Holden v. Holden

• Decision Date: 21 January 2015
• Docket Number: NO. 12–13–00165–CV,12–13–00165–CV
• Parties: Susan Jackson Holden and Terry Holden, Appellants v. Charles Lyle Holden, as the Independent Executor of the Estate of Rosie Eunice Holden, Deceased, Appellee
• Court: Texas Court of Appeals

456 S.W.3d 642

Susan Jackson Holden and Terry Holden, Appellants

v.Charles Lyle Holden, as the Independent Executor of the Estate of Rosie Eunice Holden, Deceased, Appellee

NO. 12–13–00165–CV

Court of Appeals of Texas, Tyler.

Opinion delivered January 21, 2015

John Glenn Meazell, for Appellant.

David R. Weiner, for Appellee.

Panel consisted of Worthen, C.J. and Hoyle, J.

OPINION

James T. Worthen, Chief Justice

Susan Jackson Holden and Terry Holden appeal the trial court's judgment in favor of Charles Lyle Holden, Independent Executor of the Estate of Rosie Eunice Holden, deceased. They raise seven issues on appeal. We affirm in part, and reverse and render in part.

Background

Charles was married to Rosie. Terry is Charles's son from a previous marriage, and Susan is Terry's wife. Charles had a hip replacement in the fall of 2008, and Rosie had a variety of illnesses. In May 2009, Rosie was diagnosed with amyotrophic lateral sclerosis (ALS, also known as Lou Gehrig's Disease ). Susan went to Rosie and Charles's home four to five times a week to provide care for Rosie. On the days that Susan was unable to take care of Rosie, Charles or a hospice organization provided care for her. Between May and November of 2009, Susan was Rosie's primary caregiver.¹

On July 13, 2009, Rosie executed an assignment of an oil and gas royalty interest to Terry. Susan obtained an assignment form, completed it, and presented it to Rosie. Susan and Terry paid nothing for the assignment, and Susan claimed that it was a gift.² On July 17, 2009, Rosie signed a medical power of attorney giving Susan the right to make all of Rosie's healthcare decisions. On August 5, 2009, Rosie executed a statutory durable power of attorney appointing Susan as her agent. That same day, Rosie also executed a revocation of all prior powers of attorney. Susan did not disclose any of these transactions to Charles. She believed that it was not appropriate to disclose the power of attorney because it would have started a family fight.

On August 10, 2009, Susan and Terry had an altercation with Charles concerning the care Susan provided Rosie, specifically that Susan had used too many of Rosie's colostomy bags. During the argument, Charles punched Terry in the face. On August 11, 2009, Susan and Terry went to Rosie and Charles's home to move Rosie to their home.³ Prior to their arrival, Susan and Terry made an agreement and established a plan to remove Rosie from her home. Terry recorded the statutory durable power of attorney at the courthouse because he and Susan were concerned that Charles might not let them in the house. When Susan and Terry arrived, they told Charles for the first time that they were moving Rosie to their home, and revealed that Susan had obtained the power of attorney.⁴ Rosie stated that she did not want to leave her home, but Susan told her she had to go with them.

On August 13, 2009, Susan opened a joint bank account with Rosie at Bank of America, using funds from a joint account held by Rosie and Charles. Susan stated that some of the money in the new account was used to pay Rosie's expenses for clothing, bedding, food, and related items. But she also stated that she and Terry used some of the money to pay for “household expenses to keep us going while we were taking care of her.”

While Rosie stayed with Susan and Terry, Charles told Susan that he wanted to take Rosie home because she wanted to return home with him.⁵ According to Charles, Susan refused, saying, “She's not going anywhere; I've got a power of attorney.” Susan acknowledged that Rosie also mentioned to her that she wanted to return home. According to Susan, hospice and Adult Protective Services would not let Rosie return home.

Rosie's condition deteriorated and she died on November 8, 2009. Charles was appointed the independent executor of Rosie's estate. On September 15, 2010, Charles made a demand that Susan provide an accounting under Texas Estates Code Sections 751.101 through 751.106.⁶ Susan did not respond to the demand, and Charles filed suit as the independent executor of Rosie's estate. In his petition, Charles sought to compel the accounting, to require Susan to return the funds that she obtained from Rosie, to rescind the royalty assignment, and to recover his attorney's fees.

During the bench trial, Susan admitted that she had not provided Charles with an accounting. After the parties rested, closed, and made final arguments, the trial court ordered that Susan provide the accounting within fourteen days.⁷ The trial court also stated as follows:

What the Court's going to do—first of all, the Court wants compliance with 489B [now Texas Estates Code Sections 171.101–.106] in an account—sworn accounting form that's required under the probate code. The accounts may be the raw data for it, but let's get it in a proper format that's sworn to and everything. And when that's done, the Court wants to see that; and I'm going to take the rest of the matter under advisement until I see it.

....

I want an accounting that complies with 489B; and once I see that, I'll rule on your other issues.

Pursuant to the court's order, Susan timely provided the accounting after the trial. The documents included bank account summaries and transaction information. Charles filed a response and written objections to the accounting. Susan and Terry filed no further response and did not ask for a hearing on the accounting. Based on the information before it, the trial court rendered judgment against Susan and Terry awarding $25,587.73 in damages to Charles in his representative capacity, along with $5,000.00 in attorney's fees. At Susan and Terry's request, the trial court issued findings of fact and conclusions of law. This appeal followed.

Documents Not Admitted Into Evidence

In their second issue, Susan and Terry argue that the trial court erroneously considered the accounting and other financial documents, because they were not formally admitted into evidence.

Standard of Review and Applicable Law

“When it clearly appears to be necessary to the due administration of justice, the court may permit additional evidence to be offered at any time; provided that in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.” Tex. R. Civ. P. 270. A trial court's decision to reopen the evidence will be disturbed on appeal only in those cases where it is shown that there has been a clear abuse of discretion. Forrest v. Hanson, 424 S.W.2d 899, 907 (Tex.1968). The trial court's discretion is to be liberally exercised in the interest of justice so that all parties can fully develop their case. Lifestyle Mobile Homes v. Ricks, 653 S.W.2d 602, 604 (Tex.App.–Beaumont 1983, writ ref'd n.r.e.). An appellate court reviews the trial court's decisions based on the evidence in the record before the trial court at the time it acted. Lifeguard Benefit Servs., Inc. v. Direct Med. Network Solutions, Inc., 308 S.W.3d 102, 117 (Tex.App.–Fort Worth 2010, no pet).

To present a complaint for appellate review, the record must show that (1) the complaint was presented to the trial court by a timely request, objection, or motion stating the specific grounds for the desired ruling if the specific grounds are not apparent from the context; and (2) the trial court ruled on the request. Tex. R. App. P. 33.1(a). To preserve a complaint of error in a judgment, a party must inform the trial court of its objection by a motion to amend or correct the judgment, a motion for new trial, or some other similar method. Dai– Chrome Co. v. Brenntag Sw., Inc. , 183 S.W.3d 133, 144 (Tex.App–Dallas 2006, no pet.). Moreover, a motion for new trial is a prerequisite to a complaint on appeal on which evidence must be heard. Tex. R. Civ. P. 324(b)(1).

Discussion

On September 17, 2012, the day of the trial, Susan and Terry provided Charles with information from one of Susan and Terry's joint accounts, a Compass Bank account. Two checks from that account were admitted into evidence, one to reimburse Charles for Rosie's cremation, and one to Charles for a royalty check received by Susan and Terry pursuant to the royalty assignment. Three days after the trial, and in compliance with the court's order, they provided the accounting. Susan and Terry contend that the trial court erroneously relied on the accounting and bank documents because they were received by the court after the close of evidence, are outside the record, and “no testimony was taken in regards to these documents, how the money was spent, who spent such money or what was the intent of the parties.” Without the evidence, their argument continues, there is insufficient evidence to support the trial court's award of $25,587.73.

Charles filed a response to the accounting on September 25, 2012, and a brief in support of his request for judgment on October 16, 2012. To this response, Charles attached a copy of the Compass Bank information Susan and Terry produced at trial. The trial court sent a letter informing the parties of its rulings on January 22, 2013, and signed a formal judgment on February 22, 2013. Susan and Terry filed a request for findings of fact and conclusions of law on March 13, 2013. The trial court signed the findings and conclusions eight days later.

At no time during this period did Susan and Terry file a reply to Charles's response, ask for a hearing, or otherwise challenge Charles's response to the accounting, or his inclusion of the Compass Bank documents. Even after learning of the judgment, Susan and Terry did not file a motion for new trial or otherwise make the trial court aware of their complaints concerning its consideration of this evidence. It is clear from the findings of fact and conclusions of law that the trial court considered the accounting, the supporting documentation, and the Compass Bank documents. The trial court informed the parties prior to the order for an accounting that it would rule on all other issues after it received and...