Corrine Augustine Nichols Hill Shearer v. David Shearer, Individually and as Independent Administrator of the Estate of John William Shearer, III
This text of Corrine Augustine Nichols Hill Shearer v. David Shearer, Individually and as Independent Administrator of the Estate of John William Shearer, III (Corrine Augustine Nichols Hill Shearer v. David Shearer, Individually and as Independent Administrator of the Estate of John William Shearer, III) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
ACCEPTED 12-14-00302-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 3/9/2015 2:47:54 PM CATHY LUSK CLERK
NO. 12-14-00302-CV
IN THE TWELFTH COURT OF APPEALS FILED IN 12th COURT OF APPEALS TYLER, TEXAS TYLER, TEXAS 3/9/2015 2:47:54 PM CORRINE AUGUSTINE NICHOLS HILL SHEARER CATHY S. LUSK Clerk
Appellant
v.
DAVID SHEARER, INDIVIDUALLY AND AS THE INDEPENDENT ADMINISTRATOR OF THE ESTATE OF JOHN WILLIAM SHEARER, III
Appellee
Appeal from the County Court at Law No. 2 Gregg County, Texas
BRIEF FOR APPELLANT
J. CHAD PARKER cparker@theparkerfirm.net Bar Card No: 15489000 FORREST F. MAYS fmays@theparkerfirm.net Bar Card No: 24072228 THE PARKER FIRM, P.C. 3808 Old Jacksonville Rd. Tyler, Texas 75701 (903) 595-4541 - telephone (903) 595-2864 - facsimile
Attorneys for Appellant
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Appellant/Defendant
Corrine Augustine Nichols Hill Shearer
Counsel for Appellant
J. CHAD PARKER Bar Card No: 15489000 FORREST F. MAYS Bar Card No: 24072228 THE PARKER FIRM, P.C. 3808 Old Jacksonville Rd. Tyler, Texas 75701
Attorneys for Appellant Corrine Augustine Nichols Hill Shearer
Appellee/Plaintiff
David Shearer, Individually, and as Independent Administrator of the Estate of John William Shearer, III
Counsel for Appellee
CARSON RUNGE SLOAN, BAGLEY, HATCHER & PERRY 101 East Whaley Street Longview, Texas 75601 State Bar No. 24059262
i TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................................... i
INDEX OF AUTHORITIES .......................................................................................iv-v
STATEMENT OF THE CASE ................................................................................... v-vi
ISSUES PRESENTED ................................................................................................vi
1. Was there legally and factually sufficient evidence that Corrine Shearer owed David Shearer a fiduciary duty?
2. Was Corrine Shearer entitled to a directed verdict on David Shearer’s intentional infliction of emotional distress claim because an alternative tort was available to provide a remedy?
STATEMENT REGARDING ORAL ARGUMENT ........................................................ vii
STATEMENT OF FACTS ....................................................................................... 1–7
A. The Parties’ Relationship ...................... .................................................1–2
B. November - December 2009 ................................................................... 3-4
C. Proceedings in the county court .............................................................. 5-7
SUMMARY OF THE ARGUMENT ........................................................................... 7–8
STANDARD OF REVIEW ....................................................................................... 8–9
ARGUMENT......................................................................................................... 9–22
I. The Informal Fiduciary Relationship
A. When viewing the actualities of the relationship between Corrine Shearer and David Shearer, there was legally insufficient evidence from an objective standpoint that would support the existence of a fiduciary duty. Alternatively, the overwhelming weight of the evidence is to the contrary
ii i. Legal insufficiency
ii. Factual insufficiency
B. There was legally insufficient evidence that David was accustomed to being guided by the judgment or advice of Corrine or that justified his belief that Corrine would act in his best interest. Alternatively, the overwhelming weight of the evidence demonstrated to the contrary and that Corrine only acted in John’s best interest.
i. Legal insufficiency
C. In comparing the relative positions of the parties, there was legally insufficient evidence that Corrine and David lacked equal footing in the relationship. Alternatively, the overwhelming weight of the evidence showed to the contrary.
II. Invasion of privacy tort provided adequate theory of recovery for David Shearer’s mental anguish and should have barred the submission of intentional infliction of emotional distress claim
CONCLUSION AND PRAYER ................................................................................. 22
CERTIFICATE OF COMPLIANCE WITH RULE 9.4(E) ...............................................23
CERTIFICATE OF SERVICE ....................................................................................23
APPENDIX TO BRIEF OF APPELLANT ................................................................... 24
iii INDEX OF AUTHORITIES
Cases
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex.1995) .................................................................... 9
Creditwatch, Inc. v. Jackson, 157 S.W.3d 814 (Tex. 2005) .................................................................18, 19
Gray v. Sangrey, 428 S.W.3d 311 (Tex. App.– Texarkana 2014, pet. denied) ................. 10
Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004) .................................................................. 19
Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex.1983) ..................................................................... 9
Lee v. Hasson, 286 S.W.3d 1 (Tex. App.– Houston [14th Dist.] 2007, pet. denied) ..... 9
Lindley v. McKnight, 349 S.W.3d 113 (Tex. App.–Fort Worth 2011, no pet.) ........................ 9
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex.1997) ................................................................... 9
Meyer v. Cathey, 167 S.W.3d 327 (Tex.2005) .................................................................. 10, 11
Pope v. Darcey, 667 S.W.2d 270 (Tex. App.– Houston [14th Dist.] 1984, writ ref'd n.r.e.) ...................................................................................... 10, 16
Standard Fruit & Veg. Co. v. Johnson, 985 S.W.2d 62 (Tex. 1998) .................................................................... 19
Thigpen v. Locke, iv 363 S.W.2d 247 (Tex.1962) ............................................................ 10, 11, 13
Transp. Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex.1994) ....................................................................... 9
Trostle v. Trostle, 77 S.W.3d 908 (Tex. App. – Amarillo 2002, no pet.) .............................. 13
Vanderpool v.
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ACCEPTED 12-14-00302-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 3/9/2015 2:47:54 PM CATHY LUSK CLERK
NO. 12-14-00302-CV
IN THE TWELFTH COURT OF APPEALS FILED IN 12th COURT OF APPEALS TYLER, TEXAS TYLER, TEXAS 3/9/2015 2:47:54 PM CORRINE AUGUSTINE NICHOLS HILL SHEARER CATHY S. LUSK Clerk
Appellant
v.
DAVID SHEARER, INDIVIDUALLY AND AS THE INDEPENDENT ADMINISTRATOR OF THE ESTATE OF JOHN WILLIAM SHEARER, III
Appellee
Appeal from the County Court at Law No. 2 Gregg County, Texas
BRIEF FOR APPELLANT
J. CHAD PARKER cparker@theparkerfirm.net Bar Card No: 15489000 FORREST F. MAYS fmays@theparkerfirm.net Bar Card No: 24072228 THE PARKER FIRM, P.C. 3808 Old Jacksonville Rd. Tyler, Texas 75701 (903) 595-4541 - telephone (903) 595-2864 - facsimile
Attorneys for Appellant
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Appellant/Defendant
Corrine Augustine Nichols Hill Shearer
Counsel for Appellant
J. CHAD PARKER Bar Card No: 15489000 FORREST F. MAYS Bar Card No: 24072228 THE PARKER FIRM, P.C. 3808 Old Jacksonville Rd. Tyler, Texas 75701
Attorneys for Appellant Corrine Augustine Nichols Hill Shearer
Appellee/Plaintiff
David Shearer, Individually, and as Independent Administrator of the Estate of John William Shearer, III
Counsel for Appellee
CARSON RUNGE SLOAN, BAGLEY, HATCHER & PERRY 101 East Whaley Street Longview, Texas 75601 State Bar No. 24059262
i TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................................... i
INDEX OF AUTHORITIES .......................................................................................iv-v
STATEMENT OF THE CASE ................................................................................... v-vi
ISSUES PRESENTED ................................................................................................vi
1. Was there legally and factually sufficient evidence that Corrine Shearer owed David Shearer a fiduciary duty?
2. Was Corrine Shearer entitled to a directed verdict on David Shearer’s intentional infliction of emotional distress claim because an alternative tort was available to provide a remedy?
STATEMENT REGARDING ORAL ARGUMENT ........................................................ vii
STATEMENT OF FACTS ....................................................................................... 1–7
A. The Parties’ Relationship ...................... .................................................1–2
B. November - December 2009 ................................................................... 3-4
C. Proceedings in the county court .............................................................. 5-7
SUMMARY OF THE ARGUMENT ........................................................................... 7–8
STANDARD OF REVIEW ....................................................................................... 8–9
ARGUMENT......................................................................................................... 9–22
I. The Informal Fiduciary Relationship
A. When viewing the actualities of the relationship between Corrine Shearer and David Shearer, there was legally insufficient evidence from an objective standpoint that would support the existence of a fiduciary duty. Alternatively, the overwhelming weight of the evidence is to the contrary
ii i. Legal insufficiency
ii. Factual insufficiency
B. There was legally insufficient evidence that David was accustomed to being guided by the judgment or advice of Corrine or that justified his belief that Corrine would act in his best interest. Alternatively, the overwhelming weight of the evidence demonstrated to the contrary and that Corrine only acted in John’s best interest.
i. Legal insufficiency
C. In comparing the relative positions of the parties, there was legally insufficient evidence that Corrine and David lacked equal footing in the relationship. Alternatively, the overwhelming weight of the evidence showed to the contrary.
II. Invasion of privacy tort provided adequate theory of recovery for David Shearer’s mental anguish and should have barred the submission of intentional infliction of emotional distress claim
CONCLUSION AND PRAYER ................................................................................. 22
CERTIFICATE OF COMPLIANCE WITH RULE 9.4(E) ...............................................23
CERTIFICATE OF SERVICE ....................................................................................23
APPENDIX TO BRIEF OF APPELLANT ................................................................... 24
iii INDEX OF AUTHORITIES
Cases
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex.1995) .................................................................... 9
Creditwatch, Inc. v. Jackson, 157 S.W.3d 814 (Tex. 2005) .................................................................18, 19
Gray v. Sangrey, 428 S.W.3d 311 (Tex. App.– Texarkana 2014, pet. denied) ................. 10
Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004) .................................................................. 19
Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex.1983) ..................................................................... 9
Lee v. Hasson, 286 S.W.3d 1 (Tex. App.– Houston [14th Dist.] 2007, pet. denied) ..... 9
Lindley v. McKnight, 349 S.W.3d 113 (Tex. App.–Fort Worth 2011, no pet.) ........................ 9
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex.1997) ................................................................... 9
Meyer v. Cathey, 167 S.W.3d 327 (Tex.2005) .................................................................. 10, 11
Pope v. Darcey, 667 S.W.2d 270 (Tex. App.– Houston [14th Dist.] 1984, writ ref'd n.r.e.) ...................................................................................... 10, 16
Standard Fruit & Veg. Co. v. Johnson, 985 S.W.2d 62 (Tex. 1998) .................................................................... 19
Thigpen v. Locke, iv 363 S.W.2d 247 (Tex.1962) ............................................................ 10, 11, 13
Transp. Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex.1994) ....................................................................... 9
Trostle v. Trostle, 77 S.W.3d 908 (Tex. App. – Amarillo 2002, no pet.) .............................. 13
Vanderpool v. Vanderpool, 442 S.W.3d 756 (Tex. App. – Tyler 2014) ............................................. 9–11
Statutes
Texas Health & Safety Code 166.039(b) ............................................... v., 5, 20–21
Tex. Health & Safety Code Section 711.002 ................................................... 20
STATEMENT OF THE CASE
Nature of the case David Shearer sued Corrine Shearer in his individual capacity and as the independent administrator of John Shearer’s estate under multiple theories asserting that Corrine invaded a right personally belonging to him under Texas Health & Safety Code 166.039(b) by ordering a Do-Not Resuscitate order (“DNR”) on his father, John. (CR 62–63) He also asserted a claim, individually, for breach of fiduciary duty on the basis that Corrine owed him a duty and breached it by not advising him that she had entered the DNR on his father. (CR 63–64). David also asserted claims for conversion of John’s ashes and claims of intentional infliction of emotional distress. (CR 64–65). David sought mental anguish damages only, as well as exemplary damages. (CR 66–67).
Trial court County Court at Law No. 2, Gregg County Honorable Vincent Dulweber
v Trial court’s disposition The jury returned a verdict favorable to David Shearer, Individually, on his claims for breach of fiduciary duty and intentional infliction of emotional distress, awarding him mental anguish damages in the amount of $35,000 and $5,000, respectively. (CR 70–84). The jury also unanimously found that Corrine acted with malice in breaching her fiduciary duty. (CR 79, 84). In the bifurcated portion of the trial, the jury unanimously awarded $10,000 in exemplary damages to David. (CR 87, 89). At the close of evidence, Corrine moved for directed verdict on David’s claim for breach of fiduciary duty. (5RR:16–18.) The court denied the directed verdict motion. (5RR:18.) Corrine moved for a directed verdict on the claim for intentional infliction of emotion distress. (5RR:19–21). The court denied the directed verdict motion. (5RR:21). Corrine and David filed various post- trial motions. A hearings were held on the motions and the Court denied Corrine’s motions and granted David’s motion. (6RR:19; 7RR:14; 6RR:21; CR138).
ISSUES PRESENTED
1. Was there legally and factually sufficient evidence that Corrine Shearer owed David Shearer a fiduciary duty?
2. Was Corrine Shearer entitled to a directed verdict on David Shearer’s intentional infliction of emotional distress claim because an alternative tort was available to provide a remedy?
vi. STATEMENT REGARDING ORAL ARGUMENT
Appellant has found no reported or unreported Texas cases during its extensive
research of cases pertaining to informal fiduciary duties that presents facts remotely
analogous to the ones presented for the Court’s consideration in this brief. The lack
of case law addressing unique facts such as these, including the jury’s finding the
existence of a duty, breach and damages in the absence of any identifiable benefit to
the Appellant, makes this a decision that, if allowed to stand, will have far-reaching
consequences that broaden the scope of informal fiduciary duties beyond those
contemplated by law or equity. Appellant believes that oral argument will assist the
Court in evaluating the various legal and public policy concerns underlying this
decision.
vii. STATEMENT OF FACTS
A. The Parties’ Relationship
John William Shearer, III (“John”) and Corrine Augustine Nichols Hill Shearer
(“Corrine”) were ceremonially married September 4, 1990. (4RR:34). They remained
married until they were divorced for financial reasons on February 1, 2008. (4RR:35,
184; 8RR:PX7). They continued to live together until John was hospitalized in
Shreveport on November 2, 2009 and remained hospitalized until his passing on
December 9, 2009. (4RR:35).
David Shearer (“David”) is John’s biological son. (4RR:134). John maintained
a business called Warren City Motors that David joined him in operating in 1991.
(4RR:141). It was expanded to a wrecker service called 271 Wreckers around 1996
and later moved the business to Gladewater where it became Shearer’s Autoplex.
(4RR:141–142). Corrine testified that in 2003 she called a family meeting to confront
David about payments that were being made on David’s truck and “everything else”
from the Shearer’s Autoplex business account. Corrine testified that before this
meeting she was aware that John had authorized the payments but that financial times
were difficult and John wanted David at the business. (4RR:80–81). David testified
that Corrine called the meeting at which time Corrine made accusations against David
that he had been misusing company checks to make some payments (4RR:144– 45).
David testified that John authorized those expenses (4RR:145–146). David left the
1 business in 2005. (4RR:149). David testified that one of the reasons he left was
because “Corrine getting involved in the business made her more aware of what we
did. She didn’t always like the way we did business. You know, we tried to do the
best we could with what we had. When things were down, we tried to do the best we
could. Not always did things seem fair.” (4RR:149–150). Corrine testified that when
David left the business, he left John with “all of it, debt and everything” and that after
that her heart has never been the same. (4RR:81–82).
David also testified that his wife, Angela, was a realtor and worked with
Corrine in real estate. (4RR:147). He testified that, around the same time as the 2003
meeting where David was confronted about the payments from Shearer Autoplex’s
business account, that Corrine told Angela to pack her things and to go to Longview.
(4RR:148–149). He testified that Corrine and Angela’s relationship never recovered
after that. (4RR:149). Corrine testified that in the four or five years before John’s
death, she never went to visit David and Angela. (4RR:129). David testified that after
the 2003 meeting, Corrine did not accompany John to any Christmas holidays at
David’s house . (4RR:153). Corrine testified that John asked her once why she would
not go and Corrine responded “I would rather not get involved in that, John, I don’t
play those games. (4RR:129). David’s attorney then asked Corrine “once you’re done
with somebody, you’re done?”. Corrine responded: “John felt the same way too. He
just wanted to see his grandson.” (4RR:129).
2 B. November - December 2009
John was taken by Corrine to Shreveport VA Hospital on November 2, 2009
and remained hospitalized there until he was flown by helicopter to Houston on
November 5, 2009 for additional treatment. (4RR:43, 50, 91–92). Corrine testified
that she told a social worker at Shreveport VA Hospital that she and John were
divorced. (4RR:44–45; 8RR:PX2-85). The medical record states that Corrine
provided contact information for David Shearer and that the social worker called
David and left him a voice mail that was not returned. (8RR:PX2-85). David testified
that he was aware that he had authority to consult with doctors and certify any DNR
on his father from the social worker and his uncle before his father left Shreveport for
Houston. (4RR:185–186, 211).
After John arrived in Houston, Corrine consented to five different surgeries for
John while he was hospitalized in Houston. (4RR:93, 177). David testified that he did
not have any complaints about Corrine keeping him informed about surgical
procedures that Corrine consented to and was appreciative of the role she played.
(4RR:175, 178). In fact, he testified that he “didn’t even think about it as far as
having somebody there to initiate him to have the surgeries. I just thought they were
taking care of it.” (4RR:175). At trial, David testified that he didn’t know that Corrine
was making any decisions on his father’s behalf while he was hospitalized, but in his
deposition he testified that Corrine was not making any decisions. (4RR:176–177).
3 David testified that he personally visited John once from the time he was
hospitalized in Shreveport until his death on December 9, 2009. (4RR:158–159). He
testified that this was due to several reasons: (1) an accident that occurred a couple
weeks before his father was admitted at the Shreveport VA Hospital in which he had
shot his finger and it had to be amputated (4RR:153–155), (2) his wife being
diagnosed with a brain tumor (4RR:155–156), and having to work a job to provide
for his family. (4RR:155–156).
David testified that he considered himself available to the hospital by phone
from November 2, 2009 until the DNR was declared on his father on December 9,
2009. (4RR:195). David testified that he believed his involvement in decisions
regarding his father had already been established with the hospital before he visited
on November 21, 2009. (4RR:195–196) and that the hospital considered him to be the
authority to make medical decisions for John. (4RR:194). David admitted that, while
he certainly could have, he did not talk to anyone with the hospital either before or
after November 21, 2009 (4RR:190–191, 196). David stated that he “wasn’t the
person that was trying to force my way to take control” and that “all I wanted was
what was best for my dad.” (4RR:191). David admitted that when the Houston VA
certified the DNR they were either ignoring David or based on the prior course of
dealing with treatment decisions made by Corrine on John’s behalf, or that Corrine
was authorized to make those decisions. (4RR:199). Corrine testified that only John’s
4 best interest was in her mind during the entire time he was hospitalized in Houston.
(4RR:122). David testified that he never doubted that everything that Corrine did was
in John’s best interest. (4RR:168). It is not disputed that Corrine did not tell David
that she had entered a DNR on John. (4RR:78, 84).
C. Proceedings in the county court
David sued Corrine in his individual capacity and as the independent
administrator of John’s estate on multiple theories. David asserted a claim for
invasion of privacy, individually and on behalf of the estate, based upon his
contention that Corrine invaded his right by ordering the DNR on John that
personally belonged to David under Texas Health & Safety Code 166.039(b). (CR
62–63). He also asserted a claim, individually, for breach of fiduciary duty on the
basis that Corrine owed him a duty and breached it by not advising him that she had
entered the DNR on his father. (CR 63–64). David asserted claims for conversion of
John’s ashes and claims of intentional infliction of emotional distress. (CR 64–65).
David sought mental anguish damages only, as well as exemplary damages. (CR
66–67).
Before trial, Corrine specially excepted to David’s claim for conversion of
ashes on the grounds that there is no recognized cause of action in Texas for
conversion of ashes. (CR 20–21; 2RR:6–8, 11–12). The court denied the special
exception. (CR 27; 2RR:11). Additionally, Corrine specially excepted to David’s
5 intentional infliction of emotional distress claim. (CR 21–22; 2RR:12–15). The court
denied the special exception. (CR 27; 2RR:14–15).
A jury was empaneled and trial was had. At the close of evidence, Corrine
Shearer moved for a directed verdict on David’s claim for conversion. (5RR:9). The
court granted that motion. (5RR:15–16). Corrine moved for directed verdict on
David’s claim for breach of fiduciary duty claiming that there was no evidence to
support the existence of a duty from Corrine to David. (5RR:16–18.) The court denied
the directed verdict motion. (5RR:18.) Corrine moved for a directed verdict on the
claim for intentional infliction of emotion distress. (5RR:19–21). The court denied
the directed verdict motion. (5RR:21).
The charge was read to the jury and they retired to deliberate. They returned
a verdict favorable to David Shearer, Individually, on his claims for breach of
fiduciary duty and intentional infliction of emotional distress, awarding him mental
anguish damages in the amount of $35,000 and $5,000, respectively. (CR 70–84). The
jury also unanimously found that Corrine acted with malice in breaching her fiduciary
duty. (CR 79, 84). In the bifurcated portion of the trial, the jury unanimously awarded
$10,000 in exemplary damages to David. (CR 87, 89).
After trial, David filed a Motion for Judgment (CR 90) and Corrine timely filed
a Motion to Disregard Certain Jury Findings and for J.N.O.V. that asked the court to
disregard the jury’s findings with respect to Questions 5-8 and 11 (relating to the
6 existence of and breach of fiduciary duty, and exemplary damages) and Questions 9
& 10 (relating to intentional infliction of emotional distress). (CR 124; 6RR:5–12).
A hearing was held on the motions and the Court denied Corrine’s motion and
granted David’s motion. (6RR:19, 21; CR138 ). Corrine then filed her Motion to Set
Aside Judgment and for New Trial and the court held a hearing on the motion. (CR
141; 6RR:4–12). The Court denied Corrine’s motion. (6RR:14). Corrine timely filed
her Notice of Appeal. (CR 147).
SUMMARY OF THE ARGUMENT
There was no legally or factually sufficient evidence that Corrine Shearer owed
David Shearer a fiduciary duty. When viewing the actualities of the relationship
between Corrine and David, there was legally insufficient evidence from an objective
standpoint that would support the existence of a fiduciary duty from Corrine to David.
In fact, the overwhelming weight of the evidence indicated to the contrary. There was
legally insufficient evidence that David was accustomed to receiving judgment or
advice from Corrine or that he was otherwise justified in believing she would act in
the best interest. In fact, the overwhelming weight of the evidence indicated to the
contrary. Finally, when viewing the relative positions of the parties, there was legally
insufficient evidence that a fiduciary relationship existed as a result of Corrine’s
dominance on one side or David’s weakness, dependence, or justifiable trust on the
other. In fact, the overwhelming weight of the evidence indicated to the contrary.
7 Under prevailing law, a directed verdict was proper on David Shearer’s claim
for intentional infliction of emotional distress because another tort provided a remedy
for the mental anguish damages sought and the other tort was among the theories of
recovery submitted in the charge to the jury.
Corrine seeks to have the entirety of the judgment reversed and judgment
rendered in her favor that David take nothing and that all costs be taxed against David
for the county court proceedings and this appeal. Alternatively, Corrine seeks to have
the judgment reversed and remanded to the county court for a new trial on David’s
claim for breach of fiduciary duty.
STANDARD OF REVIEW
The appellate court must sustain a no evidence point of error when (1) the
record discloses a complete absence of evidence of a vital fact; (2) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere
scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact.
Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). More than a scintilla
of evidence exists if the evidence “rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions.” Merrell Dow Pharm., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex.1997); Burroughs Wellcome Co. v. Crye, 907
S.W.2d 497, 499 (Tex.1995); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25
8 (Tex.1994). On the other hand, “[w]hen the evidence offered to prove a vital fact is
so weak as to do no more than create a mere surmise or suspicion of its existence, the
evidence is no more than a scintilla and, in legal effect, is no evidence.” Kindred v.
Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).
In reviewing factual sufficiency, the appellate court considers all the evidence
and will set aside the verdict only if the evidence supporting the jury finding is so
weak or so against the overwhelming weight of the evidence that the finding is clearly
wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).
ARGUMENT
Texas courts are reluctant to recognize a fiduciary relationship because it
requires a person to place someone else's interests above her own. Vanderpool v.
Vanderpool, 442 S.W.3d 756, 765 (Tex. App. – Tyler 2014)(citing Lindley v.
McKnight, 349 S.W.3d 113, 124 (Tex. App.–Fort Worth 2011, no pet.)). The term
“fiduciary” applies to any person who occupies a position of peculiar confidence
towards another, and can arise in formal and informal relationships. Vanderpool, 442
S.W.3d at 765 (citing Lee v. Hasson, 286 S.W.3d 1, 14 (Tex. App.– Houston [14th
Dist.] 2007, pet. denied)). Informal fiduciary relationships, sometimes referred to as
“confidential relationships,” may give rise to a fiduciary duty where one person trusts
in and relies on another, whether the relation is a moral, social, domestic, or purely
9 personal one. Vanderpool, 442 S.W.3d at 765 (citing Thigpen v. Locke, 363 S.W.2d
247, 253 (Tex.1962)). The confidential relationship must exist prior to, and apart
from, the transaction that forms the basis of the lawsuit. Meyer v. Cathey, 167 S.W.3d
327, 331 (Tex.2005). A confidential relationship exists where one person has a
special confidence in another to the extent that the parties do not deal with each other
equally, either because of dominance on one side or weakness, dependence, or
justifiable trust on the other. See Pope v. Darcey, 667 S.W.2d 270, 275 (Tex. App.–
Houston [14th Dist.] 1984, writ ref'd n.r.e.). A familial relationship, while considered
a factor, does not by itself establish a fiduciary relationship. Vanderpool, 442 S.W.3d
at 765 (citing Gray v. Sangrey, 428 S.W.3d 311, 316 (Tex. App.– Texarkana 2014,
pet. denied)).
A. When viewing the actualities of the relationship between Corrine Shearer and David Shearer, there was legally insufficient evidence from an objective standpoint that would support the existence of a fiduciary duty. Alternatively, the overwhelming weight of the evidence is to the contrary.
The existence of an informal fiduciary relationship is generally a question of
fact. . Vanderpool, 442 S.W.3d at 765 (citing Thigpen v. Locke, 363 S.W.2d at 253).
But the issue is a question of law when the facts are undisputed or there is no
evidence to show the existence of an informal fiduciary relationship. Vanderpool, 442
S.W.3d at 765 (citing Meyer v. Cathey, 167 S.W.3d 327, 330–31 (Tex.2005)). To
determine whether a fiduciary relationship exists, courts review the actualities of the
10 relationship between the parties involved. Vanderpool, 442 S.W.3d at 765 (citing
Thigpen, 363 S.W.2d at 253). Not every relationship involving a high degree of trust
and confidence rises to the stature of a fiduciary relationship. Vanderpool, 442
S.W.3d at 765 (citing Meyer, 167 S.W.3d at 330). Moreover, the confidential
relationship must exist prior to, and apart from, the transaction that forms the basis
of the lawsuit. Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex.2005)
Certainly, David will point to evidence that he spoke to Corrine on a daily basis
during the period that John was in the hospitals and that he trusted that she would
provide him with accurate information. Yet this is legally insufficient evidence when
considering the actualities of the relationship that made any trust David maintained
in Corrine purely subjective and unjustifiable. Moreover, legally insufficient
evidence was presented establishing a confidential relationship existing prior to, and
apart from the occurrence or transaction that formed the basis of David’s lawsuit. The
following colloquy is telling of how David’s trust was merely subjective and that the
actualities of the relationship did not objectively support the existence of a fiduciary
duty:
Q: Did you trust that she would accurately report his medical condition to you? A: Yes, sir. Q: Why did you trust that she would do that if you knew that in the past there had been problems. A: The problem between her and I was - - I wouldn’t
11 think that that would be an issue why she wouldn’t tell me about my dad. I didn’t think that problem - - it wasn’t a problem between her and I that would keep her from saying anything about my dad, I wouldn’t think. (4RR:158).
David’s counsel essentially argued to the jury that they should find that the
reason Corrine breached her fiduciary duty was because:
“She never felt right about David since he left the business. Her and David’s wife’s relationship ended in 2003. That, yeah, John would go over there for Christmas, yeah, John would go visit, but did Corrine ever go? No.” (5RR:44).
This argument premises Corrine’s breach of fiduciary duty on the same
evidence that should have prevented the jury from considering whether she owed a
fiduciary duty in the first place.
As detailed above, the overwhelming weight of the evidence demonstrated that
the relationship between Corrine and David had deteriorated to such a degree that
after 2003, Corrine Shearer and David Shearer had little, if anything, to do with one
another. (See supra pp. 1–2). When Corrine was done with someone, she was done
with someone. (4RR:129).
12 B. There was legally insufficient evidence that David was accustomed to being guided by the judgment or advice of Corrine or that justified his belief that Corrine would act in his best interest. Alternatively, the overwhelming weight of the evidence demonstrated to the contrary and that Corrine only acted in John’s best interest.
i. Legal sufficiency
Where one person is accustomed to being guided by the judgment or advice of
another or is justified in believing one will act in the best interest of another because
of a family relationship, a confidential relationship may arise. Thigpen v. Locke, 363
S.W.2d 247, 253 (Tex.1962). As already alluded to, from 2003 onward there is
legally insufficient evidence that David was accustomed to being guided by the
judgment or advice of Corrine. Moreover, there is legally insufficient evidence to
overcome the undisputed evidence showing that the disintegration of the relationship
rendered David’s placement of trust in Corrine to act in his best interest wholly
unjustifiable. See Trostle v. Trostle, 77 S.W.3d 908, 914–15 (Tex. App. – Amarillo
2002, no pet.)(upholding no-evidence summary judgment on existence of informal
fiduciary duty where stepmother failed to tell son that she pursued father’s wrongful
death suit when facts showed that appellant’s wife and appellee had differences and
appellant and appellee did not talk much before father’s death or at funeral).
Much was made by David in trial of a discussion regarding a visit with doctors
about a possible DNR during David’s November 21, 2009 visit and an apparent
13 phone call that shortly followed the visit in which John’s condition was reported to
have experienced a “miraculous recovery” and the “DNR was off the table.” (4RR:14,
61–67). Corrine could not remember whether a meeting took place and, although she
said she “probably” called David the following day (4RR:61–67), the phone records
and David’s own testimony irrefutably demonstrated that no such phone call could
have taken place. (4RR:89–90; 182–183). Thus, there was legally insufficient
evidence tending to suggest that Corrine relayed to David that he had experience a
“miraculous recovery” or that a “DNR was off the table” as argued by David. While
David suggested that “I wasn’t the only one in contact with her. My sister was as
well”, there was no testimony from his sister on this matter and no other legally
sufficient evidence presented to support this contention.
Corrine argues that the court is barred by rules of law or of evidence from
giving weight to this evidence or the evidence offered is no more than a mere
scintilla. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003).
ii. Factual sufficiency
After John arrived in Houston, Corrine consented to five different surgeries for
John while he was hospitalized in Houston. (4RR:93, 177). David testified that he did
not have any complaints about Corrine keeping him informed about surgical
procedures that Corrine consented to. (4RR:175). In fact, he testified that he “didn’t
14 even think about it as far as having somebody there to initiate him to have the
surgeries. I just thought they were taking care of it.” (4RR:175). At trial, David
testified that he didn’t know that Corrine was making any decisions on his father’s
behalf while he was hospitalized, but in his deposition he testified that Corrine was
not making any decisions. (4RR:176–177).
The evidence was undisputed that Corrine made numerous decisions prior to
the DNR being entered that were unknown to David until after his father’s death and
upon which he had no complaint. Corrine testified that only John’s best interest was
in her mind during the entire time he was hospitalized in Houston. (4RR:122). David
testified that he never doubted that everything that Corrine did was in John’s best
interest. (4RR:168). David stated that he “wasn’t the person that was trying to force
my way to take control” and that “all I wanted was what was best for my dad.”
(4RR:191). He also admitted that Corrine made the right decision in entering the
DNR. (4RR:186).
David’s counsel admitted David’s position in the trial on this fact from the
outset:
“We agree, there is no dispute that John Shearer did not want to live on machines. We agree with that. David, not knowing the truth about his dad’s medical condition, agrees it was the right decision to make. We agree with that. This case is about one thing and one thing only. Why she prevented, for no reason, a son who loved his father and a father who loved his son, from saying good-bye when she knew he was dying.” 15 (4RR:17).
The overwhelming weight of the evidence demonstrates that Corrine acted in
John’s best interest and never assumed any duty to act in David’s best interest.
C. In comparing the relative positions of the parties, there was legally insufficient evidence that Corrine and David lacked equal footing in the relationship. Alternatively, the overwhelming weight of the evidence showed to the contrary.
A confidential relationship exists where one person has a special confidence
in another to the extent that the parties do not deal with each other equally, either
because of dominance on one side or weakness, dependence, or justifiable trust on the
other. See Pope v. Darcey, 667 S.W.2d 270, 275 (Tex.App.-Houston [14th Dist.]
1984, writ ref'd n.r.e.). David’s attorney’s argued in closing arguments and at the
hearing on Corrine’s Motion to Disregard Certain Jury Findings and for J.N.O.V. that
“a fiduciary relationship may arise either as a result of dominance on the part of one
or weakness and the dependence on the part of the other [sic].” (6RR: 13). David’s
testimony regarding his injury, Angela’s diagnosis with a tumor, and his
responsibilities to his family rise to no more than a scintilla of evidence that David
experienced a weakness and dependence juxtaposed to a dominance on Corrine’s
part.
16 ii. Factual sufficiency
David testified that he considered himself available to the hospital by phone
from November 2, 2009 until the DNR was declared on his father on December 9,
2009. (4RR:195). David testified that he was aware that he had authority to consult
with doctors and certify any DNR on his father from the social worker and his uncle
before his father left Shreveport for Houston. (4RR:185-186, 211). David admitted
that, while he certainly could have, he did not talk to anyone with the hospital either
before or after November 21, 2009 (4RR:190–191, 196). David stated that he “wasn’t
the person that was trying to force my way to take control” and that “all I wanted was
what was best for my dad.” (4RR:191). David admitted that when the Houston VA
certified the DNR they were either ignoring David or based on the prior course of
dealing with treatment decisions made by Corrine on John’s behalf, or assuming that
Corrine was authorized to make those decisions. (4RR:199). Finally, David testified
that the doctors answered all the questions he had of them on November 21, 2009.
(4RR:224).
David was armed with knowledge prior to John being taken to Houston that he
was apparently the only one authorized to make medical treatment decisions for John.
In a world of modern technology where his access to the doctors and to assert his
desires were a phone call away, the overwhelming weight of the evidence weighs
17 against any inference that David was weak and dependant and unable himself to
represent his own best interests.
II. Invasion of privacy tort provided adequate theory of recovery for David Shearer’s mental anguish and should have barred the submission of intentional infliction of emotional distress claim
Corrine specially excepted to David’s cause of action for conversion of his
father’s ashes. (CR 20–21; 2RR:6–8, 11–12). Although the Court overruled that
special exception during pre-trial (CR 27; 2RR:11), it granted Corrine’s motion for
directed verdict on that cause of action after the close of evidence. (5RR:9, 15–16)1.
Corrine had also specially excepted to David’s cause of action for intentional
infliction of emotional distress on the grounds that there were alternative causes of
action that precluded the IIED claim from operating as a “gap-filler” tort. (CR 21–22;
2RR:12–15). The Court overruled that special exception during pre-trial (CR 27;
2RR:14–15) and denied Corrine’s motion for directed verdict asserted by Corrine on
the same grounds. (5RR:21).
David plead facts in his Third Amended Original Petition that supported
recovery of mental anguish damages under more traditional causes of action.
1 It should be noted that the Court’s granting of the directed verdict appeared to be on grounds that there was no evidence on the damage value to be assigned to John Shearer’s ashes as opposed to the lack of a cause of action for conversion of ashes. However, David never plead any actual damages besides mental anguish damages for any cause of action asserted.
18 (CR65–66). To prove an intentional infliction of emotion distress, the Plaintiff must
establish that no other cause of action would provide a remedy for the severe
emotional distress caused by Defendant’s conduct. See Creditwatch, Inc. v. Jackson,
157 S.W.3d 814, 816 (Tex. 2005); Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d
438, 447 (Tex. 2004). Intentional infliction of emotional distress claims are
considered a “gap-filler” claim because it is only available to a plaintiff that has no
other means of redress. See Hoffman-LaRoche, Inc., 144 S.W.3d at 447 (emphasis
added). A plaintiff can satisfy the burden of proving that he has no other remedy
than by an intentional infliction of emotional distress cause of action by showing that
the defendant inflicted severe emotional distress in a manner so unusual that the
plaintiff has no other recognized means of redress. Id. Where the gravamen of
plaintiff’s complaint is really another tort, intentional infliction of emotional distress
should not be available. Id. If the defendant’s conduct would support an alternative
cause of action, the plaintiff is barred from pursuing an intentional infliction of
emotional distress claim, regardless of whether (1) the plaintiff chooses to bring the
alternative claim, (2) the plaintiff succeeds on the alternative claim, or (3) the
alternative claim is barred. See Creditwatch, 157 S.W.3d at 816; Hoffman-LaRoche,
Inc., 144 S.W.3d at 447–48; Standard Fruit & Veg. Co. v. Johnson, 985 S.W.2d 62,
68 (Tex. 1998).
19 David’s argument during the special exceptions and directed verdict hearings
was the same: that David was vested with “rights to possess and dispose of the
remains. And like - - Mr. Forrest says that right is caused [sic] by the Texas
legislature and Texas Health and Safety Code 711.002 and it lays out the priority.”
(2RR:9–14).
Texas Health & Safety Code § 711.002 provides:
(a) Except as provided by subsection (l), unless a decedent has left direction in writing for the disposition of the decedent’s remains as provided by subsection (g), the following persons, in the priority listed, have the right to control the disposition, including cremation, of the decedents 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.
David incorporated his claims for invasion of privacy under the IIED cause of
action for violations of Texas Health & Safety Code 166.039(b).(CR 65–66).
Texas Health & Safety Code § 166.039(b) provides:
20 (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.
During pre-trial, David argued that, should there be no recognized cause of
action for conversion, that the IIED claim stepped in as a gap-filler. (2RR:13–14). The
court asked Corrine’s counsel if the IIED claim would have been appropriately pled
had David chose not to plead the conversion claim at all. (2RR:14–15). Corrine’s
counsel responded that such a claim could have been plead under the invasion of
privacy claim since it essentially mirrored the same theory underlying the other Texas
Health & Safety Code violations that were plead by David. (2RR:15).
The availability of an IIED claim depends upon the unavailability of a more
traditional tort theory that can provide a means to recovery of mental anguish
damages. The only damages sought by Plaintiff, besides the exemplary damages, were
mental anguish damages and were subject to recovery in the alternative invasion of
privacy claim that David plead and on which a question was submitted to the jury. The
21 Court erred by permitting the IIED claim to survive under these circumstances.
CONCLUSION AND PRAYER
Corrine Shearer has shown that the evidence at trial was legally and factually
insufficient to show that a fiduciary duty existed between Corrine and David Shearer.
Corrine Shearer has shown that David Shearer had an alternative remedy besides an
IIED cause of action to recover mental anguish damages and that alternative remedy
was pled and presented to the jury. Corrine Shearer would ask that the Court reverse
and render judgment on both grounds, that David Shearer take nothing, and that
Corrine Shearer be awarded her costs.
Alternatively, the evidence at trial was factually insufficient to show that a
fiduciary duty existed between Corrine Shearer and David Shearer. Corrine Shearer
would ask that the Court reverse and remand the case to the trial court for a new trial
on David Shearer’s claim for breach of fiduciary duty.
22 CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e)
1. This brief complies with the type-volume limitation of Texas Rule of Appellate Procedure 9.4(e)(i)(2)(B) because, according to the Microsoft Word 2010 word count function, it contains 3,671 words on pages 7-22, excluding the parts of the brief exempted by Texas Rule of Appellate Procedure 9.4(e)(i)(1).
2. This brief complies with the typeface requirements of Texas Rule of Appellate Procedure 9.4(e) because it has been prepared in proportionally spaced typeface using Microsoft Word 2010 software in Times New Roman 14-point font in text and Times New Roman 12-point in footnotes.
/s/ J. Chad Parker J. Chad Parker
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Brief of Appellant Corrine Augustine Nichols Hill Shearer was served by electronic service and/or email to the following counsel of records on March 9, 2015.
Carson Runge SLOAN, BAGLEY, HATCHER & PERRY 101 East Whaley Street Longview, Texas 75601 Via Email
23 NO. 12-14-00302-CV
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
DAVID SHEARER, INDIVIDUALLY AND AS THE INDEPENDENT ADMINISTRATOR OF THE ESTATE OF JOHN WILLIAM SHEARER, III
APPENDIX TO BRIEF OF APPELLANT
Tab 1: Order On Defendant’s Special Exceptions to Plaintiff’s Second Amended Petition
Tab 2: Court’s Charge/Jury Instructions
Tab 3: Court’s Charge/Jury Instructions as to Exemplary Damages
Tab 4: Final Judgment
Tab 5: Order on Defendant’s Motion to Set Aside Judgment and for New Trial
Tab 6: Tex. Health & Safety Code §166.039
Tab 7: Tex. Health & Safety Code §711.002
24 § 166.039. Procedure When Person Has Not Executed or..., TX HEALTH & S §...
Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annos) Title 2. Health Subtitle H. Public Health Provisions Chapter 166. Advance Directives (Refs & Annos) Subchapter B. Directive to Physicians (Refs & Annos)
V.T.C.A., Health & Safety Code § 166.039
§ 166.039. Procedure When Person Has Not Executed or Issued a Directive and Is Incompetent or Incapable of Communication
Currentness
(a) If an adult qualified patient has not executed or issued a directive and is incompetent or otherwise mentally or physically incapable of communication, the attending physician and the patient's legal guardian or an agent under a medical power of attorney may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment from the patient.
(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.
(c) A treatment decision made under Subsection (a) or (b) must be based on knowledge of what the patient would desire, if known.
(d) A treatment decision made under Subsection (b) must be documented in the patient's medical record and signed by the attending physician.
(e) If the patient does not have a legal guardian and a person listed in Subsection (b) is not available, a treatment decision made under Subsection (b) must be concurred in by another physician who is not involved in the treatment of the patient or who is a representative of an ethics or medical committee of the health care facility in which the person is a patient.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 166.039. Procedure When Person Has Not Executed or..., TX HEALTH & S §...
(f) The fact that an adult qualified patient has not executed or issued a directive does not create a presumption that the patient does not want a treatment decision to be made to withhold or withdraw life-sustaining treatment.
(g) A person listed in Subsection (b) who wishes to challenge a treatment decision made under this section must apply for temporary guardianship under Section 875, Texas Probate Code. 1 The court may waive applicable fees in that proceeding.
Credits Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 291, § 3, eff. Jan. 1, 1998. Renumbered from V.T.C.A., Health & Safety Code § 672.009 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff. Sept. 1, 1999.
Editors' Notes
REVISOR'S NOTE
2010 Main Volume
The source law refers to an adult qualified patient who has not “issued a directive.” The revised law substitutes the phrase “executed or issued” because Section 3 of the source law, revised as Sections 672.003-672.005, states that a declarant “executes” a written directive and “issues” a nonwritten directive.
Notes of Decisions (2)
Footnotes 1 Repealed; see, now, V.T.C.A., Estates Code § 1251.001 et seq. V. T. C. A., Health & Safety Code § 166.039, TX HEALTH & S § 166.039 Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 711.002. Disposition of Remains; Duty to Inter, TX HEALTH & S § 711.002
Vernon's Texas Statutes and Codes Annotated Health and Safety Code (Refs & Annos) Title 8. Death and Disposition of the Body (Refs & Annos) Subtitle C. Cemeteries and Crematories (Refs & Annos) Chapter 711. General Provisions Relating to Cemeteries (Refs & Annos) Subchapter A. General Provisions
V.T.C.A., Health & Safety Code § 711.002
§ 711.002. Disposition of Remains; Duty to Inter
Effective: September 1, 2013 Currentness
(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.
(a-1) If the person with the right to control the disposition of the decedent's remains fails to make final arrangements or appoint another person to make final arrangements for the disposition before the earlier of the 6th day after the date the person received notice of the decedent's death or the 10th day after the date the decedent died, the person is presumed to be unable or unwilling to control the disposition, and:
(1) the person's right to control the disposition is terminated; and
(2) the right to control the disposition is passed to the following persons in the following priority:
(A) any other person in the same priority class under Subsection (a) as the person whose right was terminated; or
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 711.002. Disposition of Remains; Duty to Inter, TX HEALTH & S § 711.002
(B) a person in a different priority class, in the priority listed in Subsection (a).
(a-2) If a United States Department of Defense Record of Emergency Data, DD Form 93, or a successor form, was in effect at the time of death for a decedent who died in a manner described by 10 U.S.C. Sections 1481(a)(1) through (8), the DD Form 93 controls over any other written instrument described by Subsection (a)(1) or (g) with respect to designating a person to control the disposition of the decedent's remains. Notwithstanding Subsections (b) and (c), the form is legally sufficient if it is properly completed, signed by the decedent, and witnessed in the manner required by the form.
(b) The written instrument referred to in Subsection (a)(1) shall be in substantially the following form:
I,,......................................................................................................................................................................................................
APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS (your name and address)
being of sound mind, willfully and voluntarily make known my desire that, upon my death,
the disposition of my remains shall be controlled by ..................................................................................................................
(name of agent)
in accordance with Section 711.002 of the Health and Safety Code and, with respect to that subject only, I hereby appoint such person as my agent (attorney-in-fact).
All decisions made by my agent with respect to the disposition of my remains, including cremation, shall be binding.
SPECIAL DIRECTIONS:
Set forth below are any special directions limiting the power granted to my agent:
.........................................................................................................................................................................................................
.........................................................................................................................................................................................................
.........................................................................................................................................................................................................
.........................................................................................................................................................................................................
.........................................................................................................................................................................................................
AGENT:
Name:..............................................................................................................................................................................................
Address:...........................................................................................................................................................................................
Telephone Number:.........................................................................................................................................................................
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Acceptance of Appointment:..........................................................................................................................................................
(signature of agent) Date of Signature:...........................................................................................................................................................................
SUCCESSORS:
If my agent dies, becomes legally disabled, resigns, or refuses to act, I hereby appoint the following persons (each to act alone and successively, in the order named) to serve as my agent (attorney-in-fact) to control the disposition of my remains as authorized by this document:
1. First Successor
Name:..............................................................................................................................................................................................
Address:...........................................................................................................................................................................................
Telephone Number:.........................................................................................................................................................................
Acceptance of Appointment:..........................................................................................................................................................
(signature of first successor)
Date of Signature:...........................................................................................................................................................................
2. Second Successor
Name:..............................................................................................................................................................................................
Address:...........................................................................................................................................................................................
Telephone Number:.........................................................................................................................................................................
Acceptance of Appointment:..........................................................................................................................................................
(signature of second successor)
Date of Signature:...........................................................................................................................................................................
DURATION:
This appointment becomes effective upon my death.
PRIOR APPOINTMENTS REVOKED:
I hereby revoke any prior appointment of any person to control the disposition of my remains.
RELIANCE:
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 § 711.002. Disposition of Remains; Duty to Inter, TX HEALTH & S § 711.002
I hereby agree that any cemetery organization, business operating a crematory or columbarium or both, funeral director or embalmer, or funeral establishment who receives a copy of this document may act under it. Any modification or revocation of this document is not effective as to any such party until that party receives actual notice of the modification or revocation. No such party shall be liable because of reliance on a copy of this document.
ASSUMPTION:
THE AGENT, AND EACH SUCCESSOR AGENT, BY ACCEPTING THIS APPOINTMENT, ASSUMES THE OBLIGATIONS PROVIDED IN, AND IS BOUND BY THE PROVISIONS OF, SECTION 711.002 OF THE HEALTH AND SAFETY CODE.
Signed this _________________ day of __________________________, 19___.
__________________________________ (your signature) State of ____________________
County of ___________________
This document was acknowledged before me on _________________ (date) by _____________________________ (name of principal).
__________________________________ (signature of notarial officer) (Seal, if any, of notary)
_________________________________ (printed name) My commission expires: _________
(c) A written instrument is legally sufficient under Subsection (a)(1) if the wording of the instrument complies substantially with Subsection (b), the instrument is properly completed, the instrument is signed by the decedent, the agent, and each successor agent, and the signature of the decedent is acknowledged. Such written instrument may be modified or revoked only by a subsequent written instrument that complies with this subsection.
(d) A person listed in Subsection (a) has the right, duty, and liability provided by that subsection only if there is no person in a priority listed before the person.
(e) If there is no person with the duty to inter under Subsection (a) and:
(1) an inquest is held, the person conducting the inquest shall inter the remains; and
(2) an inquest is not held, the county in which the death occurred shall inter the remains.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 § 711.002. Disposition of Remains; Duty to Inter, TX HEALTH & S § 711.002
(f) A person who represents that the person knows the identity of a decedent and, in order to procure the disposition, including cremation, of the decedent's remains, signs an order or statement, other than a death certificate, warrants the identity of the decedent and is liable for all damages that result, directly or indirectly, from that warrant.
(g) A person may provide written directions for the disposition, including cremation, of the person's remains in a will, a prepaid funeral contract, or a written instrument signed and acknowledged by such person. The directions may govern the inscription to be placed on a grave marker attached to any plot in which the decedent had the right of sepulture at the time of death and in which plot the decedent is subsequently interred. The directions may be modified or revoked only by a subsequent writing signed and acknowledged by such person. The person otherwise entitled to control the disposition of a decedent's remains under this section shall faithfully carry out the directions of the decedent to the extent that the decedent's estate or the person controlling the disposition are financially able to do so.
(h) If the directions are in a will, they shall be carried out immediately without the necessity of probate. If the will is not probated or is declared invalid for testamentary purposes, the directions are valid to the extent to which they have been acted on in good faith.
(i) A cemetery organization, a business operating a crematory or columbarium or both, a funeral director or an embalmer, or a funeral establishment shall not be liable for carrying out the written directions of a decedent or the directions of any person who represents that the person is entitled to control the disposition of the decedent's remains.
(j) Repealed by Acts 2011, 82nd Leg., ch. 707 (H.B. 549), § 3.
(k) Any dispute among any of the persons listed in Subsection (a) concerning their right to control the disposition, including cremation, of a decedent's remains shall be resolved by a court of competent jurisdiction. A cemetery organization or funeral establishment shall not be liable for refusing to accept the decedent's remains, or to inter or otherwise dispose of the decedent's remains, until it receives a court order or other suitable confirmation that the dispute has been resolved or settled.
(l) A person listed in Subsection (a) may not control the disposition of the decedent's remains if, in connection with the decedent's death, an indictment has been filed charging the person with a crime under Chapter 19, Penal Code, that involves family violence against the decedent.
Credits Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 213, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 634, § 2, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 967, § 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1385, § 1, eff. Aug. 30, 1999; Acts 2011, 82nd Leg., ch. 95 (H.B. 74), § 1, eff. May 20, 2011; Acts 2011, 82nd Leg., ch. 532 (H.B. 2495), § 2, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., ch. 707 (H.B. 549), §§ 1, 3, eff. June 17, 2011; Acts 2011, 82nd Leg., ch. 1336 (S.B. 1167), § 2, eff. Sept. 1, 2011; Acts 2013, 83rd Leg., ch. 161 (S.B. 1093), § 22.001(28), eff. Sept. 1, 2013.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 § 711.002. Disposition of Remains; Duty to Inter, TX HEALTH & S § 711.002
The revised law substitutes “person conducting the inquest” for “coroner.” Under Chapter 49, Code of Criminal Procedure, justices of the peace and medical examiners conduct inquests.
Notes of Decisions (14)
V. T. C. A., Health & Safety Code § 711.002, TX HEALTH & S § 711.002 Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6
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Corrine Augustine Nichols Hill Shearer v. David Shearer, Individually and as Independent Administrator of the Estate of John William Shearer, III, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corrine-augustine-nichols-hill-shearer-v-david-shearer-individually-and-texapp-2015.