In Re the Estate of Bendtsen

Citations: 230 S.W.3d 823; 2007 Tex. App. LEXIS 5432; 2007 WL 2004862Docket: 05-05-01531-CV

Court: Court of Appeals of Texas; July 12, 2007; Texas; State Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Mary Ellen Logan Bendtsen died on March 2, 2005. Shortly after her death, Dixie Tidwell filed a will dated February 22, 2005, while Frances Giron filed a will dated October 23, 2002, and contested the 2005 will. The trial court granted Giron's summary judgment motion, invalidating the 2005 will and admitting the 2002 will to probate. Tidwell appealed, raising five issues: (1) error in granting Giron's traditional summary judgment motion; (2) error in granting Giron's no-evidence motion for summary judgment; (3) inclusion of a "Mother Hubbard" clause in the summary judgment order; (4) denial of Tidwell's motion to modify the judgment filed over thirty days post-judgment; and (5) denial of Tidwell's request to supplement the summary judgment record after 105 days. The appellate court affirmed the trial court's judgment.

Bendtsen's 2002 will left her estate to Giron, naming her daughter as executrix. The 2005 will, executed after Bendtsen suffered a stroke, designated Tidwell as executrix and made specific bequests, including a chair to Giron and jewelry to Beatrice Grayson. Issues arose regarding the execution of the 2005 will, specifically concerning the attestation by witnesses Tidwell and Cline. They signed the will after Bendtsen, but Tidwell's signature was not in Bendtsen's presence, and the notary was not present during the will's signing. Witness testimonies indicated that Tidwell filmed the signing, then later filled out the will’s witness section without Bendtsen present when signing before the notary.

Section 59 of the Texas Probate Code outlines the requirements for a valid will, stating it must be in writing, signed by the testator (or by another at their direction), and attested by two credible witnesses if not entirely in the testator's handwriting. Giron moved for both traditional and no-evidence summary judgment, arguing the will did not satisfy these requirements, particularly that Tidwell did not sign the attestation clause in Bendtsen's presence, and that Tidwell lacked evidence of Bendtsen's testamentary capacity and intent. During the summary judgment hearing, the trial court decided to focus on the traditional grounds regarding the will's compliance with statutory requirements, ultimately granting summary judgment on these grounds and one no-evidence ground related to the will's requisites, thus setting aside the 2005 will and admitting the 2002 will to probate.

Tidwell appealed, asserting the trial court erred in its ruling. The standards for reviewing summary judgments are established: a traditional motion requires the movant to show no genuine issue of material fact exists, while a no-evidence motion asserts the absence of evidence for essential claim elements. The trial court’s ruling on summary judgment must be affirmed if any ground is valid, and failure to argue a ground on appeal waives any error regarding that ground.

Tidwell's first issue challenges the traditional ruling about the will's statutory compliance, while the second issue contends the trial court improperly considered the no-evidence ground. However, the second issue did not challenge the merit of the no-evidence ground, so the court must assess whether the trial court erred in addressing it. If not, Tidwell waived the right to contest it due to a lack of argument.

The court affirmed the granting of a motion for summary judgment based on the no-evidence ground concerning whether the will met the statutory requirements of section 59 of the probate code. During the hearing, the trial court mistakenly conflated the execution of the will with a traditional ground while viewing testamentary capacity and intent as no-evidence grounds. Giron's counsel clarified that the no-evidence motion focused on Ms. Bendtsen's lack of testamentary capacity, while Tidwell's counsel requested more time to depose expert witnesses on this matter. Ultimately, the court ruled to sustain Tidwell's objections regarding the no-evidence grounds and decided to address the will's execution in accordance with Texas probate law. After deliberation, the court granted the motion for summary judgment, specifying that it only pertained to the traditional ground. The order set aside the will as not admissible to probate, and the court instructed to revise the documentation to reflect these specifics.

Tidwell's counsel sought to probate a will as a nuncupative will, but the trial court indicated a separate motion was necessary. Tidwell raised concerns about a judgment's ruling on a no-evidence motion in a motion for a new trial filed on September 12, 2005, which was overruled by operation of law on October 26, 2005. The denial of a motion for a new trial is generally reviewed under an abuse-of-discretion standard, meaning the trial court's decision can only be overturned if found unreasonable or arbitrary. Tidwell objected to proceeding based on no-evidence grounds, claiming she required more time to depose expert witnesses regarding Bendtsen's testamentary capacity. However, she did not express a need for additional time on the execution of the will.

The trial court may have reasonably concluded Tidwell was prepared to address all execution-related grounds, with her unpreparedness only pertaining to testamentary intent and capacity. Tidwell argued harm from the trial court's decision to address the no-evidence issue, asserting she had filed supplemental affidavits that demonstrated her intent regarding the will's execution. However, these affidavits were not included in the appellate record, and documents not part of the clerk's or reporter's records cannot be considered by the reviewing court. Consequently, the court found no indication of harm due to the trial court's actions on the no-evidence grounds. The trial court did not abuse its discretion in denying Tidwell's motion to modify, correct, or reform the judgment, nor in granting the no-evidence summary judgment regarding the will's execution. Tidwell's appeal of the trial court's decision on the no-evidence issue was deemed waived, leading to the affirmation of the summary judgment.

Tidwell contends that the trial court erred by including a "Mother-Hubbard" clause in the judgment, which she argues prevents her from seeking compensation for expenses and attorney's fees under section 243 of the probate code. Additionally, she claims the court improperly ruled on February 12, 2006, that it lacked jurisdiction to correct judicial errors in the August 12, 2005 judgment and over her December 22, 2005 motion. To preserve such complaints, parties must timely file motions to modify or correct the judgment or motions for new trials. Tidwell's December 22, 2005 motion, which included various requests, was filed 132 days after the final judgment, making it untimely under Texas Rule of Civil Procedure 329b(a), which requires filing within thirty days. Consequently, the court's denial of this motion cannot be reviewed on appeal. Tidwell also claims the trial court erred by not allowing her to supplement the summary judgment record with additional affidavits dated August 12, 2005. However, these affidavits are not included in the appellate record, and there is no evidence they were submitted to the trial court, thus failing to demonstrate any abuse of discretion by the court. The court affirms the trial court's judgment and overrules Tidwell's third, fourth, and fifth issues. Additionally, Giron raises a conditional cross-point regarding the trial court's failure to address summary judgment grounds related to testamentary capacity and intent, but this is not considered due to the affirmation of the judgment.

At the submission of the case, Tidwell's counsel, Edwin Olsen, clarified that issue one pertained solely to traditional grounds, while issue two involved no-evidence grounds. He confirmed that they were challenging the trial court's no-evidence motion for summary judgment on its merits. Counsel argued that the judge did not rule on any no-evidence grounds and mistakenly indicated such in the order, an error acknowledged by Judge Loving. Olsen asserted that there was more than a scintilla of evidence presented, specifically referencing four affidavits from witnesses at the relevant event. He stated that the appeal also involves issue number five, as Judge Loving's ruling prevented the introduction of supplementary affidavits regarding the intent issue. The August 12 hearing's transcript noted the court's recognition of the premature nature of addressing no-evidence aspects of the motion. Tidwell's second issue contends that the trial court erred by granting summary judgment based on no-evidence grounds, particularly Giron's "Paragraph III, No-evidence Grounds," since the court had already sustained Tidwell's objection to these grounds. In response to the summary judgment motion, Tidwell highlighted that four witnesses testified to Mary Ellen's mental competency and awareness during the execution of her will on February 22, 2005.

The judgment declares that it constitutes a Final Judgment regarding the Application for Probate of Will and Issuance of Letters Testamentary filed by Dixie L.M. Tidwell, resolving all claims and parties involved in this matter, and it is subject to appeal. According to Section 243 of the probate code, individuals designated as executors or beneficiaries who defend or prosecute a will's admission to probate in good faith and with just cause are entitled to reimbursement from the estate for necessary expenses and reasonable attorney's fees, regardless of the outcome. The supreme court applied civil procedure rules 5, 329b(b), and 329b(e), affirming that these rules govern both motions for new trial and motions to modify judgments. The December 22, 2005 motion was filed 132 days post-judgment, exceeding the trial court's plenary power, which is limited to 105 days. Consequently, the trial court properly concluded it lacked jurisdiction to address the motion.