                                 Fourth Court of Appeals
                                        San Antonio, Texas
                                    MEMORANDUM OPINION

                                           No. 04-18-00714-CV

                             IN THE ESTATE OF Joanne Cooksey FRIEND

                              From the County Court, Uvalde County, Texas
                                         Trial Court No. 6904-16
                             Honorable Polly Jackson Spencer, Judge Presiding 1

Opinion by:         Luz Elena D. Chapa, Justice

Sitting:            Sandee Bryan Marion, Chief Justice
                    Rebeca C. Martinez, Justice
                    Luz Elena D. Chapa, Justice

Delivered and Filed: February 19, 2020

AFFIRMED

           Suzanne Friend Johnston appeals a judgment that sets aside three gift deeds and a will her

mother executed based on jury findings of undue influence. We hold sufficient evidence supports

the jury’s findings, and Suzanne’s motion for new trial requires improperly delving into the jury’s

deliberations. We therefore affirm the trial court’s judgment.

                                              BACKGROUND

           Joanne Cooksey Friend was married to Don Friend for over fifty years. Joanne owned the

Cooksey Ranch, which consisted of approximately 1,000 acres in Uvalde County. For some time,

the Friend family—including Joanne, Don, their daughters Sarah and Suzanne, and Sarah’s

children—was close. Joanne and Don frequently discussed with the family how, after they died,


1
    Sitting by assignment.
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the ranch would be divided equally between Sarah and Suzanne. Based on this understanding,

Sarah (together with Joanne, Don, and her husband at the time) purchased a parcel of land that

would provide access to the acreage Sarah was to receive.

        Suzanne and her husband Joel returned from living abroad for several years, but Sarah and

Suzanne’s relationship was not as close as before. Their relationship further deteriorated after their

father Don died in an accident on the ranch in October 2010. After Don’s death, Sarah’s

relationship with her mother, Joanne, also deteriorated. In December 2010, Joanne signed a gift

deed conveying 478 acres of the ranch to Suzanne. 2

        In 2011, Joanne accused Sarah of stealing from her safe at the ranch, and “running all over

town, spreading stories about her being crazy and incompetent.” In January 2012, Joanne accused

Sarah’s sons of planning to put her into a nursing home. In a handwritten note, Joanne stated she

had concerns about Sarah and her sons and intended to execute a new will to protect the ranch.

        On January 17, 2012, Joanne signed a gift deed conveying another 478 acres of the ranch

to Suzanne. On February 16, 2012, Joanne signed a will leaving her entire estate to Suzanne. On

November 27, 2012, Joanne signed two more gift deeds conveying approximately 20 acres to

Suzanne. In the November 27, 2012 gift deeds, Joanne also conveyed her house, a guesthouse, and

a barn to Suzanne, but reserved a life estate in her residence. Included within these transfers was

the acreage Sarah originally was to receive and for which Sarah had purchased adjacent property.

Suzanne, exercising power of attorney on behalf of Joanne, also conveyed Joanne’s car to her

husband, Joel.

        In 2016, Joanne died, and Suzanne applied to probate the will. In her will, Joanne recited

she had two daughters, but made no provision for Sarah. Sarah argued the will was executed as a


2
 Although Sarah claimed this deed was signed as a result of undue influence, the jury found otherwise, and Sarah
does not challenge this finding.


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result of undue influence and Joanne lacked testamentary capacity. Sarah challenged the four gift

deeds on the same grounds.

        At the end of trial, the jury found Joanne executed the February 16, 2012 will, the January

17, 2012 gift deed, and the two November 27, 2012 gift deeds as a result of undue influence. The

jury found the December 20, 2010 gift deed was not signed as a result of undue influence. The

issue of Joanne’s testamentary capacity was not submitted to the jury.

        The trial court rendered judgment on the jury’s findings, setting aside the will and three

gift deeds. Suzanne filed a motion for new trial, arguing the jury’s findings were not supported by

legally and factually sufficient evidence. In the motion, Suzanne also argued a juror made

inaccurate statements during deliberations. The motion was overruled by operation of law, and

Suzanne timely appealed.

                  INACCURATE JUROR STATEMENTS DURING DELIBERATIONS

        Suzanne argues she was entitled to a new trial based on a juror “provid[ing] incorrect expert

opinions” to other jurors during deliberations about Joanne’s medical records. We review a denial

of a motion for new trial for an abuse of discretion. Vela v. Wagner & Brown, Ltd., 203 S.W.3d

37, 47–48 (Tex. App.—San Antonio 2006, no pet.). “A juror may testify about jury misconduct

provided it does not require delving into deliberations.” Golden Eagle Archery, Inc. v. Jackson, 24

S.W.3d 362, 370 (Tex. 2000). Suzanne’s argument is based on one juror’s affidavit about another

juror’s comments during deliberations. Suzanne’s claim of juror misconduct requires delving into

deliberations, and does not relate to outside influences on those deliberations. See id. We overrule

this issue.

                                        UNDUE INFLUENCE

        Suzanne argues the jury’s findings of undue influence are not supported by legally and

factually sufficient evidence. We will sustain a legal sufficiency challenge if: (1) there is a


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complete absence of evidence at trial of a vital fact; (2) the court is barred by rules of law or

evidence from giving weight to the only evidence offered at trial to prove a vital fact; (3) the

evidence offered at trial to prove a vital fact is no more than a scintilla; or (4) the evidence at trial

established conclusively the opposite of the vital fact. Santos v. Comm’n for Lawyer Discipline,

547 S.W.3d 640, 645 (Tex. App.—San Antonio 2017, pet. denied) (citing City of Keller v. Wilson,

168 S.W.3d 802, 811 (Tex. 2005)). “In conducting a legal sufficiency review, we must consider

the evidence in the light most favorable to the appealed finding and indulge every reasonable

inference that supports it.” Id. “In reviewing a question of factual sufficiency, we consider and

weigh all of the evidence presented at trial in a neutral light, setting aside the verdict only if it is

so against the great weight and preponderance of the evidence as to be manifestly unjust.” Tex.

Outfitters Ltd., LLC v. Nicholson, 534 S.W.3d 65, 73 (Tex. App.—San Antonio 2017), aff’d, 572

S.W.3d 647 (Tex. 2019).

A. Applicable Law

        “To prevail on an undue influence claim, the contestant 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 testator at the time of the execution of the testament; and (3) the execution of a

testament which the maker thereof would not have executed but for such influence.” In re Estate

of Johnson, 340 S.W.3d 769, 776 (Tex. App.—San Antonio 2011, pet. denied) (citing Rothermel

v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963)). The same elements are required to prevail on an

undue influence claim to set aside a deed. Fillion v. Troy, 656 S.W.2d 912, 915 (Tex. App.—

Houston [1st Dist.] 1983, writ ref’d n.r.e.). Not “every influence exerted by a person on the will of

another is undue,” but undue influence includes “deception used in an effort to overcome or subvert

the will of the maker of the testament and induce the execution thereof contrary to his will.”

Rothermel, 369 S.W.2d at 922.


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       Undue influence may be proven by circumstantial evidence. Id. These circumstances must

be directed “to the state of the testator’s mind at the time of the execution of the testament.” Id. at

923. Relevant circumstances include the existence of opportunities to deceive and exert influence;

the circumstances surrounding the drafting and execution of the instrument; whether the testator

has been habitually subject to the control of another; the susceptibility of the testator’s mind or the

testator’s mental or physical incapacity to resist the type and extent of the influence exerted; the

existence of a fraudulent motive; and whether the testament executed is unnatural in its terms of

disposition of property. Id.

C. Analysis

       We measure the sufficiency of the evidence against the jury charge as it was submitted.

See Romero v. KPH Consol., Inc., 166 S.W.3d 212, 221 (Tex. 2005). For each instrument discussed

above, the jury charge defined undue influence as requiring “1. an influence existed and was

exerted, and 2. the influence undermined or overpowered the mind of the decedent at the time she

signed the Deed [or Will], and 3. the decedent would not have signed the Deed [or Will] but for

the influence.” No objections were made to this definition.

       1. Existence & Exertion of an Influence

       Sarah testified that, according to Joanne, Suzanne claimed Sarah was the one who broke

into and stole from Joanne’s safe. Sarah testified this was a lie because she did not have the safe

combination, but Suzanne did. Sarah also testified that, again according to Joanne, Suzanne told

her Sarah was “running all over town, spreading stories about her being crazy and incompetent.”

Sarah testified this, too, was false. A family friend, Cheryl McMullen, testified about a

conversation she had with Suzanne and Joanne. McMullen testified Suzanne said during the

conversation that “Sarah lied or stole or cheated” and was a “bad mother.” McMullen stated

Suzanne’s comments influenced Joanne. Suzanne was also living on the ranch with Joanne, and


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Sarah testified Suzanne made efforts to isolate Joanne. This evidence would enable a reasonable

factfinder to conclude an influence existed and that Suzanne exerted an influence on Joanne. See

In re Estate of Rodriguez, No. 13-16-00091-CV, 2017 WL 1228905, at *4 (Tex. App.—Corpus

Christi Mar. 2, 2017, no pet.) (mem. op.).

       2. Undermining/Overpowering the Mind of the Decedent

       Sarah and her son, Chance, testified that before Don died, Joanne started exhibiting signs

that her mental state was deteriorating. Sarah stated Joanne found Don’s body on the ranch where

he died in an accident involving an off-road vehicle, she sat with his body for hours, she went into

a state of shock, and she never fully recovered. The trial court admitted Joanne’s medical records

and her death certificate. This evidence shows Joanne had a stroke, was diagnosed with and died

from dementia or Alzheimer’s disease, as well as heart failure. Sarah also testified that before Don

died, Joanne went to a Dementia Clinic with Don, and a medical record notes Joanne “presented

with dementia . . . . Recent functioning has been marked by rapid deterioration. She is unable to

recall the date, and Ms. Friend demonstrates anxious . . . agitated, aggressive, and paranoid

behavior.”

       Sarah also testified that after Don died, Suzanne made all of Joanne’s decisions for her and

isolated Joanne by interfering with Sarah’s ability to interact with her. Sarah explained Joanne

used to return her phone calls and that she always had access to the ranch and a key to Joanne’s

house, but Suzanne changed the locks to the house, installed a gate requiring a code Sarah did not

have, and took control over Joanne’s voicemail and phone messages, and Joanne no longer

returned Sarah’s calls. Sarah further testified Suzanne forced Joanne to leave her house and live in

the guesthouse, while Suzanne and Joel lived in Joanne’s house. The evidence also shows Joanne

conveyed virtually all of her real property to Suzanne, and Suzanne, using power of attorney, gave

Joanne’s car to her husband Joel. Sarah additionally testified Joanne gave a typewritten letter to


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her lawyer about changing her will, listing numerous reasons for disinheriting Sarah. Sarah

testified Suzanne must have written the letter because Joanne never used a typewriter or computer.

Additionally, Chance testified that, before Don died, Don had warned him about Suzanne trying

take more than half of the estate after he and Joanne died. The evidence would enable a reasonable

factfinder to conclude Suzanne’s influence at least undermined, if not overpowered, Joanne’s mind

at the time she signed her will and the gift deeds in 2012. See, e.g., Adamson v. Burgle, 186 S.W.2d

388, 394–95 (Tex. Civ. App.—San Antonio 1945, writ ref’d w.o.m.) (holding evidence that

testatrix was suffering from dementia was relevant to undue influence finding).

       3. No Execution “But For” the Influence

       It was undisputed that before Don died, Don and Joanne planned to divide the ranch equally

between Sarah and Suzanne. Sarah testified Joanne changed her mind because of lies Suzanne had

told Joanne about stealing from the safe and telling others she was “crazy and incompetent.”

Suzanne also testified these incidents were reasons Joanne would have disinherited Sarah. The

evidence would enable a reasonable factfinder to conclude that but for Suzanne’s influence, Joanne

would not have executed her will disinheriting Sarah and the gift deeds transferring virtually all of

the ranch to Suzanne. See, e.g., Johnson, 340 S.W.3d at 783–84.

       4. Conclusion

       We hold there is legally sufficient evidence to support the jury’s findings of undue

influence. Although Suzanne does not separately brief her factual sufficiency challenge, we note

the evidence relevant to undue influence was heavily disputed. Both Sarah and Suzanne accused

each other of lying, being greedy, attempting to take advantage of their mother, and other

misconduct. The jury believed Sarah. Suzanne provided other reasons why Joanne would have

disinherited Sarah, but “evidence of a reasonable explanation for an unnatural disposition does not

prevent a jury from finding undue influence. Instead, where such evidence is proffered, the jury


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must determine which explanation should be given more weight and which explanation is more

credible.” See id.

       Suzanne contradicted Sarah’s testimony primarily through her own testimony. However,

during trial, Suzanne’s credibility as a witness was undermined in significant ways, such as her

repeated denials of Joanne’s documented mental health issues, and her inability to explain a

typewritten letter supposedly written by Joanne when Joanne had never used a typewriter or

computer. We cannot say the jury’s findings of undue influence were against the great weight and

preponderance of the evidence so as to be manifestly unjust. We hold legally and factually

sufficient evidence supports the jury’s findings of undue influence.

                                          CONCLUSION

       We affirm the trial court’s judgment.

                                                 Luz Elena D. Chapa, Justice




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