Burns v. Burns
| Decision Date | 20 April 2023 |
| Docket Number | 12-22-00256-CV |
| Parties | ERIC D. BURNS, APPELLANT v. FAIRY JEAN BURNS, APPELLEE |
| Court | Texas Court of Appeals |
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Eric Dewayne Burns, proceeding pro se, appeals the trial court's order granting summary judgment in favor of Appellee Fairy Jean Burns. Eric raises three issues on appeal. We affirm.
Hershell Dewayne Burns was married to Fairy Jean Burns. In January 2008, Hershell was admitted to hospice care. During his time in hospice care, he was administered, among other things morphine. On May 22, Hershell executed his last will and testament.[1] The will identifies Fairy as Hershell's wife and Eric as his son. In his will Hershell states his intention to bequeath the entirety of his estate to Fairy. He further states, "I have already give my son, ERIC DEWAYNE BURNS, a 1985 Chevrolet Corvette for his inheritance from my estate." The will contains the signatures of two witnesses, as well as an executed self-proving affidavit. Hershell died on July 23.
On August 21, Fairy filed an application to probate Hershell's will and for the issuance of letters testamentary with the County Court of Smith County, Texas. Hershell's will was filed with the trial court that same day. On September 2, the trial court issued the citation by posting.
On September 9, the trial court signed an order admitting the will to probate and authorizing letters testamentary. The order set forth, among other things, that the will was proved and established, that it should be admitted to probate, and that Fairy was appointed to serve as Independent Executrix without bond. That same day, Fairy received letters testamentary to serve as Independent Executrix. On September 24, the Publisher's Affidavit was filed with the trial court.
In her role as executrix, Fairy filed the inventory, appraisement and list of claims on January 14, 2009. On January 22, the trial court signed the order approving the inventory, appraisement, and list of claims.
On October 18, 2021, Eric, proceeding pro se, filed the instant suit, by which he sought to contest Hershell's will and have it set aside as a forgery because it was executed while Hershell was incapacitated, and subject to Fairy's undue influence. He further asserted that he was entitled to receive but did not receive notice of the probate proceedings due to Fairy's and her attorney's fraudulent acts. He also sought an order that the subject homestead property be sold and that he be awarded two-thirds of the value of the property amounting to $219,000.00. He further sought to recover legal fees of $1,000.00 associated with hiring a typist, as well as $2,500.00 previously paid to an attorney he alleged failed to perform legal services on his behalf other than providing him a copy of Hershell's will. Eric later amended his petition and further sought $500,000.00 in exemplary damages. Fairy filed an answer, in which she made a general denial, asserted the affirmative defense of limitations, and specifically denied that the statute of limitations was tolled.
Subsequently, Eric filed two requests for declaratory judgment that "the 2007 Version of § 128a, f (Tex. Prob. Code) as the law to be applied to the facts of this case[,]" Eric is the "lawful beneficiary to receive the 1985 Corvette" and a showing that Eric "did, in fact, take possession of the Corvette as his portion of Decedent's estate[,]" the limitations period is tolled as a result of the discovery rule or as a result of fraud, Eric lacked constructive notice of the probate proceedings, and "the statutory framework that would prevent [Eric] from ever asserting [a] claim to paternal inheritance [is] unconstitutional."
On February 7, 2022, Fairy filed a motion for summary judgment. In her motion, she argued that the statute of limitations had run for Eric's claims amounting to a will contest or breach of fiduciary duty. She further asserted that she bore no fiduciary duty to Eric, was not required to notify Eric, who was not a beneficiary under Hershell's will, of the probate proceedings, and neither had engaged in fraudulent concealment nor committed theft. Moreover, she contended that Eric's constitutional rights were not violated, the County Court of Smith County had jurisdiction to probate the will, and Eric has no right to the damages he sought. On February 14, Eric filed a response, in which he first argued that Fairy's failure to answer his discovery constituted discovery abuse. Thereafter, he made objections to Fairy's summary judgment evidence and argued that the will could be interpreted to name him as a beneficiary, who was entitled to notice of the proceedings, which he did not receive; that constructive notice should not apply, and that Fairy's and her attorney's failure to provide him notice amounted to extrinsic fraud, which served to toll the limitations period.
On March 10, the trial court conducted a hearing on the matter. On March 16, the trial court signed an order granting Fairy's motion for summary judgment on the ground that all relief sought by Eric was untimely under the applicable statutes of limitations and ordering that Eric take nothing by his suit. Eric filed a motion for new trial, which was overruled. This appeal followed.
The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c);[2] Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant who conclusively negates at least one essential element of the nonmovant's cause of action is entitled to summary judgment as to that cause of action. See Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Likewise, a defendant who conclusively establishes each element of an affirmative defense is entitled to summary judgment. Id. Once the movant establishes a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). The only question is whether an issue of material fact is presented. See Tex. R. Civ. P. 166a(c).
When reviewing summary judgments, we perform a de novo review of the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex. App.-Tyler 2008, pet. denied).
Further, all theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex. R. Civ. P. 166a(c). If the trial court's order granting summary judgment does not specify the grounds relied on for its ruling, we will affirm it if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). Thus, when an appellant fails to negate each ground on which the judgment could have been granted, we must affirm. Flores v. Hull Assocs. N., LP, 657 S.W.3d 68, 75 (Tex. App.-El Paso 2022, no pet.).
In his third issue, Eric argues that he was entitled to statutory notice of the 2008 probate proceedings and that his failure to receive such notice resulted from fraud committed by Fairy and her attorney, which fraud serves to toll the applicable limitations period.[3]
The primary purpose of statutes of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. LaGloria Oil and Gas Co. v. Carboline Co., 84 S.W.3d 228, 234 (Tex. App.-Tyler 2001, pet. denied). It is in society's best interest to grant repose by requiring that disputes be settled or barred within a reasonable time.
In his pleadings, Eric makes allegations giving rise to causes of action for a will contest, as well as fraud and breach of fiduciary duty related to Fairy's alleged failure to give him notice of the probate proceedings.[4] See Tex. Estates Code Ann. § 256.204 (West 2020) (Tex. Prob. Code Ann. § 93)[5] (providing two-year limitations period from date will admitted to probate for interested person to file will contest); see also Tex. Civ. Prac. & Rem. Code Ann. §§ 16.004(4), (5) (West 2002) (providing four-year limitations period for fraud and breach of fiduciary duty actions).
After a will is admitted to probate, an interested person may commence a suit to contest the validity thereof not later than the second anniversary of the date the will was admitted to probate, except that an interested person may commence a suit to cancel a will for forgery or other fraud not later than the second anniversary of the date the forgery or fraud was discovered. Tex. Estates Code Ann. § 256.204(a). An "interested person" includes "heirs, devisees spouses, creditors, or any others having a property right in or claim against, the estate being administered." Id. § 22.018(1) (West 2020) (Tex. Prob. Code § 3(r)). "Heir" means a person who is entitled...
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