King v. Acker

Decision Date22 January 1987
Docket NumberNo. 01-86-0227-CV,01-86-0227-CV
Citation725 S.W.2d 750
CourtTexas Court of Appeals
PartiesLorraine KING, Appellant, v. Kendra K. ACKER & Kimberly Jackson, Appellees. (1st Dist.)

William H. Scott, Jr., Houston, for appellant.

William E. Wylie, William E. Wylie, P.C., Tyler, for appellees.

Before SAM BASS, COHEN and DUNN, JJ.

OPINION

SAM BASS, Justice.

This is an appeal from a jury trial that found the appellant maliciously conspired to tortiously interfere with the inheritance of appellees. Damages awarded were $28,275.00 actual and $76,096.82 exemplary.

We reform and affirm.

Fred T. King, Jr. ("King") had two children, appellees Dahse and Jackson, born to his first wife, Louise King. Appellant, Lorraine King, later married King. King and Lorraine had separated many times and had filed for divorce on one occasion.

In January 1982, King was admitted to a hospital with a severe headache. Dr. Posey saw King on January 4, 1982. King was stable, mentally alert, and had full comprehension. On January 5, 1982, King had surgery for an aneurysm near his brain. Six days later, he became lethargic. On January 13, 1982, some neurological signs showed some deterioration of his brain. King lapsed into a coma and passed away on February 4, 1982.

On January 18, 1982, while King was in a coma, Mercurio, appellant's attorney, and appellant attempted to assign 500 shares of Petro-Chem Technical Services stock from King to appellant, using a power of attorney purportedly signed by King on January 4, 1982. Later, this stock was redeemed for $400,000 by a temporary administrator of the estate. The power of attorney was found by the jury not to have been signed by King.

In February 1982, Mercurio, attorney for appellant at that time, filed a purported will of King dated January 4, 1982, for probate. Previously, Brad Wright was appointed temporary administrator of King's estate pending a will contest. This will of January 4, 1982, was found by the jury not to have been signed by King. Based upon the jury's findings, a final judgment was entered admitting King's will dated June 13, 1977, to probate and appointed appellees as co-independent administratrices.

Lucille Lacy, a documents examiner, was paid $8,275 in connection with examining the 1982 will.

William E. Wylie, a board certified attorney in estate planning and probate law, was paid $76,096.82 in legal fees and expenses.

Appellees, Dahse, Jackson, and Aline L. King, King's mother, brought suit against appellant, Mercurio, Nancy Miller and Frank L. Saye, who witnessed the 1982 will. The cause of action against Mercurio, Miller, and Saye was severed.

Appellees' suit complained that if the 1982 will and the power of attorney had not been forged and filed for probate, there would have been no reason to have a temporary administrator appointed and the $20,000 statutory commission for the sale of the stock by the temporary administrator would not have been paid.

The findings of the jury were that:

1. King did not sign the power of attorney;

2. Appellant tortiously interfered with the inheritance of appellees with malice;

3. Appellees suffered actual damages in the amount of $28,275;

4. Appellant conspired to tortiously interfere with appellees' inheritance; and

5. Exemplary damages in the amount of $76,096.82 were awarded against appellant.

The court entered judgment for $104,371.82 plus interest of 10% per annum.

Appellant appeals upon 23 points of error, 12 of which rely upon no evidence, insufficiency of evidence, or against the great weight of the evidence.

In deciding "insufficiency of evidence" points of error, this Court is required to look at all of the evidence but may find error only if the evidence supporting the contested finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered. Dixon v. Van Waters & Rogers, 674 S.W.2d 479 (Tex.App.--Fort Worth 1984, writ ref'd n.r.e.).

In deciding "no evidence" points of error, this Court will consider only that evidence and inferences from the evidence that tend to support the jury's findings, and will disregard all evidence and inferences to the contrary. Shell Oil Co. v. Waxler, 652 S.W.2d 454 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.). A "no evidence" point is properly sustained only if there is a complete absence of evidence, or no more than a scintilla of evidence to support the contested finding. Tower View, Inc. v. Hopkins, 679 S.W.2d 632 (Tex.App.--San Antonio 1984, writ ref'd n.r.e.).

Appellant complains in points of error 1, 2, and 3, that there is no evidence, insufficient evidence, and that the evidence is so contrary to the overwhelming weight and preponderance of the evidence that it will not support the answer to issue 2, which found that appellant had tortiously interfered with the inheritance of appellees to receive property under the 1977 will.

Appellant testified that King called Mercurio to write the 1982 will and the power of attorney; however, the record reveals conflicting testimony from Mercurio and Miller, his secretary, concerning the time she was called to type the power of attorney. The testimony shows that appellant used the 1982 power of attorney to enter a safe deposit box to look for the 1982 will. Appellant, under the alleged authority granted by the power of attorney, signed deceased's name to assign 500 shares of stock of Petro-Chem Technical Services to herself while the deceased was in a coma.

Because the jury found that King did not sign the power of attorney, there is sufficient evidence to support the jury's findings that appellant tortiously interfered with the inheritance of appellees to receive property under the 1977 will.

Appellant's first three points of error are overruled.

In points of error 5, 6, and 7, appellant contends that there is no evidence, insufficient evidence, and that the evidence is so contrary to the overwhelming weight and preponderance of the evidence that it will not support issue 4, which found that appellant acted with malice in tortiously interfering with appellees.

The jury obviously did not believe appellant's proffered testimony that King had executed the power of attorney. Thus, the evidence is sufficient to support the finding of issue 4, that appellant acted with ill will, spite, and evil motive in transferring the stock and causing injury by tortiously interfering with appellees.

Appellant's points of error 5, 6, and 7 are overruled.

In points of error 9, 10, and 11, appellant contends that there is no evidence, insufficient evidence, and that the evidence is so contrary to the overwhelming weight and preponderance of the evidence to support issue 5, which found that appellant conspired with one or more persons to tortiously interfere with the inheritance of appellees.

Mercurio testified that he was present when the 1982 will and the power of attorney were executed, and that he, with the power of attorney, began the process to transfer the 500 shares of Petro-Chem Technical Services stock to appellant. Miller and Saye testified that they observed the execution of the 1982 will. Miller stated that she typed the 1982 will and power of attorney.

The record is full of inconsistencies between the testimony of appellant and that of the other alleged conspirators' testimony. A significant conflict exists in their answers to what, if anything, Mercurio said after the signing of the 1982 will. Miller testified at trial that Mercurio read the self-proving affidavit; however, in her previous deposition, she answered that Mercurio said nothing. Saye testified that Mercurio did not ask him any questions after he signed the 1982 will.

Because of the conflicts and inconsistencies in the testimony of the witnesses to the preparation and execution of the 1982 will, the evidence is sufficient to support issue 5, that appellant and one or more persons conspired to tortiously interfere with appellees' inheritance. It was the prerogative of the jury to accept or reject the testimony. See Royal v. Cameron, 382 S.W.2d 335, 339 (Tex.Civ.App.--Tyler 1964, writ ref'd n.r.e.).

Appellant's points of error 9, 10, and 11 are overruled.

In point of error 4, appellant contends that the answer to issue 2, which found that appellant did tortiously interfere with the inheritance of appellees, is not supported by sufficient pleadings upon which a recovery may be had.

Paragraphs I and III of plaintiff's second amended original petition sought recovery for damages from appellant for her tortious conduct and fraud in submitting the 1982 will and in using the power of attorney to transfer 500 shares of stock to herself. Appellees claimed recovery from appellant and her co-conspirators for: their tortious and fraudulent conduct; malicious action toward appellees; the 1982 forged will and power of attorney; and those documents' use. All of these acts caused damage to appellees for which they are entitled to seek compensation. Appellees also prayed for exemplary damages based on appellant's conduct.

Although Texas has never addressed this exact issue, such a cause of action for damages lies in other states for interference where there is an expected inheritance. Annot., 22 A.L.R. 4th 1234, § 3 (1983). The Supreme Judicial Court in Maine, for example, held that a person's opportunity to receive a benefit as a prospective legatee will be protected from tortious interference and that such a cause of action may be maintained even before the testator's death. Harmon v. Harmon, 404 A.2d 1020 (Me.1979).

Courts in other jurisdictions have held that a cause of action exists where the actor interfered with the inheritance by independent tortious conduct. McGregor v. McGregor, 101 F.Supp. 848 (D.Colo.1951), aff'd, 201 F.2d 528 (Cir.1953); Allen v. Leybourne, 190 So.2d 825 (Fla.1966).

The Restatement (Second) of Torts, sec. 774B (1977) provides:

One who by fraud, duress or other...

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