                    NO. 07-13-00130-CV
                                                                FILED IN
                                                         7th COURT OF APPEALS
                                                           AMARILLO, TEXAS
        IN THE COURT OF APPEALS FOR THE S              EVENTH
                                                         4/8/2015 6:22:13 PM
          DISTRICT OF TEXAS AT AMARILLO, T              EXASVIVIAN LONG
                                                                 CLERK


    JACKSON WALKER, L.L.P., M. KEITH BRANYON, JANE O. LINDSEY,
    INDIVIDUALLY AND AS FORMER TRUSTEE OF THE LESEY B. KINSEL
                   TRUST, AND ROBERT N. OLIVER,
                                         Appellants,
                                 v.
VIRGINIA O. KINSEL, AS EXECUTRIX OF THE ESTATE OF J. FRANK KINSEL,
 J. FRANK KINSEL, JR., CAROLE K. EDWARDS, AND CATHERINE COLLINS,
                                         Appellees.

           On Appeal from the 153rd Judicial District Court of
           Tarrant County, Texas, Cause No. 153-232668-08,
                the Honorable Susan McCoy, Presiding

   JANE O. LINDSEY AND ROBERT N. OLIVER’S REPLY TO
   THE KINSELS’ RESPONSE TO MOTIONS FOR REHEARING



                                       William L. Kirkman
                                       State Bar No. 11518700
                                       Kirkman Law Firm, PLLC
                                       201 Main Street, Suite 1160
                                       Fort Worth, Texas 76102
                                       Telephone: (817) 336-2800
                                       Facsimile: (817) 877-1863

                                       ATTORNEYS FOR APPELLANTS
                                       JANE O. LINDSEY AND
                                       ROBERT N. OLIVER
                                   TABLE OF CONTENTS
                                                                                                         Page

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

I.     Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.    The Kinsels Are Not Entitled to Money Damages from Movants
       for Lack of Capacity or Undue Influence. . . . . . . . . . . . . . . . . . . . . . . 2

       A.      Movants’s Brief Expressly Attacked and Adequately
               Challenged Paragraph 4(f) Contained in the Trial Court’s
               Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

       B.      Money Damages Are Not Recoverable in Texas for
               Undue Influence or Lack of Mental Capacity. . . . . . . . . . . . . . . 4

       C.      The Kinsels Are Not Entitled to Money Damages from
               Movants under the TEXAS DECLARATORY JUDGMENT ACT. . . . 4

       D.      The Kinsels Are Not Entitled to Recover Money Damages
               from Movants for Undue Influence or Lack of Capacity as a
               “Species of Fraud”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

       E.      The Kinsels Are Precluded from Recovering Money Damages
               for Undue Influence and Lack of Capacity Because There Was
               No Jury Finding That the Kinsels Were Damaged by Any
               Undue Influence over Lesey Kinsel or Lesey Kinsel’s Lack
               of Mental Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

III.   Judgment Should Be Rendered that The Kinsels Are Not Entitled
       to Trial or Appellate Attorneys’ Fees. . . . . . . . . . . . . . . . . . . . . . . . . . 6




                                                      ii
       A.     The Kinsels Presented “No Evidence” of Their Trial
              Attorneys’ Fees at Trial, So a Remand of Such Is Not
              Appropriate and Remand of the Kinsels’ Trial Attorneys’
              Fees to Allow Segregation Would Be Futile and Condone
              False Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

       B.     The Court’s Determination That the Kinsels Are Not Entitled
              to Appellate Attorneys’ Fees Was Correct and Remand of
              Such Is Inappropriate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

IV.    The Fourth Amendment to Lesey Kinsel’s Trust Should Not Have
       Been Set Aside And Drs. Cole’s and Clayton’s Testimony Was
       Inadmissible or Did Not Support Such a Determination.. . . . . . . . . . . 8

       A.     Under the Fort Worth Court of Appeals’ Decision in
              Horton v. Horton, There Was No Credible Evidence That
              Lesey Kinsel Had Been Diagnosed with a Condition Affecting
              Her Capacity That Was Persistent and Likely Present on the
              Date She Executed the Fourth Amendment to Her Trust
              on February 23, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

       B.     Dr. Cole Should Not Have Been Allowed to Testify Because
              His Non-Expert Testimony Was Irrelevant and Could Not
              Have Supported a Finding That Lesey Kinsel Lacked Capacity
              at Any Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

       C.     Dr. Clayton Should Not Have Been Allowed to Testify Because
              Her Testimony Could Not Have Supported, Nor Did it Support,
              a Finding That Lesey Kinsel Lacked Capacity to Execute the
              Fourth Amendment on February 23, 2007, or on Any Other
              Critical Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13



                                                   iii
                                 INDEX OF AUTHORITIES
                                                                                                       Page
CASES:

Heat Shrink Innovations, LLC v. Med. Extrusion Technologies-Texas, Inc.,
     No. 02-12-00512-CV, 2014 WL 5307191 (Tex. App.–Fort Worth
     Oct. 16, 2014) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Horton v. Horton,
     965 S.W.2d 78 (Tex. App.–Fort Worth 1998, no pet.). . . . . . . . . . . 8, 9

Metro A, LLC v. Polley,
     No. 02-09-00025-CV, 2011 WL 4413233 (Tex. App.–Fort Worth
     Sept. 22, 2011, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4


RULES AND STATUTES:

TEX. CIV. PRAC. & REM. CODE § 37.004.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. R. APP. P. 38.1(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. R. APP. P. 9.4(i)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

TEX. R. APP. P. 9.4(i)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                     iv
                        NO. 07-13-00130-CV

          IN THE COURT OF APPEALS FOR THE SEVENTH
            DISTRICT OF TEXAS AT AMARILLO, TEXAS


    JACKSON WALKER, L.L.P., M. KEITH BRANYON, JANE O. LINDSEY,
    INDIVIDUALLY AND AS FORMER TRUSTEE OF THE LESEY B. KINSEL
                  TRUST, AND ROBERT N. OLIVER,
                                        Appellants,

                                       v.

VIRGINIA O. KINSEL, AS EXECUTRIX OF THE ESTATE OF J. FRANK KINSEL,
J. FRANK KINSEL, JR., CAROLE K. EDWARDS, AND CATHERINE COLLINS,
                                         Appellees.


             On Appeal from the 153rd Judicial District Court of
             Tarrant County, Texas, Cause No. 153-232668-08,
                  the Honorable Susan McCoy, Presiding


    JANE O. LINDSEY AND ROBERT N. OLIVER’S REPLY TO
    THE KINSELS’ RESPONSE TO MOTIONS FOR REHEARING


TO THE HONORABLE COURT OF APPEALS:

      NOW COME Jane O. Lindsey, Individually, and as the Former Trustee

of the Lesey B. Kinsel Trust, and Robert N. Oliver, two of the Appellants in the

captioned matter (collectively “Movants”), and in support of their Motion for

                                       1
Rehearing (“MRH”), file this Reply to the Kinsels’ Response to the Motions for

Rehearing, and would respectfully show the Court as follows:

                                       I.

                                INTRODUCTION

      The Kinsels have filed a single Response to the Appellants’ Motions for

Rehearing in which they inappropriately raise new arguments, discuss

previously unmentioned case law, and fail to adequately address the arguments

made by Movants in their MRH. This Reply addresses the points raised in the

Kinsels’ Response applicable to Movants.

                                       II.

      THE KINSELS ARE NOT ENTITLED TO MONEY DAMAGES FROM
       MOVANTS FOR LACK OF CAPACITY OR UNDUE INFLUENCE

      Paragraph 4(f) of the trial court’s judgment awarded the Kinsels the same

damages for “undue influence or the lack of capacity of Lesey B. Kinsel” that

the jury awarded the Kinsels for fraud and tortious interference with inheritance

rights. The Kinsels argue in their Response to the Appellants’ Motions for

Rehearing that the Court affirmed that portion of the trial court’s judgment. The

Kinsels’ argument and paragraph 4(f) of the trial court’s judgment are incorrect

for the four separate reasons set out below.


                                       2
A.    Movants’s Brief Expressly Attacked and Adequately Challenged
      Paragraph 4(f) Contained in the Trial Court’s Judgment

      In their Response, the Kinsels state that the “Court correctly concluded [in

footnote 6 of its Opinion] that Defendants did not adequately challenge the

damages awarded under paragraph 4(f) and thus waived the point.” Kinsel Resp.

1 (emphasis added). That statement is simply incorrect. The Court did not state

or imply that any of the Appellants’ challenges in their Briefs to paragraph 4(f)

were inadequate. What the Court said in footnote 6 was that none of the

Appellants “expressly attacked” paragraph 4(f) of the judgment. Memo Op.

43–44, n.6. Movants believe this statement of the Court to be incorrect. See

Movants’ MRH 2–3. Movants presented a clear and concise argument in their

Brief that money damages are not recoverable for undue influence under Texas

law, with citations to applicable case law and to the record. Movants’ Br. 45–46.

Movants also cited two critical Texas cases in their Brief which were directly on

point and which supported that proposition—one from the Texas Supreme Court

and one from this Court—awarding rescission rather than money damages for

undue influence. Id. Movants therefore satisfied TEX. R. APP. P. 38.1(i) (a brief

“must contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record” (emphasis added)). And,


                                        3
the Kinsels’ reliance on Metro A, LLC v. Polley and the other cases they cite are

inappposite. See Jackson Walker Parties’ (“JW’s”) Reply to the Kinsels’ MRH

at p. 4, n.4.

B.    Money Damages Are Not Recoverable in Texas for Undue Influence
      or Lack of Mental Capacity

      Undue influence and lack of mental capacity are not actionable torts in

Texas. Consequently, there is no right to damages based on such claims.

Movants’ Br. 45–46 and the cases cited in JW’s Reply to the Kinsels’ MRH at

p. 5. Further, the five cases the Kinsels cite in their Response, which they say

support their argument, do not; they support Appellants’ position that money

damages are not recoverable in this instance. JW’s Reply to the Kinsels’ MRH

at pp. 6–7.

C.    The Kinsels Are Not Entitled to Money Damages from Movants
      under the TEXAS DECLARATORY JUDGMENT ACT

      The Kinsels’ last-minute attempt to claim they are entitled to damages

under § 37.004 of the TEXAS DECLARATORY JUDGMENTS ACT is specious. The

TEXAS DECLARATORY JUDGMENTS ACT does not allow for a recovery of

monetary damages. Movants adopt the argument of the Jackson Walker Parties

on this point in their Reply to the Kinsels’ Response at V A on pp. 9–10.



                                       4
D.    The Kinsels Are Not Entitled to Recover Money Damages from
      Movants for Undue Influence or Lack of Capacity as a “Species of
      Fraud”

      The Kinsels contend in their Response that damages are recoverable for

undue influence because it is a “species of legal fraud.” Kinsel Resp. at 5. This

position is without merit. For the same reasons the Kinsels’ damage claim for

fraud fails (Memo. Op. 11–15), the Kinsels’ attempts to seek such damages for

undue influence and lack of capacity fail. Movants also adopt the argument of

the Jackson Walker Parties in their Reply to the Kinsels’ Response at p. 8 as to

this point.

E.    The Kinsels Are Precluded from Recovering Money Damages for
      Undue Influence and Lack of Capacity Because There Was No Jury
      Finding That the Kinsels Were Damaged by Any Undue Influence
      over Lesey Kinsel or Lesey Kinsel’s Lack of Mental Capacity

      Finally, the Kinsels did not request a damages question for undue

influence or lack of capacity. [CR 4985-92]. Thus, even if the Kinsels could

somehow recover such damages, the absence of a specific damages finding for

undue influence or lack of capacity is fatal to the Kinsels’ claim and paragraph

4(f) should be set aside for that reason. Heat Shrink Innovations, LLC v. Med.

Extrusion Technologies-Texas, Inc., No. 02-12-00512-CV, 2014 WL 5307191,

at *12 (Tex. App.–Fort Worth Oct. 16, 2014) (mem. op.) (“Without a finding on


                                       5
the amount of damages…, METT failed to prove an essential element of its

cause of action.”).

                                       III.

        JUDGMENT SHOULD BE RENDERED THAT THE KINSELS ARE
        NOT ENTITLED TO TRIAL OR APPELLATE ATTORNEYS’ FEES

A.    The Kinsels Presented “No Evidence” of Their Trial Attorneys’ Fees
      at Trial, So a Remand of Such Is Not Appropriate and Remand of the
      Kinsels’ Trial Attorneys’ Fees to Allow Segregation Would Be Futile
      and Condone False Testimony

      The Kinsels’ Response to the Movants’ Motion for Rehearing as to the

Kinsels’ trial attorneys’ fees misses the point made by Movants in their Motion

for Rehearing. There are two separate and distinct reasons why the Court

erroneously remanded the Kinsels’ claim for trial attorneys’ fees for a new trial.

      One, under the recent Supreme Court decisions cited on pp. 16–18 of

Movants’ Motion for Rehearing, the Kinsels’ testimony as to their trial

attorneys’ fees constituted “no evidence” of such. The Kinsels fail to address in

their Response, the resulting legal proposition Movants cite in their Motion.

When the party with the burden of proof on an issue (the Kinsels in this case)

presents “no evidence” to satisfy that burden, an appellate court does not

ordinarily remand the matter to the trial court for a second chance. Movants’

MRH 20.

                                        6
      Two, the Kinsels’ Response ignores the effect of their attorneys’ sworn

testimony at trial. The attorneys testified unequivocally that it was “impossible”

to segregate their trial attorneys’ fees. Movants’ MRH 19–20. The effect of a

remand to allow the Kinsels’ attorneys to segregate their trial attorneys’ fees is

to condone the future untruthful testimony by the Kinsels’ lawyers on remand.

B.    The Court’s Determination That the Kinsels Are Not Entitled to
      Appellate Attorneys’ Fees Was Correct and Remand of Such Is
      Inappropriate

      The Kinsels argue in their Response that footnote 5 was not an error, but

fail to explain why the Court, in the section following the footnote, denied the

Kinsels’ claim for appellate attorneys’ fees. Further, the Kinsels’ footnote 15 on

p. 14 of their Response supports the Movants’ position that attorneys’ fees are

discretionary under the DECLARATORY JUDGMENT ACT and that the interests of

justice do not warrant a second bite at the apple when there is no legal

entitlement to that second bite. Movants’ Resp. 17–18.




                                        7
                                     IV.

          THE FOURTH AMENDMENT TO LESEY KINSEL’S TRUST
          SHOULD NOT HAVE BEEN SET ASIDE AND DRS. COLE’S
            AND CLAYTON’S TESTIMONY WAS INADMISSIBLE
             OR DID NOT SUPPORT SUCH A DETERMINATION

A.    Under the Fort Worth Court of Appeals’ Decision in Horton v.
      Horton, There Was No Credible Evidence That Lesey Kinsel Had
      Been Diagnosed with a Condition Affecting Her Capacity That Was
      Persistent and Likely Present on the Date She Executed the Fourth
      Amendment to Her Trust on February 23, 2007

      That portion of the trial court’s judgment found at paragraphs 3(a) and

4(e) relative to the Fourth Amendment must be reversed and rendered. It is

undisputed that there was no evidence that Lesey Kinsel had “bouts of confusion

or dementia” on the day she executed the Fourth Amendment to her

Trust—February 23, 2007. Any argument by the Kinsels to the contrary or the

adoption by the Court of any such argument to the contrary is simply wrong. In

fact, the only evidence on that point was uncontroverted. Lesey Kinsel did not

possess any such conditions on that date, but was fully aware of what she was

doing. Movants’ Brief 10–15. Beyond that reality, however, the Kinsels fail to

address in their Response, the key passage from the Fort Worth Court of

Appeals’ Opinion in Horton v. Horton, 965 S.W.2d 78, 86 (Tex. App.–Fort

Worth 1998, no pet.), upon which Movants relied in their Motion for Rehearing.


                                      8
The Fort Worth Court states in Horton v. Horton that evidence of the testator’s

state of mind on a date other than the date the instrument was executed may be

considered in determining capacity “only if it demonstrates that a condition

affecting the individual’s testamentary capacity was persistent and likely present

at the time the will was executed.” Id. at 85. There is not one shred of evidence

in the record, and certainly none cited by the Kinsels in their Response or in any

of their Briefs, that Lesey Kinsel had been diagnosed with dementia or any other

mental infirmity or condition that was “persistent and likely present” on the date

the Fourth Amendment was executed. In fact, there was no diagnosis contained

in any medical record that Lesey Kinsel suffered from dementia at any time. The

Kinsels’ citation to testimony from Dr. Clayton on pp. 16–17 of their Brief does

not change that factual reality, whether Dr. Clayton found 500 or a thousand

items to tag in Lesey’s medical records.

B.    Dr. Cole Should Not Have Been Allowed to Testify Because His Non-
      Expert Testimony Was Irrelevant and Could Not Have Supported a
      Finding That Lesey Kinsel Lacked Capacity at Any Time

      Allowing Dr. Cole to testify was a grievous error the trial court made and

Movants adequately demonstrated its devastating effect on them in their Briefs.

He was not properly designated as an expert. His medical records on Lesey

Kinsel do not mention that she had dementia or lacked mental capacity in any

                                        9
manner at any time. Dr. Cole did not even see Lesey Kinsel until well after

February 23, 2007—the date the Fourth Amendment was executed. The Kinsels

offer no evidence in their Response to rebut those uncontroverted facts. Given

this factual certainty, the adverse effect of allowing Dr. Cole to testify could not

be any more obvious than when the Kinsels’ counsel improperly questioned Dr.

Cole about his “opinion” of Lesey’s “dementia.” Then, when that attorney

argued to the jury that Dr. Cole had testified that Lesey had dementia when Dr.

Cole did not so testify, the harm to Movants of allowing Dr. Cole to testify

became irretrievable.

C.    Dr. Clayton Should Not Have Been Allowed to Testify Because Her
      Testimony Could Not Have Supported, Nor Did it Support, a Finding
      That Lesey Kinsel Lacked Capacity to Execute the Fourth
      Amendment on February 23, 2007, or on Any Other Critical Date

      The only function Dr. Clayton performed was to review Lesey’s medical

records long after Lesey had died. She did not treat Lesey Kinsel. The medical

records Dr. Clayton reviewed contained no diagnosis whatsoever that Lesey had

dementia or any medical condition or infirmity affecting her capacity “that was

persistent and likely present” on February 23, 2007, or any other of the crucial

dates. Accordingly, allowing Dr. Clayton to testify as to Lesey Kinsel’s capacity

sank Movants’ hope that the jury would render a decision based on the evidence.


                                        10
This point is particularly brought home given this Court’s statement in its

Opinion that expert testimony was not needed to assist the jury in their

determination of whether Lesey was incapacitated at any point in time. Memo

Op. 19.

      WHEREFORE, PREMISES CONSIDERED, Lindsey and Oliver

respectfully pray that the Court deny the Kinsels’ Motion for Rehearing, grant

their own Motion for Rehearing, and render judgment accordingly.

                                    Respectfully submitted,

                                    KIRKMAN LAW FIRM, P.L.L.C.

                                    By:/s/William L. Kirkman
                                          WILLIAM L. KIRKMAN
                                          State Bar No. 11518700
                                          billk@kirkmanlawfirm.com
                                          201 Main Street, Suite 1160
                                          Fort Worth, Texas 76102
                                          Telephone: (817) 336-2800
                                          Facsimile: (817) 877-1863

                                    ATTORNEYS FOR APPELLANTS,
                                    JANE O. LINDSEY AND
                                    ROBERT N. OLIVER




                                     11
                   CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4(i)(3), I hereby certify that this Jane O.

Lindsey and Robert N. Oliver’s Reply to the Kinsels’ Response to Motions for

Rehearing contains 2,069 words, excluding the parts of the Reply exempted by

TEX. R. APP. P. 9.4(i)(1). This is a computer-generated document created in

Corel WordPerfect X5 using a 15-point proportional typeface for text and a 13-

point typeface for footnotes. In making this Certificate of Compliance, I am

relying on the word count provided by the software used to prepare the

document.



                                           /s/William L. Kirkman
                                           William L. Kirkman




                                      12
                      CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that, pursuant to the TEXAS RULES OF APPELLATE

PROCEDURE, on April 8, 2015, a true and correct copy of the foregoing was

electronically served concurrent with its electronic filing upon the following:

Mr. Craig T. Enoch                         Messrs. John H. Cayce, Jr.,
cenoch@enochkever.com                       Frank P. Greenhaw, IV,
Ms. Amy L. Saberian                         and Joe Greenhill
asaberian@enochkever.com                   john.cayce@kellyhart.com
Enoch Kever P.L.L.C.                       pete.greenhaw@kellyhart.com
600 Congress Avenue, Suite 2800            joe.greenhill@kellyhart.com
Austin, Texas 78701                        Kelly Hart & Hallman LLP
Attorneys for Plaintiffs on Appeal         201 Main Street, Suite 2500
                                           Fort Worth, Texas 76102
Messrs. J. Lyndell Kirkley and             Attorneys for Jackson Walker, L.L.P.
 and Sean R. Looney                        and M. Keith Branyon
kirkley@kbblawyers.com
slooney@kbblawyers.com                     Ms. Alison H. Moore
Kirkley & Berryman, L.L.P.                 Amoore@thompsoncoe.com
100 N. Forest Park Blvd., Suite 220        Thompson, Coe, Cousins
Fort Worth, Texas 76102                     & Irons, L.L.P.
Attorneys for Virginia O. Kinsel,          700 North Pearl Street
J. Frank Kinsel, Jr., Carole K.            25th Floor – Plaza of the Americas
Edwards, and Catherine Collins             Dallas, Texas 75201
                                           Attorney for Terry S. Whiddon
Mr. Lindy Jones
ljones@jonesallen.com                      Mr. Scott C. Kinsel
Jones, Allen & Fuquay, L.L.P.              skinsel@mac.com
8828 Greenville Avenue                     Scott C. Kinsel, P.C.
Dallas, Texas 76243-7143                   8708 South Congress, Suite B200
Attorney for J. Frank Kinsel, Jr.          Austin, Texas 78745
                                           Attorney for Joe Bob Kinsel, Jr.



                                      13
Ms. Ida Castillo, Pro Se         Ms. Frances Garza, Pro Se
5437 FM 541                      5435 FM 541
McCoy, Texas 78113               McCoy, Texas 78113
VIA FIRST-CLASS MAIL ONLY        VIA FIRST-CLASS MAIL ONLY


                                 /s/William L. Kirkman
                                 William L. Kirkman
                                 billk@kirkmanlawfirm.com
                                 (817) 877-1863 (Facsimile)




                            14
