Affirmed and Memorandum Opinion filed July 15, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00666-CV

DEANA KAY COLLIER GREENFIELD, Appellant

V.

ROBERT RAY GREENFIELD, RUSSEL CLARIS GREENFIELD, LEE 

ANN HEISTAND, PATRICIA GREENFIELD, AND GILBERT ANTHONY 

QUINTANILLA, Appellees

On Appeal from the 418th District Court

Montgomery County, Texas

Trial Court Cause No. 12-05-05875 CV

M E M O R A N D U M O P I N I O N

In this declaratory-judgment action, the appellant contends that the trial 

court erred in granting judgment notwithstanding the verdict after a jury found that 

she and her late husband had an informal marriage for nineteen years before their 

ceremonial marriage. Because we conclude there is legally insufficient evidence 

that the couple held themselves out as married before they wed in a formal 
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ceremony, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Deana Kay Collier Greenfield (“Kay”) and Claris Russell Greenfield Jr. 

(“Russ”) were formally married on January 4, 2008, and he died two years later.1 

Kay instituted probate proceedings in a county court at law, but a dispute arose 

about whether she and Russ had an informal marriage before their ceremonial 

marriage. She filed a petition for declaratory judgment to resolve the question 

about the date of her marriage, and the declaratory-judgment action was severed 

into a separate proceeding before a district court. That case was tried before a jury, 

which found that Kay and Russ were married in 1989. Appellees Robert Ray 

Greenfield (“Bob”), Russel Claris Greenfield (“Russel”), Lee Ann Heistand, and 

Patricia Greenfield (“Pat”) (collectively, “the Greenfield appellees”) moved for 

judgment notwithstanding the verdict (“JNOV”).2The trial court granted the 

motion and rendered judgment that Kay and Russ were not married before January 

4, 2008. In the sole issue presented on appeal, Kay contends that the trial court 

erred in granting the JNOV.

II. ANALYSIS

In the absence of some impediment to marriage, an informal marriage exists 

if a “man and woman agreed to be married and after the agreement they lived 

together in this state as husband and wife and there represented to others that they 

were married.” TEX. FAM. CODE ANN. § 2.401(a)(2) (West 2006). An informal 

marriage does not begin until all three elements—agreement, cohabitation, and 

 

1 When more than one party or witness has the same surname, we refer to each by the 

version of that individual’s given name used at trial. 

2 Gilbert Anthony Quintanilla, the remaining appellee, did not join in the motion and did 

not file a brief in this appeal.
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representation—are present. Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. 

App.—Houston [1st Dist.] 1991, writ denied). The trial court granted the JNOV 

on the grounds that “there is insufficient evidence” that before January 4, 2008, 

Kay and Russ (a) agreed to be married, and (b) “represented to others as married.” 

If evidence of either element is lacking, we must affirm the judgment.

We review a judgment notwithstanding the verdict for legal sufficiency of 

the evidence supporting the jury’s findings. City of Keller v. Wilson, 168 S.W.3d 

802, 823 (Tex. 2005). We “‘credit evidence favoring the jury verdict if reasonable 

jurors could, and disregard contrary evidence unless reasonable jurors could not.’” 

Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009)

(quoting Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 

2007)). If more than a scintilla of competent evidence supports the jury’s finding, 

then we will uphold the verdict rather than the JNOV. Id. “The final test for legal 

sufficiency must always be whether the evidence at trial would enable reasonable 

and fair-minded people to reach the verdict under review.” City of Keller, 168 

S.W.3d at 827.

A. The trial court did not evaluate the evidence by the wrong standard.

Kay contends that the JNOV must be reversed because the trial court stated 

that there was “insufficient evidence” of two of the elements of informal marriage, 

not that there was “no evidence.” We understand Kay to argue that the trial court’s 

use of the phrase “insufficient evidence” indicates that when determining whether 

to grant the JNOV, the trial court failed to use the no-evidence standard that 

properly applies. See Tanner, 289 S.W.3d at 830 (“We review a JNOV under a noevidence standard . . . .”). We disagree.

We construe judgments as a whole, and in doing so, we may consider the 

record as well as the language of the judgment. Point Lookout W., Inc. v. Whorton, 
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742 S.W.2d 277, 278 (Tex. 1987) (per curiam). In their motion for JNOV, the 

Greenfield appellees argued that there was “no evidence sufficient” to prove the 

elements of an informal marriage. They further clarified that “no evidence” does 

not mean “literally no evidence whatsoever; but rather that the evidence [Kay] 

offered is legally insufficient to establish” the challenged elements. 

The terms “no evidence” and “legally insufficient evidence” are used 

interchangeably. See, e.g., Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 115 (Tex. 

2013) (per curiam) (“Because there is no evidence [of proximate cause], the 

evidence is legally insufficient to support the finding . . . .”); Sw. Bell Tel. Co. v. 

Garza, 164 S.W.3d 607, 620 (Tex. 2004) (“[N]o evidence is sometimes referred to 

as being legally insufficient . . . .”). In stating that there was “insufficient 

evidence” of two elements necessary to establish the existence of an informal 

marriage, we understand the trial court to mean that the evidence was legally 

insufficient, which is the same as no evidence. Cf. Commercial Union Assurance 

Co. v. Foster, 379 S.W.2d 320, 323 (Tex. 1964) (explaining that where a plaintiff 

used the terms “no evidence” and “insufficient evidence” in briefing the same 

point of error, the court construed “insufficient evidence” to mean “legally 

insufficient evidence”). We apply the same standard on review.

B. The trial court’s denial of the Greenfield appellees’ summary-judgment 

motion does not preclude judgment notwithstanding the verdict.

Kay also points out that before the case was tried before a jury, the trial 

court denied the Greenfield appellees’ motion for final summary judgment. She 

argues that the trial court erred in granting the JNOV because the denial of the 

summary-judgment motion established that there is legally sufficient evidence of 

each element of an informal marriage. We disagree. 

Where a case is subsequently tried on the merits, it cannot fairly be said that 
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an earlier interlocutory ruling denying the defendants’ summary-judgment motion 

“established” the legal sufficiency of the evidence supporting the plaintiff’s claim. 

See Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966) (addressing 

some of the reasons for the rule that such an interlocutory ruling is unreviewable 

after a conventional trial on the merits). We cannot say even that the summaryjudgment ruling was or was not correct, because we do not have jurisdiction to 

review it. See Ogletree v. Matthews, 262 S.W.3d 316, 319 n.1 (Tex. 2007) (“Texas 

appellate courts have jurisdiction only over final orders or judgments unless a 

statute permits an interlocutory appeal.”).

On the other hand, we can review the trial court’s ruling on the JNOV 

motion, and for the reasons set forth below, we find no error in that ruling.

C. There is legally insufficient evidence that before January 4, 2008, Kay 

and Russ represented to others in Texas that they were married.

To satisfy the statutory requirement of representing to others that they are 

married, the couple must represent in Texas that they are married. Winfield, 821 

S.W.2d at 648. This “is synonymous with the judicial requirement of ‘holding out 

to the public.’” In re Estate of Giessel, 734 S.W.2d 27, 30 (Tex. App.—Houston 

[1st Dist.] 1987, writ ref’d n.r.e.). “Holding out” may be established by the 

couple’s conduct and actions. Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App.—

Houston [1st Dist.] 1998, no pet.).

Viewing the evidence in the light most favorable to the jury’s findings, we 

conclude that it is legally insufficient to establish that Russ and Kay represented 

themselves in Texas as a married couple. There is no evidence that at any time 

during the alleged informal marriage, Russ and Kay ever identified themselves—

orally or in any document—as married, or made such a representation by their 

conduct. For example, there is no evidence that they ever used the same last name, 
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had a joint account, commingled assets, shared debts, wore wedding rings, or had a 

reputation in the community as married.

3

 The evidence instead shows only that the 

couple who lived next door and one of Russ’s employees assumed that they were 

married. 

According to the evidence presented at trial, Kay and Russ met around 1983, 

and Russ moved into Kay’s house in 1989. Kellie and Chuck Mazzilli bought the 

house next door and after remodeling it, began living there in 1989 or the early 

1990’s. Kellie testified that the question of whether Russ and Kay were married 

never came up. She thought of them as a couple, but she never heard anyone refer 

 

3 Cf. Claveria’s Estate v. Claveria, 615 S.W.2d 164, 167 (Tex. 1981) (evidence was 

legally sufficient where husband previously testified that he was married; both parties signed 

documents in connection with their purchase of a house identifying them as married; and the 

documents were notarized and filed in the public records); Bailey v. Thompson, No. 14-11-

00499-CV, 2012 WL 4883219, at *10–12 (Tex. App.—Houston [14th Dist.] Oct. 16, 2012, no 

pet.) (mem. op.) (evidence of representation was legally sufficient where the couple introduced 

themselves as married; wore wedding rings; identified husband in writing as related to wife’s

children; had a joint account with rights of survivorship; husband transferred personal balances 

to wife’s credit card; husband referred to himself as the stepfather of wife’s daughter; husband

did not correct the daughter when she introduced him as her stepfather; husband did not object 

when wife’s mother sent him a card referring to him as “son-in-law”; and husband’s son 

identified the couple as married); Riley v. Riley, No. 14-11-00346-CV, 2012 WL 2550957, at *3 

(Tex. App.—Houston [14th Dist.] July 3, 2012, no pet.) (mem. op.) (evidence was legally 

sufficient where husband attested that the parties publicly referred to each other as husband and 

wife; she wore her wedding ring for many years; they had a joint checking account; they “bought 

houses together as husband and wife”; and they commingled cash and assets); In re Estate of 

Collier, No. 09-10-00263-CV, 2011 WL 2420989, at *4 (Tex. App.—Beaumont June 16, 2011, 

no pet.) (mem. op.) (evidence of representation was legally sufficient where wife presented 

evidence that husband referred to her as his wife, gave her plaques addressed “to my wife,” and 

included her as his beneficiary on employee-benefits plans); Barbee v. Barbee, No. 12-09-

00151-CV, 2010 WL 4132766, at *3–4 (Tex. App.—Tyler Oct. 20, 2010, no pet.) (mem. op.) 

(evidence of representation was legally sufficient where wife represented to others in husband’s 

presence that they were married and he did not deny it; wife signed a notarized statement during 

the informal marriage identifying herself as his wife; couple had joint checking account; after 

husband was in an accident, wife received settlement of her claims based on her status as his 

wife; and husband saw other women only at out-of-town locations); Hart v. Webster, No. 03-05-

00282-CV, 2006 WL 1707975, at *3 (Tex. App.—Austin June 23, 2006, no pet.) (mem. op.) 

(evidence of representation was legally sufficient where it was undisputed that the couple 

exchanged wedding rings, filed joint tax returns, and consistently referred to each other as 

husband and wife).
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to them as married until after their ceremonial marriage in 2008. Chuck testified 

that he assumed Russ and Kay were married, but they never were introduced to 

him as a married couple nor did he hear anyone say that they were husband and 

wife. Gilbert Anthony Quintanilla, Russ’s employee for about twenty-eight years, 

testified that he assumed Russ and Kay were married, although neither of them 

said so. To the contrary, Quintanilla testified that Russ introduced Kay as his 

girlfriend. 

Kay argues that the evidence in this case closely parallels the evidence found 

to be legally sufficient in In re Estate of Giessel. We disagree. In that case the 

evidence of “holding out” included evidence that the man referred to the woman as 

his wife; both parties referred to each other as married; people referred to the 

couple as “Mr. and Mrs. Giessel”; neither party corrected the appellation; and the 

wife helped pay the debts of the husband’s parents after their death. Giessel, 734 

S.W.2d at 28–30. No such evidence is present here.

The evidence in this case most closely resembles that of Mills v. Mest, 94 

S.W.3d 72 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). In Mills, as here, 

the couple began living together many years before they were ceremonially 

married. Id. at 73. There was no evidence that the man ever introduced the 

woman as his wife, although—unlike here—one witness recalled the woman 

introducing the man as her husband. Id. at 74. As in this case, it was argued in 

Mills that circumstantial evidence established that the representation requirement 

was met because “several friends and neighbors testified they considered the two 

to be married because they lived together and held hands, showed 

affection, . . . ‘did everything together’ . . . [and] took care of each other during 

sicknesses.” Id.. We rejected that argument. 

As we explained in Mills, a couple can represent by their conduct that they 
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are married, but “inherent in the concept [of “holding out”] is behavior intended as 

a communication to third parties, not just intimate behavior in general.” Id. at 75. 

The expression of affection and companionship is not unique to marriage, but is 

equally consistent with courtship or a close non-marriage relationship. Id. 

Because expressing affection, sharing activities, and caring for one another in 

illness are not the kinds of conduct that are “intended as a communication to third 

parties,” we concluded that the evidence was legally insufficient to support a 

finding that the couple represented that they were married. See id. The same is 

true here.

Having concluded that the evidence is legally insufficient to support the 

jury’s finding that Russ and Kay were informally married in 1989, it is 

unnecessary for us to determine whether the evidence supports the existence of an 

agreement to be married. 

III. CONCLUSION

Because there is legally insufficient evidence that Kay and Russ represented 

that they were married before January 4, 2008, we overrule the sole issue presented 

for review and affirm the trial court’s judgment notwithstanding the verdict.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Jamison, and McCally.