482 S.W.3d 650
Tex. App.2015Background
- Decedent Robert L. Wright died in 2012 owning multiple properties; a July 7, 2010 will was admitted to probate naming Robert Tautenhahn executor and splitting the estate between Tautenhahn and Lindsey Bozeman.
- Leroy Stroman, a long‑time manager/employee who lived at 105 Sweeney Street since ~1994, contested the probated will and asserted either an earlier unproduced will or an inter vivos (oral) gift conveying 105 Sweeney Street to him.
- Stroman testified Wright bought the house for him, Stroman paid ~$400/month for ~2 years, then Wright told him “that was it, the house was mine,” and later showed Stroman a will leaving the property to him; insurance on the house was put in Stroman’s name and payouts were made to him during remediation.
- The trial court held the July 7, 2010 will valid and appointed Tautenhahn executor, but found Wright had made a completed oral gift of 105 Sweeney Street to Stroman, imposed a constructive trust, and ordered a special‑warranty deed transferring the property to Stroman.
- The court also awarded Stroman $57,179.15 in attorney’s fees to be paid from Wright’s estate under former Probate Code §243 as a good‑faith proponent of an alleged will; Tautenhahn appealed raising three issues.
Issues
| Issue | Plaintiff's Argument (Tautenhahn) | Defendant's Argument (Stroman) | Held |
|---|---|---|---|
| Admissibility under Dead Man’s Rule | Trial court relied on inadmissible testimony from Stroman about Wright’s oral statements in violation of Tex. R. Evid. 601(b) | Stroman asserted testimony was admissible or objections were not preserved; some testimony was unobjected to | Court: No reversible error — many objections were sustained but key testimony was unobjected to; any error harmless; issue overruled |
| Sufficiency of evidence for completed oral (parol) gift | Evidence insufficient — statements and wills show donative intent was testamentary (future), not present divestiture | Evidence showed present donative intent: payments stopped after ~2 years, Wright’s pronouncement the house was Stroman’s, insurance in Stroman’s name, insurer dealing with Stroman | Court: Evidence legally sufficient (more than scintilla); trial judge as factfinder could credit Stroman; issue overruled |
| Award of attorney’s fees under former Probate Code §243 | Fee award improper: statute permissive, Stroman did not plead fees in live pleadings and issue not tried by consent | Court invited fee evidence, Stroman presented fees post‑trial and filed "Authority for Attorney’s Fees" before judgment; no claim of surprise | Court: Fee award valid — post‑trial filings and invited evidence constituted sufficient trial amendment/pleading and no surprise; issue overruled |
| Overall disposition | N/A | N/A | Final: Affirmed trial court judgment (property transferred to Stroman via constructive trust; attorney’s fees awarded) |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for legal‑sufficiency review and factfinder credibility)
- BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) ("more than a scintilla" sufficiency standard)
- Troxel v. Bishop, 201 S.W.3d 290 (Tex. App.—Dallas 2006) (recognizing elements required to prove parol gift of real estate in equity)
- Dickson v. Dickson, 993 S.W.2d 735 (Tex. App.—Houston [14th Dist.] 1999) (parol gift of land will not be passed by will; will speaks at testator’s death)
- Shriner’s Hosp. for Crippled Children of Tex. v. Stahl, 610 S.W.2d 147 (Tex. 1980) (will takes effect only at testator’s death)