IN THE
TENTH COURT OF APPEALS
No. 10-14-00010-CV
WILLIE O. FLENTGE, JR. AND
CHARLES RAY FLENTGE,
Appellants
v.
DANIEL W. JUNEK, INDEPENDENT EXECUTOR
OF THE ESTATE OF WILLIE O. FLENTGE, SR.,
Appellees
From the 21st District Court
Burleson County, Texas
Trial Court No. 27,040
CONCURRING OPINION
The pleadings and the briefing filed by the parties in this proceeding make a
logical and internally consistent opinion virtually impossible. My colleagues have,
nevertheless, addressed and resolved the issues raised and the responses thereto. In
this concurring opinion I will endeavor to cut to the chase so that subsequent readers of
the memorandum opinion understand its precedential limitations to the facts and legal
arguments presented by the parties and not as an endorsement of the pleadings or the
procedures used in this proceeding to obtain a result.
STANDING
There is little doubt that brothers Willie and Charles have standing to contest the
validity of Father’s will. If the 2008 will was determined to be invalid, the 1979 will
would be considered for probate. It is alleged that the provisions of the 1979 will
provided that Willie and Charles would be beneficiaries thereof. As such, it is beyond
dispute they are persons-interested-in-the-estate of Father within the meaning of the
Estates Code.
But the real standing issue is whether they have standing in this proceeding to
compel the independent executor of Father’s estate to tender the shares in Ranch to the
corporation under the stock transfer clause in Ranch’s by-laws. This issue should not be
before this Court at this time. First, that issue has been ruled on in another suit, which
is apparently still pending, regarding corporate governance of Ranch. For Willie and
Charles to have standing to bring that issue before any court, they, as shareholders of
Ranch, would have to show the corporation had a right that it had failed to exercise on
behalf of its owners, in essence a shareholders’ derivative suit. That is not what this suit
is. This is a will contest. It is the shareholders’ derivative action attempted to be
maintained in this will contest suit that Willie and Charles do not have standing to
bring based on the evidence presented in the summary judgment proceeding; but that is
a non-issue in this will contest suit.
UNDUE INFLUENCE, FRAUD AND LACK OF TESTAMENTARY CAPACITY
Notwithstanding this is a will contest, Willie and Charles presented no evidence
Flentge v. Junek Page 2
to show that Father’s will was the result of undue influence (fraud or coercion) or that
Father lacked mental capacity at the time the will was executed. Because the will had
already been admitted to probate, the burden was on Willie and Charles to establish the
elements of a proper will contest and they wholly failed to do that in response to the
Independent Executor’s no-evidence motion for summary judgment. Having failed to
present sufficient evidence of even a prima facie claim regarding the invalidity of
Father’s will, the trial court correctly granted the no-evidence motion for summary
judgment.
ACTIONS OF THE INDEPENDENT EXECUTOR
The actions of the Independent Executor of Father’s will regarding the failure to
tender Ranch stock to the corporation is a convoluted problem for Willie and Charles. If
they had been successful in challenging the validity of Father’s will, the defrocked
Independent Executor would have to account for his actions in the method of the
disposition of Ranch stock. Alternatively, whether or not the challenge to Father’s will
is successful, as discussed above, they have no standing in this will contest suit to
challenge the actions of the duly appointed independent executor as it relates to the
tender of shares of Ranch pursuant to the stock transfer restriction. 1 But this gets really
twisted when you consider that now Mother, the sole beneficiary of Father’s will has
also passed. But whatever is going on in Mother’s estate has, apparently, not found its
1Having lost the will contest, and because they are not beneficiaries of Father’s will, Willie and Charles
are not in a position to compel an accounting of the actions of the independent executor or a distribution
of Father’s estate.
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way into complicating what the independent executor is doing in Father’s estate.
SUMMARY
Thus, notwithstanding that the bulk of the briefs in this appeal related to the
interpretation of a stock transfer restriction in the corporate bylaws of Ranch, that
interpretation is not properly before this Court and is therefore not an issue upon which
the Court is rendering an opinion or judgment.
CONCLUSION
With these comments, I respectfully concur in the judgment affirming the trial
court’s order that denies Willie and Charles’s will contest and denies any other
requested relief.2
TOM GRAY
Chief Justice
Concurring opinion issued and filed November 13, 2014
2 Actually, the trial court erred when he found that because they failed to present any evidence of fraud,
undue influence, or lack of testamentary capacity, Willie and Charles lacked standing and therefore
dismissed Willie and Charles’s will contest. In its fundamental result, this disposition is essentially the
same as entry of a take nothing judgment on their will contest claim which would have been the
technically correct form of judgment. Given the confusion created by the parties and the failure to cleanly
present and argue the issues, I cannot fault the trial court for this oversight; and the parties do not argue
that dismissal of the claim was harmful error when a take nothing would have been the correct judgment.
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