Court of Appeals of Texas, Fifth District, Dallas
CARLETTA GUILLORY, SHARON REDD, AND ROBERT MAURICE CHARVOZ, JR., Appellants
WILLIAM E. DIETRICH, Appellee
Appeal from the County Court at Law No. 2 Kaufman County,
Texas Trial Court Cause No. 94304-CC2
Justices Whitehill, Partida-Kipness, and Pedersen, III
and appellee sued each other on several claims regarding the
late Dorothy Dietrich's property and estate. After a
bench trial, the trial court ordered appellants to take
nothing on their claims and awarded appellee William E.
Dietrich actual damages, exemplary damages, attorney's
fees, and declaratory relief on his counterclaims.
raise numerous issues. Our main holdings are that: (i) three
of the five conversion actual damages awards are erroneous
because there is no evidence that Dietrich demanded the
property in question and no finding that appellants
wrongfully acquired the property; (ii) the trial court erred
by awarding Dietrich more unjust enrichment damages than he
pled for; (iii) appellants have not shown that the trial
court erred by making them jointly and severally liable based
on civil conspiracy; (iv) appellants' complaint that the
trial court erroneously based its exemplary damages awards on
an unpled gross negligence theory fails because the exemplary
damages are not predicated on a gross negligence finding; and
(v) the attorney's fees award is erroneous because
Dietrich did not segregate his fees between recoverable fees
and unrecoverable fees.
we reverse the judgment for actual damages and render
judgment in a lower amount, reverse the attorney's fee
award and the judgment interest award, affirm the rest of the
judgment, and remand for further proceedings.
these facts from the trial evidence and uncontradicted
factual statements in the parties' briefs. See
Tex. R. App. P. 38.1(g).
central figure in this dispute is Dorothy Dietrich (Dottie),
who died in 2015. Appellant Carletta Guillory is Dottie's
Dottie died, she was married to appellee William E. Dietrich.
When she married Dietrich in 1980, Dottie had four children
from prior relationships: appellants Sharon Redd and Robert
Charvoz, a son named James who predeceased Dottie, and a
daughter named Mary Brooks who is not involved in this case.
Dietrich has no children.
had a stroke in 2008. There was evidence that the stroke left
her partially disabled physically but still competent to
manage her own affairs.
parties' disputes focus on events after Dottie's
stroke and after her death. Appellants pled that (i) after
Dottie's stroke Dietrich improperly took assets belonging
to her and (ii) after she died Dietrich improperly withheld
Dottie's personal property from her estate.
pled that after Dottie died appellants worked together to
convert property belonging to him. He also pled that
Dottie's estate should reimburse him for about $24, 000
in federal income taxes he paid on Dottie's behalf.
sued Dietrich for breaching his fiduciary duty to Dottie.
Redd and Charvoz later joined the suit as additional
live pleading at trial was their fourth amended petition.
That pleading repeated the fiduciary breach claim from the
original petition. It also asserted several other claims
against Dietrich, including claims for:
• a declaratory judgment (i) that Dietrich attempted to
circumvent contractual wills he and Dottie executed and (ii)
determining which property is separate property and which
property is community property;
• wrongful interference with Dottie's
• an accounting and turnover order regarding
Dottie's jewelry and other personal property;
• a constructive trust over money Dietrich improperly
took from Dottie; and
• attorney's fees and exemplary damages.
counterclaimed against appellants. His live counterclaim
alleged that appellants converted various funds and real
property properly belonging to him. He also alleged unjust
enrichment, fraud on the community, and conspiracy. Finally,
he also sought several declaratory judgments and
case was tried to the bench.
trial judge eventually signed a final judgment in
Dietrich's favor on both appellants' claims and his
counterclaims. He also signed findings of fact and
conclusions of law.
filed (i) a new trial motion, (ii) a separate motion to
modify, correct, or reform the judgment, and (iii) a request
for additional or amended findings and conclusions.
Dietrich's response agreed that the judgment should be
modified in certain limited respects.
trial judge then signed a modified final judgment in
Dietrich's favor. He also signed a new set of findings of
fact and conclusions of law. The new findings and conclusions
did not vacate or otherwise reference the previous findings
and conclusions. Comparison reveals that the new findings and
conclusions repeated verbatim most of the original findings
and conclusions, modified a few of the previous findings and
conclusions, and added some new findings. Thus, this opinion
refers only to the new findings and conclusions.
modified final judgment made appellants jointly and severally
liable to Dietrich for (i) five actual damages categories
totaling about $75, 000, (ii) past attorney's fees of
$200, 000, and (iii) conditional appellate attorney's
fees of up to $15, 000. It also awarded Dietrich exemplary
damages totaling $16, 666.68 against Guillory and $16, 666.66
against each of Redd and Charvoz. The modified final judgment
also contained several declaratory judgments not at issue on
filed another new trial motion, which was overruled by
operation of law. They then timely appealed.
present six issues, which we summarize as follows:
1. The trial court erred by making appellants jointly and
severally liable for Dietrich's actual damages.
2. The five actual damages awards are not supported by the
pleadings, the findings, or legally sufficient evidence.
3. The exemplary damages awards are not supported by proper
fact findings or legally sufficient evidence. Also, a fact
finding of gross negligence is not supported by pleadings.
4. The attorney's fee awards are duplicative. Also,
Dietrich did not segregate his fees, and the fact findings
invoke a fee shifting statute that is not supported by
pleadings, evidence, or findings.
5. The trial court erred to the extent it overruled
appellants' Rule 307 exceptions to the original and
modified final judgments.
6. The trial court erred by adopting verbatim Dietrich's
proposed findings of fact and conclusions of law.
first address a threshold matter that appellants raise before
they argue the issues summarized above. Then we address
Should we disregard the trial court's
"evidentiary" fact findings as inappropriate and
because the vast majority of the fact findings concern
evidentiary details and unduly complicate appellants'
task and our ability to resolve this case. But these matters
alone do not in this case warrant reversal.
argue that we should disregard most of the trial court's
fact findings because they are inappropriate or immaterial.
They contend that fact findings should address only matters
forming the basis for the judgment, just as jury charges
should submit only fact questions necessary to form the basis
for the judgment. Here, the trial judge made 206 findings of
fact, plus roughly nine pages of conclusions of law that
include numbered and unnumbered paragraphs, citations to
cases and statutes, and statements that appear to be
additional fact findings.
does not respond to appellants' complaint except to call
agree with appellants.
purpose of requesting findings of fact and conclusions of law
is to narrow the judgment's bases and thereby reduce the
number of contentions the appellant must make on appeal.
Rossmann v. Bishop Colo. Retail Plaza, L.P., 455
S.W.3d 797, 808 (Tex. App.-Dallas 2015, pet. denied). With
this in mind, we agree with our sister courts that "a
trial court should not make findings on every disputed fact,
but only those having some legal significance to an ultimate
issue in the case." Watts v. Lawson, No.
07-03-0485-CV, 2005 WL 1241122, at *3 (Tex. App.- Amarillo
May 25, 2005, no pet.) (mem. op.); accord Stuckey
Diamonds, Inc. v. Harris Cty. Appraisal Dist., 93 S.W.3d
212, 213 (Tex. App.-Houston [14th Dist.] 2002, no pet.).
Indeed, the problem of excessive fact findings that make
judgments unnecessarily difficult for litigants to appeal and
appellate courts to review has gotten some attention, if not
resolution. See Minutes of Oct. 20, 2006 Supreme
Court Advisory Committee meeting at 14877-14918 (available at
fact findings in this case have no obvious relevance to any
ultimate issue, such as finding 30 ("[Dietrich] was
employed by Procter & Gamble for over 40 years.").
These additional findings concern evidentiary matters instead
of controlling issues. As such they are unnecessary. See,
e.g., Knight Renovations, LLC v. Thomas, 525
S.W.3d 446, 453-54 (Tex. App.-Tyler 2017, no pet.). We
disregard such findings in this opinion.
the unnecessary findings made our task in resolving this
appeal, and presumably appellants' task in briefing it,
more difficult. A trial court should make findings as to only
disputed facts significant to the case's ultimate issues.
Findings that a jury would be asked to make in a case may be
an appropriate guide. Although we impose no consequences for
the excessive findings in this case, excessive findings that
obscure rather than clarify the judgment's basis may lead
to consequences such as remand for proper findings or
Issue Two: Do the actual damages awards reflect reversible
three of the five conversion awards are erroneous because as
to them there is no evidence concerning the
"demand" element on which the trial court based its
judgment nor any finding that would excuse the demand
element. And the unjust enrichment awards must be reversed to
the extent they exceed $24, 280 because that is the amount
Dietrich pled for regarding unjust enrichment damages.
What are the actual damages awards for?
first explain the judgment and the findings to give context
for our analysis.
summary, the trial court found that appellants (i) converted
items worth $75, 169.98 and (ii) were unjustly enriched in
the amount of $75, 129.98. Those amounts represent
compensation for the same injuries, except for $40 that were
awarded for conversion but not for unjust enrichment.
Importantly, the fact findings explaining the damages awards
are different from the judgment's recitations.
modified final judgment awards Dietrich the following actual
• "$17, 120.98 for the conversion of the
USAA Subscriber Savings Account."
• "$7, 300.00 for the conversion and
unjust enrichment of the claim for missing jewelry proceeds
• "$26, 429.00 for the conversion and
unjust enrichment of the reimbursement proceeds from Genworth