In the Estate of Bobby Don Riley v. the State of Texas ( 2023 )

Opinion issued August 15, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00504-CV
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IN THE ESTATE OF BOBBY DON RILEY, DECEASED
On Appeal from the County Court at Law No. 1
Johnson County, Texas*
Trial Court Case No. CC-P202124594
*
The Supreme Court of Texas transferred this appeal to this Court from the Court
of Appeals for the Tenth District of Texas, pursuant to its docket-equalization
authority. See TEX. GOV’T CODE § 73.001 (“The supreme court may order cases
transferred from one court of appeals to another at any time that, in the opinion of
the supreme court, there is good cause for the transfer.”). We are unaware of any
conflict between the precedent of the Court of Appeals for the Tenth District and
that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
MEMORANDUM OPINION
Sharlotte Ann Riley, the widow of Bobby Don Riley, appeals from an order
denying her application to probate her late husband’s will as a muniment of title. In
the trial court, Sharlotte’s stepdaughters, appellees Amanda Riley Price and Rachel
Riley Henderson, objected to admission of the will to probate on the ground that
more than four years had passed since their father’s death. The trial court granted
the will contest, and it denied Sharlotte’s application. The trial court also issued
two findings of fact regarding identification and authentication of the will, which
was on file, and a single conclusion of law, holding that probate of the will failed
for lack of proper offer.
On appeal, Sharlotte raises three issues challenging the findings of fact and
the conclusion that the will was not properly offered. She did not challenge the trial
court’s ruling on the appellees’ limitations objection.
We affirm.
Background
About a month before his death, Bobby Don Riley, who had ALS, executed
a will, leaving all his assets to his wife, Sharlotte, and, in the alternative, to his two
daughters and two stepdaughters in equal shares. The will had a self-proving
affidavit. Sharlotte was present when Bobby signed the will. Bobby’s sister,
Michelle Hunt, was named independent executrix. Sharlotte testified that she
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received a copy of the will a couple of weeks after it was signed, and Michelle had
the original. Sharlotte testified that she kept the copy of the will in the safe at her
house, and she said that for the first four years after Bobby died, she believed that
she had the original will.
Bobby died on September 16, 2017. At the hearing on the application to
admit Bobby’s will to probate, Sharlotte said that after Bobby died, she asked
Michelle to about probating the will multiple times. Sharlotte testified that
Michelle, who worked as an accountant or bookkeeper, assured her that they had
five years to probate the will. Sharlotte said: “I trusted Michelle to know what she
was doing. Her mom and dad have both passed. She took care of everything, so I
would assume she would know what she was talking about.” When Sharlotte and
her adult daughters encountered personal adversity, communication between
Sharlotte and Michelle ceased. Sharlotte said: “It got to where she wouldn’t return
my phone calls. She wouldn’t return my texts.” Sharlotte said Michelle also “had a
lot of stuff going on in her life at the same time.” Sharlotte did not believe that
Michelle was intentionally obstructing the probate of the will.
About four years and a few weeks from the date of Bobby’s death, Sharlotte
consulted a lawyer. On December 15, 2021, Sharlotte filed an application to
probate Bobby’s will as a muniment of title. Sharlotte attached a copy of the will to
her application. A little over a month later, she filed an amended application to
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probate the will, along with the original will, which Sharlotte had obtained from
Michelle.
Bobby’s daughters, Amanda and Elizabeth, challenged the will by filing a
written objection. They asserted that the application to probate the will was filed
more than four years after their father’s death, and that Sharlotte was in default
because she knew that Michelle had no obligation to apply to probate the will and
that Sharlotte had possession of a copy of the will since it was executed. They
argued that Sharlotte had no legally sufficient excuse for failing to probate the will
or a copy within four years of Bobby’s death.
The trial court held a hearing on the application to probate Bobby’s will.
Sharlotte was the sole witness, and no documents or exhibits were admitted into
evidence. At the end of the hearing, the court stated on the record that it would
deny probate of the will because there was no will offered or authenticated in the
hearing. The court also stated that there was no testimony about the identity of the
heirs and whether they were properly served. On March 8, 2022, the trial court
signed an order granting the appellees’ objection and denying probate of the will.
The trial court entered the following findings of fact and conclusions of law:
1. The will contained in the Court’s file was never identified by
any witness who testified on the record.
2. The signature on the will contained in the Court’s file was
never authenticated as the decedent’s signature by any witness
who testified.
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Therefore, the probate of the will fails for lack of proper proffer.
Analysis
On appeal, Sharlotte raises three issues. She asserts: (1) the trial court erred
by requiring identification of both the will, which the court recognized was on file,
and the testator’s signature; (2) the trial court’s findings were not supported by
legally sufficient evidence; and (3) if the court erred, the proper remedy is remand
for a determination of whether she was in default for applying to probate the will
more than four years after Bobby’s death.
The evidence at the hearing supports the trial court’s findings that the will in
the court’s file was not identified by a testifying witness, and the signature on the
will was not identified by a testifying witness. Only Sharlotte testified at the
hearing, the will was not admitted as evidence, and Sharlotte was not asked to
identify the will or the signature of her late husband. We need not address
Sharlotte’s issue about whether she properly offered the will, however, because
even if Sharlotte were to prevail on her issue, we would nevertheless affirm the
trial court’s order.
A reviewing court must uphold a correct trial court judgment on any legal
theory properly before the trial court. See Guar. Cnty. Mut. Ins. Co. v. Reyna, 709
S.W.2d 647, 648 (Tex. 1986) (“We must uphold a correct lower court judgment on
any legal theory before it, even if the court gives an incorrect reason for its
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judgment.”); Est. of Jones, 197 S.W.3d 894, 901 (Tex. App.—Beaumont 2006, pet.
denied) (same). “As a general proposition, an appellant must attack all independent
bases or grounds that fully support a complained-of ruling or judgment.” Oliphant
Fin. L.L.C. v. Hill, 310 S.W.3d 76, 77–78 (Tex. App.—El Paso 2010, pet. denied)
(citing Britton v. Tex. Dep’t of Crim. Just., 95 S.W.3d 676, 681 (Tex. App.—
Houston [1st Dist.] 2002, no pet.)); see Reynolds v. Hargrave, No. 10-19-00255-
CV, 2020 WL 5939049, at *5 n.3 (Tex. App.—Waco Aug. 26, 2020, no pet.)
(mem. op.) (following Oliphant). “If an appellant fails to do so, then we must
affirm the ruling or judgment.” Oliphant, 310 S.W.3d at 78 (citing Britton, 95
S.W.3d at 681). This proposition is predicated upon the understanding that if an
independent ground fully supports the complained-of ruling or judgment, but the
appellant assigns no error to that independent ground, then we must accept the
validity of that unchallenged independent ground; thus, any error in the grounds
challenged on appeal is harmless because the unchallenged independent ground
fully supports the complained-of ruling or judgment. Oliphant, 310 S.W.3d at 78;
Britton, 95 S.W.3d at 681.
Here, the trial court granted the will contest filed by Bobby’s daughters,
Amanda and Rachel. See TEX. EST. CODE § 55.001 (stating that person interested
in estate may oppose issue in probate proceeding by filing opposition in writing).
They asserted that Sharlotte failed to file her application to probate Bobby’s will as
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a muniment of title within four years of Bobby’s death and that she could not prove
she was not in default. See id. § 256.003(a) (“[A] will may not be admitted to
probate after the fourth anniversary of the testator’s death unless it is shown by
proof that the applicant for the probate of the will was not in default in failing to
present the will for probate on or before the fourth anniversary of the testator’s
death”); id. § 257.054 (specifying proof needed for admission of will to probate as
muniment of title, including that “four years have not elapsed since the date of the
testator’s death and before application”); see also Marshall v. Est. of Freeman, No.
03-20-00449-CV, 2022 WL 1273305, at *2 n.4 (Tex. App.—Austin Apr. 29, 2022,
no pet.) (mem. op.) (reversing admission of will as muniment of title more than
four years after testator’s death when “no evidence support[ed] a conclusion that
Executor acted reasonably diligently in probating the will as a muniment of title
upon discovering the will” and during year after attorney told him of need for
probate).
Sharlotte failed to challenge the trial court’s ruling sustaining the appellees’
objections based on limitations and default. In the trial court and on appeal,
Sharlotte argued that she was not in default because she relied on Michelle’s
representation that she had five years to probate Bobby’s will and because
Michelle had possession of Bobby’s original will. She further argued that the trial
court did not reach the default issue because it determined that Sharlotte had not
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identified the will that was on file with the court or identified Bobby’s signature on
it. We disagree. The trial court’s order granted the objection to probate, which was
expressly based on Sharlotte’s failure to apply for probate within four years and
lack of excuse for her default. Sharlotte has not provided us with any authority or
analysis on this issue. See TEX. R. APP. P. 38.1.
Moreover, Sharlotte testified that she knew Bobby’s will existed because she
was present when he signed it, she had a copy of the will that she believed was the
original, she repeatedly asked Michelle about probating the will, and she knew that
Michelle was not an attorney. While Texas courts have liberally permitted
proponents to offer a will as muniment of title after the expiration of the four-year
limitations period, they have done so only when the proponent has demonstrated
that she acted with reasonable diligence and offered evidence of circumstances
such as reliance on the erroneous advice of counsel or a belief that probate was
unnecessary, coupled with evidence of concern about the cost of probate. See, e.g.,
Est. of Calvillo, No. 05-16-00661-CV, 2017 WL 462353, at *6–7 (Tex. App.—
Dallas Jan. 26, 2017, no pet.) (mem. op.) (finding that proponent was not in default
when she relied on attorney who failed to promptly tend to her legal matter;
proponent was not bound by acts and omissions of her attorneys); Est. of
Hammack, No. 12-15-00246-CV, 2016 WL 1446083, at *3–4 (Tex. App.—Tyler
Apr. 13, 2016, no pet.) (mem. op.) (holding that fact issue defeated summary
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judgment when proponent argued that he was not in default because he lacked
resources to probate will and did not know that probate was required); Est. of
Allen, 407 S.W.3d 335, 341 (Tex. App.—Eastland 2013, no pet.) (holding that
proponent was not in default where she relied on attorney’s erroneous advice that
probate was not necessary); Est. of Perez, 324 S.W.3d 257, 263 (Tex. App.—El
Paso 2010, no pet.) (holding that proponent was not in default based on her limited
financial resources, limited educational background, and belief that attorney had
taken care of matter); Poppe v. Poppe, No. 01-08-00021-CV, 2009 WL 566490, at
*4 (Tex. App.—Houston [1st Dist.] Mar. 5, 2009, no pet.) (mem. op.) (noting that
default in timely filing for probate of will means failure due to “absence of
reasonable diligence” by party offering instrument); Chovanec v. Chovanec, 881
S.W.2d 135, 137 (Tex. App.—Houston [1st Dist.] 1994, no writ) (holding that fact
issue defeated summary judgment when proponent did not know he had to probate
will, believed property to be his separate property, and had been paid royalties on
mineral leases by third parties who never raised issue of proper title). The evidence
here shows that Sharlotte believed that probate was necessary, but she relied on
erroneous legal advice from a person whom she knew was not a lawyer.
The trial court’s ruling granting the appellees’ objection, which was based
on limitations, independently supports the trial court’s denial of probate.
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Accordingly, we must affirm the trial court’s order. See Oliphant, 310 S.W.3d at
78; Britton, 95 S.W.3d at 681.
Conclusion
We affirm the trial court’s order.
Peter Kelly
Justice
Panel consists of Justices Kelly, Hightower, and Countiss
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