### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00258- CV

Randall Holt and Judy H olt, Appellan ts

v. Sond ra K elso, Independ ent Adm inis trat or of the Estate of Helen Jones Schw eng, Dec eased, Appellee

F ROM TH E P ROB ATE COURT NO . 1 O F TRAVIS CO UNTY NO. C-1 -P B -08 -01 0617 , H ONO RAB LE GUY S. H ERMAN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellee Sondra Kelso, in her capa city as independe nt administrator of the estate of Helen J ones Schweng , broug ht suit ag ainst Peg g y McCoy , Eug ene Br au n , and appellants Randall Holt a

nd J udy Holt to r ecove r estate assets. Following a bench trial, the trial court found 1
all four defenda

nts jointly and severally liable t o S o n d ra fo r brea ch of fiduciar y duty , conver sion, theft, and civil conspirac y and awa rded damag es of $319,203.88. On appea l, the Holts challeng e the suffic i en cy o f t h e evidenc e to support the judgme nt and contend that the trial court abused its discretion when it admitted expert testimony from Sondra’s brother. For the rea sons that follow, we aff irm the judg ment. 2

Be ca u s e the parties and other persons involved in this case have the same surname, we 1 ref er to individuals by

their g iven names. Pending befor e this Court is appellee Sondra Ke l s o ’s p l ea of no jurisdiction. Sondra 2 contends that this Court lacks jurisdiction beca use the Holts’ notice of appea l was not timely

. TheBACK GR OUND Helen Schweng was the materna l g randmother of Sondra Ke lso. Randall Holt was Hele n ’s n ephew , and J udy Holt is his wife. Peg g y McCoy and Eug ene Br aun, the other two defe ndants, wer e also He len’s niec e and ne phew. 3

So n d ra was born in 1966, and she was the only child of Donna Schweng , Helen’ s daug hter. Donna gav e S o n d ra up for adoption, but they made contac t in the ear ly 1990s and develope d a relationship. They maintained their relationship until Donna died in Fe bruar y 1997.
Donn a’ s will named her boy friend Paul Caputo as her independe nt executor and bequeathed her entire estate to him and the n to Sondra if he did not survive Donna by 30 day s. After Donna died,
J udy assisted Paul with his executor duties. J udy sear ch ed Paul and Donna’ s house for rele vant documents and found, among other documents, Donna’ s will, a power of attorney signe d by Helen, and uncashe d chec ks pay able to Helen. J u d y cashe d some of the chec ks and forwa rded Helen’ s
power of attorney to Peg g y . The power of att o rn ey appointed Donna as her mother’s ag ent and attorney in fac t and Peg g y

as the substitute in the event Donna was not ava ilable.

Holts’ notice of appea l was fi led within fiftee n day s afte r the deadline for filing their notice of appea l. See Tex. R. App. P. 26.1, 26.3. The Holts f iled a letter with this Court explaining that the delay in filing the notice of appea l was due to their former counsel’s h ea l t h i s s u es and his inadver tence or m istake. See Hone v. Ha n a fin , 104 S.W .3d 884, 887 (Tex. 2003) (“[R ]easonable explana t i o n i s ‘a n y plausible statement of circ umstances indicating that failure to file within the [specified] period was not delibera te or intentional, but was the resu l t of i nadver tence , mistake or mischance .’” (citation omitted)). We imply a motion for extension of time to file the notice of appea l, deem the Holts’ notice of appea l timely , and deny Sondra’s plea of no jurisdiction. See Tex. R. App. P. 26.3; Verburgt v. Dorner , 959 S.W .2d 615, 617 (Tex. 1997) (motion for extension of time for f iling cost bond “ nece ssarily implied”). Peg g y McCoy and Eug ene B raun ha

ve not appe aled the f

inal judgme nt. 3 2Donna was an only child. She survived her fathe r but prede cea sed Helen. After her

fathe r died, Donna manag ed Helen’ s financ es and a ffa irs with the power of attorne y . Around that time, Helen beg an li ving in a nursing facility as she wa s diag nosed wit h Alzheimer’s Disease and dementia. Donna continued to manag e her mother’s financ es and aff airs until Donna died in 1997. After Donna died, Peg g y assumed responsi b i l ity for Helen’ s financ es and aff airs, using Helen’ s
power of attorne y

in which Peg g y

was na med the substitute ag ent and a ttorney in fac t. Helen died on J uly 31, 2001. Peg g y , Eug ene, and Randall (the “cousins”) applied to administer Helen’ s estate in J uly 2005. The cousins did not ref ere nce Sondra in the application and claimed t hat they wer e the “owne rs of all of [Helen]’s Estate.” The probate court appointed an attorney ad litem to repre sent any unknown heirs. The attorney ad litem located Sondra

and, af ter unsealing her adoption paper s, deter mined that her inheritanc e rig hts had not been sever ed when she

was a dopted. Sondra ther eaf ter filed an application to administer Helen’s estate . After a hea ring , the court found t h at Sondra was the sole heir of Helen and appointed her as independe nt administrator of He len’s esta te.

Sondra filed this suit to rec over estate assets in Dec ember 2008. Among her claims, she alleg ed brea ch of fiduciar y duty by Peg g y and conspirac y by all the defe ndants to unlawfully take assets from Helen, her estate, and her h ei r. S h e sought over $500,000 in damag es. The case was tried to the court in April 2010. Sondra, Randall, and J udy testified, as well as the attorney ad litem,

one of Sondra’s friends, one of Helen’ s car eg ivers, and Sondra’s brother who provi ded expert testimony as an acc ountant conce rning court-or der e d s w o r n a c c o u n ting s filed by Randall, Peg g y , and Eug ene. Deposition testimony of Randall, J ud y , P eggy , and one of Helen’ s doctors also was

3admitted. The exhibi ts included Hel en ’s p o we r of attorney , the sworn acc ountings with back- up

financ ial information, and letters written by J udy to Peg g y around the time of Donna’ s death in 1997.
I n the letters, J udy addre ssed Helen’ s power of attorney and ideas for tran s fe rr i n g as sets. J udy advised Peg g y

that “[p] ower

of attorne y s cea se at de ath.” The evidenc e at trial was undisputed that Peg g y used the power of attorney to transfe r Helen’ s assets to the cousins. She purcha sed an annuity policy pay able to the cousins upon Helen’ s death with Helen’ s money , and she wrote chec ks to herse lf and Eug ene from Helen’ s acc ounts while Helen was alive. She also chang ed some of Helen’ s bank acc ounts to pay able on death acc ounts and added th e co u s ins’ names to the acc ounts. After Helen died in 2001, Peg g y continued to use the
power of attorney to transfe r Helen’ s assets to the cousins. Among other pay ments, she g ave chec ks to Eug ene a

nd Randall from He len’s ac counts at He len’s fune ral. The trial c o u

r t e n te r e d ju d g me n

t f o r So n d r a a n d a w a r d e d h e r $ 319,203.88 in damag es. The trial court found all four defe ndants jointly and sever ally liable to Sondra for brea ch of fiduciar y duty , conver sion, theft, and civil conspirac y . The parties did not reque st finding s of fac t and conclusions of law, but the trial judge stated his rea sons for his decision in a letter to the parties. The Holts filed a motion for new trial that was ove rruled by opera tion of law. This appe al followed.

ANALYSIS The Holts raise six issues on appea l. I n their first, third, fifth, and six th issues, they contend that the evidenc e was leg ally and fac tually insufficient to support the trial court’s finding s that they wer e liable for brea ch of fiduciar y duty , that they conver

ted proper ty belong ing to the estate, that the amount conver

ted amounted to $319,203.88, and that they conspired with any one to brea ch

4a fiduciar

y duty to Sondra or to ste al or conver t pr operty from Helen’ s estate. They also challeng e the s ufficie ncy of t he evidence to support sever al of the t rial judg e’s state ments in his letter to the parties. I n their second issue, they challeng e the trial court’s admissio n o f S o n d ra’s brother’ s testimony and, in their fourth issue, they contend that the probate court did not possess jurisdiction to rende r final judg ment holding the H olts li able f or “the ft.”
Sufficiency of

the Evidence Challenges
I n their first, third, fifth, and six th issues, the Holts raise sufficie ncy of the evidenc e challeng es to the trial court’s judgme nt and the trial judge ’s letter that explained his decision. Among their arg uments, they arg ue that there was no evidenc e th at they had a fiduciar y duty to Sondra or that they conspired with any one to brea ch a fiduciar y duty to Sondra or to conver t or steal
proper ty from Helen’ s es t at e. They also seek to limit their liability , if any , to amounts that they

actua lly rec eived. Although the Holts char acte rize statements in the trial judge ’s letter to the parties as finding s of fa ct, no finding s of fact or conclusions of law were requeste d or filed as conte mplated under the Texas Rules of

Civil Procedur e. See Tex. R. C iv. P. 296 (providing pr ocedur e for party
to reque st finding s of fac t and conclusions of law afte r judgme nt is signe d); see also Cherokee W ater Co. v. Gregg Cnty. Appraisal Dist. , 801 S.W .2d 872, 878 (Tex. 1990) (holding that ju d g e’s

comm en t s in letter to parties wer e not finding s of fac t “as contemplated by rules 296–299 of the
Texas Rules of Civil P ro cedur e”) ; Texas Bd. of Chiropractic Exam’ rs. v. Texas Med. Ass’n , 375 S.W .3d 464, 482 n.24 (Tex. A pp.—Austin 2012, pet. denied) (noting that judge ’s letter to the parties explaining his rea soning did no t i m p ac t ap pellate revie w). We there fore imply “that the

5trial court made all finding s nece ssary to support its judgme nt.” See W orford v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990); see also BMC Software Belg., N.V. v. Marchand , 83 S.W .3d 789,
794 (Tex. 2002); Brazos River Auth. v. Gilliam , 429 S.W .2d 949, 951 (Tex. Civ. App.—For t Worth 1968, writ ref

’d n.r.e.) (noting that letter of trial court “helpf ul in g iving the trial court’s view of the

controve rsy ” but tha t a

ppellate court was “g overne d by well rec og nized r

ule” that, “in the absenc e of finding s of fac t and conclusions of law the appellate court will presume that all fac t issues having support in the evidenc e wer e found in support of the judgme nt”). We also must aff irm the judgme nt “if it can be upheld on any leg al theory that finds support in the evidenc e.” W orford , 801 S.W .2d at 109; see BMC Software , 83 S.W .3d at 794.

I mplied findin gs o f fa ct are not conclusive and may be challeng ed for leg al and fac tu al s ufficie ncy when the repor ter’s and cler

k’s records are included in the appellate record, as is the case here

. See BMC Software , 83 S.W .3d at 794 (citing , among other authority , Roberson v. Roberson , 768 S.W .2d 280, 281 (Tex. 1989)). We re v i ew t h e evidenc e supporting a trial court’s implied findi n gs fo r l eg al and fac tual sufficie ncy by the s ame standards applied to a jury verdic t. Roberson , 768 S.W .2d at 281; see City of Keller v. W ilson , 168 S.W .3d 802, 807, 810 (Tex. 2005) (leg al sufficie ncy standard of revie w); Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986) (fa ctual sufficie ncy

standard of

revie w).
Her e, the trial cour

t found all four de fenda

nts joint ly

and sever ally liable to Sondra for breac h of fiduciary duty , co n v ersion, theft, and civil conspirac y and awarde d Sondra damag es in the amount of $319,203.88. I f the evidenc e su p p o rt s the trial court’s implied finding s and the judgme nt on any one of Sondra’s theories of rec overy , we must aff irm the judgme nt. See W

orford ,

6801 S.W .2d at 109. We tur n then to revie w the evide nce a s to Sondra’s civil conspirac y theory of

rec overy beca use it is disposi tive. “‘Civil conspiracy i s a deriva tive action premised on an underly ing tort.’” Gary E. Patterson & Assocs., P.C. v. Holub , 264 S.W .3d 180, 204 (Tex. App.—Houston [1st Dist.] 2008, pet. d en ied) (quoting Gonzales v. American Titl e Co. , 104 S.W .3d 588, 594 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) ). The e lements of civil conspira cy are : (1) two or more persons; (2) an object to be acc omplished; (3) a meeting of the minds on the objec t or course of action; (4) one or more unlawful, overt acts; and (5) da mag es as a

proxi mate re sult.

Chon Tri v. J.T.T. , 162 S.W .3d 552, 556 (Tex. 2005) (citation omitted).

“[P] roof of a conspirac y must usually be made by circ umstantial evidenc e.” Paschal

v. Great W

. Drilling, Ltd. , 215 S.W .3d 437, 453 (Tex. App.—Eastland 2 0 0 6 , pet. denied) (citing Schlumberge r W

ell Survey ing Corp. v. Nortex Oil & Gas Corp ., 435 S.W .2d 854, 858 (Tex. 1968)).
“I nfer ence s of conce rted action may be draw n from joint participa tion in the transac tions and from enjoy ment of the fruits o f the transac tions.” Id

. (citing International Banke rs Life Ins. Co.

v. Holloway , 368 S.W .2d 567, 582 (Tex. 1963)); see also Lesikar v. Rappeport , 33 S.W .3d 282, 302 (Tex. A pp.—Texarkana 2000, pet. denied)

. As to the element of an unlawful, overt act, a cause of action for conspirac y may be based on a brea ch of fiduciar y duty

. See Lesikar , 33 S.W .3d at 302 (“Ty pes o f torts or unlawful acts on which a cause of action for conspirac y may be based include brea ch of a fi d u ci ary duty .”). To preva il on a claim for brea ch of fiduciar y duty , a plaintiff must
prove the exis tence of the fiducia ry re l at ionship and a brea ch of that duty by the defe ndant that

7cause d damag es to the plaintiff. Bec k v. Law Offices of Edwin J. Terry, Jr., P.C. , 284 S.W .3d 416,

429 (Tex. App.—Austin 2009, no pet.).

The Holts arg ue that there was n o ev i d ence that they had a fiduciar y duty or had a meeting of the minds to conspire with a ny one and that Randall’s rec eipt of some of Helen’ s assets

was at most an “innoce nt” taking

. They contend that the assets that t h ey received wer e
non-testamenta

ry assets and that they had a g ood faith belief that they proper ly rec eived assets from Helen beca

u s e t hey did not know that Sondra’s inheritanc e rig hts had not been sever ed until the attorney ad litem unseale d the adoption paper s during the pendenc y of this suit. Sondra’s conspirac y theory of rec overy ag ainst the Holts, howeve r, is not depende nt on fi ndings that the Holts had a fiduciar y duty to Helen or

that the funds that they

rec eived we re f

rom Hele n’s estate

. “Onc e a conspirac y is proven, eac h conspirator is responsible for all acts done by any of t he conspirators i n furtheranc e of the conspiracy .” Paschal , 215 S.W .3d at 451 (citing Carroll

v. Timmers Chevrolet, Inc ., 592 S.W .2d 922, 926 (Tex. 1979)). Her e the evidenc e established that Peg g y had a fiduciar

y duty to Helen a s Helen’ s ag ent and a ttorney in f act pursuant to the power of attorney

. See Texas Bank & Trust Co. v. Moore , 595 S.W .2d 502, 507, 510 (Tex. 1980) (per son with fiduciar y duty may not use position to self-de al); Plummer v. Estate of Plummer , 51 S.W .3d 840, 842 (Tex. App.—Texarkana 2001, pet. denied) (“A power of attorney cre ates an ag ency rela tionship, and

an age n t owes a fiduciar y duty to its principal with respe ct to matters within the scope o f its ag ency .”). Evidence prese nted at trial also supported a finding that Peg g y brea ched her fiduciar y duty to Helen in further ance of the defe ndants’ conspirac y to transfe r Helen’ s assets to the cousins.

8Using the power of attorne y during the t ime period that Helen la cked c apac ity to manag e her

own aff airs, Peg g y chang ed the char acte r of some of He l en ’s as s ets so that they would not be part of Helen’ s estate upon Helen’ s death. Fo r ex ample, she used Helen’s m oney to purcha se an annuity
pay able to the cousins upon Helen’ s death. She also chang ed chec king and saving s acc ounts to add the cousins’ names and to make them pay able on death acc ounts. S h e further used the power of attorney afte r it ha d expired to tr ansfe r additional assets to the cousins. This e vidence supported a finding that Peg g y brea ched her fiduciar y duty to Helen by transfe rring Helen’ s assets—asse ts that would have otherwise been estate assets—to the cousins during Helen’ s life and afte r Helen’ s death and that her brea ch cause d damag e to Helen and Sondra, as the administrator of Helen’ s estate. See
Bec k , 284 S.W .3d at 429.

Fur ther, there was evidenc e that supported a fi nding that Randall and J udy had a “mee ting of the minds” with Peg g y and Eug ene in these transac tions. See Chon Tri , 162 S.W .3d at 556–57. The evidenc e established that the Holts wer e awa re of Sondra prior to Donna’ s death, the

terms of the wills of Donna and Helen, and the expi ration of the power of attorney at the time of Helen’ s death. Despite this knowledg e, J udy sent the power of attorney to Peg g y afte r Donna died with sug g estions as to how to transfe r assets and cashe d sever al chec ks pay able to Helen shortly afte r Donna died. Randall acc epted pay ments from Helen’ s acc ounts and the pay ment from the annuity afte r Helen died, and the c ousins filed an applica tion for letters of independe nt a dminist ration and deter mination of heirship in 2 0 0 5 , cl ai m i n g that the cousins wer e the “owne rs” of all of Helen’ s
estate without disclosing Sondra. See Paschal , 215 S.W .3d at 453 (infer ence s of conspirac y “may be draw n from joint particip at ion in the transac tions and from enjoy ment of the fruits of the

9transa ct i o n s ”)

. This evidenc e supports a finding that the Holts had a meeting of the minds with

Peg g y and Eug ene to divide Helen’ s assets betwee n the cousins and to deprive Sondra of her rig htful inheritanc e. See id.

Although the Holts prese nted evidenc e to support t h eir position that they did not conspire with Pegg y

and Eug ene, it wa s within the province of the trial court, as the fac t f inder, to resolve the conflicts in the evidenc e. See City of Keller , 168 S.W .2d at 819–20; Golden Eagle Archery , In c. v. Jack

son , 116 S.W .3d 757, 761 (Tex. 2003) (fa ct finder rema ins sole judge of witnesses’ cre dibilit y and we i gh t t o b e g iven their testimony ). Ba sed upon our revie w of the evidenc e, we conclude that the evide n ce was leg ally and fac tually sufficie nt to support the trial
court’s finding that the defe ndants, including the Holts, wer e liable to Sondra for civil conspirac y . See BMC Software , 83 S.W .3d at 794; Cain , 709 S.W .2d at 176.

As to the amount of dama g es awa rded by the trial court, the Holts do not c halleng e
t he sufficie ncy of the evidenc e to support the damag es awa rded to Sondra under her conspiracy theory of rec overy . To the extent that they arg ue that they should only be liable for amounts, if any , that they rec eived from Helen, “co- conspirator s are eac h responsible for the damag e the conspirac y

cause d.” Chu v. Hong , 249 S.W .3d 441, 445–46 (Tex. 2008) (citing State v. Standard Oil Co. , 107 S.W .2d 550, 559 (Tex. 1937)). The Holts then are liable for all o f t h e damag es that the conspirac y

cause d. See id

. We overr ule the Holts’ issues to the extent that they challeng e the trial court’s finding that they wer e liable to Sondra for civil conspira cy . Beca use the evidenc e supports aff irming the judgme nt based upon civil conspirac y , we do not addre ss the Holts’ issues addre ssing Sondra’s other

10theori es o f re cover y . See Tex. R. App. P. 47.1; BMC Software , 83 S.W .3d at 794 (upholding judgme nt if it can be sustaine d on any leg al theory

supported by

the evidenc e).

Expert Testim ony

I n thei r s econd issue, the Holts challeng e the admission of Sondra’s brother’ s testimony as an expert. They contend that he was unqualified and that his testimony was unreliable and not re levant. See Tex. R. Evid. 702; Cooper Tire & Rubber Co. v. Me ndez , 204 S.W .3d 797, 800 (Tex. 2006). 4

We revie w the trial court’s admission of expert testimony for abuse of discretion. See
Larson v. Downing , 197 S.W .3d 303, 304–05 (Tex

. 2 0 0 6 ); Helena Chem. Co. v. W ilkins , 47 S.W .3d 486, 499 (Tex. 2001)

. “‘The test for abuse of discretion is whether the trial court acte d without ref

ere nce to any g uiding rules or principles.’” Broders v. Heise , 924 S.W .2d 148, 151 (Tex. 1996) (quoting E. I. d

u P o n t d e Nemours & Co. v. Robinson , 923 S.W .2d 549, 558 (Tex. 1995)).
“More over, we will not reve rs e a t ri al court for an err oneous evidentiar y ruling unless the err or probably cause d the rendition of an improper judgme nt.” Owens-Corning F i b er g las Corp.

v. Malone , 972 S.W .2d 35, 43 (Tex. 1998) (citing Tex. R. App. P. 44.1; Gee v. Liberty Mut. Fire Ins. Co. , 765 S.W .2d 394, 396 (Tex. 1989)).

“Expert testimony

is admissibl e if (1) the ex pert is qualified, and (2) the testimony is rele vant and based on a reliable foundation.” Mend ez , 204 S.W .3d at 800 (citing W ilkins ,

To the extent that the Holts arg ue that the trial court err ed by considering Sondra’s 4 brother’ s testimony beca

use Sondra failed to follow the Texas Rules of Civil Procedur e conce rning the desig nation of experts and the disclosure of expert repor ts, the Holts did not make this arg ument to the trial court a

nd, there fore , have w aived it. See Tex. R. App. P . 33.1. 1147 S.W .3d at 499; Robinson , 923 S.W .2d at 556). An expert’s opinions must be supported by fac ts

in the rec ord. See Marathon Corp. v. Pitzner , 106 S.W .3d 724, 729 (Tex. 2003) (per curia m). The Supreme Court in Mende

z listed the Robinson fac tors that trial courts may consider in deter mining wh et h er expert testimony is reliable but made clea r that “these fac tors are non-exclusive and t h at Rule 702 contemplates a flexibl e inquiry .” 204 S.W .3d at 801 (citing Robinson , 923 S.W .2d at 557).

The Holts urg e that Sondra failed to show that her brother had est ate acc ounting experience and, there fore , that he was not qualified to testify , analog izi ng acc ountants with medical doctors who are not automatically qualified by their medical deg ree s to testify as an expert on ever y medical question. See Broders , 924 S.W .2d at 152. I n Broders , the Texas Supreme Court stated that “the notion that ever

y licensed medical doctor should be automatically qualifi ed to testify as an expert on ever

y medical que stion” “would ig nore the modern rea lities of medical spec ialization.” Id

. Although the testimony of an acc ountant who s p ec i al ized in probate matters mi g ht have been

ent i t led to more weig ht, the defe ndants themselves testified to amounts that they rec eived, and documents showing the transfe rs of assets from Helen to the cousins wer e admitted for the court’s revie w. Fur

ther, S ondra’ s brother testified t h at h e was an accountant, and his testimony included detailing his educa

tion and work experience

. I n t h i s co n text , we cannot conclude that Sondra’s brother w as not qualified. See M endez , 204 S.W .3d at 800–01.
As to the rele vancy and reliability of her brother’ s testimony , he testified conce rning

a primary dispute in the case —the amount of Helen’ s assets th at P eggy transfe rre d to the defe ndants—and his analy sis was based upon the sworn account ings and documents which wer e ad m i t t ed as exhibi ts at the trial. See Tex. R. Evid. 401, 402, 702; Pitzner , 106 S.W

. 3 d at 7 2 9

12(opinion must be supported by fac ts i n record). The Holts did not provide expert testimony to

contra dict his conclusions or di s p u t e t h e acc urac y of the underly ing documents. As to the Holts’ alleg ation of bias, it was for the trial court to judge the weig ht to be g iven his testimony

. See Jack son , 116 S.W .3d at 761.

On this rec ord, we cannot conclude that the trial court abused its di s cr etion by admitting Sondra’s brother’ s testimony conce rning the sworn acc ountings. See Larson , 197 S.W .3d

at 304–05. Fur

ther, g iven that the amounts of funds transfe rre d to the cousins wer e either admitted or docume nted, we a lso conclude tha t, even if the trial court abused its discr etion by admitting his

t es t i m o n y , the err or did not probably cause the rendition of an improper judgme nt. See Malone , 5
972 S.W .2d at 43. We overr ule the Holts’ sec ond issue.

CONCLUSION
For these re asons, we a ffirm the tria l court’s fina l judgment.

The evidenc e conclusively showed that the three family units eac h rec eived over $72,000 5 upon Helen’ s death from the annuity policy purcha sed by Peg g y with the power of attorney , as well as rec eiving pay

ments afte r Helen’ s death. For example, acco rd i n g to Randall’s acc ounting, he rec ei ved approximately $10,000 in Aug ust 2001 and another $20,000 in November 2002 from Helen’ s chec king and saving s acc ounts that Peg g y chang ed to pay able on death acc ounts. There also was evidenc e that funds from Helen’ s bank acc ounts w ere used to pay the cousins’ a ttorney ’s fe es and that pay

ments from Helen’ s acc ounts w ere made during Helen’ s life to the cousins and J udy

. 13__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Pury ear , Henson, a nd Goodwin J ustice He nson Not Participating Affir med Filed: F ebrua

ry 26, 2014

14