Louise F. McAllister, Ruth McAllister, Naomi H. McAllister, Herbert Heliton, Bobbie Heliton, and Falton Heliton v. Robert Jordan, Public Administrator of the Estate of Ethel Doris Rome, Deceased--Appeal from Probate Court No 4 of Harris County

Reversed and Rendered and Memorandum Opinion filed April 28, 2005

Reversed and Rendered and Memorandum Opinion filed April 28, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00928-CV

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LOUISE F. MCALLISTER, RUTH MCALLISTER, NAOMI H. MCALLISTER, HERBERT HELITON, BOBBIE HELITON, AND FALTON HELITON, Appellants

V.

ROBERT JORDAN, PUBLIC ADMINISTRATOR OF THE ESTATE OF ETHEL DORIS ROME, DECEASED, Appellee

On Appeal from the Probate Court No. 4

Harris County, Texas

Trial Court Cause No. 328,135

M E M O R A N D U M O P I N I O N

Appellants are the maternal heirs of Bettye Jo Grant, who died intestate in 2000. Appellants appeal the trial court s judgment awarding Bettye Jo s paternal moiety to appellee Robert Jordan, as public administrator of Ethel Rome s estate. Because no evidence supports that judgment, we reverse that part of the judgment awarding the paternal moiety to Jordan and render judgment that appellants receive both the paternal and maternal moieties of Bettye Jo s estate.

Factual and Procedural Background

Bettye Jo never married or had children, nor did she adopt any children. Her mother and purported father, Bruce Grant, both predeceased her, as did her grandparents. Therefore, when Bettye Jo died intestate, her maternal heirs filed an application, later amended, to determine heirship with the probate court in Harris County, Texas. Robert Jordan, the Massachusetts public administrator for the estate of Ethel Doris Rome, filed an original answer asserting that he represented Ethel s estate and that Ethel s estate was entitled to Bettye Jo s paternal moiety. After a number of hearings, appellants filed a motion for summary judgment asking the court to award them both the maternal and paternal moieties. However, in the final judgment, the court awarded one half of Bettye Jo s estate the paternal moiety to Jordan, as administrator of Ethel s estate, and the other half the maternal moiety to appellants. The final judgment also appointed Bettye Jo s maternal nephew, Falton Heliton, as the dependent administrator of Bettye Jo s estate.

On appeal, appellants contend the trial court erred in two respects. First, appellants assert the probate code did not allow the trial court to adjudicate Bettye Jo s paternity after both she and her purported father had died.[1] Second, appellants contend the trial court improperly awarded the paternal moiety to Jordan because there is no evidence in the record to support his assertion that Ethel Rome was Bettye Jo s paternal heir.[2] Because the second issue is dispositive of this appeal, we address it first.

Analysis

There is no evidence that Ethel Rome was Bettye Jo s paternal heir.

The trial court made several factual findings in connection with this case. In particular, the trial court found that Bruce Grant was Bettye Jo s father and that he was survived only by his sister, Ethel Rome. We review a trial court s findings of fact for sufficiency of the evidence under the same legal standards that are used to review jury verdicts. Hassell Constr. Co., Inc. v. Stature Commercial Co., Inc., ---S.W.3d---, 2005 WL 608734, *3 (Tex. App. Houston [14th Dist.] Mar. 17, 2005, no pet. h.) (citing Ortiz v. Jones, 917 S.W.2d 770, 771 (Tex. 1996) (per curiam)). We must sustain a no-evidence challenge when there is a complete absence of evidence of a vital fact. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003) (per curiam) (citations omitted).

In addition to witness testimony, the evidence in this case consists of Bettye Jo s birth and death certificates, and Bruce Grant s death certificate. Bettye Jo s birth certificate does not name her father, although her death certificate identifies her father as Bruce Grant. Similarly, the witnesses who testified stated that Bruce Grant was Bettye Jo s father, but did not testify about Ethel Rome s relationship with Bruce Grant. Jordan asserts that Ethel Rome was Bruce Grant s sister, and that she predeceased him. Therefore, Jordan argues, the paternal moiety of Betty Jo s estate should pass through Ethel Rome s estate to her son, John Rome. However, this alleged sibling relationship between Ethel Rome and Bruce Grant has no support in the record.[3] Given this complete absence of evidence of a vital fact, the trial court s finding that Jordan, as Ethel Rome s estate administrator, should recover Bettye Jo s paternal moiety cannot stand.[4] See id. We reverse and render judgment that appellants, as Bettye Jo s maternal heirs, recover both the paternal and maternal moieties.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed April 28, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

[1] See Tex. Prob. Code 42(b).

[2] In addition, appellants filed a motion, which was taken with the case, asking this court to dismiss for lack of jurisdiction because appellee Jordan did not document that he had standing to bring the suit. We conclude that this failure did not deprive the trial court of jurisdiction and deny the motion.

[3] Jordan asserts that he tendered documentation of this relationship to the trial court. However, there is no documentation in our record, nor anything that reflects that this documentation was ever admitted into evidence during the proceedings below.

[4] Because the judgment must be reversed on this ground, we do not address whether section 42(b) of the Probate Code permits the court to adjudicate paternity in these circumstances.