ACCEPTED
04-14-00812-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/16/2015 1:42:12 PM
KEITH HOTTLE
CLERK
No. 04-14-00812-CV
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE COURT OF APPEALS 4/16/2015 1:42:12 PM
FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE
Clerk
OF TEXAS AT SAN ANTONIO
IN THE ESTATE OF CONSUELLA PERKINS ULBRICH
From the Probate Court No. One, Bexar County, Texas
Trial Court Cause No. 2011-PC-0686
Honorable Polly Jackson Spencer, Judge Presiding
APPELLANT’S REPLY BRIEF
Respectfully submitted,
Philip M. Ross
ORAL ARGUMENT REQUESTED State Bar No. 017304200
1006 Holbrook Road
San Antonio, Texas 78218
Phone: 210/326-2100
Email: ross_law@hotmail.com
By: /s/ Philip M. Ross
Philip M. Ross
Attorney for Appellant
Douglas J. Ulbrich
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ……………………………………………… ii
INDEX OF AUTHORITIES ………………………………………….. iii
PROCEDURAL HISTORY ………………………………......………. 1
LEGAL ARGUMENT …………...............……………………………. 2
I. THE TRIAL COURT DID NOT ERR IN GRANTING
SUMMARY JUDGMENT FINDING THAT A
PREPONDERANCE OF THE EVIDENCE
DEMONSTRATED THAT 3939 STARHILL SHOULD BE
DESIGNATED AS APPELLANT'S PROBATE
HOMESTEAD. …....................................................................... 2
II THE TRIAL COURT DID NOT ERR IN GRANTING
SUMMARY JUDGMENT FINDING THAT APPELLANT
HAD WAIVED/ABANDONED HIS PROBATE
HOMESTEAD AT 3939 STARHILL. …................................. 10
CONCLUSION and PRAYER ……………………….…………….. 11
CERTIFICATION ……..…………………………………………..… 12
CERTIFICATE OF COMPLIANCE ..…………...………….…...…. 12
CERTIFICATE OF SERVICE …………………..………….…...…. 12
ii
INDEX OF AUTHORITIES
CASES PAGE(S)
Brown v. Reed
48 S.W. 537 (Tex.Civ.App.1898, writ ref'd) …......................... 6
Casso v. Brand
776 S.W.2d 551 (Tex. 1989) ….................................................. 7
Cobbs v. Coleman
14 Tex. 594 (1855) …................................................................. 12
Hunter v. Clark
687 S.W.2d 811 (Tex.App. —San Antonio 1985) …........... 5, 6, 9
In the Estate of Consuella Perkins Ulbrich, deceased
04-12-00514-CV
(Tex. Civ. App. - San Antonio, January 15, 2014) …............... 1
Jenkins v. Hutchens
287 S.W.2d 295
(Tex.Civ.App.--Eastland 1956, writ ref'd n.r.e.) …......................... 6
Provident Life & Accident Insurance Co. v. Knott
128 S.W.3d 215-216 (Tex. 2003) …......................................... 7
Petrus v. Cage Brothers
128 S.W.2d 537
(Tex.Civ.App.--San Antonio 1939, writ ref'd) …....................... 9
Simank v. Alford
441 S.W.2d 234 (Tex.Civ.App. —Austin 1969) …........................... 5
iii
CASES PAGE(S)
Sparks v. Robertson
203 S.W.2d 622 (Tex.Civ.App. Austin 1947, writ ref'd) …...... 8, 9
Spencer v. Schell
173 S.W. 867 (1915) ….............................................................. 6
White v. Blackman
168 S.W.2d 531
(Tex.Civ.App. Texarkana 1942, writ ref'd w. o. m.) ….............. 9
Williams v. Williams
569 S.W.2d 867 (Tex. 1978) …................................................... 8
STATE STATUTES AND RULES PAGE(S)
Texas Constitution, Sec. 52, Art. 16 …........................................ 6, 8
Texas Probate Code § 271(b) ….................................................. 3,5
iv
04-14-00812-CV
IN THE COURT OF APPEALS FOR
THE FOURTH DISTRICT OF TEXAS
SITTING AT SAN ANTONIO
IN THE ESTATE OF CONSUELLA PERKINS ULBRICH
_________________________________________________________________
On appeal from Probate Court No. One, Bexar County, Texas
Honorable Polly Jackson Spencer, presiding
APPELLANT'S REPLY BRIEF
TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:
Now comes, Douglas J. Ulbrich (“Douglas”), and files his reply to
Appellees' opening brief and would show:
Procedural History
Appellees refer to the Memorandum Opinion of the Fourth Court of
Appeals, dated September 18, 2013, attached as Exhibit 1 in their Appendix.
However, this memorandum opinion was withdrawn and the Memorandum
Opinion of the Fourth Court of Appeals, No. 04-12-000514-CV, was substituted,
delivered and filed on January 15, 2014. Douglas incorporates the January 15,
2014 Memorandum Opinion of the Fourth Court of Appeals, No. 04-12-000514-
1
CV, by reference for all purposes.
LEGAL ARGUMENT
Appellees discussed two issues in response to Appellant's brief. Appellee's
first issue is stated:
I. THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY
JUDGMENT FINDING THAT A PREPONDERANCE OF THE
EVIDENCE DEMONSTRATED THAT 3939 STARHILL SHOULD BE
DESIGNATED AS APPELLANT'S PROBATE HOMESTEAD.
Douglas submits that Appellee's first issue misstates the trial court's finding.
The Order Granting Motion for Summary Judgment did not find that a
preponderance of the evidence demonstrated that 3939 Starhill should be
designated as Appellant's probate homestead.” The trial court found, “as a matter
of law, that at the time of death of Consuella Perkins Ulbrich, the Homestead of
Decedent existed at 3939 Starhill, San Antonio, Texas.” The trial court also
found, “as a matter of law, that the Texas Constitution's Survivor Homestead
granted to Douglas J. Ulbrich, surviving spouse of Consuella Perkins Ulbrich,
deceased, existed at 3939 Starhill, San Antonio, Texas.” Douglas submits that the
trial court did not make any findings as to the preponderance of evidence or make
any reference to evidence or guiding principles in support of its findings.
Douglas also submits that there was no evidence that the residence at 3939
2
Starhill, San Antonio, Texas was granted to Douglas as his Texas Constitution's
Survivor Homestead. On August 10, 2012, the trial court ordered that the
homestead located at 3939 Starhill, San Antonio, Texas shall be set aside for the
benefit of Douglas J. Ulbrich as the surviving spouse homestead, but this Order
was reversed on appeal by the January 15, 2014 Memorandum Opinion of the
Fourth Court of Appeals, No. 04-12-000514-CV.
Appellees argue that Douglas had the burden of proof pursuant to the Texas
Probate Code, Section 271(c) to demonstrate that his ranch was his probate
homestead, but he was unable to do so because the 3939 Starhill property had been
designated by the couple as their homestead from 2007-2010. However, Douglas
submits that his application for homestead property tax exemptions on his 3939
Starhill residence for tax years 2007-2010 does not preclude his designation of his
ranch as his probate homestead.
Douglas submits that his burden at the hearing on motion for summary
judgment was not to prove his probate homestead claim by a preponderance of
evidence but to demonstrate that there were genuine issues of material fact as to
each element of his probate homestead claim. Douglas further submits that he met
his burden by filing affidavits of persons with knowledge including himself and
3
supporting documentation, which demonstrated that there were genuine issues of
material fact as to each element of his probate homestead claim. (Affidavit of
Douglas Ulbrich, dated January 10, 2012 [CR 124-127] at page 125 ¶¶ 8-10, page
226 ¶¶ 11-13) (Affidavit of Karon Robertson, dated 10-1-10 [CR 128-130] at page
128 ¶ 2) (Affidavit of Gary Neubauer, dated 9-27-10 [CR 131-133] at page 131 ¶
2) (Affidavit of Al Cargen, dated December 17, 2012 [CR 134-139] at page 134 ¶
¶ 4-5, page 135 ¶¶ 6-16, page 136 ¶¶ 17-25) (Affidavit of Carolyn Watson, dated
December 17, 2012 [CR 140-145] at page 140 ¶ ¶ 4-5, page 141 ¶¶ 6-16, page
142 ¶¶ 17-25) (Affidavit of Mary Dahlman, dated December 17, 2012 [CR 146-
151] at page 147 ¶ ¶ 5-16) (Affidavit of Douglas Ulbrich, dated September 24,
2012 [CR 173-182] at page 173 ¶ ¶ 2-4, page 174-179).
Therefore, Douglas submits that the summary judgment evidence shows that
his homestead was his 160 acre ranch in Medina County, Texas, not 3939 Starhill,
San Antonio, Texas, and he did not abandon his probate homestead. Alternatively,
the summary judgment evidence establishes a genuine issue of material fact
whether Douglas' homestead was his 160 acre ranch in Medina County, Texas, not
3939 Starhill, San Antonio, Texas, and that he did not abandon his probate
homestead. At the time of his wife's death, Mr. Ulbrich owned four residences, of
4
which two were located at the Ulbrich Ranch, one was in Hondo, and the other
was in San Antonio. Mr. and Mrs. Ulbrich always considered the Ulbrich Ranch
to be their homestead, notwithstanding their application for a property tax
exemption for their house in San Antonio, Bexar County, Texas.
The facts in the instant case are somewhat similar to the facts in Simank v.
Alford, 441 S.W.2d 234 (Tex.Civ.App. —Austin 1969), which involved an urban
residence that was claimed as an exempt homestead for property tax purposes and
a rural homestead where the family lived only for a brief time. Douglas submits
that a claim of homestead exemption for property tax purposes does not foreclose
his probate homestead claim regarding his rural homestead.
Douglas submits that he complied with the requirements of Texas Probate
Code § 271(b) by timely filing his application on January 17, 2012 to set aside
exempt property including his rural homestead supported by his verified affidavit
listing all the property that he claims is exempt prior to the Court’s approval of an
inventory, appraisement and list of claims. Id. [CR2 30 – Dkt. 00055] Upon
remand from the first appeal, Douglas filed a motion to set aside exempt personal
property on May 27, 2014. [CR2 9-13]
Douglas also submits that his voluntary designation of his rural homestead
5
after the death of his wife is authorized by controlling case law. Hunter v. Clark,
687 S.W.2d 811, 814-815 (Tex.App. —San Antonio 1985) summarizes the rights
of the surviving spouse as follows:
The language of the Constitution is plain. The surviving spouse has
the same homestead rights as both spouses had prior to the death of one;
and this is true whether the survivor be the husband or the wife. Brown
v. Reed, 48 S.W. 537, 538 (Tex.Civ.App.1898, writ ref'd).
The homestead provision is intended to relate to the rights of heirs and
the surviving husband or wife, as between themselves, to
the homestead property. Spencer v. Schell, 107 Tex. 44, 173 S.W.
867 (1915). TEX. CONST. art. XVI, § 52 gives to the surviving spouse
the right to use and occupy the homestead, even though it was the
separate estate of the deceased. Jenkins v. Hutchens, 287 S.W.2d 295,
298 (Tex.Civ.App.--Eastland 1956, writ ref'd n.r.e.).
Douglas further submits that Appellees' argument in the last paragraph of
page 16 of their brief that the trial court properly determined that a preponderance
of the evidence dictated that 3939 Starhill be designated as his probate homestead
is misplaced. Douglas again submits that Appellees misconstrue the standard of
proof in a summary judgment hearing.
6
In order to establish a right to a traditional motion for summary judgment,
the movant must show that there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. Provident Life & Accident
Insurance Co. v. Knott, 128 S.W.3d 215-216 (Tex. 2003). If the movant meets
this burden, then the non-movant must produce summary judgment evidence to
raise a genuine issue of material fact. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.
1989). If the non-movant does not succeed in raising a genuine issue of material
fact, then the motion must be granted.
Douglas submits that the summary judgment evidence clearly shows that
there are genuine issues of material fact as to his claim that the Ulbrich Ranch is
his probate homestead. Douglas was raised in Medina County, Texas, and
belonged to a ranching family. When he married, he and Consuella continued the
Ulbrich family ranching tradition. At one time, they were managing three ranches
in Bexar, Kendall and Medina counties. Although they maintained a residence in
San Antonio and Hondo, they always considered the Ulbrich Ranch to be their
homestead, notwithstanding their application for a homestead property tax
exemption in Bexar County.
Douglas' affidavits establish facts relating to his rural Medina County
7
homestead claim. The Affidavits of people, who have known Douglas and his
wife including Al and Katie Cargen, Carolyn Watson, Karon Robertson, Gary
Neubauer, and Mary Dahlman provide corroborating evidence to support Douglas'
designation of the Ulbrich Ranch as his probate homestead.
In support of his claim of right to designate the Ulbrich Ranch as his
probate homestead, Douglas filed a Formal Bill of Exceptions with attached
exhibits including family photos at the ranch and his sworn affidavit, dated 9-24-
12, as well as a Verified Supplemental Formal Bill of Exceptions w/exhibits dated
10-3-12.
Douglas also alleges and would prove that banking records from his bank
accounts in Hondo, Medina County, Texas, provide evidence of his rural
homestead. Douglas also alleges and would prove that records of his property tax
accounts Medina County, Texas, provide evidence of his rural homestead.
Additionally, Douglas alleges and would prove that he and Consuella
purchased 80 acres of land that had been part of the historic Ulbrich Ranch from
his sister, showing that both Mr. and Mrs. Ulbrich committed a substantial
investment and a firm commitment early in their marriage to be a ranching family.
In 1978, the Texas Supreme Court decided the case of Williams v. Williams,
8
569 S.W.2d 867 (Tex. 1978) and ruled as follows:
Article XVI, section 52 of the Texas Constitution provides that
the homestead shall not be partitioned among the heirs of the deceased
during the lifetime of the surviving husband or wife, or so long as the
survivor may elect to use or occupy the same as a homestead. [1] This is
sometimes referred to as the probate homestead. O. Speer, Texas Family
Law § 36:62, at 208 (5th ed. 1977). This homestead right of the survivor
has been held to be one in the nature of a legal life estate or life estate
created by operation of law. See Sparks v. Robertson, 203 S.W.2d
622 (Tex.Civ.App. Austin 1947, writ ref'd); White v. Blackman, 168
S.W.2d 531 (Tex.Civ.App. Texarkana 1942, writ ref'd w. o. m.); Petrus
v. Cage Bros., 128 S.W.2d 537 (Tex.Civ.App. San Antonio 1939, writ
ref'd); Comment, The Widow's Exemption in Texas, 25 Baylor L.Rev.
346, 347 (1973). The Probate Code requires that the
probate homestead and certain exempt personal property [2] be set aside
to the surviving spouse. Tex.Prob.Code Ann. §§ 271, 272, 283, 284
(1956). These rights are provided by law for the protection of the family
and to secure a home for the surviving spouse.
Therefore, Douglas submits that he is entitled to claim his 160 acre rural
homestead, which is less than the maximum 200 acres for a survivor’s rural
homestead. He also submits that he did not waive his right to claim survivorship
rights in his rural homestead by applying for homestead exemption benefits for his
Bexar County residence for taxation purposes. Hunter v. Clark, 687 S.W.2d 811,
814-815 (Tex.App. —San Antonio 1985).
Appellees cite a portion of Douglas' testimony at a hearing in Medina
County Court at Law on January 11, 2011 and other summary judgment evidence
9
referred to at the bottom of page 16 of their brief as conclusive proof that a
“preponderance of evidence dictated that 3939 Starhill be designated as
Appellant's probate homestead.” However, considering all of the summary
judgment evidence in the record of this case, Douglas submits that the summary
judgment evidence clearly shows that there are genuine issues of material fact as
to his claim that the Ulbrich Ranch is his probate homestead.
Appellee's second issue is stated:
II THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY
JUDGMENT FINDING THAT APPELLANT HAD WAIVED/
ABANDONED HIS PROBATE HOMESTEAD AT 3939 STARHILL.
Douglas submits that Appellees' second issue is moot because the trial court
erred in granting summary judgment finding “as a matter of law, that the Texas
Constitution's Survivor Homestead granted to Douglas J. Ulbrich, surviving
spouse of Consuella Perkins Ulbrich, deceased, existed at 3939 Starhill, San
Antonio, Texas.” If Douglas' probate homestead was not 3939 Starhill, San
Antonio, then evidence that he abandoned that residence is irrelevant to his
probate homestead claim as to the Ulbrich Ranch in Medina County. The
existence of genuine issues of material fact are for a jury to decide, not for the
Court to determine as a matter of law, which precludes summary judgment.
10
Douglas respectfully submits that the Order Granting Motion for Summary
Judgment [CR 269-270] was signed in error on November 5, 2014 because there
were genuine issues of material fact as to each of the findings as matters of law
that the homestead of the Decedent was 3939 Starhill, San Antonio, Texas; that
the Texas Constitution's Survivor Homestead granted to Douglas Ulbrich was
3939 Starhill, San Antonio, Texas; that Douglas Ulbrich has voluntarily
abandoned and discontinued use of the Texas Constitution's Survivor Homestead
located at 3939 Starhill, San Antonio, Texas; and that Douglas Ulbrich cannot
transfer the Texas Constitution's Survivor Homestead to any other property.
WHEREFORE, PREMISES CONSIDERED, Douglas J. Ulbrich
respectfully requests the Court to reverse the trial court's order granting summary
judgment in its entirety and remand the case to the trial court for further
proceedings. Mr. Ulbrich requests such further relief at law or in equity to which
he may be justly entitled.
11
Respectfully submitted,
Philip M. Ross
SBN 17304200
1006 Holbrook Road
San Antonio, Texas 78218
Phone: 210/326-2100
Email: ross_law@hotmail.com
By: /s/ Philip M. Ross
Philip M. Ross
Attorney for Douglas J. Ulbrich
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has
been e-filed and sent on April 16, 2015 in compliance with the Texas Rules of
Appellate Procedure and/or by email pursuant to agreement to the following
attorneys:
Kristine Arlitt William Bailey
206 E. Locust St. 1100 N. W. Loop 410, Suite 700
San Antonio, Texas 78209 San Antonio, Texas 78213
William D. Crist
3123 N. W. Loop 410
San Antonio, Texas 78230
/s/ Philip M. Ross
Philip M. Ross
12
in the Estate of Consuella Perkins Ulbrich
Combined Opinion