Lopez v. Hansen
| Decision Date | 01 May 1997 |
| Docket Number | No. 01-96-00034-CV,01-96-00034-CV |
| Citation | 947 S.W.2d 587 |
| Parties | Linda Ramirez LOPEZ, Appellant, v. Borghild HANSEN, Tore Andersen, Rune Andersen, and Bjorn Andersen, Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Frank C. Farris, Houston, for Appellant.
Anita Krosby Cutrer, Fort Worth, for Appellee.
Before SCHNEIDER, C.J., and MIRABAL and O'CONNOR, JJ.
The appellant, Linda Ramirez Lopez, appeals the trial court's judgment denying her application to probate the written will of the decedent, Elfi M. Keating. In two points of error, Lopez argues the trial court erred in refusing to file findings of fact and conclusions of law and in denying her application for the probate of Keating's holographic will. We affirm.
Elfi M. Keating died at the age of 72 in Harris County, Texas, on November 18, 1992. She left an estate valued at approximately $150,000. Lindell Jenkins, a family friend, filed an application for probate of her holographic will. Jenkins also filed documents stating that someone, other than Keating, had changed the first page of Keating's will. The appellees, Borghild Hansen, Tore Andersen, Rune Andersen, and Bjorn Andersen (collectively, the heirs) filed an opposition to probate of the will. Subsequent to the heirs' opposition, Jenkins filed a motion to non-suit his application. On September 29, 1994, the trial court granted Jenkins' motion and entered a judgement of heirship declaring that Keating died intestate and ordering her property divided amongst the heirs, who live in Norway, according to Texas laws of intestate succession.
On February 13, 1995, the appellant, Linda Lopez, filed an application for probate of Keating's holographic will. After Lopez filed her application, the heirs filed a petition restating their opposition to probate of the will. After a bench trial, the trial court entered a final judgment denying probate of the will. Lopez's counsel timely requested findings of fact and conclusions of law. After discovering the documents submitted for appeal did not include the trial court's findings of fact and conclusions of law, Lopez's counsel sent a letter to the trial court and again requested findings of fact and conclusions of law. The trial court did not respond to the second request.
In a bench trial, where no findings of fact and conclusions of law are filed, the trial court's judgment implies all necessary findings of fact to support it. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989); Baytown State Bank v. Nimmons, 904 S.W.2d 902, 904 (Tex.App.--Houston [1st Dist] 1995, no writ). When the implied findings of fact are supported by evidence, it is an appellate court's duty to uphold judgment on any theory of law applicable to the case. Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.1987); Weng Enter. v. Embassy World Travel, Inc. 837 S.W.2d 217, 223 (Tex.App.--Houston [1st Dist.] 1992, no writ). Implied findings may be challenged by factual and legal sufficiency points. Roberson, 768 S.W.2d at 281; Giangrosso v. Crosley, 840 S.W.2d 765, 769 (Tex.App.--Houston [1st Dist.] 1992, no writ).
In point of error one, Lopez argues the trial court erred by not filing findings of fact and conclusions of law. We disagree.
The Rules of Civil Procedure provide that within 20 days after the judgment is signed, any party may request the trial court to state in writing its findings of fact and conclusions of law. TEX.R. CIV. P. 296; Wallace v. Wallace, 623 S.W.2d 723, 724 (Tex.App.--Houston [1st Dist.] 1981, writ dism'd). The record shows that Lopez timely requested findings of fact and conclusions of law, but that the trial court did not respond. When the court does not file findings of fact and conclusions of law, the party making the request shall, within 30 days after filing the original request, file with the clerk a "Notice of Past Due Findings of Fact and Conclusions of Law." TEX.R. CIV. P. 297; Robles v. Robles, No. 01-94-00367-CV, 1996 WL 443707, --- S.W.2d ---- (Tex.App.--Houston [1st Dist.], Aug. 8, 1996, n.w.h.) (not yet reported). Lopez did notify the trial court of its failure to file the findings of fact and conclusions of law, but her request was sent after the deadline to submit notice had expired. Because Lopez did not meet the time requirement of rule 297, she waived her right to complain of any error on appeal. Las Vegas Pecan & Cattle Co. v. Zavala Cty., 682 S.W.2d 254, 255 (Tex.1984); Pierson v. GFH Fin. Servs. Corp., 829 S.W.2d 311, 314 (Tex.App.--Austin 1992, no writ).
We overrule point of error one.
In point of error two, Lopez argues the trial court erred by refusing to probate the decedent's holographic will because the will was wholly in the testator's handwriting. We disagree.
The will proponent has the burden of proving the holographic will is "wholly in the handwriting of the testator." TEX. PROB.CODE ANN. § 84(b) (Vernon 1984); Gunn v. Phillips, 410 S.W.2d 202, 205 (Tex.Civ.App.--Houston 1967, writ ref'd n.r.e.). "If not self proved as provided in [the probate] code, a will wholly in the handwriting of the testator may be proved by two witnesses to his handwriting, which evidence may be by sworn testimony or affidavit taken in open court." TEX. PROB.CODE ANN. § 84(b) (Vernon 1984); see Trim v. Daniels, 862 S.W.2d 8, 10 (Tex.App.--Houston [1st Dist.] 1992, writ denied).
To meet this burden, Lopez offered the testimony of herself and her husband, Martin Lopez. At trial, Lopez testified that she was familiar with Keating's handwriting, and that the holographic will was wholly in Keating's handwriting. Lopez claimed she recognized Keating's handwriting because Keating would make "a list of things to get her from the store." Lopez further testified that Keating gave her an envelope that was not to be opened until she (Keating) died. This envelope contained the will. At the conclusion of Lopez's testimony, the trial court requested Lopez to fold the will as it was folded inside the envelope. The trial court then expressed doubts that the will would fit into the envelope as Lopez had testified. The trial court then asked Lopez why, if the will did in fact fit in the envelope, did it not have any creases down the center or the sides. Lopez was unable to explain this discrepancy, but stated that Martin Lopez could testify that the will was folded in the envelope.
Martin Lopez also testified the handwriting and signature on the will was Keating's. He stated, however, that he had only seen Keating's handwriting on one occasion.
The appellees offered controverting evidence as to whether the holographic will was wholly written in Keating's handwriting, and this evidence is sufficient to support the trial judge's ruling denying application to probate the will. Abel Salazar, who lived with Keating during the two years before her death, testified he was familiar with Keating's handwriting. When handed a copy of Keating's will, he testified that neither the signature on the first page of the will nor the signature on the second page of the will belonged to Keating.
Because the witnesses could not testify that they saw Keating write the entire instrument in her own handwriting, their testimony was opinion evidence sufficient in itself to raise a factual issue, not conclusively establishing proof. In re Estate of Roberts, 661 S.W.2d 177, 181 (Tex.App.--San Antonio 1983, no writ). Thus, it was within the trial court's discretion to disbelieve the testimony and conclude the evidence was insufficient to prove the instrument in question was the last will and testament of the decedent. Id.
Based upon the record, we conclude there is sufficient evidence showing the holographic will was not entirely written in the Keating's handwriting. Because the record does not contain findings of fact and conclusions of law, and the evidence supports the implied findings of fact, we must uphold the trial court's judgment. See Roberson, 768 S.W.2d at 281; Nimmons, 904 S.W.2d at 904. Therefore, we hold the trial court properly denied Lopez's application for probate of the will.
We overrule point of error two and affirm the judgment of the trial court.
HEDGES, J., requested a vote to determine if the case should be heard en banc, pursuant to TEX.R.APP. P. 79(d), (e) and TEX.R.APP. P. 90(e).
O'CONNOR, HEDGES and ANDELL, JJ., voted in favor of en banc consideration.
The only credible evidence in this case is that the holographic will was written by and signed by the decedent, Elfi M. Keating.
According to the holographic will, Keating left her relatives in Norway all her money (about $94,000) to be divided equally between them. She wanted her knickknacks, rings, and watches to be sent to her niece in Norway. She left her house to Lindell Ray Jenkins, and at his death to Linda Ramirez (Lopez). She asked to be cremated and the ashes sent to Norway.
Before making a factual summary, I voice my objection to the panel's opinion relating as "facts" matters which are not facts in this case or any other. In the first paragraph under "Facts," only the first two sentences are facts; the rest of that paragraph is taken from pleadings filed by a person not a party to this suit and not supported by the pleadings, the brief, or the facts in this case. The "facts" contained in those sentences are not relevant to the issue in this case. Presumably the purpose in discussing matters plead elsewhere is to muddy the waters regarding the authenticity of the holographic will in this case. That should be left to the facts testified at the hearing, not the pleadings of a non-party. ...
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