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In re Estate of Emmons

Court of Appeals of Texas, Sixth District, Texarkana

September 7, 2017

IN THE ESTATE OF BRANDON SCOTT EMMONS, DECEASED

          Submitted: June 22, 2017

         On Appeal from the County Court at Law No. 1 McLennan County, Texas Trial Court No. 20150281PR1.

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Josh R. Morriss, III Chief Justice Date

         Before the unexpected death of Brandon Scott Emmons, he was engaged to Amanda Crawford, was just a few months short of their intended wedding date, and had been sharing his Windsor Avenue house in Waco[1] with her. The two had also been sharing living expenses and their mutual fondness for hunting. When Crawford moved out of the Windsor Avenue house a few months after Emmons' death, she took with her Emmons' collection of pistols, shotguns, rifles, and knives. Later, she sued Joyce Nuner, Emmons' sister, in her capacity as the Independent Administrator of Emmons' Estate, claiming that Emmons had gifted Crawford various assets and that she was entitled to reimbursement of various expenditures she had made before Emmons' death. Crawford's claims related to the house, Emmons' bank and investment accounts, a 1991 Airstream recreational vehicle (the Airstream RV), a 2006 Mastercraft boat, a 1991 Land Rover Defender (the Defender), [2] and a 2012 Land Rover Evoque (the Evoque). The Estate admitted that Emmons had given Crawford the Evoque, but denied the rest of her claims, and counterclaimed for the recovery of Emmons' furniture, rifles, shotguns, pistols, and personal belongings allegedly converted by Crawford. After a bench trial, the trial court denied all of Crawford's claims, except her claim relating to the investment account, and found in favor of the Estate on the conversion claim for the rifles, shotguns, pistols, and knives. After offsetting the damages awarded to

         Crawford against the Estate's damage award, the trial court entered judgment against Crawford in the amount of $42, 500.00.

         On appeal, Crawford complains that the trial court erred in admitting the listing of guns and knives found on Emmons' computer (Exhibit 2), that the court erred in excluding Crawford's testimony that Emmons had given her the Defender, that the evidence is insufficient to support (a) the trial court's finding that the guns and knives listed on Exhibit 2 were the property of the Estate, (b) the finding that Crawford committed conversion or civil theft of the property listed in Exhibit 2, (c) the finding that the Estate was damaged in the amount of $49, 000.00, (d) the trial court's refusal to find that Emmons gave Crawford the Defender, (e) the trial court's refusal to find that the Estate converted the Defender, (f) the refusal to find that the Estate was unjustly enriched by Crawford's contributions to Emmons' bank account and the Windsor house, and (g) the refusal to find that the Estate converted Crawford's interest in Emmons' bank account.

         We find that (1) Crawford failed to preserve her objection to the admission of Exhibit 2; (2) Crawford failed to preserve her complaint regarding the exclusion of her testimony;

         (3)sufficient evidence supports the trial court's complained-of fact-findings in favor of the Estate;

         (4)sufficient evidence supports the trial court's refusal to make the findings argued by Crawford on appeal, and (5) Crawford failed to preserve any complaint regarding the trial court's failure to find unjust enrichment and constructive trust. Therefore, we affirm the judgment of the trial court.

          1) Crawford Failed to Preserve her Objection to the Admission of Exhibit 2

         Much focus at trial involved what has been named Exhibit 2, a document printed from Emmons' computer listing guns, knives, and sporting good items that Emmons owned. Crawford asserts that the trial court erred in admitting Exhibit 2 because it was not properly authenticated. The Estate argues initially that Crawford failed to preserve her error by failing to make a specific or timely objection. Alternatively, the Estate argues that Exhibit 2 was properly authenticated and that any error was harmless. Crawford responds that her complaint was preserved when she filed a pre-trial objection to, and motion to exclude, Exhibit 2.[3] We find that Crawford has failed to preserve her complaint.

         The night before trial, Crawford filed an objection to the admission of Exhibit 2 based on an alleged lack of relevancy and an inability of anyone to authenticate it. Crawford did not obtain a pre-trial ruling on her objection. Instead, when Nuner was asked at trial whether she had been able to locate a gun inventory in Emmons' documents, Crawford objected and, when asked the nature of her objection, handed the trial court the document she had filed the night before. Although Crawford did not state her objection as to authentication, the trial court looked at the document. When asked for a response, the Estate's attorney stated that he was in the process of laying the predicate for admission of the document. The trial court then overruled the objection, and Nuner was questioned as to where she located the weapons inventory, whether she was familiar with and had seen Emmons' guns, knives, and sporting items, and whether Exhibit 2 was an accurate list of the same. Nuner testified that she obtained Exhibit 2 from Emmons' computer, that she was familiar with his guns, knives, and sporting items from being around the house and seeing them, and that Exhibit 2[4] appeared to be an accurate inventory of Emmons' guns, knives, and sporting equipment.

         The following exchange took place:

[Counsel for the Estate]: At this time, we offer Exhibit 2 into evidence, Judge.
(Plaintiff Exhibit No. 2 offered)
THE COURT: Exhibit 2 is admitted.
Q. [Counsel for Estate] All right. Those guns that are listed there --
THE COURT: Hold on.
[Counsel for Crawford]: I just want to object, for the record.
THE COURT: All right. Anything further, Ms. Galik?
[Counsel for Crawford]: No.
THE COURT: All right. It's admitted. Objection is overruled.

         Crawford argues that her objection to Exhibit 2 was preserved when she filed her pre-trial objection and motion to exclude, citing Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203- 06 (Tex. App.-Texarkana 2000, pet. denied). However, in Huckaby, the appellant filed pre-trial objections and a motion to exclude evidence, a pre-trial hearing was held on the objections, and the trial court's pre-trial ruling on the objections was in writing. Id. at 205. We held that, in that case, the trial court's ruling on the pre-trial objections would preserve the objection through trial. Id. at 206. In this case, Crawford neither brought her objections and motion to exclude to the trial court's attention before trial, nor obtained the trial court's pre-trial ruling on the same. Rather, Crawford presented the trial court with a copy of her objections to explain the basis of her objection at trial. Without a pre-trial ruling by the trial court, her objections were not preserved throughout trial without lodging a timely and specific objection to the evidence each time it was offered. See id.

         To preserve a complaint about the admission of evidence on appeal, the record must show that the complainant made a timely objection "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex.R.App.P. 33.1(a)(1)(A). Further, unless the party obtains a running objection, she must object to the evidence every time it is offered, or the objection is not preserved. Ganter v. Indep. Bank, No. 05-15-00413-CV, 2016 WL 4376284, at *5 n.4 (Tex. App.-Dallas Aug. 16, 2016, pet. denied) (mem. op.) (citing Duperier v. Tex. State Bank, 28 S.W.3d 740, 755 (Tex. App.-Corpus Christi 2000, pet. dism'd by agr.)); Brown v. Traylor, 210 S.W.3d 648, 656 n.8 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

         In this case, it appears that both the parties and the trial court understood that Crawford's objection to Exhibit 2 was based on a lack of authentication. It also appears that the trial court recognized that Crawford's objection when the exhibit was offered into evidence was timely. Crawford did not ask for a running objection, however, and she failed to object when two other witnesses, both Nuner's husband, Eric, and Emmons' close friend, David Jeremy Hill, testified that Exhibit 2 was an accurate inventory of Emmons' weapons. Since the same evidence was admitted without objection, any error concerning the admission of Exhibit 2 was unpreserved. Brown, 210 S.W.3d at 656 n.8; Crouse v. State, 441 S.W.3d 508, 517 (Tex. App.-Dallas 2014, no pet.). We overrule this point of error.

         (2) Crawford Failed to Preserve her Complaint Regarding the Exclusion of Her Testimony

         Crawford complains that the trial court erred in excluding (a) her testimony that Emmons gave her the Defender and (b) her testimony that she made deposits into Emmons' bank account to pay joint expenses.[5] Crawford first points to the following exchange during her testimony:

Q. [By counsel for Crawford]: And when did you get engaged?
A. Oh, July 14th -- is that right? I forgot. I can't remember.
Q. Of what year?
A. 2013.
Q. And you posted an announcement?
A. I did. I posted it up on Facebook at that point in time that we had gotten engaged. And Brandon was so excited. We were having such a great time. And he had also given me the blue beast at that point in time, too.
MR. RAINEY (counsel for the Estate): I'm going to object to hearsay and dead man's rule.

         THE COURT: Sustained. Crawford argues that there was corroborating evidence in the record, so the trial court erred in refusing her testimony regarding Emmons' ...


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