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Transcript of DuPuy hearing

Transcript of DuPuy hearing

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REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES TRIAL COURT CAUSE NO. 09CV1183 MR. MARGARITA, L.P. vs. DUPUY & ASSOCIATES, ET AL ) IN THE DISTRICT COURT ) ) GALVESTON COUNTY, TEXAS ) ) 405TH JUDICIAL DISTRICT

_____________________________________________ HEARING ON MOTIONS _____________________________________________

On the 26th day of January, 2012, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Elizabeth Ray, Judge Presiding, held in Galveston, Galveston County, Texas. Proceedings reported by computerized stenotype machine.

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APPEARANCES Mr. David Bryant SBOT No. 00785730 Ms. Jessica Juren SBOT No. 24058577 5020 Montrose Blvd., 7th Floor Houston, Texas 77006 Telephone: 832-487-0880 Attorney for Plaintiff

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1 2 3 4 5 6 Greg Hughes By Mr. Bryant January 26, 2012

VOLUME 1 HEARING ON MOTIONS

PAGE VOL. Direct 14 v1 Cross V.Dire 1

Reporter's Certificate ........................... 25 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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INDEX OF EXHIBITS Use is indicated as follows: R - Record Only D - Demonstrative DESCRIPTION OFFERED ADMITTED USE 8 v1 8 v1 R

Register of Actions, Case No. 09-CV-1183 Defendant's Notice Order Setting Deposition and Rule 11 Agreement Emergency Motion to Stay Proceedings Pending Mandamus Letter from Kathleen Collins Letter from David Bryant Relevant Timeline Second Motion to Recuse and Disqualify Judge Shearn Smith Order Denying Defendant's Requestion for a Stay of Proceedings Memorandum Opinion Petition for Writ of Mandamus

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January 26, 2012 THE COURT: This is Cause No. 09CV1183,

Mr. Margarita L.P. Vs. Dupuy & Associates, and this is on a Motion to Recuse and Motion for Sanctions. So

would you please announce who is here and who is not. MR. BRYANT: Thank you, Your Honor. My

name is David Bryant, and I'm here on behalf of the plaintiff, Mr. Margarita. I have Jessica Juren here who We are present.

is also an attorney with my office. The defendant and the movant is not. THE COURT: courtroom witnesses or -MR. BRYANT: here in Galveston.

And are the people in the

Greg Hughes is an attorney

I might ask him a couple questions. I

But Julie Hatcher is also an attorney here in town. don't think -- she is just here to listen, I think. THE COURT: Well, you may or may not

know -- I don't know if you do or not -- but apparently the court received a letter today from Rachel Morales saying that the office is withdrawing and passing the hearing. Well, of course, they cannot pass the hearing.

The hearing is set as a result of the Motion to Recuse and it's set by the court. That's not an option. The

withdrawal, of course, is not in front of me because that would be, depending on the ruling on the Motion to

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Recuse, that would be in front of the regular judge. I can't rule on that. For the record purposes, the Motion to

So

Pass the Hearing is denied, and that puts the Motion to Recuse -- what I believe to be the Second Motion to Recuse -- although I believe they filed it as an Amended Motion to Recuse -- that puts that at play; and since there is no one here to promote that motion, that motion is hereby denied. That leaves, I believe, in front of me your Motion for Sanctions. MR. BRYANT: THE COURT: how I just proceeded? MR. BRYANT: THE COURT: Not at all. Because of the fact the other Yes, Judge. Do you have any objection to

side is not here, there is no lodged objection to the way that I have proceeded, so we will now take up your Motion for Sanctions. MR. BRYANT: Thank you very much, Judge.

I don't know if the court reporter has a few exhibit stickers? If the court doesn't mind, I will I didn't know how it was going

hand number my exhibits. to go today.

What I have done, Your Honor, is I have

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pulled from the record a few documents that I think exemplify the sort of conduct that we have been dealing with in this case from Day One. I have here as

Exhibit 1 that I'd offer into evidence, and Exhibit 1 is basically a printout -- may I approach, Your Honor? THE COURT: MR. BRYANT: Exhibit 1. Sure. I will tender to the court

That is a printout from the records of this

case from the publicly available docket sheet indicating the various documents that have been filed, motions, et cetera. And I've highlighted for the court's

information some various items indicative of the delay tactics and frivolity of the defendant's motions and the things that they have tried to do for the sole purpose of avoiding a single deposition. I have been attempting, Judge -- as I know you know because you read the whole file -- I have been trying to get a deposition of our defendant, a lawyer and now sitting judge in this county, for over eight months and every time I attempt to get that deposition, whether it's by court order, agreement or otherwise, I am met with something else. I'm met with a Motion to Quash. I'm met with a, quote, "notice." I'll mark this as Exhibit 2. a -- I'll offer Exhibit 1, Your Honor. There was

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 documents.

THE COURT: MR. BRYANT:

Exhibit 1 is admitted. Exhibit 2, Your Honor, is a

document that was filed by the defendants on August the 29th on the eve of the deposition that was ordered in this case for September the 1st of 2011. It says,

"Defendant's notice that plaintiff's pleadings are stricken per court order and notice that dismissal is now purely ministerial." This document was filed

because the defendant had a dispute about whether my pleadings had been amended properly in response to a special exceptions. That document was filed. I got a

letter on a fax saying that they are not going to appear at the deposition, so we come back to court. I'll mark Exhibit 3. offer Exhibit 2, Your Honor. THE COURT: MR. BRYANT: Exhibit 2 is admitted. Exhibit 3 is actually two Exhibit 3 -- I would

The first page is the order setting the This was a hearing

deposition of Christopher Dupuy.

held on September the 16th, 2011, as a result of the failure to appear for his deposition the second time, wherein the court orders that the deposition of Christopher Dupuy is to take place on the 6th of October, 2011, at 10:00 a.m. And then we have a Rule 11

agreement where the defendant agreed to pay $1,830 for

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attorney's fees and expenses in preparing the Motion for Deposition and Motion to Compel as a result of the defendant's failure to appear for two depositions ordered by the court. I would offer Exhibit 3. THE COURT: MR. BRYANT: Exhibit 3 is admitted. That document clearly

indicates, Your Honor, that the court for the second time has ordered a deposition -- actually, the third time -- second time, excuse me, has ordered the deposition of the defendant; and on the morning of or the afternoon before -- the morning of the October the 6th deposition, I get Exhibit 4 which is an Emergency Motion to Stay Proceedings Pending Mandamus. And I'd offer Exhibit 4. THE COURT: MR. BRYANT: Exhibit 4 is admitted. I also received at the same

time, Judge -- I think I probably have it here -- there is a letter from Ms. Collins, who is the counsel for the defendant, and in that letter she indicates that her client will not be appearing at the deposition because of the fact that they have filed -- here we go. exhibit -- well, I'll just show the court this. need to make it an exhibit, we will. This is If we

It's actually part

of a larger set of exhibits that I had for my Motion to

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Compel, etc. And in this letter she indicates that her client is being released to serve the citizens of Galveston County and, in other words, she is not going to have her client appear for the deposition that was clearly ordered by the court because she believes that the mandamus stays the proceeding. It clearly did not.

I sent her back a letter saying that that's going to be a problem. And I'm going to go I

ahead, and if we could, just get a copy of this.

apologize, Judge, for having this out of order, but I'm going to say this is Exhibit 5 and the next letter is Exhibit 6. And we will make a copy of this, if we I will tender it to the court and I will

could, Judge.

offer it into evidence pending a copy, if we can do that. THE COURT: MR. BRYANT: I just showed you. THE COURT: MR. BRYANT: Okay. If we go to the next page, Sure. Exhibit 5. That's the letter

Exhibit 6, this is the letter that I sent back to Ms. Collins explaining to her that her mandamus application did not stay the proceedings, that I intend to seek sanctions. And at the very end you notice I say

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specifically I'm going to send my court reporter down there. I don't want to come down there for no reason.

I'm going to send somebody to take a certificate of nonappearance. I don't get a response to that. I would offer Exhibit 6, also. THE COURT: MR. BRYANT: that letter. 5 and 6 are both admitted. I didn't get a response to

What she indicated to me was that her That morning of the

client was going to be released.

deposition I got a call from my court reporter saying that the defendant is here, what do we do; he wants to make a statement on the record. And so, as you might

imagine, I'm very upset about the fact that these games are being played with myself and my client and my staff, and so I basically indicate on the record that we disagree with how this was happening and we are going to seek sanctions, etc. So I filed a Motion for Sanctions.

And if you can imagine what's going to happen at the deposition, Judge, based upon what's going on in this case, I can't imagine a situation where the defendant is going to answer my questions correctly, properly, according to the rules. appointment of a special master. So I asked for the I asked for fees, a

Motion to Compel, appointment of a special master, and I set that hearing.

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In response -- what are we on, Exhibit 7? I've got Exhibit 7 here which is actually a timeline, Judge, that I took from the docket sheet. In response

to my Motion to Compel and for Sanctions that was set for November the 8th, 2011, I show up at this courthouse for a hearing and we receive a Motion to Recuse. We

don't receive a response, we receive a Motion to Recuse. As you know, we appeared for the hearing on that Motion to Recuse and the defendant failed to show up. I filed a response. We were here. You denied

that motion.

Then I filed a Motion to Show Authority. By the way, Exhibit 7, I'll offer

Exhibit 7, which is the summary of the relevant events in this case. THE COURT: MR. BRYANT: 7 is admitted. I also filed a Motion to Show

Authority because what the defendant in this case has been doing, even though he's a sitting judge and is not allowed to practice law by statute, he has been filing documents, motions, signing with permission as if he is acting on behalf of his counsel when, in fact, he's just practicing law. So I filed a Motion to Show Authority

and asked for a standing order that each time he does that, he has to pay a $500 fine, because I'm entitled to know who the counsel is so I can communicate with him.

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Well, all these motions get set again, and now we have this, Exhibit 8, which is the Second -- what I call -- it's not a First Amended, it's a Second Motion to Recuse because it states a different basis. Exhibit 8. 8. This is

And I know the court has seen this, Exhibit

I'd offer it into evidence. THE COURT: MR. BRYANT: Exhibit 8 is admitted. The only difference in the

first motion and the second motion, Judge, is that Judge Dupuy claims that he has filed a complaint against Judge Smith with the judicial committee because he hasn't acted however Judge Dupuy wants him to act. know what the basis of it is. I don't I

I have never seen it. I have no

don't even know if it's really been filed. clue.

So, fine, I filed my response and I asked for

sanctions because under Rule 18a if you determine that these motions have been filed for the purpose of delay and there is no substantial or significant cause for the motions, you can grant sanctions under Rule 250. I have Greg Hughes here, and I would like to ask him a couple questions, if I could, Judge. THE COURT: MR. BRYANT: swear him or not. That's fine. I don't know if you want to

He's an officer of the court. Do you mind?

THE COURT:

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

(Witness sworn) MR. BRYANT: The purpose of this

testimony, Judge, is so -- I think you need to hear how our defendant views recusals, because in this case he has filed two frivolous Motions to Recuse, didn't show up for either one of them. In the Mayville case, which

you have also been assigned to hear, in gathering information about my client's case, I did some research and found this case that was sealed so I filed my Motion to Unseal the Record and on the day of the hearing, Judge Trapp travels from Coldspring, Texas, all the way down here only to receive another Motion to Recuse, supposedly because he had spoken with the other attorney or something and said, Well, you don't have to come to some hearing, some kind of supposed ex parte communication that would violate the ethical rules, which he didn't. think. So you can see a pattern here, I

Now Mr. Hughes has a personal experience as well

that I wanted to share with the court. GREG HUGHES, having been first duly sworn, testified as follows: DIRECT EXAMINATION (BY MR. BRYANT) Greg, you can tell the court a

little bit about your practice, what you do here in Galveston or in Friendswood. I guess you're in

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Friendswood? A. I practice in Friendswood. I have a general I have been doing

practice, solo, primarily family law. that for about 21 years. Q. A. Q. County? A. Q. A. Yes. How are you familiar with him?

Are you familiar with Judge Dupuy -Yes. -- who is in County Court 3 here in Galveston

Well, I first really got to know him, I had a I went to mediation, and

case that was in his court.

someone told me that the -- my opposing counsel was dating him and I might want to look into a recusal. Q. A. Q. Who was that opposing counsel? It's Kathleen Collins. That's the same lawyer that's representing

Judge Dupuy in this case, right? A. Q. A. I believe so. Okay. So what did you do? Did you --

Well, first, I spoke with Kathleen a little bit She asked me if I was

on a break at the mediation.

going to try to recuse him; and I said, Do I need to? And she said, Well, we don't have a relationship. So I went ahead with the mediation. I didn't think Okay.

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anything more about it.

I heard later from other people

more persistent rumors and started looking into it and believed that they probably did have a relationship. So

that case was set for hearing and I prepared a Motion to Recuse but I got there first and told Kathleen, Look, I want to go talk to the Judge about the recusal. said, You don't need to do that. bunch of cases. She

He's already heard a He's

He's already turned them down.

already told me he's not going to recuse himself anymore. Q. A. He told her that? Told her that, yeah. I insisted that she come

back with me because I didn't want to talk to him ex parte. to him. It's actually the first time I'd ever spoken Finally she agreed to go. We went back in his

chambers; and I told him before I went on the record, I asked him if he would like to recuse himself because we perceived that there was a relationship between them. He said, No, file your motion. So I went and filed my

motion, brought him a courtesy copy and waited in the courtroom for a while. He came out for our hearing. He

announced that he read the motion, it had no basis in law or fact or we were going to go forward with the hearing. And then I reminded him that he couldn't do

anything after I filed the motion, and so he said fine.

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Q. A. Q. A.

Did he do something? He -Did he enter any orders at that point? No, he didn't enter an official order, but

Kathleen reminded him that the TRO in the case was expiring that day and she wanted to renew it. Q. A. The temporary orders on the child support? Yes. He said, I will do that. I reminded him

that he could not do that, that he didn't have authority to do that. He got very angry, started talking to my

client and told the client that the orders were expiring that day, but he had better continue following them and if he found out that he wasn't following them, that he would have problems when he came back to his courtroom. So we went on. Eventually I had the

recusal hearing in front of Judge Underwood; and in the meantime, I had found Mr. Dupuy's ex-wife, Adrienne Viterna, who was the first witness that was able to specifically testify that he did have a relationship with Kathleen because Kathleen had been picking their children up from school. They had been -- she had been They were visiting

keeping the children at her house. back and forth.

I mean, they were, you know, buddies

everywhere, not just in the courtroom. That was on a Thursday which was, I

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believe, August the 3rd.

The next morning I get a call

from Judge Dupuy who is in San Antonio at the Advanced Family Law Conference, and he's very angry. identifies himself. Q. A. Do you know what day that was? That was August 4th, 2011, at 11:58 a.m. He identified I He

wrote notes down as he called me. himself. testify. Q. A.

He asked me how I had gotten his ex-wife to

Did you recognize his voice? Oh, absolutely. I told him that I had heard

his ex-wife knew information and I called her and eventually subpoenaed her. He was very mad, told me it

was a very sleezy thing to do to get his ex-wife involved and went on and on about how inappropriate it was, what a sleezy attorney I was, one thing or another. And then he wanted to know who had told me about his ex-wife and who knew this information. And, of course,

I told him I didn't think those people would want me to share that, so I didn't tell him that. And then in closing, he told me that I was a sleezy attorney and reminded me that I would have to appear in his court again one day and that he would remember me when I did. I very, very clearly took that

as a clear implication that he intended to punish me for

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filing the motion and involving his ex-wife.

And since

the newspaper articles have come out about that, I have heard from many, many other people similar stories. Q. Have you filed a complaint with the judicial

committee? A. Q. A. I have. With the State Bar? Yes. Actually, no, I don't think I have with

the State Bar, just with the judicial committee. MR. BRYANT: from him. I don't have anything further

I wanted you to hear how this defendant views

recusals and his obligations under the law in the broad scheme of things because I think what we have here is a defendant who's never going to comply with anything this court orders and the only way to make them comply is to hit them in the pocketbook. do. It's the only thing we can

I don't think under National Tank I can ask you to I don't think I ask you to strike But you might feel

strike the pleadings. the pleadings.

Maybe I can.

uncomfortable doing that, and I don't want you to feel uncomfortable. I researched some of the case law you have been involved with, and I know that you know all about this. You know all about sanctions and how that works.

I'm asking for $7,500 which I don't think is too much to

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enforce the law in this courtroom, and so that's what I'm asking for. I want you to see -- here is something

else that's very telling, very telling about the purpose of this motion. And I think the court is very clear the

purpose of this motion is for the purpose of Judge Dupuy's motions. I don't know if the court knows, but

there is another mandamus that was filed a couple days ago in the First Court of Appeals. exhibits. THE COURT: MR. BRYANT: mark Exhibit 9, 10 and 11. Is it on this case? Yes, ma'am. I'm going to I have two more

If I could, Judge, I would

like to show you, Exhibit 9 is an order from Judge Shearn Smith dated October the 7th denying defendant's request for a stay of proceedings. THE COURT: MR. BRYANT: I'd offer Exhibit 9.

9 is admitted. Here is -- and this is in In that mandamus,

response to their first mandamus.

Your Honor, they ask the Court of Appeals to force Judge Smith to grant their summary judgment. ruling, to grant the summary judgment. Not to make a They summarily I would

denied it, and here is the order, Exhibit 10. offer it into evidence, dated October 28, 2011. THE COURT: MR. BRYANT: 10 is admitted.

That very clearly indicates

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that the Court of Appeals, on its own motion, without any response by myself or Judge Smith, denied that motion. Now we have the defendant filing the Motion to

Recuse asking this court to prevent Judge Smith from doing anything else in this case. receive another mandamus. Two days ago I

It's Exhibit 10, Your Honor. Excuse me.

I'll offer Exhibit 10 -- 11. THE COURT: MR. BRYANT:

Admitted. Not only is that mandamus not

a proper mandamus because it has no official transcript from this court or the district clerk, it's just merely pages out of someone's file at their office, that mandamus also seeks to have Judge Smith do something. don't think they can have it both ways. I think it I

makes it very clear, Judge, that this Motion to Recuse, the sole purpose of it is to delay the inevitable, which is the deposition of Judge Dupuy. Now, I think I've shown what I need to show under Rule 18a. with this case, Judge. I have spent many hours dealing In my motion I indicate that my

time dealing with just the recusal -- I'm not asking for fees on the whole case, which maybe I should, and I will at some point -- but I have -- and I'll represent to the court as an officer of the court -- I don't know if you need to swear me or not, Your Honor -- but I can tell

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you that I have spent at least 15 hours and my normal hourly rate is $350 an hour. for 18 years. I have been practicing law

I have tried a lot of cases, and I think

that's a reasonable rate for me in this community and that these services were necessary because of what's been happening in this case. In order for me to get

compliance with the Rules of Procedure, I've had to go through these hoops created solely by the defendant, not created by me. That doesn't include the time -- and That does not include the

that total would be $5,250.

time of my associate lawyer, Jessica Juren, who is here today. It doesn't include the time of my paralegal

which I normally bill at a hundred dollars an hour. Ms. Juren, I normally bill at $200 an hour. a lot more time involved in this. here is low. Judge, I'm not getting paid for this case. I told my client a long time ago, it's not fair for me to charge him any more. He can't afford it. And based So there is

I think my estimate

upon how this case has been handled, I said, You know what, I'm going to do this. I'm just going to do it.

But that doesn't mean I shouldn't get my fees for what I have had to go through. Just so the court knows, my

client doesn't owe me this money, but I think the court should sanction the defendant for what I have had to do

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and what my staff has had to do needlessly and in clear violation of the rules. THE COURT: motion. Counsel, I have read your

I don't have it in front of me -- or I do have

it in front of me, but you can tell me faster than I can find it. Is the sanction that you have asked for -- is

the only sanction that you have asked for is the payment of this $7,500? MR. BRYANT: that's all I'm asking for. Yes. Your Honor, to you,

When I go back -- when this

case goes back to Judge Smith, I will be asking to reset all those other motions where I'm asking for a lot more. THE COURT: My recollection from our last

hearing was that you had not reset the deposition of Judge Dupuy? You were -MR. BRYANT: that. We are still trying to get

That was part of my motion that got reset in

response to which we received these Motions to Recuse. THE COURT: The case had been -- my

recollection, the case had been moved to maybe a July trial setting? MR. BRYANT: That was an error. I don't

know how that happened, but it's been set to April. THE COURT: MR. BRYANT: April? Yes, ma'am. April the 16th,

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I think, is the docket call and then the 23rd. might know. THE COURT:

She

And the next hearing that's

set for this case for any matter, is there one set? MR. BRYANT: stopped the works. I have an order, Judge, if you care to look at it. I would ask this court to enter the order There is not because this

for sanctions jointly and severally against counsel and the defendant because it's clear that either Ms. Collins is allowing her client to use her bar number and sign her name with permission or vice vera. what they are doing. I don't know

But they are both creating this

problem in the case, and I think it should be jointly and severally. THE COURT: motion. MR. BRYANT: THE COURT: Thank you. And awards $7,500 jointly and Okay. The court grants your

severally against both Judge Dupuy and his counsel to cover attorney's fees and costs. This payment is to be made within 10 days of this date, which I believe to be the 26th of January. Am I right, or is it the 25th? MR. BRYANT: The 26th.

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THE COURT:

So 10 days from today with the

possibility of non-payment may result in, depending on what Judge Smith decides to do, but it may result in a complete striking of the pleadings and other appropriate sanctions. So I put that on the record just to make

sure that the record is clear that this is an interim step, but there could be more to come depending on Judge Smith's rulings -MR. BRYANT: THE COURT: Thank you very much. -- for sanctions. Again, the

So I have signed that order. Motion to Recuse is denied.

The court considers that to

be a second motion, not an amended motion, and that motion is hereby denied. MR. BRYANT: THE COURT: Thank you very much. You're welcome.

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STATE OF TEXAS COUNTY OF GALVESTON

I, Tamra M. Parks, Deputy Official Court Reporter in and for the 405th District Court of Galveston, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me. I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties. I further certify that the total cost for the preparation of this Reporter's Record is ________ and was paid/will be paid by ___________________.

Tamra M. Parks, CSR Texas CSR 167 Deputy Official Court Reporter 405th District Court Galveston County, Texas 600 59th Street Galveston, Texas 77550 Telephone: 713-502-6833 Expiration: 12/31/2012

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