holding that members of the jury could have compared the signatures on each document admitted with the signature on a contested will to determine whether they believed the signature on the purported will was genuineSummary of this case from Brooks v. State
On Appeal from the 20th District Court Milam County, Texas
Trial Court Cause No. 35044
This is an appeal from a probate proceeding in which the jury found that the purported will that Appellant filed for probate did not meet the requirements of a valid will and that Appellant, the surviving spouse, committed fraud against the community. The trial court entered a final judgment in which it denied Appellant's application to probate the purported will and awarded actual damages to Appellees for their claim of fraud on the community. We affirm in part and reverse and render in part.
Under a docket equalization order, the Supreme Court of Texas transferred this appeal from the Third Court of Appeals to the Eleventh Court of Appeals. As required under TEX. R. APP. P. 41.3, we will decide this case in accordance with the precedent of the Third Court of Appeals.
Appellant and her deceased husband, Carl Grothe, were married for more than twenty-five years at the time of his death. Carl had two children from a prior marriage, Ty Grothe and Tracy Tindell (Appellees). Approximately eight years after Appellant and Carl were married, Carl suffered a serious injury that caused him to lose the use of his legs. Carl was bound to a wheelchair for the rest of his life. Appellant claims that she solely cared for Carl after his injury. Prior to his death, Carl filed for divorce, but the suit was not resolved before his death.
After Carl's death, Ty filed an application to probate a will, allegedly in Carl's handwriting, in which Carl left all his property to Ty and Tracy. Appellees also claimed that Appellant committed fraud against the community and sought actual damages. Appellant contested this will and filed an application to probate a will that she alleged Carl had signed in 2008 in which Carl left all his property to her. Just before trial, Appellees withdrew the handwritten will that they had filed for probate because they became uncertain as to whether the will was entirely in Carl's handwriting.
The jury found that the will that Appellant sought to probate did not meet the requirements of a valid will and that Appellant depleted the community estate by $129,935. Consistent with the jury's verdict, the trial court entered a judgment in which it denied probate of the 2008 will and entered actual damages against Appellant in the amount of $129,935.
In Appellant's first issue, she argues that she conclusively established that Carl did sign the will. Specifically, Appellant asserts that Appellees judicially admitted that Carl signed the will, that three disinterested persons testified that they witnessed Carl sign the will, and that Ty's testimony offered to rebut that evidence was conclusory.
Appellant's argument that she conclusively established that Carl signed the will is a legal sufficiency challenge. "[A] party [that] attacks the legal sufficiency of an adverse finding on an issue on which she has the burden of proof . . . must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). When we consider a legal sufficiency challenge, we review all the evidence in the light most favorable to the trial court's judgment and indulge every reasonable inference in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit any favorable evidence if a reasonable factfinder could and disregard any contrary evidence unless a reasonable factfinder could not. Id. at 821-22, 827. We may sustain a no-evidence or legal sufficiency challenge only when (1) the record discloses a complete absence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Id. at 810 (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L. REV. 361, 362-63 (1960)).
First, Appellant argues that Appellees judicially admitted, in their live pleading, that Carl signed the will and that the signature on the will was Carl's; therefore, Appellees could not contest the authenticity of the signature on the will at trial. Further, Appellant contends that Appellees' claim that the will was a forgery fails as a matter of law because Appellees judicially admitted that the signature was Carl's and because Appellees failed to introduce any other evidence to contest the validity of the will at trial.
A judicial admission is "a formal waiver of proof usually found in pleadings or the stipulations of the parties." Fish v. Hodges, No. 03-10-00532-CV, 2012 WL 2979078, *4 (Tex. App.—Austin July 12, 2012, pet. denied) (mem. op.) (quoting Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980)). Generally, a judicial admission prevents a party from introducing evidence which contradicts such admission. Id.; see also Sherman v. Merit Office Portfolio, Ltd., 106 S.W.3d 135, 140 (Tex. App.—Dallas 2003, pet. denied). However, the party who seeks to bind another party to a judicial admission must object to the introduction of contradictory evidence at trial. Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983); see also Sherman, 106 S.W.3d at 140 ("a judicial admission does not excuse the opposing party from having to preserve error").
Appellant did not object to the introduction of evidence by Appellees that contradicted the authenticity of Carl's signature on the will. Consequently, even if Appellees did judicially admit in their live pleading that the signature on the will was Carl's, Appellant did not preserve this sub-issue for review on appeal. See Musick, 650 S.W.2d at 769; Sherman, 106 S.W.3d at 140-41.
Appellant also argues that Ty's testimony that the signature on the will was not his father's signature was conclusory and constituted no evidence that the will was fraudulent. Texas Rule of Evidence 901(b)(2) permits a non-expert to testify that handwriting is genuine based on familiarity with the handwriting that was not acquired for the current litigation. TEX. R. EVID. 901(b)(2). Ty testified that he was familiar with his father's handwriting prior to the last year of his father's life, as well as during the last year of his father's life when his handwriting began to go "downhill." He further testified, as he looked at the purported will, that the signature on the will was not Carl's.
Appellant complains that Ty's testimony with regard to the signature on the will was conclusory because he did not explain why he believed it was not Carl's signature. However, Ty also testified to the authenticity of Carl's signature on several other documents. Under Texas Rule of Evidence 901(b)(3), the trier of fact may determine the authenticity of a document through comparison with a document that the court has found to be genuine. TEX. R. EVID. 901(b)(3). By stipulation in a Rule 11 agreement, the other documents Ty discussed in comparison to the alleged will were admitted as genuine documents that contained Carl's signature. As a result, even if Ty's testimony was conclusory, the members of the jury could have compared the signatures on each document admitted with the signature on the will to determine whether they believed that the signature on the purported will was genuine. See id.
Additionally, Appellant argues that she conclusively proved that Carl signed the will because she provided three disinterested witnesses that testified that Carl signed the will. "Evidence is conclusive only if reasonable people could not differ in their conclusions, a matter that depends on the facts of each case." City of Keller, 168 S.W.3d at 816. Appellant brought three witnesses—Jesse Horelica, Maurina Corley, and Mary Porubsky—to testify to the validity of the purported will. Although each of the witnesses had known Carl for many years, they also had close relationships with Appellant. Further, the witnesses provided conflicting testimony as to where the document was signed.
Only one witness, Porubsky, expressly testified to watching Carl sign the will. Horelica was not positive that he remembered signing the document. Corley testified that she was a notary and had notarized documents for Carl on three occasions. She identified Carl's signature in her notary book, which was admitted into evidence. Corley additionally testified that the signature on the purported will matched Carl's signature. Although Corley testified that the signature on the will matched what she believed to be Carl's signature, the jury could have compared Carl's signatures from her notary book with the signature on the will to determine whether the signatures were the same. See TEX. R. EVID. 901(b)(3). Because the jury could have reasonably believed that Carl's signatures in Corley's notary book were not similar to the signature on the purported will, the jury could have disregarded this witness's testimony. See City of Keller, 168 S.W.3d at 822. In addition, while Porubksy's testimony could be sufficient to support a finding that Carl signed the will, the jury was free to disregard this testimony based on the other evidence presented. See id. Moreover, due to Ty's testimony, Carl's signature was not proven without controversy. Consequently, we do not find that the testimony of these three witnesses conclusively established that Carl signed the will that Appellant sought to probate.
We have reviewed Appellant's arguments that concern the legal sufficiency of the evidence, and we find that each is without merit. The jury, as the rational trier of fact, could have compared the signatures on the different documents, rejected the testimony of the three eyewitnesses, and reasonably concluded by a preponderance of the evidence that the signature on the purported will was not Carl's. See TEX. R. EVID. 901(b)(3); City of Keller, 168 S.W.3d at 822. Therefore, we hold that Appellant did not conclusively establish that Carl signed the 2008 will. Because we find that there was legally sufficient evidence that the signature on the will was not Carl's signature, we overrule Appellant's first issue.
In Appellant's second issue, she argues that Appellees did not have standing to assert a claim against her for fraud on the community. Appellant did not make this argument to the trial court; however, the question of standing is a prerequisite to subject-matter jurisdiction and may be raised for the first time on appeal. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). A party has standing when the party has a "justiciable interest" in the outcome of the suit. Austin Nursing Ctr., 171 S.W.3d at 848. This requires "a real controversy between the parties" in which the controversy "will be actually determined by the judicial declaration sought." Id. at 849 (quoting Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996) (internal quotation marks omitted).
Appellant argues that Appellees did not have standing to assert a claim for fraud on the community because the probate court did not appoint Ty as the administrator of Carl's estate until two months after the jury reached a verdict in this case. Appellant's argument, however, is one based on lack of capacity, not standing. See id. Generally, a personal representative of an estate is the only person who has capacity to sue to recover property belonging to the estate. Id. at 850 (citing Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex. 1971)). As Appellees correctly assert, an heir may have capacity to sue to recover estate property if the heir alleges and proves that there is no administration pending and that administration of the estate is not necessary. Id. at 850-51, n.3 (relying on Shepherd v. Ledford, 962 S.W.2d 28, 31 (Tex. 1998)).
"[A] challenge to a party's capacity must be raised by a verified pleading in the trial court." Id. at 849. Here, Appellant did not challenge Appellees' capacity to assert the fraud on the community claim in the trial court. However, regardless of whether Appellant properly challenged Appellees' capacity to bring the claim, Appellees did not have standing to bring the claim because they did not have a justiciable interest in the community property. The Supreme Court of Texas has held that there is not an independent tort for fraud on the community. Schlueter v. Schlueter, 975 S.W.2d 584, 586 (Tex. 1998). A fiduciary relationship exists between spouses, and fraud on the community arises when a legal or equitable breach of that relationship occurs. In re Marriage of Moore, 890 S.W.2d 821, 827 (Tex. App.—Amarillo 1994, no writ). Fraud on the community is a "deprivation of community assets as opposed to a tort committed against a person or his or her separate property." Schlueter, 975 S.W.2d at 589. Damage to community property such as waste and fraudulent transfer "are claims belonging to the community itself." Chu v. Hong, 249 S.W.3d 441, 444 (Tex. 2008). This conduct is deemed fraud on the community because, although it is not actually fraudulent, it has similar legal effects on the marital relationship as actual fraud. In re Moore, 890 S.W.2d at 827.
In Harper v. Harper, the Fort Worth Court of Appeals was confronted with facts similar to the case before us today. See Harper v. Harper, 8 S.W.3d 782, 783-84 (Tex. App.—Fort Worth 1999, pet. denied). Harper concerned a fraud on the community claim brought by the executor of Dorothy Harper's estate (Dorothy's son) against Dan Harper (Dorothy's husband) and Ruth Campbell (Dorothy's caretaker and Dan's new wife). Id. at 783. The Fort Worth court held that, because the Supreme Court of Texas had previously held that fraud on the community was not an independent tort, the executor of Dorothy's estate could not recover damages from Dan and Ruth for fraud on the community. Id. at 784. The court further held that the theory should not have been submitted to the jury. Id.
We agree with the reasoning of the Fort Worth court. Consequently, we hold that Appellees could not bring a fraud on the community claim against Appellant. Such a claim is generally reserved for divorce proceedings and can be brought only by a party who has an interest in the community property itself. See Chu, 249 S.W. 3d at 444-45 (explaining that claims that involve damage to community property are claims that belong to the community itself and must be included in the trial court's division of community property upon divorce). We acknowledge that a wronged spouse may, in some instances, pursue a claim against the estate for reimbursement of his or her one-half interest in the property disposed of by fraud on the community. See Madrigal v. Madrigal, 115 S.W.3d 32, 35 & n.1 (Tex. App.—San Antonio 2003, no pet.) (noting that, if the surviving spouse can prove that a life insurance policy was purchased with community funds, the beneficiary was a third party, and that the "gift" to the third party was unfair, the surviving spouse has a claim for fraud on the community that can be reimbursed from the deceased spouse's community interest). But see Barnett v. Barnett, 67 S.W.3d 107, 126 (Tex. 2001) (holding that a surviving spouse did not have a claim for fraud on the community when ERISA governed the distribution of the life insurance policy). However, an heir or personal representative of an estate cannot bring such a claim against a surviving spouse. See Harper, 8 S.W.3d at 784. Therefore, we sustain Appellant's second issue.
We acknowledge that TEX. R. APP. P. 41.3 requires us to decide this case based on precedent from the Austin court; however, we have not found a case from the Austin court that addresses this issue. Furthermore, we believe that our holding is in line with the precedent that we have relied on from the Supreme Court of Texas. --------
In Appellant's third issue, she argues that the trial court erred when it admitted two documents that were handwritten by Carl prior to his death. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). We will reverse the decision of the trial court only if it acted arbitrarily, unreasonably, or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Appellant complains that the admission of two documents that Carl handwrote at the time he filed for divorce was error because the documents constituted impermissible hearsay and were prejudicial. These documents noted several acts by Appellant, and others she associated with, that Carl believed were improper and that were the basis of his divorce proceeding. These acts included Appellant committing adultery and Appellant giving community property assets to her children and others without Carl's knowledge. Carl also alleged that Appellant opened credit cards in his name without his knowledge. In addition, Carl asserted that Appellant was a liar, cheat, and a thief.
Even if we were to find that the trial court erred when it admitted these documents over Appellant's objections, we cannot say that such error probably caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a). Appellees represented to the trial court that they were using these documents to support their fraud on the community claim against Appellant. As we have held, Appellees did not have standing to pursue that claim and, thus, that claim should not have been before the jury. Because that claim is no longer at issue, we will look to whether the admission of the handwritten documents caused the rendition of an improper judgment as to the validity of the 2008 will.
Appellant claims that the documents caused the rendition of an improper judgment because the jury disregarded the testimony of the witnesses that attested to Carl's signature on the will. Although the handwritten documents contained several inflammatory statements about Appellant and several people with which she associated, including family members, the documents did not refer to or discuss the three disinterested individuals that testified to the validity of the will. Further, the jury could have compared the signature on the 2008 will with the known signature of Carl, as introduced through other documents during the trial, and could have reasonably determined that the signature on the purported will did not match Carl's known signature. Moreover, Appellees' counsel did not mention the handwritten documents during closing argument; it was Appellant's counsel who reminded the jury, on multiple occasions, about the inflammatory statements. Consequently, we hold that the admission of this evidence did not cause a rendition of an improper judgment regarding the authenticity of the will. See id. We overrule Appellant's third issue.
Appellant's fourth and fifth issues concern possible errors in the jury charge and in the final judgment as to the claim for fraud on the community. Having sustained Appellant's second issue regarding whether Appellees had standing to pursue such a claim, it is not necessary for us to reach the merits of Appellant's fourth and fifth issues. See TEX. R. APP. P. 47.1.
We reverse the judgment of the trial court as to Appellees' claim against Appellant for fraud on the community, and we render judgment that Appellees take nothing on that claim. We affirm the judgment of the trial court in all other respects.
JIM R. WRIGHT
CHIEF JUSTICE March 31, 2016 Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.