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Filing # 88702211 E-Filed 04/29/2019 05:41:47 PM
IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT,
IN AND FOR ALACHUA COUNTY, FLORIDA
RICHARD M. WHITE, ESQ., as Successor
Trustee of The Michel K. and Margaret D. Ochi CASE NO.: 01-2015-CA-4330
Revocable Trust Agreement; UNIVERSITY
OF FLORIDA FOUNDATION, INC. and
UNIVERSITY OF MARY WASHINGTON
FOUNDATION,
Plaintiffs,
V.
SHANNON L. SMYTH and BANK OF
AMERICA, N.A.,
Defendants.
DEFENDANT’S SECOND NOTICE OF FILING SUMMARY JUDGMENT EVIDENCE
Defendant, Shannon Smyth, by and through undersigned counsel, hereby give notice of
filing the following evidence to support Defendant’s Amended Response to Plaintiffs’ Motion for
Partial Summary Judgment on Counts IV and V of the Second Amended Complaint and Cross
Motion for Summary Judgment on Plaintiffs’ Second Amended Complaint and Defendant’s First
Affirmative Defense and Incorporated Memorandum of Law filed on April 29, 2019, and set for
hearing on May 20, 2019:
i Deposition Transcript of Donald Max Sheppard dated January 12, 2017 attached as Exhibit
A;
CERTIFICATE OF SERVICE
I HEREBY CERTIFY on April a, 2019, I filed the foregoing with the Clerk of the
Court using Florida’s E-Portal System, which will provide electronic notice to the following:
Richard White, Esquire, 5303 S.W. 91“ Drive, Suite 200, Gainesville, FL 32608, rmw@vate.net
He.0Ct
"2015 CA 004330" 88702211 Filed at Alachua County Clerk 04/30/2019 08:15:00 AM EDT
and John Cole, Esquire, Jason Van Lenten, Esquire, Christine Sweet, Esquire, 225 Water Street,
Suite 1750, Jacksonville, FL 32202, jcvle@/gunster.com, jvanienten@gunster.com,
esweet@gunsier.com,
2.COM, wnystrom@gunster.com,
WNYSIT unster.com, sjustice@gunster.com.
nster.com.
SALTER FEIBER, P.A.
ed.
Jennifer Cates Lester
Florida Bar Number: 0945810
Bradford T. Willard
Florida Bar Number: 0062827
Star M. Sansone
Florida Bar Number: 113103
3940 N.W. 16th Blvd., Bldg. B
Gainesville, FL 32605
Telephone: (352) 376-8201
Je Oe t
sta Lt
(@ net
Hanno nd terlaw.net
craw. net
Attorney for Defendant, Shannon Smyth
Donald Max Sheppard
IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT
IN AND FOR THE ALACHUA COUNTY, FLORIDA
sah init i nin mt i teen eel te
DONALD MAX SHEPPARD, as
Trustee of the Michel kK. CASE NO. 01-2015-CA-4330
and Margaret D, Ochi
Revocable Trust Agreement,
Plaintiff,
vs,
SHANNON L. SMYTH and BANK OF
AMERICA, N.A. a National Banking
Association,
Defendants.
cnt inh Sei ti nnn nett emer tation tent nn neo
DEPOSITION OF DONALD MAX SHEPPARD
Taken by the Defendant Smyth
January 12, 2017
Keith Rusk Reporting
Montrose, 970-249-5503 Grand Junction, 970-245-9000
Serving Western Colorado Since 1981
XHIBIT fh
ws Fannin
Donald Max Sheppard
a 4
CONTENTS DONALD MAX SHEPPARD
being produced, and being first duly sworn, was examined]
and testified as follows
‘APPEARANCES:
EXAMINATION
BY JENNIFER CATES LESTER
EXAMINATION Q Good morning, Dr. Sheppard. We previously
By Jennifer Cates Lester 4 met?
By Leonard Ireland, dr. 4 Yes
A.
10 By Jennifer Cates 84 1D QAnd I'm going to be taking your deposition
aL Itt today in the case that you've brought against Shannon
12 12 Smyth. Have you ever had your deposition taken before?
13 EXHIBITS INETIAL REPERENCE|13 A Yes, I have
ld None 4 Q How many times?
15 15 A Gee, this is through work. I'd say
16 16 approximately four, five times
17 17 a Okay, Well, let me refresh the rules for
48 18 you just so that we don't have any issues going forward,
19 19 The Court Reporter is going to take down everything that)
20 20 we say, so it's important that you say your answer
21 SIGNATURE PAGE 81 24 I'll understand, especially since I'm able to see you,
22 REPORTER'S CERTIFICATE 88 jae if you nod or shake your head or say uh-huh or huh-uh,
23 23 but typed up those things look very much alike Sor
24 28 will, if you do it, and everybody does I'll just say is
25 25, that yes or is that no so that we have a clear record.
APPEARANCES 1 Okay?
a A Okay
LEONARD IRELAND, JR., Clayton-Johnston, 18 | 3 9 The other, T don't think this is going to
NW 33rd Court, Gainesville, Florida 32607, 352-376-4694,) 4 be a problem for you, is it's important to talk slowly
lireland@clayton-johnston.com, 5 so that the Court Reporter can take down your response.
On Behalf of the Plaintiff, 6 And although many times you'll know where I’m going with!
7 the question, if you could just wait until I'm finished
JENNIFER CATES LESTER, Slater Feiber, P.A.,| 8 before you begin to answer, the Court Reporter can only
3940 NW 16th Bouldvard, Building B, Gainesville, Florida] 9 take down one person talking at a time, So it's a huge
10 32605, 352-376-8201, jenniferi@salterlaw. net, iO inconvenience if we step on each others toes, aven
it On Behalf Defendant Smyth, AL though it's a normal happaning in conversation Okay?
12 42 A, Sure
13 MARC T, PARRINO, Liebler, Gonzalez & 13 Q And I don't expect this to take all day,
14 Portuondo, 44 West Flagler Street, Miami, Florida 33130, i but if you need to stop and take a break at any time, wel
15 305-379-0400, mtp@lgplaw.com, can do that, Okay?
16 On Behalf of Defendant BOA. ts 4 Okay
7 A7 Q Could you please state your full name for
18 18 the report.
19 Deposition of DONALD MAK SHEPPARD, taken by}19 A It's Donald Max Sheppard,
20 the Defendant Smyth, pursuant to Notice and the Florida [26 h-a-p~p-anr-d,
iat Rules of Civil Procedure, at Fleming & Lowenberg, 144 21 Q And what's your current address?
22 South Uncompahgre Avenue, Montrose, Colorado, conmencing|22 A 173 Fisher, F-i-s-h-e-r, Canyon Drive,
23 at the hour of 9:23 a.m, on the i2th day of January, 23 Ridgway, Colorado 81432
24 2017, before Keith Rusk, Court Reporter and Notary 24 9 How long have you lived at that address?
25 Public, 25 A Approximately three years
Keith Rusk Reportin
Montrose, 970-249-5503 Grand Junction, 970-245-9000
Serving Western Colorado Since 1981
Donald Max Sheppard
8
And where did you live prior to that? 1 all in mechanical engineering. And I was a professor at
In Gainsville, Florida the University of Florida from 1969 until ~~ let's see,
Do you remember your address in Gainsyille?! 3 it was about 11 years ago. About 2006, I quess it was,
Sure 12002 Southwast 89th Street, 32608 4 Q And did you retire in 2006?
Have you sold that residence? 5 A, T did.
, it's, on it's -- no, it's still 6 0 Have you had any employment since 2006?
there, A, Yes, I have a small consulting engineering
Is it for sale? 8 firm in Gainsville, and was employed from the 2006 up
Tt will be short]; $ until about three years ago when, with that company, andi
How long did you live at that residence? 10 our company was acquired by another company.
at Approximately six years. 11 What was the name of your small company?
12 And where did you live prior to that? 12 Ocean Engineering Associates, OA.
13 Hobbits Glen Condominiuns, 1656 -- let's 13 Q And who acquired it?
4 see M4 Intera, I-n-t-e-r-a,
15 ‘That's okay. 15 Q And that’s when you retired completely?
16 Yeah, okay 16 A. No, I was working half time at that time,
17 How long did you live in the Hobbits Glen 17 and I'm still on call.
18 Condos? Q Do you keep any regular hours?
19 Since 1986. 19 A No No, it's strictly as needed.
20 So 1986 through about 2010? (20 Q Do you have any background in the field of
at Yes 21 caring for the elderly?
(22 And you were 2010 to 2013 at the 12002 [22
23 address? Q Do you have any background or experience in
24 A, That is correct 24 the field of elder abuse allegations?
25 Q And then for the preceding three years in {25 4, Yo.
Colorado? Q What about exploitation of the elderly?
A, Right A, io.
All right, ho lives with you at your Do you have any training or certifications
oo address? in that field?
My wife Alicia. A. No.
And what's her name? Q Do you hold any licenses in any state?
A-l-i-c-i-a, Les, -e-@, Sheppard 1 A. No
Anybody else? Q Have you reviewed anything to prepare for
Beg your pardon? 1 didn't hear you 9 your deposition?
10 Anybody else? 10 A dust the wills and the trust and --
4 No, aL Q Anything --
12 Did anybody else live with you at the 12002)12 A. -- and the information that was provided by)
13 address? 43 Bank of Anerica.
14 A. No. 4 Q What information provided by Bank of
15 You mentioned that you had had your 5 America? There's been a lot
16 deposition taken four or five times in the past. What 16 A, It was a response to the request for
17 types of cases were those? a7 information about the transactions on accounts that was
18 A ‘Those were cases where I was an expert 18 held by Margaret. Ochi,
19 witness at the University of Florida Tt was for the 19 9 So all of the bank account information?
20 State of Florida, the Department of Natural Resources 20 A That is correct.
at And in the other cases where our firm was working for 21 9 Aaything else?
22 insurance companies, for damage due to hurricanes 22 A,
23 2 Okay. Can you tell me a little bit about 123 Q mee you spoken to anybody about this case
24 your background and education? lad other than your attorney?
25 A, Yes. I have a bachelors, masters and Phd 125 4A T have not.
Keith Rusk Reporting
Montrose, 970-249-5503 Grand Junction, 970-245-9000
Serving Western Colorado Since 1981
Donald Max Sheppard
10 12
0
Did you do anything else to prepare for 1 A She had a degree, I think, in physics 1
your deposition? a not absolutely certain, but I think it was in physics.
No. 3 Q A bachelors, masters or Phd?
2 How many trusts do you serve as trustee 4 A, I think it was a masters level, bachelors
for? 5 ox masters.
A. This is the only trust. 6 Q And what about Mr. Ochi, what was his
Have you ever been a trustee other than 1 background?
this time? 8 A. He had three doctorate degrees One in
A, No. 9 naval architacture from Japan, One in statistics from a
10 Did you take any classes or educate 10 university in the United States And then he had an
it youre in any way regarding the trust? 11 honorary degree from an Italian university.
[12 No, 12 0 Do you remember where Mr, Ochi lived when
13 Q Or as serving as trustee? 13 he came to Gainesville?
14 A. No. 1d A, He built @ house in the Hammock,
15 a Are you charging a fee as trustee? 15 0. Is that the first house that he owned here?
16 16 A I think that is the first house He vas
17 Q When did you first meet the Ochis? 17 from -- he was renting, I think, up until that time.
18 Tt was about 1978. 18 9 Where did he rent?
19 Q And how did you come to meat then? 19 A ‘That I'm not sure
20 A He had applied for a position in our 20 Q Okay
21 department and I was chairman of the department at that iat 4, T don't recall.
22 time. i22 a Did Ns, Ochi obtain employment when she
23 0 Did you interview him? i23 moved to Gainesville?
24 A. Inmet with him in Washington where he and (24 A. Not to my knowled
25 his wife Margaret were employed. That was my first 25 a When did they -- I'm sorry? then did they
ML 13
meeting, 1 move into the house in the Hammock, if you can recall?
0 Okay, And when did you next see him? Did 2 A, I don't recall exactly. Tt was not long
you make him an offer to move to Gainesville? 3 after they were here.
A, He cane to Gainesville and interviewed and 4 Q Okay, And did Mrs, Ochi ever work once she|
wa made him an offer and he accepted, 5 moved to Gainesville?
Q So when did he begin work in Gainesville?
76 A. Not to my knowledge
A, Tt was about 1979. Do you know when they first met Shannon
Q And did you and Mr. Ochi begin working a smyth?
together then? 9 A Not exactly, no, I don't
(10 A We did, He -- his office was next to mine 0 Q Do you have an estimate?
lt and, yes, we were colleagues ad A Beg your pardon?
12 9 Wag Mrs. Ochi working at the time? 12 Q Do you have an estimate?
13 A, She remained in Washington for a period of 13 I think he was a neighbor living across the}
14 time, I think approximately a year, maybe a year and a 14 street fiom them,
15 half, two years, something, something in that order, 15, Q In the Hammock?
16 finishing up her work and then she moved to Gainesville 16 A In the Hammock, So I assume it was
17 Q And in what field was she working? 7 sonetime after they moved to this location
18 A She was in the -- she worked at the same 18 Q How old was he, if you know?
119 place as Michel Ochi, the David Taylor Model Basin, they! Ye A. I don't know
20 were both in the same fields. Q When did you first meet Mr, Smyth?
at Q And what was that field? i A Gosh, I don't, I don't remember the first
22 A Naval architecture, Ocean engineering. 22 time I met him
23 Q Do you know anything about her background? 23 Q Do you know where it would have been?
24 A, Yes, I know some 4 A No.
25 Q What degrees did she hold? 25, Q Do you remember about how old Mr. Smyth
Keith Rusk Reporting
Montrose, 970-249-5503 Grand Junction, 970-245-9000
Serving Western Colorado Since 1981
Donald Max Sheppard
u 16
was? 1 a. So you didn't work with him in the sense of;
No, I don't. 2 a true employment, but you have yorked with him as you
Was he an adult, or was he a teenager? 3 both helped to care for the Ochis as they aged, is that
I think he was an adult by the time I met 4 accurate?
him, 5 A, That's correct
Did he ever work with -- did Mr, Smyth ever} s Q Do you know how Mr, Smyth mat the Ochis?
work with you? A No,
Work with me? Could you ~~ i Did you, during the time that the Ochis
° Yes, 9 lived in "the Hammock, did you ever go to their home for
10 A Could you -- 10 social events?
AL 9 Have you -~ lL A. I did.
n2 Work with me, what, could you expand that aj12 0 Did you ever see Mr, Smyth there?
A3 little bit? I'm not sure I understand, A, I'm trying to remember I don't remenber
14 Has Mr. Smyth ever worked in the same 14 an incident where he was thera, but he could have been.
35, department at UF as you were working? 15 Q Did the Ochis have any children?
16 4, Oh, No. 16 A No children
17 Q What about in your work with Ocean a7 0. Do you have any information about the kinds
18 Consulting? 18 of jobs that Mr. Smyth did for the Ochis while they
19 A. Yo, 19 lived in the Hammock?
20 Q. Did Mr, Smyth ever worked with Dr. Ochi? 20 4, No firsthand information I under -- heard)
a1 A Not to my knowledge. He could have, but 21 that at some point from someone that he helped them with,
22 not to my knowledge i22 their yard work.
[23 Q In what department at UF was Dr. Ochi? 123 0 Would you say you were the type of friend
24 A We were in the Coastal and Oceanographic 24 with the Ochis that you would spend Christmas,
25 Engineering Department, which later merged with the 125 Thanksgiving or other holidays with then?
8 7
Civil Engineering Department A We did. My wife and I did
9 Do you know if Mr. Smyth ever worked for Q Okay. Do you recall seeing Mr. Smyth
Coastal and Ocean Engineering Departmant? around during holidays like that while the Ochis lived
A, Not to my knowledge. in the Hanmock?
Q What with the Civil Engineering Department A, Usually our getting together on these
at UF? occasions was at restaurant somewhere
A, Again, not to my knowledge. Q Do you recall Mr. Smyth going with you all?
@ Did Mra. Ochi in either one of those A I'm trying to recall. It's possible that
departments? he could have been at one of those events
10 A No, I don't think so, no Q Okay, Did the Ochis move from the Hammock
11 9 Do you know where Mr, Snyth works now? BL at some point?
12 4 I think it's for an enginearing fim i 2 A. ‘They did,
13 think it was CH2H Ail I think that's correct. 3 Q Where did they move?
1d 2 And do you know what degree Mr. Sayth has? 4 A They moved to a condominium, I think it's
15 A. 1 do not, AS called West End Condominiums out by the West End Golf
16 9 Bo you have any information one way or 26 Course
17 another regarding Mr. Sayth's work ethic? nT Q And do you remember when that was?
118 A, No, not. really, is A No, not -- no.
19 Q What do you mean "not really"? 19 Q Do you remember whether or not Shannon
20 A. Weil, T don't know. No. 20 helped them move?
at Q You hesitated a bit when I asked you ah A No, I do not remember that.
22 wheather you had ever yorked with Mr. Sayth, Have you 22 Q Did you help then move?
23 done any work with hin at all? 23. A.
24 A, Only in the care for the Ochis, That's thej24 0 At the time that they moved into West End,
25 reason I asked for clarification. 25 had you met Shannon?
Keith Rusk Reporting
Montrose, 970-249-5503 Grand Junction, 970-245-9000
Serving Western Colorado Since 1981
Donald Max Sheppard
18 20
A, Yes. third
Q And was he a part of their life at that 9 All right. Those were the successor
point? Did you see him around them or at their hone? trustees, but weren't Hr. and Mra, Ochi the original
4I don't recall seeing him there, no trustees?
9 Okay. Do you know whether he did odd jobs A. Oh, yes, that is correct
for them during the time period in which they were 0. And did you have any role in assisting then|
noving from the Hammock to West End? in Grafting that trust?
A I think, I think I was aware that he had, I did not, no.
had helped then, Q Did you refer them to anyone to draft the
10 Q Did he help both Mrs. Ochi and Mr. Ochi? 10 trust?
at A, Yes aL A. No.
12 Q Who, who else helped them, if anyone? 12 Did you assist them in placing assets into
13 A, They did not have a lot of friends, at 13 the trust?
14 least in Gainesville, other than my wife and I, and 1 14 4, No,
15 don't know of any other help that they might have 15 8 Was Mr. Ochi still working in 2002?
16 received. 16 A, He was,
a7 Did you ever perceive that they treated 17 Q And do you know when he retired?
18 Shannon like an adopted grandchild? A He retired about a year bafore I did. They]
19 No, I didn't, I didn't think of it in that 19 had the retirement party for the two of us at the same
20 sense. 20 time.
21 Q Do you know whether or not they would 21 Q Did Mr. Smyth come to the retirement party?!
22 celebrate his birthday with him? 22 A, There was a lot of people T don't recall
23 A Twas not aware of that, no. 123 if he was there. He could have been,
24 9 Did he celebrate their birthdays with them?)24 0 Did you ever take over as the first-named
25 A We would, on several occasions would take, {25 successor trustee prior to Mrs. Ochi's death?
9 at
take them out to eat on their birthday and invited A No, she was trustee after Nr, Ochi's death,
Shannon And I'm not aware of times when he might have T assisted her with, with things, but she was the
done that on his own, but he may have. trustee at that point:
Q What about Christmas time, did he see them Q Okay, Mr., or Dr. Ochi passed in 2012; is
on Christmas? that correct? Do you remember when he passed?
A, I don't know, Let's see I don't recall the exact date
Q What about Thanksgiving, do you know if he I'm not sure
was part of their Thanksgiving rituals? 9 Okay. When did he stop serving as the
A, We had a number of Thanksgiving meals with co-trustee?
10 the Ochis because our kids were out of town, out of 10 A. He was co-trustee up until his death.
aL Florida, and were not present and we would go out to it Q Was he mentally able to participate as
12 dinner with them, as well as at Christmas Or we would 12 co-trustee all the way up until he passed?
13 invite them to our house when our kids were there Th 13 A He was, he was quite alert up until his
14 not -~ M4 death,
15 Q Do you renenber Shannon being present for 15 Q Okay, So you and Mr. Ochi retired around
16 those meals? 2006; is that correct?
17 A On those occasions he was not 17 A ‘That is correct
18 Q Do you know when the Ochis trust was i18 And Mr, Ochi was, Mr. and Hrs. Ochi were
19 originally drafted? iL9 both trustees at that time?
20 A I think it was 2002 I think it was 20 A That is correct
21 January, 2002 a1 Q All right And ware they living together
22 Q And who were the original trustees? 22 at West End?
123 A, I don't think the trustees changed. And 23 A Yes
124 the trustee -- I was the first trustee Lou Motter was 24 Q When did they move from West End?
25 the second. And in the trust Shannon Smyth was the 25 A. When I found a place for them to go, which
Keith Rusk Reportin:
Montrose, 970-249-5503 Grand Junction, 970-245-9000
Serving Western Colorado Since 1981
Donald Max Sheppard
22 4
was when they moved into the Atrium, 1 don't recall the] 1 9 How long, about, did Mr, Ochi live at the
exact, I don't recall the exact date, Atriun?
Q
Now, the apartment or condo at West End was ; &. Up until his death. I don't, I don't
fully independent diving; is that right? exactly know how long that was It vas, I think in the
B, That is correct, : order of a year, or perhaps longer. T'm not sure
Q Did they have any kind of home health 6 0 There was some type of incident that
agency coming in when they lived at West End? 7 occurred between Dr. and Mrs. Ochi, are you aware of
4 Not to my knowledge 8 that?
ALL right: Now, the Atrium is an assisted | 9 A Yes, I am.
10 living facility; ds that right? 10 Q Can you give me a general idea of what
lt X ‘the Atrium is independent living. 1d happened and how you found out about it?
12 a And you said that you found that place for ie A, I can give you Margaret Ochi's account I
13 than to move to? became aware of it when the incident was reported in the
14 A, ‘That is corzect. i newspaper And I immediately called and went to see
15 9 Why did you fee) like they needad to move [15 Margaret Ochi, The incident, as reported to me by
16 from West End to the Atrium? 16 Margaret Ochi, was that Mr. Ochi, Dr. Ochi had driven
17 A ey no longer, no longer had driving 17 out and obtained their evening meal and brought it back
18 privileges and, you know, it was apparent that they 18 And when he -~ when she was walking with a plate over to}
19 needed assistance, $o at the Atrivn they were living injl9 get whatever it was they were going to eat, she tripped
(20 ‘an independont apartment but had assisted living care pe and fell. the plate shattered and she was on the floor
21 cone and Dr. Ochi was not able to get her up, The phone was
22 Q Why did you think that it was apparent that) i nearby so she called, I think, 911
23 they needed assistance? The police came out and Dr. Ochi would not
24 AK Well, their mental capacity had. tA let them in, for whatever reason They finally broke
25 deteriorated. Their physical abilities had 25 in, broke the door down, came in And he had a broom in}
3 25
deteriorated. And, like 1 said, they had no means of 1 his hand where he was attempting to sweep up the broken
driving, getting to the store, and so forth. plate. ‘The police assumed that he was abusing her with
@ Do you remember when Mr, Ochi stopped 3 this broom, And when they asked him, he told them it
driving? was none of their business, ‘This infuriated the police,
A ‘It was shortly before they moved into the 5 they took him into custody and took him to jail
Atrium, Urs. Ochi ~~ There was a constraining order ~~ first of
Q Did he -- okay, Go ahead. 7 all, there was ~~ when I drove to the Ochis' house and
A Mrs. Ochi lost her driver's license before 8 found out about this, I drove to the jail to try to get
that. him released. There was a mandatory three-day
10 0. Did sha voluntarily give ic up or did a ie imprisonment for abuse, and so he was not released for
tL physician require her to give it up? three days
12 A neighbor reported her and she was given a i So when he was released, there was a
13 driver's test and she did not past the test. constraining order and so he had no place to go So he
14 Q What condition caused her not to pase the iM stayed with my wife and T for approximately tvo weeks
15 test? while, until the constraining order was removed.
16 a What conditions? ne And where were the Ochis living at the time}
17 9 Yes. 7 this incident occurred?
18 A, They gave her ~~ they gave her a driver's, [18 A, ‘That was in their condominium as Hest End.
19 a driving test and sha failed the test. Ldon't know 18 Q Okay Was this incident one of the factors
20 exactly what, how she failed it, but she failed the testi20 that led you to believe that they needed to be at the
24 and they would not ~~ they removed her License and would|2i Atriun?
22 not reinstate it. 22 Rh. Well, it was a number of factors, as I
23 % And how did Mr. Ochi come to lose his 23 indicated, but this -- well, no, this didn't impact that
24 license? 24 decision The fact that I didn't think he should be
25 A ‘That I'm not. sure, 25 driving, even if he had his driver's license, because of,
Keith Rusk Reporting
Montrose, 970-249-5503 Grand Junction, 970-245-9000
Serving Western Colorado Since 1981
Donald Max Sheppard
a 28
his physical state was, and the fact that she didn't 1 with then
have a driver's license at that time. And, obviously, 2 9 When the caregivers began to see the Ochis
their mental abilities obviously were not what they were} 3 at the Atrium, where for Mr. Ochi or Mrs. Ochi or both?
at one time. So that's why I concluded that they needed} ; A For both,
to be somewhere where they could have assistance. Q And at that time were Mr, Ochi and Mrs.
Q And did they agree with that? 1;
Ochi continuing to act as trustees of their trust?
A ‘They did. A That is correct.
9 Did Mr. Ochi leave fron your house when he | 8 Q Was Mr. Ochi mentally capable, in your
stopped staying with you to go back to West End, or were} 9 opinion, of continuing to act as his own trustee?
10 they moved into the Atrium by the time he had left your in A He was
11 home? Q Was there, during this time that the Ochis
12 A He went back to the West End. lived at the Atrium, was, and Mr. Ochi was living, was
13 Q Was there anybody who stayed with Mrs, Ochi| 8 Mrs, Ochi competent to act as her own trustee?
14 while Mr, Ochi stayed with you? A As best I could tell
15 A. T don't know that anyone stayed there, te @ Okay. From -- they kept him in jail for
16 ‘There were some caregivers that ware sent out by the 16 three days?
17 county, I guess, or whatever, that ware there part-time. j17 A. They did.
18 9 What about
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Filing # 88702211 E-Filed 04/29/2019 05:41:47 PM IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT, IN AND FOR ALACHUA COUNTY, FLORIDA RICHARD M. WHITE, ESQ., as Successor Trustee of The Michel K. and Margaret D. Ochi CASE NO.: 01-2015-CA-4330 Revocable Trust Agreement; UNIVERSITY OF FLORIDA FOUNDATION, INC. and UNIVERSITY OF MARY WASHINGTON FOUNDATION, Plaintiffs, V. SHANNON L. SMYTH and BANK OF AMERICA, N.A., Defendants. DEFENDANT’S SECOND NOTICE OF FILING SUMMARY JUDGMENT EVIDENCE Defendant, Shannon Smyth, by and through undersigned counsel, hereby give notice of filing the following evidence to support Defendant’s Amended Response to Plaintiffs’ Motion for Partial Summary Judgment on Counts IV and V of the Second Amended Complaint and Cross Motion for Summary Judgment on Plaintiffs’ Second Amended Complaint and Defendant’s First Affirmative Defense and Incorporated Memorandum of Law filed on April 29, 2019, and set for hearing on May 20, 2019: i Deposition Transcript of Donald Max Sheppard dated January 12, 2017 attached as Exhibit A; CERTIFICATE OF SERVICE I HEREBY CERTIFY on April a, 2019, I filed the foregoing with the Clerk of the Court using Florida’s E-Portal System, which will provide electronic notice to the following: Richard White, Esquire, 5303 S.W. 91“ Drive, Suite 200, Gainesville, FL 32608, rmw@vate.net He.0Ct "2015 CA 004330" 88702211 Filed at Alachua County Clerk 04/30/2019 08:15:00 AM EDT and John Cole, Esquire, Jason Van Lenten, Esquire, Christine Sweet, Esquire, 225 Water Street, Suite 1750, Jacksonville, FL 32202, jcvle@/gunster.com, jvanienten@gunster.com, esweet@gunsier.com, 2.COM, wnystrom@gunster.com, WNYSIT unster.com, sjustice@gunster.com. nster.com. SALTER FEIBER, P.A. ed. Jennifer Cates Lester Florida Bar Number: 0945810 Bradford T. Willard Florida Bar Number: 0062827 Star M. Sansone Florida Bar Number: 113103 3940 N.W. 16th Blvd., Bldg. B Gainesville, FL 32605 Telephone: (352) 376-8201 Je Oe t sta Lt (@ net Hanno nd terlaw.net craw. net Attorney for Defendant, Shannon Smyth Donald Max Sheppard IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT IN AND FOR THE ALACHUA COUNTY, FLORIDA sah init i nin mt i teen eel te DONALD MAX SHEPPARD, as Trustee of the Michel kK. CASE NO. 01-2015-CA-4330 and Margaret D, Ochi Revocable Trust Agreement, Plaintiff, vs, SHANNON L. SMYTH and BANK OF AMERICA, N.A. a National Banking Association, Defendants. cnt inh Sei ti nnn nett emer tation tent nn neo DEPOSITION OF DONALD MAX SHEPPARD Taken by the Defendant Smyth January 12, 2017 Keith Rusk Reporting Montrose, 970-249-5503 Grand Junction, 970-245-9000 Serving Western Colorado Since 1981 XHIBIT fh ws Fannin Donald Max Sheppard a 4 CONTENTS DONALD MAX SHEPPARD being produced, and being first duly sworn, was examined] and testified as follows ‘APPEARANCES: EXAMINATION BY JENNIFER CATES LESTER EXAMINATION Q Good morning, Dr. Sheppard. We previously By Jennifer Cates Lester 4 met? By Leonard Ireland, dr. 4 Yes A. 10 By Jennifer Cates 84 1D QAnd I'm going to be taking your deposition aL Itt today in the case that you've brought against Shannon 12 12 Smyth. Have you ever had your deposition taken before? 13 EXHIBITS INETIAL REPERENCE|13 A Yes, I have ld None 4 Q How many times? 15 15 A Gee, this is through work. I'd say 16 16 approximately four, five times 17 17 a Okay, Well, let me refresh the rules for 48 18 you just so that we don't have any issues going forward, 19 19 The Court Reporter is going to take down everything that) 20 20 we say, so it's important that you say your answer 21 SIGNATURE PAGE 81 24 I'll understand, especially since I'm able to see you, 22 REPORTER'S CERTIFICATE 88 jae if you nod or shake your head or say uh-huh or huh-uh, 23 23 but typed up those things look very much alike Sor 24 28 will, if you do it, and everybody does I'll just say is 25 25, that yes or is that no so that we have a clear record. APPEARANCES 1 Okay? a A Okay LEONARD IRELAND, JR., Clayton-Johnston, 18 | 3 9 The other, T don't think this is going to NW 33rd Court, Gainesville, Florida 32607, 352-376-4694,) 4 be a problem for you, is it's important to talk slowly lireland@clayton-johnston.com, 5 so that the Court Reporter can take down your response. On Behalf of the Plaintiff, 6 And although many times you'll know where I’m going with! 7 the question, if you could just wait until I'm finished JENNIFER CATES LESTER, Slater Feiber, P.A.,| 8 before you begin to answer, the Court Reporter can only 3940 NW 16th Bouldvard, Building B, Gainesville, Florida] 9 take down one person talking at a time, So it's a huge 10 32605, 352-376-8201, jenniferi@salterlaw. net, iO inconvenience if we step on each others toes, aven it On Behalf Defendant Smyth, AL though it's a normal happaning in conversation Okay? 12 42 A, Sure 13 MARC T, PARRINO, Liebler, Gonzalez & 13 Q And I don't expect this to take all day, 14 Portuondo, 44 West Flagler Street, Miami, Florida 33130, i but if you need to stop and take a break at any time, wel 15 305-379-0400, mtp@lgplaw.com, can do that, Okay? 16 On Behalf of Defendant BOA. ts 4 Okay 7 A7 Q Could you please state your full name for 18 18 the report. 19 Deposition of DONALD MAK SHEPPARD, taken by}19 A It's Donald Max Sheppard, 20 the Defendant Smyth, pursuant to Notice and the Florida [26 h-a-p~p-anr-d, iat Rules of Civil Procedure, at Fleming & Lowenberg, 144 21 Q And what's your current address? 22 South Uncompahgre Avenue, Montrose, Colorado, conmencing|22 A 173 Fisher, F-i-s-h-e-r, Canyon Drive, 23 at the hour of 9:23 a.m, on the i2th day of January, 23 Ridgway, Colorado 81432 24 2017, before Keith Rusk, Court Reporter and Notary 24 9 How long have you lived at that address? 25 Public, 25 A Approximately three years Keith Rusk Reportin Montrose, 970-249-5503 Grand Junction, 970-245-9000 Serving Western Colorado Since 1981 Donald Max Sheppard 8 And where did you live prior to that? 1 all in mechanical engineering. And I was a professor at In Gainsville, Florida the University of Florida from 1969 until ~~ let's see, Do you remember your address in Gainsyille?! 3 it was about 11 years ago. About 2006, I quess it was, Sure 12002 Southwast 89th Street, 32608 4 Q And did you retire in 2006? Have you sold that residence? 5 A, T did. , it's, on it's -- no, it's still 6 0 Have you had any employment since 2006? there, A, Yes, I have a small consulting engineering Is it for sale? 8 firm in Gainsville, and was employed from the 2006 up Tt will be short]; $ until about three years ago when, with that company, andi How long did you live at that residence? 10 our company was acquired by another company. at Approximately six years. 11 What was the name of your small company? 12 And where did you live prior to that? 12 Ocean Engineering Associates, OA. 13 Hobbits Glen Condominiuns, 1656 -- let's 13 Q And who acquired it? 4 see M4 Intera, I-n-t-e-r-a, 15 ‘That's okay. 15 Q And that’s when you retired completely? 16 Yeah, okay 16 A. No, I was working half time at that time, 17 How long did you live in the Hobbits Glen 17 and I'm still on call. 18 Condos? Q Do you keep any regular hours? 19 Since 1986. 19 A No No, it's strictly as needed. 20 So 1986 through about 2010? (20 Q Do you have any background in the field of at Yes 21 caring for the elderly? (22 And you were 2010 to 2013 at the 12002 [22 23 address? Q Do you have any background or experience in 24 A, That is correct 24 the field of elder abuse allegations? 25 Q And then for the preceding three years in {25 4, Yo. Colorado? Q What about exploitation of the elderly? A, Right A, io. All right, ho lives with you at your Do you have any training or certifications oo address? in that field? My wife Alicia. A. No. And what's her name? Q Do you hold any licenses in any state? A-l-i-c-i-a, Les, -e-@, Sheppard 1 A. No Anybody else? Q Have you reviewed anything to prepare for Beg your pardon? 1 didn't hear you 9 your deposition? 10 Anybody else? 10 A dust the wills and the trust and -- 4 No, aL Q Anything -- 12 Did anybody else live with you at the 12002)12 A. -- and the information that was provided by) 13 address? 43 Bank of Anerica. 14 A. No. 4 Q What information provided by Bank of 15 You mentioned that you had had your 5 America? There's been a lot 16 deposition taken four or five times in the past. What 16 A, It was a response to the request for 17 types of cases were those? a7 information about the transactions on accounts that was 18 A ‘Those were cases where I was an expert 18 held by Margaret. Ochi, 19 witness at the University of Florida Tt was for the 19 9 So all of the bank account information? 20 State of Florida, the Department of Natural Resources 20 A That is correct. at And in the other cases where our firm was working for 21 9 Aaything else? 22 insurance companies, for damage due to hurricanes 22 A, 23 2 Okay. Can you tell me a little bit about 123 Q mee you spoken to anybody about this case 24 your background and education? lad other than your attorney? 25 A, Yes. I have a bachelors, masters and Phd 125 4A T have not. Keith Rusk Reporting Montrose, 970-249-5503 Grand Junction, 970-245-9000 Serving Western Colorado Since 1981 Donald Max Sheppard 10 12 0 Did you do anything else to prepare for 1 A She had a degree, I think, in physics 1 your deposition? a not absolutely certain, but I think it was in physics. No. 3 Q A bachelors, masters or Phd? 2 How many trusts do you serve as trustee 4 A, I think it was a masters level, bachelors for? 5 ox masters. A. This is the only trust. 6 Q And what about Mr. Ochi, what was his Have you ever been a trustee other than 1 background? this time? 8 A. He had three doctorate degrees One in A, No. 9 naval architacture from Japan, One in statistics from a 10 Did you take any classes or educate 10 university in the United States And then he had an it youre in any way regarding the trust? 11 honorary degree from an Italian university. [12 No, 12 0 Do you remember where Mr, Ochi lived when 13 Q Or as serving as trustee? 13 he came to Gainesville? 14 A. No. 1d A, He built @ house in the Hammock, 15 a Are you charging a fee as trustee? 15 0. Is that the first house that he owned here? 16 16 A I think that is the first house He vas 17 Q When did you first meet the Ochis? 17 from -- he was renting, I think, up until that time. 18 Tt was about 1978. 18 9 Where did he rent? 19 Q And how did you come to meat then? 19 A ‘That I'm not sure 20 A He had applied for a position in our 20 Q Okay 21 department and I was chairman of the department at that iat 4, T don't recall. 22 time. i22 a Did Ns, Ochi obtain employment when she 23 0 Did you interview him? i23 moved to Gainesville? 24 A. Inmet with him in Washington where he and (24 A. Not to my knowled 25 his wife Margaret were employed. That was my first 25 a When did they -- I'm sorry? then did they ML 13 meeting, 1 move into the house in the Hammock, if you can recall? 0 Okay, And when did you next see him? Did 2 A, I don't recall exactly. Tt was not long you make him an offer to move to Gainesville? 3 after they were here. A, He cane to Gainesville and interviewed and 4 Q Okay, And did Mrs, Ochi ever work once she| wa made him an offer and he accepted, 5 moved to Gainesville? Q So when did he begin work in Gainesville? 76 A. Not to my knowledge A, Tt was about 1979. Do you know when they first met Shannon Q And did you and Mr. Ochi begin working a smyth? together then? 9 A Not exactly, no, I don't (10 A We did, He -- his office was next to mine 0 Q Do you have an estimate? lt and, yes, we were colleagues ad A Beg your pardon? 12 9 Wag Mrs. Ochi working at the time? 12 Q Do you have an estimate? 13 A, She remained in Washington for a period of 13 I think he was a neighbor living across the} 14 time, I think approximately a year, maybe a year and a 14 street fiom them, 15 half, two years, something, something in that order, 15, Q In the Hammock? 16 finishing up her work and then she moved to Gainesville 16 A In the Hammock, So I assume it was 17 Q And in what field was she working? 7 sonetime after they moved to this location 18 A She was in the -- she worked at the same 18 Q How old was he, if you know? 119 place as Michel Ochi, the David Taylor Model Basin, they! Ye A. I don't know 20 were both in the same fields. Q When did you first meet Mr, Smyth? at Q And what was that field? i A Gosh, I don't, I don't remember the first 22 A Naval architecture, Ocean engineering. 22 time I met him 23 Q Do you know anything about her background? 23 Q Do you know where it would have been? 24 A, Yes, I know some 4 A No. 25 Q What degrees did she hold? 25, Q Do you remember about how old Mr. Smyth Keith Rusk Reporting Montrose, 970-249-5503 Grand Junction, 970-245-9000 Serving Western Colorado Since 1981 Donald Max Sheppard u 16 was? 1 a. So you didn't work with him in the sense of; No, I don't. 2 a true employment, but you have yorked with him as you Was he an adult, or was he a teenager? 3 both helped to care for the Ochis as they aged, is that I think he was an adult by the time I met 4 accurate? him, 5 A, That's correct Did he ever work with -- did Mr, Smyth ever} s Q Do you know how Mr, Smyth mat the Ochis? work with you? A No, Work with me? Could you ~~ i Did you, during the time that the Ochis ° Yes, 9 lived in "the Hammock, did you ever go to their home for 10 A Could you -- 10 social events? AL 9 Have you -~ lL A. I did. n2 Work with me, what, could you expand that aj12 0 Did you ever see Mr, Smyth there? A3 little bit? I'm not sure I understand, A, I'm trying to remember I don't remenber 14 Has Mr. Smyth ever worked in the same 14 an incident where he was thera, but he could have been. 35, department at UF as you were working? 15 Q Did the Ochis have any children? 16 4, Oh, No. 16 A No children 17 Q What about in your work with Ocean a7 0. Do you have any information about the kinds 18 Consulting? 18 of jobs that Mr. Smyth did for the Ochis while they 19 A. Yo, 19 lived in the Hammock? 20 Q. Did Mr, Smyth ever worked with Dr. Ochi? 20 4, No firsthand information I under -- heard) a1 A Not to my knowledge. He could have, but 21 that at some point from someone that he helped them with, 22 not to my knowledge i22 their yard work. [23 Q In what department at UF was Dr. Ochi? 123 0 Would you say you were the type of friend 24 A We were in the Coastal and Oceanographic 24 with the Ochis that you would spend Christmas, 25 Engineering Department, which later merged with the 125 Thanksgiving or other holidays with then? 8 7 Civil Engineering Department A We did. My wife and I did 9 Do you know if Mr. Smyth ever worked for Q Okay. Do you recall seeing Mr. Smyth Coastal and Ocean Engineering Departmant? around during holidays like that while the Ochis lived A, Not to my knowledge. in the Hanmock? Q What with the Civil Engineering Department A, Usually our getting together on these at UF? occasions was at restaurant somewhere A, Again, not to my knowledge. Q Do you recall Mr. Smyth going with you all? @ Did Mra. Ochi in either one of those A I'm trying to recall. It's possible that departments? he could have been at one of those events 10 A No, I don't think so, no Q Okay, Did the Ochis move from the Hammock 11 9 Do you know where Mr, Snyth works now? BL at some point? 12 4 I think it's for an enginearing fim i 2 A. ‘They did, 13 think it was CH2H Ail I think that's correct. 3 Q Where did they move? 1d 2 And do you know what degree Mr. Sayth has? 4 A They moved to a condominium, I think it's 15 A. 1 do not, AS called West End Condominiums out by the West End Golf 16 9 Bo you have any information one way or 26 Course 17 another regarding Mr. Sayth's work ethic? nT Q And do you remember when that was? 118 A, No, not. really, is A No, not -- no. 19 Q What do you mean "not really"? 19 Q Do you remember whether or not Shannon 20 A. Weil, T don't know. No. 20 helped them move? at Q You hesitated a bit when I asked you ah A No, I do not remember that. 22 wheather you had ever yorked with Mr. Sayth, Have you 22 Q Did you help then move? 23 done any work with hin at all? 23. A. 24 A, Only in the care for the Ochis, That's thej24 0 At the time that they moved into West End, 25 reason I asked for clarification. 25 had you met Shannon? Keith Rusk Reporting Montrose, 970-249-5503 Grand Junction, 970-245-9000 Serving Western Colorado Since 1981 Donald Max Sheppard 18 20 A, Yes. third Q And was he a part of their life at that 9 All right. Those were the successor point? Did you see him around them or at their hone? trustees, but weren't Hr. and Mra, Ochi the original 4I don't recall seeing him there, no trustees? 9 Okay. Do you know whether he did odd jobs A. Oh, yes, that is correct for them during the time period in which they were 0. And did you have any role in assisting then| noving from the Hammock to West End? in Grafting that trust? A I think, I think I was aware that he had, I did not, no. had helped then, Q Did you refer them to anyone to draft the 10 Q Did he help both Mrs. Ochi and Mr. Ochi? 10 trust? at A, Yes aL A. No. 12 Q Who, who else helped them, if anyone? 12 Did you assist them in placing assets into 13 A, They did not have a lot of friends, at 13 the trust? 14 least in Gainesville, other than my wife and I, and 1 14 4, No, 15 don't know of any other help that they might have 15 8 Was Mr. Ochi still working in 2002? 16 received. 16 A, He was, a7 Did you ever perceive that they treated 17 Q And do you know when he retired? 18 Shannon like an adopted grandchild? A He retired about a year bafore I did. They] 19 No, I didn't, I didn't think of it in that 19 had the retirement party for the two of us at the same 20 sense. 20 time. 21 Q Do you know whether or not they would 21 Q Did Mr. Smyth come to the retirement party?! 22 celebrate his birthday with him? 22 A, There was a lot of people T don't recall 23 A Twas not aware of that, no. 123 if he was there. He could have been, 24 9 Did he celebrate their birthdays with them?)24 0 Did you ever take over as the first-named 25 A We would, on several occasions would take, {25 successor trustee prior to Mrs. Ochi's death? 9 at take them out to eat on their birthday and invited A No, she was trustee after Nr, Ochi's death, Shannon And I'm not aware of times when he might have T assisted her with, with things, but she was the done that on his own, but he may have. trustee at that point: Q What about Christmas time, did he see them Q Okay, Mr., or Dr. Ochi passed in 2012; is on Christmas? that correct? Do you remember when he passed? A, I don't know, Let's see I don't recall the exact date Q What about Thanksgiving, do you know if he I'm not sure was part of their Thanksgiving rituals? 9 Okay. When did he stop serving as the A, We had a number of Thanksgiving meals with co-trustee? 10 the Ochis because our kids were out of town, out of 10 A. He was co-trustee up until his death. aL Florida, and were not present and we would go out to it Q Was he mentally able to participate as 12 dinner with them, as well as at Christmas Or we would 12 co-trustee all the way up until he passed? 13 invite them to our house when our kids were there Th 13 A He was, he was quite alert up until his 14 not -~ M4 death, 15 Q Do you renenber Shannon being present for 15 Q Okay, So you and Mr. Ochi retired around 16 those meals? 2006; is that correct? 17 A On those occasions he was not 17 A ‘That is correct 18 Q Do you know when the Ochis trust was i18 And Mr, Ochi was, Mr. and Hrs. Ochi were 19 originally drafted? iL9 both trustees at that time? 20 A I think it was 2002 I think it was 20 A That is correct 21 January, 2002 a1 Q All right And ware they living together 22 Q And who were the original trustees? 22 at West End? 123 A, I don't think the trustees changed. And 23 A Yes 124 the trustee -- I was the first trustee Lou Motter was 24 Q When did they move from West End? 25 the second. And in the trust Shannon Smyth was the 25 A. When I found a place for them to go, which Keith Rusk Reportin: Montrose, 970-249-5503 Grand Junction, 970-245-9000 Serving Western Colorado Since 1981 Donald Max Sheppard 22 4 was when they moved into the Atrium, 1 don't recall the] 1 9 How long, about, did Mr, Ochi live at the exact, I don't recall the exact date, Atriun? Q Now, the apartment or condo at West End was ; &. Up until his death. I don't, I don't fully independent diving; is that right? exactly know how long that was It vas, I think in the B, That is correct, : order of a year, or perhaps longer. T'm not sure Q Did they have any kind of home health 6 0 There was some type of incident that agency coming in when they lived at West End? 7 occurred between Dr. and Mrs. Ochi, are you aware of 4 Not to my knowledge 8 that? ALL right: Now, the Atrium is an assisted | 9 A Yes, I am. 10 living facility; ds that right? 10 Q Can you give me a general idea of what lt X ‘the Atrium is independent living. 1d happened and how you found out about it? 12 a And you said that you found that place for ie A, I can give you Margaret Ochi's account I 13 than to move to? became aware of it when the incident was reported in the 14 A, ‘That is corzect. i newspaper And I immediately called and went to see 15 9 Why did you fee) like they needad to move [15 Margaret Ochi, The incident, as reported to me by 16 from West End to the Atrium? 16 Margaret Ochi, was that Mr. Ochi, Dr. Ochi had driven 17 A ey no longer, no longer had driving 17 out and obtained their evening meal and brought it back 18 privileges and, you know, it was apparent that they 18 And when he -~ when she was walking with a plate over to} 19 needed assistance, $o at the Atrivn they were living injl9 get whatever it was they were going to eat, she tripped (20 ‘an independont apartment but had assisted living care pe and fell. the plate shattered and she was on the floor 21 cone and Dr. Ochi was not able to get her up, The phone was 22 Q Why did you think that it was apparent that) i nearby so she called, I think, 911 23 they needed assistance? The police came out and Dr. Ochi would not 24 AK Well, their mental capacity had. tA let them in, for whatever reason They finally broke 25 deteriorated. Their physical abilities had 25 in, broke the door down, came in And he had a broom in} 3 25 deteriorated. And, like 1 said, they had no means of 1 his hand where he was attempting to sweep up the broken driving, getting to the store, and so forth. plate. ‘The police assumed that he was abusing her with @ Do you remember when Mr, Ochi stopped 3 this broom, And when they asked him, he told them it driving? was none of their business, ‘This infuriated the police, A ‘It was shortly before they moved into the 5 they took him into custody and took him to jail Atrium, Urs. Ochi ~~ There was a constraining order ~~ first of Q Did he -- okay, Go ahead. 7 all, there was ~~ when I drove to the Ochis' house and A Mrs. Ochi lost her driver's license before 8 found out about this, I drove to the jail to try to get that. him released. There was a mandatory three-day 10 0. Did sha voluntarily give ic up or did a ie imprisonment for abuse, and so he was not released for tL physician require her to give it up? three days 12 A neighbor reported her and she was given a i So when he was released, there was a 13 driver's test and she did not past the test. constraining order and so he had no place to go So he 14 Q What condition caused her not to pase the iM stayed with my wife and T for approximately tvo weeks 15 test? while, until the constraining order was removed. 16 a What conditions? ne And where were the Ochis living at the time} 17 9 Yes. 7 this incident occurred? 18 A, They gave her ~~ they gave her a driver's, [18 A, ‘That was in their condominium as Hest End. 19 a driving test and sha failed the test. Ldon't know 18 Q Okay Was this incident one of the factors 20 exactly what, how she failed it, but she failed the testi20 that led you to believe that they needed to be at the 24 and they would not ~~ they removed her License and would|2i Atriun? 22 not reinstate it. 22 Rh. Well, it was a number of factors, as I 23 % And how did Mr. Ochi come to lose his 23 indicated, but this -- well, no, this didn't impact that 24 license? 24 decision The fact that I didn't think he should be 25 A ‘That I'm not. sure, 25 driving, even if he had his driver's license, because of, Keith Rusk Reporting Montrose, 970-249-5503 Grand Junction, 970-245-9000 Serving Western Colorado Since 1981 Donald Max Sheppard a 28 his physical state was, and the fact that she didn't 1 with then have a driver's license at that time. And, obviously, 2 9 When the caregivers began to see the Ochis their mental abilities obviously were not what they were} 3 at the Atrium, where for Mr. Ochi or Mrs. Ochi or both? at one time. So that's why I concluded that they needed} ; A For both, to be somewhere where they could have assistance. Q And at that time were Mr, Ochi and Mrs. Q And did they agree with that? 1; Ochi continuing to act as trustees of their trust? A ‘They did. A That is correct. 9 Did Mr. Ochi leave fron your house when he | 8 Q Was Mr. Ochi mentally capable, in your stopped staying with you to go back to West End, or were} 9 opinion, of continuing to act as his own trustee? 10 they moved into the Atrium by the time he had left your in A He was 11 home? Q Was there, during this time that the Ochis 12 A He went back to the West End. lived at the Atrium, was, and Mr. Ochi was living, was 13 Q Was there anybody who stayed with Mrs, Ochi| 8 Mrs, Ochi competent to act as her own trustee? 14 while Mr, Ochi stayed with you? A As best I could tell 15 A. T don't know that anyone stayed there, te @ Okay. From -- they kept him in jail for 16 ‘There were some caregivers that ware sent out by the 16 three days? 17 county, I guess, or whatever, that ware there part-time. j17 A. They did. 18 9 What about