                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 BRUCE WHEATLEY, in his capacity as
 Executor of the Estate of Judith T.              §
 Wheatley,                                                       No. 08-18-00106-CV
                                                  §
                Appellant/Cross-Appellee,                           Appeal from the
                                                  §
 v.                                                               Probate Court No. 1
                                                  §
 DALE FARLEY, in his capacity as                               of El Paso County, Texas
 Dependent Administrator of the Estate of         §
 Travis B. Kirchner,                                            (TC# 2014-CPR01539)
                                                  §
                Appellee/Cross-Appellant.



                                    DISSENTING OPINION

       I dissent in part, and join in part, my colleagues’ opinion. There are a great many questions

about Travis Kirchner’s actions between the Fall of 2011 and his eventual death. Perhaps that is

inevitable when the principal actor in this case—Travis—spent his final days behind prison walls.

Nor did it help that Judy passed away before the case went to trial. But we take appellate records

as we find them, and I conclude the trial court did not err in granting a directed verdict on the

validity of the deeds given the lack of evidence on delivery. I fully agree with the majority opinion
on the lack of factually sufficient evidence to support the amount of the services rendered claim.

       The majority ably sets out the facts which I need not repeat here. The majority opinion

also correctly states that a deed must be delivered to be valid. TEX. PROP. CODE ANN. § 5.021. The

majority then relies on the rebuttable presumption that an executed deed found in the possession

of the grantee was in fact delivered. See, e.g., Bell v. Smith, 532 S.W.2d 680, 685 (Tex.App.--Fort

Worth 1976, no writ); Chandler v. Hartt, 467 S.W.2d 629, 633 (Tex.App.--Tyler 1971, writ ref’d

n.r.e.). This presumption, however, is rebuttable. Chandler, 467 S.W.2d at 633. Once Farley

comes forward with contrary evidence, the presumption disappears, and the case rises or falls on

the remaining evidence. As this Court wrote:

       A rebuttable presumption “shift[s] the burden of producing evidence to the party
       against whom it operates.” Lide v. Lide, 116 S.W.3d 147, 152 (Tex.App.--El Paso
       2003, no pet); In the Interest of Rodriguez, 940 S.W.2d 265, 271 (Tex.App.--San
       Antonio 1997, writ denied), citing General Motors Corp. v. Saenz, 873 S.W.2d 353,
       359 (Tex. 1993). Once that burden is discharged and evidence contradicting the
       presumption has been offered, the presumption disappears and is not weighed or
       treated as evidence. General Motors Corp., 873 S.W.2d at 359. The evidence is
       then evaluated as it would be in any other case, and the presumption has no effect
       on the burden of persuasion.

Long v. Long, 234 S.W.3d 34, 37 (Tex.App.--El Paso 2007, pet denied). A rebuttable presumption

does not shift the ultimate burden of proof. See Garza v. Mission, 684 S.W.2d 148, 152 (Tex. App.

--Corpus Christi 1984, writ dism’d w.o.j.); see also Gen. Motors Corp. v. Saenz, 873 S.W.2d 353,

359 (Tex. 1993).

       I would agree with the majority that the mere fact that no witness testified to delivery of

the deeds does not rebut the presumption, nor would the non-recording of the deed. See Foster v.

Cumbie, 315 S.W.2d 151 (Tex.App.--Dallas 1958, writ ref’d n.r.e.). I part ways with the majority

over two other pieces of evidence that Farley offered. First, the fact that Travis took affirmative

actions to sell the property, and then specifically devise the property in a new will after the deeds

were executed would indicate that he did not intend to actually transfer the property upon his
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execution of the deeds. And more significant, Judy was informed that she was disinherited of

ownership of the property in Travis’s last will. She was upset by that turn of events, but never

expressed to Farley, who saw her often, that she was already the owner of the property. Logically,

if she had been given the deeds, she would have mentioned that to Farley in the face of a conflicting

claim of ownership. Collectively, this evidence effectively rebuts any “presumption” of delivery,

particularly when all we know is that the deeds were found somewhere in the house where Judy

lived, and after her possessions became comingled with Travis’s possessions.

       Once the presumption disappears, the remaining evidence is governed by the “equal

inference” rule. Under that rule, “a jury may not reasonably infer an ultimate fact from ‘meager

circumstantial evidence which could give rise to any number of inferences, none more probable

than another.’” Hancock v. Variyam, 400 S.W.3d 59, 70–71 (Tex. 2013), quoting Hammerly Oaks,

Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997); see also City of Keller v. Wilson, 168 S.W.3d

802, 813 (Tex. 2005) (“When the circumstances are equally consistent with either of two facts,

neither fact may be inferred.”); Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001) (Phillips, C.J.,

concurring in part and dissenting in part) (noting that the equal inference rule is a species of the

no-evidence rule that “when the circumstantial evidence is so slight that any plausible inference is

purely a guess, it is in legal effect no evidence”).

       The deeds found in Judy’s abode could have been in her papers. Or, they could have been

part of Travis’s papers, that became part of her papers when his house was cleaned out. Bruce

Wheatley, the person who actually found the deeds and gave them to Farley, did not testify at the

trial, so there is no basis to say the deeds were found in what might have been Judy’s papers, as

distinct from what might been Travis’s papers (assuming there was any basis to distinguish the

two). Given these equal and opposite possibilities, no interference of delivery can be made from



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the trial record, and I conclude the trial court did not err in granting the directed verdict.



                                                JEFF ALLEY, Chief Justice
August 5, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.




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