In re Estate of Robinson

• Decision Date: 24 June 2004
• Docket Number: No. 13-02-350-CV.,13-02-350-CV.
• Citation: 140 S.W.3d 782
• Parties: In re The ESTATE OF Velma Lee ROBINSON, Deceased.
• Court: Texas Court of Appeals

140 S.W.3d 782

In re The ESTATE OF Velma Lee ROBINSON, Deceased.

No. 13-02-350-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

June 24, 2004.

Appeal from the County Court of Jackson County, John A. Hutchison, III, J Daniel McNeel Lane, Jr., Jo Beth Eubanks, Akin, Gump, Strauss, Hauer & Feld, Rex S. Heinke, Akin Gump Strauss Hauer & Feld, Los Angeles, CA, for Appellant.

James J. Hartnett, Sr., James J. Hartnett Jr., R. Kevin Spencer, Will Ford Hartnett, Hartnett Law Firm, Dallas, Robert E. Bell, Larkin Thedford, Edna, for appellees.

Before Justices RODRIGUEZ, CASTILLO, and WITTIG.¹

OPINION

Opinion by Justice RODRIGUEZ.

This is a will contest. Appellees, Velma Lee and John Harvey Robinson Charitable Foundation (Foundation), Fannie Merle Welch, Elaine Moore, Bobbie Byrom, Jerry Guffey, Mary H. Thedford² and, alternatively, Joe Webb and M.H. "Buddy" Brock, both as directors of the Foundation, contested the probate of a will executed by Robinson in 1995 (1995 Will) in favor of a will she executed in 1983 (1983 Will). Appellees alleged that Velma Lee Robinson lacked testamentary and mental capacity and was unduly influenced. A jury found that Robinson lacked testamentary capacity to execute the 1995 Will and lacked mental capacity to execute numerous estate-planning documents. It also found that Robinson had been unduly influenced. The jury returned a verdict in favor of appellees. Based on the jury's findings, the trial court entered a judgment vacating its order that admitted the 1995 Will to probate. The trial court also set aside related estate-planning documents.

By nine issues, appellants, Anna Marie Ayers and Derace Lee Ayers, Robinson's sister and nephew, respectively, who had been appointed co-independent executors of the Robinson estate and co-trustees of the Robinson living trust under the 1995 Will, complain of the following: (1) admission of expert witness testimony; (2) sufficiency of the evidence to support findings of lack of testamentary or mental capacity, undue influence, and agency; (3) joinder of the Foundation; (4) exclusion of evidence regarding the dissolution and revival of the Foundation; (5) charge error; and (6) failure to dismiss claims allegedly barred by limitations. We affirm.

I. Factual Background

Robinson's estate consisted primarily of her Jackson County ranch. Robinson had several foster children, but no biological children of her own.³ Robinson was active in her church and gave generously during her life to numerous charities, including the San Marcos Baptist Academy (SMBA) and the South Texas Children's Home (STCH).

In 1980 Robinson executed a will (1980 Will) leaving most of her estate to the SMBA and the STCH. The 1980 Will also provided sizable bequests to family members and close friends. In June 1983, Robinson executed a handwritten will removing SMBA as a beneficiary. On October 28, 1983, Robinson executed the 1983 Will.⁴ In that will she left the majority of her estate to the Foundation.⁵ The 1983 Will also left large bequests to the Pooles and the Wootans, Robinson's good friends and long-time ranch managers; lifetime incomes to her sister Anna and her brother Cliff, who predeceased Robinson; and cash bequests to her nieces, nephews, and friends. However, the 1983 Will again excluded SMBA and, this time, removed STCH as a beneficiary. Robinson continued, however, to make gifts to SMBA and STCH as well as other charities, to her friends, and to members of her family. She also continued to fund the Foundation and direct to whom its annual gifts were to be given.

In 1994, however, Robinson stopped funding the Foundation. On February 25, 1995, Robinson signed a second codicil to her 1983 Will. This codicil reduced the gifts to her foster daughters and named Anna and Derace Ayers and Walton Donald Cavitt, another nephew, as independent co-executors. Her assets still went to the Foundation. Also in February 1995, Robinson signed a remove/replace resolution, apparently to remove the directors of the Foundation, including Thedford and B.J. Taylor, and replace them with Anna and Derace Ayers, and Cavitt.

On August 14, 1995, Robinson executed estate-planning documents wherein the estate would be divided upon her death among her relatives, primarily her nieces and nephews, not among her charities. These interests would pass through the 1995 Will, a pour-over will. Under this will, Robinson's sister, Anna Ayers, received the same bequest as under the 1983 Will. Anna and Derace Ayers were named as independent co-executors of the 1995 Will. During the summer of 1996, without being informed she had been removed as a director, Thedford was asked to distribute all funds remaining in the Foundation.

In May 1996, nine months after she executed her 1995 Will, Robinson suffered a stroke. She suffered a second stroke in July 1996. On December 20, 1996, the dissolution resolution and articles of dissolution were filed, and a certificate of dissolution for the Foundation was obtained. Robinson had a third stroke in November 1997. She then left her ranch and moved into town. Robinson died on October 30, 1998 at the age of ninety-five.

II. Procedural Background

The 1995 Will was admitted to probate on December 8, 1998. On February 24, 2000, SMBA and STCH, beneficiaries named in a 1980 Will, sought to probate the 1980 Will and to set aside the order admitting the 1995 Will to probate. After learning that a later 1983 Will existed that left the bulk of Robinson's estate to the Foundation, Webb and Brock, as newly elected directors of the Foundation, sued Robinson's family and filed an application to probate the 1983 Will. In October 2000, a third amended petition was filed naming the Foundation as the lead plaintiff and withdrawing SMBA and STCH as contestants in the lawsuit. The Foundation was later joined by contestants Welch, Moore, Byrom, Jerry Guffy, and Thedford. The first trial ended in a mistrial when the jury was unable to reach a verdict.

On April 10, 2002, at the end of the second trial, the jury returned a verdict for appellees, finding Robinson lacked the testamentary capacity to execute the 1995 Will and the mental capacity to execute related estate documents. The jury also found that Robinson had been unduly influenced. On May 13, 2002, the trial court rescinded and set aside its order admitting the 1995 Will to probate and denied probate of the 1995 Will and of a second codicil to the 1995 Will. The court removed Anna and Derace Ayers as independent co-executors and ordered all assets of the estate delivered to Thedford upon her qualification as independent executor of the estate. The court also declared numerous estate-planning documents invalid and set them aside.⁶ By a separate order, the trial court ordered that the 1983 Will be admitted to probate as Robinson's valid last will and testament.⁷

III. Testamentary and Mental Capacity

By their first three issues, appellants generally contend that appellees failed to carry their burden of proving Robinson lacked testamentary and mental capacity.

A. Expert Testimony

In the first issue, appellants challenge the admission of expert testimony. They contend the trial court erred in failing to exclude the testimony of James B. Grigson, M.D., appellees' expert witness.

1. Preservation

Before addressing appellants' substantive arguments on this issue, we must determine whether it has been preserved for our review. Appellees assert that appellants waived this challenge because their objections were not timely raised in the trial court. Objections to testimony, including the qualifications of experts and the reliability of their theories and methodology, must be raised at the trial court level, and failure to do so waives any error on those grounds. Tex.R.App. P. 33.1(a); Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex.2002) (citing Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409-11 (Tex.1998)).

In the first trial of this case, appellants filed a motion to exclude the expert testimony of Dr. Grigson on the basis that his testimony was unreliable. On July 17, 2001 the trial court overruled that motion in open court stating "On the `Robinson — in quotes — Motion.' It relates to Dr. Grigson. I'm going to overrule the motion to exclude the expert testimony of Dr. Grigson." The first trial ended in a mistrial and, thus, returned the case to the posture it had been in before trial. See Wiley v. Joiner, 223 S.W.2d 539, 542-43 (Tex.Civ.App.-Fort Worth 1949, no writ) (mistrial is same as if no trial has taken place); see also Cortimeglia v. Herron, 281 S.W. 305, 306 (Tex.Civ.App.-Waco 1925, writ ref'd) (mistrial is termination of trial before judgment, not grant of new trial).

During the second trial, Dr. Grigson again was called to testify. Without objection, he testified as to his qualifications. Also without objection, Dr. Grigson presented a general medical discussion and a recital of Robinson's physical condition as revealed in her medical records. However, before Dr. Grigson offered his opinions regarding Robinson's testamentary capacity and mental capacity, appellants renewed their motion to exclude Dr. Grigson's testimony; testimony they claimed was unreliable. The trial court overruled the motion without specifying what analysis it applied in assessing the reliability of the testimony.

Appellants' objection to the reliability of Dr. Grigson's testimony, made in the form of their motion to exclude, was timely, its basis was clear, and a ruling was made by the trial court. See Tex.R.App. P. § 33.1(a); Guadalupe-Blanco River Auth., 77 S.W.3d at 807. Thus, appellant preserved this challenge for our review.

2. Admissibility of Dr. Grigson's Testimony

Having concluded that this issue has been preserved for our review, we now address appellants' contentions regarding the admission of Dr. Grigson's testimony. On appeal, appellants do not challenge Dr. Grigson's qualifications.⁸ Instead, appellants...