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Healey v. Healey

Court of Appeals of Texas, Twelfth District, Tyler

July 12, 2017

E. PETER HEALEY, APPELLANT
v.
EDWIN N. HEALEY, ELIZABETH HEALEY AND MICHAEL R. HEALEY, APPELLEES

          Appeal from the 3rd District Court of Henderson County, Texas (Tr.Ct.No. 2014C-0638)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          OPINION

          James T. Worthen Chief Justice

         E. Peter Healey (Pete) appeals from an adverse judgment rendered after a jury trial in this family dispute involving duty and money. Initially brought by his father, Edwin N. Healey (Bud), against Pete and his brothers Paul C. Healey and Mark J. Healey, the suit widened when Pete named his siblings, Elizabeth Healey (Liza) and Michael R. Healey (Mike) as third-party defendants. Pete asserts ten issues raising sufficiency of the evidence and charge error regarding Bud's claims against him, and attacking the summary judgment rendered in favor of Liza and Mike on Pete's defamation claim. We affirm.

         Background

         Bud and Betty, residents of a retirement home, asked one of their five children, Pete, to help manage their finances and executed powers of attorney (POAs) naming Pete as their agent. They also loaned money to Pete and allowed him to live in the home they had vacated. Eventually, the family was in turmoil about Pete's handling of Bud and Betty's money. In January 2013, Bud and Betty signed new POAs, naming Mike and Liza as their agents, and relieving Pete of his duties. Also in January, they created a trust, naming Mike and Liza as co-trustees. Betty died in June 2013. Later that year, Bud sued Pete and two of his other sons, Mark and Paul, in Tarrant County, to recover certain sums of money. Bud alleged breach of fiduciary duty and breach of contract by Pete. Additionally, he sued all three for money had and received, and he sued Pete and Paul for violations of the Texas Theft Liability Act. Pete sued siblings Mike and Liza in Henderson County, asserting defamation and breach of fiduciary duty. The Tarrant County court granted Pete's motion to transfer venue to Henderson County, and the two cases were consolidated.

         The trial court granted Mike and Liza's motion for partial summary judgment on Pete's defamation claim and the parties proceeded to a jury trial on the remainder of the issues. The jury found in favor of Bud, Mike, and Liza. The trial court rendered judgment on the jury's findings, awarding Bud actual damages, exemplary damages, and attorney's fees, awarding Mike and Liza attorney's fees, and ordering that Pete take nothing on all claims asserted by him. Pete alone appealed from the final judgment.[1]

         Partial Summary Judgment-Defamation

         In his first issue, Pete contends the trial court erred in granting Mike and Liza's motion for partial summary judgment which disposed of his defamation claim against Mike and Liza. He asserts that emails written by Mike and Liza contain defamatory content and he was damaged by their defamation of him. Pete argues that Mike and Liza passed their hostility and defamation of Pete to Bud and Betty and, when combined with his parents' diminished capacity, led to his parents' execution of POAs in January 2013, which precipitated this controversy.

         Pete alleged that Mike and Liza published defamatory statements to family members and friends. Mike and Liza filed a combined no evidence and traditional motion for partial summary judgment, arguing there is no evidence of the elements of defamation. While the motion addressed all of Pete's claims against Mike and Liza, the trial court granted the motion only as to Pete's defamation claim.

         Standard of Review

         We review the trial court's decision to grant summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). After adequate time for discovery, a party without the burden of proof at trial may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense. Tex.R.Civ.P. 166a(i). The motion must specifically state the elements for which there is no evidence. Salazar v. Ramos, 361 S.W.3d 739, 745 (Tex. App.-El Paso 2012, pet. denied). Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged element. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).

         A no evidence summary judgment is essentially a pretrial directed verdict and is therefore reviewed by the same legal sufficiency standard applicable to a directed verdict. Id. at 581; City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). The entire record must be reviewed in the light most favorable to the nonmovant, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence and inferences unless reasonable jurors could not. Gonzalez v. Ramirez, 463 S.W.3d 499, 504 (Tex. 2015) (per curiam). As pertinent here, a no evidence challenge will be sustained when there is a complete absence of evidence of a vital fact or the evidence offered to prove a vital fact is no more than a mere scintilla. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair minded jurors to differ in their conclusions. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam); Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). When a party has moved for summary judgment on both traditional and no evidence grounds, we typically first review the propriety of the summary judgment under the no evidence standard. See Tex. R. Civ. P. 166a(i); Merriman, 407 S.W.3d at 248.

         Applicable Law

         The elements of defamation include (1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages. In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015) (orig. proceeding). A statement is defamatory if it tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation. Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2017); Main v. Royall, 348 S.W.3d 381, 389 (Tex. App.-Dallas 2011, no pet.). To qualify as defamatory, a statement should be derogatory, degrading, somewhat shocking, and contain elements of disgrace. Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 356 (Tex. App.-Houston [1st Dist.] 2013, pet. denied). But a communication that is merely unflattering, abusive, annoying, irksome or embarrassing, or that only hurts the plaintiff's feelings, is not actionable. Id.

         Subjective assertions are not actionable as defamation. Fawcett v. Rogers, 492 S.W.3d 18, 28 (Tex. App.-Houston [1st Dist.] 2016, no pet.) (op. on reh'g). Statements that are not verifiable as false cannot form the basis of a defamation claim. Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013). A defamatory statement must be sufficiently factual to be susceptible of being proved objectively true or false, as contrasted from a purely subjective assertion. Vice v. Kasprzak, 318 S.W.3d 1, 18 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). Expressions of opinion may be derogatory and disparaging but nevertheless be constitutionally protected. Id. Whether a publication is an actionable statement of fact or a constitutionally protected opinion is a question of law. Main, 348 S.W.3d at 389. If we determine that the statements are not capable of a defamatory meaning, we need not consider whether the complained-of statements are false or not substantially true. See Huckabee v. Time Warner Entm't Co., L.P., 19 S.W.3d 413, 429 (Tex. 2000).

         Analysis

         In response to the motion's contention that there is no evidence of defamation, Pete presented his affidavit referencing attached emails. In his affidavit, Pete states that the "emails are an assertion of fact, referring to [Pete] which contain numerous false statements of [his] acts, reputation and character." This statement is conclusory and therefore no evidence. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam).

         As an exhibit to his affidavit, Pete included an email chain between Liza and Pete's daughter, Paige, who had recently visited Bud and Betty. Paige initiated contact, addressed to several family members, describing her observations of her grandparents and expressing certain concerns. Liza responded, "copying [her] daughters." Regarding Bud and Betty's finances, she stated that some items "are covered by Medicare which loosens the tight budget restrictions Mom and Dad must endure because Pete refuses to return their funds and repay the significant loans he made to himself from their funds." In response to Paige's response, Liza admonished Paige, stating, "If you are truly concerned about your grandparents' care and comfort, you will encourage your father to return their money, repay the loans and provide Mike and me with the records we so desperately need to continue to act in Mom and Dad's best interest."

          Liza merely complained that Pete failed to return money and provide records. This would appear to be objectively verifiable. Pete presented a one page document he called a summary of income and resources of Bud and Betty. It is extremely general but does list Pete's name and the amount "175, 500.00" under the heading "Secured Note." Pete also presented a second version of the same document. The second summary states that Pete owes "200, 000.00." Neither summary mentions funds returned by Pete or shows that he turned over accounting records to anyone. Pete did not present any summary judgment evidence raising a fact issue on whether Liza's comments were false. See Neely, 418 S.W.3d at 62; Tamez, 206 S.W.3d at 582.

         Pete also relied on a lengthy email, dated January 8, 2013, written by Mike in response to an email from Pete. In the email, addressed to the siblings, Mike described his "view of Pete's behavior." Mike referenced Pete's "belligerence, " "awful behavior, " and "bizarre behavior, " saying Pete "goobers his way through life, consequences be damned, " "operates in secrecy, " "knows how to be offensive, " and is their parents' "greatest threat." He stated that Pete's words will have no value to Mike until Pete "sobers up and shows some interest in correcting his awful behavior." Mike provided the following unflattering description of his brother:

. . . his heart is not in the right place. . . . The man is evil, he is vicious, he is destructive, he is a coward, and he is cruel. Dealing with him on any level is tedious and nauseating. It has become a blood sport of loud-mouthed screaming and distortions, his cutting me off in mid-sentence so he can resume spewing his wisdom and then violence. . . . I now suspect a hidden agenda . . . .

         Mike also explained that comments by Pete of an "insulting and painful nature" are a "source of joy for Pete." Mike called Pete an idiot and claims that Pete will not research solutions to problems regarding their parents because that would not "support his venom" that Mike and his wife are not caring for Bud and Betty. He asserted that "Pete is portraying himself to be a self-sacrificial martyr . . . ." Mike said he does not trust Pete's judgment and is unclear about his motives. In commenting on Pete's intent to find a mate, Mike opined that, in exchange for a beautiful home, "what chick wouldn't want . . . . a husband who will provide her with a unique relationship in which she can be punched, slapped, screamed at and berated." He explained that "[s]he would now have someone willing to tell her what her opinions are, make her feel stupid, inferior and worthless in every way and like any other piece of simple chattel or personal property of [his]." He proclaimed that no one likes to be treated like Pete treats people, especially someone who has "more attractive options, including suicide."

         Mike asserted that Pete makes "petty and pathetic misrepresentations of the words of others" and "[g]arbage from Pete can come at a fast and furious rate . . . ." Mike described Pete's treatment of their brother Mark in evicting him from their parents' home. He said Pete acted like a coward, using slash and burn tactics with no notice or opportunity to mitigate, and Mark was forced to retrieve his possessions on Pete's time frame. Referencing a burglary of their parents' home, Mike told his siblings, "[t]hat worthless, low life, contemptible piece of shit accused [my son] of stealing heirlooms from his own family!" Mike asserted that the accusation was intended to "deflect attention away from Pete's own incompetence" and "[t]here is no level too low for Pete." Mike asserted that "Pete's nonsense" convolutes matters and increases the family's difficulty. Mike opined that Pete is unable "to connect the dots and reach a rational conclusion." Mike also wrote about his greatest concern, the failure to execute a will or establish a trust, saying that Pete was "procrastinating into oblivion."

         Mike explained to his readers that his letter contains his views about Pete and his behavior. He used numerous derogatory adjectives to describe his subjective beliefs and opinions about Pete. Further, he guessed at how Pete might treat a "chick." We conclude as a matter of law that these are statements of opinion, not fact. See Main, 348 S.W.3d at 389. These comments, although disparaging, are not actionable. See Vice, 318 S.W.3d at 18. Regarding Mike's references to the eviction of Mark and the burglary of their parents' home, Pete presented no evidence raising a fact issue on whether these were false statements. See Neely, 418 S.W.3d at 62; Tamez, 206 S.W.3d at 582. Finally, Mike's assertion that Pete failed to produce a will or trust, an example of Pete's propensity to procrastinate, is shown by other evidence to be true. Pete's email of December 6 indicates that he had not yet hired an attorney to draft wills and the trust. Pete also included a copy of the Healey Family Irrevocable Trust in his summary judgment evidence, which is dated January 25, 2013, more than two weeks after Mike's email. Procrastination may not be seen as a positive attribute, but this statement is not likely to injure Pete's reputation or impugn his character. See In re Jennings, 203 S.W.3d 32, 36 (Tex. App.-San Antonio 2006, original proceeding).

         We conclude that most of the content of the emails is not defamatory. See John Moore Servs., Inc., 441 S.W.3d at 28. As for the remaining comments, Pete failed to present evidence that raises a fact question on whether the statements are false. See Neely, 418 S.W.3d at 62. The trial court did not err in granting Mike and Liza's motion for partial summary judgment to dispose of Pete's defamation claim against them. See Merriman, 407 S.W.3d at 248. We overrule Pete's first issue.

         Breach of Fiduciary Duty by Mike and Liza

         In his issues two through four, Pete raises questions regarding his claim of breach of fiduciary duty by Mike and Liza as trustees.

         Evidence of Breach by Trustees

         Mike denied that he and Liza acted for their own benefit or engaged in self-dealing. He testified that the siblings all agreed that the trust funds were to be used for Bud's benefit. He understood that the trust proceeds were to be used to care for his parents until their death. He stated that was what his parents wanted. He stated that the money placed in the trust was used for Bud's care. He denied spending the trust funds for his and Liza's benefit. He explained that there are checks written to him and his wife as reimbursement for out of pocket expenses to his parents. Although the trust provides that the trustee shall distribute to descendants, Mike testified that there should be no distributions to anyone until Bud dies. Mike testified that the trust is empty.

         In the latter part of 2012, Pete hired an attorney, Chuck Bauman, to draft the trust instrument. Bauman testified that he did not recall Pete saying that Bud and Betty's assets were to be used for their purposes. He explained that, to preserve assets from long term care costs in compliance with Medicaid rules, the trust must be irrevocable; there can be no direct benefit to the parents at that point. The trust has to be set up as a completed gift to the children. Therefore, distributions to the grantors, Bud and Betty, would not be in accordance with the trust. Bauman testified that any named beneficiary should be entitled to an accounting.

         Liza denied that she or Mike ever acted for their own benefit as POA. She and Mike have demanded repayment of funds Pete deposited in a Southside Bank account. She testified that they wanted their parents' assets protected for their benefit. She stated that she did not pay any attention to the terms of the trust regarding whether funds could be used for Bud and Betty. She explained that the understanding from the beginning was that the money is to be used for her parents' benefit, and the trust funds would be distributed according to their wishes. She further explained that her parents wanted privacy and did not want the beneficiaries to have an accounting. She claimed that she did not need to provide an accounting to Pete when he owed money to her parents. Liza testified that Paul received an accounting. She denied that she or Mike used trust funds for their own benefit. She explained that expenditures from the trust account paid for Bud's living expenses, health care, and attorney's fees. She denied paying her personal attorney's fees out of the trust funds. She denied writing checks to herself or her husband from the trust account. She claims that all her actions, as well as Mike's actions, have been done in good faith. Liza stated that there has been no income to the trust and no distributions from the trust. She clarified that approximately $225, 000 has been deposited or contributed to the trust and about $700 remains. About $100, 000 of that paid for Bud's attorney's fees.

         Bud testified that he and all family members involved thought that the trust would allow them to use trust funds for him and Betty.

         Pete testified that Liza and Mike absconded with funds. He testified that the trust was not set up to fund Bud's normal living expenses and legal fees. It was set up to fund their medical needs if those needs become greater than current income. When asked if there were any specific instances when Mike and Liza did one thing when they should have done something else, Pete responded yes, quite a few. He explained that the trust has been depleted so as a beneficiary he suffered monetary loss. He also recited the depletion of the trust as evidence that Mike received monetary benefit for his actions as trustee. Pete testified that trust bank statements show disbursements to Liza in the amount of $5, 950.34 and disbursements to Mike in the amount of $9, 638.38. Pete asserted that his parents should have received a refund on their house insurance but that was not reflected in the records. Additionally, he found no documentation regarding proceeds from an insurance claim for water damage. Further, the $1, 000 refund from Bauman was not placed in the trust.

         Paul testified that the entire family wanted Bud and Betty's assets placed in a trust to be used for their benefit. He stated that he was initially ignored when he asked to see the trust instrument, but he finally saw a copy in the fall of 2013.

         Section G of the trust provides that each trustee shall be held harmless from liability for any action taken or for the failure to take any action, if done in good faith and without gross negligence.

          Trial Amendment and Jury Questions on Trustees' Breach of Fiduciary Duty

         In his third issue, Pete contends the trial court erred in submitting Questions 23 and 25 as worded and in failing to submit his requested questions on Mike and Liza's breach of fiduciary duty as trustees. He argues that the questions erroneously conditioned a finding of breach on benefit to Mike or Liza. In his fourth issue, Pete contends the trial court erred in denying his second motion for ...


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