in Re: The Estate of Bobbie Willingham

• Court: Court of Appeals of Texas
• Decided: December 20, 2021
• Docket: 05-20-00235-CV
• Status: Published

Opinion

AFFIRMED as MODIFIED and Opinion Filed December 20, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00235-CV

IN RE THE ESTATE OF BOBBIE WILLINGHAM

On Appeal from the Probate Court No. 3 Dallas County, Texas Trial Court Cause No. PR 17-04085-3

MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Smith Bobbie Willingham signed a simple will in which she left her estate to

appellant Angel Elizondo. When Elizondo submitted the will for probate,

Willingham’s son, appellee Robert Willingham, challenged the will. A jury

determined Bobbie’s will was invalid and awarded the estate to Bobbie’s heirs at

law. The jury also found that Elizondo committed civil theft in excess of $20,000

against Bobbie’s estate and awarded attorney’s fees.

On appeal, Elizondo challenges (1) the legal and factual sufficiency of the

evidence supporting the jury’s finding that the will was invalid, (2) the factual

sufficiency of the evidence supporting the jury’s finding of civil theft, and (3) the

legal and factual sufficiency of the evidence supporting the award of appellate attorney’s fees. Because the record contains no evidence supporting the award of

appellate attorney’s fees, we reverse and modify the judgment to delete the appellate

attorney’s fees. As modified, we affirm the trial court’s judgment.

Background

The Elizondos moved into the Willinghams’ neighborhood in the early

nineties. The neighbors saw each other daily between 2000 and 2010. Mr.

Willingham was more outgoing and regularly visited with the Elizondos in the front

yard. Bobbie, his wife, was more reserved and interacted only on occasion. Despite

Bobbie’s reserved nature, friends described her as “feisty, strong-willed,” and she

said what she wanted.

After Mr. Willingham died in 1996, Bobbie became even more reserved and

rarely left the house. Elizondo continued to help Bobbie and her adult daughter, and

he often took Bobbie to doctor’s appointments.

In August 2017, Bobbie paid off Elizondo’s mortgage and transferred her car

title to him. Whether Elizondo influenced her to make these transactions later

became a point of contention with Bobbie’s family.

On August 25, 2017, Bobbie was admitted to the hospital after suffering a

heart attack. On August 31, 2017, nurse notes indicate she and Robert had a fight.

The family discovered that Elizondo was in possession of Bobbie’s purse and house

keys. They believed Elizondo was stealing from Bobbie and unduly influencing her.

–2– On September 1, 2017, Bobbie executed a simple will leaving all her estate to

Elizondo. The will included handwritten statements that “Robert Willingham shall

receive $1.00. Susan Hall is to receive 0 zero % of my properties, bank accounts,

nor any stocks. Susan Hall is to receive nothing of mine.” Susan is Robert’s wife.

Within hours of executing the will, Bobbie had heart surgery.

On September 27, 2017, Robert sued Elizondo for theft, undue influence of

an elderly adult, and fraud.

Bobbie died on November 1, 2017. On November 6, 2017, the trial court

issued a temporary injunction against Elizondo preventing him from attempting to

sell or divert certain assets including, but not limited to, (1) a $29,360 check to Wells

Fargo to “pay off” his mortgage (2) a $10,000 check from Wells Fargo, (3) multiple

gold and silver items, (4) a 38-caliber pistol, and (5) a 2015 Ford Escape automobile.

Elizondo submitted Bobbie’s will for probate on December 6, 2017. Robert

filed his objection to probating the will and requested a jury trial. The jury

determined Bobbie’s will was invalid and found Elizondo committed civil theft with

the value of the stolen property being greater than $20,000.1 The jury also awarded

attorney’s fees for trial and future appellate attorney’s fees. This appeal followed.

1 The jury was also asked to determine whether Bobbie had testamentary capacity to sign her will and whether she signed her will because of undue influence. The jury, however, did not answer these questions because they were conditioned on an affirmative answer to question number 1 regarding the validity of the will. –3– Validity of the Will

In his first two issues, Elizondo argues the evidence is legally and factually

insufficient to support the jury’s finding that Bobbie’s will was invalid. Specifically,

he contends the arguments at trial “contorted the meaning” of a “credible witness”

to a will, which has a specific meaning and is not simply a person who is truthful or

worthy of belief. Robert responds the evidence is both legally and factually

sufficient, as measured by the unobjected-to jury charge, and the jury was free to

determine witness credibility in his favor.

Though not raised by either party, we begin by determining whether Elizondo

preserved his sufficiency challenges to the validity of the will. To preserve a legal

sufficiency complaint, a party must: (1) present a motion for instructed verdict or

judgment notwithstanding the verdict; (2) object to the submission of a jury question;

(3) present a motion to disregard the jury’s answer to a vital fact issue; or (4) file a

motion for new trial. See T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d

218, 220 (Tex. 1992); see also Hollingsworth v. Parklane Corp., No. 05-19-01576-

CV, 2021 WL 1290735, at *3 (Tex. App.—Dallas Apr. 7, 2021, no pet.) (mem. op.).

To preserve a factual sufficiency challenge, the party must present the specific

complaint to the trial court in a motion for new trial. TEX. R. CIV. P. 324(b)(2), (3);

Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991); Hollingsworth, 2021 WL 1290735,

at *3. Elizondo took none of these actions. Although he filed a motion for new trial,

his motion did not include any legal or factual sufficiency challenge to the jury’s

–4– finding regarding the validity of the will. Thus, Elizondo failed to preserve his

arguments for review. We overrule his first and second issues.

Civil Theft

In his third issue, Elizondo argues the evidence is factually insufficient to

support the jury’s finding that he committed civil theft. Specifically, he asserts there

is no evidence he stole a $10,000 check, used a $29,360 Wells Fargo check from

Bobbie to pay off his mortgage, took silver and gold items, stole a gun, or coerced

Bobbie into signing over her car title to him. Robert responds the evidence is

factually sufficient, and we must defer to the jury’s finding.

When a party attacks the factual sufficiency of the evidence pertaining to a

finding on which the party did not have the burden of proof, we may set aside the

finding only if, after considering all the evidence, it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v.

Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Harris Cty. v. Coats, 607

S.W.3d 359, 380–81 (Tex. App.—Houston [14th Dist.] 2020, no pet.). The amount

of evidence necessary to affirm is far less than the amount necessary to reverse a

judgment. Coats, 607 S.W.3d at 381. If we determine that the evidence is factually

insufficient, we must detail the evidence relevant to the issue and state in what regard

the contrary evidence greatly outweighs the evidence in support of the challenged

finding; we need not do so when we affirm. Id.

–5– We apply these standards mindful that this Court is not a factfinder. Maritime

Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The trier of fact is the

sole judge of witness credibility and the weight afforded their testimony. City of

Keller v. Wilson, 168 S.W.3d 802, 819–20 (Tex. 2005). Therefore, we may not pass

upon the witnesses’ credibility or substitute our judgment for that of the jury, even

if the evidence would also support a different result. Coats, 607 S.W.3d at 381.

The Texas Theft Liability Act permits a civil cause of action for damages

against a party who commits theft via any of the numerous methods defined under

the Texas Penal Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 134.003 (creating

civil claim for “theft”); TEX. PENAL CODE ANN. §§ 31.03, 31.10 (defining “theft”).

Under the theory applicable to this case, Robert had to prove by a

preponderance of the evidence that Elizondo unlawfully appropriated Bobbie’s

property with intent to deprive her, or another person who had the right of exclusive

possession, of the property without their effective consent. See Brown v.

Kleerekoper, No. 01-11-00972-CV, 2013 WL 816393, at *3 (Tex. App.—Houston

[1st Dist.] Mar. 5, 2013, pet. denied) (mem. op.).

The relevant “intent to deprive” is the person’s intent at the time of the taking

and can be inferred from the words and acts of the person. See McCullough v.

Scarbrough, Medlin & Assoc., Inc., 435 S.W.3d 871, 906 (Tex. App.—Dallas 2014,

pet. denied); see also Arey v. Shipman Agency, Inc., No. 10-18-00100-CV, 2019 WL

1966896, at *4 (Tex. App.—Waco May 1, 2019, pet. denied) (mem. op.). Intent,

–6– absent direct admission, is usually inferred from circumstantial evidence. See Sky

Group, LLC v. Vega St. 1, LLC, No. 05-17-00161-CV, 2018 WL 1149787, at *6

(Tex. App.—Dallas Mar. 5, 2018, no pet.) (mem. op.). Intent is generally an issue

of fact because it depends on the credibility of the witnesses and the weight to be

given their testimony. Id.

The jury was asked, “Did Applicant commit theft, and was the value of the

stolen property $20,000 or greater, against the Estate of Bobbie Willingham?” The

jury answered affirmatively.

Elizondo argues Robert failed to present any evidence that he acted with the

intent to deprive anyone of property. Elizondo relies on the following four pieces of

evidence: (1) the evidence overwhelmingly established that Bobbie left her estate to

Elizondo; (2) Elizondo and his wife testified that Bobbie decided to pay off their

mortgage and that Bobbie gave them $10,000; (3) there was no contrary evidence

that would have allowed a jury to rationally believe he stole property from Bobbie;

and (4) “efforts to characterize Bobbie as ‘crazy’ or ‘out of her mind’ or otherwise

lacking capacity were unsuccessful.”

When reviewing the entire record, as we must, the evidence supporting the

civil theft finding is not so weak as to make the finding clearly wrong and manifestly

unjust. Cain, 709 S.W.2d at 176. First, because Elizondo failed to preserve his issue

regarding the validity of the will, we our bound by the jury’s determination that he

–7– was not the beneficiary under Bobbie’s will. As such, Elizondo’s argument to the

contrary is not evidence against the jury’s civil theft finding.

As for Bobbie paying off Elizondo’s mortgage, Elizondo testified that Bobbie

offered to pay his mortgage a couple times, but he repeatedly said no. However, he

eventually agreed to take her to the bank where Bobbie talked to bank representatives

outside of his presence. The representatives later told him that Bobbie paid off the

mortgage, he was instructed to sign some papers, and they congratulated him. He

denied forcing or coercing Bobbie to do it.

Bobbie transferred her car title to Elizondo about a week after he used the

$29,360 Wells Fargo check to pay off his mortgage. Robert did not know the

circumstances surrounding the title transfer, but he believed Bobbie was not in her

right mind. He explained Bobbie would not give her car to anyone, not even a

relative. She was not the type to give extravagant gifts because “[t]hat was not the

way she was.”

Elizondo denied removing any items from Bobbie’s home, including a gun,

which he later relinquished to the police. Robert explained that Bobbie never gave

the gun away “because she liked guns.” He believed that if she gave the gun to

Elizondo, “she wasn’t in her right mind.”

Elizondo denied taking silver and gold items from Bobbie, but admitted he

took them to the bank for her to put in her safe deposit box. When they would not

fit, she took them back home. Elizondo alleged she later sold some of them, but the

–8– others remained in her home. Robert, however, explained that Bobbie sold the bars

and coins and received about $10,000, which she kept in her purse. Robert

discovered that Elizondo had Bobbie’s house keys and purse during the time Bobbie

was in the hospital. When Robert regained possession of the purse, the money was

gone.

As the judge of witness credibility, the jury did not have to believe Elizondo’s

testimony regarding the property. City of Keller, 168 S.W.3d at 819–20; Coats, 607

S.W.3d at 381. Instead, the jury heard several witnesses testify that Bobbie’s mental

faculties seemed to be failing in the months leading up to her death. Robert testified

that Bobbie was not the type to give extravagant gifts. Susan Hall, Bobbie’s

daughter-in-law, testified Bobbie once agreed that Elizondo drove her crazy coming

in and out of the house all the time. Also telling, is a notation in Bobbie’s medical

records from a few days before she signed her will that indicated family “has

concerns regarding a neighbor that is ‘persuading’ her to keep family away. Stated

the neighbor has pt’s keys to her home, access to her car and purse.” The hospital

instructed the family to contact the police, and the hospital contacted Adult

Protective Services to report “family concern of a neighbor possibly taking financial

advantage of pt.’

The jury heard two versions of what happened to the property: Elizondo

denying taking or influencing Bobbie to give him her property and family members

–9– testifying to the contrary. As the judge of witness credibility, the jury was free to

believe the family. City of Keller, 168 S.W.3d at 819–20.

We conclude the evidence, which in this case is circumstantial and depends

on witness credibility, is not so weak as to make the jury finding clearly wrong and

manifestly unjust. See Cain, 709 S.W.2d at 176; see also Sky Group, LLC, 2018 WL

1149787, at *6 (“Intent, absent direct admission, is usually inferred from

circumstantial evidence” and intent depends on the credibility of the witnesses and

the weight to be given their testimony). Thus, the evidence is factually sufficient to

support the jury’s finding of civil theft. We overrule Elizondo’s third issue.

Appellate Attorney’s Fees

In his fourth and fifth issues, Elizondo argues the evidence is legally and

factually insufficient to support the award of appellate attorney’s fees. Robert does

not direct us to any evidence in support of the award, but instead references the

parties’ “agreement” to submit the issue to the jury.

To preserve a legal sufficiency issue for appellate review, a party must: (1)

present a motion for instructed verdict or judgment notwithstanding the verdict; (2)

object to the submission of a jury question; (3) present a motion to disregard the

jury’s answer to a vital fact issue; or (4) file a motion for new trial. See T.O. Stanley

Boot Co., Inc., 847 S.W.2d at 220; see also Hollingsworth, 2021 WL 1290735, at

*3. To preserve a factual sufficiency challenge, the party must present the specific

–10– complaint to the trial court in a motion for new trial. TEX. R. CIV. P. 324(b)(2), (3);

Cecil, 804 S.W.2d at 510; Hollingsworth, 2021 WL 1290735, at *3.

Elizondo took none of these actions to preserve his legal sufficiency challenge

to the jury’s award of appellate attorney’s fees. Thus, we overrule his fourth issue.

However, Elizondo challenged the factual sufficiency of the evidence in his motion

for new trial; therefore, we address it below.

When a party attacks the factual sufficiency of the evidence pertaining to a

finding on which the party did not have the burden of proof, the party must

“demonstrate there is insufficient evidence to support the adverse finding.” Estate

of Matthews III, 510 S.W.3d 106, 117 (Tex. App.—San Antonio 2016, pet. denied).

We consider all the evidence but will not reverse the judgment unless the evidence

which supports the jury’s finding is so weak as to make the finding clearly wrong

and manifestly unjust. Id.

The following agreement was read to the jury prior to the jury instructions.

There will be a consideration of attorney’s fees. Mr. Perez, the attorney for the Applicant, has already been paid $34,000. Mr. Wilson, the attorney for the Respondent, has already been paid $24,000, so when you are considering their attorney’s fees, you can award any amount between zero and up to whatever amount you want; however, you need to have known that they’ve already been paid a certain amount of money, that being [$]34,000 for Mr. Perez and [$]24,000 for Mr. Wilson, okay? All right.

Generally, the party seeking to recover attorney’s fees carries the burden of

proof. Assoun v. Gustafson, 493 S.W.3d 156, 168 (Tex. App.—Dallas 2016, pet.

denied). An award of attorney’s fees may include appellate attorney’s fees. Id. The –11– jury awarded Robert’s attorney $10,000 for representation in the trial court, $20,000

for representation through appeal to the court of appeals, $5,000 for representation

at the petition for review stage to the Texas Supreme Court, $15,000 for

representation at the merits briefing stage in the Texas Supreme Court, and $15,000

for oral argument and the completion of proceedings at the Texas Supreme Court.

In Yowell v. Granite Operating Co., 620 S.W.3d 335, 355 (Tex. 2020), the

supreme court discussed the nature of contingent appellate attorney’s fees and noted

that at the point any fees are awarded, an appeal is still hypothetical. The court

observed that there is no certainty regarding who will represent the appellee in the

appellate court, what counsel’s hourly rate(s) will be, or what services will be

necessary to ensure appropriate representation in light of the issues the appellant

raises. Id. The court then concluded, “[T]his uncertainty does not excuse a party

seeking to recover contingent appellate fees from the need to provide opinion

testimony about the services it reasonably believes will be necessary to defend the

appeal and a reasonable hourly rate for those services.” Id.; see also Assoun, 493

S.W.3d at 168 (holding insufficient evidence to support award of contingent

appellate fees when there was no testimony that “included an opinion of what a

reasonable attorney’s fees would be for the services that would be necessary in the

event of an appeal”).

Here, although the parties stipulated to the amount of attorney’s fees paid prior

to trial and left open the award of reasonable attorney’s fees through trial, neither

–12– Robert’s attorney, nor anyone else, provided any evidence as to what a reasonable

attorney’s fee would be for the necessary services in the event of an appeal. See

Yowell, 620 S.W.3d at 355); see also Assoun, 493 S.W.3d at 168.

Having independently reviewed the record, we conclude there is no evidence

to support the jury’s award of appellate attorney’s fees. We sustain Elizondo’s fifth

issue.

Conclusion

We modify the trial court’s judgment to delete the portion granting Robert’s

appellate attorney’s fees. As modified, we affirm the trial court’s judgment.

/Craig Smith/ CRAIG SMITH JUSTICE

200235F.P05

–13– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN RE: THE ESTATE OF BOBBIE On Appeal from the Probate Court WILLINGHAM No. 3, Dallas County, Texas Trial Court Cause No. PR 17-04085- No. 05-20-00235-CV 3. Opinion delivered by Justice Smith. Justices Pedersen, III and Goldstein participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

We DELETE the portion of the judgment awarding:

$20,000 for representation through the appeal to the court of appeals;

$5,000 for representation at the petition for review stage to the Texas Supreme Court;

$15,000 for representation at the merits briefing stage in the Texas Supreme Court; and

$15,000 for oral argument and the completion of proceedings at the Texas Supreme Court.

–14– It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.

It is ORDERED that each party bear their own costs of this appeal.

Judgment entered this 20th day of December 2021.

–15–