                                                                               ACCEPTED
                                                                          14-14-00291-CV
                                                            FOURTEENTH COURT OF APPEALS
                                                                        HOUSTON, TEXAS
                                                                    1/16/2015 12:02:47 PM
                                                                      CHRISTOPHER PRINE
                                                                                   CLERK

                    No. 14-14-00291-CV

   IN THE FOURTEENTH COURT OF APPEALS FOR FILED IN
                                    14th COURT OF APPEALS
               HOUSTON, TEXAS          HOUSTON, TEXAS
                                                  1/16/2015 12:02:47 PM
                                                  CHRISTOPHER A. PRINE
      Iona Grant, Lauretta Moss and Nannie    Johnson,     Clerk
                                              Appellants,
                              v.

                        Effie Collins,
                                              Appellee.


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


                BRIEF FOR APPELLEE


                           Michael Scott Thomas
                           State Bar No. 19861200
                           Thomas & Williams, L.L.P.
                           2626 S. Loop West, Suite 561
                           Houston, Texas 77054
                           (713) 665-8558
                           (713) 665-8562-Facsimile
                           mstlawyer@aol.com

                           ATTORNEYS FOR APPELLEE
              IDENTITY OF PARTIES AND COUNSEL
APPELLANTS:   Iona Grant, Lauretta Moss, and Nannie Johnson

COUNSEL:      Derek H. Deyon
              State Bar No. 24075862
              THE DEYON LAW GROUP, P.L.L.C.
              2211 Norfolk, Suite 600
              Houston, Texas 77098
              Telephone: (713) 418-7420
              Facsimile: (713) 714-8670

APPELLEE:     Effie Collins

COUNSEL:      Michael Scott Thomas
              State Bar No. 19861200
              THOMAS & WILLIAMS, L.L.P.
              2626 S. Loop West, Suite 561
              Houston, Texas 77054
              Telephone: (713) 665-8558
              Facsimile: (713) 665-8562

JUDGE:        The Honorable Mike Woods
              Probate Court No. 2, Harris County, Texas




                                 -i-
                                          TABLE OF CONTENTS
Identity of Parties and Counsel ...................................................................................i

Table of Contents ...................................................................................................... ii

Index of Authorities ................................................................................................. iii

Issues Presented ......................................................................................................... 1
Statement of the Case................................................................................................. 1-2

Statement of Facts ...................................................................................................... 2

Summary of Argument .............................................................................................. 2

Argument.................................................................................................................... 3
I.       There is no Genuine Issue of Material Fact That Decedent Lacked
         Testamentary Capacity on March 18, 2005. .................................................... 3
         A.        Standard of Review. .............................................................................. 3

         B.        Burden of Proof in Will Contest. .......................................................... 3-4

         C.        Appellant’s did not Present Competent Summary Judgment
                   Proof to Raise a Fact Isue on Testamentary Capacity. ......................... 4

                   1.        Testamentary Capacity................................................................ 4
                   2.        Negating Testamentary Capacity. ............................................... 4-5

                   3.        The Trial Court Properly Sustained Appellee’s
                             Objections to Appellant’s Summary Judgment Evidence
                             From Disinterested Witnessess ................................................... 5-6

                   4.        The Trial Court Properly Sustaind Appellee’s Objections
                             to Appellant’s Summary Judgment Evidence From
                             Interested Witnesses.................................................................... 6-8

Conclusion and Prayer ............................................................................................... 8

Certificate of Compliance .......................................................................................... 9
Certificate of Service ................................................................................................. 9


                                                           - ii -
                                       INDEX OF AUTHORITIES
Carr v. Radkey, 393 S.W.2d 806 (Tex. 1965) ..........................................................6
Casso v. Brand, 776 S.W.2d 551 (Tex. 1989) ..........................................................7
Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983) .................................................3
Dagley v. Haag Engineering Co., 18 S.W.3d 787 (Tex.App.--Houston [14th
     Dist.] 2000, no pet.) .........................................................................................3
Evans v. Allen, 358 S.W.2d 358 (Tex.App.--Houston [1st Dist.] 2011, no
     pet.) .................................................................................................................4
In re Price's Estate, 375 S.W.2d 900 (Tex. 1964) .....................................................3
Lee. v. Lee, 424 S.W.2d 609 (Tex. 1968) ..................................................................5
McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. 2003) ...................................................6
Lyons v. Lindsey Morden Claims Mgm't., 985 S.W.2d 865 (Tex. App.--El
      Paso 1998, no pet.)...........................................................................................8
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217 (Tex. 1999) ......................................3

                                         STATUTES AND RULES

Rules
Tex. R. App. P. 166a(c) .............................................................................................7
Statutes
Tex. Estates Code § 256.152(a)(2)(A) .......................................................................3
Tex. Estates Code § 256.152(a)(2)(B) .......................................................................3




                                                           - iii -
                             ISSUES PRESENTED
1.    Whether there is no genuine issue of material fact that the Decedent lacked
      testamentary capacity on March 18, 2005.

                         STATEMENT OF THE CASE
      On August 27, 2012, Appellee filed an application for probate of will as a

muniment of title for Ruth Bailey, Decedent, seeking to probate a will dated March

23, 2004 (“Application 1”)(CR 6-18). On October 9, 2012, Appellants filed a will

contest to Application 1, asserting a general denial (CR 21-23). On September 28,

2012, Appellant Iona Grant filed an application to probate will and for issuance of

letters testamentary for Ruth Bailey, Decedent, seeking to probate a will dated

March 18, 2005, in Cause No. 416,559, In The Estate of Ruth Bailey, Deceased,

Probate Court No. 4, Harris County, Texas (“Application 2”)(CR 28-30). On

October 31, 2012, the cases were consolidated (CR 27).

      On September 30, 2013, Appellee filed a will contest to Application 2,

asserting lack of testamentary intent, testamentary capacity and undue influence

(CR 48-50). On October 2, 2013, Appellee filed a traditional motion for partial

summary judgment (CR 51-60). On October 27, 2013, Appellants filed their

response to traditional motion for partial summary judgment (CR 62-79). On

November 1, 2013, Appellee filed her reply, asserting objections to the Affidavits

of Dorothy Scott, Brenda Addison, Iona Grant and Loretta Moss (CR 80-90).




                                       -1 -
      On November 5, 2013, the trial court signed an Order granting partial

summary judgment, in favor of Appellee (CR 91). On April 14, 2014, Appellants

filed their notice of appeal. (CR 167-168).

                            STATEMENT OF FACTS
      On November 5, 2013, a hearing was held on Appellee’s traditional motion

for partial summary judgment (1 RR 1). Appellee objected to the affidavits of

Dorothy Scott and Brenda Addison ( 1 RR 6-7). Appellee also objected to the

affidavits of Iona Grant and Lauretta Moss, interested witnesses (1 RR 7-8).The

trial court sustained Appellee’s objections to the affidavits and granted the motion

for partial summary judgment (1 RR 16-17).

                         SUMMARY OF ARGUMENT
      Appellant put forth proper summary judgment evidence that Ruth Bailey,

Decedent, lacked the requisite testamentary capacity for a valid will on March 18,

2005. Additionally, the trial court sustained a proper objection to the affidavits of

Dorothy Scott, Brenda Addison, Iona Grant and Lauretta Moss, as such affidavits

were conclusory, and not based on facts that would create a fact issue on

testamentary capacity.

      Based on the foregoing, Appellee requests that the judgment of the trial

court be affirmed.




                                         -2 -
                                    ARGUMENT

I.    There is no genuine issue of material fact that the Decedent lacked
      testamentary capacity on March 18, 2005.
      A.     Standard of Review.
      To prevail on a motion for summary judgment, the movant must establish

that no material fact issue exists and it is entitled to judgment as a matter of law.

Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999). Once the movant

establishes that no genuine issue of material fact exists regarding an element of the

non-movant’s claim, the non-movant must present competent summary judgment

evidence raising a fact issue on that element. Dagley v. Haag Engineering Co., 18

S.W.3d 787, 789 (Tex.App.—Houston [14th Dist.] 2000, no. pet.).

      B.     Burden of Proof in Will Contest.

      If a will contest is filed before the will is admitted to probate, the proponent

of the will has the burden of proof on the issues of formalities of execution. TEX.

ESTATES C. § 256.152(a)(2)(A). If the issue of testamentary capacity is raised

before the will is offered for probate, the proponent of the will has the burden of

establishing that the Testator was of sound mind. TEX. ESTATES C. §

256.152(a)(2)(B); Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex. 1983). There is

no presumption that a person is of sound mind at the time she executes the will. In

re Price’s Estate, 375 S.W.2d 900, 903 (Tex. 1964). Accordingly, Appellants bear




                                          -3 -
the burden of proving that the Decedent had testamentary capacity on March 18,

2005.

        C.    Appellant’s did not Present Competent Summary Judgment
              Proof to Raise a Fact Issue on Testamentary Capacity.

              1.     Testamentary Capacity.

        A testator has “testamentary capacity” if she has sufficient mental ability, at

the time the will is executed, to understand the business in which the testator is

engaged; the effect of her act in making the will; the general nature and extent of

her property; she must know her next of kin and the natural objects of her bounty,

and have sufficient memory to collect in her mind the elements of the business to

be transacted, to hold those elements long enough t perceive their obvious relation

to each other, and to form a reasonable judgment about them. Evans v. Allen, 358

S.W.2d 358, 362 (Tex.App.–Houston [1st Dist.] 2011, no pet.).

              2.     Negating Testamentary Capacity.

        Appellee would show that on August 3, 2004, Dr. Shayna P. Lee rendered a

capacity assessment in Cause No. 345,822, In the Guardianship of Ruth Homer

Bailey, an Incapacitated Person, In the Probate Court No. 4, Harris County, Texas

(the “Guardianship Proceeding”)(CR 56-58). The capacity assessment reflects that

the nature of the impairment is most likely due to the dementia process, that the

degree of the incapacity is severe and that the dementia process is not expected to

improve, and will worsen over time. Additionally, that due to her mental health


                                           -4 -
that is consistent with dementia, she is completely unable to communicate any

responsible decisions. Id.

      The proper inquiry in deciding testamentary incapacity is the condition of

the testator’s mind on the day the will was executed. Lee v. Lee, 424 S.W.2d 609,

611 (Tex. 1968). However, evidence of incompetency at other times has probative

force only if it demonstrates that the condition persists and has some probability of

being the same condition which obtained at the time of the making of the will. Id.

The evidence as outlined in Dr. Lee’s capacity assessment establishes that prior to

the execution of the Will dated March 18, 2005, the Decedent had an impairment

based on dementia, that it was severe, that it would not improve and would worsen

over time.

              3.    The Trial Court Properly Sustained Appellee’s Objections to
                    Appellant’s Summary Judgment Evidence from Disinterested
                    Witnesses.

      Appellant’s summary judgment proof included the Affidavit of Dorothy

Scott, a purported disinterested witness. Specifically, Ms. Scott’s Affidavit states:

      • “[M]rs. Bailey knew where she was and that she was there to
      sign (Execute) her Will ...”

      • “[M]rs. Bailey recognized my voice and my husband’s voice and knew we
      were there to be witnesses to her sign (Execute) her Will.”

      • “... she appeared fine to me in my opinion on this day at that time on
      March 18, 2005 when she signed (Executed) her Will in my presence.”

(CR 71-72).


                                         -5 -
          Appellant’s summary judgment proof also includes the Affidavit of Brenda

Addison, a purported disinterested witness. Specifically, Ms. Addison’s Affidavit

states:

          • “[M]rs. Bailey seemed fine in my opinion at that time on March 18, 2005
          when she signed (Executed) her Will. I had no reason to believe she was not
          mental capable to signing (Executing) her Will or that she did not know
          what she was doing.”

(CR 77-78).

          Conclusory statements that are not supported by facts are not proper

summary judgment proof. McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex.

2003). A lay witness may not be asked whether a testator had testamentary

capacity, but he may testify that a person is of sound mind if a proper predicate is

laid. Carr v. Radkey, 393 S.W.2d 806, 813 (Tex. 1965). A witness may be asked

whether the testator knew the objects of his bounty, the nature of the transaction in

which he was engaged, the nature and extent of his estate, and similar questions.

Id. Appellee properly objected to and moved to strike the affidavit testimony of

Dorothy Scott and Brenda Addison (CR 80-90; 1 RR 6-7). The trial court sustained

Appellee’s objections (1 RR 16-17).

          4.    The Trial Court Properly Sustained Appellee’s Objections to
                Appellant’s Summary Judgment Evidence from Interested Witnesses.

          Appellant’s summary judgment proof includes the Affidavit of Appellant

Iona Grant, an interested witness. Specifically, Ms. Grant’s Affidavit states:




                                           -6 -
      • “[M]y mother knew she was there to sign (Execute) her Will ...”

      • “[M]y mother knew what she wanted and how to distribute her property.”

      • “Mother was fine in my opinion to know her wishes and what to do with
      her property on March 18, 2005 when she signed (Executed) her Will in our
      presence.”

(CR 73-74).

      Appellant’s summary judgment proof includes the Affidavit of Appellant

Lauretta Moss, an interested witness. Specifically, Ms. Moss’ Affidavit states:

      • “[M]y mother knew she was there to sign (Execute) her Will ...”

      • “[M]other knew what she wanted and how to distribute her property.”

      • “Mother was fine in my opinion to know her wishes and what to do with
      her property on March 18, 2005 when she signed (Executed) her Will in our
      presence.”

(CR 75-76).

      To establish facts through an interested witness, the testimony must be clear,

positive, direct, credible, free from contradiction, and uncontroverted even though

it could have been readily controverted. TEX. R. CIV. P. 166a(c); Casso v. Brand,

776 S.W.2d 551, 558 (Tex. 1989). The affidavits of Iona Grant and Lauretta Moss

contain conclusory statements, not facts. The affidavits of Iona Grant and Lauretta

Moss contain declarations that are not easily controverted.

      Additionally, the Affidavit of Lauretta Moss contradicts sworn statements

she made in the Guardianship Proceeding (CR 85-89). When a party’s pleadings




                                        -7 -
contain statements admitting facts or conclusions that directly contradict the

party’s own theory of recovery or defense, the pleadings may constitute summary

judgment proof for the other party. Lyons v. Lindsey Morden Claims

Management, 985 S.W.2d 86, 92 (Tex.App.–El Paso 1998, no pet.). Appellee

properly objected to and moved to strike the affidavit testimony of Iona Grant and

Lauretta Moss (CR 80-90; 1 RR 7-8). The trial court sustained Appellee’s

objections (1 RR 16-17).

                         CONCLUSION AND PRAYER
      WHEREFORE, PREMISES CONSIDERED, Effie Collins, Appellee,

respectfully requests this Court to affirm the judgment of the trial court, and for

such other and further relief to which Appellee may show herself justly entitled.

                                       Respectfully submitted,

                                       /s/ Michael Scott Thomas
                                       MICHAEL SCOTT THOMAS
                                       State Bar No. 19861200
                                       THOMAS & WILLIAMS, L.L.P.
                                       2626 S. Loop West, Suite 561
                                       Houston, Texas 77054
                                       (713) 665-8558
                                       (713) 665-8562-Facsimile
                                       mstlawyer@aol.com

                                       ATTORNEYS FOR APPELLEE




                                         -8 -
                     CERTIFICATE OF COMPLIANCE
      I certify that pursuant to Tex.R.App. P. 9.4(i)(3), this document contains
2,224 words.

                                    /s/ Michael Scott Thomas
                                    MICHAEL SCOTT THOMAS

                        CERTIFICATE OF SERVICE
      I certify that a true and correct copy of Appellee’s Brief was served via
email at ddeyon@deyonlawgroup.com to Mr. Derek H. Deyon, THE DEYON
LAW GROUP, P.L.L.C. 2211 Norfolk, Suite 600, Houston, Texas 77098 16th day
of January, 2015.

                                    /s/ Michael Scott Thomas
                                    MICHAEL SCOTT THOMAS




                                      -9 -
