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Guillory v. Dietrich

Court of Appeals of Texas, Fifth District, Dallas

January 6, 2020


          On Appeal from the County Court at Law No. 2 Kaufman County, Texas Trial Court Cause No. 94304-CC2

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III



         Appellants 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.

         Appellants 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.

         Accordingly 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.

         I. Background

         A. Facts

         We draw these facts from the trial evidence and uncontradicted factual statements in the parties' briefs. See Tex. R. App. P. 38.1(g).

         The central figure in this dispute is Dorothy Dietrich (Dottie), who died in 2015. Appellant Carletta Guillory is Dottie's estate's executor.

         When 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.

         Dottie had a stroke in 2008. There was evidence that the stroke left her partially disabled physically but still competent to manage her own affairs.

         The 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.

         Dietrich 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.

         B. Procedural History

         Guillory sued Dietrich for breaching his fiduciary duty to Dottie. Redd and Charvoz later joined the suit as additional plaintiffs.

         Appellants' 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 beneficiaries' rights;
• 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.

         Dietrich 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 attorney's fees.

         The case was tried to the bench.

         The 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.

         Appellants 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.

         The 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.

         The 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 appeal.

         Appellants filed another new trial motion, which was overruled by operation of law. They then timely appealed.

         II. Issues Presented

         Appellants 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.[1]
6. The trial court erred by adopting verbatim Dietrich's proposed findings of fact and conclusions of law.

         III. Analysis

         We first address a threshold matter that appellants raise before they argue the issues summarized above. Then we address appellants' issues.

         A. Should we disregard the trial court's "evidentiary" fact findings as inappropriate and immaterial?

         Yes, 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.

         Appellants 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.

         Dietrich does not respond to appellants' complaint except to call it "unmeritorious."

         We agree with appellants.

         The 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

         Many 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.

         Moreover, 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 sanctions.

         B. Issue Two: Do the actual damages awards reflect reversible error?

         Yes, 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.

         1. What are the actual damages awards for?

         We first explain the judgment and the findings to give context for our analysis.

         In 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.

         The modified final judgment awards Dietrich the following actual damages:

• "$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 from USAA."
• "$26, 429.00 for the conversion and unjust enrichment of the reimbursement proceeds from Genworth ...

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