Walker v. Hanes

• Decision Date: 29 August 1978
• Docket Number: No. 1288,1288
• Citation: 570 S.W.2d 534
• Court: Texas Court of Appeals
• Parties: Billy WALKER, Sr., et al., Appellants, v. Leonard C. HANES et al., Appellees.

Page 534

570 S.W.2d 534

Billy WALKER, Sr., et al., Appellants, v. Leonard C. HANES et al., Appellees.

No. 1288.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 29, 1978.

Rehearing Denied Sept. 21, 1978.

Neil Norquest, Stephen P. Dietz, Ewers, Toothaker, Ewers, Abbott, Talbot, Hamilton & Jarvis, McAllen, for appellants.

Thomas W. Wilkins, Wilkins & Phillips, McAllen, D. A. VanDressar, Caldwell, for appellees.

OPINION

NYE, Chief Justice.

This is a summary judgment case. Appellants, Billy Walker, Sr., and Billy Walker, Jr., brought a writ of certiorari to review an order of the probate court of Hidalgo County, Texas, refusing to admit to probate the September, 1969 will of Letha L. Bourland, Deceased. The district court granted summary judgment for the beneficiaries of the earlier March will cited by publication because the Walkers had failed to commence this cause of action within the applicable statute of limitation period. Thereafter, the district court entered a second judgment which dismissed the remaining parties, including Hanes and the Rio Grande Bible Institute. Walkers perfected their appeal to this Court.

This case has been before our Court in two previous appeals. The last time was from an order of the district court "dismissing for lack of jurisdiction" the Walkers' petition for writ of certiorari. We held then that the trial court erred in dismissing the writ of certiorari and remanded the cause for trial on the merits. See In re Estate of Bourland v. Hanes, 526 S.W.2d 156 (Tex.Civ.App. Corpus Christi 1975, writ ref'd n. r. e.). ¹

The merits of this controversy arose over two purported wills of the decedent, Letha L. Bourland, one dated March 4, 1969, and the other dated September 4, 1969. The March will was admitted to probate on January 5, 1970, by Leonard C. Hanes, the named independent executor, duly qualified as such, and letters testamentary were issued to him. On March 5, 1970, Billy L. Walker, Sr., the named executor and a beneficiary of the September will, filed an application requesting, among other things, the admission to probate of the September will and the revocation of Hanes' letters testamentary. The probate court on November 8, 1972, denied probate of the September will and confirmed its prior order of probate of the March will. Our mandate of January 14, 1976, which reversed the district court's dismissal of the motion for writ of certiorari for lack of jurisdiction, remanded the cause for a trial on the merits. To date, however, the district court has not heard the merits of the issue of whether appellants should prevail in attempting to probate the September will.

After the cause was returned from this Court to the district court, Hanes again filed a plea to the jurisdiction of the district court alleging that the Attorney General and all of the named beneficiaries of the March will were necessary and indispensable parties to the writ of certiorari proceedings. Thereafter, on May 14, 1976, the Walkers filed an affidavit requesting service by publication on the remaining beneficiaries under the March will. Citation by publication was published four consecutive weeks, ending on June 10, 1976.

On August 26, 1976, the trial court entered an order appointing an attorney ad litem for the beneficiaries cited by publication. Later, the appointed attorney filed an answer on behalf of the beneficiaries cited by publication. This pleading contained a plea to the court's jurisdiction alleging that the trial court lacked jurisdiction to hear the case on the merits because the Walkers failed to timely join the March will beneficiaries so cited by publication. This pleading also contained an answer, subject to the plea to the court's jurisdiction. The answer contained a general denial and specifically pled that Sections 30, 73 and 93 of the Probate Code, as well as Article 5526, barred Walkers' action because they failed to proceed against the respondents cited by publication in a timely fashion as required by these sections. In addition, the March will beneficiaries cited by publication filed a motion for summary judgment on the basis that Walkers' cause of action was barred by limitations as pled in their first amended original answer.

This summary judgment motion was supported by the affidavits of the county and district clerks of Hidalgo County, Texas, which stated that no citation of process was ever requested or issued to serve the beneficiaries of the March will during the entire time the cause remained in the county court at law, or from December 14, 1973, the date of the filing of the amended petition for writ of certiorari in district court, until May 16, 1976, the date the affidavit for service of citation by publication was filed. In addition, the motion was supported by the May 14, 1976 Affidavit for Citation by Publication filed by Walkers' attorney, requesting service by publication because the residences of the beneficiaries of the March will were unknown and that after due diligence to find the whereabouts of such beneficiaries, they could not be found. The publisher's affidavit was attached stating the dates of the citation by publication.

On November 19, 1976, Walkers filed an answer to the respondents' motion for summary judgment and filed affidavits in support of their answer. Walkers' reply alleged, among other things, that service was not immediately issued upon the respondents alternately cited by publication because:

". . . when petitioners commenced to determine the whereabouts of the parties, Leonard Hanes and his attorneys represented that they would furnish to petitioners the addresses and whereabouts of the parties so that they could be served. Petitioners waited some time for this information, which was never forthcoming, and this court entered an order of dismissal before service could be had and the suit then spent many months on appeal. After the suit was remanded for trial, Petitioners then served the parties by publication pursuant to an affidavit made by Morgan Talbot."

Walkers' reply also alleged that the affidavit by Morgan Talbot (Affidavit for Citation by Publication) raised an issue of fact as to whether the Walkers knew of the whereabouts of the March will beneficiaries. The trial court's docket includes a notation dated November 22, 1976, that the respondents' motion for summary judgment was taken under advisement pending submission of briefs from both sides which were due by December 6, 1976. Apparently, a hearing was held by the trial court on November 22, 1976. Subsequently, the trial court made a decision; however, no formal order was signed or entered at that time. On January 14, 1977, Walkers filed a "Motion to Reconsider Summary Judgment" requesting the trial court to reconsider its unentered decision granting respondents' motion for summary judgment in light of stipulations ² made by the parties which were attached to Walkers' motion. The trial court entered an order setting a March 7, 1977 hearing date on Walkers' motion to reconsider.

At this hearing, the record indicates that the trial court considered Walkers' motion and the parties' authorities in support of and against the motion. The trial court then ruled that Walkers' motion to set aside the summary judgment would be overruled. On March 9, 1977, the trial court entered an undesignated "order" or "judgment" which recited in part as follows:

"That the copy of the will of the decedent dated March 4, 1969, attached to and made a part of petitioners' pleadings in this cause, shows conclusively as a matter of law that such respondents cited by publication are necessary and indispensable parties whose interests are adverse to the petitioner's; and

That the pleadings and documents on file, together with the supporting affidavits and instruments show, as a matter of law, that no action was commenced against such parties cited by publication within the period of limitation provided by law; that there is no genuine issue as to any material facts; that the moving parties are entitled to judgment as a matter of law."

On July 28, 1977, the trial court entered a "final judgment" dismissing the remaining respondents, Hanes and Rio Grande Bible Institute, Inc. Walkers then appealed to this Court.

The appellees filed a motion in this Court to dismiss this appeal on the grounds that this Court lacked jurisdiction. The question seemed so serious that we had the attorneys prepare briefs and we heard oral arguments on the motion. On April 20, 1978, we handed down an opinion overruling the motion to dismiss, whereupon briefs on the merits of this appeal were ordered filed and oral arguments were then heard on June 22, 1978. (See Appendix, Opinion on Motion).

The appellants (Walkers) bring forward on appeal points of error complaining of the trial court's action in granting the motion for summary judgment filed on behalf of the respondents cited by publication and of dismissing Hanes and the Rio Grande Bible Institute. Appellants' six points of error can be reduced to two major categories. In points of error one through four and six, the appellants complain of that portion of the March 9th "order" in which the trial court stated that the respondents cited by publication were "necessary and indispensable parties." These points of error have been considered and are overruled. The central point of this appeal, however, concerns appellants' fifth point of error which directly attacks the propriety of the trial court's action in granting the motion for summary judgment in favor of the publication respondents. This point of error is dispositive of the appeal.

In passing upon this point of error, we are guided by the familiar rules concerning summary judgments established by our Supreme Court. Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered where the record shows that there is no genuine issue as to any material fact and that the moving pa...