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Filing # 88703392 E-Filed 04/29/2019 06:06:47 PM
IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT,
IN AND FOR ALACHUA COUNTY, FLORIDA
RICHARD M. WHITE, ESQ., as Successor
Trustee of The Michel K. and Margaret D. Ochi CASE NO.: 01-2015-CA-4330
Revocable Trust Agreement; UNIVERSITY
OF FLORIDA FOUNDATION, INC. and
UNIVERSITY OF MARY WASHINGTON
FOUNDATION,
Plaintiffs,
Vv,
SHANNON L. SMYTH and BANK OF
AMERICA, N.A.,
Defendants.
DEFENDANT’S NINTH NOTICE OF FILING SUMMARY JUDGMENT EVIDENCE
Defendant, Shannon Smyth, by and through undersigned counsel, hereby give notice of
filing the following evidence to support Defendant’s Amended Response to Plaintiffs’ Motion for
Partial Summary Judgment on Counts IV and V of the Second Amended Complaint and Cross
Motion for Summary Judgment on Plaintiffs’ Second Amended Complaint and Defendant’s First
Affirmative Defense and Incorporated Memorandum of Law filed on April 29, 2019, and set for
hearing on May 20, 2019:
1 Deposition Transcript of Charles Gadd dated July 19, 2018, attached as Exhibit A.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY on April] q , 2019, I filed the foregoing with the Clerk of the
Court using Florida’s E-Portal System, which will provide electronic notice to the following:
Richard White, Esquire, 5303 S.W. 91‘ Drive, Suite 200, Gainesville, FL 32608, rmw@gat net
and John Cole, Esquire, Jason Van Lenten, Esquire, Christine Sweet, Esquire, 225 Water Street,
"2015 CA 004330" 88703392 Filed at Alachua County Clerk 04/30/2019 08:15:00 AM EDT
Suite 1750, Jacksonville, FL 32202, jcole@gunster.com, jvanlenten@gunster.com,
csweet@gunster.com, wnystrom@gunster.com,
IStEr.COM, sjustice@gunster.com.
Sster.cOm.
SALTER FEIBER, P.A.
Y
Jenni fentdees Lester
Florida Bar Number: 0945810
Bradford T. Willard
Florida Bar Number: 0062827
Star M. Sansone
Florida Bar Number: 113103
3940 N.W. 16th Blvd., Bldg. B
Gainesville, FL 32605
Telephone: (352) 376-8201
jenniferl@salterlaw.net
s@s
ah net
annond@:@:
Shannong lterlaw.net
Attorney. for Defendant, Shannon Smyth
IN THE CIRCUIT COURT OF THE
EIGHTH JUDICIAL CIRCUIT, IN
AND FOR ALACHUA COUNTY, FLORIDA
CASE NO.: 01-2015-CA-4330
DONALD M. SHEPPARD, as Trustee
of the Michael K. and Margaret D.
Ochi Revocable Trust Agreement;
UNIVERSITY OF FLORIDA FOUNDATION,
INC. and UNIVERSITY OF MARY WASHINGTON
FOUNDATION,
Plaintiffs,
vs.
SHANNON L. SMYTH and BANK OF AMERICA,
10
Defendants.
1 /
12 DEPOSITION OF: CHARLES M. GADD
13 DATE: July 19, 2018
14 TIME: 10:02 a.m. ~ 12:15 p.m.
15 PLACE: 18 NW 33rd Court
Gainesville, Florida
16
REPORTED BY: Leah Underwood
iy Notary Public
18
19
20
ai
22
23
24
25
SCRIBE ASSOCIATES, INC.
a
GAINESVILLE OCALA LAKE CITY STARKE
EXHIBIT
1 APPEARANCES:
Clayton-Johnston, PA.
BY: Leonard Ireland, dr., Esquire
18 N.W. 3rd Court
Gainesville, Florida 32607
Gunster
BY: Jason
Van Lenten, Esquire
Christine Sweet, Esquire
225 Water Street, Suite 1750
Jacksonville, Florida 32202
Appearing on behalf of the Plaintiffs
8
Dell Salter, P.A.
BY: Jennifer Cates Lester, Esquire
Star M. Sansone, Esquire
0 3940 NW 16th Boulevard, Building B
Gainesville, Florida 32605
aL
Appearing on behalf of Defendant Shannon Smyth
12
2
14
15
17
18
19
20
21
22
23
24
25
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCALA LAKE CITY STARKE
INDEX
Page
TESTIMONY OF CHARLES M. GADD:
DIRECT EXAMINATION - By Ms. Lester
4 CROSS-EXAMINATION - By Mr. Van Lenten 55
REDIRECT EXAMINATION - By Ms. Lester 61
DEFENDANT'S EXHIBITS MARKED FOR IDENTIFICATION
Defendant's Exhibit No. 1
(Letter)
Defendant's Exhibit No. 2
(File - Margaret Ochi)
10
Defendant's Exhibit No. 3
al (File - Max Sheppard)
12 Defendant's Exhibit No. 4 12
(Revocable Trust Agreement)
13
Defendant's Exhibit No. 5 12
14 (First Amendment to Trust)
is
16
ERRATA PAGE 63
1
NOTIFICATION LETTER 64
18
CERTIFICATE OF OATH 65
ig
CERTIFICATE OF REPORTER 66
20
>
>22 STIPULA c IONS
23 It is hereby agreed and so stipulated by and
between the parties hereto, through their respective counsel,
24 that the reading and signing of the transcript are expressly
reserved by the Deponent.
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCALA LAKE CITY STARKE
COURT REPORTER: And af
if you'll raise your right
hand, I'll swear you in.
THE WITNE (Complies.)
COURT REPORTER: De you swear that the testimony
you are about to give will be the truth, the whole truth
and nothing but the truth?
THE WITNESS: I do.
COURT REPORTER: Thank you.
THEREUPON:
10 CHARLES M. GADD,
i was called as a witness and, after having been duly sworn,
12 was examined and testified as follows:
13 DIRECT EXAMINATION
14 BY MS. LESTER:
15 Q. Mr. Gadd, have you ever had your deposition taken
16 before?
17 A (Witness indicating).
18 Q Well --
A Yes.
2¢ Q -- you violated the first rule. Let me just remind
21 you, then that it's important for you to verbalize your
22 answers. And although uh-huh and huh-uh are verbal answers,
they don't type up very well. So when you say that -- and
24 you probably will, because everybody does -- I will just say,
28 is that yes or is that no so we have a clear record.
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCALA LAKE CITY STARKE
Okay?
A Yes.
Q And if I ask you questions that don't make any
sense, I’m not trying to confuse you. I probably have
confused everybody. So just ask me to rephrase my question;
T'll do that.
Okay?
a A Yes.
Q And if you answer my question, then I'm going to
10 assume that you understood it.
il All right?
12 A Yes.
13 Q. Could you please state your full name for the
14 record?
is A Charles M. Gadd, Jr.
16 Q And what's your current business address?
1 A 3 -- excuse me. 18 Northwest 33rd Court.
18 Q Have you reviewed any documents for your
19 deposition?
20 A Yes.
2. Q What have you reviewed?
b5 This file and this file.
23 Okay. And what else?
24 A That's it.
25 Have you spoken to anybody about your deposition?
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCALA LAKE CITY TARKE
Mr. Ireland.
Anybody else?
Not to my knowledge. We didn't speak when --
THE WITNESS: What's her name --
MR. IRELAND: I can't answer any questions.
THE WITNESS: ~- the lawyer that was representing
the University of Florida?
MR. TRELAND: Shannon }
Mil ler.
BY THE WITNESS:
10 A Shannon Miller. We had an interview several months
back, but I don't think that I was under deposition or aware
12 of deposition then.
13 BY MS. LESTER:
14 Q And what was the substance of that conversation?
is A Review those files and notes.
L16 Q Okay. Let's -- you have two files that you've
handed me. One is Margaret Ochi estate planning and one is
18 Max Sheppard file.
A It's on the summary administration I believe.
20 MS. LESTER: Okay. Let's go ahead and attach the
21 Margaret Ochi estate planning file as Exhibit 2 and the
22 file titled Max Sheppard as Exhibit 3 to your
i
23 deposition.
24 (Thereupon, Defendant's Exhibits Nos.
2525 1, 2 & 3 were marked for identification
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCALA LAKE CITY STARKE
BY MS. LESTER:
Q. Do you have any other files in your office that
relate in any way to Margaret Ochi?
A Mr. Felder's original file from 2002. I believe
that was -~ and the estate file -- excuse me. The estate
file set up for Mrs. Ochi's estate. I think that's it.
Q Do you have other than the notes made by Mr. Felder
in 2002, do you have in this office or taken by anybody at
Clayton-Johnston, any notes regarding Mrs. Ochi's estate
10 planning between 2002 and 2015?
Li A Don't know. T have notes regarding as early as
2013 in that file.
Q Okay. In this estate planning file?
14 A Uh-huh.
16 Yes?
L16 Yes.
a7 Q. Okay.
18 Sorry.
19 That's okay.
267 The notes made on the outside of this file, who
21 made those?
22. A I don't know. Let me see
23 And that's Exhibit 2 that I'm handing you back.
24 These are all mine.
255 The ones running down the ~-
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCALA LAKE CITY STARKE
1 A. Left side? The notes on the first decal, I would
guess would be Kay, my secretary updating addresses.
Original documents in safe, I'm not sure. That could have
been Kay, since it was a trust and a first amendment. And
new case number, I don't know who wrote that.
Q. And what about this file related to Mr. Ochi's
estate?
A. Those are all my notes.
Q- This file contains only looks like pleadings
10 related to the summary administration and the Ameritrade
il statement.
12 Were there any notes or billings done as a result
13 of the work done on this file?
14 A. ET don't think so.
15 Q. There was not a bill generated for this work?
16 A. Let me see. T dontt think so. But I'd had have to
look in the other files to see iene
-
is MR. TRELAND: I think I can help you out a little
19 bit. I believe that possibly was billed through the
20 trust, because i billed Dr. Sheppard through the trust.
al That may have been subsumed in that. We can find that
out, if you would like.
MS. LESTER: Okay.
2 24 BY MS. LESTER:
29 Q. And you didn't make any notes or handwritten notes
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCALA LAKE CIT TARKE
9
or computer -- some people keep all of their notes in a
computer file. You did not do that in this --
A I do not do that.
Q. There is a number for Larry Christian on here.
What's that for?
6 A. Larry Christian was, to best of my knowledge, an
investment counselor with somebody who handled the Ochi
investments.
9 Q. Have you discussed this case with him at all?
10 A. Don't believe I've discussed the case. I've
al discussed what does he have by one or two telephone calls
12 when Max Sheppard and I were trying to put together some kind
i3 of inventory of the assets in the trust.
14 Q. Any conversations with him since then?
is A. With Larry Christian?
16 Q Yes, sir.
Li A. No.
1 Q. Okay. What -~- what is your current employment?
i9 As I'm vice president for Clayton-Johnston P.A.
20 Q. And you're an attorney?
ai A. Yes.
22 Q. For how long?
A. 47 years.
24 Time flies.
25 Do you have any board certifications?
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCALA LAKE CIT STARKE
10
A No.
2 Q. Do you have experience or special training in the
fieid of determining capacity?
A. No. Only experience is life experience.
Q. Did you ever meet Dr. chi, Michael Ochi?
A I'm not sure. When the amendment to the trust was
done, I think I was somehow involved, but we had a -- an
associate named Karel Ourednik or something iike that who rrT
believe prepared the amendment to the trust And they could
10 have talked to me about that, but I don't -- I don't have any
il vecollection of it.
1»2 Q. Mr. Felder did the original trust in 2002?
313 A. Uh-huh.
4 Q. And then there was ~~ do you remember when that
15. original trust was completed?
16 A. I just believe that L saw dates in 2002.
1 Q.- Okay. Then there was an amendment in December of
18 2002?
19 A. Right.
20 Q Okay. Did you have any role in drafting that
aL amendment?
22 A. I don't have any recollection of that.
23 Q. Okay. Do you have any knowledge about Dr. Ochi's
24 reasons for choosing the beneficiaries that he did?
25« A Which beneficiaries are you talking about?
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCAL LAKE CITY STARKE
11
Q Any of them.
2 A I think Dr. Ochi chose the University of Florida
3 because he worked there and had a good feeling for the
4 University of Florida. Mary Washington, I didn't know
5. anything about.
6 Q Okay. How did you get the information about the
University of Florida?
8 A I think that Dr. Ochi -- let's see. I think I
9 noted a letter from Dr. Young to Dr. Ochi --
10 Q And --
A -- saying thank you.
12 Q -- you noted that in -- during what time period?
13 A. In doing the -- the work that Mrs. Ochi had talked
14 to me about.
1s Q When?
16 A Would have been in "13; 2013.
17 Q All right. Just so that we can have the documents
18 available, that's the original trust?
19 A Okay.
20 Q And you were not involved in drafting that
2 document?
222 A No
23 MS LESTER: All right. We'll attach that as
24 Exhibit 4
(Thereupon, Defendant's Exhibit Number
SCRIBE ASSOCIATES, INC,
GAINESVILLE OCALA LAKE CITY TARKE
12
4 was marked for identification)
2 BY MS. LESTER:
Q And then this is the first amendment. Is that
4 notarized by the associate you've mentioned?
A Uh-huh. Yes.
Q Okay. Do you know what precipitated the amendment?
No.
We can attach that as 5.
(Thereupon, Defendant's Exhibit Number
10 5 was marked for identification)
BY MS. LESTER:
12 Q Do you recall having any discussions with Dr. Ochi
13 about Mary Washington University?
1g A No. I don't remember having any discussion with
1s Dr. Ochi.
16 Q At all?
1 A Right.
18 Q Okay. So you didn't -~ you never had any
19 discussions with him about Dr. Sheppard either?
20 A I don't remember having any discussions with Dr.
21 Ochi
227 Q Okay. Did you ever have any discussions prior to,
23 say, 2010 with Mrs. Ochi?
24 A I don't recall any.
Q Okay.
SCRIBE ASSOCIATES, INC
GAINESVILLE OCALA LAKE CITY STARKE
13
Let me see that file, please.
No.
You said no?
A Right.
Q. Okay. After 2010, ‘did you at some point become
6 aware that Dr. Ochi had been arrested?
A I was aware of that. I think Max Sheppard called
8 me about that.
About when?
10 I don't have any independent recollection.
di Did you make any notes of that?
125 I don't think so.
13 Q Why did he call?
14 A I think Max was asking for some kind of assistance
15 as to what kind of authority he might have in regards to
16 dealing with their situation, since he apparently was taking
care of them or had been asked by Dr. Ochi to take care of
18 things for him. And he knew that we had prepared the trust.
19 And Mr. Felder was gone. And it fell me to try to answer his
20 question.
al Q Did Dr Ochi ever execute a power of attorney?
22 A I don't -- I don't know.
You didn't have one on file?
24 No.
26 Did Dr. Sheppard have the ability to take over as
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCALA LAKE CITY STARKE
14
successor trustee that at point?
A I think that -- well, you're asking me to interpret
the trust, but I think the trust provides that both Mrs. Ochi
and Mr. Ochi were the trusties. And I think she was the
successor, And as far as rT knew, at the time he talked to me
about Dr. Ochi's arrest she was there.
Q Okay. To your knowledge, did Dr. Sheppard attempt
to take over as successor trustee at the time or shortly
after Dr. Ochi was arrested?
10 A Not to my knowledge. I think the trust requires
il letters from doctors or something to that effect before a
12 successor trustee can be in play.
13 Q Did Mrs. ~~ do you know whether Mrs. Ochi ever
a4 attempted to get those on behalf of Dr. Ochi?
4s A No.
16 Q Do you know if Dr. Sheppard did?
7 No.
18 Did you know what Dr. Ochi's medical diagnosis were
19 in 2012?
20 No.
2u Did you know what his psychiatric or psychological
22 diagnosis were then?
23 A No. All I knew was what was in the newspaper and
24 what Mr. Sheppard described had happened.
25 Q Did -- did Mr. Sheppard tell you or did you
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCALA LAKE CITY STARKE
a5
1 otherwise know that he had been Baker Acted; that Dr. Ochi
2 had been Baker Acted?
A I heard that. Yes.
44 Q Do you know how that was resolved?
A I think he was released.
6 Q Did you do any other work to assist Dr Ochi after
that arrest and Baker Act in 2012?
A No. I don't believe so.
Q Did you do anything else to assist Dr. Sheppard
10 with that situation related to Dr. Ochi's arrest and Baker
Li Act in 2012?
12 A 2013, they -- Dr. Sheppard and Mrs Ochi came in
i3 and talked to me about a power of attorney for her.
14 Q And would that be contained in this file that says
18 durable power of attorney?
16 A That's it.
WW Q Okay.
18 A That's what I prepared.
13 Q Okay. With regard to Dr Ochi's competence, do you
20 know if he was ever diagnosed with Alzheimer's?
al A No.
22 Q Okay. Do you -~ do you know where he went to live
23 after the -- he was released from the Baker Act and from
24 jail?
A IT thought they lived at The Atrium.
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCALA LAKE CITY STARKE
16
Q Okay. And you think that's where he went back?
5 A Yes.
3 Q Okay. When was the power of attorney drafted for
4 Mrs. Ochi?
5 A. In 2013; April or May of 2013. Yeah.
6 Q Are the notes related to that in this other file?
A Yeah.
g Q Okay. What precipitated the draft of the power of
attorney?
10. A. Conference with Dr. Sheppard and Mrs. Ochi and
il saying, you know, to the best of my recollection, if
2 something happened to me, would -- would he have the right to
13 or the capability of taking care of things.
i4 Q Was that a telephone conference or an office
1815 conference?
16 A Office conference, tI believe.
17 Q Who made the appointment for the office conference?
18 A Don't know.
ig Q Who -- how would that office conference have gotten
26 on your calendar?
21 A Maybe a telephone call to me. Let me see that
>
22 Q This looks like everything in two thousand --
22 Keep going.
24 Okay. Is this in reverse chronological order?
2 The oldest is on there first.
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCALA LAKE CITY STARKE
WW
1 Q All right. So in February 7th, it looks like
2 February 7th of 2013?
3 A Uh-huh.
4 Q What -- what does that note reflect?
A Telephone call from Mr. Sheppard: Try to find the
6 file of original documents and call Sheppard and have
7 conference.
Q So Dr. Sheppard called your office?
A February 7, 2013.
10 Q Okay. Then what happened?
LL A L[ think that they were involved in selling a condo.
12 I think they had a condo at Gaineswood and they were trying
13 to sell that. The Ochis were trying to sell that. And Ron
Carpenter was closing, and his office called asking for
copies of the trust in order to convey title. Since I have
16 correspondence in here from Ron's old secretary -- and that
L might have been why Dr Sheppard called, because he was
18 helping them at that time.
19 Q Do you know whether Dr. Ochi was still alive at
26 that point?
2. A I believe so. Dr. Ochi died on April 13th.
22 Is that correct?
23 Of "13?
24 Let me see, Where's the file? April 19, 2013, he
25 died. Wait a minute. No. April 13, 2013, Dr. Ochi died.
SCRIBE ASSOCIATES, INC.
GAINESVILLE OCALA LAKE CITY STARKE
18
So he would have been alive at that time in February of 2013.
2 Q. And when Dr. Sheppard called, was he seeking a
power of attorney initially or was that simply related to the
closing?
A. My guess, it was related to the closing, since I
6 don't have any notes in regards to a power of attorney. Tr
don't think I had any notes related to a power of attorney
until April of 2013.
Q. April what?
10 A. I have notes of a7 conference April 30, 2013.
di Q. So shortly after Dr. Ochi died?
12 A. Right. That conference says, find Dr. Ochi's
13 original will; file it. Mr. Sheppard had it He said he
114 would file it along with a copy of the death certificate.
15 Mr. Sheppard would let me know if there are any assets in Mr.
16 Ochi's name alone. Discussed durable power of attorney for
117 her to Mr. Sheppard. Then the final note was, do one.
18 Q. Was that result of a phone conference or an office
ig conference with Dr. Sheppard?
20 A. Office conference.
ai Q. And who was present there?
2 A. I'm assuming just Dr. Sheppard, since
Preview
Filing # 88703392 E-Filed 04/29/2019 06:06:47 PM IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT, IN AND FOR ALACHUA COUNTY, FLORIDA RICHARD M. WHITE, ESQ., as Successor Trustee of The Michel K. and Margaret D. Ochi CASE NO.: 01-2015-CA-4330 Revocable Trust Agreement; UNIVERSITY OF FLORIDA FOUNDATION, INC. and UNIVERSITY OF MARY WASHINGTON FOUNDATION, Plaintiffs, Vv, SHANNON L. SMYTH and BANK OF AMERICA, N.A., Defendants. DEFENDANT’S NINTH NOTICE OF FILING SUMMARY JUDGMENT EVIDENCE Defendant, Shannon Smyth, by and through undersigned counsel, hereby give notice of filing the following evidence to support Defendant’s Amended Response to Plaintiffs’ Motion for Partial Summary Judgment on Counts IV and V of the Second Amended Complaint and Cross Motion for Summary Judgment on Plaintiffs’ Second Amended Complaint and Defendant’s First Affirmative Defense and Incorporated Memorandum of Law filed on April 29, 2019, and set for hearing on May 20, 2019: 1 Deposition Transcript of Charles Gadd dated July 19, 2018, attached as Exhibit A. CERTIFICATE OF SERVICE I HEREBY CERTIFY on April] q , 2019, I filed the foregoing with the Clerk of the Court using Florida’s E-Portal System, which will provide electronic notice to the following: Richard White, Esquire, 5303 S.W. 91‘ Drive, Suite 200, Gainesville, FL 32608, rmw@gat net and John Cole, Esquire, Jason Van Lenten, Esquire, Christine Sweet, Esquire, 225 Water Street, "2015 CA 004330" 88703392 Filed at Alachua County Clerk 04/30/2019 08:15:00 AM EDT Suite 1750, Jacksonville, FL 32202, jcole@gunster.com, jvanlenten@gunster.com, csweet@gunster.com, wnystrom@gunster.com, IStEr.COM, sjustice@gunster.com. Sster.cOm. SALTER FEIBER, P.A. Y Jenni fentdees Lester Florida Bar Number: 0945810 Bradford T. Willard Florida Bar Number: 0062827 Star M. Sansone Florida Bar Number: 113103 3940 N.W. 16th Blvd., Bldg. B Gainesville, FL 32605 Telephone: (352) 376-8201 jenniferl@salterlaw.net s@s ah net annond@:@: Shannong lterlaw.net Attorney. for Defendant, Shannon Smyth IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT, IN AND FOR ALACHUA COUNTY, FLORIDA CASE NO.: 01-2015-CA-4330 DONALD M. SHEPPARD, as Trustee of the Michael K. and Margaret D. Ochi Revocable Trust Agreement; UNIVERSITY OF FLORIDA FOUNDATION, INC. and UNIVERSITY OF MARY WASHINGTON FOUNDATION, Plaintiffs, vs. SHANNON L. SMYTH and BANK OF AMERICA, 10 Defendants. 1 / 12 DEPOSITION OF: CHARLES M. GADD 13 DATE: July 19, 2018 14 TIME: 10:02 a.m. ~ 12:15 p.m. 15 PLACE: 18 NW 33rd Court Gainesville, Florida 16 REPORTED BY: Leah Underwood iy Notary Public 18 19 20 ai 22 23 24 25 SCRIBE ASSOCIATES, INC. a GAINESVILLE OCALA LAKE CITY STARKE EXHIBIT 1 APPEARANCES: Clayton-Johnston, PA. BY: Leonard Ireland, dr., Esquire 18 N.W. 3rd Court Gainesville, Florida 32607 Gunster BY: Jason Van Lenten, Esquire Christine Sweet, Esquire 225 Water Street, Suite 1750 Jacksonville, Florida 32202 Appearing on behalf of the Plaintiffs 8 Dell Salter, P.A. BY: Jennifer Cates Lester, Esquire Star M. Sansone, Esquire 0 3940 NW 16th Boulevard, Building B Gainesville, Florida 32605 aL Appearing on behalf of Defendant Shannon Smyth 12 2 14 15 17 18 19 20 21 22 23 24 25 SCRIBE ASSOCIATES, INC. GAINESVILLE OCALA LAKE CITY STARKE INDEX Page TESTIMONY OF CHARLES M. GADD: DIRECT EXAMINATION - By Ms. Lester 4 CROSS-EXAMINATION - By Mr. Van Lenten 55 REDIRECT EXAMINATION - By Ms. Lester 61 DEFENDANT'S EXHIBITS MARKED FOR IDENTIFICATION Defendant's Exhibit No. 1 (Letter) Defendant's Exhibit No. 2 (File - Margaret Ochi) 10 Defendant's Exhibit No. 3 al (File - Max Sheppard) 12 Defendant's Exhibit No. 4 12 (Revocable Trust Agreement) 13 Defendant's Exhibit No. 5 12 14 (First Amendment to Trust) is 16 ERRATA PAGE 63 1 NOTIFICATION LETTER 64 18 CERTIFICATE OF OATH 65 ig CERTIFICATE OF REPORTER 66 20 > >22 STIPULA c IONS 23 It is hereby agreed and so stipulated by and between the parties hereto, through their respective counsel, 24 that the reading and signing of the transcript are expressly reserved by the Deponent. SCRIBE ASSOCIATES, INC. GAINESVILLE OCALA LAKE CITY STARKE COURT REPORTER: And af if you'll raise your right hand, I'll swear you in. THE WITNE (Complies.) COURT REPORTER: De you swear that the testimony you are about to give will be the truth, the whole truth and nothing but the truth? THE WITNESS: I do. COURT REPORTER: Thank you. THEREUPON: 10 CHARLES M. GADD, i was called as a witness and, after having been duly sworn, 12 was examined and testified as follows: 13 DIRECT EXAMINATION 14 BY MS. LESTER: 15 Q. Mr. Gadd, have you ever had your deposition taken 16 before? 17 A (Witness indicating). 18 Q Well -- A Yes. 2¢ Q -- you violated the first rule. Let me just remind 21 you, then that it's important for you to verbalize your 22 answers. And although uh-huh and huh-uh are verbal answers, they don't type up very well. So when you say that -- and 24 you probably will, because everybody does -- I will just say, 28 is that yes or is that no so we have a clear record. SCRIBE ASSOCIATES, INC. GAINESVILLE OCALA LAKE CITY STARKE Okay? A Yes. Q And if I ask you questions that don't make any sense, I’m not trying to confuse you. I probably have confused everybody. So just ask me to rephrase my question; T'll do that. Okay? a A Yes. Q And if you answer my question, then I'm going to 10 assume that you understood it. il All right? 12 A Yes. 13 Q. Could you please state your full name for the 14 record? is A Charles M. Gadd, Jr. 16 Q And what's your current business address? 1 A 3 -- excuse me. 18 Northwest 33rd Court. 18 Q Have you reviewed any documents for your 19 deposition? 20 A Yes. 2. Q What have you reviewed? b5 This file and this file. 23 Okay. And what else? 24 A That's it. 25 Have you spoken to anybody about your deposition? SCRIBE ASSOCIATES, INC. GAINESVILLE OCALA LAKE CITY TARKE Mr. Ireland. Anybody else? Not to my knowledge. We didn't speak when -- THE WITNESS: What's her name -- MR. IRELAND: I can't answer any questions. THE WITNESS: ~- the lawyer that was representing the University of Florida? MR. TRELAND: Shannon } Mil ler. BY THE WITNESS: 10 A Shannon Miller. We had an interview several months back, but I don't think that I was under deposition or aware 12 of deposition then. 13 BY MS. LESTER: 14 Q And what was the substance of that conversation? is A Review those files and notes. L16 Q Okay. Let's -- you have two files that you've handed me. One is Margaret Ochi estate planning and one is 18 Max Sheppard file. A It's on the summary administration I believe. 20 MS. LESTER: Okay. Let's go ahead and attach the 21 Margaret Ochi estate planning file as Exhibit 2 and the 22 file titled Max Sheppard as Exhibit 3 to your i 23 deposition. 24 (Thereupon, Defendant's Exhibits Nos. 2525 1, 2 & 3 were marked for identification SCRIBE ASSOCIATES, INC. GAINESVILLE OCALA LAKE CITY STARKE BY MS. LESTER: Q. Do you have any other files in your office that relate in any way to Margaret Ochi? A Mr. Felder's original file from 2002. I believe that was -~ and the estate file -- excuse me. The estate file set up for Mrs. Ochi's estate. I think that's it. Q Do you have other than the notes made by Mr. Felder in 2002, do you have in this office or taken by anybody at Clayton-Johnston, any notes regarding Mrs. Ochi's estate 10 planning between 2002 and 2015? Li A Don't know. T have notes regarding as early as 2013 in that file. Q Okay. In this estate planning file? 14 A Uh-huh. 16 Yes? L16 Yes. a7 Q. Okay. 18 Sorry. 19 That's okay. 267 The notes made on the outside of this file, who 21 made those? 22. A I don't know. Let me see 23 And that's Exhibit 2 that I'm handing you back. 24 These are all mine. 255 The ones running down the ~- SCRIBE ASSOCIATES, INC. GAINESVILLE OCALA LAKE CITY STARKE 1 A. Left side? The notes on the first decal, I would guess would be Kay, my secretary updating addresses. Original documents in safe, I'm not sure. That could have been Kay, since it was a trust and a first amendment. And new case number, I don't know who wrote that. Q. And what about this file related to Mr. Ochi's estate? A. Those are all my notes. Q- This file contains only looks like pleadings 10 related to the summary administration and the Ameritrade il statement. 12 Were there any notes or billings done as a result 13 of the work done on this file? 14 A. ET don't think so. 15 Q. There was not a bill generated for this work? 16 A. Let me see. T dontt think so. But I'd had have to look in the other files to see iene - is MR. TRELAND: I think I can help you out a little 19 bit. I believe that possibly was billed through the 20 trust, because i billed Dr. Sheppard through the trust. al That may have been subsumed in that. We can find that out, if you would like. MS. LESTER: Okay. 2 24 BY MS. LESTER: 29 Q. And you didn't make any notes or handwritten notes SCRIBE ASSOCIATES, INC. GAINESVILLE OCALA LAKE CIT TARKE 9 or computer -- some people keep all of their notes in a computer file. You did not do that in this -- A I do not do that. Q. There is a number for Larry Christian on here. What's that for? 6 A. Larry Christian was, to best of my knowledge, an investment counselor with somebody who handled the Ochi investments. 9 Q. Have you discussed this case with him at all? 10 A. Don't believe I've discussed the case. I've al discussed what does he have by one or two telephone calls 12 when Max Sheppard and I were trying to put together some kind i3 of inventory of the assets in the trust. 14 Q. Any conversations with him since then? is A. With Larry Christian? 16 Q Yes, sir. Li A. No. 1 Q. Okay. What -~- what is your current employment? i9 As I'm vice president for Clayton-Johnston P.A. 20 Q. And you're an attorney? ai A. Yes. 22 Q. For how long? A. 47 years. 24 Time flies. 25 Do you have any board certifications? SCRIBE ASSOCIATES, INC. GAINESVILLE OCALA LAKE CIT STARKE 10 A No. 2 Q. Do you have experience or special training in the fieid of determining capacity? A. No. Only experience is life experience. Q. Did you ever meet Dr. chi, Michael Ochi? A I'm not sure. When the amendment to the trust was done, I think I was somehow involved, but we had a -- an associate named Karel Ourednik or something iike that who rrT believe prepared the amendment to the trust And they could 10 have talked to me about that, but I don't -- I don't have any il vecollection of it. 1»2 Q. Mr. Felder did the original trust in 2002? 313 A. Uh-huh. 4 Q. And then there was ~~ do you remember when that 15. original trust was completed? 16 A. I just believe that L saw dates in 2002. 1 Q.- Okay. Then there was an amendment in December of 18 2002? 19 A. Right. 20 Q Okay. Did you have any role in drafting that aL amendment? 22 A. I don't have any recollection of that. 23 Q. Okay. Do you have any knowledge about Dr. Ochi's 24 reasons for choosing the beneficiaries that he did? 25« A Which beneficiaries are you talking about? SCRIBE ASSOCIATES, INC. GAINESVILLE OCAL LAKE CITY STARKE 11 Q Any of them. 2 A I think Dr. Ochi chose the University of Florida 3 because he worked there and had a good feeling for the 4 University of Florida. Mary Washington, I didn't know 5. anything about. 6 Q Okay. How did you get the information about the University of Florida? 8 A I think that Dr. Ochi -- let's see. I think I 9 noted a letter from Dr. Young to Dr. Ochi -- 10 Q And -- A -- saying thank you. 12 Q -- you noted that in -- during what time period? 13 A. In doing the -- the work that Mrs. Ochi had talked 14 to me about. 1s Q When? 16 A Would have been in "13; 2013. 17 Q All right. Just so that we can have the documents 18 available, that's the original trust? 19 A Okay. 20 Q And you were not involved in drafting that 2 document? 222 A No 23 MS LESTER: All right. We'll attach that as 24 Exhibit 4 (Thereupon, Defendant's Exhibit Number SCRIBE ASSOCIATES, INC, GAINESVILLE OCALA LAKE CITY TARKE 12 4 was marked for identification) 2 BY MS. LESTER: Q And then this is the first amendment. Is that 4 notarized by the associate you've mentioned? A Uh-huh. Yes. Q Okay. Do you know what precipitated the amendment? No. We can attach that as 5. (Thereupon, Defendant's Exhibit Number 10 5 was marked for identification) BY MS. LESTER: 12 Q Do you recall having any discussions with Dr. Ochi 13 about Mary Washington University? 1g A No. I don't remember having any discussion with 1s Dr. Ochi. 16 Q At all? 1 A Right. 18 Q Okay. So you didn't -~ you never had any 19 discussions with him about Dr. Sheppard either? 20 A I don't remember having any discussions with Dr. 21 Ochi 227 Q Okay. Did you ever have any discussions prior to, 23 say, 2010 with Mrs. Ochi? 24 A I don't recall any. Q Okay. SCRIBE ASSOCIATES, INC GAINESVILLE OCALA LAKE CITY STARKE 13 Let me see that file, please. No. You said no? A Right. Q. Okay. After 2010, ‘did you at some point become 6 aware that Dr. Ochi had been arrested? A I was aware of that. I think Max Sheppard called 8 me about that. About when? 10 I don't have any independent recollection. di Did you make any notes of that? 125 I don't think so. 13 Q Why did he call? 14 A I think Max was asking for some kind of assistance 15 as to what kind of authority he might have in regards to 16 dealing with their situation, since he apparently was taking care of them or had been asked by Dr. Ochi to take care of 18 things for him. And he knew that we had prepared the trust. 19 And Mr. Felder was gone. And it fell me to try to answer his 20 question. al Q Did Dr Ochi ever execute a power of attorney? 22 A I don't -- I don't know. You didn't have one on file? 24 No. 26 Did Dr. Sheppard have the ability to take over as SCRIBE ASSOCIATES, INC. GAINESVILLE OCALA LAKE CITY STARKE 14 successor trustee that at point? A I think that -- well, you're asking me to interpret the trust, but I think the trust provides that both Mrs. Ochi and Mr. Ochi were the trusties. And I think she was the successor, And as far as rT knew, at the time he talked to me about Dr. Ochi's arrest she was there. Q Okay. To your knowledge, did Dr. Sheppard attempt to take over as successor trustee at the time or shortly after Dr. Ochi was arrested? 10 A Not to my knowledge. I think the trust requires il letters from doctors or something to that effect before a 12 successor trustee can be in play. 13 Q Did Mrs. ~~ do you know whether Mrs. Ochi ever a4 attempted to get those on behalf of Dr. Ochi? 4s A No. 16 Q Do you know if Dr. Sheppard did? 7 No. 18 Did you know what Dr. Ochi's medical diagnosis were 19 in 2012? 20 No. 2u Did you know what his psychiatric or psychological 22 diagnosis were then? 23 A No. All I knew was what was in the newspaper and 24 what Mr. Sheppard described had happened. 25 Q Did -- did Mr. Sheppard tell you or did you SCRIBE ASSOCIATES, INC. GAINESVILLE OCALA LAKE CITY STARKE a5 1 otherwise know that he had been Baker Acted; that Dr. Ochi 2 had been Baker Acted? A I heard that. Yes. 44 Q Do you know how that was resolved? A I think he was released. 6 Q Did you do any other work to assist Dr Ochi after that arrest and Baker Act in 2012? A No. I don't believe so. Q Did you do anything else to assist Dr. Sheppard 10 with that situation related to Dr. Ochi's arrest and Baker Li Act in 2012? 12 A 2013, they -- Dr. Sheppard and Mrs Ochi came in i3 and talked to me about a power of attorney for her. 14 Q And would that be contained in this file that says 18 durable power of attorney? 16 A That's it. WW Q Okay. 18 A That's what I prepared. 13 Q Okay. With regard to Dr Ochi's competence, do you 20 know if he was ever diagnosed with Alzheimer's? al A No. 22 Q Okay. Do you -~ do you know where he went to live 23 after the -- he was released from the Baker Act and from 24 jail? A IT thought they lived at The Atrium. SCRIBE ASSOCIATES, INC. GAINESVILLE OCALA LAKE CITY STARKE 16 Q Okay. And you think that's where he went back? 5 A Yes. 3 Q Okay. When was the power of attorney drafted for 4 Mrs. Ochi? 5 A. In 2013; April or May of 2013. Yeah. 6 Q Are the notes related to that in this other file? A Yeah. g Q Okay. What precipitated the draft of the power of attorney? 10. A. Conference with Dr. Sheppard and Mrs. Ochi and il saying, you know, to the best of my recollection, if 2 something happened to me, would -- would he have the right to 13 or the capability of taking care of things. i4 Q Was that a telephone conference or an office 1815 conference? 16 A Office conference, tI believe. 17 Q Who made the appointment for the office conference? 18 A Don't know. ig Q Who -- how would that office conference have gotten 26 on your calendar? 21 A Maybe a telephone call to me. Let me see that > 22 Q This looks like everything in two thousand -- 22 Keep going. 24 Okay. Is this in reverse chronological order? 2 The oldest is on there first. SCRIBE ASSOCIATES, INC. GAINESVILLE OCALA LAKE CITY STARKE WW 1 Q All right. So in February 7th, it looks like 2 February 7th of 2013? 3 A Uh-huh. 4 Q What -- what does that note reflect? A Telephone call from Mr. Sheppard: Try to find the 6 file of original documents and call Sheppard and have 7 conference. Q So Dr. Sheppard called your office? A February 7, 2013. 10 Q Okay. Then what happened? LL A L[ think that they were involved in selling a condo. 12 I think they had a condo at Gaineswood and they were trying 13 to sell that. The Ochis were trying to sell that. And Ron Carpenter was closing, and his office called asking for copies of the trust in order to convey title. Since I have 16 correspondence in here from Ron's old secretary -- and that L might have been why Dr Sheppard called, because he was 18 helping them at that time. 19 Q Do you know whether Dr. Ochi was still alive at 26 that point? 2. A I believe so. Dr. Ochi died on April 13th. 22 Is that correct? 23 Of "13? 24 Let me see, Where's the file? April 19, 2013, he 25 died. Wait a minute. No. April 13, 2013, Dr. Ochi died. SCRIBE ASSOCIATES, INC. GAINESVILLE OCALA LAKE CITY STARKE 18 So he would have been alive at that time in February of 2013. 2 Q. And when Dr. Sheppard called, was he seeking a power of attorney initially or was that simply related to the closing? A. My guess, it was related to the closing, since I 6 don't have any notes in regards to a power of attorney. Tr don't think I had any notes related to a power of attorney until April of 2013. Q. April what? 10 A. I have notes of a7 conference April 30, 2013. di Q. So shortly after Dr. Ochi died? 12 A. Right. That conference says, find Dr. Ochi's 13 original will; file it. Mr. Sheppard had it He said he 114 would file it along with a copy of the death certificate. 15 Mr. Sheppard would let me know if there are any assets in Mr. 16 Ochi's name alone. Discussed durable power of attorney for 117 her to Mr. Sheppard. Then the final note was, do one. 18 Q. Was that result of a phone conference or an office ig conference with Dr. Sheppard? 20 A. Office conference. ai Q. And who was present there? 2 A. I'm assuming just Dr. Sheppard, since