Linda Ann Johnson v. Frankie L. Chandler

Affirmed and Memorandum Opinion filed September 2, 2004 Affirmed and Memorandum Opinion filed September 2, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00123-CV ____________ LINDA ANN JOHNSON, Appellant V. FRANKIE L. CHANDLER, Appellee On Appeal from Probate Court No. 4 Harris County, Texas Trial Court Cause No. 323,647-401 M E M O R A N D U M   O P I N I O N This is an equitable adoption case in which appellant, Linda Ann Johnson, contends she was an adopted daughter and only heir of Bessie Mae Brown. After a bench trial, the judge concluded appellant was a niece and not an adopted child of the decedent, and therefore, not entitled to any portion of the inheritance. Appellant argues the trial court erred by not declaring she was the adopted daughter of the decedent and by dividing the estate between the decedent=s siblings. We affirm. Factual and Procedural Background Appellant was born in November 1957 to Josie Brown Jefferson and Bernest Jefferson. When appellant was three months old, she began living with Oscar Brown and Bessie Mae Brown, her biological aunt and uncle. Oscar and Bessie Brown reared appellant, provided for her education, and otherwise cared for appellant=s needs. Appellant testified that Bessie told her she was adopted and appellant always believed she was adopted by Oscar and Bessie. Appellant married and had four children, who referred to Oscar and Bessie as their grandparents. Oscar and Bessie even raised appellant=s oldest child until he graduated from high school. Oscar died intestate on June 9, 2000 and Bessie died intestate on July 1, 2001. Appellant filed an application to determine heirship on July 17, 2001, claiming entitlement to a one hundred percent undivided interest in Bessie=s estate because of her status as the decedent=s daughter. Appellee Frankie Chandler responded by filing a general answer, denying all of the allegations contained in the application filed by appellant. The case was tried to the court on October 15, 2002. The trial court entered its judgment declaring heirship on December 23, 2002, holding that because appellant failed to prove she was equitably adopted, she was not an heir to the estate. The court further held the heirship of the decedent had been proven and awarded the decedent=s sisters, Frankie Chandler and Jimmie Crownover, each a one-half interest in the estate. Pursuant to appellant=s request, the trial court entered findings of fact and conclusions of law. The trial court=s findings of fact and conclusions of law are as follows: Findings of Fact 1. Bessie Mae McKinney Brown died intestate July 1, 2001. Mrs. Brown was married to Oscar Brown who predeceased her on June 9, 2000. Mr. Brown also died intestate. Mrs. Brown had no children. 2. Linda Ann Johnson was born November 27, 1957 and is the biological daughter of Bernest Jefferson and Josie Brown Jefferson. 3. Josie Brown Jefferson is the sister of Oscar Brown. 4. Linda Ann Johnson is the niece of Oscar Brown. 5. Linda Ann Johnson was told that she was adopted and considered Bessie Brown and Oscar Brown to be her mother and father. There was no attempt by Bessie Brown to formally adopt Linda Ann Johnson. 6. Linda Ann Johnson was three months old when she began living with Bessie Brown. 7. There was no agreement between Linda Ann Johnson=s biological parents or either of her parents and Bessie Brown to adopt Linda. Conclusions of Law 1. Linda Ann Johnson failed to prove that there was an agreement between her parent and Bessie Brown that she would be adopted and therefore she is not an heir of Bessie Brown. By four issues, appellant contends (1) the trial court erred by awarding an interest in the estate to appellee and appellee=s sister because they did not request such relief; (2) the trial court=s findings of fact and conclusions of law are factually and legally insufficient; and (3) the trial court erred by not entering specific findings of fact and conclusions of law on an alternative ground of recovery. Discussion I. Division of the Estate In her first issue, appellant contends the trial court erred by awarding an interest in the estate to appellee and appellee=s sister because neither party requested such relief. In support of her contention, appellant relies on Texas Beef Cattle Company v. Green, 921 S.W.2d 203 (Tex. 1996); Gorman v. Life Insurance of North America, 811 S.W.2d 542 (Tex. 1991); Khalaf v. Williams, 814 S.W.2d 854 (Tex. App.CHouston [1st. Dist.] 1991, no writ); Burnett v. James, 564 S.W.2d 407 (Tex. Civ. App.CDallas 1978, writ dism=d); and City of Floydada v. Gilliam, 111 S.W.2d 761 (Tex. Civ. App.CAmarillo 1937, no writ). These cases are inapposite to this case because none of these cases involve a probate proceeding to declare heirship, as specifically provided for in the Probate Code. See Tex. Prob. Code Ann. '' 48B56 (Vernon 2003). The Texas Probate Code provides that in a proceeding to determine heirship, the court may determine and declare who are the heirs of the decedent and declare their respective shares and interests in the estate. Tex. Prob. Code Ann. ' 48. The proceedings may be instituted and maintained by any person claiming to be the owner of the whole or a part of the decedent=s estate, and when such proceedings are instituted, any unknown heirs and all persons who are named in the application as heirs shall be made parties to the proceedings. Tex. Prob. Code Ann. ' 49. Further, the Probate Code provides that Athe judgment of the court in a proceeding to declare heirship shall declare the names and places of residence of the heirs of the decedent, and their respective shares and interests in the real and personal property of such decedent. If the proof is in any respect deficient, the judgment shall so state.@ Tex. Prob. Code Ann. ' 54. Here, appellant filed the application to determine heirship, claiming to be the owner of the entire interest in decedent=s estate. Once appellant instituted the heirship proceedings, the court was required under the Probate Code to declare the heirs and their respective interest. Id. Accordingly, we hold the trial court did not err in determining appellee and her sister to be heirs to the decedent=s estate. Appellant=s first issue is overruled. II. Sufficiency of the Evidence Because appellant=s second and forth issues are nearly identical, we will address them simultaneously. In these issues, appellant challenges the trial court=s findings of fact and conclusions of law relating to the existence of an agreement to adopt, claiming (1) there is no evidence to support the finding; (2) the finding is against the great weight and preponderance of the evidence; and (3) the existence of an agreement to adopt was established by undisputed evidence. Essentially, appellant is challenging the legal and factual sufficiency of the evidence to support the trial court=s findings of fact and conclusions of law. A. Findings of Fact The trial court=s fact findings are reviewed for legal and factual sufficiency of the evidence under the same standards applied when reviewing evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When reviewing a trial court=s findings of fact, the findings have the same weight as a jury=s verdict. Harris County Appraisal Dist. v. Wilkerson, 911 S.W.2d 84, 86 (Tex. App.CHouston [1st Dist.] 1995, writ denied). When challenged on appeal, however, the findings are not conclusive if there is a complete reporter=s record, in which case, the findings are conclusive only if supported by evidence of probative force. In re K.R.P., 80 S.W.3d 669, 673 (Tex. App.CHouston [1st Dist.] 2002, pet. denied); Wilkerson, 911 S.W.2d at 86. The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Barrientos v. Nava, 94 S.W.3d 270, 288 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Because there is a complete reporter=s record in this case, the trial court=s findings will not be disturbed if there is any evidence of probative force to support them. Id. In determining legal sufficiency or Ano-evidence@ issues, we consider only the evidence and inferences that tend to support the findings and disregard all evidence and inferences to the contrary. Valdez v. Valdez, 930 S.W.2d 725, 730 (Tex. App.CHouston [1st Dist.] 1996, no writ). If there is more than a scintilla of evidence to support the finding, the claim is sufficient as a matter of law, and any challenges go merely to the weight to be given the evidence. Spiers v. Maples, 970 S.W.2d 166, 170 (Tex. App.CFort Worth 1998, no pet.). Thus, we will uphold the finding if there is some evidence to support it, in other words, when the proof supplies a reasonable basis on which reasonable minds may reach different conclusions about the existence of the vital fact. Id. (citing Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992)). When a party who has the burden of proof attacks the factual sufficiency of the evidence to support an adverse finding, she must demonstrate that the finding is against the great weight and preponderance of the evidence. Mohnke v. Greenwood, 915 S.W.2d 585, 589 (Tex. App.CHouston [14th Dist.] 1996, no writ). We must consider the entire record and set aside the verdict only if it is so contrary to the overwhelming weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985); Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex. App.CHouston [14th Dist.] 2002, no pet.); Mohnke, 915 S.W.2d at 589. Adoption by estoppel may be employed to prohibit the adoptive parents and their privies from invalidating the status of an adopted child when either: (1) the parties acted in good faith under an instrument of adoption that fails to comply with the adoption statute; or (2) an agreement to adopt existed between the parties, i.e., between the adoptive parent and the child, or between the adoptive parent and the natural parent. Cavanaugh v. Davis, 235 S.W.2d 972, 973B74 (Tex. 1951). The burden is on the proponent to establish the existence of the equitable adoption by a preponderance of the evidence. Moran v. Adler, 570 S.W.2d 883, 885 (Tex. 1978). An agreement to adopt must exist before the trial court may apply the equitable doctrine of adoption by estoppel. Cavanaugh, 235 S.W.2d at 974. In this case, ten witnesses testified at trial, but not one witness testified Bessie agreed to adopt appellant. Appellant testified that Bessie told her she was adopted and the two maintained a very close mother/daughter relationship. Appellant also relies heavily on the testimony of Reverend James Earl Ray, who testified appellant was Bessie and Oscar=s daughter and they Atook [appellant] out of her grandmother=s house after she was born. Her grandfather and her natural mother talked about it.@ Contrary to appellant=s contention, this, however, is not evidence of an agreement by Bessie to adopt appellant; rather, it is evidence appellant went to live with her aunt and uncle shortly after her birth. Appellant=s five other witnesses testified that Bessie treated appellant as her own daughter and referred to appellant as her daughter. One witness, who lived near the Browns and attended school with appellant, testified she thought appellant was Bessie=s daughter because Bessie referred to appellant as her daughter, they maintained a parent/child relationship, and appellant was known as ALinda Ann Brown.@ Additionally, school records introduced during trial show appellant=s name as ALinda A. Brown@ and appellant=s father or guardian as AOscar Brown.@ Further, the obituary for Bessie Brown refers to appellant as her daughter. Appellee, however, testified she was very close with her sister, Bessie, and that Bessie never once referred to appellant as her daughter. Appellee further testified that she did not meet and never heard Bessie mention appellant until appellant was a teenager. Appellee stated that when Bessie would mention appellant, it was in the context of discussing how mean appellant was to her. Two of appellee=s children, Marylee Chambers and Royce Mohammed, also testified that they never heard Bessie refer to appellant as her daughter. Chambers testified she did not meet appellant until she was older, despite the fact that as a teenager, she visited Bessie during the summers for extended periods of time. Mohammed testified that Oscar and Bessie referred to appellant as their niece, not their daughter. We will first address appellant=s legal sufficiency challenge to the trial court=s finding of fact regarding the absence of an agreement of adoption between Bessie and Linda Ann Johnson=s biological parents. Reviewing the evidence which supports the finding, the trial court was presented with conflicting testimony regarding the relationship between appellant and Bessie and the existence of an agreement. The trial court was therefore entitled, as fact-finder, to believe or disbelieve all or any part of the evidence. Barrientos, 94 S.W.3d at 288. Because there was some evidence to support the trial court=s finding that no agreement existed between Bessie and her natural parents or grandparents to adopt appellant, we hold the evidence was legally sufficient to support the finding. With regard to the factual sufficiency challenge, we review all of the evidence presented to the trial court, and after reviewing such evidence, we cannot say the evidence contrary to the finding is so overwhelming as to be manifestly wrong and unjust. While appellant presented evidence of her close relationship with Bessie, neither the emotional bond nor these actions support imputing the legal bond of adoption absent evidence of an agreement or contract to adopt appellant. Accordingly, we hold the evidence is factually sufficient to support the trial court=s finding of fact. B. Conclusions of Law Conclusions of law are always reviewable. Jean v. Tyson-Jean, 118 S.W.3d 1, 4 (Tex. App.CHouston [14th Dist.] 2003, pet. denied). They will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence. Kotis v. Nowlin Jewelry, Inc. 844 S.W.2d 920, 922 (Tex. App.CHouston [14th Dist.] 1992, no writ). Conclusions of law will not be reversed, unless they are erroneous as a matter of law. Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 277 (Tex. App.CHouston [14th Dist.] 1999, pet. denied). A trial court=s conclusions of law are reviewed de novo as legal questions, and cannot be challenged on factual sufficiency grounds. Texmarc Conveyor Co. v. Arts, 857 S.W.2d 743, 744B45 (Tex. App.CHouston [14th Dist.] 1993, writ denied); O=Farrill Avila v. Gonzalez, 974 S.W.2d 237, 243 (Tex. App.CSan Antonio 1998, pet. denied). Under de novo review, the reviewing court exercises its own judgment and redetermines each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). Incorrect conclusions of law will not require a reversal if the controlling findings of fact will support a correct legal theory. Johnston, 9 S.W.3d at 277. In order to inherit as an heir, appellant was required to show she was an adopted child of Bessie Brown. The trial court concluded appellant failed to prove Bessie agreed with appellant=s biological parents to adopt her. Because we have upheld the trial court=s finding that there was no agreement between Bessie and Linda Ann Johnson=s biological parents to adopt Linda Ann, the trial court=s conclusion of law is supported by a controlling finding of fact. Thus, the trial court did not err in concluding appellant was not an heir of Bessie Brown because she failed to prove an agreement between Bessie Brown and appellant=s natural parents existed. Therefore, we uphold the trial court=s conclusion of law that an agreement did not exist. Appellant=s second and fourth issues are overruled. III. Additional Findings of Fact and Conclusions of Law By her third issue, appellant contends the trial court=s judgment is not supported by its findings and conclusions because the findings and conclusions do not address all grounds of recovery. However, if the trial court=s original findings do not address a ground of recovery or a defense, then the party relying on that ground or defense must request additional findings. Sears, Roebuck & Co. v. Nichols, 819 S.W.2d 900, 907B08 (Tex. App.CHouston [14th Dist.] 1991, writ denied); Limestone Group, Inc. v. Sai Thong, L.L.C., 107 S.W.3d 793, 799 (Tex. App.CAmarillo 2003, no pet.); Levine v. Maverick County Water Control & Improvement Dist. No. 1, 884 S.W.2d 790, 796 (Tex. App.CSan Antonio 1994, writ denied). By failing to request additional findings, the party waives the right to complain on appeal that the findings were not full and complete. Cities Servs. Co. v. Ellison, 698 S.W.2d 387, 390 (Tex. App.CHouston [14th Dist.] 1985, writ ref=d n.r.e.); Limestone Group, 107 S.W.3d at 799; 1st Coppell Bank v. Smith, 742 S.W.2d 454, 465 (Tex. App.CDallas 1987, no writ). Adoption by estoppel applies when an agreement to adopt exists between the adoptive parent and the child or between the adoptive parent and the natural parent. Cavanaugh, 235 S.W.2d at 973B74. Appellant argues that because the trial court=s conclusion of law only addressed the existence of an agreement between her biological parents and Bessie Brown, we must reverse because she could also prove adoption by estoppel by establishing an agreement existed between herself and Bessie Brown. Appellant=s argument fails, however, because she did not request additional findings and conclusions based on the additional ground of recovery. Further, appellant never argued or presented the additional ground of recovery to the trial court. Therefore, because appellant failed to request additional findings or conclusions, she has waived any alleged error by the trial court in failing to address the other ground of recovery. Sears, Roebuck & Co., 819 S.W.2d at 907B08; Fielder v. Abel, 680 S.W.2d 655, 656B57 (Tex. App.CAustin 1984, no writ). Appellant=s third issue is overruled. Conclusion Having overruled appellant=s four issues on appeal, we affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion/Opinion filed September 2, 2004. Panel consists of Justices Yates, Anderson, and Hudson.