Leta York v. Todd Boatman

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