DocketNumber： 12-14-00302-CV
Filed Date： 4/8/2015
Status： Precedential
Modified Date： 4/17/2021
ACCEPTED 12-14-00302-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 4/8/2015 2:16:51 PM CATHY LUSK CLERK NO. 12‐14‐00302‐CV FILED IN 12th COURT OF APPEALS TYLER, TEXAS IN THE TWELFTH COURT OF APPEALS 4/8/2015 2:16:51 PM TYLER, TEXAS CATHY S. LUSK Clerk CORRINE AUGUSTINE NICHOLS HILL SHEARER 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 BRIEF FOR APPELLEE Carson R. Runge Attorney for David Shearer Sloan, Bagley, Hatcher & Perry Law Firm 101 East Whaley St., Longview, TX 75601 Phone: 903‐757.7000 ext.213 Fax: 903‐757‐7574 State Bar Number: 24059262 Oral Argument Requested Identity of Parties and Counsel Appellant/Defendant: Corrine Augustine Nichols Hill Shearer Appellant’s Counsel: J. Chad Parker State Bar No: 15489000 cparker@theparkerfirm.net Forrest F. Mays State Bar No: 24072228 fmays@theparkerfirm.net The Parker Firm, P.C. 3808 Old Jacksonville Rd. Tyler, Texas 75701 (903) 595‐4541 ‐ telephone (903) 595‐2864 ‐ facsimile Appellee/Plaintiff: David Shearer, Individually, and as Independent Administrator of the Estate of John William Shearer, III Appellee’s Counsel: Carson Runge State Bar No. 24059262 crunge@sloanfirm.com Sloan, Bagley, Hatcher & Perry 101 East Whaley Street Longview, Texas 75601 State Bar No. 24059262 Phone: 903‐757‐7000 ext.213 Fax: 903‐757‐7574 i Table of Contents Identity of Parties and Counsel ..............................................................................i Table of Contents ................................................................................................... ii Table of Authorities .............................................................................................. iv Statement of the case .............................................................................................. x Issues Presented ...................................................................................................... x Standard of Review ............................................................................................... xi Statement of Facts ................................................................................................... 1 Summary of the Argument .................................................................................. 11 Argument ............................................................................................................... 15 I. Corrine Shearer Failed to Preserve Error by Failing to Request the Inclusion of, and Failing to Object to the Omission of, the Additional Three Factors that Form the Foundation of Her Legal and Factual Sufficiency Challenges Regarding the Existence of an Informal Fiduciary Duty. ........................................................................................... 15 II. There Is Legally and Factually Sufficient Evidence Supporting the Jury’s Unanimous Finding of the Existence of An Informal Fiduciary Relationship Under the Court’s Charge .................................................. 21 III. Corrine Shearer’s Legal and Factual Sufficiency Points of Error are Irrelevant Because the Factors Raised by Corrine Shearer in Her Appeal are Not Required for the Creation of, or the Existence of, an Informal Fiduciary Duty. ........................................................................... 29 ii IV. Alternatively, if This Court Holds that these Three Factors are Required for the Creation of an Informal Fiduciary Duty, There is Sufficient Evidence to Support the Trial Court’s Judgment. ............... 34 V. Intentional Infliction of Emotional Distress Represents the Only Available Cause of Action for David to Recover for Corrine Shearer’s Wrongful Disposition of John Shearer’s Ashes. ..................................... 37 Prayer ...................................................................................................................... 41 Certificate of Compliance .................................................................................... 42 Certificate of Service ............................................................................................. 43 iii Table of Authorities Texas Supreme Court: Allen v. American Natʹl Ins. Co.380 S.W.2d 604
(Tex. 2014) ......................................................................... 15 Burbage v. Burbage447 S.W.3d 249
(Tex. 2014) ................................................................... 15, 20 Cain v. Bain709 S.W.2d 175
(Tex. 1986) ......................................................................... xi Crim Truck & Tractor Co. v. Navistar Intʹl Transp. Corp.823 S.W.2d 591
(Tex. 1992) ......................................................................... xi Evanston Ins. Co. v. Legacy of Life, Inc.370 S.W.3d 377
(Tex. 2012) ......................................................................... 38 Fitz‐Gerald v. Hul237 S.W.2d 256
(Tex. 1951) ......................................................................... 29 Hoffmann‐La Roche, Inc. v. Zeltwanger144 S.W.3d 438
(Tex. 2004) ................................................................... 38, 41 International Bank, N.A. v. Morales36 S.W.2d 622
(Tex. 1987) ........................................................................... xi Kinzbach Tool Co. v. Corbett‐Wallace Corp. 160 S.W.2d509 (Tex. 1942) .......................................................................... 30 Larson v. Cook Consultants, Inc.690 S.W.2d 567
(Tex. 1985) ......................................................................... 15 iv Lofton v. Texas Brine Corp.720 S.W.2d 804
(Tex. 1986) ......................................................................... xi Merrell Dow Pharm., Inc. v. Havner953 S.W.2d 706
(Tex. 1997) ......................................................................... xi Meyer v. Cathey167 S.W.3d 327
(Tex. 2005) ................................................................... 31‐32 Mills v. Gray210 S.W.2d 985
(Tex. 1948) ......................................................................... 30 Osterberg v. Peca,12 S.W.3d 31
(Tex. 2000) ....................................................................... 15, 20 Salinas v. Salinas365 S.W.3d 318
(Tex. 2012) .......................................................................... 15 Schlumberger Tech. Corp. v. Swanson959 S.W.2d 171
(Tex. 1997) ......................................................................... 32 Sherman v. First Natʹl Bank760 S.W.2d 240
(Tex. 1988) ........................................................................ xi Standard Fruit and Vegetable Co. v. Johnson985 S.W.2d 62
(Tex. 1998) ........................................................................... 38 Tex. Bank & Trust Co.595 S.W.2d 502
(Tex. 1980) ................................................................... 31, 33 Thigpen v. Locke363 S.W.2d 247
(Tex. 1962) ...................................................... xii, 30, 32, 33 v Valenzuela v. Aquino853 S.W.2d 512
(Tex. 1993) .......................................................................... 39 Wal‐Mart Stores, Inc. v. Sturges,52 S.W.3d 711
(Tex. 2001) ............................................................................ 16 Texas Courts of Appeal: Beaumont v. Basham205 S.W.3d 608
(Tex. App.—Waco 2006) ................................................ 16 Crounse v. State Farm Mut. Auto. Ins. Co.336 S.W.3d 717
(Tex. App.—Houston [1st Dist.] 2010) ........................ 16 Dorton v. Chase262 S.W.3d 396
(Tex. App.—Waco 2008) ................................................. 16 Eagle Oil & Gas Co. v. TRO‐X, L.P.416 S.W.3d 137
(Tex. App.—Eastland 2013) ........................................... 15 Editorial Caballero, S.A. de C.V. v. Playboy Enters., Inc.359 S.W.3d 318
(Tex. App.—Corpus Christi 2012) ................................ 15 Garza v. Cantu431 S.W.3d 96
(Tex. App.—Houston [14th Dist.] 2013) ...................... 15 Harstan, Ltd. v. Kim,441 S.W.3d 791
(Tex. App.—El Paso 2014) ........................................ 16, 20 Hatton v. Turner622 S.W.2d 450
(Tex. Civ. App.—Tyler 1981) ......................................... 33 vi Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc.201 S.W.3d 272
(Tex. App.—Houston [14th Dist.] 2006) ................ 16, 17 Holland v. Lesesne350 S.W.2d 859
(Tex. Civ. App.—San Antonio 1961) ............................ 33 Hunter v. PriceKubecka, PLLC339 S.W.3d 795
(Tex. App.—Dallas 2011) ............................................... 16 In re Estate of Bean206 S.W.3d 749
(Tex. App.—Texarkana 2006) ....................................... 16 In the Interest of A.M.385 S.W.3d 74
(Tex. App.—Waco 2012) ................................................... 15 Internacional Realty, Inc. v. 2005 RP West, Ltd.449 S.W.3d 512
(Tex. App.—Houston [1st Dist.] 2014) ......................... 15 Janssen Pharmaceutica, Inc. v. Martinez,296 S.W.3d 634
(Tex. App.—El Paso 2009) .............................................. 16 Levine v. Steve Scharn Custom Homes, Inc.448 S.W.3d 637
(Tex. App.—Houston [1st Dist.] 2014) ......................... 15 Lee v. Dykes,312 S.W.3d 191
(Tex. App.—Houston [14th Dist.] 2010) .................................................. 16 Lee v. Hasson286 S.W.3d 1
(Tex. App.—Houston [14th Dist.] 2007) .................... 16, 33 Lundy v. Masson260 S.W.3d 482
(Tex. App.—Houston [14th Dist.] 2008) ....................... 16 vii Meek v. Onstad430 S.W.3d 601
(Tex. App.—Houston [14th Dist.] 2014) ....................... 15 Oliva v. Davila373 S.W.3d 94
(Tex. App.—Dallas 2011) ................................................. 15 Pope v. Darcey667 S.W.2d 270
(Tex. App.—Houston [14th Dist.] 1984) ...................... 32 Priebe v. AʹHearn,2011 Tex. App. LEXIS 2542
, *15 (Tex. App.—Houston [1st Dist.] Apr. 6, 2011)(Mem. op.) ........................................................... 40 Rhey v. Redic,408 S.W.3d 440
(Tex. App.—El Paso 2013) .............................................. 15 Texas First Nat. Bank v. Ng167 S.W.3d 842
(Tex. App.—Houston [14th Dist.] 2005) ................ 17, 20 Trostle v. Trostle77 S.W.3d 908
(Tex. App.—Amarillo 2002) ...................................... 32‐33 Vanderpool v. Vanderpool442 S.W.3d 756
(Tex. App.—Tyler 2014) ................................................ xii Young v. Fawcett376 S.W.3d 209
(Tex. App.—Beaumont 2012) ........................................ 30 Statutes Texas Health & Safety Code § 166.039(b) .................................................................................................. 22 § 711.002 ....................................................................................................... 38 viii Texas Rules of Civil Procedure: 272, 274, 278, 279 ........................................................................................ 15 ix Statement of the Case Corrine Augustine Nichols Hill Shearer appeals the judgment against her from the County Court at Law No. 2, in Gregg County. David Shearer, Appellee, obtained a jury verdict on three causes of action he brought against Corrine Shearer. First, the jury unanimously found that Corrine Shearer breached the informal fiduciary duty that she owed Mr. David Shearer. The jury awarded $35,000 in mental anguish damages. After unanimously finding that Corrine Shearer acted with malice in breaching her fiduciary duty towards Mr. David Shearer, the jury unanimously awarded $10,000 in exemplary damages. Lastly, the jury found that Corrine Shearer intentionally inflicted emotional distress on Mr. David Shearer by wrongfully disposing of David Shearer’s ashes. The jury awarded Mr. David Shearer $1,500 in mental anguish. After various post‐trial motions, the trial court entered judgment on the verdict. Issues Presented 1. When Appellant failed to request the inclusion of, and failed to object to the omission of, certain factors in the jury charge concerning the existence of an informal fiduciary duty, did Appellant waive her ability to assert a legal and factual sufficiency challenge on such factors? 2. Was there legally and factually sufficient evidence that a relationship of trust and confidence existed as charged by the Court? 3. If Appellant preserved error, are the three factors raised by Appellant required to establish the existence of an informal fiduciary duty? x 4. Was there an alternative theory of recovery that David Shearer could have recovered under other than an intentional infliction of emotional distress claim when there is no fair market value of bodily remains thereby precluding a conversion claim for the destruction of his father’s ashes? STANDARD OF REVIEW When conducting a legal sufficiency of the evidence review, an appellate court considers only the evidence and inferences which tend to support the lower court’s findings and disregards all evidence and inferences to the contrary. International Bank, N.A. v. Morales,736 S.W.2d 622
, 624 (Tex. 1987). If the evidence at trial furnishes some reasonable basis for reasonable minds to reach different conclusions on the existence of the vital fact, the evidence amounts to more than a scintilla of evidence, and the no evidence challenge fails. Sherman v. First Natʹl Bank,760 S.W.2d 240
, 242 (Tex. 1988). When the evidence offered to prove a vital fact is more than a mere scintilla, an appellate court must overrule a no evidence point of error. Merrell Dow Pharm., Inc. v. Havner,953 S.W.2d 706
, 711 (Tex.1997). When conducting a factual sufficiency of the evidence review, the reviewing court examines all of the evidence. Lofton v. Texas Brine Corp., 720 xi S.W.2d 804, 805 (Tex. 1986). A verdict can only be set aside when the evidence is so weak that the verdict is clearly wrong and manifestly unjust in light of all of the evidence. Cain v. Bain,709 S.W.2d 175
, 176 (Tex. 1986). In Texas, the existence of an informal fiduciary relationship—also known as a confidential relationship—is a question of fact for the factfinder to answer. Crim Truck & Tractor Co. v. Navistar Intʹl Transp. Corp.,823 S.W.2d 591
, 594 (Tex. 1992); Vanderpool v. Vanderpool,442 S.W.3d 756
, 765 (Tex. App.—Tyler 2014, no pet.) (citing Thigpen v. Locke,363 S.W.2d 247
, 253 (Tex. 1962)). Whether an informal fiduciary relationship was created “is determined from the actualities of the relationship between the persons involved.” Thigpin v. Locke, 363 S.W.2d at 253. xii STATEMENT OF FACTS In 1990, John Shearer married Corrine Augustine Nichols Hill Shearer (Corrine Shearer), Appellant. 4 RR 34. David Shearer, Appellee, is John Shearer’s son from a previous marriage. 4 RR 34. On February 1, 2008, John Shearer and Corrine Shearer legally divorced in Gregg County, Texas. 4 RR 35; Pl’s Ex. 7. They never remarried, and were not common law married after their divorce. 5 RR 35‐43, 48‐50. They continued to live together in the same house after their divorce until John Shearer was hospitalized. 4 RR 35. On November 2, 2009, John Shearer fell ill and went to the Overton Brooks VA Medical Center (“Overton VA”) in Shreveport, Louisiana. 4 RR 43. Corrine Shearer accompanied him to the hospital. 4 RR 43. On the second day of John Shearer’s three (3) day stay at the Overton VA, medical personnel found out that Corrine Shearer was John Shearer’s ex‐wife. 4 RR 39, 44‐46; Pl’s. Ex. 2‐85, 8 RR 91. Corrine was informed by a social worker at the Overton VA that because she was John Shearer’s ex‐wife, she did not have any legal authority to make medical decisions on John Shearer’s 1 behalf. 4RR 46‐47; Pl’s. Ex. 2‐85; 8 RR 91. Corrine Shearer had a document faxed to the Overton VA which expressly provided that she had no authority to make medical decisions on John Shearer’s behalf. 4 RR 47‐48; Pl’s. Ex. 2‐85; 8 RR 91. Moreover, the social worker informed Corrine Shearer that the person that had the legal authority to make those decisions was David Shearer. 4 RR 47‐48; Pl’s. Ex. 2‐85; 8 RR 91. As such, Corrine Shearer gave the social worker David Shearer’s cell phone number. 4 RR 52; Pl’s. Ex. 2‐85; 8 RR 91. The social worker called David Shearer and left him a message informing him he had the authority to make medical decisions on behalf of his father, John Shearer. 4 RR 48; Pl’s. Ex. 2‐85; 4 RR 211. Corrine Shearer and David Shearer also spoke over the phone, and Corrine Shearer confirmed that David Shearer had the right to make medical decisions on John Shearer’s behalf. 4 RR 211. Soon thereafter, John Shearer was transferred to the Houston Michael E. DeBakey VA Medical Center (“Houston VA”). 4 RR 50. 2 Corrine Shearer traveled to the Houston VA where John Shearer was transferred. 4 RR 83. Knowing that if the Houston VA found out that she was John Shearer’s ex‐wife she would have no authority to make medical decisions on behalf of John Shearer, Corrine Shearer represented to the doctors, medical staff and hospitality personnel at the Houston VA that she was John’s wife. 4 RR 75, 93, 95, 98; Pl’s. Ex. 3‐39; 8 RR 683. David Shearer was unaware that Corrine Shearer was representing herself to doctors and medical staff as his father’s wife. 4 RR 175. Just prior to John Shearer’s illness, David Shearer’s wife was diagnosed with a brain tumor. 4 RR 56‐58, 155. A week prior to John Shearer’s illness, David Shearer was involved in a recreational shooting accident that resulted in part of his index finger being amputated. 4 RR 55‐ 56, 58, 153‐155. As a result of his own injury, David missed a week of work at Aerosmith Aviation. 4 RR 56, 155. David Shearer was paid hourly, and lost a week’s pay. 4 RR 155. Thus, while John Shearer was at the Houston VA, David Shearer was not able to stay in Houston, or visit regularly, because he was working to support his wife and three minor children, ages 3 three, seven, and twelve. 4 RR 56‐57, 156. As such, David relied on Corrine Shearer to relay the information she obtained from the doctors to him so that he could make decisions concerning his father. 4 RR 59, 67‐68, 156‐57, 195, 198. David called Corrine Shearer almost on a daily basis, sometimes multiple times a day, to get updates on his father’s condition. 4 RR 158; Pl’s Ex. 6; Pl’s. Demonstrative Ex. 1; 8 RR 588 – 599 and 8 RR 601 ‐ 609. David’s cell phone number was 903‐261‐2471, Corrine’s cell phone number was 903‐452‐2956. 4 RR 52; Pl’s Ex. 6. David and Corrine Shearer spoke over 60 times during John Shearer’s 33 day stay at the Houston VA. 4 RR 53‐56; Pl’s Ex. 6; Pl’s. Demonstrative Ex. 1; 8 RR 590 – 599 and 8 RR 601 ‐ 609. Corrine Shearer also called David Shearer, initiating 19, nearly 1/3 of the phone calls. 4 RR 174; Pl’s Ex. 6; Pl’s. Demonstrative Ex. 1; 8 RR 590 – 593, 8 RR 596, 8 RR 604 – 605 and 8 RR 608 ‐ 609. David and Corrine Shearer spoke extensively on one topic, and one topic only: John Shearer’s medical condition. 4 RR 55. Corrine Shearer provided David with updates concerning John Shearer’s need for surgery, updates on John Shearer while 4 he was in surgery, and the updates post‐surgery, in addition to relaying any other information Corrine Shearer received from John Shearer’s physicians. 4 RR 96‐97, 174. David Shearer, however, did not know that Corrine Shearer was representing herself to be John Shearer’s wife and making medical decisions on John Shearer’s behalf during his stay at the Houston VA. 4 RR 175‐76. David Shearer went to the Houston VA in late November to visit with his father, met with physicians and to talk with Corrine Shearer. 4 RR 60‐63, 65‐66, 158, 160‐161. David Shearer discussed John Shearer’s future medical care with the doctors, including the possibility of ordering a do‐ not‐resuscitate (DNR). 4 RR 160‐161. David Shearer and Corrine Shearer also discussed the possibility of ordering a DNR in the future, including that if that situation arose, Corrine Shearer would let David know and he would make the decision to enter a DNR. 4 RR 59‐63, 65‐66, 161‐162, 191‐ 192, 198, 211. David returned home and made arraignments with his employer to be able to leave in the event he needed to make a decision concerning issuing a DNR. 4 RR 165. 5 After David left Houston, Corrine Shearer repeatedly told David that his father’s health was either improving or no worse. 4 RR 186‐187. She even stated that John Shearer had made a “miraculous recovery.” 4 RR 65‐ 66, 90, 162‐163. David continued to speak to Corrine Shearer almost every day to check on his father’s health. 4 RR 53‐56, 67; Pl’s Ex. 6; Pl’s. Demonstrative Ex. 1; 8 RR 602 ‐ 609. Corrine Shearer repeatedly told David during these conversations that there was not much change in John Shearer’s condition. 4 RR 186‐87. Sometime before 6:00p.m., on December 7, a physician explained to Corrine Shearer that John Shearer would likely need lifelong hemodialysis, may need ventilator support, and that it was now time to discuss “end of life issues” and the possibility of withdrawing life sustaining care. 4 RR 68‐ 70; Pl’s. Ex. 3‐39; 8 RR 683. Corrine Shearer represented to the physician that she needed to call family. 4 RR 70‐71; Pl’s. Ex. 3‐39; 8 RR 683. This conversation occurred at or before 6:05 p.m. on December 7, 2009. 4 RR 70; Pl’s. Ex. 3‐39; 8 RR 683. Just over an hour later, David Shearer called Corrine Shearer and the two talked for over eleven (11) minutes. 4 RR 71‐ 6 73, 163; Pl’s Ex. 6; Pl’s Demonstrative 1; 8 RR 608. At no point did Corrine Shearer tell David about the conversation she had with the physician regarding long term care, and the possibility of withdrawing or deescalating John Shearer’s medical care. 4 RR 72‐73, 163‐64. The next day, December 8, 2009, around 12:30 p.m., Corrine Shearer informed John Shearer’s doctors that she wanted care withdrawn at this time. Pl’s. Ex. 3‐16; 8 RR 772; 4 RR 73‐76, 104, 116. The doctors obeyed Corrine Shearer’s orders and withdrew all care from John Shearer that afternoon, including: (1) a ventilator, (2) all life sustaining medications, and (3) all nutritional support. Pl’s Ex. 3‐16; 8 RR 772. All care was withdrawn from John Shearer by 3:48 p.m. on December 8, 2009. Pl’s Ex. 3‐18; 8 RR 772. Pursuant to his usual routine, David Shearer called Corrine Shearer around 6:00 p.m. on December 8, 2009 and the two spoke for over six (6) minutes. Pl’s Ex. 6; Pl’s. Demonstrative Ex. 1; 8 RR 609; 4 RR 77‐79, 164‐165. During that conversation, Corrine Shearer failed to mention to David Shearer that she ordered all life sustaining machines, life sustaining medications, and all nutritional support be withdrawn from John Shearer 7 just hours before and that she had ordered the DNR. 4 RR 76‐79, 82, 127, 164‐165. As a result, John Shearer died alone, without the comfort of his son, at 4:00 a.m. on December 9, 2009—approximately 16 hours after Corrine Shearer had ordered the DNR and almost ten (10) hours after Corrine Shearer failed to disclose to David what she had done. Pl’s Ex. 3— 8; 8 RR 679; 4 RR 78‐79, 82, 127, 164. David Shearer never had an opportunity to say goodbye to his father. 4 RR 86, 165‐166. Remarkably, Corrine Shearer thinks David should feel guilty for not being able to say goodbye to John before he died. 4 RR 86. Yet, she admits that David was entitled to every piece of information that she could have told David. 4 RR 132. David Shearer was surprised to hear his father had passed away because Corrine Shearer had told him that his father’s health was improving. 4 RR 186‐187. Corrine Shearer never told David that she ordered a DNR on John Shearer, nor did she ever inform David that she had ordered all life sustaining machines, medications and nutrients be withdrawn from John Shearer. 4 RR 83‐84, 165. David did not find out that 8 Corrine Shearer had ordered all life sustaining care be withdrawn from his father and ordered the DNR until he requested a copy of John Shearer’s medical records. 4 RR 83‐84, 165. The day John Shearer died, Corrine Shearer, under no authority, instructed the hospital to deliver John Shearer’s body to Cremate Texas, Inc. so his body could be cremated. 4 RR 83, 211. Pursuant to Corrine Shearer’s orders John Shearer’s body was cremated. 4 RR 83. After learning that his father’s body was cremated David Shearer informed Corrine Shearer of his intent to take his father’s ashes. 4 RR 84‐85. Despite telling Corrine Shearer that he wanted his father’s ashes, Corrine Shearer disposed of John Shearer’s ashes without the knowledge or consent of David. 4 RR 84‐85, 204. David learned that Corrine Shearer had disposed of his father’s ashes from his aunt. 4 RR 204. David Shearer as independent administrator of his father’s estate brought claims against Corrine Shearer for invasion of John Shearer’s privacy in private affairs, specifically concerning the decisions regarding John Shearer’s medical care. David Shearer, in his individual capacity, 9 brought additional causes of action against Corrine Shearer. David Shearer sued Corrine Shearer for invasion of privacy, namely for making decisions regarding his father’s medical care that were David’s to make, for Corrine Shearer’s breach of the relationship of trust and confidence between the two of them (informal fiduciary duty), and conversion of John Shearer’s ashes. Additionally, David brought an action for intentional infliction of emotional distress for disposing of John Shearer’s Ashes without David Shearer’s consent or knowledge and disposing of them in manner directly contrary to David Shearer and John Shearer’s wishes. The case was tried by a jury. At the close of evidence Corrine Shearer moved for, and was awarded, a directed verdict on David’s conversion claim. 5 RR 15‐16. All other claims were submitted to the jury. The jury unanimously found that an informal fiduciary relationship existed between David Shearer and Corrine Shearer and the jury unanimously found that Corrine Shearer breached her informal fiduciary duty to David. Accordingly, the jury awarded David Shearer $35,000.00 for mental anguish. Further, the jury unanimously found that Corrine Shearer acted 10 with malice in breaching her informal fiduciary duty and unanimously awarded $10,000.00 in exemplary damages. Additionally, the jury found that Corrine Shearer intentionally inflicted emotional distress on David through her taking and disposing of John Shearer’s ashes. The jury awarded $1,500 in damages. The trial court denied Corrine Shearer’s Motion to Disregard Certain Jury Findings and her J.N.O.V. Corrine Shearer then filed a Motion to Set Aside Judgement and for New Trial. The trial court denied her motions. SUMMARY OF THE ARGUMENT The jury unanimously found that an informal fiduciary relationship existed between Mr. David Shearer, Appellee, and Corrine Shearer, Appellant, and the trial court entered judgement on that finding. The jury also unanimously found that Ms. Corrine Shearer maliciously breached her informal fiduciary duty. Importantly, Appellant does not raise any point on appeal concerning the jury’s unanimous finding that Ms. Corrine Shearer maliciously breached her fiduciary duty. Instead, Appellant contends that there was insufficient evidence of the existence of an 11 informal fiduciary duty between herself and David Shearer. Yet, Corrine Shearer failed to preserve error for her no evidence grounds. Corrine Shearer appeals the jury’s unanimous finding of the existence an informal fiduciary relationship on the grounds that there is legally and factually insufficient to establish that: (1) a relationship of trust existed prior to and apart from the basis of David’s cause of action; (2) David “was accustomed to receiving judgment or advice from Corrine,” and (3) Corrine Shearer was not in a position of “dominance on one side” coupled with “David’s weakness,” on the other. Appellant’s Br. 7. The trial court’s jury charge, however, did not define a fiduciary duty as requiring any of those three factors. Corrine Shearer did not request that the trial court define, or otherwise charge the jury, that the existence of an informal fiduciary duty requires evidence of all (or any) of these three factors. Moreover, Corrine Shearer did not object to the omission of any of these factors from the trial court’s charge. In fact, the language used by the court in instructing the jury on an informal fiduciary relationship is substantially the same as the language Corrine Shearer requested. Def’s. Proposed Charge, 5; Jury 12 Charge, 7. As a result, Corrine Shearer failed to preserve error on these grounds. Accordingly, any legal or factual sufficiency review should be based on the Court’s charge. Plaintiff, however, does not read Corrine Shearer’s Appellant brief as alleging that there is legally or factually insufficient evidence of the existence of an informal fiduciary duty under the trial court’s charge. Because Corrine Shearer failed to preserve error, and because Corrine Shearer does not argue that there is legally or factually insufficient evidence of the existence of an informal fiduciary relationship under the trial court’s charge, there is no need for this Court to conduct a legal and/or factual sufficiency review of the jury’s unanimous finding. However, if this Court does finds that Corrine Shearer properly raised her factual and legal sufficiency points under the charge provided to the jury, there is legal and factually sufficient evidence supporting the jury’s unanimous finding. Alternatively, if this court finds Corrine Shearer preserved error, her legal and factual sufficiency points of error are irrelevant as the three factors relied upon by Corrine Shearer are not required for the creation 13 and/or existence of an informal fiduciary relationship. As the three factors are not required, insufficient evidence for any or all of them do not render the jury verdict improper. Next, if this Court holds that the three factors are required for the creation and/or existence of an informal fiduciary duty, the record establishes that the jury had sufficient evidence to find an informal fiduciary relationship existed prior to and apart from the basis of David’s cause of action, that David was accustomed to receiving judgment or advice, and that Corrine Shearer was in a position of power over David. Finally, the trial court correctly allowed David Shearer to recover on his claim for intentional infliction of emotional distress because no other tort remedy for mental anguish pertaining to the disposal of John Shearer’s ashes was available. 14 ARGUMENT I. Corrine Shearer Failed to Preserve Error by Failing to Request the Inclusion of, and Failing to Object to the Omission of, the Additional Three Factors that Form the Foundation of Her Legal and Factual Sufficiency Challenges Regarding the Existence of an Informal Fiduciary Duty. An appellate court reviews the evidence in light of the charge given to the jury. Burbage v. Burbage,447 S.W.3d 249
, 260 (Tex. 2014). That is, the trial court’s charge sets the standard for legal and factual sufficiency review.Id.
“[I]t is the courtʹs charge, not some other unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to the charge.ʺ TEX. R. CIV. P. 272, 274, 278, 279; Osterberg v. Peca,12 S.W.3d 31
, 55 (Tex. 2000).1 1 See also Burbage v. Burbage, 447 S.W.3d at 260; Salinas v. Salinas,365 S.W.3d 318
, 321 (Tex. 2012); Larson v. Cook Consultants, Inc.,690 S.W.2d 567
, 568 (Tex. 1985); Allen v. American Natʹl Ins. Co.,380 S.W.2d 604
, 609 (Tex. 1964); Internacional Realty, Inc. v. 2005 RP West, Ltd.,449 S.W.3d 512
, 532 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); Levine v. Steve Scharn Custom Homes, Inc.,448 S.W.3d 637
, 649 (Tex. App.—Houston [1st Dist.] 2014, pet. filed); Meek v. Onstad,430 S.W.3d 601
, 608 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Eagle Oil & Gas Co. v. TRO‐X, L.P.,416 S.W.3d 137
, 148 (Tex. App.— Eastland 2013, pet. granted); Garza v. Cantu,431 S.W.3d 96
, (Tex. App.—Houston [14th Dist.] 2013, pet. denied); Rhey v. Redic,408 S.W.3d 440
, 452 (Tex. App.—El Paso 2013, no pet.); In the Interest of A.M.,385 S.W.3d 74
, 81(Tex. App.—Waco 2012, no pet.); Editorial Caballero, S.A. de C.V. v. Playboy Enters., Inc.,359 S.W.3d 318
, 329 (Tex. App.—Corpus Christi 2012, pet. denied); Oliva v. Davila,373 S.W.3d 94
, 101 (Tex. App.—Dallas 2011, 15 When a party fails to request the inclusion of particular factors in the jury charge and additionally fails to object to the omission of the same factors from the charge, the party cannot then claim on appeal that the judgment should be reversed because there is legally and factually insufficient evidence of the factors because the trier of fact was never asked to consider them. Wal‐Mart Stores, Inc. v. Sturges,52 S.W.3d 711
, 715 (Tex. 2001); Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc.,201 S.W.3d 272
, 283‐ 86 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Accordingly, when the charge does not instruct the jury to consider an element of a cause of action, finding insufficient evidence regarding that element is immaterial. Harstan, Ltd. v. Kim,441 S.W.3d 791
, 799 (Tex. App.—El Paso 2014, no pet.)(because the charge for statuary fraud failed to require justifiable reliance, legally pet. denied); Hunter v. PriceKubecka, PLLC,339 S.W.3d 795
, 807 (Tex. App.—Dallas 2011, no pet.); Crounse v. State Farm Mut. Auto. Ins. Co.,336 S.W.3d 717
, 719 (Tex. App.— Houston [1st Dist.] 2010, pet. denied); Lee v. Dykes,312 S.W.3d 191
, 194 (Tex. App.— Houston [14th Dist.] 2010, no pet.); Janssen Pharmaceutica, Inc. v. Martinez,296 S.W.3d 634
, 644(Tex. App.—El Paso 2009, no pet.); Dorton v. Chase,262 S.W.3d 396
, 398 (Tex. App.—Waco 2008, pet. denied); Lundy v. Masson,260 S.W.3d 482
, 492 (Tex. App.— Houston [14th Dist.] 2008, pet. denied); In re Estate of Bean,206 S.W.3d 749
, 760 (Tex. App.—Texarkana 2006, pet. denied); Lee v. Hasson,286 S.W.3d 1
, 20 (Tex. App.— Houston [14th Dist.] 2007, pet. denied); Beaumont v. Basham,205 S.W.3d 608
, 619 (Tex. App.—Waco 2006, pet. denied). 16 sufficient evidence on justifiable reliance was not necessary); see also Texas First Nat. Bank v. Ng,167 S.W.3d 842
, 855‐56 (Tex. App.—Houston [14th Dist.] 2005, judgmʹt vacated w.r.m.) (the complaining party waived any argument that evidence was insufficient to support finding of justifiable reliance because jury charge did not require justifiable reliance). Said differently, sufficiency of the evidence reviews cannot be based on legal standards that were not submitted to the jury. Id.; see also Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc.,201 S.W.3d 272
, 283‐86 (Tex. App.— Houston [14th Dist.] 2006, no pet.)(rejecting appellant’s legal arguments establishing substantial performance because they were not submitted to the jury). Here, the charge contained only one question pertaining to the existence of an informal fiduciary duty, and it was Question 5. Specifically, “Question 5” asked: Did a relationship of trust and confidence exist between DAVID SHEARER and CORRINE SHEARER at the time of the occurrence? Jury Charge, 7. The trial court instructed the jury that: 17 A relationship of trust and confidence existed if DAVID SHEARER justifiably placed trust and confidence in CORRINE SHEARER to act in DAVID SHEARER’s best interest. DAVID SHEARER’s subjective trust and feelings alone do not justify transforming an arms‐length dealings into a relationship of trust and confidence. Jury Charge, 7. The trial court instructed the jury to consider only whether a relationship of trust and confidence existed between Corrine Shearer and David Shearer.Id.
Moreover, the trial court instructed the jury that “[a] relationship of trust and confidence existed if David Shearer justifiably placed trust and confidence in Corinne Shearer to act in David Shearer’s best interest. David Shearer’s subjective trust and feelings alone do not justify transforming arm’s‐length dealings into a relationship of trust and confidence.” Jury Charge, 7. Additionally, the trial ourt instructed the jury that a relationship of trust and confidence “cannot be based solely on David’s subjective feelings.” Jury Charge, 7. The trial court’s charge is almost verbatim to the language Corrine Shearer submitted to the trial court in her proposed charge. Def’s. Proposed Charge, 5. Indeed, Corrine Shearer requested that the trial court charge the jury as follows: 18 Did a relationship of trust and confidence exist between Corrine Shearer and David Shearer? A relationship of trust and confidence existed if David Shearer justifiably placed trust and confidence in Corinne Shearer to act in David Shearer’s best interest. David Shearer’s subjective trust and feelings alone do not justify transforming arm’s‐length dealings into a relationship of trust and confidence. Def’s. Proposed Charge, 5. As seen above, the only difference between Corrine Shearer’s requested charge and the charge used by the trial court, is that the trial court’s charge added the phrase “at the time of the occurrence” at the end of the question. See Def’s Proposed Charge, 5; Jury Charge, 7. Corrine Shearer never requested that the trial court charge the jury on the three factors which now form the foundation of her legal and factual sufficiency challenges. Specifically, Corrine Shearer did not request the addition of, or object to the exclusion of, a definition of trust and confidence that required proving that: (1) the confidential relationship existed prior to and apart from the basis of the cause of action; (2) that David was accustomed to being guided by the judgment or advice of Corrine Shearer, or (3) that Corrine Shearer and David lacked equal footing in their relationship. 19 Corrine Shearer’s attorneys objected only to the submission of “Question 2” and “Question 9.” 5 RR 26‐27. After lodging her objections to the submission of Questions 2 and 9, Corrine Shearer’s attorney stated unequivocally that “I have no requested additions to the charge.” 5 RR 26. Corrine Shearer’s attorney’s statement concluded the charge conference. 5 RR 26‐27. Accordingly, Corrine Shearer waived her legal and factually sufficiency points on these factors. See Burbage v. Burbage, 447 S.W.3d at 255; Harstan, Ltd.,441 S.W.3d at 799
; Texas First Nat. Bank,167 S.W.3d at
855‐56. Consequently, Corrine Shearer’s legal and factual sufficiency points should be overruled. Corrine Shearer’s failure to object or request any change to “Question 5” requires this Court to review the sufficiency of the evidence in light of the charge given by the court. Burbage v. Burbage,447 S.W.3d 249
, 260 (Tex. 2014) (when the appellant fails to object to the charge or to request a different charge, the sufficiency of the evidence is measured by the trial court’s charge); Osterberg v. Peca, 12 S.W.3d at 55. Thus, the sufficiency of the evidence to support the existence of an informal fiduciary duty is 20 limited to the factors and elements the court instructed the jury on, and defined for the jury. Id. Yet, Corrine Shearer does not raise on appeal that there is legally or factually insufficient evidence to support the jury’s finding under the trial court’s charge. Accordingly, there is no reason for this Court to perform a legal or factual sufficiency review, and Corrine Shearer’s appellate points concerning the existence of an informal fiduciary duty should be overruled. II. There Is Legally and Factually Sufficient Evidence Supporting the Jury’s Unanimous Finding of the Existence of An Informal Fiduciary Relationship Under the Court’s Charge. If, however, this Court finds that Corrine Shearer has properly raised an appellate point concerning the legal and factual sufficiency of the evidence concerning the existence of an informal fiduciary duty under the trial court’s charge, there is legally and factually sufficient evidence to support the jury’s verdict and trial court’s judgment. Prior to John Shearer’s transfer to the Houston VA, Corrine knew from the social worker at the Overton VA that because she was John Shearer’s ex‐wife, she had no legal authority to make medical decisions on 21 John Shearer’s behalf. 4 RR 46‐48; Pl’s. Ex. 2‐85; 8 RR 91. She also knew that the document she had faxed to the Overton VA expressly provided that she did not have the right to make medical decisions on John Shearer’s behalf. 4 RR 47; Pl’s. Ex. 2‐85; 8 RR 91. Moreover, she knew from the social worker at the Overton VA that the person that had the legal authority to make those decisions was David. 4 RR 47; Pl’s. Ex. 2‐85; 8 RR 91. David correctly believed he was the individual with the right to make medical decisions on behalf of his father, John Shearer. 4 RR 172, 191, 192, 194, 198, 211; TEX. HEALTH & SAFETY CODE §166.039. Corrine even said this to David during their conversations prior to John’s death. 4 RR 59‐63, 65‐66, 161‐162, 191‐ 192, 198, 211. Moreover, the Overton VA left him a voicemail saying that he had the right to make medical decisions on behalf of his dad. 4 RR 172, 192, 198. Moreover, Corrine Shearer knew that David could not come down to stay with John Shearer at the Houston VA. 4 RR 55‐58. Corrine knew that David was in a gun accident just a week prior to John Shearer falling ill and that David Shearer’s wife had recently been diagnosed with a brain tumor. 22 4 RR 55‐58. She also knew that David had three minor children to support. 4 RR 57. As a result, Corrine Shearer knew that David was trusting her to relay the information she obtained from the doctors to him so that he could make decisions concerning his father. 4 RR 59, 67‐68, 198. Moreover, Corrine knew that David trusted her to provide him with accurate information regarding John Shearer’s medical condition: Q: You knew, Corrine Shearer, that during all of those phone conversations, that David was trusting you to accurately tell him what was going on with his father? A: I did the best I could do, sir. Yes, sir. Q: That doesnʹt answer my question. A: Iʹm sorry. What was it? Q: My question was, you knew David was trusting you to accurately provide the information about his father, yes or no? A: Yes. Q: And you also knew that if Davidʹs fatherʹs condition, Johnʹs condition, got to the point where death was going to happen for sure, he was trusting you to give him a call? A: I donʹt know. Q: Remember giving a deposition in this case, Corrine Shearer? A What did you say? Q: You remember giving a deposition in this case? A: Yes Q: You were under oath? 23 A: Yes. … Q: [reading from Corrine Shearer’s Deposition] Did you believe David trusted that you would tell him if his fatherʹs condition got to a point where death was likely? Answer. Death was always likely, but, yes. Did I read that correctly? A: Yes. Q: So you knew that he was trusting you that if that point came – A: Well, yes, sir. Everybody was trusting me. I had to tell them everything. 4 RR 59‐60. Nearly every day, sometimes multiple times a day, David would call Corrine or vice versa. 4 RR 53‐56, 158, 174; Pl’s Ex. 6; Pl’s Demonstrative Ex. 1; 8 RR 590 – 599 and 8 RR 601 ‐ 609. In fact, David and Corrine talked over 60 times during John Shearer’s 33 day stay at the Houston VA hospital. Pl’s Ex. 6; Pl’s Demonstrative Ex. 1; 8 RR 590 – 599 and 8 RR 601 ‐ 609. Yet, this was NOT a one‐sided relationship. That is, David did NOT initiate all the calls. 4 RR 53‐56, 158, 174; Pl’s Ex. 6; Pl’s Demonstrative Ex. 1; 8 RR 590 – 599 and 8 RR 601 609. Corrine Shearer perpetuated the relationship of trust and confidence by initiating 19, nearly 1/3 of the, phone calls. 4 RR 174; Pl’s Ex. 6; Pl’s. Demonstrative Ex. 1; 8 RR 590 – 593, 8 RR 696, 8 RR 604 – 605 24 and 8 RR 608 ‐ 609. Every phone call between Corrine and David was about one thing: John Shearer’s medical condition. 4 RR 55, 174. Indeed, Corrine Shearer updated David concerning the John Shearer’s need for surgery, updates on John Shearer while he was in surgery, and the updates post‐ surgery, in addition to relaying other information Corrine Shearer received from John Shearer’s physicians. 4 RR 96‐97; 174. David Shearer, however, did not know Corrine Shearer was making medical decisions on John Shearer’s behalf during his stay at the Houston VA. 4 RR 175‐76. Nor did David Shearer know that she was representing herself to be John Shearer’s wife at the Houston VA. 4 RR 175. Moreover, when David Shearer went to the Houston VA in late November, he visited with his father, met with physicians, and met with Corrine Shearer. 4 RR 161. They discussed John Shearer’s future care, including the possibility of needing to order a DNR. 4 RR 161. David Shearer and Corrine Shearer further discussed the possibility of a DNR being ordered in the future, including the fact that if that situation arose, Corrine Shearer would let David know and David would make the 25 decision whether to enter a DNR. 4 RR 59‐63, 65‐66, 161‐162, 191‐192, 198, 211. In fact, after returning home to Longview from his trip to the Houston VA in late November, David Shearer made arrangements with his employer to leave in the event he needed to make a decision on whether to enter a DNR on his father. 4 RR 165. Instead, Corrine Shearer informed David Shearer that John Shearer had made a miraculous recovery and that the possibility of a DNR was off the table. 4 RR 162‐163. From then to the day John Shearer died, Corrine Shearer told David that there was not much change in John Shearer’s condition. 4 RR 186‐87. On December 7, 2009, a physician discussed John Shearer’s long term expectations with Corrine Shearer, including the fact that John Shearer would likely need lifelong hemodialysis and may need ventilator support. Pl’s. Ex. 3‐ 39; 8 RR 683. Corrine Shearer and the physician discussed end of life issues and possibly withdrawing versus deescalating care. Pl’s. Ex. 3‐ 39; 8 RR 683. Corrine Shearer represented to the physician that she needed to call family. Pl’s. Ex. 3‐39; 8 RR 683. This conversation between Corrine Shearer and the physician occurred at or before 6:05 p.m. on December 7, 26 2009. Pl’s. Ex. 3‐39; 8 RR 683. At 7:26 p.m., just over an hour later, David Shearer called Corrine Shearer and the two talked for over eleven (11) minutes. Pl’s Ex. 6; Pl’s Demonstrative 1; 8 RR 606. Not one time during this eleven minute conversation did Corrine Shearer tell David Shearer that she and the physician discussed long term care, or the possibility of withdrawing or deescalating John Shearer’s medical care. 4 RR 163‐64. On the morning of December 8, Corrine Shearer lied to the doctors telling them that she had spoken with John’s family, and that she wanted care withdrawn at this time. Pl’s. Ex. 3‐18; 8 RR 772. All life sustaining machines, medications and nutritional support was withdrawn from John Shearer by 3:48 p.m. on December 8, 2009. Pl’s. Ex. 3‐18; 8 RR 772. Corrine Shearer did not inform David Shearer that she had placed such a directive to physicians. 4 RR 73, 163‐64. David Shearer called Corrine Shearer on the evening of December 8, 2009 at 6:01 p.m. and the two spoke for over six (6) minutes. Pl’s Ex. 6; Pl’s. Demonstrative Ex. 1; 8 RR 609; 4 RR 77‐79. During that conversation, Corrine Shearer never mentioned that she had ordered all life sustaining machines, life sustaining medications, and all nutritional 27 support be withdrawn from John Shearer just hours before. 4 RR 78‐79 127, 164. Nor did she inform David that Corrine Shearer ordered a DNR on John Shearer. 4 RR 78‐79 127, 164. John Shearer passed away around 4:00 a.m. on December 9, 2009 without the comfort of his son and approximately 16 hours after Corrine Shearer ordered all life sustaining machines, life sustaining medications and nutritional support be withdrawn and ordered the DNR. 4 RR 82‐83; Pl’s. Ex. 3‐8; 8 RR 679. That is almost ten (10) hours after Corrine Shearer failed to disclose to David what she had done during their phone conversation. Pl’s Ex. 3‐18; 8 RR 772; 4 RR 78‐79 127, 164. Corrine Shearer never told David that she ordered the DNR, or that she ordered all life sustaining machines, medications and nutrients be withdrawn from John Shearer. Pl’s Ex. 3‐18; 8 RR 772. Objectively, David was justified in his reliance on Corrine Shearer to give him accurate and correct information regarding his father’s medical treatment. Corrine Shearer knew she had no right to make medical decisions on John Shearer’s behalf. David Shearer knew that Corrine Shearer had no right to make medical decisions on John Shearer’ behalf. 28 Corrine Shearer further knew David had the right to make such medical decisions, she concealed the fact from David that she was misrepresenting herself to the Houston VA physicians as John Shearer’s wife, and she perpetuated the relationship of trust and confidence by confirming to David that he had the right to make the medical decisions on John’s behalf, by confirming to David that it was his decision concerning the DNR and by continuously providing David Shearer with updates concerning his father’s medical condition. There is more than legally and factually sufficient evidence to support the jury’s unanimous finding that a relationship of trust and confidence existed between David and Corrine Shearer. Accordingly, Appellant’s legal and factually sufficient points should be overruled. III. Corrine Shearer’s Legal and Factual Sufficiency Points of Error are Irrelevant Because the Factors Raised by Corrine Shearer in Her Appeal are Not Required for the Creation of, or the Existence of, an Informal Fiduciary Duty. A fiduciary duty may arise from an informal relationship “where one person trusts in and relies upon another, whether the relation is a moral, social, domestic, or purely personal one.” Fitz‐Gerald v. Hull,237 S.W.2d 29
256, 261 (Tex. 1951). The term fiduciary refers to any person owing a “duty of integrity and fidelity, and it applies to any person who occupies a position of peculiar confidence towards another.” Young v. Fawcett,376 S.W.3d 209
, 214 (Tex. App.—Beaumont 2012, no pet.) (quoting Kinzbach Tool Co. v. Corbett‐Wallace Corp., 160 S.W.2d509, 512 (Tex. 1942). Thus, purely personal relationships, where one places trust in and relies upon a person, may give rise to a fiduciary duty. See Mills v. Gray,210 S.W.2d 985
, 986‐89 (Tex. 1948). Subjective trust alone is not sufficient to establish a confidential relationship. Thigpin v. Locke,363 S.W.2d 247
, 253 (Tex. 1962). The Texas Supreme Court has not identified any additional elements that must be present in establishing an informal fiduciary. See Id; see also Young v. Fawcett,376 S.W.3d at 214
. There are no additional required elements because determining if an informal fiduciary duty exists is “determined from the actualities of the relationship between the persons involved.” Thigpin v. Locke,363 S.W.2d 247
, 253. Moreover, informal fiduciary relationships are determined by the particular circumstance and are thus 30 not governed by hard and rigid tests. Tex. Bank & Trust Co.,595 S.W.2d 502
, 508 (Tex. 1980). In Texas Bank & Trust Co., the Texas Supreme Court reversed the judgement of the appellate court and reinstated the trial court’s judgement finding that a fiduciary relationship existed between the nephew of the decedent and the administrator of the decedent’s estate. Id. at 502. The Court noted that when determining whether an informal fiduciary relationship exists the “problem is one of equity “and the creation of informal fiduciary relationships is “not subject to hard and fast lines.” Id. at 507. As a result, the factors raised in Corrine Shearer’s legal and 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. Corrine Shearer argues that the “the confidential relationship must exist prior to, and apart from, the transaction that forms the basis of the lawsuit.” Appellant’s Br. 10, citing to Meyer v. Cathey,167 S.W.3d 327
, 331 (Tex. 2005). This argument misapplies the rule in Meyer. In Meyer, the 31 Court stated that in a “business transaction” the relationship of trust and confidence must exist prior to and apart from the transaction. Meyer v. Cathey,167 S.W.3d 327
, 331 (Tex. 2005). That is because courts are reluctant to impose an informal fiduciary relationship in business transactions in an effort to “give full force to contracts.” Meyer v. Cathey,167 S.W.3d 327
, 331 (Tex. 2005), citing to Schlumberger Tech. Corp. v. Swanson,959 S.W.2d 171
, 177 (Tex. 1997). When the informal fiduciary relationship arises in a purely personal context, the danger of infringing on private contracts is not implicated. Lacking equal footing in a relationship is another factor that a court has examined when analyzing whether an informal fiduciary relationship exists. See Pope v. Darcey,667 S.W.2d 270
, 273 (Tex. App.—Houston [14th Dist.] 1984, writ refʹd n.r.e.). Likewise, a court has looked at whether the plaintiff was accustomed to relying on advice of another. Trostle v. Trostle,77 S.W.3d at 914
. Yet, the Supreme Court in Thigpen did not hold that these are required factors. Thigpin v. Locke,363 S.W.2d 247
. In fact, the Thigpen Court did not consider them at all.Id.
Instead, the Thigpen Court focused 32 on whether the plaintiff was justified in believing the defendant would act in his best interest.Id.
The fact that there are no hard and fast requirements for the creation and/or existence of an informal fiduciary relationship is also illustrated by the fact that other appellate courts have looked at different factors. Specifically, other courts examining the existence of an informal fiduciary relationship in a personal context have considered whether the plaintiff relied on the defendant for support, the plaintiffʹs advanced age and poor health, and evidence of the plaintiffʹs trust. Trostle v. Trostle,77 S.W.3d 908
, 915 (Tex. App.—Amarillo 2002, no pet.); see also Lee v. Hasson,286 S.W.3d at
14‐16; Hatton v. Turner,622 S.W.2d 450
, 458 (Tex. Civ. App.—Tyler 1981, no writ); Holland v. Lesesne,350 S.W.2d 859
, 862 (Tex. Civ. App.—San Antonio 1961, writ refʹd n.r.e.). That’s because determining whether an informal fiduciary duty exists is “determined from the actualities of the relationship between the persons involved” and the unique factual circumstances. Thigpin v. Locke,363 S.W.2d 247
, 253; see also, Tex. Bank & Trust Co.,595 S.W.2d 502
, 508 (Tex. 1980). Thus, despite Appellants 33 representations to the contrary, there is no requirement that a confidential relationship must exist prior to, and apart from, the transaction that forms the basis of the lawsuit, that the plaintiff be accustomed to relying on the judgment and advice of the defendant and that the plaintiff lack equal footing. IV. Alternatively, if This Court Holds that these Three Factors are Required for the Creation of an Informal Fiduciary Duty, There is Sufficient Evidence to Support the Trial Court’s Judgment. A relationship of trust and confidence existed between David Shearer and Corrine Shearer prior to, and apart from, the transaction that forms the basis of the David Shearer’s claims. David Shearer’s testimony established that while his father was in the Houston VA he became accustomed to getting information and updates from Corrine Shearer concerning his father’s medical condition. 4 RR 157‐158. Again, they spoke nearly every day by telephone. Corrine Shearer’s and David Shearer’s testimony showed that the only topic that David and Corrine Shearer spoke about was John Shearer’s medical condition. 4 RR 55, 174. David’s knowledge of his father’s condition was based on the information he obtained from 34 Corrine Shearer. 4 RR 18. Indeed, Corrine Shearer was David’s only source of information, and she knew that David trusted her to give him correct information. 4 RR 59‐60. During John Shearer’s 33 days in the Houston VA, Corrine Shearer reported to David about five different surgical procedures, in addition to the day to day changes of his father’s medical condition. 4 RR 93, 177. Each of these updates were distinct and separate exchanges. 4 RR 175‐177. David developed trust and reliance on Corrine Shearer after she relayed information to David day by day, procedure after procedure. The breach of fiduciary duty arose only from the final exchange between David and Corrine Shearer—her ordering all life sustaining machines, life sustaining medications, and nutritional support be withdrawn from John Shearer, her ordering the DNR and then concealing that from David. 4 RR 186. Thus, there is sufficient evidence that David Shearer had a relationship of trust and confidence with Corrine Shearer that existed prior to December 7th and 8th and that David was accustomed to receiving advice and judgment from Corrine Shearer. 35 Next, David was in a weaker position to Corrine Shearer regarding his father. David was unable to stay with his father in Houston, or to regularly visit, due to the extreme challenges David was dealing with at home. David testified that a week or two prior to John Shearer being admitted to the Houston VA., he accidently shot through his index finger, and had to have part of it amputated. 4 RR 155. David worked as a mechanic at Aerosmith Aviation, and received an hourly wage. 4 RR 155. His gun accident caused him to miss over a week of work. 4 RR 155. At the time John Shearer was in the Houston VA, David’s son was three‐year‐old, and his two daughters were seven and twelve years old. 4 RR 156. Additionally, David’s wife was diagnosed with a brain tumor over her eyes. 4 RR 155. Thus, while David’s father was in the Houston VA, David was trying to take care of his wife, raise three kids, earn enough money to support his family, and finally, recover from his own injury that resulted in losing part of his index finger. Corrine Shearer knew David’s wife had been diagnosed with a brain tumor, she knew that David blew part of his finger 36 off, she knew David was raising three kids, and he was working to support his family. 4 RR 57‐58. These difficult circumstances left David completely dependent on Corrine Shearer to provide him with information about his father’s health. David testified that he trusted Corrine Shearer would provide him with accurate information. 4 RR 158. Corrine Shearer was in Houston, she was able to talk to the doctors, she was able to see John and witness his condition every day. 4 RR 72, 83. Because Corrine Shearer was able to be with John Shearer every moment, she occupied a position of dominance and control. Corrine Shearer had all the information, and David was dependent on her to give them the accurate information. Accordingly, the trial court has sufficient evidence to find that a Corrine Shearer was in a position of dominance over David Shearer. V. Intentional Infliction of Emotional Distress Represents the Only Available Cause of Action for David to Recover for Corrine Shearer’s Wrongful Disposition of John Shearer’s Ashes. Corrine Shearer claims on appeal that David Shearer could have recovered under an invasion of privacy cause of action, and thus cannot 37 recover under IIED. Appellant’s Br. 18. Specifically, Corrine Shearer argues that David could have recovered through his invasion of privacy cause of action under, Texas Health & Safety Code § 711.002. Appellant’s Br. 19‐20. In Texas, IIED is a ʺgap‐fillerʺ tort; a tort that was judicially created for the limited purpose of “allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.” Hoffmann‐La Roche, Inc. v. Zeltwanger,144 S.W.3d 438
, 447 (Tex. 2004). The purpose of an IIED Cause of action is ʺto supplement existing forms of recovery by providing a cause of action for egregious conduct that might otherwise go unremedied.” Standard Fruit and Vegetable Co. v. Johnson,985 S.W.2d 62
, 68 (Tex. 1998). Invasion of privacy is not an adequate theory of recovery for Corrine Shearer’s wrongful taking and disposing of John Shearer’s ashes. In Texas, human remains are considered property. See Evanston Ins. Co. v. Legacy of Life, Inc.,370 S.W.3d 377
(Tex. 2012). Thus, Corrine Shearer interfered with David Shearer’s property rights. She did not invade David Shearer’s 38 solitude, his seclusion, or his private affairs, which is required for invasion of privacy. See Valenzuela v. Aquino,853 S.W.2d 512
, 513 (Tex. 1993). Corrine Shearer took something that belonged to David, that has extreme emotional value and intentionally disposed of without authority and after the rightful owner requested the ashes. As a result, the only possible cause of action available to David Shearer was for conversion or intentional infliction of emotional distress, as noted by the trial judge. 5 RR 10‐11. Moreover, the trial court granted Corrine Shearer’s Motion for Directed Verdict on David Shearer’s conversion cause of action after the close of evidence. 5 RR 15‐16. The trial judge held that “Texas is yet to recognize a conversion claim as to human remains.” 5 RR 15. The trial judge noted that fair market damages is a “critical element” for conversion and that remains have no fair market value. 5 RR 15. Consequently, the trial judge held conversion is not an available cause of action. 5 RR 15. Because conversion was not appropriate for this unique factual situation, the IIED gap‐filler was necessary to allow recovery for Corrine Shearer’s egregious conduct that would otherwise go unremedied. 39 The Houston Court of Appeals has stated that there is no other cause of action available but intentional infliction of emotion distress for the wrongful treatment of human remains. Priebe v. AʹHearn,2011 Tex. App. LEXIS 2542
, *15 (Tex. App.—Houston [1st Dist.] Apr. 6, 2011, no pet.)(mem. op.). In Priebe, the court held that because the plaintiff alleged facts in support of her IIED claim, regarding her father’s remains that did not support any other cause of action, IIED was the appropriate cause of action to bring.Id.
As in Priebe, David Shearer established independent facts that
support his IIED claim. Thus, David Shearer’s claim is not barred because
the IIED was based on independent facts not supported by any other cause
of action. See Hoffmann‐La Roche, Inc. v. Zeltwanger, 144 S.W.3d at 447.
40
PRAYER
For these reasons, David Shearer asks this Court to overrule Corrine
Shearer’s points of error and affirm the trial courts judgment.
Respectfully submitted,
Carson R. Runge
Attorney for David Shearer
Sloan, Bagley, Hatcher & Perry Law Firm
101 East Whaley St., Longview, TX 75601
903‐757.7000 ext.213
Fax: 903‐757‐7574
crunge@sloanfirm.com
State Bar Number: 24059262
/s/ Carson Runge
Carson Runge
41
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(1)(3) this is to
certify that the Appellee’s Brief contains 8,362 words, according to
Microsoft Word 2010’s word count, which does not include the caption,
identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues
presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and
appendix.
/s/ Carson Runge
Carson Runge
42
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the Appellee’s Brief has
been served upon the named individuals listed below by electronic service
and/or email, in accordance with the Texas Rules of Civil Procedure on
April 8, 2015.
J. CHAD PARKER
cparker@theparkerfirm.net
Bar Card No: 15489000
THE PARKER FIRM, P.C.
3808 Old Jacksonville Rd.
Tyler, Texas 75701
(903) 595‐4541 ‐ telephone
(903) 595‐2864 ‐ facsimile
/s/ Carson Runge
Carson Runge
43
NO. 12-14-00302-CV
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
CORRINE AUGUSTINE NICHOLS HILL SHEARER
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
APPENDIX TO APELLEE’S BRIEF
Carson R. Runge
Attorney for David Shearer
Sloan, Bagley, Hatcher & Perry Law Firm
101 East Whaley St., Longview, TX 75601
Phone: 903-757.7000 ext.213
Fax: 903-757-7574
State Bar Number: 24059262
Table of Contents
Tab 1: Jury Charge
Tab 2: Defendant’s Proposed Jury Charge
Tab 3: Plaintiff David Shearer, Individually and as Independent
Administrator of the Estate of John William Shearer, III’s Second
Amended Petition
Tab 4: Plaintiffs Demonstrative Exhibit 1
Tab 5: Tex. R. Civ. P. 272
Tab 6: Tex. R. Civ. P. 274
Tab 7: Tex. R. Civ. P. 278
Tab 8: Tex. R. Civ. P. 279
Tab 9: Tex. Health & Safety Code § 166.039
Tab 10: Tex. Health & Safety Code § 711.002
Jury Charge
\\
FILED
GREGG COUNTY. TÐûS
JUL 0 22014
CAUSE NO. 201 1-1919-CCL2
DAVID SHEARER, IndividuallY and as $ IN THE COUNTY COURT
Independent Administrator of the Estate $
of JOHN WILLIAM SHEARER, III $
$ AT LAW #2
$
$
CORRINE AUGUSTTNE HILL $
SHEARER $ GREGG COLINTY, TEXAS
JURY INSTRUCTIONS
LADIES AND GENTLEMEN OF THE JURY:
After the closing arguments, you will go to the jury room to decide the case, answer the questions
jurors only when you
that are attacheã, and reach a verdict. You may discuss the case with other
are all together in the jurY room.
Remember my previous instructions: Do not discuss the case with anyone else, either
in person or
means. Do not do any independent investigation
by any other about the case or conduct any
research. Do not look up any wordi in diõtiona ies or on the Intemet. Do not post information
about the case on the Internei. Do not share any special knowledge or experiences
with the other
jurors. Do not use your phone or any other electronic device during your deliberations for any
feason.
Any notes you have taken are for your own personal use. You may take your notes back into the
but do not show or read your notes to your fellow
¡ury room and consult them during deliberatiõns,
ju.átr during your deliberations. Your notes are not evidence. Each of you should rely on your
has or
independenirécollection ofthe evidence and not be influenced by the fact that anotherjuror
has not taken notes,
you must leave your notes with the bailiff when you are not deliberating. The bailiff will give your
notes to me promptly after collecting them from you. I witl make sure
your notes are kept in asafe,
the bailiff will
secure location and not disclosed toãnyone. After you complete your deliberations,
'When
collect your notes. you are released from jury duty, the bailiff will promptly destroy your
notes so that nobody can read what you wrote.
Here are the instructions for answering the questions'
L Do not let bias, prejudice, or sympathy play any part in your decision'
Base your unr*L.. only on thã .uid"n" admitted in court and on the law
that is in these
Z. not admitted
instructions and questións. Do not consider or discuss any evidence that was
in the couttroom'
True and Correct coPY of original
filed in the Gregg CountY District
Clerk Office
judges of the
J You are to make up your own minds about the facts. You are the sole
of law,
credibility of the wiinr.res and the weight to give their testimony, But on matters
you must follow all of my instructions'
4. if my instructions use a word in a way that is different from its ordinary meaning, use the
meaning I give you, which will be a proper legal definition'
5. All the [u.ãtiont and answers are important, No one should say that any question or answer
is not important.
¿yes" or .,no" to all questions unless you are told otherwise. A "yes" answer must
6. Answer
be based on a preponderance of the evidence unless you are told otherwise.
Whenever a
qUestiOn requiieS an answer Other than "yes" or "no," your answer must be based On a
prepond".ance ofthe evidence unless you are told otherwise. The term "preponderance
of
case' If you
the evidence" means the greater weigirt of credible evidence presented in this
do not flrnd that a pr"pond"rance of the evidence supports a "yes" answer, then answer
,,no.,' A preponderáncå of the evidence is not measured by the number of witnesses or by
preponderance
the numberãf do"u-.nts admitted in evidence. For a fact to be proved by a
of the evidence, you must fînd that the fact is more likely true than not true'
just
7 Do not decide who you think should win before you answer the questions and then
answer the questions to match your decision. Answer each question carefully. without
considering ùho will win. Do not discuss or consider the effect your answers
will have'
8 Do not answer questions by drawing straws or by any method of chance'
Some questions might ask you for adollar amount, Do not agree in advance
to decide on a
9
dollar ámount Uy adding up each juror's amount and then f,rguring the average'
Do not trade your ans*"rr. For example, do not say, "I will answer this question
your way
l0
if you answeÍ another question my way'"
the decision of at
1l Uáless directed otherwise, the answers to the questions must be based on
not agree to
least 10 of the 12 jurors. The same 10 jurors must agree on every answer. Do
a majority'
be bognd by a vote of anything less than l0 jurors, even if it would be
As you do not follow these instructions, you will be guilty of juror
I have said before, if
This would
misconduct, and I might have to order a new trial and start this process over again'
to pay for
waste you. ii*. and the parties' money, and would require the taxpayers of this gounty
another trial. If a jurorïreaks uny oî these rules, tell that person to stop and report it to me
immediately.
A fact may be established by direct evidence or by circumstantial evidence
or both' A fact is
established by direct evidence when proved by documentary evidence
or by witnesses who saw the
evidence when it may
act done or heard the words spoken. A fact is established by circumstantial
be fairly and reasonably infened from other facts proved'
DEFINITIONS
I
.,DAVID SHEARER" means Plaintiff, David Shearer, in his individual capacity.
.,CORRINE SHEARER" means Defendant, Corrine Augustine Nichols Hill Shearer
2
J
,.JOHN SHEARER" means John william shearer, III, Deceased.
Truc and Correct copv of original
liled in the Gregg County DisiricÌ
Clerk Oftice.
QUESTION 1:
or
Did CORRINE SHEARER inrentionally intrude into JOHN SHEARER's solitude, seclusion,
person?
private affairs or concems in a manner that would be highly offensive to a reasonable
ttNo":
Answgr "Ygsttor
ANSWER: ñ
True and Correct copy of original
filed in the Gregg County District
Clerk Office.
QUESTION 2:
Answer the following question only if you answered "yes" to Question l, Otherwise, do not
answer the following question.
What sum of money, if paid now in cash, would fairly and reasonably compensate JOHN
SHEARER for menial anguish sustained in the past, if any, resulting from the occurrence in
question?
"Mental anguish" means the conscious emotional pain, torment, and suffering experienced by
JOHN SHEÀRER before his death as a result of the intentional invasion of JOHN SHEARER's
solitude, seclusion or privacy.
Consider the element of damage listed above and none other. Do not award any sum of money on
any element if you have otherwise, under some other element, awarded a sum of money for the
same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any
amount of damages you flrnd,
Answer, in dollars and cents, for damages, if any.
ANSWER:
True and Correct copy of original
filed in the Gregg CoLrnty District
Clerk Ofiice.
QUESTION 3:
seclusion, or
Did CORRINE SHEARER intentionally intrude into DAVID SHEARER's solitude,
person?
private affairs or concerns in a manner ihat would be highly offensive to a reasonable
Answer "Yes" or "No":
ANSWER:
True and Correct copy of original
illed¡n the Gregg County Dislrict
Clerk Ofiice.
Answer the following question only if you answered "Yes" to Question 3' Otherwise, do not
answer the following question'
QUESTION 4:
compensate DAVID
What sum of money, if paid now in cash, would fairly and reasonably
SHEARER for his dá.agåt, if any, that resulted from the occurrence in
question?
each element separately.
Consider the elements of damage listed below and none other. Consider
some other element,
Do not award any sum of mone! on any element if you have otherwise, under
awarded a Sum of money for the same loss. That is, do not compensate
twice for the same loss, if
any. Do not include interest on any amount of damages you find.
Answer separately, in dollar and cents, for damages, if any'
1. Mental anguish sustained in the past.
,.Mental anguish" means the emotional pain, torment, and suffering experienced by
DAVID SHEARER as a result of the intentional invasion of DAVID SHEARER's
solitude, seclusion or PrivacY.
2. Mental anguish sustained in the future.
ANS\ilER:
True and Correct copy of original
filed in the Gregg County District
Clerk Ofiice
QUESTION 5:
and CORRINE
Did a relationship of trust and confidence exist between DAVID SHEARER
SHEARER at the time of the occurrence?
justifiably placed trust and
A relationship of trust and confidence existed if DAVID SHEARER
CONfidCNCE iN CORRINE SHEARER tO ACt iN DAVID
SHEARER'S bESt iNtCTCSt. DAVID
arms-length dealings
SHEARER,s subjective trust and feelings alone do not justify transforming
into a relationship of trust and confidence'
ttYgs" or "Nott:
Answgr
ANSWER:
True and Correct coPY of original
filed in the Gregg CountY District
Clerk Office.
'¡
Answer the following question only if you answered "Yes" to Question 5. Otherwise, do not
answer the following question,
QUESTTON 6:
Did CORRINE SHEARER fail to comply with her fiduciary duty to DAVID SHEARER?
Because a relationship of trust and confidence existed between them, CORRINE SHEARER
owed DAVID SHEARER a fìduciary duty. To prove CORRINE SHEARER failed to comply
with her fiduciary duty, DAVID SHEARER must show-
1. The occurrence in question was not fair and equitable to DAVID SHEARER; or
2. CORRINE SHEARER did not make reasonable use of the confidence that DAVID
SHEARER placed in her; or
3. CORRINE SHEARER failed to act in the utmost good faith or exercise the most
scrupulous honesty toward DAVID SHEARER; or
4. CORRINE SHEARER placed her own interests before DAVID SHEARER's, used
the advantage of her position to gain a benefit for herself at the expense of DAVID
SHEARER, or placed herself in a position where her self-interest might conflict with
her obligations as a fiduciary; or
5. CORRINE SHEARER failed to deal openly and to fully and fairly disclose all important
information to DAVID SHEARER conceming the occurrences in question.
Answer "Yes" or "No":
ANS\üER: L
True and Correct coPY of original
filed in the Gregg CountY Distrìct
Clerk 0Ífice
to Question 6'
Answer the following question only if you answered "Yes" to Question 5 and "Yes"
Otherwise, do not answer the following question'
QUESTION 7:
DAVID
What sum of money, if paid now in cash, would fairly and reasonably compensate
SHEARER for his damagãs, if any, that resulted from the occurrence in question?
Consider the elements of damage listed below and none other. Consider each element
separately.
under some other element,
Do not award any sum of mone! on any element if you have otherwise,
awarded a sum of money for the same loss. That is, do not compensate twice for the
same loss, if
any. Do not include interest on any amount of damages you find'
Answer separately, in dollar and cents, for damages, if any'
l. Mental anguish sustained in the past.
,,Mental anguish" means the emotional pain, torment, and suffering experienced by
DAVID SHEARER because of CORRINE SHEARER's failure to comply with her
f,rduciary duty.
ANS\ryEN:3 {\r\
2. Mental anguish sustained in the future'
,A.NSWER:
True and Correct copy of original
filed in the Gregg County District
Clerk O'ftice,
Answer the following question only if you answered "Yes" to Question 7. Otherwise, do not
answer the following question.
QUESTTON 8:
To answer "Yes" to the following question, your answer must be unanimous. You may answer
'No" to the following question only upon a vote of ten or more jurors. Otherwise, you must not
answer the following question.
Do you find by clear and convincing evidence that the harm to DAVID SHEARER
resulted from malice?
"Malice" means a specific intent by CORRINE SHEARER to cause substantial harm to
DAVID SHEARER.
Answer ttYest' or ttNo":
ANSI#ER:
True and Conect coPY of original
fiied in the Gregg CountY District
Clerk 0fl¡ce.
QUESTTON 9:
Did CORRINE, SHEARER intentionally inflict severe emotional distress on DAVID SHEARER?
Intentional infliction of emotion distress occurs when the defendant acts intentionally or recklessly
with extreme and outrageous conduct to cause the plaintiff emotional distress and the emotional
distress suffered by the plaintiff was severe.
"Extreme and outrageous conduct" occurs only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency and to be
regarded as atrocious and utterly intolerable in a civilized cornrnunity.
Answer "Yes" or "No."
ANSWER: 5
True and Correct copy of original
filed in the Gregg County Disirict
Clerk 0ilice.
Answer the following question only if you answered "Yes" to Question 9. Otherwise, do not
answer the following question.
QUESTTON 1o:
What sum of money, if paid now in cash, would fairly and reasonably compensate DAVID
SHEARER for his damages, if any, that resulted from the occurrence in question?
Consider the elements of damage listed below and none other. Consider each element separately.
Do not award any sum of money on any element if you have otherwise, under some other element,
awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if
any. Do not include interest on any amount of damages you find.
Answer separately, in dollar and cents, for damages, if any
L Mental anguish sustained in the past
"Mental anguish" means the emotional pain, torment, and suffering experienced by
DAVID SHEARER as a result of the intentional infliction of severe emotional distress
ANSWER:
2. Mental anguish sustained in the future
ANSWER:
True and Conect coPY of original
filed in the Gregg CountY District
Clerk Ofiice.
Presiding Juror:
I When you go into the jury room to answer the questions, the first thing you will need to do
is choose a presiding juror.
) The presiding juror has these duties:
a. have the complete charge read aloud if it will be helpful to your deliberations;
b. preside over your deliberations, meaning manage the discussions, and see that you
follow these instructions;
c. give written questions or comments to the bailiff who will give them to the judge;
d. write down the answers you agree on;
e, get the signatures for the verdict certificate; and
f. notify the bailiff that you have reached a verdict.
Instructions for Signing the Verdict Certificate:
1. You may ans\ryer the questions on a vote of l0 jurors. The same 10 jurors must agree on
every answer in the charge. This means you may not have one group of l0 jurors agree on
one answer and a different group of 10 jurors agree on another answer.
2, If l0jurorsagreeon every answer, those l0jurors signtheverdict. Ifal.l'l?ofyouagree
on every answer, you are unanimous and only the presiding juror signs the verdict.
3. All jurors should deliberate on every question. You may end up with all 12 of you agreeing
on some answers, while only l0 of you agree on other answers. But when you sign the
verdict, only those 10 who agree on every answer will sign the verdict.
JUL 0 2 ïgt+
e /t: z//.a. JUDGE PB¿ES G
True and Correct coPY of original
tiled in the Gregg CountY Disirict
Clerk Ofiice.
*,u[Jolr,ñDr.*,
J L 0220t
VERDICT CERTIFICATE AS TO OUESTIONS V
BY
We, the jury, have answered the above and foregoing questions as herein and
herewith return same into court as our Verdict.
CHECK ONE:
Our verdict is unanimous. All TWelve (12) of us have agreed to each and every
answer. The presiding juror has signed the certificate for all 12 of us
of Juror Printed Name of Presiding Juror
Our verdict is 4! unanimous. Ten (10) of us have agreed to each and every answer
signed the certificate below.
Jurors' Signatures Jurors' Printed Names
I Wn'l-F't{p-
Sel
J
I 1
tì¡ t'L I
il í ¡t1",'i.r\
,/
Õ
)
5 'llt
6 t! (-
/ì
Gr,*¿n/, V /:',',,', -i¿
\ { n,¡\s ÅJ r.r \\
1r
of onginal
Truc an,i Correct coPY
m. Gtegg CountY Dis"ricl
iiioi in
Clerk OÍÌice
VERDICT CERTIFICATE AS TO o UESTIONS 5^ 6^ 7& I
We, the jury, have answered the above and foregoing questions 5, ó, 7 8¿ 8 as herein
indicated, and herewith retum same into court as our Verdict,
Our verdict is unanimous. I certify that the jury was unanimous in answering
questions 5, 6, 7 8. 8. All Twelve (12) of us have agreed to each and every answer. The
presiding juror has signed the certificate for all 12 of us.
t
¡\ l,'
t
of Pre Juror Printed Name of Presiding Juror
CLERK
DeputY
Truc and Correct copy of original
filed Ín the Gregg County D¡sir¡ct
Clerk 0Ítice.
Defendant’s Proposed Jury Charge
CAUSE NO. 2011-1919-CCL2
DAVID SHEARER, Individually and as § IN THE COUNTY
Independent Administrator of the Estate §
of JOHN WILLIAM SHEARER, III, §
and LAWYNDA OLSON §
§ COURT AT LAW NO. 2
§
vs. §
§
CORRINE AUGUSTINE NICHOLS § OF GREGG COUNTY, TEXAS
HILL SHEARER §
DEFENDANT’S PROPOSED JURY CHARGE
MEMBERS OF THE JURY:
After the closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.
Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or conduct
any research. Do not look up any words in dictionaries or on the Internet. Do not post information
about the case on the Internet. Do not share any special knowledge or experiences with the other
jurors. Do not use your phone or any other electronic device during your deliberations for any
reason. I will give you a number where others may contact you in case of an emergency
Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during deliberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely
on your independent recollection of the evidence and not be influenced by the fact that another
juror has or has not taken notes.
Here are the instructions for answering the questions.
1. Do not let bias, prejudice, or sympathy play any part in your decision.
2. Base your answers only on the evidence admitted in court and on the law
that is in these instructions and questions. Do not consider or discuss any evidence that was
not admitted in the courtroom.
3. You are to make up your own minds about the facts. You are the sole judges
of the credibility of the witnesses and the weight to give their testimony. But on matters of
law, you must follow all of my instructions.
4. If my instructions use a word in a way that is different from its ordinary
meaning, use the meaning I give you, which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any
question or answer is not important.
6. Answer “yes” or “no” to all questions unless you are told otherwise. A
“yes” answer must be based on a preponderance of the evidence unless you are told
otherwise. Whenever a question requires an answer other than “yes” or “no,” your answer
must be based on a preponderance of the evidence unless you are told otherwise.
The term “preponderance of the evidence” means the greater weight of credible
evidence presented in this case. If you do not find that a preponderance of the evidence
supports a “yes” answer, then answer “no.” A preponderance of the evidence is not
measured by the number of witnesses or by the number of documents admitted in evidence.
For a fact to be proved by a preponderance of the evidence, you must find that the fact is
more likely true than not true.
7. Do not decide who you think should win before you answer the questions
and then just answer the questions to match your decision. Answer each question carefully
without considering who will win. Do not discuss or consider the effect your answers will
have.
8. Do not answer questions by drawing straws or by any method of chance.
9. Some questions might ask you for a dollar amount. Do not agree in advance
to decide on a dollar amount by adding up each juror’s amount and then figuring the
average.
10. Do not trade your answers. For example, do not say, “I will answer this
question your way if you answer another question my way.”
11. Unless otherwise instructed the answers to the questions must be based on
the decision of at least ten of the twelve jurors. The same ten jurors must agree on every
answer. Do not agree to be bound by a vote of anything less than ten jurors, even if it
would be a majority.
As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would
waste your time and the parties’ money, and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.
QUESTION NO. 1
Did Corrine Shearer, without consent, intentionally intrude on John William Shearer,
III’s solitude, seclusion or privacy by ordering the removal of life-sustaining treatment from
him?
You must find by a preponderance of the evidence that the intrusion was substantial
enough that it was unreasonable, unjustified, or unwarranted.1
You are instructed that consent is a defense to an intentional intrusion on solitude,
seclusion or privacy if:
A) John William Shearer, III gave his effective consent to Corrine Shearer for the
intrusion
or
B) Corrine Shearer had a reasonable belief that John William Shearer, III consented to
the intrusion
Answer “Yes” or “No.”
Answer: _______________
1
Vaughn v. Drennon, 202 S.W.3d 308, 320 (Tex. App. – Tyler 2006, no pet.)(citing Billings v. Atkinson,489 S.W.2d 858
, 869 (Tex. 1973). QUESTION NO. 2 Did Corrine Shearer intentionally intrude on David Shearer’s solitude, seclusion or privacy by ordering the removal of life-sustaining treatment from John William Shearer, III? You must find by a preponderance of the evidence that the intrusion was substantial enough that it was unreasonable, unjustified, or unwarranted.2 You are instructed that consent is a defense to an intentional intrusion on solitude, seclusion or privacy if: A) John William Shearer, III gave his effective consent to Corrine Shearer for the intrusion or B) Corrine Shearer had a reasonable belief that John William Shearer, III consented to the intrusion Answer “Yes” or “No.” Answer: _______________ 2 Vaughn v. Drennon,202 S.W.3d 308
, 320 (Tex. App. – Tyler 2006, no pet.)(citing Billings v. Atkinson,489 S.W.2d 858
, 869 (Tex. 1973).
QUESTION NO. 3
Did a relationship of trust and confidence exist between Corrine Shearer and David
Shearer?
A relationship of trust and confidence existed if David Shearer justifiably placed trust and
confidence in Corinne Shearer to act in David Shearer’s best interest. David Shearer’s subjective
trust and feelings alone do not justify transforming arm’s-length dealings into a relationship of
trust and confidence.
Answer “Yes” or “No.”
Answer: ________________
If you answered “Yes” to Question No. 3, then answer Question No. 4. Otherwise,
do not answer Question No. 4.
QUESTION NO. 4
Did Corrine Shearer fail to comply with her fiduciary duty to David Shearer?
Because a relationship of trust and confidence existed between them, Corrine Shearer
owed David Shearer a fiduciary duty. To prove Corrine Shearer failed to comply with her
fiduciary duty, David Shearer must show—
1. the transaction in question was not fair and equitable to David Shearer; or
2. Corrine Shearer did not make reasonable use of the confidence that David
Shearer placed in her; or
3. Corrine Shearer failed to act in the utmost good faith or exercise the most
scrupulous honesty toward David Shearer; or
4. Corrine Shearer placed her own interests before David Shearer’s, used the
advantage of her position to gain a benefit for herself at the expense of David Shearer, or
placed herself in a position where her self-interest might conflict with her obligations as a
fiduciary; or
5. Corrine Shearer failed to fully and fairly disclose all important information
to David Shearer concerning the transaction.
Answer “Yes” or “No.”
Answer: ________________
If you answered “Yes” to Question No. 1, then answer the following Question.
Otherwise, do not answer the following Question.
QUESTION NO. 5
What sum of money would have fairly and reasonably compensated John William
Shearer, III for—
1. Mental anguish.
“Mental anguish” means the conscious emotional pain, torment, and suffering
experienced by John William Shearer, III before his death as a result of the intentional
invasion of John William Shearer, III’s solitude, seclusion or privacy.
Answer in dollars and cents for damages, if any.
Answer: _______________
Answer the following question only if you unanimously answered “Yes” to Question No.
1. Otherwise, do not answer the following question.
To answer “Yes” to any part of the following question, your answer must be unanimous.
You may answer “No” to any part of the following question only upon a vote of ten or more
jurors. Otherwise, you must not answer that part of the following question.
QUESTION NO. 6
Do you find by clear and convincing evidence that the harm to John William Shearer, III
resulted from malice?
“Clear and convincing evidence” means the measure or degree of proof that produces a
firm belief or conviction of the truth of the allegations sought to be established.
“Malice” means a specific intent by Corrine Shearer to cause substantial injury or harm to
John William Shearer, III.
Answer “Yes” or “No.”
Answer: _______________
If you answered “Yes” to Question No. 2, then answer the following Question.
Otherwise, do not answer the following Question.
QUESTION NO. 7
What sum of money would fairly and reasonably compensate David Shearer for—
1. Mental anguish sustained in the past.
2. Mental anguish that, in reasonable probability, David Shearer will sustain
in the future.
“Mental anguish” means the conscious emotional pain, torment, and suffering
experienced by David Shearer as a result of the intentional invasion of David Shearer’s
solitude, seclusion or privacy.
Answer in dollars and cents for damages, if any.
Answer: _______________
Answer the following question only if you unanimously answered “Yes” to Question No.
2. Otherwise, do not answer the following question.
To answer “Yes” to any part of the following question, your answer must be unanimous.
You may answer “No” to any part of the following question only upon a vote of ten or more
jurors. Otherwise, you must not answer that part of the following question.
QUESTION NO. 8
Do you find by clear and convincing evidence that the harm to David Shearer resulted
from malice?
“Clear and convincing evidence” means the measure or degree of proof that produces a
firm belief or conviction of the truth of the allegations sought to be established.
“Malice” means a specific intent by Corrine Shearer to cause substantial injury or harm to
David Shearer.
Answer “Yes” or “No.”
Answer: _______________
If you answered “Yes” to Question No. 4, then answer the following Question.
Otherwise, do not answer the following Question.
QUESTION NO. 9
What sum of money, if paid now in cash, would fairly and reasonably compensate David
Shearer for his damages, if any, resulting from the breach of fiduciary duty?
Consider the elements of damages listed below and none other. Consider each element
separately. Do not award any sum of money on any element if you have otherwise, under some
other element, awarded a sum of money for the same loss. That is, do not compensate twice for
the same loss, if any. Do not include interest on any amount of damages you find.
1. Mental anguish sustained in the past.
“Mental anguish” means the emotional pain, torment, and suffering experienced
by David Shearer because of Corrine Shearer’s breach of fiduciary duty.
Answer: _______________
2. Mental anguish that, in reasonable probability, David Shearer will sustain
in the future.
Answer: _______________
Answer the following question regarding Corrine Shearer only if you unanimously
answered “Yes” to Question No. 4. Otherwise, do not answer the following question.
To answer “Yes” to any part of the following question, your answer must be unanimous.
You may answer “No” to any part of the following question only upon a vote of ten or more
jurors. Otherwise, you must not answer that part of the following question.
QUESTION NO. 10
Do you find by clear and convincing evidence that the harm to David Shearer resulted
from malice?
“Clear and convincing evidence” means the measure or degree of proof that produces a
firm belief or conviction of the truth of the allegations sought to be established.
“Malice” means a specific intent by Corrine Shearer to cause substantial injury or harm to
David Shearer.
Answer “Yes” or “No.”
Answer: _______________
Plaintiff David Shearer, Individually and as Independent Administrator
of the Estate of John William Shearer, III’s Second Amended Petition
CAUSE NO. 20I1-ß19-CCL2
*Æ#^å,o.,*,
DAVID SHEARER,Individually and as $ IN THE COUNTY COüM I7 2r/I4
Independent Administrator of the Estate $
of JOHN WILLIAM SHEARER,III, $
and LAWYNDA OLSEN $
Plaintiffs. s
s
vs s AT LAW #2
s
CORRINE AUGUSTINE HILL $
SHEARER $
Defendant. $ GREGG COUNTY, TEXAS
PLAINTIF'F.. DAVID SHEARER. AI,I,Y AND AS INDEPENDENT
ADMINISTRATOR OF THE ESTATE OF JOHN WILLIAM SHEARER.III'S
SECOND AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Plaintiff, DAVID SHEARER, lndividually and as Independent
Administrator of the Estate of JOHN WILLIAM SHEARER, III, complaining of and against
Defendant CORRINE AUGUSTINE NICHOLS HILL SHEARER and files this his Second
Amended Petition, and for cause of action would respectfully showthis Honorable Court as follows:
A. DISCOVERY CONTROL PLAN
1. Plaintiff intend that Discovery be conducted pursuant to a Level 3 discovery control
plan. Tex. R. Crv. P. 190.4.
B. PARTIES
2. Plaintiff, DAVID SHEARER, Individually and as Independent Administrator of the
Estate of John William Shearer, III, an individual, is a resident of Gregg County, Texas. The last
four numbers of Plaintiff s social security number are XXX-XX-2817.
Plaintiffs David Shearer's Second Amended Petition Page I
3. PlaintifT, LAWYNDA OLSEN, an individual, is a resident of Rockwall County,
Texas. The last four numbers of Plaintifls social security number are XXX-XX-22I}.
4. Defendant, CORINNE AUGUSTINENICHOLS HILL SHEARER, is an individual
who resides in Gregg County has been served and has answered herein.
C. JURISDICTION & VENUE
5. The Court has jurisdiction over Defendant because Defendant, Corrine Augustine
Nichols Hill Shearer is a Texas resident and resides in Gregg County. The Court has jurisdiction
over the controversy because Plaintiff was injured and seek damages in excess of the minimal
jurisdictional limits of this Court.
6. Venue is proper in Gregg County pursuant to Trx. Crv. Pnec. & RBtr¿. Cooe $
15.002(a)(2) because Defendant is a natural person and is a resident of Gregg County, Texas.
D. FACTS
7 . This case arises from Defendant Corrine Augustine Nichols Hill Shearer's decision,
without any right or authority, to order doctors to remove life sustaining medicines and machines
from her ex-husband, John William Shearer, III ("John Shearer") thus causing John Shearer to
ultimately pass away and then, againwithout any right or authority, disposing of his ashes. John
Shearer is the father of Plaintiff David Shearer. John Shearer and Defendant Corine Augustine
Nichols Hill Shearer married in 1991. On February 1, 2008, John Shearer and Defendant legally
divorced in Gregg County, Texas. John Shearer and Defendant lived in the same house after their
divorce. By her own admission, Defendant Corrine Augustine Nichols Hill Shearer and John
Shearer never remarried and were never coÍrmon law married after their divorce was finalized on
February 1,2008.
Plaintiffs David Shearer's Second Amended Petition Page2
8. On Novemb er 2,2009, John Shearer became ill and went to Overton Brooks VA
Medical Center in Shreveport, Louisiana, where he was admitted. Defendant Corrine Augustine
Nichols Hill Shearer accompanied him to the hospital. OnNovember 5,2009, doctors at Overton
Brooks VA Medical Center in Shreveport, Louisiana decided to transfer John Shearer to the The
Michael E. DeBakey VA Medical Center ("Houston VA Medical Center") in Houston and sought
the family, s approval. After discovering that Defendant Corrine Augustine Nichols Hill Shearer was
John Shearer's ex-wife, a social worker met with Defendant and informed her she had no authority
to make medical decisions on behalf of John Shearer and that the people with the legal authority to
make medical decisions on behalf of John Shearer were his children, including Plaintiff David
Shearer. John Shearer was transferred to the Houston VA Medical Center on November 6,2009-
g. Defendant Corrine Augustine Nichols Hill Shearer accompanied John Shearer to the
hospital in Houston and stayed attheFisher House. Knowing that she did not have any authority
to
make medical decisions on behalf of John Shearer, Defendant Corrine Augustine Nichols Hill
Shearer fraudulently represented to the doctors in Houston that she was John Shearer's
wife.
plaintiff David Shearer, had no idea that Defendant Corrine Augustine Nichols Hill Shearer was
fraudulently representing herself to the doctors as his father's wife. While his father was at the
Houston VA Medical Center, Plaintiff David Shearer, was not able to stay in Houston with his father
because he had to work to support his wife and three children. As such, Ptaintiff David Shearer
called Defendant Corrine Augustine Nichols Hill Shearer on a daily basis, usually in the late
go down to
aftemoon, to get updates on his father's condition. Plaintiff David Shearer was able to
Houston to visit with and see his father John Shearer in late November,2009.
Page 3
Plaintiffs David Shearer's Second Amended Petition
10. After David Shearer returned to his home, he was informed by Defendant Corrine
Augustine Nichols Hill Shearer that his father's health had improved. Almost daily, David Shearer
spoke to Defendant to check on his father's health and was informed by Defendant that his father's
health was either improving or no worse than when David Shearer was in Houston to see him.
I 1. Around I l:00 a.m. on December 8,2009, however, Defendant Corrine Augustine
Nichols Hill Shearer, having fraudulently informed doctors that she was John Shearer's wife,
inexplicably ordered that all "care be withdrawn" from John Shearer, including all antibiotics and
nutritional support, and requested that she be "notified when the patient dies." Additionally, as noted
by Dr. Subramanian in the medical records, "the patient's wife, Ms. Corinne Shearer. . . . decided
to make her husband, DNR." Under the belief that Defendant was in fact John Shearer's wife, the
doctors obeyed Defendant's orders and withdrew all care from John Shearer, including: (l) a
ventilator, (2) all antibiotics, and (3) all nutritional support. All care was withdrawn from John
Shearer by 3:48 p.m on December 8,2009. Pursuant to his usual routine, Plaintiff David Shearer
called Defendant Corrine Augustine Nichols Hill Shearer around 6:00 p.m. on December 8,2009
to check on his dad's well-being. During that conversation, Defendant Corrine Augustine Nichols
Hill Shearer failed to mention that she had ordered all life sustaining care be withdrawn from his
father earlier that day. As a result, John Shearer died alone, without the comfort of his son, David
Shearer, at4:00 a.m. onDecember g,2009.Around 8:00 a.m. onDecemberg,2009,AngelaShearer,
David Shearer's wife, was informed by Defendant that John Shearer had died. Defendant failed to
mention to Mrs. Shearer that Defendant had ordered all life sustaining medicines and machines
withdrawn from John Shearer or that Defendant ordered a "do not resuscitate" on John Shearer the
day before. Angela Shearer then informed her husband, Plaintiff David Shearer, who was shocked
Page 4
Plaintiffs David Shearer's Second Amended Petition
to hear his father had passed having been told by Defendant that his health was improving. Plaintiff
David Shearer was devastated.
12. On December 9, 2009,the day John Shearer died, without the knowledge or consent
of Plaintiff David Shearer, and still falsely representing to be the wife of John Shearer, Defendant
Conine Augustine Nichols Hill Shearer instructed, without any authority, the hospital to deliver John
Shearer's body to Cremate Texas, Inc. so his body could be cremated. As a result, Plaintiff David
Shearer, never had an opportunity to see his father' s body, nor say goodbye. Pursuant to Defendant's
orders John Shearer's body was cremated.
13. After learning that his father's body was cremated, and before John Shearer's ashes
were sent to Defendant, David Shearer informed Defendant of his intent to take his dad's ashes.
Despite informing Defendant that he wanted his father's ashes, Defendant disposed of John
Shearer's ashes without the knowledge and consent of Plaintiff.
14. Plaintiff David Shearer leamed the horrific news that Defendant had disposed of his
father's ashes from his aunt. Plaintiff David Shearer did not find out that Defendant Corrine
Augustine Nichols Hill Shearer ordered that all life sustaining care be withdrawn from his father
until January of 2010, after requesting a copy of John Shearer's medical records and reviewing
them.
E. CAUSES OF ACTION ON BEHALF OF DAVID SHEARER. AS INDEPENDENT
ADMINISTRATOR OF THE ESTATE OF JOHN WILLIAM SHEARER.III
15. David Shearer, as lndependent Administrator of the Estate of John Shearer brings the
following causes of action for personal injury pursuant to Texas Civil Practices and Remedies Code
$ 71.021 to recover for the mental anguish that John William Shearer, III suffered until his death.
Plaintiffs David Shearer's Second Amended Petition Page 5
I. INVASION OF PRIVACY: INTENTIONAL INTRUSION ON SECLUSION
16. Pursuant to Texas Health and Safety Code section 166.039(b), Defendant Corrine
Augustine Nichols Hill Shearer never had the authority or right to make treatment decisions
concerning John Shearer. Defendant intentionally intruded on John William Shearer, III's private
affairs, namely his decisions regarding the medical care provided to him in the event he became
unable to make those decisions for himself and the people who were supposed to make medical
decisions for him in the event he was unable to make the choices himself, whenDefendant ordered,
without any authority, the physicians at The Michael E. DeBakey VA Medical Center to withdraw
all care, including a ventilator, antibiotics and nutritional support from John Shearer and ordered
physicians to not resuscitate John Shearer. Defendant Corrine Augustine Nichols Hill Shearer was
not married to John Shearer at the time of his death, was not his legal guardian and did not have a
medical power of attorney. Accordingly, Defendant Corrine Augustine Nichols Hill Shearer did not
have the legal authority to make medical decisions for John shearer.
17. Under Texas law, Plaintiff David Shearer had the authority to make medical
treatment decisions for John William Shearer, III. Texas Health & Safety Code $ 166.039(b).
18. Defendant's intrusion into John Shearer's private affairs, namely his decisions
regarding the medical care provided to him in the event he became unable to make those decisions
for himself and the people who were supposed to make medical decisions for him in the event he
was unable to make the choices himself, would be highly offensive to a reasonable person.
lg. Defendant's intentional intrusion on John Shearer's private matters caused injuries
to John Shearer by preventing John's children from being with him during his final days/trours.
Plaintiffs David Shearer's Second Amended Petition Page 6
F. INDEPENDENT CAUSES OF AçTION ON BEHALF OF DAYID SHEARER
20. Defendant intentionally intruded on David Shearer's private affairs, namely the
medical treatment decisions regarding his father, i.e., whether to withdraw or maintain life support
for his father, John Shearer and whether to order a DNR, when Defendant ordered, without any
authority, the physicians at The Michael E. DeBakey VA Medical Center to withdraw all care,
including a ventilator, antibiotics and nutritional support from John Shearer, and ordered physicians
to not resuscitate John Shearer. Defendant Corrine Augustine Nichols Hill Shearer was not married
to John Shearer at the time of his death, was not his legal guardian and did not have a medical power
of attorney. Accordingly, Defendant Corrine Augustine Nichols Hill Shearer did not have the legal
authority to make medical decisions for John Shearer.
21. Under Texas law, Plaintiff David Shearer had the authonty to make medical
treatment decisions for John Shearer. Tex. Health & Safety Code $ 166.039(b).
22. Defendant's intrusion into Plaintifls private affairs, namely the decisions whether
to withdraw or maintain life support for his father, John Shearer, and whether to order a DNR, would
be highly offensive to a reasonable person.
23. Defendant's wrongful acts caused injuries to Plaintiff which resulted in the
following damages, severe mental anguish.
II. BREACH OF FIDUCIARY DUTY
24. Plaintiff David Shearer put his trust and confidence in Defendant. Specifically,
plaintiff called Defendant on a daily basis to check up and get an update on his father's condition'
plaintifftrusted that Defendant would accurately inform them ofthe medical condition of his father
Page 7
PlaintifPs David Shearer's Second Amended Petition
and inform him, if the time ever came, that Plaintiff had to make a decision whether or not to have
doctors withdraw life sustaining medicines and machines from his father.
25. Defendant breached this fiduciary relationship by: (1) intentionally misrepresenting
John Shearer,s medical condition to Plaintift (2) usurping Plaintiff s right to make medical decisions
for his father, (3) failing to inform Plaintiff that she had ordered, without any authority, all life
sustaining medicines and machines be withdrawn from John Shearer,(4) failing to inform Plaintiff
that his father was dying after inexplicably ordering all life sustaining medicines and machines be
withdrawn from John Shearer, (5) and failing to inform Plaintiffthat Defendant was intentionally
misrepresenting herself to be the wife of John Shearer.
26 . Defendant' s breach of fiduciary duty proximately caused inj ury to Plaintiff, including
severe mental anguish. Moreover, Defendant's breach of duty benefitted Defendant as Defendant
(l) had the opportunity to say her goodbye's to John Shearer, (2) had the opportunity to dispose of
John Shearer's ashes as she deemed fit, and (3) seized John Shearer's business assets after declaring
a landlord's lien for failure to pay rent on the property John Shearer rented from Defendant. lndeed,
placing
Defendant gave "notice" to John Shearer to remove his business assets and pay back rent by
a notice on the desk of John Shearer AFTER his death.
III. CONVERSION OF JOHN WILLIAM SHEARER.III'S ASHES
27. After the death of his father, Plaintiff David Shearer had the right to the immediate
possession of his father's body, including his ashes. Due to Defendant's intentional
misrepresentations that she was John Shearer's wife, Defendant wrongfully acquired possession
of
John Shearer's body and later, his ashes.
Page 8
Plaintiffs David Shearer's Second Amended Petition
28. Without any authority or right, Defendant Corrine Augustine Nichols Hill Shearer
wrongfully exercised dominion and control over John Shearer's body, and later, his ashes. ln fact,
Defendant intentionally disposed of John Shearer's ashes, without informing Plaintiffshe was going
to do so, and knowing that Plaintiff wanted his father's ashes.
29 . Defendant Corrine Augustine Nichols Hill Shearer's conduct caused Plaintiff injury,
specifically the loss of the intrinsic value of their father's ashes.
IV. INTENTIqNAL INFLICTION OF EMOTIONAL DISTRESS
30. Plaintiff s claims for intentional infliction of emotional distress are based on two
separate and distinct actions of Defendant Corrine Augustine Nichols Hill Shearer. Plaintiffls first
claim for intentional infliction of emotional distress is premised on Defendant's action of
intentionally and knowingly usurping Plaintiff s authority and right to make medical treatment
decisions for their fathe4 subsequently failing to inform them that Defendant had ordered all life
sustaining medicines and machines withdrawn from their father, and thus taking away Plaintiff s
ability to be with his father during his final hours, and consequently causing his father to pass away
alone. Plaintifls second claim for intentional infliction of emotional distress is premised on
Defendant's act of disposing of John Shearer's ashes without the consent or knowledge of Plaintiff
and directly contrary to Plaintiffs wishes that were known by Defendant.
31. Defendant Corrine Augustine Nichols Hill Shearer acted intentionally and/or
recklessly when she instructed, without any authority or right, the physicians at The Michael E.
DeBakey VA Medical Center to withdraw all life sustaining medicines and machines from John
Shearer, instructed the physicians not resuscitate John Shearer, concealed the fact that she had made
Plaintiff s David Shearer's Second Amended Petition Page9
such orders to the physicians from
plaintiff on December 8,2009,and thus intentionally eliminated
any chance that Plaintiff be with his father during his final hours.
without
32. Defendant Corrine Augustine Nichols Hill Shearer's conduct in instructing,
VA Medical Center to withdraw
any authority or right, the physicians at The Michael E. DeBakey
all life sustaining medicines and machines from John Shearer, instructing the physicians not
orders to the
resuscitate John Shearer, intentionally concealing the factthat she had made such
that
physicians from plaintiff on December 8, 2009, and thus intentionally eliminated any chance
plaintiffbe with his father during his final hours, was extreme and outrageous and this conduct by
Defendant proximately caused the Plaintiff severe emotional distress in the past, and
will likely
continue well into the future.
33. Additionally, Defendant Corrine Augustine Nichols Hill Shearer acted intentionally
and/or recklessly when she disposed, without any right or authority, the ashes of John Shearer
without the consent or knowledge of Plaintiff.
34. Defendant Corrine Augustine Nichols Hill Shearer's conduct in disposing of John
Shearer, s ashes without the knowledge and consent of Plaintiff was extreme and outrageous and this
conduct by Defendant proximately caused the Plaintiff severe emotional distress in the
past, and will
likely continue well into the future.
G. DAMAGES
35. plaintiff David Shearer sues for the mental anguish he has suffered as the result of
the conduct of Defendant Corrine Augustine Nichols Hill Shearer'
Page l0
Plaintiffs David Shearer's Second Amended Petition
H. EXEMPLARY DAMAGES
36. The conduct of Defendant as alleged herein is of such character as to make said
Defendant liable to David Shearer, Individually and as the Independent Administrator of the Estate
of John William Shearer, III, for exemplary damages. The conduct of said Defendant was done
with
malice and/or in heedless and reckless disregard of the rights of the Plaintiff David Shearer,
Individually and as the Independent Administrator of the Estate of John V/illiam Shearer, III, and
involved such an entire want of care as to indicate that it was a result of conscious indifference to
the rights, welfare and safety of Plaintiff. Plaintiff seeks exempl ary damages, pursuant to T¡x. Crv.
pnac. & R¡rr¿. Coop $a1.003(a) (2), insuch an amount as may be found to be proper under the facts
plaintiff specifically pleads the applicability of TBx. Crv. Pnac. & REtr't. CooB
and circumstances.
$ a1.008(c)(1), (4), (7).
I. DOCUMENTS TO BE USED
37. pursuant to Tpx. R. Crv. P. lg3.7,Plaintiff intend to use all documents exchanged
and produced between the parties, including, but not limited to, correspondence and discovery
responses during the trial of the above-entitled and numbered cause.
J. JURY DEMAND
38. Plaintiff hereby demands a jury for the final trial of this matter.
Page l1
Plaintiffs David Shearer's Second Amended Petition
K. PRAYER
WHEREFORE, pREMISES CON SIDERED, Plaintiff requests that Defendant C ORRINE
trial
AUGUSTINE NICHOLS HILL SHEARER be cited to appear and answer, and that on final
Plaintiff have:
a. Judgment against Defendant in a sum in excess ofthe minimumjurisdictional
limits of the Court;
b. ExemPlarY damages;
c. Pre-judgment and post-judgment interest as provided by law;
d. Costs of court; and
e. Such other and further relief to which Plaintiff may be justþ entitled.
lly submitted,
Respectfu
SroAN, BecleY, HercnBn & PBnnv Law Fnu
State BarN
101 East Whaley Street
P. O. Drawer 2909
Longview, Texas 75606
Telephone: (903) 757-7000
Facsimile: (903) 757-7574
ATTORNEY FOR PLAINTIFF DAVID SHEARER
Page 12
Plaintiffs David Shearer's Second Amended Petition
CERTIFICATE OF SERVTqE
The undersigned hereby certifies that atrue and correct copy of the foregoing has been
served on the following via United States-Çgrtified Mail Return Receipt Requested pursuant to
the Texas Rules of Civil Procedure this [Eay of March 2014:
Mr. J. Chad Parker
The Parker Firm, P.C.
3808 Old Jacksonville Road
Tyler, Texas 75701
Plaintiffs David Shearer's Second Amended Petition Page 13
Plaintiffs Demonstrative Exhibit 1
Date Time Duration From To
Nov. 3 2:00 PM 0:00 John David
2:02 PM 1:14 John David
3:50 PM 6:24 David John
Nov. 4 2:31 PM :25 David John
2:42 PM 0:00 John David
2:42 PM 1:33 John David
2:46 PM 14:10 David John
5:29 PM 3:03 John David
Nov. 5 1:02 PM 9:50 David John
Nov. 6 6:52 AM 0:00 Corrine David
6:53 AM 1:14 Corrine David
8:11 AM 11:20 David John
1:23 PM 7:05 Corrine David
4:56 PM 12:52 David Corrine
Nov. 7 10:56 AM 6:56 Corrine David
Nov. 8 12:59 PM 1:18 Corrine David
1:14 PM :27 David Corrine
2:19 PM 9:12 Corrine David
Nov. 9 3:40 PM 5:59 David Corrine
Nov. 10 10:07 AM 2:20 David Corrine
Nov. 11 2:48 PM 21:56 David Corrine
Nov. 12 2:54 PM :34 David Corrine
3:22 PM 0:00 Corrine David
3:22 PM 0:00 Corrine David
3:31 PM 0:00 Corrine David
3:32 AM 11:00 David Corrine
3:33 PM 1:32 Corrine David
Nov. 13 3:59 PM 3:25 David Corrine
Nov. 14 2:31 PM 4:58 David Corrine
Nov. 15
Nov. 16 10:04 AM 1:35 David Corrine
10:06 AM 5:29 David Corrine
Nov. 17 3:05 PM 8:48 David Corrine
Nov. 18
Nov. 19
Nov. 20 8:04 AM 9:55 David Corrine
Nov. 21
Nov. 22
Nov. 23 4:25 PM :26 David Corrine
Nov. 24 5:05 PM 9:57 David Corrine
Nov. 25 3:45 PM 11:00 David Corrine
Nov. 26
Nov. 27 11:42 AM 6:57 David Corrine
Nov. 28 9:39 AM :46 David Corrine
5:31 PM 0:00 Corrine David
5:32 PM :42 Corrine David
5:34 PM :32 David Corrine
6:00 PM :24 David Corrine
Nov. 29 11:07 AM 0:00 Corrine David
11:08 AM 3:58 David Corrine
11:09 AM 2:13 Corrine David
Nov. 30 11:39 AM 6:09 David Corrine
Dec. 1 3:47 PM 12:10 David Corrine
Dec. 2 3:38 PM :11 David Corrine
3:52 PM 3:25 David Corrine
Dec. 3 4:38 PM 11:31 David Corrine
Dec. 4 4:49 PM :19 David Corrine
Dec. 5 11:10 AM 4:36 David Corrine
Dec. 6 3:01 PM :11 David Corrine
6:23 PM :21 David Corrine
Dec. 7 5:00 PM :20 David Corrine
7:24 PM :39 Corrine David
7:26 PM 1:59 Corrine David
7:26 PM 11:28 David Corrine
Dec. 8 5:33 PM :06 David Corrine
6:00 PM 0:00 Corrine David
6:01 PM 6:31 David Corrine
6:02 PM 1:13 Corrine David
Dec. 9 8:25 AM :26 Corrine David
Tex. R. Civ. P. 272
Tex. R. Civ. P. 272
Rule 272 Requisites
The charge shall be in writing, signed by the court, and filed with the clerk,
and shall be a part of the record of the cause. It shall be submitted to the
respective parties or their attorneys for their inspection, and a reasonable
time given them in which to examine and present objections thereto
outside the presence of the jury, which objections shall in every instance be
presented to the court in writing, or be dictated to the court reporter in the
presence of the court and opposing counsel, before the charge is read to the
jury. All objections not so presented shall be considered as waived. The
court shall announce its rulings thereon before reading the charge to the
jury and shall endorse the rulings on the objections if written or dictate
same to the court reporter in the presence of counsel. Objections to the
charge and the court's rulings thereon may be included as a part of any
transcript or statement of facts on appeal and, when so included in either,
shall constitute a sufficient bill of exception to the rulings of the court
thereon. It shall be presumed, unless otherwise noted in the record, that the
party making such objections presented the same at the proper time and
excepted to the ruling thereon.
Tex. R. Civ. P. 274
Tex. R. Civ. P. 274
Rule 274 Objections and Requests
A party objecting to a charge must point out distinctly the objectionable
matter and the grounds of the objection. Any complaint as to a question,
definition, or instruction, on account of any defect, omission, or fault in
pleading, is waived unless specifically included in the objections. When the
complaining party's objection, or requested question, definition, or
instruction is, in the opinion of the appellate court, obscured or concealed
by voluminous unfounded objections, minute differentiations or numerous
unnecessary requests, such objection or request shall be untenable. No
objection to one part of the charge may be adopted and applied to any
other part of the charge by reference only.
Tex. R. Civ. P. 278
Tex. R. Civ. P. 278
Rule 278 Submission of Questions, Definitions, and Instructions
The court shall submit the questions, instructions and definitions in the
form provided by Rule 277, which are raised by the written pleadings and
the evidence. Except in trespass to try title, statutory partition proceedings,
and other special proceedings in which the pleadings are specially defined
by statutes or procedural rules, a party shall not be entitled to any
submission of any question raised only by a general denial and not raised
by affirmative written pleading by that party. Nothing herein shall change
the burden of proof from what it would have been under a general denial.
A judgment shall not be reversed because of the failure to submit other and
various phases or different shades of the same question. Failure to submit a
question shall not be deemed a ground for reversal of the judgment, unless
its submission, in substantially correct wording, has been requested in
writing and tendered by the party complaining of the judgment; provided,
however, that objection to such failure shall suffice in such respect if the
question is one relied upon by the opposing party. Failure to submit a
definition or instruction shall not be deemed a ground for reversal of the
judgment unless a substantially correct definition or instruction has been
requested in writing and tendered by the party complaining of the
judgment.
Tex. R. Civ. P. 279
Tex. R. Civ. P. 279
Rule 279 Omissions from the Charge
Upon appeal all independent grounds of recovery or of defense not
conclusively established under the evidence and no element of which is
submitted or requested are waived. When a ground of recovery or defense
consists of more than one element, if one or more of such elements
necessary to sustain such ground of recovery or defense, and necessarily
referable thereto, are submitted to and found by the jury, and one or more
of such elements are omitted from the charge, without request or objection,
and there is factually sufficient evidence to support a finding thereon, the
trial court, at the request of either party, may after notice and hearing and
at any time before the judgment is rendered, make and file written findings
on such omitted element or elements in support of the judgment. If no such
written findings are made, such omitted element or elements shall be
deemed found by the court in such manner as to support the judgment. A
claim that the evidence was legally or factually insufficient to warrant the
submission of any question may be made for the first time after verdict,
regardless of whether the submission of such question was requested by
the complainant.
Tex. Health & Safety Code § 166.039
Tex. Health & Safety Code § 166.039
§ 166.039. Procedure When Person Has Not Executed or Issued a
Directive and Is Incompetent or Incapable of Communication
*****
(b) If the patient does not have a legal guardian or an agent under a
medical power of attorney, the attending physician and one person, if
available, from one of the following categories, in the following priority,
may make a treatment decision that may include a decision to withhold or
withdraw life-sustaining treatment:
(1) the patient’s spouse;
(2) the patient’s reasonably available adult children;
(3) the patient’s parents; or
(4) the patient’s nearest living relative.
*****
Tex. Health & Safety Code § 711.002
Tex. Health & Safety Code § 711.002
§ 711.002. Disposition of Remains; Duty to Inter
(a) Except as provided by Subsection (l), unless a decedent has left
directions in writing for the disposition of the decedent's remains as
provided in Subsection (g), the following persons, in the priority listed,
have the right to control the disposition, including cremation, of the
decedent's remains, shall inter the remains, and are liable for the
reasonable cost of interment:
(1) the person designated in a written instrument signed by the
decedent;
(2) the decedent's surviving spouse;
(3) any one of the decedent's surviving adult children;
(4) either one of the decedent's surviving parents;
(5) any one of the decedent's surviving adult siblings; or
(6) any adult person in the next degree of kinship in the order named
by law to inherit the estate of the decedent.
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