ACCEPTED
06-15-00030-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/19/2015 3:59:40 PM
DEBBIE AUTREY
CLERK
NO. 06-15-00030-CV
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE SIXTH DISTRICT COURT OF A PPEALS A T PM
10/19/2015 3:59:40
TEXARKANA, TEXAS DEBBIE AUTREY
Clerk
___________________________________________________
LETA YORK
Appellant,
v.
TODD BOATMAN
Appellee.
___________________________________________________
ON APPEAL FROM THE 62ND JUDICIAL DISTRICT COURT,
HOPKINS COUNTY, TEXAS
CAUSE NO. CV 41400, THE HONORABLE WILL BIARD, PRESIDING
___________________________________________________
APPELLANT’S BRIEF
Phil Smith
Attorney at Law
300 Oak Avenue
Sulphur Springs, Texas 75482
ATTORNEY FOR APPELLANT
October 19, 2015
Appellant’s Brief i NO. 06-15-00030-CV
IDENTITY OF PARTIES AND COUNSEL
Parties to the Underlying Litigation
Appellant Appellee
Leta York Todd Boatman
Trial and Appellate Counsel
Phil Smith Larry A. Powers
300 Oak Avenue 200 Jackson Street
Sulphur Springs, Texas 75482 PO Box 877
(903) 439-3000 Sulphur Springs, Texas 75483
(903) 439-3110 (fax) (903) 885-6506
psmith300@hotmail.com (903) 885-1199 fax
pb4us@yahoo.com
Appellant’s Brief ii NO. 06-15-00030-CV
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL………………………………..ii
INDEX OF AUTHORITIES……………………...…………………………v
RECORD ON APPEAL…………………………………..………………. ix
I. STATEMENT OF THE CASE.………………………………….....ix
II. ISSUES PRESENTED……………………………………………...x
III STATEMENT OF FACTS…………………………………………...1
IV. SUMMARY OF ARGUMENTS……..………………………………5
V. ARGUMENT POINT 1 –
The trial court erred in giving title to Appellee because the 1995 deed
in not a valid gift deed from Appellant to Gwendolyn Boatman, Appellee’s
mother and predecessor in title………………………………..……………7
VI. ARGUMENT POINT 2 –
There is no evidence or insufficient evidence to support the trial
court’s finding of fact No. 3, 4, 5, 6, and 8.…………………..………..….30
VII. ARGUMENT POINT 3 –
If the 1995 deed was a valid deed and there was an agreement to deed
the property back, then the deed created a constructive trust in favor of
Appellant, and there was not sufficient notice of a repudiation of the trust so
as to begin the running of the statute of limitations. ………….…………..31
VIII. CONCLUSION …………………………………………….………45
IX. PRAYER…………………………………………………………….45
CERTIFICATE OF SERVICE……………………………………………..47
CERTIFICATE OF COMPLIANCE………………………………………47
Appellant’s Brief iii NO. 06-15-00030-CV
APPENDIX TO APPELLANT’S BRIEF………………………….……....47
Appellant’s Brief iv NO. 06-15-00030-CV
LIST OF AUTHORITIES
Page(s)
Am.Jur. 1978, § 233 36
BLACK'S LAW DICTIONARY 712 (5th ed. 1981) 11
Statutes
Tex. Bus. & Com. Code Ann. § 26.01 (2002) 13
Texas Family Code § 3.001 8
Texas Family Code § 3.002 8
Tex. Fam. Code Ann. § 5.001 14,15,16
Texas Property Code § 112.001 29
Texas Property Code § 112.0015 29
Texas Constitution
Tex. Const. art. VII, § 22 (1845) 15
Tex. Const. art. XVI, § 50 interp. commentary (1993) 15
Tex. Const. art. XVI, § 50(b) 15
Cases
Texas Cases
Akin v. Akin, 649 S.W.2d 700, 704 20
(Tex. App.--Fort Worth 1983, writ ref'd n.r.e.)
Associated Indemnity Corp v. CAT Contracting, Inc., 37
Appellant’s Brief v NO. 06-15-00030-CV
918 S.W.2d 580 (Tex.App.-Corpus Christi 1996)
Benavides v. Benavides, 218 S.W. 566 (Tex. App. 1920) 22,23,27
Caddell v. Lufkin Land & Lumber Co., 234 S.W. 138 13
(Tex.App. 1921)
Christian v. Walker, 381 S.W.2d 675, 678 12
(Tex. Civ. App. -- Texarkana 1964, no writ)
Conner v. Johnson, 2004 Tex.App. LEXIS 9633 19,22,23,26
Consolidated Gas & Equipment, Co. v. Thompson, 36
405 S.W.2d 333 (Tex. 1966)
Courseview, Incorporated v. Phillips Petroleum Co., 42
158 Tex. 397, 312 S.W.2d 197 (Tex. 1957)
Crim Truck & Tractor Co. v. Navistar International 37
Transportation Corp., 823 S.W.2d 591 (Tex. 1962)
Dorman v. Arnold, 932 S.W.2d 225, 228 11,19
(Tex. App.—Texarkana 1996, no writ)
Dulak v. Dulak, 513 S.W.2d 205, 209 (Tex. 1974) 21
Edwards v. Pena, 38 S.W.3d 191, 197 10,11
(Tex. App.—Corpus Christi 2001, no pet.)
Geldard v. Watson, 214 S.W.3d 202 14
(Tex.App.-Texarkana 2007)
Gomer v. Davis, 419 S.W.3d 470 10
(Tex.App.-Houston 1st District 2013)
Green v. Glass, 2007 Tex.App. LEXIS 8362 Houston 20
Grimsley v. Grimsley, 632 S.W.2d at 177 12,20
Appellant’s Brief vi NO. 06-15-00030-CV
Kostelnik v. Roberts, 680 S.W.2d 532 35,36
(Tex.App.-Corpus Christi 1984)
Langford v. Shamburger, 417 S.W. 2d 438, 445 41,42
(Tex. Civ. App.--Fort Worth 1967, writ ref'd n.r.e.)
Little v. Smith, 943 S.W.2d 414, 425 (Tex. 1997) 39
(Enoch, J., concurring)
Lopez v. Lopez, 271 S.W.3d 780, 788 10
(Tex. App.—Waco 2008, no pet.)
McAnally v. Texas Co., 124 Tex. 196, 204, 26
76 S.W.2d 997, 1000 (1934)
McConathy v. McConathy, 1997 Tex.App. LEXIS 1592 Dallas 20
Meduna v. Holder , 2003 Tex. App. LEXIS 10568 12
(Tex.App.- Austin 2003)
Miller v. Huebner, 474 S.W.2d 587 (Tex.Civ.App. -- 36
Houston [14th Dist.] 1971, writ ref'd. n.r.e.)
Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985 (Tex. 1948) 36
Molnari v. Palmer, 890 S.W.2d 147 21
(Tex.App.-Texarkana 1994)
Nipp v. Broumley, 285 S.W.3d 552, 558 10
(Tex. App.—Waco 2009, no pet.)
Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 44
(1960)
Pick v. Bartel, 659 S.W.2d 636 13
(Tex 1983)
Richardson v. Laney, 911 S.W.2d 489 7,26,34
(Tex.App.-Texarkana 1995)
Appellant’s Brief vii NO. 06-15-00030-CV
Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963) 21
Slusser v. Union Bankers Ins. Co., 72 S.W.3d 713 39
(Tex.App.- Eastland 2002)
Sorsby v. State, 624 S.W.2d 227 25
(Tex.App.-Houston [1st] 1981)
Soto v. First Gibraltar Bank, FSB San Antonio, 11,20
868 S.W.2d 400, 403
(Tex. App.—San Antonio 1993, writ ref'd)
Southwest Tex. Pathology Assocs. V. Roosth, 27 S.W.3d 204 37
(Tex.App.-San Antonio 2000, pet.dism’d)
Texas Bank & Trust Co. v. Moore, 595 S.W.2d 502 37
(Tex. 1980)
Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 249-50 41
(Tex. 2002)
Texas Land Mortgage Co. v. Cohen, 25
138 Tex. 464, 159 S.W.2d 859 (1942)
Thigpen v. Locke, 363 S.W.2d 247 (Tex. 1962) 36
Thompson v Dart, 746 S.W.2d 821 19,22
(Tex.App.-San Antonio 1988)
Treuil v. Treuil, 311 S.W.3d 114 41
(Tex.App.-Beaumont 2009)
Troxel v. Bishop, S.W.3d 290, 297 10,11
(Tex. App.—Dallas 2006, no pet.)
Woodworth v. Cortez, 660 S.W.2d 561, 564 11
(Tex. App.—San Antonio 1983, writ ref'd n.r.e.)
Appellant’s Brief viii NO. 06-15-00030-CV
RECORD ON APPEAL AND APPENDIX OF EXHIBITS
The record on appeal consists of a one-volume Clerk’s Record, a three
volume Reporter’s Record, with a Master Index as Volume 1 and the trial
testimony Transcript as Volume 2. Volume 3 is the trial exhibits. The
Clerk’s Record will be cited by page number (i.e. “Clerk’s file page __”).
The Reporter’s Record will be cited by page number and line(s) (i.e. RR2, p.
1, lines 2-4).
STATEMENT OF THE CASE
This is a suit for title to 153.185 acres of land between Appellant York
(Appellee’s grandmother) and Appellee. The trial was to the court, and the
trial court found that title was in the Appellee, and that “appropriate statute
of limitations” had cut off all claims for title presented by the Appellant.
Appellant’s Brief ix NO. 06-15-00030-CV
ISSUES PRESENTED
POINT ONE: Appellee based his claim to title on his contention that
the 1995 deed was a gift to his mother, with no agreement to deed the
property back. Therefore, the trial court erred in giving title to
Appellee because the 1995 deed in not a valid gift deed from Appellant
to Gwendolyn Boatman, Appellee’s mother and predecessor in title.
POINT TWO: There is no evidence or insufficient evidence to
support the trial court’s finding of fact No. 3, 4, 5, 6, and 8.
POINT THREE: If the 1995 deed was a valid deed and there was an
agreement to deed the property back, then the deed created a
constructive trust in favor of Appellant, and there was not sufficient
notice of a repudiation of the trust so as to begin the running of the
statute of limitations.
Appellant’s Brief x NO. 06-15-00030-CV
STATEMENT OF FACTS
This case is a trespass to try title action for title to a 153.185 acre tract of
land in Hopkins County, Texas. The trial court granted judgment for the Appellee
that he has title to the 153.185 acres of land and that Appellant has an equitable life
estate on a 4 acre tract contained within the 153.185 acre tract. The court also
found that the applicable statute of limitations barred all of Appellant’s claims for
title, except for the life estate in the 4 acres (FFCL #3, Clerk’s file page 234).
Appellant has lived on the 4 acre tract which contains her house since 1977
(RR2, p. 163, line 25; Exhibit 22, RR3, page 241). The 4 acre tract was purchased
by Appellant and her husband from Appellant’s parents in 1967 and conveys to
Appellant and her husband a life estate with remainder to their only daughter
Gwendolyn Boatman, Appellee’s mother. (Exhibit 2, RR3, page 149). Appellee is
Appellant’s grandson. Appellant claims title to the 153.185 acres through a 1985
partition deed between her and her sister that conveys the 153.185 acres to
Appellant as her separate property (Exhibit 3, RR3, page 151) and did not except
the 4 acre life estate deed. Appellant and her husband had claimed the entire
153.185 acres as their homestead since 1985.
Actually, there are four deeds involved in this case. The first is the 1967
deed for 4 acres purchased by Appellant York and her husband from Appellant’s
parents. (Exhibit 2, RR3, page 149) The second is the 1985 deed whereby
Appellant’s Brief 06-15-00030-CV Page 1
Appellant and her sister partitioned their parent’s land after the parents died
intestate (Exhibit 3. RR3, page 151). The third is an August 10, 1995 deed from
Appellant to her daughter Gwendolyn Boatman for the 153.185 acres and whose
description includes the 4 acres conveyed in the 1967 deed and does not except this
deed from the conveyance (Exhibit 4, RR3, page 154). This deed was signed 16
days before Appellant’s husband died, and the entire 153.185 acres conveyed was
their homestead at the time of his death (FFCL #1, Clerk’s file page 233). All of
the court’s findings of fact claim that this deed was dated August 8, 1995.
The fourth is a 2003 gift deed of the 153.185 acres conveying it from
Gwendolyn Boatman back to the Appellant (Exhibit 7, RR3, page 174). This deed
was revoked and never delivered (Exhibit 12, RR3, page 189). The trial court
found that the 1995 deed was valid and was subject to the life estate in favor of
Appellant granted in the 1967 deed and the homestead interest of Appellant’s
husband Henry A. York, who did not join in the deed (FFCL #1 Clerk’s file page
233).
Appellant claimed at trial that she had deeded the 153.185 acres in trust to
her daughter in 1995 with an agreement with her daughter that anytime Appellant
wanted the property back that her daughter would deed it back to her (RR2, page
168, lines 22-24; p. 172, lines 6-20; p. 174, line 20 to p. 175, line 9; p. 194, line 22
to p. 195, line 20). She claimed that the property was conveyed upon her
Appellant’s Brief 06-15-00030-CV Page 2
daughter’s advice and urging at the time of her husband’s last illness, whereby her
daughter told her that if she did not get the property out of her name that the
government would take it to pay for her husband’s nursing care (RR2, page 171,
lines 19-25). The evidence showed that Appellant relied heavily upon the advice
of her daughter and that a very close relationship existed between the two. Even
the Appellee admitted this at trial (RR2, page 43, line 4 to p. 44, line 17; p. 173,
line 25 to p. 174, line 19; p. 230, lines 6-14).
Appellee claimed at trial, however, that the 1995 deed was a gift deed from
Appellant to her daughter, Gwendolyn Boatman, and that there was never any
agreement to deed the property back (RR2, p. 239, lines 11-16). When asked at
trial whether there was an agreement for his mother to deed the property back to
Appellant, he testified, “Never. Never was there for her to deed the property
back.” (RR2, page 239, lines 11-16). Appellee therefore claims title to the
property on the basis of a gift of the property to his mother, and that the property
became his mother’s sole and separate property by gift from the time of the 1995
deed, and that he now owns full title as the only devisee of Gwendolyn Boatman’s
will (FFCL #9, Clerk’s file page 233-234).
The Court did make a finding of fact that Gwendolyn Boatman did inform
her mother that she was claiming ownership of the 153.185 acres of land shortly
after the death of her husband by reason of the August 8, 1995 deed (FFCL #4,
Appellant’s Brief 06-15-00030-CV Page 3
Clerk’s file page 233). Appellant did admit in a deposition that she had asked for
her property back soon after her husband died in 1995 and that her daughter had
refused (Exhibit 21, RR3, page 231-232). However, Appellant explained in
testimony that her daughter had never actually told her that she would never give it
back, but that her daughter just kept putting it off, telling her that she would do it
later (RR2, p. 174, line 20 to p. 175, line 9; p. 194, line 22 to p. 195, line 20). The
evidence did show that her daughter did make plans to give the property back
when she executed a gift deed back to her mother. A copy of the gift deed from
Gwendolyn Boatman back to Appellant in 2003 is located at Exhibit 7, RR3, page
174. Gwendolyn decided not to record this deed however, and later revoked it (Ex.
12, RR3, page 189). The Court made another finding of fact which stated that in
2004 and 2005 that Gwendolyn Boatman informed the Appellant that she claimed
ownership of the 153.185 acres of land by reason of the August 8, 1995 deed
(FFCL #8, Clerk’s file page 234). Appellant testified many times that Gwendolyn
never did fully refuse to give her the property back and just kept putting her off
about it (RR2, p. 168, lines 22-24; p. 170, lines 7-18; p. 172, lines 6-20; p. 174,
line 20 to p. 175, line 9;).
The pleadings of Appellant York placed the title in question in this lawsuit.
Appellee’s only active pleadings were his First Amended Original Answer and
Supplemental pleading for reimbursement. No counterclaim for title was filed by
Appellant’s Brief 06-15-00030-CV Page 4
Appellee, and the only defenses pled by him in his answer were (1) statute of
limitations, (2) estoppel, (3) waiver, (4) laches, and (5) res judicata. Appellee has
no pleadings for adverse possession.
SUMMARY OF THE ARGUMENT
The evidence clearly shows that Appellee maintains that the property was
the separate property of his mother, Gwendolyn Boatman and that she received the
conveyance from her mother as a gift with no strings attached. Appellee must
therefore show that Appellant made a valid gift to his mother. Tracking the
elements of a valid gift, the Appellant will show that there was no valid gift and
therefore no valid delivery of the property in the first place. In the 1995 deed from
Appellant to Gwendolyn Boatman, there was no valid description of a present
interest conveyed because the description did not exclude the life estate in the 4
acres and did not exclude the homestead interest of Appellant’s husband which
Appellant could not convey. Also there is no evidence of any donative intent on
the part of Appellant because Appellant testified that she only deeded the property
to protect it from the government. Also, in the deed there was no passing of an
immediate interest in the property because the life estate of the 4 acres and
Appellant’s husband’s homestead interest did not immediately pass. Also, there
was no immediate change of possession of the property because Appellant and her
husband continued to live on the property, and the evidence will show that
Appellant’s Brief 06-15-00030-CV Page 5
Gwendolyn Boatman did not change the tax rolls into her name until 9 or 10 years
after the alleged gift was made. Also the Appellant continued to live in the house,
keep her cattle on the property, and collected the rents from a rent house on the
property. Further, there was no evidence of immediate acceptance of the property
by Gwendolyn Boatman for the same reasons. The evidence shows that
Gwendolyn Boatman did not immediately take dominion and control of the entire
property described in the gift, and the elements of a valid gift do not exist and the
conveyance amounts to an attempt to give a gift in the future. Therefore there was
no valid gift and there can be no running of the statute of limitation, except title by
adverse possession.
Second, several of the findings of fact and conclusions of law by the trial
court incorrectly state that title began to run from August 8, 1995. The date of the
deed is August 10, 1995 and therefore all of these findings of fact are not
supported by the evidence.
Third, if there was a valid deed and transfer of possession of the property,
the conveyance was made in trust for the benefit of Appellant, with Gwendolyn
Boatman having a fiduciary relationship with her mother, the Appellant. Because
of this fiduciary relationship, no proper notice of repudiation of the trust agreement
was ever communicated clearly enough to Appellant so as to begin the running of
the statute of limitations for repudiation of a trust. Therefore, any trust relationship
Appellant’s Brief 06-15-00030-CV Page 6
ceased to exist with the death of Gwendolyn Boatman, and the trust deed should be
set aside.
ARGUMENT
POINT ONE: Appellee based his claim to title on his contention that the
1995 deed was a gift to his mother, with no agreement to deed the property
back. Therefore, the trial court erred in giving title to Appellee because the
1995 deed in not a valid gift deed from Appellant to Gwendolyn Boatman,
Appellee’s mother and predecessor in title.
The Appellee totally stakes his claim to title on his contention that the 1995
deed is a valid gift deed. Appellant would show that the 1995 deed is not a valid
gift deed and is therefore void.
The trial court made the following finding of fact: “On August 8, 1995,
Plaintiff (Appellant) conveyed 153.185 acres of land by general warranty deed to
her daughter, Gwendolyn Boatman. The conveyance was subject to the homestead
interest of Henry A. York who did not join in the deed. The conveyance did not
contain any exceptions or reservations of title.” (Clerk’s file p. 233)
The deed itself calls for consideration (Exhibit 4, RR3, page 154), but none
ever passed, and Appellee asserts that Gwendolyn Boatman and Appellee have
always claimed this property to be Gwendolyn Boatman’s separate property since
August 10, 1995. In Richardson v. Laney, 911 S.W.2d 489 (Tex.App.-Texarkana
Appellant’s Brief 06-15-00030-CV Page 7
1995), this court states, “When property is deeded from a parent to a child or
children, it is presumed that a gift was intended. This presumption is rebuttable,
but the person seeking to rebut the presumption must prove a lack of donative
intent by clear and convincing evidence at the trial court level.”
In 1995, Ms. Boatman was married to Gene Boatman and had a community
property home that she jointly owned with him (RR2 p. 226, lines 22-24).
Gwendolyn Boatman and Gene Boatman were never divorced and were married at
the time of the 1995 deed and at her death (RR2 p.23, lines 7-14). Separate
property is property acquired during the marriage either by gift or inheritance
(Texas Family Code § 3.001). Any property that is acquired during the marriage
that is not separate property is community property (Texas Family Code § 3.002).
If the 153.185 acres was not acquired by gift, then it would be community
property.
Gwendolyn Boatman acquired this property during the marriage by deed, not
by inheritance. Appellee relies on the following facts to show that the property
was his mother’s separate property. The 1995 deed states that it is her separate
property (Exhibit 4, RR3, page 154). During his mother’s divorce proceeding,
which was never completed, she claimed it as separate property (Exhibits 6, 11, 14
RR3, pages 159, 188, 197). The unrecorded 2003 gift deed states that the property
is her separate property (Exhibit 7 RR3, page 174). Therefore Gwendolyn
Appellant’s Brief 06-15-00030-CV Page 8
Boatman admits that she did not purchase the property because all property
purchased during the marriage is presumed to be community property. Therefore,
the property had to be acquired by gift. If not, it is community property and her
husband Gene Boatman still owns his community one-half.
Also, Appellant York makes no mention of any money being paid for the
deed, and states that the only reason for the deed was to protect the land from the
government (RR2 p. 171 line 17 to p. 172 line 5; p. 168 lines 22-24). Witness
Gene Boatman testified that he was in the room with both Appellant and his wife
Gwendolyn Boatman when Appellant York talked about putting the property in
Gwendolyn’s name, and that the deed was given because Gwendolyn Boatman told
her mother that she could lose the land if she didn’t get it out of her name and that
Gwendolyn would deed the property back to Appellant York anytime that
Appellant wanted it back (RR2, p. 36, lines 6-17).
Appellee Boatman testified that he acquired full title to the property by
inheritance because he was the only devisee of his mother Gwendolyn’s will
(Exhibit 17, RR3, page 200, 202). He testified that he did not have to ask
Appellant York for permission to build his barn/house or make changes to the
property because he owned the property outright with no rights at all by Appellant.
This means that Appellee Boatman is claiming that his mother Gwendolyn was
Appellant’s Brief 06-15-00030-CV Page 9
claiming full title as her separate property, and not merely a one-half interest in the
property had it been community property.
Gift of realty law shows no valid gift
The law on gift of realty is clear. There must be a valid deed; there must be
donative intent of a present interest; there must be valid delivery of the property;
and valid acceptance. The case of Gomer v. Davis, 419 S.W.3d 470 (Tex.App.-
Houston 1st District 2013) clearly states the law of gift:
“A gift is a voluntary transfer of property to another made gratuitously and
without consideration. Lopez v. Lopez, 271 S.W.3d 780, 788 (Tex. App.—Waco
2008, no pet.). To establish the existence of a valid inter vivos gift, the Appellant
must show (1) that the donor intended to make a gift; (2) delivery of the property;
and (3) acceptance of the property by the donee. Nipp v. Broumley, 285 S.W.3d
552, 558 (Tex. App.—Waco 2009, no pet.); Edwards v. Pena, 38 S.W.3d 191, 197
(Tex. App.—Corpus Christi 2001, no pet.). The Appellant establishes the requisite
donative intent by, among other things, "evidence that the donor intended an
immediate and unconditional divestiture of his or her ownership interests and an
immediate and unconditional vesting of such interests in the donee." Nipp, 285
S.W.3d at 559 (emphasis in original); Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex.
App.—Dallas 2006, no pet.)
Appellant’s Brief 06-15-00030-CV Page 10
"[T]o be a gift in praesenti [at the present time], 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." Until the donor
has absolutely and irrevocably divested herself of the title, dominion, and control
of the subject of the gift, she has the power to revoke the gift. Edwards, 38 S.W.3d
at 197; see also Troxel, 201 S.W.3d at 296 ("All dominion and control over the
property must be released by the owner."). The donee does not have ownership of
the subject of the gift until complete ownership has been transferred from the
donor to the donee. Edwards, 38 S.W.3d at 197. An inter vivos gift must be
absolute and not open for future reconsideration. Soto v. First Gibraltar Bank, FSB
San Antonio, 868 S.W.2d 400, 403 (Tex. App.—San Antonio 1993, writ ref'd); see
also Dorman v. Arnold, 932 S.W.2d 225, 228 (Tex. App.—Texarkana 1996, no
writ) (holding that, as matter of law, Appellant did not show present donative
intent because donor intended for property to remain his until his death);
Woodworth v. Cortez, 660 S.W.2d 561, 564 (Tex. App.—San Antonio 1983, writ
ref'd n.r.e.) ("A gift may generally not be made to take effect in the future since a
mere promise to give is unenforceable without consideration.")”.
"In praesenti" means at the present time; it is used in opposition to in futuro.
BLACK'S LAW DICTIONARY 712 (5th ed. 1981). Thus, to be a gift in praesenti,
the donor must, at the time he makes it, intend an immediate divestiture of the
Appellant’s Brief 06-15-00030-CV Page 11
rights of ownership out of himself and a consequent immediate vesting of such
rights in the donee. Christian v. Walker, 381 S.W.2d 675, 678 (Tex. Civ. App. --
Texarkana 1964, no writ).
In Grimsley v. Grimsley, 632 S.W.2d at 177, the court states,
“The three elements which constitute a gift are (1) donative intent, (2) delivery of
the property, and (3) acceptance of the property. All dominion and control over
the property must be released by the owner. Id. Appellant, the one claiming the
gift, has the burden of establishing these elements. Id.”
The 1995 deed is not a valid gift deed.
So, as to the elements of a gift, there first must be a valid deed. The 1995
deed has technical problems which make it void as a valid present gift because the
deed description in this deed does not correctly describe the interest conveyed.
The deed does not except the 4 acre 1967 deed owned by Appellant York and her
husband from the land described. It also does not except the homestead interest of
Appellant’s husband. The trial court’s findings of fact and conclusions of law
specifically say that the 1995 deed was subject to these two interests (Clerk’s file
page 233-234).
A valid deed must have a clear description of property to be conveyed in the
deed. If the deed description of the interest sought to be conveyed is unclear, the
deed is void. Meduna v. Holder , 2003 Tex. App. LEXIS 10568 (Tex.App.- Austin
Appellant’s Brief 06-15-00030-CV Page 12
2003) “Where a deed purports to convey land, but describes the tract only by quantity
and as being part of a larger parcel, with nothing to identify what specific portion of
the larger parcel is intended to be conveyed, the deed is void for uncertainty of
description. The statute of frauds requires that all conveyances of real property be in
writing and signed by the party to be charged. Tex. Bus. & Com. Code Ann. § 26.01
(2002). Furthermore, to satisfy the statute of frauds the writing must furnish within
itself, or by reference to some other existing writing, the means or data by which the
particular land to be conveyed may be identified with reasonable certainty.
Pick v. Bartel, 659 S.W.2d 636 (Tex 1983) “It is well settled that in order
for a conveyance or contract of sale to meet the requirements of the Statute of
Frauds, it must, insofar as the property description is concerned, furnish within
itself or by reference to other identified writings then in existence, the means or
data by which the particular land to be conveyed may be identified with specific
certainty”.
Caddell v. Lufkin Land & Lumber Co., 234 S.W. 138 (Tex.App. 1921) “Men
are presumed to be able among themselves to make deeds expressive of their
intentions, and, if they fail to do so, or to furnish the means by which their
intention can be determined, it would be a usurpation of authority for courts to
undertake to make deeds for them. The intention of the makers of the instrument,
Appellant’s Brief 06-15-00030-CV Page 13
as gathered from the instrument as a whole, in the light of extrinsic circumstances
consistent with what is there expressed, must control.”
Appellee Boatman admits that the 1995 deed description is not correct
because it does not exclude the 4 acre 1967 deed property, even though Exhibit 22
shows that the 4 acre tract is included within the 153.185 acre description.
Appellee Boatman testified that his mother told him that Appellant York had the 4
acres for life. Therefore, Appellee Boatman’s admission proves that the
description in the 1995 deed is not correct. It does not except the outstanding 4
acres life estate owned by Appellant and her husband Henry A. York.
Furthermore, the trial court’s finding of fact and conclusion of law awards
Appellant a 4 acre life estate on the basis of equitable relief because the deed did
not contain any exceptions or reservations of title for the 4 acre 1967 deed (Clerk’s
file page 233-234).
Also, a valid deed also must not violate the homestead laws of the State of
Texas. Section 5.001 of the Texas Family Code states, “Whether the homestead is
the separate property of either spouse or community property, neither spouse may
sell, convey, or encumber the homestead without the joinder of the other spouse
except as provided in this chapter or by other rules of law.” The trial court’s
finding of facts clearly states that at the time of the 1995 deed, “the conveyance
Appellant’s Brief 06-15-00030-CV Page 14
was also subject to the homestead interest of Henry A. York who did not join in the
deed. (FFCL #1)
For homestead property, both husband and wife must sign. If one spouse
does not sign, the deed is not for a full present interest in the property and full title
is not immediately effective. The case of Geldard v. Watson, 214 S.W.3d 202
(Tex.App.-Texarkana 2007) states:
“A spouse's homestead right in Texas predates statehood. Tex. Const. art.
XVI, § 50 interp. commentary (1993). Spousal homestead rights have been
constitutionally guaranteed since the first constitution of the State of Texas.
Tex. Const. art. VII, § 22 (1845). The constitution currently provides that an
owner or claimant of the property claimed as homestead may not sell or
abandon the homestead without the consent of each owner and the spouse of
each owner, given in such manner as may be prescribed by law. Tex. Const.
art. XVI, § 50(b). The Texas Family Code makes it clear that the
requirement of the joining of both spouses to a conveyance of the homestead
is mandatory, irrespective of the community or separate property nature of
the realty constituting that homestead. Tex. Fam. Code Ann. § 5.001 (2006).
Whether the homestead is the separate property of either spouse or
community property, neither spouse may sell, convey, or encumber the
homestead without the joinder of the other spouse except as provided in Tex.
Appellant’s Brief 06-15-00030-CV Page 15
Fam. Code Ann. ch. 5 or by other rules of law. Tex. Fam. Code Ann. §
5.001.
“The signature of one spouse to a lien on or a conveyance of the
homestead, even if separate property, may not act to the detriment of a non-
signing spouse who would benefit from the homestead right. One spouse's
conveyance of her separate property family homestead, without the joinder
of the other spouse, is not void as to the conveying spouse. It is, however,
inoperative against the continuing homestead claim of the non-joining
spouse. A conveyance by a husband, not joined by his wife, of the
homestead property, is merely inoperative while the property continues to be
a homestead, or until such time as the homestead may be abandoned, or the
deed ratified in accordance with law.
“Ratification of the conveyance of the homestead by the non-joining
spouse requires a formal recognition of the conveyance through execution of
an instrument.
“The homestead right constitutes an estate in land. This estate is
analogous to a life tenancy, with the holder of the homestead right
possessing the rights similar to those of a life tenant for so long as the
property retains its homestead character. The homestead estate is a vested
Appellant’s Brief 06-15-00030-CV Page 16
interest. The homestead estate has the effect of reducing the underlying
ownership rights to something akin to remainder interests.”
The 1995 deed to the entire 153.185 acre tract does not exclude the 4 acre
tract that was purchased during the marriage of Appellant and her husband in its
description of the land conveyed. It also does not exclude the homestead interest
of Henry A. York and the property was subject to the homestead right of Henry
York. It is a violation of Henry York’s homestead rights in the 153.185 acres that
the 1995 deed did not provide that his homestead rights were protected. The deed
is absolutely void as to Henry York’s interest since he was still alive and did not
join in the deed. Therefore, part of the interest described in the 153.185 deed’s
description of the property conveyed could not be presently conveyed and is
incorrect and defective. The deed also did not convey a full present possessory
interest of all the property described in the deed at the time of its execution on
August 10, 1995 because Henry York’s homestead interest could not be conveyed
by his wife before his death and the life estate of the 4 acres was still in effect.
Because Appellant’s husband was alive, the only interest that could have been
conveyed to Gwendolyn Boatman by the 1995 deed was “something akin to a
remainder interest”, not a full possessory interest. Appellant is also still alive
today.
Appellant’s Brief 06-15-00030-CV Page 17
The 1995 Deed Attempts a Gift of a Future Interest
Also, there is a distinction between this case and the Geldard case. The
Geldard case did not address the issue of the validity of a gift deed. The non-
signing spouse did not question the validity of the deed, but only questioned the
enforcement of the warranty right against the non-signing spouse. This case
involves an alleged gift deed. If this were a contract situation, it would be true that
the deed signed by the signing spouse could become operative against the signing
spouse by contractual enforcement or estoppel. However, a donee cannot force the
donor to complete a gift that was never completed. There is no contractual right to
enforce a gift and the donor may revoke an uncompleted gift at any time. Here the
gift was not completed at the time the deed was given, and the alleged gift deed is
therefore void. The 1995 deed amounts to an attempt to give a gift of a future
interest.
Donative Intent of a Present Interest
Second, the evidence shows that there was no intent by Appellant York to
make an immediate divestiture of her rights of ownership and a consequent
immediate vesting of such rights in Gwendolyn Boatman. The evidence is
uncontroverted that the life estate of Appellant and her husband Henry and their
present possession of the 4 acres did not immediately vest in Gwendolyn Boatman.
The evidence is also uncontroverted that Henry York’s homestead interest in the
Appellant’s Brief 06-15-00030-CV Page 18
entire 153.185 acres did not immediately vest in Gwendolyn Boatman. Also,
Appellant never released dominion and control over any of the property. Her
testimony and these uncontroverted facts that she never released immediate
dominion and control over the property is clear and convincing evidence that she
never had the donative intent to make a present gift. Because of the homestead
violation and outstanding life estate in the 4 acres, the 1995 deed amounted to an
attempt at a gift of a future interest.
In order for a gift deed to be valid, the donor must possess at the time of the
execution of the deed a donative intent of a present interest. The donor must, at the
time he makes the gift, intend an immediate divestiture of the rights of ownership
out of himself and a consequent immediate vesting of such rights in the donee.
All dominion and control over the property must be released by the owner.
Thompson v Dart, 746 S.W.2d 821 (Tex.App.-San Antonio 1988); Conner v.
Johnson, 2004 Tex.App. LEXIS 9633.
The Intent of the donor is the principal issue in determining whether a gift
was made. Dorman v. Arnold, 932 S.W.2d 225 (Tex.App.-Texarkana 1996). In
the Dorman case the evidence showed that the owner intended for the property to
remain his until his death. Ownership was clearly retained, and the Court stated
that, as a matter of law, present donative intent was not shown.
Appellant’s Brief 06-15-00030-CV Page 19
A gift of a future interest cannot complete a gift. It must be an immediate
divestiture of the rights of ownership. A gift may not be made to take effect in the
future. McConathy v. McConathy, 1997 Tex.App. LEXIS 1592 Dallas; Green v.
Glass, 2007 Tex.App. LEXIS 8362 Houston. Soto v. First Gibraltar Bank, FSB,
868 S.W.2d 400 (Tex.App.-San Antonio 1993) “An inter vivos gift must be
absolute, not open for future reconsideration. Akin v. Akin, 649 S.W.2d 700, 704
(Tex. App.--Fort Worth 1983, writ ref'd n.r.e.). The donor must give up dominion
and control over the property. Grimsley v. Grimsley, 632 S.W.2d 174, 177-78
(Tex.App.-Corpus Christi 1982 writ ref’d)
There is other evidence that shows that Appellant did not have a donative
intent to make a present gift. The handwritten statements and deeds signed by
Gwendolyn Boatman corroborate the fact that Gwendolyn knew that the property
should go back to her mother Appellant York. The Exhibit 7 (RR3, page 174) gift
deed from Gwendolyn to her mother shows that she intended to give the property
back to her mother. The Exhibit Q97 (RR3, page 127) on 10-14-03 states, “I’m
concerned about transferring the Deed on Big daddy’s land back to her. I’ve
placed a call to my atty to ask him but wasn’t able to talk to him. Sec’y was going
to find out.” The Exhibit Q98 (RR3, page 128) on 10-15-03 says, “Still worrying
about the Deed transfer.” The Exhibit Q99 (RR3, page 129) on 10-16-03 says,
“Still no word on deed transfer. This afternoon I called atty’s office again. The
Appellant’s Brief 06-15-00030-CV Page 20
sec’y called back later and said that J. said, “Leave it alone. He can’t touch it. Can
do more harm than good by changing it.” The Exhibit Q1 (RR3, page 29) and
Exhibit P 4 (RR3, page 240) note in Gwendolyn’s handwriting shows that the
intent to transfer the property was not a gift. It was to protect the property from
foreclosure by the nursing home. The handwritten note of Gwendolyn states,
“Deed over to Gwendolyn and maintain life estate on house and 1 acre. Leta can
live on it as long as Leta lives. Can have a tax freeze. Johnny Ramey said not do
this because nursing home can take an amt to maintain living there for their part of
money.” The Exhibit 11 (RR3, page 188) (letter from Gwendolyn Boatman to Jay
Garrett) states, “I wanted the land to go back to my mother.”
Exertion of Undue Influence on Donative Intent
There is some evidence that Gwendolyn Boatman used undue influence on
Appellant York during a critical time of illness of her husband just before he died
to scare her into putting the property into Gwendolyn’s name. In the case of
Molnari v. Palmer, 890 S.W.2d 147 (Tex.App.-Texarkana 1994) the Court stated,
“In deciding whether there was undue influence in executing a deed, the court
considers three factors: (1) the existence and exertion of an influence; (2) whether
the influence operated to subvert or overpower the grantors' minds when they
executed the deed; and (3) whether the grantors would not have executed the deed
but for the influence. Dulak v. Dulak, 513 S.W.2d 205, 209 (Tex. 1974); Rothermel
v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963).”
Appellant’s Brief 06-15-00030-CV Page 21
While there may not be enough evidence to prove undue influence, there is
certainly evidence that Appellant York was under stress at the time that the deed
was executed and that her daughter Gwendolyn Boatman was applying pressure for
Appellant to get the property out of her name in order to protect it from the
government to satisfy nursing home costs. This evidence should go to the issue of
whether or not the Appellant had a donative intent to make a present gift of her
property to her daughter Gwendolyn Boatman, and considering the influence used,
the fiduciary relationship between Appellant and her daughter, and the above
arguments, there clearly was no donative intent to make a present gift.
Must be a valid delivery
Third, for a valid gift of conveyance of land, there must be a present
interest validly conveyed, and the act of delivery and acceptance must be
mutual and concurrent. A completed delivery of a gift has two elements: (1) The
instrument must be placed within the control of the grantee, and (2) It must be
done by the grantor with the intention that it shall become immediately operative
as a conveyance. Benavides v. Benavides, 218 S.W. 566 (Tex. App. 1920) 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. Thompson v Dart, 746 S.W.2d 821 (Tex.App.-San Antonio 1988); Conner
v. Johnson, 2004 Tex.App. LEXIS 9633.
Appellant’s Brief 06-15-00030-CV Page 22
As earlier stated, to show donative intent, one must show that the donor has
relinquished all dominion and control over the property. Conner v. Johnson,
2004 Tex.App. LEXIS 9633. In Benavides v. Benavides, 218 S.W. 566 (Tex.
App. 1920), the Court stated,
“To operate as a transfer of title to land, there must be a delivery of
the deed, and every act in connection therewith fails unless such delivery is
made. And the delivery must be made with the intention that it shall take
effect as a conveyance, and is usually a question of fact and cannot in most
cases be declared as a matter of law. The fact that a deed is found in the
possession of a grantee will raise the presumption that it was delivered to
and accepted by him, but the presumption, like any other, may be rebutted,
and where the land after the date of the deed was assessed to the grantor
during his life and he paid the taxes, and the grantor always retained the
possession and control of the land as before the deed was executed, it has
been held that these circumstances rebutted any presumption of delivery
from the deed being found in possession of the grantees.
“The act of delivery and acceptance of a deed must be mutual and
concurrent, and no acceptance at a subsequent time would give validity to
the deed, unless there is proof that the grantor had agreed to a subsequent
acceptance.
Appellant’s Brief 06-15-00030-CV Page 23
“To complete a delivery in its legal sense two elements are essential.
The instrument must not only be placed within the control of grantee, but
this must be done by the grantor with the intention that it shall become
operative as a conveyance.”
The evidence shows that the 1995 deed was recorded by Gwendolyn
Boatman, but the recording was the only thing concerning the property over which
Gwendolyn Boatman assumed dominion and control. The only thing delivered at
the time of the 1995 purported gift deed was a piece of paper, not total dominion
and control of the property. The homestead interest and 4 acre community
property life estate was not accounted for, the homestead interest of Henry York in
the 153.185 acre tract was not accounted for, and there was never any change of
possession of the property. Appellant York continued to live there until the present
time, collected her rents from the rent house, and continued to have her cattle on
the property until 2007 (RR2, p. 184, line 15 to p. 185, line 4). She also testified
that she continued to pay the taxes until 2010 (RR2, p. 169, lines 3-23; p. 168, line
19 to page 169, line 2) . No dominion or control of the property was given at the
time of the deed in 1995, and therefore there was no valid delivery of the gift at the
time it was allegedly made in 1995. Appellee testified that Gwendolyn Boatman
filed for a homestead exemption on the property in 2005 (RR2, p. 224, lines 18-
19). Appellee testified that he was unsure when Gwendolyn Boatman put the taxes
Appellant’s Brief 06-15-00030-CV Page 24
in her name (RR2, p. 224, lines 22-23). The only evidence that Gwendolyn
Boatman put the taxes in her name showed that she did so in 2004 or 2005, some
9-10 years after the execution of the deed, which is prima facie example that
present dominion and control of the land was not transferred in 1995 (RR2, p. 224,
lines 22-23; RR3, Exhibit 19, page 218; Exhibit 20, page 219).
In order for a gift to be effective, the law requires an “an immediate
divestiture” of the rights of Appellant York out of herself and a “consequent
immediate vesting of such rights” in her daughter Gwendolyn Boatman. Because
of the homestead violation and failure to except the life estate on the 4 acres, there
was no immediate vesting or divestiture of the entire 153.185 acres of land, and
factually no immediate dominion or control of the property by Gwendolyn
Boatman. There was no immediate delivery of a present interest and no valid gift.
Acceptance of the Property by the Donee
Fourth, in order to complete a gift, there must be acceptance by the grantee,
and the grantee must assume complete dominion and control over the property.
The only thing delivered in this case was the paper deed, not dominion and control
of the land or house, at the time of the alleged gift.
In Sorsby v. State, 624 S.W.2d 227 (Tex.App.-Houston [1st] 1981) the Court
stated that normally, the recording of a deed is prima facie evidence of acceptance
by the grantee. Texas Land Mortgage Co. v. Cohen, 138 Tex. 464, 159 S.W.2d 859
Appellant’s Brief 06-15-00030-CV Page 25
(1942); McAnally v. Texas Co., 124 Tex. 196, 204, 76 S.W.2d 997, 1000 (1934).
However, it is a rebuttable presumption. In Richardson v. Laney, 911 S.W.2d 489
(Tex.App.-Texarkana 1995), the court states, “When property is deeded from a
parent to a child or children, it is presumed that a gift was intended. This
presumption is rebuttable, but the person seeking to rebut the presumption must
prove a lack of donative intent by clear and convincing evidence at the trial court
level.” It goes on to say, “Where the grantor does not receive any consideration for
the transfer of real property and did not intend to make a gift, a resulting trust for
the grantor's benefit arises even though the agreement is not in writing as required
by the Texas Trust Act. When an express trust fails, the law applies a resulting
trust with the beneficial title vested in the grantor, or in case of his death, his estate
and devisees.”id.
In Conner v. Johnson, 2004 Tex.App. Lexis 9633, the Fort Worth Court of
Appeals stated, “A presumption of gift arises, if a parent delivers possession,
conveys title, or purchases property in the name of a child. However, this is a
rebuttable presumption that the opponent must show by clear and convincing
evidence at trial.”
Here, there was no delivery of possession of the property itself. The only
thing that changed hands was the deed and subsequent recording by the daughter
Gwendolyn Boatman. There was no change of tax rolls until 2005 (Exhibit 20,
Appellant’s Brief 06-15-00030-CV Page 26
RR3, page 218), and Gwendolyn Boatman did not apply for homestead exemption
on the property until March 30, 2004 (RR3, Exhibit 19, page 218). Appellee
testified that his mother filed for the homestead exemption in 2005 (RR2, p. 224
lines 18-19). She was not even living on the property at the time she applied for
the homestead exemption. Her attorney listed her address as 2004 CR 2310 (the
home of Gene Boatman, her husband) on December 22, 2004 (Exhibit 10, RR3,
page 187 and Exhibit 8, RR3, page 177). Gwendolyn Boatman’s letter in her own
handwriting dated May 27, 2005 lists her address as 208 Glover Street, Sulphur
Springs, Texas. At the most, the evidence shows that Gwendolyn Boatman was
moving around from women’s shelters in Paris to Appellee’s house in California,
and occasionally staying with her mother in Appellant’s home on the 153.185 acres
the subject of this lawsuit after Gwendolyn’s breast cancer surgery in 2004 (RR2,
p. 59, line 15 to p. 60, line 8) . Gwendolyn Boatman also owned another piece of
property in Hopkins County where she and her husband lived, which was her
homestead at the time of the application for homestead on the 153.185 acres (RR2,
p. 67, lines 4-8). There was no immediate dominion or control over the property at
the time of the alleged gift in 1995, and therefore no valid acceptance of the gift.
No Acceptance at a Subsequent Time Gives Validity
In Benavides v. Benavides, 218 S.W. 566 (Tex. App. 1920), the Court stated,
“The act of delivery and acceptance of a deed must be mutual and concurrent, and
Appellant’s Brief 06-15-00030-CV Page 27
no acceptance at a subsequent time would give validity to the deed, unless there is
proof that the grantor had agreed to a subsequent acceptance.
Statute of Limitations
If the deed is void, no gift was made and no cause of action for return of the
property could accrue for purposes of starting the limitations period, except for the
acquiring of title by adverse possession by Gwendolyn Boatman and Appellee
Boatman. However, Appellee did not plead adverse possession and cannot use this
as a defense. Also he did not present evidence at trial of his acquiring title by
adverse possession.
No trust property created because no possession changed hands.
If the 1995 deed is invalid, no real property was ever placed in the
possession of Gwendolyn Boatman, and therefore no trust was created because no
trust property was ever given to the trustee. The only thing in her possession
concerning the 153.185 acre property was the 1995 paper deed that she recorded.
Appellant Leta York continued to live in her house and had her cattle on the
property until 2007. Gwendolyn Boatman did not live on the property, and all
cattle placed on the property by her or her son Appellee Boatman were placed
there with Appellant’s permission. Appellee Boatman testified that Appellant gave
him permission to place cattle on the property in 1992 before he went into the Air
Force (RR2, p. 221, line 6 to p.222, line 2). It was after his mother’s death and the
Appellant’s Brief 06-15-00030-CV Page 28
probate proceedings that Appellee Boatman moved onto the property and began to
treat it as his own.
A trust cannot be created unless there is trust property.
Appellant would show the Court that unless property is placed in the hands
of a trustee, no trust can be created. Therefore, for a constructive trust to have
been created, the 1995 deed must be held to be valid, and possession of the
property must be judged to have changed hands from Appellant into her daughter
Gwendolyn Boatman. Section 112.001 of the Texas Property Code states, “A trust
may be created by: (2) a property owner’s inter vivos transfer of the property to
another person as trustee for the transferor or a third person”, and Section 112.003
of the Texas Property Code states, “Consideration is not required for the creation
of a trust.” However, Section 112.005 of the Texas Property Code states, “A trust
cannot be created unless there is trust property.”
Conclusion as to Gift Deed
The 1995 deed is not a valid gift deed. Therefore, if the gift deed is invalid,
no title ever passed and no possession of the land ever changed hands. Before
her death, Gwendolyn Boatman never tried to oust her mother and never took
possession of the land (RR2, p. 185, lines 5-12). Only after Gwendolyn died in
2012 did Appellee Boatman move onto the property and build a barn/house and
claim the land as his own (RR2, p. 175, line 22 to p. 176, line 17; p. 182, line 24 to
Appellant’s Brief 06-15-00030-CV Page 29
p. 184, Line 7)). Therefore, statute of limitation questions are not at issue here
because there was no valid conveyance of the property, and the 1995 deed is void
and unenforceable.
POINT TWO: There is no evidence or insufficient evidence to support the
trial court’s finding of fact No. 3, 4, 5, 6, and 8.
The trial court’s finding of fact Nos. 4, 5 and 8 shows that the 1995 deed
was dated August 8, 1995. Exhibit 4 entered into evidence shows that the deed
was dated August 10, 1995 (Clerk’s file page 154). Appellee’s attorney even
admitted that the deed was signed on August 10, 1995 (RR2, p. 188, lines 2-13).
Therefore there is no evidence to support these findings of fact.
The trial court’s finding of fact No. 3 shows that Henry A. York died on
August 22, 1995. Appellant testified that Henry died on either August 20, 1995 or
August 26, 1995 (RR2, page 173, lines 17-24; page 187, line 21 to p. 188, line 13).
This is the only testimony concerning the death of Henry A. York. There is no
evidence to support the trial court finding of fact No. 3.
There is no evidence or insufficient evidence to support the trial court’s
finding of fact No. 6. Appellee’s attorney questioned Appellant and got her to
admit that she had lived on the property from the date the deed was signed up until
Appellant’s Brief 06-15-00030-CV Page 30
the time of trial (RR2, p. 189, lines 11-14). Appellee testified that his mother had
told him that Appellant had the right to live on the 4 acres for the rest of her life
(RR2, p. 215, lines 1-6). He further testified that he had never had any indication
from his mother or anyone else that wanted his grandmother off the property and
that it has always been that Appellant was to live on the 4 acres (RR2, p. 252, line
25 to p. 253, line 3). Also, for 3 months after his mother died, Appellee collected
the rent from a rent house on the 4 acre tract, but stopped collecting the rent when
Appellant objected (RR2, p. 180, lines 2-15). All of these actions are actions not
consistent with Appellee’s exercising all the rights of title and ownership of the full
153.185 acres since the death of Gwendolyn Boatman through the date of trial.
POINT THREE: If the 1995 deed was a valid deed and there was an
agreement to deed the property back, then the deed created a constructive
trust in favor of Appellant, and there was not sufficient notice of a repudiation
of the trust so as to begin the running of the statute of limitations.
Appellee Boatman denies that a constructive trust was created by the 1995
deed. He claims that he has full title through the 1995 deed and says that there was
never any promise or agreement between Appellant and Appellee’s mother to deed
Appellant’s Brief 06-15-00030-CV Page 31
the property back (RR2, p. 239, lines 11-16). This argument leaves Appellee with
the assertion that the 1995 deed was a gift deed as argued above.
Witness Gene Boatman testified that he was in the room with both Appellant
and his wife Gwendolyn Boatman when Appellant York and Gwendolyn talked
about putting the property in Gwendolyn’s name, and that the deed was given
because Gwendolyn Boatman told her mother that because of the nursing home
bills for Appellant’s husband she could lose the land if she didn’t get it out of her
name. Gene Boatman further testified that his wife Gwendolyn stated that she
would deed the property back to Appellant York anytime that Appellant wanted it
back (RR2, p. 37, line 15 to p. 39, line 23). Gene Boatman further testified that he
had many conversations through the years with Gwendolyn when she
acknowledged that she was going to deed the property back to Appellant York
(RR2, p. 39, line 24 to p. 40, line 5; p. 58, line 8 to p. 59, line 14; p. 67, line 25 to
p. 68, line 8).
Although the trial court did not respond to Appellant’s request for additional
findings of facts and conclusions of law filed on May 1, 2015, three days before
the court signed its findings of fact and conclusions of law on May 4, 2015, the
trial court’s findings of fact and conclusions of law do state that Appellant’s claims
as set forth in her pleadings are barred by the applicable statute of limitations. This
finding of bar by statute of limitations presupposes that a cause of action accrued.
Appellant’s Brief 06-15-00030-CV Page 32
If the 1995 deed was a gift deed, no causes of action could accrue. There is no
cause of action for failing to return a valid gift. Therefore, the court would have
had to find that a cause of action did accrue for some breach of a duty.
The court made a finding that the testimony of Gene Boatman was not
credible. However, even considering the testimony of only Appellant Leta York,
there is ample evidence that there was an agreement between her and Gwendolyn
Boatman to return the property when Appellant wanted it returned. Further, there
is much evidence from the writings of Gwendolyn Boatman that she was
struggling with whether or not she should put the property back in her mother’s
name. The Exhibit 7 (RR3, page 174) gift deed from Gwendolyn to her mother
shows that she intended to give the property back to her mother. The Exhibit Q97
(RR3, page 127) on 10-14-03 states, “I’m concerned about transferring the Deed
on Big daddy’s land back to her. I’ve placed a call to my atty to ask him but
wasn’t able to talk to him. Sec’y was going to find out.” The Exhibit Q98 (RR3,
page 128) on 10-15-03 says, “Still worrying about the Deed transfer.” The
Exhibit Q99 (RR3, page 129) on 10-16-03 says, “Still no word on deed transfer.
This afternoon I called atty’s office again. The sec’y called back later and said that
J. said, “Leave it alone. He can’t touch it. Can do more harm than good by
changing it.” The Exhibit Q1 (RR3, page 29) and Exhibit P 4 (RR3, page 240)
note in Gwendolyn’s handwriting shows that the intent to transfer the property was
Appellant’s Brief 06-15-00030-CV Page 33
not a gift. It was to protect the property from foreclosure by the nursing home.
The handwritten note of Gwendolyn states, “Deed over to Gwen and maintain life
estate on house and 1 acre. Leta can live on it as long as Leta lives. Can have a
tax freeze. Johnny Ramey said not do this because nursing home can take an amt
to maintain living there for their part of money.” The Exhibit 11 (RR3, page 188)
(letter from Gwendolyn Boatman to Jay Garrett) states, “I wanted the land to go
back to my mother.”
Constructive Trust Created
If the deed was valid and there was the agreement to deed the property back,
case law shows that a constructive trust was created for the benefit of Appellant
York. As stated earlier, in Richardson v. Laney, 911 S.W.2d 489 (Tex.App.-
Texarkana 1995), the court states, “When property is deeded from a parent to a
child or children, it is presumed that a gift was intended. This presumption is
rebuttable, but the person seeking to rebut the presumption must prove a lack of
donative intent by clear and convincing evidence at the trial court level.” It goes
on to say, “Where the grantor does not receive any consideration for the transfer of
real property and did not intend to make a gift, a resulting trust for the grantor's
benefit arises even though the agreement is not in writing as required by the Texas
Trust Act. When an express trust fails, the law applies a resulting trust with the
Appellant’s Brief 06-15-00030-CV Page 34
beneficial title vested in the grantor, or in case of his death, his estate and
devisees.”Id.
The case of Kostelnik v. Roberts, 680 S.W.2d 532 (Tex.App.-Corpus Christi
1984) presents almost the same situation as does the present case before this Court.
In the Kostelnik case, Appellee testified that, before they were moved into the
convalescent home, she and her husband were told by Thomas Kostelnik "that we
couldn't have any property or anything" at Stevens Convalescent Home and that,
"if we did go into Stevens, everything we had would be taken away from us."
Appellee further testified that, regarding their property, Thomas Kostelnik
suggested that she and her husband "put it all in his name, and then Stevens
wouldn't get it away from us" and that it was upon that suggestion that "we agreed
to let Tom keep our money and everything for us" until the time "when Bob got
well, that everything would be in his name, if we got well, he would turn it back to
us."
The Kostelnik Court further stated, "A constructive trust arises where a
conveyance is induced on agreement of a fiduciary or confidant to hold in trust
for a reconveyance or other purpose, where the fiduciary or confidential
relationship is one upon which the grantor justifiably can and does rely and where the
agreement is breached, since the breach of the agreement is an abuse of the
confidence, and it is not necessary to establish such a trust to show fraud or intent not
Appellant’s Brief 06-15-00030-CV Page 35
to perform the agreement when it was made." Mills v. Gray, 147 Tex. 33, 210 S.W.2d
985 (Tex. 1948) at p. 988, citing 54 Am.Jur. 1978, § 233. Such confidential
relationships may arise not only from technical fiduciary relationships, such as
attorney-client, trustees cestui que trust, partner and partner, etc., but may arise
informally from moral, social, domestic or purely personal relationships. Thigpen v.
Locke, 363 S.W.2d 247 (Tex. 1962); Miller v. Huebner, 474 S.W.2d 587
(Tex.Civ.App. -- Houston [14th Dist.] 1971, writ ref'd. n.r.e.). Also, the confidential
relationship must exist apart and prior to the transaction made the basis of this suit.
Consolidated Gas & Equipment, Co. v. Thompson, 405 S.W.2d 333 (Tex. 1966);
Miller v. Huebner, 474 S.W.2d 587 (Tex. Civ.App. -- Houston [14th Dist.] 1971, writ
ref'd. n.r.e.).
The two differences between our present case and the Kostelnik case is that in
the Kostelnik case there was no question raised as to the validity of the deed in
question, and the property actually did change hands.
Fiduciary Relationship
The evidence is clear that Gwendolyn Boatman had a fiduciary relationship
with her mother Appellant York. Before her husband Henry died, Appellant
depended on Gwendolyn for everything. She helped with his medicine, paid her bills,
was on her bank account, supplied groceries, helped Appellant care for her step-father
Henry, sat with her step-dad when Appellant had to go out, and was the confidant and
Appellant’s Brief 06-15-00030-CV Page 36
advisor to her mother. She was Appellant’s only child and heir (RR2, p. 173, line 25
to p. 174, line 19). Appellee admitted in his testimony that Appellant and his mother,
her daughter, were close and Appellant depended on her and trusted her (RR2, p. 230,
lines 6-14). Gene Boatman testified that Appellant and her daughter, his wife, had a
100% trust relationship and they trusted each other totally (RR2, p. 43, line 4 to p. 44,
line 17).
Mother and daughter relationships are not automatically fiduciary relationships,
although spouses owe a fiduciary duty to each other. Southwest Tex. Pathology
Assocs. V. Roosth, 27 S.W.3d 204 (Tex.App.-San Antonio 2000, pet.dism’d). Mother
and daughter would be a relationship where the court would look to the facts. Courts
sometimes find a fiduciary duty based on informal relations, especially where this
relationship is based on a high degree of trust, influence, or confidence. Crim Truck
& Tractor Co. v. Navistar International Transportation Corp., 823 S.W.2d 591 (Tex.
1962); Texas Bank & Trust Co. v. Moore, 595 S.W.2d 502 (Tex. 1980). A fiduciary
relationship may arise either as a result of dominance on the part of one or weakness
and dependence on the part of the other. Associated Indemnity Corp v. CAT
Contracting, Inc., 918 S.W.2d 580 (Tex.App.-Corpus Christi 1996)
Appellant Leta York had a fiduciary relationship with her daughter Gwendolyn
Boatman before the final illness of Appellant’s husband and Gwendolyn’s step-father.
Appellant was even more dependent upon her daughter during the last few weeks of
Appellant’s Brief 06-15-00030-CV Page 37
her husband’s life, and there was definitely a fiduciary relationship 16 days before his
death when Gwendolyn convinced her mother to deed the property over into
Gwendolyn’s name upon Gwendolyn’s urging that the government would take the
property if Appellant did not get it out of her name.
Breach of Fiduciary Duty
If the Court finds a Constructive Trust, then Gwendolyn Boatman by reason
of the trust relationship and because of her personal position of trust with her
mother during the last illness of her step-father would have a fiduciary relationship
with her mother. Clearly repudiating the trust relationship between Gwendolyn
Boatman and Appellant would have breached Gwendolyn Boatman’s fiduciary
duty to Appellant York. However, a breach of Gwendolyn’s fiduciary duty would
occur when Gwendolyn absolutely refused to deed the property back and told this
to the Appellant or the Appellant should have known, with the exercise of
reasonable diligence, of her injury. The notice should be “plain, strong and
unequivocal.” The evidence clearly shows in this case that no plain, strong and
unequivocal repudiation was ever made known to Appellant, and a therefore cause
of action for breach of fiduciary duty or repudiation of the trust ever accrued.
Limitations – inherently undiscoverable
The Statute of Limitations for breach of fiduciary duty is 4 years from the
date of discovery by Appellant York of Gwendolyn Boatman’s breach of fiduciary
Appellant’s Brief 06-15-00030-CV Page 38
duty (see CPRC Section 16.004). The discovery rule applies for Fiduciary Duty
Breach. In the case of Slusser v. Union Bankers Ins. Co., 72 S.W.3d 713
(Tex.App.- Eastland 2002) the Court stated, “The supreme court categorized
fiduciary duty cases under the discovery rule, but the court held that the injuries
from a breach of fiduciary duty are presumed to be inherently undiscoverable.
see Little v. Smith, 943 S.W.2d 414, 425 (Tex. 1997)(Enoch, J., concurring).
Because of this presumption, breach of fiduciary duty cases are treated like fraud
cases in terms of deferral of the cause of action; the issue is when the Appellant
knew or should have known, with the exercise of reasonable diligence, of his or
her injury.
The question in this case is therefore, “When should an ordinary 75-95 year-
old woman taking care of her husband in his last illness and depending on her only
daughter through the years know or should have known, with the exercise of
reasonable diligence, that Gwendolyn Boatman was absolutely refusing to give her
the property back and totally repudiating the agreement Appellant thought they
had. Some deference should be given for a 90 year-old. Appellant is sharp, but
she is still advanced in age. Even the criminal law in effect today makes
allowances for increased punishment for taking advantage of an elderly person.
Appellant trusted her daughter, and her daughter kept telling her that she
would give the land back later when she got around to it. At no time does the
Appellant’s Brief 06-15-00030-CV Page 39
evidence show that Gwendolyn Boatman told the Appellant outright in plain,
strong, and unequivocal terms that she was not going to give her the property back.
The Appellant and Gwendolyn Boatman went to the tax office together in 1996
and arranged for the land to have an agricultural tax exemption (see Gwendolyn
Boatman’s own handwriting on the envelope shown as Exhibit P3, RR3, page
239). Yet, Gwendolyn Boatman did not apply for a homestead exemption for
herself on the property until March 30, 2005 (see Exhibit 19, RR3, page 218).
Appellant did not even know that Gwendolyn Boatman changed the tax rolls in
2005 to reflect that she owned the property (Exhibit 20, RR3, page 219). The first
time she knew that someone was claiming the property as their own was after
Gwendolyn died in 2012, and Appellee Boatman moved onto the property in 2012
and began telling her that he could move her off if he wanted to (RR2, p. 175, line
22 to p. 176, line 3). It was right after this that Appellant filed suit in January
2013.
Appellant testified that she did not know that the tax records had been changed
until after Gwendolyn’s death (RR2, p. 168, line 19 to p. 169, line 2). Appellant
would give the money to Gwendolyn to pay the taxes each year, even though the tax
record reflected that Gwendolyn was paying the taxes (RR2, p. 169, lines 3-23; p.
196, line 10 to p. 197, line 13). There was no other evidence in the entire trial as to
Gwendolyn putting the property in her name on the tax rolls other than in 2005.
Appellant’s Brief 06-15-00030-CV Page 40
Appellee testified that he was not sure when Gwendolyn put the property in her name
on the tax roll (RR2, p. 224, line 22-23).
We do know that there was a struggle mentally for Gwendolyn Boatman as to
whether she should put the property back into her mother’s name. See the 2003 Gift
deed and later Recission [sic] of Gift Deed dated December 31, 2004 (Exhibit 12,
RR3, page 189). Why would Gwendolyn Boatman have an attorney make out and
hold a gift deed back to her mother? Why would she not at that time just make out the
deed to her son Todd?
Notice Required
The notice of breach required to be given by a fiduciary trustee to the
beneficiary must be “plain, strong and unequivocal” and it must be “brought home
to the beneficiary”. In the case of Treuil v. Treuil, 311 S.W.3d 114 (Tex.App.-
Beaumont 2009), the Court stated, “Under the common law, the statute of
limitations generally does not begin to run on a claim against the trustee until the
trustee repudiates the trust and notifies the beneficiary”. See Langford v.
Shamburger, 417 S.W. 2d 438, 445 (Tex. Civ. App.--Fort Worth 1967, writ ref'd
n.r.e.), disapproved of on other grounds by Tex. Commerce Bank, N.A. v. Grizzle,
96 S.W.3d 240, 249-50 (Tex. 2002); The repudiation must be “plain, strong, and
unequivocal . . . open[,]” and “to be sufficient and effective must have been
brought home to the beneficiary.” Langford, 417 S.W. 2d at 445. The date a
Appellant’s Brief 06-15-00030-CV Page 41
beneficiary learns the trustee has taken possession of trust property is not the date a
claim against the trustee accrues, nor is it the date limitations begin to run. Only in
exceptional circumstances should limitations run in favor of a silent trustee.
Langford v. Shamburger, 417 S.W. 2d 438, 445 (Tex. Civ. App.--Fort Worth 1967,
writ ref'd n.r.e.)
“The correct rule in this connection is well stated in 54 A.L.R. 2d, § 2 at P. 23:
The authorities are generally well agreed that for a trustee's repudiation of an express
trust to be sufficient to set the statute of limitations in motion in his favor and against
the beneficiary, the repudiation must be plain, strong, and unequivocal. . . . Generally
speaking, it must be an open repudiation, and to be sufficient and effective must have
been brought home to the beneficiary." Langford v. Shamburger, 417 S.W. 2d 438,
445 (Tex. Civ. App.--Fort Worth 1967, writ ref'd n.r.e.)
In connection with this issue of when the statute of limitations begins to run,
the Langford court. id. Page 445 quoted from the Courseview case: “We are not here
dealing with an arm's length transaction. The fiduciary relationship must be taken into
account in determining whether the beneficiary exercised the requisite degree of
diligence.” Courseview, Incorporated v. Phillips Petroleum Co., 158 Tex. 397, 312
S.W.2d 197 (Tex. 1957).
It should be noted that there is no evidence that anyone ousted the Appellant
from the use and enjoyment of her property until after Gwendolyn Boatman died.
Appellant’s Brief 06-15-00030-CV Page 42
Therefore, there was no “plain, strong, and unequivocal” notice to Appellant that
Gwendolyn Boatman was claiming Appellant’s land and repudiating their
agreement to hold Appellant’s property in trust.
Appellee testified at trial that the following were the ways his mother gave
notice to everyone that she was claiming full title to the property. “She went and
paid the taxes, and everyone assumed that it was her property.” (RR2, p. 227, lines
7-11). He also testified that her notice consisted of recording a deed, putting cattle
on the land, living on the property, and receiving mail there (RR2, p. 230, line 18
to p. 231. Line 22). He also testified however, that Appellant had given him
permission to put cattle on the property in 1992 before he went into the Air Force
(RR2, p. 221, line 6 to p. 222, line 2).
In summary, there is no evidence of any plain, strong and unequivocal
notice given by Gwendolyn Boatman to Appellant York to put her on notice that
Gwendolyn had totally repudiated the trust and was never going to give the
property back to Appellant York. Therefore the statue of limitations never began
to run against Appellant York during Gwendolyn’s lifetime. After Gwendolyn
died in 2012, Appellee Boatman did give unequivocal notice to Appellant that he
was claiming her land, and she filed suit in January 2013. Gwendolyn Boatman
died on April 22, 2012 and any trust relationship between her and the Appellant is
ended (RR2, p. 203, lines 8-17) and the deed should be declared void.
Appellant’s Brief 06-15-00030-CV Page 43
Unclean Hands
The Appellee cannot claim the doctrine of unclean hands here. He has not
been harmed by any attempt by Appellant or his mother to prevent the government
from taking the property for debt. “Regardless of the truthfulness of appellants'
allegations that appellee defrauded the State of Texas and of appellees' possible
participation in the alleged questionable dealings, appellants are not in a position to
assert the "clean hands" doctrine. "The party to a suit, complaining that his opponent
is in court with 'unclean hands' because of the latter's conduct in the transaction out
of which litigation arose, or with which it is connected, must show that he himself has
been injured by such conduct, to justify the application of the principle to the case.
The wrong must have been done to the Appellee himself and not to some third party."
Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960).”
Also, there is evidence of unusual, questionable influence and suggestions to
Appellant on the part of the Appellee. After Gwendolyn Boatman died and the
Appellee moved in with Appellant, he convinced her to cash out her $30,000 CD
from the bank and let him hide it in her wall (RR2, p. 177, line 7 to p. 178, line 8)
Appellant’s Brief 06-15-00030-CV Page 44
CONCLUSION
1. The 1995 deed was not a valid gift deed and should be declared void.
Then this Court should declare that clear title to the 183.185 acre tract is vested in
the Appellant.
2. If the Court does not declare that the 1995 deed is void, the Court should
declare that the 1995 deed created a constructive trust relationship between the
Appellant and Gwendolyn Boatman and that the statute of limitation has not run on
a breach of fiduciary relationship between Appellant and Gwendolyn Boatman or
breach of the trust agreement. Since the trust relationship has ended with the death
of Gwendolyn Boatman, the 1995 deed should be declared void and title to the
property confirmed in the Appellant.
3. If the Court decides that the statute of limitations have run, then Appellee
only owns a one-half interest in the land, since his mother’s interest would have
been acquired during the marriage and would be community property since it was
not acquired by gift, devise or descent.
PRAYER
Appellant prays that this Court will declare that the 1995 deed from
Appellant to Gwendolyn Boatman was not a valid gift of the 153.185 acre tract of
land and that the deed is void. Appellant further prays that this Court will set aside
Appellant’s Brief 06-15-00030-CV Page 45
the findings of fact and conclusion of law as requested, and that if this Court does
find that there was a valid deed, that this Court will find that the conveyance
created a constructive trust in favor of Appellant and that adequate notice of a
repudiation of that trust was not given to Appellant and that any statute of
limitations for repudiation of the trust has not run and that the trust relationship has
ceased with the death of Gwendolyn Boatman. Accordingly, the deed should be
set aside and title quieted in the name of Appellant for the 153.185 acres of land.
If the Court finds that the statute of limitations have run, Appellant requests that
this Court declare that Appellee only owns a one-half interest in the land since the
property would have been acquired during the marriage of Gwendolyn Boatman to
her husband Gene Boatman.
Respectfully submitted
/PHIL SMITH/
Phil Smith, Attorney for Appellant
Appellant’s Brief 06-15-00030-CV Page 46
CERTIFICATE OF SERVICE
I certify that a true copy of the above was served on each attorney of record
or party in accordance with the TEXAS RULES OF CIVIL PROCEDURE on October 19,
2015.
/PHIL SMITH/
PHIL SMITH
CERTIFICATE OF COMPLIANCE
I certify that this Appellant’s brief contains 11, 492 words as counted by
Microsoft Word program.
/PHIL SMITH/
PHIL SMITH
APPENDIX TO APPELLANT’S BRIEF
Exhibit A – Trial Court Judgment
Exhibit B – Trial Court’s Findings of Fact and Conclusions of Law
Exhibit C – 1967 deed for 4 acre life estate
Exhibit D -- 1985 partition deed
Exhibit E -- 1995 deed from Appellant to Gwendolyn Boatman
Exhibit F – 2003 gift deed from Gwendolyn Boatman to Appellant
Exhibit G – Rescission of gift deed
Appellant’s Brief 06-15-00030-CV Page 47