     Case: 17-20077      Document: 00514274617         Page: 1    Date Filed: 12/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 17-20077                                FILED
                                  Summary Calendar                      December 15, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
JULIETA ALEJANDRA GOMEZ OLVERA,

              Plaintiff - Appellee

v.

JUAN MAURICIO NELLIGAN,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-1878


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Juan Mauricio Nelligan appeals an award of damages owed to Julieta
Alejandra Gomez Olvera that resulted from a jury trial rendering a verdict
against Nelligan. For the following reasons, the district court’s judgment is
AFFIRMED.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        No. 17-20077
                                               I
       In July 2014, Olvera and Nelligan reconnected online and rekindled a
relationship the two shared 20 years before. Olvera was a recent widow living
in Mexico with her children and used insurance proceeds from her husband’s
death as her primary income source. At the time, Nelligan was living in
Houston, Texas and was in a “vicious cycle of debt.” The relationship
progressed quickly and Nelligan wanted Olvera and her children to move to
Texas. But, he could not afford a home or vehicle for them because of his debt.
Olvera eventually gave over $240,000, from her insurance proceeds, to
Nelligan to help him pay off his debt. Shortly thereafter, the relationship ended
and Olvera was left struggling to support her family because she had given
Nelligan most of her insurance funds.
       Olvera sued Nelligan for fraud, breach of contract, promissory estoppel,
unjust enrichment, money had and received, and other causes of action in
connection with the $243,960.04 in life insurance proceeds that she claims
Nelligan “swindled” from her. Nelligan countered that the money was a gift
from Olvera, so he owed her nothing. The case was tried to a jury and a verdict
against Nelligan was returned. The district court rendered judgment in the
amount of $243,960.04 for economic damages, $50,000 for mental anguish, and
$60,000 in punitive damages, as awarded by the jury. Nelligan appeals the
district court’s judgment and contends that the district court erred in
instructing the jury that Nelligan had to prove, by clear and convincing
evidence, that Olvera gifted him the money. 1




       1In her response brief, Olvera raises an issue of waiver. The record indicates that
Nelligan at least raised the burden of proof issue before the district court. This court will not
address this issue, however, because Nelligan’s appeal fails on the merits.
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                                 No. 17-20077
                                       II
      The district court’s instructions to the jury are reviewed for abuse of
discretion. Le Boeuf v. K-Mart Corp., 888 F.2d 330, 334 (5th Cir. 1989).
“Although we afford broad discretion in fashioning jury instructions, the trial
court must nevertheless ‘instruct the jurors, fully and correctly, on the
applicable law of the case, and . . . guide, direct, and assist them toward an
intelligent understanding of the legal and factual issues involved in their
search for truth.’” E.E.O.C. v. Manville Sales Corp., 27 F.3d 1089, 1096 (5th
Cir. 1994) (quoting Bender v. Brumley, 1 F.3d 271, 276 (5th Cir. 1993)). “On
appeal, the charge must be considered as a whole, and so long as the jury is
not misled, prejudiced, or confused, and the charge is comprehensive and
fundamentally accurate, it will be deemed adequate and without reversible
error.” Id. (quoting Davis v. Avondale Indus., Inc., 975 F.2d 169, 174–75 (5th
Cir. 1992).
                                      III
      Nelligan contends that the district court erred in instructing the jury
that he had to prove, by clear and convincing evidence, that Olvera gifted him
the money, instead of “swindling” her, as she contended. By requiring Nelligan
to meet this burden, Nelligan purports that the district court incorrectly
shifted the burden from Olvera to him.
      Texas law, the applicable state law in this diversity lawsuit, has squarely
addressed the burden of proof when one party asserts the transfer of funds was
a gift. “A party claiming a gift has the burden to prove it. . . . by clear and
convincing evidence.” Oadra v. Stegall, 871 S.W.2d 882, 891 (Tex. Ct. App.
1994) (internal citation omitted); see also In re Estate of Glenn, No. 2-05-380-
CV, 2006 WL 3437799, at *7 (Tex. Ct. App. Nov. 30, 2006) (“[T]he trial court
correctly instructed the jury that a gift must be proven by clear and convincing
evidence.” (internal quotations omitted)); Dorman v. Arnold, 932 S.W.2d 225,
                                       3
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                                 No. 17-20077
227 (Tex. Ct. App. 1996) (“The person claiming that a gift was made must prove
the gift by clear and convincing evidence.”).
      The court’s jury instruction included:
       Mr Nelligan has the burden to prove that the transfers were
       gifts, by clear and convincing evidence. Clear and convincing
       evidence means the measure or degree of proof that produces a
       firm belief or conviction of the truth of the allegations sought to
       be established. Do you believe by clear and convincing evidence,
       that Ms. Olvera made a gift of the $243,960.04 to Mr. Nelligan?
       Answer “yes” or “no.”

Accordingly, the court necessarily did not abuse its discretion when it provided
the jury with an accurate instruction on the applicable law.
                                       IV
      The judgment of the district court is AFFIRMED.




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