AFFIRM; and Opinion Filed June 20, 2016.




                                       S    In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                    No. 05-15-00610-CV

                      DONALD L. WISE, JR., Appellant
                                  V.
           VONDA LEA MITCHELL, INDEPENDENT EXECUTOR OF THE
                ESTATE OF MARIE CAROLINE WISE, Appellee

                          On Appeal from the Probate Court No. 2
                                   Dallas County, Texas
                           Trial Court Cause No. PR-14-03556-2

                            MEMORANDUM OPINION
                        Before Justices Francis, Fillmore, and Schenck
                                 Opinion by Justice Fillmore
       On January 9, 2012, Donald L. Wise, Jr. filed in the public records of Dallas County a

December 25, 2011 Special Warranty Deed with Retained Life Estate (the Deed), in which Marie

Caroline Wise (the decedent) conveyed title to property located at 1228 Perry Street in Irving,

Texas (the property), to Wise, subject to certain restrictions in the conveyance. Vonda Lea

Mitchell, pursuant to a June 9, 1998 General Durable Power of Attorney (the Power of Attorney)

that appointed her as the decedent’s agent and attorney in fact, filed a Revocation of Gift to

Remainder Beneficiary (the Revocation) in the public records of Dallas County on July 5, 2013,

which, among other things, purported to revoke the Deed.      Following the decedent’s death,

Mitchell, as independent executor of the decedent’s estate (the Estate), moved for partial
summary judgment to cancel the Deed, quiet title to the property in the Estate, and remove any

cloud from the property caused by the Deed. The trial court granted Mitchell’s motion.

           In five points of error, Wise contends the trial court erred by granting summary judgment

because, pursuant to the probate code and the 2006 Uniform Power of Attorney Act (the

UPOAA), the Power of Attorney did not delegate to Mitchell the authority to set aside a deed to

real property; there were issues of fact about when the Power of Attorney was executed; the

Power of Attorney was not filed in the public records of Dallas County; and the Deed conveyed a

present interest in the property to him and could not be revoked. In three additional points of

error, Wise contends the trial court erred by striking the majority of Wise’s affidavit filed in

support of his response to Mitchell’s motion for partial summary judgment; considering evidence

at the hearing on Mitchell’s motion for partial summary judgment that was not in the record and

had not been produced to Wise twenty-one days before the hearing; and engaging in an ex parte

conversation with Mitchell’s attorney regarding issues in the case. We affirm the trial court’s

judgment.

                                                               Background

           In 2001, Wise began living with his grandmother, the decedent, who owned the property.

On January 9, 2012, Wise filed the Deed in the public records of Dallas County pursuant to

which the decedent conveyed to him, 1 subject to certain reservations and exceptions, title to the

property. The Deed identified the decedent as the “Grantor” and Wise as the “Beneficiary,” and

set out the following “Reservations from Conveyance”:

           Grantor reserves for Grantor and Grantor’s assigns a legal life estate in the
           property for Grantor’s life, without liability for waste. Grantor further reserves
           the full power and authority, without the joinder of any other person, to sell,
           convey, mortgage, lease, and otherwise dispose of the property in fee simple with
           or without consideration and without joinder by Beneficiary, to any person or

   1
       Mitchell contends the Deed was forged; however, that issue is not before us in this appeal.



                                                                      –2–
       persons whatsoever, and to keep absolutely any and all proceeds derived
       therefrom. Further, Grantor reserves the right to appoint different or additional
       remainder owners (Beneficiaries), at any time and from time to time without
       consent of Beneficiary. Upon the death of Grantor, subject to any interests that
       may be created by Grantor under the powers reserved herein, full record title shall
       vest in Beneficiary.

       In 2012, the decedent moved into a nursing home. Mitchell, who was appointed as the

decedent’s agent and attorney in fact under the Power of Attorney, entered into a contract to sell

the property. After learning of the Deed, Mitchell, based on her authority under the Power of

Attorney, executed the Revocation on July 3, 2013. In the Revocation, Mitchell (1) declared the

Deed to be void ab initio; (2) revoked the Deed in its entirety as well as the remainder interest

conveyed to Wise; and (3) alternatively, if the revocation was not effective, appointed herself,

Genevia Guthrie, Linda Schmidt, and Kea MacPherson, the decedent’s remaining children, to be

the “remainder owners” under the Deed instead of Wise. On July 5, 2013, Mitchell filed the

Revocation, with a copy of the Power of Attorney attached as an exhibit, in the public records of

Dallas County.

       On July 23, 2013, Mitchell initiated a guardianship proceeding by filing a combined

application to be appointed the decedent’s guardian and to sell the property. Mitchell’s stated

purpose in selling the property was to obtain funds to pay costs of the decedent’s care. On

December 16, 2013, the trial court found the decedent was an incapacitated person and appointed

Mitchell to be the decedent’s guardian. After qualifying to be the decedent’s guardian by taking

the required oath and posting bond, Mitchell filed an inventory, which included the property, an

appraisment, and a list of claims.

       The trial court indicated it would not approve the sale of the property until Wise had been

personally served. Wise was served with citation and appeared in the guardianship proceeding

on March 7, 2014. Mitchell then sought summary judgment in the guardianship proceeding as to

the ownership of the property on grounds the Deed was testamentary and did not grant Wise a
                                               –3–
present interest in the property; the decedent revoked the Deed; the decedent removed Wise as a

remainder owner/beneficiary under the Deed; and the Deed expressly reserved to the decedent

the right to sell the property and, subject to the trial court’s permission, Mitchell, as guardian,

could exercise that right on behalf of the decedent. In both the application and the motion for

summary judgment in the guardianship proceeding, Mitchell represented the Deed had been

revoked on July 3, 2013, when she, acting as the decedent’s agent and attorney in fact pursuant

to the Power of Attorney, signed the Revocation.

       The decedent died on April 7, 2014, before the trial court ruled on Mitchell’s motion for

summary judgment in the guardianship proceeding. On April 28, 2014, Mitchell was appointed

independent executor of the Estate and, on behalf of the Estate, filed this adversarial proceeding

against Wise on May 2, 2014. In her first amended petition, Mitchell requested a declaratory

judgment quieting title to the property in the Estate, removing any cloud on the title caused by

the Deed, and cancelling the Deed; asserted claims against Wise based on forgery, trespass, and

forcible detainer; and requested attorneys’ fees. In connection with the forcible detainer claim,

Mitchell requested a writ of possession to the property.

       Mitchell filed a motion for partial summary judgment as to ownership of the property on

grounds the Deed was testamentary in character and did not grant Wise a present interest in the

property; the decedent revoked the Deed before her death; the decedent’s guardian ratified and

confirmed the revocation; and alternatively, the decedent removed Wise as a beneficiary under

the Deed. Mitchell’s summary judgment evidence included her affidavit, the Deed, the Power of

Attorney, the Revocation, and the application and motion for summary judgment filed by

Mitchell in the guardianship proceeding. Wise responded to the motion for partial summary

judgment, relying on his own affidavit. The trial court heard the motion for partial summary




                                               –4–
judgment on August 29, 2014, and on September 9, 2014, granted the motion without specifying

the bases of its ruling.

            On September 18, 2014, Mitchell filed a motion to sever the “real-property claims,”

which she defined as her claims for a declaratory judgment cancelling the Deed and quieting title

to the property in the Estate and a writ of forcible detainer evicting Wise from the property, from

the “remaining causes of action,” which she defined as her claims for forgery, trespass, and

attorney’s fees and Wise’s counterclaims for libel and attorneys’ fees. 2 On October 3, 2014,

Wise filed a notice of appeal and, on October 6, 2014, the trial court signed an order, severing

Mitchell’s requests for a declaratory judgment and a writ of possession into a separate cause of

action.

            Mitchell submitted a proposed final judgment in the severed cause of action.                                                    On

November 6, 2012, during the hearing on Mitchell’s proposed judgment, the trial court stated it

was unclear about whether it had granted summary judgment on Mitchell’s forcible detainer

cause of action. That same day, the trial court sua sponte determined Mitchell had not pleaded a

forcible detainer cause of action and signed an amended order (1) setting aside the September 9,

2014 order granting summary judgment, (2) finding there was no genuine issue of material fact

that the Deed was testamentary and did not convey a present interest in the property to Wise or

that the Deed was validly revoked by Mitchell acting as the decedent’s attorney in fact, 3 and (3)

granting Mitchell summary judgment on her request for a declaration that the Estate “own[ed]

the property free and clear of the cloud on the title, if any, caused by the Deed.” The trial court

denied the motion for partial summary judgment to the extent it requested a declaratory judgment

cancelling the Deed on the ground the motion did not state the basis for cancelling the deed and

     2
         Wise’s counterclaims are not included in the record on appeal.
     3
       Based on these findings, the trial court determined the issues of whether Mitchell, as the decedent’s guardian, ratified and confirmed the
revocation of the Deed or, alternatively, removed Wise as a beneficiary under the Deed were immaterial.



                                                                          –5–
on Mitchell’s request to evict Wise from the property because her petition did not include a suit

for forcible detainer. The trial court also signed an amended order for severance, severing

Mitchell’s request for a declaratory judgment quieting title to the property from the remaining

claims in the case and determining Mitchell had not pleaded a claim for forcible detainer that

could be severed.

       At the trial court’s request, Mitchell’s counsel prepared a final judgment reflecting the

trial court’s November 6, 2014 rulings and took it, along with the first amended petition that

contained the forcible detainer cause of action, to the trial court’s administrator. The trial court

requested that Mitchell’s counsel come into chambers and contacted Wise’s counsel on the

telephone. After a short discussion, Wise’s counsel requested a formal hearing. On November

7, 2014, Mitchell filed a motion to reconsider the trial court’s November 6, 2014 orders,

directing the trial court to those sections of her first amended petition in which she asserted a

forcible detainer cause of action and requesting that Wise be evicted from the property.

       On November 17, 2014, the trial court granted Mitchell’s motion to reconsider, set aside

the November 6, 2014 amended orders granting partial summary judgment and severance, and

reinstated the September 9, 2014 order granting partial summary judgment and the October 6,

2014 order severing both the declaratory judgment and forcible detainer claims. On November

21, 2014, the trial court signed a final judgment in the severed cause of action, cancelling the

Deed and removing any cloud on the property caused by the Deed, quieting title to the property

in the Estate, awarding possession of the property to the Estate, and ordering Wise to vacate the

property within six days.

       Wise filed a motion to set aside the order of reconsideration on November 25, 2014, and

a motion for new trial on December 19, 2014. On December 31, 2014, the trial court set aside

the final judgment. It also granted Mitchell’s motion for partial summary judgment, and ordered

                                                –6–
the Deed was cancelled, the cloud on the property caused by the Deed was removed, and fee

simple title to the property was quieted in the Estate. Mitchell nonsuited her forcible detainer

cause of action on January 15, 2015. Wise filed a motion for new trial on February 2, 2015, and

a notice of appeal on April 2, 2015. The trial court denied Wise’s motion for new trial on April

13, 2015.

                                                               Jurisdiction

           After reviewing the clerk’s record filed by Wise, 4 we instructed the parties to file briefs

addressing how this Court has jurisdiction over this appeal. Based on the parties’ jurisdictional

briefs and a supplemental clerk’s record, this Court informed the parties that it appeared (1) the

trial court’s September 9, 2014 order granting Mitchell’s motion for partial summary judgment

became final when the trial court signed the severance order on October 6, 2014, and the trial

court lost plenary power over that order on November 5, 2014, thirty days after it became final,

and (2) we had jurisdiction over this appeal based on Wise’s October 3, 2014 notice of appeal

from the September 9, 2014 order granting Mitchell’s motion for partial summary judgment.

           Generally, the severance of an interlocutory judgment into a separate cause of action

makes it final. Diversified Fin. Sys., Inc. v. Hill, Heard, O’Neal, Gilstrap & Goetz, P.C., 63

S.W.3d 795, 795 (Tex. 2001) (per curiam.). However, if the severance order contemplates

additional proceedings will occur in the severed matter, the interlocutory judgment does not

become final until those events have occurred. Id.; Martinez v. Humble Sand & Gravel, Inc., 875

S.W.2d 311, 313–14 (Tex. 1994) (severance order permitting additional defendants to be added

to severed action was interlocutory). In this case, the October 6, 2014 order of severance

provided that “separate judgments” would be entered in “each of the severed causes, each

judgment to be final and to dispose completely of all of the issues between the parties in each

   4
       There have since been four supplemental clerk’s records filed by the parties.



                                                                      –7–
respective suit.” Further, the order granting partial summary judgment contained none of the

declarations sought by Mitchell in her motion. Because the order of severance contemplated a

final judgment would be entered in the severed cause of action and the order granting partial

summary judgment did not set out all the relief requested by Mitchell, the October 6, 2014

severance did not cause the September 9, 2014 order granting partial summary judgment to

become final. See Diversified Fin. Sys., Inc., 63 S.W.3d at 795. Rather, the partial summary

judgment signed by the trial court on December 31, 2014, became final when Mitchell nonsuited

her claim for forcible detainer on January 15, 2015. See Lehmann v. Har-Con Corp., 39 S.W.3d

191, 200 (Tex. 2001) (order determining final claim causes judgment to become final). Wise

filed a motion for new trial on February 2, 2015, extending his time to file a notice of appeal

until April 15, 2015. See TEX. R. APP. P. 26.1(a)(1). Wise filed a timely notice of appeal on

April 2, 2015.

          We, therefore, conclude the December 31, 2014 partial summary judgment is the final

judgment in the severed cause of action, and we have jurisdiction over that judgment based on

Wise’s April 2, 2015 notice of appeal.

                           Trial Court’s Consideration of Information at Hearing

          In his fourth point of error, Wise asserts this case must be reversed because the trial court

considered “evidence” in a notebook provided by Mitchell’s counsel to the trial court, but not to

Wise’s counsel, at the hearing on Mitchell’s motion for partial summary judgment. During his

argument on Mitchell’s motion for partial summary judgment, Mitchell’s counsel referred to tabs

in a notebook he had provided to the trial court. 5 After Mitchell’s counsel had referred to the

notebook a number of times, Wise’s counsel objected to the use of the notebook because he had


     5
        This notebook is not in the record. Although not all the information contained in the notebook is described in the record, what is
identified consisted of pleadings, case law, and statutes.



                                                                  –8–
not seen it. The trial court instructed the parties to meet in the hallway so that Wise could

examine the notebook while the trial court conducted hearings in other cases. The trial court

instructed Wise’s counsel that it wanted to be informed before counsel left the courthouse

whether there were any objections to the trial court using the notebook in reaching its decision.

Wise’s counsel reviewed the notebook, but did not make any objections to its contents.

             To preserve a complaint for appellant review, a party generally must present it to the trial

court by timely request, objection, or motion stating the specific grounds, and obtain a ruling.

TEX. R. APP. P. 33.1(a); Nguyen v. Allstate Ins. Co., 404 S.W.3d 770, 785 (Tex. App.—Dallas

2013, pet. denied). Although instructed by the trial court to raise any objections he had to the

contents of the notebook before he left the courthouse on the day of the summary judgment

hearing, Wise’s counsel failed to do so. Accordingly, this issue is not preserved for our review.

See TEX. R. APP. P. 33.1(a); Nguyen, 404 S.W.3d at 785. We resolve Wise’s fourth point of error

against him.

                                                    Striking Portions of Affidavit

             Mitchell objected to eight statements in Wise’s affidavit, addressing each statement

separately and raising multiple objections to each statement. These objections included that the

statements were hearsay, violated rule of evidence 601(b), 6 were conclusory, were speculative or

constituted an unsupported factual conclusion, were not based on Wise’s personal knowledge, or

expressed a legal opinion that Wise was not qualified to give. 7 The trial court considered the

objections to each statement in the affidavit at the hearing on Mitchell’s motion for partial

summary judgment, sustained Mitchell’s objections to seven of the statements without stating the

bases for its rulings, and struck the statements from Wise’s affidavit.

     6
      Rule of evidence 601, known as the “Dead Man’s Rule,” applies in certain circumstances to prohibit testimony about an oral statement
made by a testator, intestate, or ward. See TEX. R. EVID. 601.
     7
         Mitchell did not raise all of these objections as to each complained-of statement.



                                                                         –9–
         In his fifth point of error, Wise contends the trial court erred by striking portions of his

affidavit because “the affidavit was based on personal knowledge of [Wise], was not hearsay or

innuendo, and was supported by the facts,” and although the affidavit may have contained

conclusions or subjective beliefs, the trial court should have considered “the evidence properly

raised to defeat summary judgment.” Wise did not address in his brief the applicability of rule of

evidence 601, which was raised by Mitchell as to five of the statements that were struck by the

trial court, or whether the statements constituted an improper legal opinion, an objection Mitchell

made to the remaining two statements struck by the trial court. “[W]hen an appellee urges

several objections to a particular piece of evidence and, on appeal, the appellant complains of its

exclusion on only one of those bases, the appellant has waived that issue for appeal because he

has not challenged all possible grounds for the trial court’s ruling.” Cantu v. Horany, 195

S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.); see also Vodicka v. N. Am. Title Co., No.

05-13-00126-CV, 2014 WL 348530, at *3 (Tex. App.—Dallas Jan. 30, 2014, no pet.) (mem.

op.). By failing to challenge all possible bases on which the trial court could have sustained

Mitchell’s objections to the seven statements struck from his affidavit, Wise has failed to

preserve this issue for our review. We resolve Wise’s fifth point of error against him.

                                               Summary Judgment

         In his first, second, and sixth through eighth points of error, Wise argues the trial court

erred by granting Mitchell’s motion for partial summary judgment because, pursuant to the

probate code and the UPOAA, 8 the Power of Attorney did not give Mitchell the authority to

revoke the Deed; the Deed granted Wise a present interest in the property and could not be




    8
        UNIF. POWER OF ATTORNEY ACT, (Nat’l Conference of Comm’rs on                         Uniform   State   Laws   2006),
www.uniformlaws.org/shared/docs/power%20of%20attorney/UPOAA_2011_Final%20Act_2014sep9.pdf.



                                                          –10–
revoked; the Power of Attorney was not filed in the public records; and the date of the execution

of the Power of Attorney was “unclear.”

                                         Standard of Review

       We review the grant of a summary judgment de novo. Masterson v. Diocese of Nw. Tex.,

422 S.W.3d 594, 607 (Tex. 2013), cert. denied, 135 S. Ct. 435 (2014). A party moving for

traditional summary judgment has the burden of establishing that no genuine issue of material

fact exists and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). In reviewing the grant of a

traditional summary judgment, we consider all the evidence in the light most favorable to the

non-movant. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848

(Tex. 2009). We credit evidence favorable to the nonmovant if a reasonable fact-finder could,

and we disregard evidence contrary to the nonmovant unless a reasonable fact-finder could not.

Id.

                                         Date of Execution

       In his sixth point of error, Wise’s entire argument is:

       The power of attorney used by [Mitchell] to set aside the deed was dated 1996,
       but that date was scratched out on the jurat and 1998 was written over the original
       date, creating a significant question when the power of attorney was executed.

An appellant’s brief must concisely state all issues or points presented for review and, among

other things, must contain a clear concise argument for the contentions made, with appropriate

citations to authorities and to the record. TEX. R. APP. P. 38.1(i). We may not speculate as to the

substance of the specific issues asserted by an appellant and may not make a party’s argument

for him. Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet.

denied); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). An

appellant’s failure to cite legal authority or provide substantive analysis of a legal issue results in

                                                –11–
waiver of the complaint. Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284

(Tex. 1994) (observing that error may be waived by inadequate briefing); Huey v. Huey, 200

S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.). We conclude Wise has presented nothing

for our review regarding the date of execution of the Power of Attorney and resolve his sixth

point of error against him.

                                                     Filing of Power of Attorney

           In his seventh point of error, Wise asserts the trial court erred by granting summary

judgment because section 751.151 of the estates code required the Power of Attorney to be filed

in the public records of Dallas County prior to the Revocation. The estates code, which became

effective January 1, 2014, was intended by the Legislature, in part, to be a non-substantive

revision of provisions of the probate code relating to durable powers of attorney. Act of May 19,

2011, 82d Leg., R.S., ch. 823, § 1.01, 2011 Tex. Gen. Laws 1901, 1901. Section 751.151 of the

estates code is the recodification of section 489 of the probate code. Id. at 1906. Section 489 of

the probate code, the applicable law at the time Mitchell filed the Revocation, provided:

           A durable power of attorney for a real property transaction requiring the execution
           and delivery of an instrument that is to be recorded, including a release,
           assignment, satisfaction, mortgage, security agreement, deed of trust,
           encumbrance, deed of conveyance, oil, gas, or other mineral lease, memorandum
           of a lease, lien, or other claim or right to real property, shall be recorded in the
           office of the county clerk of the county in which the property is located.

Act of Mar. 25, 1993, 73d Leg. R.S., ch. 49, § 1, 1993 Tex. Gen. Laws 102, 103; see also Act of

May 19, 2011, 82d Leg., R.S., ch. 823, § 1.01, 2011 Tex. Gen. Laws 1901, 1906. 9

           An unrecorded durable power of attorney does not give an agent the authority to engage,

on behalf of the principal, in a real property transaction requiring the execution and delivery of



     9
        Effective September 1, 2015, the Legislature amended section 751.151 of the estates code to provide a durable power of attorney was
required to be recorded “not later than the 30th day after the date the instrument is filed for recording.” Act of May 26, 2015, 84th Leg., R.S., ch.
808, § 1, 2015 Tex. Gen. Laws. 2449, 2449 (codified at TEX. EST. CODE ANN. § 751.151 (West Supp. 2015)).



                                                                      –12–
an instrument to be recorded in the public records of the county where the real property is

located. Montenegro v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561, 568–69 (Tex. App.—

Amarillo 2013, pet. denied). However, the statutory language at the time the decedent executed

the Power of Attorney and at the time Mitchell executed the Revocation, did not require that the

durable power of attorney be filed before the real property transaction or that the durable power

of attorney and the instrument relating to the real property transaction be filed in any particular

order. See Act of Mar. 25, 1993, 73d Leg. R.S., ch. 49, § 1, 1993 Tex. Gen. Laws 102, 103; see

also Act of May 19, 2011, 82d Leg., R.S., ch. 823, § 1.01, 2011 Tex. Gen. Laws 1901, 1906.

Mitchell filed the Power of Attorney in the public records of Dallas County at the same time she

filed the Revocation and, therefore, complied with the statute. We resolve Wise’s seventh point

of error against him.

                                                         Power to Revoke Deed

           In his first and second points of error, Wise contends the trial court erred by granting

Mitchell’s motion for partial summary judgment because the Power of Attorney did not give

Mitchell the authority to revoke the Deed 10 and, in his eighth point of error, asserts the Deed

conveyed a present interest in the property to him, was not testamentary, and could not be

revoked. The Power of Attorney states:

           That I, Marie Caroline Wise of 1228 Perry Road, Irving, Texas do hereby appoint
           Vonda Lea Mitchell, my agent and attorney in fact for me and in my name to
           perform any and all acts in my stead and to do and perform all such other matters
           as may be necessary and expedient for the purpose of carrying out the objects
           above mentioned; and hereby ratify and confirm all that my said agent may do in
           said premises. The power of attorney shall not be affected by subsequent
           disability or incapacity of the principal. It is the express intent of Marie Caroline
           Wise that this Power of Attorney shall continue notwithstanding the death or
           incapacity of Marie Caroline Wise.

     10
        Wise also argues the Power of Attorney did not give Mitchell the power to change the beneficiaries designated in the Deed. However,
while the trial court declared the Deed was properly revoked and quieted title to the property in the Estate, it did not make any ruling pertaining to
Mitchell’s ability to change the beneficiaries designated in the Deed.



                                                                       –13–
            Wise argues, in his second point of error, that pursuant to the UPOAA, an agent under a

power of attorney may create or change rights of survivorship or a beneficiary designation only

if the power of attorney expressly grants that authority, and the Power of Attorney contained no

such express delegation. 11                   The probate code, the applicable law at the time the decedent

executed the Power of Attorney, was patterned after the Uniform Probate Code (the UPC).

Stegall v. Oadra, 868 S.W.2d 290, 293 (Tex. 1993). In 1979, the National Conference of

Commissioners on Uniform State Laws (the National Conference) approved the Uniform

Durable Power of Attorney Act (UDPOA), 12 which was substantively identical to sections 5-501

through 5-505 of the UPC. 13 In 1993, Texas adopted the UDPOA. See TEX. EST. CODE ANN.,

SUBTITLE P, Durable Powers of Attorney, Table of Jurisdictions Wherein Act Has Been Adopted

(West 2014). In 2006, the National Conference approved the UPOAA. However, Texas has

adopted neither the UPOAA nor the provision relied upon by Wise. Accordingly, section 201(a)

of the UPPOA does not control whether the Power of Attorney gave Mitchell the authority to

revoke the Deed. We resolve Wise’s second point of error against him.


    11
         Section 201(a) of the UPPOA provides:
            An agent under a power of attorney may do the following on behalf of the principal or with the principal’s property only if
            the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by
            another agreement or instrument to which the authority or property is subject:
            (1) create, amend, revoke, or terminate an inter vivos trust;
            (2) make a gift;
            (3) create or change rights of survivorship;
            (4) create or change a beneficiary designation;
            (5) delegate authority granted under the power of attorney;
            (6) waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a
            retirement plan; [or]
            (7) exercise fiduciary powers that the principal has authority to delegate[; or
            (8) disclaim property, including a power of appointment].
www.uniformlaws.org/shared/docs/power%20of%20attorney/UPOAA_2011_Final%20Act_2014sep9.pdf.
    12
        UNIF. DURABLE POWER OF ATTORNEY ACT (Nat’l Conference of Comm’rs on Unif. State Laws,                                             1979),
www.uniformlaws.org/Shared/Docs/Durable%20Power%20of%20Attorney/UDPAA%201979%20with%201987%20Amendments.pdf.
    13
         Id. at p.3.



                                                                       –14–
          In his first point of error, Wise argues the Power of Attorney failed to comply with

sections 491 and 492 of the probate code because it failed to specifically confer on Mitchell

authority to act for the decedent in real estate transactions. 14 However, sections 491 and 492 of

the probate code related to a statutory durable power of attorney. The Power of Attorney is not

in the prescribed form for a statutory durable power of attorney. See Act of Mar. 25, 1993, 73d

Leg., R.S., ch. 49, § 1, 1993 Tex. Gen. Laws 102, 103–05 (now codified at TEX. EST. CODE ANN.

§ 752.051 (West 2014)).                 Rather, at the time the Power of Attorney was executed, it was

governed by sections 481 through 489 of the probate code as a non-statutory durable power of

attorney. 15 Accordingly, the requirements for statutory durable powers of attorney contained in

sections 491 and 492 of the probate code did not apply to the powers delegated to Mitchell by the

non-statutory Power of Attorney.

          Wise also asserts in his first point of error that the Power of Attorney did not specifically

give Mitchell the right to void the Deed or sell real property and did not specifically list any

“objects above mentioned” for which Mitchell was authorized to act for the decedent and,

therefore, was too vague to convey to Mitchell the right to revoke the Deed. The language of a

power of attorney determines the extent of the authority conveyed to the agent. Armstrong v.

Roberts, 211 S.W.3d 867, 869 (Tex. App.—El Paso 2006, pet. denied). We construe a power of

attorney as a whole in order to ascertain the parties’ intentions and rights. In re Estate of Miller,

446 S.W.3d 445, 455 (Tex. App.—Tyler 2014, no pet.). In determining the limits of an agent’s

authority, the meaning of general words in the power of attorney are restricted by the context in

which they are used. Gouldy v. Metcalf, 75 Tex. 455, 458, 12 S.W. 830, 831 (1889); In re Estate


     14
        Sections 491 and 492 of the probate code have been recodified as sections 752.101 and 752.102 of the estates code. See Act of May 19,
2011, 82d Leg., R.S., ch. 823, §1.01, 2011 Tex. Gen. Laws 1901, 1909–10.
     15
       Non-statutory durable powers of attorney are currently addressed in sections 751.001 through 751.151 of the estates code. See Act of
May 19, 2011, 82d Leg., R.S., ch. 823, §1.01, 2011 Tex. Gen. Laws 1901, 1901–06.



                                                                  –15–
of Miller, 446 S.W.3d at 455. Further, the authority granted by the power of attorney is strictly

construed, so as to exclude the exercise of any power that is not warranted either by the actual

terms used, or as a necessary means of executing the authority with effect. Gouldy, 75 Tex. at

458, 12 S.W. at 831; In re Estate of Miller, 446 S.W.3d at 455.

       The Power of Attorney authorized Mitchell to “perform any and all acts in my stead and

to do and perform all such other matters as may be necessary and expedient for the purpose of

carrying out the objects above mentioned.” The decedent placed no restrictions on the acts that

Mitchell could take as her agent. “Where an instrument is free from qualifying features either on

its face or from the evidence, the agent has unlimited power to act in complete substitution for

any act which the principal might himself do if present and acting.” Armstrong, 211 S.W.3d at

870. We conclude the Power of Attorney was not vague and authorized Mitchell to perform

“any and all acts” on behalf of the decedent, including revoking the Deed. See Veatch v. Gilmer,

111 S.W. 746, 747 (Tex. Civ. App. 1908), (power of attorney authorizing agent to “do any

lawful act for and in my name as if I were present” granted power to convey principal’s land),

aff’d as modified by Gilmer’s Estate v. Veatch, 102 Tex. 384, 117 S.W. 430 (1909); Dockstader

v. Brown, 204 S.W.2d 352, 354–55 (Tex. Civ. App.—Fort Worth 1947, writ ref’d n.r.e.). We

resolve Wise’s first point of error against him.

                                        Revocation of Deed

       In his eighth point of error, Wise asserts the trial court erred by granting Mitchell’s

motion for partial summary judgment because there was a material issue of fact as to whether the

decedent intended to grant to him a present interest in the property that was not subject to

revocation. When, as in this case, a deed is unambiguous, its construction is a question of law

for the court. Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991). In construing an unambiguous

deed, our primary inquiry is ascertaining the true intent of the parties from the language in the

                                                   –16–
deed. Id.; Terrell v. Graham, 576 S.W.2d 610, 612 (Tex. 1979). To ascertain the parties’ intent,

we must strive to harmonize all parts of the deed, even if different parts of the deed appear

contradictory or inconsistent. Luckel, 819 S.W.2d at 462. We presume the parties intended

every clause of a deed to have some effect. Id.

          An instrument is testamentary in nature if the testator intended it to make a revocable

disposition of property to take effect on his death. Irvin v. Smith, 497 S.W.2d 796, 799 (Tex.

Civ. App.—Beaumont 1973, no writ). A testamentary document does not vest a present interest,

but becomes operative only after the death of the maker. Id. A deed that does not operate, and

was not intended to operate, as a present transfer of the property out of the donor, or to vest a

present interest in the donee, but takes effect only after the death of the donor, is testamentary in

character. Id.; Eckert v. Stewart, 207 S.W. 317, 321–22 (Tex. Civ. App.—Amarillo 1918, writ

ref’d) (when grantor in deed reserves control of deed or right to dispose of property during

lifetime, such control renders instrument testamentary in character, with right of revocation in

grantor); see also Unsell v. Fed. Land Bank of Houston, 138 S.W.2d 305, 309 (Tex. Civ. App.—

Texarkana 1940, writ dism’d by agr.). 16

          In this case, the Deed conveyed the property to Wise, subject not only to a life estate in

favor of the decedent but also to the decedent’s rights to sell, convey, mortgage, lease, or

otherwise dispose of the property in fee simple with or without consideration and without joinder

by Wise; to keep all proceeds derived from any sale; and to appoint different or additional

remainder owners without Wise’s consent. The express retention of the power to control and

convey the property indicates the decedent did not intend to immediately convey the property to

Wise. See Wren v. Coffey, 26 S.W. 142, 143–44 (Tex. Civ. App. 1894, no writ) (express


     16
       The 84th Texas Legislature enacted the Texas Real Property Transfer on Death Act, which became effective September 1, 2015. See
TEX. EST. CODE ANN. §§ 114.051–.057 (West Supp. 2015). Due to the timing of its enactment, this statute has no impact on this case.



                                                               –17–
retention in conveyance of power of alienation during lifetime is, in effect, declaration of

intention that conveyance “should not have the effect to divest title out of the makers, and invest

it in the son, during the lifetime of such makers”); Sontag v. Cadena, No. 04-12-00203-CV, 2013

WL 2122059, at *4 (Tex. App.—San Antonio May 15, 2013, no pet.) (mem. op.) (assignment of

note and deed of trust not valid gift because grantor, in assignment, retained ownership of

property until ten days following his death). We conclude the Deed was testamentary in nature

and vested no interest in Wise prior to the decedent’s death. Therefore, the Deed was subject to

revocation by Mitchell acting as the decedent’s agent under the Power of Attorney. We resolve

Wise’s eighth point of error against him.

                                   Ex Parte Communication

       In his third point of error, Wise contends that, without notice to his attorney, Mitchell’s

attorney engaged in ex parte communications with the trial court in an attempt to convince it to

change its November 6, 2014 amended orders on summary judgment and severance. A judgment

may be reversed on appeal only if the trial court made an error that probably caused the rendition

of an improper judgment or probably prevented the appellant from presenting the case on appeal.

TEX. R. APP. P. 44.1(a)(1). Wise has failed to demonstrate the alleged ex parte communication

harmed him in any way. See id.; Ford Motor Co. v. Castillo, 279 S.W.3d 656, 667 (Tex. 2009)

(complaining party has burden to show harm on appeal). Rather, he argues only that Mitchell’s

counsel’s conduct was “intentional and a ‘flouting’ of the law.” Wise does not cite authority

supporting the proposition that, assuming Mitchell’s counsel engaged in an ex parte

communication with the trial court, the existence of the communication alone sufficiently

demonstrates it probably caused the rendition of an improper judgment. Accordingly, Wise has

failed to meet his burden of showing any harm from the communication. See TEX. R. APP. P.




                                              –18–
38.1(i); Guniganti v. C&S Components Co., Ltd., 467 S.W.3d 661, 666 (Tex. App.—Houston

[14th Dist.] 2015, no pet.). We resolve Wise’s third point of error against him.

                                           Conclusion

       We conclude the trial court did not err by granting summary judgment cancelling the

Deed, quieting title to the property in Estate, and removing any cloud from the property caused

by the Deed. Accordingly, we affirm the trial court’s judgment.




                                                   /Robert M. Fillmore/
                                                   ROBERT M. FILLMORE
                                                   JUSTICE


150610F.P05




                                              –19–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

DONALD L. WISE, Appellant                              On Appeal from the Probate Court No. 2,
                                                       Dallas County, Texas,
No. 05-15-00610-CV         V.                          Trial Court Cause No. PR-14-03556-2.
                                                       Opinion delivered by Justice Fillmore,
VONDA LEA MITCHELL,                                    Justices Francis and Schenck participating.
INDEPENDENT EXECUTOR OF THE
ESTATE OF MARIE CAROLINE WISE,
Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Vonda Lea Mitchell, Independent Executor of the Estate
of Marie Caroline Wise, recover her costs of this appeal from appellant Donald L. Wise, Jr.


Judgment entered this 20th day of June, 2016.




                                                –20–
