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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Nov 30 2010, 9:17 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: RICHARD D. MARTIN Martin Stuard & Douglas Frankfort, Indiana

ATTORNEY FOR APPELLEES: STEPHEN R. PENNELL Stuart & Branigin, LLP Lafayette, Indiana

IN THE COURT OF APPEALS OF INDIANA
MARY E. MCKINNEY, Appellant, vs. WINDY LANE FARMS, INC., BY AND THROUGH ITS RESIDENT AGENT, TY W. BROWN, HAL G. BROWN, SUE M. BROWN, TY W. BROWN and SACHA L. BROWN, Appellees. ) ) ) ) ) ) ) ) ) ) ) )

No. 08A02-1001-CC-71

APPEAL FROM THE CARROLL CIRCUIT COURT The Honorable Donald E. Currie, Judge Cause No. 08C01-0806-CC-102

November 30, 2010
MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge

STATEMENT OF THE CASE Mary E. McKinney ("McKinney") appeals the trial courts dismissal of her thirdparty complaint and its grant of summary judgment in favor of third-party defendants Windy Lane Farms, Inc. ("WLF"), by and through its resident agent, Ty W. Brown, Hal G. Brown, Sue M. Brown, Ty. W. Brown ("Brown"), and Sacha L. Brown (hereinafter referred to collectively as "the Browns.") We reverse and remand. ISSUE Whether the designated evidence raises genuine issues of material fact regarding McKinneys claims of undue influence and conflict of interest. FACTS The following facts are undisputed: McKinney was born in 1919. She and her now-deceased husband1 owned 101.26 acres of real estate in Carroll County. The

McKinneys real property consisted of a farm house and garage on approximately 3.0 acres; a Bedford stone house on approximately 3.26 acres; and 98 acres of farmland. The McKinneys had two adult children: Susan Crum and William McKinney. From 1986 until 2003, William lived with and cared for his parents in the farmhouse.

1

McKinneys husband died in November of 2002.

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Brown is the director and vice-president of WLF.2 In approximately 1997, Brown and the McKinneys entered into an agreement wherein Brown and WLF tenant-farmed the McKinneys 98 acres of farmland. In 2003, McKinney evicted her son, William, from the farmhouse, and later became estranged from her daughter, Susan, accusing her of theft. During this period of estrangement from her children, the Browns assisted McKinney with household chores and errands, performed snow removal, and drove her to medical appointments. From late 2003 through mid-2004, McKinney paid approximately $72,000.00 for repairs, remodeling and/or maintenance for the farmhouse.3 See Farm House Expenses Prepared by Ty Brown, Ex. 21 at 257. Also, in late 2003 or early 2004, Brown proposed to buy McKinneys real property. At the time, he personally estimated the value of the real estate to be

approximately $400,000.00, but only offered to purchase it for $200,000.00. In his initial offer, however, he was willing to buy McKinneys 98 acres of farmland and the farm house for $100,000.00, and he would perform maintenance on the property even though at the time of his offer, McKinney had already or was in the process of paying approximately $72,000 of repairs and renovations to the farmhouse. See October 15,
WLF "is an Indiana corporation located in Clinton County, Indiana." (McKinneys App. 8). Ty W. Brown is listed in Indiana Secretary of State office records as WLFs registered agent. WLF and Brown "own approximately 600 acres of farmland located in Clinton County, Indiana. WLF and [Brown] farm approximately 3,500 acres in Clinton, Carroll and Tippecanoe Counties." (Tr. 238).
2

These repair/remodeling costs included $8,500.00 in "general repairs," $2,900.00 for a new furnace, $15,000.00 to Cooper Construction, $3,194.00 for new garage doors, $7,327.00 of "basement work," approximately $18,500.00 to contractor Larry Jenkins, and approximately $30,000.00 to contractor Tony Bowlin etc. (McKinneys App. 257).
3

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2004 email from Brown to Bennett at 66, ("A number that [McKinney and I] had talked about a while back for the farmhouse and the farm was $100,000.00"); see also Mary McKinney Farm Proposal, Ex. 4 at 165, ("Mary, if you would want to sell for less I would buy for less, but $200,000 is about the most I think I could afford for this year."). As of February 18, 2004, attorney Roger Bennett of Bennett, Boehning & Clary ("BB&C") commenced representing McKinney. The parties dispute the circumstances that led to McKinneys retention of Bennetts legal services. On one hand, McKinney contends that Brown referred her to the law firm that represented him -- BB&C -- and facilitated McKinneys hiring of Bennett by driving her to BB&Cs offices in order that she could meet with Bennett. Brown and Bennett, on the other hand, deny that BB&C has ever represented either Brown or WLF. Bennett contends that on February 23, 2004, McKinney was referred to him by Fred Thompson, a mutual acquaintance of both McKinney and Brown; and that Thompson accompanied McKinney to the first consultation.4 Brown, however, admitted that he did drive McKinney to an appointment to meet with Bennett, but denies participation in the consultation. On September 16, 2004, at Bennetts request, McKinneys farmland, two houses and surrounding acreage were appraised by Halderman Real Estate Services. The total appraised value of McKinneys real property was $553,000.00. The farm house and farmland appraised for approximately $456,000.00. On October 1, 2004, Bennett

presented McKinney with the appraisal and a draft purchase agreement. Pursuant to the
Thompson was not called to testify at the hearing on Browns motion for summary judgment; nor did he tender an affidavit to the trial court.
4

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purchase agreement, McKinney would sell her property to WLF for $200,000.00; and WLF and Brown would grant McKinney a life estate in the farm house, provide her with limited maintenance services, pay McKinneys utility expenses, and provide up to $1,000.00 in maintenance repairs each year. On October 1, 2004, Bennett wrote McKinney a letter wherein he advised her to undergo a psychiatric evaluation to establish her mental competence at the time of the transaction in the event that her children contested the sale. Despite initially agreeing to undergo the psychiatric examination, McKinney later expressed reservations to Brown about it. On October 15, 2004, Brown sent an email to Bennett, stating that McKinney had proposed modifying the agreement to reflect her decision to live in the Bedford stone house instead of the farmhouse. On October 20, 2004, McKinney informed Bennett that she wanted to live in the Bedford stone house. On November 5, 2004, apparently, it was decided that Brown and WLF would purchase the farmland and farmhouse for $200,000.00; McKinney would retain ownership of the Bedford stone house; and WLF would not provide any personal care or maintenance services to McKinney. On November 16, 2004, Brown emailed Bennett that McKinney no longer wanted to undergo the psychiatric evaluation. Brown advised Bennett that he supported

McKinneys decision and was willing to assume the risk should McKinneys children contest the transaction. McKinney canceled her appointment and never underwent the psychiatric examination. 5

On November 19, 2004, Brown sent an email to Bennett purporting to contain the contractual terms he and McKinney had agreed upon. He asked Bennett to prepare the relevant documents. Later that day, Bennett mailed a copy of the finalized purchase agreement to McKinney as well as the appraisal results. On November 23, 2004, eightyfive year old McKinney and Brown executed the sale of her property. McKinney and Brown attended the closing on December 16, 2004. Bennett was also present to attest to McKinneys mental competency at closing.5 After the closing, Brown anticipated that McKinneys children would challenge the transaction. He asked McKinney to "[w]rite a letter to [him]," and provided her with several possible reasons that she should include in the letter explaining why she had sold the property to him below the appraised value. (McKinneys App. 181). On December 30, 2004, Bennett sent a letter to McKinney stating, "[I]t would be a very good idea if you would write a letter to Ty Brown explaining, in your own words, why you sold [Brown] the farm at a bargain price." (McKinneys App. 75). Soon thereafter, on January 5, 2005, McKinney gave Brown her power of attorney. On October 13, 2005,

she revoked Browns appointment. On December 2, 2006, McKinney appointed Beverly R. Strain as her power attorney. On December 2, 2006, she revoked Strains appointment and named Mellissa J. Knop as her power of attorney. On February 22, 2008, she revoked Knops appointment.

5

McKinney executed a warranty deed conveying and warranting the farmhouse and 98 acres of farmland to WLF.

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On June 20, 2008, BB&C sued McKinney for nonpayment of attorney fees.6 On August 14, 2008, McKinney filed an answer and counter claim alleging conflict of interest and legal malpractice by BB&C when it represented her in the sale of her real property to Brown and WLF. She also filed a third-party complaint against Brown and WLF, wherein she sought to rescind the sale of her real property on grounds of undue influence and conflict of interest. Specifically, McKinney alleged that: (1) she was mentally incompetent when she executed the real estate purchase agreement and subsequent sale of her real property; (2) Brown exerted undue influence over her regarding the sale of her real property below the appraised value; and (3) a conflict of interest existed because Brown had encouraged McKinney to hire BB&C, counsel of Browns choosing, to represent her in the real estate transaction when WLF and Brown already had a contractual agreement with BB&C. On April 27, 2009, BB&C filed a motion for summary judgment. On June 30, 2009, Brown and WLF filed a motion for summary judgment and a memorandum of law. On July 30, 2009, McKinney filed her designation of evidence and response to Brown and WLFs motion for summary judgment. On August 11, 2009, WLF filed a reply in support of its motion for summary judgment and motion to strike. McKinney filed a reply on August 31, 2009. On September 10, 2009, the trial court conducted a hearing on BB&C and WLFs motions for summary judgment and took the matter under advisement. On October 6, 2009, the trial court issued an order granting Brown and
6

The lawsuit pertained to legal representation wholly independent of the instant real estate transaction.

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WLFs motion for summary judgment and dismissing McKinneys counterclaim. The trial court did not rule on BB&Cs motion for summary judgment. McKinney now appeals. Additional facts will be provided as necessary. DECISION McKinney argues that the trial court erred in granting Browns motion for summary judgment and in dismissing her third-party complaint against WLF seeking to rescind the real estate contract. Specifically, she argues that she designated sufficient evidence to establish that genuine issues of material fact exist regarding whether: (1) Brown exerted undue influence over her to induce her to sell her property for less than its appraised value; and (2) whether Brown and Bennett had a conflict of interest which operated to her detriment in the underlying real estate transaction.7 The well-settled standard of review for a summary judgment ruling is as follows: A party is entitled to summary judgment if no material facts are in dispute and as the facts stand, under the law, the party is entitled to a judgment in its favor. Ind. Trial Rule 56(C) ("The judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."). When reviewing the propriety of a ruling on a motion for summary judgment, this Court applies the same standard as the trial court. Review is limited to those materials designated to the trial court. The Court accepts as true those facts alleged by the nonmoving party, construes the evidence in favor of the nonmoving party, and resolves all doubts against the moving party.
McKinney also argues that a genuine issue of material fact exists regarding whether Bennetts answers to interrogatories violated attorney-client privilege with respect to his representation of McKinney. We do not reach this claim inasmuch as we find her initial contentions to be dispositive.
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Estate of Mintz v. Connecticut General Life Ins. Co., 905 N.E.2d 994, 998 (Ind. 2009) (some internal citations omitted). The party seeking summary judgment bears the burden of making a prima facie showing, by specifically designated evidence, that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Splittorff v. Fehn, 810 N.E.2d 385 (Ind. Ct. App. 2004). Finally, the party appealing from a summary judgment decision bears the burden of persuading this court that the ruling was erroneous. Id. If there is any doubt as to what conclusion a jury could reach, then summary judgment is improper. Trent v. National City Bank of Indiana, 918 N.E.2d 646, 651 (Ind. Ct. App. 2009). 1. Legal Background a. Undue Influence McKinney argues that the designated evidence creates a genuine issue of material fact as to whether Brown exerted undue influence over her in the real estate transaction. Undue influence is essentially a question of fact that should rarely be disposed of via summary judgment. Gast v. Hall, 858 N.E.2d 154, 166 (Ind. Ct. App. 2006). It has been defined as the "exercise of sufficient control over the person, the validity of whose act is brought into question, to destroy his free agency and constrain him to do what he would not have done if such control had not been exercised." Carlson v. Warren, 878 N.E.2d 844, 851 (Ind. Ct. App. 2007). "It may flow from the abuse of a confidential relationship in which ,,confidence is reposed by one party in another with resulting superiority and

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influence exercised by the other." Barkwill v. Cornelia H. Barkwill Revocable Trust, 902 N.E.2d 836, 839 (Ind. Ct. App. 2009). [Undue influence] is an intangible thing that only in the rarest instances is susceptible of what may be termed direct or positive proof. McCartney v. Rex, 127 Ind.App. 702, 706, 145 N.E.2d 400, 402 (1957) ("The difficulty is also enhanced by the fact universally recognized that he who seeks to use undue influence does so in privacy."). As such, undue influence may be proven by circumstantial evidence, and the only positive and direct proof required is of facts and circumstances from which undue influence may reasonably be inferred. "As circumstances tending in a slight degree to furnish ground for inference of fraud or undue influence, it is proper to consider the character of the proponents and beneficiaries, and interest or motive on their part to unduly influence the testator, and facts and surroundings giving them an opportunity to exercise such influence." Gast, 858 N.E.2d at 166 (some internal citations omitted). "[A] confidential relationship sufficient to allow for a successful undue influence claim may arise either as a matter of law or can be shown on the particular facts of a case."8 Carlson, 878 N.E.2d at 851. In analyzing confidential relationships in fact, we employ the following analysis: Instead of creating a rebuttable presumption of undue influence, the burden in such a situation rests with the plaintiff to establish not only the existence of a confidential relationship in fact between the parties but also to prove that "the parties to the questioned transaction did not deal on terms of equality." The plaintiff "must prove either the dominant party dealt with superior knowledge of the matter derived from a fiduciary relationship, or dealt from a position of overpowering influence as to the subordinate party." Only when the plaintiff has shown this and that "the result was an unfair advantage to the dominant party" will the burden of proof shift to the defendant. The defendant then has an affirmative duty to show that "no deception was practiced, no undue influence was used, and all was fair, open, voluntary, and well understood."
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Neither party contends that the instant facts involve a confidential relationship as a matter of law.

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Id. at 852 (internal citations omitted). Here, we are tasked with determining if the designated evidence reveals that a genuine issue of material fact exists as to whether: (1) McKinney and Brown had a confidential relationship that gave rise to McKinneys sense of trust and confidence in Brown; (2) whether McKinney relied upon said sense of trust and confidence in the real estate transaction; (3) whether Brown gained "resulting superiority and influence"; and (4) whether Brown exerted said influence in a manner that "destroy[ed] [McKinneys] free agency and constrain[ed] h[er] to do what [s]he would not have done if such control had not been exercised," resulting in an unfair advantage to Brown. Barkwill, 902 N.E.2d at 839; Carlson, 878 N.E.2d at 851. b. Conflict of Interest Next, with regard to conflicts of interest in legal representation, Rule 1.7 of the Rules of Professional Conduct provides that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) The representation of one client will be directly adverse to another client; or (2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyers responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. Prof. Cond. R. 1.7.

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Here, we must determine whether the designated materials support the finding that genuine issues of material fact exist as to whether: (1) Brown and WLF had a preexisting contractual relationship with Bennett and/or BB&C; (2) whether Brown encouraged McKinney to hire Bennett to represent her in the real property transaction to sell her farm house and farmland to Brown; and (3) whether Brown and Bennetts shared interests were inconsistent with Bennetts proper representation of McKinneys interests in the real property transaction. 2. McKinneys Designated Evidence a. Susan Crum's Affidavit In support of her contentions that she was mentally incompetent when she entered the underlying real estate transaction and that Brown knowingly took advantage of her physical vulnerability and diminished mental capacity, McKinney first designates the affidavit of her daughter, Susan. See Susan Crum Affidavit, Ex. 1 at 108. Susan avers that Brown has a history of interfering in McKinneys household affairs as follows. After Mr. McKinney died, Susan and her brother, William, "saw to [McKinneys] needs as [McKinney] was incapable [of] run[ning] a household on her own." Id. McKinney decided to move into the farm house -- a decision opposed by her children as "potentially dangerous," "not in her best interest," "not a safe living

arrangement situation," and impractical "for an 85 year old woman with [her] physical limitations" to maintain, "due to [her] health and mental state," and given living conditions that made the farm house unsuitable to McKinneys needs. Id. Susan avers 12

that over the objections of McKinneys children, "Brown assisted [ ] McKinney with moving back into the ,,farm house"; however, the move "was short-lived as [ ] McKinney was not able to properly care for herself" there. Id. Susan also avers that McKinney has a history of memory loss and diminished capacity -- particularly regarding financial matters -- and attributes McKinneys prior estrangement from her children to said impairment. Specifically, she avers that

McKinney "is often unaware of decisions she has made in the past, is easily confused and suffers from many physical and mental ailments," which she "suffered from at the time of [Mr. McKinney]s death in November 2002." Id. at 110. She avers that in December 2001, McKinney liquidated several financial instruments, but "due to [her] memory loss and diminished capacity, [McKinney] was unable to remember this transaction and wrongly9 accused [Susan] of theft." Id. at 109. She also avers that in July 2003, McKinney withdrew funds from a money market account, opened a certificate of deposit, deposited the balance into her checking account, and subsequently "cashed" the certificate of deposit; however, "the whereabouts of these funds" is unknown. Id. In addition, Susan avers that McKinney has a history of making erratic judgments relating to the disposition of her estate and her choices of representatives to handle her estate and business matters. She avers that McKinney has previously appointed and revoked numerous powers of attorney, including the granting of a power of attorney to Brown in January 2005. She also avers that "[w]ithin nine months of that appointment,
9

The addendum to Susans affidavit contains the paper trail of McKinneys December 2001 transaction.

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Ty Brown . . . had [McKinney] admitted to Wesley Manor Assisted Living," id. at 108; that McKinney "accused Ty Brown and his family of stealing jewelry and silverware from her residence while she resided in Wesley Manor," id. at 109; that McKinney was "very upset" and revoked Browns power of attorney on October 13, 2005, (McKinneys app. 108); and that "on December 26, 2006, Ty Brown visited [ ] McKinney to discuss her Will," which "visit upset Mrs. McKinney greatly."10 Id. at 108. In their respective designated affidavits, as discussed below, Brown and Bennett deny that McKinney was of unsound mind during the negotiation, execution, or closing stages of the underlying real estate transaction. Rather, they argue that at all times relevant, McKinney displayed mental acuity, lucidity and indicated that her discounted sale of her farmhouse and farmland was "her own free and voluntary act." (McKinneys App. 56-57). b. Appraisal Next, McKinney argues that the significantly discounted purchase price raises genuine issues of material fact as to her mental competency with regard to the valuation of her real estate and whether Brown secured such favorable pricing terms by exercising undue influence over her. She designates the appraisal report (see Appraisal of Farm Real Estate, Ex. 3 at 128-163), which states the market value of McKinneys farm house

In Bennetts affidavit, cited below, he avers that McKinney executed a will wherein she devised the residue of her estate to Brown. McKinneys designated materials include wills that McKinney executed on October 18, 2005; October 11, 2006; March 13, 2007; March 3, 2008. See Prior Wills Executed by Mary E. McKinney, Ex. 2 at 203-219.
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and farmland as $456,000.00. Here, Brown and WLF purchased the farmhouse and farmland for $200,000.00 -- $256,000.00 below appraised value. In their designated affidavits, Brown and Bennett counter that McKinney sold her property for less than appraised value because of her deep appreciation for the Brown family, her desire to disinherit her children and grandchildren, and her belief that Brown would prevent her children or grandchildren from gaining ownership of her real estate. c. Brown's Farm Proposal In further support of her claim that Brown exerted undue influence over her, McKinney designated the following written documentation of Browns proposal to buy her farmhouse and farmland: Proposal to purchase house and farm: Estimated value of farm and house: $400,000[.] My offer is $200,000 for farm and house. I require that an attorney represent you. I can recommend one from the law firm that I will use. An attorney will represent me. It shall be written in the contract that you can live in the house of the rest of your lifetime rent-free. I will pay all utilities and will pay up to $1000 per year in repairs to [the] house. I would think that we could get this done within the next few weeks if you want. Let me know what you think and I can have a purchase agreement drawn up. 15

Mary, if you would want to sell for less I would buy for less, but $200,000 is about the most I think I could afford for this year. Ty Brown See Mary E. McKinney Farm Proposal Prepared by Ty Brown, Ex. 4 at 165 (emphasis added). In summary, McKinney contends that her designated evidentiary materials raise genuine issues of material fact exist as to whether Brown exercised undue influence over her in the underlying real estate transaction," to-wit: (1) Browns offer to pay

$256,000.00 below the appraised value of her farmhouse and farmland; (2) Browns insistence that she be represented by counsel and his offer to recommend an attorney to her "from the law firm that [he] w[ould] use" to represent his interests; (3) Browns alleged referral to attorney Bennett for McKinneys legal representation; (4) Browns proposal to close the transaction on an expedited basis; (5) Browns offer to buy the real property for a price lower than $200,000.00, "if [McKinney] would want to sell for less"; and (6) Browns failure to be represented by counsel in the transaction as he had initially indicated.11 Id.

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The record indicates that on numerous occasions via email or other correspondence, Brown -- and not an attorney representing him -- communicated his preferences directly to Bennett. See November 16, 2004 letter from Bennett to McKinney, stating in pertinent part, the following: On November 5, Mr. Brown e-mailed me and said that he had spoken with you [McKinney] about an adjustment of the terms. He said the price was to be $200,000 for the farm and the farm house, and that you would keep the Bedford stone house. He also said that there would be no personal services included in the contract, but just a standard real estate purchase agreement. He also said he was willing to take the risk of entering into this transaction without [the psychiatric evaluation] and expressing his opinion on your competency because he (Ty Brown) knows full well how competent you are and thinks he can produce a number of witnesses to corroborate that if it becomes necessary. (McKinneys App. 172).

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d. Correspondences between Brown and Bennett Next, McKinney designates the following correspondences to her from Bennett and Brown in support of her claims of undue influence, conflict of interest, and that during his representation of McKinney, Bennett took certain action that arguably furthered Browns interests over her own. In a December 30, 2004 letter from Bennett to McKinney, Bennett advises McKinney to write a letter to Ty Brown explaining, in your own words, why you sold him the farm at a bargain price and why you are leaving things to him in your Will instead of leaving it to [McKinneys children,] Susan Crum and William John McKinney. You dont need to go into a lot of detail about what you told me, but pointing out that they have been inattentive to your needs and that they took you to court to try to meddle in your affairs would be helpful to explain the motivation for doing that youre doing, and even more important, to show that you are of sound mind as you make the decision and are not acting as Tys [Browns] puppet somehow. The letter probably should be sent after you have signed your Will, but it could be very helpful to Ty if your children come in and challenge your Will or challenge the bargain sale of real estate. Very truly yours, [BB&C] Roger Wm. Bennett See Correspondence from Roger W. Bennett to Mary E. McKinney, Ex. 5 at 174. McKinney also designated Browns post-closing letter to her, wherein he directs her to "[w]rite a letter to [him]." See Ty Browns "Write a Letter to Me," Ex. 8 at 181. In that letter, Brown suggests how McKinney should address questions pertaining to the transaction as follows: 17

Write a letter to me. Might want to include some of the following information: Why did you sell it to me instead of giving family first chance? a.) family has not been considerate of my needs b.) family just wanted to boss me around c.) family was more interested in my money than me d.) Family refused to leave farm house when asked and had to go to court e.) I had known Ty since 1996 and he has always been honest with me. f.) [Mr. McKinney] thought it was time that [William] and his family leave the house and selling it to Ty was one way to see that that happened. g.) Since [Mr. McKinney]s death my kids have NOT treated me at all like a mother. They have shown me no respect. Why did you sell it below market value? a.) I did not need the money. b.) As a way of paying Ty for his time spent to help me as my needs increase as I get older. c.) So that he would feel obligated to honor my wishes and not sell the farm to any of my family. d.) To help out a young farm family[.] Id. (emphasis added). McKinney also designated correspondence between Brown and Bennett, wherein Brown communicated information to Bennett that ordinarily would be conveyed by Browns counsel and relayed McKinneys instructions regarding the structuring of the real estate transaction to Bennett, McKinneys purported counsel. The designated letters and/or emails provide as follows:

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October 15, 2004 Email from Brown to Bennett An update: I did call [McKinney], she mentioned to me she had something from you and wanted me to look at it. I told her I preferred not to. I told her I did not want to be seen as influencing her decision. She said she would call you. We did move her to the farmhouse over one month ago. She said the house was too open for her and she did not feel safe walking around. The plans now are to get the Bedford [stone house] cleaned up and to move her back to the Bedford after harvest. My Mom has been running her around and helping her clean. I felt this might happen and [that] is why I suggested in the paper I gave you that she should live in the house of her choice. For her protection it might be best if she kept ownership of the Bedford [stone house] since she wants to move back and for her to just sell the farmhouse and the farm to me. She had also mentioned that to me a while back. A number that we had talked about a while back for the farmhouse and the farm was $100,000. If she were to keep ownership of one house I think that would make this deal less complicated. See E-Mail from Ty Brown to Roger Bennett, Ex. 14 at 229. Next, McKinney designated the following November 5, 2004 email from Brown to Bennett: Roger, Spoke with Mary this morning. Purchase price of $200,000 for farm and farm house. She will keep the Bedford [stone house]. No personal care services to be included in the contract. Just a standard purchase agreement. I told her you would prepare a new agreement to reflect the changes and would mail it to her for her review. $5000.00 earnest money is fine

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