FRAUD - suing personal representative - Texas Probate, Estate and Trust Administration litigation guide

Texas Probate, Estate and Trust Administration
Copyright 2005, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
PART 5 CONTESTS AND LITIGATION
CHAPTER 47 FIDUCIARY LITIGATION

3-47 Texas Probate, Estate and Trust Administration § 47.02

§ 47.02 Fraud

A person suing a personal representative for breach of a fiduciary duty may also have a cause of action for common-law fraud.

The elements of a fraud cause of action are
(1) a material misrepresentation
(2) that was false and
(3) that was either known to be false when made or was asserted without knowledge of the truth,
(4) that was intended to be acted on,
(5) that was relied on, and
(6) that caused injury.n1

Although statements of law, statements of opinion, and predictions as to future events are not generally actionable as fraudulent, they may be actionable if made by a personal representative to an estate beneficiary because of the fiduciary nature of the relationship or the representative's possession of superior information.n2 Similarly, although a mere failure to disclose information does not generally amount to fraud,n3 a personal representative's failure to disclose facts will constitute fraud if the facts are among those the representative has a fiduciary duty to disclose.n4
A plaintiff who prevails on a fraud cause of action is entitled to actual damages and may be entitled to exemplary damages. Actual damages are traditionally measured by the ''out-of-pocket'' method (the difference between the value of the thing given and the value of the thing obtained).n5 Special or consequential damages that proximately resulted from the fraud may also be recovered,n6 as may damages for mental anguish.n7 Exemplary damages are recoverable in some cases.n8 For a discussion of the situations that may justify an award of exemplary damages, see § 47.01[4][c].
The statute of limitation for a fraud cause of action is four years.n9
For a full discussion of fraud causes of action, see TEXAS LITIGATION GUIDE, ch. 336, Fraud , and TEXAS TORTS AND REMEDIES, ch. 44, Fraud and Misrepresentation.
Legal Topics:

For related research and practice materials, see the following legal topics:
Estate, Gift & Trust LawProbateProcedures in ProbateGovernmentsLegislationStatutes of LimitationsTime
LimitationsEstate, Gift & Trust LawEstate AdministrationGeneral OverviewTortsBusiness TortsFraud &
MisrepresentationNondisclosureElementsEstate, Gift & Trust LawProbatePersonal RepresentativesClaims By &
Against


FOOTNOTES:
(n1)Footnote 1. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990) , cert. denied , 498 U.S. 1048, 112 L. Ed. 2d 775 (1991) .
(n2)Footnote 2. See Moreau v. Oppenheim, 663 F.2d 1300, 1310 (5th Cir. [Tex.] 1981), cert. denied, 458 U.S.
Page 200 3-47 Texas Probate, Estate and Trust Administration § 47.02 1891 Tex. LEXIS 1161, ***16
1107 (1982) -president of corporation that managed joint venture liable to joint venturers and shareholders based on misrepresentation of law regarding business and corporate powers; Sawyer v. Pierce, 580 S.W.2d 117-126 (Civ. App.-Corpus Christi 1979, ref. n.r.e.)-buyers entitled to rescind sale of trailer park based on sellers' statement that there was room for 30 trailers in park, because sellers knew and failed to mention that county regulations permitted only 15 spaces to be rented on property; Wright v. Carpenter, 579 S.W.2d 575, 580 (Civ. App.-Corpus Christi 1979, ref. n.r.e.)­sellers of house liable based on prediction as to how long roof would last, because they had superior knowledge of roof's condition; Squyres v. Christian, 242 S.W.2d 786-790 (Civ. App.-Texarkana 1951, dis.)-accountant liable based on statement of opinion to clients with whom accountant had fiduciary relationship.
(n3)Footnote 3. See Moore & Moore Drilling Company v. White, 14 O.&G.R. 847, 345 S.W.2d 550, 555 (Civ. App.-Dallas 1961, ref. n.r.e.) .
(n4)Footnote 4. See Anderson v. Anderson, 620 S.W.2d 815, 819 (Civ. App.-Tyler 1981, no writ)-granddaughter to whom property was deeded by grandmother and who occupied position of trust and confidence in relationship with grandmother had duty to tell grandmother that representation in deed that granddaughter would take care of grandmother for rest of her life was false; § 47.01[3][c]-fiduciary duty of disclosure.
(n5)Footnote 5. See Sobel v. Jenkins, 15 Tex. Sup. Ct. J. 241, 477 S.W.2d 863, 868 (Tex. 1972) .
(n6)Footnote 6. See Wright v. Carpenter, 579 S.W.2d 575, 578 (Civ. App.-Corpus Christi 1979, ref. n.r.e.) .
(n7)Footnote 7. Kneip v. Unitedbank-Victoria, 734 S.W.2d 130, 136 (Tex. App.-Corpus Christi 1987, no writ) .
(n8)Footnote 8. See Trenholm v. Ratcliff, 646 S.W.2d 927, 933 (Tex. 1983)-finding of intent to harm or conscious indifference to rights of others sufficient to uphold award of exemplary damages.
(n9)Footnote 9. Williams v. Khalaf, 34 Tex. Sup. Ct. J. 133, 802 S.W.2d 651, 658 (Tex. 1990) ; see C.P.R.C. § 16.004(a)(3)-four-year statute of limitation for action on debt; C.P.R.C. § 16.051-four-year residual statute of limitation.
56 of 100 DOCUMENTS
Texas Probate, Estate and Trust Administration
Copyright 2005, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
PART 4 ADMINISTRATIVE MATTERS
CHAPTER 32 CREDITORS' CLAIMS
B NOTICE TO CREDITORS AND FILING OF CLAIMS

2-32 Texas Probate, Estate and Trust Administration § 32.16
§ 32.16 Exceptions to Claim Requirement
[1] In General
[a] Effect of Exemption on Limitations Period
Probate Code Section 298 requires presentment of claims ''for money,'' which has been held to include all existing debts of an estate.n1 However, it has been held that contingent or unliquidated claims for money, such as those that require the intervention of a jury to ascertain the amount, need not be presented to the representative as a prerequisite to suit on those claims.n2 Even if a claim is specifically exempted from the presentment requirement, the creditor is free to submit it to the representative in authenticated form. However, before doing so, the creditor should be aware that an unnecessary presentment may provide some basis for the representative to argue that the limitations period and authentication requirements of Section 298 and 301 apply to the claim.n3
The question of whether an unnecessary presentment will subject the claimant to the requirement that suit be instituted within 90 days after the representative's rejection of the claim has not been clearly resolved by the courts.n4 Prior to the adoption of the Probate Code, the statute governing suits on rejected claims referred only to ''claims for money.'' Accordingly, it was held that an unnecessary presentment did not bind the claimant to the 90-day limitations period.n5
Under the present wording of Probate Code Section 313, suits must be brought within 90 days following the rejection of a ''claim.''n6 The phrase ''for money'' no longer appears. Although it could be argued that the change in statutory wording obligates any one who presents a claim that is rejected to sue within 90 days, the weight of authority indicates a trend against the imposition of the 90-day limitations period to unnecessary presentments. For example, in Lusk v. Mintz, n7 a creditor holding a vendor's lien on real property filed a claim against the guardian and estate of an incompetent as a preferred debt and lien against the land.n8 Although the claim was rejected and suit was filed after the applicable limitations period,n9 the court of appeals held that since the unnecessary presentation and rejection of a claim does not invoke the limitations provision of Section 313 and since the creditor's claim was based on superior legal title and thus did not need to be presented, compliance with the limitation provision was unnecessary.n10 Similarly, in Ullrich v. Estate of Anderson,n11 a court of appeals held that the 90-day limitations period did not apply to a claim by an accountant against an estate, even though the claim had originally been presented to the estate, because the claim was one to which the procedures for presenting claims did not apply.n12 However, in Andrews v. Aldine Independent School District,n12.1 the school district, held a governmental taxing agency by the appellate court, unnecessarily filed a claim with the dependent representative of an estate (rather than simply seek foreclosure) and, when no action was taken within 30 days by the representative, found its claim barred ninety days thereafter. The court also held that the school district's claims for payment of delinquent ad valorem taxes was a claim for money, not a claim in rem.
Page 202 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
If a claim is one that is not required to be presented, such as an unliquidated claim,n13 a contingent claim,n14 or one against the representative arising after the issuance of letters,n15 it must be established by judgment.n16 The claimant must bring suit against the representative in his or her capacity as representative.n17 The suit must be filed before the applicable statute of limitation has barred its prosecution. However, death tolls the limitations period for 12 months or until qualification of a personal representative of the estate, whichever occurs first.n18
[b] Jurisdiction
If an estate is being administered in, or letters testamentary were issued from, a statutory probate court, the suit must be brought in that court rather than a district court, even though the jurisdiction of the two courts is concurrent.n19 If the probate matter was initiated in a court other than a statutory probate court,n20 the claimant may bring suit in that court regardless of the amount in controversy.n21 However, constitutional county courts and county courts at law, when exercising probate jurisdiction, do not have exclusive jurisdiction over suits to establish claims against the estate; the claimant has a choice of forum and may sue in a district or county-level court, depending on the amount in controversy.n22
If the claimant reduces an unliquidated claim to a judgment for money, the judgment must state that it is to be paid in due course of administration.n23 If judgment is rendered by a court other than the one in which the administration is pending, the court should certify the judgment to the court having probate jurisdiction over the estate.n24 The court that exercises probate jurisdiction over the estate would then be empowered to enforce the judgment,n25 which would include (1) entering the claim on the claim docket;n26(2) classifying the claim;n27 and (3) subject to the availability of funds, ensuring payment by the representative.n28
If a claim is established by judgment against an independent executor or administrator, the judgment creditor may pursue execution of the judgment against the decedent's property held by the representative.n29 However, the representative may enjoin execution if the judgment creditor, due to the insolvency of the estate, would gain an unfair advantage over creditors of the same or higher classification.n30
For a discussion of the effect on probate jurisdiction of a claim other than a ''claim for money,'' see [4], below.
[2] Unliquidated Claims
Claims must be presented only if they are sufficiently fixed and definite as to be susceptible to verification by affidavit.n31 Presentment to the personal representative is not required when the claim against the decedent is for uncertain or unliquidated damages.n32
In light of the requirement that the amount of a claim be fixed with some certainty, several classes of claims have been permitted to be established by suit without prior presentment. For example, tort claims do not require presentment.n33 Likewise, damages resulting from the breach of a contract to devise property do not constitute a ''claim for money'' and need not be presented prior to suit.n34 Also, unliquidated damages claims based on warranties made by the deceased need not be presented under Section 298.n35
The difficulty in applying the rule exempting unliquidated claims from the presentment requirement appears primarily in contract cases. The Texas Supreme Court has held that presentment is required if the claim may be reduced to a definite sum on proper data, as opposed to one in which the jury must determine the amount.n36 In Anderson, the Texas Supreme Court held that a claim for services rendered by a physician pursuant to an express or implied contract was a claim for money that must be presented to the representative. The Texas Supreme Court noted that similar claims, such as a those for attorney's services rendered to the decedent without prior agreement as to the amount and any other claims that may be reduced to a specific sum at the time of presentation, must be presented.n37 On the other hand, the court
Page 203 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
noted that a claim that cannot be verified with a reasonable degree of certainty, such as a mere demand for unliquidated damages, damages for breach of contract, for trespass, or for wrongful levy of attachment, need not be presented prior to suit.n38
Decisions involving claims for personal services rendered to a decedent have reached inconsistent results. Some have held that a claim for the care of a decedent must be presented, regardless of whether or not the person providing the care was a professional.n39 One court held that an attorney's claim based on services rendered during the decedent's lifetime could properly have been presented to the representative.n41-42
If the claim is one that could be brought under Rule 185 of the Texas Rules of Civil Procedure, governing suits on accounts,n43 it would be prudent practice also to comply with the requirements of Probate Code Section 298 by presenting the claim to the personal representative.n44 If the claim is rejected, suit on that rejected claim must be filed within 90 days.n45 If a creditor is able to invoke an alternative theory of recovery, his or her claim will still be deemed one ''for money'' that requires presentment since the primary cause of action fixes the status of the demand.n46
[3] Contingent Claims
When a decedent's liability is contingent on the liability of another person, the person to whom the liability is owed need not present his or her claim pursuant to Probate Code Section 298.n47 This exemption from the presentation requirement was developed in cases involving conditional guarantors who could not be sued without the joinder of the principal obligor.n48 If the claimant were required to proceed to judgment against the primary obligor and then present an unsatisfied judgment to the representative of the guarantor's estate, numerous suits and needless delay would result. Thus, the payee is allowed to proceed against the primary obligor and the representative of a deceased guarantor in a court having subject matter jurisdiction of the obligation without first presenting the claim to the representative.n49 When the primary obligor is insolvent, the exemption does not apply and a creditor must present the claim to the representative and follow the procedures set forth in the Probate Code.n50
Although the decisions exempting contingent claims from the presentation requirement have been based on the fact that the guarantor could not be sued without the joinder of the principal, the joinder statutes provide for exceptions to that general rule.n51 A party who is not primarily liable on an instrument may be sued without joinder of the principal obligor when the principal obligor is (1) notoriously insolvent, (2) dead, (3) not a resident of Texas, (4) outside the reach of ordinary process of law, or (5) resident at a location that is unknown and cannot be ascertained by the use of reasonable diligence.n52
If the decedent executed an absolute and unconditional guaranty of payment, the claim against the estate is not contingent and must be presented to the representative for payment and, if rejected, sued on within 90 days after rejection.n53 The joinder statute applies only if the surety or guarantor is not primarily liable.n54 If the guarantor or surety guarantees payment of the obligation in a manner so as to become an absolute guarantor and thus primarily obligated to pay, the holder of the indebtedness may enforce payment against the guarantor without first proceeding against, joining, or showing an excuse for nonjoinder of the maker.n55
Other types of claims may be deemed contingent and not within the presentment requirement. For example, in one case it was held that a claim for indemnity resulting from a breach of warranty by deed was contingent on the warrantee's eviction by one claiming superior title to the property covered by the deed. Thus, the representative of the warrantor's estate could be joined in suit without prior presentation and rejection of the claim.n56
[4] Claims for Property
Since the statutes governing the presentment of claims against a decedent's estate apply to ''claims for money,'' they are generally deemed inapplicable to causes of action for title to, or interests in, real or personal property.n57 For example,
Page 204 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
the Probate Code presentment requirements do not apply to (1) actions for specific performance of a contract to convey property or (2) actions to impose a resulting trust on realty held for the claimant by the decedent.n58
When a claim for property is made against an estate, a court exercising probate jurisdiction will not be deprived of jurisdiction merely because that claim is not a ''claim for money'' governed by the Probate Code.n59 For example, an assertion that a claimant is the true or beneficial owner of specific property included in the inventory of an estate would fall within the probate court's jurisdiction under Probate Code Section 5A as a matter incident to an estate, as either an action for trial of title to land, an action for trial of the right of property, or a matter relating to the settlement, partition, and distribution of estates.n60
One court of appeals has held that a district court had no jurisdiction to hear a suit for equitable title to real property held by the administrator of a decedent's estate since the claim was not one for money and could not form basis for suit on rejected claim.n61 However, that court of appeals did not discuss concurrent jurisdiction under Probate Code Section 5A.n62
[5] Claims Arising After Issuance of Letters
[a] Types of Claims Exempt From Presentment Requirement
Probate Code Section 317(c) exempts from the presentment requirement of Probate Code Section 298 any claim that accrues after the issuance of letters and that is based on some matter for which the representative of the estate contracted.n63 When a representative contracts for anything necessary to an administration of the estate, he or she does so as an agent for the estate and, in that capacity, the representative is totally free to contract for necessary services.n64 Most claims arising after the issuance of letters are for expenses incurred and contracted for by the estate's representative, such as claims for attorney's and accountant's fees.n65 However, Section 317 has been applied to exempt a claim for rentals collected by the representative from property jointly owned by the claimant and the decedent's estate from the presentment requirement of Section 298.n66
For a general discussion of services contracted for in the course of administration, see Ch. 30, Estate Administration.
[b] Satisfaction of Claims
There are two ways to obtain payment of expenses such as attorney's fees for services rendered to a decedent's estate. First, the attorney may follow the general presentment procedures of the Probate Code.n67 Alternatively, the personal representative may include a request for reimbursement in his or her final account.n68
Ordinarily, the person contracting with a representative may proceed against the estate, against the representative in his or her individual capacity, or both. However, a contractual provision limiting the creditor's recourse to the estate will be given effect.n69 If the creditor elects to proceed against the estate, he or she may follow several different procedures, the selection of which will depend on the representative's opinion of the claim. He or she may treat the claim as an administrative expense in a definite sum and file a verified claim for the amount due. That claim will be acted on by the court in the same manner as other claims against the estate.n70 However, a court's action on an expense claim, unlike other claims, may not be a final judgment.n71 The court may retain the power to review the allowance of the expense during its examination of the representative's final account.n72 Alternatively, the representative may include the claim in the final account and seek approval and authority for payment in the order approving that account.n73 In either event, the representative should not pay the claim until it has been approved by the court or established by judgment.n74
Generally, the representative may proceed directly against the estate for the reimbursement of amounts for which he or she contracts.n75 Moreover, if a contract for services does not limit the creditor's right of recovery to the estate, the claimant may proceed against the representative individually.n76 A representative against whom a creditor obtains a
Page 205 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
judgment individually may seek reimbursement for the judgment as an expense of administration under Probate Code Sections 242-244.n77 However, the amount of the reimbursement will not necessarily be measured by the amount agreed on by the representative and creditor in their contract. The representative may bind the estate only for the cost of reasonable and necessary services.n78 Accordingly, the representative may be held personally liable for amounts in excess of those seemed to be reasonable and necessary.n79
The claimant may file suit in any court having jurisdiction over the amount in controversy. However, if the matter is pending in a statutory probate court, the claim should be filed in that court.n80
[6] Claims by Personal Representative
Representatives of decedents' estates who are also creditors of the estates are exempt from the presentment requirements of Probate Code Section 298.n81 If a representative is also a creditor, he or she must file a verified claim with the clerk of the court for entry on the claim docket.n82 The representative must file the claim within six months after he or she qualifies as representative or be barred.n83 However, if the representative is a secured creditor, the failure to file the claim within six months after qualifying will result in treatment of the claim as a preferred lien against property rather than as a bar to the claim.n84
After the representative's claim is entered on the claim docket, it will be acted on by the court in the same manner as other claims.n85 Any interested person who is dissatisfied by the order of the court approving or disapproving the representative's claim may seek review of the order by appeal to a court of civil appeals.n86
For a further discussion of claims involving representatives, see § 32.15.
[7] Claims by Heirs
Anyone with a claim against an estate in his or her capacity as an heir, devisee, or legatee of that estate is exempt from the presentment requirements of Probate Code Section 298.n87 Heirs are those persons, including the surviving spouse, who are entitled under the statutes of descent and distribution to the estate of a decedent who dies intestate.n88 A legatee is any person entitled under a will to receive any gift or devise of real or personal property.n89
For a discussion of the manner in which devisees and heirs obtain payment of their claims on estate property, see Ch. 11, Intestate Succession; Ch. 30, Estate Administration; Ch. 31, Collection, Management, and Distribution of Assets; and Ch. 40, Will Construction.
[8] Set-Off for Financial Institution
A financial institution in which the decedent has deposits at the time of death and to which the decedent owes money is not required to present its claim to the personal representative. Rather, the institution can simply set off its claim against the money in the decedent's accounts. This is true regardless of whether the institution's claim is mature or whether the estate is solvent.n90
Legal Topics:
For related research and practice materials, see the following legal topics: Estate, Gift & Trust LawEstate AdministrationClaims Against EstatesNotice to CreditorsEstate, Gift & Trust LawEstate AdministrationClaims Against EstatesPriority of ClaimsEstate, Gift & Trust LawEstate AdministrationClaims Against EstatesGeneral OverviewEstate, Gift & Trust LawEstate AdministrationClaims Against EstatesTime LimitationsEstate, Gift & Trust LawProbatePersonal RepresentativesClaims By & Against
FOOTNOTES:
Page 206 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
(n1)Footnote 1. See Prob. C. § 298; Anderson v. First Nat. Bank of El Paso, 120 Tex. 313, 38 S.W.2d 768, 769 (1931) . (n2)Footnote 2. Allen v. Denk, 87 S.W.2d 303, 307 (Civ. App.-Austin 1935, no writ) ; see Cross v. Old Republic
Surety Co., 983 S.W.2d 771 (Tex. App.-San Antonio 1998, no pet. h.) ; [2], [3], below.
(n3)Footnote 3. See Prob. C. §§ 298, 301.
(n4)Footnote 4. See, e.g., Pirkle v. Cassity, 104 F. Supp. 318, 321 (E.D. Tex. 1952)-unnecessary presentation to foreign executor was nullity and did not trigger 90-day statute of limitation for suit on rejected claims; Wilder v. Mossler, 583 S.W.2d 664, 667 (Civ. App.-Houston [1st Dist.] 1979, no writ)-though presentment by tort claimant was unnecessary, joining administrator as party to suit within 90 days after administrator's rejection of tort claim was held sufficient to preserve claim, if necessary that claimant do so.
(n5)Footnote 5. See Goldman v. Ramsay, 62 S.W.2d 176, 178 (Civ. App.-Texarkana 1933, dis.) .
(n6)Footnote 6. Prob. C. § 313; Edwards v. Estate of Jones, 1998 Tex. App. LEXIS 6533 (Tex. App.-Dallas 1998) , rev'd and remanded, 1999 Tex. App. LEXIS 1418 (Tex. App.-Dallas 1999) ; In re Estate of Ayala, 19 S.W.3d 477 (Tex. App.-Corpus Christi [13th Dist.] 2000, n.w.h.)-Section 313 of the Texas Probate Code (requiring claimant to institute
suit on rejected claim within 90 days of such rejection) does not bar claim that was filed prematurely.
(n7)Footnote 7. 625 S.W.2d 774, 775-776 (Tex. App.-Houston [14th Dist.] 1981, no writ) .
(n8)Footnote 8. See Prob. C. § 306; see also §§ 32.13[1][b], 32.52.
(n9)Footnote 9. See Prob. C. § 313.
(n10)Footnote 10. Lusk v. Mintz, 625 S.W.2d 774, 775-776 (Tex. App.-Houston [14th Dist.] 1981, no writ) .
(n11)Footnote 11. 740 S.W.2d 481, 485-486 (Tex. App.-Houston [1st Dist.] 1987, no writ) .
(n12)Footnote 12. 740 S.W.2d at 485-486 ; see also In reEstate of Glenn, 2001 Tex. App. LEXIS 2637 (Tex. App.-Corpus Christi [13th Dist.] 2001, petition for review denied July 26, 2001)(unpublished opinion)-Section 313 of the Texas Probate Code (requiring a claimant to file suit within ninety days of the rejection of his claim) does not apply to an independent executor.
(n13)Footnote 12.1. 116 S.W.3d 407 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) .
(n14)Footnote 13. See [2], below.
(n15)Footnote 14. See [3], below.
(n16)Footnote 15. See [5], below.
(n17)Footnote 16. Dumitrov v. Hitt, 601 S.W.2d 472, 473 (Civ. App.-Houston [14th Dist.] 1980, ref. n.r.e.)-court's
order on claim has effect of full and final judgment.
(n18)Footnote 17. See Price v. Estate of Anderson, 18 Tex. Sup. Ct. J. 322, 522 S.W.2d 690, 691 (Tex. 1975) .
(n19)Footnote 18. See C.P.R.C. Art. 16.062.
(n20)Footnote 19. Prob. C. § 5A(b); Beall v. Cooke, 2001 Tex. App. LEXIS 4141 (Tex. App.-Houston [1st Dist.] 2001, no pet. h.) (not designated for publication)-District court in a county also containing statutory probate courts properly denied appellant's motion to appoint a temporary administrator of her husband's estate because the court lacked jurisdiction over probate matters under section 5 of the Texas Probate Code; but see McPherson v. Judge, 592 S.W.2d
Page 207 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
406, 409 n. 4 (Civ. App.-Amarillo 1979, no writ)-noting argument that deprivation of district court's jurisdiction may violate Texas Constitution.
(n21)Footnote 20. See Prob. C. § 3(ii).
(n22)Footnote 21. See English v. Cobb, 593 S.W.2d 674, 675 (Tex. 1979)-allowing representative's suit in county court at law in which estate pending, even though suit was for recovery of money in excess of that court's jurisdictional limit.
(n23)Footnote 22. See Prob. C. § 5A(a); see also McPherson v. Judge, 592 S.W.2d 406, 409-410 (Civ. App.-Amarillo 1979, no writ) .
(n24)Footnote 23. T.R.C.P. 313.
(n25)Footnote 24. See T.R.C.P. 313; see also Baten v. Thornhill, 145 S.W.2d 608, 610 (Civ. App.-Beaumont 1940, ref.)-certifying judgment as to any deficit on indebtedness guaranteed by decedent.
(n26)Footnote 25. T.R.C.P. 313.
(n27)Footnote 26. See Prob. C. § 14; see also § 32.31.
(n28)Footnote 27. See Prob. C. § 322; see also § 32.41[1][b].
(n29)Footnote 28. See Prob. C. § 320; see also Manning v. Mayes, 79 Tex. 653, 15 S.W. 638, 638 (1891)­judgment for costs certified to county court for classification; § 32.43.
(n30)Footnote 29. Prob. C. § 147; T.R.C.P. 313.
(n31)Footnote 30. See Farmers' & Merchants' Nat'l Bank v. Bell, 71 S.W. 570, 572 (Civ. App. 1902, ref.) .
(n32)Footnote 31. See Prob. C. § 298; Hume v. Perry, 136 S.W. 594, 596 (Civ. App. 1911, dis.)-presentment not required when decedent was co-guarantor with surviving spouse on series of promissory notes that were due in seven installments and as to which primary obligor had defaulted; see also Anderson v. First Nat'l Bank of El Paso, 120 Tex. 313, 38 S.W.2d 768, 769-770 (1931)-presentment required of claim for cost of medical services.
(n33)Footnote 32. Connelly v. Paul, 731 S.W.2d 657, 660 (Tex. App.-Houston [1st Dist.] 1987, ref. n.r.e.)-no presentment requirement if damages become liquidated only after suit has been filed; see Cross v. Old Republic Surety Co., 983 S.W.2d 771 (Tex. App.-San Antonio 1998, no pet. h.) .
(n34)Footnote 33. Allen v. Denk, 87 S.W.2d 303, 307 (Civ. App.-Austin 1935, no writ) ; Wilder v. Mossler, 583 S.W.2d 664, 667 (Civ. App.-Houston [1st Dist.] 1979, no writ) .
(n35)Footnote 34. See Moore v. Rice, 80 S.W.2d 451, 452 (Civ. App.-Eastland 1935) , dis. 110 S.W.2d 973 ).
(n36)Footnote 35. Donaldson v. Taylor, 713 S.W.2d 716, 718 (Tex. App.-Beaumont 1986, no writ) .
(n37)Footnote 36. Anderson v. First Nat'l Bank of El Paso, 120 Tex. 313, 38 S.W.2d 768, 769-770 (1931) .
(n38)Footnote 37. 38 S.W.2d at 770 .
(n39)Footnote 38. 38 S.W.2d at 770 .
(n40)Footnote 39. See, e.g., Poole v. Rutherford, 199 S.W.2d 665, 667 (Civ. App.-Fort Worth 1947, ref. n.r.e.)­daughter of decedent required to present claim for services rendered in caring for deceased mother; Jaye v. Wheat, 130
Page 208 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
S.W.2d 1081, 1084 (Civ. App.-Eastland 1939, no writ)-in action against siblings, daughter of decedent required to allege facts showing presentment of claim for care services rendered during decedent's life.
(n41)Footnote 41-42. [Reserved].
(n42)Footnote 43. See T.R.C.P. 185; see also § 32.12C.
(n43)Footnote 44. See Prob. C. § 298(a).
(n44)Footnote 45. See Prob. C. § 313; In re Estate of Ayala, 19 S.W.3d 477 (Tex. App.-Corpus Christi [13th Dist.] 2000, n.w.h.)-Section 313 of the Texas Probate Code (requiring claimant to institute suit on rejected claim within 90 days of such rejection) does not bar claim that was filed prematurely; see also § 32.33.
(n45)Footnote 46. Anderson v. First Nat'l Bank of El Paso, 120 Tex. 313, 38 S.W.2d 768, 769 (1931)-quantum meruit theory of recovery asserted in alternative did not relieve creditor from presentment requirement.
(n46)Footnote 47. Baten v. Thornhill, 145 S.W.2d 608, 610-611 (Civ. App.-Beaumont 1940, ref.) ; see Prob. C. §
298. (n47)Footnote 48. See, e.g., Baten v. Thornhill, 145 S.W.2d 608, 610-611 (Civ. App.-Beaumont 1940, ref.) ; Johnson v. First Mortg. Loan Co. of San Angelo, 135 S.W.2d 806, 808-811 (Civ. App.-Austin 1939, no writ) ; Hume v.
Perry, 136 S.W. 594, 597-599 (Civ. App. 1911, dis.) .
(n48)Footnote 49. Baten v. Thornhill, 145 S.W.2d 608, 610-611 (Civ. App.-Beaumont 1940, ref.) .
(n49)Footnote 50. Jones v. Wynne, 133 Tex. 436, 129 S.W.2d 279, 285 (Comm. App., Section B 1939, opinion
adopted) .
(n50)Footnote 51. See C.P.R.C. § 17.001; T.R.C.P. 31.
(n51)Footnote 52. C.P.R.C. § 17.001; see TEXAS LITIGATION GUIDE, ch. 80, Joinder of Third Parties .
(n52)Footnote 53. See Prob. C. § 323; see also Prob. C. § 313; In re Estate of Ayala, 19 S.W.3d 477 (Tex.
App.-Corpus Christi [13th Dist.] 2000, n.w.h.)-Section 313 of the Texas Probate Code (requiring claimant to institute suit on rejected claim within 90 days of such rejection) does not bar claim that was filed prematurely.
(n53)Footnote 54. C.P.R.C. § 17.001; T.R.C.P. 31.
(n54)Footnote 55. Ferguson v. McCarrell, 582 S.W.2d 539, 542 (Civ. App.-Austin 1979) , ref. n.r.e. 588 S.W.2d 895 (1979) ; see National Guaranty Loan & Trust Co. v. Fly, 29 Tex. Civ. App. 533, 69 S.W. 231, 232 (Civ. App. 1902, no writ) .
(n55)Footnote 56. See Moses v. Chapman, 280 S.W. 911, 914 (Civ. App. 1926, no writ) . (n56)Footnote 57. See Prob. C. § 298(a); but see Prob. C. § 306-secured claimant required to present claims as either matured secured claims or preferred liens against specific property; see also § 32.13. (n57)Footnote 58. See Whitehead v. Teague, 483 S.W.2d 378, 379-380 (Civ. App.-Tyler 1972, no writ) ; cf. Hays
v. Nabours, 193 S.W.2d 893, 895-896 (Civ. App.-Eastland 1946, ref. n.r.e.) . (n58)Footnote 59. See Prob. C. § 298. (n59)Footnote 60. Prob. C. § 5A; see English v. Cobb, 593 S.W.2d 674, 675-676 (Tex. 1979)-determination of
decedent's right to probate assets falls within scope of being action incident to estate so that county court at law had
Page 209 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
jurisdiction to determine ownership of bank account in excess of its jurisdictional limit.
(n60)Footnote 61. Whitehead v. Teague, 483 S.W.2d 378, 379-380 (Civ. App.-Tyler 1972, no writ) .
(n61)Footnote 62. See Prob. C. § 5A.
(n62)Footnote 63. Prob. C. § 317; see Prob. C. § 298.
(n63)Footnote 64. Corpus Christi Bank & Trust v. Cross, 586 S.W.2d 664, 669 (Civ. App.-Corpus Christi 1979,
ref. n.r.e.)-accountant's services and fees held reasonable and necessary. (n64)Footnote 65. See, e.g., El Paso Nat. Bank v. Leeper, 538 S.W.2d 803, 806-807 (Civ. App.-El Paso 1976, ref.
n.r.e.) ; Kitchens v. Culhane, 398 S.W.2d 165, 166 (Civ. App.-San Antonio 1965, ref. n.r.e.) .
(n65)Footnote 66. See Hunter v. Cook, 375 S.W.2d 574, 576 (Civ. App.-Houston 1964, dis.) .
(n66)Footnote 67. Prob. C. § 294 et seq.; Weathersby v. Makris, No. 01-98-00145-CV, 1998 Tex. App. LEXIS 7452 (Tex. App.-Houston [1st Dist.] 1998 no pet. h.)-attorney for the estate making a request for payment from the estate under Section 242 of the Texas Probate Codeis not required to make a demand against the personal representative first before filing the claim with the court.
(n67)Footnote 68. Dumitrov. v. Hitt, 601 S.W.2d 472, 473 (Civ. App.-Houston [14th Dist.] 1980, ref. n.r.e.) ; see Armstrong v. Stallworth, 613 S.W.2d 1, 2-3 (Civ. App.-El Paso 1979, no writ)-attorney's fees are representative's expenses of administration.
(n68)Footnote 69. See Corpus Christi Bank & Trust v. Cross, 586 S.W.2d 664, 669-670 (Civ. App.-Corpus Christi 1979, ref. n.r.e.)-unless otherwise stipulated, it is assumed that personal representative in contracting with third party for professional services did so in his or her individual capacity.
(n69)Footnote 70. Prob. C. § 244; see § 32.40.
(n70)Footnote 71. See Prob. C. § 312(d); Richardson v. Kennedy, 74 Tex. 507, 12 S.W. 219, 220 (1889) .
(n71)Footnote 72. See Richardson v. Kennedy, 74 Tex. 507, 12 S.W. 219, 220 (1889) .
(n72)Footnote 73. See Thomas' Estate v. Fullen, 172 S.W.2d 118, 119 (Civ. App.-Beaumont 1943, ref. w.o.m.) .
(n73)Footnote 74. Prob. C. § 319; see § 32.40-approval required before payment.
(n74)Footnote 75. See Prob. C. § 317(c); see also El Paso Nat. Bank v. Leeper, 538 S.W.2d 803, 806-807 (Civ.
App.-El Paso 1976, ref. n.r.e.)-attorney's submission of unverified statement for services with clerk of court held sufficient to support allowance of fees.
(n75)Footnote 76. See Kitchens v. Culhane, 398 S.W.2d 165, 166 (Civ. App.-San Antonio 1965, ref. n.r.e.) .
(n76)Footnote 77. Prob. C. §§ 242-244. Note that under § 244 expense charges should be made in writing, showing each item of expense, date of expense, and must be verified by affidavit and entered on claim docket; see Ch. 31, Collection, Management, and Distribution of Assets.
(n77)Footnote 78. See Corpus Christi Bank & Trust v. Cross, 586 S.W.2d 664, 669 (Civ. App.-Corpus Christi 1979, ref. n.r.e.) .
(n78)Footnote 79. Corpus Christi Bank & Trust v. Cross, 586 S.W.2d 664, 669-670 (Civ. App.-Corpus Christi 1979, ref. n.r.e.) .
Page 210 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
(n79)Footnote 80. See Prob. C. § 5A(b).
(n80)Footnote 81. Prob. C. § 317(a); see Prob. C. § 298.
(n81)Footnote 82. Prob. C. § 317(a).
(n82)Footnote 83. Prob. C. § 317(a).
(n83)Footnote 84. See Prob. C. § 306(b); see also § 32.13.
(n84)Footnote 85. Prob. C. §§ 312, 317(b); see § 32.40.
(n85)Footnote 86. Prob. C. §§ 312(e), 317(b); see Ch. 62, Appeals of Probate Proceedings.
(n86)Footnote 87. Prob. C. § 317(c); see Prob. C. § 298; but see Furr v. Young, 578 S.W.2d 532, 536 (Civ.
App.-Fort Worth 1979, no writ)-claim by heir for value of property wrongfully conveyed by representative held to have been barred and to have required presentment.
(n87)Footnote 88. Prob. C. § 3(o); see Ch. 11, Intestate Succession.
(n88)Footnote 89. Prob. C. § 3(s); see also Prob. C. § 3(h), (i)-term ''devisee'' includes legatees.
(n89)Footnote 90. Bandy v. First State Bank, Overton, Tex., 35 Tex. Sup. Ct. J. 843, 835 S.W.2d 609, 617-622 (Tex. 1992) .

Elder abuse coming out of the closet

Elder abuse coming out of the closet

VINCE TALOTTA/TORONTO STAR

Lisa Manuel is the leader of the elder abuse team at Family Service Toronto.(Nov. 12, 2008)

THE SERIES
Toronto journalist Judy Steed has been writing about social issues for 30 years. Last fall, she embarked on a one-year project to document the most pressing policy implications of our aging society as part of the 2008 Atkinson Fellowship in Public Policy.
She has visited dozens of nursing homes and interviewed hundreds of health-care workers, policy-makers and seniors to present this weeklong portrait.
Main page | Series schedule

November 12, 2008

JUDY STEED
SPECIAL TO THE STAR

"On the topic of elder abuse, society is back where we were with woman abuse in the 1970s," says Lisa Manuel, whose Family Service Toronto team provides counselling to seniors and their caregivers.

"Elder abuse is such a hidden problem, such a sensitive issue," but more seniors are ready to bring it out of the closet, she says.

Earlier this fall, the Family Service Toronto opened Pat's Place, a bachelor apartment to act as a safe haven for abused elders.

But Ontario "hasn't developed the capacity to work with older abused people," Manuel says. "Family Service Toronto is the only agency that has a safe haven for seniors. We've got the expertise and we collaborate with the Advocacy Centre for the Elderly (legal aid clinic). They will call us and make referrals to assist their clients."

A woman may have been abused by her husband; when he dies, his adult children may continue perpetrating the abuse. "Maybe they were abused too, and blame the mother. The mother feels guilty. We're often dealing with generational trauma."

Admitting to being a victim is hard. "People are ashamed they've `let' it happen. They think they're to blame."

Experts estimate that at least 10 per cent of seniors are abused. "What we're seeing is that, year over year, more elders are identifying that, `this isn't right,' and they're reaching out for help."

Primarily, Manuel's team deals with abuse perpetrated by adult children on their parents. The abuse can be physical, psychological, emotional, medical, financial or plain neglect.

"Sometimes abused older women will say, `I gave birth to him, I did something wrong, I'm to blame, it's my fault, I'm the parent, I have to sacrifice myself.' The abusive adult child will think, in terms of financial abuse, `You're going to die anyway, I need the money now, I'm going to take it.'"

Once the money is gone, it's gone, Manuel says. "We have to catch the adult child selling the house out from under the older parent in order to get anything back."

Abuse of older adults was first identified by doctors in England in the 1970s, when an old woman was brought to a hospital with signs of physical abuse. Awareness spread of "granny bashing," and now, in the U.S., professionals are required to report signs of abuse – but not in Ontario. "Why is that?" Manuel asked. "There is an automatic requirement to report the abuse of children in Ontario, but not the abuse of older adults?"

The answer: Ageism is like racism and sexism; when it's all-pervasive, it results in a particular category of people being treated differently.

"It's insidious. Older people get a different reaction from society. If a 72-year-old is being abused, the system will question, `Is she reliable? Is she capable of making decisions?' Ageism undermines older people."

In some cases, adult children who have lost their jobs move back home with parents, expecting them to die, but when the parents live on, they may be abused.

"Victims are mostly mothers, but some fathers get abused," Manuel says.

Why doesn't the abused older parent do something?

Manuel understands the dynamics all too well: She also runs the violence against women team, and she sees similar issues in elder abuse: "The victim is usually dependent on the abuser, and can't imagine being free of the situation in which they're trapped." Just as an abused woman can't imagine being liberated from an abusive husband, "it's hard for a parent to sever a relationship with an adult child. It's difficult for them to think about what to do while embedded in the situation."

Hence the creation of Pat's Place, which opened in September, to give elderly victims a place to get emotional and physical distance from the problem, to get some sleep, some food, and to experience what it's like to be outside the abusive relationship. They can stay for up to 60 days, rent-free.

Pat's Place is modelled on a similar project in Edmonton, where the city provides seven apartment units for abused elders in a larger building.

In a year, Manuel's elder abuse team – up to six people – deals with 100 cases. They cover all of Toronto. The socio-economic status of victimized elders is "hugely variable. It happens in all walks of life. Some are on full pensions and lose all their money; cheques will be diverted to the point that the elder can lose their home. We've had to phone pension offices to report fraud, pension cheques being signed fraudulently."

If the elder abuse team has reason to believe an older adult is at risk of immediate harm, they can report the case to Ontario's Office of the Public Guardian and Trustee. "If we believe the older adult is not able to take care of themselves, an investigation will be launched."

If seniors want to continue the relationship with an abusive or domineering child, they do. "We see that as their decision."

If you need help, call 416-595-9618.

http://www.thestar.com/printArticle/535025

Texas Estate Case - Diamond v Diamond

DONALD M. DIAMOND AND ROGER A. DIAMOND, Appellants v. MAX M.

DIAMOND, Appellee

No. 01-89-00980-CV

COURT OF APPEALS OF TEXAS, First District, Houston

1991 Tex. App. LEXIS 151

January 17, 1991, Delivered

January 17, 1991, Filed

NOTICE: [*1] PURSUANT TO RULE 90 (i) OF THE TEXAS RULES OF APPELLATE PROCEDURE,

UNPUBLISHED OPINIONS SHALL NOT BE CITED AS AUTHORITY BY COUNSEL OR BY A

COURT.

PRIOR HISTORY: On Appeal from the Probate Court No. 1; Harris County, Texas; Trial Court Cause No.

199,489.

DISPOSITION: Judgment affirmed as reformed

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant sons challenged the judgment of the Probate Court No. 1 of Harris

County (Texas), which was rendered judgment in favor of appellee father in appellee's suit alleging fraud,

breach of fiduciary duty, and breach of the terms of trust, arising out of appellants' administration of a trust.

OVERVIEW: Appellant sons procured from their appellee father an irrevocable transfer of assets, and his

resignation as executor and trustee of the decedents estate. Thereafter, appellee filed an action against appellants

for wrongdoing arising from appellants' administration of the estate and appellee's personal assets. The trial

court granted appellee judgment based upon fraud, breach of fiduciary duty, and breach of the terms of trust.

Appellants challenged the trial court's judgment. On appeal, the court reformed the judgment to reflect a change

in the date from which prejudgment interest ran on the mental anguish award, and then affirmed the judgment

as reformed. The court found that prejudgment interest accrued beginning six months after the date the cause of

action accrued. The court found that there was evidence sufficient to support the jury's findings on all other

issues. Appellants' claim that the trial court erred in failing to award attorney's fees was waived because they

failed to request the trial court to make a finding on the bad faith issue of the Deceptive Trade Practices Act,

Tex. Bus. & Com. Code Ann. § 17.50(c) (1987).

OUTCOME: The court reformed the judgment to reflect a change in the date from which prejudgment interest

ran on the mental anguish award and affirmed the judgment as reformed because there was sufficient evidence to

support the jury's findings.

LexisNexis(R) Headnotes

Civil Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview

[HN1] In reviewing legal insufficiency or "no evidence" points, the reviewing court considers only the evidence

and inferences, when viewed in their most favorable light, that tend to support the finding, and disregards all

evidence and inferences to the contrary. An appellate court is limited to reviewing only the evidence tending to

support the jury findings in a "no evidence" point of error. If there is any evidence of probative force to support

the finding, the point must be overruled and the finding upheld.

Civil Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview

[HN2] "No evidence" points of error must be sustained when the record discloses one of the following: (1) a

complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving

weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more

than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact.

Civil Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview

[HN3] If there is more than a scintilla of evidence to support the jury finding, the no evidence challenge fails. A

"scintilla" of evidence is when the evidence offered to prove a vital fact is so weak that it does no more than

create a mere surmise or suspicion of its existence.

Civil Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview

[HN4] If reasonable minds cannot differ from the conclusion that the evidence offered to support the existence

of a vital fact lacks probative force, it is the legal equivalent of no evidence. If the evidence furnishes some

reasonable basis for differing conclusions by reasonable minds about the existence of the vital fact, it amounts

to more than a scintilla of evidence.

Civil Procedure > Appeals > Standards of Review > Clearly Erroneous Review

[HN5] In reviewing a factual insufficiency of the evidence point of error, the appellate court must first examine

all of the evidence, and, having considered and weighed all of the evidence, it should set aside the verdict only

if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it

is clearly wrong and unjust.The reviewing court of appeals may not disregard a finding that has factual support

or make a contrary finding in entering judgment for one of the parties.

Civil Procedure > Appeals > Standards of Review > Clearly Erroneous Review

[HN6] Because the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given

their testimony, the appellate court may not substitute its opinion for that of the trier of fact merely because it

might have reached a different fact conclusion.

Criminal Law & Procedure > Criminal Offenses > Inchoate Crimes > Conspiracy > Elements

Torts > Procedure > Multiple Defendants > Concerted Action > Civil Conspiracy > Elements

[HN7] The essential elements of a cause of action for civil conspiracy are: (1) two or more persons, (2) an object

to be accomplished, (3) a meeting of minds on the object or course of action, (4) one or more unlawful, overt

acts, and (5) damages as the proximate result. The agreement need not be formal; the understanding may be a

tacit one, and it is not essential that each conspirator have knowledge of the details of the conspiracy. Upon

entering a conspiracy, one becomes a party to all acts previously or subsequently done by any of the other

conspirators in pursuit of the conspiracy. Each conspirator is responsible for the acts done by coconspirators in

pursuit of the conspiracy during its existence.

Torts > Damages > Compensatory Damages > Pain & Suffering > Emotional & Mental Distress >

General Overview

[HN8] The rule in Texas is that damages are recoverable for mental suffering, even if unaccompanied by

physical suffering, when the wrong complained of is a willful one, intended by the wrongdoer to produce

mental anguish or from which such result should be reasonably anticipated as a natural consequence.

Civil Procedure > Remedies > Damages > Punitive Damages

Torts > Damages > Punitive Damages > General Overview

[HN9] Exemplary damages must be reasonably proportioned to actual damages, and the determination of

exemplary damages depends upon the facts of each particular case, taking into consideration (1) the nature of the

wrong, the character of the conduct involved, the degree of the culpability of the wrongdoer, the situation and

sensibilities of the parties concerned, and the extent to which such conduct offends a public sense of propriety.

Civil Procedure > Trials > Jury Trials > Actions in Equity

Civil Procedure > Remedies > Damages > Punitive Damages

Torts > Damages > Punitive Damages > General Overview

[HN10] The amount of punitive damages to be awarded depends on the facts of the case and rests largely within

the discretion of the jury. In addition to items of actual damages, the court may take into account equitable

relief granted to the plaintiff.

Civil Procedure > Appeals > Standards of Review > Clearly Erroneous Review

Civil Procedure > Appeals > Standards of Review > Substantial Evidence > Sufficiency of Evidence

[HN11] An appellate court is not permitted to disregard the jury's answers to the issues merely because the

jury's reasoning in arriving at its figure may be unclear to it.

Civil Procedure > Appeals > Reviewability > Preservation for Review

[HN12] Where there is no argument or cited authority in support of a point of error, the point of error is

waived.

Estate, Gift & Trust Law > Trusts > Trustees > Duties & Powers > General Overview

Governments > Fiduciary Responsibilities

[HN13] In a fiduciary relationship, a party owes the principal the duties of good faith and candor, which

includes the general duty of full disclosure respecting matters affecting the principal's interests and a general

prohibition against the fiduciary's use of the relationship to benefit his personal interest, except with the full

knowledge and consent of the principal.

Contracts Law > Contract Conditions & Provisions > Exculpatory Clauses

Estate, Gift & Trust Law > Trusts > Beneficiaries > General Overview

Estate, Gift & Trust Law > Trusts > Trustees > Duties & Powers > General Overview

[HN14] The fundamental duties of a trustee include the use of skill and prudence which an ordinary capable and

careful person will use in the conduct of his own affairs, and loyalty to the beneficiaries of the trust. Neither can

an exculpatory provision in the trust instrument be effective to relieve the trustee of liability for action taken in

bad faith or for acting intentionally adverse or with reckless indifference to the interests of the beneficiary.

Civil Procedure > Remedies > Judgment Interest > Prejudgment Interest

Torts > Damages > Interest > Prejudgment Interest

Torts > Procedure > Statutes of Limitations > General Overview

[HN15] Under the Cavnar rule, prejudgment interest accrues beginning six months after the date the cause of

action accrues. The Cavnar rule has been applied to intentional tort and fraud cases.

JUDGES: Frank C. Price, 1 Justice. Justice Bass and Justice Bill Stephens 2 also sitting.

1 The Honorable Frank C. Price, former justice, Court of Appeals, First District of Texas at Houston,

sitting by assignment.

2 The Honorable Bill Stephens, retired justice, Court of Appeals, Fifth District of Texas at Dallas,

sitting by assignment.

OPINION BY: PRICE

OPINION

OPINION

This appeal arises from a suit by appellee, Max M. Diamond, against his two sons, appellants, Donald M.

Diamond ("Donald") and Roger A. Diamond ("Roger"), for wrongdoing related to the administration of his

deceased wife's estate, two trusts established under her will, and his own personal assets. Appellee recovered

against Donald on theories of fraud, undue influence, breach of fiduciary duty, and invasion of privacy; and

against Roger on conspiracy to self-deal and breach of the terms of trust.

Appellee recovered [*2] actual damages, exemplary damages, and attorneys fees. Appellee also recovered

declaratory relief setting aside certain instruments and transfer documents, ordering distributions from the trust

funds, reimbursements to trust funds, and an accounting. More specifically, appellee received a joint and several

judgment against appellants in the sum of $ 250,000 for past mental anguish, with punitive damages against

Donald and Roger in the amount of $ 125,000 each. A remittitur reduced the punitive damages assessed against

Roger to $ 50,000. Prejudgment interest was awarded on the damages for mental anguish. Appellants were

ordered to reimburse the marital deduction trust $ 64,000 by Don and $ 45,325 by Roger. They were ordered to

reimburse the family trust $ 12,065 each.

Appellants do not contest the setting aside of the documents.

During 45 years of marriage, appellee and his first wife, Millie, had two sons, Roger and Donald, and

accumulated assets totaling approximately $ 6,000,000. In 1974, appellee suffered a heart attack. During the

recovery period, Donald helped his parents with their business and personal affairs and continued to so assist

his father after his mother died. In [*3] 1986, appellee executed a general power of attorney, appointing Donald

his attorney-in-fact.

On April 4, 1985, Millie died leaving a will. Appellee was appointed independent executor of Millie's

estate and trustee of two trusts, the marital deduction trust and the family trust. Millie's one-half of the estate,

approximately $ 3,000,000, went into the trusts (approximately $ 400,000 into the family trust and $

2,600,000 into the marital deduction trust). Appellee was the primary beneficiary of these trusts, and appellants

were the secondary beneficiaries.

The will provided that, under the marital deduction trust, the trustee was to make quarterly distributions to

the appellee out of the income from the trust assets and, such amounts of principal, as necessary, to provide for

appellee's health, support, and maintenance. It also provided that no income or principal of the marital

deduction trust should be distributed to any person other than appellee during his lifetime. Distributions from

the income and principal of the family trust were to be made to appellee and Millie's descendants for their

health, support, maintenance, and education, at the discretion of the trustee.

On May [*4] 17, 1987, appellee suffered a stroke in Galveston while at the beach with Allison Green, in

whom appellee was romantically interested. He was taken to an emergency room in Galveston and later

transported to Pasadena Bayshore Hospital. Donald asked appellee's doctor to have all but family excluded from

visiting appellee. On May 27, 1987, appellee was taken to Plaza del Oro hospital in Houston for further

recovery and rehabilitation.

Appellee testified that on or about June 9, 1987, he contacted attorney Jack Eckels about preparing a

prenuptial contract. On June 9, 1987, in appellee's hospital room, with Donald present, Eckels presented

appellee with three documents: (1) an irrevocable transfer of appellee's $ 3,000,000 of assets into the marital

deduction trust, (2) an application to resign as independent executor of Millie's estate, and (3) a resignation as

trustee from the two trusts and an acceptance of Donald as successor trustee of the two trusts. The transfer

document had not been discussed with appellee before June 9, 1987. It contained a provision eliminating

appellee's right to remove the new trustee. Appellee testified he thought he was signing the prenuptial

agreement.

[*5] Following the execution of the transfer document, appellee's name was removed from an account

containing estate assets, and Donald and Roger's names were added. Beginning January 26, 1988, Donald gave

Roger and his family $ 31,825 from the marital deduction trust and $ 50,000 to himself and his family.

Donald paid investigator and attorney fees arising from this litigation out of the marital deduction trust.

Appellee hired an attorney to assist him in eliminating what he perceived to be Donald's interference in his

personal life. He sought the return from Donald of some of his credit cards, an accounting of the assets and

transactions regarding the marital deduction trust, and to compel Donald to distribute to appellee the amounts

from the trust specified in the will.

Appellants' first point of error maintains the trial court erred in rendering judgment against Roger because

there is no evidence, and, alternatively, insufficient evidence to support the jury finding of civil conspiracy.

[HN1] In reviewing legal insufficiency or "no evidence" points, the reviewing court considers only the

evidence and inferences, when viewed in their most favorable light, that tend to support the finding, [*6] and

disregards all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522

(Tex. 1988); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987); Alm v. Aluminum Co. of America, 717 S.W.

2d 588, 593 (Tex. 1986); King v. Bauer, 688 S.W.2d 845, 846 (Tex. 1985). An appellate court is limited to

reviewing only the evidence tending to support the jury findings in a "no evidence" point of error. Sherman v.

First Nat'l Bank, 760 S.W.2d 240, 242 (Tex. 1988). If there is any evidence of probative force to support the

finding, the point must be overruled and the finding upheld. Id.; In re King's Estate, 150 Tex. 662, 664, 244

S.W.2d 660, 661 (1951).

[HN2] "No evidence" points of error must be sustained when the record discloses one of the following:

a. a complete absence of evidence of a vital fact;

b. the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a

vital fact;

c. the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or

d. the evidence establishes conclusively the opposite of a vital fact.

Otis Elevator Co. v. Joseph, 749 S.W.2d 920, 923 (Tex. [*7] App. -- Houston [1st Dist.] 1988, no writ).

[HN3] If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails.

Stafford, 726 S.W.2d at 16. A "scintilla" of evidence is when the evidence offered to prove a vital fact is so

weak that it does no more than create a mere surmise or suspicion of its existence. Kindred v. Con/Chem, Inc.,

650 S.W.2d 61, 63 (Tex. 1983).

[HN4] If reasonable minds cannot differ from the conclusion that the evidence offered to support the

existence of a vital fact lacks probative force, it is the legal equivalent of no evidence. If the evidence furnishes

some reasonable basis for differing conclusions by reasonable minds about the existence of the vital fact, it

amounts to more than a scintilla of evidence. Kindred, 650 S.W.2d at 63.

[HN5] In reviewing a factual insufficiency of the evidence point of error, the court of appeals must first

examine all of the evidence, Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986); and, having

considered and weighed all of the evidence, it should set aside the verdict only if the evidence is so weak or the

finding is so against the great weight and preponderance of the evidence that [*8] it is clearly wrong and

unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965);

Otis Elevator Co., 749 S.W.2d at 923. The reviewing court of appeals may not disregard a finding that has

factual support or make a contrary finding in entering judgment for one of the parties. Garza, 395 S.W.2d at

823.

[HN6] Because the trier of fact is the sole judge of the credibility of the witnesses and the weight to be

given their testimony, Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex. App. -- Houston [1st Dist.] 1984,

writ ref'd n.r.e.), the court of appeals may not substitute its opinion for that of the trier of fact merely because it

might have reached a different fact conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); Benoit v.

Wilson, 150 Tex. 273, 281, 239 S.W.2d 792, 797 (1951).

[HN7] The essential elements of a cause of action for civil conspiracy are: (1) two or more persons, (2) an

object to be accomplished, (3) a meeting of minds on the object or course of action, (4) one or more unlawful,

overt acts, and (5) damages as the proximate result. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.

1983). The agreement need not [*9] be formal; the understanding may be a tacit one, and it is not essential that

each conspirator have knowledge of the details of the conspiracy. Bourland v. State, 528 S.W.2d 350, 354 (Tex.

Civ. App. -- Austin 1975, writ ref'd n.r.e.). Upon entering a conspiracy, one becomes a party to all acts

previously or subsequently done by any of the other conspirators in pursuit of the conspiracy. Id. Each

conspirator is responsible for the acts done by coconspirators in pursuit of the conspiracy during its existence.

Harang v. Aetna Life Ins. Co., 400 S.W.2d 810, 818 (Tex. Civ. App. -- Houston 1966, writ ref'd n.r.e.).

In applying the Massey elements of conspiracy to the facts of this case, we find there were two persons,

Roger and Donald. There was evidence which showed the objects to be accomplished: (1) the distribution of

cash out of the marital deduction trust to themselves and their families, (2) the minimization of distributions

out of the trust funds to appellee that would have the effect of maximizing the amount of trust funds that would

pass to themselves upon appellee's death, and (3) the payment for the legal expenses of the defense of their

actions out of the marital deduction [*10] trust funds. There was evidence of a meeting of the minds on these

objectives between Roger and Donald when Roger testified he agreed with everything Donald did as trustee in

the case. Roger selected the attorneys to defend himself and Donald against appellee's lawsuit, further

evidencing his agreement with Donald on the objectives to be accomplished. Roger met the requirement of one

or more overt unlawful acts by receiving the cash gifts and financing his legal defense from the marital

deduction trust fund when the terms of the trust specified that no person other than appellee was to receive

payments out of those funds during appellee's lifetime. The element of damages is met by the jury's finding,

which appellants do not dispute, of $ 225,139 in distributions that Donald should have made to appellee.

Thus, we find there was more than a scintilla of evidence to support the jury's finding of conspiracy on

Roger's part. Concerning appellants' factual insufficiency of the evidence challenge, we have examined all the

evidence, including that favorable to appellants, weighed it, and do not find the evidence supporting the jury's

finding of conspiracy so against the great weight and preponderance [*11] of the evidence that it is clearly

wrong and unjust.

We overrule appellants' first point of error.

In their second point of error, appellants contend the trial court erred in awarding appellee damages for

mental anguish, claiming there was no or insufficient evidence to support the jury finding of damages for past

mental anguish because it was not consistent with other jury findings, or, alternatively, it was excessive, and

the Court should suggest a remittitur.

[HN8] The rule in Texas is that damages are recoverable for mental suffering (even if unaccompanied by

physical suffering) when the wrong complained of is a willful one, intended by the wrongdoer to produce

mental anguish or from which such result should be reasonably anticipated as a natural consequence. Kramer v.

Downey, 680 S.W.2d 524, 525 (Tex. App. -- Dallas 1984, writ ref'd n.r.e.). Quoting from Trevino v.

Southwestern Bell Tel. Co., 582 S.W.2d 582, 584 (Tex. Civ. App. -- Corpus Christi, 1979, no writ) the court,

in Teledyne Exploration Co. v. Klotz, 694 S.W.2d 109, 112 (Tex. App. -- Corpus Christi 1983, writ ref'd

n.r.e.), described mental anguish as:

'Implying a relatively high degree of mental pain and distress. [*12] It is more than mere disappointment,

anger, resentment or embarrassment, although it may include all of these. It includes a mental sensation of

pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame,

despair and/or public humiliation.'

Tim Blacklock, a medical attendant who cared for appellee after appellee left the hospital to recuperate at

home, testified that, upon being hired, Donald told him that Allison Green was not to contact appellee. Later,

Donald asked Tim how appellee was doing with his exercising and therapy. Tim told Donald, when appellee

was denied the opportunity to see Green, he was depressed and did not have the initiative to go on, but when

he saw her it made him strive to get better. Tim testified, at this time, Donald was considering letting appellee

see Green again. Tim also testified that the arguments appellee had with his son and his concern over his

finances kept appellee depressed.

Olga Villareal, another of appellee's nursing aides, during his recuperation at home, testified that in a

telephone conversation with Donald, appellee got upset about Donald having appellee's credit cards. She heard

appellee [*13] tell Donald that he wanted him to stop interfering with his affairs. Villareal also testified

appellee "really got upset" about a mink coat that he had bought for Green, which she had returned. Appellee

wanted to give it back to Green, but said Donald lied to him saying he had disposed of it.

Appellee's doctors told his family it was important to his treatment to remember appellee was an adult and

needed the opportunity to control his own life. Appellee was concerned over Donald's control of his life and

Donald's restrictions of his movements that prevented him from leaving his house. Appellee testified that

Donald told him he had full control of him. Appellee's attorney testified appellee told him Donald claimed that

he was appellee's guardian. One witness, who talked to appellee in the late fall of 1987, said appellee was sad

and said "I don't have control. Donny has power of attorney." Appellee wrote Donald to describe his negative

feelings toward him and to tell him if he came around appellee's house anymore or opened his mail anymore he

would report him to the authorities.

On taking the witness stand, appellee testified he was upset. He testified Donald's freezing of his assets

[*14] had humiliated him. Appellee stated he had not seen his grandchildren lately because "there's such hatred

in my heart for these boys that I can't go there and try to converse decently with them."

As in the Teledyne case, where the plaintiff said he felt "violated" when his land was bulldozed without his

consent, we feel the evidence of appellee's feelings of loss of control of his life, as well as the other evidence

discussed above, reflect that degree of mental pain, severe disappointment, and indignation sufficient to support

the jury's verdict. See Teledyne, 694 S.W.2d at 112.

The fact that the jury found past mental anguish but not future mental anguish is not a conflict in the jury's

verdict. The jury evidently concluded there was sufficient evidence of past mental anguish, but were not

convinced appellee would suffer future mental anguish from Donald's and Roger's actions.

Concerning appellants' request for a remittitur, we have reviewed all of the evidence and cannot say that the

award is so excessive as to shock the conscience of this Court. Dover Corp. v. Perez, 587 S.W.2d 761, 768

(Tex. Civ. App. -- Corpus Christi 1979, writ ref'd n.r.e.). See also Mahan Volkswagen, [*15] Inc. v. Hall,

648 S.W.2d 324, 334 (Tex. App. -- Houston [1st Dist.] 1982, writ ref'd n.r.e.).

We overrule appellants' second point of error.

Appellants contend in their third point of error that the trial court erred in awarding appellee punitive

damages against appellants.

[HN9] It has been held exemplary damages must be reasonably proportioned to actual damages, and the

determination of exemplary damages depends upon the facts of each particular case, taking into consideration

(1) the nature of the wrong, the character of the conduct involved, the degree of the culpability of the

wrongdoer, the situation and sensibilities of the parties concerned, and the extent to which such conduct offends

a public sense of propriety. Wright v. Gifford-Hill & Co., Inc., 725 S.W.2d 712, 714 (Tex. 1987). [HN10] The

amount of punitive damages to be awarded depends on the facts of the case and rests largely within the

discretion of the jury. See Voskamp v. Arnoldy, 749 S.W.2d 113, 121 (Tex. App -- Houston [1st Dist.] 1987,

writ denied). In addition to items of actual damages, the court may take into account equitable relief granted to

the plaintiff. Fillion v. Troy, 656 S.W.2d 912, 915 (Tex. App. -- Houston [*16] [1st Dist.] 1983, writ ref'd

n.r.e.).

The jury found actual damages to appellee of $ 250,000 for mental anguish and that Roger and Donald

should reimburse the trusts in the amount of $ 133,455. Neither Roger nor Donald challenged the jury's

findings that they breached the terms of the marital deduction and family trusts. They do not contest the setting

aside of the three documents that allowed Donald to take control of $ 6,000,000. Considering the evidence that

within weeks of appellee having a serious stroke, and while he was still recuperating in the hospital, Donald

fraudulently obtained appellee's signature allowing the transfer of all asset documents and authorizing Donald's

and Roger's actions thereafter, in their giving and receiving large gifts from the trusts, their interference with

appellee's personal life, and the wrongful invasion of the trust for their own legal fees, we cannot say the

amount of punitive damages awarded by the jury was excessive.

We overrule appellants' third point of error.

In their fourth point of error, appellants contend the trial court erred in paragraph 10 and 11 of the

judgment in ordering appellants, Donald and Roger, to reimburse respectively [*17] $ 64,000 and $ 45,325 to

the marital deduction trust. Specifically, appellants argue that since the gifts to Donald's family out of the

marital deduction trust fund only amounted to $ 50,000 and the gifts to Roger's family only amounted to $

31,825, there is no evidence or insufficient evidence to support the jury's verdict and the judgment awarding the

higher amounts.

Appellee introduced into evidence a list of disbursements on the Merill Lynch account of the marital

deduction trust. It showed payments of $ 12,974.46 to Donald and his company, D&M Enterprises, from July

17, 1988, through January 28, 1989. The jury heard evidence that Donald was paying himself a fee for the years

1987, 1988, and 1989 for managing appellee's financial affairs. Based on the irrevocable transfer of all of

appellee's assets to Donald's control his failure to pay income from the trust to appellee until he hired an

attorney, the freezing of appellee's accounts, and other activities of Donald after June 9, 1987, the jury could

very well have concluded that Donald was no longer acting on behalf of appellee, but, instead, for himself, and

therefore, Donald should reimburse those fees to the marital deduction [*18] trust.

The jury also heard evidence that both Donald and Roger were paying their own attorney's fees out of the

marital deduction trust. The jury could have concluded that Donald and Roger should return that money to the

trust since the terms of the will relating to distributions from the marital deduction trust could be made only to

appellee during his lifetime. The amount of money taken out of the marital deduction trust fund by Donald and

Roger for payment of their own legal fees from June 14, 1988, to January 24, 1989, was $ 23,500, and there

was an additional $ 4,883.34 paid to investigators hired on their behalf to assist in the preparation of their

defense in this action.

[HN11] We are not permitted to disregard the jury's answers to the issues merely because the jury's

reasoning in arriving at its figure may be unclear to us. Adams v. Petrade Intern. Inc., 754 S.W.2d 696, 710

(Tex. App. -- Houston [1st Dist.] 1988, writ denied). We hold there was evidence sufficient to support the

jury's answers concerning the amount of money to be reimbursed to the marital deduction trust fund by Donald

and Roger. We overrule appellants' fourth point of error.

In the fifth point of error, Donald [*19] challenges the sufficiency of the evidence to support the jury's

affirmative answers to jury questions 2(a), that Donald unduly influenced appellee on June 9, 1987; to 2(b),

that Donald constructively defrauded appellee on June 9, 1987; to 2(d) that Donald breached his fiduciary duty;

and to 2(e) that Donald engaged in self-dealing. Donald and Roger both complain the trial court erred in

rendering judgment against them for punitive damages based on findings of malice.

Donald does not challenge the sufficiency of the evidence to support the jury's answers to questions 2(c),

that he committed common law fraud on June 9, 1987; 2(f), that he invaded appellee's privacy, or 2(g), that he

breached the terms of the trust. In the brief, Donald presents no argument, authorities, or references to the

statement of facts concerning the issues of undue influence or constructive fraud. [HN12] Where there is no

argument or cited authority in support of a point of error, the point of error is waived. See J. B. Custom Design

and Bldg. v. Clawson, 794 S.W.2d 38, 41 (Tex. App. -- Houston [1st Dist.] 1990, no writ). Thus, the portions

of Donald's fifth point of error related to these issues where there is [*20] no argument, no citation to

authority, nor citation to the record, are waived.

This leaves under the fifth point of error, the question of the sufficiency of the evidence to support the

jury's finding of Donald's breach of fiduciary duty, engagement in self-dealing, and the finding of malice by

Donald and Roger.

As trustee of the two trusts and executor of his mother's will, Donald was in a fiduciary relationship to

appellee. [HN13] In such a relationship, Donald owed appellee the duties of good faith and candor, which

includes the general duty of full disclosure respecting matters affecting the principal's interests and a general

prohibition against the fiduciary's use of the relationship to benefit his personal interest, except with the full

knowledge and consent of the principal. Chien v. Chen, 759 S.W.2d 484, 495 (Tex. App. -- Austin 1988, no

writ). As stated in Interfirst Bank Dallas, N.A. v. Risser, 739 S.W.2d 882, 888 (Tex. App. -- Texarkana 1987,

no writ):

[HN14] The fundamental duties of a trustee include the use of skill and prudence which an ordinary capable

and careful person will use in the conduct of his own affairs, and loyalty to the beneficiaries of the trust.

Neither can [*21] an exculpatory provision in the trust instrument be effective to relieve the trustee of

liability for action taken in bad faith or for acting intentionally adverse or with reckless indifference to the

interests of the beneficiary.

For over a year from the time Donald assumed the responsibility of trustee, he did not make the quarterly

distributions of income to appellee mandated by the terms of the will. It was not until appellee hired a lawyer

to make demands on Donald to make the distributions that Donald made some distributions to appellee of

some of the income of the marital deduction trust. Donald cut back the hourly wage of appellee's medical

attendant from $ 6.00 per hour to $ 5.50 per hour, saying there was not enough money to cover the expenses of

appellee's maintenance. However, he made $ 10,000 cash gifts out of the marital deduction trust to himself,

Roger, and their families. This had the effect of minimizing the income distribution to appellee. Donald

admitted he did not distribute to appellee all the income that had been earned from the marital deduction trust.

He paid out of the marital deduction trust funds, the legal fees to defend himself and Roger against appellee's

[*22] lawsuit for defrauding appellee of the control of appellee's assets.

Appellee's attorney asked Donald for supporting documentation concerning the assets in the trust and

transactions on the trust and received from Donald two grocery bags of bank statements. He did not receive

balance statements or any books on the trusts. The accounts were all commingled, and the records were

disorganized. Donald admitted he did not even know how much income per month was generated from the

marital deduction trust.

We hold there was sufficient evidence to support the jury's findings of breach of fiduciary duty, selfdealing,

and malice.

In their sixth point of error, appellants contend the trial court erred in its award of prejudgment interest for

mental anguish in the judgment.

The judgment awards prejudgment interest on the amount awarded for mental anguish commencing June 9,

1987, the date the fraud was committed. [HN15] Under the rule announced in Cavnar v. Quality Control

Parking, Inc., 696 S.W.2d 549, 555 (Tex. 1985), prejudgment interest accrues beginning six months after the

date the cause of action accrues. The Cavnar rule has been applied to intentional tort and fraud cases, Voskamp,

749 S.W.2d [*23] at 124. The cause of action in this case accrued June 9, 1987. Therefore, prejudgment

interest on damages for mental anguish began to accrue on December 9, 1987.

We sustain appellants sixth point of error.

In point of error seven, appellants contend the trial court erred in failing to award appellants' attorney's fees

for a groundless and bad faith or harassment suit under the Deceptive Trade Practices Act (DTPA), TEX. BUS.

& COM. CODE ANN. § 17.50(c) (Vernon 1987). Under Donwerth v. Preston II Chrysler-Dodge, Inc., 775

S.W.2d 634, 637 (Tex. 1989), the court must determine if the DTPA action was groundless, brought in bad

faith, and for the purposes of harassment. Appellants did not request the court to make a finding on the bad

faith DTPA issue. Therefore, they have waived any such claim. TEX. R. APP. P.52(a).

We overrule appellants seventh point of error.

We reform the judgment to reflect December 9, 1987, as the date from which prejudgment interest runs on

the mental anguish award and affirm the judgment as reformed.