Full opinion text
Justice HECHT, dissenting from the denial of the petition for review. The lower courts in this case awarded mental anguish damages and punitive damages to one spouse for the other’s fraud in the division of their marital estate, and awarded mental anguish damages against an attorney for breach of her fiduciary duty to her client. These awards are not permitted under two of this Court’s opinions that have issued while this petition for review has been pending. In Schlueter v. Schlueter, the Court held that “a separate and independent tort action for actual fraud and accompanying exemplary damages against one’s spouse do not exist in the context of a deprivation of community assets”. In Douglas v. Delp, we held that mental anguish damages cannot be recovered for legal malpractice if plaintiffs loss is entirely economic. If the holdings of Schlueter and Douglas were applied to the same issues in this case, the petition for review would have to be granted, the court of appeals’ judgment reversed, and the case remanded to the district court for further proceedings. But the Court simply refuses to follow Schlueter and Douglas in this case that has been pending while those cases were being decided. The Court would not tolerate a lower court’s refusal to follow our decisions, nor should it, yet the Court will not follow its own decisions in contemporaneous appeals involving the same issues. It is awfully hard to insist on others’ adherence to the rule of law when one’s own commitment to the rule is, shall we say, intermittent. I would grant the petition for review in this case because I cannot see that Schlueter and Douglas leave any principled alternative. Accordingly, I respectfully dissent. Mrs. Schlueter complained in her divorce proceeding that her husband had diverted to his father $12,565 in cash and an emu business worth $10,000 to avoid having these assets included in the couple’s $122,600 community estate to be divided by the court. Based on the jury’s findings that Mr. Schlueter had defrauded the community estate and conspired with his father to harm Mrs. Schlueter, the district court rendered judgment that the community recover $12,850 from Mr. Schlueter and his father, jointly and severally, and that Mrs. Schlueter recover $30,-000 in punitive damages and $18,500 in attorney fees from her husband, and $15,-000 punitive damages from his father. The court of appeals affirmed. This Court reversed, holding that one spouse’s fraud on the community estate could justify an unequal division of the estate but that “there is no independent tort cause of action for wrongful disposition by a spouse of community assets”. The Court added: while we hold that a separate and independent tort action for actual fraud and accompanying exemplary damages against one’s spouse do not exist in the context of a deprivation of community assets, if the wronged spouse can prove the heightened culpability of actual fraud, the trial court may consider it in the property division. The petition for review in the present case was filed almost four months before Schlueter was decided, and the Court was well aware of the similarity of the issues in the two cases. I specifically mentioned this case in my dissent to show that Schlueter was “not an isolated case.” The circumstances of this case, as depicted in the evidence supporting the jury’s verdict, present an even stronger argument for recovery that those in Schlueter. Mr. Vickery, an attorney, misrepresented to his wife that they needed to divorce to protect their community estate from liability to a former client suing him for malpractice. When Mrs. Vickery balked, her husband enlisted a friend from law school days, Dianne Richards, to initiate divorce proceedings on behalf of Mrs. Vickery but without her consent. Richards also filed an answer and cross-petition for Mr. Vick-ery. A few weeks later the plaintiff in the malpractice ease offered to settle with Mr. Vickery within the limits of his insurance coverage, but he did not disclose that offer to his wife. Instead, he insisted on proceeding with the divorce on the pretext of protecting the community estate and preserving his relationship with Mrs. Vickery and their nine-year-old daughter. Reluctantly acquiescing, Mrs. Vickery agreed to a divorce decree that gave her $1.1 million (about 7.5%) of the $14.6 million community estate. The balance of the estate was either given to Mr. Vickery or left undivided (the decree is vague). The couple’s principal residence, a ranch where Mrs. Vickery and her daughter were living, was Mr. Vickery’s separate property, although the community had a reimbursement claim that was not addressed in the decree. The decree thus did little to accomplish Mr. Vickery’s stated purpose in the divorce, to remove community property from the reach of a potential judgment creditor, although Mrs. Vickery may not have realized this at the time. Within six months, Mr. Vickery demanded that Mrs. Vickery agree to a nunc pro tunc decree that included a metes and bounds property description for the residence omitted from the original decree. Mrs. Vickery acceded. The next day Mr. Vickery retained a lawyer to have his former wife evicted from the residence. Shortly after Mrs. Vickery was served with process, Mr. Vickery married one of her best friends. Realizing at last the depth of her former husband’s deception, Mrs. Vickery attempted to negotiate a redivision of their community estate, but without success. Mrs. Vickery then filed the present action for a bill of review setting aside the divorce decree, a different division of the community estate, and actual and punitive damages from Mr. Vickery and attorney Richards. The jury found Mr. Vickery liable for fraud and breach of fiduciary duty and assessed Mrs. Vickery’s damages at $6.7 million for loss of marital property and $1.3 million mental anguish, plus $1 million punitive damages. The jury also found that Richards’ breach of fiduciary duty caused Mrs. Vickery a $100,000 loss of marital property and $350,000 in mental anguish damages. The district court rendered judgment: setting aside the prior divorce decree as having been obtained through fraud extrinsic to the proceeding; dividing the $14.6 million community estate $8.5 million (58%) to Mrs. Vickery and $6.1 million (42%) to Mr. Vickery; awarding Mrs. Vickery $1.3 million mental anguish damages, $1.5 million prejudgment interest, and $1 million punitive damages against Mr. Vickery; and awarding Mrs. Vickery $350,000 in unspecified damages against Richards. Mrs. Vickery elected to receive the larger share of the estate awarded by the court rather than the $6.7 million for loss of marital property found by the jury. The court of appeals affirmed in an unpublished opinion, a copy of which is attached as Appendix I. Justice Andell dissented from the denial of rehearing en banc, explaining that he would have held that while Mr. Vickery’s conduct should have been considered in dividing the community estate, Mrs. Vickery had no independent tort action against her former husband and thus was not entitled to actual or punitive damages or prejudgment interest. Justice Andell would have remanded the case to the district court to reconsider the community division. After this Court’s decision in Schlueter issued, Mrs. Vickery attempted to distinguish that case from hers, arguing that Schlueter involved “mere ‘fraud on the community”’ while the present case involves “actual and intentional fraud.” The argument cannot survive even a cursory reading of Schlueter. Mrs. Schlueter vigorously contended that “allowing a separate tort cause of action for actual fraud is necessary so that exemplary damages may be awarded for the intentional acts of the wrongdoer spouse.” The Court expressly rejected this contention. Mrs. Vickery argues that her former husband’s fraud is “particularly repugnant” because he “not only defrauded his spouse but he also tried to hoodwink the courts.” The evidence favorable to the verdict indicates that Mrs. Vickery is correct, but Mr. Schlueter’s fraud also involved both his spouse and the divorce court. Mrs. Vickery argues that her former husband did not merely deplete community assets, as Mr. Schlueter did by the transfers to his father, but directed his deception at her personally. I cannot see how Mr. Schlueter’s deception was any less personal or actionable because he involved his father than was Mr. Vickery’s. Having dissented in Schlueter, I am not anxious to see its holding extended, but Mrs. Vickery has not distinguished Schlueter, and I think she cannot do so. In my dissent in Schlueter I argued that the present case, then pending, presented compelling reasons to allow one spouse to recover against another for fraud. The Court was unmoved. While I remain in doubt that Schlueter was correctly decided, there is no doubt that it is the law. The Court cannot simply pick and choose the cases in which the rule it has announced will apply. Applying Schlueter would require that the actual and punitive damages awarded Mrs. Vickery against her former husband be reversed and the ease remanded to the district court to reconsider what division of the community is just and right. The district court may consider Mr. Vickery’s “dishonesty of purpose or intent to deceive” and “the heightened culpability of actual fraud” as found by the jury. As I understand Schlueter, the court may not simply divide the community estate to award Mrs. Vickery damages she cannot otherwise recover, but it also need not measure her share by the damages she has suffered. The court must consider all relevant factors in dividing the community. The Court’s recent decision in Douglas v. Debp requires that Mrs. Vickery’s award of mental anguish damages against attorney Richards be reversed. In Douglas we held that a plaintiff cannot recover mental anguish damages resulting from economic loss due to legal malpractice. The mental anguish Mrs. Vickery suffered as a result of attorney Richards’ breach of fiduciary duty was entirely attributable to the economic loss of a proper share of the community. Douglas left open the recovery of mental anguish damages “when additional or other kinds of loss are claimed or when heightened culpability is alleged”, but this case does not fall into either category. Mrs. Vickery’s only claim of loss was an economic interest in the community; custody of her daughter, for example, was not threatened by Richards’ conduct. Nor did Mrs. Vickery seek a finding that Richards acted maliciously or a finding of punitive damages against Richards. In this way, Mrs. Vickery’s claim against Richards is no different than the ordinary malpractice claim brought by Mrs. Delp in Douglas. If the present case were pending in the court of appeals, the court would follow Schbmter and Douglas, the actual damages awarded Mrs. Vickery would be reversed, and the case would be remanded for the district court to reconsider a just and right division of the community. The result should be no different merely because the case is pending in a Court empowered— and regrettably, willing — to ignore its own decisions. APPENDIX I In The Court of Appeals For The First District of Texas NO. 01-94-01004-CV GLENN VICKERY AND DIANNE RICHARDS, Appellants V. HELEN VICKERY, Appellee On Appeal from the 311th District Court Harris County, Texas Trial Court Cause No. 91-42667 OPINION ON MOTION FOR REHEARING TIM TAFT, Justice. On this day, the Court considered appellants’ and appellee’s motions for rehearing. We grant appellee’s motion, deny appellants’ motions, withdraw our opinion of December 5,1996, and issue this opinion in its stead. Appellants Glenn Vickery (Glenn) and Dianne Richards (Richards) (collectively, the defendants) appeal a jury verdict in favor of appellee Helen Vickery (Helen), Glenn’s ex-wife. Helen filed a bill of review action to set aside the property division in the underlying divorce; she also sued Glenn and Richards, the attorney who represented her in the divorce, for various tort causes of action. Helen claimed that Glenn, a lawyer, fraudulently tricked her into getting an uncontested divorce on the pretext that they would reunite after the threat of a potentially costly malpractice suit had passed, and that Richards breached her fiduciary duty to Helen when she represented Helen in the divorce. We affirm. Uncontroverted Facts Helen and Glenn were married in 1978. Their daughter Jessica was born in 1982. Glenn, a personal injury lawyer, practiced in Baytown, Texas. Helen worked in his office as a legal assistant. The family lived at “Moss Hill,” a ranch in Liberty County that Glenn had purchased before his marriage to Helen. The Vickerys also owned a house in West University Place. In 1991, a former client, June Wright, sued Glenn for malpractice. Glenn had $5 million in malpractice insurance coverage, but Wright sought more than that amount. In the spring of 1991, Glenn began discussing divorce with Helen. Glenn contacted Dianne Richards, a divorce lawyer, in August 1991, and told her to file, in Richards’ words, a “plain vanilla” divorce petition on Helen’s behalf. Richards was an old friend of Glenn and had gone to law school with him. On August 13, 1991, Richards filed a petition for divorce in Helen’s name without ever speaking to Helen about the matter. Although Glenn represented himself pro se in the divorce, Richards prepared Glenn’s original answer and counterclaim, someone in her office signed the pleading in Glenn’s name, and Richards’ office filed the answer and counterclaim on September 20,1991. On November 15,1991, Helen signed the divorce decree. On November 22, 1991, Richards and Glenn appeared before Judge Bill Elliott, who signed the final decree of divorce. Moss Hill had been awarded to Glenn in the divorce decree. In May 1992, Richards called Helen to tell her that the metes and bounds description of the Moss Hill property had been omitted from the divorce decree. Helen signed an agreed nunc pro tunc final decree of divorce that included this description. Judge Elliott signed the nunc pro tunc decree on May 12. The next day, Glenn hired attorney Bur-ta Raborn. A week after the trial court signed the nunc pro tunc decree, Raborn filed on Glenn’s behalf a motion for enforcement that stated that Helen had refused to vacate Moss Hill, asked that she be held in contempt, and asked that a date be set for Helen to vacate the Moss Hill property. Helen was served with the motion for enforcement on June 2, but no hearing was set at that time. Helen retained attorney Robert Newey to negotiate with Glenn and fully settle all matters connected to the divorce. On June 18, 1992, both Glenn and Helen signed a handwritten document that divided previously undivided assets. The document included a provision that it did not apply to undisclosed assets. This document was not filed with the trial court. On June 20, 1992, Glenn married Lucille Powell, a woman who had been, at one time, Helen’s best friend. In June, Helen and Glenn, through their attorneys, continued to negotiate regarding the division of property. Fearing a disproportionate division of undivided assets, Glenn did not want the final order to include language regarding undisclosed assets. On July 2, Helen withdrew from settlement negotiations and later filed this lawsuit. In July, Glenn advanced his motion to enforce the divorce decree. After a hearing on August 5, the trial court ordered Helen to vacate Moss Hill by August 31. Helen pled the following causes of action against Glenn and Richards: fraud, conspiracy, breach of fiduciary duty. Additionally, she sued Glenn for duress and intentional infliction of emotional distress, and sued Richards for negligence, gross negligence, and violation of the DTP A. She also sought a post-divorce division of property. Alternatively, she sought a bill of review to set aside that portion of the divorce decree that divided the community estate. In his answer, Glenn raised the affirmative defenses of accord and satisfaction, novation, estoppel, waiver, laches, and counterclaimed for breach of contract. The case went to the jury on the issues of breach of fiduciary duty (against Glenn and Richards) and fraud (against Glenn). The jury found that: Glenn breached his fiduciary duty to Helen with respect to the division of marital property; Richards breached her fiduciary duty to Helen with respect to the divorce and division of marital property; Glenn committed fraud against Helen with respect to the division of marital property; and the division of the marital property was the result of extrinsic fraud on Glenn’s part, unmixed with any negligence on the part of Helen. The jury awarded Helen $100,000 for loss of marital property and $350,000 for mental anguish from Richards, and $6,700,000 for loss of marital property and $1,300,000 for mental anguish from Glenn. Additionally, the jury awarded Helen $1,000,000 in exemplary damages from Glenn. The trial court granted the bill of review and divided the marital estate. It rendered judgment against Glenn for $1,300,-000 in mental anguish damages, $1,000,000 in exemplary damages, and $1,521,371.39 in prejudgment interest on the $6,700,000 damages awarded for loss of marital property, for a total of $3,821,371.39. The trial court rendered judgment against Richards for $350,000. 1. Summary of Helen’s Version of the Facts Helen testified that in about June 1991, Glenn suggested that a divorce was necessary to protect their assets from potential creditors and assured her they would reunite after the threat of the Wright malpractice case had passed. She was shocked by his proposal and said that she wanted to keep the family together. Over the weeks, Glenn kept insisting on the necessity of the divorce. He told her the divorce would be kept secret to avoid embarrassment to the family. Glenn told Helen he would get an attorney for her and hired Richards. Glenn had Helen open a bank account in Houston and gave her money to deposit in the new account. He then had her write a check to Richards for $1,630. Richards never spoke to Helen about filing the divorce petition. Helen did not know until Glenn told her that Richards filed a divorce petition in her name. Neither Glenn nor Richards told Helen that Glenn filed a counterclaim. On October 28, Glenn again discussed the divorce with Helen, but this time also indicated that he was not happy in the marriage. Helen begged Glenn to keep the family together and proposed counseling. She began to see a therapist. Glenn also met with the doctor. On November 15, Glenn asked Helen to meet him in Houston to look at some houses in West University. After they had looked at several houses, he pulled out the divorce decree and asked her to sign it. Helen began to cry. She reiterated that she did not want the divorce and begged him to keep the family together. Glenn drove around for two hours, telling her to trust him and pressuring her to sign the decree. She finally signed the papers without reading them. As she drove back to Liberty, her mobile phone rang. It was Dianne Richards, calling at Glenn’s behest. This was the first time Richards had spoken to Helen about the divorce. Richards identified herself and said, “This is unethical; I have never spoken with you.” Helen, crying, told Richards she did not want the divorce. Richards replied, “Helen, you have done the right thing. You know you need to protect your assets.... Glenn loves you and Jesse very much. This divorce is only to protect your assets.” Helen did not learn that the trial court signed the divorce decree until Glenn told her. Glenn still maintained that they would reunite after the malpractice threat had passed. Unbeknownst to Helen, however, June Wright had made an offer to settle within Glenn’s malpractice insurance limits on October 10, more than a month before Glenn had Helen sign the divorce decree. Even after the trial court signed the divorce decree on November 22, Glenn told Helen that they would reunite. Helen testified that until she was served with the motion to enforce the divorce decree, she believed they would get back together. 2. Summary of Glenn’s Version of the Facts Glenn was hospitalized during the trial and did not testify live. A videotaped portion of one of his depositions was played to the jury. Glenn stated that he never sought the divorce to protect assets and never mentioned this to Richards as a reason for the divorce. He wanted a divorce because the marriage had deteriorated. Helen chose Richards as her attorney, knew the divorce petition had been filed, read the divorce decree before signing it, and was aware that the divorce petition was going to be presented to the trial court. With respect to their assets, the divorce decree was deliberately kept vague, not to stymie creditors, but for safety reasons; he did not want knowledge of the family’s holdings to “get out and be on the street.” 3. Summary of Richards’s Version of the Facts Richards testified that Glenn asked her to represent Helen in the divorce, and that she filed the petition without first speaking to Helen or obtaining her consent because she knew Helen well enough to do so. Richards had spoken to Helen by telephone frequently over the years when Richards called Glenn’s law office and had met her in person on several occasions. Richards prepared an answer and counter-petition for Glenn, someone in her office signed it for Glenn, and Richards’ office filed it. Richards never told Helen that Glenn filed a counterclaim. Glenn told Richards that he wanted the divorce to protect the marital estate’s assets because of the pending malpractice-suit. He never gave her another reason for the divorce. The description of assets in the divorce decree was therefore kept vague so that creditors would have difficulty tracing the assets. - Richards stated that she spoke to Helen several times about the pending divorce, and Helen never told Richards she did not want the divorce. Points of Error Common to Glenn and Richards 1. Motion to Recuse In Glenn’s point of error one and Richards’ point of error 10, the defendants assert Judge Leonard Hoffman erred in denying their motion to recuse Judge Bill Elliott. In their motion, they alleged that Judge Elliott’s partiality was reasonably in question because of his relationship with Roy Mease, one of Helen’s attorneys. At the hearing, Mease testified that he and Judge Elliott had known each other since 1965 and had been friends since 1983. The Mease and Elliott families had trav-elled together; in July 1991, the two couples went to Europe together. Mease had received a number of ad litem appointments from Judge Elliott, as well as from other judges. The largest ad litem fee he had ever earned was from a case to which he had been appointed by Judge Elliott, a divorce case styled Platt v. Platt. It is the Platt case that provides the basis for the defendants’ complaints about the relationship between Mease and Judge Elliott. Judge Elliott appointed Mease to represent the Platt children. Debra Jo Catlett represented Mr. Platt. Ed Wheeler represented Mrs. Platt. (Wheeler had been Mease’s campaign manager in Mease’s unsuccessful bid to become a district court judge.) A jury awarded custody of the Platt children to Mr. Platt. Judge Elliott granted Mrs. Platt’s motion for new trial. Mr. Platt was again awarded custody after the second trial. Catlett testified at the recusal hearing that, during the first trial, she, Mease, and Wheeler agreed to the amount of attorney’s fees each would receive — Mease would get $18,000, Catlett would get $12,-500, and Wheeler would get $7,000. The lawyers did not, however, agree who would pay those fees. Catlett stated Mease told her that if Mr. Platt did not pay his fee, he would have Judge Elliott render the ad litem fees against Mr. Platt; Mease further threatened that if Platt did not pay, Mease would join the motion for new trial filed by Wheeler and the motion for new trial would be granted, ... he would get temporary orders entered where Mr. Platt would be ordered to deposit the $18,000 into the Court or pay him directly, he would ask for an additional $10,000 for temporary fees for the next trial, he would have the children removed from the custody of Mr. Platt, ... and he would make sure that Mr. Platt’s child support increased. Judge Elliott ordered Mr. Platt to pay Mease’s and Wheeler’s fees. Catlett wrote Mease a check for $18,000 on behalf of Mr. Platt on July 8. About 10 days later, the Meases and the Elliotts took them trip to Europe. According to Catlett, Judge Elliott later granted the motion for new trial filed by Wheeler on behalf of Mrs. Platt. Mease told Catlett Judge Elliott granted the motion because Catlett had not paid Wheeler. After Judge Elliott granted the motion for new trial, Catlett asked Judge Elliott to order Mease to return the $18,000. Judge Elliott refused. On behalf of Platt, Catlett filed a suit against Mease for conversion of the $18,000. Shortly after she served Mease with interrogatories, Judge Elliott recused himself sua sponte from Platt. In their motion for recusal, the defendants implied a connection between the $18,000 check Catlett gave to Mease on July 8, and the tour of Europe taken by the Meases and Elliotts a fortnight later. In their motion they asserted: While ordinarily a judge and an attorney travelling together in Europe, standing alone, would not be improper, in this instance where such travel followed immediately upon the heels of such attor--ney cashing an $18,000 check which had been ordered by the court and then proceeding on such travel raises an appearance of impropriety. On appeal, defendants assert that in Platt, Mease used his friendship with Judge Elliott to his advantage. They also note that “once the fee to Mease was questioned, Judge Elliott saw fit to recuse himself from the Platt matter.... If it was appropriate for Judge Elliott to recuse himself in the Platt matter, it was likewise appropriate, if not mandated, in the Vick-ery case.” The Texas Rules of Civil Procedure provide that a judge shall recuse himself in any proceeding in which “his impartiality might reasonably be questioned.” Tex.R. Civ. P. 18b(2)(a). We review the denial of a motion to recuse for abuse of discretion. Tex.R. Civ. P. 18(a); McElwee v. McElwee, 911 S.W.2d 182, 185 (Tex.App.—Houston [1st Dist.] 1995, writ denied). As Judge Hoffman suggested during the hearing, the comments made by Mease to Catlett could have been mere posturing. Mease testified that, with respect to the trip to Europe, he paid no part of the Elliott’s transportation costs or travel expenses. The record is silent as to why Judge Elliott recused himself from Platt. We cannot say Judge Hoffman abused his discretion when he denied the motion to recuse. We overrule Glenn’s first point of error, and Richards’ tenth point of error. 2. Evidence About the Annuity In her seventh amended petition, Helen sought a partition of undivided assets that were not discussed or divided in the divorce decree. One of these assets was an annuity that paid approximately $35,000 a month. The monthly check was made payable to both Glenn and Helen. In a 1992 deposition, Glenn stated he was claiming the entire annuity for himself. However, in February 1994, he filed a “Clarification and Supplementation of Deposition Testimony,” in which he stated, “I do not have and never have had ownership or control over the annuity itself.” At trial, Glenn’s attorney, Rabom, mentioned the annuity in opening argument and the following exchange occurred: Ms. Raborn: [Helen] has placed herself in the position she finds herself in. And I’m not saying that it is a bad position at all because I think the evidence is going to show that she is going to have half of the annuity for the rest of her life — that is, income of $250,000 for the rest of her life a year [sic]. Mr. Krist [counsel for Helen]: If I may, just for a point of clarification: Is that a judicial admission that Helen is entitled to one-half of the annuity, in open court? Ms. Raborn: Your Honor, we have had a clarification of the deposition on file for months. Mr. Krist: I’m asking you if this is a judicial admission. Ms. Raborn: Absolutely it is. Never been in contest from our standpoint and they know it. After opening argument, the issue of the annuity again came up when the trial court asked the attorneys for a stipulation regarding whether the annuity was an issue in the case. Raborn told the trial court that because of a “misunderstanding in terms of depositions,” Glenn filed a sworn “clarification of the deposition.” She reiterated that Helen was entitled to one-half of the annuity. Krist noted that the “clarification” affidavit contradicted Glenn’s deposition testimony that he was entitled to all of the annuity, and that he intended “to impeach the dickens out of Glenn Vickery with reference to the position that they’re now taking.” During Helen’s direct examination, she testified about the annuity. Her attorney asked her if she remembered Glenn’s deposition testimony regarding the annuity. When Helen stated she did not remember specific testimony, her attorney asked her if looking at the deposition would refresh her recollection. Helen answered that it would, and her attorney gave her the deposition. After asking her a series of questions about the annuity, counsel asked her to read Glenn’s deposition. Both Glenn’s and Richards’ counsel objected that this was an improper use of the deposition. Richards’ counsel further objected that Krist and Raborn entered into a stipulation regarding the annuity, upon which Richards was entitled to rely. The trial court overruled the objection, and Helen continued to read portions of Glenn’s deposition. The trial court refused to allow Glenn’s supplement to his deposition testimony to be admitted as evidence. Later in the trial, Helen’s counsel again read the same portions of Glenn’s deposition testimony into the record. Defendants’ counsel did not object and were allowed to read additional portions of the deposition under the rule of optional completeness. In Glenn’s point of error 2(B), he asserts the trial court erred in allowing Helen to read Glenn’s deposition. In Glenn’s point of error 2(C) and in Richards’ point of error 4(A) and 4(C), the defendants assert the trial court erred in not admitting Glenn’s affidavit supplementing his deposition testimony. In point of error 4(B), Richards asserts the trial court erred in not enforcing the stipulations made during opening argument by counsel for Glenn and Helen regarding the annuity. A. Helen’s use of Glenn’s deposition Glenn asserts that reading his deposition testimony, “not as if he were ‘present and testifying,’ but rather in the midst of Helen’s testimony, was erroneous.” He also asserts there is no authority to support Helen’s reading Glenn’s deposition into the record as a method of refreshing her recollection. We agree with Helen that Glenn has not demonstrated harm from any alleged error. Glenn does not explain how (or even argue that) the reading of Glenn’s deposition testimony by Helen probably caused the rendition of an improper judgment. See Tex.R.App. P. 44.1(a)(1). After Helen testified, the same deposition excerpts were later read into the record without objection from either defendant. Even assuming the trial court erred in allowing Helen to read from Glenn’s deposition, the error was harmless. We overrule Glenn’s point of error 2(B). B. Glenn’s supplementation of his deposition Glenn argued to the trial court that his affidavit supplementing his deposition had been filed pursuant to Tex.R. Civ. P. 166b(6)(a), which provides: A party is under a duty to reasonably supplement his response [to a discovery request] if he obtains information upon the basis of which: (1) he knows that the response was incorrect or incomplete when made; (2) he knows that the response though correct and complete when made is no longer true and complete and the circumstances are such that failure to amend the answer is in substance misleading[.] Helen, however, argued to the trial court the supplementation was an improper attempt to correct a deposition. The trial court agreed with Helen, stating Glenn had not complied with Tex.R. Crv. P. 205, the rule governing how changes to deposition testimony are to be made. In point of error 2(c), Glenn asserts his affidavit was not a correction to his deposition, but was “clearly supplemental,” and was necessary because Helen and her counsel had misinterpreted his deposition statements regarding the annuity, and that “in an attempt to clarify this stance, a more complete statement was provided....” We agree with Helen that rule 166b(6)(a) is inapplicable. Glenn does not argue his deposition statements were incorrect or incomplete when made, or the statements were correct and complete when made, but were no longer true and complete. He asserts his statements had been misinterpreted, and he needed to clarify — not correct or complete — them. Glenn also asserts his affidavit was admissible under the rule of optional completeness. That rule provides in part: When a writing or recorded statement or part thereof is introduced by a party, an adverse party may at that time introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. Tex.R. Civ. Evid. 106. We are not convinced that rule 106 applies. Under the rule of optional completeness, if one party introduces part of a statement or document, the opposing party may contemporaneously introduce as much of the balance as is necessary to explain the first part. Jones v. Colley, 820 S.W.2d 863, 866 (Tex.App. — Texarkana 1991, writ denied). The rule is based on two considerations: (1) the danger that material may be made misleading by being taken out of context, and (2) the inadequacy of delayed repair. Id. In his deposition, Glenn stated that under the terms of the.divorce decree, the annuity had been awarded to him as a right or privilege arising out of the operation of his business. He also affirmatively answered the question, “[Y]ou’re claiming the entire annuity for yourself?” In his affidavit, executed more than a year after the deposition, Glenn stated that he would control and manage the annuity checks until Helen moved from the ranch and then [a]t that time, we would make arrangements to have separate [annuity] checks issued to each of us individually.... I do not have and have never had ownership or control over the annuity itself. The affidavit is not a part of the deposition. There is no argument that the deposition excerpts were taken out of context and are therefore misleading. Glenn sought to “clarify” his deposition testimony by contradicting it. Rule 106 is inapplicable. Moreover, Glenn’s videotaped deposition, played to the jury during his case-in-chief, contained a statement somewhat similar to the statement in the affidavit; he testified that he and Helen had reached an agreement by which he would give her one-half the annuity “after the June Wright case seemed to be going, fading away.” Although this statement does not contain the express disavowal that he did not own or control the annuity, it reflects an intention to share the annuity with Helen. We conclude Glenn was not harmed by the exclusion of the affidavit. Richards asserts in point of error 4(C) that the trial court erred in not permitting Glenn to supplement his deposition with the affidavit because Glenn had a duty to supplement under rule 166b. She provides no argument or authority for this proposition. Richards has waived point of error 4(C). See Tex.R.App. P. 38.1(h). Moreover, we have already held that rule 166b does not apply. In point of error 4(A), Richards asserts the trial court erred because the ownership of the annuity was as a matter of law partitioned prior to the divorce pursuant to section 3.52 of the Texas Family Code (Vernon 1993). Richards does not support this assertion with explanation, argument, or authority. She has waived point of error 4(A). See Tex.R.App. P. 38.1(h). In point of error 4(B), Richards asserts the trial court erred by not enforcing the stipulation made by Helen during Glenn’s opening argument. She has provided neither argument nor authority to support this assertion. Point of error 4(B) is waived. See Tex.R.App. P. 38.1(h). We overrule Glenn’s point of error 2(C) and Richards’ point of error 4(A), (B), and (C). 3. The Jury Charge In Glenn’s point of error four, he asserts “[t]he trial court erred in failing to include in the charge to the jury any and all questions tendered by Glenn, including his affirmative defenses.” He specifically argues the trial court apparently denied his proposed questions on the basis of Helen’s trial amendment, in which she asserted Glenn was judicially estopped from asserting any rights based on the June 18 agreement. In a portion of Richards’ point of error seven, she asserts the trial court erred in refusing her tendered jury questions on the issues of ratification and estoppel. Richards adopts Glenn’s arguments and authorities regarding these issues. To determine whether an alleged error in the jury charge is reversible, we must consider the pleadings, the evidence presented at trial, and the charge in its entirety. Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass’n, 710 S.W.2d 551, 555 (Tex.1986); Merckling v. Curtis, 911 S.W.2d 759, 767 (Tex.App.—Houston [1st Dist.] 1995, writ denied). Error in the charge is reversible only if harmful — in other words, if it probably caused the rendition of an improper judgment. Tex. R.App. P. 44.1(a)(1); see Island Recreational Dev. Corp., 710 S.W.2d at 555; Merckling, 911 S.W.2d at 767. A. Glenn’s tendered and refused questions Glenn’s tendered questions asked if Helen: breached any of the three agreements (question A); was estopped from claiming that any of the three agreements was enforceable (question C); was guilty of laches with respect to any of the three agreements (question D); waived her right to disaffirm any of the three agreements (question E); reached an accord and satisfaction with Glenn by signing the June 18 agreement (question F); effected a novation by signing the May 1992 nunc pro tunc decree or the June 18 agreement (question G); or ratified any of the three agreements (question H). In response to Helen’s trial amendment, Glenn also tendered questions regarding his counterclaim for breach of contract and his affirmative defenses of estoppel, laches, waiver, novation, and ratification that referred only to the divorce decree and nunc pro tunc decree and contained no reference to the June 18 agreement. Helen asserts that Glenn’s tendered questions were immaterial because “[i]t is the very essence of a bill of review action that a party is entitled to set aside a prior judgment, and is not by any theory es-topped from doing so, if she can prove that the judgment was the result of fraud.” The jury affirmatively answered the question, “Did Glenn Vickery commit fraud against Helen Vickery in the division of the marital property of Helen Vickery and Glenn Vickery?” It also found the division of marital property between Helen and Glenn was the result of extrinsic fraud unmixed with any negligence on Helen’s part. The jury was instructed there are two types of fraud and was required to answer separately for each type. The jury was instructed fraud occurs when: a. a party makes a material misrepresentation, b. the misrepresentation is made with the knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion, e. the misrepresentation is made with the intention that it should be acted on by the other party, and d. the other party acts in reliance on the misrepresentation and thereby suffers injury. The jury was further instructed that fraud also occurs when: a. a party conceals or fails to disclose a material fact within the knowledge of that party, b. the party knows that the other party is ignorant of the fact and does not have an equal opportunity to discover the truth, c. the party intends to induce the other party to take some action by concealing or failing to disclose the fact; and d. the other party suffers injury as a result of acting without knowledge of the undisclosed fact. B.Breach of contract Glenn asserts the trial court erred in refusing his tendered questions regarding breach of contract because Helen’s failure to comply with the three agreements was raised by the pleadings. The jury found Glenn committed fraud against Helen in the division of the couple’s marital property. We read this question to encompass all three agreements. Helen’s fraud claim was based on her assertion that Glenn tricked her into getting a sham divorce as a means to protect their assets from the June Wright malpractice case. A June 10, 1992, letter from Helen’s attorney to Glenn’s attorney reflects Helen still believed the June Wright malpractice case posed a threat to the couple’s assets. However, unbeknownst to Helen, June Wright had offered to settle the case within Glenn’s policy limits in October 1991, and the malpractice case actually settled on June 5, 1992 — two weeks before Helen signed the June 18 agreement — for less than Glenn’s policy limits. Fraud vitiates every transaction tainted by it. Middleman v. Atlantic Mut. Ins. Co., 597 S.W.2d 565, 568 (Tex.Civ.App.— Waco 1980, writ ref d n.r.e.). There is no real assent to any agreement induced by fraud. Id. The jury found Glenn committed fraud. Thus, the three “agreements” were vitiated. Helen could not breach a contract vitiated by fraud. Any error in failing to submit Glenn’s questions regarding breach of contract was harmless. C. Estoppel Glenn asserts the trial court erred in denying submission of his questions and definitions regarding estoppel. He asserts it was error because estoppel was “pleaded and proved by her signing of the original, as well as subsequent decree and contract.” He further asserts that Helen judicially admitted that the November 1991 decree and May 1992 nunc pro tunc decree “existed and were enforceable” and is therefore “estopped from denying their enforceability.” We again note fraud vitiates every transaction tainted by it. The jury found Glenn committed fraud. Helen is not es-topped from claiming the documents she signed are unenforceable. Moreover, we have looked at Glenn’s sole record reference in support of his assertion Helen “stipulated to the existence and effectiveness of both the November 1991 decree and the subsequent May 1992 Nunc Pro Tunc decree,” and find it does not support his contention. D. Laches Laches is an equitable remedy that prevents a plaintiff from asserting a claim because of a lapse of time; the claim is said to be stale. Bluebonnet Sav. Bank, F.S.B. v. Grayridge Apartment Homes, Inc., 907 S.W.2d 904, 912 (Tex.App.— Houston [1st Dist.] 1995, writ denied). The two essential elements of laches are: (1) an unreasonable delay by one having legal or equitable rights in asserting them, and (2) a good faith change of position by another to his detriment because of the delay. Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 80 (Tex.1989). Although a court applying the doctrine of laches is not bound by any statute of limitations, the statute of limitations is one measure of whether a claim has become stale. Bluebonnet Sav. Bank, 907 S.W.2d at 912. Laches does not bar a plaintiffs suit before the statute of limitations has run unless estoppel or extraordinary circumstances are present. Id. Glenn asserts he pled and proved a delay that worked to his disadvantage. He does not explain how he was disadvantaged, however — he refers only to his own pleadings and to the three agreements. Glenn has not established that his defense of laches was raised by the evidence. Moreover, Glenn does not argue extraordinary circumstances exist that would bar Helen’s claim. Any error in refusing Glenn’s questions regarding laches is harmless. E. Waiver Glenn asserts the trial court erred in failing to submit his tendered questions regarding waiver because “waiver, which is the voluntary relinquishment of a known right, was pleaded and proved by Helen’s signing of the two decrees.” As we have noted, there is no real assent to any agreement induced by fraud. The jury found Glenn committed fraud. Any error in the trial court’s failure to submit Glenn’s questions regarding waiver is harmless. F. Accord and satisfaction Glenn asserts the trial court erred in refusing his question regarding whether “an accord and satisfaction was reached between Helen and Glenn by the signing of the % agreement.” He further argues, “Helen certainly had the right to seek a division of property, however, she signed and accepted the benefits of the November 1991 and May 1992 property divisions in the decrees in accord and satisfaction of this right.” The tendered question asked, “Was an accord and satisfaction reached between Helen Vickery and Glenn Vickery by the signing of the 6/18/92 agreement? ” (Emphasis added.) However, his argument on appeal in support of this issue seems to be based on Helen’s signing of the November 1991 decree and the May 1992 nunc pro tunc decree, not the June 18 agreement. To the extent we understand his argument on appeal, it appears Glenn has not supported his assertion that the June 18 agreement constituted an accord and satisfaction with any argument. Glenn has waived any error with respect to this issue. Moreover, we conclude that the jury’s finding of fraud rendered harmless any error in refusing Glenn’s questions on this issue. An accord requires a bargaining evidenced in a new contract, either express or implied, that replaces an old agreement. Bueckner v. Hamel, 886 S.W.2d 868, 372 (Tex.App. — Houston [1st Dist.] 1994, writ denied). In the new contract, the parties mutually agree that one party may give or perform, and the other will accept, something different from what each was expecting from the old contract. Id. The satisfaction is the actual performance of the new agreement. Id. As we have noted, there is no real assent to any agreement induced by fraud. Thus, in fight of the jury’s finding of fraud, there could be no accord because there was no mutual agreement. G. Novation Glenn asserts the trial court erred in refusing his questions regarding whether a novation was effected when Helen signed the May 1992 nunc pro tunc decree or the June 18 agreement. The essential elements of a novation are: (1) a previous, valid obligation; (2) a mutual agreement of the parties to the acceptance of a new contract; (3) the extinguishment of the old contract; and (4) the validity of the new contract. Flanagan v. Martin, 880 S.W.2d 863, 867 (Tex.App.—Waco 1994, writ dism’d w.o.j.); Mandell v. Hamman Oil and Ref. Co., 822 S.W.2d 153, 163 (Tex. App.—Houston [1st Dist.] 1991, writ denied). As we have repeatedly stated, fraud vitiates every transaction tainted by it, and there is no real assent to any agreement induced by fraud. Because the jury found Glenn committed fraud, he cannot establish the first, second, or fourth elements of novation — there was no valid previous obligation, no mutual agreement to the acceptance of a new contract, and no valid new contract. Any error in failing to submit the tendered question regarding novation is harmless. H. Ratification Glenn asserts the trial court erred in refusing his questions regarding whether Helen ratified any or all of the three agreements. He states ratification rests upon a manifestation of assent to confirm one’s prior act or that of another, and ratification was “pleaded and proved ... by Helen’s signing.” We assume Glenn refers to Helen’s signing of the three agreements. Again, there can be no real assent to any agreement induced by fraud; if Helen was induced by fraud to sign the three agreements, she cannot have manifested assent to the documents she signed. Any error in refusing the tendered questions and instructions regarding ratification was harmless. I. Conclusion We overrule Glenn’s point of error four and that portion of Richards’ point of error seven that deals with alleged error in refusing her tendered jury questions. 4. Objections to the Charge In Glenn’s point of error five and Richards’ point of error seven, the appellants assert the trial court erred in overruling numerous objections to the charge. A. Necessity of predicating fraud and fiduciary duty questions on bill of review Glenn asserts that because this was a bill of review proceeding, the questions attacking the underlying judgment had to be predicated upon a finding that Helen was entitled to bill of review relief. He asserts, The manner in which these questions' were presented had the effect of providing Helen a remedy in addition to bill of review and, at the very least, if even proper, should have been predicated upon a finding supporting bill of review relief. Helen could not have brought a bill of review if these actions could have been brought independently. To present these issues independently, without predicate, was error. We understand Glenn’s argument on appeal to be twofold: (1) the complained-of questions should have been predicated upon a finding that Helen was entitled to bill of review relief, and (2) Helen was not entitled to bill of review relief if she was entitled to bring an independent action for breach of fiduciary duty and fraud. Glenn has not pointed to any place in the record where this latter complaint was raised before the trial court. Any argument is therefore waived. Additionally, Glenn has not provided any authority for the proposition that the complained-of questions had to be predicated on a finding that Helen was entitled to bill of review relief. Finally, although the complained-of questions were not predicated on a finding that Helen was entitled to bill of review relief, a bill of review question was submitted to the jury; the jury found that the division of marital property was the result of extrinsic fraud on Glenn’s part, unmixed with any negligence on Helen’s part. Thus, any error would be harmless. See TexR.App. P. 44.1. B. Use of the term “marital property” Both Glenn and Richards complain about the use of the term “marital property” in jury questions one, three, four, five, and six. The general instructions that preceded the charge defined separate and community property. Question number one asked, “Did Glenn Vickery breach his fiduciary duty to Helen Vickery concerning the division of the marital property of Helen Vick-ery and Glenn Vickery?” Question three asked, “Did Dianne Richards breach her fiduciary duty to Helen Vickery while representing Helen Vickery in the divorce and marital property division between Helen Vickery and Glenn Vickery?” Question four asked if Glenn committed fraud against Helen in the division of the couple’s marital property. Question five asked if the division of the couple’s marital property was the result of extrinsic fraud by Glenn, unmixed with any negligence on Helen’s part. Question six, a damage question predicated on the answers to questions one and four, asked what sum of money would compensate Helen for her damages caused by the fraud or breach of fiduciary duty of Glenn “concerning the division of the marital property” of the couple. Question 6A, a damage question identical to question six, related to Richards. The instructions to all these questions defined marital property as “all the community and separate property owned by either or both spouses as of November 22,1991.” Richards and Glenn argue that the trial court erred in using the phrase “marital property” because it allowed the jury to take into consideration Glenn’s separate property as well as the couple’s community property. Glenn states, “The term ‘marital property* as used in the charge skewed the property the jury could consider and ultimately affected the judgment.” Any error in the use of the term “marital property” was harmless. The judgment does not award Helen the damages found by the jury for “loss of marital property.” With respect to Glenn, the trial court made its own division of property; with respect to Richards, the trial court awarded Helen only the damages for mental anguish, and not the damages found by the jury for loss of marital property. C. Fiduciary duty Glenn asserts that the trial court erred in allowing question one, which asked if Glenn breached his fiduciary duty to Helen, because it assumed a fiduciary duty between Glenn and Helen, “which existence of such fiduciary relationship should have, at the very least, been a predicate to this question.” A husband and wife owe each other special fiduciary duties. Matthews v. Matthews, 725 S.W.2d 275, 279 (Tex.App.— Houston [1st Dist.] 1986, writ refd n.r.e.). Additionally, we think it is significant that Glenn is an attorney. To the extent that Glenn was advising Helen of the legal aspects of a transaction by which he would benefit, Glenn assumed the “high duty of an attorney to his client.” Bohn v. Bohn, 455 S.W.2d 401, 412 (Tex.Civ.App.—Houston [1st Dist.] 1970, writ dism’d). Because Glenn had a fiduciary duty to Helen as a matter of law, the trial court did not err in overruling Glenn’s objection to question one. Richards complains about the definition of fiduciary duty in jury question three. That instruction provides: The relationship between an attorney and client is highly fiduciary in nature. A fiduciary relationship is one of special trust and confidence and the law requires that all dealings between an attorney and client be characterized by the utmost good faith, candor and honesty. An attorney must affirmatively disclose to his client all material facts bearing on the Ghent’s case, as well as the legal consequences flowing from the facts. A “material fact” is a fact which a reasonable person under the same or similar circumstances, would attach importance to in determining his course of conduct or action. Richards asserts on appeal: Jury question 3[,] which was submitted over Appellant[’]s objections];,] only inquires whether there was a technical breach by failing to reveal a material fact in the divorce or in marital property division], and] does not inquire whether Appellee was harmed.... Appellant also objected to the Jury Question 3 because it does not contain the caveat [“]to a material fact [] which is known to the attorney.” ... Appellant also objected to the word “highly” in the Instruction to Jury Question 3 as a comment on the weight of the evidence because a fiduciary duty exists between the attorney and client and is not “highly fiduciary in nature.” We understand Richards’ first complaint to be that question three was erroneous because it did not ask whether Helen had been damaged by Richards’ actions. In question 6A, the jury was asked what amount of damages would compensate Helen for “her damages, if any, that were proximately caused by the breach of fiduciary duty by Dianne Richards, if any .... ” Any error in omitting an inquiry regarding injury in question six is therefore harmless. We hold that the omission of the phrase “which is known to the attorney” from the instruction was not error because it is necessarily implicit. Finally, we hold that it was not error to describe the relationship between an attorney and client as “highly fiduciary.” See Judwin Properties, Inc. v. Griggs & Harrison, 911 S.W.2d 498, 506 (Tex.App.—Houston [1st Dist.] 1995, no writ) (“The attorney-client relationship is highly fiduciary in nature.”). D. Fraud Glenn asserts the fraud question submitted to the jury was “a shade and phase of Glenn’s alleged breach of fiduciary duty” and the submission was therefore erroneous. The authorities upon which he relies stand for the proposition that the breach of the fiduciary relationship existing between a husband and wife as to the community property controlled by each spouse is termed a “fraud on the community.” In re Marriage of Moore, 890 S.W.2d 821, 827 (Tex.App.—Amarillo 1994, no writ). In Moore, the court of appeals stated: Any such conduct in the marital relationship is termed fraud on the community because, although not actually fraudulent, it has all the consequences and legal effects of actual fraud in that such conduct tends to deceive the other spouse or violate confidences that exist as a result of the marriage. Id. However, the fraud question in this case asked if Glenn committed actual fraud, not constructive fraud. “Fraud on the community” is a claim by one spouse against another for improper depletion of the community estate prior to dissolution of the the community. Belz v. Belz, 667 S.W.2d 240, 246 (Tex.App.—Dallas 1984, writ refd n.r.e.). Fraud on the community is not permitted as an independent cause of action in a divorce suit; it is a wrong by one spouse that the court can consider in its division of property and may justify an unequal disposition of the property. Id. at 247. However, a spouse may, in the context of a divorce, recover for other intentional torts committed upon the spouse during marriage. Moore, 890 S.W.2d at 828. The distinction is that in such cases, the tort is committed upon the spouse’s separate estate, while fraud on the community is necessarily perpetrated on a spouse’s interest in the community. Id. In this case, Helen does not allege that Glenn committed constructive fraud by improperly depleting or concealing community assets. Such a claim would be considered a fraud against the community estate and could not be brought as an independent cause of action. Belz, 667 S.W.2d at 246-47. Instead, Helen claims that Glenn committed actual fraud against her individually by fraudulently inducing her into agreeing to a divorce and a contractual division of property. Helen’s claim is that but for Glenn’s misrepresentations about the reasons for the divorce, she would never have agreed to the divorce or signed a contract dividing the community property- Thus, we hold that Helen’s claim is not one of constructive fraud on the community, but of actual fraud perpetrated against her individually. The actual fraud against her caused mental anguish damages, i.e., damages recoverable by her separate estate. Cf., Moore 890 S.W.2d at 829-80 (mental anguish damages not recoverable if the cause of action is one of fraud on the community). Moore and Belz do not support Glenn’s contention that the submission of the fraud question in this case was erroneous. Glenn also complains that the fraud question did not “specify a time frame that the alleged fraud was perpetrated.” He asserts this was error because “different facts existed in November of 1991 versus May of 1992; specifically, Appellant had a right to know when the jury deemed this fraud occurred because if such was nonexistent in May of 1992, Helen’s voluntary signing at that time may have wiped out any error associated with the November signing.” Glenn has provided no authority for his argument that the broad form submission in this case was improper. We find no error in the submission of the question. E. The bill of review question Question five asked whether the division of marital property between Helen and Glenn was the result of extrinsic fraud by Glenn, unmixed with any negligence on Helen’s part. Glenn raised a number of objections to this question. On appeal, he argues that the question was improper because it did not inquire about fault (in addition to negligence) on Helen’s part, did not inquire about the fault or negligence of Richards, and did not specifically reference the November 1991 decree or the May 1992 nunc pro tunc decree. We hold that any error in submitting the bill of review question is harmless.