                                                                              ACCEPTED
                                                                         12-14-00302-CV
                                                             TWELFTH COURT OF APPEALS
                                                                          TYLER, TEXAS
                                                                     3/9/2015 2:47:54 PM
                                                                            CATHY LUSK
                                                                                  CLERK

                       NO. 12-14-00302-CV

                IN THE TWELFTH COURT OF APPEALS         FILED IN
                                                 12th COURT OF APPEALS
                          TYLER, TEXAS                TYLER, TEXAS
                                                  3/9/2015 2:47:54 PM
            CORRINE AUGUSTINE NICHOLS HILL SHEARER CATHY S. LUSK
                                                          Clerk

                                                Appellant

                                v.


DAVID SHEARER, INDIVIDUALLY AND AS THE INDEPENDENT ADMINISTRATOR
            OF THE ESTATE OF JOHN WILLIAM SHEARER, III

                                                Appellee

             Appeal from the County Court at Law No. 2
                       Gregg County, Texas

                      BRIEF FOR APPELLANT

                              J. CHAD PARKER
                              cparker@theparkerfirm.net
                              Bar Card No: 15489000
                              FORREST F. MAYS
                              fmays@theparkerfirm.net
                              Bar Card No: 24072228
                              THE PARKER FIRM, P.C.
                              3808 Old Jacksonville Rd.
                              Tyler, Texas 75701
                              (903) 595-4541 - telephone
                              (903) 595-2864 - facsimile

                              Attorneys for Appellant


                  ORAL ARGUMENT REQUESTED
                       IDENTITY OF PARTIES AND COUNSEL

Appellant/Defendant

      Corrine Augustine Nichols Hill Shearer

Counsel for Appellant

      J. CHAD PARKER
      Bar Card No: 15489000
      FORREST F. MAYS
      Bar Card No: 24072228
      THE PARKER FIRM, P.C.
      3808 Old Jacksonville Rd.
      Tyler, Texas 75701

      Attorneys for Appellant Corrine Augustine Nichols Hill Shearer

Appellee/Plaintiff

      David Shearer, Individually, and as Independent Administrator of the Estate
      of John William Shearer, III

Counsel for Appellee

      CARSON RUNGE
      SLOAN, BAGLEY, HATCHER & PERRY
      101 East Whaley Street
      Longview, Texas 75601
      State Bar No. 24059262




                                        i
                                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................................... i

INDEX OF AUTHORITIES .......................................................................................iv-v

STATEMENT OF THE CASE ................................................................................... v-vi

ISSUES PRESENTED ................................................................................................vi

1.       Was there legally and factually sufficient evidence that Corrine Shearer
         owed David Shearer a fiduciary duty?

2.       Was Corrine Shearer entitled to a directed verdict on David Shearer’s
         intentional infliction of emotional distress claim because an alternative tort
         was available to provide a remedy?

STATEMENT REGARDING ORAL ARGUMENT ........................................................ vii

STATEMENT OF FACTS ....................................................................................... 1–7

A.       The Parties’ Relationship ...................... .................................................1–2

B.       November - December 2009 ................................................................... 3-4

C.       Proceedings in the county court .............................................................. 5-7

SUMMARY OF THE ARGUMENT ........................................................................... 7–8

STANDARD OF REVIEW ....................................................................................... 8–9

ARGUMENT......................................................................................................... 9–22

I.       The Informal Fiduciary Relationship

A.       When viewing the actualities of the relationship between Corrine Shearer
         and David Shearer, there was legally insufficient evidence from an objective
         standpoint that would support the existence of a fiduciary duty.
         Alternatively, the overwhelming weight of the evidence is to the contrary


                                                          ii
                 i.       Legal insufficiency

                 ii.      Factual insufficiency

B.       There was legally insufficient evidence that David was accustomed to
        being guided by the judgment or advice of Corrine or that justified his belief
        that Corrine would act in his best interest. Alternatively, the overwhelming
        weight of the evidence demonstrated to the contrary and that Corrine only
        acted in John’s best interest.

                 i.       Legal insufficiency

                 ii.      Factual insufficiency


C.      In comparing the relative positions of the parties, there was legally
        insufficient evidence that Corrine and David lacked equal footing in the
        relationship. Alternatively, the overwhelming weight of the evidence
        showed to the contrary.

                 i.       Legal insufficiency

                 ii.      Factual insufficiency

II.     Invasion of privacy tort provided adequate theory of recovery for David
        Shearer’s mental anguish and should have barred the submission of
        intentional infliction of emotional distress claim

CONCLUSION AND PRAYER ................................................................................. 22

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(E) ...............................................23

CERTIFICATE OF SERVICE ....................................................................................23

APPENDIX TO BRIEF OF APPELLANT ................................................................... 24




                                                       iii
                                         INDEX OF AUTHORITIES

Cases

Burroughs Wellcome Co. v. Crye,
     907 S.W.2d 497 (Tex.1995) .................................................................... 9

Creditwatch, Inc. v. Jackson,
      157 S.W.3d 814 (Tex. 2005) .................................................................18, 19

Gray v. Sangrey,
      428 S.W.3d 311 (Tex. App.– Texarkana 2014, pet. denied) ................. 10

Hoffman-LaRoche, Inc. v. Zeltwanger,
     144 S.W.3d 438 (Tex. 2004) .................................................................. 19

Kindred v. Con/Chem, Inc.,
     650 S.W.2d 61 (Tex.1983) ..................................................................... 9

Lee v. Hasson,
       286 S.W.3d 1 (Tex. App.– Houston [14th Dist.] 2007, pet. denied) ..... 9

Lindley v. McKnight,
      349 S.W.3d 113 (Tex. App.–Fort Worth 2011, no pet.) ........................ 9

Merrell Dow Pharm., Inc. v. Havner,
     953 S.W.2d 706 (Tex.1997) ................................................................... 9

Meyer v. Cathey,
     167 S.W.3d 327 (Tex.2005) .................................................................. 10, 11

Pope v. Darcey,
      667 S.W.2d 270 (Tex. App.– Houston [14th Dist.] 1984,
      writ ref'd n.r.e.) ...................................................................................... 10, 16


Standard Fruit & Veg. Co. v. Johnson,
      985 S.W.2d 62 (Tex. 1998) .................................................................... 19

Thigpen v. Locke,
                                                          iv
        363 S.W.2d 247 (Tex.1962) ............................................................ 10, 11, 13

Transp. Ins. Co. v. Moriel,
     879 S.W.2d 10 (Tex.1994) ....................................................................... 9

Trostle v. Trostle,
      77 S.W.3d 908 (Tex. App. – Amarillo 2002, no pet.) .............................. 13

Vanderpool v. Vanderpool,
     442 S.W.3d 756 (Tex. App. – Tyler 2014) ............................................. 9–11

Statutes

Texas Health & Safety Code 166.039(b) ............................................... v., 5, 20–21

Tex. Health & Safety Code Section 711.002 ................................................... 20


                                    STATEMENT OF THE CASE

Nature of the case               David Shearer sued Corrine Shearer in his individual
                                 capacity and as the independent administrator of John
                                 Shearer’s estate under multiple theories asserting that
                                 Corrine invaded a right personally belonging to him
                                 under Texas Health & Safety Code 166.039(b) by
                                 ordering a Do-Not Resuscitate order (“DNR”) on his
                                 father, John. (CR 62–63) He also asserted a claim,
                                 individually, for breach of fiduciary duty on the basis
                                 that Corrine owed him a duty and breached it by not
                                 advising him that she had entered the DNR on his father.
                                 (CR 63–64). David also asserted claims for conversion
                                 of John’s ashes and claims of intentional infliction of
                                 emotional distress. (CR 64–65). David sought mental
                                 anguish damages only, as well as exemplary damages.
                                 (CR 66–67).

Trial court                      County Court at Law No. 2, Gregg County
                                 Honorable Vincent Dulweber



                                                     v
Trial court’s disposition The jury returned a verdict favorable to David Shearer,
                          Individually, on his claims for breach of fiduciary duty
                          and intentional infliction of emotional distress, awarding
                          him mental anguish damages in the amount of $35,000
                          and $5,000, respectively. (CR 70–84). The jury also
                          unanimously found that Corrine acted with malice in
                          breaching her fiduciary duty. (CR 79, 84). In the
                          bifurcated portion of the trial, the jury unanimously
                          awarded $10,000 in exemplary damages to David. (CR
                          87, 89). At the close of evidence, Corrine moved for
                          directed verdict on David’s claim for breach of fiduciary
                          duty. (5RR:16–18.) The court denied the directed verdict
                          motion. (5RR:18.) Corrine moved for a directed verdict
                          on the claim for intentional infliction of emotion distress.
                          (5RR:19–21). The court denied the directed verdict
                          motion. (5RR:21). Corrine and David filed various post-
                          trial motions. A hearings were held on the motions and
                          the Court denied Corrine’s motions and granted David’s
                          motion. (6RR:19; 7RR:14; 6RR:21; CR138).


                                ISSUES PRESENTED

1.    Was there legally and factually sufficient evidence that Corrine Shearer
      owed David Shearer a fiduciary duty?

2.    Was Corrine Shearer entitled to a directed verdict on David Shearer’s
      intentional infliction of emotional distress claim because an alternative tort
      was available to provide a remedy?




                                         vi.
                   STATEMENT REGARDING ORAL ARGUMENT

      Appellant has found no reported or unreported Texas cases during its extensive

research of cases pertaining to informal fiduciary duties that presents facts remotely

analogous to the ones presented for the Court’s consideration in this brief. The lack

of case law addressing unique facts such as these, including the jury’s finding the

existence of a duty, breach and damages in the absence of any identifiable benefit to

the Appellant, makes this a decision that, if allowed to stand, will have far-reaching

consequences that broaden the scope of informal fiduciary duties beyond those

contemplated by law or equity. Appellant believes that oral argument will assist the

Court in evaluating the various legal and public policy concerns underlying this

decision.




                                         vii.
                              STATEMENT OF FACTS

A.    The Parties’ Relationship

      John William Shearer, III (“John”) and Corrine Augustine Nichols Hill Shearer

(“Corrine”) were ceremonially married September 4, 1990. (4RR:34). They remained

married until they were divorced for financial reasons on February 1, 2008. (4RR:35,

184; 8RR:PX7). They continued to live together until John was hospitalized in

Shreveport on November 2, 2009 and remained hospitalized until his passing on

December 9, 2009. (4RR:35).

      David Shearer (“David”) is John’s biological son. (4RR:134). John maintained

a business called Warren City Motors that David joined him in operating in 1991.

(4RR:141). It was expanded to a wrecker service called 271 Wreckers around 1996

and later moved the business to Gladewater where it became Shearer’s Autoplex.

(4RR:141–142). Corrine testified that in 2003 she called a family meeting to confront

David about payments that were being made on David’s truck and “everything else”

from the Shearer’s Autoplex business account. Corrine testified that before this

meeting she was aware that John had authorized the payments but that financial times

were difficult and John wanted David at the business. (4RR:80–81). David testified

that Corrine called the meeting at which time Corrine made accusations against David

that he had been misusing company checks to make some payments (4RR:144– 45).

David testified that John authorized those expenses (4RR:145–146). David left the


                                          1
business in 2005. (4RR:149). David testified that one of the reasons he left was

because “Corrine getting involved in the business made her more aware of what we

did. She didn’t always like the way we did business. You know, we tried to do the

best we could with what we had. When things were down, we tried to do the best we

could. Not always did things seem fair.” (4RR:149–150). Corrine testified that when

David left the business, he left John with “all of it, debt and everything” and that after

that her heart has never been the same. (4RR:81–82).

      David also testified that his wife, Angela, was a realtor and worked with

Corrine in real estate. (4RR:147). He testified that, around the same time as the 2003

meeting where David was confronted about the payments from Shearer Autoplex’s

business account, that Corrine told Angela to pack her things and to go to Longview.

(4RR:148–149). He testified that Corrine and Angela’s relationship never recovered

after that. (4RR:149). Corrine testified that in the four or five years before John’s

death, she never went to visit David and Angela. (4RR:129). David testified that after

the 2003 meeting, Corrine did not accompany John to any Christmas holidays at

David’s house . (4RR:153). Corrine testified that John asked her once why she would

not go and Corrine responded “I would rather not get involved in that, John, I don’t

play those games. (4RR:129). David’s attorney then asked Corrine “once you’re done

with somebody, you’re done?”. Corrine responded: “John felt the same way too. He

just wanted to see his grandson.” (4RR:129).


                                            2
B.    November - December 2009

      John was taken by Corrine to Shreveport VA Hospital on November 2, 2009

and remained hospitalized there until he was flown by helicopter to Houston on

November 5, 2009 for additional treatment. (4RR:43, 50, 91–92). Corrine testified

that she told a social worker at Shreveport VA Hospital that she and John were

divorced. (4RR:44–45; 8RR:PX2-85). The medical record states that Corrine

provided contact information for David Shearer and that the social worker called

David and left him a voice mail that was not returned. (8RR:PX2-85). David testified

that he was aware that he had authority to consult with doctors and certify any DNR

on his father from the social worker and his uncle before his father left Shreveport for

Houston. (4RR:185–186, 211).

      After John arrived in Houston, Corrine consented to five different surgeries for

John while he was hospitalized in Houston. (4RR:93, 177). David testified that he did

not have any complaints about Corrine keeping him informed about surgical

procedures that Corrine consented to and was appreciative of the role she played.

(4RR:175, 178). In fact, he testified that he “didn’t even think about it as far as

having somebody there to initiate him to have the surgeries. I just thought they were

taking care of it.” (4RR:175). At trial, David testified that he didn’t know that Corrine

was making any decisions on his father’s behalf while he was hospitalized, but in his

deposition he testified that Corrine was not making any decisions. (4RR:176–177).


                                           3
      David testified that he personally visited John once from the time he was

hospitalized in Shreveport until his death on December 9, 2009. (4RR:158–159). He

testified that this was due to several reasons: (1) an accident that occurred a couple

weeks before his father was admitted at the Shreveport VA Hospital in which he had

shot his finger and it had to be amputated (4RR:153–155), (2) his wife being

diagnosed with a brain tumor (4RR:155–156), and having to work a job to provide

for his family. (4RR:155–156).

      David testified that he considered himself available to the hospital by phone

from November 2, 2009 until the DNR was declared on his father on December 9,

2009. (4RR:195). David testified that he believed his involvement in decisions

regarding his father had already been established with the hospital before he visited

on November 21, 2009. (4RR:195–196) and that the hospital considered him to be the

authority to make medical decisions for John. (4RR:194). David admitted that, while

he certainly could have, he did not talk to anyone with the hospital either before or

after November 21, 2009 (4RR:190–191, 196). David stated that he “wasn’t the

person that was trying to force my way to take control” and that “all I wanted was

what was best for my dad.” (4RR:191). David admitted that when the Houston VA

certified the DNR they were either ignoring David or based on the prior course of

dealing with treatment decisions made by Corrine on John’s behalf, or that Corrine

was authorized to make those decisions. (4RR:199). Corrine testified that only John’s


                                          4
best interest was in her mind during the entire time he was hospitalized in Houston.

(4RR:122). David testified that he never doubted that everything that Corrine did was

in John’s best interest. (4RR:168). It is not disputed that Corrine did not tell David

that she had entered a DNR on John. (4RR:78, 84).

C.    Proceedings in the county court

      David sued Corrine in his individual capacity and as the independent

administrator of John’s estate on multiple theories. David asserted a claim for

invasion of privacy, individually and on behalf of the estate, based upon his

contention that Corrine invaded his right by ordering the DNR on John that

personally belonged to David under Texas Health & Safety Code 166.039(b). (CR

62–63). He also asserted a claim, individually, for breach of fiduciary duty on the

basis that Corrine owed him a duty and breached it by not advising him that she had

entered the DNR on his father. (CR 63–64). David asserted claims for conversion of

John’s ashes and claims of intentional infliction of emotional distress. (CR 64–65).

David sought mental anguish damages only, as well as exemplary damages. (CR

66–67).

      Before trial, Corrine specially excepted to David’s claim for conversion of

ashes on the grounds that there is no recognized cause of action in Texas for

conversion of ashes. (CR 20–21; 2RR:6–8, 11–12). The court denied the special

exception. (CR 27; 2RR:11). Additionally, Corrine specially excepted to David’s


                                          5
intentional infliction of emotional distress claim. (CR 21–22; 2RR:12–15). The court

denied the special exception. (CR 27; 2RR:14–15).

      A jury was empaneled and trial was had. At the close of evidence, Corrine

Shearer moved for a directed verdict on David’s claim for conversion. (5RR:9). The

court granted that motion. (5RR:15–16). Corrine moved for directed verdict on

David’s claim for breach of fiduciary duty claiming that there was no evidence to

support the existence of a duty from Corrine to David. (5RR:16–18.) The court denied

the directed verdict motion. (5RR:18.) Corrine moved for a directed verdict on the

claim for intentional infliction of emotion distress. (5RR:19–21). The court denied

the directed verdict motion. (5RR:21).

      The charge was read to the jury and they retired to deliberate. They returned

a verdict favorable to David Shearer, Individually, on his claims for breach of

fiduciary duty and intentional infliction of emotional distress, awarding him mental

anguish damages in the amount of $35,000 and $5,000, respectively. (CR 70–84). The

jury also unanimously found that Corrine acted with malice in breaching her fiduciary

duty. (CR 79, 84). In the bifurcated portion of the trial, the jury unanimously awarded

$10,000 in exemplary damages to David. (CR 87, 89).

      After trial, David filed a Motion for Judgment (CR 90) and Corrine timely filed

a Motion to Disregard Certain Jury Findings and for J.N.O.V. that asked the court to

disregard the jury’s findings with respect to Questions 5-8 and 11 (relating to the


                                          6
existence of and breach of fiduciary duty, and exemplary damages) and Questions 9

& 10 (relating to intentional infliction of emotional distress). (CR 124; 6RR:5–12).

A hearing was held on the motions and the Court denied Corrine’s motion and

granted David’s motion. (6RR:19, 21; CR138 ). Corrine then filed her Motion to Set

Aside Judgment and for New Trial and the court held a hearing on the motion. (CR

141; 6RR:4–12). The Court denied Corrine’s motion. (6RR:14). Corrine timely filed

her Notice of Appeal. (CR 147).

                           SUMMARY OF THE ARGUMENT

      There was no legally or factually sufficient evidence that Corrine Shearer owed

David Shearer a fiduciary duty. When viewing the actualities of the relationship

between Corrine and David, there was legally insufficient evidence from an objective

standpoint that would support the existence of a fiduciary duty from Corrine to David.

In fact, the overwhelming weight of the evidence indicated to the contrary. There was

legally insufficient evidence that David was accustomed to receiving judgment or

advice from Corrine or that he was otherwise justified in believing she would act in

the best interest. In fact, the overwhelming weight of the evidence indicated to the

contrary. Finally, when viewing the relative positions of the parties, there was legally

insufficient evidence that a fiduciary relationship existed as a result of Corrine’s

dominance on one side or David’s weakness, dependence, or justifiable trust on the

other. In fact, the overwhelming weight of the evidence indicated to the contrary.


                                           7
      Under prevailing law, a directed verdict was proper on David Shearer’s claim

for intentional infliction of emotional distress because another tort provided a remedy

for the mental anguish damages sought and the other tort was among the theories of

recovery submitted in the charge to the jury.

      Corrine seeks to have the entirety of the judgment reversed and judgment

rendered in her favor that David take nothing and that all costs be taxed against David

for the county court proceedings and this appeal. Alternatively, Corrine seeks to have

the judgment reversed and remanded to the county court for a new trial on David’s

claim for breach of fiduciary duty.

                               STANDARD OF REVIEW

      The appellate court must sustain a no evidence point of error when (1) the

record discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere

scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact.

Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). More than a scintilla

of evidence exists if the evidence “rises to a level that would enable reasonable and

fair-minded people to differ in their conclusions.” Merrell Dow Pharm., Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex.1997); Burroughs Wellcome Co. v. Crye, 907

S.W.2d 497, 499 (Tex.1995); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25


                                           8
(Tex.1994). On the other hand, “[w]hen the evidence offered to prove a vital fact is

so weak as to do no more than create a mere surmise or suspicion of its existence, the

evidence is no more than a scintilla and, in legal effect, is no evidence.” Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

      In reviewing factual sufficiency, the appellate court considers all the evidence

and will set aside the verdict only if the evidence supporting the jury finding is so

weak or so against the overwhelming weight of the evidence that the finding is clearly

wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

                                     ARGUMENT

I.    The Informal Fiduciary Relationship

      Texas courts are reluctant to recognize a fiduciary relationship because it

requires a person to place someone else's interests above her own. Vanderpool v.

Vanderpool, 442 S.W.3d 756, 765 (Tex. App. – Tyler 2014)(citing Lindley v.

McKnight, 349 S.W.3d 113, 124 (Tex. App.–Fort Worth 2011, no pet.)). The term

“fiduciary” applies to any person who occupies a position of peculiar confidence

towards another, and can arise in formal and informal relationships. Vanderpool, 442

S.W.3d at 765 (citing Lee v. Hasson, 286 S.W.3d 1, 14 (Tex. App.– Houston [14th

Dist.] 2007, pet. denied)). Informal fiduciary relationships, sometimes referred to as

“confidential relationships,” may give rise to a fiduciary duty where one person trusts

in and relies on another, whether the relation is a moral, social, domestic, or purely


                                          9
personal one. Vanderpool, 442 S.W.3d at 765 (citing Thigpen v. Locke, 363 S.W.2d

247, 253 (Tex.1962)). The confidential relationship must exist prior to, and apart

from, the transaction that forms the basis of the lawsuit. Meyer v. Cathey, 167 S.W.3d

327, 331 (Tex.2005). A confidential relationship exists where one person has a

special confidence in another to the extent that the parties do not deal with each other

equally, either because of dominance on one side or weakness, dependence, or

justifiable trust on the other. See Pope v. Darcey, 667 S.W.2d 270, 275 (Tex. App.–

Houston [14th Dist.] 1984, writ ref'd n.r.e.). A familial relationship, while considered

a factor, does not by itself establish a fiduciary relationship. Vanderpool, 442 S.W.3d

at 765 (citing Gray v. Sangrey, 428 S.W.3d 311, 316 (Tex. App.– Texarkana 2014,

pet. denied)).

      A.     When viewing the actualities of the relationship between Corrine
             Shearer and David Shearer, there was legally insufficient evidence
             from an objective standpoint that would support the existence of a
             fiduciary duty. Alternatively, the overwhelming weight of the
             evidence is to the contrary.

      The existence of an informal fiduciary relationship is generally a question of

fact. . Vanderpool, 442 S.W.3d at 765 (citing Thigpen v. Locke, 363 S.W.2d at 253).

But the issue is a question of law when the facts are undisputed or there is no

evidence to show the existence of an informal fiduciary relationship. Vanderpool, 442

S.W.3d at 765 (citing Meyer v. Cathey, 167 S.W.3d 327, 330–31 (Tex.2005)). To

determine whether a fiduciary relationship exists, courts review the actualities of the


                                          10
relationship between the parties involved. Vanderpool, 442 S.W.3d at 765 (citing

Thigpen, 363 S.W.2d at 253). Not every relationship involving a high degree of trust

and confidence rises to the stature of a fiduciary relationship. Vanderpool, 442

S.W.3d at 765 (citing Meyer, 167 S.W.3d at 330). Moreover, the confidential

relationship must exist prior to, and apart from, the transaction that forms the basis

of the lawsuit. Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex.2005)

        i.    Legal insufficiency

        Certainly, David will point to evidence that he spoke to Corrine on a daily basis

during the period that John was in the hospitals and that he trusted that she would

provide him with accurate information. Yet this is legally insufficient evidence when

considering the actualities of the relationship that made any trust David maintained

in Corrine purely subjective and unjustifiable.        Moreover, legally insufficient

evidence was presented establishing a confidential relationship existing prior to, and

apart from the occurrence or transaction that formed the basis of David’s lawsuit. The

following colloquy is telling of how David’s trust was merely subjective and that the

actualities of the relationship did not objectively support the existence of a fiduciary

duty:

              Q: Did you trust that she would accurately report his
              medical condition to you?
              A: Yes, sir.
              Q: Why did you trust that she would do that if you
              knew that in the past there had been problems.
              A: The problem between her and I was - - I wouldn’t

                                            11
             think that that would be an issue why she wouldn’t
             tell me about my dad. I didn’t think that problem - -
             it wasn’t a problem between her and I that would
             keep her from saying anything about my dad, I
             wouldn’t think. (4RR:158).

      David’s counsel essentially argued to the jury that they should find that the

reason Corrine breached her fiduciary duty was because:

             “She never felt right about David since he left the
             business. Her and David’s wife’s relationship ended in
             2003. That, yeah, John would go over there for
             Christmas, yeah, John would go visit, but did Corrine
             ever go? No.”
             (5RR:44).

      This argument premises Corrine’s breach of fiduciary duty on the same

evidence that should have prevented the jury from considering whether she owed a

fiduciary duty in the first place.


      ii.    Factual insufficiency

      As detailed above, the overwhelming weight of the evidence demonstrated that

the relationship between Corrine and David had deteriorated to such a degree that

after 2003, Corrine Shearer and David Shearer had little, if anything, to do with one

another. (See supra pp. 1–2). When Corrine was done with someone, she was done

with someone. (4RR:129).




                                         12
B.     There was legally insufficient evidence that David was accustomed to
      being guided by the judgment or advice of Corrine or that justified his
      belief that Corrine would act in his best interest. Alternatively, the
      overwhelming weight of the evidence demonstrated to the contrary and
      that Corrine only acted in John’s best interest.

      i.     Legal sufficiency

      Where one person is accustomed to being guided by the judgment or advice of

another or is justified in believing one will act in the best interest of another because

of a family relationship, a confidential relationship may arise. Thigpen v. Locke, 363

S.W.2d 247, 253 (Tex.1962). As already alluded to, from 2003 onward there is

legally insufficient evidence that David was accustomed to being guided by the

judgment or advice of Corrine. Moreover, there is legally insufficient evidence to

overcome the undisputed evidence showing that the disintegration of the relationship

rendered David’s placement of trust in Corrine to act in his best interest wholly

unjustifiable. See Trostle v. Trostle, 77 S.W.3d 908, 914–15 (Tex. App. – Amarillo

2002, no pet.)(upholding no-evidence summary judgment on existence of informal

fiduciary duty where stepmother failed to tell son that she pursued father’s wrongful

death suit when facts showed that appellant’s wife and appellee had differences and

appellant and appellee did not talk much before father’s death or at funeral).

      Much was made by David in trial of a discussion regarding a visit with doctors

about a possible DNR during David’s November 21, 2009 visit and an apparent


                                           13
phone call that shortly followed the visit in which John’s condition was reported to

have experienced a “miraculous recovery” and the “DNR was off the table.” (4RR:14,

61–67). Corrine could not remember whether a meeting took place and, although she

said she “probably” called David the following day (4RR:61–67), the phone records

and David’s own testimony irrefutably demonstrated that no such phone call could

have taken place. (4RR:89–90; 182–183). Thus, there was legally insufficient

evidence tending to suggest that Corrine relayed to David that he had experience a

“miraculous recovery” or that a “DNR was off the table” as argued by David. While

David suggested that “I wasn’t the only one in contact with her. My sister was as

well”, there was no testimony from his sister on this matter and no other legally

sufficient evidence presented to support this contention.

      Corrine argues that the court is barred by rules of law or of evidence from

giving weight to this evidence or the evidence offered is no more than a mere

scintilla. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003).

      ii.    Factual sufficiency

      After John arrived in Houston, Corrine consented to five different surgeries for

John while he was hospitalized in Houston. (4RR:93, 177). David testified that he did

not have any complaints about Corrine keeping him informed about surgical

procedures that Corrine consented to. (4RR:175). In fact, he testified that he “didn’t


                                         14
even think about it as far as having somebody there to initiate him to have the

surgeries. I just thought they were taking care of it.” (4RR:175). At trial, David

testified that he didn’t know that Corrine was making any decisions on his father’s

behalf while he was hospitalized, but in his deposition he testified that Corrine was

not making any decisions. (4RR:176–177).

      The evidence was undisputed that Corrine made numerous decisions prior to

the DNR being entered that were unknown to David until after his father’s death and

upon which he had no complaint. Corrine testified that only John’s best interest was

in her mind during the entire time he was hospitalized in Houston. (4RR:122). David

testified that he never doubted that everything that Corrine did was in John’s best

interest. (4RR:168). David stated that he “wasn’t the person that was trying to force

my way to take control” and that “all I wanted was what was best for my dad.”

(4RR:191). He also admitted that Corrine made the right decision in entering the

DNR. (4RR:186).

      David’s counsel admitted David’s position in the trial on this fact from the

outset:

      “We agree, there is no dispute that John Shearer did not want to live on
      machines. We agree with that. David, not knowing the truth about his dad’s
      medical condition, agrees it was the right decision to make. We agree with that.
      This case is about one thing and one thing only. Why she prevented, for no
      reason, a son who loved his father and a father who loved his son, from saying
      good-bye when she knew he was dying.”
                                         15
        (4RR:17).

        The overwhelming weight of the evidence demonstrates that Corrine acted in

John’s best interest and never assumed any duty to act in David’s best interest.


C.      In comparing the relative positions of the parties, there was legally
        insufficient evidence that Corrine and David lacked equal footing in the
        relationship. Alternatively, the overwhelming weight of the evidence
        showed to the contrary.

        i.    Legal sufficiency

        A confidential relationship exists where one person has a special confidence

in another to the extent that the parties do not deal with each other equally, either

because of dominance on one side or weakness, dependence, or justifiable trust on the

other. See Pope v. Darcey, 667 S.W.2d 270, 275 (Tex.App.-Houston [14th Dist.]

1984, writ ref'd n.r.e.). David’s attorney’s argued in closing arguments and at the

hearing on Corrine’s Motion to Disregard Certain Jury Findings and for J.N.O.V. that

“a fiduciary relationship may arise either as a result of dominance on the part of one

or weakness and the dependence on the part of the other [sic].” (6RR: 13). David’s

testimony regarding his injury, Angela’s diagnosis with a tumor, and his

responsibilities to his family rise to no more than a scintilla of evidence that David

experienced a weakness and dependence juxtaposed to a dominance on Corrine’s

part.


                                         16
      ii.    Factual sufficiency

      David testified that he considered himself available to the hospital by phone

from November 2, 2009 until the DNR was declared on his father on December 9,

2009. (4RR:195). David testified that he was aware that he had authority to consult

with doctors and certify any DNR on his father from the social worker and his uncle

before his father left Shreveport for Houston. (4RR:185-186, 211). David admitted

that, while he certainly could have, he did not talk to anyone with the hospital either

before or after November 21, 2009 (4RR:190–191, 196). David stated that he “wasn’t

the person that was trying to force my way to take control” and that “all I wanted was

what was best for my dad.” (4RR:191). David admitted that when the Houston VA

certified the DNR they were either ignoring David or based on the prior course of

dealing with treatment decisions made by Corrine on John’s behalf, or assuming that

Corrine was authorized to make those decisions. (4RR:199). Finally, David testified

that the doctors answered all the questions he had of them on November 21, 2009.

(4RR:224).

      David was armed with knowledge prior to John being taken to Houston that he

was apparently the only one authorized to make medical treatment decisions for John.

In a world of modern technology where his access to the doctors and to assert his

desires were a phone call away, the overwhelming weight of the evidence weighs


                                          17
against any inference that David was weak and dependant and unable himself to

represent his own best interests.


II.    Invasion of privacy tort provided adequate theory of recovery for David
       Shearer’s mental anguish and should have barred the submission of
       intentional infliction of emotional distress claim

       Corrine specially excepted to David’s cause of action for conversion of his

father’s ashes. (CR 20–21; 2RR:6–8, 11–12). Although the Court overruled that

special exception during pre-trial (CR 27; 2RR:11), it granted Corrine’s motion for

directed verdict on that cause of action after the close of evidence. (5RR:9, 15–16)1.

Corrine had also specially excepted to David’s cause of action for intentional

infliction of emotional distress on the grounds that there were alternative causes of

action that precluded the IIED claim from operating as a “gap-filler” tort. (CR 21–22;

2RR:12–15). The Court overruled that special exception during pre-trial (CR 27;

2RR:14–15) and denied Corrine’s motion for directed verdict asserted by Corrine on

the same grounds. (5RR:21).

       David plead facts in his Third Amended Original Petition that supported

recovery of mental anguish damages under more traditional causes of action.


       1
        It should be noted that the Court’s granting of the directed verdict appeared to be on
grounds that there was no evidence on the damage value to be assigned to John Shearer’s ashes
as opposed to the lack of a cause of action for conversion of ashes. However, David never plead
any actual damages besides mental anguish damages for any cause of action asserted.

                                               18
(CR65–66). To prove an intentional infliction of emotion distress, the Plaintiff must

establish that no other cause of action would provide a remedy for the severe

emotional distress caused by Defendant’s conduct. See Creditwatch, Inc. v. Jackson,

157 S.W.3d 814, 816 (Tex. 2005); Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d

438, 447 (Tex. 2004). Intentional infliction of emotional distress claims are

considered a “gap-filler” claim because it is only available to a plaintiff that has no

other means of redress. See Hoffman-LaRoche, Inc., 144 S.W.3d at 447 (emphasis

added). A plaintiff can satisfy the burden of proving that he has no other remedy

than by an intentional infliction of emotional distress cause of action by showing that

the defendant inflicted severe emotional distress in a manner so unusual that the

plaintiff has no other recognized means of redress. Id. Where the gravamen of

plaintiff’s complaint is really another tort, intentional infliction of emotional distress

should not be available. Id. If the defendant’s conduct would support an alternative

cause of action, the plaintiff is barred from pursuing an intentional infliction of

emotional distress claim, regardless of whether (1) the plaintiff chooses to bring the

alternative claim, (2) the plaintiff succeeds on the alternative claim, or (3) the

alternative claim is barred. See Creditwatch, 157 S.W.3d at 816; Hoffman-LaRoche,

Inc., 144 S.W.3d at 447–48; Standard Fruit & Veg. Co. v. Johnson, 985 S.W.2d 62,

68 (Tex. 1998).

                                           19
      David’s argument during the special exceptions and directed verdict hearings

was the same: that David was vested with “rights to possess and dispose of the

remains. And like - - Mr. Forrest says that right is caused [sic] by the Texas

legislature and Texas Health and Safety Code 711.002 and it lays out the priority.”

(2RR:9–14).

      Texas Health & Safety Code § 711.002 provides:

             (a) Except as provided by subsection (l), unless a
             decedent has left direction in writing for the
             disposition of the decedent’s remains as provided by
             subsection (g), the following persons, in the priority
             listed, have the right to control the disposition,
             including cremation, of the decedents remains, shall
             inter the remains, and are liable for the reasonable
             cost of interment:
             (1) the person designated in a written instrument
             signed by the decedent;
             (2) the decedent’s surviving spouse;
             (3) any one of the decedent’s surviving adult
             children;
             (4) either one of the decedent’s surviving parents;
             (5) any one of the decedent’s surviving adult
             siblings; or
             (6) any adult person in the next degree of kinship in
            the order named by law to inherit the estate of the
            decedent.

      David incorporated his claims for invasion of privacy under the IIED cause of

action for violations of Texas Health & Safety Code 166.039(b).(CR 65–66).

      Texas Health & Safety Code § 166.039(b) provides:

                                         20
              (b) If the patient does not have a legal guardian or an
              agent under a medical power of attorney, the
              attending physician and one person, if available,
              from one of the following categories, in the
              following priority, may make a treatment decision
              that may include a decision to withhold or withdraw
              life-sustaining treatment:
              (1) the patient's spouse;
              (2) the patient's reasonably available adult children;
              (3) the patient's parents; or
              (4) the patient's nearest living relative.


       During pre-trial, David argued that, should there be no recognized cause of

action for conversion, that the IIED claim stepped in as a gap-filler. (2RR:13–14). The

court asked Corrine’s counsel if the IIED claim would have been appropriately pled

had David chose not to plead the conversion claim at all. (2RR:14–15). Corrine’s

counsel responded that such a claim could have been plead under the invasion of

privacy claim since it essentially mirrored the same theory underlying the other Texas

Health & Safety Code violations that were plead by David. (2RR:15).

       The availability of an IIED claim depends upon the unavailability of a more

traditional tort theory that can provide a means to recovery of mental anguish

damages. The only damages sought by Plaintiff, besides the exemplary damages, were

mental anguish damages and were subject to recovery in the alternative invasion of

privacy claim that David plead and on which a question was submitted to the jury. The



                                           21
Court erred by permitting the IIED claim to survive under these circumstances.


                             CONCLUSION AND PRAYER

       Corrine Shearer has shown that the evidence at trial was legally and factually

insufficient to show that a fiduciary duty existed between Corrine and David Shearer.

Corrine Shearer has shown that David Shearer had an alternative remedy besides an

IIED cause of action to recover mental anguish damages and that alternative remedy

was pled and presented to the jury. Corrine Shearer would ask that the Court reverse

and render judgment on both grounds, that David Shearer take nothing, and that

Corrine Shearer be awarded her costs.

       Alternatively, the evidence at trial was factually insufficient to show that a

fiduciary duty existed between Corrine Shearer and David Shearer. Corrine Shearer

would ask that the Court reverse and remand the case to the trial court for a new trial

on David Shearer’s claim for breach of fiduciary duty.




                                          22
           CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e)

1.        This brief complies with the type-volume limitation of Texas Rule of
          Appellate Procedure 9.4(e)(i)(2)(B) because, according to the Microsoft
          Word 2010 word count function, it contains 3,671 words on pages 7-22,
          excluding the parts of the brief exempted by Texas Rule of Appellate
          Procedure 9.4(e)(i)(1).

2.        This brief complies with the typeface requirements of Texas Rule of
          Appellate Procedure 9.4(e) because it has been prepared in proportionally
          spaced typeface using Microsoft Word 2010 software in Times New Roman
          14-point font in text and Times New Roman 12-point in footnotes.


                                              /s/ J. Chad Parker
                                             J. Chad Parker


                         CERTIFICATE OF SERVICE

          I certify that a true and correct copy of the Brief of Appellant Corrine
Augustine Nichols Hill Shearer was served by electronic service and/or email to the
following counsel of records on March 9, 2015.

Carson Runge
SLOAN, BAGLEY, HATCHER & PERRY
101 East Whaley Street
Longview, Texas 75601
Via Email



                                              /s/ J. Chad Parker
                                             J. Chad Parker




                                        23
                             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

                     APPENDIX TO BRIEF OF APPELLANT

Tab 1:   Order On Defendant’s Special Exceptions to
         Plaintiff’s Second Amended Petition

Tab 2:   Court’s Charge/Jury Instructions

Tab 3:   Court’s Charge/Jury Instructions as to Exemplary Damages

Tab 4:   Final Judgment

Tab 5:   Order on Defendant’s Motion to Set Aside Judgment
         and for New Trial

Tab 6:   Tex. Health & Safety Code §166.039

Tab 7:   Tex. Health & Safety Code §711.002



                                      24
§ 166.039. Procedure When Person Has Not Executed or..., TX HEALTH & S §...




  Vernon's Texas Statutes and Codes Annotated
    Health and Safety Code (Refs & Annos)
      Title 2. Health
        Subtitle H. Public Health Provisions
           Chapter 166. Advance Directives (Refs & Annos)
              Subchapter B. Directive to Physicians (Refs & Annos)

                                           V.T.C.A., Health & Safety Code § 166.039

                              § 166.039. Procedure When Person Has Not Executed or Issued
                              a Directive and Is Incompetent or Incapable of Communication

                                                           Currentness


(a) If an adult qualified patient has not executed or issued a directive and is incompetent or otherwise mentally or physically
incapable of communication, the attending physician and the patient's legal guardian or an agent under a medical power of
attorney may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment from
the patient.


(b) If the patient does not have a legal guardian or an agent under a medical power of attorney, the attending physician and one
person, if available, from one of the following categories, in the following priority, may make a treatment decision that may
include a decision to withhold or withdraw life-sustaining treatment:


  (1) the patient's spouse;


  (2) the patient's reasonably available adult children;


  (3) the patient's parents; or


  (4) the patient's nearest living relative.


(c) A treatment decision made under Subsection (a) or (b) must be based on knowledge of what the patient would desire, if
known.


(d) A treatment decision made under Subsection (b) must be documented in the patient's medical record and signed by the
attending physician.


(e) If the patient does not have a legal guardian and a person listed in Subsection (b) is not available, a treatment decision made
under Subsection (b) must be concurred in by another physician who is not involved in the treatment of the patient or who is a
representative of an ethics or medical committee of the health care facility in which the person is a patient.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
§ 166.039. Procedure When Person Has Not Executed or..., TX HEALTH & S §...




(f) The fact that an adult qualified patient has not executed or issued a directive does not create a presumption that the patient
does not want a treatment decision to be made to withhold or withdraw life-sustaining treatment.


(g) A person listed in Subsection (b) who wishes to challenge a treatment decision made under this section must apply for
temporary guardianship under Section 875, Texas Probate Code. 1 The court may waive applicable fees in that proceeding.


Credits
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 291, § 3, eff. Jan. 1, 1998.
Renumbered from V.T.C.A., Health & Safety Code § 672.009 and amended by Acts 1999, 76th Leg., ch. 450, § 1.03, eff.
Sept. 1, 1999.


Editors' Notes

                                                      REVISOR'S NOTE

                                                      2010 Main Volume

       The source law refers to an adult qualified patient who has not “issued a directive.” The revised law substitutes the
       phrase “executed or issued” because Section 3 of the source law, revised as Sections 672.003-672.005, states that
       a declarant “executes” a written directive and “issues” a nonwritten directive.



Notes of Decisions (2)



Footnotes
1      Repealed; see, now, V.T.C.A., Estates Code § 1251.001 et seq.
V. T. C. A., Health & Safety Code § 166.039, TX HEALTH & S § 166.039
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 2
§ 711.002. Disposition of Remains; Duty to Inter, TX HEALTH & S § 711.002




  Vernon's Texas Statutes and Codes Annotated
    Health and Safety Code (Refs & Annos)
      Title 8. Death and Disposition of the Body (Refs & Annos)
        Subtitle C. Cemeteries and Crematories (Refs & Annos)
           Chapter 711. General Provisions Relating to Cemeteries (Refs & Annos)
              Subchapter A. General Provisions

                                          V.T.C.A., Health & Safety Code § 711.002

                                     § 711.002. Disposition of Remains; Duty to Inter

                                                 Effective: September 1, 2013
                                                         Currentness


(a) Except as provided by Subsection (l), unless a decedent has left directions in writing for the disposition of the decedent's
remains as provided in Subsection (g), the following persons, in the priority listed, have the right to control the disposition,
including cremation, of the decedent's remains, shall inter the remains, and are liable for the reasonable cost of interment:


  (1) the person designated in a written instrument signed by the decedent;


  (2) the decedent's surviving spouse;


  (3) any one of the decedent's surviving adult children;


  (4) either one of the decedent's surviving parents;


  (5) any one of the decedent's surviving adult siblings; or


  (6) any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.


(a-1) If the person with the right to control the disposition of the decedent's remains fails to make final arrangements or appoint
another person to make final arrangements for the disposition before the earlier of the 6th day after the date the person received
notice of the decedent's death or the 10th day after the date the decedent died, the person is presumed to be unable or unwilling
to control the disposition, and:


  (1) the person's right to control the disposition is terminated; and


  (2) the right to control the disposition is passed to the following persons in the following priority:


     (A) any other person in the same priority class under Subsection (a) as the person whose right was terminated; or




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
§ 711.002. Disposition of Remains; Duty to Inter, TX HEALTH & S § 711.002




        (B) a person in a different priority class, in the priority listed in Subsection (a).


(a-2) If a United States Department of Defense Record of Emergency Data, DD Form 93, or a successor form, was in effect at
the time of death for a decedent who died in a manner described by 10 U.S.C. Sections 1481(a)(1) through (8), the DD Form 93
controls over any other written instrument described by Subsection (a)(1) or (g) with respect to designating a person to control
the disposition of the decedent's remains. Notwithstanding Subsections (b) and (c), the form is legally sufficient if it is properly
completed, signed by the decedent, and witnessed in the manner required by the form.


(b) The written instrument referred to in Subsection (a)(1) shall be in substantially the following form:

I,,......................................................................................................................................................................................................

APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS
                                (your name and address)

being of sound mind, willfully and voluntarily make known my desire that, upon my death,

the disposition of my remains shall be controlled by ..................................................................................................................

                                                                                                                                                                                (name of agent)

in accordance with Section 711.002 of the Health and Safety Code and, with respect to that subject only, I hereby appoint such
person as my agent (attorney-in-fact).

All decisions made by my agent with respect to the disposition of my remains, including cremation, shall be binding.

SPECIAL DIRECTIONS:

Set forth below are any special directions limiting the power granted to my agent:

.........................................................................................................................................................................................................

.........................................................................................................................................................................................................

.........................................................................................................................................................................................................

.........................................................................................................................................................................................................

.........................................................................................................................................................................................................

AGENT:

Name:..............................................................................................................................................................................................

Address:...........................................................................................................................................................................................

Telephone Number:.........................................................................................................................................................................



                        © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                                                                          2
§ 711.002. Disposition of Remains; Duty to Inter, TX HEALTH & S § 711.002




Acceptance of Appointment:..........................................................................................................................................................

(signature of agent)
Date of Signature:...........................................................................................................................................................................

SUCCESSORS:

If my agent dies, becomes legally disabled, resigns, or refuses to act, I hereby appoint the following persons (each to act
alone and successively, in the order named) to serve as my agent (attorney-in-fact) to control the disposition of my remains
as authorized by this document:

1. First Successor

Name:..............................................................................................................................................................................................

Address:...........................................................................................................................................................................................

Telephone Number:.........................................................................................................................................................................

Acceptance of Appointment:..........................................................................................................................................................

                                                                                                                                                       (signature of first successor)

Date of Signature:...........................................................................................................................................................................

2. Second Successor

Name:..............................................................................................................................................................................................

Address:...........................................................................................................................................................................................

Telephone Number:.........................................................................................................................................................................

Acceptance of Appointment:..........................................................................................................................................................

                                                                                                                                                   (signature of second successor)

Date of Signature:...........................................................................................................................................................................

DURATION:

This appointment becomes effective upon my death.

PRIOR APPOINTMENTS REVOKED:

I hereby revoke any prior appointment of any person to control the disposition of my remains.

RELIANCE:



                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                                                                      3
§ 711.002. Disposition of Remains; Duty to Inter, TX HEALTH & S § 711.002




I hereby agree that any cemetery organization, business operating a crematory or columbarium or both, funeral director or
embalmer, or funeral establishment who receives a copy of this document may act under it. Any modification or revocation of
this document is not effective as to any such party until that party receives actual notice of the modification or revocation. No
such party shall be liable because of reliance on a copy of this document.

ASSUMPTION:

THE AGENT, AND EACH SUCCESSOR AGENT, BY ACCEPTING THIS APPOINTMENT, ASSUMES THE
OBLIGATIONS PROVIDED IN, AND IS BOUND BY THE PROVISIONS OF, SECTION 711.002 OF THE HEALTH AND
SAFETY CODE.

                                              Signed this _________________ day of __________________________, 19___.

 __________________________________
 (your signature)
State of ____________________

County of ___________________

This document was acknowledged before me on _________________ (date) by _____________________________ (name of
principal).

 __________________________________
 (signature of notarial officer)
(Seal, if any, of notary)

 _________________________________
 (printed name)
 My commission expires:
 _________

(c) A written instrument is legally sufficient under Subsection (a)(1) if the wording of the instrument complies substantially with
Subsection (b), the instrument is properly completed, the instrument is signed by the decedent, the agent, and each successor
agent, and the signature of the decedent is acknowledged. Such written instrument may be modified or revoked only by a
subsequent written instrument that complies with this subsection.


(d) A person listed in Subsection (a) has the right, duty, and liability provided by that subsection only if there is no person in
a priority listed before the person.


(e) If there is no person with the duty to inter under Subsection (a) and:


  (1) an inquest is held, the person conducting the inquest shall inter the remains; and


  (2) an inquest is not held, the county in which the death occurred shall inter the remains.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
§ 711.002. Disposition of Remains; Duty to Inter, TX HEALTH & S § 711.002




(f) A person who represents that the person knows the identity of a decedent and, in order to procure the disposition, including
cremation, of the decedent's remains, signs an order or statement, other than a death certificate, warrants the identity of the
decedent and is liable for all damages that result, directly or indirectly, from that warrant.


(g) A person may provide written directions for the disposition, including cremation, of the person's remains in a will, a prepaid
funeral contract, or a written instrument signed and acknowledged by such person. The directions may govern the inscription
to be placed on a grave marker attached to any plot in which the decedent had the right of sepulture at the time of death and
in which plot the decedent is subsequently interred. The directions may be modified or revoked only by a subsequent writing
signed and acknowledged by such person. The person otherwise entitled to control the disposition of a decedent's remains
under this section shall faithfully carry out the directions of the decedent to the extent that the decedent's estate or the person
controlling the disposition are financially able to do so.


(h) If the directions are in a will, they shall be carried out immediately without the necessity of probate. If the will is not
probated or is declared invalid for testamentary purposes, the directions are valid to the extent to which they have been acted
on in good faith.


(i) A cemetery organization, a business operating a crematory or columbarium or both, a funeral director or an embalmer, or
a funeral establishment shall not be liable for carrying out the written directions of a decedent or the directions of any person
who represents that the person is entitled to control the disposition of the decedent's remains.


(j) Repealed by Acts 2011, 82nd Leg., ch. 707 (H.B. 549), § 3.


(k) Any dispute among any of the persons listed in Subsection (a) concerning their right to control the disposition, including
cremation, of a decedent's remains shall be resolved by a court of competent jurisdiction. A cemetery organization or funeral
establishment shall not be liable for refusing to accept the decedent's remains, or to inter or otherwise dispose of the decedent's
remains, until it receives a court order or other suitable confirmation that the dispute has been resolved or settled.


(l) A person listed in Subsection (a) may not control the disposition of the decedent's remains if, in connection with the decedent's
death, an indictment has been filed charging the person with a crime under Chapter 19, Penal Code, that involves family violence
against the decedent.


Credits
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 213, eff. Sept. 1, 1991; Acts
1993, 73rd Leg., ch. 634, § 2, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 967, § 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg.,
ch. 1385, § 1, eff. Aug. 30, 1999; Acts 2011, 82nd Leg., ch. 95 (H.B. 74), § 1, eff. May 20, 2011; Acts 2011, 82nd Leg., ch.
532 (H.B. 2495), § 2, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., ch. 707 (H.B. 549), §§ 1, 3, eff. June 17, 2011; Acts 2011, 82nd
Leg., ch. 1336 (S.B. 1167), § 2, eff. Sept. 1, 2011; Acts 2013, 83rd Leg., ch. 161 (S.B. 1093), § 22.001(28), eff. Sept. 1, 2013.


Editors' Notes

                                                       REVISOR'S NOTE

                                                       2010 Main Volume



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
§ 711.002. Disposition of Remains; Duty to Inter, TX HEALTH & S § 711.002


       The revised law substitutes “person conducting the inquest” for “coroner.” Under Chapter 49, Code of Criminal
       Procedure, justices of the peace and medical examiners conduct inquests.



Notes of Decisions (14)

V. T. C. A., Health & Safety Code § 711.002, TX HEALTH & S § 711.002
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                6
