Nancy Moore-Vaughn v. Estate of William H. Moore, Ronald Keith Moore and Teresa Jean Blackwell, Co-Trustees and Beneficiaries of the William H. Moore Revocable Trust and Co-Executors of the Estate of William H. Moore

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-20-00019-CV

NANCY MOORE, APPELLANT

V.

ESTATE OF WILLIAM H. MOORE, DECEASED
RONALD KEITH MOORE AND TERESA JEAN BLACKWELL,
CO-TRUSTEES AND BENEFICIARIES OF THE WILLIAM H. MOORE
REVOCABLE TRUST AND CO-EXECUTORS OF THE ESTATE OF
WILLIAM H. MOORE, APPELLEES

On Appeal from the Probate Court No. 1
Tarrant County, Texas1
Trial Court No. 2014-PR00100-1-A, Honorable Chris Ponder, Presiding

July 30, 2021
MEMORANDUM OPINION
Before QUINN, C.J.,2 and PIRTLE and DOSS, JJ.

1Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001
(West 2013). Should a conflict exist between precedent of the Second Court of Appeals and this Court on
any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court.
TEX. R. APP. P. 41.3.

2 Chief Justice Brian Quinn, not participating.
 This case involves a family dispute over the property of William H. Moore,

deceased. Following a jury trial, Appellant Nancy Moore-Vaughn appeals an adverse

judgment rendered in favor of her stepchildren, Appellees Keith Moore and Teresa Jean

Blackwell. Appellees appear individually and as co-trustees and beneficiaries of the

William H. Moore Revocable Trust and as co-executors of the Estate of William H. Moore,

deceased. We overrule each of Nancy’s issues and affirm the judgment of the trial court.

Background

Keith and Teresa are the adult children of William. In 1997, William executed a

Last Will and Testament and two codicils; therein he directed his residuary estate to be

given to the trustee of the William H. Moore Revocable Trust.3 When William created the

trust at the same time as he executed his will, he appointed Keith and Teresa co-trustees

and named them trust beneficiaries.

During this same period, William also executed a durable power of attorney,

naming Nancy his attorney-in-fact. The power of attorney authorized Nancy to take

certain actions and engage in transactions on William’s behalf, including the power to:

(1) Engage in and actively transact any and all lawful business of
whatever nature or kind for me and in my name; * * *

(2) Continue and operate any of my business operations or interests
therein, collect, recover and receive all and any sums of money
whatsoever due, payable or belonging to any of said business operations
* * *;

(3) To sign, * * * deliver, receive and possess such applications,
contracts, agreements, * * * deeds, conveyances, trust deeds, * * * and
other instruments in writing of whatever kind and nature as may be

3 The codicils do not change the effect of this portion of William’s will.

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 necessary or proper in the exercise of the rights and powers herein
granted; * * *

(6) Endorse checks payable to me, withdraw sums on deposit in any
banking institution under my name, cash social security checks, claim
checks, treasury notes, or bonds or certificates of deposit owned by me
and in my name;

(7) Enter into and take possession of all or any of the lands and real
estate whatsoever in my name or in which I am or may be in anywise
entitled or interested; * * *

Said Attorney-in-Fact shall perform these acts as fully as I might do if
done in my own capacity, giving and granting unto my said Attorney-in-
Fact full power and authority, to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the
premises, as fully, to all intents and purposes as I might or could do if
personally present.

In 2005, William granted Nancy a life estate in William’s working interest in what

the parties refer to as the “Goliad” or “Ledbetter” mineral lease in Taylor County,4 Texas,

with the remainder in Keith.

The record identifies a second oil and gas lease that the parties refer to as the

“Shelton” lease. The final judgment states the Shelton lease refers to the “Oil and Gas

Lease dated December 20, 2004 from Frances Sears Shelton and Fred B. Shelton, Jr. to

David Y. Rogers recorded in Vol. 3066 at Page 829 covering Section 234, Block 64, H&TC

Ry. Co. Survey.”

4 The assignment specifically describes the property as the “Oil and Gas Lease dated June 27,

1950, from Mrs. Emma Hankins to Charles W. Clark, recorded in Volume 409, Page 346 Deed Records of
Taylor County, Texas., covering:

All of Goliad County School Lands, League 143. Taylor County (hereinafter referred to as said
‘Lease’ and said ‘Lands’).”

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 As William’s health deteriorated, he became unable to manage his financial affairs.

In 2011, William (via Nancy as his attorney-in-fact) sued Keith and Teresa as trustees

over disputes regarding responsibility for paying for William’s living expenses. The

dispute was submitted to arbitration. In March 2012, an arbitration award was rendered

and confirmed by a final judgment later that month. In relevant part, the award provided:

On or before the date which is ten (10) days following the entry of the
Court’s judgment based on this Award of Arbitrator, Nancy will resign
from her duties and responsibilities as William H. Moore’s attorney-in-
fact, under the Durable Power of Attorney. * * * Should Nancy not comply
or timely sign the Resignation, she shall be removed as attorney-in-fact
by the Court. * * *

On or before the date which is ten (10) days following the entry of the
Court’s judgment based on this Award of Arbitrator, Nancy, acting as
William H. Moore’s attorney in fact, pursuant to the Durable Power of
Attorney, shall transfer to the Trust all of William H. Moore’s working
interests in any and all oil and/or gas properties, including, but not limited
to, the Shelton Lease in Taylor County, Texas. Nancy has no right, title
or interest in any and all oil and/or gas working interests owned by William
H. Moore, including, but not limited to, the Shelton Lease in Taylor
County, Texas, now or at any point in time in the future. Any and all
royalty interest attributable to the real property located at 1016
Chasemore Court, Mansfield, Texas belongs to Nancy.

The evidence is unclear whether Nancy ever resigned as attorney-in-fact; when

asked at trial, Nancy replied, “Let’s say we did. I can’t answer that.” The record does

suggest that while she still had the power, on April 11, 2012, acting individually and as

William’s attorney-in-fact, Nancy executed an assignment purporting to transfer William’s

interest in the Goliad-Ledbetter lease to the trust. Nancy never transferred any interest

in the Shelton lease; she continued depositing production revenue checks to an account

she and William jointly owned, even after she thought her powers of attorney had expired

and after William’s death.

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 William died in January 2014. Nancy executed division orders, effective May 1,

2014, concerning production on the Shelton lease. These documents refer to “Nancy K.

Moore life estate remainder R. Keith Moore,” and were signed by Nancy, as owner.

Nancy began receiving and depositing revenue production checks on the Shelton lease,

made payable to her.

Another round of litigation occurred between Nancy, Keith, and Teresa, this time

regarding the 2012 arbitration award. That dispute was resolved in May 2014 through a

compromise settlement agreement. In part the agreement provided:

The Parties agree that each shall keep and own such real and personal
property as they currently possess without any challenge of any other
party. In this regard, by way of example, and for the sake of clarity,
Nancy [] shall have and keep as her real and personal property the
residence and such gold (or proceeds), money, personal property and
accounting including the IRA account awarded in the Award of Arbitrator
currently in Nancy[’s] possession.
***
ln consideration of the payment of $75,000.00 to Nancy [] and the
promises described herein, the Parties agree to Release, Acquit and
Forever Discharge, each other * * * from any and all * * * judgment, claims
and demands whatsoever * * * of any kind or character whatsoever . . . .

In April 2018, Keith and Teresa, in their individual and representative capacities,

sued Nancy, alleging she breached her contractual duty to transfer the Shelton lease to

the trust, was liable under a theory of money had and received, and breached her fiduciary

duties. The pleading sought imposition of a constructive trust, actual and exemplary

damages, and attorney’s fees.

Nancy answered and brought a counterclaim seeking a declaratory judgment that

the 2014 settlement agreement allowed her to retain the Shelton lease, alleged that Keith

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and Teresa breached the 2014 settlement agreement by filing their lawsuit, and sought

attorney’s fees.

The case was tried to a jury. Based on the jury’s verdict, the trial court signed a

judgment declaring “any right[,] title[,] claim or interest asserted by [Nancy] in the property

known as the Shelton Lease * * * is hereby extinguished or transferred to the [trust].

[Nancy] also has no right, title, claim or interest in the Shelton Lease or any oil and gas

or other mineral interest in the Shelton Lease . . . now or at any time in the future.” The

judgment also awarded Appellees damages of $18,753.51, prejudgment and

postjudgment interest, and attorney’s fees and conditional appellate attorney’s fees.

Analysis

Through a single issue with multiple sub-issues, Nancy requests rendition of

judgment that Appellees take nothing and that she be declared the “lawful owner of the

Shelton Lease mineral interest.” Nancy presents five sub-issues to argue: (1) The 2014

settlement agreement released Nancy from obligations under the 2012 award and

judgment to transfer the Shelton lease; (2) The jury’s answers to questions 1-4 were

immaterial; (3) The trial court abused its discretion and reversibly erred in allowing Keith

to testify of his interpretation of the 2014 settlement agreement; (4) Appellees are bound

by the jury’s unchallenged finding that they “failed to comply” with the 2014 settlement

agreement; and (5) the trial court erred by failing to render a judgment that the settlement

agreement vested the Shelton lease in Nancy.

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Who Owns the Shelton Lease?

In her first sub-issue, Appellant argues the 2012 judgment “required Nancy to

transfer her interest in the Shelton Lease,” but that she did not do so. She reasons that

when the parties entered a settlement agreement in 2014 that released her from any

obligation to transfer the Shelton lease. She argues in her second and third sub-issues

that the jury’s adverse findings were immaterial because the purported 2014 waiver

meant “she was no longer required to transfer her interest in the Shelton Lease pursuant

to the Settlement Agreement.” In her sixth sub-issue, Nancy argues the trial court erred

in failing to declare “that the Settlement Agreement allows her to retain the Shelton Lease

and that the Settlement Agreement vests interest in the Shelton Lease in her.” Because

these sub-issues each share as their kernel her position that the 2014 settlement

agreement had the effect of vesting or recognizing Nancy’s ownership of the Shelton

lease, we address these arguments as a group. We disagree with the relief sought by

Nancy.

The fallacy with Nancy’s argument is its dependence on the faulty premise that

she ever possessed any title or interest in the Shelton lease. The record shows Nancy

possessed a life estate in William’s working interest in the Goliad/Ledbetter mineral lease.

However, no record evidence shows William gave Nancy any interest – actual or

possessory – in the Shelton lease. Nor does any evidence conclusively indicate Nancy

otherwise obtained title or possession of the Shelton lease in the absence of William’s

consent. Rather, the 2012 judgment simply required Nancy, as William’s attorney-in-fact,

to transfer William’s interest in the Shelton lease to the trust. The 2014 settlement

agreement did not, by transfer or waiver, vest the Shelton lease with Nancy.

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 Designation of an attorney-in-fact through a power of attorney is one means of

creating a principal-agent relationship. Nancy’s duties of performance as attorney-in-fact

for William were subject to the terms of the governing document. Nat’l Plan Adm’rs, Inc.

v. Nat’l Health Ins. Co., 235 S.W.3d 695, 702 (Tex. 2007) (quoting RESTATEMENT (THIRD)

OF AGENCY § 8.07 cmt. a (2006) (“[A]n agent’s duties of performance to the principal are

subject to the terms of any contract between them.”). When we interpret Nancy’s rights

and duties as granted under the power of attorney, we (1) restrict the meaning of the

general words in the document to the context in which they exist, and (2) strictly construe

Nancy’s authority “so as to exclude the exercise of any power that is not warranted either

by the actual terms used, or as a necessary means of executing the authority with effect.”

In re Estate of Miller, 446 S.W.3d 445, 455 (Tex. App.—Tyler 2014, no pet.) (citing Gouldy

v. Metcalf, 75 Tex. 455, 12 S.W. 830, 831 (Tex. 1889)).

We find nothing in the power of attorney executed by William that made any

transfer of the Shelton lease to Nancy. Rather, as the language and their context

conclusively show, Nancy’s authority to act as attorney-in-fact merely permitted her to

perform “acts as fully as [William] might do if done in [his] own capacity * * *.” Moreover,

the 2012 arbitration and award was careful to distinguish between Nancy’s responsibilities

as “attorney-in-fact” for William and those in her individual capacity. Relevant here,

Nancy’s obligation to transfer to the trust all of William’s working interest in the Shelton

lease was expressly directed to “Nancy, acting as William H. Moore’s attorney in fact,

pursuant to the Durable Power of Attorney.”

That Nancy, as William’s agent, failed to fulfill her obligation to transfer the Shelton

lease to the trust did nothing to contrive a personal interest in the Shelton property; nor

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did the settlement agreement signed in May 2014. When William died in January earlier

that year, Nancy’s authority as attorney-in-fact ceased. See Hardy v. Robinson, 170

S.W.3d 777, 781 (Tex. App.—Waco 2005, no pet.) (citing former TEX. PROB. CODE ANN.

§§ 486(a) & 487(a)); see TEX. ESTATES CODE ANN. §§ 751.054 & 751.055 (West 2020).

Ergo, William’s working interest in the Shelton Lease had already passed according to

his will before the 2014 agreement was signed. The 2014 settlement agreement may

have granted Nancy the ability to “keep and own such real and personal property as [she]

currently possess[es]5 without any challenge of any other party,” but no evidence in the

record reflects that Nancy, individually, ever possessed any interest in the Shelton lease.

We conclude, on this record, no evidence support’s Nancy’s claimed entitlement

to an interest in the Shelton lease. Because Nancy’s first, second, third, and sixth sub-

issues depend on her erroneous theory that she possesses an interest in the Shelton

lease, we overrule said issues.

Nancy’s objection to Keith’s parol interpretation of the 2014 settlement agreement

Nancy next asserts the trial court abused its discretion by permitting Keith, over

objection, to vary the terms of the 2014 settlement agreement by his testimony.

Assuming, but without deciding, that the trial court abused its discretion in allowing Keith’s

explanation of mistake, the error was harmless because the outcome of the trial would

have been the same without such testimony. TEX. R. APP. P. 44.1(a); City of Austin v.

5 The parties did not define the term “possess” in the 2014 settlement agreement, so we look to the

ordinary meaning of the word. The word “possess” is commonly defined as, “To have in one’s actual control;
to have possession of.” Black’s Law Dictionary 1281 (9th ed. 2009). And “to have and hold as property:
OWN.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 968 (11th ed. 2003). As noted, the record provides no
evidence that Nancy ever owned any interest in the Shelton lease.

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Roberson, No. 13-06-00218-CV, 2008 Tex. App. LEXIS 2180, at *19 (Tex. App.—Corpus

Christi Mar. 27, 2008, no pet.) (mem. op.). Moreover, Nancy likewise testified about the

parties’ mutual misunderstanding that the April 2012 lease assignment had been of the

Shelton lease rather than the Goliad/Ledbetter lease. See In re B.G.W., No. 12-13-

00026-CV, 2013 Tex. App. LEXIS 7678, at *12 (Tex. App.—Tyler Jun. 25, 2013, no pet.)

(mem. op.) (explaining “an error in the admission of evidence is harmless if substantially

the same evidence is admitted elsewhere without objection.”). We overrule this sub-

issue.

Keith and Teresa’s breach of contract

In Question 5 of the court’s charge, the jury was asked, “Did [Keith and Teresa] fail

to comply with the 2014 Compromise Settlement Agreement and Mutual Release?” The

question was not accompanied by any instruction and did not specify any alleged act of

non-compliance. The jury was not asked if the alleged breach was material. The jury

was not asked if Keith’s and Teresa’s breach proximately caused any remediable injury

to Nancy. Nor was the jury asked to state a sum of money that would fairly and reasonably

compensate Nancy for her injuries.

Because the jury simply answered “Yes,” without being asked for more, the parties

each speculate what the jury meant in its finding of a breach. Nancy, for example, argues

the jury’s verdict in her favor mandates a judgment that she is, consistent with the 2014

settlement agreement, “entitled to keep and own any real and person[al] property in her

possession at the time of the settlement agreement, and that Plaintiffs would not

challenge her ownership and possession.” While the 2014 settlement agreement

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contains similar language to that effect, nothing in said agreement affixed Nancy’s

claimed entitlement to the Shelton lease. Moreover, any other number of possible

breaches of the agreement could have prompted the same answer.

We decline to speculate about what the jury meant in its “Yes” answer. No party

requested additional questions or instructions that might have assisted the jury in

pinpointing its decision6 and no party objected to a conflict with the jury’s answers to other

portions of the charge.7 We hold that, notwithstanding a finding of a breach of contract

by Appellees, the trial court did not err in rendering its judgment. See City of Brownsville

v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995) (a jury question may be immaterial, or

harmless, “when its answer can be found elsewhere in the verdict or when its answer

cannot alter the effect of the verdict.”).

Conclusion

Having overruled Nancy’s appellate complaints, we affirm the judgment of the trial

court.

Lawrence M. Doss
Justice

6 See TEX. R. CIV. P. 279. See also TEX. R. CIV. P. 274: “A party objecting to a charge must point
out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question,
definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless
specifically included in the objections.”

7See TEX. R. CIV. P. 295. See also Beltran v. Brookshire Grocery Co., 358 S.W.3d 263 (Tex.
App.—Dallas 2011, pet. denied) (holding that complaint about irreconcilable conflict in jury’s verdict is
waived if no objection is made prior to jury’s discharge).

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