NO. 12‐14‐00302‐CV

IN THE TWELFTH COURT OF APPEALS  

TYLER, TEXAS

CORRINE AUGUSTINE NICHOLS HILL SHEARER

Appellant

v.

DAVID SHEARER, INDIVIDUALLY AND AS THE INDEPENDENT

ADMINISTRATOR OF THE ESTATE OF JOHN WILLIAM SHEARER, III

Appellee

Appeal from the County Court at Law No. 2

Gregg County, Texas

BRIEF FOR APPELLEE

Carson R. Runge

Attorney for David Shearer

Sloan, Bagley, Hatcher & Perry Law Firm

101 East Whaley St., Longview, TX 75601

Phone: 903‐757.7000 ext.213  

Fax: 903‐757‐7574

State Bar Number: 24059262

Oral Argument Requested

ACCEPTED

12-14-00302-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

4/8/2015 2:16:51 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 4/8/2015 2:16:51 PM CATHY S. LUSK Clerk
i

Identity of Parties and Counsel

Appellant/Defendant:     Corrine Augustine Nichols Hill Shearer

Appellant’s Counsel:     J. Chad Parker

State Bar No: 15489000

cparker@theparkerfirm.net

Forrest F. Mays

State Bar No: 24072228

fmays@theparkerfirm.net

The Parker Firm, P.C.

3808 Old Jacksonville Rd.

Tyler, Texas 75701

(903) 595‐4541 ‐ telephone

(903) 595‐2864 ‐ facsimile

Appellee/Plaintiff: David Shearer, Individually, and as

Independent Administrator of the Estate

of John William Shearer, III

Appellee’s Counsel:       Carson Runge

       State Bar No. 24059262

crunge@sloanfirm.com

       Sloan, Bagley, Hatcher & Perry

101 East Whaley Street

Longview, Texas 75601

State Bar No. 24059262

Phone: 903‐757‐7000 ext.213  

Fax: 903‐757‐7574
ii

Table of Contents

Identity of Parties and Counsel..............................................................................i

Table of Contents ................................................................................................... ii

Table of Authorities .............................................................................................. iv

Statement of the case ..............................................................................................x

Issues Presented ......................................................................................................x

Standard of Review............................................................................................... xi

Statement of Facts ...................................................................................................1

Summary of the Argument..................................................................................11

Argument ...............................................................................................................15

I. Corrine Shearer Failed to Preserve Error by Failing to Request the

Inclusion of, and Failing to Object to the Omission of, the Additional

Three Factors that Form the Foundation of Her Legal and Factual

Sufficiency Challenges Regarding the Existence of an Informal

Fiduciary Duty. ...........................................................................................15

II. There Is Legally and Factually Sufficient Evidence Supporting the

Jury’s Unanimous Finding of the Existence of An Informal Fiduciary

Relationship Under the Court’s Charge..................................................21

III. Corrine Shearer’s Legal and Factual Sufficiency Points of Error are

Irrelevant Because the Factors Raised by Corrine Shearer in Her

Appeal are Not Required for the Creation of, or the Existence of, an

Informal Fiduciary Duty............................................................................29   
iii

IV. Alternatively, if This Court Holds that these Three Factors are

Required for the Creation of an Informal Fiduciary Duty, There is

Sufficient Evidence to Support the Trial Court’s Judgment. ...............34

V. Intentional Infliction of Emotional Distress Represents the Only

Available Cause of Action for David to Recover for Corrine Shearer’s

Wrongful Disposition of John Shearer’s Ashes......................................37

Prayer......................................................................................................................41

Certificate of Compliance ....................................................................................42

Certificate of Service .............................................................................................43
iv

Table of Authorities

Texas Supreme Court:

Allen v. American Natʹl Ins. Co.

380 S.W.2d 604 (Tex. 2014).........................................................................15

Burbage v. Burbage

447 S.W.3d 249 (Tex. 2014)...................................................................15, 20

Cain v. Bain

709 S.W.2d 175 (Tex. 1986)......................................................................... xi

Crim Truck & Tractor Co. v. Navistar Intʹl Transp. Corp.

823 S.W.2d 591(Tex. 1992)......................................................................... xi

Evanston Ins. Co. v. Legacy of Life, Inc.

370 S.W.3d 377 (Tex. 2012).........................................................................38

Fitz‐Gerald v. Hul

237 S.W.2d 256 (Tex. 1951).........................................................................29

Hoffmann‐La Roche, Inc. v. Zeltwanger

144 S.W.3d 438 (Tex. 2004)...................................................................38, 41

International Bank, N.A. v. Morales  

36 S.W.2d 622 (Tex. 1987)........................................................................... xi

Kinzbach Tool Co. v. Corbett‐Wallace Corp.

160 S.W.2d509 (Tex. 1942)..........................................................................30

Larson v. Cook Consultants, Inc.

690 S.W.2d 567 (Tex. 1985).........................................................................15
v

Lofton v. Texas Brine Corp.

720 S.W.2d 804 (Tex. 1986)......................................................................... xi

Merrell Dow Pharm., Inc. v. Havner

953 S.W.2d 706 (Tex. 1997)......................................................................... xi

Meyer v. Cathey

167 S.W.3d 327 (Tex. 2005)................................................................... 31‐32

Mills v. Gray  

210 S.W.2d 985 (Tex. 1948).........................................................................30

Osterberg v. Peca,  

12 S.W.3d 31 (Tex. 2000).......................................................................15, 20

Salinas v. Salinas

365 S.W.3d 318(Tex. 2012)..........................................................................15

Schlumberger Tech. Corp. v. Swanson

959 S.W.2d 171 (Tex. 1997).........................................................................32

Sherman v. First Natʹl Bank

760 S.W.2d 240 (Tex. 1988)........................................................................ xi

Standard Fruit and Vegetable Co. v. Johnson

985 S.W.2d 62 (Tex. 1998)...........................................................................38

Tex. Bank & Trust Co.

595 S.W.2d 502 (Tex. 1980)...................................................................31, 33

Thigpen v. Locke

363 S.W.2d 247 (Tex. 1962)...................................................... xii, 30, 32, 33
vi

Valenzuela v. Aquino

853 S.W.2d 512(Tex. 1993)..........................................................................39

Wal‐Mart Stores, Inc. v. Sturges,

52 S.W.3d 711(Tex. 2001)............................................................................16

Texas Courts of Appeal:

Beaumont v. Basham

205 S.W.3d 608 (Tex. App.—Waco 2006)................................................16

Crounse v. State Farm Mut. Auto. Ins. Co.

336 S.W.3d 717 (Tex. App.—Houston [1st Dist.] 2010)........................16

Dorton v. Chase

262 S.W.3d 396 (Tex. App.—Waco 2008).................................................16

Eagle Oil & Gas Co. v. TRO‐X, L.P.

416 S.W.3d 137 (Tex. App.—Eastland 2013)...........................................15

Editorial Caballero, S.A. de C.V. v. Playboy Enters., Inc.

359 S.W.3d 318 (Tex. App.—Corpus Christi 2012) ................................15

Garza v. Cantu

431 S.W.3d 96 (Tex. App.—Houston [14th Dist.] 2013)  ......................15

Harstan, Ltd. v. Kim,  

441 S.W.3d 791 (Tex. App.—El Paso 2014)........................................16, 20

Hatton v. Turner

622 S.W.2d 450 (Tex. Civ. App.—Tyler 1981).........................................33
vii

Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc.

201 S.W.3d 272 (Tex. App.—Houston [14th Dist.] 2006) ................16, 17

Holland v. Lesesne

350 S.W.2d 859 (Tex. Civ. App.—San Antonio 1961)............................33

Hunter v. PriceKubecka, PLLC

339 S.W.3d 795 (Tex. App.—Dallas 2011) ...............................................16

In re Estate of Bean

206 S.W.3d 749 (Tex. App.—Texarkana 2006).......................................16

In the Interest of A.M.

385 S.W.3d 74 (Tex. App.—Waco 2012)...................................................15

Internacional Realty, Inc. v. 2005 RP West, Ltd.

449 S.W.3d 512 (Tex. App.—Houston [1st Dist.] 2014).........................15

Janssen Pharmaceutica, Inc. v. Martinez,  

296 S.W.3d 634 (Tex. App.—El Paso 2009)..............................................16

Levine v. Steve Scharn Custom Homes, Inc.

448 S.W.3d 637 (Tex. App.—Houston [1st Dist.] 2014).........................15

Lee v. Dykes, 312 S.W.3d 191

(Tex. App.—Houston [14th Dist.] 2010)..................................................16

Lee v. Hasson

286 S.W.3d 1 (Tex. App.—Houston [14th Dist.] 2007) ....................16, 33

Lundy v. Masson

260 S.W.3d 482(Tex. App.—Houston [14th Dist.] 2008) .......................16
viii

Meek v. Onstad

430 S.W.3d 601(Tex. App.—Houston [14th Dist.] 2014) .......................15

Oliva v. Davila

   373 S.W.3d 94 (Tex. App.—Dallas 2011) .................................................15

Pope v. Darcey

667 S.W.2d 270 (Tex. App.—Houston [14th Dist.] 1984) ......................32

Priebe v. AʹHearn,  

2011 Tex. App. LEXIS 2542, *15 (Tex. App.—Houston  

[1st Dist.] Apr. 6, 2011)(Mem. op.) ...........................................................40

Rhey v. Redic,

408 S.W.3d 440 (Tex. App.—El Paso 2013)..............................................15

Texas First Nat. Bank v. Ng

167 S.W.3d 842 (Tex. App.—Houston [14th Dist.] 2005) ................17, 20

Trostle v. Trostle

77 S.W.3d 908 (Tex. App.—Amarillo 2002)...................................... 32‐33

Vanderpool v. Vanderpool

442 S.W.3d 756 (Tex. App.—Tyler 2014)................................................ xii

Young v. Fawcett

376 S.W.3d 209 (Tex. App.—Beaumont 2012) ........................................30

Statutes

Texas Health & Safety Code

§ 166.039(b) ..................................................................................................22

§ 711.002 .......................................................................................................38
ix

Texas Rules of Civil Procedure:

272, 274, 278, 279 ........................................................................................15
x

Statement of the Case

Corrine Augustine Nichols Hill Shearer appeals the judgment against her

from the County Court at Law No. 2, in Gregg County. David Shearer,

Appellee, obtained a jury verdict on three causes of action he brought

against Corrine Shearer. First, the jury unanimously found that Corrine

Shearer breached the informal fiduciary duty that she owed Mr. David

Shearer. The jury awarded $35,000 in mental anguish damages. After

unanimously finding that Corrine Shearer acted with malice in breaching

her fiduciary duty towards Mr. David Shearer, the jury unanimously

awarded $10,000 in exemplary damages. Lastly, the jury found that Corrine

Shearer intentionally inflicted emotional distress on Mr. David Shearer by

wrongfully disposing of David Shearer’s ashes. The jury awarded Mr.

David Shearer $1,500 in mental anguish. After various post‐trial motions,

the trial court entered judgment on the verdict.  

Issues Presented

1. When Appellant failed to request the inclusion of, and failed to

object to the omission of, certain factors in the jury charge

concerning the existence of an informal fiduciary duty, did

Appellant waive her ability to assert a legal and factual

sufficiency challenge on such factors?

2. Was there legally and factually sufficient evidence that a

relationship of trust and confidence existed as charged by the

Court?

3. If Appellant preserved error, are the three factors raised by

Appellant required to establish the existence of an informal

fiduciary duty?  
xi

4. Was there an alternative theory of recovery that David Shearer

could have recovered under other than an intentional infliction of

emotional distress claim when there is no fair market value of

bodily remains thereby precluding a conversion claim for the

destruction of his father’s ashes?

STANDARD OF REVIEW

When conducting a legal sufficiency of the evidence review, an

appellate court considers only the evidence and inferences which tend to

support the lower court’s findings and disregards all evidence and

inferences to the contrary. International Bank, N.A. v. Morales, 736 S.W.2d

622, 624 (Tex. 1987). If the evidence at trial furnishes some reasonable basis

for reasonable minds to reach different conclusions on the existence of the

vital fact, the evidence amounts to more than a scintilla of evidence, and

the no evidence challenge fails. Sherman v. First Natʹl Bank, 760 S.W.2d 240,

242 (Tex. 1988). When the evidence offered to prove a vital fact is more

than a mere scintilla, an appellate court must overrule a no evidence point

of error. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).

When conducting a factual sufficiency of the evidence review, the

reviewing court examines all of the evidence. Lofton v. Texas Brine Corp., 720
xii

S.W.2d 804, 805 (Tex. 1986). A verdict can only be set aside when the

evidence is so weak that the verdict is clearly wrong and manifestly unjust

in light of all of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  

In Texas, the existence of an informal fiduciary relationship—also

known as a confidential relationship—is a question of fact for the factfinder

to answer. Crim Truck & Tractor Co. v. Navistar Intʹl Transp. Corp., 823

S.W.2d 591, 594 (Tex. 1992); Vanderpool v. Vanderpool, 442 S.W.3d 756, 765

(Tex. App.—Tyler 2014, no pet.) (citing Thigpen v. Locke, 363 S.W.2d 247, 253

(Tex. 1962)). Whether an informal fiduciary relationship was created “is

determined from the actualities of the relationship between the persons

involved.” Thigpin v. Locke, 363 S.W.2d at 253.  
1 

STATEMENT OF FACTS

In 1990, John Shearer married Corrine Augustine Nichols Hill

Shearer (Corrine Shearer), Appellant. 4 RR 34. David Shearer, Appellee, is

John Shearer’s son from a previous marriage. 4 RR 34. On February 1, 2008,

John Shearer and Corrine Shearer legally divorced in Gregg County, Texas.

4 RR 35; Pl’s Ex. 7. They never remarried, and were not common law

married after their divorce. 5 RR 35‐43, 48‐50.    They continued to live

together in the same house after their divorce until John Shearer was

hospitalized. 4 RR 35.  

On November 2, 2009, John Shearer fell ill and went to the Overton

Brooks VA Medical Center (“Overton VA”) in Shreveport, Louisiana. 4 RR

43. Corrine Shearer accompanied him to the hospital. 4 RR 43. On the

second day of John Shearer’s three (3) day stay at the Overton VA, medical

personnel found out that Corrine Shearer was John Shearer’s ex‐wife. 4 RR

39, 44‐46; Pl’s. Ex. 2‐85, 8 RR 91.  Corrine was informed by a social worker

at the Overton VA that because she was John Shearer’s ex‐wife, she did not

have any legal authority to make medical decisions on John Shearer’s
2 

behalf. 4RR 46‐47; Pl’s. Ex. 2‐85; 8 RR 91. Corrine Shearer had a document

faxed to the Overton VA which expressly provided that she had no

authority to make medical decisions on John Shearer’s behalf.  4 RR 47‐48;

Pl’s. Ex. 2‐85; 8 RR 91. Moreover, the social worker informed Corrine

Shearer that the person that had the legal authority to make those decisions

was David Shearer. 4 RR 47‐48; Pl’s. Ex. 2‐85; 8 RR 91. As such, Corrine

Shearer gave the social worker David Shearer’s cell phone number. 4 RR

52; Pl’s. Ex. 2‐85; 8 RR 91.  

The social worker called David Shearer and left him a message

informing him he had the authority to make medical decisions on behalf of

his father, John Shearer. 4 RR 48; Pl’s. Ex. 2‐85; 4 RR 211.  Corrine Shearer

and David Shearer also spoke over the phone, and Corrine Shearer

confirmed that David Shearer had the right to make medical decisions on

John Shearer’s behalf. 4 RR 211. Soon thereafter, John Shearer was

transferred to the Houston Michael E. DeBakey VA Medical Center

(“Houston VA”). 4 RR 50.  
3 

Corrine Shearer traveled to the Houston VA where John Shearer was

transferred. 4 RR 83. Knowing that if the Houston VA found out that she

was John Shearer’s ex‐wife she would have no authority to make medical

decisions on behalf of John Shearer, Corrine Shearer represented to the

doctors, medical staff and hospitality personnel at the Houston VA that she

was John’s wife. 4 RR 75, 93, 95, 98; Pl’s. Ex. 3‐39; 8 RR 683. David Shearer

was unaware that Corrine Shearer was representing herself to doctors and

medical staff as his father’s wife. 4 RR 175.  

Just prior to John Shearer’s illness, David Shearer’s wife was

diagnosed with a brain tumor. 4 RR 56‐58, 155. A week prior to John

Shearer’s illness, David Shearer was involved in a recreational shooting

accident that resulted in part of his index finger being amputated. 4 RR 55‐

56, 58, 153‐155.  As a result of his own injury, David missed a week of work

at Aerosmith Aviation. 4 RR 56, 155. David Shearer was paid hourly, and

lost a week’s pay. 4 RR 155. Thus, while John Shearer was at the Houston

VA, David Shearer was not able to stay in Houston, or visit regularly,

because he was working to support his wife and three minor children, ages
4 

three, seven, and twelve. 4 RR 56‐57, 156. As such, David relied on Corrine

Shearer to relay the information she obtained from the doctors to him so

that he could make decisions concerning his father. 4 RR 59, 67‐68, 156‐57,

195, 198.  

David called Corrine Shearer almost on a daily basis, sometimes

multiple times a day, to get updates on his father’s condition. 4 RR 158; Pl’s

Ex. 6; Pl’s. Demonstrative Ex. 1; 8 RR 588 – 599 and 8 RR 601 ‐ 609.  David’s

cell phone number was 903‐261‐2471, Corrine’s cell phone number was

903‐452‐2956. 4 RR 52; Pl’s Ex. 6. David and Corrine Shearer spoke over 60

times during John Shearer’s 33 day stay at the Houston VA. 4 RR 53‐56; Pl’s

Ex. 6; Pl’s. Demonstrative Ex. 1; 8 RR 590 – 599 and 8 RR 601 ‐ 609. Corrine

Shearer also called David Shearer, initiating 19, nearly 1/3 of the phone

calls. 4 RR 174; Pl’s Ex. 6; Pl’s. Demonstrative Ex. 1; 8 RR 590 – 593, 8 RR

596, 8 RR 604 – 605 and 8 RR 608  ‐ 609. David and Corrine Shearer spoke

extensively on one topic, and one topic only: John Shearer’s medical

condition. 4 RR 55. Corrine Shearer provided David with updates

concerning John Shearer’s need for surgery, updates on John Shearer while
5 

he was in surgery, and the updates post‐surgery, in addition to relaying

any other information Corrine Shearer received from John Shearer’s

physicians. 4 RR 96‐97, 174. David Shearer, however, did not know that

Corrine Shearer was representing herself to be John Shearer’s wife and

making medical decisions on John Shearer’s behalf during his stay at the

Houston VA. 4 RR 175‐76.

David Shearer went to the Houston VA in late November to visit

with his father, met with physicians and to talk with Corrine Shearer. 4 RR

60‐63, 65‐66, 158, 160‐161. David Shearer discussed John Shearer’s future

medical care with the doctors, including the possibility of ordering a do‐

not‐resuscitate (DNR). 4 RR 160‐161. David Shearer and Corrine Shearer

also discussed the possibility of ordering a DNR in the future, including

that if that situation arose, Corrine Shearer would let David know and he

would make the decision to enter a DNR. 4 RR 59‐63, 65‐66, 161‐162, 191‐

192, 198, 211. David returned home and made arraignments with his

employer to be able to leave in the event he needed to make a decision

concerning issuing a DNR. 4 RR 165.  
6 

After David left Houston, Corrine Shearer repeatedly told David that

his father’s health was either improving or no worse. 4 RR 186‐187. She

even stated that John Shearer had made a “miraculous recovery.” 4 RR 65‐

66, 90, 162‐163. David continued to speak to Corrine Shearer almost every

day to check on his father’s health. 4 RR 53‐56, 67; Pl’s Ex. 6; Pl’s.

Demonstrative Ex. 1; 8 RR 602 ‐ 609. Corrine Shearer repeatedly told David

during these conversations that there was not much change in John

Shearer’s condition. 4 RR 186‐87.  

Sometime before 6:00p.m., on December 7, a physician explained to

Corrine Shearer that John Shearer would likely need lifelong hemodialysis,

may need ventilator support, and that it was now time to discuss “end of

life issues” and the possibility of withdrawing life sustaining  care. 4 RR 68‐

70; Pl’s. Ex. 3‐39; 8 RR 683. Corrine Shearer represented to the physician

that she needed to call family. 4 RR 70‐71; Pl’s. Ex. 3‐39; 8 RR 683. This

conversation occurred at or before 6:05 p.m. on December 7, 2009. 4 RR 70;

Pl’s. Ex. 3‐39; 8 RR    683. Just over an hour later, David Shearer called

Corrine Shearer and the two talked for over eleven (11) minutes. 4 RR 71‐
7 

73, 163; Pl’s Ex. 6; Pl’s Demonstrative 1; 8 RR 608.  At no point did Corrine

Shearer tell David about the conversation she had with the physician

regarding long term care, and the possibility of withdrawing or

deescalating John Shearer’s medical care. 4 RR 72‐73, 163‐64.

The next day, December 8, 2009, around 12:30 p.m., Corrine Shearer

informed John Shearer’s doctors that she wanted care withdrawn at this

time. Pl’s. Ex. 3‐16; 8 RR 772; 4 RR 73‐76, 104, 116. The doctors obeyed

Corrine Shearer’s orders and withdrew all care from John Shearer that

afternoon, including: (1) a ventilator, (2) all life sustaining medications, and

(3) all nutritional support. Pl’s Ex. 3‐16; 8 RR 772. All care was withdrawn

from John Shearer by 3:48 p.m. on December 8, 2009. Pl’s Ex. 3‐18; 8 RR 772.  

Pursuant to his usual routine, David Shearer called Corrine Shearer

around 6:00 p.m. on December 8, 2009 and the two spoke for over six (6)

minutes. Pl’s Ex. 6; Pl’s. Demonstrative Ex. 1; 8 RR 609; 4 RR 77‐79, 164‐165.

During that conversation, Corrine Shearer failed to mention to David

Shearer that she ordered all life sustaining machines, life sustaining

medications, and all nutritional support be withdrawn from John Shearer
8 

just hours before and that she had ordered the DNR. 4 RR 76‐79, 82, 127,

164‐165. As a result, John Shearer died alone, without the comfort of his

son, at 4:00 a.m. on December 9, 2009—approximately 16 hours after

Corrine Shearer had ordered the DNR and almost ten (10) hours after

Corrine Shearer failed to disclose to David what she had done. Pl’s Ex. 3—

8; 8 RR    679; 4 RR 78‐79, 82, 127, 164.    David Shearer never had an

opportunity to say goodbye to his father. 4 RR 86, 165‐166. Remarkably,

Corrine Shearer thinks David should feel guilty for not being able to say

goodbye to John before he died. 4 RR 86. Yet, she admits that David was

entitled to every piece of information that she could have told David. 4 RR

132.  

David Shearer was surprised to hear his father had passed away

because Corrine Shearer had told him that his father’s health was

improving. 4 RR 186‐187. Corrine Shearer never told David that she

ordered a DNR on John Shearer, nor did she ever inform David that she

had ordered all life sustaining machines, medications and nutrients be

withdrawn from John Shearer. 4 RR 83‐84, 165. David did not find out that
9 

Corrine Shearer had ordered all life sustaining care be withdrawn from his

father and ordered the DNR until he requested a copy of John Shearer’s

medical records. 4 RR 83‐84, 165.  

The day John Shearer died, Corrine Shearer, under no authority,

instructed the hospital to deliver John Shearer’s body to Cremate Texas,

Inc. so his body could be cremated. 4 RR 83, 211. Pursuant to Corrine

Shearer’s orders John Shearer’s body was cremated. 4 RR 83.

After learning that his father’s body was cremated David Shearer

informed Corrine Shearer of his intent to take his father’s ashes. 4 RR 84‐85.

Despite telling Corrine Shearer that he wanted his father’s ashes, Corrine

Shearer disposed of John Shearer’s ashes without the knowledge or consent

of David. 4 RR 84‐85, 204. David learned that Corrine Shearer had disposed

of his father’s ashes from his aunt. 4 RR 204.  

David Shearer as independent administrator of his father’s estate

brought claims against Corrine Shearer for invasion of John Shearer’s

privacy in private affairs, specifically concerning the decisions regarding

John Shearer’s medical care. David Shearer, in his individual capacity,
10 

brought additional causes of action against Corrine Shearer. David Shearer

sued Corrine Shearer for invasion of privacy, namely for making decisions

regarding his father’s medical care that were David’s to make, for Corrine

Shearer’s breach of the relationship of trust and confidence between the

two of them (informal fiduciary duty), and conversion of John Shearer’s

ashes. Additionally, David brought an action for intentional infliction of

emotional distress for disposing of John Shearer’s Ashes without David

Shearer’s consent or knowledge and disposing of them in manner directly

contrary to David Shearer and John Shearer’s wishes.

The case was tried by a jury. At the close of evidence Corrine Shearer

moved for, and was awarded, a directed verdict on David’s conversion

claim. 5 RR 15‐16. All other claims were submitted to the jury. The jury

unanimously found that an informal fiduciary relationship existed between

David Shearer and Corrine Shearer and the jury unanimously found that

Corrine Shearer breached her informal fiduciary duty to David.

Accordingly, the jury awarded David Shearer $35,000.00 for mental

anguish. Further, the jury unanimously found that Corrine Shearer acted
11 

with malice in breaching her informal fiduciary duty and unanimously

awarded $10,000.00 in exemplary damages. Additionally, the jury found

that Corrine Shearer intentionally inflicted emotional distress on David

through her taking and disposing of John Shearer’s ashes. The jury

awarded $1,500 in damages.  

The trial court denied Corrine Shearer’s Motion to Disregard Certain

Jury Findings and her J.N.O.V. Corrine Shearer then filed a Motion to Set

Aside Judgement and for New Trial. The trial court denied her motions.  

SUMMARY OF THE ARGUMENT

The jury unanimously found that an informal fiduciary relationship

existed between Mr. David Shearer, Appellee, and Corrine Shearer,

Appellant, and the trial court entered judgement on that finding. The jury

also unanimously found that Ms. Corrine Shearer maliciously breached her

informal fiduciary duty. Importantly, Appellant does not raise any point

on appeal concerning the jury’s unanimous finding that Ms. Corrine

Shearer maliciously breached her fiduciary duty. Instead, Appellant

contends that there was insufficient evidence of the existence of an
12 

informal fiduciary duty between herself and David Shearer.  Yet, Corrine

Shearer failed to preserve error for her no evidence grounds. Corrine

Shearer appeals the jury’s unanimous finding of the existence an informal

fiduciary relationship on the grounds that there is legally and factually

insufficient to establish that: (1) a relationship of trust existed prior to and

apart from the basis of David’s cause of action; (2) David “was accustomed

to receiving judgment or advice from Corrine,” and (3) Corrine Shearer

was not in a position of “dominance on one side” coupled with “David’s

weakness,” on the other. Appellant’s Br. 7. The trial court’s jury charge,

however, did not define a fiduciary duty as requiring any of those three

factors. Corrine Shearer did not request that the trial court define, or

otherwise charge the jury, that the existence of an informal fiduciary duty

requires evidence of all (or any) of these three factors. Moreover, Corrine

Shearer did not object to the omission of any of these factors from the trial

court’s charge. In fact, the language used by the court in instructing the

jury on an informal fiduciary relationship is substantially the same as the

language Corrine Shearer requested. Def’s. Proposed Charge, 5; Jury
13 

Charge, 7. As a result, Corrine Shearer failed to preserve error on these

grounds. Accordingly, any legal or factual sufficiency review should be

based on the Court’s charge.  

Plaintiff, however, does not read Corrine Shearer’s Appellant brief as

alleging that there is legally or factually insufficient evidence of the

existence of an informal fiduciary duty under the trial court’s charge.

Because Corrine Shearer failed to preserve error, and because Corrine

Shearer does not argue that there is legally or factually insufficient

evidence of the existence of an informal fiduciary relationship under the

trial court’s charge, there is no need for this Court to conduct a legal and/or

factual sufficiency review of the jury’s unanimous finding. However, if this

Court does finds that Corrine Shearer properly raised her factual and legal

sufficiency points under the charge provided to the jury, there is legal and

factually sufficient evidence supporting the jury’s unanimous finding.  

Alternatively, if this court finds Corrine Shearer preserved error, her

legal and factual sufficiency points of error are irrelevant as the three

factors relied upon by Corrine Shearer are not required for the creation
14 

and/or existence of an informal fiduciary relationship. As the three factors

are not required, insufficient evidence for any or all of them do not render

the jury verdict improper.

Next, if this Court holds that the three factors are required for the

creation and/or existence of an informal fiduciary duty, the record

establishes that the jury had sufficient evidence to find an informal

fiduciary relationship existed prior to and apart from the basis of David’s

cause of action, that David was accustomed to receiving judgment or

advice, and that Corrine Shearer was in a position of power over David.

Finally, the trial court correctly allowed David Shearer to recover on

his claim for intentional infliction of emotional distress because no other

tort remedy for mental anguish pertaining to the disposal of John Shearer’s

ashes was available.  
15 

ARGUMENT

I. Corrine Shearer Failed to Preserve Error by Failing to Request the

Inclusion of, and Failing to Object to the Omission of, the Additional

Three Factors that Form the Foundation of Her Legal and Factual

Sufficiency Challenges Regarding the Existence of an Informal

Fiduciary Duty.

An appellate court reviews the evidence in light of the charge given

to the jury. Burbage v. Burbage, 447 S.W.3d 249, 260 (Tex. 2014). That is, the

trial court’s charge sets the standard for legal and factual sufficiency

review. Id. “[I]t is the courtʹs charge, not some other unidentified law, that

measures the sufficiency of the evidence when the opposing party fails to

object to the charge.ʺ TEX. R. CIV. P. 272, 274, 278, 279; Osterberg v. Peca, 12

S.W.3d 31, 55 (Tex. 2000).1 

 1

 See also Burbage v. Burbage, 447 S.W.3d at 260; Salinas v. Salinas, 365 S.W.3d 318, 321

(Tex. 2012); Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex. 1985); Allen v.

American Natʹl Ins. Co., 380 S.W.2d 604, 609 (Tex. 1964); Internacional Realty, Inc. v. 2005

RP West, Ltd., 449 S.W.3d 512, 532 (Tex. App.—Houston [1st Dist.] 2014, pet. denied);

Levine v. Steve Scharn Custom Homes, Inc., 448 S.W.3d 637, 649 (Tex. App.—Houston [1st

Dist.] 2014, pet. filed); Meek v. Onstad, 430 S.W.3d 601, 608 (Tex. App.—Houston [14th

Dist.] 2014, no pet.); Eagle Oil & Gas Co. v. TRO‐X, L.P., 416 S.W.3d 137, 148 (Tex. App.—

Eastland 2013, pet. granted); Garza v. Cantu, 431 S.W.3d 96, (Tex. App.—Houston [14th

Dist.] 2013, pet. denied); Rhey v. Redic, 408 S.W.3d 440, 452 (Tex. App.—El Paso 2013, no

pet.); In the Interest of A.M., 385 S.W.3d 74, 81(Tex. App.—Waco 2012, no pet.); Editorial

Caballero, S.A. de C.V. v. Playboy Enters., Inc., 359 S.W.3d 318, 329 (Tex. App.—Corpus

Christi 2012, pet. denied); Oliva v. Davila, 373 S.W.3d 94, 101 (Tex. App.—Dallas 2011,
16 

When a party fails to request the inclusion of particular factors in the

jury charge and additionally fails to object to the omission of the same

factors from the charge, the party cannot then claim on appeal that the

judgment should be reversed because there is legally and factually

insufficient evidence of the factors because the trier of fact was never asked

to consider them. Wal‐Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex.

2001); Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc., 201 S.W.3d 272, 283‐

86 (Tex. App.—Houston [14th Dist.] 2006, no pet.).  Accordingly, when the

charge does not instruct the jury to consider an element of a cause of action,

finding insufficient evidence regarding that element is immaterial. Harstan,

Ltd. v. Kim, 441 S.W.3d 791, 799 (Tex. App.—El Paso 2014, no pet.)(because

the charge for statuary fraud failed to require justifiable reliance, legally

 

pet. denied); Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795, 807 (Tex. App.—Dallas 2011,

no pet.); Crounse v. State Farm Mut. Auto. Ins. Co., 336 S.W.3d 717, 719 (Tex. App.—

Houston [1st Dist.] 2010, pet. denied); Lee v. Dykes, 312 S.W.3d 191, 194 (Tex. App.—

Houston [14th Dist.] 2010, no pet.); Janssen Pharmaceutica, Inc. v. Martinez, 296 S.W.3d

634, 644(Tex. App.—El Paso 2009, no pet.); Dorton v. Chase, 262 S.W.3d 396, 398 (Tex.

App.—Waco 2008, pet. denied); Lundy v. Masson, 260 S.W.3d 482, 492 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied); In re Estate of Bean, 206 S.W.3d 749, 760 (Tex.

App.—Texarkana 2006, pet. denied); Lee v. Hasson, 286 S.W.3d 1, 20 (Tex. App.—

Houston [14th Dist.] 2007, pet. denied); Beaumont v. Basham, 205 S.W.3d 608, 619 (Tex.

App.—Waco 2006, pet. denied).
17 

sufficient evidence on justifiable reliance was not necessary); see also Texas

First Nat. Bank v. Ng, 167 S.W.3d 842, 855‐56 (Tex. App.—Houston [14th

Dist.] 2005, judgmʹt vacated w.r.m.) (the complaining party waived any

argument that evidence was insufficient to support finding of justifiable

reliance because jury charge did not require justifiable reliance). Said

differently, sufficiency of the evidence reviews cannot be based on legal

standards that were not submitted to the jury. Id.; see also Hirschfeld Steel

Co. v. Kellogg Brown & Root, Inc., 201 S.W.3d 272, 283‐86 (Tex. App.—

Houston [14th Dist.] 2006, no pet.)(rejecting appellant’s legal arguments

establishing substantial performance because they were not submitted to

the jury).

Here, the charge contained only one question pertaining to the

existence of an informal fiduciary duty, and it was Question 5. Specifically,

“Question 5” asked:

Did a relationship of trust and confidence exist between

DAVID SHEARER and CORRINE SHEARER at the time of the

occurrence?

Jury Charge, 7. The trial court instructed the jury that:  
18 

A relationship of trust and confidence existed if DAVID

SHEARER justifiably placed trust and confidence in CORRINE

SHEARER to act in DAVID SHEARER’s best interest. DAVID

SHEARER’s subjective trust and feelings alone do not justify

transforming an arms‐length dealings into a relationship of

trust and confidence.  

   

Jury Charge, 7. The trial court instructed the jury to consider only whether

a relationship of trust and confidence existed between Corrine Shearer and

David Shearer. Id. Moreover, the trial court instructed the jury that “[a]

relationship of trust and confidence existed if David Shearer justifiably

placed trust and confidence in Corinne Shearer to act in David Shearer’s

best interest. David Shearer’s subjective trust and feelings alone do not

justify transforming arm’s‐length dealings into a relationship of trust and

confidence.” Jury Charge, 7. Additionally, the trial ourt instructed the jury

that a relationship of trust and confidence “cannot be based solely on

David’s subjective feelings.” Jury Charge, 7.

The trial court’s charge is almost verbatim to the language Corrine

Shearer submitted to the trial court in her proposed charge. Def’s.

Proposed Charge, 5. Indeed, Corrine Shearer requested that the trial court

charge the jury as follows:
19 

Did a relationship of trust and confidence exist between

Corrine Shearer and David Shearer?  

A relationship of trust and confidence existed if David Shearer

justifiably placed trust and confidence in Corinne Shearer to act

in David Shearer’s best interest. David Shearer’s subjective trust

and feelings alone do not justify transforming arm’s‐length

dealings into a relationship of trust and confidence.

  

Def’s. Proposed Charge, 5.  

As seen above, the only difference between Corrine Shearer’s

requested charge and the charge used by the trial court, is that the trial

court’s charge added the phrase “at the time of the occurrence” at the end

of the question. See Def’s Proposed Charge, 5; Jury Charge, 7. Corrine

Shearer never requested that the trial court charge the jury on the three

factors which now form the foundation of her legal and factual sufficiency

challenges. Specifically, Corrine Shearer did not request the addition of, or

object to the exclusion of, a definition of trust and confidence that required

proving that: (1) the confidential relationship existed prior to and apart

from the basis of the cause of action; (2) that David was accustomed to

being guided by the judgment or advice of Corrine Shearer, or (3) that

Corrine Shearer and David lacked equal footing in their relationship.
20 

Corrine Shearer’s attorneys objected only to the submission of “Question

2” and “Question 9.” 5 RR 26‐27. After lodging her objections to the

submission of Questions 2 and 9, Corrine Shearer’s attorney stated

unequivocally that “I have no requested additions to the charge.” 5 RR 26.

Corrine Shearer’s attorney’s statement concluded the charge conference. 5

RR 26‐27. Accordingly, Corrine Shearer waived her legal and factually

sufficiency points on these factors. See Burbage v. Burbage, 447 S.W.3d at

255; Harstan, Ltd., 441 S.W.3d at 799; Texas First Nat. Bank, 167 S.W.3d at

855‐56. Consequently, Corrine Shearer’s legal and factual sufficiency points

should be overruled.   

Corrine Shearer’s failure to object or request any change to “Question

5” requires this Court to review the sufficiency of the evidence in light of

the charge given by the court. Burbage v. Burbage, 447 S.W.3d 249, 260 (Tex.

2014) (when the appellant fails to object to the charge or to request a

different charge, the sufficiency of the evidence is measured by the trial

court’s charge); Osterberg v. Peca, 12 S.W.3d at 55. Thus, the sufficiency of

the evidence to support the existence of an informal fiduciary duty is
21 

limited to the factors and elements the court instructed the jury on, and

defined for the jury. Id.  Yet, Corrine Shearer does not raise on appeal that

there is legally or factually insufficient evidence to support the jury’s

finding under the trial court’s charge. Accordingly, there is no reason for

this Court to perform a legal or factual sufficiency review, and Corrine

Shearer’s appellate points concerning the existence of an informal fiduciary

duty should be overruled.  

II. There Is Legally and Factually Sufficient Evidence Supporting the

Jury’s Unanimous Finding of the Existence of An Informal Fiduciary

Relationship Under the Court’s Charge.

If, however, this Court finds that Corrine Shearer has properly raised

an appellate point concerning the legal and factual sufficiency of the

evidence concerning the existence of an informal fiduciary duty under the

trial court’s charge, there is legally and factually sufficient evidence to

support the jury’s verdict and trial court’s judgment.  

Prior to John Shearer’s transfer to the Houston VA, Corrine knew

from the social worker at the Overton VA that because she was John

Shearer’s ex‐wife, she had no legal authority to make medical decisions on
22 

John Shearer’s behalf. 4 RR 46‐48; Pl’s. Ex. 2‐85; 8 RR 91. She also knew that

the document she had faxed to the Overton VA expressly provided that she

did not have the right to make medical decisions on John Shearer’s behalf.  

4 RR 47; Pl’s. Ex. 2‐85; 8 RR 91.  Moreover, she knew from the social worker

at the Overton VA that the person that had the legal authority to make

those decisions was David. 4 RR 47; Pl’s. Ex. 2‐85; 8 RR 91. David correctly

believed he was the individual with the right to make medical decisions on

behalf of his father, John Shearer. 4 RR 172, 191, 192, 194, 198, 211; TEX.

HEALTH & SAFETY CODE §166.039. Corrine even said this to David during

their conversations prior to John’s death. 4 RR 59‐63, 65‐66, 161‐162, 191‐

192, 198, 211. Moreover, the Overton VA left him a voicemail saying that he

had the right to make medical decisions on behalf of his dad. 4 RR 172, 192,

198.

Moreover, Corrine Shearer knew that David could not come down to

stay with John Shearer at the Houston VA. 4 RR 55‐58.  Corrine knew that

David was in a gun accident just a week prior to John Shearer falling ill and

that David Shearer’s wife had recently been diagnosed with a brain tumor.
23 

4 RR 55‐58. She also knew that David had three minor children to support.

4 RR 57. As a result, Corrine Shearer knew that David was trusting her to

relay the information she obtained from the doctors to him so that he could

make decisions concerning his father. 4 RR 59, 67‐68, 198.    Moreover,

Corrine knew that David trusted her to provide him with accurate

information regarding John Shearer’s medical condition:  

Q: You knew, Corrine Shearer, that during all of

those phone conversations, that David was trusting

you to accurately tell him what was going on with

his father?  

A: I did the best I could do, sir. Yes, sir.  

Q: That doesnʹt answer my question.  

A: Iʹm sorry. What was it?  

Q: My question was, you knew David was trusting

you to accurately provide the information about his

father, yes or no?  

A: Yes.  

Q: And you also knew that if Davidʹs fatherʹs

condition, Johnʹs condition, got to the point where

death was going to happen for sure, he was trusting

you to give him a call?  

A: I donʹt know.  

Q: Remember giving a deposition in this case,

Corrine Shearer?  

A What did you say?

Q: You remember giving a deposition in this case?  

A: Yes

Q: You were under oath?  
24 

A: Yes.  

...

Q: [reading from Corrine Shearer’s Deposition] Did

you believe David trusted that you would tell him if

his fatherʹs condition got to a point where death

was likely? Answer. Death was always likely, but,

yes. Did I read that correctly?  

A: Yes.  

Q: So you knew that he was trusting you that if that

point came –  

A: Well, yes, sir. Everybody was trusting me. I had

to tell them everything.  

4 RR 59‐60.  

Nearly every day, sometimes multiple times a day, David would call

Corrine or vice versa. 4 RR 53‐56, 158, 174; Pl’s Ex. 6; Pl’s Demonstrative Ex.

1; 8 RR 590 – 599 and 8 RR 601 ‐ 609. In fact, David and Corrine talked over

60 times during John Shearer’s 33 day stay at the Houston VA hospital. Pl’s

Ex. 6; Pl’s Demonstrative Ex. 1; 8 RR 590 – 599 and 8 RR 601 ‐ 609. Yet, this

was NOT a one‐sided relationship. That is, David did NOT initiate all the

calls. 4 RR 53‐56, 158, 174; Pl’s Ex. 6; Pl’s Demonstrative Ex. 1; 8 RR 590 –

599 and 8 RR 601 609.  Corrine Shearer perpetuated the relationship of trust

and confidence by initiating 19, nearly 1/3 of the, phone calls. 4 RR 174; Pl’s

Ex. 6; Pl’s. Demonstrative Ex. 1; 8 RR 590 – 593, 8 RR 696, 8 RR 604 – 605
25 

and 8 RR 608 ‐ 609. Every phone call between Corrine and David was about

one thing: John Shearer’s medical condition. 4 RR 55, 174. Indeed, Corrine

Shearer updated David concerning the John Shearer’s need for surgery,

updates on John Shearer while he was in surgery, and the updates post‐

surgery, in addition to relaying other information Corrine Shearer received

from John Shearer’s physicians. 4 RR 96‐97; 174. David Shearer, however,

did not know Corrine Shearer was making medical decisions on John

Shearer’s behalf during his stay at the Houston VA. 4 RR 175‐76. Nor did

David Shearer know that she was representing herself to be John Shearer’s

wife at the Houston VA. 4 RR 175.

Moreover, when David Shearer went to the Houston VA in late

November, he visited with his father, met with physicians, and met with

Corrine Shearer. 4 RR 161. They discussed John Shearer’s future care,

including the possibility of needing to order a DNR. 4 RR 161. David

Shearer and Corrine Shearer further discussed the possibility of a DNR

being ordered in the future, including the fact that if that situation arose,

Corrine Shearer would let David know and David would make the
26 

decision whether to enter a DNR. 4 RR 59‐63, 65‐66, 161‐162, 191‐192, 198,

211. In fact, after returning home to Longview from his trip to the Houston

VA in late November, David Shearer made arrangements with his

employer to leave in the event he needed to make a decision on whether to

enter a DNR on his father. 4 RR 165. Instead, Corrine Shearer informed

David Shearer that John Shearer had made a miraculous recovery and that

the possibility of a DNR was off the table. 4 RR 162‐163. From then to the

day John Shearer died, Corrine Shearer told David that there was not much

change in John Shearer’s condition. 4 RR 186‐87.  

On December 7, 2009, a physician discussed John Shearer’s long term

expectations with Corrine Shearer, including the fact that John Shearer

would likely need lifelong hemodialysis and may need ventilator support.

Pl’s. Ex. 3‐ 39; 8 RR 683.  Corrine Shearer and the physician discussed end

of life issues and possibly withdrawing versus deescalating care. Pl’s. Ex. 3‐

39; 8 RR 683.  Corrine Shearer represented to the physician that she needed

to call family. Pl’s. Ex. 3‐39; 8 RR 683. This conversation between Corrine

Shearer and the physician occurred at or before 6:05 p.m. on December 7,
27 

2009. Pl’s. Ex. 3‐39; 8 RR 683. At 7:26 p.m., just over an hour later, David

Shearer called Corrine Shearer and the two talked for over eleven (11)

minutes. Pl’s Ex. 6; Pl’s Demonstrative 1; 8 RR 606.  Not one time during

this eleven minute conversation did Corrine Shearer tell David Shearer that

she and the physician discussed long term care, or the possibility of

withdrawing or deescalating John Shearer’s medical care. 4 RR 163‐64.

On the morning of December 8, Corrine Shearer lied to the doctors

telling them that she had spoken with John’s family, and that she wanted

care withdrawn at this time. Pl’s. Ex. 3‐18; 8 RR 772. All life sustaining

machines, medications and nutritional support was withdrawn from John

Shearer by 3:48 p.m. on December 8, 2009. Pl’s. Ex. 3‐18; 8 RR 772. Corrine

Shearer did not inform David Shearer that she had placed such a directive

to physicians. 4 RR 73, 163‐64. David Shearer called Corrine Shearer on the

evening of December 8, 2009 at 6:01 p.m. and the two spoke for over six (6)

minutes. Pl’s Ex. 6; Pl’s. Demonstrative Ex. 1; 8 RR 609; 4 RR 77‐79. During

that conversation, Corrine Shearer never mentioned that she had ordered

all life sustaining machines, life sustaining medications, and all nutritional
28 

support be withdrawn from John Shearer just hours before. 4 RR 78‐79 127,

164.    Nor did she inform David that Corrine Shearer ordered a DNR on

John Shearer. 4 RR 78‐79 127, 164. John Shearer passed away around 4:00

a.m. on December 9, 2009 without the comfort of his son and

approximately 16 hours after Corrine Shearer ordered all life sustaining

machines, life sustaining medications and nutritional support be

withdrawn and ordered the DNR. 4 RR 82‐83; Pl’s. Ex. 3‐8; 8 RR 679.  That

is almost ten (10) hours after Corrine Shearer failed to disclose to David

what she had done during their phone conversation. Pl’s Ex. 3‐18; 8 RR  

772; 4 RR 78‐79 127, 164. Corrine Shearer never told David that she ordered

the DNR, or that she ordered all life sustaining machines, medications and

nutrients be withdrawn from John Shearer. Pl’s Ex. 3‐18; 8 RR 772.  

Objectively, David was justified in his reliance on Corrine Shearer to

give him accurate and correct information regarding his father’s medical

treatment. Corrine Shearer knew she had no right to make medical

decisions on John Shearer’s behalf.    David Shearer knew that Corrine

Shearer had no right to make medical decisions on John Shearer’ behalf.  
29 

Corrine Shearer  further knew David had the right to make such medical

decisions, she concealed the fact from David that she was misrepresenting

herself to the Houston VA physicians as John Shearer’s wife, and she

perpetuated the relationship of trust and confidence by confirming to

David that he had the right to make the medical decisions on John’s behalf,

by confirming to David that it was his decision concerning the DNR and by

continuously providing David Shearer with updates concerning his father’s

medical condition.    There is more than legally and factually sufficient

evidence to support the jury’s unanimous finding that a relationship of

trust and confidence existed between David and Corrine Shearer.

Accordingly, Appellant’s legal and factually sufficient points should be

overruled.  

III. Corrine Shearer’s Legal and Factual Sufficiency Points of Error are

Irrelevant Because the Factors Raised by Corrine Shearer in Her

Appeal are Not Required for the Creation of, or the Existence of, an

Informal Fiduciary Duty.

A fiduciary duty may arise from an informal relationship “where one

person trusts in and relies upon another, whether the relation is a moral,

social, domestic, or purely personal one.” Fitz‐Gerald v. Hull, 237 S.W.2d
30 

256, 261 (Tex. 1951). The term fiduciary refers to any person owing a “duty

of integrity and fidelity, and it applies to any person who occupies a

position of peculiar confidence towards another.” Young v. Fawcett, 376

S.W.3d 209, 214 (Tex. App.—Beaumont 2012, no pet.) (quoting Kinzbach

Tool Co. v. Corbett‐Wallace Corp., 160 S.W.2d509, 512 (Tex. 1942). Thus,

purely personal relationships, where one places trust in and relies upon a

person, may give rise to a fiduciary duty. See Mills v. Gray, 210 S.W.2d 985,

986‐89 (Tex. 1948).

Subjective trust alone is not sufficient to establish a confidential

relationship. Thigpin v. Locke, 363 S.W.2d 247, 253 (Tex. 1962). The Texas

Supreme Court has not identified any additional elements that must be

present in establishing an informal fiduciary. See Id; see also Young v.

Fawcett, 376 S.W.3d at 214. There are no additional required elements

because determining if an informal fiduciary duty exists is “determined

from the actualities of the relationship between the persons involved.”

Thigpin v. Locke, 363 S.W.2d 247, 253. Moreover, informal fiduciary

relationships are determined by the particular circumstance and are thus
31 

not governed by hard and rigid tests. Tex. Bank & Trust Co., 595 S.W.2d 502,

508 (Tex. 1980).  

In Texas Bank & Trust Co., the Texas Supreme Court reversed the

judgement of the appellate court and reinstated the trial court’s judgement

finding that a fiduciary relationship existed between the nephew of the

decedent and the administrator of the decedent’s estate. Id. at 502. The

Court noted that when determining whether an informal fiduciary

relationship exists the “problem is one of equity “and the creation of

informal fiduciary relationships is “not subject to hard and fast lines.” Id. at

507. As a result, the factors raised in Corrine Shearer’s legal and factual

sufficiency points are not pre‐requisites to the creation and/or existence of

an informal fiduciary relationship.   Accordingly, insufficient evidence for

any or all of them does not render the jury verdict improper.

Corrine Shearer argues that the “the confidential relationship must

exist prior to, and apart from, the transaction that forms the basis of the

lawsuit.” Appellant’s Br. 10, citing to Meyer v. Cathey, 167 S.W.3d 327, 331

(Tex. 2005). This argument misapplies the rule in Meyer. In Meyer, the
32 

Court stated that in a “business transaction” the relationship of trust and

confidence must exist prior to and apart from the transaction. Meyer v.

Cathey, 167 S.W.3d 327, 331 (Tex. 2005). That is because courts are reluctant

to impose an informal fiduciary relationship in business transactions in an

effort to “give full force to contracts.” Meyer v. Cathey, 167 S.W.3d 327, 331

(Tex. 2005), citing to Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171,

177 (Tex. 1997). When the informal fiduciary relationship arises in a purely

personal context, the danger of infringing on private contracts is not

implicated.

Lacking equal footing in a relationship is another factor that a court

has examined when analyzing whether an informal fiduciary relationship

exists. See Pope v. Darcey, 667 S.W.2d 270, 273 (Tex. App.—Houston [14th

Dist.] 1984, writ refʹd n.r.e.).  Likewise, a court has looked at whether the

plaintiff was accustomed to relying on advice of another.  Trostle v. Trostle,

77 S.W.3d at 914. Yet, the Supreme Court in Thigpen did not hold that these

are required factors. Thigpin v. Locke, 363 S.W.2d 247.  In fact, the Thigpen

Court did not consider them at all. Id. Instead, the Thigpen Court focused
33 

on whether the plaintiff was justified in believing the defendant would act

in his best interest. Id.  

The fact that there are no hard and fast requirements for the creation

and/or existence of an informal fiduciary relationship is also illustrated by

the fact that other appellate courts have looked at different factors.  

Specifically, other courts examining the existence of an informal fiduciary

relationship in a personal context have considered whether the plaintiff

relied on the defendant for support, the plaintiffʹs advanced age and poor

health, and evidence of the plaintiffʹs trust. Trostle v. Trostle, 77 S.W.3d 908,

915 (Tex. App.—Amarillo 2002, no pet.); see also Lee v. Hasson, 286 S.W.3d

at 14‐16; Hatton v. Turner, 622 S.W.2d 450, 458 (Tex. Civ. App.—Tyler 1981,

no writ); Holland v. Lesesne, 350 S.W.2d 859, 862 (Tex. Civ. App.—San

Antonio 1961, writ refʹd n.r.e.). That’s because determining whether an

informal fiduciary duty exists is “determined from the actualities of the

relationship between the persons involved” and the unique factual

circumstances. Thigpin v. Locke, 363 S.W.2d 247, 253; see also, Tex. Bank &

Trust Co., 595 S.W.2d 502, 508 (Tex. 1980).    Thus, despite Appellants
34 

representations to the contrary, there is no requirement that a confidential

relationship must exist prior to, and apart from, the transaction that forms

the basis of the lawsuit, that the plaintiff be accustomed to relying on the

judgment and advice of the defendant and that the plaintiff lack equal

footing.

IV. Alternatively, if This Court Holds that these Three Factors are

Required for the Creation of an Informal Fiduciary Duty, There is

Sufficient Evidence to Support the Trial Court’s Judgment.

A relationship of trust and confidence existed between David Shearer

and Corrine Shearer prior to, and apart from, the transaction that forms the

basis of the David Shearer’s claims.  David Shearer’s testimony established

that while his father was in the Houston VA he became accustomed to

getting information and updates from Corrine Shearer concerning his

father’s medical condition. 4 RR 157‐158.  Again, they spoke nearly every

day by telephone. Corrine Shearer’s and David Shearer’s testimony

showed that the only topic that David and Corrine Shearer spoke about

was John Shearer’s medical condition. 4 RR 55, 174.  David’s knowledge of

his father’s condition was based on the information he obtained from
35 

Corrine Shearer. 4 RR 18. Indeed, Corrine Shearer was David’s only source

of information, and she knew that David trusted her to give him correct

information. 4 RR 59‐60. During John Shearer’s 33 days in the Houston VA,

Corrine Shearer reported to David about five different surgical procedures,

in addition to the day to day changes of his father’s medical condition. 4

RR 93, 177. Each of these updates were distinct and separate exchanges. 4

RR 175‐177. David developed trust and reliance on Corrine Shearer after

she relayed information to David day by day, procedure after procedure.

The breach of fiduciary duty arose only from the final exchange between

David and Corrine Shearer—her ordering all life sustaining machines, life

sustaining medications, and nutritional support be withdrawn from John

Shearer, her ordering the DNR and then concealing that from David. 4 RR

186. Thus, there is sufficient evidence that David Shearer had a relationship

of trust and confidence with Corrine Shearer that existed prior to December

7th and 8th and that David was accustomed to receiving advice and

judgment from Corrine Shearer.  
36 

Next, David was in a weaker position to Corrine Shearer regarding

his father. David was unable to stay with his father in Houston, or to

regularly visit, due to the extreme challenges David was dealing with at

home. David testified that a week or two prior to John Shearer being

admitted to the Houston VA., he accidently shot through his index finger,

and had to have part of it amputated. 4 RR 155. David worked as a

mechanic at Aerosmith Aviation, and received an hourly wage. 4 RR 155.

His gun accident caused him to miss over a week of work. 4 RR 155. At the

time John Shearer was in the Houston VA, David’s son was three‐year‐old,

and his two daughters were seven and twelve years old. 4 RR 156.

Additionally, David’s wife was diagnosed with a brain tumor over her

eyes. 4 RR 155. Thus, while David’s father was in the Houston VA, David

was trying to take care of his wife, raise three kids, earn enough money to

support his family, and finally, recover from his own injury that resulted in

losing part of his index finger. Corrine Shearer knew David’s wife had been

diagnosed with a brain tumor, she knew that David blew part of his finger
37 

off, she knew David was raising three kids, and he was working to support

his family. 4 RR 57‐58.

These difficult circumstances left David completely dependent on

Corrine Shearer to provide him with information about his father’s health.

David testified that he trusted Corrine Shearer would provide him with

accurate information. 4 RR 158. Corrine Shearer was in Houston, she was

able to talk to the doctors, she was able to see John and witness his

condition every day. 4 RR 72, 83. Because Corrine Shearer was able to be

with John Shearer every moment, she occupied a position of dominance

and control. Corrine Shearer had all the information, and David was

dependent on her to give them the accurate information. Accordingly, the

trial court has sufficient evidence to find that a Corrine Shearer was in a

position of dominance over David Shearer.  

V. Intentional Infliction of Emotional Distress Represents the Only

Available Cause of Action for David to Recover for Corrine Shearer’s

Wrongful Disposition of John Shearer’s Ashes.

Corrine Shearer claims on appeal that David Shearer could have

recovered under an invasion of privacy cause of action, and thus cannot
38 

recover under IIED. Appellant’s Br. 18. Specifically, Corrine Shearer argues

that David could have recovered through his invasion of privacy cause of

action under, Texas Health & Safety Code § 711.002. Appellant’s Br. 19‐20. 

In Texas, IIED is a ʺgap‐fillerʺ tort; a tort that was judicially created

for the limited purpose of “allowing recovery in those rare instances in

which a defendant intentionally inflicts severe emotional distress in a

manner so unusual that the victim has no other recognized theory of

redress.” Hoffmann‐La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex.

2004). The purpose of an IIED Cause of action is  ʺto supplement existing

forms of recovery by providing a cause of action for egregious conduct that

might otherwise go unremedied.” Standard Fruit and Vegetable Co. v.

Johnson, 985 S.W.2d 62, 68 (Tex. 1998).  

Invasion of privacy is not an adequate theory of recovery for Corrine

Shearer’s wrongful taking and disposing of John Shearer’s ashes.  In Texas,

human remains are considered property. See Evanston Ins. Co. v. Legacy of

Life, Inc., 370 S.W.3d 377 (Tex. 2012). Thus, Corrine Shearer interfered with

David Shearer’s property rights. She did not invade David Shearer’s
39 

solitude, his seclusion, or his private affairs, which is required for invasion

of privacy. See Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993).

Corrine Shearer took something that belonged to David, that has extreme

emotional value and intentionally disposed of without authority and after

the rightful owner requested the ashes. As a result, the only possible cause

of action available to David Shearer was for conversion or intentional

infliction of emotional distress, as noted by the trial judge. 5 RR 10‐11.  

Moreover, the trial court granted Corrine Shearer’s Motion for

Directed Verdict on David Shearer’s conversion cause of action after the

close of evidence. 5 RR 15‐16. The trial judge held that “Texas is yet to

recognize a conversion claim as to human remains.” 5 RR 15. The trial

judge noted that fair market damages is a “critical element” for conversion

and that remains have no fair market value. 5 RR 15. Consequently, the

trial judge held conversion is not an available cause of action. 5 RR 15.

Because conversion was not appropriate for this unique factual situation,

the IIED gap‐filler was necessary to allow recovery for Corrine Shearer’s

egregious conduct that would otherwise go unremedied.  
40 

The Houston Court of Appeals has stated that there is no other cause

of action available but intentional infliction of emotion distress for the

wrongful treatment of human remains. Priebe v. AʹHearn, 2011 Tex. App.

LEXIS 2542, *15 (Tex. App.—Houston [1st Dist.] Apr. 6, 2011, no pet.)(mem.

op.). In Priebe, the court held that because the plaintiff alleged facts in

support of her IIED claim, regarding her father’s remains that did not

support any other cause of action, IIED was the appropriate cause of action

to bring. Id.  

As in Priebe, David Shearer established independent facts that

support his IIED claim. Thus, David Shearer’s claim is not barred because

the IIED was based on independent facts not supported by any other cause

of action. See Hoffmann‐La Roche, Inc. v. Zeltwanger, 144 S.W.3d at 447.  
41 

PRAYER

For these reasons, David Shearer asks this Court to overrule Corrine

Shearer’s points of error and affirm the trial courts judgment.

Respectfully submitted,

Carson R. Runge

Attorney for David Shearer

Sloan, Bagley, Hatcher & Perry Law Firm

101 East Whaley St., Longview, TX 75601

903‐757.7000 ext.213  

Fax: 903‐757‐7574

crunge@sloanfirm.com

State Bar Number: 24059262

/s/ Carson Runge   

Carson Runge
42 

CERTIFICATE OF COMPLIANCE  

In compliance with Texas Rule of Appellate Procedure 9.4(1)(3) this is to

certify that the Appellee’s Brief contains 8,362 words, according to

Microsoft Word 2010’s word count, which does not include the caption,

identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues

presented, statement of jurisdiction, statement of procedural history,

signature, proof of service, certification, certificate of compliance, and

appendix.

/s/ Carson Runge

Carson Runge
43 

CERTIFICATE OF SERVICE  

This is to certify that a true and correct copy of the Appellee’s Brief has

been served upon the named individuals listed below by electronic service

and/or email, in accordance with the Texas Rules of Civil Procedure on

April 8, 2015.

J. CHAD PARKER

cparker@theparkerfirm.net

Bar Card No: 15489000

THE PARKER FIRM, P.C.

3808 Old Jacksonville Rd.

Tyler, Texas 75701

(903) 595‐4541 ‐ telephone

(903) 595‐2864 ‐ facsimile

/s/ Carson Runge

Carson Runge
NO. 12-14-00302-CV

IN THE TWELFTH COURT OF APPEALS 

TYLER, TEXAS

CORRINE AUGUSTINE NICHOLS HILL SHEARER

Appellant

v.

DAVID SHEARER, INDIVIDUALLY AND AS THE INDEPENDENT 

ADMINISTRATOR OF THE ESTATE OF JOHN WILLIAM SHEARER, III

Appellee

Appeal from the County Court at Law No. 2

Gregg County, Texas

APPENDIX TO APELLEE’S BRIEF

Carson R. Runge

Attorney for David Shearer

Sloan, Bagley, Hatcher & Perry Law Firm

101 East Whaley St., Longview, TX 75601

Phone: 903-757.7000 ext.213 

Fax: 903-757-7574

State Bar Number: 24059262
Table of Contents 

Tab 1: Jury Charge

Tab 2: Defendant’s Proposed Jury Charge

Tab 3: Plaintiff David Shearer, Individually and as Independent 

Administrator of the Estate of John William Shearer, III’s Second 

Amended Petition

Tab 4: Plaintiffs Demonstrative Exhibit 1

Tab 5: Tex. R. Civ. P. 272

Tab 6: Tex. R. Civ. P. 274

Tab 7: Tex. R. Civ. P. 278

Tab 8: Tex. R. Civ. P. 279

Tab 9: Tex. Health & Safety Code § 166.039

Tab 10: Tex. Health & Safety Code § 711.002
Jury Charge
\\ FILED

GREGG COUNTY. TÐûS

CAUSE NO. 201 1-1919-CCL2

DAVID SHEARER, IndividuallY and as

Independent Administrator of the Estate

of JOHN WILLIAM SHEARER, III

AT LAW #2

CORRINE AUGUSTTNE HILL

SHEARER GREGG COLINTY, TEXAS

JURY INSTRUCTIONS

LADIES AND GENTLEMEN OF THE JURY:

After the closing arguments, you will go to the jury room to decide the case, answer the questions

that are attacheã, and reach a verdict. You may discuss the case with other jurors only when you

are all together in the jurY room.

Remember my previous instructions: Do not discuss the case with anyone else, either in person or

by any other means. Do not do any independent investigation about the case or conduct any

research. Do not look up any wordi in diõtiona ies or on the Intemet. Do not post information

about the case on the Internei. Do not share any special knowledge or experiences with the other

jurors. Do not use your phone or any other electronic device during your deliberations for any

feason.

Any notes you have taken are for your own personal use. You may take your notes back into the

¡ury room and consult them during deliberatiõns, but do not show or read your notes to your fellow

ju.átr during your deliberations. Your notes are not evidence. Each of you should rely on your

independenirécollection ofthe evidence and not be influenced by the fact that anotherjuror has or

has not taken notes,

you must leave your notes with the bailiff when you are not deliberating. The bailiff will give your

notes to me promptly after collecting them from you. I witl make sure your notes are kept in asafe,

secure location and not disclosed toãnyone. After you complete your deliberations, the bailiff will

collect your notes. 'When you are released from jury duty, the bailiff will promptly destroy your

notes so that nobody can read what you wrote.

Here are the instructions for answering the questions'

L Do not let bias, prejudice, or sympathy play any part in your decision'

Z. Base your unr*L.. only on thã .uid"n"" admitted in court and on the law that is in these

instructions and questións. Do not consider or discuss any evidence that was not admitted

in the couttroom'

$

$

$

$

$

$

$

$

IN THE COUNTY COURT

JUL 0 22014

True and Correct coPY of original

filed in the Gregg CountY District

Clerk Office
J You are to make up your own minds about the facts. You are the sole judges of the

credibility of the wiinr.res and the weight to give their testimony, But on matters of law,

you must follow all of my instructions'

if my instructions use a word in a way that is different from its ordinary meaning, use the

meaning I give you, which will be a proper legal definition'

All the [u.ãtiont and answers are important, No one should say that any question or answer

is not important.

Answer ¿yes" or .,no" to all questions unless you are told otherwise. A "yes" answer must

be based on a preponderance of the evidence unless you are told otherwise. Whenever a

qUestiOn requiieS an answer Other than "yes" or "no," your answer must be based On a

prepond".ance ofthe evidence unless you are told otherwise. The term "preponderance of

the evidence" means the greater weigirt of credible evidence presented in this case' If you

do not flrnd that a pr"pond"rance of the evidence supports a "yes" answer, then answer

,,no.,' A preponderáncå of the evidence is not measured by the number of witnesses or by

the numberãf do"u-.nts admitted in evidence. For a fact to be proved by a preponderance

of the evidence, you must fînd that the fact is more likely true than not true'

Do not decide who you think should win before you answer the questions and then just

answer the questions to match your decision. Answer each question carefully. without

considering ùho will win. Do not discuss or consider the effect your answers will have'

Do not answer questions by drawing straws or by any method of chance'

Some questions might ask you for adollar amount, Do not agree in advance to decide on a

dollar ámount Uy adding up each juror's amount and then f,rguring the average'

Do not trade your ans*"rr. For example, do not say, "I will answer this question your way

if you answeÍ another question my way'"

Uáless directed otherwise, the answers to the questions must be based on the decision of at

least 10 of the 12 jurors. The same 10 jurors must agree on every answer. Do not agree to

be bognd by a vote of anything less than l0 jurors, even if it would be a majority'

As I have said before, if you do not follow these instructions, you will be guilty of juror

misconduct, and I might have to order a new trial and start this process over again' This would

waste you. ii*. and the parties' money, and would require the taxpayers of this gounty to pay for

another trial. If a juror ïreaks uny oî these rules, tell that person to stop and report it to me

immediately.

A fact may be established by direct evidence or by circumstantial evidence or both' A fact is

established by direct evidence when proved by documentary evidence or by witnesses who saw the

act done or heard the words spoken. A fact is established by circumstantial evidence when it may

be fairly and reasonably infened from other facts proved'

4.

5.

6.

7

8

9

l0

1l

I

2

J

DEFINITIONS

.,DAVID SHEARER" means Plaintiff, David Shearer, in his individual capacity.

.,CORRINE SHEARER" means Defendant, Corrine Augustine Nichols Hill Shearer

,.JOHN SHEARER" means John william shearer, III, Deceased.

Truc and Correct copv of original

liled in the Gregg County DisiricÌ

Clerk Oftice.
QUESTION 1:

Did CORRINE SHEARER inrentionally intrude into JOHN SHEARER's solitude, seclusion, or

private affairs or concems in a manner that would be highly offensive to a reasonable person?

Answgr "Ygsttor ttNo":

ANSWER: ñ

True and Correct copy of original

filed in the Gregg County District

Clerk Office.
QUESTION 2:

Answer the following question only if you answered "yes" to Question l, Otherwise, do not

answer the following question.

What sum of money, if paid now in cash, would fairly and reasonably compensate JOHN

SHEARER for menial anguish sustained in the past, if any, resulting from the occurrence in

question?

"Mental anguish" means the conscious emotional pain, torment, and suffering experienced by

JOHN SHEÀRER before his death as a result of the intentional invasion of JOHN SHEARER's

solitude, seclusion or privacy.

Consider the element of damage listed above and none other. Do not award any sum of money on

any element if you have otherwise, under some other element, awarded a sum of money for the

same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any

amount of damages you flrnd,

Answer, in dollars and cents, for damages, if any.

ANSWER:

True and Correct copy of original

filed in the Gregg CoLrnty District

Clerk Ofiice.
QUESTION 3:

Did CORRINE SHEARER intentionally intrude into DAVID SHEARER's solitude, seclusion, or

private affairs or concerns in a manner ihat would be highly offensive to a reasonable person?

Answer "Yes" or "No":

ANSWER:

True and Correct copy of original

illed ¡n the Gregg County Dislrict

Clerk Ofiice.
QUESTION 4:

What sum of money, if paid now in cash, would fairly and reasonably compensate DAVID

SHEARER for his dá.agåt, if any, that resulted from the occurrence in question?

Consider the elements of damage listed below and none other. Consider each element separately.

Do not award any sum of mone! on any element if you have otherwise, under some other element,

awarded a Sum of money for the same loss. That is, do not compensate twice for the same loss, if

any. Do not include interest on any amount of damages you find.

Answer separately, in dollar and cents, for damages, if any'

Answer the following question only if you answered "Yes" to Question 3' Otherwise, do not

answer the following question'

1. Mental anguish sustained in the past.

,.Mental anguish" means the emotional pain, torment, and suffering experienced by

DAVID SHEARER as a result of the intentional invasion of DAVID SHEARER's

solitude, seclusion or PrivacY.

2. Mental anguish sustained in the future.

ANS\ilER:

True and Correct copy of original

filed in the Gregg County District

Clerk Ofiice
QUESTION 5:

Did a relationship of trust and confidence exist between DAVID SHEARER and CORRINE

SHEARER at the time of the occurrence?

A relationship of trust and confidence existed if DAVID SHEARER justifiably placed trust and

CONfidCNCE iN CORRINE SHEARER tO ACt iN DAVID SHEARER'S bESt iNtCTCSt. DAVID

SHEARER,s subjective trust and feelings alone do not justify transforming arms-length dealings

into a relationship of trust and confidence'

Answgr ttYgs" or "Nott:

ANSWER:

True and Correct coPY of original

filed in the Gregg CountY District

Clerk Office.
'¡

Answer the following question only if you answered "Yes" to Question 5. Otherwise, do not

answer the following question,

QUESTTON 6:

Did CORRINE SHEARER fail to comply with her fiduciary duty to DAVID SHEARER?

Because a relationship of trust and confidence existed between them, CORRINE SHEARER

owed DAVID SHEARER a fìduciary duty. To prove CORRINE SHEARER failed to comply

with her fiduciary duty, DAVID SHEARER must show1. The occurrence in question was not fair and equitable to DAVID SHEARER; or

2. CORRINE SHEARER did not make reasonable use of the confidence that DAVID

SHEARER placed in her; or

3. CORRINE SHEARER failed to act in the utmost good faith or exercise the most

scrupulous honesty toward DAVID SHEARER; or

4. CORRINE SHEARER placed her own interests before DAVID SHEARER's, used

the advantage of her position to gain a benefit for herself at the expense of DAVID

SHEARER, or placed herself in a position where her self-interest might conflict with

her obligations as a fiduciary; or

5. CORRINE SHEARER failed to deal openly and to fully and fairly disclose all important

information to DAVID SHEARER conceming the occurrences in question.

Answer "Yes" or "No":

ANS\üER: L

True and Correct coPY of original

filed in the Gregg CountY Distrìct

Clerk 0Ífice
Answer the following question only if you answered "Yes" to Question 5 and "Yes" to Question 6'

Otherwise, do not answer the following question'

QUESTION 7:

What sum of money, if paid now in cash, would fairly and reasonably compensate DAVID

SHEARER for his damagãs, if any, that resulted from the occurrence in question?

Consider the elements of damage listed below and none other. Consider each element separately.

Do not award any sum of mone! on any element if you have otherwise, under some other element,

awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if

any. Do not include interest on any amount of damages you find'

Answer separately, in dollar and cents, for damages, if any'

l. Mental anguish sustained in the past.

,,Mental anguish" means the emotional pain, torment, and suffering experienced by

DAVID SHEARER because of CORRINE SHEARER's failure to comply with her

f,rduciary duty.

ANS\ryEN:3 {\r\

2. Mental anguish sustained in the future'

,A.NSWER:

True and Correct copy of original

filed in the Gregg County District

Clerk O'ftice,
Answer the following question only if you answered "Yes" to Question 7. Otherwise, do not

answer the following question.

QUESTTON 8:

To answer "Yes" to the following question, your answer must be unanimous. You may answer

'No" to the following question only upon a vote of ten or more jurors. Otherwise, you must not

answer the following question.

Do you find by clear and convincing evidence that the harm to DAVID SHEARER

resulted from malice?

"Malice" means a specific intent by CORRINE SHEARER to cause substantial harm to

DAVID SHEARER.

Answer ttYest' or ttNo":

ANSI#ER:

True and Conect coPY of original

fiied in the Gregg CountY District

Clerk 0fl¡ce.
QUESTTON 9:

Did CORRINE, SHEARER intentionally inflict severe emotional distress on DAVID SHEARER?

Intentional infliction of emotion distress occurs when the defendant acts intentionally or recklessly

with extreme and outrageous conduct to cause the plaintiff emotional distress and the emotional

distress suffered by the plaintiff was severe.

"Extreme and outrageous conduct" occurs only where the conduct has been so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency and to be

regarded as atrocious and utterly intolerable in a civilized cornrnunity.

Answer "Yes" or "No."

ANSWER: 5

True and Correct copy of original

filed in the Gregg County Disirict

Clerk 0ilice.
Answer the following question only if you answered "Yes" to Question 9. Otherwise, do not

answer the following question.

QUESTTON 1o:

What sum of money, if paid now in cash, would fairly and reasonably compensate DAVID

SHEARER for his damages, if any, that resulted from the occurrence in question?

Consider the elements of damage listed below and none other. Consider each element separately.

Do not award any sum of money on any element if you have otherwise, under some other element,

awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if

any. Do not include interest on any amount of damages you find.

Answer separately, in dollar and cents, for damages, if any

L Mental anguish sustained in the past

"Mental anguish" means the emotional pain, torment, and suffering experienced by

DAVID SHEARER as a result of the intentional infliction of severe emotional distress

ANSWER:

2. Mental anguish sustained in the future

ANSWER:

True and Conect coPY of original

filed in the Gregg CountY District

Clerk Ofiice.
I

)

Presiding Juror:

When you go into the jury room to answer the questions, the first thing you will need to do

is choose a presiding juror.

The presiding juror has these duties:

a. have the complete charge read aloud if it will be helpful to your deliberations;

b. preside over your deliberations, meaning manage the discussions, and see that you

follow these instructions;

c. give written questions or comments to the bailiff who will give them to the judge;

d. write down the answers you agree on;

e, get the signatures for the verdict certificate; and

f. notify the bailiff that you have reached a verdict.

Instructions for Signing the Verdict Certificate:

1. You may ans\ryer the questions on a vote of l0 jurors. The same 10 jurors must agree on

every answer in the charge. This means you may not have one group of l0 jurors agree on

one answer and a different group of 10 jurors agree on another answer.

2, If l0jurorsagreeon every answer, those l0jurors signtheverdict. Ifal.l'l?ofyouagree

on every answer, you are unanimous and only the presiding juror signs the verdict.

3. All jurors should deliberate on every question. You may end up with all 12 of you agreeing

on some answers, while only l0 of you agree on other answers. But when you sign the

verdict, only those 10 who agree on every answer will sign the verdict.

JUL 0 2 ïgt+

e /t: z//.a. JUDGE PB¿ES G

True and Correct coPY of original

tiled in the Gregg CountY Disirict

Clerk Ofiice.
*,u[Jolr,ñDr.*,

J L

V

0220t

VERDICT CERTIFICATE AS TO OUESTIONS

BY

We, the jury, have answered the above and foregoing questions as herein

herewith return same into court as our Verdict.

CHECK ONE:

Our verdict is unanimous. All TWelve (12) of us have agreed to each and every

answer. The presiding juror has signed the certificate for all 12 of us

of Juror Printed Name of Presiding Juror

Our verdict is 4! unanimous. Ten (10) of us have agreed to each and every answer

signed the certificate below.

Jurors' Signatures Jurors' Printed Names

Wn'l-F't{pandI

Sel

J

I 1

L

tì¡ t' I

il í ¡t1",'i.r\

,/

)

Õ

5

'llt

6 t! (-

/ì

Gr,*¿n/, V /:',',,', -i¿

\ { n,¡\s ÅJ r.r \\

1r

Truc an,i Correct coPY of onginal

iiioi in m. Gtegg CountY Dis"ricl

Clerk OÍÌice
VERDICT CERTIFICATE AS TO oUESTIONS 5^ 6^ 7& I

We, the jury, have answered the above and foregoing questions 5, ó, 7 8¿ 8 as herein

indicated, and herewith retum same into court as our Verdict,

Our verdict is unanimous. I certify that the jury was unanimous in answering

questions 5, 6, 7 8. 8. All Twelve (12) of us have agreed to each and every answer. The

presiding juror has signed the certificate for all 12 of us.

t

¡\

Printed Name of Presiding Juror

l,'t

of Pre Juror

CLERK

DeputY

Truc and Correct copy of original

filed Ín the Gregg County D¡sir¡ct

Clerk 0Ítice.
Defendant’s Proposed Jury Charge
CAUSE NO. 2011-1919-CCL2

DAVID SHEARER, Individually and as § IN THE COUNTY 

Independent Administrator of the Estate §

of JOHN WILLIAM SHEARER, III, §

and LAWYNDA OLSON §

§ COURT AT LAW NO. 2

§

vs. §

§

CORRINE AUGUSTINE NICHOLS § OF GREGG COUNTY, TEXAS

HILL SHEARER §

DEFENDANT’S PROPOSED JURY CHARGE

MEMBERS OF THE JURY:

After the closing arguments, you will go to the jury room to decide the case, answer the 

questions that are attached, and reach a verdict. You may discuss the case with other jurors only 

when you are all together in the jury room. 

Remember my previous instructions: Do not discuss the case with anyone else, either in 

person or by any other means. Do not do any independent investigation about the case or conduct 

any research. Do not look up any words in dictionaries or on the Internet. Do not post information 

about the case on the Internet. Do not share any special knowledge or experiences with the other 

jurors. Do not use your phone or any other electronic device during your deliberations for any 

reason. I will give you a number where others may contact you in case of an emergency

Any notes you have taken are for your own personal use. You may take your notes back 

into the jury room and consult them during deliberations, but do not show or read your notes to 

your fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely 

on your independent recollection of the evidence and not be influenced by the fact that another 

juror has or has not taken notes.

Here are the instructions for answering the questions.

1. Do not let bias, prejudice, or sympathy play any part in your decision.

2. Base your answers only on the evidence admitted in court and on the law 

that is in these instructions and questions. Do not consider or discuss any evidence that was 

not admitted in the courtroom.

3. You are to make up your own minds about the facts. You are the sole judges 

of the credibility of the witnesses and the weight to give their testimony. But on matters of 

law, you must follow all of my instructions. 
4. If my instructions use a word in a way that is different from its ordinary 

meaning, use the meaning I give you, which will be a proper legal definition.

5. All the questions and answers are important. No one should say that any 

question or answer is not important.

6. Answer “yes” or “no” to all questions unless you are told otherwise. A 

“yes” answer must be based on a preponderance of the evidence unless you are told 

otherwise. Whenever a question requires an answer other than “yes” or “no,” your answer 

must be based on a preponderance of the evidence unless you are told otherwise. 

The term “preponderance of the evidence” means the greater weight of credible 

evidence presented in this case. If you do not find that a preponderance of the evidence 

supports a “yes” answer, then answer “no.” A preponderance of the evidence is not 

measured by the number of witnesses or by the number of documents admitted in evidence. 

For a fact to be proved by a preponderance of the evidence, you must find that the fact is 

more likely true than not true. 

7. Do not decide who you think should win before you answer the questions 

and then just answer the questions to match your decision. Answer each question carefully 

without considering who will win. Do not discuss or consider the effect your answers will 

have.

8. Do not answer questions by drawing straws or by any method of chance. 

9. Some questions might ask you for a dollar amount. Do not agree in advance 

to decide on a dollar amount by adding up each juror’s amount and then figuring the 

average. 

10. Do not trade your answers. For example, do not say, “I will answer this 

question your way if you answer another question my way.” 

11. Unless otherwise instructed the answers to the questions must be based on 

the decision of at least ten of the twelve jurors. The same ten jurors must agree on every 

answer. Do not agree to be bound by a vote of anything less than ten jurors, even if it 

would be a majority. 

As I have said before, if you do not follow these instructions, you will be guilty of juror 

misconduct, and I might have to order a new trial and start this process over again. This would 

waste your time and the parties’ money, and would require the taxpayers of this county to pay for 

another trial. If a juror breaks any of these rules, tell that person to stop and report it to me 

immediately.
QUESTION NO. 1

Did Corrine Shearer, without consent, intentionally intrude on John William Shearer, 

III’s solitude, seclusion or privacy by ordering the removal of life-sustaining treatment from 

him?

You must find by a preponderance of the evidence that the intrusion was substantial 

enough that it was unreasonable, unjustified, or unwarranted.1

You are instructed that consent is a defense to an intentional intrusion on solitude, 

seclusion or privacy if:

A) John William Shearer, III gave his effective consent to Corrine Shearer for the 

intrusion

or 

B) Corrine Shearer had a reasonable belief that John William Shearer, III consented to 

the intrusion

Answer “Yes” or “No.”

Answer: _______________

 

1

Vaughn v. Drennon, 202 S.W.3d 308, 320 (Tex. App. – Tyler 2006, no pet.)(citing Billings v. Atkinson, 489 S.W.2d 

858, 869 (Tex. 1973).
QUESTION NO. 2

Did Corrine Shearer intentionally intrude on David Shearer’s solitude, seclusion or 

privacy by ordering the removal of life-sustaining treatment from John William Shearer, III?

You must find by a preponderance of the evidence that the intrusion was substantial 

enough that it was unreasonable, unjustified, or unwarranted.2

You are instructed that consent is a defense to an intentional intrusion on solitude, 

seclusion or privacy if:

A) John William Shearer, III gave his effective consent to Corrine Shearer for the 

intrusion

or 

B) Corrine Shearer had a reasonable belief that John William Shearer, III consented to 

the intrusion

Answer “Yes” or “No.”

Answer: _______________

 

2

Vaughn v. Drennon, 202 S.W.3d 308, 320 (Tex. App. – Tyler 2006, no pet.)(citing Billings v. Atkinson, 489 S.W.2d 

858, 869 (Tex. 1973).
QUESTION NO. 3

Did a relationship of trust and confidence exist between Corrine Shearer and David 

Shearer?

A relationship of trust and confidence existed if David Shearer justifiably placed trust and 

confidence in Corinne Shearer to act in David Shearer’s best interest. David Shearer’s subjective 

trust and feelings alone do not justify transforming arm’s-length dealings into a relationship of 

trust and confidence.

Answer “Yes” or “No.”

Answer: ________________
If you answered “Yes” to Question No. 3, then answer Question No. 4. Otherwise, 

do not answer Question No. 4.

QUESTION NO. 4

Did Corrine Shearer fail to comply with her fiduciary duty to David Shearer?

Because a relationship of trust and confidence existed between them, Corrine Shearer

owed David Shearer a fiduciary duty. To prove Corrine Shearer failed to comply with her 

fiduciary duty, David Shearer must show—

1. the transaction in question was not fair and equitable to David Shearer; or

2. Corrine Shearer did not make reasonable use of the confidence that David 

Shearer placed in her; or

3. Corrine Shearer failed to act in the utmost good faith or exercise the most 

scrupulous honesty toward David Shearer; or

4. Corrine Shearer placed her own interests before David Shearer’s, used the 

advantage of her position to gain a benefit for herself at the expense of David Shearer, or 

placed herself in a position where her self-interest might conflict with her obligations as a 

fiduciary; or

5. Corrine Shearer failed to fully and fairly disclose all important information 

to David Shearer concerning the transaction.

Answer “Yes” or “No.”

Answer: ________________
If you answered “Yes” to Question No. 1, then answer the following Question. 

Otherwise, do not answer the following Question.

QUESTION NO. 5

What sum of money would have fairly and reasonably compensated John William 

Shearer, III for—

1. Mental anguish.

“Mental anguish” means the conscious emotional pain, torment, and suffering 

experienced by John William Shearer, III before his death as a result of the intentional 

invasion of John William Shearer, III’s solitude, seclusion or privacy.

Answer in dollars and cents for damages, if any.

Answer: _______________
Answer the following question only if you unanimously answered “Yes” to Question No. 

1. Otherwise, do not answer the following question.

To answer “Yes” to any part of the following question, your answer must be unanimous. 

You may answer “No” to any part of the following question only upon a vote of ten or more 

jurors. Otherwise, you must not answer that part of the following question.

QUESTION NO. 6

Do you find by clear and convincing evidence that the harm to John William Shearer, III 

resulted from malice?

“Clear and convincing evidence” means the measure or degree of proof that produces a 

firm belief or conviction of the truth of the allegations sought to be established.

“Malice” means a specific intent by Corrine Shearer to cause substantial injury or harm to 

John William Shearer, III.

Answer “Yes” or “No.”

Answer: _______________
If you answered “Yes” to Question No. 2, then answer the following Question. 

Otherwise, do not answer the following Question.

QUESTION NO. 7

What sum of money would fairly and reasonably compensate David Shearer for—

1. Mental anguish sustained in the past.

2. Mental anguish that, in reasonable probability, David Shearer will sustain 

in the future.

“Mental anguish” means the conscious emotional pain, torment, and suffering 

experienced by David Shearer as a result of the intentional invasion of David Shearer’s 

solitude, seclusion or privacy.

Answer in dollars and cents for damages, if any.

Answer: _______________
Answer the following question only if you unanimously answered “Yes” to Question No. 

2. Otherwise, do not answer the following question.

To answer “Yes” to any part of the following question, your answer must be unanimous. 

You may answer “No” to any part of the following question only upon a vote of ten or more 

jurors. Otherwise, you must not answer that part of the following question.

QUESTION NO. 8

Do you find by clear and convincing evidence that the harm to David Shearer resulted 

from malice?

“Clear and convincing evidence” means the measure or degree of proof that produces a 

firm belief or conviction of the truth of the allegations sought to be established.

“Malice” means a specific intent by Corrine Shearer to cause substantial injury or harm to 

David Shearer.

Answer “Yes” or “No.”

Answer: _______________
If you answered “Yes” to Question No. 4, then answer the following Question. 

Otherwise, do not answer the following Question.

QUESTION NO. 9

What sum of money, if paid now in cash, would fairly and reasonably compensate David 

Shearer for his damages, if any, resulting from the breach of fiduciary duty?

Consider the elements of damages listed below and none other. Consider each element 

separately. Do not award any sum of money on any element if you have otherwise, under some 

other element, awarded a sum of money for the same loss. That is, do not compensate twice for 

the same loss, if any. Do not include interest on any amount of damages you find.

1. Mental anguish sustained in the past.

“Mental anguish” means the emotional pain, torment, and suffering experienced 

by David Shearer because of Corrine Shearer’s breach of fiduciary duty.

Answer: _______________

2. Mental anguish that, in reasonable probability, David Shearer will sustain 

in the future.

Answer: _______________
Answer the following question regarding Corrine Shearer only if you unanimously 

answered “Yes” to Question No. 4. Otherwise, do not answer the following question.

To answer “Yes” to any part of the following question, your answer must be unanimous. 

You may answer “No” to any part of the following question only upon a vote of ten or more 

jurors. Otherwise, you must not answer that part of the following question.

QUESTION NO. 10

Do you find by clear and convincing evidence that the harm to David Shearer resulted 

from malice?

“Clear and convincing evidence” means the measure or degree of proof that produces a 

firm belief or conviction of the truth of the allegations sought to be established.

“Malice” means a specific intent by Corrine Shearer to cause substantial injury or harm to

David Shearer.

Answer “Yes” or “No.”

Answer: _______________

Plaintiff David Shearer, Individually and as Independent Administrator 

of the Estate of John William Shearer, III’s Second Amended Petition
CAUSE NO. 20I1-ß19-CCL2 *Æ#^å,o.,*,

DAVID SHEARER,Individually and as

Independent Administrator of the Estate

of JOHN WILLIAM SHEARER,III,

and LAWYNDA OLSEN

Plaintiffs.

vs

CORRINE AUGUSTINE HILL

SHEARER

Defendant.

IN THE COUNTY COüM I7 2r/I4

AT LAW #2

GREGG COUNTY, TEXAS

$

$

$

$

s

s

s

s

$

$

$

PLAINTIF'F.. DAVID SHEARER. AI,I,Y AND AS INDEPENDENT

ADMINISTRATOR OF THE ESTATE OF JOHN WILLIAM SHEARER.III'S

SECOND AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Plaintiff, DAVID SHEARER, lndividually and as Independent

Administrator of the Estate of JOHN WILLIAM SHEARER, III, complaining of and against

Defendant CORRINE AUGUSTINE NICHOLS HILL SHEARER and files this his Second

Amended Petition, and for cause of action would respectfully showthis Honorable Court as follows:

A. DISCOVERY CONTROL PLAN

1. Plaintiff intend that Discovery be conducted pursuant to a Level 3 discovery control

plan. Tex. R. Crv. P. 190.4.

B. PARTIES

2. Plaintiff, DAVID SHEARER, Individually and as Independent Administrator of the

Estate of John William Shearer, III, an individual, is a resident of Gregg County, Texas. The last

four numbers of Plaintiff s social security number are XXX-XX-2817.

Plaintiffs David Shearer's Second Amended Petition Page I
3. PlaintifT, LAWYNDA OLSEN, an individual, is a resident of Rockwall County,

Texas. The last four numbers of Plaintifls social security number are XXX-XX-22I}.

4. Defendant, CORINNE AUGUSTINENICHOLS HILL SHEARER, is an individual

who resides in Gregg County has been served and has answered herein.

C. JURISDICTION & VENUE

5. The Court has jurisdiction over Defendant because Defendant, Corrine Augustine

Nichols Hill Shearer is a Texas resident and resides in Gregg County. The Court has jurisdiction

over the controversy because Plaintiff was injured and seek damages in excess of the minimal

jurisdictional limits of this Court.

6. Venue is proper in Gregg County pursuant to Trx. Crv. Pnec. & RBtr¿. Cooe $

15.002(a)(2) because Defendant is a natural person and is a resident of Gregg County, Texas.

D. FACTS

7 . This case arises from Defendant Corrine Augustine Nichols Hill Shearer's decision,

without any right or authority, to order doctors to remove life sustaining medicines and machines

from her ex-husband, John William Shearer, III ("John Shearer") thus causing John Shearer to

ultimately pass away and then, againwithout any right or authority, disposing of his ashes. John

Shearer is the father of Plaintiff David Shearer. John Shearer and Defendant Corine Augustine

Nichols Hill Shearer married in 1991. On February 1, 2008, John Shearer and Defendant legally

divorced in Gregg County, Texas. John Shearer and Defendant lived in the same house after their

divorce. By her own admission, Defendant Corrine Augustine Nichols Hill Shearer and John

Shearer never remarried and were never coÍrmon law married after their divorce was finalized on

February 1,2008.

Plaintiffs David Shearer's Second Amended Petition Page2
8. On Novemb er 2,2009, John Shearer became ill and went to Overton Brooks VA

Medical Center in Shreveport, Louisiana, where he was admitted. Defendant Corrine Augustine

Nichols Hill Shearer accompanied him to the hospital. OnNovember 5,2009, doctors at Overton

Brooks VA Medical Center in Shreveport, Louisiana decided to transfer John Shearer to the The

Michael E. DeBakey VA Medical Center ("Houston VA Medical Center") in Houston and sought

the family, s approval. After discovering that Defendant Corrine Augustine Nichols Hill Shearer was

John Shearer's ex-wife, a social worker met with Defendant and informed her she had no authority

to make medical decisions on behalf of John Shearer and that the people with the legal authority to

make medical decisions on behalf of John Shearer were his children, including Plaintiff David

Shearer. John Shearer was transferred to the Houston VA Medical Center on November 6,2009-

g. Defendant Corrine Augustine Nichols Hill Shearer accompanied John Shearer to the

hospital in Houston and stayed attheFisher House. Knowing that she did not have any authority to

make medical decisions on behalf of John Shearer, Defendant Corrine Augustine Nichols Hill

Shearer fraudulently represented to the doctors in Houston that she was John Shearer's wife.

plaintiff David Shearer, had no idea that Defendant Corrine Augustine Nichols Hill Shearer was

fraudulently representing herself to the doctors as his father's wife. While his father was at the

Houston VA Medical Center, Plaintiff David Shearer, was not able to stay in Houston with his father

because he had to work to support his wife and three children. As such, Ptaintiff David Shearer

called Defendant Corrine Augustine Nichols Hill Shearer on a daily basis, usually in the late

aftemoon, to get updates on his father's condition. Plaintiff David Shearer was able to go down to

Houston to visit with and see his father John Shearer in late November,2009.

Plaintiffs David Shearer's Second Amended Petition Page 3
10. After David Shearer returned to his home, he was informed by Defendant Corrine

Augustine Nichols Hill Shearer that his father's health had improved. Almost daily, David Shearer

spoke to Defendant to check on his father's health and was informed by Defendant that his father's

health was either improving or no worse than when David Shearer was in Houston to see him.

I 1. Around I l:00 a.m. on December 8,2009, however, Defendant Corrine Augustine

Nichols Hill Shearer, having fraudulently informed doctors that she was John Shearer's wife,

inexplicably ordered that all "care be withdrawn" from John Shearer, including all antibiotics and

nutritional support, and requested that she be "notified when the patient dies." Additionally, as noted

by Dr. Subramanian in the medical records, "the patient's wife, Ms. Corinne Shearer. . . . decided

to make her husband, DNR." Under the belief that Defendant was in fact John Shearer's wife, the

doctors obeyed Defendant's orders and withdrew all care from John Shearer, including: (l) a

ventilator, (2) all antibiotics, and (3) all nutritional support. All care was withdrawn from John

Shearer by 3:48 p.m on December 8,2009. Pursuant to his usual routine, Plaintiff David Shearer

called Defendant Corrine Augustine Nichols Hill Shearer around 6:00 p.m. on December 8,2009

to check on his dad's well-being. During that conversation, Defendant Corrine Augustine Nichols

Hill Shearer failed to mention that she had ordered all life sustaining care be withdrawn from his

father earlier that day. As a result, John Shearer died alone, without the comfort of his son, David

Shearer, at4:00 a.m. onDecember g,2009.Around 8:00 a.m. onDecemberg,2009,AngelaShearer,

David Shearer's wife, was informed by Defendant that John Shearer had died. Defendant failed to

mention to Mrs. Shearer that Defendant had ordered all life sustaining medicines and machines

withdrawn from John Shearer or that Defendant ordered a "do not resuscitate" on John Shearer the

day before. Angela Shearer then informed her husband, Plaintiff David Shearer, who was shocked

Plaintiffs David Shearer's Second Amended Petition Page 4
to hear his father had passed having been told by Defendant that his health was improving. Plaintiff

David Shearer was devastated.

12. On December 9, 2009,the day John Shearer died, without the knowledge or consent

of Plaintiff David Shearer, and still falsely representing to be the wife of John Shearer, Defendant

Conine Augustine Nichols Hill Shearer instructed, without any authority, the hospital to deliver John

Shearer's body to Cremate Texas, Inc. so his body could be cremated. As a result, Plaintiff David

Shearer, never had an opportunity to see his father' s body, nor say goodbye. Pursuant to Defendant's

orders John Shearer's body was cremated.

13. After learning that his father's body was cremated, and before John Shearer's ashes

were sent to Defendant, David Shearer informed Defendant of his intent to take his dad's ashes.

Despite informing Defendant that he wanted his father's ashes, Defendant disposed of John

Shearer's ashes without the knowledge and consent of Plaintiff.

14. Plaintiff David Shearer leamed the horrific news that Defendant had disposed of his

father's ashes from his aunt. Plaintiff David Shearer did not find out that Defendant Corrine

Augustine Nichols Hill Shearer ordered that all life sustaining care be withdrawn from his father

until January of 2010, after requesting a copy of John Shearer's medical records and reviewing

them.

E. CAUSES OF ACTION ON BEHALF OF DAVID SHEARER. AS INDEPENDENT

ADMINISTRATOR OF THE ESTATE OF JOHN WILLIAM SHEARER.III

15. David Shearer, as lndependent Administrator of the Estate of John Shearer brings the

following causes of action for personal injury pursuant to Texas Civil Practices and Remedies Code

$ 71.021 to recover for the mental anguish that John William Shearer, III suffered until his death.

Plaintiffs David Shearer's Second Amended Petition Page 5
I. INVASION OF PRIVACY: INTENTIONAL INTRUSION ON SECLUSION

16. Pursuant to Texas Health and Safety Code section 166.039(b), Defendant Corrine

Augustine Nichols Hill Shearer never had the authority or right to make treatment decisions

concerning John Shearer. Defendant intentionally intruded on John William Shearer, III's private

affairs, namely his decisions regarding the medical care provided to him in the event he became

unable to make those decisions for himself and the people who were supposed to make medical

decisions for him in the event he was unable to make the choices himself, whenDefendant ordered,

without any authority, the physicians at The Michael E. DeBakey VA Medical Center to withdraw

all care, including a ventilator, antibiotics and nutritional support from John Shearer and ordered

physicians to not resuscitate John Shearer. Defendant Corrine Augustine Nichols Hill Shearer was

not married to John Shearer at the time of his death, was not his legal guardian and did not have a

medical power of attorney. Accordingly, Defendant Corrine Augustine Nichols Hill Shearer did not

have the legal authority to make medical decisions for John shearer.

17. Under Texas law, Plaintiff David Shearer had the authority to make medical

treatment decisions for John William Shearer, III. Texas Health & Safety Code $ 166.039(b).

18. Defendant's intrusion into John Shearer's private affairs, namely his decisions

regarding the medical care provided to him in the event he became unable to make those decisions

for himself and the people who were supposed to make medical decisions for him in the event he

was unable to make the choices himself, would be highly offensive to a reasonable person.

lg. Defendant's intentional intrusion on John Shearer's private matters caused injuries

to John Shearer by preventing John's children from being with him during his final days/trours.

Plaintiffs David Shearer's Second Amended Petition Page 6
F. INDEPENDENT CAUSES OF AçTION ON BEHALF OF DAYID SHEARER

20. Defendant intentionally intruded on David Shearer's private affairs, namely the

medical treatment decisions regarding his father, i.e., whether to withdraw or maintain life support

for his father, John Shearer and whether to order a DNR, when Defendant ordered, without any

authority, the physicians at The Michael E. DeBakey VA Medical Center to withdraw all care,

including a ventilator, antibiotics and nutritional support from John Shearer, and ordered physicians

to not resuscitate John Shearer. Defendant Corrine Augustine Nichols Hill Shearer was not married

to John Shearer at the time of his death, was not his legal guardian and did not have a medical power

of attorney. Accordingly, Defendant Corrine Augustine Nichols Hill Shearer did not have the legal

authority to make medical decisions for John Shearer.

21. Under Texas law, Plaintiff David Shearer had the authonty to make medical

treatment decisions for John Shearer. Tex. Health & Safety Code $ 166.039(b).

22. Defendant's intrusion into Plaintifls private affairs, namely the decisions whether

to withdraw or maintain life support for his father, John Shearer, and whether to order a DNR, would

be highly offensive to a reasonable person.

23. Defendant's wrongful acts caused injuries to Plaintiff which resulted in the

following damages, severe mental anguish.

II. BREACH OF FIDUCIARY DUTY

24. Plaintiff David Shearer put his trust and confidence in Defendant. Specifically,

plaintiff called Defendant on a daily basis to check up and get an update on his father's condition'

plaintifftrusted that Defendant would accurately inform them ofthe medical condition of his father

PlaintifPs David Shearer's Second Amended Petition Page 7
and inform him, if the time ever came, that Plaintiff had to make a decision whether or not to have

doctors withdraw life sustaining medicines and machines from his father.

25. Defendant breached this fiduciary relationship by: (1) intentionally misrepresenting

John Shearer,s medical condition to Plaintift (2) usurping Plaintiff s right to make medical decisions

for his father, (3) failing to inform Plaintiff that she had ordered, without any authority, all life

sustaining medicines and machines be withdrawn from John Shearer,(4) failing to inform Plaintiff

that his father was dying after inexplicably ordering all life sustaining medicines and machines be

withdrawn from John Shearer, (5) and failing to inform Plaintiffthat Defendant was intentionally

misrepresenting herself to be the wife of John Shearer.

26 . Defendant' s breach of fiduciary duty proximately caused inj ury to Plaintiff, including

severe mental anguish. Moreover, Defendant's breach of duty benefitted Defendant as Defendant

(l) had the opportunity to say her goodbye's to John Shearer, (2) had the opportunity to dispose of

John Shearer's ashes as she deemed fit, and (3) seized John Shearer's business assets after declaring

a landlord's lien for failure to pay rent on the property John Shearer rented from Defendant. lndeed,

Defendant gave "notice" to John Shearer to remove his business assets and pay back rent by placing

a notice on the desk of John Shearer AFTER his death.

III. CONVERSION OF JOHN WILLIAM SHEARER.III'S ASHES

27. After the death of his father, Plaintiff David Shearer had the right to the immediate

possession of his father's body, including his ashes. Due to Defendant's intentional

misrepresentations that she was John Shearer's wife, Defendant wrongfully acquired possession of

John Shearer's body and later, his ashes.

Plaintiffs David Shearer's Second Amended Petition Page 8
28. Without any authority or right, Defendant Corrine Augustine Nichols Hill Shearer

wrongfully exercised dominion and control over John Shearer's body, and later, his ashes. ln fact,

Defendant intentionally disposed of John Shearer's ashes, without informing Plaintiffshe was going

to do so, and knowing that Plaintiff wanted his father's ashes.

29 . Defendant Corrine Augustine Nichols Hill Shearer's conduct caused Plaintiff injury,

specifically the loss of the intrinsic value of their father's ashes.

IV. INTENTIqNAL INFLICTION OF EMOTIONAL DISTRESS

30. Plaintiff s claims for intentional infliction of emotional distress are based on two

separate and distinct actions of Defendant Corrine Augustine Nichols Hill Shearer. Plaintiffls first

claim for intentional infliction of emotional distress is premised on Defendant's action of

intentionally and knowingly usurping Plaintiff s authority and right to make medical treatment

decisions for their fathe4 subsequently failing to inform them that Defendant had ordered all life

sustaining medicines and machines withdrawn from their father, and thus taking away Plaintiff s

ability to be with his father during his final hours, and consequently causing his father to pass away

alone. Plaintifls second claim for intentional infliction of emotional distress is premised on

Defendant's act of disposing of John Shearer's ashes without the consent or knowledge of Plaintiff

and directly contrary to Plaintiffs wishes that were known by Defendant.

31. Defendant Corrine Augustine Nichols Hill Shearer acted intentionally and/or

recklessly when she instructed, without any authority or right, the physicians at The Michael E.

DeBakey VA Medical Center to withdraw all life sustaining medicines and machines from John

Shearer, instructed the physicians not resuscitate John Shearer, concealed the fact that she had made

Plaintiff s David Shearer's Second Amended Petition Page9
such orders to the physicians from plaintiff on December 8,2009,and thus intentionally eliminated

any chance that Plaintiff be with his father during his final hours.

32. Defendant Corrine Augustine Nichols Hill Shearer's conduct in instructing, without

any authority or right, the physicians at The Michael E. DeBakey VA Medical Center to withdraw

all life sustaining medicines and machines from John Shearer, instructing the physicians not

resuscitate John Shearer, intentionally concealing the factthat she had made such orders to the

physicians from plaintiff on December 8, 2009, and thus intentionally eliminated any chance that

plaintiffbe with his father during his final hours, was extreme and outrageous and this conduct by

Defendant proximately caused the Plaintiff severe emotional distress in the past, and will likely

continue well into the future.

33. Additionally, Defendant Corrine Augustine Nichols Hill Shearer acted intentionally

and/or recklessly when she disposed, without any right or authority, the ashes of John Shearer

without the consent or knowledge of Plaintiff.

34. Defendant Corrine Augustine Nichols Hill Shearer's conduct in disposing of John

Shearer, s ashes without the knowledge and consent of Plaintiff was extreme and outrageous and this

conduct by Defendant proximately caused the Plaintiff severe emotional distress in the past, and will

likely continue well into the future.

G. DAMAGES

35. plaintiff David Shearer sues for the mental anguish he has suffered as the result of

the conduct of Defendant Corrine Augustine Nichols Hill Shearer'

Plaintiffs David Shearer's Second Amended Petition Page l0
H. EXEMPLARY DAMAGES

36. The conduct of Defendant as alleged herein is of such character as to make said

Defendant liable to David Shearer, Individually and as the Independent Administrator of the Estate

of John William Shearer, III, for exemplary damages. The conduct of said Defendant was done with

malice and/or in heedless and reckless disregard of the rights of the Plaintiff David Shearer,

Individually and as the Independent Administrator of the Estate of John V/illiam Shearer, III, and

involved such an entire want of care as to indicate that it was a result of conscious indifference to

the rights, welfare and safety of Plaintiff. Plaintiff seeks exempl ary damages, pursuant to T¡x. Crv.

pnac. & R¡rr¿. Coop $a1.003(a) (2), insuch an amount as may be found to be proper under the facts

and circumstances. plaintiff specifically pleads the applicability of TBx. Crv. Pnac. & REtr't. CooB

$ a1.008(c)(1), (4), (7).

I. DOCUMENTS TO BE USED

37. pursuant to Tpx. R. Crv. P. lg3.7,Plaintiff intend to use all documents exchanged

and produced between the parties, including, but not limited to, correspondence and discovery

responses during the trial of the above-entitled and numbered cause.

J. JURY DEMAND

38. Plaintiff hereby demands a jury for the final trial of this matter.

Plaintiffs David Shearer's Second Amended Petition Page l1
K. PRAYER

WHEREFORE, pREMISES CON SIDERED, Plaintiff requests that Defendant C ORRINE

AUGUSTINE NICHOLS HILL SHEARER be cited to appear and answer, and that on final trial

Plaintiff have:

a. Judgment against Defendant in a sum in excess ofthe minimumjurisdictional

limits of the Court;

b. ExemPlarY damages;

c. Pre-judgment and post-judgment interest as provided by law;

d. Costs of court; and

e. Such other and further relief to which Plaintiff may be justþ entitled.

Respectfu lly submitted,

SroAN, BecleY, HercnBn & PBnnv Law Fnu

State BarN

101 East Whaley Street

P. O. Drawer 2909

Longview, Texas 75606

Telephone: (903) 757-7000

Facsimile: (903) 757-7574

ATTORNEY FOR PLAINTIFF DAVID SHEARER

Plaintiffs David Shearer's Second Amended Petition Page 12
CERTIFICATE OF SERVTqE

The undersigned hereby certifies that atrue and correct copy of the foregoing has been

served on the following via United States-Çgrtified Mail Return Receipt Requested pursuant to

the Texas Rules of Civil Procedure this [Eay of March 2014:

Mr. J. Chad Parker

The Parker Firm, P.C.

3808 Old Jacksonville Road

Tyler, Texas 75701

Plaintiffs David Shearer's Second Amended Petition Page 13
Plaintiffs Demonstrative Exhibit 1
Date Time Duration From To

Nov. 3 2:00 PM 0:00 John David

2:02 PM 1:14 John David

3:50 PM 6:24 David John

Nov. 4 2:31 PM :25 David John

2:42 PM 0:00 John David

2:42 PM 1:33 John David

2:46 PM 14:10 David John

5:29 PM 3:03 John David

Nov. 5 1:02 PM 9:50 David John

Nov. 6 6:52 AM 0:00 Corrine David

6:53 AM 1:14 Corrine David

8:11 AM 11:20 David John

1:23 PM 7:05 Corrine David

4:56 PM 12:52 David Corrine

Nov. 7 10:56 AM 6:56 Corrine David

Nov. 8 12:59 PM 1:18 Corrine David

1:14 PM :27 David Corrine

2:19 PM 9:12 Corrine David

Nov. 9 3:40 PM 5:59 David Corrine

Nov. 10 10:07 AM 2:20 David Corrine

Nov. 11 2:48 PM 21:56 David Corrine

Nov. 12 2:54 PM :34 David Corrine

3:22 PM 0:00 Corrine David

3:22 PM 0:00 Corrine David

3:31 PM 0:00 Corrine David

3:32 AM 11:00 David Corrine

3:33 PM 1:32 Corrine David

Nov. 13 3:59 PM 3:25 David Corrine

Nov. 14 2:31 PM 4:58 David Corrine

Nov. 15

Nov. 16 10:04 AM 1:35 David Corrine

10:06 AM 5:29 David Corrine

Nov. 17 3:05 PM 8:48 David Corrine

Nov. 18

Nov. 19

Nov. 20 8:04 AM 9:55 David Corrine

Nov. 21

Nov. 22

Nov. 23 4:25 PM :26 David Corrine

Nov. 24 5:05 PM 9:57 David Corrine

Nov. 25 3:45 PM 11:00 David Corrine

Nov. 26

Nov. 27 11:42 AM 6:57 David Corrine

Nov. 28 9:39 AM :46 David Corrine

5:31 PM 0:00 Corrine David

5:32 PM :42 Corrine David

5:34 PM :32 David Corrine

6:00 PM :24 David Corrine

Nov. 29 11:07 AM 0:00 Corrine David

11:08 AM 3:58 David Corrine

11:09 AM 2:13 Corrine David

Nov. 30 11:39 AM 6:09 David Corrine

Dec. 1 3:47 PM 12:10 David Corrine

Dec. 2 3:38 PM :11 David Corrine

3:52 PM 3:25 David Corrine

Dec. 3 4:38 PM 11:31 David Corrine

Dec. 4 4:49 PM :19 David Corrine

Dec. 5 11:10 AM 4:36 David Corrine

Dec. 6 3:01 PM :11 David Corrine

6:23 PM :21 David Corrine

Dec. 7 5:00 PM :20 David Corrine

7:24 PM :39 Corrine David

7:26 PM 1:59 Corrine David

7:26 PM 11:28 David Corrine

Dec. 8 5:33 PM :06 David Corrine

6:00 PM 0:00 Corrine David

6:01 PM 6:31 David Corrine

6:02 PM 1:13 Corrine David

Dec. 9 8:25 AM :26 Corrine David
Tex. R. Civ. P. 272
Tex. R. Civ. P. 272

Rule 272 Requisites

The charge shall be in writing, signed by the court, and filed with the clerk, 

and shall be a part of the record of the cause. It shall be submitted to the 

respective parties or their attorneys for their inspection, and a reasonable 

time given them in which to examine and present objections thereto 

outside the presence of the jury, which objections shall in every instance be 

presented to the court in writing, or be dictated to the court reporter in the 

presence of the court and opposing counsel, before the charge is read to the 

jury. All objections not so presented shall be considered as waived. The 

court shall announce its rulings thereon before reading the charge to the 

jury and shall endorse the rulings on the objections if written or dictate 

same to the court reporter in the presence of counsel. Objections to the 

charge and the court's rulings thereon may be included as a part of any 

transcript or statement of facts on appeal and, when so included in either, 

shall constitute a sufficient bill of exception to the rulings of the court 

thereon. It shall be presumed, unless otherwise noted in the record, that the 

party making such objections presented the same at the proper time and 

excepted to the ruling thereon.
Tex. R. Civ. P. 274
Tex. R. Civ. P. 274

Rule 274 Objections and Requests

A party objecting to a charge must point out distinctly the objectionable 

matter and the grounds of the objection. Any complaint as to a question, 

definition, or instruction, on account of any defect, omission, or fault in 

pleading, is waived unless specifically included in the objections. When the 

complaining party's objection, or requested question, definition, or 

instruction is, in the opinion of the appellate court, obscured or concealed 

by voluminous unfounded objections, minute differentiations or numerous 

unnecessary requests, such objection or request shall be untenable. No 

objection to one part of the charge may be adopted and applied to any 

other part of the charge by reference only.
Tex. R. Civ. P. 278
Tex. R. Civ. P. 278

Rule 278 Submission of Questions, Definitions, and Instructions

The court shall submit the questions, instructions and definitions in the 

form provided by Rule 277, which are raised by the written pleadings and 

the evidence. Except in trespass to try title, statutory partition proceedings, 

and other special proceedings in which the pleadings are specially defined 

by statutes or procedural rules, a party shall not be entitled to any 

submission of any question raised only by a general denial and not raised 

by affirmative written pleading by that party. Nothing herein shall change 

the burden of proof from what it would have been under a general denial. 

A judgment shall not be reversed because of the failure to submit other and 

various phases or different shades of the same question. Failure to submit a 

question shall not be deemed a ground for reversal of the judgment, unless 

its submission, in substantially correct wording, has been requested in 

writing and tendered by the party complaining of the judgment; provided, 

however, that objection to such failure shall suffice in such respect if the 

question is one relied upon by the opposing party. Failure to submit a 

definition or instruction shall not be deemed a ground for reversal of the 

judgment unless a substantially correct definition or instruction has been 

requested in writing and tendered by the party complaining of the 

judgment.
Tex. R. Civ. P. 279
Tex. R. Civ. P. 279

Rule 279 Omissions from the Charge

Upon appeal all independent grounds of recovery or of defense not 

conclusively established under the evidence and no element of which is 

submitted or requested are waived. When a ground of recovery or defense 

consists of more than one element, if one or more of such elements 

necessary to sustain such ground of recovery or defense, and necessarily 

referable thereto, are submitted to and found by the jury, and one or more 

of such elements are omitted from the charge, without request or objection, 

and there is factually sufficient evidence to support a finding thereon, the 

trial court, at the request of either party, may after notice and hearing and 

at any time before the judgment is rendered, make and file written findings 

on such omitted element or elements in support of the judgment. If no such 

written findings are made, such omitted element or elements shall be 

deemed found by the court in such manner as to support the judgment. A 

claim that the evidence was legally or factually insufficient to warrant the 

submission of any question may be made for the first time after verdict, 

regardless of whether the submission of such question was requested by 

the complainant.
Tex. Health & Safety Code § 166.039
Tex. Health & Safety Code § 166.039

§ 166.039. Procedure When Person Has Not Executed or Issued a 

Directive and Is Incompetent or Incapable of Communication

*****

(b) If the patient does not have a legal guardian or an agent under a 

medical power of attorney, the attending physician and one person, if 

available, from one of the following categories, in the following priority, 

may make a treatment decision that may include a decision to withhold or 

withdraw life-sustaining treatment:

(1) the patient’s spouse;

(2) the patient’s reasonably available adult children;

(3) the patient’s parents; or

(4) the patient’s nearest living relative.

*****
Tex. Health & Safety Code § 711.002
Tex. Health & Safety Code § 711.002

§ 711.002. Disposition of Remains; Duty to Inter

 (a) Except as provided by Subsection (l), unless a decedent has left 

directions in writing for the disposition of the decedent's remains as 

provided in Subsection (g), the following persons, in the priority listed, 

have the right to control the disposition, including cremation, of the 

decedent's remains, shall inter the remains, and are liable for the 

reasonable cost of interment:

 (1) the person designated in a written instrument signed by the 

decedent;

 (2) the decedent's surviving spouse;

 (3) any one of the decedent's surviving adult children;

 (4) either one of the decedent's surviving parents;

 (5) any one of the decedent's surviving adult siblings; or

 (6) any adult person in the next degree of kinship in the order named 

by law to inherit the estate of the decedent.