Date: 11-23-2022

Case Style:

Gary M. Cooper v. Wyoming Cooper-Clifton

Case Number: 01-20-00476-CV

Judge: Julie Countiss

Court:

First Court of Appeals Houston, Texas

On appeal from the 164th District Court Harris County, Texas

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Defendant's Attorney: Tanika Solomon

Description:

Houston, Texas – Civil Litigation lawyer represented seeking of judgment determining that she was the owner of an account owned by her mother.

In her first amended petition, Wyoming alleged that she and Cooper were both
children of Ocella Simmons Cooper (“Ocella”), who died in April 2013. Before her
death, Ocella owned an interest in two Ameriprise Financial Services, LLC
(“Ameriprise”) accounts ending in 2133 and 3133 (the “Ameriprise accounts”).
According to Wyoming, the Ameriprise accounts were created in 2002 as “Joint
Tenancy [Accounts] With Rights [of] Survivorship.” Ocella, Wyoming, and Cooper
were signatories on the Ameriprise accounts and “owners in joint tenancy with rights
[of] survivorship.” Upon Ocella’s death, her interest in the Ameriprise accounts
passed equally to Wyoming and Cooper “as a-matter-of-contract.” Because the
Ameriprise accounts were joint tenancy accounts with rights of survivorship, they
were non-probate assets and not part of Ocella’s estate.

In her suit, Wyoming sought declarations as to the ownership rights of the
Ameriprise accounts, including that the accounts “were established and maintained
as Joint Tenancy [Accounts] With Rights [of] Survivorship,” “one-half of the
interest in the[] [Ameriprise] accounts [that] was held by Ocella . . . , passed equally
to Wyoming . . . and to . . . Cooper as a matter-of-contract upon the death of Ocella,”
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the Ameriprise accounts were “non-probate asset[s]” under the Texas Estates Code,
“no other persons or estates own[ed] an interest in the [Ameriprise] accounts,” and
Wyoming and Cooper were “each entitled to a one-half interest in” the Ameriprise
accounts. Wyoming also requested a “[c]ourt ordered and [c]ourt monitored
partition of the [Ameriprise] accounts” because she was a co-owner of the accounts,
was entitled to a judgment declaring her right to a one-half interest in the Ameriprise
accounts, and she had difficulty “obtaining and separating her interest from that of”
Cooper. Wyoming requested attorney’s fees under Texas Civil Practice and
Remedies Code sections 37.009 and 38.001.
Cooper answered, generally and specifically denying the allegations in
Wyoming’s petition and asserting various defenses. Cooper also asserted that the
trial court lacked subject-matter jurisdiction over Wyoming’s suit for a declaratory
judgment and partition of property because Ocella’s “[w]ill [was] being probated”
in Probate Court No. 2 of Harris County, Texas (the “probate court”) and the probate
court had already acquired jurisdiction over the subject matter of Wyoming’s suit.
Cooper then moved to dismiss1 Wyoming’s suit for a declaratory judgment
and partition of property, arguing that the trial court lacked subject-matter
1 Cooper titled his motion “First Motion to Dismiss Plaintiff’s Petition for
Declaratory Judgment and Petition for Partition of Property” and “Plea to the
Court’s Lack of Subject Matter Jurisdiction and Jurisdiction of the Parties.” Cooper
also filed a “Supplement to His First Motion to Dismiss Plaintiff’s Petition for
Declaratory Judgment and Petition for Partition of Property.”
4
jurisdiction over Wyoming’s suit because the suit involved the Ameriprise accounts
that were a part of Ocella’s estate and “[j]urisdiction had already been acquired” by
the probate court where Ocella’s will was being probated. Cooper asserted that by
filing her suit, Wyoming was “attempting to go around” the probate court. Because
the probate court was the proper court to “determine the distribution of the funds” in
the Ameriprise accounts, Cooper requested that the trial court dismiss Wyoming’s
suit for lack of subject-matter jurisdiction.
Cooper attached his own affidavit to his motion to dismiss, which stated:
1. This Court lacks subject matter jurisdiction over the
property and parties, both [Wyoming] and [myself], to hear
[Wyoming’s] suit for [d]eclaratory [j]udgment and [p]etition for
[p]artition of [p]roperty.
2. The [j]urisdiction over the property, the subject matter of
[Wyoming’s] suit, and jurisdiction over the parties,
both . . . Wyoming . . . and . . . [myself], are in the Probate Court
Number Two of Harris County . . . under [c]ause [n]umber 427635,
where the [w]ill and [e]state of Ocella . . . is being probated. The
property involved in . . . Wyoming[’s] . . . suit filed in th[e] [trial]
[c]ourt is the property of the [e]state of [Ocella] . . . . [The probate
court] . . . acquired jurisdiction over the subject matter and the parties
on July 9, 2014, when after the [l]ast [w]ill and [t]estament of
Ocella . . . was filed for probate, and after Judge Mike Wood
appointed . . . [me] Successor Dependent Administrator with the Will
Annexed of the Estate of Ocella . . . . Wyoming . . . subjected herself
to the jurisdiction of [the probate court] . . . when she filed her own
Application to be Appointed Independent Executrix of the Will and
Estate of . . . Ocella . . . in 2016, two years after she refused to serve as
Executrix . . . .
Judge Wood . . . denied Wyoming[’s] . . . Application. The
[e]state of Ocella . . . is still being administered in [the probate court]
5
and . . . [I am] still serving as Successor Dependent Administer with the
Will Annexed since being appointed on July 9, 2014.
3. . . . Wyoming . . . is not a co-owner of any accounts
deposited with Ameriprise . . . . Wyoming . . . is not a Joint Tenant
with Right[s] of Survivorship along with
Ocella . . . . Wyoming . . . does not own an undivided one-half (1/2)
interest in the stated financial accounts deposited
with . . . Ameriprise . . . . The financial accounts deposited with
Ameriprise . . . were the accounts of Ocella . . . , which during her
lifetime she deposited her own money. . . . Wyoming . . . never
deposited any of her own money in any of . . . Ocella[’s] . . . accounts
at Ameriprise . . . .
4. Ocella . . . and her late husband, Mitchell Cooper
[(“Mitchell”)], sold some real estate they had owned for many years.
They deposited their money from the sale of their land in several
different bank savings accounts. After . . . Ocella[’s] . . . late husband,
Mitchell . . . , died in 1989, she discovered that her son, Jimmy Lee
Cooper [(“Jimmy”], was using her bank accounts as security for his
lines of credit for his businesses.
. . . Wyoming . . . found out that Jimmy . . . was
using . . . O[c]ella[’s] . . . money for his businesses and suggested that
[she and I] should take . . . Ocella . . . to various banks where she had
her money deposited and helped her withdraw her money from the
various banks and deposit it in the financial institution which is now
known as Ameriprise . . . .
When . . . Wyoming[,] . . . [I], and Ocella . . . went to
Ameriprise . . . , we discussed our fear with the broker
that . . . [Ocella’s] son, Jimmy . . . , would take . . . Ocella . . . back to
[Ameriprise] and have her withdraw her money so that he could use it.
The broker suggested Ocella . . . deposit her money in an account
which would require three signatures, Ocella[’s,] . . . [mine], and
Wyoming[’s] . . . , to withdraw any of the money. Ocella . . . took
the . . . broker’s advice and opened her savings accounts requiring all
three signatures to make any withdrawals.
6
It was never the intention of Ocella . . . to create or open a Joint
Tenan[cy] Account with Right[s] of Survivorship with
Wyoming . . . . Ocella . . . developed Alzheimer’s Disease and never
changed her accounts at Ameriprise . . . before she died of Alzheimer’s
on April 1, 2013.
(Emphasis omitted.)
In her response to Cooper’s motion to dismiss, Wyoming asserted that the
Ameriprise accounts constituted non-probate assets as a matter of law, and they were
not part of Ocella’s estate. According to Wyoming, the accounts were created by an
agreement signed by Wyoming, Ocella, and Cooper and the accounts listed the
“owners of the accounts as Ocella[,] . . . Cooper[,] and Wyoming, Joint Tenancy
with Right[s] of Survivorship.” “Because the[] accounts [were] Joint Tenancy
[Accounts] with Rights of Survivorship, they [were] non-probate assets” and the
probate court did not have jurisdiction over Wyoming’s suit. Wyoming requested
that Cooper’s motion to dismiss be denied.
Wyoming attached to her response the affidavit of Roxanne Paskoff, a Service
Legal Specialist for Ameriprise. In her affidavit, Paskoff testified as to the
Ameriprise accounts as follows:
• “Each of the . . . accounts were created by the listed account holders
Ocella . . . ; Wyoming . . . ; and . . . Cooper”;
• “Each of the[] accounts w[ere] created in 2002”;
• “Each of th[e] accounts were created as Joint Tenancy with [R]ight[s]
[of] [S]urvivorship (JTWROS)”; and
7
• “The[] accounts ha[d] been held as Joint [T]enancy with Right[s] [of]
Survivorship in accordance with the original agreement establishing the
accounts since 2002.”
Wyoming also attached her affidavit, in which she stated, in part:
2. In the year 2002, my mother, Ocella . . . , and my
brother[,] . . . Cooper[,] and myself, signed agreements that established
accounts to Ameriprise.
. . . .
4. When we created the[] accounts, it was explained to us that they
were Joint Tenancy with Rights of Survivorship, and we all accepted
the[] terms by signing the agreement and creating the accounts.
5. In addition to signing the Joint Tenancy with Right[s] [of]
Survivorship agreement, the statements on each account s[t]ate[] they
are JTWROS.
The trial court denied Cooper’s motion to dismiss.
Wyoming then moved for summary judgment on her claims for a declaratory
judgment and partition of property, arguing that she was entitled to judgment as a
matter of law because Wyoming, Cooper, and Ocella had entered into a contract on
January 28, 2002 establishing Joint Tenancy Accounts with Rights of Survivorship
with Ameriprise, the Ameriprise accounts were held at Ameriprise as joint tenancy
accounts with rights of survivorship since their creation in 2002, upon the death of
Ocella in 2013, both Wyoming and Cooper owned a one-half interest in the
Ameriprise accounts as a matter of contract law, and although Cooper claimed that
the funds in the Ameriprise accounts belonged to Ocella’s estate, Texas law was
8
“clear that accounts held Joint Tenan[cy] with Rights of Survivorship [were]
[n]on-[p]robate [a]ssets.” (Internal quotations omitted.) Wyoming requested that
the trial court declare her right to her interest in the Ameriprise accounts and order
a partition of the property.
Wyoming attached to her motion various exhibits, including her affidavit, in
which she stated, in part:
2. In the year 2002, my mother, Ocella . . . , and my
brother, . . . Cooper[,] and myself[] signed agreements that established
joint tenancy with rights [of] survivorship accounts, with [Ameriprise].
3. When we created the[] accounts, it was explained to us and we
understood that they were Joint Tenancy with Rights of Survivorship.
We all accepted the[] terms by signing the agreement to create the
accounts.
4. I have reviewed the attached copies of the original contract
creating Joint Tenancy [Accounts] with Rights [of] Survivorship with
3 signatures. One is my own. One signature I recognize as that of my
mother, Ocella . . . . The third signature I recognize as that of my
brother, . . . Cooper.
. . . .
6. The accounts created were Ameriprise [a]ccounts 2133 and
3133.
7. These accounts are held Joint Tenancy with Rights of
Survivorship.
. . . .
9. My mother during her lifetime received monthly statements of
these accounts from Ameriprise. My [b]rother, . . . Cooper[,] and I
received statements every month which reflect these account numbers
9
and values. Each of the[] monthly statements have written on them that
they are held as “Joint Tenancy with Rights of Survivorship.” My
brother, . . . Cooper[,] has never complained about this status in all the
years of serving as my mother’s guardian when she was alive; or since
he has been [a]dministrator [o]f her estate[.] My [b]rother only
contested the status of the[] accounts once I filed my [p]robate
[c]ontest.[]
Wyoming also attached the 2002 account application for the Ameriprise accounts,
which lists Ocella, Wyoming, and Cooper as account owners and states as the
“[a]ccount [t]ype”: “Joint Rights of Survivorship.” The account application is
signed by Ocella, Wyoming, and Cooper. And Wyoming attached “[a]ccount
excerpts” which list the names of Ocella, Wyoming, and Cooper on the Ameriprise
accounts and include the notation “JT WROS.”2
Finally, Wyoming attached the
affidavit of Paskoff, a Service Legal Specialist for Ameriprise, who testified:
• “Each of the . . . [Ameriprise] accounts were created by the listed
account holders Ocella . . . ; Wyoming . . . ; and . . . Cooper”;
• “Each of the[] [Ameriprise] accounts w[ere] created in 2002”;
• “Each of th[e] [Ameriprise] accounts were created as Joint Tenancy
with [R]ight[s] of [S]urvivorship (JTWROS)”; and
• “The[] [Ameriprise] accounts ha[d] been held as Joint [T]enancy with
Right[s] [of] Survivorship in accordance with the original agreement
establishing the accounts since 2002.”
2 See William Marsh Rice Univ. v. Birdwell, 624 S.W.2d 661, 663 (Tex. App.—
Houston [14th Dist.] 1981, no writ) (noting “JTWROS” means joint tenancy with
rights of survivorship).
10
In his response to Wyoming’s summary-judgment motion, Cooper asserted
that Ocella died in April 2013, “leaving a valid, unrevoked [l]ast [w]ill and
[t]estatment, which was being probated” in the probate court. Ocella’s will left “her
entire estate to her five . . . children in equal amounts.” According to Cooper, Ocella
and her husband, Mitchell, sold some real estate they had owned for many years and
deposited their money from the sale of their land in several different bank accounts.
After Mitchell’s death, Wyoming told Ocella that Ocella’s son, Jimmy, “was using
her bank accounts as security for his lines of credit for his businesses.” Wyoming
suggested to Cooper that they “take . . . Ocella . . . to various banks where [Ocella]
had her money deposited and help her withdraw her money . . . and deposit it in the
financial institution which is now known as Ameriprise.” When Ocella, Wyoming,
and Cooper went to Ameriprise, they discussed their “fear with the broker
that . . . Jimmy . . . would take” Ocella back to Ameriprise and “have her withdraw
her money so that he could use it because she was easily influenced by him.” “The
broker suggested that Ocella . . . deposit her money in an account which would
require” the signatures of Ocella, Wyoming, and Cooper “to withdraw any of the
money.” Ocella “took the . . . broker’s advice and opened her savings account
requiring all three signatures to make any withdrawals.” Cooper asserted that “[i]t
was never the intention of Ocella” or Cooper “to create or open a Joint Tenan[cy]
Account with Right[s] of Survivorship with Wyoming.” And “[n]o such agreement
11
was ever signed or agreed to” that “establish[ed] and
maint[ained] . . . Ocella[’s] . . . accounts of her money she deposited in Ameriprise”
to be “Joint Tenancy [Accounts] with Right[s] of Survivorship.” According to
Cooper, Wyoming had failed to show that she was entitled to judgment as a matter
of law on her claims for a declaratory judgment and partition of property because
genuine issues of material fact existed as to whether the Ameriprise accounts were
“Joint Tenancy Account[s] with Right[s] of Survivorship.”
To his response, Cooper attached various exhibits, including his affidavit, in
which he stated:
2. Ocella . . . and her late husband, Mitchell . . . , sold some real
estate that they had owned for many years. They deposited their money
from the sale of their land in several different bank savings accounts.
After Ocella[’s] . . . late husband, Mitchell . . . , died in 1989,
Ocella . . . was told by Wyoming . . . that her son, Jimmy . . . , was
using her bank accounts as security for his lines of credit for his
businesses. . . . Wyoming . . . found out that Jimmy . . . was
using . . . Ocella[’s] . . . money for his businesses and suggested to
me . . . that we should take . . . Ocella . . . to various banks where she
had her money deposited and help her withdraw her money from the
various banks and deposit it in the financial institution which is now
known as Ameriprise . . . .
When on January 28, 2002, . . . Wyoming[,] . . . [I], and
Ocella . . . went to Ameriprise . . . to make the deposits, we discussed
our fears with the broker that . . . Ocella[’s] son, Jimmy . . . , would
take . . . Ocella . . . back . . . and have her withdraw her money so that
he could use it for his businesses because she was easily influenced by
him. The broker suggested that Ocella . . . deposit her money in an
account which would require three signatures, Ocella[’s,] . . . [mine,]
and Wyoming[’s] . . . , to withdraw any of the money. We took
12
the . . . broker’s advice and open[ed] [Ocella’s] savings account
requiring all three signatures to make any withdrawals.
It was never the intention of Ocella . . . and . . . [me] to create or
open a [J]oint [A]ccount with Right[s] of Survivorship with
Wyoming . . . .
3. Ocella . . . had been diagnosed and suffering from Alzheimer’s
Disease for several years and never changed her accounts at
Ameriprise . . . before she died of Alzheimer’s on April 1, 2013.
4. Ocella . . . did not execute or sign any contract or agreement on
January 28, 2002, because she was an incapacitated person and was not
mentally competent to execute a contract or agreement on January 28,
2002.
5. . . . Wyoming . . . is not a joint owner of any accounts deposited
with Ameriprise . . . . Wyoming is not a Joint Tenan[cy] Owner with
Right[s] of Survivorship along with Ocella . . . and . . . [me].
6. Ocella . . . was adjudged and declared to be an incapacitated
person on March 6, 2002, after a competency hearing in Probate Court
No. 4 of Harris County . . . . The Judge of Probate Court No. 4
appointed Scott Boates as Temporary Guardian of the Person and Estate
of Ocella . . . .
. . . .
9. On April 8, 2002, . . . [I] filed [an] Application for Appointment
of Permanent Guardian of the Person and Estate of Ocella . . . .
. . . .
11. On September 18, 2006, . . . [I] was appointed Permanent
Guardian of Ocella . . . .
12. Ocella . . . died on April 1, 2013, leaving a valid, unrevoked
[l]ast [w]ill and [t]estament in which she willed her entire estate to her
five children, Donald Ray Cooper, Jimmy . . . , [me],
Wyoming . . . , and Wardrisha Cooper-Jackson. The [w]ill is being
13
probated in Probate Court Number Two (2) of Harris County . . . under
[c]ause [n]o. 427,635.
It was never the intention of Ocella . . . to create or open a Joint
Tenan[cy] Account with Right[s] of Survivorship with
Wyoming . . . because she was not mentally competent, due to her
suffering from Alzheimer’s Disease. She died of complications of
[b]lunt [t]rauma [f]racture of the [l]eft [f]emur on April 1, 2013.
After a hearing, the trial court granted Wyoming summary judgment on her
claims for a declaratory judgment and partition of property. The trial court declared
that the Ameriprise accounts were “[n]on-[p]robate [a]ssets as set out in Texas
Estate[s] Code [section] 111.001” and ordered that Wyoming was “authorized to
withdraw her one-half interest separate from that of . . . Cooper.” The trial court
denied Wyoming’s request for attorney’s fees.
Cooper filed a motion for new trial, which the trial court denied.
Subject-Matter Jurisdiction
In his first issue, Cooper argues that the trial court erred in denying his motion
to dismiss because the trial court lacked subject-matter jurisdiction over Wyoming’s
suit for a declaratory judgment and partition of property.
Whether a trial court has subject-matter jurisdiction is a question of law that
we review de novo. Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476
(Tex. 2012); Trimble v. Fed. Nat’l Mortg. Ass’n, 516 S.W.3d 24, 28 (Tex. App.—
Houston [1st Dist.] 2016, pet. denied). If the trial court lacks subject-matter
14
jurisdiction, an appellate court must reverse the trial court’s judgment and dismiss
the case. Trimble, 516 S.W.3d at 28.
Cooper argues that the trial court lacked subject-matter jurisdiction over
Wyoming’s suit because Ocella died in April 2013, Cooper “filed [Ocella’s] will in
the [p]robate [c]ourt” on December 31, 2013, Cooper was “appointed Successor
Dependent Administrator of the will on July 9, 2014,” and when Wyoming filed her
suit for a declaratory judgment and partition of property, “jurisdiction had already
attached” in the probate court, where Ocella’s will was being probated.
Parties to a joint account may make a valid and enforceable written agreement
that the funds deposited in the account will belong to the survivor. See Stauffer v.
Henderson, 801 S.W.2d 858, 860–61 (Tex. 1990); see also In re Estate of Little, No.
05-18-00704-CV, 2019 WL 3928755, at *9 (Tex. App.—Dallas Aug. 20, 2019, pet.
denied) (mem. op.) (“Sums remaining in a survivorship account after the death of
one of the parties belong to the surviving party.”). Texas Estates Code section
113.151 governs the creation of rights of survivorship in a joint account. See TEX.
EST. CODE ANN. § 113.151.
The creation of rights of survivorship in a joint account requires: (1) a written
agreement, (2) signed by the decedent, (3) which makes her interest “survive” to the
other party. Hare v. Longstreet, 531 S.W.3d 922, 925 (Tex. App.—Tyler 2017, no
pet.) (internal quotations omitted); Mims-Brown v. Brown, 428 S.W.3d 366, 371–72
15
(Tex. App.—Dallas 2014, no pet.) (internal quotations omitted); Kennemer v. Fort
Worth Comm. Credit Union, 335 S.W.3d 843, 846 (Tex. App.—El Paso 2011, pet.
denied) (internal quotation omitted); see also Dickerson v. Brooks, 727 S.W.2d 652,
653 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.) (in order for account to
be “a joint tenancy with rights of survivorship” “there must be a written agreement
signed by the decedent, and the agreement must provide that upon the death of any
party, the interest of the deceased survives to the other party”). All that is required
to make an interest “survive” to another party is a word or phrase expressing that the
interest of the deceased party will survive to the surviving party. Mims-Brown, 428
S.W.3d at 373 (internal quotations omitted); In re Estate of Wilson, 213 S.W.3d 491,
494–95 (Tex. App.—Tyler 2006, pet. denied); see also Dickerson, 727 S.W.2d at
653 (“Language to the effect that ‘the account is held as joint tenants with rights of
survivorship’ is sufficient to create a valid survivorship agreement.”).
Notably, the written agreement is determinative of the existence of rights of
survivorship in a joint account, and if the written agreement is complete and
unambiguous, then extrinsic evidence is inadmissible to vary, add to or contradict
its terms. Stauffer, 801 S.W.2d at 863; Kirkpatrick v. Cusick, No. 13-13-00149-CV,
2013 WL 6730049, at *5 (Tex. App.—Corpus Christi–Edinburg Dec. 19, 2013, pet.
denied) (mem. op.); Banks v. Browning, 873 S.W.2d 763, 765 (Tex. App.—Fort
Worth 1994, writ denied). Compliance with the requirements for the creation of
16
rights of survivorship results in ownership by the remaining joint account holders
after one dies. See Stauffer, 801 S.W.2d at 860–61; Hare, 531 S.W.3d at 926.
Here, the account application for the Ameriprise accounts lists three owners:
Ocella, Wyoming, and Cooper. The account application is signed by Ocella,
Wyoming, and Cooper. See, e.g., In re Estate of Dellinger, 224 S.W.3d 434, 438–
39 (Tex. App.—Dallas 2007, no pet.) (account application signed by decedent). As
to the “[a]ccount [t]ype,” the application states: “Joint Rights of Survivorship.” See
Hare, 531 S.W.3d at 926 (explaining “a joint account with right[s] of survivorship
can be established by placing an ‘X’ in the box next to that statement”);
Mims-Brown, 428 S.W.3d at 371–72; Kennemer, 335 S.W.3d at 846–47; see also In
re Estate of Wilson, 213 S.W.3d at 494–95 (holding “an ‘X’ in the box” for “Joint
with Right[s] of Survivorship” was sufficient to create joint account with rights of
survivorship (second internal quotations omitted)); Banks, 873 S.W.2d at 765. The
three elements required to create rights of survivorship in a joint account are met,
and we conclude that the Ameriprise accounts constitute joint accounts with rights
of survivorship.
A joint account with rights of survivorship is not part of a decedent’s estate
and passes outside of probate proceedings. See TEX. EST. CODE ANN. §§ 113.151,
113.158; In re Estate of Little, 2019 WL 3928755, at *6; In re Estate of Perez-Muzza,
446 S.W.3d 415, 422 (Tex. App.—San Antonio 2014, pet. denied); Mims-Brown,
17
428 S.W.3d at 376 n.4 (“A multi-party account such as a . . . joint tenancy with
right[s] of survivorship account is a non-probate asset that passes independently of
an estate . . . .”); In re Ernst, No. 04-10-00319-CV, 2011 WL 192654, at *2 (Tex.
App.—San Antonio Jan. 12, 2011, no pet.) (mem. op.); see also William Marsh Rice
Univ. v. Birdwell, 624 S.W.2d 661, 663 (Tex. App.—Houston [14th Dist.] 1981, no
writ) (Texas Estates Code provides that “where a party who later dies has signed a
written agreement, sums in a joint account at the death of the party will pass to the
surviving party rather than to the estate of the [d]ecedent”). This is because the sums
remaining in a joint account with rights of survivorship belong to the surviving party,
making the “[t]ransfer[] resulting” upon the death of one account owner
non-testamentary in nature. See TEX.EST.CODE ANN. §§ 113.151, 113.158; see also
In re Estate of Perez-Muzza, 446 S.W.3d at 422. And as such “the personal
representative of the decedent’s estate has no authority with respect to” the joint
account with rights of survivorship. See In re Estate of Perez-Muzza, 446 S.W.3d
at 422.
Cooper argues that the probate court, where Ocella’s will was being probated,
rather than the trial court in this case, had jurisdiction over Wyoming’s suit for a
declaratory judgment and partition of property because the probate court had the
“power to hear all matters incident to an estate.” (Internal quotations omitted.)
18
The probate court is a statutory probate court. See TEX. GOV’T CODE ANN.
§ 25.1031(c)(2) (Harris County Probate Court No. 2 is “statutory probate court”);
see also In re Jacky, 506 S.W.3d 550, 554 (Tex. App.—Houston [1st Dist.] 2016,
orig. proceeding) (Harris County has statutory probate courts). A statutory probate
court has exclusive original jurisdiction over probate proceedings. See TEX. EST.
CODE ANN. §§ 32.001(a), 32.002(c), 32.005(a); see also Chevriere v. Mitchell, No.
01-18-00761-CV, 2019 WL 1996498, at *1 (Tex. App.—Houston [1st Dist.] May 7,
2019, no pet.) (mem. op.) (“Harris County’s statutory probate court has
subject-matter jurisdiction over probate proceedings.”). Texas Estates Code section
31.001 defines a “probate proceeding.” See TEX. EST. CODE ANN. § 31.001 (internal
quotations omitted). Additionally, unless another court has concurrent jurisdiction,
any matter related to a probate proceeding must be brought in the statutory probate
court. See TEX. EST. CODE ANN. § 32.005(a). Texas Estates Code section 31.002
defines “a matter related to a probate proceeding.” TEX. EST. CODE ANN. § 31.002.
Here, Wyoming’s suit for a declaratory judgment and partition of property
related to the Ameriprise accounts—joint accounts with rights of survivorship—
does not fall into one of the statutorily defined categories of a “probate proceeding”
or “a matter related to a probate proceeding.” See TEX. EST. CODE ANN. §§ 31.001
(internal quotations omitted), 31.002. A review of Wyoming’s pleadings shows that
she sued Cooper personally and not in his capacity as a personal representative of
19
Ocella’s estate. And Wyoming only sought certain declarations and a partition of
property related to the Ameriprise accounts—joint accounts with rights of
survivorship that were non-probate assets and not part of Ocella’s estate. See, e.g.,
Rowsey v. Matetich, No. 03-08-00727-CV, 2010 WL 3191775, at *7 (Tex. App.—
Austin Aug. 12, 2010, no pet.) (mem. op.) (district court, not probate court, had
jurisdiction over suit where property at issue was owned as joint tenancy with rights
of survivorship, was non-probate asset, and was governed by portion of Texas
Estates Code concerning non-testamentary transfers).
Although Cooper asserts that Wyoming’s suit constitutes a “matter[] incident
to an estate,”3
an action or suit is “incident to an estate” when the outcome will have
a direct bearing on the collection, assimilation, or distribution of the decedent’s
estate. (Internal quotations omitted.) See English v. Cobb, 593 S.W.2d 674, 676
(Tex. 1979) (internal quotations omitted); Pullen v. Swanson, 667 S.W.2d 359, 362
(Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (internal quotations
omitted). Such is not the case here.
3
In making his assertion, Cooper appears to be referring to repealed Texas Probate
Code sections 5(f) or 5(h), which stated: “[a]ll courts exercising original probate
jurisdiction shall have the power to hear all matters incident to an estate” and “[a]
statutory probate court has jurisdiction over any matters appertaining to an estate or
incident to an estate.” TEX. PROB. CODE ANN. § 5(f), (h) (repealed 2011); see also
Dailey v. McAfee, No. 01-18-01060-CV, 2020 WL 4758429, at *3 & n.3 (Tex.
App.—Houston [1st Dist.] Aug. 18, 2020, no pet.) (mem. op.) (noting when probate
court used phrase “incident to an estate,” it was referring to Texas Probate Code
sections 5(f) or 5(h), which were repealed in 2011 (internal quotations omitted)).
20
Although the probate court did not have subject-matter jurisdiction over
Wyoming’s suit, the trial court—the 164th District Court of Harris County—did
have jurisdiction over her suit for a declaratory judgment and partition of property.
See TEX.CONST. art. V, § 8; TEX. GOV’T CODE ANN. §§ 24.007–.008; Subaru of Am.,
Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002) (“Courts of
general jurisdiction presumably have subject[-]matter jurisdiction unless a contrary
showing is made.”); Estate of Giddens, No. 06-17-00077-CV, 2018 WL 792273, at
*4 (Tex. App.—Texarkana 2018, pet. denied) (mem. op.) (district court has general
jurisdiction over all matters unless exclusive jurisdiction given to another court or
administrative body); In re Amoco Fed. Credit Union, 506 S.W.3d 178, 183 (Tex.
App.—Tyler 2016, orig. proceeding) (district courts have jurisdiction over all claims
for declaratory relief); Eris v. Giannakopoulos, 369 S.W.3d 618, 620–21 (Tex.
App.—Houston [1st Dist.] 2012, pet. dism’d) (Texas Property Code section 23.002
grants district courts jurisdiction over partition actions). Thus, we hold that the trial
court did not err in denying Cooper’s motion to dismiss.
We overrule Cooper’s first issue.
We note that in connection with Cooper’s first issue, Cooper, in three
sentences in his brief, asserts that Wyoming’s “suit should [have] be[en] dismissed
because the four-year statute of limitation[s] had already run
when . . . Wyoming . . . filed her suit in the [trial] court.”
21
Texas Rule of Appellate Procedure 38.1(i) requires that an appellant’s brief
“contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). “This is not done
by merely uttering brief conclusory statements, unsupported by legal citations.”
Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.
App.—Houston [1st Dist.] 2002, pet. denied); see also Barham v. Turner Constr.
Co. of Tex., 803 S.W.2d 731, 740 (Tex. App.—Dallas 1990, writ denied) (appellant
bears burden of discussing his assertions of error). The failure to provide substantive
analysis of an issue or cite appropriate authority waives a complaint on appeal.
Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San
Antonio 2011, no pet.); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas
2006, no pet.); Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs., 221
S.W.3d 244, 255 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Thus, to the extent that Cooper attempts to argue in connection with his first
issue that the trial court erred in denying his motion to dismiss because “the four-year
statute of limitation[s] had already run,” we hold that Cooper has waived his
complaint because of inadequate briefing. See TEX. R. APP. P. 38.1(i); Richardson
v. Marsack, No. 05-18-00087-CV, 2018 WL 4474762, at *1 (Tex. App.—Dallas
Sept. 19, 2018, no pet.) (mem. op.) (“Our appellate rules have specific requirements
for briefing,” including requiring “appellants to state concisely their complaints, to
22
provide succinct, clear, and accurate arguments for why their complaints have merit
in law and fact, to cite legal authority that is applicable to their complaints, and to
cite appropriate references in the record.”); Huey, 200 S.W.3d at 854 (“We have no
duty to brief appellant’s issue for [him]. Failure to cite to applicable authority or
provide substantive analysis waives an issue on appeal.”); see also Mansfield State
Bank v. Cohen, 573 S.W.2d 181, 184–85 (Tex. 1978) (“Litigants who represent
themselves must comply with the applicable procedural rules . . . .”); Robinson &
Harrison Poultry Co. v. Galvan, 323 S.W.3d 236, 247 (Tex. App.—Corpus Christi–
Edinburg 2010, no pet.) (appellant’s complaint plaintiff’s claim barred by four-year
statute of limitations waived because “contention [was] not supported by clear and
concise arguments with appropriate citations to authorities and to the record and
[was], thus, inadequately briefed”).
Summary Judgment
In his second issue, Cooper argues that the trial court erred in granting
Wyoming summary judgment on her claims for a declaratory judgment and partition
of property because the Ameriprise accounts belonged to Ocella’s estate.
We have already concluded that the Ameriprise accounts are joint accounts
with rights of survivorship, which constitute non-probate assets that are not part of
Ocella’s estate. Thus, we hold that the trial court did not err in granting Wyoming
summary judgment.
23
We overrule Cooper’s second issue.
New Trial
In his third issue, Cooper argues that the trial court erred “in passing the trial
on [the] merits and denying [Cooper’s] motion for new trial” because “[t]here were
still contested issues,” Wyoming “attempt[ed] to avoid a trial on the merits by filing”
a summary-judgment motion, and Cooper did not “do any discovery because he
[was] . . . spend[ing] all of his time filing [o]bjections and responding” to
Wyoming’s summary-judgment motion.
As discussed above, Texas Rule of Appellate Procedure 38.1(i) requires that
an appellant’s brief “contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i).
“This is not done by merely uttering brief conclusory statements, unsupported by
legal citations.” Tesoro Petroleum, 106 S.W.3d at 128; see also Barham, 803
S.W.2d at 740 (appellant bears burden of discussing his assertions of error). The
failure to provide substantive analysis of an issue or cite appropriate authority waives
a complaint on appeal. Marin Real Estate Partners, 373 S.W.3d at 75; Huey, 200
S.W.3d at 854; Cervantes-Peterson, 221 S.W.3d at 255.
Cooper cites no authority and provides no substantive analysis to support his
complaint that the trial court erred “in passing the trial on [the] merits and denying
[his] motion for new trial.” See Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—
24
El Paso 2007, no pet.) (appellate court has no duty or right to perform independent
review of record and applicable law to determine whether there was error); Sullivan
v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.—Dallas 1995, writ denied)
(points not supported by argument and authority are waived). Thus, we hold that he
has waived his third issue because of inadequate briefing. See M&E Endeavors LLC
v. Air Voice Wireless LLC, Nos. 01-18-00852-CV, 01-19-00180-CV, 2020 WL
5047902, at *7 (Tex. App.—Houston [1st Dist.] Aug. 27, 2020, no pet.) (mem. op.)
(“[T]he briefing requirements are mandatory . . . .”); Huey, 200 S.W.3d at 854 (“We
have no duty to brief appellant’s issue for [him]. Failure to cite to applicable
authority or provide substantive analysis waives an issue on appeal.”); see also
Mansfield State Bank, 573 S.W.2d at 184–85 (“Litigants who represent themselves
must comply with the applicable procedural rules . . . .”).
Attorney’s Fees
In her appellee’s brief, Wyoming argues that the trial court erred in denying
her request for attorney’s fees because Texas Civil Practice and Remedies Code
section 37.009 “establishes that a plaintiff in a lawsuit is entitled to costs and
reasonable and necessary attorney[’s] fees as are equitable and just” and Texas Civil
Practice and Remedies Code section 38.001 “establishes that a person may recover
reasonable attorney[’s] fees in addition to the amount of a valid claim and costs when
25
the claim is for an oral or written contract.” Wyoming “asks this [C]ourt to grant
[her] request for attorney’s fees in this case.”
Texas Rule of Appellate Procedure 25.1 states that “[a] party who seeks to
alter the trial court’s judgment or other appealable order must file a notice of appeal.”
TEX. R. APP. P. 25.1(c); see also Frontier Logistics, L.P. v. Nat’l Prop. Holdings,
L.P., 417 S.W.3d 656, 666 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)
(“[A]n appellee in the court of appeals who has not filed a notice of appeal may not
seek to alter the trial court’s judgment in a way that would award the appellee more
relief than the trial court granted the appellee in its judgment”). Thus, under rule
25.1, a party who seeks to alter or amend the trial court’s judgment to include an
award of attorney’s fees must file a notice of appeal. See C3 Commc’ns, LLC v.
Gigabit Techs., LLC, No. 14-19-00730-CV, 2021 WL 2965456, at *4 (Tex. App.—
Houston [14th Dist.] July 15, 2021, no pet. h.) (mem. op.); N.Y. Party Shuttle, LLC
v. Bilello, 414 S.W.3d 206, 218–19 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied). An appellate court may not grant a party who did not file a notice of appeal
more favorable relief than the trial court did. See TEX. R. APP. P. 25.1(c); Locke v.
Briarwood Village, No. 14-17-00113-CV, 2018 WL 5621379, at *4 (Tex. App.—
Houston [14th Dist.] Oct. 30, 2018, no pet.) (mem. op.).
Here, Wyoming did not file a notice of appeal. Thus, she has waived her right
to present her attorney’s fees complaint for appellate review, and we cannot consider
26
her request for attorney’s fees. See TEX. R. APP. P. 25.1; C3 Commc’ns, 2021 WL
2965456, at *4; Locke, 2018 WL 5621379, at *4; Bilello, 414 S.W.3d at 218–19.
Conclusion
We affirm the judgment of the trial court.
Julie Countiss
Justice
Panel consists of Justices Hightower, Countiss, and Guerra.Opinion issued January 13, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00476-CV
———————————
GARY M. COOPER, Appellant
V.
WYOMING COOPER-CLIFTON, Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2017-62396
MEMORANDUM OPINION
Appellant, Gary M. Cooper, challenges the trial court’s denial of his motion
to dismiss and motion for new trial and its rendition of summary judgment in favor
of appellee, Wyoming Cooper-Clifton (“Wyoming”), in Wyoming’s suit against
Cooper for a declaratory judgment and partition of property. In three issues, Cooper
2
contends that the trial court erred in denying his motion to dismiss and motion for
new trial and in granting Wyoming summary judgment.
We affirm.
Background
In her first amended petition, Wyoming alleged that she and Cooper were both
children of Ocella Simmons Cooper (“Ocella”), who died in April 2013. Before her
death, Ocella owned an interest in two Ameriprise Financial Services, LLC
(“Ameriprise”) accounts ending in 2133 and 3133 (the “Ameriprise accounts”).
According to Wyoming, the Ameriprise accounts were created in 2002 as “Joint
Tenancy [Accounts] With Rights [of] Survivorship.” Ocella, Wyoming, and Cooper
were signatories on the Ameriprise accounts and “owners in joint tenancy with rights
[of] survivorship.” Upon Ocella’s death, her interest in the Ameriprise accounts
passed equally to Wyoming and Cooper “as a-matter-of-contract.” Because the
Ameriprise accounts were joint tenancy accounts with rights of survivorship, they
were non-probate assets and not part of Ocella’s estate.
In her suit, Wyoming sought declarations as to the ownership rights of the
Ameriprise accounts, including that the accounts “were established and maintained
as Joint Tenancy [Accounts] With Rights [of] Survivorship,” “one-half of the
interest in the[] [Ameriprise] accounts [that] was held by Ocella . . . , passed equally
to Wyoming . . . and to . . . Cooper as a matter-of-contract upon the death of Ocella,”
3
the Ameriprise accounts were “non-probate asset[s]” under the Texas Estates Code,
“no other persons or estates own[ed] an interest in the [Ameriprise] accounts,” and
Wyoming and Cooper were “each entitled to a one-half interest in” the Ameriprise
accounts. Wyoming also requested a “[c]ourt ordered and [c]ourt monitored
partition of the [Ameriprise] accounts” because she was a co-owner of the accounts,
was entitled to a judgment declaring her right to a one-half interest in the Ameriprise
accounts, and she had difficulty “obtaining and separating her interest from that of”
Cooper. Wyoming requested attorney’s fees under Texas Civil Practice and
Remedies Code sections 37.009 and 38.001.
Cooper answered, generally and specifically denying the allegations in
Wyoming’s petition and asserting various defenses. Cooper also asserted that the
trial court lacked subject-matter jurisdiction over Wyoming’s suit for a declaratory
judgment and partition of property because Ocella’s “[w]ill [was] being probated”
in Probate Court No. 2 of Harris County, Texas (the “probate court”) and the probate
court had already acquired jurisdiction over the subject matter of Wyoming’s suit.
Cooper then moved to dismiss1 Wyoming’s suit for a declaratory judgment
and partition of property, arguing that the trial court lacked subject-matter
1 Cooper titled his motion “First Motion to Dismiss Plaintiff’s Petition for
Declaratory Judgment and Petition for Partition of Property” and “Plea to the
Court’s Lack of Subject Matter Jurisdiction and Jurisdiction of the Parties.” Cooper
also filed a “Supplement to His First Motion to Dismiss Plaintiff’s Petition for
Declaratory Judgment and Petition for Partition of Property.”
4
jurisdiction over Wyoming’s suit because the suit involved the Ameriprise accounts
that were a part of Ocella’s estate and “[j]urisdiction had already been acquired” by
the probate court where Ocella’s will was being probated. Cooper asserted that by
filing her suit, Wyoming was “attempting to go around” the probate court. Because
the probate court was the proper court to “determine the distribution of the funds” in
the Ameriprise accounts, Cooper requested that the trial court dismiss Wyoming’s
suit for lack of subject-matter jurisdiction.
Cooper attached his own affidavit to his motion to dismiss, which stated:
1. This Court lacks subject matter jurisdiction over the
property and parties, both [Wyoming] and [myself], to hear
[Wyoming’s] suit for [d]eclaratory [j]udgment and [p]etition for
[p]artition of [p]roperty.
2. The [j]urisdiction over the property, the subject matter of
[Wyoming’s] suit, and jurisdiction over the parties,
both . . . Wyoming . . . and . . . [myself], are in the Probate Court
Number Two of Harris County . . . under [c]ause [n]umber 427635,
where the [w]ill and [e]state of Ocella . . . is being probated. The
property involved in . . . Wyoming[’s] . . . suit filed in th[e] [trial]
[c]ourt is the property of the [e]state of [Ocella] . . . . [The probate
court] . . . acquired jurisdiction over the subject matter and the parties
on July 9, 2014, when after the [l]ast [w]ill and [t]estament of
Ocella . . . was filed for probate, and after Judge Mike Wood
appointed . . . [me] Successor Dependent Administrator with the Will
Annexed of the Estate of Ocella . . . . Wyoming . . . subjected herself
to the jurisdiction of [the probate court] . . . when she filed her own
Application to be Appointed Independent Executrix of the Will and
Estate of . . . Ocella . . . in 2016, two years after she refused to serve as
Executrix . . . .
Judge Wood . . . denied Wyoming[’s] . . . Application. The
[e]state of Ocella . . . is still being administered in [the probate court]
5
and . . . [I am] still serving as Successor Dependent Administer with the
Will Annexed since being appointed on July 9, 2014.
3. . . . Wyoming . . . is not a co-owner of any accounts
deposited with Ameriprise . . . . Wyoming . . . is not a Joint Tenant
with Right[s] of Survivorship along with
Ocella . . . . Wyoming . . . does not own an undivided one-half (1/2)
interest in the stated financial accounts deposited
with . . . Ameriprise . . . . The financial accounts deposited with
Ameriprise . . . were the accounts of Ocella . . . , which during her
lifetime she deposited her own money. . . . Wyoming . . . never
deposited any of her own money in any of . . . Ocella[’s] . . . accounts
at Ameriprise . . . .
4. Ocella . . . and her late husband, Mitchell Cooper
[(“Mitchell”)], sold some real estate they had owned for many years.
They deposited their money from the sale of their land in several
different bank savings accounts. After . . . Ocella[’s] . . . late husband,
Mitchell . . . , died in 1989, she discovered that her son, Jimmy Lee
Cooper [(“Jimmy”], was using her bank accounts as security for his
lines of credit for his businesses.
. . . Wyoming . . . found out that Jimmy . . . was
using . . . O[c]ella[’s] . . . money for his businesses and suggested that
[she and I] should take . . . Ocella . . . to various banks where she had
her money deposited and helped her withdraw her money from the
various banks and deposit it in the financial institution which is now
known as Ameriprise . . . .
When . . . Wyoming[,] . . . [I], and Ocella . . . went to
Ameriprise . . . , we discussed our fear with the broker
that . . . [Ocella’s] son, Jimmy . . . , would take . . . Ocella . . . back to
[Ameriprise] and have her withdraw her money so that he could use it.
The broker suggested Ocella . . . deposit her money in an account
which would require three signatures, Ocella[’s,] . . . [mine], and
Wyoming[’s] . . . , to withdraw any of the money. Ocella . . . took
the . . . broker’s advice and opened her savings accounts requiring all
three signatures to make any withdrawals.
6
It was never the intention of Ocella . . . to create or open a Joint
Tenan[cy] Account with Right[s] of Survivorship with
Wyoming . . . . Ocella . . . developed Alzheimer’s Disease and never
changed her accounts at Ameriprise . . . before she died of Alzheimer’s
on April 1, 2013.
(Emphasis omitted.)
In her response to Cooper’s motion to dismiss, Wyoming asserted that the
Ameriprise accounts constituted non-probate assets as a matter of law, and they were
not part of Ocella’s estate. According to Wyoming, the accounts were created by an
agreement signed by Wyoming, Ocella, and Cooper and the accounts listed the
“owners of the accounts as Ocella[,] . . . Cooper[,] and Wyoming, Joint Tenancy
with Right[s] of Survivorship.” “Because the[] accounts [were] Joint Tenancy
[Accounts] with Rights of Survivorship, they [were] non-probate assets” and the
probate court did not have jurisdiction over Wyoming’s suit. Wyoming requested
that Cooper’s motion to dismiss be denied.
Wyoming attached to her response the affidavit of Roxanne Paskoff, a Service
Legal Specialist for Ameriprise. In her affidavit, Paskoff testified as to the
Ameriprise accounts as follows:
• “Each of the . . . accounts were created by the listed account holders
Ocella . . . ; Wyoming . . . ; and . . . Cooper”;
• “Each of the[] accounts w[ere] created in 2002”;
• “Each of th[e] accounts were created as Joint Tenancy with [R]ight[s]
[of] [S]urvivorship (JTWROS)”; and
7
• “The[] accounts ha[d] been held as Joint [T]enancy with Right[s] [of]
Survivorship in accordance with the original agreement establishing the
accounts since 2002.”
Wyoming also attached her affidavit, in which she stated, in part:
2. In the year 2002, my mother, Ocella . . . , and my
brother[,] . . . Cooper[,] and myself, signed agreements that established
accounts to Ameriprise.
. . . .
4. When we created the[] accounts, it was explained to us that they
were Joint Tenancy with Rights of Survivorship, and we all accepted
the[] terms by signing the agreement and creating the accounts.
5. In addition to signing the Joint Tenancy with Right[s] [of]
Survivorship agreement, the statements on each account s[t]ate[] they
are JTWROS.
The trial court denied Cooper’s motion to dismiss.
Wyoming then moved for summary judgment on her claims for a declaratory
judgment and partition of property, arguing that she was entitled to judgment as a
matter of law because Wyoming, Cooper, and Ocella had entered into a contract on
January 28, 2002 establishing Joint Tenancy Accounts with Rights of Survivorship
with Ameriprise, the Ameriprise accounts were held at Ameriprise as joint tenancy
accounts with rights of survivorship since their creation in 2002, upon the death of
Ocella in 2013, both Wyoming and Cooper owned a one-half interest in the
Ameriprise accounts as a matter of contract law, and although Cooper claimed that
the funds in the Ameriprise accounts belonged to Ocella’s estate, Texas law was
8
“clear that accounts held Joint Tenan[cy] with Rights of Survivorship [were]
[n]on-[p]robate [a]ssets.” (Internal quotations omitted.) Wyoming requested that
the trial court declare her right to her interest in the Ameriprise accounts and order
a partition of the property.
Wyoming attached to her motion various exhibits, including her affidavit, in
which she stated, in part:
2. In the year 2002, my mother, Ocella . . . , and my
brother, . . . Cooper[,] and myself[] signed agreements that established
joint tenancy with rights [of] survivorship accounts, with [Ameriprise].
3. When we created the[] accounts, it was explained to us and we
understood that they were Joint Tenancy with Rights of Survivorship.
We all accepted the[] terms by signing the agreement to create the
accounts.
4. I have reviewed the attached copies of the original contract
creating Joint Tenancy [Accounts] with Rights [of] Survivorship with
3 signatures. One is my own. One signature I recognize as that of my
mother, Ocella . . . . The third signature I recognize as that of my
brother, . . . Cooper.
. . . .
6. The accounts created were Ameriprise [a]ccounts 2133 and
3133.
7. These accounts are held Joint Tenancy with Rights of
Survivorship.
. . . .
9. My mother during her lifetime received monthly statements of
these accounts from Ameriprise. My [b]rother, . . . Cooper[,] and I
received statements every month which reflect these account numbers
9
and values. Each of the[] monthly statements have written on them that
they are held as “Joint Tenancy with Rights of Survivorship.” My
brother, . . . Cooper[,] has never complained about this status in all the
years of serving as my mother’s guardian when she was alive; or since
he has been [a]dministrator [o]f her estate[.] My [b]rother only
contested the status of the[] accounts once I filed my [p]robate
[c]ontest.[]
Wyoming also attached the 2002 account application for the Ameriprise accounts,
which lists Ocella, Wyoming, and Cooper as account owners and states as the
“[a]ccount [t]ype”: “Joint Rights of Survivorship.” The account application is
signed by Ocella, Wyoming, and Cooper. And Wyoming attached “[a]ccount
excerpts” which list the names of Ocella, Wyoming, and Cooper on the Ameriprise
accounts and include the notation “JT WROS.”2
Finally, Wyoming attached the
affidavit of Paskoff, a Service Legal Specialist for Ameriprise, who testified:
• “Each of the . . . [Ameriprise] accounts were created by the listed
account holders Ocella . . . ; Wyoming . . . ; and . . . Cooper”;
• “Each of the[] [Ameriprise] accounts w[ere] created in 2002”;
• “Each of th[e] [Ameriprise] accounts were created as Joint Tenancy
with [R]ight[s] of [S]urvivorship (JTWROS)”; and
• “The[] [Ameriprise] accounts ha[d] been held as Joint [T]enancy with
Right[s] [of] Survivorship in accordance with the original agreement
establishing the accounts since 2002.”
2 See William Marsh Rice Univ. v. Birdwell, 624 S.W.2d 661, 663 (Tex. App.—
Houston [14th Dist.] 1981, no writ) (noting “JTWROS” means joint tenancy with
rights of survivorship).
10
In his response to Wyoming’s summary-judgment motion, Cooper asserted
that Ocella died in April 2013, “leaving a valid, unrevoked [l]ast [w]ill and
[t]estatment, which was being probated” in the probate court. Ocella’s will left “her
entire estate to her five . . . children in equal amounts.” According to Cooper, Ocella
and her husband, Mitchell, sold some real estate they had owned for many years and
deposited their money from the sale of their land in several different bank accounts.
After Mitchell’s death, Wyoming told Ocella that Ocella’s son, Jimmy, “was using
her bank accounts as security for his lines of credit for his businesses.” Wyoming
suggested to Cooper that they “take . . . Ocella . . . to various banks where [Ocella]
had her money deposited and help her withdraw her money . . . and deposit it in the
financial institution which is now known as Ameriprise.” When Ocella, Wyoming,
and Cooper went to Ameriprise, they discussed their “fear with the broker
that . . . Jimmy . . . would take” Ocella back to Ameriprise and “have her withdraw
her money so that he could use it because she was easily influenced by him.” “The
broker suggested that Ocella . . . deposit her money in an account which would
require” the signatures of Ocella, Wyoming, and Cooper “to withdraw any of the
money.” Ocella “took the . . . broker’s advice and opened her savings account
requiring all three signatures to make any withdrawals.” Cooper asserted that “[i]t
was never the intention of Ocella” or Cooper “to create or open a Joint Tenan[cy]
Account with Right[s] of Survivorship with Wyoming.” And “[n]o such agreement
11
was ever signed or agreed to” that “establish[ed] and
maint[ained] . . . Ocella[’s] . . . accounts of her money she deposited in Ameriprise”
to be “Joint Tenancy [Accounts] with Right[s] of Survivorship.” According to
Cooper, Wyoming had failed to show that she was entitled to judgment as a matter
of law on her claims for a declaratory judgment and partition of property because
genuine issues of material fact existed as to whether the Ameriprise accounts were
“Joint Tenancy Account[s] with Right[s] of Survivorship.”
To his response, Cooper attached various exhibits, including his affidavit, in
which he stated:
2. Ocella . . . and her late husband, Mitchell . . . , sold some real
estate that they had owned for many years. They deposited their money
from the sale of their land in several different bank savings accounts.
After Ocella[’s] . . . late husband, Mitchell . . . , died in 1989,
Ocella . . . was told by Wyoming . . . that her son, Jimmy . . . , was
using her bank accounts as security for his lines of credit for his
businesses. . . . Wyoming . . . found out that Jimmy . . . was
using . . . Ocella[’s] . . . money for his businesses and suggested to
me . . . that we should take . . . Ocella . . . to various banks where she
had her money deposited and help her withdraw her money from the
various banks and deposit it in the financial institution which is now
known as Ameriprise . . . .
When on January 28, 2002, . . . Wyoming[,] . . . [I], and
Ocella . . . went to Ameriprise . . . to make the deposits, we discussed
our fears with the broker that . . . Ocella[’s] son, Jimmy . . . , would
take . . . Ocella . . . back . . . and have her withdraw her money so that
he could use it for his businesses because she was easily influenced by
him. The broker suggested that Ocella . . . deposit her money in an
account which would require three signatures, Ocella[’s,] . . . [mine,]
and Wyoming[’s] . . . , to withdraw any of the money. We took
12
the . . . broker’s advice and open[ed] [Ocella’s] savings account
requiring all three signatures to make any withdrawals.
It was never the intention of Ocella . . . and . . . [me] to create or
open a [J]oint [A]ccount with Right[s] of Survivorship with
Wyoming . . . .
3. Ocella . . . had been diagnosed and suffering from Alzheimer’s
Disease for several years and never changed her accounts at
Ameriprise . . . before she died of Alzheimer’s on April 1, 2013.
4. Ocella . . . did not execute or sign any contract or agreement on
January 28, 2002, because she was an incapacitated person and was not
mentally competent to execute a contract or agreement on January 28,
2002.
5. . . . Wyoming . . . is not a joint owner of any accounts deposited
with Ameriprise . . . . Wyoming is not a Joint Tenan[cy] Owner with
Right[s] of Survivorship along with Ocella . . . and . . . [me].
6. Ocella . . . was adjudged and declared to be an incapacitated
person on March 6, 2002, after a competency hearing in Probate Court
No. 4 of Harris County . . . . The Judge of Probate Court No. 4
appointed Scott Boates as Temporary Guardian of the Person and Estate
of Ocella . . . .
. . . .
9. On April 8, 2002, . . . [I] filed [an] Application for Appointment
of Permanent Guardian of the Person and Estate of Ocella . . . .
. . . .
11. On September 18, 2006, . . . [I] was appointed Permanent
Guardian of Ocella . . . .
12. Ocella . . . died on April 1, 2013, leaving a valid, unrevoked
[l]ast [w]ill and [t]estament in which she willed her entire estate to her
five children, Donald Ray Cooper, Jimmy . . . , [me],
Wyoming . . . , and Wardrisha Cooper-Jackson. The [w]ill is being
13
probated in Probate Court Number Two (2) of Harris County . . . under
[c]ause [n]o. 427,635.
It was never the intention of Ocella . . . to create or open a Joint
Tenan[cy] Account with Right[s] of Survivorship with
Wyoming . . . because she was not mentally competent, due to her
suffering from Alzheimer’s Disease. She died of complications of
[b]lunt [t]rauma [f]racture of the [l]eft [f]emur on April 1, 2013.
After a hearing, the trial court granted Wyoming summary judgment on her
claims for a declaratory judgment and partition of property. The trial court declared
that the Ameriprise accounts were “[n]on-[p]robate [a]ssets as set out in Texas
Estate[s] Code [section] 111.001” and ordered that Wyoming was “authorized to
withdraw her one-half interest separate from that of . . . Cooper.” The trial court
denied Wyoming’s request for attorney’s fees.
Cooper filed a motion for new trial, which the trial court denied.
Subject-Matter Jurisdiction
In his first issue, Cooper argues that the trial court erred in denying his motion
to dismiss because the trial court lacked subject-matter jurisdiction over Wyoming’s
suit for a declaratory judgment and partition of property.
Whether a trial court has subject-matter jurisdiction is a question of law that
we review de novo. Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476
(Tex. 2012); Trimble v. Fed. Nat’l Mortg. Ass’n, 516 S.W.3d 24, 28 (Tex. App.—
Houston [1st Dist.] 2016, pet. denied). If the trial court lacks subject-matter
14
jurisdiction, an appellate court must reverse the trial court’s judgment and dismiss
the case. Trimble, 516 S.W.3d at 28.
Cooper argues that the trial court lacked subject-matter jurisdiction over
Wyoming’s suit because Ocella died in April 2013, Cooper “filed [Ocella’s] will in
the [p]robate [c]ourt” on December 31, 2013, Cooper was “appointed Successor
Dependent Administrator of the will on July 9, 2014,” and when Wyoming filed her
suit for a declaratory judgment and partition of property, “jurisdiction had already
attached” in the probate court, where Ocella’s will was being probated.
Parties to a joint account may make a valid and enforceable written agreement
that the funds deposited in the account will belong to the survivor. See Stauffer v.
Henderson, 801 S.W.2d 858, 860–61 (Tex. 1990); see also In re Estate of Little, No.
05-18-00704-CV, 2019 WL 3928755, at *9 (Tex. App.—Dallas Aug. 20, 2019, pet.
denied) (mem. op.) (“Sums remaining in a survivorship account after the death of
one of the parties belong to the surviving party.”). Texas Estates Code section
113.151 governs the creation of rights of survivorship in a joint account. See TEX.
EST. CODE ANN. § 113.151.
The creation of rights of survivorship in a joint account requires: (1) a written
agreement, (2) signed by the decedent, (3) which makes her interest “survive” to the
other party. Hare v. Longstreet, 531 S.W.3d 922, 925 (Tex. App.—Tyler 2017, no
pet.) (internal quotations omitted); Mims-Brown v. Brown, 428 S.W.3d 366, 371–72
15
(Tex. App.—Dallas 2014, no pet.) (internal quotations omitted); Kennemer v. Fort
Worth Comm. Credit Union, 335 S.W.3d 843, 846 (Tex. App.—El Paso 2011, pet.
denied) (internal quotation omitted); see also Dickerson v. Brooks, 727 S.W.2d 652,
653 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.) (in order for account to
be “a joint tenancy with rights of survivorship” “there must be a written agreement
signed by the decedent, and the agreement must provide that upon the death of any
party, the interest of the deceased survives to the other party”). All that is required
to make an interest “survive” to another party is a word or phrase expressing that the
interest of the deceased party will survive to the surviving party. Mims-Brown, 428
S.W.3d at 373 (internal quotations omitted); In re Estate of Wilson, 213 S.W.3d 491,
494–95 (Tex. App.—Tyler 2006, pet. denied); see also Dickerson, 727 S.W.2d at
653 (“Language to the effect that ‘the account is held as joint tenants with rights of
survivorship’ is sufficient to create a valid survivorship agreement.”).
Notably, the written agreement is determinative of the existence of rights of
survivorship in a joint account, and if the written agreement is complete and
unambiguous, then extrinsic evidence is inadmissible to vary, add to or contradict
its terms. Stauffer, 801 S.W.2d at 863; Kirkpatrick v. Cusick, No. 13-13-00149-CV,
2013 WL 6730049, at *5 (Tex. App.—Corpus Christi–Edinburg Dec. 19, 2013, pet.
denied) (mem. op.); Banks v. Browning, 873 S.W.2d 763, 765 (Tex. App.—Fort
Worth 1994, writ denied). Compliance with the requirements for the creation of
16
rights of survivorship results in ownership by the remaining joint account holders
after one dies. See Stauffer, 801 S.W.2d at 860–61; Hare, 531 S.W.3d at 926.
Here, the account application for the Ameriprise accounts lists three owners:
Ocella, Wyoming, and Cooper. The account application is signed by Ocella,
Wyoming, and Cooper. See, e.g., In re Estate of Dellinger, 224 S.W.3d 434, 438–
39 (Tex. App.—Dallas 2007, no pet.) (account application signed by decedent). As
to the “[a]ccount [t]ype,” the application states: “Joint Rights of Survivorship.” See
Hare, 531 S.W.3d at 926 (explaining “a joint account with right[s] of survivorship
can be established by placing an ‘X’ in the box next to that statement”);
Mims-Brown, 428 S.W.3d at 371–72; Kennemer, 335 S.W.3d at 846–47; see also In
re Estate of Wilson, 213 S.W.3d at 494–95 (holding “an ‘X’ in the box” for “Joint
with Right[s] of Survivorship” was sufficient to create joint account with rights of
survivorship (second internal quotations omitted)); Banks, 873 S.W.2d at 765. The
three elements required to create rights of survivorship in a joint account are met,
and we conclude that the Ameriprise accounts constitute joint accounts with rights
of survivorship.
A joint account with rights of survivorship is not part of a decedent’s estate
and passes outside of probate proceedings. See TEX. EST. CODE ANN. §§ 113.151,
113.158; In re Estate of Little, 2019 WL 3928755, at *6; In re Estate of Perez-Muzza,
446 S.W.3d 415, 422 (Tex. App.—San Antonio 2014, pet. denied); Mims-Brown,
17
428 S.W.3d at 376 n.4 (“A multi-party account such as a . . . joint tenancy with
right[s] of survivorship account is a non-probate asset that passes independently of
an estate . . . .”); In re Ernst, No. 04-10-00319-CV, 2011 WL 192654, at *2 (Tex.
App.—San Antonio Jan. 12, 2011, no pet.) (mem. op.); see also William Marsh Rice
Univ. v. Birdwell, 624 S.W.2d 661, 663 (Tex. App.—Houston [14th Dist.] 1981, no
writ) (Texas Estates Code provides that “where a party who later dies has signed a
written agreement, sums in a joint account at the death of the party will pass to the
surviving party rather than to the estate of the [d]ecedent”). This is because the sums
remaining in a joint account with rights of survivorship belong to the surviving party,
making the “[t]ransfer[] resulting” upon the death of one account owner
non-testamentary in nature. See TEX.EST.CODE ANN. §§ 113.151, 113.158; see also
In re Estate of Perez-Muzza, 446 S.W.3d at 422. And as such “the personal
representative of the decedent’s estate has no authority with respect to” the joint
account with rights of survivorship. See In re Estate of Perez-Muzza, 446 S.W.3d
at 422.
Cooper argues that the probate court, where Ocella’s will was being probated,
rather than the trial court in this case, had jurisdiction over Wyoming’s suit for a
declaratory judgment and partition of property because the probate court had the
“power to hear all matters incident to an estate.” (Internal quotations omitted.)
18
The probate court is a statutory probate court. See TEX. GOV’T CODE ANN.
§ 25.1031(c)(2) (Harris County Probate Court No. 2 is “statutory probate court”);
see also In re Jacky, 506 S.W.3d 550, 554 (Tex. App.—Houston [1st Dist.] 2016,
orig. proceeding) (Harris County has statutory probate courts). A statutory probate
court has exclusive original jurisdiction over probate proceedings. See TEX. EST.
CODE ANN. §§ 32.001(a), 32.002(c), 32.005(a); see also Chevriere v. Mitchell, No.
01-18-00761-CV, 2019 WL 1996498, at *1 (Tex. App.—Houston [1st Dist.] May 7,
2019, no pet.) (mem. op.) (“Harris County’s statutory probate court has
subject-matter jurisdiction over probate proceedings.”). Texas Estates Code section
31.001 defines a “probate proceeding.” See TEX. EST. CODE ANN. § 31.001 (internal
quotations omitted). Additionally, unless another court has concurrent jurisdiction,
any matter related to a probate proceeding must be brought in the statutory probate
court. See TEX. EST. CODE ANN. § 32.005(a). Texas Estates Code section 31.002
defines “a matter related to a probate proceeding.” TEX. EST. CODE ANN. § 31.002.
Here, Wyoming’s suit for a declaratory judgment and partition of property
related to the Ameriprise accounts—joint accounts with rights of survivorship—
does not fall into one of the statutorily defined categories of a “probate proceeding”
or “a matter related to a probate proceeding.” See TEX. EST. CODE ANN. §§ 31.001
(internal quotations omitted), 31.002. A review of Wyoming’s pleadings shows that
she sued Cooper personally and not in his capacity as a personal representative of
19
Ocella’s estate. And Wyoming only sought certain declarations and a partition of
property related to the Ameriprise accounts—joint accounts with rights of
survivorship that were non-probate assets and not part of Ocella’s estate. See, e.g.,
Rowsey v. Matetich, No. 03-08-00727-CV, 2010 WL 3191775, at *7 (Tex. App.—
Austin Aug. 12, 2010, no pet.) (mem. op.) (district court, not probate court, had
jurisdiction over suit where property at issue was owned as joint tenancy with rights
of survivorship, was non-probate asset, and was governed by portion of Texas
Estates Code concerning non-testamentary transfers).
Although Cooper asserts that Wyoming’s suit constitutes a “matter[] incident
to an estate,”3
an action or suit is “incident to an estate” when the outcome will have
a direct bearing on the collection, assimilation, or distribution of the decedent’s
estate. (Internal quotations omitted.) See English v. Cobb, 593 S.W.2d 674, 676
(Tex. 1979) (internal quotations omitted); Pullen v. Swanson, 667 S.W.2d 359, 362
(Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (internal quotations
omitted). Such is not the case here.
3
In making his assertion, Cooper appears to be referring to repealed Texas Probate
Code sections 5(f) or 5(h), which stated: “[a]ll courts exercising original probate
jurisdiction shall have the power to hear all matters incident to an estate” and “[a]
statutory probate court has jurisdiction over any matters appertaining to an estate or
incident to an estate.” TEX. PROB. CODE ANN. § 5(f), (h) (repealed 2011); see also
Dailey v. McAfee, No. 01-18-01060-CV, 2020 WL 4758429, at *3 & n.3 (Tex.
App.—Houston [1st Dist.] Aug. 18, 2020, no pet.) (mem. op.) (noting when probate
court used phrase “incident to an estate,” it was referring to Texas Probate Code
sections 5(f) or 5(h), which were repealed in 2011 (internal quotations omitted)).
20
Although the probate court did not have subject-matter jurisdiction over
Wyoming’s suit, the trial court—the 164th District Court of Harris County—did
have jurisdiction over her suit for a declaratory judgment and partition of property.
See TEX.CONST. art. V, § 8; TEX. GOV’T CODE ANN. §§ 24.007–.008; Subaru of Am.,
Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002) (“Courts of
general jurisdiction presumably have subject[-]matter jurisdiction unless a contrary
showing is made.”); Estate of Giddens, No. 06-17-00077-CV, 2018 WL 792273, at
*4 (Tex. App.—Texarkana 2018, pet. denied) (mem. op.) (district court has general
jurisdiction over all matters unless exclusive jurisdiction given to another court or
administrative body); In re Amoco Fed. Credit Union, 506 S.W.3d 178, 183 (Tex.
App.—Tyler 2016, orig. proceeding) (district courts have jurisdiction over all claims
for declaratory relief); Eris v. Giannakopoulos, 369 S.W.3d 618, 620–21 (Tex.
App.—Houston [1st Dist.] 2012, pet. dism’d) (Texas Property Code section 23.002
grants district courts jurisdiction over partition actions). Thus, we hold that the trial
court did not err in denying Cooper’s motion to dismiss.
We overrule Cooper’s first issue.
We note that in connection with Cooper’s first issue, Cooper, in three
sentences in his brief, asserts that Wyoming’s “suit should [have] be[en] dismissed
because the four-year statute of limitation[s] had already run
when . . . Wyoming . . . filed her suit in the [trial] court.”
21
Texas Rule of Appellate Procedure 38.1(i) requires that an appellant’s brief
“contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). “This is not done
by merely uttering brief conclusory statements, unsupported by legal citations.”
Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.
App.—Houston [1st Dist.] 2002, pet. denied); see also Barham v. Turner Constr.
Co. of Tex., 803 S.W.2d 731, 740 (Tex. App.—Dallas 1990, writ denied) (appellant
bears burden of discussing his assertions of error). The failure to provide substantive
analysis of an issue or cite appropriate authority waives a complaint on appeal.
Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San
Antonio 2011, no pet.); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas
2006, no pet.); Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs., 221
S.W.3d 244, 255 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Thus, to the extent that Cooper attempts to argue in connection with his first
issue that the trial court erred in denying his motion to dismiss because “the four-year
statute of limitation[s] had already run,” we hold that Cooper has waived his
complaint because of inadequate briefing. See TEX. R. APP. P. 38.1(i); Richardson
v. Marsack, No. 05-18-00087-CV, 2018 WL 4474762, at *1 (Tex. App.—Dallas
Sept. 19, 2018, no pet.) (mem. op.) (“Our appellate rules have specific requirements
for briefing,” including requiring “appellants to state concisely their complaints, to
22
provide succinct, clear, and accurate arguments for why their complaints have merit
in law and fact, to cite legal authority that is applicable to their complaints, and to
cite appropriate references in the record.”); Huey, 200 S.W.3d at 854 (“We have no
duty to brief appellant’s issue for [him]. Failure to cite to applicable authority or
provide substantive analysis waives an issue on appeal.”); see also Mansfield State
Bank v. Cohen, 573 S.W.2d 181, 184–85 (Tex. 1978) (“Litigants who represent
themselves must comply with the applicable procedural rules . . . .”); Robinson &
Harrison Poultry Co. v. Galvan, 323 S.W.3d 236, 247 (Tex. App.—Corpus Christi–
Edinburg 2010, no pet.) (appellant’s complaint plaintiff’s claim barred by four-year
statute of limitations waived because “contention [was] not supported by clear and
concise arguments with appropriate citations to authorities and to the record and
[was], thus, inadequately briefed”).
Summary Judgment
In his second issue, Cooper argues that the trial court erred in granting
Wyoming summary judgment on her claims for a declaratory judgment and partition
of property because the Ameriprise accounts belonged to Ocella’s estate.
We have already concluded that the Ameriprise accounts are joint accounts
with rights of survivorship, which constitute non-probate assets that are not part of
Ocella’s estate. Thus, we hold that the trial court did not err in granting Wyoming
summary judgment.
23
We overrule Cooper’s second issue.
New Trial
In his third issue, Cooper argues that the trial court erred “in passing the trial
on [the] merits and denying [Cooper’s] motion for new trial” because “[t]here were
still contested issues,” Wyoming “attempt[ed] to avoid a trial on the merits by filing”
a summary-judgment motion, and Cooper did not “do any discovery because he
[was] . . . spend[ing] all of his time filing [o]bjections and responding” to
Wyoming’s summary-judgment motion.
As discussed above, Texas Rule of Appellate Procedure 38.1(i) requires that
an appellant’s brief “contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i).
“This is not done by merely uttering brief conclusory statements, unsupported by
legal citations.” Tesoro Petroleum, 106 S.W.3d at 128; see also Barham, 803
S.W.2d at 740 (appellant bears burden of discussing his assertions of error). The
failure to provide substantive analysis of an issue or cite appropriate authority waives
a complaint on appeal. Marin Real Estate Partners, 373 S.W.3d at 75; Huey, 200
S.W.3d at 854; Cervantes-Peterson, 221 S.W.3d at 255.
Cooper cites no authority and provides no substantive analysis to support his
complaint that the trial court erred “in passing the trial on [the] merits and denying
[his] motion for new trial.” See Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—
24
El Paso 2007, no pet.) (appellate court has no duty or right to perform independent
review of record and applicable law to determine whether there was error); Sullivan
v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.—Dallas 1995, writ denied)
(points not supported by argument and authority are waived). Thus, we hold that he
has waived his third issue because of inadequate briefing. See M&E Endeavors LLC
v. Air Voice Wireless LLC, Nos. 01-18-00852-CV, 01-19-00180-CV, 2020 WL
5047902, at *7 (Tex. App.—Houston [1st Dist.] Aug. 27, 2020, no pet.) (mem. op.)
(“[T]he briefing requirements are mandatory . . . .”); Huey, 200 S.W.3d at 854 (“We
have no duty to brief appellant’s issue for [him]. Failure to cite to applicable
authority or provide substantive analysis waives an issue on appeal.”); see also
Mansfield State Bank, 573 S.W.2d at 184–85 (“Litigants who represent themselves
must comply with the applicable procedural rules . . . .”).
Attorney’s Fees
In her appellee’s brief, Wyoming argues that the trial court erred in denying
her request for attorney’s fees because Texas Civil Practice and Remedies Code
section 37.009 “establishes that a plaintiff in a lawsuit is entitled to costs and
reasonable and necessary attorney[’s] fees as are equitable and just” and Texas Civil
Practice and Remedies Code section 38.001 “establishes that a person may recover
reasonable attorney[’s] fees in addition to the amount of a valid claim and costs when
25
the claim is for an oral or written contract.” Wyoming “asks this [C]ourt to grant
[her] request for attorney’s fees in this case.”
Texas Rule of Appellate Procedure 25.1 states that “[a] party who seeks to
alter the trial court’s judgment or other appealable order must file a notice of appeal.”
TEX. R. APP. P. 25.1(c); see also Frontier Logistics, L.P. v. Nat’l Prop. Holdings,
L.P., 417 S.W.3d 656, 666 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)
(“[A]n appellee in the court of appeals who has not filed a notice of appeal may not
seek to alter the trial court’s judgment in a way that would award the appellee more
relief than the trial court granted the appellee in its judgment”). Thus, under rule
25.1, a party who seeks to alter or amend the trial court’s judgment to include an
award of attorney’s fees must file a notice of appeal. See C3 Commc’ns, LLC v.
Gigabit Techs., LLC, No. 14-19-00730-CV, 2021 WL 2965456, at *4 (Tex. App.—
Houston [14th Dist.] July 15, 2021, no pet. h.) (mem. op.); N.Y. Party Shuttle, LLC
v. Bilello, 414 S.W.3d 206, 218–19 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied). An appellate court may not grant a party who did not file a notice of appeal
more favorable relief than the trial court did. See TEX. R. APP. P. 25.1(c); Locke v.
Briarwood Village, No. 14-17-00113-CV, 2018 WL 5621379, at *4 (Tex. App.—
Houston [14th Dist.] Oct. 30, 2018, no pet.) (mem. op.).
Here, Wyoming did not file a notice of appeal. Thus, she has waived her right
to present her attorney’s fees complaint for appellate review, and we cannot consider
26
her request for attorney’s fees. See TEX. R. APP. P. 25.1; C3 Commc’ns, 2021 WL
2965456, at *4; Locke, 2018 WL 5621379, at *4; Bilello, 414 S.W.3d at 218–19.

Outcome: We affirm the judgment of the trial court.

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