Lemus v. Aguilar

• Decision Date: 16 March 2016
• Docket Number: No. 04–14–00609–CV,04–14–00609–CV
• Citation: 491 S.W.3d 51
• Parties: Irma Lemus and Manuel Lemus, Appellants v. John Rene Aguilar, Johnny B. Wells, Laura Ashley Wells, and Johnny Montoya Garza, Appellees
• Court: Texas Court of Appeals

491 S.W.3d 51

Irma Lemus and Manuel Lemus, Appellants

v.John Rene Aguilar, Johnny B. Wells, Laura Ashley Wells, and Johnny Montoya Garza, Appellees

No. 04–14–00609–CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: March 16, 2016

Anita Jane Anderson, for Appellees.

Sarah Lishman, Ana Laura Hessbrook, for Appellants.

Sitting: Rebeca C. Martinez, Justice, Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice

OPINION

Opinion by: Patricia O. Alvarez, Justice

On February 10, 2016, we issued an opinion and judgment in this appeal. On February 17, 2016, Appellants Irma Lemus and Manuel Lemus Jr. filed a motion for rehearing. Although we deny the motion for rehearing, on our own motion, we withdraw our opinion and judgment of February 10, 2016, and substitute this opinion and judgment in its stead.

This appeal stems from a trespass to try title action. Appellants Irma Lemus and Manuel Lemus Jr. appeal the trial court's judgment awarding Appellees John Rene Aguilar, Johnny B. Wells, Laura Ashley Wells, and Johnny Montoya Gaza title to the property and attorney's fees, but denying all claims for reimbursement of improvements. On appeal, the Lemuses allege (1) the trial court erred in determining the purported will of Elvira G. Aguilar was actually a gift deed; (2) the evidence was factually insufficient to support the trial court's finding that the warranty deed Elvira G. Aguilar signed on January 7, 2009, was void for want of capacity; (3) the trial court erred in denying the Lemuses reimbursement for repairs, improvements, and taxes on the property located at 106 Cameo Avenue, San Antonio, Texas; (4) the trial court erred in finding the signature on the purported will was a forgery; and (5) the trial court erred in awarding attorney's fees to the appellees.

Because we conclude the “March 11, 2005 Will” was not a gift deed, we reverse the portions of the trial court's judgment naming John Rene Aguilar, Laura Ashley Wells, and Johnny B.Wells as title owners of the premises at 106 Cameo Avenue, San Antonio, Texas and the trial court's award of attorney's fees. We affirm the remaining portions of the trial court's judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

Factual and Procedural Background

Pursuant to a 1983 divorce, Elvira G. Aguilar¹ was awarded the home at 106 Cameo Avenue, San Antonio, Texas and lived at the residence for over twenty years with her partner, Johnny Montoya Garza. Elvira had five adult children: Irma Lemus, Irene Lambert, David Aguilar, Annette Wells, and Nanette Aguilar. Following the tragic deaths of Annette and her husband in 1990, Elvira and Garza were named the grandchildren's managing conservators. When Elvira's grandchildren, John Rene Aguilar, Laura Ashley Wells, and Johnny B. Wells, came to live at the Cameo residence, a second story was added to the home. Elvira's oldest daughter, Irma Lemus, filed multiple custody suits seeking to gain managing conservatorship of the grandchildren resulting in a very contentious relationship between Elvira and Irma.

A. “March 11, 2005 Will”

On March 11, 2005, Elvira and Garza signed a document titled “Will from Johnny Montoya Garza and Elvira G. Aguilar.”² The “March 11, 2005 Will” provided as follows: “we agree that the house be evenly owned by John Rene Aguilar, Laura Ashley Wells and Johnny B. Wells and that nothing will be done without the authorization of John Rene Aguilar, Johnny B. Wells and Laura Ashley Wells.” The document further provides that no changes will be made to the house without the authorization of the grandchildren; and, if there is a disagreement, the grandchildren were to have the final say in the matter. The document was handwritten by Garza and signed by both he and Elvira. All of the children and grandchildren knew of the document and its location in the home.

B. Elvira Begins Exhibiting Signs of Dementia

In middle to late 2005, Elvira began exhibiting difficulty recognizing family members, and she was diagnosed with Alzheimer's disease. Elvira's cognitive skills continued to decline; family members reported times of relative calm, punctuated by periods of hysteria, paranoia, confusion, and violent rages. Although medication slowed the dementia, Elvira's mental capacity progressively declined. In the summer of 2006, Elvira moved into her daughter Nanette's home. Elvira's progressive deterioration, both physically and mentally, required constant care.

In November 2008, Nanette suffered a recurrence of cancer, necessitating hospitalization and admittance into a long-term care facility. Nanette passed away shortly after being admitted. When Nanette was hospitalized, Elvira was also hospitalized and subsequently moved to a nursing home. The diagnosis from Elvira's admission examination included (1) mental impairment (Alzheimer's disease and psychosis ), (2) language/cognitive impairment (symbolic dysfunction ), and (3) various physical maladies (diabetes and hypertension ). A psychosocial evaluation, performed on November 24, 2008, concluded Elvira was so confused as to be unaware of Nanette's passing ten days prior.

C. January 7, 2009 Deed

Six weeks later, on January 7, 2009, Laura was visiting Elvira at the nursing home when Irma arrived. Laura testified that Elvira could not recognize any family members, including either herself or Irma.

After Laura departed, Irma and Elvira also left the nursing home. Irma and Elvira were met at a coffee shop by a notary and Elvira signed a warranty deed that was prepared by an attorney at Irma's request. The deed conveyed the 106 Cameo Avenue property to the Lemuses in exchange for “love and affection.” Although the attorney produced a billing statement showing the Lemuses paid for the deed's preparation, he testified that he possessed no personal recollection of preparing the deed. The notary, who was not an employee of the attorney's office, testified the transaction was memorable because it occurred at a Starbucks, and not a law office. She also recalled Irma's telephone call requesting her services. Irma explained Elvira “was not easily mobile and asked if [Elvira] needed to be present and I did confirm that yes, she did.” The warranty deed was filed of record the following day.

An evaluation by Elvira's doctor, conducted the day the deed was filed, opined Elvira suffered from psychosis, dementia, agitation, depression, and periods of physical aggression. Similarly, nursing notes in Elvira's medical chart described Elvira as confused, combative, often refusing medications, and unable to find her room without assistance.

D. Events after January 2009

Garza was employed as a long-haul truck driver and continued to occupy the home when in town until January of 2009, when the Lemuses changed the locks. Garza testified the grandchildren also had keys to the home until that time. Elvira passed away on July 1, 2011, approximately six months before Garza filed this trespass to try title suit.

Knowing many personal items were stored in the 106 Cameo Avenue residence, the Lemuses continued to allow family members access to the garage, even after the deed was filed. The Lemuses did, however, prevent Garza from mowing the lawn and Johnny B. from actually occupying the residence. On January 6, 2012, Garza filed this trespass to try title action and was later joined by the grandchildren. In response to Garza's suit, the Lemuses blocked all access to the residence, including the items stored in the garage. Finally, in late 2012, almost a year after the suit was filed, the Lemuses began repairs to the property.

The “March 11, 2005 Will”

A. Requirements of a Will

Before determining any rights conveyed under the “March 11, 2005 Will,” we must determine whether the document was a valid will. Because will construction is a question of law, an appellate court applies a de novo standard of review. See Eckels v. Davis, 111 S.W.3d 687, 694 (Tex.App.–Fort Worth 2003, pet. denied) ; Hurley v. Moody Nat'l Bank of Galveston, 98 S.W.3d 307, 310 (Tex.App.–Houston [1st Dist.] 2003, no pet.).

Texas Estates Code section 251.051 requires, inter alia, a last will and testament be (1) in writing, (2) signed by the testator, and (3) attested to by two or more credible witnesses. See Tex. Est. Code Ann. § 251.051 (West 2014). Because the “March 11, 2005 Will” was not attested to by two witnesses, we look to whether the document qualifies as a holographic will. See id. § 251.052 (“[A] will written wholly in the testator's handwriting is not required to be attested by subscribing witnesses”). If the will is handwritten entirely by the testator, the testator need only affix a signature or initials to the document to execute the instrument. See id. ; Trim v. Daniels, 862 S.W.2d 8, 10 (Tex.App.–Houston [1st Dist.] 1992, writ denied) ; In re Estate of Standefer, ––– S.W.3d ––––, ––––, No. 11–14–00221–CV, 2015 WL 5191443, at *4 (Tex.App.–Eastland Aug. 21, 2015, no pet.).

Although the “March 11, 2005 Will” purported to be the will of both Elvira and Garza, it was handwritten by Garza. For it to be valid as to Elvira, section 251.052 required the holographic will be handwritten by Elvira and signed by Elvira. See Tex. Est. Code Ann. § 251.052. Without such, the document had to be signed in the presence of two competent witnesses. See Tex. Est. Code Ann. §§ 251.051, .052; see Triestman v. Kilgore, 838 S.W.2d 547, 547 (Tex.1992) (per curiam); Brown v. Traylor, 210 S.W.3d 648, 661 (Tex.App.–Houston [1st Dist.] 2006, no pet.) ; Bostic v. Bostic, No. 12–02–00305–CV, 2003 WL 22047902, at *4 (Tex.App.–Tyler Aug. 29, 2003, no pet.) (mem.op.) (finding evidence holographic will was written by sister of testator raised genuine issue of material fact).

Because the will was not written by Elvira or signed in the presence of two competent witnesses, we conclude the “March 11, 2005 Will” was not a valid will under section 251.051 or section 251.052 of the Texas Estate Code. See Tex. Est. Code Ann. §...