Opinions Released June 22, 2017

Boothe v. Green, No. 13-15-00267-CV (Opinion by Chief Justice Valdez; Panel Members: Justices Rodriguez and Hinojosa)

In this appeal from an order granting traditional summary judgment, the Thirteenth Court of Appeals analyzed and applied the rule of ademption.

Cora McCrabb, John McCrabb, and Mary Atkinson each held an undivided fee simple interest in nearly 1,448 acres of farmland. In 1924, Cora executed a will devising all farmland owned at the time of her death to her three grandchildren: Jessie McCrabb, J.F. McCrabb, and Mary Lee McCrabb. Cora further bequeathed all the rest of her property and land—except for farmland—to her granddaughter Jessie McCrabb alone.

In 1927, Cora, John, and Mary sold the 1,448 acres to J.L. Dubose, who simultaneously conveyed an undivided one-half interest in the minerals produced from the property back to Cora, John, and Mary.

Cora then died in 1929.

Nearly a century later, in 2013, the heirs of J.F. and Mary filed a declaratory judgment action, asking the trial court to declare that Cora’s undivided mineral interest passed to J.F., Mary, and Jessie equally upon Cora’s death. Jessie’s heirs filed a counterclaim for trespass, and for money had or received by the plaintiffs.

The parties filed competing motions for traditional summary judgment. The trial court denied the plaintiffs’ motion and granted the defendants’ motion, entering judgment for Jessie’s heirs.

The heirs of J.F. and Mary appealed, arguing that the trial court misapplied the rule of ademption.

Held: The farmland referenced in Cora’s specific bequest was only partially adeemed, and the remaining mineral interest passed to the heirs of all three of her grandchildren. The trial court’s judgment was reversed, and the Thirteenth Court rendered judgment in favor of the heirs of Mary and J.F.

Ademption

The doctrine of ademption holds that when a specific bequest does not exist or is not held by the testator at the time of the testator’s death, the bequest is inoperative. However, the rule applies pro tanto; if some but not all of the property subject to the specific bequest remains part of the estate when the testator dies, the part that remains is passed in accordance with the specific bequest.

The Thirteenth Court compared the case to Rogers v. Carter, 385 S.W.2d 563 (Tex. Civ. App.—San Antonio 1964, writ. ref’d), and San Antonio Area Found. v. Lang, 35 S.W.3d at 637 (Tex. 2000). In both instances, the courts held that property was only partially adeemed when some but not all of the land devised in a specific bequest was sold prior to the testator’s death.

The Thirteenth Court then applied these laws to Cora’s will. The court noted that Cora retained a portion of the farmland at issue because Dubose conveyed an undivided one-half interest in the mineral estate back to the grantors. Thus, Cora still had a portion of the farmland when she died, and the ademption operated pro tanto. The mineral interest passed under Cora’s specific bequest to Jessie, J.F., and Mary Lee.

As such, the trial court erred by granting traditional summary judgment in favor of Jessie’s heirs, and denying the motion for summary judgment filed by the heirs of Mary and J.F.

Money Had or Received

The heirs of Mary and J.F. also challenged the trial court’s entry of summary judgment in favor of Jessie’s heirs on their claim for money had or received. The claim was premised on Jessie’s heirs’ argument that Jessie alone received the mineral interest at issue, and thus Mary and J.F. improperly received royalties. Given the Thirteenth Court’s holding regarding the specific bequest, the heirs of Mary and J.F. did not improperly receive royalties. The trial court thus erred in granting summary judgment on this claim as well.

The Thirteenth Court reversed the trial court’s judgment and rendered judgment in favor of the heirs of Mary and J.F.

Read the Full Opinion Here

Perez Jr. v. Trevino, No. 13-17-00087-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Benavides and Hinojosa)

In this appeal from an election contest, the Thirteenth Court of Appeals reviewed the sufficiency of the evidence to support the trial court’s judgment ordering a new runoff election.

Gilberto Perez, Jr. and Oziel Trevino both ran for Place 5 Commissioner for the City of Hidalgo in 2016. After a runoff election, the results revealed that Trevino received 1,460 votes and Perez received 1,454. Perez filed an election contest suit, arguing that (1) votes were cast by individuals who did not reside in Hidalgo County; (2) some voters used assistants in violation of the Election Code; and (3) unauthorized mail-in ballots were included in the election results.

At trial, ten witnesses testified that they were assisted in the voting booth by either Marcela Gutierrez or Sara Ornelas. Gutierrez and Ornelas both worked for the Trevino campaign, and Gutierrez was not a citizen. Although some of the voters required assistance to vote due to language or physical barriers, many did not. Moreover, at least four individuals—none of whom had language or physical limitations—testified that Gutierrez influenced their vote while assisting them.

Regarding mail-in ballots, Teresa Samano Revesz testified that she distributed approximately forty-five mail-in ballots and helped many of the voters complete their ballots. She then collected the ballots over two days before mailing them to the voting clerk. Another campaign worker, Arjona, also distributed and assisted voters in completing mail-in ballots. Arjona helped with approximately sixty ballots, and at least one voter testified that Arjona told him to vote for Trevino.

The trial court held that Trevino received votes in violation of the Texas Election Code, and that after deducting these votes from the total the true outcome of the election was unclear. The court thus declared the runoff election void and ordered a new election between Perez and Trevino on or before March 6, 2017. Perez moved to modify the judgment, arguing that the trial court should declare Perez the winner because the evidence revealed that more than 6 of Trevino’s votes were obtained in violation of the Election Code. The trial court denied Perez’s motion, and Perez appealed.

Held: The trial court did not abuse its discretion in finding that there were at least six votes cast for Trevino in violation of the Texas Election Code, and that such votes materially affected the outcome of the election and rendered it impossible to determine the voting majority’s true will. The judgment was affirmed, although modified to reflect a new election date.

Jurisdiction

First, Trevino challenged the Thirteenth Court’s jurisdiction, claiming that Perez did not file a timely notice of appeal. Specifically, Trevino argued that Perez’s appeal was governed by Texas Election Code Section 232.014, which requires an appeal from a primary election contest to be filed within five days from the date the judgment is signed. The Thirteenth Court noted however, that Section 232.014 is mandatory only for primary elections; appeals from suits contesting general or special elections are instead governed by Section 232.015, which allows but does not require an appellant to file an accelerated appeal under the timeline set forth in Section 232.014.

The Thirteenth Court thus analyzed whether the Place 5 Commissioner election qualified as “primary,” “general,” or “special.” In a primary election, a political party holds an election to select a nominee for office. In contrast, a general election is a non-primary election that occurs regularly at a fixed date, and a special election is a catch-all category for all elections other than those qualifying as primary or general. The runoff election between Perez and Trevino was nonpartisa, and was a follow-up to a general election in which neither candidate received the majority of the votes. The election was thus a “special election,” and any appeal from a contest of the election results was governed by Section 232.015, rather than Section 232.014. Thus, Perez was not required to file an expedited appeal. Instead, since Perez filed a motion to modify the judgment within 30 days after the judgment was signed, he could file his notice of appeal within ninety days after the judgment was signed. Perez met this deadline by filing his notice of appeal on February 9, 2017 after the judgment was signed on December 5, 2016.

Election Contest

The court then turned to the merits of Perez’s appeal. Perez argued that the trial court should have declared him the winner, rather than ordering a new election.

The Thirteenth Court noted that Perez was required to prove that a violation of the Election Code occurred by clear and convincing evidence and that such violation materially affected the results of the election. An election is materially affected if there would have been a different outcome without the irregularities or the irregularities make it impossible to determine the voting majority’s will. The trial court’s judgment was reviewed for an abuse of discretion.

Under Chapter 64 of the Election Code, only one person may occupy a voting station unless the voter requires assistance due to a health issue, physical disability, or inability to read in the language in which the ballot is written. The assistant commits a Class A misdemeanor if he or she knowingly assists a voter who is not eligible for assistance or does not request it, marks the ballot without the voter’s direction, or suggests how the voter should vote. If such an offense is committed, the ballot may not be counted.

The evidence at trial revealed nine voters who voted in-person and received assistance, but did not qualify for assistance under Chapter 64. Five of these voters testified that they voted for Trevino, but the other four either did not state who they voted for or did not recall. There was legally and factually sufficient evidence to support the trial court’s finding that a violation of Chapter 64 materially affected the outcome of the election.

Similarly, under Chapter 86 of the Election Code, a voter may apply for a mail-in ballot and, if eligible, will receive such a ballot from the voting clerk. The voter should mark the ballot, seal it in the ballot envelope, then seal the ballot envelope in the official carrier envelope before signing the certificate on the carrier envelope. If someone other than the voter mails the envelope, that person must sign the carrier envelope. However, the ballot cannot be collected and stored in a separate location; it must be promptly mailed to the clerk. As in Chapter 64, a voter may only receive assistance in completing a mail-in ballot if he or she has a health problem, physical disability, or language barrier; otherwise, receiving assistance is a violation of the Election Code and the ballot may not be counted.

At trial, Revesz testified that eight voters handed her a sealed ballot, but she assisted the remaining 37 voters and all of them voted for Trevino. Revesz further testified that she stored these ballots overnight before mailing them to the clerk. This violated the Election Code, and these ballots should not have been counted. However, since none of the voters who were assisted by Revesz testified, the Thirteenth Court held that the trial court could have reasonably formed a firm belief that it was unclear how these violations of Chapter 86 impacted the election. Similarly, although one voter testified that Arjona improperly influenced his vote and thus violated the Election Code, it was unclear how many votes were improperly cast for Trevino.

In sum, the Thirteenth Court held that the trial court did not abuse its discretion in holding that there were at least six ballots cast in violation of Chapters 64 and 86 of the Texas Election Code, and in ordering a new election because the irregularities made it impossible to determine the voting majority’s true will. However, the trial court’s judgment ordered an election on or before March 6, 2017, which passed while the case was on appeal. Thus, the Thirteenth Court modified the judgment as to the date of the new election, remanded the case to set a new election date, and affirmed the remainder of the judgment.

Read the Full Opinion Here