                                                                                                            ACCEPTED
                                                                                                        03-13-00025-CV
                                                                                                                7797517
                                                                                             THIRD COURT OF APPEALS
                                                                                                        AUSTIN, TEXAS
                                                                                                 11/12/2015 12:00:46 PM
                                                                                                      JEFFREY D. KYLE
                                     DARYL L. MOORE‡                                                             CLERK
                                   DARYL L. MOORE, P.C.
                                     1005 Heights Boulevard
                                      Houston, Texas 77008                        RECEIVED IN
                                      713.529.0048 Telephone                 3rd COURT OF APPEALS
                                      713.529.2498 Facsimile                     AUSTIN, TEXAS
                                                                            11/12/2015 12:00:46 PM
                                      November 12, 2015                        JEFFREY D. KYLE
                                                                                     Clerk

Jeffrey D. Kyle, Clerk
Third Court of Appeals
209 West 14th Street, Room 101
Austin, Texas 78701

       RE: No. 03-13-00025-CV; Jerry Scarbrough, et al. v. Helen Purser, et
           al.; In the Third Court of Appeals, Austin, Texas.

Dear Mr. Kyle:

       This case was argued on October 22, 2015, before Chief Justice Rose and
Justices Field and Bourland. This post-submission letter brief addresses questions the
justices asked of both parties’ counsel during argument. Thus, please distribute this
letter brief to the panel for the justices’ consideration.

1.     Mental-anguish damages.

       Chief Justice Rose asked appellees’ counsel, Mr. Moore, whether the damages
for mental anguish were segregated from the damages for the death of Mr. Purser.
In response, Mr. Moore: (1) referred the Court to Elizabeth Tipton’s testimony, which
distinguished the family’s mental anguish that followed the death of Mr. Purser from
the mental anguish that resulted from appellants’ conduct; (2) explained that no Texas
Court has required segregation in circumstances like these and that a plaintiff bears
no burden of segregating damages; and (3) referred the Court to the jury instructions
that accompanied the damage questions — which limited the jury’s consideration to
damages caused only by appellants’ tortious conduct1 — and stated that the law
presumes the jury followed those instructions in awarding mental-anguish damages.

       1
               “What sum of money, if paid now in cash, would fairly and reasonably compensate
any of the named persons for their injuries, if any, that were proximately caused by the [defamatory]
statement(s)?” CR9814 (emphasis added); “What sum of money, if paid now in cash, would fairly
and reasonably compensate Helen Purser for her damages, if any, that resulted from such fraud?”
CR98181 (emphasis added).
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BOARD CERTIFIED, CIVIL APPELLATE LAW, TEXAS BOARD OF LEGAL SPECIALIZATION
Appellees Post-Submission Letter Brief
Page 2 of 6

See Turner, Collie & Braden, Inc. v. Brookhollow, 642 S.W.2d 160, 167 (Tex.1982)
(presumption jury follows court’s instructions).

      Moreover, appellants waived any complaint about whether the jury may have
included damages for Mr. Purser’s death in the mental-anguish award. Had
appellants wanted the jury to segregate damages, or not to award any amount for Mr.
Purser’s death, appellants were required either to: (1) request a limiting instruction
to accompany the damage question; or (2) at least object to the form of the damages
question. Cf. Thomas v. Callaway, 251 S.W.2d 921, 926 (Tex.Civ.App.)San Antonio
1952, writ ref’d n.r.e.) (defendant has “duty to request proper issues and instructions”
concerning mitigation of damages); Burbage v. Burbage, 447 S.W.3d 255-56
(Tex.2014) (a Casteel-type objection is required to complain about a broad-form
damages submission mixing valid and invalid elements of damages) (referring to
Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex.2000)).

       Put simply, if appellants wanted to further instruct the jury to consider only
those mental-anguish damages that resulted from appellants’ tortious conduct and not
to include any amount for those resulting from Mr. Purser’s death, appellants should
have objected to the charge and requested an additional instruction. See, e.g., Latham
v. Castillo, 972 S.W.2d 66, 70 (Tex.1998) (discussing trial court’s ability to further
instruct jury to differentiate between mental-anguish damages that are recoverable
from those that are not).

     Appellants did neither. The Court should affirm the award of mental-anguish
damages.

2.     Deaton’s and Steele’s publication of defamatory statements.

      Justice Bourland asked Mr. Moore whether Deaton’s and Steele’s defamatory
statements were published. Mr. Moore pointed to the evidence establishing that the
women’s defamatory statements, including their spurious accusation that the Pursers
intended to institutionalize Mr. Purser, were published to Mr. Purser. That evidence
of publication is undisputed as it included in the women’s secret recording of their
conversation with Mr. Purser. Under the charge given, publication to Mr. Purser,
alone, is sufficient to support the jury’s finding that Deaton and Steele published
defamatory statements. See CR9813 (instruction in charge that the communication
must have been to a person other than Helen, Sue, “Bubba,” JoAnn, or Elizabeth).
Appellees Post-Submission Letter Brief
Page 3 of 6

3.     Scarbrough’s proffered qualified-immunity instruction was improper; the trial
       court’s refusal to submit it was neither error nor harmful.

       In his Second Issue on appeal, Scarbrough complained that the trial court erred
in denying his tendered instruction that “[a]ttorneys have qualified immunity from a
suit arising from their discretionary duties in and out of the courtroom in good faith
withing the scope of their legal representation of respected [sic] clients.”

       Justice Bourland asked Scarbrough’s counsel, Ms. Chimene, whether the
proffered instruction was consistent with Cantey Hanger2, which allows qualified
immunity from liability but not immunity from suit. Chief Justice Rose inquired of
Ms. Chimene whether the form of Scarbrough’s proffered instruction bears on the
issue of the trial court’s discretion in refusing the instruction.

        The Court in Cantey Hanger recited the rule that attorneys may be immune
from civil liability to non-clients for actions taken in connection with representing a
client in litigation. 467 S.W.3d at 481. Scarbrough’s requested instruction proposed
that he was immune from suit — not liability — and was therefore not a correct
statement of law under Cantey Hanger. Thus, the trial court did not abuse its
discretion in refusing Scarbrough’s proposed misstatement of the law. See Spurck v.
Texas Dep’t of Family & Protective Servs., 396 S.W.3d 205, 220 (Tex.App.)Austin
2013, no pet.) (holding that because proposed jury instruction misstated the law, the
trial court did not abuse its discretion in refusing to submit it to the jury).

       Additionally, as Mr. Moore stated during argument, under this Court’s holding
in McGregor v. Vela,3 the jury’s malice finding renders Scarbrough’s charge-error
complaint harmless. Or, as this Court stated: “[t]he evidentiary support for the
finding of actual malice renders harmless any error in the court’s refusal to submit an
instruction and charge on qualified privilege.” 2002 WL 220072 at *5.

4.     Scarbrough is not entitled to immunity for his defamatory statements and he
       admitted as much under cross-examination.

      During appellants’ rebuttal, Justice Bourland asked Ms. Chimene if an
attorney-client relationship was required for immunity to apply. That question

       2
           Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex.2015).
       3
         No. 03-01-00299-CV, 2002 WL 220072 (Tex.App.–Austin 2002, no pet.) (Not designated
for publication).
Appellees Post-Submission Letter Brief
Page 4 of 6

acknowledges that an attorney without a client cannot behave as Scarbrough behaved
here and then claim immunity for his conduct.

       It is undisputed that Scarbrough was not acting as an attorney for himself, for
Deaton, or for Steele when he called Mr. Purser’s niece, Carolyn Purser Bolling;
falsely told her he represented Mr. Purser; disclosed Mr. Purser’s medical records in
violation of the trial court’s Confidentiality Order; and, told Ms. Bolling that Mr.
Purser had been harmed, abused, and ultimately killed by his wife and children.
RR7:46-47, 51 (referring to Scarbrough’s recorded conversation with Ms. Bolling);
PX233 (the recorded conversation).

       When Scarbrough made those false and defamatory statements to Ms. Bolling
in November 2011, he no longer represented Steele,CR1886; he had withdrawn from
representing Deaton, CR3297; and, Steven Barkley had entered an appearance on
behalf of Scarbrough. CR3497. Thus, when Scarbrough defamed appellees, he was
not acting as an attorney on behalf of a client, but only on his own, personal behalf.

       Finally, the Court need look no further than Scarbrough’s own testimony to
reject his immunity defense. 3dSuppRR:JS48 (acknowledging that a licensed
attorney cannot make statements in a court of law that are false, and that the attorney
does not believe to be true when he makes them).

      Scarbrough has no immunity for his false accusations of murder and abuse
against the Purser family.

5.     Schlueter does not preclude a cause of action against a third party for fraud on
       the community.

       Chief Justice Rose inquired of Mr. Moore whether any claim of infidelity
would give rise to a claim for fraud. In response, Mr. Moore responded that, while
there is no cause of action for fraud against a third party for infidelity, Texas law does
recognize claims against third parties who commit fraud on the community, citing
Schlueter4 as support.

      In Schlueter, the jury found that the husband and his father committed actual
and constructive fraud in dealing with community assets, that they fraudulently



       4
           Schlueter v. Schlueter, 975 S.W.2d 584 (Tex.1998).
Appellees Post-Submission Letter Brief
Page 5 of 6

transferred assets between them, and that they conspired to injure the wife. 975
S.W.2d at 587.

       The court in Schlueter did not reach the issue of whether the fraud causes of
action against the father-in-law, as a third-party defendant, should be abolished. Id.
at 590. Following its decision in Schlueter, the court in Chu v. Hong then announced
that, as a general matter, torts “clearly can” be alleged against third parties. 249
S.W.3d 441, 445 (Tex.2008). Thus, Schlueter and Chu demonstrate that a spouse
may sue a third party who commits fraud on the community.

     For these reasons, and for the reasons stated in Appellees’ Brief and during
argument, the Court should affirm the trial court’s judgment.

                                         Very truly yours,
                                         /s/ Daryl Moore
                                         Daryl L. Moore,
                                         Counsel for Appellees
Appellees Post-Submission Letter Brief
Page 6 of 6


                              CERTIFICATE OF COMPLIANCE

      Relying on the word count function in the word processing software used to
produce this document, I certify that the number of words in this letter brief,
excluding the contents listed in TRAP Rule 9.4(i), is 1,414.

     This post-submission letter brief complies with the typeface requirements of
TRAP Rule 9.4(e) because it uses a conventional typeface no smaller than 14-point
(WordPerfect X6 14-point Times New Roman).


                                                      /s/ Daryl L. Moore
                                                      Daryl L. Moore



                                 CERTIFICATE OF SERVICE

       On November 12, 2015, I sent a true and correct copy of this Post-Submission
Letter Brief via E-service to the following:

       Michele Barber Chimene
       THE CHIMENE LAW FIRM
       2827 Linkwood Dr.
       Houston, Texas 77025-3809
       michelec@airmail.net

       Attorneys for Appellants,
       Jerry Scarbrough, Melissa Deaton,
       and Denise Steele

                                                      /s/ Daryl L. Moore
                                                      Daryl L. Moore




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BOARD CERTIFIED, CIVIL APPELLATE LAW, TEXAS BOARD OF LEGAL SPECIALIZATION
