Sierad v. Barnett
| Decision Date | 31 May 2005 |
| Docket Number | No. 05-03-00127-CV.,05-03-00127-CV. |
| Citation | 164 S.W.3d 471 |
| Parties | Lee SIERAD And Hartford Casualty Insurance Company, Appellants v. Susan BARNETT, Successor Administrator of Estate of Leon Sierad, Appellee. |
| Court | Texas Supreme Court |
Jeffrey Robert Sandberg, Dallas, for Appellant.
Lee Sierad, Plano, pro se.
Karen Cathey, Karen Cathey, P.C., McKinney, for Appellee.
Before Justices WRIGHT and BRIDGES.1
This case was brought by an estate administrator against the former administrator and Hartford Casualty Insurance Company, which served as the former administrator's surety. Hartford challenges the legal and factual sufficiency of the evidence to support the $180,000 damage award. In eighteen additional issues, Hartford asserts the trial court erred in 1) refusing to sign a "judgment" purportedly rendered earlier in the same proceeding, 2) refusing to enforce a purported rule 11 agreement, 3) awarding damages for the full amount of each bond, 4) taking judicial notice of the content of files in related matters in the underlying probate proceeding, 5) refusing to exclude evidence as a discovery sanction, 6) admitting lay-opinion testimony, 7) admitting hearsay evidence, and 8) admitting documents without proof of authentication. We affirm the trial court's judgment.
Leon Sierad died intestate in June 1996, leaving two daughters, Lee Sierad and Stephanie Sierad. In July 1996, Lee was appointed temporary administrator, and in August 1997 she was appointed permanent administrator. Hartford served as Lee's surety in both capacities, posting a separate bond of $90,000 for each.
Stephanie opposed Lee's appointment as permanent administrator, filing her own application for that post. The matter was set for hearing on May 16, 1997, but at that time, the parties agreed to a two-month delay to try to reach a settlement. The parties announced an interim agreement, which the trial court noted in its docket. Lee's attorney wrote a letter agreement, which essentially stated that Lee would remain rent-free in the home and would receive reimbursement for payments on the mortgage, and Stephanie would have possession of the Mercedes automobile and would insure it at her own expense. The attorneys for the parties signed the letter but never filed it. Some four years later, Hartford found the letter and filed it in this proceeding. It was disputed whether the parties had ever reached agreement on the terms in the letter.
Early on in her term as administrator, Lee filed a preliminary inventory showing the value of the estate as $206,345. Subsequently, Lee let the mortgage payments lapse, and eventually the lender brought a foreclosure proceeding (the "A" proceeding, commenced in November 1998). In January 2000, Stephanie filed this action (the "B" proceeding) against Lee and against Hartford as her surety. She alleged Lee had breached her fiduciary duty by failing to pay the mortgage or to pay rent on the house and failing to provide documentation to Stephanie so that she could register and insure the Mercedes. In March 2000, in the A proceeding, the court signed an order approving foreclosure on the house. In April 2000, Lee sold the house.
Thereafter Lee could not be located. On May 16, 2001, the court ordered Lee removed as permanent administrator, noting her whereabouts were unknown. Susan Barnett was named successor administrator, and Lee was ordered to turn over all estate property to Barnett. On May 25, 2001, a bench trial was held, based on Stephanie's complaints about the house and car. On June 6, 2001, the trial court filed written findings and conclusions, finding that Lee had wasted $3,607, the net proceeds from the sale of the house. Some months later, the trial court denied Hartford's motion to enter judgment on the findings and conclusions related to the proceeding on May 25.
Barnett joined as plaintiff in this proceeding. She pursued locating Lee, which she testified took about a year. After ascertaining the status of assets, Barnett amended the petition, substantially expanding the claims. Stephanie nonsuited her claim. A bench trial was held on December 6, 2002 when the court reopened the proceedings.
The trial court found that from the time Lee qualified as temporary administrator, "Lee immediately began treating the estate's property as her own," in derogation of the rights of others. The court concluded the letter was not a "binding rule 11 agreement," noting that it failed for want of consideration. Because Lee never took the action necessary to ensure Stephanie could use the Mercedes, Lee in turn lost the right to possess the house rent-free. This resulted in a loss in rentals and equity of $62,349, plus prejudgment interest of $24,176. In addition, the court found that "Lee also converted most of the decedent's personal property to her own use, and wasted most of what was left." Losses of personal property totaled $122,711, plus interest of $68, 914. Lee was also held liable for professional fees totaling $64,100. Accordingly, the trial court rendered judgment against Lee for $342,250 and against Hartford for $180,000, the combined maximum amount under the bonds.
Hartford appealed. Although Lee filed a notice of appeal, her attorney has withdrawn and no briefs have been filed on her behalf. Therefore, we dismiss her appeal for want of prosecution. Tex.R.App. P. 38.8(a)(1).
In its eighteenth issue, Hartford argues the evidence is legally and factually insufficient to support either that Lee caused economic loss to the estate or the amount of the damages awarded.
Once assets are traced to a fiduciary, a presumption arises that those assets were in her possession and the burden shifts to the fiduciary to account for the assets. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991). A fiduciary has an ongoing duty to account fully for assets within her trust. Corpus Christi Bank and Trust v. Roberts, 597 S.W.2d 752, 755 (Tex.1980). See Scott v. Taylor, 294 S.W. 227, 231 (Tex.Civ.App.-Amarillo 1927, no writ) (burden on fiduciary to show all expenditures were just, necessary and correct and to turn over remaining assets); Garcia v. Garcia, 878 S.W.2d 678, 680 (Tex.App.-Corpus Christi 1994, no writ) (when fiduciary fails to file proper inventories and accounts, burden on fiduciary to show validity of deductions from assets).
When we review the findings for legal sufficiency, we consider only the evidence and inferences tending to support the finding and disregard all the evidence and inferences to the contrary. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). We uphold the finding if it is supported by more than a scintilla of evidence. Id. When reviewing findings of fact for factual sufficiency, we consider and weigh all of the evidence and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We review challenges to a trial court's conclusions of law as a matter of law. Boyd v. Diversified Fin. Sys., 1 S.W.3d 888, 890 (Tex.App.-Dallas 1999, no pet.).
The trial court found that Lee had wasted or converted estate assets as follows:
1. value of rentals and equity in house: $62,349; prejudgment interest: $24,176
2. value of the vehicles, $54,450
3. unauthorized withdrawals: $8,455
4. Bank of America account: $18,717
5. the Guaranty Federal Bank "estate account": $192
6. bank fees: $330
7. Home Savings account: $2,921
8. insurance claim proceeds: $2,147
9. money order: $999
10. receivables: $14,500
11. household items: $20,000
12. prejudgment interest on loss on household property: $68,914.
Bearing in mind our conclusions on the letter agreement and on evidence issues, as discussed below, we have reviewed the record evidence. Concerning the house, the record shows Lee never paid rent and quit making payments on the mortgage. The testimony of Mark Beaty, the real estate expert, and of Barnett support that the estate lost the value of rental payments (46 months at $1250 per month) and equity in the home (compared to values had Lee timely sold the home), totaling a net loss of $62,349, with prejudgment interest totaling $24,176.
Concerning lost value on the vehicles, the amount of damages was based on Lee's preliminary accounting valuing the vehicles at $65,000 and a final order approving a sale yielding cash proceeds of $7,050. The Mercedes, distributed to Stephanie, was valued at $3,500. The resulting net loss to the estate totaling $54,450 is thus supported by the evidence.
The amount of loss on unauthorized withdrawals on Leon's business account, called the Texwood Sales account, the Bank of America account, the "estate account" at Guaranty Federal Bank, wasteful bank fees, and Home Savings account are all supported by documentary evidence or testimony, or both. The evidence supports the fact that Lee did not account for the disposition of those assets.
Documents and testimony supported that Lee never accounted for $2,147 in insurance proceeds concerning a covered loss on the house. Testimony supported that Leon had a $999 money order in his possession and that Lee did not account for it. The $14,550 in receivables was supported by evidence of a loss with respect to the Texwood Sales account ($7,500), an outstanding loan rendered uncollectible by the limitations having run, and a witness testified to the existence, shortly after Leon's death, of over $7,500 in various receivables.
Concerning the value of household furnishings, three witnesses testified, each of whom had personally seen the furniture and owned furniture of a similar kind. Each gave a value of at least $20,000. Barnett presented calculations to support prejudgment interest on the loss on personal property in the...
To continue reading
Request your trial
-
Graff v. Berry, No. 06-07-00058-CV (Tex. App. 2/20/2008)
...for summary judgment. Souder v. Cannon, 235 S.W.3d 841, 848 (Tex. App.-Fort Worth 2007, no pet.). The commissioners cite Sierad v. Barnett, 164 S.W.3d 471, 481 (Tex. App.-Dallas 2005, no pet.), in support of their proposition that the documents do not have to be attached. The Dallas Court o......
-
Colonial American Cas. and Sur. v. Scherer
...187 S.W.3d 182, 186 (Tex. App.-Fort Worth 2006, no pet.) (affirming attorney's fee award of $8,307 against $10,000 bond); Sierad v. Barnett, 164 S.W.3d 471, 476 (Tex.App.-Dallas 2005, no pet.) (awarding damages and attorney's fees in excess of bond amount, but finding surety liable only to ......
-
Quality Dialysis, Inc. v. Adams, No. 13-05-086-CV (Tex. App. 6/8/2006)
...opinion of a lay-witness is admissible if based on his perception and if his opinion helps in determining a fact in issue); Sierad v. Barnett, 164 S.W.3d 471, 483 (Tex. App.-Dallas 2005, no pet.). Further, in light of other evidence tendered, we cannot conclude that the comment in question ......
-
Bahar v. Lyon Financial Serv. Inc.
...notice of its own records in a cause involving the same subject matter between the same, or practically the same, parties.” Sierad v. Barnett, 164 S.W.3d 471, 481 (Tex.App.-Dallas 2005, no pet.) (quoting Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276 (1961)). Accordingly, we take judi......
-
CHAPTER 4.I. Motion Authorities
...trial court's determination of whether evidence should be admitted before the jury is finding the evidence relevant). Sierad v. Barnett, 164 S.W.3d 471 (Tex. App.—Dallas 2005, no pet.) (when authenticity of evidence is challenged, a trial court must determine preliminary questions of admiss......
-
CHAPTER 8.I. Motion Authorities
...if testimony shows owner is familiar with the market value and owner's opinion is based on that market value). Sierad v. Barnett, 164 S.W.3d 471 (Tex. App.—Dallas 2005, no pet.) (lay witness could testify as to value of property). Barraza v. Koliba, 933 S.W.2d 164 (Tex. App.—San Antonio 199......