Ronald X. Gordon v. James Albro, Mildred Jones, Cornell Godsey, Lou Alice Godsey, Emil Woods Jr. , and Myrtle B. Woods

• Court: Court of Appeals of Texas
• Decided: August 25, 2005
• Docket: 14-04-00099-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 25, 2005

Affirmed and Memorandum Opinion filed August 25, 2005.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00099-CV

RONALD X. GORDON, Appellant

V.

JAMES ALBRO, MILDRED JONES, CORNELL GODSEY,

LOU ALICE GODSEY, EMIL WOODS, JR., and MYRTLE B. WOODS,

Appellees

_______________________________________________________________________

On Appeal from the County Court at Law No. 1

Fort Bend County, Texas

Trial Court Cause No. 16705

_______________________________________________________________________

M E M O R A N D U M   O P I N I O N

Ronald X. Gordon appeals an order declaring heirship on various grounds.  We affirm.

Ronald is the only son of Burton Gordon and the great nephew of Quinn E. Gordon, Burton=s uncle, both deceased.  Quinn=s will was probated in Wharton County in 1981.  Burton died intestate in 1988, and no administration was held regarding his estate.  Ronald thereafter filed this proceeding to determine the heirship of Burton, seeking, as relevant to this appeal, to: (1) have the order issued in Quinn=s Wharton County probate proceeding (the Aprobate order@) declared void; and (2) be awarded title to, and possession of, a tract of land (the Atract@) located in Fort Bend County that had been part of Quinn=s estate.  Following a bench trial, the trial court=s order instead recited the respective ownership interests in the tract that were reflected in the probate order and subsequent property records.

The Probate Order

Ronald=s first three and sixth issues contend that the trial court erred in relying on the probate order and ruling in appellees= favor because the probate order is void,^[1] and the appellees wrongfully Asecured execution@ of the fraudulently obtained probate order by filing it in the real property records of Fort Bend County.

The purpose and scope of an heirship proceeding is to determine the heirs of, and respective shares of each in, the estate of a decedent owning property in Texas: (1) who dies intestate; (2) whose will is probated but property has been omitted from the administration; or (3) whose will is not admitted to probate or the probate proceeding is not completed.  See Tex. Prob. Code Ann. ' 48(a) (Vernon 2003); Cogley v. Welch, 34 S.W.2d 849, 852-53 (Tex. Comm=n App. 1931).  Ronald has cited no authority suggesting that a county court is authorized in an heirship proceeding to: (1) declare a final judgment issued in a probate proceeding in another court void or fraudulently obtained; or (2) make an heirship determination that disregards, contradicts, or overturns a final probate judgment of another court.^[2]  Therefore, Ronald=s first three and sixth issues fail to show that the trial court erred by relying on the probate order or otherwise ruling in appellees favor and are overruled.

Ronald=s fourth issue contends that the trial court erred in granting judgment in favor of Cornell and Lou Alice Godsey and Emil and Myrtle B. Woods because they failed to respond to the citation, appear, or submit pleadings to support a judgment in their favor. However, because we can find no portion of the record at which Ronald raised this complaint in the trial court, it presents nothing for our review^[3] and is overruled.

Ronald=s fifth issue asserts that the trial court erroneously denied him an ownership interest in the entire tract because the appellees executed a deed (the Adeed@) conveying a partitioned one acre of the tract to Burton seven months after his death, which the law does not recognize.  However, Ronald cites no authority, other than the ALaw of common sense,@ to support his contention that the law does not recognize such a deed; and he provides no authority or reasoning to explain how he would become entitled to an interest in the entire tract even if the law does not recognize such a deed.^[4]  Because Ronald=s fifth issue thus affords no basis for relief, it is overruled.

Ronald=s seventh issue argues that the trial court erred by denying his motion to disqualify and sanction opposing counsel, Charles Slone, because Slone: (1) participated in giving the deed to Burton after his death; (2) knew he might be a material witness in this case; and (3) participated in the scheme to file the fraudulently obtained probate order in the deed records of Fort Bend County.

The fact that a lawyer serves as both an advocate and a witness in a case does not in itself compel disqualification.  In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004).  Rather, disqualification is only appropriate if the lawyer=s testimony is necessary to establish an essential fact, i.e., a fact that could not be established with other sources.  Id.  Therefore, the party requesting disqualification must demonstrate that the opposing lawyer=s dual roles as attorney and witness will cause the party actual prejudice.  Id.  Such prejudice can occur if a fact finder is confused as to whether a statement by an advocate-witness should be taken as proof or an analysis of the proof and an opposing party is thereby handicapped in challenging the credibility of the testifying attorney.  See Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 422 (Tex. 1996).

In this case, Ronald does not identify any essential fact that Slone=s testimony was even capable of proving, let alone necessary to prove.  Moreover, Ronald does not demonstrate how he was prejudiced by Slone acting as both a witness and advocate, particularly in that the case was tried to the court rather than a jury.  Under these circumstances, Ronald=s seventh issue is without merit.  Accordingly, it is overruled, and the judgment of the trial court is affirmed.^[5]

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed August 25, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

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^[1]           In particular, Ronald asserts that appellees misrepresented to the Wharton County court that: (1) Quinn died in Wharton County when he actually died in Harris County; (2) the tract was located in Wharton County when it was actually located in Fort Bend County; (3) Quinn resided in Wharton County when his residence was actually in Fort Bend County; and (4) the real estate Quinn owned was valued at $5,000 when its actual value was $22,300.  Ronald also claims that, because Quinn=s will was not probated in Fort Bend County within four years of his death, as required by law, Quinn died intestate and Ronald should inherit Quinn=s estate as his sole heir through descent and distribution.

^[2]           See Tex. R. App. P. 38.1(h) (requiring an appellant=s brief to include citations to authority supporting its arguments).

^[3]           See id. 33.1(a).

^[4]           See id. 38.1(h).

^[5]           The parties= various pending motions to take judicial notice of evidence and for sanctions and dismissal are overruled.