Somer v. Bogart

Citations: 749 S.W.2d 202; 1988 Tex. App. LEXIS 1012; 1988 WL 45834Docket: 05-87-00689-CV

Court: Court of Appeals of Texas; March 24, 1988; Texas; State Appellate Court

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Joseph and Phyllis Somer appeal a trial court's order granting title to a parcel of land in Dallas to Theodore Bogart, Lynn Bogart, and Irene Warsaw, as beneficiaries under the wills of Allen and Gertrude Bogart. The Somers contend that the trial court erred by not instructing the jury that the burden of proof for imposing a resulting trust should be "clear and convincing evidence," and they also claim error in the court's refusal to submit a special issue regarding the statute of limitations. The appellate court sustains the Somers' first point and overrules the second, ultimately reversing the trial court's judgment and remanding for a new trial.

This case arises from two lawsuits related to the probate of Allen and Gertrude Bogart's estates, focusing on the ownership of real property purchased by the Bogarts but titled in Joseph Somer's name. The jury found, by a preponderance of the evidence, that Allen and Gertrude did not intend to gift the property to Joseph Somer. Based on this finding, the trial court awarded title to the Bogart beneficiaries. The parties agreed that the Bogarts purchased the property in 1960 and paid the full purchase price, maintaining ownership and expenses until their deaths.

Texas law presumes that the record owner is the true owner of property, placing the burden on those claiming a parol trust to prove its existence. The Bogart beneficiaries sought to establish a purchase money resulting trust, asserting that Joseph Somer held the property in trust for their benefit.

A purchase money resulting trust arises when property is deeded in one person's name while another provides the purchase funds. Courts view these trusts with suspicion due to potential for fraud, requiring "clear and convincing" evidence from those claiming such a trust. An exception exists when parents pay for property titled in their child's name, creating a presumption of a gift until rebutted. In the case discussed, Gertrude and Allen Bogart purchased property for their son-in-law, Joseph Somer. The court considers whether a presumption of gift applies to a son-in-law, suggesting that he can be treated as a natural object of a father-in-law's bounty. A presumption of gift can be challenged with evidence indicating no intent to gift. If successfully rebutted, a resulting trust is established with legal title in the grantee and beneficial title in the purchaser. The burden lies with the Bogart beneficiaries to disprove the gift presumption, necessitating a higher standard of evidence akin to that required for establishing a parol trust, despite the usual preponderance of evidence being sufficient in rebutting gift presumptions.

A parol trust can only be established by clear, strong, and convincing evidence that rebuts the presumption of a gift. Several cases, including Hall v. Barrett and D'uva v. D'uva, confirm that the burden of proof to challenge a gift presumption requires evidence that is clear, cogent, and convincing, not merely a preponderance of the evidence. The trial court erred by applying the lower standard of preponderance of evidence rather than the required clear and convincing proof. Additionally, the Somers' assertion that the trial court incorrectly refused to submit an issue concerning the statute of limitations was found meritless. The statute does not begin to run until the beneficiaries are aware of the trustee's repudiation of the trust, making the date the Bogarts claimed no gift irrelevant. The issue proposed by the Somers was not substantially correct for determining the limitations period, leading to the court's appropriate refusal to submit it. Consequently, the judgment of the trial court was reversed, and the case was remanded for a new trial.