Opinion
No. 04-05-00055-CV
Delivered and Filed: March 15, 2006.
Appeal from the 229th Judicial District Court, Duval County, Texas, Trial Court No. DC-02-286, Honorable Alex W. Gabert, Judge Presiding.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice; Phylis J. SPEEDLIN, Justice Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Appellants, Alejandro and Angelica Lopez, Serafin Trevino and Connie Moseley, appeal the judgment entered against them in favor of appellee, Gloria Garcia Lo pez. The jury found Gloria Lopez, who intervened in the original suit between the appellants, is the true owner of the gold coins at issue. We affirm the judgment of the trial court.
Factual Background
This case involves the ownership of several hundred gold coins found in October 2002 buried under a home at 300 East St. Joseph Street in San Diego, Texas. It is undisputed that Gloria Lopez' father, Dr. Jose Garcia, built the home in 1912. The home was built on a solid stone perimeter foundation with an approximately twenty-four inch crawl space between the ground and the flooring of the home. The only access to the crawl space under the home was through a trap door located in the kitchen. Dr. Garcia resided there until 1924, and continued using the home as an office until 1929. The home was then used as a residence for two of Dr. Garcia's sisters who were unmarried and without children. After that time, it was maintained by a caretaker and several family members occupied the house intermittently. The home remained Dr. Garcia's property until his death in 1964, at which time it passed to his daughter, Gloria Lopez, under the terms of his will. In 1976, Gloria Lopez sold the home to Alejandro and Angelica Lopez for $15,000; the deed did not contain any written reservation of gold or minerals. Alejandro Lopez is the godson of Gloria Lopez' husband, Hector Lopez. There is no relation, however, between Dr. Garcia and Alejandro and Angelica Lopez.
Dr. Garcia was married twice and had two children. His first wife died within a year of giving birth to his first child, Eligio Garcia Canales. Eligio was mentally disabled and was cared for by his family his entire life. After the death of his first wife, Dr. Garcia married Tomasita Martinez Garcia in 1924. Tomasita had three children from a prior marriage, one of whom was Raul Garcia. In 1925, Gloria Garcia Lopez was born to Dr. Garcia and Tomasita. Tomasita later died in 1962. When the coins were found in 2002, Gloria was Dr. Garcia's only surviving child.
Eligio never married and never had children; he died in 1997.
Gloria Lopez testified that in the 1940's, her father told her on more than one occasion about gold coins buried under the house, and told her to use them if needed to care for her half brother, Eligio. She testified that she considered the coins to be a gift to her, due to the conversations with her father. She also testified that the coins were hers by inheritance since she was Dr. Garcia's only heir. Dr. Garcia's will left his entire estate exclusively to Gloria. The will did not specifically list the gold in its inventory of assets, but it contained a clause stating that the inventory list was not exhaustive. The will also specifically stated that Dr. Garcia expected Gloria to care for Eligio throughout his lifetime. Gloria never saw the coins, nor did she personally go under the house to look for them. Her husband, Hector, and her half brother, Raul, searched for the coins under the house but never found them. Hector testified that he and Raul used digging tools and a metal detector to look for the gold many times, but to no avail. Raul's wife, Frances Fuentes Garcia, also testified and corroborated their searches.
Alejandro Lopez, who bought the home from Gloria Lopez in 1976, testified that his father gave him the gold coin collection in October 1987. He testified that the collection contained about 570 coins in denominations of $20, $10, $5, and $2.50. When he started remodeling the home, Alejandro buried the gold coins under the ground in the kitchen. Alejandro testified that before he buried them, they were kept in a safe in the home, but fear that his son, a drug addict, would open the safe and steal them caused him to move the coins underground. Alejandro testified that he and his wife later hired Serafin Trevino to do plumbing work in the home, including the repair of the sewer pipes under the kitchen and bathroom. On October 16, 2002, according to Alejandro's testimony, he went under the kitchen floor and discovered the gold coins were missing. Alejandro went to Trevino's home to retrieve the coins. Trevino admitted taking them and returned them to Alejandro. He testified that 160 to 170 coins were missing.
Serafin Trevino testified that Alejandro Lopez hired him in October 2002 to replace all the sewer lines from his house to the street, and he found the gold coins under a cast iron pipe under the house. Trevino put the coins in a coffee can and with the help of Connie Moseley, his long-time girlfriend, took the coins to his home. He sold some coins and gave others to family members. Alejandro came to Trevino's house at midnight about seven days after Trevino found the coins. After luring Trevino to come back to Alejandro's house by saying he had an emergency plumbing problem, Alejandro questioned Trevino about the "things" Trevino took from him. Trevino testified that although he did not believe the coins belonged to Alejandro, he gave him the coins because he felt threatened. Subsequently, Trevino and Moseley filed suit to recover the gold coins.
After learning that gold coins had been found at 300 East St. Joseph Street in San Diego, Texas, and that a suit had been filed, Gloria Lopez' husband Hector, who is an attorney, filed a suit in intervention on her behalf claiming that Gloria was the true owner of the coins. After a jury trial and judgment in favor of Gloria, notice of appeal was filed by both the plaintiffs, Trevino and Moseley, and the defendants, Alejandro and Angelica Lopez. The trial court rendered judgment in accordance with the jury's finding that Gloria Lopez is the true owner of the gold coins found under the premises owned by Alejandro and Angelica Lopez.
Analysis
On appeal, Alejandro and Angelica Lopez raise three issues: 1) whether Gloria can recover a verdict under facts not supported by her pleadings; 2) whether the trial court erred in denying their motion for judgment notwithstanding the verdict on the ground that Gloria failed to prove an inter vivos gift as a matter of law; and 3) whether Gloria had standing to bring suit in her individual capacity as "heir" for the recovery of property belonging to her father's estate. Trevino and Moseley raise four issues on appeal: 1) whether a person can sue in their individual capacity for the ownership of a deceased person's belongings; 2) whether the district court had jurisdiction to decide claims of inheritance by will or intestacy, or if the jurisdiction over such claims lies exclusively in the county court; 3) whether a party can prevail in trial on evidence not supported by the party's pleadings; and 4) whether the trial court's application of the wrong standard for admissibility of rebuttal testimony and its exclusion of the rebuttal testimony violated their rights. We will discuss the overlapping issues together.
Jurisdiction
We first address Trevino's and Moseley's challenge to the district court's jurisdiction to decide the issue of ownership of the gold coins. Subject matter jurisdiction is a question of law that we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Garza v. Rodriguez, 18 S.W.3d 694, 696 (Tex.App.-San Antonio 2000, no pet.). In conducting our review, we take as true the facts pled in Gloria's petition and determine whether the petition supports jurisdiction in the trial court. Garza, 18 S.W.3d at 696.
Citing only Probate Code § 4, Trevino and Moseley argue that the county courts have exclusive jurisdiction over all claims related to inheritance by will or intestacy; specifically, they assert that because Dr. Garcia's will was originally probated in the County Court of Jim Wells County, any action related to that estate would have to be taken in that court. Tex. Prob. Code Ann. § 4 (Vernon 2003). The controlling issue in this case, however, involves competing claims for title to personal property, not claims against the estate or pertaining to an open administration of the estate. See Seay v. Hall, 677 S.W.2d 19, 22 (Tex. 1984); see also Zamora v. Gonzalez, 128 S.W.2d 166, 168 (Tex.Civ.App.-San Antonio 1939, writ ref'd). Issues of title are general civil matters within the jurisdictional reach of district courts. See Garza v. Rodriguez, 18 S.W.3d 694, 697-98 (Tex.App.-San Antonio 2000, no pet.) (only when a title dispute is "incident to an estate" and part of a pending probate matter will it fall within the jurisdiction of the probate court). Additionally, after an independent administration of an estate is completed by filing a closing report verified by affidavit, the independent administration is terminated, the estate is closed and the probate court no longer has jurisdiction. Tex. Prob. Code Ann. § 151 (Vernon 2003). After an estate is closed, "persons dealing with properties of the estate, or with claims against the estate, shall deal directly with the distributees of the estate; and the acts of such distributees with respect to such properties or claims shall in all ways be valid and binding as regards the persons with whom they deal." Tex. Prob. Code Ann. § 151(b).
Section 4 states, "[t]he county court shall have the general jurisdiction of a probate court. It shall probate wills, grant letters testamentary and of administration, settle accounts of personal representatives, and transact all business appertaining to estates subject to administration, including the settlement, partition, and distribution of such estates." Tex. Prob. Code Ann. § 4.
Here, it is undisputed that Dr. Garcia's will was probated and his estate was closed more than forty years ago. An affidavit filed on October 21, 1964 gave a final accounting and closed the estate. Thus, when the appellants filed suit in district court, and Gloria intervened, there was no probate proceeding concerning Dr. Garcia's estate pending. Gloria's pleadings claim that she is the true owner of the gold. Dr. Garcia's will was admitted as evidence in this case solely to show the chain of title of the gold coins. Specifically, the will proved that if the gold was Dr. Garcia's at the time of his death, then Gloria as his sole beneficiary owned the gold after his death. Dr. Garcia's will stated, "whether real, personal or mixed," Gloria shall receive, "to the total and complete exclusion of any and all other persons," all of Dr. Garcia's property, including all items on the non-exhaustive inventory list. None of the appellants claim a right to ownership or possession of the gold coins based on the terms of the will or a common lineage with Dr. Garcia. It is undisputed that Gloria was the sole beneficiary of her father's estate. There was no issue raised in this case involving the settlement, partition or distribution of Dr. Garcia's estate, which was completed over forty years ago. See Reed v. Campbell, 476 U.S. 852, 855 (1986) (the state has an interest in the finality of an orderly distribution of a decedent's estate). Accordingly, Trevino's and Moseley's jurisdictional challenge is overruled.
The only question submitted to the jury in the uncontested jury charge was, "who do you find from a preponderance of the evidence to be the `true owner' of the gold coins made the basis of the litigation in question?"
In Neale v. Kirkland, the Dallas Court of Appeals held that a true owner may establish ownership by presenting evidence that the property belonged to an ancestor and after his death, to his heir. Neale v. Kirkland, 486 S.W.2d 165, 169 (Tex.Civ.App.-Dallas 1972, no writ).
Capacity and Standing
All the appellants also challenge Gloria's capacity and standing as an individual to intervene in this case. They argue that Gloria has neither "the capacity nor the standing to sue for a grievance against her father or against an interest of her father's estate," without reopening the administration of the estate and being appointed representative. However, Gloria did not file suit on behalf of, or against, her father's estate. Rather, she filed suit as an individual claiming ownership of the coins on her own behalf as sole beneficiary under her father's will. "When a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will, and all powers of appointment granted in such will, shall vest immediately in the devisees or legatees of such estate. . . ." Tex. Prob. Code Ann. § 37 (Vernon 2003); Kelly v. Marlin, 714 S.W.2d 303, 305-06 (Tex. 1986); Woodward v. Jaster, 933 S.W.2d 777, 780 (Tex.App.-Austin 1996, no writ). Additionally, as stated above, after an estate has closed, persons with claims against an estate should deal directly with the distributees of the estate. Tex. Prob. Code Ann. § 151(b). Obviously, the State has an interest in the finality of an orderly distribution of a decedent's estate. Reed, 476 U.S. at 855.
This issue was raised in the appellants' motion to strike Gloria's plea in intervention; however, the motion to strike was not verified as required by Tex. R. Civ. P. 93. Issues of standing can not be waived, but the issue of capacity can be waived. Coastal Liquids Transp., L.P. v. Harris Co. Appraisal Dist., 46 S.W.3d 880, 884 (Tex. 2001).
Because Gloria filed suit individually to litigate the issue of ownership and not on behalf of her father or his estate, her capacity and standing to sue can easily be found. An individual has standing to bring a suit if she has a justiciable interest in the suit and a real controversy exists between the parties that will be decided by the suit. Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001). A party has capacity to file suit if she has the legal authority to act. Coastal Liquids Transp., 46 S.W.3d at 884. A party must have both standing and capacity to bring a lawsuit. Id. Gloria, in her individual capacity, clearly has standing to bring suit to litigate her personal interest in the gold coins, whether by gift during her father's lifetime or as sole beneficiary under his will.
Variance
The appellants also argue that Gloria is not entitled to the judgment because the evidence presented at trial does not support her pleadings. It is true that pleadings must give fair notice of the claims involved. Tex. R. Civ. P. 47(a). A party must recover in the right in which she sues and upon proof of the facts stated in her pleadings. USX Corp. v. Salinas, 818 S.W.2d 473, 481 (Tex.App.-San Antonio 1991, writ denied). In determining whether a judgment conforms to the pleadings, we view the pleadings as a whole. Khalaf v. Williams, 814 S.W.2d 854, 858 (Tex.App.-Houston [1st Dist.] 1991, no writ). To be reversible error, a variance must be substantial, misleading, constitute surprise, and be a prejudicial departure from the pleadings. Salinas, 818 S.W.2d at 481; Brown v. American Transfer Storage Co., 601 S.W.2d 931, 937 (Tex. 1980). We find no such variance here. Gloria pled "true ownership" of the coins and presented evidence at trial to sustain that claim. Gloria was not required to include in her pleadings the specific manner in which that ownership was obtained. See Acevedo v. Droemer, 791 S.W.2d 668, 669 (Tex.App.-San Antonio 1990, no writ) (pleadings are sufficient if they give the defendant fair and adequate notice). The first sentence of Gloria's plea of intervention sets forth her claim that "she is, in fact, the true owner of the ancient gold coins." Later in her pleading, she claims to have received the coins as a bequest as "sole heir and devisee" of her father's will. She presented testimony at trial that substantiated her claim of "true ownership." Gloria testified that her father originally owned the gold coins; she was the sole "heir" of her father's estate; she knew of the gold's existence buried underneath the house at 300 East St. Joseph; and she and her father talked about the gold coins and established that, if needed, she should use them to take care of her mentally disabled half brother. Whether Gloria thought she was given the gold through an inter vivos gift, or through inheritance, is inconsequential to the fact that she pled and established her ownership of the gold. Therefore, appellants' issue based on a variance between the judgment and the pleadings is overruled.
Legal Sufficiency
Alejandro and Angelica Lopez also assert that the trial court erred in denying their motion for judgment notwithstanding the verdict. They argue that no evidence of probative value was presented to the jury to support its finding of a valid inter vivos gift to Gloria by her father. A trial court may properly grant a judgment notwithstanding the verdict if there is no evidence to support one or more of the jury findings on issues necessary to find liability. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). To determine whether there is no evidence to support a finding necessary to the jury's verdict, we view the evidence in the light most favorable to the jury's findings, considering only the evidence and inferences that support the jury findings and disregarding all evidence and inferences to the contrary. Id. If more than a scintilla of evidence supports the jury's findings necessary to the verdict, it must be upheld. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex. 1990).
Here, the jury specifically found by a preponderance of the evidence that Gloria is the "true owner" of the gold coins. The jury was not asked to make a finding regarding whether or not the coins were given to Gloria as an inter vivos gift, or whether or not they passed to her through inheritance. The jury was simply asked to determine who is the "true owner" of the gold coins. Therefore, in evaluating the legal sufficiency of the evidence, we only determine whether there was more than a scintilla of evidence to support the jury finding that Gloria is the true owner of the gold coins.
The only question submitted to the jury in the uncontested jury charge was, "who do you find from a preponderance of the evidence to be the `true owner' of the gold coins made the basis of the litigation in question?"
Ownership in found property cases is a question of fact for the jury. Neale, 486 S.W.2d at 169-70. The jury was properly instructed that "a claim of ownership as against a finder may be established by circumstantial proof of prior possession without evidence of how such ownership was originally acquired." Id. at 170; Cathey v. Shields, 385 S.W.2d 889, 892-93 (Tex.Civ.App.-Austin 1965, writ ref'd n.r.e.). The jury was further instructed that "`true ownership' may be inferred from possession, dominion, and other circumstances even though a possession is not continuous." To prove her father's original ownership of the gold coins, Gloria presented evidence that: (1) her father was the owner of the house where the coins were found at or about the time that the most recent coins were minted; (2) her father dealt in gold; (3) her father was a man with the means capable of acquiring gold; and (4) her father told her about the gold coins and urged her to use them to meet her obligation to support Eligio. To prove her claim of true ownership of the coins, Gloria presented evidence that she had received the coins from her father, either through the express provisions of his will (as his sole beneficiary) or as an inter vivos gift. She testified about the conversations she had with her father about the gold. He told her where it was located, i.e., under the house, and instructed her to use it to care for Eligio if needed. Based on these conversations, Gloria testified to her understanding that the gold was hers long before her father died. Gloria offered her father's will into evidence as proof that she was the sole beneficiary of all his assets. She testified that her father's estate had been closed for more than forty years, there were no unpaid debts or claims against the estate, and, due to the expired statute of limitations, none could be brought at this time. See Tex. Prob. Code Ann. § 93 (Vernon 2003) (establishing a two-year statute of limitations). Whether the gold coins were given to Gloria during Dr. Garcia's life, or upon his death through the provisions of his will, does not affect the ultimate determination of true ownership of the found property. Neale, 486 S.W.2d at 169-170. We hold that Gloria presented legally sufficient evidence of her father's original ownership of the coins and of her current ownership of the coins. Therefore, we overrule the appellants' challenge to the sufficiency of the evidence.
Rebuttal Testimony
Finally, appellants Trevino and Moseley assert that the trial court erred by excluding rebuttal testimony by Hector Lopez. A trial court is granted broad discretion in determining whether to admit or exclude evidence. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Whether the trial court abused its discretion in making an evidentiary ruling is a question of law. Bristol Hotel, 65 S.W.3d at 647. To reverse a judgment based on an erroneous evidentiary ruling, the appellant must demonstrate that the error probably resulted in an improper judgment. Tex.R.App.P. 44.1(a)(1); Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). In determining whether the error probably resulted in an improper judgment, we review the entire record and will not reverse when the excluded evidence is merely cumulative and not controlling on a material issue dispositive to the case. Interstate Northborough Partnership, 66 S.W.3d at 220.
Trevino and Moseley complain that they were denied the opportunity to present rebuttal testimony through Hector Lopez, Gloria's husband. Trevino and Moseley sought to rebut thirteen specific areas of Gloria Lopez' testimony. For example, they sought to question Hector Lopez with respect to the following matters: (1) how many holes were dug under the house in search of the gold coins; (2) the pleadings drafted by Hector Lopez on behalf of his wife Gloria; (3) whether or not Dr. Garcia actually wished the presence of the gold to be kept a family secret; (4) insurance issues; (5) the breadth of the search for gold; and (6) Hector Lopez' motivation for finding the gold. The trial court permitted the appellants to question Hector on these matters outside the presence of the jury, but excluded the proffered testimony. Of the thirteen issues, none pertain to the material issue of true ownership of the gold coins. Because the evidence the appellants sought to admit was cumulative, and did not go to a controlling issue of material fact, the trial court did not abuse its discretion in excluding the evidence. Id. Accordingly, we overrule this issue.
Trevino and Moseley had the opportunity to call Hector Lopez as a witness in their case-in-chief and declined to do so.
Conclusion
Because of the above stated reasons, we overrule all of the appellants' issues on appeal. The trial court's judgment in accordance with the jury's finding that Gloria Lopez is the true owner of the gold coins is AFFIRMED.