in the Estate of Edythe A. Miller

NO. 12-12-00363-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE
IN THE ESTATE OF
§ COUNTY COURT AT LAW #2
EDYTHE A. MILLER
§ GREGG COUNTY, TEXAS
OPINION
Richard Miller appeals the trial court’s denial of his amended claim in the probate
proceeding of his mother, Edythe A. Miller. Richard’s siblings, Mary Margaret Miller and Joseph
Michael Miller, are the appellees. In two issues, Richard contends the trial court’s letter ruling
precluded his opportunity to request further findings of fact and conclusions of law and the trial
court erred in denying the amended claim. We affirm.
BACKGROUND
Richard’s mother, Edythe, suffered a debilitating stroke in 1993. Richard assumed the
responsibility of providing twenty-four hour care for Edythe after his father died in February 1997.
Edythe died on April 2, 2005, and almost four years later, on March 31, 2009, Richard filed an
application to probate her will. The following year, Richard and his sister were appointed
independent coexecutors of Edythe’s estate. Richard filed a claim for $75,661.29 and a
memorandum of allowance in Edythe’s probate proceeding. Appellees objected, in part, that the
claim was barred by limitations. Richard then filed an amended claim for $76,829.29 and a
memorandum of allowance.
Attached to both claims were financial records relating to Richard’s assertion that he and
his mother regularly loaned each other money after his father died. Richard’s claim was for the
amount by which his loans to Edythe exceeded her loans to him.1 In addition, Richard attached as
Exhibit B to his amended claim the following agreement that he signed individually and as
Edythe’s attorney in fact pursuant to a durable power of attorney she executed prior to her stroke.
EXHIBIT B
Agreement for Reimbursement
We, Edythe A. Miller and Richard E. Miller (the parties)[,] enter into this agreement for
reimbursement under the following terms and conditions.
The parties have loaned funds to each other to facilitate and provide for the day-to-day health care
and maintenance of Edythe A. Miller. The necessity for these loans to continue throughout the
natural lifetime of Edythe A. Miller is anticipated. The amount and frequency of the loans is
indeterminate, but shall be made as necessary to provide for the health care and maintenance of
Edythe A. Miller.
It is agreed that following the death of either party to this agreement the net sum loaned by, between,
or on behalf of each party to the other shall be calculated and compared. The greater sum loaned to
one party by the other, if any, shall be reimbursed and payable by the other party or the other party’s
estate within ten (10) years from the date of death of Edythe A. Miller or Richard E. Miller,
whichever first occurs. These loans shall bear no interest.
Signed on February 23, 1999.
Edythe A. Miller
By: /s/Richard E. Miller
Richard E. Miller, Attorney-In-Fact
/s/Richard E. Miller
Richard E. Miller
After a hearing, the trial court, by separate orders, denied Richard’s original and amended
claims. Richard filed a request for findings of fact and conclusions of law. The trial court did not
comply, and Richard filed a notice of past due findings and conclusions. Again, the trial court did
not comply, and Richard filed a notice of appeal to this court.
REQUEST FOR ABATEMENT
As a preliminary matter, we address Richard’s second issue, in which he asserts that the
trial court erred in failing to respond to his request for findings of fact and conclusions of law and
1
The documentation attached to Richard’s amended claim shows Richard made “loans” to Edythe in the sum
of $470,289.81, and Edythe made “loans” to Richard in the sum of $393,460.52. Almost all of the loans were made
during the years 2000 through 2006, but some were made in 1998 and 1999.
2
his notice of past due findings and conclusions. Richard acknowledges that the trial court issued a
letter explaining its ruling, but argues that even if the letter constitutes findings, it is incomplete
and he was not allowed the opportunity to request additional findings. He asks that this appeal be
abated and the cause remanded for entry of formal findings and conclusions, which would afford
him the opportunity to review them and request additional findings as needed.
Findings of Fact and Conclusions of Law
Following a bench trial, and within twenty days after the judgment is signed, any party may
request the trial court to file written findings of fact and conclusions of law. TEX. R. CIV. P. 296.
The trial court must file its findings and conclusions within twenty days after a timely request is
filed. TEX. R. CIV. P. 297. If the court fails to comply, the requesting party may file a notice of
past due findings within thirty days of the original request. Id.
There is a general presumption of validity extending to the judgment of a court of general
jurisdiction, regardless of whether the judgment is the result of a jury trial or a bench trial. Vickery
v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 250 (Tex. App.–Houston [14th Dist.] 1999, pet.
denied). To limit the scope of the presumption, it is advantageous to the appellant to narrow the
issues on appeal by requesting findings of fact and conclusions of law after a bench trial. Id. The
court’s findings of fact form the basis of the judgment upon all grounds of recovery and defenses.
TEX. R. CIV. P. 299.
When a court makes fact findings but inadvertently omits an essential element of a ground
of recovery or defense, the presumption of validity will supply by implication any omitted
unrequested element that is supported by evidence. See TEX. R. CIV. P. 299. To prevent a missing
element from being deemed on appeal, an appellant may request additional findings on omitted
elements. See TEX. R. CIV. P. 298. The failure to do so waives the party’s right to complain on
appeal about a presumed finding. Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 408 (Tex.
App.–Dallas 2006, no pet.).
Findings of fact and conclusions of law need not be in any particular form. Moore v. Jet
Stream Invs., Ltd., 315 S.W.3d 195, 208 (Tex. App.–Texarkana 2010, pet. denied). But they must
be in writing and filed with the clerk of the court. TEX. R. CIV. P. 296. It is possible for findings
and conclusions to be contained in a trial court’s letter to counsel if the letter is filed of record.
Moore, 315 S.W.3d at 208.
3
Findings of fact in a case tried to the court have the same force and dignity as the findings
made by a jury in its verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).
They are binding on an appellate court unless the contrary is established as a matter of law, or
there is no evidence to support the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.
1986). The trial court’s findings of fact are reviewable for legal and factual sufficiency of the
evidence to support them by the same standards that are applied in reviewing evidence supporting
a jury’s answer. Anderson, 806 S.W.2d at 794.
We review a trial court’s conclusions of law de novo. State v. Heal, 917 S.W.2d 6, 9 (Tex.
1996). When performing a de novo review, we exercise our own judgment and redetermine each
legal issue. Sembera v. Petrofac Tyler, Inc., 253 S.W.3d 815, 822 (Tex. App.–Tyler 2008, pet.
denied). To make this determination, we consider whether the conclusions are correct based on
the facts from which they are drawn. Potcinske v. McDonald Prop. Invs., Ltd., 245 S.W.3d 526,
529 (Tex. App.–Houston [1st Dist.] 2007, no pet.).
Effect of the Trial Court’s Letter
After the hearing on Richard’s amended claim, the trial court sent counsel2 a letter
identifying the matters it had considered. The letter bore the same date as the court’s order
denying Richard’s original claim, and the order is referenced in the letter. Four days later, the trial
court signed an order denying Richard’s amended claim. The letter and both orders were filed of
record on the same date.
The trial court’s letter informed counsel that it was disapproving Richard’s amended claim.
After reciting a brief procedural history, the court stated that “absent any tolling of the claims as
presented, any amounts in the Claim prior to July 13, 2006, would be barred by limitations.”
The trial court stated further that, as to the items prior to July 13, 2006, for which Richard
seeks reimbursement, (1) it “finds” the Agreement for Reimbursement benefited Richard and
“would be self-dealing”; (2) the power of attorney does not specifically authorize acts that benefit
the agent acting under it; and (3) it “finds” that the agreement is unenforceable and did not toll the
running of limitations.3 As to the items after July 13, 2006, the court stated that (1) it “finds” the
Agreement for Reimbursement does not contain sufficiently specific terms to bind Edythe to pay a
2
Richard, who is an attorney, represented himself at trial.
3
The agreement provides that reimbursement is payable by the party owing it or that party’s estate “within
ten (10) years from the date of death of Edythe A. Miller or Richard E. Miller, whichever first occurs.” The
limitations period for a suit for debt is four years. TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)(3) (West 2002).
4
loan; (2) the act of an agent executing an agreement on behalf of the principal “creating an
indebtedness in favor of the agent[] would also constitute self-dealing”; and (3) a specific
provision in the power of attorney is necessary to authorize “such an act” benefiting the acting
agent. The court also cited controlling authority.
In reviewing the case law, we note that Cherokee Water Co. v. Gregg County Appraisal
Dist., 801 S.W.2d 872 (Tex. 1990), is frequently cited for the proposition that a trial court’s
prejudgment letter is not competent evidence of the basis for its judgment. In that case, the trial
court sent the parties a prejudgment letter indicating it had considered certain evidence in making
its ruling. Id. at 878. However, the formal findings of fact and conclusions of law, filed after the
judgment was signed, included no reference to the evidence. Id. Cherokee Water contended that
the prejudgment letter was a finding of fact, and that the letter and the formal findings and
conclusions should be read together. See id.
The supreme court noted that the formal findings and conclusions did not state whether the
trial court considered the evidence. Id. Therefore, the court reasoned, the trial court could have
disregarded the evidence at the time the judgment was actually signed. Id. Consequently, the
court held that the prejudgment letter was not a finding of fact as contemplated by rules of civil
procedure 296 through 299. Id.
Here, the trial court filed only a prejudgment letter. Thus, Cherokee Water is factually
distinguishable from the case at bar. Richard contends, however, that the letter cannot constitute
findings and conclusions because it contains no statement indicating that the trial court intended it
for that purpose.
We are aware that some courts have considered a statement of such an intent to be a
significant factor in distinguishing Cherokee Water. See, e.g., Kendrick v. Garcia, 171 S.W.3d
698, 702 (Tex. App.–Eastland 2005, pet. denied) (distinguishing Cherokee Water because trial
court in Kendrick had not filed formal findings and conclusions and letter to parties contained
statement that trial court intended appellate courts to rely on letter as basis for trial court’s
decision). But we have determined that Cherokee Water does not apply here. And we know of no
case, and Richard has not cited any case, holding that a statement of intent is required for a trial
court’s prejudgment letter to constitute findings of fact and conclusions of law.
In sum, the trial court’s prejudgment letter provides an extensive explanation of the basis
for its ruling, which satisfies the purpose of Rule 296. See IKB Indus. (Nigeria) Ltd. v. Pro-Line
5
Corp., 938 S.W.2d 440, 442 (Tex. 1997) (holding that purpose of Rule 296 is to give party a right
to findings of fact and conclusions of law on issues adjudicated after trial on merits to court); see
also TEX. R. CIV. P. 206. Although the letter was dated four days prior to the order denying
Richard’s amended claim, the letter and the order were filed of record on the same date (July 23,
2012). And the trial court did not file formal findings of fact and conclusions of law, even after
Richard requested them and filed a notice of late findings and conclusions. Based upon these
facts, we hold that the trial court’s letter contains its findings of fact and conclusions of law
pertaining to the denial of Richard’s amended claim. See TEX. R. CIV. P. 296; cf. Rose v.
Woodworth, No. 04-08-00382-CV, 2009 WL 97256, at *1 (Tex. App.–San Antonio Jan. 14, 2009,
no pet.) (mem. op.) (holding Rule 296 satisfied where trial court did not file requested formal
findings and conclusions but issued postjudgment letter providing reasons for court’s order and
filed of record).
Upon receiving the trial court’s letter, Richard could have requested additional findings of
fact and conclusions of law if he believed they were warranted. See TEX. R. CIV. P. 298.
However, the record does not reflect that he availed himself of that opportunity. Therefore, he is
precluded from complaining of any implied findings presumed on appeal in support of the trial
court’s judgment. See Vickery, 5 S.W.3d at 254. We overrule Richard’s second issue.
DENIAL OF AMENDED CLAIM
In his first issue, Richard contends that the trial court erred by denying his amended claim.
He concedes that he owed Edythe a fiduciary duty as her attorney in fact under the power of
attorney, but he maintains that the record contains no evidence that he engaged in self-dealing.
Consequently, he argues, there is no evidence to support the trial court’s conclusion that the
Agreement for Reimbursement is unenforceable because of self-dealing.
The Hearing
At the hearing on Richard’s amended claim, the trial court took judicial notice of the
amended claim and its supporting documents, including the Agreement for Reimbursement.
Richard also testified. He recounted that Edythe had a stroke in 1993, which left her “completely
debilitated.” Initially, Richard’s father made arrangements for Edythe’s care (and provided some
of it himself). However, he died in February 1997, leaving “quite a bit in assets.” Richard then
began managing Edythe’s affairs under the power of attorney she had executed shortly before her
stroke. This included making arrangements for her twenty-four hour care.
6
Richard testified that “[a]s time went on, the funds became more and more critical. . . .”
He stated that “when payroll would come up, there would not be enough funds in [Edythe’s]
accounts to handle that. There might be funds like in a CD or in some other sort of investment,
and there was no ready cash to do that. So I would loan Opelika Home Healthcare [the
corporation Richard created to employ home healthcare workers for Edythe] the money to make
the payroll.” He explained further that “[f]rom time to time, there would be extra money in her
account, when I would cash in a CD, which I did from time to time. And these loans continued
back and forth, back and forth during her life.”
Appellees argued to the trial court that Richard had no authority to execute the Agreement
for Reimbursement. They contended the agreement was “invalid or ineffective” because, by
executing it, Richard exceeded his authority under the power of attorney and engaged in
self-dealing. Specifically, they complained of the loans Richard made to himself from Edythe’s
funds and the tolling provision, which gave Edythe’s estate ten years to pay the sum Edythe owed
Richard.
The trial court requested that Richard “address the self-dealing issue” and posed the
following question: “Is an agreement you signed as agent for your mother permitting loan
transactions and tolling of any loan transactions, collection on them, would that be self-dealing? If
it is[,] would that be permitted under the power of attorney?” In response, Richard told the court
that it would be self-dealing if he owed the estate $76,000.00, but because Edythe owed him
money instead, “no, it would not be self-dealing at all.”
Fiduciary Duty and Self-Dealing
“Unless otherwise agreed, an agent is subject to a duty to his principal to act solely for the
benefit of the principal in all matters connected with his agency.” Johnson v. Brewer &
Pritchard, P.C., 73 S.W.3d 193, 200 (Tex. 2002) (quoting RESTATEMENT (SECOND) OF AGENCY
§ 387 (1958)). Or as more recently formulated, an agent’s duty is “to act loyally for the principal’s
benefit in all matters connected with the agency relationship.” RESTATEMENT (THIRD) OF AGENCY
§ 8.01 (2006). Thus, absent the principal’s consent, an agent must refrain from using his position
or the principal’s property to gain a benefit for himself at the principal’s expense. See Tex. Bank
& Trust Co. v. Moore, 595 S.W.2d 502, 508-09 (Tex. 1980); Mims-Brown v. Brown, 428 S.W.3d
366, 374 (Tex. App.–Dallas 2014, no pet.); see also RESTATEMENT (THIRD) OF AGENCY § 8.01
cmt. b (2006). A “benefit” can be an advantage, a privilege, profit, or gain. BLACK’S LAW
7
DICTIONARY 166 (8th ed. 2004). If the agent gains a benefit from the unauthorized use of his
position or the principal’s property, he engages in self-dealing. See Tex. Bank & Trust, 595
S.W.2d at 508-09; see also Cohen v. Hawkins, No. 14-07-00043-CV, 2008 WL 1723234, at *6
(Tex. App.–Houston [14th Dist.] Apr. 15, 2008, pet. denied) (mem. op.).
When an agent engages in self-dealing in a transaction with his principal, the transaction is
presumptively unfair and invalid. See Tex. Bank & Trust, 595 S.W.2d at 507; see also Chien v.
Chen, 759 S.W.2d 484, 495 (Tex. App.–Austin 1988, no writ) (holding that all transactions
between fiduciary and principal are presumptively fraudulent and void). This places the burden on
the fiduciary to rebut the presumption by establishing the fairness of the transaction with his
principal. Tex. Bank & Trust, 595 S.W.2d at 509; Lesikar v. Rappeport, 33 S.W.3d 282, 298
(Tex. App.–Texarkana 2000, pet. denied); see also Lee v. Hasson, 286 S.W.3d 1, 21 (Tex. App.–
Houston [14th Dist.] 2007, pet. denied) (holding that benefiting fiduciary must show he acted in
good faith and that transactions were fair and equitable).
The Agreement as Self-Dealing
Richard first contends that his mere execution of the Agreement for Reimbursement cannot
support the trial court’s conclusion that he engaged in self-dealing. We disagree. By executing the
Agreement for Reimbursement in his individual and representative capacities, Richard engaged in
a transaction with his principal. See BLACK’S LAW DICTIONARY 1535 (8th ed. 2004) (defining
“transaction” as “the act or an instance of conducting business or other dealings, esp[ecially], the
formation, performance, or discharge of a contract”). A contract between an agent and his
principal is subject to the same scrutiny as any other transaction between them. Cf. Keck, Mahin
& Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 700 (Tex. 2000) (noting
that contracts between attorneys and their clients negotiated during existence of attorney-client
relationship are closely scrutinized; because relationship is fiduciary in nature, such contracts are
presumed unfair or invalid); Archer v. Griffith, 390 S.W.2d 735, 739 (Tex. 1984) (applying same
rule to contract between attorney and client relating to compensation).
Richard contends further that he could not have engaged in self-dealing because the
agreement includes a recital that its sole purpose is to facilitate and provide for Edythe’s health
care and maintenance. By this argument, Richard appears to argue that the statement of purpose is
conclusive, and thus prohibits a reviewing court from considering the substance of the agreement.
We decline to adopt such a rule. Cf. Keck, 20 S.W.3d at 700 (“bare recitation” that client was
8
advised in writing that independent representation would be appropriate before execution of
release in favor of law firm insufficient to rebut presumption of unfairness or invalidity attaching
to release).
Richard also asserts that the agreement assures “he would be repaid for [his mother’s
expenses] at some point either during her lifetime as money became available or on her death from
any money remaining in the estate.” Thus, he argues that the “loans” were actually
“reimbursement.”
We give contract terms their plain and ordinary meaning unless the document indicates the
parties intended a different meaning. Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294
S.W.3d 164, 168 (Tex. 2009). In the usual sense, a “loan” is “a sum of money lent at interest” or
“something lent for temporary use.” WEBSTER’S II NEW RIVERSIDE UNIVERSITY DICTIONARY 700
(1984). “Reimbursement,” on the other hand, means “repayment.” Id. at 991. The Agreement for
Reimbursement provides for “loans” as long as both Richard and Edythe were alive.
“Reimbursement” was payable only after the death of either Richard or Edythe, whichever
occurred first. Nothing in the agreement suggests that anything other than the common ordinary
meaning of the terms was intended.
And finally, Richard maintains there must be evidence that he used the agreement to
benefit himself at Edythe’s expense and argues that the record contains no evidence of that fact.
The issue before the trial court was whether Richard used his position as Edythe’s agent to
gain a benefit at Edythe’s expense by executing the agreement. In addition to Richard’s testimony,
the court had the Agreement for Reimbursement before it. Under the terms of the agreement,
Richard was authorized to make loans to himself from Edythe’s funds during the time Edythe and
Richard were both alive. These loans were to bear no interest, and therefore Edythe would not be
compensated for Richard’s use of her funds. This provision benefited Richard at Edythe’s
expense.
The trial court gave Richard the opportunity to explain why the Agreement for
Reimbursement was fair to Edythe. See, e.g., Tex. Bank & Trust, 595 S.W.2d at 509. Richard
expressed that there would have been self-dealing only if he had owed Edythe money at her death;
i.e. if he had borrowed more from Edythe than she had borrowed from him. But the trial court
inquired about the execution of the agreement, not its performance. Richard did not explain to the
court why the agreement was fair to Edythe. Therefore, Richard failed to rebut the presumption
9
that the agreement was unfair and invalid. See Tex. Bank & Trust, 595 S.W.2d at 509; Lesikar,
33 S.W.3d at 298. Nevertheless, Richard asserts that the power of attorney authorized him to
execute the agreement. Appellees recognize that Edythe could have included a provision in her
power of attorney that authorized her attorney in fact to engage in self-dealing, but contend she did
not do so.
Powers of Attorney Generally
A power of attorney creates an agency relationship, which is a fiduciary relationship as a
matter of law. Vogt v. Warnock, 107 S.W.3d 778, 782 (Tex. App.–El Paso 2003, pet. denied);
Plummer v. Estate of Plummer, 51 S.W.3d 840, 842 (Tex. App.–Texarkana 2001, pet. denied).
“When persons enter into fiduciary relations[,] each consents, as a matter of law, to have his
conduct towards the other measured by the standards of the finer loyalties exacted by courts of
equity.” Tex. Bank & Trust, 595 S.W.2d at 508. Consequently, a fiduciary owes his principal a
high duty of good faith, fair dealing, honest performance, and strict accountability. Sassen v.
Tanglegrove Townhouse Condo. Ass’n, 877 S.W.2d 489, 492 (Tex. App.–Texarkana 1994, writ
denied).
“[A]n agent’s duties of performance to the principal are subject to the terms of any contract
between them.” Nat’l Plan Adm’rs, Inc. v. Nat’l Health Ins. Co., 235 S.W.3d 695, 702 (Tex.
2007) (quoting RESTATEMENT (THIRD) OF AGENCY § 8.07 cmt. a (2006)). Thus, the language of a
power of attorney determines the extent of an agent’s authority. First Nat’l Bank in Dallas v.
Kinabrew, 589 S.W.2d 137, 145 (Tex. Civ. App.–Tyler 1979, writ ref’d n.r.e.). Unless otherwise
provided by statute or law, duties owed by an agent to his principal may be altered by agreement.
Nat’l Plan Adm’rs, Inc., 235 S.W.3d at 700.
When we interpret a power of attorney, we construe the document as a whole in order to
ascertain the parties’ intentions and rights. Kinabrew, 589 S.W.2d at 145. In determining the
limits of an agent’s authority, we apply two well established rules of construction set forth by the
Texas Supreme Court. First, the meaning of the general words in the document will be restricted
by the context and construed accordingly. Gouldy v. Metcalf, 12 S.W. 830, 831 (Tex. 1889).
Second, the authority will be construed strictly 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. Id.
10
Under these rules of construction, powers of attorney, unlike deeds and wills, are to be
strictly construed, and authority delegated is limited to the meaning of the terms in which it is
expressed. Avis v. First Nat’l Bank of Wichita Falls, 174 S.W.2d 255, 259 (Tex. 1943); Frost v.
Erath Cattle Co., 17 S.W. 52, 54 (Tex. 1891). And where there is a “very comprehensive” grant
of general power and an enumeration of specific powers, the established rules of construction limit
the authority derived from the general grant of power to the acts authorized by the language
employed in granting the special powers. Gouldy, 12 S.W.at 831. As this court has previously
held, a power of attorney is to be strictly construed to limit the authority of the attorney in fact.
Kinabrew, 589 S.W.2d at 145. The construction of an unambiguous power of attorney is a
question of law. Id. at 146.
Edythe’s Power of Attorney
The power of attorney Edythe signed includes an extensive list of powers Richard could
exercise as her attorney in fact, including the power to borrow money. In addition, the document
includes a general statement that Richard was appointed as Edythe’s “lawful attorney . . . in [her]
name, place, and stead, to act in, manage, and as [her] act and deed, to do and execute . . . every
act, deed or thing [Edythe] could do or execute. . . .” Richard contends this power of attorney was
“a broad one” and established Edythe’s intention to grant to her agent full power to act on her
behalf. He asserts that his power to borrow money authorized him to execute the Agreement for
Reimbursement, which allowed Edythe to borrow money from him at no interest and allowed him
to recoup the money from her estate.
As pertinent here, “borrow” means “to receive something on loan with the understanding of
returning it or its equivalent.” WEBSTER’S II NEW RIVERSIDE UNIVERSITY DICTIONARY 191
(1984). Conversely, “loan” or “lend” means “to give or allow the use of (something) temporarily
on the condition that it or its equivalent will be returned.” Id. at 686, 700. Simply put, borrowing
and lending are not the same, and a general grant of power cannot enlarge the power to borrow so
that it includes the power to loan. See Gouldy, 12 S.W.at 831. Therefore, as Edythe’s agent under
the power of attorney, Richard had neither the power to make, nor the power to execute an
agreement authorizing him to make, loans to himself from Edythe’s funds.
In further support of his argument, Richard cites Neill v. Kleiber, 112 S.W. 694 (Tex. Civ.
App. 1908). In that case, the agent named in a power of attorney was authorized to “sell, contract
and convey all or any part” of a specified tract of land. Id. at 695. He also was granted “full
11
power by this to do with the said land as if the same was his own property.” Id. But the language
in Edythe’s power of attorney is not the “functional equivalent” of the language in Neill. See
Cohen, 2008 WL 1723234, at *6 (holding that language authorizing an agent to act “in my name,
place and stead in any way which I myself could do” is not functional equivalent of language in
Neill). Therefore, Neill is inapposite.
Conclusion
The trial court concluded that (1) an agent’s executing an agreement on behalf of the
principal creating an indebtedness “in favor of the principal would . . . constitute self-dealing; (2)
Richard engaged in self-dealing; and (3) the Agreement for Reimbursement was unenforceable
because of his self-dealing. Because the court did not specify the precise benefit Richard received,
we imply a finding that the provision in the Agreement for Reimbursement authorizing Richard to
make interest-free loans to himself from Edythe’s funds benefited Richard. In light of this fact, the
above conclusions are correct. Additionally, the court concluded that Edythe’s power of attorney
did not specifically authorize acts that would benefit the agent acting under it. This conclusion is
correct as well. Accordingly, we overrule Richard’s first issue.
DISPOSITION
Having overruled both of Richard’s issues, we affirm the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered August 13, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
12
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 13, 2014
NO. 12-12-00363-CV
IN THE ESTATE OF EDYTHE A. MILLER
Appeal from the County Court at Law No. 2
of Gregg County, Texas (Tr.Ct.No. 2009-0119-P)
THIS CAUSE came to be heard on the oral arguments, appellate record
and briefs filed herein, and the same being considered, it is the opinion of this court that there
was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, RICHARD E. MILLER, for which execution may issue, and that this
decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.