In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-22-00492-CV

___________________________

On Appeal from the 271st District Court

Wise County, Texas

Trial Court No. CV12-04-254

Before Sudderth, C.J.; Kerr and Birdwell, JJ.

Memorandum Opinion by Justice Birdwell

GARY BRUCE PEEK, Appellant

V. 

LINDA MAYFIELD, Appellee
2

MEMORANDUM OPINION

Appellant Gary Bruce Peek (Bruce) appeals an interim judgment in this trust 

dispute. This is the second interlocutory appeal of the trial court’s receiver appointment

and the third appeal overall in this case. In two issues, Bruce contends that the trial 

court lacked subject-matter jurisdiction to appoint a receiver over the family trust and 

that the evidence is insufficient to support that appointment. We affirm the trial court’s 

interim judgment.1

I. Background

The first appeal in this case was taken from the trial court’s judgment after a 

bench trial. Mayfield v. Peek (Peek I), 546 S.W.3d 253, 257–58 (Tex. App.—El Paso 2017, 

no pet).

2 The El Paso Court of Appeals categorized the claims at issue as the 

Guardianship Claim, the Will Claim, and the Trust Claim. Id. at 256–57. The 

Guardianship Claim concerned the guardianship of Russell Peek. Id. at 257. The Will 

Claim concerned the probate of Dorothy Peek’s will. Id. Russell and Dorothy are Bruce 

and appellee Linda Mayfield’s parents. Id. at 256. The El Paso Court of Appeals reversed 

the trial court’s judgment on the Will Claim and the Guardianship Claim and remanded 

1

The appellee raises what appears to be a counter-issue asserting that the trial 

court properly ordered interim relief. We need not address this counter-issue because 

we overrule appellant’s issues and affirm the trial court’s interim judgment. See Tex. R. 

App. P. 47.1.

2

Originally appealed to this court, Peek I was transferred to the El Paso Court of 

Appeals by the Texas Supreme Court pursuant to its docket equalization efforts. See

Tex. Gov’t Code Ann. § 73.001.
3

those claims to be dismissed for want of jurisdiction because the county court at law 

had exclusive jurisdiction over the claims from its prior guardianship and probate 

proceedings. Id. at 264, 267.

The Trust Claim concerned Bruce’s alleged fiduciary-duty violations as trustee 

of the Peek Family Revocable Living Trust (2000) (the Peek Trust), which was 

established by Russell and Dorothy. Id. at 256–57. The El Paso Court of Appeals also 

reversed the trial court’s judgment on the Trust Claim and remanded the claim for a 

new trial, finding that the trial court had abused its discretion in refusing to hear the 

claim. Id. at 266.

After remand, the trial court held a bench trial on the Trust Claim and found that 

Bruce had breached fiduciary duties as the Peek Trust’s trustee and unduly influenced 

Dorothy to transfer certain assets from the trust. The trial court issued an “Interim 

Judgment” appointing a receiver over the trust and ordering remedies for the breaches.

Bruce filed an interlocutory appeal from the trial court’s interim judgment. Peek v. 

Mayfield (Peek II), No. 02-20-00107-CV, 2021 WL 3205061, at *3 (Tex. App.—Fort 

Worth July 29, 2021, no pet.) (mem. op.). Although the parties asserted numerous issues 

on appeal, we determined that the trial court’s interim judgment failed to require a bond 

for the receivership. Id. at *5. Thus, we reversed the interim judgment’s receiver 

appointment and remanded the case. Id.3

3

See Peek II, 2021 WL 3205061, at *1–3, for a full procedural and factual history.
4

After the second remand, Linda died, and her daughter Lainie Latshaw filed a 

suggestion of death notifying the trial court that she would prosecute the claims as the 

executor of Linda’s estate under Texas Rule of Civil Procedure 151. See Tex. R. Civ. P. 

151 (permitting an executor to be substituted for decedent and pursue claims brought 

by plaintiff before she died).4 She also filed a motion to re-appoint a receiver with a 

bond.

Bruce filed a motion to dismiss or, alternatively, to abate. According to Bruce’s 

motion, the trial court lacked subject-matter jurisdiction because Linda’s claims were 

related to the county court at law’s probate of Dorothy’s will, giving that court dominant 

jurisdiction. Bruce also filed an opposition to Linda’s motion to re-appoint a receiver, 

reasserting his dominant-jurisdiction argument and arguing, among other things, that 

the trial court’s interim judgment had been reversed in its entirety by our mandate in 

Peek II, that the evidence was legally and factually insufficient to support a receiver 

appointment, and that Linda’s claims were barred by res judicata or collateral estoppel.

Bruce also filed a supplemental answer, asserting additional affirmative defenses and 

specifically denying the trial court’s jurisdiction because of the county court at law’s 

dominant jurisdiction. The trial court denied Bruce’s motion to dismiss or abate and 

issued an order appointing a receiver over the Peek Trust and requiring a $50,000 bond.

This appeal followed.

4

We will continue to refer to appellee as Linda for continuity with the parties’ 

briefing and our prior opinion in this case.
5

II. Discussion

Bruce asserts two issues on appeal. In his first issue, Bruce contends that the trial 

court lacked subject-matter jurisdiction over the Trust Claim because the county court 

at law has exclusive jurisdiction over all claims “challenging [the] distribution of estate 

assets” and the Trust Claim seeks to do just that. In his second issue, Bruce contends 

that the evidence is legally and factually insufficient to support the receiver’s 

appointment. We address each issue in turn.

A. Subject-Matter Jurisdiction

In the prior appeals, Bruce argued that the trial court was barred from hearing 

Linda’s Trust Claim because the county court at law had dominant jurisdiction. See Peek 

I, 546 S.W.3d at 255; Peek II, 2021 WL 3205061, at *3. Bruce also raised dominant 

jurisdiction in the trial court after both the first and the second remands. See Peek II, 

2021 WL 3205061, at *2; supra Section I. Both times, he asserted that the county court 

at law’s dominant jurisdiction deprived the trial court of subject-matter jurisdiction over 

the Trust Claim. See Peek II, 2021 WL 3205061, at *2; supra Section I. As we explained 

in Peek II, however, dominant jurisdiction does not implicate a court’s subject-matter 

jurisdiction but is more of a venue issue that cannot be raised by interlocutory appeal

from a receiver’s appointment. Peek II, 2021 WL 3205061, at *3–4 & n.2. Bruce now 

contends that the trial court lacked subject-matter jurisdiction because the county court 

at law had exclusive jurisdiction over the Trust Claim.
6

1. Applicable Law and Standard of Review

Subject-matter jurisdiction is essential to the authority of a court to decide a case.

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). It “cannot be 

waived or conferred by agreement and can be raised at any time, including in an 

interlocutory appeal.” Bookout v. Shelley, No. 02-22-00055-CV, 2022 WL 17173526, at *3 

(Tex. App.—Fort Worth Nov. 23, 2022, no pet.) (mem. op.) (internal quotation marks 

omitted) (quoting Anderson v. Truelove, 446 S.W.3d 87, 91 (Tex. App.—Houston [1st 

Dist.] 2014, no pet.)). Whether a trial court has subject-matter jurisdiction and whether 

a plaintiff has alleged facts that affirmatively demonstrate a trial court’s subject-matter 

jurisdiction are questions of law that we review de novo. City of Westworth Vill. v. City of 

White Settlement, 558 S.W.3d 232, 239 (Tex. App.—Fort Worth 2018, pet. denied) (citing 

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).

2. Analysis

The El Paso Court of Appeals held in Peek I that the trial court had subjectmatter jurisdiction over the Trust Claim. Peek I, 546 S.W.3d at 265. The court 

specifically held, “As to the Trust Claim, the Property Code authorized the 271st 

District Court to hear the issues raised.” Id. Noting the county court at law’s concurrent 

jurisdiction over certain trust disputes, the court further concluded that “the issue is not 

one of exclusive jurisdiction, but rather dominant jurisdiction.” Id.

Bruce essentially contends that the El Paso Court of Appeals got it wrong. 

According to Bruce, the Trust Claim seeks not only to void transactions by which 
7

Dorothy transferred certain assets from the Peek Trust several months before her 

death, but it also seeks to reverse asset distributions under Dorothy’s will. Thus, Bruce 

contends that the Trust Claim is in reality a will contest over which the county court at 

law has exclusive jurisdiction. We disagree.

Subject to limited exceptions, “a district court has original and exclusive 

jurisdiction over all proceedings against a trustee and all proceedings concerning a 

trust.” Id. (citing Tex. Prop. Code Ann. § 115.001(a)). These exceptions include 

determining facts affecting the administration, distribution, or duration of a trust;

relieving a trustee of duties; and requiring an accounting. Id. (citing Tex. Prop. Code 

Ann. § 115.001(a)(6), (7), (8), and (9)). When such matters are related to a prior probate 

proceeding in a county court at law, both courts have concurrent jurisdiction over the 

matter. Id.

As noted by the court in Peek I, Linda’s Trust Claim alleged that Bruce had 

breached his duties as the Peek Trust’s trustee and (1) sought an accounting, 

(2) complained of Bruce’s administration of trust assets, and (3) sought his removal as 

trustee of the PK Revocable Living Trust, which had been set up by Bruce and received 

assets improperly transferred from the Peek Trust. Id. Thus, the court concluded that 

“the Trust Claim could have been heard by the 271st District Court, or one of the 

county courts at law for Wise County if they were exercising original probate 

jurisdiction.” Id. The record does not reflect that Linda amended her pleadings after the 
8

El Paso Court of Appeals remanded the case.

5 Thus, her pleading at issue in Peek I is 

still her live pleading.

Bruce contends that we must disregard the substance of Linda’s pleading and 

consider the “end result” to determine whether the trial court had subject-matter 

jurisdiction over the Trust Claim. According to Bruce, “[t]he ‘end’ guides this analysis, 

not the ‘means,’” and the “end” is “the setting aside of Dorothy’s will and the [county 

court at law’s] distribution of estate assets.” Thus, he argues the county court at law has 

exclusive jurisdiction over the Trust Claim. He cites Stodder v. Evans, 860 S.W.2d 651, 

652 (Tex. App.—Waco 1993, writ denied) (op. on reh’g), as instructive to our analysis.

Stodder concerned an heir’s attempt to contest a will outside of probate. Id. at 652. 

Jody Stodder alleged that she was the sole heir of Richard Stodder, who had been 

declared mentally incompetent before executing a will that was subsequently admitted 

to probate in county court. Id. Jody alleged that Randall Evans, who was Richard’s 

guardian and the independent executor of Richard’s will, knew that Richard lacked 

testamentary capacity to execute the will. Id. Jody asserted numerous claims against 

Evans and sought “an accounting[ ]and imposition of a constructive trust and equitable 

5

Linda was originally a defendant in this case, which was brought by Dorothy in 

2012. Linda answered and filed a counterclaim alleging that Bruce had breached his 

fiduciary duties as the Peek Trust’s trustee by unduly influencing Russell and Dorothy 

“to amend the trust, and ultimately to terminate the trust, to remove all other 

beneficiaries except for himself and to transfer all of the trust property, ultimately, to 

the PK Revocable Living Trust, a self-made trust by Gary Bruce Peek and his counsel.”

After the first remand, the parties were realigned, and Linda was named a plaintiff.
9

lien on the estate’s assets,” but she did not expressly request that the will be set aside 

for fraud or lack of testamentary capacity. Id. Although Jody mailed her petition to the 

county clerk, it “was somehow filed in the district court instead.” Id.

On appeal from the trial court’s summary judgment dismissing Jody’s claims, the 

appellate court had to determine whether Jody’s suit asserted a will contest. Id. at 652–

53. The court observed that if Jody’s pleading could be construed as a will contest, the 

district court lacked subject-matter jurisdiction. Id. The court noted that Jody had

explicitly alleged lack of testamentary capacity and Evans’s fraud, deception, and 

misrepresentation in probating the will. Id. at 653. The court also noted Jody’s failed 

attempt to file her petition with the court that presided over the probate proceeding. Id.

Although Jody had not expressly sought to set aside the will, the court concluded 

that it could “supply the missing averment by inference because it is clearly implied by 

what is alleged.” Id. (citing Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982)). Specifically, 

the court found that 

[c]onstruing the pleading as including a will contest harmonizes with the 

specific allegation that heirs at law are determined at the time a will is set 

aside, with requests for a constructive trust and equitable lien on the 

estate’s assets, and with the prayer that the court order Evans to convey 

the estate’s assets to Jody as [Richard’s] sole heir at law.

Id. The court further noted that “[a] constructive trust on and conveyance of specific 

assets would be possible and necessary only if [Jody] were entitled to possession, and 

she would have no right of possession unless the will were first set aside through a will 

contest.” Id. Thus, the court concluded that the suit included a will contest. Id.
10

We disagree with Bruce’s contention that Stodder supports an “ends-based” 

analysis. Although the Stodder court mentioned that the appellees had asserted in their 

summary-judgment motion that Jody’s “request for possession of the estate’s assets is 

equivalent to requesting that the will be set aside,” id., this did not control the court’s 

decision. Rather, the court’s analysis focused on what was “clearly implied by what [was]

alleged.” Id. The court pointed to the appellee’s assertion as consistent with its own 

conclusion that Jody could seek the requested relief only if she were an heir and the will 

were set aside. Id. Here, Linda’s Trust Claim was not dependent on such an outcome.

Moreover, all of the claims in Stodder concerned Evans’s allegedly tortious acts in 

probating Richard’s will or as the estate representative. Id. at 652. There was no trust or 

prior testamentary instrument. Id. In contrast, Linda’s Trust Claim focused solely on 

Bruce’s alleged actions related to the Peek Trust and did not concern his probating 

Dorothy’s will or acting as her estate representative.6

Linda’s Trust Claim alleged that the Peek Trust “was amended to remove [Linda]

as a beneficiary, [and] the assets of the trust transferred to Dorothy Peek.” She also 

asserted that Bruce had “violated his duties to the beneficiaries as trustee of [the Peek 

Trust].” She expressly sought an accounting of all assets taken from the Peek Trust, 

6

Linda’s Will Claim is more akin to the Stodder claim. Specifically, Linda alleged 

that Bruce and his counsel “made a new will for [Dorothy] that expressly disinherited 

[Linda],” “took all actions necessary, using undue influence over Dorothy Peek . . . to 

take for themselves the substantial and very valuable estate,” and engaged in a joint 

enterprise to use “undue influence over Dorothy Peek to change her will to disinherit 

Linda.”
11

recovery of “all financial gain received by [Bruce] from the [Peek] Trust while he was 

Trustee,” and “restor[ation of] all property removed from the [Peek] Trust.” Her Trust 

Claim contained no heirship allegations, unlike the Stodder allegations.

Bruce also cites In re Hannah, 431 S.W.3d 801, 808 (Tex. App.—Houston [14th 

Dist.] 2014, orig. proceeding) (per curiam), to support his “ends-based” proposition.

Yet Hannah contradicts his position. The relator in Hannah sued in district court for 

tortious interference with an inheritance, slander, and conspiracy alleging that 

defendants had interfered with the decedent’s bequest to relator. Id. at 804–05. The 

relator did not contest the probate of the will, but she alleged that prior wills had 

bequeathed significant assets to her. Id. at 804. On petition for writ of mandamus from 

the trial court’s transfer of the case to the county court at law, the appellate court 

concluded that relator’s claims did not qualify as a probate proceeding because they did 

not contest property distribution under a probated will but, rather, alleged slander and 

tortious interference with decedent’s prior wills. Id. at 808. The court concluded,

“Although the gravamen of relator’s suit is that relator was disinherited as a result of 

the defendants’ alleged actions, that fact alone is insufficient to make her suit a probate 

proceeding.” Id.

Linda contends that she does not contest Dorothy’s will. She notes, and we agree,

that the trial court did not address the validity of Dorothy’s will. Indeed, the validity of 

a will is not dependent on the assets that would be distributed under that will. See In re 

Estate of Arrington, 365 S.W.3d 463, 466–67 (Tex. App.—Houston [1st Dist.] 2012, no 
12

pet.) (discussing requirements to admit a will to probate under version of Probate Code 

applicable to probate of Dorothy’s will). In other words, the validity of the will has no 

bearing on the relief sought in the Trust Claim. Like the claims in Hannah, Linda’s Trust 

Claim concerns only Bruce’s alleged interference with her beneficiary interest in the 

Peek Trust, and her allegation that she was disinherited because of his alleged actions is 

insufficient to make the Trust Claim a probate proceeding. See Hannah, 431 S.W.3d at 

808. Moreover, Bruce’s “ends-based” analysis would absurdly deprive district courts of 

jurisdiction to hear cases contesting title to property distributed under a will. See, e.g., 

Gordon v. Jones, 196 S.W.3d 376, 381–82 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

(holding district court had subject-matter jurisdiction over heir’s trespass-to-try-title 

action alleging fraud in probate of decedent’s will).7

In Peek I, the El Paso Court of Appeals found three distinct claims and concluded 

that the trial court had concurrent jurisdiction over the Trust Claim. Peek I, 546 S.W.3d 

at 256–57, 265 (citing Tex. Prop. Code Ann. § 115.001(a)). We cannot disturb this 

7

Bruce cites other cases to support his “ends-based” proposition. These cases are 

either inapplicable to the facts at issue or undercut his proposition. See Storm v. Storm, 

328 F.3d 941, 948 (7th Cir. 2003) (holding Supreme Court precedent barred federal 

district court from hearing pre-probate claim for tortious interference with inheritance 

expectancy), abrogated by Marshall v. Marshall, 547 U.S. 293, 311, 126 S. Ct. 1735, 1748

(2006) (concluding Storm court erroneously interpreted prior authority to withhold 

federal court jurisdiction over matter “well beyond probate of a will or administration 

of a decedent’s estate”); Narvaez v. Powell, 564 S.W.3d 49, 58 (Tex. App.—El Paso 2018, 

no pet.) (holding that claims for and arising from alleged improper payment of 

attorney’s fees from estate property were probate proceedings under Section 31.001 of 

the Texas Estates Code).
13

ruling, see Wohlfahrt v. Holloway, 172 S.W.3d 630, 637–38 (Tex. App.—Houston [14th 

Dist.] 2005, pets. denied) (reasoning that law-of-the-case doctrine applied to disputed 

holding from a different court of appeals when appellant provided “no argument 

regarding changed issues or facts”), and we overrule Bruce’s first issue.

B. The Receiver’s Appointment

In his second issue, Bruce contends the evidence is legally and factually 

insufficient to support the receiver’s appointment over the Peek Trust because

(1) Dorothy dissolved the Peek Trust and the trial court has not issued a new order to 

“resurrect” it;8 (2) res judicata bars the receiver’s appointment; and (3) the evidence is 

insufficient to prove that Bruce breached his fiduciary duties as trustee and unduly 

influenced Dorothy to transfer assets from the Peek Trust.

1. Standard of Review

In a trial to the court in which no findings of fact or conclusions of law are filed, 

such as here, the trial court’s judgment implies all findings of fact necessary to support 

it. Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). When a reporter’s 

record is filed, these implied findings are not conclusive, and an appellant may challenge 

them by raising issues challenging the legal and factual sufficiency of the evidence to 

support the judgment. Id. We apply the same standard when reviewing the sufficiency 

8

Bruce’s brief discusses this point separately from his two issues. He does not 

indicate how the point fits into his issues or request relief on this point. We interpret it 

as an additional ground for this second issue and will address it as such.
14

of the evidence to support implied findings that we use to review the evidentiary 

sufficiency of jury findings or a trial court’s express findings of fact. Id. We must affirm 

the judgment if we can uphold it on any legal theory supported by the record. Rosemond 

v. Al-Lahiq, 331 S.W.3d 764, 766–67 (Tex. 2011).

We may sustain a legal-sufficiency challenge—that is, a no-evidence challenge—

only when (1) the record bears no evidence of a vital fact, (2) the rules of law or of 

evidence bar the court from giving weight to the only evidence offered to prove a vital 

fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or 

(4) the evidence establishes conclusively the opposite of a vital fact. Gunn v. McCoy, 554 

S.W.3d 645, 658 (Tex. 2018). In determining whether legally sufficient evidence 

supports the challenged finding, we must consider evidence favorable to the finding if 

a reasonable factfinder could, and we must disregard contrary evidence unless a 

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 

(Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We indulge “every 

reasonable inference deducible from the evidence” in support of the challenged finding.

Gunn, 554 S.W.3d at 658 (quoting Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017)).

When reviewing an assertion that the evidence is factually insufficient to support 

a finding, we set aside the finding only if, after considering and weighing all the pertinent 

record evidence, we determine that the credible evidence supporting the finding is so 

weak, or so contrary to the overwhelming weight of all the evidence, that the finding

should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 
15

(Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 

395 S.W.2d 821, 823 (Tex. 1965).

2. Analysis

a. Dissolution of the Peek Trust

Bruce contends that Dorothy dissolved the Peek Trust before her death and that 

our judgment in Peek II vacated the trial court’s Interim Judgment that “resurrected” 

the Peek Trust. According to Bruce, Dorothy dissolved the trust by transferring its

assets, and it remains dissolved because the trial court did not reissue its order

resurrecting the trust by voiding Dorothy’s asset transfers.

The evidence of the asset transfers and the trust provisions implicated in this 

issue is undisputed. Thus, we review this issue de novo. See Reliance Nat’l Indem. Co. v. 

Advance’d Temporaries, Inc., 227 S.W.3d 46, 50 (Tex. 2007) (noting appellate courts review 

legal determinations de novo and concluding “[w]hat might otherwise be a question of 

fact becomes one of law when the fact is not in dispute or is conclusively established”). 

At trial, copies of three special warranty deeds were admitted as evidence of the 

transfers at issue. The deeds were executed by Dorothy and Bruce as trustees on April 

9, 2012, and conveyed three tracts of real property identified as all or part of “Block 

22” and “Block 40” of the “Smith County School Land Survey, Abstract No. 744” from 

the Peek Trust to Dorothy. Copies of the trust documents and amendments admitted 

into evidence reflected that the Peek Trust would terminate if all income and principal 

were paid out. Bruce testified that the April 9, 2012 deeds transferred all of the real 
16

property in the Peek Trust to Dorothy. Thus, he contends that Dorothy dissolved the 

trust in 2012.

Each deed, however, reserved “all oil, gas, and mineral rights.” An October 18, 

2010 Assignment of Oil, Gas and Mineral Lease admitted at trial reflects an assignment 

of Russell and Dorothy’s “rights, title, and interest in and to the Oil, Gas, and Mineral 

Lease[s]” on Blocks 22 and 40 to the Peek Trust. A December 31, 2018 Assignment of 

Oil, Gas and Mineral Lease also admitted at trial reflects an assignment of “rights, title, 

and interest in and to the Oil, Gas, and Mineral Lease[s]” on Blocks 22 and 40 from the 

Peek Trust to Bruce’s PK Trust. Thus, contrary to Bruce’s contention, as late as 

December 2018—six years after Dorothy’s death—assets remained in the Peek Trust.

The trust documents and amendments also reflect that the trust would become 

irrevocable “[u]pon the death of the first of [Russell or Dorothy] to die.” Dorothy 

predeceased Russell on November 20, 2012. Bruce testified that the Peek Trust became 

irrevocable on Dorothy’s death and that he was still the trustee at the time of trial in 

February 2020.

The record reflects that the April 2012 asset transfers did not dissolve the Peek 

Trust by transferring all trust assets. At least one asset remained in the trust until 

December 2018 and Bruce was still the trustee in 2020. Accordingly, the trial court’s 

Interim Judgment did not “resurrect” the Peek Trust, and we need not address Bruce’s 

contention that our Peek II judgment vacated that aspect of the trial court’s judgment.

See Tex. R. App. P. 47.1
17

b. Res Judicata

Bruce next contends that res judicata barred the trial court from considering 

undue-influence evidence because the same evidence was addressed by the county court 

at law when Dorothy’s will was admitted to probate.

Res judicata generally encompasses two categories of a prior judgment’s 

preclusive effects: (1) issue preclusion, or collateral estoppel, and (2) claim preclusion, 

or res judicata. Barr v. Resol. Tr. Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 

1992). Collateral estoppel precludes relitigating issues resolved in a prior suit, and res 

judicata precludes relitigating claims that were finally adjudicated or that arise out of the 

same subject matter and should have been litigated in a prior suit. Id.

According to Bruce, the county court at law’s order admitting Dorothy’s will to 

probate is a final judgment on the question of his undue influence over Dorothy. Undue 

influence, however, affects only one element of Linda’s breach-of-fiduciary-duty claim.

See Severs v. Mira Vista Homeowners Ass’n, Inc., 559 S.W.3d 684, 703 (Tex. App.—Fort 

Worth 2018, pet. denied) (outlining the three elements of a breach-of-fiduciary-duty 

claim). Thus, the question is whether this issue was addressed by the county court at 

law in the probate proceeding, not whether the order admitting the will to probate 

barred Linda’s breach-of-fiduciary-duty claim. See id.

Collateral estoppel bars an issue if: 

(1) the facts sought to be litigated in one action were fully and fairly 

litigated in a prior action; (2) those facts were essential to the judgment in 

the prior action; and (3) the parties were cast as adversaries in the prior 
18

action or the party against whom collateral estoppel is being asserted was 

a party to the prior litigation or is in privity with such a party.

Resurgence Partners, LLC v. Urbach, No. 02-21-00418-CV, 2023 WL 2033945, at *8 (Tex. 

App.—Fort Worth Feb. 16, 2023, no pet.) (mem. op.) (quoting Lavely v. Heafner, 976 

S.W.2d 896, 899 n.4 (Tex. App.—Houston [14th Dist.] 1998, no pet.)).

As previously discussed, the El Paso Court of Appeals found three separate 

claims at issue in this case: the Guardianship Claim, the Will Claim, and the Trust Claim, 

see Peek I, 546 S.W.3d at 256–57, and we cannot disturb that ruling, see Wohlfahrt, 172 

S.W.3d at 637–38. Only the Trust Claim remains at issue in this case, and Bruce has not 

directed us to any evidence showing that the facts alleged in the Trust Claim were either 

addressed in the prior probate proceeding or essential to admit Dorothy’s will to 

probate. See Resurgence Partners, 2023 WL 2033945, at *8.

Although Bruce contends that the undue-influence evidence was presented in 

the probate proceeding, he identifies only that the county court at law found that 

Dorothy had the requisite testamentary capacity to execute the will. He points to no 

ruling on undue influence. Indeed, the county court at law’s order admitting Dorothy’s 

will to probate states only that the will was properly executed, self-proved, and not 

revoked. See Arrington, 365 S.W.3d at 466–67.

Testamentary capacity and undue influence are two separate issues. See Rothermel 

v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963) (“Undue influence in the procurement of a 

testament is a ground for its avoidance separate and distinct from the ground of 
19

testamentary incapacity; for while testamentary incapacity implies the want of intelligent 

mental power, undue influence implies the existence of a testamentary capacity 

subjected to and controlled by a domina[n]t influence or power.”); see also Estate of Luce, 

No. 02-17-00097-CV, 2018 WL 5993577, at *11 (Tex. App.—Fort Worth Nov. 15, 

2018, no pet.) (mem. op.) (quoting Rothermel). Additionally, undue influence over 

Dorothy’s will could be raised only in a will contest, see Rothermel, 369 S.W.2d at 922 

(“The burden of proving undue influence is upon the party contesting [the testament’s]

execution.”), and the Trust Claim does not present a will contest, see Peek I, 546 S.W.3d

at 256–57.

Bruce notes in his appellate brief that Linda filed a will contest in the county 

court at law in 2014 but that she did not pursue it, “and the County Court at Law never 

acted upon it.” Copies of filings from the probate and guardianship proceedings that 

were admitted at trial include Linda’s will-contest petition, but they do not contain any 

ruling on the petition or any indication that the county court at law addressed it. Even 

if it had been addressed, it would have no preclusive effect on the Trust Claim, which 

is separate and distinct from the Will Claim. See id. Thus, neither res judicata nor 

collateral estoppel barred the trial court from hearing the Trust Claim.

c. Evidence

Bruce contends that the evidence presented at trial was not only legally and 

factually insufficient to show that he breached any fiduciary duty and unduly influenced 
20

Dorothy to transfer trust assets in April 2012 but also that “the evidence contravenes” 

any such finding. 

i. Applicable Law

Although Linda did not plead specific statutes in support of her allegation that 

Bruce breached his fiduciary duties as the Peek Trust’s trustee, she submits two statutes 

on appeal: Chapter 64 of the Texas Civil Practice and Remedies Code and Section 

114.008 of the Texas Property Code. Because it is dispositive, we address only the 

appointment of the receiver under the Texas Property Code. See Tex. R. App. P. 47.1.

“High fiduciary standards are imposed upon trustees, who must handle trust 

property solely for the beneficiaries’ benefit.” Moody Nat’l Bank v. Moody, No. 14-21-

00096-CV, 2022 WL 14205534, at *7 (Tex. App.—Houston [14th Dist.] Oct. 25, 2022, 

pet. denied) (mem. op.) (quoting Ditta v. Conte, 298 S.W.3d 187, 191 (Tex. 2009), and 

citing Tex. Prop. Code Ann. §§ 113.051–115.059). “A trustee owes an unwavering duty 

of good faith, fair dealing, loyalty, and fidelity to the trust’s beneficiaries when managing 

the affairs of a trust and its corpus.” Id. (first citing Tex. Prop. Code Ann. §§ 113.051–

.058; then citing Harrison v. Reiner, 607 S.W.3d 450, 462 (Tex. App.—Houston [14th 

Dist.] 2020, pet. denied); and then citing Ludlow v. DeBerry, 959 S.W.2d 265, 279 (Tex. 

App.—Houston [14th Dist.] 1997, no writ)). A trustee also has a duty to fully disclose 

all material facts known to the trustee that might affect the beneficiaries’ rights. Id. 

(citing Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (“The trustee’s duty of full 

disclosure extends to all material facts affecting the beneficiaries’ rights.”)); see also Tex. 
21

Prop. Code Ann. § 113.151(a) (requiring trustee to account to beneficiaries for all trust 

transactions). Subject to exceptions not applicable here, a trustee must also avoid selfdealing with trust assets. Tex. Prop. Code Ann. § 113.053(a).

A trustee commits a breach of trust when he breaches his statutory or common 

law fiduciary duties. Id. §§ 113.051, 114.001(b), (c); see also Brault v. Bigham, 493 S.W.2d 

576, 578–79 (Tex. App.—Waco 1973, writ ref’d n.r.e.) (“A trustee commits a breach of 

trust not only where he violates a duty in bad faith, or intentionally although in good 

faith, or negligently, but, also where he violates a duty because of a mistake.”).

To succeed on a breach-of-fiduciary-duty claim, a plaintiff must establish, 

“(1) a fiduciary relationship between the plaintiff and defendant, (2) a 

breach by the defendant of his fiduciary duty to the plaintiff, and (3) an 

injury to the plaintiff or benefit to the defendant as a result of the 

defendant’s breach.”

Severs, 559 S.W.3d at 703 (quoting Lindley v. McKnight, 349 S.W.3d 113, 124 (Tex. App.—

Fort Worth 2011, no pet.)).

To remedy a breach of trust, a trial court may appoint a receiver to take 

possession of trust property and administer the trust. Tex. Prop. Code Ann. 

§ 114.008(a)(5).9

The rules that guide an undue-influence determination “apply substantially alike 

to wills, deeds, and other instruments.” Wils v. Robinson, 934 S.W.2d 774, 780 (Tex.

9

Section 64.001(a) of the Texas Civil Practice and Remedies Code permits a trial 

court to appoint a receiver in certain circumstances inapplicable here or “in any other 

case in which a receiver may be appointed under the rules of equity.” Tex. Civ. Prac. & 

Rem. Code Ann. § 64.001(a).
22

App.—Houston [14th Dist.] 1996), writ granted, judgm’t vacated w.r.m., 938 S.W.2d 717 

(Tex. 1997); see also Rothermel, 369 S.W.2d at 922 (relying on, among other precedent, 

Curry v. Curry, 270 S.W.2d 208, 213 (Tex. 1954), for undue-influence analysis involving 

deed execution). To determine whether there has been undue influence, we consider 

(1) whether an influence existed and was exerted; (2) whether the influence operated to 

subvert or overpower the person’s mind when executing the document; and (3) whether 

the person would have executed the document but for the influence. Wils, 934 S.W.2d 

at 780. This is a fact-intensive inquiry, and courts generally consider the following 

factors:

• the circumstances surrounding execution of the instrument;

• the relationship between the grantor and the grantee;

• the motive, character, and conduct of the persons benefitted by the 

instrument;

• the participation by the beneficiary in the preparation or execution of 

the instrument;

• the words and acts of the parties;

• the interest in and opportunity for the exercise of undue influence;

• the physical and mental condition of the grantor at the time of the 

instrument’s execution, including the extent to which she was 

dependent upon and subject to the control of the grantee; and

• the improvidence of the transaction by reason of unjust, unreasonable, 

or unnatural disposition of the property.
23

Pulido v. Gonzalez, No. 01-12-00100-CV, 2013 WL 4680415, at *3 (Tex. App.—Houston 

[1st Dist.] Aug. 29, 2013, no pet.) (mem. op.) (first citing Pearce v. Cross, 414 S.W.2d 457, 

462 (Tex. 1966); and then citing Guthrie v. Suiter, 934 S.W.2d 820, 831 (Tex. App.—

Houston [1st Dist.] 1996, no writ)).

“The person challenging the validity of an instrument generally bears the burden 

of proving the elements of undue influence by a preponderance of the evidence.” Estate 

of Klutts, No. 02-18-00356-CV, 2019 WL 6904550, at *3 (Tex. App.—Fort Worth Dec. 

19, 2019) (mem. op.) (first citing Quiroga v. Mannelli, No. 01-09-00315-CV, 2011 WL 

944399, at *5 (Tex. App.—Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op.); and 

then citing Rothermel, 369 S.W.2d at 922), withdrawn pursuant to settlement, No. 02-18-

00356-CV, 2020 WL 1646581 (Tex. App.—Fort Worth Apr. 2, 2020, no pet.) (mem. 

op.). “[I]n situations involving self-dealing in fiduciary or confidential relationships, a 

presumption of unfairness arises that shifts both the burden of production and the 

burden of persuasion to the fiduciary seeking to uphold the transaction.” Klutts, 2019 

WL 6904550, at *5 (citing Stephens Cnty. Museum, Inc. v. Swenson, 517 S.W.2d 257, 260 

(Tex. 1974) (observing that when a fiduciary relationship existed between sisters and 

their brother, who was operating under their power of attorney and who was also a 

director of the museum to which the sisters had made a contribution that they later 

sought to set aside, “[u]nder such conditions, equity indulges the presumption of 

unfairness and invalidity, and requires proof at the hand of the party claiming validity 

and benefits of the transaction that it is fair and reasonable”)).
24

ii. Breach-of-Fiduciary-Duty Evidence

The record reflects that Dorothy and Russell had made many changes to the 

Peek Trust beneficiaries’ shares over the years. At trial, the witnesses expressed some 

confusion about the latest amendment to the trust. The record reflects, however, that 

Dorothy filed a petition to modify the Peek Trust on November 15, 2012—five days 

before she died—to give herself the sole right to revoke and amend the trust. The 

petition indicates that the final amendment to date was the fourth amendment, dated 

October 18, 2010. The fourth amendment does not appear in the record, but testimony 

and other evidence indicates that it removed Latshaw as trustee. Linda asserts that the 

third amendment, dated May 19, 2010, was the last to alter the trust beneficiaries’ 

distribution percentages. Bruce does not dispute this assertion. The third amendment 

requires the trustee to distribute the remaining trust property “[a]s soon as practicable 

after the death of the survivor” as follows:

Name Relationship Share

Gary Bruce Peek Son 25.5%

Linda P. Mayfield Daughter 22.5%

Allen L. Latshaw Grandson 21.5%

Lainie K. Latshaw Granddaughter 24.5%

Bryan G. Peek Grandson 6.0%

Russell died on May 12, 2014. No evidence was presented at trial of any 

distributions after Russell’s death except for Bruce’s December 31, 2018 assignment of

“all of [the Peek Trust’s] rights, title, and interest in and to the Oil, Gas, and Mineral 

Lease[s]” on Blocks 22 and 40 to his PK Trust. Bruce was the sole remaining trustee at 
25

that point. This self-dealing transaction gave rise to an unfairness presumption, and 

Bruce had the burden to prove otherwise. See id. The record does not reflect any 

evidence addressing this presumption or showing that Bruce redistributed the 

transferred interest to the Peek Trust’s beneficiaries. This evidence alone is sufficient 

to constitute a breach of fiduciary duty. See Tex. Prop. Code Ann. § 113.053(a); Brault, 

493 S.W.2d at 578–79.

The record also reflects that Bruce failed to disclose to the trust beneficiaries

both this self-dealing transaction and the April 2012 property transfers that Bruce and 

Dorothy had signed as co-trustees. Specifically, Linda testified that she had received no 

information from Bruce about any of the transactions, and Latshaw testified that Bruce 

had not communicated with her since she was removed as trustee and that she was 

unaware that Bruce and Dorothy had transferred property from the Peek Trust in April 

2012. Bruce offered no evidence to rebut these allegations but testified that he did not 

know what was in the April 2012 deeds that he signed. The trial court was free to weigh 

this evidence. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)

(holding the factfinder is the sole judge of the credibility of the witnesses and the weight 

to be given to their testimony). Evidence of Bruce’s failure to disclose material facts 

affecting the trust beneficiaries’ rights is also sufficient to constitute a breach of 

fiduciary duty. See Moody, 2022 WL 14205534, at *7; Brault, 493 S.W.2d at 578–79.
26

iii. Undue-Influence Evidence

The evidence regarding Bruce’s alleged influence over Dorothy is mostly

testimonial. As the sole judge of the credibility of the witnesses and the weight to be 

given to their testimony, the factfinder may believe one witness and disbelieve another 

and resolve inconsistencies in any testimony. Golden Eagle Archery, 116 S.W.3d at 761; 

see also Figueroa v. Davis, 318 S.W.3d 53, 60 (Tex. App.—Houston [1st Dist.] 2010, no 

pet.) (citing City of Keller, 168 S.W.3d at 819–20). We may not substitute our judgment 

for that of the factfinder, even if the evidence would support a different result. Mar. 

Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).

As evidence that Dorothy’s April 2012 transfers were not the result of undue 

influence, Bruce first cites Linda’s and other family members’ “consistent[] misuse[] [of]

the gifts given them.” He contends that Dorothy “consistently reacted” to the misuse

“by limiting and, eventually, ceasing those gifts.” He also notes the acrimony between 

himself and Linda and Linda’s admission that Dorothy always favored him. As evidence 

of Linda’s allegedly contentious relationship with Dorothy, he cites Linda’s testimony 

that she called Dorothy by her first name instead of “mom,” that she did not feel like 

Dorothy was her mother, and that she referred to Dorothy as “Evil Dorothy.”

He also contends that there is no probative evidence that he exerted any 

improper influence over Dorothy or had sufficient control over the Peek Trust to selfdeal. He cites the testimony of Christy Lee, who had been legal counsel for the trustees.

Lee testified that Dorothy had made all trust decisions even though she was not the 
27

sole trustee. Lee also testified that Dorothy had made her own decisions and was “very 

adamant about what she wanted to have happen[].” Although Lee testified on direct 

examination that there was no undue influence over Dorothy’s decisions, on crossexamination she admitted that she could not say whether Bruce had ever influenced 

Dorothy’s decisions, noting that she (Lee) “was not with Bruce often.” Bruce also 

testified that he had not tried to influence Dorothy because “[t]hat wouldn’t work.”

Latshaw, Linda, and other witnesses told a different story. Latshaw testified that 

Bruce had been estranged from his parents until 2008. She said that Bruce did not come 

to Christmas gatherings and that Linda would pick up Bruce’s children and bring them 

to the gatherings without him. She estimated that he had not attended the family 

gatherings for about 35 years because “that’s about how long he and [Linda] had not 

been speaking to one another.”

Latshaw also testified that Russell and Dorothy had limited their gifts to Linda 

because they did not approve of her husband but that they had set up a savings account 

for Linda and wanted their “homestead to go to Linda.” A copy of the May 1, 2007 

trust amendment corroborates this testimony. The amendment limited Linda’s trust 

distributions to $4,000 per month out of concern for Linda’s and her husband’s 

spending habits and allocated the “family residence” to Linda upon Russell’s and 

Dorothy’s deaths.

Latshaw and Bruce became the Peek Trust’s trustees in January 2010 when 

Russell and Dorothy resigned. Dorothy removed Latshaw as trustee in October 2010 
28

when she suspected that Latshaw was attempting to increase Linda’s trust distributions.

Latshaw had been out of the country at the time and was told about the change only 

when she returned. She further testified that when she called to confirm that Dorothy

had intended for Latshaw to resign, Dorothy said, “Bruce had told her --.”10

Regarding Dorothy’s mental condition, Latshaw testified that in 2011, Dorothy

exhibited signs of dementia and was not able to “take care of the finances or do anything 

like that.” She further noted that she had power of attorney over Russell and that Bruce 

had power of attorney over Dorothy.

Latshaw also testified that Bruce would comment that “life would be easier if 

[Russell were] gone and [Dorothy] could live life in peace.” A private investigator that 

the family had hired to surveil the family residence in 2011 also testified that he had 

heard Bruce say that things would be much easier if Russell were dead. He also testified 

that Dorothy had struggled to remember her name during a court appearance in 2011.

April Geiger, a caregiver who was hired by the family in 2008, testified that she 

had seen Bruce at the house frequently, sometimes every day. Geiger described those 

times as tense and stated that when Bruce and Russell “saw each other, that was drama.” 

She said that Bruce would talk with Dorothy in the bedroom and that afterward

Dorothy would “be very upset,” “wanted to be left alone,” or “seemed upset and 

nervous and just fidgety.” 

10Bruce’s trial counsel interjected, but did not object, before Latshaw could finish 

her sentence. 
29

Geiger recounted an incident in which Dorothy had to go to the hospital. As it 

happened, a royalty check came in the same day. She said that Bruce had called Dorothy 

while she was at the hospital and said he was coming to get the royalty check. Dorothy 

told him not to, “got upset,” and handed the phone to Geiger. Geiger told Bruce that 

“[t]hings aren’t too good right now,” and Bruce responded, “I’m coming up there. Her 

purse is there.” She said that Bruce arrived and wanted his check and that “[t]here were 

some choice words, yelling, [and] security” when Russell arrived later. Geiger helped 

calculate Bruce’s royalty share and wrote the check.

She also testified that Dorothy “did what she wanted to do, but she could -- I 

don’t want to say persuaded, but she just, kind of, gets rattled, and I guess goes against 

what she wanted to do.” Geiger also said that she had heard about “Bruce wanting to 

be in charge of the finances and stuff because of some issues that Russell had done.”

Lauren Griffin, who was hired as a caregiver in August 2012, described Dorothy 

as “weak,” “frail,” and suffering from hallucinations in the last few months of her life.

She also described Bruce’s controlling behavior, specifically noting that Bruce 

prohibited anyone from coming to the house or the hospital to see Dorothy. She said 

that Bruce had prohibited her from telling family members when Dorothy was in the 

hospital, “even when [Dorothy] broke her hip.” According to Griffin, Bruce had also 

prohibited her from telling anyone when Dorothy died. 

She also said that Bruce was “[v]ery aggressive” with his parents and that Russell 

was afraid of him. According to Griffin, Russell would sometimes pretend to be asleep 
30

when Bruce came in. When several caregivers abruptly quit after Bruce had allegedly 

berated them for bringing fast food into the house, Russell purportedly told Griffin, 

“Please, please find my daughter and tell her I love her and that I’m okay. Please find 

Linda.” She further testified that although Dorothy had been described as someone 

who did what she wanted, “there was some influence there” and that “she was 

influenced by Bruce quite a bit.” Griffin also said that during her time with the family, 

Bruce was in control of Dorothy’s finances. 

Mary Kay Luker, another caregiver who was hired in 2010, testified about Bruce’s 

relationship with Russell and Dorothy. She said that Bruce was at the house at least 

once a day, sometimes two or three times a day, and he would call Dorothy every night 

before she went to bed. Luker testified that Dorothy was “very sharp” and “knew what 

she wanted.” She also testified that Dorothy had said, “When I die[,] Bruce is going to 

have a fight on his hands with the family.” According to Luker, Dorothy “didn’t like 

the situation, but that’s what she was dealing with.”

Linda testified that she had a good relationship with Dorothy but that Dorothy 

favored Bruce. She echoed Latshaw’s testimony that the family would gather with 

Russell and Dorothy every Christmas, that Bruce would not attend, and that she would 

bring Bruce’s children. She also said that Bruce “couldn’t stand” his parents and that 

he regularly said he “can’t wait until they die.” Bruce disputed that he ever wished either 

of his parents were dead or that he ever disrespected them. 
31

Linda also confirmed Latshaw’s testimony that Dorothy had reduced Linda’s 

trust distributions and was putting the amount reduced in a savings account. According 

to Linda, Dorothy did not like Linda’s husband’s spending habits. She also clarified that 

she did not refer to her mother as “Dorothy” while she was alive but that she did not 

feel like Dorothy was her mother after she died. Linda also said that she was joking 

when she called Dorothy “Evil Dorothy” but that Dorothy “was very partial to Bruce, 

and that’s her right if she wanted to be, but it -- it hurt me [a] lot.”

Regarding the alleged discord between herself and Dorothy over squandering 

gifts, Linda testified that Russell and Dorothy had given her two acres near Russell and 

Dorothy’s house. Despite her misgivings about living outside of town without a car, 

she and her husband had built a house on the property. A year later, they sold the 

property and moved into town because Linda felt that she was “stuck there with two 

children in diapers and without a car” and that she was “going to lose [her] mind if [she

kept] doing this.” She also testified that her parents had never given any indication that 

they would not leave her or her children anything when they died.

The record reflects conflicting evidence of Bruce’s influence over Dorothy and 

of Dorothy’s compromised mental and physical state in 2012. Specifically, trial 

testimony described Bruce as Dorothy’s favorite child despite his early distant

relationship with her, his sudden interest in Dorothy’s well-being in her last few years 

of life, his strict control over the family’s access to his parents at that time, his private 

consultations with Dorothy and her agitated responses, and his desire and opportunity
32

to control family finances. The conflicting testimony also described Dorothy as sharp 

and determined, yet forgetful and showing signs of dementia as early as 2011. Thus, 

there is some evidence that Bruce had motive and opportunity to unduly influence 

Dorothy to remove assets from the trust and that Dorothy was susceptible to his 

influence.

The testimony also reflects that although Dorothy had reduced Linda’s trust 

distributions, she did so because of Dorothy’s disdain for Linda’s husband, not Linda. 

Indeed, some testimony indicated that Dorothy had retained the reductions in a savings 

account for Linda. Bruce offered no evidence to contradict this testimony. Thus, there 

is some evidence that Dorothy did not intend to eliminate Linda’s share of the trust 

proceeds.

We conclude that the evidence is legally and factually sufficient to support the 

trial court’s determination that Bruce committed a breach of trust, see Gunn, 554 S.W.3d 

at 658; Pool, 715 S.W.2d at 635, and we overrule Bruce’s second issue.

III. Conclusion

Having overruled both of Bruce’s issues, we affirm the court’s judgment.

/s/ Wade Birdwell

Wade Birdwell

Justice

Delivered: September 14, 2023