Estate of Devitt

COUNTISS, Justice.

This is a will contest. Appellant Dorothy Secrest Klein challenged the probate of the will of her aunt, Christine Devitt. The trial court held that she was judicially estopped from contesting the will, and granted summary judgment for the executors, appellees Helen Devitt Jones and George W. McCles-key. In this Court, Klein attacks the judgment by three points of error. We will resolve only the first point, which is determinative, and reverse and remand.

Christine Devitt died testate in October of 1983. Under a will she signed in June of 1983 she distributed her substantial estate among numerous persons including Klein and the executors. Executor McCleskey, in addition to being a beneficiary under the will, was also her attorney. He prepared the will and, at her death, his firm initiated its probate. Although the 1983 will was self-proven, McCleskey’s partner obtained an affidavit in support of the will from Klein and her testimony, oral and written, was tendered in support of the will when it was offered for and admitted to probate in October of 1983.

In December of 1984, after learning that her share of the estate was less under the probated will than what she would have received under a 1977 will, Klein initiated a contest of the will, contending her aunt was subjected to undue influence and lacked testimentary capacity. The executors moved for summary judgment on the basis of judicial estoppel, contending that Klein’s earlier testimony in support of the will forever barred her from contesting it. The trial court agreed, and granted summary judgment. The applicability of judicial estoppel is challenged by Klein through her first point of error.

Because this is an appeal from a summary judgment, the issues before us must be resolved within the framework of settled principles of summary judgment law. A movant earns a summary judgment by establishing (1) the absence of genuine issues of material fact and (2) the right to judgment under those undisputed material facts, as a matter of law, on grounds expressly stated in the motion. Tex.R.Civ. Pro. 166-A(c); Delgado v. Bums, 656 S.W. 2d 428, 429 (Tex.1983); Whiddon v. Metni, 650 S.W.2d 904, 905 (Tex.App. — Dallas 1983, writ ref’d n.r.e.). The movant, against whom all doubts are resolved, has the burden of establishing both elements, City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979), and when the defendant is the movant, summary judgment is proper only if the plaintiff cannot, as a matter of law, succeed upon any theory plead. Peirce v. Sheldon Petroleum Co., 589 S.W.2d 849, 852 (Tex.Civ.App.—Amarillo 1979, no writ). Thus, the defendant can prevail by conclusively establishing against the plaintiff at least one factual element of each theory plead by the plaintiff, Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970), or by conclusively establishing every factual element of an affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Conversely, the plaintiff can bar the defendant’s entitlement to a summary judgment by responding with evidence that creates a fact question on those elements of the plaintiffs case under attack by the defendant or on at least one element of each affirmative defense advanced by the defendant. Torres v. Western Casualty & Surety Co., 457 S.W.2d 50, 52 (Tex.1970); see also Puga v. Donna Fruit Co., 634 S.W.2d 677, 680-81 (Tex.1982). Alternatively, the plaintiff can defeat the motion by conceding that the material facts are undisputed, but convincing the court that the defendant’s legal position is unsound. That is the stance taken by Klein here.

We must collate the foregoing principles with the substantive law of judicial estop-pel in order to resolve the first point. We note at the outset that the question before us requires a two part analysis: First, does judicial estoppel bar a party from assuming contradictory stances within the same proceeding? Second, if not, are the probate of a will and the contest of a will occurrences within the same proceeding?

The first question is not hard to answer. This Court analyzed the doctrine of judicial estoppel several years ago in Highway Contractors, Inc. v. West Tex.

Equipment, 617 S.W.2d 791 (Tex.Civ.App. —Amarillo 1981, no writ). After reviewing Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (Tex.1956), the leading Supreme Court decision on judicial estoppel, we summarized the rule as follows:

A party is judicially estopped in a subsequent proceeding by having alleged or admitted in pleadings in a former proceeding, under oath, the contrary of the assertion sought to be made in the subsequent proceeding, in the absence of proof that the averment in the former proceeding was made inadvertently or by mistake, fraud or duress. (Emphasis added.)

We remain satisfied with our review and statement of the rule. Judicial estoppel applies only if there is a “subsequent proceeding.” Accord: LaChance v. McKown, 649 S.W.2d 658 (Tex.App.—Texarkana 1983, writ ref’d n.r.e.); Aetna Life Ins. Co. v. Wells, 557 S.W.2d 144 (Tex.Civ.App.—San Antonio 1977), writ ref’d n.r.e., 566 S.W.2d 900 (Tex.1978).

Is this will contest, then, a subsequent proceeding or part of the same proceeding? In the early case of Stringfellow v. Early, 40 S.W. 871, 874 (Tex.Civ.App. 1897, writ dism’d), a suit to annul a will by prohibiting its probate, the court pointed out that the case “necessarily must be heard and tried in the proceeding in probate and in resistance thereto.” More recently, in Ladehoff v. Ladehoff, 436 S.W.2d 334, 337 (Tex.1968), the Supreme Court pointed out that “[a]n attack upon a probate judgment under Section 93 [of the Probate Code] is a method for making a direct attack which is in addition to the forms for direct attacks authorized by Sections 28 and 30, which are appellate in nature.”¹ A direct attack is, by necessity, part of the same proceeding. See generally, Hodges, Collateral Attacks on Judgments, 41 Tex.L.Rev. 163 (1962). Finally, it is obvious that Section 5 of the Probate Code² contemplates the joinder of the probate proceeding and the will contest in one action in order to resolve the contest. See Novak v. Stevens, 596 S.W.2d 848, 850-51 (Tex.1980).

We hold, therefore, that a will contest and the probate of the will are two parts of the same proceeding, and that inconsistent positions within that proceeding cannot be barred by the doctrine of judicial estoppel.

We are aware that the early Supreme Court case of Prather v. McClelland, 76 Tex. 574, 13 S.W. 543 (Tex.1890) seems to hold to the contrary. The Supreme Court in Prather based its decision on Article 1938 of the Revised Statutes of Texas. This provision later reappeared in Article 3358 of the Texas Civil Statutes (Vernon Sayles 1911)³ and was amended as Article 3433 in 1925.⁴

In 1955, the Fifty-fourth Legislature enacted an Act “to establish and adopt a probate code for the State of Texas.” This Act revised the statutes, validating certain proceedings under existing and prior statutes, and “repealing statutes and all laws or parts of laws in conflict with the code.” Tex.Prob.Code Ann. (appendix) (Vernon 1980). When the Texas Probate Code became effective January 1,1956, article 3433 was not included, although it was preserved in the appendix of the Code for “reference in connection with rights which accrued prior to January 1, 1956.” Tex. Prob.Code Ann. (appendix) (Vernon 1980). We conclude, therefore, that Prather is no longer the law in Texas and we decline to follow it.

It follows, from the foregoing discussion, that the trial court erred in granting the motion for summary judgment. No matter how contradictory her stances may be, Klein may contest the will she asked the court to probate. Point of error one is sustained. Points of error two and three are moot and will not be discussed.

The judgment is reversed and the case is remanded to the trial court.

1 . Section 93 of the Probate Code says:

After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward. Provided, however, that persons non compos mentis and minors shall have two years after the removal of their respective disabilities within which to institute such contest. Tex.Prob.Code Ann. § 93 (Vernon 1980).

2 . Section 5(c) of the probate code as pertinent here states:

... In contested probate matters, the judge of the constitutional county court may on his own motion, and shall on the motion of any party to the proceeding, transfer the proceeding to the statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, which may then hear the proceeding as if originally filed in such court. Tex.Prob.Code Ann. § 5(c) (Vernon 1980).

3 . Article 3358 states that “When a will has been probated, its provisions and directions shall be executed, unless the same are annulled or suspended by order of the court probating the same in a proceeding instituted for that purpose by some person interested in the estate.” Tex. Civ.Stat. art. 3358 (Vernon Sayles 1911) (amended 1925).

4 . Article 3358 was later renumerated as Article 3433 which states:

When a will has been probated, its provisions and directions shall be specifically executed, unless annulled or suspended by order of the court probating the same in a proceeding instituted for that purpose by some person interested in the estate. Such proceeding shall be by application in writing, filed with the clerk of the court, setting forth the objectionable provisions and directions in the will, and grounds of objections. Tex.Civ.Stat. art. 3433 (1925) (repealed 1955).