                                                                             ACCEPTED
                                                                         12-14-00302-CV
                                                            TWELFTH COURT OF APPEALS
                                                                          TYLER, TEXAS
                                                                   4/24/2015 11:39:27 AM
                                                                           CATHY LUSK
                                                                                  CLERK

                       NO. 12-14-00302-CV

                IN THE TWELFTH COURT OF APPEALS         FILED IN
                                                 12th COURT OF APPEALS
                         TYLER, TEXAS                 TYLER, TEXAS
                                                 4/24/2015 11:39:27 AM
            CORRINE AUGUSTINE NICHOLS HILL SHEARER CATHY S. LUSK
                                                          Clerk

                                                Appellant

                                v.


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

                                                Appellee

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

                  REPLY BRIEF FOR APPELLANT

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

                              Attorneys for Appellant


                  ORAL ARGUMENT REQUESTED
                       IDENTITY OF PARTIES AND COUNSEL

Appellant/Defendant

      Corrine Augustine Nichols Hill Shearer

Counsel for Appellant

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

      Attorneys for Appellant Corrine Augustine Nichols Hill Shearer

Appellee/Plaintiff

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

Counsel for Appellee

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




                                        i
                                          TABLE OF CONTENTS

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

INDEX OF AUTHORITIES ....................................................................................... i-iii

REPLY TO POINTS RAISED IN APPELLEES’ BRIEF ................................................. 1–9

I.      Corrine did not waive its legally and factually sufficiency arguments by not
        requesting particular instructions to accompany Question No. 5 in the
        Court’s Charge or otherwise objecting to the Court’s Charge

II.     The Appendix to Appellee’s Brief contains records that are not part of the
        official clerk’s or reporter’s records

III.    David relies on a demonstrative that is not part of the record on appeal in
        support of his argument that the evidence is legally and factually sufficient
        to support the existence of a fiduciary duty

IV.     David fails to identify legally and factually sufficient evidence in the record
        supporting an informal fiduciary duty as the evidence identified does no
        more than buttress his subjective feelings of trust and confidence

V.      David gravely misstates the holding in the Priebe case and IIED claim did
        not constitute a “gap-filler” under these facts

CONCLUSION AND PRAYER ................................................................................. 10

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(E) .............................................. 11

CERTIFICATE OF SERVICE ....................................................................................11




                                                        ii
                                     INDEX OF AUTHORITIES

Cases

Johnson v. Johnson,
     191 S.W. 366, 367 (Tex. Civ. App. – Texarkana 1916, no writ.) ............. 4

Osterberg v. Peca,
      12 S.W.3d 31 (Tex. 2000) ...................................................................... 1–3

Priebe v. A’Hearn,
      2011 WL 1330808 (Tex. App. – Houston [1st Dist.] 2011, no pet.) ..... 7–9

Vanderpool v. Vanderpool,
     442 S.W.3d 756 (Tex. App. – Tyler 2014, no pet.) ................................... 1

Statutes

Texas Health & Safety Code 166.039(b) ............................................................. 9

Tex. Health & Safety Code Section 711.002 ....................................................... 9




                                                    iii
                 REPLY TO POINTS RAISED IN APPELLEE’S BRIEF

I.    Corrine did not waive her legally and factually sufficiency challenges
      by not requesting particular instructions to accompany Question No. 5
      or otherwise objecting to the Court’s Charge


      David argues that Corrine waived her legal and factual sufficiency challenge

by not requesting the addition of instructions on the “factors” courts consider in

determining whether a fiduciary duty exists. However, this argument is groundless.

Corrine has not asked the Court to review the legal and factual sufficiency of the

evidence against some phantom charge that she never requested. Rather, she is

properly asking the court to conduct a legal and factual sufficiency review of the

Court’s Charge, not some “other unidentified law”. See Br. of Appellee’s at p. 15.

Texas courts have considered those so-called “factors”, as David refers to them, in its

review of the “actualities of the relationship” which is the crucial inquiry in

determining whether an informal fiduciary duty exists. The actualities of the

relationship bear precisely on whether David justifiably placed trust and confidence

in Corrine or whether his trust and confidence was based merely on his subjective

trust and feelings. See CR 70–84; Vanderpool v. Vanderpool, 442 S.W.3d 756 (Tex.

App. – Tyler 2014, no pet.). Corrine has preserved her legal and factual sufficiency

challenges to Question No. 5.

      David cites the Osterberg case, among others, in support of its waiver



                                          1
argument. However, Osterberg is clearly distinguishable from the case at hand. In

Osterberg, an El Paso candidate for judge (“the judge”) sued opponents of his

campaign (“defendants”) for knowingly making a campaign expenditure in violation

of the Tex. Elec.Code § 253.131. The judge claimed that the defendants violated

Chapter 253 of the Election Code by failing to report the direct campaign

expenditures they made for television advertisements they ran in opposition to him.

Chapter 253 prohibits direct campaign expenditures over $100 unless the spender

reports the expenditures in compliance with Election Code Chapter 254. The

defendants had not reported the expenditures by the deadlines required by Election

Code section 254.124. Under section 254.124, they were required to file a report no

later than the eighth day before the election. The defendants did not file a report until

May 4, 1994—nearly two months after the election and after the judge had filed suit.

Following a jury trial, the trial court held defendants jointly and severally liable for

Election Code violations and awarded the judge money damages and interest. 12

S.W.3d 31, 37 (Tex. 2000). The El Paso Court of Appeals held that the defendants

waived their contention that they “substantially complied” with the Election Code's

reporting requirements by filing a report on May 4, 1994—almost two months after

the election. Id. The Texas Supreme Court affirmed on the issue of waiver stating:



      “[T]he court of appeals did not rule that the sufficiency points were not
      preserved. As is clear from the court of appeals' opinion, the court considered
                                           2
      the sufficiency points and concluded that the evidence was both factually and
      legally sufficient to support the jury's answers to question four . . . The
      [defendants] could instead be arguing that when a court submits a defective
      issue to the jury, an appellate court should review the sufficiency of the
      evidence against the question and instruction that the trial court should have
      submitted—not the one actually submitted—even if the defect was never
      brought to the court's attention and the question or instruction never requested.
      That assertion is misguided. Even if [the judge] had a burden of proof with
      regard to some substantial compliance standard—an issue we do not decide
      today—it is the court's charge, not some other unidentified law, that measures
      the sufficiency of the evidence when the opposing party fails to object to the
      charge. Id. at 54–55 (emphasis added).

      The Supreme Court observed that the defendants in Osterberg preserved the

sufficiency points as to the charge ultimately submitted to the jury. Accordingly,

unlike Osterberg where defendants raised for the first time on appeal error in the

failure to submit a charge containing “substantial compliance” as the standard,

Corrine is not asking this Court to review anything other than the legal and factual

sufficiency of the evidence against the Court’s Charge on which the jury rendered its

verdict based on the standard in Texas law determining whether an informal fiduciary

duty exists – the actualities of the parties’ relationship.

      Those other cases cited by David are inapposite. Corrine is not making a legal

or factual sufficiency challenge where an element is missing from the charge and

Corrine failed to request a substantially correct charge or object to the charge that was

submitted. See Br. of Appellee at pp. 16–21.




                                            3
II.    The Appendix to Appellee’s Brief contains records that are not part of the
       official clerk’s or reporter’s records

       Corrine would briefly point out that Tabs 1–3 of the Appendix to Appellee’s

Brief contain documents that are not part of the official Clerk’s Record or Reporter’s

Record on appeal. For the sake of accuracy in the record and to preserve any

complaint as to the contents of the appellate record, Corrine objects to the Court’s

consideration of Tabs 1–3 to the extent they are not derived from the official record.

See Tex. R. App. P. 38.5(a)(1). It appears that Tab 1 is redundant of the Court’s

Charge in Corrine’s brief. See id. at 38.5(a)(2). Corrine does not object to the Court’s

consideration of CR 29–41 or CR 7–19 that are the official portions of the record that

correspond respectively to Tabs 2–3 of the Appendix to David’s brief.


III.   David relies on a demonstrative that is not part of the record on appeal in
       support of his argument that the evidence is legally and factually sufficient
       to support the existence of a fiduciary duty

       The appellate court is bound by evidence in the record on appeal. Johnson v.

Johnson, 191 S.W. 366, 367 (Tex. Civ. App. – Texarkana 1916, no writ.). David

includes Plaintiff’s Demonstrative 1 in his Appendix. See Appx. to Br. of Appellee

at Tab 4. This evidence was not requested by either Corrine or David at any time prior

to the submission of their briefs. CR 149–150. In a letter dated February 6, 2015, the

Court notified the parties that it believed the record to be complete and advised that

“the need for supplementation or amendment shall not constitute reasonable grounds


                                           4
for seeking an extension of time to file your brief unless filed within 30 days from the

date your brief is originally due. Thus . . . Appellee will have 30 days after

Appellant’s brief has been filed to seek any necessary supplementation.” David has

waived any consideration of Plaintiff’s Demonstrative 1 on appeal and the Court

should not consider it in performing its legal and factual sufficiency reviews.

IV.   David fails to identify legally and factually sufficient evidence in the
      record supporting an informal fiduciary duty as the evidence identified
      does no more than buttress his subjective feelings of trust and confidence

      David takes stock in Corrine’s acknowledgment at trial that she knew David

was trusting her to accurately provide information about his father’s condition. This

does not bear on whether such trust was justified which is exactly why the inquiry

into the actualities of the parties’ relationship is crucial to the determination of

whether an informal fiduciary duty existed. What is starkly telling in David’s brief

is the absence of reference to any portion of the record demonstrating that Corrine

ever committed to acting in David’s best interest. Nor has David identified any

evidence in the record that would support even a reasonable inference that the parties’

relationship had been repaired so as to make any trust David placed in Corrine

justifiable. That is because there is no such evidence. David spends pages 26-28 of

his brief detailing evidence relevant only to the breach of a fiduciary duty, if such

existed, which is not a point that Corrine has raised in this appeal. While David insists

that he trusted Corrine and attempts to identify evidence in support thereof, the


                                           5
evidence in the record is legally and factually insufficient, given the actualities of the

relationship between David and Corrine, to show that David’s trust and confidence

was justifiable.

      Curiously, David claims that Corrine waived any legal or factual sufficiency

challenges to Question No. 5 and that such challenges are irrelevant because the so-

called “factors” are not required to show an informal fiduciary duty; but at the same

time, David relies heavily on one or more of those “factors” in support of the verdict.

David claims that “Corrine Shearer knew that David could not come down to stay

with John Shearer at the Houston VA” and then details evidence in the record

pertaining to medical issues and family obligations that burdened David. See Br. of

Appellee at pp. 22–23; 6RR: 13 (David’s counsel argued at post-trial hearing that “a

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

weakness and the dependence on the part of the other [sic].”). However, even viewing

this evidence in the light most favorable to David and in considering all of the

evidence, it does not justify his placing trust and confidence in Corrine when the

actualities reflect that the relationship was a shambles, he knew that he was the one

with authority to make medical decisions on behalf of his father, and could have and

chose not to exercise that authority directly with doctors at the hospital whom David

admits must have been of the opinion that Corrine had such authority.

      David goes on to state that “the factors raised in Corrine Shearer’s legal and


                                            6
factual sufficiency points are not pre-requisites to the creation and/or existence of an

informal fiduciary relationship. Accordingly, insufficient evidence for any or all of

them does not render the jury verdict improper.” This is simply not so when evidence

bearing on the so-called factors consumed much, if not all, the evidence at trial

relevant to the existence of an informal fiduciary duty and are encompassed in the

broader statement of the law that concerns the actualities of the relationship. See Br.

of Appellee at p. 31 (emphasis added).

V.    David gravely misstates the holding in the Priebe case and IIED claim did
      not constitute a “gap-filler” under these facts


      Corrine will not belabor the issues relating to David’s IIED claim which have

already been amply presented in her Brief. Nevertheless, Corrine would like to

address David’s clear misstatement of the holding in Priebe and urge that it should

not be construed as David insists. Priebe's father and A'Hearn's husband, Richard

Priebe, was diagnosed with terminal cancer. Priebe testified that during her father's

illness, she tried to visit him as frequently as her work schedule would allow because

she wanted to spend as much time with him as she could before he passed away. On

at least one occasion, Priebe tried to discuss funeral arrangements and other

end-of-life matters with her stepmother, but A'Hearn refused to discuss the matter.

Priebe v. A’Hearn, 2011 WL 1330808 at *1 (Tex. App. – Houston [1 Dist] 2011, no

pet.). Mr. Priebe died on February 25, 2003. A'Hearn had Mr. Priebe's body cremated,


                                           7
and his ashes were interred. No funeral was held and no obituary was published.

Priebe was not informed of her father's cremation and was not included in any

discussion about how his remains would be handled. Id. Priebe filed suit alleging

claims against A'Hearn for defamation, conversion, and intentional infliction of

emotional distress. The trial court later transferred Priebe's conversion claim to the

probate court. At trial, the court granted A'Hearn's motion for directed verdict on the

defamation claim on limitations grounds. The jury found A'Hearn liable for

intentional infliction of emotional distress, and awarded Priebe $90,000 in damages

for mental anguish, as well as $1 in exemplary damages. A'Hearn filed a motion for

judgment notwithstanding the verdict, which the trial court granted. Id. at *2

(emphasis added).

       Priebe argued that the trial court improperly granted A'Hearn's motion for

judgment notwithstanding the verdict because there was substantial and compelling

evidence supporting her claim of intentional infliction of emotional distress. Priebe

alleged facts in support of her intentional infliction of emotional distress claim that

included, among other things, that A'Hearn excluded her from discussions concerning

the treatment of her father's remains. Id. at * 5–6. The court concluded that “A'Hearn's

. . . choice to exclude Priebe from any decisions concerning Mr. Priebe's remains and

memorial service, were insensitive when viewed from Priebe's perspective. However,

intra-familial discord of this variety is not regulated by tort law, and the tort of


                                           8
intentional infliction of emotional distress does not permit recovery for inconsiderate

and unkind behavior.” Id. at * 7. The court then cited Tex. Health & Safety Code

§711.002 in support of A’Hearne’s right to control the disposition of Mr. Priebe’s

remains. Ultimately, the court concluded that “the evidence presented in this case did

not support the jury's finding that A'Hearn's behavior was extreme and outrageous,

and we hold that her conduct did not amount to an actionable intentional infliction of

emotional distress claim.” The Court did NOT hold, as David claims, that “there is

no cause of action available but intentional infliction of emotional distress for the

wrongful treatment of human remains.” See Br. of Appellee at p. 40.

      What further distinguishes Priebe from the case at bar is that Priebe only pled

three causes of action, including conversion (which was transferred to the probate

court), and only the IIED cause of action found its way into the jury charge. Here, the

invasion of privacy cause of action was in the Court’s Charge and mirrored the

theories already being sought for interference with a right allegedly belonging to

David under Tex. Health & Safety Code §166.039(b). David attempted to advance

the invasion of privacy theory on “the decisions whether to withdraw or maintain life

support for his father, John Shearer, and whether to order a DNR . . .” at trial under

§166.039(b) but, on appeal, shies away from its availability as a viable theory for

interference with David’s ostensible “right to control the disposition of human

remains.” See CR 63–66.


                                          9
                             CONCLUSION AND PRAYER

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

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

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

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

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

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

Corrine Shearer be awarded her costs. Alternatively, the evidence at trial was

factually insufficient to show that a fiduciary duty existed between Corrine Shearer

and David Shearer. Corrine Shearer would ask that the Court reverse and remand the

case to the trial court for a new trial on David Shearer’s claim for breach of fiduciary

duty.




                                          10
            CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e)

1.        This brief complies with the type-volume limitation of Texas Rule of
          Appellate Procedure 9.4(e)(i)(2)(B) because, according to the Microsoft
          Word 2010 word count function, it contains a total of 6,194 words on
          pages 1-10 of the Appellants Reply Brief and on pages 7-22 of the
          Appellants Brief, excluding the parts of the brief exempted by Texas Rule
          of Appellate Procedure 9.4(e)(i)(1).

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


                                                /s/ J. Chad Parker
                                               J. Chad Parker


                          CERTIFICATE OF SERVICE

          I certify that a true and correct copy of the Reply Brief of Appellant Corrine
Augustine Nichols Hill Shearer was served by electronic service and/or email to the
following counsel of records on April 24, 2015.

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



                                                /s/ J. Chad Parker
                                               J. Chad Parker




                                          11
