APPELLEE’S BRIEF i . 06-15-00030-CV

NO. 06-15-00030-CV

______________________________________________________________________________ 

IN THE SIXTH DISTRICT COURT OF APPEALS AT 

TEXARKANA, TEXAS

______________________________________________________________________________ 

LETA YORK 

Appellant, 

v.

TODD BOATMAN 

Appellee. 

______________________________________________________________________________ 

ON APPEAL FROM THE 62ND JUDICIAL DISTRICT COURT, 

HOPKINS COUNTY, TEXAS 

CAUSE NO. CV 414000, THE HONORABLE WILL BIARD, PRESIDING 

______________________________________________________________________________ 

APPELLEE’S BRIEF

______________________________________________________________________________ 

Larry A. Powers 

Powers & Blount 

P.O. Box 877 

Sulphur Springs, Tx 75483 

ATTORNEY FOR APPELLEE 

ACCEPTED

06-15-00030-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

12/2/2015 2:57:36 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 12/2/2015 2:57:36 PM DEBBIE AUTREY Clerk
APPELLEE’S BRIEF ii . 06-15-00030-CV

IDENTITY OF PARTIES AND COUNSEL

Appellant/Plaintiff Appellee/Defendant

Leta York Todd Boatman

Trial and Appellate Counsel

Phil Smith Larry A. Powers

300 Oak Ave. P.O. Box 877

Sulphur Springs, Tx 75482 Sulphur Springs, Tx 75483

903.439.3000 903.885.6506

903.439.3110 (fax) 903.885.1199 (fax)

Psmith300@hotmail.com pb4us@yahoo.com
APPELLEE’S BRIEF iii . 06-15-00030-CV

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.................................................. ii

TABLE OF CONTENTS........................................................................ iii

INDEX OF AUTHORITIES..................................................................... iv

I. STATEMENT OF FACTS......................................................... 1

II. SUMMARY OF ARGUMENT.................................................... 3

III. REPLY ARGUMENT POINT ONE.............................................. 4

IV. REPLY ARGUMENT POINT TWO.............................................. 6

V. REPLY ARGUMENT POINT THREE............................................ 7

VI. CONCLUSION....................................................................... 9

VII. PRAYER.............................................................................. 9

VIII. CERTIFICATE OF SERVICE..................................................... 10
APPELLEE’S BRIEF iv . 06-15-00030-CV

INDEX OF AUTHORITIES

PAGE

Burgess v. Easley, 893 S.W.2d 87 (Tex App – Dallas 1994, no writ) 5

Davis v. Zeanon, 111 S.W.2d 772 (Tex Civ. App – Waco 1937, writ ref’d) 4

Geldard v. Watson, 214 S.W.3d 202, 207 (Tex. App-Texarkana 2007, no pet.) 4

Hand v. Evrington, 242 S.W. 722 (Tex. Com. App 1922, opinion adopted) ....... 9

Hughes v. Wright, 127 S.W.2d 215, 218 (Tex. Civ. App. – Waco 1939, no writ) 8

Landram v. Robertson, 195 S.W.2d 170 (Tex. Civ. App. – San Antonio 1946, writ ref’d n.r.e.) 9

Richardson v. Laney, 911 S.W.2d 489 (Tex. App. – Texarkana 1995, no pet.) . 5

Woodworth v. Cortz, 660 S.W.2d 561 (Tex. App. – San Antonio 1983, writ ref’d n.r.e.) 4

RULES AND STATUTES

Tex. Civ. Prac. & Rem. Code-Section 16.051 8

Tex. Civ. Prac. & Rem. Code-Section 16.025 8

Tex. Civ. Prac. & Rem. Code-Section 16.026 8
APPELLEE’S BRIEF 1 . 06-15-00030-CV

STATEMENT OF FACTS

This is a declaratory action, not a trespass to title action, brought by Appellant to declare 

void a deed given by Appellant to her daughter, Gwendolyn Boatman to 153.185 aces in 

Hopkins County, Texas. In the alternative, Appellant seeks to impose a constructive trust on 

153.185 acres for the benefit of Appellant. 

The trial Court granted judgment in favor of Appellee, who is the grandson of Appellant 

and the son of Gwendolyn Boatman, of holding that legal title to the 153.185 acres vested in 

Appellee subject to an equitable life estate in Appellant to 4 acres of land upon which Appellant 

resides. 

In 1967, Appellant and her husband Henry York were conveyed a life estate in 4 acres 

which is a part of the 153.185 acres, by Appellant’s parents, W. L. Smith and Donnie Smith. 

Gwendolyn Boatman is named as the remainderman, in fee simple.

In 1985 after the death of her parents, Appellant received a partition deed to 153.185 

acres conveying fee simple title to Appellant. There were no reservation or exception contained 

in this deed. The 153.185 acres included the 4 acres mentioned above.

By general warranty deed dated August 10, 1995, Appellant conveyed the 153.185 acres 

to her daughter, Gwendolyn Boatman. The conveyance was subject to the homestead/life estate 

interest of Henry A. York who did not join in the deed. Henry York died on August 22, 1995, 

thereby extinguishing his homestead/life estate interest.

Shortly after the death of Henry A. York, Gwendolyn Boatman informed Appellant that 

she claimed ownership of the 153.185 acres by reason of the August 10, 1995 deed and refused 

Appellant’s request to convey the 153.185 acres to Appellant.
APPELLEE’S BRIEF 2 . 06-15-00030-CV

After the date of the August 10, 1995, Gwendolyn Boatman exercised all the right of title 

and ownership to the 153.185 acres up until the time of her death. Gwendolyn Boatman 

occupied the property, paid the ad valorem taxes on the property, claimed a homestead 

exemption on the property and utilized the property in her cattle operation.

In 2004 and 2005 Gwendolyn Boatman again informed Appellant, that she claimed 

ownership of the 153.185 acres and Appellant took no action to dispute this claim.

Gwendolyn Boatman died on April 22, 2012 leaving a will naming Appellee as the sole 

beneficiary of her estate which included the 153.185 acres. Gwendolyn Boatman’s will was 

admitted to probate on June 12, 2012.
APPELLEE’S BRIEF 3 . 06-15-00030-CV

SUMMARY OF ARGUMENT

REPLY TO POINT ONE - The 1995 Deed from Appellant to Gwendolyn Boatman was clear on 

its face as a conveyance of Appellant’s present interest in the 153.185 acres. There were no 

restrictions or exception in the 1995 Deed evidencing that any of Appellant’s interest were to 

take place in the future.

REPLY TO POINT TWO – The record clearly supports the Court’s Finding of Facts and 

Conclusions of Law.

REPLY TO POINT THREE – Gwendolyn Boatman, Appellee’s predecessor in interest clearly 

repudiated any trust/agreement both verbally in 1995 and in the subsequent interpleader litigation 

in 2004 – 2005.
APPELLEE’S BRIEF 4 . 06-15-00030-CV

REPLY TO APPELLANS POINT ONE

• Appellant argues that the 1995 Deed from Appellant to Gwendolyn Boatman was not 

valid because it was not a gift of a present interest, due to the fact that the 1995 Deed 

failed to exclude the prior life estate interest or the homestead interest of Appellant’s 

husband, Henry A. York.

The 1995 Deed is clear on its face that Appellant was conveying her fee simple title in 

the 153.185 acres to Gwendolyn Boatman. There are no reservations or exceptions noted 

in the Deed.

 At the time of the 1995 Deed, Appellant owned the full fee simple title to 153.185 

acres. Appellant was free to convey fee simple title to Gwendolyn Boatman subject to 

the life estate and homestead interest of her husband. The 1995 Deed was a clear 

conveyance of the present interest of Appellant. There is no indication in the 1995 Deed 

that Appellant was not conveying all of her present right title and interest in the 153.185 

acres, or that there was any of Appellant’s interest which would take place in the future. 

Davis v. Zeanon, 111 S.W.2d 772 (Tex. Civ. App. – Waco 1937, writ ref’d); Woodworth 

v. Cortz 660 S.W.2d 561 (Tex. App. – San Antonio 1983, writ ref’d n.r.e.)

 The life estate and homestead interest of Appellant’s husband were extinguished upon 

his death on August 22, 1995, some twelve (12) days after the conveyance. Geldard v. 

Watson 214 S.W.3d 202, 207 (Tex. App-Texarkana 2007,no pet.).

• Appellant argues that there was no donative intent on her part since the purpose of the 

conveyance was to “protect the property from government” in the event her husband 

received government benefits subject to reimbursement from Appellant’s property. 

Assuming that this scheme is true, in order for Appellant to accomplish this goal it was 
APPELLEE’S BRIEF 5 . 06-15-00030-CV

necessary for her to make a valid conveyance to Gwendolyn Boatman. That is Appellant 

had to intend the conveyance as a gift of Appellant’s interest to her daughter, Gwendolyn 

Boatman. The evidence on the purpose of the conveyance is at best unclear. It was 

incumbent on Appellant to prove by clear and convincing evidence the lack of donative 

intent Richardson v. Laney, 911 S.W.2d 489 (Tex. App. – Texarkana 1995,no pet.). The 

Court as the trier of fact did not find Appellant lack donative intent with regard to the 

1995 Deed or that it was not to take effect upon execution and delivery to Gwendolyn 

Boatman. The trial found that the August, 1995 Deed was valid. (Clerk’s file p 223) 

What is clear, is that Appellant intended to divest herself of title to the 153.185 acres by 

reason of the 1995 Deed. Burgess v. Easley 893 S.W. 2d 87 (Tex App – Dallas 1994, no 

writ)

• Appellant argues that the 1995 Deed was ineffective because Gwendolyn Boatman did 

not take immediate possession of the 153.185 acres. Gwendolyn Boatman accepted and 

recorded the 1995 Deed. The Court as the trier of fact found that Gwendolyn Boatman 

had exercised all of the rights of title and ownership since the 1995 Deed until her death. 

(Clerk’s file p. 223). As noted above Gwendolyn Boatman occupied the 153.185 acres, 

paid the ad valorem taxes on the 153.185 acres, claimed a homestead exemption to the 

153.185 acres and utilized the 153.185 acres in her cattle operation. (RR2 p. 224 Ln 12 

to p. 225 Ln 2; p. 226 Ln 10 – 18; p. 231 Ln 12 to p. 232 Ln 16; RR3 Ex. 19 p. 218; Ex. 

20 p. 219 – 229; Ex. 21 p. 235 Ln 25 to p. 236 Ln 9)

• Regardless of whether the 1995 Deed was a gift or for some other purpose, it was 

incumbent on Appellant to overcome the 1995 Deed which was clear on its face as a 
APPELLEE’S BRIEF 6 . 06-15-00030-CV

conveyance of the 153.185 acres. The Court as the trier of fact was unconvinced by 

Appellant’s testimony and evidence as to Appellants other purposes or intentions. 
APPELLEE’S BRIEF 7 . 06-15-00030-CV

REPLY TO APPELLANS POINT TWO

• Appellant argues that there is not evidence or insufficient evidence as follows:

Finding of Fact #3

The record reflects that Henry A. York died on August 22, 1995, according to 

Appellant’s Affidavit. (Clerk’s file page 161)

• Finding of Fact #4 & 5

The recitation in the Court’s Finding of Fact and Conclusion of Law regarding the 

August 1995 deed is an obvious clerical error stating the date of the 1995 Deed to be 

August 8, 1995 rather than August 10, 1995. The parties agree the 1995 Deed was 

August 10, 1995, and the evidence supports this fact. 

• Finding of Fact #6

Shortly after the death of Gwendolyn Boatman, Appellee occupied the 153.185 acres as 

his homestead, made improvements to the 153.185 acres and utilized the 153.185 acres 

for his cattle operation. (RR2 p. 218 Ln 19 to p. 219 Ln 1; p. 221, Ln 21to p. 222 Ln 5; p.

224 Ln 24 to p. 225 Ln 2; p. 247 Ln 17)(RR3 Ex. 20 p. 237 – 229) 
APPELLEE’S BRIEF 8 . 06-15-00030-CV

REPLY TO APPELLANS POINT THREE

 Appellant argues that the 1995 Deed if valid, was intended to be held by Gwendolyn

Boatman in trust for her benefit. Even if this position is assumed to be correct, there was a clear 

repudiation of the trust/agreement by Gwendolyn Boatman in 1995 and again in 2004 – 2005.

• In Appellant’s deposition she admitted that Gwendolyn Boatman had refused to deed the 

153.185 acres back to Appellant, shortly after the death of her husband on August 22, 

1995. (RR 3 – Ex. 21 p. 231 Ln 21 to p. 232 Ln 5). Further Appellant testified that she 

did not know what the handwritten notes meaning was with regard to the 1995 Deed.

• In 2004 Appellant attempted to recover a gift Deed to the 153.185 acres through her 

attorney, Lanny Ramsay. Gwendolyn Boatman had executed and delivered to her 

attorney Jay Garrett the gift Deed which was held in escrow and never delivered. 

Gwendolyn Boatman was at the time of the gift Deed facing surgery for breast cancer and 

a divorce proceeding and the clear intention of Gwendolyn Boatman was the gift Deed 

would only take effect if she did not survive her breast cancer treatments. Gwendolyn 

Boatman repudiated the gift Deed and requested its return to her. Gwendolyn Boatman 

further filed a recession of the gift Deed with the Hopkins County Clerk. Subsequently, 

Jay Garret filed an interpleader action placing the gift Deed in the registry of the Court. 

The Court ordered the gift Deed be returned to Gwendolyn Boatman (RR3 – Ex 9 – 16 p. 

186 - 199)

The foregoing is clear repudiation of Appellant’s claim that the 153.185 was held by 

Gwendolyn Boatman for the benefit of Appellant. On neither occasion in 1995 or 2005 

did Appellant take any action to recover title to the 153.185 acres, in spite of the clear 

repudiation of any trust/agreement. It was only after Gwendolyn Boatman’s death in 
APPELLEE’S BRIEF 9 . 06-15-00030-CV

2012, that Appellant filed this lawsuit some eighteen (18) years after she had conveyed 

the 153.185 acres to Gwendolyn Boatman.

Clearly, Appellant was on notice that Gwendolyn Boatman was claiming title to 

the 153.185 acres regardless of any alleged agreement to reconvey the 153.185 acres to 

Appellant (RR3 – Exs 9 – 16; 21)

Appellant’s cause of action for the imposition of a constructive trust are barred by 

the applicable statutes of limitation. Section 16.051 Tex. Civ. Prac. & Rem. Code; 

Section 16.025 Tex. Civ. Prac. Rem. Code and Section 16.026 Tex. Civ. Prac. Rem. Code 

Hughes v. Wright 127 S.W.2d 215, 218 (Tex. Civ. App. – Waco 1939, no writ); Landram 

v. Robertson 195 S.W.2d 170 (Tex. Civ. App. – San Antonio 1946, writ ref’d n.r.e.) and 

Hand v. Evrington 242 S.W. 722 (Tex. Com. App 1922, opinion adopted) 
APPELLEE’S BRIEF 10 . 06-15-00030-CV

CONCLUSION

WHEREFORE, Premises Considered, Appellee prays:

• The 1995 conveyance was valid regardless of the Appellant’s intent.

• The evidence clearly supports the Court’s Findings of Fact and Conclusions of Law.

• The corroborative witnesses of Appellant were not credible

• Appellant’s cause of action for a constructive trust were barred by the statute of 

limitations.

PRAYER

Appellee, requests that this Court affirm the ruling of the trial court. Appellee 

requests all other relief to which it may be entitled. 

Respectfully submitted,

Powers & Blount, LLP

By: /s/Larry A. Powers

Larry A. Powers

Texas Bar No. 16218500

P.O. Box 877

200 Jackson St.

Sulphur Springs, Tx 75483

Tel. (903) 885-6506

Fax. (903) 885-1199

Email: pb4us@yahoo.com

Attorney for Appellee
APPELLEE’S BRIEF 11 . 06-15-00030-CV

 CERTIFICATION OF SERVICE

I hereby certify that a true and correct copy of the foregoing Appellee’s Brief was served 

on Phil Smith, 300 Oak Ave., Sulphur Springs, Texas 75482, counsel of record for Appellant in 

the above entitled and numbered cause this the 2

nd day of December, 2015, in the following 

manner:

_____ Via Facsimile

_____ Via Certified Mail, Return Receipt Requested _________________

 X Via First Class Mail

_____ Via Hand Delivery

 X Via E-mail psmith300@hotmail.com

/s/Larry A. Powers

_______________________________

LARRY A. POWERS