                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00198-CV


THE ESTATE OF BARBARA A.
SLOAN, DECEASED


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           FROM PROBATE COURT NO. 1 OF TARRANT COUNTY
                  TRIAL COURT NO. 2002-0000372-1-B

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                                  OPINION

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      This appeal raises the question of whether a surviving spouse’s

constitutional homestead right in a decedent spouse’s separate real property,

allowing the surviving spouse to live at the property for the remainder of that

spouse’s life, affects the fair market value of the property.    In two issues,

appellant Shawn Wolfe, as the independent executor of the estate of Hollis Glenn

Sloan (Wolfe), appeals the trial court’s judgment awarding damages to appellee

James D. Sanford, as co-trustee of the Barbara A. Sloan Family Trust, the

Barbara A. Sloan GST Exempt Trust, and the Barbara A. Sloan Non-GST
Exempt Trust—Marital (Sanford).          We hold that the surviving spouse’s

homestead right affected and reduced the property’s fair market value, so we

reverse the judgment of the trial court, which rests on the opposite conclusion.

                                Background Facts

      The material facts in this appeal are undisputed. Hollis and Barbara Sloan

were married from 1972 until 2001, when Barbara died. Before her death, they

lived at a house on Winton Terrace West in Fort Worth (the Winton Terrace

Property). The property was their homestead. Barbara acquired the property

through a warranty deed in 1999. The warranty deed recited that the property

was Barbara’s “sole and separate property.” To help purchase the property,

Barbara took out a $50,000 loan. Hollis signed a deed of trust to help secure the

$50,000 loan, and the loan was repaid with community funds.

      Barbara’s will appointed Hollis, who was sixty-eight years old at the time of

her death, as the independent executor of her estate. It also authorized Hollis to

“purchase any assets from [Barbara’s] estate for their fair market value.” The will

created three trusts, appointed Hollis as the trusts’ initial trustee, and made him a

beneficiary of the trusts. Finally, the will bequeathed all of the real property

Barbara owned, including the Winton Terrace Property, to the trusts that the will

created.

      After Barbara’s death, Hollis continued to live at the Winton Terrace

Property, and he claimed the property as his homestead. In the course of the

administration of Barbara’s estate, Hollis filed an inventory in which he assigned


                                         2
values to property she owned.            On that inventory and on a tax return for

Barbara’s estate, Hollis listed several tracts of real property that Barbara had

owned as rentals and also listed the Winton Terrace Property, for which Hollis

valued the estate’s interest at $222,000. In December 2003, Hollis conveyed his

interest in several rental properties to Barbara’s estate in exchange for the

estate’s interest in the Winton Terrace Property. The total consideration paid by

Hollis for the estate’s interest in the Winton Terrace Property was $222,000 worth

of rental properties.1

      Hollis died in 2007. His will named Wolfe as his estate’s independent

executor.2 Wolfe and Sanford are siblings and co-trustees of the trusts created

by Barbara’s will.       In July 2009, Sanford sued Wolfe individually and in her

capacity as the independent executor of Hollis’s estate. In his original petition,

Sanford alleged that Hollis had violated a fiduciary duty when he had sold the

Winton Terrace Property from himself as the executor of Barbara’s estate to


      1
          In the trial court, Sanford pled,

      Hollis and Barbara Sloan owned numerous rental properties. There
      are currently approximately 180 combined residential rental
      properties owned collectively by the Estate of Hollis Glenn Sloan and
      the Barbara Sloan Trusts. Some of these properties were the
      separate property of Hollis Sloan and are owned by the Estate of
      Hollis Sloan or by Shawn Wolfe as the sole beneficiary and
      distributee of the Estate, some were the separate property of
      Barbara A. Sloan, and some were community property . . . .
      2
        According to Sanford’s pleading, Wolfe, individually, is the sole beneficiary
of Hollis’s will. Hollis’s will is not in the record.


                                              3
himself individually without paying fair market value and without acting in good

faith. Sanford recognized that Barbara’s will gave Hollis authority to buy the

Winton Terrace Property for fair market value, but Sanford contended that when

Hollis had bought the property, he had incorrectly characterized it as community

property and had therefore paid an amount equaling half of the property’s fair

market value. Sanford asserted that because of Hollis’s “improper handling of

the transaction, [Barbara’s] Trusts did not receive adequate value for the sale of

the Property” and lost out on rental income that the property could have

generated. As relief, Sanford asked for damages “sufficient to compensate the

Trusts for the mishandling of the transaction by Hollis.”          He also sought

declarations that the Winton Terrace Property was Barbara’s separate property

and that Hollis’s purchase of it was not conducted in accordance with Barbara’s

will.

        Wolfe filed an answer in which she contended that Hollis had a homestead

interest in the Winton Terrace Property and that the compensation that he paid

for the property was adequate. Wolfe also alleged that to the extent that Hollis’s

and Barbara’s community funds were used to repay Barbara’s $50,000 loan

obligation on the property, Hollis’s estate was entitled to reimbursement, which

could affect whether he paid fair market value for the property.

        Wolfe and Sanford each sought summary judgment. In her motion, Wolfe

contended that the Winton Terrace Property was community property at the time

of Barbara’s death. She also contended that even if the property was Barbara’s


                                         4
separate property, Hollis’s homestead right in the property for the remainder of

his life decreased the value of Barbara’s estate’s interest and made Hollis’s

$222,000 payment for the property adequate.3 Specifically, she argued,

      It cannot be seriously doubted that [Hollis’s] right to live in the house
      for the rest of his life decrease[d] the value anyone would otherwise
      be willing to pay for Barbara Sloan’s Estate’s interest in Winton
      Terrace. The next obvious question is how [to] value the diminution
      . . . of Barbara’s Estate’s interest in Winton Terrace caused by
      [Hollis’s] homestead right. . . . [T]he proper way to value an interest
      in property subject to a homestead is to use the IRS Life Tables.
      Those tables establish the different values for the life tenant and the
      remainderman depending on the age of the life tenant. For a man of
      [Hollis’s] age in 2003, the value of his life estate was 47.346% of the
      total value while the estate’s remainder interest was 52.654% of the
      total.

      In Sanford’s motion, he contended that while Barbara’s will gave Hollis the

right to purchase property from her estate for fair market value, he purchased the

Winton Terrace Property for substantially less than fair market value because he

incorrectly characterized it as community property and therefore incorrectly

lowered the value of Barbara’s interest from $444,000 to $222,000. Sanford



      3
      To her motion for summary judgment, Wolfe attached an affidavit from
Emile Denke, a certified public accountant. Denke opined in part,

      Because the property was [Hollis’s] homestead, he had legal interest
      in the property. As his homestead, [Hollis] had the right to live in
      Winton Terrace the rest of his life, regardless of who was the owner
      of the property.

             . . . In my opinion, there is no doubt that [Hollis’s] homestead
      interest in Winton Terrace diminishe[d] the value of Barbara’s
      interest. Therefore, Barbara’s interest must be valued at something
      less than $444,000.00.


                                         5
argued that Hollis had breached a fiduciary duty in his purchase of the Winton

Terrace Property.

      The trial court initially decided to deny both parties’ motions, stating that

fact disputes precluded summary judgment.           The parties then filed a joint

submittal of facts and legal issues while agreeing that there were “no genuine

issues of material fact and that the [trial court] should resolve the disputes

between the parties purely as a matter of law.” Concerning the legal issues

presented, the parties stated,

            The initial legal issue for the Court to decide is whether the
      Property located at 2324 Winton Terrace West was the separate
      property of Barbara A. Sloan, as argued by Plaintiff, or whether it
      was the community property of Barbara and Hollis Sloan, as argued
      by Defendant. If the Court concludes that the Property was Barbara
      Sloan’s community property, no further finding is necessary. If the
      Court concludes that the Property was Barbara Sloan’s separate
      property, then the Court must determine whether Hollis Sloan’s
      homestead right decreased the value of the Estate’s interest in the
      Winton Terrace property. If it did, then his estate does not owe
      anything to Plaintiff. If it did not, then Defendant owes Plaintiff
      $197,000.00. [Emphasis added.]

In the joint submittal, the parties each summarized their arguments concerning

the characterization of the Winton Terrace Property and the effect, if any, that

Hollis’s homestead interest in the property had on the fair market value that he

was required to pay to the estate to purchase the property.

      After reviewing the parties’ joint submittal, in a letter ruling, the trial court

made the following findings:

           1. The March 26, 1999 Warranty Deed . . . to Barbara . . .
      conveying [the Winton Terrace Property] to her “as her sole and


                                          6
      separate property” created a rebuttable presumption that the
      property was Barbara’s separate property . . . .

             2. The failure of [Wolfe] to come forward with evidence to
      sufficiently rebut this separate property presumption conclusively
      establishes that such property was Barbara’s separate property at
      her death. . . .

              3. When [Hollis] purchased/exchanged the Winton Terrace
      property by Special Warranty Deed dated December 30, 2003 (and
      pursuant to the provision in Barbara’s Will allowing such purchases
      for full market value), he valued such property for consideration in
      the purchase/exchange at $222,000, or exactly one-half of the
      returned valuation of Winton Terrace on the Inventory &
      Appraisement and Estate Tax Return Hollis filed for the Estate
      ($444,000).

            4. The purchase of Winton Terrace for less than full market
      value constituted a violation of the privilege conferred on Hollis
      under Barbara’s Will and, whether it happened intentionally or
      unintentionally, was a breach of the fiduciary duty owed by Hollis as
      Executor of Barbara’s estate.

             5. The homestead right of Hollis in Winton Terrace had no
      effect on the “full market value” which Hollis was bound to ascribe to
      any property in Barbara’s estate which he wished to purchase. To
      give any value to such interest for purposes of determining
      purchase/exchange consideration would amount to sanctioning self-
      dealing by an executor.

            ....

            7. The proper measure of damages to Plaintiff is the amount
      by which the consideration for Winton Terrace was understated
      ($222,000.00) less the community reimbursement claim of $25,000
      representing the interest of Hollis in the community funds used to
      pay the $50,000 loan which formed a part of the original
      consideration for the acquisition of Winton Terrace, or
      $197,000.00.[4] [Emphasis added.]

      4
        Sanford did not appeal from and does not challenge the trial court’s
finding that Hollis’s estate is entitled to $25,000 in reimbursement as half of the
$50,000 in community funds used to repay Barbara’s loan.


                                        7
      In accordance with these findings, the trial court signed a final money

judgment against Wolfe and in Sanford’s favor for $197,000. Wolfe brought this

appeal.

          The Effect of Hollis’s Homestead Right on Fair Market Value

      In two related issues, Wolfe contends that the trial court erred by basing its

final judgment on its ruling that Hollis’s homestead right did not affect the fair

market value of Barbara’s estate’s interest in the Winton Terrace Property.

Sanford contends that the trial court correctly granted his motion for summary

judgment because Hollis’s homestead interest had no effect on the fair market

value that Hollis was bound to ascribe to the property.

      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo.

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). As we stated

above, the parties agree that there are no genuine issues of material fact in this

case; thus, we must determine whether the trial court made the correct legal

ruling based on the undisputed facts. See City of Blue Mound v. Sw. Water Co.,

449 S.W.3d 678, 681 (Tex. App.—Fort Worth 2014, no pet.).

      The question on which this appeal turns is whether Hollis’s constitutional

homestead right to live at the Winton Terrace Property for the rest of his life


                                         8
reduced the property’s fair market value and likewise reduced Hollis’s required

payment to buy the property from Barbara’s estate at fair market value under the

terms of her will.5 A property’s fair market value is what a willing buyer would pay

a willing seller, neither acting under any compulsion.6 Phillips v. Carlton Energy

Grp., LLC, 475 S.W.3d 265, 278 (Tex. 2015).             This standard takes into

consideration all of the uses to which the property “is reasonably adaptable and

for which it either is or in all reasonable probability will become available within

the reasonable future.” EXLP Leasing, LLC v. Ward Cty. Appraisal Dist., 476

S.W.3d 752, 763 (Tex. App.—El Paso 2015, pets. filed) (quoting City of Austin v.

Cannizzo, 153 Tex. 324, 334, 267 S.W.2d 808, 815 (1954)). “In the willing seller-

willing buyer test of market value it is frequently said that all factors should be

considered which would reasonably be given weight in negotiations between a

seller and a buyer.” City of Austin, 153 Tex. at 332–33, 267 S.W.3d at 814

(emphasis added); see also Caffe Ribs, Inc. v. State, No. 14-0193, 2016 WL


      5
       While Hollis bought the Winton Terrace Property with the belief that it was
community property and while Wolfe argued in the trial court that the property
was community property, Wolfe concedes on appeal that it was Barbara’s
separate property and recognizes that Hollis “mistakenly believ[ed]” that the
property was community property. Thus, we will not review the trial court’s ruling
that the property was separate property. Because we hold below that Hollis’s
homestead interest reduced the fair market value of Barbara’s estate’s interest in
the property, we agree with Wolfe that “Hollis was right [about the property’s fair
market value] but for the wrong reason.”
      6
      As Wolfe argues in her brief, there is no suggestion or evidence that
Barbara intended her will to mean anything other than the usual meaning of fair
market value.


                                         9
1267677, at *4–5 (Tex. Apr. 1, 2016) (holding that issues related to the state’s

condemnation of property affected the property’s market value); State v.

Johnson, 444 S.W.3d 62, 69 (Tex. App.—Dallas 2014, pet. denied) (“Lacking fire

code compliance would significantly affect the market value of the Remainder

because a potential buyer who learned that it was not in compliance with the fire

code probably would not consider purchasing the Remainder.”); McDonald v.

Dallas Cty., No. 05-98-01500-CV, 2001 WL 922972, at *2 (Tex. App.—Dallas

Aug. 16, 2001, no pet.) (not designated for publication) (explaining that when the

government condemned part of a landowner’s property, evidence of removal of

trees, erosion of a creek bank, pollution of a creek, alteration of rain water runoff

and resultant flooding, and impairment of access to the remainder of the property

affected market value).

      Our state’s constitution provides,

      On the death of the husband or wife, or both, the homestead shall
      descend and vest in like manner as other real property of the
      deceased, and shall be governed by the same laws of descent and
      distribution, but it shall not be partitioned among the heirs of the
      deceased during the lifetime of the surviving husband or wife, or so
      long as the survivor may elect to use or occupy the same as a
      homestead, or so long as the guardian of the minor children of the
      deceased may be permitted, under the order of the proper court
      having the jurisdiction, to use and occupy the same.




                                           10
Tex. Const. art. XVI, § 52. Under this provision, a surviving spouse “may occupy

the homestead[7] during the spouse’s lifetime without it being partitioned to the

heirs of the deceased spouse until the survivor's death. Because this probate

homestead right belongs to a surviving spouse regardless of its community or

separate property character, its characterization by the decedent is irrelevant.”

Garner v. Long, 49 S.W.3d 920, 922 (Tex. App.—Fort Worth 2001, pet. denied)

(citations omitted); see In re Estate of Sheshtawy, 478 S.W.3d 82, 86 (Tex.

App.—Houston [14th Dist.] 2015, no pet.) (“A surviving spouse retains the right to

use and occupy the homestead so long as he or she elects to do so. This right

continues as long as the surviving spouse uses or occupies the property, or until

he or she abandons that right.” (citations omitted)); Majeski v. Estate of Majeski,

163 S.W.3d 102, 107 (Tex. App.—Austin 2005, no pet.) (“When a spouse dies,

the surviving spouse retains the full homestead rights that the couple enjoyed

before the death of the spouse. Even if the property was the deceased spouse’s

separate property, the surviving spouse may continue to use and occupy the

property as long as he does not abandon the homestead.” (citations omitted)).

      The surviving spouse’s homestead right is an estate in land. Laster v. First

Huntsville Props. Co., 826 S.W.2d 125, 129 (Tex. 1991). Thus, we disagree with

Sanford’s argument that “[a]t the time [Hollis] purchased [the Winton Terrace


      7
        In the trial court, the parties stipulated that from “the time of its purchase
until the time of Barbara Sloan’s death, [the Winton Terrace Property] was the
homestead of Hollis and Barbara Sloan.”


                                         11
Property], [he] did not own any portion of [it].” This estate 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 homestead character.”

Id. The homestead right therefore “reduc[es]” underlying ownership rights “in a

homestead property to something akin to remainder interests and vest[s] in each

spouse an interest akin to an undivided life estate in the property.” Id. (citing

United States v. Rodgers, 461 U.S. 677, 686, 103 S. Ct. 2132, 2138 (1983)); see

also Sargeant v. Sargeant, 118 Tex. 343, 352, 15 S.W.2d 589, 593 (1929) (“[I]t is

clear to us that the homestead right in land contains every element of a life

estate, and is therefore at least in the nature of a legal life estate, or, in other

words, a life estate created by operation of law.”); Geldard v. Watson, 214

S.W.3d 202, 208 (Tex. App.—Texarkana 2007, no pet.) (reiterating that the

“homestead estate has the effect of reducing the underlying ownership rights”);

Morris v. Porter, 393 S.W.2d 385, 388 (Tex. Civ. App.—Houston 1965, writ ref’d

n.r.e.) (“[A surviving spouse’s] homestead right is in the nature of, and equivalent

to, a life estate.”).

       Thus, Barbara’s death “created in [Hollis] rights in the residence analogous

to those of a life tenant, and created in [Barbara’s estate] a future interest in the

residence similar to that held by a vested remainderman.”          See Laster, 826

S.W.2d at 129. The estate’s vested interest could be conveyed or encumbered

subject to Hollis’s right of possession for his life. Id. at 130–32 (holding that a

party holding a future interest subject to a present homestead right could


                                         12
mortgage the interest and explaining that it has “long been the rule that the

holder of a vested future interest in property can mortgage or alienate that

interest”); Johnson v. Prosper State Bank, 125 S.W.2d 707, 710–11 (Tex. Civ.

App.—Dallas 1939), aff’d, 134 Tex. 677, 138 S.W.2d 1117 (1940).

      Wolfe argues on appeal,

      It is clear that no hypothetical buyer would pay $444,000 for
      Barbara’s interest in [the Winton Terrace Property because] it was
      subject to Hollis’s right to live in the property for the rest of his life. It
      is equally clear that Hollis was only required to pay for the interest in
      [the Winton Terrace Property] that he did not already own.

             ....

             The unencumbered value of [the Winton Terrace Property]
      was $444,000. Would a hypothetical buyer pay the same $440,000
      for [the property] if the house came with Hollis living in [it] for the rest
      of his life? The answer is clearly no.

      We agree that as a matter of both logic and law, Hollis’s surviving

homestead right, which entitled him to live in the property for the rest of his life

and made the interest held by Barbara’s estate akin to a vested remainder that

would entitle a buyer to possession only upon Hollis’s death, necessarily affected

what such a buyer would pay a willing seller for the property and therefore

reduced the property’s market value. Over one hundred years ago, one of our

sister courts reached a similar conclusion in Meyers v. Riley, 162 S.W. 955, 957

(Tex. Civ. App.—Austin 1914, no writ) (op. on reh’g).            There, the court was

concerned about how the character of one tract as a surviving spouse’s

homestead could lessen the value of the tract as compared with another tract



                                           13
that was not encumbered by a homestead right.        Id.   The court offered the

following hypothetical to illustrate how a homestead interest that attaches to

property reduces the property’s market value:

      Suppose there is a community estate of 400 acres of land, all of
      equal value, if improvements be not considered. The land without
      improvements is worth $10 per acre, or a total of $4,000; 300 acres
      are improved, and the improvements are of the value of $4,000,
      making the total value of the entire tract $8,000. As the survivor of
      the community, the wife would be entitled to $4,000 worth of the
      land. There is set aside to her in fee 150 acres, on which the
      improvements are worth $2,500, making the value of the 150 acres
      awarded to her $4,000. But there is also set aside to her use as a
      homestead 200 acres, including the 150 acres set aside to her in
      fee. Thus she would receive what she is entitled to in fee and as a
      homestead. There are two children, who are each entitled to equal
      portions of the remainder of the estate. The 50 acres included in the
      homestead, but not included in that portion of the land set aside to
      the wife in fee, has improvements upon it of the value of $1,500,
      making its value $2,000. The other 200-acre tract is unimproved,
      and is of the value of $2,000. It would be inequitable to award one
      of the children the 50 acres and the other the 200 acres, for the
      reason that the homestead right of the wife would lessen the market
      value of the 50 acres in proportion to her age. If she was young, the
      child to whom this 50 acres was awarded, or its assigns, might have
      to wait 50 years before coming into possession. In such case, the
      fact that the 50 acres was burdened with the homestead rights of the
      wife should be taken into consideration in apportioning the 250 acres
      between the children.

Id. (emphasis added).

      Similarly, in Rodgers, the Supreme Court, applying Texas law, ascribed

monetary value to a homestead right and explained how the homestead right

lessened other parties’ interests in the property. 461 U.S. at 698–99, 103 S. Ct.

at 2145. In that case, the Court considered whether a property subject to a

spouse’s homestead interest could be sold to satisfy the other spouse’s tax debt.


                                       14
Id. at 680, 103 S. Ct. at 2136. The Court held that the property could be sold but

that the non-delinquent spouse was entitled to some proceeds from the sale as

compensation for the loss of the homestead estate.         Id.   Likening the non-

delinquent spouse’s interest to a life estate, the Court explained that the amount

of proceeds that the non-delinquent spouse would be entitled to (and that the

government would therefore not be entitled to as satisfaction of the tax debt)

would be affected by that spouse’s age. Id. at 698–99, 103 S. Ct. at 2145.

      Finally, in Estate of Johnson v. Commissioner of Internal Revenue, the

federal tax court explained how homestead rights reduce a property’s fair market

value. 77 T.C. 120, 123 (1981), rev’d sub nom. Estate of Johnson v. C.I.R., 718

F.2d 1303 (5th Cir. 1983).8 There, the issue was whether the “date of death

value of homestead property owned by [a] decedent [as her separate property]

should be reduced or discounted on account of the homestead rights of [the]

decedent’s surviving spouse.” Id. at 120. The tax court held, “The value of the

interest decedent possessed at death is less than that of the same property

unencumbered by homestead rights, and we cannot totally disregard those rights

in determining values.” Id. at 123. The court explained that the “fair market

value of property subject to restrictions is generally recognized to be less than

that of the same property unrestricted.” Id. at 127.


      8
       The Fifth Circuit in Johnson reversed the tax court on statutory grounds
but did not differ with the tax court’s conclusion that a homestead right has value
or with the tax court’s statement of the principle that a surviving spouse’s
homestead right affects a property’s market value. See 718 F.2d at 1312–16.


                                        15
      Likewise, we conclude that Hollis’s constitutional surviving homestead right

in the Winton Terrace Property reduced the fair market value of the property; the

homestead interest affected what a willing buyer would pay a willing seller for the

remainder interest held by Barbara’s estate. See Phillips, 475 S.W.3d at 278;

Laster, 826 S.W.2d at 129; City of Austin, 153 Tex. at 332–33, 267 S.W.3d at

814; Meyers, 162 S.W. at 957; see also Dominguez v. Castaneda, 163 S.W.3d

318, 330 (Tex. App.—El Paso 2005, pet. denied) (stating that homestead laws

reduce underlying ownership rights).

      Our conclusion in this regard begs a question: To what extent does a

surviving spouse’s homestead right reduce a property’s fair market value? We

conclude that we do not need to answer this question here.9 In the parties’ joint

submittal of facts and legal issues to the trial court, they stated,


      9
        But Wolfe presented evidence in the trial court in an attempt to answer the
question. The record contains an affidavit from R. Blair Norman, an attorney
whose practice mostly concerns wills and estates. In the affidavit, Norman
stated,

      If Winton Terrace is judicially determined to have been Barbara
      Sloan’s separate property, it is my opinion that an appraiser asked to
      determine the fair market value of Barbara’s interest in Winton
      Terrace would have to reduce the fair market value . . . by
      considering the value of [Hollis’s] statutory homestead right. I don’t
      know any way to value Hollis’s statutory homestead right other than
      using the IRS Life Tables. In my opinion, using those tables would
      be appropriate in determining the value of [Barbara’s estate’s]
      interest in Winton Terrace subject to Hollis’s homestead right. I have
      looked at these IRS Life Tables and the tables indicate that
      Barbara’s interest, subject to [Hollis’s] right to live in the property for
      the rest of his life, was 52.654% of the total value of Winton Terrace.


                                          16
      If the Court concludes that the property was Barbara Sloan’s
      separate property, then the Court must determine whether Hollis
      Sloan’s homestead right decreased the value of the Estate’s interest
      in the . . . property. If it did, then his estate does not owe anything to
      Plaintiff. If it did not, then Defendant owes Plaintiff $197,000.00.
      [Emphasis added.]

We conclude that Hollis’s homestead right decreased the fair market value of

Barbara’s estate’s interest in the property; thus, according to the parties’

stipulation, we conclude that Hollis’s estate does not “owe anything” to Sanford.

      Sanford challenges these conclusions by arguing that Hollis should be

bound to the value that he ascribed to the estate’s interest in the property when

he filed sworn probate and tax forms. In these documents, Hollis classified the

Winton Terrace Property as community property and stated that the estate’s


      Similarly, Emile Denke, a certified public accountant, wrote an affidavit that
Wolfe attached to her summary judgment motion. Denke’s affidavit stated,

      In my opinion, there is no doubt that [Hollis’s] homestead interest in
      Winton Terrace diminishes the value of Barbara’s interest.
      Therefore, Barbara’s interest must be valued at something less than
      $444,000.00.

            . . . In my experience, the case law has made it clear that a
      Texas homestead is to be valued in the same manner as a life
      estate. . . .

            . . . The Internal Revenue Service promulgated life tables to
      determine the relative value of the life estate owner and the
      remainderman depending on the age of the life tenant. . . .

             . . . Relying on the IRS tables, the value of Barbara Sloan’s
      interest in Winton Terrace at the time of her death was 52.654% of
      the total value of the property. The value of Hollis Sloan’s life estate
      in the property was 47.346% of the total value as of the date of
      Barbara Sloan’s death.


                                         17
value in the property was $222,000. He did not explicitly swear, as Sanford

argues on appeal, that the “fair market value of [the Winton Terrace Property] at

the time of Barbara Sloan’s death was $444,000.” Sanford cites no authority for

the proposition that Wolfe may not take a different position concerning the

community/separate character of the property, the value of the property, or the

effect of Hollis’s homestead right on the property than Hollis took when he bought

it.   Thus, we overrule Sanford’s argument in that regard as inadequately

briefed.10   See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and

concise argument for the contentions made, with appropriate citations to

authorities and to the record.”); Fulgham v. Fischer, 349 S.W.3d 153, 158 (Tex.

App.—Dallas 2011, no pet.) (“[F]ailure to cite legal authority or provide

substantive analysis results in waiver of the complaint.”).


       10
         We also note that Sanford did not plead any form of estoppel in the trial
court, that Sanford did not move for summary judgment based on estoppel, and
that the trial court did not base its judgment on a finding that Hollis’s estate was
estopped. See Tex. R. Civ. P. 166a(c) (“The motion for summary judgment shall
state the specific grounds therefor.”); Dyegard Land P’ship v. Hoover, 39 S.W.3d
300, 306 (Tex. App.—Fort Worth 2001, no pet.) (“A motion for summary
judgment must stand or fall on the grounds expressly presented in the motion.
Simply stated, a summary judgment cannot be affirmed on grounds never
presented to the trial court by the motion.” (citations omitted)).

       In contrast, Wolfe pled in her answer, “As an affirmative defense,
Defendant asserts that, even if the Winton Terrace property was Barbara Sloan’s
separate property, Hollis Sloan had a homestead interest in the property. As a
result, the property exchanged by Hollis Sloan for the Winton Terrace property
constituted reasonable, if not full, consideration.” And in Wolfe’s motion for
summary judgment, she expressly argued that Hollis’s homestead right
decreased the value of Barbara’s estate’s interest in the property.


                                         18
      Sanford also argues that Hollis engaged in self-dealing and violated

fiduciary duties when buying the property. He relies, in part, on a recent decision

in which we explained,

             An executor’s fiduciary duty to the estate’s beneficiaries arises
      from the executor’s status as trustee of the property of the estate. A
      trustee owes to his beneficiaries an unwavering duty of good faith,
      fair dealing, loyalty, and fidelity. This duty requires that a trustee
      exercise the judgment and care that persons of ordinary prudence,
      discretion, and intelligence exercise in the management of their own
      affairs. “A trustee commits breach of trust not only where he violates
      a duty in bad faith, or intentionally although in good faith, or
      negligently but also where he violates a duty because of a mistake.”

In re Estate of Boylan, No. 02-14-00170-CV, 2015 WL 598531, at *4 (Tex.

App.—Fort Worth Feb. 12, 2015, no pet.) (mem. op.) (citations omitted). Sanford

contends,

             Hollis, as executor of the Barbara Sloan Estate, and trustee of
      the Trusts created under her will, had a duty of full disclosure, a duty
      of fair dealing, a duty of acting as a prudent man, and a duty of
      loyalty to the beneficiaries of the Barbara Sloan Estate and the
      beneficiaries of the Trusts. Hollis breached those duties when he
      conveyed Winton Terrace to himself for substantially less ($222,000)
      than the fair market value ($444,000) that Hollis and his advisors
      established. In conducting the transaction in this way, Hollis put his
      own personal benefit and interests above those of the beneficiaries,
      and he profited at their expense—directly in violation of his fiduciary
      duties.

In light of our holding above that Hollis’s homestead right decreased the fair

market value of the estate’s interest in the property, of the trial court’s

uncontested finding that Hollis was entitled to $25,000 in community

reimbursement when he bought the property, and of the explicit authorization in

Barbara’s will for Hollis to purchase assets from her estate at fair market value,


                                        19
we cannot conclude that Hollis violated fiduciary duties when buying the Winton

Terrace Property.11

      Finally, Sanford relies on cases that are inapposite to the facts and the

legal issue presented here. For example, Sanford contends that the supreme

court’s decision in Edds v. Mitchell is “markedly similar” to this case, but there,

the life tenant had the authority to sell, rather than buy, the property at issue.

143 Tex. 307, 311, 184 S.W.2d 823, 825 (1945). The supreme court held that

the holders of the remainder interest were entitled to proceeds from the sale of

the property by the holder of the life estate; the court concluded that the holder of

the life estate could not “enlarge his estate into a fee” by selling the property. Id.

at 312, 184 S.W.2d at 826.        Here, however, Barbara’s will gave Hollis the

authority to convert his homestead interest into a fee interest by purchasing the

property at fair market value.

      Next, Sanford cites the federal Fifth Circuit’s decision in In re Odes Ho Kim

to refute the idea that the economic value of a homestead interest is identical to a


      11
        Sanford contends that there is “no support for the proposition that Hollis
gets to credit the value of his homestead right against the purchase of [the
Winton Terrace Property] in fee simple.” While we have not located a case
reaching that particular conclusion, we have also not found another case where,
like here, an executor who held a homestead right in property was authorized to
buy that property from the decedent’s estate at fair market value.

      Although the trial court based its decision in part on a concern that giving
value to Hollis’s interest would sanction “self-dealing by an executor,” we cannot
conclude that such self-dealing occurred when Hollis bought the Winton Terrace
Property at fair market value as expressly authorized by Barbara’s will.


                                         20
life estate. 748 F.3d 647, 661–62 (5th Cir. 2014). But in that case, the court

reaffirmed the concept that a spouse’s homestead right is valuable; the court

primarily held that the loss of a non-debtor spouse’s homestead right in a forced

bankruptcy sale was compensable but that the compensation was limited to a

particular amount by statute. Id. at 650, 659, 661–63.

      Finally, Sanford cites our supreme court’s decision in Lucas v. Lucas to

argue that the surviving spouse’s homestead interest is only a possessory

interest “that must be protected while also protecting the full economic interest

held by the fee owner in the property.” 104 Tex. 636, 641, 143 S.W. 1153, 1156

(1912).    There, the supreme court concluded that a spouse who was

dispossessed of a homestead because of condemnation proceedings was

entitled to have the proceeds from the condemnation reinvested on another

homestead; the court held that the proceeds could not be partitioned and

distributed to other parties. Id. at 639–42, 143 S.W. at 1154–56. We cannot

conclude that Lucas impacts the decisive question in this appeal, which is

whether Hollis’s homestead right impacted the fair market value of the Winton

Terrace Property and therefore affected the price for him to buy the property as

authorized by Barbara’s will.

      For all of these reasons, we conclude that the trial court erred in its

findings that Hollis bought the Winton Terrace Property for less than full market

value, that Hollis breached a fiduciary duty when he bought the property, that

Hollis’s homestead right had no effect on the property’s fair market value, and


                                       21
that Sanford is entitled to $197,000.        We hold that Hollis’s constitutional

homestead right reduced the property’s fair market value, and we therefore

conclude, in accordance with the parties’ joint submittal of facts and legal issues,

that Wolfe does “not owe anything” to Sanford. See Phillips, 475 S.W.3d at 278;

Laster, 826 S.W.2d at 129; City of Austin, 153 Tex. at 332–33, 267 S.W.3d at

814; Meyers, 162 S.W. at 957. We sustain Wolfe’s two related issues.

                                   Conclusion

      Having sustained Wolfe’s issues, we reverse the trial court’s judgment and

render a take-nothing judgment.


                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

DELIVERED: June 16, 2016




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