Preview
Filing # 88702521 E-Filed 04/29/2019 05:48:12 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 FOURTH 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 [V 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 Shannon L. Smyth dated April 8, 2019 attached as Exhibit A;
CERTIFICATE OF SERVICE
T HEREBY CERTIFY on April 2, 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, rnw@gate.net
and John Cole, Esquire, Jason Van Lenten, Esquire, Christine Sweet, Esquire, 225 Water Street,
"2015 CA 004330" 88702521 Filed at Alachua County Clerk 04/30/2019 08:15:00 AM EDTSuite 1750, Jacksonville, FL 32202, jcole@gunster.com, jvanlenten@@gunster.com,
esweet(@gunster.com, wnystrom@gunster.com, sjustice(@eunster,com.
SALTER FEIBER, P.A.
Jennifer @ates4.ester
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
Attorney for Defendant, ‘Shannon Smyth10
a1
12
13
14
i5
16
17
18
139
20
21
22
23
24
25
Shannon Smyth
April 08, 2019
IN THE CIRCUIT COURT OF FLORIDA,
EIGHTH JUDICIAL CIRCUIT, IN AND
FOR ALACHUA COUNTY, FLORIDA
CASE NO.: 01-2015-CA-4330
RICHARD M. WHITE, as Trustee of
The Michel K. and Margaret D. Ochi
Revocable Trust Agreement; UNIVERSITY
OF FLORIDA FOUNDATION, INC.; and
UNIVERSITY OF MARY WASHINGTON
FOUNDATION,
Plaintiffs,
vs.
SHANNON L. SMYTH,
Defendant .
VIDEO-RECORDED
DEPOSITION OF: SHANNON L. SMYTH
DATE TAKEN: April 8, 2019
TIME: 10:05 a.m. - 12:08 p.m.
1:05 p.m. ~ 3:47 p.m.
PLACE: Salter Feiber, P.A.
3940 Northwest 16th Boulevard
Building B
Gainesville,
TAKEN BEFORE:
Notary Public
U.S. LEGAL SUPPORT
www.uslegalsupport.com
Florida 32605
Lynn Marie Durscher,
RPR, CRR,
EXHIBIT {\10
11
12
13
14
1s
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019
APPEARANCES:
APPEARING ON BEHALF OF THE PLAINTIFFS
UNIVERSITY OF MARY WASHINGTON FOUNDATION:
JASON P. VAN LENTEN, ESQUIRE
Gunster, Yoakley & Stewart, P.A.
225 Water Street, Suite 1750
Jacksonville, Florida 32202
jvanlenten@gunster.com
APPEARING ON BEHALF OF THE DEFENDANT
SHANNON L. SMYTH:
JENNIFER CATES LESTER, ESQUIRE
STAR M. SANSONE, ESQUIRE
Salter Feiber, P.A.
3940 Northwest 16th Boulevard
Building B
Gainesville, Florida 32605
jenniferlesalterlaw.net
stars@salterlaw.net
ALSO PRESENT:
John E. Knight, Esquire
University of Florida Foundation, Inc.
Sarah J. Loiler, Videographer
U.S. LEGAL SUPPORT
www.uslegalsupport.com
UNIVERSITY OF FLORIDA FOUNDATION, INC., and10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 3
INDEX
April 8, 2019
VIDEO-RECORDED
DEPOSITION OF: SHANNON L. SMYTH
Direct Examination by Mr. Van Lenten 7
Cross-Examination by Ms. Lester 161
Redirect Examination by Mr. Van Lenten 164
CERTIFICATE OF REPORTER 168
CERTIFICATE OF OATH 169
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019
EXHIBITS
Plaintiffs' Exhibit 1
(Florida Living Will Declaration)
Plaintiffs' Exhibit 2
(Florida Designation of Health Care Surrogate)
Plaintiffs' Exhibit 3
(E-mail dated 5/2/13 from Max to Shannon)
Plaintiffis' Exhibit 4
(B-mail dated 6/14/13 from Max to Shannon)
Plaintiffs' Exhibit 5
(E-mail dated 6/28/13 from Max to Shannon)
Plaintiffs’ Exhibit 6
(E-mail dated 7/16/13 from Max to Shannon)
Plaintiffs' Exhibit 7
(E-mail dated 8/5/13 from Max to Shannon)
Plaintiffs' Exhibit 8
(E-mail chain; Subject: Note from Max Sheppard)
Plaintiffs' Exhibit ¢
(Last Will and Testament of Margaret D. Ochi)
Plaintiffs' Exhibit 10
(E-mail chain; Subject: Tax Return)
Plaintiffs' Exhibit 11
(E-mail chain; Subject: Tax Return)
Plaintiffs' Exhibit 12
(E-mail chain; Subject: Mrs. Ochi)
Plaintiffs’ Exhibit 13
(E-mail chain; Subject: Tax Return)
Plaintiffs' Exhibit 14
(E-mail dated 6/19/13; Subject: Mr. Ochi Tax Returns
Plaintiffs' Exhibit 15
(E-mail chain; Subject: Mrs. Ochi Taxes
Plaintiffs' Exhibit 16
(E-mail dated 3/1/14; Subject: Mr. Ochi)
U.S. LEGAL SUPPORT
www.uslegalsupport.com
20
21
57
58
59
61
61
62
65
83
84
86
87
92
93
9510
il
12
13
14
is
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 5
EXHIBITS
Plaintiffs' Exhibit 17 96
(E-mail chain; Subject: Mr. Ochi)
Plaintiffs' Exhibit 18 102
(g-mail chain; Subject: Tax Return)
Plaintiffs' Exhibit 19 103
(E-mail chain; Subject: Mrs. Ochi's Tax Return)
Plaintiffs' Exhibit 20 105
(E-mail chain; Subject: Tax Return)
Plaintiffs' Exhibit 21 106
(B-mail chain; Subject: Tax Return)
Plaintiffs' Exhibit 22 109
{E-mail chain; Subject: Mrs. Ochi)
Plaintiffs' Exhibit 23 Lil
(E-mail chain; Subject: Mrs. Ochi 2014 Taxes)
Plaintiffs' Exhibit 24 114
(E-mail chain; Subject: Tax Return)
Plaintiffs' Exhibit 25 121
(Morgan Stanley check; BOA deposit ticket; e-mails)
Plaintiffs' Exhibit 26 125
(Morgan Stanley check; BOA deposit ticket)
Plaintiffs' Exhibit 27 128
(SunTrust check; BOA deposit ticket)
Plaintiffs' Exhibit 28 130
(Florida Credit Union cashier's checks;
BOA deposit ticket)
Plaintiffs' Exhibit 29 130
(Wells Fargo cashier's check/BOA deposit ticket)
Plaintiffs' Exhibit 30 131
(Florida Capital Bank check; BOA deposit ticket
Plaintiffs' Exhibit 31 146
(Shannon Smyth's Notice of Serving Answers to
Plaintiffs' First Interrogatories)
U.S. LEGAL SUPPORT
www.uslegalsupport.com15
16
17
18
13
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 6
P-R-O-C-E-E-D-I-N-G-S
THE VIDEOGRAPHER: It is April 8, 2019, at 10:05
a.m., and we are on the video record.
THE COURT REPORTER: Good morning. We are now on
the video record.
Today is the 8th day of April, 2019. The time is
9:54 (sic) a.m. We are here at the Law Offices of Salter
Feiber at 3940 Northwest 16th Boulevard, Building B,
Gainesville, Florida, for the purpose of taking the video
deposition of Shannon L. Smyth taken by the Plaintiffs
University of Florida Foundation, Inc., and University of
Mary Washington Foundation in Case No. 01-2015-CA-4330,
Richard M. White, as Trustee of the Michel K. and
Margaret D. Ochi Revocable Trust Agreement, University of
Florida Foundation, Inc., and University of Mary
Washington Foundation, Plaintiffs, v. Shannon L. Smyth,
Defendant, which is filed in the Eighth Judicial Circuit
of Alachua County, Florida.
The court reporter is Lynn Durscher of US Legal
Support. The videographer is Sarah Loiler of US Legal
Support.
Would all counsel please state their appearance for
the record.
MR. VAN LENTEN: Jason Van Lenten on behalf of the
Plaintiffs University of Florida Foundation, Inc., and
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 7
University of Mary Washington Foundation.
MS. LESTER: And Jennifer Lester and Star Sansone
for Shannon Smyth.
SHANNON L. SMYTH,
having been first duly sworn to tell the truth, was
examined and testified upon his oath as follows:
THE WITNESS: Yes, ma'am.
DIRECT EXAMINATION
BY MR. VAN LENTEN:
Q. Good morning, Mr. Smyth. My name is Jason Van
Lenten.
A. Good morning.
Q. I'm an attorney for the University of Florida
Foundation and Mary Washington Foundation in this litigation
which you are a defendant in.
Have you been deposed since your last deposition in
this matter in June of 2017?
A. No, sir.
Q. But I do know you have been deposed previously,
particularly in this case, by --
A. Yes.
Q. -- a former coparty.
A. Yes, sir.
Q. I'll just be very brief in going through the
instructions. We would ask that your answers be verbal so
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
al
22
23
24
25
Shannon Smyth
April 08, 2019 )
that the court reporter on my left could take down your
response. Nods of the head don't work so well --
A. Okay. Yes.
Q. -- in the stenographic transcript.
A. Yes, sir.
Q. I would ask you to please let me finish my question
before you respond. This is going to help a variety of ways.
It's going to help the court reporter take down my full
question, take the full response rather than having overlap
between us talking, and it will also allow your counsel,
Ms. Lester, to object as appropriate.
If at any time you need a break, we would ask you to
answer whatever pending question might have been asked, and
then you will be entitled to your break.
Okay.
Any questions?
No, sir.
Please state your date of birth.
And where do you currently reside?
Tie | el e\2 &
I live in Burberry Ponds off 7811 Northwest 44th
Street, Gainesville, Florida.
Q. And what is the mailing address?
A. 7811 Northwest 44th Street, Gainesville, Florida
32653.
U.S. LEGAL SUPPORT
www.uslegalsupport .com10
il
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 9
Q. And how long have you resided at that address?
A. I believe in August will be 10 years.
Q. Have you had any change in your employment status
since your last deposition in June 2017?
A. The company I worked for, CH2M Hill, was acquired by
Jacobs Engineering firm, the largest engineering firm in the
world, and I still work for the same company, but it was
merged, so they changed the name.
Q. Well, congratulations on that.
A. Thank you. I made the cut.
Q. Now, I understand from your prior deposition that
you met the Ochis around 1980. Does that sound roughly
correct?
A. Yes, sir.
Q. Can you tell me a little bit about the first time
you met the Ochis?
A. sure. I remember I was in middle school. I was in
sixth grade, and my bus stop was in front of Mr. Ochi's
property where hé was building a house or having a house
built, and Mr. Ochi would come out to check on his property
two or three times a week. And I was at the bus stop, you
know, waiting for my bus, so Mr. Ochi would always talk to me
and show me the, you know, plans on his home that he was
going to put there, and he would show me the position of
the -- how it was going to sit on the lot. And we just
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 10
became friends because he came out so often, you know, to
check on his property, and we just became, you know, close
friends, you know, over the years.
Q. And I'm going to focus on the first 10 years after
you met the Ochis. If it was approximately in 1980 when you
met them --
A. Yes, sir.
Q -- you would have been approximately 13 years old?
A I'd say 12 or 13. Yes, sir.
Q. Let's fast forward about eight years to around 1988.
A Okay.
Q. And in 1988 you would have been 20 or 21 years old;
is that correct?
A. I'm not so great with math right off my head here,
but, yes, I think so.
Q. What was your relationship with the Ochis at that
time?
A. Well, let's see. I graduated in '86, so I had
become really very close with the Ochis. They were -- they
were like grandparents to me. They came to my graduation. I
worked at the same office building that Mr. Ochi worked in,
which was at the College of Engineering. Mr. Ochi got me
that job because I was in school, you know, at Santa Fe
College for graphic design, and he got me a job as a graphic
designer or, you know, becoming a graphic designer for the
ene sinemectrehetinrentitneiaenirenietinntnteeinintniaiunnaantianinmnssnen
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22.
23
24
25
Shannon Smyth
April 08, 2019 11
publication services at the building that he worked, so we
were really close.
Q. Are there any other ways in which you believed the
Ochis treated you like a grandchild in and around 1988?
A. Yes. I mean, like I said, they came to my
graduation. I had dinners with them. I would see them every
Christmas, Thanksgiving, Easter, all the holidays. I never
missed their birthdays. They never missed my birthdays. So
we were, you know, like family.
Q. So when you were 20 years old in 1988, how often,
approximately, did you see the Ochis?
A. Well, I would go to their house for dinner.
Mr. Ochi would fix, you know, this shrimp tempura. You know,
he loved it and I loved it, and he would have me out for
dinner at least once -- I would say at least maybe once a
month, and I called them on the phone quite often, and, you
know, we just -- we stayed in touch all the time.
Q. Other than dinners approximately once a month and
phone calls, did you go over during this time period to visit
the Ochis for any other reasons?
A. Well, I visited them on Christmas and Thanksgiving
and Easter and their birthdays. I never missed their
birthdays. Sometimes they would take me out to dinner. You
know, we would go to a restaurant someplace, you know,
different places. |
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 12
I took care of their animals and their, you know, or
house when they left the country. You know, they would go on
vacations, and I always took care of their animals. And, you
know, they had lots of plants, so I took care of all their
plants and everything.
Q. What was Michel Ochi's physical condition like in
1988?
A. It's been a long time ago, so I -- I don't really
remember exactly. I mean, he was -- seemed fine to me.
Q. What about Margaret Ochi and her physical condition?
She seemed fine.
Was she walking on her own in 1988?
I believe so.
Was she driving in 1988?
Yes.
Did she have any hearing problems in 1988?
> oP oO Pp Oo Pp
I'm not aware of that. I didn't see any hearing
aids or anything like that.
Q. What about the physical condition -- strike that.
What about the mental condition of Michel Ochi in
1986?
A. I think he was fine. I don't know. I mean, it
didn't seem -- he didn't seem, you know, odd or anything to
me in 1988.
Q. What about Margaret Ochi and her mental condition in
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
121
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 13
1988?
A. She was also fine.
Q. Were you aware of any other friends that the Ochis
had in 1988?
A. Max Sheppard. They were friends with Alicia and Max
Sheppard.
I assume they knew their neighbors, you know, in the
neighborhood. I believe at that time they still lived in The
Hammock, and they might have been friends with the Hemps. I
don't remember -- Gene Hemp and, you know, he -- I'm sure he
had his professors from the university that he might have
been friends with. I'm not really sure.
Q. In 1988 did the Ochis ever mention their wills to
you?
A. I don't remember.
Q. Did they ever mention their testamentary intent?
And when I say "testamentary intent," what they
wanted to happen to their assets after they died.
A. I remember at a dinner one time, when I was out at
their house, they had mentioned something about -- I don't
know if they said their will or their trust. I can't
remember exactly what they said, but they had mentioned
something about, you know, my future, you know, something
| Like that, but it's been so long ago, I really don't remember
| exactly what it was.
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Shannon Smyth
April 08, 2019 14
It was at a dinner at their house. I do remember
the two of them.
Q. And when do you recall this dinner occurring?
A. It seems like it was in maybe '88 or '89. I'm not
sure to tell you -- it's just been a long time ago.
Q. But it would seem correct that this conversation
occurred when you were in your early 20's?
A. Yes. Because I remember, when I got my first job,
and I know Mrs. Ochi, you know, she -- she's the one that
actually told me that I should start my 401(k) because she
was, you know, really excited that I got a job at an
engineering company, and she said I needed to, you know,
start the 401(k) as soon as possible, you know, and no matter
what I do, don't touch it. You know, put as much as I could,
much money as I could, you know, afford to do, and she was a
mentor to me.
Mr. and Mrs. Ochi both were, like, mentors, and I
looked up to them. They were like, you know, the smartest
people that I've ever met, and so I just admired them and,
you know, I did what they told me to do. Like, I respected
them so much. So it was just very, you know, very nice to
have someone like that in your life.
Do you know who Evelyn Giesler is?
A. No.
Q. Do you know who Mary Catherine Enright is?
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 15
A. No. That -- I don't know. I don't know the name.
The last name I don't know.
Q. Do you know who Samuel Edward Lee is?
No.
What about Huruko Murakami, do you know who that is?
No.
oP oF
Who is Lewis Motter?
A. That is friends of the Ochis that live in Maryland.
I'm assuming they still live in Maryland, but they were --
they were good friends of the Ochis, and I believe Lew Motter
worked for Mrs. Ochi at the Model Basin in Washington.
Q. So it's your understanding that Lewis Motter worked
with Margaret Ochi?
A. Yes.
Q. Did Lewis Motter ever live in Florida?
A. Not that I'm aware of.
Q. Did you ever see Lewis Motter in Florida?
A. Yes.
Q. How often?
A, I remember meeting him in the early '80s, I believe,
and I've seen him several times after -- let's see, several
times probably since the Ochis moved to the Atrium. It seems
like at least once or twice I might have seen them.
I can't really remember.
Q. During this time period around 1988, how often did
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 16
you see the Ochis with Max Sheppard and Max Sheppard's wife?
B. I saw them, Max, you know, I went to dinner with
them for Mrs. Ochi's birthday, and I did see Max, you know,
occasionally he would stop by the apartment at the Atrium and
visit Mrs. Ochi.
I talked to Max on the phone, you know, and text
messages and e-mails quite often. So I don't have a number.
I can't remember.
Q. How would you categorize the relationship -- I'm
sorry, characterize the relationship between the Ochis and
the Sheppards in 1988?
A. I know they were friends, because I believe that the
Ochis would go to their house sometimes during Christmas, I
believe, for Christmas dinner. I believe Mrs. Ochi had told
me that.
Q. I'm going to shift gears now and talk about the time
period between 1988 and 2001.
And I know you told me you're not good at math.
A. Yeah.
Q. But 1988 to 2001, that would roughly correspond to
when you were aged 21 through 34 or so; correct?
A. I would say so.
Q. What was your involvement in the Ochis' life like
during this time period?
A. It was the same as I've always had. I would visit
U.S. LEGAL SUPPORT
www.uslegalsupport.com12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 17
them quite often, you know, birthdays, Christmas,
Thanksgiving, Easter. They all -- they never missed my
birthday.
I had bought a townhome and I believe it was around
1990-ish, I think, and Mrs. Ochi would come to my house and
she actually bought me my first -- she said a young man needs
crystal glasses for entertaining, and she bought me crystal
glasses, and she bought me stuff for my dining room that --
you know, she looked around the house and she saw the colors
and schemes, and she bought me stuff like that.
And she would always come over. She knew I liked
German chocolate cake, so she would always make a German
chocolate cake for me and bring it to my home.
Q. So Mrs. Ochi made these gifts to you between the
ages of 21 and 34?
A. Yes.
Q. Anything else that the Ochis bought for you during
that time period?
A. You know, when they would go on trips, they would
bring me souvenirs back from wherever they went. I -- you
know, like souvenirs and things like that, and, you know,
they would usually -- for Christmas I would always get a
gift. If they didn't give me a gift, they would give me,
like, $50 or, you know, a check or cash, and, you know, for
my birthdays as well.
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
il
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 18
Q. Other than the gifts and the relationship, was there
any -- let me strike that.
Did you still consider that the Ochis treated you
like a grandchild during this time period?
A. Yes.
Q. Other than the gifts and the visits, were there any
other reasons you felt that they treated you like a
grandchild during this time?
A. Well, they were just like family to me. You know, I
always thought of them, you know, all the time. If I hadn't
heard from them in a few days or in a few weeks, I'd give
them a call, and if they hadn't heard from me, they would
call me and ask how I was doing. They, you know, always
just -- you know, I loved them, and I think they loved me.
And we were just, like -- you know, I wasn't close
to my grandparents because they lived like two states away,
so I sort of adopted the Ochis as my grandparents, and I
think they had no children, so I think they adopted me as
their grandchild.
And, you know, Mrs. Ochi actually would tell people
sometimes, she'd say, you know, that, when she introduced me,
she would say I was her grandson or her God son. You know,
she would introduce me that way. And, you know, we just were
close, you know.
Q. Where did the Ochis live in 1988?
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
il
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 19
A. I believe they lived in The Hammock off Millhopper
Road.
Q. At some point in the next 13 years, the time period
from 1988 through 2001, did the Ochis move out of The
Hammock?
A. Yes, sir.
Q. Where did they move to?
A. They ended up moving. They bought a condo in, I
think it's called, The Greens at West End. It was like a
three-bedroom with a garage condo. They wanted to downsize
because Mr. and Mrs. Ochi told me their house was pretty
large and the yard, you know, was a lot of upkeep, and so
they wanted to, you know, have a smaller space with less
maintenance.
Q. Do you know whether or not they moved from The
Hammock to The Greens at the beginning of the period from
1988 through 2001, in the middle of that period, or towards
the end of that period?
A. I'm not really sure.
Q. But you recall that in 2001 they resided in The
Greens?
A. I'm not good with dates, so I don't know the date
that they lived there, but I know that they moved from The
Hammock to The Greens. I don't know the dates.
Q. In that period, 1988 through 2001, did the Ochis
U.S. LEGAL SUPPORT
www.uslegalsupport .com10
11
12
13
14
15
16
17
18
19
20
2l
22
23
24
25
Shannon Smyth
April 08, 2019 20
ever mention their testamentary intent to you?
A. I don't remember.
Q. In 2001 do you recall them telling you that they
were meeting with an attorney to work on estate planning
documents?
A. No.
Q. Were you aware that they were meeting with an
attorney in 2001 to work on estate planning documents?
A. No.
(Thereupon, Plaintiffs' Exhibit 1 was marked for
identification.)
BY MR. VAN LENTEN:
Q. Mr. Smyth, I'm going to hand you a document that I
have marked as Plaintiffs' Exhibit 1.
And you can take your time. I'm going to ask you to
take a look at this.
Do you know what this document is?
A. No, sir.
Q. If you turn to the second page of this document and
go to the bottom --
A. Oh, okay.
Q. -- is that your signature at the bottom of the
second page of Exhibit 1?
A. Yes, it is.
Q. Does that refresh your recollection as to what this
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 21
document is?
A. I do remember Mr. Ochi coming to my office when I
worked off of Williston Road at CH2M Hill, and he asked me if
I would sign something for him, and I said, "Of course." And
I do remember signing this.
I didn't read it, because he didn't sit there and
tell me to read it. He just said would I be a witness or
something, and I do remember him coming to my office off of
Williston Road. I didn't know what it was.
Q. Was Margaret Ochi with him?
A. No.
Q. Margaret Ochi was not with him on November 9, 2001,
when this document was signed?
A, No.
Q. Are you sure about that?
A. Yes.
(Thereupon, Plaintiffs' Exhibit 2 was marked for
identification.)
BY MR. VAN LENTEN:
Q. Mr. Smyth --
A. Yes, sir.
Q. -- I'm going to hand you a document that's been
marked as Plaintiffs' Exhibit 2. Please take a look at that.
Is that your signature on page 2 of Plaintiffs'
Exhibit 2?
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
al
22
23
24
25
Shannon Smyth
April 08, 2019 22
A. Yes.
Q. Do you recall what this document is?
A. It looks like the same as the other one.
Q. Would you have signed this document on the same date
that you signed Exhibit 1?
A. I think, yes.
Q. And was Margaret Ochi present when you signed this
document ?
A. No.
Q. When you met with Michel Ochi to sign
documents -- I'm sorry, Exhibits 1 and 2, did he say anything
to you about meeting with attorneys to work on wills and/or
trusts?
A. No, sir.
Q. So when you signed Exhibit 1 and 2, you were not
aware that the Ochis had been consulting with an estate
planning attorney?
A. No, sir.
Q. How would you describe Michel Ochi's mental
condition in 2001?
A. I don't remember, but I think he was okay.
| Q. Did you make any observations of Michel Ochi around
the 2001 time period that would lead you to believe that he
| might have been lacking in capacity?
A. No, sir.
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 23
Q. What about Margaret Ochi, did you have any concerns
as to her mental capacity around 2001?
A. No, sir.
In 2002 you were age 35; correct?
I guess so.
Roughly.
Q
A
Q
A. I think so.
Q Roughly age 35.
A Yes, sir.
Q
None of us are very good at math. I'll stipulate to
A. I feel like I'm getting so old now.
Q. Yeah, if I was good at math, I'd be an engineer
instead of a lawyer and probably a lot happier, so...
A. Yes, sir.
Q. In 2002 had your involvement with the Ochis become
more or less or about the same as it was in the prior years?
A. I would say about the same.
Q. And in 2002 where did the Ochis live?
A. I'm not sure if they had moved yet, you know, from
The Hammock or The Greens. They either lived at The Hammock
or they lived at The Greens, because that's the only two
places they lived until they moved to the Atrium.
Q. Is there a point in time when you're sure that the
Ochis had moved to The Greens?
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 24
A. Oh, yes, because I remember they had movers help
them, and when they moved everything, they -- all their
furniture was jumbled up in the house, and I went over and
helped them get everything straightened up and situated, and
I helped Mr. Ochi hook his computer up and his printer. And
so I know they had moved, but I just don't remember dates,
you know.
Q. What's the latest date that you think they could
have moved?
Stated differently, is there a point in time, say in
2005, for instance, where you're sure that they had moved by
that point?
A. I know that they were there in 2007 because I hada
2007 car that I had gotten and I drove to that place. So I
know it had to have been in 2007, but I'm not exactly sure,
you know, before that. But I know for sure I did have a car,
the 2007 car, and I went to see them in that car, so I do
remember that.
Q. Did the Ochis ever tell you in 2002 that they had
signed wills?
A. No, sir.
Q. Did they ever tell you that they had created a
revocable trust?
A. No, sir.
Q. Did they ever mention any other testamentary intent
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 25
at that time?
A. No, sir, not that I can remember.
Q. Any changes in Michel Ochi's mental condition in
A. Not that I'm aware of.
Q. Any changes in Margaret Ochi's mental condition in
A. No, sir, not that I'm aware of.
Q. To the best of your understanding, both of the Ochis
were in full possession of their faculties in 2002?
A. Yes, sir.
Q. Was Margaret walking on her own in 2002?
A. I can't remember exactly because I know she had a
knee replacement and so -- but I don't remember when that
was, but I do know she actually had both knees -- you know,
her knees replaced, and so I remember at one time, when she
lived at The Greens, I remember she had a cane.
Q. Was Margaret driving on her own in 2002?
A. Yes, sir, I believe so.
Q. Did Margaret have any hearing issues in 2002?
A. Not that I'm aware of.
Q. Did there come a point in time where Margaret had
hearing issues?
A. Yes, sir.
Q. Did Margaret need any assistance with making
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
iL
12
13
14
15
16
17
18
19
20
al
22
23
24
25
Shannon Smyth
April 08, 2019 26
appointments in 2002?
A. Excuse me.
Not that I'm aware of.
Q. Did Margaret need any assistance in running errands
in 2002?
A. I don't believe so.
Q. Did Margaret need any assistance in paying her taxes
in 2002?
A. Not that I'm aware of, other than she might have
used her CPA or her accountant. I don't know.
Q. All right, Mr. Smyth, we're going to now shift gears
and talk about the next five-year period, 2003 to, we'll say,
2007, which is the point at which we know that the Ochis were
now at The Greens.
A, Yes, sir.
Q. 2003 through 2007 you were approximately age 35
through 39, just about 40. Does that sound right?
A. I guess so.
Q. At this point in time, did you still consider the
Ochis to be like grandchildren?
A. I felt like they were grandparents.
Q. All right. I should probably withdraw that
question.
How so? What did they do in this time period when
you were age 35 through age 40 that made you feel like you
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
il
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 27
were a grandchild to them?
A. Well, since I've known them since I was 12 to
13 years old and I've always been close, tight to them, the
feelings and only got stronger over the years. So, you know,
like I said, I never missed -- they never missed my birthday.
I never missed their birthdays. Christmas, Easter,
Thanksgiving, I always went to see them.
You know, I brought them flowers or gifts or fruit
baskets because they liked that, and so we always were just
very close. You know, I called them all the time. They
called me quite often, and they were family to me.
Q. Did they have friends during this time period?
A. Yes. I believe they had Max Sheppard, and I believe
they stayed in touch with the Motters.
Q. Anybody else?
A. I really don't know their -- they were sort of, you
know, loners, so I don't know their social circle, you know.
At The Greens, they might have had their neighbors as friends
and things, but, you know, I never really heard her mention
it.
Q. Now, you just mentioned that the Ochis were sort of
like loners. What do you mean by that?
A. Well, they were together. They were their -- you
know, they hung out together by theirselves. They, you know,
they didn't really -- I don't remember them going a lot of
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
il
12
13
14
15
16
17
18
19
20
al
22
23
24
25
Shannon Smyth
April 08, 2019 28
places with people other than me and then probably the
Ochis -- the Max Sheppard's wife and Max and the Motters, you
know, when they came to town. So I just didn't see them
with, you know, other people.
Q. Did you consider them to be private people?
A. I would say they were private.
Q. During this time period, 2003 through 2007, was
there any change in the Ochis', either Michel's or
Margaret's, mental condition?
A. Not that I'm aware of. Dates, you know, I just
really don't know the dates, you know.
Q. Okay. Now, let's --. well, first, are you aware of
some incidents involving Michel Ochi that occurred in April
2012?
A. Yes.
Q. Do you understand that at some point in April of
2012 Dr. Ochi, Dr. Michel Ochi was Baker Acted?
A. Yes.
Q. And as you sit here today, do you understand that at
some point in April 2012 Dr. Michel Ochi was incarcerated?
A. Correct.
Q. Let's talk about the five-year period beginning
around 2008 when we're sure that the Ochis lived in The
Greens until the early part of 2012 before the incidents that
occurred in April.
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 29
A. Okay.
Q. Okay?
A. Yes, sir.
Q. You were approximately age 40 through 44, early 40's
during this time period. Does that sound right?
A. Sounds right.
Q. Do you think that the Ochis continued to treat you
as a grandchild during this time period?
A. Yes, sir.
Q. Anything different in your relationship with the
Ochis other than from what you have previously testified to?
A. No. I would say towards, I guess, maybe towards the
end towards 2012 I would call them more often and go visit
them more often.
Q. During this entire time period, 2008 through the
beginning of 2012, the Ochis lived at The Greens; correct?
A. I -- I think so. If they were not at The Hammock,
they were at The Greens.
Q. Okay. Assuming that they had moved to The Greens in
2008 --
A. Yes, sir.
Q. -- then they would have lived at The Greens during
this entire time period through 2012; correct?
A. Correct.
Q. Did the Ochis have friends during this time period?
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
il
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 30
A. I don't know.
Q. Were they still friends with Max Sheppard and his
wife?
A. I believe so.
Q. Did you ever see Max Sheppard and his wife when you
visited the Ochis during this time period?
A. No.
Q. How often did you visit the Ochis at The Greens
during this time period?
A. I would say that I went out there maybe two to three
times a month, if not more.
Q. How would you describe Michel Ochi's physical
condition during this time period?
A. I would say towards the end of the time frame, he
was not looking like himself. You know, his appearance had
changed. Mr. Ochi used to always be, you know, very dressed
to the T. I mean, he was very -- bless you.
He was just very well groomed. His hair was nice,
you know, and I noticed that he started to look kind of like
a bum. You know, his pants were kind of ripped. The knees
were ripped. He tied his pants up with a rope instead of a
belt. His beard was unshaved and gray and long, which was
not like him. His hair was all gray and long and not like
himself.
So I did notice that, and he always wanted to stay
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
al
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 31
in the bed. When I would come over to visit, Mrs. Ochi would
say, "Mickey, you need to get up. Shannon's here to come
visit."
And, you know, it was like, you know, it's just like
he always wanted to just stay in the bed it seemed like.
So I -- I noticed that difference.
Q. And you started noticing these differences in Michel
Ochi's physical appearance by the end of 2011?
A. I would say it was in that time frame, 2011 to '12,
somewhere around there.
Q. And it was before April 2012 you made these
observations?
A. Yes.
Q. Did you ever talk to Michel about -- to try to help
him with his grooming and to help try to get him out of bed?
A. No, I didn't want to disrespect him, you know, or
make him feel uncomfortable.
He would tell me -- I'm quoting him. He would say,
"Shannon, I'm just so lazy." That was the term that he would
use. "I'm just so lazy these days."
Q. Do you know if Margaret Ochi undertook any efforts
to improve Dr. Ochi's physical sdpdadarled gad vitality during
this time period?
A. I'm not sure.
Q. How would you describe Margaret Ochi's physical
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 32
condition during this same time period?
A. I think she was fine. You know, I think that she
was slowing down, you know, a little bit. She had a cane, so
-- but she seemed fine to me.
Q. So focusing on the early parts of 2012 before the
incidents in April, was Margaret Ochi walking on her own?
A. Yes.
Q With the assistance of a cane?
A Yes.
Q. Was Margaret Ochi driving?
A I don't know if she was driving at that time or not.
Q. You're not sure whether or not Margaret Ochi was
driving at the beginning of 2012?
A. I know at one point she got her license taken away,
but I don't know the dates.
Q. What do you understand as to the reasons why
Margaret Ochi lost her driver's license?
A. Well, I know what she told me.
Q. What did Margaret Ochi tell you?
A. She said that she was down at the gym. They had a
gym at the facility where they lived, and it was at the
front. She told me that she had driven her car down there
and she had parked in the handicapped space, and she was
working out, and she told me that she had gotten overheated
and felt faint.
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
il
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 33
So she said she went to her car, and she started the
car to sit in the air-conditioning. And she said she was
kind of slumped over a little, and she said some person --
she didn't know if they lived there or someone visiting, but
she said some person knocked on the window, and she rolled
the window down, and asked how she was.
And what she told me was they asked where she lived,
and they shoved her over and drove her home, and if I know
Mrs. Ochi, which I do, she most likely cursed them out for,
you know, doing that.
And she told me she thinks because of that they
reported her to the DMV, and they took her license. That's
what she told me.
Q. Are you aware of the DCF doing an investigation into
Margaret Ochi?
A. No.
Q. Were there caretakers who worked with the Ochis at
The Greens in the early parts of 2012?
A. Not that I'm aware of.
Q. Did there come a point in time when caretakers
started going to the Ochis' house?
A. I remember Mrs. Ochi saying she had food delivered
at one time, but she said it was lousy, so she didn't want to
continue paying for it. But I don't remember any person. I
never saw any person there while I was there.
U.S. LEGAL SUPPORT
www.uslegalsupport.com13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 34
Q. Do you recall any caretakers helping Margaret Ochi
prior to April 2012?
A. No.
Q. In the early part of 2012, did Margaret Ochi need
any assistance in making her appointments?
A. I think she made her own appointments, but she might
have needed assistance getting to those appointments.
Q. In the early portions of 2012, do you know how she
would have been taken to the appointments?
A. Well, if she called me, I would take her whenever
she called and asked me to take her. If I was off work, you
know, I would try to arrange to take her wherever she wanted.
I always took her, if she asked me to take her someplace, I
took her.
Q. Do you know --
A. And Mr. Ochi, I think he might have driven her
places while they lived at The Greens, but I don't know for
how long, and I don't know if neighbors might have taken her
or Max. I really don't know.
Q. So it's your understanding that, in the early
portion of 2012, that Michel Ochi was driving?
A. I believe that he still had his license, and I
believe he might have been driving. I don't know how good he
drove, but I'm not sure exactly, to tell you the truth.
Q. Did the Ochis need any assistance with their taxes
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 35
in the early portion of 2012?
A. I don't know. I assumed their CPA or accountant
helped them.
Q. Did either of the Ochis need any assistance in
writing checks in the early portions of 2012?
A. Not that I'm aware of.
Q. Did either Michel or Margaret Ochi need any
assistance on their banking and financial transactions in the
early portions of 2012?
A. Not that I'm aware of.
Q. Did you assist them with any of these things in the
early portions of 2012?
A. Not that I can remember.
Q. Other than occasionally driving Mrs. Ochi to
appointments?
A. Correct.
Q. What's your understanding of the Baker Act
proceedings involving Dr. Ochi?
A. I'm not sure I understand the question.
Q. As you sit here today, are you aware that there was
some kind of Baker Act proceedings relating to Dr. Ochi that
took place in April of 2012?
A. Well, I knew that he wasn't allowed to go home back
to The Greens.
Q. I'm asking what's your understanding of what
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 36
transpired.
A. Oh. Well, what I understand is that there was some
kind of disagreement or argument or something with Mr. and
Mrs. Ochi, and Mr. Ochi ended up going to jail. So I don't
know all the details. I just know that he wasn't allowed to
go back home.
Q. So when I talk about the Baker Act proceedings, in
your mind is there any difference between Baker Act
proceedings and the incarceration?
A. I don't know.
Q. So your understanding is you're aware that Dr. Ochi
was arrested at some point in April 2012?
A. Yes, sir.
Q. When did you -- well, how did you first find out
about this?
A. I can't remember. I think I might have went over to
their house during that week or the next week and the door
frame was busted, and when I walked in, I asked Mrs. Ochi, I
said, "What happened to your door?"
And then [I think that's when she told me that there
was an incident.
Q. Did Mrs. Ochi call you to tell you that Michel Ochi
had been arrested?
A. No.
Q. You showed up at the Ochis' house, and that's your
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
a1
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 37
recollection as to when you found out about the arrest?
A. Correct. That's what I remember.
Q. And you don't recall what date that was on?
A. No, sir.
Q. But the door was still undone?
A. The frame was smash -- or broken, and she had told
me the police had smashed the door open.
Q. What did Margaret Ochi tell you had happened?
A. I don't remember the exact details, but it seems
like she said something about Mr. Ochi slamming a plate down,
or something, and it smashed, and I just don't remember what
she said, really.
Q. Did she tell you that Michel Ochi was in jail?
A. Yes.
Q. What was Margaret Ochi's mental condition like at
that time?
A. I think she was fine. I mean, she was upset.
Q. Did you make any effort to bail Michel Ochi out of
jail?
A. No, sir.
Q. Why not?
A. I didn't know what to do. So I do remember Max
Sheppard calling me, and he said that he had saw Mickey's
mugshot in the paper, and I remember speaking with him and he
said he was going to take care of it.
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
is
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 38
Q. Was that before or after you had learned of the
arrest through Margaret Ochi?
A. It was after I had learned.
Q How far after?
A I don't remember.
Q. Was it more than a week after?
A I don't remember.
Q Do you have any understanding as to what happened
with the criminal charges against Michel Ochi?
No, sir.
Did you ever see Michel Ochi at The Greens again?
Yes.
He returned to The Greens at some point?
PDP Oo PF
Yes.
Q. How long after April 2012 did he return to The
Greens?
A. I don't remember. Because he went to a facility
where I visited him off of 39th Avenue, and it was like a
behavioral facility, I think.
And then after that, I visited him at -- I think it
was like a dementia center at The Villages, and I
believe -- I don't remember how long he was at each facility,
but after that, he went back to The Greens.
Q. So let me just try to walk through this. So he was
incarcerated?
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
il
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 39
A. Yes, sir.
Q. And then do you understand that Max Sheppard bailed
him out?
A. Yes, sir.
Q. And what's your understanding as to where Michel
Ochi went next?
A. Well, I know where I visited him, and that was off
of 39th Avenue.
Q. Do you know whether or not he stayed with Max
Sheppard at all?
A, I believe he did.
Q. Did you ever visit Michel Ochi while he was staying
with Max Sheppard?
A. Wo, sir.
Q. Do you know whether or not Margaret Ochi did?
A. I'm not aware if she did or not.
Q. And then at some point Michel Ochi went to a
facility?
A. Well, where I visited him was off of 39th Avenue. I
don't know the name of the facility, but it was like there
were a lot of people in there and Mr. Ochi didn't know where
he was at. He was kind of out of it.
And he said to me -- he did recognize me when I
went -- you know, came to him, and he said, "This is the
strangest hospital. There's no TV, no phone."
U.S. LEGAL SUPPORT
www.uslegalsupport.com12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 40
And I said, "Well, don't worry, Mr. Ochi." I said,
"We'll get you out of here soon."
So I tried to comfort him, because I felt very bad
that he was there and kind of, you know, seemed nervous and
confused and lost.
Q. Did you take Margaret Ochi to visit Dr. Ochi,
Dr. Michel Ochi at that facility?
A. No.
MS. LESTER: Wait. Which facility?
THE WITNESS: Not the 39th Avenue, but I did take
her to visit him at the dementia center at The Villages.
Q. And how long was Michel Ochi at The Villages for?
A. I'm not exactly sure, but it might have been a month
or so. I really can't tell you. I don't know.
Q. Do you know whether or not Michel Ochi was back at
The Greens before the end of 2012?
A. I know he went back to The Greens, but I don't know
the time frame. Because the movers from the Atrium were
there, and I was there while they were moving, you know,
moving their stuff, and I actually drove Mr. and Mrs. Ochi to
the Atrium once they left The Greens.
Q. Let's talk about the time period from the incident
in April 2012 through the time period that the Ochis moved to
the Atrium.
Do you know approximately when the Ochis moved to
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 41
the Atrium?
A. I don't know the dates.
Q. Does first half of 2013 sound about right?
A. I'm not exactly sure.
Q. Were they at The Greens for more than a year after
the April 2012 incidents?
MS. LESTER: Object to the form.
You can answer.
A. I don't think so.
Q. At this point in time, did you consider yourself to
be Margaret Ochi's primary caretaker?
A. No.
Q. What did you do for Margaret Ochi during this time
period?
A. Which time period?
Q. I'm talking April 2012 through the time the Ochis
moved to the Atrium.
A. I was just like their grandson, I mean, while they
lived at The Greens.
And then when they went to the Atrium, I went and
visited them more often. Especially the first week or two
weeks that they were there, I visited them quite often,
almost every day, because I wanted them to feel comfortable,
you know, in their new -- in their new home.
Q. How often did you visit them before they moved to
U.S. LEGAL SUPPORT
www.uslegalsupport.com10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shannon Smyth
April 08, 2019 42
the Atrium?
A. Well, I visited them probably two or three times a
month when they lived at The Greens.
Q. Including the time period from April 2012 through
the time they moved to the Atrium, your testimony is you
visited Margaret Ochi or Margaret and Michel two to three
times a month?
A. Yeah. I visited them on a regular basis, you know,
or called them on the phone.
Q. At this point, we're talking April 2012 through the
time they moved to the Atrium, were there caretakers paid to
come to the house?
A. Not that I'm aware of.
Q. You'don't recall any paid caretakers coming to visit
the Ochis until they resided at the Atrium?
A. That's what I understand. I don't know that anybody
came.
Q. Are you aware of anybody else visiting the Ochis in
this time period from April 2012 through their move to the
Atrium at some point in 2013?
A. I'm not aware, but maybe Max Sheppar
Preview
Filing # 88702521 E-Filed 04/29/2019 05:48:12 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 FOURTH 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 [V 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 Shannon L. Smyth dated April 8, 2019 attached as Exhibit A; CERTIFICATE OF SERVICE T HEREBY CERTIFY on April 2, 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, rnw@gate.net and John Cole, Esquire, Jason Van Lenten, Esquire, Christine Sweet, Esquire, 225 Water Street, "2015 CA 004330" 88702521 Filed at Alachua County Clerk 04/30/2019 08:15:00 AM EDTSuite 1750, Jacksonville, FL 32202, jcole@gunster.com, jvanlenten@@gunster.com, esweet(@gunster.com, wnystrom@gunster.com, sjustice(@eunster,com. SALTER FEIBER, P.A. Jennifer @ates4.ester 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 Attorney for Defendant, ‘Shannon Smyth10 a1 12 13 14 i5 16 17 18 139 20 21 22 23 24 25 Shannon Smyth April 08, 2019 IN THE CIRCUIT COURT OF FLORIDA, EIGHTH JUDICIAL CIRCUIT, IN AND FOR ALACHUA COUNTY, FLORIDA CASE NO.: 01-2015-CA-4330 RICHARD M. WHITE, as Trustee of The Michel K. and Margaret D. Ochi Revocable Trust Agreement; UNIVERSITY OF FLORIDA FOUNDATION, INC.; and UNIVERSITY OF MARY WASHINGTON FOUNDATION, Plaintiffs, vs. SHANNON L. SMYTH, Defendant . VIDEO-RECORDED DEPOSITION OF: SHANNON L. SMYTH DATE TAKEN: April 8, 2019 TIME: 10:05 a.m. - 12:08 p.m. 1:05 p.m. ~ 3:47 p.m. PLACE: Salter Feiber, P.A. 3940 Northwest 16th Boulevard Building B Gainesville, TAKEN BEFORE: Notary Public U.S. LEGAL SUPPORT www.uslegalsupport.com Florida 32605 Lynn Marie Durscher, RPR, CRR, EXHIBIT {\10 11 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 APPEARANCES: APPEARING ON BEHALF OF THE PLAINTIFFS UNIVERSITY OF MARY WASHINGTON FOUNDATION: JASON P. VAN LENTEN, ESQUIRE Gunster, Yoakley & Stewart, P.A. 225 Water Street, Suite 1750 Jacksonville, Florida 32202 jvanlenten@gunster.com APPEARING ON BEHALF OF THE DEFENDANT SHANNON L. SMYTH: JENNIFER CATES LESTER, ESQUIRE STAR M. SANSONE, ESQUIRE Salter Feiber, P.A. 3940 Northwest 16th Boulevard Building B Gainesville, Florida 32605 jenniferlesalterlaw.net stars@salterlaw.net ALSO PRESENT: John E. Knight, Esquire University of Florida Foundation, Inc. Sarah J. Loiler, Videographer U.S. LEGAL SUPPORT www.uslegalsupport.com UNIVERSITY OF FLORIDA FOUNDATION, INC., and10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 3 INDEX April 8, 2019 VIDEO-RECORDED DEPOSITION OF: SHANNON L. SMYTH Direct Examination by Mr. Van Lenten 7 Cross-Examination by Ms. Lester 161 Redirect Examination by Mr. Van Lenten 164 CERTIFICATE OF REPORTER 168 CERTIFICATE OF OATH 169 U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 EXHIBITS Plaintiffs' Exhibit 1 (Florida Living Will Declaration) Plaintiffs' Exhibit 2 (Florida Designation of Health Care Surrogate) Plaintiffs' Exhibit 3 (E-mail dated 5/2/13 from Max to Shannon) Plaintiffis' Exhibit 4 (B-mail dated 6/14/13 from Max to Shannon) Plaintiffs' Exhibit 5 (E-mail dated 6/28/13 from Max to Shannon) Plaintiffs’ Exhibit 6 (E-mail dated 7/16/13 from Max to Shannon) Plaintiffs' Exhibit 7 (E-mail dated 8/5/13 from Max to Shannon) Plaintiffs' Exhibit 8 (E-mail chain; Subject: Note from Max Sheppard) Plaintiffs' Exhibit ¢ (Last Will and Testament of Margaret D. Ochi) Plaintiffs' Exhibit 10 (E-mail chain; Subject: Tax Return) Plaintiffs' Exhibit 11 (E-mail chain; Subject: Tax Return) Plaintiffs' Exhibit 12 (E-mail chain; Subject: Mrs. Ochi) Plaintiffs’ Exhibit 13 (E-mail chain; Subject: Tax Return) Plaintiffs' Exhibit 14 (E-mail dated 6/19/13; Subject: Mr. Ochi Tax Returns Plaintiffs' Exhibit 15 (E-mail chain; Subject: Mrs. Ochi Taxes Plaintiffs' Exhibit 16 (E-mail dated 3/1/14; Subject: Mr. Ochi) U.S. LEGAL SUPPORT www.uslegalsupport.com 20 21 57 58 59 61 61 62 65 83 84 86 87 92 93 9510 il 12 13 14 is 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 5 EXHIBITS Plaintiffs' Exhibit 17 96 (E-mail chain; Subject: Mr. Ochi) Plaintiffs' Exhibit 18 102 (g-mail chain; Subject: Tax Return) Plaintiffs' Exhibit 19 103 (E-mail chain; Subject: Mrs. Ochi's Tax Return) Plaintiffs' Exhibit 20 105 (E-mail chain; Subject: Tax Return) Plaintiffs' Exhibit 21 106 (B-mail chain; Subject: Tax Return) Plaintiffs' Exhibit 22 109 {E-mail chain; Subject: Mrs. Ochi) Plaintiffs' Exhibit 23 Lil (E-mail chain; Subject: Mrs. Ochi 2014 Taxes) Plaintiffs' Exhibit 24 114 (E-mail chain; Subject: Tax Return) Plaintiffs' Exhibit 25 121 (Morgan Stanley check; BOA deposit ticket; e-mails) Plaintiffs' Exhibit 26 125 (Morgan Stanley check; BOA deposit ticket) Plaintiffs' Exhibit 27 128 (SunTrust check; BOA deposit ticket) Plaintiffs' Exhibit 28 130 (Florida Credit Union cashier's checks; BOA deposit ticket) Plaintiffs' Exhibit 29 130 (Wells Fargo cashier's check/BOA deposit ticket) Plaintiffs' Exhibit 30 131 (Florida Capital Bank check; BOA deposit ticket Plaintiffs' Exhibit 31 146 (Shannon Smyth's Notice of Serving Answers to Plaintiffs' First Interrogatories) U.S. LEGAL SUPPORT www.uslegalsupport.com15 16 17 18 13 20 21 22 23 24 25 Shannon Smyth April 08, 2019 6 P-R-O-C-E-E-D-I-N-G-S THE VIDEOGRAPHER: It is April 8, 2019, at 10:05 a.m., and we are on the video record. THE COURT REPORTER: Good morning. We are now on the video record. Today is the 8th day of April, 2019. The time is 9:54 (sic) a.m. We are here at the Law Offices of Salter Feiber at 3940 Northwest 16th Boulevard, Building B, Gainesville, Florida, for the purpose of taking the video deposition of Shannon L. Smyth taken by the Plaintiffs University of Florida Foundation, Inc., and University of Mary Washington Foundation in Case No. 01-2015-CA-4330, Richard M. White, as Trustee of the Michel K. and Margaret D. Ochi Revocable Trust Agreement, University of Florida Foundation, Inc., and University of Mary Washington Foundation, Plaintiffs, v. Shannon L. Smyth, Defendant, which is filed in the Eighth Judicial Circuit of Alachua County, Florida. The court reporter is Lynn Durscher of US Legal Support. The videographer is Sarah Loiler of US Legal Support. Would all counsel please state their appearance for the record. MR. VAN LENTEN: Jason Van Lenten on behalf of the Plaintiffs University of Florida Foundation, Inc., and U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 7 University of Mary Washington Foundation. MS. LESTER: And Jennifer Lester and Star Sansone for Shannon Smyth. SHANNON L. SMYTH, having been first duly sworn to tell the truth, was examined and testified upon his oath as follows: THE WITNESS: Yes, ma'am. DIRECT EXAMINATION BY MR. VAN LENTEN: Q. Good morning, Mr. Smyth. My name is Jason Van Lenten. A. Good morning. Q. I'm an attorney for the University of Florida Foundation and Mary Washington Foundation in this litigation which you are a defendant in. Have you been deposed since your last deposition in this matter in June of 2017? A. No, sir. Q. But I do know you have been deposed previously, particularly in this case, by -- A. Yes. Q. -- a former coparty. A. Yes, sir. Q. I'll just be very brief in going through the instructions. We would ask that your answers be verbal so U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 Shannon Smyth April 08, 2019 ) that the court reporter on my left could take down your response. Nods of the head don't work so well -- A. Okay. Yes. Q. -- in the stenographic transcript. A. Yes, sir. Q. I would ask you to please let me finish my question before you respond. This is going to help a variety of ways. It's going to help the court reporter take down my full question, take the full response rather than having overlap between us talking, and it will also allow your counsel, Ms. Lester, to object as appropriate. If at any time you need a break, we would ask you to answer whatever pending question might have been asked, and then you will be entitled to your break. Okay. Any questions? No, sir. Please state your date of birth. And where do you currently reside? Tie | el e\2 & I live in Burberry Ponds off 7811 Northwest 44th Street, Gainesville, Florida. Q. And what is the mailing address? A. 7811 Northwest 44th Street, Gainesville, Florida 32653. U.S. LEGAL SUPPORT www.uslegalsupport .com10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 9 Q. And how long have you resided at that address? A. I believe in August will be 10 years. Q. Have you had any change in your employment status since your last deposition in June 2017? A. The company I worked for, CH2M Hill, was acquired by Jacobs Engineering firm, the largest engineering firm in the world, and I still work for the same company, but it was merged, so they changed the name. Q. Well, congratulations on that. A. Thank you. I made the cut. Q. Now, I understand from your prior deposition that you met the Ochis around 1980. Does that sound roughly correct? A. Yes, sir. Q. Can you tell me a little bit about the first time you met the Ochis? A. sure. I remember I was in middle school. I was in sixth grade, and my bus stop was in front of Mr. Ochi's property where hé was building a house or having a house built, and Mr. Ochi would come out to check on his property two or three times a week. And I was at the bus stop, you know, waiting for my bus, so Mr. Ochi would always talk to me and show me the, you know, plans on his home that he was going to put there, and he would show me the position of the -- how it was going to sit on the lot. And we just U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 10 became friends because he came out so often, you know, to check on his property, and we just became, you know, close friends, you know, over the years. Q. And I'm going to focus on the first 10 years after you met the Ochis. If it was approximately in 1980 when you met them -- A. Yes, sir. Q -- you would have been approximately 13 years old? A I'd say 12 or 13. Yes, sir. Q. Let's fast forward about eight years to around 1988. A Okay. Q. And in 1988 you would have been 20 or 21 years old; is that correct? A. I'm not so great with math right off my head here, but, yes, I think so. Q. What was your relationship with the Ochis at that time? A. Well, let's see. I graduated in '86, so I had become really very close with the Ochis. They were -- they were like grandparents to me. They came to my graduation. I worked at the same office building that Mr. Ochi worked in, which was at the College of Engineering. Mr. Ochi got me that job because I was in school, you know, at Santa Fe College for graphic design, and he got me a job as a graphic designer or, you know, becoming a graphic designer for the ene sinemectrehetinrentitneiaenirenietinntnteeinintniaiunnaantianinmnssnen U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22. 23 24 25 Shannon Smyth April 08, 2019 11 publication services at the building that he worked, so we were really close. Q. Are there any other ways in which you believed the Ochis treated you like a grandchild in and around 1988? A. Yes. I mean, like I said, they came to my graduation. I had dinners with them. I would see them every Christmas, Thanksgiving, Easter, all the holidays. I never missed their birthdays. They never missed my birthdays. So we were, you know, like family. Q. So when you were 20 years old in 1988, how often, approximately, did you see the Ochis? A. Well, I would go to their house for dinner. Mr. Ochi would fix, you know, this shrimp tempura. You know, he loved it and I loved it, and he would have me out for dinner at least once -- I would say at least maybe once a month, and I called them on the phone quite often, and, you know, we just -- we stayed in touch all the time. Q. Other than dinners approximately once a month and phone calls, did you go over during this time period to visit the Ochis for any other reasons? A. Well, I visited them on Christmas and Thanksgiving and Easter and their birthdays. I never missed their birthdays. Sometimes they would take me out to dinner. You know, we would go to a restaurant someplace, you know, different places. | U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 12 I took care of their animals and their, you know, or house when they left the country. You know, they would go on vacations, and I always took care of their animals. And, you know, they had lots of plants, so I took care of all their plants and everything. Q. What was Michel Ochi's physical condition like in 1988? A. It's been a long time ago, so I -- I don't really remember exactly. I mean, he was -- seemed fine to me. Q. What about Margaret Ochi and her physical condition? She seemed fine. Was she walking on her own in 1988? I believe so. Was she driving in 1988? Yes. Did she have any hearing problems in 1988? > oP oO Pp Oo Pp I'm not aware of that. I didn't see any hearing aids or anything like that. Q. What about the physical condition -- strike that. What about the mental condition of Michel Ochi in 1986? A. I think he was fine. I don't know. I mean, it didn't seem -- he didn't seem, you know, odd or anything to me in 1988. Q. What about Margaret Ochi and her mental condition in U.S. LEGAL SUPPORT www.uslegalsupport.com10 121 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 13 1988? A. She was also fine. Q. Were you aware of any other friends that the Ochis had in 1988? A. Max Sheppard. They were friends with Alicia and Max Sheppard. I assume they knew their neighbors, you know, in the neighborhood. I believe at that time they still lived in The Hammock, and they might have been friends with the Hemps. I don't remember -- Gene Hemp and, you know, he -- I'm sure he had his professors from the university that he might have been friends with. I'm not really sure. Q. In 1988 did the Ochis ever mention their wills to you? A. I don't remember. Q. Did they ever mention their testamentary intent? And when I say "testamentary intent," what they wanted to happen to their assets after they died. A. I remember at a dinner one time, when I was out at their house, they had mentioned something about -- I don't know if they said their will or their trust. I can't remember exactly what they said, but they had mentioned something about, you know, my future, you know, something | Like that, but it's been so long ago, I really don't remember | exactly what it was. U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Shannon Smyth April 08, 2019 14 It was at a dinner at their house. I do remember the two of them. Q. And when do you recall this dinner occurring? A. It seems like it was in maybe '88 or '89. I'm not sure to tell you -- it's just been a long time ago. Q. But it would seem correct that this conversation occurred when you were in your early 20's? A. Yes. Because I remember, when I got my first job, and I know Mrs. Ochi, you know, she -- she's the one that actually told me that I should start my 401(k) because she was, you know, really excited that I got a job at an engineering company, and she said I needed to, you know, start the 401(k) as soon as possible, you know, and no matter what I do, don't touch it. You know, put as much as I could, much money as I could, you know, afford to do, and she was a mentor to me. Mr. and Mrs. Ochi both were, like, mentors, and I looked up to them. They were like, you know, the smartest people that I've ever met, and so I just admired them and, you know, I did what they told me to do. Like, I respected them so much. So it was just very, you know, very nice to have someone like that in your life. Do you know who Evelyn Giesler is? A. No. Q. Do you know who Mary Catherine Enright is? U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 15 A. No. That -- I don't know. I don't know the name. The last name I don't know. Q. Do you know who Samuel Edward Lee is? No. What about Huruko Murakami, do you know who that is? No. oP oF Who is Lewis Motter? A. That is friends of the Ochis that live in Maryland. I'm assuming they still live in Maryland, but they were -- they were good friends of the Ochis, and I believe Lew Motter worked for Mrs. Ochi at the Model Basin in Washington. Q. So it's your understanding that Lewis Motter worked with Margaret Ochi? A. Yes. Q. Did Lewis Motter ever live in Florida? A. Not that I'm aware of. Q. Did you ever see Lewis Motter in Florida? A. Yes. Q. How often? A, I remember meeting him in the early '80s, I believe, and I've seen him several times after -- let's see, several times probably since the Ochis moved to the Atrium. It seems like at least once or twice I might have seen them. I can't really remember. Q. During this time period around 1988, how often did U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 16 you see the Ochis with Max Sheppard and Max Sheppard's wife? B. I saw them, Max, you know, I went to dinner with them for Mrs. Ochi's birthday, and I did see Max, you know, occasionally he would stop by the apartment at the Atrium and visit Mrs. Ochi. I talked to Max on the phone, you know, and text messages and e-mails quite often. So I don't have a number. I can't remember. Q. How would you categorize the relationship -- I'm sorry, characterize the relationship between the Ochis and the Sheppards in 1988? A. I know they were friends, because I believe that the Ochis would go to their house sometimes during Christmas, I believe, for Christmas dinner. I believe Mrs. Ochi had told me that. Q. I'm going to shift gears now and talk about the time period between 1988 and 2001. And I know you told me you're not good at math. A. Yeah. Q. But 1988 to 2001, that would roughly correspond to when you were aged 21 through 34 or so; correct? A. I would say so. Q. What was your involvement in the Ochis' life like during this time period? A. It was the same as I've always had. I would visit U.S. LEGAL SUPPORT www.uslegalsupport.com12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 17 them quite often, you know, birthdays, Christmas, Thanksgiving, Easter. They all -- they never missed my birthday. I had bought a townhome and I believe it was around 1990-ish, I think, and Mrs. Ochi would come to my house and she actually bought me my first -- she said a young man needs crystal glasses for entertaining, and she bought me crystal glasses, and she bought me stuff for my dining room that -- you know, she looked around the house and she saw the colors and schemes, and she bought me stuff like that. And she would always come over. She knew I liked German chocolate cake, so she would always make a German chocolate cake for me and bring it to my home. Q. So Mrs. Ochi made these gifts to you between the ages of 21 and 34? A. Yes. Q. Anything else that the Ochis bought for you during that time period? A. You know, when they would go on trips, they would bring me souvenirs back from wherever they went. I -- you know, like souvenirs and things like that, and, you know, they would usually -- for Christmas I would always get a gift. If they didn't give me a gift, they would give me, like, $50 or, you know, a check or cash, and, you know, for my birthdays as well. U.S. LEGAL SUPPORT www.uslegalsupport.com10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 18 Q. Other than the gifts and the relationship, was there any -- let me strike that. Did you still consider that the Ochis treated you like a grandchild during this time period? A. Yes. Q. Other than the gifts and the visits, were there any other reasons you felt that they treated you like a grandchild during this time? A. Well, they were just like family to me. You know, I always thought of them, you know, all the time. If I hadn't heard from them in a few days or in a few weeks, I'd give them a call, and if they hadn't heard from me, they would call me and ask how I was doing. They, you know, always just -- you know, I loved them, and I think they loved me. And we were just, like -- you know, I wasn't close to my grandparents because they lived like two states away, so I sort of adopted the Ochis as my grandparents, and I think they had no children, so I think they adopted me as their grandchild. And, you know, Mrs. Ochi actually would tell people sometimes, she'd say, you know, that, when she introduced me, she would say I was her grandson or her God son. You know, she would introduce me that way. And, you know, we just were close, you know. Q. Where did the Ochis live in 1988? U.S. LEGAL SUPPORT www.uslegalsupport.com10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 19 A. I believe they lived in The Hammock off Millhopper Road. Q. At some point in the next 13 years, the time period from 1988 through 2001, did the Ochis move out of The Hammock? A. Yes, sir. Q. Where did they move to? A. They ended up moving. They bought a condo in, I think it's called, The Greens at West End. It was like a three-bedroom with a garage condo. They wanted to downsize because Mr. and Mrs. Ochi told me their house was pretty large and the yard, you know, was a lot of upkeep, and so they wanted to, you know, have a smaller space with less maintenance. Q. Do you know whether or not they moved from The Hammock to The Greens at the beginning of the period from 1988 through 2001, in the middle of that period, or towards the end of that period? A. I'm not really sure. Q. But you recall that in 2001 they resided in The Greens? A. I'm not good with dates, so I don't know the date that they lived there, but I know that they moved from The Hammock to The Greens. I don't know the dates. Q. In that period, 1988 through 2001, did the Ochis U.S. LEGAL SUPPORT www.uslegalsupport .com10 11 12 13 14 15 16 17 18 19 20 2l 22 23 24 25 Shannon Smyth April 08, 2019 20 ever mention their testamentary intent to you? A. I don't remember. Q. In 2001 do you recall them telling you that they were meeting with an attorney to work on estate planning documents? A. No. Q. Were you aware that they were meeting with an attorney in 2001 to work on estate planning documents? A. No. (Thereupon, Plaintiffs' Exhibit 1 was marked for identification.) BY MR. VAN LENTEN: Q. Mr. Smyth, I'm going to hand you a document that I have marked as Plaintiffs' Exhibit 1. And you can take your time. I'm going to ask you to take a look at this. Do you know what this document is? A. No, sir. Q. If you turn to the second page of this document and go to the bottom -- A. Oh, okay. Q. -- is that your signature at the bottom of the second page of Exhibit 1? A. Yes, it is. Q. Does that refresh your recollection as to what this U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 21 document is? A. I do remember Mr. Ochi coming to my office when I worked off of Williston Road at CH2M Hill, and he asked me if I would sign something for him, and I said, "Of course." And I do remember signing this. I didn't read it, because he didn't sit there and tell me to read it. He just said would I be a witness or something, and I do remember him coming to my office off of Williston Road. I didn't know what it was. Q. Was Margaret Ochi with him? A. No. Q. Margaret Ochi was not with him on November 9, 2001, when this document was signed? A, No. Q. Are you sure about that? A. Yes. (Thereupon, Plaintiffs' Exhibit 2 was marked for identification.) BY MR. VAN LENTEN: Q. Mr. Smyth -- A. Yes, sir. Q. -- I'm going to hand you a document that's been marked as Plaintiffs' Exhibit 2. Please take a look at that. Is that your signature on page 2 of Plaintiffs' Exhibit 2? U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 Shannon Smyth April 08, 2019 22 A. Yes. Q. Do you recall what this document is? A. It looks like the same as the other one. Q. Would you have signed this document on the same date that you signed Exhibit 1? A. I think, yes. Q. And was Margaret Ochi present when you signed this document ? A. No. Q. When you met with Michel Ochi to sign documents -- I'm sorry, Exhibits 1 and 2, did he say anything to you about meeting with attorneys to work on wills and/or trusts? A. No, sir. Q. So when you signed Exhibit 1 and 2, you were not aware that the Ochis had been consulting with an estate planning attorney? A. No, sir. Q. How would you describe Michel Ochi's mental condition in 2001? A. I don't remember, but I think he was okay. | Q. Did you make any observations of Michel Ochi around the 2001 time period that would lead you to believe that he | might have been lacking in capacity? A. No, sir. U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 23 Q. What about Margaret Ochi, did you have any concerns as to her mental capacity around 2001? A. No, sir. In 2002 you were age 35; correct? I guess so. Roughly. Q A Q A. I think so. Q Roughly age 35. A Yes, sir. Q None of us are very good at math. I'll stipulate to A. I feel like I'm getting so old now. Q. Yeah, if I was good at math, I'd be an engineer instead of a lawyer and probably a lot happier, so... A. Yes, sir. Q. In 2002 had your involvement with the Ochis become more or less or about the same as it was in the prior years? A. I would say about the same. Q. And in 2002 where did the Ochis live? A. I'm not sure if they had moved yet, you know, from The Hammock or The Greens. They either lived at The Hammock or they lived at The Greens, because that's the only two places they lived until they moved to the Atrium. Q. Is there a point in time when you're sure that the Ochis had moved to The Greens? U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 24 A. Oh, yes, because I remember they had movers help them, and when they moved everything, they -- all their furniture was jumbled up in the house, and I went over and helped them get everything straightened up and situated, and I helped Mr. Ochi hook his computer up and his printer. And so I know they had moved, but I just don't remember dates, you know. Q. What's the latest date that you think they could have moved? Stated differently, is there a point in time, say in 2005, for instance, where you're sure that they had moved by that point? A. I know that they were there in 2007 because I hada 2007 car that I had gotten and I drove to that place. So I know it had to have been in 2007, but I'm not exactly sure, you know, before that. But I know for sure I did have a car, the 2007 car, and I went to see them in that car, so I do remember that. Q. Did the Ochis ever tell you in 2002 that they had signed wills? A. No, sir. Q. Did they ever tell you that they had created a revocable trust? A. No, sir. Q. Did they ever mention any other testamentary intent U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 25 at that time? A. No, sir, not that I can remember. Q. Any changes in Michel Ochi's mental condition in A. Not that I'm aware of. Q. Any changes in Margaret Ochi's mental condition in A. No, sir, not that I'm aware of. Q. To the best of your understanding, both of the Ochis were in full possession of their faculties in 2002? A. Yes, sir. Q. Was Margaret walking on her own in 2002? A. I can't remember exactly because I know she had a knee replacement and so -- but I don't remember when that was, but I do know she actually had both knees -- you know, her knees replaced, and so I remember at one time, when she lived at The Greens, I remember she had a cane. Q. Was Margaret driving on her own in 2002? A. Yes, sir, I believe so. Q. Did Margaret have any hearing issues in 2002? A. Not that I'm aware of. Q. Did there come a point in time where Margaret had hearing issues? A. Yes, sir. Q. Did Margaret need any assistance with making U.S. LEGAL SUPPORT www.uslegalsupport.com10 iL 12 13 14 15 16 17 18 19 20 al 22 23 24 25 Shannon Smyth April 08, 2019 26 appointments in 2002? A. Excuse me. Not that I'm aware of. Q. Did Margaret need any assistance in running errands in 2002? A. I don't believe so. Q. Did Margaret need any assistance in paying her taxes in 2002? A. Not that I'm aware of, other than she might have used her CPA or her accountant. I don't know. Q. All right, Mr. Smyth, we're going to now shift gears and talk about the next five-year period, 2003 to, we'll say, 2007, which is the point at which we know that the Ochis were now at The Greens. A, Yes, sir. Q. 2003 through 2007 you were approximately age 35 through 39, just about 40. Does that sound right? A. I guess so. Q. At this point in time, did you still consider the Ochis to be like grandchildren? A. I felt like they were grandparents. Q. All right. I should probably withdraw that question. How so? What did they do in this time period when you were age 35 through age 40 that made you feel like you U.S. LEGAL SUPPORT www.uslegalsupport.com10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 27 were a grandchild to them? A. Well, since I've known them since I was 12 to 13 years old and I've always been close, tight to them, the feelings and only got stronger over the years. So, you know, like I said, I never missed -- they never missed my birthday. I never missed their birthdays. Christmas, Easter, Thanksgiving, I always went to see them. You know, I brought them flowers or gifts or fruit baskets because they liked that, and so we always were just very close. You know, I called them all the time. They called me quite often, and they were family to me. Q. Did they have friends during this time period? A. Yes. I believe they had Max Sheppard, and I believe they stayed in touch with the Motters. Q. Anybody else? A. I really don't know their -- they were sort of, you know, loners, so I don't know their social circle, you know. At The Greens, they might have had their neighbors as friends and things, but, you know, I never really heard her mention it. Q. Now, you just mentioned that the Ochis were sort of like loners. What do you mean by that? A. Well, they were together. They were their -- you know, they hung out together by theirselves. They, you know, they didn't really -- I don't remember them going a lot of U.S. LEGAL SUPPORT www.uslegalsupport.com10 il 12 13 14 15 16 17 18 19 20 al 22 23 24 25 Shannon Smyth April 08, 2019 28 places with people other than me and then probably the Ochis -- the Max Sheppard's wife and Max and the Motters, you know, when they came to town. So I just didn't see them with, you know, other people. Q. Did you consider them to be private people? A. I would say they were private. Q. During this time period, 2003 through 2007, was there any change in the Ochis', either Michel's or Margaret's, mental condition? A. Not that I'm aware of. Dates, you know, I just really don't know the dates, you know. Q. Okay. Now, let's --. well, first, are you aware of some incidents involving Michel Ochi that occurred in April 2012? A. Yes. Q. Do you understand that at some point in April of 2012 Dr. Ochi, Dr. Michel Ochi was Baker Acted? A. Yes. Q. And as you sit here today, do you understand that at some point in April 2012 Dr. Michel Ochi was incarcerated? A. Correct. Q. Let's talk about the five-year period beginning around 2008 when we're sure that the Ochis lived in The Greens until the early part of 2012 before the incidents that occurred in April. U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 29 A. Okay. Q. Okay? A. Yes, sir. Q. You were approximately age 40 through 44, early 40's during this time period. Does that sound right? A. Sounds right. Q. Do you think that the Ochis continued to treat you as a grandchild during this time period? A. Yes, sir. Q. Anything different in your relationship with the Ochis other than from what you have previously testified to? A. No. I would say towards, I guess, maybe towards the end towards 2012 I would call them more often and go visit them more often. Q. During this entire time period, 2008 through the beginning of 2012, the Ochis lived at The Greens; correct? A. I -- I think so. If they were not at The Hammock, they were at The Greens. Q. Okay. Assuming that they had moved to The Greens in 2008 -- A. Yes, sir. Q. -- then they would have lived at The Greens during this entire time period through 2012; correct? A. Correct. Q. Did the Ochis have friends during this time period? U.S. LEGAL SUPPORT www.uslegalsupport.com10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 30 A. I don't know. Q. Were they still friends with Max Sheppard and his wife? A. I believe so. Q. Did you ever see Max Sheppard and his wife when you visited the Ochis during this time period? A. No. Q. How often did you visit the Ochis at The Greens during this time period? A. I would say that I went out there maybe two to three times a month, if not more. Q. How would you describe Michel Ochi's physical condition during this time period? A. I would say towards the end of the time frame, he was not looking like himself. You know, his appearance had changed. Mr. Ochi used to always be, you know, very dressed to the T. I mean, he was very -- bless you. He was just very well groomed. His hair was nice, you know, and I noticed that he started to look kind of like a bum. You know, his pants were kind of ripped. The knees were ripped. He tied his pants up with a rope instead of a belt. His beard was unshaved and gray and long, which was not like him. His hair was all gray and long and not like himself. So I did notice that, and he always wanted to stay U.S. LEGAL SUPPORT www.uslegalsupport.com10 al 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 31 in the bed. When I would come over to visit, Mrs. Ochi would say, "Mickey, you need to get up. Shannon's here to come visit." And, you know, it was like, you know, it's just like he always wanted to just stay in the bed it seemed like. So I -- I noticed that difference. Q. And you started noticing these differences in Michel Ochi's physical appearance by the end of 2011? A. I would say it was in that time frame, 2011 to '12, somewhere around there. Q. And it was before April 2012 you made these observations? A. Yes. Q. Did you ever talk to Michel about -- to try to help him with his grooming and to help try to get him out of bed? A. No, I didn't want to disrespect him, you know, or make him feel uncomfortable. He would tell me -- I'm quoting him. He would say, "Shannon, I'm just so lazy." That was the term that he would use. "I'm just so lazy these days." Q. Do you know if Margaret Ochi undertook any efforts to improve Dr. Ochi's physical sdpdadarled gad vitality during this time period? A. I'm not sure. Q. How would you describe Margaret Ochi's physical U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 32 condition during this same time period? A. I think she was fine. You know, I think that she was slowing down, you know, a little bit. She had a cane, so -- but she seemed fine to me. Q. So focusing on the early parts of 2012 before the incidents in April, was Margaret Ochi walking on her own? A. Yes. Q With the assistance of a cane? A Yes. Q. Was Margaret Ochi driving? A I don't know if she was driving at that time or not. Q. You're not sure whether or not Margaret Ochi was driving at the beginning of 2012? A. I know at one point she got her license taken away, but I don't know the dates. Q. What do you understand as to the reasons why Margaret Ochi lost her driver's license? A. Well, I know what she told me. Q. What did Margaret Ochi tell you? A. She said that she was down at the gym. They had a gym at the facility where they lived, and it was at the front. She told me that she had driven her car down there and she had parked in the handicapped space, and she was working out, and she told me that she had gotten overheated and felt faint. U.S. LEGAL SUPPORT www.uslegalsupport.com10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 33 So she said she went to her car, and she started the car to sit in the air-conditioning. And she said she was kind of slumped over a little, and she said some person -- she didn't know if they lived there or someone visiting, but she said some person knocked on the window, and she rolled the window down, and asked how she was. And what she told me was they asked where she lived, and they shoved her over and drove her home, and if I know Mrs. Ochi, which I do, she most likely cursed them out for, you know, doing that. And she told me she thinks because of that they reported her to the DMV, and they took her license. That's what she told me. Q. Are you aware of the DCF doing an investigation into Margaret Ochi? A. No. Q. Were there caretakers who worked with the Ochis at The Greens in the early parts of 2012? A. Not that I'm aware of. Q. Did there come a point in time when caretakers started going to the Ochis' house? A. I remember Mrs. Ochi saying she had food delivered at one time, but she said it was lousy, so she didn't want to continue paying for it. But I don't remember any person. I never saw any person there while I was there. U.S. LEGAL SUPPORT www.uslegalsupport.com13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 34 Q. Do you recall any caretakers helping Margaret Ochi prior to April 2012? A. No. Q. In the early part of 2012, did Margaret Ochi need any assistance in making her appointments? A. I think she made her own appointments, but she might have needed assistance getting to those appointments. Q. In the early portions of 2012, do you know how she would have been taken to the appointments? A. Well, if she called me, I would take her whenever she called and asked me to take her. If I was off work, you know, I would try to arrange to take her wherever she wanted. I always took her, if she asked me to take her someplace, I took her. Q. Do you know -- A. And Mr. Ochi, I think he might have driven her places while they lived at The Greens, but I don't know for how long, and I don't know if neighbors might have taken her or Max. I really don't know. Q. So it's your understanding that, in the early portion of 2012, that Michel Ochi was driving? A. I believe that he still had his license, and I believe he might have been driving. I don't know how good he drove, but I'm not sure exactly, to tell you the truth. Q. Did the Ochis need any assistance with their taxes U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 35 in the early portion of 2012? A. I don't know. I assumed their CPA or accountant helped them. Q. Did either of the Ochis need any assistance in writing checks in the early portions of 2012? A. Not that I'm aware of. Q. Did either Michel or Margaret Ochi need any assistance on their banking and financial transactions in the early portions of 2012? A. Not that I'm aware of. Q. Did you assist them with any of these things in the early portions of 2012? A. Not that I can remember. Q. Other than occasionally driving Mrs. Ochi to appointments? A. Correct. Q. What's your understanding of the Baker Act proceedings involving Dr. Ochi? A. I'm not sure I understand the question. Q. As you sit here today, are you aware that there was some kind of Baker Act proceedings relating to Dr. Ochi that took place in April of 2012? A. Well, I knew that he wasn't allowed to go home back to The Greens. Q. I'm asking what's your understanding of what U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 36 transpired. A. Oh. Well, what I understand is that there was some kind of disagreement or argument or something with Mr. and Mrs. Ochi, and Mr. Ochi ended up going to jail. So I don't know all the details. I just know that he wasn't allowed to go back home. Q. So when I talk about the Baker Act proceedings, in your mind is there any difference between Baker Act proceedings and the incarceration? A. I don't know. Q. So your understanding is you're aware that Dr. Ochi was arrested at some point in April 2012? A. Yes, sir. Q. When did you -- well, how did you first find out about this? A. I can't remember. I think I might have went over to their house during that week or the next week and the door frame was busted, and when I walked in, I asked Mrs. Ochi, I said, "What happened to your door?" And then [I think that's when she told me that there was an incident. Q. Did Mrs. Ochi call you to tell you that Michel Ochi had been arrested? A. No. Q. You showed up at the Ochis' house, and that's your U.S. LEGAL SUPPORT www.uslegalsupport.com10 a1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 37 recollection as to when you found out about the arrest? A. Correct. That's what I remember. Q. And you don't recall what date that was on? A. No, sir. Q. But the door was still undone? A. The frame was smash -- or broken, and she had told me the police had smashed the door open. Q. What did Margaret Ochi tell you had happened? A. I don't remember the exact details, but it seems like she said something about Mr. Ochi slamming a plate down, or something, and it smashed, and I just don't remember what she said, really. Q. Did she tell you that Michel Ochi was in jail? A. Yes. Q. What was Margaret Ochi's mental condition like at that time? A. I think she was fine. I mean, she was upset. Q. Did you make any effort to bail Michel Ochi out of jail? A. No, sir. Q. Why not? A. I didn't know what to do. So I do remember Max Sheppard calling me, and he said that he had saw Mickey's mugshot in the paper, and I remember speaking with him and he said he was going to take care of it. U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 38 Q. Was that before or after you had learned of the arrest through Margaret Ochi? A. It was after I had learned. Q How far after? A I don't remember. Q. Was it more than a week after? A I don't remember. Q Do you have any understanding as to what happened with the criminal charges against Michel Ochi? No, sir. Did you ever see Michel Ochi at The Greens again? Yes. He returned to The Greens at some point? PDP Oo PF Yes. Q. How long after April 2012 did he return to The Greens? A. I don't remember. Because he went to a facility where I visited him off of 39th Avenue, and it was like a behavioral facility, I think. And then after that, I visited him at -- I think it was like a dementia center at The Villages, and I believe -- I don't remember how long he was at each facility, but after that, he went back to The Greens. Q. So let me just try to walk through this. So he was incarcerated? U.S. LEGAL SUPPORT www.uslegalsupport.com10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 39 A. Yes, sir. Q. And then do you understand that Max Sheppard bailed him out? A. Yes, sir. Q. And what's your understanding as to where Michel Ochi went next? A. Well, I know where I visited him, and that was off of 39th Avenue. Q. Do you know whether or not he stayed with Max Sheppard at all? A, I believe he did. Q. Did you ever visit Michel Ochi while he was staying with Max Sheppard? A. Wo, sir. Q. Do you know whether or not Margaret Ochi did? A. I'm not aware if she did or not. Q. And then at some point Michel Ochi went to a facility? A. Well, where I visited him was off of 39th Avenue. I don't know the name of the facility, but it was like there were a lot of people in there and Mr. Ochi didn't know where he was at. He was kind of out of it. And he said to me -- he did recognize me when I went -- you know, came to him, and he said, "This is the strangest hospital. There's no TV, no phone." U.S. LEGAL SUPPORT www.uslegalsupport.com12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 40 And I said, "Well, don't worry, Mr. Ochi." I said, "We'll get you out of here soon." So I tried to comfort him, because I felt very bad that he was there and kind of, you know, seemed nervous and confused and lost. Q. Did you take Margaret Ochi to visit Dr. Ochi, Dr. Michel Ochi at that facility? A. No. MS. LESTER: Wait. Which facility? THE WITNESS: Not the 39th Avenue, but I did take her to visit him at the dementia center at The Villages. Q. And how long was Michel Ochi at The Villages for? A. I'm not exactly sure, but it might have been a month or so. I really can't tell you. I don't know. Q. Do you know whether or not Michel Ochi was back at The Greens before the end of 2012? A. I know he went back to The Greens, but I don't know the time frame. Because the movers from the Atrium were there, and I was there while they were moving, you know, moving their stuff, and I actually drove Mr. and Mrs. Ochi to the Atrium once they left The Greens. Q. Let's talk about the time period from the incident in April 2012 through the time period that the Ochis moved to the Atrium. Do you know approximately when the Ochis moved to U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 41 the Atrium? A. I don't know the dates. Q. Does first half of 2013 sound about right? A. I'm not exactly sure. Q. Were they at The Greens for more than a year after the April 2012 incidents? MS. LESTER: Object to the form. You can answer. A. I don't think so. Q. At this point in time, did you consider yourself to be Margaret Ochi's primary caretaker? A. No. Q. What did you do for Margaret Ochi during this time period? A. Which time period? Q. I'm talking April 2012 through the time the Ochis moved to the Atrium. A. I was just like their grandson, I mean, while they lived at The Greens. And then when they went to the Atrium, I went and visited them more often. Especially the first week or two weeks that they were there, I visited them quite often, almost every day, because I wanted them to feel comfortable, you know, in their new -- in their new home. Q. How often did you visit them before they moved to U.S. LEGAL SUPPORT www.uslegalsupport.com10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shannon Smyth April 08, 2019 42 the Atrium? A. Well, I visited them probably two or three times a month when they lived at The Greens. Q. Including the time period from April 2012 through the time they moved to the Atrium, your testimony is you visited Margaret Ochi or Margaret and Michel two to three times a month? A. Yeah. I visited them on a regular basis, you know, or called them on the phone. Q. At this point, we're talking April 2012 through the time they moved to the Atrium, were there caretakers paid to come to the house? A. Not that I'm aware of. Q. You'don't recall any paid caretakers coming to visit the Ochis until they resided at the Atrium? A. That's what I understand. I don't know that anybody came. Q. Are you aware of anybody else visiting the Ochis in this time period from April 2012 through their move to the Atrium at some point in 2013? A. I'm not aware, but maybe Max Sheppar