ACCEPTED
06-15-00032-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/16/2015 2:21:48 PM
DEBBIE AUTREY
CLERK
No. 06-15-00032-CV
In the Court of Appeals FILED IN
6th COURT OF APPEALS
Sixth Judicial District TEXARKANA, TEXAS
7/16/2015 2:21:48 PM
Texarkana, Texas DEBBIE AUTREY
Clerk
In re CARLTON SEWELL, Relator
Original Proceeding from the County Court at Law of Hopkins County, Texas
PETITION FOR WRIT OF MANDAMUS
REAL PARTIES IN INTEREST'S RESPONSE
TO RELATOR'S PETITION FOR WRIT OF MANDAMUS
Chad Cable
State Bar No. 03575300
323 Gilmer Street
Sulphur Springs, Texas 75482
(903) 885-1500 Telephone
(903) 885-7501 Telecopier
ATTORNEY FOR CONTESTANTS
Table of Contents
INDEX OF AUTHORITIES .............................................................................................. 2
STATEMENT OF THE CASE ........................................................................................... 3
STATEMENT OF FACTS .................................................................................................. 3
ARGUMENT AND AUTHORITIES ................................................................................. 3
PRAYER ............................................................................................................................ l1
CERTIFICATE OF SERVICE........... .............................................................. .................. 12
Index ofAuthorities
CASES PAGE
Berlanga v. Berlanga, 2012 WL 252497 {Tex. App.- Beaumont 2012, no pet.) ....................... 5
Boulet v. State, 189 S.W.3d 833 {Tex. App. -Houston [1 51 Dist.] 2006, no pet.) ....................... II
Hewitt v. Roberts, 2013 WL 398940 {Tex.App.-Corpus Christi 2013, no pet.) ................. ......... 3
Johnson v. Edmonds, 7 12 S.W.2d 651 {Tex.App.-Fort Worth 1986, no writ) ............................. 5
Jones v. Citibank (South Dakota), NA., 235 S.W.3d 333 (Tex.App. - Fort Worth 2007) ......... .4
Marino v. King 355 S.W.3d 629 (Tex.2011) .......................... ...................................................... 3, 9
Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803
(Tex.App.- Houston [1 st Dist] 1999, pet. denied) ............................................................ 10
Steffan v. Steffan, 29 S.W.3d 627 {Tex. App.- Houston [14th Dist.] 2000, pet. denied) ............. .4, 5
Stelly v. Papania, 927 S. W.2d 620 {Tex.l996) ................... ......................................................... 6
Vann v. Gaines, 2007 WL 865870, *2 (Tex.App.-Fort Worth 2007, no pet.) ............................. .4, 5
Webb v. Ray, 944 S.W.2d 458 , 461 (Tex.App.-Houston [14th Dist.] 1997, no writ) ............. ..... .4, 6
Wheeler v. Green, 157 S. W.3d 439 (Tex.2005) ........................................................................... 5, 6
2
RULES
TEX.R.CIV.P. 198.3 ........ ....... ........................................................................................... .........6, 7
Statement of the Case
Real Parties in Interest accept as accurate Carlton Sewell's Statement of the Case.
Statement of Facts
Real Parties in Interest accept Carlton Sewell's Statement of Facts as accurate except as to the
discovery period. The parties, by their conduct and tacit agreement, perpetuated the discovery period
by conducting discovery after the date of the Requests for Admission: i.e., Requests for Disclosure;
Interrogatories; Requests For Production; and, additional depositions. (Carlton Sewell's Mandamus
Record, Vol. 1, Tab 21 and 23).
Arguments and Authorities
Carlton Sewell Fails to Establish "Good Cause"
A person moving for withdrawal of deemed admissions bears the burden of establishing 1)
good cause; and, 2) the absence of undue prejudice. Hewitt v. Roberts, 2013 WL 398940, *2 (Tex.App.-
Corpus Christi 20 13, no pet.).
Good cause exists where the failure to respond to the request for admissions was the result of an
accident or mistake and was not intentional or the result of conscious indifference. Marino v. King 355
S.W.3d 629, 633 (Tex.2011).
Carlton Sewell's stark failure in this case is his failure to establish "good cause." Carlton Sewell
appears to rely exclusively on the fact that he was a pro se litigant as being, ipso facto, sufficient to
establish "good cause." His status as a pro se litigant is not, ipso facto , sufficient to establish "good
cause."
Two cases from the Fort Worth Court of Appeals make it plain that "pro se" status is not
sufficient to establish "good cause."
3
In the case Vann v. Gaines, 2007 WL 865870, *2 (Tex.App.-Fort Worth 2007, no pet.) the court
noted that, unlike the appellant in Wheeler, the appellant in Gaines had not moved to withdraw the
admissions, but went on to state that,
In any event, while a lack of understanding of pre-trial procedure by a pro se litigant
might be proof of good cause to withdraw deemed admissions, a conscious indifference is
not. Here, appellant was given two separate requests for admissions by appellees ...
Appellant ignored both requests ... Unlike the pro se litigant in Wheeler, appellant showed
no good cause for not attempting to respond earlier.
Again, in Jones v. Citibank (South Dakota), N.A., 235 S.W.3d 333 (Tex.App. - Fort Worth
2007), the Fort Worth Court of Appeals stated:
In any event, while a lack of understanding of pre-trial procedure by a pro se litigant
might be proof of good cause to withdraw deemed admissions, a conscious indifference is
not. Here, unlike the pro se litigant in Wheeler, appellant complied with the discovery
rules by responding timely to the first request for admissions, but she showed no good
cause for failing to even attempt to respond on time to the second request for admissions.
!d.
It is Carlton Sewell's burden to establish "good cause." Webb v. Ray, 944 S.W.2d 458, 461
(Tex.App.-Houston [14th Dist.] 1997, no writ). In the instant case, Carlton Sewell fails to establish that
his failure to respond was due to accident or mistake and was not the result of conscious indifference.
First of all, on the face of the Admissions Request, Carlton Sewell was notified of the
consequences of a fai lure to answer. On the face of the Contestants' First Request For Admissions it
states, "A failure to specifically answer any request or an evasive answer to any request will be taken as
an admission of truth of such request." If Carlton Sewell read this admonition and then decided not to
answer, such decision would amount to conscious indifference.
1
The case of Steffen v. Steffen, 29 S.W.3d 627, 631 (Tex. App.- Houston [14 h Dist.] 2000, pet.
denied) is remarkably similar to the instant case. In Steffan, husband was acting pro se when he
received a Request For Admissions. Husband did not respond to the request.
4
Here, Richard states that he showed "good cause" because he was a pro se litigant at the
time the requests were served on him, and he did not know or understand the
consequences of failing to timely answer. However, we note that a pro se litigant must
comply with the applicable laws and rules of procedure. See Mansfield State Bank v.
Cohn, 573 S.W.2d 181, 185 (Tex.l 978). Moreover, the requests for admission had the
legal consequences of non-compliance written on their face. Richard has not shown
that his alleged ignorance of the law rendered his non-compliance an accident or a
mistake, rather than intentional or the result of conscious indifference. We find no abuse
of discretion by the trial court in denying Richard's request to withdraw the deemed
admissions, and overrule the second issue.
Steffan v. Steffan , 29 S.W.3d 627, 631 (Tex. App. - Houston [14th Dist.] 2000, pet. denied).
Carlton Sewell can find no footing in the case of Wheeler v. Green, 157 S.W.3d 439, 443
(Tex.2005)(per curiam). In that case, a pro se litigant tried to comply with the rules relating to requests
for admissions, but because she was unfamiliar with the mail box rule, she served her responses 2 days
late. There is clearly nothing in that case showing any conscious indifference. In Wheeler, the result
would likely have been different if the mailbox rule had been stated on the face of the Admissions
Request document.
On the other hand, if Carlton Sewell decided not to read the document, that would also amount
to a conscious indifference. A decision not to read the document cannot be excused by the lack of legal
knowledge. A person would know that the document was significant by the fact that it was sent
certified mail , return receipt requested. Whether a prose litigant or a seasoned attorney, a decision not
to read a document is a decision to ignore it. A decision to ignore it is conscious indifference. See
Gaines, 2007 WL 865870 at *2.
"Conscious indifference has been defined as failing to take some action which would seem
obvious to a person of reasonable sensibilities under the same circumstances." Berlanga v. Berlanga,
No. 09-11-00082-CV, 2012 WL 252497, at *4 (Tex. App. -Beaumont 2012, no pet.)(quoting Johnson v.
Edmonds. 712 S.W.2d 651 , 653 (Tex.App.-Fort Worth 1986, no writ)). It would seem obvious to a
person of reasonable sensibilities to read a document that has been sent certified mail. Upon reading
5
such a document as is present in the instant case, it would seem obvious to a person of reasonable
sensibilities to respond to the Requests for Admission. Therefore, Carlton Sewell acted with conscious
indifference in failing to respond to the Requests for Admission.
In view of the discovery propounded by Carlton Sewell while he was acting pro se, it is
apparent that he had some degree of legal sophistication. See Interrogatories and Request For
Production dated June 7, 2010. (See Exhibit "A").
Furthermore, the trial court found that Carlton Sewell had acted with "conscious indifference."
(See Exhibit "B"). Therefore, Carlton Sewell failed to establish " good cause" necessary to withdraw
deemed admissions. The party seeking withdrawal of deemed admissions has the burden to establish
good cause. Webb v. Ray, 944 S.W.2d 458, 461 {Tex.App.-Houston [14th Dist.] 1997, no writ). A trial
court has broad discretion to permit or deny the withdrawal of admissions. See Stelly v. Papania, 927
S.W.2d 620, 622 (Tex.1996). The judgment of the trial court should be set aside only if this Court finds
that the trial court's judgment amounts to a clear abuse of discretion.
Dichotomy Between Merits-Preclusive and Non-Merits-Preclusive Admissions
Significant is the interplay between the showing of "good cause" and the due process standard
of "flagrant bad faith or callous disregard of the discovery rules." The " good cause" standard applies to
whether the deemed admissions can be withdrawn under Rule 198.3. To establish "good cause," the
admitting party must establish that the failure to respond was the result of accident or mistake, not
intentional or the result of conscious indifference. Wheeler v. Green, 157 S.W.3d 439, 442 {Tex. 2005)
The due process standard applies to prevent the proponent of the deemed admissions from using the
deemed admissions in a merits-preclusive manner. Thus, if the Carlton Sewell fails to establish " good
cause" then the admissions cannot be withdrawn under Rule 198.3. At the same time, the merits-
preclusive deemed admissions cannot be used absent evidence of " flagrant bad faith or callous
6
disregard. " However, if the admitting party fails to establish "good cause," such that the deemed
admissions cannot be withdrawn under Rule 198.3, the non-merits-preclusive deemed admissions can
be freely used by the proponent without implicating due process concerns or the " flagrant bad faith or
callous disregard" standard. Therefore, it is important to know which admissions are non-merits-
preclusive such that they may be freely used without implicating due process concerns.
Below, find a list of the deemed admissions in this case and a statement as to whether each
admission is merits-preclusive, and thus cannot be used absent "flagrant bad faith or callous disregard"
or non-merits-preclusive, and thus may be freely used without implicating due process concerns.
1. That you exercised undue influence over Velma Ruth Fitzgerald to induce her to change her
will. Merits-Preclusive.
2. That throughout the spring and summer of 2007, Velma Ruth Fitzgerald was physically and
mentally weak enough to be susceptible to undue influence. Merits-Preclusive.
3. That you influenced Velma Ruth Fitzgerald to the point of subverting and overpowering her
mind so that she would execute a new will naming you as sole beneficiary which she would not
have done absent your influence. Merits-Preclusive.
4. That you engaged in a campaign to keep other relatives of Velma Ruth Fitzgerald from having
contact with her as part of your scheme to exert undue influence over her. Merits-Preclusive.
5. That one of your techniques for exerting undue influence was to feign romantic love for Velma
Ruth Fitzgerald in a seducing manner by physical affection and full on the mouth kissing.
Merits-Preclusive.
6. That you suggested to your brother Truitt Sewell, that the two of you get Velma Ruth Fitzgerald
to change her will to benefit the two of you. Non-merits-preclusive.
7. That you told the White brothers in Vernon that Velma Ruth Fitzgerald was not competent
when she signed their lease contract. Non-Merits-Preclusive.
7
8. That you converted funds belonging to Velma Ruth Fitzgerald to your own benefit prior to her
death. Non-Merits-Preclusive.
9. That you breached your fiduciary duty to Velma Ruth Fitzgerald by profiting from the use of
her power of attorney prior to her death. Non-Merits-Preclusive.
10. That you misrepresented the nature of Velma Ruth Fitzgerald's mental independence to Ray
Johnson and his staff. Non-Merits-Preclusive.
11. That you had no contact with Velma Ruth Fitzgerald for years prior to accompanying Truitt and
Laura Sewell to Dallas to visit her in a nursing home. Non-Merits-Preclusive.
12. That you prevented Velma Ruth Fitzgerald from having telephone contact with her lifelong
friend, Eurice Lee White. Non-Merits-Preclusive.
13. That you habitually subjected Velma Ruth Fitzgerald to your control during the last year of her
life. Non-Merits-Preclusive.
14. That Velma Ruth Fitzgerald was mentally and physically incapable of resisting your undue
influence by August 2007. Merits-Preclusive.
15. That the August 8, 2007 will of Velma Ruth Fitzgerald is invalid and should be set aside.
Merits-Preclusive.
16. That you are liable for damages and attorney fees to the contestants. Merits-Preclusive.
Real Parties in Interest believe that Admission 13 - "That you habitually subjected Velma Ruth
Fitzgerald to your control during the last year of her life." is not merits-preclusive because "habitually"
does not mean " in every instance," such as at the time of the execution of the will, and because
"control" can exist that does not arise to such degree as to "subvert and overpower" the mind, e.g.,
controlling her visits with others, controlling her phone calls, etc.
Thus, Real Parties in Interest can freely use deemed admissions numbers: 6,7,10,11 ,12, and 13
without implicating due process concerns, so long as the failure to respond to the requests for
8
admission was the result of conscious indifference. Admissions 8 and 9 are also non-merits-preclusive,
but Real Parties in Interest have heretofore withdrawn such admissions in the trial court. (See
Exhibit " C").
Carlton Sewell Fails to Establish Absence of Undue Prejudice
The absence of undue prejudice is established by showing that a withdrawal of deemed
admissions will not delay trial nor significantly hamper the opposing party's ability to prepare for trial.
Marino v. King 355 S.W.3d 629, 633 (Tex.2011).
There is considerable discovery that Real Parties in Interest did not seek to conduct in reliance
on the deemed admissions. If not for the deemed admissions, Real Parties in Interest would have
sought to depose l) Tiffany Bassham, who was the administrator of the assisted living facility Carlton
Sewell had Mrs. Fitzgerald sequestered in; 2) Alice Davis, who was one of the paid sitters; and, 3)
DeeAnn Landers, the bank officer familiar with the unusual facts involving Carlton Sewell's use of the
power of attorney, executed by Mrs. Fitzgerald in his favor, to purchase a rural home on several acres
with an $80K down payment and a similar sized note with the local bank. (See Exhibit "A", Para. 5)
Real Parties in Interest would also seek to obtain the bank records pertaining to that transaction.
Critical to Real Parties in Interest's case is the anticipated testimony ofTruitt Sewell, who is one
of the Real Parties in Interest and the brother of Carlton Sewell. His anticipated testimony is the most
probative evidence in the entire case. He would testify that Carlton Sewell asked him to help Carlton
get Fitzgerald to change her will to benefit the two of them. As a strategic matter, it is important to
elicit this information by live testimony.
Truitt Sewell became sick with cancer in the Fall of 2014. (See Exhibit "A", Para. 6.). His
health has deteriorated to the point that he probably will not have the capacity to testify at trial because
of the delay of trial from January 12, 2015, to some undetermined point in the future. Id. Thus, Real
9
Parties in Interest's case is highly prejudiced by the delay of trial.
Additionally, the case of Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803, n. 5 (Tex.App.-
Houston [ 151 Dist] 1999) is instructive. There, trial was commenced more than 2 years after the
requests for admissions were deemed admitted. After trial began, and after 3 witnesses had testified
and 10 exhibits had been admitted, plaintiffs sought to introduce the deemed omissions, which caught
the defendant unaware, because the deemed admissions were the result of a clerical error by the staff of
defendant's attorney, who was ignorant of the mistake until the day of trial. The trial court granted the
defendant leave to withdraw the deemed admissions but offered plaintiffs a mistrial in order for
plaintiffs to conduct the discovery plaintiffs had not conducted in reliance on the deemed admissions.
The plaintiffs refused the mistrial. From an unfavorable result, plaintiffs appealed. The 151 District
Court of Appeals reversed, holding that the plaintiffs were unduly prejudiced because there was
considerable discovery that plaintiffs did not conduct in reliance on the deemed admissions. The court
of appeals also noted that the plaintiffs "were not required to accept a mistrial - plaintiffs were entitled
to rely on the guiding rules and principles set out in the Rules of Civil Procedure regarding deemed
admissions." The court of appeals did not blame the plaintiffs, in the least, for waiting over two years,
and not until the middle oftrial, before asserting the deemed admissions.
Like the plaintiffs in Morgan, the Real Parties in Interest here have substantial discovery which
they did not seek to conduct in reliance on the deemed admissions. (See Exhibit "A", Para. 5). Real
Parties in Interest here, upon filing their Certificate of Deemed Admissions, "were entitled to rely on
the guiding rules and principles set out in the Rules of Civil Procedure regarding deemed admissions."
In Morgan, the court permitted withdrawal of deemed admissions during the middle of trial. In the
instant case, the Court delayed the trial of the case for the purpose of entertaining a motion for
withdrawal of deemed admissions. (See Exhibit "A", Para. 7). Delay of trial is a quintessential form of
undue prejudice. Twenty cases in Texas substantially state: "Undue prejudice depends on whether
10
withdrawing an admission will delay trial or significantly hamper the opposing party's ability to
prepare for it." Boulet v. State, 189 S.W.3d 833, 836-37 (Tex. App. - Houston [1 51 Dist.] 2006, no
pet.)( emphasis added).
In their reliance on the guiding rules and principles set out in the Rules of Civil Procedure, Real
Parties in Interest have been prejudiced by the delay of trial. Therefore, Carlton Sewell has failed to
establish an absence of undue prejudice, and the Petition For Writ of Mandamus should be denied.
The fact that Real Parties in Interest had 4Y2 years to conduct the discovery that was not
conducted is immaterial, because the Real Parties in Interest believed that the pertinent propositions of
law were established by the deemed admissions.
Carlton Sewell Waived the Right to Complain of the Untimeliness
of Real Parties in Interest's Admissions Request
By engaging in substantial discovery after Real Parties in Interest's Request for Admissions,
Carlton Sewell cannot complain of the untimeliness of Real Parties in Interest's Request for
Admissions. The Request for Admissions was served on May 13, 20 10. Subsequent to that time, the
parties continued to engage in discovery, i.e. , Requests for Disclosure, Interrogatories, Requests for
Production and additional depositions. (Carlton Sewell's Mandamus Record, Vol. I, Tab 21 and 23).
By their conduct and tacit agreement, the parties perpetuated the discovery period.
PRAYER
For the foregoing reasons, Real Parties In Interest pray the Court to strike those admissions
having merits-preclusive effect, Admissions numbers 1,2,3,4,5, 14, 15, 16; strike those admissions that
were withdrawn in the trial court, Admissions 8 and 9; and affirm those admissions having non-merits-
preclusive effect, Admissions numbers 6,7,10,11.12,13; deny Carlton Sewell's Petition For Writ of
Mandamus, and for such other relief, at law or in equity, to which they may be justly entitled.
11
Respectfully submitted,
Chad Cable
State Bar No. 03575300
323 Gilmer Street
Sulphur Springs, Texas 75482
(903) 885-1500 Telephone
(903) 885-7501 Telecopier
ATTORNEY FOR CONTESTANTS
CERTIFICATE OF SERVICE
I hereby certify that on the \ \Q day of July, 2015, a true and correct copy was served on
to Brad McCampbell, P.O. Box 38, Emory, Texas 75440, FAX (903) 473-3069, attorney of record or
party in accordance with the Texas Rules of Civil Procedure.
~~
Chad Cable
12
Exhibit "A"
No. 06-15-00032-CV
In the Court of Appeals
Sixth Judicial District
Texarkana, Texas
In re CARLTON SEWELL, Relator
Original Proceeding from the County Court at Law of Hopkins County, Texas
PETITION FOR WRIT OF MANDAMUS
AFFIDAVIT OF CHAD CABLE
STATE OF TEXAS *
*
COUNTY OF HOPKINS *
BEFORE ME, the undersigned authority, personally appeared Chad Cable, who, upon oath or
solemn affirmation, deposed as follows:
1. My name is Chad Cable. I am over the age of eighteen and am, in all respects, competent to
make this affidavit. The matters stated herein are within my personal knowledge and are true
and correct.
2. I am an attorney licensed to practice law in the State ofTexas. I have practiced law in Hopkins
County for the past 35 years. I represent the Real Parties in Interest in the above styled and
numbered case,
3. Acting as attorney for the Real Parties in Interest, I served on Carlton Sewell ("Carlton")
Requests for Admissions dated May 13, 2010. Attached as Exhibit A is the green card
establishing that Carlton received the document on May 17, 2010. Carlton failed to respond to
such Request for Admissions. Therefore, according to Texas Rules of Civil Procedure, Rule
198.2(c), the matters are deemed admitted without the necessity of a court order.
4. Since serving the Requests for Admissions, Carlton, while acting pro se, has served on me a Set
of Written Interrogatories (June 7, 201 0) a true and correct copy of which is attached to this
affidavit as Exhibit B; and, a Request For Production (June 7, 201 0) a true and correct copy of
which is attached to this affidavit as Exhibit C.
5. In reliance on the deemed admissions, I did not seek to depose 1) Tiffany Bassham, head
administrator of the assisted living center in which Velma Ruth Fitzgerald was sequestered by
Carlton; 2) Alice Davis, the paid sitter of Velma Ruth Fitzgerald; and 3) DeeAnn Landers, the
bank officer involved in Carlton's purchase of a rural home on several acres for a down payment
of $80,000.00, together with a like amount borrowed through the bank, which Carlton
purchased under the power of attorney executed in his favor by Velma Ruth Fitzgerald.
6. Truitt Sewell was diagnosed with cancer in the Fall of2014. His health has rapidly deteriorated
since that time to the extent that Truitt Sewell is likely incapacitated to such an extent that he
will not be able to testify at trial.
7. On January 12, 2015, the day of trial, I filed a Certificate of Deemed Admissions. At Carlton
Sewell's request, the Court delayed the trial for the purpose of entertaining a motion to
withdraw the deemed admissions.
8. FURTHER AFFIANT SAYETH NOT.
cQke~c:>..
CHAD CABLE
SWORN TO, or solemnly affirmed, before me, the u dersigned authority, on this the \La_
day of July, 2015.
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10
law Offices of Chad Cable
323 Gilmer
Sulphur Springs. TX 7 5482
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Affidavit of Chad Cable
Exhibit "B"
CARLTON SEWELL
6940 TX Hwy. 11 E.
Sulphur Springs, TX 75482
June 7, 2010
Chad Cable
323 Gilmer St.
Sulphur Springs, TX 75482
Rc: 1. Request for Production
2. [nterrogatories
No. P08-1 3 I 06; In the Estate of Velma Ruth Fitzgerald, Deceased; in the County
Cout1 of Hopkins County, Texas
Dear Mr. Cab le:
Enclosed please find Request for Production and Interrogatories to Janet Neal Stanley and
Truitt Sewell.
Sincerely,
Carlton Sewell
Encs.
No. POS-131 06
lN THE ESTATE OF § IN THE COUNTY COURT
§
VELMA RUTH FITZGERALD, § OF
§
DECEASED § HOPKINS COUNTY, TEXAS
INTERROGATORIES TO JANET NEAL STANLEY AND TRUIT SEWELL
TO: JANET NEAL STANLEY AND TRUIT SEWELL, by and through Chad Cable, 323
Gilmer St., Sulphur Springs, TX 75482:
COMES NOW, Carlton Sewell, "Defendant", and pursuant to Rule 197 ofthe Texas Rules
of Civi I Procedure, serves the attached interrogatories to be propounded to Janet Neal Stanley and
Truitt Sewell, Proponents.
Pursuant to the provisions of Rules 192 and 197 of the Texas Rules of Civil Procedure,
you are required to complete written answers to the Interrogatories on Exhibit "A" to this
pleading immediately upon the expiration of thirty (30) days following the date you are served
with these Interrogatories. You are notified that the Defendant specifies that the answers shall be
served upon the undersigned counsel.
Your failure to make timely answers or objections may subject you to sanctions as
provided in Rule 215 of the Texas Rules of Civil Procedure.
Furthermore, demand is made for the supplementation of your answers to these
Interrogatories as required by Rule 193.5 of the Texas Rules of Civil Procedure.
Respectfully submitted,
Carlton Sewell, Defendant
6940 TX Hwy. II E.
Sulphur Springs, TX 75482
903.335.0145
Interrogatories to Janet Neal Stanley and Truitt Sewell Page 1
CERTIFICATE OF SERVICE
I ce1iify that on , 2010, a true and correct copy oflnterrogatories to Janet Neal
Stanley and Truitt Sewell was served on each attorney of record or party in accordance with the
Texas Rules of Civil Procedure via hand delivery:
Chad Cable, 323 Gilmer Avenue, Sulphur Springs, TX 75 482.
Carlton Sewell
Interrogatories to Janet Neal Stanley and Truitt Sewell Page 2
DEFINITIONS AND INSTRUCTIONS
l. As used herein, the terms "you" and "your" shall mean the Proponents, Janet Nea l
Stanley and/or Truitt Sewell, their attorneys, agents and all other natural persons or business or legal
entities acting or purporting to act for or on behalf ofProponents, whether authorized to do so or not.
2. As used herein, the term "documents" shall mean all writings of every kind, source
and authorship, both originals and nonidentical copies thereof, in your possess ion, custody or
control, or known by you to exist, irrespective of whether the writing is one intended for or
transmitted internally by you, or intended for or transmitted to any other person or entity, including
without limitation, any governmental agency, department, administrative or private entity or person.
The tenn shall include handwritten, typewritten, printed, photocopies, photographic, or recorded
matter. lt shal l include comm unications in words, symbols, pictures, sound record ings, films, tapes,
and information stored in, or accessible through, computer or other infonnation storage or retrieval
systems, together with the codes and/or programming instructions and other materials necessary to
understand and use such systems. For purposes of illustration and not limitation, the tern1 shall
include: affidavits, agendas, agreements, analyses, announcements, bills, statements, and other
records of obligations and expenditures, books, brochures, bulletins, calendars, canceled checks,
vouchers, receipts and other records of payments, charts, drawings; check registers, checkbooks,
circulars, collateral files and contents, contacts, corporate bylaws, corporate charters,
conespondence, cred it files and contents, deeds of trust, deposit slips, diaries, drafts, files, guaranty
agreements, instructions, invoices, ledgers, journals, balance sheets, profits and loss statements, and
other sources of financial data; letters, logs, notes or memoranda of telephonic or face-to-face
conversations, manuals, memoranda of all kinds, to and from any persons, agencies, o r entities;
minutes, minute books, notes, notices, parts lists, papers, press rel eases, printed matter (including
books, articles, speeches, and newspaper clippings), purchase orders, records, records of
administrative, technical and financial actions taken or recommended; reports, safety deposit boxes
and contents and records of entry, schedules, security agreements, specifications, statement of bank
acco unts, statements, interviews, stock transfer ledger, technical and engineering reports,
eval uations, advice, recommendations, commentaries, conclusions, studies, test p.lans, manuals,
procedures, data, reports, results and conclusions, summaries, notes, and other records and
recordings of any conferences, meetings, visits, statements, interviews or telephone conversations,
telegrams, teletypes and other communications sent or received, transcripts of testimony, UCC
instruments, work papers, and all other writings, the contents of which relate to, discuss, consider
o r otherwise refer to the subject matter of the particular discovery requested.
ln accordance with Tex.R.Civ.P § 102.7, a document is deemed to be in your possession,
custody or control if you have either actual physical possession of a document or constructive
possession ofthe document. Constructive possession means that you have a superior right to compel
the production of such document or a copy thereof from a third party having actual physical
possession of the document.
3. "Decedent" means Velma Ruth Fitzgerald.
4. "Person" or "persons" means any natural persons, firms, partnerships, associations,
joint ventures, corporations and any other fom1 of business organization or an-angement, as well as
governmental or quasi-governmental agencies. If other than a natural person, include all natural
persons associated with such entity.
USE OF DEFINITIONS
The use of any particular gender in the plural or singu lar number ofthe words defined under
Interrogatories to .Janet Neal Stanley and Truitt Sewell Page3
paragraph "I", "Definitions" is intended to include the appropriate gender or number as the text of
any pmticular discovery may require.
TIME PERIOD
Unless specifically stated herein, all infonnation herein requested is for the time period from
January L. 2007 through the date of the documentation responding hereto. However, if information
clarifies the estate, please detail such documentation.
DESCRJPTION OF WITHHELD MATERIAL OR INFORMATION
Pursuant to rule 192.2(b), Tex.R.Civ.P., ifyou have withheld any material or infonnation
from production, then within 18 days after service upon Defendant ' s counsel of your Answers to
lnterTogatories, please file a response that:
a. Describes the infonnation or materials withheld that, without revealing the privileged
infom1ation itself or otherwise waving the privilege, enables other parties to assess
the applicability of the privilege; and
b. Asserts a specific privilege for each item or group of items withheld.
Interrogatories to Janet Neal Stanley and T ruitt Sewell Page4
INTERROGATORIES
lnteJTogatory o. I: Please identify each person (by name, address and telephone number)
answering these InteJTogatories, supplying infonnation or assisting in any
way with the preparation of the answers to these Interrogatories.
ANSWER:
Interrogatory o. 2: Pursuant to Tex.R.Civ.P. J92 .3(d), please identify by name, address and
telephone number any person who has knowledge of facts relevant to this
lawsuit and provide a brief statement of the relevant facts attributable to each
such person.
ANSWER:
Interrogatory No. 3: Pursuant to Tex.R.Civ.P. 192.3(c), please identify by name, address and
telephone number all experts whom you have retained for consultation whose
work product fonns the basis either in whole or in part of the opinions of an
expert who is to be called as a witness.
A SWER:
Interrogatory No. 4: Please identify all documents consulted, examined or referred to in the
preparation of the answers to these interrogat01ies.
ANSWER:
Interrogatory o. 5: Please identify all of the legal contentions and factual basis for your
contentions that the wi II dated August 8, 2007, should not have been admitted
to probate and should be aside, without limited to, your contentions that
Decedent lacked testamentary capacity or that Carlton Sewell exercised
undue influence over Decedent.
A SWER:
Interrogatory No. 6: Please state the name, telephone number, and address of persons having
relevant knowledge of the mental and physical condition of Decedent,
including, but not limited to, physicians, medical and other healthcare
providers, of Velma Ruth Fitzgerald during the period of time beginning
January 1, 2007 through the date of her death her death on December 31 sc,
2007.
A SWER:
Interrogatory No.7: Please state the name, address and telephone number of each and every
hospital, clinic, out-patient facility or other healthcare provider which
provided Decedent care or advice or provided advise begirming January 1,
2007 through the date of Decedent 's death December 31 sc, 2007.
ANSWER:
Interrogatory No. 8: Please identify all of the legal contentions and factual basis for your
Interrogatories to .Janet Neal Stanley and T ruitt Sewell PageS
contentions that the Will dated April 26, 1993, propounded by Defendant,
was not revoked by Decedent.
ANSWER:
Interrogatories to Janet Neal Stanley and Truitt Sewell Page 6
( (
Affidavit of Chad Cable
Exhibit "C"
No. POS-13106
IN THE ESTATE OF § IN THE COUNTY COURT
§
VELMA RUTH FITZGERALD, § OF
§
DECEASED § HOPKINS COUNTY, TEXAS
REQUEST FOR PRODUCTION
TO: JANET NEAL STANLEY and TRUITT SEWELL, by and through attorney of
recor·d, Chad Cable, 323 Gilmer St., Sulphur Springs, TX 75482:
NOW COMES CA RLTON SEWELL, Defendant, and pursuant to Rule 192 and 196
of the Texas Rules of C ivil Procedure, requests Janet Neal Stanley and Truitt Sewell to
produce and permit the inspection and copying of items requested in Exhibit " A" at 6940 TX
Hwy . II E .. Sulphur Springs, TX 75482, immediately upo n the expiration of thirty (30) days
fo llowi ng the date you are served with this set of requests for production .
If a docu ment requested hereunder has already been produced, in response to a
previous request for productio n, subpoena, o r order in this litigation , it need not be produced
again. However, any such doc uments previously produced should be identified by date,
description and paragraph herein to which the documents are relevant.
Respectfully submitted,
Carlton Sewell, Defendant
6940 TX Hwy. ll E.
Sulphu r Spri gns, TX 75482
903.335.0145
Request for Production Page 1
CERTIFICATE OF SERVICE
I certify that on , 2010, a true and correct copy of Request for Production was
served on each attorney of record or party in accordance with the Texas Rules of Civi I Procedure
via hand deli very:
Chad Cable, 323 Gilmer Avenue, Sulphur Springs. TX 75482.
Carlton Sewell
Request for Production Page 2
DEFINITIONS AND INSTRUCTIONS
I. As used herein , the terms "you" and "your" shall mean the Proponents, Janet
Neal Stanley and Truitt Sewell, their attorneys, agents and all other natural persons or
business or legal entities acting or purporting to act for or on behalf of Proponents, whether
authorized to do so or not.
2. As used herein , the term "documents " shall mean all writings of every kind ,
source and authorship, both originals and nonidentical copies thereof, in your possession,
custody or control , or known by you to exist, irrespective of whether the writing is one
intended for or transmitted internally by you, or intended for or transmitted to any other
person or entity, including without limitation, any governmental agency , department,
administrative or private entity or person. The term shall include handwritten , typewritten ,
printed. photocopies, photographic, or recorded matter. It shall include communications in
words, symbols, pictures, sound recordings, fi lms, tapes, and information stored in , or
accessible through, computer or other information storage or retrieval systems, together with
the codes and/or programming instructions and other materials necessary to understand and
use such systems. For purposes of illustration and not limitation, the term shall include:
affidavits, agendas, agreements, analyses , announcements, bills, statements, and other records
of obligations and expenditures, books , brochures, bulletins , calendars, canceled checks,
vouche rs , receipts and other records of payments, charts, drawings; check registers,
checkbooks. circulars, collateral files and contents, contacts, corporate bylaws, corporate
charters, correspondence, credit files and contents, deeds of trust, deposit slips , diaries, drafts ,
files, guaranty agreements, instructions , invoices, ledgers, journals, balance sheets, profits and
loss statements, and other sources of financial data; letters , logs , notes or memoranda of
telephonic or face-to-face conversations, manuals , memoranda of all kinds, to and from any
persons, agencies , or entities; minutes, minute books, notes , notices, parts lists, papers, press
releases, printed matter (including books , articles, speeches, and newspaper clippings),
purchase orders, records, records of administrative, technical and financial actions taken or
recommended ; reports, safety deposit boxes and contents and records of entry, schedules,
security agreements, specifications, statement of bank accounts, statements , interviews, stock
transfer ledger, technical and engineering reports, evaluations, advice, recommendations,
commentaries, conclusions, studies, test plans, manuals , procedures, data , reports, results and
conclusions, summaries, notes, and other records and recordings of any conferences,
meetings, visits, statements , interviews or telephone conversations, telegrams , teletypes and
other conununications sent or received, transcripts of testimony, UCC instruments, work
papers, and all other writings, the contents of which relate to , discuss, consider or otherwise
refer to the subject matter of the particular discovery requested .
In accordance with Tex.R.Civ.P § 102.7, a document is deemed to be in your
possession, custody or control if you have either actual physical possession of a document or
constructive possession of the document. Constructive possess ion means that you have a
superior right to compel the production of such document or a copy thereof from a third party
Request for Production Page 3
having actual physical possession of the document.
3. " Decedent" means Velma Ruth Fitzgerald.
4. " Person" or "persons" means any natural persons, firms , partnerships,
associations, joint ventures, corporations and any other form of business organization or
arrangement, as well as governmental or quasi-governmental agencies. If other than a natural
person. include all natural persons associated with such entity.
USE OF DEFINITIONS
The use of any particular gender in the plural or singular number of the words defined
under paragraph " 1 ", " Definitions" is intended to include the appropriate gender or number as
the text of any particular discovery may require .
TIME PERIOD
Unless specifically stated herein , all information herein requested is for the time period
from January 1, 2007 through the date of the documentation responding hereto. However , if
info rmation clarifies the estate, please detail such documentation .
DESCRIPTION OF WITHHELD MATERIAL OR INFORMATION
Pursuant to rule 192.2(b), Tex.R.Civ.P., if you have withheld any material or
information from production, then within 18 days after service upon Contestant's counsel of
your Responses to Request for Protection, please file a response that:
a. Describes the information or materials withheld that, without revealing the
privileged information itself or otherwise waving the privilege, enables other
parties to assess the applicability of the privilege; and
b. Asserrs a specific pri vilege for each item or group of items withheld.
Request for Production Page 4
\
Exhibit "A"
REQUESTS FOR PRODUCTION
Request for Production No . 1: Please produce all documents related to this lawsuit given
to, obtained. reviewed , or prepared by, (i) each person whom you intend to call as an expert
witness in this lawsuit ; and (ii) each person used for consultation and who is not expected to
be called as a witness at trial if (a) the consulting expert's work product forms a basis either in
whole or in part of the opinions of an expert who is to be called as a witness, or (b) the
consulting expert 's report or work product is reviewed by or received by the expert who is to
testify in this case.
RESPONSE:
Request for Production No . 2 : Please produce all documents which relate, directly or
indirectly, to the physical and/or mental condition of Decedent, Velma Ruth Fitzgerald , during
the period beg inning January 1, 2007 through her death on December 31 , 2007.
RESPONSE:
Request for Production No . 3 : Please produce any witness statement(s) obtained by
Proponent to dare .
RESPONSE :
Request for Production No. 4 : Please produce any and all documents which relate , either
directly or indirectly , to Proponents ' contention that Decedent lacked testamentary capacity on
August 8, 2007 .
RESPONSE:
Request fo r Production No . 5: Please produce all documents which relate , directly or
indirectly, to Proponents ' contention that Carlton Sewell exercised undue influence over
Decedent during the period beginning January 1, 2007 , through and including the date of
Decedent's death on December 31 , 2007.
RESPONSE :
Request for Production Page 5
EXHIBIT "B"
NO. POS-13106
IN THE ESTATE OF ) IN THE COUNTY COURT
)
VELMA RUTH FITZGERALD ) AT LAW OF
)
DECEASED ) HOPKINS COUNTY, TEXAS
ORDER ON CONTESTANTS' NOTICE OF WITHDRAWAL
AND REPUDIATION OF CERTAIN DEEMED ADMISSIONS
The Court acknowledges Contestants' Notice and Repudiation of Certain Deemed Admissions.
The Court ORDERS that Admissions 1, 3, 5, 8, 9, 14, 15, 16 are hereby withdrawn and made of
no effect. The Court ORDERS that Contestants' Motion for Summary Judgment is likewise withdrawn
and made of no effect. The Court reiterates its prior order that the withdrawal of deemed admissions by
Carlton Sewell as to Admissions 2, 4, 6, 7, 10, 11, 12, 13 is denied, the Court finding that Carlton
Sewell did not have "good cause" for withdrawal of such Admissions in that he acted with "conscious
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TRUE AND CORRECT
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FILED IN HOPKINS
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EXHiBIT "C"
NO. POS-13106 FILED FO
HOPKINS CO/~-J~~C~~D
IN THE ESTATE OF ) IN THE COUNTY COifMf ' . '-XAS
) JUL - b A 8: S1
VELMA RUTH FITZGERALD ) AT LAW OF DEBet-
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DECEASED ) HOPKINS COUNTYbTEXAS R/{
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- - - DEPUTY
CONTESTANTS' NOTICE OF WITHDRAWAL AND REPUDIATION
OF CERTAIN DEEMED ADMISSIONS
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Truitt Sewell and Janet Neal Stanley, Contestants, filing this their Notice of
Withdrawal and Repudiation of Certain Deemed Admissions and would respectfully show the Court as
follows:
I.
On May 13, 2010, Contestants served on Carlton Sewell Contestants' First Request For
Admissions. Carlton Sewell did not timely respond to the request and the admissions were, therefore,
deemed to be admitted. On January 12, 2015, Contestants' attorney filed a Certificate of Deemed
Admissions, setting forth the admissions that were deemed as a result of Carlton Sewell's failure to
timely respond.
Please take notice that Contestants hereby withdraw from the list of "deemed" admissions,
Admissions numbers I, 3, 5, 8, 9, 14, 15 and 16, the admissions which would have had merits-
preclusive effect. And, hereby repudiates those deemed admissions and asserts that such admissions
will not be used or relied upon in any manner nor in any context, including at the trial of this matter, in
any summary judgment proceeding, in any mandamus proceeding, and in any appeal. Contestants also
hereby withdraw and repudiate their Motion For Summary Judgment which was filed in this case.
II P age
Respectfully submitted,
Chad Cable
State Bar No. 03575300
323 Gilmer Street
Sulphur Springs, Texas 75482
(903) 885-1500 Telephone
(903) 885-7501 Telecopier
ATTORNEY FOR CONTESTANTS
2 1P age