*1 — Ajayi She instructed Appeal number of Sanctions for Frivolous
times to send her information Finally, requested AOU has about the event to which she or impose upon Angelou we sanctions her office respond. would a frivolous appeal of the trial court’s order overruling her special appearance. See — She instructed her office to send Tex.R.App. P. 45. The question whether information to be included in the to grant discretion, sanctions is a matter of program and for the event to be which prudence we exercise with and cau publicized. tion, only after careful deliberation. Diebolt, In this See light, her letter Casteel-Diebolt v. agreeing to be in th 302, (Tex.App.-Houston [14 Houston accept specific Dist.] award on a 1995, writ). Although imposing no sanc “random, fortuitous, date is far from discretion, tions is we will within our do so Rather, attenuated” contact. it was the truly that are egre circumstances culmination extended process, Robinson, gious. Bridges See which Angelou, directly and through her th 104, 114 (Tex.App.-Houston [14 agents, took an active up role that led h.); City pet. Dist.] no Houston v. her agreement to come to Houston to ac- Crabb, (Tex.App.-Houston cept award. [14 writ). Dist.] th Indeed, Angelou does not contend that Though we with the merits disagree trying the case in unduly Texas would be Angelou’s after appeal, considering the burdensome on her. She admitted her briefs, record we Angelou’s do not deposition Texas, that she specifi- comes to believe the circfimstances this case war Austin, cally “quite a appear- lot.” Her rant therefore sanctions. We overrule ances include at request least twelve AOU’s for Rule 45 sanctions. paid speaking engagements in Texas between 1995 and We affirm the trial court’s order.
1999. This paid includes four engage- ments in Additionally, 1999. Angelou has twenty-two print, books in all of which are
sold in Texas. She stated that the south- ern states are a large source of sales for Lynwood and Harriet LESIKAR her books. Texas has some interest Lesikar, Appellants, Lewis resolving a dispute where the contract was AOU, to have been performed in Texas. plaintiff, operating from the state of RAPPEPORT, Lou Lewis
Texas, has chosen Texas as the forum al., Appellees. et obtaining the most convenient and effec- No. 06-98-00126-CV. tive relief. Texas, Appeals Court of
The trial court’s finding specific juris- Texarkana. diction over Angelou does not tradi- offend April Submitted 2000. tional play notions of fair and substantial Sept. Decided 2000. justice. We therefore find that the trial Opinion Granting Appellee’s court did not in denying Angelou’s err Rehearing Motion for Overruling special appearance specific juris- based on Appellants’ for Rehearing Motion diction. We Angelou’s overrule specific Dec. 2000. jurisdiction this, issue. Because of we need not determine whether Texas courts general jurisdiction exercise over her. Tex.R.App.
See P. 47.1. *8 Werley, Law Gary Gary
S. Office of S. Worth, Smith, Werley, Gregory Fort D. Flock, Moore, Ramey Tyler, & Alison H. Chandler, Bradley, Jacquelyn D. A. Beth Coe, Irons, Dallas, Thompson, Cousins & appellants. for Harris, Watson, Jerry S. David R. Har- bour, Smith, Merritt, Longview, Harris & appellees. CORNELIUS, C.J., Before GRANT and ROSS, JJ.
OPINION
Opinion Chief Justice CORNELIUS. appeal Harriet Lesikar Lynwood and Rap- from an adverse impose peport’s suit them constructive and recover trust fiduciary relationship. fraud and breach of working In bought H.G. Lewis located in interest in the Lee oil lease T.W. Texas, half of the Longview, assigned operated interest to J.C. Robbins. Lewis L name & G Oil the entire lease under the until in 1980. Company his death assigned Lewis and each Robbins Thomas, Clark, Shapiro & law Winters Thomas), Austin, (Clark, firm Texas ¾2 working interest in oil wells and 5 on the n lease, In the collectively interest. 1970s, early drilled two new wells on Lewis lease, Thereafter, wells 3A and 7A. Clark, although assignment the 1964 only 2 and explicitly Thomas covered wells paid pro- Lewis Thomas for oil operating duced and billed the firm for expenses though working it owned a ½ also interest not in wells but in wells 3A and 7A. *9 1980,
In leaving Lewis died a will daughters, Jenny Rappe- named his two Lesikar, co-independent port and Harriet will, In Lew- executrices of his estate. his Jenny and Harriet each an undivid- gave fifty interest in his estate for percent ed children. life with remainders to their Among Lewis’s assets at his death was his 2 and 5 to lease, interest in wells assign would its in the Lee one-half interest T.W. alone; the letter estate, Jenny Lyn and Lew- through Harriet’s husband which the Lewis, widow, oper- calling Bishop to Fay continued would be Lyn is’s stated Company. July L & ate under the name G Oil offer.” On concerning a “settlement 1985, Clark, that it In Thomas determined Jerry 18, Jenny’s attorney, Bishop notified in to it of an interest assignment had no Harris, assignment, proposed about L 7A notified & G Oil wells 3A and and will- would be that the estate agreed who employ- An L G Company of that fact. & overpayment completely to settle ing Clark, stating that she ee wrote Thomas Clark, in- for Thomas’s exchange claim in assignment L & G’s files for an searched Jenny’s Despite in and 5. terest wells 7A, concerning wells 3A and but found interest, Werley agreed later with Bishop Nevertheless, L & G continued to none. the court had ordered that because Clark, expenses operating Thomas for bill closed, be unable the estate would estate 7A, con- wells 3A and and associated with in claim ex- overpayment to settle firm it owned pay though tinued to as Clark, Thomas’s interest change for an interest those wells. subject and 5 because that would wells Lyn- In Harriet and her husband any ongoing liability for the estate to Jenny, Fay, and (Lyn) wood Lesikar sued Clark, against claims third-party seeking declaratory judgment others Lyn’s They agreed interest. Thomas to in the Lewis party’s ownership each litigation exchange settling the In accounting. estate and Clark, interest in wells and 5 Thomas’s Clark, Lesikars added Thomas as defen- acceptable. would be dant, theory seeking to recover under trial, Harris, July preparation enrichment, unjust “overpayment” 19, 1994, stat- Lyn the Lesikars. deposed on wells and 7A. In estate had made 3A had to spoken that he deposition ed his Clark, response, attorney, Barry Thomas Clark, acquiring about the firm’s Thomas Bishop, attorney, contacted the Lesikars’ deposi- in wells and 5. After the interest Gary Werley. According Bishop’s to testi- tion, Werley Bishop and ad- Harris wrote Clark, mony, Werley agreed he and agreement to enter into an vising them not Thomas would disclaim its interest wells it. party made a On unless Clark, Werley would Thom- drop and 5 assignment amended the August Bishop and to recov- as from the lawsuit not seek that, among provi- other provisions add letter overpayment. Bishop er the wrote a Clark, sions, Thomas indemnify would Werley describing understanding, their for all overpayment “Rule 11 for the but parties referred to as the not Werley sign did not with wells agreement,” but claims connected 7A, agreement it at that time. The he sent a return with 3A and also wells Clark, only that Thomas would dis- That assignment Werley. stated copy of the have in might claim interest it wells assign- day, Werley agreed to same exchange “plaintiffs,” for the 3A and 7A A few Bishop. and returned it to ment over- Lyn, pursuing Harriet and their later, Werley signed and returned to days the firm. payment claim Bishop agreement Rule 11 Bishop the agree- to that pursuant required, still 14, 1994, the trial court or- April On Clark, ment, Thomas Werley dropped July estate closed. On dered Lewis August the lawsuit. On 13, 1994, Werley Bishop a letter to sent re- assignment and signed Thomas Clark, Thomas owed the estate claiming trial to Lyn. August it On turned the estate had made overpayment for the and the over- began, Lewis estate close the day, Werley 3A and 7A. The next on wells *10 Clark, against Thomas was payment claim as- Bishop proposed a letter with sent Clark, into its own suit. whereby Thomas severed signment attached 17, 1994, Lyn recorded the August On Clark,
assignment from Thomas. Later parties negoti- met to day, that same At the litigation. ate a settlement of the Lyn did wish to meeting, indicated he Clark, negotiations, discuss the Thomas any- not know and Harriet stated she did thing assignment. The discus- about of the liti- sions resulted a settlement the Lewis estate. On gation concerning request, at Harriet’s the over- October payment against claim Thomas was prejudice. without A final dismissed At- signed on October 18. mutual in which tached to it was a release party each released the other from liabili- however, ty; the release contained party provided clause which neither liability concerning the was released from overpayment. 1994, Jenny learned early October from the gotten permission had L replace Railroad & G as Commission operator of the lease. On October L Jenny, individually and on behalf of & G Company Oil and as “co-trustee testamentary pursuant trust to Lewis’s owners, working will” and several interest brought against suit the Lesikars injunction, alleg- for an overpayment and that the Lesikars had taken and con- ing income from estate verted to their own use Jenny property. On November brought capacity suit the same fiduciary duty Lesikars for breach of granted tempo- and fraud. The court Jenny rary restraining order that allowed L operate the lease and it as & to re-enter QUESTION [NO.] joined, together The suits were G. the suit from which the Lesikars they form commit fraud Lynwood Did Lesikar bring appeal. Rappeport? Lewis against Jenny Lou special ques- court
The trial submitted recovery on all theories of tions or “No” Answer “Yes” and defense. omit the 'instructions We ANSWER: Yes and definitions. The answered QUESTION [NO.] follows: fraud commit Did Harriet Lesikar QUESTION 1NO. Rappeport? Lewis against Jenny Lou her Did Harriet Lewis Lesikar breach Rap- Lewis fiduciary duty Lou or “No” Answer “Yes” following respects:
peport any of
293 Yes ANSWER: or “No” Answer Wes”
QUESTION [NO.] Yes ANSWER: following you Do find that part conspiracy parties Question were No. 8 you If have answered Rappeport? Jenny Lou Lewis damaged Question No. oth- Wes” then answer No. 10. Question not answer
erwise do NO. 10 QUESTION amount, any, you if do find What Clark[,] firm or its succes- Thomas law on overpaid Lynwood Lesikar was sor Lee Lease of the T.W. production QUESTION NO. a.) $298,547 October 1989 present? acquire Op- Lynwood Did Lesikar b.) For the calendar years through $239,152 1989? Lease de- of the T.W. Lee September erations Question No. 8 have answered you If ception? Question No. oth- Wes” then answer 11. Question No. do not answer erwise Answer “Yes” or “No.” QUESTION NO. ANSWER: Yes the Es- representative When did [QUESTION 6NO.] Jr. know or should tate of H.G. Lewis Clark, Thomas you Do find that the of a known of the existence they have firm law did not own interest Wells overpayment claim? potential 7A Lee Lease? 3A and on the T.W. by Month and Year Answer June ANSWER: “Did Not or “Did Own” Answer Own” QUESTION [NO.] Did Not Own ANSWER: intentionally in- Lynwood Did Lesikar QUESTION 7NO. existing operating terfere with Jenny Rapppeport you Do find that Lewis Jenny Lou agreement between estopped asserting over- [sic] Company L & G Oil Rappeport d/b/a Clark[,] Thomas, claim payment owners of the working and the interest 7A in any, if out of Wells 3A and Wells justified? that was not T.W. Lee Lease the T.W. Lee Lease? or “Did Not “Did Interfere”
Answer or “No” Answer “Yes” Interfere” No
ANSWER: Did Interfere ANSWER: QUESTION NO. 8 Question No. you If have answered Question 2, 3, 4, or 5 Wes” then answer Clark, Thomas find that the you Do Ques- not answer otherwise do No. in inter- firm it’s successor [sic] law tion No. 13. est, produc- any, overpaid was on the Lee Lease?
tion of the T.W. QUESTION NO. Trust “Yes” or “No” you Answer find that Constructive Do Clark[,] Thom- imposed should Yes ANSWER: trans- in the Lee Lease as interest T.W. Question No. 8 you If have answered Lesikar? Lynwood ferred 9, oth- Question No. “Yes” then answer Question No. 9. not answer erwise do No: Yes or Answer
QUESTION NO. 9 Yes ANSWER: overpayment that the youDo find QUESTION [NO.] of a mutual mistake? the result *12 QUESTION if if money, any, paid What sum of [NO.] cash, reasonably in fairly now would money, any, sum of if should be What compensate Jenny Rappe- Lou Lewis against Lynwood assessed Lesikar and port damages, any, for her if that result- Jenny Rappeport awarded to Lou Lewis you act wrongful ed from such have exemplary damages as for the conduct 1, 2, 3, 4, Questions in or 12? found 2, 4, Question[s] 1, in response found 12? or following Consider the elements of if
damages, any, and none other. separately Answer dollars cents, if any. Answer dollars and cents, any, if each of the following: million ANSWER: $2 in correcting 1. Costs incurred you by If have found clear and con- wrongful conduct? Ques- vincing your evidence answers [to] $12,000.00 ANSWER: 1, 3, Question tion Nos. or then answer reputation? 2. to business Ques- Loss not answer No. otherwise do tion No. 17. ANSWER: $0 QUESTION [NO.] Clark[,] Loss of the value of the
3. August Thomas interest on 1994? if money, any, What sum of should be Harriet Lesikar and assessed $88,000.00 ANSWER: Jenny Rappeport awarded to Lou Lewis pay operation- 4. Failure to reasonable exemplary damages for the conduct al on the Lee Lease? expenses T.W. 1, 3, Question or 4? response found $26,122.00 ANSWER: tax return Unpaid 5. estate income cents, any. Answer in dollars and preparation expense year for tax $500,000.00 ANSWER: 1994? QUESTION $1,750.00 NO. 18
ANSWER: Jenny Rappe- Lou you
Do find port Company and L & Oil ratified G QUESTION [NO.] Clark, Thomas, assignment by Win- is a reasonable fee for the nec- What Lynwood by Lesikar Shapiro ters & Lou Lewis essary Jenny services of and re- sending expenses, invoices for case, Rappeport’s attorney in this stated in- some of the ceiving payments on in dollars and cents? voices? with an Answer Dollars and Cents following: amount for each of the or “No” Answer ‘Tes” preparation
a. For and trial. No ANSWER: $253,444 ANSWER: QUESTION 19NO. to the appeal b. For Court you Jenny Rappe- Do find that Lou Appeals. Company and L & Oil have port G $30,000 ANSWER: assign- ability waived the contest to a making responding c. For Lynwood Lesikar ment petition Supreme for review Thomas, Shapiro by sending Winters & of Texas. Court expenses, receiving pay- invoices for $15,000 ANSWER: on some of the invoices? ments If found clear and con- you have Ques- your answers to vincing evidence or “No” Answer ‘Tes” 1, 2, 4, 5 or 12 then answer tion Nos. ANSWER: No Question No. otherwise do not an- QUESTION Question 16. NO. swer No. with an Answer in Dollars and Cents Rappe- find that Lou you Do n following: amount each of
port Company L & G Oil commit- and/or selling ted the oil from the T.W. waste price for a lower than
Lee Lease *13 available, of working to the detriment all owners? interest Answer “Yes” or “No” No
ANSWER: Question you If have answered No. Question based on oth- The court ‘Yes” then answer No. rendered Question jury’s answer 21. erwise do not No. answers.
QUESTION jury NO. 21 challenge The answers Lesikars of Jenny’s regarding breach fidu- favor money, if any, you sum of do What ratification, waiver, fraud, ciary duty, and damages find to be the sustained they are conspiracy on the basis that not Lynwood a proximate Lesikar as cause factually suffi- supported by legally and/or Jenny of Lou Rappeport? the conduct of challenge They cient also evidence. Cents, any. Answer in Dollars and if awards, damages including actual the con- ANSWER: $0 awards, overpayment structive trust and QUESTION 22NO. as well as the awards. punitive you Jenny find that Rappe- Do Lou AND BREACH OF DUTY FRAUD FIDUCIARY
port prosecution committed malicious of Lynwood proximately that Lesikar The that Harriet found breached Lynwood caused Lesikar to suffer dam- fiduciary many duty her to re- ages? Lyn and and spects that both Harriet were contend
guilty of
The Lesikars
that
fraud.
Clark,
assignment
Thomas to
Answer ‘Yes” or “No”
not
Lyn did
amount to a breach
fiducia-
No
ANSWER:
Harriet,
duty
they
or
and
ry
fraud
Question
you
If
answered
have
No.
failing
that
court erred in
contend
the trial
Question
then answer
oth-
“Yes”
No.
la, lb, lc, Id, 2,
disregard jury findings
to
Question
erwise do not answer
No. 23.
and 3
there is no evidence or
because
QUESTION
support
to
factually
NO. 23
insufficient evidence
They
them.
also contend
Harriet’s
money, if any,
you
sum of
do
What
dismissing
suit
Thomas
fairly
reasonably
find would
com-
overpayment
for the
did not amount to a
pensate Lynwood Lesikar
dam-
for his
fraud,
duty
they
or
fiduciary
breach
ages
proximately
and losses
were
erred in failing
contend
the trial court
Rappeport
by Jenny
caused
Lou
on the
ques-
to
disregard
jury’s
to
answers
any?
question,
occasion
lc, 2,
They
tions
3.
also contend that
transfer
of the
operations
of the
T.W.
in Dollars and
Answer
Cents
Lee oil
did not amount
lease
ANSWER: $0
fraud, and
fiduciary duty
they
breach of
failing
erred in
contend
the trial court
QUESTION
24NO.
ques-
disregard
jury’s
answers
is a reasonable fee for the nec-
What
If,
lh, 2,
lg,
3.
tions
Lynwood
essary services of
Lesikar’s
jury’s
The
attack all of
attorney in this case
reference to the
Lesikars
fiduciary
findings
to breach
related
dispute?
title
evidence,
it
duty.
point, they
clearly
their first
attack the
ance of the
Bain,
unjust.
legal
sufficiency
findings
wrong
and factual
la
Cain v.
(Tex.1986).
through
point, they
Id.
In their third
When under
review, may
legal sufficiency
findings
taking
sufficiency
attack
If
a factual
we
through
point
merely
lh.
In a later
substitute our
for that
regarding
opinion
we
damages, they
legal
actual
attack the
suffi- of the trier of fact and determine that
ciency
finding
le.
If
one of the would reach
a different
conclusion.
(Tex.
Curtis,
findings
upheld,
Merckling
of breach
be
911 S.W.2d
1995, writ de
jury’s finding
App.-Houston [1st Dist.]
that Harriet breached her
nied);
duty may
Capon,
will
Hollander v.
upheld.
We
lc,
judge
is the
finding
speaks
first address
which
726.
sole
*14
case,
weight
the
assignment
credibility
the heart of this
and
of the witnesses and
dismissal,
may
given
testimony,
or
of the
to be
their
and we
settling
estate’s
juror
assessing
overpayment claim.
not act as a thirteenth
credibility
the evidence and the
A
that the trial
challenge
appeal
Clubb, 7
witnesses. Seelbach v.
S.W.3d
disregard
jury finding
court failed to
a
1999,
749,
(Tex.App.-Texarkana
pet.
755
a legal sufficiency
must be construed as
denied).
challenge. See Brown v. Bank Galves
of
undisputed
It is
that Harriet and
Ass’n,
(Tex.
ton,
140, 145
Nat’l
930 S.W.2d
and beneficiaries
were both co-executrices
1996), aff'd, 963
App.-Houston [14th Dist.]
co-execu-
of the Lewis estate. As both
(Tex.1998).
reviewing
a
S.W.2d 511
beneficiaries,
the oth-
trices and
each owed
legal sufficiency
question,
“no
or
evidence”
fiduciary duty,
er a
and each was entitled
light
we consider all the evidence
fiduciary obli-
fulfilling
to the other’s
her
jury finding, indulg
most favorable to the
gations.
ing every reasonable inference
favor of
finding.
Corp.
Associated Indem.
v.
a
An executrix of an estate is
Inc.,
276,
Contracting,
964 S.W.2d
CAT
a
of the estate beneficiaries. As
fiduciary
(Tex.1998);
v.
Transp.
285-86
Ins. Co.
a
fiduciary, she owes the beneficiaries
Moriel,
(Tex.1994).
10,
If
879 S.W.2d
25
candor,
duty of
faith and
as
good
strict
competent
there is more than a scintilla of
general duty
of full disclosure
well as
support
jury finding,
evidence to
we
respecting
affecting
matters
the beneficia
finding.
sup
affirm the
The evidence
will
Kennedy,
v.
Montgomery
ries’ interests.
to more than
porting
finding
amounts
(Tex.1984);
309,
v.
Welder
669 S.W.2d
313
a
if it
a reasonable basis
supplies
scintilla
Green,
170,
(Tex.App.-Cor
175
985 S.W.2d
differing
for reasonable minds to reach
denied);
1998,
Hawthorne
pus
pet.
Christi
as to the existence of the cru
conclusions
(Tex.
Guenther,
924,
v.
934
917 S.W.2d
Moriel,
Transp.
fact.
Ins.
v.
879
cial
Co.
1996,
denied);
App.-Beaumont
writ
Chien
Sander,
25;
824
Orozco v.
S.W.2d
Chen,
484,
(Tex.App.
759
495
S.W.2d
(Tex.1992).
555, 556
S.W.2d
writ).
1988,
existence of
-Austin
does
sufficiency
parties
strained relations between the
reviewing the factual
When
full and
fiduciary’s duty of
jury’s
ver
not lessen the
support
of the evidence
dict,
v. Ken
complete
Montgomery
disclosure.
we examine all of the evidence. Lof
804,
of
at 313. The executrix
Corp.,
nedy,
v. Texas Brine
720 S.W.2d
669 S.W.2d
ton
fiduciary
(Tex.1986);
high
same
853 an estate is held to the
Capon,
805
Hollander v.
in the administration
723,
duties and standards
(TexApp.-Houston [1st
denied).
applicable
estate that are
writ
After consider
decedent’s
Dist.]
Austin &
evidence,
Soc’y
Humane
we
to trustees.
ing
weighing
and
all of the
Bank, 531
County v. Austin Nat’l
only if the evi Travis
will set aside the verdict
(Tex.1975);
weak,
Evans v. First
finding
or the
so S.W.2d
dence is so
Bellville,
946 S.W.2d
Nat’l Bank
great weight
preponder-
against
it in
through Lyn,
acquired
exchange
she
(Tex.App.-Houston [14th Dist.]
O’Brien,
Clark,
denied);
Thomas
Ertel
indemnifying
writ
denied).
(Tex.App.-Waco
overpayment.
writ
this claim
In discussing the
duties of trust-
did
that Harriet
argue
The Lesikars
ees,
Supreme Court has stated
the Texas
by doing
her
so because Jen-
duty
breach
duty
loyalty
prohibits
the trustee’s
Clark, Thomas,
ny,
looking
rather than
him
using
advantage
posi-
of his
Harriet,
merely
who
Lyn
could look to
tion
benefit for
at the
gain
himself
Thomas,
for reim-
“indemnified”
trust and from
him-
expense
placing
of his
If the
overpayment.
bursement of the
self in
where his
any position
self-interest
valid, Harriet
in-
overpayment claim
will
with his
obligations
conflict
obtain for
duty
deed had
not to
Trust,
Slay v. Burnett
Tex.
trustee.
in wells
herself
interest
(1945).
621,187
377, 388
exchange
indemnifying
overpay-
It is a well-settled rule that a trustee
so,
created
doing
ment claim.
she
By
can
profit
make no
out of his trust. The
conflict of
between herself
interest
duty
springs
rule
such cases
from his
estate, which
considers
alone the law
estate,
the interests of
protect
fiduciary duty.
As co-executrix
breach
*15
permit
personal
to
his
not
interest
estate,
estate-creditor;
the
an
she was
to
with
in
duty
in
wise conflict
his
required
pursue
she
the claim
was
to
for
respect.
that
The intention is
provide
to
overpayment on behalf of the estate. As
against any possible selfish interest ex-
wife,
Clark,
Lyn’s
stepped
she
into
Thom-
ercising an influence which can interfere
estate-debtor;
as’s shoes
and became
discharge
duty
with the faithful
of the
valid, she
overpayment
claim was
was
owing
fiduciary
which
in a
capacity.
is
required to
for the
pay
overpay-
the estate
Trust,
Slay
388;
v. Burnett
estate-debtor,
187 S.W.2d at
ment. As an
Harriet had
Soc’y
accord Humane
Austin
Travis
&
aggressively pursue
no incentive
to
Bank,
County
v. Austin Nat’l
overpayment against
claim for
herself
531 S.W.2d
which,
estate-creditor,
at 577.
as an
she was re-
fact,
to
quired
Lyn agreed
to do.
In
do
Generally, there is a presumption
Thomas;
Clark,
indemnify
more than
he
that property acquired during
is
marriage
pur-
Harriet would not
agreed
he and
Wilson,
community property. Wilson v.
claim,
overpayment
sue
Harriet
(1947).
145 Tex.
ultimately
overpayment
dismissed the
liti-
Clark,
acquired
in
Lyn
Because
Thomas’s
gation.
terest in
2 and 5 as community prop
wells
erty
addition,
exchange
overpay
notwithstanding
Lyn
in
for the claim of
In
ment,
Clark,
bargained
in
interest
acquired
Harriet also
interest
Thomas’s
exchange
overpayment
wells 2 and 5 in
to
promising
the claim of
abandon
claim,
overpayment. The Lesikars
that “there is
argue
Lesikars contend
Clark,
assigned
overpayment
interest
Thomas
to no evidence that an actual
was not estate
Lyn
property,
and therefore
existed”
that Harriet dismissed the
Harriet,
by obtaining
overpayment
litigation
good
it
the as
faith.
through
However, Clark,
signment
Lyn,
to
did not breach her fidu
Thomas admitted
no
Clark,
did
ciary duty by acquiring
property
disputed
estate
one
Thomas
not
yet
7A and
agree
violation of the statute. We
own an
in wells 3A and
interest
Clark,
payment
wells. The
Thomas’s interest
wells
and 5 received
for those
belonging
dispute regarding
to
Lesikars’
the validi-
property
not
the estate.
true
estate, however,
that the
ty
owned
claim of
is
evidence
overpayment
7A,
factually
prove
overpayment on wells 3A and
a valu was
insufficient
addition,
amount overpayment.
able
Harriet did more
right.
simply
than
interest;
Clark,
if the claim
acquire
parties
Thomas
all the
acted as
had
value; otherwise, they would not
ex-
in-
rights
have
the decedent’s heirs
changed
bargaining
it or used it as a
tool
terests of the decedent’s creditors. Pat-
acquire
Allen,
(1878);
the interest
wells
and 5.
v.
Tex.
terson
So.
Harriet,
therefore,
a duty
pursue
had
Lewis,
Underwriters
All transactions between a fidu
ciary and his principal
presumptively
are
The Lesikars further contend that when
void; therefore,
fraudulent and
the burden
Harriet dismissed the claim
fiduciary
lies on the
to establish the validi
17,1994,
Thomas on
the claim had
October
ty
any particular
transaction in which he
already been distributed to estate benefi-
Chen,
is involved. Chien v.
ciaries who could make their own choices
exists,
fiduciary relationship
495. Where a
prosecuting
argument
about
it. Their
the burden is on the
to show that
August
that the estate had been closed in
fairly
he acted
and informed the other
of 1994 and therefore the claim was not
party of all
relating
material facts
claim of the estate. The final settlement
*16
Brown,
challenged
Hoggett
transaction.
estate, however,
was not filed until
487 (Tex.App.-Houston
18, 1994,
day
October
one
after Harriet
denied).
1997, pet.
[14th Dist.]
The Lesi-
addition,
dismissed the claim.
In
in that
attempts
presump
kars’
to overcome this
agreement,
parties
settlement
execut-
tion fail.
party
ed a mutual release in which each
As evidence of the fairness of
But that
liability.
released
other from
question,
the actions in
the Lesikars con
party
document stated that each
was re-
tend
Harriet’s actions do not amount
liability
exception
leased
“with the
fiduciary duty
to breach of
or
be
fraud
or
...
obligations
opera-
claims
related to
cause Harriet’s
was to
primary duty
“wind
subsequent
tion of the T.W. Lee Oil Lease
up”
April
the estate.
the trial
August
and the interest of the
gave
lingering
court
directives that
Clark, Thomas,
Shapiro
Winters &
Law
According
estate be closed.
to the Lesi- Firm in the T.W. Lee Oil Lease and debts
kars,
up
only that
winding
required
Har
So,
overpayments relating
and
thereto.”
pay
prop
riet
estate debts and distribute
that claim remained a claim of the estate.
erty. While it is true that the
purpose
co-executor,
duty
it
Regardless,
is
of a
administering
satisfy
estate is
beneficiaries,
claims
prosecute
not
claims of the decedent’s creditors and to
owed to the estate. Tex. Pkob-Code
Ann.
the remainder of the
distribute
estate
233(a).
§
heirs,
among the decedent’s
included with
contend that the
many
duty
the executor’s
duties is the
The Lesikars further
failing
disregard
to collect all claims and debts due the
trial court erred
possession
findings
and to recover
of all
and
in which the
found
estate
fraud.
Lyn
to which its owners
that Harriet and
committed
property
the estate
assignment
insist that the
and dis-
They
have claim or title. See
Tex.
Prob.Code
233(a) (Vernon
§
did not amount to fraud. The court
Supp.2000).
Ad missal
Ann.
when:
both the
instructed the
that fraud occurs
protects
ministration therefore
information,
a. a party
ly
partial
conceals or fails to disclose a
discloses
but fails to
(3)
truth;
knowledge
material fact within the
disclose the whole
where one
that party,
and fails to dis
representation
makes
close new information that makes the ear
b.
party
party
knows
the other
untrue;
representation misleading
lier
or
ignorant
of the fact
does not
and
(4)
and
one
disclo
equal
partial
have an
where
makes
opportunity to discov-
Id.;
truth,
conveys
er the
sure and
a false impression.
(cit
Brown,
Hoggett v.
findings
ignoring
Considering only
all evidence to the
the evidence
contrary,
question
jury’s findings
ignoring
before us is
that favors the
whether
there is more than a
all
competent
contrary,
scintilla of
evidence to the
we find some
evidence to support
jury finding
support
jury’s
evidence to
findings
Lyn
Harriet and
fraud.
committed
Harriet committed fraud on Jen
ny
and the estate
failing to disclose
requires
Fraud
a material mis
dealings
exchanging
overpay
their
false;
representation that was
was either
ment for
Thomas’s interest in wells
*17
known to be false when made or was as
2 and 5.
truth;
serted without knowledge of its
on;
on;
intended to be acted
was relied
The Lesikars contend that
the trial
injury.
and that caused
Formosa Plastics
failing
disregard jury
court
to
erred
Corp.
v.
Eng’rs
USA Presidio
& Contrac
1f,
1h,
5,
findings
by
1g,
which the
tors, Inc.,
(Tex.1998).
41,
960 S.W.2d
47
jury found that Harriet
fidu
breached her
equivalent
Silence is
to a
representa
false
ciary duty
Jenny by,
to
tion where circumstances
a
impose duty to
1f
transferring
operating
the
interest
speak and one deliberately remains silent.
in the T.W. Lee Lease to her husband
Tours,
Inc.,
Spoljaric v. Percival
708
consideration;
without payment of
432,
(Tex.1986). So,
for there
1g transferring
operating
the
interest
fraud,
to be actionable nondisclosure
there
in the T.W. Lee Lease to her husband
duty
must
a
to
be
disclose.
v.
Bradford
without
all
previously disclosing to
Vento,
713,
(Tex.App.-Cor
997 S.W.2d
so;
her
beneficiaries
intention to do
1999,
pus Christi
pet. granted); Hoggett v.
Brown,
secreting
operat
acquired operations by differing of the lease to reach to minds conclusions as deception. the existence of the crucial If fact. Id. support finding, there is no to evidence already
We have
determined there is
then an examination of the entire record
legally
support
sufficient evidence to
the contrary propo-
must demonstrate that
findings
fiduciary duty
of breach of
in find-
sition is
as matter of law.
established
la, lb,
le;
therefore,
le, Id,
ings
we
Clubb,
v.
Seelbach
ing
pursuant
Schlumberger
Surveying
from act done
to the com
aware.
Well
purpose
gives
mon
rise to a cause of Corp. v. Nortex
&
435
Corp.,
Oil
Gas
for civil
v. Tim
conspiracy.
854,
(Tex.1968);
action
Carroll
S.W.2d
857
Pairett v. Gu
Chevrolet, Inc.,
922,
mers
592
925 tierrez,
512,
S.W.2d
(Tex.App.
969 S.W.2d
516
(Tex.1979).
words, recovery is
denied).
In other
1998,pet.
-Austin
instead, it
conspiracy;
not based on the
is
may
by
Conspiracy
established
underlying
based on an
Tilton v.
tort.
circumstantial evidence.
Int’l Bankers
Marshall,
(Tex.1996);
925 S.W.2d
681
Holloway,
Ins. Co. v.
567
368 S.W.2d
Life
(Tex.
Yates,
v.
Fisher
953 S.W.2d
381
Yates,
(Tex.1963); Fisher v.
953 S.W.2d
1997), pet.
cu
App.-Texarkana
per
denied
The
Supreme
379.
Texas
has stat
Court
(Tex.1998).
riam,
Types
S.W.2d
ed, “A conspiracy may be
as well
proven
or
acts on
of torts
unlawful
which a cause
by
conspirators,
by
the acts of the
in
conspiracy may
of action
be based
anything they may say, touching
they
what
fraud,
clude breach of a
and
duty
intended
do.” Int’l Bankers
Ins.
Life
See, e.g., Phippen
as in this case.
v. Deere
Holloway,
(quot
Co. v.
“Rule
that he
8,
Bishop August
returned to
1994. In
challenge
The Lesikars
addition,
Werley
findings
Harriet testified that
had
and the trial
im
court’s
posing
working
advised her on several
to dis-
a constructive trust on the
occasions
overpayment
acquired by Lyn
miss the
it
interest in
2
5
litigation, but was
wells
Clark,
days
not until a few
Thomas. We find there is
Lyn acquired
after
justify
imposition
sufficient evidence to
the interest that Harriet decided to do so.
of a constructive trust.
This is sufficient evidence that Harriet
Clark,
knew of
acquire
the scheme to
A constructive trust is a device
Thomas interest
wells
and 5 in ex-
equity
remedy
wrong.
uses to
See
change for the
overpayment
estate’s
claim.
Bierschwale,
Meadows v.
(Tex.1974);
Cochell,
v.
Cawthon
Although Lyn claims he acted indepen-
1938,
(Tex.Civ.App.-Amarillo
S.W.2d 414
dently of
knowledge
Harriet without
dism’d).
property
writ
When
has been
dismissal, in other
relating
matters
acquired under circumstances where the
estate he acted on Harriet’s behalf and
legal
good
holder of
title should not in
with Harriet’s knowledge.
example,
For
interest,
conscience retain the beneficial
at Harriet’s direction he reviewed the deed
equity will convert the holder into a trust
records and
overpayment
discovered the
81,
Talley Howsley,
ee.
v.
142 Tex.
claim. He also calculated the amount of
(1943). A
S.W.2d 158
classic case for the
the overpayment, on which Harriet relied
imposition
aof
constructive trust is where
Clark,
in filing
against
suit
Thomas for the
party fraudulently
one
something
uses
addition,
overpayment.
Lyn promised,
belonging
acquire
value
to another to
title
agreeing
agreement,”
the “Rule 11
property
for himself. See Lotus
Co.
Oil
Clark,
that in exchange for
Thomas’s inter-
(Tex.Civ.
Spires,
240 S.W.2d
est
wells
not that he would
n.r.e.);
App.-El Paso
writ ref 'd
Col
Clark, Thomas,
simply indemnify
but that
(Tex.Civ.
Griffith,
lins v.
find that knew of the scheme to ac- working assigned title to the interest was quire Lyn, Thomas 2 to legal acquired by Lyn interest wells title was exchange and 5 in overpay- community property the estate’s of himself and Thus, ment claim. Harriet. Harriet also became *21 304 $207,842.69. 2 of an in the est and 5 was We property
holder interest wells in. recovery the assignment. previ- of the are aware that amount of the virtue We have it overpayment might suggest for the ously held that breached Harriet her fidu- n the the recovery valuable than duty dismissing in more ciary overpayment the 5; Clark, in wells 2 howev- working interest and and acquiring claim the Thomas er, we claim for must remember that the working Lyn guilty interest. was likewise or overpayment Jenny’s was not certain. procuring fraud and in deceit the inter- ability the all the al- estate’s recover est. leged was at best. overpayment speculative The judgment final awarded as Moreover, the current market value does not only a constructive trust over give future adequate consideration to Clark, the interest in 2 and Thomas wells which are revenues wells and part overpayment. but also the The wells, generate. In addi- producing will Lesikars the overpayment contend tion, conduct, all of their Harriet through award, in addition to the constructive trust Lyn working acted certainly and as the award, agree. is a windfall. We 2 and interest in wells 5 was more valuable overpayment. than claim for the
When
funds or
one’s
other assets
by a fiduciary
acquire property
are used
overpay
therefore delete the
We
himself,
party
the aggrieved
may
for
seek
uphold
ment
from the
and
judgment
award
property
its value.
D.
itself or
See
trust,
with
imposition of constructive
Ramsey,
& Co.
Sullivan
v.
S.W.
final
held the
modification.
Antonio
(Tex.Civ.App.-San
Clark,
in the
Thomas inter
entire interest
Hunt,
writ); Ingenhuett
15 Tex.Civ.App.
v.
it
trust
distributed
est
constructivé
(1897,
ref'd);
367, holding prevailing par that where the working they acquired the nothing when ty fails to elect between alternative mea in- They argue Lyn interest. damages, court sures of should use Clark, demnified Thomas recovery findings affording greater now, overpayment, claims for the judgment accordingly. and render effect, overpayment still owes the disagree. and the estate. We The amount the awarded as $298,547.00. Lyn’s indemnification to Even if overpayment recoverable overpayment only on the substi- testimony was that the Thomas James Davis’s another, tutes that substitu- working market inter- one debtor present value
305 3, Jenny tion not authorized the by jury was or and found Harriet liable for estate, duty deprives and it a valuable breach of and Harriet and them of Lyn liable for fraud. The Lesikars con- availability recovery asset —the from Clark, fiduciary duty tend that the breach of and Additionally, Thomas. as we have noted, damage ques- fraud theories which the already substituting Lyn and Har- Clark, recovery tion limit place partly predicated riet as debtors in the by are damages proximately Thomas in- caused places Harriet a conflict of They their actions. contend that the sub- relationship terest to the estate. 14 question mission of was error because Damages the court from” Actual used the words “resulted require did find that jury not final judgment indicates that the damages proximately by were caused part trial court awarded overpay- acts, wrongful thereby lessening Jen- ment as actual damages. The Lesikars ny’s proof. burden of We overrule this raise several relating contentions contention. recovery. We have held that because of rule, Jenny the election of remedies cannot Actual damages available for property through recover both the a con- fiduciary duty breach of and fraud include structive trust and claim overpay- general damages special both or direct ment that was acquire proper- used to consequential damages. or See Airborne ty. recovery We have sustained the Enters., Inc., Freight Corp. v. C.R. Lee 847
working
interest
a constructive trust
(Tex.App.-El
S.W.2d
Paso
and will eliminate the
recovery
the over-
denied).
writ
damages compensate
Direct
payment,
making
thus
it unnecessary to
plaintiff
conclusively
for loss that is
discuss the Lesikars’ remaining conten- presumed
to have been foreseen
pertaining
tions
to that recovery.
wrongful
defendant from his
act. Arthur
question
In
jury
awarded
Perry
Andersen & v.
Equip. Corp.,
Co.
1)
additional actual damages for
“costs in-
(Tex.1997).
Consequen
curred in correcting
wrongful
con-
tial
unlike
damages,
damages,
direct
are
2)
duct,”
“failure to pay operational ex-
presumed
to have been foreseen or to
8)
Lease,”
penses on the T.W. Lee
“loss of
necessary
be the
and usual result of the
the value of the
Thomas interest on
Plaintiff
wrong.
plead
prove
must
4)
1994,”
August
“unpaid
estate
separately,
they
prem
them
must be
income tax return preparation expense finding
they proximately
ised on a
year
tax
1994.” The
indicates
wrongful
resulted
conduct of the
court,
that the trial
awarding
rather than
defendant. Arthur Andersen & Co. v.
element, imposed
the third
a constructive
816;
Perry Equip. Corp., 945
trust over the
interest
wells
and 5.
Freight Corp.
Airborne
v. C.R. Lee En
The Lesikars contend that
the form of
ters., Inc.,
Thus,
Form of the
damages. Additionally, the Texas Pattern
Question
asked,
Jury Charges suggest
damage ques
“What sum
that a
any,
cash,
if
if
money,
paid
assign
now in
would tion
dam
asking
direct
fairly and reasonably compensate Jenny
ages resulting from fraud should use the
from,”
Rappeport
Lou Lewis
damages,
question
for her
words “resulted
while a
any,
wrongful
asking
that resulted
such
act
assign consequential
from
Questions
1, 2, 3, 4,
you
have found in
“proximate
5 or
use the
should
words
added).
1, 2,
Comm,
(emphasis
by.”
12?”
questions
ly caused
See
on PatteRN
of a lawsuit are not recovera
prosecution
BAR
TEXAS
CHARGES,
TEX.,
STATE
OF
JURY
110.19,
Turner,
PJC
110.20
Turner v.
Charges
ble.
Jury
Pattern
(1990).
(Tex.1964). But,
in
attorneys’
fees
in prior litigation
party
curred
with a third
court,
objected
In the trial
the Lesikars
*23
in a
suit as
subsequent
are recoverable
14
simply that
contained “no is-
question
Turner,
damages.1
actual
See Turner v.
proximate
appeal, they
cause.”
sues
On
234;
14
question
do not contend that
asks
385 S.W.2d at
Standard Fire Ins. Co.
(Tex.
or
consequential
to award special
81,
Stephenson,
v.
963 S.W.2d
90
Instead, they
that
damages.
argue simply
1997,
App.-Beaumont
pet.);
no
&
Crum
fraud
duty
the breach of
and
Forster,
Co.,
Inc. v. Monsanto
887 S.W.2d
require
finding
theories
a
that
the dam-
(Tex.
1994,
103,
App.-Texarkana
129
ac-
ages
proximately
by
were
caused
their
w.r.m.);
judgm’t vacated
Nationwide Mut.
objection
Assuming
tions.
Lesikars’
Holmes,
335,
v.
Ins. Co.
842 S.W.2d
340-41
error,
argument
their
is incor-
preserved
denied);
(Tex.App.-San Antonio
writ
rect, and we
the contention.
overrule
Ball,
Energy,
Baja
Inc. v.
standard for reasonableness testimony may in cases where uncontroverted be taken as attorneys’ sought fees are Powell, damages. general as We note that in in true as a matter of law. The rule denying recovery attorneys’ testimony fees be- that the of an wit- is interested
ness, contradicted, bills, though no does that the attorneys’ We conclude than expert more raise a fact issue to be deter the absence as to testimony fees, by Ragsdale mined jury. Progres necessity reasonableness and fees League, sive Voters insufficient evidence that were (Tex.1990); necessary. reasonable Disbrow v. We therefore Healey, Jenny’s reform the re- delete (Tex.App.-Houston Dist.] [1st $12,000.00 However, covery of incurred in pet.). costs there is an ex correcting wrongful conduct. ception to the rule: expert There cases in which Unpaid Expenses Operational testimony to the value an attor- 14(4), question recovered ney’s so free services is from inconsis- $26,122.00 “unpaid as actual tencies, so un- thoroughly supported operational the amount she evidence, expenses,” disputed clearly facts and so alleged the owed from 1996 Lesikars knowledge in accord experi- with through proportionate 1998 for their share ence which the must had and have lease, which expenses operating with the information them obtained Jenny sought under theories of reimburse trial, on the court would be *25 enrichment, ment, unjust quantum and in justified testimony that as accepting that meruit. Lesikars contend the The conclusive.... disregard trial court in to refusing erred Paving Lofstedt, Co. v. 144 Tex. Gulf operat jury’s unpaid the these award for (1945). Thus, 188 S.W.2d 161 they is imma ing expenses, contend which applies, in exception proving the context of theories of predicating terial the because fees, attorneys’ only compe- reasonable to fraud, duty, recovery, fiduciary of breach attorneys’ evidence fees. tent of reasonable not establish obli conspiracy do testified, Only Jenny only and she testified obli gation expenses, to but such pay the the attorneys’ that Austin were services hold gation in contract. that sounds We reasonable. the point has been waived. Jenny authority has cited no A disregard jury to find motion we why apply should not in this case may ing properly granted be pertaining established of law to the rules finding has in or support no the evidence fees, attorneys’ and we reasonableness of Eagle issue is Spencer immaterial. to, no because perceive simply reason not (Tex. Am., Ins. 876 154 Star Co. S.W.2d attorneys’ fees here been award have 1994). argue ques The that the Lesikars Thus, actual in damages. ed as cases expenses regarding unpaid operating tion attorneys’ pres where fees incurred in the not should have been submitted because it litigation sought, ent are while an attor improper damages under is an measure ney’s testimony as to reasonableness recovery the theories of This submitted. issue, proof fees is conclusive of that argument objection an amounts to testimony generally required. such is charge, which the Lesikars must have Paving Lofstedt, Co. v. Gulf court, in made the trial or it waived. 161; Nguyen Ngoc Giao v. Smith & Lesi- See P. 274. Because the (Tex. Crv. Lamm, P.C., Tex.R. question failed writ). object kars on this App.-Houston Dist.] [1st they ground, alleged have waived the er Generally, the issue of reasonableness ror. See id. necessity attorneys’ expert fees requires
testimony; an as to rea attorney testifies Return Unpaid Estate Income Tax sonableness, attorney testifying and the Expenses Preparation designated as an before he expert must be 1(e), found Young question jury See E.F. Hutton & v. In testifies. Co. (Tex.1987). blood, fiduciary duty by Harriet her breached improperly spending Jenny by deception intentionally funds that interfered deposited Werley agreement. trust with for the with on operating Based purpose paying questions through Harriet’s share of ac- the conduct it found in for counting jury costs the estate’s income tax awarded actual damages. preparation conduct, return jury 1994. Based on Based on that same finding, 14(5), $2,000,000.00 in question in punitive damages awarded $1,750.00 awarded for against Lyn. Harriet’s Based on the conduct it found (breach “unpaid 1, 3, estate income prepa- Questions tax return or 4 fraud, expense year ration for tax duty, conspiracy), 1994.” This represents $500,000.00 figure Harriet’s one-half share awarded in punitive damages Harriet, accounting Jenny, of the total costs which which the trial court re- estate, $200,000.00. ultimately behalf of the paid duced to con- Lesikars the accountants. The Lesikars concede tend awarding that the trial court erred in 1) Werley the funds any punitive damages held trust because there are payment of accounting Harriet’s share of defects in the actual damages awards and accountants, paid costs were not recovery underlying theories of 2) they awards, but contend that punitive damages Harriet cannot be Texas held liable for the failure to them. pay procedures assessing punitive damages They argue part process the funds are violate due protections. trust, being alternative,
still held in and that there is they punitive contend that the no evidence that Harriet spent the funds. awards are excessive.
We sustain the point ground. on this Supporting Defective Basis While there evidence Wer- *26 Damages Punitive ley and obligated Harriet were pay the The Lesikars contend that there must funds to the accountants but failed to do an damages be award of actual in tort so, agree we that there is no evidence that punitive before an award of damages is spent Harriet the point- funds. has proper, and further that the actual dam evidence, ed out no and we have found ages awards here not in were awarded none, showing that actually spent Harriet tort, punitive so we must reverse the dam in funds held trust. only question ages Citing awards. Lovelace v. Sabine on which the actual damages award for Consol., Inc., (Tex. 654-55
unpaid income tax preparation return ex- App.-Houston writ de [14th Dist.] penses could question have been based was nied), they also contend that there be must 1(e), which was a pointed question, asking finding liability theory of on a of recov specifically whether Harriet breached her ery supports punitive damages, fiduciary duty “in spending deposit- funds further, the punitive damages because agent ed with her in payment trust for of question disjunctive, was asked in the we professional accounting costs of the estate” punitive damages must reverse the awards added). (emphasis Because we find no recovery one of the theories of in evidence that actually spent Harriet questions through support 1 5 or 12 cannot funds, we reform to delete punitive damages. overrule con We these $1,750.00 Jenny’s recovery of unpaid tentions. estate income tax preparation expenses. The Lesikars first contend Damages Punitive damages none of the actual awards was tort, In 1 findings through 5 and in punitive awarded which defeats the fiduciary However, found Harriet breached her damages recovery. trial duty, that both Harriet and commit- granted Jenny’s court plea impose engaged conspiracy, ted fraud and in a trust 2 constructive on interest wells Lyn acquired operation wrongfully of lease and 5 that the Lesikars ac- 310 ”
quired.
disagree
ages.’
Longview
We
that a defect in the
See Nabours
Sav. &
Ass’n,
damages
(quoting
actual
awards would defeat the Loan
An cannot be held accountable Life Holloway, In 583-84. for the failure of an appellee to secure Supreme suggested willful and Court separate jury findings upon which an presumed fraudulent acts are when the accurate could be based. Nor fiduciary, Holloway, gains as addi can an appellate imply finding court tional benefit for himself of his as result tort, actual damages because a court In breach. Texas Bank & Trust Co. v. appeals cannot make original findings Moore, (Tex.1980), fact; it can “unfind” For facts. Supreme held exemplary Court dam reasons, foregoing we hold that the ages are proper self-dealing when trial court erred in awarding punitive Where, here, fiduciary has occurred. damages indepen- where there was no gains in fact a benefit breach finding dent of actual damages in tort. ing fiduciary duty, her willful and fraudu (citations omitted). Id. at 655 Our case is fact, lent presumed. acts Lovelace, somewhat different from because jury found that Harriet her fidu breached here, the court awarded a constructive ciary duty and committed fraud. There trust for the conduct it in questions found amounting was no evidence of conduct 1 through 5 or which amounts to actual apart to fraud from the conduct found to damages, which in turn support punitive fiduciary duty. be a breach of Harriet’s However, damages. agree puni- we Thus, underlying the same conduct tive may not be sustained where finding of breach also amounted to fraud. one of the recovery theories of on which punitive damages were disjunctively Charge Omitted Element in the support awarded does not punitive dam- Question 1 asked whether Harriet ages. fiduciary duty breached her in various re *28 A defendant’s intentional spects. question whether Har No asked fiduciary duty breach of is a tort for which intentionally, willfully, riet acted or fraudu a plaintiff may punitive recover damages. lently, or an gain whether she intended See Int’l Bankers Ins. Co. v. Hollo Life additional In final benefit herself. its 583-84; way, 368 S.W.2d at Hawthorne v. judgment, supplied the trial court the al Guenther, 936; 917 S.W.2d at InterFirst element, leged finding omitted not Dallas, Risser, Bank N.A. v. 739 S.W.2d engaged Harriet in conduct in that breach 907 (Tex.App.-Texarkana no duty of her but also that she did writ). it a general While is rule that Tex willfully maliciously. so Even if a as courts allow the recovery punitive of question required on intent were in this defendant, damages where the in commit case, preserve the Lesikars have failed to tort, ting willfully, maliciously, a acted or the error. fraudulently, punitive damages where are fiduciary duty damages awarded for breach of the a jury Where awards actual charge motives of the defendant and wheth- on a that omits an element based recovery, a
necessary
ground
necessary
heightened
sustain
of
to sustain a
damage
McKee,
may
trial
a
the
court
either file
-written award was omitted.
In
the Su-
element,
the
finding regarding
missing
preme
support
or
Court cited Holland in
of
judgment
may
If the
that
may render
without one.
its statement
a trial court
not
finding,
does not
findings
trial court
file a written
make
of fact
the
where
omitted
element
an independent ground
the omitted
is deemed found
issue is
of recov-
support
long
ery.
of the
so
as no
In Holland the
Antonio Court
San
made
that
objection
requested, Appeals
finding
was
or issue
held
a
that the con-
supports
finding.
the evidence
a
was either
or willfully
such
version
malicious
279;
done,
P.
Farm
recovery
punitive
See Tex.R. Civ.
State
essential to
a
Life
Beaston,
issue,
Ins. Co. v.
damages,
plaintiffs
S.W.2d
was
that
(Tex.1995).
the issue was
in the absence of
waived
a
request by
plaintiff
for submission of
Lesikars
the trial
The
contend
Lesesne,
See
v.
issue.
Holland
finding
court’s
and malice
willfulness
at 865.
S.W.2d
improper
was
because of the Texas Su
preme
holding
Supreme
Court’s
in Martin v. McKee
citation
Despite
Court’s
(Tex.1984).
Realtors, Inc.,
Holland,
holdings
more
of the
recent
Su
case,
In
suggest
the trial
awarded dis
that the trial court
preme
court
Court
cretionary damages under
the DTPA
a
intent when
finding
make
omitted,
jury finding
puni
it
on
plaintiffs
where
obtained a
issue on
is
if an issue
In
“knowingly,”
damages
that the defendants
tive
State Farm
acted
submitted.
Beaston,
recovery
for the
requirement
of discretion
Ins. Co.
907 S.W.2d
Life
DTPA,
ary damages under
where
the trial
Supreme
but
Court stated
they
request
court,
jury
expressly excluding
failed
issue
dis
award of
damages.
cretionary
plaintiff-appel-
anguish damages
jury
mental
where
that the
“knowingly”
finding
lees contended
since the
awarded them without
de
it
jury,
knowingly,
had been
fendant acted
must
have
issue
submitted
under
Pro
proper
knowingly,
was
Texas Rule of Civil
found that the
acted
defendant
cedure 279 for the
dam
could have
punitive
although
issue of
the trial court
so
ages
sup
to have been
found in
Rule
In Ramos
Fri
deemed
found under
279.
(Tex.
Inc.,
port
discretionary damages
to-Lay,
award.
1990),
In rejecting
argument,
Supreme
although
the court
held
case,
court
appeals
punitive damages despite
Court noted a
Hol
awarded
(Tex.Civ.
Lesesne, 350
finding
acting
land v.
that the
his
appellee
n.r.e.),
would
App.-San
finding
Antonio
Writ ref'd
be
managerial capacity, the
objec
punitive
held to be
found
there was
damages
wherein
were
deemed
since
addition,
theory
of an
Court of
independent
the nature
tion.
the Beaumont
pre
recovery
Appeals squarely
and could not
awarded absent
the issue
addressed
punitive
The court then
here and
that where
special issue thereon.
sented
held
plaintiff
that a
to recover
were
for breach of fidu
seeking
damages
held
awarded
intent,
DTPA
self-
discretionary damages
ciary duty,
but
issue of
under
support
malice
request
dealing,
necessary
must
issue on such
*29
omitted,
was
recovery
to avoid waiver of
of those
award was
defendant
re
Realtors,
object
Martin
the omission under
damages.
quired
See
v. McKee
so,
Inc.,
279,
313 case, (1994); punitive Corp. the submission of the dam TXO Prod. v. Alliance Res. 443, 2711, ages question along with the submission of 125 Corp., 509 U.S. 113 S.Ct. (1993); fiduciary duty the issue of breach of re L.Ed.2d 366 Pac. Mut. Ins. Life 1, 1032, quired object 111 Haslip, the Lesikars to to the omit Co. v. 499 U.S. S.Ct. 279; (1991). ted P. issue of intent. See Tex.R. Crv. L.Ed.2d 1 The recent 113 Court’s Beaston, however, Farm State Ins. Co. v. 907 do not opinions, provide specific Life 437; Inc., at v. Frito-Lay, process guidelines S.W.2d Ramos due for lower courts to 668; Moriel, 784 at Transp. S.W.2d Hawthorne v. Ins. 879 Guen follow. Co. ther, (Tex.1994). Instead, 917 at S.W.2d 936. Pursuant to Rule 12 n. 27 ground recovery where a consists simply has evaluated the consti- Court element, of more than one and one or tutionality punitive damages more awards on necessarily basis, essential elements referable case-by-case holding that certain thereto by are submitted and found procedures given states’ case either omitted, jury, but one element is comport process. ele violate or with due See may ment be found the court or Oberg, Honda Co. v. 512 at Motor U.S. deemed found in support (holding 2331 that Oregon’s S.Ct. opposing party object does not to its procedure, which failed to provide thereon, request omission or an issue and post-verdict puni- review of the amount of factually there is unconstitutional); sufficient damages, evidence tive TXO support the omitted finding. Crv. Corp. Corp., Prod. v. Alliance Res. Tex.R.
P. 279. The
object
Lesikars failed to
(upholding
U.S. at
Due Process
Haslip,
U.S.
S.Ct. 1032.
The Lesikars contend that Texas
Moriel,
Supreme
The
Texas
Court
procedures
punitive
for reviewing
damages
retrial,
remanding the case for
considered
violate
process
constitutional due
protec
it
procedural
advisable to articulate
stan-
tions,
(1)
specifically because
Texas trial
dards for the trial
applied
courts to be
required
courts are not
to affirmatively
all subsequent punitive damages cases in
justify
punitive
awards on the record
Moriel,
Texas.
Transp.
See
Ins. Co. v.
(2)
Supreme
the Texas
Court does not S.W.2d at 26. The Moriel case contains
consider
the exeessiveness of punitive
our
procedural
current
standards. Be-
awards,
damage
but considers only wheth
it
“bright
guidance”
cause had no
line
appeals
er courts of
applied
erroneous
Court,
Supreme
compared
the court
standard of review. We overrule this con
procedures
procedures
Texas
exam-
tention.
ined
Supreme
Haslip
Court
Supreme
United States
Court has
Production.
The court concluded
TXO
process
held that due
imposes
procedures
compare
constraints
that our
did not
favor-
punitive
on the size of
damages
ably.
recognized
disparate
awards
It
as
that Tex-
courts,
courts,
procedures
and on the
under
trial
are not
puni-
which
unlike other
tive
are awarded and reviewed.
required to scrutinize each award and set
*30
See Honda
v. Oberg,
refusing
Motor Co.
512 U.S.
forth reasons on the record for
to
415,
2331,
addition,
114
In
our
S.Ct.
314 Court, in
Supreme unlike its ries. Ellis Bank counterparts County See State v. states, Keever, 478, (Tex.1995); is precluded reviewing other 915 S.W.2d 479 Kraus, v. supporting punitive the evidence a dam- Alamo Nat’l Bank 616 S.W.2d 908, (Tex.1981). However, signifi- award for it ages sufficiency. factual See 910 is Moriel, Transp. Ins. Co. 879 at cant also Supreme v. S.W.2d that the Texas Court jurisdiction punitive 28. has to evaluate dam- ages light in of constitutional sub- awards Production, In Supreme TXO the Court claims, in this process stantive due as case. analyzed punitive damages a case where Owens-Coming Corp. Fiberglas See v. trial the court had not articulated on the 35, (Tex.1998). Malone, 972 S.W.2d 45 denying record its reasons for motions for judgment notwithstanding disparities bring the To the and verdict address in line Although providing for remittitur. the Court stated Texas ade procedure always safeguards helpful quate protect that it is for trial procedural courts awards, explain rulings, the for their it held excessive the Mor- grossly basis changes: this failure not a iel two following that was constitutional court made Corp. requirement, upon request, See Prod. It adopted violation. TXO v. Alli 465, Corp., damage ance Res. at trials punitive 509 U.S. 113 S.Ct. of bifurcated cases, appeals, 2711. The court also held that the Moriel addressed court argument. recog sufficiency the Lesikars’ first It when re conducting factual award, that other view jurisdictions expressly punitive damages nized re of a must why quire explaining the trial court to articulate rea detail evidence its the relevant for or does not refusing punitive supports sons to disturb evidence either award, Co. v. damages adopting support Transp. after award. Ins. most them addition, Moriel, In Haslip. it observed that sev at 31. Several courts 879 S.W.2d appellate reviewing pu appeals heightened eral federal courts have held that reviewing pu damages nitive have Haslip post-judgment procedure awards since trial Mor- damages remanded the to the court with nitive awards mandated cases iel process. instructions articulate reasons satisfies due See Convalescent Servs., Schultz, 731, Ins. v. upholding Transp. award. See Inc. Moriel, But, 1996, v. at Co. 879 S.W.2d 32. writ (Tex.App.-Houston [14th Dist.] I-Gotcha, Mclnnis, denied); requirement, rather than Inc. make this v. findings (Tex.App.-Fort court noted would obvi S.W.2d Worth such 844-45 denied). Moriel, helpful ously urged they writ Since held practicable. be made the extent has Supreme should United State Court for re procedures at 33. Oregon’s Id. post-verdict pro due damages violated viewing punitive regard argument to the- that our With Oberg, cess. Honda Motor Co. See Supreme not consider the ex- Court does L.Ed.2d 336. U.S. 114 S.Ct. awards, damages cessiveness of punitive however, procedure Oregon, puni- the Moriel court that while noted our significantly procedure dissimilar tive awards are scrutinized less Texas, would holding in that case and the closely appeal highest than court procedures find that we Texas require states, does process in other not re- due See Motor Co. unconstitutional. Honda two levels review. See quire appellate Oberg, 512 U.S. S.Ct. Moriel, Transp. Ins. Co. v. 336; Servs., L.Ed.2d see also Convalescent question note 29. We of exces- Schultz, Inc. v. at 740. factual purely inquiry siveness is Supreme Supreme juris- light Court’s of the United States beyond Texas jurisdiction Supreme holdings, and that court has Texas diction Court’s Moriel, opinion to determine whether courts Court’s reasoned appeals, we inqui- of other courts of properly review such factual decisions appeals *31 procedures Assessing hold that current Texas do not the criteria set out case, process protec- offend constitutional due the Kraus we find $2,000,000.00 punitive damages award tions.
against Lyn
experi
is excessive. The loss
Excessiveness
enced
the estate and
because of
financial,
Lyn’s
purely
acts was
and
only
The Lesikars contend not
that the
it, they
fully
we reform
will
judgment as
trial court erred in awarding punitive dam-
recover their financial loss and more. Un
ages,
punitive
but also that the
damages
personal injury
monetary
like
cases where
awards are excessive. We have overruled
damages
replace
cannot
life or re
lost
contention,
their first
agree
but we
body,
recovery
store a maimed
the actual
punitive damages
are
awards
exces-
injured parties
this case will make the
sive.
completely whole.
no mental
There was
damages
Punitive
must be rea
abuse,
insult,
physical
personal outrage,
or
sonably proportional
damages,
to actual
opprobrious
Lyn’s
conduct.
acts were
although there can be no set ratio between
injure
not
anyone’s personal
calculated to
punitive damages
actual and
that will be
sensibilities,
Jenny certainly
and
had not
considered reasonable.
InterFirst Bank
fact,
reposed any personal
In
Lyn.
trust
Dallas,
Risser,
N.A. v.
parties
the extent
judgment
Spe
contains additional errors.
which such conduct
a public
offends
sense
cifically, they complain of the trial court’s
Kraus,
justice.
Alamo Nat’l Bank v.
injunction
granting
temporary
order
910.
being operator
on the
keeping
In order to assess the reasonable
lease,
part
T.W. Lee
as well as that
award,
ness of a punitive damages
we are
G,
L
Jenny,
that confirms &
required to detail the relevant evidence Fay
operators
as the current
of the lease.
explain why
sup
the evidence either
1994, Harriet,
ports or
support
punitive
August
capac-
does not
her
damages award.
County
ity
co-independent
Ellis
State Bank
executrix of the
Keever,
798;
estate,
Transp.
888 S.W.2d at
Ins. Lewis
submitted a “P-4” form to
Moriel,
seeking
Co.
Section 85.241 of the Natural Re- authority to circumvent court was without procedure sources sets out the Code re authority, and we rul- Railroad appealing from Railroad Commission Commission ing. part form to delete that provides: That section recovery. Jenny’s Any person interested who is affected this by the conservation laws of state or relating orders of the commission to oil FEES ATTORNEYS’ gas gas, or or and the waste of oil fees law or in Jenny sought attorneys’ who laws is dissatisfied with these equity, pursuant to Sections 37.001 and/or orders, may or file com- suit of the Texas Civil Practice 38.001 its in a mission or members court Remedies Code. & Tex. Prac. Rem.Code Civ. competent jurisdiction County in Travis (Vernon 1997). 37.001, §§ 38.001 Ann. or validity of the law order. test Judg- Declaratory is Section 37.001 (Vernon § 85.241 Tex. Nat. Res.Code Ann. Act, 38.001 allows ments Section 1993). Jenny has pro- not addressed this attorneys’ fees for various recovery of or pro- vision stated she followed this The trial submitted a broad claims. court Instead, sought temporary cedure. she jury: attorney-fee question to the “What Lyn in injunction against the trial court necessary a reasonable fee for the services below, sought ruling per- to have the attorney Rappeport’s Lou Lewis col-
manently set aside. These amount to case, cents?” stated dollars and lateral attacks. $253,444.00. Lesi- answered The Jenny’s kars claim judg A collateral attack contend while support attor- declaratory judgment its will attempt binding ment is an to avoid fees, neys’ remaining her tort claims will not instituted for the proceeding force Thus, the court correcting, modifying, they not. contend purpose of vacat- in awarding Furthermore, erred attorneys’ fees because although the Lesikars rec Jenny failed to segregate among her fees ognize in their legally brief that without her proof various claims or offer that her sufficient evidence that the in claims are sufficiently claims are *33 interrelated or so terrelated a of finding the amount of incapable segregation that she should immaterial, Jenny’s fees is the Lesikars excused from segregating Jenny them. object failed to to the submission of the contends that the Lesikars have waived attorney-fee question. broad As a result alleged error. The respond, Lesikars failures, they these have waived their arguing they preserved have error in this complaint regard. objec Where no appellate because their position is not that tion is made to the failure to segregate Jenny segregate, failed to but there is fees, attorneys’ either at the time evidence legally insufficient evidence that her claims attorneys’ fees presented is or to the interrelated, are which they pre- have Int’l, charge, the error is waived. Green served in their post-verdict motions. We Solis, (Tex. 384, Inc. v. 951 S.W.2d reject the Lesikars’ distinction and hold 1997); v. Hruska First State Bank De that the error has been waived. anville, 783, (Tex.1988); 747 S.W.2d rule, As a general a party Sterling, Stewart Title Guar. Co. v. seeking to recover attorneys’ fees carries at 11 (stating S.W.2d ap remand is proof burden of to establish that he is propriate refuses, a party “[i]f over objec entitled to them. Stewart Title Co. Guar. tion, to offer evidence segregating attor (Tex.1991). Sterling, v. 822 S.W.2d ney’s among fees parties, various claims or plaintiff When a seeks to recover attor appellate and an court determines that neys’ in fees a case in which he asserts segregation required” (emphasis add claims, multiple at least one of which sup ed), providing objection that an ports an award of fees and at least one of failure of the trial court to allocate or not, which does as the Lesikars contend is segregate the jury charge fees here, the case plaintiff must offer evi error); preserve sufficient to see also dence segregating attorneys’ among fees his various claims. Civ. P. 274. See id. at 10-11. An Tex.R. exception to duty to segregate arises The say argument Lesikars their is not attorneys’
when the
fees are in connection
that Jenny
segregate
to
but that she
failed
with
arising
claims
out of the same trans
proof
failed to offer
that her claims are
action and are so interrelated that
their
interrelated,
they may
which
assert
depends
award or denial
essentially on the
post-verdict
arguments
motions. These
circumstance,
same facts.
In that
segre
are effectively the same.
rule requir
The
gation
11;
required.
is not
Id. at
Flint &
ing segregation and the exception requir
Steel,
v.
Assocs.
Intercontinental Pipe &
Inc.,
proof
ing
that the claims are
interrelated
S.W.2d
624-25 (Tex.App.-
denied).
Thus,
Dallas
writ
have
plaintiff
“corollary”
been called
rules. See
must either segregate
among
his fees
his
Supply
Linen &
Co. W.P.
4M
Unif.
claims or establish that his claims are suf
Co.,
(Tex.
Ballard &
793 S.W.2d
ficiently interrelated.
App.-Houston [1st Dist.]
writ de
nied); Flint &
v. Intercontinental
Assocs.
Harris,
Jenny’s attorney, Jerry
Steel, Inc.,
Pipe &
Where has error, may disregard a trial court Werley engaged contends that jury finding unsupported it is with Harriet to conspiracy de- evidence or it is immaterial. Green of her fraud her interest reimbursement Int'l, Solis, Inc. v. at 389-90 overpayment for the Thomas. Eagle Ins. Co. (citing Spencer Star Werley conspired also contends that She Am,., 157); v. Aran Norrell breaching with Harriet assist her her 1, 1 County Navigation No. sas Dist. duties estate. We have set (Tex.App.-Corpus conspiracy 303-04 out the elements civil above. (1) (2) dism’d). They persons; are: two or more 1999, pet. Christi *34 (3) object accomplished; meeting to be a $253,444.00 attorneys’ fees. awarded in (4) minds; unlawful, one or more overt finding sup This was and was material (5) acts; proximate and as the ported testimony uncontroverted Co., Massey result. Armco 652 Steel We, therefore, Jenny’s attorney. overrule 933. S.W.2d at point Jenny the Lesikars’ and hold and summary recover these fees. In his motion on may attorneys’ judgment (1) an Werley contends that attor- appeal, (2) client; WeRley Judgment his ney conspire cannot with he The SummaRY an underlying did not commit fraudulent 1994, Jenny pleadings In amended her based; which could be conspiracy act on Werley as a as- to add counter-defendant (3) commit an Lyn and Harriet did not against Werley for civil con- serting claims underlying fraud or breach and spiracy, negligent misrepresentation, and, therefore, duty not have con- could Werley moved fiduciary duty. breach of with him to in those activi- spired engage summary judgment, the trial for which (4) ties; not suffer Jenny did a cross- granted. Jenny court has filed damage. ren- appeal complaining the trial court’s first Werley’s con Regarding summary judgment adverse dition of the tention, attorney be we hold that an Werley. against on her counterclaims if he conspiracy liable for to defraud know summary on a prevail To motion a with defraud third ingly agrees others to a movant establish that judgment, must II, Terrace Likover v. person. Sunflower genuine material fact there is no issue of Ltd., 468, (Tex.App.-Hous judgment is as a and that he entitled to writ). Regarding [1st Dist.] ton 166a(c). of law. Tex.R. P. matter Civ. contention, Werley if did his second even Summary judgment for a defendant is act, could a he not commit fraudulent ele negates when he at least one proper liable for assist the Lesikars conspiring to of each of the theories plaintiffs ment Bernstein v. perpetrating in their fraud. conclusively estab recovery, pleads Ass’n, 850 S.W.2d Portland Sav. & Loan element of de lishes each an affirmative n. 12 Christi (Tex.App.-Corpus Spectrum, Inc. v. Mar fense. Science denied), on other writ overr. (Tex.1997). tinez, 941 S.W.2d Casteel, 22 grounds, Crown Ins. Co. v. Life we reviewing summary judgment, When (Tex.2000). Regarding his true all evidence favorable to take as contention, already held that we have third Rhone-Poulenc, Steel, Inc. v. nonmovant. support sufficient there is evidence (Tex.1999). in We Harriet com jury’s findings Lyn and re fraud. dulge every reasonable inference mitted favor. any doubt the nonmovant’s
solve Negligent Fiduciary Duty Breach of the bur appeal, the movant still bears On Misrepresentation showing genuine that there is no den of Werley negli enti Jenny fact and that he is issue material contends facts misrepresented material gently of law. judgment as matter tled assign- the terms of misrepresented misrepresentations her and that those Martin, attorney. McCamish, her ment to damaged her. Inter Appling v. F.E.
Brown & Loeffler
true, we
assertions as
Taking all of these
(Tex.1999),
ests,
the Texas
might received in settlement Conclusion overpayment claim stated, modify For the reasons we predicates Thomas.” She the imposition trial duty Harriet, court’s to delete Werley’s duty of a $12,000.00 duty recovery as Rappeport’s Harriet’s co-executrix. as $1,750.00 costs and awarded admits, however, Jenny candidly As *36 unpaid in accounting expenses answer to are Texas holding there cases that a third 14(1) 14(4), questions to delete the party does not of in have cause action recovery Jenny “overpayment,” of by the negligence against attorney an when there $298,547.00according jury’s to answer the See, lack privity. e.g., is a of Thompson 10(a). question modify We also the Elkins, Vinson & judgment the to correct constructive trust (Tex.App.-Houston Dist.] writ [1st all of recovery to cover the Thomas denied). for an argues She extension of working interest in 2 and rather wells law under this the the facts of case be judgment than the interest shown in the as the symmetry cause of between each co- it now modify judg- stands. We also the responsibilities. executrix’s duties injunction ment the to delete award of arises, contends, Privity she because against Lyn regard operations with to the estate, prosecuting claim for the the lease, the provision of and to eliminate the attorney has the duty same he would have the Jenny the judgment restoring if employed the other co-executrix to position operator. modify further We what is to the recover owed estate. She $38,245.22 judgment Jenny to award that, in absence of privi contends prejudgment interest rather than the ty, protect one co-executrix cannot herself judgment. amount contained in the We fraud of from the the other. judgment will affirm the as modified making however, this argument, Jen- Jenny, days the date of within fifteen respective ny blurs the roles of an execu- opinion, our files remittitur attorney. trix and her The executrix’s $1,400,000.00 from the punitive duty prosecute is to claims on behalf If Jen- against awarded her Lesikar. estate; duty is to attorney’s give remittitur, ny judg- fails to file such candid advice. legal executrix The execu- reversed, will ment the cause will be trix is hable for duties fiduciary breach be remanded for a new trial. beneficiaries; attorney is liable for breach of duties to the execu- Concurring opinion by
trix.
GRANT.
Justice
the Texas
GRANT, Justice,
precedent,
basis of
concurring.
On the
BEN Z.
adopt
ap-
declined to
Supreme Court
Legislature
I would recommend that
study.
by this
proach recommended
Code,
Probate
revisit Section 240 of the
have
do not
Because most beneficiaries
Executors or Administrators.
Joint
Tex.
attor-
rely on the
attorney and
them own
(Vernon 1980).
§
I
Ann.
Prob.Code
it is
estate to see that
handling the
ney
strongly suspect that most
would
law, I
according
properly administrated
in a
joint
are named
time when
executors
Supreme Court
that the
would recommend
will,
joint
intends that these
the testator
legal obligation
changing
consider
other.
executors will be a check on each
the recommendations
accordance with
indicates,
case
it does not work
As this
report.
way.
provides
Section 240
(or administrators)
in-
may act
executors
REHEARING
ON MOTION FOR
creates a
dependently of each other. This
CORNELIUS, Chief Justice.
hydra-headed administration of the estate
guarantee
in which there is no
that there
Werley and the law firm of
Gary
S.
effort,
duplication
will
be a
as well
Werley, L.L.P.
Payne, Williams &
Bishop,
being
attorney
as each
able to hire an
a motion
(collectively, Werley) have filed
rehearing
they
in which
contend
paid
out of the estate which would for
(The
to reflect
clarify
judgment
our
we should
attorneys’
result in double
fees.
are assessed
appeal
that no costs on
requires
exception under Section
Werley.
judgment
the case
adminis-
signatures
of all executors or
reads,
that the
“It is further ORDERED
estate.)
conveyance
trators is in the
of real
pay one half of the costs
parties each
I would recommend Section 240 be amend-
appeal.”
reason of this
We
incurred
joint
require
ed to
executors
equally be-
intended that costs be divided
jointly
administrators act
on all matters
there-
Jenny and the Lesikars. We
tween
involving the estate.
provide that
modify
fore
our
My next concern is
the construction of
each
and the Lesikars
Rappeport
*37
attorney
by
the law that the
retained
an
by rea-
half of the costs incurred
pay one
repre
executor or administrator does not
appeal.
son of this
estate,
represents
sent the
but rather
also filed a motion
The Lesikars have
executor or administrator. See Huie v.
we
they
in which
contend
rehearing
DeShazo,
claims were required court or that the trial attorneys’ segregate charge the Jenny’s overrule among fees claims. We rehearing. motion for Lesikars’ MOLINA, Appellant, Musick Summer MOORE, Appellee. D. Randall No. 07-98-0364-CV. Texas, of Appeals of Court Amarillo. Sept. 2000.