In In Re the Estate Of Bobbie Willingham, a December 20, 2021 opinion, the Texas appellate court reviewed a jury’s determination finding a will invalid and finding that a neighbor committed civil theft against the decedent by taking checks and other items and having his mortgage paid off by the decedent. This case also offers a review of the burdens of proof for civil theft and attorney’s fees, and highlights the importance of preservation of error on appeal.
The Facts Of In Re the Estate Of Bobbie Willingham
Decedent, Bobbie Willingham, lived in the same neighborhood as the Elizondo family. The neighbors saw each other daily between 2000 and 2010. Bobbie’s husband regularly visited with the Elizondos in the front yard. Bobbie was more reserved and interacted with them only on occasion.
After Mr. Willingham died in 1996, Bobbie became even more reserved and rarely left the house. Angel Elizondo continued to help Bobbie and her adult daughter, and he often took Bobbie to doctor’s appointments.
In August 2017, Bobbie paid off Elizondo’s mortgage and transferred her car title to him. On August 25, 2017, Bobbie was admitted to the hospital after suffering a heart attack. On August 31, 2017, nurse notes indicate Bobbie and her son, Robert Willingham, had a fight. The family discovered that Elizondo was in possession of Bobbie’s purse and house keys, and believed that Elizondo was stealing from Bobbie and unduly influencing her.
On September 1, 2017, Bobbie executed a simple will leaving all her estate to Elizondo. The will included handwritten statements that “Robert Willingham shall receive $1.00. Susan Hall is to receive 0 zero % of my properties, bank accounts, nor any stocks. Susan Hall is to receive nothing of mine.” Susan is Robert’s wife. Within hours of executing the will, Bobbie had heart surgery.
On September 27, 2017, Robert sued Elizondo for theft, undue influence of an elderly adult, and fraud.
Bobbie died on November 1, 2017. On November 6, 2017, the trial court issued a temporary injunction against Elizondo preventing him from attempting to sell or divert certain assets including, but not limited to, (1) a $29,360 check to Wells Fargo to “pay off” his mortgage (2) a $10,000 check from Wells Fargo, (3) multiple gold and silver items, (4) a 38-caliber pistol, and (5) a 2015 Ford Escape automobile.
Elizondo submitted Bobbie’s will for probate on December 6, 2017. Robert filed his objection to probating the will and requested a jury trial. The Texas jury determined Bobbie’s will was invalid and found Elizondo committed civil theft with the value of the stolen property being greater than $20,000. The jury also awarded attorney’s fees for trial and future appellate attorney’s fees.
Validity Of the Will Under Texas Law
A will is valid under Texas law if it is
- In writing
- Signed by: a) The testator in person; or b) Another person on behalf of the testator i) in the testator’s presence; and ii) under the testator’s direction; and
- Attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.
Elizondo argued that the evidence was legally and factually insufficient to support the jury’s finding that Bobbie’s will was invalid. Specifically, Elizondo urged that the arguments at trial “contorted the meaning” of a “credible witness” to a will. However, the Texas appellate court determined that Elizondo did not preserve his sufficiency challenges to the validity of the Texas will, because he did not present the proper motions or objections at trial.
Civil Theft Under Texas Law
Elizondo was also found guilty of civil theft, specifically, that he stole a $10,000 check, used a $29,360 Wells Fargo check from Bobbie to pay off his mortgage, took silver and gold items, stole a gun, and coerced Bobbie into signing over her car title to him.
The Texas Theft Liability Act permits a civil cause of action for damages against a party who commits theft via any of the numerous methods defined under the Texas Penal Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 134.003 (creating civil claim for “theft”); TEX. PENAL CODE ANN. §§ 31.03, 31.10 (defining “theft”).
Under the theory applicable to this case, Robert had to prove by a preponderance of the evidence that Elizondo unlawfully appropriated Bobbie’s property with intent to deprive her, or another person who had the right of exclusive possession, of the property without their effective consent. See Brown v. Kleerekoper, No. 01-11-00972-CV, 2013 WL 816393, at *3 (Tex. App.—Houston [1st Dist.] Mar. 5, 2013, pet. denied) (mem. op.).
Intent To Deprive Under the Texas Civil Theft Liability Act
The relevant “intent to deprive” is the person’s intent at the time of the taking and can be inferred from the words and acts of the person. See McCullough v. Scarbrough, Medlin & Assoc., Inc., 435 S.W.3d 871, 906 (Tex. App.—Dallas 2014, pet. denied); see also Arey v. Shipman Agency, Inc., No. 10-18-00100-CV, 2019 WL1966896, at *4 (Tex. App.—Waco May 1, 2019, pet. denied) (mem. op.).
Intent, absent direct admission, is usually inferred from circumstantial evidence. See Sky Group, LLC v. Vega St. 1, LLC, No. 05-17-00161-CV, 2018 WL 1149787, at *6 (Tex. App.—Dallas Mar. 5, 2018, no pet.) (mem. op.).
Intent is generally an issue of fact because it depends on the credibility of the witnesses and the weight to be given their testimony.
Here, the jury found that Elizondo committed theft, and that the value of the stolen property was $20,000 or greater, against the Estate of Bobbie Willingham. Elizondo argued on appeal that there was no evidence presented that Elizondo acted with intent to deprive anyone of property. He argued that: (1) the evidence overwhelmingly established that Bobbie left her estate to Elizondo; (2) Elizondo and his wife testified that Bobbie decided to pay off their mortgage and that Bobbie gave them $10,000; (3) there was no contrary evidence that would have allowed a jury to rationally believe he stole property from Bobbie; and (4) “efforts to characterize Bobbie as ‘crazy’ or ‘out of her mind’ or otherwise lacking capacity were unsuccessful.”
The Texas court reviewed the evidence presented by both sides and stated:
The jury heard two versions of what happened to the property: Elizondo denying taking or influencing Bobbie to give him her property and family members testifying to the contrary. As the judge of witness credibility, the jury was free to believe the family. City of Keller, 168 S.W.3d at 819–20. We conclude the evidence, which in this case is circumstantial and depends on witness credibility, is not so weak as to make the jury finding clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176; see also Sky Group, LLC, 2018 WL 1149787, at *6 (“Intent, absent direct admission, is usually inferred from circumstantial evidence” and intent depends on the credibility of the witnesses and the weight to be given their testimony). Thus, the evidence is factually sufficient to support the jury’s finding of civil theft. We overrule Elizondo’s third issue.
The Texas appellate court reversed the jury’s award of future appellate attorney’s fees, because there was no evidence as to what a reasonable attorney’s fee would be for the necessary services in the event of an appeal.