Affirmed and Memorandum Opinion filed July 15, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00666-CV

             DEANA KAY COLLIER GREENFIELD, Appellant

                                        V.

 ROBERT RAY GREENFIELD, RUSSEL CLARIS GREENFIELD, LEE
ANN HEISTAND, PATRICIA GREENFIELD, AND GILBERT ANTHONY
                  QUINTANILLA, Appellees

                    On Appeal from the 418th District Court
                           Montgomery County, Texas
                     Trial Court Cause No. 12-05-05875 CV

                 MEMORANDUM                      OPINION


      In this declaratory-judgment action, the appellant contends that the trial
court erred in granting judgment notwithstanding the verdict after a jury found that
she and her late husband had an informal marriage for nineteen years before their
ceremonial marriage. Because we conclude there is legally insufficient evidence
that the couple held themselves out as married before they wed in a formal
ceremony, we affirm.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

       Deana Kay Collier Greenfield (“Kay”) and Claris Russell Greenfield Jr.
(“Russ”) were formally married on January 4, 2008, and he died two years later. 1
Kay instituted probate proceedings in a county court at law, but a dispute arose
about whether she and Russ had an informal marriage before their ceremonial
marriage. She filed a petition for declaratory judgment to resolve the question
about the date of her marriage, and the declaratory-judgment action was severed
into a separate proceeding before a district court. That case was tried before a jury,
which found that Kay and Russ were married in 1989. Appellees Robert Ray
Greenfield (“Bob”), Russel Claris Greenfield (“Russel”), Lee Ann Heistand, and
Patricia Greenfield (“Pat”) (collectively, “the Greenfield appellees”) moved for
judgment notwithstanding the verdict (“JNOV”).2                The trial court granted the
motion and rendered judgment that Kay and Russ were not married before January
4, 2008. In the sole issue presented on appeal, Kay contends that the trial court
erred in granting the JNOV.

                                        II. ANALYSIS

       In the absence of some impediment to marriage, an informal marriage exists
if a “man and woman agreed to be married and after the agreement they lived
together in this state as husband and wife and there represented to others that they
were married.” TEX. FAM. CODE ANN. § 2.401(a)(2) (West 2006). An informal
marriage does not begin until all three elements—agreement, cohabitation, and


       1
         When more than one party or witness has the same surname, we refer to each by the
version of that individual’s given name used at trial.
       2
          Gilbert Anthony Quintanilla, the remaining appellee, did not join in the motion and did
not file a brief in this appeal.

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representation—are present.     Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex.
App.—Houston [1st Dist.] 1991, writ denied). The trial court granted the JNOV
on the grounds that “there is insufficient evidence” that before January 4, 2008,
Kay and Russ (a) agreed to be married, and (b) “represented to others as married.”
If evidence of either element is lacking, we must affirm the judgment.

      We review a judgment notwithstanding the verdict for legal sufficiency of
the evidence supporting the jury’s findings. City of Keller v. Wilson, 168 S.W.3d
802, 823 (Tex. 2005). We “‘credit evidence favoring the jury verdict if reasonable
jurors could, and disregard contrary evidence unless reasonable jurors could not.’”
Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009)
(quoting Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.
2007)). If more than a scintilla of competent evidence supports the jury’s finding,
then we will uphold the verdict rather than the JNOV. Id. “The final test for legal
sufficiency must always be whether the evidence at trial would enable reasonable
and fair-minded people to reach the verdict under review.” City of Keller, 168
S.W.3d at 827.

A.    The trial court did not evaluate the evidence by the wrong standard.

      Kay contends that the JNOV must be reversed because the trial court stated
that there was “insufficient evidence” of two of the elements of informal marriage,
not that there was “no evidence.” We understand Kay to argue that the trial court’s
use of the phrase “insufficient evidence” indicates that when determining whether
to grant the JNOV, the trial court failed to use the no-evidence standard that
properly applies. See Tanner, 289 S.W.3d at 830 (“We review a JNOV under a no-
evidence standard . . . .”). We disagree.

      We construe judgments as a whole, and in doing so, we may consider the
record as well as the language of the judgment. Point Lookout W., Inc. v. Whorton,
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742 S.W.2d 277, 278 (Tex. 1987) (per curiam). In their motion for JNOV, the
Greenfield appellees argued that there was “no evidence sufficient” to prove the
elements of an informal marriage. They further clarified that “no evidence” does
not mean “literally no evidence whatsoever; but rather that the evidence [Kay]
offered is legally insufficient to establish” the challenged elements.

      The terms “no evidence” and “legally insufficient evidence” are used
interchangeably. See, e.g., Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 115 (Tex.
2013) (per curiam) (“Because there is no evidence [of proximate cause], the
evidence is legally insufficient to support the finding . . . .”); Sw. Bell Tel. Co. v.
Garza, 164 S.W.3d 607, 620 (Tex. 2004) (“[N]o evidence is sometimes referred to
as being legally insufficient . . . .”).   In stating that there was “insufficient
evidence” of two elements necessary to establish the existence of an informal
marriage, we understand the trial court to mean that the evidence was legally
insufficient, which is the same as no evidence. Cf. Commercial Union Assurance
Co. v. Foster, 379 S.W.2d 320, 323 (Tex. 1964) (explaining that where a plaintiff
used the terms “no evidence” and “insufficient evidence” in briefing the same
point of error, the court construed “insufficient evidence” to mean “legally
insufficient evidence”). We apply the same standard on review.

B.    The trial court’s denial of the Greenfield appellees’ summary-judgment
      motion does not preclude judgment notwithstanding the verdict.
      Kay also points out that before the case was tried before a jury, the trial
court denied the Greenfield appellees’ motion for final summary judgment. She
argues that the trial court erred in granting the JNOV because the denial of the
summary-judgment motion established that there is legally sufficient evidence of
each element of an informal marriage. We disagree.

      Where a case is subsequently tried on the merits, it cannot fairly be said that


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an earlier interlocutory ruling denying the defendants’ summary-judgment motion
“established” the legal sufficiency of the evidence supporting the plaintiff’s claim.
See Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966) (addressing
some of the reasons for the rule that such an interlocutory ruling is unreviewable
after a conventional trial on the merits). We cannot say even that the summary-
judgment ruling was or was not correct, because we do not have jurisdiction to
review it. See Ogletree v. Matthews, 262 S.W.3d 316, 319 n.1 (Tex. 2007) (“Texas
appellate courts have jurisdiction only over final orders or judgments unless a
statute permits an interlocutory appeal.”).

      On the other hand, we can review the trial court’s ruling on the JNOV
motion, and for the reasons set forth below, we find no error in that ruling.

C.    There is legally insufficient evidence that before January 4, 2008, Kay
      and Russ represented to others in Texas that they were married.
      To satisfy the statutory requirement of representing to others that they are
married, the couple must represent in Texas that they are married. Winfield, 821
S.W.2d at 648. This “is synonymous with the judicial requirement of ‘holding out
to the public.’” In re Estate of Giessel, 734 S.W.2d 27, 30 (Tex. App.—Houston
[1st Dist.] 1987, writ ref’d n.r.e.). “Holding out” may be established by the
couple’s conduct and actions. Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App.—
Houston [1st Dist.] 1998, no pet.).

      Viewing the evidence in the light most favorable to the jury’s findings, we
conclude that it is legally insufficient to establish that Russ and Kay represented
themselves in Texas as a married couple. There is no evidence that at any time
during the alleged informal marriage, Russ and Kay ever identified themselves—
orally or in any document—as married, or made such a representation by their
conduct. For example, there is no evidence that they ever used the same last name,


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had a joint account, commingled assets, shared debts, wore wedding rings, or had a
reputation in the community as married.3 The evidence instead shows only that the
couple who lived next door and one of Russ’s employees assumed that they were
married.

       According to the evidence presented at trial, Kay and Russ met around 1983,
and Russ moved into Kay’s house in 1989. Kellie and Chuck Mazzilli bought the
house next door and after remodeling it, began living there in 1989 or the early
1990’s. Kellie testified that the question of whether Russ and Kay were married
never came up. She thought of them as a couple, but she never heard anyone refer
       3
          Cf. Claveria’s Estate v. Claveria, 615 S.W.2d 164, 167 (Tex. 1981) (evidence was
legally sufficient where husband previously testified that he was married; both parties signed
documents in connection with their purchase of a house identifying them as married; and the
documents were notarized and filed in the public records); Bailey v. Thompson, No. 14-11-
00499-CV, 2012 WL 4883219, at *10–12 (Tex. App.—Houston [14th Dist.] Oct. 16, 2012, no
pet.) (mem. op.) (evidence of representation was legally sufficient where the couple introduced
themselves as married; wore wedding rings; identified husband in writing as related to wife’s
children; had a joint account with rights of survivorship; husband transferred personal balances
to wife’s credit card; husband referred to himself as the stepfather of wife’s daughter; husband
did not correct the daughter when she introduced him as her stepfather; husband did not object
when wife’s mother sent him a card referring to him as “son-in-law”; and husband’s son
identified the couple as married); Riley v. Riley, No. 14-11-00346-CV, 2012 WL 2550957, at *3
(Tex. App.—Houston [14th Dist.] July 3, 2012, no pet.) (mem. op.) (evidence was legally
sufficient where husband attested that the parties publicly referred to each other as husband and
wife; she wore her wedding ring for many years; they had a joint checking account; they “bought
houses together as husband and wife”; and they commingled cash and assets); In re Estate of
Collier, No. 09-10-00263-CV, 2011 WL 2420989, at *4 (Tex. App.—Beaumont June 16, 2011,
no pet.) (mem. op.) (evidence of representation was legally sufficient where wife presented
evidence that husband referred to her as his wife, gave her plaques addressed “to my wife,” and
included her as his beneficiary on employee-benefits plans); Barbee v. Barbee, No. 12-09-
00151-CV, 2010 WL 4132766, at *3–4 (Tex. App.—Tyler Oct. 20, 2010, no pet.) (mem. op.)
(evidence of representation was legally sufficient where wife represented to others in husband’s
presence that they were married and he did not deny it; wife signed a notarized statement during
the informal marriage identifying herself as his wife; couple had joint checking account; after
husband was in an accident, wife received settlement of her claims based on her status as his
wife; and husband saw other women only at out-of-town locations); Hart v. Webster, No. 03-05-
00282-CV, 2006 WL 1707975, at *3 (Tex. App.—Austin June 23, 2006, no pet.) (mem. op.)
(evidence of representation was legally sufficient where it was undisputed that the couple
exchanged wedding rings, filed joint tax returns, and consistently referred to each other as
husband and wife).

                                               6
to them as married until after their ceremonial marriage in 2008. Chuck testified
that he assumed Russ and Kay were married, but they never were introduced to
him as a married couple nor did he hear anyone say that they were husband and
wife. Gilbert Anthony Quintanilla, Russ’s employee for about twenty-eight years,
testified that he assumed Russ and Kay were married, although neither of them
said so. To the contrary, Quintanilla testified that Russ introduced Kay as his
girlfriend.

       Kay argues that the evidence in this case closely parallels the evidence found
to be legally sufficient in In re Estate of Giessel. We disagree. In that case the
evidence of “holding out” included evidence that the man referred to the woman as
his wife; both parties referred to each other as married; people referred to the
couple as “Mr. and Mrs. Giessel”; neither party corrected the appellation; and the
wife helped pay the debts of the husband’s parents after their death. Giessel, 734
S.W.2d at 28–30. No such evidence is present here.

       The evidence in this case most closely resembles that of Mills v. Mest, 94
S.W.3d 72 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). In Mills, as here,
the couple began living together many years before they were ceremonially
married. Id. at 73. There was no evidence that the man ever introduced the
woman as his wife, although—unlike here—one witness recalled the woman
introducing the man as her husband. Id. at 74. As in this case, it was argued in
Mills that circumstantial evidence established that the representation requirement
was met because “several friends and neighbors testified they considered the two
to be married because they lived together and held hands, showed
affection, . . . ‘did everything together’ . . . [and] took care of each other during
sicknesses.” Id.. We rejected that argument.

       As we explained in Mills, a couple can represent by their conduct that they

                                          7
are married, but “inherent in the concept [of “holding out”] is behavior intended as
a communication to third parties, not just intimate behavior in general.” Id. at 75.
The expression of affection and companionship is not unique to marriage, but is
equally consistent with courtship or a close non-marriage relationship.          Id.
Because expressing affection, sharing activities, and caring for one another in
illness are not the kinds of conduct that are “intended as a communication to third
parties,” we concluded that the evidence was legally insufficient to support a
finding that the couple represented that they were married. See id. The same is
true here.

      Having concluded that the evidence is legally insufficient to support the
jury’s finding that Russ and Kay were informally married in 1989, it is
unnecessary for us to determine whether the evidence supports the existence of an
agreement to be married.

                             III. CONCLUSION
      Because there is legally insufficient evidence that Kay and Russ represented
that they were married before January 4, 2008, we overrule the sole issue presented
for review and affirm the trial court’s judgment notwithstanding the verdict.




                                       /s/       Tracy Christopher
                                                 Justice



Panel consists of Justices Christopher, Jamison, and McCally.




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