                                                                                 ACCEPTED
                                                                             12-15-00033-CV
                                                                TWELFTH COURT OF APPEALS
                                                                              TYLER, TEXAS
                                                                        7/30/2015 3:34:50 PM
                                                                               CATHY LUSK
                                                                                      CLERK

                     IN THE COURT OF APPEALS

                                               FILED IN
       FOR THE TWELFTH APPELLATE DISTRICT OF TEXAS
                                                      12th COURT OF APPEALS
                                                           TYLER, TEXAS
                             TYLER, TEXAS             7/30/2015 3:34:50 PM
                                                           CATHY S. LUSK
                                                               Clerk
IN THE MATTER OF                  §
                                  §
THE ESTATE OF                     §   CAUSE NUMBER 12-15-00033-CV
                                  §
RUBY RENEE BYROM                  §

  FROM CAUSE NUMBER 2013-18 IN THE 4TH DISTRICT COURT OF

CHEROKEE COUNTY, TEXAS; THE HON. J. CLAY GOSSETT, JUDGE.

                                  § § §

                          APPELLEE’S BRIEF

                                  § § §

Oral Argument is not requested.

                                      Joseph F. Zellmer
                                      State Bar Number 22258515
                                      620 West Hickory Street
                                      Denton, Texas 76201
                                      Telephone: 940/383-2674
                                      Email: jfz@zellmerlaw.com

                                      Jill Campbell Penn
                                      State Bar Number 24051181
                                      516 East Commerce Street
                                      Jacksonville, Texas 75766
                                      Telephone: (903) 586-2544
                                      Email: jill@therichardslawfirm.com
                        LIST OF INTERESTED PARTIES

      Pursuant to Rule 38.1(a), Tex.R.App.P., the following is a complete listing of

all parties to the trial court's final judgment and their counsel in the trial court:

      1. Appellants Jerry Byrom; Dimple Byrom; and Dorothy Berry;

      2. Joe Shumate and James J. Rosenthal, appellate and trial counsel for Jerry

Byrom, Dimple Byrom, and Dorothy Berry, P.O. Box 1915, Henderson, Texas 75653;

      3. Appellee Jill Campbell Penn, court-appointed receiver, 516 East Commerce

Street, Post Office Box 1309, Jacksonville, Texas 75766; and

      4. Joseph F. Zellmer, lead appellate counsel for Jill Campbell Penn, 620 W.

Hickory, Denton, Texas 76201.




                                            i
                                      TABLE OF CONTENTS

LIST OF INTERESTED PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

THE CASE IN BRIEF.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OUTLINE OF APPELLEE’S RESPONSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

APPELLEE’S RESPONSE 1 -APPELLANT’S ISSUE 1 IS MULTIFARIOUS
AND SHOULD NOT BE CONSIDERED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

APPELLEE’S RESPONSE 2. - APPELLANT’S ISSUE 1 IS NOT A PROPER
ISSUE FOR APPEAL AS THE IMPOSITION OF A CONSTRUCTIVE TRUST
AND ORDER FOR SALE AND APPOINTMENT OF A RECEIVER IS RES
JUDICATA AS HIS COMPLAINTS WERE OVERRULED IN CAUSE
NUMBERS 12-09-00279-CV AND 12-12-00374-CV.. . . . . . . . . . . . . . . . . . . . . 6

APPELLEE’S RESPONSE 3. - APPELLANT’S UNSTATED ISSUE THAT
THE ORDER OF THE DISTRICT COURT IS VOID BECAUSE THE
RECORD FAILS TO SHOW THE HOMESTEAD STATUS OF REAL
PROPERTY AND THE APPLICABLE CONSTITUTIONAL EXCEPTION
PERMITTING FORCED SALE OF HOMESTEAD PROPERTY IS BARRED
BY RES JUDICATA. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

APPELLEE’S RESPONSE 4. - APPELLANT’S UNSTATED ISSUE THAT
THE ORDER OF THE DISTRICT COURT IS VOID BECAUSE THE
RECORD FAILS TO SHOW THE HOMESTEAD STATUS OF REAL
PROPERTY AND THE APPLICABLE CONSTITUTIONAL EXCEPTION
PERMITTING FORCED SALE OF HOMESTEAD PROPERTY IS
INAPPLICABLE TO THE CURRENT CASE AS NONE OF THE CASES
CITED BY APPELLANT DEAL WITH A CONSTRUCTIVE TRUST. .. . . . 6

                                                       ii
APPELLEE’S RESPONSE 5. - APPELLANT’S ISSUE 2 IS MULTIFARIOUS
AND SHOULD NOT BE CONSIDERED. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

APPELLEE’S RESPONSE 6. - APPELLANT’S ISSUE 2 IS NOT A PROPER
ISSUE FOR APPEAL AS THE PREVIOUS ORDERS FOR THE IMPOSITION
OF A CONSTRUCTIVE TRUST AND THE ORDER FOR SALE AND
APPOINTMENT OF A RECEIVER IS RES JUDICATA AND WAS
OVERRULED IN CAUSE NUMBERS 12-09-00279-CV AND 12-12-00374-CV
AND THEREFORE CANNOT BE A BASIS FOR OVERTURNING THE
ATTORNEY’S FEES ORDERED IN THE DECREE ORDERING SALE OF
REAL PROPERTY. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

APPELLEE’S RESPONSE 7. - APPELLANT’S UNSTATED ISSUE THAT
THE ORDER OF THE DISTRICT COURT IS VOID BECAUSE THE
RECORD FAILS TO SHOW THE HOMESTEAD STATUS OF REAL
PROPERTY AND THE APPLICABLE CONSTITUTIONAL EXCEPTION
PERMITTING FORCED SALE OF HOMESTEAD PROPERTY IS BARRED
BY RES JUDICATA. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

APPELLEE’S RESPONSE 8. -APPELLANT’S UNSTATED ISSUE THAT THE
ORDER OF THE DISTRICT COURT IS VOID BECAUSE THE RECORD
FAILS TO SHOW THE HOMESTEAD STATUS OF REAL PROPERTY AND
THE APPLICABLE CONSTITUTIONAL EXCEPTION PERMITTING
FORCED SALE OF HOMESTEAD PROPERTY IS INAPPLICABLE TO THE
CURRENT CASE AS NONE OF THE CASES CITED BY THE APPELLANT
DEAL WITH A CONSTRUCTIVE TRUST . .. . . . . . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

APPENDICES 1-10 (INDEX TO FOLLOW)



                                                     iii
                                      INDEX OF AUTHORITIES
CASES
                                                                                                     PAGES
Alanis v. Valdespino, 2012 Tex. App. LEXIS 4065, 17
       (Tex. App.– San Antonio May 23, 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Barr v. Resolution Trust Corp., 837 S.W.2d 627
      (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Baucom v. Texam Oil Corp., 423 S.W.2d 434
     (Tex. App.–El Paso 1967, writ ref’d n.r.e. . . . . . . . . . . . . . . . . . . . . . . . . . 18
Bransom v. Standard Hardware, 874 S.W.2d 919
     (Tex. App-Fort Worth 1994, writ denied). . . . . . . . . . . . . . . . . . . . . . . .18, 20
Clancy, 705 S.W.2d at 823. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
Green v. Kaposta, 152 S.W. 3d 839
      (Tex. App.–Dallas 2005, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Hollifield v. Hollifield, 925 S.W2d 153
       (Tex. App.–Austin 1996, no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Rich v. Olah, 274 S.W.3d 878
      (Tex. App.–Dallas 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State & Cnty. Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693
      (Tex. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860
      (Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


ARTICLES, CODES, AND CONSTITUTIONS




                                                          iv
                                  IN THE COURT OF APPEALS
            FOR THE TWELFTH APPELLATE DISTRICT OF TEXAS
                                             TYLER, TEXAS


IN THE MATTER OF                                     §
                                                     §
THE ESTATE OF                                        §         CAUSE NUMBER 12-15-00033-CV
                                                     §
RUBY RENEE BYROM                                     §


 APPEALED FROM CAUSE NUMBER 2013-18 IN THE COUNTY COURT

      OF CHEROKEE COUNTY, TEXAS; THE HONORABLE J. CLAY

                                GOSSETT, JUDGE PRESIDING.



                                         THE CASE IN BRIEF

THE CAUSE OF ACTION........................................... Petition for Partition

VERDICT.....................................................................   Property not subject to
                                                                               partition. Real
                                                                               property ordered sold.




                                                      Page 1
             OUTLINE OF APPELLEE’S RESPONSES

      APPELLEE’S RESPONSE 1. - APPELLANT’S ISSUE 1 IS
      MULTIFARIOUS AND SHOULD NOT BE CONSIDERED.

APPELLEE’S RESPONSE 2. - APPELLANT’S ISSUE 1 IS NOT A PROPER
   ISSUE FOR APPEAL AS THE IMPOSITION OF A CONSTRUCTIVE
TRUST AND ORDER FOR SALE AND APPOINTMENT OF A RECEIVER
IS RES JUDICATA AND WAS OVERRULED IN CAUSE NUMBERS 12-09-
                 00279-CV AND 12-12-00374-CV.

APPELLEE’S RESPONSE 3. - APPELLANT’S UNSTATED ISSUE THAT
  THE ORDER OF THE DISTRICT COURT IS VOID BECAUSE THE
  RECORD FAILS TO SHOW THE HOMESTEAD STATUS OF REAL
PROPERTY AND THE APPLICABLE CONSTITUTIONAL EXCEPTION
   PERMITTING FORCED SALE OF HOMESTEAD PROPERTY IS
                BARRED BY RES JUDICATA.

APPELLEE’S RESPONSE 4. - APPELLANT’S UNSTATED ISSUE THAT
   THE ORDER OF THE DISTRICT COURT IS VOID BECAUSE THE
  RECORD FAILS TO SHOW THE HOMESTEAD STATUS OF REAL
PROPERTY AND THE APPLICABLE CONSTITUTIONAL EXCEPTION
    PERMITTING FORCED SALE OF HOMESTEAD PROPERTY IS
 INAPPLICABLE TO THE CURRENT CASE AS NONE OF THE CASES
            DEAL WITH A CONSTRUCTIVE TRUST.

      APPELLEE’S RESPONSE 5. - APPELLANT’S ISSUE 2 IS
      MULTIFARIOUS AND SHOULD NOT BE CONSIDERED.

   APPELLEE’S RESPONSE 6. - APPELLANT’S ISSUE 2 IS NOT A
PROPER ISSUE FOR APPEAL AS THE PREVIOUS ORDERS FOR THE
 IMPOSITION OF A CONSTRUCTIVE TRUST AND THE ORDER FOR
 SALE AND APPOINTMENT OF A RECEIVER IS RES JUDICATA AND
 WAS OVERRULED IN CAUSE NUMBERS 12-09-00279-CV AND 12-12-
      00374-CV AND THEREFORE CANNOT BE A BASIS FOR
OVERTURNING THE ATTORNEY’S FEES ORDERED IN THE DECREE
             ORDERING SALE OF REAL PROPERTY.


                           Page 2
APPELLEE’S RESPONSE 7. - APPELLANT’S UNSTATED ISSUE THAT
  THE ORDER OF THE DISTRICT COURT IS VOID BECAUSE THE
  RECORD FAILS TO SHOW THE HOMESTEAD STATUS OF REAL
PROPERTY AND THE APPLICABLE CONSTITUTIONAL EXCEPTION
   PERMITTING FORCED SALE OF HOMESTEAD PROPERTY IS
                BARRED BY RES JUDICATA.

APPELLEE’S RESPONSE 8. -APPELLANT’S UNSTATED ISSUE THAT
   THE ORDER OF THE DISTRICT COURT IS VOID BECAUSE THE
  RECORD FAILS TO SHOW THE HOMESTEAD STATUS OF REAL
PROPERTY AND THE APPLICABLE CONSTITUTIONAL EXCEPTION
    PERMITTING FORCED SALE OF HOMESTEAD PROPERTY IS
 INAPPLICABLE TO THE CURRENT CASE AS NONE OF THE CASES
            DEAL WITH A CONSTRUCTIVE TRUST.




                          Page 3
                                STATEMENT OF FACTS

       This appeal stems from the same case that was the subject of two previous

appeals. The factual background of the underlying case can be found in this

court’s opinion in Cause No. 12-09-00279-CV attached hereto as Appendix 1.1

The underlying order in the appeal in Cause No. 12-09-00279-CV was an Order

on Motion for Constructive Trust wherein a constructive trust was imposed on the

property in question.2 The imposition of the constructive trust was upheld by this

court. A petition for review was filed in the Supreme Court of Texas and the

petition was denied. Appendix 3

       Thereafter, further action was taken in the County Court in Cherokee

County. The result of this action was an entry of an Order for Sale of Real

Property and for Appointment of Receiver. A corrected order entitled First

Amended Nunc Pro Tunc Order for Sale of Real Property and for Appointment of

Receiver was entered on May 13, 2013. Appendix 4. Appeal was taken in Cause

No. 12-12-00374-CV. The judgment of the trial court was affirmed in this Court’s

memorandum opinion delivered on July 31, 2013. Appendix 5. A petition for

review was filed by the Appellant in the Supreme Court of Texas and the petition

       1
           There was a companion writ of habeas corpus in Cause No. 12-09-00278-CV.
       2
       The order was later entered as Nunc Pro Tunc Order on Motion for Constructive trust.
Appendix 2

                                             Page 4
was denied. Thereafter, Appellant filed a motion for rehearing of the petition for

review and this was denied. Appendix 6 (printed from the website for the Supreme

Court of Texas).

      Thereafter, a petition for partition was filed in the District Court of

Cherokee County, Texas, finally resulting in the Decree Ordering the Sale of Real

Property (Appendix 7) from which appeal was taken.




                                        Page 5
                         APPELLEE’S RESPONSE 1

  APPELLANT’S ISSUE 1 IS MULTIFARIOUS AND SHOULD NOT BE
                        CONSIDERED.

                         APPELLEE’S RESPONSE 2

APPELLANT’S ISSUE 1 IS NOT A PROPER ISSUE FOR APPEAL AS THE
 IMPOSITION OF A CONSTRUCTIVE TRUST AND ORDER FOR SALE
  AND APPOINTMENT OF A RECEIVER IS RES JUDICATA AND WAS
      OVERRULED IN CAUSE NUMBERS 12-09-00279-CV AND
                        12-12-00374-CV.

                         APPELLEE’S RESPONSE 3

   APPELLANT’S UNSTATED ISSUE THAT THE ORDER OF THE
DISTRICT COURT IS VOID BECAUSE THE RECORD FAILS TO SHOW
    THE HOMESTEAD STATUS OF REAL PROPERTY AND THE
APPLICABLE CONSTITUTIONAL EXCEPTION PERMITTING FORCED
 SALE OF HOMESTEAD PROPERTY IS BARRED BY RES JUDICATA.

                         APPELLEE’S RESPONSE 4

    APPELLANT’S UNSTATED ISSUE THAT THE ORDER OF THE
DISTRICT COURT IS VOID BECAUSE THE RECORD FAILS TO SHOW
     THE HOMESTEAD STATUS OF REAL PROPERTY AND THE
APPLICABLE CONSTITUTIONAL EXCEPTION PERMITTING FORCED
   SALE OF HOMESTEAD PROPERTY IS INAPPLICABLE TO THE
 CURRENT CASE AS NONE OF THE CASES CITED BY APPELLANT
            DEAL WITH A CONSTRUCTIVE TRUST.

                        SUMMARY OF ARGUMENT:

      As has become Appellant’s practice from the two previous appeals in this

case, Appellant combines multiple issues under a single issue and adds more


                                     Page 6
issues, not listed in the stated issues, in the body of his brief. The structure of the

brief is so confusing that is never really clear whether he is arguing a stated issue,

an issue from a previous appeal, or an issue not stated but inserted in the brief.

Therefore this court should disregard any assignment of error that is multifarious.

      In addition, Appellant continues to attempt to reargue the first two appeals

in current appeal. Further, Appellant is attempting to litigate the case before this

court by including evidence which is not part of the record and, as will be argued,

is perjured evidence. Appellant’s issue 1 is barred by the doctrine of Res Judicata.

      UNDERLYING FACTS and ARGUMENT AND AUTHORITY:

      In the interest of brevity and because of the nature of the argument,

Appellee’s Response 1 through 4, as well as the underlying facts and argument

and authority, are briefed together.

      To summarize the Appellant’s brief, I will modify a famous quote attributed

to Yogi Berra and say “It’s res judicata all over again.” It is not clear how much

of Appellant’s brief needs to be addressed as the foundation for most of his issues

(homestead and constructive trust being imposed to satisfy a debt) are settled

from two previous appeals and the rulings were adverse to him.

      As in prior briefs (12-09-00279-CV and 12-12-00374-CV), Appellant’s

issues are multifarious and his brief structure is so confusing it is difficult to

                                         Page 7
understand what he is arguing, especially when he adds new issues in the body of

his brief. For instance, Appellant adds an evidentiary claim in part A (Appellant’s

brief p. 17-18) of his brief by claiming proof of a homestead but not mentioning

that he raised a homestead objection in the trial court and failed to get ruling

(RR.4, p. 4). He later adds a lack of jurisdiction claim (Appellant’s brief p. 27),

and he only gets there after a torturous journey through the two previous appeals

and a related writ of habeas corpus and a failed attempt to re-litigate the claim.

      As far as his stated issues, Appellant lists two “Issues Presented” in his

Table of Contents. They are:

             Issue 1: The Decree Ordering Sale of Real Property
             (Appellants’ Homestead), and underlying orders
             impressing a constructive trust upon the Appellants’
             Homestead or compelling the forced sale of Appellants’
             homestead, are void as a matter of law.

             Issue 2: The order to pay attorney fees contained in the
             Decree Ordering Sale of Real Property and underlying
             orders impressing a constructive trust upon and ordering
             the sale of Appellants’ Homestead, are void as a matter
             of law. (Appellant’s brief p. iii)

      What is immediately obvious is that Issue 1 and Issue 2 are multifarious.

      A point of error is multifarious when it generally attacks the trial court’s

order with numerous arguments. See Hollifield v. Hollifield, 925 S.W2d 153, 155

(Tex. App.–Austin 1996, no writ); Clancy, 705 S.W.2d at 823. We may disregard

                                        Page 8
any assignment of error that is multifarious. See Hollifield, 925 S.W2d at 155;

Clancy, 705 S.W.2d at 824. Alternatively, we may consider a multifarious issue if

we can determine, with reasonable certainty, the error about which complaint is

made. See Green v. Kaposta, 152 S.W. 3d 839, 842 n.2 (Tex. App.-Dallas 2005,

no pet.). Rich v. Olah, 274 S.W.3d 878, 885 (Tex. App. Dallas 2008).

      In addition to being multifarious, the claims are barred by res judicata.

      Res judicata bars assertion of a claim in a subsequent case when (1)
      there is a prior final determination on the merits by a court of
      competent jurisdiction; (2) the parties in the second action are the
      same or in privity with those in the first action; and (3) the second
      action is based on the same claims as were raised or could have been
      raised in the first action. Travelers Ins. Co. v. Joachim, 315 S.W.3d
      860, 862 (Tex. 2010). Res judicata precludes the relitigation of claims
      that were finally adjudicated “as well as related matters that, with the
      use of diligence, should have been litigated in the prior suit.” Barr v.
      Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1991). Texas
      follows the transactional approach to res judicata barring claims
      arising out of the transaction or occurrence that is the subject matter
      of the first suit. State & Cnty. Mut. Fire Ins. Co. v. Miller, 52 S.W.3d
      693, 696 (Tex. 2001). As the Texas Supreme Court has explained,
      “[m]odern rules of procedure obviate the need to give parties two
      bites at the apple … to ensure that a claim receives full adjudication.”
      Barr, 837 S.W.2d at 631. Alanis v. Valdespino, 2012 Tex. App.
      LEXIS 4065, 17-18 (Tex. App. San Antonio May 23, 2012). See also
      this Court’s opinion in 12-12-00374-CV. Appendix 5

      Before getting into the Appellant’s complaints, it needs to be stated that

only one order was appealed in this current appeal and that is the Decree Ordering

Sale of Real Property entered by the District Court of Rusk County on November

                                       Page 9
14, 2014. As will be seen, Appellant pays cursory attention to this order at best.

His real focus is to reargue all of his complaints in two previous appeals in which

this court found against him.

Appellant’s Issue 1 - Res Judicata

      Appellant’s issues, as set forth above, in this appeal are essentially the same

exact complaints Appellant made in Cause No. 12-12-000374-CV wherein

Appellant complained:

              That the trial court erred in ordering a constructive trust
              and sale of the homestead of Jerry Byrom in order to pay
              a judgment for attorneys fees, guardian’s fees,
              accounting fees and interest thereon. (p. iv, Brief of
              Appellant, Jerry Byrom)

      This issue and the subsequent arguments were disposed of in this Court’s

Memorandum Opinion delivered on July 31, 2013. Petition for review to the

Texas Supreme Court was denied on January 31, 2014. The motion for rehearing

of petition for review was denied on March 28, 2014. Appendices 5 and 6.

      Of course, if this issue above looks familiar, that is because in Cause No.

12-09-00279-CV, Appellant complained (although not listed as an Issue

Presented):


              The court has exceeded its authority in ordering a
              constructive trust and sale of Byrom’s homestead

                                        Page 10
             property, located on land owned by him for more that 20
             years and at least partially paid for by community
             property funds equally belonging to his wife, Mrs.
             Dimple Byrom. (#6, p. 5, First Amended Brief of
             Appellant, Jerry Byrom)

      This issue and the subsequent arguments were also disposed of in this

Court’s Memorandum Opinion in Cause No. 12-09-00279-CV delivered on

February 16, 2011. Petition for review in the Texas Supreme Court was denied on

July 8, 2011. Appendices 1 and 3.

      Unless this court orders it, I do not intend to reargue settled rulings.

However, some of the settled rulings will be discussed to show Appellant’s

disregard of this court’s previous rulings and to show that he continues to make

the same tired arguments that he made in the previous two appeals and fails to

address the one order on appeal.

      Now, if you take the previously ruled on issues from the previous two

appeals out of the claimed issues in the current case, you are left with:

             Issue 1: The Decree Ordering Sale of Real Property
             (Appellants’ Homestead), and underlying orders impressing a
             constructive trust upon the Appellants’ Homestead or
             compelling the forced sale of Appellants’ homestead, are (is)
             void as a matter of law.

             Issue 2: The order to pay attorney fees contained in
             the Decree Ordering Sale of Real Property and
             underlying orders impressing a constructive trust upon

                                       Page 11
             and ordering the sale of Appellants’ Homestead, are (is)
             void as a matter of law.


      To summarize Appellant’s argument, The Decree Ordering the Sale of Real

Property is void and the order for attorney’s fees contained therein is void because

the orders from the previous two appeals, which he lost, are void.

      In regard to Appellant’s Issue 1, after you apply all previous rulings to it, all

you are left with is “The Decree Ordering the Sale of Real Property is void as a

matter of law.” Although entitled as a an order of sale, it is actually an order on

the motion for partition. Even a cursory reading of the Decree Ordering the Sale

of Real Property, makes it very clear that it is enforcing or executing the actual

order of sale of the property contained in First Amended Nunc Pro Tunc Order for

Sale of Real Property and for Appointment of Receiver. Appendix 4. In paragraph

6 of the Decree, the court writes “Accordingly, the Real Property must be sold per

the pervious order of the Cherokee County Court at Law, affirmed by the Tyler

Court of Appeals.” Therefore, all of Appellant’s complaints and arguments do not

apply to the Decree but are actually attacking the Order for Sale of Real Property

and for Appointment of Receiver which has been affirmed. In other words, his

whole and only basis for attacking the Decree Ordering the Sale of Real Property

is his claim that the prior orders are void. His arguments are the same old

                                       Page 12
arguments he made in the previous two appeals and are therefore Res Judicata.

      Appellant’s argument today is the same as the previous two appeals and it

rests on his claim that the property in question is the homestead of the Appellant

and that it is being sold to satisfy a debt and he makes this claim despite the fact

that this claim has already been decided. In order to establish these two claims,

Appellant chooses to ignore this court’s previous rulings, the law, and the facts.

Instead, he chooses to make the same homestead arguments that he made

previously in the two appeals he lost. The law is clear in that the claim of a

homestead being sold to satisfy a debt has been put to rest through two previous

appeals to this Court and the Supreme Court of Texas refusing to review this

Court’s decisions. Appendices 1,3,5,6.

Attempt to relitigate - The epitome of res judicata

      Since the appellate arguments have not worked, Appellant has tried in his

brief to relitigate the homestead claim by asking this court to make a homestead

finding by relying on the affidavits of Jerry and Dimple Byrom which are attached

to Appellant’s brief. (Appellant brief p. 18, Exhibits G and H). First, this attempt

at relitigation is the epitome of res judicata. Second, Appellant fails to state how

this court can become a fact finder in this case using evidence that was not

presented in the trial court. Third, Appellant fails to explain how a homestead

                                        Page 13
finding helps him especially in light of the two previous decisions out of this

court. Fourth, these affidavits are subject to a motion to strike filed in this cause

by Appellee and more importantly, there is no indication that these affidavits were

ever a part of the record of this case or in any way presented to the trial court.

Dimple Byrom’s affidavit (Appellant’s brief, Exhibit G) has a file mark on it from

the county clerk of Cherokee County but it does not indicate if it was filed in the

deed records or in a court record. This appeal stems from a district court case so it

would seem likely that if presented to the trial court in this case it would have a

district court file mark. It is not in the clerk’s record from this case with this court.

      What is most disturbing is that Appellant has attempted to interject evidence

in this case without notifying this court or opposing counsel. This wrongful act is

multiplied when you see that the date of Appellant’s affidavit (Appellant’s brief,

Exhibit H) is May 7, 2015 which is almost six months after the Decree Ordering

the Sale of Real Property was entered on November 14, 2014. To further multiply

the wrongful act, Jerry Byrom perjures himself in the affidavit. In the affidavit, he

claims that the house was constructed in March 2006 and before he received any

money from the estate. However, On June 2, 2009, while under oath in Cause No.

P10745, Jerry Byrom testified that he used the money from his mother’s estate to

build a house and that he used $200,000.00 of the estate property to build the

                                        Page 14
house. Appendix 9.3 The record and this court’s opinion in 12-12-00374-CV show

that the house was the house in question. Further, in the current case, Jerry Byrom

testified that there was no way to trace where the money came from. (RR.4, p. 22)

while claiming in the affidavit that no estate property was used.

      Also, Byrom’s claim to constructing the home in March 2006 is contrary to

the evidence Byrom himself filed with this Court Cause Number 12-09-00279-CV,

exhibit 3 of his Supplement to First Amended Brief of Appellant, Jerry Byrom.

Exhibit 3 is the contract for the construction of the house and is dated April 5,

2006 which is a month after he claims it was constructed. Appendix 10.

Moreover, the appraisal district shows the house having been built in 2007 (RR4,

P.10). This attempt to surreptitiously change the record not only by adding

evidence without notifying the court or opposing counsel but by adding perjured

evidence is reprehensible and I hope this court will consider sanctions.

Regardless, Appellant still fails to explain how a homestead finding helps him in

light of this court’s previous two rulings.

Debt claim - more res judicata

      Now to the debt claim. Appellant continues to argue that the “homestead”



      3
          This reporter’s record should have been filed in 12-09-000279-CV and/or 12-09-000278-
CV.

                                            Page 15
is being sold to satisfy a debt (Appellant’s brief p. 18). Appellant fails to cite to

any place in the record where the constructive trust was imposed to satisfy a debt.

If it were a debt, it would be a simple judgment or a lien. Instead, a constructive

trust was imposed. Moreover, Appellant never deals with the finding that “Byrom

wrongfully used the estate’s money to construct the home he now claims as

homestead”. Appendix 5. It was the estate’s money, not his, as he had argued in a

previous appeal. Further, as this court pointed out, Byrom had a statutory duty as

executor to pay the estate creditors and, in violation of his statutory duty, he used

the estate’s money for himself. Appendix 5. Appellant does not address the

misappropriation of estate money. Appellant does not address the statutory duty

to pay the estate creditors. Even if he could address these points, he would be

faced with the herculean task of showing what difference it would make in light of

the fact that these points have already been decided adversely to him in the

previous two appeals.

      What Appellant has failed to do is deal with the true facts of this case and

address them properly and in a timely manner. The proper time to have addressed

these issues was in the previous two appeals and he was unsuccessful in doing so

then. His arguments now are barred by res judicata.




                                        Page 16
Unstated Issue - Constitutional exceptions to sale of homestead

      In part B of his brief, Appellant attempts to confuse the issue of this case by

claiming that the homestead status of the real property and applicable

constitutional exceptions permitting forced sale of homestead property has to be in

the order for sale specifically the Decree Ordering Sale of Real Property.

(Appellant’s brief, p. 19-20). However, the Decree Ordering Sale of Real Property

(herein after “Decree”)(Appellant’s brief, p. 20) is not the order which actually

ordered the sale of the property. The Decree, which was entered as a result of the

of Appellee’s Original Petition for Partition, is nothing more than a ruling on the

partition and executing the order of sale issued by the County Court. The actual

order for the sale of the property came from the Order for Sale of Real Property

and for Appointment of Receiver ministerially changed in First Amended Nunc

Pro Tunc Order for Sale of Real Property and for Appointment of Receiver

(Appendix 4) and this order has been appealed, ruled upon, and put to rest. In

other words, Res Judicata.

      Even more importantly, the cases cited by Appellant are not germane to this

case. Not a single case cited deals with a constructive trust impressed upon

property under the same or similar circumstances of this case and the sale of that

property. Each one of Appellant’s cited cases deal with a lien or judgment. Not a

                                       Page 17
single constructive trust. Regardless, Appellant fails to explain how this is

relevant in light of this Court’s opinion in 12-12-00374-CV and cites to Baucom

v. Texam Oil Corp., 423 S.W.2d 434(Tex. Civ. App-El Paso 1967, writ ref’d

n.r.e.) And Bramson v. Standard Hardware, 874 S.W.2d 919(Tex. App.-Fort

Worth 1994, writ denied). Appendix 5. Homestead or not, the constructive trust is

valid as well as is the order for sale. Both issues previously appealed with adverse

ruling for the Appellant. Res Judicata.

Rearguing previous appeals

      Continuing with old arguments– none of which address the current order in

issue, Appellant attacks this Court’s opinion in 12-12-00374-CV and, like in

previous appeals, chooses conclusory statements and misdirection in an attempt to

confuse the issues in hope of getting a favorable decision. For instance, in his

brief Appellant writes about an independent executor not owing a fiduciary or

special duty to the creditors of a decedent’s estate (Appellant’s brief p. 28).

Appellant does not show from the record that the constructive trust was imposed

because of a debt. Appellant does not cite to a single place where this court in this

case ever said anything about Appellant owing a fiduciary duty to the creditors.

Appellant does not cite to a single place where this court found that the

constructive trust was imposed and the property ordered sold because of a

                                        Page 18
fiduciary duty owed by Appellant to creditors. This is because the court never

said or implied this type of fiduciary duty. What was said is that Appellant had a

statutory duty to pay claims against Ruby Byrom’s estate (P. 6 of 12-09-00279-

CV). Appellant has not said a word about this ruling. He has not said a thing

about his duty to pay the claims against Ruby Byrom’s estate and his failure to do

so.

      Appellant has not said a word about his fiduciary duty to the estate and his

breach of that duty. He does not say anything about these findings being in an

order that was appealed, the judgment affirmed, and the Supreme Court of Texas

denying the petitioner for review. Appendix 2,3, 4. He even claims that the

constructive trust was based on an alleged breach of“fiduciary duty” without any

lawful justification to support the conclusion that Jerry Byrom was a fiduciary

(Appellant Brief p. 29). He cites to the First Amended Nunc Pro Tunc Order for

Sale of Real Property and for Appointment of Receiver (Appendix 4) but fails to

mention or discuss the Nunc Pro Tunc Order on Motion for Constructive Trust

(Appendix 2) which is the foundation for the order for the sale and appointment of

a receiver. In that order, it was stated over and over again that Jerry Byrom

breached his fiduciary duty to the Estate of Ruby Renee Byrom. As has been said

so many times in this brief, that order was appealed, affirmed, and put to rest. It is

                                       Page 19
res judicata.

          Appellant’s continued choice to brief and argue faux facts and issues is

tiring.

Another undesignated issue

          Throwing in another issue in the middle of his brief on page 33, Appellant

brings up Dimple Byrom’s interest in the real property. Appellant fails to brief

and state how Appellant’s spouse gets to benefit from wrongfully acquired

property especially in light of Bransom v. Standard Hardware, Inc., 874 S.W.2d

919, 928(Tx.App. - Ft. Worth, 1994) where the court stated “Further, it is

immaterial that appellant was without knowledge or fault with respect to his wife’s

wrong doing.” The point in that case was that the “innocent spouse” could not

profit from wrongly acquired funds being put into a homestead. This is, of course,

the same case this Court referenced in its opinion in 12-12-00374-CV. Appendix

5.

          In this appeal, like the previous two appeals, Appellant’s choice not to

address the true facts, which in this case would include the results and facts found

in the two previous appellate ruling, and to continue to make the same argument

over and over doom him to fail.

          It is Res Judicata all over again.

                                           Page 20
                       APPELLEE’S RESPONSE 5

  APPELLANT’S ISSUE 2 IS MULTIFARIOUS AND SHOULD NOT BE
                        CONSIDERED.

                       APPELLEE’S RESPONSE 6

APPELLANT’S ISSUE 2 IS NOT A PROPER ISSUE FOR APPEAL AS THE
 PREVIOUS ORDERS FOR THE IMPOSITION OF A CONSTRUCTIVE
   TRUST AND THE ORDER FOR SALE AND APPOINTMENT OF A
  RECEIVER IS RES JUDICATA AND WAS OVERRULED IN CAUSE
  NUMBERS 12-09-00279-CV AND 12-12-00374-CV AND THEREFORE
 CANNOT BE A BASIS FOR OVERTURNING THE ATTORNEY’S FEES
 ORDERED IN THE DECREE ORDERING SALE OF REAL PROPERTY.

                       APPELLEE’S RESPONSE 7

   APPELLANT’S UNSTATED ISSUE THAT THE ORDER OF THE
DISTRICT COURT IS VOID BECAUSE THE RECORD FAILS TO SHOW
    THE HOMESTEAD STATUS OF REAL PROPERTY AND THE
APPLICABLE CONSTITUTIONAL EXCEPTION PERMITTING FORCED
 SALE OF HOMESTEAD PROPERTY IS BARRED BY RES JUDICATA.

                       APPELLEE’S RESPONSE 8

    APPELLANT’S UNSTATED ISSUE THAT THE ORDER OF THE
DISTRICT COURT IS VOID BECAUSE THE RECORD FAILS TO SHOW
     THE HOMESTEAD STATUS OF REAL PROPERTY AND THE
APPLICABLE CONSTITUTIONAL EXCEPTION PERMITTING FORCED
   SALE OF HOMESTEAD PROPERTY IS INAPPLICABLE TO THE
 CURRENT CASE AS NONE OF THE CASES CITED BY APPELLANT
            DEAL WITH A CONSTRUCTIVE TRUST.


SUMMARY OF ARGUMENT:

    Appellant’s whole argument in regard to Appellant’s Issue 2 is based upon

                                   Page 21
the same argument he put forth in support of Appellant’s Issue 1. For the reasons

set forth in response to Appellant’s Issue 1, Appellant’s Issue 2 should be denied.

UNDERLYING FACTS and ARGUMENT AND AUTHORITY:

      There is nothing more to be said on this issue. Appellant does not add

anything new to what he argued in his Issue 1. For that reason, Appellee

incorporates by reference her response to Issue 1 into her response to Issue 2.

Appellant’s entire argument is based upon the presumption that the Nunc Pro Tunc

Order on Motion for Constructive trust (Appendix 2) and the First Amended Nunc

Pro Tunc Order for Sale of Real Property and for Appointment of Receiver

(Appendix 4), both of which were affirmed by this court, are void. Therefore his

argument must fail and the judgment must be affirmed.

                         CONCLUSION AND PRAYER

      In conclusion, Appellee Jill Campbell Penn prays that this court in all things

affirm the judgment of the trial court.




                                          Page 22
                                           Respectfully submitted,

                                               /s/Joseph F. Zellmer
                                           ______________________________
                                           Joseph F. Zellmer
                                           State Bar Number 22258515
                                           620 West Hickory Street
                                           Denton, Texas 76201
                                           Telephone: (940) 383-2674
                                           Facsimile: (940) 382-7174
                                           Email: jfz@zellmerlaw.com

                                                /s/ Jill Campbell Penn
                                           ______________________________
                                           Jill Campbell Penn
                                           State Bar Number 24051181
                                           Richards & Penn, LLP
                                           P.O. Drawer 1309
                                           516 East Commerce Street
                                           Jacksonville, Texas 75766
                                           Telephone: (903) 586-2544
                                           Facsimile: (903) 586-6529
                                           Email: jill@therichardslawfirm.com

                     CERTIFICATE OF COMPLIANCE

      I certify that this document contains 5572 words, excluding appendices. I

relied on the word count function of Corel WordPerfect X4 word processing

software.

                                                   /s/ Joseph F. Zellmer
                                               ____________________________
                                               Joseph F. Zellmer




                                     Page 23
                         CERTIFICATE OF SERVICE

      I hereby certify that on this the 30th day of July, 2015, a true and correct

copy of the above and foregoing Appellee’s Brief was served on the following by

e-service or electronic mail: Joe E. Shumate, P.O. Box 1915, Henderson, Texas

75653 and Hon. Judge J. Clay Gossett, Cherokee County Couthouse, 115 North

Main Street, Suite 303, Henderson, Texas 75652.

                                          /s/ Joseph F. Zellmer
                                       ___________________________________
                                       Joseph F. Zellmer




                                       Page 24
                              APPENDICES
                            APPELLEE'S BRIEF

               Document                        Appendix#

Cause Number 12-09-00279-CV Court                  1
of Appeals opinion
Nunc Pro Tunc Order on Motion for                 2
Constructive Trust; No. 10745; County
Court Cherokee County; 11-16-2009
12-09-00279-CV Petition for Review                3
denied
First Amended Nunc Pro Tunc Order                 4
for Sale of Real Property and for
Appointment of Receiver; 5-12-2013
12-12-003 74-CV; Court of Appeals                 5
  ..
opmwn
Supreme court: review denied;                     6
rehearing denied;
Decree Ordering Sale of Real Property             7
Table of contents 12-12-00374-CV                  8
Appellant's brief
Byrom Testimony from 6-2-2009                     9
Contract for construction of house                10
APPENDIX 1
     J




                                    COURT OF APPEALS
         TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT
                                         FEBRUARY 16, 2011

                                         NO. 12-09-00279-CV

                   IN THE ESTATE OF RUBY RENEE BYROM, DECEASED


                                    Appeal from the County Court
                            of Cherokee County, Texas. (Tr.Ct.No. 10745)


                         THIS CAUSE came to be heard on the oral arguments, appellate record and
  briefs filed herein, and the same being considered, it is the opinion of this court that the judgment of
 the trial court should be affinned in part, dismissed in part, and vacated in part.
                        IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this court
 is without jurisdiction to consider the issues presented by Appellant JERRY BYROM relating to the
 contempt order signed on June 16, 2009, and Appellant JERRY BYROM's first issue and his
 "summary" arguments 4 and 5 are dismissed for want of jurisdiction.
                        IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this court is
 without jurisdiction to consider the award of attorney's fees to Roy Anderson for seeking the removal
of Appellant JERRY BYROM as independent executor, and that portion of Appellant JERRY
BYROM's second issue is dismissed for want of jurisdiction.
                       IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the portion
of Appellant JERRY BYROM's second issue regarding the award of attorney's fees to Roy Anderson
for the contempt action is hereby sustained, and the trial court's award ofattomey's fees in its June
16, 2009 order holding Appellant JERRY BYROM in contempt and for commitment to county jail is
vacated. In all other respects, we affirm the judgment of the trial court; and that all costs of this
appeal are hereby adjudged against the appellant, JERRY BYROM, for which execution may issue,
and that this decision be certified to the court below for observance.
                      James T. Worthen, Chief Justice.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
                                     NO. 12-09-00279-CV

                          IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

  IN THE ESTATE OF                                §            APPEAL FROM THE

  RUBY RENEE BYROM,                               §            COUNTY COURT OF

  DECEASED                                        §            CHEROKEE COUNTY, TEXAS

                                    MEMORANDUM OPINION
         Jerry Byrom appeals the county court's orders holding him in contempt and committing
  him to county jail, awarding attorney's fees, and imposing a constructive trust. On appeal,
  Byrom presents three issues. We dismiss in part, vacate in part, and affinn in part.


                                           BACKGROUND
         Ruby Renee Byrom died on February 5, 2005, and her son, Byrom, was named in her will
 as the sole beneficiary and independent executor of her estate. The will was admitted to probate
 in the County Court at Law of Cherokee County (the probate court), and Byrom was appointed
 the independent executor of Ruby's will and estate without bond. A few months after Byrom
 was appointed, Roy Anderson and Duane L. Coker filed claims in the probate court against
Ruby's estate. Anderson, who had been appointed by a Denton County court as Ruby's
temporary guardian, filed a claim based on two orders from that court for    paym~nt     of attorney's
and temporary guardian's fees. Coker, who had been appointed as the attorney ad litem for Ruby
in the guardianship proceeding, filed a claim based on an order from the Denton County court for
payment of attorney's fees.     Byrom, as the independent executor of Ruby's estate, denied
Anderson's and Coker's claims.
       Anderson filed a motion to remove Byrom as independent executor, or in the alternative,
to have Byrom show cause why he should not be required to post a bond. Anderson also moved
    to compel an accounting and requested attorney's fees. Byrom filed an inventory, appraisement,
    and list of claims, and Anderson objected to it. Thereafter, the probate court removed Byrom as
    independent executor for cause, but did not discharge him. Further, the probate court ordered
    Byrom to file an accounting and deposit $85,000.00' into the registry of the court within thirty
   days. The probate court also awarded Anderson attorney's fees against Ruby's estate in the
   amount of$14,034.1 0 for prosecuting the removal of the independent executor.
            Then, Anderson filed a motion to enforce the removal order by contempt and requested
   attorney's fees. On June 16, 2009, the probate court ordered that Byrom be held in contempt for
   failing to deposit $85,000.00 into the registry of the court, and ordered that Byrom be committed
   to the county jail until he purged himself of the contempt and complied with the probate court's
   orders. The probate court also awarded Anderson attorney's fees against Ruby's estate in the
  amount of $7,058.17 for the contempt action.
            Anderson filed a motion for a constructive trust to be imposed on Byrom's real property
  in Mount Enterprise, Texas, and requested attorney's fees. Coker, as intervenor, filed a notice of
  joinder in the motion to impose a constructive trust and an application for a turnover order. On
  August I 0, 2009, the probate court granted the motion for a constructive trust, finding that
  Byrom had breached his fiduciary duty to Ruby's estate. 2 The probate court ordered that a
 constructive trust in the amount of$200,000.00 be imposed on Byrom's real property, and that if
 that amount was not paid into the registry of the court within thirty days, the probate eourt would
 order that the property be sold.         Further, the probate court awarded Anderson and Coker
 attorney's fees against Ruby's estate totaling $6,412.94 incurred in obtaining the constructive
 trust. The probate court also ordered that a writ of attachment be issued for Byrom for failing to
 appear at the August 10 hearing even though he was ordered to do so. Finally, the probate court
ordered that Byrom be brought before the court to fulfill the terms of the order holding him in
contempt.
        Byrom filed an application for a writ of habeas corpus seeking bond and the probate court
set his bond at $80,000.00. Byrom's attorney filed the bond and Byrom was released. After a
        1  In the order removing Byrom as independent executor, Byrom was ordered to deposit $622,786.22 into
the registry of the court. On December 9, 2008, the probate court issued a reformed order directing Byrom to
deposit $85,000.00 into the registry of the court.
        2
          0n November 16, 2009, the probate court entered a nunc pro tunc order to correct the rea] property
description attached to the original judgment imposing the constructive trust.


                                                     2
 •'



       hearing, the probate court denied Byrom's application for writ of habeas corpus, ordered Byrom
       taken into custody, and set his bond at $95,000.00. Byrom filed another habeas application,
       which was denied. This appeal fo11owed.


                                                 ORDER OF CONTEMPT

                 In his first issue, Byrom argues that the probate court erred by finding him in contempt
      and committing him to the. county jail for violation of its removal order requiring him to deposit
      $85,000.00 into the registry of the court. More specificaiJy, Byrom contends that the June 16,
      2009 contempt order violates the Texas Constitution, which forbids that a person be· imprisoned
      or incarcerated for a debt.
                A contempt order is reviewable only by a petition for writ of habeas corpus if the person
  held in contempt is confined. See In re Henry, 154 S.W.Jd 594, 596 (Tex. 2005); Cadle Co. v.
  Lobingier, 50 S.W.3d 662, 671 (Tex. App.-Fort Worth 2001, pet. denied) (citing In re Long,
  984 S. W.2d 623, 625 (Tex. 1999) (orig. proceeding)). Therefore, we lack jurisdiction to review
  Byrom's challenge to the June 16, 2009 contempt order on appeal. See Tex. Animal Health
  Comm'n v. Nunley, 647 S.W.2d 951,952 (Tex.l983); Vernon v. Vernon, 225 S.W.3d 179, 180
 (Tex. App.-EJ Paso 2005, no pet.); see also In re Long, 984 S.W.2d at 625.
               Moreover, on September 8, 2009, Byrom filed a petition for a writ of habeas corpus with
 this court, complaining of the June 16, 2009 contempt order. We granted Byrom's petition for
 writ of habeas corpus and ordered him discharged because we determined that the contempt
 order violated the constitutional prohibition against imprisomnent for debt and therefore, was
 void. 3 Con$equently, even if the contempt order could otherwise be reviewed by appeal, the
 issue Byrom raises here is moot. See Williams v. Lara, 52 S. W.3d 171, 184 (Tex. 2001) (stating
that if a party Jacks a 1ega11y cognizable interest in obtaining relief and, thus, no longer faces the
unconstitutional conduct about which he complains, that party's claim is moot).
              Byrom's flrst issue is dismissed for want of jurisdiction.


                                                 ATTORNEY'S FEES

           In his second issue, Byrom contends that the probate court erred in ordering subsequent
attorney's fees for failure to pay a court-ordered claim for attorney's fees. In his brief, Byrom

          3
              See In re Byrom, 316 S.W.3d 787, 793-95 (Tex. App.-Tyler 2010, orig. proceeding [mand. denied]).

                                                          3
    states that there were three separate awards of attorney's fees. We will address each award of
   attorney's fees separately.
   Removal of Independent Executor
             On September 10, 2008, the probate court removed Byrom as independent executor of
   Ruby's estate, and awarded Anderson attorney's fees against the estate in the amount of
   $14,034.10 for prosecuting Byrom's removal as the independent executor.
             Before addressing the propriety of the fee award, we must first determine whether the
   award is appealable. To do so, we consider whether the probate court's order removing Byrom
  as the independent executor - the order that includes the fee award - is an appealable order.
  Generally, an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39
  S.W.3d 191, 195 (Tex. 2001). Probate proceedings are an exception to the "one final judgment"
  rule; in such cases, "multiple judgments final for purposes of appeal can be rendered on certain
  discrete issues." De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (quoting Lehmann, 39
  S. W.3d at 192). The appropriate test for jurisdiction adopted by the Texas Supreme Court is as
  follows:

        If there is an express statute, such as the one for the complete heirship judgment, declaring the
        phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if
        there is a proceeding of which the order in question may logically be considered a part, but one or
        more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate
        order is interlocutory.



 /d. (quoting Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)). In addition,.courts may
 assess finality by determining whether the order to be challenged "dispose[d] of all parties O!
 issues in a particular phase of the proceedings" for which it was brought.                       Young v. First
Community Bank, N.A., 222 S.W.3d 454, 457 (Tex. App.-Houston [1st Dist.] 2006, no pet.)
(quoting De Ayala, 193 S.W.3d at 579).
        Here, there is no express statute providing that an order removing an .independent
executor is final and appealable. See Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex. App.-
Austin 2000, pet. denied). The question, then, is whether the order removing Byrom as the
independent executor disposed of each issue raised in the pleadings for that part of the probate
proceeding or, in other words, whether the order conclusively disposed of that phase of the
proceeding.     See id.   Anderson filed a motion requesting that Byrom be removed as the


                                                       4
   independent executor of Ruby's estate for cause, or in the alternative, be required to show cause
   why he should not be required to post a bond. Anderson also moved to compel an accounting and
   sought his attorney's fees. The probate court's order removed Byrom as the independent
   executor of Ruby's estate, but did not discharge him, ordered him to file an accounting, and
   awarded attorney's fees against the estate. Because the order challenged here addressed each
   issue raised in Anderson's motion, thereby conclusively disposing of this phase of the probate
   proceeding, the order removing Byrom as independent executor is a final and appealable order.
  See id.; De Ayala, 193 S.W.3d at 578. Therefore, the award of attorney's fees included in the
  order is also appealable.
          Next, we must determine whether Byrom timely appealed the fee award. The removal
  order was signed on September 10, 2008. Byrom timely filed a motion to reform the judgment
  or alternatively, for new trial, complaining that the award of attomefs fees was excessive,
  unreasonable, and unnecessary. Therefore, Byrom was required to file his notice of appeal on or
  before December 9, 2008. See TEX. R. APP. P. 26.l(a)(l) (stating that a notice of appeal must be
  filed within ninety days after the judgment is signed if any party timely files a motion for new
 trial). However, Byrom did not file his notice of appeal until September 9, 2009. See id. Because
 Byrom did not timely file a notice of appeal of the fee award, we are without jurisdiction to
 consider this portion of his second issue. See TEX. R. APP. P. 42.3(a).
 Constructive Trust
        On August 10, 2009, the probate court granted Anderson's motion for a constructive
 trust, and awarded Anderson attorney's fees against Ruby's estate in the amount of $4,662.94 for
 the constructive trust. On August 14,2009, the probate court also granted Coker's joinder in the
 motion for a constructive trust, and awarded Coker attorney's fees against Ruby's estate in the
amount of $1,750.00 for the constructive trust. These awards totaled $6,412.94.
        The availability of attorney's fees under a particular statute is a question of law. Holland
v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999). We review the availability of an award
of attorney's fees de novo. Estate of Hawkins, 187 S.W.3d 182, 185 (Tex. App.-Fort Worth
2006, no pet.). An award of attorney's fees is permissible if authorized by statute or· by contract
between the parties. Colonial Am. Casualty & Surety Co. v. Scherer, 214 S.W.3d 725, 729
(Tex. App.-Austin 2007, no pet.). If a personal representative is removed for cause, the
personal representative and the sureties on the personal representative's bond are liable for

                                                 5
   reasonable attorney's fees incurred in removing the personal representative or in obtaining
   compliance regarding any statutory duty the personal representative has neglected.            TEX.
   PROBATE CODE ANN. § 245(a)(2) (Vernon Supp. 201 0). In other words, section 245 ·provides for
   attorney's fees incurred in connection with the removal of a representative for cause or due to the
   neglect of an administrator in performing his statutory duties. Scherer, 214 S.W.3d at 731;
  Estate ofHawkins, 187 S.W.3d at 185 .
          Here, Byrom was removed as the independent executor of Ruby's estate for cause. See
  Scherer, 214 S.W.3d at 731. Anderson's motion for a constructive trust, and Coker's joinder in
  Anderson's motion, included allegations that Byrom failed to deposit funds into the registry of
  the court as ordered ·by the probate court to pay claims Ruby's estate owed to them. As an
  independent executor, Byrom had a statutory duty to pay claims against Ruby's estate. See TEX.
  PROBATE CODE ANN.§ 146(a)(3) (Vernon 2003). He failed to do so. Thus, Anderson and Coker
  requested a constructive trust to force Byrom to comply with his statutory duty .to pay their
  claims from the assets of Ruby's estate. Because Byrom was removed as independent executor
 for cause and Anderson and Coker incurred attorney's fees to obtain Byrom's compliance to
 perform his statutory duty, the probate court was authorized by statute to award Anderson and
 Coker attorney's fees incurred in connection with the constructive trust. See TEX. PROBATE
 CoDE ANN. § 245(a)(2); Scherer, 214 S.W.3d at 731; Estate of Hawkins, 187 S.W.3d at 185.
 Accordingly, we overrule that portion ofByrom's second issue regarding the award of attorney's
 fees to Anderson and Coker incurred in connection with the constructive trust.
 Contempt
        Finally, Byrom argues that there is no provision in the Texas Probate Code for obtaining
attorney's fees for civil contempt actions after an independent executor has been removed. As
noted above, the probate court ordered that Byrom be held in contempt, committed him to the
county jail, and awarded Anderson attorney's fees against Ruby's estate in the amount of
$7,058.17 for the contempt action. We granted Byrom's petition for writ of habeas corpus
regarding the June 16, 2009 contempt order and ordered him discharged because we determined
that the contempt order violated the constitutional prohibition against imprisonment for debt and
therefore, was void. A void order has no force or effect and confers no rights; ·it is a mere
nullity. In re Garza, 126 S.W.3d 268, 271 (Tex. App.-San Antonio 2003, orig. proceeding
[mand. denied]). Any attorney's fees based upon a void order must also be void. Ex parte

                                                6
    Fernandez, 645 S.W.2d 636, 639 (Tex. App.-El Paso 1983, no writ). Because the June 16,
    2009 contempt order is void, the probate court's award of attorney's fees to Anderson for the
    contempt action is also void. See id. Accordingly, we sustain that portion of Byrom's second
   issue.
   Disposition
             Byrom's second issue is dismissed for want of jurisdiction in part, overruled in part, and
   sustained in part.


                                         CONSTRUCTIVE TRUST

            In his third issue, Byrom argues .that he was not given proper legal notice prior to the
  entry of the order granting the constructive trust. More specifically, he contends that he was not
  given notice of the hearing and, therefore, the order is voidable.
  Facts
            At the hearing on the motion for constructive trust on August 10, 2009, the judge of the
  probate court stated that he had anticipated a letter from Byrom stating that he would be unable
  to attend the hearing. It appears, however, that the letter did not arrive because the court ordered
  the bailiff to call Byrom's name at the courthouse door. Byrom did not respond and did not
 appear at the hearing. Further, Anderson's attorney stated that all parties were given notice of
 the hearing. Subsequently, the probate court granted the motion for a constructive·trust. In its
 order, the probate court found that "[a]ll persons entitled to citation were properly cited."
          At the hearing on Byrom's petition for writ of habeas corpus, Byrom's attorney explained
 that prio;r to the date ofthe August 10 hearing, Byrom was required to be at his physician's office
 and, based on an understanding that he would receive something from Byrom's physician, his
 attorney went to a seminar in Galveston. According to Byrom's attorney, "[a)pparently" there
was a setting, but he did not recall getting notice. He stated that "I'm certainly not saying I
didn't, but I didn't recall getting notice of any settings on that day or I wouldn't have been gone
or I would have made arrangements." Then, Byrom's attorney stated that he was "not saying I
didn't. I sure don't -- didn't see one; and probably if I didn't or if I don't find something, I may
be filing some kind of a motion for rehearing on that receivership matter." The judge expressed
his recollection of some "concern" that may have led to his allowing Byrom to bond out pending
the current hearing because of "some notice issues." However, the judge declined to "point[] a


                                                  7
    finger at anybody." In his motion for new trial, Byrom complains about a lack of notice for a
   hearing on Anderson's motion for a nunc pro tunc order to correct an error in the order on the
   motion for a constructive trust.
   Applicable Law
            The law presumes a trial court hears a case only after proper notice to· the parties.
   Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.-Houston [1st Dist.] 1997, writ denied). A
   recitation in a judgment that proper notice and hearing were had provides prima facie evidence
   of such notice, which must be accepted as true absent proof to the contrary. A/dine lndep. Sch.
  Dist. v. Baty, 946 S.W.2d 851, 852 (Tex. App.-Houston [14th Dist.] 1997, no writ). To
  overcome this preswnption, an appellant must affirmatively show lack of notice.. Hanners v.
  State Bar of Tex., 860 S.W.2d 903, 908 (Tex. App.-Da11as 1993, writ dism'd); In reMarriage
  of Lamirault, No. 07-01-00133-CV, 2001 WL 1166373, at *2 (Tex. App.-Amarillo Oct. 3,
  2001, no pet.) (not designated for publication).       This burden is not discharged by mere
  allegations, unsupported by affidavits or other competent evidence, that proper notice was not
  received. See Hanners, 860 S.W.2d at 908; In reMarriage of Lamirault, 2001 WL 1166373, at
  *2.
 Analysis
         As noted above, the order on the motion for a constructive trust states that "[a]ll persons
 entitled to citation were properly cited." This is prima facie evidence that proper notice was
 given to all parties. See Baty, 946 S.W.2d at 852. To overcome this presumption, Byrom must
 affinnatively show a lack of notice.    See Hanners,. 860 S.W.2d at 908; ln. re Marriage of
 Lamirault, 2001 WL 11663 73, at *2. At the hearing on his petition for writ of habeas corpus,
 Byrom's attorney alleged that he did not recall receiving a notice of hearing, but did not
affinnatively state that he did not receive notice. Further, although the judge of the probate court
appeared to believe that there might have been some problems with notice, he did not elaborate
and declined to "point[] a finger at anybody." The record does not contain a letter from the
probate court or any of the parties regarding a notice of hearing. Nor does the record contain
affidavits or other evidence affirmatively showing that Byrom did not receive proper notice. See
Hanners, 860 S.W.2d at 908; In reMarriage ofLamirau/t, 2001 WL 1166373, at *2. Because
Byrom merely alleged that he did not receive proper notice of the hearing on the motion for a
constructive trust without any supporting affidavits or evidence, he did not meet his burden to

                                                8
   rebut the presumption that he received proper notice. Accordingly, we overrule Byrom's third
   ISSUe.



                                         "SUMMARY" ARGUMENTS

             In his brief, Byrom makes three other "summary" arguments, none of which are
   designated as issues in his brief.     In "summary" argument 4, he asserts that he is the sole
   beneficiary of Ruby's estate and, thus, there is no beneficiary who can claim hann from his use
  of funds from Ruby's estate for his benefit. Further, he claims that Anderson and Coker are
  "merely" creditors and that their interest in Ruby's estate is limited to the extent of their claims.
  In "summary" argument 5, Byrom contends that the real parties in interest have obtained
  ancillary relief for their claims and that renders the contempt action moot.          Both of these
  "summary" arguments appear to be based on his first issue, that the probate court erred by
  finding him in contempt and committing him to the county jail for violating its removal order.
 For the reasons stated in our discussion of Byrom's first issue, we lack jurisdiction to address
 Byrom's "summary" arguments 4 and 5.
            In "summary" argument 6, Byrom argues that the probate court exceeded its authority by
 ordering a constructive trust because the property to be sold is his homestead, is located on land
 he had owned for over twenty years, and was, at least partially, paid for by community property
 funds belonging to him and his wife. Thus, he contends, this property should not be subject to
 Anderson's and Coker's claims. An appellant's brief must contain a clear and concise argument
for the. contentions made, with appropriate citations to the authorities and to the record. TEx. R.
APP.   P. 38.I(i). Byrom does not provide any argument or citations to authorities or the record to
demonstrate how the probate court exceeded its authority.          His argument consists of only
conclusory statements that the probate court exceeded its authority, and that the property subject
to the constructive trust was his homestead and community property. Because Byrom has failed
to provide an adequate substantive analysis of this "summary" argument, he has presented
nothing for our review. See   TEX. R.   APP. P. 38.l(i). Therefore, we overrule Byrom's "summary"
argument 6.




                                                  9
                                                      CONCLUSION

           Because Byrom's June 16, 2009 contempt order is not reviewable by appeal, we dismiss
 for want ofjurisdiction his first issue, and his "summary" arguments 4 and 5. We also dismiss
 for want ofjurisdiction that portion of Byrom's second issue regarding the award of attorney's
 fees to Anderson for seeking Byrom's removal as independent executor. We sustain that portion
 of Byrom's second issue regarding the award of attorney's fees to Anderson for the contempt
 action, and vacate the probate court's award of attorney's fees in its June 16, 2009 contempt
 order. In all other respects, we affirm the judgment of the probate court.




                                                                   JAMES T. WORTIIEN
                                                                       Chief Justice

                                                                ., ............   ..




Opinion delivered February 16, 2011.
Panel consisted of Worthen, C.J., Griffith. J., and Hoyle, J.




                                                   (PUBLISH)

                                                         10
APPENDIX2
                             r·                                       (

             ©©~~                                                      EXHIBIT                  f+
                                              NO. 10745

  ESTATE OF                                     §               IN 1lffi COUNTY COURT
                                                §
 RUBY RENEE BYROM,                              §'                    OF
                                                §
. DECEASED                                      § .             CHEROKEE COUNTY, TEXAS

                                NUNC PRO TUNC
                    ORDER ON MOTION FOR CONSTRUCTIVE
                                             .      .
                                                      TRUST
       On thill day came befure the Court the MDtion for Coniltmc1ive Trost filed by Roy P.
 Anderson, Plaintiff and creditor in the above cause.
 APPEARANCES       .
      ROY P_.ANDERSON, PlU1tift appeared by his attorney ofrecord, DavidS. BoliSchor, ll.
     DefendantJERRYBYROM. appeared in person and by his attomcyof:record Joe Slmmate.
     DUANE L. COKER, intervenor and creditor. appeared by hls attomey of record Scatt
 Rectenwald.
 F.INDINGS.OF COURT
      · The Court. having examined the pleadings and heard the evidence and llig'Ullleilts ofcounsel,
FINDS that:
(1) . Plaintiffs pleadings arc in due furm and contain all allegations, hlformation. and
      prerequisites required by law.           ·
(2)     This Court has jurisdiction of the parties and subject matter of~ cause•
         .
(3)     Ajmywas waived and all questions of :fact and law were s~ to the Court. ·

(4)     A record of the testimony was duly reported
(5)     All peiSODS entitled to citation were properly cited.
(6)     Plaintiff was awarded a judgment against the Estate ofR~YRENEEBYROM, ~
        in Cause No. 7773 on~ 23, 20f17. in the amount of $31,992.75 with intel:est at 6% per
        year ~m date ofjudgment until paid. ·                      ·

(7)    ByOrderofthisCourtmtr.redDcc.ember8,2008, Plainliffwasawardedajudgmentagajnst
       the Estate of RUBY RBNBB BYROM, ~ed, in the amount of$14,034.10.

{8) .· ·By Order of~s CoUrt ectered.December 8, 2008 JERRY BYROM vias ordered to deposit
        prop~ of the Estate of RUBY RENEE BYROM in ~ amount of.$&5,000.00 in the
        h'"Att-v of the Court ofChe.rokce County, Texas to be used to pay the judgments awarded
        p~

(9)    On Jllile 16, 2009, an Order Holding JERRY BYROM in contCq,t and for commitment
       to jail was entered and Plaintiff was awarded a judgment a.~ tho Estate of RUBY
       RENEE BYROM. deceased~ in the amount of$7,058.17 with mtc:rist at 6% per year from



                                                      10
                                                                                                        J
                                            (                                c
                date ofjudgment until paid.

    (10)       JERRY BYROM spent estate assets in the amount of$200,000.00 to baild a house at 17441
                County Road 3226 South, Mmmt Enterprise, Texas for bis pemmal use and benefit.

    (11)       JERRY BYROM breached his fiduciary duty to the estate ofRlJBY RENBB BYROM.

   (12)        Due to JERRY BYROM's breach of fi.duci&ry duty to the Estate of RUBY RENEE
               BYRO¥, the real property located at 17441 County Road 3226 Sou~ Mount Bnteiprise,
               Texas should be encumbered by a ccm.struc;tive 1mst in the amount of TWO HUNDRED
               TIIOUSAND DOlLARS ($200.000.00) for the benefit of the Estate of RUBY RBNBB
               BYROM.                                     .         .
   (13)        Plaintiff expended attorneys fees and costs in the pursuit ofthis constmc:tive tmst as set out
             . below, and said fees are properly chargeable as costs oftbfs estate and should be paid by the
               Estate of RUBY RENEE BYROM;

          IT IS THEREFORE ORDERED, ADJUDGED AND DECRBBD that JERRY BYROM,
  breached his fiduciary duty to the .Estate ofRUBY ~BYROM.
          ITJSFIJRTHBR ORDERED,ADJUDGED AND DECREED that a constructive trust in the
  amount of TWO HUNDRED THOUSANP DOLLARS ($200,000.00) is imposed upon the real
  property described in Bxln"bit "N'- specifically tho SECOND TRACT, attached hereto 8Ild by
 ~ inCOipOiaieQ herein as if set out verbatim, and more CODlmonly known as 17441 County
 Road 3226 South, Mount Enterprise, Texas for the benefitoftheBstate ofRUBYRENBBBYROM.
         IT IS FURTHER ORDBRBD, ADJUDGED AND DBCRBBD that in the event the sum of
 $200,000.00 is not paid into the Registry of the Court of Cherokee County, Texas by JERRY
 BYROM witbin30 days nom the date ofthis Order, the Court shall enter an Order Authorizing Sale
 ofReal Property .And Appointment ofR.eceiver, wherein the Court shall appoint a receiver to take
 charge and possession of said real property described in Bxluoit ,.A" , specifically the SECOND
 TRACT, and shall be ordered to immediately place said real property on the marlret tor sale at a
 price that the receiver believes will ensure the sale of said property within 90 d~.
         IT IS FURTHER ORDERED, ADJUDGED AND DECREED that upon the sale ofsaid real
 property, all costs of sale shall be paid at the time of closing.
        ITIS FURTHER OR;JlERED,ADJUDGBDAND DBcRBliD thattheproceeds derlvedftom.
the sale of said real property shall be depositedintotheR.egisfcyofthe Court of Cherokee ColDlty,
Texas, and thereafter shall be disbmsed by the Clerk of the Registry of the Court of Chero.tcec
County, Texas to pay the creditors ofthe Estate ofRUBYRBNBB BYROM, specificallyjncluding,
but not limited to Roy P. Anderson, Plaintift: and Duane L Com. Intcmmor.
Attorney's Fees
        IT IS ORDERED. ADJUDGED AND DECREED that attorney's fees, expenses, and coSts
incurred in~ constructive trust suit by P~s attorney, in the amount of$4,662.94 are taxed

6'dil' on Motioa 'Iii Jliilament NiliiC fi1i 1\iiiC - hiii 3

                                                               11
                                        (                                      (


   as costs against the. estate ofltUBY RENEE BYROM and'said fees, expenses, and costs shall be
   paid· ·by cash, cashier's check, or money order, directly to DavidS. Bousdwr, II. at 217 Bast Oak
   Street, Denton, TX 76201 on or befure 1he lOth day ofS~ber, 2009. The attorney may enforoe
  this order for fees, expenses. and costs in the attorney's own name. .
           IT IS ~THER ORDERED, ADJUDGED AND DECREED that Plaintiff is granted
  Judgment against th~:~ Estate of RUBY RENEE BYROM in the sum of $4,662.94, plus post
  judgment interest at 6% from the date of this Order until paid, compounded annually.
             SIGNBDtbis_J_k_dayof                        1}~                ,2009.             ·       -

                                                                 Original Sign~d By
                                                         _       ~F\etcner
                                                         roDGB               G




                                                                           FILED
                                                                    at_JZ: ~( o'dock~M.
                                                                                 NO\. i   7l009
                                                                         LAVC::I<N~ LUSK
                                                                   C'.C.ER~. COti~C.')~r. TCoft;:!~l:£[ CO. TX
                                                                   By                              -       D~r




Oi'dr:ranMOtian fOr JUCiiiiiCiit Nun~ PiO tunc- PiiC 4

                                                          12
    .. .               .l'ln~ U'1lcr(~·
                     Sltu11tlltl }t ~los S of U'l!lllla'tSOD l:utti!J OD the filli..
                     ReiiiiJI lind JDill NITtiM: llf.IUCI lloiq thl ..., lucJ
                     sahl by 3 .H. &verett, to A. II. Hlll on the Z4tJI clay Df
                    Ja-ry, JJU, 'I"~N 011 thD ftll U'/ of .July, lilt.
                    ill the TOCDrd.s 'Gf Ill tal COIIIII}" Yal. l'/, Pill 474 acl
                    <175;
                    JEGL'aJKG at tha·nc oi di! tract ace sau tqr .r.T.
                    &TI'Jn to J.S. Til'P•• • ttdo on tlae :& bW of Jlaxlnll
                  · creek 1 l.l. 211" ln S 1 Yr••l        .   _
                    1tli!ICE S vlth the llallllllary lh• or . .111 fipps 260
                    ri'.s; to oUaet' c:or. on tho old 1•••• liaa-\lltlleea
                    t{lo Roosu aDc1 »art!noz. lcllpe a rub ln old                            tDu
                    laa111na ~rn GlllnCIIIIll to Staplla11a a s. G. ll" lli'.s.
                   s ' ,.,•• ; .                                         .
                    '!1W:CS 8 011 the 10111110 11.10 170 vn, en. ••• balnJ
                  · anDthn "Tipps .. tr.rt cor. • r.o. uu eli&, lira, s S vn.
                    11 S.J. an llrs. II IS 1! 4•1/l YJ'S,:             '   •

                   TII!IICI
                   1~•
                              s on Tl.tl,. .su. 210 vr1, cor. All aaid ilia a Ry.
                           brs. II 55 If JO YY.s,, a P.O. 6• bra, H 14 Jf .&   •
                                                                                                                 ··-
                   YTS.i
                   Tltn'CI!    W l'TI• t41 a. COl'. k.O, iD" !.l'r. Jl ~ I l
                   yrs, 1      11.0. JZ" dia. :bra. S lO &. 2 Ynr.;
                  nmU:a      10: 52D vrs. ta JrBC Df uDtllm" 'tract ann olllld
                   bt' &.oaola C:rlll.'forll a plllo 1-i• bra. s ;n J o&·'/10
                  Yrl.:

                   lDIJIIICB J 3SD          vn. te   }ll.aQ    of h1bm.!.q, coata.lnlq
                   U-t/la          •cr•• of tt.. IU1.111a leaaaa 1-1• aunor
                   ud 16.1 acril OA tit.• J~~ai11 Nanhoac s~nny_. ala




'
                   a trKt ~ f acrn of lud lll·•f.los S ot JlelldaraDII 1
                   aitaatet oa the lla..trl.rllt of tlao lfUUa Rera
                   ~ iu IDU CD!mtr, 'l'lllC&I.

                  Bohr til• • - lud              oae.      ..,i.i by J.U.    IY&>Pt:t t,p
                  A.K.       nu.111l tb 7tlt. of·Felo.   aar          un.
                                                             oiMI ncCm!H
                  :la ,kDk ! 1, paJD 47ft doOil.roCO~I o( lluok CoalY• ,
                         .                                          -    .
                  IIIG:orimiG u tilt hC of tbe tract of U ocns or
                  Lllllb ~""' ~ t:M !}II. of tile      K.re hlockr      •o
                  'J1IBIICB I' ritJI tllo b111111&.r)- lbD' oJ tb i!dcl CnwfQrll
                  _UD ~.s. to .~er TOCt for ~rnor:
                  'RD!liC! 6 Ul vn. to citr, piP 12.• 'br.s, S 10 I I
                  YJ'S•l

                 lHIIICil I l9B vn. to the Sin: of tha J&ld -Ill acrca
                 tract a. a.o. Zt 11 lin~ 1l lif 1f a n;. a P.o. 12"                             .•
                 bn. s.tD & ~ YDol                     •  •
                 'l'HIDICII11 Ul n"J. to place of kJ1,aa\na, ccn\talllla&
               · :lA tlaa ,l.Nt tract • ecru c:oatai.Alna Jn all thn:•
           ,     .tncu 44          IU:.TN    Dl lei.
                  Tb!$ beiq th• .nne J.t.ad doscribad tn deed cla.ted
                 'Oct. !G, lJU lru C. Jl •                 .Da•u,
                                                       Dt ux to Freak
                  C1.,., recordod '!A V'olulle 121, Paae U6·117,
                ,IINcl lacot'Y of IW::t COaat)', 'l'uu.
     ueaJm TMtt':
                IBati!JfmG I.D tll.e lUL 0 f tlul liar j tr11ct: DW CMI~ol
                fly tb sail Jo'llaJ~. IIhc:A tllo '311td 1111. cras!es tlle
                Wuwell. bruu:Jr;                                •
                ~ I U5D n.s. to t'h UL or tile JIArtlR~tse
                LellJUIII                                                                                         P%Lff!D
                THBIICI Lf U I ll'ltll said loaruo lba, U25 ns. to
                •aid   Jl~ll brN-Cl~                 .                                       •             at f2; !S'_o-~cloc.k~M.
                Tfii!JICI. daWil ultl b:ranc:h. b a soutbrlT lltrectlaJL
               to the
               IIDD 8l'
                           jj!iCe of l111:rt.ul.fts~ COilbla\lw 76 ocnr, •
                             len,       wt
                                        ho:rotD!On bOUJht·lir IU fn111
                                                                                                                     ~Ol'   1 71009
               A.H. Tlloapsoa faT 1011 aau .1. the tre.rrant llorelaoftcr
               uos aot coveT t11 extrllllt anton pal't of tho trnct                                           . LAVE:.:RN£. LUSK
               lliich is JIDif ill canfllct 111tit. D.It. March 011 tho
               !law IIDa•n pl..C., there bdq "C:ba J6 &Cf4s
                                                                                                          CLERK. COUII'lr C~":T C'-HEROKEE CO. rx
               tho COJlfiic:t.          •                       •        .   •    --:---:-                l\y           4£                 Depuly
               1'111& beJAa tfla Said land desc:Tibod fa JIDOd fnnl
               .J,M, Jolmin to·fnnt c.a.r datod Dc:tobot J,·lfllt
               tecoriad ·u Yol, u, Pqo lU, Dood lcc;Ords a{ last
           · CoaRtr.         ru:u.                                  L                    1

               SlVJ AID .Eian w Gren.tn• do llero~y nrUYe Ill
               of tile all, 11•s 111cl aa•ot:l&tod ~rklu, b11t
               thU' r:Ull lii JIG D'f iDc:hcle coal or ~:lpltll or
               lllf otbr ~11111nl 111Jio:ll .,_ nrip or pit aiJW!a,
                                                                                         ....
                                                                                                                EXHIBIT_·A......----
                                    -                                                                 :
       · .nfJr c:onnraaco 1• aui IU'Ject n 111 Ylzht•·of·way •
         ud. or e&s191111ntl of reCDrd n that MJ be vJ.Il111e
                                                                                                                         __
           on .tellt.          .                                                 -1..)
                                                                               EXHIBIT B
                                                                Yll!1480 147
 STATe OP TEXAS
 coum·     OF RUSK           f     rHOI ALL Nl!lf BY   nJESB   PUSJ!BI'S:


      That.,   Me,   .ALTOM SfliCD.AHP a11.tl wife,    Of.UJ,Otr!
 STRICIU!I"D, or Xac:nJdoc:h~s County. Texas. f-or II!Jid lll. consiclera•
don of the s1111 or TIDf DOJ.L.\115 n•d other 1ood and valuable
considerati011, cosl1 to us h. bond paid, tho receipt alld
snlflc:i~ncy   of    Yh~ch   is hereby acknowledged, have GRANTED,
SOLD and COJ\IE\'f.D nncl by these prosonts do CRANT, SELL, mul
CONVET \tllto J:&lll\' llrnml and.wlfc, DUIPLE BYRON, of

Ill Trler Street, Jactsonrlllo, Cherokee County, Texas
75766 nnd    DO~Ir     BBIIY, oC 901 Crockett St., Joclsnnvllln,
Cherotoe    ~mtr,     Texas 75766, all or our right, title and
Interest in nud to the followJng dcs~ribcd tracts of land,
situat_. in Rusk County,         T~as,   to-wit:
     FiTSt Tract:
     Situcated U •J let S of Jlc!lldorson bctna on the ltillillll
     Reagan and Josle ~rtino: leaauo bcint the saae land
     sold by J.U. EYerett, to A.JI. 11111 on tbc 24tJJ day of
     Jaauarr, 1889, TrCOTded OD tbo ~th day of July, 1119,
     in tls~ records of s11ld county Vel. 37, Pa&e 474 ancl
     HS;
     BEGI~~r~~ at the A1fC of th~ tract once sold by J.T.
    lirvln to J,S. Tipps,  4 state on the B balll: of Maxwell
    crcC"k a R.E. lO" brs S 2 vrs. i
    TlmMCE S wJ tb the boundary line oC said Tipp£ 260
    vrs. to orrsot cor. on tho old league-line batHoen
    the Reatan and )fllrtlnez Joague a stake in old road
    lccolint fr(IJII Glenflllfll to Stephens a S.G. ·18" brs.
    SS\•rs.;
    T11~CE Eon the league line l?o vrs. cor,       same bein1
  · nnothcr Tipps off.st-t cor. 11 P.O. 10" ella. brs. S 5 vrs.
    a S.J. 8'' brs. J\ 83 II' 4•1/1. vr.s.;
    TIHilfCli S on Tipps SBL 260 vrs. cor. oa said line           D   Hy.
    Z4" bn. N SS \1' HI vrs., a P.O. 6" brs. N 84 lf 4                 .
    vrs.;
    TlJEJ:CE ill \•rs. to 11 cor. R.0. 20" brs • M 54 Lr 3
    \'rs. 11 R.O. IZ" dill. brs. S 20 E. 2 vrs.;
   TllllNCI: ); 520 vrs. to l:rllC or another trnct once ovned
   b)• l.cltis Crawford 11 plnc 12" bTS. s 32 lf 4-5/10
   \"rs.;
              ·.
                                                                              ·.---)
                                   ~·
                                                                          .
                                                                          . ,

~ ========--~--:--:--------
                                                                   .. ...··
                                         ·---.. . . . . --- -- -~ -·              .. .
              ~           '148
              THElfCB B 3SG vrs. to pl~e of boaimlln&, co•taillb-&
              23-9/10 acres of tbe lfillla11 Raqan leapo survep
              encl 16.1 aerO. on the Judo llartiDCI saner, abo
              e tnct of 4 acroa of laad 1t miles S oC Jlndersoa,
              situated on tha hoedd&ht of. the lfillba Ac!aaa
              leape la llllsk Couaty, TOJCAs,
              BaU., the sue lad ouco sold by J.ll. Evcn·ott tp
              A.H, Hill, oil ~ 7th day af·1eh. 190:l, llad rec:or.!od
              1n .book 51, paso 473", cleOd roc:o.nls or ltJDk coanty.
              BBGIJiflNG at the SBC of tlte tract of U acres or
              Lewb Cravfonl oa the   !.11. of tho tiO ~re block;
              THBNCR If witl the boundary llno o£ tbe sold Crawfqrd
              190 vrs. to earner rack for corner;
             tKEHCI S 121 YTI. to cor. plno 12" brs. S 10 I I
             yrs.;
             nlliNal E 190 vrs. ta tho SltC of the said .JG aero
             tract. a R.O. 20" brs. lf 54 1f 8 ns. a P.O. l2"
             brs.   s   20 E 2. vrs.:
             THEHCJ t1 121 Y1"S. to ploee of bcz:!aalnJ, ca.i.talnlq
             in tho last tract 4 acres contalalag Ia all three
             tracts •• acres of land.
             This bcitiJ the    sue laacl dos CT\bcd in dec:cl datctl.
             Oct. 30, 1923, from c. N. DJvis, ct PX to Frank
             Clay, recordod·iR Volumo 121, Paao 616-617,
             Deed Jccordl of Rdsl Couaty, Texas.
        Sl!COHD TRACT:
             lliCIMMiRG In the XBL of tho Eari troet no~r 011'11•d
             1:ry th• said JohDsoa when tbl!' said )IDJ. crosses the
             IUxwell brqcb;
             THl!NC& B 1350 vrs. to the lmL or the lll:a.rti.Jiezo
             Leaauo;
            'J'HBHCB H 65   wwith   saU l~&uo lino, 1425      ns.    to
            said Naxwall breach;
            THENCB dawn said br811ch in a. sout11erly direction
            to the place of )etinDlnl, contninin1 76 ucres,
            more or less, but herotofor~ bought by me fro•
            A.H. Tko~son for 100 acros, tbo ~arr~t boreilaCtcr
            does not cover tho extre~~~c Eastern part of the trnct
            11hich is now ill conflict with D.lf. N:areh 011 the
            Dow Rogers place, thent being the 76 a.c:res _
            the conflict.                     ·                  ·
             This being the same land described fn Deed from
             J.N. Johnson to·F~ank Clay da.tod October B, 1910,
             recorded in Vol. 68, Pate 112, Dead Kocords or Rusk
           · County, Texas,




.·
~~--_..__----( -~ _--..,_;-....,s---.....:.·,;,.;•:·---t::(
                                                                         ·1480. 149
                 SAYJl AND BIC!PT lAd    GTllll~O'I'S   dO Jleroby HIITW all
                 of tile all, aas ucl usoc:iated hyciTOCarboas, !nit
                 this slulll in DO vat !nclucla coal or li&Jdte or ·
                 aDy olhor m!neTGl alned by st~lp or pit aintaa.
                 This comreyu11cc is aade subject to all         ri&htl-of~vay
                 aad or oasomeuts of record or that may          be risible
                on staht.
                1V HAYI! JUID TO JIOJ.p the. abov~·desalbed pretdses,
         toaorbcr vith all and stncular, the ri&hta and appurt.Raaces
         Uterettt 11 u)'Viso bolonaiD& u_ah the said arantees, tleir
         heirs and assips, and       ~   do hereby blrul ourselYeS, our
        holrs, executors, ancl oclmi nist'ratora to Warrant and . PoHYO'r
        nrrend all aad staaular, the sai4 premises unto tbe said
        ·arantces, ·their lleirs oad llSsiens IJainst every person ·
        !thoasce\'Or   Iaw~ull)" c:~oillinl   or to cJ.aia the sue or any-
        part tho1'1!0f.
                ltiTNESS OUR   HAD   this tho Jtc# day of        _J...:.c-.w&.~d~'~J'----
        1936.




                                I
       Cotmrr OF J,l "·~-d,:.. 1

             This lnstr~ont vas a~knowledgcd before me this tbe~~
       day of Januitrr. 19lll'i 1 • by ALTO.~ STR.ICKLAMD and vife, ·
         CIARLOTTE' STRlgJ.AND




                                              My   Co~ssian   Expires:
                                                   1-tt-ic;




                                                                  16
APPENDIX3
       OFFICIAL NOTICE FROM
       SUPREME COURT OF TEXAS
       r _·. ~ o~~-Ji,;(- rl)1o: , ~~··::
       ;"'u--:·tt· .. ."(·~:~ :} :~;-~ ! -~ ;:.. ::- ~




       RE: Case No. 11-0237
       c~ *.: 12-09-00279-cv
STYLE: IN THE ESTATE OF RUBY                                            RE11WIIJiai
     Today the supt:eme Cout:t of Texas denied the petition foe
review in the above-referenced case.




                                         MAIL TO:


                                                                 MR. JOSEPH F. ZELLMER
                                                                 ATTORNEY AT LAN
                                                                 620 WEST ffiCKORY ST
                                                                 DENTON TX 76201-9032
                                                         111111111Ill I,, Jll11 I lllllf,lullti!IIIJ II I J1,11/IJH llllul.t
APPENDIX4
..
                                                    NO. 10745

      ESTATE Of'                                      ~               JN :rHE COUNTY COURT
                                                      §
      RUBY .RENEE BYROM,                              §                      OF
                                                      §
      DECEASED                                        §              CHEROKEE COUNTY, TEXAS

                                   FIRST AMENDED N1JNC PRO llJNC
                                 ORDER FOB Mtii OF RIAL PROPERTY
                                 AND FOR AfPOJNTMENT OF RECEIVER
              On this day the Court coll&idcred the F~ Ammded Motion for Judgment Nunc Pro 'J'uoc
      ofROY P. ANDERSON.
              IT IS ORDERED that the First Amended Judgmcmi NUDe Pro·Tunc be cmbD'ed as follows:
              Purswurt to this Court's.Onier d.a1ed November 16. 2()99, this Court finds tha,t 30 days 'have
      elapsed since JERRY BYROM. the prior Independent Executor of the Es1ate of RUBY RENBB
      BYROM, wu ordered wdeposit funds of the Estate of RUBY RENEE BYROM in the amount of
      $200,000.00 into the Registry of the Court of Chemkee County, Texas; that becmse of the fail~
      of JERRY BYROM to deposit said fun.cb ofthe Estate ofRUBY RENEE BYROM into                thc.RcPtrY
      of the Court of Cherokee County, Texu, that it il in tba best intz:rest ofth.e Estate for the following
     propetty to be sold and that tho sale is ~CCSS&l'Y aud advisable in order to pay the cl.aiDY and
     judgma~ta     against the estme of RUBY RENEE BYROM,. dcccased. The property to be sold is
     described in Exhibit ..A" spCcificaHythe Sealnd Tract, which Exhibit "A" i:J attadJed luRto ISDd by
     reference iDcoipomt.ed herein. The Court further finds that a receiver should be sppointai to take
     clJarse and possesaion of said real property and to sell •d property al private e.
             IT IS ORDERED that tho property dacribod in Exhibit"A", specifically tb§ Second 'l'md,
     shall be sold at a private sale for cash.
             IT IS FURTHER ORDERED that m:.L PE..."iN, a JeSidart of Cherokee County, Texas,
     .po          the neoesaary qualifications, isDOtanllttomcyforor~latcdto BII)'partytothi:s actioa, and
     is a proper penclD to be, and is hereby appolnrrJd-receiver ofthe abovc-<iescribed property. 0o filiJl&
 . a. receivers bond in the amoUDt of$1 ,000.00     Personal co.oditioned as provided by law and approved
     by this Caurt, tOgether with the Oath prescribed by law. he ia authori.ztd., subject to control of this
     court, to do any and all acts necessary to the property and law conduct of receivemhip set' out below.
            fl' IS 'I".HEREPORE ORDERED that JILL PENN Shall:
             1.       Tako charse 8Dd possession.of the property described 8Dd commonly blown
                      17441 County Road 3226 South, Mount Ent~ Texas and mme particu11idy


                                                                                                                40
I   .• .




                           described in Exhibit "A" &t1achcd hereto, and due to joint ownmbip interest!, !hall
                           1i1c a Petition to Partition 1o detmnine the'divided interat of JERRY BYROM in
                           8lld tD said property, aDd shall partition said property ifpartitionablo, and sell said
                           property if not partitionahla.

                   2.      If said property is paltitioned .in ldDd by the Rusk County Court. then JERRY
                           BYROM' a interest in ' partitioned real pxupe.rty sba1l immediately be plated on
                           tho market for sale 'at a prices the bceiver belicv will eMire the sale of ·d real
                           property within 90 days.

                           a.     All costs of sale and any and all liens SDd judgment shall be paid at tbc time
                                  ofolo!ing.

                           b.     AU fees, charges IDd expenses ofthe Receiver shall be paid after pa)'IDI.!Dt of·
                                  those- ex:pe:n!es set out in -a. •above.

                           c.     The sepa:nte and community intcrat ofJBRRY BYROM in tbe net proceed~
                                   'which is defined. tM gro      es prite I~ subparagraph a. and b. above).
                                  up to the sum of $200,000.00 ahall be dcposiled by Receiver in to tli.e
                                  Cherokee County Rqistry of the Co~ under cauae No. 1074!. Ally
                                  sep&rldr: and cOmmunity fn1tftst soma rcmainmg after the deposit ofup·to
                                  $200,000.00 u desaibed ~ shall be delivered to JERRY BYROM by
                                  Receiver.

                          If said property is not partitioned in kiDd and is ordered 50ld by the Rmk County
                          Court, then said Receiver i11 ordered follows:

                          a.      R.ecoiver sbal1 P'Y fiom 1he ~ n:ceived fiom Rusk County Court, ell
                                  fees, obaxges and ~ ioaurred by Remver.

                          b.      Receiver shall deposit sum DOt to exceed $200,000.00 into the Rqistry of
                                  tho Court of Cherokee CoUII.IJ', Tex.a, in Cause No. 1074S, from.1bose fimda
                                  received from 1M R       Ccmxty Court after paytna11 of subplrapph L
                                  above.

                          c.      Receiver shall deliver to JERRY BYROM my 8Dd all~ of money over
                                  and above $200,000.00.

                  IT IS Jo'URTIIBR. ORDERED that the parties sball f:OOpamte with the b:eiver, ineludi.D&
           without limitation, sipi:ng a:nyreal estate liltinaasreement. showing property toprospective buyeu,
           sad vatatiD8 premises, if necessary in the opinion ofthc R~.
                  Receiver may enforce this Order by contempt if the parties do not cooperate.
                  SIGNED this -~ day of _;_....p..:.---t:r




                                                                                                                     41
..   ..                                                                                                                       (


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                                                                                                                                  EXHIBIT_A_·_
                                                                                                                                                 42
APPENDIXS
                                         NO. 12-12-00374-CV

                            IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

INTHEESTATEOF                                        §                 APPEAL FROM THE

RUBY RENEE BYROM,                                    §                 COUNTY COURT

DECEASED                                             §                 CHEROKEE COUNTY, TEXAS

                                        MEMORANDUM OPINION
        Jerry Byrom appeals from the county court's order for the sale of real property and
appointment of a receiver. In one issue, he contends the county court erred in imposing a
constructive trust on his homestead property and ordering its sale to pay guardian's fees,
accounting fees, attorney's fees, and the interest thereon. We affirm.


                                                                  1
                                                 BACKGROUND

        Jerry Byrom was appointed executor of the estate of his mother, Ruby Renee Byrom. In
June 2005, Roy Anderson, the temporary guardian of Mrs. Byrom's estate prior to her death,
filed a $31,992.75 claim against her probate estate for temporary guardian's fees and attorney's
fees.   Byrom rejected the claim.           Byrom also filed an inventory and appraisement of Mrs.
Byrom's estate. Anderson objected to the inventory claiming that Byrom had omitted assets that
existed at Mrs. Byrom's death.
        On July 1, 2008, the county court removed Byrom as executor citing gross
mismanagement, misappropriation of funds, and gross misconduct. Ott August 10, 2009, the
county court granted the joint request of Anderson and Duane Coker to impose a constructive
trust on Byrom's home constructed with estate funds.                    The court ordered Byrom to pay

        1
         For a somewhat more extended recital of the procedural history of this case, see In re Estate of Byrom,
No. 12-09-00279-CV, 2011 WL 590588 (Tex. App.-Tyler Feb. 16,2011, pet. denied) (mem. op.).
        2
            Coker was the attorney ad litem for Mrs. Byrom in the guardianship proceeding.
should have been litigated in the prior suit." Barr v. Resolution Trust Corp., 837 S.W.2d 627,
628   (T~x.   1991 ). Texas follows the transactional approach to res judicata barring claims arising
out of the transaction or occurrence that is the subject matter of the first suit. State & Cnty. Mut.
Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001).
Discussion
         Byrom contends that the trial court erred in imposing a constructive trust on property he
claims as homestead and in ordering the sale of that property. Byrom raised these same issues in
the prior proceeding between the same parties and arising out of the same facts. This court ruled
adversely to Appellant on both claims. See In re Estate of Byrom, 2011 WL 590588, at *7.
Therefore, the doctrine of res judicata bars the relitigation of Byrom's claims.
         Moreover, the record indicates that sometime during the course of the litigation, Byrom
admitted that, while executor, he paid for the construction of the home on the subject property
with money from his mother's estate. Byrom was removed as executor for misappropriation of
funds and gross misconduct. Now, apparently, the estate has no money to pay the claims against
the estate. Byrom wrongfully used the estate's money to construct the home he now claims as
homestead.       The homestead law does not protect property or funds obtained with money
misappropriated by a fiduciary. See Baucom, 423 S.W.2d at 442; Bransom, 874 S.W.2d at 928.
         Appellant's sole issue is overruled.


                                                   DISPOSITION

         The judgment of the trial court is affirmed.


                                                                Bn..LBASS
                                                                 Justice


Opinion delivered July 31, 2013.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeats, sitting by assignment.




                                                    (PUBLISH)




                                                          3
APPENDIX6
                          IN THE SUPREME COURT OF TEXAS



NO. 13-0933                                     §
                                                §
                                                                            Cherokee County,
 IN THE ESTATE OF RUBY RENEE                    §
 BYROM, DECEASED                                §
                                                                                  12th District.
                                                §
                                                §


                                                                              January 31, 2014

       Petitioner's petition for review, filed herein in the above numbered and styled case,
having been duly considered, is ordered, and hereby is, denied.

                                                                                 March 28,2014

       Petitioner's motion for rehearing of petition for revtew, filed herein in the above
numbered and styled case, having been duly considered, is ordered, and hereby is, denied.




                                    **********
       I, BLA...T(E A. HAWTHORNE, Clerk of the Supreme Court of Texas, do         hereby certify
that the above and attached is a true and correct copy of the orders of the Supreme Court of
Texas in the case numbered and styled as above, as the same appear of record in the minutes of
said Court under the date shown.
       It is further ordered that petitioner, IN THE ESTATE OF RUBY RENEE BYROM,
DECEASED, pay all costs incurred on this petition.
       WITNESS my hand and seal of the Supreme Court of Texas, at the City of Austin, this
the 28th day ofMarch, 2014.

                                                     ES~A;.~
                                                     Blake A. Hawthorne, Clerk

                                                     By Kathy Sandoval, Deputy Clerk
APPENDIX7
                    ,,~   , ... r   "T   ::   • -'




                                                                                NO. 2013-18
                                                                                                                     2ot~N·ov
                                                                                                                      ·. ,    /4 PH
                          JILL CAMPBELL PENN IN HER                                  §            IN THE DISTRIC~5kQURT ~· ~: I~
                          CAPACITY AS COURT APPOINTED                                §                      RUSK~ou
                                                                                                                  r. 1¢EY TERRY .
                          RECEIVER                                                   §                         ·· ·      ·    DISTRICT'Ct;Eou
                                                                                                                   BY.       ~    .        ""
                          v.                                                         §            OF
                                                                                                                   · ~DEPU.Ty
                          JERRY BYROM, DIMPLE BYROM,                                 §
                          And DOROTHY BERRY                                          §            RUSK COUNTY, TEXAS

                                                     DECREEORDERIJNGSALEOFREALPROPERTY
                                 On August 11, 2014, came to be heard the above-entitled and numbered cause. Jill
·' ..     ·. '   ... . Ganipbell Pe.pn, Receiv~r,- app~l1J'ed. in per~on.an,d as attomey.<:>(record and·annoutlce~l.·ready for .
   '                 · · trial. Defendants J_eriy and Dimple Byrom .and Dorothy Berry appeare'd.by· attorney Joe·SliUm:a~.·-·:
        .·
                                 No.jury having been demanded, all matters of fact and things in controversy were
                          submitted to the Court. In due consideration of all matters of fact and law, and a..fter hearing the
                          evidence and arguments of counsel, the Court is of the opinion and finds that:

                                  1. Jerry Byrom, _Dimple Byrom, and Dorothy Byrom are the sole owners of the real
                          property more fully described on Exhibit A attached hereto and incoq)orated herein, more
                          comm':mly known as 17441 County Road 3226 South, Mount Enterprise, Texas, specifically the
                          .S~ond·Tract described thereon (the "Real Property").

                                 2. The Real Property is subject to no mortgages, liens, or other encumbrances. The Real
                          Property at Interest is currently o\vned by the parties as follows:

                                                 Jerry Byrom owns an undivided 113 interest in the Real Pr9perty

                                                 Dimple Byrom owns an undivided 1/3 interest in the Real Property

                                                 Dorothy Berry owns an undivided 1/3 interest in the Real Property
  ..·. . .
    :.-
                                 3-..The Cherokee Co\inty ·court at taw ord~red Defe.t Jerry Q-yr~mi to depo~it :
                          property.ofthe. Estate of RUBY RENEE BYROM in the amount of$85,000.00 in the Registry of
                          the Court of Cherokee County, Texas to be used to pay the judgments awarded to Roy Anderson,
                          who was the temporacy guardian of Jerry Byrom's mother before she passed away. Defendant
                          Jerry Byrom did not do so.                                           ·

                                         4. The present value of the Real Property is between $352,0_00.00 and $373,000.00.

                              5. On August 1Olh 2009, the County Court at Law of Cherokee County signed an order
                       Granting a Constructive Trust, which WI!$ later the subject of a Nunc Pro 'Tunc simed on Nov
                       i6tij2909,Jh~t $200,000.00 should be placed in the. Registry of the Court of Cherokee Co\mty,
                    . -TX within ·30 days. This did not occur;                                           ·




                                                                           Vol. 2851 1>1tge 138
                                             6. The Real Property is not susceptible to a fair and equitable partition in kind because to
                                     do so would hinder the value of the property and cause substantial economic loss such that the
                                     entire amount to be placed in the registry of the Court could not be so placed. Accordingly, the
                                     Real Property must be sold per the previous order of the Cherokee County Court at Law,
                                     affirmed by the Tyler Court of Appeals.

                                            7. IT IS ORDERED THAT Jill Campbell Penn, is appointed Receiver by this Court, to
                                    the extent such an appointment is necessary, to conduct the sale of the entire Real Property.

                                            8. Pursuant to the Cherokee County Court at Law Ordering the sale of the Real Property,
                                    the Real Property shall be listed for sale for a price that the Receiver believes will ensure the sale
                                    of said property within 90 days from the date this Order is signed. Receiver is authorized and
                                    Oltl)ERED to enter into a contract to sell the Real Propercy.
               ;'   . .. ·...    . •. .           .. . . .     ~   .   .                         . .'                                         ~   .~ . .
                                                                                                                                                      ,,
                                                                                                                                                           .
          ,._ : ···:: ···:. · · 9. . Martha McD~ugal shall be the realtor for the Sale ~f the Real Piop~rty for a petjod ~t
                                    9(:) days.

                                             10. If the Real Property does not sell within 90 days from today, the Receiver has
                                    authority to adjust the sales price down based on the recommendation of Martha McDougal or to
                                    list the Real Property with another agent or for sale via public auction or private auction.

                                             11. Once the Real Property sells, the Receiver is entitled to $9,900.00 for payment of her
                                    fees and costs of Court. It is ORDERED that Receiver shall write herself a check in the amount
                                   .of$9,000.00 for attorneys' fees and costs. Additionally, the Receiver is entitled to and is
                                    ORDERED to pay all fees, charges and expenses incurred by the Receiver associated with
                                    selling the Real Property.

                                            12. In addition to the costs in paragraph 11, the Receiver is· ORDERED to pay Martha
                                   McDougal $450.00 for her time incurred.in preparing an real estate evaluation for the Court and
                                   testifying as to the value of the same. Such costs are to be paid after receipt of the funds from
                                   the sale of the Real Property.
'


f;:. :~· ..j>~~~.~~~~to=:~::~;:.sal:rihe~
              to
    ' ·..·-: : ·~ ·.   any),
                                         c;:::~=::i~
                                · limited closing co~: (if         appraisal costs; inspection costs, title ins'urance costs, ·realtor· ·
                                                                                                                                              .   :


                                  fees, auctioneer/consigntnent fees, and similar charges. The Receiver is ORPERED to pay all
                                  such amounts from the sales proceeds.

                                           14. After payment of the amounts in paragraphs 11 through 13, the Receiver is ordered
                                   to deposit the balance of fUnds from the sale of the Real Property, not to exce~d-$200,000.00,
                                   into the Registry ofthe Court of Cherokee County, Texas in Cause No. 10745.

                                               13. If after payment of all fees, charges, and expenses and the deposit of $200,000.00 into
                                     the Registry of the Court of Cherokee County, Texas in Cause No. 10745 there are any funds.
                                 · . re~aiillng or left over from the sale of the Real Property, the Receiver shall pay.those direCtly:tq..
                                     Jetry-. B~rom, Djmple Byrom, ·and Dorothy Berry in the amount of 1/3 to each.




                                                                           Vol. 28~ 4i'age 139
                - .io'             .•   ·i.




                                                      14. IT IS FURTHER ORDERED that Jercy Byrom, Dimple Byrom, and Dorothy Berry
                                              shall not do anything that would harm, hinder, or otherwise delay the sale of the Real Property
                                              and each are hereby enjoined from doing anything or taking any action that may harm or delay
                                              the sale of the Real Property. This Order shall be enforceable by Contempt.

                                                      15~  IT IS FURTaER ORDERED that Jill Penn as Receiver is authorized to and shall
                                              sign all documents necessary to effectuate a sale of the Real Property and that such signature on
                                              all deeds shall constitute ·full aild proper transfer of all right and title to the Real Property. 'If an
                                              issue arises and the signatures of Jerry Byrom, Dimple Byrom, and Dorothy Berry are necessary
                                              tO effectuate a sale of the Real Property, IT IS ORDERED that those parties participate in all
                                              aspects in getting the Real Property sold, including but not limited to signing any real estate
                                              contract or deed.
+:;··-, ...
•' .    0   •   • •    •   •
                                                                                                                                                                                 '.-
                                                                                                                                                               •   •   \·   0


                                                                                                                                                                                       ·,:




                                                                                                               Judge Presiding




    ..·:        . . .' .
                                    ..                                                                                                             ..... . .
  -""

                                                               .. ·   I   •;
                                                                               ..' ....                                                                 -~
                                                                                                                                                                                ,,
                      ,...     .                                                                                                                                                . ..




                                                   .. .


                                                                                          Vol. 2851 +age 140
APPENDIX8
                                                       TABLE OF CONTENTS


 CERTIFICATE OF INTERESTED PARTIES ........................ ii-iii

 TABLE OF CONI'ENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

 INDEX OF AUTHORITIES ........... . .......... . ........... . ....... v

 STATU'fES AN'D RULES .                                        It   ••••••••                        I        ••••••••••••••••                                           I   •••••••••••••••                                             v

STATEMENT OF TIIE CASE ........................................ 1

ISSUES PRESEN"''ED ............................... . .............. 2

         1.      That the trial court erred in ordering a constructive trust and sale of the
                 homestead ofJerry Byrom in order to pay ajudgment for attorneys fees,
                 guardian's fees, accounting fees and interest thereon.

STATEMENT OF FACTS ........................................ ... 2

SUMMARY OF AR.GUMENT . ....................................... 6

ARGlJMENT AND AUlliORITIES ................................... 7

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF COMPLIANCE ..................... . ............. 14

CERTIFICATE OF SERVICE ..................... .. ................ 15

APPENDIX                  •   I   1   1   1   •   It   I   I        I   I   I   I   I   1   I   •   It   I   ••   It   I   I   ..   I   e   I   I   a   I   I   I   •   •   •   I   I   a   It   •   •   t   •   t   I   I   Ill   16




                                                                                                -iv-
APPENDIX9
                                                                      6
                                                                 06/02 / 09

     1                      THE COURT:   Back on . the record in P10745;

     2    In Re:   The Estate of Ruby Byrom.

     3              Mr. Bouschor, I believe you indicated that you

     4   wanted to cal l Mr . Byrom.     Do you have any other

     5   witnesses besides yourself that you might want to c'all?

     6                     MR. BOUSCHOR:    No, your Honor.

     7                     THE COURT:    Okay.   Mr. Byrom, if I coul d

 8       get you to raise your right hand.

 9                                 JERRY BYROM,

10       having been first duly sworn, testified as follows:

11                              DIRECT EXAMINATION

12       BY MR. BOUSCHOR:

13            Q.    Mr. Byrom, would you, please, :state . your ful l

14       name for the record.

15            A.    Jerry Earl Byrom.

16            Q.    Mr . Byrom, you're aware that this Court signed

17       on December 8, 2008, an order which removed you as

18       independent executor from the Ruby Renee Byrom Estate,

19       not discharging you, and ordered you to do certain

20       things; i s that correct?

21            A.    Correct .

22            Q.    And one of the things that you were ordered t o

23       do was to place $85,000 in the registry of the Cherokee

24       County Court?

25            A.    Yes.


                             Janette C. Jackson, CSR
                         JACKSON COURT REPORTING SERVICES
                                  (903 ) 677 - 8353
                                                                       7
                                                                   06/02 /09

     1            Q.    And have you done that?

     2            A.    No.

     3            Q.   And why not?

     4            A.   Don ' t have it.
                                I




     5            Q.    In thi s same·order you were found to have'

     6   received $622 1 786.22 of property that belonged to the

     7   estate; is that correct?

     8            A.   Correct .

 9                Q.   And what h ave you done with those funds?

10            A.       Spent it.

11            Q·.      And where did you spend it?

12            A.       Here and t here.   Different things .

13            Q.       Well 1 would you be specific please?.

14            A.       Bought some pickups and bought some cows.

15            Q.       All right.   Can you tell me as far as the

16       pickups, what pickups did you buy?

17            A.       Bought a 2001 Dodge.

18            Q.       Anything else?

19            A.       Built a house.

20            Q.       You built a house.     And where are you living

21       right now?      What is your address?

22            A.       17441 County Road 3226 South 1 Mount Enterprise,

23       Texas.

24            Q.       Okay.   And is that the hous e you built?

25            A.       Yes.


                              Janette C. Jackson, CSR
                          JACKSON COURT REPORTING SERVICES
                                   (903 ) 677 - 8353
                                                                      8
                                                                06/02 / 09

     1         Q.    And is this the house that · you ' re homesteading?

     2         A.    Yes.

     3         Q.    So are you telling the Court that you spent

     4    this money on your current residence?

     5         A.    Part of it 1 yes.

     5         Q.    Okay .    Approximately, how much of this $600 ,000

     7    did you spend on this house?

     8         A.    Oh 1   200.

     9         Q.   And you said you bought some cows.

10             A.   Yes .

11             Q:   How many head of cows did you buy?

12            A.    About 30 .

13             Q.   And where are they l ocated?

14            A.    At that address.

15            Q.    How much land do you own at this address?

16            A.    About 150 1    60 acres.

17            Q.    156 acres?

18            A.    150 or 60 .

19            Q.    Okay.      Do you have any other excuse for not

20       paying thi s money other than you spent it?

21            A.    No .

22            Q.    Do you recal l    taking an .oath that you were

23       going to uphold the law of Texas and probate your

24       mother ' s estate truthfully?

25            A.    Yes.


                               Janette C. Jackson 1 CSR
                           JACKSON COURT REPORTING SERVICES
                                    ( 903) 677 - 8353
APPENDIX 10
                                                                                          == Jrop-nsal                                = = = p....~aNo.. .                                                                        of




r·                                                                         THORN CONSTRUCTION COMPANY
                                                                                                         11458 FM 3226
                                                                                                    ARP, TEXAS 75750
                                                                                                                                                                          .


                                                                               Office     (903) 566·3998              Shop (903) 566·8794
     PROPOSAL SUBMfTTED TO                                                                                          PHONE
         Je.rr                                                                                                      903-586=297
 STREET                                                                                                            JOB NAME

         C.R.Road 3226                                                                                              Residential Ho e
             , STATE and ZIP CODE                                                                                  JOB LOCATION
                                      rise, Tezas                                                                   c.      0.
                                                                                    DATE OF PLANS                                                                                                                         JOB PHONE

                                      A:s·sociates                                  3-5-06
          We hereby submit specifications and estimates for:

.I . . . . . . . . ---·-·-·Labor
                            · ··-···-·· · .and
                                           . .····-··-··--·---···----------·-·
                                                          materials to -· ·form· . . .,._,______________
                                                                                                and,. ,_  . _____,a. _,_________________
                                                                                                         pour            4" slab        ,_______30•
                                                                                                                                                ________________
                                                                                                                                                           -6"-=·--.by
                                                                                                                                                                     . ·-----··--.
                                                                                                                                                                         79'-8"   . . .___with
                                                                                                                                                                                          . _______. _____ -
  a brick ledge around perimiter. With footings around entire foundation
 .. --·---·-··--·-···-..
,-                                            ....-·------·..--····--..-·..-..... ··-··--··--··--·---------..···---··---··-----------. -------..----:·-..- ···-·-..
                                        ··- ···-···- --·· ·-···-····----·-:~




l   2" by 12" with 4 re-bars in footing. The slab will have 3/8" re-bars on
   ---····---------·-··· ....·---·--·--·-..-·-·-··---·-·-·-·-··---·-·-·---..---------- -·-··---.....                                      ......               .                               _______                                _______
 l8" each way. Conc.rete will be 5 sack 3000 P. s. r. m~ Tli~re will be two
              ---·---.:.:...-----·----..-·----
 ~·--····---------·------·-..                  · - - - -·------·--·---· ·- - - -----:--------·--
 lorches                               one 10'-0". ~ 14"-0" and one 8"-0" .,; 8'-0" aiso one storm cellar
 -. . ' ........-.......... ·-···~·· ·-~·········-········· ·-·····-··-·---·--·- _. .___ .. .. - ___..____ ·----·..·-······-·--······-·--·-../:!!t__________,.......__,,_,..,________ ,.__ ,_______________,.. ,......... ·-·- ..

                                          .          '-1.                                                . '
 r~-=.~-~---~·-~-~..-: :.?.. :. . .0..-~-~. -~·?.·-~-·-- w~-~-~--~.!.:.~~. . . ~.~~-~. --=-~-~-~-=-~-~--~.~~ ~·--~·-t ~-·~.!'.....~~-~.: . . . ~~.:... . ~n.~:. y ·······-······
     ~y.Storm cellar will be built:first
             -                                                                  over part of it'
                                                                               --
     .,.... ......... -···--------·----..·---...............·----···.. ..·-·-···-·- ·--·--..        --...
                                                                                                            then the                 foundatio~
                                                       ..·--···--··-·---- ·---·---- --·-····--···...........-·-·-··--·-----····--····--
                                                                                                            ----·-··~···---··-··-·-·-
                                                                                                                                                                                                         .
     t    r entry way into closet. with a vent for air supply ~nto cellar.
         _. . . --,.··-·--·-·--·-.. . . - -..-·-             --·--·-·-----............-..-....----·------·-·-··-··-. _.,,_.. _... _. __..._.._.-··-·. ·---r---.-.·--·-----··- -------..-· _,.______ --


                                .
                        Structural framing and trusses by Three-D Steel of Overton.

     r~~~-~-~-: ~~-;~~;~. -~~n-~.!:~.-~~.~:~~-~.~-~a~;~-~~.~-~;·~-~~-....!.~~.~ ~~~!n~=-~!}_~-~~~E~~E ._:!~1~-
     ~
     I
         - -·    ,. _   · - - - · - - -· - - · - - - -                                               0




     ~~i~·;··-~-ii~ci-~~:~=n·:n.;o;~~~~~~·ci~~i-· ~i·i~=~ w_i._~E. ....!.l..~:-~~-·- ~-~~~--!> 0 ~-~:.PE~-~.-~-~E-~.-·-·-·-----··
      1
                        Roof material to be 26 Gauge R Pannel Soffett to be 26 Gauge riverse
         1---···· ··-···--------·------····-- - --··-·-·-·-·-..................... ··-·--·-···········-·-·····--·- "·-·- ··----····-·..····-······ """··-··-···--..·--·-- - -·-·-- ------ ---·········-···
         L  U-Pann~ls.
         f.'.-.. . _____,. .--~---.Colors  bt Olient----~--------------- ---:-· ~oof.Color o~
                                   ---·---·---·-..:---
                                                     ---··-·-·---·--··. -·--·-·----·.----- -·-- "--:--..-.·-··--·-----·------·- ·-
         1
             fett.----------- ----------~ ·                                                 and trim.
                    lit Jropott                hereby to furnish material and Iabo~- complete In accordance ·with above specifications, for the sum of:


         E
         1---to be-made
                    - as-follows:
                           - - -----C-------,---------- - dollars($                                                                                                                                                                         ).




             trptanrt of Proposal- The abOYe prices, specifications
                nditions are satisfactory and are hereby accepted. 'lbu are authorized
             ;lfle WOrk as specified. Payment will be made as outlined ~bove.
                                                                                                                Signature    ~~.J.!:!::==-=-i;~~~~~~C-.J---•                                                                           EXHIBIT
                                                                                                                                                           __::.:··;.:.·.·.=. ·. :.·;~·. .:.;·.;·. ;'ai'~""~t·..-.··.:. .·.:.~'"II~
             fAcceptanoe:- - - - - - - - - - - . , - - - - - -                                                  Signature _ __..;:..___ _
                                                                                                                                                                                                                                        3
                                                                                              P.i!!"! To Reorder:
                                                                                                                                                                                                                                                                                            r· GVO"
~====~======~=== wropnsat


, •.                                                                                   THORN CONSTRUCTION COMPANY
                                                                      .                                   11458 FM 3226
                                                              ·                 .                        ARP, TEXAS 75750
                                                                                           Office (903) 566·3998 Shop (903) 566-8794

                                                                                                                                                       PHONE                                                                    DATE

             Jerry Byrom
                                                                                                                                                       JOB NAME


        lTV, STATE and ZIP CODE                                                                                                                        JOB LOCATION


                                                                                               DATE OF PLANS                                                                                                                                              JOB PHONE



            We      hereby submit specifications and estimates for:

I·-··-···-····-·""-.J~.Q...!?_'t...J.,.~.-J?h~.~-tJ~,_I~L-.l.:!Jli!J...~.Q-.J2.~J.Q.W.:.!.,.,..,....-......,.....,...,.,,..,.,._...,.....,...,.,....... ,..,...,...,...._..,..,..., .._.,,.,,.....,..,.,.....,.,..,,.,.,._, __ _,,...,.....,.,.....,.,._, _____.,___,___,,_, __

r.._S.:t.9X.ID..,....~.~-l...l:A.!:..!,.• .•.:W.!_~.h. ._§_t~.P.§......~..'f.Y._<:L12.9.X£h~§._b.ll_Q_...E._...1.~--.f.Q.ll_P.._c!_at .!.Q.!L.!f i th._:[o o 'l::l.DS§.____., ______.,_.,
  -                                                         . Cost of foundation $ 13,500.00
I..?. n g__Q:L~ c k ___J e d_g~-!..............................ce~.l.ar.......c.o.s.t.....$..... 5.0.0.0~0.0.........,..........- ..--..··-······-····..·---l..,.J_~.t...2..9. Q..!_9JL......,....,. , .,. ,... . .,. ....,.,.. . . ..

.a··--·.,·--·-·---~!-~_g_!!_!_c;m......Q.~......!?.~iJ...9.!.!!g__
                                                                 . ~.!!.~t. . .g..f.y=·tn..: . .____. ......._...........,. ....,.,..,........,..,...,.......... .........l. ,!?.~-~Q.Q,!_o o--·-·-----·----·. ·---
~·--·-····--.......P...9.9X.~L-~!!.Q..._w i .n d Q!'!_~·-·~.!!.9._1.L..f. ~:...:f.Q.~.!!'!. ..J~Q.~ r ~-l?.Y_.S.:.!.!~.E.~ . ~..-.. .-.l··-··-~..L9.. Q9..-..9..Q. ._.....-....................,.,.. .......,



~::;:~=~~~~~::~:~~-==~=~~~~-=:!===--==
; . total price of all                                                          listed above                                                                                                                         ------------
J ·--·-·-·-···. ·----···--..------·-·--·-·-·--·---·-·-·-. --·· ··-··· ·-.. .... . . . . . . . . . . ... .... . . . . . . .-.. . .-....... . . . . ...,. . . . . ,..t.,. ?._~_!_.Q.Q_Q,.!..Q.Q..................,. ........................... ..
                             P..~.~~-~.~. ~.-~.~L....{.Q.!.,!.Q!.!.P.:.g.,....~.!:.Q.!'.~.--.S..~J..!~-f._.J._...?. !....Q.9..Q..!..Q.Q....,.P.~.Y-~.~.!.~....~.h-~.g__£.Q~P..!.~.~.!.L......-........
1 _. .........................



~1.:!!!.9..~. ~.i.2.~..-}f..h!?_n_. . .~.Q.~P.~-~~...~....._$........1l. .~...-?..QQ.~.Q.Q.._w~ 7!tPfoam
J Sheet roof, frame in walls and sheet with
                                                                                                    1~:.!.board.
                                                                                                          .- ~-~~m i .!!Swill
                                                                                                                          __l!P_.E.!!.!..:!. ~!~.9................ . ...
                                                                                                                                 be by                            1/2~
,e.ek.l..y_..d.r.a.:w.s__                       :f.ai......l.a.boi.-................_......- ......................... ............._.._.._......,_..................................._.._., __ ..,_.,,__,..........- ......._..........................................................................




~~:;;;;;~;.;~:::::~::::!!:~:~~'
                     Db fropos.e                 hereby to furnish material and labor -                                                    complete in accordance with above specifications, for the sum of:
      _ifty' Three Thousand and no 1/00-                                                                                                                                                                             dollars($           $ 53, 000. 00                                         ).
    l'ayment to be made as follows:
                        AS stated ab9ve


       material Is guaranteed to be as specified. All worlc to be completed In a workmanlike
       nner according to standard practices. Any alteration or deviation from above specifiCations
  ~g extra costs will be executed only upon written orders, and will become an extra
  :t!large over and above the estimate. All agraemen!s contingent upon strikes, accidents
    • delays beyond our control. OWner to carry fire, tom ado and other necessary Insurance.
        Workers are fully covered by Worlcman's Compensation Insurance.


  A.ttrptantr of tJrnpnsal- The abCNe prices, specifications
        conditions are satisfactory and are hereby accepted. 'lbu are authorized
       do the work as specified. Payment will be made as outlined above. ·

  ~JIIe of Acceptance:- - - - - - - - - - - = - - - - - - - -                                                                                     stgnat ure -------r~~cL'l!El'!'IRKr-,LAVEH.NE                            LU.S.K
                                                                                                                                                                                       'iico,uUrr.N"""Tv71el:rh~;.T!"!C""'"H~E~~9.!!E:.~oEC~CO-=-.
                                                                                                                 /A-.1 To Reotder:                                                                              BY---~====
                                                                                                              800-225-6380 or nebs.oom
