Charlotte Washburn Omohundro v. Amelinda Crispina Ramirez-Justus, Individually and as Trustee of the Miriam N. Washburn Revocable Living Trust

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

CHARLOTTE WASHBURN '
OMOHUNDRO, No. 08-11-00113-CV
'
Appellant, Appeal from the
'
v. 43rd District Court
'
AMELINDA CRISPINA of Parker County, Texas
'
RAMIREZ-JUSTUS, INDIVIDUALLY
AND AS TRUSTEE OF THE MIRIAM N. ' (TC#CV-10-0747)
WASHBURN REVOCABLE LIVING
TRUST,

Appellee.

OPINION

Appellant, Charlotte Washburn Omohundro (Omohundro), appeals the trial court’s

summary judgment in favor of Appellee, Amelinda Crispina Ramirez-Justus (Amelinda),

individually, and as Trustee of the Miriam N. Washburn Revocable Living Trust. We affirm.

BACKGROUND

In 1976, Miriam N. Washburn, as Trustor, executed a revocable trust agreement (the trust),

to which she added provisions establishing the trustee’s powers by amendment in 1978.

On November 8, 2001, Washburn executed both a pour-over will and amendment to her

1976 trust. In the pour-over will, Washburn directed that in the event of her death, her personal

and household effects and residual estate, after the payment of debts, taxes, and administration

expenses, were to be transferred to her trust, of which she was trustee, and designated Amelinda

Ramirez to serve as independent executor of her estate and Ricardo Ramirez to serve as the

successor executor if Amelinda predeceased Washburn. Washburn’s six-page pour-over will
also specifies that if, for any reason, the trust is not in existence at the time of her death or if a court

of competent jurisdiction declares the testamentary disposition to the trustee to be invalid,

Washburn gives all of her estate, including the residue and remainder thereof, to the person who

should have been the trustee under the trust, as trustee and to applicable trustee substitutes and

successors, and incorporated the trust by reference into the pour-over will. Washburn included an

in terrorem provision to the will explaining that she had intentionally omitted persons and entities

not named therein, and providing that to any person or entity who challenges any term or condition

of the will, the sum of $1 only shall be bequeathed in lieu of any other benefit, grant, bequest, or

interest which that person may have in Washburn’s estate or the trust and its estate.

In the 2001 amendment to her trust, Washburn designated Amelinda to serve as successor

trustee of the trust upon Washburn’s death. Under the terms of the trust, after giving effect to

Washburn’s “special directives” which included specific bequests of money and personal property

to Omohundro and other individuals, the net income and principal of the trust estate would be

distributed to Amelinda in a fractional share of 80 percent with the remaining 20 percent

distributed to Ricardo Ramirez.

PROCEDURAL HISTORY

Washburn died on December 5, 2005.1 On January 12, 2006, the County Court of Parker

County probated Washburn’s will and ordered that letters testamentary issue to Amelinda as

independent executor of Washburn’s will and estate. On December 18, 2009, Omohundro filed a

petition entitled, “Original Petition to Set Aside 2001 Amended Trust, For Declaratory Judgment

and For Other Relief,” against Amelinda, individually and as trustee of the trust in the Probate

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In her response to the summary-judgment motion, Omohundro asserts without dispute that Washburn died on
December 5, 2005, that Amelinda is Washburn’s granddaughter, and that Ramirez is Washburn’s former son-in-law
who had divorced Washburn’s daughter, Eva Maria Dimmitt.
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Court of Tarrant County. The Tarrant County Probate Court granted Amelinda’s motion to

transfer venue and ordered the cause transferred to the 43rd District Court of Parker County,

Texas.

In her petition, Omohundro stated that she was seeking a finding from the court that the

2001 Amendment to Washburn’s trust was invalid ab initio, as well as findings of lack of mental

capacity, undue influence, fraud, breach of fiduciary duties, and tortious interference with

inheritance. Omohundro also requested that the trial court grant declaratory relief, restore the

1976 trust, and grant Omohundro attorney’s fees against Amelinda, individually, or alternatively

against the trust.

Amelinda filed an answer generally denying Omohundro’s allegations, and made a special

exception to the petition noting that Omohundro lacks standing to pursue the alleged claims

because she is neither a beneficiary of Washburn’s estate or of any trust identified in her pleadings

nor an interested person with respect to Washburn’s estate. Amelinda also affirmatively pleaded

the defense of statute of limitations to each and every cause of action raised in Omohundro’s

petition.

Concurrently with her answer, Amelinda filed a motion for summary judgment. In her

motion, Amelinda asserted that because Washburn’s will had been admitted to probate,

Washburn’s entire estate had been disposed in accordance with the terms and conditions of the

2001 trust, and reasoned that Omohundro’s arguments were irrelevant because Washburn’s will

contained a provision which provided that if the trust was either not in existence or was declared

by a court of competent jurisdiction to be invalid, then all of Washburn’s estate would be given to

the person who would have been the trustee under the trust, which Washburn incorporated by

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reference into her will for that purpose. Amelinda next challenged Omohundro’s standing to

assert her claims, arguing that Omohundro is not a beneficiary of the 1976 trust or its 1978

amendment and failed to establish in her petition the means by which she would be entitled to

receive any portion of Washburn’s estate. Finally, Amelinda contended that Omohundro was

attempting to pursue an indirect and impermissible contest of Washburn’s pour-over will, which is

time-barred by Section 93 of the Texas Probate Code because Omohundro filed her action on

December 18, 2009, more than two years after Washburn’s will was admitted to probate. TEX.

PROB. CODE ANN. § 93 (West 2003).

In her response to Amelinda’s summary-judgment motion, Omohundro challenged the

motion as being an improper vehicle for asserting a plea to the jurisdiction upon the basis of

standing, asserted that the motion did not contain a pleading for affirmative relief upon the basis of

any statute of limitations regarding the 2001 trust and that the trial court could not, therefore, grant

relief thereon in relation to Omohundro’s claims. Omohundro also objected to the motion upon

the alleged bases that it: (1) did not plead for the court to construe the will but asked that the court

conclude, as a matter of law, that the will effectively disposed of the entirety of Washburn’s estate;

(2) did not specify the relief being sought; (3) is premature because it attempts to determine what

will happen to the estate before property is in the estate; and (4) fails to show that no fact issues

exist. In support of her opposition to the motion, Omohundro presented selected portions of

deposition excerpts of the testimony of Amelinda and Glen Wood, who prepared the 2001 trust

amendment. Omohundro argued that because she was bequeathed certain sums and personal

property under Washburn’s special directives of the trust, she is a beneficiary and interested person

having standing to bring suit. Lastly, Omohundro asserted that it is the 2001 trust amendment that

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controls the ultimate distribution of Washburn’s assets and that the will should be construed only if

the trust is determined to be invalid.

After considering the evidence and arguments presented by counsel, the district court

entered a take-nothing final summary judgment in favor of Amelinda. Omohundro filed a motion

to reconsider or for new trial and, after again hearing the evidence and arguments, the district court

denied the motion.

DISCUSSION

Briefing

We first address the inadequacy of Appellant’s brief. The required contents and

organization for an appellant’s brief is controlled by the Texas Rules of Appellant Procedure. See

TEX. R. APP. P. 38.1; Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.–El Paso 2007, no pet.).

Rule 38.1(d) of the Rules of Appellate Procedure directs that the statement of the case in a

litigant’s brief should be supported by record references and Rule 38.1(i) mandates that the brief

contain a clear and concise argument for the contention made with appropriate citation to

authorities and to the record to maintain the point at issue. TEX. R. APP. P. 38.1(d), (i). See

Slagle v. Prickett, 345 S.W.3d 693, 700 (Tex.App.–El Paso 2011, no pet.); Valadez, 238 S.W.3d at

845; see Walder v. State, 85 S.W.3d 824, 827 (Tex.App.–Waco 2002, no pet.) (“counsel should

identify the evidence or other matters in the record (e.g., pleadings, arguments, or objections)

pertinent to the issue or point ‘with appropriate citations . . . to the record[.]’”).

A party asserting error on appeal bears the burden of showing that the record supports the

contention raised and of specifying the place in the record where matters upon which it relies or of

which it complains are shown. Sisters of Charity of Incarnate Word, Houston, Tex. v. Gobert,

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992 S.W.2d 25, 31 (Tex.App.–Houston [1st Dist.] 1997, no pet.). When appellate issues are

unsupported by argument or lack citation to the record or legal authority, nothing is presented for

review. Republic Underwriters Ins. Co. v. Mex–Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004);

Valadez, 238 S.W.3d at 844–45; Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex.App.–El

Paso 2007, pet. struck); Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex.App.–Amarillo 2003, pet.

denied); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.App.–Houston [14th Dist.] 2002, no pet.).

Importantly, citing to the brief’s appendix is not a substitute for citing to the record.

Jackson v. Citibank (South Dakota), N.A., 345 S.W.3d 214, 214 (Tex.App.–Dallas 2011, no pet.).

We are not required to sift through the record in search of facts supporting a party’s position. TEX.

R. APP. P. 38.1(f), (h); Lawton v. State, 913 S.W.2d 542, 554 (Tex.Crim.App. 1995) (when a party

does not refer the appellate court to the precise pages in the record where the error allegedly

occurred, the appellate court may properly overrule the issue as inadequately briefed); Alvarado v.

State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995) (it is not an appellate court’s task to review the

record in an attempt to verify appellant’s claims); Nawas v. R & S Vending, 920 S.W.2d 734, 737

(Tex.App.–Houston [1st Dist.] 1996, no writ) (an appellate brief must include a fair, condensed

statement of facts pertinent to the points of error raised with references to pages in record where

facts may be found, and appellate court is not required to search record without guidance to

determine whether assertions regarding facts of case are valid). As we noted in Valadez:

It is the Appellant=s burden to discuss her assertions of error. An appellate court
has no duty B or even right B to perform an independent review of the record and
applicable law to determine whether there was error. Were we to do so, even on
behalf of a pro se appellant, we would be abandoning our role as neutral
adjudicators and become an advocate for that party.

Valadez, 238 S.W.3d at 845 (citations omitted).

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 Although providing citation to legal authority, Appellant’s brief contains no citation to the

clerk’s record, instead citing only to those documents comprising its appendix, and contains a

handful of citations to the reporter’s record. However, because this case was transferred from our

sister court in Fort Worth, which has not opined upon the consequences of a litigant’s citation to a

brief’s appendix rather than the clerk’s record, and because of the relatively small size of the

clerk’s record in the instant case, we decide with great reservation that we will consider

Appellant’s issues in the interest of justice.2 Our decision in this case does not overrule settled

law holding that error may be waived by inadequate briefing. Republic Underwriters, 150

S.W.3d at 427; Valadez, 238 S.W.3d at 844–45; Martinez, 218 S.W.3d at 844; Plummer, 93

S.W.3d at 931; Nguyen, 93 S.W.3d at 188.

Standard of Review

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

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When moving for summary

judgment, the movant bears the burden of showing that no genuine issues of material fact exist and

that he is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop.

Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether there are disputed issues

of material fact, we take as true all evidence favorable to the nonmovant and indulge every

reasonable inference in the nonmovant’s favor. Nixon, 690 S.W.2d at 548–49. When the

defendant moves for summary judgment, he 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 to be entitled to summary judgment as a matter of law. Sci. Spectrum, Inc. v.

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TEX. R. APP. P. 41.3.

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Martinez, 941 S.W.2d 910, 911 (Tex. 1997). The burden then shifts to the plaintiff to produce

competent controverting summary judgment evidence that raises a genuine issue of material fact.

Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If no genuine issue of material

fact exists, summary judgment, therefore, should be granted as a matter of law. Haase v. Glazner,

62 S.W.3d 795, 797 (Tex. 2001).

However, where the district court does not state the basis for granting summary judgment,

the appealing party must negate all grounds that support the judgment. See Star-Telegram, Inc. v.

Doe, 915 S.W.2d 471, 473 (Tex. 1995); State Farm Fire & Cas. Co. v. S.S. & G.W., 858 S.W.2d

374, 381 (Tex. 1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). If the appealing party

fails to negate each ground, we must uphold the trial court’s summary judgment if any of the

theories advanced are meritorious. See Carr, 776 S.W.2d at 569; Cunningham v. Zurich

American Ins. Co., 352 S.W.3d 519, 524 (Tex.App.–Fort Worth 2011, pet. denied); Hanson v.

Greystar Development & Const., LP, 317 S.W.3d 850, 855 (Tex.App.–Fort Worth 2010, pet.

denied).

Analysis

Omohundro raises five issues on appeal. The trial court did not state the basis for granting

summary judgment in favor of Amelinda. However, having reviewed the record, we determine

that Omohundro’s suit is time-barred. Subject to exceptions that have not been shown to be

applicable under the facts of this case, Section 93 of the Probate Code provides that an interested

party may institute suit in the proper court to contest the validity of a will if the suit is brought

within two years after the will has been admitted to probate. TEX. PROB. CODE ANN. § 93.

As raised by Amelinda in her motion for summary judgment, Omohundro did not file suit until

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December 18, 2009, more than two years after Washburn’s will was probated on January 12, 2006.

Because Omohundro has failed to negate each ground supporting the summary judgment,

including Amelinda’s assertion that Omohundro’s suit is untimely, and because the

statute-of-limitations ground is meritorious, we must uphold the trial court’s summary judgment.

TEX. PROB. CODE ANN. § 93; see Carr, 776 S.W.2d at 569; Cunningham, 352 S.W.3d at 524;

Hanson, 317 S.W.3d at 855. Having determined that Omohundro’s suit is time-barred, we need

not address Omohundro’s issues.

CONCLUSION

The trial court’s judgment is affirmed.

GUADALUPE RIVERA, Justice
November 30, 2012

Before McClure, C.J., Rivera, J., and Antcliff, J.

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