Lena Jo Barber v. Dorothea Cangelosi, as Independent of the Estate of Anna Lee Cangelosi

• Court: Court of Appeals of Texas
• Decided: January 14, 2010
• Docket: 01-08-00781-CV
• Status: Published

Opinion

Opinion issued January 14, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00781-CV

LENA JO BARBER, Appellant

V.

DOROTHEA CANGELOSI, INDEPENDENT EXECUTRIX OF THE ESTATE OF ANNA LEE CANGELOSI, Appellee

On Appeal from County Court at Law

Waller County, Texas

Trial Court Cause No. P0577

MEMORANDUM OPINION

          Anna Lee Cangelosi executed her final will in 2004 at age 82, naming her daughter, Dorothea Cangelosi, as executrix and sole beneficiary of her estate.  With respect to Anna Lee’s two remaining children, the 2004 will declares:  “For reasons that seem fair to me I have specifically made no provision for distribution to my son, John Charles Cangelosi, Jr., and my daughter, Lena Jo Barber, both of whom I love very much.” 

After Anna Lee’s death in 2005, Dorothea filed an application to probate her mother’s 2004 will or, alternatively, her mother’s 1999 will, which, like the will that superseded it, also left nothing to John or Lena.  Lena brought a contest to the application, contending, among other things, that the 2004 will was invalid because (1) it lacked due formality; (2) Dorothea had exerted undue influence over her mother; and (3) Anna Lee lacked testamentary capacity on the date of its execution.  A few months before the 2008 trial setting, Lena amended her opposition to the 2004 and 1999 wills to apply for probate of her mother’s 1989 and 1983 wills, both of which named her as a beneficiary.

The trial court granted summary judgment in favor of the estate on Lena’s lack of due formality and undue influence claims, as well as her claims for declaratory relief, resulting trust, constructive trust, breach of fiduciary duty, conversion, and tortious interference with inheritance rights.  The trial court also bifurcated the proceedings, leaving for later disposition Lena’s applications concerning the 1989 and 1983 wills, and proceeded to jury trial on the testamentary capacity challenge to the 2004 will.  The jury found that Anna Lee had testamentary capacity to execute the 2004 will.  Based on that finding, the trial court entered final judgment that Lena take nothing on her claims and admitted the 2004 will to probate. 

          Lena appeals, contending that the trial court erred in (1) granting summary judgment for the estate on her lack of due formality, undue influence, and other claims, (2) entering judgment on the jury finding that Anna Lee had testamentary capacity to execute the 2004 will, (3) bifurcating the proceedings, and (4) denying her proposed jury questions on good faith and just cause in support of her attorney’s fees claim.  We affirm that part of the judgment rendered on the jury’s verdict admitting the 2004 will to probate.  We reverse that part of the judgment denying Lena’s request for attorney’s fees and remand for further proceedings consistent with this opinion. 

BACKGROUND

          Anna Lee suffered from various health problems over the years.  After the death of her husband in 1987, she moved into an assisted living center, where she resided until 2000.  While maintaining her residence at the center, she also spent time living with Dorothea, who helped Anna Lee with her day-to-day needs. 

          Anna Lee owned a large parcel of land in Fort Bend County that became the subject of a condemnation proceeding initiated by Fort Bend Independent School District.  In March 1999, Anna Lee received $798,000 from the school district for the property.  Dorothea, who had a power of attorney from Anna Lee granting her authority to make decisions regarding her assets, deposited these funds in various bank accounts.

          In 2000, Dorothea used the funds to make a down payment on a 100-acre ranch in Waller County.  She took title in her own name and continued to draw on the funds to pay the mortgage and other ranch-related expenses. 

          In 2002, Anna Lee left the assisted living center to move into the ranch with Dorothea.  By this time, Lena had been estranged from her mother for a number of years.  She did not visit, did not call, and, when Anna Lee telephoned, Lena generally refused to take the call. 

          Anna Lee executed her final will and testament on May 12, 2004.  Before that date, she discussed the contents of the will numerous times with her attorney.  When he asked Anna Lee if she wanted to include Lena in the will, she said “Lena Jo never talks to me; she doesn’t come see me.  I can’t talk to her on the phone.  She has a telephone.  She can call, but she won’t talk.  She just—you know, as to Lena Jo, she just doesn’t seem like she cares for me and it hurts.” 

          Anna Lee’s attorney prepared the will and explained it to her paragraph by paragraph before she executed it.  He perceived Anna Lee as knowing the nature and extent of her property and her family, understanding that she was making a will and the effect of making a will, and having sufficient memory to collect in her mind the elements involved in making a will and their relation to each other. 

Some of the medical records from Anna Lee’s occasional hospitalizations in her later life state that she presented as disoriented and as suffering from dementia.  Various friends and family members, however, found Anna Lee articulate and intelligent, and stated that she displayed no signs of dementia in 2003 and 2004.  Anna Lee’s treating physician during the last two years of her life opined that Anna Lee did not suffer from any sort of progressive dementia and he had not perceived any significant decline of her mental abilities.

Proceedings in the trial court

          Three months after Anna Lee’s death, in September 2005, Dorothea applied to probate her mother’s 2004 will, adding an alternative application to probate the 1999 will.  Lena filed an opposition to the probate of that will soon after, alleging that Dorothea had exerted an undue influence over her mother.  Lena later added claims seeking a constructive trust and resulting trust concerning Dorothea’s purchase of the ranch, as well as other inter vivos transfers Anna Lee had made to Dorothea. 

          In January 2008, only a few months before trial, Lena amended her opposition to the probate application again, this time adding to her contest of the 2004 and 1999 wills an application to probate Anna Lee’s 1983 will, or, alternatively, her 1989 will. 

After the trial court granted Dorothea’s motion for summary judgment on all of Lena’s claims but testamentary capacity, it heard Dorothea’s motion to bifurcate the proceedings, in which she requested that the court try the remaining claim in opposition to the 2004 will before presenting the applications for the earlier wills to the jury.  The trial court granted the motion and presented the lack of testamentary capacity claim pertaining to the 2004 will to a jury.  The jury found that Anna Lee had testamentary capacity on the day she executed the 2004 will.  The outcome mooted the remaining applications, and the trial court entered judgment on the jury’s finding. 

DISCUSSION

I.       Summary judgment challenges

          A.      Standard of review

Dorothea moved for summary judgment on both traditional and no evidence grounds, and the trial court’s order grants summary judgment without specifying any grounds.  We review a trial court’s summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  Under the traditional standard for summary judgment, the movant has the burden to show that no genuine issue of material fact exists and that the trial court should grant a 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).  When reviewing a summary judgment motion, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.  Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). 

Traditional summary judgment is proper only if the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c). The motion must state the specific grounds relied upon for summary judgment.  Id.  A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff’s causes of action or conclusively establish each element of an affirmative defense.  Sci. Spectrum, Inc., 941 S.W.2d at 911.

          After adequate time for discovery, a party may move for a no-evidence summary judgment on the ground that no evidence exists to support one or more essential elements of a claim or defense on which the opposing party has the burden of proof.  Tex. R. Civ. P. 166a(i).  The trial court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact.  Id.  More than a scintilla of evidence exists if the evidence “would allow reasonable and fair-minded people to differ in their conclusions.”  Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003).

          B.      Lack of due formality

Lena first contends that the trial court erred in granting summary judgment on her claim that the 2004 will lacked due formality.  Section 59 of the Texas Probate Code sets forth the requisites of a will.  To be valid, a will must be (1) in writing, (2) signed by the testator in person, and (3) attested by two or more credible witnesses above the age of fourteen years who write their signatures in the testator’s presence.  Tex. Prob. Code Ann. § 59(a) (Vernon 2003).  A will may be self-proved, making the witnesses’ appearance in court unnecessary, by including affidavits from the testator and the attesting witnesses containing prescribed language declaring the testator’s appearance and execution of the will.  See id.  Lena concedes that the 2004 will contains a self-proving affidavit, which, once admitted into evidence, makes a prima facie showing that the will was properly executed.  See Bracewell v. Bracewell, 20 S.W.3d 14, 26 (Tex. App.—Houston [14th Dist.] 2000, no pet.).  Dorothea’s motion for summary judgment also establishes that the 2004 will satisfies the requirements of section 59. 

Summary judgment is improper, according to Lena, because Dorothea’s failure to establish that the witnesses independently determined that the testator was of sound mind precludes summary judgment.  Texas law, however, does not require the witnesses to make such a determination, and Lena does not identify any evidence raising a fact issue on the legally recognized requirements.  We therefore hold that the trial court properly granted summary judgment on the lack of due formality claim.

          C.      Undue influence

          Lena next contends that the trial court erred in granting summary judgment on her claims that Anna Lee executed the 2004 and 1994 wills under the undue influence of Dorothea.  To justify setting aside a will because of undue influence, the party contesting its execution bears the burden to prove the (1) existence and exertion of an influence (2) that subverted or overpowered the testator’s mind at the time he executed the instrument (3) so that the testator executed an instrument he would not otherwise have executed but for that influence.  In re Estate of Henry, 250 S.W.3d 518, 523 (Tex. App.—Dallas 2008, no pet.); Long v. Long, 196 S.W.3d 460, 467 (Tex. App.—Dallas 2006, no pet.).

          Lena points to evidence of factors that, in some cases, have shown that an individual had the opportunity to exert undue influence over the testator, but does not identify any evidence raising a fact issue about whether Dorothea actually exerted any influence over Anna Lee in connection with her execution of the 1999 or 2004 will.  “The exertion of undue influence cannot be inferred by opportunity alone.  There must be some evidence to show that the influence was not only present, but in fact exerted with respect to the making of the testament itself.”  Cotten v. Cotten, 169 S.W.3d 824, 827 (Tex. App.—Dallas 2005, pet. denied).  Because the evidence fails to raise a fact issue concerning the exertion of undue influence in Anna Lee’s execution of either the 1999 or 2004 will, the trial court properly granted summary judgment on these claims.

II.      Legal and factual sufficiency of evidence supporting jury finding of testamentary capacity

          We review the sufficiency of the evidence supporting challenged findings of fact by applying the same standards that we use in reviewing the legal or factual sufficiency of the evidence supporting jury findings.  Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).  We review de novo a trial court’s conclusions of law and uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence.  BMC Software Belg. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); In re Moers, 104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.”  City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).  In making this determination, we credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not.  Id.  If the evidence falls within the zone of reasonable disagreement, then we may not substitute our judgment for that of the fact-finder.  Id. at 822.  The fact-finder is the sole judge of the credibility of the witnesses and the weight to give their testimony.  Id. at 819.  In reviewing a factual sufficiency challenge, we consider and weigh all of the evidence supporting and contradicting the challenged finding and set aside the finding only if the evidence is so weak as to make the finding clearly wrong and manifestly unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).

B.      Testamentary capacity

Testamentary capacity means possession of sufficient mental ability at the time of execution of the will (1) to understand the business in which the testator is engaged, the effect of making the will, and the general nature and extent of his property, (2) to know the testator’s next of kin and the natural objects of his bounty, and (3) to have sufficient memory to assimilate the elements of the business to be transacted, to hold those elements long enough to perceive their obvious relation to each other, and to form a reasonable judgment as to them.  Prather v. McClelland, 13 S.W. 543, 546 (Tex. 1890); Guthrie v. Suiter, 934 S.W.2d 820, 829 (Tex. App.—Houston [1st Dist.] 1996, no writ).  The jury heard evidence about Anna Lee’s health problems and conflicting testimony on her mental capacity during the last few decades of her life.  The jury was entitled to assess the witnesses’ credibility and the weight to be given to their testimony.  The evidence presented at trial “would enable reasonable and fair-minded people to reach the verdict under review.”  City of Keller, 168 S.W.3d at 827.  We thus hold that the evidence is legally sufficient to support the jury’s finding of testamentary capacity.

The bulk of the evidence, including testimony from Anna Lee’s attorney, treating physician, relatives, and friends, supports the jury’s finding that Anna Lee had testamentary capacity on the date she executed the 2004 will.  Lena does not point to any specific evidence undermining the jury’s finding.  Instead, she objects to the testimony supporting the finding on various evidentiary grounds.  Those objections, however, were not made in the trial court and thus were not preserved for review.  See Tex. R. App. P. 33.1.  After considering and weighing all of the evidence supporting and contradicting the jury’s finding, we hold that the evidence is also factually sufficient to support the jury’s finding of testamentary capacity.

III.    Bifurcation of proceedings

          Lena next challenges the trial court’s decision to bifurcate the proceedings, allowing the issue of Anna Lee’s testamentary capacity in executing the 1999 and 2004 wills to be tried first and leaving the claims concerning the 1983 and 1989 wills for later, if their adjudication proved necessary.  Texas Rule of Civil Procedure 174(b) confers broad discretion on trial courts in decisions to sever or bifurcate proceedings.  Ramsay v. Tex. Trading Co., 254 S.W.3d 620, 623 (Tex. App.—Texarkana 2008, pet. denied); see Tex. R. Civ. P. 174(b).  In reviewing the trial court’s bifurcation decision, therefore, we do not disturb it even if we would have decided the issue differently unless it is shown to be arbitrary and unreasonable.  See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). 

          Lena contends that the trial court abused its discretion in bifurcating the trial because section 83(a) of the Probate Code requires the trial court to hear multiple applications together.  See Tex. Prob. Code Ann. § 83(a) (Vernon 2003).  Section 83(a) sets forth the procedure pertaining to a second application for probate, stating that if a second application is filed before the first application is heard, the trial court “shall hear both applications together and determine what instrument, if any, should be admitted to probate .”  Id.  We do not read this provision as precluding the use of bifurcation where, as here, resolution of a discrete issue in the first part of the proceeding may obviate the need for extensive evidence and possible confusion concerning multiple applications.  See Ramsay, 254 S.W.3d at 624 (trial court’s bifurcation of proceeding to hear whether contract’s forum selection clause bound investor was reasonable procedure suggested by logical structure of case, allowing trial court to avoid full-blown trial on issues not subject to trial in Texas if clause was enforceable).  The trial court’s bifurcation kept the competing applications in the same proceeding and, at the same time, avoided presentation of potentially confusing or unnecessary issues.

          Lena complains that the bifurcation prevented her from presenting evidence of intertwined issues among the wills, including evidence of Anna Lee’s love and affection toward all of her children.  Love and affection for possible heirs, however, is not a consideration in determining testamentary capacity, the only issue before the jury in connection with the 2004 will.[1]  The trial court did not abuse its discretion by bifurcating the proceeding. 

IV.    Refusal to submit attorney’s fees question

Lena complains of the trial court’s refusal to submit the following question to the jury:

Do you find  . . . that LENA JO BARBER defended the [ 2004] will,  . . .the [1999] will . . ., or prosecuted the [1983] will  . . .or the [1989] will  . . ., admitted to probate, whether successful or not, in good faith and with just cause[?]

We review a trial court’s decision to submit or refuse a particular question under the abuse of discretion standard.[2]  Tex. Dep’t of Hum. Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); ASEP USA, Inc. v. Cole, 199 S.W.3d 369, 376 (Tex. App.—Houston [1st Dist.] 2006, no pet.). 

          A.      Waiver

          Before considering this charge issue on the merits, we first address Dorothea’s contention that Lena waived her attorney’s fees claim.  Texas follows a “fair notice” standard for pleading, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and the testimony that will be relevant. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000).  

Texas Rule of Civil Procedure 47 provides that a pleading “shall contain . . . a short statement of the cause of action sufficient to give fair notice of the claim involved . . . .”  Tex. R. Civ. P. 47.  “The purpose of this rule is to give the opposing party information sufficient to enable him to prepare a defense.”  Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982).  The test of fair notice is whether an opposing attorney of reasonable competence, on review of the pleadings, can ascertain the nature and the basic issues of the controversy and the testimony probably relevant.  Bowen v. Robinson, 227 S.W.3d 86, 91 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).  If, as here, the opposing party does not specially except to the challenged pleading in the trial court, we “construe the pleadings liberally in favor of the pleader.”  Horizon/CMS Healthcare Corp., 34 S.W.3d at 897; see Tex. R. Civ. P. 1 .

The relevant portion of Lena’s live pleading reads:

VII.   ATTORNEY’S FEES

27.     Contestant/Applicant is entitled to collect her reasonable and necessary attorneys’ fees and costs from Applicant/Defendant or from Decedent’s estate, in that the filing and prosecuting of this action by Contestant/Petitioner is of benefit to the estate.  Further, pursuant to Texas Civil Practice and Remedies Code § 37.009, Contestant/Applicant is further entitled to her costs and reasonable and necessary attorney’s fees as are equitable and just.

Lena’s proposed jury question tracks the language in section 243 of the Probate Code providing for payment out of the estate of attorney’s fees to a designated person who “defends [a will] or prosecutes any proceeding in good faith, and with just cause, for the purpose of having the will or alleged will admitted to probate, whether successful or not.”  Tex. Prob. Code Ann. § 243 (Vernon 2003).  According to Dorothea, Lena waived any claim to attorney’s fees under this section by (1) pleading for attorney’s fees under section 37.009 of the Civil Practice and Remedies Code, which limits her ability to recover fees to that provision alone, and (2) failing to specifically plead the good faith and just cause standard required by the statute or to expressly invoke section 243 as the basis for her attorney’s fees request. 

          The plain language of Lena’s pleadings, which states that section 37.009 of the Civil Practice and Remedies Code is not the sole but, rather, a “further” ground for her attorney’s fees claim, demonstrates that Dorothea’s first contention lacks merit.  Dorothea relies on Fletcher v. Harris, No. 14-05-00998-CV, 2007 WL 1152651 (Tex. App.—Houston [14th Dist.] Apr. 19, 2007, no pet.) (not designated for publication), and Kirby v. Brown, 383 S.W.2d 184 (Tex. Civ. App.—El Paso 1964, writ dism’d), to support her second contention that Lena was required either to specifically plead her entitlement based on “good faith and just cause” or to invoke section 243 by name, but we do not construe either Rule 47 or those cases as imposing such a stringent standard for pleading.  Neither Fletcher nor Kirby addressed the issue of section 243 fees as purely a sufficiency-of-pleading issue; rather, each court pointed out that the party seeking fees was not entitled to them under section 243 because he had neither pleaded nor proved good faith.  See Fletcher, 2007 WL 1152651, at *4; Kirby, 383 S.W.2d at 192.  These cases do not address the degree of specificity required to put an opposing party on fair notice of the fee claim under section 243. 

To determine whether Lena’s pleadings meet the fair notice standard, we ultimately must examine whether her claim for fees for pursuing an action “of benefit to the estate”—a term not found in section 243—sufficiently invokes the provision to put an opposing attorney of reasonable competence on notice of that theory of fee recovery.  Ample Texas authority indicates that it does.  Before adoption of the Probate Code, Texas did not have a statute “expressly providing for the allowance of attorney’s fees and other expenses incurred by an executor in probating or defending the will.”  Salmon v. Salmon, 295 S.W.2d 29, 31 (Tex. 1965).  In Salmon, the Texas Supreme Court explained that Texas common law provided for fee recovery in those circumstances, and that section 243, enacted in 1955, is “simply a legislative declaration of the law as previously announced by [Texas] courts.”  Id.; see Tex. Prob. Code Ann. § 243.

The Supreme Court went on to describe the circumstances under which an executor could recover fees:

Under the provisions of Section 243 and the decisions dealing with the same problem, a person named as executor in a will is deemed to be acting for the benefit of the estate when he, in good faith and with probable cause, employs attorneys to defend the will or prosecute an action to probate same.

Salmon, 295 S.W.2d at 31 (emphasis added).  The term “for the benefit of the estate” appears in tandem with section 243 requests for attorney’s fees in other cases as well.  See, e.g., Miller v. Anderson, 651 S.W.2d 726, 727–28 (Tex. 1983) (holding that executor was entitled to section 243 fees without independent findings of good faith and just cause because benefit to estate was established when will was admitted to probate; findings necessary only when will proponent is unsuccessful); Weatherly v. Martin, 754 S.W.2d 790, 794–95 (Tex. App.—Amarillo 1988, writ denied) (observing that threshold consideration for award of attorney’s fees under section 243 is determined by reasonable value of services rendered and necessarily incurred for benefit of estate).  Construing Lena’s pleadings liberally, we hold that her request for attorney’s fees “for filing and prosecuting” an action that is “of benefit to the estate” suffices to put an opposing attorney of reasonable competence on notice that she sought attorney’s fees under section 243 of the Probate Code.

          B.      Denial of jury question

We turn to consider whether the trial court erred in denying Lena’s jury question on good faith and just cause to support her section 243 request for attorney’s fees.  Section 243 identifies two groups of persons who may recoup from an estate attorney’s fees and costs incurred in the defense or prosecution of a will.  The first group consists of “any person designated as executor in a will or an alleged will, or as administrator with the will or alleged will annexed.”  Tex. Prob. Code Ann. § 243.  Section 243 provides that, on the required showing, persons in this group “shall be allowed out of the estate [their] necessary expenses and disbursements, including reasonable attorney’s fees.”  Id. 

          The second group consists of “any person designated as a devisee, legatee, or beneficiary in a will or an alleged will, or as administrator with the will or alleged will annexed.”  Id.  Persons in this group, section 243 provides, “may be allowed out of the estate” their reasonable attorney’s fees on a showing of good faith and just cause.  Tex. Prob. Code Ann. § 243.  In contrast to the use of “shall” for the first group, the use of “may” for this second group signals that the trial court retains the discretion to deny an attorney’s fees request from a person in that group notwithstanding a showing of good faith and just cause.  See In re Estate of Washington, 289 S.W.3d 362, 367–68 (Tex. App.—Texarkana 2009, pet. denied) (observing that devisee, legatee, or beneficiary may have interest in prosecuting or defending will, but, unlike executor, does not have legal duty to take action).

          Whether the trial court erred in denying Lena’s proposed jury question, therefore, depends on whether Lena qualifies for fees as a member of the first group or the second group described in section 243.  Lena’s live pleading explains that she brought the counter-application to probate the 1983 will or, alternatively, the 1989 will as “a daughter of the Deceased” and a person with “a pecuniary interest that will be affected by the probate or defeat of the will,” and, therefore, “as an ‘interested person’ as defined under Section 10 of the Texas Probate Code.”[3]  Both the 1983 and 1989 wills name Lena as a beneficiary, and the 1989 will also designates her as co-executor. 

Because Lena’s ultimate strategy seeks admission of the 1989 will, for which she is named a co-executor, she was entitled to have her good faith and just cause question submitted to the jury.  See Zapalac v. Cain, 39 S.W.3d 414, 419 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (affirming award of attorney’s fees under section 243 based on showing that litigation efforts involved in contest of 1996 will were part of ultimate trial strategy of admitting 1993 will to probate instead of 1996 will); see also Russell v. Moeling, 526 S.W.2d 533, 535–36 (Tex. 1975) (explaining that claim for attorney’s fees under section 243 must be brought in same proceeding with will application and cannot be asserted in subsequent suit).  We hold that the trial court erred in refusing to submit Lena’s question on good faith and just cause to support her claim for attorney’s fees.

V.      Summary judgment on remaining claims against estate

Because legally and factually sufficient evidence supports the jury finding that Anna Lee had testamentary capacity to execute the 2004 will, Lena, who is neither an executor nor a beneficiary of the 2004 will, lacks standing to bring claims on behalf of the estate.  See Tex. Prob. Code Ann. § 3(r) (Vernon Supp. 2009) (defining  “interested persons” or “persons interested” as “heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered”).  Her lack of standing independently requires dismissal of her claims for breach of fiduciary duty, constructive trust, and resulting trust.  We therefore need not review her challenges to the trial court’s summary judgment on those claims.  See Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 921 (Tex. 2005) (“[A] trial court’s erroneous decision to grant summary judgment can be rendered harmless by subsequent events in the trial court.”).

CONCLUSION

          The trial court properly granted summary judgment on the lack of due formality and undue influence claims.  Because legally and factually sufficient evidence supports the jury’s verdict, the trial court also properly entered judgment on that verdict.  Further, the trial court did not abuse its discretion in bifurcating the proceeding.  The trial court erred, however, in refusing to submit to the jury Lena’s proposed question on good faith and just cause.  We therefore reverse the judgment to the extent it denies Lena’s request for attorney’s fees and remand the case for trial on the issues of good faith and just cause for advancing the 1983 and 1989 wills. We affirm the remainder of the trial court’s judgment.

                                                          Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale.

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[1]  Also, in her 2004 will, Anna Lee recited that she loved her children very much.

[2]  Dorothea contends that Lena waived this issue by failing to obtain a ruling.  The test for preservation is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.  State Dep’t of Hwys. & Public Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992); see Zapalac v. Cain, 39 S.W.3d 414, 417 (Tex. App.—Houston [1st Dist.] 2001, no pet.).  The clerk’s record contains the proposed submission and the reporter’s record documents the court’s ruling on it.  Thus, the issue is preserved for our review.

[3]  “Under Texas law, a party who seeks only to contest a will may not obtain statutory reimbursement for attorney's fees under Section 243.”  Zapalac, 39 S.W.3d at 419 (emphasis in original).