Affirmed and Memorandum Opinion filed July 21, 2015.




                                       In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00291-CV

             IN THE ESTATE OF RUTH BAILEY, DECEASED


                    On Appeal from the Probate Court No. 2
                            Harris County, Texas
                        Trial Court Cause No. 415,772

                 MEMORANDUM                      OPINION


      In this appeal from a will contest, the appellants contend that the trial court
erred in granting summary judgment against them, because they raised genuine
issues of material fact regarding the deceased’s testamentary capacity. Finding no
error in the judgment, we affirm.

                                    I. BACKGROUND

      Ruth Bailey died in 2008 and was survived by four daughters: Iona Grant,
Loretta Moss, Nannie Johnson, and Effie Collins. Grant sought to probate a will
dated March 18, 2005, and Collins contested the will on the ground, inter alia, that
Bailey lacked testamentary capacity on the date the will was executed. Collins
also sought to probate an earlier will, and her sisters contested her application. The
two actions were consolidated, but in this appeal, the parties discuss only the
rulings on Grant’s application to probate the 2005 will.

       Collins filed a traditional motion for partial summary judgment on the
ground that Bailey lacked testamentary capacity on the date that the 2005 will was
executed. The motion was supported by a certified copy of a capacity assessment
performed by Dr. Shayna P. Lee on August 3, 2004 and filed in a guardianship
proceeding concerning Bailey. Dr. Lee diagnosed Bailey with depression and
dementia, and stated that the patient was severely incapacitated, requiring round-
the-clock care except when sleeping. Dr. Lee reported that Baily “was unaware of
the day and year, the place, or the nature of the evaluation”; that “[h]er memory
was very poor for remote, recent and immediate recall”; and that Bailey “cannot
answer any questions that are relative to her history and life.” Dr. Lee further
stated that Bailey “is completely unable to communicate any responsible
decisions,” and that “the dementia process is not expected to improve, and will
worsen over time.”

       Grant, Moss, and Johnson filed a response to the summary-judgment motion
and attached the affidavits of Grant, Moss, and two disinterested individuals, each
of whom was present when Bailey executed the 2005 will. The trial court granted
Collins’s motion for partial summary judgment, and ultimately rendered judgment
in Collins’s favor on her application to probate an earlier will. Grant, Moss, and
Johnson challenge the ruling on the partial summary judgment, on which the final
judgment was partially based.1


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         Specifically, the trial court noted in the final judgment that the 2004 will, which was
offered for probate by Collins, had not been revoked, i.e., by the 2005 will that Grant
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                                II. STANDARD OF REVIEW

       A movant for traditional summary judgment has the burden of showing that
there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors,
Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).           If the movant initially
establishes a right to summary judgment on the issues expressly presented in the
motion, then the burden shifts to the nonmovant to present to the trial court any
issues or evidence that would preclude summary judgment. See City of Houston v.
Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). In considering
grounds for reversal, we are limited to those grounds expressly set forth in the
summary-judgment motion, answers, or other responses, and may not rely on
grounds raised in the appellate briefs or summary-judgment evidence.              See
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). We
then review the summary judgment de novo, considering all the evidence in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if a reasonable factfinder could, and disregarding contrary evidence
unless a reasonable factfinder could not. See Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006).

                             III. TESTAMENTARY CAPACITY

       In a will contest on the ground that the testator lacked testamentary capacity,
the relevant inquiry focuses on the condition of the testator’s mind on the day the
will was executed. See Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968). A prima
facie case of incapacity can be established by evidence that the testator was
incompetent at other times, but “only that evidence of incompetency at other times
has probative force which demonstrates that that condition persists and ‘has some

unsuccessfully sought to probate.

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probability of being the same condition which obtained at the time of the will[’]s
making . . . .’” Id. (quoting 1 MCCORMICK & RAY, TEXAS LAW OF EVIDENCE § 896
(2d ed. 1956)); see also Evans v. Allen, 358 S.W.3d 358, 367 (Tex. App.—Houston
[1st Dist.] 2011, no pet.) (“We consider this evidence ‘if it demonstrates that a
condition affecting the individual’s testamentary capacity was persistent and likely
present at the time the will was executed.’” (quoting Bracewell v. Bracewell, 20
S.W.3d 14, 22 (Tex. App.—Houston [14th Dist.] 2000, no pet.))).

      Collins presented such evidence in the form of Dr. Lee’s capacity
assessment. This evidence was sufficient to meet Collins’s summary-judgment
burden, and the appellants do not contend otherwise. Thus, the burden shifted to
them to produce evidence sufficient to raise a genuine issue of material fact.

      In the sole issue presented in this appeal, Grant, Moss, and Johnson contend
that the four affidavits they produced in response to Collins’s summary-judgment
motion contained evidence sufficient to raise a genuine issue of material fact
regarding Bailey’s testamentary capacity on the day that she executed the will.
They fail to mention, however, that the trial court sustained Collins’s objections to
all four affidavits. Specifically, Collins objected that all four affidavits were
conclusory.   See In re Lipsky, 460 S.W.3d 579, 592–93 (Tex. 2015) (orig.
proceeding) (explaining that conclusory affidavits do not create fact questions and
are insufficient to defeat summary judgment). Collins additionally objected that
the affidavits of interested witnesses Grant and Moss contained declarations that
were not of the kind that is capable of being readily controverted, and that Moss’s
affidavit contradicted the sworn statements that Moss made in Bailey’s
guardianship proceeding. Cf. TEX. R. CIV. P. 166a(c) (“A summary judgment may
be based on uncontroverted testimonial evidence of an interested witness . . . if the
evidence is clear, positive and direct, otherwise credible and free from

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contradictions and inconsistencies, and could have been readily controverted.”).

      It is well-established that we cannot consider evidence that was excluded by
the trial court unless that evidentiary ruling is timely and successfully challenged
on appeal. See, e.g., Walker v. Schion, 420 S.W.3d 454, 457–58 (Tex. App.—
Houston [14th Dist.] 2014, no pet.) (“Because Walker does not challenge the ruling
sustaining Schion’s objections to his affidavit and excluding that evidence from the
trial court’s consideration, that evidence also is removed from our consideration.”);
Izaguirre v. Rivera, No. 14-12-00081-CV, 2012 WL 2814131, at *3 (Tex. App.—
Houston [14th Dist.] July 10, 2012, no pet.) (mem. op.) (“Because the trial court
granted Rivera’s motion striking all of Izaguirre’s summary-judgment evidence
and that ruling has not been challenged, no evidence supports Izaguirre’s appellate
arguments.”); In re K.R.S., No. 14-07-00080-CV, 2008 WL 2520812, at *2–3
(Tex. App.—Houston [14th Dist.] June 24, 2008, no pet.) (mem. op.) (holding that
the reviewing court must affirm summary judgment where the appellant waited
until it filed a reply brief to challenge one of the grounds on which the trial court
struck its summary-judgment evidence); York v. Samuel, No. 01-05-00549-CV,
2007 WL 1018364, at *3 (Tex. App.—Houston [1st Dist.] Apr. 5, 2007, pet.
denied) (mem. op.) (explaining that because the appellant failed to challenge the
trial court’s ruling that affidavits relied upon were hearsay, the evidence could not
be considered on appeal).

      Because the appellants have not challenged the trial court’s ruling sustaining
Collins’s objections to all of their summary-judgment evidence, there is no
evidence before us to support the appellants’ summary-judgment response. There
accordingly is no basis on which to conclude that the appellants have raised a
genuine issue of material fact regarding Bailey’s testamentary capacity.



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                                 IV. CONCLUSION

      For the foregoing reasons, we overrule the sole issue presented, and we
affirm the trial court’s judgment.




                                     /s/       Tracy Christopher
                                               Justice




Panel consists of Justices Christopher, Brown, and Wise.




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