Robert Goepp// Heidi M. Goepp-Schurman v. Comerica Bank & Trust, N.A. Heidi M. Goepp-Schurman And Myra J. Goepp// Comerica Bank & Trust, N.A. Robert Goepp And Myra J. Goepp

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00485-CV

Appellant, Robert Goepp // Cross-Appellant, Heidi M. Goepp-Schurman

v.

Appellees, Comerica Bank & Trust, N.A.; Heidi M. Goepp-Schurman; and Myra J. Goepp
// Cross-Appellees, Comerica Bank & Trust, N.A.; Robert Goepp; and Myra J. Goepp

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
NO. C-1-PB-18-001903, THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING

MEMORANDUM OPINION

Robert C. Goepp (Bob) and Heidi Goepp-Schurman each appeal from the probate

court’s order denying Heidi’s plea to the jurisdiction and motion to abate or dismiss the case;

overruling Bob’s reimbursement request; and granting Comerica’s petition for settlement of

trustee’s final account and for an order of no liability. For the following reasons, we affirm.

BACKGROUND

Bob, Heidi, and Myra Goepp are the children of Robert A. and Iraida P. Goepp.1

During their lifetimes, Robert and Iraida established the Robert A. Goepp Marital Trust and the

Iraida P. Goepp Living Trust with their children as the ultimate beneficiaries. After Robert

1
Because the parties share similar last names, we will refer to them by their first names
and, consistent with the parties’ appellation, refer to the father Robert A. Goepp as “Robert” and
the son Robert C. Goepp as “Bob.”
passed away, a Travis County guardianship proceeding for Iraida was initiated in 2011, and a

guardian was appointed. The children also began serving as co-trustees of the Goepp Trusts.

After conflicts arose, however, the children entered into a family settlement agreement (the FSA)

in 2014 that provided for a corporate successor trustee, and Comerica filled that role. The FSA

also provided that Bob would receive a parcel of real property (the Kilbourn Property); that

Heidi and Myra would receive preferential cash distributions based on a Kilbourn Property

appraisal; and that Myra or Bob “may pay incidental expenses relating to Iraida Goepp’s care”

and “submit those payments for reimbursements” to the “the Successor Trustee.” Iraida passed

away in 2015, and the next year the probate court signed an order admitting a copy of Iraida’s

will and appointing Comerica as dependent administrator. In April 2018, Comerica filed its final

account and application to close Iraida’s estate and to discharge the administrator.

In October 2018, Comerica, as trustee of the Goepp Trusts, filed a First Amended

Petition for Settlement of Trustee’s Final Account and Order of No Liability (the Trustee’s

Petition). Bob “object[ed]” to the Trustee’s Petition, complaining about the timing of certain

preferential distribution payments, about the calculations of interest on the distributions, and that

he “has yet to be reimbursed the monies owed to him for out of pocket expenses of durable

medical equipment purchased on behalf of Iraida.” Heidi, initially acting pro se, filed an answer

in December raising various complaints. Later that month, Heidi’s lawyer filed an amended

answer entering a general denial. In January 2019, Myra filed a general denial.

The probate court conducted a bench trial on the Trustee’s Petition in June 2019.

In its opening remarks, the probate court stated “that there is a plea to the jurisdiction and some

other pleading” that “is being filed as we speak over with the clerk” and that “we’re not going to

proceed until the filer of that document, which I understand is maybe Heidi Goepp, is back with

2
her pleading and then we can get our announcements.” At that time, Heidi, acting pro se at the

trial, was filing a “Plea to the Jurisdiction, Motion to Vacate All Orders and Abate or Dismiss

Case” (the Plea). When Heidi returned, the probate court stated, “You should have filed that

with the clerk before today,” and, “We’ll take another recess.” After the recess, Heidi testified as

to the Plea on voir dire. Following Heidi’s testimony, the probate court orally denied the Plea.

The trial then proceeded with Heidi, Myra, and Bob testifying along with Comerica’s witness.

Following the trial, the probate court entered an order denying Heidi’s Plea and

granting the Trustee’s Petition. In the order, the probate court concluded that it had jurisdiction

and that venue was proper; that Comerica administered the Goepp Trusts in accordance with the

terms of the instruments and with Texas law; that Comerica is entitled to court settlement and

release of liability as to the Goepp Trusts; that Heidi and Myra were each entitled to preferential

distributions of $128,865.29 pursuant to the FSA; and that Bob’s reimbursement requests are

denied as “either barred by the Statute of Limitations” or “controlled by the FSA.”

In this appeal, Bob challenges both the legal and factual sufficiency of the

evidence supporting the amount for preferential distributions and the denial of his request for

reimbursement. Heidi also appeals, challenging the probate court’s denial of her Plea and the no

liability ruling.

DISCUSSION

Jurisdiction

As a threshold matter, Heidi challenges the probate court’s jurisdiction over the

case, raising three arguments: the probate court lacked subject matter jurisdiction over the case

because “a statutory probate court cannot take jurisdiction of an inter vivos trust” and “exclusive

3
jurisdiction is in District Court under Tex. Prop. Code Section 115 and Tex. Est. Code Chapter

32”; an Illinois court has exclusive jurisdiction by the express language of the Living Trust; and

an Illinois court acquired dominant jurisdiction over the case thereby depriving the Texas

probate court of jurisdiction.2 We consider each argument in turn.

Heidi did not raise her first argument regarding the probate court’s subject matter

jurisdiction in her Plea. Nevertheless, “[s]ubject matter jurisdiction is an issue that may be raised

for the first time on appeal.” Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445

(Tex. 1993). Although subsection 115.001(a) of the Texas Property Code grants a district court

“original and exclusive jurisdiction over all proceedings by or against a trustee and all

proceedings concerning trusts,” that subsection is prefaced with “[e]xcept as provided by

Subsection (d) of this section.” Tex. Prop. Code § 115.001(a). Subsection (d)(1) states, “The

jurisdiction of the district court is exclusive except for jurisdiction conferred by law on: (1) a

statutory probate court[.]” Id. § 115.001(d)(1). And jurisdiction is conferred by law on a

statutory probate court by section 32.006 of the Texas Estates Code: “In a county in which there

is a statutory probate court, the statutory probate court has jurisdiction of” both “an action by

or against a trustee” and “an action involving an intervivos trust, testamentary trust, or

charitable trust.” Tex. Est. Code § 32.006(1), (2); see Johnson v. Johnson, No. 04-19-00500-CV,

2020 WL 214762, at *3 (Tex. App.—San Antonio Jan. 15, 2020, no pet.) (mem. op.) (noting

jurisdiction of “statutory probate courts is broad”). It is undisputed that the Goepp Trusts are

intervivos trusts and that Comerica, as trustee, brought the underlying suit in a statutory probate

2
These arguments were raised in four issues: whether the probate court committed
reversible error by denying Heidi’s Plea; whether the court erred by assuming subject matter
jurisdiction over the Goepp Trusts; whether the court erred by applying Texas law in violation of
the Goepp Trusts; and whether the trust lawsuit was ancillary to or related to any pending estate
matter when filed.
4
court in Travis County. See Tex. Gov’t Code § 25.2291(c) (“Travis County has one statutory

probate court, the Probate Court No. 1 of Travis County.”). Thus, in light of section 32.006 of

the Texas Estates Code, section 115.001 of the Texas Property Code did not deprive the probate

court of subject matter jurisdiction over the underlying case.3

In Heidi’s next argument, she argues that an Illinois court has exclusive

jurisdiction under section 10.16 of the Living Trust:

10.16 Controlling Law. The validity and effect of each trust and the construction
of this instrument and of each trust shall be determined in accordance with the
laws of Illinois. The original situs and original place of administration of each
trust shall also be Illinois, but the situs and place of administration of any trust
may be transferred at any time to any place the trustee determines to be for the
best interests of the trust.

Contrary to Heidi’s position in her appellate briefing, however, section 10.16 does not implicate

the probate court’s subject matter jurisdiction. As to section 10.16’s first sentence, a “foreign
3
In her fourth issue, Heidi asserts that the “trust matter is not ‘incident to or ancillary to’
any pending estate matter in probate court.” Heidi argues that section 115.001(d) of the Texas
Property Code “is limited to matters ‘incident to an estate’ and apply only when a probate
proceeding relating to such estate is actually ‘pending’ in the probate court,” citing Baker v.
Baker, No. 02-18-00051-CV, 2018 WL 4224843, at *1–2 (Tex. App.—Fort Worth Sept. 6, 2018,
no pet.) (mem. op.), and that “[t]o trigger a statutory probate court’s exclusive subject-matter
jurisdiction over a cause ‘related to the probate proceeding,’ a probate proceeding must be
pending.” But Baker concerned a statutory probate court’s jurisdiction under section 32.005 of
the Texas Estates Code, not section 32.006, and is therefore not applicable here. See id. (citing
Tex. Est. Code § 32.005(a) (providing statutory probate court with “exclusive jurisdiction of all
probate proceedings” and related causes of action unless its jurisdiction “is concurrent with the
jurisdiction” of “any other court”)). Section 32.006 concerns a statutory probate court’s
independent jurisdiction, not its jurisdiction over causes related to the probate proceeding. See
Lee v. Lee, 528 S.W.3d 201, 213 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (“Our
conclusion that a statutory probate court has jurisdiction over ‘an action involving an inter vivos
trust, testamentary trust, or charitable trust’ as unambiguously stated in Texas Estates Code
section 32.006, is unaffected by the authorities Susan cites concerning proceedings ‘appertaining
to or incident to an estate.’ The authorities on which Susan relies deal with conditions in which a
court exercising original probate jurisdiction can exercise jurisdiction over related or ancillary
matters; they do not address a statutory probate court’s independent jurisdiction over
trust actions.”).
5
choice-of-law provision” does not prevent Texas courts from exercising jurisdiction over the

case. IRA Res., Inc. v. Griego, 221 S.W.3d 592, 598 (Tex. 2007); see Dubai Petrol. Co. v. Kazi,

12 S.W.3d 71, 76 (Tex. 2000) (noting “longstanding principle that subject-matter jurisdiction is a

power that ‘exists by operation of law only, and cannot be conferred upon any court by consent

or waiver’” (quoting Federal Underwriters Exch. v. Pugh, 174 S.W.2d 598, 600 (Tex. 1943))).

Regarding section 10.16’s second sentence, Heidi asserts, without citing any authority, that

“[t]he Texas Estates Code makes the situs of administration of the trust during the preceding four

years the location for subject matter jurisdiction.” Presumably, Heidi is referring to section

115.002(c) of the Texas Property Code, which provides that “the venue of an action under

Section 115.001” when there is a corporate trustee shall be the county in which either “the situs

of an administration of the trust is maintained or has been maintained at any time during the

four-year period preceding the date the action is filed” or “any corporate trustee maintains its

principal office in this state.” Tex. Prop. Code § 115.002(c). But “[v]enue pertains solely to

where a suit may be brought and is a different question from whether the court has ‘jurisdiction

of the property or thing in controversy,’” and “unlike subject-matter jurisdiction . . . venue may

be waived if not challenged in due order and on a timely basis.” Gordon v. Jones, 196 S.W.3d 376,

383 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (first quoting National Life Co. v. Rice,

167 S.W.2d 1021, 1024 (Tex. [Comm’n Op.] 1943); then citing Tex. R. Civ. P. 86(1); Massey

v. Columbus State Bank, 35 S.W.3d 697, 700 (Tex. App.—Houston [1st Dist.] 2000, pet.

denied)). Because it is undisputed that Heidi filed an answer and that her attorney filed a general

denial approximately six months before filing the Plea, Heidi waived any objections to the

alleged improper venue. See In re OSG Ship Mgmt., Inc., 514 S.W.3d 331, 337 (Tex. App.—

Houston [14th Dist.] 2016, orig. proceeding) (“[U]nless venue is challenged by a motion to

6
transfer venue filed before or concurrently with the defendant’s answer, any objection to venue is

waived.” (citing Lui v. Cici Enters. L.P., No. 14-05-00827-CV, 2007 WL 43816, at *2 (Tex.

App.—Houston [14th Dist.] Jan. 9, 2007, no pet.) (mem. op.))); see also Tex. R. App. P. 33.1(a)

(requiring as prerequisite to presenting complaint for appellate review that complaint was made

to trial court by timely request, objection, or motion); Tex. R. Civ. P. 86(1) (“An objection to

improper venue is waived if not made by a written motion filed prior to or concurrently with any

other plea, pleading or motion except a special appearance motion provided for in Rule 120a.”).

Turning to Heidi’s dominant jurisdiction argument—the primary argument raised

in her Plea—“[t]he general common law rule in Texas is that the court in which suit is first filed

acquires dominant jurisdiction to the exclusion of other coordinate courts.” In re J.B. Hunt

Transp., Inc., 492 S.W.3d 287, 294 (Tex. 2016) (orig. proceeding) (quoting Curtis v. Gibbs,

511 S.W.2d 263, 267 (Tex. 1974)); see In re Puig, 351 S.W.3d 301, 305 (Tex. 2011) (orig.

proceeding) (per curiam) (noting that “filing a dilatory plea in abatement is the proper method

for drawing a court’s attention to another court’s possible dominant jurisdiction”). Heidi argues

that dominant jurisdiction applies because “[t]he Cook County [Illinois] Circuit Court has re-

opened its prior filed 2014 case involving the same parties and trusts.” However, dominant

jurisdiction applies to suits filed in different counties within Texas; the doctrine “does not apply

to suits filed in other states because ‘every state is entirely sovereign and unrestricted in its

powers.’” In re Old Am. Cty. Mut. Fire Ins., No. 03-12-00588-CV, 2012 WL 6699052, at *1

(Tex. App.—Austin Dec. 20, 2012, orig. proceeding) (mem. op.) (quoting Ashton Grove L.C.

v. Jackson Walker L.L.P., 366 S.W.3d 790, 794 (Tex. App.—Dallas 2012, no pet.)). Instead,

states apply a “general rule” based on “state-to-state comity, which, while not a constitutional

obligation, is ‘a principle of mutual convenience whereby one state or jurisdiction will give

7
effect to the laws and judicial decisions of another’”; namely, “[w]hen a matter is first filed in

another state, the general rule is that Texas courts stay the later-filed proceeding pending

adjudication of the first suit.” In re AutoNation, Inc., 228 S.W.3d 663, 670 (Tex. 2007) (orig.

proceeding) (quoting Gannon v. Payne, 706 S.W.2d 304, 306 (Tex. 1986)). In this situation,

“the proper course of action is for the first-filing party to seek a stay, rather than seeking relief

through a plea in abatement,” and “we should consider whether the later-filed case should be

stayed under the doctrine of comity.” Old Am., 2012 WL 6699052, at *1–2. However, “the

mere pendency of a previously filed action in one state does not, in itself, mandate abatement or

dismissal in another state,” AutoNation, 228 S.W.3d at 670, and “[b]eing voluntary and not

obligatory, the application of comity vests in the sound discretion of the trial court,” Ashton

Grove, 366 S.W.3d at 794. We therefore “examine the pleadings filed in the cases and ask

whether the trial court abused its discretion in refusing to grant the stay [in] the later-filed action”

by making a decision “so arbitrary and unreasonable that it amount to a ‘clear and prejudicial

error of law’” or by “misappl[ying] the law to the facts.” Old Am., 2012 WL 6699052, at *2

(quoting Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding)).

Assuming Heidi’s Plea requesting abatement based on dominant jurisdiction

could be construed as a motion to stay based on comity, we conclude that the probate court did

not abuse its discretion in denying the request for a stay. “To show its entitlement to a stay, the

party must generally show ‘that the two suits involve the same cause of action, concern the same

subject matter, involve the same issues, and seek the same relief.’” Id. (quoting Griffith

v. Griffith, 341 S.W.3d 43, 54 (Tex. App.—San Antonio 2011, no pet.)). Heidi’s Plea referenced

the following order as reopening the Cook County suit: “June 5, 2019 Order of Cook County,

Illinois Court re-opening this case for dominant jurisdiction of the Goepp family trusts.” But

8
Heidi did not attach the Cook County order to her Plea and admitted in her testimony that “it

wasn’t included in [the Plea].”4 At trial, counsel for the parties disputed whether there was

pending litigation in Cook County, Illinois, and when Bob’s counsel stated that there had been a

filing in Cook County the day before, Comerica’s counsel argued that Comerica had not received

any notice of any filing in Cook County. The probate court expressed confusion and asked

whether Comerica’s counsel would like to take Heidi on voir dire. On voir dire, Comerica’s

counsel asked whether Heidi had the document from the Illinois court. When Heidi tried to

show a document on her telephone, Comerica’s counsel responded that he needed to “see the

document.” And when Heidi requested to print the document, Comerica’s counsel responded, “I

don’t think there is any way to print it” and “even if you printed it, it wouldn’t be a certified

document. It would be a copy of a purported certified copy.” Heidi also testified that she and

Bob had filed suit against Comerica with “Judge Brennan in Chicago” and that Judge Brennan

“left [the case] open.” But Comerica’s counsel objected “to any testimony about what

Judge Brennan did without seeing the certified document,” and the probate court sustained the

objection. Finally, when asked if she filed something in Cook County in the last six months,

Heidi said “No” but “I know that something was filed. The contents of the filing, I do not

know.” On this record, we conclude that the probate court’s denial of Heidi’s request for a

stay—to the extent her Plea could be construed as such—was not an abuse of discretion. See id.;

Ashton Grove, 366 S.W.3d at 794.

4
Although Heidi was acting pro se at trial, pro se litigants “are held to the same standard
as parties represented by counsel to avoid giving unrepresented parties an advantage over
represented parties.” Stewart v. Texas Health & Hum. Servs. Comm’n, No. 03-09-00226-CV,
2010 WL 5019285, at *1 n.1 (Tex. App.—Austin Dec. 9, 2010, no pet.) (mem. op.) (citing
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978)).
9
 Accordingly, we overrule Heidi’s first four issues addressing the probate

court’s jurisdiction.

No Liability Order

In her fifth and final issue, Heidi argues that the probate court “abus[ed] [its]

discretion in issuing an order of ‘no liability’ . . . to extinguish [Heidi’s] claims for breach of

trust and breach of fiduciary duty in violation of the law.” Heidi does not challenge the

sufficiency of the evidence supporting the order; rather, she argues that the probate court “cannot

rule that Comerica . . . has no liability or attempt to adjudicate this claim, which would have a

preclusive effect on further litigation elsewhere.” Heidi’s argument is not exactly clear. To the

extent Heidi is challenging the order on the jurisdictional grounds raised in her first four issues,

we have overruled those issues. And if Heidi is raising a nonjurisdictional ground to challenge

the issuance of the “no liability” order, she did not preserve error as to this issue by making this

complaint to the probate court and obtaining a ruling on the complaint. See Tex. R. App. P.

33.1(a). We therefore overrule Heidi’s fifth and final issue.5

5
In her appellate reply brief, Heidi raises for the first time arguments related to the
Uniform Enforcement of Foreign Judgments Act, the Full Faith and Credit Clause of the United
States Constitution, and the doctrine of res judicata, and she attaches various documents to her
reply brief that were not included in the record. Because these arguments were not raised in her
opening brief, we do not consider them. See Tex. R. App. P. 38.3 (“The appellant may file a
reply brief addressing any matter in the appellee’s brief.”); McFadden v. Olesky, 517 S.W.3d 287,
293 n.3 (Tex. App.—Austin 2017, pet. denied) (“Ordinarily, an argument asserted for the first
time in a reply brief is waived and need not be considered by an appellate court.”). Nor do we
consider the documents that were not properly presented to the probate court and included in the
record on appeal. See Tex. R. App. P. 34.1, 38.1(g); Save Our Springs All., Inc. v. City of
Dripping Springs, 304 S.W.3d 871, 892 (Tex. App.—Austin 2010, pet. denied) (“We are limited
to the appellate record provided.”); Burke v. Insurance Auto Auctions Corp., 169 S.W.3d 771,
775 (Tex. App.—Dallas 2005, pet. denied) (explaining that documents that are cited in brief and
attached as appendices may not be considered by appellate courts if they are not formally
included in record on appeal).
10
Interest Calculations

Having overruled Heidi’s issues, we now turn to Bob’s two appellate issues. In

his first issue, Bob claims that the trial court “erred in ordering a distribution in the amount of

$128,865.29 be made, each, to Heidi and Myra” because “[t]he only evidence to support any

distribution was that such amount should be $126,572.88.”

The FSA provides that “Heidi and Myra shall be entitled to preferential

distributions upon Iraida’s death from the Iraida Goepp Trust equivalent to the value of the

Kilbourn [Property] appraisal” and that “[t]he preferential distributions shall also accrue simple

interest of 3.5% from the date that the deed transferring the Kilbourn [Property] to [Bob] is

executed until the date the preferential distributions are completed.” It is undisputed on appeal

that the principal amount for the preferential distributions was $560,000; that the interest rate

was 3.5%; that the relevant time frame for interest accrual was February 10, 2015, through May

31, 2019; that on May 25, 2018, the balance of principal and interest had accrued to $624,438.36

($64,438.36 in accrued interest and $560,000 as principal); and that on May 25, 2018, Comerica

made a $500,000 payment from the estate trust to Myra and to Heidi as a partial payment.

At trial, Comerica submitted exhibit 5, which calculated a $126,572.88 total

balance due as of May 31, 2019. Exhibit 5 applied the $500,000 partial payment made on

May 25, 2018, to the principal alone and calculated interest going forward on the remaining

$60,000 outstanding principal amount.6 However, Myra’s attorney cross examined Comerica’s

representative as to the calculations on exhibit 5, asking, “Isn’t the normal procedure on a loan to

6
Specifically, the exhibit calculated interest on the $60,000 principal amount from
May 26, 2018, through May 31, 2019, for an additional $2,134.52, which equaled $66,572.88 in
total interest due when combined with the outstanding interest of $64,438.36 as of May 26, 2018.
Adding the total interest due to the remaining $60,000 principal balance created a $126,572.88
total balance due on May 31, 2019.
11
charge a payment against interest first?” Comerica’s representative said she did not know if that

is true. The probate court stated, “I can tell you from paying a mortgage that some of that is

princip[al], some of that is interest.” Myra’s attorney continued, “So if you charge that $500,000

first to the earned interest at that point, would . . . it increase the amount that is due to Heidi and

Myra?” Comerica’s representative said that she believed so, that the calculation could be easily

made, and that her estimate is that it would amount to “a few thousand” more for Myra and

Heidi. At the close of trial, the probate court asked Comerica’s attorney: “I would like one last

exhibit . . . . And that is an exhibit from your client. Because they answered some questions to

[Myra’s attorney] that the[re] may be a different calculation as to what is owed if you take the

payment made to interest first, princip[al] second.” Comerica submitted exhibit 12; the exhibit is

included in the reporter’s record on appeal, and the appellate record does not indicate any

objection to the exhibit. In exhibit 12, Comerica applied the $500,000 partial payment to pay off

first the interest that had accrued as of May 25, 2018, and then the principal amount. Thus, the

remaining principal amount for exhibit 12 is higher than on exhibit 5. Exhibit 12 then shows

the calculated interest on the remaining principal amount from May 26, 2018, through

May 31, 2019, and a total balance due on May 31, 2019, of $128,865.30.

After the probate court made the request for exhibit 12, Bob’s attorney asked to

address that point, stating, “That’s not what the [FSA] says. It’s not structured as a loan.” The

probate court asked, “Which way should it come?” Bob’s attorney said, “The cheapest way to

my client[.]” On appeal, however, Bob challenges only the legal and factual sufficiency of the

evidence; he does not address how the FSA structures how a partial payment would apply to the

preferential distribution. In its order, the probate court concluded that the FSA “required

preferential distributions with interest to Heidi [] and Myra [] related to Kilbourn Property and

12
the remaining amount of unpaid preferential distributions (including accrued interest) as of

May 31, 2019 are $128,865.29 to Heidi [] and $128,865.29 to Myra[.]” When, as here, no

findings of fact or conclusions of law are filed or requested following a bench trial, it is implied

that the trial court made all the necessary findings to support the judgment. Holt Atherton Indus.,

Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). Because the appellate record includes the

reporter’s record and clerk’s record, these implied findings are not conclusive and may be

challenged on appeal for legal and factual sufficiency. See BMC Software Belg., N.V.

v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). We review sufficiency challenges under

well-established standards of review. See City of Keller v. Wilson, 168 S.W.3d 802, 811

(Tex. 2005) (describing standard for reviewing legal sufficiency challenges); Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986) (per curiam) (describing standard for reviewing factual

sufficiency challenges).

On appeal, Bob argues that “Comerica’s Exhibit 12 reflects nothing more than a

document with numbers” and that “[t]here is no testimony to support its accuracy.” But exhibit

12 is not merely “a document with numbers”; it expressly lists the principal amount, the interest

rate, the number of days for monthly time frames, and the interest due for each monthly time

frame. And on appeal Bob does not identify any inaccuracies on exhibit 12. Additionally,

exhibit 12 is consistent with the testimony of Comerica’s representative that her estimate would

be that the balance due to Myra and Heidi would be “a few thousand” more than the amount

listed in exhibit 5. Accordingly, we conclude that exhibit 12 and the testimony of Comerica’s

representative constitute legally and factually sufficient evidence to support the probate court’s

judgment as to this issue and overrule Bob’s first issue.

13
Reimbursement Claim

In his second issue, Bob challenges the legal and factual sufficiency of the

evidence to support the denial of his “request for reimbursement of amounts that he expended on

behalf of his mother and which were clearly reimbursable under the terms of the [FSA].”

Section 11 of the FSA provides:

11. Payment of Iraida’s Care Expenses. . . . Nothing in this Agreement changes
the fact that John Crane, as guardian of Iraida Goepp’s Estate, or Debbie Pearson,
as guardian of Iraida Goepp’s person, has the proper authority to make health-care
decisions for Iraida Goepp, including changes to her care that may result in
greater expenses. Any of Myra or Robert may pay incidental expenses relating to
Iraida Goepp’s care and submit those payments for reimbursements to the
Guardian of the Estate or the Successors Trustee.

At trial, Bob submitted an exhibit requesting $31,272.32 for reimbursement and attaching

various agreements, invoices, and copies of checks related to that reimbursement request.

Comerica’s representative testified that she saw this reimbursement request for the first time the

day before trial and that she was never presented with any of the bills before the day of the

hearing. She also testified that many of those charges were made before the FSA was executed

in February 2014 and that most of the expenses concerned hyperbaric chamber treatment. When

Comerica’s counsel asked Bob whether Iraida received any of the hyperbaric chamber

treatments, Bob responded, “I don’t know.” And Heidi asked Bob on cross examination, “Why

didn’t our mother receive the hyperbaric treatments?” Bob responded that the court made a

ruling that “while I was still validly medical power of attorney that there could be no changes to

her care.” In its final order, the probate court ordered, “All other claims for reimbursement made

by [Bob] at the hearing on June 6th, 2019, are either barred by the Statute of Limitations or are

controlled by the [FSA] and are therefore DENIED.”

14
 As the party requesting affirmative relief, Bob bore the burden of proof as to his

entitlement to reimbursement. See TRO-X, L.P. v. Anadarko Petrol. Corp., 548 S.W.3d 458,

465–66 (Tex. 2018) (noting “well accepted postulate of the common law” that civil litigant

asserting affirmative claim for relief has burden of proof (quoting Vance v. My Apartment Steak

House of San Antonio, Inc., 677 S.W.2d 480, 482 (Tex. 1984))). When, as here, the appellant is

attacking the sufficiency of the evidence supporting an adverse implied finding on an issue for

which it had the burden of proof, we sustain a legal sufficiency challenge if the appellant

“demonstrate[s] on appeal that the evidence establishes, as a matter of law, all vital facts in

support of the issue” and a factual sufficiency challenge if the appellant “demonstrate[s] on

appeal that the adverse finding is so against the great weight and preponderance of the evidence

that it is clearly wrong and unjust.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001)

(per curiam).

We conclude that Bob did not meet his appellate burden. First, section 11 of the

FSA provides that Bob “may pay incidental expenses” and “submit those payments for

reimbursements.” (Emphases added.) The FSA therefore authorizes future payments and

reimbursement for those payments; it does not authorize reimbursement for payments already

made at the time the FSA was signed.7 Thus, there was sufficient evidence supporting the trial

court’s conclusion that Bob was not entitled to reimbursement for expenses paid prior to the

FSA. Second, the payments must be “incidental expenses relating to Iraida Goepp’s care.” The

remaining expenses were related to the hyperbaric chamber treatments. But there was sufficient

evidence of a court ruling in place that prevented changes to Iraida’s care to provide such

7
Section 7 of the FSA provided for reimbursement of already paid “Trust expense[s]”:
“7. Expense Reimbursement. Bob, Myra and Heidi shall each receive $650,000 in Trust expense
reimbursement and pre-death estate planning distributions from the Iraida Goepp Trust.”
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treatment and that Iraida did not receive any such care; thus, those payments were not “relat[ed]

to Iraida Goepp’s care.” Accordingly, we overrule Bob’s second issue.

CONCLUSION

Having overruled Heidi’s and Bob’s issues on appeal, we affirm the probate

court’s final order.

__________________________________________
Melissa Goodwin, Justice

Before Justices Goodwin, Kelly, and Smith

Affirmed

Filed: July 9, 2021

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