                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                      No. 07-13-00130-CV


    JACKSON WALKER, LLP AND M. KEITH BRANYON AND JANE O. LINDSEY,
  INDIVIDUALLY AND AS THE FORMER CO-TRUSTEE OF THE LESEY B. KINSEL
              TRUST, AND ROBERT N. OLIVER, APPELLANTS

                                              V.

VIRGINIA O. KINSEL, AS ATTORNEY-IN-FACT FOR J. FRANK KINSEL, SR., J. FRANK
   KINSEL, JR. , INDIVIDUALLY, CAROLE K. EDWARDS, INDIVIDUALLY, AND
             CATHERINE K. COLLINS, INDIVIDUALLY, APPELLEES

                          On Appeal from the 153rd District Court
                                  Tarrant County, Texas
                    Trial Court No. 153-232668-08, Ken Curry, Presiding

                                       April 10, 2015

                               On Motions for Rehearing
                   Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Pending before the court are three motions for rehearing.           After considering

each, we withdraw our February 13, 2015 opinion and judgment, and substitute the

following in its place.   To the extent those motions seek relief not reflected in the

following opinion, they are denied.
                                  Memorandum Opinion

       We have before us an appeal from a final judgment awarding damages to

Virginia O. Kinsel, as attorney-in-fact for J. Frank Kinsel, Sr., J. Frank Kinsel, Jr., Carole

K. Edwards, and Catherine K. Collins (collectively referred to as the Kinsels) against

Jackson Walker, L.L.P., M. Keith Branyon, Jane O. Lindsey, individually and as the

former co-trustee of the Lesey B. Kinsel Trust (Lindsey), and Robert N. Oliver (Oliver).

The Kinsels sued Jackson Walker, Branyon (a partner in Jackson Walker), Lindsey and

Oliver for fraud, tortious interference with prospective inheritance rights, and civil

conspiracy, among other things. Their claims arose from the sale of a ranch owned in

part by them, their predecessors, and Lesey B. Kinsel (Lesey). Allegedly, they were

defrauded into selling their interests to help Lesey provide for herself, when the

purportedly true motive was to secure a greater inheritance for Lindsey and Oliver.

Numerous issues pend for our review, but we need not address all of them. And upon

considering those which are dispositive, we reverse the trial court’s judgment in part,

and affirm in part as modified.

       Background

       Lesey and her husband, E.A. Kinsel, bought a ranch in Atascosa County in 1943.

Though they never had children together, E.A. had four from a prior marriage. The four

were J. Frank Kinsel, Sr., Joe Bob Kinsel, Alex Kinsel, and Maxine Prince. Upon his

death, E.A. divided equally his one-half community interest in the ranch between Lesey

and his offspring. Upon receiving the bequest from E.A., Lesey owned 60% of the

ranch, and that interest was placed in her intervivos trust. According to the terms of the

trust instrument, the interest would pass to E.A.’s children or heirs upon her death. The



                                              2
plaintiffs at bar fell within that category of beneficiaries, and receiving that interest would

compliment interests they or their predecessors already owned in it.

       As she grew older and more frail, Lesey moved from Beaumont to Fort Worth,

the latter being a locale nearer to family members. Two such family members were

Lindsey and Oliver, Lesey’s niece and nephew, respectively.            Furthermore, Lindsey

began handling some of her aunt’s financial affairs upon Lesey’s arrival in Fort Worth.

So too did she instigate the modification of Lesey’s will and intervivos trust, according to

the Kinsels, to benefit herself.

       The trust held substantial portions of Lesey’s property, including the

aforementioned interest in the ranch. Under its terms, various descendants or heirs of

E.A. were to receive the ranch property upon Lesey’s death. Included within that group

were J. Frank, Sr., Virginia, J. Frank, Jr. (referred to as Jeff), Carole and Catherine.

Lindsey was a residual beneficiary under the instrument.

       Once Lesey was under the care or supervision of her niece, there arose

discussions concerning the sale of the ranch. Around the same time, Lindsey began

investigating the need to hire an attorney for Lesey. Oliver referred her to his son-in-law

who was employed by the law firm of Jackson Walker in Austin, Texas. That individual

referred her to Branyon who was located in Fort Worth. Lindsey contacted Branyon,

who then met Lesey in February 2007.               Their first meeting encompassed the

modification of Lesey’s 2004 last will and testament. By this time, Lesey was ninety-

four years old and legally blind. She was also suffering loss of her mental acumen.

       Evidence indicates that Lindsey or Oliver began estimating the value of the

ranch. Eventually, Lindsey contacted the Kinsels and told them that Lesey needed



                                              3
money and suggested that the ranch be sold. Branyon followed these communications

with letters stating that Lesey’s living expenses had increased and that “we have

investigated the various possibilities available to her in raising some additional

cash . . . .” He also said that “the ranch would clearly bring more money for everyone if

it were sold intact rather than sold in pieces.” What the Kinsels were not told was that

Lesey already had approximately $1.4 million dollars in assets available for her care.

Upon hearing of the supposed needs of Lesey, each person owning an interest in the

ranch agreed to join in the transaction. Though Lindsey testified that Lesey also wanted

to sell the property, at least one witness testified that she did not. This same witness

testified that Lesey too was being told that she was running short of assets, which

information, according to the witness, caused Lesey distress.

      Once a buyer was found, Branyon drafted the requisite paperwork for execution

by Lesey. Ultimately, the sale was consummated in the summer of 2008. Upon its

completion, Branyon sent an email to Lindsey and Oliver saying that they should now

open the champagne. Apparently, Oliver also planned a celebration in honor of the

transaction.

      Proceeds from the sale were divided among the ranch owners. Lesey’s share

exceeded $3 million and was placed in her trust. As residual beneficiary of the trust,

most would pass to Lindsey upon Lesey’s death. And, within about a month of the sale,

Lesey died.    Yet, several days before she did, Branyon presented Lesey with an

amendment to the trust effectively deleting any reference as to how her ranch interest

was to be distributed upon her death. Lindsey emailed Branyon about the execution of




                                           4
this amendment and hoped “all went well” so she “can quit worrying about a possible

lawsuit from the Kinsel grandchildren.” Branyon replied with:

      The latest amendment doesn't affect you and I think it might be a good
      idea for me to keep it in my file and not send anyone (including you) a
      copy of it at this point. I can't guarantee that someone won't try and
      contest it after Lesey dies. In fact, I expect it to happen. However, I wlll be
      able to keep you out of it, and I don't anticipate any problems in defeating
      any contest that may be filed.

      In short, there was no ranch which the Kinsels would inherit. And, believing

themselves defrauded and denied their prospective inheritance by Lindsey, Oliver and

Branyon, the Kinsels sued for damages. So too did they seek findings that Lesey not

only was of unsound mind when she sold the ranch and executed the amendments to

her will and intervivos trust but also fell prey to the undue influence of Lindsey, Oliver

and Branyon. Though they did not seek to rescind the ranch sale by suing the buyer,

they did seek to set aside the sales documents Lesey had signed, along with the 2007

and 2008 amendments to Lesey’s will and trust. Also sought was a constructive trust

on the sales proceeds.

      Trial was to a jury.    It found, among other things, that 1) Lesey lacked the

requisite mental capacity when executing the ranch sales documents and trust

amendments, 2) the Kinsels had been defrauded into selling their interests in the ranch,

and 3) Lindsey, Oliver, and Branyon tortiuously interfered with the Kinsels’ prospective

inheritance. These findings were incorporated into the trial court’s final judgment. As a

result of them, the trial court, among other things, 1) awarded the Kinsels damages

against Lindsey, Oliver, Branyon, and Jackson Walker (jointly and severally), 2)

“declared void and of no effect” the Fourth and Fifth Amendments to the Lesey B. Kinsel

Trust, 3) declared that the Kinsel Ranch sales contract executed on or about April 15,


                                            5
2008 and the deed of conveyance executed on or about July 22, 2008 were procured as

a result of undue influence or the lack of capacity of Lesey B. Kinsel to execute them, 4)

declared that the Kinsels were “entitled to the damage amounts listed above [in the

judgment] as a result” of the sales contract and deed being procured by undue influence

or while Lesey lacked mental capacity to execute them, 5) declared void “any prior deed

or document to convey any interest in the oil, gas and minerals from the Trust to Jane

O. Lindsey or Robert N. Oliver,” 6) imposed a constructive trust “on Jane O. Lindsey's

interest in the Trust and any monies that Jane O. Lindsey would be legally entitled to

from the Trust . . .” for the purpose of satisfying, “in whole or in part, Plaintiffs' judgment

in this lawsuit . . . ,” and 7) awarded the Kinsels their attorney’s fees of $800,000 per

§ 27.01 of the Texas Business and Commerce Code, § 37.009 of the Texas Civil

Practice & Remedies Code, and § 114.064 of the Texas Trust Code.

       All parties timely appealed, and numerous issues pend before us. Yet, several

are dispositive of the outcome and we consider them.

       Tortious Interference With Inheritance Rights

       Lindsey, Oliver and Branyon contend that the trial court erred in awarding

damages for their purportedly tortious interference with the Kinsels’ inheritance.

Allegedly, the issue should not have been submitted to the jury because neither the

Texas Supreme Court nor the Court of Appeals for the Second District of Texas (that is,

Fort Worth Court of Appeals) has recognized such a cause of action. We agree.

       The tort of interference with inheritance rights is described in the Restatement of

Torts. We are told therein that someone who “by fraud, duress or other tortious means

intentionally prevents another from receiving from a third person an inheritance or gift



                                              6
that he would otherwise have received is subject to liability to the other for loss of the

inheritance or gift." Restatement (Second) of Torts, § 774B (1979); see also Urbanczyk

v. Urbanczyk, 278 S.W.3d 829, 835 (Tex. App.—Amarillo 2009, no pet.) (so defining the

cause of action while assuming arguendo that it was recognized in Texas).

Furthermore, various intermediate courts of appeals consider it a recognized cause of

action in Texas. See e.g. In re Estate of Valdez, 406 S.W.3d 228, 233 (Tex. App.—San

Antonio 2013, pet. denied) (stating that “Texas law recognizes a cause of action for

tortious interference with inheritance rights”); Clark v. Wells Fargo Bank, N.A., No. 01-

08-00887-CV, 2010 Tex. App. LEXIS 4376 (Tex. App.—Houston [1st Dist.] June 10,

2010, no pet.) (mem. op.) (stating the same); In re Estate of Russell, 311 S.W.3d 528,

535 (Tex. App.—El Paso 2009, no pet.) (stating the same). Nonetheless, neither our

Texas Legislature nor Texas Supreme Court has recognized it. To that category of

bodies we also add the Fort Worth Court of Appeals. The latter circumstance is of

particular concern since the appeal was transferred from that court to this one by the

Supreme Court via a docket equalization order. Given that, we are obligated to abide

by and apply precedent of the Fort Worth appellate court (as well as the Supreme

Court) when disposing of the appeal.        TEX. R. APP. P. 41.3; Lubbock County v.

Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002). Since the Fort Worth

Court of Appeals has not recognized the claim, it could be argued that our decision

could bind it in future matters. To avoid standing the policy underlying Rule 41.3 on its

head by making precedent for the Fort Worth Court of Appeals when we are to follow its

precedent, we heed a long standing principle related to the authority of courts of

appeals.



                                            7
       It is not for intermediate appellate courts to create new causes of action.

Burroughs v. APS Int’l, Ltd., 93 S.W.3d 155, 161 (Tex. App.—Houston [14th Dist.] 2002,

pet. denied); Bernard Johnson, Inc. v. Continental Constructors, Inc., 630 S.W.2d 365,

375 (Tex. Civ. App.—Austin 1982, writ ref'd n.r.e.); accord, Simmons Airlines v.

Lagrotte, 50 S.W.3d 748, 752 (Tex. App.—Dallas 2001, pet. denied) (stating that “[i]t is

not for an intermediate appellate court to undertake to enlarge or extend the grounds for

wrongful discharge under the employment-at-will doctrine. If such an exception is to be

created, the Texas Supreme Court should do it.”). Creating a new cause of action is

tantamount to creating a new law. Yet, “our State Constitution makes clear that it is the

Legislature that promulgates laws and ‘the power conferred upon the legislature to

make the laws cannot be delegated by that department to any other body or authority.’"

In re City of Georgetown, 53 S.W.3d 328, 339 (Tex. 2001). Thus, neither this court, the

courts in Valdez, Clark, and Russell, nor the trial court below can legitimately recognize,

in the first instance, a cause of action for tortiuously interfering with one’s inheritance.

Doing so lies within the province of the Texas Supreme Court or the Texas Legislature.

And, because the trial court failed to heed that principle, it erred. That the error was

harmful is clear because the jury not only found in favor of the Kinsels on that claim but

also awarded them damages under it.

       In so concluding, we do not ignore the dissent’s analysis but rather simply

disagree with it. Undoubtedly, other intermediate courts of appeals have recognized the

existence of the cause of action. Yet, the Seventh Court of Appeals is not one of them,

as exemplified in Urbanczyk v. Urbanczyk, 278 S.W.3d 829 (Tex. App.—Amarillo 2009,

no pet.). In footnote six of that opinion, we wrote:



                                             8
       The summary judgment motion of Marvin and Janet also asserted that the
       claim failed as a matter of law because the Texas Supreme Court has not
       recognized a cause of action for tortious interference with inheritance
       rights. Disposition of this appeal does not require us to consider whether
       such a cause of action exists in Texas, and we do not consider that
       question. Delmer cites our opinion in Nordyke v. Nordyke, No. 07-96-406-
       CV, 1998 Tex. App. LEXIS 55, 1998 WL 4508 (Tex.App.--Amarillo,
       January 7, 1998, pet. denied) (mem. op.) as recognizing a cause of action
       for tortious interference with inheritance rights. As our opinion made clear,
       the existence of the cause of action was not addressed, but only the
       appellant's contention that limitations barred its assertion. 1998 Tex. App.
       LEXIS 55, [WL] at *3 n.1.

Id. at 835 n.6. The verbiage of that footnote (which happens to be our most recent

writing on the subject) does not permit one to logically conclude that tortious

interference with inheritance rights has been recognized as a viable cause of action by

a majority of this court.

       As for reference to our opinion in In re Estate of Crawford, 795 S.W.2d 835 (Tex.

App.—Amarillo 1990 no writ), we did mention the claim. The passage consisted of our

saying that: “By his six cross-points, Bill charges the trial court with abuse of discretion

in directing a verdict against him on his causes of action for tortious interference with

inheritance rights, breach of fiduciary duty, fraud, bad faith, conspiracy, and imposition

of a constructive trust.” Id. at 841 (emphasis added). Nothing else was said about the

matter, though, and we ultimately affirmed the trial court’s directed verdict on it and the

other itemized causes.

       To the extent that the dissent suggests that the Fort Worth Court of Appeals

somehow recognized the claim in Swearingin v. Estate of Swearingin, No. 02-05-00132-

CV, 2006 Tex. App. LEXIS 5187 (Tex. App.—Fort Worth June 15, 2006, no pet.) (mem.

op.), In re Bledsoe, 41 S.W.3d 807 (Tex. App.—Fort Worth 2011, orig. proceeding), and

Allen v. Havens, No. 02-05-00318-CV, 2007 Tex. App. LEXIS 2088, at *27 (Tex. App.—


                                             9
Fort Worth March 15, 2007, no pet.) (mem. op.), the suggestion fails to withstand

scrutiny. In Swearingin, the cause of action was mentioned along with a number of

others. Yet, the opinion said nothing of its merits or availability under Texas law. Nor

did the claim serve as any basis for recovery.            Indeed, the only chose-in-action

addressed on the merits was that sounding in breached contract, and the Fort Worth

Court of Appeals affirmed summary judgment against the complainant because there

was no breach of contract. Swearingin, 2006 Tex. App. LEXIS 5187, at *10-16.

       Nor were the merits of the claim addressed in Bledsoe. There, the court dealt

with whether striking Bledsoe’s defensive pleadings constituted the levy of

impermissible death penalty sanctions. Admittedly, it itemized the various causes of

action for which Bledsoe had been sued, and among them was the purported tort at

issue here. Yet, the reviewing court said nothing about the viability of any cause-of-

action pled.   It simply addressed the presence of error in prohibiting Bledsoe from

pursuing his affirmative defenses and held “that the probate court abused its discretion

in striking [his] fact witnesses, trial exhibits, and proposed jury instructions, definitions,

and questions . . . .” In re Bledsoe, 41 S.W.3d at 815.

       As for Allen, the court again mentioned the various causes of action alleged

against defendant, and, again, one consisted of tortious interference with an

inheritance. Allen v. Havens, 2007 Tex. App. LEXIS 2088, at *2. But, the disputes

before it dealt not with their viability but with the existence of either subject matter or

personal jurisdiction.   And, in the end, the reviewing court simply affirmed Haven’s

special appearance and the dismissal for want of personal jurisdiction over him.




                                             10
       Finally, we note that denying a petition for discretionary review carries no

precedential weight. That is, the decision to forego such a review cannot be deemed as

indicating that the Supreme Court approved of what the intermediate court did. Loram

Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006). So, contrary to the

dissent’s insinuation, the Supreme Court’s decision to forego discretionary review in In

re Estate of Valdez, 406 S.W.3d at 233, is no evidence that the Supreme Court has

implicitly recognized tortious interference with inheritance rights.

       Merely saying the words “tortious interference with inheritance rights” somewhere

in an opinion is not tantamount to acknowledging its viability under Texas jurisprudence.

This is not to say that the claim at issue should not be recognized. We simply forego

the opportunity to create law for another intermediate appellate court via a transfer

case, especially when this appellate court has yet to itself adopt that law for disputes

arising within its own district. The matter is instead left to the governmental bodies

authorized to expand Texas jurisprudence . . . the Texas Supreme Court and the Texas

Legislature.

       Fraud and Damages

       Next, we address the issues concerning fraud. According to Branyon, Lindsey

and Oliver, the verdict lacked legally and factually sufficient evidentiary support. So too

was the instruction on damages allegedly defective. We sustain the issue in part.

       After directing the jury to decide whether fraud occurred, the trial court submitted

the following:

              What sum of money, if any, do you find from a preponderance of
       the evidence, if paid now in cash, would fairly and reasonably compensate
       [the Kinsels] for the damages, if any, proximately caused by the conduct
       [committed by the defendants]?


                                             11
                                           *****
       Answer separately in dollars and cents for damages, if any.

              a. The value of their present and future interest, if any, in the Kinsel
                 Ranch, excluding minerals.

Instructing the jury to consider only the Kinsels’ “present and future interest” in the ranch

allegedly was an inaccurate measure. We agree.

       One falling victim of fraud may recover direct damages and consequential

damages.     Arthur Andersen v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex. 1997).

Direct damages are those that necessarily and usually arise from the misconduct, and

they can be measured as either out-of-pocket loss or the lost benefit-of-the-bargain.

Aquaplex, Inc. v. Rancho La Valencia, Inc. 297 S.W.3d 768, 775 (Tex. 2009) (per

curiam); Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636 (Tex. 2007). The former is

restitutionary in nature and measures the difference between the value of that given and

that received. Baylor Univ. v. Sonnichsen, 221 S.W.3d at 636; Formosa Plastics Corp.

USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 49 (Tex.1998). The latter

measures one’s expectancy and assesses difference between the value of the property

as represented and its actual value. Baylor Univ. v. Sonnichsen, 221 S.W.3d at 636.

And, both are determined at the time of the sale or transaction induced by the fraud.

Arthur Andersen v. Perry Equip. Corp., 945 S.W.2d at 817.

       Consequential damages are damages that result naturally but not necessarily

from the wrongful act. Id. at 816. Though not the usual result of the wrong, they

nonetheless must be foreseeable and directly traceable to and result from the

misconduct. Id.; see Formosa Plastics, 960 S.W.2d at 49 n.1 (stating that “[w]hen

properly pleaded and proved, consequential damages that are foreseeable and directly


                                             12
traceable to the fraud and result from it might be recoverable”). And, unlike direct

damages, consequential damages may include subsequent losses if those losses were

reasonably foreseeable and have the requisite nexus to the wrong. Arthur Andersen v.

Perry Equip. Corp., 945 S.W.2d at 817.

       Finally, an instruction failing to inform the jury of the proper measure is defective

and subject to reversal. Id. (stating that “[b]ecause the charge failed to instruct the jury

on the proper measure of direct damages, the submission was reversible error”). With

this said, we turn to the circumstances before us.

       First, the instruction directed the jury to begin its calculation by considering the

“present” and “future” value of the Kinsels’ interest in the ranch. Omitted from it was

any restriction obligating the jury to focus on values at the time of the fraud. Instead,

the jury was told to assess damages based upon values at the time of trial and in the

future. So, the directive failed to comport with the Supreme Court’s admonishment in

Authur Anderson; that is, it failed to restrict the calculations to the values applicable at

the time of the sale or transaction induced by the fraud.

       Second, the Kinsels sought their out-of-pocket loss. To realize this, one need

only read the passage in their brief wherein they argued that “[a]warding [them] the

‘present and future interest’ value in the Ranch proceeds is an appropriate out-of-pocket

measure of damages.”        (Emphasis added).        As previously stated, out-of-pocket

damages constitute the difference between the value of what they relinquished due to

the fraud and what they received. And, again, the purported fraud here consisted of

being induced to join Lesey in selling their respective interests in the ranch based upon

the falsehood that she needed money to subsist. Given this framework, their out-of-



                                            13
pocket damages would be the difference between the value of their interest in the land

and the value of what they received from the sale at the time of the fraud. Yet, that is

not what the jury was asked to measure. Instead, the trial court told it to measure

damages by calculating the difference between the value of their respective present and

future interests in the ranch. That this was also the same instruction and measure of

damages submitted in relation to the claim for tortuously interfering with their inheritance

rights is most telling. Via the latter claim, the Kinsels sought to recover their alleged

share of Lesey’s interest in the ranch (or its sales proceeds) had it remained in trust at

the time of her death in the future. That is not the difference between the value of what

they relinquished and received at the time of the fraud.

       Again, the jury was not measuring damages based on the fraud perpetrated on

the Kinsels, i.e. their being induced to sell their respective interests in the ranch via a

misrepresentation. It was measuring damages in relation to the loss each experienced

due to Lesey amending the terms of her trust. That was improper, and the trial court

erred in telling the jury to do so.

       The Kinsels attempted to justify the instruction by arguing that “[t]he Defendants

also promised . . . as part of their pitch to sell the Ranch, that the proceeds from the

sale of the Ranch would be put in a trust and then distributed to [the] Kinsels in shares

proportionate with the distribution of the Ranch. Despite those representations, the

Defendants neither arranged for that, nor intended to. As a result of the Defendants’

actions, they cost the Kinsels that value.”          Yet, the specific act of fraud or

misrepresentation alleged in the Kinsels’ live pleading (i.e. the eighth amended

pleading) and upon which trial was conducted and recovery was sought said nothing of



                                            14
that purported misrepresentation.           Nor did the jury charge itself encompass that

particular allegation. It simply alluded to a misrepresentation about Lesey’s financial

needs. We cannot now use some instance of fraud outside the scope of the pleadings

and omitted from the charge to supplement or otherwise expand the damages

recoverable by the Kinsels. This is especially so when the Kinsels failed to illustrate

that the matter was tried with the consent of all involved.                See Hampden Corp. v.

Remark, Inc., 331 S.W.3d 489, 495 (Tex. App.—Dallas 2010, pet. denied) (stating that

matters outside the scope of the pleadings may be deemed as tried by consent when it

appears from the record that the issue was actually tried).

       As previously mentioned, an instruction submitting the wrong measure of

damages is error. And, because it is clear that the damages awarded were founded

upon the wrong measure, the error was harmful.

       Sufficiency of the Evidence

       Next, we address the sufficiency issues urged by Lindsey, Oliver and Branyon.

They contend that either no evidence or factually insufficient evidence supports the

jury’s verdict.1 The first aspect of the argument we discuss pertains to injury or damage,

the second to conspiracy and the third to undue influence and mental capacity.

       Fraud Damages

       To recover for fraud, one must prove that 1) a material representation was made;

2) the representation was false; 3) when the representation was made, the speaker

knew it was false or made it recklessly without any knowledge of the truth and as a

positive assertion; 4) the speaker made the representation with the intent that the other

       1
           The pertinent standards of review are discussed in City of Keller v. Wilson, 168 S.W.3d 801
(Tex. 2005) (legal sufficiency) and Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998)
(factual sufficiency). We will apply them here.

                                                  15
party should act upon it; (5) the party acted in reliance on the representation; and 6) “the

party thereby suffered injury.” Italian Cowboy Partners, Ltd. v. Prudential Ins. Co., 341

S.W.3d 323, 337 (Tex. 2011). We focus on the last element, that pertaining to injury or

damage.

         Given that the Kinsels sought to recover their out-of-pocket loss, we searched

the record for evidence illustrating the difference between the value of what they

relinquished and the value of what they received at the time of the fraud. What each

Kinsel relinquished due to the representations in question was the interest each owned

in the ranch at the time of the fraud. However, no one cited us to evidence illustrating

what the value of that interest was at that time. Nor did we find such evidence of

record. Similarly missing was evidence illustrating that the percentage of the sales

proceeds each received was less than the value of the interest each sold. One may

account for the absence of such evidence by considering what the Kinsels actually

sought to recover, that being a share of ranch sales proceeds held in trust for Lesey.

But, again, that was an improper measure for out-of-pocket loss.

         Because the record contains no evidence of the Kinsels suffering out-of-pocket

loss, the verdicts awarding each Kinsel damages for fraud cannot stand.                This

deficiency of evidence has one other effect. It vitiates the need to remand the fraud

claim for a new trial due to the aforementioned inaccurate damage instruction. We so

conclude in view of the writings in St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex.

2002).

         In St. Joseph, the dispute involved the theory of joint enterprise, and our

Supreme Court was asked to determine whether an aspect of the jury charge was



                                            16
inaccurate. It eventually held that the instruction improperly defined an element of the

theory, that element being a community of pecuniary interest in the common purpose

among the members of the group. Id. at 529. Thereafter, the court was asked to

assess whether the verdict encompassing on that particular element enjoyed legally

sufficient evidentiary support. The court answered in the negative. Id. at 534. This

absence of evidence then led the Supreme Court to state: “rather than remand this

theory of recovery to the trial court to be retried using the appropriate jury instructions,

we render judgment that the Wolffs take nothing against St. Joseph under a joint

enterprise theory.” Id. In other words, the need for a new trial due to the improper jury

charge was vitiated by the absence of evidence on that particular element.

       So, like the court in St. Joseph, we too have found an improperly worded element

of the claim defined in the jury charge which normally would require a new trial. Yet,

because the record contained no evidence establishing the element (as properly

defined), there is no need to remand. Instead, we render judgment denying the Kinsels

recovery for fraud.

       Conspiracy

       As for the claim of conspiracy, civil conspiracy is akin to a derivative tort. Tilton

v. Marshall, 925 S.W.2d 672, 680-81 (Tex. 1996); accord, Chu v. Hong, 249 S.W.3d

441, 444 (Tex. 2008) (stating that “[c]onspiracy is a derivative tort requiring an unlawful

means or purpose, which may include an underlying tort”); see also, In re Lipsky, 411

S.W.3d 530, 549 (Tex. App.—Fort Worth 2013, orig. proceeding) (stating that

“[r]ecovery for civil conspiracy is not based on the conspiracy but on the underlying

tort”). That is, “a defendant's liability . . . depends on participation in some underlying



                                            17
tort for which the plaintiff seeks to hold at least one of the named defendants liable.”

Tilton v. Marshall, 925 S.W.2d at 680-81. Our having rejected the claim of tortious

interference with inheritance rights and having found no evidence to support recovery

for fraud, neither tort may support the jury’s finding that Lindsey and the others engaged

in a civil conspiracy against the Kinsels. In other words, neither tort provides evidence

of a wrong prerequisite to a valid conspiracy finding.

       Undue Influence and Lack of Mental Capacity

       As for the allegations of undue influence and lack of mental capacity, they relate

to Lesey’s mindset when she sold the ranch and executed the fourth and fifth

amendments to her trust. The two amendments were signed on February 23, 2007 and

August 12, 2008, while she executed the sales contract and deed on April 15, 2008 and

July 22, 2008. Lesey died on August 22, 2008, at the age of ninety-five. The jury found

that Lesey lacked legal capacity when each of those documents was signed. It also

concluded that Lindsey, Oliver and Branyon exercised undue influence over her when

she made those decisions. According to Lindsey, Oliver and Branyon, the findings

lacked sufficient legal and factual evidentiary support. We first address the topic of

legal capacity.

       Documents executed by one who lacks sufficient legal or mental capacity may be

avoided. In re Morgan Stanley & Co., Inc., 293 S.W.3d 182, 193 (Tex. 2009). To have

mental capacity, the person executing the instrument must have had sufficient mind

and memory to understand the nature and effect of his act at the time of the document’s

execution. Decker v. Decker, 192 S.W.3d 648, 652 (Tex. App.—Fort Worth 2006, no

pet.); accord, Sanders v. Sanders, No. 02-08-00201-CV, 2010 Tex. App. LEXIS 8308,



                                            18
at *5 (Tex. App.—Fort Worth October 14, 2010, no pet.) (mem. op.) (stating that “[t]o

show mental incapacity, a person seeking to set aside an agreement must show that

she did not understand the nature and consequences of her act at the time the

agreement was made”). Capacity may be assessed by considering such factors as 1)

the person’s outward conduct demonstrating an “inward and causing condition,” 2)

preexisting external circumstances tending to produce a special mental condition, and

3) the person’s mental condition before or after the relevant point in time from which her

mental capacity or incapacity may be inferred. Sanders v. Sanders, 2010 Tex. App.

LEXIS 8308, at *5-6; accord, Decker v. Decker, 192 S.W.3d at 652 (stating that

evidence of a person’s capacity before and after the event in question may be relevant

when establishing capacity at the time of the event).    Finally, expert testimony on the

matter is not required since the requisite proof regarding mental capacity may reside

within the common knowledge and experience of laypersons. Decker v. Decker, 192

S.W.3d at 652.

      Here, evidence of record illustrates that as of 2006, Lesey underwent twenty-four

hour care. She was ninety-three years old at the time, and while undergoing such care,

she 1) grew more infirm, 2) experienced macular degeneration, 3) became legally blind,

4) had to have others give her the pills she had to take, 5) had to have others manage

her doctors' care and her finances, 6) became extremely frail, 7) required assistance in

walking, bathing, dressing, and eating, 8) became incontinent of urine or urinated on

herself, 9) experienced continual confusion and forgetfulness, 10) experienced

agitation, and 11) experienced depression.       So too did she begin to experience

congestive heart failure in 2007 and grow less responsive to the medications



                                           19
administered to ameliorate that condition. The condition resulted in her having renal

insufficiency or a precursor to renal failure. Consequently, fluid was pooling in her body,

and her heart was unable “to clear it out.” That, according to a physician who testified,

could affect a person's mental state “[w]hen it gets that significant . . . .”

       One witness testified that in “late 2006, [Lesey] was clearly becoming more and

more confused and forgetful, and she would forget things that she had recently done or

did. And that continued into 2007. And I was over there in February of 2007. And we

got there and she was very, very agitated and confused.” The February date alluded to

was the 27th, and the witness recalled Lesey saying that she thought she “‘signed

something,’” and “‘I don't know what I've signed.’" When asked whether she had a copy

of the document, Lesey said “no.” When asked if she knew “‘what it is that you signed,’"

Lesey answered "No." The same reply was made when asked if she knew when she

signed the document. As previously mentioned, the fourth amendment to Lesey’s trust

had been signed four days earlier. It was that amendment that separated the surface

and mineral estate of Lesey’s ranch interest and granted the minerals to Lindsey and

Oliver upon termination of the trust.

       Other evidence illustrated that Lesey suffered from dementia in 2007.           The

aforementioned physician opined that by the end of February 2007, Lesey “had mild to

moderate dementia and cognitive impairment.” She was “losing brain cells and if you

keep losing so many, some days your brain cells that you have left function better than

other days.” Nonetheless, Lesey “still ha[d] a significant limitation.” The doctor, further,

testified that because of her dementia and cognitive impairment, Lesey “didn't have the

mental capacity to understand what -- even to call up an attorney and say she wanted to



                                               20
contract -- or transact any business, follow through, all that. She didn't have the

executive functioning nor the overall mental capacity to do that.” And, when asked

“when you have good and bad days, does that mean you spike up high enough that you

then could execute some sort of contract . . . ,” the doctor answered: “[n]o, not with

someone with dementia. It may be that you have a day where you can kind of scribble

out your signature if someone is telling you to do it, but as far as to overall comprehend

and understand, if you think about – no . . . .” Other evidence appears of record

describing Lesey’s bouts of confusion, dementia, and physical limitations before, during

and after the execution of the instruments attacked here.

        One can also look at the appearance of her signature over time as evidence of

her infirmity. It had degraded to little more than a scribble of three letters when she

signed the fifth-amendment days before her death.

        The foregoing constitutes some evidence upon which reasonable minds could

conclude that Lesey lacked sufficient mind and memory to understand the nature and

effect of her acts at the time she executed the trust amendments and sales instruments

at issue. And, upon considering the record as a whole, we cannot say that a jury’s

decision so concluding was overwhelmed by contrary evidence which rendered the

finding manifestly unjust or wrong. So, we overrule the sufficiency complaints levied

against the jury’s verdict finding Lesey mentally incapacitated.2



        2
             Having so upheld that finding, we need not also determine whether the finding that Lesey fell
prey to undue influence also had sufficient evidentiary support. This is so because implicit in the concept
of undue influence lies the existence of mental or testamentary capacity. See Rothermel v. Duncan, 369
S.W.2d 917, 922 (Tex. 1963) (stating that “while testamentary incapacity implies the want of intelligent
mental power, undue influence implies the existence of a testamentary capacity subjected to and
controlled by a dominant influence or power”). If a person lacks mental capacity to execute a document,
it is difficult to say that the exertion of influence by another overcame that person’s mental capacity. In
either situation, the document is avoidable.

                                                    21
       Admission of Evidence

       Next, we address complaints regarding the decision to admit certain evidence at

trial. The evidence consisted of the testimony from doctors Cole and Clayton and from

a probate proceeding. While all appellants raise issues regarding the latter evidence,

only Lindsey and Oliver question the former. We address each in turn.

       Dr. Cole

       According to Lindsey and Oliver, the trial court abused its discretion in allowing

Dr. Cole to testify because the physician “never produced a written report.” They also

cite Dennis v. Haden, 867 S.W.2d 48 (Tex. App.—Texarkana 1993, writ denied) to

support their position.   In Dennis, the trial court ordered the defendants to provide

expert reports for all experts they expected to call as witnesses. Id. at 50. That was not

done for one of the experts, and Dennis objected. The trial court overruled the objection

and allowed the expert to testify.     On appeal, the reviewing court agreed that it was

error because “[t]he trial court’s action appears to have occurred in disregard of its own

directives.” Id. at 51. Consequently, it abused its discretion “in allowing [the expert] to

testify after [the defendant] failed to obey the court order by not providing a report . . . .”

Id.

       Here, too, the Kinsels were ordered to provide expert reports, which directive

encompassed Dr. Cole. They did not. When Lindsey and Oliver objected, though, the

trial court refused to permit the doctor to testify as an expert due to the prior order.

Instead, it ruled that “the doctor is confined just to his observations that were reflected in

his records.” It continued by saying: “[a]s far as opinions and so forth that are not




                                              22
reflected in the record, he cannot go there.” Lindsey and Oliver, nonetheless, contend

at bar that:

       Dr. Cole testified at length regarding Lesey’s physical condition, mental
       state, and medications she was taking at various times—all of which are
       necessarily the subject of expert testimony and not mere lay witness
       testimony . . . . Judge Curry’s ruling allowed Dr. Cole to testify as to his
       observations, which were without question shaped by his training as an
       expert, and were expert opinions.

Other than proffering that conclusory averment, neither attempted to explain why the

substance of the doctor’s comments caused him to crossover from a fact witness to an

expert witness. So too did they fail to cite us to the specific testimony they deemed

objectionable. Instead, we were merely referred to forty pages of record and left to

parse through it. Lindsey and Oliver apparently forgot that the burden to prove error on

appeal was theirs, not ours. We have no obligation to parse through the record in

search of tidbits of evidence supporting their argument or otherwise flesh out their

skeletal complaint. This is especially so when, as here, the trial court actually sustained

objections to aspects of Dr. Cole’s testimony that could be considered the rendition of

medical or expert opinion.

       So too was it their obligation to explain why the evidence they were supposed to

cite us to was “necessarily the subject of expert testimony and not mere lay witness

testimony.”    The latter is mere ipse dixcit and ipse dixcit fails to comply with the

mandate of Texas Rule of Appellate Procedure 38.1(i). Per Rule 38.1(i), an appellant

must provide clear and concise argument for the contentions made, with appropriate

citations to authority and the record. Watson v. Tipton, 274 S.W.3d 791, 801 n.31 (Tex.

App.—Fort Worth 2008, pet. denied). Because of the inadequate briefing, this aspect of

the issue was waived.


                                            23
      Dr. Clayton

      Next, we consider the complaint of Lindsey and Oliver about the expert testimony

of Dr. Clayton. They argue on appeal that the trial court erred in admitting her testimony

because 1) “[h]er opinions were not based on knowledge, observation, or opinion as to

the mental condition of her own patient,” 2) “[a]ll she did was read Lesey’s medical

records,” 3) “[h]er opinions were legal conclusions and invaded both the province of the

jury (on the determination of the ultimate fact issue of Lesey’s mental condition at the

times in question and the weight) and the credibility of the testimony of other witnesses

on such matter,” 4) “[h]er testimony also directly contradicted the medical records she

said she read,” and 5) the trial court improperly allowed “Dr. Clayton to testify as to

Lesey’s susceptibility to undue influence.” We overrule the issue.

      First we start with the “opinions” that were purportedly “legal conclusions.” No

specific opinion is mentioned. Nor do Linsdey and Oliver attempt to explain why the

unmentioned opinions are legal conclusions.      Instead, we are left to delve into the

record and choose for ourselves what they may be talking about and then develop our

own rationale for why they may be legal conclusions. As previously mentioned, that is

not our obligation, but rather the burden of an appellant attempting to comply with

appellate rule of procedure 38.1(i). Simply put, this aspect of the issue was waived due

to inadequate briefing.

      Regarding the complaint about the doctor’s opinions not being based on

“knowledge, observation or opinion,” we again are left to guess at the particular opinions

being attacked. While we may be able to offer conjecture about what they may be,

Lindsey and Oliver could have easily specified what they were and then explained (as



                                           24
opposed to simply concluding) how they were inadmissible.              They did not, and

consequently waived this aspect of the issue as well.

       As for the opinions invading the “province” of the jury, again . . . which ones;

neither litigant specifically mentioned them. Nor did either attempt to explain or illustrate

how or why they improperly invaded the “province of the jury.” Indeed, experts often

opine about matters that arguably invade the jury’s province. That tends to be the

purpose of expert testimony . . . to opine on matters requiring expertise (that is, to opine

on scientific, technical or other matters outside common understanding). E.g. TEX. R.

EVID. 702 (stating that if scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise). Furthermore, the rules of evidence

provide that “testimony in the form of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

TEX. R. EVID. 704. So, it is not enough to merely conclude that the expert opinions

(whatever they may be) are inadmissible because they invade the jury’s province

(whatever that may be). Again, this aspect of the issue was waived.

       As for the opinions being inadmissible because they were based on the expert’s

reading of medical records, why an expert cannot develop an opinion based on records

goes unexplained.      The void seems particularly frustrating because experts may

develop opinions based on reading documents provided to them.            E.g. TEX. R. EVID.

703 (stating that facts or data in the particular case upon which an expert bases an

opinion or inference include “those reviewed by” or made known to the expert). So,



                                             25
again, it is not enough to merely conclude that the expert opinions (whatever they may

be) are inadmissible because they were based on medical records reviewed by the

expert. Thus, this aspect of the issue was waived.

      As for the trial court allegedly erring by “allowing Dr. Clayton to testify as to

Lesey’s susceptibility to undue influence,” the complaint is unaccompanied by citation to

authority or explanation. Thus, it too is conclusory, inadequately briefed, and waived.

      As for the complaint about the testimony being inadmissible because it was

contradictory or contradicted by other testimony, we know of no authority holding that

only un-contradicted expert opinions are admissible evidence.        Nor do we know of

authority holding that if others contradict an expert’s testimony the contradiction

somehow renders the expert’s opinion as unreliable and, therefore, inadmissible. And,

interestingly, neither Lindsey nor Oliver cited us to any such authority. Indeed, seldom

do expert opinions go un-contradicted in a lawsuit. If that were not true then there

would be little need for half the experts in the world. This last aspect of the argument is

waived as well.

      Probate Proceeding

      Finally, Branyon, Lindsey and Oliver contend that the trial court erred in admitting

evidence of conduct undertaken by Branyon while attempting to probate Lesey’s estate.

The conduct consisted of his submitting Lesey’s 2004 will for probate and

misrepresenting to the probate court that it was her last will and testament. Purportedly,

“[t]he evidence had no probative value, and any value it may have had was substantially

outweighed by its potential to prejudice [the defendants], and to confuse and mislead

the jury.” We overrule the issue.



                                            26
       Generally, relevant evidence is admissible.      TEX. R. EVID. 402.     Evidence is

relevant if it has any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be

without the evidence. TEX. R. EVID. 401. Yet, even relevant evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, among other things. TEX. R. EVID. 403.

       While invoking the principles encompassed by Rules 401, 402 and 403, Branyon,

Lindsey and Oliver say little if anything about why Branyon’s conduct via the probate of

Lesey’s will was irrelevant or unfairly prejudicial. Nevertheless, we cannot ignore the

fact that Lindsey, Oliver and Branyon were being sued for engaging in a conspiracy,

among other things. The conspiracy allegedly encompassed a scheme to manipulate

an aging and mentally infirm person (Lesey) into divesting the Kinsels of their beneficial

interest in Lesey’s trust, converting that interest into liquid proceeds, and ultimately

giving the several million dollars involved to Lindsey and Oliver. To effectuate that

scheme, Lesey had to execute documents changing the way she previously opted to

dispose of her estate and so execute them at a time when her health and mental

acumen were failing her (or so the Kinsels sought to establish). One of the documents

executed during that time was her 2007 last will and testament. Its execution occurred

in Branyon’s office, and Branyon allegedly spoke with Lesey the day of its execution.

Yet, upon Lesey’s death, Branyon opted to probate a last will and testament she

executed in 2004. In so filing that item for probate, he represented to the probate court

that it was never revoked. And, at the trial of this cause, he testified that he “believe[d]

that it [the 2004 will] was her last will that had not been revoked,” despite assisting



                                            27
Lesey execute the 2007 will three years later. When asked if “one of the reasons you

couldn't revoke a will is if you didn't have any capacity . . . ,” Branyon admitted: “[y]es,

that's one reason.” When asked if “one of the reasons you [Branyon] could have filed it

[the 2004 will] in this particular manner is because Lesey didn't have the capacity to

execute the will or any other document on February 23rd, 2007,” Branyon admitted that

“[t]hat’s a possible explanation.” These admissions implicate an issue incremental to

the validity of claims asserted by the Kinsels. The issue of which we speak is Lesey’s

mental capacity (or lack thereof) to do what Lindsey and the others were having her do.

Given this, the trial court had reasonable basis to conclude that Branyon’s conduct

before the probate court was relevant because it had a “tendency to make the existence

of [a] fact that is of consequence to the determination of the action more probable. . . .”

So too could it have reasonably concluded that any risk of unfair prejudice arising from

that evidence did not substantially outweigh its relevance or probative value. Branyon’s

decision to represent in a court of law and to a judge that the 2004 testament was

Lesey’s last will, could reasonably be interpreted by a fact-finder that he questioned

Lesey’s competence in 2007, irrespective of his later testimony.

       Constructive Trust

       Next, Lindsey and Oliver attack the imposition of a constructive trust on Lindsey’s

“residuary interest” in Lesey’s intervivos trust.    They contend that 1) no evidence

supports the imposition of the constructive trust, 2) the scope of that trust was overly

broad, and 3) the Kinsels had unclean hands due to their participating in the ranch sale

while knowing (or while they reasonably should have known) that Lesey lacked

testamentary capacity. We sustain the issue in part and overrule it in part.



                                            28
       Whether to impose a constructive trust lies within the trial court’s discretion.

Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 859 (Tex. App.—Fort Worth 2005, no pet.)

citing, Wheeler v. Blacklands Prod. Credit Ass’n., 627 S.W.2d 846, 849 (Tex. App.—

Fort Worth 1982, no writ) (stating that the scope and application of a constructive trust is

generally left to the discretion of the court imposing it); accord, Baker Botts, L.L.P. v.

Cailloux, 224 S.W.3d 723, 736 (Tex. App.—San Antonio 2007, pet. denied) (stating the

same). Thus, we review the decision under the standard of abused discretion. Baker

Botts, L.L.P. v. Cailloux, 224 S.W.3d at 736. Under that standard, a decision is wrong

when it is arbitrary, unreasonable, or made without regard to guiding legal principles.

Id.; Menefee v. Ohman, 323 S.W.3d 509, 512 (Tex. App.—Fort Worth 2010, no pet.).

       That a constructive trust constitutes an equitable remedy and exists to prevent

unjust enrichment is clear.     Everett v. TK-Taito, L.L.C., 178 S.W.3d at 859.          Its

availability is generally dependent upon proof of 1) a breach of a special trust, fiduciary

relationship or fraud, 2) the wrongdoer being unjustly enriched, and 3) “tracing to an

identifiable res.” Id. Yet, much is dependent on the equities of the circumstances. Id.

And, those circumstances may serve to broaden the situation in which the relief may be

granted.

       As our Supreme Court stated in Meadows v. Bierschwale, 516 S.W.2d 125 (Tex.

1974), constructive trusts “have the very broad function of redressing wrong or unjust

enrichment in keeping with basic principles of equity and justice.” Id. at 131. Depending

on the circumstances, a transaction “may . . . provide the basis for a constructive trust

where one party to that transaction holds funds which in equity and good conscience

should be possessed by another.” Id. So too did it state that “there is no unyielding



                                            29
formula to which a court of equity is bound in decreeing a constructive trust, since the

equity of the transaction will shape the measure of relief granted.” Id. The remedy is so

flexible that it allows the trial court to “‘indulge in presumptions and even pure fiction’” to

“‘satisfy the demands of justice.’” Id.

       The rather broad nature of the remedy at issue was further explained by the Fort

Worth Court of Appeals in Wheeler v. Blacklands Prod. Credit Ass’n. There, we were

told that:

       “whenever the legal title to property, real or personal, has been obtained
       through actual fraud, misrepresentations, concealments, or through undue
       influence, duress, taking advantage of one's weakness or necessities, or
       through any other similar means, or under any other similar circumstances
       which render it unconscientious for the holder of the legal title to retain and
       enjoy the beneficial interest, equity impresses a constructive trust on the
       property thus acquired in favor of the one who is truly and equitably
       entitled to the same, although he may never perhaps have had any legal
       estate therein. . . .”


Wheeler v. Blacklands Prod. Credit Ass’n, 627 S.W.2d 846, 849, (Tex. App.—Fort

Worth 1982, no writ) (quoting, 4 Pomeroy’s Equity, § 1053 (5th Ed)). The court further

observed that the form and variety of these types of trusts are “’practically without limit’”

and their principle is “‘applied wherever it is necessary for the obtaining of complete

justice’” even though “‘the law may also give the remedy of damages against the wrong-

doer.’” Id.

       Appearing of record here are circumstances that fit within the parameters of

Wheeler and Meadows.          Lesey intended to leave her interest in the ranch to the

children of her late husband. Her intervivos trust encompassed such an intent. Under

it, J. Frank Kinsel, Sr., J. Frank Kinsel Jr., Joe Bob Kinsel, Sr., Catherine Collins, and

Carole Edwards were to receive a 10% interest in the realty.            The remaining 10%


                                              30
owned by Lesey was to go to other heirs of E.A. Kinsel. The residuary of the trust was

to go to Lindsey.   Shortly after Lesey’s arrival in Fort Worth, though, Oliver began

calculating the value of the ranch. Thereafter, Lindsey engaged an attorney (Branyon)

to assist in the sale of that property. To maximize the sale price, Lindsey and Branyon

endeavored to have all those owning an undivided interest in the entire acreage to join

in the sale.   Other evidence appears of record illustrating that in effectuating their

purpose, Lindsey and Branyon led the Kinsels to believe that Lesey needed the money.

Withheld by Lindsey and Branyon, according to the record, was Lesey’s ownership of

over a million dollars in liquid, non-ranch related assets available for her care. See

Miller v. Recovery Sys., No. 02-12-00468-CV, 2013 Tex. App. LEXIS 11851, at *17

(Tex. App.—Fort Worth September 19, 2013, pet. denied) (mem. op.) (stating that

“[s]everal courts of appeals, including this one, have held that a duty to disclose may

also arise when a party makes a partial disclosure that, although true, conveys a false

impression”); Anderson, Greenwood & Co. v. Martin, 44 S.W.3d 200, 212-13 (Tex.

App.—Houston 2001, pet. denied) (recognizing that fraud may arise from the failure to

disclose material information when the information actually disclosed conveys a false

impression). Believing what they were told, the other ranch owners agreed to sell.

      Before the ranch was sold, Lindsey, under the auspices of pursuing Lesey’s

wishes, arranged for the surface and mineral estates of Lesey’s portion of the land to be

severed. About this same time, Lesey also happened to decide that the aforementioned

mineral interest should go to Lindsey and Oliver, and Lindsey arranged for the

amendment of Lesey’s trust to effectuate that supposed intent. Once the land was sold,

Lindsey and Branyon discussed another modification of the trust to remove reference to



                                           31
E.A.’s heirs as being the ultimate beneficiaries of the land.                   Once the trust was

amended to reflect that change (which happened to be days before Lesey died),

Branyon informed Lindsey that he would withhold disclosure of the amendment from

others. 3

        That Lesey lacked the requisite mental capacity to effectuate the foregoing

transactions and amendments pursued by Lindsey is established by the evidence. That

those transactions and amendments resulted in both Lindsey and Oliver reaping much

more from their aunt than they would have before she fell under their supervision is also

illustrated by the evidence. That those transactions and changes also resulted in the

Kinsels receiving much less than what Lesey had written into her trust before being

subjected to the care of Lindsey and succumbing to the effects of age, is also beyond

reasonable dispute.4

        As previously mentioned, a constructive trust may be imposed to redress wrong

doing and unjust enrichment in accord with principles of equity and justice.                  Meadows

v. Bierschwale, supra. Included within its parameters are circumstances wherein title or

ownership of realty or personalty is obtained through actual fraud, misrepresentations,

concealments, undue influence, the “‘taking advantage of one's weakness or

necessities,’” or “‘under any other similar circumstances which render it unconscientious

        3
           One Kinsel also testified he wanted to meet with Lesey and Branyon regarding the disposition of
the sales proceeds. Lesey allegedly told him that the proceeds were to go to various Kinsel members
upon termination of the trust. This testimony may put into context why Lindsey and Branyon endeavored
to 1) have Lesey sign the fifth-amendment to the trust that effectively removed reference to the Kinsels’
interest in the ranch and 2) withhold the disclosure of that amendment.
        4
           Nor can we escape the irony inherent in Lindsey and Oliver arguing here that because the
Kinsels knew or should have known about Lesey’s incapacity, they should be unable to recover. No
doubt Lindsey and Oliver would fall within the same category; after all they purportedly were interacting
with their aunt on a rather regular basis. Yet, neither suggest that they should be denied the largesse
they happened to reap after Lesey lost her mental capacity to act for herself.


                                                   32
for the holder of the legal title to retain and enjoy the beneficial interest.’” Wheeler v.

Blacklands Prod. Credit Ass’n, 627 S.W.2d at 846. Those wrongs afford a trial court

opportunity to use a constructive trust to divest the legal owner of the property in favor

of “‘the one who is truly and equitably entitled to the same. . . .’” Id. at 849. That said,

we conclude that the trial court had before it evidence of record from which it could

reasonably deduce that Lindsey and Oliver uttered misrepresentations to the Kinsels

and took advantage of Lesey’s incapacity for the purpose of reaping personal gain to

the detriment of the Kinsels. The trial court did not abuse its discretion by impressing a

constructive trust upon those gains in favor of the people who would have received the

ranch had the invalid sale and amendments not occurred.

       As for the allegation that the constructive trust was overly broad, we agree.

Lesey designated Lindsey as the residual beneficiary of her intervivos trust before

losing her mental capacity to act. No one denied that. Furthermore, the impropriety at

issue encompassed the ranch and its sales proceeds, not the entire trust corpus. Yet,

the trial court impressed the constructive trust on “Jane O. Lindsey's interest in the Trust

and any monies that Jane O. Lindsey would be legally entitled to from the Trust. . . .”

Reading those words as written, one cannot escape the conclusion that they snare

more than merely the ranch and its proceeds.              That is, the constructive trust

encompasses all interests Lindsey had in the intervivos trust, not simply any interest

she may have obtained in the ranch and its proceeds.

       Again, a constructive trust serves to give property to those equitably entitled to it.

To abide by that purpose, the trial court had to fashion a constructive trust

encompassing only the property to which the Kinsels were equitably entitled, that is, the



                                             33
ranch and its sales proceeds. In creating a constructive trust exceeding that scope and

encompassing all interests Lindsey had in the intervivos trust, the trial court’s decision

failed to comport with controlling principles of law and constituted an abuse of

discretion. We will modify the judgment to correct the error and limit the constructive

trust simply to the ranch and its sales proceeds. By “ranch,” we mean as it existed

before the execution of those trust amendments which Lesey lacked the capacity to

execute, and they include the fourth amendment severing the mineral and surface

estates.

       As for the matter of unclean hands, the Kinsels suggest that it should be rejected

since the theory was not affirmatively pled. Yet, it need not have been pled as an

affirmative defense according to our Supreme Court. Through Best Buy Co. v. Barrera,

248 S.W.3d 160 (Tex. 2007) (per curiam), we were told that the concept is not a matter

of avoidance but rather “relates to the equities necessary to determine liability in the first

instance.” Id. at 163. Moreover, knowledge of the improprieties involved is relevant

when weighing the equities and determining in whose favor they fall. See id. (wherein

the equitable claim of money had and received was being pursued and stating that “the

defendant was entitled to inquire into individual class members' knowledge and

understanding about the disputed charge in order to demonstrate in whose favor the

equities weighed”). Apparently, the defendant is free to present any facts and raise any

defenses that would deny the claimant’s right or show that in equity and good

conscience, the claimant should not recover. Id.

       As for the doctrine of unclean hands itself, it requires one who seeks equity to

come with “‘clean hands.’” Grohn v. Marquardt, 657 S.W.2d 851, 855 (Tex. App—San



                                             34
Antonio 1983, writ ref’d). In other words, a court “acting in equity will refuse to grant

relief to a plaintiff who has been guilty of unlawful or inequitable conduct with regard to

the issue in dispute.” Id. And, the decision of whether a party has unclean hands lies

within the trial court’s discretion. Id. Yet, the rule is not absolute. Omohundro v.

Matthews, 161 Tex. 367, 341 S.W.2d 401, 410 (Tex. 1960); Dunnagan v. Watson, 204

S.W.3d 30, 41 (Tex. App.—Fort Worth 2006, pet. denied). Nor can it “be used . . . if the

unlawful or inequitable conduct of the plaintiff is merely collateral to the plaintiff's cause

of action.” Grohn v. Marquardt, 657 S.W.2d at 855; accord, Davis v. Grammer, 750

S.W.2d 766, 768 (Tex. 1988) (stating that “[t]he ‘unclean hands’ doctrine cannot be

used as a defense [where the plaintiff’s] unlawful or inequitable conduct is merely

collateral to her cause of action”).

       Moreover, the party invoking the doctrine “‘must show that he himself has been

injured by such conduct . . . .’” Omohundro v. Matthews, 341 S.W.2d at 410, quoting, 2

Pomeroy’s Equity Jurisprudence p. 99 (4th ed.); Dunnagan v. Watson, 204 S.W.3d at

41; Grohn v. Marquardt, 657 S.W.2d at 855. “‘The wrong must have been done to the

defendant himself and not to some third party.’” Omohundro v. Matthews, 341 S.W.2d

at 410. And, such injury does not exist where the purported wrong actually aided the

one invoking the doctrine. Id. (rejecting application of the doctrine invoked by

Omohundro and concluding that “[a]ny improper use of information obtained from their

employers by Matthews or Thompson aided rather than injured Omohundro and will not

prevent recovery here”).

       Again, the unclean hands broached by Lindsey and Oliver concerned the Kinsels’

knowledge of Lesey’s mental incapacity when agreeing to join in the sale of the ranch.



                                             35
Assuming arguendo that such constituted a wrong, neither Lindsey nor Oliver discuss

how they suffered any injury from it. Rather, the trial court could have concluded, quite

reasonably, that the two benefitted from the Kinsels having such knowledge. It was

because they joined the sale that Lindsey succeeded in obtaining the large bonanza

she sought to keep. So, as in Omohundro, the purported wrong committed by the

Kinsels “will not prevent recovery here.”

       Attorney’s Fees

       Next, we address the issue of attorney’s fees awarded the Kinsels. The jury

awarded the Kinsels an attorney’s fee of $800,000 for work through trial. No award was

made for work through appeal to an intermediate appellate court or a petition to the

Supreme Court. According to Lindsey, Oliver and Branyon, the trial court purportedly

erred in awarding the $800,000 sum because the Kinsels failed to produce written fee

agreements when requested through discovery, the evidence was both legally and

factually insufficient to support the award, and the Kinsels failed to segregate those fees

recoverable by statute from those that were not. We sustain the issue in part.

       Regarding the disclosure of fee agreements, it appears from the record that two

firms represented the Kinsels or various members of them. One firm had no written fee

agreement with its clients, and cannot be faulted for not producing it. The other firm had

a short letter agreement with one of the Kinsels, and though the testifying attorney

represented that he was “sorry if it wasn't produced,” he also said that “we produced all

our fee agreements.”     (Emphasis added).       The trial court eventually overruled the

objection. Though the basis for overruling the objection went unmentioned, the trial

court had evidence before it upon which to reject the contention that the agreement was



                                            36
not produced.    Given that, we cannot say that the court abused its discretion in

permitting the Kinsels to proffer evidence on the issue of attorney’s fees.

       As for the sufficiency of the evidence supporting the award, we note that the

Kinsels prayed for attorney’s fees under § 27.01 of the Texas Business and Commerce

Code and § 37.009 of the Texas Civil Practice and Remedies Code.              The former

provides that anyone who commits fraud in a real estate transaction “shall be liable to

the person defrauded for reasonable and necessary attorney's fees, expert witness

fees, costs for copies of depositions, and costs of court.” TEX. BUS. & COMM. CODE ANN.

§ 27.01(e) (West 2009). The latter statute involves declaratory actions and permits the

trial court to “award costs and reasonable and necessary attorney's fees as are

equitable and just.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (West 2015). At trial,

mention was also made about the recovery of fees under the Property Code. Arguably,

the provision alluded to was § 114.064(a) of that Code, which allows the trial court to

“make such award of costs and reasonable and necessary attorney's fees as may seem

equitable and just.” TEX. PROP. CODE ANN. § 114.064(a) (West 2014). Because we

concluded that the trial court erred in granting recovery upon the fraud claim, the scope

and application of § 27.01 of the Business and Commerce Code need not be

considered here. Instead, we limit our review to the application of § 37.009 of the Civil

Practice and Remedies Code, and because the analysis is the same for § 114.064(a)

we incorporate it into our discussion of § 37.009.

       Whether fees are reasonable and necessary constitutes a question of fact, and

their reasonableness and necessity are subject to review “for sufficiency of the

evidence.” Sundance Minerals, L.P. v. Moore, 354 S.W.3d 507, 513 (Tex. App.—Fort



                                            37
Worth pet. denied). Moreover, various factors are considered when analyzing whether

a fee is reasonable and necessary. State & County Mut. Fire Ins. Co. v. Walker, 228

S.W.3d 404, 408 (Tex. App.—Fort Worth 2007, no pet.). They include such things as:

1) the time and labor required; 2) the novelty and difficulty of the questions involved; 3)

the skill required to perform the legal service properly; 4) the likelihood that the

acceptance of the employment precludes other employment by the lawyer; 5) the fee

customarily charged in the locality for similar legal services; 6) the amount involved and

the results obtained; 7) the time limitations imposed by the client or by the

circumstances; 8) the nature and length of the professional relationship with the client;

9) the experience, reputation, and ability of the lawyer or lawyers performing the

services; and 10) whether the fee is fixed or contingent on results obtained or

uncertainty of collection before the legal services have been rendered. Id.

      Each of the foregoing indicia, though, need not be established by evidence. Id.

Indeed, it seems as though minimal evidence is sufficient to support an attorney’s fee

award. Our Supreme Court’s opinion in Garcia v. Gomez, 319 S.W.3d 638 (Tex. 2010)

tends to exemplify that. The evidence there consisted of an attorney testifying “about

his experience” and opining that particular sums for trial and appeal were reasonable

and necessary fees.      Though acknowledging that the proffered evidence “lacked

specifics,” the court, nonetheless, concluded that “it was not, under these

circumstances, merely conclusory.” Id. at 641. More importantly, it sufficed to support

the award, or as stated by the court, “[i]t was some evidence of what a reasonable

attorney's fee might be in this case.” Id. This was so, in the court’s estimation, because

an attorney's testimony about the reasonableness of his own fees is unlike other expert



                                            38
witness testimony. Id. “Although rooted in the attorney's experience and expertise, it

also consists of the attorney's personal knowledge about the underlying work and its

particular value to the client.” Id. The court further noted that the less than specific

evidence was not “objectionable as merely conclusory because the opposing party, or

that party's attorney, likewise has some knowledge of the time and effort involved and if

the matter is truly in dispute, may effectively question the attorney regarding the

reasonableness of his fee.” Id.

      Appearing of record here is testimony from legal counsel 1) about their

respective experience, 2) generally describing the work performed by each, 3) alluding

to the hours expended in preparing, 4) alluding to fees of either $920,000 or $950,000

being reasonable through trial of the cause, a fee of $75,000 being a reasonable fee if

the judgment were appealed to an intermediate court of appeals, a fee of $50,000 being

a reasonable fee if a petition for review were filed with the Supreme Court, and a fee of

$25,000 being reasonable if oral argument before the Supreme Court occurred, 5)

mentioning their respective hourly rates, 6) describing in broad terms the factors

considered in concluding that the aforementioned fees were reasonable, and 7) opining

that they loss opportunity to work on other matters. Though lacking in specifics too, the

foregoing equated, at the very least, the quantum of evidence found sufficient by the

Supreme Court in Garcia.     Consequently, we cannot find it insufficient here. Nor can

we say that the sum awarded is manifestly unjust when tested against the entire

evidence.

      As for the matter of segregation of recoverable from unrecoverable fees, that

normally is required. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex.



                                           39
2006); AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 521 (Tex. App.—

Fort Worth 2009, no pet.). An exception exits, however. It arises when discrete legal

services advance both recoverable and unrecoverable claims that are so intertwined

that the fees need not be segregated. Tony Gullo Motors I. L.P. v. Chapa, 212 S.W.3d

at 313-14. The burden to illustrate that the exception applies lies with the fee claimant.

Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991). And, it is not satisfied

by simply suggesting that the causes of action for which fees are and are not

recoverable required proof of the same set of facts and circumstances.             Allan v.

Nersesova, 307 S.W.3d 564, 573 (Tex. App.—Dallas 2010, no pet.). In other words,

intertwined facts alone do not make unrecoverable fees recoverable.            Tony Gullo

Motors I, L.P. v. Chapa, 212 S.W.3d at 313-14.

       At bar, no one denies that attorney’s fees are generally unrecoverable for

pursuing common law fraud or the purported claim of tortious interference with

inheritance rights. That the Kinsels failed to prove a statutory fraud involving realty (as

we alluded to above) also vitiated their ability to recover fees incurred in prosecuting

that claim.

       Yet, no one denies that fees were recoverable for claims encompassed by the

demand for declaratory relief. Within the latter category, fell the validity of the trust

amendments and sale of trust property once Lesey became legally incapacitated. See

TEX. CIV. PRAC. & REM. CODE ANN. § 37.005 (West 2015) (stating that a “person

interested as . . . a . . . devisee, legatee, heir, next of kin, or cestui que trust in the

administration of a trust or of the estate of a decedent, an infant, [or] mentally

incapacitated person . . . may have a declaration of rights or legal relations in respect to



                                            40
the trust or estate . . . to determine any question arising in the administration of the trust

or estate, including questions of construction of wills and other writings”).

       So, what we have before us are circumstances that would normally trigger the

duty to segregate. That is, the Kinsels pursued claims for which fees could and could

not be awarded. But, to avoid the duty to segregate, their legal counsel described the

claims as “inextricably intertwined.” In explaining what they meant, one testified that

“whatever cause of action the plaintiffs have in this case, the facts basically relate to

each of the causes of action. There's not a whole lot of difference between them as far

as the facts go. It's the different aspects of the law that apply to the facts that are

different, but the facts and basically everything is intertwined and you can't separate

those things as between the causes of action.” The explanation rings false, however.

       Attacking the validity of the trust amendments and Lesey’s effort to sell her ranch

interest depended upon establishing the status of her own mental abilities. In turn,

proving the fraud claims depended upon illustrating not only that Lindsey, Oliver and

Branyon uttered false statements to the Kinsels but also that the Kinsels relied on those

utterances to their detriment. It mattered not to Lesey’s legal capacity whether Lindsey,

Oliver and Branyon defrauded the Kinsels. It mattered not to the claim of fraud that

Lesey lost her mental ability to act. Simply put, the causes of action were distinct, and

facts necessary to prove each did not overlap. In other words, the time and effort

expended to prove fraud did not advance the claim regarding Lesey’s loss of legal

capacity, and vice-versa. And, while the claims may have arisen within a common time

period and involved a ranch owned by both Lesey and the Kinsels, that was not enough

to render the causes of action inextricably intertwined.



                                             41
       The same is also true of the allegation pertaining to tortious interference with

inheritance rights.   Assuming arguendo that it was a recognized chose-in-action,

proving it here was not dependent upon or necessarily affected by Lesey’s incapacity.

       So, the record at bar failed to establish that discrete legal services provided by

those representing the Kinsels advanced both claims for which fees were recoverable

and claims for which they were not. Segregation was necessary, and the failure to do

so obligates us to remand the issue of segregation for new trial. See AMX Enters.,

L.L.P. v. Master Realty Corp., 283 S.W.3d at 522 (holding that when segregation is

required but not done then remand to calculate the segregated award is necessary).

       Cross Appeal - Denial of Appellate Attorney’s Fees

       There exists one last issue necessitating our attention. It encompasses the jury’s

failure to award attorney’s fees to the Kinsels should they have to participate in appeals

to an intermediate appellate court and the Supreme Court. Allegedly, they had proved

entitlement to same as a matter of law, and the trial court erred in failing to award the

fees despite the verdict. We overrule the issue.

       As previously mentioned, legal counsel for the Kinsels opined about what the

reasonable fees would be after trial and through appeal to the Supreme Court. Yet,

neither attorney testified about the amount of time that would be expended in those

endeavors. Nor did either attorney describe 1) their experience in handling appellate

matters, their familiarity with appellate matters, 2) the factors they considered in deriving

their opinions about the appellate fees, 3) the appellate fee customarily charged in the

locality, or 4) the loss of other work they may encounter due to defending or prosecuting

an appeal. Nor did either attempt to describe for the jury what was involved in handling



                                             42
an appeal. To say the least, their opinions on the matter were lacking in specifics to a

much greater degree than their opinions pertaining to fees incurred through trial.

       To support “an award of appellate attorneys' fees, there must be evidence of the

reasonableness of the fees pertaining to the appellate work.” Jones v. Am. Airlines,

Inc., 131 S.W.3d 261, 271 (Tex. App.—Fort Worth 2004, no pet.). Assuming arguendo

that the factually unsubstantiated utterances by legal counsel constitute some evidence

of what a reasonable appellate fee could be, it hardly proved what such a fee was, as a

matter of law. Given the sparse record before it, the jury could well have decided that it

was not afforded sufficient basis upon which to calculate reasonable attorney’s fees

related to subsequent appeals. And, we cannot fault that decision or the trial court’s

refusal to ignore it. Accordingly, the cross-issue is overruled.

       We reverse the judgment of the trial court to the extent it 1) recited that Lindsey,

Oliver, Branyon, and Jackson Walker committed or were part of a conspiracy to commit

fraud, statutory fraud, and tortious interference with inheritance rights, 2) awarded

damages to the Kinsels against Lindsey, Oliver, Branyon and Jackson Walker, jointly

and severally, for committing or conspiring to commit fraud, statutory fraud, and tortious

interference with inheritance rights, and 3) awarded attorney’s fees of $800,000 in favor

of the Kinsels. We render judgment ordering that the Kinsels take nothing against

Lindsey, Oliver, Branyon, and Jackson Walker for committing or conspiring to commit

fraud, statutory fraud, and tortious interference with inheritance rights.     We modify

Paragraph 4(f) of the judgment to state that the “damage amounts” to which the

“Plaintiffs are entitled” are not awarded against Lindsey, Oliver, Branyon or Jackson

Walker personally, individually, or jointly and severally, but are payable from the corpus



                                            43
upon which the constructive trust was imposed.5                     We modify that portion of the

judgment imposing a constructive trust to limit imposition of the constructive trust solely

to any interest Lindsey may have in the proceeds from the sale of the ranch and held in

the Lesey B. Kinsel Trust at the time of Lesey B. Kinsel’s death. The issue of attorney’s

fees is remanded to the trial court for further consideration in conformance with this

opinion. In all other things, the judgment is affirmed as modified.



                                                                           Brian Quinn
                                                                           Chief Justice


Pirtle, J., dissenting.




        5
         Paragraph 4(f) of the judgment states:

        The Kinsel Ranch sales contract on or about April 15, 2008 and the deed of conveyance
        on or about July 22, 2008 were procured as a result of undue influence or the lack of
        capacity of Lesey B. Kinsel to execute such documents, and the Plaintiffs are entitled to
        the damage amounts listed above in Paragraph 4 and its subparts a through d as a
        result. (Emphasis added).

The italicized language is somewhat confusing. In utilizing the phrase “damage amounts,” the trial court
simply may have been referring to the sums awarded as the amount each “plaintiff” is to recover due to
the avoidance of the instruments procured as a result of the lack of mental capacity or undue influence.
Or, the trial court may have meant the “damage amount” represented the damages recoverable from
Lindsey, Oliver, Branyon and Jackson Walker because Lesey executed the documents in question due to
undue influence or while incapacitated. The former construction is more reasonable, since claims of
undue influence and deficient mental incapacity serve to vitiate the documents touched by those
circumstances. See e.g., Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, 1036 (Tex. 1939) (stating that
undue influence and mental incapacity are two distinct grounds for avoiding a will); accord, Truitt v. Byars,
No. 07-11-00348-CV, 2013 Tex. App. LEXIS 6705, at *23 (Tex. App.—Amarillo May 30, 2013, pet.
denied) (stating that the two theories are distinct grounds for avoiding an instrument or contract). We
found no cases indicating that they somehow constitute an independent tort for which monetary damages
are recoverable. So too do we note that the trial court said nothing about assessing the “damage
amounts” against Lindsey, Oliver and the others individually or jointly or severally. So, the “damage
amounts” alluded to do not impose liability on Lindsey, Oliver, Branyon or Jackson Walker but instead
represent each “Plaintiffs’” respective share of the corpus upon which a constructive trust was imposed.


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