In the Matter of the Estate of Joshua Daniel Tovar v. the State of Texas ( 2023 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§ No. 08-22-00028-CV
§ Appeal from the
IN THE MATTER OF THE ESTATE OF
JOSHUA DANIEL TOVAR, DECEASED. § Probate Court Number 1
§ of El Paso County, Texas
§ (TC# 2021-CPR01440)
MEMORANDUM OPINION
Appellant Carly Zambrano appeals from the trial court’s order appointing Appellee Nancy
Tovar as administrator of Joshua Daniel Tovar’s (Decedent’s) estate. Raising four issues,
Zambrano argues the trial court erred when it appointed Tovar as administrator of Decedent’s
estate because Tovar did not have priority over Zambrano. For the reasons set forth below, we
affirm the trial court’s judgment.
I. BACKGROUND
Decedent, a resident of El Paso County, died intestate on July 9, 2021, in San Diego,
California. When he passed away, Decedent was unmarried and had a minor child with Zambrano.
Decedent was survived by Tovar, his mother; N.J.T., his minor child1; and Zambrano, N.J.T.’s
mother.
1
We shall refer to the minor child as N.J.T. throughout this opinion to protect his identity.
After Decedent passed away, Tovar filed an application to become independent
administrator of Decedent’s estate. Zambrano then filed a counter-application to become
independent administrator of Decedent’s estate. Tovar’s application stated that she was Decedent’s
mother. Zambrano’s application stated that she was N.J.T.’s mother. Both applications stated that
Decedent died intestate and his sole heir was N.J.T. Each application also stated that the relevant
applicant, either Tovar and Zambrano, was an El Paso County resident and not disqualified by law
to serve as personal representative of the estate or from accepting letters of independent
administration.
The trial court appointed an attorney ad litem to represent the interests of both unknown
heirs and heirs suffering from legal disability. The attorney ad litem determined Decedent’s sole
heir and child was N.J.T. The attorney ad litem also determined N.J.T. was a minor and, therefore,
had a legal disability. The trial court found that N.J.T was the sole heir and entitled to all of
Decedent’s estate. The trial court continued the attorney ad litem’s appointment on behalf of N.J.T.
The trial court held a hearing to determine heirship and appoint a personal representative
for Decedent’s estate. 2 At the hearing, Tovar testified that she was Decedent’s mother, had never
been convicted of a felony, and had never declared bankruptcy. Tovar also testified that her
intention as administrator of the estate was to collect Decedent’s assets and distribute them into a
trust for N.J.T.’s benefit. Tovar argued that she was qualified to serve as the administrator and had
priority to serve over both Zambrano and a third party under § 304.001 of the Estates Code. While
she originally filed for an independent administration, Tovar told the trial court she would also
accept a dependent administration.
2
At the request of Tovar’s counsel, the hearing was bifurcated between the heirship determination and the
appointment. There was, however, overlap between the issues; and, therefore, the factual summary below considers
the hearing as a whole.
2
At the hearing, Zambrano argued she, as mother of the sole heir, had equal priority to Tovar
under the law. Zambrano testified her relationship with Tovar and Aaron Tovar (Tovar’s husband
and Decedent’s father) was unhealthy and she did not believe Tovar would be honest with the
court or Zambrano concerning the estate.
After listening to the testimony, the trial court granted a dependent administration and
appointed Tovar as administrator. Tovar was sworn in as dependent administrator. This appeal
followed.
II. DISCUSSION
Although Zambrano raises four issues: (1) whether the trial court erred in its interpretation
of Texas Estates Code § 304.001; (2) whether the trial court’s findings of fact were supported by
legally and factually sufficient evidence; (3) whether the trial court’s Findings of Fact Numbers
Six and Nine were supported by legally and factually sufficient evidence; and (4) whether the trial
court erred in reaching Conclusions of Law Nine through Thirteen and whether there was legally
insufficient evidence to support the conclusions. We consolidate Issues Two and Three because of
their substantial overlap. Each issue is considered below.
a. Under Texas Estates Code § 304.001, Tovar had priority to serve as personal
representative of Decedent’s estate.
Zambrano argues the trial court erred in determining Texas Estates Code § 304.001 gives
priority to Tovar to serve as personal representative of Decedent’s estate. Zambrano argues
because N.J.T. is disqualified from serving as personal representative, priority should pass to
Zambrano, N.J.T.’s next of kin. For the reasons below, we hold that the trial court did not err in its
interpretation of the statute.
i. Standard of review and applicable law
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We review a question of statutory construction de novo. El Paso Indep. Sch. Dist. v. Kell,
465 S.W.3d 383, 386 (Tex. App.—El Paso 2015, pet. denied). Our primary object is to give effect
to the Legislature’s intent by “looking first and foremost at the statutory text[.]” Miller Weisbrod,
L.L.P. v. Llamas-Soforo, 511 S.W.3d 181, 184 (Tex. App.—El Paso 2014, no pet.). “The plain
meaning of the text is the best expression of legislative intent unless a different meaning is apparent
from the context or the plain meaning leads to absurd or nonsensical results.” Molinet v. Kimbrell,
356 S.W.3d 407, 411 (Tex. 2011).
Section 304.001 of the Texas Estates Code determines the priority of persons qualified to
serve as personal representatives to an estate. TEX. EST. CODE ANN. § 304.001. Under § 304.001,
persons qualified to serve as representatives to an intestate estate are prioritized as follows: the
decedent’s surviving spouse; the next of kin of the decedent; a creditor of the decedent; any person
of good character residing in the county who applies for the letters; any other person who is not
disqualified under § 304.003; and any appointed public probate administrator. Id. The category at
issue here is next of kin of the decedent.
The statute states next of kin “is determined in accordance with order of descent, with the
person nearest in order of descent first, and so on[.]” TEX. EST. CODE ANN. § 304.001(b)(1). The
legislature has fixed the degree of relationship between blood relatives as determined by the
number of generations that separate them. TEX. GOV’T CODE ANN. § 573.023. “A parent and child
are related in the first degree[.]” Id. The legislature has also determined that individuals may be
related to each other by affinity if they are married or “the spouse of one of the individuals is
related by consanguinity to the other individual.” TEX. GOV’T CODE ANN. § 573.024.
ii. Analysis
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The statute articulates the category of priority applicable here as “the next of kin of the
decedent.” TEX. EST. CODE ANN. § 304.001(a)(5). Zambrano argues she is entitled to priority as
next of kin of the decedent’s next of kin. This interpretation of the statute is directly contradicted
by the plain text, which focuses on the decedent. Id. Further, the other provisions of the statute
providing greater priority also focus upon the decedent. Id. The provisions that do not center on
the decedent are lower priority and, consequently, much more general. See id. §304.001(7) (“any
person of good character residing in the county who applies for the letters”). We therefore interpret
the statute to prioritize decedent’s next of kin and not the next of kin of the decedent’s next of kin.
Next, we turn to whether the trial court properly identified Tovar as Decedent’s next of
kin. As an initial matter, it is undisputed that N.J.T. is not qualified to serve as personal
representative because he is a minor. TEX. EST. CODE ANN. § 304.003. But we include N.J.T. in
our analysis because Zambrano’s argument relies, in part, on her contention that N.J.T. cuts off
Tovar’s priority under the statute.
Under the statute’s definition of next of kin, we consider who has the closest consanguinity
or affinity relationship with Decedent. First, we consider the degree of relationship between all
involved parties. N.J.T. is Decedent’s child; and, therefore, he and Decedent are related in the first
degree. TEX. GOV’T CODE ANN. § 573.023. Similarly, Decedent is Tovar’s child; and, therefore,
she and Decedent are also related in the first degree. Id. Zambrano was not Decedent’s spouse and
there is no evidence she is married to someone who has a relationship of consanguinity with
Decedent. Therefore, Zambrano is not related to Decedent by consanguinity or affinity. See TEX.
GOV’T CODE ANN. §§ 573.023, 573.024. For these reasons, both N.J.T. and Tovar are Decedent’s
next of kin.
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Zambrano argues N.J.T. is Decedent’s primary next of kin because he is the sole heir to
the intestate estate. Assuming Zambrano’s assertion that N.J.T. is the primary next of kin is correct,
we next examine what occurs when a primary next of kin is not qualified to serve as personal
representative. In Slay v. Davidson, the Beaumont Court of Appeals was faced with a similar issue.
Slay v. Davidson, 88 S.W.2d 650, 651 (Tex. App.—Beaumont 1935, writ ref’d). In that case, the
decedent’s brother, Davidson, claimed his right as next of kin and filed an application to be
appointed administrator. Id. The Decedent’s nephew, Slay, filed a counter application, arguing
Davidson was not mentally or physically qualified to act as administrator because of his age. Id.At trial, Davidson requested if he was not appointed administrator due to his age, he would
renounce his right to be appointed administrator in favor of his designee. Id. The trial court denied
the applications of both Davidson and Slay and appointed Davidson’s designee. Id. at 651-52. The
court of appeals held that Davidson, could not designate an administrator because he had been
disqualified from serving as administrator. Id. at 653. The court of appeals held Slay, who was the
secondary next of kin after Davidson, was entitled, if qualified, to be appointed administrator of
the estate following Davidson’s disqualification. Id. Similarly, turning to the case at hand, N.J.T.
is the primary next of kin but is disqualified from being appointed as a personal representative of
the estate. We agree with the Beaumont Court of Appeals that in such a case, priority should extend
to the secondary next of kin, if any. Therefore, the trial court did not err in appointing Tovar as a
personal representative of the estate.
In the interest of completeness, we address the last portion of Zambrano’s argument on this
issue. Zambrano argued § 304.001(b)(2) of the Texas Estates Code supports an appointment of
persons not related by consanguinity. This section only applies to persons who have been adopted
by or have themselves adopted a decedent. TEX. EST. CODE ANN. § 304.001(b)(2). There is no
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evidence or claim that Zambrano was adopted by or adopted Decedent. Therefore, § 304.001(b)(2)
is not relevant to our analysis.
Zambrano’s first issue is overruled.
b. The Trial Court’s Findings of Fact were supported by legal and factually
sufficient evidence.
Next, we address whether the trial court’s findings of fact were supported by legally and
factually sufficient evidence. In addition to generally arguing that all the trial court’s findings of
fact were legally and factually insufficient, Zambrano specifically argues that Findings of Fact Six
and Nine were legally and factually insufficient. We analyze each finding of fact’s legal and factual
sufficiency in turn.
i. Standard of review
When the trial court issues findings of fact and conclusions of law, the appellant may
challenge the findings of fact on legal and factual sufficiency grounds. Fed. Corp., Inc. v. Truhlar,
632 S.W.3d 697, 716 (Tex. App.—El Paso 2021, pet. denied). If an appellant advances a legal
sufficiency challenge, the record must contain more than a scintilla of evidence to support the
questioned finding; if it does, the no-evidence point fails. Id. at 716-17 (citing BMC Software
Belgium v. Marchland, 83 S.W.3d 789, 794 (Tex. 2002)). If an appellant advances a factual
sufficiency challenge, we examine the entire record considering the evidence for and against the
challenged finding. Id. at 716. A finding is only set aside if we find it is “so contrary to the
overwhelming weight of the evidence as to be clearly wrong or unjust.” Id. (citing Cain v. Bain,
709 S.W.2d 175, 176 (Tex. 1986)).
ii. Findings of Fact One through Five
The trial court’s first finding of fact is “On July 9, 2021 Daniel Joshua Tovar (the
‘Decedent’) died intestate in San Diego County, California at the age of twenty-seven (27) years
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of age. At the time of his death, Decedent was a resident of El Paso County, Texas.” At the hearing,
Tovar testified Decedent died intestate in San Diego, California on July 9, 2021. Further, Tovar
testified to Decedent’s birth date, November 30, 1993, which is consistent with Decedent having
been 27 years of age. Further, both applications stated Decedent died intestate at 27 years of age
on July 9, 2021. The only evidence controverting any portion of this finding is Zambrano’s
application, which states Decedent passed away in El Paso County. Therefore, this finding of fact
is supported by more than a scintilla of evidence and is not contrary to the overwhelming weight
of the evidence.
The trial court’s second and third findings of fact are: “At the time of Decedent’s death he
was divorced and had one child: [N.J.T.] who is a minor. Carly Zambrano is the mother of
[N.J.T.];” and “Decedent and Carly Zambrano were not married at the time of Decedent’s death.”
Tovar testified at the time of his death, Decedent was unmarried, divorced, and had one child,
N.J.T. Further, Zambrano’s application also states Decedent was unmarried, divorced, and had
only a minor child, N.J.T. No evidence in the record controverts any portion in these findings.
Therefore, these findings of fact are supported by more than a scintilla of evidence and are not
contrary to the overwhelming weight of the evidence.
The trial court’s fourth finding of fact is “Aaron Tovar and Nancy Tovar are the Decedent’s
parents.” Tovar testified that she is Decedent’s mother. Aaron Tovar’s testimony also identified
Decedent as his son and N.J.T as his grandson. No evidence in the record controverts any portion
of this finding of fact. Therefore, this finding of fact is supported by more than a scintilla of
evidence and is not contrary to the overwhelming weight of the evidence.
The trial court’s fifth finding of fact is “[t]he Tovars and Carly Zambrano have filed
competing applications to be appointed administrator of the Decedent’s estate.” Tovar and
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Zambrano both filed separate applications to be appointed administrator of the Decedent’s estate.
No evidence in the record controverts any portion of this finding of fact. Therefore, this finding of
fact is supported by more than a scintilla of evidence and is not contrary to the overwhelming
weight of the evidence.
iii. Finding of Fact Number Six
The trial court’s sixth finding of fact is “Nancy Tovar is qualified to serve as the personal
representative of the Decedent’s Estate.” Zambrano’s argument to Tovar’s qualification is centered
on whether Tovar should have priority over other qualified applicants for administration, not
whether Tovar should be otherwise disqualified. Although the issue of priority has been disposed
of, we examine the record to determine whether Tovar’s qualifications to serve as personal
representative are supported by more than a scintilla of evidence and not contrary to the
overwhelming weight of the evidence.
Under § 304.003 of the Texas Estates Code, a person is disqualified to serve as an
administrator if she is: (1) incapacitated; (2) a felon; (3) a nonresident of the state; (4) a corporation
not authorized to act as a fiduciary in this state; or (5) a person whom the court finds unsuitable.
TEX. EST. CODE ANN. § 304.003. Tovar is a natural person; therefore, we do not consider the fourth
disqualification category. We consider the remaining categories in turn.
First, an incapacitated person is either: a minor; a person who must have a guardian
appointed to receive government funds; or an adult who, because of a physical or mental condition,
is substantially unable to care for her own physical health, manage her own financial affairs, or
provide food, clothing, or shelter for herself. TEX. EST. CODE ANN. § 22.016. Tovar is not a minor.
In this case, Tovar appeared before the trial court and testified under oath. No evidence was
presented she required a guardian. Further, no evidence was presented that she was unable to care
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for her own physical health; manage her own financial affairs; or provide food, clothing, or shelter
for herself. More than a scintilla of evidence supports that Tovar is not an incapacitated person.
Further, this is not contrary to the overwhelming weight of the evidence.
Second, Tovar testified she has not been convicted of a felony. No evidence in the record
controverts this testimony. More than a scintilla of evidence supports that Tovar is not a felon.
Further, this is not contrary to the overwhelming weight of the evidence.
Third, Tovar’s application stated she was a resident of El Paso County, Texas. No evidence
in the record controverts this testimony. More than a scintilla of evidence supports that Tovar is a
resident of El Paso County, Texas. Further, this is not contrary to the overwhelming weight of the
evidence.
Finally, the court determined Tovar should be appointed administrator of Decedent’s
estate. This decision was supported by Tovar’s testimony she had never declared bankruptcy and
that as administrator, she would collect Decedent’s assets and distribute them into a trust for
N.J.T.’s. More than a scintilla of evidence supports that the trial court did not find Tovar
unsuitable. Further, this is not contrary to the overwhelming weight of the evidence.
For the reasons above, more than a scintilla of evidence support the finding Tovar is
qualified to serve as the estate’s personal representative. This finding is not contrary to the
overwhelming weight of the evidence.
iv. Findings of Fact Seven and Eight
The trial court’s seventh finding of fact is “Decedent’s only child is a minor and therefore
cannot serve as the personal representative of the Decedent’s Estate.” Tovar testified that at the
time of his death, Decedent had one child, N.J.T. Further, Zambrano’s application also states that
Decedent had only a minor child, N.J.T. Minors are incapacitated persons and, therefore,
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disqualified from serving as personal representatives. TEX. EST. CODE ANN. §§ 22.016, 304.003.
Therefore, this finding of fact is supported by more than a scintilla of evidence and is not contrary
to the overwhelming weight of the evidence.
The trial court’s eighth finding of fact is “Carly Zambrano is not related by blood to the
Decedent.” In her application, Zambrano identified herself as N.J.T.’s mother and not as
Decedent’s relative. No evidence was offered to show Zambrano was related to Decedent by blood.
Therefore, this finding of fact is supported by more than a scintilla of evidence and is not contrary
to the overwhelming weight of the evidence.
v. Finding of Fact Nine
The trial court’s ninth finding of fact is “[d]ue to the fact Decedent’s only heir is a minor
child, Aaron and Nancy Tovar are the next of kin for purposes of appointing an administrator of
the Decedent’s Estate.” This finding of fact combines the earlier findings of fact, considered fully
above, and applies them to the next of kin analysis in the discussion of Zambrano’s first issue.
Accordingly, Tovar and Aaron Tovar are the Decedent’s next of kin. Therefore, this finding of fact
is supported by more than a scintilla of evidence and is not contrary to the overwhelming weight
of the evidence.
Zambrano’s second and third issues are overruled.
c. The Trial Court’s Conclusions of Law Nine through Thirteen were not
erroneous as a matter of law.
Zambrano argues the trial court erred in reaching Conclusions of Law Nine through
Thirteen or that there was legally insufficient evidence to support those conclusions. We consider
each conclusion in turn.
i. Standard of review
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A trial court’s conclusions of law are reviewed de novo to determine if the trial court drew
the correct legal conclusions from the facts. Perez v. Old W. Cap. Co., 411 S.W.3d 66, 75 (Tex.
App.—El Paso 2013, no pet.); Bundren v. Holly Oaks Townhomes Ass’n, Inc., 347 S.W.3d 421,
429-30 (Tex. App.—Dallas 2011, pet. denied). If “any legal theory supported by the evidence
sustains the judgment,” then we must uphold conclusions of law. OAIC Com. Assets, L.L.C. v.
Stonegate Vill., L.P., 234 S.W.3d 726, 736 (Tex. App.—Dallas 2007, pet. denied); Bundren, 347
S.W.3d at 430. We only reverse a trial court’s judgment if the conclusions of law are erroneous as
a matter of law. Perez, 411 S.W.3d at 75.
The trial court’s ninth conclusion of law is that under the priority statute, Zambrano would
be considered a person of good character who resides in El Paso County. As discussed in the first
issue’s analysis, Zambrano is not the Decedent’s next of kin and does not qualify for priority under
that category. The following two categories under the statute are a creditor of the decedent or any
person of good character residing in the county. TEX. EST. CODE ANN. § 304.001. No evidence has
been presented that Zambrano is Decedent’s creditor. Therefore, the only other category of priority
Zambrano fits is a person of good character who resides in El Paso County. This conclusion of law
is not erroneous as a matter of law.
The trial court’s tenth and eleventh conclusions of law are that Tovar and Aaron Tovar are
Decedent’s next of kin and Tovar has priority to serve as personal representative of Decedent’s
estate. These conclusions are discussed in the analysis of Zambrano’s first issue. We agree with
the trial court that as his parents, Tovar and Aaron Tovar are Decedent’s next of kin. Therefore,
Tovar has priority to serve as personal representative of the estate. These conclusions of law are
not erroneous as a matter of law.
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The trial court’s twelfth conclusion of law is that Tovar is not disqualified to serve as
personal representative of Decedent’s estate. This conclusion is discussed in the analysis of the
trial court’s Finding of Fact Number Six. More than a scintilla of evidence supports the finding
that Tovar is qualified to serve as the personal representative. Further, that finding is not contrary
to the overwhelming weight of the evidence. This conclusion of law is not erroneous as a matter
of law.
The trial court’s thirteenth conclusion of law is that the court had a duty to grant letters of
administration to Tovar. Section 304.001 of the Estates Code states that “[t]he court shall grant
letters testamentary or of administration” to persons qualified to serve in the order of priority stated
in the statute. TEX. EST. CODE ANN. § 304.001. Therefore, the trial court had a duty to grant letters
of testamentary to Tovar. This conclusion of law is not erroneous as a matter of law.
Zambrano’s fourth issue is overruled.
CONCLUSION
We affirm the trial court’s order appointing Tovar as personal representative of the
Decedent’s estate.
YVONNE T. RODRIGUEZ, Chief Justice
March 6, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
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