In re Estate

• Decision Date: 23 January 2020
• Docket Number: No. 06-19-00039-CV,06-19-00039-CV
• Citation: 595 S.W.3d 807
• Parties: ESTATE OF Henry Ezekiel "Zeke" GROGAN, Deceased
• Court: Texas Court of Appeals

595 S.W.3d 807

ESTATE OF Henry Ezekiel "Zeke" GROGAN, Deceased

No. 06-19-00039-CV

Court of Appeals of Texas, Texarkana.

Date Submitted: December 3, 2019

Date Decided: January 23, 2020

Mariah Hornok, Jennifer H. Doan, Texarkana, R. Dyann McCully, David C. Bakutis, Donald R. Ross, Darby V. Doan, Haltom & Doan, Texarkana, Kory W. Nelson, The Blum Firm, PC, Beth Hampton, for Appellant.

Matthew C. Harris, Longview, Courtney Harris, Daingerfield, for Appellee Grogan, George.

Justin Kurt Truelove, Truelove Law Firm, PLLC, Marshall, Amy Miller, Bradley R. Echols, Darren K. Coleman, Boon Calk, Echols, Coleman & Goolsby, PLLC, Longview, Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for Appellee Carpenter, Linda.

Before Morriss, C.J., Burgess and Carter,^* JJ.

OPINION

Opinion by Chief Justice Morriss

Although—when eighty-three-year-old Henry Ezekiel "Zeke" Grogan lost his battle with cancer and died in 2018—Zeke was single and had no lineal descendants, he was "lifetime companion" to Linda Carpenter, with whom he had lived for decades after the two had formed a long-time, close working relationship in his dental practice. Probated was Zeke's 2010 lawyer-drawn will that left essentially all of Zeke's assets to Linda, and none to Zeke's siblings, George and William, or to their descendants. Zeke's surviving brothers separately contested the 2010 will. This appeal involves William's contest¹ and comes from a summary judgment upholding the probate in Linda's favor.²

In granting Linda's motion for summary judgment, the trial court found that there was no evidence that the 2010 will was the result of undue influence exerted by Linda on Zeke, that there was no evidence of a will or testamentary instrument executed by Zeke after the 2010 will, and that the 2010 will was executed without undue influence and was not subsequently revoked.

William argues on appeal that Linda's summary judgment was improper because he had raised fact issues regarding whether Linda had unduly influenced Zeke to execute the 2010 will and whether it had been later revoked and because his request for a continuance to conduct further discovery was improperly denied. We affirm the trial court's judgment, because (1) the summary-judgment evidence raised no fact issue regarding undue influence, (2) the summary-judgment evidence raised no fact issue regarding revocation, and (3) denying William's requested continuance to conduct further discovery was within the trial court's discretion.

(1) The Summary-Judgment Evidence Raised No Fact Issue Regarding Undue Influence

A summary judgment in a will contest is reviewed as in any other case, using a de novo standard of review. In re Estate of Fisher , No. 06-14-00029-CV, 2014 WL 5465869, at *1 (Tex. App.—Texarkana Oct. 29, 2014, no pet.) (mem. op.) (citing Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003) ). In such a review, all evidence favorable to the nonmovant is assumed true, along with every reasonable inference to be drawn from the evidence, with any doubts resolved against the summary judgment. City of Wolfe City v. Am. Safety Cas. Ins. Co. , 557 S.W.3d 699, 702 (Tex. App.—Texarkana 2018, pet. denied) (citing Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005) ). When both traditional and no-evidence summary judgments are reviewed, we look first at the no-evidence motion. Id. (quoting First United Pentecostal Church of Beaumont, d/b/a The Anchor of Beaumont v. Parker , 514 S.W.3d 214, 219 (Tex. 2017) (citing Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004) )).

If a motion for summary judgment claims that there is no evidence supporting any element of a claim or defense on which the nonmovant bears the burden of proof at trial, we look to see if the nonmoving party has presented evidence raising a genuine issue of material fact on the element or elements in question. TEX. R. CIV. P. 166a(i) ; Fisher , 2014 WL 5465869, at *1 (citing Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006)) ; Sudan v. Sudan , 199 S.W.3d 291, 292 (Tex. 2006). If our review of the no-evidence motion demonstrates the lack of necessary evidence supporting the claim, we need not address the traditional motion for summary judgment. City of Wolfe City , 557 S.W.3d at 702 (quoting Parker , 514 S.W.3d at 219 ).

Since a no-evidence summary judgment is effectively a pretrial directed verdict, we use the directed-verdict standard of review in reviewing such a summary judgment. Id. at 702–03 (citing Wal-Mart Stores, Inc. v. Rodriguez , 92 S.W.3d 502, 506 (Tex. 2002) ). Our task boils down to determining whether the claimant "produced any evidence of probative force to raise a fact issue on the material questions presented." Id. (quoting Woodruff v. Wright , 51 S.W.3d 727, 734 (Tex. App.—Texarkana 2001, pet. denied) ).

A no-evidence summary judgment motion fails if there is "more than a scintilla of probative evidence on each element" of the claim. Id. at 703 (citing King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003) ; Rhine v. Priority One Ins. Co. , 411 S.W.3d 651, 657 (Tex. App.—Texarkana 2013, no pet.) ). "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.’ " Fisher , 2014 WL 5465869, at *1 (quoting King Ranch , 118 S.W.3d at 751 ). The evidence, however, fails to reach that threshold if "it is ‘so weak as to do no more than create a mere surmise or suspicion’ of fact." Id. (quoting King Ranch , 118 S.W.3d at 751 ).

We first address William's argument that a fact issue on his claim of undue influence made a summary judgment unavailable. To show undue influence, a will "contestant must prove ‘(1) the existence and exertion of an influence (2) that subverted or overpowered the mind of the testator at the time of execution of the instrument (3) so that the testator executed an instrument he or she would not otherwise have executed but for such influence.’ " Id. at *2 (quoting In re Estate of Steed , 152 S.W.3d 797, 807 (Tex. App.—Texarkana 2004, pet. denied) ). Here, William bore the burden of proving undue influence at trial and was "required to ‘introduce some tangible and satisfactory proof of the existence of each of the above[-]stated elements of undue influence’ to survive [the] no-evidence challenge." Id. (citing Rothermel v. Duncan , 369 S.W.2d 917, 922 (Tex. 1963) ).

The summary judgment evidence showed that Zeke's relationship with his brothers was strained. George testified that they practiced dentistry together until a fight in the office caused a breakup in the brothers' professional and personal relationships in 1979. George admitted that he strangled William in the office and would have killed him had Zeke not intervened. George testified that he never spoke to William again after the fight and had no connection with Zeke for a long time. George never spoke to Zeke's ex-wife and was not invited to their wedding. William testified that he did not have close contact with either brother and that both George and Zeke had told him to stay out of their business. William did not even know where Zeke lived.

In contrast, the evidence showed that Zeke and Linda had a close relationship for thirty years. Zeke and Linda met while attending church in 1987, formally began dating in February 1998, and lived together as "lifetime companions." Linda testified that she and Zeke loved each other and that Zeke loved her children from a prior marriage, including her son, Ryan Carpenter. In 1995, without Linda's knowledge, Zeke executed a holographic will leaving William and George $1.00 each and everything else to Linda. The 1995 will provided that Ryan would be the sole contingent beneficiary in the event Linda predeceased Zeke. Linda testified that she did not read the 1995 will, but that Zeke handed it to her for safekeeping and informed her that she was the beneficiary and her children were contingent beneficiaries.

In 2010, Zeke told Linda that he was going to obtain a "lawyer-drawn-up" will. Before the appointment with his lawyer, James Powers Branch, Zeke asked Linda to copy notes he had written for the attorney, word for word, so it would be in better handwriting. Linda testified that she copied Zeke's notes as asked. The notes, produced by Branch from his files, stated, among other things, that Linda should be the "Sole Beneficiary," that Ryan would be the contingent beneficiary, and that Zeke "want[ed] to disinherit [his] brothers, George Gram & William W. Grogan; [his] niece Stephanie Grogan Payne & her daughters Phoebe & Oliva Payne as well as any cousins or other relatives."

Branch's affidavit explained the circumstances surrounding the drafting and execution of the 2010 will. Branch swore that he met alone with Zeke on December 8, 2010. According to Branch, Zeke brought a copy of the 1995 will and said he wanted to leave everything to Linda, to make Ryan the contingent beneficiary, and to disinherit his brothers. Branch's December 8, 2010, "MEMO TO FILE" on Zeke said, "He wants to leave everything to Linda L. Carpenter if she survives him. If she does not survive him, it goes to Ryan P. Carpenter." Zeke also requested that Branch prepare documents giving Linda statutory power of attorney in the event of disability or incapacity and medical power of attorney. Branch stated, "I found Zeke to be decisive and strong-willed. He knew exactly what he wanted." As a result, Branch prepared the documents in accordance with Zeke's instructions.

Branch said that Zeke returned to the office alone to execute the documents on December 16, 2010. During the signing, Branch stated that the only people in the room were Branch; his employee, Valerie Wilds; and Margaret H. Harbstreit, "a bookkeeper for Ron Dunbar." Branch stated that the 2010 will was executed with the formalities of Texas law and that Zeke was of sound mind, had testamentary capacity, and ...