text:
    In the ESTATE OF Viola Conner TRAWICK, Deceased.
    No. 06-04-00083-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted May 24, 2005.
    Decided Aug. 18, 2005.

      Robert M. Minton, Minton & Brown, PLLC, Henderson, for appellant.
    John R. Mercy, Mercy*Carter*Tidwell, LLP, Texarkana, Clay Wilder, Wilder & Wilder, PC, Henderson, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

This case is a will contest. Viola Conner Trawick, at age ninety-two, executed a self-proving will March 11, 1998, naming her sister’s daughter, Reva Risinger, as independent executor and as sole beneficiary of her estate. Trawick died May 1, 2000. The will was admitted to probate May 26, 2000. On January 5, 2001, some of Trawiek’s grandchildren, Deborah de la Torie Shoemake, Ronnie de la Torie, Larry de la Torie, Joe Dan Hamilton, Teresa Coffin, Danny Hamilton, Bobby Hamilton, Tracy Hamilton, and Anita Hamilton (the contestants) filed a will contest, alleging Trawick lacked testamentary capacity, or alternatively, that Trawick signed the will as a result of Risinger’s undue influence. The case was tried before a jury. After the evidence was closed, the trial court sustained Risinger’s objection to submitting the issue of undue influence to the jury. The contestants do not complain of this action on appeal. The jury found that Trawick did have testamentary capacity March 11, 1998, and awarded Risinger her attorney’s fees. The trial court rendered judgment on the jury’s verdict.

The contestants appeal, alleging two points of error. Their first point concerns the testimony of Ted LeDet, a medical doctor, called by Risinger as an expert witness. The contestants allege the trial court erred in three ways concerning Le-Det’s testimony: 1) in refusing voir dire examination of the doctor to test his qualifications; 2) in allowing the doctor to testify as to the mental capacity of Trawick; and 3) in denying their motion to strike the doctor’s testimony. In their second point of error, the contestants contend the evidence supporting the jury’s finding of testamentary capacity is factually insufficient. We affirm the trial court’s judgment because: 1) all the complaints the contestants make concerning LeDet’s testimony were waived by their failure to make a timely objection; and 2) the evidence supporting the jury’s finding of testamentary capacity is factually sufficient.

Expert Testimony

The trial court has broad discretion in determining whether to allow expert testimony. McKinney v. Nat’l Union Fire Ins. Co., 747 S.W.2d 907, 910 (Tex.App.-Fort Worth 1988), aff'd, 772 S.W.2d 72 (Tex.1989); see Tex.R. Evid. 702. The expert evaluates the facts, and his or her evaluation must meet three prerequisites: 1) a body of scientific, technical, or other specialized knowledge must exist that is pertinent to the facts in issue; 2) the witness must have sufficient experiential capacity in his or her field of expertise; this capacity encompasses knowledge, training, and education; and 3) the facts evaluated must be within the witness’ field of specialized knowledge. Guentzel v. Toyota Motor Corp., 768 S.W.2d 890, 897 (Tex.App.-San Antonio 1989, writ denied). However, the weight given the testimony of an expert witness is to be determined by the trier of fact. First City Bank-Farmers Branch v. Guex, 659 S.W.2d 734, 739 (Tex.App.-Dallas 1983), aff'd, 677 S.W.2d 25 (Tex.1984).

Under Rule 702, scientific expert testimony must be reliable and relevant. Thus, in addition to showing that an expert witness is qualified, Rule 702 requires the proponent to show that the expert’s testimony is relevant to the issues in the case and is based on a reliable foundation. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554-55 (Tex.1995) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)); see generally Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex.1998).

A party has two fundamental options to preserve a complaint concerning an expert’s testimony: object to the testimony before trial or object when it is offered. Guadalupe-Bianco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex.2002); Maritime Overseas Corp., 971 S.W.2d at 409. Here, the contestants did neither.

LeDet’s deposition had been taken by the parties, so the contestants were apparently aware of his qualifications — or lack thereof — and the opinions he would be expected to express at trial. Nonetheless, no pretrial motion was filed — and no pretrial hearing held — challenging LeDet’s qualifications or opinions. The contestants waited until LeDet had begun his testimony at trial to raise any question concerning his qualifications. The context of that initial challenge was as follows:

[CONTESTANTS’ COUNSEL]: Your Honor, at this time, we’d like to take Dr. Le Det on voir dire examination before we go any further.
[RISINGER’S COUNSEL]: What is the purpose, Your Honor?
THE COURT: And the reason?
[CONTESTANTS’ COUNSEL]: The purpose is going into any qualifications for the subject matter of this proceeding we’re in here today.
[CONTESTANTS’ COUNSEL]: He’s not been shown as a specialist in the field of psychiatry or trained in psychiatry or anything of that kind.
THE COURT: I think that’s premature. And so, before — I’ll give you an opportunity to go into those matters before his opinion as a dissident [sic]....

The contestants cite Rule of Evidence 705 as authority for their contention the trial court erred in denying their voir dire examination. That rule provides, in relevant part, as follows:

(b).... Prior to the expert giving the expert’s opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based....
(c).... If the court determines that the underlying facts or data do not provide a sufficient basis for the expert’s opinion ... the opinion is inadmissible.

Tex.R. Evid. 705(b), (c) (emphasis added).

The contestants’ request to voir dire the witness for the purpose of “going into” his qualifications did not invoke these rules pertaining to inquiry into “the underlying facts or data” on which the expert’s opinions are based. Even if it did, Rule 705(b) clearly makes such voir dire discretionary in a civil case. The use of the word “may” creates discretionary authority in the trial court. Tex. Gov’t Code Ann. § 311.016(1) (Vernon 2005).

Further, contrary to the contestants’ contention, the trial court did not refuse their request to voir dire the witness; it merely ruled that such request was premature. The contestants never renewed their request and made no objections to the following testimony by LeDet on direct examination:

[RISINGER’S COUNSEL]: And based on your assessment of her in October of '97 and your assessment of her in October of '98, do you have an opinion that in March of '98 she would have had the mental ability to understand the making of a will?
[LeDET]: There is nothing from my recollection or in the notes that I have about Mrs. Trawick that would suggest that she could not understand and do— make a will or understand her finances.
[RISINGER’S COUNSEL]: Back in the '97, '98 window that we talked about. Really any time leading up to February, 2000, in your opinion did she have sufficient mental capacity to make a will?
[LeDET]: Yes, sir. The '97, '98 time frame. Yes, sir.
[RISINGER’S COUNSEL]: And again, is that based on your years of training and medical experience that you told us about?
[LeDET]: Yes, sir.
[RISINGER’S COUNSEL]: Doctor, have your opinions expressed today been based on reasonable medical probability?
[LeDET]: Yes, sir.

The contestants cross-examined LeDet concerning his opinions, but never asked any questions concerning his qualifications. It was only after LeDet had been excused as a witness and Risinger rested her case that the contestants then moved the trial court to strike LeDet’s testimony. Such motion came too late. See Rodgers v. State, 162 S.W.3d 698, 707 (Tex.App.-Texarkana 2005, pet. filed).

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, unless such grounds are apparent from the context. See Tex.R.App. P. 33.1(a); see also Tex.R. Evid. 103(a)(1). If a party fails to do this, error is not preserved, and the complaint is waived. See Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991). The Texas Supreme Court directly addressed the waiver issue in this context in Maritime Overseas:

Without requiring a timely objection to the reliability of the scientific evidence, the offering party is not given an opportunity to cure any defect that may exist, and will be subject to trial and appeal by ambush....
Reviewing courts may not exclude expert scientific evidence after trial to render a judgment against the offering party because that party relied on the fact that the evidence was admitted.

Maritime Overseas Corp., 971 S.W.2d at 409.

Here, the contestants’ objection to Le-Det’s testimony was untimely; hence, it was waived. Their first point of error is overruled.

Sufficiency of the Evidence

Citing Rule 38.1(h) of the Texas Rules of Appellate Procedure, Risinger suggests the contestants have not properly briefed their contention that the evidence supporting the jury’s finding of testamentary capacity is factually insufficient. We agree, but will address their contention in the interest of justice.

Standard of Review

Because the contestants filed then-contest after the will at issue had been admitted to probate, the burden of proof was on them to establish Trawick lacked testamentary capacity. See In re Estate of Robinson, 140 S.W.3d 782, 793 (Tex.App.Corpus Christi 2004, no pet.). When the party having the burden of proof challenges the factual sufficiency of a finding in the trial court, that party must show that the jury’s finding was against the great weight and preponderance of the evidence. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983); Murphy v. Fannin County Elec. Coop., 957 S.W.2d 900, 903 (Tex.App.-Texarkana 1997, no pet.). The court of appeals must consider and weigh all the evidence, and may set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001); Murphy, 957 S.W.2d at 903.

Testamentary Capacity

To make a valid will, Trawick must have been of sound mind when she signed the will. Texas courts define the term “sound mind” to mean “testamentary capacity.” “Testamentary capacity” means sufficient mental ability to understand the business in which the testator is engaged, the effect of his or her act in making the will, and the general nature and extent of his or her property. In re Neville, 67 S.W.3d 522, 524 (Tex.App.-Texarkana 2002, no pet.). The testator must be able to know his or her next of kin and the natural objects of his or her bounty, and the testator must have a sufficient memory to collect in his or her mind the elements of the business to be transacted and to hold them long enough to at least perceive their obvious relation to each other and be able to form a reasonable judgment about them. Id.; In re Estate of Jernigan, 793 S.W.2d 88, 89 (Tex.App.-Texarkana 1990, no writ).

The proper inquiry in a will contest on the ground of testamentary incapacity is the condition of the testator’s mind on the day the will was executed. When there is an absence of any direct testimony of acts, demeanor, or condition indicating that the testator lacked testamentary capacity on the date the will was executed, the testator’s mental condition on that date may be determined from lay opinion testimony based on the witnesses’ observations of the testator’s conduct either prior or subsequent to the execution. Lee v. Lee, 424 S.W.2d 609, 611 (Tex.1968). However, only that evidence of incompetency at other times has probative force which demonstrates that condition persists and “has some probability of being the same condition which obtained at the time of the will[’]s making....” Id.

The Contestants’ Evidence

Sondra Gray, Trawick’s hairdresser and long-time acquaintance, testified that, during the year 1996, Trawick’s “mind was not what it should be and she often accused her best friend of [stealing things from her home].” She also testified Trawick imagined there were children in her house and stated to Gray they kept her awake at night and “[t]hey just about drove her crazy.” Gray further testified that Trawick would speak of persons who were deceased as if they were living and that Trawick would get confused about when she was supposed to come into the beauty shop for her appointment. Gray acknowledged that on some days Trawick would be in “perfectly good condition” and that she had no idea what her condition was on the day she made her will.

Yvonne Cobbs, who had been acquainted with Trawick for fifty years and visited her monthly, testified that the deaths of Traw-ick’s son in 1989 and granddaughter in 1997 “turned her mind and her brain off to a certain degree to have to endure ... [t]hese shocks.” She also testified as to Trawick’s further mental deterioration after Trawick’s daughter, Winona de la To-rie, died in August 1997. It was Cobbs’ opinion that, in the fall of 1997, Trawick “wasn’t really mentally able or capable of carrying on any kind of business such as making a will or anything like that.” Cobbs acknowledged, however, she did not know how Trawick “appeared to be” on March 11, 1998, the date she signed the will at issue. Cobbs further testified that, to her knowledge, Trawick was never diagnosed with any kind of mental condition or problem.

Teresa Hamilton, one of the contestants, testified that, during the fall of 1997, when she was staying with Trawick, she became concerned about Trawick’s mental condition because on some days “she was extremely confused, and she would hide things.” However, Teresa further testified that, during the period of about mid-February to the end of March 1998, Traw-ick had mental capacity to sign a legal document granting Risinger power of attorney.

Eula Ray Rodrigues testified she had known Trawick for fifty to sixty years and was sometimes paid to sit with her. She testified as to Trawick’s deteriorating mental condition during the period from around August 1997 through March 1998. She gave specific examples, such as Traw-ick not being able to recognize people she knew well (including some of her relatives), and Trawick saying that certain people never came to see her when they had done so. Rodrigues acknowledged she was not aware of Trawick’s mental condition on the day she signed her will.

Toni Maher is a business person in Mt. Enterprise, where Trawick lived, and testified she knew Trawick for approximately ten years. She further testified concerning a social event where Trawick had difficulty recognizing people and concerning another occasion when Maher delivered flowers to Trawick’s house and had difficulty making Trawick understand that the flowers were for her.

Emmett Case testified that he leased Trawick’s land for pasture and that in January 1998 Risinger told him to give the lease check to her (Risinger) instead of Trawick because Trawick was “not real competent with herself’ and might misplace it.

David Collins, a police officer, testified that in 1991 Trawick reported her car as stolen when she had left it on a parking lot at the local community center.

Mike Coffin testified that, sometime after Winona died, he and his wife lived in Trawick’s home and helped take care of her until around March or April 1998. He further testified there were times when Trawick would have a lapse of memory. Specifically, he said she would insist on going to the bank to make deposits she had already made. He testified there were times when Trawick failed to recognize him, even though he was living in her home. Coffin admitted, however, that he considered Trawick mentally competent when she made an earlier will in late 1997 naming his then wife, Teresa, as executor.

Lana Porter worked in a grocery store in Mt. Enterprise and testified that, in March or April 1998, Trawick came to the store and tried to cash checks that had already been cashed. She described Trawick as “a sweet little lady but just had no idea of what was going on around her.”

Eunice Mae Mashburn played dominoes with Trawick. She testified that, after Winona died, Trawick became forgetful and confused and eventually dropped out of the domino playing group.

Janice Lane testified Trawick was her great aunt. She said that in 1998 Trawick asked Lane why Winona never came to visit Trawick. Lane also testified about Trawick calling on the telephone during the summer of 1997 and telling Lane it was snowing outside. Lane described Trawick’s mental condition as “gradually getting worse and worse,” beginning around 1997.

Marilyn Matlock was employed to stay with Trawick and was so employed until January 1997. Matlock testified Trawick would often forget who Matlock was and asked her when Winona was coming home. Trawick also confused Matlock with other people. Trawick asked Matlock about her own deceased mother as if she were still living.

Carolyn Hemphill, Matlock’s twin sister, testified that, from 1997 to 1998, Trawick often called Hemphill on the telephone and asked her where she lived, when Trawick already knew where Hemphill lived. Hemphill testified that several times Traw-ick would leave her home and need help finding her way back.

Tory de la Torie, the wife of one of the contestants, Ron de la Torie, stayed with Trawick just before Winona (Tory’s mother-in-iaw) died in August 1997. Tory testified Trawick did not recognize people out in public. Tory further testified Trawick accused sitters of stealing her dishes. Tory also testified regarding a bizarre incident that occurred in Trawick’s home when Trawick was sitting in the hallway removing her clothes in the middle of the night. Tory also testified she had difficulty getting Trawick to bathe, which she said was very uncharacteristic of Trawick.

Joe Jesse de la Torie, the father of some of the contestants, testified that, although he was divorced from Winona, he and Trawick continued a “very good” relationship until Trawick’s death. He testified Trawick’s behavior worsened from 1997 until the time of her death. He said that her condition worsened as members of her family died and that she “seemed to be disoriented” after the death of his divorced wife, Winona. He confirmed Trawick talked about people who were deceased as if they were living.

Gene Shoemake, the husband of Deborah de la Torie Shoemake, testified that, in the latter part of the year 1997, he and his wife moved to Mt. Enterprise. He testified they eventually lived next door to Trawick. He said he had frequent opportunities to observe Trawick’s demeanor from 1989 until the time of her death in 2000, and during this period her mental condition “got worse.” He admitted, however, there were “good days and bad days,” “good periods and bad periods,” but agreed that, even on the “good days,” he did not feel she returned to what he considered her “normal” behavior. He described Trawick talking about dead people as if they were living. He said she talked about strange people living in her house and stealing her blankets. He also testified Trawick complained to him about children playing on her porch at night and keeping her awake; he went to check, but never saw anyone. He testified he found canned food hidden in dresser drawers in Trawick’s house.

Deborah testified that in February 1998 Risinger said she did not feel Trawick was competent to change her will. Deborah further testified that Trawick did not know what she was doing a lot of the time. She said that, before Winona died in 1997, Trawick was “already becoming confused” and that her condition never improved, but got worse. She testified there were times when Trawick was “okay” and times when she was “not okay.” Deborah acknowledged she was unaware of Trawick’s mental fitness on the date she signed the will in issue.

Ron de la Torie testified that after Wi-nona died Risinger told him Trawick was not “in her right mind.” He described Trawick’s mental health and condition in 1996 as “less than normal.” When asked if he thought his grandmother was mentally capable of signing a will March 11, 1998, he answered, “Absolutely not.”

Risinger’s Evidence

Risinger testified she started taking care of Trawick because other members of the family asked her to and because of a promise she had made to her cousin, Wino-na. She said that, a few days before execution of the will in issue, she, at Trawick’s request, drove Trawick from her home in Mt. Enterprise to Henderson to see her attorney, Joe Shumate. Risinger further testified she remained in the waiting room while Trawick met with the attorney. Shumate testified that, during this visit, Trawick specified how she wanted her will to be written and that he prepared the will in accordance with her specifications. Shumate further testified Trawick later returned to his office and executed the will March 11, 1998. Risinger testified that she, at Trawick’s request, drove her to Shumate’s office for the signing of her will. Risinger admitted, and one of the witnesses to the signing of the will confirmed, that Risinger was present when the will was signed. The same witness to the signing of the will further testified that after the signing the will was delivered to Traw-ick. Risinger testified she then drove Trawick to the bank, where Trawick placed the will in a lockbox. Risinger said she waited in the lobby of the bank while Trawick did this. Shumate, the two witnesses to the signing of the will, and the person who notarized the signatures, testified that, at the time Trawick signed the will, she appeared mentally competent, not confused, appeared to know what was going on, and understood what she was doing.

John Webb, a long-time acquaintance of Trawick, testified he played dominoes with Trawick and never saw her exhibit any behavior that caused him to be alarmed. Wynell Webb, John’s wife, also a long-time acquaintance of Trawick, testified that, in all Wynell’s association with Trawick, she appeared to be mentally competent. Wy-nell attended Trawick’s ninety-fourth birthday party, where she called Wynell by her name and conversed normally with her.

Geneva Craycraft, an acquaintance from Trawick’s church since 1970, observed Trawick conversing with other people and enjoying her ninety-fourth birthday party. Ben Craycraft, Geneva’s husband, and Barbara Watson, acquaintances from church, observed Trawick to be the same every time they met her during the 1997-1998 time period.

Joy Gregg, a former employee of Citizens Bank in Mt. Enterprise, testified that Trawick was of sound mind and that, had it been otherwise, she would have never done business with her. Trawick did her own banking, even though Risinger would drive her to the bank.

LeDet, in addition to the testimony described above, also testified Trawick was doing very well when he examined her in 1994 and she was not on any medication. He further testified he did not see her again until about two and a half years later when she came to him complaining of a headache. He testified that a neurological examination was unremarkable and that her headache was resolved with minimal therapy. Trawick’s medical record from the doctor’s visits in late 1997 and 1998 indicate Trawick was aware and expressive of her opinion, including consent to certain tests while refusing others. LeDet testified it was not until February 2000 that Trawick became combative and confused. She was eventually diagnosed with and treated for “sundown syndrome.” The doctor testified that persons suffering from this syndrome “may do well during the day but as the sun goes down they tend to have more problems with confusion.”

Analysis

After considering and weighing all the evidence, we cannot say the evidence supporting the jury’s finding that Trawick did have testamentary capacity March 11, 1998, is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. While the contestants’ evidence did show that some of Trawick’s conduct (both before and after that date) was senile, eccentric, and even bizarre, there was no evidence any of that conduct persisted and “ha[d] some probability of being the same condition which obtained at the time of the will[’]s making.” Lee, 424 S.W.2d at 611. Some of the contestants’ witnesses acknowledged that, on some days, Trawick would be in “perfectly good condition” and that there were times when she was “okay” and times when she was “not okay,” that she had “good days” and “bad days.” Some of these witnesses also admitted Trawick had the mental capacity to sign another will and a power of attorney only a few months before she signed the will at issue. Accordingly, we conclude the contestants failed in meeting their burden of proving that Trawick lacked testamentary capacity March 11, 1998. Their factual sufficiency point is overruled.

Conclusion

We affirm the trial court’s judgment.

      . First names are used in this opinion, when appropriate, to distinguish such persons from others who share the same last name.


source: Caselaw Access Project

author: Justice RODRIGUEZ.

license: Public Domain

text:
    In the Interest of J.I.Z., a Minor Child.
    No. 13-04-066-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 18, 2005.

      John B. Worley, Child Support Division, Rhonda Pressley, Asst. Atty. Gen., Austin, for appellant.
    Alberto Garcia, Harlingen, for appellee.
    Jose Angel Zamora, Mercedes, pro se.
    Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.
   OPINION

Opinion by

Justice RODRIGUEZ.

Appellant, the Attorney General of Texas, appeals the trial court’s order granting a motion to reduce the child support payments of appellee, the legal father of J.I.Z., a minor child. Because the child support rights were assigned to the State, the Attorney General intervened. By four issues, appellant generally contends that until the parent-child relationship is severed, appellee remains the child’s legal father and owes a duty of support that cannot now be modified on the basis that he is not the child’s biological father. We reverse and render.

I. Background

A 1996 paternity adjudication established the parent-child relationship between appellee and the child. Among other things, the order identified appellee as the biological father of the child and ordered that he pay regular child support in the amount of $123.00 a month beginning July 1996. Appellee did not appeal this judgment. In 2002, after falling behind on child support payments, appellee obtained DNA test results which he contends excluded him as the child’s father. Based on the results of this DNA test, appellee filed a motion to modify his child support payments. Appellee attached the DNA test results to his pleading but did not offer or admit the results into evidence at the hearing on his motion to modify. After the hearing, at which no evidence was offered, the trial court granted appellee’s motion and reduced his child support payments to zero, thus relieving appellee of his duty to pay child support. This appeal ensued.

II. Analysis

By four issues, appellant contends that the trial court abused its discretion in granting appellee’s motion to modify his child support because (1) appellee cannot use a motion for modification to circumvent the requirements of a bill of review, (2) there is no evidence to support a finding that a material and substantial change in the financial situation of either appellee or the child has occurred, (3) there is no evidence to support a finding that there has been any change of circumstances since the previous judgment, and (4) there is no evidence that the court’s order is in the best interest of the child.

A. Standard of Review

We review a trial court’s decision to deny or grant a motion to modify a child support order for an abuse of discretion. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (per curiam). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles and therefore acted arbitrarily or unreasonably. Id. A trial court’s failure to analyze or apply the law correctly constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992); see Worford, 801 S.W.2d at 109.

In determining whether an abuse of discretion has occurred, we view the evidence in a light most favorable to the court’s decision and indulge every legal presumption in favor of its judgment. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied). Courts consider sufficiency of the evidence as one factor when determining whether the trial court abused its discretion. Zorilla v. Wahid, 83 S.W.3d 247, 252 n. 1 (Tex.App.-Corpus Christi 2002, no pet.). If findings of fact or conclusions of law are neither filed nor requested, the judgment of the trial court implies all necessary findings of fact to support it. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992). When a reporter’s record is brought forward, the legal and factual sufficiency of the implied findings may be challenged on appeal. Id. at 84.

B. Motion to Modify Support

By its first issue, appellant contends that it is not legally permissible to use a support modification action to circumvent the requirements of a bill of review, requirements that must be established in order to fully address the issue of parentage. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751-52 (Tex.2003) (setting out that a “bill of review petitioner must ordinarily plead and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) that the petitioner was prevented from making a meritorious claim or defense by the fraud, accident or wrongful act of his or her opponent, and (3) the petitioner was not negligent”) (citing Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950)). Appellant contends that until this parent-child relationship is determined by a bill of review proceeding or severed by termination, appellee remains the child’s legal father and continues to owe a duty of support commensurate with his financial ability and the child’s needs. Appellant asserts that appellee cannot avoid his duty to provide support simply by filing a motion to decrease his payments to zero, especially when the motion is based on a DNA report that purports to exclude his biological parenthood. We agree.

After the time for an appeal expires, a bill of review is the only method available to overturn a judgment. Middleton v. Murff, 689 S.W.2d 212, 213 (Tex.1985) (per curiam). Accordingly, a bill of review is the only means by which a party may overturn a paternity judgment after the time for an appeal has expired. See Spears v. Haas, 718 S.W.2d 756, 758 (Tex.App.-Corpus Christi 1986, orig. proceeding) (hearing bill of review two years after judgment); see also Layton v. Nationsbanc Mortg. Corp., 141 S.W.3d 760, 763 (Tex.App.-Corpus Christi 2004, no pet.) (setting out that the only exception to the four-year limitation for a bill of review is when the petitioner proves extrinsic fraud); Amanda v. Montgomery, 877 S.W.2d 482, 488 (Tex.App.-Houston [1st Dist.] 1994, no writ) (Hedges, J., concurring) (concluding alleged fraudulent acts pertaining to paternity, an issue involved in the original action, are allegations of intrinsic fraud, not extrinsic fraud). The Uniform Parentage Act also provides that “[a] party to an adjudication of paternity may challenge the adjudication only under the laws of this state relating to appeal, the vacating of judgments, or other judicial review.” See tex. Fam. Code Ann. § 160.637(e) (Vernon 2002).

Moreover, while a court may modify child support payments, an adjudicated father’s discovery that he is not the biological father of the child is not an event that provides the basis for termination of his duty of support. See id. § 154.006 (providing, unless otherwise agreed in writing or expressly provided in the order, termination of the duty of support occurs when the child marries, has disabilities removed, or dies, or the father (obligor) and mother (obligee) remarry); In re T.S.S., a Child, 61 S.W.3d 481, 485 (Tex.App.-San Antonio 2001, pet. denied) (setting out that “Texas courts are not free to adopt a rule that an adjudicated father may be relieved of his support obligations anytime he comes forward with DNA evidence post-decree that tends to exclude him as the biological father.”); Thompson v. Thompson, 572 S.W.2d 761, 763-65 (Tex.Civ.App.-Tyler 1978, no writ) (holding that “appellant will not be permitted, at this later [support modification] hearing, to raise for the first time the contention that he is not the father of the child”). Additionally, the Uniform Interstate Family Support Act provides that “[a] party whose parentage of a child has been previously determined by or under law may not plead nonparen-tage as a defense to a proceeding under this chapter.” tex. Fam. Code Ann. § 159.315 (Vernon 2002); see id. § 160.607(b) (Vernon Supp.2004-05) (setting out that a proceeding seeking to disprove the father-child relationship between a child and the child’s presumed father may be maintained only if the court determines the presumed father never treated the child as his own and the presumed father and the child’s mother never lived together or engaged in intercourse during the probable time of conception); id. § 160.608 (authorizing the trial court to deny a motion for an order for genetic testing filed by a presumed father).

Thus, because the time for an appeal has expired, appellee may only vacate the judgment of paternity through a bill of review, although, in this case, he may not satisfy the requirements for a bill of review. See Amanda, 877 S.W.2d at 488 (explaining that mother’s alleged fraud (concealing her knowledge of the identity of the child’s real biological father) was not extrinsic because it was not “collateral” to the matter that was tried, but rather directly related to paternity, a subject actually an issue in the initial proceeding). Appellee should not, however, be allowed to avert his duty of support by filing a motion to decrease his support payments to zero on the basis of DNA results without first overturning the parentage judgment or terminating his parentage. We, therefore, conclude that the trial court abused its discretion when it arbitrarily granted appellee’s motion and reduced his child support payments to zero. Appellant’s first issue is sustained.

C. Evidentiary Challenges

By its remaining issues, appellant generally contends that the evidence is legally insufficient to establish that a material and substantial change of circumstances has occurred since the previous judgment or to establish that a reduction of support to zero would be in the best interest of the child. See tex. Fam. Code Ann. § 156.401 (Vernon Supp.2004-05) (providing that a court may modify a child support order if the circumstances have materially and substantially changed since the date of the order’s rendition); id. § 154.122 (Vernon 2002) (providing that application of support guidelines is rebutt-ably presumed to be in the best interest of the child); id. § 154.123 (setting out factors to consider if the evidence rebuts the presumption that application of the guidelines set out in the family code is in the best interest of the child); MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex.App.-Corpus Christi 1990, writ denied) (concluding that the best interest of the child shall always be the trial court’s primary consideration in determining questions of child support). We agree.

Appellee has provided no evidence to establish a material and substantial change in any circumstances to warrant a modification of support payments to zero or that such a modification was in the best interests of the child. Appellee attached DNA test results to his motion to modify but failed to introduce the results or any other evidence at the hearing. Like our sister court in San Antonio set out in In re T.S.S., we are not free to adopt a rule that would allow an adjudicated father to be relieved of his support obligations simply by coming forward with DNA evidence post-decree that tends to exclude him as the biological father. See In re T.S.S., 61 S.W.3d at 485. Therefore, even if we were to conclude that appellee properly pursued the reduction of his support payment through a motion to modify, he has provided no evidence to support the reduction or to establish that the reduction was in the best interest of the child. It was an abuse of discretion for the trial court to modify appellee’s child support payments to zero on this basis. Appellant’s second, third, and fourth issues are sustained.

III. Conclusion

Because we have concluded that there is no legal basis for the trial court to reduce appellee’s child support payments to zero, appellee remains legally obligated to financially support the child. See tex. Fam. Code Ann. § 151.001(a) (setting out rights and duties of parent). Accordingly, we reverse the trial court’s judgment and render judgment that appellee’s motion to decrease his child support be denied.

      . We note that at the hearing on the motion to modify, appellee’s counsel informed the court that appellee "wishes to file a termination on this matter; but at this point ... he has filed a motion to modify to reduce the child support payments to zero....”

      . We also note that because appellee remains the child’s legal father, appellant cannot pursue the enforcement of child support duties against the child’s biological father.


text:
    James Lawrence WOOD, et al., Appellants, v. VICTORIA BANK & TRUST COMPANY, N.A., et al., Appellees.
    No. 13-02-624-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 18, 2005.

      Andrew M. Greenwell, Harris & Green-well, Corpus Christi, for appellants.
    Thomas Kirkendall, Kirkendall, Isgur & Foltz, The Woodlands, Louis L. Bagwell, Baker & Botts, Houston, Marshall Boykin III, Wood, Boykin & Wolter, Corpus Christi, for appellees.
    Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
   OPINION ON MOTION FOR REHEARING

Opinion on Motion for Rehearing by

Justice RODRIGUEZ.

We grant the motion for rehearing filed by appellees, Texas Commerce Bank, N.A. (TCB), Victoria Bank & Trust Company, Victoria Bankshares, Inc., and Wells Fargo Bank Texas, N.A., withdraw our opinion dated February 10, 2005, and substitute the following as the opinion of this Court.

Appellants, James Lawrence Wood, Charles Kaffie and James Barnette, brought suit against appellees alleging various statutory and common law causes of action. Appellants’ claims arose from a transaction in which TCB substituted its own subsidiary trust company as fiduciary on certain accounts and subsequently sold the subsidiary to Victoria Bankshares. After granting several motions for partial summary judgment in favor of appellees, the trial court granted a final summary judgment dismissing all claims asserted by appellants. By nine issues, appellants challenge the trial court’s rulings. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are not in dispute. In 1993, TCB purchased Ameritrust, a company which served as trustee for accounts in which appellants had an interest. After the purchase, Ameritrust was renamed Texas Commerce Trust Company and later merged into TCB. As a result of the merger, TCB became the trustee of appellants’ accounts thereby creating a fiduciary relationship with appellants.

Early in 1994, with the approval of bank regulatory authorities, TCB formed four subsidiary trust companies, including Texas Commerce Trust Company-Corpus Christi (TCTC-CC). On March 9, 1994, TCB entered into a fiduciary substitution agreement with TCTC-CC for the purpose of substituting TCTC-CC as the fiduciary for all Corpus Christi-related accounts, including appellants’ accounts. As required by statute, TCB sent notice of the proposed substitutions to designated persons, including appellants. The notice advised that account holders had ninety days to object to the proposed transfer. One beneficiary objected to the transfer of the account, and as a result that beneficiary’s account was not transferred. The remaining accounts were transferred to TCTC-CC on June 10,1994.

On March 11, 1994, TCB entered into an agreement to sell the stock of TCTC-CC to Victoria Bankshares for $8.75 million. TCB sent notice of the proposed sale to each account holder and beneficiary, including appellants, on March 28, 1994. Following regulatory approval from federal and state authorities, the stock sale was completed on June 30, 1994. In conjunction with the sale of stock to Victoria Bankshares, TCTC-CC merged with Victoria Bank & Trust, a subsidiary of Victoria Bankshares.

After the sale to Victoria Bankshares and merger with Victoria Bank & Trust, appellants filed suit claiming that the transfer and sale of fiduciary appointments by TCB was fraudulent and illegal. Appellants charged that the actions of TCB violated the law of trusts, deceptive trade practice laws, breached fiduciary duties, and constituted conversion of trust property. Appellants further argued that the Substitute Fiduciary Act did not authorize the transfer of fiduciary accounts to a subsidiary trust company for the purpose of selling that trust company to a third party.

Subsequently, the trial court granted a series of motions for partial summary judgment and a final summary judgment in favor of appellees. Appellees’ first motion for partial summary judgment was granted on November 25, 1997 with the trial court ruling that the Substitute Fiduciary Act permitted TCB to form a subsidiary trust company and transfer fiduciary accounts to that subsidiary. On July 20, 1998, the court granted appellees’ second motion for partial summary judgment finding that the statutorily required Irrevocable Undertaking filed by Texas Commerce Equity Holdings, Inc., complied with the Substitute Fiduciary Act. On May 31, 2000, the trial court granted appellees’ third motion for partial summary judgment, finding that TCB’s actions did not breach the common law fiduciary duties of loyalty, faithful administration of trust accounts, and full disclosure. On June 26, 2002, the trial court granted appellees’ fourth motion for partial summary judgment, finding that the notice provided by TCB of the proposed transfer of fiduciary accounts satisfied all the requirements of the Substitute Fiduciary Act. On October 23, 2002, the trial court granted a final summary judgment in favor of appellees, disposing of all parties and all claims in the case. Appellants challenge all summary judgments on appeal.

II. STANDARD OF REVIEW

We review de novo a trial court’s grant or denial of a traditional motion for summary judgment. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex.App.-Corpus Christi 2003, no pet.). To prevail, the moving party bears the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). In deciding whether there is a genuine issue of material fact, evidence favorable to the non-movant will be taken as true, and all reasonable inferences made and all doubts resolved in the non-movant’s favor. Am. Tobacco Co. v. Ghinnell, 951 S.W.2d 420, 425 (Tex.1997).

III. ANALYSIS

Appellants raise nine issues on appeal challenging TCB’s transfer of fiduciary accounts to TCTC-CC and the subsequent sale to Victoria Bankshares. As a threshold matter, we will address appellants’ fourth issue and determine whether, under the facts of this case, the Substitute Fiduciary Act could be utilized to transfer the fiduciary accounts to TCTC-CC.

A. Substitute Fiduciary Act

By their fourth issue, appellants argue that TCB improperly and illegally invoked the Substitute Fiduciary Act to transfer fiduciary appointments to its subsidiary because the Act only allows bank holding companies to “consolidate” their trust functions into a separate trust subsidiary. Appellants assert that the statute was used by appellees in this transaction to “de-consolidate” the fiduciary appointments from TCB to its four subsidiary trust companies, and therefore the transfer is illegal and void. In support of their argument appellants cite the language of the statute, case law interpreting the statute, and the legislative history. Appellees respond by arguing: (1) neither the language of the statute nor the legislative history prohibits a “decentralizing” transfer; (2) the language of the statute is clear and unambiguous and therefore legislative history should not be used to change the statute’s meaning; and (3) the transaction nonetheless satisfies the purpose of the statute.

The Substitute Fiduciary Act provides, in relevant part:

(a) A subsidiary trust company and one or more of its affiliated banks may enter into one or more agreements under which the subsidiary trust company is substituted as fiduciary for each affiliated bank in each fiduciary account listed in the agreement. The agreement shall be filed with the banking commissioner before the effective date of the substitution....
(g) On the effective date the subsidiary trust company succeeds to all right, title, and interest in all property that the affiliated bank holds as fiduciary, except property held for accounts for which there has been no substitution under this Act, without the necessity of any instrument of transfer or conveyance, and the subsidiary trust company shall, without the necessity of any judicial action or action by the creator of the fiduciary account, become fiduciary and perform all the duties and obligations and exercise all the powers and authority connected with or incidental to that fiduciary capacity....

Substitute Fiduciary Act, 70th Leg., R.S., ch. 207, § 2, 1987 Tex. Gen. Laws 1487, repealed by Act of May 24, 1997, 75th Leg., R.S., ch. 1008, § 6(a), 1997 Tex. Gen. Laws 3091, 3602.

This Court’s ultimate goal in construing a statute is to give effect to the legislature’s intent as expressed in the language of the statute. See Crimmins v. Lowry, 691 S.W.2d 582, 584 (Tex.1985). The Substitute Fiduciary Act does not expressly address whether consolidation is a requirement when transferring fiduciary accounts. The statute only provides that “a subsidiary trust company and one or more of its affiliated banks may enter into one or more agreements under which the subsidiary trust company is substituted as fiduciary....” From this language alone, we cannot conclude that the legislature intended to require the fiduciary substitution to result in a consolidation when utilizing the statute. To the contrary, the failure to include any language requiring consolidation indicates that the legislature did not intend such a requirement. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981) (stating that if the legislature had intended to include a restriction it could easily have done so by simply drafting the restriction into a provision of the act); Allison v. Allison, 3 S.W.3d 211, 214 (Tex.App.-Corpus Christi 1999, no pet.) (“[H]ad the Legislature intended to include visitation within the exception to Texas’s continuing jurisdiction ... it would have included the word visitation.”). Because the plain language of the Substitute Fiduciary Act does not require consolidation, we presume the legislature did not intend to include such a requirement in the Act. Therefore, we find that any transfer of fiduciary accounts between a bank and its subsidiary meeting the requirements of the statute is allowed regardless of whether the transfer results in a consolidation or de-consolidation of accounts.

Moreover, our review of case law and the Act’s legislative history reveals that neither specifically addresses whether the statute is to be used solely for the purpose of consolidating fiduciary accounts. See Bank One, N.A. v. Ameritrust Tex., N.A., 858 S.W.2d 516 (Tex.App.-Dallas 1993, writ denied); In re Estate of Touring, 775 S.W.2d 39 (Tex.App.-Houston [14th Dist.] 1989, no writ). Appellants argue that the purpose of the Act, as clearly stated in In re Touring, is to “promote efficient and cost-effective delivery of fiduciary services by allowing the placement of these services within a single corporate entity which maintains offices throughout the State of Texas.” See In re Estate of Touring, 775 S.W.2d at 42. Appellants also argue that the legislative history makes clear that the purpose of the statute is to consolidate fiduciary services. However, in reviewing the house and senate committee discussions, the driving force behind the Act appears to have been the promotion of efficient and cost-effective delivery of fiduciary services to enable the continuance of local trust services and to provide trust services to communities in which they were not economically feasible before. The centralization of fiduciary accounts into a single corporate entity, as stated in In re Estate of Touring, was simply a method by which the legislature contemplated the purpose being achieved. See id. Moreover, we have found no discussions regarding the legislature’s intent to specifically limit the transfers to consolidations only. Because we find no clear legislative intent that there be a restriction or limitation on transfers under the statute and no restriction was expressly stated in the statute, we decline appellants’ invitation to create one. See Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901, 901 (Tex.1988) (“A court may not judicially amend a statute and add words that are not implicitly contained in the language of the statute.”); Cameron, 618 S.W.2d at 540 (explaining that additional words or requirements can be inserted into a statute only when necessary to give effect to clear legislative intent).

As neither the language of the statute, case law, nor the legislative history explicitly limits the use of the Substitute Fiduciary Act for consolidation purposes only, we conclude the Act provided statutory authority for TCB to substitute TCTC-CC as fiduciary on the trust accounts. Appellants’ fourth issue is overruled.

B. Irrevocable Undertaking

In issues seven and eight, appellants argue that the irrevocable undertaking filed by Texas Commerce Equity Holdings, Inc., faded to comply with the Substitute Fiduciary Act. Section 7(a) of the Act states that “the subsidiary trust company’s owning bank holding company shall file with the banking commissioner an irrevocable undertaking to be fully responsible for the existing and future acts and omissions of its subsidiary trust company.” Substitute Fiduciary Act, 70th Leg., R.S., ch. 207, § 7, 1987 Tex. Gen. Laws 1487 (repealed 1997). Appellants assert that the undertaking was insufficient because: (1) it was limited to future acts of the trust subsidiary “for so long as the Subsidiary Trust Company is owned, directly or indirectly, by [Texas Commerce Equity Holdings, Inc.]”; and (2) Texas Commerce Equity Holdings, Inc. was not a proper legal entity to execute and file the irrevocable undertaking.

After reviewing the irrevocable undertaking filed by Texas Commerce Equity Holdings, Inc., we find that it satisfies the statutory requirements. The statute only requires that a bank holding company be fully responsible for the existing and future fiduciary acts and omissions of its subsidiary trust company. See id. An undertaking stating that the bank holding company will be responsible only for so long as the subsidiary is owned by the holding company is no less irrevocable and fulfills the obligation stated in the statute. Moreover, we find Texas Commerce Equity Holdings, Inc., to be an owning bank holding company as defined under the Bank Holding Company Act, and it is therefore an appropriate entity to file the irrevocable undertaking. Appellants’ seventh and eighth issues are overruled.

C. Constitutionality of the Act

By their ninth issue, appellants argue that the Substitute Fiduciary Act, as construed by the trial court, is unconstitutional. Appellants assert that the trial court construed the Act to allow fiduciary accounts to be transferred to a third party for consideration without notice and regardless of the contractual arrangement between the fiduciary and the settlor or beneficiaries of the trust. Appellants contend we must determine the constitutionality of the Act in light of this interpretation by the trial court. We disagree.

Appellants misinterpret the trial court’s findings regarding the scope of the Act. The trial court in this case ruled that the Substitute Fiduciary Act permitted TCB to form a subsidiary trust company and transfer fiduciary accounts to that subsidiary. The court did not construe the Act to allow fiduciary accounts to be transferred to a third party as appellant contends. The transfer of accounts to a third party, which took place in this case, was made pursuant to Texas Revised Civil Statute article 342-305, a separate statute. See Act of March 23, 1943, 48th Leg., R.S., ch. 97, subch. Ill,- art. 8, 1943 Tex. Gen. Laws 128,140, amended by Acts 1993, 73rd Leg., R.S., ch. 765, § 3, 1993 Tex. Gen. Laws 2972, 2976, and ch. 944, § 2, 1993 Tex. Gen. Laws 4043 (now codified at Tex. Fin.Code Ann. § 59.004 (Vernon Supp. 2004-2005)). Therefore, the constitutionality of the Substitute Fiduciary Act as a statute allowing the transfer of accounts to a third party need not be addressed. Appellants’ ninth issue is overruled.

D. Transfer of Fiduciary Appointments for Consideration

By their fifth issue, appellants argue that under established trust law, a trustee can never resign or transfer his office for monetary consideration, and where a trustee has transferred his fiduciary appointment in exchange for valuable consideration such transfer is void and the consideration should be disgorged and made part of the trust estate. See Sugden v. Crossland, 3 Sm. & Gif. 192, 65 Eng. Rep. 620 (1856); Rosenfeld v. Black, 445 F.2d 1337 (2d. Cir.1971); Field v. Western Life Indemnity Co., 166 F. 607, 610 (N.D.Ill.1908); Lednum v. Dallas Trust & Savings Bank, 192 S.W. 1127, 1128 (Tex.Civ.App.-Dallas 1917, writ ref'd).

Appellees contend that the authorities relied on by appellants are outdated and do not take into account the'evolution of the law relating to corporate fiduciaries. Moreover, appellees argue that none of the cases cited involved statutes authorizing a transfer of fiduciary appointments in exchange for consideration. We agree.

In this case, the transfer of fiduciary appointments upon the sale and merger of TCTC-CC into Victoria Bank & Trust was made pursuant to Texas Revised Civil Statute article 342-305 which provides:

[I]f any merging institution shall at the time of the merger be acting as trustee, guardian, executor, administrator, or in any other fiduciary capacity, the resulting bank shall, without the necessity of any judicial action or action by the creator of such trust, continue such office, trust or fiduciary relationship and shall perform all of the duties and obligations and exercise all of the powers and authority connected with or incidental to such fiduciary relationship in the same manner as though the resulting bank had been originally named or designated as such fiduciary.

Act of March 23, 1948, 48th Leg., R.S., ch. 97, subch. Ill, art. 8, 1943 Tex. Gen. Laws 128,140 (amended 1993). Article 342-305 expressly authorized Victoria Bank & Trust, after the merger, to succeed to any fiduciary offices held by TCTC-CC. As a result, the fiduciary appointments were effectively transferred during the merger; a merger which resulted from the exchange of consideration for the stock of TCTC-CC. See id. It is this transfer which appellants argue violates the common law prohibition against the sale of a fiduciary office for profit. However, reading the statute in the context in which it was applied indicates that the legislature contemplated and implicitly acknowledged that a bank would receive consideration in exchange, in part, for the transfer of fiduciary appointments. See id. To this extent, the statute can be interpreted as allowing the transfer of a fiduciary office in exchange for consideration. See id. Accordingly, we find under the facts of this case that the common law was modified by statute, article 342-305, to permit the transfer of fiduciary appointments for consideration. Appellants’ fifth issue is overruled.

E. Breach of Fiduciary Duty

By their first, second and sixth issues, appellants argue that the fiduciary appointments held by TCB were subject to fiduciary duties which were breached. Specifically, appellants assert that by transferring the fiduciary accounts to its subsidiary and then selling the subsidiary to a third party, TCB breached the common law fiduciary duties of loyalty, which included refraining from self-dealing, faithful administration of trust accounts, and the duty of full disclosure.

Appellees do not dispute that the fiduciary appointments held by TCB were subject to fiduciary duties. They argue, however, that no duties were breached as a matter of law because TCB accomplished the substitution and sale of the fiduciary accounts by utilizing statutes which authorized these transactions. Appellees cite to the Substitute Fiduciary Act as authorizing the transfer of accounts to TCTC-CC and refer to Texas Revised Civil Statute article 342-305 as authorizing the sale of TCTC-CC.

We agree that the Substitute Fiduciary Act authorized the transfer of accounts to TCTC-CC, as discussed earlier. See Substitute Fiduciary Act, 70th Leg., R.S., ch. 207, § 2, 1987 Tex. Gen. Laws 1487 (repealed 1997). We also agree that article 342-305 provides for the automatic transfer of fiduciary appointments upon the successful merger of two institutions. See Act of March 23, 1943, 48th Leg., R.S., ch. 97, subch. Ill, art. 8, 1943 Tex. Gen. Laws 128,140 (amended 1993). Prior to the enactment of these two statutes, under state law the appointment of a successor trustee could take place only by court order or pursuant to the instrument creating the fiduciary relationship. See Tex. PROp.Code Ann. § 113.083(a) (Vernon 1995). However, the Legislature enacted these statutes to expressly permit the transfer of accounts “without the necessity of any judicial action or action by the creator” of the fiduciary account. To find that utilizing these statutes to transfer the accounts still allowed for a breach of common law fiduciary duties would render the statutes meaningless. Therefore, we conclude that by transferring the accounts pursuant to statute, no duties were breached as a matter of law.

Accordingly, appellants’ first, second and sixth issues are overruled.

F. Appellants’ Remaining Claims

By their third issue, appellants challenge the trial court’s final summary judgment which disposed of appellants’ negligence, fraud, DTPA, conversion and civil conspiracy claims against appellees. However, appellants’ brief contains no argument supported by citations to authority and the record as to why the trial court erred in dismissing these claims. Therefore, appellants have waived any error regarding this issue. See Tex.R.App. P. 38.1(h); Columbia Rio Grande Reg’l Hosp. v. Stover, 17 S.W.3d 387, 392 (Tex.App.-Corpus Christi 2000, no pet.) (stating that issues not supported by argument and authority are deemed waived). Appellants’ third issue is overruled.

IV. CONCLUSION

Having overruled appellants’ issues on appeal, we affirm the judgment of the trial court.

      . Texas Commerce Bank is now JP Morgan Chase Bank but will be referred to as TCB for purposes of this opinion.

      . The four subsidiary trust companies formed by TCB were Texas Commerce Trust Company-Corpus Christi, Texas Commerce Trust Company-Sherman, Texas Commerce Trust Company-Waco, and Texas Commerce Trust Company-Wichita Falls. Only Texas Commerce Trust Company-Corpus Christi is a party to this lawsuit.

      . The substitution agreement was entered into pursuant to article 548h of the Texas Revised Civil Statutes. See Substitute Fiduciary Act, 70th Leg., R.S., ch. 207, § 2, 1987 Tex. Gen. Laws 1487, repealed by Act of May 24, 1997, 75th Leg., R.S., ch. 1008, § 6(a), 1997 Tex. Gen. Laws 3091, 3602 (now codified at Tex. Fin.Code Ann. §§ 274.001-.203 (Vernon Supp. 2004-2005)). We will refer to this statute as the Substitute Fiduciary Act or the Act.

      . Appellees state in their brief that the $8.75 million sales price was the approximate amount TCB paid for the same accounts a few months earlier. This price was based on the multiple of three times the revenue stream produced by the fiduciary fees.

      . TCTC-CC merged into Victoria Bank & Trust pursuant to Texas Revised Civil Statute article 342-305. Act of March 23, 1943, 48th Leg., R.S., ch. 97, subch. Ill, art. 8, 1943 Tex. Gen. Laws 128,140, amended by Acts 1993, 73rd Leg., R.S., ch. 765, § 3, 1993 Tex. Gen. Laws 2972, 2976, and ch. 944, § 2, 1993 Tex. Gen. Laws 4043 (now codified at Tex. Fin. Code Ann. § 59.004 (Vernon Supp.2004-2005)).

      . Texas Commerce Equity Holdings, Inc., owned 100% of the stock of TCB.

      . The Substitute Fiduciary Act incorporates the definition of "bank holding company” stated in the Bank Holding Company Act. See 12 U.S.C.A. § 1841(a) (2001). A bank holding company is defined as any company which has control over any bank or over any company that is or becomes a bank holding company. See id. ' Because Texas Commerce Equity Holdings, Inc. owned all of TCB’s stock, it was a bank holding company.

      . We note that the Trust Company Act, enacted in 1997, expressly allows all of the assets of a trust institution, including the right to control accounts established with the trust institution, to be purchased. Tex. Fin.Code Ann. § 182.401 (Vernon Supp.2004-2005). The purchaser succeeds by operation of law to all of the rights, privileges, and obligations of the selling trust institution under each account included in the assets acquired. Id.


author: Justice CARTER.

text:
    In the Matter of the MARRIAGE OF Louis LENDMAN and Amalia Lendman, and In the Interest of Elizabeth Diane Lendman and John Dodson Teeter Lendman, Children.
    No. 06-05-00043-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted July 6, 2005.
    Decided Aug. 18, 2005.

      Bobby D. Myers, Biery, Biery, Myers & Armstrong, PC, San Antonio, for appellant.

      Jeff D. Small, Law Office of Jeff Small, R. Carlo Garda, Oliva, Saks & Garcia, LLP, San Antonio, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Factual and Procedural Background

Louis and Amalia Lendman were divorced August 3, 2000. The parties agreed to the judgment both as to form and substance. The divorce judgment ordered Louis to pay Amalia both child support and spousal maintenance. The child support was to be paid for two children so long as they were enrolled in college courses leading to a degree, until they reached the age of twenty-two. The maintenance was payable to Amalia until certain conditions occurred or until eight years elapsed from the date of the divorce. The divorce judgment was amended by agreement April 22, 2002, raising the child support payment and changing portions of the maintenance order.

On August 9, 2004, Louis filed a motion to modify the maintenance order and a separate motion to modify child support. In each of these motions, Louis alleged that the orders in the judgment of August 3, 2000, were contrary to law and that the court had exceeded its statutory authorization in entering the orders. He also alleged that the circumstances had materially and substantially changed since the rendition of the orders. In the prayer, he urged the court to terminate the child support and maintenance orders in the divorce judgment.

Amalia responded to these motions by filing a motion to dismiss for lack of jurisdiction and a general denial. Amalia pled that Louis’ allegations that the order was contrary to law could only be presented by a bill of review. Since more than four years had elapsed since the entry of the divorce judgment, Amalia urged that such an attack on the judgment was barred by the applicable statute of limitations. See Tex. Civ. Peac. & Rem.Code Ann. § 16.051 (Vernon 1997).

The trial court granted Amalia’s motion to dismiss for lack of jurisdiction after finding the provisions in the divorce judgment concerning child support and maintenance were voidable, not void, and further finding the time to challenge the order had expired. The court then considered Louis’ motion to modify child support and maintenance on the basis of a substantial change in circumstances and denied the motion.

Issues

Louis appeals on two issues: 1) the trial court erred in finding that it lacked jurisdiction on the ground that the time had expired to file a bill of review, and 2) the evidence conclusively proves that Amalia was not eligible for court-ordered maintenance and the overwhelming weight and preponderance of the evidence shows that she is not eligible for court-ordered maintenance due to a change of circumstances.

Standard of Review

In reviewing the grant or denial of a bill of review, every presumption is indulged in favor of the court’s ruling, which will not be disturbed unless it is affirmatively shown that there was an abuse of judicial discretion. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (citing Interaction, Inc./State v. State/Interaction, Inc., 17 S.W.3d 775, 778 (Tex.App.-Austin 2000, pet. denied)); Harris v. Elm Oil Co., 183 S.W.2d 216, 218 (Tex.Civ.App.-Texarkana 1944, writ ref'd w.r.m.). The trial court may be reversed for abusing its discretion only if it has acted in an unreasonable or arbitrary manner, or without reference to any guiding rules and principles. Nguyen, 93 S.W.3d at 293.

Issue 1: Did the trial court err in finding that it lacked jurisdiction on the ground that the time had expired to file a bill of review?

A glaring omission occurred in this ease. No pleading or argument was presented to the trial court that the divorce judgment of August 2000 had been modified regarding child support and maintenance by an order dated April 2002 and that the challenge was to the 2002 order, which was within the four-year limitations period. Amalia’s argument to the trial court was that, since the divorce judgment was entered August 3, 2000, and the bill of review/motion to modify was filed August 9, 2004, it was barred by the four-year statute of limitations. The residual four-year statute of limitations applies to bills of review. Tex. Crv. PRAc. & Rem.Code Ann. § 16.051; Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.1998). Louis argued the trial court had jurisdiction regardless of the time elapsed because the divorce judgment was void and unauthorized by law. Louis argued that, even though the parties entered an agreed judgment, that judgment did not constitute a contract. Therefore, Louis argued that the provisions requiring child support for a time period exceeding the statutory authorization was simply a judgment of the court (not a contract) and was void. Likewise, Louis argued to the trial court that the maintenance order requiring payments of up to eight years exceeded the statutory authorization of three years and was a void order.

Amalia, on the other hand, argued that Louis was incorrect — the orders were not void, but at most, voidable, citing to the trial court the case of Mapco, Inc. v. Forrest, 795 S.W.2d 700 (Tex.1990). That being the case, the suit to set it aside must be presented within the four-year period, or it is barred. The trial court agreed with this argument and ruled that the time to challenge the divorce judgment had expired and that it had no jurisdiction to alter or change the judgment.

Everyone overlooked, or did not appreciate the importance of, the modification of the judgment that was entered in 2002.

Amalia now argues to this Court that Louis abandoned his trial court allegation and has waived his complaint. It is true that Louis now concedes that the August 3, 2000, divorce judgment was only a voidable order, and not void. Louis now argues that the limitations period had not expired for filing the bill of review because the relevant order is dated April 22, 2002, within two years of his filing the motions. The question is whether Louis has waived the issue by failing to present it to the trial court.

If an issue is not raised at the trial court level, it will not be addressed on appeal. See Tex.R.App. P. 33.1. If a party fails to object and bring error to a trial court’s attention, error is not preserved, and the complaint is waived. Hardeman v. Judge, 931 S.W.2d 716, 720 (Tex.App.Fort Worth 1996, writ denied) (citing Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (op. on reh’g)). Examples of cases in which it has been held that no error is presented when the issue is raised for the first time on appeal include: E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363, 364 (Tex.1987) (argument that the DTPA is inapplicable to securities transactions was never presented to the trial court and therefore waived); Robertson County v. Wymola, 17 S.W.3d 334, 344 (Tex.App.Austin 2000, pet. denied) (county’s claim to be immune from post-judgment interest not raised at the trial court level may not be raised for the first time on appeal); Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 332 (Tex.App.Fort Worth 1998, writ denied) (defense of good-faith reliance on counsel was not pled, so it was waived); Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 523 (Tex.App.-San Antonio 1996, writ denied) (defense of justification was never pled or raised by the evidence, and no instruction was requested in the court’s charge); Swofford v. Tri-State Chemicals, Inc., 764 S.W.2d 24 (Tex.App.-El Paso 1989, writ denied) (failure of consideration was not pled- — -no error is presented when it is raised for the first time on appeal).

Likewise, a party may not enlarge a ground of error on appeal to include an objection not asserted at trial. Commonwealth Lloyd’s Ins. Co. v. Thomas, 825 S.W.2d 135, 147 (Tex.App.-Dallas 1992), pet. granted, judgm’t vacated w.r.m., 843 S.W.2d 486 (Tex.1993) (an objection at trial that the evidence was legally and factually insufficient to support the jury’s award of damages for expert witness fees is not the same complaint as presented on appeal that there is no legal justification for recovery of the damages-error waived); Powell v. Powell, 604 S.W.2d 491, 493 (Tex.Civ.App.-Dallas 1980, no writ) (“[t]he orderly administration of justice requires that issues and objections be raised in the trial court so that justice may be done there rather than to permit a litigant to wait until after the trial court has acted adversely and then complain for the first time on appeal”) (citing Nat’l Lloyds Ins. Co. v. McCasland, 566 S.W.2d 565, 568-69 (Tex.1978); State of Ca. Dep’t of Mental Hygiene v. Bank of the Southwest Nat’l Ass’n, 163 Tex. 314, 354 S.W.2d 576, 581 (1962); Slaughter Inv. Co. v. Cooper, 597 S.W.2d 455, 457 (Tex.Civ.App.-Dallas 1980, no writ)).

Based on the foregoing, we find it is necessary to present to the trial court the particular issue to preserve it for appeal. It is improper to present a new issue on appeal or to expand on the issue that was presented to the trial court. Reason and common sense underlie this requirement. If the matter is not presented to the trial court, the trial court has no opportunity to rule on the issue or to correct its ruling if it is made in error. See Lewis v. Tex. Employers Ins. Ass’n, 151 Tex. 95, 246 S.W.2d 599, 600 (1952). Likewise, to preserve the issue for complaint on appeal, one should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his or her opponent on appeal by stating the complaint for the first time. See Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982).

The issue that was presented to the trial court was whether the four-year statute of limitations prevented the court from altering or setting aside the divorce judgment of 2000. The arguments that the parties presented to the trial court have been summarized previously. The trial court was never asked to consider or act on the issue of whether the 2002 modification to the divorce judgment was the applicable document and therefore was within the four-year statute of limitations. We believe that it would be improper to now conclude the trial court erred and should have considered the April 2002 modification in determining if the four-year statute of limitations applied. That issue was not presented to the trial court and therefore is not properly before this Court. We hold that the trial court did not err in determining that it lacked jurisdiction and that the attack on the August 2000 divorce judgment was precluded by the four-year statute of limitations.

Issue 2: Did the evidence conclusively prove that Amalia was not eligible for court-ordered maintenance? Did the overwhelming weight and preponderance of the evidence show that Amalia was not eligible for court-ordered maintenance due to a change of circumstances?

Louis’ pleadings also alleged that a material and substantial change in circumstances of the parties had occurred and requested the trial court to discontinue the maintenance order.

This Court has previously held that an order for spousal maintenance is similar to an award of child support, where the standard of review is an abuse of discretion and, therefore, it is the proper standard for spousal maintenance as well. In making an abuse of discretion review in a child support context, the factual and legal sufficiency of the evidence are part of the abuse of discretion review and are not independent grounds for reversal. In re Marriage of Hale, 975 S.W.2d 694, 697 (Tex.App.-Texarkana 1998, no pet.) (citing In re Marriage of Driver, 895 S.W.2d 875, 877 (Tex.App.-Texarkana 1995, no writ)).

The continuation of spousal maintenance is subject to a motion to modify on a showing of a material change of circumstances of either party affected by the maintenance order. Tex. Fam.Code Ann. § 8.057 (Vernon Supp.2004-2005).

In analogous situations involving child support, the trial court must compare the financial circumstances of the parties at the time of the existing support order with their circumstances at the time the modification is sought. London v. London, 94 S.W.3d 139, 144 (Tex.App.Houston [14th Dist.] 2002, no pet.). Without both sets of data, the court has nothing to compare and cannot determine whether a material and substantial change has occurred. If no changes have occurred, the trial court abuses its discretion if it modifies. See Werlein v. Werlein, 652 S.W.2d 538, 540 (Tex.App.-Houston [1st Dist.] 1983, no writ). Likewise, we believe that the same analysis is proper concerning spousal maintenance orders. The evidence presented to the trial court consisted of testimony from Amalia that she was employed by the City of San Antonio earning approximately $32,000.00 a year, and she received $524.00 a month from retirement benefits. She also received a lump sum payment of $23,700.00 from the retirement plan. She further stated that she was unable to support herself on that amount. The testimony from Louis was that he was currently earning $10,000.00 a month and also receiving $790.00 a month from retirement benefits.

The record shows the present financial status of both parties, but does not demonstrate how it has changed since the divorce or the modification. The retirement benefit that Amalia received was as a result of the divorce judgment, which authorized her to receive one half of Louis’ retirement benefits as a just and right division of the parties’ marital estate. Without financial data to compare the present circumstances of the parties with their financial circumstances at the time of the entry of the maintenance order, there can be no showing of a substantial change.

The trial court did not abuse its discretion in denying the motion to terminate the spousal maintenance.

For the foregoing reasons, we affirm the judgment of the trial court.

      . The pleadings do not indicate that Louis’ motions were filed as bills of review. The motions were entitled motions to modify and were filed in the original divorce case. The prayers asked that the maintenance be terminated and that the child support order be amended to conform to Section 154 of the Texas Family Code. See Tex. Fam.Code Ann. §§ 154.001-.309 (Vernon 2002 & Supp.2004-2005). However, both parties and the trial court treated the motions as both a bill of review and a motion to modify. The trial court entered an order granting Amalia’s motion to dismiss for lack of jurisdiction and denying Louis' motion to modify the child support and maintenance provisions of the divorce judgment. Amalia has not argued at trial or on appeal that Louis did not present a bill of review; therefore, we will address the issue as a bill of review allegation.

      . The issue was mentioned at the hearing by Amalia’s lawyer. ("[Tjhey even agreed after that in an order modifying, even after that they agreed a second time, okay, to increase child support with the exact same terms, interestingly enough. In April of '02, there should be an agreed order to modify.")

      . Merely stating that a document has been filed is an insufficient basis from which to reasonably infer that the trial court had notice of something and the need to act on it. The trial court cannot be faulted if it was never aware of the need to act. See In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001, no pet.).


author: Justice MORRIS.

text:
    Harold Ray LEWIS, Appellant, v. Jack FOXWORTH, Attorney-In-Fact for Walter L. Foxworth and Warren H. Foxworth, Appellee.
    No. 05-04-01048-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 19, 2005.

      David R. Weiner, Glast, Phillips & Murray, Dallas, for Appellant.
    Blake L. Beckham, Beckham & Thomas, L.L.P., Daylen K. Gallman, Stewart H. Thomas, Tom M. Dees III, Thomas <& Dees, PLL, Dallas, for Appellee.
    Before Justices MORRIS, LANG, and MAZZANT.
   OPINION

Opinion by

Justice MORRIS.

This is an appeal from a jury verdict awarding Jack Foxworth, as attorney-in-fact for Walter L. Foxworth and Warren H. Foxworth, damages for breach of a contract for the sale of real estate. Harold Ray Lewis contends the trial court erred in granting judgment against him because the evidence shows he was excused from performing under the contract. The Foxworths respond that Lewis’s performance was not excused and his failure to close the sale was a breach of the contract entitling them to recover $50,000 in earnest money on deposit with the title company. We conclude the evidence is sufficient to show that Lewis’s performance under the contract was not excused. We affirm the trial court’s judgment.

I.

In November 2002, Walter and Warren Foxworth as sellers, and Harold Ray Lewis as buyer, executed a contract for the sale of approximately 450 acres of land in Grayson County, Texas. Under the contract, Lewis agreed to pay the Foxworths $1,675,000 in cash for the property. Lewis further agreed to deposit $50,000 in earnest money in an interest bearing escrow account with the title company. In return, the Foxworths agreed to deliver possession of the property to Lewis upon closing. The sale of the property was scheduled to close on January 15, 2003. The contract specified that, in the event Lewis failed to close the sale, the Foxworths were entitled to the earnest money on deposit with the title company as their sole remedy.

In addition to setting forth the payment and delivery obligations, the contract also contained a section entitled “Special Provisions.” Under the Special Provisions section, the contract stated:

Both Seller and Purchaser agree that there are items of Personal Property which will be removed from the Property and that all fixtures which are attached to the Property will remain with the Property, said fixtures including, but not limited to fences, working pens, gates, chutes, water well fixtures, and tanks.

It is undisputed that the Foxworths removed personal items from the property before the sale was due to close. As of the date of the scheduled closing, however, some personal property remained on the land. Lewis did not close the sale on January 15 as required by the contract.

On January 17, 2003, two days after the closing was supposed to occur, the Fox-worths sent Lewis a letter stating they were willing to extend the time for closing to 3:00 p.m. on January 21, 2003. The Foxworths also informed Lewis that if he failed to tender the remaining funds by that time, they would exercise their right to recover the earnest money and terminate the agreement.

Lewis did not tender the money on January 21 and the Foxworths informed Lewis by letter dated January 22 that they were terminating the agreement. When the Foxworths attempted to recover the earnest money from the title company, the title company refused to turn over the funds without a signed release from Lewis. The Foxworths sent two requests to Lewis asking him to sign the necessary release but received no reply. The Foxworths then brought this suit alleging breach of contract and seeking recovery of the $50,000 earnest money as damages pursuant to the terms of the contract.

In response to the Foxworths’ claim for breach of contract, Lewis asserted various affirmative defenses including excuse, failure of conditions precedent, anticipatory breach, and failure of consideration. All of the affirmative defenses were based upon Lewis’s assertion that the Foxworths failed to remove their personal items from the property before the closing date as required under the contract. The Fox-worths moved for summary judgment arguing that Lewis’s affirmative defenses were without merit and they were entitled to the earnest money as a matter of law. The trial court declined to grant the Fox-worths’ summary judgment on their breach of contract claim but granted them a partial summary judgment on Lewis’s affirmative defenses of failure of conditions precedent and failure of consideration. Lewis does not challenge on appeal the trial court’s decision to grant summary judgment on those defenses.

The breach of contract claim against Lewis was tried to a jury. The jury charge asked the jury to determine whether Lewis failed to comply with his agreement to purchase the land and whether that failure was excused. The charge instructed the jury that Lewis’s failure to comply would be excused if, before Lewis was required to perform, the Foxworths either failed to comply with a material obligation of the contract or repudiated the contract. The charge defined “repudiation” as an indication by a party to the contract, either by his words or actions, that he is not going to fulfill his obligations under the contract in the future “showing a fixed intention to abandon, renounce, and refuse to perform the agreement.” The jury found that Lewis failed to comply with the contract and his failure was not excused.

Lewis moved for a judgment notwithstanding the verdict. The trial court denied the motion and granted judgment in favor of the Foxworths, awarding them the $50,000 earnest money as well as attorney’s fees. Lewis then filed a motion for new trial arguing the evidence was insufficient to support the jury’s finding that his failure to comply with the contract was not excused. The trial court denied the motion for new trial. This appeal ensued.

II.

In his sole point of error, Lewis contends the evidence is legally and factually insufficient to support the jury’s finding that he was not excused from complying with his contractual obligation to purchase the Foxworths’ property. Lewis argues the evidence conclusively shows the Foxworths failed to comply with the “Special Provisions” section of the contract requiring them to remove their personal items from the property and that their failure excused his performance under the contract. We disagree.

When a party challenges the legal sufficiency of the evidence supporting an adverse finding on an issue on which he bore the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). In reviewing the legal sufficiency of the evidence, we view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005). When a party challenges the factual sufficiency of the evidence supporting an adverse finding on which he bore the burden of proof, he must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. See Francis, 46 S.W.3d at 242. In conducting a factual sufficiency review, we consider all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986)(per curiam).

At trial, the Foxworths testified they removed the personal items they wanted from the property several days before the sale to Lewis was scheduled to close. Lewis does not dispute the Foxworths removed some of them personal items from the property. It is Lewis’s contention, however, that the contract required the Foxworths to remove all their personal property from the land before the sale closed and their failure to do so was either a material breach or a repudiation of the contract. Lewis’s argument contradicts the plain language of the contract.

In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument. See Stroop v. Northern County Mut. Ins. Co., 133 S.W.3d 844, 851 (Tex.App.-Dallas 2004, pet. denied). The parties’ intent must be taken from the contract itself, not from the parties’ present interpretation, and the contract must be enforced as it is written. See Nicol v. Gonzales, 127 S.W.3d 390, 394 (Tex.App.-Dallas 2004, no pet.). We may neither rewrite the contract nor add to its language. See American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 162 (Tex.2003).

The contract at issue states that “[b]oth Seller and Purchaser agree that there are items of Personal Property which will be removed from the Property....” The evidence presented at trial clearly shows that items of personal property were removed from the property and, therefore, the requirements of the provision were met. For the contract to require the Foxworths to remove all personal items from the property before the property was transferred to Lewis, the contract would have to be rewritten to state that “both Seller and Purchaser agree that all items of Personal Property will be removed from the Property by the Seller before closing.” The contract language is clearly not as expansive as Lewis would have us read it. Lewis agreed to the terms and provisions of the contract as it was written, and we cannot now change those provisions simply because Lewis believes something more was needed. See Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 407 (Tex.App.-Amarillo 2003, pet. denied).

Lewis urges us to construe the contract strictly against the Foxworths because they were the drafters of the agreement. But the doctrine of contra profer-entem is applied only when construing an ambiguous contract. See Evergreen Nat. Indem. Co. v. Tan It All, Inc., 111 S.W.3d 669, 675 (Tex.App.-Austin 2003, no pet.); GTE Mobilnet of S. Tex. Ltd. P’ship v. Telcell Cellular, Inc., 955 S.W.2d 286, 290 (Tex.App.-Houston [1st Dist.] 1997, writ denied). At no point have the parties urged, nor did the trial court find, that the contract at issue was ambiguous. Lewis, in fact, strenuously argues on appeal that the contract is unambiguous. The plain language of the contract provides for the removal of personal items from the property, and the evidence shows unequivocally that this was done. Accordingly, the evidence is both legally and factually sufficient to support the jury’s finding that Lewis had no excuse for his failure to close on the sale.

Even if the evidence did not support a finding that the requirements of the special provision were met, the evidence is both legally and factually sufficient to support the jury’s finding that any failure by the Foxworths to remove all personal items from the property was neither a material breach nor a repudiation of the contract excusing Lewis from performing under the agreement. The evidence shows that Lewis never contacted the Foxworths before either of the scheduled closings to communicate his dissatisfaction with the condition of the property. Furthermore, the Foxworths presented evidence that Lewis made an agreement with the foreman of the property allowing the foreman to keep some personal property on the land. Although the jury charge did not define the term “material obligation,” the jury could have concluded from the above evidence that any obligation the Fox-worths may have had to remove personal items from the property was not a material obligation of the contract.

In addition, the Foxworths clearly demonstrated their desire to go forward with the sale when they informed Lewis by letter of then willingness to extend the date of the closing to give Lewis another opportunity to perform. Accordingly, the Foxworths did not demonstrate, either by their words or their actions, an intention to abandon, renounce, or refuse to perform the agreement. Absent either a breach of a material obligation or a repudiation of the agreement, Lewis had no excuse for his failure to comply with the terms of the agreement.

Based on the foregoing, we conclude the evidence is legally and factually sufficient to support the jury’s finding. We resolve Lewis’s sole issue against him. We affirm the trial court’s judgment.