                                  NO. 07-11-0021-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   MAY 1, 2012
                         ______________________________


                          CYNTHIA BEEVERS, APPELLANT

                                           V.

                            RUTHA LAMPKINS, APPELLEE


                       _________________________________

                FROM THE COUNTY COURT OF POTTER COUNTY;

         NO. 28,850-01-P; HONORABLE W. F. "CORKY" ROBERTS, JUDGE
            SITTING FOR THE HONORABLE ARTHUR WARE, JUDGE

                         _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Cynthia Beevers, appeals from the trial court’s order denying her

application for administration, finding her unsuitable to serve as administratrix of the

estate of Floyd Arthur Parshall, deceased, and granting Appellee's, Rutha Lampkins,

application to serve as administratrix of that estate. In support, Beevers asserts (1) the

trial court lacked jurisdiction to hear either Lampkins’s or Beevers’s Applications for

Administration because neither applicant had served citation on interested parties in
compliance with section 128 of the Texas Probate Code, and (2) the evidence in

support of the trial court’s finding of unsuitability is legally and factually insufficient. We

affirm.


          I. BACKGROUND


          The parties do not dispute the following facts. On October 29, 2004, Parshall

died at the Country Club Nursing and Rehab facility located in Amarillo, Potter County,

Texas, at 86 years of age. Parshall’s death certificate listed his immediate cause of

death as end-stage dementia of Alzheimer’s type and indicated he had suffered from

dementia for years prior to his death. Parshall's only wife had predeceased him and he

never had any children. At the time of his death, Parshall owned oil, gas, and other

minerals leased to Continental Resources.


          Beevers knew Parshall because he was a resident at the nursing facility where

Beevers was employed as an office manager. At trial, she described their relationship

as “very close friends.”      In June 2003, Parshall executed a form Last Will and

Testament naming Beevers as the "personal representative" of his estate. The will

made two specific bequests to Beevers, neither of which involved his mineral interests

and one of which bequeathed to her a residence that he had previously transferred to a

third party more than ten years prior to his execution of that will. The will did not contain

any other specific or general bequests and it did not contain a residuary clause. While

Parshall was at the nursing facility, Beevers was aware that he had living siblings.


          More than five years after his death, on November 13, 2009, Beevers filed a

Proof of Death and Other Facts for Probate of Will as Muniment of Title indicating that

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the State of Texas was holding unclaimed property belonging to Parshall. The same

day, the trial court entered an order admitting the will to probate as a muniment of title.

In that proceeding, Beevers did not notify the court that Parshall had surviving heirs.


       In January 2010, Beevers received a $4,000 royalty check from Continental

Resources that belonged to Parshall’s heirs. On January 26, 2010, she then filed an

Application to Determine Heirship with Administration, listing herself as Parshall’s only

heir and claiming to be “the owner of all of Decedent’s Estate.” On March 1, the court

appointed an attorney ad litem to represent Parshall's unknown heirs. On March 16,

Beevers filed an Application for Probate of Will and Letters of Administration with Will

Annexed and in May of that year, her attorney sent a letter to Parshall's living siblings,

including Lampkins, stating they were the sole surviving heirs of his estate. Lampkins

entered an appearance in that proceeding; however, she subsequently filed her own

Application for Letters of Administration on October 5, 2010, seeking consolidation of

the two probate proceedings and appointment of herself as administratrix of Parshall's

estate.   On October 6, 2010, the clerk of the court issued citation on Lampkins's

application for letters of administration, which citation was posted by the Potter County

Sheriff on October 7, 2010.


       On October 19, 2010, a hearing was held. At that hearing the ad litem filed a

report indicating that Parshall had a total of nine siblings (including Lampkins), five of

whom were still living. Beevers also appeared and testified that she had spent the

$4,000 she received from Continental Resources because she thought it was hers.

When asked whether she agreed that the money did not belong to her, she answered:

“No. I don’t agree with that.” She testified that, although she subsequently came to the

                                             3
realization that she “didn’t have any rights [to the money] because I met with [the trial

court],” she had not returned the money because she had spent it on her “regular bills”

and “because at the time I thought I was okay with it.”


       In its Conclusions of Law, the trial court concluded that the two probate

proceedings should be consolidated, that the mineral interests leased by Continental

Resources became the property of Parshall’s heirs immediately upon his death, and

that Lampkins should be appointed as Dependent Administratrix of his estate. The

court further found that Beevers was unsuitable to serve as the personal representative

of Parshall’s estate “because she has a conflict of interest with the estate, has no

relation to Decedent; and lives in Lubbock, Texas.”            Consequently, the trial court

granted Lampkins’s Application for Letters Of Administration and denied Beevers’s.

This appeal followed.


       II. JURISDICTION


       By her first issue, Beevers asserts the trial court lacked jurisdiction to hear either

Lampkins’s or her applications for administration because neither applicant served

citation on interested parties in compliance with section 128 of the Texas Probate Code.

The Texas Probate Code provides that “[n]o application for the probate of a will or for

the issuance of letters shall be acted upon until service of citation has been made in the

manner provided for herein." Tex. Prob. Code Ann. § 128 (West Supp. 2011). When

an application for letters of administration is filed with the clerk, citation shall issue to all

parties interested in the estate, which citation shall be served by posting. Id. at 128(a).




                                               4
       Not only was citation issued and posted as required by section 128, we also note

that both Beevers and Lampkins voluntarily appeared at the October 19th bench trial,

with full notice of each other’s pleadings, and for the purpose of adjudicating their

competing applications for letters of administration pertaining to Parshall’s estate. The

record also reflects that on January 10, 2010, the Potter County Clerk issued citation by

publication "[t]o all persons interested in the estate of Floyd Arthur Parshall," that

citation was published one time in a newspaper of general circulation in Potter County

on March 5, 2010, that the court appointed an attorney ad litem to represent the interest

of any unknown heirs, and that the ad litem not only filed a report of her findings with the

court, she also personally appeared at the October 19th hearing.


       An appearance in person or by attorney, other than a "special appearance" for

the limited purpose of contesting jurisdiction, is a general appearance and "shall have

the same force and effect as if . . . citation had been duly issued and served as provided

by law." Tex. R. Civ. P. 120.       Therefore, as to Beevers, Lampkins, and Parshall's

unknown heirs, these facts alone sufficiently establish that the trial court had both

subject matter and personal jurisdiction. Tex. Prob. Code Ann. § 33 (West 2003). See

also In re Parker, 275 S.W.3d 623, 628 (Tex.App.—Amarillo 2008, no pet.) (“[A] party

waives the right to contest personal jurisdiction over it when it makes a general

appearance before the court.”)


       Furthermore, in its Conclusions of Law, the trial court stated that “[n]otice and

citation have been given in the manner and for the length of time required by law.” After

the trial court filed its Findings of Fact and Conclusions of Law, either party could file

with the clerk of the court a request for specified additional or amended findings or

                                             5
conclusions. Tex. R. Civ. P. 298. By failing to request amended or additional findings

or conclusions, Beevers waived her right to complain on appeal about any error she

assumes the trial court made in its finding.     Smith v. Smith, 22 S.W.3d 140, 149

(Tex.App.--Houston [14th Dist.] 2000, no pet.) (collected cases cited therein). Beevers’s

first issue is overruled.


       III. ADMINISTRATION OF THE ESTATE


       Beevers next asserts there is no evidence that she had a conflict of interest with

the estate, “improperly” obtained money belonging to the heirs, pursued her self-

interests over the heirs, or did not intend to return a $4,000 royalty payment belonging

to the estate. We disagree.


       A. STANDARD OF REVIEW


       A court’s ruling on a probate application is generally reviewed under an abuse of

discretion standard. In re Estate of Gaines, 262 S.W.3d 50, 55 (Tex.App.—Houston

2008, no pet.) (collected cases cited therein); In re Guardianship of Bayne, 171 S.W.3d

232, 235 (Tex.App.—Dallas 2005, pet. denied). The trial court abuses its discretion if it

acts in an arbitrary or unreasonable manner without reference to any guiding rules or

principles. Id. (citing Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004)).


       Appellant’s second issue on appeal challenges the sufficiency of the evidence.

As such, when we review a trial court’s ruling on the merits under an abuse of discretion

standard, the normal sufficiency of the evidence review is part of the abuse of discretion

review and not an independent ground for reversal. Crawford v. Hope, 898 S.W.2d 937,


                                            6
940-41 (Tex.App.—Amarillo 1995, writ denied). See In re Estate of Robinson, 140

S.W.3d 801, 807 (Tex.App.—Corpus Christi 2004, pet. dism’d) (collected cases cited

therein). Further, in a bench trial as we had here, the trial court’s findings of fact have

the same force and effect as a jury verdict; Chevron Pipeline Co. v. Strayhorn, 212

S.W.3d 779, 783 (Tex.App.—Austin 2006, pet. denied) (citing Catalina v. Blasdel, 881

S.W.2d 295, 297 (Tex. 1994)), and appellate courts review the factual and legal

sufficiency of the trial court’s findings of fact and conclusions of law according to the

same standards as jury findings. Id. (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.

1996)).


         In conducting a legal sufficiency review, we must consider the evidence in the

light most favorable to the challenged finding, indulge every reasonable inference to

support it; City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005), and credit

favorable evidence if reasonable jurors could, while disregarding any contrary evidence

unless reasonable jurors could not. Id. at 827. A challenge to legal sufficiency will be

sustained when, among other things, the evidence offered to establish a vital fact does

not exceed a scintilla.1 Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 793 (Tex.

2006).     Furthermore, so long as the evidence falls within the zone of reasonable

disagreement, we may not invade the factfinder’s role, who alone determines the

credibility of witnesses, the weight to be given their testimony, and whether to accept or

reject all or part of their testimony. Wilson, 168 S.W.3d at 822.




1
 Evidence does not exceed a scintilla if it is "so weak as to do no more than create a mere
surmise or suspicion" that the fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601
(Tex. 2004).

                                             7
       In reviewing a factual sufficiency challenge, we consider all the evidence and set

aside a finding only if it is so against the great weight and preponderance of the

evidence as to be clearly wrong and unjust. Ortiz, 917 S.W.2d at 772. If, as here, the

appellant is challenging the factual sufficiency of the evidence to support a finding on an

issue on which the other party had the burden of proof, we must overrule the complaint

unless, considering all the evidence, the finding is clearly wrong and manifestly unjust.

See Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 637

(Tex.App.--Tyler 2004, no pet.) (citing Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.

1965)). Inferences may support a judgment only if they are reasonable in light of all the

evidence; id., and again, the trier of fact is the sole judge of the credibility of the

witnesses and the weight to be given their testimony. GTE Mobilnet of S. Tex. Ltd.

P'ship v. Pascouet, 61 S.W.3d 599, 615-16 (Tex.App.--Houston [14th Dist.] 2001, pet.

denied).


       B. SUITABILITY


      The Probate Code provides priority in the grant of letters testamentary to an

executor named in a will if that person is qualified to act. See Tex. Prob. Code Ann. §

77(a) (West 2003). However, a person may be disqualified to serve if the court finds the

person “unsuitable.” Id. § 78(e). When an applicant is among those named in the

probate code as a person entitled to priority, as in this instance, the party opposing the

appointment has the burden of establishing the applicant’s disqualification. In re Estate

of Robinson, 140 S.W.3d at 805. Therefore, assuming the validity of Parshall's will,

Lampkins had the burden of establishing that Beevers was unsuitable to be appointed

personal representative of his estate.

                                            8
       Unsuitability is not defined in the probate code, and case law has recognized no

comprehensive, discrete explanation delineating attributes that make someone

unsuitable under the probate code.2 Id. at 806. While there is no “bright line” test to be

applied, generally a person claiming ownership of property, to the exclusion of the

estate, is deemed unsuitable because of a conflict of interest between the person and

the estate, while a person making a claim within the probate process (i.e., claiming

under the will or attempting to collect a debt from the estate) is not deemed unsuitable.

See In the Estate of Foster, 3 S.W.3d 49, 55-56 (Tex. App.—Amarillo 1999, pet.

denied).      As the court stated in Hitt v. Dumitrov, 598 S.W.2d 355 (Tex.Civ.App.—

Houston [14th Dist.] 1980, no writ), “each estate should have a representative that will

assume the role of an advocate to achieve the best possible advantage for the estate."

Id. at 356.


       The trial court’s uncontested Findings of Fact indicate that Beevers was aware of

the content of Parshall's will and that he had living siblings, yet even with the advice of

counsel she listed herself as the sole owner of his estate. Furthermore, Beevers’s

utilization of the $4,000 royalty check for her own personal expenses or “regular bills”

was tantamount to asserting a claim of ownership over the $4,000 royalty check to the

exclusion of the estate.       She used money belonging to the estate without seeking

authorization of the trial court or the agreement of the estate beneficiaries. “In many

instances, a creditor’s claim will be obvious and beyond dispute. However when a

creditor’s claim is more controversial, the trial court is within its discretion to evaluate

2
 “It would appear, therefore, that the legislature intended for the trial court to have wide latitude in
determining who would be appropriate for the purpose of administering estates.” Brittingham-Sada v.
Mackie, 158 S.W.3d 568, 572 (Tex.App.—San Antonio 2005, pet. denied) (quoting Dean v. Getz, 970
S.W.2d 629, 633 (Tex.App.—Tyler 1998, no pet.)).

                                                   9
whether the claim against the estate presents such a conflict of interest that the creditor

is not suitable to act as administrator.” In re Estate of Vigen, 970 S.W.2d 597, 601

(Tex.App.—Corpus Christi 1998, no pet.) (citing Boyles v. Gresham, 158 Tex. 158, 309

S.W.2d 50, 54 (Tex. 1958)).


       Beevers’s claim to the assets of the estate is more than controversial. Despite

her realization that the $4,000 royalty payment belonged to beneficiaries of the estate,

she had not returned the money at the time of the hearing.3


       Furthermore, aside from her unauthorized use of the royalty payment, Beevers

failed to notify the trial court that Parshall had surviving heirs when she filed her Proof of

Death and Other Facts for Probate of Will as Muniment of Title, and indicated in her

Application to Determine Heirship with Administration that she was Parshall’s only heir

and “the owner of all of Decedent’s Estate.”              Because this is some evidence that

Beevers pursued her own self-interests over the interest of Parshall's heirs, the trial

court's determination that Beevers was unfit to serve as administrator was neither

arbitrary, unreasonable, nor made without reference to guiding principles. See In re

Estate of Vigen, 970 S.W.2d at 601. That is, we find there is more than a scintilla of

evidence that Beevers had a substantial conflict of interest with the estate and,

considering all the evidence, the trial court’s finding was not clearly wrong or manifestly

unjust. See Formby v. Bradley, 695 S.W.2d 782, 785 (Tex.App.—Tyler 1985, writ ref’d

n.r.e.). Beevers’s second issue is overruled.
3
 Although Beevers indicates, in her brief, that she has since returned the $4,000 royalty payment to
Continental Resources, “[i]t is elementary that, with limited exceptions not material here, an appellate
court may not consider matters outside the appellate record.” Siefkas v. Siefkas, 902 S.W.2d 72, 74
(Tex.App.—El Paso 1995, no writ) (citing Sabine Offshore Service v. City of Port Arthur, 595 S.W.2d 840
(Tex. 1979)).


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                                 CONCLUSION


The trial court’s order is affirmed.


                                            Patrick A. Pirtle
                                                Justice




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