Cecil v. Smith

790 S.W.2d 709, 1990 WL 48695

• Court: Court of Appeals of Texas
• Decided: June 18, 1990
• Docket: 12-89-00044-CV
• Status: Published

Opinions

COLLEY, Justice.

In this case, plaintiff/appellant Mildred Cecil (hereinafter Cecil) seeks to set aside a warranty deed that was allegedly delivered by her mother, Martha L. Wisdom (hereinafter called Decedent), to her brother, defendant/appellee Charles Madison Smith (hereinafter Smith). Smith, as independent executor of the estate of Decedent, seeks to recover possession for the estate of funds alleged to be wrongfully held by Cecil.

It is appropriate to explain for the reader the procedural posture of this case.

Decedent died testate on May 7, 1985. Her will, admitted to probate and record by the constitutional County Court of Henderson County, named Smith as independent executor. By that will, Decedent left her entire estate to Smith and Cecil in equal shares. On February 25,1988, Smith filed an application in that court to recover from Cecil possession of the proceeds of a certificate of deposit in the amount of $43,-094.24, alleged to belong to the estate. After Smith filed that application, the probate cause was transferred from the County Court to the County Court at Law of Henderson County.

On June 6, 1988, Cecil, and other parties plaintiff, filed a suit in the 178rd Judicial District Court of Henderson County against Smith. By her first amended original petition,¹ Cecil, the sole plaintiff in the District Court, sought to remove Smith as independent executor of the Decedent’s estate and to set aside a deed executed by the Decedent dated April 25, 1972, in favor of Smith as grantee on the ground that the deed was acquired by undue influence and coercion on the part of Smith. On September 22, 1988, the District Court transferred that cause to the County Court at Law. Cecil then filed a trial amendment alleging that the deed from the Decedent to Smith was never delivered.

The case was submitted to a jury upon four fact questions. Questions 3 and 4 and the accompanying instructions and answers thereto are as follows, to wit:

Question No. 3

Do you find from a preponderance of the evidence that the deed dated April 25, 1972 was delivered from Martha L. Wisdom to Charles Madison Smith prior to her death.

Instruction: You are instructed that “Delivery” means the deed must be placed within the control of the Grantee (Charles Madison Smith) and with the intention that it become operative as a conveyance. Actual manual delivery is not necessary. No particular form of words or action is necessary to accomplish delivery. Any act or declaration of the Grantor (Martha L. Wisdom) showing an intention to give effect to an executed conveyance is sufficient. Every case must depend on its own circumstances and the relations of the parties. There must be an intention to deliver and acts sufficient to show a constructive delivery.

Answer: “It was delivered” or “It was not delivered”

Answer: It was delivered.

Question No. 4

Who do you find from a preponderance of the evidence, if anyone, to be the owner or owners of the Certificate of Deposit formerly Account No. 9002251-27-3 at Dallas Federal Savings & Loan Association, Athens, Texas, and currently Account No. 462058-27-3 at Bright Banc, Athens, Texas?

Answer: “Estate of Martha L. Wisdom” or Mildred Cecil”

Answer: Estate of Martha L. Wisdom

Based on these findings, the court signed a judgment in favor of Smith declaring, inter alia, that the April 25, 1972, deed from Decedent to Smith was delivered to Smith prior to the date of the death of the Decedent, and “is ... a valid deed; that the Estate of [Decedent] is the owner of the Certificate of Deposit ... Account No. 462058-27-3 at Bright Bank, [Bright Banc Savings] Athens, Texas.”

Cecil filed an amended motion for new trial on November 17, 1988. She alleged, inter alia, that the court erred in (1) refusing to give her requested definition of “delivery” and (2) in refusing to submit her requested Question No. 9. She further alleged that the refusal of the jury to find that Decedent did not deliver the deed to Smith “was contrary to the overwhelming weight and preponderance of the evidence[;]” that “[t]here was insufficient evidence to support the jury's finding that the Certificate of Deposit at Bright Banc Savings and Loan Association, Athens, Texas was owned by the Estate of [Decedent] ....”; that there was no evidence to support the jury’s finding that Decedent “delivered the deed ... to ... Smith”; that the evidence conclusively established that Decedent “did not deliver the deed ... to ... Smith”; that the evidence is factually insufficient to support the jury’s finding of delivery of the deed; that there is no evidence to support the finding that Decedent owned the certificate of deposit at issue; that the evidence establishes as a matter of law that the certificate of deposit “was owned by ... Cecil”; and that the evidence was factually insufficient to support the finding that Decedent’s estate owned the certificate of deposit.

Cecil presents eight points of error. By four of these points she claims that the trial court erred in not setting aside the jury’s findings that the deed in question was delivered by Decedent to Smith and that the certificate of deposit in dispute was owned by Decedent’s estate because (1)there was no evidence to support the findings, or (2) the contrary of each finding was established as a matter of law. Under two of the points of error, Cecil argues that the evidence is factually insufficient to support such findings.

It is undisputed that Cecil never directed the trial court’s attention to her motion for new trial and that the trial court never ruled on that motion. Hence, procedurally, Cecil’s motion for new trial was overruled by operation of law on January 2, 1989, pursuant to Tex.R.Civ.P. 329b(c).² Moreover, Cecil did not thereafter present any motion to the court under Rule 329b(e) seeking a new trial or any other relief from the judgment as authorized by that rule.

On this record we conclude that Cecil has not preserved the six points of error (points of error nos. 1, 2, 3, 5, 6 and 7) for appellate review in compliance with Tex.R. App.P. 52(a) which, in part, provides:

Rule 52. Preservation of Appellate Complaints.

(a) General Rule. In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or mo-tion_ (Emphasis ours.)

The record reveals as well that Cecil neither made objections under Rule 274 to the submission of jury Questions 3 and 4 on “no evidence” grounds, nor filed any motions for instructed verdict under Rule 268, nor to disregard the answers to those questions, nor for judgment non obstante veredicto on such grounds under Rule 301. Under these circumstances, we conclude that such no evidence points of error are not properly preserved for review by this court and therefore we decline to address the merits of the points for want of jurisdiction.³

We now consider Cecil’s points of error nos. 4 and 8. By her fourth point of error, Cecil argues that the court erred in giving the instruction on “delivery”⁴ accompanying jury Question No. 3.

The objection made at trial by Cecil was: Objection is made to the sentence any act or declaration of the grantor, Martha L. Wisdom, showing an intention to give effect to an executed conveyance [is] sufficient on the grounds that this is already covered in the court’s instruction, it is overly broad, duplicates the instruction given to the jury....

Cecil cites no authority in support of this point, but argues that the language objected to “[dilutes] the two legal elements of delivery” rendering those elements, viz., placing the deed under the control of the grantee with the intention to convey present title to the grantee, “meaningless.” Cecil did cite authorities under her first and second points of error dealing with the law of delivery of deeds. E.g., Tex.Prop.Code Ann. § 5.021 (Vernon 1985); Ragland v. Kelner, 148 Tex. 132, 221 S.W.2d 357 (1949), and Tyler v. Bauguss, 148 S.W.2d 912 (Tex.Civ.App.—Dallas 1941, writ dism’d judgmt cor.).

In support; of her objection to the definition of “delivery” accompanying Question 3, Cecil requested that the following definition of delivery be given, to wit:

Definition: “Delivery” means the deed must be placed within the control of the Grantee and with the intention that it become operative as a conveyance. Actual manual delivery is not necessary. Every case must depend on its own circumstances and the relations of the parties. There must be an intention to deliver and acts sufficient to show a constructive delivery.

We conclude that the definition accompanying the question is substantially correct. By that definition, the jury was instructed in accordance with the evidence that before a delivery can be found, they must be persuaded by the preponderance of the evidence that the Decedent had the intention to deliver the deed, coupled with facts sufficient to show “a constructive delivery” thereof. It is undisputed that the Decedent did not manually deliver the deed to Smith, hence the question for the jury was whether the Decedent by any combination of words or conduct constructively delivered the conveyance. The definition given correctly instructed the jury on the law of constructive delivery. Ragland v. Kelner; Hubbard v. Cox, 76 Tex. 239, 13 S.W. 170 (1890); and Henry v. Phillips, 105 Tex. 459, 151 S.W. 533, 536 (1912). Cecil’s fourth point of error is overruled.

By her eighth point of error, Cecil complains of the trial court’s refusal to submit to the jury her Question No. 9, reading: “Do you find from a preponderance of the evidence that [the disputed account] at [Bright Banc Savings] was started on September 29, 1981 with monies from [an account] owned by ... Cecil?”

In support of the point, Cecil argues that under section 438 of the Texas Probate Code,⁵ the question was a controlling issue in the case. We disagree. The requested question was included, as Smith argues, in the questions submitted. The jury by its finding in response to Question No. 4 found the disputed account to be wholly owned by the estate of Decedent contrary to Cecil’s trial contention and her own testimony. We conclude that the issue complained of was fairly submitted under Rule 277. The point of error is overruled. The judgment is affirmed.

1 . By this pleading- all parties plaintiff except Cecil were eliminated from the suit.

2 . All references to rules in this opinion are to the Texas Rules of Civil Procedure unless otherwise noted.

3 . See concurring opinion in Metot v. Danielson, 780 S.W.2d 283, 288-289 (Tex.App.—Tyler 1989, writ denied).

4 . Quoted in full on page 711 of this opinion.

5 . Tex.Prob.Code Ann. § 438(a) (Vernon 1980), reading: "A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.”