Opinion
05-22-01049-CV
03-18-2024
IN RE THE ESTATE OF ROBERT S. KAM, DECEASED
On Appeal from the Probate Court No. 3 Dallas County, Texas Trial Court Cause No. PR-11-01368-3
Before Justices Molberg, Reichek, and Smith.
MEMORANDUM OPINION
KEN MOLBERG JUSTICE.
In this will contest case-and the fourth iteration of appeals in our Court alone-pro se appellant Carol Kam, sister to Robert S. Kam (decedent), appeals the September 19, 2022 "Order Adopting and Approving Final Judgment of Associate Judge," which approved the "Final Judgment" signed by Associate Judge John Peyton, Jr. on August 9, 2013, after a bench trial. For the reasons that follow, we affirm the final judgment in this memorandum opinion, see Tex. R. App. P. 47.4, and consistent with that final judgment, order Carol to pay appellee David S. Kam, as Trustee and Independent Executor of the Estate of Robert S. Kam, $30,000 in appellate attorney's fees based on her unsuccessful appeal in our Court.
We provide case names and numbers for the earlier iterations in our Court in Section I, below.
Unless otherwise indicated, we refer to Robert S. Kam as "decedent" and refer by first name to all other individuals with Kam as their surname.
Unless otherwise indicated, we refer to the September 19, 2022 order as the "final judgment" and to the August 9, 2013 judgment as the "Peyton judgment."
Unless otherwise indicated, our references to "David" or "David S. Kam" refer to him in his capacity as Trustee and Independent Executor of the Estate of Robert S. Kam.
I. Background
In May 2011, Dallas County Probate Court Three issued an order probating the will of Robert S. Kam and issuing letters testamentary.
Two months later, appellant and her nephew, Justin Kam, contested decedent's will by filing an "Application to Set Aside Order Probating Will, for Determination of Heirship, Suit for Declaratory Judgment, and Removal of Independent Executor."
The following month, David answered and filed a cross-application for declaratory judgment. According to the docket sheet in the record before us, on the day trial began, David non-suited without prejudice the cross-application for declaratory judgment.
Associate Judge John Peyton, Jr. presided over the bench trial that began July 22, 2013, and concluded three days later. All parties, including Carol, were represented by counsel during the trial. Nineteen witnesses testified; fifty-nine exhibits were admitted as evidence. After both sides rested, closed, and submitted closing arguments, the associate judge took the matter under advisement. He signed the Peyton judgment on August 9, 2013, ten days after the trial concluded.
In her later-filed motion for new trial, Carol, through her counsel, stated "in order to preserve the originally set trial date and all arrangements confirmed and related thereto, [will contestants Carol and Nick] agreed through their counsel to try the case before Associate Judge Peyton." While Carol disputes its date, the appellate record contains a July 16, 2013 "Order of Referral" that referred Carol's and Justin's will contest application to an associate judge for determination. In a separate appeal, we stated the following about that order of referral:
The parties agreed to trial of the will contest before an associate judge. The presiding judge of the probate court signed a July 16, 2013 Order of Referral of the will contest to the associate judge of the probate courts of Dallas County, Texas, with no limitation on the powers or duties of the associate judge.See In re Estate of Kam, No. 05-16-00126-CV, 2016 WL 7473905, at *2 (Tex. App.-Dallas Dec. 29, 2016, pet. denied) (mem. op.).
Among other things, the Peyton judgment stated that Carol and Justin "failed to meet their burden of proof on all counts pleaded by them and accordingly they TAKE NOTHING." The Peyton judgment also stated:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Contestants [Carol and Justin] failed to plead or to prove that their contest of the Robert S. Kam Trust as Amended and Restated dated March 17, 2011 and the Second Amendment to the Robert S. Kam Trust dated March 22, 2011 (hereinafter collectively referred to as the "Trust Agreement") was brought with "probable cause" or that it was brought and maintained in "good faith," while Respondents David J. Kam and Robert S. Kam, Jr. both pleaded and proved that Contestants [Carol and Justin] brought and maintained the contest in bad faith and without probable cause, and consequently the "No Contest" provisions of Article VIII of the Trust Agreement shall operate against Contestants Carol Kam and Justin Kam and all benefits to which they or their descendants would otherwise be entitled are revoked and shall pass as if Contestants [Carol and Justin] and their descendants had predeceased the Settlor, Robert S. Kam.
Additionally, the Peyton judgment provided that David, as Trustee of the Robert S. Kam Trust,
have and recover from [Carol and Justin], jointly and severally, the amount of ONE HUNDRED NINETY-EIGHT THOUSAND FOUR HUNDRED DOLLARS ($198,400) for attorneys' fees and litigation expenses that were reasonably and necessarily incurred in responding to the contest of the Trust Agreement and the action for declaratory judgment by [Carol and Justin] and for recoverable costs.
Thirty days after the Peyton judgment was signed, Carol and Justin filed a motion for new trial and alternative motion to modify the judgment. Associate Judge Peyton heard the requests on October 16, 2013, and overruled them in an order signed the same date.
In that hearing, the associate judge also sustained a motion to quash a subpoena issued to a nonparty, Robert H. Beard, M.D., who Carol, through her counsel, had subpoenaed to testify at the hearing on the motion for new trial. Dr. Beard appeared at the hearing and was represented by counsel. Dr. Beard and David opposed Carol's attempts to present new evidence through Dr. Beard at the motion for new trial hearing. As was true in a separate appeal on a different record, the record in this case reveals no oral or written objection by Carol to the associate judge presiding over her post-judgment motion for new trial or to Dr. Beard's motion to quash. The appellate record in this case also reveals no offer of proof by Carol regarding what Dr. Beard's testimony would have been had it not been quashed, and the substance of his testimony is not apparent from the context.
See In re Estate of Kam, 2016 WL 7473905, at *8 (stating, about the appellate record in that case, "The appellate record reveals no oral or written objection by Carol to the associate judge presiding over her post-judgment motion for new trial or to a witness's motion to quash a deposition heard immediately before Carol's motion for new trial.").
Twenty-one days after the October 16, 2013 order was signed, Justin-but not Carol-then requested, and Associate Judge Peyton ultimately issued, findings of fact and conclusions of law.
On the same day he requested findings of fact and conclusions of law, Justin- but not Carol-appealed the Peyton judgment and denial of his post-trial motions. Justin's appeal was dismissed by agreement in 2014.
See In re Estate of Kam, No. 05-14-00088-CV, 2014 WL 2580555, at *1 (Tex. App.-Dallas June 9, 2014, no pet.) (mem. op.) (dismissing Justin Kam's appeal of the Peyton judgment, per agreement of the parties).
Carol did not appeal the Peyton judgment or the denial of her post-judgment motions in 2013 or 2014. However, in 2015, Carol filed a statutory bill of review, and the trial court denied it. She appealed that denial, and in 2016, we affirmed the judgment denying Carol's statutory bill of review.
See In re Estate of Kam, 2016 WL 7473905, at *1, *8 (affirming trial court's judgment denying Carol's bill of review).
Years passed. In 2018, Carol filed a lawsuit against Associate Judge Peyton in federal court. That lawsuit was dismissed, and she appealed. After the dismissal was affirmed by the United States Court of Appeals for the Fifth Circuit, Carol filed a petition for certiorari in the United States Supreme Court, which denied her petition.
For the various opinions generated at the above-described steps in the federal lawsuit, see Kam v. Peyton, No. 3:18-cv-1447-D, 2018 WL 6696499 (N.D. Tex. Dec. 20, 2018) (approving earlier findings, conclusions, and recommendations of the United States Magistrate Judge), aff'd, 773 Fed.Appx. 784 (5th Cir. 2019) (per curiam), cert. denied, 140 S.Ct. 494 (2019). Carol then filed a motion to vacate the judgment under Federal Rule of Civil Procedure 60(b). The federal trial court denied the motion, the Fifth Circuit affirmed, and the Supreme Court again denied Carol's petition for certiorari. See Kam v. Peyton, No. 3:18-CV-1447-D, 2021 WL 310561, at *2 (N.D. Tex. Jan. 29, 2021), aff'd, 850 Fed.Appx. 912 (5th Cir. 2021) (per curiam), cert. denied, 142 S.Ct. 563 (2021).
In 2019, before Carol's petition for certiorari in her federal lawsuit against the associate judge was denied, Carol filed a notice of appeal in the trial court and our Court which stated, "As the . . . [orders of] August 9, 2013[,] and October 6, 2013[,] have not been signed . . . as required by law, the [c]ase remains unresolved." We questioned our jurisdiction over that appeal, and in response, Carol, as the appellant, argued we lacked it.
We agreed, and we dismissed Carol's appeal for lack of jurisdiction, noting in our memorandum opinion that, while an associate judge may sign a final order that includes a waiver of the right to a de novo hearing before the referring court, see Tex. Gov't Code § 54A.209(a)(17), "the judgment of an associate judge does not become the judgment of the referring court, and the appellate deadlines are not triggered, until the judge of the referring court signs the judgment." Kam, 2020 WL 1815831, at *1 (citing Tex. Gov't Code §§ 54A.214(b), 54A.217(b)).
See Kam v. Kam, No. 05-19-01293-CV, 2020 WL 1815831, at *1 (Tex. App.-Dallas April 10, 2020, pet. denied) (mem. op.) (dismissing appeal for lack of jurisdiction).
More years passed. In 2022, David filed in the trial court a "Motion to Confirm Approval of Final Judgment of Associate Judge," seeking approval of the Peyton judgment. The motion was heard September 19, 2022, and the hearing was transcribed.
Presiding over the hearing was Judge Margaret Jones-Johnson, the then-presiding judge of Dallas Probate Court Number Three, the same court listed on the July 16, 2013 "Order of Referral" that referred Carol and Justin's will contest application to an associate judge for determination. Carol appeared, representing herself pro se. According to the hearing transcript, no witnesses were sworn, and no evidence was submitted at the hearing.
David's counsel argued in favor of the motion, and Carol argued in opposition to it, claiming, in part, that the court should deny David's motion because Associate Judge Peyton lacked authority to enter the Peyton judgment. No ruling was made during the hearing, but on the same day the hearing was held, the trial court issued the final judgment now at issue, prompting this latest appeal.
Previously, we dismissed this appeal for Carol's failure to file a brief that complied with the rules of appellate procedure, but on rehearing and receipt of her corrected brief, we vacated our prior opinion and reinstated this appeal in our order issued April 20, 2023.
See In re Estate of Kam, No. 05-22-01049-CV, 2023 WL 1794002 (Tex. App.-Dallas Feb. 7, 2023, no pet.) (mem. op.).
II. Issues & Analysis
Although we liberally construe pro se pleadings and briefs, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. Moreno v. Silva, 316 S.W.3d 815, 817 (Tex. App.-Dallas 2010, pet. denied).
As a preliminary matter, we observe that generally, Carol directs her current appellate attack on the final judgment as a whole, rather than challenging specific findings of fact or conclusions of law. Although not specified, if we can fairly determine from Carol's argument the finding of fact or conclusion being challenged, we will do so. Additionally, we note that many, though not all, of Carol's arguments in this appeal are the same, in essence, as those made in the bill-of-review-related appeal we decided against Carol in 2016. See Estate of Kam, 2016 WL 7473905, at *1, *8 (affirming trial court's judgment denying Carol's bill of review). As this appeal involves a direct appeal of a final judgment, not an issue involving a bill of review, the review standards we apply here differ from those used in our 2016 opinion. But in terms of practical effect, the outcome is largely the same.
See Shaw, 251 S.W.3d at 169 (party appealing from a nonjury trial in which the trial court made findings of fact and conclusions of law should direct his attack on the sufficiency of the evidence at specific findings of fact, rather than at the judgment as a whole, but if we can fairly determine from the argument the specific finding of fact which the appellant challenges, a challenge to an unidentified finding of fact may be sufficient).
In the bill-of-review appeal we decided in 2016, we described Carol's position as asserting that "the probate court should have granted her statutory bill of review because the court erred in the underlying litigation by finding a trust agreement was invalid; finding other documents associated with [decedent's] estate were valid, [decedent] possessed legal capacity to execute those documents, and execution of those documents was not the result of the exercise of undue influence over [him]; overruling Carol's objection to admission of evidence; finding Carol failed to plead or prove her will contest was brought in good faith; awarding attorney's fees; and permitting an associate judge to preside over and rule on post-trial motions." In re Estate of Kam, 2016 WL 7473905, at *1.
A. Summary of Issues
Carol raises six issues on appeal, which she frames as follows:
Carol refers to her issues using letters A to F. We refer to her issues using numbers one to six.
1. Absence of Authority by [Associate Judge Peyton] and Court Prank;
2. Medical Record and M.D. Anderson Oncologist Confirming the Absence of Capacity for [decedent] Related to the Illegal Graves-Pyke Trust;
3. [Decedent's] Own Confirmation of His Failure to Have Capacity Related to the Illegal Amended Trust Created by Pyke;
4. [Associate Judge Peyton's] Denial of Right to Depose [Dr.] 'Beard' Who Allegedly Signed Off on [Decedent's] D.N.R.;
5. Probate Court's Requirement to Sign Off on Proposed Order by an Associate Judge. [Judge] Michael Miller's Refusal to Sign Off on the Proposed [Associate Judge Peyton's] Orders; and
6. Validity of the Graves-Pyke Trusts and Will
B. Review Standards
We review a trial court's legal conclusions de novo. Walker v. Anderson, 232 S.W.3d 899, 908 (Tex. App.-Dallas 2007, no pet.). We evaluate those conclusions independently to determine whether the trial court correctly drew the conclusion from the facts. Id.
"A trial court's findings of fact issued after a bench trial have the same weight, and are judged by the same appellate standards, as a jury verdict." Texas Outfitters Ltd., LLC v. Nicholson, 572 S.W.3d 647, 653 (Tex. 2019); see Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex. App.-Dallas 2008, pet. denied) ("In reviewing a trial court's findings of fact for legal and factual sufficiency of the evidence, we apply the same standards we apply in reviewing the evidence supporting a jury's answer.") (citation omitted); Shaw v. Cty. of Dallas, 251 S.W.3d 165, 169 (Tex. App.-Dallas 2008, pet. denied) ("Findings of fact in an appeal from a nonjury trial carry the same weight as a jury verdict and are reviewed under the same standards that are applied in reviewing evidence to support a jury's verdict.").
The trial court's findings of fact "form the basis of the judgment upon all the grounds of recovery and of defense embraced therein." Tex.R.Civ.P. 299. When the appellate record contains a reporter's record as it does in this case, findings of fact are not conclusive on appeal if the contrary is established as a matter of law or if there is no evidence to support the findings. Ramsey, 261 S.W.3d at 815 (citation omitted).
A party challenging the legal sufficiency of an adverse finding on an issue on which it has the burden of proof must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). When a party challenges the legal sufficiency of the evidence to support an adverse finding on which it did not have the burden of proof, the party must demonstrate that no evidence supports the finding. Graham Cent. Station, Inc. v. Peña, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam).
In evaluating the legal sufficiency of the evidence to support a finding, we view the evidence in the light most favorable to the finding, indulging every reasonable inference supporting it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We "must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id. at 827. The "final test for legal sufficiency" is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." Id. "A legal sufficiency challenge fails if more than a scintilla of evidence supports the finding." Texas Outfitters Ltd., LLC, 572 S.W.3d at 653 (citing Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998)).
In contrast, in determining factual sufficiency, we "must consider and weigh all the evidence." Dow Chem. Co., 46 S.W.3d at 242. A party challenging the factual sufficiency of an adverse finding on an issue on which it has the burden of proof must demonstrate on appeal that the evidence is so weak or the adverse finding "is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust." Id. When a party challenges the factual sufficiency of the evidence on an adverse finding on which it did not have the burden of proof, the party must demonstrate there is insufficient evidence to support the finding. Hoss v. Alardin, 338 S.W.3d 635, 651 (Tex. App.-Dallas 2011, no pet.). If we reverse a trial court's judgment for factual insufficiency, we must "detail all the evidence relevant to the issue and clearly state why the jury's finding is factually insufficient or so against the great weight and preponderance of the evidence that it is manifestly unjust" and "how the contrary evidence greatly outweighs the evidence supporting the verdict." Morris v. Wells Fargo Bank, N.A., 334 S.W.3d 838, 842-43 (Tex. App.-Dallas 2011, no pet.) (citations omitted); see Dow Chem., 46 S.W.3d at 242 (to set aside verdict under these standards, court must "detail the evidence relevant to the issue" and "state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict"); Harris Cnty. v. Coats, 607 S.W.3d 359, 381 (Tex. App.-Houston [14th Dist.] 2020, no pet.) (same; also noting court need not do this when it affirms). The amount of evidence needed to affirm a judgment is far less than the amount necessary to reverse one. Texas Champps Americana, Inc. v. Comerica Bank, 643 S.W.3d 738, 744 (Tex. App.-Dallas 2022, pet. denied) (citing Coats, 607 S.W.3d at 381).
In applying these sufficiency standards, we remain mindful that this Court is not a factfinder. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). In a nonjury trial, the trial court is the sole judge of the credibility of the witnesses and the testimony's weight. Tate v. Commodore Cnty. Mut. Ins. Co., 767 S.W.2d 219, 224 (Tex. App.-Dallas 1989, writ denied). The trial court may believe one witness and disbelieve others and may resolve any inconsistencies in a witness's testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).
A party appealing from a nonjury trial in which the trial court made findings of fact and conclusions of law should direct his attack on the sufficiency of the evidence at specific findings of fact, rather than at the judgment as a whole. Shaw, 251 S.W.3d at 169. If we can fairly determine from the argument the specific finding of fact which the appellant challenges, a challenge to an unidentified finding of fact may be sufficient. Id.
As a general rule, a party is required to present a timely complaint to the trial court before being allowed to raise the issue on appeal. See Tex. R. App. P. 33.1(a)(1) ("As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion"). A timely objection is one that is made "at a point in the proceedings which gives the trial court the opportunity to cure any alleged error." Crews v. Dkasi Corp., 469 S.W.3d 194, 201 (Tex. App.-Dallas 2015, pet. denied).
We will not reach an issue regarding error in the exclusion of evidence unless the party complaining about the exclusion has preserved error. See Sink v. Sink, 364 S.W.3d 340, 346-47 (Tex. App.-Dallas 2012, no pet.). "A party may claim error in a ruling to . . . exclude evidence only if the error affects a substantial right of the party and . . . a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context." Tex. R. Evid. 103(a)(2); see Sink, 364 S.W.3d at 347 (complaining party must offer the evidence and secure adverse ruling from the trial court). Without an offer of proof or a formal bill of exception, we cannot determine whether the exclusion of evidence was harmful. Sink, 364 S.W.3d at 347; see Tex. R. App. P. 44.1(a) (standards for reversible error).
C. First Issue: Associate Judge's Alleged Lack of Authority and Court Prank
Based on Carol's briefing, her reference to a "court prank" seems to refer to her apparent belief that the July 16, 2013 order of referral was backdated and filed at some point in August 2013, after the trial, and her belief that it was "based on two laws which did not exist in 2013 and do not exist today." As to the latter, while the order of referral includes references to government code sections "54.610" and "54.618," which are not currently in effect, those two sections were redesignated as sections 54A.209 and 54A.216, respectively, effective January 1, 2012, prior to the signing of the July 16, 2013 order of referral. See Act of June 29, 2011, 82nd Leg., 1st C.S., ch. 3, § 6.02, secs. 54A.209, 54A.216, 2011 Tex. Gen. Laws 5233, 5236 (codified at Tex. Gov't Code §§ 54A.209, 54A.216) (information available online at https://lrl.texas.gov/scanned/sessionLaws/82-1/HB_79_CH_3.pdf and last viewed March 14, 2024). In other words, despite Carol's skepticism regarding the statutory bases listed in the July 16, 2013 order of referral, we perceive no impropriety, as it is certainly possible they resulted from the use of a form created prior to the redesignation.
In her first issue, Carol argues Associate Judge Peyton "failed to have authority to oversee the hearings on [her] case in July 2013 and in October 2013." Although not specified, her argument appears to challenge finding of fact number twenty and conclusion of law thirteen, which state, in pertinent part:
[Finding of Fact No. 20:] On July 22, 2013, this case was called to trial, and all parties agreed on the record that Associate Judge John B. Peyton is authorized to decide all issues of fact and all issues of law, that his judgment will be deemed the final judgment of Probate Court Number Three, Dallas County, Texas, and that any appeal from Judge Peyton's judgment will be taken directly to the Court of Appeals for the Fifth District of Texas at Dallas.
[Conclusion of Law No. 13:] In accordance with the Order of Referral dated July 16, 2013, and the agreement of the parties, Judge John B. Peyton has authority to decide all issues of fact and all issues of law, his judgment will be deemed the final judgment of Probate Court
Number Three, Dallas County, Texas, and any appeal from Judge Peyton's judgment will be taken directly to the Court of Appeals for the Fifth District of Texas at Dallas.
Carol made this alleged-lack-of-authority argument in the September 19, 2022 hearing on David's motion to confirm approval of the Peyton judgment, but she cited no evidence as support. As we discuss further below, more critically important to this appeal, however, is that she failed to object to Associate Judge Peyton's authority in the July 2013 trial or October 2013 motion for new trial hearing.
On appeal, as support for her alleged-lack-of-authority argument, Carol cites information she included in a motion she filed in the trial court on November 14, 2022, about five weeks after she initiated this appeal. Such information included a purported affidavit of Mark Steirer, one of her attorneys in the July 2013 trialwho, according to the record before us, (1) attended each day of trial and failed to object to Associate Judge Peyton's authority to preside over trial on any of those days, and (2) purportedly signed that affidavit in support of Carol's bill of review on May 11, 2015, about two years after the trial.
See Tex. R. App. P. 26.1(a) (providing time period for filing notice of appeal). Carol filed her notice of appeal in this case on October 5, 2022, sixteen days after the trial court's final judgment. The appellate record contains no indication the trial court considered or ruled on her November 14, 2022 motion.
The purported affidavit indicates Steirer sat second chair.
In our prior opinion affirming the denial of her bill of review, we noted that "Carol did not offer any evidence" during the bill-of-review proceeding. In re Estate of Kam, 2016 WL 7473905, at *5. We also stated:
The presiding judge of the probate court signed a July 16, 2013 Order of Referral of the trial of the will contest to the associate judge of the probate courts of Dallas County, Texas, with no limitation on the power or duties of the associate judge. See Tex. Gov't Code Ann. § 54A.207 (West 2013) (judge of court may refer to associate judge any aspect of suit over which probate court has jurisdiction, including any matter ancillary to suit; unless party files written objection to associate judge hearing trial on merits, judge may refer trial to associate judge; trial on merits is "any final adjudication from which an appeal may be taken to a court of appeals"); id. § 54A.208 (West 2013) (case may be referred to associate judge by order of referral in specific case; order of referral may limit power or duties of associate judge).Id., at *7.
We noted that while the complete reporter's record from the will contest trial and motion for new trial hearing were not in the appellate record for the bill-of-review-related appeal, Carol had attached to her statutory bill of review portions of the transcript from the trial and motion for new trial hearing which indicated she did not object to Associate Judge Peyton's presiding over either proceeding. See id., at *7-8.
In the instant appeal, the appellate record contains the full reporter's record of both the trial and motion for new trial hearing. Consistent with our earlier opinion, see id., the reporter's record reflects Associate Judge Peyton made the following comments at trial, followed by assent from-and without objection by-Carol's trial counsel:
[Associate Judge]: I am the Associate Judge for the probate courts of Dallas County. It is my understanding that all parties to this proceeding have agreed to try this case before me, to waive the right to appeal to the elected judge of the court, to appeal any decision from my court directly to the Court of Appeals; is that correct?
[David's counsel]: Yes, Your Honor.
[Carol's counsel]: Yes, Your Honor.
In addition to her counsel's assent in this quoted passage to the associate judge presiding over trial, in her motion for new trial, Carol stated, through her counsel at the time, "[I]n order to preserve the originally set trial date and all arrangements confirmed and related thereto, [will contestants Carol and Nick] agreed through their counsel to try the case before Associate Judge Peyton."
Additionally, as we noted in our prior opinion, see id., and the appellate record reflects, in the motion for new trial hearing, after the announcements of counsel and the parties they represented, Associate Judge Peyton stated:
Ladies and gentlemen, this case was referred to me, John Peyton, the associate judge for the probate courts of Dallas County for trial. It was tried by the agreement of the parties. The court is of the opinion that that agreement extends to post judgment matters.
As we noted in our 2016 opinion, see id., "the appellate record reveals no oral or written objection by Carol to the associate judge presiding over her post-judgment motion for new trial[.]" See id. While that quote refers to the appellate record from the 2016 appeal, it remains an accurate description of the appellate record here.
As a general rule, a party is required to present a timely complaint to the trial court before being allowed to raise the issue on appeal. See Tex. R. App. P. 33.1(a)(1) ("As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion"). A timely objection is one that is made "at a point in the proceedings which gives the trial court the opportunity to cure any alleged error." Crews, 469 S.W.3d at 194.
We conclude Carol waived her first issue because Carol, through her counsel, failed to make a timely objection to challenge Associate Judge Peyton's presiding over the trial or motion for new trial hearing. See Tex. Gov't Code § 54A.207(c) (setting forth objection requirements); Tex.R.App.P. 33.1(a)(1) (general preservation of error requirements); Crews, 469 S.W.3d at 201 (characterizing a timely objection as one made "at a point in the proceedings which gives the trial court the opportunity to cure any alleged error"); In re Estate of Kam, 2016 WL 7473905, at *8 (overruling Carol's eighth and ninth issues in the bill-of-review- related appeal); see also Niskar v. Niskar, 136 S.W.3d 749, 761 (Tex. App.-Dallas 2004, no pet.).
To the extent Carol argues her counsel's assent or failure to object to the associate judge presiding at trial should not be construed as her own, the law is clear that, because the attorney-client relationship is an agency relationship, the attorney's acts and omissions within the scope of the lawyer's employment are regarded as the client's acts. See Gavenda v. Strata Energy, Inc., 705 S.W.2d 690, 693 (Tex. 1986) ("The attorney-client relationship is an agency relationship. The attorney's acts and omissions within the scope of his or her employment are regarded as the client's acts; the attorney's negligence is attributed to the client."); see also Tex. Emp'rs Ins. Ass'n v. Wermske, 349 S.W.2d 90, 93 (Tex. 1961) ("The general rule is that the relationship of attorney and client is one of agency. Under this rule, the omissions, as well as the commissions, of an attorney are to be regarded as the acts of the client whom he represents; and his neglect is equivalent to the neglect of the client himself.").
Texas Government Code § 54A.207(c) states, in part, "A party must file an objection to an associate judge hearing a trial on the merits or presiding at a jury trial not later than the 10th day after the date the party receives notice that the associate judge will hear the trial."
Carol framed her eighth and ninth issues in the bill-of-review-related appeal as follows:
[8] Did [the associate judge] exceed his legal and jurisdictional authority by presiding over and attempting to issue findings and rulings on post-trial hearings and motions and thereby constitute reversible error?
[9] Did [the presiding judge of the probate court] [a]bdicate without authorization, his jurisdictional authority to [the associate judge] in the post-[t]rial environment and thereby constitute reversible error?In re Estate of Kam, 2016 WL 7473905, at *3. We overruled those issues and concluded the associate judge "did not exceed his 'legal and jurisdictional' authority by presiding over and ruling on Carol's motion for new trial that was ancillary to the will-contest case referred to him by the probate court" and that "the presiding judge's referral of the trial on the merits of the will contest to the associate judge, which included within its scope Carol's ancillary motion for new trial, was not an 'abdication' of the probate court's jurisdictional authority." Id., at *8.
In Niskar, a family law proceeding, we overruled, on the basis of waiver, an appellant's complaint he was never afforded a hearing on his appeal from the report of the associate judge when court found nothing in the record reflecting any motion or objection raising a demand to have such a hearing prior to the trial court addressing those same issues).
Finally, to the extent Carol relies on the May 11, 2015 affidavit purportedly signed by her second-chair trial counsel Mark Steirer as supporting her theory that the order of referral was backdated and filed at some point after trial, we note that while the information was attached to Carol's November 12, 2022 motion in the trial court, the filing was made after she had already initiated this appeal, and there is no indication the information was presented to the trial court for hearing, offered or admitted as evidence, or ever considered by the trial court. Even if Carol had timely submitted such proof to the trial court, based on the record before us, Steirer attended each day of trial and could have objected on Carol's behalf but failed to do so.
We overrule Carol's first issue.
D. Fifth Issue: Alleged Expiration of the Peyton Judgment and the October 16, 2013 Order Denying Motion for New Trial
In her fifth issue, Carol argues:
The proposed [o]rders by [Associate Judge Peyton] from 2013 have expired. [Judge] Miller refused to sign them when they were created in 2013. [Judge] Jones[-]Johnson refused to sign the first order 2015 to 2022 and the second 2015 to 2020. [Judge] Jones[-]Johnson's failure to provide any explanation on the multi requested [sic] [f]indings of [f]act strongly suggests that she has absolutely no understanding of the case which is completely counter to the requirement that a Court back check [sic] and sign off on an Associate Judge's [o]rder.
In light of Carol's arguments in her briefing, we construe this issue as maintaining, in essence, that the probate court erred in signing the final judgment because it was too late to do so, based on Carol's theory that Judge Michael Miller, the judge of the referring court at the time of trial and the motion for new trial hearing, did not sign the Peyton judgment within thirty days after its signing.
We disagree. The Peyton judgment was issued in accordance with Texas Government Code 54A.209(a)(17), which states, "(a) Except as limited by an order of referral, an associate judge may . . . sign a final order that includes a waiver of the right to a de novo hearing in accordance with Section 54A.216."
David argues, and we agree, that while Texas Government Code § 54A.209(c) requires that certain associate judge orders be signed by the judge of the referring court within 30 days, that requirement applies only to "[a]n order described by subsection (a)(16)," which does not apply to the Peyton judgment in this case. See Tex. Gov't Code § 54A.209(c) ("An order described by Subsection (a)(16) that is rendered and signed by an associate judge constitutes an order of the referring court. The judge of the referring court shall sign the order not later than the 30th day after the date the associate judge signs the order."); see also id. § 54A.209(a)(16).
Texas Government Code § 54A.209(a)(16) states,
(a) Except as limited by an order of referral, an associate judge may:
(16) without prejudice to the right to a de novo hearing under Section 54A.216, render and sign:
(A) a final order agreed to in writing as to both form and substance by all parties;
(B) a final default order;
(C) a temporary order;
(D) a final order in a case in which a party files an unrevoked waiver made in accordance with Rule 119, Texas Rules of Civil Procedure, that waives notice to the party of the final hearing or waives the party's appearance at the final hearing;
(E) an order specifying that the court clerk shall issue: (i) letters testamentary or of administration; or (ii) letters of guardianship; or
(F) an order for inpatient or outpatient mental health, intellectual disability, or chemical dependency services or an order authorizing psychoactive medications.
We overrule Carol's fifth issue.
E. Second, Third, and Sixth Issues: Decedent's Capacity and
Validity of Various Instruments
In her second, third, and sixth issues, Carol argues:
[Second Issue:] Per the Medical Records, the report, and trial testimony of the only qualified Medical Expert witness [Shroff] in the Case, [decedent] did not have capacity after March 7, 2011. Pyke confirmed that [decedent] did not have [c]apacity on March 11, 2011. The [m]edical [r]eport on March 18, 2011 confirmed that [decedent] did not have capacity. [Decedent] passed on March 28, 2011. There is no document, report, or expert testimony that [decedent] had capacity between March 7, 2011, and March 28, 2011.
[Third Issue:] [Decedent] failed to recognize the omission of [Carol] as an heir and the absence of assets in the Graves-Pyke Trust on March 17, 2011. By this, [decedent] has confirmed to this Court and all parties that he did not have [t]estamentary [c]apacity on March 17, 2011.
[Sixth Issue]: Prior to the creation of the Graves-Pyke Trust, an active, fully funded, fully agreed to irrevocable Trust created by [decedent] was in place. Given the absence of capacity confirmed by the Medical expert and [decedent] himself, the Graves-Pyke Trust is of no value.
In light of her issue framing and briefing, we determine that in these issues, Carol challenges the following conclusions of law and the legal sufficiency of the following findings of fact:
[Conclusion of Law No. 1:] The "TRUST AGREEMENT CREATING ROBERT S. KAM TRUST" dated February 13, 2011, but signed by Jimmy R. Carter as "Settlor" on February 1, 2011, (the "Jimmy Carter Trust Agreement") was unenforceable and void as to [Decedent] pursuant to the Statute of Frauds, Section 112.004 of the Texas Trust Code.
[Conclusion of Law No. 2:] The Jimmy Carter Trust Agreement was unenforceable and void because it states that it applies to property in an attached Schedule A and no such schedule was attached or exists.
[Conclusion of Law No. 3:] The trust described in the Jimmy Carter Trust Agreement never came into existence because the Settlor never conveyed property to the Trustee of the trust described therein.
[Conclusion of Law No. 4:] The Last Will and Testament of Robert S. Kam, dated March 17, 2011, is valid and effective.
[Conclusion of Law No. 5:] The Robert S. Kam Trust as Amended and Restated, dated March 17, 2011, as amended by the Second Amendment to the Robert S. Kam Trust, dated March 22, 2011, is valid and effective.
[Finding of Fact No. 8:] [Decedent] had testamentary capacity when he signed the Last Will and Testament of Robert S. Kam and the Robert S. Kam Trust as Amended and Restated on March 17, 2011.
[Finding of Fact No. 11:] [Decedent] had testamentary capacity when he signed the Second Amendment to the Robert S. Kam Trust on March 22, 2011.
Carol refers to this document in her briefing as the "irrevocable Robert Kam Trust completed in mid-February 2011."
Carol refers to this document in her briefing as the "Illegal Graves-Pyke Trust."
Carol refers to this document in her briefing as the "Illegal Amended Trust Created by Pyke."
A party challenging the legal sufficiency of an adverse finding on an issue on which it has the burden of proof must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co., 46 S.W.3d at 241.
Because Carol's suit contesting the will was a suit to annul the probate of a will already probated, the burden was upon her to establish incapacity by a preponderance of the evidence. Lee v. Lee, 424 S.W.2d 609, 610 n.1 (Tex. 1968) (citing Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454 (1941)).
In light of the record before us, we cannot conclude, as a matter of law, that Carol did so. In addition to the testimony of Rachna Shroff, M.D. and David Pyke, whose testimony Carol discusses, the record also includes the testimony and report of another physician, Dr. Myron F. Weiner, M.D., who opined in his report that, "[b]ased on the medical record and Mr. Pyke's observations, there is nothing to indicate that [decedent] lacked testamentary capacity or the ability to enter into a legally binding contract in March of 2011."
Viewing this and other evidence in the light most favorable to Associate Judge Peyton's findings, and indulging every reasonable inference supporting them, see City of Keller, 168 S.W.3d at 822, we conclude the evidence in the record before us is legally sufficient to support the challenged findings.
Additionally, while it is not clear she has done so, to the extent Carol challenges the factual sufficiency of the evidence regarding decedent's capacity on March 17, 2011, or on March 22, 2011, based on the record before us, and viewing the evidence in its entirety, we cannot conclude the evidence is so weak or that the challenged findings are so against the great weight and preponderance of the evidence that they are clearly wrong and unjust. See Dow Chem. Co., 46 S.W.3d at 242 (discussing factual sufficiency review standards).
We overrule Carol's second, third, and sixth issues.
F. Fourth Issue: Alleged Error in Quashing Subpoena to Dr. Beard in Hearing on Carol's Motion for New Trial
In her fourth issue, Carol argues she,
was denied [her] [c]ivil [r]ight to a fair [t]rial in a Texas court by the denial of the [d]eposition of a [m]edical doctor who Pyke claimed, in the trial, had first[-]hand medical knowledge of [decedent's] capacity on March 17, 2011. The denial was by [Associate Judge Peyton] who was illegally in a Texas [c]ourtroom.
Though Carol refers to a denial of the "deposition" of Dr. Beard, we construe Carol's fourth issue as complaining that Associate Judge Peyton erred in granting Dr. Beard's motion to quash the subpoena Carol's counsel issued to secure Dr. Beard's testimony at the October 16, 2013 motion for new trial hearing.
As a preliminary matter, we reject Carol's assertion that Associate Judge Peyton was "illegally in a Texas [c]ourtroom" when conducting this hearing, as we have already overruled her first issue in which she claimed Associate Judge Peyton lacked authority to preside over the hearing.
We also reject Carol's argument claiming, in essence, that we should reverse the final judgment because Associate Judge Peyton erred in granting Dr. Beard's motion to quash the subpoena. We will not reach an issue regarding error in the exclusion of evidence unless the party complaining about the exclusion has preserved error. See Sink, 364 S.W.3d at 346-47 (complaining party must offer the evidence and secure adverse ruling from the trial court). Without an offer of proof or a formal bill of exception-both of which are lacking here-we cannot determine whether the exclusion of evidence was harmful. See id., 364 S.W.3d at 347; see also Tex. R. App. P. 44.1(a) (standards for reversible error).
We overrule Carol's fourth issue.
III. Appellate Attorney's Fees to David
In light of our resolution of Carol's issues, we must also address the issue of appellate attorney's fees. In his amended brief, David asks that we affirm the final judgment and that, in our own judgment, we award him the $30,000 in conditional appellate attorneys' fees previously awarded him in the Peyton judgment, which were conditioned upon an unsuccessful appeal by Carol.
The Peyton judgment stated, in part:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that in the event of an unsuccessful appeal to the Court of Appeals by either Contestant Carol Kam or Contestant Justin Kam, Or by both of them, Respondent David J. Kam, as Trustee of the Robert S. Kam Trust, have
and recover from whichever of Contestants Carol Kam and Justin Kam brings such appeal, and from them jointly and severally if both bring the appeal, the additional amount of THIRTY THOUSAND DOLLARS ($30,000) for attorneys' fees and expenses.
In his findings of fact and conclusion of law, Associate Judge Peyton stated, in pertinent part:
[Finding of Fact No. 24:] If [Carol] or [Justin], or both of them; appeal to the Court of Appeals the judgment of this Court, $30,000 would be a reasonable and necessary amount of attorneys' fees for [David] . . . to incur to defend against such appeal.
[Conclusion of Law No. 10:] Pursuant to Section 114.064 of the Texas Trust Code, Section 37.009 of the Texas Civil Practice and Remedies Code, and Section 243 of the Texas Probate Code, [Carol] and [Justin], jointly and severally, are adjudged liable for the reasonable and necessary attorneys' fees set forth in the Findings of Facts in the event of an appeal to the Court of Appeals, a filing of a petition for review in the Supreme Court of Texas, and/or a granting of a petition for review in the Supreme Court of Texas.
Where attorney's fees are recoverable, an award may include appellate attorney's fees. Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 148 (Tex. App.-Dallas 2011, no pet.) (describing this as "well-settled" and citing Neal v. SMC Corp., 99 S.W.3d 813, 818 (Tex. App.-Dallas 2003, no pet.)). Because an unconditional award of appellate attorney's fees is improper, the trial court must condition fees to appellee on appellant's unsuccessful appeal. Id.
Here, the trial court did so by conditioning $30,000 awarded in appellate attorney's fees on Carol's "unsuccessful appeal in the Court of Appeals."
IV. Conclusion
Having overruled each of Carol's issues, we affirm the final judgment and order that, in addition to his costs of this appeal, appellee David S. Kam, as Trustee and Independent Executor of the Estate of Robert S. Kam, recover from appellant Carol Kam $30,000 in appellate attorney's fees based on her unsuccessful appeal in our Court.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee David S. Kam, as Trustee and Independent Executor of the Estate of Robert S. Kam, recover from appellant Carol Kam $30,000 in appellate attorney's fees based on her unsuccessful appeal in our Court.
It is also ORDERED that appellee David S. Kam, as Trustee and Independent Executor of the Estate of Robert S. Kam, recover his costs of this appeal from appellant Carol Kam.
Judgment entered.