In re Adkins

• Court: Texas Court of Appeals
• Writing for the Court: Memorandum Opinion by Justice Longoria
• Decision Date: 23 June 2015
• Docket Number: NUMBER 13-15-00066-CV
• Citation: In re Adkins, NUMBER 13-15-00066-CV (Tex. App. Jun 23, 2015)
• Parties: IN RE FRED ADKINS

IN RE FRED ADKINS

NUMBER 13-15-00066-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

June 23, 2015

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Benavides, Perkes, and Longoria

Memorandum Opinion by Justice Longoria¹

Relator, Fred Adkins, filed a petition for writ of mandamus in the above cause on February 9, 2015, seeking to compel the trial court to withdraw its order granting a new trial and enter judgment in Adkins's favor.² Adkins contends, in short, that the jury'sverdict in his favor was supported by factually sufficient evidence, and the trial court impermissibly substituted its judgment for that of the jury in granting a new trial. After performing a merits-based review of the trial court's order in accordance with In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 755-59 (Tex. 2013) (orig. proceeding), we deny the petition for writ of mandamus.

I. BACKGROUND

The underlying matter is a will contest regarding the issues of testamentary capacity and undue influence. Everett Hank Tingle passed away at the age of eighty-seven on February 5, 2012. His death certificate indicates he died as a result of respiratory failure, sepsis, atrial fibrillation, and hypotension. His caregiver and former son-in-law, Adkins, sought to probate a will executed by Tingle on March 20, 2006, which essentially left Tingle's property to Adkins. In contrast, Antonia Tingle, Tingle's ex-wife and Adkins' former mother-in-law, sought to probate a will executed by Tingle on December 13, 2010, leaving his property to her. Tingle, a frugal man, left a substantial estate.

After a four-day jury trial, the jury rendered a verdict finding that: (1) Tingle did not have testamentary capacity to sign the will dated December 13, 2010; (2) Tingle signed the will dated December 13, 2010 as a result of undue influence; (3) Antonia did not prosecute the proceeding to probate the December 13, 2010 will in good faith and with just cause; and (4) Antonia incurred $65,000 for "necessary expenses and disbursements," including attorney's fees, incurred in prosecuting the proceeding to probate the will. On December 30, 2013, the trial court entered a final judgment in favor of Adkins in accordance with the jury's verdict denying Antonia's application to probatethe December 13, 2010 will, rendering judgment in favor of Adkins, and denying Antonia any award for the expenses and attorney's fees she incurred in attempting to probate the 2010 will.

On January 22, 2014, Antonia filed a motion for judgment notwithstanding the verdict, or alternatively, motion for new trial. According to Antonia's motion, the "jury reached a decision based . . . more on its subjective view of justice, as opposed to the underlying facts." On February 20, 2014, Adkins filed a response to Antonia's motion for new trial. On February 25, 2014, the trial court held a non-evidentiary hearing on Antonia's motion and set the motion for submission on March 13, 2014. On March 13, 2014, the trial court granted Antonia's motion for a new trial. The trial court's order granting Antonia's motion for new trial provides as follows:

On March 13, 2014, the Court considered the Motion for a New Trial filed by Antonia Tingle, the response thereto, and the evidence adduced at the hearing,³ and enters the following findings:

1. As to jury issue No. 1 regarding testamentary capacity, the jury's verdict is against the great weight and preponderance of the credible evidence. The evidence from the witnesses showed overwhelmingly that Everett Hank Tingle possessed testamentary capacity at the time of the execution of the will dated December 13, 2010.

2. As to jury issue No. 2 regarding undue influence, the jury's verdict is against the great weight and preponderance of the credible evidence. There was insufficient evidence to show that Everett Hank Tingle signed the will dated December 13, 2010, as the result of undue influence. The evidence only indicated mere speculation or a bare suspicion that undue influence had been exercised.

3. As to jury issue No. 3, regarding good faith of proponent Antonia Tingle, the jury's verdict is against the great weight and preponderance of the credible evidence. There was no evidence presented to show that Antonia Tingle did not prosecute the probate of the will in good faith.

4. As to jury issue No. 4, if jury issue No.4 derives from Jury Issue No.3, if jury issue No. 3 is against the great weight and preponderance of evidence, then the answer to Jury Issue No. 4 is manifestly unjust.

IT IS ORDERED THAT Plaintiff's Motion for a New Trial is GRANTED based on the findings herein and in the interest of justice.

Adkins sought review of the order granting a new trial by petition for writ of mandamus filed in this Court. See In re Adkins, No. 13-14-00484-CV, 2014 WL 5026051, at **1-6 (Tex. App.—Corpus Christi Oct. 8, 2014, orig. proceeding) (mem. op.). We held that, while the order granting the new trial was supported by legally appropriate reasons and included some analysis regarding the sufficiency of the evidence, the order was insufficiently specific to meet the rigorous and detailed standards articulated by the Texas Supreme Court. See id. at *1 (citing In re United Scaffolding, Inc., 377 S.W.3d 685, 688-89 (Tex. 2012) (orig. proceeding); In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 212 (Tex. 2009) (orig. proceeding)).

Subsequently, the trial court issued an amended order granting a new trial on November 7, 2014. The amended order states in relevant part:

On March 27, 2012, Antonia Gutierrez Tingle ("Antonia") filed her application to probate the Last Will and Testament of her ex-husband, Everett "Hank" Tingle, dated December 13, 2010. Fred Adkins ("Adkins"), a former caregiver to Everett Tingle filed a competing application for the probate of a copy of a previous will dated March 20, 2006, the original of which was never produced. Adkins contended that Mr. Tingle did not possess mental capacity to execute the 2010 will and/or that Mr. Tingle was unduly influenced to make the 2010 will.

. . . .

Pursuant to the Court of Appeals' opinion, the Court hereby amends its order granting a new trial to state that a new trial is ordered for the following reasons:

JURY ISSUE NO. 1: TESTAMENTARY CAPACITY.

In Issue Number 1, the jury was asked if Everett Tingle had testamentary capacity when he signed the December 13, 2010, will, to which the jury answered: "No." As that will had not been admitted to probate, and in accordance with Texas law, the burden of proof to obtain an affirmative finding under Issue No. 1 was on the proponent of that will, Antonia Gutierrez Tingle. When a party seeks a new trial by challenging the factual sufficiency of the evidence regarding an adverse finding on an issue on which he has the burden of proof, he/she must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. The Court must consider and weigh all of the evidence and can set aside a verdict only if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. In determining whether a finding is against the great weight and preponderance of the evidence, the court must consider and weigh all of the evidence, both the evidence that tends to prove the existence of a vital fact as well as the evidence that tends to disprove its existence.

Applying the foregoing standard of review, this Court finds that the jury's negative answer to Issue No. 1, that is, the jury's failure to find that Everett Tingle had testamentary capacity when he signed the December 13, 2010, will was against the great weight and preponderance of the evidence, and therefore must be set aside.

The evidence from the witnesses showed overwhelmingly that Everett "Hank" Tingle possessed testamentary capacity at the time of the execution of the will dated December 13, 2010. The testimony of witnesses revealed that on December 13, 2010, Mr. Tingle drove himself to Falcon National Bank located in McAllen, Texas, for the sole purpose of executing a new will, and revoking all prior wills. Mr. Tingle, a customer of Falcon National Bank since 2006, requested that Leticia Echazarreta, the Branch President, prepare his new will. Mrs. Echazarreta had handled all of Mr. Tingle's financial affairs for the four years preceding the execution of his 2010 will. Mr. Tingle had previously telephoned Mrs. Echazarreta to schedule an appointment for the preparation of his will. Mrs. Echazarreta informed Mr. Tingle she could not prepare his will, but could notarize whatever document he needed. Mr. Tingle then went to the bank requesting to speak with Mrs. Echazarreta.

The two exchanged conversation, and Mr. Tingle ultimately persuaded Mrs. Echazarreta to draft his will. Mrs. Echazarreta prepared the will and requested Esmer Medina, her co-worker, to be present to witness Mr. Tingle['s] signing of the will. During the course of the trial, the Court heard from the two witnesses to the 2010 will. Both witnesses testified that Mr. Tingle did not appear to be suffering from any mentalimpairment and that he understood that he was executing a new will. Both Mrs. Echazarreta and Ms. Ester Medina recounted knowing a smart, business savvy individual able to remember exactly how much money was in his bank account at any given moment. During the course of the trial, this Court ruled that February 3, 2010, was not relevant in determining Tingle's mental capacity as Dr. George had testified, because the relevant time to determine testamentary capacity was the time of the execution of the will. Adkins claimed that Mr. Tingle was incapacitated on February 3, 2010, yet he regained his mental capacity on July 7, 2010, just in time to sign an affidavit of non-prosecution relieving Relator of any criminal liabilities for the theft of Mr. Tingle's property.

This Court finds that the evidence from the witnesses

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