Corrine Augustine Nichols Hill Shearer v. David Shearer, Individually and as Independent Administrator of the Estate of John William Shearer, III
Opinion
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. Burbage 447 S.W.3d 249 (Tex. 2014) ................................................................... 15, 20
Cain v. Bain 709 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. Hul 237 S.W.2d 256 (Tex. 1951) ......................................................................... 29
Hoffmann‐La Roche, Inc. v. Zeltwanger 144 S.W.3d 438 (Tex. 2004) ................................................................... 38, 41
International Bank, N.A. v. Morales 36 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. Havner 953 S.W.2d 706 (Tex. 1997) ......................................................................... xi
Meyer v. Cathey 167 S.W.3d 327 (Tex. 2005) ................................................................... 31‐32
Mills v. Gray 210 S.W.2d 985 (Tex. 1948) ......................................................................... 30
Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000) ....................................................................... 15, 20
Salinas v. Salinas 365 S.W.3d 318(Tex. 2012) .......................................................................... 15
Schlumberger Tech. Corp. v. Swanson 959 S.W.2d 171 (Tex. 1997) ......................................................................... 32
Sherman v. First Natʹl Bank 760 S.W.2d 240 (Tex. 1988) ........................................................................ xi
Standard Fruit and Vegetable Co. v. Johnson 985 S.W.2d 62 (Tex. 1998) ........................................................................... 38
Tex. Bank & Trust Co.
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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. Burbage 447 S.W.3d 249 (Tex. 2014) ................................................................... 15, 20
Cain v. Bain 709 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. Hul 237 S.W.2d 256 (Tex. 1951) ......................................................................... 29
Hoffmann‐La Roche, Inc. v. Zeltwanger 144 S.W.3d 438 (Tex. 2004) ................................................................... 38, 41
International Bank, N.A. v. Morales 36 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. Havner 953 S.W.2d 706 (Tex. 1997) ......................................................................... xi
Meyer v. Cathey 167 S.W.3d 327 (Tex. 2005) ................................................................... 31‐32
Mills v. Gray 210 S.W.2d 985 (Tex. 1948) ......................................................................... 30
Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000) ....................................................................... 15, 20
Salinas v. Salinas 365 S.W.3d 318(Tex. 2012) .......................................................................... 15
Schlumberger Tech. Corp. v. Swanson 959 S.W.2d 171 (Tex. 1997) ......................................................................... 32
Sherman v. First Natʹl Bank 760 S.W.2d 240 (Tex. 1988) ........................................................................ xi
Standard Fruit and Vegetable Co. v. Johnson 985 S.W.2d 62 (Tex. 1998) ........................................................................... 38
Tex. Bank & Trust Co. 595 S.W.2d 502 (Tex. 1980) ................................................................... 31, 33
Thigpen v. Locke 363 S.W.2d 247 (Tex. 1962) ...................................................... xii, 30, 32, 33
v Valenzuela v. Aquino 853 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. Basham 205 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. Chase 262 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. Cantu 431 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. Turner 622 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. Lesesne 350 S.W.2d 859 (Tex. Civ. App.—San Antonio 1961) ............................ 33
Hunter v. PriceKubecka, PLLC 339 S.W.3d 795 (Tex. App.—Dallas 2011) ............................................... 16
In re Estate of Bean 206 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. Hasson 286 S.W.3d 1 (Tex. App.—Houston [14th Dist.] 2007) .................... 16, 33
Lundy v. Masson 260 S.W.3d 482(Tex. App.—Houston [14th Dist.] 2008) ....................... 16
vii Meek v. Onstad 430 S.W.3d 601(Tex. App.—Houston [14th Dist.] 2014) ....................... 15
Oliva v. Davila 373 S.W.3d 94 (Tex. App.—Dallas 2011) ................................................. 15
Pope v. Darcey 667 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. Ng 167 S.W.3d 842 (Tex. App.—Houston [14th Dist.] 2005) ................ 17, 20
Trostle v. Trostle 77 S.W.3d 908 (Tex. App.—Amarillo 2002) ...................................... 32‐33
Vanderpool v. Vanderpool 442 S.W.3d 756 (Tex. App.—Tyler 2014) ................................................ xii
Young v. Fawcett 376 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
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(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.
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) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.