Kenneth W. Flournoy and June Flournoy v. Patricia Wilz, Temporary Guardian and Guardianship of Jon Patrick Flournoy an Incapacitated Person

Court of Appeals of Texas

Kenneth W. Flournoy and June Flournoy v. Patricia Wilz, Temporary Guardian and Guardianship of Jon Patrick Flournoy an Incapacitated Person

DecidedJuly 19, 2006

Docket10-05-00089-CV

StatusPublished

This text of Kenneth W. Flournoy and June Flournoy v. Patricia Wilz, Temporary Guardian and Guardianship of Jon Patrick Flournoy an Incapacitated Person (Kenneth W. Flournoy and June Flournoy v. Patricia Wilz, Temporary Guardian and Guardianship of Jon Patrick Flournoy an Incapacitated Person) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kenneth W. Flournoy and June Flournoy v. Patricia Wilz, Temporary Guardian and Guardianship of Jon Patrick Flournoy an Incapacitated Person, (Tex. Ct. App. 2006).

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Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-05-00089-CV

Kenneth W. Flournoy and June Flournoy,

Appellant

v.

Patricia Wilz, Guardian of Jon Patrick

Flournoy an Incapacitated Person,

Appellee

From the 77th District Court

Limestone County, Texas

Trial Court No. 26,300-A

CONCURRING AND DISSENTING Opinion

I concur in the Court’s conclusion that Patricia Wilz met her burden of proof to establish a constructive trust on behalf of her disabled son against his father and stepmother. I dissent from that portion of the opinion wherein the majority re-determines the extent of the constructive trust imposed upon real property purchased with the proceeds from the ward’s estate.

The problem in this appeal is that the majority is rendering its own judgment rather than reviewing the trial court’s. They have properly determined that Wilz, as successor guardian, proved the facts necessary for the imposition of a constructive trust on real property. In this regard, the jury determined that Wilz had proven the ward’s funds had been used to purchase certain real property. The majority properly notes that, because Wilz met her burden for the imposition of the constructive trust, the burden shifted to Flournoy to show the maximum extent to which the constructive trust could be imposed on the real property. Because Flournoy failed to obtain a jury finding on this issue, to prevail on appeal, he must conclusively establish its limitation.

To calculate the extent of the constructive trust, the majority focuses on the purchase price of the property and the principal balance of the mortgage. Under the facts presented, I believe this is improper. Flournoy had the burden to show what portion of the property should not be burdened with the constructive trust. All the majority is able to do from this record is guesstimate the approximate amount of the reduction in the loan balance over the years after the purchase. This is not adequate to meet Flournoy’s burden of proof.

Wilz proved that the ward’s assets were used to make mortgage payments. The mortgage payments were for more than principal reduction and Flournoy made no effort to apportion the value of the property based upon the source of funds used to purchase the property. Merely looking to the reduction in the loan balance does not take into consideration that the loan payments also involved taking money from the ward’s estate to pay interest and taxes related to the property.

Without some proof to support an apportionment of the benefits created by the payments made by Flournoy versus those made by the ward’s estate, there is no basis upon which we can properly disturb the trial court’s judgment. The ward is being deprived of the protection of a constructive trust on property upon which the ward’s money was used to pay interest and taxes. Under this approach, if Flournoy had used the ward’s money to pay only interest and taxes, the ward’s estate would not be entitled to the equitable remedy of a constructive trust.

Further, I note that the only source of any evidence that any part of the purchase price was paid by Flournoy came from his deposition testimony. On this record, it is not hard to conclude that the jury could have chosen to disbelieve this testimony. Because the jury could have easily disregarded this testimony, there is no basis upon which to limit the extent of the property upon which the constructive trust was imposed. The only jury finding on this claim was that funds belonging to the ward had been used for acquisition of the farm. Flournoy failed to secure a jury finding to establish what part, if any, of his funds could be traced to the purchase of the farm. It is improper for the majority to make that factual determination on appeal based on evidence the jury could have disbelieved. I would hold that the trial court properly imposed a constructive trust on the entire farm.

Thus, I concur in the judgment that a constructive trust is properly imposed on the farm, but dissent to the judgment to the extent it limits that constructive trust to a 35% undivided interest.

TOM GRAY

Chief Justice

Concurring and dissenting opinion delivered and filed on July 19, 2006

An accused has standing, under both the state and federal constitutions, to challenge the admission of evidence obtained by a governmental intrusion only if he had a legitimate expectation of privacy in the place invaded. See Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978); Villarreal, 935 S.W.2d at 138. To establish a legitimate expectation of privacy, the defendant must show that: 1) he exhibited an actual, subjective expectation of privacy; and 2) society is prepared to recognize his subjective expectation of privacy as objectively reasonable. See Villarreal, 935 S.W.2d 134 at 138 (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979)). Furthermore, because the defendant has greater access to the relevant evidence, the Court of Criminal Appeals has consistently held that the defendant bears the burden of proving that he had a legitimate expectation of privacy in the premises searched. Id.; see also Oles v. State, 993 S.W.2d 103, 108 (Tex. Crim. App. 1999); State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998); State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996). In bringing the motion to suppress, Green bore the burden of establishing all of the elements of his Fourth Amendment claim, part of which includes establishing a privacy interest. See Villarreal, 935 S.W.2d at 138; Klima, 934 S.W.2d at 111.

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IN THE

TENTH COURT OF APPEALS

No. 10-05-00089-CV

Kenneth W. Flournoy and June Flournoy,

Appellant

v.

Patricia Wilz, Guardian of Jon Patrick

Flournoy an Incapacitated Person,

Appellee

From the 77th District Court

Limestone County, Texas

Trial Court No. 26,300-A

CONCURRING AND DISSENTING Opinion

I concur in the Court’s conclusion that Patricia Wilz met her burden of proof to establish a constructive trust on behalf of her disabled son against his father and stepmother. I dissent from that portion of the opinion wherein the majority re-determines the extent of the constructive trust imposed upon real property purchased with the proceeds from the ward’s estate.

The problem in this appeal is that the majority is rendering its own judgment rather than reviewing the trial court’s. They have properly determined that Wilz, as successor guardian, proved the facts necessary for the imposition of a constructive trust on real property. In this regard, the jury determined that Wilz had proven the ward’s funds had been used to purchase certain real property. The majority properly notes that, because Wilz met her burden for the imposition of the constructive trust, the burden shifted to Flournoy to show the maximum extent to which the constructive trust could be imposed on the real property. Because Flournoy failed to obtain a jury finding on this issue, to prevail on appeal, he must conclusively establish its limitation.

To calculate the extent of the constructive trust, the majority focuses on the purchase price of the property and the principal balance of the mortgage. Under the facts presented, I believe this is improper. Flournoy had the burden to show what portion of the property should not be burdened with the constructive trust. All the majority is able to do from this record is guesstimate the approximate amount of the reduction in the loan balance over the years after the purchase. This is not adequate to meet Flournoy’s burden of proof.

Wilz proved that the ward’s assets were used to make mortgage payments. The mortgage payments were for more than principal reduction and Flournoy made no effort to apportion the value of the property based upon the source of funds used to purchase the property. Merely looking to the reduction in the loan balance does not take into consideration that the loan payments also involved taking money from the ward’s estate to pay interest and taxes related to the property.

Without some proof to support an apportionment of the benefits created by the payments made by Flournoy versus those made by the ward’s estate, there is no basis upon which we can properly disturb the trial court’s judgment. The ward is being deprived of the protection of a constructive trust on property upon which the ward’s money was used to pay interest and taxes. Under this approach, if Flournoy had used the ward’s money to pay only interest and taxes, the ward’s estate would not be entitled to the equitable remedy of a constructive trust.

Further, I note that the only source of any evidence that any part of the purchase price was paid by Flournoy came from his deposition testimony. On this record, it is not hard to conclude that the jury could have chosen to disbelieve this testimony. Because the jury could have easily disregarded this testimony, there is no basis upon which to limit the extent of the property upon which the constructive trust was imposed. The only jury finding on this claim was that funds belonging to the ward had been used for acquisition of the farm. Flournoy failed to secure a jury finding to establish what part, if any, of his funds could be traced to the purchase of the farm. It is improper for the majority to make that factual determination on appeal based on evidence the jury could have disbelieved. I would hold that the trial court properly imposed a constructive trust on the entire farm.

Thus, I concur in the judgment that a constructive trust is properly imposed on the farm, but dissent to the judgment to the extent it limits that constructive trust to a 35% undivided interest.

TOM GRAY

Chief Justice

Concurring and dissenting opinion delivered and filed on July 19, 2006

An accused has standing, under both the state and federal constitutions, to challenge the admission of evidence obtained by a governmental intrusion only if he had a legitimate expectation of privacy in the place invaded. See Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978); Villarreal, 935 S.W.2d at 138. To establish a legitimate expectation of privacy, the defendant must show that: 1) he exhibited an actual, subjective expectation of privacy; and 2) society is prepared to recognize his subjective expectation of privacy as objectively reasonable. See Villarreal, 935 S.W.2d 134 at 138 (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979)). Furthermore, because the defendant has greater access to the relevant evidence, the Court of Criminal Appeals has consistently held that the defendant bears the burden of proving that he had a legitimate expectation of privacy in the premises searched. Id.; see also Oles v. State, 993 S.W.2d 103, 108 (Tex. Crim. App. 1999); State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998); State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996). In bringing the motion to suppress, Green bore the burden of establishing all of the elements of his Fourth Amendment claim, part of which includes establishing a privacy interest. See Villarreal, 935 S.W.2d at 138; Klima, 934 S.W.2d at 111.

The record shows that when questioned by the officers, Green stated that he lived at the apartment. Officer Jock testified that he found bills in the apartment that were addressed to both Green and his girlfriend Leslie Bender. He also testified that the leasing agent told him that Green lived in the apartment. However, Green stated at the suppression hearing that “my name is not on the lease” and “that wasn’t my residence.” We find that, although the evidence is conflicting, there is sufficient evidence that Green did reside at the apartment. Consequently, he has standing to complain of the allegedly illegal search.

Consent

The officers asked Green if he lived in the apartment, to which Green answered affirmatively. After performing a protective sweep of the apartment, the officers asked Green for permission to search the apartment, to which he answered, “I don’t care.” Acting with consent, the officers’ search of the drawers in a bedside table discovered the cocaine.

Consent to search is a well established exception to the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); White v. State, 21 S.W.3d 642, 645-46 (Tex. App.—Waco 2000, pet. ref’d.). To be effective, the consent must be voluntary and not the product of duress or coercion. Id. Green does not complain that his consent was involuntary. Moreover, the record supports the finding that consent was voluntary, and we are not at liberty to disturb it. See White, 21 S.W.3d at 645-46; Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000).

Because Green consented to the search, we need not address the warrant exception issues of plain view or exigent circumstances. We conclude that the officers lawfully searched the premises and seized the evidence. Accordingly, we overrule point one.

The judgment of the trial court is affirmed.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed October 17, 2001

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Kenneth W. Flournoy and June Flournoy v. Patricia Wilz, Temporary Guardian and Guardianship of Jon Patrick Flournoy an Incapacitated Person, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenneth-w-flournoy-and-june-flournoy-v-patricia-wi-texapp-2006.

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