*1 137 сourt, State, Like the trial we conclude the two its exclusion. Smith v. 507 S.W.2d 779, product were the of custodial (Tex.Crim.App.1974). statements 781 As we have interrogation occurring prior receipt determined, already the two statements The warnings. the Miranda statements product were the interrogation custodial reason. properly suppressed were preceding thus, warnings; Miranda We further conclude this result is not al- they are excluded on constitutional tered, assuming even the statements were grounds. Whether the might statements 3(c). § exception within the to article 38.22 otherwise gestae amount to res of the ar- We overrule the State’s first issue. rest or the offense is irrelevant. Id. See Estelle, 623, also Pilcher v. 528 F.2d 624- The Second Issue (5th Cir.1976) curiam) (Miranda (per 25 issue, In the State its second protections not subordinate to Texas res if in custody asserts that even Ortiz was rule). gestae We overrule the State’s sec- at the time he subject interrogation ond issue. statements, made the two the statements are nevertheless admissible under res Conclusion by article 38.22 gestae exception provided § provides part 5. That section Having overruled the State’s two issues nothing precludes in article 38.22 ad appeal, we affirm the order of the trial mission “of a statement is the res suppressing the two statements of gestae of the arrest or of the offense.” Ortiz.
See Crim. Proc. Ann. art. 38.22 Tex.Code (West 2005).
§ ges- 5 A statement is res startling
tae if to a response “made
event, spontaneously impulsively, with contrivance,
out time for reflection or response
such a statement can be made in State, inquiry.”
to an v. 771 Williamson 1989, (Tex.App.-Dallas 606 S.W.2d In the ESTATE OF Doris Rose refused). pet. may Statements be admissi PRESTON, Deceased. if gestae they ble as res of the arrest even interrogation. resulted from custodial 02-09-00095-CV, Nos. 02-09-00233-CV. (Tex. State, Etheridge v. 903 15 S.W.2d Texas, Appeals Court Crim.App.1994). The record must show Fort Worth. that “the declarant was excited or emotion ally in the grip shocking stimulated or a July event so as to render the statement a State, spontaneous utterance.” Ward v. 657 (cit (Tex.Crim.App.1983)
S.W.2d 136 (Tex. State, Scott v.
ing S.W.2d 759 State,
Crim.App.1978); Smith v. (Tex.Crim.App.1974);
S.W.2d 749 Graham State, (Tex.Crim.App.
v.
1972)). determining whether
When gestae,
statement is admissible as res requires
first concern whether Miranda *4 Hamren, Coats, Rose,
Nancy Yale, H. Lee, P.C., Houston, TX, Ryman & Appellee Surety Western Co. LIVINGSTON, C.J.; PANEL: McCOY MEIER, JJ. OPINION MEIER, BILL Justice.
I. INTRODUCTION Doris Rose Preston died intestate in County Denton on August 2005. After Appellant Scherry J. Levi applica- filed an *5 tion for letters of in administration Decem- seeking appointеd ber 2005 to be adminis- estate, tratrix of Doris’s three and a half years of what the trial court described as “extensive,” “miserable,” and “tortured” litigation appeals followed. These stem from a large part litigation, of that in ultimately which the trial court entered penalty death against sanctions both Appellant and Michael B. Preston. 02-09-00095-CV, In cause number issues, Scherry and Michael raise nine challenging judg- an amended final default Appellee ment in favor of Deartis Preston. 02-09-00233-CV, In cause number Scher- issues, ry eight challeng- and Michael raise ing a final in E. judgment Stephen favor of Dubner, successor administrator of the es- Preston, tate of Doris Rose and Western Surety Company.1 modify will We judgments both causes and affirm the judgments as modified.
II. AND FACTUAL PROCEDURAL BACKGROUND Morris, Finley, Robert S. Hammerle PLC, TX, Denton, Appellants Scherry for People A. Levi
J. and Michael B. Preston. Doris, Michael, Scherry, Gwendolyn Wilburn, II, Carrollton, TX, siblings. Gwendolyn’s David J. are Deartis is bio- son, Appellee logical adopted Deartis Preston. but Doris judgment assigned file portion 1. The of the final in cause was to Deartis. Deartis did not 02-09-00233-CV in favor of Doris's estate a brief in either cause. Deartis, Gwendolyn, Deartis is the cided to relocate
sometime around 1985.2 lived; Bay City, where Gwendolyn to Doris’s estate. has Eva to sole heir Doris, child, Eva, acting primary sister. that Eva had been as the another Deartis’s Eva, Deartis, caregiver for Deartis since Doris died and Gwendolyn togeth- lived County day-to-day continue in that role on a er in Denton until Doris died would basis; and that the funds in the accounts August 2005.3 allegedly that Doris had entrusted to Pleadings Proceedings B. 2006 Michael be used for would Michael, Deartis’s benefit. who lives Appointed 1. Ad Litem moneys Angeles, Los testified that “[t]he Be- appointed The trial Gretchen that were entrusted to me are entrusted to attorney guardian nolken ad litem and ad family. our That would be take care.of January litem of Deartis in 2006. The ” Eva, Gwen, Deartis.... designated estate matter was cause num- At hearing, the conclusion of the ber PR-2005-00802. expressed questions trial court that it had about the status of the two accounts that Prove-up Hearing 2. March allegedly Doris had entrusted to prove-up On March at Michael and that now in were them hearing appli- December 2005 said, The trial court names. administration, cation for letters of Scher- trying my I’m to determine mind ry testified that at the time of Doris’s *6 and I’m not so sure that it’s clear in death, in Bay City, she owned a house if anybody’s mind these accounts were (the house); a Texas Austin Street accounts, they convenient were benefi- vehicle; containing several bank accounts accounts, ciary they were accounts like $20,000; approximately and a teacher re- accounts for the use and benefit trust of According Scherry, tirement account. to they moneys given or were to Deartis deposit Doris also owned two certificate of her and brother? sister approximately accounts—one worth family going I believe the is to do $79,000 approximately and another worth family I’m says, trying what the but $49,000 she had “entrusted” —that estate, If part determine: that’s of the Michael take care of “[t]o it; got part I’ve to bond if it’s ..., to make sure that all of his estate, I’m then not concerned about it. of, things anything medical are taken care need, know, might you Scherry’s that he so that he’ll “if responded counsel happy be person’s comfortable the rest of his bank transfers it into another name, life.” probably When asked whether the accounts based on a—some kind it’s “joint right survivorship beneficiary joint were or right tenant with death,” payable Scherry responded, on survivorship designation and we don’t— “All I know is that ... the one that probate was and that that would not be a as- Benolken, however, my placed my name was name and the set.” stated that this placed one that Michael’s name was on was time that was the first she had heard that in his name because his name was on that those accounts existed and that she shared my one and name on the was other one.” the trial court’s concern about their status. Scherry explained family that her had The trial court signed authorizing de- ordеr retarded,” Michael, Gwendolyn According 2. was "born and Dear- Doris "took care of” Deartis, Gwendolyn, tis ahas "retardation.” and Eva. administration that dependent Clarifying letters of 5.Amended Order Appointment administratrix of Dor- Benolken’s appointed $100,000. is’s estate and set a bond at In July the trial court signed an agreed clarifying amended order Benolk- 3.Amended Ad Litem Order appointment en’s and duties as the attor- 22, 2006, On March the trial court ney guardian ad litems of Deartis. signed appointing an amended order Be- Among things, other the order provided guardian attorney nolken ad litem and ad that Benolken power prosecute had the provided litem Deartis. The order ancillary proceedings “to effectuate the given Benolken was “to be access to all of protection of Deartis Preston and his financial, medical, DEARTIS PRESTON’s rights, claims and assets” and that Benolk- psychological, testing and intellectual rec- en ords.” given to be access to and shall review all records of Doris Preston’s assets 4.April Hearing —Motion liabilities those of her Es- and/or and/or to Reduce Bond tate, including, but not copies limited to April On the trial court held a cards, signature controlling agree- hearing motion to reduce the ments, and all records regarding Doris bond. testified that knew she she banking Preston’s and investment ac- $100,000 supposed was to obtain a bond nature, any counts of any and that so, yet but that she had not done that the all relatives of Doris Preston any [ ] allegedly two accounts that Doris had en- and all financial institutions in which she trusted to her and Michael had each been maintained such hereby assets are Bank, held by Doris at First and that produce ORDERED to such records to nor neither she Michael had withdrawn request. her [Benolken] at those respective funds from their accounts. *7 Scherry specifically acknowledged that as 6.Inventory Appraisement and dependent
the administratrix for the ad- Scherry an inventory, appraise- filed estate, ministration of Doris’s all of her ment, and list of claims on November actiоns must be taken with approval. court year almost a after she filed her In closing argument, her Benolken ad- application for letters of administration. dressed the question still-unanswered filing The listed the total value of Deartis’s about whether the funds in the two First property at the time of her death at part Bank accounts were of Doris’s estate $67,242.86. not, however, It did include they properly paid or whether were to values for the two First Bank accounts Scherry non-probate and Michael as as- that allegedly Doris had entrusted to “[tjhere sets, stating that is no evidence Scherry and Michael. anyone that a penny. has converted How- ever, legal arguments if the that I have 7.New Guardian Ad Litem ..., just identified are correct the fact that Attorney and Power of they’ve paid been over ... a could be basis of a conversion claim.” trial In ap- The November the trial court declined pointed Angela guardian to reduce or increase the bond Miller ad litem $100,000. from Surety Company Western for Deartis. Benolken remained Deartis’s later issued a attorney through pendency bond the amount ad litem of $100,000. of At litigation. hearing a on a motion brought into the Estate instructions, counts should be Scherry disclosed for agreements do not power had obtained a because the account time that she
first help of an attorney necessary required for Deartis with elements contain the Bay City and attorney §§ who was located 439 and 439A.” by Tex. Prob.Code to this case.4 no other connection who had Compel 9. Motion to Regarding Complaint Production 8. 8, 2006, Benolken filed a On December of Documents Deartis, compel motion to on behalf 13; a Benolken filed On November stating requested writing that she had Inven- Requesting Additional “Complaint Doris and Deartis financial information of Trust” Imposition of Constructive
tory and absolutely “received noth- but that she had complaint Deartis. The stat- on behalf of prayed Benolken ing response.”6 finan- had not turned over ed respond trial court order the assets of regarding cial information for documents. requests Benolken’s that there was concern Doris’s estate and Pleadings Proceedings inventory appraisement C. about Scherry had filed because it omitted the ac- deposit First Bank certificate of Original
two 1. Deartis’s Petition Scherry and Mi- paid counts that were 19, 2007, January Benolken filed an On Further, because “there have sur- chael.5 PR-2005-00802-01) (cause original petition legal evidencing certain issues faced against Scherry behalf Deartis dispute” regarding whether the bona fide Michael, averring and Mi- “[ajccounts properly Bank were as- First the funds improperly chael had received being opposed sets of the Estate as accounts.7 Deartis from the First Bank through non-tes- disposed Decedent relief, declaratory con- alleged claims for her brother tamentary dispositions to trust, money had and re- structive joint right sister via accounts with sur- ceived related to the funds.8 vivorship on death ac- payable and/or counts,” complaint requested that the January 19, Hearing— impose trial court a constructive trust on Compel Motion to “any all monies that were distributed” January the trial court On from the Bank accounts “until such First *8 hearing on Deartis’s motion to can make a determina- conducted time as the Court compel pro- failure to regarding the monies in the tion as to whether [a]c- peti- Scherry pow- the 7. Deartis later filed several amended 4. testified that she obtained attorney er of so that she could receive funds tions. from Doris's teacher retirement account. alleged part agree- 8. Benolken in that "the ending the 5. Benolken identified accounts as ments, contracts, accounts, certificates of de- in and posit, signature comply do and cards not requirements §§ the of Tex. Prob.Code requested 6. The information included “ac- 439A”; January and “that the Accounts are not ac- count information from through present regarding right survivorship the ... all check- counts with a valid market, ing, savings, money certificates of payable do nоt constitute valid and/or stocks, bond, deposit, brokerage, annuity accounts"; entirety death and "that the other accounts that Deartis Preston and/or are assets of the Estate of Doris said Accounts ownership had an Doris Preston has and/or Rose Preston.” interest in was a named owner.” and/or At the outset of the these are based on—on a moral obligation duce documents. questioned why family between hearing, the trial court members.” requests Benolken’s for documents had Scherry testified that title to the Sailfish largely by Scherry, unanswered gone partly house was her name because name, had no credit his and she duty is to see to it that Court’s [T]he agreed to turn over certain bank state- incapacitated that heir receives whatev- ments, documents, financial closing and incapacitated er heir is to supposed the documents that were in her possession. receive, that’s usually through and spent testified she had not efforts of—of these ad litems....
any of the funds that Doris had left her in the First Bank account. confusion, point ... I’m at a of some I At the conclusion of hearing, point admit. I’m at a of some misunder- trial court stated that the issue whether standing inability or—or at least to un- funds the First Bank accounts were why process reviewing derstand nonprobate belonging assets to being
the status of this estate and cer- and Michael “must be Regard- resolved.” Preston, incapaci- tain that Deartis ing how and Michael were han- heir, receiving sup- tated is what he’s estate, dling matters related to Doris’s in- posed legally to in a structure that’s cluding responding discovery to requests cognizable fight. into such a has turned documents, turning over the trial I don’t understand that. following: court stated the I And realize that [Michael] he signature Michael testified that had a [Scherry] have both made it clear to the card and several financial documents re- these long-standing, Court tradi- garding disputed First Bank account family obligations they tion-based him he paid that had been and that have very undertaken are serious to turn over his at- would the documents they they them and that believe should torney. approximately He said that of the up obligations live to those and live un- $72,000 that First Bank had transferred to obligations der those and follow them in him, $30,000 already about had been used Deartis, I respect interest of payment for a on a down house was However, I respect that. that. it lacks (the house) purchased Bay City Sailfish structure, legal cognizability and the Deartis, for Mi- Gwendolyn, Eva.9 duty the fami- Court’s matter what chael said that the Sailfish house was titled —no moral ly’s legal and ethical and under- Seherry’s in both and Deartis’s names. are, takings duty it to see Court’s Further, $72,000, $5,000 another incapacitated protected that the heir is (anoth- paid each was and Artis just morally ethically, as I be- sibling) pay attorneys’ er Preston *9 certainly happening lieve is with this $52,000 opined fees. Michael that about family, legally. but also spent had been from the First Bank ac- In handling count. terms of Doris’s estate 25, January Hearing— 2007 3. Deartis, matters, caring turning for and Compel Motion to documents, agreed over Michael with the 25, 2007, trial court family January trial court that his had “informal or On extralegal arrangements hearing on Deartis’s motion continued kind[s] ' Deartis, Gwendolyn, 9. Eva into moved house. Seherry’s requests motion for documents as ordered to compel granted
to but en’s] by be made to Order [Benolken] available on the matter. Scher- for a continuance 17, 2006,” July of this dated and it Court ry’s attorney Scherry stated that neither Scherry and Michael required both given had him of the nor Michael “produce responsive all documents to Ad 19, January referenced in the documents request Litem’s for documents.” The or- hearing, agreed and he with the trial required Scherry Michael to der also Scherry court’s assessment that had “dif- “preserve quo the status as to all assets” about the need for a struc- ferent ideas and that are part are Doris’s estate handling in the arrangement tured subject ancillary by lawsuit filed that, incapacitated matter for the heir” and Scherry Michael. against opinion, family in her “the informal ar- rangеments based on moral and ethical Hearing 6. March obligations” by should “be unfettered 1, 2007, At a hearing March Benolken ... unnecessary intrusions of the law.” Scherry’s attorney had acknowledged The trial court stated that given her a “stack of documents” that n Michael’s familial arrangements to address Scherry produced and Michael had but Doris’s estate and to “take care of Deartis” and Michael had still not “foreign arrangements legal were to the by turned over the documents detailed system. they may very While well be July 2006 order. testified moral, family based on bona fide ethical briefly given that she had “what had” [she] connections, they ties and have no enforce- to Benolken. The trial court mentioned them, ability with associated and the Court application that Miller had filed an for require has to the administration of an guardianship for Deartis. estate in accordance with the law.” The Granting
trial court that in 7. Second Order opined light of Benolk- Compel Motion to difficulty en’s continuing obtaining docu- ments, “by get the time these ad litems 14, 2007, On March the trial court Deartis, through protecting Deartis won’t signed granting a second order Deartis’s anything protect, have ... so this is a compel. motion to The trial court found difficult and untenable situation.” that Scherry respond had failed to to Be- requests
nolken’s for documents as or- 17, 2006, 4.Original by July dered the trial court on Answer and 23, 2007, February and on Party required and it Third Claim produce and Michael to all origi- early In February Scherry and nals copies pertinent of documents Michael original filed their answer and a Doris’s estate case and Deartis’s suit claim party against third First Bank in the against Scherry and Michael. The order by They action filed alleged Deartis. 19, 2007, hearing April set a to show they were entitled be indemnified complied cause whether had if First Bank the funds in the disputed and, not, the order if she had to determine accounts belong did not to them. whether she be in contempt should held court. Granting Compel 5.Order Motion to April Hearing— February
On the trial court Show Cause signed an granting order Deartis’s mоtion *10 compel. to The order Scherry stated that Miller testify Benolken called to about “wholly had respond failed to to the noncompliance with the trial court’s [Benolk- Miller although relating Security testified that cer- to Deartis’s Social bene- orders. over, fits, had turned permitted tain documents been and that she had not Be- July with the Scherry complied had any to original nolken see documents. Be- agreed clarifying amended order Scherry also testified that she had used February appointment; nolken’s the estate funds to for a pay storage space and compel; on motion to and the 2007 order $13,000 she spent had of the funds on March 2007 second order motion to from the Bank pay First account to off house, the compel. Regarding Sailfish Doris’s car. There was no evidence that Scherry Miller testified that had turned Scherry had obtained the trial per- court’s only page warranty the front of the over spend money. mission to estate deed, had not turned over the entire “clos- point At one during hearing, ing packet” company, from the title acknowledged trial court that Michael had note had not turned over the or of the personal duty “no or obligation to be be- financing documents. As for Doris’s bank fore” the trial court because he was not statements, Scherry had turned over some applicant the administrator and was not an handwritten “summaries” instead of the guardianship. for The trial court then copies actual statements or thereof. Mil- stated, opined Scherry ler had not turned over “sufficient detail” of Doris’s teacher I only myself, need to concern as'far retirement account had not produced concerned, as with whether [Michael] disability bene- concerning “information agreeable not he is to submit himself opined fits.” Miller also that it was not jurisdiction of the. court for the possible to determine what monies of Dor- purpose asking of the Court’s him to spent analyze is’s estate had been or to provide documents and checkbooks and personal money Deartis’s on the based have, he may other matters that if he documents that had over. been turned any, in any way has that relate to the per- Miller testified that was the Doris Rose Preston or Deartis Preston son with control all of over the records business. That’s all I need to know. rebuttal, were Doris’s house. On Michael testified that he understood that Miller recalled that did not want he ancillary was a defendant suit permit Benolken all to review him against filed requested Scherry’s documents at attor- only but that he was a witness Doris’s ney’s office because it would “cost thou- jurisdic- estate case. He to the submitted sands of dollars.” court, tion of trial stated that produced testified that she had him, and, attorney represented also to the possession, the documents that were in her so, already extent that he had not done that she had “sent the documents that agreed pos- turn over documents his wanted,” thought [she] [Benolken] responsive session that were to Benolken’s that no regarding records Doris’s teacher requests. Michael confirmed that much of her, given retirement account had been money that was transferred to him pro- but she admitted that she had not disputed from the First Bank account had duced all relevant bank statements and spent attorney’s been fees and on the Deartis, banking only part records Sailfish house. regarding of the documents the Sailfish recessing hearing, the trial produced, house had been that she had not Before that it was concerned about produced policy, an Atlanta Life Insurance stated “ongoing that she had not turned over documents track that the case is on” due *11 incredibly almost frus- Benolken testified in the narrative that “continuing, to the being improperly spent situation estate funds were trating, maddening document going According approval, that’s on at this time.” to without court that “items that court, normally through the trial “because indicat- are handled the estate scope to understand the of the process being totally ed she fails handled a [wеre] discovery compel accounts,” orders or the orders to of other different fashion out reaches her own conclusions about she being and that Doris’s estate funds were supposed produce, what she’s ... the ad “dissipated proximate sole re- as the enough litems don’t have information and [Scherry’s] sult of continued refusal” to nobody can go forward.” fully with the trial orders. comply court’s addressing In house docu- Sailfish April Hearing— ments, Benolken said that it looked like Show Cause signed had Deartis’s name—with- hearing, any authority
At the of the the trial out one of two outset versions —on again explained court once its frustration of the sales contract for the Sailfish house with the after that it mentioning case disa- that were in evidence.10 Benolken thor- greed Scherry’s prior testimony that oughly with shortcomings reviewed the various regard she could not take action in compliance and Michael’s with orders,11 Doris’s teacher retirement account until explained the trial court’s how closed, probate matter had she thought had violated her fidu- ciary duty as administratrix of Doris’s es- my And as I stated in rendition on tate,12 urged be removed Thursday, particularly this is a frustrat- much, a as administratrix as sanction. ing case to the Court because incurred, expense much has been The trial following court made the find- ... delay much has occurred in this ings at the conclusion of the show cause still, it Largely, appears case. there[] hearing: case, today, even this late in the remains I position concur with the of the attor- a fundamental either recalcitrance and ney ad litem that [Scherry] refusal or has been complete lack understand- given ing scope obligation multiple opportunities by as to the of the applicants simply comply the administratrix court to with document and/or guardianship produce discovery. case to repeatedly docu- She has made her records, regardless ments and of what own decisions about what she thinks is position party of the continually is or what relevаnt. She has reiterated party legal believes about the positions regarding status untenable document party production. those documents and whether the And while she continues to something believes is relevant or not. insist that given she’s Ms. Benolken ev- once, very frustrating erything, This more than sometimes performance pro- her Court.... document (1) opined Scherry's placing 10. Benolken also that Deartis would 12.Benolken noted be "on the hook under the deed of trust" if Sailfish house in both her name and Deartis’s comply did "not name, the terms of the (2) accepting money from Michael out note," only signed. which she accounts, (3) disputed of one of the ob- taining power attorney from Deartis. part 11. Benolken testified in that Michael had $2,000 charged expenses the estate for travel approval. without the trial court’s *12 selective, ex- an highly opportunity by producing duction has been to “cure” this tremely inadequate. the requested original documents in their form. The court suspended Scherry’s
... Court determines from [T]he evidence, power attorney and stated that it “will Scherry] has not even [that have possibility with her own counsel in con- under advisement the cooperated the following nection with that matter and has made sanctions: Removal of ... dependent her own decisions about what documents as administratrix him, to make available to based on erro- ... and striking of her pleadings.” [the] consideration, and irrelevant neous such 10.May 7, 2007 Order on Show Cause would, as whether or it in judg- not her ment, May On expenses signed increase in the case to the trial court its cause, order on show provide detailing findings the documents to her counsel orally set out previously April hearing which have been ordered. at the and numerous findings additional and con- very, very pa- The Court has been clusions, including following findings The tient. Court has executed more regarding Michael: than one order. The Court has allowed a lot of time. The Court has tried the 11. To the' extent there was a defi- placing method of the administratrix in a ciency any in nоtice on matters Court, noncourt record environment by heard waived [Michael] ad litem counsel and her own counsel in by appearance notice his partic- attempt simple, to secure straightfor- ipation objection voluntarily without production requests. ward document subjected himself jurisdiction to the
the Court. It’s clear that the 12. Despite being placed adequate administratrix has no notion that needs to notice of the she secure court contested nature of the approval anything, ap- accounts on which name despite repeated [Michael’s] and, [Doris’s], by actually, pears instructions addition to as well as Court previous regarding court ad litem counsel this Court’s order open by preserving It the status of such ac- quo others. is clear that she is not in- count, forming her own counsel of actions that has testified that he has [Michael] taking. purchase unilaterally expended large portions she’s The of the house $70,000 that was contained in such approval. was without court Whether it account, by alleged survivorship was deemed her to be in the under his best ward, Preston, own belief and idea that it was his mon- interest of the not, ey.... simply thumbing she is her nose at has failed abide [Michael] jurisdiction him. of the court. Court’s directives as to adjudged
The trial court both documents, [Scherry] has withheld contempt Michael constructive made her own about determinations doc- opportunity and gave “purge” them the uments, very offered irrelevant contempt by producing [and] their all of the and, fact, excuses, insulting almost by May requested documents to Benolken copy such as the machine didn’t work 2007. The trial court also decreed correctly or some other avoidance tech- following regarding sanctions: .... nique hereby takes under advise- [T]he Court imposing The trial court then found in “con- ment the harshest available to[,] sanctions, contempt” gave including structive of court and her but limited *13 Scherry that she had received a testified striking pleadings order, PR- copy in cause number of the show cause that she had [Michael] and/or GS-2007-00162, order, 2005-00802, and all an- read the and that she had received 23, or cillary proceedings copy transcript April that were could a of the of the therewith, Nonetheless, in connection hearing. have been filed she testified 2007 to, limited PR-2005- including, but not produced that she had not documents re- ancillary car, other matters 00802-01 and all to Doris’s which the estate lating proceeding, imposing] to the core paid owned and which had off penalty all available death sanc- other obtaining permis- without the trial court’s .... so; tions that she had allowed Eva to sion to do for paying drive Doris’s car without its use
11.May 7, 2007 Order on insurance; paid for though even its Status Conference money that she had used from Deartis’s 7, 2007, May signed the trial court an On representative payee pay account to taxes decreeing, order on status conference house; on the Austin Street that she had among things, other “that has [Michael] money pay filing used estate fees jurisdiction to the of this Court submitted case; guardianship Deartis’s that she had pro- a to this and all related party royalty a check an deposited into account ceedings.” that she held with Doris and that was also died; in Doris’s name when she that she
12.May 9, Granting 2007 Order money from represen- had used Deartis’s Application Temporary payee pay tative account to taxes on land Injunction by family County; owned in Cherokee 9, 2007, May granted On the trial court produced banking that she had certain rec- injunction prohibiting Scherry Mi- regarding Doris’s bank ords accounts but using any property, chael from of Deartis’s requested had not the rest of the records including disputed banks; the funds in the First depos- from the that she had never Bank accounts. royalty ited a payment for Doris into account; pro- estate that she had never 13, Hearing
13.June duced of Doris’s bills from Atmos En- Sears; ergy On June accepted trial held she had hearings the first of a number of in which check from Michael’s disputed First Bank $11,000 it considered whether amount pay- Michael account as administratrix; successfully had their purged constructive ment for her services as 7, contempt May royalty set out 2007 order that she had not listed Doris’s inventory appraisement on show cause. Additional documents interest in the 4, filed; were not turned over until deposited June 2007— that she and that she had 18, May representa- after the 2007 deadline —but the Doris’s tax refund in Deartis’s trial payee court excused the tardiness and limit- tive account instead of Doris’s estate inquiry ed its to whether and Mi- account. admitted that there chael were complied May relating had more documents to Doris’s order on cause all of estate had producing produced. show that she The the requested hearing. documents.13 trial court recessed the depos- 13. The record shows that a number of around this time. registry its were made into the trial court’s Hearing all dictate to this 14.June Court the level performance, of—lack of the level of vio- hearing court held a on June The trial lation, disregard the level of or misun- primarily scheduling to address derstanding really doesn’t matter —it hearing, matters. At the conclusion which, because it has the same effect— Scherry as adminis- sponte it sua removed expressed sorry or—I’m *14 ex- appointed tratrix of Doris’s estate and pressed by [Scherry], —demonstrated dependent Dubner successor administra- necessitates her immediate removal. reasoned, tor. The trial court apparent [Scherry], It is to me that Original 15.Dubner’s Petition admonished, repetitively held
although in Intervention in in an contempt, placed opportunity purge contempt, still does not take Dubner, dependent as successor admin- or or—either that seriously understand estate, istrator of original Doris’s filed an which, I accept, or refuses to don’t know 20, 2007, petition July in intervening obligations court-appointed a fidu- by the lawsuit filed against Scher- ciary. ry alleged and Michael. He a claim for fiduciary duty breach of against Scherry fact, good
I cannot in conscience—in it only and claims for cоnversion and for be, think, bordering I on neglect would recovery of disputed the funds First so, posi- to leave in the do pursuant Bank to probate accounts code administratrix, court-appointed tion of against section both and Mi- given the evidence be- uncontroverted chael. Surety, Dubner later sued Western time, fore the Court at this which is the surety by Scherry, on the bond filed by method which the house and the par- alleging wrongful it was liable for the acquired, ties live was the title that Scherry.14 conduct of in, complete it’s held lack of under- standing, as demonstrated the clos- 16.July Hearing ing, attorney the action to have a local provide power attorney a and have July On the trial contin- documents, Deartis Preston execute hearing regarding ued the whether Scher- when was clear it and should have— ry and Michael purged had their construc- either was known or should have been contempt. Scherry tive that she testified parties known all incapac- that he’s an returns, produced had not Doris’s tax all of person itated and should never have statements, banking Doris’s records and put position. been policy, an Atlanta Life various invoices (such funds, Foley’s), The failure to account for from creditors as Sears and funds, signature commingling the use and the cards for Doris’s undis- multiple puted funds for the benefit of other bank accounts. testified parties is all uncontroverted before the that she had canceled the insurance on the house; The failure to account in- Street had used Court. Austin she come, gas royalty, purchase replacement such as oil and estate funds to house; produce place money refrigerator failure to in the for the Austin Street registry of the court until ordered to do and that she had never collected rent from taken, son, living so or until extreme actions were her who was at the Austin $85,000. Surety against 14. Western later settled Dubner's claims it for before, very I’ve I Doris died.15 front. As said house when Street actually aware of some of the though that even she had was not also admitted рast in the that the certificates of I that I should have things testified have by Doris were to be used for deposit left sent. I did not think that she would benefit, designated she had her Deartis’s policy. Doris did not need an accident beneficiaries of a certificate of accident, children of an and there was no die using from deposit that was created funds money policy. to be collected on that account that Doris deposit a certificate of policies She have life other didn’t owned when she died and that was left one, I’m I than the not sure that Scherry’s or Michael’s name. The trial or I sent it didn’t. hearing.
court recessed the *15 banks, She had different and she had 17.July 31, Hearing 2007 the She had the insurances. CDs 31, July hearing, Scherry At the 2007 she had all of this stuff that has to be royalty testified that Doris had received keep up to with. So I tried to arranged Doris that the payments died and after things make sure that those were made payments deposited were into a “house” they I im- available because knew were Scherry’s name account and Doris’s but know, portant, you things the bank —the Scherry repaid royalty never the that had forgot situations. I don’t know how I payments Scherry back to estate. Perhaps the Hibernia account. we were that the 2006 taxes on the Austin stated account, really using not and she paid Street house had not been even many up just had so here that —that it though paid she could have them in her my not mind to it. did cross send capacity as administratrix. She also ad- just I had no reason to hide it. I payments had received mitted she didn’t think to send it. weren’t We disputed from Michael from one spending anything out of it.... 28, February First Bank accounts after Deartis, they [presumably Then when (the 2007, signed date the trial court Gwendolyn, and moved down Eva] compel) order on Deartis’s motion to there, I had three houses to be—con- there were still documents her I many reports tend with. had to be possession pertaining to Doris’s estate that in. timing sent I—sometimes the was The trial produced. she had not long enough.... hearing. recessed really I did not understand account- 18.August Hearing ing, trying get myself and I was to so that when we it— organized sent August hearing, attorneys At an long past because I did not realize it was Scherry more questioned about the Sailf- due.... house, accounts, ish bank and her failure produce gave to documents. She the fol- hearing. The trial court recessed the lowing explanation timely for her failure to 19.September Hearing produce relevant to documents Benolken’s requests: hearing September At a
More than one time I’ve been asked testified that she had received things, for different but let me start at checks from Michael that were drawn on a granted Scherry’s July ap- 15. The trial court had Austin Street back in but house plication never had the authorize demolition of the house demolished. even not in lieu though requested First Bank account other relief disputed knew the trial court had ordered that she request this case.... Ad Litems the Court expended from no more funds were to be to take affirmative implement action and previ- accounts. And as in a disputed the proposed sanctions which this Court that when she hearing, agreed ous has previously taken under advisement in disputed deposit certificate of renewed the case.” Deartis outlined allegedly had entrusted account that Doris alleged Michael’s sanctionable conduct— her, Deartis as its designate she did not provide discovery, the refusal to to render beneficiary. accounting, obey and to the trial court’s Michael testified that he had been “inte- requested, orders —and among other grally” litigation involved in the since it things, trial court enter death began; that he understood that the order penalty against Scherry sanctions and Mi- required produce on show cause him to chael, to, including, but not limited striking documents; using that he wrote checks pleadings their the PR-2005-00802-01 Bank disputed funds from a First account entering cause and a default judgment after the trial court ordered him and against adopted posi- them. Dubner the status preserve quo as tion asserted Benolken in Deartis’s mo- *16 assets”; agreed at аn “all and that he had tion for sanctions. hearing making earlier that he was appearance before the trial court in all Hearing 21. October and submitting matters and to the trial court’s Closing December jurisdiction. Michael further testified that Arguments thought compliance he with the order on voluntary, show cause was that the funds 26, 2007, On October the trial court con- from the First Bank ac- spent disputed evidentiary vened the final hearing re- family, count were used for and that the garding whether and Michael had Sailfish house was because purchased successfully purged their constructive con- Deartis, Gwendolyn, and Eva needed a tempt. granted The trial court Benolken home. The trial court recessed the hear- clarify a “trial amendment” to that Dear- ing. applied tis’s motion for sanctions retroac- tively,16 confirmed and Michael 20. Deartis’s Motion for Sanctions applied order on show cause to him. The 19, 2007, On October Deartis filed a parties rested and closed at the conclusion against Scherry motion for sanctions and trial heard hearing, and the Michael in the PR-2005-00802-01 cause closing arguments hearing at a on Decem- (Deartis’s against Scherry suit and Mi- ber 2007. chael). The motion stated that it was Pleadings Proceedings and “filed out of an abundance of and D. 2008 caution[ ] causes, Benolken, Miller, Dubner, foregoing conclusively and counsel for are admitted following signed and Michael evidence to be considered and used for as stipulation: purposes regard all matters all prior testimony documentary ev- [A]ll and which been noticed set for have and/or prior in cause, idence obtained and admitted all hearing in this whether as continu- (PR-2005-00802-01), hearings in this cause any prior hearing(s) an initial ation of or as PR-2005-00802, and in Estate Case No. 26, 2007, hearing, any con- on October and GS-2007-00162, Guardianship Case to- No. hearing tinued related or trial thereafter. or gether with all orders entered each of the (vii) thereto; opposing interpos- from Order on Motions 1.Consolidated Compel and For ing any objections concеrning Sanctions and them, and Cause Show damages against all evidence of (viii) being from entitled to obtain re- 4, 2008, signed the trial court On March sponses any pending discovery re- compel motions to a consolidated order on Preston, quests from Deartis Ad Litems cause, granting and for sanctions and show Dependent Successor Adminis- and/or Deartis’s compel Deartis’s motion to and (ix) trator, hereby awarding judg- and sanctions, hold- Dubner’s motions for and liability in favor of ment default on in constructive ing and Michael and the Estate of Doris Preston failing comply contempt of court for orders, against [Scherry] Rose as Preston setting out detail with numerous [Michael].... acts and omissions and Michael’s order, underlying imposing death against both of
penalty sanctions them. Penalty 2.Post-Death Sanctions in part, The order stated Hearings hereby strikes all of the Court [T]he hearings The trial court on convened pleadings [Michael] 2008; 19, 2008; August Au- June PR-2005-00802, cause number GS- 22, 2008, Benolken’s, Miller’s, on gust 2007-00162, ancillary proceed- and all then-pending applications Dubner’s for at- ings that were or could have been filed torneys’ ruling applica- After on the fees. therewith, including, in connection but tions, hearings the trial court convened to, not limited PR-2005-00802-01 and 22, 2008; 12, 2008; August September ancillary all other matters to the core *17 December to allow Benolken and proceeding, imposes and all other avail- prove up damages, including Dubner to sanctions, including, able death penalty in exemplary damages, their suits be- to, precluding [Scherry] but not limited against half of Deartis and the estate (i) acting from as De- [Michael] and/or (cause Scherry and Michael PR-2005- (ii) Administrator/rix, pendent from be- 00802-01). ing appointed as Guardian of the Person Preston, the Estate of Deartis and/or
(iii) acting agent-in-fact from as 3.Order of Severance (iv) Preston, Deartis from pursuing 11, 2008, On December the trial court that have brought claims been or could signed severing judg- an order the default brought any have been in of the Related ment and all claims and issues of any ancillary Cases further mat- and/or against and Miсhael from cause (v) thereto, defending ters from claims PR-2005-00802-01. The trial court as- that have brought been or could have signed cause PR-2005-00802-02 to Dear- brought been in the Related Cases tis’s case. any ancillary further matter and/or (vi) thereto, from offering eliciting Proceedings E. 2009 any evidence relating or defenses to the causes of action that were or could have Judgment— 1. Amended Final Default by been against asserted him or her PR-2005-00802-02 Attorney Ad Litem or Guardian Ad Li- 8, 2009, January On the trial court Dependent tem or Successor Adminis- signed judgment trator in an amended final default any of the Related Cases any ancillary against Scherry further matters in favor of Deartis and and/or (1) payment Michael.17 The order awarded the secure of the funds from account 612”; referenced ending Sailfish house to Deartis free and clear of above and “at- liens, claims, torney’s and expenses” against and encum- fees Scher- any and all (1) ry $29,125.45 in the amounts of “for (except “governmen- brances for claims of attorney’s expenses fees and of equitable and an taxing [Dubner] tal authorities” that would not have otherwise been in- granted by separate judgment lien (2) except curred for the actions estate); inac- enjoined any favor of Doris’s and/or (2) $53,186.62 Scherry, tions of’ “for fees persons and all and entities from “[u]nder- expenses by incurred [Miller] endanger taking actions which would would not have (3) otherwise been incurred [hjouse in any way”; the Sailfish de- except for the actions inactions of’ and/or clared the Sailfish house Deartis’s sole and (3) $174,067.00 Scherry, “for fees and (4) separate property; awarded Deartis expenses incurred [Benolken] damages” “actual in the amount of would not have otherwise been incurred (5) $127,000; exemplary awarded Deartis except for the actions inactions of’ $414,000; and/or damages the amount Scherry. judgment Of the awarded to (6) awarded Deartis prejudgment Michael, $85,000 against Doris’s estate was postjudgment interest. The trial court assigned Surety. May Western On signed fact findings its and conclusions signed the trial court an order that January law on assigned portion judgment final Judgment 2. Final in favor of Doris’s estate to Deartis. —PR-2005-00802-01 April signed judgment Surety On the trial court The awarded Western $85,000 Dubner, judgment indemnity a final on its against favor as claim estate, Scherry plus attorneys’ fees expenses successor administrator of Doris’s $38,408.63.21 in the amount of The trial Surety against Scherry and Western adopted Dubner’s and Regarding Michael.18 Western Sure- Dubner’s claims joint ty’s proposed findings of fact and against Scherry probate under code sec- conclusions of law. tion the trial court awarded Doris’s $13,023.70.19 estate On Dubner’s claims *18 3. Account for Final Settlement against Scherry both Michael and under 442, 22, 2009, probate code section the trial court On October the trial court $83,635.10.20 Doris’s signed approving awarded estate The an order the account for Dubner, trial additionally by ordering court awarded Doris’s es- final settlement filed estate, exemplary damages property tate in the amount of that no remains in Doris’s $180,716.94; duties, equitable discharging an lien on the Sailf- Dubner of his and clos- $25,070.34 in the in ing provided ish house amount of “to the estate. The account judgment figure damages 17. This the and Mi- 20. This consists $78,368.14 appeal appellate chael from in 02-09- cause $184.47 less a credit amount 00095-CV. $5,451.42. plus prejudgment interest of judgment 18. This is and Mi- granted summary The a 21. trial had appeal appellate chael from in 02-09- cause Surety judgment in favor of Western on 00233-CV. 25, 2009, indemnity March based on an agreement by Scherry. figure damages executed This consists of $92,213.73 amount of less a credit of $80,383.93 plus prejudgment interest of $848.90. 156 imposition discovery at sanctions
part that
total value of
estate
court’s
“[t]he
accounting period
for an abuse of discretion. Cire v. Cum
beginning
(Tex.2004).
835,
2008,
12,
mings, 134 S.W.3d
838
A
26,
to June
was
[June
2009]
trial court abuses its discretion if it acts in
$128,029.26”
considering
but that after
to-
manner, or if
arbitrary
or unreasonable
total cash disbursements and
receipts,
tal
any guiding
it acts without reference to
(which
expenses paid
attorneys’
included
principles.
Aquama
rules or
Downer v.
disbursements,
fees),
non-cash
and total
Inc.,
238,
Operatоrs,
rine
701 S.W.2d
241-
of the estate on hand was
the total value
(Tex.1985),
denied,
42
cert.
476 U.S.
$0.00.
(1986)).
B. Direct Nexus dence and admitted in all obtained *20 following finding presented 22. The trial court made the Based on the evidence over the hearings, in the March 2008 consolidated order on of the Court believes course these compel motions for sanctions every gain made effort to [counsel] show cause: [Scherry’s] compliance and [Michael’s] were entered every in ... with this Court’s orders that 45. The Court has confidence counsel for in these Related Cases. [Michael].... conclusively probate through ... as matters their infor- hearings are admitted own mal, intra-family procedures. Scherry’s for all evidence to be considered and used attorney, acknowledged and Michaеl’s even purposes regard with to all matters.” had “different ideas about the no argues Michael that there was direct arrangement”; need a structured offensive conduct and nexus between the Scherry’s opinion, family the “informal ar- he imposed the sanctions' because “was rangements” by were to “be unfettered the party a to the action other than as a unnecessary ... intrusions of the law.” beneficiary multi-party P.O.D. of the ac- But the trial court exclaimed that it had a brought counts back into the estate of duty require that the administration Preston” he was not Doris and because Doris’s estate be conducted in accordance However, 7,May served. in the 2007 or- although spend- with the that meant law— cause, der on trial show the court found ing money time and estate litigating that, extent there was deficien- “[t]o case, permitting which li- included ad cy any by notice on matters heard representing tems to fulfill their duties in Court, waived notice his [Michael] Deartis’s interests. trial As the court appearance ob- participation without identified, Scherry’s without and Michael’s jection voluntarily subjected himself to orders, compliance with its the ad litems jurisdiction of the The record Court.” enough “don’t have information and no- supports finding. this body go can forward.” Accordingly, part we overrule the signed But after the trial court two or- Scherry’s and Michael’s first issues chal- granting compel ders motions to and con- lenging propriety or- sanctions hearings, ducted several it made the fol- der prong under the first of the Trans- lowing findings May 2007 order American test. on show cause relevant to its various at- C. Excessiveness tempts compliance to obtain or- its ders: Turning Scherry’s and Michael’s ar (cid:127) very, very pa- Court has been excessive, “The
guments that the sanctions were tient.” above, under the standards articulated we (cid:127) (1) must decide penalty attempted whether death “The Court has to forebear (2) sanctions[,] sanctions were on the imposition warranted and deter which mine whether the record reflects that the рrogression Court considers a ” (a) trial court considered lesser sanctions lesser sanctions.... striking Scherry’s before (cid:127) and Michael’s “The Court has executed more than (b) pleadings actually tested the lesser one order.” striking pleadings sanctions before un (cid:127) “The great Court has allowed a deal of involving “exceptional less this is a case time for compliance.” Cire, misconduct.” at 842. See (cid:127) “The Court has even tried the method placing [Scherry] in a non-court- procedural background The factual and attempt record environment ... in an in painstaking above sets out detail the to secure her proper responses to sim- years of litigation dragged on due in ple, straightforward produc- document large part re- and Michael’s requests.” tion comply fusal to with the trial or- court’s (cid:127) early January ders. As as the trial “The attempted Court has to make expressly recognized orders that would maintain the status ” and Michael .... quo had chosen to handle Doris’s *21 (cid:127) imposed “The has not sanctions March 2008 order on motion compel Court to cause, [Scherry] past
on in the in an effort to and for sanctions and show the trial there recognize possibility consequently court made the following might misunderstanding findings regarding have been a Scherry: part [Scherry] respect on the with 1. of complying Instead with the ” court-imposed obligations.... to her Court’s orders and heeding this (cid:127) every “The has exercised lenien- Court repeated warnings, Scherry Court’s
cy [Scherry] every toward to allow her engaged Levi in an unremorseful possible latitude.” pattern practice and of her own choosing, only patchy and this, Notwithstanding all of on based production self-determined of rele- Scherry’s failure and refusal to abide vant orders, documents the face of clear the trial court’s it concluded that unambiguous and instructions to the she contrary from this Court. The (cid:127) behavior”; modify “will not her Court finds that Levi has (cid:127) comply”; not “will possession, custody, and control of (cid:127) documents”; produce “will not сlearly respon- documents which are (cid:127) impose “will continue to her own deci- sive discovery [Ad Litems’] re- judgment relevancy sions and on the quests and this Court’s orders com- documents”; materiality pelling production which she has not (cid:127) “will continue withhold documents produced. and offer irrelevant excuses rea- 2. The [Scherry] Court finds that whol- documents”; sons for failure to tender ly produce failed to either a fiducia- ry accounting or the associated rec- (cid:127) positions “will continue to take which ords, both of which were required by are not defensible.” previous orders.... making findings After these and conclu- sions, sanctions, imposing instead of 5. The Court finds that did trial gave Scherry yet and Michael provide any justifiable valid or opportunity “purge” another their con- excuse or reason for the absence of contempt. structive But Mi- documents, records[,] so, ultimately chael failed to do as the accounting, and that she did not 13, 2007; 30, 2007; hearings on June July show cause whatsoever as to 31, 2007; 1, 2007; July August September why impose this Court should not 18, 2007; and October reflect.23 her.... against sanctions Among things, Scherry other admitted relating there were more documents pro- Despite being placed adequate to Doris’s estate that she had not duced, and Michael admitted that he had notice of the contested nature of written using disputed cheeks funds from a accounts on which name [Michael’s] [Doris’s], First Bank account after the appears trial court in addition to as preserve previous had ordered him and well as this order Court’s quo regarding preserving quo status as to “all assets.” In the the status 23. The trial court even excused 2007 deadline that it had set earlier. comply May Michael’s failure to with the *22 account, [Scherry] conspired 22. The evidence further showed that such only joined in with participated in dissi- not [Michael’s] [Michael] matter, [Scherry’s] actions in this portions pation large of the respect $70,000 including her actions with in that was contained such comply to her refusal to with this alleged survivorship account.... disсovery Court’s orders and the discovery requests, Ad Litems’ but despite 12. The finds that clear Court actively intentionally also di- ... direction from this Court did, [Scherry] rected to act as she [Scherry] commingle could not to, including, but not limited her ... belonging funds and assets to respect actions with to her refusal ..., the Estate she [Deartis] and/or comply with this Court’s discov- obstinately continued to handle ery orders and the Ad Litems’ dis- property Deartis’s and Estate covery requests. in property way.... her own in [Scherry], capacity 13. her as De- 24. The finds that [Michael] Court was Administratrix, pendent breached possession of documents relevant fiduciary her duties and trust that case, specifi- to this and which he she owed to the Estate in numer- cally was produce, ordered to respects.... ous produce was able to but refused to do so.... [Scherry] fiduciary 15. breached her following The trial court made the “Gen- duties and trust that she owed Findings”: eral respects.... in numerous [Deartis] 44. It is an accurate statement that the following The trial court made the find- Court “has bent over backwards” ings regarding Michael: many over the course of months to placed adequate was [Michael] provide ev- [Michael] joint notice that account he ery comply chance to with their [Doris], alleged held with which he [Deartis], obligations duties right survivorship had a valid Court, parties and the in each designation, claimed was to be the Cases, of these including, Related property of [Deartis] and/or to, extending but limited dead- Estate. Despite being placed on lines, excusing nonperformance be- adequate notice of the contested May tween 2007 and June nature accounts on which 2007, offering to ex- conferences appears name [Michael’s] addi- duties, plain holding lengthy hear- [Doris’s], tion to as well as this ings, answering questions posed previous regarding Court’s order stand, [Scherry] from the witness preserving quo the status of such their explaining open duties account, has testified that [Michael] court, entering which orders unilaterally he has expended large оpportunity allowed for $70,000 portions of the that was purge contempt repeated and their alleged contained such survivor- comply failure and refusal to account, ship under his own belief valid Court orders and Ad Litems’ that it money.... and idea was his discovery requests, all to no
avail.... The Court has extended *23 forbearance, every delay, ev- ure every engage good and refusal to ery possible discovery obey second chance is faith and lawful in its at- compelling discovery, in these Related Cases Court orders very result that there tempt to avoid now has arisen the presump- cases, has occurred in these tion that they engaged now have [in] i.e., costs, extremely including high pernicious such a course con- of at- court-appointed fiduciaries’ and duct because their claims and de- torneys’ expenses, in com- fees and have no merit. fenses plex growing litigation because
of the inactions and actions of 62. The Court there are no lesser finds [Scherry] and [Michael]. imple- sanctions which could be gain [Scherry’s]
mented to Throughout proceedings 47. these cooperation [Michael’s and com- ] Cases, pliance each of the Related [Scher- in this case. The Court is ry] and have flaunted Ad [Michael] Litems’ strenuous mindful of disrespect argument their for this Court and that monetary sanctions system obliged likely may it is to orches- empty constitute an implement. trate and Their own remedy against either or both testimony [Scherry shows and [Michael ] because ] operated on their own al- it they [Michael] are collectible. doubtful system.... ternate The there Court is no finds grant-
reasonable alternative to the ing penal- the most severe death Although remedy contemplated ty sanctions in each the Related herein associated with a failure to [Scherry Cases as to both ] harsh, might be comply Court [Emphasis [Michael ]. added.] the en- finds and concludes that [Scherry’s] forcement of The record thus shows that [Mi- obligations duties and in trial court chael’s] afforded and Michael present cоmply the circumstances here are opportunities numerous with its orders, paramount importance. they The proceeded but to administer recalcitrant, reluctant, using Court is and Doris’s estate their own informal unwilling dispose procedures they of a case on and admitted that had and, therefore, procedural grounds comply failed to with the trial court’s or ders, progressive being given op favors sanctions. The even after numerous has been reluctant to assess portunities comply. totality Court On the record, pen- penalty what are referred to as “death this we conclude that death sanctions, excep alty” but because of the sanctions were warranted this parties, conduct evidence tional case.
presented, and the reasons detailed The March 2008 consolidated order order, will now implement this compel motions to and for sanctions and said sanctions. lengthy, reasoned show cause contains why penalty
explanation as to death sanc- The order also wpon [Scherry’s appropriate. 60. Based tions were ] [Mi- persistent clearly and obstructive shows that the trial court consid- ] chael’s case, ered, including, ultimately rejected, behavior in but but lesser mone- to, The trial indicated repeated tary not limited their fail- sanctions. orders; “reluctant” to assess death the trial court’s Scher- it was understand nonetheless, but, con- penalty ry “just sanctions that she didn’t think to testified *24 was “no reasonable alter- cluded that there responsive send” documents. granting native to the of the most severe Accordingly, we conclude and hold that penalty death sanctions” because of the the trial court did not its discretion abuse monetary that the sanc- likelihood lesser sanctions, penalty by imposing death and “empty remedy.” tions be an The would Scherry’s we overrule the remainder of 4, March 2008 order further shows that issues, including and Michael’s first their reasonably the trial court found that arguments challenging the sanctions order Scherry’s persistеnt and Michael’s and ob- prong under the second of the Trans- justified presump- behavior the structive American test.25 tion that their defenses to Deartis’s and merit. “Ordinari- Dubner’s claims lacked
ly, required a trial court would also be IV. DISPUTED FIRST by the effectiveness of sanctions test lesser BANK ACCOUNTS actually implementing ordering and each Scherry arguments and Michael assert appropriate to pro- sanction that would be disputed relevant to the First Bank ac- compliance mote with the trial court’s or- second, seventh, in their eighth counts and Cire, in this 134 ders case.” S.W.3d at issues in cause 02-09-00095-CV and their Scherry’s 842. But because of and Mi- second, sixth, and seventh issues cause disregard discovery blatant the chael’s 02-09-00233-CV. process exceptional involving case misconduct, protracted penalty death sanc- A. Second Issue —Cause 02-09- clearly justified, tions were and trial 00095-CV not required court was to first test lesser Welborn, Citing Chandler v. imposing
sanctions before
case determina-
(1956),
tive
156 Tex.
294
801
sanctions.24 See id.
S.W.2d
Scherry
argue
“any
and Michael
that
arguments
and Michael’s
upon
all causes
action
founded
sur-
their
rights
constitutional
were violated
...
vivorship
belonged
accounts
to the es
because the trial court’s orders lacked
tate of
and not
because
[Doris]
[Deartis]”
specificity and because Michael was not a
Supreme
Texas
has
“[t]he
Court
held
party
unpersua-
to the estate action are
heir
right
bring
does not have
[a]
7,May
sive. The
order
2007
on show
during
pendency probate
suit
of the
detail,
again,
discovery
cause set out
except
estate
for the benefit of the estate.”
Scherry
and Michael were ordered to
Indeed, the executor or administrator of a
produce,
Michael
ju-
submitted to the
generally
decedent’s estate
has the exclu
risdiction of the trial court on several occa-
throughout
sions
right
bring
recovery
record.
sive
suit for the
argue
they
personal property
Michael do not
did not
real
belonging
Nonetheless,
dependent
the trial court stated at thе
administrator. The trial court
April
conclusion of the
2007 show cause
therefore tested lesser sanctions.
hearing that it “will have under advisement
possibility
following
Re-
sanctions:
25. To the extent that
and Michael
dependent
moval of
...
as
adminis-
any
arguments
raise
other
within their first
through
tratrix. ...” The trial court followed
analysis,
issues that are
addressed
our
sanction,
imposed
removing
this lesser
arguments
inadequately
those
are waived as
dependent
as
administratrix on June
(i).
Tex.R.App.
briefed. See
P. 38.1
appointing
Dubner successor
Tex.
Ann.
and Michael argue
the estate.
See
Prob.Code
that section
(West 2003);
probate
442 of the
Wynn,
liability
§
code “limits the
233A
Frazier v.
(Tex.1971)(“It
any payee
to an
greater
amount not
is settled in
S.W.2d
‘than
party,
the amount that
P.O.D.
personal representative
Texas that the
payee, or beneficiary received from the
ordinarily
the estate of a decedent is
”;
multiple-party account’
that “as a mat-
only
to sue for the
person entitled
recov-
ter of law there could not have been a
estate.”);
ery
property belonging
to the
fraud, conversion,
fiduciary duty,
breach of
Chandler,
156 Tex. at
at
other cause of action against Appel-
*25
(“When
pending,
806
administration is
accounts”;
by Appellee
lants
related to the
generally
heirs are
not entitled to maintain
“[a]ny potential
and that
liability was limit-
recovery
belong-
for the
of property
suit
ed to the amount of the accounts for the
”). However,
ing to the estate....
the su-
benefit of the estate of Doris Preston.”
in
preme
recognized
also
Chandler
Probate code section 442 authorizes the
exception
general
to the
rule when “it
use of multi-party
pay
account funds to
appears that
administrator will
debts, taxes,
expense
and
of administration
act, or
antago-
cannot
that his interest
is
under certain circumstances. Tex. Prob.
desiring
nistic to that of the heirs
to sue.”
(West
2010).
§
Code Ann.
442
Supp.
Nei-
318,
156
at
Tex.
judgment that of title “divest[s] belonged pur Deartis averred to him—to through finding the Sailfish a [to house] chase the house. See Punts v. Sailfish property.” They constructive trust on the Wilson, 889, (Tex.App.- 137 S.W.3d 891 argue that constructive trust im- “[t]he 2004, pet.) (stating Texarkana no that the posed property on the ‘Sailfish’ a rem- was relationship between an executor and the edy available the Probate to Court.” gives estate’s beneficiaries is one that rise law). fiduciary duty
A trust is a rela a as a matter of constructive to tionship respect property, subject When one’s funds or other assets are used him ing person by by fiduciary acquire property whom the title to the self, duty may seek the property equitable aggrieved party is held to Lesikar, convey ground property it to another on the that his itself or its value. 33 Seherry already 29. We have 30. To the extent that and Michael reasoned above that any arguments within these six raise other standing against Deartis had to assert claims analysis, issues that are not addressed our Seherry both and Michael. arguments inadequately are waived as those 38.1(i). Tex.R.App. briefed. See P. Duncan, 336, (Tex. case, trial parte at 304. In this court 462 S.W.2d writ). 1970, the Sailfish house conveyance Civ.App.-Houston ordered a no [1st Dist.] Weiss, ability to Deartis. See v. 984 S.W.2d A trial court no enforce a Carr has 1999, pet. de- (Tex.App.-Amarillo judgment, entirely void which is null with nied) Bean, (affirming judgment which trial in itself. Easterline v. 121 Tex. (Tex.1932). upon constructive trust imposed court 49 S.W.2d We property conveyance and ordered of that sustain and Michael’s third issue To the extent that prоperty). in cause to the extent 02-09-00095-CV challenge by attempt- Michael the award they complain part about the of the ing money to raise a fact issue that from permanent injunction ordering Scherry to disputed First Bank accounts was not making payments continue on the Sailfish house, purchase used to the Sailfish we house. already explained
have
that when the trial
granted
judgment
a default
in favor
EQUITABLE
VI.
LIEN
Deartis,
allegations
all
of fact
forth
set
In
the third issue
cause 02-09-00233-
petition
Deartis’s
were deemed admit- CV, Scherry
challenge
and Michael
ted,
may
and neither
nor Michael
portion
judgment
of the final
that estab-
challenge those admissions now. See Holt
an equitable
lishes
lien on the Sailfish
Atherton,
Aside from as support, obligation In to make installment the fourth issue in cause 02-09- 00233-CV, payments mortgage on a home is not en challenge and Michael (1) by forceable contempt because it consti the awards to Doris’s estate of $29,125.45 imprisonment tutes v. attorney’s debt. “for fees and ex- Whitt Whitt, 731, (Tex.App. penses 684 S.W.2d 734-35 of that would not have [Dubner] 1984, writ); -Houston no except [14th see Ex otherwise been incurred for the Dist.] (2) another, Scherry; plaintiff may actions inactions of’ of recover in a and/or $53,186.62 expenses “for fees and incurred separate suit for his reasonable and nec- not have by that would otherwise essary [Miller] expenses prior litigation.” of the except incurred for the actions been must, however, prerequisites and/or Certain be (3) $174,067.00 Scherry; of’ (1) inactions plaintiff met. These include: expenses “for fees and incurred [Be- attorney’s must have incurred fees in have that would not otherwise nolken] the prosecution prior or defense of a except incurred for the actions been (2) and/or action, and the litigation must have Scherry. inactions of’ In the fifth issue party involved a third and must not have 02-09-00095-CV, Scherry Mi- cause brought against been the defendant in challenge chael the award to Deartis of the same action in which the fees are $127,000. damages” “actual in the amount sought. challenge and Michael do not Turner, Subsequent this Court and Benolken, attorneys’ award of fees to Mil- appeals other Texas courts of have held
ler, pursuant and Dubner to the order “equitable principles may allow the approving the account for final settlement. recovery attorney’s of fees and other
The trial court awarded these litigation expenses ‘where a party was damages attorneys’ based fees incurred required prosecute or defend the pre- as a result of and Michael’s misc consequence vious suit as a ” III, Telfair, onduct.31 See Oscar M. P.C. “wrongful act” of the defendant.’ 167, Bridges, (Tex.App. v. 161 S.W.3d Tex., Brown & Brown Inc. v. Omni of 2005, pet.) (recognizing -Eastland no recov Metals, Inc., 317 S.W.3d 399-400 ery аttorneys’ upon based equitable fees (Tex.App.-Houston pet. [1st Dist.] grounds required when claimant was denied) (citations omitted); see also prosecute litigation involving or defend Enters., v. Sup- G.R.A.V.I.T.Y. Inc. Reece party consequence wrongful third as act Co., ply (Tex.App.- 177 S.W.3d 546-47 defendant). Appeals The First Court pet.). Dallas no recently exception addressed this to the general recovery attorneys’ rule for the Although we are not directed to fees, reasoning as follows: recognized case in which this court has exception, exception is nonetheless in-
[Appellee] acknowledges
gen-
that the
regarding cause
applicable
02-09-00233-
“attorney’s
eral rule Texas is that
fees
*29
the
were
in
CV because
fees
not incurred
a
may
opposing
not be recovered from an
prior litigation involving
party;
a
third
party
recovery
unless such
is provided
fees were incurred in the same action for
by
by
statute or
contract between
they
which
were awarded and for conduct
However,
parties.”
in Turner
[v.
(Tex.1964)
by
caused
the same defendant.
See
Turner,
],
We Accordingly, accounts. puted First Bank in cause 02-09-00233-CV. issue Scherry’s and Michael’s sixth we overrule 02-09-00095-CV, the Similarly, in cause in and fifth issue cause 02-09-00095-CV on damages” was based award of “actual issue cause 02-09-00233-CV. by Benolken and attorneys’ fees incurred involving the in the same case and Miller IX. EXEMPLARY DAMAGES We therefore hold
same defendants. awarding Deartis by trial court erred In in cause 02-09- eighth issue we damages, fees as actual attorney’s ninth issue in cause 02- 00233-CV and the and Michael’s fifth issue sustain 09-00095-CV, Scherry and Michael chal- See Brown & in cause 02-09-00095-CV. damages. lenge exemplary the awards of 400; Sw., Brown, at 2007 317 S.W.3d MRO arguments challenges construe their as We 4403912, *2. WL at sufficiency of the evidence to legal support the awards. OF CAUSES VIII. SEVERING exempla- include Unliquidated damages In issue in cause 02-09-00095- the sixth therefore, ry damages; evidence must be 02-09- and the fifth issue cause CV damages to sus- presented exemplary 00233-CV, argue Michael Scherry and judg- tain an award thereof a default reversible error the trial court committed ment. Herbert v. Coast En- Greater Gulf severing against Deartis’s suit them ters., Inc., (Tex.App.- 915 S.W.2d of Doris’s from Dubner’s action on behalf writ). Houston no Exem- [1st Dist.] estate. only if the plary damages may be awarded The trial court has broad dis proves by convincing claimant clear and Fed. Savs. cretion to sever causes. Guar. respect evidence that the harm with Co., Operating Horseshoe Bank v. recovery exemplary which it seeks dam- (Tex.1990) (op. reh’g). malice, fraud, gross ages results from (1) controversy if A claim is severable Tex. Civ. Prac. & Rem.Code negligence. (2) action, more than one cause of involves 41.003(a) (West 2010). § If Supp. Ann. be the the severed claim is one would on a statute establish- the claimant relies proper subject independent of a lawsuit if authorizing of action and exem- ing cause (3) asserted, claim is ly the severed plary damages specified circumstances ac remaining not so interwoven with the conjunction specified culpable or in with a they tion that involve the same facts state, may exemplary damages mental be Id.; Dep’t Highways issues. see State if only proves by awarded the claimant Cotner, Transp. & Pub. v. 845 S.W.2d convincing clear evidence that (Tex.1993). controlling The reasons specified from the cir- damages resulted justice, are to do avoid for a severance culpable cumstаnces or mental state. Id. *30 prejudice, further convenience. 41.003(c). convincing § evi- Clear and Horseshoe, 793 at 658. S.W.2d degree proof dence is that measure or of record, in the trier of produce reviewed the entire that will the mind of We have the we that the trial court acted within its fact a firm belief or conviction as to hold to be estab- by severing allegations sought Deartis’s suit truth of the broad discretion 41.001(2) (West 2008); § Id. Tex. from Dubner’s suit on behalf of Doris’s lished. (West 2008); Further, § Ann. Scherry and Mi- Fam.Code 101.007 estate. See id. (Tex. K.E.W., 16, harm, v. 315 S.W.3d 20 chael have demonstrated no consid- State Moriel, 2010); v. 879 Transp. not enter Ins. Co. ering that the trial court did
169
(Tex.1994).
10,
Hall,
164,
(Tex.2005);
31
This intermedi-
v.
168
S.W.2d
S.W.3d
170
preponder-
Garza,
falls between the
607,
ate standard
Tel.
Sw. Bell
Co. v.
164 S.W.3d
proceedings
(Tex.2004).
ance standard of civil
and the
Generally,
627
if we deter-
pro-
reasonable doubt standard
criminal
insufficient,
legally
mine that evidence is
G.M.,
846,
In re
847
ceedings.
596 S.W.2d
we must then reverse and
judg-
render
(Tex.1980);
Addington,
State v.
588
J.F.C.,
256,
ment.
In re
96 S.W.3d
266
569,
(Tex.1979).
570
the
S.W.2d
While
(Tex.2002);
43.3; Garza,
Tex.R.App.
see
P.
proof
weight
must be of a heavier
than
merely the
the
greater weight of
credible
A. Ninth Issue —Cause 02-09-00095-
evidence,
requirement
there is no
that the
CY
unequivocal
undisputed.
evidence be
or
The trial court awarded Deartis exem-
Addington,
at
588 S.W.2d
570.
$414,000.
plary damages in the amount of
When a
attack is made
specific
upon
The trial court
following findings
made the
legal
sufficiency
or factual
of the evidence
fact, among
others:
support
the trial court’s determination
By
fiduciary duty,
7.
her breach of
damages
judgment,
a default
gain
intended to
an addi-
is entitled to a
appellant
review of the
tional unwarranted benefit and en-
produced.
Briggs,
evidence
Dawson v.
107
gaged
dealing.
in self
(Tex.App.-Fort
S.W.3d
748
Worth
pet.).
no
In
evaluating
evidence
By
fiduciary duty,
his breach of
[Mi-
legal sufficiency,
we must determine
gain
intended to
an additional
chael]
whether the evidence is such that a factfin-
engaged
unwarranted benefit and
reasonably
der could
form a firm belief or
self dealing.
conviction that
its
finding was
true.
already
haveWe
held above that
K.E.W.,
20;
315
at
S.W.3d
Columbia Med.
by awarding
the trial court erred
Colinas,
Hogue,
Ctr.
Las
Inc. v.
271
“actual
damages”
amount of
(Tex.2008).
S.W.3d
248
We review all
$127,000
attorneys’
based on
fees. Not
the evidence in
light
most favorable to
interest,
withstanding
only
other relief
finding.
271
Hogue,
S.W.3d at 248.
upon
that the trial court awarded Deartis —
any disputed
resolve
facts in favor of
We
fiduciary
his claims for breach of
duty
finding
if a reasonable factfinder could
conspiracy
fiduciary
to breach
duties —re
K.E.W.,
20;
have done so.
315
at
S.W.3d
(1)
house, including
lated to the Sailfish
Hogue,
disregard
supreme found requir- gain to the rule an additional property” exception of himself. benefit for noting recovery damages, suggested of actual ing Supreme Court [has] [T]he the return of equity requires that “where pre- willful and fraudulent acts are that of the consider- ‘recovery property, ... fiduciary gains an sumed when the constitutes a result of fraud paid ation as as a result additional benefit for himself serve as a basis damages and will actual of his breach. ” damages.’ recovery exemplary of for added) (citаtions omitted). (emphasis Id. Ass’n, Longview v. Sav. & Loan Nabours sufficiency of examine the We therefore (reason- (Tex.1985) 700 S.W.2d 904-05 ex- support the award of the evidence holding grant that the mere ing that its Mi- damages Scherry’s or emplary will not an award injunctive support relief fiduciary duty regard chael’s breach of damages “should not be con- punitive house. to the Sailfish to allow with an absolute refusal fused damages equita- in a case where punitive hearing on Dear- prove-up At the had”); Lesikar, at is 38 S.W.3d ble relief Scherry Miller testified that damages, tis’s complete title to 310. Deartis’s award of $24,520.38 closing on the paid towards appears the Sailfish house is award those funds came Sailfish house and that requirement fit within the that he recov- from a check that Michael had drawn damages er actual to sustain an award of First Bank accounts. disputed one of the exemplary damages. not contrib Miller stated did money her own towards the ute
The trial court found that house; that of the Sailfish Scher- purchase factually evidence to is sufficient “[t]here and Deartis’s ry placed both her name justify exemplary damages award for house; the title to the Sailfish name on fiduciary duty....” A defen breach of that such action constituted a breach of fiduciary duty dant’s intentional breach of fiduciary both and Michael’s plaintiff may a for which a recover tort Deartis; and that “ob Lesikar, duties to exemplary damages. 33 S.W.3d by having a benefit” her name on stated, tained] 311. The court in Lesikar at the title to the Sailfish house. Miller did general it is a rule that Texas While any way or on her explain elaborate recovery punitive allow the courts a testimony bene “obtain[ed] defendant, damages where the in com- Although Scherry may fit.” have intended tort, mitting willfully, malicious- acted and, to have her name on the title accord fraudulently, dam- ly, punitive or where Miller, by doing “obtained a benefit” ing to fiduciary ages are awarded for breach of so, there is no evidence that or duty the actual motives of defendant fiduciary duty to Michael breached a Dear- and whether the defendant acted with Scherry’s name on the title putting tis something malice are immaterial. But gain intent some additional with the simple required more than a breach is benefit, surrounding nor circum do recovery punitive damages; for the support or evidence stances circumstantial constituting the acts the breach must words, fraudulent, inference.32 In other there is least inten- have been at Scherry or Michael may be no evidence that tional. An intentional breach January hearing Deartis had no credit in his 32. At the on Dear- name because compel, Scherry tis’s motion to testified that name. partly in her title to the Sailfish house was *32 fiduciary duty prove-up hearing to Deartis for At the on the any damages breached estate, Doris’s Dubner testified in the obtaining a benefit purpose the narrative, “I’m asking give— the Court to testimony Even if Miller’s themselves. exemplary damages, award based on clear more than a scintilla of evi- amounted to evidence, convincing and of two times the of that fact and did more than raise dence damages, amount of actual not including fact, suspicion and of that a mere surmise fees, strictly on attorney’s damages more, testimony, capa- her without was ” themselves for funds.... On cross- ble of a firm belief or conviction producing examination, agreed Scherry’s Dubner that that or Michael breached a fidu- during conduct “egregious,” case was ciary duty gain with the intent some and he testified that and Michael benefit therefrom. To the extent had legal process” “obfuscated the and exemplary damages trial court awarded type that “this case is the of case that does theory, based on some other there is no exemplary damages, warrant based on any evidence that harm resulted from [Scherry’s] behavior and the fact that she fraud, malice, gross negligence. or See time, continuously, failed time after to fol- Tex. Civ. Prac. & Rem.Code Ann. orders, low things to do that she was 41.003(a). § hold that the evidence is We do, basically asked to and thumbed her legally support the award of insufficient nose at the entire process.” damages, and we sustain Scher- exemplary To the extent the trial court award- and Michael’s ninth issue in cause 02- ry’s exemplary damages ed based oh Dubner’s 09-00095-CV. claims, fiduciary duty breach of there is no Eighth B. Issue —Cause 02-09- evidence that or Michael breached 00233-CV fiduciary duty to Doris’s estate with the gain intent to some additional benefit. See The trial court awarded Doris’s Lesikar, 33 at 311. To the extent exemplary damages estate the amount exemplary the trial court awarded dam- $180,716.94. adopted The trial court ages theory, based on some other there is following findings regarding exemplary no harm from evidence resulted damages: malice, fraud, gross See negligence. convincing 31. The clear and evidence Ann, Prac. & Tex. Civ. Rem.Code [Scherry] reflects the conduct of 41.003(a). § We hold that the evidence is outrageous been has [Michael] legally support insufficient to the award of [Scherry] that both have [Michael] damages, we Scher- exemplary sustain at flagrant all times exhibited a disre- ry’s eighth and Michael’s issue cause gard of the orders of this Court. 02-09-00233-CV. fully all times was at [Michael] [Scherry] acting aware that in con- was X. CONCLUSION fiduciary travention of her duties as ad- Having sustained and Mi- conspired ministratrix of the Estate and fifth, third, and ninth chael’s issues in connection with such 02-09-00095-CV, modify cause we breach. in that judgment amended final default (1) 33. Based on the conduct of [Michael] cause to delete the award of actual (2) $127,000.00, [Scherry], appropriate it would be damages the amount award the ... for ex- in the judgment exemplary damages Estate award of (3) $414,000.00, in the amount of emplary damages portion amount of $180,716.94. injunction permanent requiring *33 Kraus, payments on See Nat’l Bank v. making continue Alamo (Tex.1981). Additionally, Having sustained
the Sailfish house.
the trial court found such awards were not
fourth
Seherry’s
eighth
and Michael’s
and
02-09-00233-CV,
unconstitutionally
comported
excessive and
we modi-
issues in cause
with the Texas Civil Practice & Rеmedies
fy
judgment
final
in that cause to
id.;
(1)
See
Tex.
Prac. & Rem.
Code.
Civ.
for fees
expenses
delete
the awards
and
(West
2010);
§
Supp.
Ann.
41.008
Code
$29,125.45, $53,186.62,
of
the amounts
Kraus,
clear and evidence. In the trial findings
court’s of fact and conclusions of
law, appellants it found that had breached fiduciary their appellees; duties to CONTRACTING, CONCEPT GENERAL such breaches were committed with an INC., Concept Builders, Af BW d/b/a gain intent benefits and consisted of L.P., Housing, Capitol fordable self-dealing; appellants conspired Indemnity Corp., Appellants, breaches; with each other in these v. conspiracy the torts of civil and breach of fiduciary duty awards; supported the ASBESTOS MAINTENANCE SERVICES, INC., that the were justified. awards Further- Appellee. more, the trial court found that there was sufficient evidence under the fac- Kraus No. 07-10-00332-CV. support by looking tors to the awards Texas, Appeals Court the nature of the wrongful character of the Amarillo, involved, conduct the degree culpability Panel A. wrongdoers, the situation and sensi- concerned, July parties bilities of the and the extent to which such conduct offends the
public’s justice sense of propriety.