                               NUMBER 13-09-259-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


RENE PERALEZ,                                                                    Appellant,

                                             v.

NOE PERALEZ, ET AL.,
                                                                                Appellees.


                       On appeal from the Probate Court
                           of Hidalgo County, Texas.


                           MEMORANDUM OPINION

              Before Justices Rodriguez, Benavides, and Vela
                  Memorandum Opinion by Justice Vela

       This is an appeal from a jury award in a will contest and fraud case. Appellees, Noe

Peralez, Carlos Peralez, Jr. (“Charlie”), and Joel Peralez (“the brothers”), filed suit against

their youngest brother, Rene Peralez, claiming that Rene unduly influenced his father,
Carlos Peralez, Sr., to prepare a will that left the bulk of his estate to Rene.1 The brothers

also filed an action for fraud against Rene, pleading that Rene told them if they did not

contest probating the will, he would divide the estate equally among the four of them. They

claim that, by reneging on this promise, he defrauded them. The jury found that Rene had

unduly influenced his father and that Rene had defrauded his brothers. The trial court set

aside the will, which had been previously admitted to probate, and awarded each of the

brothers $100,000 for pecuniary loss caused by the fraud, $40,000 for “actual

consequential loss sustained in the past,” $25,000 for “actual emotional distress sustained

in the past,” and $75,000 in exemplary damages. On appeal, Rene challenges the legal

sufficiency of the jury’s findings of undue influence and fraud, and the amounts and

evidentiary support for the consequential and emotional distress damage awards. He also

claims lack of subject matter jurisdiction with respect to the fraud claim because its

disposition was not related to the administration of the estate. We affirm, in part, and

reverse and render, in part.

                                     I. PROCEDURAL BACKGROUND

        Carlos Peralez, Sr., the testator, died of cancer on March 18, 2006. He left a will

that he had executed on March 7, 2006, less than two weeks before his death, giving the

majority of his $391,354.45 estate to Rene, with the exception of a house, which he

devised to Rene’s daughter, Sandy. He had no prior will. In the will, Carlos provided that

each of his sons would receive certain EE United States Savings bonds that he had

purchased for them throughout the years. The number of bonds Carlos purchased and the


        1
        The appellees also filed suit against Sylvia Peralez, Rene’s wife, and Sandy Peralez-Escam illa,
Rene’s daughter. All claim s were disposed of prior to jury subm ission and are not the subject of this appeal.

                                                      2
values of the bonds were not equal. For instance, he purchased 121 bonds for Rene,

worth $53,000, and only one for his son, Noe, worth $15,216. Although these were not

probate assets, Richard Talbert, Carlos’s attorney, testified that he put them in the will at

Carlos’s request as a way of letting his other sons know that they had not been forgotten.

The will stated that Carlos was fully mindful of the fact that he had three additional sons

and the disposition of his estate was not reflective of the love he had for each of his sons.

       The evidence at trial showed that Rene had left his employment and was attempting

day trading. The other three sons were gainfully employed. Rene and his family had

always lived close to Carlos, while the other sons lived farther away. There was testimony

that each of the four sons was close to his father and conflicting testimony that some of the

four sons had problems with their father over various matters throughout the years. The

evidence was undisputed that Carlos was a strong-willed and private man.

       The brothers first read the will on March 24, 2006, and were suspicious. Rene filed

the application to probate the will and request for letters testamentary on April 26, 2006.

The estate was administered by April 17, 2007. He did not inform his brothers until after

he had probated the will. The brothers filed their will contest on June 27, 2007. After a two

week trial on the merits, the trial court entered judgment in accordance with the jury’s

determination that Rene had unduly influenced his father and had defrauded his brothers.

                                   II. UNDUE INFLUENCE

A. Trial Testimony

       The evidence offered at trial was conflicting and contentious. The brothers urged

that Rene poisoned their father against them through lies and manipulation, inducing



                                             3
Carlos, who was in a weakened condition, to leave everything to him. Rene argued that

he was closest to his father throughout his life, he cared for his father during his last illness,

and his father’s will reflected this close relationship.

       1. Execution of the Will

       The following facts regarding the actual execution of the will are undisputed as

Richard Talbert, Carlos’s attorney, was alone with Carlos when the initial discussion about

the disposition occurred. Carlos paid two visits to Talbert shortly before his death. During

the first appointment, on February 27, 2006, Carlos told Talbert that he wanted to write a

will “to get his affairs in order.” Talbert said that Carlos informed him that his illness was

terminal. Talbert testified that Carlos told him that he wanted the house on Georgia Street

to go to his granddaughter and the rest of his assets to go to his son, Rene. His

granddaughter was already living in the house. According to Talbert, Carlos knew what he

wanted. Talbert had no concerns about Carlos’s judgment. Talbert said that Carlos told

him that there had been different relationships with his sons since his divorce from his

sons’ mother and that some of his sons had been at his house going through his

documents. Talbert testified that he saw nothing to indicate that Carlos was unable to

make an intelligent decision concerning his will.

       On March 7, 2006, Carlos went to Talbert’s office to execute his will. At this visit,

Carlos was accompanied by Alonzo Peralez, his brother. The will was executed without

changes. Talbert noted that Carlos seemed weaker physically than he was the week

before, but Talbert opined that Carlos was in full control of his mental faculties. Talbert

testified that neither Rene nor his wife had ever contacted him prior to the execution of the

will. He saw no undue influences upon Carlos. Carlos’s reputation in the community was

                                                4
as a strong-willed individual. That is the person Talbert saw in his office the day the will

was executed. Lupita Talbert, a witness to the will as well as Talbert’s wife and office

manager, testified that when she saw Carlos at the office on February 27th, he was able

to converse and was walking without assistance. He told her he needed to get his affairs

in order because “some of his sons were asking about this and that.”

       There was no direct testimony or circumstantial evidence suggesting that Rene was

there when the will was executed. There was also no direct evidence that Rene had

anything to do with the preparation of the will, including choosing Talbert as an attorney.

Talbert had represented Carlos in the past in real estate matters. There was evidence that

at the time Carlos executed the will he was in a weakened state and was on pain

medication, and there were suggestions that it would have been difficult for Carlos to have

driven himself to Talbert’s office in the condition he was in. There was no direct evidence

that Rene actually participated in taking Carlos to Talbert’s office.

       2. Relationships with the sons

       The contestant sons were surprised at Carlos’s disposition. There was testimony

that each of the three contestants had a strong and close relationship with Carlos. Charlie

was the oldest. He is a refrigerator mechanic, working for an appliance company in

McAllen. He did not testify at trial. Noe Peralez, the second-oldest, is successfully

employed by a school district. Joel, the third oldest, is an attorney.

       Noe testified that he had a good relationship with his father and continued to see

him after his parents divorced. According to Noe, Carlos treated all of his children and

grandchildren the same. Noe stated that he had stayed with his father when his father had

knee surgery and had lunch with his father once or twice a week. Carlos often came to

                                             5
Noe’s house. The entire family celebrated holidays and important events together. Noe

introduced evidence showing how close Carlos was to his family, including family

photographs and oral testimony recounting the times Carlos spent with Noe’s family.

       Noe testified that his father became weaker and weaker as he neared death and

that Carlos was cranky, depressed, and on pain medication. Noe said that his father had

a bad temper and could be vindictive. He believed that his father was vulnerable to having

the relationship between Carlos and the brothers poisoned by Rene. Noe heard that

Carlos believed that the sons were snooping around his property. Noe denied that this was

true. Rather, Noe believed that Carlos had been told this by Rene because Rene wanted

to hurt Carlos’s relationship with his other sons.

       Noe also testified regarding Rene’s propensity for lying. For instance, he recounted

an incident in which Rene had lied under oath that Carlos had filled out some checks for

bills a few days before his death. In fact, Carlos had signed the checks, but Rene and his

daughter had completed the checks. Noe also testified that Rene lied to him by telling him

that he didn’t know whether Carlos had a will, when, in fact, Carlos gave Rene a copy of

the will before he died.

       Joel testified that his father told him he was proud of him. When his father became

ill, Joel suggested chelation therapy to his father and offered to pay for it. He also said that

when Rene told him that Carlos was worried about his funeral expenses, Joel paid for the

funeral. His father never thanked him, which Joel found suspicious. Joel believed that

Rene never told Carlos that Joel had paid for the funeral. According to Joel, Rene would

“shadow” him during his visits to Carlos. Joel discussed an incident in which he took soup

to his father and was turned away by Rene who told him that the refrigerator wasn’t

                                               6
working. At that time, Rene had moved in to help his father because he was on hospice

care and could not be alone. In fact, Rene was not telling the truth about the refrigerator

not working. Joel also thought it was suspicious that Rene had been staying with his father

for three days, but left to do some work at his own home on the precise day and time his

father went to Talbert’s office to discuss the will. In Joel’s opinion, Rene left so that it

would appear he did not have anything to do with the will.

       Rene testified that Carlos was his best friend in life. He said that two of his brothers

were at the Golden Gloves tournament a few weeks before his father’s death. The

brothers denied this. He said his brother Charlie only came to see his father three times

from his diagnosis until his death. Rene moved into his father’s home on March 3, and

remained there until Carlos died. Rene introduced evidence of several bank accounts

Carlos had opened from 1996 through 2003, naming Rene as the beneficiary of payable

on death accounts. For instance, Carlos opened an account with City National Bank on

April 25, 2003, payable on death to Rene Peralez. He named Sandy Escamilla, his

granddaughter, as a person who would always know his location. Carlos named Rene

Peralez as the beneficiary of his account with Elsa State Bank when he opened the

account on October 1, 2002. Rene was also named as a co-owner of several certificates

of deposit that he testified he was unaware of prior to his father’s death. Rene was also

the beneficiary of his father’s teacher retirement account at the time his father retired from

the school district, entitling Rene to more than $900 per month upon Carlos’s death.

       Rene testified that he didn’t shadow his brothers, there was no conspiracy between

he and his wife and daughter to unduly influence Carlos, and he simply misspoke when he

testified that his father had completed the entire check when the final bills were paid, when,

                                              7
in fact, Carlos had only signed them.

       Beatriz Peralez, Carlos’s ex-wife and the mother of the four brothers, testified that

contrary to Rene’s testimony, there were not “two camps.” Rene had previously testified

that he and his father constituted one camp and his mother and the three will contestants

were the other. She said that Rene had once told her that he wished his father would die

so he wouldn’t have to put up with him. She stated that Rene had lied about his brothers’

reactions to their father’s death. Rene had testified that the brothers were laughing after

their father had died. Carlos’s brother also testified that the brothers were “giggling and

laughing” after his death.

       Scott Henderson, the hospice nurse, testified that Carlos was a very private

individual. Henderson stated Rene was at his father’s house for the initial admission to

hospice. Carlos did not begin using morphine until the very end of his life. He wanted to

be in control. Henderson said that Carlos wanted to be in control until the very end and did

not ever appear to be controlled by Rene. Carlos’s condition declined rapidly during the

last three days of his life. According to Henderson, Rene took exemplary care of Carlos.

B. The Law–Undue Influence

       A person of sound mind has the right to dispose of his property in the manner he or

she wishes. Rothermel v. Duncan, 369 S.W.2d 917, 923 (Tex. 1963). In order to establish

undue influence, a party has the burden to show: (1) the existence and exertion of

influence; (2) the effective operation of an influence so as to subvert the will or overpower

the mind of the grantor at the time of the execution; and (3) the execution of an instrument

the maker would not have executed but for such influence. Id. at 922. The elements of



                                             8
undue influence may be proven by circumstantial, as well as direct, evidence. Id. However,

“the exertion of undue influence cannot be inferred by opportunity alone.” Cotten v. Cotten,

169 S.W.3d 824, 827 (Tex. App.–Dallas 2005, pet. denied). There must be some evidence

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

making of the instrument.      Id.   Mere requests or entreaties to execute a favorable

instrument are not sufficient to establish subversion or overpowering of the maker's will,

unless the entreaties are shown to be so excessive as to subvert the will of the maker.

Curry v. Curry, 270 S.W.2d 208, 212 (Tex. 1954).

       The exercise of undue influence may be by fraud, deceit, artifice and indirection. In

re Estate of Olsson, 344 S.W.2d 171, 173-74 (Tex. Civ. App.–El Paso 1961, writ ref’d

n.r.e.). “More often than not, undue influence is impossible to establish by direct proof, and

may only be shown by circumstances.” Id. at 174. In Olsson, there was no direct evidence

that the appellant was physically present when the testatrix signed the will. Id. at 178.

However, the court found that it did not preclude a jury finding that undue influence was

exerted at the time of making the will because the effect of the influence continued until the

time of the execution of the instrument. Id. at 179. In determining the existence of undue

influence, it is proper to consider all evidence of relevant matters that occurred within a

reasonable time before or after the will’s execution. Watson v. Dingler, 831 S.W.2d 834,

837 (Tex. App.–Houston [14th Dist.] 1992, writ denied)

       Factors to be considered in determining the existence of undue influence include the

following:   (1) the nature and type of relationship existing between the testator, the

contestants, and the party accused of exerting such influence; (2) the opportunities existing



                                              9
for the exertion of the type or deception possessed or employed; (3) the circumstances

surrounding the drafting and execution of the testament; (4) the existence of a fraudulent

motive; (5) whether there had been a habitual subjection of the testator to the control of

another; (6) the state of the testator's mind at the time of the execution of the testament; (7)

the testator's mental or physical incapacity to resist or the susceptibility of the testator's

mind to the type and extent of the influence exerted; (8) words and acts of the testator; (9)

weakness of mind and body of the testator, whether produced by infirmities of age or by

disease or otherwise; and (10) whether the testament executed is unnatural in its terms of

disposition of property. In re Estate of Graham, 69 S.W.3d 598, 609-10 (Tex. App.–Corpus

Christi 2001, no pet.).

       When circumstantial evidence is relied upon, the circumstances must be so strong

and convincing and of such probative force that would lead a well-guarded mind to a

reasonable conclusion not only that undue influence was exercised but that it controlled the

will power of the testator at the precise time the will was executed. Green v. Earnest, 840

S.W.2d 119, 121 (Tex. App.–El Paso 1992, writ denied); see also In re Estate of Longuet,

Nos. 13-99-549-CV, 13-99-637-CV, 2000 WL 35729674, at *3 (Tex. App.–Corpus Christi,

Dec. 21, 2000, pet. denied) (not designated for publication). Circumstances relied upon to

establish the elements of undue influence must be reasonably satisfactory and convincing

in character, and they must not be equally consistent with the absence of the exercise of

such influence. In re Estate of Steed, 152 S.W.3d 797, 810 (Tex. App.–Texarkana 2004,

pet. denied).




                                              10
C. Analysis

       When reviewing the evidence, this Court may not substitute its judgment for that of

the jury even if it disagrees with the outcome. Mar. Overseas Corp. v. Ellis, 971 S.W.2d

402, 407 (Tex. 1998). When enough evidence is before the fact finder that reasonable

minds could differ on the meaning of the evidence or the conclusions or inferences to be

drawn from that evidence, the court may not substitute its judgment for that of the jury.

Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).

       There was evidence that Carlos was in a weakened condition and in pain at the end

of his life. He was on medication and was relying on Rene to assist him with his basic

needs. There was evidence that Rene had the opportunity to unduly influence Carlos as

he was acting as his care giver during the final days of Carlos’s life. There was also more

than a scintilla of evidence of motive. Rene had given up his job, either to retire or for some

other reason. He was dipping into his 401k account to live. There was evidence that his

wife was also not employed. And, there was evidence that someone was telling Carlos that

the brothers were snooping around and looking into his affairs. The brothers denied

snooping and Rene emphatically denied telling his father that his brothers were looking into

Carlos’s property. But the jury believed the brothers’ testimony over Rene’s. The jury could

have inferred deceit and an attempt on Rene’s part to influence Carlos. There was also

some testimony that Rene kept the brothers from seeing their father at the end of his life

and that Rene would “shadow” them when they visited. The jury could have inferred from

this testimony that Rene was attempting to unduly influence his father to leave everything

to Rene. There was also evidence that Carlos was going to divide his property equally

when he passed away. In sum, the jury could infer from this testimony, when combined with

                                              11
testimony that Carlos had always treated the four sons and their families equally, that there

existed circumstances of undue influence. The jury determined that Rene had the motive,

opportunity and, in fact, did unduly influence his father to leave Rene the bulk of his estate.

The evidence presented was more than a scintilla of evidence suggesting undue influence.

We will not substitute our judgment for that of the jury. We overrule issue one.

                                          III. FRAUD

A. Jurisdiction

       By issue two, Rene complains that the statutory probate court lacked jurisdiction over

his brothers’ fraud claim because its disposition was not related to the administration of the

estate. Rene argues that the fraud claim against him in his individual capacity is not a

matter appertaining to or incident to the estate. The claim was that Rene committed fraud

by telling Noe that he would divide the estate equally among the four brothers if they would

not file a will contest. When the brothers realized that he was not going to divide the estate

as he had promised, the brothers did contest the will. By the time they filed the will contest,

however, there was testimony that Rene had disposed of many of the estate assets,

including Carlos’s house. The brothers claim that Rene sold the home for far less than it

was worth.

       “After a will has been admitted to probate, any interested person may institute suit

in the proper court to contest the validity thereof, within two years after such will shall have

been admitted to probate . . . .” TEX . PROB. CODE ANN . § 93 (Vernon 2003). At the period

of time applicable here, the probate code provided that a statutory probate court had

jurisdiction over any matter appertaining to an estate or incident to an estate and could



                                              12
exercise pendent and ancillary jurisdiction necessary to promote judicial efficiency and

economy. TEX . PROB. CODE ANN . § 5(h), (i) (repealed by Acts 2009, 81st Leg. Ch.1351, §

12(h)). In proceedings in constitutional county courts and statutory county courts at law,

“the phrases ‘appertaining to estates’ and ‘incident to an estate’ in this Code include the

probate of wills . . . and also include, but are not limited to, all claims by or against an

estate, . . . and generally all matters relating to the settlement, partition, and distribution of

the estates of deceased persons.” TEX . PROB CODE ANN . § 5A(a) (repealed by Acts 2009,

81st Leg., ch 1351, §12(h), eff. Sept.1, 2009).

       Here, the parties filed a will contest in the statutory probate court. As part of their

claim, they sought to hold Rene, who was executor of the estate, liable for fraud involving

statements made concerning how the assets would be distributed if the will was not

contested. Pursuant to section 5(i), the court could exercise jurisdiction over ancillary

matters to promote judicial efficiency and economy. Since all of the brothers’ claims dealt

with Rene’s handling of the estate, the trial court did not err in hearing the fraud issue in the

interest of judicial efficiency and economy. We overrule issue two.

B. Evidentiary Issues

       By issues three through five, Rene complains that there was no evidence of fraud

in the inducement because the brothers chose to rescind any alleged contract when they

filed a will contest; there was no evidence offered of an enforceable contract or justifiable

reliance; and there was no evidence to support the award of damages.

       Rene first complains that the brothers are not entitled to have the will set aside and

recover damages for fraud because they chose not to stand on their contract, but instead

electing to contest the will. The jury found two different claims of wrongful conduct—unduly

                                               13
influencing Carlos to write a will leaving everything to Rene, and committing fraud against

the brothers by failing to distribute the estate equally after agreeing to do so. The purpose

of the doctrine of election of remedies is to prevent double recovery for a single wrong.

Vickery v. Vickery, 999 S.W.2d 342, 373 (Tex. 1999); Weeks Marine, Inc. v. Salinas, 225

S.W.3d 311, 322 (Tex. App.–San Antonio 2007, pet. dism’d). Here, the trial court set aside

the will and awarded the brothers the equivalent of their equal share of the estate. There

was more than one wrongful act that gave rise to different sets of damages. The brothers’

fraud claim would allow them to recover both actual, exemplary and consequential damages

if the evidence supported those damages, and the setting aside of the will brought the

parties back to the position they would have been in had no undue influence occurred. In

other words, the setting aside of the will was a separate wrong and another pleaded form

of relief. We overrule issue three.

       By issue four, Rene complains that there is no evidence of fraud because there was

neither evidence of an enforceable contract nor evidence of reliance on the alleged

agreement. The jury was charged that fraud occurs when a party makes a material

misrepresentation with either knowledge of its falsity or made recklessly, the

misrepresentation is made with the intention that it should be acted upon by the other party;

and the other party relies upon the misrepresentation and suffers injury. Both Noe and Joel

testified that the agreement Noe made with Rene was that Rene would split the estate

evenly in return for the brothers not contesting the will. The agreement was never reduced

to writing and Rene denied that he ever made the agreement. In fact, Joel did not testify

that Rene made that agreement with him. Apparently, the conversation regarding the

agreement took place between Noe and Rene. Noe testified as follows:

                                             14
               He—first he asked if we were going to contest the will. Before
               I answered he said, “Do not do that Noe, don’t go that route.
               You know, I’m going to split everything evenly with you guys.”
               That’s what he said, that’s what he told me.

       In terms of a timetable, Carlos died March 18, 2006; the application to probate the

will was filed on April 26, 2006; it was admitted to probate on April 17, 2007, and the

brothers filed their will contest two months later, on June 27, 2007. According to the

brothers, Rene told Noe he would split the estate if they did not contest the will. Rene did

not split the funds with them, so the brothers filed the will contest.

       Whether an agreement fails for indefiniteness is a question of law for the court. T.O.

Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992); Knowles v.

Wright, 288 S.W.3d 136, 143 (Tex. App.–Houston [1st Dist.] 2009, pet. denied). “In order

to be legally binding, a contract must be sufficiently definite in its terms so that a court can

understand what the promisor undertook.” T.O. Stanley Boot Co., Inc., 847 S.W.2d at 221.

Although Texas courts favor validating contracts, a court may not create a contract where

none exists.    Id.   However, courts strive to hold contracts enforceable, even amid

allegations of uncertainty. In re C & H News Co., 133 S.W.3d 642, 647 (Tex. App.–Corpus

Christi 2003, orig. proceeding).

       The alleged contract at issue here was sufficiently definite to be enforceable. While

there was no discussion among the brothers how the estate would be split, there was

testimony that it was to be split equally, one-fourth of the estate to each brother. There was

also evidence that the brothers did not immediately contest the will because they trusted

that Rene would keep his promise to them. The jury believed that the agreement had been

made and that Rene had no intention of keeping his promise. There is more than a scintilla


                                              15
of evidence to support the finding. We overrule issue four.

       By issue five, Rene argues that the brothers provided no evidence to support the

award of consequential and emotional distress damages. Consequential damages are

defined as “‘those damages which result naturally, but not necessarily,’ from the defendant's

wrongful acts.” Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636 (Tex. 2007) (quoting

Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 163 (Tex.1992) (Phillips, C.J., concurring)).

Direct damages, on the other hand, compensate for the loss that is the necessary and usual

result of the act. Id. (citing Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812,

816 (Tex.1997)). When special or consequential damages are sought, the plaintiff must

demonstrate that those damages proximately resulted from the fraud alleged. Libhart v.

Copeland, 949 S.W.2d 783, 800 (Tex. App.–Waco 1997, no writ).

       Here, Rene urges that the brothers failed to provide any evidence to substantiate the

jury’s award of $40,000 to each brother in consequential damages. The amount was not

argued by counsel in final argument, nor do we find any evidence to support that amount

or any other amount of consequential damages in the record. The brothers do not argue

or address the issue in their appellees’ brief.

       Rene also urges that the brothers provided no evidence of past “emotional distress”

damages “reasonably expected to be caused by the fraud.” The jury was not given a

definition of the term “emotional distress,” but it awarded $25,000 to each of the three

brothers. We apply a traditional no-evidence standard to a mental anguish finding to

determine whether the record reveals any evidence of a high degree of mental pain and

distress that is more than mere worry, anxiety, vexation, embarrassment or anger. Parkway



                                             16
Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); J.B. Custom Design & Bldg. v. Clawson,

794 S.W.2d 38, 43 (Tex. App.–Houston [1st Dist.] 1990, no writ). An award of mental

anguish will survive a legal sufficiency standard when the plaintiffs have introduced direct

evidence of the nature, severity and duration of their mental anguish. Parkway Co. v.

Woodruff, 901 S.W.2d at 444. Mental anguish damages are generally not recoverable for

breach of contract. Latham v. Castillo, 972 S.W.2d 66, 72 (Tex. 1998); UMLIC VP LLC v.

T&M Sales and Environmental Sys., Inc., 176 S.W.3d 595, 616 (Tex. App.–Corpus Christi

2005, pet. denied). They are recoverable, however, in a limited number of contractual

scenarios that deal with intensely emotional noncommercial subjects, such as preparing a

corpse for burial or delivering news of a family emergency. City of Tyler v. Likes, 962

S.W.2d 489, 496 (Tex. 1997). They are also available in fraud cases. Tony Gullo Motors

I, L.P. v. Chapa, 212 S.W.3d 299, 304 (Tex. 2006).

       This was a fraud case based on an alleged breach of contract. We do not decide

here if this is the type of case where mental anguish damages are recoverable because the

brothers presented no evidence of emotional distress or mental anguish with respect to the

fraud claim. In final argument, the brothers’ counsel urged: “The law—I didn’t put it in,

because I wanted to, but the law says if you’re defrauded, you’re entitled to emotional

damages. I’m not going to put a value on what they had to go through with their dad feeling

the way he did before his death.” The brothers were not entitled to mental anguish

damages with respect to the undue influence claim. The jury was charged that it could

award damages for “emotional distress reasonably expected to be caused by the fraud.”

There was no evidence offered concerning mental anguish as it applied to the fraud claim.



                                            17
The brothers do not provide us any insight in their brief regarding what evidence they

believe constituted mental anguish as a result of the alleged fraud. We sustain issue five.

       By issue six, Rene argues that there is no basis for the jury’s award of exemplary

damages. Rene makes no complaint regarding the amount of damages awarded. The jury

found that Rene defrauded his brothers, and we have upheld that finding. Exemplary

damages are properly awarded only if the claimant proves by clear and convincing evidence

that the harm results from fraud. TEX . CIV. PRAC . & REM . CODE ANN . § 41.003 (Vernon

Supp. 2009). The jury so found. The harm was Rene’s failure to share the estate, as

promised. We will not substitute our judgment for that of the jury who heard the testimony

and weighed the credibility of the witnesses. We overrule issue 6.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment with respect to the undue influence and fraud

claims and affirm the trial court’s award of actual and exemplary damages as a result of the

fraud. We reverse the award of consequential damages and mental anguish damages and

render that appellants take nothing on those elements of damages.




                                                   ROSE VELA
                                                   Justice


Delivered and filed the 24th
day of June, 2010.




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