                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00061-CV
        ______________________________


    EDWIN ROSCOE WILLIAMS, JR., Appellant

                          V.

        JAMES N. E. WILLIAMS, Appellee




   On Appeal from the County Court at Law No. 2
               Gregg County, Texas
          Trial Court No. 94-000316-P




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                          MEMORANDUM OPINION

           Prior to his death in 1987, Edwin Roscoe Williams left his will “to an attorney in Houston

to be probated.” In 1994, Edwin’s brother James N. E. Williams discovered that the attorney had

not initiated probate proceedings. James filed the will, and it was probated as a muniment of title.

The will named James as administrator of the estate, bequeathed assets remaining after payment of

debt to children Audwin Glenn Williams and Jacqueline Kay Williams McClendon, and specified

that no provision was made to “any other child or children.” In addition, no assets were left to

Edwin’s wife.

           In 2010, Edwin’s son from a previous marriage, Edwin Roscoe1 Williams, Jr., filed a “will

contest and motion to set aside order admitting will for probate as a muniment of title.”

Roscoe’s contest alleged that the trial court lacked jurisdiction to admit the will to probate more

than four years after Edwin’s death. James asserted in a motion for summary judgment that

Roscoe’s collateral attack on the order admitting the will to probate, filed more than sixteen years

after the order, was barred by the statute of limitations. In response, Roscoe argued that the

discovery rule applied because James had fraudulently informed the court that Edwin had never

been divorced in the “proof of death and other facts.” Roscoe also alleged that the transfer of

assets was fraudulent because he had never received notice of the proceedings and because “the

Will was not self-proving on its face and [was] admitted based upon deliberate false information.”



1
    We refer to Edwin Roscoe Williams, Jr., as “Roscoe” to avoid confusion with the name of the decedent.

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Roscoe appeals the trial court’s order granting James’ summary judgment and ordering that

Roscoe take nothing by way of his claims.

I.     Standard of Review

       We review de novo the grant of a traditional motion for summary judgment. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a motion for summary

judgment, the movant must conclusively establish the absence of any genuine question of material

fact and that judgment is available as a matter of law. TEX. R. CIV. P. 166a(c); Browning v.

Prostok, 165 S.W.3d 336, 344 (Tex. 2005). A defendant moving for summary judgment must

conclusively negate at least one element of the plaintiff’s theory of recovery or plead and

conclusively establish each element of an affirmative defense. Centeq Realty, Inc. v. Siegler, 899

S.W.2d 195, 197 (Tex. 1995). If the defendant establishes his or her right to summary judgment,

the burden shifts to the plaintiff to raise a genuine issue of material fact. Id.

       The question on appeal here is not whether the summary judgment proof raises a fact issue

with reference to the essential elements of Roscoe’s cause of action, but whether the summary

judgment proof establishes that James is entitled to judgment as a matter of law. French v. Gill,

252 S.W.3d 748, 751 (Tex. App.—Texarkana 2008, pet. denied) (citing Gonzalez v. Mission Am.

Ins. Co., 795 S.W.2d 734, 736 (Tex. 1990)). In reviewing a summary judgment, we take as true

all evidence favorable to the nonmovant, indulge every reasonable inference in favor of the

nonmovant, and resolve any doubts in the nonmovant’s favor. Sudan v. Sudan, 199 S.W.3d 291,



                                                  3
292 (Tex. 2006). If the nonmovant asserts that the statute of limitations has been tolled, it

becomes the movant’s burden to “conclusively negate the tolling provision’s application” before

summary judgment may be awarded. French, 252 S.W.3d at 751 (quoting Allen v. Intercapital

Lodge Ltd. P’ship, 66 S.W.3d 351, 353 (Tex. App.—Houston [14th Dist.] 2001, pet. denied)).

II.    Application

       “No will shall be admitted to probate after the lapse of four years from the death of the

testator unless it be shown by proof that the party applying for such probate was not in default in

failing to present the same for probate within the four years aforesaid.” TEX. PROB. CODE ANN.

§ 73 (West 2003). Roscoe argued that the trial court erred in admitting the will for probate in

1994 without “proof that Defendant was not in default” and that, therefore, the court was without

jurisdiction to admit the will for probate. However, James averred in the “proof of death and

other facts” that Edwin’s will “was turned over to an attorney in Houston to be probated.

Applicant only recently discovered that no action had been taken by said attorney.” At the time

the court admitted the will for probate, it found James’ statement true and recited “that all the

necessary proof required for probate of the will” was made. James’ contention sought to

demonstrate that he was not in default in failing to present the will for probate within four years of

Edwin’s death because he believed the will would be probated by the attorney. The contention

was not contested prior to the order admitting the will for probate as a muniment of title.




                                                  4
        The argument was not raised until 2010 in the form of a will contest.2 Section 93 of the

Texas Probate Code provides:

        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 incapacitated persons shall have two years after the
        removal of their disabilities within which to institute such contest.

TEX. PROB. CODE ANN. § 93 (West 2003). The “will contest and motion to set aside order

admitting will for probate” was filed outside the permissible statute of limitations.

        Roscoe alleged that the Section 93 limitations period was tolled by fraudulent statements

made by James in the proof of death and other facts. The discovery rule applies in cases of fraud,

fraudulent concealment, and in other cases where the nature of the injury is inherently

undiscoverable. Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997). However, Roscoe

testified under oath that he discovered the existence of the will “between 1990 and 2000.” He

further admitted that he had “spoke[n] to an attorney that said [Edwin] turned [the will] over to

him.” An action to set aside a final probate of a will as a muniment of title cannot be maintained

when the action is not filed until sixteen years after probate of the will and approximately ten years

after the plaintiff discovered that the will had been probated. Fortinberry v. Fortinberry, 326


2
 Roscoe’s “will contest and motion to set aside order admitting will for probate,” which was filed under the same
cause number as the probate proceeding, was not a collateral attack upon the order. A. & M. College of Tex. v. Guinn,
280 S.W.2d 373, 377 (Tex. Civ. App.—Austin 1955, writ ref’d n.r.e.). Therefore, this is a direct, not a collateral,
proceeding. Id.

                                                         5
S.W.2d 717, 720 (Tex. Civ. App.—Waco 1959, writ ref’d n.r.e.).

       We find that James established his entitlement to summary judgment as a matter of law.

III.   Conclusion

       We affirm the trial court’s judgment.



                                                   Jack Carter
                                                   Justice

Date Submitted:       November 21, 2011
Date Decided:         December 14, 2011




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