Buckner v. Buckner

• Decision Date: 30 August 1991
• Docket Number: No. 12-89-00091-CV,12-89-00091-CV
• Citation: 815 S.W.2d 877
• Parties: C.R. BUCKNER and Helen Buckner, Appellants, v. Laura Beth BUCKNER, Appellee.
• Court: Texas Court of Appeals

Page 877

815 S.W.2d 877

C.R. BUCKNER and Helen Buckner, Appellants, v. Laura Beth BUCKNER, Appellee.

No. 12-89-00091-CV.

Court of Appeals of Texas Tyler.

Aug. 30, 1991.

Joe E. Shumate, Henderson, for appellants.

Carl H. Barber, Bath, Turner, Barber & Shumate, Henderson, for appellee.

RAMEY, Chief Justice.

This appeal arose from a judgment in favor of the proponent of a will, Laura Beth Buckner. The will was offered for probate as a muniment of title more than four years after the death of the decedent, Alvin Buckner. The jury found that the delay in filing the application for probate was the result of fraud on the part of the deceased's son, C.R. Buckner. We will affirm.

The appellants are C.R. Buckner and Helen Buckner, the deceased's widow. Laura Beth Buckner has been the wife of C.R. Buckner for the past thirty-eight (38) years; a divorce action was pending at the time of the trial of this case. Alvin Buckner died on January 18, 1983. The application to probate the subject will was filed on June 27, 1988. Appellants contend that the four year statute of limitations (section 73, TEXAS PROBATE CODE) bars the admission of the will to probate.

Appellants' first three points pertain to the timeliness and adequacy of appellee's pleadings in responding to appellants' limitation plea. The first point complains of the trial court's failure to grant appellants' motion for instructed verdict after the parties had announced ready for trial, but before the trial had commenced. The motion for instructed verdict was premature. Such motion could have been urged after the plaintiff/proponent rested her case, but not before. 3 R. MCDONALD, TEXAS CIVIL PRACTICE § 11.26.B, p. 190 (rev.1983); Ormsby v. Travelers Indem. Co. of Rhode Island, 573 S.W.2d 281, 285 (Tex.Civ.App.--Waco 1978, no writ). ¹ Appellants' first point of error is overruled.

In their second point of error, appellants assert that the trial court erred in permitting appellee to orally amend her application to probate the will after the parties had announced ready for trial. Rule 66, TEX.R.CIV.P. permits a trial court to freely allow such a trial amendment in the interest of justice when the court is not satisfied that the objecting party is prejudiced thereby.

Numerous cases have held that the trial court has not committed reversible error in allowing the trial amendment unless the objecting party not only pleads surprise, but also asks for a continuance to prepare for the new allegations. National Mortg. Corp. of America v. Stephens, 723 S.W.2d 759, 762 (Tex.App.--El Paso 1986), rev'd on other grounds, 735 S.W.2d 474 (Tex.1987); H.O. Dyer, Inc. v. Steele, 489 S.W.2d 686, 688 (Tex.Civ.App.--Houston [1st Dist.] 1972, no writ). Appellants did not request a continuance. Their second point of error is overruled.

By their third point of error, appellants complain that the trial court erred in proceeding to trial after the proponent had made her amendment to the application. This point pertains to the adequacy of the new pleading, not its timeliness. Appellants argue that the amended pleading was deficient in that the excuse alleged for the delay in filing the will for probate was the bare assertion of "fraud on the part of C.R. Buckner against the Proponent/Applicant, Laura Beth Buckner."

No complaint of defective pleading may be considered on appeal in the absence of a timely special exception to that pleading. TEX.R.CIV.P. 90; O'Shea v. Coronado Transmission Co., 656 S.W.2d 557, 564 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.). Here, however, no special exception was filed to the fraud pleading before the charge was read to the jury as required. Appellants' third point is overruled.

The appellants' next three points are evidentiary. The fourth point of error complains of the court's failure to grant an instructed verdict at the close of proponent's case-in-chief. The fifth point asserts that the court erred in failing to grant appellants' motion for new trial based on "no evidence." In the sixth point, the complaint is made that the motion for new trial should have been granted based on "insufficient evidence."

Point four, the complaint of the failure to grant the directed verdict, is not sustainable. After the trial court announced that he was denying the motion for directed verdict, appellants proceeded to present their evidence. Also, after all the evidence was presented, appellants did not re-urge their motion for directed verdict as required. The point was not preserved for review. Jacobini v. Hall, 719 S.W.2d 396, 398 (Tex.App.--Fort Worth 1986, writ ref'd n.r.e.); Wenk v. City National Bank, 613 S.W.2d 345, 348 (Tex.Civ.App.--Tyler 1981, no writ). The fourth point of error is overruled.

Point five challenges the legal sufficiency of the evidence to support the jury finding of fraud. In reviewing a no evidence point, we look only at the evidence that tends to support the jury verdict, and ignore all evidence to the contrary. Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965).

In reviewing a point of error alleging factual insufficiency, as in the sixth point, we must look at all the evidence and uphold the jury's finding unless it is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); Potter v. Garner, 407 S.W.2d 537 (Tex.Civ.App.--Tyler 1966, writ ref'd n.r.e.).

Alvin Buckner's estate consisted of one asset, a 264 acre tract of land situated in rural Rusk County. In the subject will, Mr. Buckner devised a one-half interest in his estate to his wife, appellant Helen Buckner; the residuary was devised to his son, appellant C.R. Buckner, and his daughter-in-law, appellee Laura Beth Buckner, share and share alike in fee simple. Thus, the property in dispute is a one-fourth separate property interest in the 264 acre tract, an undivided 66 acres therein.

The issue is whether there was legal or factually sufficient proof that appellee was not in default in failing to offer the will for probate within the prescribed four year period, as the result of fraud on the part of the appellant, C.R. Buckner. The jury found that Laura Beth Buckner failed to timely offer the will as a result of C.R. Buckner's fraud. The probate court thereupon entered judgment that the will be admitted to probate as a muniment of title.

C.R. Buckner's representations to his wife of the consequences of probating his father's will, or alternatively, allowing the 264 acre tract to pass by intestate succession, was a legal opinion of their respective rights under Texas law. Legal opinions will not ordinarily support an action for fraud. Fina Supply, Inc. v. Abilene Nat'l Bank, 726 S.W.2d 537, 540 (Tex.1987). The reason for the rule is that everyone is presumed to know the law, and therefore one should not be permitted to rely upon another's representations of the law; but it is equally well settled that misrepresentations about a point of law are actionable if it appears that it was so intended and understood. Safety Casualty Co. v. McGee, 133 Tex. 233, 127 S.W.2d 176, 178 (Tex.Comm'n App.1939, opinion adopted); Marlow v. Medlin, 558 S.W.2d 933, 938 (Tex.Civ.App.--Waco 1977, no writ). Likewise, there are specific exceptions to the general rule pertaining to misrepresentations in legal opinions. One exception is a fiduciary or confidential relationship of trust between the communicating parties. Fina Supply, Inc., 726 S.W.2d at 540. It has long been recognized in Texas that a confidential relationship does exist between a husband and his wife. Wiley and Co. v. Prince, 21 Tex. 637 (1858); Bohn v. Bohn, 455 S.W.2d 401, 406 (Tex.Civ.App.--Houston [1st Dist.] 1970, writ dism'd).

Having established that a fiduciary or confidential relationship exists arising out of a marriage, the burden of demonstrating the fairness of the transaction passes to the person making the representation. Texas Bank and Trust Co. v. Moore, 595 S.W.2d 502, 509 (Tex.1980). The husband must disclose the material facts within his knowledge and the legal consequences flowing from them to his wife. Bohn, 455 S.W.2d at 406. "Equity indulges the presumption of unfairness and invalidity, and requires proof at the hand of the party claiming validity and benefits of the transaction that it is fair and reasonable." Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257, 260 (Tex.1974).

The proponent of the will, Laura Beth Buckner, testified that she often requested of her husband, C.R. Buckner, that the will be probated. He would respond, "It's ours anyway. Why probate it?" He contended, "that we would be the loser if we probated it." Appellee stated that she did not probate the will because "her husband told her not to." She testified that, "I was used to doing the things he asked me to do," and that "she trusted him all these years." She acknowledged that her husband had never told her that she should not seek her own independent counsel; she had physical access to the will which was in a family lock box that she had entered 54 times since 1974, whereas C.R. Buckner had only been in the box one time in that same period. Her explanation of her more frequent contact with the lock box was that she ran the errands for the family.

The appellant, C.R. Buckner, on the other hand, testified that this tract of land was acquired by his grandfather and that he and his father had been born on this property. He said that all of his family, including the decedent, desired that it remain in the family. His wife discussed probating the will "Every time she got mad at my mother or me, which was quite often." She would say, "Let's probate that will. We've got to probate that [W]ill." He said that he would tell her, "No," because his mother did not want it probated. He told her, "It was ours anyway," which included this appellee, his daughter, and his mother. He...