Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-17-00697-CV
IN THE ESTATE OF June Magdeline BREWER
From the 198th Judicial District Court, Bandera County, Texas Trial Court No. CVOC-XX-XXXXXXX Honorable M. Rex Emerson, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice
Delivered and Filed: December 27, 2018
AFFIRMED
Terry June Abbott (“Terry”) appeals from the summary judgment granted in favor of
Thomas Wesley Abbott (“Thomas”). On appeal, Terry argues the trial judge erred in preventing
her from presenting evidence and in not exercising “his authority to postpone the summary hearing
until at such time [her] substantial and preponderance of evidence could be formally presented to
[the judge] and opposing counsel.” We affirm the judgment of the trial court.
BACKGROUND
Siblings Terry and Thomas are the children of June Magdeline Brewer, who passed away
on May 13, 2016 at the age of eighty-three. On May 24, 2016, Thomas filed an application to
probate the will of his mother as a muniment of title and provided a will dated April 22, 2015.
Terry then filed an opposition to Thomas’s application, alleging that the April 22, 2015 will was 04-17-00697-CV
invalid due to lack of testamentary capacity and undue influence. Terry also alleged that Thomas
had breached his fiduciary duty to the decedent.
On August 29, 2017, Thomas filed no-evidence and traditional motions for summary
judgment. In his no-evidence motion for summary judgment, Thomas argued Terry did not have
evidence that (1) the decedent lacked testamentary capacity, (2) Thomas exerted undue influence
over the decedent in the execution of the will, and (3) Thomas breached a fiduciary duty to the
decedent. In his traditional motion for summary judgment, Thomas argued that (1) the testator was
of sound mind at the time the will was executed, (2) the will was not procured due to undue
influence, and (3) Thomas did not breach a fiduciary duty to his mother. As evidence to support
his traditional motion for summary judgment, Thomas attached his mother’s self-proving will
dated April 22, 2015; an affidavit by the attorney who prepared the will, Susan Sims; and an
affidavit signed by Thomas.
According to the April 22, 2015 will, it was signed by the testator in the presence of two
witnesses. In her affidavit, Sims affirms that she knew the testator “professionally since 1993” and
that before she prepared the will, she interviewed the testator “to ascertain her testamentary
intentions and desires.” According to Sims, the testator expressed “her intention to revoke her prior
will dated March 27, 2003” and provided “specific reasons to explain why she wanted to give
everything to her son, Thomas Abbott, rather than to her daughter, Terry Abbott.” Sims affirmed
that in preparing the will, she “used language to reflect the exact instructions of” the testator. The
affidavit states that “[a]t all times during the estate-planning interview and on the day of the will-
signing,” the testator “was clearly of sound mind and possessed testamentary capacity to execute
her last will and testament.” Before the testator executed the will, she “swore that she had read and
understood the terms of her last will and testament, that she was over the age of eighteen, that it
was her intention to revoke all prior wills and codicils and that it was her intention to create a new -2- 04-17-00697-CV
last will and testament.” Sims further affirmed that the witnesses present “swore that they were
over the age of fourteen, that they believed the testatrix to be of sound mind, and that they knew
they were witnessing Ms. Abbott’s signing of her last will and testament.” According to Sims’s
affidavit, Ms. Abbott then executed her will dated April 22, 2015 in the presence of Sims and “two
competent disinterested witnesses.” The affidavit further states that “Ms. Abbott’s last will and
testament was self-proved and executed with the formalities, solemnities required by law to make
it a valid will, and no suspicious circumstances attended the signing of Ms. Abbott’s will.”
In his affidavit, Thomas affirmed that he had a “strong relationship” with his mother, “took
care” of her, and “met her needs as she aged and as her health deteriorated.” He further affirmed
that before his mother passed away, she “modified one of her bank accounts to add [him] as a co-
signor on the account.” According to Thomas’s affidavit, he did not misappropriate any of his
mother’s funds; he did not remove any funds except at his mother’s “direct instruction”; and any
funds expended by him were for his mother or for her benefit. He affirmed that all actions he took
during the time he acted as his mother’s caretaker “were taken in her best interest.”
On September 18, 2017, the trial court set the hearing on Thomas’s no-evidence and
traditional motions for summary judgment for October 13, 2017 at 10:00 a.m. On October 10,
2017, Terry filed a pro se response to Thomas’s no-evidence motion for summary judgment, but
did not attach any evidence to her response. 1 On October 13, 2017, Thomas filed a motion to strike
Terry’s response, arguing that her response had not been timely served. Although Terry’s response
certified it had been served on Thomas on October 10, 2017, counsel for Thomas was not in fact
1 At the time Terry filed her opposition to Thomas’s application to probate their mother’s will, Terry was represented by counsel. However, by the time Terry filed her response to Thomas’s no-evidence and traditional motions for summary judgment, she was no longer represented by counsel and was proceeding pro se.
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served until the late afternoon of October 12, 2017, which was untimely pursuant to Texas Rule
of Civil Procedure 166a(c).
At 10:00 a.m. on October 13, 2017, the trial judge began the summary judgment hearing.
Terry was not present. Thomas argued that her response should be struck because it was untimely
served on him. The trial judge agreed and granted Thomas’s motion to strike Terry’s response.
Terry then entered the courtroom. The trial judge noted on the record that Terry was late to the
hearing. The trial judge informed Terry that he had just granted Thomas’s motion to strike her
response. Terry then attempted to introduce evidence in response to Thomas’s motions for
summary judgment, stating that she wanted the trial judge to take judicial notice of medical records
and other documents relating to her mother. Thomas objected, explaining that Terry had not filed
any evidence before the summary judgment hearing. The trial judge then explained to Terry that
“the procedures in a motion for summary judgment require[d] that [her] responsive evidence be
submitted in writing to the court in a written response because the actual hearing itself is not an
evidentiary hearing.” When Terry then repeatedly attempted to testify as to the facts over Thomas’s
objections, the trial judge granted Thomas’s counsel “a running objection to any evidence that may
be argued before the Court.” The trial judge then granted Thomas’s no-evidence and traditional
motions for summary judgment. Terry appealed. 2
DISCUSSION
Terry first complains that the trial judge prevented her from presenting evidence at the
summary judgment hearing. To defeat Thomas’s no-evidence motion for summary judgment,
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-17-00697-CV
IN THE ESTATE OF June Magdeline BREWER
From the 198th Judicial District Court, Bandera County, Texas Trial Court No. CVOC-XX-XXXXXXX Honorable M. Rex Emerson, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice
Delivered and Filed: December 27, 2018
AFFIRMED
Terry June Abbott (“Terry”) appeals from the summary judgment granted in favor of
Thomas Wesley Abbott (“Thomas”). On appeal, Terry argues the trial judge erred in preventing
her from presenting evidence and in not exercising “his authority to postpone the summary hearing
until at such time [her] substantial and preponderance of evidence could be formally presented to
[the judge] and opposing counsel.” We affirm the judgment of the trial court.
BACKGROUND
Siblings Terry and Thomas are the children of June Magdeline Brewer, who passed away
on May 13, 2016 at the age of eighty-three. On May 24, 2016, Thomas filed an application to
probate the will of his mother as a muniment of title and provided a will dated April 22, 2015.
Terry then filed an opposition to Thomas’s application, alleging that the April 22, 2015 will was 04-17-00697-CV
invalid due to lack of testamentary capacity and undue influence. Terry also alleged that Thomas
had breached his fiduciary duty to the decedent.
On August 29, 2017, Thomas filed no-evidence and traditional motions for summary
judgment. In his no-evidence motion for summary judgment, Thomas argued Terry did not have
evidence that (1) the decedent lacked testamentary capacity, (2) Thomas exerted undue influence
over the decedent in the execution of the will, and (3) Thomas breached a fiduciary duty to the
decedent. In his traditional motion for summary judgment, Thomas argued that (1) the testator was
of sound mind at the time the will was executed, (2) the will was not procured due to undue
influence, and (3) Thomas did not breach a fiduciary duty to his mother. As evidence to support
his traditional motion for summary judgment, Thomas attached his mother’s self-proving will
dated April 22, 2015; an affidavit by the attorney who prepared the will, Susan Sims; and an
affidavit signed by Thomas.
According to the April 22, 2015 will, it was signed by the testator in the presence of two
witnesses. In her affidavit, Sims affirms that she knew the testator “professionally since 1993” and
that before she prepared the will, she interviewed the testator “to ascertain her testamentary
intentions and desires.” According to Sims, the testator expressed “her intention to revoke her prior
will dated March 27, 2003” and provided “specific reasons to explain why she wanted to give
everything to her son, Thomas Abbott, rather than to her daughter, Terry Abbott.” Sims affirmed
that in preparing the will, she “used language to reflect the exact instructions of” the testator. The
affidavit states that “[a]t all times during the estate-planning interview and on the day of the will-
signing,” the testator “was clearly of sound mind and possessed testamentary capacity to execute
her last will and testament.” Before the testator executed the will, she “swore that she had read and
understood the terms of her last will and testament, that she was over the age of eighteen, that it
was her intention to revoke all prior wills and codicils and that it was her intention to create a new -2- 04-17-00697-CV
last will and testament.” Sims further affirmed that the witnesses present “swore that they were
over the age of fourteen, that they believed the testatrix to be of sound mind, and that they knew
they were witnessing Ms. Abbott’s signing of her last will and testament.” According to Sims’s
affidavit, Ms. Abbott then executed her will dated April 22, 2015 in the presence of Sims and “two
competent disinterested witnesses.” The affidavit further states that “Ms. Abbott’s last will and
testament was self-proved and executed with the formalities, solemnities required by law to make
it a valid will, and no suspicious circumstances attended the signing of Ms. Abbott’s will.”
In his affidavit, Thomas affirmed that he had a “strong relationship” with his mother, “took
care” of her, and “met her needs as she aged and as her health deteriorated.” He further affirmed
that before his mother passed away, she “modified one of her bank accounts to add [him] as a co-
signor on the account.” According to Thomas’s affidavit, he did not misappropriate any of his
mother’s funds; he did not remove any funds except at his mother’s “direct instruction”; and any
funds expended by him were for his mother or for her benefit. He affirmed that all actions he took
during the time he acted as his mother’s caretaker “were taken in her best interest.”
On September 18, 2017, the trial court set the hearing on Thomas’s no-evidence and
traditional motions for summary judgment for October 13, 2017 at 10:00 a.m. On October 10,
2017, Terry filed a pro se response to Thomas’s no-evidence motion for summary judgment, but
did not attach any evidence to her response. 1 On October 13, 2017, Thomas filed a motion to strike
Terry’s response, arguing that her response had not been timely served. Although Terry’s response
certified it had been served on Thomas on October 10, 2017, counsel for Thomas was not in fact
1 At the time Terry filed her opposition to Thomas’s application to probate their mother’s will, Terry was represented by counsel. However, by the time Terry filed her response to Thomas’s no-evidence and traditional motions for summary judgment, she was no longer represented by counsel and was proceeding pro se.
-3- 04-17-00697-CV
served until the late afternoon of October 12, 2017, which was untimely pursuant to Texas Rule
of Civil Procedure 166a(c).
At 10:00 a.m. on October 13, 2017, the trial judge began the summary judgment hearing.
Terry was not present. Thomas argued that her response should be struck because it was untimely
served on him. The trial judge agreed and granted Thomas’s motion to strike Terry’s response.
Terry then entered the courtroom. The trial judge noted on the record that Terry was late to the
hearing. The trial judge informed Terry that he had just granted Thomas’s motion to strike her
response. Terry then attempted to introduce evidence in response to Thomas’s motions for
summary judgment, stating that she wanted the trial judge to take judicial notice of medical records
and other documents relating to her mother. Thomas objected, explaining that Terry had not filed
any evidence before the summary judgment hearing. The trial judge then explained to Terry that
“the procedures in a motion for summary judgment require[d] that [her] responsive evidence be
submitted in writing to the court in a written response because the actual hearing itself is not an
evidentiary hearing.” When Terry then repeatedly attempted to testify as to the facts over Thomas’s
objections, the trial judge granted Thomas’s counsel “a running objection to any evidence that may
be argued before the Court.” The trial judge then granted Thomas’s no-evidence and traditional
motions for summary judgment. Terry appealed. 2
DISCUSSION
Terry first complains that the trial judge prevented her from presenting evidence at the
summary judgment hearing. To defeat Thomas’s no-evidence motion for summary judgment,
Terry was required to have produced summary-judgment evidence raising a genuine issue of
2 In her notice of appeal, Terry states her intent to appeal from the trial court’s no-evidence summary judgment. Her notice of appeal makes no reference to the trial court’s Final Summary Judgment that also granted Thomas’s traditional motion for summary judgment.
-4- 04-17-00697-CV
material fact as to each of the challenged elements. See TEX. R. CIV. P. 166a(i); Boerjan v.
Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014). Her deadline for filing and serving such evidence
was seven days before the summary judgment hearing unless she obtained leave of court. See TEX.
R. CIV. P. 166a(c) (providing 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”); Landers v. State Farm Lloyds, 257 S.W.3d 740, 745 (Tex. App.—Houston [1st Dist.]
2008, no pet.) (explaining that respondent to no-evidence motion for summary judgment has until
seven days before the hearing on the motion for summary judgment to file either a response to the
motion “or a motion for leave to file the response out of time”). “A trial court may accept late-
filed summary judgment evidence, but it must affirmatively indicate that it accepted or considered
that evidence.” SP Terrace, LP v. Meritage Homes of Tex., LLC, 334 S.W.3d 275, 281-82 (Tex.
App.—Houston [1st Dist.] 2010, no pet.).
In this case, Terry did not file and serve summary judgment evidence in response to
Thomas’s no-evidence and traditional motions for summary judgment. Nor did she seek leave of
court to file and serve her summary judgment evidence untimely. Instead, she appeared late at the
summary judgment hearing and attempted to introduce evidence as a party would in an evidentiary
hearing. Although Terry was proceeding pro se at the summary judgment hearing, pro se litigants
are held to the same standards as licensed attorneys and must comply with all applicable rules of
procedure. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). Where, as
here, a party files a no-evidence summary judgment motion complying with Texas Rule of Civil
Procedure 166a(i), 3 “the trial court must grant summary judgment absent a timely and legally
3 Although Terry does not complain on appeal about the sufficiency of Thomas’s no-evidence motion for summary judgment, in reviewing the record, we note that Thomas’s no-evidence motion for summary judgment complies with Texas Rule of Civil Procedure 166a(i) by identifying the elements of Terry’s causes of action upon which she would have the burden of proof at trial that lack evidence. See TEX. R. CIV. P. 166a(i).
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adequate response by the opposing party.” Cooper v. Litton Loan Servicing, LP, 325 S.W.3d 766,
771 (Tex. App.—Dallas 2010, pet. denied). Because Terry failed to file a timely and legally
adequate response to Thomas’s no-evidence motion for summary judgment, the trial judge did not
err in granting summary judgment in favor of Thomas. See id.
Second, Terry argues the trial judge erred in not exercising “his authority to postpone the
summary hearing until at such time [her] substantial and preponderance of evidence could be
formally presented to [the judge] and opposing counsel.” She also seems to argue that she was not
provided sufficient notice of the hearing or time to respond. The Texas Rules of Civil Procedure
permit a trial court to continue a summary judgment hearing if the respondent shows sufficient
cause. See TEX. R. CIV. P. 166a(g), 251, 252. Additionally, if “a party receives notice that is
untimely, but sufficient to enable the party to attend the summary judgment hearing, the party must
file a motion for continuance and/or raise the complaint of late notice in writing, supported by
affidavit evidence, and raise the issue before the trial court during the summary judgment hearing.”
May v. Nacogdoches Mem’l Hosp., 61 S.W.3d 623, 626 (Tex. App.—Tyler 2001, no pet.). “To
hold otherwise would allow a party who participated in the hearing to lie behind the log until after
the summary judgment is granted and then raise the complaint of late notice for the first time in a
post-trial motion.” Id. Here, Terry did not file a motion for continuance, and she did not raise the
issue before the trial court. Thus, she has failed to preserve this issue for appellate review. See
TEX. R. APP. P. 33.1.
We affirm the judgment of the trial court.
Karen Angelini, Justice
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