In the Estate of Robert L. Wright, Deceased v. <<

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Court of Appeals of Texas, Houston (14th Dist.).

In the Estate of Robert L. Wright, Deceased

NO. 14–14–00401–CV

Decided: December 15, 2015

Panel consists of Chief Justice Frost and Justices Jamison and Busby (Frost, C.J., dissenting).

OPINION

This appeal concerns the disposition of a particular piece of property owned by the decedent, Robert L. Wright.  Appellant Robert Tautenhahn is the independent executor and a named beneficiary of the will admitted to probate.  Appellee Leroy Stroman contested the will and sought to establish his entitlement to the particular property, among other things.  The trial court held that the will in question was valid and properly admitted to probate but that Wright had gifted the property to Stroman.  Accordingly, the trial court created a constructive trust over the property favoring Stroman.  The trial court also awarded attorney's fees to Stroman to be paid from Wright's estate because Stroman in good faith defended a different will in which he was a named beneficiary.

In three issues on appeal, Tautenhahn contends that (1) the trial court erred in basing its decision that Wright made a gift of the property to Stroman on testimony that was inadmissible under the so-called Dead Man's Rule, (2) the evidence was legally insufficient to support the trial court's gift finding, and (3) the trial court erred in awarding Stroman attorney's fees.1  We affirm.

Background

Prior to his death, Robert L. Wright owned several properties in Brazoria and Harris counties in Texas.  When Wright died on January 10, 2012, at the age of 87, he was not married and had no surviving children, parents, or siblings.  A will purportedly executed on July 7, 2010 was admitted to probate on February 21, 2012.  This will named Robert Tautenhahn as independent executor and bequeathed half of Wright's estate to Tautenhahn and half to Lindsey Bozeman.  Bozeman disclaimed her share of the inheritance shortly after Wright's death.  Leroy Stroman subsequently filed an application to contest the validity of the will, alleging forgery, undue influence, and a lack of testamentary capacity.  Stroman asserted that another, unproduced instrument that bequeathed several properties to him was the proper will to be probated.  Stroman further alleged that Wright had gifted him a property located at 105 Sweeney Street in West Columbia, Texas and in the alternative, that he was entitled to reimbursement for expenses at that property.

Stroman testified that he began working for Wright in 1987 or 1989, initially doing general maintenance and later as a manager and supervisor for many of Wright's properties.2  According to Stroman, he had a very close relationship with Wright, “like father and son.”  When Stroman told Wright that a house he liked, at 105 Sweeney Street, was put on the market in 1994, Wright bought the house and gave Stroman the keys.  For the next two years or so, Stroman paid Wright $400 a month for the house.  Wright then told Stroman “that was it,” the house was Stroman's.  Stroman said that he never tried to get Wright to sign over a deed to the property because he trusted Wright and, shortly after Stroman made the last payment, Wright showed him a copy of a will which showed Stroman as receiving the 105 Sweeney Street property.  Tautenhahn acknowledged that such a will existed at one time but argued it was superseded by later wills.  Copies of the will shown to Stroman apparently were discarded when Wright's condo was cleaned out while he was in the hospital, and no copy was produced at trial.

Stroman further stated that he had lived at the 105 Sweeney Street property continuously since about 1994 except for an eight month period when the house was being remediated due to mold.  Stroman said that he paid the property insurance premiums and the insurance was in his name.3  When the mold remediation occurred, the insurance company only dealt with Stroman and made the checks out to Stroman and the remediation contractor.  Stroman estimated the total amount of insurance proceeds—including that needed to restore the home and provide him with a hotel room while the work was being done—at $135,000.  He further valued the current worth of the house to be around $100,000.

James Wleczyk testified once in casual conversation, Wright told him that he was going to leave a lot of properties to Stroman when he died because Stroman was the only one “that he could count on when he needed something.”  According to Wleczyk, Wright indicated all of his properties in West Columbia would be left to Stroman, including the house Stroman was then living in, which Wleczyk referred to as “Leroy's house.”  Wleczyk recalled that this conversation occurred in 2009 or 2010.

Tautenhahn testified that he met Wright in 1961 through the Big Brothers Association when Wright was assigned as Tautenhahn's mentor.  According to Tautenhahn, they kept in touch over the years;  “it's kind of like having an uncle, he is just always there,” he said.  In 2009, Wright asked Tautenhahn to help him with his rental properties and straighten out his finances.

Tautenhahn stated that in 2010, he had a crew of workers clean Wright's condo, which apparently was full of papers and other possessions retained through the years.  According to Tautenhahn, Wright regularly had wills prepared, and the crew discovered and discarded copies of a number of wills.  Tautenhahn explained that he assumed if anyone needed one of the wills, a copy would be found in a safe place.  In addition to the July 7, 2010 will that was admitted to probate, wills from 1979 and 1997 were admitted into evidence.  The 1997 will included Stroman as a beneficiary, but Stroman said that was not the will Wright had shown him.  The 1997 will bequeathed a percentage of Wright's estate to Stroman rather than naming specific properties.  Tautenhahn acknowledged that while cleaning Wright's condo, he saw a document that listed Stroman as the recipient of 105 Sweeney Street.  He did not recall specifically whether it was a will or a deed, but he said, “It read more like a will.”  When Wright began having medical issues, Stroman asked to have 105 Sweeney Street transferred into his name.  Tautenhahn pressed Wright to transfer the property and even began the process, but Wright refused because Stroman had not been appreciative.  Tautenhahn explained that it would have helped Wright's finances to be rid of the property because its taxes were overdue.  In November 2011, Tautenhahn attempted to have Stroman evicted from 105 Sweeney Street.4  Tautenhahn said the eviction proceeding was at Wright's direction as Wright had come to feel Stroman was “not very appreciative.”  In his testimony, Stroman noted that in prior wills, Wright had consistently provided significant gifts for the University of Texas, thus casting doubt on the validity of the July 7, 2010 will, which left nothing for the university.  Stroman said that Tautenhahn called him at one point and was reading parts of Wright's will over the phone that left properties to Stroman, asking Stroman, “what kind of damn hold do you have on Mr. Wright?”

When the trial court asked Stroman whether he was making a legal or equitable argument that the property became his prior to Wright's death or that there is a purported will that had not been produced, Stroman replied “both.”  Stroman further acknowledged that taxes were past due on the property.  He said that he thought those were going to be paid by the estate and he saw no reason to pay the taxes if he was not going to be awarded the property.

At the conclusion of the trial, the court permitted Stroman's attorney to put on evidence regarding her fees, while withholding judgment as to whether those fees were recoverable in the case.  Tautenhahn objected to any award of fees primarily based on Stroman's failure to plead for such relief.  At the trial court's invitation, Stroman filed a post-trial document entitled “Authority for Attorney's Fees,” setting forth the basis for his request that fees be awarded.

In its final judgment, the trial court determined that the July 7, 2010 will was valid, that Wright had testamentary capacity when he executed it, that no fraud or forgery occurred, and that no undue influence was brought to bear on Wright to sign the will.  The court further determined that the July 7, 2010 will revoked all previous wills, codicils, and testamentary devices of Wright and that Tautenhahn was properly appointed independent executor under the will.  Regarding 105 Sweeney Street, however, the trial court determined that Wright had made “a completed oral gift” of the property to Stroman in or around 1996.  On that basis, the court ordered the property be placed in a constructive trust and transferred by special warranty deed to Stroman as the sole beneficiary of the constructive trust.  The court noted that this order rendered Stroman's claim for reimbursement of expenses moot.  Lastly, the trial court ordered Tautenhahn, as independent executor, to pay Stroman's attorney's fees as a good faith proponent of a purported will under former Probate Code section 243.  The court calculated Stroman's attorney's fees to be $57,179.15.  All requested relief not expressly granted in the judgment was denied.  The trial court's subsequent findings of fact and conclusions of law essentially track the holdings in the final judgment.

Dead Man's Rule

In his first issue, Tautenhahn contends that the trial court erred in basing its finding of an oral gift of 105 Sweeney Street on evidence that was inadmissible under the Dead Man's Rule. This hybrid argument neither expressly asserts the trial court erred in admitting evidence that should have been excluded nor directly challenges the legal sufficiency of the evidence (as does Tautenhahn's second issue).  Regardless, we conclude that the factual premise on which the argument is based—that the trial court based its decision on inadmissible evidence—is not supported by the record.

The Dead Man's Rule generally prohibits a party to certain types of lawsuits from testifying regarding oral statements by a testator unless the statements can be corroborated or are solicited by the opposing party.  Tex.R. Evid. 601(b).5  As Tautenhahn points out, Stroman testified, or attempted to testify, several times regarding what Wright said about 105 Sweeney Street.  Tautenhahn maintains that this testimony violated the Dead Man's Rule because it described oral statements by a testator and was not corroborated or solicited by an opposing party.

Tautenhahn additionally points out his trial counsel objected several times when Stroman attempted to testify regarding Wright's remarks.  The trial court, in fact, sustained most of the Dead Man's Rule objections, thus excluding the objected-to testimony.6  However, Tautenhahn's lawyer did not request a running objection to such evidence and did not object to the following exchanges between Stroman and Stroman's counsel:

Q. Okay.  And did Mr. Wright have—did Mr. Wright tell you that he would purchase the house for you?

A. Yes.

Q. And how much did you have to pay him monthly on the payment for the house?

A. Four hundred.

Q. Okay. And at some point in time, did Mr. Wright tell you that—that you owed him no more on the house?

A. Yes.

Q. Okay, and when was that?

A. It was two years or better that I paid him that and he told me that was it, the house was mine.

Because Tautenhahn failed to object to this testimony, the trial court would not have erred in considering it in determining whether Wright made an oral gift of 105 Sweeney Street to Stroman, regardless of whether such evidence would otherwise have been inadmissible under the Dead Man's Rule. See Tex.R.App. P. 33.1(a) (providing that as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court in a timely and sufficiently specific manner);  Wilkerson v. Wilkerson, 321 S.W.3d 110, 121 (Tex.App.—Houston [1st Dist.] 2010, pet. dism'd) (declining to address admissibility of objected-to evidence because similar unobjected-to evidence was sufficient to support trial court's factual finding).

The trial court also overruled a few Dead Man's Rule objections to similar testimony, but even assuming the trial court erred in doing so, the failure to object to the instances set forth above rendered such error harmless.  See, e.g., Katy Int'l, Inc. v. Jinchun Jiang, 451 S.W.3d 74, 94 (Tex.App.—Houston [14th Dist.] pet. denied);  Austin v. Weems, 337 S.W.3d 415, 421 (Tex.App.—Houston [1st Dist.] 2011, no pet.).  For the foregoing reasons, we overrule Tautenhahn's first issue.

Completed Oral Gift

In his second issue, Tautenhahn challenges the legal sufficiency of the evidence to support the trial court's finding that Wright made a completed oral gift of 105 Sweeney Street during his lifetime.  When reviewing for legal sufficiency, we consider the evidence in the light most favorable to the finding and indulge every reasonable inference that supports the challenged finding.  City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005).  We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not.  Id. at 827.  If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails.  BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002).  As the trier of fact in this case, the trial judge was the sole judge of witness credibility and of the weight to be given testimony.  See City of Keller, 168 S.W.3d at 819.

Generally, a conveyance of real property must “be in writing” and “subscribed and delivered by the conveyor” or his agent.  Tex. Prop.Code § 5.021 (“Instrument of Conveyance”);  see also Tex. Bus. & Com.Code § 26.01(a), (b)(4) (“Statute of Frauds”).  The general rule does not apply, however, to a parol gift of real estate in equity.  Starr v. A.J. Struss & Co., No. 01–14–00702–CV, 2015 WL 4139028, at *4 (Tex.App.—Houston [1st Dist.] July 9, 2015, no pet.) (mem.op.).  To establish a valid parol gift of real estate in equity, a party must show:  (1) a gift in praesenti, that is, a present gift;  (2) possession under the gift by the donee with the donor's consent;  and (3) permanent and valuable improvements by the donee with the donor's consent or other facts demonstrating that the donee would be defrauded if the gift were not enforced.  E.g., id.;  In re Estate of McNutt, 405 S.W.3d 194, 196 (Tex.App.—San Antonio 2013, no pet.);  Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex.App.—Dallas 2006, no pet.).  To be a present gift, the donor must, at the time he makes it, intend an immediate divestiture of the rights of ownership out of himself and a consequent immediate vesting of such rights in the donee.  Starr, 2015 WL 4139028, at *5;  Troxel, 201 S.W.3d at 297.

In challenging the sufficiency of the evidence regarding parol gift, Tautenhahn focuses exclusively on the first element, which requires evidence of intent to make a present gift of the property as opposed to a promise of a future gift.  Tautenhahn argues that Stroman's admission that Wright stated he would make provision for the property in his will negated as a matter of law any intent to make a present gift of 105 Sweeney Street during Wright's lifetime.  We disagree.

Tautenhahn cites O'Donnell v. Halladay, 152 S.W.2d 847 (Tex.App.—El Paso 1941, writ ref'd w.o.m.), for the proposition that including property in a will negates any intention to make a present gift.  O'Donnell, however, is readily distinguishable.  The jury there found that no gift had been made despite the donor's delivery of his bank passbook to the plaintiff.  Id. at 848–49.  An instrument that purported to be a will evidenced an intention to make a gift in the future and was sufficient to support the jury's finding.  Id. at 851.  The court observed no evidence of the donor's intention sufficient to constitute a gift in connection with the delivery of the passbook.  Id. Here, the trial judge found evidence of a completed life-time gift in connection with the delivery of the property to Stroman.

Tautenhahn also cites two cases to support his argument that evidence a donor intended for property to remain his until death negates present donative intent.  See Dorman v. Arnold, 932 S.W.2d 225 (Tex.App.—Texarkana 1996, no writ);  Olive v. Olive, 231 S.W.2d 480 (Tex.Civ.App.—Dallas 1950, no writ).  Again, both cases are readily distinguishable.  In Dorman, testimony clearly established that although the donee's name was placed on a CD and savings account prior to the donor's death, the contemplated gift was of whatever funds remained in the savings vehicles at the time of the donor's death and not before.  932 S.W.2d at 227–29.  Similarly, in Olive, although the donor and donee opened a joint bank account with a right of survivorship, evidence was clear that the donor intended for the donee to receive whatever funds remained in the account at the time of the donor's death.  231 S.W.2d at 481–83.  In each case, the donor intended to use the money in the account during the balance of the donor's lifetime.  There was simply no evidence of an intention to make a present gift.  Here, in contrast, the language Wright allegedly used, indicating the house was Stroman's, as well as his actions in discontinuing offsets from Stroman's paychecks, are clearly suggestive of an intention to bestow a present gift.

Moreover, the fact that Wright may have included 105 Sweeney Street in a subsequent will does not necessarily negate the evidence that Wright had already gifted equitable title to that property to Stroman.  In Dickson v. Dickson, 993 S.W.2d 735, 740 (Tex.App.—Houston [14th Dist.] 1999, no pet.), we held that a gift of land obtained by a parol gift would not be passed by will.  A will only speaks at the time of the testator's death, and the estate's property cannot be assessed until that date.  The will can only give things possessed by the testator at his death.  Id. at 740;  see also Shriner's Hosp. for Crippled Children of Tex. v. Stahl, 610 S.W.2d 147, 150 (Tex.1980).

Equitable title indicates a beneficial interest in property and entitles the holder to formal legal title.  Longoria v. Lasater, 292 S.W.3d 156, 165 (Tex.App.—San Antonio 2009, pet. denied) (citing Black's Law Dictionary at 1523 (8th ed.2004)).  Ownership of the equitable estate is the real ownership;  the legal estate is no more than the “shadow following the equitable estate.”  Patty v. Middleton, 82 Tex. 586, 17 S.W. 909, 912 (Tex.1891);  Smith v. Sumeer Homes, Inc., No. 05–11–01632–CV, 2013 WL 2467252, at *3 (Tex.App.—Dallas June 6, 2013, pet. denied) (mem.op.);  Neeley v. Intercity Mgmt. Corp., 623 S.W.2d 942, 951 (Tex.App.—Houston [1st Dist.] 1981, no writ).  Viewing the evidence in the light most favorable to the trial court's finding, as we must, there was more than a scintilla of evidence to support the finding that Wright intended to make a present gift to Stroman of equitable title to 105 Sweeney Street despite apparently also indicating that he would make provision in his will for the legal title in the property to be put in Stroman's name.  See Troxe0 201 S.W.3d at 299–300 (holding donee received equitable title to house based on oral gift even if deed did not effectively convey title to donee).

There was clear testimony that Wright bought the property with the intention of at some point giving or conveying it to Stroman;  Stroman paid Wright on the property for a couple of years or more;  and then Wright told Stroman that was enough, the property was Stroman's.7  Additionally, there was evidence that after Wright made that pronouncement, the insurance on the property was switched to Stroman's name and Stroman paid the premiums.  Further, when mold remediation work was performed on the house, the insurance company reportedly dealt only with Stroman and made checks out to Stroman and the contractor.

Any conflict or inconsistency in the evidence created by the mention of Wright's will was for the judge to resolve as fact-finder.8  See City of Keller, 168 S.W.3d at 820;  Allstar Nat. Ins. Agency v. Johnson, No. 01–09–00322–CV, 2010 WL 2991058, at *5 (Tex.App.—Houston [1st Dist.] July 29, 2010, no pet.) (mem.op.);  cf.  Whitten v. Dethloff, 214 S.W.2d 480, 483–85 (Tex.Civ.App.—Fort Worth 1948, no writ) (holding evidence was sufficient to support verdict of oral gift of real estate, and it was jury's function to resolve conflicting evidence, where same property was left in decedent's will to other parties).  We will not substitute our judgment for that of the trial court.  See City of Keller, 168 S.W.3d at 822;  Allstar Nat. Ins., 2010 WL 2991058, at *5.9 Because there was more than a scintilla of evidence to support the trial court's present gift finding, we overrule Tautenhahn's second issue.  See BMC Software, 83 S.W.3d at 795.10

Attorney's Fees

The trial court awarded Stroman attorney's fees based on his good faith presentation of an alleged will for probate as permitted under former section 243 of the Texas Probate Code.11 In his third issue, Tautenhahn contends that the trial court erred in awarding Stroman attorney's fees because former section 243 does not mandate an award of fees under these circumstances, Stroman failed to include a request for attorney's fees in his live pleadings, and the issue was not tried by consent.  The availability of attorney's fees under a particular statute is a question of law for the court.  Holland v. Wal–Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999).

Former section 243 permitted but did not require an award of attorney's fees to a devisee, legatee, or beneficiary of an alleged will for the good faith defense of the will or prosecution of an attempt to admit the will to probate, whether or not the will in question was found to be valid.  In re Estate of Washington, 289 S.W.3d 362, 368 (Tex.App.—Texarkana 2009, pet. denied);  Zapalac v. Cain, 39 S.W.3d 414, 420 (Tex.App.—Houston [1st Dist.] 2001, no pet.).12  Tautenhahn is therefore correct that former section 243 did not require the court to award fees and, therefore, such award must be supported by proper pleadings or tried by consent.  See In re Estate of Gaines, 262 S.W.3d 50, 60 (Tex.App.—Houston [14th Dist.] 2008, no pet.)  (“Absent a mandatory statute, a trial court's jurisdiction to render a judgment for attorney's fees must be invoked by pleadings, and a judgment not supported by pleadings requesting an award of attorney's fees is a nullity.”).

We next turn to the question of whether Stroman requested attorney's fees in his pleadings.  None of Stroman's live pleadings at the time of trial contained a request for attorney's fees.  Although he did request fees in his Amended Application to Set Aside Order Probating Will, filed on September 20, 2012, he again amended that pleading on November 19, 2012, dropping any mention of, much less a request for, attorney's fees.  See Scruggs v. Linn, 443 S.W.3d 373, 382 (Tex.App.—Houston [14th Dist.] 2014, no pet.) (explaining that an amended petition completely replaces and supersedes a prior petition).

At the conclusion of trial when Stroman's attorney called herself as a witness on attorney's fees as a proponent of a will, Tautenhahn's counsel objected on the ground that Stroman had no pleadings on file for such relief.  The trial judge then stated that he was going to allow the testimony “just to get it of record” and would later determine whether Stroman was entitled to attorney's fees.  The judge allowed Tautenhahn's counsel whatever time he needed to review Stroman's counsel's fees affidavit and then cross-examine her, which he did.

The judge also invited Stroman's counsel “to submit ․ case law or something to clarify what you think is your entitlement” to attorney's fees.  Stroman thereafter filed his “Authority for Attorney's Fees,” in which he insisted that he was entitled to fees as a will proponent under former section 243 and “should be awarded fees.” 13  Additionally, Stroman filed a motion for entry of judgment, seeking entry of an attached proposed judgment that included an award of attorney's fees expressly based on former section 243.  In the final judgment, the trial court awarded Stroman attorney's fees to be paid by the estate of $57,179.15.  A number of courts have held under similar circumstances that a posttrial, pre-judgment filing with the court that requests attorney's fees can serve as a trial amendment satisfying the need for pleading for attorney's fees unless the opposing party presents evidence of surprise or the document asserts a new cause of action.  See Nisby v. Dentsply Int'l, Inc., No. 05–14–00814–CV, 2015 WL 2196627, at *1 (Tex.App.—Dallas May 11, 2015, no pet.) (mem.op.) (holding post-verdict motion to enter final judgment that specifically requested attorney's fees was sufficient pleading to support award of fees);  Good v. Baker, 339 S.W.3d 260, 267 (Tex.App.—Texarkana 2011, pet. denied) (holding post-trial, prejudgment motion for attorney's fees based on permissive statute was a trial amendment supporting award of fees);  Swale v. Medina Cmty. Hosp., 966 S.W.2d 693, 701–02 (Tex.App.—San Antonio 1998, pet. denied) (holding post-verdict, pre-judgment motion for fees effectively served as trial amendment supporting award of fees);  Candelier v. Ringstaff, 786 S.W.2d 41, 43–44 (Tex.App.— Beaumont 1990, writ denied) (holding trial court did not err in awarding fees under former section 243 based on request for fees in post-trial amended pleading).14

In the present case, even though his live pleadings at the time of trial did not contain such a request, Stroman had requested attorney's fees in previous pleadings, he requested and put on evidence regarding attorney's fees at the conclusion of trial, and he filed his Authority for Attorney's Fees and motion for entry of judgment prior to the entry of final judgment.  Tautenhahn does not argue surprise on appeal or cite to any evidence suggesting that he was surprised by such a request.  In fact, the trial court gave Tautenhahn an opportunity to review Stroman's counsel's affidavit and cross-examine her on the issue at the end of the trial.  Under these specific circumstances, we hold that the trial court's award of attorney's fees was supported by pleadings.  Accordingly, we overrule Tautenhahn's third issue.

Having overruled each of Tautenhahn's issues, we affirm the trial court's judgment.

DISSENTING OPINION

Robert L. Wright purchased real property (105 Sweeney Street in West Columbia, Texas), intending to give the property to appellee Leroy Stroman at some future point.  Stroman began living on the property and, for a few years, paid Wright a monthly sum before Wright told Stroman no further payments were necessary, indicating that Wright would leave the property to Stroman in Wright's will.  Although Wright signed wills that would have given the property to Stroman, Wright did not leave the property to Stroman in the will admitted to probate.  The trial court determined, however, that Wright gave Stroman the property as a gift before Wright's death.  Appellant Robert Tautenhahn, the independent executor of Wright's estate, now challenges the ruling on appeal.

The majority affirms the judgment even though the record contains no evidence that Wright ever had the requisite donative intent to give the gift.  Because the evidence is legally insufficient to support the trial court's finding that Wright made an oral gift of the Sweeney Street property to Stroman, this court should reverse and render judgment against Stroman.  The majority also affirms the trial court's award of attorney's fees under a permissive-fee statute even though Stroman did not plead for attorney's fees and the parties did not try the issue by consent.  The trial court erred in awarding attorney's fees in the absence of a mandatory-fee statute, pleadings requesting fees, and trial by consent.  This court should reverse the attorney's fee award, too.

 Insufficiency of the Evidence to Support a Parol–Gift Finding

Texas sets the bar high for those seeking to prove a parol gift of real estate.  Because the evidence is legally insufficient to establish the critical element of an intention to make a present gift of the Sweeney Street property to Stroman, the trial court's parol-gift finding cannot stand.

The burden of proving a gift of real property rested on Stroman, as the party asserting the parol gift.1  To establish a parol gift of real property, Stroman had the burden to prove Wright had the requisite donative intent at the time of the alleged gift.2  Stroman had to show that Wright intended to immediately divest himself of ownership and vest immediate ownership in Stroman.3  Texas law is demanding and unforgiving on this point.  If real estate could be conveyed by seizing on fragments of casual conversation, the purpose of the statute of frauds would be defeated.  That is precisely why the parol-gift exception is narrow and the standards of proof exacting.  Permissive occupation of the land and mere expectation of a gift are not enough to show donative intent.4

When reviewing the legal sufficiency of the evidence, the court is to consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it.5  We are to credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not.6  We must determine whether the evidence at trial would enable reasonable and fair-minded people to make the findings at issue.7  The factfinder is the sole judge of witness credibility and the weight to give to testimony.8  Thus, to affirm the trial court's finding of a parol gift, this court must conclude that the trial evidence would enable reasonable and fair-minded people to find that at some point before his death, Wright intended to immediately divest himself of ownership of the Sweeney Street property and to vest immediate ownership of this property in Stroman.9  Nothing in the record supports that notion.

No Evidence of Requisite Intent

Stroman consistently testified that Wright promised to leave the Sweeney Street property to Stroman in his will.  The majority finds more than a scintilla of evidence to support the finding that Wright intended to make a present gift to Stroman.  According to the majority, the following evidence is sufficient to find Wright had the requisite intent to vest ownership of the Sweeney Street property in Stroman:

• Wright bought the property with the intention of at some point conveying it to Stroman;

• Stroman paid Wright rent for about two years and then Wright told Stroman not to pay anymore because the property was Stroman's;

• Wright switched the insurance on the property to Stroman's name and Stroman paid the premiums;

• During mold remediation on the property, the insurance company dealt only with Stroman.

Testimony that Wright bought the Sweeney Street property with the intention of conveying it to Stroman is not evidence of a present intention to vest immediate ownership in Stroman, particularly when Stroman paid Wright for that property for a period of time.  Likewise, evidence that Wright then allowed Stroman to live on the property without paying rent, but required Stroman to pay the insurance premiums and maintain the property, is not evidence Wright intended to vest immediate ownership of the property in Stroman.10

The only evidence the majority cites that could evince the requisite intention is the majority's statement that “Wright told Stroman the property was Stroman's.” 11  But, there is no evidence in the record that would enable reasonable and fair-minded people to find Wright told Stroman that the Sweeney Street property was “Stroman's” because Wright intended to immediately divest himself of ownership of the property, as opposed to being “Stroman's” because Wright promised to leave the property to Stroman in his will.

After testifying that Wright bought the Sweeney Street property in 1994, Stroman testified on direct examination as follows:

Q: So you all [Wright and Stroman] had an agreement that you would pay him $400 a month for the house?

A: Yes․

Q: Okay. Now how long did you pay on the note for that house?

A: Two years.

Q: How many?

A: Two years or a little over.

Q: Well, in two years you wouldn't have paid off the purchase price of the house?

A: No.

Q: So what happened after the end of the two-year period?

A: He told me that that was it, that that was my house, he was stopping the notes now and that he was putting it in his Will.

* * *

Q: [W]hy did you not try to get Mr. Wright to go ahead and deed the house to you as opposed to leaving it in the Will?

A: I trusted Mr. Wright.  He showed me the Will and whatever was in there.

* * *

Q: And at some point in time, did Mr. Wright tell you that—that you owed him no more on the house?

A: Yes.

Q: Okay, and when was that?

A: It was two years or better that I paid him that and he told me that was it, the house was mine.

* * *

Q: Now, after he purchased the house, did he make you sign any type of agreement?

A: No.

Q: Or did you sign an agreement to that effect?

A: We didn't sign no agreement.  We shook hands and I thanked him, and I can't remember how long later, but he brought that Will—

Q: No, I'm just asking about the agreement.

A: No, there was nothing written.

* * *

Q: Okay. Now when did he [Wright] tell you he was going to transfer title to your name?

* * *

A: He said he was going to put it in his Will and he did.

Q: Okay. So that's how you expected the transfer of title to come about from him to you?

A: Yes, after he showed me the Will.

The majority interprets Stroman's testimony as evidence that Wright made a pronouncement giving the Sweeney Street property to Stroman.  But, the words “[h]e told me that was it, that that was my house” cannot be fairly read by plucking them from testimony as if they stood alone.  Stroman clearly states several times that Wright's intent was to make the property Stroman's by a bequest in Wright's will.  Isolating a handful of words made in this context does not convert a promise to give the property in the will into a present intention to immediately transfer ownership of the property.  Consistent with his understanding that there was no completed parol gift of the property, in 2010, Stroman asked that the Sweeney Street property be transferred into his name when Wright became ill.  Stroman not only testified to these critical facts, he made them a basis for many of his filings in probate court.

For example, Stroman acknowledged unequivocally in his “Motion for Reimbursement or in the Alternative to be Deemed a Creditor” that the alleged oral gift was rooted in Wright's promise to bequeath the property to Stroman in Wright's will, stating “Stroman paid approximately $400.00 per month and after two years, Wright advised that he wanted no further payments, but would make provisions for him [Stroman] to have the house in his [Wright's] will.”  Similarly, James Wleczyk testified that, on one occasion in the fall of 2009 or 2010, Wright “indicated to me ․ that [Stroman] would be a rich man when [Wright] died. He said there was a lot of properties that [Wright] was going to leave [Stroman]

According to Stroman, two other Wright wills (the unproduced will and the April 2010 will) included specific bequests of the Sweeney Street property to Stroman.  Robert Tautenhahn testified about Wright's desire to have Stroman evicted from the house in late 2011.  This evidence also signified Wright's clear intent not to make a gift of the Sweeney Street Property in 1996, as the majority concludes, but rather to retain title during Wright's lifetime and convey the property to Stroman by will.

Wright's intention to include the Sweeney Street property in his will negates the intention to make an inter vivos gift of that property.  Because a will is without legal effect until the time of the testator's death, a statement that a testator intends to bequeath property in a will evinces only an intention to make the gift in the future.12  A gift by will is a future gift, not a present gift.13

Considering the trial evidence in the light most favorable to the challenged finding, indulging every reasonable inference that would support the finding, crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not, the trial evidence would not enable reasonable and fair-minded people to find that, before his death, Wright intended to immediately divest himself of ownership of the Sweeney Street property and to vest immediate ownership of this property in Stroman.14  The evidence is legally insufficient to support any finding of a completed parol gift of the Sweeney Street property to Stroman during Wright's lifetime.15  Therefore, this court should reverse the trial court's award of the Sweeney Street property to Stroman (and the resulting constructive trust) and render a take-nothing judgment o n Stroman's claim for ownership of that property.

The Majority's Failure to Follow Binding Precedent Requiring Consideration of All Evidence Admitted at Trial

In determining whether the evidence is legally insufficient to support a finding of a completed parol gift of the Sweeney Street property to Stroman, this court is supposed to consider all evidence admitted at trial.16  But, the majority fails to consider all evidence admitted at trial in its legal-sufficiency analysis.  The majority states cryptically (and incorrectly) that this dissenting opinion quotes testimony on this issue that the trial court excluded from evidence.17  The majority does not identify the testimony to which it refers.18  Nor does the majority explain why it fails to do so.  If the majority believes testimony was excluded, it should say what the testimony is and show where it was excluded.

The record shows that all of the evidence quoted in this dissenting opinion was admitted at trial.  The majority wrongly concludes that unspecified testimony was excluded and thus should not be considered in the legal-sufficiency analysis.  Every iota of testimony cited in this dissent was admitted and must be considered in this analysis.19  By incorrectly determining that the trial court excluded some of this testimony, the majority is failing to follow precedent requiring this court to consider all evidence admitted at trial in the legal-sufficiency analysis.20

Abuse of Discretion to Award Attorney's Fees

In the final judgment, the trial court awarded Stroman $57,179.15 in attorney's fees to be paid by the estate.  Absent a mandatory statute, a judgment awarding attorney's fees must be supported by proper pleadings or tried by consent.21  Neither criteria is satisfied.

Stroman failed to include a request for attorney's fees in his live pleadings, and the issue was not tried by consent.  Tautenhahn objected at trial to the admission of evidence of attorney's fees for lack of pleading as soon as Stroman attempted to offer it.  Stroman did not request a trial amendment during trial or at any other time.  To this day, Stroman has not asked for leave to file a trial amendment to include a request for attorney's fees in his pleadings, and the trial court has never granted Stroman leave to do so.

The majority cites precedent from our sister courts holding that a post-verdict motion for attorney's fees constitutes a trial amendment.  But, Stroman's “Authority for Attorney's Fees” is not a post-verdict motion.  The trial court invited Stroman to file authority explaining why Stroman was entitled to attorney's fees.  In Stroman's post-trial brief, Stroman insisted, incorrectly, that his live pleading already included a request for attorney's fees, and Stroman presented authority explaining that the statutes allowed the trial court to award fees.  Though in the prayer of the “Authority for Attorney's Fees,” Stroman stated that he “should be awarded fees,” a supplemental brief is not a motion or a trial amendment or a request for one.22  But, even if the substance of the “Authority for Attorney's Fees” could be considered a request for a trial amendment, the document was filed without leave of the court.23

Requiring a party to seek leave of court to file a trial amendment before or during trial allows the opposing party to object and assert surprise or prejudice.  Stroman's “Authority for Attorney's Fees” did not place Tautenhahn on notice that Stroman was seeking to amend his pleadings (the document contained no such request) and so Tautenhahn had no notice or opportunity to object.  For this reason, and because Stroman's “Authority for Attorney's Fees” is not a motion for attorney's fees, this court should construe Stroman's filing as a memorandum of law rather than a motion for attorney's fees, an amendment of Stroman's pleadings, or a motion for leave to amend the pleadings.

Texas law does not allow recovery for unpled claims because it would be unfair to award a judgment against a party who had no notice of the claim and did not consent to try it in the absence of pleadings.  Because there is no pleading that could possibly support the attorney's fee award and because the issue was not tried by consent, this court should reverse the trial court's attorney's fee award.24

Conclusion

Stroman is not entitled to the Sweeney Street property because the trial evidence is legally insufficient to support any finding of a completed parol gift of the property to Stroman during Wright's lifetime.  And, Stroman is not entitled to the attorney's fees because he did not plead for them and the claim was never tried by consent.  Therefore, the court should (1) reverse the portions of the trial court's judgment that award the Sweeney Street property to Stroman, impose a constructive trust on that property, and award attorney's fees to Stroman, and (2) render judgment that Stroman take nothing.  Because the court does not, I respectfully dissent.

FOOTNOTES

1.   In his appellate brief, Stroman raised cross-issues and requested more relief than the trial court had already given him.  Tautenhahn filed a motion to strike those portions of Stroman's brief.  We granted that motion and struck the portions of Tautenhahn's brief raising cross-issues and requesting greater relief than he received from the trial court.  See In re Estate of Wright, No. 14–14–00401–CV (Tex.App.—Houston [14th Dist.] March 30, 2015, order).  Accordingly, we will not further consider the cross-issues or requests for greater relief in this appeal.

2.   Much of the testimony and other evidence at trial related to the state of Wright's mental faculties in and around July 2010, when the probated will was signed.  Other evidence related to the contentions of forgery and undue influence.  That evidence will not be recounted in detail here as it is unnecessary to the issues properly raised in the appeal.

3.   Stroman said that initially Wright took out the insurance policy but then put it in Stroman's name as insured and paid the premiums out of Stroman's paycheck.

4.   The evidence suggests that Tautenhahn made two attempts to evict Stroman from the property.  The first attempt, while Wright was still alive, resulted initially in Stroman being removed from the property, but that decision was apparently withdrawn at some point and Stroman returned.  The second attempt occurred after Wright's death when Tautenhahn was named independent executor.  The outcome of this proceeding was not explicitly discussed at trial, but Stroman remained on the property at that time.  Other details regarding the two attempts at eviction are sketchy in the record.This court has already issued an opinion in an appeal in Tautenhahn's forcible entry and detainer action against Stroman.  Stroman v. Tautenhahn, 465 S.W.3d 715 (Tex.App.—Houston [14th Dist.] 2015, pet. dism'd w.o.j.).  The issues addressed in that appeal are not relevant to the present case.

5.   5 Effective April 1, 2015, after trial in this case, Rule 601(b) was amended “to clarify its meaning without making any substantive changes.”  Tex.R. Evid. 601 cmt.  Neither party suggests that any difference between the two versions has any relevance in this case.  The relevant portions of the current version of the Dead Man's Rule read as follows:(b) The “Dead Man's Rule.”(1) Applicability.  The “Dead Man's Rule” applies only in a civil case:(A) by or against a party in the party's capacity as an executor, administrator, or guardian;  or(B) by or against a decedent's heirs or legal representatives and based in whole or in part on the decedent's oral statement.(2) General Rule.  In cases described in subparagraph (b)(1)(A), a party may not testify against another party about an oral statement by the testator, intestate, or ward.  In cases described in subparagraph (b)(1)(B), a party may not testify against another party about an oral statement by the decedent.(3) Exceptions.  A party may testify against another party about an oral statement by the testator, intestate, ward, or decedent if:(A) the party's testimony about the statement is corroborated;  or(B) the opposing party calls the party to testify at the trial about the statement.

6.   At one point during a discussion of the applicability of the Dead Man's Rule, the trial judge suggested that he might at some point revisit his determination that the rule applied to exclude testimony concerning Wright's statements in respect to 105 Sweeney Street.  There is no place in the record, however, where the court explicitly revisited or reversed its original ruling and stated it would consider the previously excluded evidence.

7.   The dissent quotes additional trial testimony, some of which was excluded when the judge sustained an objection to its admissibility.

8.   Similarly, the trial court as fact-finder could have simply disbelieved Tautenhahn's statements that Wright decided to evict Stroman from the property or that Wright refused to give Stroman a deed because Wright felt Stroman was unappreciative.  See, e.g., White Oak Operating Co., LLC v. BLR Const.  Cos., LLC, 362 S.W.3d 725, 735 (Tex.App.—Houston [14th Dist.] 2011, no pet.).

9.   Tautenhahn testified that Stroman requested a deed to the property while Wright was still alive;  this suggests Stroman viewed it as something of a legal technicality.  We further note that we do not know specifically what the unproduced will said about 105 Sweeney Street;  it may have reflected a gift had already been made and legal title just needed to be transferred.  The will that was admitted to probate does not name 105 Sweeney Street, but simply bequeathed half of Wright's estate to Tautenhahn and half to Bozeman.

10.   Because Tautenhahn does not challenge the sufficiency of the evidence concerning the other two elements required to prove a parol gift of real estate, we do not discuss the evidence as it pertains to those elements.

11.   Former section 243 of the Probate Code, which was in effect when this case was filed, was repealed (along with the entire Probate Code) by the legislature, and former section 243 was recodified as section 352.052 of the Texas Estates Code without any substantive modification.  See Act of May 26, 2009, 81st Leg., R.S., ch. 680, §§ 1, 10–12, 2009 Tex. Gen. Laws 1512, 1650, 1731–32 (effective Jan. 1, 2014) (current version at Tex. Est.Code § 352.052).

12.   As applicable to this appeal, former section 243(b) stated:When any person designated as a devisee, legatee, or beneficiary in a will or an alleged will ․ defends it or prosecutes any proceeding in good faith, and with just cause, for the purpose of having the will or alleged will admitted to probate, whether successful or not, he may be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney's fees, in such proceedings.(Emphasis added.)

13.   Although not labelled as such, the Authority for Attorney's Fees was in essence a motion for attorney's fees.  Cf. Good v. Baker, 339 S.W.3d 260, 267 & n.9 (Tex.App.—Texarkana 2011, pet. denied) (holding motion for attorney's fees filed three months after jury verdict was a claim for affirmative relief and thus constituted a written pleading supporting attorney's fees award).  In determining whether a filing is an affirmative claim for relief, we look to the facts alleged and not the title or the form of the prayer for relief.  See, e.g., id.

14.   Tautenhahn cites our prior unpublished opinion in Stewart A. Feldman & Associates, L.L.P. v. Industrial Photographic Supply, Inc., in support of his position that Stroman did not properly plead for attorney's fees.  No. 14–01–00249–CV, 2002 WL 31042586 (Tex.App.—Houston [14th Dist.] Sept. 12, 2002, no pet.) (mem. op., not designated for publication). To begin with, as a pre–2003 unpublished opinion, Stewart A. Feldman & Associates has no precedential value.  See Tex.R.App. P. 47.7(b);  Alcala–Garcia v. City of La Marque, No. 14–12–00175, 2012 WL 5378118, at *7 (Tex.App.—Houston [14th Dist.] Nov. 1, 2012, no pet.) (mem.op.).  Moreover, the facts in that case are readily distinguishable from the present circumstances because the motion at issue in Stewart A. Feldman & Associates “set[ ] out no facts or legal basis to support an award of attorney's fees,” whereas Stroman's Authority for Attorney's Fees discusses both facts and law in some detail.  2002 WL 31042586, at *6–7.  Additionally, the court in Stewart A. Feldman & Associates noted that the motion therein was not filed until “long after” the trial court had determined the issues in the case.  Id. at *7. Here, the trial court had expressly reserved a ruling regarding attorney's fees and invited the filing of additional material prior to its final ruling.

1.   Green v. Canon, 33 S.W.3d 855, 858 (Tex.App.—Houston [14th Dist.] 2001, pet. denied).

2.   See Lopez v. Lopez, 271 S.W.3d 780, 788 (Tex.App.–Waco 2008, no pet.);  Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex.App.–Dallas 2006, no pet.).

3.   See Starr v. A.J. Struss & Co., No. 01–14–00702–CV, 2015 WL 4139028, at *5 (Tex.App.–Houston [1st Dist.] Jul. 9, 2015, no pet.) (mem.op);  Troxel, 201 S.W.3d at 297.

4.   See Murphy v. Stell, 43 Tex. 123, 134 (1875).

5.   City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005).

6.   See id. at 827.

7.   See id.

8.   See id. at 819.

9.   See id.

10.   See id.

11.   Ante, at p. 12.

12.   See O'Donnell v. Halladay, 152 S.W.2d 847, 851 (Tex.Civ.App.—El Paso 1941, writ ref'd w.o.m.).

13.   See id.

14.   See Dorman v. Arnold, 932 S.W.2d 225, 228 (Tex.App.—Texarkana 1996, no writ);  Olive v. Olive, 231 S.W.2d 480, 483 (Tex.App.—Dallas 1950, no writ).

15.   See Dorman, 932 S.W.2d at 228;  Olive, 231 S.W.2d at 483.

16.   See Approx. $14,980 v. State, 261 S.W.3d 182, 190 n. 6 (Tex.App.—Houston [14th Dist.] 2008, no pet.).

17.   See ante at pp. 12–13, n.7.

18.   See id.

19.   See id.;  Approx. $14,980, 261 S.W.3d at 190 n. 6.

20.   See Approx. $14,980, 261 S.W.3d at 190 n. 6.

21.   In re Estate of Gaines, 262 S.W.3d 50, 60 (Tex.App.—Houston [14th Dist.] 2008, no pet.).

22.   See Arrecchea v. Arrechea, 609 S.W.2d 852, 854 (Tex.App.—Houston [14th Dist.] 1980, writ ref'd n.r.e.).

23.   See Tex.R. Civ. P. 63;  Carr v. Houston Business Forms, Inc., 794 S.W.2d 849, 851 (Tex.App.—Houston [14th Dist.] 1990, no writ).  See also Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex.2002) (holding docket notation granting leave to amend summary-judgment motion insufficient to grant leave to amend).

24.   See In re Estate of Gaines, 262 S.W.3d at 60.

Martha Hill Jamison, Justice

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