## NO. 12

- 1 2

- 00 374

- C V

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE ESTATE OF § APPEAL FROM THE

RUBY RENEE BYROM, § COUNTY COURT

DECEASED § CHEROKEE COUNTY, TEXAS

MEMORANDUM OP

INION Jerry Byrom appeals from the county court’s order for the sale of real property and appointment of a receiver. In one issue, he contends the county court erred in imposing a constructive trust on his homestead property and ordering its sale to pay guardian’s fees, accounting fees, attorney’s fees
, and the interest thereon. We affirm.

B ACKGROUND 1 Jerry Byrom was appointed executor of the estate of his mother, Ruby Renee Byrom. In June 2005, Roy Anderson, the temporary guardian of Mrs. Byrom’s est ate prior to her death,
filed a $31,992.75 claim against her probate estate for temporary guardian’s fees and attorney’s
fees . Byrom rejected the claim. Byrom also filed an inventory and appraisement of Mrs. Byrom’s estate. Anderson objected to the inve ntory claiming that Byrom had omitted assets that existed at Mrs. Byrom’s death. On July 1, 2008, the county court removed Byrom as executor citing gross mismanagement, misappropriation of funds
, and gross misconduct. On August 10, 2009, the county court granted the joint request of Anderson and Duane Coker 2 to impose a constructive

trust on Byrom’s home constructed with estate funds. The court ordered Byrom to pay

1 For a somewhat m ore extended recital of the procedural history of this case, see In re Estate of Byrom
, No. 12

- 09

- 00279

- CV, 2011 WL 590588 (Tex. App.

– Tyler Feb. 16, 2011, pet. denied) (mem. op.).

2 Coker was the attorney ad litem for Mrs. Byrom in the guardianship proc eeding.2

$200,000.00 into the court’s registry within thirty days. If Byrom failed to comply with the court’s order, his home was to be sold to satisfy the estate’s debts. Byrom appealed the order to this court asserting, inter alia , that he had no legal notice of the hearing that resulted in the order impressing a constructive trust on his homestead. See In re Estate of Byrom
, No. 12

- 09

- 00279

- CV, 2011 WL 590588 , at *5 (Tex. App.

– Tyler Feb. 16, 2011, pet. denied) (mem. op.). Byrom also maintained that the county court exceeded its authority in imposing a constructive trust on his homestead and condit ionally ordering its sale.
See id

. at *6. In all respects pertinent to this appeal , the judgment was affirmed. On September 4, 2012, the county court ordered the sale of part of Byrom’s property , and Byrom appealed.

T HE C OUNTY C OURT ’ S O RDER In hi s sole issue, Byrom contends the county court erred in imposing a constructive trust on his homestead property and ordering its sale to pay guardian’s fees, accounting fees, attorney’s fees, and the interest thereon. Anderson argues that Byrom’s complaint s are barred by res judicata. We agree. Applicable Law The homestead of a family or of a single adult person is exempt from forced sale for the payment of all debts except for those classes of indebtedness enumerated in Article 16, Section 50(a) of the T exas Constitution. However, “[i]t has long been decided that [ the ] homestead and exemption laws of this State were never intended to be, and cannot be, the haven of wrongfully obtained money or properties.” Baucom v. Texam Oil Corp

. , 423 S.W.2d 434, 442 (Tex. Civ. App

– El Paso 196 7 , writ ref’d n.r.e.). “[T]he homestead protection afforded by the Texas Constitution was never intended to protect stolen funds. Bransom v. Standard Hardware , 87 4 S.W.2d 919, 928 (Tex. App.

– F ort Worth 1994, writ denied). Res j udicata bars assertion of a claim in a later case when (1) there is a prior final determination on the merits in a court of competent jurisdiction, (2) the parties in the second action are the same or in privity with those in the first action, and (3) the second action is based
on the same claims as were raised or could have been raised in the first action. Travelers Ins.
Co. v. Joachi

m , 315 S.W.3d 860, 862 (Tex. 2010). Res judicata precludes the relitigation of claims that were finally adjudicated “as we ll as related matters that, with the use of diligence,3

should have been litigated in the prior suit.” Barr v. Resolution Trust Corp
., 837 S.W.2d 627, 628 (Tex. 1991). Texas follows the transactional approach to res judicata barring claims arising
out of the transaction or occurrence that is the subject matter of the first suit. State & Cnty

. Mut

. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001).
Discussion Byrom contends that the trial co urt e rred in imposing a constructive trust on property he

c laims as homestead and in ordering the sale of that property. Byrom raised these same issues in the prior proceeding between the same parties and arising out of the same facts. This court ruled adversely to Appellant on both claims. See In re Estate of Byrom , 2011 WL 590588, at *7. Therefore, the doctrine of res judicata bars the relitigation of Byrom’s claims. Moreover, t he record indicates that sometime during the course of the litigation, Byrom admitted that, while executor, he paid for the constr uction of the home on the subject property with money from his mother’s estate. Byrom was removed as executor for misappropriation of funds and gross misconduct. Now, apparently, the estate has no money to pay the claims against
the estate. Byrom wrongf ully used the estate’s money to construct the home he now claims as homestead. The homestead law does not protect property or funds obtained with money misappropriated by a fiduciary. See Baucom , 423 S.W .2d at 442; Bransom , 874 S.W.2d at 92 8

. Appellant’ s sole issue is overruled.

D ISPOSITION The judgment of the trial court is affirmed

.



### B ILL 

### B ASS Justice

Opinion delivered July 31 , 2013. Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitti ng by assignment.

(PUBLISH)4 

## COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 31 , 2013

NO. 12

- 12

- 00374

- CV

IN THE ESTATE OF RUBY RENEE BYROM, DECEASED

Appeal from the County Court
of Cherokee County, Te xas. (Tr.Ct.No. 10745 )

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of t his court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all things affirmed , and that all costs of this appeal are hereby adjudged
against the appellant, JERRY BYROM
, for w hich execution may issue, and that this decision

be certified to the court below for observance.

Bill Bass , Justice. Panel consisted of Worthen, C.J., Hoyle, J. , and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.