherewas good cause for withdrawing the deemed admissions and that withdrawal would not cause undue prejudice to the father. Id at 444. The Court in Wheeler, while agreeing that prose litigants were not exempt from the rules ofprocedure (see Mansfield State Bankv. Cohn, 573S.W.2d181, 184-185 ·~~ CFFlCE (Tex. 1978) ), stated that: When a rule itself turns on an actor's state of mind (as these do here), application may require a different result when the actor is not a lawyer. Recognizing that Sandra did not know what any lawyer would does not create a separate rule, but recognizes the differences the rule itself contains. " Wheeler at 444. In the case at bar, the requests for admissions are couched in such a way as to preclude Mr. Sewell from disputing the allegations of undue influence exerted by him, the lack of testamentary capacity of Ms. Fitzgerald, his allegedly converting assets of Ms. Fitzgerald, and his alleged liability for damages and attorney's fees to contestants. Again, the effect of these deemed admissions amounts to a "gutting" of Movant' s case. The issues covered by these deemed admissions are at the core of this litigation; and that for justice to be done, these issues should be determined by the preponderance of the evidence. III. CONCLUSION Based on the above, Movant respectfully submits that he has met the requirements of Rule 198.3 by showing good cause for the withdrawal ofthe deemed admissions, that said withdrawal will not cause Contestants undue prejudice and will be subserved by (promote) presentation of the case on the merits. IV. PRAYER WHEREFORE, Movant requests that the Court, after hearing this motion, order the withdrawal of the admissions as set out above, order that Movant' s responses to the requests for admissions, attached hereto as Exhibit "B" and served with this Motion, be considered as Movant's responses to the requests for admissions, and afford Movant such other and,further relief to which Movant may be justly entitled. E ,Af,lur', ·" rn '.:;}r::crr'"'·Page 8 of 9 1 ,..,,,_,,,!>.C'v> COPY OF Oi~iGINAL FILED lf\1 ~-IOPKi!\1~.s ! ....•.·'~, \ ',-~< ·..__) '· .. i Fi CE Respectfully submitted, CURTIS, ALEXANDER, McCAMPBELL & MORRIS, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 Tel: (903) 473-2297 Fax: (903) 473-3069 1 /} 11 " ,1.1 { ,, By:. U-/~{//1-~~ ,/iJ. Brad McCampbcl V State Bar No. 13358000 ATTORNEYS FOR MOV ANT Certificate of Service MOTION TO WITHDRAW DEEMED ADMI~~~ TRUE AND CORREc-fage 9 of 9 .•·• -·~ 7 \", COPY ' ?··. ·. '. o:= ORIGINA.L / /l~G; F'.;. ;:~,, ~::r; ~;. r. i~ r ~CHAD CABLE LAWYER 323 GILMER SULPHUR SPRINGS, TEXAS 75482 TELEPHONE: (903) 885-1500 TELECOPIER: (903) 885-7501 May 13, 2010 Via Certified Mail 7005 1820 0007 7656 6578 Return Receipt Requested & Regular Mail Mr. Carlton Sewell 107 Morris Drive Sulphur Springs, Texas 75482 RE: Cause No. P08-13l'06 Estate of Velma Ruth Fitzgerald, Deceased Hopkins County, Texas Dear Mr. Sewell: Enclosed is the following: 1. Request for Admissions Sincerely, Chad Cable CC/lar Enclosures U CLERK'S GFFICE NO. P08 - 13,106 IN THE ESTATE OF § IN THE COUNTY COURT § VELMA RUTH FITZGERALD, § OF § DECEASED § HOPKINS COUNTY, TEXAS CONTESTANTS, FIRST REQUEST FOR ADMISSIONS TO: Carlton Sewell, 107 Morris Drive, Sulphur Springs, Texas 75482. COMES NOW, Contestants of the will sponsored by Carlton Sewell, in the above styled and numbered cause, and pursuant to Rule 198 of the Texas Rules of Civil Procedure, makes the following Requests for Admissions of Fact. These requests are being served upon, Carlton Sewell, and you are notified that Contestants demand that within 30 days after the service of these requests, that Carlton Sewell specifically admit or deny the facts requested. A failure to specifically answer any request or an evasive answer to any request will be taken as an admission of truth of such request. Respectfully submitted, ~~ Chad Cable State Bar No. 03575300 323 Gilmer Sulphur Springs, Texas 75482 Telephone (903) 885-1500 Telecopier (903) 885-7501 COUNSEL FOR CONTESIANTS . \ \\ ,-"\ :~ .,:: - p J " '. ·' CONTESTANTS' FIRST REQUEST FOR ADM1SSJONS CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing instrument has beep.~rvedon Carlton Sewell in accordance with the Texas Rules of Civil Procedure, on this \ · ----+- day of May, 2010. iL Certified mail/Return receipt requested Telecopier (fax) Federal Express Courier with Receipt Registered mail/Return receipt requested Regular Mail Personal Hand Delivery Date: May~ 2010. CHAD CABLE E /-\ND CORP.ECT ' ~~C)P~{ CJF OF~!Gl~A,L CONTESTANTS' FIRST REQUEST FOR ADMISSIONS REQUEST FOR ADMISSIONS 1 ADMIT or DENY That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her will. RESPONSE: 2. ADMIT or DENY That throughout the spring and summer of2007, Velma Ruth Fitzgerald was physically and mentally weak enough to be susceptible to undue influence. RESPONSE: 3. ADMIT or DENY That you influenced Velma Ruth Fitzgerald to the point of subverting and overpowering her mind so that she would execute a new will naming you as sole beneficiary which she would not have done but for your influence. RESPONSE: 4. ADMIT or DENY That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having contact with her as part of your scheme to exert undue influence over her. RESPONSE: 5. ADMIT or DENY That one of your techniques for exerting undue influence was to feign romantic love for Velma Ruth Fitzgerald in a seducing manner by physical affection and full on the mouth kissing. RESPONSE: 6. ADMIT or DENY That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald to change her will to benefit the two of you. RESPONSE: 7. ADMIT or DENY That you told the White brothers in Vernon that Velma RuthFitzgeraldwas not competent when she signed their lease contract. RESPONSE: CT CONTESTANTS' FIRST REQUEST FOR ADMISSIONS f "\ 8. ADMIT or DENY That you converted funds belonging to Velma Ruth Fitzgerald to your own benefit prior to her death. RESPONSE: 9. ADMIT or DENY That you breeched your fiduciary duty to Velma Ruth Fitzgerald by profiting from the use of her power of attorney prior to her death. RESPONSE: 10. ADMIT or DENY That you misrepresented the nature of Velma Ruth Fitzgerald's mental independence to Ray I ohnson and his staff. RESPONSE: 11. ADMIT or DENY That you had no contact with Velma Ruth Fitzgerald for years prior to accompanying Truitt and Laura Sewell to Dallas to visit her in a nursing home. RESPONSE: 12. ADMIT or DENY That you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong friend, Eurice Lee White. RESPONSE: 13. ADMIT or DENY That you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life. RESPONSE: 14. ADMIT or DENY That Velma Ruth Fitzgerald was mentally and physically incapable of resisting your undue influence by August of2007. RESPONSE: CONTESTANTS' FIRST REQUEST FOR ADMISSIONS ( 15. ADMIT or DENY That the August 8, 2007 will of Velma Ruth Fitzgerald is invalid and should be set aside. RESPONSE: 16. ADMIT or DENY That you are liable for damages and attorney fees to the contestants. RESPONSE: NO. POS-13106 IN THE ESTATE OF § IN THE COUNTY COURT § VELMA RUTH FITZGERALD, § AT LAW OF § DECEASED § HOPKINS COUNTY, TEXAS PROPONENT CARL TON SEWELL'S RESPONSES TO CONTESTANTS' FIRST REQUEST FOR ADMISSIONS TO: Contestants, by and through their attorney of record, Mr. Chad Cable, 323 Gilmer Street, Sulphur Springs, Texas 75482. NOW COMES, CARLTON SEWELL, Proponent, and makes this his Responses to Contestants' First Request for Admissions pursuant to the Texas Rules of Civil Procedure. Respectfully submitted, CURTIS, ALEXANDER, McCAMPBELL & MORRIS, P.C. Number One Planters Street P.O. Box 38 Emory, Texas 75440 Tel: (903) 473-2297 Fax: (903) 473-3069 ;f /)/} ( By:& ~(~,!///{ ~ ~ . Brad Mccampbell State Bar No. 13358000 ATTORNEYS FOR PROPONENT Certificate of Service I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on , 2015. ItJ d."'12A 2::'~t= McCampbe~ J. Brad _ RESPONSE TO ADMISSIONS 1. ADMIT or DENY That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her will. RESPONSE: DENY. 2. ADMIT or DENY That throughout the spring and summer of 2007, Velma Ruth Fitzgerald was physically and mentally weak enough to be susceptible to undue influence. RESPONSE: Carlton Sewell objects to this request because it calls for admission or denial of a statement concerning another person's state of mind. Without waiving the foregoing objection, DENY. 3. ADMIT or DENY That you influenced Velma Ruth Fitzgerald to th.e point of subverting and overpowering her mind so that she would execute a new will naming you as sole beneficiru.y which she would not have done but for your influence. RESPONSE: Carlton Sewell objects to this request because it calls for admission or denial of a statement concerning another person's state of mind. Without waiving the foregoing objection, DENY. . 4. ADMIT or DENY · That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having contact with her as pait of your scheme to exert undue influence over her. RESPONSE: DENY. 5. ADMIT or DENY That one of your techniques for exerting undue influence was to feign romantic love for Velma Ruth Fitzgerald in a seducing manner by physical affection and full on the mouth kissing. RESPONSE: DENY. CARLTON SEWELL'S RESPONSES TO REQUEST FORADMISSIONS Page 2 of 4 6. ADMIT or DENY ·That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald to change her will to benefit the two of you. RESPONSE: DENY. 7. ADMIT or DENY That you told the White brothers in Vernon that Velma Ruth Fitzgerald was not competent when she signed their lease contract. RESPONSE: DENY. 8. ADMIT or DENY That you converted funds belonging to Velma Ruth Fitzgerald to your own benefit prior to her death. RESPONSE: DENY. 9. ADMIT or DENY That you breeched your fiduciary duty to Velma Ruth Fitzgerald by profiting from the use of her power of attorney prior to her death. RESPONSE: Carlton Sewell objects to this request for the reason that it requests a response concerning a matter (breach of fiduciary duty) that is not a part of Contestants' pleadings. Without waiving the foregoing objection, DENY. 10. ADMIT or DENY That you misrepresented the nature of Velma Ruth Fitzgerald's mental independence to Ray Johnson and his staff. RESPONSE: DENY. 11. ADMIT or DENY That you had no contact with Velma Ruth Fitzgerald for years prior to accompanying Truitt and Laura Sewell to Dallas to visit her in a nursing home. RESPONSE: ADMIT Page 3 of 4 12. ADMIT or DENY That you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong friend, Eurice Lee White. RESPONSE: DENY. 13. ADMIT or DENY That you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her life. RESPONSE: DENY. 14. ADMIT or DENY That Velma Ruth Fitzgerald was mentally and physically incapable of resisting your undue influence by August of 2007. RESPONSE: Carlton Sewell objects to this request for the reason that this request assumes that Sewell unduly influenced Velma Ruth Fitzgerald which he has denied in Request #1 above. Sewell also objects to this request because it calls for admission or denial of a statement concerning another person's state of mind. Without waiving the foregoing objection, Sewell DENIES that he exerted undue influence over Ms. Fitzgerald and DENIES that she was mentally or physically incapable by August of 2007. 15. ADMIT or DENY That the August 8, 2007 will of Velma Ruth Fitzgerald is invalid and should be set aside. RESPONSE: Carlton Sewell objects to this request for the reason that this request seeks Sewell's admission or denial of a conclusion of law. Without waiving this objection, DENY. 16. ADMIT or DENY That you are liable for damages and attorney fees to the contestants. RESPONSE: Carlton Sewell objects to this request for the reason that this request seeks Sewell's admission or denial of a conclusion oflaw. Furthermore, that the statement is vague and unclear. Without waiving this objection, DENY. CARLTON SEWELL'S RESPONSES TO REQUEST FOR ADMISSIONS Page4 of 4 CE CURTIS, A_..JXANDER, MCCAMPBELL & MOi..idS, P.C. ATTORNEYS AT LAW NO. I PLANTERS STREET HAROLD F. CURTIS, JR. (1931-2006) P.O. Box38 !VAN ALEXANDER, JR. (1932-2013) EMORY, TEXA3 75440-0038 J. BRAD MCCAMPBELL (903) 473-2297 LEAH CURTIS MORRIS (903) 473-3069 FAX GEORGE IVAN ALEXANDER PHILIP D. ALEXANDER EMORY• GREENVILLE February 2, 2015 County Clerk of Hopkins County P.O. Box 391 Sulphur Springs, Texas 75483 RE: Cause No. POB-13106; In the Estate of Velma Ruth Fitzgerald, Deceased In the County Court at Law of Hopkins County, Texas Our File No.: 7049-13 Dear Clerk: Enclosed please find the original and one copy of a Motion to Withdraw Deemed Admissions for filing in the above-referenced case. Please return the file-marked copy to our office in the enclosed self-addressed envelope. By copy of this letter, I am forwarding a true and correct copy of this Motion to opposing counsel. · Thank you for your assistance in this matter. cc: Mr. Chad Cable CHAD CABLE LAW OFFICE 323 Gilmer Street Sulphur Springs, Texas 75482 By CMRRR# 7012 3050 0000 7906 5115 Honorable Amy Smith Hopkins County Court at Law 119 Church Street Sulphur Springs, Texas 75482 :n--; ,",/)Q --l;; 1 I -- "My name is CARLTON SEWELL. I am the Movant/Proponent in the a'bove-referencedn cause. I have personal knowledge of the facts stated in the Motion to Withdraw Deemed Admissions and they are true and correct." Further Affiant sayeth not. SIGNED on April 1 '2015. CARLtTON SEWELL i. SUBSCRIBED AND SWORN TO BEFORE ME on this ~day of April, 2015, to certify which witness my hand and official seal. SUSAN PEREZ My Commission Expires August 24, 2018 TRUE AND CORRECT COPY OF ORIGINAL FILED IN HOPl