Davis v. Cook

• Decision Date: 10 November 1999
• Docket Number: No. 04-98-00950-CV,04-98-00950-CV
• Citation: 9 S.W.3d 288
• Parties: (Tex.App.-San Antonio 1999) In Re Estate of Estha Cartwright DAVIS a/k/a Estha H. Davis, Deceased Roscoe Cartwright, Janet D. Delape, Wade Cartwright, and Barbara Beagle, Appellants v. Robert B. COOK, Schreiner College, First United Methodist Church of Kerrville, Hill Country Youth Ranch, and The Attorney General of the State of Texas, Appellees
• Court: Texas Court of Appeals

Page 288

9 S.W.3d 288 (Tex.App.-San Antonio 1999)

In Re Estate of Estha Cartwright DAVIS a/k/a Estha H. Davis, Deceased Roscoe

Cartwright, Janet D. Delape, Wade Cartwright, and Barbara Beagle, Appellants v. Robert B. COOK, Schreiner College, First United Methodist Church of Kerrville, Hill Country Youth Ranch, and The Attorney General of the State of Texas, Appellees

No. 04-98-00950-CV

In the Fourth Court of Appeals San Antonio

November 10, 1999

From the County Court at Law, Kerr County, Texas

Trial Court No. 16176

Honorable Robert A. Denson, Judge Presiding

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Sitting: Catherine Stone, Justice; Paul W. Green, Justice; Sarah B. Duncan, Justice

Opinion by: Catherine Stone, Justice

This summary judgment appeal arises from a will contest surrounding the disposition of Estha Cartwright Davis' estate, worth close to three million dollars. In multiple issues, the will contestants bring three general complaints on appeal: a) propriety of the no-evidence summary judgment; b) award of attorney's fees; and c) order of sanctions.

Factual and Procedural Background

At the age of ninety-nine, Estha Davis (hereinafter "Estha") executed the will at issue in 1995. The will provisions made the following distributions: (1) $1,000,000 to Ruth Cook ("Ruth"); (2) $100,000 to Robert B. Cook ("Cook"); (3) $25,000 to Hill Country Youth Ranch; (4) $75,000 to First United Methodist Church ("First Methodist"); (5) $2,000 to Anita Grona, Estha's long-time housekeeper; and (6) the residuary estate of nearly $2,000,000 to Schreiner College ("Schreiner"). Seven months later, Estha executed a codicil which allocated 2,400 shares of Brown Stock (a family shoe business in Kerrville) to Ruth Cook and a promissory note to Robert B. Cook.

Will beneficiary Ruth Cook married Estha's only child L.T., who died in 1945, three years after the marriage. Despite Ruth's later re-marriage, she remained in contact with Estha, visiting her several times a year. Beneficiary Robert Cook was one of Ruth's three children from the second marriage. Cook also maintained contact with Estha, visiting her about once a year during the last ten years of her life. Estha named Cook as the administrator in her will. Estha's deceased son L.T. attended Schreiner College, one of the charitable beneficiaries.

Estha died in Kerrville, Texas, on July 10, 1997. Challenging the probate of Estha's will on the grounds of undue influence, Estha's nieces and nephews ("contestants") filed a will contest on September 4, 1997. Cook soon filed a no-evidence summary judgment alleging that he defended the will and codicil in good-faith and no evidence of undue influence existed. Additionally, the charitable beneficiaries (Schreiner and First Methodist) moved for summary judgment on the same grounds. The Attorney General intervened in the suit on February 23, 1998, pursuant to Section 123.002 of the Texas Property Code, which provides that the Attorney General is a proper party and may intervene in proceedings involving a charitable trust. Tex. Prop. Code Ann. 123.002 (Vernon 1995). The Attorney General later filed a no-evidence motion for summary judgment against the contestants. Following the grant of several continuances to allow the contestants adequate time for discovery, the trial court conducted a summary judgment hearing on October 9, 1998. Finding no evidence of undue influence, the court entered an order on October 20,1998, granting summary judgment in favor of the will beneficiaries and ruling that the beneficiaries recover their necessary expenses and reasonable attorney's fees out of the estate. On November 4th and 13th 1998, respectively, the Attorney General and the charitable beneficiaries filed motions for sanctions arguing that the contestants brought the will contest in bad faith for the purpose of harassment. Despite the contestants' challenge to the trial court's jurisdiction, on December 29, 1998, the court granted the motions and entered an order modifying the original summary judgment to reflect an order of sanctions.

Summary Judgment.

Standard of Review

Turning to the first issue on appeal, we examine the propriety of the no-evidence summary judgment granted in favor of the will beneficiaries. A no-evidence summary judgment is essentially a pre-trial directed verdict. Moore v. Kmart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet. denied). We review the evidence in the light most favorable to the respondent against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Moore, 981 S.W.2d at 269. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. Kindred v. Con/Chem Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Havner, 953 S.W.2d at 711.

At the outset, the contestants allege that a no-evidence summary judgment under Tex. R.Civ. P. 166a(i) is improper in the context of a will contest because of the fact-intensive inquiry involved. However, numerous cases exist where courts have utilized directed verdicts, summary judgments, and motions for j.n.o.v. in the context of will contests.¹ We recognize that neither the language nor the instructive commentary of Rule 166a(i) limits the type of case to which the rule applies.

The contestants also urge that the beneficiaries failed to bring forth evidence in support of their no-evidence motions. However, the contestants misconstrue the burden of proof set forth in Rule 166a(i). The rule requires only that the summary judgment motion state the elements of which no evidence exists. Tex.R.Civ.P. 166a(i). Here, the beneficiaries complied with the requirements of the rule by listing the elements of which contestants failed to show undue influence.

2. Undue Influence

Rothermel v. Duncan, 369 S.W.2d 917, 919 (Tex. 1963), the seminal Texas will contest case, established a three-part test to determine whether undue influence exists in will executions. To prevail on a claim of undue influence, a will contestant must establish: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. Id. at 922. The burden of proving undue influence is upon the party contesting its execution. Id. It is necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above stated elements of undue influence. Id. (emphasis added). Further, it cannot be said that every influence exerted by one person on the will of another is undue, for the influence is not undue unless the free agency of the testator wasdestroyed and a testament produced that expresses the will of the one exerting the influence. Id.

Undue influence may be shown by direct or circumstantial evidence, but will usually be established by the latter. Green, 840 S.W.2d at 121. When circumstantial evidence is relied upon, the circumstances must be so strong and convincing and of such probative force as to lead a well-guarded mind to a reasonable conclusion not only that undue influence was exercised, but that it controlled the will power of the testator at the precise time the will was executed. Id. Circumstances relied on as establishing the elements of undue influence must be of a reasonably satisfactory and convincing character, and they must not be equally consistent with the absence of the exercise of such influence. Mackie v. McKenzie, 900 S.W.2d 445, 450 (Tex. App.-Texarkana 1995, writ denied); Garza v. Garza, 390 S.W.2d 45, 47 (Tex. Civ. App.-San Antonio1965, writ ref'd n.r.e.). This is so because a solemn testament executed under the formalities required by law by one mentally capable of executing it should not be set aside upon a bare suspicion of wrongdoing. Garza, 390 S.W.2d at 47.

A. Existence & Exertion of an Influence

Addressing the first prong of Rothermel, contestants allege that Cook and Schreiner were actively involved in the planning and preparation of Estha's will. Contestants argue that an inference of undue influence exists because there were no significant inter vivos gifts to family members prior to these beneficiaries' contact with Estha. Specifically, contestants point out that immediately after Estha's transmittal of tax information to Cook, who is also a lawyer, Estha gave large cash gifts to Cook's family up until the execution of the will. Although Ruth is not named as a party in the suit, contestants point to Ruth's presence and gifts of a bible and wheelchair to Estha from Ruth and Cook shortly before the execution of the will and codicil as evidence of some influence. As to Schreiner, contestants allege that the visits from the college development officer beginning in 1994 constituted an undue influence over Estha who was 98 years old at the time, lonely, isolated, and plagued with physical infirmities. See Green, 840 S.W.2d at 122 (recognizing that factors such as physical and mental condition of the maker of the instrument at the time of its execution, including age, any weakness or infirmity are probative evidence of undue influence); but see Garza, 390 S.W.2d at 47 (acknowledging that in the absence of facts showing a weak mind, no evidence existed that the seventy-seven year old testator succumbed to undue influence). Contes...