Thompson v. Mayes
| Decision Date | 03 April 1986 |
| Docket Number | No. 11-85-267-CV,11-85-267-CV |
| Citation | 707 S.W.2d 951 |
| Parties | Nancy THOMPSON, Individually and as Independent Executrix of the Estate of Donald Marshall Thompson, Appellant, v. Leonette MAYES, Individually and as Independent Executrix of the Estate of Jo B. Thompson, Appellee. |
| Court | Texas Court of Appeals |
Curtis L. Brown, Dallas, for appellant.
Garry Lewellen, Martin L. Peterson, McMillan & Lewellen, Stephenville, for appellee.
This is an appeal from a suit to impose a constructive trust on the assets which passed to Donald Marshall Thompson (Don Thompson) under the will of his father, Jo B. Thompson. The other devisee under Jo B. Thompson's will is his sister, Leonette Mayes. On December 19, 1984, Mrs. Mayes brought this suit alleging that a constructive trust should be imposed upon the assets that Don Thompson received under his father's will. Don Thompson committed suicide on January 16, 1985, and Nancy Thompson (Don Thompson's mother and the former wife of Jo B. Thompson) was substituted as defendant both individually and as independent executrix under her son's will. The jury found that on or about November 12, 1982, Don Thompson "intentionally and wrongfully caused the death of Jo B. Thompson by shooting him with a gun." A judgment imposing the constructive trust was rendered for plaintiff. Defendant appeals. We affirm.
Defendant, Mrs. Thompson, argues in her first point of error that the trial court erred in overruling her motion for judgment non obstante veredicto because this suit was barred by limitations. We disagree.
Defendant contends that the two-year limitation period prescribed in Article 5526(5) 1 applies in this case. The applicable portions of this statute provide:
There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
* * *
* * *
5. Action for injury done to the person of another where death ensued from such injury; and the cause of action shall be considered as having accrued at the death of the party injured.
A suit to impose a constructive trust is not an "[a]ction for injury done to the person of another"; rather, it is an action in equity to prevent unjust enrichment of a person who has wrongfully acquired property. Bounds v. Caudle, 560 S.W.2d 925 (Tex.1977); Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559 (1948). When the proven circumstances show that the holder of the legal title may not in good conscience retain the beneficial interest, then equity converts him into a trustee. Pope v. Garrett, supra; Parks v. Dumas, 321 S.W.2d 653 (Tex.Civ.App.--Fort Worth 1959, no writ).
In her second and third points of error, defendant contends that plaintiff's suit was barred because: (1) as a matter of law, plaintiff waived her right to file this suit for constructive trust by entering into an "Agreement as to Finality of Judgment" 2 in a prior suit to probate the will of Jo B. Thompson; and (2) as a result of her entering into the aforementioned agreement, plaintiff had unclean hands which was a bar to her suit in equity.
The "Agreement as to Finality of Judgment" was signed by Don Thompson and plaintiff. The agreement was made a part of the record in Cause No. 16,230, which was a suit to probate Jo B. Thompson's will by bill of review in the 266th District Court of Erath County. The judgment probating the will and the agreement as to its finality were signed December 19, 1984. The instant case was filed later that same day.
Nowhere in the aforementioned agreement is there a reference to either party's right to file a subsequent lawsuit involving matters not related to the probate of Jo B. Thompson's will. The agreement contains no language waiving the right to seek the establishment of a constructive trust on the assets received under the will. The agreement waives the right to appeal and makes the probate judgment final. Defendant's second point of error is overruled.
With regard to the unclean hands contention, the legal title of the assets passed to Don Thompson by virtue of his father's will. Plaintiff agreed that the judgment probating the will would become final and that she would not seek to disturb the judgment probating the will by appeal or otherwise. She has not sought to do so. Plaintiff has employed an equitable proceeding against the holder of the legal title for the wrong done and has impressed "a trust on the property in favor of the one who was in good conscience entitled to it." Pope v. Garrett, supra. It has not been shown that plaintiff's hands were unclean. Defendant's third point of error is overruled.
In her fourth point of error, defendant argues that plaintiff was not entitled to The jury found that Don Thompson intentionally and wrongfully caused the death of his father. There is no challenge to the sufficiency of the evidence to support that finding. Therefore, the fact that the jury's verdict was based on circumstantial evidence is not relevant to the propriety of imposition of the constructive trust.
have a constructive trust imposed under the facts and circumstances of this case. Defendant contends that the provisions of TEX.CONST. art. I, sec. 21 and TEX.PROB. CODE ANN. sec. 41(d) (Vernon 1980) provide that not even murder or suicide would have caused Don Thompson to forfeit his share of his father's estate. Therefore, since Don Thompson was not indicted for his father's murder and since the evidence linking him to his father's death is circumstantial, the imposition of a constructive trust in this case would be an inappropriate expansion of this doctrine. We disagree.
Application of the settled law in this State to this set of facts permits the imposition of a constructive trust. As stated by the court in Bounds v. Caudle, supra at 928:
Texas courts have taken the position that the law will impose a constructive trust upon the property of a deceased which passed either by inheritance or by will if the beneficiary willfully and wrongfully caused the death of the deceased.
Defendant's fourth point of error is overruled.
In Point of Error No. 5, defendant contends that plaintiff's case is barred by res judicata and by the doctrine of merger and bar. She argues that the constructive trust cause of action should have been included in the bill of review suit to probate Jo B. Thompson's will 3 and that the judgment probating the will distributed the estate to Don Thompson and plaintiff; therefore, the prior suit was a final disposition of the assets, and it barred any subsequent suits concerning those assets.
The Texas Probate Code expressly provides that district courts have jurisdiction over suits to apply constructive trusts. TEX.PROB. CODE ANN. sec. 5A(b) (Vernon 1980). Defendant cites the case of Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.1971), as support for her argument that any action which could have been brought in the proceeding to probate the will should have been litigated in that proceeding. Abbott is clearly distinguishable. In Abbott, the plaintiff's original suit was based on negligence in preparing and furnishing a drug to the plaintiff. In a subsequent suit, which the court held was barred by res judicata, the plaintiff pled products liability as the theory of recovery for the same alleged injuries arising from the same incident involving the drug. The court stated at page 642 that:
[A] party cannot relitigate matters which he might have interposed, but failed to do so, in an action between the same parties or their privies in reference to the same subject matter. (Emphasis added)
A suit to probate a will does not involve the "same subject matter" as a suit to impose a constructive trust.
The bill of review suit to probate the will dealt with the authenticity of the will and proof that the testator was dead. The instant suit involves the question of whether Don Thompson intentionally and wrongfully caused his father's death. The theory of recovery, the operative facts, and the measure of recovery are all different in this case. Therefore, this suit is not barred by res judicata. Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973); Abbott Laboratories v. Gravis, supra; Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963); Moore v. Snowball, 98 Tex. 16, 81 S.W. 5 (Tex.1904); Dobbs v. Navarro, 506 S.W.2d 671 (Tex.Civ.App.--Houston [1st Dist.] 1974, no writ).
In Point of Error No. 6, defendant contends that the trial court abused its discretion in excluding the testimony of a psychologist Defendant's attorney revealed to the court that he intended to ask Dr. Wichern his opinion concerning whether or not Don Thompson "may have" killed his father. Plaintiff's attorney took Dr. Wichern on voir dire to determine the basis of any opinion proffered by the doctor. Dr. Wichern testified that he had no personal knowledge of or contact with either Jo B. Thompson or Don Thompson. After Don Thompson's suicide, Dr. Wichern talked to six people for less than one hour each concerning their relationships with Don Thompson. Some of these people did not have a relationship with Don Thompson at the time of his father's disappearance. One person had neither known nor had any personal contact with Don Thompson. Dr. Wichern reviewed both Don Thompson's high school transcript and a summary prepared by his mother, the defendant, of his growth and development. Dr. Wichern listened to the tapes made by Don Thompson before he shot himself. The only other knowledge that Dr. Wichern had of Jo B. Thompson's disappearance was what he had read in The Dallas Morning News. Dr. Wichern testified that he compiled all of this information into a "psychological autopsy" in an effort to determine Don Thompson's state of mind at the time of his father's disappearance.
Dr. Frank Wichern, regarding his opinion as to Don Thompson's non-involvement in his fa...
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