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MEMORANDUM OPINION
No. 04-07-00757-CV
IN RE THE ESTATE OF Gert L. RABKE, Deceased
From Probate Court No. 1, Bexar County, Texas Trial Court No. 2005-PC-2895 Honorable Polly Jackson Spencer, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Phylis J. Speedlin, Justice
Delivered and Filed: January 28, 2009
AFFIRMED
After Gert L. Rabke passed away in 2005, Paul von Beck-Lutes contested her will, claiming
he was Rabke’s common law husband, or alternatively, that Rabke made a nuncupative will while
on her deathbed. The trial court granted a No Evidence Motion for Partial Summary Judgment on
both issues. Beck-Lutes’s claims were severed, and he appeals the trial court’s orders.
FACTUAL AND PROCEDURAL HISTORY
When Rabke passed away in 2005, her only daughter, Gabriele Arning, filed an application
to probate the will her mother had executed about ten years earlier, which named Arning as both
primary beneficiary and independent executor of her mother’s estate. Beck-Lutes filed pleadings 04-07-00757-CV
contesting Arning’s application, claiming he was Rabke’s common law husband during the last
several years of her life. Beck-Lutes alleged the will Arning offered for probate had been revoked,
and Rabke either died intestate leaving him a right to her inheritance as her surviving spouse, or
alternatively, that Rabke made a nuncupative will naming Beck-Lutes as a beneficiary. The trial
court appointed a temporary administrator of Rabke’s estate. Arning filed a No Evidence Motion
for Partial Summary Judgment on the issue of Beck-Lutes’s standing to contest the will, which was
granted by the trial court. In addition, the trial court entered sanctions against Beck-Lutes in the
form of a deemed finding that he was not Rabke’s common law spouse, and it prohibited Beck-Lutes
from offering further support to his claim that he was ever Rabke’s spouse. The trial court severed
Beck-Lutes’s claims, and he filed a notice of appeal.
Beck-Lutes challenges the trial court’s order in six issues, contending: (1) he is entitled to
a new trial pursuant to Texas Rule of Appellate Procedure 34.6(b); (2) the trial court erred in
granting the No Evidence Partial Motion for Summary Judgment because Beck-Lutes presented more
than a scintilla of evidence that he was Rabke’s common law spouse; (3) the trial court erred in
granting the No Evidence Partial Motion for Summary Judgment on the nuncupative (oral) will
because there was inadequate time for discovery; (4) the trial court abused its discretion in granting
discovery sanctions against Beck-Lutes; (5) the trial court abused its discretion in denying Beck-
Lutes a jury trial; and (6) the trial court acted without jurisdiction in granting discovery sanctions
after granting the motion for summary judgment. We affirm the trial court’s order.
NEW TRIAL
Beck-Lutes argues that he is entitled to a new trial under Texas Rule of Appellate Procedure
34.6(f), which provides that an appellant is entitled to a new trial under the following circumstances:
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(1) if the appellant has timely requested a reporter’s record;
(2) if, without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed or—if the proceedings were electronically recorded—a significant portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or destroyed exhibit, is necessary to the appeal’s resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.
TEX . R. APP . P. 34.6(f). An appellant fails to satisfy Rule 34.6(f) when he fails to show that the
missing portion of the record is necessary to his appeal. See Landry’s Seafood House-Addison, Inc.
v. Snadon, 233 S.W.3d 430, 437 (Tex. App.—Dallas 2007, pet. denied); Gavrel v. Rodriguez, 225
S.W.3d 758, 761 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
Beck-Lutes argues that he should be afforded a new trial due to a missing portion of the
record from a December 2005 hearing. Beck-Lutes contends that during this hearing, all parties
referred to him as Rabke’s husband, and the court took judicial notice of the fact that he was Rabke’s
husband. After entering several requests for a transcript of the hearing, the court reporter filed a
statement with the court indicating that although a record was taken, she was unable to produce the
transcript. The court reporter stated that she took an electronic, paperless record of the transcript
which was transferred to a defective disc. Although the court reporter attempted to use a recovery
program, she was unable to recover the information. Beck-Lutes argues that the record of the trial
court taking judicial notice of his common law marriage nullifies the no evidence summary judgment
against him.
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Rule 201(b) of the Texas Rules of Evidence states that “[a] judicially noticed fact must be
one not subject to reasonable dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” TEX . R. EVID . 201(b). This rule applies only to
adjudicative facts, which are facts pertaining to a particular case. See O’Connell v. State, 17 S.W.3d
746, 749 (Tex. App.—Austin 2000, no pet.). Before a fact can be judicially noticed, it must be
verifiably certain and relatively undisputable. See Havins v. First Nat. Bank of Paducah, 919
S.W.2d 177, 184 (Tex. App.—Amarillo 1996, no writ).
The record does not support Beck-Lutes’s claim that the trial court took judicial notice of his
alleged common law marriage. First, whether Beck-Lutes was Rabke’s common law husband was
a fact issue in dispute throughout the proceedings. Courts take judicial notice only of adjudicative
facts that are not subject to reasonable dispute. See TEX . R. EVID . 201(b). In this case, just five
months after the December 2005 hearing, Beck-Lutes filed a Motion to Establish Common Law
Marriage, seeking a court finding that he was in fact Rabke’s common law husband. If the court had
taken judicial notice of this fact in December, there would have been no need for Beck-Lutes to file
such a motion or request a hearing. His actions following the December 2005 hearing indicate the
issue of the common law marriage had not been settled, and in fact continued until the court issued
the No Evidence Partial Summary Judgment, finding that Beck-Lutes was not Rabke’s common law
spouse, and prohibiting him from offering further support to his claim that he was ever Rabke’s
spouse. Finally, while the transcript may have included other parties referring to the couple as
married, this is not evidence that the trial court made such a determination. Consequently, Beck-
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Lutes has failed to prove the reporter’s lost record is necessary to this appeal’s resolution, and his
first issue is overruled.
COMMON LAW MARRIAGE CLAIM
In his second issue, Beck-Lutes claims the trial court erred in granting Arning’s No Evidence
Motion for Partial Summary Judgment, finding that Beck-Lutes was not Rabke’s common law
spouse. Beck-Lutes first argues that he was not properly served with notice of the summary
judgment hearing. Rule 21a of the Texas Rules of Civil Procedure states:
Every notice required by these rules, and every pleading, plea, motion, or other form of request required to be served under Rule 21 . . . may be served by delivering a copy to the party to be served, or the party’s duly authorized agent or attorney of record, as the case may be, either in person or by agent or by courier receipted delivery or by certified or registered mail, to the party’s last known address . . . . Service by mail shall be complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service . . . . Nothing herein shall preclude any party from offering proof that the notice or instrument was not received, or, if service was by mail, that it was not received within three days from the date of deposit in a post office or official depository under the care and custody of the United States Postal Service, and upon so finding, the court may extend the time for taking the action required of such party or grant such other relief as it deems just.
TEX . R. CIV . P. 21a. Even when a party does not receive actual notice, “constructive notice” may
be established if the serving party has complied with the requirements of Rule 21a, and presents
evidence that the intended recipient engaged in behaviors such as selective acceptance or refusal of
certified mail relating to the case, or that the intended recipient refused all deliveries of certified
mail. See Etheredge v. Hidden Valley Airpark Ass’n, Inc., 169 S.W.3d 378, 382 (Tex. App.—Fort
Worth 2005, pet. denied); Roberts v. Roberts, 133 S.W.3d 661, 663 (Tex. App.—Corpus Christi
2003, no pet.).
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Beck-Lutes contends Arning and the trial court knew he was not home and was not receiving
notices of the trial court’s hearings, pointing to the fact that the trial court had the San Antonio Police
Department conduct three welfare checks on Beck-Lutes. He contends he was on vacation during
the time most of the notices were served, and that because he did not sign for the certified mail and
his signature is not on file, he was not served. While the trial court did order the welfare checks out
of concern for Beck-Lutes’s health, the record shows that one of Beck-Lutes’s neighbors reported
he was returning from vacation August 21—before the notices for the summary judgment hearing
were mailed to him—and another neighbor reported she saw Beck-Lutes outside his home a few days
later.
The record shows Beck-Lutes was mailed certified notices of the summary judgment hearing
on three separate occasions; in addition, he refused to claim certified mailings from Arning’s
attorneys and the temporary administrator of Rabke’s estate. In fact, Arning presented the trial court
with evidence that no less than ten items were sent by certified mail to Beck-Lutes, and none were
claimed. Over the course of two months, the post office left 20 notices in Beck-Lutes’s mailbox.
During this same period, Beck-Lutes, who was representing himself pro se, continued to send notices
and motions of his own. The trial court ruled this evidence showed Beck-Lutes received proper
service. We agree.
In the alternative, Beck-Lutes argues that regardless of the notice issue, the court erred in
granting summary judgment because the record contained more than a scintilla of evidence he was
Rabke’s common law spouse. A trial court must grant a proper no-evidence motion for summary
judgment unless the nonmovant produces more than a scintilla of probative evidence to raise a
genuine issue of material fact on the challenged element of the claim. TEX . R. CIV . P. 166a(i). Beck-
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Lutes relies on the fact that the record included a transcript from a hearing in 2005 in which Rabke’s
stepdaughter testified that the couple agreed to be married, held themselves out as married, and lived
together in San Antonio. See TEX . FAM . CODE ANN . § 2.401(a)(2) (Vernon 2006) (outlining elements
of a common law marriage in Texas). He also points to a Durable Power of Attorney document in
which Rabke reportedly identifies Beck-Lutes as her husband.
In light of our determination that service was proper, Beck-Lutes failed to file a timely
response to the No Evidence Motion for Summary Judgment. Pursuant to Texas Rule of Civil
Procedure 166a(c), Beck-Lutes had until September 27, 2007, seven days before the hearing on the
motions for summary judgment, to file either a response to the summary judgment motion or a
motion for leave to file the response after the due date. TEX . R. CIV . P. 166a(c); see Landers v. State
Farm Lloyds, 257 S.W.3d 740, 745 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Rule 166a(c)
provides in pertinent part that, “except on leave of court, the adverse party, not later than seven days
prior to the date of the hearing may file and serve opposing affidavits or other written responses.”
Id. Beck-Lutes’s response to the motion for summary judgment was untimely filed on October 2,
2007, the day before the summary judgment hearing.
Even if Beck-Lutes had filed a timely response, in determining whether a summary judgment
respondent successfully carried its burden, the trial court is not required to wade through a
voluminous record to marshal the respondent’s proof. See Rogers v. Ricane Enters., Inc., 772
S.W.2d 76, 81 (Tex. 1989); Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex. App.—San
Antonio 2006, no pet.). Thus, when presenting summary judgment proof, a party must specifically
identify the supporting proof on file that it seeks to have considered by the trial court. See
Arredondo, 198 S.W.3d at 238. By failing to file a timely response to the summary judgment
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motion, Beck-Lutes necessarily failed to identify for the trial court the hearing transcript or durable
power of attorney document he now wants us to consider as evidence of the trial court’s error in
granting the summary judgment motion.
Finally, Beck-Lutes argues the summary judgment was improper because there had not been
sufficient time for discovery. We cannot say the trial court erred in proceeding to rule on the motion
for summary judgment. Beck-Lutes did not ask for additional time to conduct discovery. More
importantly, the case had been on file for nearly two years, a factor the court could consider.
Based on the above, Beck-Lutes’s second issue is overruled.
NUNCUPATIVE WILL
In his third issue, Beck-Lutes argues the trial court erred in granting the No Evidence Motion
for Partial Summary Judgment on the nuncupative will because there was inadequate time for
discovery. Beck-Lutes made his initial claim regarding the existence of a nuncupative will on
August 30, 2007. Arning filed a No Evidence Motion for Partial Summary Judgment on both the
common law marriage and the nuncupative will on September 7, 2007. Beck-Lutes argues that six
days was inadequate for discovery on the issue of the nuncupative will. However, “[w]hen a party
contends that it has not had an adequate opportunity for discovery before a summary judgment
hearing, it must file either an affidavit explaining the need for further discovery or a verified motion
for continuance.” Tenneco Inc. v. Enterprise Products Co., 925 S.W.2d 640, 647 (Tex. 1996) (citing
TEX . R. CIV . P. 166a(g), 251, 252). Beck-Lutes failed to do either, and consequently waived this
issue for appeal. See id. Beck-Lutes’s third issue is overruled.
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DISCOVERY SANCTIONS
In his fourth issue, Beck-Lutes argues the trial court abused its discretion granting discovery
sanctions against Beck-Lutes. In determining whether sanctions are appropriate, we consider
whether a direct relationship existed between the offensive conduct and the sanction imposed, and
whether the sanctions were excessive. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d
913, 917 (Tex. 1991). “[A] sanction imposed for discovery abuse should be no more severe than
necessary to satisfy its legitimate purposes, which include securing compliance with discovery rules,
deterring other litigants from similar misconduct, and punishing violators.” Spohn Hosp. v. Mayer,
104 S.W.3d 878, 882 (Tex. 2003) (citing TransAmerican, 811 S.W.2d at 917; Chrysler Corp. v.
Blackmon, 841 S.W.2d 844, 849 (Tex. 1992)).
On June 4, 2007, Arning served Beck-Lutes a set of ten interrogatories and twenty-five
document requests. Pursuant to the Texas Rules of Civil Procedure, Beck-Lutes had thirty-three
days to submit responses to Arning. TEX . R. CIV . PROC. 197.2(a), 196.2(a). Beck Lutes missed the
July 9 deadline. On June 29, Beck-Lutes’s attorney was replaced by a different attorney; on July 2,
the new attorney filed a Motion for Continuance and Entry of Scheduling Order. The motion was
heard and granted, and a written order was signed July 20. On that same day, Beck-Lutes’s new
attorney withdrew from the case; from that point forward, he represented himself pro se.
In the order signed July 20, the trial court extended Beck-Lutes’s discovery deadline, giving
him until August 3, 2007 to respond to Arning’s earlier discovery request. Beck-Lutes did not
comply with the trial court’s order. On August 31, Arning filed and served a motion for sanctions
against Beck-Lutes for discovery abuse; the motion included a notice setting the motion for hearing
on October 3, 2007. On October 3, in addition to granting Arning’s motion for summary judgment
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against Beck-Lutes, the trial court also granted a motion for discovery sanctions against him based
on his refusal to respond to Arning’s discovery requests.
Beck-Lutes argues that the discovery sanctions were unjustified because he had no notice that
any discovery responses were ever due, as he did not receive notice of Arning’s discovery motions
or the discovery orders in July, August, and September leading up to the entry of the October 3
sanctions order. However, the same reasoning utilized in our discussion of issue two applies here.
Arning produced evidence that notice of the discovery motions was sent to Beck-Lutes in
compliance with Rule 21a of the Texas Rules of Civil Procedure. See TEX . R. CIV . P. 21a. Although
Beck-Lutes claims he did not receive notice because he never accepted the documents, certified
notices were sent to his permanent address. Even if he did not receive actual notice, constructive
notice was established by Arning’s compliance with Rule 21a and evidence showing that Beck-
Lutes appeared to participate in selective acceptance of case documents. See Etheredge v. Hidden
Valley Airpark Ass’n, Inc., 169 S.W.3d 378, 382 (Tex. App.—Fort Worth 2005, pet. denied);
Roberts v. Roberts, 133 S.W.3d 661, 663 (Tex. App.—Corpus Christi 2003, no pet.).
The sanctions imposed on Beck-Lutes, namely the finding that he was never the common law
spouse of Rabke and could no longer make any claims to that effect, directly related to his offensive
conduct: failing to supply discovery responses to Arning on that very issue. See TransAmerican, 811
S.W.2d at 917 (requiring a direct relationship between the offensive conduct and the sanction
imposed). Considering the length of time the case had been on the docket, as well as the many
notices sent to Beck-Lutes and the numerous opportunities given to him to appear before the court
and argue his case, the sanctions imposed were not excessive. See id. (holding that in order to be
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just, discovery sanctions cannot be excessive). Consequently, we conclude the discovery sanctions
imposed were just and appropriate. Beck-Lutes’s fourth issue is overruled.
JURY TRIAL
In his fifth issue, Beck-Lutes argues the trial court abused its discretion in denying him a
properly demanded jury trial. The summary judgment process provides a method of terminating
a case when only questions of law are involved and there are no genuine issues of fact. See Bliss v.
NRG Industries, 162 S.W.3d 434, 437 (Tex. App.—Dallas 2005, pet. denied). While the summary
judgment process does not deprive parties of a jury trial where material questions of fact exist, if
there is nothing to submit to a jury, then the grant of summary judgment does not violate a party’s
constitutional right to a jury trial. See id. See also Lattrell v. Chrysler Corp., 79 S.W.3d 141, 150
(Tex. App.—Texarkana 2002, pet. denied). Because we conclude the trial court properly granted
summary judgment determining Beck-Lutes was not Rabke’s common law spouse, there was no
genuine issue of material fact concerning Beck-Lutes’s claim he was Rabke’s husband.
Beck-Lutes argues that he is also entitled to a jury trial because a “defaulting” defendant in
a family law matter is still entitled to rely on a jury demand and have a jury trial on any fact
questions related to the family law issue when the jury demand is not struck. This argument is
premised on the holding in In re A.S., 241 S.W.3d 661, 665-66 (Tex. App.—Texarkana 2007, no
pet.) (holding the effect of default in a custody modification proceeding is different from other
defaults in that allegations in the motion to modify may not be taken as confessed for want of an
answer, and even on default the movant must prove up the required allegations of the motion to
modify). However, the ruling of the trial court in In re A.S. was specifically directed at cases
involving modification of the parent-child relationship, as outlined in section 105.002 of the Family
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Code. See id; TEX . FAM . CODE ANN . § 105.002(c)(1) (Vernon Supp. 2008). This ruling does not
apply to cases involving establishment of a common law marriage. Consequently, Beck-Lutes had
no right to a jury trial following the trial court’s summary judgment decision, and his fifth issue is
overruled.
JURISDICTION TO GRANT SANCTIONS
In his sixth issue, Beck-Lutes argues the trial court acted without jurisdiction in granting
discovery sanctions after granting the Motion for Partial Summary Judgment. Beck-Lutes contends
the case finalized upon the trial court granting the summary judgment against him, and therefore, the
court lost jurisdiction to take further action against him. See Bazan v. Canales, 200 S.W.3d 844, 848
(Tex. App.—Corpus Christi 2006, no pet.) (stating that once a final judgment is rendered, the court
loses jurisdiction to grant additional relief). However, a summary judgment that fails to dispose
expressly of all parties and issues in the pending suit is interlocutory and not appealable unless a
severance of that phase of the case is ordered by the trial court. See Sada De Ayala v. Merrill Lynch
and Co., Inc., No. 04-01-00615-CV, 2002 WL 598460, *1 (Tex. App.—San Antonio April 17, 2002,
no pet.). The sanctions order and the partial summary judgment order were signed
contemporaneously, and both orders remained interlocutory until the Order of Severance was signed
on October 22, 2007. Consequently, the court had jurisdiction when it signed the sanctions order
against Beck-Lutes. His sixth issue is overruled.
DAMAGES FOR FRIVOLOUS APPEAL
Arning filed a “Motion Seeking Damages for Appellant's Frivolous Appeal,” alleging that
Beck-Lutes’s appeal was so lacking in merit that it must be deemed frivolous. Appellate courts have
the discretion to award damages for frivolous appeals. TEX . R. APP . P. 45. “[W]e exercise [this
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discretion] with prudence and caution, and only after careful deliberation,” and we impose sanctions
“only in circumstances that are truly egregious. In re Estate of Mask, No. 04-07-00667-CV, 2008 WL
4595027, *17 (Tex. App.—San Antonio Oct. 15, 2008, no pet. h.) (citing Chapman v. Hootman, 999
S.W.2d 118, 124 (Tex. App.—Houston [14th Dist.] 1999, no pet). Beck-Lutes has made a good-faith
challenge to the trial court’s judgment. See id. We decline to award sanctions under these
circumstances. Arning’s motion for sanctions is denied.
CONCLUSION
Beck-Lutes failed to prove he was entitled to a new trial pursuant to Rule 34.6(b) of the Texas
Rules of Appellate Procedure. In addition, the trial court did not err in granting the No Evidence
Motion for Partial Summary Judgment on the common law marriage claim and the nuncupative will
claim, nor did the trial court abuse its discretion in granting discovery sanctions against Beck-Lutes
or in denying Beck-Lutes a jury trial. Finally, the trial court acted within its jurisdiction in granting
discovery sanctions contemporaneously with granting the No Evidence Motion for Partial Summary
Judgment. Accordingly, the trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
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