COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT
WORTH
NO.
2-05-108-CV
DEBRA RENAE DECKER,
INDIVIDUALLY APPELLANT
AND
AS SOLE HEIR AND/OR BENEFICIARY
UNDER
LAST WILL AND TESTAMENT OF
JIMMY
RAY DECKER, DECEASED, AND/OR
EXECUTOR
OF THE ESTATE OF JIMMY RAY
DECKER,
DECEASED
V.
LEROY DECKER, SR. APPELLEE
AND
LEROY DECKER, SR. APPELLANT
DEBRA RENAE DECKER, INDIVIDUALLY APPELLEES
JIMMY
RAY DECKER, DECEASED AND/OR
DECKER,
DECEASED, AND CURTIS COOPER
------------
FROM
THE 78TH DISTRICT COURT OF WICHITA COUNTY
OPINION
I. Introduction
Debra Renae Decker,
individually and as sole heir and/or beneficiary under the last will and
testament of Jimmy Ray Decker, deceased, and/or executor of the estate of Jimmy
Ray Decker, deceased (ADebra@), and Leroy Decker, Sr. (ALeroy@) appeal
from the judgment which awarded Leroy three tracts of real property and which
failed to award the motor home. We
affirm in part and affirm as modified in part.
II. Background Facts
This is an appeal from a suit
to set aside certain transfers of real property and a motor home from Leroy to
his son, Jimmy Decker (AJimmy@). On January 12, 1996, Leroy
executed a will that left his entire estate to his wife, Anna L. Decker (AAnna@), if she
survived him by thirty days. If,
however, Anna did not survive Leroy by thirty days, Leroy left his entire
estate to his three children, Rhonda, Jimmy, and Leroy, Jr. (AJunior@).
After Leroy=s wife Anna died, Jimmy and Debra, Jimmy=s wife, moved in with Leroy, in early 1999, to care for him after he
had surgeries to remove a lung and to remove a brain tumor. In January 2000, Leroy executed a second will
in which he left all of his property to his son, Jimmy alone, and executed a
power of attorney appointing Jimmy as his attorney-in-fact. Additionally, on January 31, 2000, Leroy
executed a warranty deed transferring his house and two farm properties to
Jimmy. However, Leroy continued to live with Jimmy
and Debra in the house after it was transferred to Jimmy. In January 2001, Leroy also transferred title
to a motor home to Jimmy.
On June 18, 2002, Jimmy died,
and Leroy continued to live with Debra in the house until October 7, 2002, when
Debra drew up a notice of eviction informing Leroy that he could no longer live
there. Debra also sold the motor home to
Curtis Cooper (ACooper@), her uncle. On approximately
November 7, 2002, Cooper and Charles Tipps (ACharles@), Debra=s father, went onto one of the farm properties and removed the motor
home.
Leroy then sued Debra seeking
to set aside the transfers of real property and the motor home. In regard to the transfers of real property,
the jury found that (1) the transfers were not fair, (2) Leroy was unduly
influenced, (3) Leroy lacked sufficient mind and memory at the time of the
transfers, and (4) Jimmy and Debra did not substantially rely to their
detriment on Leroy=s promise to
convey the house. In regard to the motor
home, the jury found that (1) the transfer was fair, (2) Leroy was unduly
influenced, (3) Leroy lacked sufficient mind and memory at the time of the
transfer, and (4) Cooper was not a good faith purchaser of the motor home. The trial court disregarded the jury=s answer in regard to Cooper not being a good faith purchaser because
the jury charge instructed the jury that if it found that the transfer of the
motor home was fair, then it did not need to answer the question regarding
Cooper. On December 22, 2004, the trial
court entered a judgment (1) voiding the real property deeds and quieting title
in Leroy, (2) awarding Leroy court costs and attorney fees, and (3)
disregarding the jury=s answer in
regard to Cooper as being a good faith purchaser. Additionally, the trial court found that the
power of attorney executed by Leroy created a fiduciary duty as a matter of law
as to Jimmy. However, the judgment does
not mention the disposition of the motor home.
III. Debra=s Issues on Appeal
In her first issue, Debra
complains that the trial court erred by finding that the power of attorney
created a fiduciary duty between Jimmy and Leroy as a matter of law. In Debra=s second issue, she contends that the trial court erred by refusing to
submit the issue of whether a fiduciary duty existed between Jimmy and Leroy
and that the trial court improperly commented on the weight of the
evidence. In her third issue, Debra
states that the evidence presented at trial established as a matter of law that
the transfers of real property were unfair.
In issues four through eight, Debra complains that the evidence is
legally and factually insufficient to establish that (1) the transfers of the
real property were fair, (2) the transfers of the real property were the
product of undue influence, and (3) Leroy lacked capacity to execute the deeds
transferring the real property.
A. Legal and Factual Sufficiency
We will address Debra=s fifth, sixth, seventh, and eighth issues first because they are
dispositive. See Tex. R. App. P. 47.1; Curtis v.
Curtis, 11 S.W.3d 466, 467 (Tex. App._Tyler
2000, no pet.). In her fifth and sixth
issues, Debra complains that the evidence is legally and factually insufficient
to establish that the transfers of real property were the product of undue
influence. Additionally, in her seventh
and eighth issues, she contends that the evidence is legally and factually
insufficient to establish that Leroy lacked capacity when he executed the deeds
to the real property.
B. Standard of Review
A legal sufficiency challenge may only be sustained
when (1) the record discloses a complete
absence of evidence of a vital fact, (2) the court is barred by rules of law or
of evidence from giving weight to the only evidence offered to prove a vital
fact, (3) the evidence offered to prove a vital fact is no more than a mere
scintilla, or (4) the evidence establishes conclusively the opposite of a vital
fact. Uniroyal Goodrich Tire Co. v.
Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S.
1040 (1999); Robert W. Calvert, "No
Evidence" and "Insufficient Evidence" Points of Error,
38 TEX. L. REV. 361, 362-63 (1960). In determining whether there is legally
sufficient evidence to support the finding under review, we must consider
evidence favorable to the finding if a reasonable fact-finder could, and
disregard evidence contrary to the finding unless a reasonable fact-finder
could not. City of Keller v. Wilson,
168 S.W.3d 802, 827 (Tex. 2005).
An assertion that the
evidence is factually insufficient to support a fact finding means that the
evidence supporting the finding is so weak or the evidence to the contrary is so
overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823
(Tex. 1965). We are required to consider
all of the evidence in the case in making this determination, not just the
evidence that supports the finding. Mar.
Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied,
525 U.S. 1017 (1998).
C. Applicable Law
For there to be undue
influence in the execution of an instrument, there must be such dominion and
control exercised over the mind of the person executing such instruments, under
the facts and circumstances then existing, as to overcome his free agency and
free will, and to substitute the will of another so as to cause him to do what
he would not otherwise have done but for such dominion and control. Bailey v. Arlington Bank & Trust Co.,
693 S.W.2d 787, 789 (Tex. App._Fort Worth 1985, no writ); Bd. of Regents of Univ. of Tex. v.
Yarbrough, 470 S.W.2d 86, 92 (Tex. Civ. App._Waco
1971, writ ref=d n.r.e.).
The law presumes that the
grantor of a deed has sufficient mental capacity at the time of its execution
to understand his legal rights; therefore, the burden of proof rests on those
seeking to set aside the deed to show lack of mental capacity of the grantor at
the time of the execution of the deed.
Jackson v. Henninger, 482 S.W.2d 323, 324-25 (Tex. Civ. App._Austin
1972, no writ). The term Amental capacity@ means that
the grantor at the time of the execution of the deed must have had sufficient
mind and memory to understand the nature and effect of his act. Id. at 325. To demonstrate the state of the grantor=s mental capacity at the time of the conveyance, evidence of his
mental capacity prior and subsequent to the time of the conveyance is
admissible. Id.; see also
Haile v. Holtzclaw, 414 S.W.2d 916, 926 (Tex. 1967); Cole v. Waite, 151 Tex. 175, 246
S.W.2d 849, 852 (1952). Additionally,
the requisite proof regarding mental capacity is within the common knowledge
and experience of laypersons and therefore, expert medical testimony is not
required. See Estate of Riggins,
937 S.W.2d 11, 19 (Tex. App._Amarillo 1996, writ denied).
D. Applicable Facts
At trial, Brandon Leroy
Decker (ABrandon@), Leroy=s grandson, testified that Leroy was a Alittle slow getting around@ after he had brain surgery.
Brandon testified that after Jimmy and Debra moved into Leroy=s house, he saw a Achange@ in Leroy,
and Leroy appeared to be depressed. He
stated that Jimmy and Debra treated Leroy good some days and bad other
days. Brandon said that Jimmy and Debra
would be rude to Leroy sometimes and that they got tired of caring for
him. While visiting Leroy, Brandon would
hear Jimmy and Debra tell Leroy that they were not going to give John, Leroy=s grandson, any more money and that Rhonda and Junior did not care
about him because they never came to visit him.
Brandon stated that on one occasion, Leroy bought John a Seedoo as a
present, and when John came back from college, John found out that Jimmy and
Debra had sold it without his knowledge.
Brandon testified that Jimmy
or Debra would write out the checks for the bills and have Leroy sign
them. He said that Leroy typically did
not look over the checks before he signed them.
Brandon stated that after Jimmy and Debra moved in, they removed all of
Leroy=s household furnishings and moved all of their belongings into Leroy=s house and that he did not know where Leroy=s belongings were.
Additionally, Brandon stated
that at the time Jimmy and Debra were living with Leroy, Leroy would go on
vacations with Olene, Leroy=s girlfriend, and that Leroy would drive the motor home. He further stated that Leroy would feed cows
and fix the barbed wire fence at the farm properties during the time of his
depression. Additionally, Brandon
testified that after Jimmy died, Leroy became more alert, and he was not as
depressed. He stated that Leroy gets
around on his own, that he lives by himself, and that he can drive himself.
Debra testified that she and
Jimmy had financial problems when they moved in with Leroy. She stated that they moved into Leroy=s house because Leroy was not properly caring for himself, he was not
eating or taking care of his clothes, and he was not keeping the house
clean. Debra said that Leroy=s health problems included a loss of balance, arthritis, and
diminished lung capacity. Additionally,
in early 1999, Leroy had surgery to treat brain cancer. She further stated that after she and Jimmy
moved in with Leroy, they experienced problems with Leroy interfering with
their privacy (i.e., Leroy would answer the telephone). When Jimmy and Debra were living with Leroy,
Leroy would occasionally leave them money.
Debra testified that Leroy would leave her money on the counter for
cleaning the house, and he would give Jimmy approximately $1,000 to $1,200 a
month for his help with the farm properties. Additionally, Leroy would sign
every bill that was put in front of him to sign.
Debra stated that Leroy told
Jimmy and her that they could have the house.
Debra said that Charles, her father, gave Jimmy and her $25,000 as a
gift from an inheritance that he had received.
She further stated that after they accepted the gift of the house and
the $25,000, they began remodeling the house and spent approximately $25,000 to
$30,000 on the remodeling. Additionally, Jimmy and Debra furnished the house
with their own belongings, except Leroy=s room, which was furnished with his belongings.
Debra testified that both she
and Jimmy gave Leroy his pain medication, but she denied ever giving him
medicine that was not prescribed to him by an American doctor. She stated that in late 1999 and early 2000,
Leroy could operate a vehicle by himself.
She denied preventing Rhonda and Junior from visiting Leroy. Debra admitted that Leroy invested a considerable
amount of money in the stock market.
However, she testified that she did not make any transactions on or
withdrawals from Leroy=s Merrill
Lynch funds without his knowledge.
In regard to the deed
transfers, Debra testified that there was no link between the transfer of the
properties and the caring for Leroy.
Leroy told her that he was conveying the properties to Jimmy and
excluding Rhonda and Junior because he was upset that they did not pay any
attention to him. Additionally, Leroy
told her that he missed visiting with Rhonda and Junior. She stated that when Leroy went to Jim Ammons=s (AAmmons@), his attorney=s, office,
he was suffering from chronic pain in his back and knees, arthritis, and
depression and that he appeared to be in more pain than before. In January
2000, Leroy executed the deeds conveying the two farm properties and the house
to Jimmy, a revocation of the previous trust that he and Anna had created, and
a directive to physicians. Debra
testified that in January 2000, she did not see any indication that Leroy
lacked mental capacity. She stated that he did what he wanted to and
that he could not be easily influenced by anyone.
Debra testified that on June
18, 2002, Jimmy died of hepatitis C.
After Jimmy died, Leroy and she continued to live in the same house;
however, Rhonda also moved into the house with them. Debra stated that after Rhonda moved in,
things began to change, and the house became more Aabrasive.@ Debra
stated that after Jimmy died, Leroy,
Rhonda, and Junior began removing Jimmy=s things from the house without her knowledge, so she prepared an
eviction notice for Leroy. In the eviction notice, she told Leroy that
she was claiming exclusive possession of the house and was excluding Leroy from
it. She gave Leroy a certain date that he had to
be out of the house, and he complied with her request to leave. However, Debra admitted that Leroy might have
expected to live in the house until his death when he conveyed it to Jimmy. Additionally, Debra did not believe that the
two farm properties and the house belonged to Leroy after the conveyances.
Roy Marshall (ARoy@), Leroy=s neighbor, testified that in 1980 he moved across the street from
Leroy. In 2000, after Jimmy and Debra
moved in with Leroy, Roy saw a dramatic change in Leroy=s behavior. Roy testified that
Leroy was not moving around as well, became lethargic, would sleep more, seemed
groggy when he woke up, and appeared to be Adoped.@ Further, Roy stated that in the summer of
2000, on at least five occasions, he would come home and see Leroy on the front
porch of his house sleeping and drenched in sweat. Roy said that he would go
over, wake up Leroy, and help him inside the house. Additionally, Roy testified
that during a conversation with Jimmy, Jimmy told him that Leroy was going to
live in the house and give it to Jimmy and Debra when he died. Roy stated that Jimmy told him that he and
Debra were going to take care of Leroy.
Leroy testified that he never
intended to transfer ownership of his house to Jimmy before his death and that
he did not recall signing the deeds conveying the house and farm
properties. He stated that in 1996, he
had a revocable trust with Anna and a will naming her primary heir and that
Jimmy was the executor of that will. In
1999 or 2000, Leroy said that he had approximately $500,000 in the stock market
and that even though he had a stock broker, he made the decisions in regard to
his stock portfolio. Leroy further
testified that during this time, he paid off a house and bought a business for
Junior, bought two notes on a land deal for Rhonda, and drove down to the
Valley with Olene on several occasions.
Leroy further stated that he had a Afaint remembrance@ of being in Ammons=s office.
Charles, Debra=s father, testified that he was going to give Jimmy and Debra $30,000
for a down payment for a house. He
stated that after looking at two houses seriously, Jimmy and Debra decided to
move in with Leroy instead. Charles
testified that Leroy told him that he transferred two farm properties and the
house to Jimmy because Junior and Rhonda had not come to see him in four
years. After Leroy conveyed the house to
Jimmy and Debra, Charles testified that he gave the $30,000 to Jimmy and Debra
to remodel the house and that he actually paid more than that on the
remodeling. However, Charles testified
that Leroy indicated that Jimmy, Debra, and Leroy were going to live in the
house together. Additionally, Charles
stated that in 1999 and 2000, he did not see anything that made him think that
Leroy did not know what he was doing.
At trial, Ammons testified
that during his first consultation with Leroy, Leroy indicated that he was mad
at Rhonda and Junior because they did not come visit him and that he wanted to
give his house to Jimmy and Debra. He stated that because Leroy had all of the
property in the revocable trust, the first thing that needed to be done was to
remove the property from the trust.
During the discussions, Leroy said that he did not want to retain a life
estate in the house or the farm properties.
Ammons could not remember if Leroy wanted any strings attached to the
transactions. Ammons stated that during
the more than two visits that he had with Leroy, despite Leroy=s physical problems (i.e., Leroy walked with a cane), he did not see
anything wrong with Leroy=s mind,
could not tell if he was on medication, and did not think that Leroy appeared
groggy. He stated that he would not have
allowed Leroy to execute the deeds if he thought that Leroy was being unduly
influenced. Additionally, Ammons
testified that he believed Leroy was aware of what he was signing on January
26; however, Ammons did not have any personal recollection as to whether he was
present on January 31 when the other documents were signed. However, Ammons said that most of the
documents that Leroy executed were substantially beneficial to Jimmy.
E. Analysis
Debra argues that there was
no evidence presented at trial that established that Leroy lacked capacity and
was unduly influenced to execute the deeds.
Debra cites Ammons=s testimony
that he did not see any evidence that Leroy was being unduly influenced as
support for her contention. Ammons stated that on January 26, he believed
that Leroy was aware of what he was signing.
However, Ammons could not recall if he was even present when the January
31 documents were signed, he admitted that most of the documents that he
prepared were substantially beneficial to Jimmy, and he said that either Jimmy
or Debra were present during all of the meetings he had with Leroy.
Additionally, Brandon and Roy
testified that after Jimmy and Debra moved in with Leroy, they noticed a change
in Leroy=s behavior and demeanor.
Brandon and Roy both stated that Leroy became more lethargic and that he
seemed depressed. Roy testified that
Leroy appeared to be groggy when he would visit him and that he would find
Leroy asleep outside on the porch in the middle of the summertime. Leroy stated that he did not intend to
transfer the farm properties or his home before his death and that he did not
remember signing the deeds to the properties.
After Leroy moved out, Brandon and Roy testified that he was less
depressed and can do things on his own now that he could not do when he was
living with Jimmy and Debra (i.e., Leroy could drive and live by himself).
Further, Leroy was suffering
from mental and physical problems at the time of the deed transfers. Debra stated that Leroy was suffering from
depression, arthritis, and chronic pain in his back and knees. Additionally, Debra stated that she and Jimmy
would fill Leroy=s pill
bottle with his medications, but she denied giving him any medication that was
not prescribed to him. However, Brandon
testified that Leroy would take the medication given to him by Jimmy and Debra
without inquiring into what the medication was or if it was prescribed to
him. Debra and Brandon further stated
that Leroy would sign any check that was put in front of him to sign by Debra.
We hold that the evidence,
when viewed in the light most favorable to the verdict, supports a
determination that Leroy was unduly influenced and that he lacked the mental
capacity to transfer title to the farm properties and the house to Jimmy at
that time; therefore, we overrule Debra=s fifth and seventh issues.
Additionally, when viewed neutrally, the evidence is not so obviously
weak or so greatly outweighed by contrary evidence that it would not support
the jury=s verdict. Thus, we overrule
Debra=s sixth and eighth issues.
Having held that the jury=s determination that Leroy was unduly influenced and lacked the
capacity to transfer the property was proper, we need not address her remaining
issues regarding the transfers. See Tex. R. App. P. 47.1.
IV. Leroy=s Appeal
In Leroy=s first issue, he contends that he is entitled to a judgment that
conforms to the jury=s verdict in
regard to the motor home. Leroy specifically claims that because the
jury found that the transfer of the motor home was the result of undue
influence, the judgment should set aside the transfer of the motor home to
Jimmy. In his second issue, Leroy complains that he
is entitled to have Athe judgment
framed as to give [him] all the relief to which he may be entitled either in
law or equity.@
A. Applicable Facts
On January 29, 2001, Leroy transferred the motor home to
Jimmy at the Department of Public Safety office. At trial, Debra testified that Leroy had the
title to the motor home put in Jimmy=s name after she
and Jimmy told Leroy that the title should be transferred for insurance
purposes. However, Debra also stated
that Leroy gave Jimmy the motor home because it was too hard for Leroy to
handle and because he did not feel comfortable driving it anymore.
She further stated that after Jimmy died, she sold the motor home to Cooper to
settle Jimmy=s estate.
Debra testified that she used the proceeds of the sale of the motor home
to pay off the purchase money lien against her Jeep. She stated that the motor home was on one of
the farm properties and that there were locks on the barn when Cooper and
Charles went to remove it. Debra
testified that Cooper and Charles had to cut the locks to get the motor home
out of the barn. Additionally, Debra
testified that Leroy claimed an interest in the motor home when she sold it to
Cooper.
Cooper testified that he purchased the motor home from
Debra for $17,000. He stated that the
motor home was inside a barn on a farm property and that he had to cut the
locks on the barn to get the motor home out.
Additionally, he said that there was a tractor that was blocking the
barn door, and Charles had to call a friend to come out with a wrecker so that
the tractor could be moved. Cooper
testified that he did not know that Leroy was claiming an interest in the motor
home until after Debra had transferred the title to him. Additionally, he
stated that Leroy had told him that he was giving the motor home to Jimmy
because it was uncomfortable for him to drive it any longer.
Leroy stated that he never intended to transfer the
ownership of the motor home before he died.
Further, Roy stated that Jimmy told him that the motor home was going to
be put in Jimmy=s name to lower the insurance rates. On November 5, 2004, the
jury found that (1) the transfer of the motor home was fair, (2) Leroy was
unduly influenced to transfer title to the motor home, (3) Leroy lacked
sufficient mind and memory to understand the nature of transferring the motor
home, and (4) Cooper was not a good faith purchaser of the motor home. Debra then filed a motion for JNOV and a
motion to disregard the jury findings, to which Leroy responded. In a December 22, 2004 judgment, the trial
court did not quiet title to the motor home in Leroy or impose a constructive
trust as Leroy had requested. In addition, the order states that the trial
court disregarded jury question number sixC whether or not Cooper was a good faith purchaser of the motor
home. In fact, the judgment does not
award the motor home to Debra or Leroy.
C. Analysis
Leroy complains that there
was sufficient evidence to support the jury=s verdict that he was unduly influenced to transfer title to the motor
home to Jimmy. Leroy argues that the
trial court should have voided the transfer of the motor home from Leroy to
Jimmy and from Debra to Cooper.
Alternatively, he contends that Debra=s Jeep should be held in constructive trust and that the title to the
Jeep should be transferred to him.
As stated above, a person is
unduly influenced to execute an instrument when there is such dominion and
control exercised over the mind of the person, under the facts and
circumstances then existing, as to overcome his free will and to substitute the
will of another so as to cause him to do what he would not otherwise have
done. Bailey, 693 S.W.2d at 789.
At trial, Leroy testified
that he never intended to transfer the motor home to Jimmy until after Leroy
died. Additionally, Debra stated that
Leroy only transferred the title after she and Jimmy told Leroy that he should
transfer it to lower the insurance rates.
Roy testified that Jimmy told him that they transferred the title to
lower the insurance rates. After
reviewing the evidence, we determine that there was sufficient evidence to
support the jury=s finding
that the transfer of the motor home was the result of undue influence. Additionally, a finding that a transaction is
unfair is not a necessary element of undue influence unless a confidential
relationship exists (i.e., husband-wife).
See Bohn v. Bohn, 455 S.W.2d 401, 410-11( Tex. Civ. App.CHouston [1st Dist.] 1970, writ dism=d). We hold that the jury=s finding that Leroy was unduly influenced to transfer title to the
motor home to Jimmy is enough to set aside the transaction.
Additionally, Cooper had the
burden of proof to establish that he was a bona fide purchaser of the motor
home, that he was a subsequent purchaser, who paid value, and that he had no
notice of the dispute between Leroy and Debra.
See, e.g., Raposa v. Johnson, 693 S.W.2d 43, 46 (Tex. App.CFort Worth 1985, writ ref=d n.r.e.) (stating bona fide purchaser under deed had burden of proof
of secure finding that he was a bona fide purchaser); Medley v. Medley,
683 S.W.2d 877, 879 (Tex. App.CCorpus Christi 1984, no writ) (holding burden of proof is on bona fide
purchaser). If a subsequent purchaser
cannot show himself to be a bona fide purchaser, then he acquires only the
rights that his grantor had. See
Hartel v. Dishman, 135 Tex. 600, 145 S.W.2d 865, 869 (1940). The charge instructed the jury to only answer
the bona fide purchaser question if it found that the transfer of the motor
home from Leroy to Jimmy was not fair.
However, the jury answered that the transfer was fair, and therefore,
could not have answered the bona fide purchaser question. Accordingly, because Cooper failed to secure
a finding that he was a bona fide purchaser of the motor home, he acquired only
the rights that Debra, his grantor, had in regard to the motor home.
We hold that the trial court
should have addressed the issue of title to the motor home. Accordingly, because there is no bona fide
purchaser finding and the jury found that Leroy was unduly influenced to
transfer title to the motor home, the trial court should have quieted title to
the motor home in Leroy. Thus, we
sustain Leroy=s first and
second issues.
V. Conclusion
Having overruled Debra=s fifth, sixth, seventh, and eighth issues, and having sustained Leroy=s first and second issues, we modify the trial court=s judgment regarding the motor home and render a judgment quieting
title to the motor home in Leroy. We
affirm the judgment as modified.
TERRIE LIVINGSTON
JUSTICE
PANEL B: LIVINGSTON, GARDNER,
and WALKER, JJ.
DELIVERED: April 13, 2006
On
January 26, 2000, Leroy executed warranty deeds transferring the property to
himself from his revocable trust so that he could transfer the properties to
Jimmy.
Brandon
testified that he saw some of Leroy=s belongings in a trailer
house and at one of Leroy=s
farm properties.
There
was some question as to whether Jimmy and Debra gave Leroy pain medicine that
they would purchase in Mexico. Debra
testified that the pharmacist in Mexico would write out a prescription of the
medication they wanted and then fill it.
Debra testified that she and Jimmy would go to Mexico to get medicine;
however, no medicine was purchased for Leroy.
On
January 26, 2000, Leroy executed warranty deeds transferring his two farm
properties and his house to himself from the Leroy Decker Family Trust. On January 31, 2000, Leroy then executed
warranty deeds on the three properties and transferred the properties to Jimmy.
Debra
stated that the missing items included the boat insurance and car insurance
records, bank statements, and photographs of Jimmy.
Debra
testified that she and Jimmy were actually going to ask Leroy to move out
before Jimmy=s
death because Debra could not care for both Leroy and Jimmy. She testified that she told Leroy that there
was a possibility that he was going to have to move out of the house before
Jimmy=s
death.
Jimmy
was present during the first consultation.
This
is the only evidence that Debra points to in her brief.
In
Leroy=s
brief, he argues that the trial court erred in entering the judgment
notwithstanding the verdict. However,
after reviewing the brief, it is apparent that Leroy is complaining that the
trial court did not enter an order regarding the disposition of the motor
home.
In
the charge, the jury was also asked whether the transfer of the motor home was
fair and whether Leroy had sufficient mind and memory when the transfer was
made. However, Leroy bases his appeal on
the jury=s
response to question number twoC whether he was unduly
influenced to transfer the motor home to Jimmy.
Therefore, we will address this issue as to whether Leroy was unduly
influenced at the time of the transfer.
Debra
testified that Leroy would go out and sit in the motor home when it was parked
outside of their house.
The
order does not mention the motor home.