Karla Merrick v. Bonnie Helter, Individually and as Independent of the Last Will and Testament of J.C. Cole ( 2015 )

ACCEPTED
03-14-00708-CV
4249886
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/23/2015 3:08:10 PM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-14-00708-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE THIRDAUSTIN, TEXAS
JUDICIAL DISTRICT 2/23/2015 3:08:10 PM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
KARLA MERRICK,
Appellant
v.
BONNIE HELTER, Individually and as Independent Executor of
the Last Will and Testament of J.C. Cole, Deceased
Appellee.
_________________________________________________________
APPELLANT KARLA MERRICK’S REPLY BRIEF
_________________________________________________________
From the Probate Court #1, Travis County, Texas
PAUL M. BOHANNON
Bohannon Legal PLLC
8300 FM 1960 West, Ste. 450
Houston, Texas 77070
281.798.7466
281.254.7914 Fax
Paul@BohannonLegal.com
SBN 02563500
1
IDENTITIES OF PARTIES AND COUNSEL
The following is a list of all parties to the trial court’s Final
Judgment in the underlying proceeding, together with the names and
addresses of all counsel in accordance with Texas Rule of Appellate
Procedure 38.1(a):
Appellant/Plaintiff
Karla Merrick
Counsel for Appellant/Plaintiff
Paul M. Bohannon
Bohannon Legal PLLC 8300
FM 1960 West, Ste. 450
Houston, TX 77070
Appellee/Defendants
Bonnie Helter, Individually and as Independent Executor of the Last
Will and Testament of J.C. Cole, Deceased
Counsel for Appellee/Defendant
Alex R. Tandy, Esq.
Scott Phillips
Law Office of Alex R. Tandy, PC.
777 Lonesome Dove Trail, Ste. A
Hurst, TX 76054-6018
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TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ................................ 2
TABLE OF CONTENTS ................................................................. 3
ABBREVIATIONS .......................................................................... 4
REPLY ARGUMENT AND AUTHORITIES ................................. 6
Reply 1. Appellee’s Argument Regarding the Texas Estate Code
Converts the Two-Fold Exception into a Singular Exception to the
Testator’s Rights ............................................................................... 6
Reply 2. Coercing One’s Child to Silence is a Further Step Against
Public Policy ..................................................................................... 9
CONCLUSION ................................................................................ 9
PRAYER ........................................................................................ 10
INDEX OF AUTHORITIES .......................................................... 12
CERTIFICATE OF COMPLIANCE.............................................. 13
CERTIFICATE OF SERVICE ....................................................... 13
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ABBREVIATIONS
Parties:
“Merrick” refers to Karla Merrick, who was the sole child and
sole natural bounty of the Deceased.
“Helter” refers to Bonnie Helter, Individually and as
Independent Executor of the Last Will and Testament of J.C. Cole. She
was the Deceased’s half-sister.
“Deceased” refers to Karla Merrick’s father, the testator in this
case.
Documents:
“Will” refers to the Deceased’s Last Will and Testament,
dated November 23, 2013, executed on his death bed. (CR: 5)
Record References:
Citations to the Clerk’s Record are in the form of .. CR [pg.
no.]
Citations to the Reporter’s Record are in the form of.. RR [pg.
no.]
Hyperlinks
All references or citations underlined are hyperlinked to the
documents in either Lexis or the internet. Depending upon your
4
software, the Lexis links may or may not automatically open. Where a
citation is followed by “Appendix”, that reference is to a copy of the
document in the Appendix. These references are not hyperlinked
internally.
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REPLY ARGUMENT AND AUTHORITIES
Appellee’s Brief, in summary, seeks comfort in one very
general proposition:
1. Only the Texas legislature can establish public policy for
the State, implemented by specific statute.
2. The Texas Estate Code gives unfettered ability to a testator
to bequeath its property as the testator sees fit.
Appellant Merrick respectfully submits that both propositions are
inappropriately generic, resulting in significant changes in Texas public
policy of the nature that citizens and the legislature would disdain.
Reply 1. Appellee’s Argument Regarding the Texas Estate Code
Converts the Two-Fold Exception into a Singular Exception to the
Testator’s Rights
The law in Texas, since at least 1908 in Perry v. Rogers, 52
Tex. Civ. App. 594, 597, 114 S.W. 897, 899 (no writ), has been that a
testator in Texas – even a rapist – can do what it wants with its will –
subject, however, to two fundamental limitations: A testator cannot, by
use of the will, implement or solicit a violation of law. For example, if a
testator imposed a gifting condition that a beneficiary were to received a
gift of a million dollars if the beneficiary killed someone, that clause
would be unenforceable. I submit that Appellees do not contest this
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exception. Hence, Appellees tacitly if not expressly accept Perry v.
Rogers.
Appellee’s statutory argument regarding the public policy
exception cleverly disguises a change in Texas law that has stood for
over 100 years.
Appellee argues that public policy is established by the
legislature. We agree with that as a first step. Appellee, however, seeks
to lure the Court into abolishing the public policy exception by arguing
that it is the legislature who must change the statute to protect
inheritance rights of children sexually abused by their fathers. Stated
another way, Appellees suggest that Appellant Merrick should become a
galvanizing icon to facilitate the legislature’s attention to the situation –
thereby allowing Helter to tuck the $15 million inheritance into her
purse and ignore the sins that have happened.
This is wrong – legally wrong. If the only way public policy
applies is by specific statutory provision, then there is only one
exception: a violation of statute. Hence, public policy is no longer an
exception to the testator’s gifting privileges.
Appellees, hailing from Nebraska, chortle at the multitude of
Texas statutes declaring a public policy against sexual crimes, including
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indecency with a child. Those statutes have no relevance to this case,
they suggest. It makes no difference that Texas has declared, through
many statutes, that sexual indecency with a child – for that matter, even
rape – is against the law. Absent a very specific factual statute, parents
can have their way with their children in Texas.
Appellees’ argument on page 5 of their brief argues that the
Tex. Est. Code Ann. § 251.002 is absolute: a testator can gift as it sees
fit. Period. Hence, Appellees argue that the Texas Legislature has
sanctioned solicitation and commitment of crimes through the use of
wills. If the statute is absolute (contrary to earlier cited cases), then the
legislature has declared that you can include a bequest conditioned on
killing someone.
Appellees continue to point to In re Burt’s Estate, 169 A.2d 32(Vt. 1961) for the proposition that a thoroughly bad man may make a
valid will. Yet In re Burt’s Estate does not state that one can violate the
law or contravene public policy. In fact, the case focused on whether
being mean or of violent character restricted his gifting ability. The
court did not consider whether the will exclusion implemented a
violation of law or of public policy.
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Reply 2. Coercing One’s Child to Silence is a Further Step Against
Public Policy
Appellees adroitly avoid discussion of the coercion argument.
Texas provides no statute of limitations for indecency with a child. Tex.
Code Crim. Proc. art. 12.01. Deceased’s fraudulent and coercive
conduct against his child, seeking to punish her for confrontation, is
repulsive. More to the point, such conduct could be a tool to avoid
criminal prosecution even at the latter point in his life. Appellees decry
Merrick’s failure to withstand the drunken violence, gun threats, and
beatings to come forward against her father. These are typical
arguments against a victim that has held her outcry inside her heart.
They also are factual arguments advanced to this Court by Appellees in
defending an Order of Dismissal.
Allowing this type of coercion enables sexual, incestuous
predators to hide from prosecution. And that would be against public
policy.
CONCLUSION
The essential question before this Court is whether it is against
public policy to perpetrate incestuous indecency with a child. If so, the
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Order of Dismissal was improvidently granted. The case should
proceed to trial.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Petitioner Karla
Merrick respectfully prays that this Honorable Court:
A. Reverse the decision of the Trial Court;
B. Remand the case to the Trial Court for further proceedings
consistent with its opinion;
C. Hold that as a matter of law, it is the public policy of the
State of Texas that incestuous indecency with a child is
contrary to the public policy of the State of Texas;
D. Hold that as a matter of law, it is against the public policy
of the State of Texas for a parent to use its last will and
testament as a coercive tool to silence its child about acts of
indecency with the child.
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E. Costs and such other and further relief as this Honorable
Court may deem just and proper.
PAUL M. BOHANNON
Bohannon Legal PLLC
8300 FM 1960 West
Ste. 450
Houston, Texas 77070
281.798.7466
281.254.7914 Fax
paul@BohannonLegal.com
SBN 02563500
11
INDEX OF AUTHORITIES
Cases
In re Burt’s Estate, 169 A.2d 32 (Vt. 1961) ............................................. 8
Perry v. Rogers, 52 Tex. Civ. App. 594, 597, 114 S.W. 897, 899 (no writ)
.......................................................................................................... 6, 7
Statutes
Tex. Code Crim. Proc. art. 12.01 ............................................................. 9
Tex. Est. Code Ann. § 251.002................................................................ 8
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CERTIFICATE OF COMPLIANCE
COMES NOW the Appellant Karla Merrick and hereby
certifies that this document contains 914 words.
CERTIFICATE OF SERVICE
THIS WILL CERTIFY that undersigned counsel served the
foregoing document on Defendants Bonnie Helter Individually and as
Executor of the Estate of J.C. Cole, by delivery to opposing counsel of
record, Alex R. Tandy, Esq., by EServe this February 23, 2015.
PAUL M. BOHANNON
Bohannon Legal PLLC 8300 FM 1960
West, Ste. 450 Houston, Texas 77070
281.798.7466
281.254.7914 Fax
paul@BohannonLegal.com
SBN 02563500
13