ACCEPTED
13-14-00667-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
5/1/2015 3:15:39 PM
DORIAN RAMIREZ
CLERK
No. 13-14-00667-CV
Court of Appeals, Thirteenth District FILED IN
13th COURT OF APPEALS
Corpus Christi – Edinburg, Texas
CORPUS CHRISTI/EDINBURG, TEXAS
5/1/2015 3:15:39 PM
DORIAN E. RAMIREZ
Clerk
In the Estate of
Mildred Ozella Favor Pursley,
a.k.a. Mildred F. Pursley, Deceased
Appeal from the Probate Court
Hidalgo County, Texas
Cause No. P-34,801-A
REPLY BRIEF OF APPELLANT
J. Joseph Vale
State Bar No. 24084003
jvale@atlashall.com
Charles C. Murray
State Bar No. 14719700
ccmurray@atlashall.com
ATLAS, HALL & RODRIGUEZ, LLP
818 Pecan/P.O. Box 3725
McAllen, Texas 78501
(956) 682-5501 (phone)
(956) 686-6109 (facsimile)
Attorneys for Rocky Joe Pursley
May 1, 2015 Oral Argument Requested
Table of Contents
Index of Authorities ...................................................................................................3
Summary of the Reply ...............................................................................................6
Argument....................................................................................................................8
I. Assuming for purposes of argument that the 1975 Will is
contractual, the 2007 Will and 2010 Codicil do not breach that
contract as a matter of law.....................................................................8
A. Introduction. ................................................................................ 8
B. Harold, Jr., and Rolland’s pretermission argument. ................... 9
C. The phrase “any child or children” means what it says. ........... 11
D. Conclusion. ...............................................................................14
II. The Court must determine whether the 1975 Will is ambiguous. ......15
III. Conclusion ...........................................................................................17
Prayer .......................................................................................................................18
Certificate of Rule 9.4(i) Compliance......................................................................19
Certificate of Service ...............................................................................................20
Appendix ..................................................................................................................21
2
Index of Authorities
Cases
Baylor Univ. v. Sonnichsen,
221 S.W.3d 632 (Tex. 2007) (per curiam) ...........................................................15
Boone v. Stone,
142 S.W.2d 936 (Tex. Civ. App.—Fort Worth 1940, writ dism’d) .....................12
DaimlerChrysler Motors Co. v. Manuel,
362 S.W.3d 160 (Tex. App.—Fort Worth 2012, no pet.) ....................................11
Guilliams v. Koonsman,
279 S.W.2d 579 (Tex. 1955) ......................................................................... 11–12
Houston v. Schuhmann,
92 S.W.2d 1086 (Tex. Civ. App.—Amarillo 1936, writ ref’d)..................... 13, 14
In re Agresti,
Nos. 13-14-00126-CV, 13-14-00149-CV, 13-14-00154-CV, 13-14-00168-
CV, 2014 Tex. App. LEXIS 5689, 2014 WL 3408691 (Tex. App.—
Corpus Christi May 29, 2014, orig. proceeding) (mem. op.) ...............................11
Jones v. Villareal,
No. 13-12-00166-CV, 2013 Tex. App. LEXIS 1782, 2013 WL 656839
(Tex. App.—Corpus Christi Feb. 21, 2013, pet. granted, judgm’t vacated
w.r.m.) (mem. op.) ..........................................................................................16–17
Mitchell v. Mitchell,
244 S.W.2d 803 (Tex. 1951) ................................................................................13
Morris v. Williams,
92 S.W.2d 541 (Tex. Civ. App.—Dallas 1936, writ ref’d) ..................................12
Progressive Cnty. Mut. Ins. Co. v. Kelley,
284 S.W.3d 805 (Tex. 2009) (per curiam) ...........................................................16
Sinnott v. Gidney,
322 S.W.2d 507 (Tex. 1959) ................................................................................14
3
Sullivan v. Skinner,
66 S.W. 680 (Tex. Civ. App. 1902, writ ref’d) ....................................................12
UMLIC VP LLC v. T&M Sales & Envtl. Sys.,
176 S.W.3d 595 (Tex. App.—Corpus Christi 2005, pet. denied) ........................15
Statutes
Tex. Estates Code Ann. § 255.051...........................................................................10
4
No. 13-14-00667-CV
Court of Appeals, Thirteenth District
Corpus Christi – Edinburg, Texas
In the Estate of
Mildred Ozella Favor Pursley,
a.k.a. Mildred F. Pursley, Deceased
Appeal from the Probate Court
Hidalgo County, Texas
Cause No. P-34,801-A
REPLY BRIEF OF APPELLANT
Appellant Rocky Joe Pursley files this Reply Brief pursuant to Rule 38 of
the Texas Rules of Appellate Procedure. Parties will be referred to as in the trial
court or by name. References to the Clerk’s Record will be to
{volume}CR{page}, and references to the Appendix will be to App{tab}.
Summary of the Reply
The heart of the dispute between Rocky and his brothers is whether their
parents’ joint 1975 Will allows the surviving parent to choose which child or
children will receive the remaining estate in a new will or codicil. The trial court’s
summary judgment in favor of Rocky’s brothers Harold, Jr., and Rolland cannot be
affirmed unless Harold, Jr., and Rolland demonstrate as a matter of law both that
the 1975 Will is a contract and that it requires the remaining estate to go to all three
sons, share and share alike. Harold, Jr., and Rolland have failed to meet this
burden, and as a result, the trial court’s summary judgment must be reversed.
Harold, Jr., and Rolland assert that their parents, Harold, Sr., and Mildred,
intended to shackle whichever parent survived to a specific, non-discretionary
testamentary plan for the rest of the survivor’s life, which in this case was more
than three decades. Specifically, Harold, Jr., and Rolland argue that, as a matter of
law, their parents intended for the remaining estate to go to the three sons equally
after the surviving spouse died. To succeed with this argument, Harold, Jr., and
Rolland must overcome a daunting obstacle in the 1975 Will’s language: they
must demonstrate that the testators intended two different provisions with
remarkably different language to have the same meaning. As shown in their brief
before this Court and discussed below, the 1975 Will’s language proves
insurmountable for Harold, Jr., and Rolland. See Argument § I.
6
In an attempt to lessen their burden as summary judgment movants, Harold,
Jr., and Rolland claim the Court cannot consider whether the 1975 Will is
ambiguous. In addition to the undisputable fact that Rocky asserted ambiguity in
his pleadings as an alternative argument, this argument lacks merit. First, as
discussed below, Rocky did not waive his ambiguity point. Second, Harold, Jr.,
and Rolland are incorrect in contending that the trial court’s summary judgment
can stand even if the 1975 Will is ambiguous. Even if no party had raised
ambiguity, the Court would still need to determine whether the 1975 Will is
ambiguous to resolve this appeal and would have the power to raise ambiguity sua
sponte. See Argument § II.
As to Rocky’s argument that the 1975 Will is not contractual, Rocky stands
on his opening brief in this Court. Even if the 1975 Will is contractual, however,
Mildred did not breach that contract. Because Harold, Sr., and Mildred agreed to
allow the surviving spouse discretion to choose which child or children received
the remaining estate, Mildred was within her right to execute the 2007 Will and
2010 Codicil, which did not give the remainder of the estate to all the children in
equal shares. Rocky asks this Court to enforce his parents’ intent and to reverse
the trial court’s summary judgment against him.
7
Argument
I. Assuming for purposes of argument that the 1975 Will is contractual,
the 2007 Will and 2010 Codicil do not breach that contract as a matter of law.
A. Introduction.
Harold, Jr., and Rolland are saddled with the unenviable burden of
demonstrating, as a matter of law, that Harold, Sr., and Mildred intended for two
different provisions of the 1975 Will with strikingly different language to have the
same meaning—that is, to give the remaining estate to all three children, share and
share alike. In their brief before the Court, Harold, Jr., and Rolland fail to meet
this burden, and as a result, the trial court erred in granting their summary
judgment motion.
Paragraph IV of the 1975 Will of Harold, Sr., and Mildred states that upon
the death of the survivor of them, the remaining estate shall go to and vest in “any
child or children of this marriage.” 1CR57–58. Harold, Jr., and Rolland contend
that this will is contractual, meaning that the survivor is prohibited from creating a
new will that disposes of the remaining estate in any way other than to “any child
or children of this marriage.” See Appellees’ Brief 31–46. A subsequent will and
codicil of the survivor, Mildred, devised the property to two children of the
marriage, Rocky and Rolland. 1CR77, 83. These gifts were not in equal shares,
and no property was left to the remaining child, Harold, Jr. See 1CR77, 83.
8
Rocky contends that even if the 1975 Will is contractual, Mildred did not
breach it. See Appellant’s Brief 24–33. This is because the provision means what
it says; that is, the survivor has the discretion to give the property to one or more of
the children and is not required to give it in equal shares. Id. Harold, Jr., and
Rolland argue that the language “any child or children” implies that the property
must go to all of the children in equal shares. Appellees’ Brief 46–57.
Paragraph V of the 1975 Will presents a major problem for this argument of
Harold, Jr., and Rolland. See 1CR58. This paragraph provides that if Harold, Sr.,
and Mildred both die in the same accident or within the same week, the property
goes to “our beloved children, HAROLD WAYNE PURSLEY, JR., ROLLAND
HUGH PURSLEY AND ROCKY JOE PURSLEY, share and share alike.”
1CR58. Thus, Paragraph V demonstrates that when Harold, Sr., and Mildred
wanted to provide that all three children inherit in equal shares, they knew how to
say so with unmistakable clarity. However, they did so only in connection with
Paragraph V and not in connection with Paragraph IV, the provision at issue.
1CR57–58.
B. Harold, Jr., and Rolland’s pretermission argument.
Late in their brief, Harold, Jr., and Rolland finally turn to the question of
why the language of Paragraph V was not also used in Paragraph IV. They
speculate the reason is the “likely” concern about the possibility of a pretermitted
9
child. See Appellees’ Brief 53–54. A pretermitted child is a child born to or
adopted by the testator after a will is executed. See Tex. Estates Code Ann.
§ 255.051/AppA. Even assuming that the possibility of another child was utmost
in the minds of testators the age of Harold, Sr., and Mildred,1 this argument is
unpersuasive.
Harold, Jr., and Rolland suggest that the language of Paragraph V was not
used in Paragraph IV because to do so would have resulted, under the
pretermission statute, in a pretermitted child receiving part of the bequest intended
for the survivor. Appellees’ Brief 54. This speculation is totally implausible. If
Harold, Sr., and Mildred had been concerned about a pretermitted child, that
concern could have been addressed by using the Paragraph V language in
Paragraph IV and simply adding the words “and any children born to or adopted by
us after the date of this will.” It makes no sense that testators motivated to avoid
the pretermission statute would have done so in language completely different
from the clear language of Paragraph V.
Furthermore, if Harold, Sr., and Mildred really thought that the language of
Paragraph IV clearly provided that the remaining estate should go to all of their
children, share and share alike, they would have used the Paragraph IV language in
Paragraph V rather than going to the trouble of using substantially different
1
Harold, Sr., was between 55 and 57 years old at the time of the 1975 Will. See 1CR61.
Mildred was between 45 and 47 years old at such time. See 1CR5.
10
language in Paragraph V to express the same desire. In short, the pretermission
argument does not explain why the language in Paragraphs IV and V differs. This
argument falls drastically short of meeting Harold, Jr., and Rolland’s burden to
establish their interpretation as a matter of law.
Courts should presume that when parties use different language in different
places of a contract, the difference is intentional. See DaimlerChrysler Motors Co.
v. Manuel, 362 S.W.3d 160, 184–85 (Tex. App.—Fort Worth 2012, no pet.); see
also In re Agresti, Nos. 13-14-00126-CV, 13-14-00149-CV, 13-14-00154-CV, 13-
14-00168-CV, 2014 Tex. App. LEXIS 5689, at *22–26, 2014 WL 3408691 (Tex.
App.—Corpus Christi May 29, 2014, orig. proceeding) (mem.op.). In the present
case, that presumption stands unrebutted.
C. The phrase “any child or children” means what it says.
According to Harold, Jr., and Rolland, legal authorities firmly establish the
principle that the language “‘any child or children’ implies (emphasis added) a gift
to all (emphasis original) the living children.” Appellees’ Brief 50. They cannot
explain why the attorney drafting the 1975 Will would rely upon what they admit
is an implication rather than the crystal clear language used in Paragraph V.
Further, the authorities cited by Harold, Jr., and Rolland provide very weak
support for this supposed principle. In both Guilliams and Boone, there was only
one possible child to which the language applied. Guilliams v. Koonsman, 279
11
S.W.2d 579, 581 (Tex. 1955); Boone v. Stone, 142 S.W.2d 936, 938 (Tex. Civ.
App.—Fort Worth 1940, writ dism’d); see Appellees’ Brief 40–41. In Sullivan,
the question was whether a debtor husband had any interest in rent from his wife’s
separate property when that rent was sought by a creditor via a writ of
garnishment. Sullivan v. Skinner, 66 S.W. 680, 681–82 (Tex. Civ. App. 1902, writ
ref’d); see Appellees’ Brief 42. In Morris, the question was whether the reference
to “child or children” in the intestacy statutes included just minor children or adult
children as well. Morris v. Williams, 92 S.W.2d 541, 543–44 (Tex. Civ. App.—
Dallas 1936, writ ref’d); see Appellees’ Brief 39. Thus, the issue of how the
language “any child or children” should be applied in the event of multiple
children is not presented in any of these cases. The only other authority cited by
Harold, Jr., and Rolland for this supposed principle is the intestacy statute, Section
201.002 of the Texas Estates Code. Appellees’ Brief 42. Of course, the present
case does not concern intestacy.
Even if dictum from these cases, one of which is over a century old and all
of which are more than a half-century old, together with an irrelevant statute, do
establish that “child or children” generally means all children, that principle is not
applicable in the present case. First, none of these authorities concern contractual
wills, and contractual wills are disfavored and should be construed narrowly. See
Appellant’s Brief 27–29. Secondly, even Harold, Jr., and Rolland concede that
12
their principle should not be applied when the context shows a clear intention to
the contrary. Appellees’ Brief 51–52 (citing Mitchell v. Mitchell, 244 S.W.2d 803,
806 (Tex. 1951)). In the present case, the differences between Paragraphs IV and
V show a clear intention to the contrary. 1CR57–58; see supra § I.B.
Rocky’s position is also supported by the 1975 Will’s provision concerning
vesting. In that connection, the Will provides as follows: “[U]pon the death of
such survivor, any of such estate then remaining shall go and vest in any child or
children of this marriage.” 1CR57–58 (emphasis added). The fact that the 1975
Will provides that vesting does not take place until the death of the survivor makes
sense only if the survivor, as Rocky argues, has discretion in apportioning the
bequest among one or more of the children. Harold, Jr., and Rolland argue that the
will is contractual and that the survivor has no discretion. If that were true, there is
no reason to expressly delay vesting until the death of the survivor.
Harold, Jr., and Rolland contend that vesting occurred at the death of
Harold, Sr. See Appellees’ Brief 47–48 (citing Houston v. Schuhmann, 92 S.W.2d
1086, 1089 (Tex. Civ. App.—Amarillo 1936, writ ref’d)). However, as the
following language of Houston indicates, the general rule that vesting takes place
at the death of the testator applies only when the will does not fix the time for
vesting: “The general rule is that a devise or bequest to a class, if no time for
13
vesting is fixed will take effect at the death of the testator.” Houston, 92 S.W. 2d at
1089 (emphasis added).
Harold, Jr., and Rolland characterize the argument as whether Mildred had
“the right to unilaterally disregard her husband’s wishes.” Appellees’ Brief at 22.
That formulation merely begs the question. The correct formulation is whether the
testators intended to contract away their right, as survivor, to give the property to
one or more of the children in shares deemed appropriate by the survivor.
Harold, Jr., and Rolland cite Sinnott v. Gidney, 322 S.W.2d 507, 512 (Tex.
1959) for the proposition that in a case of real doubt, a construction that gives
equal treatment to all heirs of the same class is favored. Appellees’ Brief 45.
Sinnott, however, is inapplicable. It does not deal with contractual wills, which are
strictly construed. See Sinnott, 322 S.W.2d at 509; Appellant’s Brief 27–29.
Moreover, as demonstrated above and in Rocky’s Brief of Appellant, there is no
real doubt as to the meaning of Paragraph IV’s “any child or children” language in
the present case. See supra § I.B; Appellant’s Brief 24–33.
D. Conclusion.
Even if the 1975 Will is contractual, Mildred did not breach that contract in
her subsequent will and codicil. The testators did not contract away their right, as
survivor, to give the property to one or more of the children in shares deemed
14
appropriate by the survivor. In fact, they specifically contracted for the surviving
spouse to have that ability.
II. The Court must determine whether the 1975 Will is ambiguous.
Rocky did not waive his alternative argument of ambiguity, and even if
Rocky had never raised ambiguity, this Court would still need to address
ambiguity.
The specificity of Rocky’s pleading is subject to the fair notice pleading rule
that liberally construes all pleadings in favor of the pleader. UMLIC VP LLC v.
T&M Sales & Envtl. Sys., 176 S.W.3d 595, 609 (Tex. App.—Corpus Christi 2005,
pet. denied). Any objection to the specificity of Rocky’s pleading should have
been made via special exception. See Baylor Univ. v. Sonnichsen, 221 S.W.3d
632, 635 (Tex. 2007) (per curiam) (explaining that parties should use special
exceptions when they believe that a pleading is not clear or sufficiently specific).
Rocky undisputedly pleaded ambiguity, and Harold, Jr., and Rolland made no
exception to Rocky’s pleading. 1CR95–96, 2CR234–35 (pleading); Appellees’
Brief 27 (acknowledging pleading).
Harold, Jr., and Rolland claim that Rocky “conceded that there are no fact
issues to be decided by the jury.” Appellees’ Brief 28. This assertion is false
under the record. Rocky’s counsel never agreed that no fact issues remained in this
case, and accordingly Harold, Jr., and Rolland cite nothing in the record where
15
Rocky’s counsel made such a concession. Instead Harold, Jr., and Rolland cite
their own counsel’s statement, but Rocky’s counsel never agreed with that
statement. Appellees’ Brief 29 (citing 2CR250). The unilateral statement of
Harold, Jr., and Rolland’s counsel at the end of a pre-trial hearing concerning the
remaining proceedings does not constitute an agreement of the parties or a
concession on Rocky’s behalf. See 2CR253. As a result, no waiver of Rocky’s
live pleadings occurred.
Even if Rocky had never raised ambiguity in the trial court or on appeal,
however, the Court would still need to determine whether the 1975 Will is
ambiguous. Progressive Cnty. Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 808 (Tex.
2009) (per curiam) (finding ambiguity though neither party raised it). Ambiguity
is a question of law to be decided by the Court. Id. When a contract contains an
ambiguity, the granting of a motion for summary judgment is improper because the
interpretation of the instrument becomes a fact issue. Id. at 809. Accordingly
Harold, Jr., and Rolland, as summary judgment movants, had the burden to prove
the 1975 Will was not ambiguous as a matter of law. See id. at 808–09. As a
result, this Court must determine whether the contract is ambiguous, and even if no
party had argued ambiguity, this Court would have the power to raise the issue
itself to resolve the appeal. Id.; Jones v. Villareal, No. 13-12-00166-CV, 2013
Tex. App. LEXIS 1782, at *17, 2013 WL 656839 (Tex. App.—Corpus Christi Feb.
16
21, 2013, pet. granted, judgm’t vacated w.r.m.) (mem. op.) (“The issue of
contractual ambiguity may be considered sua sponte by a reviewing court.”).
III. Conclusion
Even if the 1975 Will is contractual, its language shows that Harold, Sr., and
Mildred intended to allow the survivor to choose which child or children received
the remaining estate. A key factor in understanding the 1975 Will is the difference
in the language between Paragraphs IV and V. Harold, Jr., and Rolland cannot
provide a convincing explanation for why these two paragraphs should have the
same effect. In the alternative, the meaning of the 1975 Will is ambiguous. In
either case and for the additional reasons stated in Rocky’s opening brief, the trial
court’s summary judgment must be reversed.
17
Prayer
For the foregoing reasons, Rocky requests that this Court reverse the trial
court’s imposition of a constructive trust and render judgment either (1) that the
1975 Will is not contractual or (2) that such contract was not breached. As a
result, the case should be remanded for further proceedings, including proceedings
on the issue of undue influence.
Alternatively, Rocky requests that this Court reverse the trial court’s
imposition of a constructive trust and render judgment that the 1975 Will is
ambiguous either as to (1) whether the 1975 Will is contractual or (2) whether that
alleged contract was breached. As a result, the case should be remanded for trial
on parol evidence.
Respectfully submitted,
Atlas, Hall & Rodriguez, LLP
818 Pecan/P.O. Box 3725
McAllen, Texas 78501/78502
(956) 682-5501 (phone)
(956) 686-6109 (facsimile)
By: /s/ J. Joseph Vale
J. Joseph Vale
State Bar No. 24084003
jvale@atlashall.com
Charles C. Murray
State Bar No. 14719700
ccmurray@atlashall.com
Attorneys for Appellant Rocky Joe Pursley
18
Certificate of Rule 9.4(i) Compliance
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify
that the number of words in this Brief of Appellant, excluding those matters listed
in Rule 9.4(i)(1), is 2,940 words per the word processing program used for its
preparation (Microsoft Word).
/s/ J. Joseph Vale
J. Joseph Vale
19
Certificate of Service
I certify that the foregoing document was electronically filed with the Clerk
of the Court using the electronic case filing system of the Court. I also certify that
a true and correct copy of the foregoing was served on the following counsel of
record on May 1, 2015 as follows:
Recipient: Attorney for: Served by:
Edmundo O. Ramirez Appellees, Harold Electronically if
(eor@ekrattorneys.com) Wayne Pursley, Jr., available, or by
Minerva I. Zamora and Rolland Hugh facsimile
(miz@ekrattorneys.com) Pursley
Daniel Koeneke
(daniel@ekrattorneys.com)
ELLIS, KOENEKE & RAMIREZ L.L.P.
1101 Chicago Avenue
McAllen, Texas 78501
Facsimile: (956) 682-0820
Marlane A. Meyer Temporary Electronically if
(mmeyer308@aol.com) administrator, available, or by
MEYER & GUERRERO, L.L.P. PlainsCapital Bank facsimile
308 N. 15th Street
McAllen, Texas 78501
Facsimile: (956) 631-1489
/s/ J. Joseph Vale
J. Joseph Vale
20
Appendix
Tab Date Document
A — Tex. Estates Code Ann. § 255.051
21
TAB A
OF THE APPENDIX
Tex. Estates Code § 255.051
This document is current through the 2013 3rd Called Session
Texas Statutes and Codes > ESTATES CODE > TITLE 2. ESTATE OF DECEDENTS; DURABLE
POWERS OF ATTORNEY > SUBTITLE F. WILLS > CHAPTER 255. CONSTRUCTION AND
INTERPRETATION OF WILLS > SUBCHAPTER B. SUCCESSION BY PRETERMITTED CHILD
§ 255.051. Definition
In this subchapter, ″pretermitted child″ means a testator’s child who is born or
adopted:
(1) during the testator’s lifetime or after the testator’s death; and
(2) after the execution of the testator’s will.
History
Enacted by Acts 2009, 81st Leg., ch. 680 (H.B. 2502), § 1, effective January 1,
2014.
LexisNexis ® Texas Annotated Statutes
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group All rights
reserved.
in the Estate of Mildred Ozella Favor Pursley A.K.A. Mildred F. Pursley
Combined Opinion