                                                                                             ACCEPTED
                                                                                         06-15-00030-CV
                                                                              SIXTH COURT OF APPEALS
                                                                                    TEXARKANA, TEXAS
                                                                                    12/2/2015 2:57:36 PM
                                                                                        DEBBIE AUTREY
                                                                                                  CLERK


                           NO. 06-15-00030-CV
                                                                   FILED IN
                                                           6th COURT OF APPEALS
______________________________________________________________________________
                                                            TEXARKANA, TEXAS
                                                          12/2/2015 2:57:36 PM
        IN THE SIXTH DISTRICT COURT OF                 APPEALS      AT
                                                             DEBBIE AUTREY
                    TEXARKANA, TEXAS                              Clerk

______________________________________________________________________________

                                 LETA YORK
                                                                        Appellant,
                                      v.

                               TODD BOATMAN

                                                                      Appellee.
______________________________________________________________________________


            ON APPEAL FROM THE 62ND JUDICIAL DISTRICT COURT,
                          HOPKINS COUNTY, TEXAS
         CAUSE NO. CV 414000, THE HONORABLE WILL BIARD, PRESIDING

______________________________________________________________________________


                             APPELLEE’S BRIEF

______________________________________________________________________________


                                                Larry A. Powers
                                                Powers & Blount
                                                P.O. Box 877
                                                Sulphur Springs, Tx 75483

                                                ATTORNEY FOR APPELLEE




APPELLEE’S BRIEF                       i                             . 06-15-00030-CV
                       IDENTITY OF PARTIES AND COUNSEL


Appellant/Plaintiff                                       Appellee/Defendant

Leta York                                                 Todd Boatman


                            Trial and Appellate Counsel

Phil Smith                                                Larry A. Powers
300 Oak Ave.                                              P.O. Box 877
Sulphur Springs, Tx 75482                                 Sulphur Springs, Tx 75483
903.439.3000                                              903.885.6506
903.439.3110 (fax)                                        903.885.1199 (fax)
Psmith300@hotmail.com                                     pb4us@yahoo.com




APPELLEE’S BRIEF                         ii                              . 06-15-00030-CV
                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL…………………………………………..                 ii

TABLE OF CONTENTS………………………………………………………………                        iii

INDEX OF AUTHORITIES……………………………………………………………                       iv

   I.      STATEMENT OF FACTS……..………………………………………….                 1

   II.     SUMMARY OF ARGUMENT…………………………………………….                   3

   III.    REPLY ARGUMENT POINT ONE….……………………………………                4

   IV.     REPLY ARGUMENT POINT TWO…..…………………………………..              6

   V.      REPLY ARGUMENT POINT THREE…...………………………………..            7

   VI.     CONCLUSION……………………………………………………………..                     9

   VII.    PRAYER……………………………………………………………………                        9

   VIII.   CERTIFICATE OF SERVICE……………………………………………..             10




APPELLEE’S BRIEF                iii                  . 06-15-00030-CV
                                INDEX OF AUTHORITIES

                                                                                       PAGE

Burgess v. Easley, 893 S.W.2d 87 (Tex App – Dallas 1994, no writ)                             5

Davis v. Zeanon, 111 S.W.2d 772 (Tex Civ. App – Waco 1937, writ ref’d)                        4

Geldard v. Watson, 214 S.W.3d 202, 207 (Tex. App-Texarkana 2007, no pet.)                     4

Hand v. Evrington, 242 S.W. 722 (Tex. Com. App 1922, opinion adopted) …….                    9

Hughes v. Wright, 127 S.W.2d 215, 218 (Tex. Civ. App. – Waco 1939, no writ)                   8

Landram v. Robertson, 195 S.W.2d 170 (Tex. Civ. App. – San Antonio 1946, writ ref’d n.r.e.) 9

Richardson v. Laney, 911 S.W.2d 489 (Tex. App. – Texarkana 1995, no pet.) .                   5

Woodworth v. Cortz, 660 S.W.2d 561 (Tex. App. – San Antonio 1983, writ ref’d n.r.e.)         4




                                 RULES AND STATUTES

Tex. Civ. Prac. & Rem. Code-Section 16.051                                                    8

Tex. Civ. Prac. & Rem. Code-Section 16.025                                                    8

Tex. Civ. Prac. & Rem. Code-Section 16.026                                                    8




APPELLEE’S BRIEF                              iv                                . 06-15-00030-CV
                                   STATEMENT OF FACTS

       This is a declaratory action, not a trespass to title action, brought by Appellant to declare

void a deed given by Appellant to her daughter, Gwendolyn Boatman to 153.185 aces in

Hopkins County, Texas. In the alternative, Appellant seeks to impose a constructive trust on

153.185 acres for the benefit of Appellant.

       The trial Court granted judgment in favor of Appellee, who is the grandson of Appellant

and the son of Gwendolyn Boatman, of holding that legal title to the 153.185 acres vested in

Appellee subject to an equitable life estate in Appellant to 4 acres of land upon which Appellant

resides.

       In 1967, Appellant and her husband Henry York were conveyed a life estate in 4 acres

which is a part of the 153.185 acres, by Appellant’s parents, W. L. Smith and Donnie Smith.

Gwendolyn Boatman is named as the remainderman, in fee simple.

       In 1985 after the death of her parents, Appellant received a partition deed to 153.185

acres conveying fee simple title to Appellant. There were no reservation or exception contained

in this deed. The 153.185 acres included the 4 acres mentioned above.

       By general warranty deed dated August 10, 1995, Appellant conveyed the 153.185 acres

to her daughter, Gwendolyn Boatman. The conveyance was subject to the homestead/life estate

interest of Henry A. York who did not join in the deed. Henry York died on August 22, 1995,

thereby extinguishing his homestead/life estate interest.

       Shortly after the death of Henry A. York, Gwendolyn Boatman informed Appellant that

she claimed ownership of the 153.185 acres by reason of the August 10, 1995 deed and refused

Appellant’s request to convey the 153.185 acres to Appellant.




APPELLEE’S BRIEF                                 1                                   . 06-15-00030-CV
       After the date of the August 10, 1995, Gwendolyn Boatman exercised all the right of title

and ownership to the 153.185 acres up until the time of her death.             Gwendolyn Boatman

occupied the property, paid the ad valorem taxes on the property, claimed a homestead

exemption on the property and utilized the property in her cattle operation.

       In 2004 and 2005 Gwendolyn Boatman again informed Appellant, that she claimed

ownership of the 153.185 acres and Appellant took no action to dispute this claim.

       Gwendolyn Boatman died on April 22, 2012 leaving a will naming Appellee as the sole

beneficiary of her estate which included the 153.185 acres. Gwendolyn Boatman’s will was

admitted to probate on June 12, 2012.




APPELLEE’S BRIEF                                 2                                   . 06-15-00030-CV
                                SUMMARY OF ARGUMENT

REPLY TO POINT ONE - The 1995 Deed from Appellant to Gwendolyn Boatman was clear on

its face as a conveyance of Appellant’s present interest in the 153.185 acres. There were no

restrictions or exception in the 1995 Deed evidencing that any of Appellant’s interest were to

take place in the future.



REPLY TO POINT TWO – The record clearly supports the Court’s Finding of Facts and

Conclusions of Law.



REPLY TO POINT THREE – Gwendolyn Boatman, Appellee’s predecessor in interest clearly

repudiated any trust/agreement both verbally in 1995 and in the subsequent interpleader litigation

in 2004 – 2005.




APPELLEE’S BRIEF                                3                                   . 06-15-00030-CV
   REPLY TO APPELLANS POINT ONE

   •   Appellant argues that the 1995 Deed from Appellant to Gwendolyn Boatman was not

       valid because it was not a gift of a present interest, due to the fact that the 1995 Deed

       failed to exclude the prior life estate interest or the homestead interest of Appellant’s

       husband, Henry A. York.

       The 1995 Deed is clear on its face that Appellant was conveying her fee simple title in

       the 153.185 acres to Gwendolyn Boatman. There are no reservations or exceptions noted

       in the Deed.

          At the time of the 1995 Deed, Appellant owned the full fee simple title to 153.185

       acres. Appellant was free to convey fee simple title to Gwendolyn Boatman subject to

       the life estate and homestead interest of her husband. The 1995 Deed was a clear

       conveyance of the present interest of Appellant. There is no indication in the 1995 Deed

       that Appellant was not conveying all of her present right title and interest in the 153.185

       acres, or that there was any of Appellant’s interest which would take place in the future.

       Davis v. Zeanon, 111 S.W.2d 772 (Tex. Civ. App. – Waco 1937, writ ref’d); Woodworth

       v. Cortz 660 S.W.2d 561 (Tex. App. – San Antonio 1983, writ ref’d n.r.e.)

          The life estate and homestead interest of Appellant’s husband were extinguished upon

       his death on August 22, 1995, some twelve (12) days after the conveyance. Geldard v.

       Watson 214 S.W.3d 202, 207 (Tex. App-Texarkana 2007,no pet.).

   •   Appellant argues that there was no donative intent on her part since the purpose of the

       conveyance was to “protect the property from government” in the event her husband

       received government benefits subject to reimbursement from Appellant’s property.

       Assuming that this scheme is true, in order for Appellant to accomplish this goal it was



APPELLEE’S BRIEF                                4                                  . 06-15-00030-CV
       necessary for her to make a valid conveyance to Gwendolyn Boatman. That is Appellant

       had to intend the conveyance as a gift of Appellant’s interest to her daughter, Gwendolyn

       Boatman. The evidence on the purpose of the conveyance is at best unclear. It was

       incumbent on Appellant to prove by clear and convincing evidence the lack of donative

       intent Richardson v. Laney, 911 S.W.2d 489 (Tex. App. – Texarkana 1995,no pet.). The

       Court as the trier of fact did not find Appellant lack donative intent with regard to the

       1995 Deed or that it was not to take effect upon execution and delivery to Gwendolyn

       Boatman. The trial found that the August, 1995 Deed was valid. (Clerk’s file p 223)

       What is clear, is that Appellant intended to divest herself of title to the 153.185 acres by

       reason of the 1995 Deed. Burgess v. Easley 893 S.W. 2d 87 (Tex App – Dallas 1994, no

       writ)

   •   Appellant argues that the 1995 Deed was ineffective because Gwendolyn Boatman did

       not take immediate possession of the 153.185 acres. Gwendolyn Boatman accepted and

       recorded the 1995 Deed. The Court as the trier of fact found that Gwendolyn Boatman

       had exercised all of the rights of title and ownership since the 1995 Deed until her death.

       (Clerk’s file p. 223). As noted above Gwendolyn Boatman occupied the 153.185 acres,

       paid the ad valorem taxes on the 153.185 acres, claimed a homestead exemption to the

       153.185 acres and utilized the 153.185 acres in her cattle operation.   (RR2 p. 224 Ln 12

       to p. 225 Ln 2; p. 226 Ln 10 – 18; p. 231 Ln 12 to p. 232 Ln 16; RR3 Ex. 19 p. 218; Ex.

       20 p. 219 – 229; Ex. 21 p. 235 Ln 25 to p. 236 Ln 9)

   •   Regardless of whether the 1995 Deed was a gift or for some other purpose, it was

       incumbent on Appellant to overcome the 1995 Deed which was clear on its face as a




APPELLEE’S BRIEF                                5                                   . 06-15-00030-CV
       conveyance of the 153.185 acres. The Court as the trier of fact was unconvinced by

       Appellant’s testimony and evidence as to Appellants other purposes or intentions.




APPELLEE’S BRIEF                               6                                  . 06-15-00030-CV
       REPLY TO APPELLANS POINT TWO

   •   Appellant argues that there is not evidence or insufficient evidence as follows:

       Finding of Fact #3

       The record reflects that Henry A. York died on August 22, 1995, according to

       Appellant’s Affidavit. (Clerk’s file page 161)

   •   Finding of Fact #4 & 5

       The recitation in the Court’s Finding of Fact and Conclusion of Law regarding the

       August 1995 deed is an obvious clerical error stating the date of the 1995 Deed to be

       August 8, 1995 rather than August 10, 1995. The parties agree the 1995 Deed was

       August 10, 1995, and the evidence supports this fact.

   •   Finding of Fact #6

       Shortly after the death of Gwendolyn Boatman, Appellee occupied the 153.185 acres as

       his homestead, made improvements to the 153.185 acres and utilized the 153.185 acres

       for his cattle operation. (RR2 p. 218 Ln 19 to p. 219 Ln 1; p. 221, Ln 21to p. 222 Ln 5; p.

       224 Ln 24 to p. 225 Ln 2; p. 247 Ln 17)(RR3 Ex. 20 p. 237 – 229)




APPELLEE’S BRIEF                                7                                   . 06-15-00030-CV
       REPLY TO APPELLANS POINT THREE

          Appellant argues that the 1995 Deed if valid, was intended to be held by Gwendolyn

Boatman in trust for her benefit. Even if this position is assumed to be correct, there was a clear

repudiation of the trust/agreement by Gwendolyn Boatman in 1995 and again in 2004 – 2005.

   •   In Appellant’s deposition she admitted that Gwendolyn Boatman had refused to deed the

       153.185 acres back to Appellant, shortly after the death of her husband on August 22,

       1995. (RR 3 – Ex. 21 p. 231 Ln 21 to p. 232 Ln 5). Further Appellant testified that she

       did not know what the handwritten notes meaning was with regard to the 1995 Deed.

   •   In 2004 Appellant attempted to recover a gift Deed to the 153.185 acres through her

       attorney, Lanny Ramsay.       Gwendolyn Boatman had executed and delivered to her

       attorney Jay Garrett the gift Deed which was held in escrow and never delivered.

       Gwendolyn Boatman was at the time of the gift Deed facing surgery for breast cancer and

       a divorce proceeding and the clear intention of Gwendolyn Boatman was the gift Deed

       would only take effect if she did not survive her breast cancer treatments. Gwendolyn

       Boatman repudiated the gift Deed and requested its return to her. Gwendolyn Boatman

       further filed a recession of the gift Deed with the Hopkins County Clerk. Subsequently,

       Jay Garret filed an interpleader action placing the gift Deed in the registry of the Court.

       The Court ordered the gift Deed be returned to Gwendolyn Boatman (RR3 – Ex 9 – 16 p.

       186 - 199)

       The foregoing is clear repudiation of Appellant’s claim that the 153.185 was held by

       Gwendolyn Boatman for the benefit of Appellant. On neither occasion in 1995 or 2005

       did Appellant take any action to recover title to the 153.185 acres, in spite of the clear

       repudiation of any trust/agreement.     It was only after Gwendolyn Boatman’s death in



APPELLEE’S BRIEF                                 8                                   . 06-15-00030-CV
       2012, that Appellant filed this lawsuit some eighteen (18) years after she had conveyed

       the 153.185 acres to Gwendolyn Boatman.

              Clearly, Appellant was on notice that Gwendolyn Boatman was claiming title to

       the 153.185 acres regardless of any alleged agreement to reconvey the 153.185 acres to

       Appellant (RR3 – Exs 9 – 16; 21)

              Appellant’s cause of action for the imposition of a constructive trust are barred by

       the applicable statutes of limitation. Section 16.051 Tex. Civ. Prac. & Rem. Code;

       Section 16.025 Tex. Civ. Prac. Rem. Code and Section 16.026 Tex. Civ. Prac. Rem. Code

       Hughes v. Wright 127 S.W.2d 215, 218 (Tex. Civ. App. – Waco 1939, no writ); Landram

       v. Robertson 195 S.W.2d 170 (Tex. Civ. App. – San Antonio 1946, writ ref’d n.r.e.) and

       Hand v. Evrington 242 S.W. 722 (Tex. Com. App 1922, opinion adopted)




APPELLEE’S BRIEF                               9                                   . 06-15-00030-CV
                                             CONCLUSION

   WHEREFORE, Premises Considered, Appellee prays:

   •   The 1995 conveyance was valid regardless of the Appellant’s intent.

   •   The evidence clearly supports the Court’s Findings of Fact and Conclusions of Law.

   •   The corroborative witnesses of Appellant were not credible

   •   Appellant’s cause of action for a constructive trust were barred by the statute of

       limitations.

                                                 PRAYER

              Appellee, requests that this Court affirm the ruling of the trial court. Appellee

       requests all other relief to which it may be entitled.

                                              Respectfully submitted,

                                              Powers & Blount, LLP

                                              By: /s/Larry A. Powers
                                              Larry A. Powers
                                              Texas Bar No. 16218500
                                              P.O. Box 877
                                              200 Jackson St.
                                              Sulphur Springs, Tx 75483
                                              Tel. (903) 885-6506
                                              Fax. (903) 885-1199
                                              Email: pb4us@yahoo.com
                                              Attorney for Appellee




APPELLEE’S BRIEF                                 10                              . 06-15-00030-CV
                                 CERTIFICATION OF SERVICE

        I hereby certify that a true and correct copy of the foregoing Appellee’s Brief was served
on Phil Smith, 300 Oak Ave., Sulphur Springs, Texas 75482, counsel of record for Appellant in
the above entitled and numbered cause this the 2nd day of December, 2015, in the following
manner:

_____ Via Facsimile

_____ Via Certified Mail, Return Receipt Requested _________________

  X    Via First Class Mail

_____ Via Hand Delivery

  X    Via E-mail psmith300@hotmail.com


                                                      /s/Larry A. Powers
                                                     _______________________________
                                                      LARRY A. POWERS




APPELLEE’S BRIEF                                11                                   . 06-15-00030-CV
