Cosma Dennis and Derrick Dennis v. Sergio L. Vasquez

• Court: Court of Appeals of Texas
• Decided: March 8, 2002
• Docket: 06-01-00023-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-01-00023-CV ______________________________

COSMA DENNIS AND DERRICK DENNIS, Appellants

V.

SERGIO L. VASQUEZ, Appellee

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On Appeal from the County Court at Law No. 3 Fort Bend County, Texas Trial Court No. 17,205

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Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross

O P I N I O N

Sergio Vasquez brought suit against Cosma Dennis for default on a promissory note and against Derrick Dennis, Cosma's brother, as the personal guarantor of the note, for money due under the note. After a bench trial, the court rendered judgment in favor of Vasquez for $21,524.79 and attorney's fees. Cosma and Derrick appeal the judgment, alleging seven points of error.

Cosma and Derrick first contend the court abused its discretion by refusing to allow them to file supplemental answers. Second, Cosma contends the trial court abused its discretion in refusing him the benefit of representation by counsel. In their third point of error, the Dennises contend the trial court erred in denying their motion for new trial. ⁽¹⁾ Derrick contends in the fourth point of error the trial court erred in denying his motion for directed verdict. Fifth, both Cosma and Derrick contend the trial court erred in granting judgment in favor of Vasquez. In the sixth point of error, the Dennises contend Claudio Fernandez was an undisclosed witness and the trial court abused its discretion in permitting him to testify. In the final point of error, Derrick contends the trial court abused its discretion in ruling on Derrick's motion to abate without notice to him and without notice of its ruling on the matter.

Vasquez seeks damages for frivolous appeal under Tex. R. App. P. 45.

In 1993, Vasquez and Cosma entered into a lease agreement, which Derrick cosigned. The lease expired in 1995, and Cosma continued to occupy the premises on a month-to-month basis. In 1997, Cosma fell behind in lease payments and Vasquez filed an eviction proceeding. Vasquez, through his agent, Fernandez, entered into an agreement with Cosma to dismiss the eviction proceeding and reduce the amount due to $12,000.00 in exchange for Cosma's vacating the premises later that month and agreeing to pay the reduced rental balance in installments of $400.00 for thirty months. The promissory note provided that, in the event of default, the full delinquent rent of $19,460.00 would be due, plus reasonable attorney's fees. Derrick signed the promissory note as a personal guarantor.

Cosma defaulted on the promissory note, making only three payments. Vasquez gave Cosma credit for these three payments. This suit was filed after Vasquez demanded payment on the note and Cosma refused to pay. Suit was filed on December 18, 1998. Cosma, acting pro se through trial, filed a general denial in March 1999. Derrick filed a motion to abate and a motion for summary judgment. The trial court denied the motion to abate and never ruled on the motion for summary judgment. On September 22, 2000, four days before trial, Derrick, through his attorney, and Cosma, pro se, filed written requests for leave of court to file supplemental answers. Although the court never expressly ruled on these requests, both Derrick and Cosma filed such answers on that date. The record shows Derrick's "supplemental" answer was his first answer to Vasquez' lawsuit. On the day of trial, Derrick orally sought leave of court to file a second supplemental answer. Again, although the court never expressly ruled on this oral request, the record reflects Derrick filed a second supplemental answer on September 28, 2000, the date the court rendered its judgment.

The judgment rendered was in favor of Vasquez for $21,524.79, plus attorney's fees through trial of $3,177.00, plus $2,500.00 in case of appeal to the court of appeals, and $2,500.00 in case of appeal to the Texas Supreme Court.

In their first point of error, the Dennises contend the trial court erred by refusing to allow them to file supplemental answers. Both Derrick and Cosma sought to file supplemental answers within seven days of trial. On the day of trial, September 26, 2000, after hearing Derrick's oral request for leave to file a second supplemental answer and Vasquez' objection to such answer, the court said, "Well, okay. Let's go ahead. Prove your case."

Parties may amend their pleadings, but if they wish to amend within seven days of trial or thereafter, they must request and obtain leave of court. Tex. R. Civ. P. 63. The trial court made no explicit ruling as to the supplemental answers. We liberally construe Rule 63. Lee v. Key West Towers, Inc., 783 S.W.2d 586, 588 (Tex. 1989); Hoelscher v. GFH Fin. Servs., Inc., 814 S.W.2d 842, 844 (Tex. App.-Dallas 1991, no writ). We presume the court granted leave to file unless the record shows the amended petition was not considered by the court. Lee, 783 S.W.2d at 588. The trial court did not directly deny the filing of the supplemental answers and implicitly granted leave by allowing the Dennises to present evidence that the promissory note was not valid. The trial court granted the Dennises the relief they sought.

In the second point of error, Cosma contends the trial court abused its discretion by refusing to allow him representation of counsel. Cosma complains that, by denying his motion to be represented by counsel, the trial court in effect denied him the opportunity and ability to raise his affirmative defenses. However, Cosma fails to direct this Court to any place in the record where he requested and was denied an opportunity to obtain counsel. See Tex. R. App. P. 38.1(h). Further, we were unable to locate any such request by our own thorough review of the record.

The record does reflect an exchange between the court and Derrick's attorney, Kurt Clarke, concerning whether Clarke was also representing Cosma. Clarke stated to the court he was there to represent Derrick and was only on record as representing Derrick. He further stated, "[I]n the interest of justice, if I have to assist Cosma Dennis, I will," to which the court responded, "[Y]ou can't just up and represent Cosma Dennis, unless he authorizes you." We were unable to locate any place in the record where Cosma authorized Clarke to represent him at trial.

Cosma also fails to cite authority supporting his contention under this alleged point of error. Thus, it is unclear if Cosma is contending he was entitled to appointed counsel or just that the trial court failed to provide him the opportunity to obtain counsel.

A court may appoint counsel for an indigent person in any case. Tex. Gov't Code Ann. § 24.016 (Vernon 1988). However, except in limited circumstances not applicable here, the indigent pro se has no right to an attorney and the decision to appoint one is entrusted to the trial court's discretion. The test is whether the situation is an "exceptional [case in which] public and private interests at stake are such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant." Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). We are unable to find in the record where Cosma demonstrated he was indigent or his case was exceptional.

Regardless of whether Cosma wanted appointed counsel or leave to obtain counsel, he never made either of these requests known to the trial court. He represented himself from the beginning. Until the day of trial, everything filed on his behalf, including his supplemental answer, was filed pro se. Cosma never requested counsel, never announced he had counsel, and never sought leave to seek counsel. This point of error is overruled.

In their third point of error, the Dennises contend the trial court abused its discretion by denying their motion for new trial. They advance five reasons why the trial court should have granted this motion. They first contend the motion should have been granted because the trial court permitted an undisclosed witness, Fernandez, to testify on behalf of Vasquez. They contend this was over their objection and much to their surprise. However, the only objection to Fernandez' testimony came from Derrick's attorney. Cosma made no objection to this testimony. By failing to timely object, Cosma waived this complaint on appeal. Tex. R. App. P. 33.1. Dennis made a timely objection, preserving this point of error for appeal. Id.

Vasquez was under no duty to disclose his witnesses, and there was nothing preventing Fernandez from testifying as a fact witness. There is nothing in the record showing that either Derrick or Cosma conducted any discovery. There were no requests for disclosure or interrogatories submitted to Vasquez, and there was no general order entered by the court requiring disclosure. In the absence of an affirmative duty to disclose a witness, a party has no such duty.

The Dennises' second reason why their motion for new trial should have been granted repeats their first point of error. They again contend the court refused to permit them to file supplemental answers. As discussed above, the court implicitly granted them leave to file supplemental answers.

As his third basis for contending the court erred in denying the motion for new trial, Cosma once again asserts the court's alleged refusal to allow him representation of counsel. As stated above, Cosma did not request counsel and the trial court did not deny him counsel.

The Dennises' fourth reason supporting their contention the court abused its discretion in denying their motion for new trial is that the court erred in finding for Vasquez before the Dennises were afforded the opportunity to present their defenses.

At the close of Vasquez' case, Derrick moved for a directed verdict. After both sides argued the motion, the court overruled it and erroneously proceeded to pronounce judgment in favor of Vasquez. Derrick promptly pointed out to the court that he had not put on any defense. The court indicated it thought Derrick had rested, and then stated: "Fine. From what I heard, I had ruled; but I withdraw that. Okay. You're open to testify. Go ahead."

Although the court mistakenly pronounced judgment in favor of Vasquez, Derrick pointed out the court's error and the court then allowed Derrick and Cosma the opportunity to present their defenses. There was no error.

The court's denial of Derrick's motion for a directed verdict forms the basis of his fifth reason why the court abused its discretion in denying the motion for new trial. Derrick argued in his motion for directed verdict that the evidence was legally and factually insufficient to support a judgment against him.

When, as here, the trial court has made no findings of fact and conclusions of law, we presume it resolved all factual disputes in support of the judgment. Stauffacher v. Lone Star Mud, Inc., 54 S.W.3d 810, 814 (Tex. App.-Texarkana 2001, no pet.); Cartlidge v. Hernandez, 9 S.W.3d 341, 345 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)). When, as here, a reporter's record is available on appeal, the parties may challenge these implied findings by factual sufficiency and legal sufficiency points in the same way they may challenge jury findings or a trial court's findings of fact. LeBlanc v. Kyle, 28 S.W.3d 99, 102 (Tex. App.-Texarkana 2000, pet. denied). When such evidence sufficiency points are raised, the standard of review to be applied is the same as that to be applied in the review of jury findings.

In reviewing legal sufficiency arguments, we must consider the evidence and draw all inferences in the light most favorable to the verdict. See Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex. 1998). In reviewing factual sufficiency arguments, we must consider and weigh all the evidence, and we set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The evidence is legally sufficient to support the judgment. Derrick contends the evidence shows he did not know he was signing the promissory note as a guarantor, but thought he was signing as a witness. In looking at the evidence most favorable to the verdict, we note Cosma testified he "begged" Derrick to sign as a guarantor. We further note Derrick testified he understood that, by signing the note, he was agreeing to personally guarantee payment. Finally, the promissory note unambiguously shows Derrick signed as a guarantor, not as a witness. These facts support the trial court's judgment.

Failure to read a document, without a showing of fraud, is generally not a defense. Estes v. Republic Nat'l Bank, 462 S.W.2d 273, 276 (Tex. 1970); Peters v. Gifford-Hill & Co., 794 S.W.2d 856, 861 (Tex. App.-Dallas 1990, writ denied). Derrick signed the promissory note, testified he can read and write English, and did not plead duress or fraud as a defense. Derrick also admitted signing the promissory note and admitted he understood that, by signing, he was agreeing to personally guarantee payment and the money was to be paid to Vasquez. Vasquez presented evidence he faxed a full copy of the promissory note to Cosma a week before he signed, and there is no evidence Vasquez or his agent, Fernandez, denied Derrick the opportunity to read the promissory note or misled Derrick regarding why he was signing. The evidence was legally sufficient to support the judgment in favor of Vasquez.

The evidence is also factually sufficient to support the judgment. In reviewing factual sufficiency arguments, we consider and weigh all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176. The evidence clearly shows Derrick signed the promissory note and understood what he was signing. In a full review of the record, we found nothing indicating the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The court did not abuse its discretion in overruling the Dennises' motion for new trial.

In the fourth point of error, Derrick contends the trial court erred in denying his motion for directed verdict. In reviewing the denial of a motion for directed verdict for the defendant, the question is whether the evidence adduced at the time the plaintiff rests, viewed in the light most favorable to the plaintiff, raises an issue for the fact-finder. Vance v. My Apartment Steak House, 677 S.W.2d 480, 483 (Tex. 1984); Fibreboard Corp. v. Pool, 813 S.W.2d 658, 678 (Tex. App.-Texarkana 1991, writ denied).

Derrick contends the trial court erred in denying the motion for directed verdict because there is evidence he did not read what he was signing and thought he was signing as a witness. But, as noted above, the general rule is that, in the absence of fraud, a party's failure to read an instrument before signing it is not a ground for avoiding it. Estes, 462 S.W.2d at 276; Peters, 794 S.W.2d at 861. Parties to an arm's-length transaction are charged with a duty to read what they sign. Thigpen v. Locke, 363 S.W.2d 247, 251 (Tex. 1962); Indem. Ins. Co. v. W. L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553, 556 (1937). Derrick contends he did not read the promissory note and thought he was signing as a witness. Although he testified he did not have time to read the note, no evidence was presented that Vasquez or Fernandez in any way prevented him from reading the document or told him they needed him to sign as a witness. In fact, the language of the note itself clearly showed Derrick was signing in the capacity of guarantor. The paragraph above Derrick's signature is titled "Personal Guarantee" and then states, "I, DERRICK DENNIS, do personally guarantee the payment of this note in a timely manner to the Holder, and agree to be bound by the terms of this Note, . . . ." The words "Personal Guarantor" (not "witness") are clearly printed below Derrick's signature.

Vasquez and Fernandez knew in what capacity Derrick was signing, and Cosma testified he "begged" Derrick to sign the note as a guarantor. Derrick admitted signing the promissory note and admitted he understood that, by signing, he was agreeing to personally guarantee payment and the money was to be paid to Vasquez.

Cosma testified he did not have time to read the document before signing. Again, the general rule is that, in the absence of fraud, a party's failure to read an instrument before signing is not a ground for avoiding it. Estes, 462 S.W.2d at 276; Peters, 794 S.W.2d at 861. Derrick points in the record to where Cosma testified he did not have the entire document and did not have the opportunity to read it. This testimony occurred after the trial court denied Derrick's motion for directed verdict. Therefore, we cannot consider this testimony in determining if the trial court erred in denying the motion for directed verdict. See Pool, 813 S.W.2d at 678. The evidence, viewed in a light most favorable to Vasquez at the time the motion was made, clearly raises an issue for the fact-finder.

In the fifth point of error, the Dennises contend the trial court erred in granting judgment in favor of Vasquez because the evidence was legally and factually insufficient to sustain Vasquez' burden of proof. Derrick also contends Vasquez' claim was barred by res judicata.

As discussed above, the evidence is legally and factually sufficient. Further, this case was not barred by the doctrine of res judicata. Derrick raised the defense of res judicata in his second supplemental answer by reliance on the eviction proceedings in the justice of the peace court. The only evidence regarding these proceedings was by testimony of witnesses; neither Derrick nor Cosma presented any evidence of a final adjudication of those proceedings in justice court. Even if full adjudication on the merits had occurred in an action to evict, Vasquez was not barred from bringing this action for default on a promissory note. See Home Sav. Ass'n v. Ramirez, 600 S.W.2d 911, 913 (Tex. Civ. App.-Corpus Christi 1980, writ ref'd n.r.e.) (forcible detainer action does not prohibit filing of related suit in district court); Dews v. Floyd, 413 S.W.2d 800, 805 (Tex. Civ. App.-Tyler 1967, no writ) (forcible detainer proceeding not exclusive, but cumulative of any other remedy a party may have; award for unpaid rent by justice court found void by county court because it exceeded jurisdictional limits of justice court; but such judgment did not preclude suit for other indebtedness under contract from being brought in district court). The claim on the promissory note is not subject to res judicata.

In the sixth point of error, the Dennises contend the trial court erred or abused its discretion by permitting Fernandez, an undisclosed witness, to testify on behalf of Vasquez. As stated above, only Derrick preserved this complaint for appeal, and the trial court did not err in admitting Fernandez' testimony because Vasquez was under no duty to disclose his witnesses.

Derrick further complains Fernandez lacked authority to file the case or appear on behalf of Vasquez. Contrary to Derrick's contention, Fernandez did not file the lawsuit. The pleadings clearly show Vasquez filed the suit, not Fernandez. Further, Vasquez called Fernandez as a fact witness who had relevant information pertinent to the case. This point of error is overruled.

In the final point of error, Derrick contends the trial court abused its discretion in ruling on his motion to abate without notifying him of the hearing and without notifying him of its ruling. Derrick failed to preserve this point for appeal because he did not object to the lack of notification. Tex. R. App. P. 33.1. He did not object at the time he learned of the ruling, on the day of trial, nor did he raise this in his motion for new trial. Derrick did not file a motion for continuance seeking a rehearing on the motion, did not seek to make a record showing he did not receive notice of the hearing, and did not reassert the motion before trial. The order denying the motion to abate was signed February 11, 1999, and the case did not go to trial until September 26, 2000, almost a year and a half later. A party to a suit is charged by law with notice of all orders and judgments rendered therein. Weirich v. Weirich, 833 S.W.2d 942, 946 (Tex. 1992); Pentikis v. Texas Elec. Serv. Co., 470 S.W.2d 387, 390-91 (Tex. Civ. App.-Fort Worth 1971, writ ref'd n.r.e.); Hartman v. Byrd, 47 S.W.2d 659, 661 (Tex. Civ. App.-Texarkana 1932, no writ). All of the Dennises' contentions are overruled.

We have considered Vasquez' request for Rule 45 damages, and such request is denied.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: March 7, 2002

Date Decided: March 8, 2002

Do Not Publish

1. Kurt Clarke, attorney for Derrick at trial, filed one motion for new trial for both Derrick and Cosma.

35 S.W.3d at 639. In this light, courts must not redraft wills to vary or add provisions "under the guise of construction of the language of the will" to reach a presumed intent. Stahl, 610 S.W.2d at 151.

          If the will is unambiguous, the court should not go beyond the specific terms to ascertain the requisite intent. Lang, 35 S.W.3d at 639. If, on the other hand, the meaning of the instrument is uncertain or "reasonably susceptible to more than one meaning," the instrument is ambiguous and extrinsic evidence should be considered to ascertain the testator's intent. See Davis v. Shanks, 898 S.W.2d 285, 286 (Tex. 1995); Eckels v. Davis, 111 S.W.3d 687, 694 (Tex. App.—Fort Worth 2003, pet. denied); Myrick v. Moody, 802 S.W.2d 735, 738 (Tex. App.—Houston [14th Dist.] 1990, writ denied). Evidence of the testator's situation, the surrounding circumstances, and like indicia which enable the court to place itself in the shoes of the testator at the time the document was executed may be admissible. Lang, 35 S.W.3d at 639. This is so because it may facilitate the determination of intent at that time. See id.

Ademption

          "[A]demption describes the extinction of a specific bequest or devise because of the disappearance of or disposition of the subject matter given from the estate of the testator in his lifetime." Stahl, 610 S.W.2d at 148. Unless the testator specifically provides otherwise in the will, the sale or removal of a specific bequest from the estate adeems the devise or bequest. Id. at 150. A will speaks at the time of the testator's death, and only the estate the testator then possessed passes under the terms of the will. Id. When a specific devise of realty is adeemed because the testator sold it before his or her death, absent a contrary intent expressed in the will, the beneficiaries of the realty under the will are not entitled to the sale proceeds; instead, the proceeds pass under the residuary clause. Id. at 150–52. The doctrine of ademption applies only to specific bequests and devises. In re Estate of Brown, 922 S.W.2d 605, 607 (Tex. App.—Texarkana 1996, no writ).

            A bequest or devise can be specific, general, demonstrative, or residuary. Hurt v. Smith, 744 S.W.2d 1, 4 (Tex. 1987). A devise or bequest is specific if it is described in the will with such particularity that the property is distinguished from all of the testator's other property, and the testator intended for the beneficiary to receive that particular item, rather than cash or other property from his or her general estate. Id. "No special words are required to make a bequest specific, though such words as 'my,' 'owned by me,' 'standing in my name,' or 'in my possession' are indicative of the specific character of the legacy." Pinkston v. Pinkston, 81 S.W.2d 196, 198 (Tex. Civ. App.—Eastland 1935, no writ). A legacy is a general bequest if it bequeaths a designated quantity or value of property or money and the testator intended for it to be satisfied out of her or his general assets rather than disposing of, or being charged upon, any specific fund or property. Id.

          Such classification depends on the intent of the testator as shown by the entire will. Hurt, 744 S.W.2d at 4. When classifying bequests in a will, we must consider the testator's intent by looking at the entire dispositive scheme, rather than reaching an arbitrary determination based on ritualistic classification. Id. It is necessary to determine, for each item bequeathed in the will, whether the testator intended the property to be disposed of as a specific asset, or merely as a portion of her or his general estate. Id.

          A review of Beverly's entire will reveals that her clear intent was to devise Shady Glade to her sons as a specific asset. Shady Glade is described with great particularity in the "Stipulation of Ownership" referenced in the will. Beverly also distinguished it from all her other property in the disposition scheme. Considering the entire will, the only item of her property that she specifically provided for was Shady Glade. She disposed of all her other property through the residuary clause. She also devised "all my interest . . . in Shady Glade," reflecting the specific character of the devise. See Pinkston, 81 S.W.2d at 198.

           In addition, the will evidences Beverly's intent for her sons to receive that particular item, rather than cash or other property from her general estate. In her will, Beverly excluded her daughter, Bebe, from Shady Glade "due to the difficulties I have previously experienced with her husband, Richard N. Cole, and because I am satisfied that she has adequate means to ensure her future support and well-being." She specifically provided that her intention was for her two sons to receive Shady Glade. Therefore, her devise of that property was a specific one, subject to ademption.

          Libby contends, and the trial court agreed, Beverly specifically provided for the proceeds from the sale of Shady Glade and, therefore, the devise should not be adeemed. The sale or removal of a specific bequest from the estate adeems the devise or bequest, unless the testator specifically provides otherwise in the will. Stahl, 610 S.W.2d at 150. Libby contends the following italicized language in Beverly's will evidences a contrary intent to ademption:

          I will, devise and bequeath all my interest in all that certain real and personal property located near Caddo Lake in northeastern Harrison County, and commonly known as Shady Glade (being the same property described in that certain Stipulation of Ownership executed by Dallas Harris and myself on October 21st, 1994, and recorded under Clerk's File # 10094-H in the Offices of the County Clerk for Harrison County, Texas) together with all additions thereto and substitutions therefor, . . . .

(Emphasis added.) Libby contends the phrase "together with all additions thereto and substitutions therefor" specifically provides for the proceeds from the sale of Shady Glade. Dallas contends this language is ambiguous and does not specifically provide for the disposition of the proceeds from the sale of Shady Glade, and extrinsic evidence is thus admissible to ascertain Beverly's intent.

          This is not the type of phrase which has a settled legal meaning, akin to "real property" or "community or separate property." See Lang, 35 S.W.3d at 640 ("real property" has settled legal meaning which does not include real estate liens and promissory notes); Stewart v. Selder, 473 S.W.2d 3, 11 (Tex. 1971) (Calvert, C.J., concurring) (terms such as separate and community property are so clear, plain, and unambiguous they do not allow constructions other than those "ascribed to them in law"). It also cannot be said that the term "substitution," as used in this devise, carries a meaning "settled by usage and sanctioned by judicial decisions." See Davis v. Shanks, 898 S.W.2d 285, 286 (Tex. 1995) (finding word "contents" had no settled legal meaning at time of testator's death; therefore, extrinsic evidence was admissible to show testator's intent). We have been unable to find where any court in the United States has addressed the meaning of a testator's reference to the "substitution" of property in this context, and whether such reference includes the proceeds from the sale of that property.

          Courts have analyzed decedents' wills to determine if an intent contrary to ademption was provided. These cases, however, do not provide a clear guide in this case.           In Opperman v. Anderson, 782 S.W.2d 8, 9–10 (Tex. App.—San Antonio 1989, writ denied), the deceased's will bequeathed different stocks to certain beneficiaries, "together with all dividends, rights and benefits declared thereon at the time of my death, and all rights and benefits thereof." The deceased sold some of the stock before death, and the San Antonio court found the bequest was specific and adeemed the stock sold before death. Id. at 11. The appellees interpreted "rights and benefits" to include cash proceeds from the sale of the shares. Id. The court disagreed, finding that "rights and benefits" included only such things as voting rights and dividends, not the proceeds from the sale of the shares. Id.

          In Bates v. Fuller, 663 S.W.2d 512, 514 (Tex. App.—Tyler 1983, no writ), the deceased provided that real estate owned at her death

shall be sold by my Executor to pay all of my legally enforceable debts, funeral expenses, all costs of my last illness, costs and expenses of the administration of my estate, and Federal Estate Taxes, if any. After such debts, expenses and taxes have been paid, the balance of the proceeds remaining from the sale of my real estate, shall be divided equally among my three children . . . .

The court found that the testator's overall purpose and intent was clearly to make a bequest, under the above-quoted provisions, of the proceeds from the sale of "my real estate" to her three daughters, after payment of certain debts and expenses. Id. at 515. The court went on to hold that the devise was not adeemed by such sale since the proceeds were an identifiable part of the estate at the date of death. Id. at 516. Therefore, in Bates, the intent to provide for the proceeds from the sale of the property was specifically provided for in the devise. See also In re Estate of Dublin, 101 A.2d 731 (Pa. 1954) (finding where devise of specific real estate described property as "under agreement of sale" was not adeemed by predeath sale of real estate); In re Estate of Frost, 47 A.2d 219 (Pa. 1946) (finding testamentary gift of "proceeds" of General Motors stock did not adeem specific bequest from predeath sale of stock). This is not the situation in this case.

          Words of common use are given their plain and ordinary meaning unless it appears from the context they were used in a different sense. Stahl, 610 S.W.2d at 152; Vinson v. Brown, 80 S.W.3d 221, 231 (Tex. App.—Austin 2002, no pet.). We must, therefore, determine whether the plain, ordinary meaning of "together with all additions thereto and substitutions therefor" showed an intention by Beverly to provide for the proceeds from the sale of Shady Glade under the specific devise.

          "Substitution" is defined as "the act, process, or result of substituting one thing for another." Merriam-Webster's Collegiate Dictionary 1174 (10th ed. 1993). The word "substitution" has also been defined to mean "to put in place of another thing"; "serves in lieu of another"; "having some of its parts replaced." In re Estate of Cooke, 264 N.Y.S. 336 (N.Y. Sur. Ct. 1933). The word is a synonym for "change of one thing for another." Id. "Substituted," in its ordinary sense and well-known meaning, is something placed in a position previously occupied by another thing. Id. "Therefor" is defined to mean "for or in return for that." Merriam-Webster's Collegiate Dictionary 1223.

          We find that the devise is reasonably susceptible to more than one meaning and that the instrument is, therefore, ambiguous. The phrase "together with all additions thereto and substitutions therefor" does not provide a clear indication of whether Beverly intended to include the proceeds from the possible future sale of Shady Glade in the devise to her two sons. In addition, the stated intent included in the devise does not indicate whether she intended to exclude Richard from only the business operations and management of the business, or whether she intended to also exclude him from all possible future benefits of the business, including proceeds from its sale.  

          On one hand, the provision providing for the "substitution" of Shady Glade could be interpreted to provide for any substitute for Shady Glade, the entity, including the complete substitution of the business for money or a promissory note. The devise for all the real and personal property of Shady Glade, "together with all additions thereto and substitutions therefor" could include anything added to Shady Glade or put in the place of or exchanged for Shady Glade, the business. This language appears broad enough to encompass any substitute for Shady Glade, including proceeds from its sale.  

          This language, however, could also be construed to include only the additions or substitutions to the real or personal property that comprised Shady Glade, but not the proceeds from the sale of that property. The description of Shady Glade in the "Stipulation of Ownership" provides a detailed description of the real property, along with a list of all the personal property, down to the appliances. Dallas contends the devise was of this specifically articulated property, and only additions to and substitutions for that specific property were intended, not the proceeds from its sale. Dallas also points out that, since Beverly meticulously described in the "Stipulation of Ownership" all the property, both real and personal, she was devising to her two sons, she would have also provided for the proceeds from its sale with the same specificity in her will, had it been her intent to include such proceeds in her devise.

          In addition, the paragraph setting out Beverly's intent in devising Shady Glade to her sons does not demonstrate a clear indication of whether Beverly intended to provide for the proceeds from the sale of Shady Glade. The devise includes the following paragraph, evidencing Beverly's intent in making the devise:

          I specifically exclude my daughter, Bebe Ann Hines Cole from this bequest due to the difficulties I have previously experienced with her husband, Richard N. Cole, and because I am satisfied that she has adequate means to ensure her future support and well-being. Under no circumstances do I wish Richard N. Cole to have any interest in or control over Shady Glade at any time, now or in the future.

Beverly's stated intent in devising Shady Glade was to ensure that Richard had no interest in or control over Shady Glade, "now or in the future," under any circumstances. Again, this provision is reasonably susceptible to more than one meaning. This paragraph could be construed to mean Beverly intended to exclude her daughter from the devise to ensure that her husband, Richard, could receive no possible benefits from the business at all, including any proceeds from its sale. It is evident, however, from Beverly's devise of one third of her residuary estate to Bebe, that she did not intend to exclude Richard from any possible participation in the benefits of her estate. On the other hand, the language under consideration could be construed to mean she intended to exclude her daughter and Richard only from the management or operations of Shady Glade as a business.

          In a similar circumstance, the court in Sammons, 940 S.W.2d at 280–81, determined that a term in a will was capable of more than one meaning and extrinsic evidence was admissible to determine the testator's intent. The appellant complained the term "savings account and/or savings certificate" in a devise was not ambiguous. Id. at 280. The court first looked to the dictionary definition of the words used. Id. at 281. The court concluded that, in light of the lack of caselaw and the broad dictionary definition, the term was ambiguous in the context of the will and extrinsic evidence was admissible. Id.

          Likewise, in this case, the dictionary definition of "substitutions" is broad and there is a complete absence of caselaw on whether proceeds is a substitute for a specific devise of real and personal property. The term "substitution" in the context of Beverly's will reasonably conveyed more than one meaning.

          An ambiguity can either be classified as a latent or patent ambiguity. A patent ambiguity is one apparent on the face of the will. Brown, 922 S.W.2d at 608. It arises on the reading of the will from the words themselves. Id. A latent ambiguity exists when the will appears to convey a sensible meaning on its face, but it cannot be carried out without further clarification. Id. at 608–09. In the past, extrinsic evidence was admissible only to explain a latent ambiguity, but not to explain a patent ambiguity. Id. at 609. The modern rule, however, admits extrinsic evidence to show the testator's intent, whether the ambiguity is latent or patent. Id.

          We conclude the ambiguity in this case is patent. The devise of Shady Glade sets up a conflict from the words themselves. It is not clear from the devise whether Beverly intended to provide for the proceeds of Shady Glade. We conclude the will contains a patent ambiguity, and we will look to extrinsic evidence to determine Beverly's intent.

Summary Judgment Evidence

          When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both parties' summary judgment evidence and determine all questions presented. Bright, 89 S.W.3d at 605. The reviewing court should render the judgment the trial court should have rendered. Id.

           The extrinsic evidence in this case conclusively establishes Beverly's intent. The extrinsic evidence consists of two affidavits attached to Dallas' amended motion for summary judgment. The first affidavit is his and states Beverly executed her will and the "Stipulation of Ownership" at the time of the settlement of the lawsuit with Richard. Dallas states that he was present during the discussions regarding the preparation of Beverly's will and that her intention was

to make sure that Richard Cole had no voice in the management of Shady Glade Camp, . . . . Since I was putting my money into the business and becoming a partner with her, my wife and I both wanted to make sure there would be no management problems with Mr. Cole in the event that my wife died before me. . . . I understood that my wife did not intend to make an [sic] permanent unequal division of her entire estate, but she wanted specifically to exclude Richard Cole from any voice in the management of Shady Glade Camp; . . . .

          J. Rodney Gilstrap, Beverly's attorney involved in the litigation with Richard Cole and who drafted the "Stipulation of Ownership" and Beverly's will, also submitted an affidavit. In that affidavit, he also outlines Beverly's intentions in devising Shady Glade.

Because of the business management problems with Mr. Cole, Mrs. Harris was adamant that Mr. Cole never have any involvement with the business.

          There was no discussion ever with Mr. or Mrs. Harris about the possibility of selling Shady Glade Camp. . . .

          In describing the Shady Glade Camp business, I was very specific in including all the real estate owned by the business on or near Caddo Lake, and went on to specifically include all the personal property owned by the business. I incorporated into the will by reference the Stipulation of Ownership executed at the same time by Mr. and Mrs. Harris, which lists all the real and personal property owned by the business. The Stipulation of Ownership lists the canoe, the boats, the equipment, appliances, furnishing, furniture, supplies, linens, and other items owned by the business. In preparing Mrs. Harris' will, I stipulated that the bequest of Shady Glade Camp included not only those items, but "all additions thereto and substitutions therefor." It was my intent and understanding that this phrase would refer to any of the items of personal property which were acquired by the business after the making of the will, whether they were new items or items purchased to replace a lost or worn-out article. It was not my intent to suggest that the entire business might be sold and a note taken for the sale would be considered a "substitute" for the business. Although I never asked that specific question of Mrs. Harris, I am confident from our many, many discussions that she did not intend such a meaning for that phrase. I am sure as one may be, that Mrs. Harris intended and understood that the phrase, "together with additions thereto and substitutions therefor" referred to the acquisition or replacement of personal property then owned by the camp, as itemized on page four of the "Stipulation of Ownership" signed on the same date as the will. We carefully reviewed her will on more than one occasion before she executed it, and I was, and am, confident that we agreed on its meaning.  

          From these affidavits, it is apparent that, at the time of the execution of her will, Beverly did not contemplate the sale of Shady Glade, and the "substitution" for Shady Glade was not intended to encompass proceeds from its possible future sale. It is apparent that Beverly's intent in devising Shady Glade to her two sons was to exclude Richard only from control over the management and operations of Shady Glade, the business. It was not her intent to exclude Richard and her daughter, Bebe, from all possible benefits of the property, including any future proceeds from its sale.

          We reverse the trial court's determinations that the will was not ambiguous and provided an intent contrary to ademption. The devise was ambiguous as to the proceeds from the sale of Shady Glade, and the extrinsic evidence establishes that a sale was not contemplated by Beverly when she executed the will. Because the extrinsic evidence establishes that an intention contrary to ademption was not expressed, we find that the devise of Shady Glade was adeemed at her death and that the proceeds from its sale owing at that time passed pursuant to the residuary clause of the will.

           We, therefore, reverse the trial court's order granting summary judgment for Libby, and for Bebe, as trustee for Cy Rickey, and render summary judgment for Dallas, as independent executor of Beverly's estate.

Date Submitted:      May 12, 2004

Date Decided:         June 8, 2004