Estate of Bonnie Lorraine Cox Pennington ( 2001 )

NUMBER 13-99-279-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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ESTATE OF BONNIE LORRAINE COX PENNINGTON, DECEASED

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On appeal from the County Court at Law No. 1

of Victoria County, Texas.

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O P I N I O N

Before Justices Dorsey, Yañez, and Seerden⁽¹⁾ Opinion by Justice Yañez

James Allred, Jr., appellant, filed an application to probate a copy of the will of his deceased great-aunt, Bonnie Pennington. The appellees, Pennington's daughters⁽²⁾, contested the will. Appellees were granted a "no evidence" summary judgment from which Allred now appeals. We reverse and remand.

Background

Bonnie Pennington executed a will on October 7, 1996, which contained a clause stating that her daughters were not to inherit any of her estate, "for reasons sufficient to me." The October 7 will leaves all of Pennington's property and estate to her great-nephew, appellant James Allred. Pennington passed away on June 5, 1998 and appellant applied to probate a copy of the will on August 11, 1998. The original will has never been produced.

Appellees filed an opposition to the application to probate the will. In their opposition, the appellees contended that Pennington revoked her will by destroying it. The appellees also argued that the October 7 will revoked all previous wills; thus, by revoking it, Pennington died intestate. After propounding requests for admissions, interrogatories, and requests for production to the appellant and receiving appellant's responses and answers, the appellees filed a motion for a no-evidence summary judgment. Tex. R. Civ. P. 166a(i). In their motion, appellees relied on the presumption recognized by Texas law that when a will cannot be found at the time of the testator's death, and the testator was the last person to be in possession of the will, the testator is presumed to have revoked the will by destroying it. See In re the Estate of Caples, 683 S.W.2d 741, 743 (Tex. App.--Corpus Christi 1984, writ ref'd n.r.e.). Appellant filed a response to the summary judgment motion, to which he attached four affidavits. Appellees objected to the affidavits. At the summary judgment hearing, the trial court heard arguments from both parties as to the admissibility of the affidavits. The trial court sustained appellees' objections to the evidence, then granted summary judgment in favor of the appellees.

Appellant's Challenges

Appellant challenges the summary judgment with three issues on appeal. With his first issue, appellant argues that there was a question of fact that precluded summary judgment. With his second issue, appellant argues that the trial court erred in sustaining appellees' objections to appellant's summary judgment evidence and in his third issue, appellant contends that the trial court erred in holding that Pennington had died intestate. Because the first issue is largely dependent upon the second issue, we will begin by addressing appellant's second issue.

Appellant's second issue contains the following two arguments: (1) appellees failed to preserve their objections to appellant's summary judgment evidence; and (2) appellees' objections should have been overruled by the trial court. Appellant first argues that the appellees failed to obtain a written ruling on their objections to the affidavits submitted by appellant to counter the no-evidence summary judgment. Appellant contends that because appellees failed to obtain written rulings on their objections, they have waived those complaints on appeal and we must accept the affidavits as evidence. We disagree.

Preservation of the Objections to the Affidavits for Appeal

This Court has held that "a party objecting to the competency of summary judgment proof must obtain a ruling on its objection or obtain a written order signed by the trial judge and entered of record, or the objection is waived and the proof remains a part of the summary judgment record." Castillo v. Tropical Tex. Ctr. for Mental Health and Mental Retardation, 962 S.W.2d 622, 625 (Tex. App.--Corpus Christi 1997, no pet.)(italics added); Bauer v. Jasso, 946 S.W.2d 552, 556 (Tex. App.--Corpus Christi 1997, no writ); see also Tex. R. App. P. 33.1(a) (to present a complaint for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion and the trial court implicitly or expressly ruled on the request, objection, or motion). In the present case, the trial court held a hearing, considered arguments offered by both parties, then stated that it sustained appellees' objections. This constitutes a ruling sufficient to preserve this issue on appeal.

The second argument raised by appellant in this issue is that the trial court erred by sustaining appellees' objections to the four affidavits attached to appellant's response to the summary judgment motion.

The Affidavits

The standards for determining the admissibility of evidence in a summary judgment proceeding are the same as those applied in a trial. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). Decisions about the admissibility of evidence are left to the sound discretion of the trial court. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); Pegasus Energy Corp. v. Cheyenne Petroleum Co., 3 S.W.3d 112, 133 (Tex. App.--Corpus Christi 1999, pet. denied). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995).

Affidavits are statements "in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office." Tex. Gov't. Code Ann. § 312.011 (Vernon 1998). No particular terminology is required to render a document an affidavit; "it is the substance and not the form of an affidavit that is important." Norcross v. Conoco, Inc., 720 S.W.2d 627, 630 (Tex. App.--San Antonio 1986, no writ). An affidavit must reflect that it was made on personal knowledge. Huckin v. Connor, 928 S.W.2d 180, 183 (Tex. App.--Houston [14th Dist.] 1996, writ denied).

The affidavits at issue in this case are those of appellant, appellant's stepfather, John Nelson; Pennington's neighbor, Howard West; and Pennington's attorney, M. P. Eaves. All four of the affidavits state that to the "knowledge and belief" of the respective affiant, Pennington never revoked the will. Appellees argued that the statements that Pennington never revoked the will are conclusory and, therefore, are not competent summary judgment evidence. We find that the statements do constitute conclusions; revocation is a legal term referring to the process by which a testator may negate a will. See Tex. Prob. Code Ann. § 63 (Vernon 1980) (setting out methods by which a written will may be revoked).

Conclusory assertions are not competent summary judgment evidence. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Cox v. Galena Park Indep. Sch. Dist., 895 S.W.2d 745, 748 (Tex. App.--Corpus Christi 1995, no writ). The section of each affidavit containing the conclusion that the will was never revoked was properly excluded. However, an affidavit containing conclusions may also contain admissible statements. See Marshall v. Sackett, 907 S.W.2d 925, 933 (Tex. App.--Houston [1st Dist.] 1995, no writ) (an affidavit containing conclusory and subjective determinations of fact may support a motion for summary judgment if the remaining statements contain sufficient factual information to sustain the movant's burden of proof).

Appellees further argued, at trial and on appeal, that the affidavits are fatally flawed in that they fail to demonstrate that they are made on the personal knowledge of the affiant. Affidavits must demonstrate that they are made on the personal knowledge of the affiant. Bauer, 946 S.W.2d at 557. This Court has held that an affidavit is sufficient when, taken in its entirety, the affidavit demonstrates that it was made on the personal knowledge of the affiant. Id. Appellee argue that the affidavits in the case now before this Court differ from those in Bauer because they expressly qualify the state of the affiants' knowledge. We disagree. The affidavits taken as a whole demonstrate that they are made on the personal knowledge of the affiants. The qualifying phrase "knowledge and belief," refers only to the conclusion that the will was never revoked. This phrase does not apply to the remainder of the statements contained in the affidavits.

Although the statements about revocation were inadmissible, we will consider each of the affidavits individually to determine if they contained other evidence which was admissible.

The Eaves Affidavit

M.P. Eaves drafted the October 7 will, and served as Pennington's attorney. Beyond the conclusory statement that the will was not revoked, Eaves's affidavit contains a description of the October 7 will, and statements concerning the formalities observed in the course of executing the will. The affidavit also includes the statement that after the will was executed, Eaves "saw Mrs. Pennington many times, in and out of [his] office and she never mentioned the will again." Appellees objected to this statement as irrelevant and hearsay.

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). The rules of evidence define "statement" as verbal expression, or nonverbal conduct of a person if it is intended by the person as a substitute for verbal expression. Tex. R. Evid. 801(a). Pennington's nonverbal conduct, in not mentioning the will to her attorney, is not nonverbal conduct intended as a substitute for verbal expression. Eaves' statement is not hearsay. We now consider appellees' argument that this evidence is not relevant.

Relevant evidence is evidence that tends to make the existence of a consequential fact more or less probable. Tex. R. Evid. 401. Irrelevant evidence is inadmissible. Tex. R. Evid. 402. The fact that Pennington never mentioned her will to her attorney after executing it on October 7, tends to support the conclusion that she had no intention of revoking her will; when Pennington had the October 7 will drafted, it included a clause revoking all previous wills. We find this statement relevant and the trial court erred in excluding it.

The West Affidavit

Howard West was Pennington's neighbor and rented an apartment from her. West stated, in his affidavit, that Pennington told him on several occasions that she did not want any part of her estate to pass to her daughters. This statement is hearsay and, therefore, inadmissible. Tex. R. Evid. 801(d), 802. West also stated that Pennington offered to show him the will on several occasions to show him that the daughters were excluded from the will. This is an out-of-court statement offered for the truth of the statement, and therefore, constitutes hearsay. Tex. R. Evid. 801(d). However, the affidavit also states that the appellees did not visit Pennington during the year prior to her death. Evidence that the deceased had a poor relationship with a person claiming revocation of a will was revoked is relevant to the question of revocation, if that person stands to take more under intestacy than she would under the challenged will. See Caples, 683 S.W.2d at 742 (poor relationship between decedent and intestate claimant considered along with other evidence). This evidence is relevant and admissible.

The Nelson Affidavit

John Nelson, the appellant's step-father, also submitted an affidavit. The only statement in the affidavit to which the appellees objected was the statement that, to Nelson's knowledge, Pennington never revoked her will.⁽³⁾ Appellees did not object to the remaining statements in the affidavit. We have already held that this statement is conclusory; however, without objections, there were no reasons for the trial court to exclude the remaining parts of the affidavit. The affidavit includes a statement made by one of the appellees, Bennie Salerno in which she acknowledges that the Pennington was leaving everything to appellant. This statement was not challenged by appellees, and is an admission by party opponent, which would be admissible. See Tex R. Evid. 801(e)(2)(A). This statement is also relevant, because it would show that at least one of the appellees was aware that she would receive nothing under the will. See Caples, 683 S.W.2d at 742 (factors considered in case involving presumption of destruction included intestate heir's awareness that intestate portion of estate was more valuable than the portion granted under the will). This statement should have been admitted in evidence, as it is not subject to any legitimate evidentiary objections.

The Allred Affidavit

Appellant also offered his own affidavit to oppose the summary judgment. Appellees challenged most of the statements in the affidavit as either hearsay, irrelevant, or both. One statement made by appellant is similar to the statement contained in the Eaves affidavit, that after executing the October 7 will, Pennington never spoke about her will. As discussed above, this statement is relevant and is not hearsay. The trial court erred in excluding this statement. The remaining portions of this affidavit to which appellees objected were correctly excluded.

The Admissibility of the Affidavits

All of the affidavits include impermissible conclusory statements to the effect that Pennington did not revoke her will. However, although the affidavits contain some inadmissible statements, they also contain admissible evidence that should have been considered by the trial court. The trial court erred in sustaining all of the appellees' objections, and should have excluded only the inadmissible portions of the affidavits in ruling on appellees' no-evidence summary judgment motion. Issue number two is sustained.

We next address appellant's first issue, in which appellant argues that he raised an issue of material fact sufficient to preclude the granting of appellees' no-evidence summary judgment motion.

The No-Evidence Summary Judgment Standard

No-evidence summary judgments are equivalent to pretrial directed verdicts; therefore the granting of a no-evidence summary judgment is reviewed under the same legal sufficiency standard applied in reviewing directed verdicts. Zapata v. The Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.--Corpus Christi 1999, pet. denied); Moore v. Kmart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied); Moritz v. Bueche, 980 S.W.2d 849, 853 (Tex. App.--San Antonio 1998, pet. denied). We review the evidence in the light most favorable to the party against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Whalen v. Condominium Consulting and Mgmt. Servs. Inc., 13 S.W.3d 444, 446 (Tex. App.--Corpus Christi 2000, pet. denied); Zapata, 997 S.W.2d at 747. A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Havner, 953 S.W.2d at 711; Zapata, 997 S.W.2d at 747.

Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983); Zapata, 997 S.W.2d at 747. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d at 711; Zapata, 997 S.W.2d at 747.

Application of the Standard

When a will in the testator's possession cannot be produced after her death, the proponent of the will must prove that the testator did not destroy the will with an intention to revoke it. Caples, 683 S.W.2d at 742. The proponent of the will can overcome the presumption by producing evidence of facts and circumstances contrary to the presumption. Appellees argued in their motion for summary judgment that appellant could not produce any evidence that Pennington had not destroyed the October 7 will.

The evidence before the court, viewed in the light most favorable to appellant is that Pennington did not have a good relationship with the appellees. The will made it clear that, at the time she executed it, Pennington did not intend to leave any of her estate to the appellees. The fact that the will includes a specific revocation clause indicates that Pennington was aware of the effects of revocation. At least one of the appellees knew that, if the will was probated, she would inherit nothing. According to the Nelson affidavit, when Pennington went into the hospital, one of the appellees suggested that appellant should manage Pennington's property. Appellees did not visit Pennington and had a poor relationship with her. Only a few days before Pennington passed away, one of the appellees told appellant's stepfather that Pennington was leaving everything to appellant and his children.

In the instant case, we find that the appellant produced enough evidence of facts and circumstances contrary to the presumption to raise an issue of genuine fact as to the application of the presumption. Appellant has raised a fact question sufficient to overcome a no-evidence summary judgment. The trial court erred in granting the appellees' summary judgment motion and in decreeing that Pennington died intestate. There are fact issues precluding this judgment. Issue number one is sustained. Because this issue if dispositive, we do not address the appellant's third issue on appeal. Tex R. App. 47.1.

We REVERSE the judgment of the trial court and REMAND this case to the trial court for further proceedings consistent with this opinion.

LINDA REYNA YAÑEZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

19th day of April, 2001.

1. Retired Chief Justice Robert J. Seerden assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to TEX. GOV'T CODE ANN.§ 74.003 (Vernon 1998).

2. Bennie Salerno and Stella Hodgkinson.

3. This is also the only objection to Nelson's affidavit raised on appeal.