In re Estate of Schiwetz

• Decision Date: 27 March 2003
• Docket Number: No. 13-01-00109-CV.,13-01-00109-CV.
• Citation: 102 S.W.3d 355
• Parties: In re ESTATE OF Dorothy Jane SCHIWETZ, Deceased.
• Court: Texas Court of Appeals

102 S.W.3d 355

In re ESTATE OF Dorothy Jane SCHIWETZ, Deceased.

No. 13-01-00109-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

March 27, 2003.

Rehearing Overruled May 1, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Errol John Dietze, Dietze & Reese, Attorney At Law, Cuero, Leslie Werner De Soliz, Brown & Associates, Victoria, Raymond H. Reese, DeWitt County Attorney, Cuero, for Appellant.

Christopher M. Crain, Attorney At Law, Cynthia T. Sheppard, Attorney At Law, Michael A. Sheppard, District Attorney, Cuero, Sue Culpepper Ortman, Attorney At Law, Gonzales, for Appellee.

Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.

OPINION

Opinion by Justice FEDERICO G. HINOJOSA.

Appellant, Nina Schrade Sievers, appeals from the trial court's summary judgment denying her application to probate four writings purported to be codicils to the will of Dorothy Jane Schiwetz, deceased. Appellant, the proponent of the four writings, challenges the summary judgment by thirteen issues. In a single issue, appellees, Edward Roeder and Donna Roeder ("the Roeders"), cross-appeal from the trial court's declaratory judgment that appellant's offering of the four writings did not trigger the forfeiture provision in Schiwetz's Will. We affirm.

A. BACKGROUND AND PROCEDURAL HISTORY

Dorothy Jane Schiwetz ("Decedent") died on February 4, 1999, leaving a duly executed will dated December 8, 1992 ("the Will"). The independent executor, Ilene Gohmert, filed the Will for probate in DeWitt County Court in Cause No. 9737. Appellant subsequently filed an application to probate the four alleged codicils in Cause No. 9738.¹ The Roeders contested the probate of the alleged codicils. The Roeders asserted the proffered codicils were invalid because they were not executed by Schiwetz with the present intent to create a revocable disposition of her property.

After the cases were transferred to the district court of DeWitt County, the cross-appellees, Nina Schrade Sievers, Susan Schrade Humphries, and two minor children, Emily Louise Sievers and Matthew Sievers (represented by their next of kin, Nina Schrade Sievers), asked the court to issue a declaratory judgment that the offering of the alleged codicils for probate did not constitute a contest to the Will and thus, did not trigger the forfeiture provision of the Will. The Roeders responded with a counterclaim for attorney's fees and a declaratory judgment that the filing of the alleged codicils triggered the forfeiture provision of the Will. On September 1, 2000, the trial court signed a declaratory judgment, declaring "that the offering for probate of the instruments offered in Cause No. 9738 by [cross-appellees] does not effectuate the provisions of paragraph 20 of the Last Will and Testament of Dorothy Jane Schiwetz regardless of whether said instruments are admitted to probate."

The Roeders filed a motion for summary judgment on both "traditional" and "no-evidence" grounds, and the trial court granted the motion. Appellant filed a "Motion for New Trial and for Severance," asserting that the summary judgment was not final because it did not dispose of all parties and issues. The Roeders nonsuited their counterclaim, and the trial court signed an Amended Final Judgment on January 26, 2001. The amended judgment incorporates the previously granted declaratory judgment, the Roeders' nonsuit of their counterclaims, and the summary judgment.

B. MOTION FOR SUMMARY JUDGMENT

The Roeders'"traditional" and "no-evidence" motion for summary judgment contended that: (1) as a matter of law the alleged codicils are not testamentary documents; (2) there is no evidence that: (a) appellant is an individual interested in the estate, (b) the alleged codicils were duly executed, (c) the alleged codicils were holographic, and (d) the alleged codicils were never revoked by Decedent; and (3) there is no evidence of the contents of the original document or date of creation of one of the alleged codicils.

Appellant filed a response, asserting that the four writings meet the requirements of the Texas Probate Code for valid codicils to a will. Appellant attached the following summary judgment evidence to her response: (1) a copy of the Last Will and Testament of Dorothy Jane Schiwetz; (2) her own affidavit, stating that she is named in the Will, is familiar with Schiwetz's handwriting, and that all the alleged codicils are wholly in the handwriting of the Decedent; (3) the affidavit of W.C. Kleine, III, stating that he is familiar with Schiwetz's handwriting and that the four alleged codicils are wholly in the handwriting of the Decedent; (4) the affidavit of funeral home director Stanley Johnson, stating that he discussed changes to the Will with Schiwetz before her death, and during one of these discussions Schiwetz handed him a copy of Exhibit "A" with instructions to "turn it over to Ilene Gobmert or to the Gonzales lawyer [Sue Ortman] should something happen to her;" (5) the affidavit of L. Geary Taylor, a business man who had previously inquired about purchasing Schiwetz's real property, stating that the Decedent had told him she was giving the property to "Gertrude's girls"; (6) the affidavit of the independent executor, Ilene Gohmert, that Exhibit "A" was found in the bedroom of the Decedent; and (7) a copy of the Last Will and Testament of Dorothy Jane Schiwetz, with alterations and interlineations consistent with the language of the alleged codicils. The Roeders objected to each of the five affidavits proffered by appellant.

The trial court granted summary judgment on the following grounds: (1) all four alleged codicils lack "animus testandi"; (2) there is no evidence of testamentary intent with regard to any of the four alleged codicils; (3) as to Exhibits "B," "C," and "D," there is no evidence that appellant is an individual interested in the Decedent's estate; (4) there is no evidence that Exhibits "A" and "D" were duly executed; (5) there is no evidence that Exhibit "A" is holographic; (6) Exhibit "A" is not an original document; (7) there is no evidence of the contents of the original of Exhibit "A"; (8) there is no evidence of the date that Exhibit "A" was created; and (9) Exhibit "A" is incomplete.

C. ISSUES PRESENTED

Appellant challenges the summary judgment by thirteen issues. In her first issue, appellant contends the trial court erred by implicitly sustaining the Roeders' objections to her summary judgment evidence. Appellant's second through eleventh issues contend the trial court improperly granted summary judgment on the grounds specifically stated in the order granting the motion. Appellant's twelfth and thirteenth issues generally challenge the trial court's order granting the motion for summary judgment. Because the remaining issues largely depend upon the first issue, we begin by first addressing the Roeders' objections to appellant's summary judgment evidence.

D. ADMISSIBILITY OF SUMMARY JUDGMENT EVIDENCE

In support of her response to the motion for summary judgment, appellant attached five affidavits, including her own, as summary judgment evidence. The Roeders filed objections to the affidavits, asserting they were inadmissible extrinsic evidence, inadmissible hearsay, or made by incompetent or interested witnesses. The record, however, does not show that the Roeders sought a ruling on these objections.

The Roeders had the burden to preserve any error of the trial court in ruling on their objections by obtaining a written order on the ruling. See Jones v. Ray Ins. Agency, 59 S.W.3d 739, 753 (Tex. App.-Corpus Christi 2001, pet. denied). There is no written order sustaining the Roeders' objections to appellant's summary judgment evidence. The failure to obtain written rulings on objections to summary judgment evidence waives the issue, unless the record reflects an implicit ruling by the trial court. Id. at 752-53; see TEX.R.APP. P. 33.1(a)(2)(A) (trial court must either expressly or implicitly rule on an objection in order for a complaint to be preserved for our review). For there to be an "implicit" ruling as intended by rule 33.1(a)(2)(A), there must be something in the summary judgment order or the record to indicate that the trial court ruled on the objections, other than the mere granting of the motion for summary judgment. Jones, 59 S.W.3d at 753.

We find no evidence in the record that the trial court implicitly ruled on the Roeders' objections to appellant's summary judgment proof. The trial court's order granting the Roeders' motion for summary judgment simply states that the court considered the motion, appellant's response to the motion, and the arguments of counsel. It says nothing about the affidavit evidence. Other than the granting of the motion for summary judgment, nothing in the record leads us to conclude that the trial court ruled on the Roeders' objections. Without something in the summary judgment order or the record to indicate that the trial court ruled on the objections, we cannot conclude that the trial court implicitly sustained the Roeders' objections to appellant's summary judgment evidence. Therefore, we hold that the evidence remains a part of the summary judgment record. See id.; Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562, 567 (Tex.App.-Texarkana 2000, pet. denied); Castillo v. Tropical Tex. Ctr. for Mental Health & Mental Retardation, 962 S.W.2d 622, 625 (Tex.App.-Corpus Christi 1997, no pet.). Appellant's first issue is overruled.

E. STANDARD OF REVIEW FOR TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

We review the granting of a traditional motion for summary judgment de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Tex. Commerce Bank-Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex.App.-Corpus Christi 2000, pet. denied). In a traditional motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that he is...