                                        NO. 12-12-00374-CV

                           IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

IN THE ESTATE OF                                     §                 APPEAL FROM THE

RUBY RENEE BYROM,                                    §                 COUNTY COURT

DECEASED                                             §                 CHEROKEE COUNTY, TEXAS

                                        MEMORANDUM OPINION
        Jerry Byrom appeals from the county court’s order for the sale of real property and
appointment of a receiver. In one issue, he contends the county court erred in imposing a
constructive trust on his homestead property and ordering its sale to pay guardian’s fees,
accounting fees, attorney’s fees, and the interest thereon. We affirm.


                                                BACKGROUND1
        Jerry Byrom was appointed executor of the estate of his mother, Ruby Renee Byrom. In
June 2005, Roy Anderson, the temporary guardian of Mrs. Byrom’s estate prior to her death,
filed a $31,992.75 claim against her probate estate for temporary guardian’s fees and attorney’s
fees. Byrom rejected the claim. Byrom also filed an inventory and appraisement of Mrs.
Byrom’s estate. Anderson objected to the inventory claiming that Byrom had omitted assets that
existed at Mrs. Byrom’s death.
        On July 1, 2008, the county court removed Byrom as executor citing gross
mismanagement, misappropriation of funds, and gross misconduct. On August 10, 2009, the
county court granted the joint request of Anderson and Duane Coker2 to impose a constructive
trust on Byrom’s home constructed with estate funds.                    The court ordered Byrom to pay

        1
          For a somewhat more extended recital of the procedural history of this case, see In re Estate of Byrom,
No. 12-09-00279-CV, 2011 WL 590588 (Tex. App.–Tyler Feb. 16, 2011, pet. denied) (mem. op.).
        2
            Coker was the attorney ad litem for Mrs. Byrom in the guardianship proceeding.
$200,000.00 into the court’s registry within thirty days. If Byrom failed to comply with the
court’s order, his home was to be sold to satisfy the estate’s debts.
       Byrom appealed the order to this court asserting, inter alia, that he had no legal notice of
the hearing that resulted in the order impressing a constructive trust on his homestead. See In re
Estate of Byrom, No. 12-09-00279-CV, 2011 WL 590588, at *5 (Tex. App.–Tyler Feb. 16,
2011, pet. denied) (mem. op.). Byrom also maintained that the county court exceeded its
authority in imposing a constructive trust on his homestead and conditionally ordering its sale.
See id. at *6. In all respects pertinent to this appeal, the judgment was affirmed.
       On September 4, 2012, the county court ordered the sale of part of Byrom’s property, and
Byrom appealed.


                                  THE COUNTY COURT’S ORDER
       In his sole issue, Byrom contends the county court erred in imposing a constructive trust
on his homestead property and ordering its sale to pay guardian’s fees, accounting fees,
attorney’s fees, and the interest thereon. Anderson argues that Byrom’s complaints are barred by
res judicata. We agree.
Applicable Law
       The homestead of a family or of a single adult person is exempt from forced sale for the
payment of all debts except for those classes of indebtedness enumerated in Article 16, Section
50(a) of the Texas Constitution. However, “[i]t has long been decided that [the] homestead and
exemption laws of this State were never intended to be, and cannot be, the haven of wrongfully
obtained money or properties.” Baucom v. Texam Oil Corp., 423 S.W.2d 434, 442 (Tex. Civ.
App–El Paso 1967, writ ref’d n.r.e.).       “[T]he homestead protection afforded by the Texas
Constitution was never intended to protect stolen funds. Bransom v. Standard Hardware, 874
S.W.2d 919, 928 (Tex. App.–Fort Worth 1994, writ denied).
       Res judicata bars assertion of a claim in a later case when (1) there is a prior final
determination on the merits in a court of competent jurisdiction, (2) the parties in the second
action are the same or in privity with those in the first action, and (3) the second action is based
on the same claims as were raised or could have been raised in the first action. Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Res judicata precludes the relitigation of
claims that were finally adjudicated “as well as related matters that, with the use of diligence,

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should have been litigated in the prior suit.” Barr v. Resolution Trust Corp., 837 S.W.2d 627,
628 (Tex. 1991). Texas follows the transactional approach to res judicata barring claims arising
out of the transaction or occurrence that is the subject matter of the first suit. State & Cnty. Mut.
Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001).
Discussion
         Byrom contends that the trial court erred in imposing a constructive trust on property he
claims as homestead and in ordering the sale of that property. Byrom raised these same issues in
the prior proceeding between the same parties and arising out of the same facts. This court ruled
adversely to Appellant on both claims. See In re Estate of Byrom, 2011 WL 590588, at *7.
Therefore, the doctrine of res judicata bars the relitigation of Byrom’s claims.
         Moreover, the record indicates that sometime during the course of the litigation, Byrom
admitted that, while executor, he paid for the construction of the home on the subject property
with money from his mother’s estate. Byrom was removed as executor for misappropriation of
funds and gross misconduct. Now, apparently, the estate has no money to pay the claims against
the estate. Byrom wrongfully used the estate’s money to construct the home he now claims as
homestead.      The homestead law does not protect property or funds obtained with money
misappropriated by a fiduciary. See Baucom, 423 S.W.2d at 442; Bransom, 874 S.W.2d at 928.
         Appellant’s sole issue is overruled.


                                                   DISPOSITION
         The judgment of the trial court is affirmed.


                                                               BILL BASS
                                                                 Justice


Opinion delivered July 31, 2013.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                                   (PUBLISH)




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                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                             JULY 31, 2013


                                         NO. 12-12-00374-CV


                IN THE ESTATE OF RUBY RENEE BYROM, DECEASED



                                     Appeal from the County Court
                           of Cherokee County, Texas. (Tr.Ct.No. 10745)



                       THIS CAUSE came to be heard on the appellate record and briefs filed

herein, and the same being considered, it is the opinion of this court that there was no error in the

judgment.

                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged

against the appellant, JERRY BYROM, for which execution may issue, and that this decision

be certified to the court below for observance.

                       Bill Bass, Justice.
                       Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J.,
                       Twelfth Court of Appeals, sitting by assignment.



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