ACCEPTED
14-14-00291-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
1/16/2015 12:02:47 PM
CHRISTOPHER PRINE
CLERK
No. 14-14-00291-CV
IN THE FOURTEENTH COURT OF APPEALS FOR FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS HOUSTON, TEXAS
1/16/2015 12:02:47 PM
CHRISTOPHER A. PRINE
Iona Grant, Lauretta Moss and Nannie Johnson, Clerk
Appellants,
v.
Effie Collins,
Appellee.
On Appeal from the Probate Court No. 2 of Harris County, Texas
Trial Court Case No. 415,772
BRIEF FOR APPELLEE
Michael Scott Thomas
State Bar No. 19861200
Thomas & Williams, L.L.P.
2626 S. Loop West, Suite 561
Houston, Texas 77054
(713) 665-8558
(713) 665-8562-Facsimile
mstlawyer@aol.com
ATTORNEYS FOR APPELLEE
IDENTITY OF PARTIES AND COUNSEL
APPELLANTS: Iona Grant, Lauretta Moss, and Nannie Johnson
COUNSEL: Derek H. Deyon
State Bar No. 24075862
THE DEYON LAW GROUP, P.L.L.C.
2211 Norfolk, Suite 600
Houston, Texas 77098
Telephone: (713) 418-7420
Facsimile: (713) 714-8670
APPELLEE: Effie Collins
COUNSEL: Michael Scott Thomas
State Bar No. 19861200
THOMAS & WILLIAMS, L.L.P.
2626 S. Loop West, Suite 561
Houston, Texas 77054
Telephone: (713) 665-8558
Facsimile: (713) 665-8562
JUDGE: The Honorable Mike Woods
Probate Court No. 2, Harris County, Texas
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TABLE OF CONTENTS
Identity of Parties and Counsel ...................................................................................i
Table of Contents ...................................................................................................... ii
Index of Authorities ................................................................................................. iii
Issues Presented ......................................................................................................... 1
Statement of the Case................................................................................................. 1-2
Statement of Facts ...................................................................................................... 2
Summary of Argument .............................................................................................. 2
Argument.................................................................................................................... 3
I. There is no Genuine Issue of Material Fact That Decedent Lacked
Testamentary Capacity on March 18, 2005. .................................................... 3
A. Standard of Review. .............................................................................. 3
B. Burden of Proof in Will Contest. .......................................................... 3-4
C. Appellant’s did not Present Competent Summary Judgment
Proof to Raise a Fact Isue on Testamentary Capacity. ......................... 4
1. Testamentary Capacity................................................................ 4
2. Negating Testamentary Capacity. ............................................... 4-5
3. The Trial Court Properly Sustained Appellee’s
Objections to Appellant’s Summary Judgment Evidence
From Disinterested Witnessess ................................................... 5-6
4. The Trial Court Properly Sustaind Appellee’s Objections
to Appellant’s Summary Judgment Evidence From
Interested Witnesses.................................................................... 6-8
Conclusion and Prayer ............................................................................................... 8
Certificate of Compliance .......................................................................................... 9
Certificate of Service ................................................................................................. 9
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INDEX OF AUTHORITIES
Carr v. Radkey, 393 S.W.2d 806 (Tex. 1965) ..........................................................6
Casso v. Brand, 776 S.W.2d 551 (Tex. 1989) ..........................................................7
Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983) .................................................3
Dagley v. Haag Engineering Co., 18 S.W.3d 787 (Tex.App.--Houston [14th
Dist.] 2000, no pet.) .........................................................................................3
Evans v. Allen, 358 S.W.2d 358 (Tex.App.--Houston [1st Dist.] 2011, no
pet.) .................................................................................................................4
In re Price's Estate, 375 S.W.2d 900 (Tex. 1964) .....................................................3
Lee. v. Lee, 424 S.W.2d 609 (Tex. 1968) ..................................................................5
McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. 2003) ...................................................6
Lyons v. Lindsey Morden Claims Mgm't., 985 S.W.2d 865 (Tex. App.--El
Paso 1998, no pet.)...........................................................................................8
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217 (Tex. 1999) ......................................3
STATUTES AND RULES
Rules
Tex. R. App. P. 166a(c) .............................................................................................7
Statutes
Tex. Estates Code § 256.152(a)(2)(A) .......................................................................3
Tex. Estates Code § 256.152(a)(2)(B) .......................................................................3
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ISSUES PRESENTED
1. Whether there is no genuine issue of material fact that the Decedent lacked
testamentary capacity on March 18, 2005.
STATEMENT OF THE CASE
On August 27, 2012, Appellee filed an application for probate of will as a
muniment of title for Ruth Bailey, Decedent, seeking to probate a will dated March
23, 2004 (“Application 1”)(CR 6-18). On October 9, 2012, Appellants filed a will
contest to Application 1, asserting a general denial (CR 21-23). On September 28,
2012, Appellant Iona Grant filed an application to probate will and for issuance of
letters testamentary for Ruth Bailey, Decedent, seeking to probate a will dated
March 18, 2005, in Cause No. 416,559, In The Estate of Ruth Bailey, Deceased,
Probate Court No. 4, Harris County, Texas (“Application 2”)(CR 28-30). On
October 31, 2012, the cases were consolidated (CR 27).
On September 30, 2013, Appellee filed a will contest to Application 2,
asserting lack of testamentary intent, testamentary capacity and undue influence
(CR 48-50). On October 2, 2013, Appellee filed a traditional motion for partial
summary judgment (CR 51-60). On October 27, 2013, Appellants filed their
response to traditional motion for partial summary judgment (CR 62-79). On
November 1, 2013, Appellee filed her reply, asserting objections to the Affidavits
of Dorothy Scott, Brenda Addison, Iona Grant and Loretta Moss (CR 80-90).
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On November 5, 2013, the trial court signed an Order granting partial
summary judgment, in favor of Appellee (CR 91). On April 14, 2014, Appellants
filed their notice of appeal. (CR 167-168).
STATEMENT OF FACTS
On November 5, 2013, a hearing was held on Appellee’s traditional motion
for partial summary judgment (1 RR 1). Appellee objected to the affidavits of
Dorothy Scott and Brenda Addison ( 1 RR 6-7). Appellee also objected to the
affidavits of Iona Grant and Lauretta Moss, interested witnesses (1 RR 7-8).The
trial court sustained Appellee’s objections to the affidavits and granted the motion
for partial summary judgment (1 RR 16-17).
SUMMARY OF ARGUMENT
Appellant put forth proper summary judgment evidence that Ruth Bailey,
Decedent, lacked the requisite testamentary capacity for a valid will on March 18,
2005. Additionally, the trial court sustained a proper objection to the affidavits of
Dorothy Scott, Brenda Addison, Iona Grant and Lauretta Moss, as such affidavits
were conclusory, and not based on facts that would create a fact issue on
testamentary capacity.
Based on the foregoing, Appellee requests that the judgment of the trial
court be affirmed.
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ARGUMENT
I. There is no genuine issue of material fact that the Decedent lacked
testamentary capacity on March 18, 2005.
A. Standard of Review.
To prevail on a motion for summary judgment, the movant must establish
that no material fact issue exists and it is entitled to judgment as a matter of law.
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999). Once the movant
establishes that no genuine issue of material fact exists regarding an element of the
non-movant’s claim, the non-movant must present competent summary judgment
evidence raising a fact issue on that element. Dagley v. Haag Engineering Co., 18
S.W.3d 787, 789 (Tex.App.—Houston [14th Dist.] 2000, no. pet.).
B. Burden of Proof in Will Contest.
If a will contest is filed before the will is admitted to probate, the proponent
of the will has the burden of proof on the issues of formalities of execution. TEX.
ESTATES C. § 256.152(a)(2)(A). If the issue of testamentary capacity is raised
before the will is offered for probate, the proponent of the will has the burden of
establishing that the Testator was of sound mind. TEX. ESTATES C. §
256.152(a)(2)(B); Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex. 1983). There is
no presumption that a person is of sound mind at the time she executes the will. In
re Price’s Estate, 375 S.W.2d 900, 903 (Tex. 1964). Accordingly, Appellants bear
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the burden of proving that the Decedent had testamentary capacity on March 18,
2005.
C. Appellant’s did not Present Competent Summary Judgment
Proof to Raise a Fact Issue on Testamentary Capacity.
1. Testamentary Capacity.
A testator has “testamentary capacity” if she has sufficient mental ability, at
the time the will is executed, to understand the business in which the testator is
engaged; the effect of her act in making the will; the general nature and extent of
her property; she must know her next of kin and the natural objects of her bounty,
and have sufficient memory to collect in her mind the elements of the business to
be transacted, to hold those elements long enough t perceive their obvious relation
to each other, and to form a reasonable judgment about them. Evans v. Allen, 358
S.W.2d 358, 362 (Tex.App.–Houston [1st Dist.] 2011, no pet.).
2. Negating Testamentary Capacity.
Appellee would show that on August 3, 2004, Dr. Shayna P. Lee rendered a
capacity assessment in Cause No. 345,822, In the Guardianship of Ruth Homer
Bailey, an Incapacitated Person, In the Probate Court No. 4, Harris County, Texas
(the “Guardianship Proceeding”)(CR 56-58). The capacity assessment reflects that
the nature of the impairment is most likely due to the dementia process, that the
degree of the incapacity is severe and that the dementia process is not expected to
improve, and will worsen over time. Additionally, that due to her mental health
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that is consistent with dementia, she is completely unable to communicate any
responsible decisions. Id.
The proper inquiry in deciding testamentary incapacity is the condition of
the testator’s mind on the day the will was executed. Lee v. Lee, 424 S.W.2d 609,
611 (Tex. 1968). However, evidence of incompetency at other times has probative
force only if it demonstrates that the condition persists and has some probability of
being the same condition which obtained at the time of the making of the will. Id.
The evidence as outlined in Dr. Lee’s capacity assessment establishes that prior to
the execution of the Will dated March 18, 2005, the Decedent had an impairment
based on dementia, that it was severe, that it would not improve and would worsen
over time.
3. The Trial Court Properly Sustained Appellee’s Objections to
Appellant’s Summary Judgment Evidence from Disinterested
Witnesses.
Appellant’s summary judgment proof included the Affidavit of Dorothy
Scott, a purported disinterested witness. Specifically, Ms. Scott’s Affidavit states:
• “[M]rs. Bailey knew where she was and that she was there to
sign (Execute) her Will ...”
• “[M]rs. Bailey recognized my voice and my husband’s voice and knew we
were there to be witnesses to her sign (Execute) her Will.”
• “... she appeared fine to me in my opinion on this day at that time on
March 18, 2005 when she signed (Executed) her Will in my presence.”
(CR 71-72).
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Appellant’s summary judgment proof also includes the Affidavit of Brenda
Addison, a purported disinterested witness. Specifically, Ms. Addison’s Affidavit
states:
• “[M]rs. Bailey seemed fine in my opinion at that time on March 18, 2005
when she signed (Executed) her Will. I had no reason to believe she was not
mental capable to signing (Executing) her Will or that she did not know
what she was doing.”
(CR 77-78).
Conclusory statements that are not supported by facts are not proper
summary judgment proof. McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex.
2003). A lay witness may not be asked whether a testator had testamentary
capacity, but he may testify that a person is of sound mind if a proper predicate is
laid. Carr v. Radkey, 393 S.W.2d 806, 813 (Tex. 1965). A witness may be asked
whether the testator knew the objects of his bounty, the nature of the transaction in
which he was engaged, the nature and extent of his estate, and similar questions.
Id. Appellee properly objected to and moved to strike the affidavit testimony of
Dorothy Scott and Brenda Addison (CR 80-90; 1 RR 6-7). The trial court sustained
Appellee’s objections (1 RR 16-17).
4. The Trial Court Properly Sustained Appellee’s Objections to
Appellant’s Summary Judgment Evidence from Interested Witnesses.
Appellant’s summary judgment proof includes the Affidavit of Appellant
Iona Grant, an interested witness. Specifically, Ms. Grant’s Affidavit states:
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• “[M]y mother knew she was there to sign (Execute) her Will ...”
• “[M]y mother knew what she wanted and how to distribute her property.”
• “Mother was fine in my opinion to know her wishes and what to do with
her property on March 18, 2005 when she signed (Executed) her Will in our
presence.”
(CR 73-74).
Appellant’s summary judgment proof includes the Affidavit of Appellant
Lauretta Moss, an interested witness. Specifically, Ms. Moss’ Affidavit states:
• “[M]y mother knew she was there to sign (Execute) her Will ...”
• “[M]other knew what she wanted and how to distribute her property.”
• “Mother was fine in my opinion to know her wishes and what to do with
her property on March 18, 2005 when she signed (Executed) her Will in our
presence.”
(CR 75-76).
To establish facts through an interested witness, the testimony must be clear,
positive, direct, credible, free from contradiction, and uncontroverted even though
it could have been readily controverted. TEX. R. CIV. P. 166a(c); Casso v. Brand,
776 S.W.2d 551, 558 (Tex. 1989). The affidavits of Iona Grant and Lauretta Moss
contain conclusory statements, not facts. The affidavits of Iona Grant and Lauretta
Moss contain declarations that are not easily controverted.
Additionally, the Affidavit of Lauretta Moss contradicts sworn statements
she made in the Guardianship Proceeding (CR 85-89). When a party’s pleadings
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contain statements admitting facts or conclusions that directly contradict the
party’s own theory of recovery or defense, the pleadings may constitute summary
judgment proof for the other party. Lyons v. Lindsey Morden Claims
Management, 985 S.W.2d 86, 92 (Tex.App.–El Paso 1998, no pet.). Appellee
properly objected to and moved to strike the affidavit testimony of Iona Grant and
Lauretta Moss (CR 80-90; 1 RR 7-8). The trial court sustained Appellee’s
objections (1 RR 16-17).
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Effie Collins, Appellee,
respectfully requests this Court to affirm the judgment of the trial court, and for
such other and further relief to which Appellee may show herself justly entitled.
Respectfully submitted,
/s/ Michael Scott Thomas
MICHAEL SCOTT THOMAS
State Bar No. 19861200
THOMAS & WILLIAMS, L.L.P.
2626 S. Loop West, Suite 561
Houston, Texas 77054
(713) 665-8558
(713) 665-8562-Facsimile
mstlawyer@aol.com
ATTORNEYS FOR APPELLEE
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CERTIFICATE OF COMPLIANCE
I certify that pursuant to Tex.R.App. P. 9.4(i)(3), this document contains
2,224 words.
/s/ Michael Scott Thomas
MICHAEL SCOTT THOMAS
CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellee’s Brief was served via
email at ddeyon@deyonlawgroup.com to Mr. Derek H. Deyon, THE DEYON
LAW GROUP, P.L.L.C. 2211 Norfolk, Suite 600, Houston, Texas 77098 16th day
of January, 2015.
/s/ Michael Scott Thomas
MICHAEL SCOTT THOMAS
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in the Estate of Ruth Bailey
Combined Opinion