Mary Feild Jarvis v. Frank Ewing Feild and John Shaw Feild ( 2010 )

NUMBER 13-10-00129-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARY FEILD JARVIS, Appellant,
v.
FRANK EWING FEILD AND JOHN
SHAW FEILD, Appellees.
On appeal from the County Court at Law No. 1
of Cameron County, Texas.
OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Opinion by Chief Justice Valdez
This dispute pertains to the accounting and distribution of the estate of Caroline
P. Feild, deceased. Appellant, Mary Feild Jarvis, appeals from an ―Order Approving
Account for Final Settlement‖ signed by the trial court on February 23, 2010. By four
issues, Jarvis, advancing pro se, argues that: (1) the trial court did not have jurisdiction
over this case; (2) the trial court erroneously approved an incomplete inventory of the
estate‘s assets; (3) the trial court erroneously approved of inaccurate market value
assessments of real property contained in the estate; and (4) the trial court‘s final
division of the estate‘s real property conflicts with Caroline‘s intent, as expressed in her
―Last Will and Testament.‖ We affirm.
I. BACKGROUND
In 2003, Jarvis filed a petition in Cameron County, Texas, to be designated
Caroline‘s guardian. The trial court appointed Jarvis as Caroline‘s guardian from 2007
until Caroline‘s death in the state of Washington on May 2, 2008. A final accounting to
close the guardianship case was filed by Jarvis in the Cameron County Court of Law
No. 1.
On May 23, 2008, co-appellee, Frank Feild,1 filed an application to probate
Caroline‘s will and letters of independent executor in the Cameron County court. The
application noted that Jarvis resides at 1892 Birch Avenue in Richland, Washington,
and that she should be served through her resident agent, Ramona Kantack Alcantara,
her attorney from the guardianship case, in Brownsville, Texas. Service of citation was
issued to Jarvis on May 27, 2008, through Alcantara. The citation indicates that
Alcantara accepted service on Jarvis‘s behalf. Subsequently, on June 5, 2008, an
attorney from Alcantara‘s law firm filed an answer and objection to Frank‘s application
for probate on Jarvis‘s behalf. In her sole objection, Jarvis argued that all real property
in the estate should be appraised or assigned a fair market value ―by an individual
qualified to make such an analysis‖ prior to the distribution.
1
In a later-filed affidavit, Frank stated that he is domiciled in Darien, Georgia, and that the other
beneficiary under Caroline‘s will, Jarvis and Frank‘s brother, co-appellee, John Shaw Feild, is domiciled in
St. Petersburg, Florida.
2
On June 24, 2008, the trial court conducted a hearing on Frank‘s application and
letters of independent executor and signed an order appointing Frank as executor of the
estate, as designated by Caroline in her will. The trial court also concluded that ―it has
jurisdiction and venue over this estate.‖ On October 5, 2009, Frank filed an inventory
and appraisal of all real property contained in the estate. In this filing, Frank outlined all
of the contents of the estate and determined that, after $75,322.77 in disbursements
was deducted from the value of the estate, the value of the property and cash in the
estate was $363,185.18. The trial court approved the inventory and appraisals on
October 19, 2009.
The following day, Jarvis sent the trial court a letter alleging that several items
contained in the estate were not listed in the inventory and were missing. Shortly
thereafter, Frank filed an ―Account for Final Settlement,‖ which included additional
receipts and disbursements and which requested the sale and equal distribution of
proceeds amongst the beneficiaries of real property located in Brownsville at 1144
Camwood Place in the Woodlands Park II Subdivision, Lot 23. Jarvis was to be
awarded real property located at 1185 Parkwood Place in the Woodlands Park II
Subdivision, Lot 18, in Brownsville. Frank was to be awarded a one-half share in
property located at 1174 Camwood Street in Brownsville and 440 E. Brushy Valley
Drive in Knoxville, Tennessee, and $11,499.28 in cash.2 Meanwhile, John was to be
awarded the remaining one-half share for 1174 Camwood Street and 440 E. Brushy
Valley Drive, another piece of real property located in Presidio County, Texas, valued at
$4,200, and $9,494.28 in cash. Based on the appraisals obtained for each of the
2
According to Jarvis, the Tennessee property consists of ninety-seven acres of land.
3
properties, Frank asserted that each of the beneficiaries would receive equal shares of
the estate, each valued at $89,175.
The trial court scheduled the matter for a hearing on January 26, 2010. On
January 12, 2010, Jarvis sent a letter protesting the ―Account for Final Settlement‖ and
alleging that the division of the estate‘s assets was inequitable. She argued that the
real property awarded to her had purportedly already been sold to someone else, the
Tennessee property was valued at $2.2 million, and she would not accept ―encumbered
properties as [her] portion of the Estate.‖ She continued, ―I will accept my fair portion of
the Estate‘s worth in United States dollars. For fairness, all properties held by the
Estate (real estate and other) should be immediately sold at fair market prices and the
monies realized divided among the three heirs.‖3 In light of this letter and because all
interested parties were out of town and not able to attend the previously scheduled
January 26, 2010 hearing, Frank filed a motion for continuance, and the trial court re-set
3
John filed several letters with the trial court contesting Jarvis‘s assessment of the situation.
John alleged that Jarvis was estranged from the family and had depleted the value of much of the estate
in the one year that she served as Caroline‘s guardian. John also described the property that Jarvis was
awarded as follows:
The house located at 1185 Parkwood Place, Brownsville, Texas[,] was occupied and
insured until Mary [Feild] Jarvis evicted Inez Salas and left the property to be vandalized.
Over $8,000 in damages were done to the property. Frank E. Field [sic] secured the
house, creating an asset rather than a liability. He sold it at an excellent price[,] which
created an income for his sister. The note can be sold to a 3rd party if she so desires.
With regard to the Tennessee property, John stated that:
The ―Noncertified Appraisal‖ dated 2007 was not disclosed on the final account of Mary
Field [sic] Jarvis and her figure of $2,200,000 makes a mockery of this court. In 2003, a
neighbor offered $70,000. The topography of the property [is] almost straight up and
down and it does not lend itself to development or even a 3-way division. . . . It was in
our family in the 1800‘s[,] and it was Caroline‘s intention that it remains as such. . . . If
Mary Field [sic] Jarvis is not willing to accept the appraised value which, once again, she
did not contest at the time of the final accounting, I recommend that she pay for her own
independent and certified appraisal of the property at her own expense.
4
the hearing on the ―Account for Final Settlement‖ for February 23, 2010. The trial court
sent notice that the hearing was re-set for February 23, 2010 to all interested parties.
At the final hearing on this matter, the trial court was advised of an objection
Jarvis made regarding the valuation of the property located in Tennessee.4 Frank
responded by providing documentation from the Knox County, Tennessee appraisal
district valuing the property at $108,500, of which the trial court took judicial notice. The
trial court signed an order approving of Frank‘s ―Account for Final Settlement.‖ It is from
this order that Jarvis now appeals.
II. JURISDICTION AND VENUE
By her first issue, Jarvis asserts that the trial court did not have jurisdiction over
this matter pursuant to section six of the Texas Probate Code, the venue statute. See
TEX. PROB. CODE ANN. § 6 (Vernon 2003).5 She also asserts that she was not notified of
4
Apparently, Jarvis did not attend the February 23, 2010 hearing. Furthermore, the record does
not contain a reporter‘s record for the February 23, 2010 hearing, or any other hearing conducted in this
matter. In her docketing statement filed with this Court, Jarvis represented that no reporter‘s record was
made for any of the hearings in this matter. This statement is dubious in light of the fact that counsel for
appellees included an excerpt from the reporter‘s record from the February 23, 2010 hearing. Though we
recognize that documents solely appearing in the appendix of an appellate brief are not part of the record
and are generally not considered on appeal, see Till v. Thomas, 10 S.W.3d 730, 733-34 (Tex. App.–
Houston [1st Dist.] 1999, no pet.), it is noteworthy that the transcript reflects that Jarvis was provided
notice by appellees‘ counsel and by the trial court, and the trial court specifically noted that ―[s]he [Jarvis]
knows that she was supposed to be here.‖ In addition, Jarvis admits in her reply brief that she received
―an ‗Order‘ titled ‗Motion for Continuance‘ from the Cameron County court, which said it [the final hearing]
would be heard on February 23, 2010; however, it did not summon me to be present, state the nature of
the hearing, nor provide any documents.‖
5
Section six of the probate code, entitled ―Venue for Probate of Wills and Administration of
Estates of Decedents,‖ provided the following, in relevant part:
Wills shall be admitted for probate, and letters testamentary or of administration shall be
granted:
(a) In the county where the deceased resided, if he had a domicile or fixed
place of residence in this State.
(b) If the deceased had no domicile or fixed place of residence in this State but
died in this State, then either in the county where his principal property was
at the time of his death, or in the county where he died.
5
the trial court‘s intention to exercise jurisdiction over this matter and that, because
Caroline resided in Benton County, Washington, at the time of her death, the will should
have been probated in the state of Washington. Frank and John counter by arguing
that Jarvis waived this issue by failing to specify such arguments in her notice of
appeal.6 In the alternative, Frank and John argue that the trial court had jurisdiction
over this matter because Caroline had property and her will was executed in Cameron
County. Frank and John contend that prior to her death, Caroline was declared
incapacitated and therefore did not have the competency to declare the state of
Washington her domicile. They further contend that the trial court had continuing
jurisdiction over this matter because it had earlier determined that Caroline was
incapacitated. With respect to Jarvis‘s notice argument, Frank and John assert that
Jarvis was served through her attorney, Ramona Kantack Alcantara, and that her
attorney filed an answer and objection on her behalf in this matter.
(c) If he had no domicile or fixed place of residence in this State, and died
outside the limits of this State, then in any county in this State where his
nearest of kin reside.
(d) But if he had no kindred in this State, then in the county where his principal
estate was situated at the time of his death. . . .
TEX. PROB. CODE ANN. § 6 (Vernon 2003). Although much of the probate code was amended or repealed
in 2009, section six remains in effect, though it is scheduled to be renumbered as section six in the Texas
Estates Code on January 1, 2014. See Act of June 19, 2009, 81st Leg., R.S., ch. 680, § 2, 2009 Tex.
Gen. Laws 1511, 1726 (current version at TEX. PROB. CODE ANN. § 6).
6
We reject Frank and John‘s waiver contention as it relates to appellant‘s notice of appeal.
Texas Rule of Appellate Procedure 25.1(d) describes the required contents for a proper notice of appeal.
Specifically, rule 25.1(d) provides that, among other things, the notice of appeal: (1) ―identify the trial
court and state the case‘s trial court number and style‖; (2) ―state the date of the judgment or order
appealed from‖; (3) ―state that the party desires to appeal‖; (4) ―state the court to which the appeal is
taken . . .‖; and (5) ―state the name of each party filing the notice.‖ TEX. R. APP. P. 25.1(d). Rule 25.1(d)
does not require Jarvis to clearly articulate her specific appellate arguments in her notice of appeal to
prevent waiver. See id. Moreover, Frank and John have not cited any authority supporting their
contention. Based on our review of the record, we conclude that Jarvis‘s notice of appeal complies with
rule 25.1(d) and that she properly asserted her arguments in her appellate brief. See id.
6
A. Subject-Matter Jurisdiction
The crux of Jarvis‘s first issue centers on venue. However, to the extent Jarvis
argues that the Cameron County trial court lacked subject-matter jurisdiction over this
case, she has not adequately explained this contention while tying the facts to relevant
authority pertaining to jurisdictional concepts. See TEX. R. APP. P. 38.1(i). Jarvis
repeatedly argues that the probating of Caroline‘s will should have taken place in the
state of Washington, an argument which we construe as pertaining to venue.
Nevertheless, the Texas Supreme Court has held that we are ―obliged to ascertain that
subject[-]matter jurisdiction exists regardless of whether the parties have questioned it.‖
Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004)
(emphasis in original) (citing Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 853-54
(Tex. 2000)). Thus, we have a duty to determine whether the Cameron County court
had subject-matter jurisdiction over this matter. Based on our review of the record, we
believe that the Cameron County Court of Law No. 1 had subject-matter jurisdiction
over the probating of Caroline‘s will because a portion of Caroline‘s estate is situated in
Cameron County. See TEX. PROB. CODE ANN. § 4 (Vernon 2003) (―The county court
shall have the general jurisdiction of a probate court. It shall probate wills, grant letters
testamentary . . . and transact all business appertaining to estates subject to
administration, including the settlement, partition, and distribution of such estates.‖); id.
§ 5(f) (Vernon 2003) (―All courts exercising original probate jurisdiction shall have the
power to hear all matters incident to an estate.‖); id. § 5A(a) (Vernon 2003) (―In
proceedings in the constitutional county courts and statutory county courts at law, the
phrases ‗appertaining to estates‘ and ‗incident to an estate‘ in this Code include the
7
probate of wills, the issuance of letters testamentary and of administration . . . and
generally all matters relating to the settlement, partition, and distribution of estates of
deceased persons.‖); see also English v. Cobb, 593 S.W.2d 674, 676 (Tex. 1979)
(stating that an action incident to an estate is one in which the outcome will have direct
bearing on collecting, assimilating, or distributing the decedent‘s estate).
B. Venue
In making her venue argument, Jarvis cites authority addressing jurisdictional
arguments to contend that section six of the probate code mandated that the estate be
probated in the state of Washington. See id. Venue and jurisdiction are two distinct
concepts, and it appears that Jarvis, in her appellate brief, conflates the two concepts.
Reliant Energy, Inc. v. Gonzalez, 102 S.W.3d 868, 871 (Tex. App.–Houston [1st Dist.]
2003), aff’d, 159 S.W.3d 615 (Tex. 2005) (―Jurisdiction concerns the power of a court,
under the Constitution and laws, to determine the merits of an action as between the
parties and to render a judgment. . . . Venue concerns the propriety of prosecuting a
suit involving a given subject matter and specific parties in a particular county.‖)
(Emphasis in original). Based on our review of Jarvis‘s appellate briefs, it is clear that
the thrust of her first argument is that the Cameron County court was an inappropriate
venue for this matter. Accordingly, we will analyze her first issue with respect to venue.
The record does not contain a written motion arguing that the Cameron County
court was an improper venue in this matter. Jarvis acquiesced to the probating of the
will in Cameron County until the trial court signed the final order, which, as she alleges,
resulted in her being disinherited. She did not object to Cameron County court as being
an improper venue until she filed her appeal with this Court.
8
Texas Rule of Civil Procedure 86(1) provides that an objection to improper venue
is waived if not made by written motion filed prior to or concurrently with any other plea,
pleading, or motion, except a special appearance motion provided for in rule 120a. See
TEX. R. CIV. P. 86(1); see also Graybar Elec. Co. v. Gonzalez (In re Graybar Elec. Co.),
Nos. 13-08-00073-CV, 13-08-00294-CV, 13-08-00333-CV, 13-08-00341-CV, 2008 Tex.
App. LEXIS 6868, at *45 (Tex. App.–Corpus Christi Aug. 26, 2008, no pet.) (mem. op.).
Even though it appears that appellant may have advanced pro se for some of the
proceedings below, her pro se status does not relieve her from complying with
applicable laws and rules of procedure. See Green v. Kaposta, 152 S.W.3d 839, 841
(Tex. App.–Dallas 2005, no pet.); see also Siddiqui v. Siddiqui, No. 14-07-00235-CV,
2009 Tex. App. LEXIS 1443, at *4 (Tex. App.–Houston [14th Dist.] Mar. 3, 2009, pet.
denied) (mem. op.) (―While we have compassion for the plight of the pro se litigant
attempting to follow the rules of legal procedure and substantive law, and therefore
construe pro se pleadings and briefs liberally, we must still hold appellant to the same
standard as a licensed attorney, requiring that he follow those same rules and laws . . . .
To do otherwise would give a pro se litigant an unfair advantage over a litigant
represented by counsel.‖). Therefore, because Jarvis did not make a written objection
to the Cameron County court as an improper venue for the probating of Caroline‘s will
until she filed her appeal, we conclude that her venue argument is waived. See TEX. R.
CIV. P. 86(1); see also Graybar Elec. Co., 2008 Tex. App. LEXIS 6868, at *45.
C. Notice and Personal Jurisdiction
Jarvis also argues that the Cameron County court lacked personal jurisdiction
over her because she did not receive notice of the various filings and hearing in this
9
matter. Jarvis‘s claims—that she did not receive notice of the various hearings and
pleadings filed in this case and that she was not properly served—constitute a
challenge to the court‘s personal jurisdiction over her. See Furst v. Smith, 176 S.W.3d
864, 868 (Tex. App.–Houston [1st Dist.] 2005, no pet.); see also Houston Precast, Inc.
v. McAllen Constr. Inc., No. 13-07-135-CV, 2008 Tex. App. LEXIS 7129, at *3 (Tex.
App.–Corpus Christi Sept. 25, 2008, no pet.) (mem. op.). Whether the Cameron County
court had personal jurisdiction over Jarvis is a question of law. See Coronado v.
Norman, 111 S.W.3d 838, 841 (Tex. App.–Eastland 2003, pet. denied); see also
Houston Precast, Inc., 2008 Tex. App. LEXIS 7129, at *3. Personal jurisdiction is
composed of two elements: (1) the defendant must be amenable to the jurisdiction of
the court; and (2) if the defendant is amenable to the jurisdiction of the court, the plaintiff
must validly invoke that jurisdiction by valid service of process on the defendant.
Coronado, 111 S.W.3d at 841 (citing Kawasaki Steel Corp. v. Middleton, 699 S.W.2d
199, 200 (Tex. 1985)). When a defendant has not answered, a trial court acquires
jurisdiction over that defendant solely on proof of proper service. See Furst, 176
S.W.3d at 868; see also Houston Precast, Inc., 2008 Tex. App. LEXIS 7129, at *3.
There are no presumptions in favor of valid issuance, service, and return of
citation, and a failure to affirmatively demonstrate strict compliance with the rules of civil
procedure renders an attempted service of process invalid and of no effect. See Wilson
v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Uvalde Country Club v. Martin Linen Supply
Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam); see also Furst, 176 S.W.3d at 869;
All Commercial Floors, Inc. v. Barton & Rasor, 97 S.W.3d 723, 726 (Tex. App.–Fort
Worth 2003, no pet.). An appellant may raise a defect in service for the first time on
10
appeal. All Commercial Floors, Inc., 97 S.W.3d at 725 (citing Wilson, 800 S.W.2d at
836-37).
In support of her contentions, Jarvis asserts that the Kantack Alcantara Law
Office, P.C. only had a contract to represent her during the earlier guardianship
proceedings, not the proceedings pertaining to the probating of Caroline‘s will.
Nevertheless, the record does not include a copy of the contract between the law firm
and appellant regarding representation. Appellant relies solely on her bald assertions
that the law firm did not represent her in this matter, even though the record: (1)
contains filings (an answer and objection to Frank‘s probate application) made by the
law firm on Jarvis‘s behalf; (2) indicates that the law firm accepted service on Jarvis‘s
behalf; and (3) contains the trial court‘s note that Jarvis received notice of the various
filings and hearings in this matter. See Furst, 176 S.W.3d at 868; see also Houston
Precast, Inc., 2008 Tex. App. LEXIS 7129, at *3. Jarvis argues that section 128A of the
probate code entitled her to personal service of all filings and notices in this case. See
TEX. PROB. CODE ANN. § 128A(a) (Vernon 2003). Section 128A, however, does not
support Jarvis‘s argument because it pertains to notice to ―the state, a governmental
agency of the state, or a charitable organization‖ regarding a will admitted to probate.
See id. Her status in this case does not fall within the purview of section 128A. See id.
Jarvis also argues that sections 33(f)(1) and 407(1) of the probate code required
personal service. See id. §§ 33(f)(1), 407(1) (Vernon 2003). Section 33(f)(1) provides
that ―[w]here it is provided that personal service shall be had with respect to a citation or
notice, any such citation or notice must be served upon the attorney of record for the
person to be cited.‖ Id. § 33(f)(1). Section 407(1) pertains to the presentation of
11
account for final settlement and requires that ―notice shall be given by the personal
representative to each heir or beneficiary of the decedent by certified mail, return receipt
requested, unless another type of notice is directed by the court by written order.‖ Id. §
407(1).
Here, notice was sent by certified mail to Jarvis‘s attorney at the Kantack
Alcantara Law Office, P.C. As a result of the notice, the law firm filed an original answer
and objection on Jarvis‘s behalf, to which Jarvis did not object. See Baker v. Monsanto
Co., 111 S.W.3d 158, 160 (Tex. 2003) (stating that the filing of an answer constitutes a
general appearance, which submits a defendant to the jurisdiction of the court for all
purposes); see also Boyes v. Morries, Polich & Purdy, LLP, 169 S.W.3d 448, 455 (Tex.
App.–El Paso 2005, no pet.) (same). The record reflects that all notices were sent by
certified mail to the law firm, who appears to be registered as appellant‘s agent for
service of process. Later, Jarvis filed several letters with the trial court at or near the
time various hearings were conducted or orders signed, which indicates that she
received notice of the various filings and hearings. Furthermore, Jarvis admits on
appeal that she received notice of the final February 23, 2010 hearing, but she did not
think that she was required to attend. She also complains that the estate declined to
pay her expenses to travel to Cameron County for the various hearings, which suggests
that she made a conscious choice to not attend the hearings because she did not
believe that her expenses would be paid for by the estate. Finally, the trial court noted
Jarvis‘s objections to the appraised value of the Tennessee property that she had
repeatedly raised in earlier-filed letters, which demonstrates that her concerns were
considered by the Cameron County court.
12
Based on our review, the record demonstrates that: (1) Jarvis received notice of
the various hearings and pleadings, as evidenced by her letters sent in response to
such filings and setting; (2) the Kantack Alcantara Law Office, P.C. represented Jarvis
in the probate proceedings and was her registered agent for service of process; and (3)
Jarvis was not harmed in this matter because the trial court considered her complaints
regarding the appraised value of the Tennessee property. We therefore conclude that
Jarvis has not satisfied her burden of demonstrating that the Cameron County court
lacked personal jurisdiction over her because of lack of notice or defective service.7
See Middleton, 699 S.W.2d at 200; Furst, 176 S.W.3d at 868; Coronado, 111 S.W.3d at
841; see also Houston Precast, Inc., 2008 Tex. App. LEXIS 7129, at *3. Accordingly,
we overrule appellant‘s first issue.
III. INVENTORY, APPRAISEMENT, AND FINAL SETTLEMENT OF THE ESTATE
In her second and third issues, Jarvis contends that the trial court ―knowingly
approved an incomplete inventory of real property [e]state assets, including real
property, by the [e]xecutor‖ and ―allowed inaccurate market value assessments of real
property [e]state assets by the [e]xecutor.‖ Jarvis alleges that Frank improperly
included three properties in the inventory of the estate that were previously sold to third
parties and intentionally ―deflated estimates of real property values‖ so as to reduce her
inheritance. She further alleges that the trial court ―failed to hold the [e]xecutor
financially or criminally responsible for selling [e]state real property, without prior Court
approval,‖ including the property located at 1185 Parkwood Place in Brownsville that
7
It is also noteworthy that Jarvis did not file a special appearance in the Cameron County court
challenging the Cameron County court‘s personal and subject-matter jurisdiction. See TEX. R. APP. P.
33.1; Anchia v. DaimlerChrysler AG, 230 S.W.3d 493, 500 n.1 (Tex. App.–Dallas 2007, pet. denied)
(providing that special appearance issues not raised by an appellant to a trial court are generally waived
on interlocutory appeal).
13
was awarded to her. Jarvis argues that the trial court was complicit in allowing for the
valuation of the estate based on the inventory to be ―grossly underestimated.‖ Frank
and John contend that Jarvis failed to preserve these issues because her notice of
appeal specifically stated that she appealed the ―Order Approving Account for Final
Settlement,‖ rather than the ―Order Approving Inventory Appraisement[,] and List of
Claims.‖
In her pro se notice of appeal, Jarvis states the following: ―Mary (Maria) Feild
Jarvis, Real Party Interest, desires to appeal and seek relief from the ―Order Approving
Account for Final Settlement‖ (Cause No. 2008-CPC-163-A) issued by presiding Judge
MacDonald on February 23, 2010.‖ As noted earlier, Texas Rule of Appellate
Procedure 25.1(d)(2) requires appellant to ―state the date of the judgment or order
appealed from.‖ TEX. R. APP. P. 25.1(d)(2); see Dugan v. Compass Bank, 129 S.W.3d
579, 581 (Tex. App.–Dallas 2003, no pet.). The record reflects that the inventory order
and the final settlement order are two separate orders signed on different dates—
October 19, 2009 and February 23, 2010, respectively. At no point in her notice of
appeal does Jarvis specify that she was appealing from the ―Order Approving Inventory
Appraisement[,] and List of Claims.‖
In response to Frank and John‘s preservation arguments, Jarvis asserts that the
inventory order and the ―Order Approving Account for Final Settlement‖ are ―linked
documents‖ and that ―the latter cannot exist without the former. Therefore, citation of
the ‗Order Approving Account for Final Settlement‘ in the ‗Notice of Appeal‘
automatically places the ‗Inventory, Appraisement[,] and List of Claims‘ [sic] under
appeal.‖ However, Jarvis does not cite any authority supporting this contention. See
14
TEX. R. APP. P. 38.1(i). Nevertheless, Texas courts have noted that the ―disposing of
appeals for harmless procedural defects is disfavored. That policy is reflected in Texas
Rule of Appellate Procedure 38.1(f)[,] which provides that the statement of an issue will
be treated as covering every subsidiary question that is fairly included.‖ Perry v. Cohen,
272 S.W.3d 585, 587 (Tex. 2008) (citing Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.
1997)); see TEX. R. APP. P. 38.1(f). Further, ―[a]ppellate briefs are to be construed
reasonably, yet liberally, so that the right of appellate review is not lost by waiver.
Simply stated, appellate courts should reach the merits of an appeal whenever
reasonably possible.‖ Perry, 272 S.W.3d at 587 (citing El Paso Natural Gas v. Minco
Oil & Gas, Inc., 8 S.W.3d 309, 316 (Tex. 1999); Verburgt, 959 S.W.2d at 616).
Regarding appeals of probate orders, the Texas Supreme Court has stated that in
probate proceedings, multiple judgments may be considered final for purposes of
appeal on certain discrete issues. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192
(Tex. 2001) (citing Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)8); see also
Brittingham-Sada de Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (―Probate
proceedings are an exception to the ‗one final judgment‘ rule; in such cases, ‗multiple
judgments final for purposes of appeal can be rendered on certain discrete issues.‘‖)
8
In Crowson v. Wakeham, the supreme court adopted the following test regarding the
appealability of probate orders:
If there is an express statute, such as the one for the complete heirship judgment,
declaring the phase of the probate proceedings to be final and appealable, that statute
controls. Otherwise, if there is a proceeding of which the order in question may logically
be considered a part, but one or more pleadings also part of that proceeding raise issues
or parties not disposed of, then the probate order is interlocutory. For appellate
purposes, it may be made final by a severance order, if it meets the severance criteria, as
did the order in the present case. . . . A severance order avoids ambiguities regarding
whether the matter is appealable. Litigants can and should seek a severance order
either with the judgment disposing of one party or group or parties, or seek severance as
quickly as practicable after the judgment.
897 S.W.2d 779, 783 (Tex. 1995).
15
(quoting Lehmann, 39 S.W.3d at 192). However, ―[n]ot every interlocutory order in a
probate case is appealable . . . and determining whether an otherwise interlocutory
probate order is final enough to qualify for appeal, have proved difficult.‖ Mackie, 193
S.W.3d at 578. Assuming, without deciding, that the ―Order Approving Inventory,
Appraisement[,] and List of Claims‖ is an appealable order, we will analyze Jarvis‘s
complaints pertaining to this order in the interest of justice and in accordance with
supreme court directives that we should construe appellate issues liberally so that the
right to appeal is not lost. See Perry, 272 S.W.3d at 587; El Paso Natural Gas, 8
S.W.3d at 316; Verburgt, 959 S.W.2d at 616; see also TEX. R. APP. P. 38.1(f).
In both her second and third issues, Jarvis complains about the appraisals of the
property contained in Caroline‘s estate, which allegedly resulted in a decrease in the
value of her inheritance, Frank‘s purported sale of several properties of the estate, and
Frank‘s alleged intentional exclusion of items from the inventory of the estate. However,
in her appellate briefs, Jarvis does not sufficiently argue or cite to evidence in the record
showing that items contained in Caroline‘s estate were intentionally excluded from the
inventory by Frank. See TEX. R. APP. P. 38.1(i). Moreover, she does not direct us to
evidence contained in the record demonstrating that the properties in the estate were
improperly sold or intentionally undervalued so as to reduce her inheritance. See id.
Jarvis includes an internet listing in her appendix attached to her appellate brief;
however, this listing has not been formally included in the record, nor does it
conclusively demonstrate the true market value of the properties. See Gonzalez v.
Villarreal, 251 S.W.3d 763, 777 n.17 (Tex. App.–Corpus Christi 2008, pet. dism‘d w.o.j.)
(holding that the attachment of documents as exhibits or appendices to appellate briefs
16
is not formal inclusion in the appellate record); Nguyen v. Intertex, Inc., 93 S.W.3d 288,
293 (Tex. App.–Houston [14th Dist.] 2002, no pet.) (same); Till v. Thomas, 10 S.W.3d
730, 733-34 (Tex. App.–Houston [1st Dist.] 1999, no pet.) (same). The record contains
appraisals for each of the properties listed in the inventory, and the market values
stated in the appraisals were used to compute the value of Caroline‘s estate and the
portion of the estate each of the heirs would receive. In fact, the Tennessee property,
which is the focus of the appraisal dispute, was appraised by the Knox County,
Tennessee appraisal district and yielded an appraised value of $108,500. Jarvis has
not submitted for inclusion in the record an appraisal disputing the $108,500 value
calculated by the Knox County, Tennessee appraisal district. Based on this information,
we cannot say that the trial court erred in approving of the appraisals provided.
Jarvis also contends that Frank improperly sold real property contained in the
estate without the Cameron County court‘s approval. In making this contention,
however, she does not cite to any portion of the record substantiating her claim. See
TEX. R. APP. P. 38.1(i). In signing the ―Order Approving Account for Final Settlement,‖
the Cameron County court approved the sale of real property located at 1144 Camwood
Place in Brownsville, with the proceeds of the sale intended ―to pay any expenses or
claims against [the] estate. Any funds left over will be distributed between the three
heirs.‖ Jarvis does not point us to evidence in the record demonstrating that the real
property located at 1185 Parkwood Place, which was awarded to her, was sold prior to
the probating of Caroline‘s will. In fact, a property search of the Cameron County
Appraisal District‘s database—a copy of the property search is included in the record—
shows that Jarvis has 100% ownership of real property located at 1185 Parkwood Place
17
in Brownsville, which undermines Jarvis‘s contention that the property had been sold
and she only possessed a virtually valueless warranty deed.
In light of the foregoing, we cannot say that the Cameron County court erred in
signing the ―Order Approving Inventory, Appraisement[,] and List of Claims.‖
Accordingly, we overrule Jarvis‘s second and third issues.
IV. THE FINAL DISTRIBUTION OF THE ESTATE AND CAROLINE’S INTENT,
AS EXPRESSED IN HER “LAST WILL AND TESTAMENT”
In her fourth issue, Jarvis asserts that the ―Order Approving Account for Final
Settlement‖ does not comport with Caroline‘s intent, as expressed in her ―Last Will and
Testament,‖ which stated that each of the three heirs to the estate would receive equal
shares of the estate. Specifically, Jarvis alleges that she received nothing of value from
the estate and that Frank and John received property, including the Tennessee
property, which purportedly has a ―probable sale market values [sic] of greater than $4
[m]illion.‖ Frank and John respond that the trial court did not err in approving the final
distribution because it resulted in each of the heirs receiving an equal share of the
estate, which reconciled with Caroline‘s intent, as expressed in her will.
In construing a will, the court‘s focus is on the testator‘s intent. San Antonio Area
Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). Determining a testator‘s intent from
the four corners of a will requires a careful examination of the words used. Id. If the will
is unambiguous, a court should not go beyond specific terms in search of the testator‘s
intent. Id. The testator‘s intention must be ascertained by viewing the will in its entirety.
Johnson v. McLaughlin, 840 S.W.2d 668, 672 (Tex. App.–Austin 1992, no pet.);
Disabled Am. Veterans v. Mullin, 773 S.W.2d 408, 410 (Tex. App.–San Antonio 1989,
no pet.). ―‘If this [intent] can be ascertained from the language of the instrument [will],
18
then any particular paragraph of the will which, considered alone, would indicate a
contrary intent, must yield to the intention manifested by the whole instrument.‘‖ Welch
v. Straach, 531 S.W.2d 319, 321 (Tex. 1975) (quoting McMurray v. Stanley, 69 Tex.
227, 6 S.W. 412, 413 (1887)); Johnson, 840 S.W.2d at 672; Mullin, 773 S.W.2d at 410.
Absent ambiguity, the construction of a will is a matter of law, which we review de novo.
Armstrong v. Hixon, 206 S.W.3d 175, 180 (Tex. App.–Corpus Christi 2006, pet. denied);
Penland v. Agnich, 940 S.W.2d 324, 326 (Tex. App.–Dallas 1997, writ denied). An
ambiguity exists only when the will uses a word that is open to more than one meaning.
Lang, 35 S.W.3d at 639; In re Estate of Hunt, 908 S.W.2d 483, 484-85 (Tex. App.–San
Antonio 1995, writ denied). Further, ―courts must not redraft wills to vary or add
provisions ‗under the guise of construction of the language of the will‘ to reach a
presumed intent.‖ Lang, 35 S.W.3d at 639 (quoting Shriner’s Hosp. for Crippled
Children of Tex. v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980)). We should only focus on
the ―meaning of the words she actually used.‖ Lang, 35 S.W.3d at 639.
Jarvis‘s fourth issue focuses on the following provision from Caroline‘s will:
III. DISPOSITION OF ESTATE
A. I give, devise[,] and bequeath all of the rest, residue[,] and
remainder of my estate to my children, FRANK E. FEILD,
JOHN (JACK) FEILD, and MARY FEILD JARVIS, in equal
shares; provided, however, that if a child of mine shall not then
survive me, but should leave issue then surviving me, such then
surviving issue shall take, per stirpes, the share that such
deceased child would have taken by surviving me, or if none if
then living, then said share shall be distributed, in equal shares,
to my then living children or their issue per stirpes, or if none of
my descendants is then living, then said share shall be
distributed as provided in the paragraph below.
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(Emphasis in original). The clear and unambiguous language of Caroline‘s will provides
that each of the children—Frank, John, and Jarvis—shall equally share the remainder of
Caroline‘s estate upon her death, provided that each of the children survived Caroline,
which was the case here. See id. The will also named Frank as executor of the estate.
In his role as executor, Frank submitted an inventory and appraisal of the estate, which
the trial court approved. In the inventory and appraisal, Frank stated that each of
Caroline‘s children should receive an equal share of the estate valued at $89,175.
Jarvis, in particular, was awarded real property located at 1185 Parkwood Place in
Brownsville, which, according to the appraisals contained in the record, is valued at
$89,175. Despite Frank‘s efforts, Jarvis sent letters to the Cameron County court
objecting to her award of the real property located at 1185 Parkwood Place. Jarvis
alleged that the property had been sold, and therefore, she was awarded property of no
value. Despite this allegation, Jarvis does not direct us to evidence in the record
demonstrating that the property she was awarded had indeed been sold.
Jarvis also objects to the market value appraisals obtained by Frank and
approved of by the trial court.9 Specifically, she complained about the appraisal of the
Tennessee property obtained from the Knox County appraisal district. She believed
that if the Tennessee property was appraised by a licensed real estate expert, the
property would be valued at approximately $2.2 million. The ―Order Approving Account
9
The record reflects that the real property and the majority of Caroline‘s personal property was
appraised and listed in the inventory and appraisals document filed by Frank and approved by the
Cameron County court. See TEX. PROB. CODE ANN. § 248 (Vernon Supp. 2010) (providing that the court
shall appoint disinterested persons to appraise the property contained in the estate). Clearly, Jarvis is
unhappy with what she considers low appraisals of the real property contained in the estate and seems to
suggest that appraisals of the property should continue until she receives a valuation of the property to
her liking. It appears that Jarvis also asserts that the Presidio County property should have been
appraised; however, the record contains an appraisal of the property conducted by Bette Lu Rogers, a
state licensed real estate appraiser.
20
for Final Settlement‖ specifically states that the Cameron County court took judicial
notice of Jarvis‘s letter objecting to the valuation of the Tennessee property.
Nevertheless, the record does not contain any evidence conclusively
demonstrating that the market value of the Tennessee property is more than $108,500.
On appeal, Jarvis includes a May 30, 2010 listing from LoopNet.com, a website
apparently specializing in valuing real property, demonstrating that the Tennessee
property should be valued at $0 to $100,000 per acre. Using the larger number, Jarvis
argues on appeal that the Tennessee property is valued at $9.7 million (97 acres
multiplied by $100,000). This LoopNet.com listing, however, is not included in the
record and cannot be used to contradict the appraisal obtained from the Knox County
appraisal district. See Gonzalez, 251 S.W.3d at 777 n.17; Nguyen, 93 S.W.3d at 293;
Till, 10 S.W.3d at 733-34. Furthermore, even if we were to consider the LoopNet.com
listing as formally included in the appellate record, this listing is not specific enough to
indicate the precise value of the property. It states that the market value of agricultural
property in the relevant part of Tennessee ranges from $0 to $100,000 per acre
between the years 2005 and 2009, meaning that the property at various points in time
could have been worth between $0 and $9.7 million. Based on the record before us, we
cannot say that the trial court erred in approving the valuation for the Tennessee
property to be $108,500.
Because the record contains uncontradicted evidence that the market value of
the Tennessee property is $108,500 and that Jarvis received unencumbered real
property valued at $89,175, we cannot say that Jarvis has met her burden to
demonstrate that the Cameron County court erred in approving the distribution of
21
Caroline‘s estate. See Marlin v. Kelly, 678 S.W.2d 582, 586 (Tex. App.–Houston [14th
Dist.] 1984), aff’d, 714 S.W.2d 303 (Tex. 1986); see also In re Estate of Cook, Nos. 2-
08-003-CV, 2-08-004-CV, 2009 Tex. App. LEXIS 9094, at *6 (Tex. App.–Fort Worth
Nov. 25, 2009, no pet.) (mem. op.) (―When . . . a will is plain in its terms and
unambiguous in its meaning as to the lawful intentions of the testator, it is a legal
question for the court to interpret the will and carry out the testator‘s wishes.‖). Based
on our review of the record, it appears that each of the children received an equal
$89,175 share of the estate and that such a distribution coincides with Caroline‘s intent,
as expressed in her ―Last Will and Testament.‖ As a result, we overrule Jarvis‘s fourth
issue.
V. CONCLUSION
We affirm the judgment of the trial court.
________________________
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
21st day of December, 2010.
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