                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00030-CV



                LETA YORK, Appellant

                           V.

              TODD BOATMAN, Appellee



         On Appeal from the 62nd District Court
               Hopkins County, Texas
              Trial Court No. CV 41400




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Burgess
                                         OPINION
        Leta York (York) filed suit in Hopkins County, Texas, seeking to have a 1995 deed

conveying real property from her to her daughter, Gwendolyn Boatman (Gwendolyn), declared

void; in the alternative, she sought to impose a constructive trust on the 153.185 acres conveyed

in the deed. The trial court held that the deed was valid and that Todd Boatman (Todd),

Gwendolyn’s son and sole beneficiary, was the fee simple owner of the 153.185 acres, subject to

a four-acre life estate in favor of York. On appeal, York asserts (1) that the 1995 deed is void

and/or invalid as a gift, (2) that the evidence is insufficient to support the trial court’s findings of

fact numbered 3, 4, 5, 6, and 8, and (3) that the evidence is insufficient to prove that Gwendolyn

repudiated the constructive trust created by the 1995 deed.

        We find (1) that the 1995 deed was a valid gift, (2) that there is sufficient evidence to

support the trial court’s findings of fact, and (3) that no constructive trust existed.

        Accordingly, we affirm the trial court’s judgment.

I.      Factual and Procedural Background

        In 1967, W.L. Smith and Donnie Smith conveyed a life estate in four acres to their

daughter, York, and her husband, Henry York (Henry), with the remainder in fee simple to the

Yorks’ only daughter, Gwendolyn. In 1985, after both of the Smiths passed away, York and her

sister, as the Smiths’ sole heirs, partitioned the Smiths’ real property, with York being conveyed a

fee simple interest in 153.185 acres, including the four acres subject to the life estate from the 1967

deed.




                                                   2
       By general warranty deed dated August 10, 1995, York conveyed the 153.185 acres to

Gwendolyn “as her separate property.” The deed stated that it was “[s]ubject to all outstanding

[r]eservations, [r]estrictions[,] and [r]ights of [w]ay of record . . . .” York’s husband, Henry, was

not a party to the 1995 deed and died shortly after the 1995 deed was executed.

       In November 2003, Gwendolyn executed a gift deed conveying the 153.185 acres back to

York, but as per Gwendolyn’s instructions, the gift deed was held by her attorney, Jay Garrett, and

was never delivered or recorded. In a letter dated December 6, 2004, York’s attorney, Lanny

Ramsay, demanded that Garrett release and forward the gift deed to him. After learning of York’s

demand, Gwendolyn requested, by letter, that Garrett return the deed to her, and when he refused

to do so, she filed a rescission of the gift deed in the deed records of Hopkins County. In

January 2005, Garrett submitted the gift deed into the registry of the court and filed an interpleader

action, naming York and Gwendolyn as defendants. Four months later, Gwendolyn filed a pro se

answer, requesting that the gift deed be returned to her. In March 2006, the trial court dismissed

the interpleader for lack of prosecution and about five months later, ordered that the gift deed be

released to Gwendolyn.

       Gwendolyn died on April 22, 2012, leaving a Will naming her son, Todd, as the sole

beneficiary of her estate. The Will was admitted to probate on June 12, 2012. In July 2012, by

special warranty deed, Gwendolyn’s estate conveyed the 153.185 acres to Todd.

       On January 30, 2013, York, claiming to be the rightful owner of the 153.185 acres, filed

suit against Todd to have the 1995 deed declared void, or in the alternative, to impose a



                                                  3
constructive trust on the 153.185 acres conveyed in the deed.1 The trial court held that the 1995

deed was valid and that Todd was the fee simple owner of the 153.185 acres, subject to a four-acre

life estate in favor of York.2

II.      Analysis

         A.       York’s First Point of Error—Whether the 1995 Deed is Invalid

                  1.        York’s First Argument—The 1995 Deed Was Void Because it Was Not
                            a Gift of a Present Interest

         York first argues that the 1995 deed was void and/or invalid because it was not a gift “in

praesenti,” a gift of a present interest, as it failed to exclude or reserve the four-acre life estate from

the 1967 deed or the homestead interest of Henry. 3 Nevertheless, a gift by deed does not require

proof that the gift was in praesenti. When conveyed by deed, an estate in realty may be made to

commence in the future. See Woodworth v. Cortez, 660 S.W.2d 561 (Tex. App.—San Antonio

1983, writ ref’d n.r.e.) (“A gift may generally not be made to take effect in the future since a mere


1
 In her petition, York also sought a permanent injunction as well as damages for slander of title and adverse possession,
but we do not address these claims because they were not raised or implicated on appeal. While there was testimony
indicating that the parties may have intended for York to retain a four-acre life estate, we note that York failed to argue
mistake or mutual mistake.
2
 The trial court held that York was “entitled to equitable relief awarding her a life estate in approximately 4 acres of
land as set forth in the final judgment.” As Todd does not appeal from this award, we offer no opinion regarding its
propriety.
3
 York appears to argue that the deed is void for failure of description, as the deed “does not correctly describe the
interest conveyed.” The adequacy of a property description in any instrument transferring an interest in real property,
is a question of law, and in order to satisfy the Statute of Frauds, a deed “‘must furnish within itself, or by reference
to some other existing writing, the means or data by which the [property] to be conveyed may be identified with
reasonable certainty.’” Long Trusts v. Griffin, 222 S.W.3d 412, 416 (Tex. 2006) (per curiam) (quoting Morrow v.
Showell, 477 S.W.2d 538, 539 (Tex. 1972)); Templeton v. Dreiss, 961 S.W.2d 645, 658 (Tex. App.—San Antonio
1998, pet. denied). Here, the 1995 deed contains a metes and bounds description sufficient to identify the size, shape,
and boundaries of the property purportedly being conveyed. See Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex.
1972). Therefore, the deed satisfies the Statute of Frauds and is not void. See Long Trusts, 222 S.W.3d at 416;
Morrow, 477 S.W.2d at 539.
                                                            4
promise to give is unenforceable without consideration. However, by virtue of statutory authority

an estate in realty may be made to commence in futuro by deed.” (citations omitted)); see also

Davis v. Zeanon, 111 S.W.2d 772, 773 (Tex. Civ. App.—Waco 1937, writ ref’d) (“At common

law, an estate in remainder, expectant on the death of the grantor, could not be created, but in this

state, by virtue of a special statutory provision, an estate in land may be created by deed to

commence in futuro.”).

       Yet, even if transfer of a present interest were required, there is no indication in the 1995

deed that York did not immediately convey all of her present rights and title in the 153.185 acres

or that any part of the conveyance was to take place in the future. The 1995 deed purports to

convey York’s rights and title in the 153.185 acres to Gwendolyn. At the time of the 1995 deed,

York owned the 153.185 acres subject to the four-acre life estate and homestead rights of Henry.

Thus, on its face, the deed purports to grant all of York’s interest in the property to Gwendolyn.

       York argues, however, that that conveyance is invalid because the deed fails to reserve

Henry’s rights in the property. York reasons that, because she had no authority to convey Henry’s

rights, the 1995 deed is invalid. Nevertheless, “[o]ne spouse’s conveyance of her separate property

family homestead, without the joinder of the other spouse, is not void as to the conveying spouse.

It is, however, inoperative against the continuing homestead claim of the nonjoining spouse.”

Geldard v. Watson, 214 S.W.3d 202, 207 (Tex. App.—Texarkana 2007, no pet.) (citation omitted).

Moreover, a homestead right “is analogous to a life tenancy, with the holder of the homestead right

possessing the rights similar to those of a life tenant for so long as the property retains its



                                                 5
homestead character.” Laster v. First Huntsville Props., Co., 826 S.W.2d 125, 129 (Tex. 1991).

And,

         [a]lthough the homestead estate is not identical to a life estate because one’s
         homestead rights can be lost through abandonment, “it may be said that the
         homestead laws have the effect of reducing the underlying ownership rights in a
         homestead property to something akin to remainder interests and vesting in each
         spouse an interest akin to an undivided life estate in the property.”

Id. (quoting United States v. Rodgers, 461 U.S. 677, 686 (1983)). Accordingly, even though the

deed does not specifically reserve Henry’s homestead and life estate rights, the conveyance was

made subject to those rights as a matter of law, and the failure of the deed to specifically reserve

those rights does not render it void as to York.4 See id.; see also Davis, 111 S.W.2d at 772.

                  2.       York’s Second Argument—The 1995 Deed is Invalid Because the
                           Evidence is Insufficient to Establish that the 1995 Deed Was a Gift

         The trial court’s conclusion that Todd Boatman was the fee simple owner of the 153.185

acres was based on an implied finding that the 1995 deed was a gift from York to Gwendolyn.5 In

her second point of error, York argues that the 1995 deed was not a valid gift of the property

because she lacked the requisite donative intent and because no actual delivery and acceptance

occurred. Specifically, she argues that she and Gwendolyn agreed to transfer the property to




4
 Rather, it was merely inoperative as to Henry’s homestead interest and life estate until he passed away shortly after
the deed’s execution. See Laster, 826 S.W.2d at 129. Moreover, Henry’s homestead interest and life estate were
extinguished when he died shortly after the deed was executed, and therefore, they were not issues at the time of trial.
See id.
5
 At the time of the 1995 deed, Gwendolyn was married to Gene Boatman, and she was still married to him at the time
of her death. Therefore, if the 1995 deed was not a gift, the property conveyed by the deed would be community
property, and the trial court’s holding would be in error. See TEX. FAM. CODE ANN. §§ 3.001–.002 (West 2006).
                                                           6
Gwendolyn in order to protect it from seizure by the government to satisfy Henry’s nursing home

costs and then transfer it back to York upon Henry’s death.

       A gift of realty can be made either by deed, as is alleged in this case, or by parol gift. Troxel

v. Bishop, 201 S.W.3d 290, 297 (Tex. App.—Dallas 2006, no pet.). The elements of a valid gift

by deed are: (1) donative intent, (2) delivery of the property, and (3) acceptance of the property.

Id. at 296. The owner must release all dominion and control over the gifted property. Id.

Generally, the party claiming the gift has the burden of establishing the elements of gift, but

because the 1995 deed purports to convey the property at issue from York to Gwendolyn it is

presumed that York intended the conveyance to be a gift. See id.; Richardson v. Laney, 911

S.W.2d 489, 492 (Tex. App.—Texarkana 1995, no writ) (citing Kyles v. Kyles, 832 S.W.2d 194,

197 (Tex. App.—Beaumont 1992, no writ)). To rebut this presumption, York had to “prove a lack

of donative intent by clear and convincing evidence at the trial court level.” Richardson, 911

S.W.2d at 492. Moreover, the requirement of clear and convincing evidence “does not alter the

standard of review to be applied at the appellate court level for sufficiency of the evidence

challenges.” Id. Thus, notwithstanding the clear and convincing evidence standard, the trial

court’s findings must be supported by factually sufficient evidence. Id.

       “When we review a finding for factual sufficiency, we consider all of the evidence and will

set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be

clearly wrong and unjust.” Edwards v. Mid-Cont’l Office Distribs., L.P., 252 S.W.3d 833, 836

(Tex. App.—Dallas 2008, pet. denied) (citing Francis v. Dow Chem. Co., 46 S.W.3d 237, 242

(Tex. 2001) (per curiam); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)). The trial

                                                  7
court, being the sole judge of witness credibility and the weight to be given to the evidence, is free

to believe one witness and disbelieve others while resolving conflicts in the evidence and

inconsistencies in the testimony of witnesses. Gnerer v. Johnson, 227 S.W.3d 385, 390 (Tex.

App.—Texarkana 2007, no pet.); Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.—

Houston [1st Dist.] 1992, writ denied). In our review, we must credit evidence favorable to the

finding if a reasonable fact-finder could do so and disregard contrary evidence unless a reasonable

fact-finder could not do so. Hampden Corp. v. Remark, Inc., No. 05-13-00529-CV, 2014 WL

2921655, at *6 (Tex. App.—Dallas Jun. 25, 2014, pet. denied) (mem. op.) (citing City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).

        York attempted to rebut the presumption that the 1995 deed was a gift. She testified that,

at the time she deeded the property to Gwendolyn, her husband was very ill, she relied on

Gwendolyn a great deal, and she executed the deed, on her daughter’s advice, in order to protect

the property from the government should Henry need to be put in a nursing home. 6 There is an

undated note in Gwendolyn’s handwriting stating, in pertinent part,

        Deed over to Gwen and maintain life estate on house and 1 acre. Leta can live on
        it as long as Leta lives. Can have a tax freeze. Johnny Ramey said not do this
        because nursing home can take an [amount] to maintain living there for their part
        of money.


6
 Specifically, at trial, York testified to an alleged oral agreement between Gwendolyn and her regarding transfer of
the property in question. York stated:

        Well, my husband was in -- he was critically ill. And she said if I had to put him in the nursing
        home, if I didn’t have the money every month to pay the nursing home, the government would take
        my land. And she said the thing to do is get it out of your name and put it in my name and then
        when something happens to Henry, my husband, she said we can put it back in your name.

While Gwendolyn’s husband, Gene, and one of her sons, Toby Boatman, both testified for York and corroborated her
claims regarding the oral agreement, the trial court specifically found that their testimony was “not credible.”
                                                         8
       York claimed that the deed was executed with the mutual agreement that Gwendolyn would

deed the property back to her upon demand. Several other notes, handwritten by Gwendolyn in

October 2003, indicate that she was concerned about transferring the property back to York. York

also pointed out (1) that she continued to live on the property after the 1995 deed through the time

of trial, (2) that the property was listed as her homestead, (3) that she paid the taxes on the property

through 2010, (4) that she collected rent from a rent house on the property, and (5) that she had

cattle on the property until 2007.

       However, factually sufficient evidence supports the trial court’s implied determination that

the 1995 deed was indeed a gift. In her deposition, York testified that, shortly after Henry died in

1995, she demanded the property back, but Gwendolyn refused. At trial, York said Gwendolyn

never flatly refused to return the property, but instead kept putting it off to be done later. Todd

denied that Gwendolyn ever agreed to deed the property back to York, but did testify that his

mother told him that York had a right to live on the four-acre tract for the rest of her life.

Gwendolyn accepted and recorded the 1995 deed in the deed records of Hopkins County, which

establishes a prima facie case of delivery and acceptance. See Jackson v. Hernandez, 285 S.W.2d

184, 190–91 (Tex. 1955); Rothrock v. Rothrock, 104 S.W.3d 135, 138 (Tex. App.—Waco 2003,

pet. denied).

       The handwritten notes were written one month prior to the undelivered and unrecorded

2003 gift deed, which Gwendolyn later rescinded. York failed to prosecute a claim for the 2003

gift deed when it was placed into the registry of the court. Gwendolyn filed for a homestead

exemption on the property in 2004 and lived on the property at various times after 1995, and though

                                                   9
she never demanded that York vacate the property, Gwendolyn’s possession did not have to be

exclusive in order for her possession to ripen into title. See Woodworth v. Cortez, 660 S.W.2d

561, 564 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.) (“While possession of the property is

essential in order for the gift to ripen into title, it need not be exclusive possession. It need only

be such possession as was contemplated by the donor to sufficiently protect the rights of the donee

and such as was intended by both donor and donee evidencing an equal right of present

enjoyment.”). From 2005 until her death, Gwendolyn paid the taxes on the property.

       After examining the evidence in its entirety, the evidence supporting the trial court’s

implied determination that the 1995 deed was a gift is not so weak as to be clearly insufficient, nor

is it so against the great weight and preponderance of the evidence as to be clearly wrong and

unjust. Accordingly, we overrule this point of error.

       B.      York’s Second Point of Error—Whether the Evidence is Insufficient to
               Support the Trial Court’s Findings of Fact

       In her second point of error, York contends that there is no evidence or insufficient

evidence to support the trial court’s findings of fact that (a) Henry died on August 22, 1995; (b) the

date of the 1995 deed is August 8, 1995; and (c) Todd exercised all the rights of title to and

ownership of the 153.185 acres since Gwendolyn’s death through the date of trial.

       Findings of fact entered in a case tried to the court, as here, “‘are of the same force and

dignity as a jury’s answers to jury questions.’” Lambright v. Trahan, 322 S.W.3d 424, 430 (Tex.

App.—Texarkana 2010, pet. denied) (quoting .39 Acres v. State, 247 S.W.3d 384, 387 (Tex.

App.—Texarkana 2008, pet. denied) (citing Anderson v. City of Seven Points, 806 S.W.2d 791,

794 (Tex. 1991) (orig. proceeding)). The trial court’s findings of fact are reviewable for legal and
                                                 10
factual sufficiency by the same standards that are applied in reviewing legal or factual sufficiency

of the evidence supporting a jury’s answer to a jury question. Id. (citing Ortiz v. Jones, 917 S.W.2d

770, 772 (Tex. 1996) (per curiam); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994)).

        The test for legal sufficiency is “whether the evidence at trial would enable reasonable and

fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802,

827 (Tex. 2005); Basley v. Adoni Holdings, LLC, 373 S.W.3d 577, 582 (Tex. App.—Texarkana

2012, no pet.). We will sustain such a challenge only when (1) there is a complete absence of

evidence of a vital fact; (2) the rules of law or of evidence bar the court from giving weight to the

only evidence offered to prove a vital fact; (3) there is no more than a scintilla of evidence offered

to prove a vital fact; or (4) the opposite of the vital fact is conclusively established by the evidence.

Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010). If the evidence furnishes some reasonable

basis for differing conclusions by reasonable minds about a vital fact’s existence, more than a

scintilla of evidence exists. Jelinek, 328 S.W.3d at 532.

        We conduct a de novo review of the trial court’s conclusions of law. BMC Software

Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Although a trial court’s conclusions

of law are not reviewable for factual sufficiency, we may review the trial court’s legal conclusions

drawn from the facts to determine whether the conclusions are correct. Id.

        Here, York contends that there is “no evidence or insufficient evidence” to support the

following findings of fact:




                                                   11
               3.      Henry A. York died on August 22, 1995.

              4.     Shortly after the death of Henry A. York, Gwendolyn Boatman
       informed Plaintiff that she claimed ownership of the 153.185 acres by reason of the
       August 8, 1995[,] deed.

               5.     Gwendolyn Boatman exercised all the rights of title and ownership
       of the 153.185 acres since August 8, 1995[,] up until her death.

              6.      Defendant exercised all the rights of title and ownership of the
       153.185 acres since the death of Gwendolyn Boatman through the date of trial.

       ....

               8.     Again in 2004 and 2005 Gwendolyn Boatman informed the Plaintiff
       that she claimed ownership of the 153.185 acres of land by reason of the August 8,
       1995[,] deed.

       Initially, York argues that there is no evidence supporting finding of fact number three, that

Henry York died on August 22, 1995, because York testified that Henry died on either August 20,

1995, or August 26, 1995, and hers is the only testimony in the record concerning the date of his

death. However, in York’s sworn “Assertion of Homestead Rights, Declaration Voiding Prior

Conveyance, and Notice of Intention to Litigate Title,” she stated that Henry died on August 22,

1995, and the assertion was admitted into the trial record as Boatman’s exhibit five. Accordingly,

the evidence is legally sufficient to support the trial court’s finding of fact number three.

       Findings of fact numbers four, five, and eight stated that the date of the 1995 deed is

August 8, 1995, and York argues that there is no evidence to support that finding because the deed

itself is clearly dated August 10, 1995. While we note that the deed is dated August 10, 1995,

whether the deed was executed on August 8 or August 10 is an immaterial evidentiary fact in this



                                                  12
case and is not grounds for reversal or alteration of the judgment.7 We overrule this point of error.8

See Andrews v. Key, 13 S.W. 640, 641 (Tex. 1890); Able v. Able, 725 S.W.2d 778, 780 (Tex.

App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.); Vandever v. Goettee, 678 S.W.2d 630, 635

(Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.).

         York also contends that no evidence or insufficient evidence supports the trial court’s

finding of fact that Todd “exercised all the rights of title and ownership of the 153.185 acres since

the death of Gwendolyn through the date of trial.” York argues that the finding of fact is in error

because the following actions “were not consistent” with the findings (a) that she lived on the

property through the time of trial; (b) that Gwendolyn told Todd that York had the right to live on

the four acres for the rest of her life; (c) that Todd admitted he had never asked York to vacate the

property; and (d) that for three months after Gwendolyn’s death, Todd collected rent from a rent

house on the four-acre tract, but he stopped collecting the rent thereafter.

         However, there is evidence that supports the trial court’s finding. Todd testified, and the

tax statements admitted at trial show, that he paid the taxes on the 153.185 acres from 2012, the

year Gwendolyn died, through the time of trial. Just a few months after his mother’s death, he

built a barn on the property, made other improvements, and used the land for his cattle. From this


7
 An ultimate fact issue, which a trial court is required to enter in its requested written findings of fact following a
bench trial, is one that is essential to the cause of action and has a direct effect on the judgment. In re Marriage of
Edwards, 79 S.W.3d 88, 94 (Tex. App.—Texarkana 2002, no pet.). An evidentiary issue, which a trial court is not
required to enter in its requested written findings of fact following a bench trial, is one the court may consider in
deciding the controlling issue, but is not controlling in itself. Id.
8
 We note that, even if the specific date of the deed were a material issue, any error regarding the findings was invited
error because in York’s request for additional and amended findings of fact and conclusions of law, she, herself,
requested more than a dozen findings of fact that listed August 8, 1995, as the date of the 1995 deed, and, therefore,
she would be estopped from raising the issue on appeal. See In re Dep’t of Family & Protective Servs., 273 S.W.3d
637, 646 (Tex. 2009) (party may not complain on appeal of trial court’s action when the party requested said action).
                                                          13
evidence, reasonable minds could differ about whether Todd exercised his rights of ownership

from the date of Gwendolyn’s death through the date of trial. See Jelinek, 328 S.W.3d at 532.

Therefore, there is more than a scintilla of evidence to support the trial court’s finding, and we

overrule this point of error. See id.

         C.       York’s Third Point of Error—Whether the Trial Court Erred in Holding that
                  York’s Constructive Trust Cause of Action Was Barred by the Statute of
                  Limitations

         In her third point of error, York asserts that she is entitled to the return of the property

under her constructive trust cause of action and that the trial court erred in finding it barred by the

statute of limitations. First, York argues that, if the 1995 deed was valid and there was an

agreement to deed the property back to York, then the deed created a constructive trust. 9 York

then argues that, because a constructive trust existed, the statute of limitations could not begin to

run until Gwendolyn repudiated the constructive trust and that, as there was insufficient evidence

to prove said repudiation, the statute of limitations on her cause of action did not expire. Based

on those assumptions, York concludes that she is entitled to the return of the property because


9
 York argues that a constructive trust was created in her point of error, but in the body of her brief, she cites cases
involving resulting trusts. “Although they are often confused, resulting trusts and constructive trusts rely on two
different theoretical bases.” Troxel, 201 S.W.3d at 298. As explained by the Troxel court:

         Both are implied by operation of law to prevent unjust enrichment. However, a resulting trust—
         more accurately denominated a purchase money resulting trust—is an equitable remedy primarily
         involving consideration. A resulting trust arises by operation of law when title is conveyed to one
         person but the purchase price or a portion thereof is paid by another. The parties are presumed to
         have intended that the grantee hold title to the use of him who paid the purchase price and whom
         equity deems to be the true owner. The trustee of a resulting trust is generally responsible only for
         conveying the property to the beneficiary or in accordance with his directions.

Id. (citations omitted). Because it is undisputed that no consideration was paid for the real property transfer
memorialized by the 1995 deed in this case, the facts herein do not involve the law concerning resulting trusts.
Therefore, we interpret York’s arguments as alleging the existence of a constructive trust rather than a resulting trust.
                                                          14
Gwendolyn died and the constructive trust ceased to exist upon her death. York misconstrues trust

law and makes unsupported assumptions in crafting her argument. We find that York’s claim for

constructive trust relief never accrued and that the caselaw she relies on is inapplicable.

        The primary weakness of York’s argument is that a constructive trust is not an arrangement

created by parties to a transaction to establish the rights and duties between them and which can

be enforced by a trial court; rather, a constructive trust is an equitable remedy imposed by a court

to prevent unjust enrichment arising from the parties’ transaction. Troxel, 201 S.W.3d at 298.

Thus, when a party asserts a constructive trust cause of action, she does not ask the court to enforce

a constructive trust that the parties created between themselves, but instead asks the court to impose

a constructive trust on their relationship to prevent the other party from being unjustly enriched.

The constructive trust is the remedy sought, not the underlying relationship itself. See id. No

constructive trust exists unless and until a court imposes it as a remedy. See id.

        The trial court made no findings of fact or conclusions of law that specifically addressed

York’s claim for constructive trust or that found there was an agreement between York and

Gwendolyn to deed the property back to York. Nor could it have because it never reached the

merits of that cause of action. Instead, the court concluded that York’s “claims as set forth in her

pleadings [were] barred by the applicable statute of limitations.” Therefore, contrary to York’s

assertion, the trial court did not impliedly find the existence of a constructive trust, but rather found

that York waited too long to request that relief. Because no constructive trust was ever imposed,

the running of the statute of limitations was not contingent upon repudiation of the non-existent

constructive trust.

                                                   15
         Secondly, York’s claim for constructive trust relief never accrued. The law is suspicious

of resulting or constructive trusts, and consequently, a heavy burden of proof is placed on the party

attempting to establish the existence of one. See Equitable Trust Co. v. Roland, 721 S.W.2d 530,

533 (Tex. App.—Corpus Christi 1986, writ ref’d n.r.e). Additionally, as previously stated, where

property is deeded from a parent to a child, it is presumed that a gift was intended. Richardson,

911 S.W.2d at 492. In our analysis of York’s first point of error, we held that there was sufficient

evidence to support the trial court’s determination that the 1995 conveyance was a gift, and that

holding is consistent with the trial court’s conclusion of law that “Todd Boatman is the fee simple

owner of the 153.185 acres of land.” Based on that holding, the 1995 conveyance was a valid gift,

and therefore, York’s constructive trust cause of action never accrued.10 See Somer v. Bogart, 749

S.W.2d 202, 204 (Tex. App.—Dallas 1988, writ denied) (no resulting trust exists until presumption

of gift conveyance is rebutted); Roland, 721 S.W.2d at 533.

         Finally, York’s argument principally relies on the case of Kostelnik v. Roberts, 680 S.W.2d

532, 535–36 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.), for the proposition that a party in

Gwendolyn’s (and, by extension, Todd’s) position cannot assert the doctrine of unclean hands to

prevent the imposition of a constructive trust requiring the grantee to convey the property back to

the grantor pursuant to their oral agreement to circumvent the Medicaid eligibility requirements.

In Kostelnik, the grantor conveyed her property to grantee when she and her husband were required

to move into a convalescent home, and then, after her husband died, she sought return of the




 York admits that, if the 1995 conveyance was a gift, “no cause[] of action could accrue” because “[t]here is no cause
10

of action for failing to return a valid gift.”
                                                         16
property pursuant to their oral agreement. Id. at 534–35. The trial court granted that relief and

imposed a constructive trust on the property in the grantor’s favor. Id. at 535. On appeal,

         [grantees] allege[d] that . . . [grantor] benefited from her gifts to appellants by
         having “defrauded the State of Texas by accepting Medicaid benefits” because she
         was allowed, due to her new financial status following the transfers of property, to
         receive Medicaid benefits from the State of Texas while residing in the
         convalescent home.

Id. The trial court refused to apply the unclean hands doctrine to that case, and the Corpus Christi

Court of Appeals affirmed, holding that the State of Texas, rather than the grantee, was the one

harmed by the agreement and that “[t]he party to a suit, complaining that his opponent is in court

with ‘unclean hands’ . . . must show that he himself has been injured by such conduct, to justify

the application of the principle to the case.” Id. at 535–36. The court of appeals also noted that

application of the unclean hands doctrine was “within the sound discretion of the trial court” and

found no abuse of discretion in the trial court’s failure to apply that equitable doctrine. Id. at 536.

         Although the facts in Kostelnik are remarkably similar to the present case, York’s reliance

on Kostelnik is misplaced. In Kostelnik, a constructive trust existed because the trial court imposed

one on the parties’ agreement. The grantee sought to reverse that ruling on the basis of the unclean

hands doctrine, and the court of appeals denied that relief. Here, as noted above, no constructive

trust ever existed, and the trial court made no finding of an agreement to convey the property back

to York. Therefore, notwithstanding the factual similarities, the holding in Kostelnik is simply not

applicable to this case.11


11
  The facts in this case are also similar to In re Marriage of Parker, 997 S.W.2d 833, 837–38 (Tex. App.—Texarkana
1999, writ denied), where we refused on public policy grounds to impose a constructive trust to enforce a grantee’s
oral agreement to re-convey property to the grantor once the grantor’s income tax problems were resolved, because
“[a] grantor who conveys his property for the purpose of shielding the property from liability of future creditors, when
                                                          17
         Accordingly, we overrule this point of error.

III.     Conclusion

         For all of the foregoing reasons, we affirm the trial court’s judgment.




                                                      Ralph K. Burgess
                                                      Justice

Date Submitted:            December 23, 2015
Date Decided:              April 8, 2016




the purpose of such a conveyance is not to divest the grantor of beneficial interest, should not receive the aid of the
courts against his grantee.” Id.
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