1 Ralph Pasl ey i s now deceased. NO. 07-03-0540-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D AUGUST 18, 2005

______________________________

BILLIE J. PASLEY , Appellant v. DENNIS P

ASLEY a nd BARB ARA PAS LEY-DAV IS, Appellees

_________________________________ FROM THE 31 ST DISTRICT COURT OF WHEELER COUNTY ; NO. 11,104; HON. STEVEN R. EMMERT, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. Appellant

BillieJ. Pasle y (Billi e) appea ls from a judgment after a jury verdict in favor of appellees Dennis Pasley (Dennis) a nd Barbara Pasley Da vis (Barbara) against Ralph Pasley(Ralph) and Billie. 1 Through 14 issue s, she co mplains that the t rial cou rt: 1) erred in denying her seco nd motion to recusethe Hon. Steven R . Emmert, 2) erred in continuing trial with only 11 jurors without her consent, 3) erred in allowing ajudgment to be rendered againstthe Estate of Ralph Pasley when the Estate w as not served with citation and did2

notpartic ipate at tri al, 4) erred in refusing special issues on co ntributory negligence and laches, 5) erred in refusing to grant her motions to disregard jury findi ng s, 6) err ed in refusing to grant her motio n for judg ment notw ithstand ing the v erdict, 7 ) abused its discretion “in voicing ex parte interruptions” of her counsel’s closing argument, 8) erred in refusing to admit evidence of financial activity between R. J. Pasley Construction Company and Dennis and Barbara, 9) erred in allowi ng the te stimony of Jerry Bob Jernigan, 10) erred in refusing to admit evidence of credits she was entitle d to on a life insurance policy of Ralph, 11) erred in refusing to admit evidence of gifts made to Barbara “by Ralph Pasley from R. J. Pasley Construction, Inc.,” and 12) erred in stating thatit would restrict evidence offered bythe defense because trial was running behind schedule. We affirm the judgment of the tri al court. Background Ralph Pasley was marri ed to Hel en Marie McCoin P asley. B arbara an d Dennis were their two children. Helen died i n 1989 l eaving awill wh ich estab lished t wo testam entary trusts. Ralph was named executor of the estate and trustee of the two trusts. Dennis and Barbara were beneficiaries under the trusts and substitute trustees of the trusts. Prior to Helen’s death, Ralph began a relationship wi th Billie. He also purchased a ladies store in Shamrockfor

Billieand her daughter

. After Helen’s death, Ralph and Bill ie married. When Ralph di ed in 20 01, he le ft the majo rity of hi s estate to Billi e. Dennis and B a rbara filed a lawsuit for breach of fiduciary duty by Ralph and conspiracyby Ralph and Billie. The jury found that 1) Ralph did not c omply with his fiduciar y duties to Dennis and Barbara and wi llfully committed such acts, 2) Billie conspired with Ralph by

knowingly participating and benefitting in Ralph’s failure to comply w ith his3

fiduci arydutie s, 3) various properties were acquired in part by funds co mmingled as a resultof Ralph ’s failu re to perf orm his fi duciary d uties or from rollo vers of ea rlier pro perty affected by Ralp h’s fail ure to com ply with those sa me duties , and 4) D ennis an d Barbara had no reason to k now prior to September 14, 1997, that Ralph had repudiated Hel en’s trusts. The jury entered a verdict favoring Dennis and Barbara, and judgment was entered upon tha t verdict. Issue 1 - Recusal Billie claims in her first issue that the trial court erred in denying her motion to recuse Judge Steven R. Emmert. We overrule the issue for the follow ing reasons. She initially contends that the Texas Constitution prohibits a judge from sitting in any case in which he may

have a pecuniary or personal interest in theoutcome. Billie mentions
no pecunia ryinterest which the judge may have in the outcome. So, that cannot be used as a ground warranting recusal. Second, as for his alleged personal interest in the outcome, she cites to actions undertaken by the judge while in private practice. Th ey include suing a co rp oration in which Ralph was an officer, holding funds in escrow for Ralph , writi ng title opinions covering property sold by Ralph and Bi lli e, and expressing “personal upset that a prior motion [to recuse] had been file d .” Billie conceded at the hearing upon her motion that there was no one item that would justify a motion to recuse; h owever, she argued that the trial cou rt should conside r the tota lity of th e circums tances. The trial court found, and we agree, that ownershipof real estate is a matter of publicrec ord and there is no showing that Judge Emmert had gai ned specialized knowledge through his title work on any matter at issue i n the cas e at bar. Nor does Billie4

attempt to explain how Emmert’s assi sta nce in legal matters distinct from the current controver

sy prejud iced Emme rt agains t her. Further, the escrowaccount held on behalf of Ralph by the ti tle compa ny of Emme rt while in p rivate prac tice mere ly evinced a busi ness rela tionship which d id not re quire recusal. See Wood

ruff v. Wri

ght, 51 S.W.3d 727, 737-38 (Tex. App.--Te xarkana2001, pe t. denied) (holding that evidence a surgeon operated on the judge’s mother several years ago and officiated as a substitute at the surgeon’s wedding showed a mere business relationsh ip or acqua intances hip between the ju dge and surgeon w hich did not requ ire recusal in a medical malpractice lawsuit). Similarly, Judge Emmert did represent two employee s of the R . J. Pasley Construction Company as beneficiaries of the company’s defined benefit plan and trust against Ralph in 1994. But , th ere was no showing that he gained “personal knowledge of disputed evidentiary facts” involving the current case. Nor does the representation of those employees indicate that he had some bias against either Ralph or Bill ie, espe cially w hen she f ails to d escribe t he exten t of Ra lph’s personal involvementin the suit and whether any acrim ony deve loped be tween Ra lph and Emmert. As to the complaints of bias or impartiality based on Judge Emmert’s comment that he was angry due to a prior recusal motion havi ng been filed after he denied Billie’s motion for summary judgment, Billie’s counsel admitted that he did not file the motion un ti l the Thursdayprior toa Mondaytrial setting. Moreover, by the time the motion had been fil ed, jurors had alre ady been notified to report for servi ce. It wo uld takeextra wo rk to noti fy them that they need not report. Counsel also admitted he could unde rstand why Emme rt would be unhappy

about th at situat ion.5

Opinions formed by a judge on the basis of facts introduce d o r events occurring during the proce edings d o not con sti tute a basis for recusal unless they display deepseated favoritism or antagonism that would make a fair trial im possibl e. Ludlow v. DeBerry, 959 S. W.2d 265, 28 1(Tex. App.--Houston [14 th Dist.] 1998, no pet.). The alleged bias in this instance

occurred during t he courseof the pr oceedin g. Furt her, the j udge’s alleged remark does no t show deep -seated favoritism or antagonism so as to make a fair trial impossible. Indeed, it simply evinced reasonablefrustration experienced by a judge when
a litigant undertakes a belated course of conduct to disrupt the progressi on of a suit after discover ing that the judgemay not s ide with the liti gant on p articula r matters. In sum, none of the alleged grounds for recusa l were sufficient to warrant recusal. Further, Billie cites to no cases, and we have foun d none, which indicate that we may consider the total ity

of all the alleged grounds when none of them ind ividual ly are su fficient. Therefore, we h old that the trial court did not abuse its discretion in refusin g to grant the second mo tion to re cuse Jud ge Emmert. Issue 2 - 11 Juror

s In her second issue, Billie contends that the trial cou rterred in proceeding with trial with only 11 jurors. We overrule the issue. After trial began and testimony had been heard, the trial court noted that a juror had b een seate d who had been previously struck by Bil lie. At that time, counsel for Billie indicated that Billie had alre ady mentioned that fact to him. However, her counsel had made no objec tion prior to the court raising the subject. The court later stated on the record thattrial would proceed by agreement with 11 jurors. Th ough the record does not6

reflect that Bil lie agre ed to so proceeding, it nevertheless illustrates that the trial continued with onl y 11 juror

s. Addit ionally , nothing indicates that B illie v oiced ob jection to

that. To preserve a complaint for appellate review, the record must show the complaint
was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling s ought wi th suffici ent speci ficity tomake the trial cou rt aware of the co mplaint. T EX
. R. A PP
. P. 33.1(a)(1)(A). Since the record does not disclose that Billie objected to the trial court’s dec ision to continue with only 11 jurors, she nei ther complied with Rule 33.1(a)(1)(A) nor

preserve d the comp laint for review. See In re

Lynch, 35 S.W.3d 162, 166 (Tex. App.-- Texarkana2000, no pet.) (holding that the right to a 12-person jury was waived when a jury of six was impaneled witho ut object ion); Dickson v. J. Wein garten, In c., 498 S.W.2d 388, 391 (Tex. Ci v. App.--H ouston [1 st Dist.] 19 73, no wr it) (holding that because the appellant did no t object to t he trial proceeding with 11 jurors, the plaintiff waived his right to o bject on a ppeal). Issue 3 - Failure t

o Join th e Estate In her third issue, Billie contends that the trial court had no personal jurisdiction to render its judgment against Ralph because the Estate of Ralph J. Pasley was never named in or served with the original petition. Nor did it participate at trial. We overrule the issue. Billie admits that “[i]n the documents appointing him as Independent Executor of the Estate of Ralph J. Pasley[,] Mr. Kessie did agree to be bound by thedecisio n of the C ourt in this matter.” Given this agreement and the fact that Billie is not the independent executor of Ralph’s estate, we conclude that she lacks standing to compl ain of th e purported defect

.

Issues 4 and 5 - Contributory Negligence and Lach es7

Billie alleges in her fourth and fifth issues that the trial co urt erred i n refusin g to submitto the jury special issues on contributory negligence and laches. We overrule the issues. A trial court must submit questions, instructions, and definitions raised by the written pleadings and the evidence

. T EX
. R. C IV
. P. 278. Additionally, the failure to submit an i ssue is not basis for reversal unless its submission in substantially correct wording h as been reques ted in writi ng and te ndered b y the part y complai ning of t he judgme nt. Id.; Barne tt
v. Coppell

North Te

xas Court

, Ltd, 123 S.W.3 d 804, 82 4 (Tex. A pp.–Dall as 2003, pet

. denied); Doe v. Mo bile Vi deo Tape s, Inc., 43 S.W.3 d 40, 50 (Tex. App.–Co rpus Chri sti 2001, no pet.). Merely dictating the issue into the record do es not suffi ce. Jarrin v. Sam WhiteOldsmobile Co. , 929 S.W. 2d 21, 25 (Tex. Ap p.–Houston [1 st Dist.] 1996, writ denied)

. Whi le Billie objected to the court’s charge and di ctated her proposed question s into th e
r ecord, we find no separate written request for those questions i n the r ecord

. Consequ ently, sh e failed to preser ve the al leged er ror for rev iew. Issues 6 and 8 - J

ury Findi

ng on Dis covery o f Breach of Duty Billie claims in her sixth issue that the trial court erred in failing to grant her motion to disregard the jury’s finding that Dennis and Ba rbara did not knowand should not have known that their father was breaching his fidu ciary du ty to them before September 14, 1997. Simila rly, she a rgues in her eighth issue that the trial court should have granted judgment notwithstanding the verdict because Den nis and Ba rbara knew or should have known that their father was disposing of their trust property. We overrule the issues. According to Billie, the evidence showed that before 1 997, Ralph was conveying property as Independent Executor of th e Estate of Helen Pasley and as trustee of the8

testamenta rytrusts. A nd, becau se those deeds we re a matter of public record, Dennis and Barbara purportedly ha d constr uctive notice of his misconduct. Yet, the record also illustrates that the will through which the trust was created granted Ralph, as trustee and executor of the estate, the authority to sell and otherwise convey both thepersonalty and
re alty comprising the estate and trust corpus. Ralph having that power, we are left to wonder how conveying property by one authorized to do so places others o n noti ce of miscondu ct. Billie does not explain that in her brief. Nor are we willing to say that it does as a matter of law, as she would have us do. Issue 7 - Jury Finding on Conspiracy In her seventh issue, Billie challen ges the tr ial cour t’s failu re to grant he r motion to disregar d that jury finding wherein she was found to have conspired wi th Ralph i n committing the breaches of fiduciary duty involved. We overrule the issue. The elements of a civil conspiracy are: 1) two or more persons, 2) an object to be accomplished, 3) a meeting of the minds on the object or course of actio n, 4) oneor more unlawful, overt acts, and 5) damag es as a p roximateresult. Trostle v . Trostle , 77 S.W.3d 908, 9 15 (Tex. App .–Amarillo 2002, no pet.). The jury answered affirmatively to the question: “Did Billie J. Pasley conspire with Ralph J. Pasle y by knowingly participating in and benefiting [sic] from Ralph J. Pasley’s failure to co mply with h is f iduciary duties to Denni s Pasleyand Barb ara Davi s and wa s Billi e J. Pasl ey’s part icipatio n, if any , a proximat e ca use of the damages you have found?” Though she did not object to t h e wording or form of this question, Billie now asserts that there is not a scintilla of evidence of an object to be accomplished by the parties nor of a meeting of the minds on the object
or courseof actio n.2 The j ur y f oun d t hat

t hr ee h omes , var io us a nnu it ie s, an I RA account , two vehicl es, a f arm accountat Nation al Bank of Commerce, an d the j oint checking account were all acquired wit h comm ingled f unds. Th is finding has not b een cha llenge d on app eal. 9 A conspiracymay be established by circumsta ntial ev idence. Lesikar v . Rappep ort, 33 S.W.3d 282, 302 (Tex. App.–Texarkana 2000, p et

. denied). An agreement between parties on a course of action need not be formal but

may be ta cit. J.T.T. v. T ri, 111 S.W.3d 680, 684 (Tex . App.–Ho uston [1 st Dist.] 20 03), rev’d on other grounds, 162 S.W.3d 552 (Tex. 2005). It is also not essential that each consp irat or have knowle dge of the details. Id. Additionally, inferences of concerted act ion may be drawn from participation in the transactions and from the enjoy ment of the fruits of the transa ctions. Id. ; Lesikar v. Rappepo rt, 33 S.W.3d at 302, citing In ternation al Banke rs Life In s. Co. v. H olloway , 3 6 8 S.W.2d 56 7, 581-82 (Tex. 19 63). Here, evidence showed that Ralph never set up separate bank accounts for the estate or the trusts but commi ngled th e funds i n his ow n bank account. 2 Further, after he married Billie, his account was made a joint one with her. She also joined in a d eed conveying part of the trust property which Ralph signed indi vidually and as trustee with the proceeds going into their joint account. Additionally, Billie’s son earned a fee of $11,000 on the sa le of tha t property

. Moreover, other evidence depicts that Billie wanted Ral ph to pur chase a p roperty known as “the Fain” residence even though he had already deeded to he r the house on South Main Stre et in whi ch they l ived. Th e Fain re sidence was purch ased and deeded to Billie in 1994 as her separate property. Billie’s daughter then live d in the South Main Street home without rent. Around the time of Ralph’s death, Billie, who was the sole heir of the10

joint bank account under Ralph’s will, transferred $153 ,000 from their joint account to her separateaccount. Although some of the money wa s replace d in the joint account, some
was not. Billie’s son and daughter add itionally receive d payments of $6000 and $19,308.43 respectivelyfrom the jo int account of Ralph and Billie for whi ch there is no evidence that itwas ever repaid. Moreover, within a month after Ralp h’s d eath, Billie changed the beneficiar ies on one o f the ann uities (w hich thejury foun d had be en acqui red with commingled funds) from Denn is and B arbara toher own children. The jury could infer from this evidence that Bi llie kno wingly p articipa ted in th e financ ial transactions involving commingled funds and benefitted from them. This, in tur n, would allow it to reasonably infer that she was part of a conspiracy. Issue 9 - Interruption of Argument As her ninth issue, Billie complains of the trial court’s sua spon te interruption of her closing argument. We overrule the issue. Assuming arguendo that a trial court lacks the authority to correct what it perceives to be a misrepresentation of the record, Billie did not object to the purported interference. Instead, her cou nsel a pologized to the court. Given the lack of an o bjection, she did not preserve her compl aint. See T EX
. R. A PP
. P. 33.1(a)(1)(A) (requiring a contemporaneous objection to preser

ve a comp laint for

appella te review ). Issues 10, 13, and 14 - Financial Activity of Construction Compan y Byway of h er tenth, thirteent h, and fo urteenth issues, Billie contends the trial co urt erred in excluding evidence of payments of monies being giv e n by R. J. Pasley Construction Company (a corporation) to Dennis and Barbara. The eviden ce was excluded because it was deemed irrelevant. However, Billie believed that it tended to show that “trust money wa s being spent” im pro perly by R alph, and that “would have put them on11

notice and triggered the Statute of Limitations . . . .” So too was it evi d ence that neither child was being “deprived” of trust property, according to her. We overrule the issues. The suit initiated by Barbara a nd Dennis concerned the fiduciary duties imposed upon Ralph due to his positionsas executor of his dead wife’s estate an d as trustee of the two testamentarytrusts she created. While one or more of the trusts apparently owned the stockof the c onstruct ion company, Billie does not deny that the gifts and monies in question actually belonged to the corporation. Nor does she argue that the relationship between the corpo ration an d trusts was such that the distinct entities were actually one and the same for purposes of asset own e rship. Nor can we forget that a corporation is recognized as an entity distinct from those who own its stock. Pabich v . Kellar , 71 S.W.3d 500, 507 (Tex . App.–Fo rt Worth 20 02, pet. d enied). In other words, stockholders do not personallyown the individual assets of the corporation. In re Marr iage of T hurmond , 888 S.W.2d 269, 279-80 (Te x. App. – Amarillo 1994, writ denied). Given this, we cannot say that the tri al court abu sed its discretion in concluding that payments or gi fts made by the corporation to Barbara and Dennis were irrelevant to the issue of whether Ralph breached his fiduciary duties arising from his status as exec utor of the estate and trustee of the trusts. Nor

can we say that the trial court erre d when i t told Bi llie tha t it was g oing to“call[] irrelevance objections real close” and that it was “going to start narrowing this thing [the presentation of irrelevantevidence] down.” We know of no authority that obl igates a trial court to a dmit irrel evant evi dence, an d Billi e cites u s to none

.

Issue 11 - Eviden ce in Vio lation of Dead M an’s Rule12

In her eleventh issue, Billie argues that the trial court erred in “allowing the testimony of Jerry Bob Jernigan in violation of the D ead Man’s Statute,” that is, Texas Ru le of Evidence 601(b). We overrule the issue. Jernigan was not a party to the suit, and Billie fails to contend that he had an interest in the claims being litigated. Thisis fatal to her complaints since Rule 601(b) applies to the testimony of a party, T EX
. R. E VID . 601(b) ( stating t hat neith er “party s hall be allowed to testify against the others as to any oral statement by the te stator, intestate or ward . . .”); accord, Adamsv. Barry, 560 S.W.2d 935, 937 (Tex. 1978) (so stating), or a person having
an actual a nd direc

t interes t in the m atter bei ng litig ated. Tuttle v. Simpso n, 735 S.W.2d 539, 542-43 (Tex. App.–Texarkana 1987, no writ); Ford v. Roberts, 478 S.W.2d 129, 133 (Tex. Ci v. App. –

Dallas 1972, wri t ref’d n. r.e).

Issue 12 - Eviden ce of Cre dits Finally, Billie complains of the trial court’s failure to allow evidenceof credits she is allegedly entitled to for maintenance of a life insurance po licy on Ralph which was part of the assets of the trusts. We overrule the issue. The argument proffered before us is founded upon §230 of the Texas Probate Cod e. Thatprovision obligates an executor or administrator to care for the property of the estate. T EX
. P ROB
. C ODE A NN
. §230 (Vernon 2003). Yet, nothing was said at trial about §230 or that it implicitly obligated Ralph to purchase life insurance to f ur ther his duties as trustee
or executo r. Given that the grounds for objection uttered below donot comport with those made h ere, Bil lie did not prese rve her cl aim for re view. Moser v. D avis, 79 S.W.3d 162, 169 (Tex. App.--Amarillo 2002, no pet.) (holding that the ground s supporting an objection asserted below mu st comport with tho se raised on appe al).13

Having o verruled each iss ue raise d by Bil lie, we affirm thetrial co urt’s judg ment.

Brian Quinn Chief Justice