SFSCSTSE CECE TEUUCTE TEST SSSSSSDIS HOH S TC OCOOCUVUCVGVvvwsw FILED SEP 15 2014 HEATHER L. SMITH CLERK OF APPELLATE COURTS No. 14-111505-A, IN THE COURT OF APPEALS OF THE STATE OF KANSAS STUART N. AULD PLAINTIFF-APPELLANT, AMERICAN FAMILY INSURANCE AMERICAN FAMILY MUTUAL INSURANCE COMPANY AMERICAN FAMILY INSURANCE GROUP OF MADISON, WI (AFI) DEFENDANT/APPELLEE BRIEF OF APPELLANT APPEAL FROM THE DISTRICT COURT OF JOHNSON COUNTY, KS HONORABLE DAVID HAUBER (Court 7), JUDGE IN DISTRICT COURT CASE 12CV4701 SUBMITTED BY: STUART N. AULD 9135 MANOR ROAD LEAWOOD, KS 66206 913-888-2300TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES & STATUTES 34 NATURE OF THE CASE 5 STATEMENT OF PERTAINENT FACTS, LAWS & EVENTS 14 ERRORS IN JURY INSTRUCTIONS & UNFAIR TRIAL TACTICS & ADDITIONAL QUESTIONS & ARGUMENTS BEFORE THIS COURT 30 OTHER ARGUMENTS AND AUTHORITIES 37 A. STANDARD OF APPELLATE REVIEW 37 B. WITHOUT LEGISLATIVE AUTHORITY, THE TRIAL COURT VIOLATED MANDATORY STATUTORY PROVISIONS AS STATED IN K.$.A. 23 201(a); THE MOST RELEVANT JURY INSTRUCTIONS ARE OMITTED AND/OR IN ERROR AND ARE VOID, INVALID AND/OR VIOLATE NOT ONLY THE LAW, BUT THE PRIOR AGREEMENTS OF THE PARTIES- NANCY N. AULD TRUSTS, PRE-MARITAL, AGREEMENT AND EVEN AULD, SR’S SET ASIDE OF THE SUBJECT PROPRERTY (HE DID NOT OWN) TO PLAINTIFE/APPELLANT: 37 C. JUDGMENT SHOULD BE SET ASIDE, VACATED AND/OR ADDITIONAL PROCEEDINGS ORDERED DUE TO IMPROPER JURY INSTRUCTIONS, MATERIAL MISREPRESENTATIONS (FRAUD AND DECEIT USED TO OBTAIN A FAVORABLE JUDGMENT, SURPRISE TRIAL TACTICES AND FAILURES TO DISCLOSE JURY REQUESTED DOCUMENTS; SUBMITTED IN BAD FAITH: 40 D. POST TRIAL MOTIONS: 42 CONCLUSIONS 45 EXHIBITSTABLE OF AUTHORITIES CASES: Key v. Hein, Ebert & Weir, Chtd., 265 Kan, 124, 129, 960 P.2d 746 (1998) Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla, 2000) Greenwald v. Triple D Properties, Inc, 424 So, 2d 185, 187 (Fla. 4th DCA 1983) Costa Bella Development Corp. v. Costa Development Cosp., 441 So. 2d 1114 (Fla 3rd DCA 1983). US. General Insurance Co. of America v. Pathfinder Petroleum Co., C.C.A. Cal. 145 F.2d 368, certiorari denied 65 S. Ct. 679, 324 U.S. 844, 89 L.ED 1406; MO- Cox v. Owensville Mutual Ben, Aid Asst App., 185 S.W. 2d 28), (See GA- Pennsylvania Casualty Co, v, Pund, 32 S.E.2d 925, 72 GA app. 49). Brennan v. Farmers Alliance Mut. Ins. Co,, 961 P.2d 550, 556 (Colo. App. 1998) Bucholtz v. Safeco Ins. Co,, 773 P.2d 590, 592-93 (Colo. App. 1988) Goodson v. Am. Standard Ins, Co,, 89 P.34 409, 414 (Colo, 2004) Zilisch v, State Farm Mut. Auto Ins. Co., 995 P.2d 276, 279 (Ariz. 2000) Overland Park $ & L Assin v Braden, 6 K.A.2d 876, 879, 880, 636 P.2d 797 (1981) Barkley y, Toland, 7 K.A.2d 625, 626, 628, 629, 646 P.2d 1124 (1982) Kan-Board of Com'ss of Crawford County v, Radley, 8 P.24386, 134 Kan. 704) Tex-In Interest of Baby Girl T. App.2 Dist, 671 S.W. 2d 654 US.-Andrean v, Secretary of U.S. Army, D.Kan., 840 F.Supp. 1414 ‘Me-Consolidated Rendering Co. v. Martin, 145 A. 896, 128 Me. 96, 64 A.LR. 790 Kan-Matter of Marriage of Welliver, 869 P.2d 653, 254 Kan. 801 ‘Wash-Morison v. Berlin, 79 P. 1114, 37 Wash. 600 Kan-Cramer v. Kansas City Rys. Co., 211 P.118, 112 Kan 298 Kan-Moore v. State Bank of Burden, 729 P2d 1205, 240 Kan, 382, certiorari denied 107 S.Ct. 2484, 482 U.S, 906, 96 L.Ed.2d 376 Kan-Wigington v. Mid-Continent Royalty Co., 288 P. 749, 130 Kan. 785 12 12 12 12,22 13,22 13,22 13 13 13 4 4 al 9,39 9,39 10, 39 10, 39 10, 39 10, 39 10, 39 10 10, 11Kan- Kampschroeder v. Kampschroeder, 887 P.2d 1152, 20 Kan. App.2d 361 uw ‘Tex- Chien v, Chen, App.-Austin, 759 8, W. 2d 484 ul Gillespie v. Seymour, 250 Kan. 123, 129, 923 P2d 782 (1992) 37 State v, Wood, 231 Kan. 699, 701, 647, P.2d 1327 (1982) 38 ‘Martindale v. Robert T. Tenny, M.D., P.A., 250 Kan, 621, 632, 829 P.2d 561 (1992) 38 ( Clayton v. Alliance Mutual Casualty Co., 213 Kan, 84, 85, 515 P.2d 115 (1973) 39 Bamett v. Crosby, 5 Kan. App.2d 98, 99 612 P2d 1250 (1980) 39 y Brown v. USAA Cas, Ins. Co., Supra, 17 Kan. App.2d at 549-550 38,39 ( Horace Mann Insurance Co, v. Ammerman, 630 F. Supp. 114, 119 (D-Kan, 1986) 40 x 82 CIS. Statutes 328, p. 635 [citing Ballweg v. Farmers Ins. Co., 228 Kan, $06, 510-11, 618 P2d 1171 C (1980)] 38 \s Intermagnetics Am., Inc. vs, China Int'l Trust and Inv. Corp., 926 f2d 912, 916-917, (9th Cir. 1991); oO Brown v. Combined Ins. Co, of America, 226 Kan. 223, $97 P.2d 1080 (1979); United Bank of C Pueblo v. Hartford Acc. & Indem, Co., $29 F.2d 490, 494 (10th Cir. 1976), 30 ¢ ‘Mark Twain Kansas City Bank v, Kroh Brothers Dev. Co., 250 Kan. 754, 764, 863 P.2d 355 (1992); In re. ©) Estate of Maxedon, 24 Kan, App. 2d 427, 434-35, 946 P.2d 104 (1997). 45 ~ Galemore Motor Co., Inc. v. State Farm Ins. Co. $13 $.W.2d 161(11) (MO 1972); Richards v. Michelin ( Tee Corp 21 F34 J048, 1054-55 (1th C1954); Royal Typewriter Co, v.Xeographic Supplies Com, ( 719 F.2d 1092, 1099 (11th Cir. 1983) © STATUTES r KS.A. 60-2102(4) 6,38 : KSA. 60-2102(3) 37 f KS.A. 60-250, 60-252 3 kK Subsection (b)(6) of K.S.A. 60-260 4 , KS.A. 60-256 46 ( KS.A. 60-259 38 18 USC 1962 (a)(b\(o(@) a : K.S.A. 58-2405 & K.S.A. 58-1203(b) 45 SUPREME COURT RULE DR 7-102 & DISCIPLINARY RULES (K.S.A. 7-106 NEEDS REINSTATMENT) 411. NATU 1. In Key v. Hein, Ebert & Weir, Chtd,, 265 Kan, 124, 129, 960 P.2d 746 (1998), this court continued to follow the path laid down in Hess: "[T]his court has rejected entreaties to make the requirements of the notice of appeal technical or burdensome. [Citation omitted] Its approach has been to use a broad or liberal construction to secure the just, speedy, and inexpensive determination of every action or proceeding’ required by the code of civil procedure." The decision in Key is controlling in this case. In Key, the notice of appeal appealed from a court order entered December 19, 1996, and "from each and every order entered contrary to plaintiff" 265 Kan. at 128, The appellee in Key sought to limit the appeal only to the issues touched on in the order of December 19, 1996. The court construed the notice of appeal liberally and held that it covered earlier court orders not specifically designated. It noted that the catch-all language "obviously embraces the entry of summary judgment." 265 Kan. at 130. Here to, Plaintiff is Appealing a number of matters going all the way back to before the trial where the Court denied this pro se motion for continuance and even new legal counsel as he was very concerned about the effect of AFT’s “Surprise” subpoena of Mr. Hammond (not having a clue as to what he was going to testify on), but knowing full well, (based upon his tortuous interference with this Plaintiff's expectancy of inheritance , (See KS cases: 11CV04594/14-111464), it would be some lie to prevent Plaintiff from collecting on his claims. Also, this look back is allowed by statute: K.S.A. 60-2102(4) states “In any appeal or cross appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable.” 2. Black's Law Dictionary defines “question of law” as: a question concerning the legal effect to be given to an undisputed set of facts. An issue which involves the application or interpretation of a law and hence within the province of the judge and not the jury. Black’s Law Dictionary 866 (6th ed. 1991). Clearly, a trial court’s decision regarding proper or improper jury 5C instructions involves a matter of law. And, while a party is entitled to have jury instructions submitted that represent his or her theory of the case, an instruction that fails so to do or incorrectly states the law, or is without foundation in the evidence or is not in accordance with say: the proper insurance contract's terms and conditions- should not be submitted to the jury. ‘This matter of law, involving proper jury instructions in this case, involves multiple errors by the Court and attorneys" in producing jury instructions not in accordance with the facts, evidence, the insurance contract and the law of this case. Resultantly, this with concealing of evidence requested to be reviewed by the jury (See ROA, Questions from the Jurors 7/18/13, #224, #225, #226), such as the Nancy N. Auld Trust documents in the record certainly on 7/1/13 and the insurance adjuster & agents reports (concealed) combined with false and multiple misleading claims by the Defendant/Appellee’s attorney, created a jury clearly wanting more information to verify facts and incapable of finding the proper section of the insurance policy for coverage’s since it was not provided in the jury instruction as to the supplemental water damages claims. This is especially true when multiple cause’s of loss (See Supplemental Water loss claims Brief History hereinafter) are allowed to be presented and considered by the jury with no corresponding jury instruction for each of said multiple causes of loss scenarios/set of facts requiring payment for the supplemental water damages losses covered under different sections of the policy. (i.e., the original loss report called in by John W. Auld, Sr. was for a defective hot ‘water hose to the basement washing machine bursting and causing water damages; The loss to ‘Auld, St. was paid under the sewer back up section of the policy to limit AFI’s loss exposure and at trial a Surprise 3” loss scenario/set of facts was presented to the jury that Auld, Sr. had someone put a large strainer over the basement walk out exterior door drain which got clogged and caused the water to back up into the basement seeping under the door and storm door.)3. Thus, we have in this case a proper jury decision, in part, that found Plaintif#! Appellant was indeed a family member living in the household and therefore an insured pursuant to the insurance policy contract (See ROA, Verdict form 7/18/13, #227). Yet, complete inability of the jury to figure out proper coverage’s and certain facts due to: 1) refusal of the Judge to provide documents in the record or in evidence to the jury when they requested it (nor did he ask the attorneys for the documents to provide to the jury); 2) the Court giving inaccurate jury directions/instructions- not taking the jury to the proper sections of the policy for payment for the differing facts/loss scenarios presented on the water damages supplemental claims; 3) the Court not restraining or prohibiting by estoppel or the motion in limine or it’s own orders the misdirection’s and frauds upon the court by Defendant/Appellee’s attorney and Mr. Hammond,- whose sole intent was delivery of false testimony on ownership of the stolen property (See Theft claims Brief History hereinafter) to see that Plaintifi/ppellant would not be able to collect. This is especially grievous when Plaintiff/Appellant files pleadings warning the Court and Plaintiff's attorney, Ms. Uvodich of numerous concerns on July 1, 2013, before trial and requesting a continuance and new attorney (See ROA Volume 1, Motion with Exhibits, #115) ‘The Court erred in not postponing the trial until Plaintiff's concerns were properly addressed choosing instead to virtually ignore the pro se pleadings. Certainly, a continuance would have allowed time for Ms, Uvodich to find out the nature of Mr. Hammonds testimony so she could have been ready to show the jury his deceit using documents he (Mr. Hammond) prepared!!! This “Surprise” testimony of Hammond tactic right before trial Ms. Uvodich was not prepared for and the Court erred in allowing it. It was for these clearly unprepared “Surprise tactic” reasons that this Plaintifi/Appellant was requesting a continuance and to obtain new legal counsel- because Ms. Uvodich did not know what Mr, Hammonds testimony was going to beand clearly she was ill-prepared for his lies, leading to claims of ineffective counsel. Mr. ‘Hammond’s claim that John W. Auld, Sr. or his trust owned the stolen property or at least 50% of it is a known lie using Mr. Hammond’s own prepared documents (See Exhibits “A” attached hereto and made a part hereof by this reference- this was part of Auld, Sr.’s Will docs prepared by Hammond that clearly shows the oriental rugs and plates, ete, going to Plaintiff, certainly effective upon Auld, Sr.’s death on 10/16/11, assuming he actually owned the property as Hammond testified, which he did not, Also, attached as Exhibit “A” please find Mr. Hammonds’ testimony transcript. Please also note the theft loss claims are made to AFI in or around December of 2011, a point in time when clearly this is Plaintiff/ Appellant owned property). John W. Auld, Sr. didn’t own it because the subject stolen property was already given to Plaintiff/Appellant by his mother from her Trust. (The Nancy N. Auld 1995 1* Trust and April 15, 2005 pre-marital Agreement prohibit John Auld, Sr. from interfering with any of her bequeaths- See ROA Exhibits to Motion, 7/1/13, #115 showing her trust owned all her personal property and provisions of pre-marital Agreement prohibiting interference with each others gifts to the 5 children, of which Plaintiff7Appellant is one), Mr. Hammond was involved in doing documents for these estates and knew this to be the truth, However, even ifthe didn’t or he forgot, Mr. Hammond's office prepared a document, (Again, See Exhibit “A”) wherein John W. Auld, Sr. (“Auld, Sr.”) also gives the same property to this Plaintiff (to reinforce the original intent of Nancy N. Auld and Lillian Klausen). Auld, Sr. passes away on October 16, 2011, so it is impossible for Auld, Sr. to own the stolen property embodied in the theft claim as he has already set this aside to Plaintiff/Appellant when the claim is made. ‘The theft claim was not ‘made until a month, or so, later, in December of 2011, even if Auld, Sr, did own the subject property prior to his death, which he did not. This Plaintiff” Appellant owned personal propertystored up stairs and already belonging to him, Plaintiff? Appellant and witness David Franklin both testified as being property owned by Stuart Auld and not Auld, Sr, 4, AFI’s deliberately poor investigation of the Plaintift/Appellant’s claims (focusing only on developing reasons to support not paving) precludes this insurer from obtaining any favorable judgment whatsoever. Clearly, an unbiased, professional and proper investigation of the facts in this case by AFI would have revealed that this insurer’s superficially viable defense concerning ownership of the stolen property (as to the theft claims) was based upon knowingly false representations by the 2 attorneys in order to obtain a favorable judgment, (A common illegal tactic used by KS attorneys as they fear not, being prosecuted and are rarely to never policed by the judges and the disciplinary administrator, which is to be expected when you have unscrupulous attorneys policing unscrupulous attorneys, but this is a whole other case, but judicial notice should be taken as this causes prolonged litigation and is virtually impossible to correct and obstructs justice or even the ability to achieve a semblance of justice. Please note the fraud and deceit is rampant and has occurred and been criminally used by JOCO attorneys in every case this litigant has been involved with over the last several decades), Mr, Hammond, is therefore easily proved a lier by the documents in the record in this case and KS cases: 11C-V04594/14-111464, which were acknowledged and made a part of this case in pre-trial orders, False and fraudulent testimony vitiates everything 5. A void judgment is one that has merely the semblance of a judgment without some essential element or elements on which its validity as such depends (Kan Board of Com'rs of Crawford County v. Radley, 8 P.2d386, 134 Kan, 704). A judgment is void when granted in contravention of a mandatory statutory provision (Tex Jn Interest of Baby Girl T, App.2 Dist, 671 S.W. 2d 654) or rendered by a Court which acted in a manner inconsistent with due process(US. Andrean v. Secretary of U.S. Army, D.Kan., 840 F.Supp. 1414). It has been said that a judgment must be either valid or void as a whole and that a judgment cannot be bad in part and ‘good in part, but wholly void if bad in part (Me Consolidated Rendering Co. v. Martin, 145 A. 21 896, 128 Me. 96, 64 A.LR. 790). A void judgment is not binding on anyone, it raises no Tien or estoppel and it does not impair or affect the rights of anyone, it does not even operate as a discontinuance of the action and may be attacked at any time by anyone (Kan Matter of Marriage of Welliver, 869 P.24 653, 254 Kan. 801). A valid judgment may be entered subsequently in disregard of the voidable portion of the judgment (Wash Morrison v. Berlin, 79 P. 1114, 37 Wash, 600). Where one reposes trust and confidence, as one would ina Court of Law, it is deemed fraudulent for one to misrepresent the law to another and where there was inequitable conduct on the part of the person who made the misrepresentation or where to apply it would be against public policy, an actionable misrepresentation (fraud) exists (Kan Cramer v. Kansas City Rys. Co., 211 P.118, 112 Kan 298). Fraud has been defined as any cunning, deception, or artifice used to circumvent, cheat or deceive another (Kan Moore v. State Bank of Burden, 729 P2d 1205, 240 Kan. 382, certiorari denied 107 S.Ct. 2484, 482 U.S. 906, 96 L.Ed.2d 376). it has been stated that fraud is better left undefined and some courts have said that the common law not only fails to define fraud but perhaps asserts as a principle that there shall be no definition. Furthermore, it is frequently stated that owing to the multiform character of fraud and the great variety of attendant circumstances no definition which is definite, invariable and alt inclusive can be framed (Kan Wigington v. Mid Continent Royalty Co., 288 P. 749, 130 Kan. 785). However, fraud exists where there is a breach of legal or equitable duty, where deception or perversion of the truth by statements, acts or omissions, intending or operating to injure another by depriving him of any property or right or obtaining any promise or unlawful or unfair 10advantage of another, not constituting or not regarded'as a tort or offense of any distinct class (Kan Wigington v. Mid Continent Royalty Co., 288 P. 749, 130 Kan, 785). Constructive Fraud is fraud that arises by operation of law from conduct, which if sanctioned by law, would secure an ‘unconscionable advantage. Itis a breach of legal or equitable duty which irrespective of the moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests (Kan Kampschroedor ‘ampschroeder, 887 P-2d 1152, 20 Kan. App.2d 361). ‘The legal duty may arise from a statute, a contract or a trust (Tex_Chien v. Chen, App. Austin, 759 S.W. 2d 484). 6. Because the Plaintift/ Appellant presented direct factual evidence in this case that he suffered losses covered by the insurance contract, there was no basis at law, under the contract or in equity to instruct the jury according to the wrong sections of the policy for coverage of the insured peril nor for coming up with at least 2 new alternate fact scenarios other than the one originally reported and accepted by the insured and the agent (water damages claims from broken hot water hose to washer in the basement), Further, the calling into question of Plaintiff/Appellant’s ownership of the stolen property as a “Surprise” tactic at trial using the knowingly perjured testimony of Mr. Hammond prevented the jury from being able to make a proper decision on the theft claims, It was not necessary for Plaintiff/Appellant to prove who stole the property since a police report was filed with the city of Leawood, KS. 7. Is the withholding of requested documents from this Jury a form of obstruction of justice? The Nancy N. Auld Trust documents the Court had in the record are not provided as requested by the jury so they could verify ownership. Judge Hueber was made aware of Mr. Hammond's wrong doings in tortuously interfering with Plaintif¥/A ppellants inheritance and expectancy of inheritance from his parents before the trial and failed to protect this Plaintifi aAppellant and the jury from hearing Mr. Hammond false testimony on ownership of the stolen property. In short, what law allows courts to render a decision that is contrary to the evidence and a prior insurance agreement, estate documents and the pre-marital Agreement of the parties? Is this not a breach of Article 10 of the U.S. Constitution concerning prohibitions on impairing the obligations of contracts? 8, When Exhibits, pre-marital Agreements and the like just mentioned are inconsistent with Mr, Hammond’s ownership testimony and allegations of material fact are made as to whom the real owner of the stolen property is, such allegations of Mr. Hammond are canceled out and neutralized. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla, 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla, 3rd DCA 1983). Any exhibit attached to a pleading shall be considered a part thereof for all purposes. Because the facts revealed by Plaintiff7Appellant’s Exhibit “A” disproves Hammond allegations as to the ‘ownership of the subject stolen property at the time of theft and at the time of claim, those allegations are neutralized and AMI’s ownership defense is rendered false and objectionable. 9. As for the PI insured peril by the insured at the time (stated in the adjuster’s report and agent loss report, ie. break in the hot water hose line to the washer), was not properly before this tiff/A ppellant’s supplemental water damages claims, the stated Court and the Jury to be re-determined; Matters not originally pleaded by Defendant/ Appellee’s AFI (alternate theories causing water damage losses on Supplemental Claim and Plaintiff does not own property that was stolen on Theft Claim) are or were waived, estopped from presentation to the jury and/or the evidence as to such matters was inadmissible. (See U.S.- General Insurance Co. of America v. Pathfinder Petroleum Co., 12C.CA, Cal. 145 F.2d 368, certiorari denied 65 8. Ct. 679, 324 U.S, 844, 89 L.ED 1406; MO- Cox v. Owensville Mutual Ben. Aid Assn App., 185 8.W. 2d 28). ‘The Defendant/Appellee can not settle a claim and plead on one set of facts and defend on another. (See GA- Pennsylvania Casualty Co. v. Pund, 32 8 E.2d 925, 72 GA app. 49). There is a variance between the Defendant/Appellee’s pleadings and the proof they provided, which served to “Surprise” and provide unfair trial. This was error or mistake. There is no counter claim of this nature st 1g multiple alternative causes of water damages and claims that Plaintiff/Appellant did not own the subject property stated in Defendant/Appellee’s Answer or the pre-trial Order and this ‘was a surprise trial tactic, at the minimum, and more probably fraud and deceit used upon the Court and jury to obtain a favorable judgment. 10. In every insurance contract, there is an implied covenant of good faith and fair dealing. Brenan v. Farmers Alliance Mut. Ins. Co,, 961 P.2d 550, 556 (Colo, App. 1998); see also § 10-1-101, CR.S. 2010 (declaring that persons providing insurance services to the public must “be at all times actuated by good faith”). This duty of good faith and fair dealing continues unabated during the life of an insurer-insured relationship, including through a lawsuit or arbitration between the insured and the insurer, although the adversarial nature of such proceedings may suspend the insurer’s obligation to negotiate as a reflection of good faith. (See Bucholiz . Safeco ins. Co., 773 P-2d 590, 592-93 (Colo. App. 1988), An insurer’s breach of the implied duty of good faith and fair dealing may give rise not only to a breach of contract claim but also to tort liability. Goodson v. Am. Standard Ins. Co., 89 P.3d 409, 414 (Colo, 2004). Such liability recognizes the special nature of insurance contacts, and particularly the disparity in bargaining power between the insurer and the insured. See id. The basis for tort liability in this context is “the insurer’s conduct in unreasonably refusing to pay a claim and failing to act in 13good faith, not the insured’s ultimate financial liability.” Id, Thus, the fact that an insurer eventually pays an insured’s claim will not foreclose a lawsuit based on the insurer's conduct prior to payment, The Arizona Supreme Court’s has stated that “[w]hile it is clear that an insurer may defend a fairly debatable claim, all that means is that it may not defend one that is not fairly debatable. But in defending a fairly debatable claim, an insurer must exercise reasonable care and good faith.” Zilisch v. State Farm Mut, Auto Ins, Co., 995 P.2d 276, 279 (Ariz, 2000). Stated another way, fair debatability is not a threshold inquiry that is ‘outcome determinative as a matter of law, nor is it both the beginning and the end of the analysis in a bad faith case. See id. at 279-80, Thus, “fair debatability” alone does NOT defeat a bad faith claim asa matter of law. AFT has contested liability in bad faith without any reasonable basis for doing so by stooping to the level of presenting false perjured testimony ‘on ownership of the subject stolen property and faiting to properly investigate the original claims of water damages from a broken hot water hose to the washing machine in the basement in the first place, and instead tries to limit it’s exposure by paying under the wrong section of the policy, then years later during Plaintiff/Appellant’s supplemental water damages claim process coming up with multiple alternative scenarios at trial (as a surprise tactic), which AFT is estopped by law from doing. AFI has contested it’s liability in bad faith using “Surprise” tactics. This is outrageous conduct and an abuse of the legal process warranting damages, including exemplary damages om top of actual and pecuniary losses. IL. STATEMENT OF PERTAINENT FACTS, LAWS & EVENTS A. Supplemental Water Damages & Mold/Fungi Claims: 11. Plaintiff7 Appellant incorporates the above and below paragraphs as if fully set forth herein, John W. Auld, Sr., an insured under homeowners HOS Gold Star Special Deluxe Elite 14policy #15-D$4327-01 with American Family Insurance, the Defendant/Appeliee herein, filed a claim against Defendan/Appellee in June of 2010, for water damages resulting from a break in downstairs washing machine water hose. This claim was first filed with Chris Woody, an agent of American Family Insurance, The original claim was also forwarded on, reviewed by and endorsed by a professional claims adjuster before being further scrutinized at the home office where it was determined, according to AFI, to be paid by Defendant/Appellee AFI under a different section of the policy (Sewer backup) that would limit Defendant/Appellee’s claim exposure to $5,000 although approximately double this amount was paid to John W. Auld, Sr., which begs the question of how this section of the policy ONLY was applied or at least requires part of the claim to be paid from some other section of the policy. Thus, the Defendant/Appellee must have paid from other sections of the policy as by the Defendant/Appellee’s own admissions the claims limit for the back-up sewer endorsement is $5,000 and AFI paid John W. Auld some $10,000+, ‘The insurance agent and claims adjuster both recorded this claims information from John W. Auld, Sr., including the name of the plumber who made the repair on the hot water hose, Neither the insurance agent (who took the claim over the phone and sent the initial report in) nor the claims adjuster (who personally inspected the premises and processed John W, Auld, Sr.’s claims) showed up for trial even though they were listed to testify, Furthermore, these 2 individuals written claims information, adjusters report, other records and loss reports have been fraudulently concealed from this Plaintiff, this Court and the Jury that asked for them. 12, During Jury deliberations the ist question from the jury was: where is the claims adjusters report??? Indeed, and where is the loss report from the Agent??? Plaintiff/Appellant, nor any other person in society, can not have a fair jury trial when these trial tactics are used. ‘This is a disservice to this Plaintiff/ Appellant and to the public at large resulting from failed State 15and Federal government policing of unethical, unscrupulous and possibly illegal acts by attorneys as it is a form of obstruction of justice. No ordinary person should have to go through this %"&* of a jury trial to have a legitimate supplemental insurance claim or theft claim paid. Clearly, there is something wrong here and the State Legislature and Court system has failed or refuses to protect the public, the primary function of government. The Jury should NEVER be put in the position of being denied the right to look at evidence it is asking to review. Any law or procedure allowing this should be immediately revoked or repealed as unconstitutional and obstruction of justice. Judicial side bar: Only a communistic totalitarian State Court system would engage in such concealment and failure to disclose- or allow it. If this jury requested, written evidence had been divulged and not concealed, and proper jury instructions written referencing proper sections of the insurance policy, a completely different outcome for this Supplemental claim and theft claim would have occurred. There is no compelling reason to deny the requests of the jury and the Court and attorneys engaged in obstruction of justice by so doing when there was a duty to disclose. Equal application and protection under the law is impossible under such circumstances. The State perpetuates these wrong doings by failing or refusing to investigate and discipline/remove deceitful, criminal attorneys when complaints are made, as the disciplinary administrator has done for decades now. ONLY NON-ATTORNEY CITIZENS GRAND JURORS SHOULD BE ALLOWED TO HEAR COMPLAINTS AND FILE INDICTMENTS AGAINST ANY ATTORNEY, OR JUDGE FOR THAT MATTER. THIS WOULD CLEAN THINGS UP IN SHORT ORDER AS ATTORNEYS WOULD NOT FEEL FREE TO IGNORE THE LAWS, USE FRAUD AND DECEIT TO OBTAIN A FAVORABLE JUDGEMENT AND ENGAGE IN OTHER CRIMINAL ACTS BELIEVING THEY ARE ABOVE THE LAW! PARDON THE BLUNT DIGRESSION, NO DISRESPECT INTENDED, Plaintifi/Appellant again submits that the Defendant/Appellee and their attorney were estopped from raising 3 different scenarios for the supplemental water damages at the trial that were not pleaded in their Answer or any counter claims (See Answer of AFT not listed in ROA), ‘Resultantly, the Jury was confused with 3 possible causes for the water damages claims and no corresponding jury instruction for each possibility or combination thereof, (Plaintiff/Appellant 16alleges Defendant/Appellee was estopped from presenting multiple theories after accepting John W. Auld, Sr.’s original claim, (but paying under different sections of the policy) as Plaintiff's claim was a Supplemental claim from the same occurrence or ongoing from that occurrence of an insured peril, supplemental to the claim submitted by John W. Auld, Sr.). The 3 possible causes presented to the Jury were: 1) break in the hot water line hose to the downstairs washing machine as originally submitted by John W. Auld, Sr. and testified to by this Plaintiff; 2) flooding from heavy rains causing backup of the sewer lines (this section of the policy limited to $5,000 that the Defendant/Appellee claims it paid from); 3) John W. Auld, Sr. negligently had someone put a strainer over the outside basement door drain causing water to back up and come through the walkout basement storm door and door. 13, Resultantly, the constitutional right to a fair and impartial trial by a jury of peers was impossible because the Jury lacked several necessary documents it requested to review and proper jury instructions citing proper sections of the policy to make proper decision, Further, the Defendant/Appellees’ concealment of evidence and vexatious refusal to pay Plaintiff's legitimate claims involves an act of malice by the Defendant/Appellee and it’s attorney, who is an agent of the Court, in that false testimony and concealment of evidence was used to obtain a favorable judgment not otherwise possible if proper investigation of the true facts and evidence had occurred or was not deliberately ignored by AFI. Even so, the aforementioned claim made by John W. Auld, Sr., was formally filed, reviewed and accepted by duly authorized ageni(s) of Defendant/Appellee American Family Insurance. Defendant/Appelice is bound by the acts of it’s own agents under agency law. The Defendant/Appellee’s own claims adjuster initially determined that coverage did apply in this case and that an insured peril under the contract was involved, i.e, hot water line hose breakage. Because coverage is provided for this peril in the W7subject insurance contract, payment of this Supplemental Claim is required under contract law whether the jury was confused or not: See first sentence after paragraph 8. of policy on page 2 of 3; (See ROA AFI policy attached to Petition filed 6/11/12, Vol. 1, #5): "We do cover any resulting loss to property... not excluded or excepted in this policy. When this policy includes the Gold Star Elite Endorsement... Coverage A (dwelling) and Coverage B (personal property) is amended as follows: Other causes of loss: a. wear and tear, marring, scratching, deterioration; b. inherent vice, latent or inherent defect, mechanical breakdown; ¢. smog, rust, corrosion, frost, condensation, wet or dry rot; d. smoke from agricultural smudging or industrial operations, ¢. settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings; £ birds, vermin, rodents, insects, or domestic animals If any of these causes water or steam to escape from a plumbing, heating, air conditioning or automatic fire protection sprinkler system or household appliance, ‘we cover loss caused by water or steam, We also cover the cost of tearing out and replacing any part of a building necessary to repair the system or appliance,” (Note: there is no specific exclusion for an outside floor drain or a water line hose from the insured’s own definition of “plumbing system” or “household appliance”). 14, There was no Jury Instruction for this so that the Jury could decide in favor of Plaintiff pursuant to these contract terms and conditions for the actual claim and insured peril teported, i.e. “defective hot water hose bursting on washing machine in the basement.” The claims adjuster’s report clearly must have determine the water was NOT outside ground water as this was apparently not a covered peril- according to Defendant/Appellee’s legal counsel, Further, as the pictures’ evidence clearly shows, the remaining water on the carpets ‘was too clean to be sewer back up water or outside ground water which would have dirt and leaves in it, The only reason for Defendant/Appellee and it’s legal counsel to fraudulently conceal the agents loss report and the claims adjuster’s report is due to their having evidence that is damaging to it’s case, i.e. John W. Auld’s reporting of the claims as- “defective hot water hose bursting on washing machine in the basement.” Instead of divulging this when there was a duty 18to disclose after jury request, Defendant/A ppellee and it’s legal counsel made accusations against Plaintiff and his deceased father they were estopped from claiming (in order to confuse the Jury even more) by claiming that John W. Auld, Sr. had someone place a large strainer over the outside basement drain...a completely different alleged cause of water damages, but also an insured peril under negligence per se, covered under the $1,000,000 liability section of the policy (See policy attached as Exhibit to ROA Petition filed 6/11/12, Vol 1, #5). Yet, again after arguing this is what occurred, no jury instruction was presented allowing the Jury to find coverage under this section of the policy, if they believed this new set of facts is what occurred Plaintiff has made demands that the Court do an “in camera” inspection of these documents- insurance adjusters report and agent’s claim intake report- post trial, which it did not do nor has Defendant/Appellee produced them, even after these complaints and issues have been raised. 15, As stated, acceptance by the Defendant/Appellee’s ageni(s) ofa claim was acceptance by the principal, ic, the Defendant/Appellee herein. Thus, as a matter of contract and agency law, this Plaintifi/Appellant’s supplemental claim must also be allowed under the same stated insured peril as claimed by the insured, John W. Auld, Sr...not some new and different unsubstantiated allegation and not made payable under some different section of the policy to limit the insurance company’s claims exposure. Clearly, the above insurance policy page 2-3., contract language in paragraph 13., above, provides for coverage of a defective hot water line hose bursting due to ordinary wear and tear or breakdown or deterioration or defects, Clearly, under this HOS policy this insured peril provides coverage under Coverages A, Dwelling & B, the Personal Property section of the policy. It cannot be unilaterally denied by Defendant/ Appellee under some new and different uninsured loss theory. (This Court should know that this new theory of AFI brought forth for the first time at trial, was based upon an accusation made by 19Plaintiff where in a conversation that Plaintiff/Appellant had with his father- while Plaintiff! Appellant was away from the home in CO, Jolin W. Auld, Sr. said he might try this (putting a strainer over the drain) to see if it would keep the leaves from accumulating since Plaintiff was not there to help him, However, when questioned about this in his deposition, John W. Auld, Sr denied he actually did this.) Regardiess, it was a jury instruction error of law by the Court to have the jury re-determine what Auld, Sr. had reported and AFI agents accepted as reason for loss. This was done and agreed to in or around June of 2010, when the water damages were reported. It was also an error of law, since the Jury was being put in the position to redetermine the facts for the supplemental water damages claims, to not provide 3 separate jury instructions for the 3 separate fact scenarios presented. In Plaintiff/Appellants’ view, the attorneys and the ‘rial court erred in their jury instruction on the supplemental water damage claims as Plaintiff submitted a supplemental claim based upon the same insured peril submitted by John W. Auld, Sr. as accepted by American Family Insurance agent in his initial clainvloss report to AFI. Tt ‘was improper, Court error and in fact a form of tortuous interference with the parties right to contract and settle to have a jury (without all the documents, evidence available at the time, i. agent intake loss report and claims adjuster’s report and plumber’s report and without the proper legal knowledge) re-determine what was already done and agreed to by the parties originally when only the Auld, Sr. claim was filed and settled (back in June of 2010). 16, Thus, the jury, through no fault of their own, was not provided proper jury instructions to find in favor of Plaintiff/Appellant based upon the evidence and the multiple loss scenarios/set of facts before it. The Jury was justifiably confused and therefore requesting documents from the Court, which the Court refused to provide (See ROA, Vol. 1, Jury Questions filed 7/18/13, #224, 225 & 226). In Plaintiff's view, the Defendant/Appellees were estopped 20from submitting multiple alternate theories of John W. Auld’s water damages claim as Plaintift/ Appellant’s claims as to water damages was a “supplemental claim” and AFI did not plead alternate facts/counter claims in their Answer nor is it listed in the parties pre-trial Order (See ROA Vol. 1, Pretrial Order, filed 5/24/13, #59). The only thing to be considered by the jury for this supplemental claim should have been a jury instruction along the lines of: is there coverage in the policy for water damages to Plaintiff’s personal property resulting from the defective/wear and tear bursting of the hot water hose attached to the washing machine in the basement (a stated covered insured peril claim for losses at that time in June of 2010, under paragraph 8. of policy)? (This section of the insurance policy IS available for payment of coverages under the policy in addition to the section of the:policy AFI claims it paid under, although it exceeded the policy limits in the sewer backup section of the policy so it must have paid under other sections (ie. sections other than the sewer back up endorsement section). The answer to the above ? is indeed ‘YES... (See ROA, Insurance Policy contract attached to Petition, Vol. 1, filed 6/11/12, #5- first sentence after paragraph 8. of policy on page 2 of 3 of insurance policy, as partially stated in paragraph 13., above). As this was a supplemental claim to a claim already submitted much earlier, the stated insured peril by the insured at the time (stated in the adjuster’s report and agent Joss report, as reported by Auld, Sr.), was not properly before this Court and the Jury to be redetermined as this would violate the prior factual statements and agreements of the parties. It would also infringe upon the Contract Clause of the U.S. Constitution found in Article 1, Section 10., providing No state shall pass any laws impairing the obligation of Contracts. In addition, rights under existing contracts are protected by the Due Process clauses of the 5! and 14" Amendment. 2a( ( ( ( ( 17, These AFI alternative theories presented- not originally pleaded by Defendant! Appellee’s- (alternate theories causing water damage losses on Supplemental Claim and Plaintiff does not own property that was stolen on Theft Claim) are or were waived and/or estopped from presentation to the jury as they were not stated or included in AFI Answer nor in pre-trial Order and if there was some question, should have been investigated prior to trial. Again, Evidence as to such matters is inadmissible. (See ULS.- General Insurance Co. of America v. Pathfinder Petroleum Co., C.C.A. Cal. 145 F.2d 368, certiorari denied 65 8. Ct. 679, 324 U.S, 844, 89 L.ED 1406, MO- Cox v. Owensville Mutual Ben. Aid Assn App., 185 8.W. 2d 28). The Defendant/A ppellce can not settle a claim and plead on one set of facts and defend on another. (See GA- Pennsylvania Casualty Co. v. Pund, 32 8.E.2d 925, 72 GA app. 49). 18. The trial outcome was also in error as a matter of law because: A) Plaintiff was an insured under the policy and a separate insured, as confirmed by the insurance policy and Jury; (See ROA Jury Verdict Vol, 1, filed 7/18/13, #227, Plaintiff is an insured under the policy); B) a water line break to a washing machine was a covered peril under the policy (See paragraph 13. Hereinabove and ROA, Vol. 1, Insurance Policy Exhibit to Petition filed 6/11/12, #5); and C) personal property is covered under the HOS policy for damages resulting from these aforementioned insured perils of defects in hot water hose to a washing machine and theft of property (See ROA, Vol. 1, Insurance policy Exhibit to Petition filed 6/11/12, #5). There was NO authenticated evidence presented that John W. Auld, St. DID NOT call in the original Claim as a defeotive break in the basement washing machine hot water hose, as testified to by Plaintiff The jury has no legislative authority to tortuously interfere with payment of this contract right and they did due to improperly drafted jy instructions. Defendant/Appellce was contractually and equitably or otherwise estopped from alleging multiple alternative causes of the water 22damages under the legal doctrine of acceptance and satisfaction, Coverage is provided under the policy for Plaintiff's supplemental personal property damages and other associated claims from this defective hot water line hose breakage occurrence and resultant loss of use/ supplemental living expenses and.mold/fungi claims under the policy endorsements, 19. For example, all of the pleadings in cases 11CV04594 & 11LA06470-consolidated listed as admitted evidence in the pre-trial order, would include the deposition of John W. Auld, Se. where he is questioned on this exact matter and he denies putting a strainer on the subject drain, Further this Plaintiff testified that he saw no strainer on the outside walkout basement floor drain when he arrived, but admitted he believed his father had someone do this while Plaintifi/Appellant was out of town working for extended periods of time, Plaintiff’ Appellant also testified he did see the broken washing machine water hose in a 5 gal bucket in the garage. There is NO evidence presented that John W. Auld, Sr., himself, put a strainer on the walkout basement drain. Further, his mobility issues requiring him to use a motorized scooter would have prevented him from accessing either the basement water line washing machine hose (12 steps down basement stairs) or the outside walk out basement drain (3 steps, plus 2 steps, plus 6 steps to get there), Defendant/Appellee cannot use this surprise tactic at trial claiming this act was actually done when there is no proper counterclaim in Defendant/Appellee’s pleadings and no proper jury instruction for the Jury to believe this set of facts and pay under the general liability/1,000,000 blanket endorsement coverages for Auld, Sr. negligence, per se. If John W. Auld, Sr. did have someone put a large strainer over the outside walk out basement floor drain and negligently failed to have it cleaned, thus causing water to flood the basement, then this would have been covered under the Liability section of the policy for negligence per se of the homeowner... and there was no jury instruction for this. Since there is no counter claim in the 23Defendant/Appellee’s pleadings to this effect, Plaintiff and his attorney could not gather all the evidence to prepare a defense to this Surprise claim raised at trial. The jury interrogatory/ instruction allowing the jury to question the various possible prospective causes of the insured peril misstated the scope of what the jury should be determining on this supplemental claim, Further, even if the disputed insured peril was listed as a counter claim in the Defendant/ Appellee’s Answer and/or the pre-trial Order (which itis not), the fraudulent concealment of evidence (adjuster’s report and agent’s loss/claim report) combined with improperlincorrect jury instructions, prevented the jury from reaching the proper factual conclusion. This resulted in a jury conclusion contrary to the stated facts, terms and conditions of the policy, evidence gathered at the time and restricted the jury from viewing ALL the prior evidence as a whole, What the jury concluded in these interrogatory response Jury instructions was contrary to the plain disclosures that would have been revealed in the adjusters report, agent loss/claim report, the Exhibit “A” attached hereto and the Nancy N. Auld Trusts, all discoverable and already in the records for the most part (other than concealed docs) in this case and 11CV04594. A proper AFT investigation would disclose this, buy was purposely botched to provide AFI excuses not to pay. 20. As to secondary considerations, the jury found incorrectly apparently that there had been no coverage even though Plaintiff was an insured under the policy, a finding that was not supported by the terms and conditions of the policy for the stated insured peril claims made by Plaintiff/Appellant, as an insured. If more were needed, these Defendant/Appellee’s arguments should have been precluded by the Court’s ruling on Plaintiffs’ attorney Motion in Limine as being solely meant to Surprise Plaintiff/A ppellant at trial and as being highly prejudicial and preventing a fair trial and proper due process. Finally, the actions of concealment/withholding of evidence uniquely in the hands of Defendant/Appellee violated Plaintiff's constitutional and civil 24rights regarding due process and a fair and impartial jury trial upon the merits. If Jurors unskilled in the interpretation of contracts and not knowledgeable as to contract/insurance law can determine that the insurance adjuster’s report is missing and Nancy N, Auld’s Trust document(s) are needed what is to be said of the skilled and trained attorneys and the Judge himself that conceal or withhold this information in their possession as agents of the court??? Because this Plaintiff's claim is a supplemental claim by an insured under the policy, it was also Court error to not submit a jury instruction that did not call inte question the accepted original cause of the claim and insured peril. ‘The instruction should have stated something more like: Auld, Sr.’s original claim was for water damages resulting from a defective or wear and tear break in the hot water hose going to the washing machine in the basement. Piaintiff has supplemental claims. Was there water, fungi and mold damage coverages for this insured’s personal property and his other supplemental claims in this HOS Gold Star Special Deluxe Elite policy given that the loss occurrence was caused by the claimed peril (washing machine hot water line hose defect) that is provided coverage under the policy in paragraph 8 on pages 2-3 of the policy? Clearly, the terms and conditions of the policy provide personal property and other coverages in amounts that are more than sufficient to cover all of Plaintiff's normal and customary water damages claims as stated in his Petition (See ROA, Vol. 1, Petition, filed 6/11/12, #5). It was also error NOT to submit a separate jury instruction on each claim so the Jury could decide each ‘one separately, ic. a separate one for theft, mold/fungis, personal property damages, clean up of water, additional living expenses, etc. How can the jury award damages for each various supplemental claims if there is no proper jury instruction allowing them so to do??? B. Theft Claims: 21. Similarly, with respect to the claims of theft of property, again, Plaintiff is an insured under the policy as determined by the Jury (See ROA, Vol. 1, Verdict Form, filed 7/18/13, #227), Itwas undisputed that a theft of the personal property listed occurred. By failing to 25,properly investigate the claims, this Defendant/Appellee committed fraud upon the Court by submitting last minute “Surprise” false testimony from Mr. Hammond that John W. Auld, Sr. owned the subject property that was taken (or at least “half” See Hammond Testimony transcript, attached hereto as Exhibit “B”) He made a list, and I would have to believe that under either one of two scenarios that he certainly did own et least half of the property In fact, you don't know -- you don't have any personal knowledge as to whether he owned any of that property, correct? You weren't there when he purchased it. You don’ weren't living in the household. You didn't know t know the ownership. You whose property was where, correct? That is true ‘When the actual truth of the matter is HE DID NOT: 10 " 12 13 14 15 16 17 18 19 20 a A I apologize for interrupting. And it's your testimony that you received everything of your mother's? No, my testimony is it was in her trust, not my father's trust, not my father personally And yet some of -- These items of dispute were in her trust. They do not -- they're not owned by my father. They were -- they were listed in your father's trust. He's just reaffirming what my mother already did. Thereafter, the jury’s “factual” findings relating to coverage, however, were fundamentally flawed and cannot legally be supported by the terms and conditions of the policy nor as a matter of law nor by all the evidence. Pursuant to Paragraph 5., “Insured a) Insured means you and, if residents of your household: (1) Your relatives;” (See ROA AFI policy attached to Petition filed 266/11/12, Vol. 1, #5). Pursuant to paragraph 5(c) on page 1 of the policy, Plaintiff was also the named Insured when his theft claims were stated in writing to Defendant/Appellees, in or around December of 2011. (Note 5(c) of policy reads in part: “If you die the person having proper temporary custody of covered property replaces you as named Insured.” Also in this paragraph note- “If you die, any person who is an insured continues to be an insured while residing on the Insured premises.”) Pursuant to paragraph 5(d) on page 1 of the policy, Plaintiff was “a separate Insured” and became the “named insured” when both the supplemental water damages claims and the theft claims were reported and the evidence filed with AFT, beginning in December of 2011, 22. Theft is a covered peril under this HOS Gold Star Special Deluxe Elite policy. Generally, insurance companies regard theft as someone taking an insured item that does not belong to him/her without permission, This broad definition is narrowed by the language of the policy, ifany. Plaintiff does not have to prove who took his personal property. A police report regarding the theft was filed by Plaintiff with the Leawood Police, as requested by the Defendant/Appellee claims department, The jury instruction on the theft claim was in error as it should not call into question ownership of the subject stolen property and the Court erred by allowing the Jury to believe ownership was up to them to determine when it was not, The pre- marital Agreement dated April 15, 2005, signed by both Nancy N, Auld and John W. Auld, Sr stated in paragraph 4, Personal Property: ... Each party shall retain as their sole and separate property any premarital personal property... and the last sentence states- “Notwithstanding anything else herein to the contrary, neither party shall interfere with the others gifts to the indivi ual children.” Further, paragraphs 10. Separate Use of Assets & 11, Instruments of ‘Transfer of said April 15, 2005, pre-marital Agreement, (See Exhibit “A” attached to July 1, 72013, pleading filed pro se-ROA Vol. 1, Motions- with Exhibits, #115) both require John W, Auld, Sr. to release any right, title or interest in ALL the property of Naney N. Auld, declaring her pre-marital property and his pre-marital property to be their individual sole and separate property. The claim from Defendant/Appellee and testimony from Mr. Hammond that the stolen property of Plaintiff's was owned by the John W. Auld, Sr. Trust or 50% owned by John W. ‘Auld, Sr. was a fraud upon this court and the jury. Mr. Hammond has tortuously interfered with the 5 children’s expectancy of inheritance by unlawfully transferring Nancy N. Auld Trust assets and allowing them to be dissipated in contravention of the terms and conditions of the Nancy N Auld 1995 &1997 Trusts and the April 15, 2005, pre-marital Agreement, He has also tampered with the 2007 trust documents by inserting 7 pages of single spaced text in an uninitialed double spaced document, mostly expanding the Trustee’s powers and for 2yrs. now has concealed the original 2007 electronic file of this trust document, even after Motions to Compel and ‘Subpoenas were served, evidencing his fraud. Resultantly, Plaintiff cannot possibly have received a fair trial as fraud vitiates everything, There may be 2 sides to the story but there is only one truth! 23, The Trust documents of Nancy N. Auld depict on their Exhibit’s that her trust(s) received ALL of her personal property in 1995 and even in 1997, There is no transfer of this personal property from either of these trusts to John W. Auld, Sr. or to the John W. Auld, Sr. 2007 Trust. This is true no matter which Trust this Court believes is valid or even if both are valid. ‘The 1995 1st Trust of Naney N. Auld is filed with Plaintiff's pro se motion before trial on July 1, 2013, as Exhibit “A” and the 1997 2nd Trust was presented to this Court, but erroneously apparently not admitted into evidence as the jury could not find it and requested a copy of it. Regardless, both trust have been admitted into evidence in case 11CV04594 & 11LA06470- 28C ¢ r consolidated as Exhibit “” and Exhibit “J” respectively (See copies of these Exhibits Attached hereto as Exhibit “F” and Exhibit “I” and please take judicial notice of the Exhibit “A” and/or Schedule of Property (last page) attached to these 2 trust documents which are filed as part of Intervenor Sun West Mortgage Company, Inc.’s Memorandum in Support of Motion for ‘Summary Judgment filed August 30, 2012, in case 11CV04594). Defendant/Appellees stipulated to the admission of pleadings from this case in the pre-trial Order. If more were needed: The trial Court violated mandatory statutory provisions of K.S.A. 23 201(a) which states: “The property, real and personal, which any person in this state may own at the time of the person’s marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to a person by descent, devise or bequest, and the rents, issues, profits or proceeds thereof, or by gift from any person except the person’s spouse, shall remain the person’s sole and separate property, notwithstanding the marriage, and not be subject to the disposal of the person's spouse or liable for the spouse’s debts." ‘Therefore, Defendant/Appellee’s have knowingly and with intent of fraud upon the court, abuse of legal process and malice engaged in fraudulent misrepresentation as to the true ownership of the subject stolen property all in violation of 2 Trusts, a pre-marital Agreement and state statutes! 24, Plaintiff requires a new trial or other judicial remedy at law so that he can amend his Petition to include these additional claims of fraudulent concealment, fraud upon the court, malice, abuse of legal process, obstruction of justice, outrageous conduct and the like, including exemplary damages to prevent insurance companies from like conduct in the future. The Nancy N. Auld Trust documents and pre-marital Agreement (all of record and easily investigated by AFI) both show clearly John W. Auld, Sr. had absolutely NO rights to the gifted property as it was the sole and separate pre-marital property of Nancy N, Auld and her trust(s), with the stolen 24K dishes coming to Nancy N. Auld from her mother Lilian Klausen and then being passed on 29U L to this Plaintiff? Appellant upon Nancy N. Auld’s passing in May of 2005. The signed typed list of John W. Auld, Sr., as it relates to property already given to Plaintiff (such as the 12 plates, mirror and oriental rugs) was merely a reaffirmation of the personal property of the Nancy N. Auld Trust that had already been given to Plaintiff, As this Court knows and prior insurance cases have stated,.."should an ambiguity exist with respect to coverage. construction will favor the insured.” Brown v. Combined Ins. Co. of America, 226 Kan, 223, 597 P.2d 1080 (1979); United Bank of Pueblo v. Hartford Ace. & Indem. Co., 329 F.2d 490, 494 (10th Cir.1976), ‘The Defendant/Appellee AFI should not benefit from it’s attorney's failure to properly investigate, concealment of evidence, unfair trial tactics, abuse of legal process and the like when there is a duty to disclose and his civil conspiracy to defraud the courts and the jury using Mr. Hammonds’s knowingly false testimony, all violate the terms and conditions of the aforementioned documents and KS state statutes. IL ERRORS IN JURY INSTRUCTIONS & UNFAIR TRIAL TACTICS & ADDITIONAL QUESTIONS & ARGUMENTS BEFORE THIS COURT: 25. Plaintifi/Appellant incorporates the above paragraphs 1-24 as if fully set forth herein, including points on defective jury instructions, including, but not limited to, no proper Jury instruction pointing to the proper paragraph of the policy for the water damages claims, such as: ‘Was there water, fungi and mold damage coverages for this insured’s personal property and his other supplemental claims in this HOS Gold Star Special Deluxe Elite policy, given that the loss occurrence was caused by the claimed peril (washing machine hot water line hose defect/breakage causing flooding) that is provided coverage under the policy in paragraph 8 on pages 2-3 of the policy. 26. If the Jury was to consider one of the alternate scenarios for water damages, i.e. Verdict Directing-Single Negligent Act causing the water and other damages to Plaintiff's personal property it should have read something like: Your verdict must be for Plaintiff if you believe: 30c First, John W. Auld, Sr. had someone put a strainer over the outside basement drain, failed to clean or maintain it, causing the drain to back up water and flood the basement, and c Second, John W. Auld, Sr. was thereby negligent, per se and Third, as a direct result of such negligence, Plaintiff sustained damage, c and said damages caused from negligence of the insured is covered under the liability section of the policy. The term "negligent" or "negligence" as used in this {these} instructions] means the failure to use that degree of care that an ordinarily careful person would use under the same or similar circumstances, ) (There is no such instruction that was submitted to this Jury.) 27. If the Jury was to consider a Verdict Directing-Damages-Penalty and Attomey's Fees-Breach of Contract-failure to investigate claims ~bad faith Refusal to Pay by Insurance Company, it should have read something like: ) policy, and if you believe that the Defendant/Appellee insurance company [refused to pay] [failed or refused to pay for a period of thirty days after demand] without reasonable cause or excuse or failed to properly investigate claims , then, in addition to any amount you may award on the insurance policy under Instruction No, _, you may award Plaintiff an additional amount as a penalty not including interest and ten percent of the remainder of such award and you may award Plaintiff a reasonable sum for attorney's fees. c C ( ( C ( ( ¢ « oO If you find in favor of Plaintiff on any of the claims made on the insurance ¢ C C C ¢ C ¢ (There is no such instruction that was submitted to this Jury.) C 28. If the Jury was to consider a Verdict Directing- Supplemental Damages-Personal and ) Property, it should have read something like: ‘If you find in favor of Plaintiff's Supplemental Claims being covered under any section of the Insurance policy, then you must award Plaintiff such sum as you believe will fairly and justly compensate Plaintiff for any damages you believe he sustained [and is reasonably certain to sustain in the future] as a direct, result of the water damages occurrence mentioned in the evidence. (There is no such instruction that was submitted to this Jury.) 3129, If the Jury was to consider a Verdict Directing- Supplemental Damages- Disputed Partial Settlement Personal and Property, it should have read something like: The following addendum must be added to the appropriate damage instruction when there is a disputed issue as to whether there has been a settlement payment, if the amount of the settlement payment is disputed: In determining the amount of this Plaintiffs damages you are not to consider any evidence of prior payment made [to] [on behalf of] Plaintiff. The judge will consider any such payment and adjust your award as required by law. If you believe Defendant/Appellee previously paid Plaintiff some amount on Plaintiff's claim, then you must find the amount which you believe Defendant/Appellee paid on Plaintifi’s claim previously, if any. (There is no such instruction that was submitted to this Jury.) 30. After finding that Plaintiff7Appellant was an insured under the policy, the jury was directed in Jury Instruction 11 to the wrong section of the policy. This was a supplemental claim as previously stated. The insured, Auld, Sr., submitted his claim as a bursting of a defective or worn out hot water hose to the washing machine in the basement, ‘The jury must be directed to paragraph 8 on pages 2-3 of the policy in addition to paragraph 14, This was error: ‘The plaintiff claims that he is insured under the poliey issued by Defendant pursuant to paragraphs: Definitions §. Insured a, (1) relative residing in the houschold; and S. Insured ¢,- If you die the person having proper temporary custody of covered property replaces you as named insured; and 5. Insured d- pertaining to separate insureds, Section Conditions - Section I paragraph 5 Severability - This insurance applies ws separately to each insured. This condition will not increase our limit for any occurrence, Plaintiff asserts that his damages are covered under PERILS INSURED AGAINST SECTION 1, Coverage B, paragraph 14 for the water damage, ( Plaintiff asserts that his damages are covered under PROPERTY COVERAGES - SECTION Coverage B_personal property. i 31. Defendant/Appellee was estopped and the Court errored in allowing matters not originally pleaded by Defendant/Appellee’s (alternate theories causing water damage losses on 32‘Supplemental Claim and knowingly perjured testimony that Plaintiff does not own property that was stolen on Theft Claim) to be considered by the Jury and thereafter error again in not providing proper Jury instructions to the Jury for said alternate theories. Were such matters waived and evidence as to such matters inadmissible as a matter of law? 32. Did the Court error or make mistakes in the presentation of proper jury instructions? 33. Did the Court error or make mistakes in not making any attempt to provide the Jurors with the documents they requested during deliberations? 34. Did the Court error or make mistake in not supplying documents in the Court’s possession (in the record such as Nancy N. Auld’s 1995 Trust and the April 15, 2005 pre-marital Agreement) or in the possession of agents of the Court (AFI’s insurance adjuster’s report/loss reports) when the Jurors” requested to view them? 35. Due to the “Surprise” and unjust trial tactics, is Plaintiff entitled to additional proceedings or a new trial or a corrected verdict or other relief? 36. Do to the misrepresentations of the law and facts to the jury, if not perjured statements and fraud upon the Court preventing a fair tral, is Plaintiff/Appellant due a new trial? (ie. Fraud vitiates everything) 37. Due to improper jury instructions, is Plaintiff entitled to additional proceedings or a new trial or entitled to bring the jury back to correct misstatements of fact and law? 38. Is Plaintiff entitled to judgment as a matter of law since he is an insured under the policy and the claims are covered claims not specifically excluded that AFI failed to properly investigate and pay? ‘One way to ensure a bad faith claim against your company is by ignoring expert advice. According to two presenters at the Combined Claims Conference held in Orange County, CA. 33According to Tony Falco, CR and CEO of Accurate Leak Locators and attorney John Edson of McKenna Long & Aldridge, whether an adjuster or an insurer listens to hired experts has a major impact on the resolution of a water loss claim, During the presentation, Edson said that bad faith is the “unreasonable withholding of policy benefits.” As already noted, an insurer owes a duty to its insured to investigate all of the possible bases of an insured's claim. The insurer's duty to give as much consideration to the insured's interests as it does to its own obligates it to investigate a claim thoroughly. An insurer must fully inquire into the bases for the claim; indeed, it “cannot reasonably and in good faith deny [benefits] to its insured without thoroughly investigating the foundation for its denial," (Egan v. Mutual of Omaha Ins. Co. supra, 24 Cal.3d at p. 819; italics added.) "An insurance company may not ignore evidence which supports coverage. If it does so, it acts unreasonably towards its insured and breaches the covenant of good faith and fair dealing." (Mariscal v. Old Republic Life Ins. Co. (1996) 42 Cal. App.4th 1617, 1624; see also Shade Foods, Inc. v. Jnnovative Products Sales & Marketing, inc, (2000) 78 Cal. App.4th 847, 882 [the record "suggests that [the insurer] looked the other way when confronted with facts revealing the possibility of first party coverage, resisting both reasonable interpretation of policy language and a compelling history of negotiation to secure this coverage"; Amadeo v. Principal Mut, Life Ins. Co. (9th Cir, 2002) 290 F.3d 1152, 1163 [even assuming the insurer's interpretation of its policy was not adopted in bad faith, its failure to investigate the facts surrounding the claim was evidence of bad faith}.) Edson cited the 2004 case of Jordan v. Allstate Insurance Company, and indicated that the insurer’s duty to investigate is not limited to what the insured tells an adjuster the problem is. In addition, if an adjuster or an insurer chooses to ignore expert recommendations, itis at the insurer's peril. As was made clear in Chateau Chamberay Homeowners Assn. y. Associated 34Internat. Ins. Co., supta, 90 Cal.App.4th 335, where an insurer denies coverage but a reasonable investigation would have disclosed facts showing the claim was covered, the insurer's failure to investigate breaches its implied covenant. The insurer cannot claim a “genuine dispute" regarding coverage in such cases because, by failing to investigate, it has deprived itself of the ability to make a fair evaluation of the claim, (Id., at pp. 348-349.) 39. Thus, in the Allstate case, although Allstate's interpretation of a policy exclusion was reasonable, it also had a duty to investigate Jordan's coverage claim that was based on the "additional coverage” provisions relating to an "entire collapse," which we held, in Jordan I, was also reasonable and consistent with Jordan's objectively reasonable expectations. According to Falco, a seasoned California-based contractor, a plumbing contractor working with an insurer on a claim will conduct the following tests on plumbing system to determine the source of a leak 1) Sound test on every fixture, 2) Pressure drop test. Test requires an operational shut off value 3) Running drain test, 4) Video inspection. 5) Static pressure test. 6) Visual inspection 7) Pool test, if applicable. 8) _ Imigation test, if applicable. 9) Compaction probe test. Falco also recommended that photos be taken whenever possible, in case a claim must be reexamined later. Edson said that ifa claim is found to have a second source for a water leak, not acting on it “is almost per se bad faith, per the Jordan decision.” If an adjuster ot insurer decides to ignore an expert’s recommendations, the claim file should be documented as to the reason(s) for doing so. “What you know at the time of the claim is the test for bad faith,” said Edson. 35If an adjuster encounters a contractor who refuses to warranty work, the panelists recommended the adjuster obtain a second opinion. Both speakers recommended that adjusters be proactive in working these types of claims and in locating experts that could stand behind their findings. Of course, it should be clear to any judge ready this with a quick review of the record, that NONE of this type investigation was done and AFI knew at the time of the claim that Auld, Sr. reported a ‘wear and tear defective break in the hot water hose to the washing machine in the basement. 40. Concerning the Surprise trial claim of Defendant/Appellee involving the allegation that Auld, Sr. had someone put a strainer on the outside walk-out basement floor drain and then negligently failed to clean it. Mostly, liability for accidents like this is handled through a part of the tort law-the law of negligence. Of course some accidents just happen, but many accidents are caused by unreasonable conduct, whether explicit action or by omission, that's negligence. The Courts often say liability insurance for accidents did not cover breach of contract but only torts like negligence. This is a mistake. A related mistake is one is legally obligated to pay damages only if the obligation to pay damages is imposed by law, as opposed to being imposed by agreement. Through final judgment the Defendant/Appellee becomes legally obligated to pay a sum as damages. The distinction previously relied upon was between liability imposed by agreement and liability imposed imposed by law. However, insurance agreements are to be interpreted as the reasonable lay person would understand them. Damages can be limited by contract, but that issue doesn’t usually arise in negligence cases and negligence cases allow Punitive damages for gross negligence, Breach of contract is not excluded from general liability contracts. AFI is liable for payment under it’s alternate theory alleging negligence for the water damages. There was NO proper jury instruction for this loss scenario/set of facts. 36IV. OTHER ARGUM) A. STANDARD OF APPELLATE REVIEW: 41. Pursuant to K.$.A, 60-2102(3) appeal as a matter of right is available, The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b) of K.S.A. 60- 250, and amendments thereto; or granting or denying a motion under subsection (b) of K.S.A. 60-252, and amendments thereto, to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259, and amendments thereto, to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259, and amendments thereto. K.S.A. 60- 2102(4) states “In any appeal or cross appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable.” The Kansas Appellate Courts review of a trial Court's rulings and conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan, 123, 129, 923 P2d 782 (1992). Based upon the above, Plaintiff submits that this Court's standard of appellate review for any and all issues herein is unlimited. B. WITHOUT LEGISLATIVE AUTHORITY, THE TRIAL COURT VIOLATED MANDATORY STATUTORY PROVISIONS AS STATED INK.S.A. 23 201(a); THE MOST RELEVANT JURY INSTRUCTIONS ARE OMITTED AND/OR IN ERROR AND ARE VOID, INVALID AND/OR VIOLATE NOT ONLY THE LAW, BUT THE PRIOR AGREEMENTS OF THE PARTIES- NANCY N. AULD TRUSTS, PRE-MARITAL AGREEMENT AND EVEN AULD, SR’S SET ASIDE OF THE SUBJECT PROPRERTY (HE DID NOT OWN) TO PLAINTIFF/APPELLANT: 42. The trial Court violated mandatory statutory provisions of K.S,A. 23-201(a) which states: 37“The property, real and personal, which any person in this state may own at the time of the person’s marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to a person by descent, devise or bequest, and the rents, issues, profits or proceeds thereof, or by gift from any person except the person’s spouse, shall remain the person’s sole and separate property, notwithstanding the marriage, and not be subject to the disposal of the person’s spouse or liable for the spouse’s debts." Axiomatic principles of statutory interpretation state that each statute is to be given a plain reading based upon the language. Martindale v. Robert T. Tenny, M_D., P.A., 250 Kan. 621, 632, 829 P.2d 561 (1992). Moreover, the mention or inclusion of one thing in a statute implies the exclusion of others. State v. Wood, 231 Kan. 699, 701, 647, P.2d 1327 (1982). Clearly, Mr. Hammond testifies he has no personal knowledge of the ownership of the subject property and relies solely on what Auld, Sr. tells him, yet he is absolutely certain the Auld, Sr. Trust owns the subject property. This is willful tortuous interference with Plaintiff's expectancy of inheritance and attempted conversion of Plaintift/ Appellants owned personal property given from his mother, Nancy N. Auld, Nancy N. Auld’s personal property, the subject property herein, was conveyed to Plaintiff/Appellant upon her demise in May of 2005, ‘The KS state statutes, her ‘Trusts and the pre-marital Agreement prevent Mr, Hammonds tortuous interference and criminal theft intent from coming to fruition. It is evident to this Plaintiff/Appellant that Mr. Hammond was engaged in a civil conspiracy with Auld, Jr. so to do. 43, Even if the legislature did not contemplate the occurrence which confronts a Court in construing a statute, that Court may not supply omissions or changes in a statute. This is true regardless of whether the omission resulted from inadvertence or because the case in question was never contemplated. 82 C.J.S. Statutes 328, p. 635 [citing Ballweg v. Farmers Ins. Co., 228 Kan, 506, 510-11, 618 P2d 1171 (1980)]. Attempts to limit or exclude mandatory statutory provisions are void and unenforceable. Brown v. USAA Cas. Ins, , Supra, 17 Kan, App.2d 38at 549-550. A void judgment is one that has merely the semblance of a judgment without some essential element or elements on which its validity as such depends (Kan-Board of Com'rs of Crawford County v, Radley, 8 P.24386, 134 Kan, 704). A judgment is void when granted in contravention of a mandatory statutory provision (Tex-Jn Interest of Baby Girl T. App.2 Dist, 671 8.W. 2d 654) or rendered by @ Court which acted in a manner inconsistent with due process (WS.-Andrean v, Secretary of US. Army, D-Kan., 840 F.Supp. 1414). It has been said that a judgment must be either valid or void as a whole and that a judgment cannot be bad in part and 00d in part, but wholly void if bad in part (Me-Consolidated Rendering Co, v. Martin, 145 A. 896, 128 Me, 96, 64 A.L.R, 790). A void judgment is not binding on anyone, it raises no lien or estoppel and it does not impair or affect the rights of anyone, it does not even operate as a discontinuance of the action and may be attacked at any time by anyone (Kan-Matter of Marriage of Welliver, 869 P.2d 653, 254 Kan. 801). A valid judgment may be entered subsequently in disregard of the voidable portion of the judgment (Wash-Morrison v. Berlin, 79 P. 1114, 37 Wash. 600), Where one reposes trust and confidence, as one would ina Court of Law, it is deemed fraudulent for one to misrepresent the law to another and where there was inequitable conduct on the part of the person who made the misrepresentation or where to apply it would be against public policy, an actionable misrepresentation (fraud) exists (Kan-Cramer v. Kansas City Rys. Co., 211 P.118, 112 Kan 298), Attempts to limit or exclude mandatory statutory provisions are void, unenforceable and contrary to public policy. Brown v. USAA C Ins. Co., Supra, 17 Kan. App.2d at 549-550; Clayton v. Alliance Mutual Casualty Co., 213 Kan, 84, 85, 515 p.2d 115 (1973); Barnett v. Crosby, 5 Kan, App.2d 98, 99, 612 P.2d 1250 (1980), Plaintifi/Appellant has cited herein that Mr. Hammond’s testimony contradicts the law in KS state statutes, 2 Nancy N, Auld Trust documents he was fully aware of (certainly by 39August 30, 2012, when Sun West includes them as Exhibits in their Memorandum in Support of Motion for Summary Judgment in case 11CV04594), a pre-marital Agreement and Auld, Sr.’s, Exhibit “A” herein reaffirmation of what Nancy N. Auld had already done, ic. given the stolen property to this Plaintiff/ Appellant. 44, Disciplinary Rules in DR-107 require Mr. Hammond and Mr, Waddell to reveal their collusion and deceit to the Court so that justice can be served. Being the unscrupulous attorneys that they clearly are, this has never been done, Complaints to the Disciplinary Administrator are of course treated with disdain and ignored. This is why in Johnson County it is well know that the person with the most money and biggest lie wins! Attorneys feel free to use fraud and deceit to obtain a favorable judgment. Judges and the Court system sit idly by and allow it by doing nothing to stop it or even investigate it. Although a judges job is not an easy one and I for one would not want it, itis a disservice to the public to allow this to go on and on for decades unchecked by citizen non-attorneys grand jurors who will not hesitate to investigate attorney wrong doings, disbar, prosecute or sanction or worse when appropriate. Attorneys policing attomeys is a joke and any honest judge reading this knows it. C. JUDGMENT SHOULD BE SET ASIDE, VACATED AND/OR ADDITIONAL PROCEEDINGS ORDERED DUE TO IMPROPER JURY INSTRUCTIONS, MATERIAL MISREPRESENTATIONS (FRAUD AND DECEIT USED TO OBTAIN A FAVORABLE JUDGMENT, SURPRISE TRIAL TACTICES AND FAILURES TO DISCLOSE JURY REQUESTED DOCUMENTS; SUBMITTED IN BAD FAITH: 45, Kansas law requites compensation to innocent persons injured by the tortuous conduct of others (such as a motorist). Horace Mann Insurance Co. v. Ammerman, 630 F. Supp. 114, 119 (D.Kan. 1986). Pattern of corrupt endeavors, ic. false representations and the ensuing egal constructive and actual fraud, in violation of 18 USC 1962 (a)(b)(e)(@), and DR 7-102 among other laws. Subsection (b)(6) of K.S.A. 60-260 gives the Court broad discretion to do 40equity and to correct manifest error. Overland Park Savings & Loan Ass'n v Braden, 6 K.A.2d 876, 879, 880, 636 P.2d 797 (1981). A motion to set aside a void judgment can be made at any time, Barkley v. Toland, 7 K.A.2d 625, 626, 628, 629, 646 P.2d 1124 (1982). The Jounal Entry of Judgment in 12CV4701, Court 7, should be set aside or vacated so that Plaintiff rights of trial on the merits and jury trial be preserved to correct the manifest errors in this case, to do justice and to do equity. Pursuant to 60-260(b)(6) a motion or independent action can be taken at any time to set aside a judgment for fraud, to correct manifest error, to do equity or for any other reason deemed prudent by the Court, Barkley v. Toland, 7 K.A.2d 625, 626, 628, 629, 646 P.2d 1124 (1982). Essentially, these Appellate and any further proceedings have been necessitated for just the legitimate reasons stated herein, to correct manifest error, to do justice and to do equity resulting from fraud and deceit and manifest errors and/or mistakes in preparing proper jury instructions in accordance with the facts, evidence, law and the AFI insurance contract. 46. The Defendant/Apellees, and their attorneys’ (including Mr. Hammond who ‘communicated with AFI during the claims process to get coverage denied), are engaged in a scheme to mislead the Courts and the Court system as to the true facts & evidence in this case. So far they are succeeding as they managed to confuse a jury so much, conceal requested documents and make inaccurate jury instructions such that the Jury was unable to make a proper decision. ‘The Court system is aiding and abetting their scheme with a failure of the Court to Order addition proceedings or retry certain aspects of the case, after proper investigation by AFI as to the true facts and evidence has been done, as suggested herein. In Toscano vs. Cir., 441 £2d, 930, 933, (1971). “When we concluded that the integrity of the judicial process has been harmed, however, and the fraud rises to ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decisions’, we not only can act but should.” England, 281 41f2d at 309; Levander vs. Prober, 180 f3d 1114, 1119, (9th Cir, 1999); Intermagnetics Am. Inc. vs, China Int'l Trust and Iny. Corp., 926 £24 912, 916-917, (9th Cir. 1991).” Petitioner! Appellant. Certainly, this Appellate Court cannot presume that the trial court found the facts necessary to support the judgment in light of the clear contradiction of Mr. Hammonds testimony to KS state statutes, 2 Nancy N. Auld Trusts, the April 15, 2005 pre-marital ‘Agreement & Auld, Sr.’s own reaffirmation! Clearly, Jury Instruction 11 is totally inadequate for the multiple loss scenarios presented to this jury and points them to the wrong section and paragraph of the insurance policy for coverage for this supplemental claim based upon Auld, Sr.’s original claims of a defective, wear and tear break in Hot water hose to the washing machine in the basement. See Nat'l Commerce Bank v. Stiehl, 866 S,W.2d 706, 707 (Tex. App. Houston {Ist Dist] 1993, no writ) (holding that trial court erred by failing to make additional, requested findings regarding appellees’ legal status under a promissory note and deed of trust). D. POST TRIAL MOTIONS: 47. Plaintiff/Appellant incorporates the paragraphs above and below as if fully set forth herein, Plaintiff filed post- trial Motions to seek redress of his grievances on exclusion of evidence, want of fair opportunity to produce evidence, newly discovered evidence, improper jury instructions and the like, pursuant to KS Statute 60-259: New trial; amendment of judgments reasons First through Sixth; and Statute 60-250, including, but not limited to (g) Production of evidence. In all cases where the ground of the motion is error in the exclusion of evidence, want of fair opportunity to produce evidence, or newly discovered evidence); and/or Judgment as a matter of law or any other applicable laws & legal precedents. The Court was made aware there was jury instruction errors as described herein, including the error in having the Jury re-determine (as to the Supplemental water damages claims) what the parties had 42already stipulated and agreed to in or around June of 2010, under the law of agency and contract. law. Where Plaintiff's recovery depends on agency & the agreements and representations of Defendant/Appellee’s agents and employees in settling this claim originally, that disputed fact must be submitted, not only by definition of agency but also by inclusion in Plaintiff's verdict director. Galemore Motor Co., Inc. v. State Farm Ins. Co, 513 8.W.2d 161(11) (MO 1972), 48. It is reversible error for jury instruction to assume or ignore controverted facts. Cline v. Friedman & Associates, Inc., 882 S.W. 2d 754(22) (MO.APP. 1994). Appellant, with respect to each cause of action, need only show that the evidence is insufficient to support one cause of action to prevail on its motion for a new trial. Royal Typewriter Co. v. Xerographic Supplies Corp., 719 F.2d 1092, 1099 (11th Cir. 1983) ("[UJnless [plaintiff] can support submission of cach theory of liability submitted to the jury, we must remand for a new trial."). Where two or more claims are submitted to the jury in a single interrogatory, a new trial may be required if either of the claims was erroneously submitted, as there is no way to be sure that the jury's verdict was not predicated solely on the invalid claim. Richards v. Michelin Tire Corp., 21 F.3d 1048, 1054-55 (11th Cir, 1994), Here there is no submittal of a covered claim under any of the provisions of the policy, but rather a directed verdict steering the jury to a specific section of the policy for payment that does not speak to coverage on the true insured peril submitted in insured’s claim and this Plaintiff's supplemental claim, as clearly covered under paragraph 8. of policy on page 2 of 3. By submitting the jury instructions the way they were submitted, the jury was estopped from coming to the conclusion that the supplemental claim is covered under the aforementioned paragraph 8, of policy on page 2 of 3. As this was a supplemental claim to Auld, Sr.’s original claims, the stated insured peril by the insured at the 43time (and no doubt stated in the adjuster’s report and agent loss report- concealed from all concerned), was not properly before this Court and jury to be re-determined other than to deliberate and decide that there was indeed coverage for a wear and tear defective breakage in the hot water line hose to the washing machine in the basement pursuant to paragraph 8, of AFT insurance policy on page 2 of 3. 49, There are no counter claims in Defendant/Appellee’s pleadings or pre-trial Order relating to AFI’s failed investigations and dispute as to ownership of the subject stolen property nor AFI's failed investigations and dispute as to the source of the water damages claims Pictures, drainage video tests, retrieval of the defective water hose, conversation with plumber and water system testing and other investigations at the time could have laid to rest any concerns about a sewer back up being an alternate cause of the water damages. Failed AFI claim investigations are not a legal basis to deny legitimate supplemental claims, There can be no fair and impartial jury trial when “Surprise” trial tactics are used along with AFI’s false claims owing to it’s own failed, inadequate investigations. All the truthful evidence and documents were available to AFI and it choose to ignore it to support it’s denial of payment of legitimate covered claims in “bad faith” and breach of good faith and fair dealings embodied in the contract of insurance. This combined with improper combining of the claims in one jury instruetion, improper recital of the proper contract provisions for the jury to consider for coverages and false testimony of Mr. Hammond all created a situation where it was impossible for the Jury to make a proper decision with what they were given. AFI was estopped from putting the Jury in this position and the Court erred in allowing it and in not presenting Jury Instructions segregated for each claim & loss scenario, with references to correet policy provisions showing coverage. The Jury should not be expected to decipher the insurance contract for applicable coverages to apply. 44CONCLUSIONS: ‘Any conveyance in contravention of the terms and conditions of a trust is VOID. K.S.A. 58-2405 & K.S.A. 58-1203(b). K.S.A. 58-2405 states: “every sale, conveyance, or other act ofa trustee in contravention of a trust shall be void” (See: Mark Twain Kansas City Bank v. Kroh Brothers Dev. Co., 250 Kan. 754, 764, 863 P.2d 355 (1992). K.S.A. 58-1203(b) states: “in the exercise of powers including the powers granted by this act, a trustee has a duty to act with due regard to the obligation of a fiduciary”. This fiduciary duty includes a “duty to the beneficiary to administer the trust solely in the interest of the beneficiary.” (See: Jn re Estate of Maxedon, 24 Kan, App. 2d 427, 434-35, 946 P.2d 104 (1997).”). Clearly, under the law, Nancy N. Auld had a 1995 1* Trust in which she conveyed all her personal property and even did so again in her 1997 Trust, although ownership remained in the 1995 Trust as the conveyance in 1997 was not properly done and is invalid, ‘The personal property conveyed was all of her personal property, which included the subject stolen personal property (See paragraph 21 above, Exhibits “F” & Trusts and transcripts attached). This Nancy N. Auld Trust did not give, sell or otherwise convey this personal property to John W. Auld, Sr. Mr. Hammond’s testimony that the Auld, Sr. Trust owns it or half of it is a total fabrication and legal fiction (a fraud) upon this Court and the Jury. Any conveyance alleged would be in contravention of her Trust(s) and VOID as not in the best interest of this beneficiary. There was no testimony to contradict this and Plaintifi Appellant so testified he received the property from his mother (See Transcript testimony attached, Exhibits “F” & “ testimony was therefore submitted in bad faith in violation of K.S.A. 60-256. ‘To support this judgment is to disregard the pre-trial requirement that the insurance ‘Trusts and paragraph 21 above). The company must properly investigate claims before denying payment. Documents were available 45,for Defendant/Appellee to conclude Plaintiff/ Appellant was the owner of the subject property. This issue should not have been raised at trial to confuse the Jury and was an intentional legal fraud upon the Court and this Jury. Ownership of the stolen personal property was not raised as being disputed in any of Defendant/Appellee’s pleadings or the pre-trial Order and is therefore also a “Surprise” tactic. Certainly, Hammond is not an heir and admits he has no personal knowledge as to ownership of the subject property (Paragraph 21 above). The property was stolen and no other family member or heir filed a claim requesting insurance coverage nor has any other family member or heir to the personal property alleged they own the subject property! ‘These acts of Mr, Hammond are part in parcel with Mr. Hammond’s and Auld, Jr.’s other tortuous and criminal acts to interfere with this Plaintiff's expectancies of inheritance in cases 11CV04594/14-11 1464 and 14CVO1395. Finally, the Court erred in combining the differing claims in one jury instruction, erred in citing the wrong section(s) of the policy for the supplemental water damages claims and not citing to the liability section for the alternate loss scenarios presented involving Auld, Sr. negligence, erred in not providing different jury instructions for the multiple loss scenarios presented for the water damages claimis, erred in allowing false testimony to be heard by the Jury as to ownership on the theft claims, erred in not providing the jurors with their requested documents, erred in allowing Mr. Hammond’s “Surprise” testimony, erred in not allowing this Plaintifi/Appellant’s pro se pleadings for a continuance of the trial and new legal counsel and any other or further reasons implied by the statements herein. WHEREFORE, Plaintiff respectfully prays for justice and that this Court reverse or overrule the trial Court(s) post trial rulings and reverse and remand this case for further jury proceedings, or a retrial, or make findings of fact and conclusions of law in favor of this 46Plaintiff Appellee, as a matter of trust and insurance contract law, since Plaintifi/Appellant is an insured under the policy and clearly the owner of the subject stolen property given to him by his mother (Auld, Sr.’s ownership alleged via Hammond is VOID by law, VOID and INVALID by the pre-marital Agreement and Nancy N. Auld Trusts and contradicts Auld, Sr.’s separate bequeath of the same property even if he did own it, which he did not) and clearly submitted a supplemental claim to the original claim of Auld, Sr. for additional damages from the defective ‘wear and tear breakage of the hot water line hose to the basement washing machine payable under paragraph 8., page 2 and for such other and further action as the honorable Court deems just and proper in the premises. Stuart N, Auld 9135 Manor Rd. Leawood, Ks 66206 913-888-2300 corpservine@yahoo.com a7Certificate of Service Plaintift/Appellant hereby certifies that five copies of Plaintiff/Appellant’s Brief of Appellant ‘was mailed or hand delivered this 15th day of September, 2014, to: Michael P, Waddell KS#13272 63001 James A. Reed Road Kansas City, Missouri 64133 (816) 353-8250/FAX (877) 292-1075 ATTORNEY FOR DEFENDANT/APPELLEE and on this 15th day of September, 2014, the original and 15 copies was hand delivered to the following for filing: Carol G. Green, Clerk Kansas Court of Appeals Kansas Judicial Center 301 S.W. 10th Ave. \KS 66612-1507 VI f Stuart N. Auld 9135 Manor Rd. Leawood, Ks 66206 a 913-888-2300 48JOHN WILLIAM AULD, SR. STATEMENT OF LIST OF ‘TANGIBLE PERSONAL PROPERTY . AND PERSONS TO RECEIVE PROPERTY I, JOHN WILLIAM AULD, SR, hereby direct that the following specitic jiems of * ‘tangible personal property (but not money, evidences of indebtedness, documents or title and the -properties used in a trade or business) be given to the following named persons, pursuant to ARTICLE FIRST of my Trust Agreement dated November 30, 2007 and as it may be amended at * any time or from time to time: ‘tems not listed are to be sold in an estate sale giving all childven and grandchildren presele ‘Viewing sud purchasing privileges at % the price. John William Auld, J. to receive: . 1, Large picture of cottage with flowers lovatad'in the dinning room. 2. Large light blue Oxiental rug located in he living room. 3. Blas down loveseat loceted inthe living room. 4. “Iohn Aula” ceramic mug loceted in the family room. 5. Ceramic duck located inthe family room. 6 Bombay chest and matching coffe isble, a peymant for handling my estate, located in the living room. 7, Setof Gilde oxystal glasses lovated in the living room. 8 Custodial duties forall remaining fuily pictures and slides to be made readily available to other family members for copies at their cost. Stuart Nichols Auld to reoeive: | 1. Light bine Oriental mig located in the dining room, | 2. TV Armour located in the front bedroom. 3, 2 matching Chinese oriental rps located inthe front bedroom and off the master bath. 4. Riding lawn mower. 5. Set of 12 place plates with roses loceledin te dining room, 6 8 3. ot ‘Large mior over the fre place with antiqued cream fame, 7, TV and the giass stand located in tic master bedroom. ‘Burgundy and metal swivel chair with ottoman located in the midale bedroom. ‘Misc, orisntal knick-Iacks located in the basement. 10, BBQ guill on the patio. aroaest 13: ‘Dated Noveniber 30, 2007 ‘AUL 0255cc eceer ° @ ‘Susan Nenetis Avid Powell to xeceive: 41. Small light blue Oriental rag located isthe front ball. 2 Small light bize Oriental ag located inthe Skinity room. +3. Electric bed located in the front bedroom. 4, Chair with Blue Beo upholstery located inthe living room, S, Small black and pink flowered rag in the middle bedroom. 6 Groen, pata set, of stemware by Fostoria in the pattern of Bevery”. 7. blue electric chit. 8. Square gold mirror with lovers, mom mado, looated in the front hall, 9. 2:matching tall slim china esbinets located in the dining room. 10. ranch Provincial bedroom sot octed in the nlster bedroom includes: King size head board ‘inthe attic, 2 night stands, dresser end lage matching mirror. ‘TL, 1 needle point footstool with a bougustof lowers ox it. 412. Black end white etching of two girls labeled “Christmas Eve” on the back locatéd inthe master bedroom. ‘Seth Hamilton Auld, Sr. to revei 1, 1 small Jight blue Oriontel ug located between the living zoom and dining room. 2. Hickok Chest located in the font hall, 3. ‘Large fiunily bible “Jaxboe Christmas 1875” located in the living room. 4, Large Phosnix mirror located in te fail room, ‘5S. Large chalic drawing of an old man fishiog located in the living zoom, 6. Square:ed painted mirror, mom made, sted at the bottom of the staizs. 17. Large bine needlepoint pillow with pansies, mom mado, locéted in the living room. 8 Large solid brass chandelier Iocated inthe dining toom, = 9, His plaid couch, on loan from him, located in the family room. ‘Nanoy Amna Auld Diebott to receive: 1. Dark, arate, Victorian dining room sot which inchudes table with 3 leaves, 5 side chair, 1 aim chair, buffet, table pad, and china cupboerd located in he dining room. 2. 2 matching side tables with single draver and shelf, on lomn Stem her, looatnd in fe Living room, 3, 22 Woodsman Pistol in case located in the front bedroom, 4, 5 lenge Haviland serving plators/dishes, on loan from her, located it the dining room. 5. L needle point foot stool with flowers ani accms located in the dining room. 6. large misror above the busfet located in the dining room. 7. “Jarbog” Sterling Silver bow! located in the living room. 8. J oriental rg fen ee voice Gaal), | WILLIAM AULD, SR. Page 2 0f2 Dated: November 30, 2007 cer edbenwoe-t + AUL 0256COOP RRRAR A ARRAS hen en oa 10 1 12 13 44 15 16 7 18 19 20 24 22 23 24 25 STUART N.. AULD, ve AMERICAN FAMILY MUTUAL, INSURANCE COMPANY, et al., IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS CIVIL COURT DEPARTMENT Plaintiff, Case No. 12CV04701 Division No. 7 K.S.A. Chapter 60 Defendants. TRANSCRIPT OF HEARING HAD ON PLAINTIFF'S POST-TRIAL MOTIONS. PROCEEDINGS had before the Honorable David W. Hauber, District Judge of the Tenth Judicial District of the State of Kansas, on the 28th day of January, 2014, in the Johnson County Courthouse, 100 N. Kansas Ave., Olathe, Kansas 66061. APPEARANCES: The Plaintiff, Stuart N. Auld, appeared in person pro se. The Defendant, American Family Mutual Insurance Company, appeared by and through its counsel, Michael P, Waddell, 63001 James A. Reed Road, Kansas City, Missouri 64133. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863 eben 13"!on en Seana 12 13 14 15 16 17 18 19 20 24 22 23 24 25 TUESDAY, JANUARY 28, 2014, 9:35 A.M. PROCEEDINGS (The following proceedings were had before the Court with all parties present.) THE COURT: You may be seated. A11 right. The Court calls Auld vs. American Family, 12CV4701, and I'l] ask the parties to enter their appearances. MR. AULD: Stuart Auld representing myself. MR. WADDELL: Mike Wadde11 representing the defendant, American Family Mutual Insurance Company, Your Honor. THE COURT: All right. I see we have the -- we have the journal entry of judgment following jury trial that was entered August 16th of last year. The plaintiff filed a motion for summary judgment notwithstanding the verdict or judgment as a matter of law and/or motion to alter or amend judgment, that was filed August 27th. It looks like no hearing date was scheduled at that time, so we have -- had a delay. And then we had a memorandum in opposition filed on September 9th. Finally, the motion was scheduled for hearing, it looks like, KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863December 3rd, and so here we are today. And I think plaintiff has now filed a supplemental motion to compel and motion to reopen discovery. Is that pretty much the sum of what's outstanding right now? MR. AULD: Yes, sir. THE COURT: Mr. Auld, you may take the lectern and go ahead and make your argument. MR. AULD: Thank you, sir. Judge, if it please the Court, I'd ask that the Court closely and carefully consider my affidavit and my pleadings and the exhibits before it makes its decisions or any findings on this matter. And, additionally, Judge, I've made some notes for this hearing today, and to save time, rather than read them verbatim, if it's okay, .I could distribute the notes to have them put in the record in case I should miss something. Would that be acceptable? THE COURT: Well, I think these are your notes for your argument. MR. AULD: I can read them verbatim. 1 was trying to save time in case I missed something but THE COURT: Well, go ahead and just -- if KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-38634 ~ you want to give those to counsel, I don't care. NR. AULD: If he doesn't have any objection, I could approach and give you -- THE COURT: I'd just as soon have you give me your argument. If you want to just hand me your notes and then dispense with your argument, I can do that. MR. AULD; That'd be fine. THE COURT: Okay. NR. AULD: I just didn't know if I might miss something. THE COURT: TI understand. NR. AULD: Judge, the legal system can't operate properly, you know, when the evidence and relevant testimony is concealed. And what I mean by that, and the jury asked for it, the adjuster's report, the insurance agent's claim report; none of that was presented, Judge, Additionally, in my opinion, the false and misleading testimony submitted, you know, clearly, John W. Auld did not legally own the subject stolen property as evidenced by my mother's trust testimony, and there's been no testimony other than Mr, Hammond's hearsay testimony to contradict that. And, clearly, her premarital agreement KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863prevented John, Sr., from claiming any of her bequeaths or distributions to the children, including those to me. The surprise tactics with his last-minute testimony, I think provided -- or additionally added to the prospect of an unfair trial, Judge. And it was a surprise tactic on my attorney because she did not know what his testimony was going to be, nor did I. THE COURT: You're referring to Mr. Hammond? MR. AULD: Yes, sir. THE COURT: Okay. MR. AULD: And in my opinion the jury instructions for the differing issues that were brought before the Court did not present to the jury the opportunity to even render a decision, because under one set of facts, the strainer caused it; and under another set of facts -- you know, my original claim was my father submitted this as a broken waterline hose to the washer, and that would be paid under Paragraph 8, and there was no provision, should the jury find in that way, for them to do so. And on the alternative, if they should believe Mr. Waddell's last-minute suggestion from an KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863( ( © er onnon 10 4 12 13 14 15 16 17 18 19 20 24 22 23 24 25 older pleading of mine, that somehow this strainer caused or contributed to the flooding, you know, there was no provision prevented for them if they believed that to find in that manner. And so because of the unfair trial tactics and the mistakes and the errors or, in my opinion, perhaps, even delivered fraud upon the Court, the decision does not conform to the facts and the evidence and the -- more importantly, the contractual provisions of the policy, because they did find I was an insured, and, therefore, I have specific contract rights under that policy. And so for some of those reasons, Judge, I think the decision is not correct and the Court needs to either modify it or we need to have a trial on -- well, let me read this last paragraph. The verdict was mostly in favor of plaintiff as the jury found I was an insured. Because of the unfair trial tactics mentioned, I need a new trial on the damages. This is on the grounds that if I'm an insured, as the jury says, then the damages award are not pursuant to and in accordance with the insurance contract and are, therefore, inadequate. And, you know, moving on, Judge, real quickly, and I apologize for this dragging on a KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863little bit, but in my opinion, there was a flagrant disregard for the duties of the agent of the Court in obtaining a fair trial. The judgment cannot be good in part and bad in part. I'm confident this Court will be, perhaps, chastised at the appellate level if the policy and the law is not rendered or new trial granted, because it's the duty of the Court to insure that people are not injured by over-enthusiastic and unscrupulous counsel. American Family never once, during the claims process or pretrial order, raised the claim that John W. Auld, Sr., owned the property and that -- owned the property that was the subject matter of the claim. And in my opinion they waived their right and they're equitably estopped to allege this at trial because this was the supplemental claim, at least to the water damage. And, similarly, I think during the claims process -- or the pretrial order, they didn't present evidence of what John Auld, Sr., actually claimed on the insurance policy, which was the broken water hose and -- on the hot water of the washing machine. And resultantly, I think they've waived their right and are estopped from alleging all these multiple claims at trial. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863But even if we allow those claims to try and get at the truth and even if the, you know, strainer somehow contributed to the flooding, that would be covered under negligence per se under the liability section of the policy, and there's no jury instruction for that. So in closing, Judge, again, I ask you to issue your findings and facts, conclusions of law for your decision in reversing these jury findings, at least partially, on what must be paid to the insured under this contract. And then stated under recorded coverage and causes of damage, the waterline break of the washing machine hose and, possibly, negligence in having a strainer placed over the drain, or just John W. Auld's original claim of the washing machine hose break for the supplemental water damages and mold claims, as well as reversing the personal property taken on the theft claim, because, clearly, Nancy N. Auld's trust and the premarital agreement evidence were made known to this Court and, more importantly, the defendant by my pro se pretrial pleadings of which copies of those documents were submitted and filed with the Court, and this was an offer of proof. And these documents were honestly KELLEY M, PFANNENSTIEL, CSR, RPR (913) 715-3863hen Seearxnoan 12 13 14 15 16 17 18 19 20 2 22 23 24 25 concealed from the jury even after they requested them. So I think this combined with the inaccurate jury instructions prevented the jury from even having a possibility of coming to the right conclusion. Thank you, Your Honor. THE COURT: All right, Mr. Auld. Mr. Waddell. MR. WADDELL: Your Honor, this was a jury trial, and while the Court has obligations and counsel have obligations, plaintiffs have obligations, and that is to present evidence to a jury. In this case one of the main things that plaintiff claims is that the jury was denied the benefit of a claims file or report and notice of loss. That's not our burden to produce, Judge. The plaintiff has the burden of conducting discovery. Mr. Auld certainly knew how to conduct discovery because his petition showed -- or included what he deemed to request for admissions, which is valid discovery. Additionally, he responded to interrogatories and requests for production of documents. He engaged a lawyer to represent him KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863aan w Seen 12 13 44 15 16 17 18 19 20 24 22 23 24 25 10 during his deposition. So he had the ability to obtain whatever documents he now claims were concealed from the Court, and the law requires that he exercise reasonable diligence in obtaining that evidence and. that information and that document; he plain and simply failed to do so. So as such, any claimed evidence that the jury didn't get wasn't our fault. Additionally, these documents that Nr. Auld has now submitted, yet again, to the Court he failed to present to the jury. He failed to request that those documents be presented into evidence for the jury to consider. That's not my fault, that's not American Family's fault; that's his fault and his attorney's fault. And to claim that this evidence was prevented or concealed or withheld from the Court is nobody's fault but his own. He had the ability to request that the jury review that evidence, that that evidence be admitted for the jury to consider, and he failed to do so. And we can't and won't take the blame for his errors and omissions Additionally, Judge, he makes various claims about the jury instructions forgetting again KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863CeY ean en 10 4 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 that his counsel prepared and submitted jury instructions. His counsel agreed on jury instructions. His counsel, along with Mr. Auld, prepared jury instructions, specifically, the verdict form, And, Judge, to claim now, without ever objecting to any jury instructions, that the jury instructions were somehow flawed is disingenuous at best. Judge, in this case the jury heard evidence. They heard evidence that Mr. Auld testified about a water -- a broken water hose. They also heard evidence from Mr. Auld himself, in his previously sworn and filed affidavits, that the water damage didn't have anything to do with a water hose but rather with a torrential rainstorm and a clogged strainer. Judge, the plaintiff has the burden in an insurance contract case to not only establish that he is insured, but that the damages and the events giving rise to those damages are covered under the policy. The jury instructions that were presented accurately did that. He claimed under a specific clause and provision under the policy that his damages were covered; he presented evidence to that. Other KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863Row Scere 12 13 14 15 16 17 18 19 20 24 22 23 24 25 12 contrary evidence was permitted as well and considered by the jury and determined, ultimately, that Mr. Auld failed to meet his burden that his damages came within the contract, both on the water damage and on the theft claim. Judge, the jury instructions were accurate, they conformed with the law, and, more importantly, no other alternative was ever presented. The only other jury instruction presented that was not considered by the jury was rightfully excluded by the Court, because under the law there is no private cause of action for an individual under the Unfair Claims Practices Act in Kansas. Plain and simply, Judge, plaintiff has a basic lack of understanding of his own burdens, his own responsibilities, his own obligations to be awarded a judgment in this case, and his failure is not our fault, nor the Court's. He received a two-day trial, which he presented the evidence he chose to present and made the argument he chose to present, and now he's not in a position to question the jury's deliberations and conclusions, I have nothing further, Your Honor. THE COURT: All right. A last word, KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863eN oanren 10 1 12 13 14 15 16 17 18 19 20 24 22 23 24 25 13 Nr. Auld? MR. AULD: Yes, sir. Judge, Mr. Waddell misstates my having anything to do with the jury instructions. I did not prepare them. I did not see them. I walked over with him and my attorney; but they worked on the jury instructions, I sat in a chair. So I had nothing to do with those jury instructions. It's a very convenient argument for Nr. Waddell to state that, you know, we had the opportunity to bring this evidence before the Court. He listed as witnesses the insurance agent. We presumed the insurance agent would be here for us to cross-examine him and discuss the claim. The agent never showed, never was questioned. The same thing too goes for the adjuster; he had him listed as a witness, we presumed he would be here, that we could cross-examine, but he did not show, The information was concealed; whether it was deliberate or accidentally, you know, I cannot say for a fact, but we all know the jury asked for it, and we all know that it wasn't given. And for whatever reason that happened, it prevented a fair outcome. Finally, Your Honor, I think you have to KELLEY M, PFANNENSTIEL, CSR, RPR (913) 715-3863c C eo re ers 10 11 12 13 44 15 16 17 18 19 20 21 22 23 24 25 14 go to what the gist of the jury's deliberations were to get at the root cause of this. Yes, they concluded I was an insured, but for some reason, either the jury instructions misdirected them to the wrong part or they believed the facts didn't coincide with the part of the policy they were directed to or something prevented them from ruling in accordance with that insurance policy. And I don't believe it was my testimony. I think the facts are pretty clear here. And I think the jury saw through better things than even some of us did, but -- because they certainly started asking for the right documents. You know, they were certainly going the right direction to figure out what the truth was. But somehow they got misdirected, Judge, and I don't know what the exact cause was, but I believe that Mr. Waddell contributed to that and prevented the Court from performing its normal function because of the withheld, concealed, whatever you want to call it, not-presented evidence of the claim and the other reasons that I've listed here in my written statement. Without belaboring the point, I ask the Court to review my pleadings and affidavit and the KELLEY M, PFANNENSTIEL, CSR, RPR (913) 715-386315 jury instructions to see if what I say is correct and give us some findings -- or a decision on those matters, Thank you, Judge. THE COURT: Okay. Because there are a number of post-trial motions, the Court will review those and issue a written opinion with regard to the claims of the parties. I will get that out fairly promptly because, frankly, this case has been sitting here for some time. The only reason we are hearing it now is because, I think, after the trial, Ms. Uvodich withdrew, and our requirements are that counsel typically contact the Court to get a date for hearing. After realizing this had been sitting here for some time, I think we contacted the parties to make sure we'd get this, sort of, settled. Mr. Auld, when I issue a written opinion, for purposes of service, your address under -- it looks like your last motion, is 9135 Manor Road, Leawood, Kansas 66206? NR. AULD: Correct. THE COURT: And you also have an email address of CORPSERVINC@YAHOO.cOM? MR. AULD: Correct, Judge. THE COURT: So we'll mail it to you and we will also serve it by email as well, and that way KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386316 you'll both get it. MR. AULD: Thank you, Judge. MR. WADDELL: Your Honor, I did not respond to the supplemental motion. I believe that it contained much of the arguments and information already presented. THE COURT: I understand. MR. WADDELL: If you would need a response, I'd be happy to provide one, but I think my memorandum in opposition adequately deals with both of the motions, the motion and the supplemental motions. THE COURT: All right. Well, with that the Court will get its opinion out. I'11 try to get it out within the next couple weeks so you're not both lingering on this anymore. And with that we'll be in recess. MR. AULD: Thank you. MR, WADDELL: Thank you, Your Honor. (The hearing concluded at 9:55 a.m.) KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386317 STATE OF KANSAS ) ) COUNTY OF JOHNSON ) KELLEY M. PFANNENSTIEL, a Certified ss: I, Shorthand Reporter, and the regularly appointed, qualified, and acting official reporter of the Tenth Judicial District of the State of Kansas, do hereby certify that I reported in machine shorthand the above and foregoing proceedings heard on January 28, 2014, before the Honorable David W. Hauber, District Judge of said court; That, thereafter, I personally prepared the foregoing transcript, by means of computer-aided transcription, and that said transcript is a true and correct transcription of my shorthand notes, all to the best of my knowledge and ability. SIGNED, OFFICIALLY SEALED, AND FILED WITH THE CLERK OF THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS ts/ Kell Pfannen KELLEY M. PFANNENSTIEL, CSI Official Court Reporter, N (913) 715-3863 1299 KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863STUART N. AULD, ve AMERICAN FAMILY MUTUAL INSURANCE COMPANY, et al., IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS CIVIL COURT DEPARTNENT Plaintiff, Case No. 12CV04701 Division No. 7 K.S.A. Chapter 60 Defendants. PARTIAL TRANSCRIPT OF JURY TRIAL PROCEEDINGS HAD ON 7/16/13 PROCEEDINGS had before the Honorable David W. Hauber, District Judge of the Tenth Judicial District of the State of Kansas, on the 16th day of July, 2013, in the Johnson County Courthouse, 100 N, Kansas Ave., Olathe, Kansas 66061. This partial transcript is the testimony of Charles Hammond and the rebuttal testimony of Stuart N. Auld. APPEARANCES : The Plaintiff, Stuart N. Auld, appeared in person and with his counsel, Jean Ann Uvodich, 214 S. Chestnut, Suite 5, Olathe, Kansas 66061. The Defendant, American Family Mutual Insurance Company, appeared by and through its counsel, Michael P. Waddell, 63001 James A, Reed Road, Kansas City, Missouri 64133, KELLEY M, PFANNENSTIEL, CSR, RPR (913) 715-3863TUESDAY, JULY 16, 2013 PROCEEDINGS (The following proceedings were had before the Court and jury with all parties present.) (Proceedings already in progress.) MR. WADDELL: Your Honor, at this time I would call Charles Hammond. CHARLES HAMMOND, called as a witness on behalf of the defendant, having been first duly sworn to state the truth, was examined and testified as follows: DIRECT EXAMINATION BY MR. WADDELL: Would you, please, state your name for the record. Yes, my name is Charles Hammond. It's spelled H-a-m-m-o-n-d. What's your occupation, Mr. Hammond? I'm a lawyer And you're appearing today pursuant to a subpoena I issued to you, correct? That is correct. Tell the jury a little bit about your educational background and training. I attended the University of Kansas, undergraduate KELLEY M, PFANNENSTIEL, CSR, RPR (913) 715-3863degree in business administration; also went to KU Law School, I graduated a long time ago, in 1966; had an intervening time period in the Air Force from 1967 through late '71 at the request of the United States Government; and then I've also got a masters in taxation at the UNKC, University of Missouri Kansas City; and I taught a class in deferred compensation at UMKC in the tax program that they have there as an adjunct professor Thank you. Do you have any area of the law that you specialize? Principally tax, but that takes us into a lot of different areas, such as estate planning and even some corporate-type work; but the principal thing that we do is estate planning, wills, and trusts and things of that nature. And for how many years has your practice focused principally on estate planning and wills and trusts? More than I can recall right now. Actually, I got out of the Air Force in ‘71 and ever since that time it's been principally in the estate planning and trust and -- type work. Are you familiar with the Auld family? Very. Tell me what members of the Auld family you have had KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863oo eo oe cs 10 1 12 13 14 15 16 47 18 49 20 24 22 23 24 25 occasion to represent or perform legal work for. Okay. As far as representation is concerned, we've done some work for Lillian Klausen, and that is the mother of Nancy Nichols Auld; we've done some work for Nancy Nichols Auld; and then for John Auld, Sr.; and now for John Auld, Jr., who is the trustee of the John Auld Trust. What legal work did you perform for Nancy Auld? I believe we did a will for her and maybe we'd done some other ancillary documents like powers of attorney and things of that nature. I don't exactly recall because I don't have that file with me now but I appreciate that. And was that will probated? No, we checked our records. And as a matter of fact, I even checked downstairs just to be certain that I was correct on that, and there was -- it was never admitted to probate and never filed of record either. And what's the effect of a document that's never filed in probate? If it's never filed of record or for probate, either one, within six months after the date of death, it becomes void. It's @ useless document. Okay. Are you aware of any other wills or any KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863trusts that Nancy Auld was involved in? Am I aware of any other trusts that she was involved in? Yes. Well, yes, there's an allegation of a 1995 trust that she was involved in. And what's your understanding of that? Well, my understanding of that 1995 trust, that it was subject to some controversy, and the controversy was from her own affidavit, that it had been -- MS. UVODICH: Your Honor, I'm going to object to this witness testifying as to an affidavit of someone who's not present. THE COURT: On the basis of hearsay? NS. UVODICH: Yes, Your Honor. THE COURT: Well, that's sustained, unless it explains what the witness may have done next or may explain some subsequent action. I don't know what the line of questioning is. MR. WADDELL: TI will make it a little clearer, Your Honor. (By Mr. Waddell) Based on that affidavit that you were aware of, did it affect how you handled her estate and estate planning? Well, I wasn't aware of the affidavit at the time KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863Core anen 1 12 13 44 15 16 17 18 19 20 24 22 23 24 25 that we did the estate planning. She made - MS. UVODICH: Therefore, Your Honor, I would object to any testimony related to the affidavit concerned THE COURT: Well, I don't think we've heard any testimony about the affidavit. You know where the line is, don't you Mr. Hammond, on hearsay? THE WITNESS: Yes. THE COURT: Basically, the focus of my ruling and my guidance to you is that you are to proceed to explain what you did and why you did it without getting into the allegations or statements within the affidavit. Okay? Understood? THE WITNESS: Yes. Yes, Your Honor Thank you. THE COURT: All right. Go ahead (By Mr. Waddell) So -- and, specifically, to refresh your recollection, I'm making reference -- THE COURT: Let me explain to the jury the concept of affidavit so they understand why these rulings exist. An affidavit is simply something that is sworn to be under oath or under penalty of perjury but -- and it can be used for various things, court proceedings, persons here, you KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863oan en Seen 12 13 14 15 16 47 18 19 20 24 22 23 24 25 know, you can sort of challenge them or ask them about it. But if the person is not here to be cross-examined, because the law does not allow the other person to cross-examine the person and be able to sort of get the background circumstances of it, it's just deemed to be something that is not properly submitted to you. Okay? So if somebody's dead, obviously, they can't be cross-examined. So any instrument, short of a probate instrument that is accepted in probate court, that's kind of an exception, is not subject to cross-examination, so we keep that stuff out from consideration, because it's just not fair to the other side. By the same token, sometimes people have hearsay, whether it's an affidavit or some other instrument, and it causes them to react to do something later. So you don't look at the statement itself to determine whether it's true or not, you just say oh, okay, that explains why he did something next. Okay? That's kind of where we are right now. All right. Go ahead. MR. WADDELL: Thank you, Your Honor. (By Mr. Waddell) I want to refer you to Exhibit 201. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863ere PP > Yes, I have Exhibit 201 in front of me, That's the affidavit of Nancy Nichols Auld. And how did that affidavit -- and, additionally, 1 want to make reference to Exhibit 200, which is the Nancy Auld Revocable Trust dated August 8, 1997. I have that as well. Okay. And did you take those documents into account in your estate planning for both Nancy Auld and John Auld, Sr.? I don't believe that I did. Okay. And did you prepare a trust for John Auld? I did. I believe that's Exhibit 1 -- or 202. Yes, I have that. Okay. And tell me the circumstances of your preparing that document, Well, he just wanted to get his estate plan in order, and I was retained for that purpose. Okay. And can you describe for the jury what the purpose of a trust is or the purpose of a will? Yes, I'd be glad to. Basically, I think as has been so largely misunderstood is that there's -- is, basically, a title-transferring process. Because if you go through probate, that's what the probate court will do; it will transfer the title to someone KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863OO) oe oe cn en 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 else. And what we do with regard to a trust is we go ahead and prepare a document now and transfer our assets into it now, you know, so that -- or currently, I should say, so that there are no assets that will be subject to probate administration. So that was the purpose of what we've done here. Okay. And I want to refer you to Exhibit No. 1, specifically, Subsection D, which is one, two, three, four, five different items that the plaintiff has made a claim of ownership and loss for this lawsuit. Do you see that? I do. I have Exhibit No. 1; yes, I have that. Okay. And do you recognize those items? If you'd give me a moment then. (Looking.) THE COURT: Which items are you referring to again? MR. WADDELL: In Subsection D -- THE COURT: Okay. When you say "D" -- okay. Subsection D, which is labeled “Plaintiff's theft loss, 2011," I recognize some of those items, (By Mr. Waddell) And as part of the trust provision, was there an acknowledgment of individual items that various -- of Nancy and, ultimately, John Auld's children would receive? KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386310 That is correct. Okay. And how was that dealt with in the trust? What we did was we prepared, first of all, pursuant to Kansas law, and there's a Supreme Court case to this effect back in 1997 that says if you've ever declared your assets are in the trust, that is sufficient, and that's the Talley 0'Farro case. And so we did a declaration of trust ownership, and it's kind of a blanket document that doesn't specify any particular asset, but it says “all my assets in general should be regarded as trust assets," The second document that we also prepared, and this is fairly routine, it's called an assignment of tangible personal property. So we did that as well. And we identified assets that are being transferred into the trust, so that, once again, we know what assets are there. And that's the second one. We also, in conjunction with both the declaration of trust ownership and the assignment, you also should have an acceptance by the trustee of those items to be common in trust asset, which we did in both cases, both on the assignment and the declaration of trust ownership. And when this trust was created, were those KELLEY M, PFANNENSTIEL, CSR, RPR (913) 715-38631 documents then -- or were those items of personal property then brought into the trust? Yes, they were, Okay. Did that just include John W. Auld's possessions or any -- or were Nancy Auld's legacy included in that as well? It would have been all of the assets that John W. Auld, Sr., owned, you know, at that time. Did he own anything of Nancy Auld under the terms of either the will or a trust or -- Well, under any circumstance, he would have owned a portion of what Nancy Nichols Auld had, because if she had, and that's, again, speculation, on my part -- NS. UVODICH: Your Honor, I object to this testimony. THE COURT: And that's sustained. (By Hr. Waddell) In this case, Mr. Auld is asking for specific items that he claims were outside of this trust. Were the items that you saw in Exhibit 1 items that would be included in the 2007 trust that you created? To answer your question, I would need to compare the itemization that appears in the assignment with those assets that you've identified in subpart "B." KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386312 And so if you would give a moment, I will do that to see if there's any correlation. I would love that. And when you asked me if I had seen any of those there were some of those assets I had seen only when I had visited the house. Okay Now, with regard to the assignment, you know, I have that in a file folder in my briefcase, but I'm going to object to releasing that because that's private and confidential information as to who gets what from the trust. Okay. What I want to know is, what was included in the trust? Okay. Then I would -- THE COURT: Let me clarify something. We have in -- identified Exhibit 202, which is the John William Auld, Sr., Revocable Trust Agreement, and then there's a statement of list of tangible personal property and persons to receive property schedules. Now, is this assignment something different from that. THE WITNESS: No, that assignment should reflect those assets that you've just identified there, Your Honor. KELLEY NM. PFANNENSTIEL, CSR, RPR (913) 715-386313 (By Mr. Waddell) That's in Exhibit 202, which is what -- part of what you're looking at, not in your briefcase. Yeah, I have -- and that is an attachment -- you know, that is an attachment to the trust agreement. Okay. And it includes -- is there a correlation from the tangible -- statement of list of tangible personal property that's in Exhibit 202 compared to Exhibit 1? And that's subpart "D" that you were talking about; is that correct? Correct, correct. Well, I'm going to focus on the Stuart Nichols Auld portion of that statement of tangible personal property. TI see 12 24-gold, antique roses plates. The only thing that appears to me that may be a correlation is No. 5, a set of 12 place plates with roses located in the dining room. Okay. So I see that. Okay. Then a large -- then a leather recliner. Was that addressed either in the general trust or a specific statement of tangible property signed by Mr. Auld? I don't see anything that is listed there, as far as KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386314 Stuart Nichols Auld is concerned. Okay. So that wasn't a specific list to him. Okay. How about the third one? A large antique mirror, 24-carat gold. Is that equivalent to Item 6 on Exhibit 202? Maybe. Okay. I can't tell. That's not -- this is more descriptive than what his father put on here. Okay. THE COURT: Why don't you just read what six is so they can understand. NR. WADDELL: Six says large mirror over the fireplace with antique cream frame. (By Mr. Waddell) Twenty-four says large antique mirror; 24, gold leaf standing fireplace mount. It looks like it could be the same. Okay. Twenty-five says light oriental rug in Exhibit No. 1, And on Exhibit 202, No. 1 is light blue oriental rug located in dining room, correct? Yes, I see that. And the last thing is an Indian blanket that does not appear -- it does appear on Exhibit 1, it does not appear to be on Exhibit No. 202, correct? That is correct. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-38632 > 2 > 15 MR. WADDELL: Okay. Your Honor, I would move to admit into evidence Exhibit 202. THE COURT: First, is there any objection from the plaintiff? MS. UVODICH: Your Honor, we -- prior to the admission of this, we would like to voir dire the witness. THE COURT: A11 right. VOIR DIRE EXAMINATION BY MS. UVODICH: Mr, Hammond, are you the individual that prepared -- did you personally prepare this document? And when you're referring to "this document," you mean the list of tangible personal property? Exhibit 202, which is the revocable trust agreement. Oh, the revocable trust agreement, yes. Okay. And this revocable trust agreement, there are pages -- if you could turn to Page 12 of that agreement through Page 18. Twelve through eighteen -- Yes. -- of Exhibit 202, yes, I have those. Is there a reason why the language was -- is not double-spaced? It's all single-spaced, Yes, there is. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863en oannan 10 1 12 13 14 15 16 17 18 19 20 24 22 23 24 25 16 Okay. Why? The reason is because -- to conserve space, literally. Okay. Because when you have the trustee's powers that are double-spaced, it lengthens the document by seven or eight pages and we frequently get complaints about us making documents that are done only to enhance our fees, you know, as far as the length is concerned. So that's exactly why that was done. Okay. And as it relates to this document, as to the last pages identifying the tangible personal property and persons to receive property, did you have any personal knowledge in preparing these documents as to the ownership of this property? No, I just asked Mr. Auld to prepare this of how he would like to have his property actually distributed, and then we prepared -- we actually typed that up -- So was this -- -- from that list that he had given to us. Okay. So this listing of personal property was simply a statement by John Auld, Sr., of who he wanted to receive various property. That is correct. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386317 And did you have any personal knowledge or personal information as to whether or not John Auld, Sr., actually owned any of this property? Nothing other than what he told me that he owned, Okay. $0 you didn't have any receipts, any documents that indicated that he actually owned the property that he told he wanted to be distributed? That is true. Okay. MS. UVODICH: One second. (Counsel conferred with her client.) MS. UVODICH: With that, Your Honor, I have no objection. THE COURT: All right. Proceed with your examination, Mr. Waddell. MR. WADDELL: Thank you, Your Honor. (By Mr. Waddell) And so in this case, in light of the -- MR. WADDELL: Your Honor, I move to admit again. Is that -- you have accepted this? THE COURT: There's been a motion to -- there's been a request to admit Exhibit 202. And do you have any objection to that? MS. UVODICH: I do not, Your Honor. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863c ¢ oO c ¢ C ¢ ¢ oO oO oO oO ( © C ( O (©) C O U C 18 THE COURT: Okay. Now, Mr. Hammond, you're an independent attorney and you also represent the trust, and I want to make sure you have the opportunity to register any objection to admission of 202. THE WITNESS: Yes, I do object to the admission of the statement of tangible personal property in the description as to who is supposed to receive it. I don't have an objection to the document for the trust agreement itself. THE COURT: Okay. THE WITNESS: Ny objection is directed to the fact that it's a private document and the public is not, basically, to be -- is not to be known to the public as to what each party is to receive. THE COURT: All right. Well, if I understand correctly, the only part that's in dispute here, as relevant to this case, is what Stuart Nichols Auld is to receive; isn't that correct? MR. WADDELL: That's correct. We have no problem redacting whatever other portion relate to the other beneficiaries. But, more importantly, Judge, this was a -- THE COURT: Well, before I hear argument KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863Noaron 10 1 12 13 14 15 16 17 18 19 20 24 22 23 24 25 19 about it, I want to see if we can just take care of this right now, the concerns all the way around. Do you have any objection if we just redact the -- what I'm going to refer to as the statement of list of tangible personal property and persons to receive property? I'm not sure it matters what Susan or John Auld, Jr., or Seth or anybody else receives. It's not really germane to this case. MS. UVODICH: Your Honor, we have no objection to redacting the portions other than that as relates to Stuart. THE COURT: Would that allay your concerns, Mr. Hammond, if we just simply have redacted everything but what Mr. Stuart Nichols Auld is to receive? THE WITNESS: Yes, Your Honor. THE COURT: A11 right. That will be the order of the Court. The Court will receive Exhibit 202 with the subject of the list of tangible personal property being redacted to reflect only the information about what Mr. Nichols is to receive. You can show the preamble, the signature of John William Auld, Sr., on that relevant page, which is one of two, and nothing else will be listed. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386320 a. =] NR. WADDELL: Thank you. THE COURT: Okay. (By Mr. Waddell) As it relates to the trust and the items in the trust that address the claims of Stuart Auld in relation to this alleged theft and the claim that occurred after his father's death, what is the status of ownership vis-a-vis the trust and Stuart Auld relating to those items? MS. UVODICH: Your Honor, I guess I'm going to -- THE COURT: He's asking for an opinion, actually. MS. UVODICH: Yes, Your Honor. I'm going to object to that on the basis that he has never been identified as an expert witness. There was an opportunity for him to be identified as an expert witness and he never was, and, therefore, we do not believe that this witness being asked for that opinion at this point in time is appropriate, and, therefore, we object. THE COURT: Okay. The objection is he's never been identified as an expert, and that, therefore, his opinion should be -- not revealed. What's your -- MR. WADDELL: Your Honor, my position is KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386321 this, just as Mr. Auld as an insurance broker is entitled to reflect various portions of the insurance policy that he feels is appropriate in determining his status in this case, as the representative who drafted this trust, he is certainly entitled to make reference to portions of the trust that he feels is appropriate in interpreting whether or not Mr. Auld has a claim to an ownership interest in any of these items. THE COURT: Well, Mr. Hammond has been listed as a witness, I presume, Ns. Uvodich. MS. UVODICH: He was identified as a witness, Your Honor, however, not as an expert. THE COURT: Okay, Well, I'm going to overrule the objection. I think it's clear all sorts of professionals and even people coming to the court who may have expertise, but the fact that they're an identified witness, doesn't necessarily require that all their opinions be revealed. And certainly K.S.A. 60-456 allows for opinion testimony from laypersons or professional persons not necessarily identified as experts. So you can answer the question. I don't believe that Stuart Auld has any ownership interest in the assets that are identified as KELLEY M, PFANNENSTIEL, CSR, RPR (913) 715-386322 tangible personal property. And I'11 go one step further and say that I don't believe any other beneficiary for that matter has any ownership interest in any of those assets identified as tangible personal property. (By Mr. Waddell) And what is the foundation for the conclusion? The reason is that all of the assets are still owned by the trust, and there are claims that have been filed against the trust and against those assets that take a priority over any of the beneficiaries of the trust. There are also claims for trustee's compensation as an administrative expense that would take priority over any beneficiary's claim and, likewise, claims for attorney's fees that have been accrued in the trust administration and through the lengthy litigation that has otherwise been going on. So all of those claims come before any beneficiary, including Stuart Auld Even if there's a specific designation? That is correct. Are there any trust clauses that refer to Stuart Auld in any way? No, there is -- in one provision -- and I'm going to now refer back to your Exhibit 202. And there is KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386323 one portion of it that addresses him specifically having made a claim as a creditor, that he would forfeit any claim that he had to any portion of what is called the remaining trust estate. MS. UVODICH: Your Honor -- what page is that, Your Honor? THE WITNESS: That's on Page 4 of Exhibit 202. THE COURT: And there's, actually, a whereas clause. Just to make it clear to the jury, you'll get to see this exhibit. But to maximize our time, as I see it, there's a whereas clause on Page 202, and then I assume there's another specific provision to which you're referring, Mr. Hammond? THE WITNESS: That is correct, the recitals that we have there. You call it the whereas clause, yes -- THE COURT: Only because it starts with "whereas." We go to law school to learn this stuff, you know. THE WITNESS: Okay (By Mr. Waddel1) And just so the Court is on -- or the jury is on the same page, I now we're doing stuff that you can't fully appreciate, but on Page 1 it says, “Whereas, grantor's son, Stuart Auld, has KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386324 asserted that grantor is indebted to him arising from loans that were made to grantor and, whereas, grantor disputes the liability claimed by Stuart Auld and asserts there is no liability due to Stuart Auld Then on Page 4 there's this reference that says, "In the event that grantor's son, Stuart Auld, shall assert a claim as a creditor or whether or not such claim shall be successful against the assets of the trust estate herein, no share shall be created for Stuart Auld and shall be allocated among such other children as descendents"; is that correct? That is correct. And you feel that -- how does that clause come into play under the circumstances of the present case? That comes into play from the standpoint that Stuart Auld has asserted a claim as a creditor, and, therefore, I believe that he is barred, pursuant to the trust provision, of receiving any portion of -- anything from that portion of the trust agreement. Okay. And how has he asserted a claim? Well, he's filed litigation that has challenged the title to the -- and the ownership of the house that is in the trust. Anything else? KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386325 Well, and the claim has gone, you know, from an -- in the form of a quiet title action, you know, saying that the trust has -- does not own that property and that it should be his property. There's a -- he filed a claim -- a notice of lis pendens prior to filing a Chapter 60 proceeding against his father. What is a notice of Tis pendens? A notice of Tis pendens is, basically, a device that puts a cloud on the real estate so that the real estate can't be sold and -- you know, pending the resolution of whatever action that he might file. And that was done, if my memory serves me correctly, in March of 2011. And then in May of 2011, after he'd already filed a notice of Tis pendens, then he did file a lawsuit suing his father claiming -- making a number of allegations with regard to this promissory note. Did you ever have an opportunity to observe Stuart Auld and his father interact with one another at Mr. Auld's home? Not really. My interaction was with John Auld, Sr. Did you ever go to the home? I did go to the home on several different occasions and one of which was the deposition of John Auld, KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386326 Sr., that I had undertaken, and then Stuart Auld was present at that time. Okay. And he took his father's deposition at that time? He attended that, yes. MR. WADDELL: Okay. TI don't have any other further questions at this time. THE COURT: Cross-examination. CROSS - EXAMINATION BY MS. UVODICH: Mr. Hammond, are you aware that the title to the residence at 9135 Manor was in the name of John Auld, Sr.? Am I aware of that? It was until his death. Yes, are you aware of that? I was aware of that, that it was, in fact, in the name of John Auld, Sr., at the date of his death and that it transferred over to the trust by way of a beneficiary deed so that the trust became the owner at the date of death. So at the time of John Auld, Sr.‘s -- of the implementation of any litigation that Mr. Auld -- Stuart Auld implemented, that property was not in the trust; is that correct? I believe that that is correct, because it was KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386327 sometime prior to that time that the beneficiary deed was generated by virtue of a refinancing that had been done on the house. Okay. And so at the time that the action was filed by Stuart Auld, it was not an action against the trust; is that correct? That would be true. Okay. And at the time that Stuart Auld filed his foreclosure, had you been in contact with John Auld, Jr.? At the time that he filed the foreclosure? Yes, in the spring of 2011, when the initial action was filed, Had I been in contact with John Auld, Jr., at that time? In May of 2011, were you in contact with the John Auld, Jr.? I, frankly, don't recall a specific meeting or contact with John Auld, Jr., at that time. Were you -- did John Auld, Jr., contact you regarding his father? Yes, he did. Okay. And at the -- at what point in time was this trust document -- a copy of this trust document provided to Stuart Auld? KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386328 A. es oe I don't know if -- when that might have specifically been done. That was a duty of the trustee to deliver that. I do know that in November of 2011, Stuart Auld was notified of a portion of the trust that related to him advising him at that time that there was this offset provision that would preclude him from taking anything from the trust. However, Stuart Auld never filed an action against the trust. Did he? Is that a question or a comment? That's a question. Later he -- the trust was involved. Did Stuart Auld ever institute an action against the trust? Well, I'd have to give you the same answer once again, because later the trust was joined as a party and they were -- and named as a defendant from that time on, In fact, when John Auld, Sr., died, did you file any notice of substitution of parties as to the trust? No, we did not. So the trust was never a named party in that action, were they? Never? That's -- no, that's too broad a statement. As I mentioned before, the trust was joined as a KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863Noanon 10 11 12 13 14 15 16 17 18 19 20 2 22 23 24 25 29 party. Did you join the trust as a party? No, we did not. Was the trust ever served with any action by Stuart Auld? Yes. The trust was served. Yes, doing it through his lawyer at that time, the trust was joined as a party as a result of a case management conference. Was there ever a motion by Stuart Auld to join the trust? I think I've answered your question, you know -- Was there ever a motion -- He was acting through his lawyer. Did he personally do it? No, I think his lawyer at that time was Ty Vokins and he did. Judge Sutherland indicated that the trust would be joined and added as a party, a defendant and -- Did -- And let me finish. Was not only added as a party defendant, but there was no objection from anybody at that time with regard to adding the trust as a party defendant. So the trust asked to be added as a party defendant. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863© enNoanen 10 "4 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 p> ep > Judge Sutherland requested that the trust be added as a party defendant and no -- excuse me, no objection was raised by anyone at that time to bring the trust in as a party defendant. So you, as attorney for the trust, allowed the trust to be brought into a case where they were not a party defendant, correct? Did I allow that to happen? Yes. The judge asked that they be joined as a party and, yes, the trust became a party defendant. Did you object to the trust being added as a party defendant? From one standpoint, yes, I did. Did you -- you just testified that no one objected. I said nobody objected from the other side. I did. You filed an objection to being added as a party defendant. I didn't file an objection, but I brought it up to Judge Sutherland at that time. Is there any pleading within the Case No. 11CV4594 where there is a substitution of party on behalf of the trust? No, there's no pleading for that. Okay. And as the action was initiated, it was not KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-38633 ever initiated against the trust, correct? It was initiated by Stuart Auld against his father That's correct. And at that time it was initiated as a foreclosure regarding property that was not subject to the trust, correct? At that time the property was -- yeah, it had been -- the house had been designated as a beneficiary under a deed of which John Auld, Sr., was the sole owner at that time So at that time John Auld, Sr., was the sole owner of property that an action was instituted against, correct? Right, he had a claim against his father Okay. And at the time that -- at the time that you prepared the trust document itself, who all was present? At the time that I prepared it or the time that we signed it? At the time that you -- at the time that you prepared it with John Auld, Sr., when you had your initial meeting, who all was present? To the best of my knowledge, only John Auld, Sr. At the time that it was executed, was John Auld, Jr., ever -- were you ever contacted by John Auld Jr., regarding the trust? KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386332 > ap >ep> I don't recall that I was. Do you recall that you might have been? I would doubt it, because my relationship -- we have the attorney -- pardon me, the attorney/client relationship exists only between myself and John Auld, Sr. So you have no relationship with John Auld, Jr.? That's a very broad question. Do I have a relationship with him? Well, yes, from the standpoint that he's retained me to represent the trust. And have you -- did you have conversations with John Auld, Jr.? With regard to preparing the trust? With regard to the trust. Well, in general, at times, yes, because he -- now the trust is involved in the litigation and so, yes, I've discussed the trust with him. At the time that the trust was executed, who was named as the replacement trustee or -- The successor trustee? The successor trustee. I believe that was John Auld, Jr. Okay. Was he notified that he was named as the successor trustee? KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386333 That would have been up to John Auld, Sr. Okay. Did you ever have any conversations with John Auld, Jr., regarding his role as successor trustee? Well, certainly, you know, since the time that his father died and he became a successor trustee, then I've had a number of conversations with him about the administration of the trust. Okay. Did you present Stuart Auld with a form to file a claim against the trust? No -- oh, yes, I'm sorry. Did I give him a form to file a claim against the trust? We notified him of his obligation or the -- that he would have the opportunity to file a claim, yes, we did do that. And as part of the trust, does it also state that anyone that files a claim against the trust would, therefore, not be able to recover? No, I think that relates only specifically to Stuart Auld, not to anybody. Okay. Let's go to Page 7. MR. WADDELL: Exhibit 2027 MS. UVODICH: Of Exhibit 202. Okay. I have that. (By Ms, Uvodich) Does it identify -- and this would be as to anyone, correct? “If any person who's been KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386334 2 Pp > p> PrP >e> given an interest in the trust estate institutes or joins in any proceeding to contest the validity of this revocable trust agreement or any of its provisions, all benefits provided for that person shall be revoked." Is that what that language states? Yes, that's what that -- that's a correct statement. And does that affect the filing of a claim against the trust? No, it does not. Okay. Now, you've indicated -- Unless the claim challenges the validity. Okay. You've indicated that Stuart Auld was the only individual -- in fact, let's go to Page 22. Page 22. We're still on the same exhibit? Of Exhibit 202. Okay. Where it identifies "claim by beneficiary.” Yes. Does that language state, "In the event any beneficiary herein shall file a claim with the trustee herein and shall be subsequently determined by a court that said claim is invalid and should not be paid, the trust share of such beneficiary shall be reduced by legal cost, expenses, and attorney's KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863© earNoaanea 10 4 12 13 14 15 16 17 18 19 20 a 22 23 24 25 35 fees"? Yes. So does that create difficulties in -- does that put special burdens on whether or not you file a claim against the trust? I would certainly think so Okay. So there are provisions that affect whether or not you file a claim against the trust, correct? Yes. Now, you previously testified -- at this point in time, as of today's date, who owns the home at 9135 Manor Road? Very clearly, the Trust of John Auld, Sr., owns that property. And did Stuart Auld ever file a claim against the trust? He's filed -- he's acted as a creditor in filing and continuing litigation, yes. I would answer your question definitely yes He filed a claim. When you brought him the claim form, Stuart Auld filed a claim against the trust? No, it said -- the definition is filing an action as a creditor. I'm asking about Paragraph 3, Page -- I'm sorry, I'm asking about the beneficiary claim provision. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386336 — You mean on Page 22? On Page 22. Did Stuart Auld ever file a claim against the trust? He has filed a claim as a creditor. He has acted as a creditor against the trust. Did he -- but when you brought Stuart Auld the claim form and told him that he could file a claim against the trust, did Stuart Auld file a claim against the trust? He didn't have to because he had already acted as a creditor. Keep in mind the definition that was included that eliminates him as a beneficiary identified a claim as a creditor, and he had already done that by virtue of the Chapter 60 proceeding that he had filed sometime in 2011. Under Page 22 of the trust agreement, where you submitted a claim form to Stuart Auld -- First of all, I didn't say -- THE COURT: Hang on. Hang on, Nr. Hammond. THE WITNESS: Yes. THE COURT: Wait until she finishes her question. Go ahead, Ms. Uvodich. (By Mr. Uvodich) As a claim beneficiary, did Stuart Auld return that claim form to you to file a KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863oon oaneaon 40 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 oe o> claim against the trust? First of all. Your premise, I think, would be incorrect. MS, UVODICH: Your Honor, I would ask that the witness be directed to respond. I believe he's -- THE COURT: Mr. Hammond, you may have opinions about whether he's filed a claim by virtue of some other actions, but I think the question before you is more direct. It's, simply, did he fill out that form? THE WITNESS: And my response, Your Honor, is that I'm not sure I ever submitted a form for him to submit. That's why I said I'm rejecting the premise; I don't recall actually ever having sent a form. I did notify him of his obligation to file a claim, but I don't think I actually gave him a form to use, If I did, I don't recall it, but I don't recall what I did. (By Ms. Uvodich) Okay. Okay? So how did you notify him? By letter. Okay. And in that letter did it include any format that he would need to use to file a claim? KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863( 38 Just -- my recollection is that -- and this is back in 2011, it was -- I do recall it was in November, because we filed a publication notice with the legal record that the law requires, and then we sent out specific notice to each of the beneficiaries and with, particularity, as far as he was concerned, it quoted that provision of the trust agreement that showed what his share would -- would be offset by -- any claim would be eliminated if he did file a claim. Okay. So in November of 2011, you notified him that there was a provision regarding a claim, and if he pursued a claim against the trust, you notified him that by pursuing a claim against the trust, he would no longer be a beneficiary? That is correct. That's -- I quoted the section that we had talked about previously, but we talked on Page 5 -- or 4, sorry. No, I think it is -- it's on Page 4, I quoted that express provision so he would be on notice that if he did file a claim, that it would be -- he would -- that provision would be applicable. Okay. So in November of 2011, you indicated to him that if he filed a claim against the trust, in November of 2011 -- but his lawsuit was already KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386339 SanaEEEEI EERE Pe > ere > pending, correct? That is correct. So at that time he didn't file any new actions. Did he? Did he file a new action. Well, yes -- Did he file a new action? He amended his pleading, which might be construed to be a new action as it were. But he never filed any new action. It's all in the same action that was filed months before that, correct? Other than the amendment, that would be true. Okay. So there was no new lawsuit filed, correct? That would be true After he received the letter from you, correct? I would have to agree that that would be true. Okay. Now, on the items of personal property that are identified on the last two pages of the trust, are you aware that -- hang on one second, I'm sorry. Under the trust itself, on Page 3 under “disposition of tangible personal property," Paragraph B, does it identify that upon grantor's death, the trustee shall distribute those items of tangible personal property described in a written statement or list in the writing of grantor, signed by the grantor, to KELLEY M, PFANNENSTIEL, CSR, RPR (913) 715-386340 the person or persons therein? Does it indicate that the trustee shall distribute that property? Yes, it does say that. And does it indicate any caveat under that paragraph indicating whether or not that is subject to any other provision of -- any other limitations within that paragraph? Does it identify any other restriction or anything that changes the requirement to deliver that personal property? No, it does not. Okay. And it actually requires that this personal property be delivered within three months; is that correct? That's what the document says, yes. Okay. And this would have included the property that was on the list in the back of the document; is that correct? That would be true. Okay. And in that document were various items that Stuart Auld was to receive; is that correct? Yes, he's identified as a beneficiary Okay. And under that list, are you aware that he has received some of those items? I'm not aware of that. Okay. And are you aware that various other family KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863“1 members have received many of the items that are identified on that listing? I'm not aware of what disposition has been made of any of the assets that are on that list. Were you aware that some of the assets that were on that list were removed by family members prior to John Auld, Sr.'s death? No, I'm not aware of -- and I go back to what I said before, there's two things that are happening here. You know, first of all, what may have happened as an obligation of the trustee following the death of John Auld, Sr., and whatever John Auld, Sr., may have given away prior to the time he died; two different things. Okay. So he may have done some -- he may have made those gifts prior to the time he died or may not have. 1 don't know. Okay. And you don't have any personal knowledge as to who the actual ownership of any of this property was in, correct? When you say “actual ownership," you mean somebody other than John Auld, Sr.? Correct. You don't have any personal knowledge as to whether or not he actually owned the property. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386342 You think he made a listing; is that correct? He made a list, and I would have to believe that under either one of two scenarios that he certainly did own at least half of the property. In fact, you don't know -- you don't have any personal knowledge as to whether he owned any of that property, correct? You weren't there when he purchased it. You don't know the ownership. You weren't living in the household. You didn't know whose property was where, correct? That is true. Okay. So as it relates to now, you indicated that where the will of Nancy Auld, Sr., [sic] was not probated, your testimony was that it is void, correct? That is my testimony. Okay. And so if within a family people distribute personal property pursuant to the terms of a will, do you believe all of that, the distributions, are void? Potentially, yes, because the law of intestate succession would take over if there is no will, and the law of intestate succession would say that one-half would go to the surviving spouse and the other half would go to -- in equal shares among the KELLEY M, PFANNENSTIEL, CSR, RPR (913) 715-386343 children. Okay. But as it relates to a will, where there is actually a will and it's a discernible will, it's not -- you don't have to probate a will every time someone dies; is that correct? No, you don't have to, no. Okay. In fact, in many instances where various provisions have been made in a will, to your knowledge people distribute the personal property along the terms of the will, correct? Yes, that could happen. And where personal property is distributed, are you saying that the people that receive it do not then have ownership? Not if they've made -- if they do it on an informal basis, I would say that they probably would have ownership because nobody challenges it. Okay. So where property is distributed pursuant to a will that's not probated and nobody contests whether or not that property rightfully belongs to that person, then it, essentially, becomes that person's property, correct? Yeah, as long as there's no contest, but there -- there are provisions in the law for family settlement agreements that are done, you know, KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386344 through probate; but, you know, if it's done informally and there's no contest and nobody wants to challenge what the other people have taken and it's kind of an informal agreement, yes, those things happen. Okay. And now, where Nancy Auld -- when she died -- you did not prepare her will? Did you prepare her will? Yes, we did. Did you prepare the list of items that she intended to transfer to her children? I've not seen any list of items that she prepared to transfer to her children. Okay. Are you aware there was a list of items? I'm not, no. Okay. Are you aware of specific items that were intended to be -- any intentions of Nancy Auld regarding her personal property? I'm -- I was not aware at the time that the will was done that there was -- and, again, I didn't examine all of my records before I came here today with regard to the Nancy Nichols Auld will. So to the best of my recollection, as I'm siting here right now, I've not seen a list that she had prepared; maybe she did. I don't recall for sure. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386345 Okay. And if, pursuant to that list, those items transferred to the individual that was identified, that wouldn't be something you were involved in, correct? Probably true. Okay. And you said you did prepare the will of Lillian Klausen? No, we were involved in the estate or some of the estate administration of Lillian Klausen. And, again, that's not one that I came here prepared to testify about today. That's -- she died some time ago. And that was Nancy Auld's mother, correct? That is correct. Okay. So is that how you became familiar with Nancy Auld? No, not necessarily. It might have been ny predecessor that had actually done some of the work for Lillian Klausen, but, again, I'm not sure. That's not something that -- I mean, I didn't examine those files before I came here today to testify. Okay. When John Auld, Sr., executed an assignment, did -- was it a very detailed document? I'm not asking for specifics as to what it said, but was it KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863SeernNaararan ch 12 13 14 15 16 17 18 19 20 24 22 23 24 25 46 > a detailed document or was it a generalized statement stating all of my personal property? No, I think it was a detailed document Okay. NS. UVODICH: One second (Counsel conferred with her client.) (By Ms. Uvodich) Now, you indicated that -- you did state that you saw the assets that -- at least some of the assets that were on that listing when you went to the residence of Stuart Auld, Sr.; is that correct? That is true. Do you know when the last date that you went there was? The last date that I had visited the house, I'11 do the best I can from my recollection, was maybe a week before he died. I met with him when he was bedfast and -- we were just very briefly there, I recall. Okay. But you did state that you had prepared the trust of Nancy Auld; is that correct? No, I didn't say that What did you prepare for Nancy Auld? I did a will for Nancy Auld. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386310 an] 12 13 14 15 16 17 18 19 20 24 22 23 24 25 47 Okay. Did you prepare a trust agreement for Nancy Auld? No, I did not. Do you know if there was one that was prepared? I believe that there had been one that had been prepared. Do you know who prepared it? I believe that -- my recollection is -- I didn't know it at the time, but I later learned it was Dick McKeachum, MS. UVODICH: Okay. Your Honor, I have no further questions of this witness. THE COURT: Redirect. MR. WADDELL: Just a few. REDIRECT EXAMINATION BY NR, WADDELL Mr. Hammond, I'm just trying to figure out, after listening, how can you reconcile that there's an obligation of the trustee to distribute specific items on one hand and then claim that Stuart Auld is entitled to none of those items on the other? That's easily reconciled, because claims that are filed against the trust come first; administrative expenses, such as trustee's fees and even attorney's fees come ahead of that; and so, finally, after all KELLEY M, PFANNENSTIEL, CSR, RPR (913) 715-386348 of those claims and all of those obligations have been satisfied, if there are any remaining assets, whatever they may be, then that is what is actually distributed. And it would mean that all of the items of tangible personal property would be liquidated to satisfy claims because creditors have the first shot at the assets. It's pursuant to the Uniform Trust Code. So even though the trustee has an obligation to make a distribution within 60 days according to the terms of the trust, that trustee also has an obligation under the trust code to protect creditors? That is true. And if there, in fact, had been a distribution of those assets, that is -- would be something that should be recovered by the trustee to satisfy the claims and creditors. And so that's his -- the trustee in this case, John Auld, Jr.'s preeminent position now, because there are significant trust creditors. I don't know how many there are, but I've seen several that would have to be satisfied that I don't believe have been satisfied at this time. Okay. And, again, in your position in relating to the three different clauses on Page 4, on Page 7, and on Page 22, does the trust provide that you have KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386349 to have all three of those clauses in order to be denied a distribution under the trust? No, I think the order of priority is very clear, that, first of all, creditors have to be satisfied, and secondly, if that happens to exhaust all of the property, and by the way, all of that property could have been exhausted even before he died, because that's the trustee's obligation is to utilize the trust assets for the benefit of John Auld, Sr., but those assets would have been exhausted and then whatever assets -- and the only other asset that remains is the house that is in the trust, then a creditor would have to be satisfied, if they haven't already been satisfied, you know, from the proceeds of the sale of the house, for example. So at this point although there's reference to specific distributions, the trust isn't closed because there's still outstanding litigation and outstanding creditors, correct? That is correct. So none of the trust assets belong to anybody but the trust. That is, I believe, the correct legal conclusion. Even though they may even have been taken or distributed, whatever the case may be. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386350 Pe > p> That's right. The trust, not the individual, has possession of it. That is true. And just so I'm clear, you didn't send this letter to Stuart Auld to try to trick him into making a claim against the trust. Did you? No, I felt that he already in reality had made a claim against the assets. And how did you feel that way when the -- clearly the named defendant in the lawsuit is John Auld, Sr., who was the title owner of the property, not the John Auld, Sr., Trust, which wouldn't get the property until after John Auld died? I think that there's -- probably missing from the equation here is the fact that in the probate law anybody who has a claim against anybody else has an obligation to open up a probate estate themselves And so -- and that has to be done within six months after the day of death. And so Stuart Auld never did make any attempt to open up an estate even though he did have a claim against his father as a creditor. Then later on, when he continued to pursue the claim against the trust, then I believe that the language -- the offset language here then comes into play KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386351 So once his father died and the time period expired for Mr. Auld, Stuart Auld, to open an estate, then by default the claim he has formerly against his father now is against the estate? That is correct. It's against the trust. The trust. When you did go, a week before John Auld, Sr., died, was Stuart there? No, he was never there at any time when I was there, except for the deposition as I mentioned before. Okay. I'd seen him in the house fleetingly, but, I mean, as far as -- you know, I can recall maybe one time when he came in when we were doing something else, but that's it. Okay. And the eviction action, on whose behalf did you file that? I was hired by John Auld, Sr., to evict Stuart from the house. Not John Auld, Jr.? Not -- John Auld, Sr. MR. WADDELL: Okay. Thank you. I don't have anything further, Your Honor. THE COURT: Any recross? (Counsel conferred.) KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386352 RECROSS-EXAMINATION BY MS. UVODICH: Mr. Hammond, you just testified that for Stuart Auld to proceed for a claim against in the probate, he would need to open a probate estate, correct? That is correct. I'm going to present you -- MS. UVODICH: May I approach, Your Honor? THE COURT: You may. MS. UVODICH: And I don't have an extra copy. THE COURT: That's fine. (By Hs. Uvodich) What's been marked as Exhibit 9 -- 19. I'm sorry, Exhibit 19. Can you identify what that is? Yes, that is a letter that is dated November 9, 2011. It is directed to each of the beneficiaries of the -- each of the beneficiaries of -- relating to the estate. And it is advising that we have filed a will of record and that -- then I said, apparently, he left no property which would be subject to probate under his last will and testament. At that point in time, you had opened the probate estate; is that correct? KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863Oe oe 10 4 — 13 14 15 16 17 18 19 20 241 22 23 24 25 53 > Ce oo = No, that is not true. What had you done? Just exactly what this says, we filed the will of record only, Okay. What court was it filed in? Johnson County District Court. Probate? Yes. So you filed the will within the probate court. That is correct. If anyone had wanted to contest the will, could they have gone under that case number and contested the will? They certainly could have. So there was really no need to open a separate probate estate. Yes, there is, because filing the will is not opening an estate. You're trying to say that it is, but it's not. There's two provisions in the probate code that permit you to file a will of record only to preserve it in the event that you may need to use it later on to transfer the title to property. However, if someone contests that will, they can go under that probate case number and contest that will, correct? KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386354 2 > eo > > They could. Okay. They would have to open an estate to do it. Okay? Because we've only filed the will of record. They would have to file other documents within that case to do so, correct? They would have to open up an estate; that is correct, which did not happen. Okay. Now, you just testified to Mr. Waddell that the only asset that’s available -- that's fully available at this point is the house; is that correct? Fully available, I would say "no." Technically, all of the tangible personal property is available to satisfy the claims of creditors. Have you notified the trustee that he needed to retrieve the personal property that's been distributed to them? I have, When did you notify him of that? The last time I talked with him was yesterday. And did he explain that the personal property had been distributed? No, he did not explain that to me at all Okay. KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386355 admis recei 2011? quest Your MS. UVODICH: Your Honor, I move for the sion of Exhibit 19. MR. WADDELL: No objection, Your Honor. THE COURT: All right. Nineteen will be ved. And that's your later dated November 9, THE WITNESS: That's correct, Your Honor. THE COURT: Okay. MS. UVODICH: Okay. Those are all the ions I have at this time, Your Honor. THE COURT: Anything further? MR. WADDELL: Nothing further, Honor. This witness may be excused. THE COURT: You may step down THE WITNESS: Thank you. (End of requested excerpt of Charles Hammond's testimony.) (The following proceedings were had before the Court and jury with all parties present.) (Proceedings already in progress.) THE COURT: Any rebuttal witnesses? KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863C c G © G oO c C oO O Oo oO ¢ O C C ( O C C oc ee 10 an 12 13 44 15 16 17 18 19 20 2 22 23 24 25 56 MS. UVODICH: Your Honor, I just have two quick rebuttal items for Mr. Auld THE COURT: All right. Mr. Auld, I'11 remind you that you're still under oath. THE WITNESS: Yes, Your Honor. STUART _N. AULD called as a rebuttal witness on his own behalf as the plaintiff, having been previously duly sworn to state the truth, was examined and testified further as follows DIRECT EXAMINATION. BY MS. UVODICH: Mr. Auld, please refer to Exhibit 200. What is that document? It's the second trust that my mother did. After the 1995 first trust, she did this 1997 trust. Okay. And were you a beneficiary of that trust? I was a beneficiary along with the other five children of both trusts. Okay. And did that trust -- to your understanding, did that trust include personal property that was involved with your mother? Yeah, if you go back to Exhibit A on both of those trusts, all of her personal property was conveyed KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386387 pursuant to the schedule of property. On No. 3 it says all of grantor's tangible personal property, including household goods, personal effects, furniture, and collections were transferred to the trust. Okay. Now, there's a dispute as to which trust is controlling. We don't have to get into that. But whether it's the first or the second, she conveyed all of her personal property to those trusts. And did -- under that trust, did you receive any property? I did. What property did you receive? I received plates. I received the mirror that I always primped in front of and -- I don't have the list in front of me, but the oriental rug would have been included because she got all those in the divorce from my father, And, you know, there probably would have been a few other items. Certainly, the grill and the lawnmower came from my father but -- As it relates to your mother, did you -- was the Indian blanket included? Correct. ] KELLEY M, PFANNENSTIEL, CSR, RPR (913) 715-386358 And were you ever contacted regarding those specific items by the trustee of your mother's trust? My sister, Nancy Anna, gave those properties to me, yeah. Okay. So at the time that they were given to you pursuant to your mother's trust, were they -- did you consider them your property from then on? Yes. And the discussion with my sister was, we'll just keep them upstairs so Dad will be comfortable. MR. WADDELL: Your Honor, objection -- That could be hearsay THE COURT: Stop. Stop. The objection is what? MR. WADDELL: Any comments made by his sister is hearsay. THE COURT: Okay. That's hearsay. Go ahead. MS. UVODICH: Okay. (By Ms. Uvodich) As it relates to the insurance policy in Exhibit 3, Page 13 of 16, is there any provision regarding assignment of the trust -- of the insurance policy? Absolutely. And what does it state? I don't have it in front of me, but, basically, KELLEY M, PFANNENSTIEL, CSR, RPR (913) 715-3863ean aen Sean 12 13, 14 15 16 7 18 19 20 24 22 23 24 25 Pre >e D> 59 —_— there's no assignment without the written permission of American Family Insurance. Okay. And the only other provision is the one we talked about earlier regarding deceased -- what happens when there's -- an insured becomes deceased, which is 5(C), I believe. Okay. MS. UVODICH: TI have no further questions, Your Honor. MR. WADDELL: Just a brief follow-up. THE COURT: Okay. Cross. EXAMINATION BY MR. WADDEL In your testimony you indicate that Exhibit 200 contained an exhibit of items of schedule of personal property; is that correct? Are you talking about the schedule attached to that? Yes. And go ahead. What -- I don't see one. You don't see a schedule of property? I see "schedule of property," but I don't see an itemized list of any property. My schedule of property says grantor's residence, grantor's KELLEY M, PFANNENSTIEL, CSR, RPR (913) 715-3863Noaren 10 cht 12 13 14 15 16 17 18 19 20 24 22 23 24 25 60 — _ —e checking account, all of grantor's tangible personal property. Well, No. 3, keep reading. That's it; personal effects, furniture, and collection, It doesn't itemize anything. It says "all," all of grantor's, all. You -- Any of her personal property, any of her household -- I apologize for interrupting. And it's your testimony that you received everything of your mother's? No, my testimony is it was in her trust, not my father's trust, not my father personally. And yet some of -- These items of dispute were in her trust. They do not -- they're not owned by my father. They were -- they were listed in your father's trust, He's just reaffirming what my mother already did. That's your -- That's all my father was doing. That's your conclusion. No, I know absolutely as -- with personal knowledge. You didn't prepare the trust document of your KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863Gt — | this case A. Okay. No, prepared that one. MR. WADDELL: further, Your Honor. father. A. I did his first trust, yeah. Q. The document that's been entered into evidence in I did not prepare that; Mr. Hammond I don't have anything THE COURT: Anything further? MS. UVODICH: Nothing further, Your Honor. THE COURT: ATl right. You may step down. (End of requested excerpt of Stuart N. Auld's rebuttal testimony.) KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-386362 CERTIFICATE STATE OF KANSAS) Ne ics: COUNTY OF JOHNSON ) I, KELLEY M, PFANNENSTIEL, a Certified Shorthand Reporter, and the regularly appointed, qualified, and acting official reporter of the Tenth Judicial District of the State of Kansas, do hereby certify that I reported in machine shorthand the above and foregoing proceedings heard on July 16, 2013, before the Honorable David W. Hauber, District Judge of said court; That, thereafter, I personally prepared the foregoing transcript, by means of computer-aided transcription, and that said transcript is a true and correct transcription of my shorthand notes, all to the best of my knowledge and ability. SIGNED, OFFICIALLY SEALED, AND FILED WITH THE CLERK OF THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS. / Kelle Pfannenstiel KELLEY M. PFANNENSTIEL, CSR, RPR Official Court Reporter, No. 1299 (913) 715-3863 KELLEY M. PFANNENSTIEL, CSR, RPR (913) 715-3863} O mee AGREEMENT OF THE AULD LIVING TRUST ‘aacy Nisbols Ault, presently residing a Leswood, Keasas, (hrenatter referred to 8s the “Setu6y*) ‘haceby transfers cortain propery isted an the attached Schedule "A" in trust 10 Nancy Mchols Aud, erate refered 25 he “Tio and Suse 8 Powel, Sth, i, and Nancy A. Rk (erahnattor referred to 2g “successor Trvstea” or % context waraats fy; ‘Setlor ato decks or may desire to have the proceeds of ane oF more polities of hsurence of lntrasts Unies retkement plans or ater assets payebie tothe Trustee hereunder; and atthe requast of Sztlor, ‘the Trustee agrees to hold all such property and aif sddkions thereto, fom whatever source, I tust fellows: ABTICLEL G BENEEICIARIES ‘Seatoe hos ve cbr: Jaba Watiam Auld, t.. Stare Nichols Aud, Susan Nenetie Auti Powel, Seth ‘Henilton Auld and Nancy Anna Autiteonkiin 8s of the date hort. Tha teem "ch#O™ oF “chien” ‘5 uuod bn this Tose aero thse nemed persons. yy ~ ARTICLE ‘BEVOCABILITY Settor reserves th right at anytime or tines to amend, eter, revoke ar terminste thle Tus, bv wihole ‘rin part. ar oxy provisons (root, by an instrument in wing elanod by Setior and dalivored tothe Trustee. this Tati rovoked In te enter, the revocation shal tako affect upon the dalivary of tha ‘equied waiting 0 the Trust. On the revocation ofthis Trust int antkey, the Tistee shal pay or trenster ta Setter, as Setor shal lve inthe Inscrument of rovoeatan, ai Of tho tr fender ‘eserves tho right by Satter's ov act alone, without the concent ar approval ofthe Trustee, (0 sal, a8- ‘ign of hypothecste any policies of insurance or any interest In retirement plans made payable to the Trustee or held by tho Trust, 10 exarese any option or prbiege granted by such polises or plans, i= -cludlog but without imitation ofthe generality af the foregobg, the ight to chenge the beneteieis, 10 ‘borrow any sum in accordance with the provisions of such paises or otens. and to receive el poy ‘mans, divide, surrendec values, benef ts orprvleges of eny Kind which may accnio on account of ‘such policies or contracts deposited with or hald by the Trustee hereunder. A, Bavmaat of Net focoms, During th titetine ofthe Sezer, tho Trusto shal pay tho ene net incomé of the tustestee to the ‘Stor fom timo to tia, unless otharwise dected, In wing, bythe Seton. 8. ities by Sattar, During the Hetine of the Suttior, sho msy withdrew eny or af of the net income or prince! ofthe ruse esata by davaring to the Trusioe @ wrttan notice of het lnention #0 to do. The Trustee shal, ‘withia thirty (30) dave attr recelot of such waiten notice, claeBto tho porion af the net mcorte er ‘rincioa of the ret estate so withcrewn. in the event ofthe death of tho Setlor aftr ecivice ofthe ‘otic of wisdrawal but prior to the defray ef net income or ptneloal of tho tnt estate thereonder, ‘the Taustsa shal novertholes deliver the property £0 withdrawn to The astote of the Setar orto the econ, tn or corporation so designated asthe recent tere h the nate of witbaawal, 38 the 7 7 SCAN DATE 2012/08/31 19:92 ‘sy One AUL 0162‘Notwithsteting the provisions of Paregiaphs A and 8 horoo!, so long 2s the Sattar shall ve, tho Trustee or successor Trustee, In uhe exercise of ls sos and uncontofedascrtion, may pay t0 or use ‘or expand forthe benefit of the Seto, such portion or portions of the net income or principal ofthe trust estata as it deams nacessory to prasisa fer Settor’s cre, support, malntenanco ond matical at tantlon; provided however, that nothing herein contained shall be cansteued es lining, in éay wey, ‘ho tight ofthe Seuor to receive auher Income or pineal under the provisions of Faragreghs A and ‘here, it being te intention of the Patias hereto thatthe provislons of this Paregragh bo use forthe ‘benefit ofthe Setilor should she for any reason, be incapable of requasting payment of net come ar ‘Brelbe, or recting tho dserbution thereof under the provisions of seid Paregrephs A end B. ARTICLE NY ‘ADMMINISTRATION OW SETTLOR S DEATH Qn Settor's death, this Test shall continue for the perlod requlred to adialister Setdor's estore “andlor the assets of this Taust. The Trssoe or ayecessor Trustee can aecumlste income dorng 182 ‘period. After thts period of edmintstration completed, any ts or tvsis dselnated below shal thea be funded. Prats LTANGIRLE EERSONAL PROPERTY. Upon Settior’s desth, si! of the household goods, fumiture and furnishings, jowelry, clothing, ‘suiomabtes end any otter tanaBie aes of e pesond natu, citing enyssuronce poms or Sec propery wich frm o pa of tis Ts hal peas flow 1. Sétilor aay leavo 2 mamorondum stathg her wishes with respect t the disposhion of eertan ar ‘eles of the tangible personal propaty founlag @ part ofthis Trust. Said memorandtim shel bo st ‘ached hereto as Exhibit “A% Any property passing to Sattor'schitiren under such seperate wing ‘egarding tangle peesonal property shel be licluded in the shere otherwise pessing undor this Trust ‘or purposes of determing equal chares. 2. Setor’s chiaren irom this mange if thoy ar thon living, shal be given ten (10) tems of hisrer ‘reference af tangle personel property which Sotuor made erst or did ovn, and which have not ‘een specticaly bequeathed on the soparata wilting whlch Setior may have prepared diving her ‘Mtetine conceming the distition of tangible personal property. 3. All of the rest, rave snd rémalnder of tangible personal property owned by the Trust and nat ‘otherwise aisrbuted hereunder shal be appraised by 2 reputable and quafiied eoproiser of personal ‘roger, Sottlor hereby grontshisfter chidren the right fo purchase any remaining article of ten ‘9Be personal property atts appraised value. In tho event more than ane of Sater's sald chorea ‘hail be desirous of purchasing the same saco of tangible pecsonal property, then the choloe of which ‘of Setlore sald chidren shall have such right shal ba dotarmined by lot under the crection of the sac. {ee8s0r Trustee. Any property not puschosed by Setlor’s sald children, etal bo liguidoted and tho roceeds from sald liquidation and the procoods trom the sata of sald property to any of Sector's hdr shal be aided to the reste of thle Tvstasito and dstibuted eccordng to Article Vi of tis Trust nseument. amici ‘BESIDUE ; Q & 5 i AUL 0163° ° (On the deoth of Sutter, a propuny held tn 1st herunder or Uisttouted to this Tut from Setor’s estate which remains after the application of the arovisions of this instrumont, Including any of the foroqoing gifts inthis trust which for any reason shal fai to take effect including property valdlyds- Claimed under tho Intel Rovere Code # prior rovistons ofthis tust do wot otherwise provide how ‘such cisclaied property passes) shel be hol in ts or disposed of es follows. The twst propery ‘Shall be divided ino es mony equal shares a2 thre are chitdon ofthe Settor. The Trustee shal ‘modistaly dsbuo, fee and clear ofthe terms of this ust, the shere of any chitd of the Setar to ‘such child. No sharo shal ba ereated for any deceased, unmbried chit ofthe Setdor. In tho event ‘thet none of Settors chiéren survive her so that distibution cannot be mede 2s herhbelors ‘Provided, then the trust property shal bo distributed to those porscns entitled to shere nthe Salon's ‘tate pursuant to the laws of Intostato succassion ofthe State of Konses. ARTICLE vo DEEINCONS AND ADMINISTRATIVE PROVISIONS Unless athenvise specilicaly provided as tothe various interests created under this Trust: A. Sundeal Clauss, For puposes af al ots under this Inteument,» person who would take on the ‘death of another person shall aot be considered t0 survive such other person If he or sho dite at the ‘same tine as or within thity (30) days of the death of such other parson, arovHed thr tis Section ‘Quordian of such person is hereby desiynated Trvsieo of the assots distbutable to such arson) may, {nhs discretion, withhold esufoution of such property, iovest and ralvast the same and coloct tho Jncome therctrom, uni the beneficiary attains aga twanty-one (21) or fs no longer 2 Disabled Person, {t which tine the trust shal tarminata. Durkag this exstenco ofthe tris, the Trustee ay Sop as ‘much ofthe nat income or prinenal to the host, educatian, and support of the beneficiory 8 the Tiustes deomis nacessary of advisable without the atervention of ony guardian or conservator. Upon temninaton, the Taustoo shall pay over ta tho benefeary the expended princi! end income £0 ‘with If the beneficiary des before terminadon, al principal and Income shal be paid over tothe ‘personal rerescatative of tho beneficiary's esate. Tho authority conferred upon tho Teustee by this ‘eregranh shall not operate to euspend or prevent the aventual ebsolute vesting of any nraperty in ‘such benetisinry In regard to the edininitretion of any such property, the Tausto> shel have all ‘Bowers, authorty end dscretion vested in’ any fdoclary under the provisting of this Tas. A “Disabled Parson" means any. adult whase ably to recera and evaluate information effectively orto ‘curmmunicate decisis, or both, is impaired to such an extant thatthe percon fake the capacity to ‘monege such person's inecie! resources, and incudos someone who eannot take any requste eo. ‘ions due to involuntary detention or tsappearance. The cerication ofa sensed physicln selected ‘ the Trusteo shel e binding agora the benciiery‘s stat 0s @ Disobed Parson (ortho purposes ft Section: and the Trustee shal have no lebity to anyone for ecting i good flth upon sith cer Income Disoastin, Any Income realled during the period of edministravion of Sctlor’s estate or ‘this Teast may bo used by Settlor’s Executor or Trustoe to nay expansos of dminisration, debts ond tones 08 set forth ia this Trust and/or Settar’s Wi, and to the extant not so used shel ness with the ~ restive, except os expressly provided ebove athorwise. SCAN DATE 2012/08/21 18:52 AUL 0164ARTICLE vit POWERS OF TRUSTEE {n extension and notin intaton ofthe powers gen by lew or other provisions ofthis Trust; the Trustee shall have the folowing powers wath rspect fo the property ofthis trust, dn each case tobe ex ‘excised fram tine to time ot the Trustee's discretion and without order or lconso of court: 10 retain ‘ropes Serdor owns et death: to eal for cash or on ered tor eny term whether or not extending ‘eyond the odentistreion of tho estate and eny trust) orto exchange, transfor, morigage, pledze or ‘otherwise in any way dase of or deel with the whole or any part or ports of the Trust assets, real oF ‘personel, et publi oF privata sole or transaction; to make looses (iehyding mineral oases) which aay ‘ertand beyond the duration of the Trust; to manege propertss end to invest and ralwvest funds; 10 ‘perate enterprises In which Sertor owns sn intaret 2t death; 10 vote shares and secures, 10 exe! ‘che stock rights end to partjpate h management or reorgsnizationa arrangements; 1 set, con ‘promise, aust, quidete orrlese cles and debts; to investi deposhts and other accounts of any ‘aanciel institution serving os 2 Trustee hereunder; and, in genet to manage ond ded! with tho Trust assets upon such terms end for such consiterations as tho Trustee deems proper and prutlent. In fur- ‘therence ofthese objective, tho Tustoo Is vested with full power and authorty fo make, execute, 30> ‘tnouledge and deliver such assipaments, bits of sale, doods or other vrthgs to maka such tensters ‘and deliveries of possession as may be necessary fo vest n eslgnees or benefcieres tho requisite ‘awmership and possession, free trom all trusts. Jn addttan, tha Trustee shall have al of the powers ‘and dsereuans cantainod in tho Unitorm Tassos” Powors Actos the same is now i arco in Keres oF 9 & may hereafter bo amended, In ech Instance to bo exercised from te ta thne in the Trustee's discretion and without onter or lcense of cout. Jn dviing or distributing the rust assets, the Trusteo ‘may make such payments or cisions in Kind or In eash, of party ta kind end partly fn cash, nd, ‘in the Taxstoo’s discretion, elocsta particular assets or porns thereof on @ proportionate bess, oF ‘undivided interests therein tothe beneficiaries herounde, taking lato eccount the lacome tax beses Or ‘other income tox chorectetties of such essets 8 the Trestea shal dean ta be forthe best interests of ‘he beneficiaries; and for the purpose of any such dstabution, Yo select such securtion or other property asthe Tristee may deom sutabo. In making ttrbutions to minors. the Testes may roake ‘such distribution to or for the betoft ofthe miner to 2 natural or lope! guardian ar conservator, orto @ ‘eustodion under the Untonm Transfers to Minors Act. The decision ofthe Trustee sha be Mah end ‘iading upon el partes in nore, unless otherwise provided for heel. Prucotang DEBTS. TAXES AND EXPENSES A. Notwithstanding the directions horetofoo ivan tothe Trustee with respect to the dstiution of i= ‘Some and any aletdbuiahie share under thet Ariel, 10 the extent not paid by Setor’s Executor, te Trustee shall use the income and principal of each saparaa set and ofeach Cstrbstale shor ander the situ, incluting sbsets passing drecty to any Trustea undor tis suet which Become port ofthe ‘residue, provid the same progotionete amount i token from each seperate ust and fiom each die dstibuteble shares, es folows: To pay the funeal expenses of Setar, the lgaly enforecabie debts {xcept for those debts which are ot yo dve, unless payment of such would fecitata distibution) and expenses oF administration of Setlor's estate, and al fodaral and stato taxes tn the nature of came, estate ihertance, sucedssion,trenster, itor ik taxes arising or owing an Settor'a deoth, texcept {or esieto and inheritance texas attitutable to the valve of epeoinive esses Inchiied fn Setto’s ‘grass estate for tax purnosas when Settor was gronted the power of appointment by someone other then Seron.No reimbursement fram, Settor's Executor or Administrator shall be required. Such ‘payments may be mado to the parson ante to or authorized to recokve and reel far ich ovine {akon upon a coiticate from Setdar’s Executor or admlattratorsteting the amount doo on poyeble, ‘The Trust shan n0 way be bound to InquteInto the legaity of amount of any pevanents so corttod ‘by Satter’ Executor or administretor. Payments made ia the bona tie baht thet they ero pursuont {ls Aree shal 20¢ be open to question ty enyone. 32 SCAN DATE 2012/09/31 19) Ain naan.° ° |. The Trustee may purchase and to retain as investments secures or other propery, eal ar par ‘sane, belonging to the estate of Setor, and to make foens to Setior's Executor or adahisratr on ‘such terms as the Trustee deoms acvsable. |G. Bxc99% tothe axzent within the scope ofthe authority of any Executor or administrator appointed ‘and serving for Setior’s estate, the Trasto is given the following poware. If thera is uncertainty about ‘the aaount of any tax of about whether the same must be pald, tho Trusteo shal! have the power t0 sete, compromise and pay such taxes, and jadgrants exercised in good faith shal be conclusive upon ‘af concerned. The Trusize shal have ebsoie dscretion with respect 10: the cholo oF the optional ‘alvation dato far velsatin of Seer’ estato for fedral estate tox purposes: whether ta take cori ‘deductions as Income tax doduetions or estote tax doductions on retums fed by the Tastee: the ink sian or exclusion (inthe evant of any uncertainty! of periculerproporty In Sotlar's oross estate for federal estate tax purposes; anc ing git tax rums which may be duo or Become duo. No adjust: ‘ment shall be made Between intorests of boneficerios bocousa OF the choleas made by tho Trustee 10 ‘compensate forthe consequences of any tex decisin or election ar af any investment or ediistra- ‘ive decision @xcapt those the Trustee shel make, exerelsing absonvte asreton. ARTICLEX ‘MISCELLANEOUS PROVISIONS A, Tustwa. ttfor any reason the Trustee or duly appointed successor Trustee cannot serve, the ‘JOHNSON COUNTY BANK, n.o.. Praia Vilage, Kensos, Is gpolated to serve as successor Trustee. "The reasons why a person cannot serve shal nel dooth, resignation, removal, ond ncompetancy of thet parcon. Incompetent es uséd herein shall mosn a parson whose obity to receive and evalvot i= fomnetion effectiely, or to communicate decisions, or Both, Is impaired ton extant thet the person ‘cannot exercise 2 reasonablo lovel of care with regard to tho duties of iste, or who cannot take any requste ections dso to involuntary detention or ciseppecranco. Inoompotoncy for these purposes shall be detomined by the carilication of one leaased physician soléctod by ® mary ofthe currant ‘incon beneficial (or thelr canservator or guardian I any Is ncompotent or a mina). No bodd or ther surety shel be required of any Trustee named harek. ©, Baxlnation at Tnuatea. Any Trusteo may reslen by delivering es written resignation 10 Setdor, and ‘pan Settior's death, to e mapvity in interest ofthe baneficares to wham Income may then be ped freunder (or the conservator, if ny. or the guardian of any micor or legally Incompetent ° ‘who may, without lblity to ony présont ar future benoficery of ony tust created ‘herounder, approve the accounts of end give a full and complete release and decharge to any resigned Tuste hereunder. (Provided, howaver, that a person wi i leo @ Trustee cannot Wve such release ‘and dacharge of his ar her own accounts). tt 1s the Intention of Settlor to vest n such persons the ‘power to determine far and on behalf of af benefceres the wiszom and propriety of ovina any such ‘spre, release and dschany, even thouah such porsons’ intarasts may possibly bo or become ad- ‘ers 10 those of exter benefiiries; end it shall be necessary to consult or to procure the Concurrence ‘af any remsindarman oF ather perty heving a vested or contingent or other knorest in any trast ‘rested hereunder; and any such epprovel, lease and disherge shall consiute 7). complete bat 10 ‘any aetion by any beneficlory to question ery transaction for the period covered by the account 30 oo ‘proved; and (21 0 val and effective reease with respect to any such treneoeton, with al te force ‘ond effect ofa decree of e court of eampetent jurisdiction jute seting such accounts end decheg= ‘ng such Truston from any and all Mabty fn respect t0 tho adminstravio of any such tusst fv euch ‘wansection. “No successor Trustoo shall be lable or responsibia Yor any ects oF defouls of ony 13:82 SCAN DATE 201208731 AUL 0166© ° ‘predecessor Tasstea or for any losses or oxpeases resulting fram or occesianed by anything done or ‘noplected 1 be done In the prior administration of eny trast erected, fany wrong doing shal be helt in ‘canfdence ws privBeged informatin), hereunder or be requied to Inqua ito or take any novice of ‘such prior administration. 2, BamavalLotThusiea. Setter, and upon Ser’ dsth, © maar intarst ofthe benetiires to sth come my hn Be at adr ta cnserator ay ote guard oon ior or Legal incompetent benetiey) of ay ist shal hve the power romove ony Teste, td Upon ‘00h removal. shal have the same power to release ond cischorge tbe Testes as gin under Secon C stove. . Aoapitment.of Successor Taistee, "any veconcy in the ofee of Trustee occur, Setler, and upon ‘Setvors dea0h and tn the event no successor Trostee has been previcsly designeted by Setter. @ ‘maj in interest ofthe baneticieries to whom income may then bo paid hereunder (or the conse Yvotor, if any, the guardian of any minor or laglly incorapetentbandtalany) oF any tase shal have the ‘Bower to appoint as successor Trustoo amy rancialnttution or othar anthy taving tst powers and ‘raving a combined toral equity capital of not less than Three Millon Dotars ($3,000,000.00), ‘wherevorfoceted. F, Aanouation, Neither the Trustee hereunder nor any successor shal be required to fte with any ‘court a natice of ls appotamant as Trustee, any oath of ofc, any laventory of assets, any enna ec counting or otherwise qualty under sts lew. The Trustee shal) once each year render {0 tbo ‘beneflciaiss (orto the Denefcirtes conservator or guardian, H any, orto the adult with wham such ‘person is ving) of any trust, an account of tho adiniisirdon ofthe tse. The Tastee shel at el! ‘ines keep adequate Books end records of each transection of tho tist which shal be medi avai {for inspection by any beneficiary for a beneficiary's representative) at any reasanebie tine. « “Any reference to # finance Inston wherovar usod in this tn she! (nclude not only that instntion but alsa ts successor and successors, any surviving corporation into which may be merged, any new corporetion resulting tram its cansolidetion with any other camporo- {tan or comporations, the successor and suacessers of any such surviving or new corporation nd! any. ‘Comoration to which the fiduciary business ofthat instuclom may at any tne be transfered. ‘*. Dusting wth hed Partios, No ono deattag with tha Tusteo nood inquire conceraing the valliy of ‘anything that the Trustee purports to do, or need see to the application of any maties pallor ony ‘ronarty transferred to or upon the order oF the Testes. 4, Quuabie Powter at Attomer, Notwithstending enything heraln to tho contrary, the: Successor Trustees, and each of tham, wile acting in total agreement and with the concent of ai! ihe emed ‘beneficiories harain, shal! ate nes heve tha power of atiomay to act for Neney Micols Auld, tn hor ‘name, lace, and stved in all particulars, to do al acts, deeds, meters, od things whatsoever in oF ‘about er estte, property, and alfars, orto concur with persons folnty Interested with herby dalag ‘aU ects, deeds, matters, and things hertin, ether portculorty or generally described, 2s fly sod of ‘Tecwally to of lconts and purposes es she could do on hey own If sa wire personally present and ‘Competent. The above deserbed powers is by way of tustiaton and aot by way of itstion esto any ‘acts tobe performed by the Successor Trustee. Giving and granting unto sald Svocessor Tastee ta fact ‘suant (0 authority herein conferred. This Power of Attoroey shall bo constrved as 2 durable power of lrzrney 2s defined by tho Uniform Probate Code and this power of attomey shel not be avfected by (ony lsat or incompacity ofthe principal, sal Rlancy Nichol Au. , Gaemnina Lave. Each rast herendor is 0 Kanses tt, made i thet stot, and is fo be govemed, ‘constnied and administered according to ts laws and shel contiwue to be governed, conetued td ‘diinistered even thaugh administered elsowhar, witin the United States o abroad, SCAN DATE 2a12/oevst Ie182 ain nae7S44 5 VIF ° © |W WITNESS WHEREOF, Nenoy Nichols Auld has executed and signed this instument, nd Trustee in then of or copa of tt ry cet, baat od se is hoaca on tie 3 devo pe 1588 srareorKausas. ie couvry oF somsoh 4 sc irncucrneen, aso tio 2 yo CORE 1885 bene, hut» Kay Poe hoor th County and Stored cas Hay Nios Roe, Se eds {owt a fb te cme panto eecsted te wih tenant af wis soe etd Trato ond ich pron dah ectowindd Ws esate tare |MUWITTNESS WHEREOF, | neve hereunto set my hond ond affixed my seal the dey and yoorlest ebove waiten, Notary Public - 7 . Ba, 798 wrgpem fren Aor (EQOTARYAS we EPS me Fact a Puente SCAN DATE 20IBroe/a1 19:32 AUL 0168‘SCHEDULE "AY 1. Allmy present or furaro interaste In any bank accounts, stocks] or bonds no matter how de. 2 Alley iterest in any roo estete no matter how tied, eluding ony cametery plots. 3. Allmy interest In any persons! property, auromabites, end other tangible and Intangible property ‘no:etterhow ted, whether hy my possosston or not. * 4. Ally interest in any pension oF te patices. & Any govemmental bones. ‘SCAN DATE 2012/06/31 13:82 AUL 0169NANCY NICHOLS AULD BEVOCABLE TRUST AGREEMENT 1, Nenoy Nichols Auld, of Leawood, Johnson County, Kanses 2s Grantor on Aaayet 6, 1994, horoby transfor to myself, as trustee, thé propery Identied in the attached Schedule of Property. ‘The trust property sa Identified any propery added to the trust in eecordance with the provisions of tis instrument, and all investments and reinvestmente thereof ("trust principal”) shall be held upon the following terms: : ARTICLE! T strument, as from time to time amended, may be designated the 7 “NANCY NICHOLS AULD TRUST AGREEMENT DATED. 1998," and the Initial trust hereby evidenced, as from time to time amended, may be designated tre nancy wcno.s auto trust paren aga £877 ABTICLE IL Commencing as of the date of this instrument and during my life, the ‘trustee shall administer the trust principal and any net income thereof as follows: ‘A. Thie trustes shall distribute to me or apply for. my benefit such amounts of net income and principal, even to the extent of exhausting principal, as the trustee believes desirable from time to time for my health, support in reasonable comfort, best Interests, and welfare, considering all circumstances and factors deemed pertinent by the trustee. Any undistributed net income shall be accumulated and added to principal, as from time to time determined by the trustee. 1 eermer “or 33 1 SCAN OME 2012/9079) 1 atasSAINI ° ° B, In addition, the trustee shall distribute to me of others such amounts of net income end principal as ! may from time to time direct in wrhing, except that if the trustee boliaves that | am unable to menage my business affairs properly because of advanced age, illness, ar other cause, the trustee may, In the trustee's sole discretion, decide not to honor my written direction, . The decision as to whether st any time or from time to time.1 am (i disabled for purposes of paragraph B of this Article or (li) unabie to act as trustee bocause advanced age, liness, or other cause has impaired my ability to transact, ordinary business shall be meds by my deughter, Nancy Anna Auld, with the concurring opinion of a physician who has examined or treated me within the prior three months. During any period in which | am determined to be disabled hereunder, ited from making withdrewals pursuant to paragraph B of this Art I may be pro by written instrument signed by that daughter and thet physicien and delivered to mo and to the trustee then acting hereunder. During any period in which | am determined to be disabled hereunder, | shall aiso be deemed to be deceased for all purposes of Article Vil of this instrument. ‘ABTICLE I Following my desih, the trustee shall pay out of the trust principal all (a) ‘my legally enforceable debts, Including debts owed by me to a trustee Individually, except debts which are an encumbrance on real property, {b} the expenses of my last illness and funeral, (c) the administration expenses payable by reason of my death, sores oate_aoresosiai 18:83 AUL 0195