Case Information

*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 2/12/2015 8:29:45 PM DEBBIE AUTREY Clerk *1 ACCEPTED 06-14-00020-cv SIXTH COURT OF APPEALS TEXARKANA, TEXAS 2/12/2015 8:29:45 PM DEBBIE AUTREY CLERK

No. 06-14-00020-CV

________________________________________________________________

In the Court of Appeals of Texas Sixth District

Texarkana, Texas

________________________________________________________________

W ENDOLYN M ESSNER , D EPENDENT A DMINISTRATOR Appellant

v. M ARK L. B OON , B OON S HAVER E CHOLS C OLEMAN & G OOLSBY , P.L.L.C., Appellees

________________________________________________________________

On Appeal from the County Court at Law of Rusk County, Texas Hon. Chad Wes Dean

Trial Court Cause No. 02-043 A ________________________________________________________________

A PPELLANT ’ S M OTION FOR R EHEARING ________________________________________________________________

P AUL W. T URNER Texas Bar No. 24037619 400 S. Alamo, Suite A Marshall, Texas 75670 (903) 935-0135 (phone) (903) 935-0235 (facsimile) pturner@thelawofficeofpwt.com C OUNSEL FOR A PPELLANT *2 T ABLE OF C ONTENTS

Cover ....................................................................................................................... 1

Table of Contents ..................................................................................................... 2

Index of Authorities ................................................................................................. 3

Issues Presented for Review .................................................................................... 4

Misstatements of Facts and Law in the Court’s Opinion ........................................ 5

Argument ................................................................................................................. 8

Prayer ..................................................................................................................... 13

Certificate of Compliance and Certificate of Service ............................................ 14

Appendix Table of Contents .................................................................................. 15

I NDEX OF A UTHORITIES

C ASES

Belt v. Oppenheimer, Blend, Harrison & Tate, Inc. ,

192 S.W.3d 780, 787 (Tex. 2006) .................................................................... 12 Borissoff v. Taylor & Faust ,

15 Cal. Rptr.3d 735, 739 (Cal. 2004) ............................................................... 11 Bookman v. Davidson ,

136 So. 3d 1276, 1278-80 (Fla. 1st DCA 2014) ............................................... 11 Isaacs v. Schleier ,

356 S.W.3d 548, 559 (Tex. App.—Texarkana 2011, pet. denied) ..................... 9 Lujan v. Hous. Gen. Ins. Co.,

756 S.W.2d 295, 296 (Tex. 1988) ...................................................................... 8 Smith v. O’Donnell ,

288 S.W.3d 417, 420-21 (Tex. 2009) ............................................................... 12 Vinson & Elkins v. Moran ,

946 S.W.2d 381, 387, 398

(Tex. App.—Houston [14th Dist.] 1997, writ dism'd) ..................................... 11 West v. Robinson

180 S.W.3d 575, 576 (Tex. 2005) ...................................................................... 8 S TATUTES

Tex. Estates Code §361.153 .................................................................................. 11

Tex. Prob. Code §224 ............................................................................................ 11

Tex. R. App. P. 47.1 ................................................................................. 4, 8-10, 12

I SSUES P RESENTED F OR R EVIEW 1. Texas Rule of Appellate Procedure 47.1 requires the Court to address the

following issues raised and necessary to final disposition of this appeal: a. Did Appellee Mark L. Boon (“Boon”) show as a matter of law that the allegation that he gave false testimony is not a claim for breach of fiduciary duty but only a claim for negligence?

b. Pursuant to Section 224 of the Texas Probate Code, can Wendolyn Messner (“Wendolyn”), as successor personal representative of Delbert’s estate, bring malpractice claims against Boon for any negligent acts that he committed while he was representing the previous personal representative, Juanita Bengel?

M ISSTATEMENTS OF F ACTS A ND L AW IN T HE C OURT ’ S O PINION The Court’s Opinion of January 28, 2015 corrected some of the misstatements of facts and law that were in the Court’s Opinion of December 19,

2014 (the “Initial Opinion”). A couple of factual misstatements remain, however.

To facilitate communication, Wendolyn shall use the abbreviated terms found in

the Opinion (e.g., “University” means “LeTourneau University,” “ Smith ” means

“ Smith v. O’Donnell , 288 S.W.3d 417 (Tex. 2009)”).

On page 6 of its Opinion, the Court states that Boon testified at some point in his deposition that in 2005 Bengel wrote a $293,241.77 check to the University,

and this check “was for Trust C assets.” Later, on page 23 of its Opinion, the Court

repeats its belief that “Boon testified that Bengel herself wrote a check to the

University for Trust C assets.” As stated in its Motion for Rehearing of January 5,

2015 (the “Initial Motion for Rehearing”), Boon did not testify that the check for

$293,241.77 “was for Trust C assets.” Moreover, any such testimony would have

been erroneous since the value of the assets assigned to Trust C was $188,586.00

and not $293,241.77. In asserting her belief that the Court made a mistake on

Boon’s testimony, Wendolyn’s counsel had access not only to Boon’s deposition

but also to the Word Index. Since the Court probably did not have access to the

Word Index because it was not included in the clerk’s record, it may have been

*6 overly burdensome for the Court to research this minor error in its Initial Opinion.

Wendolyn’s counsel is attaching a copy of the Word Index for the Court to

review. ^[3] A search for the word “check” and the number “$293,251.77” [sic] should

facilitate the Court’s research. Moreover, an examination of the accounting that

was attached to and discussed at Boon’s deposition, which is found on page 304 of

the clerk’s record, reveals the dollar amount, $293,241.77, was not the pecuniary

value of Trust C but was arrived at through a series of calculations. ^[4] Unless

counsel for Wendolyn has overlooked something in Boon’s deposition, the Court

should strike any statements in its Opinion that Boon testified Bengel wrote a

check in the amount of $293,241.77 to the University for Trust C assets.

In her Initial Motion for Rehearing, Wendolyn pointed out that the following statement on pages 8-9 of the Court’s Initial Opinion was incorrect: “After the

LeTourneau Defendants filed an expert report concluding that Delbert had the

general power of appointment and that it was validly exercised, all remaining

claims arising out of the LeTourneau lawsuit were settled.” In trying to correct

this misstatement, the Court made a typo on page 8 of its Opinion that it may wish

to correct: “After the an [sic] expert report produced in the LeTourneau lawsuit

concluded …”

*7 On page 8 of the Opinion, the Court corrected a mistake in its Initial Opinion in which it had erroneously stated that all of the LeTourneau Defendants brought

certain counterclaims against the plaintiffs in the LeTourneau Lawsuit. But the

Court did not correct this same mistake on page 10 of the Initial Opinion, which

still appears on page 10 of the Opinion: “… Wendolyn determined that the estate

could now bring claims similar to the counterclaims filed by the LeTourneau

Defendants.” As pointed out in the Initial Motion for Rehearing, the counterclaims

were not filed by all of the LeTourneau Defendants, but only by “some of the

LeTourneau Defendants,” as the Court correctly states on page 8 of the Opinion.

The Court needs to correct page 10 of its Opinion, as it did page 8, that only “some

of the LeTourneau Defendants” filed counterclaims in the LeTourneau Lawsuit.

*8 A RGUMENT

1. The Court needs to address the following arguments of Wendolyn: (a)

Boon breached his fiduciary duty by giving false testimony; and (b) Wendolyn can bring claims against Boon on behalf of Delbert’s estate for legal malpractice that occurred after Delbert’s death and during Bengel’s administration.

A court of appeals must hand down a written opinion that addresses every issue raised and necessary to final disposition of the appeal. ^[7] This provision is

mandatory, and the courts of appeals are not at liberty to disregard it. ^[8] When a

court of appeals does not address an issue that was raised, the parties are left with

nothing but speculation as to why the court of appeals ruled as it did. ^[9]

(a) Boon breached his fiduciary duty by giving false testimony.

On pages 11 and 12 of its Opinion, the Court points out that Wendolyn has alleged two grounds for finding that Boon had breached his fiduciary duty. First, a

jury could find that Boon gave false testimony at his deposition when he stated that

he had always been concerned about the validity of Delbert’s power of

appointment. ^[10] This testimony is dubious because he admitted that he never

expressed this concern to anyone and, due to the plain language of the Trust

Agreement, had difficulty giving a good reason for this concern. ^[11] Alternatively, a

jury could find that Boon breached his fiduciary duty by not disclosing this

*9 concern to Delbert or Bengel. ^[12] The Court addressed the alternative grounds for

Boon’s alleged breach of fiduciary duty (i.e., Boon’s failure to disclose his

concerns) and found that this theory of liability does not “allege the type of

dishonesty or intentional deception that will support a breach-of-fiduciary-duty

claim.” ^[13] But the Court did not discuss the other grounds alleged by Wendolyn for

finding that Boon had breached his fiduciary duty, namely, Boon’s false testimony

at his deposition. Texas Rule of Appellate Procedure 47.1 states that the Court

must consider this issue or else it will remain unresolved when the case is

remanded to the trial court.

The allegation that Boon lied at his deposition involves the type of dishonesty or intentional deception that will support a claim for breach of fiduciary

duty. ^[14] Moreover, by giving testimony designed to create the impression that

Delbert might not have had a general power of appointment over Trust C, Boon

also engaged in self-dealing at the expense of Delbert, his former client. ^[15] In other

words, he simultaneously tried to minimize his fault in not obtaining the assets of

Trust C for Delbert’s estate ^[16] and frustrated the explicit instruction of Delbert that

he wanted as little trust property to go to the University and as much to go to the

*10 beneficiaries of his estate. ^[17] Finally, unlike the truth, this false testimony did not

harm the claim of his personal friend, Jim Hughey, that the University, Hughey’s

employer, was the ultimate beneficiary of the assets in Trust C. ^[18] In short,

Wendolyn has alleged that Boon lied in order to put his own interest ahead of that

of his former client, Delbert. In violation of Texas Rule of Appellate Procedure

47.1, the Court’s Opinion fails to address Wendolyn’s initial allegation supporting

a claim for breach of fiduciary duty, namely, Boon lied in his deposition when he

testified that he had always been secretly concerned about the validity of Delbert’s

general power of appointment.

(b) Section 224 of the Texas Probate Code gives Wendolyn the right to pursue

claims for legal malpractice against Boon that Bengel herself could have

brought.

On page 18-21 of its Opinion, the Court discusses Boon’s argument that Wendolyn’s lack of privity bars her claims for negligence against him. To defeat

Boon’s argument, the Court states that Wendolyn “refers to the rule in Smith v.

O’Donnell , 288 S.W.3d 417, 419 (Tex. 2009).” But Wendolyn never referred to

the rule in Smith in her response to Boon’s amended motion for summary judgment

or in her brief, and neither did Boon. More importantly, the Court never

considered her principal argument for overcoming Boon’s privity defense: Section

*11 224 of the Texas Probate Code. ^[20] According to that statute, a successor personal

representative, like Wendolyn, has “all rights, powers, and duties of his

predecessor,” unless otherwise specified in the decedent’s last will and testament. ^[21]

Moreover, in her brief, Wendolyn cited to a Texas case in which the Fourteenth

Court of Appeals interpreted the statute to mean that a successor personal

representative could sue a law firm for legal malpractice that had occurred during a

predecessor’s administration of an estate. ^[22] Wendolyn also noted that the

California Supreme Court relied on a statute similar to Section 224 of the Texas

Probate Code to overcome a law firm’s defense of lack of privity. ^[23] Very recently,

in May 2014, a Florida appellate court also held that a statute similar to Section

224 of the Texas Probate Code overcame an attorney’s defense of lack of privity to

a malpractice claim brought by a successor personal representative. ^[24] Moreover, in

erecting a privity barrier between the successor personal representative and her

predecessor concerning Boon’s malpractice, the Court ignores the identical

interests of the successor personal representative and her predecessor in bringing

*12 legal malpractice claims on behalf of the estate. ^[25] Finally, as the Texas Supreme

Court noted in Belt , the rationale for the privity barrier “does not apply when an

estate's personal representative seeks to recover damages incurred by the estate

itself.” ^[26] In this case, Wendolyn seeks to recover damages incurred by Delbert’s

estate itself due to Boon’s negligence; ^[27] and she does so without relying on

extrinsic evidence but on the documents prepared by Boon himself and his own

admissions at his deposition. ^[28] In summary, in conformity with Texas Rule of

Appellate Procedure 47.1, the Court must address Wendolyn’s argument based on

Section 224 of the Probate Code and reconsider its holding that Wendolyn cannot

bring claims against Boon for legal malpractice occurring during Bengel’s

administration.

*13 P RAYER

For the reasons states in this motion, Wendolyn asks the Court to grant this motion for rehearing, withdraw its opinion, correct its misstatements of law and

facts, address her argument concerning Boon’s breach of fiduciary duty for giving

false testimony at his deposition, and address her argument that Section 224 of the

Texas Probate Code overcomes Boon’s defense of privity whose rationale does not

apply in this case.

Respectfully submitted, /s/ Paul W. Turner____________ Paul W. Turner Texas Bar No. 24037619 400 S. Alamo, Suite A Marshall, Texas 75670 903-935-0135 (phone) 903-935-0235 (facsimile) pturner@thelawofficeofpwt.com Counsel for Appellant *14 C ERTIFICATE OF C OMPLIANCE This motion for rehearing complies with Texas Rule of Appellate Procedure 9.4(i) because it contains 2,581 words (excluding the parts of the motion exempted

by this rule).

Signed on February 12, 2015.

/s/ Paul W. Turner____________ Paul W. Turner C ERTIFICATE OF S ERVICE

I certify that on February 12, 2015, I served a copy of Appellant’s Motion for Rehearing on counsel for Appellees listed below by electronic service and the

electronic transmission was reported as complete. My email address is

pturner@thelawofficeofpwt.com.

Michael L. Dunn

Smead, Anderson & Dunn

2110 Horseshoe Lane

Longview, Texas 75605

Counsel for Appellees Mark L. Boon and

Boon Shaver Echols Coleman & Goolsby, P.L.L.C.

/s/ Paul W. Turner____________ Paul W. Turner *15 A PPENDIX T ABLE OF C ONTENTS Tex. Estates Code §361.153 .................................................................................... 1

Tex. Prob. Code §224 .............................................................................................. 2

Tex. R. App. P. 47.1 ................................................................................................ 3

Word Index for Boon’s Deposition .................................................................... 4-41

[1] Appellant’s Initial Motion for Rehearing, p. 7; C.R. 229-31, 294, 304-05.

[2] C.R. 227, 304, 312; Appellant’s Brief, p. 13.

[3] Appendix of Motion for Rehearing.

[4] Appellant’s Initial Motion for Rehearing, p. 7; C.R. 227, 304, 312; Appellant’s Brief, p. 13.

[5] Appellant’s Initial Motion for Rehearing, p. 9-10.

[6] Appellant’s Initial Motion for Rehearing, p. 8-9.

[7] Tex. R. App. P. 47.1.

[8] West v. Robinson , 180 S.W.3d 575, 576 (Tex. 2005).

[9] Lujan v. Hous. Gen. Ins. Co. , 756 S.W.2d 295, 296 (Tex. 1988).

[10] C.R. 26-27, 54-55, 157-58; 246, 277; Appellant’s Brief, p. 18, 20, 39.

[11] C.R. 26-27, 54-55, 157-58; 246, 277, 342; Appellant’s Brief, p. 18, 20, 39.

[12] C.R. 26-27, 54-55, 157-58, 277; Appellant’s Brief, p. 20, 39.

[13] Opinion, p. 14-18 (citing Isaacs v. Schleier , 356 S.W.3d 548, 559 (Tex. App.—Texarkana 2011, pet. denied).

[14] Opinion, p. 17; Isaacs v. Schleier , 356 S.W.3d 548, 559 (Tex. App.—Texarkana 2011, pet. denied).

[15] Isaacs v. Schleier , 356 S.W.3d 548, 559 (Tex. App.—Texarkana 2011, pet. denied).

[16] C.R. 27, 55, 158, 251, 276; Appellant’s Brief, p. 39.

[17] C.R. 25, 53, 202-03, 217; Appellant’s Brief, p. 13.

[18] C.R. 157-58; Appellant’s Brief, p. 15, 20.

[19] C.R. 133-35, 155-57; Appellant’s Brief, p. 6; Appellee’s Brief, p. v.

[20] C.R. 155-57; Appellant’s Brief, p. 36-38, notes 122-24.

[21] Tex. Prob. Code §224 (now Tex. Estates Code §361.153); C.R. 156; Appellant’s Brief, p. 37, Appendix Page 80.

[22] Appellant’s Brief, notes 122, 128; Vinson & Elkins v. Moran , 946 S.W.2d 381, 387, 398 (Tex. App.—Houston [14th Dist.] 1997, writ dism'd) (noting that although not assignable, legal malpractice claims passed from the executors, who had hired Vinson & Elkins to assist them in administering an estate, to a successor representative because the successor “stepped into the shoes” of his predecessors pursuant to Section 224 of the Texas Probate Code).

[23] C.R. 156; Appellant’s Brief, notes 126-27; Borissoff v. Taylor & Faust , 15 Cal. Rptr.3d 735-37 (Cal. 2004) (citing Section 8524(c) of the California Probate Code).

[24] Bookman v. Davidson , 136 So. 3d 1276, 1278-80 (Fla. 1st DCA 2014) (citing Section 733.614 of the Florida Statutes).

[25] Smith v. O’Donnell , 288 S.W.3d 417, 421 (Tex. 2009) (“An estate’s interests … mirror those of the decedent”); Belt v. Oppenheimer, Blend, Harrison & Tate, Inc. , 192 S.W.3d 780, 787 (Tex. 2006) (“a decedent's interests should mirror those of his estate.”)

[26] Belt v. Oppenheimer, Blend, Harrison & Tate, Inc. , 192 S.W.3d 780, 787 (Tex. 2006).

[27] C.R. 53-56.

[28] C.R. 141-43, 202-22, 217, 342; Appellant’s Brief 13-14.