In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-25-00013-CV
GAIL FRIEDMAN, JESSE SHOOTER,
AND RACHEL TAMURA, Appellants
V.
ADRIENNE MURPHREY, INDEPENDENT EXECUTRIX
OF THE ESTATE OF LOIS SHERBERT SHOOTER, Appellee
On Appeal from the Probate Court No. 1
Montgomery County, Texas
Trial Cause No. 23-33580
MEMORANDUM OPINION
This appeal involves a dispute about the disposition of a particular investment
account under Lois Sherbert Shooter’s (hereinafter “Lois”) Last Will (“Lois’s Will
or “the Will”) (admitted to probate on September 29, 2023). More specifically,
Appellants, Gail Friedman, Jesse Shooter, and Rachel Tamura (collectively
“Appellants” or “Plaintiffs” or singularly “Gail,” “Jesse,” and “Rachel”), contend
that the trial court erred when, after a bench trial, it declared that the investment
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account passed pursuant to the Residuary Clause in Lois’s Will rather than to them
under Article II. B. - Specific Gift provision in Lois’s Will. In one issue, Appellants
contend that there is legally and factually insufficient evidence to support the trial
court’s judgment. For reasons explained herein, we affirm.
Factual and Procedural Background
Original Petition
After the Will was admitted to probate, Gail Friedman, Jesse Shooter, and
Rachel Tamura filed an Original Petition against Adrienne Murphrey (hereinafter
“Adrienne” or “Appellee”), Independent Executrix of the Estate of Lois Sherbert
Shooter, seeking a declaratory judgment regarding the disposition of Lois’s
Investment Account, which they alleged would impact in excess of one million
dollars of the estate. According to the Petition, after marrying Lois, John Josiah
Shooter (hereinafter “Josiah”) included Lois on his investment account and his sonin-law, Steve Friedman (hereinafter “Steve”), and later Josiah’s grandson Jeremy
Shooter (hereinafter “Jeremy”), managed the investment account. Plaintiffs alleged
that at the time of Josiah’s death in 2014, the account was under the management of
Steve and Jeremy at Wells Fargo. In 2017, Steve and Jeremy moved to Raymond
James, which they contend prompted Lois to transfer the account to Raymond James.
In early 2022, Plaintiffs allege the account followed them again to Silverleaf Wealth
Management. They further allege that on November 7, 2018, Lois executed a will
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with two bequests: personal items to her residuary beneficiaries and a financial
account to named beneficiaries or, if they predeceased Lois, to their descendants.
The investment account was identified in the Will as Raymond James account
****M386, and in her Will, Lois had a specific bequeath of the account equally to
Gail Friedman, John Jay Shooter, and Bill R. Sherbert, or, if they predeceased her,
to their descendants, per stirpes.
Plaintiffs allege that Gail Friedman and John Jay Shooter were Josiah’s
children, and Bill R. Sherbert was Lois’s brother. On February 10, 2022, Lois
transferred the Raymond James Account to Silverleaf Wealth Management, after
Steve and Jeremy left Raymond James to go to work for Silverleaf Wealth
Management. Lois executed an “Account Transfer” form, moving Account
****M386 to the custody of LPL Financial (“LPL”), which Plaintiffs allege provides
back-office and securities holding services for Silverleaf Wealth Management. The
transfer was an “In Kind” transfer, moving all assets from Raymond James to LPL.
The Plaintiffs allege that the Raymond James account was not “adeemed” and the
specific bequest in II. B. of Lois’s Will controls the LPL account because the subject
matter of that specific bequest did not change, and it only underwent an
administrative change in brokerage. In the Petition, the Plaintiffs alleged that Lois’s
Will clearly articulated that the Account assets should pass directly under II. B. of
the Will.
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Answer & Counterclaim
The Executrix of the Estate filed an Answer and Counterclaim, denying the
allegations made by the Plaintiffs and seeking a declaratory judgment from the trial
court that declared the LPL Financial Silverleaf Wealth Management Account
****2922 passes pursuant to the Residue clause in Article III of the Last Will and
Testament of Lois Sherbert Shooter.
Bench Trial
The parties agreed to have the case tried to the Court and for an expedited trial
setting. The bench trial was held on October 21, 2024. The defense agreed to
Plaintiffs’ exhibits 1-6, and 16, which were preadmitted. The Plaintiffs also agreed
to the admission of defense exhibits 1-14 which were preadmitted.
After opening statements, the Plaintiffs called Steve Friedman and Jeremy
Friedman as fact witnesses, and James Michael Young to testify about attorney’s
fees incurred by the Plaintiffs. The defense called two witnesses, James Stilwell and
John Dagley, who testified about attorney’s fees incurred by the defendant.
The parties stipulated that Lois died on June 13, 2023, at the age of 87. Lois’s
Will is dated November 7, 2018, and it was admitted to probate on September 29,
2023. Lois had no children of her own, but her husband, Josiah, had two children
(Gail Friedman and John Jay Shooter) at the time Lois and Josiah married. Gail (one
of the plaintiffs) is married to Steve Friedman, and they have a son, Jeremy
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Friedman. Lois had a brother named Bill Sherbert, who predeceased Lois, and he
had several daughters, who are Lois’s nieces, including Appellee Adrienne
Murphrey, the Executor of Lois’s Will. The residuary beneficiaries under the Will
are Lois’s nieces, the daughters of her brother Bill Sherbert. John Jay Shooter,
Josiah’s son, died in 2021 and predeceased Lois, and his descendants are Jesse
Shooter (hereinafter “Jesse”) and Rachel Tamura (hereinafter “Rachel”) (two of the
three plaintiffs).
According to the testimony provided by Steve, Josiah died in 2014, but before
his death, he and Lois jointly owned an investment account that Josiah’s son-in-law
Steve and grandson Jeremy managed. Initially the investment account was with
Wells Fargo when Steve and Jeremy worked for Wells Fargo. In 2017, Lois moved
the investment account and her IRA account to Raymond James, when Steve and
her grandson Jeremy left Wells Fargo and began working for Raymond James
Investments. The Raymond James’s account was identified as having an account
number of “196WM386” for “the Investment Account.”1 In January of 2022, Steve
and Jeremy left Raymond James and began working with Silverleaf and LPL.
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According to account statements in the record, the Raymond James
Investment Account value included stocks and cash in excess of two million dollars as of January of 2022, and Lois’s IRA account had a value over $350,000.
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In January of 2022, Lois opened a TOD Account at LPL styled as the “Lois
TOD Account ****2922” (LPL Lois TOD Account). On February 10, 2022, Lois
signed a “Transfer on Death Account Agreement – Non-Retirement” for the LPL
Lois TOD Account. In the Transfer on Death Account Agreement – NonRetirement, Lois named her brother, Bill Sherbert, as the sole beneficiary to whom
the LPL Lois TOD Account should be payable at her death. On February 10, 2022,
Lois signed an Account Transfer authorization for the transfer of the assets from the
Raymond James Account ****M386 into the LPL Lois TOD Account ****2922. In
February and March 2022, the assets in the Raymond James Account were
transferred to the LPL Lois TOD Account “in kind.” The monthly statements that
Lois received from LPL identified the LPL Lois TOD Account as “Lois TOD” in
the upper right-hand corner and as a “TOD ACCOUNT” in the address block. The
account manager of the LPL Lois TOD Account is listed on the statements as
“Jeremy Friedman” (Lois’s step-grandson). Additionally, when Lois set up her
“TOD Account” at LPL, she received a letter dated January 27, 2022 from LPL Chief
Customer Care Officer & Managing Director discussing Lois’s investment account
and a summary of the account information, again confirming it was a TOD account,
showing Lois S. Shooter as the primary owner and the TOD Beneficiary as “Bill
Sherbert.”
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The parties agree that the assets in the Raymond James’s account were
transferred “in-kind” by Lois to the LPL account, which is also identified in
Plaintiffs’ Exhibits 1, 3, and 6 and is called the “Lois Shooter TOD account ending
in 2922.”
Steve testified that he is a financial advisor for Silverleaf Wealth
Management, and he lives in Omaha, Nebraska. He has been married to Gail for 49
years. Steve’s son Jeremy has worked with Steve since 2010 or 2011, and Jeremy
also works at Silverleaf. According to Steve, Lois had no children, and she was
married to his father-in-law, Josiah, who had two children, Gail (Steve’s wife) and
John Jay Shooter. Josiah was a landscaping contractor. He and his twin brother
started their business in Nebraska, then moved to California, and they were very
successful, financially. Eventually, Josiah moved to the South Texas area, and he
met Lois several years before they were married in approximately 1990. According
to Steve, he had a good relationship with Lois and Josiah. Before Lois and Josiah
were married, Steve managed Lois’s personal IRA rollover account. And he also
managed Josiah’s individual investment account. After Josiah married Lois, Josiah
put the investment account into a joint tenancy with Lois. And upon the death of
Josiah in 2014, the investment account was the sole property of Lois.
Steve testified that when the investment account was with Raymond James it
was not set up as a transfer on death account, but when it was moved by Lois from
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Raymond James to LPL, it was set up as a “TOD” account, and under the payable
on death provision in the LPL agreement, on Lois’s death, the beneficiary was listed
as Lois’s brother, Bill Sherbert, if he survived her. Steve testified that he had no idea
Lois had set up the LPL investment account as a TOD account, which was payable
to her brother, until the litigation started. Steve further testified that an administrative
assistant would have been the person who prepared the paperwork and sent it to Lois,
which Lois signed through DocuSign. Steve agreed that the first time he saw Lois’
Will was in November 2023, after her death.
On cross-examination, the defense attorney asked Steve if he was aware that
in May of 2023 the LPL statements reflect that the stocks that had been in the
Raymond James account were all sold and that as of May of 2023, the stocks and
securities in the LPL account at the time of Lois’s death were different than the
stocks and securities that had been in the Raymond James account. Steve did not
recall that but when asked about specific entries on the May 2023 statement from
LPL, he agreed that there were sales and purchases of over 1.9 million before her
death.
Jeremy Friedman testified that he is a financial advisor for Silverleaf Wealth
Management and Silverleaf uses LPL as the custodian of its accounts. Jeremy
initially began working with Steve when they were both at Wells Fargo, and then
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they moved to Raymond James, and in 2022 they moved to Silverleaf Wealth
Management.
The trial court noted on the record that Plaintiffs’ Exhibit 3 reflects Lois had
an agreement with LPL setting up the LPL investment account as a TOD account,
and she named her brother as the beneficiary on death, if he survived her. Further
the agreement shows that Lois signed the agreement on February 10, 2022, and the
trial court stated:
“Whether she understood the nature of this, whether she intended to
have a TOD designation, whether she intended all those things seems
to me to be immaterial when I have a contract that she signed where she
designated someone. She designated her brother. She provided his date
of birth, and she says 100 percent. That’s all on page 1 of Plaintiffs’
Exhibit 3. So I know that he’s predeceased. I understand that it doesn’t
go to him; it doesn’t go to his heirs. I’m with you on that. But on this
question of whether there was a TOD designation, your evidence shows
me there was.”
According to Jeremy, Silverleaf required that every account must have a beneficiary
designation unless it is an account that cannot have one. Jeremy testified that in the
summer of 2022, he did not know the account had already been set up with a TOD,
and he called and asked Lois if she wanted to “add a TOD,” and she told him “No.
The Will will handle that.”
Lois’s Will
In 2018, when Lois executed her Will, she specifically included under Article
II., entitled “Specific Gift,” subparagraph B. which states as follows:
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B. Gift of Raymond James Account. I give all of my interest in my
Raymond James and Associates account ending in ****M386 in equal
shares to GAIL ANN FRIEDMAN; JOHN JAY SHOOTER, and BILL
R. SHERBERT, provided, however, no such gift shall be made if such
account does not exist on the date of my death; provided, further, I
understand that such account may pass outside the provisions of my
Will if, for instance, I am holding such account as joint tenants with
rights of survivorship with one or more other persons or if such account
is payable on death to one or more named beneficiaries. If GAIL ANN
FRIEDMAN, JOHN JAY SHOOTER or BILL R. SHERBERT fails to
survive me, the gift to such individual shall instead pass to the
descendants of such individual who survive me per stirpes; provided,
further, if no descendant of such individual survive me, the gift shall
lapse.
Additionally, Article III. of the Will is entitled “Residue,” and it states as
follows:
I give all of the residue of my estate to BILL R. SHERBERT. If BILL
R. SHERBERT fails to survive me, I give all of the residue of my estate
to BILL R. SHERBERT’s descendants who survive me per stirpes. If
all of the beneficiaries listed above fail to survive me, then I give all of
the residue of my estate to my heirs.
Final Judgment and
Findings of Fact and Conclusions of Law
Final Judgment
On October 21, 2024, the trial court signed a Final Judgment and ordered
that Gail Friedman, Jesse Shooter, and Rachel Tamura take nothing on their claims
and causes of action. The trial court also ordered that the LPL Financial “Lois
TOD” Account ****2922 passes under the residuary clause in the Last Will and
Testament of Lois Sherbert Shooter dated November 7, 2018. Additionally, the
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trial court denied the request for attorney’s fees, and ordered that Gail Friedman,
Jesse Shooter, and Rachel Tamura, jointly and severally, pay all costs of court as
determined by the county clerk in a bill of costs, for which let execution issue,
together with post judgment interest on all amounts awarded herein at the rate of
8.5% per annum from October 22, 2024 until the judgment is satisfied in full.
Finally, the trial court ordered that all other relief not expressly granted was denied,
and the court declared it to be a Final Judgment as to all claims and parties and is
appealable.
Findings of Fact and Conclusions of Law
Upon the request of Plaintiffs, the trial court issued Findings of Fact and
Conclusions of Law as follows:
Findings of Fact:
1. The November 7, 2018 Will of Lois Sherbert Shooter (the “Will”)
was admitted to probate on September 29, 2023 in Cause no. 23-45299-P, in Probate Court No. 1 of Montgomery County[,] Texas.
2. Adrienne Murphrey was appointed the Independent Executrix of the
Estate of Lois Sherbert Shooter, Deceased, and is serving in that
position.
3. Plaintiffs filed their Original Petition for Declaratory Judgment in
Probate Court No. 1 of Montgomery County in cause 23-33580. This
Court has jurisdiction over all of the parties.
4. Venue is proper in Montgomery County, Texas as the Will was
admitted to probate in Montgomery County, and this Court has
exclusive jurisdiction over matters pertaining to the Estate of Lois
Sherbert Shooter, Deceased.
5. This case was tried to the bench, with the Honorable Kristin Bays
sitting as Probate Court No. 1 of Montgomery County, Texas, by
request of the Parties.
6. Ms. Shooter did not have any children.
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7. Ms. Shooter’s brother, Bill Sherbert, predeceased Ms. Shooter on April 19, 2023, less than two months before her death.
8. The residuary beneficiaries under the Will are Ms. Shooter’s nieces, the daughters of her brother Bill Sherbert.
9. Gail Ann Friedman and John Jay Shooter are the children of John
Josiah Shooter, Ms. Shooter’s husband who predeceased her on
September 11, 2014.
10. John Jay Shooter predeceased Ms. Shooter on April 17, 2021,
leaving Jesse Shooter and Rachel Tamura as his descendants.
11. Prior to February 10, 2022, Lois Sherbert Shooter had a “Raymond James and Associates account ending in ****M386” (the “Raymond
James Account”).
12. In January 2022, Ms. Shooter opened a Transfer on Death Account at LPL Financial “Lois TOD Account ****2922” (LPL Lois TOD
Account).
13. On February 10, 2022, Ms. Shooter signed and entered into a
“Transfer on Death Account Agreement – Non-Retirement” for the
LPL Lois TOD Account.
14. In the Transfer on Death Account Agreement – Non-Retirement,
Ms. Shooter named her brother, Bill Sherbert, as the sole beneficiary to whom the LPL Lois TOD Account should be payable at death.
15. On February 10, 2022, Ms. Shooter signed an Account Transfer
authorization for the transfer of assets from the Raymond James
Account to the LPL Lois TOD Account.
16. In February and March 2022, Ms. Shooter transferred the assets in the Raymond James Account to her LPL Lois TOD Account in kind
and closed the Raymond James Account. After that, there was no
Raymond James and Associates account ****M386.
17. The monthly statements that Ms. Shooter received from LPL
Financial thereafter clearly and prominently identified the LPL Lois TOD Account as “Lois TOD” in the upper right hand corner and as
“TOD ACCOUNT” in the address block.
18. Lois Sherbert Shooter died on June 13, 2023, at the age of 87.
19. In Article II.B of her Will, Ms. Shooter stated:
B. Gift of Raymond James Account. I give all of my interest in
my Raymond James and Associates account ending in ****M386 in
equal shares to GAIL ANN FRIEDMAN[,] JOHN JAY SHOOTER,
and BILL R. SHERBERT, provided, however, no such gift shall be
made if such account does not exist on the date of my death;
provided, further, I understand that such account may pass outside the
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provisions of my Will if, for instance, I am holding such account as joint tenants with rights of survivorship with one or more other persons or if such account is payable on death to one or more named
beneficiaries. If GAIL ANN FRIEDMAN, JOHN JAY SHOOTER or
BILL R. SHERBERT fails to survive me, the gift to such individual
shall instead pass to the descendants of such individual who survive me per stirpes; provided, further, if no descendant of such individual survive me, the gift shall lapse.
20. In Article III of her Will, Ms. Shooter stated:
I give all of the residue of my estate to BILL R. SHERBERT. If
BILL R. SHERBERT fails to survive me, I give all of the residue of my estate to BILL R. SHERBERT’s descendants who survive me per
stirpes. If all of the beneficiaries listed above fail to survive me, then I give all of the residue of my estate to my heirs.
21. Ms. Shooter did not change her will after she opened the LPL Lois TOD Account and transferred the assets from the Raymond James
Account into it.
22. Ms. Shooter did not make a gift of any particular asset or assets which were within the Raymond James and Associates Account ending
in ****M386 – nor did she even make a gift with a reference to the
contents of the Raymond James and Associates Account ending in
****M386 –but, instead, she made a gift of that account itself noting that the gift failed if, at the time of her death, the account did not exist. 23. Ms. Shooter made no provision for the gift described in Article II.B if the Raymond James and Associates Account ending in ****M386
did not exist at the time of her death (for instance, she did not make mention of any successor account being part of this gift as a catch all) other than to say, “no such gift shall be made if such account does not exist on the date of my death[.”]
24. The Raymond James and Associates Account ending in ****M386
did not exist at the time of Ms. Shooter’s death.
25. Because it did not exist on the date of Lois Shooter’s death, she did not make a gift of it under Article II.B. of the Will per the express terms of the Will.
26. Further, even if the transfer of the assets of the Raymond James and Associates Account ending in ****M386 to the LPL Lois TOD
Account means that the Raymond James and Associates Account
ending in ****M386 and the LPL Lois TOD Account are the same,
such that this Court should interpret that the two accounts are both covered by Article II.B. of the Will, then the provision of Article II.B.
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of the Will which states, “I understand that such account may pass
outside the provisions of my Will...if such account is payable on death to one or more named beneficiaries” governs this devise. The account had a named beneficiary, and although he predeceased Ms. Shooter, the transfer to him failed and then the account fell into Ms. Shooter’s residuary estate (Article III of the Will) by operation of law. Thus, even if the LPL Lois TOD Account is considered to be the same as the
Raymond James and Associates Account ending in ****M386, Ms.
Shooter did not make a gift of it under Article II.B. of the Will per the express terms of the Will.
27. Ms. Shooter did not make a gift of the LPL Lois TOD Account to
Gail Ann Friedman, John Jay Shooter and Bill R. Sherbert in Article II.B of the Will.
28. Gail Friedman, Jesse Shooter, and Rachel Tamura did not prove by a preponderance of the credible evidence that Ms. Shooter intended for the LPL Lois TOD Account to pass under Article II.B of her Will.
29. Because the attorneys’ fees of Adrienne Murphrey, Independent
Executrix of the Estate of Lois Sherbert Shooter, Deceased, have been paid from the Estate, the Court exercises its discretion not to make an award of those attorneys’ fees.
30. Plaintiffs were not successful in their lawsuit.
31. Given the legitimacy of the dispute between these parties, it is not equitable or just to award attorneys’ fees to either side.
Conclusions of Law:
1. This Court has jurisdiction of the parties and of the subject matter of this case.
2. Venue is proper in Montgomery County, Texas.
3. The Court’s duty as the trier of facts and law in this case is to ascertain Ms. Shooter’s intent in the Will.
4. There is no language or term in Ms. Shooter’s Will that is subject to more than one reasonable interpretation or construction or is uncertain. 5. The Will is unambiguous.
6. Ms. Shooter’s intent is apparent on the face of the Will.
7. From the language found within the four corners of the Will, Ms. Shooter’s intent in Article II.B of her Will was to gift the Raymond James Account to Gail Ann Friedman, John Jay Shooter and Bill R.
Sherbert (or their descendants) only if that account existed at the time of her death.
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8. From the language found within the four corners of the Will, Ms.
Shooter did not express an unqualified intent to leave any gift to Gail
Ann Friedman, John Jay Shooter and Bill R. Sherbert (or their
descendants) in Article II.B of the Will.
9. Ms. Shooter did not intend to make a gift of the LPL Lois TOD
Account to Gail Ann Friedman, John Jay Shooter and Bill R. Sherbert
(or their descendants) in Article II.B of the Will.
10. The intent and construction advocated by Gail Ann Friedman, Jesse
Shooter and Rachel Tamura would require the Court to ignore the
express language of the Will, essentially redrafting it and varying and
adding to its unambiguous provisions.
11. Even considering the extrinsic evidence admitted at trial, Ms.
Shooter did not intend to give the LPL Lois TOD Account to Gail Ann
Friedman, John Jay Shooter and Bill R. Sherbert (or their descendants)
in Article II.B of the Will.
12. Plaintiffs were not successful in their lawsuit.
13. It is not equitable or just to award attorneys’ fees to Plaintiffs.
14. Plaintiffs shall take nothing on their claims.
15. The LPL Lois TOD Account passes pursuant to the residuary clause
in Article III of Ms. Shooter’s Will, and Adrienne Murphrey,
Independent Executrix of the Estate [of] Lois Sherbert Shooter,
Deceased, is entitled to a declaration accordingly.
16. Defendant shall recover all of her costs of court.
17. Any finding of fact that is a conclusion of law shall be deemed a
conclusion of law. Any conclusion of law that is a finding of fact shall
be deemed a finding of fact.
Standard of Review and Applicable Law
In an appeal from a bench trial, the trial court’s findings of fact have the same
weight as a jury verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994);
Nguyen v. Yovan, 317 S.W.3d 261, 269-70 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied). When challenged, a trial court’s findings of fact are not conclusive if
there is a complete reporter’s record on appeal. BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 795 (Tex. 2002). We review a trial court’s findings of
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fact under the same legal sufficiency of the evidence standard used when
determining whether sufficient evidence exists to support an answer to a jury
question. See Catalina, 881 S.W.2d at 297; Nguyen, 317 S.W.3d at 269-70.
An appellant may not challenge a trial court’s conclusions of law for factual
sufficiency, but we may review the legal conclusions drawn from the facts to
determine their correctness. See BMC Software, 83 S.W.3d at 794. In an appeal from
a bench trial, we review the conclusions of law de novo and will uphold them if the
judgment can be sustained on any legal theory supported by the evidence. See id. “If
the reviewing court determines a conclusion of law is erroneous, but the trial court
rendered the proper judgment, the erroneous conclusion of law does not require
reversal.” Id.
When considering whether legally sufficient evidence supports a challenged
finding, we must consider the evidence that favors the finding if a reasonable fact
finder could, and disregard contrary evidence unless a reasonable fact finder could
not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We view the
evidence in the light most favorable to the trial court’s findings and indulge every
reasonable inference to support them. Id. at 822. We may not sustain a legal
sufficiency, or “no evidence,” point unless the record demonstrates (1) a complete
absence of evidence of a vital fact; (2) that the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact; (3)
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that the evidence offered to prove a vital fact is no more than a mere scintilla; or (4)
that the evidence conclusively establishes the opposite of the vital fact. Id. at 810.
Because it acts as the fact finder in a bench trial, the trial court is the sole judge of
the credibility of witnesses and the weight to be given to their testimony. Golden
Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). If the evidence at
trial “would enable reasonable and fair-minded people to differ in their conclusions,”
we will not substitute our judgment for that of the fact finder. City of Keller, 168
S.W.3d at 822.
When it attacks the legal sufficiency of an adverse finding on an issue on
which it has the burden of proof, the appellant must demonstrate on appeal that the
evidence establishes, as a matter of law, all vital facts in support of the issue. Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In reviewing a “matter of
law” challenge, the reviewing court must first examine the record for evidence that
supports the finding, while ignoring all evidence to the contrary. Id. If there is no
evidence to support the finding, the reviewing court will then examine the entire
record to determine if the contrary proposition is established as a matter of law. Id.
The point of error should be sustained only if the contrary proposition is conclusively
established by the record. Id.
In a factual sufficiency review, we consider and weigh all of the evidence. See
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Arias v. Brookstone, L.P., 265
17
S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). When the
appellant challenges an adverse finding on an issue on which it did not have the
burden of proof at trial, we set aside the verdict only if the evidence supporting the
finding is so weak as to make the verdict clearly wrong and manifestly unjust. See
Cain, 709 S.W.2d at 176; Reliant Energy Servs., Inc. v. Cotton Valley Compression,
L.L.C., 336 S.W.3d 764, 782 (Tex. App.—Houston [1st Dist.] 2011, no pet.). When
it challenges an adverse finding on an issue on which it had the burden of proof at
trial, the appellant must demonstrate on appeal that the adverse finding is against the
great weight and preponderance of all the evidence. Dow Chem. Co., 46 S.W.3d at
242; Reliant Energy Servs., Inc., 336 S.W.3d at 782.
Evidence admitted at trial is legally sufficient to support a judgment if it
allowed “reasonable and fair-minded people to reach the verdict under review.” City
of Keller, 168 S.W.3d at 827. When reviewing legal sufficiency, the Court must
“credit evidence that supports the verdict if reasonable jurors could, and disregard
contrary evidence unless reasonable jurors could not.” Kroger Tex. Ltd. P’ship v.
Suberu, 216 S.W.3d 788, 793 (Tex. 2006) (citing City of Keller, 168 S.W.3d at 827).
The Court will sustain a legal sufficiency challenge if the evidence establishing a
vital fact is no more than a scintilla. See id. at 793. “‘[M]ore than a scintilla of
evidence exists if the evidence ‘rises to a level that would enable reasonable and fairminded people to differ in their conclusions.’” Ford Motor Co. v. Ridgway, 135
18
S.W.3d 598, 601 (Tex. 2004) (quoting Merrell Dow Pharm., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997)). However, evidence offered to prove a vital fact
constitutes no more than a scintilla when it “‘is so weak as to do no more than create
a mere surmise or suspicion of its existence,’” thus, “‘in legal effect, is no
evidence.’” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
When reviewing the factual sufficiency of the evidence, this Court should “set
aside the verdict only if it is so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust.” Cain, 709 S.W.2d at 176. In examining whether
the evidence is factually sufficient to support the findings made by the fact finder,
the Court weighs all the evidence, both for and against the finding. See Dow Chem.
Co., 46 S.W.3d at 242.
An appellant must challenge each independent ground that fully supports a
complained-of ruling or judgment. Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422,
423-24 (Tex. App.—Dallas 2009, no pet.); Reynolds v. Guido, 166 S.W.3d 789, 795
(Tex. App.—Dallas 2005, pet. denied). If an appellant fails to assign error to an
independent ground that fully supports the complained-of ruling or judgment, we
must accept the validity of that ground, rendering harmless any error in the ground
challenged on appeal. Oliphant Fin. LLC, 295 S.W.3d at 423-24. Thus, we must
overrule a challenge to fact findings that underpin a legal conclusion or disposition
when other fact findings that also support that legal conclusion or disposition are not
19
challenged. Howeth Invs., Inc. v. City of Hedwig Vill., 259 S.W.3d 877, 889 (Tex.
App.—Houston [1st Dist.] 2008, pet. denied); see also Long v. Long, 196 S.W.3d
460, 468-69 (Tex. App.—Dallas 2006, no pet.). Generally, an appellant must direct
an attack on the sufficiency of the evidence at specific findings of fact and
conclusions of law rather than at the judgment as a whole. Shaw v. Cnty. of Dallas,
251 S.W.3d 165, 169 (Tex. App.—Dallas 2008, pet. denied). Unchallenged findings
are binding on an appellate court, but we may review specific findings being
challenged if we are able to fairly determine them. In re M.S.F., 383 S.W.3d 712,
716 (Tex. App.—Amarillo 2012, no pet.); Shaw, 251 S.W.3d at 169. The standards
of review for claims of legal and factual sufficiency of the evidence govern appeals
of non-jury trials on the merits. IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938
S.W.2d 440, 445 (Tex. 1997). When a party appeals from a non-jury trial, it must
complain of specific findings and conclusions of the trial court. City of Dallas v.
Pacifico Partners, Ltd., 289 S.W.3d 371, 373 (Tex. App.—Dallas 2009, no pet.).
“[U]nchallenged findings of fact are binding on the appellate court unless the
contrary is established as a matter of law, or if there is no evidence to support the
finding.” City of Corpus Christi v. Taylor, 126 S.W.3d 712, 717 (Tex. App.—Corpus
Christi 2004, pet. withdrawn).
The Court must affirm a judgment if an appellant fails to challenge each
independent ground that supports it. Rockov-Medina v. Parghi, No. 09-22-00091-20
CV, 2024 Tex. App. LEXIS 7132, at *24 (Tex. App.—Beaumont October 3, 2024,
no pet.) (mem. op.). If an appellant fails to assign error to an independent ground
that fully supports the complained-of ruling or judgment, we must accept the validity
of that ground, rendering harmless any error in the ground challenged on appeal.
Patton v. Echols, No. 09-22-00334-CV, 2024 Tex. App. LEXIS 7751, at *51 (Tex.
App.—Beaumont Oct. 31, 2024, no pet.) (mem. op.) (citation omitted).
Issue and Arguments of Parties
In Appellants only issue on appeal they contend the evidence is legally and
factually insufficient to support the trial court’s judgment declaring that the
investment account at LPL passes pursuant to the residuary clause and not under the
specific bequest made under Article II. B. of the Will. They argue that the trial court
erred in concluding that the transfer of the investment account from one brokerage
firm to another destroyed Lois’s specific bequest of the Raymond James account to
Appellants. And further that the trial court was “factually and legally wrong” to
conclude that the account specified in the Will “did not exist[]” at the time Lois died.
They argue the trial court erred in concluding that the movement of the Raymond
James account to the LPL account constituted an “ademption.” Appellants also argue
that Lois intended to convey the substance of the Raymond James account to the
Appellants and to her brother, or his heirs under the specific bequest in her Will, and
21
moving the money and securities to the LPL investment account did not limit or
change that intent.
Appellee contends the trial court correctly decided the case and provided at
least two independent grounds for its judgment, and the Appellants have only
challenged one of those grounds on appeal. Appellee argues that at most the
Appellants have only challenged the trial court’s findings and conclusion that the
Raymond James account did not exist at the time of Lois’s death and have not
challenged the independent ground that the LPL investment account was set up with
a TOD beneficiary and precluded any gift under Article II. B. of the Will, and that
when Bill predeceased Lois, the LPL TOD account passed into the residuary estate.
Next, Appellee argues that the Appellants’ general complaint about the Judgment
and failure to specify which findings and conclusions they attack fail to present a
justiciable issue on appeal, and the otherwise unchallenged findings are binding on
appeal and independently support the Judgment. And Appellee contends Appellants
failed to satisfy their burden to show the evidence is legally and factually
insufficient.
In Appellants’ Reply, they argue that their brief did challenge both grounds
for the trial court’s findings, because they argued that Lois did not intend to set up a
TOD account at LPL and that it was set up by mistake. Alternatively, they contend
the trial court’s findings regarding the TOD were not a separate and independent
22
basis for the judgment because the TOD provision itself was of no relevance given
Bill predeceased Lois and neither party argued the LPL investment account passed
pursuant to the TOD. Further, they contend the appellate court can fairly determine
from the Appellants’ brief which findings and conclusions are being challenged even
if the Appellants failed to specify which numbered findings and conclusions are
being challenged. They argue Lois intended as stated in her Will for, not only the
Raymond James account to pass to the Plaintiffs, but also the assets within that
account to pass to the Plaintiffs, and Lois’s movement of the assets in the Raymond
James account to the LPL investment account “did not destroy the specific bequest
to Appellants.” They argue the evidence “conclusively established that Lois did not
adeem the Raymond James account.” And further they contend that the Judgment is
against the great weight of the evidence and contrary to Texas precedence regarding
ademption.
Analysis
In Appellants’ sole issue stated in their brief on appeal, they challenge the
factual and legal sufficiency of the evidence to support the trial court’s judgment.
That said, they have failed to specify which findings of fact or conclusions of law
they challenge on appeal. We have nevertheless reviewed the substance of this point
of error to determine, as best we can, which fact-findings and legal conclusions
Appellants implicitly challenge. See Storck v. Tres Lagos Prop. Owners Ass’n, Inc.,
23
442 S.W.3d 730, 735 (Tex. App.—Texarkana 2014, pet. denied); see also Tex. R.
App. P. 38.9.
We conclude the only findings of fact and conclusions of law Appellants have
implicitly challenged are as follows:
Findings of Fact
…
22. Ms. Shooter did not make a gift of any particular asset or assets
which were within the Raymond James and Associates Account ending
in ****M386 – nor did she even make a gift with a reference to the
contents of the Raymond James and Associates Account ending in
****M386 –but, instead, she made a gift of that account itself noting
that the gift failed if, at the time of her death, the account did not exist.
23. Ms. Shooter made no provision for the gift described in Article II.B
if the Raymond James and Associates Account ending in ****M386
did not exist at the time of her death (for instance, she did not make
mention of any successor account being part of this gift as a catch all)
other than to say, “no such gift shall be made if such account does not
exist on the date of my death[.”].
24. The Raymond James and Associates Account ending in ****M386
did not exist at the time of Ms. Shooter’s death.
25. Because it did not exist on the date of Lois Shooter’s death, she did
not make a gift of it under Article II.B. of the Will per the express terms
of the Will.
…
28. Gail Friedman, Jesse Shooter, and Rachel Tamura did not prove by
a preponderance of the credible evidence that Ms. Shooter intended for
the LPL Lois TOD Account to pass under Article II.B of her Will.
Conclusions of Law
…
7. From the language found within the four corners of the Will, Ms.
Shooter’s intent in Article II.B of her Will was to gift the Raymond
James Account to Gail Ann Friedman, John Jay Shooter and Bill R.
Sherbert (or their descendants) only if that account existed at the time
of her death.
…
24
15. The LPL Lois TOD Account passes pursuant to the residuary clause
in Article III of Ms. Shooter’s Will, and Adrienne Murphrey,
Independent Executrix of the Estate [of] Lois Sherbert Shooter,
Deceased, is entitled to a declaration accordingly.
Appellee contends on appeal that the Appellants failed to challenge an
independent ground for the trial court’s final judgment which they argue arises from
finding of fact 26, which states:
26. Further, even if the transfer of the assets of the Raymond James and
Associates Account ending in ****M386 to the LPL Lois TOD
Account means that the Raymond James and Associates Account
ending in ****M386 and the LPL Lois TOD Account are the same,
such that this Court should interpret that the two accounts are both
covered by Article II.B. of the Will, then the provision of Article II.B.
of the Will which states, “I understand that such account may pass
outside the provisions of my Will...if such account is payable on death
to one or more named beneficiaries” governs this devise. The account
had a named beneficiary, and although he predeceased Ms. Shooter, the
transfer to him failed and then the account fell into Ms. Shooter’s
residuary estate (Article III of the Will) by operation of law. Thus, even
if the LPL Lois TOD Account is considered to be the same as the
Raymond James and Associates Account ending in ****M386, Ms.
Shooter did not make a gift of it under Article II.B. of the Will per the
express terms of the Will.
We agree with Appellee that finding of fact 26 would independently support the trial
court’s judgment and Appellants failed to challenge it on appeal.
The unambiguous language in the Will stated that under Article II. B., the gift
of the Raymond James account may pass outside the provisions of the Will if it is
payable on death to one or more named beneficiaries. It is undisputed that when the
LPL account agreement was signed by Lois, and upon the inception of the LPL
25
investment account, it was a “TOD Account.” The account had a named beneficiary,
Bill Sherbert, and although he predeceased Lois, the account was established as a
TOD account and does not fall within Article II. B. Rather, as the trial court correctly
concluded, because Bill predeceased Lois, the LPL account then would be governed
by the residuary clause (Article III of the Will) by operation of law. Thus, even if
the LPL Lois TOD Account is considered to contain the same stock or assets as the
Raymond James Account ending in ****M386, Lois did not intend to make a gift of
it under Article II. B. of the Will per the express terms of the Will and the
unambiguous terms of the LPL account agreement.
We need not examine whether the trial court erred in concluding the Raymond
James account “did not exist” at the time of Lois’s death, or whether there was an
“ademption” of that account as phrased by Appellants because even if Appellants
are correct regarding their contention that the LPL account was just a substitute for
the Raymond James account, the trial court’s unchallenged findings regarding the
LPL TOD account support the judgment. See Oliphant Fin. LLC, 295 S.W.3d at 423-24; Howeth Inv., Inc., 259 S.W.3d at 889; and Long, 196 S.W.3d at 468-69.
That said, even if we accept Appellants’ argument that they implicitly
challenged finding of fact 26 or if, as Appellants argue, finding of fact 26 is not an
independent ground supporting the judgment, we also conclude that the trial court’s
judgment is supported by legally and factually sufficient evidence.
26
As to the legal sufficiency challenge, Appellants failed to meet their burden
to show that the record discloses a complete absence of evidence of a vital fact, or
that the court is barred by rules of law or evidence from giving weight to the
only evidence offered to prove a vital fact, or that the evidence offered to prove a
vital fact is no more than a mere scintilla, or that the evidence establishes
conclusively the opposite of a vital fact. City of Keller, 168 S.W.3d at 810. After
considering the evidence favorable to the findings made by the trial court and
disregarding evidence contrary to the findings as we must, we conclude there is
more than a scintilla of evidence to support the trial court’s judgment. Additionally,
as to factual sufficiency, after considering all the evidence in the record, we cannot
say that the that the trial court’s judgment is so contrary to the great weight and
preponderance of the evidence as to be clearly wrong or unjust. Id.
In other uncontested findings of fact, the trial court concluded that Lois’s Will
is unambiguous, and the trial court correctly recited the language contained in
Article II. B. and in Article III of Lois’s Will. Furthermore, the trial court found that
the LPL investment account established by Lois was a “TOD account.” Each of these
unchallenged findings is binding on appeal. See Patton, 2024 Tex. App. LEXIS
7751, at *51; Shaw, 251 S.W.3d at 169; and City of Corpus Christi, 126 S.W.3d at
717. In Article II. B., the unambiguous language of the Will provided that “no such
gift shall be made if such account does not exist on the date of my death; provided,
27
further, I understand that such account may pass outside the provisions of my Will
if, for instance, I am holding such account as joint tenants with rights of survivorship
with one or more other persons or if such account is payable on death to one or more
named beneficiaries.” So, under the unambiguous language of II.B., the gift would
not be made if the account did not exist or if such account is payable on death to one
or more named beneficiaries. The trial court found the account did not exist at the
time of Lois’s death, and that the LPL account was a TOD account. Either finding
would support the trial court’s Judgment.
We expressly also reject Appellants’ argument that the trial court’s judgment
is contrary to established precedent pertaining to “ademption.” Appellants contend
that like the facts in Eckels v. Davis, 111 S.W.3d 687 (Tex. App.—Forth Worth
2003, pet. denied), article II. B. contains a latent ambiguity. We disagree and find
the Appellants reliance on Eckels is misplaced.
In Eckels, the Fort Worth Court of Appeals examined the issue of whether a
financial management company’s unilateral act of renumbering one of the accounts
for bookkeeping purposes transformed the assets in that renumbered account into
non-trust assets. The trust that was at issue in Eckels had specifically referenced the
prior account number, and the account number was changed unilaterally without the
knowledge of the decedent. Id. at 691. Here, unlike Eckels, the Raymond James
account was intentionally moved by the decedent, Lois, and Lois moved her
28
securities and the cash in that account to an LPL account, she set up a new and totally
different type of an account which was a “TOD account,” and by its terms the new
account would not pass as a gift under article II. B. of the Will. Lois specifically
stated in her LPL TOD account how she wanted the assets in the new account to be
distributed, and she personally filled out the account forms and named her brother
as the beneficiary on death for the TOD account. Unlike Eckels, we conclude there
is no ambiguity in the language Lois used in the Will.2
For all of the reasons explained above, we overrule Appellants’ sole issue on
appeal, and we affirm the trial court’s judgment.
AFFIRMED.
LEANNE JOHNSON
Justice
Submitted on March 19, 2026
Opinion Delivered July 16, 2026
Before Johnson, Wright and Chambers, JJ.
2
We also find the out-of-state authority cited by Appellant to be non-binding, unpersuasive, and distinguishable on the facts.
29