                                           NO. 07-03-0540-CV

                                  IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL D

                                     AUGUST 18, 2005
                              ______________________________

                                           BILLIE J. PASLEY,

                                                               Appellant
                                                   v.

                      DENNIS PASLEY and BARBARA PASLEY-DAVIS,

                                                     Appellees
                            _________________________________

                FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

                     NO. 11,104; HON. STEVEN R. EMMERT, PRESIDING
                            _______________________________

                                    Memorandum Opinion
                              _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Appellant Billie J. Pasley (Billie) appeals from a judgment after a jury verdict in favor

of appellees Dennis Pasley (Dennis) and Barbara Pasley Davis (Barbara) against Ralph

Pasley (Ralph) and Billie.1 Through 14 issues, she complains that the trial court: 1) erred

in denying her second motion to recuse the Hon. Steven R. Emmert, 2) erred in continuing

trial with only 11 jurors without her consent, 3) erred in allowing a judgment to be rendered

against the Estate of Ralph Pasley when the Estate was not served with citation and did


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           Ralph Pasley is now deceased.
not participate at trial, 4) erred in refusing special issues on contributory negligence and

laches, 5) erred in refusing to grant her motions to disregard jury findings, 6) erred in

refusing to grant her motion for judgment notwithstanding the verdict, 7) abused its

discretion “in voicing ex parte interruptions” of her counsel’s closing argument, 8) erred in

refusing to admit evidence of financial activity between R. J. Pasley Construction Company

and Dennis and Barbara, 9) erred in allowing the testimony of Jerry Bob Jernigan, 10) erred

in refusing to admit evidence of credits she was entitled to on a life insurance policy of

Ralph, 11) erred in refusing to admit evidence of gifts made to Barbara “by Ralph Pasley

from R. J. Pasley Construction, Inc.,” and 12) erred in stating that it would restrict evidence

offered by the defense because trial was running behind schedule. We affirm the judgment

of the trial court.

                                        Background

       Ralph Pasley was married to Helen Marie McCoin Pasley. Barbara and Dennis were

their two children. Helen died in 1989 leaving a will which established two testamentary

trusts. Ralph was named executor of the estate and trustee of the two trusts. Dennis and

Barbara were beneficiaries under the trusts and substitute trustees of the trusts. Prior to

Helen’s death, Ralph began a relationship with Billie. He also purchased a ladies store in

Shamrock for Billie and her daughter. After Helen’s death, Ralph and Billie married. When

Ralph died in 2001, he left the majority of his estate to Billie.

       Dennis and Barbara filed a lawsuit for breach of fiduciary duty by Ralph and

conspiracy by Ralph and Billie. The jury found that 1) Ralph did not comply with his

fiduciary duties to Dennis and Barbara and willfully committed such acts, 2) Billie conspired

with Ralph by knowingly participating and benefitting in Ralph’s failure to comply with his

                                               2
fiduciary duties, 3) various properties were acquired in part by funds commingled as a

result of Ralph’s failure to perform his fiduciary duties or from rollovers of earlier property

affected by Ralph’s failure to comply with those same duties, and 4) Dennis and Barbara

had no reason to know prior to September 14, 1997, that Ralph had repudiated Helen’s

trusts. The jury entered a verdict favoring Dennis and Barbara, and judgment was entered

upon that verdict.

                                      Issue 1 - Recusal

       Billie claims in her first issue that the trial court erred in denying her motion to recuse

Judge Steven R. Emmert. We overrule the issue for the following reasons.

       She initially contends that the Texas Constitution prohibits a judge from sitting in any

case in which he may have a pecuniary or personal interest in the outcome. Billie mentions

no pecuniary interest which the judge may have in the outcome. So, that cannot be used

as a ground warranting recusal.

       Second, as for his alleged personal interest in the outcome, she cites to actions

undertaken by the judge while in private practice. They include suing a corporation in

which Ralph was an officer, holding funds in escrow for Ralph, writing title opinions

covering property sold by Ralph and Billie, and expressing “personal upset that a prior

motion [to recuse] had been filed.” Billie conceded at the hearing upon her motion that

there was no one item that would justify a motion to recuse; however, she argued that the

trial court should consider the totality of the circumstances.

       The trial court found, and we agree, that ownership of real estate is a matter of

public record and there is no showing that Judge Emmert had gained specialized

knowledge through his title work on any matter at issue in the case at bar. Nor does Billie

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attempt to explain how Emmert’s assistance in legal matters distinct from the current

controversy prejudiced Emmert against her.

      Further, the escrow account held on behalf of Ralph by the title company of Emmert

while in private practice merely evinced a business relationship which did not require

recusal. See Woodruff v. Wright, 51 S.W.3d 727, 737-38 (Tex. App.--Texarkana 2001, pet.

denied) (holding that evidence a surgeon operated on the judge’s mother several years ago

and officiated as a substitute at the surgeon’s wedding showed a mere business

relationship or acquaintanceship between the judge and surgeon which did not require

recusal in a medical malpractice lawsuit). Similarly, Judge Emmert did represent two

employees of the R. J. Pasley Construction Company as beneficiaries of the company’s

defined benefit plan and trust against Ralph in 1994. But, there was no showing that he

gained “personal knowledge of disputed evidentiary facts” involving the current case. Nor

does the representation of those employees indicate that he had some bias against either

Ralph or Billie, especially when she fails to describe the extent of Ralph’s personal

involvement in the suit and whether any acrimony developed between Ralph and Emmert.

       As to the complaints of bias or impartiality based on Judge Emmert’s comment that

he was angry due to a prior recusal motion having been filed after he denied Billie’s motion

for summary judgment, Billie’s counsel admitted that he did not file the motion until the

Thursday prior to a Monday trial setting. Moreover, by the time the motion had been filed,

jurors had already been notified to report for service. It would take extra work to notify

them that they need not report. Counsel also admitted he could understand why Emmert

would be unhappy about that situation.



                                             4
       Opinions formed by a judge on the basis of facts introduced or events occurring

during the proceedings do not constitute a basis for recusal unless they display deep-

seated favoritism or antagonism that would make a fair trial impossible. Ludlow v. DeBerry,

959 S.W.2d 265, 281(Tex. App.--Houston [14th Dist.] 1998, no pet.). The alleged bias in

this instance occurred during the course of the proceeding. Further, the judge’s alleged

remark does not show deep-seated favoritism or antagonism so as to make a fair trial

impossible. Indeed, it simply evinced reasonable frustration experienced by a judge when

a litigant undertakes a belated course of conduct to disrupt the progression of a suit after

discovering that the judge may not side with the litigant on particular matters.

       In sum, none of the alleged grounds for recusal were sufficient to warrant recusal.

Further, Billie cites to no cases, and we have found none, which indicate that we may

consider the totality of all the alleged grounds when none of them individually are sufficient.

Therefore, we hold that the trial court did not abuse its discretion in refusing to grant the

second motion to recuse Judge Emmert.

                                    Issue 2 - 11 Jurors

       In her second issue, Billie contends that the trial court erred in proceeding with trial

with only 11 jurors. We overrule the issue.

       After trial began and testimony had been heard, the trial court noted that a juror had

been seated who had been previously struck by Billie. At that time, counsel for Billie

indicated that Billie had already mentioned that fact to him. However, her counsel had

made no objection prior to the court raising the subject. The court later stated on the

record that trial would proceed by agreement with 11 jurors. Though the record does not



                                              5
reflect that Billie agreed to so proceeding, it nevertheless illustrates that the trial continued

with only 11 jurors. Additionally, nothing indicates that Billie voiced objection to that.

       To preserve a complaint for appellate review, the record must show the complaint

was made to the trial court by a timely request, objection, or motion that stated the grounds

for the ruling sought with sufficient specificity to make the trial court aware of the complaint.

TEX . R. APP . P. 33.1(a)(1)(A). Since the record does not disclose that Billie objected to the

trial court’s decision to continue with only 11 jurors, she neither complied with Rule

33.1(a)(1)(A) nor preserved the complaint for review. See In re Lynch, 35 S.W.3d 162, 166

(Tex. App.-- Texarkana 2000, no pet.) (holding that the right to a 12-person jury was waived

when a jury of six was impaneled without objection); Dickson v. J. Weingarten, Inc., 498

S.W.2d 388, 391 (Tex. Civ. App.--Houston [1st Dist.] 1973, no writ) (holding that because

the appellant did not object to the trial proceeding with 11 jurors, the plaintiff waived his

right to object on appeal).

                              Issue 3 - Failure to Join the Estate

       In her third issue, Billie contends that the trial court had no personal jurisdiction to

render its judgment against Ralph because the Estate of Ralph J. Pasley was never named

in or served with the original petition. Nor did it participate at trial. We overrule the issue.

       Billie admits that “[i]n the documents appointing him as Independent Executor of the

Estate of Ralph J. Pasley[,] Mr. Kessie did agree to be bound by the decision of the Court

in this matter.” Given this agreement and the fact that Billie is not the independent executor

of Ralph’s estate, we conclude that she lacks standing to complain of the purported defect.

                Issues 4 and 5 - Contributory Negligence and Laches



                                               6
       Billie alleges in her fourth and fifth issues that the trial court erred in refusing to

submit to the jury special issues on contributory negligence and laches. We overrule the

issues.

       A trial court must submit questions, instructions, and definitions raised by the written

pleadings and the evidence. TEX . R. CIV . P. 278. Additionally, the failure to submit an issue

is not basis for reversal unless its submission in substantially correct wording has been

requested in writing and tendered by the party complaining of the judgment. Id.; Barnett

v. Coppell North Texas Court, Ltd, 123 S.W.3d 804, 824 (Tex. App.–Dallas 2003, pet.

denied); Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40, 50 (Tex. App.–Corpus Christi

2001, no pet.). Merely dictating the issue into the record does not suffice. Jarrin v. Sam

White Oldsmobile Co., 929 S.W.2d 21, 25 (Tex. App.–Houston [1st Dist.] 1996, writ denied).

While Billie objected to the court’s charge and dictated her proposed questions into the

record, we find no separate written request for those questions in the record.

Consequently, she failed to preserve the alleged error for review.

            Issues 6 and 8 - Jury Finding on Discovery of Breach of Duty

       Billie claims in her sixth issue that the trial court erred in failing to grant her motion

to disregard the jury’s finding that Dennis and Barbara did not know and should not have

known that their father was breaching his fiduciary duty to them before September 14,

1997. Similarly, she argues in her eighth issue that the trial court should have granted

judgment notwithstanding the verdict because Dennis and Barbara knew or should have

known that their father was disposing of their trust property. We overrule the issues.

       According to Billie, the evidence showed that before 1997, Ralph was conveying

property as Independent Executor of the Estate of Helen Pasley and as trustee of the

                                               7
testamentary trusts. And, because those deeds were a matter of public record, Dennis and

Barbara purportedly had constructive notice of his misconduct. Yet, the record also

illustrates that the will through which the trust was created granted Ralph, as trustee and

executor of the estate, the authority to sell and otherwise convey both the personalty and

realty comprising the estate and trust corpus. Ralph having that power, we are left to

wonder how conveying property by one authorized to do so places others on notice of

misconduct. Billie does not explain that in her brief. Nor are we willing to say that it does

as a matter of law, as she would have us do.

                         Issue 7 - Jury Finding on Conspiracy

       In her seventh issue, Billie challenges the trial court’s failure to grant her motion to

disregard that jury finding wherein she was found to have conspired with Ralph in

committing the breaches of fiduciary duty involved. We overrule the issue.

       The elements of a civil conspiracy are: 1) two or more persons, 2) an object to be

accomplished, 3) a meeting of the minds on the object or course of action, 4) one or more

unlawful, overt acts, and 5) damages as a proximate result. Trostle v. Trostle, 77 S.W.3d

908, 915 (Tex. App.–Amarillo 2002, no pet.). The jury answered affirmatively to the

question: “Did Billie J. Pasley conspire with Ralph J. Pasley by knowingly participating in

and benefiting [sic] from Ralph J. Pasley’s failure to comply with his fiduciary duties to

Dennis Pasley and Barbara Davis and was Billie J. Pasley’s participation, if any, a

proximate cause of the damages you have found?” Though she did not object to the

wording or form of this question, Billie now asserts that there is not a scintilla of evidence

of an object to be accomplished by the parties nor of a meeting of the minds on the object

or course of action.

                                              8
        A conspiracy may be established by circumstantial evidence. Lesikar v. Rappeport,

33 S.W.3d 282, 302 (Tex. App.–Texarkana 2000, pet. denied). An agreement between

parties on a course of action need not be formal but may be tacit. J.T.T. v. Tri, 111 S.W.3d

680, 684 (Tex. App.–Houston [1st Dist.] 2003), rev’d on other grounds, 162 S.W.3d 552

(Tex. 2005). It is also not essential that each conspirator have knowledge of the details.

Id. Additionally, inferences of concerted action may be drawn from participation in the

transactions and from the enjoyment of the fruits of the transactions. Id.; Lesikar v.

Rappeport, 33 S.W.3d at 302, citing International Bankers Life Ins. Co. v. Holloway, 368

S.W.2d 567, 581-82 (Tex. 1963).

        Here, evidence showed that Ralph never set up separate bank accounts for the

estate or the trusts but commingled the funds in his own bank account.2 Further, after he

married Billie, his account was made a joint one with her. She also joined in a deed

conveying part of the trust property which Ralph signed individually and as trustee with the

proceeds going into their joint account. Additionally, Billie’s son earned a fee of $11,000

on the sale of that property.

        Moreover, other evidence depicts that Billie wanted Ralph to purchase a property

known as “the Fain” residence even though he had already deeded to her the house on

South Main Street in which they lived. The Fain residence was purchased and deeded to

Billie in 1994 as her separate property. Billie’s daughter then lived in the South Main Street

home without rent. Around the time of Ralph’s death, Billie, who was the sole heir of the



        2
         The jury found that three homes, various annuities, an IRA account, two vehicles, a farm account at
National Bank of Commerce, and the joint checking account were all acquired with comm ingled funds. This
finding has not been challenge d on app eal.

                                                     9
joint bank account under Ralph’s will, transferred $153,000 from their joint account to her

separate account. Although some of the money was replaced in the joint account, some

was not. Billie’s son and daughter additionally received payments of $6000 and $19,308.43

respectively from the joint account of Ralph and Billie for which there is no evidence that

it was ever repaid. Moreover, within a month after Ralph’s death, Billie changed the

beneficiaries on one of the annuities (which the jury found had been acquired with

commingled funds) from Dennis and Barbara to her own children. The jury could infer from

this evidence that Billie knowingly participated in the financial transactions involving

commingled funds and benefitted from them. This, in turn, would allow it to reasonably

infer that she was part of a conspiracy.

                           Issue 9 - Interruption of Argument

       As her ninth issue, Billie complains of the trial court’s sua sponte interruption of her

closing argument. We overrule the issue.

       Assuming arguendo that a trial court lacks the authority to correct what it perceives

to be a misrepresentation of the record, Billie did not object to the purported interference.

Instead, her counsel apologized to the court. Given the lack of an objection, she did not

preserve her complaint. See TEX . R. APP . P. 33.1(a)(1)(A) (requiring a contemporaneous

objection to preserve a complaint for appellate review).

        Issues 10, 13, and 14 - Financial Activity of Construction Company

       By way of her tenth, thirteenth, and fourteenth issues, Billie contends the trial court

erred in excluding evidence of payments of monies being given by R. J. Pasley

Construction Company (a corporation) to Dennis and Barbara. The evidence was excluded

because it was deemed irrelevant. However, Billie believed that it tended to show that

“trust money was being spent” improperly by Ralph, and that “would have put them on

                                             10
notice and triggered the Statute of Limitations . . . .” So too was it evidence that neither

child was being “deprived” of trust property, according to her. We overrule the issues.

          The suit initiated by Barbara and Dennis concerned the fiduciary duties imposed

upon Ralph due to his positions as executor of his dead wife’s estate and as trustee of the

two testamentary trusts she created. While one or more of the trusts apparently owned the

stock of the construction company, Billie does not deny that the gifts and monies in

question actually belonged to the corporation. Nor does she argue that the relationship

between the corporation and trusts was such that the distinct entities were actually one and

the same for purposes of asset ownership. Nor can we forget that a corporation is

recognized as an entity distinct from those who own its stock. Pabich v. Kellar, 71 S.W.3d

500, 507 (Tex. App.–Fort Worth 2002, pet. denied). In other words, stockholders do not

personally own the individual assets of the corporation. In re Marriage of Thurmond, 888

S.W.2d 269, 279-80 (Tex. App.– Amarillo 1994, writ denied). Given this, we cannot say

that the trial court abused its discretion in concluding that payments or gifts made by the

corporation to Barbara and Dennis were irrelevant to the issue of whether Ralph breached

his fiduciary duties arising from his status as executor of the estate and trustee of the

trusts.

          Nor can we say that the trial court erred when it told Billie that it was going to “call[]

irrelevance objections real close” and that it was “going to start narrowing this thing [the

presentation of irrelevant evidence] down.” We know of no authority that obligates a trial

court to admit irrelevant evidence, and Billie cites us to none.

                    Issue 11 - Evidence in Violation of Dead Man’s Rule



                                                 11
       In her eleventh issue, Billie argues that the trial court erred in “allowing the testimony

of Jerry Bob Jernigan in violation of the Dead Man’s Statute,” that is, Texas Rule of

Evidence 601(b). We overrule the issue.

       Jernigan was not a party to the suit, and Billie fails to contend that he had an interest

in the claims being litigated. This is fatal to her complaints since Rule 601(b) applies to the

testimony of a party, TEX . R. EVID . 601(b) (stating that neither “party shall be allowed to

testify against the others as to any oral statement by the testator, intestate or ward . . .”);

accord, Adams v. Barry, 560 S.W.2d 935, 937 (Tex. 1978) (so stating), or a person having

an actual and direct interest in the matter being litigated. Tuttle v. Simpson, 735 S.W.2d

539, 542-43 (Tex. App.–Texarkana 1987, no writ); Ford v. Roberts, 478 S.W.2d 129, 133

(Tex. Civ. App. – Dallas 1972, writ ref’d n.r.e).

                              Issue 12 - Evidence of Credits

       Finally, Billie complains of the trial court’s failure to allow evidence of credits she is

allegedly entitled to for maintenance of a life insurance policy on Ralph which was part of

the assets of the trusts. We overrule the issue.

       The argument proffered before us is founded upon §230 of the Texas Probate Code.

That provision obligates an executor or administrator to care for the property of the estate.

TEX . PROB. CODE ANN . §230 (Vernon 2003). Yet, nothing was said at trial about §230 or

that it implicitly obligated Ralph to purchase life insurance to further his duties as trustee

or executor. Given that the grounds for objection uttered below do not comport with those

made here, Billie did not preserve her claim for review. Moser v. Davis, 79 S.W.3d 162,

169 (Tex. App.--Amarillo 2002, no pet.) (holding that the grounds supporting an objection

asserted below must comport with those raised on appeal).

                                              12
Having overruled each issue raised by Billie, we affirm the trial court’s judgment.



                                          Brian Quinn
                                          Chief Justice




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