                            NUMBER 13-12-00026-CV

                               COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


          IN THE ESTATE OF RALPH LEE MINTON, DECEASED


                       On appeal from the Probate Court
                          of Hidalgo County, Texas.


                            MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Benavides and Longoria
            Memorandum Opinion by Chief Justice Valdez
      This appeal arises out of the probate court’s declaratory judgment ordering that

the funds in the accounts of the deceased Ralph Lee Minton (Minton) are the property of

his estate. By seven issues, appellant, Artemio E. Garza (Garza), appeals the judgment

in favor of appellees, Randall Lee Minton, individually and as Independent Administrator

of the Estate of Ralph Lee Minton, Glenda Marcelle Todd, Beverly Regina Alford, and

Wanda Lynn Smith (Beneficiaries). Garza argues that the trial court erred in its judgment

and denial of his motion for new trial because: (1) the evidence was legally and factually
insufficient to support the jury’s finding that Ralph Lee Minton lacked legal capacity to

enter into contracts with First National Bank designating Garza as the beneficiary of his

accounts; (2) the trial court reversibly erred by admitting evidence that was irrelevant,

cumulative, and contained hearsay; (3) the trial court lacked subject matter jurisdiction;

(4) a declaratory judgment was not an available remedy under the circumstances; (5)

Beneficiaries failed to request a jury question or provide evidence regarding whether

Minton disaffirmed the contracts; (6) Beneficiaries failed to plead rescission; and (7)

Beneficiaries failed to provide evidence that they lacked an adequate remedy at law. We

affirm.

                                        I.       BACKGROUND

A.        Procedural History

          On December 2, 2010, Minton passed away, intestate, leaving a checking account

and four Certificates of Deposit (C.D.(s)) totaling $432,968.73 at First National Bank (First

National). On March 25, prior to his death, Minton entered into payable on death (P.O.D.)

contracts with First National. The P.O.D. contracts designated Garza, a retired law

enforcement officer who had been friends with Minton since February 2007, as the

beneficiary of his account and three of his C.D.s at First National.1 On December 10,

2010, the estate filed an “Application for Independent Administration and Application to

Determine Heirship” concerning the account and C.D.s at First National. On December

16, 2010, Garza, relying on the P.O.D. designations, retrieved the funds from the bank

account and C.D.s at First National. On December 17, 2010, Beneficiaries filed an


          1 There is a dispute over whether the P.O.D. contracts named Garza the beneficiary of the fourth

C.D. The jury did not resolve the controversy over the remaining C.D. because it found that Minton lacked
capacity to enter into any of the P.O.D. contracts, and we do not address that dispute because we affirm
their finding on capacity.

                                                    2
“Original Petition and Application for Temporary Restraining Order” in which they claimed

that Minton lacked capacity to enter into the P.O.D. contracts because he “was of unsound

mind” and “could be taken advantage of and easily manipulated.” Beneficiaries also

requested that First National be precluded from transferring any further estate assets to

the Beneficiaries of the P.O.D. contracts and that Garza be restrained from spending any

of Minton’s funds.

       Garza made a verified plea arguing that the Beneficiaries lacked standing because

they had no justiciable interest in the claims asserted. Garza further filed a “counterclaim”

that the Beneficiaries had “neither capacity nor standing to bring the present action.”

       On December 21, 2010, the trial court held a hearing on Beneficiaries’ application

for temporary injunction, and on January 12, 2011, the trial court issued a temporary

injunction enjoining Garza from spending or dissipating any funds he received from

Minton’s accounts.2 On August 1, 2011, the trial court granted partial summary judgment

in favor of Garza dismissing “the issue of undue influence and all references thereto.”

The trial court commenced a jury trial on Beneficiaries’ remaining causes of action on

August 2, 2011.       On August 5, 2011, Beneficiaries filed their second supplemental

petition, asserting that the P.O.D. designations should be declared void because Minton

lacked the requisite mental capacity to execute them and praying that the trial court

declare that the funds were the property of Minton’s estate.




       2  We affirmed the temporary injunction in In re Estate of Minton, No. 13-11-00062-CV, 2011 WL
2475394, at * 4 (Tex. App.—Corpus Christi June 23, 2011, no pet.) (mem. Op.).
        .

                                                  3
B.    Evidence at Trial

      At trial, Beneficiaries provided evidence of Minton’s mental incompetence from

January 2010 through May 2010. The evidence indicated that Minton stayed at McAllen

Nursing Center from January 23 to January 24, 2010. The nurse’s notes admitted into

evidence indicated that Minton was alert and able to follow directions, but also that he

was uncooperative and confused during his visit. On January 26, Minton was brought

back to the McAllen Nursing Center in an ambulance.

      A few days later, Minton was sent to Legends Transitional Nursing Home

(Legends). The nursing home’s records indicated that Minton was alert, but forgetful and

demanding.    An “Elopement Risk Assessment,” signed by the attending physician,

indicated that Minton was cognitively impaired with poor decision making skills, and his

“Fall Risk Assessment” indicated that he had “intermittent confusion.” The nurse’s notes

stated that Minton complained that he was having a heart attack and that he would know

because he claimed he was a heart surgeon.

      On January 28, 2010, Minton was sent from Legends to McAllen Heart Hospital.

Heart Hospital’s admitting diagnosis stated that Minton had senility.    The hospital’s

records stated that a psychiatric evaluation was performed by a doctor on February 3,

2010 which concluded, “At this time, the patient is capable to make decision [sic]

regarding his health. He might have poor judgment and wanted to go home without

proper assistance.”   Sue Cook, case manager for McAllen Heart Hospital, testified that

she had contact with Minton around January or February 2010. She testified that Minton

was sick but refused nursing assistance.




                                           4
       Minton was admitted to McAllen Nursing Home on February 5, 2010.                 The

admission notes indicated that Minton was alert but forgetful and confused. According to

the nurse’s notes, Minton was discharged on his own request from the nursing home the

next day, after being instructed on the risks of leaving.

       In early February, Adult Protective Services (APS) was contacted with concerns

about Minton. Margot Barriero, a specialist for APS, testified at trial that she investigated

charges that Minton’s friend had exploited Minton and that Minton had neglected to care

for himself. APS found that the exploitation charges were unfounded. Barriero testified

that, during her home visit, Minton behaved irrationally and did not have good judgment,

but was capable of making some of his own decisions. She testified that he was verbally

abusive towards her and called the police to have her removed. She testified that

although he could not leave his bed, Minton did not want nursing care and wished to stay

by himself. She stated that she closed Minton’s case because he obtained twenty-four

hour nursing care. Additionally, Bernabe Balli testified that he assisted Minton by running

errands for him. He testified that on February 6, 2010, he called the police because he

did not believe Minton should be left alone.

       John Tisdale, Minton’s long-time friend, testified that in January 2010, Minton had

problems thinking and making decisions, was easily agitated, and would not allow health

care workers to assist him. He testified that he often had employees run errands for

Minton, but that it was difficult to find help because Minton was rude to anyone who helped

him. Tisdale testified that Minton was bed-ridden and would stay for hours in his own

feces and urine, but would refuse to be cleaned and would request that the police be

called to have his healthcare workers removed. Tisdale testified that he informed Minton



                                               5
that he was not thinking right and needed help. Tisdale concluded that Minton lost his

mental capacity in January 2010 when Minton filed a restraining order against him.

       Randall Lee Minton, Minton’s son and the independent administrator of his estate,

agreed that his father could be abusive and stated that he had not spoken with his father

since 2007. He admitted that Garza had more knowledge of Minton’s mental state than

he did.   Additionally, Beverly Minton Alford, Minton’s daughter, testified that she had

stayed with Minton from February 20, 2010 through March 8, 2010, that their family had

a history of mental illness, that she witnessed Minton strike a medical provider, and that

Minton would become angry and yell obscenities. She further testified that Minton made

decisions that made no sense, and that she had to trick Minton into signing a check to

pay for his home health care, which she testified that he never would have signed had he

been mentally competent because he had always been very meticulous with his finances.

She stated that, earlier in his life, Minton was always up to date with all of his accounts

and C.D.s and that he once became angry at a bank employee because a date was

missing on a financial document.

       Paul Lopez, a caretaker for Minton’s healthcare provider, testified that he cared for

Minton from February 22, 2010 to March 10, 2010. He stated that Minton was a horrible

man, that he was paranoid and would see and speak to people who were not in the room,

and that he would request food items that he saw on television and drink curdled milk that

was far past its expiration date. Lopez testified that Minton once punched him and broke

his glasses. He stated that on March 3, Minton told him he wanted to go for a drive in

Minton’s car that was parked outside even though Minton no longer owned a car. He




                                             6
further testified that Minton refused to take care of his personal hygiene, and that Minton

would often have his hands in his pants and get urine and feces under his fingernails.

      Beneficiaries presented evidence that on March 26, 2010, the day after Minton

signed the P.O.D. contracts, he was admitted to the emergency room at McAllen Heart

Hospital. The hospital admission documents stated that Minton was unable to sign the

documents, and therefore Lopez had to sign the documents as a witness. The hospital

records also indicated that Minton had “adjustment disorder.”

      Pedro Hugo Gonzalez, an APS specialist, contacted Minton in early May 2010. He

testified that he made several home visits to check on Minton. He stated that he believed

that Minton could not care for himself due to physical disabilities. Also, APS worker

Belinda Cantu conducted an investigation and generated a report on Minton in May of

2010. She testified that she investigated Minton because he had no one to care for him.

She stated that Minton refused to speak to her and accused her of trying to conspire

against him. She admitted that she is not qualified to make a medical diagnosis, but

testified that Minton was neglecting himself and made irrational decisions.

      Furthermore, Francesco Jimenez, supervisor for APS, testified that he investigated

Minton’s case from May 10, 2010 to May 17, 2010. He stated that Minton could not accept

that he could not care for himself, that APS closed their case on Minton when he was

admitted into a nursing home, and that he ordered a psychological assessment of Minton.

Jimenez stated that the investigation determined that Minton would have been left at-risk

had he stayed at home because he was not making rational decisions. The intake sheet

from the investigation indicated that Minton had a mental illness. On cross-examination,

Jimenez explained that the mental illness listing on the report was not a medical diagnosis



                                            7
but that “mental illness” was listed on the document because the case investigators

determined that Minton was not making rational decisions.

       Beneficiaries provided medical records indicating that on May 11, 2010, APS

referred Minton to Dr. Jose Alfonso Lopez who assessed Minton with senile dementia. At

trial, Dr. Lopez testified that he did not have an independent recollection of Minton, but

his records indicated that he had a reasonable basis for assessing him with senile

dementia. Dr. Lopez stated that, “Dementia is the loss of mental capacity, the lack of

judgment, and basically that’s what dementia is.” On cross-examination, he testified that

the records indicated that Minton had completed a “Patient Self Determination Record”

which meant that someone at the hospital had deemed that Minton was competent to

execute the document. He testified that Minton had also completed other hospital forms

which were similar in effect to legally binding contracts.

       Further, Beneficiaries provided evidence that, on May 19, 2010, Dr. Iran Barrera

completed a mental health assessment of Minton, in which she concluded that Minton did

not have the mental or emotional capacity to care for himself. Additionally, Dr. David

Moron, the Beneficiaries’ retained expert, testified that after reviewing Minton’s records,

he determined that his conduct and symptoms were consistent with dementia. He further

explained that Minton did not have sound judgment or the ability to manage his financial

affairs in March of 2010. On cross-examination, Dr. Moron explained that dementia is not

an illness but a conglomeration of symptoms.

       In support of Minton’s capacity to contract, Garza testified that Minton was mentally

alert and had good judgment at the time he signed the contracts. He explained that on

March 25, 2010, he dialed First National’s phone number and handed the phone to



                                             8
Minton, who asked the bank to send representatives. Garza stated that he was present

when Minton signed the P.O.D documents. Further, Gail Cappadona, representative of

First National, and Brad Williams, First National Branch President, testified that they

brought the P.O.D. contracts to Minton’s house on March 25, 2010. They recounted that

Cappadona explained the P.O.D. contracts to Minton and that Minton understood what

he was doing when he executed them. Both believed that Minton was mentally competent

to enter into the contracts. Both also testified that they would not have allowed someone

who was not of sound mind to sign contracts.

       Marilia Luz, a health care provider who cared for Minton from February 22, 2010

through March 27, 2010, testified that she had a good relationship with Minton. She

testified that Minton called to inquire about Luz after she sustained injuries in a car crash

and was unable to work for a few days. She stated that, on March 25, 2010, she visited

Minton to inform him that she was fine. She testified that, on March 25, 2010, she had

an intelligent discussion about the car accident with Minton, and that Minton was familiar

with the location of the car accident and asked whether the other driver involved in the

accident had liability insurance. She testified that on that date, Minton had a good grasp

on reality and was mentally competent.

       Juan Martinez, a registered nurse at Briarcliff Nursing and Rehab Center

(Briarcliff), testified that he performed a mental competency assessment on Minton in

April 2010. He stated that based on his assessment, Minton was competent and oriented,

and that Minton was able to answer all of his questions. Martinez explained that after the

evaluation, he had a conversation with Minton that lasted between 45 minutes to an hour.

He stated that they discussed the cost breakdown of getting a room at Briarcliff and that



                                             9
Minton was very aware of his finances. Furthermore, Dr. Jetta Marie Brown, Garza’s

retained expert medical witness, testified that Minton was not suffering from dementia,

and that there was no basis to believe that Minton was mentally incompetent on March

25, 2010 when he signed the P.O.D. contracts.

       At the close of evidence, the jury rendered a finding that Minton lacked legal

capacity to enter into the P.O.D. contracts, and the trial court entered a final judgment on

November 2, 2011 ordering that the funds from Minton’s accounts and C.D.s were the

property of Minton’s estate. Garza filed a motion for new trial in which he argued that

there was legally and factually insufficient evidence to support the jury’s finding on

Minton’s capacity to contract and that the trial court erred by admitting medical records

and testimony concerning Minton’s mental capacity on dates other than March 25, 2010,

when he signed the P.O.D. contracts. The trial court denied his motion for new trial. This

appeal followed.

                        II.    LEGAL AND FACTUAL INSUFFICIENCY

        In his first issue, Garza contends that the evidence required impermissible

inferences by the jury and was therefore insufficient to support the jury’s finding that

Minton lacked capacity to contract when he signed the P.O.D. contracts on March 25,

2010. We disagree.

A.     Standard of Review & Applicable Law

       In reviewing the legal sufficiency of the evidence, we view the evidence in the light

most favorable to the fact finding, crediting favorable evidence if reasonable persons

could, and disregarding contrary evidence unless reasonable persons could not. City of

Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). We may not sustain a legal



                                            10
sufficiency or “no evidence” point unless the record demonstrates that: (1) there is a

complete absence of a vital fact; (2) the court is barred by the rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact; (3) the evidence to

prove a vital fact is no more than a scintilla; or (4) the evidence established conclusively

the opposite of the vital fact. Id. at 810.

       In reviewing the factual sufficiency of the evidence, we consider all of the evidence

presented by both parties, and will set aside the finding only if the evidence supporting

the finding is so weak or so against the overwhelming weight of the evidence that the

finding is clearly wrong and unjust. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402,

406–07 (Tex. 1998). As the fact finder, the jury is the sole judge of the credibility of the

witnesses and the weight to be given their testimony. Id.

       The burden of proof rests with the party seeking to set aside a contract for lack of

mental capacity. See Decker v. Decker, 192 S.W.3d 648, 652 (Tex. App.—Fort Worth

2006, no pet.). “The legal standards for determining the existence of mental capacity for

the purposes of executing a will or deed are substantially the same as the mental capacity

for executing a contract.” Bach v. Hudson, 596 S.W.2d 673, 675 (Tex. Civ. App.—Corpus

Christi 1980, no writ).

       To possess “mental capacity” to contract, Minton, at the time of contracting, must

have “appreciated the effect of what he was doing and understood the nature and

consequences of his acts and the business he was transacting.” See Mandell & Wright

v. Thomas, 441 S.W.2d 841, 845 (Tex. 1969); In re Estate of Robinson, 140 S.W.3d 782,

793 (Tex. App.—Corpus Christi 2004, pet. denied). Mental capacity, or lack thereof, may

be shown by “circumstantial evidence, including:        (1) a person's outward conduct,



                                              11
manifesting an inward and causing condition; (2) any pre-existing external circumstances

tending to produce a special mental condition; and (3) the prior or subsequent existence

of a mental condition from which a person's mental capacity (or incapacity) at the time in

question may be inferred.” In re Estate of Robinson, 140 S.W.3d at 788 (quotations

omitted). As a general rule, the question of whether a person, at the time of contracting,

knows or understands the nature and consequences of her actions is a question of fact

for the jury. Id. at 793−94.

B.     Trial Court’s Consideration of Evidence of Minton’s Mental Capacity Before
       and After Execution of the Contracts

       Garza first contends that the jury “was barred by law from giving weight” to

evidence of Minton’s mental competency prior to or after March 25, 2010, the date Minton

signed the P.O.D. contracts. Garza argues that even though the P.O.D. contracts were

not a will, the law from the Texas Supreme Court case Lee v. Lee, which related to a will

contest, is applicable. See Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968). Given that the

legal standard for determining testamentary capacity and capacity to contract are

substantially the same, we agree that this law is applicable. See Bach, 596 S.W.2d at

675−76.

       In Lee, the Texas Supreme Court determined that the proper inquiry in a will

contest on grounds of testamentary incapacity is the condition of the testator's mind on

the day the will was executed. Lee, 424 S.W.2d at 611. If there is no direct testimony of

acts, demeanor, or condition indicating that the testator lacked testamentary capacity on

the date of execution, “the testator's mental condition on that date may be determined

from lay opinion testimony based upon the witnesses’ observations of testator's conduct

either prior or subsequent to the execution.” Id. However, that evidence has probative

                                           12
force only if some evidence exists demonstrating that the condition persisted and had

some probability of being the same condition that existed at the time the will was made.

Id.

       Thus, to successfully challenge a testator's mental capacity with circumstantial

evidence from time periods other than the day on which the will was executed, the will

contestants must establish (1) that the evidence offered indicates a lack of testamentary

capacity; (2) that the evidence is probative of the testator's capacity (or lack thereof) on

the day the will was executed; and (3) that the evidence provided is of a satisfactory and

convincing character. See In re Estate of Graham, 69 S.W.3d 598, 606 (Tex. App.—

Corpus Christi 2001, no pet.); Horton v. Horton, 965 S.W.2d 78, 85 (Tex. App.—Fort

Worth 1998, no pet.).

       Garza argues that this case law indicates that the trial court was precluded from

considering evidence of Minton’s mental condition prior and subsequent to March 25,

2010 because Garza presented testimony that Minton was mentally competent at the time

the contracts were made.      However, the cases cited by Garza explicitly state that

evidence form other dates can be considered if there is no evidence that the testator

lacked legal capacity to contract on the date it was executed. In fact in Lee, the court

determined that it could consider evidence, despite the fact that there was no evidence

of capacity from the date the will was executed. Lee, 424 S.W.2d at 611. Moreover, in

In re Estate of Graham, in which this Court followed Lee, we considered both evidence of

testamentary capacity on the date a will was signed and before and after that date. See

In re Estate of Graham, 69 S.W.3d at 606. Garza cites no case precluding the jury from

considering or giving weight to evidence under any circumstance, much less solely



                                            13
because the party seeking to uphold the contract presents its own testimony of

competence. Accordingly, we hold that the jury was entitled to consider evidence of

Minton’s mental capacity prior and subsequent to the execution of the P.O.D. contracts if

the trial court could have considered it probative and relevant to his mental state on March

25, 2010. See id.; Lee, 424 S.W.2d at 611; Horton, 965 S.W.2d at 85. And as discussed

below, we determine that the jury could have found this evidence probative.

C.     Sufficiency of the Evidence

       Garza argues that “even if the evidence of Minton’s pre and post March 25, 2010

execution conduct are considered, [Beneficiaries] failed to prove Minton’s lack of mental

capacity on March 25, 2010.”      Beneficiaries presented evidence of Minton’s mental

incapacity showing that in the month of and the months before and after he signed the

P.O.D. contracts, Minton refused medical treatment even though he was bed-ridden and

needed it, that he spoke to people who were not there, that he sat for hours in his own

feces and urine, and that medical providers indicated that he was confused and senile.

They further provided evidence that on the day after he signed the P.O.D. contracts, he

was unable to sign himself into a hospital and that less than two months later he was

assessed with senile dementia. While this is evidence of Minton’s conduct and condition

prior and subsequent to March 25, the jury was entitled to infer that evidence of Minton’s

irrationality and dementia in the months preceding and following the signing of the

contract were probative of his capacity to contract on the date the contract was signed.

See In re Estate of Robinson, 140 S.W.3d at 788; In re Estate of Graham, 69 S.W.3d at

606. Beneficiaries also elicited testimony from their expert that Minton was mentally

incompetent in March 2010.



                                            14
       Moreover, while Garza elicited testimony from witnesses who claimed Minton was

competent on the date the contract was signed, it was the jury’s responsibility to judge

the credibility of the witnesses and determine the weight to be given their testimony. See

Maritime Overseas Corp., 971 S.W.2d at 406–07. Accordingly, we conclude that the

evidence supporting the jury’s finding that Minton lacked capacity to contract was not “so

against the overwhelming weight of the evidence that the finding is clearly wrong and

unjust,” see id., and the evidence was legally and factually sufficient to support the jury’s

finding. See id.; Wilson, 168 S.W.3d at 827. Garza’s evidentiary sufficiency issue is

overruled.

                              III.   ADMISSIBILITY OF EVIDENCE

       Garza contends that the trial court erred by admitting Beneficiaries’ “Exhibit 1,”

which consisted of over 1,200 business records concerning Minton and his health. We

disagree.

A.     Relevance and Materiality

       At trial, when Beneficiaries sought to admit “Exhibit 1,” Garza’s attorney objected,

stating that Beneficiaries’ attorney was “correct that they have complied with [rule] 803

with the filing of the affidavit; however, simply because a record meets the hearsay

requirement of 803 does not make it automatically admissible. It still has to meet the

other requirements of admissibility, those being, among other things, relevancy and

materiality.” See TEX. R. EVID. 803. Garza’s attorney further explained that several of the

documents in the exhibit related to occurrences after March 25 that should not have been

admitted “because if there’s a medical record indicating that something was wrong with

Mr. Minton, for instance, in August of 2010 or July 2010 or October of 2010, that does not



                                             15
in any way provide any indicia of what he was on March 25th of 2010.” He then argued

that under Lee, discussed above, this evidence was irrelevant because it did not concern

Minton’s mental state on the date he signed the contract. The trial court overruled Garza’s

objection and admitted “Exhibit 1.” Immediately after this, when Beneficiaries’ attorney

referred to the contents of the exhibit, Garza’s attorney stated generally, “Judge, I would

renew my objection on the basis of materiality, relevance and the records contain hearsay

statements, which should not be allowed.”

       On appeal, Garza first argues that the trial court abused its discretion by overruling

his relevance objection under Lee. See 424 S.W.2d at 611. However, we have explained

that Lee does not stand for the proposition that the jury is precluded from considering

mental incapacity evidence from dates prior or subsequent to the signing of a contract.

See id. And we have held that the evidence presented in this case relating to incidents

before and after March 25, were probative of Minton’s capacity to enter into the P.O.D.

contracts. Accordingly, Garza’s issue regarding his relevancy objection is overruled.

B.     Hearsay, Cumulative Evidence, and Best Evidence Objections

       Further, Garza argues, on appeal, that the trial court erred by admitting “Exhibit 1”

because its contents contained hearsay, were cumulative, and violated the best evidence

rule. In his brief, Garza refers to two other objections to “Exhibit 1” made later during trial,

one on hearsay grounds and the other on cumulative and best evidence grounds.

       However, Garza’s objection that one of the documents admitted as part of “Exhibit

1” contained hearsay was not sufficient to preserve error for our review because the entire

exhibit had already been admitted without a specific hearsay objection from Garza’s

attorney. See TEX. R. APP. P. 33.1. Garza’s attorney’s statement directly after the exhibit



                                              16
had been admitted that he was renewing his objection “on the basis of materiality,

relevance, and the records contain hearsay statements” did not specifically indicate which

statements in the over 1,200 business records in “exhibit 1” constituted hearsay and

therefore did not preserve the hearsay argument at the time the exhibit was admitted.

See id.

       Turning to Garza’s best evidence and cumulative evidence objections, during

Garza’s testimony at trial, Beneficiaries’ attorney questioned him regarding medical

documents in “Exhibit 1” that indicated that Minton was mentally incompetent. Garza’s

attorney objected on the grounds that the testimony was cumulative and the “medical

records were the best evidence of what the medical records indicate.” On appeal, Garza

argues that it was error for the court to overrule his objection. However, Beneficiaries’

counsel referenced the medical records to impeach Garza on his testimony that Minton

was mentally competent, not to provide further evidence of the contents of the medical

records. See TEX. R. EVID. 1002 (“To prove the content of a writing, recording, or

photograph, the original writing, recording, or photograph is required except as otherwise

provided in these rules or by law”). The testimony therefore was not cumulative and did

not violate the best evidence rule.

       Moreover, on appeal, Garza makes the conclusory statement that the trial court’s

errors “resulted in prejudice to [Garza] and caused the rendition of an improper judgment.”

See TEX. R. APP. P. 44.1. The evidence subject to Garza’s hearsay objections related to

a record of a phone conversation received by one of Minton’s medical providers. On

appeal, Garza does not recount the contents of the record of the conversation, nor does

he explain how its admission caused the rendition of an improper judgment. See id.



                                            17
38.1(i) (requiring an appellant’s brief to “contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record”).

Additionally, Garza does not explain how, and we do not find that, Beneficiaries’ attorney’s

reference to the medical records during Garza’s testimony probably caused the rendition

of an improper judgment. See id. 44.1. We therefore conclude that any error resulting

from the admission of evidence that was hearsay, cumulative, or a violation of the best

evidence rule, was not harmful. See id.

C.     Trial Court’s Alleged Failure to Properly Examine “Exhibit 1”

        Garza also alleges that “the trial court abused its discretion in allowing

[Beneficiaries ] to introduce over 1,200 documents . . . (1) without first hearing any

evidence concerning the contents of the records, or the [sic] how such records related to

the issues in the case; (2) without conducting any examination of the contents of the

records; (3) without determining whether there were any hearsay statements in the

records; and (4) simply relying on statements of counsel to answer the issues raised in 1,

2 and 3 above.” Garza, in his brief, however, cites no law requiring the trial court to follow

any of these procedures before admitting evidence.           See TEX. R. APP. P. 38.1(i).

Moreover, Garza did not preserve this argument because he failed to object to the trial

court’s failure to follow the procedures Garza now claims were required before admitting

it. See id. 33.1.

       For the foregoing reasons, Garza’s issue regarding the improper admission of

evidence is overruled.




                                             18
                          IV.    SUBJECT-MATTER JURISDICTION

       Garza argues that the trial court did not possess subject-matter jurisdiction over

Beneficiaries’ claims and application for temporary injunction. Garza first argues that only

a representative of an estate has capacity to sue to recover estate property and that

therefore Randall Minton, as independent administrator, was the only party with capacity

to sue. See Shepherd v. Ledford, 962 S.W.2d 28, 31 (Tex. 1998). However, regardless

of whether the heirs had capacity to sue or were properly listed as plaintiffs, we cannot

reverse or alter the declaratory judgment on capacity grounds because Randall Minton,

as administrator of the estate, had capacity to sue for the declaratory relief, see id., and

the judgment specifically declared the funds to be the property of the estate. See TEX. R.

APP. P. 25.1(c).

       Additionally, Garza’s claim regarding the trial court’s jurisdiction to issue the

temporary injunction is not properly before us because Garza is not currently appealing

from the temporary injunction. Moreover, the temporary injunction enjoined Garza from

spending funds received from the P.O.D. accounts. Because the trial court has now

declared that the funds are part of Minton’s estate, any argument regarding error in the

injunction is now moot. City of Corpus Christi v. Cartwright, 281 S.W.2d 343, 344 (Tex.

Civ. App.—San Antonio 1955, no writ).

       Garza also contends that the trial court did not have jurisdiction to declare the

P.O.D. contracts void because the contracts were nontestamentary transfers and were

therefore not subject to provisions of the probate code. See TEX. PROB. CODE ANN. § 441

(West Supp. 2011). We agree that the sections of the probate code, applicable at the

time Beneficiaries’ suit was filed, show that P.O.D. contracts are nontestamentary



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transfers and not subject to the provisions of the probate code. See id. However, Garza

has cited no authority supporting the proposition that because provisions of the probate

code do not apply, the probate court lacks subject-matter jurisdiction. See TEX. R. APP.

P. 38.1(i). Moreover, here, the probate court was determining whether the funds were

part of the estate and therefore was deciding a matter “related to a probate proceeding,”

over which a probate court has jurisdiction. See TEX. PROB. CODE ANN. § 4F (West Supp.

2011).

         Accordingly, Garza’s subject-matter jurisdiction issue is overruled.

                                 V.      GARZA’S REMAINING ISSUES

         Garza argues that the trial court erred because a declaratory judgment was an

improper remedy under these circumstances and because Beneficiaries failed to request

a jury question or provide evidence regarding whether Minton disaffirmed the contracts,

failed to plead rescission, and failed to provide evidence that they lacked an adequate

remedy at law. We disagree.3

         Texas law authorizes courts to enter declaratory judgments to determine questions

of the construction and validity of a contract. TEX. CIV. PRAC. & REM. CODE ANN. §

37.004(a) (West 2008).          This court has affirmed multiple judgments declaring that

contracts entered into by parties that subsequently passed away were void without

determining that the party seeking the judgment needed to plead rescission or provide

evidence that the contract was disaffirmed. See In re Estate of Robinson, 140 S.W.3d at

788; see also Korenek v. Korenek, No. 13-07-00111-CV, 2008 WL 2894906, at **4−5


         3 Beneficiaries contend that Garza waived all of these arguments by not asserting them to the trial

court. It is undisputed that Garza failed to make any objection or argument regarding these issues to the
trial court. Rather, on appeal, Garza argues that he was not required to raise any of these issues to
preserve error. We assume without deciding that error is preserved for our review.

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(Tex. App.—Corpus Christi July 29, 2008, no pet.) (mem. op.). Moreover, in Gober v.

Davis, the Waco Court of Appeals determined that the trial court was not required to enter

a finding that an annuity agreement was rescinded to hold that the beneficiary designation

on the agreement was void. No. 10-06-00043-CV, 2007 WL 1147353, at *3 (Tex. App.—

Waco Apr. 18, 2007, no pet.) (mem. op.). We agree with the Waco Court of Appeals and

determine that Beneficiaries did not have to plead rescission to be entitled to a declaratory

judgment that the P.O.D. designations were void. See id. Because we have determined

that the trial court did not grant the equitable remedy of rescission, Garza’s argument that

Beneficiaries were required to establish that they had no adequate remedy at law also

fails.4 See Patterson v. Wizowaty, 505 S.W.2d 425, 428 (Tex. Civ. App.—Houston [14th

Dist.] 1974, no writ).

        Garza also argues that Beneficiaries were required and failed to show that Minton

took active steps to disaffirm the contract. See Missouri Pac. Ry. Co. v. Brazil, 10 S.W.

403, 406 (1888) (determining that a voidable contract can be ratified if it is not

disaffirmed). Garza, however, directs us to no law requiring a party to show disaffirmance

to be entitled to the rescission of, or a declaratory judgment that, a P.O.D. contract

entered into by a party, now deceased, is void. See TEX. R. APP. P. 38.1(i). Moreover,

Garza cites no law indicating that, as Minton’s heirs, Beneficiaries could not disaffirm the

P.O.D. contract by filing a lawsuit to declare them void. See Breaux v. Allied Bank of

Texas, 699 S.W.2d 599, 604 (Tex. App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.)


        4  Moreover, we are not persuaded by Garza’s argument that Beneficiaries had an adequate remedy
at law because they could have filed a suit for conversion. See Patterson v. Wizowaty, 505 S.W.2d 425,
428 (Tex. Civ. App.—Houston [14th Dist.] 1974, no writ) (reasoning that “a basic corollary to the equitable
right of rescission is the principle that rescission is not ordinarily available if an action for damages at law
provides an adequate remedy”). Specifically, Garza does not explain how Beneficiaries, without having the
P.O.D. designations declared void, could have alleged that a defendant wrongfully exercised dominion or
control over the estate’s property. See Green Int’l v. Solis, 951 S.W.2d 384, 391 (Tex. 1997).

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(holding that temporary guardians disaffirmed a contract with an attorney when they filed

an “Opposition to Application For Attorney's Fees” with the court). Accordingly, we

conclude that Beneficiaries were not required to provide evidence or request a jury

question regarding whether Minton disaffirmed the contracts.

      For the foregoing reasons, we overrule Garza’s remaining issues.

                                    VI.       CONCLUSION

      We affirm the trial court’s judgment.

                                                   ____________________
                                                   ROGELIO VALDEZ
                                                   Chief Justice

Delivered and filed the
30th day of January, 2014.




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