Corrine Augustine Nichols Hill Shearer v. David Shearer, Individually and as Independent Administrator of the Estate of John William Shearer, III ( 2015 )

ACCEPTED
12-14-00302-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
4/24/2015 11:39:27 AM
CATHY LUSK
CLERK
NO. 12-14-00302-CV
IN THE TWELFTH COURT OF APPEALS FILED IN
12th COURT OF APPEALS
TYLER, TEXAS TYLER, TEXAS
4/24/2015 11:39:27 AM
CORRINE AUGUSTINE NICHOLS HILL SHEARER CATHY S. LUSK
Clerk
Appellant
v.
DAVID SHEARER, INDIVIDUALLY AND AS THE INDEPENDENT ADMINISTRATOR
OF THE ESTATE OF JOHN WILLIAM SHEARER, III
Appellee
Appeal from the County Court at Law No. 2
Gregg County, Texas
REPLY BRIEF FOR APPELLANT
J. CHAD PARKER
cparker@theparkerfirm.net
Bar Card No: 15489000
FORREST F. MAYS
fmays@theparkerfirm.net
Bar Card No: 24072228
THE PARKER FIRM, P.C.
3808 Old Jacksonville Rd.
Tyler, Texas 75701
(903) 595-4541 - telephone
(903) 595-2864 - facsimile
Attorneys for Appellant
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant/Defendant
Corrine Augustine Nichols Hill Shearer
Counsel for Appellant
J. CHAD PARKER
Bar Card No: 15489000
FORREST F. MAYS
Bar Card No: 24072228
THE PARKER FIRM, P.C.
3808 Old Jacksonville Rd.
Tyler, Texas 75701
Attorneys for Appellant Corrine Augustine Nichols Hill Shearer
Appellee/Plaintiff
David Shearer, Individually, and as Independent Administrator of the Estate
of John William Shearer, III
Counsel for Appellee
CARSON RUNGE
SLOAN, BAGLEY, HATCHER & PERRY
101 East Whaley Street
Longview, Texas 75601
State Bar No. 24059262
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................................... i
INDEX OF AUTHORITIES ....................................................................................... i-iii
REPLY TO POINTS RAISED IN APPELLEES’ BRIEF ................................................. 1–9
I. Corrine did not waive its legally and factually sufficiency arguments by not
requesting particular instructions to accompany Question No. 5 in the
Court’s Charge or otherwise objecting to the Court’s Charge
II. The Appendix to Appellee’s Brief contains records that are not part of the
official clerk’s or reporter’s records
III. David relies on a demonstrative that is not part of the record on appeal in
support of his argument that the evidence is legally and factually sufficient
to support the existence of a fiduciary duty
IV. David fails to identify legally and factually sufficient evidence in the record
supporting an informal fiduciary duty as the evidence identified does no
more than buttress his subjective feelings of trust and confidence
V. David gravely misstates the holding in the Priebe case and IIED claim did
not constitute a “gap-filler” under these facts
CONCLUSION AND PRAYER ................................................................................. 10
CERTIFICATE OF COMPLIANCE WITH RULE 9.4(E) .............................................. 11
CERTIFICATE OF SERVICE ....................................................................................11
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INDEX OF AUTHORITIES
Cases
Johnson v. Johnson,
191 S.W. 366, 367 (Tex. Civ. App. – Texarkana 1916, no writ.) ............. 4
Osterberg v. Peca,
12 S.W.3d 31 (Tex. 2000) ...................................................................... 1–3
Priebe v. A’Hearn,
2011 WL 1330808 (Tex. App. – Houston [1st Dist.] 2011, no pet.) ..... 7–9
Vanderpool v. Vanderpool,
442 S.W.3d 756 (Tex. App. – Tyler 2014, no pet.) ................................... 1
Statutes
Texas Health & Safety Code 166.039(b) ............................................................. 9
Tex. Health & Safety Code Section 711.002 ....................................................... 9
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REPLY TO POINTS RAISED IN APPELLEE’S BRIEF
I. Corrine did not waive her legally and factually sufficiency challenges
by not requesting particular instructions to accompany Question No. 5
or otherwise objecting to the Court’s Charge
David argues that Corrine waived her legal and factual sufficiency challenge
by not requesting the addition of instructions on the “factors” courts consider in
determining whether a fiduciary duty exists. However, this argument is groundless.
Corrine has not asked the Court to review the legal and factual sufficiency of the
evidence against some phantom charge that she never requested. Rather, she is
properly asking the court to conduct a legal and factual sufficiency review of the
Court’s Charge, not some “other unidentified law”. See Br. of Appellee’s at p. 15.
Texas courts have considered those so-called “factors”, as David refers to them, in its
review of the “actualities of the relationship” which is the crucial inquiry in
determining whether an informal fiduciary duty exists. The actualities of the
relationship bear precisely on whether David justifiably placed trust and confidence
in Corrine or whether his trust and confidence was based merely on his subjective
trust and feelings. See CR 70–84; Vanderpool v. Vanderpool, 442 S.W.3d 756 (Tex.
App. – Tyler 2014, no pet.). Corrine has preserved her legal and factual sufficiency
challenges to Question No. 5.
David cites the Osterberg case, among others, in support of its waiver
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argument. However, Osterberg is clearly distinguishable from the case at hand. In
Osterberg, an El Paso candidate for judge (“the judge”) sued opponents of his
campaign (“defendants”) for knowingly making a campaign expenditure in violation
of the Tex. Elec.Code § 253.131. The judge claimed that the defendants violated
Chapter 253 of the Election Code by failing to report the direct campaign
expenditures they made for television advertisements they ran in opposition to him.
Chapter 253 prohibits direct campaign expenditures over $100 unless the spender
reports the expenditures in compliance with Election Code Chapter 254. The
defendants had not reported the expenditures by the deadlines required by Election
Code section 254.124. Under section 254.124, they were required to file a report no
later than the eighth day before the election. The defendants did not file a report until
May 4, 1994—nearly two months after the election and after the judge had filed suit.
Following a jury trial, the trial court held defendants jointly and severally liable for
Election Code violations and awarded the judge money damages and interest. 12
S.W.3d 31, 37 (Tex. 2000). The El Paso Court of Appeals held that the defendants
waived their contention that they “substantially complied” with the Election Code's
reporting requirements by filing a report on May 4, 1994—almost two months after
the election. Id. The Texas Supreme Court affirmed on the issue of waiver stating:
“[T]he court of appeals did not rule that the sufficiency points were not
preserved. As is clear from the court of appeals' opinion, the court considered
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the sufficiency points and concluded that the evidence was both factually and
legally sufficient to support the jury's answers to question four . . . The
[defendants] could instead be arguing that when a court submits a defective
issue to the jury, an appellate court should review the sufficiency of the
evidence against the question and instruction that the trial court should have
submitted—not the one actually submitted—even if the defect was never
brought to the court's attention and the question or instruction never requested.
That assertion is misguided. Even if [the judge] had a burden of proof with
regard to some substantial compliance standard—an issue we do not decide
today—it is the court's charge, not some other unidentified law, that measures
the sufficiency of the evidence when the opposing party fails to object to the
charge. Id. at 54–55 (emphasis added).
The Supreme Court observed that the defendants in Osterberg preserved the
sufficiency points as to the charge ultimately submitted to the jury. Accordingly,
unlike Osterberg where defendants raised for the first time on appeal error in the
failure to submit a charge containing “substantial compliance” as the standard,
Corrine is not asking this Court to review anything other than the legal and factual
sufficiency of the evidence against the Court’s Charge on which the jury rendered its
verdict based on the standard in Texas law determining whether an informal fiduciary
duty exists – the actualities of the parties’ relationship.
Those other cases cited by David are inapposite. Corrine is not making a legal
or factual sufficiency challenge where an element is missing from the charge and
Corrine failed to request a substantially correct charge or object to the charge that was
submitted. See Br. of Appellee at pp. 16–21.
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II. The Appendix to Appellee’s Brief contains records that are not part of the
official clerk’s or reporter’s records
Corrine would briefly point out that Tabs 1–3 of the Appendix to Appellee’s
Brief contain documents that are not part of the official Clerk’s Record or Reporter’s
Record on appeal. For the sake of accuracy in the record and to preserve any
complaint as to the contents of the appellate record, Corrine objects to the Court’s
consideration of Tabs 1–3 to the extent they are not derived from the official record.
See Tex. R. App. P. 38.5(a)(1). It appears that Tab 1 is redundant of the Court’s
Charge in Corrine’s brief. See id. at 38.5(a)(2). Corrine does not object to the Court’s
consideration of CR 29–41 or CR 7–19 that are the official portions of the record that
correspond respectively to Tabs 2–3 of the Appendix to David’s brief.
III. David relies on a demonstrative that is not part of the record on appeal in
support of his argument that the evidence is legally and factually sufficient
to support the existence of a fiduciary duty
The appellate court is bound by evidence in the record on appeal. Johnson v.
Johnson, 191 S.W. 366, 367 (Tex. Civ. App. – Texarkana 1916, no writ.). David
includes Plaintiff’s Demonstrative 1 in his Appendix. See Appx. to Br. of Appellee
at Tab 4. This evidence was not requested by either Corrine or David at any time prior
to the submission of their briefs. CR 149–150. In a letter dated February 6, 2015, the
Court notified the parties that it believed the record to be complete and advised that
“the need for supplementation or amendment shall not constitute reasonable grounds
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for seeking an extension of time to file your brief unless filed within 30 days from the
date your brief is originally due. Thus . . . Appellee will have 30 days after
Appellant’s brief has been filed to seek any necessary supplementation.” David has
waived any consideration of Plaintiff’s Demonstrative 1 on appeal and the Court
should not consider it in performing its legal and factual sufficiency reviews.
IV. David fails to identify legally and factually sufficient evidence in the
record supporting an informal fiduciary duty as the evidence identified
does no more than buttress his subjective feelings of trust and confidence
David takes stock in Corrine’s acknowledgment at trial that she knew David
was trusting her to accurately provide information about his father’s condition. This
does not bear on whether such trust was justified which is exactly why the inquiry
into the actualities of the parties’ relationship is crucial to the determination of
whether an informal fiduciary duty existed. What is starkly telling in David’s brief
is the absence of reference to any portion of the record demonstrating that Corrine
ever committed to acting in David’s best interest. Nor has David identified any
evidence in the record that would support even a reasonable inference that the parties’
relationship had been repaired so as to make any trust David placed in Corrine
justifiable. That is because there is no such evidence. David spends pages 26-28 of
his brief detailing evidence relevant only to the breach of a fiduciary duty, if such
existed, which is not a point that Corrine has raised in this appeal. While David insists
that he trusted Corrine and attempts to identify evidence in support thereof, the
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evidence in the record is legally and factually insufficient, given the actualities of the
relationship between David and Corrine, to show that David’s trust and confidence
was justifiable.
Curiously, David claims that Corrine waived any legal or factual sufficiency
challenges to Question No. 5 and that such challenges are irrelevant because the so-
called “factors” are not required to show an informal fiduciary duty; but at the same
time, David relies heavily on one or more of those “factors” in support of the verdict.
David claims that “Corrine Shearer knew that David could not come down to stay
with John Shearer at the Houston VA” and then details evidence in the record
pertaining to medical issues and family obligations that burdened David. See Br. of
Appellee at pp. 22–23; 6RR: 13 (David’s counsel argued at post-trial hearing that “a
fiduciary relationship may arise either as a result of dominance on the part of one or
weakness and the dependence on the part of the other [sic].”). However, even viewing
this evidence in the light most favorable to David and in considering all of the
evidence, it does not justify his placing trust and confidence in Corrine when the
actualities reflect that the relationship was a shambles, he knew that he was the one
with authority to make medical decisions on behalf of his father, and could have and
chose not to exercise that authority directly with doctors at the hospital whom David
admits must have been of the opinion that Corrine had such authority.
David goes on to state that “the factors raised in Corrine Shearer’s legal and
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factual sufficiency points are not pre-requisites to the creation and/or existence of an
informal fiduciary relationship. Accordingly, insufficient evidence for any or all of
them does not render the jury verdict improper.” This is simply not so when evidence
bearing on the so-called factors consumed much, if not all, the evidence at trial
relevant to the existence of an informal fiduciary duty and are encompassed in the
broader statement of the law that concerns the actualities of the relationship. See Br.
of Appellee at p. 31 (emphasis added).
V. David gravely misstates the holding in the Priebe case and IIED claim did
not constitute a “gap-filler” under these facts
Corrine will not belabor the issues relating to David’s IIED claim which have
already been amply presented in her Brief. Nevertheless, Corrine would like to
address David’s clear misstatement of the holding in Priebe and urge that it should
not be construed as David insists. Priebe's father and A'Hearn's husband, Richard
Priebe, was diagnosed with terminal cancer. Priebe testified that during her father's
illness, she tried to visit him as frequently as her work schedule would allow because
she wanted to spend as much time with him as she could before he passed away. On
at least one occasion, Priebe tried to discuss funeral arrangements and other
end-of-life matters with her stepmother, but A'Hearn refused to discuss the matter.
Priebe v. A’Hearn, 2011 WL 1330808 at *1 (Tex. App. – Houston [1 Dist] 2011, no
pet.). Mr. Priebe died on February 25, 2003. A'Hearn had Mr. Priebe's body cremated,
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and his ashes were interred. No funeral was held and no obituary was published.
Priebe was not informed of her father's cremation and was not included in any
discussion about how his remains would be handled. Id. Priebe filed suit alleging
claims against A'Hearn for defamation, conversion, and intentional infliction of
emotional distress. The trial court later transferred Priebe's conversion claim to the
probate court. At trial, the court granted A'Hearn's motion for directed verdict on the
defamation claim on limitations grounds. The jury found A'Hearn liable for
intentional infliction of emotional distress, and awarded Priebe $90,000 in damages
for mental anguish, as well as $1 in exemplary damages. A'Hearn filed a motion for
judgment notwithstanding the verdict, which the trial court granted. Id. at *2
(emphasis added).
Priebe argued that the trial court improperly granted A'Hearn's motion for
judgment notwithstanding the verdict because there was substantial and compelling
evidence supporting her claim of intentional infliction of emotional distress. Priebe
alleged facts in support of her intentional infliction of emotional distress claim that
included, among other things, that A'Hearn excluded her from discussions concerning
the treatment of her father's remains. Id. at * 5–6. The court concluded that “A'Hearn's
. . . choice to exclude Priebe from any decisions concerning Mr. Priebe's remains and
memorial service, were insensitive when viewed from Priebe's perspective. However,
intra-familial discord of this variety is not regulated by tort law, and the tort of
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intentional infliction of emotional distress does not permit recovery for inconsiderate
and unkind behavior.” Id. at * 7. The court then cited Tex. Health & Safety Code
§711.002 in support of A’Hearne’s right to control the disposition of Mr. Priebe’s
remains. Ultimately, the court concluded that “the evidence presented in this case did
not support the jury's finding that A'Hearn's behavior was extreme and outrageous,
and we hold that her conduct did not amount to an actionable intentional infliction of
emotional distress claim.” The Court did NOT hold, as David claims, that “there is
no cause of action available but intentional infliction of emotional distress for the
wrongful treatment of human remains.” See Br. of Appellee at p. 40.
What further distinguishes Priebe from the case at bar is that Priebe only pled
three causes of action, including conversion (which was transferred to the probate
court), and only the IIED cause of action found its way into the jury charge. Here, the
invasion of privacy cause of action was in the Court’s Charge and mirrored the
theories already being sought for interference with a right allegedly belonging to
David under Tex. Health & Safety Code §166.039(b). David attempted to advance
the invasion of privacy theory on “the decisions whether to withdraw or maintain life
support for his father, John Shearer, and whether to order a DNR . . .” at trial under
§166.039(b) but, on appeal, shies away from its availability as a viable theory for
interference with David’s ostensible “right to control the disposition of human
remains.” See CR 63–66.
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CONCLUSION AND PRAYER
Corrine Shearer has shown that the evidence at trial was legally and factually
insufficient to show that a fiduciary duty existed between Corrine and David Shearer.
Corrine Shearer has shown that David Shearer had an alternative remedy besides an
IIED cause of action to recover mental anguish damages and that alternative remedy
was pled and presented to the jury. Corrine Shearer would ask that the Court reverse
and render judgment on both grounds, that David Shearer take nothing, and that
Corrine Shearer be awarded her costs. Alternatively, the evidence at trial was
factually insufficient to show that a fiduciary duty existed between Corrine Shearer
and David Shearer. Corrine Shearer would ask that the Court reverse and remand the
case to the trial court for a new trial on David Shearer’s claim for breach of fiduciary
duty.
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CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e)
1. This brief complies with the type-volume limitation of Texas Rule of
Appellate Procedure 9.4(e)(i)(2)(B) because, according to the Microsoft
Word 2010 word count function, it contains a total of 6,194 words on
pages 1-10 of the Appellants Reply Brief and on pages 7-22 of the
Appellants Brief, excluding the parts of the brief exempted by Texas Rule
of Appellate Procedure 9.4(e)(i)(1).
2. This brief complies with the typeface requirements of Texas Rule of
Appellate Procedure 9.4(e) because it has been prepared in proportionally
spaced typeface using Microsoft Word 2010 software in Times New
Roman 14-point font in text and Times New Roman 12-point in footnotes.
/s/ J. Chad Parker
J. Chad Parker
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Reply Brief of Appellant Corrine
Augustine Nichols Hill Shearer was served by electronic service and/or email to the
following counsel of records on April 24, 2015.
Carson Runge
SLOAN, BAGLEY, HATCHER & PERRY
101 East Whaley Street
Longview, Texas 75601
Via Email
/s/ J. Chad Parker
J. Chad Parker
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