Diana Fay Bass v. Richard H. Bass
Opinion
Court of Appeals
DEC 2 i 2015 NO.05-15-O1362-CV Lisa Mate Clerk, 5th District
IN THE COURT OF APPEAL FOR THE FIFTH DISTRICT OF
TEXAS AT DALLAS
FOR THE 401st DISTRICT COURT OF COLLIN COUNTY, TEXAS
DIANA FAY BASS, APPELLANT
VS.
RICHARD HILL BASS, APPELLEE
"APPELLANT'S BRIEF"
PARTY FILING BRIEF- DIANA FAY BASS
Appellant Diana Fay Bass Pro Se Litigant (972) 213-6095 P.O. Box 432 db424fzfz@live.com McKinney, Texas 75070
Appellee Richard Hill Bass Attorney Hannah Stroud Philips & Epperson Attorneys 2301 Virginia Parkway hstroud@philipandepperson.com McKinney, Texas 75071
(972) 562-9440
APPELLANT REQUEST ORAL ARGUMENT, Trap 9.4 (g), 39.7. Request 20 minutes, Appellant may not be presenter APPELLANT DIANA BASS
TABLE OF CONTENTS
TABLE OF CONTENTS
1. Table of contents
4. Case Summary
5. Appellant's Summary
6. Conclusion
7. Prayer Honorable Judge Mark Rusch, Collin County 401st District Court, trial judge, signed the orders for Emergency Ex Parte Motion for Appointment of Receiver and, Alternative, Emergency Motion to Compel Respondent to Comply with Terms of the Mediated Settlement Agreement; Affidavit in Support of Emergency Ex Parte Motion for Appointment of Receiver and, Alternatively, Emergency Motion to Compel Respondent to Comply with Terms of the Mediated Agreement; Order on Motion for Emergency Ex Parte Motion for Appointment of Receiver; and Motion for Appointment of Receiver, and Alternatively, Motion to Order Respondent to Comply with Terms of the Mediated Settlement Agreement; dated November 2, 2015.
CASE SUMMARY
WITH THIS BRIEF, Appellant, Diana Fay Bass (DFB), she argues the Ex Parte Hearing gave Power of Attorney (for 30 days) to sign anything Richard Bass chose to sign, over to the very person that performed intentional acts of fraud against her, including Mediated Settlement Agreement (MSA) and the Divorce Settlement. Appellee claimed imminent need to sell homestead due to foreclosure, not true, the buyer just had to make sure he got the property cheap and for his development. Richard Bass used that power of attorney to continue with his fraud (and refuses to give all documents he signed), illegal.
Appellant's homestead and separate property were sold, with this Power of Attorney given to a buyer/developer and Richard Bass that had committed fraud, and breach of contract to Diana Bass. Selling this property was totally against her will, and of which she refused to sign any documents, which would have been more fraud committed against her. Diana Bass Constitutional right to her sole and separate property (by gift) was violated, and her homestead was given away. Diana Bass received monies for. There was no emergency.
The judge signed order Friday afternoon, therefore, Appellant was not told until Monday, at 8:15 a.m., notice by telephone. The order was signed for hearing Friday around 4:30 p.m. The Judge refused to sign any of Appellants orders to oppose MSA. The only emergency was, that would that the lender would foreclose (on one half of the house). They needed Appellants signature to complete the fraud against me, and the judge gave it to them, and Appellant claims serious abuse of courts discretion. My rights were violated as a citizen and defendant.
Richard Bass refuses to give me copies of all the documents he signed illegally without my permission. Demand for discovery will be filed.
Richard Bass agreed in settlement to pay $170,000.00 to Appellant after illegally signing selling her sole, separate and community properties, so he actually violated the agreement. MSA void.
Fraud, lies, coercion, duress, intentional misrepresentation of material facts (such as Diana Bass was co-trustee, co-grantor, co- beneficiary), MSA void. Trust in Texas have very specific laws, any attorney should have known that, Richard Bass violated many trust laws, and the documents he signed with Power of Attorney was to close trust, and cover up his fraud upon the estate.
Appellee, gifted intentionally, during marriage of 17 plus years, via Bass Living Trust, with recorded deeds, litigants as co-owners, joint bank account to manage trust and its monies, and comingling of everything,. Land was cleared of trees and brush, rental properties remodeled together, and property rented many times. Character changed when gifted to Appellant in trust documents, recorded deeds, income taxes filed. There is no need for tracing as it was very clear where funds went, there was a joint trust and business bank account.
Richard Bass breached contracts for sale of properties, but he could not sell the homestead and Appellants separate property without her signature, the contract on homestead was up that day. We had jointly signed contracts to sell all significant assets, Appellee sold illegally the land as one of the trustees, without Appellants knowledge, violating trust laws and provisions. Texas trust laws are very serious in this state.
The Mediated Settlement Agreement is a legal contract, except when obtained thru fraud, duress, coercion, threats, "no meeting of the minds", and intentional lies. Separate or community property or property division was intentionally not written into this contract, nor Divorce Settlement. Property division and money division are the essential elements MSA.
Common land and constructive fraud was committed by Richard Bass against Appellant. He sold the properties without informing Diana Bass, took money and hid it, and then closed trust with Power of Attorney. Well thought out crime, property and monies theft, and stealing from trust. Property was not his sole and separate properties, it was intentional fraud in MSA to state so. Not giving Diana Bass one- half her share or basically any monies to date, with Appellant as beneficiary, trustee, and grantor of Bass Living Trust is illegal, and subject to further litigation.
While theft of properties and monies has taken place against her, Appellant has had to file indigency, cannot get an attorney pro bono, and has affected her right to justice. Living cost, insurance premiums, medical bills past and present (which need to be paid), prescription cost, limited food, car expenses, clothing expenses, Diana Bass living well below the means she did previously. Appellee states "we were separated three years", not true, toxic mold in homestead, she had to move. Diana Bass has serious exposure to toxic mold, (see exhibit), and needs to move now to a clean non-toxic environment now, and receive medical care, but cannot due to lack of funds. Also, both of her homes were sold illegally, and she will be evicted any moment, without any funds to move. Diana Bass r.n., Appellant is on Social Security Disability only, and due to two very serious health conditions, requiring very expensive treatments every three weeks., shecannot work. She needs serious medical and a clean non-toxic environment now. Money received from this case will affect herfuture, and ability to even live day to day. Lack of adequate attorney access is contributing to the injustice of it all, including unneeded stress and increase in medical treatments due to constant work on this case. Appellant request for court to order pro bono attorney to defend. APPELLANT'S ISSUES PRESENTED
!. Mediated Settlement Agreement is void due to fraud, lies, "ambiguous in nature", did not include property division in written contract, misrepresentation, malicious intent to deceive, and unfair and unjust, coercion, and severe duress (torture) and threats by mediatory and my own attorney. Seventeen plus years of marriage at the minimum community. Judge did not have right to give Power of Attorney.
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Court of Appeals
DEC 2 i 2015 NO.05-15-O1362-CV Lisa Mate Clerk, 5th District
IN THE COURT OF APPEAL FOR THE FIFTH DISTRICT OF
TEXAS AT DALLAS
FOR THE 401st DISTRICT COURT OF COLLIN COUNTY, TEXAS
DIANA FAY BASS, APPELLANT
VS.
RICHARD HILL BASS, APPELLEE
"APPELLANT'S BRIEF"
PARTY FILING BRIEF- DIANA FAY BASS
Appellant Diana Fay Bass Pro Se Litigant (972) 213-6095 P.O. Box 432 db424fzfz@live.com McKinney, Texas 75070
Appellee Richard Hill Bass Attorney Hannah Stroud Philips & Epperson Attorneys 2301 Virginia Parkway hstroud@philipandepperson.com McKinney, Texas 75071
(972) 562-9440
APPELLANT REQUEST ORAL ARGUMENT, Trap 9.4 (g), 39.7. Request 20 minutes, Appellant may not be presenter APPELLANT DIANA BASS
TABLE OF CONTENTS
TABLE OF CONTENTS
1. Table of contents
4. Case Summary
5. Appellant's Summary
6. Conclusion
7. Prayer Honorable Judge Mark Rusch, Collin County 401st District Court, trial judge, signed the orders for Emergency Ex Parte Motion for Appointment of Receiver and, Alternative, Emergency Motion to Compel Respondent to Comply with Terms of the Mediated Settlement Agreement; Affidavit in Support of Emergency Ex Parte Motion for Appointment of Receiver and, Alternatively, Emergency Motion to Compel Respondent to Comply with Terms of the Mediated Agreement; Order on Motion for Emergency Ex Parte Motion for Appointment of Receiver; and Motion for Appointment of Receiver, and Alternatively, Motion to Order Respondent to Comply with Terms of the Mediated Settlement Agreement; dated November 2, 2015.
CASE SUMMARY
WITH THIS BRIEF, Appellant, Diana Fay Bass (DFB), she argues the Ex Parte Hearing gave Power of Attorney (for 30 days) to sign anything Richard Bass chose to sign, over to the very person that performed intentional acts of fraud against her, including Mediated Settlement Agreement (MSA) and the Divorce Settlement. Appellee claimed imminent need to sell homestead due to foreclosure, not true, the buyer just had to make sure he got the property cheap and for his development. Richard Bass used that power of attorney to continue with his fraud (and refuses to give all documents he signed), illegal.
Appellant's homestead and separate property were sold, with this Power of Attorney given to a buyer/developer and Richard Bass that had committed fraud, and breach of contract to Diana Bass. Selling this property was totally against her will, and of which she refused to sign any documents, which would have been more fraud committed against her. Diana Bass Constitutional right to her sole and separate property (by gift) was violated, and her homestead was given away. Diana Bass received monies for. There was no emergency.
The judge signed order Friday afternoon, therefore, Appellant was not told until Monday, at 8:15 a.m., notice by telephone. The order was signed for hearing Friday around 4:30 p.m. The Judge refused to sign any of Appellants orders to oppose MSA. The only emergency was, that would that the lender would foreclose (on one half of the house). They needed Appellants signature to complete the fraud against me, and the judge gave it to them, and Appellant claims serious abuse of courts discretion. My rights were violated as a citizen and defendant.
Richard Bass refuses to give me copies of all the documents he signed illegally without my permission. Demand for discovery will be filed.
Richard Bass agreed in settlement to pay $170,000.00 to Appellant after illegally signing selling her sole, separate and community properties, so he actually violated the agreement. MSA void.
Fraud, lies, coercion, duress, intentional misrepresentation of material facts (such as Diana Bass was co-trustee, co-grantor, co- beneficiary), MSA void. Trust in Texas have very specific laws, any attorney should have known that, Richard Bass violated many trust laws, and the documents he signed with Power of Attorney was to close trust, and cover up his fraud upon the estate.
Appellee, gifted intentionally, during marriage of 17 plus years, via Bass Living Trust, with recorded deeds, litigants as co-owners, joint bank account to manage trust and its monies, and comingling of everything,. Land was cleared of trees and brush, rental properties remodeled together, and property rented many times. Character changed when gifted to Appellant in trust documents, recorded deeds, income taxes filed. There is no need for tracing as it was very clear where funds went, there was a joint trust and business bank account.
Richard Bass breached contracts for sale of properties, but he could not sell the homestead and Appellants separate property without her signature, the contract on homestead was up that day. We had jointly signed contracts to sell all significant assets, Appellee sold illegally the land as one of the trustees, without Appellants knowledge, violating trust laws and provisions. Texas trust laws are very serious in this state.
The Mediated Settlement Agreement is a legal contract, except when obtained thru fraud, duress, coercion, threats, "no meeting of the minds", and intentional lies. Separate or community property or property division was intentionally not written into this contract, nor Divorce Settlement. Property division and money division are the essential elements MSA.
Common land and constructive fraud was committed by Richard Bass against Appellant. He sold the properties without informing Diana Bass, took money and hid it, and then closed trust with Power of Attorney. Well thought out crime, property and monies theft, and stealing from trust. Property was not his sole and separate properties, it was intentional fraud in MSA to state so. Not giving Diana Bass one- half her share or basically any monies to date, with Appellant as beneficiary, trustee, and grantor of Bass Living Trust is illegal, and subject to further litigation.
While theft of properties and monies has taken place against her, Appellant has had to file indigency, cannot get an attorney pro bono, and has affected her right to justice. Living cost, insurance premiums, medical bills past and present (which need to be paid), prescription cost, limited food, car expenses, clothing expenses, Diana Bass living well below the means she did previously. Appellee states "we were separated three years", not true, toxic mold in homestead, she had to move. Diana Bass has serious exposure to toxic mold, (see exhibit), and needs to move now to a clean non-toxic environment now, and receive medical care, but cannot due to lack of funds. Also, both of her homes were sold illegally, and she will be evicted any moment, without any funds to move. Diana Bass r.n., Appellant is on Social Security Disability only, and due to two very serious health conditions, requiring very expensive treatments every three weeks., shecannot work. She needs serious medical and a clean non-toxic environment now. Money received from this case will affect herfuture, and ability to even live day to day. Lack of adequate attorney access is contributing to the injustice of it all, including unneeded stress and increase in medical treatments due to constant work on this case. Appellant request for court to order pro bono attorney to defend. APPELLANT'S ISSUES PRESENTED
!. Mediated Settlement Agreement is void due to fraud, lies, "ambiguous in nature", did not include property division in written contract, misrepresentation, malicious intent to deceive, and unfair and unjust, coercion, and severe duress (torture) and threats by mediatory and my own attorney. Seventeen plus years of marriage at the minimum community. Judge did not have right to give Power of Attorney. Hearing was illegal, unjust and unfair, and certainly not protecting Diana Bass right as a defendant. Court abused its discretion. 2. Appellee committed (Diana Bass being all three) fraudulent transfer of properties and monies, violating common and constructive law.
3. Unequal and unjust property division in a marriage via MSA. 4. Ex Parte Hearing violated Constitutional and Texas laws, violating homestead and separate property rights, and right to equal justice, under the law.
5. Appellee, deliberately intended to cause tax liability to Appellant's, by adding " innocent spouse" may not be used, put into divorce decree after stating "he would pay all taxes." Again, deliberate deception. The land was sold without her knowledge, and allowing this deduction is important. Another example of fraud in MSA.
6. This property was a major significant asset, and Richard Bass signed document on his half of the home and one acre to allow short sale and foreclose. This was illegal for Richard Bass to do so, Diana Bass argues continued fraud upon her. He was not the sole and separate owner of the property.
7. Cruelty in a divorce, including all proceeding, documents, Power of Attorney, no spousal support, no community medical bills being paid, fees being paid by the buyer/developer, while requiring Diana Bass to represent herself, which is spousal abuse. Appellant argues "unfair, unjust, and illegal" intentional actions of spouse against her, including Ex Parte Hearing.
8. Power of Attorney was not in settlement Diana Bass signed, MSA papers were substituted and added after the facts, note on initials, etc..
APPELLANT'S ARGUMENTS
Appellant argues Mediated Settlement Agreement, are subject to avoidance on the grounds iffraudulent agreement. (1) Fraudulent inducement "is a particular species of fraud that arises only in the context of a contract and requires the existence of a contract as part of the proof,'. 12A Tex. Jur. 3d Compromise and Settlement 18 (see App.l).
Mediated Settlement Agreement must be complete and within the contract, every material detail, which contain all the elements of the contract. Not including what is separate, community, or both in agreement immediately voids contract. Appellant raises general issue of material fact that Richard Bass claim that the acreage from Bass Living Trust (Exhibit B), was his sole and separate property, from Bass Family trust (2004) to Richard Bass, then Richard Bass to the Bass Family Living Trust to Vintage Place Funds with sale of lands estimated 8.3 acres (sold $945,000.00, 7.3 acres sold warranty deed for $10.00, dependent upon approval planning and zoning.
Someone need only point out evidence that raises a fact issue on the challenged elements, Hamilton vs. Wilson, 249 S.W., 3d 425, 426 (Tex. 2008), (see App 2) is asserting claims in this case during divorce proceedings, Barr v. Resolution Trust, 837 W. 2d, 627,631 (Tex. 1992) (see App 3). Any claims that arises out of these facts should be litigated in the same lawsuit, subject matter is based on the factual matter that makes up the complaint.
Parties in this appeal had "joint management of the properties," which makes tort liabilities or contract liabilities of either spouse, example-joint banking accounts, comingling of everything, joint business, and trust, recorded deeds, etc..
Richard Bass made argument that the character rules gave him the property as sole and separate. The Bass Living Trust put into writing designation the property (land and Graves property), and the farm property that was sold, and the homestead which was taken out of trust to borrow funds. This property was intentional gift, acquired during marriage, and separate or community of both, not just Appellee's.
Inception of Title Rule in Texas determines the character at the moment in time it is acquired. And because the rule looks to the time that property is acquired, it does not matter if the deed names both spouses as grantees.
The character of an asset can be used, but community presumption can do the work for you (5). A spouse proving otherwise that property is not community must prove with clear and convincing evidence.
Appellant has also claim for damages to community assets as recovery for medical bills. (6).
The Vernon's Texas Statues and Codes Annotated, Family Code, 3.3001, 3.001, Separate Property, (See App.4) defines separate property as property that's "owned or claimed before marriage, and property acquired afterward by gift, devise, or descent" (7). It also, matters if it was intended, and in this case if was, married 17 plus years, 10 years properties in the trust and comingled, and co-managed.
Texas is a community property state.
Fraud, undue influence, accident, and mistake are grounds on which a compromise settlement may be set aside. Avoidance of lump sum settlement or release of bastardly claims on grounds of fraud, also cause for fraud. 12A Tex. Jur. 3d Compromise and Settlement 18 (See App 1).
The Texas Supreme Court ruled that the MSA (mediated settlement agreement) did not constitute a binding contract it appears this is a matter of law, that the court in this case may have to decide. A material misrepresentation by one party to another can support repudiation or rescission by other party. Spouse failed to make proper disclosures, and should have disclosed all that he had sold, or was about to sell. Violations oftrust and marital laws should support the argument for forced Alternative Dispute Resolution, which other party refuses.
Intentional fraud or inducement during MSA, Appellee stating properties sold was his sole and separate property, S. Univ. v. State Bank & Trust Co. 212 S.W. 3d, 813, 914, (See App 5); ad was known to be false when made and was intended to be acted upon, and was relied upon (in MSA), (see App 5). Acourt is not required to enforce an MSA (or Hearing orders based on fraudulent nature) if illegal in nature in nature, or procured by fraud, duress, coercion, or other dishonest means, Court of Appeals, El Paso, Gary Edward Morse, Appellant, v. Dana Ann Morse, Appellee, No. 08-09-0046-CV, (See App 6).
Richard Bass received (in promissory notes majority of property) estimated $945,000.00, he agree $170,000.00 should be his just and right settlement to me. Appellant argues not just and right to her, as she is due one half as separate and community of net monies, with his legal cost coming out of his half. Appellant also request monies for attorneys fee to be given now, further litigation for real estate and trust fraud, against many properties, is likely to be necessary. MSA was changed after the fact, and not notarized. What Diana Bass signed cannot be proven, invalid contract. Under no circumstances did Diana Bass agree to give Appellee any Power of Attorney, repeat, under no circumstances. There is awitness and emails to support this. 10 MSA was torture, as though, and duress, coercion (the mediatory threatened buyer/developer would be "waiting at the door with a handful of lawsuit" if Appellant did not sign MSA. Diana Bass's attorney stated "she would resign if MSA not signed tonight". The attorney was later released by Diana Bass, hearing signed judge immediately after signing order to release attorney, Twelve hours of torture (MSA) for a person of poor health, is unjust and unfair, it just led to confusion, despair, forgetfulness, extreme fatigue, unable to think correctly. Diana Bass was already overwhelmed by selling of her assets, without her knowledge, and then the surprise divorce. Threats of losing her "homes" while having no monies, or home to go to, initiated "absolute fear, confusion, and despair." Circumstances surrounding the documents was duress and coercion, was unjust, unfair, and cruel.
Under Texas law, constructive fraud may be imposed when a party breaches a fidicuiary-like duty relationship. Richard Bass breached this when properties from trust and without knowledge given to Diana Bass, illegally all properties, including monies, and land. Matter of Creating Trust Westlaw, Matter of Carlin Paxton Advertising, Inc., C.A. 5, Tex.)1991, 938 F 2d 595. (See App. 7).
Conveyance between husband wife, property was conveyed by deed, with intent to make a gift, Supreme Court in Jackson V. Hernandez, 155 Tex. 249, 285 S. W. 2d 184, Opinion Chief Justice Bell, (See App.8); and The Constitution as Amended in 1948, C. (a) Article 15, ?15, see (App 9). li Constructive fraud, is a community estate liability, Appellant seeking declaratory judgement and title of homestead and other properties returned to her, or $475,000.00 monies to her.
Transmutation of separate property, interspousal transfer, makes a gift of separate property of donee spouse, written instrument partitions it. Wife given separate property thru gift, and husband committed fraud on the community, allowing future attorney's fees. Not having an attorney that understood estate and real estate laws has been detrimental to Appellant. Another part of fraud, Richard Bass assuring no monies for legal to Diana Bass, therefore, fraud could continue.
A contract is ambiguous in nature, if a provision of a contract (property ownership and division) is susceptible to more than one interpretation. This case would certainly apply this rule.
Fraud on the community, spouse has no right to manage.
When Richard Bass obtained Power of Attorney he was allowed to act as Diana Bass, making him sole management of the community. This was Fraud on Diana Bass. Jean v. Tyson-Jean, 119 S.W. 3d 1,5 (Tex. App-Houston (14th District), pet. Denied), Famliy Code-Title !, Chapter 3.Family Code 3.102, (See App. 10).
Appellee, engaged in fraudulent transfer of assets, and monies. Diana Bass contested the MSA in motions never signed by judge. The Honorable Judge violated her constitutional rights during hearing, transcript of hearing will show judge was demeaning and embarrassed her regarding her disability. Equal Opportunity law 12 does not allow this in a court of law. Diana Bass has two serious illnesses and should not be disgraced, because she is on disability. The Judge possibly exhibited, unknowingly, possible favoritism to other party.
Just and right division of community property should be awarded to each party, and having due regard, for the rights of each party. Tex. Fam. Code 7.001 (Vernon 2006), (See App.4). Appellant not required to Marshall the proof, its response need only point out evidence that raises a fact issue on the elements, Hamilton vs. Wilson 249 S.W. 3d, 425, 426, Tex. 2008, (See App. 2).
Contract is void if it calls for illegal action. Misrepresentation and embellishment, and just plain fibbing is obfuscation. MSA fraud ad dishonesty, Milner vs. Milner, 2012, Tex. (The Texas Supreme Court, March 9, 2012, Cause No. 10-776.). Family Code-Title 1, Chap. 6, Suit for Dissolution of Marriage, (See App. 11).
Appellant asking for damages, which should be enacted into this lawsuit. Where a twenty acre tract was conveyed to spouse prior and on that date petition filed, husband conveyed interest in resident, title, interest, claim, etc.. Court was entitled to consider in prior divorce petition, Statue 7.001, General Rules of Property Division. Appellant now asserting claims prior to divorce, Barr v. Resolution Trust 837 W. 2d 627, 631., Tex. 1992, (See App. 3). Richard Bass, signed trust, deeds, joint bank accounts, etc., voluntarily. Selling the properties, breaching contracts, no lack of fiduciary responsibility to Diana Bass, spouse and co trustee, was 13 unconscionable; Appellant was not provided a fair and reasonable of the selling and disclosure of properties sold, assets sold; Section 4.006, Enforcement of Family Code.
Conversion to community property methods, a spouse's separate real property remains separate unless divested by deed, due process of law, or the working of an estoppel.. Community property, a presumption should arise that the names of both spouses on the title to the property changes the character of the property from separate to community. Community benefit was intended. Payments of a loan made from joint bank accounts, of property 403/405 S. Graves, McKinney, Texas, this was so done.
The Constitution of 1876, states community presumption at the minimum. Constructive fraud arises when a spouse unfairly disposes of the other spouses one-half interest in community property, burden of proof on disposing spouse to prove fairness of disposition.
Community funds comingling defy resignation and identification. A recital states that the property is conveyed to a spouse as his or her separate property. Privity-a non-grantee is a party to the transaction if she is a grantor, parole evidence to contract the recital, and such evidence is admissible.
Richard Bass agreed to non-judicial against spouse, property fraud. Both parties had contract on property, violated that contract. Hearing never addressed this issue, norspousal support whether marital asset or your separate property. Community acquired by gift, but otherwise put in trust, is separate property. 14 Hearing took away my separate and homestead property. Was illegal transfer of property. District courts cannot take away separate property. Diana Bass has superior title to the property, and would request court to return the property, or buyer pay $317,000.00 immediately to Appellant. Hearing illegal, improper, unjust, allowed theft of properties and monies. Many papers were possibly signed illegally thru Power of Attorney given to Richard Bass per judges order. Due to this hearing there was fraudulent transfer of property belonging to appellant, from spouse to buyer.
Clear and convincing evidence is not satisfied when characterizing the property at issue as separate property which requires surmise or speculation by the court. Any doubt must be in favor of community property.
All property possessed by either spouse during or on dissolution of marriage is considered to be community, Tex. Fam. Code, Ann 3.003 (a), Vernon 2006, Barnett, (see App. 4).
Method of tracing-community out first. Smith v. Smith 22. S.W. 3d 140, 146 (Tex.App. Houston (14th District.) 200, no pet.) (See App. 12). Argument during MSA was that tracing needed to be done, no true.
Recorded title is community, stating a gift is a transfer of property made voluntarily and gratiously. Concluding wives acquisition of trust Income from testamentary trust was by gift or devise). Fam. 3.006, Proportional Ownership of Property by Marital Estates. (See App. 12). 14 An attempt by the parties to fix the character of marital property by means different than the state constitution, and doctrine of implied exclusion, held the agreement to be void and unenforceable.
A material misrepresentation by one party to an agreement can support rescission or repudiation by the other party. Afailure to disclose material information by one contracting party can lead to the rescission under what is essentially fraudulent inducement, such as bank accounts, where monies after properties is located, trust documents verifying Subtrust, etc., while claiming that was one of the reasons property (land) was his sole and separate property. In the case of Boyd v. Boyd the trial court denied enforcement of the agreement, because if failed to include substantial assets of the parties, including future earnings, and present income from sell of significant assets, Boyd v. Boyd, Westlaw, 67 S. W. 3d 398, Court of Appeals of Texas, Fort Worth, 9See App. 13). When one discloses information, he has the duty to disclose the whole truth rather than making a partial disclosure, that conveys a false impression. To date, no information given where monies are located. Personal and business records, especially those signed illegally thru Power of Attorney, are notto be concealed and family records, property records, any records of income, debts or other obligations, local rules of Travis County. Withholding information about substantial marital assets will not save the MSA from being held unenforceable. Ex Parte Hearings are for temporary order requirements include nothing about order to give Power of Attorney to a husband that had committed serious fraud upon Defendant (Appellant). They are usually 15 used in protective order. The only protection here was to ensure buyer/developer stole Diana Bass properties that day. The sell of the properties had contingencies, based on getting planning and zoning approval, and particular provisions of the agreement were illegal and violated public policy. Selling properties under such conditions, and still not paying any monies to Diana Bass is theft and fraud of monies and properties.
The Fort Worth Court of Appeals overturned the trial court's holding, and the set aside the Final Decree of Divorce as there was no meeting of the minds at the time of the entry of the MSA In this case there was definitely no meeting of the minds, nor is there as of this filing.
Texas law, setting up a trust and retaining a revisionary interest means that the donor has not retained a right of possession, because he has given away as much as he could. Spouse has absolute right to manage as long as no Fraud in the Community, which this case does have. Appellee unlawfully sold properties to the exclusion of Appellant's right. Conversion of the property to as he claims his "sole and separate property was intentional, wanton, willful, and without justification or excuse and was done with gross indifference. Appellant awarded by gift, separate property. If spouse acquires by gift, devise, than is spouse separate estate, revenues are separarate by virtue of which title is vested. Trustee is a fiduciary, a trust, once he has accepted appointment, has afiduciary relationship to the beneficiaries of the 16 Trust. Trustee are subject to the duties imposed by common law, the duties imposed by Texas Trust Code, and the duties imposed by the instrument creating the trust, Tex. Trust Code, Ann 113.051 (Vernon 1984), (See App. 4) Suit may be brought as an action for breach of contract as an action in tort, as an action in equity, or as an action for declaratory judgement.
A beneficiary of a trust means that a person has a present or future interest in a trust, vested or contingent. If more than one person creates or contributes property to a trust, each person is a settlor, except to the extent another person has the power to revoke or withdraw that position.
"Terms of a trust" means the manifestation of the settlor's intent regarding the trust provisions as written in the trust instrument or that may be established by other evidence (deeds, sell of other properties, contracts for sale, income taxes, franchise records, joint bank accounts).
Duty of atrustee is to act in good faith, and in accordance with the purposed of the trusts and the interest of the beneficiaries. The power of the court has to adjust atrustee's compensation in the terms of the trust which is unreasonably high or low. The trustee must exercise discretionary power in good faith and in accordance with its terms and purposes and the interest of the beneficiaries. The terms of trust may not deny acourt authority to take such action as necessary in the interests of justice, including requiring that atrustee furnish a bond, subsection. The trustee remains accountable to the beneficiaries for the trustee's actions. Trusts involves common law and principles 17 of equity supplement. A nonjudicial settlement agreement is valid only to the extent it does not violate a material purpose of the trust, Non Judicial Settlement Agreements, any interested party may request the court to determine whether the representation was adequate to determine whether the agreement contains terms and conditions the court could have properly approved. Appellant disagrees as to whom is beneficiary and grantor of Bass Living Trust, and whom violated the trustagreement (Richard Bass). His attorneys stated numerous items of the trust, Diana Bass disagreed with, such as ownership, whom owned the properties, etc.. His attorney stated Richard Bass inherited properties. Diana Bass also inherited properties, rules of construction attribute intention to individual donors based on the assumptions of common intention, also as to the meaning of "heirs" or 'issue" . The Ex Parte Hearing was also given power to Richard Bass to revoke the trust without Diana Bass consent. Trust termination requires beneficiaries approval, not given by Diana Bass.
Transfer of property to another person as trustee, during settlor's lifetime, declaration by the owner of the property that the owner holds identifiable property as trustee (both parties of this case were trustees, grantors, and beneficiaries).. Atrust is not created until it receives property, and property interest. Atrust and its terms must be for the benefit of the beneficiaries.
The MSA stated Richard Bass to pay "all the taxes", then in the divorce settlement, which was not in MSA, stated "no innocent spouse relief" may be used, therefore, indicating fraud by Richard Bass. The MSA did not include what was separate, community or both, and trust 18 of economic value. Income Tax Laws and Trust are separate from divorce laws, and the MSA would benefit Richard Bass and not Appellant, beneficiaries of the trust hold the beneficial interest in the trust property, Diana Bass was a beneficiary. Trust may be amended only by joint action of both spouse, this is to preserve the community character of property transferred to the trust. Joint tenancies in real estate , each spouse would presumably be treated as having made an equal contribution because of the right to sever the interest and convert it into tenancy in common. Trust estate laws are complicated with many laws affecting. Appellant claims one-half interest separate or community, and therefore, contesting MSA and divorce settlement.
Whenever trustee has comingled the property, the right is so defeated if the beneficiary can trace to the comingled fund,. If the comingling was wrongful, the burden othe trustee to establish which property is rightfully this trustee, if the trustee is unable to do so, the entire comingling of property is subject to the trust. Texas courts have held trusts to a"very high and strict standard of conduct which equity demands'. Trustees have duty and loyalty to beneficiaries, of good faith, good duty, loyalty, and a fidelity with respect to trust.
There was no partition agreement. Trust did not specify that property were separate property. Recorded titles conveyed to one or both of the spouses during marriage, the conveyances places legal title into the spouses as 19 grantees, and the equitable title is presumed to be in the community. Deeds were executed, and tracing not necessary due to joint trust bank account, and comingling of funds.
CONCLUSION
This court should void Mediated Settlement Agreement, Divorce Settlement, and Ex Parte Hearing. Intentional fraud, property and monies theft, improper division of community, separate, or both properties, voids the settlements, and therefore hearing.
The MSA and first court hearing were "bait and switch" games, a look "under the hood" of the details in this case shall prove. There is no reason, nor law that should protect the person and or spouse committing the fraud, especially with "greed and power" abuse the theme in every contract, agreement, hearings, and illegally selling of properties, ignoring the spouse rights, disability, loss of homes (including homestead and separate property), and no monies for medical treatments (including past due bills owed, which is community), nor treatments needed now. Honesty, and good faith, fair dealings should be the theme of all that takes place in the legal system. Attorney's fees in the future should be paid out of Richard Bass monies. This case can be summed up "as truth vs. lies". Appellant is the innocent spouse, and Diana Bass hopes the legal system will correct the injustices. $450,000.00 is requested as declaratory judgment. Richard Bass using exculpatory clause, did not act in good faith, and will not do so in future. Also, Diana Bass request Motion for a lawyer to represent me "in court" and in future, probono. 20 EX Parte Hearing should be dealt with by the courts, with justice being served, fraud should not be allowed even if was spouse. MSA should be voided and unenforceable. All community assets to be split equally, and that means all monies included.
PRAYER
Based upon the foregoing facts and analysis, Appellant respectfully requests that this Court:
1. Reverse the trial court order of Ex Parte Hearing, granting MSA, and Power of Attorney to Richard Bass, Appellee. 2. Declaratory judgement, due to illegal sell of Appellants sole or community properties, $450,00.00, to be paid as a lien on future final closing of properties, either with this buyer or another. Or fifty percent interest in future earnings from properties of sell to another buyer. 3. Medical bills that are due now are to be paid immediately by Richard Bass and until closing of properties and Diana Bass paid from funds from sell of any properties or any other monies $450,000.00 lien to be paid to Appellant on properties, medical bills or to be paid by Richard Bass, until time all monies due are paid(which could be quite substantial due to serious mold toxicity issues.
4. Appellants future attorney's fees to be paid Richard Bass, to prevent further fraud upon Appellant. 5. Spousal maintenance of $3,500.00 monthly, ( not out of her $450,000.00 settlement) until all monies paid to Appellant (including disability maintenance); moving expenses to be paid now of $10,000.00 not out of settlement, any community bills to be paid not out of settlement, chandelier to be packed up and sent to Diana Bass immediately, Couch and mower sent to Diana Bass immediately, some of the patio furniture, one half of all stainless steel shelves in garage, and house, tax records of past years to Diana Bass, all taxes to be paid of both parties by Richard Bass, and Diana Bass may use innocent spouse relief, if necessary. This includes rollback and franchise tax, or any other taxes. Diana Bass also may use capital gains tax deduction from sell of her properties if necessary. 5. Diana Bass request divorce immediately, with name change to Diana Fay Spriggs. Voided MSA agreement. Voided divorce settlement, Diana Fay Bass attorney will write divorce papers, and after, both parties agree will be sign. Any other issue will have to go to Alternative Dispute Resolution. Any further property exchanges or sells, or future earnings Diana Bass entitled to one-half (including any portion of any and including Vintage Place Funds, and or development, or any other development. 7. All copies of anything, anywhere, at anytime signed as Power of Attorney by Richard Bass be given to Diana Bass immediately, sent certified copies by Fed Ex. And any that was illegal may again allow Diana Bass to further pursue litigation, including Gary Schnell, and Vintage Place Funds as also contributing to breach of contract, lack of fiduciary duty, unfair dealings, property and monies theft (this also includes broker). 8. Any further fraud, duress, or coercion in MSA is aserious matter, 21 and all damages should be consider against Richard Bass, as was intentional malicious intent to deceive, and fraud.
A statement by the court should be made on what property is separate or community, or both during this marriage.
Respectfully submitted;-^ - C? \o«^n
By Diana Fay Bass, Appellant (Pro SE Litigant) db424fzfz(5)|ive.com
CERTIFICATE OF SERVICE
THIS IS TO CERTIFY THAT ATRUE AND CORRECT COPY OF THE ABOVE AD FOREGOING DOCUMENTS AND EXHIBITS HAS BEEN SERVED VIA
DIANA FAY BASS, APPELLANT APPENDIX FOR APPELLANT DIANA BASS
APP 1 12 A TEX. JUR. 3D COMPROMISE AND SETTLEMENT
APP 2 HAMILTON V.WILSON, 249 S.W. 3D 425, 426
APP 3 BARR V RESOLUTION TRUST 837, W. 2D, 627, 623, 631 (TEX.
APP 4 V.T.C.A., FAMILY CODE 3.001, SEPARATE PROPERTY
APP 5 OPINION BY JUSTICE MARTIN RICHER, STATE BANK & TRUST
212 S.W. 3D 813, 814
APP 6 COURT OF APPEALS OF TEXAS EL PASO, MORSE V.MORSE,
NO. 08-09-00046-CV
APP 7 112.001-METHODS OF CREATING A TRUST-WESTLAW-
CONSTRUCTIVE TRUSTS
APP 8 OPINION CHIEF JUSTICE BELL, 323 HAMBLEN V. HAMILTON
PREELY WERLIEN, HOUSTON, FOR APPELLANT
APP 9 CHAP 1, THE TEXAS MARITAL PROPERTY SYSTEM, C(A),
ARTICLE 16
APP 10 FAMILY CODE-TITLE 1, CHAP. 3 , 3.101-3102 JEAN V.
JEAN TYSON, 118 S.W. 3D 1.5 (TEX. APP) HOUSTON (14th ) DISTRICT, 2003, PET DENIED
A APPENDIX FOR APPELLANT DIANA BASS
APP 11 MILNER V. MILNER, 36, S.W. 3D 615, 618 (TEXAS 2012)
APPENDIX PAGE 2, APPELLANT DIANA BASS
APP 11 (TEXAS 2012) FAMILY ORDER TITLE 1 CHAP 6, SUIT FOR
DISSOLUTION OF MARRIAGE
APP 12 FAMILY CODE 3.006. PROPORTIONAL OWNERSHIP OF
MARITAL ESTATES
APP 13 67. S.W. 3D 398, COURT OF APPEALS OF TEXAS,
BOYD V. BOYD
APP 14 LOCAL RULES OF TRAVIS COUNTY § 18.Avoidance of compromise and settlement - Westlaw
Westlaw Next" § 18.Avoidance of compromise and settlement Mary Ellen West,J.D Texas Jurisprudence Third Edition f/ipprcx. 3 pages) SELECTED TOPICS
12A Tex. Jur. 3d Compromise and Settlement § 18 Compromise and Settlement
Settlement of Litigation and Compromise of Texas Jurisprudence, Third Edition Disputed Cialms Database updated October 2015 Compromise and Settlement Secondary Sources
Validity and effect of "Mary Carter" or Mary Ellen West, J D similar agreement setting maximum liability of one cotortfeasor and III. Avoidance providing for reduction or extinguishment thereof relative to recovery against nonagreeing Topic Summary References Correlation Table cotortfeasor
22 A L R.5th 483 (Originally published in § 18. Avoidance of compromise and settlement 1994) This annotation collects and discusses the West's Key Number Digest cases addressing the validity and effect of "Mary Carter" or similar agreements between an injured plaintiff and one or more, but not West's Key Number Digest, Compromise and Settlement «= 6(3) all, cotortfeasor defend. .
A.L.R. Library Power of city, town, or county or their officials to compromise claim Modern status of rules as to avoidance of release of personal injury claim on ground 15 A.L R 2d 1359 (Originally published in of mistake as to nature and extent of injuries, 13 A.L.R.4th 686 1951)
Avoidance of lump-sum settlement or release of bastardy claim on grounds of fraud, ..(Supplementing annotation in 105 A.L R 170 ) This annotation deals with the power of mistake, or duress, 84 A.L.R.Zd 593 certain governmental subdivisions, namely, Right of action for fraud, duress, or the like, causing instant plaintiff to release or cities, towns, and counties or their officials, to compromise a claim in .. compromise a cause of action against third person, 58 A.L.R.2d 500 Discretion of court to vacate its approval of settlement or release in respect of Settling the Case—Plaintiff personal injury to minor, 8 A.L.R,2d 460 4 Am Jur. Trials 289 (Originally published in 1966) Forms ..This article deals with settlement techniques relating to personal injury, death, Texas Forms Legal and Business §§ 16:22 to 16:24 (Authorization to settle claim) and property damage cases. It omits other related matters, such as obtaining information Texas Jur. Pleading and Practice Forms 2d § 66:28 (Answer—Affirmative about the case, preparing for.. defense—Undue influence invalidating settlement agreement) See More Secondary Sources Texas Jur. Pleading and Practice Forms 2d § 66:29 (Answer—Affirmative defense—Duress inducing agreement by threats to contest will on false grounds) JOINT APPENDIX, VOL. I Fraud, undue influence, accident, and mistake are grounds on which a compromise 2002 WL 33933818 settlement will be set aside by courts.1 Failure of consideration is also sufficient to vitiate a State Farm Mutual Automobile Insurance compromise agreement 2 Company v Campbell Supreme Court of the United States August 19. 2002 A compromise agreement will not be set aside merely on a showing that it is harsh or ..WILLIAM B. BOHLING Plaintiff- CURTIS unequal in its operation'• or that the value of the property received bythe complaining party B CAMPBELL Represented by: W SCOTT is disproportionate to that which he or she might legally have recovered.4 Itis also BARRETT Represented by ROGER P CHRISTENSEN Represented by: L RICH immaterial if the compromise agreement turns outto be advantageous to the creditor.'- A HUMPHERYS Defendant - STATE FARM settlement agreement is properly enforced, even though the defendant makes a unilateral MUTUAL AUTOMOBILE Repres..
mistake in determiningthe amount of benefits to whichthe plaintiff is entitled; a defendant is Brief of Plaintiffs - Appellees not allowed to repudiate a settlement agreement after discoverythat the plaintiff is entitledto 2015 WL 694468 a smaller sum than that allowed in the compromise.6 In re: DEEPWATER HORIZON. LAKE EUGENIE LAND & DEVELOPMENT, Defenses that would have been available in an action on the disputed claim are not available INCORPORATED; Bon Secour Fisheries Incorporated; Fort Morgan Realty, to avoid liability on the compromise and settlementagreement ' Incorporated; LFBP 1, L L.C., doing business as GW Fins; Panama City Beach Dolphin Tours & More, L L.C.; Zekes Charter Fleet. Footnotes LLC; William Sellers; Kathleen Irwin, Ronald Lundy, Corliss Gallo; John Tesvich, Michael Guidry, on behalf of themselves and Hines v Massachusetts Mut. Life Ins Co., 174 S.W.2d 94 (Tex Civ App. Fort all others similarly situated, Henry Hutto. Worth 1943); Ross v. Seip. 154 S W.2d958 (Tex Civ. App. Texarkana 1941), Brad Friloux, Jerry J Kee, United States Court of Appeals, Fifth Circuit writrefused; Davenportv. Shepherd, 197 SW 729 (Tex Civ App Beaumont February 09, 2015 1917), writ refused, (Feb 6, 1918) FN2 ROA2421 [Settlement Agreement, p 2] In addition to settling the private suits, Economy Furniture. Inc v Jirasek, 345 S W.2d 951 (Tex Civ App Austin BP pled guiltyto numerous criminal charges arising from the oil spill eleven felony counts 1961), writ refused n.r.e., (Oct. 3, 1961). of seaman manslaughter .
Davenport v Shepherd, 197 S W. 729 (Tex Civ App Beaumont 1917), writ Joint Appendix
refused, (Feb. 6, 1918) 1998 WL 34082180 CALIFORNIA PUBLIC EMPLOYEES' ^tf htt™-//a next west1awxom/Link/Document/FullText?findTvne=... 12/17/2015 Supreme Court of Texas. 249 S.W.3d 425 (Tex. 2008)
a HAMILTON V.WILSON
NADINE HAMILTON, NEE NADINE LAMBERT, PETITIONER, V. SELMA P. WILSON, M.D., RESPONDENT. • NO. 07-0164. -SUPREME COURT OF TEXAS. • MARCH 28, 2008. REHEARING DENIED MAY 2, 2008. • APPEAL FROM THE 237TH DISTRICT COURT, LUBBOCK
COUNTY, SAM MEDINA, J.
Fred Bowers, Forrest Bowers, Bowers Law Firm, Lubbock, TX, for Petitioner.
Jim Hund, Linda Ruth St. Clair Russell, Hund Harriger, LLP, Lubbock, TX, for Respondent.
PER CURIAM.
The trial court granted a provider's no-evidence summary judgment motion in at health care liability suit, and the court of appeals affirmed. Because genuine issues of material fact preclude summary judgment, we reverse the court of appeals' judgment and remand this case to the trial court for further proceedings.
On September 16,2003, eighty-three-year-old Nadine Hamilton was admitted to Covenant Lakeside medical center in Lubbock for back surgery. Prior to the procedure, anesthesiologist Dr. Selma Wilson was summoned to intubate Hamilton and administer general anesthesia. Dr. Wilson attempted the intubation with a 75mm endotracheal tube, encountered resistance, and then ^ ' inserted the tube i-2cm farther. When that tube did not reach the depth she expected, she removed it and successfully inserted one that was 7.0mm in diameter. After the surgery, a recovery room nurse extubated Hamilton and suctioned her throat. Hamilton later complained of chest pain, and x-rays indicated that air was entering Hamilton's chest cavity. It was thendiscovered that Hamilton had *426 suffered a tear in her esophagus. That night, Hamilton was transferred to another hospital where she successfully underwent emergency corrective surgery by Dr. Donald Robertson, a thoracic surgeon. Hamilton filed a health care liability claim against Dr. Wilson, alleging that she negligently tore Hamilton's esophagus during intubation by forcing the endotracheal tube into her esophagus after encountering resistance.
Dr. Wilson moved for summary judgment, arguing that there was no evidence that she was negligent or that she caused the esophageal tear. Hamilton responded with portions of the depositions of the designated testifying experts (Dr. Robert Finnegan on behalf of Hamilton, Dr. Byron Brown for Dr. Wilson), her medical records, and Dr. Wilson's own deposition. Dr. Finnegan testified that the intubation probably caused the tear in Hamilton's esophagus, and Dr. Wilson and Dr. Brown admitted this was possible. The trial court granted the motion, and the court ofappeals affirmed. 223 S.W.3d 535 (/case/hamilton-v-wilson-i) . Hamilton argues that the court ofappeals erred in concluding that there was no evidence that Dr. Wilson negligently tore Hamilton's esophagus. We agree.
In a no-evidence summary judgment motion, the movant contends that there is no evidence ofone or more essential elements ofthe claims for which the non-movant would bear the burden ofproof at trial. TEX.R. CIV. P. i66a(i). The trial court must grant the motion unless the respondent produces summaryjudgment evidence raising agenuine issue of material fact. Id. The respondent is "not required to marshal its proof; its response need only point out evidence that raises afact issue on the challenged elements." TEX.R. CIV. P. i66a(i) cmt. - 1997- We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. City ofKeller v. Wilson, 168 S.W3d 802, 822 (/case/city-of-keller-v-wilson-2#p822) (Tex. 2005).
«f>P In applying this standard, the court of appeals noted that, to recover for medical malpractice, the complainant must prove: 1) the physician had a duty to act according to a certain standard, 2) she breached that standard, and 3) the breachproximately caused the complainant to sustaininjury. 223 S.W.3d at 537 (/case/hamilton-v-wilson-i#p537) ;see IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (/case/ihs-cedars-treatment-ctr-of-desoto-v-mason#p798) (Tex. 2004). After reviewing the acts allegedly performed by Wilson, the court of appeals concluded that the mere possibility and "belief by Dr. Finnegan that Wilson inserted an endotracheal tube into Lambert's esophagus was "not evidence that proves the questioned fact." 223 S.W.3d at 538 (/case/hamilton-v-wilson- i#P538) •
However, Hamilton was not required to prove the facts as she alleged them. Rather, she was only required to provide evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. After examining the evidence on each ofthe required elements, we conclude that she met this burden.
In his expert report, Dr. Finnegan set out the general standard of care for an anesthesiologist placing an endotracheal tube. She must: a) establish and maintain control of the patient's airway during general anesthesia; b) establish this control in a safe manner; c) promptly recognize and document injuries and complications related to airway management; and d) promptly seek appropriate treatment, ifneeded, for such injuries and complications. Hamilton contends that certain diagnostic tests (breath tests, C02 tests, and use ofa pressure bag) should have been used to determine if the 7.5mm tube was in the esophagus and not the trachea before Dr. Wilson attempted to pass the tube after ^7 encountering atight fit. Dr. Finnegan noted that the tests take only ten to fifteen seconds and suggested that it was proper to use these measures to determine if the tube is in the airway and not the esophagus. Dr. Wilson's expert, Dr. Brown, disputed that breath tests should be used in this manner. But Dr. Finnegan noted that factors like the "[a]bsence of breath sounds, absence of C02 trace, [and] watching the stomach move instead of the chest wall" were measures he had used previously to determine ifatube was in the wrong location in previous intubations. Indeed, ultimately Dr. Wilson did use breath sounds to verify the placement ofthe second, smaller 7.0mm tube in Hamilton's trachea. The available testimony provides some evidence of a breach of the applicable standard of care. Dr. Finnegan testified that Dr. Wilson violated the standard of care by improperly calculating the tube's location. When asked in what respect Dr. Wilson breached the standard of care, Dr. Finnegan responded: "pushing the 7.5 endotracheal tube down into the esophagus."
Dr. Wilson testified that she inserted the tube in farther after encountering resistance. And Dr. Finnegan testified that Dr. Wilson failed to ascertain whether the tube was positionedproperly. Dr. Finnegan also concluded that Dr. Wilson's manipulation of the 7.5mm tube caused Hamilton's esophageal tear, and Dr. Wilson and Dr. Brown conceded that was possible. The implication is that breath tests, rather than feel alone, should have been performed to ensure proper placement in the trachea before Dr. Wilson pushed the 7.5mm tube in farther.
We have held that conclusory statements, evenfrom experts, are not sufficient to support or defeat summary judgment. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (/case/wadewitz-v-montgomery- i#p466) (Tex. 1997); see also Burrow v. Arce, 997 S.W.2d 229, 235 (/case/burrow-v-arce#p235) (Tex. 1999) (holding that "it is the basis of the witness's opinion, and not the witness's qualificatiof^cMrJa^ sffi«KsfflB amatter of law; aclaim will not stSicWrfafiOn the mere ipse dixit of acredentialed witness."). Dr. Finnegan's testimony, however, was notbased on mere possibilities, speculation, or surmise. His opinion that the intubation caused the f^y^ri^ the 7.5mm tube would have be^n when it wag pushed in by Dr. Wilson; 2) his review ofthe medical records indicating that the Select your interests tear was "probably related tointubation at the time ofsurgery;" and 3) his impression that the "tight fit" encountered byDr. Wilson was the cricnnharyngeal ring ofthe esophagi •* Further, although Dr. Wil i " *ed her alflA^^ieory for|HfiNftar occurMpJ^SI stoning of Hamilton's ktubatiojBMB testimoBBHBi Pushed l^lWf in 1-2Cm farther even ^nSiSSSSST« ""ti^Iifet:sSld SUPP°rtcM^an'S C°&!»na< Law Law The basis for Dr. Finnegan's testimony stands in contrast to the attorney Burrow v. Arce who, lalpral^Wled onlyJH||Htory affi Consumer conji^SS&ith Dr. CoQvriqht Wilson's Law testimonyCivilandProcedure ,. . Securities Law the medical . records, crea ; a genuine issue of( material fact. As a result, we conclude that reasonable and impartial jurors could differ in, their C(j)nGlusi(^^s^tejndi^Ga^se^ tfie tear in Hamilton's esophagus and that summary judgment was therefore improper; Hamilton produced evidence sufficient to raise genuine issues of material *4is ^\ fact on each of the elements she would be required to prove at trial. We therefore grant the petition for review and, without hearing argument, reverse the court of appeals' judgment and remand this case to the trial court for further proceedings consistent with this opinion. TEX.R.APP. P. 59.1 and 60.2(d). Contact (mailto:contact@casetext.com) Features (/features) Terms (/termsQ (httpS.//twftter.com/casetext) Privacy (/privacy) About(/about) Jobs (/jobs) Press (/press) Students (/stents) (https://www.facebook.com/casetext) © 2015 Casetext, Inc. Casetext, Inc. and Casetext are not attorneys or a law firm and do not provide legal advice. o^X BARR v. RESOLUTION TRUST CORP. No. D-2082. Email I Print I Comments (0) 837 S.W.2d 627 (1992) George]. BARR, Petitioner, v. RESOLUTION TRUST CORP., exrel. SUNBELT FEDERAL SAVINGS, Respondent. Supreme Court of Texas. September 23,1992. View Case Cited Cases Citing Case AlbertB. Greco, jr., BarbaraL. Wohkabe, Dallas, for petitioner. JackN. Ross, II, Dallas, for respondent. ... ."».. - ..... . OPINION GONZALEZ, Justice. The issue in this case is whether a claimby SunbeltFederalSavings against George Barrbased on a partnership promissory note and guarantee agreement is barred bythe doctrine ofresjudicata. The trial court granted Barr's motion for summary judgment based on res judicata. The court ofappeals, with one Justice dissenting, reversed the trial court's judgment, holding that the doctrine did not apply. &2& S.W.2d 600. Wereverse the judgment of the court [837 S.W.Id 628] of appeals and affirm the trial court's judgment. In 1985, Barr and Ron Knott were partners inthe Bar III Venture. On March 14,1985 Bar III executed a promissory note for $369,750 in favor ofSunbelt's predecessor in interest. The same day, Barr and Knott executed a personal guarantee ofthe note. InMarch 1987, Bar III defaulted on the note. On May 24, 1988, Sunbelt filed two separate lawsuits on the note. In one suit, Sunbelt alleged liability against the partnership as maker of the note and against Knott as guarantor of the note. In the other, Sunbelt alleged that Barr was personally liable because of his unconditional guarantee of the note. Barr moved for summary judgment inthe latter lawsuit on the grounds that the terms of the guaranty agreement were too uncertain to be enforceable. Barr argued thatthe agreement, a standard form containing a number of options to choose and blanks tocomplete, was not sufficiently completed to ascertain his liability. The trial court granted the motion, and rendered a final take-nothing judgment. Sunbelt did not appeal the judgment. Thereafter, Sunbelt amended its pleadings in the suit against the partnership and Knott by adding Barr as adefendant, alleging that his status as a partner created liability for the note. Barr's answer asserted res judicata, among other defenses. Barr moved for summary judgment on the grounds that the take-nothing judgment in the first lawsuit barred litigation of the claims against him in the second lawsuit. Sunbelt also moved for summary judgment, requesting ajudgment on the note. The trial court granted Barr's motion and denied Sunbelt's. This interlocutory judgment became final when the court rendered judgment for Sunbelt onitsclaims against thepartnership and Knott for thefull amount ofthenote. Sunbelt appealed, arguing that the trial court should have granted its summary judgment instead of Barr's. The court of appeals, with one justice dissenting, determined that the first suit did not bar the second. However, the court concluded that questions of fact prevented rendition in Sunbelt's favor, and thus remanded the case to the trial court. Both Barr and Sunbelt sought review in our court. Much of the difficulty associated with the doctrine of res judicata is due to the confusion of several related theories. Broadly speaking, res judicata is the generic term for agroup of related concepts concerning the conclusive effects given final judgments. Puga v. Donna Fruit Co fru SW.2d 677. 679 (Tex.1982). Within this general doctrine, there are two principal categories: (1) claim preclusion (also known as res judicata); and (2) issue preclusion (also known as collateral estoppel).5 Res judicata, or claims preclusion, prevents the relitigation of aclaim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit. Gratia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex.1984); Bonniwell v. Beech O0A 3 Aircraft Corp., 663 S.W.2d 816, 818 (Tex.1984). Issuepreclusion, or collateral estoppel, prevents relitigation of particularissuesalready resolved in a prior suit. 2 Bonniwell, 663 [837S.W.21I629I S.W.2d at 818. Barr's argument, that Sunbelt should have brought all theories of liability in one suit, is the defense of claim preclusion. Claim preclusion prevents splitting a cause of action. Jeanes v. Henderson, 688 S.W.2d 100. 103 (Tex.1985). The policies behind the doctrine reflect the need to bring all litigation to an end, prevent vexatious litigation, maintain stability of court decisions, promote judicial economy, and prevent double recovery. Zollie Steakley &Weldon U. Howell, Jr., Ruminations on Res Judicata, 28 Sw.LJ. 355, 358-59 (1974). The question that has given courts the most difficulty is determining what claims should have been litigated in the prior suit. Early on, this Court held that res judicata "is not only final as to the matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have decided." Foster v. Wells, 4 Tex. 101,104 (1849)- We have never repudiated this definition of claim preclusion, and it appears in some form in most definitions of res judicata. See, e.g., Jeanes v. Henderson, 688 S.W.2d 100.103 (Tex.1985) (res judicata bars not only what was actually litigated but also claims thatcould have been litigated inthe original cause ofaction). Iftaken literally, this definition ofthe rule would require thatall disputes existing between parties be joined, regardless of whether the disputes have anything in common. This court has resorted to awide variety of theories and tests to give res judicata a more restrictive application. *See generally 5 William V. Dorsaneo III, Texas Litigation Guide § I3i.06[4l[b][ii] (1991); Steakley, 28 Sw.LJ. 355- Even if only cases from more recent times are considered, our holdings with respect to res judicata are difficult to reconcile. In Griffin v. Holiday Inns ofAmerica, 406 S.W.2d 53s (Tex.1973) the court determined that a take-nothing judgment in a suit to recover in contract for services and materials did not preclude a subsequent suit to be compensated in quantum meruit. The court rejected the view that a judgment as to one claim is res judicata of all claims or causes of action arising out of the same transaction, and stated that, "[a]s ageneral rule ajudgment on the merits in asuit on one cause of action is not conclusive of asubsequent suit on adifferent cause of action except as to issues of fact actually litigated and determined in the first suit." Id. at 538. The court acknowledged, however, that alternative theories of recovery for the same "claim" may not be brought in different lawsuits. * l837S.W.2d630] Thus, in Griffin, the court determined that a "cause of action" for res judicata purposes is something more than the set of facts necessary to establish a single theory of recovery but not necessarily the entire transaction between the parties. Id. at 537"38. The court gave no guidance on the question of how to make this fine distinction between a mere alternative theory of recovery and a different cause of action. Every theory of recovery has its unique elements of proof. As the Griffin case illustrates, only slight variations of the facts to support different theories of the same incident can result in acourt finding different causes of action, thus thwarting the purposes ofres judicata. SeeSteakley, 28Sw.LJ. at 361-62. The court took an entirely different approach in Westinghouse Credit Corp. v. Kownslar, 406 S.W.2d 531 (Tex.1973). In that case Kownslar had guaranteed all promissory notes by the maker. The issue was whether res judicata required that Westinghouse bring in one suit its claims for all notes guaranteed by Kownslar that were then in default. Rather than decide whether there was more than one cause of action involved, the court decided the case solely on whether itappeared that the policies of res judicata required such a result.5 This pure policy approach as exemplified by Westinghouse makes it virtually impossible to determine in advance what policy will win out in any given case. Without any objective standards, each case is decided ad hoc, and therefore the doctrine is "inherently unpredictable" and "affords little basis for consistency and formulation of precedent." Steakley, 28 Sw.LJ. at 362-63. Westinghouse is the onlycase we havedecided solely on policy grounds. Then in Texas Water Rights Comm. v. Crow Iron Works, 582 S.W.2d 768 (Tex. 1979), the court shifted the focus from the cause of action to the subject matter of the litigation. The question was whether amajor lawsuit instigated to sort out water rights to the lower Rio Grande river precluded asubsequent suit based on the claim that during the pendency of that suit the plaintiff had purchased additional rights. The court concluded that the subsequent claim was barred, noting that: The scope ofres judicata is not limited to matters actually litigated; the judgment in the first suitprecludes asecond action by the parties and theirprivies not only on matters actuallylitigated, but also on causes ofaction or defenses which arise out ofthe same subject matter and which might have been litigated in the first suit. Id at 771-72 (emphasis added). Accord, Gratia, 667 S.W.2d at 519. Thus this definition is not consistent with earlier formulations of the rule, such as in Griffin, that only issues related to asingle cause of action are barred in asubsequent suit. While we did not expressly overrule the Griffin test in either CrowIron Works or Gratia we do so now. Adetermination of what constitutes the subject matter of asuit necessarily requires an examination of the factual basis of the claim or claims in the prior litigation. It requires an analysis of the factual matters that make up the gist of the complaint, without regard to the form of action. Any cause of action which arises out of those same facts should, if practicable, be litigated in the same lawsuit. Gratia, 667 S.W.2d at 519; Crow Iron Works, 582 S.W.2d at 772- The definition of res judicata in Gratia and Crow Iron Works is substantially similar to the rule of compulsory counterclaims embodied in the rules of civil procedure. A party defending a claim must bring as a counterclaim any claim that "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim...." TEX.R.CIV.P. 97. [837 S.W.2d 631] The Restatement of Judgments also takes the transactional approach to claims preclusion. It provides that a final judgment on an action extinguishes the right to bring suit on the transaction, or series of connected transactions, out of which the action arose. Restatement of Judgments § 24(1). A "transaction" under the Restatement is not equivalent to a sequence of events, however; the determination is to be made pragmatically, "giving weight to such considerations as whether the facts are related in time, space, origin, ormotivation, whether they form a convenient trial unit, and whether their treatment asa trial unit conforms tothe parties' expectations or businessunderstanding or usage." 6Id. § 24(2). We conclude that the transactional approach to claims preclusion of the Restatement effectuates the policy of res judicata with no more hardship than encountered under rule 97(a) of the rules of civil procedure. Modern rules of procedure obviate the need to give parties two bites at the apple, aswas done in Griffin, to ensure that a claim receives fulladjudication. Discovery should put a claimant on notice ofany need for alternative pleading. Moreover, if success on one theory becomes doubtful because of developments during trial, a party is free to seek a trial amendment. In the case nowbefore us, there is novalid reason to subject Barr to two differentlawsuits. In the suit broughtpreviously againstBarr, the bank alleged that he executed the guarantee on the same day and as part of the "same transaction" as the promissory note. In both suits Sunbelt seeks to hold Barr primarily liable for payment of the note and seeks the same amount of damages. Both suits require proof establishing the notes of the partnership, that the notes are due, and that the partnership has defaulted. The only factual allegation that Sunbelt pleaded in the second suit thatwas notin thefirst is that Barr isa general partner ofBar III Venture. It is clear that in this case the execution of the partnership note and Barr's guarantee of it were related in time and space and motivation, and the parties considered it as a single transaction. The issues of both claims form a convenient trial unit, whereas separate lawsuits would require significant duplication of effort of the court and the parties involved. With due diligence, the claim that Barr was liablebecause he is a partner could havebeen joined in the suit on his guarantee of the partnership note. We reaffirm the "transactional" approach tores judicata. Asubsequent suit will bebarred ifit arises out ofthe same subject matter of aprevious suit and which through the exercise of diligence, could have been litigated in a prior suit. For these reasons, the judgment of the courtof appeals is reversedand that of the trial court is affirmed. FootNotes 1. Res judicata may be further categorized into merger and bar, because the doctrine has different applications depending on which party is successful in the prior suit. If the party asserting aclaim prevails, the cause of action is merged into the judgment, and the cause of action as such ceases to exist. Jeanes v. Henderson, 688 S.W.20 100.103 (Tex. 1985). Ifthe party defending aclaim prevails in the prior suit, the judgment acts as a bar to matters which could have been litigated in the original suit. id. reals' holding that "res judicata does not preclude relitigation of lion of those issues was essential to the judgment in the first suit." 1982), which is entitled "Issue Preclusion—General Rule", i.e., LEAGLE aagein the case cited by the court, Faourv. Faour, 762S.W.2d36i without elaboration that res judicata requires an "identity of i of Cities for Affordable Utility Rates v. Public Utilities V.2d 602. 606 (Tex. 1986); Bonniwell v. Beech Aircraft Corp., , then there is no basis for precluding issuesthat shouldhave >etween claim preclusion and issue preclusion. See Flores v. ^^V ^^^B ^B*^^^^B Jfl| " ||f* ing the grievance and wrong complained of, must be identical in ^^•j j^^H ^M I ft ^H llll,, ^M& ;riet-93 Tex. 458, 56 S.W. 330,330 (1900), (all matters that could ^B^B^^B^BT ^^^L^L^&W ^fEjggttglra: ed in asucceeding suit); Freeman v. McAninch, 87 Tex. 132, 27 S.W. ^B^BjBBBr ^^^^HB^ ^ilippnr ;ame "subject matter" of the suit); Moore v. Snowball, 98 Tex. 16, ur^^iu q;u4; iuiuuS.^ uul i„ .uu.^im) uiuuuu uum piuui 01 Lquitable title so as to be different "cause of action" for res judicata nmZesyOgletreev. Crates, ^S.W.2dA3i. 436 (Tex. 1963) (while suit to modify adivorce decree and suit to set it aside for taud are technically different causes of action, they are the same "broad cause of action," and public policy requires all complaints concerning cusTScry could and should have been brought in the same suit). 4The court did not attempt to apply any test for res judicata to the facts in Griffm. Ultimately, the Court based its decision on stare decisis, because other courts had held that quantum meru.t is not barred by ajudgment on the contract. Griffin, 496 S.W.2d at 538. The court did so without discussion ofthe reasoning inthecases upon which it relied. "** frfP 5. The court announced a two-step analysis. First the court looked to see if stare decisis decided the case, and determined that there was no controlling case. Second, the court looked to see "whether the factual situa tion presented is such that the purposes of the doctrine of merger shall be frustrated absent enforcement of the bar." 496 S.W.2d at 532. 6. In Jeanes v, Henderson, 688 S.W.2dloo. 103 (Tex.1985],we cited sectior 24(2) of the Restatement as authority for the definition of claims preclusion. We did not clearly adopt the restatement in that case, howeve r. Comment Your Name Your Email Comments IOOO Charterers Remaining ieagle com reserves the right to edii orremove comments but is under r . obligation to do so, or to explain individual moderation decision^ °ft § ;3.001. Separate Property - Westlaw 29 WestlawNext" § 3.001. Separate Property Vernon's Texas Statutes and Codes Annotated Family Code (Appmx 2 pages) NOTES OF DECISIONS (1520) | 1 "]ota Validity In general Vernon's Texas Statutes and Codes Annotated Conflict of laws Family Code (Refs & Annos) Federal regulation, conflict of laws Title i. The Marriage Relationship (Refs &Annos) Contracts, conflict of laws Subtitle B. Property Rights and Liabilities Personal injury recoveries, conflict of laws Personal property Chapter 3. Marital Property Rights and liabilities (Refs &Annus) Real property Subchapter A. General Rules for Separate and Community Properly (Refs & Successive communities Annos) Children, successive communities Determining character of property V.T.C.A., Family Code § 3.001 Time generally, determining character of property Acquisition, determining character of § 3.001. Separate Property property Nature of separate property, determining Currentness character of property Nature of community property, determining character of property A spouse's separate property consists of: Intent, determining character of property Consideration, determining character of (1) the property owned or claimed by the spouse before marriage; property Proportionate interest, determining (2) the property acquired by the spouse during marriage by gift, devise, or descent; and character of property increase in vaiue, determining character (3) the recovery for personal injuries sustained by the spouse during marriage, except any of property recovery for loss of earning capacity during marriage. Intentions of parties, determining character of property Credits Premarital agreements, determining character of property Added by Acts 1997, 75th Leg , ch. 7, § 1, eff. April 17, 1997. Inception-of-title rule, generally Changing character of property Editors' Notes Tracing and identification, changing character of property TEXAS ANNOTATED CODE SERIES REFERENCES Agreements, changing character of property Gifts between spouses, Sampson &Tindall's Texas Family Code, Family § 3.005. Commingled property Recordation of separate property, Sampson &Tindall's Texas Family Code, Family § Devise or descent, changing character of 3.004. property Exchanges RESEARCH REFERENCES Tenancy in common, generally Fraud Encyclopedias Gifts 37 Am. Jur Proof of Facts 2d 379, Transmutation of Separate Property Into Community Tracing separate property, commingled property Property. Identification of separate property, 39 Am Jur. Proof of Facts 2d 373, Gift of Corporate Stock. commingled property TX Jur. 3d Family Law § 133, Property Acquired During Marriage by Gift. Consideration, gifts Spouse, gifts Treatises and Practice Aids Findings, gifts inherited property Texas Family Law Service § 17:2, Separate Property. Trusts Texas Family Law Service § 19:7, Separate Property. Inter vivos trusts Texas Family Law Service § 20:9, Separate Property. Constructive trusts Texas Family Law Service § 21:2, Separate Property. Resulting trusts Texas Family Law Service§ 24:6,Agreements as to Income or Property Derived from Spend-thrrft trusts Separate Property Powers of trustees, trusts Texas Family Law Service § 18:20, Separate Property. Discharge of trustees, trusts Texas Family Law Service § 18:34, Gifts. Interest and title, trusts Texas Family Law Service § 19:27, Gifts. Income, trusts Texas Family Law Service§ 24:31, Gifts of Community Property to Spouse. Taxation, trusts Beyer, 9 Tex Prac Series § 3.7, Separate Property-Definition. Competence of parties, trusts Elder, 33 Tex. Prac Series§ 9:3, Definitions-Community Property and Separate Property. Deeds, trusts Unlawful cohabitation, trusts Prizes and awards Relevant Notes of Decisions (710) Earnings Services prior to marriage, earnings Notes of Decisions listed beiow contain your search terms. Bonuses, earnings WestlawNext" § 15. Separate and community property of husband and wife Vernon's Texas Statutes and Codes Annotated Constitutionofthe State of Texas 1676 {Appmx 2 pages) NOTES OF DECISIONS (700) Part: [ 1 [of 3 Construction and application Legislative intent Vernon's Texas Statutes and Codes Annotated Purpose Constitution of the State of Texas 1876 {Refs & Annos) Equality of parties Article XVI. General Provisions Marriages, void Void marriages Putative marriages Proposed Legislation Characterization of property Separate property Vernon's Ann.Texas Const. Art. 16, § 15 Inception of title, characterization of property Origin of title characterization of property § 15. Separate and community property of husband and wife Tracing, characterization of property Appreciation, characterization of property Currentness Wills, characterization of property Separation Sec. 15. All property, both real and personal, of a spouse owned or claimed before Divorce, characterization of property marriage, and that acquired afterward by gift, devise or descent, shall be the separate Sufficiency of evidence property of that spouse; and laws shall be passed more clearly defining the rights of the Just and right division of property spouses, in relation to separate and community property; provided that persons about to Agreements marry and spouses, without the intention to defraud pre-existing creditors, may by written Prenuptial agreements instrument from time to time partition between themselves all or part of their property, then Postnuptial agreements existing or to be acquired, or exchange between themselves the community interest of one Partition agreements spouse or future spouse in any property for the community interest of the other spouse or Divorce agreements future spouse in other community property then existing or to be acquired, whereupon the Separation and divorce agreements portion or interest set aside to each spouse shall be and constitute a part of the separate Depriving spouse of separate property Spousal gifts property and estate of such spouse or future spouse; spouses also may from time to time, Undue influence, gifts by written instrument, agree between themselves that the income or property from all or part Burden of proof of the separate property then owned or which thereafter might be acquired by only one of Presumptions and burden of proof them, shall be the separate property of that spouse; ifone spouse makes a gift of property Trusts to the other that gift is presumed to include all the income or property which might arise from Resulting trusts that gift of property; spouses may agree in writing that all or part of their community property Unlawful cohabitation, trusts becomes the property of the surviving spouse on the death of a spouse; and spouses may Taxation, trusts agree in writing that all or part of the separate property owned by either or both of them Prizes shall be the spouses' community property. Earnings Gifts Credits Minors Amended Nov. 2, 1948; Nov. 4, 1980; Nov. 3, 1987; Nov. 2, 1999. Unemployment compensation Workers' compensation Editors' Notes Public records INTERPRETIVE COMMENTARY Damage awards, generally Personal injuries 1993 Main Volume Consortium, personal injuries Contributory negligence of spouse Texas has what is known as the community system of property rights of husband personal injuries and wife, that is, all property ofwhatsoeverkind acquired by the husband and wife, Parties, personal injuries or either of them, duringthe marriage other than that specifically declared to belong Damages, personal injuries Insurance to the one or the other separately, becomes the community propertyof the two Premiums paid with community property. insurance The community property system has lived sincethe days ofthe rudetribesof Premiums paid with separate property. Germany when the wives who sharedthe fighting werethought to be worthy ofa insurance share inthe spoils. When the Germanic Gothsconquered and occupied Spain they Life insurance, generally carried the concept ofcommunity property with them to that nation, and one ofthe Death benefits, insurance Gothic rulers ofSpain by statutemadecommunity of matrimonial gains the general Annuities law ofSpain. Spain, in turn, introduced thecommunity property tothe New World, Bank accounts and by this manner it became part of the lawof Texas. Interest, bank accounts Joint tenancy The separate property of the husband orwife isthat which isowned orclaimed by Foreign jurisdictions, bank accounts such spouse before the marriage andthatacquired afterward by gift, devise, or Stocks and bonds descent. All other property, whether acquired actually by the husband orthewife or United States savings bonds by their joint efforts, orin any other way, becomes community property. This estate, Partition therefore, is a variable one; it begins at the marriage with nothing and ends at the Bonds dissolution ofthe marriage with everything, presumptively, ofwhich the parties are Businesses httDs://a.next.westlaw.com/Document/N5A7DC2F0BE7611D9... 12/18/2015 §15. Separate and community property of husband and wife - Westlaw 28 possessed. The character of the estate is determined by operation of law according Revenue from property to the time and circumstances of acquisition. Credit purchases Loans, generally Prior to the passage of the amendment to this section in 1948, attempted partitions Title to property of the community estate were repeatedly held void, although the husband could Abandonment, title to property make a gift to the wife of his share in the community property with the result that Deeds and conveyances what had been community property became the separate property of the wife. Equitable title to property Estoppel, title to property The amendment permitting the husband and wife to partition their community Rights of survivorship, creating property, was a direct result of the decision of the Supreme Court in King v. Bruce, Survivorship rights, creating 145 T. 647, 201 S.W2d803, 171 AIR. 1328 (1947) certiorari denied 68 S Ct. 82, Community property 332 U.S. 769, 92 L.Ed. 355, rehearing denied 68 S Ct. 151 332 U S 820, 92 L.Ed Intentions of parties 396. The husband and wife had previously attempted to partition a portion of their Recitations in deeds and conveyances Consideration community property. This partition having been foiled, they therefore devised a Source of funds, generally, deeds and scheme hoping to effect a partition. They went to New York and had $5800 of their conveyances community property transferred to a New York bank. There the husband withdrew Proportionate interest, deeds and $4,000 of the amount which he had paid to him in two containers, each consisting conveyances of 2,000 silver dollars. The remainder of the money was drawn in 4 cashier's Notice of separate ownership checks which were indorsed by the parties and placed in the respective containers. Third party transactions The husband and wife then entered into a contract whereby each transferred to the Family member transactions, deeds and conveyances other the contents of their container. They then deposited the $2,900 so acquired Remarriage, deeds and conveyances by the contract in the New York Bank. Upon her return to Texas, the wife deposited Conveyances between spouses her $2,900 in a Ft. Worth bank. Creditors' rights, conveyances between spouses A garnishment was run against this deposit by a judgment creditor of the husband. Reimbursement The contract was held to contravene Texas public policy, and, as such, did not Improvement of community property, effect the character of the property, and hence it was still community property. reimbursement Purchase or improvement of community The defendant in this case contended that the policy of the state should be property, reimbursement changed so that a husband could provide a substantial sum of money for his wife Improvement of separate property Purchase or improvement of separate as her separate property so that she would have money on which to live in the property, reimbursement event the estate of her deceased husband was a substantial length of time in the Status of improved properties, process of administration or was unduly burdened with debts so that very little reimbursement could be realized in any reasonable time from the community estate. The defendant Successive communities, reimbursement further contended that a husband should be able to partition the community estate Amount of reimbursement Homestead without subjecting the community property to the federal gift tax. Foreclosure, homestead The court admitted the existence of these hardships, as well as the frequency with Adverse possession which they occurred, but said: Expiration of limitation period during marriage, adverse possession If the electorate of the state desire a change of the state policy, under Death of spouse consideration, it can be made through legislative and constitutional channels Rents, revenue from property income, revenue from properly provided by law. Profits, revenue from property Thus the amendment was submitted to the electorate and upon approval brought Crops, revenue from property about the changes contended for in this case. Livestock offspring, revenue from property TEXAS ANNOTATED CODE SERIES REFERENCES Leases Mineral interests Gifts Between Spouses, Sampson &Tindall's Texas Family Code. Family § 3.005. Surviving spouses, death of spouse Managing Separate Property, Sampson &Tindall's Texas Family Code, Family § 3 101 Management and control of separate property Recordation of Separate Property, Sampson &Tindall's Texas Family Code, Family § Capacity to contract, management and 3.004. control of separate property Separate andCommunity Property ofHusband and Wife, Sampson &Tindall's Texas Family Capacity to sell and convey, management Code, Const. Art. 16, § 15. and control of separate property Management and control of community LAW REVIEW COMMENTARIES property Mortgages, management and control of Community time, talent, and industry: Effect upon separate property. 22 Baylor L.Rev. 527 community property Lifeestates, management and control of (1970). community property Family Code Symposium; Interstate spouses, interstate property, and divorce. John J. Fraud, management and control of Sampson, 13 Tex.Tech L.Rev. 1285 (1982). community property Gifts ofcommunity property interests to spouse. 12Tex.Tech L.Rev. 376 (1981). Suretyship Legal effect of marital separation agreements upon community property status: Is it time to Agency of spouse amend constitutional definition ofwife's separate property? 12St. Mary's L.J. 159(1980). Absence of spouse agency of spouse Personal injury recovery as separate property ofmarried persons. 14S Texas L.J 110 Liability of spouses Notice, agency of spouse (1973). Service of process agency of spouse Power of attorney, agency of spouse 4k>& 4 https://a.next.westlaw.com/Document/N5A7DC2F0BE7611D9.. 12/18/2015 § 15. Separate and community property of husband and wife - Westlaw 28 Property division in Texas divorce of migrant spouse. J, Thomas Oldham, 19 Hous.L.Rev. Torts 1. Ratification, agency of spouse Necessaries Reclassification of tort recoveries by spouses. 4 Tex.Tech L.Rev. 359 (1973). Attorneys' fees, liability of spouses Rights of a surviving spouse in Texas in marital property acquired while domiciled Liability of separate property elsewhere, 45 Tex L.Rev. 321 (1966). Liability of community property Should your spouse be compensated for putting you through school? Texas says no; is that Levy and garnishment, liability of just and right? 20 St. Mary's L.J. 897 (1989). community property Texas Family Code with commentaries-Title 1. Husband and Wife. Joseph W. McKnight, 21 Tex.Tech L.Rev. 911 (1989-1990). Tortious conduct of spouse toward other's property rights. 20 Baylor L.Rev. 29, 30 (1968). RESEARCH REFERENCES 2015 Electronic Update ALR Library 87 ALR 6th 495, Validity of Postnuptial Agreements in Contemplation of Spouse's Death. 80 ALR 5th 533, Spouse's Cause of Action for Negligent Personal Injury, or Proceeds Therefrom, as Separate or Community Property. Encyclopedias 37 Am. Jur. Proof of Facts 2d 379, Transmutation of Separate Property Into Community Property. TX Jur. 3d Decedents' Estates § 66, Death of Spouse as Terminating Community Estate. TX Jur. 3d Decedents' Estates § 67, Rights of Surviving Spouse to Community Property. TX Jur, 3d Family Law § 167, Damages for Personal Injury to Spouse. TX Jur. 3d Family Law § 241, Agreement Concerning Income or Property Derived from Separate Property. Forms Texas Forms Legal and Business i 32:47, Agreement on Income or Property from Separate Property. Treatises and Practice Aids Texas Family Law Service § 17:2, Separate Property. Texas Family Law Service § 19.7, Separate Property. Texas Family Law Service § 204, Right of Spouses to Divide Property. Texas Family Law Service § 20:9, Separate Property. Texas Family Law Service § 21.2, Separate Property. Texas Family Law Service§ 24:6,Agreementsas to Income or Property Derived from Separate Property Texas Family Law Service § 18:20, Separate Property. Texas Family Law Service § 46:43, Characterization as Community or Separate Property. Leopold, 4 Tex. Prac, Series § 20.4, Validity ofTexas Deeds Between Husband and Wife. Beyer, 9 Tex. Prac. Series § 3 7, Separate Property-Definition. Leopold, 3A Tex Prac. Series § 13.28, Interests in Texas Land Held by Multiple Owners- Doctrine of Survivorship Abolished-Survivorship of Husbandand Wife. Leopold and Beyer, 38Tex Prac. Series§ 2.3, Separate Property-Before Marriage. Leopold and Beyer, 38Tex. Prac. Series§ 2 4, Separate Property-During Marriage. Leopold and Beyer, 38 Tex. Prac. Series§ 2.5, Separate Property-By Agreement. Leopold and Beyer, 38Tex Prac. Series§ 11.3, Agreements Concerning Income or Properly from Separate Property-ln General. Leopold and Beyer, 38 Tex. Prac. Series § 12 4,Content of a Premarital Agreement-Making Separate Property. Leopold and Beyer, 38 Tex. Prac. Series § 11 22, Introduction to Agreements to Convert Separate Property to Community Property. Leopold and Beyer, 39 Tex. Prac. Series § 22.4, Recipients of Separate Property Upon Intestacy. Leopold and Beyer. 39 Tex Prac Series §18 11, Agreements Between Spouses and the Presumption. Leopold and Beyer, 39 Tex Prac Series § 18.13, Conveyances Between Spouses. View all 700 Relevant Notes of Decisions (674) httDs://a.next.westlaw.com/Document/N5A7DC2F0BE7611D9... 12/18/2015 Desta v. Anyaoha - Westlaw When reviewing factual findingsforfactual sufficiency, a finding will be overturned RAMIREZ, Appellee. Court of Appeals of Texas, San Antonio only ifit is so against the great weight and preponderance of the evidence or so January 15, 2014 lacking in evidentiary support as to be clearly wrong and unjust. ..In assessing whether the evidence supporting a jury finding is legally sufficient, we only consider evidence favorable to the jury's decision and disregard all evidence and Appeal and Error Vs* Cases Triable inAppellate Court inferences to the contrary. .. Conclusions of law are reviewed de novo. See More Briefs Trial Court Documents 7 Marriage 4F3 Fraud, misrepresentation, or imposition Zapf v. Texas Dept. of Transp Marriage annulment statute did not condition annulment of marriage upon finding 2011 WL 7301777 that wife's fraud went to the essentials of the marital relationship; trial court's Zapf v. Texas Dept. of Transp finding that wife made material misrepresentations to induce husband to marry District Court of Texas, Jefferson County August 01, 2011 her was sufficient under annulment statute. VT.C.A. Family Code § 6.107. ..August 1, 2011 Dear Counsel: I have now had an opportunity to consider defendant's Motion for Judgment Notwithstanding the Verdict filed in connection with the above- 8 Fraud %'la Elements of Actual Fraud captioned matter. As the parties ar. Fraudulent inducement is established by proving that a false material misrepresentation was made that: (1) was known to be false when it was made; Billy Wayne SELLERS, v. Daniel L. FOSTER, DO. (2) was intended to be acted upon; (3) was relied upon; and (4) caused injury. 2006 WL 3064769 BillyWayne SELLERS, v. Daniel L FOSTER, 1 Case that cites this headnote DO District Court of Texas, Tarrant County May 11,2006 9 Fraud I?51 Materiality of matter represented or concealed This court has considered the record on A "material misrepresentation," as an element of fraud, means a reasonable appeal in this case and holds that there was person would attach Importance to and would be induced to act on the no error in the thai court's judgment. It is ordered that the judgment of the trial court is information in determining his cause of action. affirmed Itisfurthe.. Dallas COUNTY, Appellant, v. Glen HOLMES, Appellee. Attorneys and Law Firms 2001 WL 35939063 Dallas COUNTY, Appellant, v Glen '597Meijken Westenskow, Mosaic Family Services, Dallas, TX, for Appellant. HOLMES, Appellee. District Court of Texas. December 06, 2001 Stephen V. Hartman, Dallas, TX, for Appellee. ...FN1. The Honorable David F. Farris Retired Justice, Second District Court of Before Justices O'NEILL, MARTIN RICHTER, and LANG-MIERS. Appeals, Fort Worth, Texas, sitting by assignment FN2. The Honorable Barbara Rosenberg, Former Justice, Court of OPINION Appeals, ... Opinion By Justice MARTIN RICHTER. See More Trial Court Documents The trial court annulled the marriage of Betelehem Desta (Wife) and Festus Anyaoha (Husband) based on fraud. In two issues on appeal, Wifeasserts the evidence was legally and factually insufficient to support an annulment and the trial court erred because there was no determination *588 as to whether the alleged fraud "went to the essentials of the marriage relationship." Concluding appellant's arguments are without merit, we affirmthe trial court's judgment. Background Husband, a resident of the United States, met Wife, an Ethiopian citizen, on an internet dating site. Wife told Husband she wanted a marital relationship withseveral children. The two were married in 2007, and began living together in October 2008 after Wife arrived in the United States. Wife claimed Husband abused her, and left him in May 2009 shortly after she received her "green card." Wife filed a petition fordivorce Husband filed a cross-petition requesting dissolution of the marriage, or alternatively, annulment based on fraud. Following a hearing, the trial judge ruled that the marriage should be annulled and madefindings offactand conclusions oflaw. This appeal followed. Discussion 1 Appellant contends theevidence isinsufficient tosupport an annulment and thetrial court erred because it did not determinewhetherthe allegedfraud"went to the essentials of the marriage relationship." We disagree. Atrial court may grant a petitioner an annulment ofa marriage if (1) theother party used fraud, duress, or force to inducethe petitioner to enter intothe marriage; and (2)the petitioner has not voluntarily cohabited with theother party since learning ofthefraud or 5 •PP https://a.next.westlaw.com/Document/I693e9d46befdllel9159... 12/17/2015 Desta v. Anyaoha - Westlaw We decline this invitation to expand the scope of § 6.107 to impose more than what the statute requires. See Phi Van Cao v. Hardy, 352 S.W.3d 218, 221 (Tex.App.-Houston (14th Dist] 2011, pet. denied) (stating court may not add language to a statute). It is not the function of the courts to expand the scope of a statute beyond the Legislature's intent as expressed in the plain language of the statute. See Consol. Reinforcement, LP. v. *600 CarothersExec. Homes, Ltd., 271 S.W.3d 887, 892 (Tex.App -Austin 2008, no pet), overruled on other grounds byS&P Consulting Engineers, PLLC v. Baker. 334 S W.3d 390, 403 (Tex.App -Austin 2011, no pet). The statute plainly provides that a trial court may grant _ 8 9 Wife acknowledges that Texas courts determining whether to grant an annulment based on fraud typically look for evidence of fraudulent inducement. See Villarreal v. Villarreal, No. 09-09-00319-CV, 2010 WL 2854250 at *5 (Tex App -Beaumont May 17, 2010) (not designated for publication); see also Leax, 305 S.W 3d at 29. Fraudulent inducement is a species of fraud. See Tex. S. Univ. v. State Bank & TrustCo.. 212 S.W.3d 893, 914 (Tex.App.-Houston [1st Dist] 2007, pet. denied). Fraudulent inducement is ^**> established by proving that a false material misrepresentation was made that (1) was known M K to be false when it was made; (2) was intended tobeacted upon; (3) was relied upon; and (4) caused injury. Id.;see also Montenegro v. Avila, 365 S.W.3d 822, 826-27 (Tex.App.-El * Paso 2012) (not designated for publication) (concluding evidence sufficient to support finding that husband fraudulently induced wife to marry). Significantly, fraud requires a material misrepresentation. See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 276 (Tex.1995). A material misrepresentation, as an element of fraud, means a reasonable person would attach importance to and would be induced to act on the information in determining his cause of action. Italian Cowboy Partners, Ltd., v. PrudentialIns. Co., 341 S.W 3d 323. 3' 7 (Tex.2011). Wife fails to explain the distinction, ifany, between the materiality requirement imposed by the statute and the "essential to the relationship" standard she seeks to ha\ e us impose. The trial court found that Wifemade material misrepresentations to induce Hu:.band to marry her. Because the trialcourt was not required to also determine whether the frs.ud "went to the essentials of the marital relationship," we cannot conclude it erred in failir j to do so. Wife's first issue is overruled. The judgment of the trial court is affirmed. All Citations 371 S.W.3d 596 Footnotes Wife states "there is little Texas case law defining this standard.' Wf have found none. End of Document ©2015 Thomson Reuters No claimto ongmal U S. Government Works Westlaw ©2015 Thomson Reuters Privacy Statement Accessibility Suppliei Terms Contact Us 1-800 REF-ATTY (1-800-733-288B) Improve Westlaw {**§ THOMSON RtuTtRS OftS https://a.next.westlaw.com/Document/I693e9d46befdl 1e19159... 12/17/2015 Not • Legal Professional? Visit our consumer site Register [ Log-In Search FindLaw CASES & CODES PRACTICE MANAGEMENT JOBS & CAREERS LEGAL NEWS BLOGS SERVICE PROVIDERS Forms LawTechnology LawyerMarketing Corporate Counsel Law Students JusticeMail Newsletters Find Law Caseiaw Texas TX Ct App MORSE v. MORSE MORSE v. MORSE FindLaw Career Center print Font size: A n-sn Attorney Court of Appeals ofTexas,El Paso. Corporate Counsel Academic Gary Edward MORSE, Appellant, v. Dana Ann MORSE, Appellee. Judicial Clerk Summer Associate Intern No. 08-09-00046-CV. Law Libranan Decided: August 31, 2010 Search Jobs Post a job | View Wore -ofcs Before CHEW, CJ., McCLURE, andRIVERA, JJ. Kevin Acker, for GaryEdward Morse. David W.Lindemood, for Dana Ann Morse. OPINION Gary Edward Morse appeals anorder entered ona motion tocompel execution ofclosing documents andan original petition forpost-divorce division ofproperty. This court ordered theparties toattend mediation pursuant toSection 154.021 oftheCivil Practice and Remedies Code and they entered into anirrevocable mediated settlement agreement (MSA). Among otherthings, theagreement required Gary todismiss this appeal. Gary hasinstead filed a motion tosetaside theMSA. For thereasons thatfollow, we deny themotion and dismiss the appeal. FACTUAL SUMMARY Dana Morse filed apetition fordivorce onJuly 20,2007. The trialcourt signed afinal decree onSeptember 25, 2008.Neither oftheparties appealed. Dana laterfiled anoriginal petition forpost-divorce division ofproperty shealleged Gary had hidden during the pendency ofthedivorce. She also filed amotion tocompel execution of closing documents. On February 18,2009, the trial court entered anorder addressing both themotion to compel and the petition for post-divorce division ofproperty. Gary filed notice ofappeal indicating his intent toappeal from thatorder. Pursuant toour order, the parties attended mediation and, according tothe status report filed byDana, they resolved all matters ofcontroversy between them. Dana attached toher report a copy ofthe MSA signed bytheparties and their attorneys. Among other things, Gary agreed todismiss his appeal as part ofthe settlement agreement. He did not comply with the agreement but instead filed amotion to set it aside ontheground that Dana had intentionally breached theagreement bydamaging some items ofproperty awarded tohim. Dana responds that because the MSA satisfies the requirements ofSection 6.602 ofthe Family Code,it is not subjectto revocation byeither party. MEDIATED SETTLEMENT AGREEMENT Amediated settlement agreement isimmediately binding ontheparties iftheagreement: (1) provides ina prominently displayed statement that isin boldfaced type, capital letters, or underlined, that the agreement "is not subject torevocation"; (2) issigned bythe parties; and (3) issigned by the parties' attorneys who are present atthe time ofsigning. Tex.Fam.Code.Ann. §6.6o2(b)(Vernon 2006). Ifan MSA meets these requirements, aparty isentitled tojudgment notwithstanding Rule 11 ofthe Texas Rules ofCivil Procedure or another ruleoflaw. Tex.Fam.Code.Ann. §6.602(c). Compliance with Section 6.602 makes theagreement an exception toSections 7.001 and 7.006, which allow revision and repudiation ofsettlement agreements. Tex.Fam.Code Ann. §§ 7.001,7.006; InreJoyner, 196 S.\V.3d 883,889 (Tex-App.-Texarkana 2006, pet. , denied). Acourt is not required to enforce an MSA ifitis illegal in nature or procured by fraud, duress, coercion, orother dishonest means. Joyner, 196 S.W.3d at890; Boyd v.Boyd, 67S.W.3d 398,404-05 (TexApp.-Fort Worth 2002, no pet.)(holding that §6.602 mediated settlement agreement may be subject to rescission due tointentional nondisclosure.); InreKasschau, 11 S.W.3d 305, 312 (TexApp.-Houston [14th Dist.] 1999, orig. proceeding)(holding that amediated settlement agreement may be set aside on the ground of illegality). Gary does not dispute that the MSA meets all ofthe requirements of Section 6.602. Unless he can establish a ground for revocation, itis binding. The only ground Gary alleges is that Dana intentionallybreached the settlement agreement with malice by damaging certain items ofproperty. He cites no authority that an MSA can be revoked due to aparty's alleged intentional breach. Because Gary has failed to assert aviable ground for setting aside orrevoking theMSA, wedeny hismotion. The terms ofthe MSA require Gary to dismiss this appeal. Inthe interest ofjudicial economy, we will not require Gary to file aformal motion. Instead, we sua sponte dismiss the appeal. ANN CRAWFORD McCLURE, Justice. RESEARCH THE LAW Cases SCoaes /Op.n.or SLm-r-ar.es /Sarr-p.e Business Contracts / Pesea-c|- An Attorney or Law Firm MANAGE YOUR PRACTICE Law Technology / .aw Practce Managed! / .aw F.rrr Marketing Services /Corporate Course. Center MANAGE YOUR CAREER NEWS AND COMMENTARY GET LEGAL FORMS uega Career Jot Searol- / O-ine CuE / Law Student Resources 1News Heaanres / .aw Commenla-y / Featu-ec Documents / News.etters / B-ogs / RSS Feeas Lega;Formsto- Your P-act.ce fl^ ABOUT US Compary H story / Med a Relators / Contact Us / Privacy / Advertising / Jobs FIND US ON Copyright O 2015 FindLaw, a Thomson Reuters business. Alt rights reserved rW<> §112.001. Methods of Creating Trust - Westlaw 23 or when party breaches fiduciary-like relationship. Matter of Carolin Paxson Advertising, Inc, 'c.A.5 (Tex.)1991, 938 F2d 595. Trusts w. 93; Trusts o-94.6; Trusts fc=- 102(1) Court cannot impose trust when parties contemplated another relationship. Stauffacher v, Coadum Capital Fund 1, LLC (App 14 Dist 2011) 344 S W.3d 684, rehearing overruled, review denied. Trusts ;•=-1 Person who purchases property for another but purchases it in his own name holds it on a constructive trust for the other. Baxter v. Williams (Civ.App. 1976) 544 S.W 2d 192, ref. n.r.e.. Trusts Disappointment of a mere expectation does not give rise to a constructive trust- Linder v. Citizens State Bank of Malakoff. Texas (Civ.App. 1975) 528 S.W 2d 90, ref. n.r.e.. Trusts &» 91 Inasmuch as existence of constructive trust may be established by parol evidence, such trust should be imposed with caution. May v. Little (Civ.App 1971) 473 S.W.2d 632, ref. n.r.e.. Trusts -.;-- 109 Defendants took title as constructive trustees where they took title pursuant to a contract to deliver to plaintiffsa deed to property after plaintiffspaid off a first lien note, assumed a principal note and secured defendants' release therefrom. Shenk v. Ziegler (Civ.App. 1964) 382 S.W 2d 790. Trusts i»- 99 Making of valuable or substantial improvements in reliance on agreement is not necessary for constructive trust, but is at most an evidentiary fact tending to prove reliance by plaintiff on defendant to keep agreement that plaintiff should have interest in land. Holland v. Lesesne (Civ.App 1961) 350 S W.2d 859, ref. n.r.e.. Trusts s~. 99 A trust imposed by law irrespective of intention is a "constructive trust," and whereowner of interest in land transfers it inter vivos to another in trust for owner but no memorandum properly evidencing intention to create a trust is signed, and transferee refuses to perform trust, transferee holds interest on a "constructive trust" for owner, iftransfer was procured byfraud, duress, undue influence or mistake, or transfereewas in a confidential relation to owner or transfer was made as security for an indebtedness of owner Mills v. Gray (Sup. 1948) 147 Tex. 33. 210 S W.2d 985. Trusts *»• 94 Where employer claimed to have paid employee, ontermination ofemployment, an amount in excess of that due, and made an agreement withemployee pursuant to whichemployee deposited such amount in a bank in his own name as trustee, upon employer's agreement to makea prompt statement as to employee's account with employer, therewas notrust created between employer and employee either expressly, constructively, or byimplication of law. MexicanCoal &Coke Co. v. Ruckman (CivApp. 1921) 229 S.W. 347 Trusts «*. 34 (2); Trusts ..--95 — Application of trust code, constructive trusts Trust Actdid notapply to invalidate constructive trusts. Shenk v. Ziegler (Civ.App. 1964) 382 SW 2d 790. Notwithstanding statute which declared express trusts in land invalid unless created by a writing, constructive trustas toreal property was enforceable. Erwin v. Hays (Civ App. 1954) 267 S.W 2d 884, ref. n.r.e.. Trusts *» 92.5 Aconstructive orresulting trust wasnot inhibited by statute. Toile v Sawtelle (Civ App. 1952) 246S.W2d916, error refused. Trusts s<«- 63.5; Trusts ;•>•>• 92.5 Statute did not prohibit enforcement ofconstructive trustof real estate based on parol agreement. Howard v. O'Neal (Civ App. 1952) 246 S.W.2d 907, ref. n.r.e. Trusts t- 92.5 The rule thata constructive trust would be imposed toenforce breach ofa parol promise to reconvey land where a grantee refused to perform relying on the Statute of Frauds was not affected by the Texas Trust Act Gray v. Mills (Civ App 1947) 206 SW2d 278, affirmed 147 Tex. 33, 210 S.W.2d 985. Trusts *- 94 — Equitable remedy, constructive trusts Constructive trustis not in reality a trust, but isanequitable remedy Oak Cliff Bank & TrustCo v Steenbergen (Civ.App 1973) 497 S W.2d 489, ref. n.r.e., Baxter v Williams httDs://a.next.westlaw.com/Document/NDAF78A80BE7411D9... «FP'7 12/18/2015 §. 112.001. Methods of Creating Trust - Westlaw 23 (Civ.App.1976) 544 SW.2d 192, ref. n.r.e.; Lowther v Lowther (Civ.App.1979) 578 S W2d 560, ref. n.r.e Under Texas law, constructive trust generally arises when person with legal title to property owes equitable duties to deal with property for benefit of another. Matter of Carolin Paxson Advertising, Inc., CA.5 (Tex.)1991, 938 F.2d 595. Trusts »« 91 Constructive trust remedy, by its nature, is broad and flexible, and being remedial in character, constructive trusts have very broad function of redressing wrong or unjust enrichment in keeping with basic principles of equity and justice. First Nat Bank of AmariHo v. Bauert (App. 7 Dist. 1981) 622 S.W.2d 464. Trusts «•••-. 91 Equitable remedy of constructive trust is broad and far reaching and is designed to circumvent technical legal principles of title and ownership in order to reach a just result. Peirce v. Sheldon Petroleum Co. (Civ.App 1979) 589 S.W.2d 849. Trusts %«• 91 Westlaw. C 2015 Thomson Reuters Privacy Statement Accessibility Supplier Terms ContadUs 1-800-REF-ATTY (1-800-733-2889) Improve Westlaw £ ^ T,,0VSON sturcss 1 2*8/201 httns://a.next.westlaw.com/Document/NDAF78A80BE7411D9... 12/18/2015 Van Zandt v. Van Zandt - Westlaw home on property and deed of 134 Divorce trust to secure money 134V Spousal Support, Allowances and borrowed to construct home Disposition of Property were executed by both 134V(D) Allocation of Property and Liabilities; husband and wife and both Equitable Distribution husband and wife entered 134V(D)9 Proceedings for Divisionor "safe keeping agreement" with Assignment bank as to proceeds from sale. 134kB76 Evidence 134k876 5 Weight and Sufficiency 1 Case that cites this headnote 134k876 5(4) Gifts, inheritance, and change of forrr (Formerly 134k876, 134k2S3(2), 134k253) Divorce %~ Trial court has broad discretion 134 Divorce in partitioning property in 134V Spousal Support, Allowances, and divorce proceedings. Disposition of Property 134V(D) Allocation of Property and Liabilities; Equitable Distribution 134V(D)1 In General 134k653 Discretion of court in general (Formerly 134k252 1. 134k252) Attorneys and Law Firms '323 Hamblen &Hamblen, Presley E. Werlein, Jr., Houston, forappellant. George W. Eddy, Edgar E. Townes, Jr., Houston, for appellee. Opinion BELL, Chief Justice. In this case the trial court awarded a divorce to appellant and made a division of the property claimed by the parties. The only question on appeal is whether there was error in the jury verdict when the jury failed to find that certain property came to appellant in settlement of her deceased's mother's estate. Appellant contended in the trial court by proper pleadings, and contends here, that her father, R. H. Fonviiie, in 1937, gave her $2500.00 with which she purchased five acres of land on Sage Road in Harris County. It is her position that this $2500.00 was given her in partial settlement of her interest in her deceased mother's estate and thus the land purchased with such money became her separate property. The tract was sold in 1963 for $438,000.00. The net proceeds from the sale, less taxes and expenses, are now represented by assets in an Investment Advisory Agency Account with Texas National Bank of Commerce. Appellee contends that the Agency Accounts are community property or at least jointly owned. The court submitted Special Issue No. 3 to the jury, which read as follows: 'Do you find from a preponderance of the evidence that the sum of $2500 00 paid to William H. Wilson and wife as consideration for the conveyance of the 5 acres of land at the northwest corner of Sage and Westheimer, known as 2530 Sage Road, was delivered to the Plaintiff, Beverly Fonviiie Van Zandt, by her father. R. H. Fonviiie, in partial settlement of her interest in the estate of her deceased mother, Lillian Henrietta Racke Fonviiie?' The jury answered, 'We do not' In its judgment the court divided the Investment Advisory Account equally between the parties. Appellant asserts three points of error, contending as follows: fr« % thru* °^ httrm-//a npvt westlaw r.nm/F)nmiment/Tr.hSH7h25eha611 HQ8^e7 19/1 8/901 S Van Zandt v. Van Zandt - Westlaw 1.Thecourt erred in submitting theissue because there was nocompetent evidence to support its submission, but the evidence conclusively and as a matterof lawestablishedthe affirmative of the fact inquired about. 2. Theanswer ofthe jury is so against the overwhelming weight and preponderance ofthe evidence as to be manifestlywrong. 3. Wherea case is triedon the wrong theoryjustice requiresa reversaland remandfor retrial. The contention here is that appellee tried the case on the theory thatthe property was community whenitcould notas a matteroflawbe such butwas eitherthe separate property ofappellant '324 orwas jointly owned by the parties, the interest ofeach constituting a part of their respective separate estates. Appellant was the daughter of R. H. Fonviiie and Lillian Henrietta Racke Fonviiie. Her motherdied intestate in 1916 whenappellantwas seven years old.She had a younger sister, Irma, who is now Mrs . Julius Garrett. Mr. Fonviiie married Clara McCormick in 1925. To this marriage was born a daughter, Clarita, who is now Mrs. Neil Buie. In July, 1916, Mr. Fonviiie received authority from the County Courtto act as community survivor. He filed withthe court an inventory of the community estate It, together withits appraisal, was approved by the court. It showed several pieces of real estate valued in the aggregate at $14,900.00, personal property valued at $7,700.50 and cash of $500.00. The largest item of personal property was 'one drug store, stock, etc' valued at $4,150.50. The other personal property consisted of notes Appellant and appellee were married in 1935. On December 30, 1937, a deed to the five acre tract of land above mentioned was executed by Wm. H. Wilson and wife, as grantors, and appellee, W. K, Van Zandt, was named as grantee. It is this conveyance that gives rise to the real controversy here involved. In the latter part of 1938 the parties built their home on the tract employing borrowed money. This money would be community property. There is no controversy concerning the status of the improvements. The evidence all shows that the $2500.00 used to pay the purchase price of the five acre tract was furnished by Mr. Fonviiie by delivery of his check to appellant. No contention is made that this was a loan. We suppose appellee's contention that the land became k Appellant testified that her father handed her the money with which to pay for the property. She did not remember whether it was in cash or a check though as she best remembered it was represented by her father's check. She took the check to Judge Wilson from whom the purchase was made. She attended to having the deed executed. The reason appellee's name appeared as grantee was because he had told her if the deed was not in his name, he would not be able to borrow money with which to build their house. Later when the money was borrowed to build the home, and the mechanics' lien and deed of trust were executed, appellee handled the transactions though appellant joined in their execution. Appellee testified in person and part of the testimonyhe had given in a depositionwas read into evidence by appellant's counsel. In the depositiontestimony he stated that the estate of Mr. Fonviiie and his first wife, as shown by the records, was small. He stated the distribution to appellant and her sister was accomplished before his marriage to appellant. (Thiswas incorrect because in 1942 Mr. Fonviiie conveyed to his two daughters real estate apppearing on the inventory ) Hethen said that 'Mr Fonviiie being partial to Beverly and Irma,frequently handed them or gave them money and things of value with the joking remark, and withthe ever-present smile, This is a part of your mother's estate.' After stating that until three or fouryears beforethe timeof the deposition he and appellant occupied as theirhomethe propery on Sage Road, appellee was asked, 'Did you ownthat property?' He answered, The property was acquired bydeed in my name. Itremained in my name until the date of the sale to Lewis Funeral *325 Home.' The property was bought from Judge Wilson for$2500.00. When asked the source ofthe $2500.00, appellee stated, 'Prior to the purchase * ** Mr. Fonviiie told us that he would be very glad to give us a lotso we might build a home on it. He set an amount ofsome$4,000,00 We looked at lots in various parts of the city and ***we decided itwould be advantageous to buyacreage ***' fc« * V,ff«c.//o r,Pvt «r*»ct1aw rr»m/nnrnmpnt/TphSfl7h9Sphflfi1 1 dQ83e7 1 9/1 8/901 5 Van Zandt v. Van Zandt - Westlaw Fonviiie Van Zandt, her heirs and assigns' all their right, titleand interest. The habendum clause named 'Beverly Fonviiie Van Zandt'. Itis,we think, of significance that neither inthe agreement above noted norin the quitclaim deed was there a recital that the property was conveyedto appellantas a part of her separate property. Special Issue No. 3, as worded, cast the burden on appellant to showbya preponderance of the evidence that the $2,500.00 paidforthe Sage Road property was delivered to her by her father in partial settlement of her interest in her deceased mother's estate. The effect of the jury's answer was to find that she had not discharged that burden to the satisfaction of the jury. Appellant's position is that all evidence shows that the $2,500.00 was given appellant as partial settlement of her mother's estate. The approach is twofold. First, it is contended that the agreement of November 17,1955, whichcontains the provisionswe have quoted, is contractual in nature and establishes the fact that the $2,500.00 came to appellant in partial settlement of the estate and therefore parol evidence cannot be employed to prove otherwise. Secondly, it is contended that even if parol evidence may be considered, all the evidence shows as a matter of law that the money employed to purchase the Sage Road property was transmitted to appellant by her father in partial settlement of her mother's estate 1 2 The deed from Wm. H. Wilson and his wife in 1937 to appellee presumptively vested title in the community estate of appellant and appellee, it being executed and delivered during the marriage relationship and there being no recital that the conveyance was to the separate estate of the grantee. Van et al. v. Webb, 147 Tex. 299, 215 S.W.2d 151. All cases hold that under such circumstances parol evidence is admissible to show the true consideration for the deed. Were this the only instrument involved, clearly it would be permissible to consider parol evidence that in fact the consideration was the payment of money that came to appellant as an inheritance from her mother. However, appellant urges that the agreement of 1955 was contractual in nature and it in effect recited '327 that the property on Sage Road was conveyed to appellant in partial settlement of her mother's estate and the parties to the agreement contracted not to question the conveyance of the Sage Road property to appellant from her father and therefore parol evidence cannot be considered. We hold that under the facts of this case parol evidence was admissible on the issue as to whether the $2,500.00 with which the land was purchased was delivered to appellant in partial settlement of her interest in her mother's estate. 3 The character of the title is determined as of the date it vested. It vested upon execution of the deed from Wilson and his wife to appellee in 1937. Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777, Bianchard v. Blanchard, 293 S.W.2d 825 (CCA), ref., n.r.e.; Speers Marital Rights in Texas, 4th Edition, Sec. 388. As above stated the titlewas presumptively in the community, but this could be rebutted 4 5 This was not changed by the 1955 agreement. That agreement, though appellee was a partyto it, did not result in the acquisition of the title. Too, itis noted that the agreement merely made a recitation of past fact, that is, that Mr. Fonviiie had conveyed or caused to be conveyed to appellant the property on Sage Road in partial settlement of her mother's estate. There is no recital at all concerning the source of the $2,500.00. The parol evidence rule does not preclude evidence which refutes the recitationof a past fact. McCormick and Ray, Texas Lawof Evidence, Second Edition, Sec .1612, pp. 454—455. The recitation is but evidentiary. A statement in a deed that the considerationwas separate or community is butan evidential fact. McCormick and Ray, Texas Law ofEvidence, Second Edition, Sec. 1641, p. 495. McCormick and Rayfurther state inthe same section that consequences which thelaw attaches toa set offacts cannot be prevented bya writing which states facts of a transaction erroneously. 6 Applying these rules to thefactsofthiscase parol evidence was admissible, because the recital we noticed is of a past fact coming afterthe deed into appellee. The agreement, as shown bythe documentary evidence recites facts incorrectly. Mr. Fonviiie did notconvey theproperty toappellant, nor did hecauseitto beconveyed to her. Shecaused it to be conveyed by Mr. and Mrs. Wilson to appellee. Theproperty was never a part ofthefirst community. fcw a Vittr»c-//a nevt westlaw r.nrn/T)r>ci]ment/Tcb5d7b25eba61 Id983e7... 12/18/2015 Van Zandt v. Van Zandt - Westlaw 7 In the testimony given in person at the trial appellee was asked who first brought up the matter ofpurchasing theland and hestated itwas by mutual agreement with appellant. He andappellant looked over several sites and agreed ontheSageRoad property. When the property was actually transferred he was notpresent. Hedid notprocure the deed. Mr. Fonvile furnished the money. Hedenied he hadanydiscussion with appellant inwhich he told her he should be namedas grantee in the deed from Judge Wilson. Documentary evidence reflects joint action bythe parties with regard to the property. The mechanics' lien contract for the construction of the home and the deed of trust to secure money borrowed to constructthe home were executed by both parties. In 1959,when the parties were considering selling, appellant wrote appellee, 'Mr. Saidus came down yesterday and said he had a buyerforour place. How muchdo youwant? He thinks we should sell. He said for you to phonehim.' In 1960the parties executed a 'listing' agreementto Saidusand Rowe, giving them the exclusive rightto sell the property. They both, in 1963, executed a contract to sell. The deed to Lewis Funeral Home in 1963 referred to the consideration as paid to 'us' and to the $438,000.00 'paid to Grantors.' In May, 1963,the partiesentered into a 'Safe Keeping Agreement' with the Texas National Bank of Commerce with regardto the money received. Itwas signed by both parties and required that any instructions to the Bank must be in writing and signed byboth parties. On May 15, 1963, an 'Investment Advisory Agency Agreement,' involving the net proceeds from the sale was entered into with the same Bank. In it the parties together were referred to as 'Principal'. In January, 1966, appellant attempted to have the assets of the AgencyAccounttransferred to a trust over whichshe had sole control. She did this on the advice of a representative of the Bank that the assets belonged to her. Appellant notified appellee of the action. Appellee demaned a termination of the trust and a return of the assets to the jointaccount. The Bank acceded to the demand. In 1945, while appellee was serving in the UnitedStates Navy, Mr. Fonviiie wrote him a friendly letter and at one point in it referred to 'your nice home'. Mr. Fonviiiedied testate in 1954. For some reason, which is not reflected by the record, his will was not offered for probate. Instead of having the will offered for probate, his widow, Mrs. Clara McCormick Fonviiie, and his three daughters, Beverly Van Zandt, Irma Garrett and Clarita Buie, executed an agreement not to probate the will but to take under the laws of descent and distribution. It was agreed that all property possessed by Mr. Fonviiie at his death belonged to the community estate of Mr. Fonviiie and his surviving spouse. Mrs. Fonviiie received one-half of the estate and each daughter received one-sixth. A partition was also effected. The husband of each daughter executed the agreement as a party. The part of the agreement that is of primary importance here is that which deals with distribution of the estate of appellant's mother. After dealing with the second community, the agreement made the following provisions: 'It is understood and agreed that during the lifetime of R, H. Fonviiie there was a settlement of the Estate of Lillian Henrietta Racke Fonviiie, mother of Beverly Fonviiie Van Zandt and Irma "326 Fonviiie Garrett, and that transfers of property, in absolute fee simple, and other things of value included: To Beverly Fonviiie Van Zandt he conveyed or caused to be conveyed the following: '(a) Five (5) acres of land at the northwest corner of Sage and Brownway (Westheimer) Roads, upon which W. K. Van Zandt's residence (known as 2530 Sage Road) is located.' Then other properties and moneys that were transferred to Beverly or Irma are listed. Following such listing is the following provision: 'It is distinctly understood and agreed that the conveyance of property above mentioned from R. H. Fonviiie to his daughters Beverly Fonviiie Van Zandt and Irma Fonviiie Garrett are hereby recognized and approved and are not to be questioned by any of the parties hereto, their heirs or assigns. In likemanner the proceeds of the life insurance policiesabove referred to in favor of Beverly Fonviiie Van Zandt, Irma Fonviiie Garrett and Mrs. Clara McCormick Fonviiie are recognized to be fully owned by the above named parties, free from any claim of any party hereto.' On the same day the above agreement was signed, the parties to it, except for appellee, executed a quitclaim deed to Beverly Fonviiie Van Zandt. The instrument expressed as consideration the sum of $10 .00 paid by 'Beverly Fonviiie Van Zandt, wifeof W. K. Van Zandt'. The grantors did 'bargain, sell, release and foreverquitclaim unto the said Beverly k$> % Vi«™-/7ci n^vf wPctlQw ™m/nnriiment/TrhSH7h9Sehafi1 1 HQ83e7 1 9/1 8/901 ^ Van Zandt v. Van Zandt - Westlaw Further, with regard to the contention that the agreementwas contractual as to the property, it is noted that there is nowherea conveyanceto appellantof the property as a part of her separate estate. 7 There are many cases dealing with conveyances between husband and wife. All of the leading cases are analyzed and discussed by our Supreme Court in Jackson v Hernandez, 155 Tex. 249, 285 S.W 2d 184. As we understand these cases from reading all of them and from the Supreme Court's interpretationof them in the last cited case, the parol evidence rule is operative to preclude parol evidence not merely because of a contractual consideration in the deed but because the deed from the husband or wife to the other contains the legally operative clauses conveying property to the grantee's separate estate. The same rule is applicable where a spouse though not named as a grantor was instrumental in procuring the deed to be so drawn. The reasoning is that the spouse conveying or causing to be conveyed by deed containing the legally operative granting and habendum clauses conclusivelyevidences an intent to make a giftto the grantee. In none of the instruments here involved were there these legallyoperative clauses. 8 Considering all the evidence, we hold there was an issue of fact as to whether the $2,500.00 was in partial settlement of appellant's mother's estate. Also considering all of the evidence, the material part of which we have recited herein, we cannot "328 say that the jury's answer to Special Issue No. 3 was so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. 9 As previously stated, the court divided the Investment Advisory Account equally with no statement as to whether he considered it community property or the property of both owned in equal proportions. As above stated, we are of the view that under the evidence it could not be community property. Whatever the court's theory the trial court has a broad discretion in partitioning the property. No contention is made that the division made was inequitable. Affirmed. All Citations End of Document © 2015 Thomson Reulers he claim to cngma! U S Government Works Westlaw ©2016 Thomson Reuters Privacy Statement Accessibility Supplier Terms Contact Us 1-800-REF-ATTY (1-800-733-2883) Improve Westlaw |tJ-% THOMSON (!PJT£«S frtf S i_^„„.// „4-„^+1„„, ~~™/7^™lrv,0«+/T,4>^7V'KpKa61 1HQ8^e7 19/18/901^ Chapter 1: The Texas Marital Property System 55 barred her entire cause of action.^ If he had no interest in the recovery, his contributory negligence would not bar her cause of action, m. Gorman v. Gause: Doctrine of implied exclusion keeps two people from making an agreement to change the character of property.$ Doctrine of implied exclusion was applied to a prenuptial agreement, which had declared that no property acquired during the marriage would be community.^ The Court viewed this as an attempt by the parties to fix the character of marital property by means different from that recognized in the state constitution, and held the agreement to be void and unenforceable, n. Strickland v. Webster: Wife had purchased property from her husband with money she earned as a school teacher.^ The couple had entered into an agreement that her personal earnings would be her separate property.$ While that agreement was found to be invalid, because community property law cannot be changed by contract, the deed executed by the husband conveying the property was effective as a gift, o. King v. Bruce: A husband and wife attempted to partition their community property into the separate property of each via an elaborate series of transactions.^ The court held that the couplers attempt was ineffective, as it was not recognized by the constitution as a means of acquiring separate property. i. Article 16 was amended to include $15 after this case. C. The Constitution as Amended in 1948 a. Article 16 $15: Separate and Community Property of Husband and Wife: All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise, or descent, shall be the separate property of the wife; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with her husband; provided that husband and wife, without prejudice to preexisting creditors, may from time to time by written instrument as if the wife were a feme sole partition between themselves in severalty or into equal undivided interests all or any part of their existing community property, or exchange between themselves the community interest of one spouse in any property for the community interest of the other spouse in other community property, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property of such spouse. i. Partition^ H and W hold Whiteacre as community property.^ They decide to split it and one half becomes H$s separate property and one half becomes W$s separate property. ii. Exchanged H and W hold Greenacre and Blackacre as separate property.$ H exchanges his community property interest in Blackacre for W$s community property interest in Greenacre, and so then all of Greenacre is H$s separate property and all of Blackacre is W$s separate property. b. These are two new ways to create separate property. c. Creditors are protected in that if the partition or exchange that creates separate property prejudices creditors, it$s held invalid.$ Fact question. d. These cannot be done in a prenuptial agreement^ the couple must be married. e. Must be done on existing community property i. Can partition a bank account, but cannot partition future interest earned on it.$ Interest earned next year will be community and will have to be partitioned again. ii. If they separated the accounts so each spouse had their own account, the interest earned will still be community property. iii. What do you do to make the interest separate property?^ Do an exchange at the end ofeach year, after the interest has been earned. httns://www.stcl.edu/students/SBA%20Outline%20Bank/Marit... ft?? *1 12/17/2015 Family Code—Title 1 Chapter 3. Marital Property Rights & Liabilities §§3.101 - 3.102 by one of the spouses after marriage by toil, talent, in constitutes his sole-management community property. dustry or other productive faculty belongs to the com [H's] credit reputation is also his sole-management munity estate. Nevertheless, the law contemplates that community property, asitwas acquired, atleast inpart, aspouse may expend a reasonable amount of talent or during the marriage and would have belonged solely to labor inthemanagement and preservation ofhis orher him were he not married." separate estate without impressing acommunity char Medenco, Inc. v. Myklebust, 615 S.W.2d 187,189 acter upon that estate." (Tex.1981). "During marriage, community property Whittlesey v. Miller, 572 S.W.2d 665, 669 (Tex. employment benefits acquired through employment 1978). "In the absence of evidence showing authority, are subject to the sole management, control and dispo the mere relationship of husband and wife does not sition ofthe employee spouse." give the husband authority to contract with regard to Valdez v. Ramirez, 574 S.W.2d 748,750 (Tex.1978). thewife's separate property." "While [W] was employed by the federal government FAM §3.102. MANAGING COMMUNITY and earning future rights to aretirement annuity, those PROPERTY contingent rights were community property, but such (a) During marriage, each spouse has the sole inchoate rights are characterized by the Family Code as management, control, and disposition of the commu 'special community' under [W's] sole management and nity property that the spouse would have owned if control. At 751: Thus, while being earned, the rightto a future Civil Service retirement annuity was thespecial single, including: community of [W], subject to her sole management, (1) personal earnings; control and disposition. As manager of this 'special (2) revenue from separateproperty; community' asset, she had the contract right to select a (3) recoveries for personal injuries; and mode of payment." (4) the increase and mutations of, and the revenue Jean v. Tyson-Jean, 118 S.W.3d 1, 5 (Tex.App.— from, all property subject tothe spouse's sole manage Houston [14th Dist.] 2003, pet. denied). "In general, ment,control, and disposition. community property is subject to the 'joint manage (b) Ifcommunity property subject to the sole man ment, control and disposition of the spouses unless the agement, control, and disposition of one spouse is spouses provide otherwise by power of attorney in writ mixed orcombined with community property subject to ing or other agreement.' To effectuate avalid convey the sole management, control, and disposition of the ance, both spouses must necessarily be joined in a other spouse, then the mixed or combined community transaction, [f ] However, where community property property is subject to the joint management, control, is held in one spouse's name only, there is a presump and disposition ofthespouses, unless thespouses pro tion that the property is sole-management community vide otherwise by power of attorney in writing or other property. [Family Code] §3.104 therefore trumps [Fam. agreement. Code] §3.102. Absent a showing of fraud or notice on (c) Except as provided by Subsection (a), commu the part of persons dealing with the named spouse, this nity property is subject to thejoint management, con sole-management presumption protects third parties trol, and disposition of the spouses unless the spouses who rely on the spouse's authority to deal with the prop provide otherwise by power of attorney in writing or erty." otheragreement. Madrigal v. Madrigal, 115 S.W.3d 32, 34-35 (Tex. History of Fam. Code §3.102: Acts 1997, 75th Leg., ch. 7, §1, eff. Apr. 17, App.—San Antonio 2003, no pet.). "Proceeds from alife 1997.Source: Former Fam. Code §5.22. See also O'Connor's Texas Family Law Handbook (2015), "Manage insurance policy acquired as a benefit of employment ment Rights over Community Property," ch. 2-B, §2, p. 138. during marriage are community property. The policy is ANNOTATIONS the sole management community property of the em ployee spouse, and that spouse may designate the ben eficiary of the policy. [I] Asurviving spouse estab Sole Management Douglas v. Delp, 987 S.W.2d 879, 883 (Tex.1999). lishes aprima facie case of constructive fraud on the GP9 "[H's] loss of earning capacity during the marriage community by proof that the life insurance policy was O'CONNOR'S TEXAS FAMILY CODE 39 10 Family Code—Title 1 Chapter 6. Suit for Dissolution of Marriage §6.602 $k Suit for dissolution of amarriage to mediation on the settlementagreementand, since noallegation waspre Stasis of family violence having been committed against sented that the agreement was illegal, or procured by ^ the'objecting party by the other party. After an objection fraud, duress, or coercion, and there is no indication is-filed, the suit may not be referred to mediation un- the trialcourt sua sponte questioned the legality ofthe •i(,SSi on the request of the other party, ahearing is held agreement, the trial court was required toentera judg and the court finds that a preponderance of the evi ment based on the mediated agreement. ... We hold dence does not support the objection. Ifthe suitis re that the judgment granting the divorce was rendered ferred to mediation, the court shall order appropriate [by oral pronouncement], and since thetrial court had measures be taken to ensure the physical and emo no authority (absent an issue on illegality, duress, etc. tional safety of the party who filed the objection. The or raised either by the parties or the court sua sponte) to der shall provide that the parties not be required to do otherwise, the mediated settlement agreement was have face-to-face contact and that theparties be placed a part ofthedivorce rendition." See also Toler v. Sand in separate rooms during mediation. ers, 371 S.W.3d 477, 479-80 (Tex.App.—Houston [1st 'rliitory of Fam. Code §6.602: Acts 1997, 75th Leg., ch. 7, §1, eff. Apr. 17, Dist.] 2012, no pet.) (court cannot alter ormodify prop 1997 Amended by Acts 1999,76th Leg., ch. 178, §2 (eff. Aug. 30,1999), ch. 1351, Si (i-ffSept. 1,1999). erty division in valid MSA). Sc;also O'Connor's Texas Family LawHandbook (2015), "Mediation," c'i i\ §13.1.1, p. 240; "Mediation," ch.4-D, §10.1.1, p. 414. Leev. Lee, 158 S.W.3d 612, 613-14 (Tex.App.—Fort * " ANNOTATIONS Worth 2005, no pet.). "Given that [Fam. Code] §7.006(a) ... already allows divorcing parties to enter • Milner v.Milner, 361 S.W.3d 615, 618 (Tex.2012). into written agreements without requiring mediation "Unlike other settlement agreements in family law, the concerning thedivision of thecommunity assets and li trial court is not required to determine if the property abilities as well as spousal maintenance, we decline to division is 'just and right' before approving an MSA carve a common-law exception into [Fam. Code] [under §6.602]. And once signed, [the] MSA cannot be §6.602(b) that allows an unmediated settlement agree revoked like other settlement agreements. At 618 n.2: ment to morph into a mediated settlement agreement {MSAs ] thatcomply with ... §6.602 are an exception to based on mere form. We hold that a mediated settle [the] general rule [that a party can revoke consent to a ment agreement necessarily requires mediation and a settlement agreement anytime before thecourt renders mediator. [%] Because therewas no third party present judgment on the agreement]." After evaluating the at the settlement conference between [parties], there MSA the Court remanded the property-division issue was no mediated settlement agreement. Instead, the so the MSA's ambiguity could be resolved and a judg couple's agreement is simply an agreement under ment could be rendered. §7.006(a). Such agreements may be revised or repudi Morse v. Morse, 349 S.W.3d 55, 56 (Tex.App.—El ated before the divorce is rendered unless the agree Paso 2010, no pet.)." [H] does not dispute that the MSA ment is binding under another rule oflaw. The trial meets all ofthe requirements of §6.602. Unless he can court abused its discretion in preventing [H] from re establish a ground for revocation, it is binding. The voking his consent to the settlement on the basis that only ground [H] alleges is that [W] intentionally the agreement was a binding mediated settlement breached the [MSA] with malice by damaging certain agreement." items of property. He cites no authority thatanMSA can be revoked due to a party's alleged intentional breach. Mailhot v. Mailhot, 124 S.W.3d 775, 777 (Tex. Because [H] has failed to assert a viable ground for App.—Houston [1st Dist.] 2003, no pet.). "It is well- setting aside or revoking the MSA, we deny his mo settled that a judgment entered on the agreement of tion " the parties cures all non-jurisdictional defects. Aparty in re Marriage of Joyner, 196 S.W.3d 883, 891 who asks the trial court to accept a settlement agree (Tex.App.—Texarkana 2006, pet. denied). "Section ment and to enter judgment accordingly may not later 6-602 has been classified as a 'procedural shortcut' for attack that judgment. To preserve error for appeal, a enforcement ofmediated settlement agreements in di party who signs ajudgment must specify that his agree ment with the judgment is as to form, but not as to sub vorce cases. ... Here, the parties were entitled to a -judgment incorporating the provisions of the mediated stance and outcome." O'CONNOR'S TEXAS FAMILY CODE M Family Code—Title 1 Chapter 3. Marital Property Rights & liabilities §§3.005 - 3.007 See also O'Connor's Texas Family Law Handbook (2015), "Income riage before the grant could be exercised or the restric from separate-property gift," ch. 2-A, §7.2.2(1), p. 106. tion removed, the period from the date of dissolution of ANNOTATIONS the marriage until the date the grant couldbe exercised or the restriction removed; and Roberts v. Roberts, 999 S.W.2d 424, 432 (Tex. App.—El Paso 1999, no pet.). "Generallyspeaking, one (B) the denominator is the periodfrom the date the who is claiming the existence of a gift has the burden option or stock was granted until the date the grant of proof. However, where the conveyance is from one could be exercised or the restriction removed; and spouse to the other spouse, there is a presumption of (2) if the option or stock was granted to the spouse gift, [f ] A gift by one spouse to another may be set during the marriage but required continued employ aside if it is induced by duress or undue influence. In ment following the date ofdissolution of the marriage such a case, the burden rests with the donee to show before the grant could be exercised or the restriction that the gift was fair and equitable." removed, the spouse's separate property interest is equal to the fraction of the option or restricted stock in FAM §3.006. PROPORTIONAL OWNERSHIP OF PROPERTY which: BY MARITAL ESTATES (A) the numeratoris the periodfrom the date ofdis If the community estate of the spouses and the solution ofthe marriage until the date the grant couldbe separate estate of a spouse have an ownershipinterest exercised or the restriction removed; and in property, the respective ownership interests of the (B) the denominator is the period from the date marital estates are determined bythe rule of inception the option or stock was granted until the date the grant of title. could be exercised or the restriction removed. History ofFam. Code §3.006: Acts 1999,76th Leg., ch.692, §1,eff.Sept. 1, 1999. Amended byActs 2001,77thLeg., ch.838,§3,eff.Sept.1,2001. (e) The computation described by Subsection (d) applies to each component of the benefit requiring FAM §3.007. PROPERTY INTEREST IN CERTAIN EMPLOYEE BENEFITS varying periods of employment before the grant could be exercised or the restriction removed. (a), (b) Repealed byActs 2009, 81st Leg., ch. 768, §11(1), eff. Sept. 1,2009. (f) Repealed by Acts 2009, 81st Leg., ch. 768, (c) The separate property interest ofa spouse in a §11(1), eff. Sept. 1,2009. History of Fam. Code §3.007: Acts 2005,79th Leg., ch.490, §1,eff. Sept. 1, defined contribution retirement plan may be traced us 2005. Amended byActs 2009,81st Leg., ch.768, §§1,11(1),eff. Sept. 1,2009. ing the tracing and characterization principles that ap Author's comment: The 2009repeal ofFamily Code§3.007(a)and (b) ef plyto a nonretirement asset. fectively reinstates the common-law formula forcalculating the community's interestindefined-benefit plansas described inBerry o.Berry, 647 S.W.2d 945 (d) Aspouse who is a participant in an employer- (Tex.1983), and Taggart o. Taggart, 552S.W.2d 422(Tex.1977). See alsoO'Connor's Texas FamilyLawHandbook (2015), "Dividing & provided stock option plan or an employer-provided re Confirming Qualified Private Retirement Benefits," ch. 7-E, p.836. stricted stock plan has a separate property interest in the options or restricted stock granted to the spouse annotations under the plan as follows: Generally (1) ifthe option or stock wasgranted to the spouse before marriage but required continued employment In re Marriage ofReinauer, 946 S.W.2d 853, 857 during marriage before the grantcould be exercised or (Tex.App—Amarillo 1997, writ denied). "[Retire the restriction removed, the spouse's separate property ment pay ... connotes an earned property right that ac interest is equal to the fraction of the option or re crued by reason ofyears ofservice ordeferred compen sation earned during each month of service. In other stricted stock in which: words, the payment must, atthe very least, be aform of (A) the numerator is the sum of: compensation accruing to the individual due to his (i) theperiod from thedate theoption orstock was years ofservice with the employer. Discretionary pay granted until the date ofmarriage; and ments made for purposes other than as compensation (ii) if the option or stock also required continued earned during an employee's tenure do not satisfy employment following thedate ofdissolution ofthemar- these criteria and, thus, are not retirement payor ben- 36 O'Connor's Texas Family Code °i» U ^^^^^^%" Boyd v. Boyd - Westlaw 17 WestlawNext" Boyd v. Boyd Court ofAppealsofTexas,FortWorth. January 3, 2002 67S.W.3d396 ifipprox 23 pages) SELECTED TOPICS > Distinguished by Milner v Milner. Tex, March 9, 2012 Divorce Alimony, Allowances, and Disposition of °S Original Image of67S w 3d398(PDF) Property Military Retirement Pension Benefits of 67 S.W.3d 398 Spouse Court of Appeals of Texas, Interpreting Broad Release Provisions of Fort Worth. Property Settlement Agreement Disposition of Property Randall Cary BOYD,Appellant, Property Division Portions of Divorce v. Decree Ginger BOYD,Appellee. Secondary Sources No. 2-00-218-CV. Jan. 3, 2002. Pension or retirement benefits as subject to award or division by court in Wife filed for divorce. Parties entered into a mediated settlement agreement (MSA) that wife settlement of property rights between spouses later rejected. The 322nd District Court, Tarrant County, Frank W Sullivan, III, J., held the MSA was unenforceable and signed divorce decree after trial on property issues. Husband 94 A.L R.3d 176 (Originally published in 1979) appealed. The Court of Appeals, Livingston, J., held that: (1) failure to disclose bonus in ...This annotation collects the cases MSA rendered it unenforceable; (2) award of half of retirement benefits to wife did not addressed to the issue whether a spouse's pension or retirement benefits are subject to constitute division of husband's separate property; (3) husband lacked standing to complain award or division by the court in settlement of that decree improperly imposed duties on Internal Revenue Service and his employer; and property rights between spouse... (4) amounts withheld from bonus payments for taxes, insurance, and interest were § 10.10.Apportionment of retirement community property subject to division. benefits 38 Tex. Prac, Marital Property And Affirmed. Homesteads § 10.10 . .Retirement benefits are regarded as employee compensation earned during a West Headnotes (29) certain employment period. As such, retirement benefits "earned by either spouse Change View during the marital relationship are part of th... § 22:38. When benefits are payable Compromise and Settlement 3 Tex. Fam L. Serv. § 22:38 Ordinarily, settlement Compromise and Settlement . .Early retirement is generally subsidized by agreements arising from 89! In General the employer. A qualified domestic relations mediation are not binding order (QDRO) provides for payment of the 89k1 Nature and Requisites actuarial amount of the early retirement where one party withdraws benefit. It does not provide f... 89k5 Making and Form of Agreement consent to the agreement, 89kS(1 In general See More Secondary Sources unless the other party successfully sues to enforce the settlement agreement as a BRIEF OF PETITIONER ON THE contract that complies with rule MERITS governing enforceable 1996 WL 694154 agreements. Vernon's Boggs v. Boggs United States Supreme Court Petitioners Ann Texas Rules Civ.Proc . Brief. December 03, 1996 Rule 11. ...FN* Counsel of Record The opinion of the United Stales Court of Appeals for the Fifth 10 Cases that cite this Circuit Is reported at 82 F.3d 90 (5th headnote Cir.1996) and is reprinted in the Appendix to Petition for Certiorari at Cer.. Divorce BRIEF OF THE EMPLOYERS COUNCIL ON FLEXIBLE COMPENSATION AS Unilateral withdrawal of 134 Divorce AMICUS CURIAE SUPPORTING consent does not, however, 134V Spousal Support. Allowances, and PETITIONER negate the enforceability of a Disposition of Property 1996 WL 708046 mediated settlement Settlement Agreements and Boggs v. Boggs 134V(E) United States Supreme Court Amicus Brief agreement in a divorce Stipulations December 06, 1996 proceeding, and a separate Revocation, Rescission and ...The Employers Council on Flexible suit for enforcement of a Repudiation by Acts or Agreements of Compensation ("ECFC") submits this brief amicus curiae supporting Petitioner. The Parties contract is not necessary. parties have consented to the filing of this brief Correspondence reflecting the p... V.T.C A., Family Code § 6.602. Unilateral withdrawal (Formerly 205k279(2)) BRIEF FOR THE UNITED STATES AS 13 Cases that cite this AMICUS CURIAE SUPPORTING headnote PETITIONER 134 %* 1996 WL 714742 134V Boggs v. Boggs u++-„.//„ «av+urMtlo„, ™™/r»^nm^r.t/Tn761 14np7h?1 IHQhffif) 12/17/2015 LOCAL. RULES TRAVIS COUNTY 3.3 Damaging or destroying the tangible property 4. PERSONAL AND BUSINESS RECORDS IN ,f one or both of the parties, including any document DIVORCE CASE. If this isa divorce case, both parties hat represents or embodies anything of value. to the marriage are ORDERED to refrain from doing the following acts: 3.4 Tampering with the tangible property of one or 4.1 Concealing or destroying any family records, ooth of the parties, including any document that repre property records, financial records, business records or sents or embodies anything of value, and causing pecu any records of income, debts, or other obligations. niary loss totheother party. 3.5 Selling, transferring, assigning, mortgaging, 4.2 Falsifying any writing or record relating to the property ofeitherparty. encumbering, or in any other manner alienating any of the property of either party, whether personal property 4.3 "Records" include e-mail or other digital or or real estate property, and whether separate orcom electronic data, whether stored on a computer hard munity, except as specifically authorized by this order. drive, diskette or other electronic storage device. 3.6 Incurring any indebtedness, other than legal 5. INSURANCE IN DIVORCE CASE. If this is a expenses in connection with this suit, except as spe divorce case, both parties to the marriage are OR DERED to refrain from doing the following acts: cifically authorized by this order. 3.7 Making withdrawals from any checking or sav 5.1 Withdrawing or borrowing in any manner all or ings account in any financial institution for any pur any part of the cash surrender value of life insurance pose, except as specifically authorized by this order. policies on the life ofeither party, except as specifically authorized bythis order. 3.8 Spending any sum of cash in either party's pos 5.2 Changing or in any manner altering the benefi session or subject to either parry's control for any pur ciary designation on any life insurance on the life of pose, except as specifically authorized by this order. either party or the parties' children. 3.9 Withdrawing or borrowing in any manner for 5.3 Canceling, altering, or in any manner affecting any purpose from any retirement, profit-sharing, pen any casualty, automobile, or health insurance policies sion, death, or other employee benefit plan or employee insuring the parties' property of persons including the savings plan or from any individual retirement account or Keogh account, except as specifically authorized by parties' minor children. 6. SPECIFIC AUTHORIZATIONS IN DIVORCE this order. CASE. If this is adivorce case, both parties to the mar 3.10 Signing or endorsing the other party's name riage are specifically authorized to do the following: on any negotiable instrument, check, or draft, such as 6.1 To engage in acts reasonable and necessary to tax refunds, insurance payments, and dividends, or at tempting to negotiate any negotiable instrument pay the conduct of that party's usual business and occupa able to the other party without the personal signature tion. 62 To make expenditures and incur indebtedness of the other party. 3.11 Taking any action to terminate or limit credit for reasonable attorney's fees and expenses in connec or charge cards in the name of the other party. tion with this suit. 6.3 To make expenditures and incur indebtedness 3.12 Entering, operating, or exercising control over for reasonable and necessary living expenses for food, the motor vehicle inthe possession of the other party. clothing, shelter, transportation and medical care. 3.13 Discontinuing or reducing the withholding for 64 To make withdrawals from accounts in finan federal income taxes on wages or salary while this suit cial institutions only for the purposes authorized by this is pending. 3.14 Terminating or in any manner affecting the service ofwater, electricity, gas, telephone, cable televi 0n1\ SERVICE AND APPLICATION OF THIS OR- DER sion, or other contractual services, such as security, pest control, landscaping, or yard maintenance at the 7.1 The Petitioner shall attach acopy^f this order other party's residence or in any manner attempting to to the original petition and to.each, copy £*£*£ withdraw any deposits for service in connection with At the time the petition is filed if thFe»l °" d failed to attach acopy of this order to the petition such services. 1463 O'CONNORS TEXAS FA«.LY CODE CERTIFICATE OF SERVICE EFILED WITH FIFTH COURT OF APPEALS DATED J^I^OlCkpJT SIGNED a% Qg*o \^>U>ho lOUx APPELLANT DIANA FAY BASS
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