                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-17-00203-CV
                           ____________________

           LAURA KATHLEEN FIELDING, ADMINISTRATOR
          OF THE ESTATE OF CHARLES W. HODGE, Appellant

                                        V.

                        JANNIECE TULLOS, Appellee


                    On Appeal from the 260th District Court
                           Orange County, Texas
                         Trial Cause No. D160234-C


                          MEMORANDUM OPINION

      Appellant Laura Kathleen Fielding, Independent Administrator of the Estate

of Charles W. Hodge, Deceased, (“the Estate,” “Plaintiff,” or “Appellant”) filed the

underlying suit to set aside certain beneficiary designations made by Charles Hodge

(“Charles”). Before his death, Charles named his caretaker, Appellee Janniece

Tullos (“Tullos,” “Defendant,” or “Appellee”), as the beneficiary of two of his




                                         1
accounts located at UBS Financial Services Inc. The trial court granted a summary

judgment in favor of Tullos, from which the Estate appeals. We affirm.

                                     Background

          Charles died on December 22, 2014. His wife predeceased him. Charles and

his wife had no children. Charles’s Last Will and Testament executed in November

2004 was filed for probate, and the Judgment Declaring Heirship named six heirs—

all nieces and nephews—each with a one-sixth share in Hodge’s estate: Laura

Kathleen Fielding, Renee Pomonis, Lori Park, Joe David Hodge, Gary Hodge, and

George Bishop. The probate court named Fielding as the administrator of Charles’s

estate.

          Tullos worked as a caretaker for Charles and his wife, O.V. Tullos began

working for O.V. in August 1997, and she continued working for Charles after

O.V.’s death in 2004. Charles needed assistance at home because of mobility

limitations and a history of many surgeries. While working for O.V., Tullos was at

the house four days a week, but after O.V. died, Tullos was usually at Charles’s

house seven days a week.

          On November 30, 2004, Charles executed an Account Application and

Agreement for Individuals and Custodial Accounts (“Account Application”) for his

Retail Management Account (“the RMA account”) with UBS Financial Services Inc.

                                          2
(“UBS”). On that same day, Charles also executed an IRA Beneficiary Designation

Update Form for an IRA account with UBS (“the IRA account”). In the IRA

Beneficiary Designation Update Form, Charles named his sister, Shirley Wood, as

primary beneficiary, and Charles named E.J. Wood, Charles’s brother-in-law, and

Tullos as 50% contingent beneficiaries. On May 18, 2011, Charles executed another

IRA Beneficiary Designation Update Form for the IRA account, in which Charles

named Tullos primary beneficiary and Shirley Wood as contingent beneficiary. Also

on May 18, 2011, Charles executed a Transfer on Death Agreement for the RMA

account in which Charles named Tullos as the sole beneficiary.

Plaintiff’s Original Petition

      On August 4, 2016, Fielding, as Independent Administrator of Charles’s

estate, filed a verified Original Petition and Application for Temporary Restraining

Order and Temporary Injunction against Tullos. Plaintiff alleged that at the time of

his death, Charles had about $1,699,000 in his UBS accounts. Plaintiff sought a

judgment declaring that all financial accounts, including the two UBS accounts, are

“properly payable” to Charles’s estate or that all changes to Charles’s financial

accounts, including the UBS accounts, “are void and all such funds and assets are

properly payable” to Charles’s estate. Plaintiff alleged that Charles lacked capacity

to make any transactions, to change beneficiary designations, or to enter into a

                                         3
contract. Plaintiff also alleged that any transactions, beneficiary designations, or

changes in beneficiary designations to Charles’s accounts were executed as the result

of undue influence. Plaintiff asserted a claim for tortious interference with

inheritance rights and unjust enrichment. Plaintiff also alleged that there should be

a deferral of the accrual of limitations, and that the suit was filed within four years

of Plaintiff’s knowledge of facts that would lead a reasonably prudent person to

discover Defendant’s wrongful acts.

      Plaintiff also requested a temporary restraining order and a temporary

injunction to prevent Tullos from transferring or disposing of funds and assets that

are the subject of the litigation, and from destroying or altering communications.

Defendant’s Objections, Motion to Strike, and Answer

      Tullos objected to the application for a TRO and temporary injunction and

filed a motion to strike. Defendant alleged that Plaintiff’s petition did not include

specific facts showing immediate irreparable harm, and that Plaintiff failed to allege

facts supporting the claim that Tullos would deplete the accounts or supporting

Plaintiff’s claims of undue influence, tortious interference with inheritance rights, or

unjust enrichment. Defendant moved to strike Plaintiff’s pleadings seeking a

declaratory judgment, arguing that a declaratory judgment cannot be used to decide

tort liability and that there was no claim or proof that the beneficiary designations

                                           4
are unclear, ambiguous, or not what they purport to be. Defendant also alleged that

Plaintiff is not entitled to attorney’s fees.

       Defendant filed an Original Answer which included a general denial, an

objection to Plaintiff’s request for a TRO and temporary injunction, and special

exceptions. Defendant also demanded a jury trial.

Plaintiff’s Amended Original Petition

       Plaintiff filed a First Amended Original Petition (“Amended Petition”).

Plaintiff alleged that a formal or informal fiduciary relationship existed between

Charles and Tullos and that the fiduciary relationship “gives rise to a presumption

of undue influence that shifts the burden of proof” on undue influence to Tullos.

Plaintiff alleged that Tullos used her position as caretaker and fiduciary to

manipulate Charles for her own financial gain and that, but for Tullos’s undue

influence, Charles would not have named Tullos as beneficiary of his accounts.

Plaintiff argued that the “Deferral of Accrual of Limitations Doctrine” applied, and

she sought a declaratory judgment, alleged that Tullos had been unjustly enriched,

and sought damages, costs, and attorney’s fees.

Defendant’s Answer to the Amended Petition

       The Defendant filed an answer to the amended petition. The Defendant

asserted a general denial, denied that there was any “undue influence,” denied the

                                                5
existence of either a formal or informal fiduciary relationship, and asserted several

affirmative defenses. The defendant alleged that Plaintiff’s claims are barred by the

statute of limitations, that Charles intended to transfer the funds on his death to

Tullos as a gift, that Plaintiff has unclean hands, and that Plaintiff’s claims are barred

by ratification. The Defendant also included special exceptions. The Defendant

alleged that Plaintiff failed to state what breach of fiduciary duty by the Defendant

caused injury to the Plaintiff, Plaintiff failed to state facts to support a claim of undue

influence, and Plaintiff is not entitled to a declaratory judgment or attorney’s fees

and costs. And the Defendant asserted a counterclaim for attorney’s fees and costs.

Defendant’s First Motion for Summary Judgment

       The Defendant filed her first motion for summary judgment on March 10,

2017. The Defendant argued that Plaintiff’s claims for undue influence and unjust

enrichment are barred by the statute of limitations because Plaintiff’s complaints

pertain to beneficiary designations executed in 2004 and 2011, and the alleged injury

that is the basis of the lawsuit is not inherently undiscoverable. The Defendant

argued that the evidence demonstrates Tullos did not exert undue influence over

Charles. Tullos argued that Charles had made it clear to his financial advisors that

he intended to leave Tullos the funds in his UBS accounts, Tullos cared for Charles

daily for ten years, Charles had “no relationship” with three of his nieces and

                                            6
nephews and only a limited relationship with the others, and none of the nieces or

nephews had helped care for Charles. According to Tullos, Fielding admitted in her

deposition that she did not have personal knowledge to support the claim of undue

influence and Fielding could not provide any examples of how Tullos exerted undue

influence over Charles. Citing deposition testimony of Tullos, and also of Gretchen

Hargroder and Richard Ridley, two UBS financial advisors, Tullos argued that she

was not involved in Charles’s finances, she did not review his bank statements and

was unaware of the specifics of the UBS accounts, and she was generally

uninterested in the UBS accounts, although she drove Charles to UBS so that Charles

could transact business.

Defendant’s Motion for Summary Judgment on Fiduciary Relationship

      The Defendant filed a second motion for summary judgment on March 14,

2017, in which she argued that Plaintiff cannot establish the existence of a fiduciary

relationship and there is no evidence that Charles relied on Tullos for any judgment

or advice. Defendant argued that there was no transaction between Charles and

Tullos, no undue influence exerted by Tullos over Charles, and any presumption of

unfairness does not apply. Quoting deposition testimony of Gretchen Hargroder,

Tullos argued that Charles was “in charge of his accounts, and he made the decisions

on the accounts. [Tullos] had no -- she had no influence or input on those decisions

                                          7
whatsoever.” Defendant also argued that, even if a fiduciary relationship existed

between Charles and Tullos, the beneficiary designations at issue do not arise from

a transaction between Charles and Tullos, and there is no presumption of unfairness

and the burden of proof on undue influence would not shift to the Defendant.

Plaintiff’s Response to the Motions for Summary Judgment

      Plaintiff filed a joint response to both motions for summary judgment.

Plaintiff argued that the causes of action for undue influence and unjust enrichment

accrued upon Charles’s death, or in the alternative, that the deferral of the accrual of

limitations doctrine applies, so that Plaintiff’s causes of action accrued when

Plaintiff learned of Defendant’s actions. According to Plaintiff, “[i]t is fundamental

that an undue influence cause of action for a beneficiary designation does not accrue

until the death of the person [] who was unduly influenced.” Plaintiff also argued

that undue influence is a type of fraud and that deferral of accrual of limitations

applies in causes of action for fraud. Plaintiff argued in the alternative that for a

cause of action based on undue influence, the statute of limitations is tolled until the

undue influence ceases to exist at the time of Charles’s death.

      Plaintiff also argued that the summary judgment evidence establishes that a

fiduciary relationship existed between Charles and Tullos, which results in a

presumption of undue influence, and that the Defendant has the burden of proof to

                                           8
establish that she did not unduly influence Hodge to sign the beneficiary

designations. Plaintiff argued that Defendant cannot meet her burden of proof on

undue influence and that fact issues exist on undue influence and unjust enrichment.

      Plaintiff also argued that the evidence establishes that an informal fiduciary

relationship existed between Charles and Tullos because: Tullos was a caretaker for

the Hodges for seventeen years, and she was with Charles daily for ten years until

his death; Charles trusted and had confidence in Tullos; Tullos wrote out Charles’s

checks and made all his bank deposits; Tullos added Charles to her cell phone

account; Tullos was on Charles’s Bank of America, Discover, and Chase Freedom

credit card accounts and used these accounts to buy groceries, gasoline, and sundries;

and, when Charles was hospitalized, he left Tullos with signed blank checks.

      Plaintiff also argued that the evidence establishes the existence of a formal

fiduciary relationship between Charles and Tullos. Plaintiff noted that on November

30, 2004, Charles and Tullos signed an “Account Application and Agreement for

Individuals and Custodial Accounts” for Charles’s RMA account, and that under

Tullos’s signature the word “agent[]” appears. Plaintiff also noted that on February

14, 2014, Charles executed a Power of Attorney for his UBS accounts naming Tullos

as his agent. Citing Tullos’s deposition, Plaintiff explained that when Charles signed

the Power of Attorney, Charles was in a nursing home recuperating from an incident

                                          9
of cardiac arrest. According to the Plaintiff, the deposition testimony of Hargroder

also showed that Hargroder had explained to Tullos that Tullos would be Charles’s

agent under the Power of Attorney. Citing Johnson v. Brewer & Pritchard, P.C., 73

S.W.3d 193, 200 (Tex. 2002) and Kinzbach Tool Co. v. Corbett-Wallace Corp., 160

S.W.2d 509, 512 (Tex. 1942), Plaintiff argued that “Texas law provides that an agent

is a formal fiduciary to her principle [sic].”

      The Plaintiff also argued that “abundant circumstantial evidence” proves

undue influence. Citing Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963) and

Mackie v. McKenzie, 900 S.W.2d 445 (Tex. App.—Texarkana 1995, writ denied),

Plaintiff argued that “[t]he summary judgment circumstantial evidence supports all

of the[] Rothermel factors and establishes that Charles W. Hodge was unduly

influenced into executing the May 18, 2011 UBS beneficiary designation.”

According to the Plaintiff, the circumstances surrounding the execution of the

beneficiary designations provides evidence that Charles was unduly influenced by

Tullos. Plaintiff emphasized that in her deposition testimony, Tullos explained that

she drove Charles to UBS on November 30, 2004, when Charles executed the IRA

Beneficiary Designation Update Form that named Tullos as a 50% contingent

beneficiary, and where Charles and Tullos signed the Account Application for the

RMA account. According to the Plaintiff, the execution of the May 18, 2011

                                           10
beneficiary designation for the UBS accounts also demonstrated that Charles

executed the change in the car in the UBS parking lot while Tullos was in the car, as

explained in the deposition testimony of Hargroder and Ridley.

      Plaintiff argued that Tullos worked for Charles seven days a week after his

wife died, and Charles spent holidays and celebrated birthdays with Tullos and her

family. According to the Plaintiff, the evidence suggested that Tullos “desired the

funds” in Charles’s UBS accounts because on December 17, 2014, Tullos used her

power of attorney to take $20,000 out of Charles’s account and put it into her own

savings account; and, on January 16, 2015, she took out $348,081.91 from the UBS

accounts, she used $30,000 to buy a new car, she gave each of her children $100,000,

she bought new furniture, and she paid her property taxes. According to the Plaintiff,

Tullos had “unlimited opportunities” to influence Charles because: she was at his

home every day of the week, she wrote all of his checks, she made his bank deposits,

Charles left her signed blank checks when he was hospitalized, and he celebrated

holidays and birthdays with Tullos and her family. Plaintiff also argued that Tullos’s

own deposition testimony shows that Charles had multiple medical issues and had

undergone seventeen major surgeries, rendering him unable to drive and “totally

dependent” on Tullos. Finally, Plaintiff argued that Charles’s Will provided that if

his wife did not survive him, his estate should be divided equally between Shirley

                                         11
and E.J. Wood or their heirs, but “[a]s a result of Defendant’s actions, the vast

majority of Charles Hodge’s assets were not distributed in accordance with his

testamentary wishes.”

      Plaintiff filed an Amended and Supplemental Response to the motions for

summary judgment. In addition to re-urging the arguments in Plaintiff’s first

response, Plaintiff also argued that Charles took numerous medications for many

years, some of which have side effects including memory impairment and confusion,

and the medications “made him more susceptible to undue influence” by Tullos.

Plaintiff argued that Defendant’s reliance on the testimony of Richard Ridley and

Gretchen Hargroder “is misplaced[]” because when Charles executed the May 18,

2011 beneficiary designation, Ridley and Hargroder had only been acquainted with

Charles for a month, and another financial advisor, Sammy Page, had served Charles

before April 20, 2011.1 Plaintiff also alleged that Ridley and Hargroder had only met

with Charles once before May 18, 2011.

Defendant’s Reply

      Defendant filed a reply brief. The Defendant argued that the Plaintiff had

“shift[ed] gears” by arguing fraud and fraudulent concealment and that the Plaintiff



      1
       Plaintiff included no deposition testimony of Sammy Page, and the record
does not suggest Page was deposed.
                                        12
had not pleaded such claims. Defendant also argued that Plaintiff had failed to

respond to Defendant’s motion for summary judgment on “fiduciary duty,” and

because there is no evidence that Defendant breached any fiduciary duty, Defendant

is entitled to summary judgment on any claim for fiduciary duty. Defendant alleged

that Plaintiff’s amended petition includes a judicial admission that the complained-

of conduct occurred in 2004 and 2011, and that as a matter of law, the limitations

period begins to run when the wrongful conduct occurs. Defendant also argued that

there is no evidence of any transaction between Charles and Tullos which is

necessary to support a claim of breach of fiduciary duty and a presumption of

unfairness. Defendant argued that the summary judgment evidence of undue

influence is legally insufficient, and that Plaintiff merely presented evidence of the

opportunity for influence.

Hearing and Final Judgment

      The court held a hearing on the motions for summary judgment. At the

hearing, Plaintiff’s counsel explained that his client is not asserting a claim for a

breach of fiduciary duty, but his client is alleging that a fiduciary duty existed, which

means there is a presumption of undue influence. Plaintiff argued that the Plaintiff

need only present “some evidence” of a fiduciary relationship and then the burden

of proof shifts to Tullos to disprove undue influence, and according to the Plaintiff,

                                           13
the 2004 Account Application document, where Tullos signed as “agent,” is some

evidence of a fiduciary relationship between Tullos and Charles.

      At the end of the hearing, the trial court explained that it was going to grant

the motion for summary judgment and stated:

             Well, I have spent a lot of time in reading up on all of your
      positions. I can’t say I’ve read all of the depositions or whatever, but
      I’ve read what has been attached to the motions. And it seems clear to
      me that there was, as you say, every opportunity for Ms. Tullos to have
      undue influence on Mr. Hodge. There was every opportunity for that to
      happen because she was with him basically all day for a number of
      years, but I don’t see any evidence that she did that. Certainly there was
      evidence she could have, but I don’t see any evidence that she did. I
      don’t think there was a fiduciary relationship there where he had
      complete trust in her. And she did sign some checks and she did do
      some things for him and he never tried to write a will that named her or
      whatever.
             So, based upon all I’ve read and the evidence I’ve heard, I don’t
      see the fact issue; and I’m going to grant the motion for summary
      judgment.

      On May 4, 2017, the trial court signed a Final Judgment granting Defendant’s

Motion for Summary Judgment, stating the motion “addressed all of Plaintiff’s

causes of action and claims for relief[.]” The Final Judgment ordered that Plaintiff

take nothing, denied all of Plaintiff’s requested relief, and it “dispose[d] of all claims

and all parties[.]” Plaintiff timely filed a notice of appeal.




                                           14
                                         Issues

      Appellant raises three issues on appeal. In her first issue, Appellant argues

that the trial court erred in granting Appellee’s motions for summary judgment

because Appellee failed to overcome the presumption of undue influence, failed to

prove as a matter of law that she did not unduly influence Charles to sign the

beneficiary designation, and failed to prove as a matter of law that Appellee did not

have an informal and formal fiduciary relationship with Charles. In her second issue,

Appellant argues that there are genuine issues of material fact about whether

Appellee unduly influenced Charles and the fact issues preclude summary

judgement. Appellant’s third issue argues that Appellee’s limitation defense is

inapplicable as a matter of law.

                                   Standard of Review

      When it is not readily apparent that the movant seeks a summary judgment on

no-evidence grounds, “the court should presume that it is filed under the traditional

summary judgment rule and analyze it according to those well-recognized

standards.” Richard v. Reynolds Metal Co., 108 S.W.3d 908, 911 (Tex. App.—

Corpus Christi 2003, no pet.) Accordingly, we construe Defendant’s Motions for

Summary Judgment as asserting traditional grounds for summary judgment. See

Tex. R. Civ. P. 166a.

                                          15
      We conduct a de novo review of an order granting a traditional motion for

summary judgment. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,

215 (Tex. 2003). We deem as true all evidence that is favorable to the nonmovant,

indulge every reasonable inference to be drawn from the evidence, and resolve any

doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d

656, 661 (Tex. 2005). When a trial court does not specify the grounds on which it

granted the motion for summary judgment, we must affirm if any of the grounds

asserted in the motion are meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d

244, 248 (Tex. 2013).

      To be entitled to a traditional summary judgment, a movant must establish

that there is no genuine issue of material fact and that the movant is entitled to

judgment as a matter of law on the issues set forth in the motion. Tex. R. Civ. P.

166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,

848 (Tex. 2009). Generally, a defendant needs to conclusively negate at least one

essential element of each of the plaintiff’s causes of action or conclusively establish

each element of an affirmative defense to succeed on a traditional motion for

summary judgment. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.

1997). “Evidence is conclusive only if reasonable people could not differ in their

conclusions[.]” City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Once the

                                          16
party moving for summary judgment has established its right to summary judgment

as a matter of law, the nonmovant must present evidence raising a genuine issue of

material fact to avoid the motion being granted. See City of Houston v. Clear Creek

Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).

      On a traditional motion for summary judgment, a nonmovant need not file an

answer or response to a motion for summary judgment in order to challenge the

sufficiency of the evidence relied on by the movant. See Fantastic Homes, Inc. v.

Combs, 596 S.W.2d 502, 502 (Tex. 1979) (citing Clear Creek Basin Auth., 589

S.W.2d at 678). We may consider only the grounds expressly set forth in the motion

for summary judgment and the issues of fact expressly set forth in the response.

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341-43 (Tex. 1993).

           Undue Influence, Burden of Proof, and Fiduciary Relationship

      The party contesting a will or payable-on-death provision or beneficiary

designation based on a claim of undue influence bears the burden of proving undue

influence. Rothermel, 369 S.W.2d at 922; Quiroga v. Mannelli, No. 01-09-00315-

CV, 2011 Tex. App. LEXIS 1959, at *12 (Tex. App.—Houston [1st Dist.] Mar. 17,

2011, no pet.) (mem. op.). Undue influence is a form of fraud, and the term describes

the wrongful use of influence, such as through force, intimidation, duress, or

deception, to cause the execution of a will that is contrary to the testator’s desire for

                                           17
the distribution of his or her property after death. In re Estate of Butts, 102 S.W.3d

801, 803 (Tex. App.—Beaumont 2003, pet. denied) (majority of the Beaumont Court

concluded the trial court properly granted summary judgment as to contestants’

claims challenging decedent’s will and alleging undue influence). In an undue

influence claim, the evidence must show not only the presence of the opportunity to

influence, but also that improper influence was exerted on the decedent at the time

the beneficiary designation or will was made. Id. Simply because the beneficiary had

a close relationship with the decedent or otherwise was present for the execution of

an instrument, it does not establish proof of undue influence. See Guthrie v. Suiter,

934 S.W.2d 820, 832 (Tex. App.—Houston [1st Dist.] 1999, no writ); Evans v. May,

923 S.W.2d 712, 715 (Tex. App.—Houston [1st Dist.]1996, writ denied). A person

may request or entreat another person to create a favorable dispositive instrument,

but unless the entreaties are shown to be so excessive as to subvert the maker’s will,

they do not constitute undue influence that invalidates the will. See In re Estate of

Kam, 484 S.W.3d 642, 653 (Tex. App.—El Paso 2016, pet. denied); In re Estate of

Sidransky, 420 S.W.3d 90, 95 (Tex. App.—El Paso 2012, pet. denied). The

contestant must prove the existence and exertion of an influence that subverted or

overpowered the testator’s mind when the testator executed the document so that the

testator executed the document in a manner that he otherwise would not have

                                         18
executed but for such influence. Rothermel, 369 S.W.2d at 922; Long v. Long, 196

S.W.3d 460, 467 (Tex. App.—Dallas 2006, no pet.).

      Plaintiff contends there was either a formal or informal fiduciary relationship

between the testator and the beneficiary. Plaintiff argues that the fiduciary

relationship also carries a presumption of undue influence, which then shifted the

burden of proof onto the Defendant to prove she did not engage in undue influence.

See, e.g., In re Estate of Pilkilton, No. 05-11-00246-CV, 2013 Tex. App. LEXIS

1080, at *3 (Tex. App.—Dallas Feb. 6, 2013, no pet.) (mem. op.) (citing Spillman v.

Spillman’s Estate, 587 S.W.2d 170, 172 (Tex. Civ. App.—Dallas 1979, writ ref’d

n.r.e.); Price v. Taliaferro, 254 S.W.2d 157, 163 (Tex. Civ. App.—Fort Worth 1952,

writ ref’d n.r.e.)); Rounds v. Coleman, 189 S.W. 1086, 1089 (Tex. Civ. App.—

Amarillo 1916, no writ) (“Where an antecedent fiduciary relation exists, a court of

equity will presume confidence placed and influence exerted.”); see also Quiroga,

2011 Tex. App. LEXIS 1959, at **12-13 (explaining that the person challenging the

validity of the instrument generally bears the burden of proving elements of undue

influence, but noting that “[i]n some cases involving confidential or fiduciary

relationships, . . . the burden shifts to the person receiving the benefit to prove the

fairness of the transaction”).



                                          19
      Fielding had the burden of establishing that a fiduciary relationship existed

between Tullos and Charles. See In re Estate of Coleman, 360 S.W.3d 606, 611 (Tex.

App.—El Paso 2011, no pet.). Once a contestant presents evidence of a fiduciary

relationship, a presumption of undue influence may arise and the other party then

bears the burden to come forward with evidence to rebut the presumption. Estate of

Pilkilton, 2013 Tex. App. LEXIS 1080, at *31 (citing Spillman, 587 S.W.2d at 172;

Price, 254 S.W.2d at 163); see also Quiroga, 2011 Tex. App. LEXIS 1959, at **12-

13.

      Such a rebuttable presumption shifts the burden of producing evidence to the

party against which it operates. See Hot-Hed, Inc. v. Safehouse Habitats (Scotland),

Ltd., 333 S.W.3d 719, 730 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); Long

v. Long, 234 S.W.3d 34, 37 (Tex. App.—El Paso 2007, pet denied); All Am. Builders,

Inc. v. All Am. Siding, Inc., 991 S.W.2d 484, 489 (Tex. App.—Fort Worth 1999, no

pet.) (citing Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1993)). Once

evidence contradicting the presumption has been offered, the presumption is

extinguished. Id. The case then proceeds as if no presumption ever existed. See Tex.

Nat. Res. Conservation Comm’n v. McDill, 914 S.W.2d 718, 724 (Tex. App.—

Austin 1996, no writ). A rebuttable presumption does not shift the ultimate burden



                                        20
of proof. See Garza v. Mission, 684 S.W.2d 148, 152 (Tex. App.—Corpus Christi

1984, writ dism’d w.o.j.); see also Saenz, 873 S.W.2d at 359.

      The Plaintiff acknowledges the Estate did not state a claim for breach of a

fiduciary duty, however the Plaintiff argues that a fiduciary relationship existed

between Charles and Tullos, the effect of which is to shift the burden of proof onto

Tullos to disprove undue influence. Assuming without deciding that Tullos owed

Charles a fiduciary duty, it would not shift the ultimate burden of proof in the case

to Tullos, but it would invoke the application of a rebuttable presumption. Tullos

could rebut the presumption by coming forward with evidence showing the fairness

of the transaction. See Young v. Fawcett, 376 S.W.3d 209, 216 (Tex. App.—

Beaumont 2012, no pet.); Vogt v. Warnock, 107 S.W.3d 778, 784 (Tex. App.—El

Paso 2003, pet. denied). If Tullos’s summary judgment evidence contradicted the

presumption, the presumption was extinguished. Plaintiff retained the ultimate

burden of proof on her claims. See Saenz, 873 S.W.2d at 359.

                               Appellant’s Argument

      Appellant argues that the trial court erred in granting summary judgment in

favor of the Appellee because “genuine issues of material facts exist that Appellee

unduly influenced Charles Hodge.” According to Appellant, “circumstantial

summary judgment evidence” supports all the factors outlined in Rothermel. See 369

                                         21
S.W.2d 917. Appellant argues that considering the evidence in a light most favorable

to Appellant, the non-movant, the summary judgment evidence establishes fact

issues that preclude summary judgment on the undue influence claim.

                                  Undue Influence

      In Texas, the rules guiding a determination of the existence of undue influence

apply substantially alike to wills, deeds, and other instruments. Bradshaw v.

Naumann, 528 S.W.2d 869, 871 (Tex. Civ. App.—Austin 1975, writ dism’d). To set

aside an instrument based on undue influence, the party claiming undue influence

must prove (1) the existence and exertion of an influence; (2) the effective operation

of such influence so as to subvert or overpower the mind of the property owner at

the time the instrument was executed; and (3) the execution of an instrument that the

property owner would not have executed but for such influence. See Rothermel, 369

S.W.2d at 922.

      To satisfy the first element, the party contesting an instrument must show that

an undue influence existed and was exerted. Id. The contesting party focuses on facts

showing the opportunities for the exertion of the alleged influence, the circumstances

of the drafting and execution of the instrument, the existence of a fraudulent motive,

and whether the person executing the instrument was habitually under the control of

another. Id. at 923. The exertion of influence, however, cannot be inferred from

                                         22
opportunity alone, such as might result from taking care of the property owner or

seeing to his needs. Id. There must be proof showing both that the influence existed

and that it was exerted. Id.

      To satisfy the second element, the contesting party must show that the exertion

of the influence subverted or overpowered the mind of the property owner at the

time he signed the instrument. Id. at 922. The focus of this element is on the property

owner’s state of mind and evidence relating to his ability to resist or susceptibility

to the influence of another, such as mental or physical infirmity. Id. at 923. But

evidence that a property owner was susceptible to influence or incapable of resisting

it does not prove that his free will was in fact overcome when the instrument or act

of the owner was made. Id.; Guthrie, 934 S.W.2d at 832. Likewise, a close

relationship or the fact the other party was a caretaker would not be sufficient to

show undue influence. See, e.g., Guthrie, 934 S.W.2d at 832; Evans, 923 S.W.2d at

715. Influence is “undue” when the property owner’s volition is destroyed and the

resulting instrument expresses the wishes of the one exerting the influence.

Rothermel, 369 S.W.2d at 922. Undue influence may include force, intimidation,

duress, persistent requests or demands, or deceit. Id.

      To meet the third element, the contesting party must show that the property

owner would not have executed the challenged instrument but for the undue

                                          23
influence. Id. In general, this element focuses on whether the instrument makes an

unnatural disposition of property. Id. at 923. A disposition may be unnatural, for

example, if it excludes a property owner’s natural heirs or favors one heir at the

expense of others who ordinarily would receive equal treatment. See Long v. Long,

125 S.W.2d 1034, 1036 (Tex. 1939). Even so, the disinheritance of close relatives

or loved ones is not necessarily unnatural. See, e.g., Guthrie, 934 S.W.2d at 832

(exclusion of testator’s only living son from will not unnatural given strained and

distant relationship between him and his mother). A property owner’s preference for

one beneficiary over others may be unnatural if the record does not disclose a

reasonable basis for the preference or contains proof that calls the preference into

question or discredits it. See Rothermel, 369 S.W.2d at 923-24; Curry v. Curry, 270

S.W.2d 208, 213 (Tex. 1954); Craycroft v. Crawford, 285 S.W. 275, 278-79 (Tex.

1926).

      The person challenging the validity of an instrument generally bears the

burden of proving the elements of undue influence by a preponderance of the

evidence. Evans, 923 S.W.2d at 715. Undue influence may be established by

circumstantial evidence, but such evidence must be probative of the issue and not

merely create a surmise or suspicion that such influence existed at the time the

document was executed. Id.; Guthrie, 934 S.W.2d at 831 (citing Reynolds v. Park,

                                        24
485 S.W.2d 807, 813 (Tex. Civ. App.—Amarillo 1972, writ ref’d n.r.e.)). Undue

influence cannot be inferred by opportunity alone, and there must be some evidence

to show that the influence was not only present, but that it was in fact exerted with

respect to the execution of the challenged instrument itself. See In re Estate of

Sidransky, 420 S.W.3d at 96 (citing Cotten v. Cotten, 169 S.W.3d 824, 827 (Tex.

App.—Dallas 2005, pet. denied)).

                                 Deposition Testimony

      In her deposition, Tullos testified that she worked for Charles seven days a

week, her duties included cleaning, cooking, driving for Charles, and accompanying

him on doctors’ appointments, and that Charles had mobility issues that required

him to use a cane or walker. Tullos explained that she would write out checks for

Charles, and he would sign them, but he reviewed his bank statements himself.

Tullos used Charles’s credit cards for groceries, gasoline, and at the drugstore, and

she had a card tied to Charles’s Discover and Chase accounts. Tullos testified that

Charles sometimes paid for her income tax preparation, she put Charles on her cell

phone account, and she and Charles would alternate paying the cell phone bill.

According to Tullos, Charles also spent holidays with her family as well as attended

her grandchildren’s birthdays.



                                         25
      Tullos agreed that Charles trusted her and had confidence in her. Tullos did

not recall whether she was present when the 2004 beneficiary designation was

executed. According to Tullos, the first time she knew she was the beneficiary on

Charles’s UBS accounts was on December 17, 2014. Tullos acknowledged her

signature was on the 2004 Account Application form, but she did not know who

wrote in “agent” on the form. Tullos agreed that, following Charles Hodge’s death,

she used about $30,000 from the UBS accounts to buy a new car, gave each of her

children $100,000, paid about $4500 for new furniture, and paid her property taxes

with the money.

      Gretchen Hargroder testified in her deposition that UBS provides training on

how to identify vulnerable or incapacitated clients. She explained that she had never

seen any indication that Tullos was exerting an improper influence over Charles

regarding his business affairs and she did not see any indication that Charles was a

“vulnerable client[.]” According to Hargroder, she encouraged Charles to name

someone as having his power of attorney when he was in a rehabilitation facility in

2014, and he voluntarily named Tullos in the power of attorney. Hargroder explained

that she and Ridley met with Charles about twice a year and that Tullos “was almost

always there, but [Tullos] would pretty much excuse herself from the conversations

once it turned into a conversation about his accounts.”

                                         26
      Hargroder regarded Charles as intelligent and informed about investments

generally, and she thought that he seemed to understand the nature of his accounts.

She also did not regard Charles as lacking mental capacity or to be “heavily

medicated” but thought Charles “always appeared . . . to be in charge of his faculties

and he didn’t appear to be functioning with any dementia or influence[.]” Hargroder

explained that, although Charles would sometimes invite Tullos to sit in on meetings,

Charles “was in charge of his accounts, and he made the decisions on the accounts.

[Tullos] had no . . . influence or input on those decisions whatsoever.” Hargroder

never observed Tullos telling Charles what to do about his financial accounts, and

she explained that Tullos was not curious about the accounts and Tullos did not want

to be involved with Charles’s finances. Hargroder testified that she recalled Charles

saying he would like to help his nephew George Bishop, but Charles did not think

giving the nephew money would be helpful because, according to Charles, George

had a drug problem.

      Hargroder explained:

      Q. Okay. So, when we’re talking about Account No. [] -- that’s the
      transfer on death agreement -- Mr. Hodge indicated that he wanted
      Janniece Tullos to be his beneficiary; is that correct?

      A. He did.

      Q. And did he ever tell you that in person?

                                         27
      A. He did.

      Q. Did he tell you why he wanted her to be his beneficiary?

      A. Because she took care of him and she was there for him and she took
      him to all his appointments and she -- you know, she was the one who
      cared for him.

      Q. And do you know how long she had cared for him?

      A. I know she took care of his late wife, and I think that she took care of
      him from the time that his wife died.

      Q. It was for a number of years; is that right?

      A. Yes. Yes, it would have been a number of years.

      Richard Ridley testified that he never saw any indication that Charles lacked

the mental capacity to understand his UBS accounts. Ridley testified that Charles

appeared to have an understanding of investments that was “way above average.”

Ridley also did not recall ever seeing Charles under the influence of medication.

Ridley explained that Charles broached the subject of changing his beneficiary

designations in 2011 because E.J. Wood had died and Charles thought Shirley would

not live long. According to Ridley, Charles told him “‘I do not think my sister is

going to last a long time; and I would like you to make Janniece Tullos the

beneficiary on both of the accounts.’” Ridley explained that when Tullos drove

Charles to the UBS office, Ridley offered to come out to Charles’s car with a notary

because it might be easier for Charles, and Charles agreed and executed the
                                     28
documents in the car in front of the notary. Ridley testified that he asked Charles

“You know, Charles, between these two accounts, this is a great deal of money, in

my opinion. Are you -- are you certain this is what you want to do?,” and Charles

replied “Yes, it is.” Ridley explained:

             I will repeat that I never felt in my dealings with Charles that he
      was out of control in any manner. He was always levelheaded. Charles
      was someone who . . . liked to talk about his investments. He enjoyed
      talking about them. And he was a pretty sharp fellow. . . . I never saw
      any incapacitation whatsoever, in person or on the phone.

      Ridley did not believe that Tullos ever tried to interfere in Ridley’s

relationship with Charles. Ridley explained that he reviewed the beneficiary

designations after some time and concluded that designating Tullos as beneficiary

“was perhaps proper because the relationship seemed to be a very fond relationship.”

      Laura Fielding testified in her deposition that she lacked personal knowledge

of any undue influence by Tullos:

      Q. But, first, I want to know if you know anything, anything that you’ve
      observed yourself; and then we’ll go to other people?

      A. About undue influence?

      Q. Yes.

      A. I don’t -- I don’t know how to word this.

      Q. Well, do the best you can.

      A. (No response)
                                          29
      Q. Or if you don’t know, you can -- that’s a perfectly good answer.

      A. I’m just going to say I don’t know.

      Q. All right.

      A. At this moment I don’t know.

Fielding and Joe Hodge also testified that they had no personal knowledge that

Charles lacked mental capacity.

      Fielding testified that the last time she spent time with Charles was in 2011 at

her aunt’s funeral. Fielding agreed that Charles had not visited her at her current or

previous home. Fielding also testified that she did not know where Charles was

during Hurricanes Rita or Ike, she did not know whether any of her cousins helped

him during the hurricanes, and she had not taken care of Charles or picked up

prescriptions for him.

      Another heir, Gwen Renee Pomonis, testified in her deposition as follows:

      Q. All right. So, do you have any personal knowledge of any examples
      where she exerted undue influence over him?

      A. The only thing I can say that I would consider undue influence is
      when I would go to visit him she would be there but she would leave
      the room and she would be in -- let’s say we were in the living room.
      She would be in the kitchen banging dishes around just as hard as she
      could, making a lot of noise.

      Q. Okay. So, how was that undue influence?

      A. I just think she wanted her presence to be known.
                                         30
      Pomonis testified that she was surprised that Tullos was a beneficiary on the

UBS accounts because Charles had “told [her] several times he wanted [Pomonis]

to go down there and sign paperwork with him.” Pomonis also explained that she

was never able to go with Charles to the UBS office. Pomonis said that, when she

called Charles, “Tullos would screen the calls or not let [her] talk to [Charles] or he

would be completely out of it for the day.” According to Pomonis: she did not spend

holidays with Charles after 2011, and she asked him if he wanted to spend holidays

with her family in 2012 and 2013, but he told her he “couldn’t really leave his house

because of home healthcare[.]” Pomonis also testified that she did not take Charles

with her when she evacuated for Hurricane Rita in 2005 and that her parents told her

that Charles went with Tullos. Pomonis testified that she did clean up Charles’s yard

after the hurricanes.

      The deposition excerpts from Donald Hodge and Joe Hodge included in the

appellate record include no testimony about any personal knowledge of undue

influence. Donald Hodge testified that he never visited Charles and that Charles

never visited Donald after 2004. Joe Hodge testified that he visited Charles “a couple

of times[]” between 2004 and 2014, but Charles never promised that he was planning

to leave money or property to Joe.



                                          31
                                      Analysis

      After conducting a de novo review of the record before us, considering the

motions for summary judgment and responses, and after examining the summary

judgment evidence, the relationship between Tullos and Charles, the opportunity for

influence or deception, the circumstances surrounding execution of the challenged

instruments, the existence or nonexistence of a fraudulent motive, and whether there

was evidence of control by Tullos over Charles when he executed the challenged

instruments, the fairness of and overall intention of Charles to designate Tullos as

the beneficiary of the accounts, and whether there was a genuine issue of material

fact regarding the exertion of undue influence, we conclude the trial court did not err

in granting the summary judgment. See Rothermel, 369 S.W.2d at 923.

      Both Hargroder and Ridley testified that they observed Charles to be in control

of his finances and accounts. By contrast, the heirs could not provide any personal

knowledge of Tullos’s alleged undue influence over Charles. Although an

opportunity for influence may have existed because of the close relationship between

Tullos and Charles and because of the degree of care provided by Tullos, opportunity

alone is not sufficient to prove undue influence without evidence of exertion of

influence. See In re Estate of Sidransky, 420 S.W.3d at 96. The record gives no

indication of force, intimidation, duress, persistent requests or demands, or deceit by

                                          32
Tullos. See Rothermel, 369 S.W.2d at 922. Consequently, the trial court would not

have erred in concluding that summary judgment evidence offered by Tullos

rebutted any presumption of undue influence. See Saenz, 873 S.W.2d at 359.

      There also was no evidence that Charles would not have designated Tullos as

his beneficiary but for the alleged undue influence. See Rothermel, 369 S.W.2d at

922. Hargroder testified that Charles wished to designate Tullos as his beneficiary

in recognition of the care she had provided, and Ridley testified that Charles assured

him that he wished to designate Tullos as the beneficiary. The heirs testified that

they had little contact with Charles and provided little care for him, including a lack

of involvement with Charles during Hurricanes Rita and Ike. As a result, we cannot

say that material issues of fact exist on Plaintiff’s claims for undue influence.

      Even assuming without deciding that a fiduciary relationship existed between

Charles and Tullos, and after considering the evidence in the light most favorable to

the nonmovant, we conclude that Tullos was entitled to a summary judgment on the

undue influence claim. Tullos established the fairness of the designations and

rebutted any presumption of undue influence. See Young, 376 S.W.3d at 216; Vogt,

107 S.W.3d at 784. We cannot say the trial court erred in concluding there was no

genuine issue of material fact on the undue influence claim because the undisputed

summary judgment evidence creates no fact issue as to the existence and exertion of

                                          33
an influence by Tullos, the operation of which subverted or overpowered Charles at

the time the beneficiary designations were executed, nor is there a genuine issue of

material fact as to whether Charles would have designated Tullos as his beneficiary

but for undue influence. See Rothermel, 369 S.W.2d at 922; see also Evans, 923

S.W.2d at 715 (evidence of undue influence must not merely create surmise or

suspicion).

      We need not address Appellant’s third issue about Appellee’s limitations

defense. See Tex. R. App. P. 47.1; Horton v. Walden Marina, No. 09-15-00491-CV,

2017 Tex. App. LEXIS 9124, at *16 (Tex. App.—Beaumont Sept. 28, 2017, no pet.)

(mem. op.).

      We also note that Appellant’s opening and reply briefs on appeal do not

address any error on Plaintiff’s claim for unjust enrichment. An appellant’s failure

to brief an issue effects a waiver of that issue on appeal. See Tex. R. App. P. 38.1(h),

(i); Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 n.1 (Tex.

2001); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex.

1994). Likewise, Appellee did not cross-appeal on its counterclaim for attorney’s

fees, and we do not address the attorney’s fee counterclaim because of Appellee’s

waiver thereof. See Tex. R. App. P. 38.1(h), (i); Fredonia State Bank, 881 S.W.2d

at 284-85.

                                          34
      We find no error in the trial court’s grant of summary judgment in favor of

Tullos, and in denying the Estate’s requested relief. We overrule all the Appellant’s

issues.

      We affirm the judgment of the trial court.

      AFFIRMED.


                                                    _________________________
                                                       LEANNE JOHNSON
                                                             Justice


Submitted on June 29, 2018
Opinion Delivered August 30, 2018

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                         35
