In re Estate of Mask, No. 04-07-00667-CV (Tex. App. 7/23/2008)
| Decision Date | 23 July 2008 |
| Docket Number | No. 04-07-00667-CV.,04-07-00667-CV. |
| Parties | IN RE ESTATE OF ELLA V. MASK, Deceased. |
| Court | Texas Court of Appeals |
Appeal from the County Court, Uvalde County, Texas, Trial Court No. 6352-06, Honorable William T. McGee, Judge Presiding1.
AFFIRMED; APPELLEE'S MOTION FOR SANCTIONS DENIED.
Sitting: Alma L. LÓPEZ, Chief Justice, Phylis J. SPEEDLIN, Justice, Steven C. HILBIG, Justice.
Appellants, the non-beneficiary grandchildren of the deceased, appeal the summary judgment granted in favor of appellee, proponent of the deceased's will, contending the probate court erred by: (1) granting appellee's summary judgment; (2) making erroneous evidentiary rulings; (3) denying appellant's second motion for continuance; and (4) probating the will. We affirm the probate court's final judgment and its orders probating the will and approving the final accounting. We deny Mask's motion for sanctions.
Ronnie L. and Jimmy W. Rogers ("Ronnie and Jimmy") are the grandsons of Ella V. Mask ("Ella") and appellants in this case. During the final year of Ella's life, Ronnie and Jimmy petitioned for guardianship of Ella on January 23, February 16, and April 17, 2006. Ronnie and Jimmy were ultimately denied guardianship. Ella was hospitalized in April and executed a will on April 14, 2006, the day she was released from the hospital. Much of Ronnie and Jimmy's concern for Ella centered around contracts for the sale of Ella's real property, which they considered to be under-priced. Using a power of attorney which had been revoked by Ella during the time of the guardianship hearings, Ronnie and Jimmy deeded Ella's real property to a trust under which they were trustees of the property. On November 3, 2006, Ella testified at a hearing to remove the cloud of title on her property and also executed a codicil to the April 14, 2006 will. Ella was killed in a car accident on December 13, 2006 when she was 90 years of age.
After Ella's death, T.W. Mask ("Mask"), Ella's only surviving child and substitute executor of her estate, filed Ella's April 14, 2006 will and November 3, 2006 codicil for probate in the county court. Ronnie and Jimmy filed a will contest on December 27, 20062 and requested that the contested matter be assigned to a statutory probate judge. The contested matter was assigned to the statutory probate judge, Honorable William T. McGee on January 24, 2007.
Mask moved for both a traditional and no-evidence summary judgment on February 9, 2007. Ronnie and Jimmy's first motion for a 90-day continuance was granted on February 28, 2007. At the end of the 90-day continuance, a summary judgment hearing was held on May 31, 2007. During the hearing, Judge McGee granted the proponent and the contestants seven additional days to submit summary judgment proof. On July 6, 2007, Judge McGee granted Mask's summary judgment and denied Ronnie and Jimmy's post-hearing motion for continuance. Judge McGee signed a final order disposing of all claims on August 23, 2007, and he admitted the will to probate and approved a final accounting on August 28, 2007. Ronnie and Jimmy appeal.
We first address Ronnie and Jimmy's second issue. Ronnie and Jimmy contend the probate court erred, both, by overruling their objections to Mask's summary judgment evidence and by sustaining Mask's objections to their summary judgment evidence. We review a trial court's evidentiary rulings for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Id. We must uphold a trial court's evidentiary ruling if there is any legitimate basis for the ruling. Id. Because Jimmy and Ronnie challenge both the will and the codicil, and the proper execution of a codicil effectively republishes the associated will, we will limit our review to the evidence surrounding the execution of the codicil. See Aven v. Green, 159 Tex. 361, 320 S.W.2d 660, 661-62 (1959). If the properly admitted evidence is sufficient to prove the proper execution of the codicil without raising a fact issue, we need not review the trial court's rulings regarding evidence surrounding the execution of the will. See id.
Mask presented a DVD containing a video-recorded session during which Ella executed her November 3, 2006 codicil. According to Ronnie and Jimmy, Mask failed to properly authenticate the DVD in accordance with the Texas Rules of Evidence. We disagree.
A video recording is considered a photograph under Texas Rule of Evidence 1001. Tex. R. Evid. 1001(2). Prior to admission into evidence, Texas Rule of Evidence 901 requires the authentication or identification of a video recording to establish it is what it is claimed to be. Tex. R. Evid. 901. Proffered evidence may be authenticated by the testimony of a knowledgeable witness that an item is what it is purported to be. Id. Consequently, a video recording may be authenticated by testimony that the recording is a fair and accurate representation of the event by a knowledgeable witness. See Davidson v. Great Nat'l Life Ins. Co., 737 S.W.2d 312, 314-15 (Tex. 1987). Attorney William Kessler, who video-taped the session, authenticated the DVD in his affidavit. See id. Kessler states that it is true and correct and identifies himself as one of the speakers.3 See id. In the recording, Ella is lucid and articulate; she states she arrived at the ceremony by driving herself; she identifies the real estate she owns; she verifies her last will and identifies the witnesses to the will; she states her desire to change the will with a codicil; she acknowledges she has read and understands the codicil;4 she asks the witnesses (also identified on the DVD) to attest to the codicil; she states the codicil reflects her desires and no one is pressuring her to sign the codicil; she states no one pressured her to sign her will; she willingly signs the codicil; and she declares that the signing of the codicil is her free act and deed, rendering the DVD relevant to the will contest. Tex. R. Evid. 104. Because the DVD was authenticated and is relevant to the will contest, we conclude the probate judge did not abuse his discretion in overruling Ronnie and Jimmy's objections to the DVD. Owens-Corning Fiberglas Corp., 972 S.W.2d at 43.
Ronnie and Jimmy raise objections to every affidavit filed in support of Masks's motion for summary judgment claiming the affidavits to be unreliable, irrelevant, inaccurate, conclusory, and contradictory. We will address each argument in turn.
Ronnie and Jimmy contend attorney Kessler's affidavit "refers to documents not attached, and violates the rule precluding attorneys from appearing as witnesses in cases in which they are also counsel." See Tex. Disciplinary R. Prof'l Conduct 3.08, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005). Disciplinary rule 3.08 prohibits an attorney from appearing both as a witness and as counsel unless the attorney is a party to the action and is appearing pro se. See id. In a will contest, the rule is well established that "an attorney for the proponents . . . is not rendered incompetent to testify, especially if he drafted the will in question and if he has not been employed upon a contingent fee." In re Hardwick's Estate, 278 S.W.2d 258, 262 (Tex. Civ. App.-Amarillo 1954, writ ref'd n.r.e.); see, e.g., Wilkinson v. Moore, 623 S.W.2d 662, 664 (Tex. Civ. App.-Houston [1st Dist.] 1981, no writ) (discussing attorney's properly admitted testimony regarding his preparation of decedent's will and its execution). According to the record, Kessler offered the will and codicil for probate but did not appear as attorney of record for Mask in the will contest and was not prohibited from testifying. See Aghili v. Banks, 63 S.W.3d 812, 818 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). Although Kessler observed both the signing of the will and the codicil, "each was also witnessed by two other witnesses who . . . testified." See In re Hardwick's Estate, 278 S.W.2d at 262. Consequently, Kessler's affidavit did not provide "the controlling testimony for the client's case [and did not blur] the necessary distinction between advocate and witness on which our adversary system depends." Aghili, 63 S.W.3d at 818 (quoting Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 426 (Tex. 1996) (Phillips, C.J., joined by Spector, J., dissenting)). Furthermore, once Kessler was accused of asserting undue influence in the will contest, he became a party to the suit and could have appeared pro se and as a witness if he so desired. See Tex. Disciplinary R. Prof'l Conduct 3.08. Finally, Kessler specifically referenced six documents in his affidavit. At most, four of the six documents concern the contested matter, and all four were properly served with the summary judgment motion. Tex. R. Civ. P. 166a(c), (f);Wilson v. Burford, 904 S.W.2d 628, 629 (Tex. 1995); Gensheimer v. Kneisley, 778 S.W.2d 138, 140 (Tex. App.-Texarkana 1989, no writ).
Ronnie and Jimmy challenge the affidavits of Dr. Jamil Bitar, Dr. Laura Perches, and Dr. Lewis Christian as being unreliable, unqualified, inaccurate, contradictory, and conclusory. Ronnie and Jimmy further contend that the bases of the doctors' opinions are unreliable because the probate court did not apply the Robinson factors for scientific evidence in determining the admissibility of the opinions. See E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 556-57 (Tex. 1995). First, we note that all three doctors testified in large part to Ella's mental soundness, which is not a subject that "must be guided solely by the opinion . . . of experts." See Tex. R. Civ. P. 166a(c);FFE Transp. Servs., Inc. v....
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