Estate of Ella v. Mask

• Court: Court of Appeals of Texas
• Decided: October 15, 2008
• Docket: 04-07-00667-CV
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION ON REHEARING

No. 04-07-00667-CV

IN RE ESTATE OF Ella V. MASK, Deceased

From the County Court, Uvalde County, Texas Trial Court No. 6352-06 Honorable William T. McGee, Judge Presiding1

Opinion by: Alma L. López, Chief Justice

Sitting: Alma L. López, Chief Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice

Delivered and Filed: October 15, 2008

APPELLANT’S MOTION FOR REHEARING GRANTED; AFFIRMED IN PART AND REVERSED AND REMANDED IN PART; AND APPELLEE’S MOTION FOR SANCTIONS DENIED

Appellants, the non-beneficiary grandchildren of the deceased, appeal the summary judgment

granted in favor of appellee, proponent of the deceased’s will, contending the probate court erred by:

(1) granting appellee’s summary judgment; (2) making erroneous evidentiary rulings; (3) denying

appellant’s second motion for continuance; and (4) probating the will and approving the final

accounting. In an opinion and judgment dated July 23, 2008, we affirmed the probate court’s final

judgment and its orders probating the will and approving the final accounting. We denied appellee’s

motion for sanctions. One of the appellants, Ronnie L. Rogers, pro se, filed a motion for rehearing.

1 … Sitting by assignment. T EX . P RO B . C O D E A N N . § 5(b)(1) (Vernon Supp. 2007); T EX . G O V ’T C O D E A N N . § 25.0022 (Vernon Supp. 2007). 04-07-00667-CV

We grant the motion for rehearing, withdraw our opinion and judgment of July 23, 2008, and issue

this opinion and judgment in its place. We affirm the summary judgment and order probating the

will and codicil and issuing letters testamentary, reverse the order approving the final accounting,

and deny appellee’s motion for sanctions. We remand the cause for further proceedings consistent

with this opinion.

BACKGROUND

Ronnie L. and Jimmy W. Rogers (“Ronnie and Jimmy”), appellants, are the grandsons of Ella

V. Mask (“Ella”). During the final year of Ella’s life, Ronnie and Jimmy petitioned for guardianship

of Ella on January 23, February 16, and April 17, 2006. Ronnie and Jimmy were ultimately denied

guardianship. Ella was hospitalized in April and executed a will on April 14, 2006, the day she was

released from the hospital. Much of Ronnie and Jimmy’s concern for Ella centered around contracts

for the sale of Ella’s real property, which they considered to be under-priced. Using a power of

attorney which had been revoked by Ella during the time of the guardianship hearings, Ronnie and

Jimmy deeded Ella’s real property to a trust under which they were trustees of the property. On

November 3, 2006, Ella testified at a hearing to remove the cloud of title on her property and also

executed a codicil to the April 14, 2006 will. Ella was killed in a car accident on December 13, 2006

when she was 90 years of age.

After Ella’s death, T.W. Mask (“Mask”), Ella’s only surviving child and alternate executor

of her estate, filed Ella’s April 14, 2006 will and November 3, 2006 codicil for probate in the county

court. Ronnie and Jimmy filed a will contest on December 27, 20062 and requested that the

2 … Ronnie and Jimmy’s Statement of Facts claims they filed the will contest on December 20, 2006; however, their will contest petition is date-stamped December 27, 2006.

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contested matter be assigned to a statutory probate judge. The contested matter was assigned to a

statutory probate judge, the Honorable William T. McGee, on January 24, 2007.

Mask moved for both a traditional and no-evidence summary judgment on February 9, 2007.

Ronnie and Jimmy’s first motion for a 90-day continuance was granted on February 28, 2007. At

the end of the 90-day continuance, a summary judgment hearing was held on May 31, 2007. During

the hearing, Judge McGee granted the proponent and the contestants seven additional days to submit

summary judgment proof. On July 6, 2007, Judge McGee granted Mask’s summary judgment and

denied Ronnie and Jimmy’s post-hearing motion for continuance. Judge McGee signed a final order

disposing of all claims on August 23, 2007, and he admitted the will to probate and approved a final

accounting on August 28, 2007. A few days later, he signed an order admitting the will and codicil

to probate and an order approving a final accounting. Ronnie and Jimmy appeal.

EVIDENTIARY RULINGS

We first address Ronnie and Jimmy’s second issue. Ronnie and Jimmy contend the probate

court erred, by overruling their objections to Mask’s summary judgment evidence and sustaining

Mask’s objections to their summary judgment evidence. We review a trial court’s evidentiary

rulings for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43

(Tex. 1998). A trial court abuses its discretion when it acts without regard for any guiding rules or

principles. Id. We must uphold a trial court’s evidentiary ruling if there is any legitimate basis for

the ruling. Id.

Because Mask’s motion for summary judgment sought “summary judgment overruling all

grounds of contest of the Will and Codicil” and asserted that “the Will and the Codicil were executed

with the formalities required by law” and with Ella’s full understanding and free will, entitling them

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to admission to probate, Mask pled the proper execution of the codicil as a ground for summary

judgment. The codicil dated November 3, 2006 expressed Ella’s desire to “ratify and confirm” all

of the other provisions of her will dated April 14, 2006. This provision of the codicil “inseparably

connected” the codicil to the will and effectively “republished” Ella’s will. See Aven v. Green, 159

Tex. 361, 320 S.W.2d 660, 662 (1959). Because Jimmy and Ronnie challenged both the will and

the codicil, and in this case the proper execution of the codicil effectively republished the associated

will, we will limit our review to the evidence surrounding the execution of the codicil. See Aven,

320 S.W.2d at 662. If the properly admitted evidence is sufficient to prove the proper execution of

the codicil without raising a fact issue, we need not review the trial court’s rulings regarding

evidence surrounding the execution of the will. See id.; see also Hinson v. Hinson, 154 Tex. 561,

280 S.W.2d 731, 735 (1955).

A. Mask’s Video-Recorded DVD Evidence

Mask presented a DVD containing a video-recorded session during which Ella executed her

November 3, 2006 codicil. According to Ronnie and Jimmy, Mask failed to properly authenticate

the DVD in accordance with the Texas Rules of Evidence. We disagree.

A video recording is considered a photograph under Texas Rule of Evidence 1001. TEX . R.

EVID . 1001(2). Prior to admission into evidence, Texas Rule of Evidence 901 requires the

authentication or identification of a video recording to establish it is what it is claimed to be. TEX .

R. EVID . 901. Proffered evidence may be authenticated by the testimony of a knowledgeable witness

that an item is what it is purported to be. Id. Consequently, a video recording may be authenticated

by testimony that the recording is a fair and accurate representation of the event by a knowledgeable

witness. See Davidson v. Great Nat’l Life Ins. Co., 737 S.W.2d 312, 314-15 (Tex. 1987). Attorney

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William Kessler, who video-taped the session, authenticated the DVD in his affidavit. See id.

Kessler states that it is true and correct and identifies himself as one of the speakers.3 See id. In the

recording, Ella is lucid and articulate; she states she arrived at the ceremony by driving herself; she

identifies the real estate she owns; she verifies her last will and identifies the witnesses to the will;

she states her desire to change the will with a codicil; she acknowledges she has read and

understands the codicil;4 she asks the witnesses (also identified on the DVD) to attest to the codicil;

she states the codicil reflects her desires and no one is pressuring her to sign the codicil; she states

no one pressured her to sign her will; she willingly signs the codicil; and she declares that the signing

of the codicil is her free act and deed, rendering the DVD relevant to the will contest. TEX . R. EVID .

104. Because the DVD was authenticated and is relevant to the will contest, we conclude the probate

judge did not abuse his discretion in overruling Ronnie and Jimmy’s objections to the DVD.

Owens-Corning Fiberglas Corp., 972 S.W.2d at 43.

B. Mask’s Affidavit Evidence

Ronnie and Jimmy raise objections to every affidavit filed in support of Masks’s motion for

summary judgment claiming the affidavits to be unreliable, irrelevant, inaccurate, conclusory, and

contradictory. We will address each argument in turn.

3 … Although the DVD was inadvertently mislabeled, this has no bearing on its proper authentication. 4 … Ronnie and Jimmy claim the video recording of the codicil ceremony is improper evidence because Ella’s statements “about what she was doing are inconsistent with the codicil itself. She does not go over the terms of the codicil, or her will . . . on the video and therefore the probative value is low.” Texas law does not require the will to be read to the testatrix in the presence of the subscribing witnesses. Wilson v. Paulus, 30 S.W .2d 573, 576 (Tex. Civ. App.— Galveston 1930, writ ref’d). Moreover, Ella states on the video that she read the codicil and it reflects her testamentary desires. See id.

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I.

Ronnie and Jimmy contend attorney Kessler’s affidavit “refers to documents not attached,

and violates the rule precluding attorneys from appearing as witnesses in cases in which they are also

counsel.” See TEX . DISCIPLINARY R. PROF’L CONDUCT 3.08, reprinted in TEX . GOV ’T CODE ANN .,

tit. 2, subtit. G app. A (Vernon 2005). Disciplinary rule 3.08 prohibits an attorney from appearing

both as a witness and as counsel unless the attorney is a party to the action and is appearing pro se.

See id. In a will contest, the rule is well established that “an attorney for the proponents . . . is not

rendered incompetent to testify, especially if he drafted the will in question and if he has not been

employed upon a contingent fee.” In re Hardwick’s Estate, 278 S.W.2d 258, 262 (Tex. Civ.

App.—Amarillo 1954, writ ref’d n.r.e.); see, e.g., Wilkinson v. Moore, 623 S.W.2d 662, 664 (Tex.

Civ. App.—Houston [1st Dist.] 1981, no writ) (discussing attorney’s properly admitted testimony

regarding his preparation of decedent’s will and its execution). According to the record, Kessler

offered the will and codicil for probate but did not appear as attorney of record for Mask in the will

contest and was not prohibited from testifying. See Aghili v. Banks, 63 S.W.3d 812, 818 (Tex.

App.—Houston [14th Dist.] 2001, pet. denied). Although Kessler observed both the signing of the

will and the codicil, “each was also witnessed by two other witnesses who . . . testified.” See In re

Hardwick’s Estate, 278 S.W.2d at 262. Consequently, Kessler’s affidavit did not provide “the

controlling testimony for the client’s case [and did not blur] the necessary distinction between

advocate and witness on which our adversary system depends.” Aghili, 63 S.W.3d at 818 (quoting

Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 426 (Tex. 1996) (Phillips, C.J., joined

by Spector, J., dissenting)). Finally, Kessler specifically referenced six documents in his affidavit.

At most, four of the six documents concern the contested matter, and all four were properly served

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with the summary judgment motion. TEX . R. CIV . P. 166a(c), (f); Wilson v. Burford, 904 S.W.2d

628, 629 (Tex. 1995); Gensheimer v. Kneisley, 778 S.W.2d 138, 140 (Tex. App.—Texarkana 1989,

no writ).

II.

Ronnie and Jimmy challenge the affidavits of Dr. Jamil Bitar, Dr. Laura Perches, and Dr.

Lewis Christian as being unreliable, unqualified, inaccurate, contradictory, and conclusory. Ronnie

and Jimmy further contend that the bases of the doctors’ opinions are unreliable because the probate

court did not apply the Robinson factors for scientific evidence in determining the admissibility of

the opinions. See E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 556-57 (Tex.

1995). First, we note that all three doctors testified in large part to Ella’s mental soundness, which

is not a subject that “must be guided solely by the opinion . . . of experts.” See TEX . R. CIV . P.

166a(c); FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 89-90 (Tex. 2004) (“The

determination [of] whether expert testimony is necessary is not an admissibility of evidence question,

which admittedly would be reviewed under an abuse of discretion standard, but a question of what

legal weight should be given to the non-expert evidence in the record. This is a question of law.”).

In will contests, mental soundness is within the common knowledge of lay persons and does not

require proof by expert testimony. Storey v. Hayes, 448 S.W.2d 179, 181-82 (Tex. Civ. App.—San

Antonio 1969, writ dism’d) (citing Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621 (1895)); Payne v.

Chance, 4 S.W.2d 328, 329 (Tex. App.—Amarillo 1928, no writ). The record indicates each

doctor’s affidavit established sufficient personal knowledge of and interaction with Ella upon which

to base their conclusions. See TEX . R. CIV . P. 166a(f). For example, Dr. Bitar was Ella’s physician

and an attesting witness to Ella’s execution of the will. Dr. Bitar’s observations of and conclusion

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regarding Ella’s soundness of mind in January and April of 2006 “is not and does not purport to be

scientific testimony.” See Wal-Mart Stores, Inc. v. Garcia, 974 S.W.2d 83, 86 (Tex. App.—San

Antonio 1998, no pet.). Because each doctor’s testimony regarding Ella’s soundness of mind during

2006 was not scientific testimony, “the factors set forth in Robinson to be considered in the

admissibility of scientific testimony are not relevant to our discussion.” See id. at 87.

Second, although Ronnie and Jimmy attack several aspects of each doctor’s statements as

contradictory to their depositions, the alleged contradictions are either contrived or are not material

to this case. Furthermore, because all three doctor’s opinions were based on their interactions with

and observations of Ella prior to the November 3, 2006 codicil execution date, and there is video,

testimonial, and affidavit evidence of Ella’s mental soundness on November 3, 2006, the doctors’

opinions are not controlling with regards to Ella’s mental soundness on the day she executed the

codicil. See Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968) (stating that in addition to evidence of a

testatrix’s capacity at the time she executed a testament, evidence of a testatrix’s capacity prior or

subsequent to the execution of the testament may be considered only if “that evidence of

incompetency at other times has probative force which demonstrates that that condition persists and

has some probability of being the same condition which obtained at the time of the wills [sic]

making.” See id. (internal quotes omitted). Additionally, immaterial differences between affidavits

and depositions do not warrant the exclusion of the affidavits. Tag Res., Inc. v. Petroleum Well

Servs., Inc., 791 S.W.2d 600, 603-04, Tex. App.—Beaumont 1990, no writ) (holding that “[t]he

conflicting statements made by appellant’s representative were neither relevant nor material to” the

crux of the suit, and none of the “alleged summary judgment evidence of appellant, controverted the

terms or existence of the subsequent agreement,” which was the subject matter of the suit); cf. Saenz

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v. Gonzalez, 94 S.W.3d 659, 663-64 (Tex. App.—San Antonio 2002, pet. denied) (concluding that

even “differences [that] fall into the category of variations on a theme, consistent in the major

allegations but with some variances of detail” must be considered grounds for impeachment).

Ronnie and Jimmy state Dr. Bitar’s testimony, regarding the length of time Ella was deprived of

oxygen on April 7, 2006 and whether she was in pain on April 14, 2006, contradicts the medical

records. Neither issue undermines Dr. Bitar’s opinion of Ella’s mental soundness at the time she

executed her codicil. To impeach Dr. Perches’s credibility, Ronnie and Jimmy emphasize that Dr.

Perches’s affidavit listed her employment as being in private practice even though she stated during

her deposition that she was the director of a drug treatment center. They also point out that she failed

to specifically list performing hair transplants while completing her psychiatric residency. We fail

to find these “differences” are contradictory or that they undermine the doctors’ testimony regarding

Ella’s mental soundness. See Tag Res., Inc., 791 S.W.2d at 603-04.

III.

Ronnie and Jimmy challenge the affidavits of the lay witnesses to the codicil as factually

unsupported and conclusory. Ronnie and Jimmy contend that the witnesses to the codicil were “no

more than . . . mere acquaintance[s].” Although sworn affidavits based solely upon “best knowledge

and belief are insufficient” summary judgment evidence, Lightfoot v. Weissgarber, 763 S.W.2d 624,

628 (Tex. App.—San Antonio 1989, writ denied), affidavits based on personal knowledge through

the observation of and involvement with a testatrix may be sufficient to support mental capacity.

TEX . R. CIV . P. 166a(f); see also Jackson T. Fulgham Co., Inc. v. Stewart Title Guar. Co., 649

S.W.2d 128, 129 (Tex. App.—Dallas 1983, writ ref’d n.r.e.). Furthermore, a lay witness need not

detail the facts upon which she bases her opinion of sound mind. Singleton v. Carmichael, 305

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S.W.2d 379, 383 (Tex. Civ. App.—Houston 1957, writ ref’d n.r.e.). The witnesses to the codicil

stated that they were in the room with Ella when she signed the codicil. This unchallenged statement

is sufficient to show how each person knew of the facts they attested to. See Jackson T. Fulgham

Co., Inc., 649 S.W.2d at 129. The witnesses also attested to the solemnities of the codicil ceremony.

They each heard Ella declare that the instrument was the codicil to her last will and testament, and

that she willingly made and executed it as her free act and deed. They each accepted Ella’s request

to sign the codicil in attestation, and their affidavits were not contradictory to the other evidence

presented regarding the November 3, 2006 codicil. See id. Even if the attesting witnesses did not

frequently visit with Ella, their presence at the signing ceremony and brief conversations with Ella

before or after witnessing the codicil are “sufficient to qualify the attesting witness[es] to give [their]

opinion as to the sanity of the testator.” See Reynolds v. Park, 485 S.W.2d 807, 811 (Tex. Civ.

App.—Amarillo 1972, writ ref’d n.r.e.) (citing Mueller v. Banks, 273 S.W.2d 88, 89 & n.1 (Tex. Civ.

App.—San Antonio 1954, writ ref’d n.r.e.)).

IV.

Ronnie and Jimmy further object to the affidavit of Ed Alexander, Ella’s former minister and

realtor associated with Ella’s pending real estate transaction. Ronnie and Jimmy claim Alexander

is an interested witness because he was the listing broker for the sale of Ella’s real property. Because

this is a will contest, the pertinent question is whether Alexander is an interested witness as defined

in that context. Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212, 215-17 (1947). An interested

party to a will is one who “has some legally ascertained pecuniary interest, real or prospective,

absolute or contingent, which will be impaired or benefited, or in some manner materially affected,

by the probate of the will.” Id. at 215-16. Assuming, without deciding, that Alexander is an

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interested witness as described in Rule of Procedure 166a(c) in the context of this will contest, his

affidavit was admissible if the evidence was “clear, positive and direct, otherwise credible and free

from contradictions and inconsistencies, and could have been readily controverted.” TEX . R. CIV .

P. 166a(c). Alexander provided a detailed basis for his relationship with Ella and his evaluation of

her mental soundness. Ronnie and Jimmy offer no contradicting evidence of Alexander’s

relationship with Ella, but rather support Alexander’s evidence by claiming that Alexander had

frequent meetings with Ella—albeit to exert alleged “undue influence on Ella . . . as they were

attempting to insure [sic] the sale of her real property.” We conclude the probate court properly

considered Alexander’s affidavit.

V.

Ronnie and Jimmy challenge the affidavit of Mask due to Mask’s lack of personal knowledge

and contradictions between his affidavit and deposition. Ronnie and Jimmy contend:

The affidavit of T.W. Mask is directly contradicted by his deposition testimony. He admits he has no personal knowledge of the will execution and that he only saw Ella . . . three times in three or five years. He admits she did not discuss his [sic] personal affairs with him. His affidavit is full of contradicted statements made without personal knowledge.

It appears from the record that Mask’s personal knowledge of Ella’s final year is based upon

telephone conversations and two personal visits with Ella. Mask testified during his deposition that

Ella was not “forthcoming . . . with regard to her business affairs” and “never said much about

business” but further stated that Ella would make “comments about it was a slow weekend or a busy

weekend” at her camp facility. When asked whether Mask thought Ella “was in some sort of

danger” at the hands of her granddaughter, Mask testified that Ella “said she was not” and “told me

that, that was not what happened, and I believe my mother.” Mask’s testimony does not contradict

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his affidavit. Additionally, Mask’s affidavit correctly states that Ella appointed him attorney-in-fact,

guardian in the event of later need, medical power of attorney, and alternate executor of Ella’s will.

These facts are based on his personal review of the documents and were not based on Mask’s

observation of the execution of the documents.

VI.

Ronnie and Jimmy also oppose the affidavits of Ella’s friends: Norma Gayle, Thomas

Rochhio, and Richard Hernandez as irrelevant, unreliable, contradicted, and controverted. Our

review of the record indicates each affiant established a proper basis for his or her observations and

their associated conclusions regarding Ella’s testamentary capacity and susceptibility to undue

influence. Each of these friends had numerous and recent opportunities to observe Ella and had

extended conversations with her. During their visits, they observed Ella’s memory recall and her

ability to communicate lucidly and knowlegdably on a host of subjects. See Singleton, 305 S.W.2d

at 383.

C. Ronnie and Jimmy’s Excluded Evidence

Ronnie and Jimmy claim the probate court erroneously sustained Mask’s objections to their

summary judgment evidence. In particular, the affidavits of Ella’s cousin and her husband, the Kites,

were excluded as conclusory. After describing a building loan that the Kites provided to Ella so that

Ella’s granddaughter, Robby Rogers, could build cabins which were never built, the Kites each

concluded that “[i]t became apparent that Robby Rogers was controlling Ella.” Neither provided a

factual basis for their conclusions and both summarized “it is my opinion that Ella . . . was unable

to understand what was going on. Robby Rogers was controlling Ella [and she] was vulnerable and

able to be controlled.” Moreover, there was no evidence presented that Robby Rogers, who is not

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a beneficiary under Ella’s will and codicil, had anything to do with the execution of Ella’s will or

codicil.

Next, the probate court excluded the affidavits of Ronnie and Jimmy as self-serving and

conclusory. Because Ronnie and Jimmy submitted two sets of affidavits, we will address the May

24, 2007 affidavits first. Ronnie and Jimmy stated that Ella and Mask were not close and because

of that “[t]here is no way Ella . . . would have made [Mask] her substitute executor.” Although self-

serving affidavits are not necessarily improper summary judgment evidence, Trico Techs. Corp. v.

Montiel, 949 S.W.2d 308, 310 (Tex. 1997), they must contain statements that may be confirmed or

denied by independent evidence. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). Ronnie and

Jimmy’s statements are based on their perceptions and could not be easily controverted.

Furthermore, Ronnie and Jimmy offer no statements by Ella to support their conclusions. Ronnie

and Jimmy also stated that Ella’s will power was being overpowered “first by Robby Rogers and

then by [Kessler, James Drought, Alexander, and Joe Meyer].” Again, there was no evidence

presented that Robby Rogers had anything to do with the execution of Ella’s will or codicil. Kessler

and James Drought were Ella’s attorneys, Alexander was Ella’s minister and real estate broker, and

Joe Meyer was the prospective buyer of Ella’s real property. Ronnie and Jimmy presented no

evidence that either Alexander or Meyer had anything to do with Ella’s will or codicil. Although

Kessler drafted Ella’s will and Drought handled a pending real estate agreement, neither are

beneficiaries under the will or codicil, and Ronnie and Jimmy provided no factual evidence that

Ella’s will or codicil was a result of improper influence by Kessler or Drought.

The probate court also excluded the June 7, 2007 affidavits of Ronnie and Jimmy. In these

affidavits, Ronnie and Jimmy stated facts suggesting their sister, Robby Rogers, was abusive but they

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failed to connect her abusiveness to the will or codicil. They concluded that, because Ella did not

want Mask to be involved in her daily affairs, “[n]aming T.W. Mask her executor is not something

she would naturally have done.” Ronnie and Jimmy failed to explain why Mask was named

substitute executor in Ella’s will. They further accused Drought and Kessler of telling Ella that

Ronnie and Jimmy had stolen Ella’s land and were trying to control Ella. Ronnie and Jimmy stated

that, at the November 3, 2006 hearing, Ella “did not remember many things that happened recently

. . . [and] was confused and sometimes answered questions with answers that made no sense;”

however, they failed to provide the details supporting their conclusions by specifying what Ella

failed to remember and what she was confused about. Finally, Ronnie and Jimmy each concluded

“[f]rom my recent personal contacts with her and my knowledge of her for many years, my

grandmother, Ella . . . was too frail and weak both physically and mentally to be able to resist

influences on her during the last year of her life.” Because Ronnie and Jimmy failed to connect their

allegations to their conclusions, and their conclusions were based on incontrovertible perceptions,

the probate court did not abuse its discretion by excluding Ronnie and Jimmy’s affidavits as self-

serving and conclusory.

The probate court also excluded several exhibits presented by Ronnie and Jimmy on the basis

of irrelevancy, immateriality, lack of certification, and/or hearsay. It is within the trial judge’s

discretion to determine whether a piece of evidence is relevant, based on hearsay, or whether it is

properly certified. TEX . R. EVID . 104(a); State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex.

2001). The excluded evidence includes: the petition from an unrelated suit against Dr. Perches; an

advertisement for Dr. Perches’s services; Robby Rogers’s indictment for misappropriation and elder

abuse; a notary receipt from a boundary line agreement; Ella’s medical records from September

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2005; a December 2005 letter regarding the limits of Robby Rogers’s power of attorney; sheriff’s

department witness statements from January 2006 regarding Robby Rogers’s abuse of Ella; a court

order granting Ella’s guardian ad litem’s motion for an independent mental examination; a title

company letter regarding payments due to a land surveyor; a November 2005 police report regarding

Ella becoming confused; and an April 2006 appraisal letter for Ella’s property. Our review of the

record indicates the probate court applied appropriate evidentiary rules and did not err in excluding

the affidavits or exhibits from summary judgment evidence. State, 65 S.W.3d at 647.

In summary, we will not consider Ronnie and Jimmy’s properly excluded evidence in our

review of the probate court’s grant of Mask’s motion for summary judgment.

SUMMARY JUDGMENT

We review a trial court’s decision to grant summary judgment de novo. Valores

Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex. App.—San Antonio 1997,

writ denied). “The trial court’s duty is to determine if any genuine issues of material fact remain,

not to weigh the evidence or determine its credibility.” In re Estate of Garcia, No. 04-06-00121-CV,

2007 WL 1423873, at *1 (Tex. App.—San Antonio May 16, 2007, no pet.) (mem. op.) (citing

Cummins v. Travis County Water Control & Improvement Dist. No. 17, 175 S.W.3d 34, 53 (Tex.

App.—Austin 2005, pet. denied)). When the trial court does not state the grounds upon which it

granted summary judgment and, as here, several grounds are provided, the reviewing court must

affirm the summary judgment if any ground would support the judgment. Moritz v. Bueche, 980

S.W.2d 849, 852-53 (Tex. App.—San Antonio 1998, no pet.); see also Proctor v. White, 155 S.W.3d

438, 441 (Tex. App.—El Paso 2004, pet. denied).

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A traditional summary judgment requires the movant to establish that there is no genuine

issue of material fact and that he is entitled to judgment as a matter of law. TEX . R. CIV . P. 166a(c);

KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The

movant has the burden to conclusively disprove one element of the challenged cause of action or to

conclusively prove all of the elements of an affirmative defense. Wornick Co. v. Casas, 856 S.W.2d

732, 733 (Tex. 1993). Evidence favorable to the non-movant will be taken as true, and every

reasonable inference and any doubts will be resolved in the non-movant’s favor. Nixon v. Mr. Prop.

Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). This means a matter is conclusively established

if reasonable people could not differ as to the conclusion to be drawn from the evidence. City of

Keller v. Wilson, 168 S.W.3d 802, 814 (Tex. 2005).

A. Insufficient Motion for Summary Judgment

Ronnie and Jimmy claim that Mask’s motion for traditional summary judgment failed to meet

the pleading requirements of the Texas Rules of Civil Procedure. See TEX . R. CIV . P. 166a(c),

166a(i). Ronnie and Jimmy argue “Appellee failed to state with specificity the elements conclusively

negated” under traditional summary judgment. “The mere conclusory statements of the witnesses

and notary to the will, whose statements were not otherwise free from contradiction, do not meet the

burden.” Mask’s traditional motion for summary judgment stated, in general, that “each and every

ground of contest of the Will by contestants is conclusively negated by [attached] summary judgment

evidence.” Mask then individually addressed: (1) formalities required by law; (2) mental capacity;

(3) undue influence; (4) fraud; and (5) mistake. We conclude Mask’s traditional summary judgment

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pleadings are sufficient to meet Ronnie and Jimmy’s causes of action as pled. See SmithKline

Beecham Corp. v. Doe, 903 S.W.2d 347, 354-55 (Tex. 1995).5

B. Lack of Formalities

Ronnie and Jimmy make a vague argument that the will execution ceremony lacked the

requisite formalities. Nevertheless, the codicil dated November 3, 2006 expressed Ella’s desire to

“ratify and confirm” all of the other provisions of her will dated April 14, 2006. This provision of

the codicil effectively “republished” Ella’s will. See Aven, 320 S.W.2d at 662. Because a properly

executed codicil republishes the prior “connected” but improperly executed will, we will briefly

address the solemnities of the codicil ceremony. See Hinson, 280 S.W.2d at 735. A testament with

a self-proving affidavit is prima facie evidence that the proper formalities were followed. Bracewell

v. Bracewell, 20 S.W.3d 14, 26 (Tex. App.—Houston [14th Dist.] 2000, no pet.). The codicil to

Ella’s will contained a self-proving affidavit. Because the codicil was not yet admitted to probate,

however, Mask retained the burden of proving compliance with the requisite formalities. See id. at

25-26. The codicil execution ceremony was video-recorded, and Mask’s evidence clearly

demonstrated the ceremony contained all of the necessary elements of a formal execution ceremony.

See TEX . PROB. CODE ANN . § 59 (Vernon 2003). The non-beneficiary witnesses, both of whom were

over fourteen years of age: (1) observed Kessler discuss the contents of the codicil with Ella; (2)

observed Ella was over eighteen years of age and of sound mind; (3) heard Ella ask both witnesses

to attest to her execution of her codicil; (4) observed Ella sign the codicil which Ella declared was

executed as her free act and deed; and (5) signed the codicil in the presence of Ella and of each other.

… Ronnie and Jimmy also challenge Mask’s no-evidence motion for summary judgment as insufficient. 5

Because we dispose of the issues based on Mask’s traditional motion for summary judgment, we do not reach this issue.

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See id. Moreover, Ronnie and Jimmy presented no evidence that the codicil ceremony did not

comply with formalities. See Bracewell, 20 S.W.3d at 26.

C. Lack of Testamentary Capacity

A testatrix must be of “sound mind,” which means having testamentary capacity, at the time

the testatrix executes a will. TEX . PROB. CODE ANN . § 57 (Vernon 2003); Chambers v. Chambers,

542 S.W.2d 901, 906 (Tex. Civ. App.—Dallas 1976, no writ). The testatrix must possess sufficient

mental soundness to: (1) understand the business in which the testatrix is engaged, the effect of

making the will, and the general nature and extent of her property; (2) know the testatrix’s next of

kin and the natural objects of her bounty; and (3) have sufficient memory to assimilate the elements

of the business to be transacted, to hold these elements long enough to perceive their obvious relation

to each other, and to form a reasonable judgment as to them. Jones v. LaFargue, 758 S.W.2d 320,

325 (Tex. App.—Houston [14th Dist.] 1988, writ denied). The burden of proving the testatrix’s

testamentary capacity is on the proponent of the will. Croucher v. Croucher, 660 S.W.2d 55, 57

(Tex. 1983). Although a self-proving will may be admitted to probate by affidavit, without the

testimony of subscribing witnesses, the burden of proof regarding the testatrix’s testamentary

capacity remains on the proponent when a contest is filed before the will is admitted to probate. Id.

In a will contest, proof of mental soundness may be established either by lay or expert

witnesses. Storey, 448 S.W.2d at 181-82. Either type of witness may answer “whether the testator

knew or had the capacity to know the objects of his bounty, the nature of the transaction in which

he was engaged, the nature and extent of his estate, and similar questions,” provided the witness has

personal knowledge or is a proper expert. Id. Personal knowledge is based on observing the testator

near the time of the execution of the will under such circumstances that a conclusion could be drawn.

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Reynolds, 485 S.W.2d at 811. “[E]ven a conversation with the testator ten minutes prior to the

execution of the will has been held sufficient to qualify the attesting witness to give his opinion as

to the sanity of the testator.” Id. (citing Mueller, 273 S.W.2d at 89 & n.1). A lay witness need not

detail the facts upon which she bases her opinion, unless she expresses the opinion that the testator

was of unsound mind. Singleton, 305 S.W.2d at 383.

Here, Mask was required to prove Ella had testamentary capacity when she executed the

November 2006 codicil. Due to recent guardianship proceedings, Ella’s soundness of mind and

ability to manage her own affairs had been recently and vigorously challenged. Consequently,

Mask’s summary judgment evidence consisted of over forty exhibits consisting of affidavits, video

recordings of Ella reaffirming her will and executing her codicil, Ella’s own court testimony, and

her medical records. The probate judge ruled that the evidence proved Ella’s competency and

overruled Ronnie and Jimmy’s evidentiary challenges.

First, Mask presented a video recording of Ella executing her codicil. Ella appeared healthy,

lucid, and articulate. In the video, Ella stated that she had driven herself to attorney Kessler’s office

in Uvalde from her residence in Concan. She accurately answered questions regarding the

circumstances of the meeting and her testamentary desires.

Next, Mask produced thirteen different affidavits attesting to Ella’s sound mind. Besides the

affidavits provided by the witnesses of her codicil, there were five affidavits provided by Ella’s

doctors, friends, and minister who visited with Ella many times before and after the signing of her

will and codicil. Ella’s attorney and those who witnessed Ella’s execution of the codicil, each swore

that Ella declared she was signing the codicil to her last will and testament, and that she willingly

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made and executed the instrument of her own free will. The attesting witnesses further avowed that,

based on their personal observations, Ella was of sound mind and had sufficient mind and memory

to understand the nature and consequences of making her codicil at the time of execution. The other

five affiants swore that, based on their personal observations of and discussions with Ella, she was

independent; demonstrated good memory; was knowledgeable of her medical condition; was aware

of local, state, and national news; knew her son, grandchildren, and great grandchildren; and

understood the nature and consequences of her acts and the business she was transacting with Meyer,

who was purchasing her property. Mask also presented Ella’s own testimony from the guardianship

proceedings, as well as the cloud of title proceeding on November 3, 2006. Mask’s comprehensive

summary judgment evidence proved the elements of testamentary capacity.

Once Mask established his right to summary judgment, the burden shifted to Ronnie and

Jimmy to present evidence raising a fact issue. United Bus. Machs. v. Entm’t Mktg., Inc., 792

S.W.2d 262, 264 (Tex. App.—Houston [1st Dist.] 1990, no pet.). Ronnie and Jimmy presented

summary judgment evidence consisting of ten affidavits, nine depositions, and numerous documents.

After the hearing on the motion for summary judgment, the probate judge sustained Mask’s

objections to the affidavits of the Kites and Ronnie and Jimmy; evidence against Dr. Perches;

medical records from 2005; and other miscellaneous evidence. Ronnie and Jimmy claim their

summary judgment evidence contradicted the evidence presented by Mask and raised fact issues.

Because we previously concluded that the probate judge correctly sustained Mask’s objections to

Ronnie and Jimmy’s summary judgment evidence, we will not consider the excluded evidence in

our analysis.

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To rebut Mask’s evidence, Ronnie and Jimmy submitted the affidavit of Dr. Michael

Arambula to provide medical evidence that Ella lacked testamentary capacity on April 14, 2006. Dr.

Arambula’s affidavit presents no evidence, however, that Ella lacked testamentary capacity on

November 3, 2006, the date the codicil was executed. Because a properly executed codicil

republishes the prior “connected” will, see Hinson, 280 S.W.2d at 735, we need only consider Dr.

Arambula’s affidavit if Ella’s condition persisted six months later when Ella executed her codicil.

Lee, 424 S.W.2d at 611. Dr. Arambula based his medical opinion on a review of Ella’s hospital and

pharmacy records “during the relevant time period.” Without personal observation or examination,

Dr. Arambula concluded Ella was “suffering from symptoms of withdrawal from alprazolam on

April 14, 2006 ” as evidenced by her “delirium” on April 12, 2006 when she thought she was in a

church. Even though Ella was given a dose of alprazolam on April 13, 2006, Dr. Arambula opined

that the medical records indicated she continued to suffer from withdrawal through the night of April

13, 2006. Evidence of drug use is insufficient to establish a lack of testamentary capacity without

evidence illustrating that it affected Ella’s testamentary capacity. See Horton v. Horton, 965 S.W.2d

78, 86 (Tex. App.—Fort Worth 1998, no pet.). Although the medical records indicated Ella was in

pain caused by the bruising to her torso a few days earlier, there is no indication that Ella was

delirious, confused, or unable to make her own medical decisions on April 13 or April 14, 2006. The

medical records, recorded by Ella’s attending nurses, indicated that Ella’s health began to improve

on the afternoon of April 13 and progressed through the evening with Ella stating she had no pain

and wanted to go home. The medical records establish no evidence of Ella exhibiting confusion or

anxiety on April 13 or 14. Furthermore, eye witnesses stated that Ella was lucid, alert, and

communicative on April 14, 2006 when she executed her will. Dr. Arambula’s affidavit creates no

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more than a mere surmise or suspicion that Ella lacked testamentary capacity on the afternoon of

April 14, 2006 and does not report a condition which probably persisted on November 3, 2006. Dr.

Arambula also disagreed with Dr. Perches’s characterization of the Folstein Mini Mental Status

Exam as a diagnostic test and rather characterized the exam as a screening test. Dr. Arambula

provided no basis for this opinion. Given Mask’s summary judgment evidence for November 3,

2006 from witnesses who observed Ella at the time she executed her codicil, the difference between

Dr. Perches’s and Dr. Arambula’s characterization of the Folstein Mini Mental Status Exam

administered on April 25, 2006 does not create a fact issue regarding Ella’s mental capacity on

November 3, 2006.

Ronnie and Jimmy claim that the affidavit of Ella’s friend, Ann Watkins, based on her visit

to Ella on April 12, 2006, raises a fact question regarding Ella’s testamentary capacity on April 14,

2006. Even if Ella was “confused and dazed to the extent that she could not have transacted any

business or made any decisions with reason” on April 12, 2006 after suffering heart failure, this

condition did not probably persist on November 3, 2006. Lee, 424 S.W.2d at 611. Moreover,

evidence that Ella was old, sick, and weak does not infer a lack of testamentary capacity. See Price

v. Johnston, 352 S.W.2d 864, 865 (Tex. Civ. App.—San Antonio 1961, writ dism’d).

Ronnie and Jimmy attempt to discredit the affidavits of Linda Weaver, witness to the will,

and Barbara Dillahunty, notary to the will. Because the proper execution of the codicil is controlling,

we need not address this point regarding the execution of the will. See Hinson, 280 S.W.2d at 735.

Ronnie and Jimmy also presented the affidavit of Ella’s daughter-in-law, Patricia Mask.

Patricia lived with Ella from January 26, 2006 through June 11, 2006. We need only consider

Patricia’s affidavit if Ella’s mental condition probably persisted six months later when Ella executed

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her codicil. Lee, 424 S.W.2d at 611. Although Patricia was not present when Ella executed her will

or codicil, most of Patricia’s opinions are based on the time frame around the execution of Ella’s will

on April 14, 2006. During this period, Patricia stated that she noticed Ella “seemed to become

confused easily,” and “[s]he did not seem to remember anything. She did not seem to understand

things she was told.” Even though Patricia does not provide sufficient details to support her

conclusions regarding Ella’s confusion, and she fails to state what Ella could not remember and what

Ella could not comprehend, see Singleton, 305 S.W.2d at 383, it does not effect our analysis because

there is no indication by Patricia that Ella was suffering from confusion or a lack of comprehension

on November 3, 2006. Ronnie and Jimmy’s summary judgment evidence thus creates no more than

a mere suspicion or surmise that Ella lacked testamentary capacity at the time of the codicil

execution ceremony.

Finally, Ronnie and Jimmy make a brief argument that Ella lacked testamentary capacity on

November 3, 2006, the day she executed the codicil. Ronnie and Jimmy submit Ella’s testimony at

the cloud of title hearing which was also held on November 3, 2006. They argue that Ella did “not

remember vital facts and [was] confused.” The record shows Ella felt threatened by Ronnie and

Jimmy, and she testified she had excluded Ronnie and Jimmy from eligibility to be her guardian and

had asked Jimmy not to call anymore. Although Ella was defensive during cross-examination at the

hearing, she was nonetheless articulate and lucid. Accordingly, Ronnie and Jimmy’s summary

judgment evidence fails to raise a fact issue regarding Ella’s testamentary capacity on November 3,

2006 when she signed her codicil.

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D. Undue Influence

Mask bore the burden of establishing there was insufficient evidentiary support to raise a fact

issue regarding an element of undue influence. Undue influence requires the existence of

testamentary capacity which has been “subjected to and controlled by a [dominant] influence or

power.” Rothermel v. Duncan, 369 S.W.2d 917, 921 (Tex. 1963). The elements of undue influence

in a will contest are:

(1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence.

Id. Although undue influence may be established by direct or circumstantial evidence, circumstantial

evidence must be probative of the issue and must not be equally consistent with the absence of an

influence. Estate of Davis v. Cook, 9 S.W.3d 288, 292-93 (Tex. App.—San Antonio 1999, no pet.).

Mere opportunity to unduly influence a testatrix is not sufficient to show actual influence. Id. at 293.

[I]nfluence is not undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence. . . . [O]ne may request or even importune and entreat another to execute a favorable dispositive instrument; but unless the importunities and entreaties are shown to be so excessive as to subvert the will of the maker, they will not taint the validity of the instrument with undue influence.

Rothermel, 369 S.W.2d at 922.

Having determined that Ronnie and Jimmy failed to raise a fact issue regarding Ella’s

testamentary capacity, we must determine whether there is sufficient evidence to raise a fact issue

regarding whether her capacity was overcome by a dominant influence. Id. at 921. Ronnie and

Jimmy presented the affidavit of Patricia to show the undue influence of Kessler, Drought,

Alexander, and Meyer over Ella to sell her property and exclude Ronnie and Jimmy from her estate

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affairs. Patricia stated that on more than one occasion Ella refused to meet with Drought and Kessler

but after talking to Alexander, Ella asked Patricia to take her to meet with them. Patricia took Ella

and was present at the meeting where Drought and Kessler asked Ella “questions . . . about her real

property.” Patricia recounted other events where Ella “expressed dismay . . . because she did not

want to sell her property to Joe Meyer. I even witnessed Ella . . . making her concerns known to

William Kessler.” Patricia’s affidavit evidence pertains to the sale of Ella’s real property and not

the creation of Ella’s will or codicil; hence, there is no evidence Drought and Kessler exerted undue

influence over Ella regarding her will or codicil. Moreover, Patricia’s statements indicate Ella

decided who she wanted to discuss her business with, and Ella was strong enough to “make her

concerns known” to her attorneys. We conclude there is no evidence that Kessler, Drought,

Alexander, and Meyer’s influence existed as a power over Ella to make a particular will or codicil.

Ronnie and Jimmy claim Ella was unduly influenced by their sister, Robby Rogers, to sell

Ella’s property and exclude Ronnie and Jimmy from Ella’s will and codicil. Examining the first

element of undue influence, Ronnie and Jimmy presented the affidavits of Patricia and Watkins to

circumstantially establish that Ella was unduly influenced by Robby Rogers. Robby Rogers lived

with Ella until January 2006 and was her attorney-in-fact at various times. Patricia described

evidence of Robby Rogers’s abuse of Ella’s daughter, Bobbie Lou Rogers, who also lived with Ella.

Patricia stated that Ella attempted to make Robby Rogers move from Ella’s home on more than one

occasion. Watkins stated that Ella “came to [her] home on occasions fearful of Robby Rogers for

herself, [Robby’s] mother, and Robby’s children.” Watkins “witnessed Bobbie Lou call the police

to report Robby Rogers for abuse.” We conclude Ronnie and Jimmy presented some evidence

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raising a fact issue as to whether Robby Rogers’s influence existed over Ella as to Ella’s

testamentary desires.

Having determined that there is some evidence that Robby Rogers’s influence existed

regarding Ella, we examine the second element of undue influence and conclude there is no evidence

that Robby Rogers’s influence overpowered Ella’s mind during the drafting or execution of Ella’s

will or codicil. In fact, there is evidence to the contrary: (1) Robby Rogers had not been living with

Ella for approximately three months prior to the time Ella executed her will and for approximately

nine months prior to the time Ella executed the codicil to her will; (2) Robby Rogers was not present

when Ella executed her will or codicil; and (3) although Robby Rogers was one of several

beneficiaries under the will, she was not a beneficiary under the codicil. Furthermore, Mask

presented video and affidavit evidence that Ella read, understood, and desired to execute the codicil

in question. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138, 1142 (1914) (holding that where

undue influence is at issue, “declarations of the testator expressive of a mental state produced by

such influence, whether made contemporaneously with the execution of the will or within a

reasonable time before or after its execution, are admissible as an aid in the determination of the

question of his free agency in making the will”). Ronnie and Jimmy contend that because they were

beneficiaries under previous wills, this is some indication that Robby Rogers unduly influenced Ella.

Ella’s change of heart regarding the disposition of her estate is not proof of undue influence. See id.

at 923-24. Because Mask successfully negated the second element of undue influence, we conclude

the probate court properly granted his summary judgment on the issue of undue influence. See id.

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E. Fraud

Ronnie and Jimmy contend the probate court erred by granting summary judgment as to their

fraud claims. According to Ronnie and Jimmy, “there was fraud perpetrated on the testator.”

“Fraud in the factum is present when the testator is misled as to the nature or content of the

instrument executed.” Guthrie v. Suiter, 934 S.W.2d 820, 832-33 (Tex. App.—Houston [1st Dist.]

1996, no writ) (citing Sockwell v. Sockwell, 166 S.W. 1188, 1188 (Tex. Civ. App.—Texarkana 1914,

writ ref’d). Ronnie and Jimmy presented no evidence that anyone misled Ella about the nature and

content of her will or codicil, and Mask presented video and affidavit evidence that Ella read and

understood the contents of the will and codicil that she executed. Ronnie and Jimmy have, therefore,

failed to raise a fact issue on the claim of fraud in the factum.

Fraud in the inducement exists when the testatrix is induced to sign a will based on an

erroneous belief about some extrinsic fact. Holcomb v. Holcomb, 803 S.W.2d 411, 415 (Tex.

App.—Dallas 1991, writ denied). “[U]ndue influence and fraud in the inducement . . . are

sometimes viewed as separate and distinct grounds for invalidating a will. [Our] courts . . . ,

however, treat the two as one, viewing undue influence as a species of fraud.” Id. (citing Curry v.

Curry, 153 Tex. 421, 270 S.W.2d 208, 214 (1954)). For the same reasons that we found no fact

issue regarding undue influence, we find no fact issue regarding fraud in the inducement. See

Guthrie, 934 S.W.2d at 833.

F. Mistake

Ronnie and Jimmy contend Ella was mistaken “about material issues that led her to execute

the will that she executed.” Although Ronnie and Jimmy provide no case law supporting their point,

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[A] mistake of fact or law alone will not defeat the probate of a will even though the testator would have made a different will but for the mistake inducing the making of the will. Coupled with undue influence or fraud perpetrated upon the testator, such a mistake is sufficient to deny probate of such an instrument.

Holcomb, 803 S.W.2d at 415. Having found no evidence of undue influence or fraud to support a

claim of mistake, we conclude the probate court did not abuse its discretion in granting Mask’s

motion for summary judgment on this point.

G. Summary

Because Ronnie and Jimmy did not raise an issue of material fact, we conclude the probate

court did not abuse its discretion in granting summary judgment in favor of Mask. Ronnie and

Jimmy’s first issue is overruled.

MOTION FOR CONTINUANCE

In their third issue, Ronnie and Jimmy contend the probate court erred by denying their

motion for continuance. A trial court may order the continuance of a summary judgment hearing if

it appears “from the affidavits of a party opposing the motion that he cannot for reasons stated

present by affidavit facts essential to justify his opposition.” TEX . R. CIV . P. 166a(g); Joe v. Two

Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). In addition to proving additional time

is needed, the party requesting continuance must identify the specific evidence needed, demonstrate

why such evidence is material, and establish that the party has used due diligence to obtain the

evidence. Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.—Austin 2002, no pet.). We review a

trial court’s order denying a motion for continuance for a clear abuse of discretion based on the

unique facts of each case. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.

2002). “A trial court ‘abuses its discretion when it reaches a decision so arbitrary and unreasonable

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as to amount to a clear and prejudicial error of law.’” Id. (quoting Johnson v. Fourth Court of

Appeals, 700 S.W.2d 916, 917 (Tex. 1985)).

Ronnie and Jimmy’s motion for continuance presented multiple grounds for postponing the

deadline to submit final summary judgment evidence. Ronnie and Jimmy’s grounds can be

summarized as: (1) Mask’s motion for summary judgment was filed shortly after Mask’s answer;

(2) Ronnie and Jimmy were preparing for the summary judgment hearing and the jury trial at the

same time; (3) Mask delayed discovery by using frivolous motions and forcing Ronnie and Jimmy

to file a motion to compel; (4) Mask filed additional summary judgment evidence and objections

after the hearing with the court’s permission; and (5) the unobtained evidence would support Ronnie

and Jimmy’s allegations.

Analyzing the record before us, the will contest was filed December 27, 2006. Mask’s

motion for traditional and no-evidence summary judgment was filed on February 9, 2007.

Subtracting seven days for potential holiday interruptions, we conclude Ronnie and Jimmy had more

than a month to prepare their case before Mask’s motion for summary judgment was filed.

Furthermore, the probate court granted Ronnie and Jimmy’s motion for continuance on February 28,

2007 and postponed the summary judgment hearing for ninety days. Mask did not request a jury trial

until March 16, 2007, so Ronnie and Jimmy had two and a half months to focus solely on the

summary judgment hearing, and Mask’s April 12, 2007 request for a protective order was denied.

Ronnie and Jimmy had more than five months to request discovery from the time they filed their will

contest until the summary judgment hearing. The record shows that Ronnie and Jimmy had “ample

time to conduct, and did conduct, discovery” resulting in nine depositions, ten affidavits, and

numerous supporting documents. See BMC Software Belg., N.V., 83 S.W.3d at 800. Importantly,

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during the summary judgment hearing, the probate judge granted seven additional days to both

parties to submit additional summary judgment proof. During this extension, Ronnie and Jimmy

filed twenty-six additional exhibits. Although the probate judge denied Ronnie and Jimmy’s post-

hearing motion for continuance, the judge effectively granted a seven-day continuance to both

parties. More importantly, however, while Ronnie and Jimmy claimed to need particular evidence,

Ronnie and Jimmy failed to state with particularity how the evidence was material and how they

were diligent in obtaining it. Rocha, 69 S.W.3d at 319. Because we find the probate court did not

abuse its discretion by denying Ronnie and Jimmy’s motion for continuance, we overrule Ronnie

and Jimmy’s third issue.

LACK OF JURISDICTION TO PROBATE WILL AND APPROVE FINAL ACCOUNTING

Ronnie and Jimmy, in their final issue, argue that the assigned statutory probate judge lacked

jurisdiction to probate the will and codicil and approve a final accounting pending this appeal. In

counties such as Uvalde, with no statutory court having probate jurisdiction, all probate matters must

be filed in the county court. See TEX . PROB. CODE ANN . § 5(b) (Vernon Supp. 2007). However, in

contested probate matters, on the motion of a party to the contest, a statutory probate judge shall be

appointed to preside over the contested issues as provided by section 25.0022 of the Texas

Government Code.6 Id. at § 5(b)(1). The assigned statutory probate judge obtains the jurisdiction

and authority granted to a statutory probate court by Probate Code sections 5A and 5B concerning

the contested issues. Id. § 5(b-2). Upon the resolution of the contested matter, including the appeal

of a matter, the statutory probate judge must transfer the resolved portion of the case to the county

6 … T EX . G O V ’T C O D E A N N . § 25.0022 (Vernon Supp. 2007) (describing the eligibility of statutory probate judges).

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court for further proceedings consistent with the orders of the statutory probate judge. Id. The

county court continues to exercise jurisdiction over the management of the estate, with the exception

of the contested matter, until final disposition of the contested matter by the assigned statutory judge.

Id. at § 5(b-4).

Here, Ronnie and Jimmy filed a motion requesting the assignment of a statutory probate

judge to the contested probate matter. Presiding Judge Guy S. Herman assigned Judge William T.

McGee to “preside over all contested issues in the [Estate of Ella V. Mask] cause with all rights,

powers, privileges held by the regular judge of the court assigned and the attendant jurisdiction of

a Statutory Probate Court.” Mask argues that the “contested probate matter” assigned to Judge

McGee included the: (1) probate of the will and codicil; (2) issuance of letters testamentary; and (3)

issuance of other orders as necessary to carry out the probate of the will, in accordance with Mask’s

application for probate. We agree. Contested probate matters include all matters in a probate

proceeding where the pleadings on file demonstrate that the parties to the suit have adopted

adversarial positions. Jackson v. Thompson, 610 S.W.2d 519, 522 (Tex. Civ. App.—Houston [1st

Dist.] 1980, no writ). Clearly, Ronnie and Jimmy took an adversarial position to Mask by filing a

will contest, asserting that Ella’s will “should not be probated but that it should be declared invalid”

and requesting the “Court enter an order in accordance herewith.” Accordingly, Judge McGee, a

statutory probate judge, had jurisdiction to resolve the contest, probate the will and codicil in dispute,

and issue letters testamentary. See TEX . PROB. CODE ANN . § 5A (Vernon Supp. 2007). However,

we find no evidence in the record that Ronnie and Jimmy challenged the final accounting of

temporary administrator, therefore the final accounting was not a contested issue. Consequently,

Judge McGee’s order approving the temporary administrator’s final accounting is void for want of

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jurisdiction, and we sustain Ronnie and Jimmy’s issue by reversing the order approving the

temporary administrator’s final accounting.7 See TEX . PROB. CODE ANN . § 5(b)(1), (b-2) (Vernon

Supp. 2007)

DAMAGES FOR FRIVOLOUS APPEAL

Mask filed a “Motion Seeking Damages for Appellant’s Frivolous Appeal,” alleging that

Ronnie and Jimmy “have no reasonable chance of winning this appeal and are pursuing it solely to

tie up the Estate, preventing it from paying its debts and distributing its assets to its rightful

beneficiaries.” Mask offers his summary judgment evidence as proof that Ronnie and Jimmy cannot

prevail on appeal.

Appellate courts have the discretion to award damages for frivolous appeals. TEX . R. APP .

P. 45. “[W]e exercise [this discretion] with prudence and caution, and only after careful

deliberation,” and we impose sanctions “only in circumstances that are truly egregious.” Chapman

v. Hootman, 999 S.W.2d 118, 124 (Tex. App.—Houston [14th Dist.] 1999, no pet.). In determining

whether sanctions are appropriate, we must not look to matters outside our purview, rather we must

carefully consider “the record, briefs, or other papers filed in the court of appeals.” See TEX . R. APP .

P. 45; Herring v. Welborn, 27 S.W.3d 132, 145 (Tex. App.—San Antonio 2000, pet. denied). An

award of sanctions on appeal “will be imposed only if the record clearly shows the appellant has no

reasonable expectation of reversal.” Campos v. Inv. Mgmt. Props., Inc., 917 S.W.2d 351, 356 (Tex.

7 … Ronnie and Jimmy make a vague argument regarding a lack of notice of the hearing to admit the will to probate. Ronnie and Jimmy fail to cite any statutes or case law supporting their contention and waive their complaint due to inadequate briefing. See T EX . R. A PP . P. 38.1(h); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W .2d 279, 284-85 (Tex. 1994). However, upon a cursory examination of the record, we find Ronnie and Jimmy were given notice by Judge McGee of his intention to probate the will in Uvalde on August 28, 2007 via letter dated August 20, 2007.

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App.—San Antonio 1996, writ denied). Therefore, if Ronnie and Jimmy’s argument has “a

‘reasonable basis in law and constitute[s] an informed, good faith challenge to the trial court’s

judgment,’” sanctions are not appropriate. See Herring, 27 S.W.3d at 145 (citing Gen. Elec. Credit

Corp. v. Midland Cent. Appraisal Dist., 826 S.W.2d 124, 125 (Tex. 1991) (per curiam)).

Although Ronnie and Jimmy have employed attorneys to represent them in other phases of

this contest, they have presented this appeal pro se. While Ronnie and Jimmy failed to sufficiently

brief some of their issues and sometimes failed to provide appropriate supporting documents from

the clerk’s record, Ronnie and Jimmy have made a good-faith challenge to the trial court’s judgment.

See Mallios v. Standard Ins. Co., 237 S.W.3d 778, 783 (Tex. App.—Houston [14th Dist.] 2007, pet.

denied). Even though Ronnie and Jimmy are not excused from proper briefing requirements, see

Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978), we decline to award sanctions

under these circumstances. Mask’s motion for sanctions is denied.

CONCLUSION

For the reasons set forth above, we affirm the probate court’s summary judgment in favor of

Mask and the orders probating the will and codicil and issuing letters testamentary. We reverse the

order approving the temporary administrator’s final accounting because it was not a contested matter

assigned to the probate court, and we deny Mask’s motion for sanctions. This cause is remanded for

further proceedings consistent with this opinion.

Alma L. López, Chief Justice

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