Frank Evans v. Greg Abbott, Attorney General of the State of Texas ( 2003 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00719-CV
Frank Evans, Appellant
v.
Greg Abbott, Attorney General of the State of Texas, Appellee
FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
NO. 2300, HONORABLE GUY S. HERMAN, JUDGE PRESIDING
MEMORANDUM OPINION
In 1999, the Austin Independent School District (“AISD”) filed a petition for
condemnation of land belonging to E. and Hettie Evans, as trustees for “The St. Johns Church of
God in Christ #2.” AISD named appellant Frank Evans, E. Evans’s brother, as a party with possible
interest in the property. An attorney ad litem was appointed to represent the interests of appellant
Frank Evans, the other named possible heirs, and all unknown heirs. In November 1999, a hearing
was held before three special commissioners, and they found that the condemned property was worth
$73,000, and awarded that sum to “E. and Hettie Evans, Trustees,” as well as appellant and several
other parties. AISD deposited $73,000 with the trial court in December 1999.
In January 2000, Norris McDonald filed an affidavit stating he was “Bishop of the
Church of God in Jesus Name f/k/a St. John’s Church of God in Christ #2.” McDonald stated that
he had been friends with E. and Hettie Evans for about thirty years, and that they granted him a life
estate in the property. McDonald stated that since 1994 he had spent about $15,000 and had done
substantial work making the property suitable for use as a church. He sought to withdraw from the
deposited funds the present-day value of his life estate and the sums he spent on the property. In
March 2000, the trial court found that “the presence of a potential charitable trust” required that the
Attorney General be given notice and an opportunity to investigate, and ordered the attorney ad litem
to notify the Attorney General of the proceeding.
In July 2000, the Attorney General filed a petition in intervention, and in February
2001 moved to remove the attorney ad litem and to dismiss the claims of McDonald and other
alleged heirs. The Attorney General attached as exhibits a 1975 warranty deed conveying the
property from M.L. McGee to “E. Evans and Hettie Evans, for the St. Johns Church of God in Christ
#2,” and a copy of the records from the Travis County Appraisal District showing the “St Johns
Church of God in Christ #2” as the owner of the property. The Attorney General sought to have the
funds distributed to the Church of God in Christ, Second Ecclesiastical Southeast Jurisdiction of
Texas. Appellant then filed his first pleadings in this cause, objecting to the Attorney General’s
motion and asserting a right to the deposited funds. The trial court ordered the bulk of the funds
distributed to the Church of God in Christ, as requested by the Attorney General, awarded McDonald
about $9,000 but denied his claim of a life estate, and denied appellant’s and all other purported
heirs’ claims against the condemnation proceeds. Appellant then filed his notice of appeal.1
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AISD was initially an appellee in this cause, but this Court granted AISD’s motion to be
dismissed as an appellee because appellant does not appeal from AISD’s condemnation of the
property, but from the distribution of the condemnation funds.
2
On appeal, appellant contends first that the Attorney General’s petition in intervention
was untimely and therefore should have been denied, and second that the trial court’s order
distributing the funds and denying appellant’s claims is based on insufficient evidence.2
In his first issue on appeal, appellant contends that the Attorney General’s
intervention was untimely. A party may intervene if he could have brought the action, or a part
thereof, on his own. See Tex. R. Civ. P. 60. An intervenor need not secure permission to intervene;
a party who opposes the intervention has the burden to challenge it by a motion to strike. Guarantee
Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990) (op. on reh’g). A
party may intervene any time before the final decision on the merits. In re Estate of York, 951
S.W.2d 122, 125 (Tex. App.—Corpus Christi 1997, no pet.); Litoff v. Jackson, 742 S.W.2d 788, 789
2
The Attorney General urges us to dismiss this appeal for want of jurisdiction without regard
to the merits, contending that it did not receive notice of appellant’s notice of appeal; however,
appellant’s certificate of service recites that he sent a copy of the notice to the Attorney General, and
the rules do not mandate any particular form of service to be used when sending all parties copies
of the notice of appeal. See Tex. R. App. P. 25.1(e). The Attorney General further complains that
the appellate record was filed more than one year after it was due. However, deadlines for filing
records are not jurisdictional. We overrule the Attorney General’s contention that this Court lacks
jurisdiction over appellant’s appeal.
We next note that although it is apparent that appellant, who is pro se, has attempted to
comply with the briefing rules, his brief is inadequate under those rules. See id. 38.1. To avoid
giving pro se litigants an unfair advantage over litigants represented by counsel, pro se litigants
generally are held to the same standards that apply to licensed attorneys. See Mansfield State Bank
v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Chandler v. Chandler, 991 S.W.2d 367, 378-79 (Tex.
App.—El Paso 1999, pet. denied). Appellant’s brief states his issues and attempts to present
argument and authorities, but does not adequately present his argument or cite to the record as to the
timeliness of the intervention, and does not present any argument or authority for his second issue,
attacking the sufficiency of the evidence. Despite the inadequacies of appellant’s brief and certain
procedural irregularities, in the interest of justice, we will consider the merits of his issues. See Tex.
R. App. P. 38.9 (briefing rules to be construed liberally).
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(Tex. App.—San Antonio 1987, no writ) (citing Smalley v. Taylor, 33 Tex. 668, 669 (1871); Delley
v. Unknown Stockholders of Brotherly & Sisterly Club of Christ, Inc., 509 S.W.2d 709, 717 (Tex.
Civ. App.—Tyler 1974, writ ref’d n.r.e.)).
The Attorney General filed his petition in intervention in July 2000, about eight
months after the Special Commissioners filed their award and about seven months after the funds
were deposited by AISD. In his petition, the Attorney General recites that he received notice of the
condemnation proceeding in March 2000, when the attorney ad litem, acting pursuant to an order
signed by the trial court, sent the Attorney General notice. See Tex. Prop. Code Ann. § 123.003
(West Supp. 2003). In March 2000, shortly after the Attorney General received notice of the
proceeding, he informed the district clerk that he was investigating to determine whether he should
participate and asked to be informed of any hearings. Appellant did not move to strike the Attorney
General’s intervention, nor did any other party. Appellant raised no complaint as to the Attorney
General’s involvement until the Attorney General filed a motion to distribute the funds, at which
time appellant claimed a right to the deposited funds, essentially objecting to the Attorney General’s
proposed distribution, not to the intervention. Even if appellant had objected to the intervention,
“[w]hether an intervention should be struck is in the discretion of the trial court and its exercise of
that discretion is subject to review for abuse of discretion.” Nacol v. State, 792 S.W.2d 810, 812
(Tex. App.—Houston [14th Dist.] 1990, writ denied). Appellant has not shown that the Attorney
General’s intervention was untimely or that the trial court abused its discretion in allowing the
intervention. We overrule appellant’s first issue on appeal.
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In his second issue, appellant contends that the trial court’s order distributing the
deposited funds is not supported by the evidence. However, the record contains the 1975 warranty
deed of the property to E. and Hettie Evans, “for the St. Johns Church of God in Christ #2,” and the
tax records of the Travis County Appraisal District indicate the property was owned by the St. Johns
Church of God in Christ #2. See Tex. Prop. Code Ann. § 112.001(1), (2) (West 1995) (trust may be
created by property owner’s declaration that he holds property as trustee for another or his inter vivos
transfer of property to another as trustee for third party). The Attorney General’s research found that
the church was “a local church operating under The Church of God in Christ, Inc. a Tennessee
nonprofit corporation. The Church of God in Christ, Inc. is the national governing body of Church
of God in Christ churches.” The Attorney General stated that the church was “a local church under
the Second Ecclesiastical Southeast Jurisdiction of Texas,” and, therefore, that entity was the proper
recipient of the deposited funds. Although appellant alleges in his statement of facts that the
property was the Evanses’ residence “before Church Services were ever held by Pastor Evans at their
home,” and asserts that “[a] Pastor of a Church can not be a trustee of the same Church,” these
allegations are not supported by the record or by authority. See Tex. R. App. P. 38.1(h) (brief must
include appropriate citations to authority and record); Carlisle v. Philip Morris, Inc., 805 S.W.2d
498, 501 (Tex. App.—Austin 1991, writ denied) (appellate court generally may not consider matters
outside the appellate record); see also Tex. Prop. Code Ann. § 112.008 (West 1995) (beneficiary not
automatically disqualified from being trustee); Gonzalez v. Gonzalez, 457 S.W.2d 440, 448 (Tex.
Civ. App.—Corpus Christi 1970, writ ref’d n.r.e.) (trustee may be beneficiary or executor of trust).
Further, such “facts” would not rebut the presumption that, because appellant’s brother and sister-in-
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law were deeded the property only as trustees for the church, the church was the true owner of
equitable title to the property, see Hallmark v. Port/Cooper-T. Smith Stevedoring Co., 907 S.W.2d
586, 589 (Tex. App.—Corpus Christi 1995, no writ), or the Attorney General’s conclusion that the
Church of God in Christ, Second Ecclesiastical Southeast Jurisdiction of Texas was the appropriate
recipient of the funds paid in exchange for the property title taken by AISD. We overrule appellant’s
second issue on appeal and affirm the order of the trial court.
__________________________________________
Mack Kidd, Justice
Before Justices Kidd, Patterson and Puryear
Affirmed
Filed: September 25, 2003
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