Ex-Parte is legal Latin for ‘without the other party’. A litigant’s counsel is not allowed to have ex-parte conversations with the Judge. This is violation of Judicial Cannon 3B(7).
‘A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.’
I believe there has been at least three intances of ex-parte communication between Swayze Alford and Judge Whitwell. There is certainly cause for an investigation of this allegation. I will present the facts so that the Mississippians may decide on cause for action.
The first instant of evidence of possible ex-parte occurred at the hearing for summary judgement on January 25, 2023 in Lafayette County when Judge Whitwell interrupted the proceedings and began to interrogate me on when I went to the Batesville branch of Regions Bank and was told that my father revoked my POA.
Specifically, at the time I was recounting the testimony of Evelyn Stevens from her deposition where she admitted to taking SR to Jay Westfual’s office to have my POA revoked. Judge Whitwell interrupted so that he may examine me on the following (Summary Judgement Transcript 7:29):
HONORABLE ROBERT Q. WHITWELL: Now, you went to — did you go to Regions Bank in Batesville?
MR. ROBERT SULLIVANT, JR.: I absolutely did not.
HONORABLE ROBERT Q. WHITWELL: You did not go to Regions Bank in Batesville?
MR. ROBERT SULLIVANT, JR.: (Nodding head negatively).
HONORABLE ROBERT Q. WHITWELL: And you were not told at Regions Bank that the power of attorney had been given to them and that you could not withdraw the funds?
MR. ROBERT SULLIVANT, JR.: Absolutely not.
HONORABLE ROBERT Q. WHITWELL: You’re under oath, Mr. Sullivant.
MR. ROBERT SULLIVANT, JR.: Yes, I understand that completely.
HONORABLE ROBERT Q. WHITWELL: But then you went to Oxford —
MR. ROBERT SULLIVANT, JR.: I started at Oxford.
HONORABLE ROBERT Q. WHITWELL: Okay. But you found out over there, didn’t you, at Batesville —
MR. ROBERT SULLIVANT, JR.: No. I never went to Batesville.
HONORABLE ROBERT Q. WHITWELL: How did you find out about the power of attorney?
MR. ROBERT SULLIVANT, JR.: Well, I found out, basically, when I received a lawsuit and that was one of the exhibits. And my father did state in his interrogatory in the discovery that he
never told me.
HONORABLE ROBERT Q. WHITWELL: Yeah, he stated, also, that the bank told you in Batesville —
MR. ROBERT SULLIVANT, JR.: Well —
HONORABLE ROBERT Q. WHITWELL: — in his interrogatory response; did he not?
MR. ROBERT SULLIVANT, JR.: Right. So that — I believe that would be hearsay —
HONORABLE ROBERT Q. WHITWELL: Let’s not leave out all of it. Let’s put it all in there.
MR. ROBERT SULLIVANT, JR.: Right.
HONORABLE ROBERT Q. WHITWELL: The Court has read your paperwork and read this file.
MR. ROBERT SULLIVANT, JR.: Correct. And I would —
HONORABLE ROBERT Q. WHITWELL: You accused Mr. Alford of a half truth in some of your responses, and now you’re telling me a half one there, that he did answer that he thought the bank had told you in Batesville about —
MR. ROBERT SULLIVANT, JR.: I understand — yes, I understand that has been stated, but it is not the truth. Why would I go to Batesville —
HONORABLE ROBERT Q. WHITWELL: Well, that’s a fact. Whether it is or not, it’s a disputed fact. He says yes, and you say no. So that would be something that I would have to consider in a factual basis.
MR. ROBERT SULLIVANT, JR.: And I would reply that there is no evidence that I went to Batesville.
HONORABLE ROBERT Q. WHITWELL: Well, that’s your testimony. So anything further on your motion?
It should also be noted that in this passage Judge Whitwell FALSELY accuses me of lying under oath, which I will get into in a later blog.
The first reference in the record of the alleged trip to Batesville, is by SR in his Compaint (¶ 8).
‘Upon information and belief, Sullivant, Jr. went to the Regions Bank in Batesville and attempted to withdraw funds from Sullivant, Sr. ‘s new money market account, but was turned down. Sullivant, Jr. then went to the Regions Bank in Oxford, where he successfully withdrew and transferred the sum of $230,000.00 from Sullivant, Sr.’s new money market account to an account only in his name.‘
This is not even hearsay. It is speculation, and not anything specific, just a general ‘belief.’ This testimony does not qualify as admissible evidence, but the Judge either based his spurious line of questioning on ¶8 of the Complaint or someone with an interest in the Judge believing that I had to have gone to Batesville, communicated, and emphasized this to the Judge to the point it made the Judge angry. This assumption severely limits the possible suspects to a scant few.
The second reference to the alleged Batesville trip is in my Answer (¶ 8), Which I signed and attested to as a court filed document.
‘Defendant admits that he went to a Regions Bank in Oxford, Mississippi, where he was able to reverse the $230,000.00 transaction. Defendant denies that he went to a Regions Bank in Batesville, Mississippi, and attempted to do that same thing there. The remaining allegations in Paragraph 8 ofPlaintiffs COMPLAfNT are denied. Defendant would affirmatively show that he promptly placed $50,000.00 within his father ‘s reach in his father ‘s individual TD AmeriTrade account, paid $6,000.00 on his father ‘s credit card, and moved another $5,000.00 into the joint checking account with his father and continued to pay his father ‘s mortgage and utility bills.‘
Furthermore in ¶ 16 of in my Affidavit of Support of Summary Judgement (filed December 8, 2022) I state:
‘Finally, I had absolutely no notice or knowledge that the Plaintiff had revoked the power of attorney at the time I reversed the transaction. The Plaintiff has failed to offer any evidence or argument that he did in fact notify me and this failure forecloses on each and every claim stated in the Complaint.’
The POA states (at bottom of pg 4) –
‘Without limiting the foregoing paragraph, any action so taken by my attorney without actual knowledge of my death shall be, pursuant to the Uniform Durable Power of Attorney Act, Miss. Code Ann. §87-3-113, deemed to be an action in good faith under this power. An affidavit executed by my attorney stating that he did not have, at the time of exercise of a power, actual knowledge of the termination of this power by revocation or my death, is conclusive proof of the non-revocation or non-termination of the power at that time. If the exercise of this Power of Attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is likewise recordable.‘
As stated above the language in the POA is the restated as the law in the Uniform Durable Power of Attorney Act, Miss. Code Ann. §87-3-113.
Hence, per the Mississippi Law there is conclusive proof that I did NOT go to Batesville to transfer the funds, nor was aware of the attempted revocation. Therefore the lawsuit Swayze concocted without evidence, now has no basis in law. It was critical to Swayze that the Judge believe, as unreasonable as it was, that I went to Batesville, and was notified of the revocation. Swayze’s malicious suit against depends on that I was notified of the revocation, else there is no case, and no means for Swayze to ‘earn’ ‘legal’ fees for his work. Is that why Judge Whitwell, contrary to the record and brought up out of thin air, was convinced that I did go to Batesville, and said I was telling a ‘half truth’ when I said that I did not? How could Judge Whitwell be so certain as to testify that I was telling a ‘half truth’ based on what was in the court record?
The second instance of probable ex-parte cause occurred at the same summary judgement hearing when Judge Whitwell, like before out of no where accuses me of an illicit event that did not happen, and is no where in the record. That is putting a PIN on a TDAmeritrade account so my father could not access it. (Summary Judgement Transcript 11:24)
HONORABLE ROBERT Q. WHITWELL: All right. That’s his allegation in his answer and affidavit. It also says that you only put $50,000.00 in the Ameritrade, and you put it in your name with your PIN — you put it in his name, but you had your PIN on it. He couldn’t get into it because you kept the PIN to open the account; is that not right?
MR. ROBERT SULLIVANT, JR.: No, Your Honor, that is not correct. That was one of the other things I wish to correct. And that is, I had given my father credentials, showed him how to get on to the website, and each month I would show him the balances. I would tell him what was going on with his two accounts, and he didn’t want to show any interest. And I wrote down the credentials for him when we lived at the farmhouse, and he never went on to the website at all. So then after the lawsuit was filed, I was asked to give him some credentials. So I didn’t remember what his were, so I changed — you know, I went through the process of changing it and gave him the credentials so he could log on. I understand it was quite hard, as it should be, but, I assume, he got on to it.
No where in the record does it say that I put my PIN on SR’s TDAmeritrade account, so he could not access it. The bank sends the a PIN to the customer’s cell phone. The customer does not put the PIN on the account. The PIN is randomly generated by the bank at the time of the login. The PIN is only good for a matter of minutes, then it expires. It is non-sensical, false statement made by Judge Whitwell about me, that not only shows his bias and prejudice, but his ignorance of common personal business transactions.
Let’s take a look at what may have happened, and decide for ourselves if there may be probable cause for the allegation of ex-parte communication.
As we can see from exhibit 16 of Plaintiff’s Reposne to Summary Judgement, I furnished Brad Golman the credentials for SR’s TDAmeritrade account on December 10th, 2021 as requested by Brad that had been requested from Swayze Alford.
From exhibit 14 of the same response, an email from Swayze Alford to Brad Golman, that states:
‘Also, you sent the credentials for Mr. Sullivant to access his TD Ameritrade account. However, when the access information is put into the login, your client’s cell phone number comes up to verify the account. SO my client still does not have access to the account. Please have your client change the phone number on the account. I look forward to hearing from you.’
One can ascertain that Swayze was referring to a PIN, but did not state the word PIN. I assert that I did change the contact number to SR’s cell phone. We need more specifics or evidence from Swayze to figure it out. I did send the credentials. The credentials were true. None the less, Swayze is SR’s attorney, he should have been able to get access to the account without a PIN that it sent to contact number. For the record, I did not receive the PIN at my number as Swayze’s claims. Frankly, for Swayze to blame me for Kayla’s and his plain incompetence is incompetent.
In exhibit 15 of the same response we see a text message between Brad Golman and Kayla Ware between January 20 and 24, 2022. On the 20th Kayla messages Brad that the ‘TDAmeritrade login is still going to the son’s number’. I do not believe it was. Brad replies back that the two-factor authorization [not PIN] was switched to a certain number. I am assuming, I gave Brad that information. I assume the number he gave is the one I entered into the profile page for contact number. I do recall Brad contacting me several times about the trouble Kayla was having. Each time I responded immediately. On the 24th apparently Kayla finally made some progress and was trying to answer security questions for the two factor authentication. Apparently, I gave Brad the correct answer to the security question and was able to get in.
Let’s be sure the Judge had bogus information supplied from somewhere besides the record. In the hearing for recusal (34:25) Judge Whitwell states –
HONORABLE ROBERT Q. WHITWELL: I said the word PIN because in the record, it’s about four times, that you set up an account, didn’t give the telephone number to your dad. You didn’t give the credentials to him. You set up the account in your own name. Later, there was a text from Mr. Golmon where, I think, you gave dad the credentials.
I don’t know the difference between a credential and a PIN, but I’m telling you right now Mr. Alford never told me anything about a PIN. And that’s what I called it. I call it a PIN because that’s what I do. I do a PIN to get in my phone or a PIN code or whatever. I don’t know anything about credentials.
MR. ROBERT SULLIVANT, JR.: Well, a PIN –
HONORABLE ROBERT Q. WHITWELL: I will be honest, I’m not very savey in Ameritrade or any other accounts, so —
MR. ROBERT SULLIVANT, JR.: All right. Well, just to be clear —
HONORABLE ROBERT Q. WHITWELL: — made up and trying to be some –
MR. ROBERT SULLIVANT, JR.: There is a difference between a PIN number and credentials. And PIN number has never been mentioned in the record before –
HONORABLE ROBERT Q. WHITWELL: I mentioned it, because that’s what I thought it was.
MR. ROBERT SULLIVANT, JR.: I don’t know where you would have gotten that.
HONORABLE ROBERT Q. WHITWELL: Well, that’s what I’m telling you. I don’t know the difference in them. I’m telling you that right here.
MR. ROBERT SULLIVANT, JR.: I am surprised to hear that, Your Honor.
HONORABLE ROBERT Q. WHITWELL: Well, you can be surprised. I know very little about telephones, computers. I have people to do all of that. I don’t know anything about – I really don’t know what PIN numbers are. I have never heard the word credentials until I saw it in the affidavit.
MR. ROBERT SULLIVANT, JR.: To be factual, I did not have my credentials on his account. Per instructions from Mr. Golmon, I put — I set up — the accounts were all tied together with my accounts. I broke them apart. Gave my father his own credentials, which he had credentials before. He just never used them. And I gave them to Mr. Golmon to give to Mr. Alford. And there was no mention of PIN – I just don’t follow that connection between credentials and accusing me of putting my PIN number on his account so he cannot access it, which is what you stated in the record.
HONORABLE ROBERT Q. WHITWELL: It’s pretty clear that you put it
MR. ROBERT SULLIVANT, JR.: Well –
HONORABLE ROBERT Q. WHITWELL: — in the record.
MR. ROBERT SULLIVANT, JR.: — I disagree with that.
HONORABLE ROBERT Q. WHITWELL: That’s what I —
MR. ROBERT SULLIVANT, JR.: That’s all I have. I appreciate it. Thank you, Your Honor.
The above testimony is clear that Judge Whitwell does not know what a PIN is when he states at 36:14 “I really don’t know what a PIN is”, but he has accused me of putting one on SR’s account. We still have no idea where he got that from. It is clear it was not from the court record. It is clear the Judge gained some information from an outside source, but did not understand what somebody told him well enough to lie about to a CPA. None the less, he is sure of his illogical, false testimony that also he does not understand that he states at 37:6 “It’s pretty clear that you put in your name.” I do not even know what this means, but its false.
Note that Judge Whitwell at line 34:25 states “I said the word PIN because in the record, it’s about four times.” This is undisputedly a false statement made by Judge Whitwell meant to cause me prejudice. The statement is proven false by the record itself. Either Judge Whitwell is suffering from schizophrenia, or someone used the word ‘PIN’ to describe to the Judge their difficulties in logging into their client’s own account, and blamed it on me. I would ask you to re-read exhibits 14-16 from the hearing on summary judgement for a hint on who I believe gave Judge Whitwell this ex-parte information.
What really happened is that Kayla Ware did not have the common sense to access the account. Brad Golman asked me to put the credentials for the TDAmeritrade account in an envelope (Exhibit 16 Response to Recusal), and that he would give to Kayla. I did this. First, I did change the existing credentials, as they were my credentials to our linked TDAmeritrade accounts. I tested the credentials that I gave to Brad before giving them to him. They worked.
From the texts between Kayla and Brad, and the email from Swayze to Brad, a reasonable person with basic online banking common sense, would know the financial institutions asked for a two-factor authentication to log into the account. Meaning the financial institution will send a Personal Identification Number (PIN) to the customer’s cell phone on record. For the record, I specifically remember putting my father’s known cell number into his TDAmeritrade profile page. Also, I never received a text from TDAmeritrade with a PIN to logon to the account.
At the time the Judge accused me of putting my PIN on the account, I thought that I do not remember anything about a PIN being in the record, so why is the Judge entering this false testimony about into the record. Let’s look back at Swayze’s email to Brad. Seems like a reasonable person, especially one that knows Swayze, would think he is not happy that Kayla had difficulties following the directions to log onto her client’s online investment account.
After the shenanigans at May 9th hearings, I decided that not only was I not going to get a fair trial, which I had known for a while, that I needed to do something about it. I thought it was time to research the record for any mention of a PIN prior to the day of the Judge accusing me of putting a PIN on SR’s TDAmeritrade account. It is an undisputed fact that that there is no mention of a PIN. Makes sense, because not did I not put a PIN on the account, customers don’t put PINs on accounts. Anyone that would state such an illogical accusation is showing their ignorance of what their sworn before God duty is to the people of Mississippi.
At the hearing on recusal, the Judge said it is mentioned four times. It is not.
Is there cause that Swayze told the judge that I put a PIN on the TDAmeritrade account so that SR could not access it? I believe the clear and convincing evidence says yes.
The third case of suspected ex-parte occurs when the Judge accuses me of not loving my father, because of something that he said he saw. The Judge could not have seen what he accused of for two reasons. The first is, it never happened. Secondly, he was not in the courtroom when the supposed event would had taken place. Judge Whitwell stated at the hearing for conservatorship (6:4)
I have read your petition, Mr. Sullivant. One of the things that showed of interest was that you had such a great relationship with your father.
The Court didn’t come in on a watermelon truck. I was present in Holly Springs when you were there last time.
And after the hearing was over, you sat there while Mr. Sullivant got up and left the room. You never even spoke to him. You never even went over and hugged him. You did nothing.
As far as I’m concerned, there is no closeness of a relationship that would allow me to appoint you as conservator to
handle this matter.
So for that reason and other reasons, Sherry Wall will be appointed the conservator. The defendant’s emergency petition will be denied.
Any other matters involved in that petition that you want to bring forth to the Court can be brought at a later time — can be brought up at a later time. The next — that takes care of number two.
Where do I start with this disgusting lie the Judge just made? Not only was it a lie told by the Judge it was extraordinary prejudicial to me.
First, the statement the Judge makes “And after the hearing was over, you sat there while Mr. Sullivant got up and left the room. You never even spoke to him. You never even went over and hugged him. You did nothing.” never happened. Secondly, the Judge was long gone from the courtroom by the time SR got up and left the courtroom. Judge Whitwell was not even in the courtroom.
As usual the Judge ended the court session, got up and left the courtroom for his chamber. A few minutes before court was called to order, SR and Evelyn Stevens came into the courtroom. I was surprised to see that they come up to Holly Springs to watch the proceedings. They sat a few rows behind Swayze in the gallery area on the left of the court room facing the Bench. I was already seated at the right counselor’s table preparing my notes as the Judge entered. We all rose, and the Judge called the court into session. The only matter on the docket was the Motion to Set Aside Default. The matter took about 30 minutes.
As court ended I gathered my notes. By the time I had gathered my notes, the Judge had left the court room. I decided I was going to speak to my father and see how he was doing. He had sat on the left side of Evelyn for the entire hearing, so when I approached She and Swaze were helping my father get up from the cramped pews. I was standing right behind Swayze and Evelyn as they were helping my father. It was taking a while. Since it was taking a while, and I did not feel comfortable talking to my father in the cramp area with Evelyn and Swayze between us, I went outside to the lobby where there is more room, and waited for my father. Swayze came out. I did not see my father or Evelyn. Swayze began to speak to me about Dr. Perkins coming to Oxford to examine my father, as we walked outside the building. Once outside I looked around and did not see SR’s car, or him. Matter of fact, once outside I did not see Swayze, or his vehicle.
It is indisputable that I did go up to my father to speak to him. Swayze did not see me as he was facing my father helping him get up. After waiting long enough to tell it would be better if I got out of the way in aisle, I walked into the lobby to meet my father where I could speak to him without Evelyn and Swayze between us.
There were few people in the court room that morning. The judge was NOT in the court room when I left. Also, I stepped out of the court and into the lobby before my farther started to walk out. The Judges testimony that my father left before I did is not only false, but non-sensical, as it takes my father along time to get up after sitting for 30 minutes in a pew. Swayze did not see me waiting behind, because it took so long for my father to stand up and get going. Swayze Alford was in the court room when my father left, not the Judge. Since the Judge was not in the court room, who would have told him that I did not go up to speak to my father after the hearing?
Like the PIN episode, at the recusal hearing the Judge gets lost in his lie when I accuse him of lying. He gets the story or lie he told confused, because in both cases they never happened, there is no record of it, and the Judge does not have direct knowledge, so when confronted the Judge gets tangled in his own web of hearsay.
I watched as your dad was sitting at the table right there and you were right here. You weren’t five feet from him. He is sitting there alone by himself. He wasn’t blocked by anybody at that time.
“I saw him — maybe Mr. Alford got in front of him, but you never spoke to him or anything. The reason I made that comment was, is because in your motion, in your emergency motion, you said, My dad and I have a loving relationship between us. And I didn’t see any loving relationship that day. I didn’t see you try to make an attempt to speak to him or hug him or anything else.
I was hoping somewhere along the line, Mr. Sullivant, that you and your day might speak and come back together some kind of way.
I made an observance as a judge, and I have a right to do that. I’m not testifying. I’m making a finding of what I saw and what I observed, and that’s what that was.“(Transcript July 7, 2023 37:26)
When the Judge states in the first line ‘the table right here’, he is referring to the counselor’s table where Swayze is sitting at the time. He then also says my father was sitting by himself. He says I was 5 feet from him.
My father never sat at the counselor’s table. He sat the entire time in the gallery. I was never with 45 feet of my father while court was in session. He sat on the left side of Evelyn Stevens in the pews behind Swayze. It is undisputeable that the Judge has gotten caught in lie by me, and lying to cover up the lie. Like the PIN episode, he is confused because somebody told him this, and he did not understand it well enough to lie about or to cover up his lie when he got caught.
Swayze Alford has strong motive for my Father and I NOT to reconcile. If my father was to drop the meritless suit against his son, Swayze faces a certain large claim for malpractice and malicious civil prosecution. If the Judge finally realizes that there is no evidence or even a law to base a claim on and rule against Swayze, I predict he will be good as broke.
Since the Judge was not in the courtroom, and the events never even took place, who WAS in the courtroom, and had motive to convince the Judge that I do not love my father?
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