McGrede v. Coursey

131 S.W.3d 189, 2004 Tex. App. LEXIS 484, 2004 WL 86137
CourtCourt of Appeals of Texas
DecidedJanuary 21, 2004
DocketNo. 04-02-00063-CV
StatusPublished
Cited by6 cases

This text of 131 S.W.3d 189 (McGrede v. Coursey) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGrede v. Coursey, 131 S.W.3d 189, 2004 Tex. App. LEXIS 484, 2004 WL 86137 (Tex. Ct. App. 2004).

Opinion

OPINION

Opinion by: PAUL W. GREEN, Justice.

This appeal arises from a suit for misapplication or conversion of estate assets against Appellant George McGrede, a pri- or guardian of the estate of Georgia Ruth Hester. Melydia Edge initially brought suit against McGrede in her capacity as successor guardian of the estate. By the time the case went to trial Hester was deceased, and the independent executor of her estate, appellee Melanie Coursey, be[193]*193came the named plaintiff. Following a jury trial, final judgment was rendered in favor of Coursey in the amount of $93,405.42 for the conversion charges and an additional $93,405.42 as exemplary damages for McGrede’s breach of fiduciary duties. McGrede now appeals in five issues.

BACKGROUND

George McGrede began serving as guardian of both the person and the estate of his sister, Georgia Ruth Hester, in September of 1982. In April of 1990, McGre-de was judicially removed from his position, and Hester’s daughter, Melydia Edge, was appointed as successor guardian. Pursuant to the court’s order of removal, McGrede filed an Inventory and Appraisement and a Final Accounting of the estate. Edge filed an objection to the documents, claiming they were incomplete and insufficient. The guardianship proceedings were then transferred from Gregg County to Bexar County in 1991.

Edge filed suit against McGrede in March of 1992, reiterating her objections to the Inventory and Final Accounting filed by McGrede and claiming that McGrede should be held liable for “misappropriation, mismanagement, and/ or conversion” of Hester’s estate, as well as his breach of fiduciary duty to Hester. The case went to trial in January 2001.

The Admission of Testimony REGARDING Bonds and Insurance

In his first issue, McGrede argues the admission of testimony regarding “bond” and “insurance” by the plaintiffs expert witness resulted in reversible error. At trial, Mark Stanton Smith testified as an expert in guardianships and fiduciaries on behalf of Coursey. He was called to explain guardianships and their purpose. He also explained what an inventory is, how it is used to determine the bond, and why a bond is needed in a guardianship situation. During his testimony, Smith talked about bonds and mentioned the words “insurance company” and “bonding company.”

On appeal, McGrede contends this testimony should not have been allowed into evidence and constitutes reversible error. At trial, however, McGrede failed to object to the testimony as required under the Texas Rules of Appellate Procedure.1 Tex.R.App. P. 33.1. In his brief, McGrede argues an objection is not necessary in order to preserve error in this situation and cites several cases he claims support his contention. See Rhoden v. Booth, 344 S.W.2d 481, 487 (Tex.Civ.App.-Dallas 1961, writ refd n.r.e.); Alexander Schroeder Lumber Co. v. Merritt, 323 S.W.2d 163, 165 (Tex.Civ.App.-Texarkana 1959, no writ); Griffith v. Casteel, 313 S.W.2d 149, 157 (Tex.Civ.App.-Houston 1958, writ refd n.r.e.). The trial courts in each of these cases held the lack of objection or request for admonishment at trial did not constitute waiver. However, the trial courts in each situation also found that any curative measure attempted could only have served to accentuate and magnify the prejudicial effects of any argument regarding insurance. See Griffith, 313 S.W.2d at 157.

That is not the situation in this case. Smith’s testimony did not serve as part of an argument involving McGrede’s possession of insurance, but rather stood as a partial explanation of how a guardianship is run and the responsibilities of a guardian. Any curative measure, such as the instruction given to the jury by the court would most likely not have served to accentuate and magnify the prejudicial ef[194]*194fects of the testimony. Therefore, under the rules of appellate procedure, McGrede failed to preserve error by not timely objecting to Smith’s testimony. Tex.R.App. P. 33.1.

Even assuming an objection at trial was not necessary and McGrede did preserve error as to the mention of bonds and insurance, he fails to show that such error was harmful. References to insurance which, when reasonably construed, tend to imply to the jury that the defendant is protected by insurance and will not be required to pay any judgment which may be rendered, are improper. See Moncada v. Snyder, 137 Tex. 112, 152 S.W.2d 1077, 1080 (1941); Springer v. Baggs, 500 S.W.2d 541, 542 (Tex.Civ.App.-Texarkana 1973, writ refd n.r.e.). Although the mention of insurance before a jury is generally disallowed, it is not always reversible error. Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex.1962); Meyers v. Searcy, 488 S.W.2d 509, 514 (Tex.Civ.App.-San Antonio 1972, no writ). The party appealing must show (1) that the reference to insurance probably caused the rendition of an improper judgment in the case; and (2) that the probability that the mention of insurance caused harm exceeds the probability that the verdict was grounded on proper proceedings and evidence. Dennis, 362 S.W.2d at 309; Meyers, 488 S.W.2d at 514; cf. University of Texas v. Hinton, 822 S.W.2d 197, 201 (Tex.App.-Austin 1991, no writ).

In the present case, the probate court gave the jury an instruction to disregard any information regarding either a bonding company or insurance company, specifically instructing them “not to give any thought to the concept of whether there is or is not insurance of any kind involved in this.” In addition, McGrede presents this Court with no evidence showing that Stanton’s testimony probably caused the rendition of an improper judgment. See Dennis, 362 S.W.2d at 309. Issue one is overruled.

Exclusion of Evidence: Successor Guardian’s Failure to Comply with Probate Code

In his second issue, McGrede contends the trial court erred in excluding evidence, on the issue of punitive damages, of either Edge’s or Coursey’s alleged failure to comply with the Probate Code and the Court’s orders during Edge’s administration of the guardianship and probate of the estate. The admission of evidence is a matter within the discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995). A person seeking to reverse a judgment based on evidentiary error need not prove that but for the error a different judgment would necessarily have been rendered, but only that the error probably resulted in an improper judgment. Id.

In Alamo Nat’l Bank v. Kraus, the Texas Supreme Court enumerated the elements which a jury may consider in making an award for exemplary damages. 616 S.W.2d 908, 910 (Tex.1981).

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Bluebook (online)
131 S.W.3d 189, 2004 Tex. App. LEXIS 484, 2004 WL 86137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgrede-v-coursey-texapp-2004.