                                    NO. 07-09-0261-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                         PANEL E

                                    FEBRUARY 3, 2011




                      DALE WINFIELD, GLORIA JOHNSON, AND
                         JAMES WINFIELD, APPELLANTS

                                              v.

                           KAREN SUE PIETSCH, APPELLEE



             FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

                NO. 60,121-B; HONORABLE JOHN B. BOARD, JUDGE




Before CAMPBELL, PIRTLE, JJ. and BOYD, S.J.1


                                MEMORANDUM OPINION

      Appellants, Dale Winfield, Gloria Johnson, and James Winfield (Winfields),

appeal from a take-nothing judgment granted in favor of Appellee, Karen Sue Pietsch,

pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure, in an action seeking to

1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't
Code Ann. § 75.002(a)(1) (West 2005).
set aside the unprobated will of their mother, Jena Beth Winfield, and a general

warranty deed transferring property from Jena to Pietsch, Jena's daughter.                               The

Winfields assert the trial court erred by (1) granting summary judgment in favor of

Pietsch and (2) denying Winfields' motion for new trial. The Winfields also assert (3)

this Court erred by earlier dismissing for want of jurisdiction that part of their appeal

pertaining to the trial court's denial of their claims pertaining to Jena's unprobated will.2

We affirm.


                                              Background


        On June 18, 2008, the Winfields filed an original petition seeking: (1) to set aside

Jena's unprobated will and a general warranty deed alleging the instruments were

obtained by undue influence and/or fraud; (2) a declaratory judgment establishing the

rights of the parties to the property in question; (3) damages for tortious conduct; and

(4) recovery of reasonable and necessary attorney's fees. Pietsch answered with a

general denial and special exception asserting the trial court lacked jurisdiction over the

unprobated will claims.




2
 The Winfields originally sought to "set aside" an unprobated will allegedly executed by Jena. The trial
court denied relief and the Winfields appealed. Pietsch moved to dismiss that portion of the appeal
pertaining to the unprobated will based on a lack of subject matter jurisdiction. We agreed and on
October 2, 2009, dismissed this appeal as it pertained to the validity of that will. Subsequent to the
perfection of this appeal, that will was admitted to probate in Cause No. 2009-191-P in the County Court
in and for Randall County. The Winfields did not contest the admission of that will, nor did they appeal
the order admitting it to probate. Instead, they maintain that they did not have actual notice of the
proceedings sufficient to contest the will when presented to the County Court. They do not address
whether they had notice sufficient to contest the probate of that will by direct appeal, restricted appeal, or
bill of review.

                                                      2
       I.     No-Evidence Motion for Summary Judgment


       On March 9, 2009, Pietsch filed a no-evidence motion for summary judgment.

The Winfields responded with three affidavits. Dale Winfield's affidavit stated that, after

their father's death, Jena indicated that she wanted her property to benefit all of her

children and grandchildren and stated she wanted to benefit from her house during her

lifetime. He also stated that Jena's handwritten journal indicated she had great love and

affection for her daughter, Gloria Johnson, whom he believed Jena wanted to include in

any transfer of her house. He stated that, during the time period wherein Jena decided

to execute a will leaving all her property to Pietsch while excluding the Winfields and

transferring her house to Pietsch, Jena was an elderly woman with "a propensity to

engage in over consumption of wine" and "was taking pain medication."


       Richard Naylor, the Winfields' counsel, executed an affidavit authenticating

Jena's handwritten journal wherein she expressed affection for all her children and

Shayla Coon executed an affidavit authenticating the time records of Bill Cornett, Jena's

attorney. The billing records disclosed the following information, in pertinent part:


       10/26/05--Drafted Special Warranty Deed, called our client to see if she
       wanted a life estate in home. She said she did, but she doesn't really
       understand exactly what documents she needs to have prepared. She
       was just wanting her daughters (sic) name on the deed with hers, actually
       both of her daughters (sic) names, Karen Sue Pietsch and Gloria Jean
       Johnson.
       11/05/05--Prepared general warranty deed.
       12/15/05--Conference with Jena Beth Winfield, discussed warranty deed.
       Prepared deed per Jena's instructions leaving off Gloria Johnson.



                                             3
       On April 22, 2009, Pietsch objected to evidence filed in support of the Winfields’

response, i.e., the affidavits of Dale Winfield and Naylor's record affidavit appending

portions of Jena's diary or journal. Pietsch objected to Dale Winfield's affidavit as being

conclusory---containing speculation, legal argument, and unsubstantiated opinions

without any supporting factual basis. She asserted Jena's diary or journal entries and

Dale Winfield's affidavit had no relevance to Jena's mental state or thought processes at

the time the deed was executed. Rather, Pietsch asserted the only evidence offered by

the Winfields of Jena's mental capacity at the time of the execution of the general

warranty deed was Bill Cornett's time records wherein he indicated he had a conference

with Jena, discussed the warranty deed, and prepared the deed in question as per her

instructions.


       On May 4, 2009, the trial court issued its order granting summary judgment in

Pietsch's favor and stated, in pertinent part, as follows:


       The Defendant having filed objections to the evidence offered in response
       to such motion, the Court finds that the objections filed by Defendant to
       the Evidence offered by Plaintiffs in Response to her no evidence motion
       for summary judgment are well taken and are hereby sustained, and
       The Court finds that Defendant's motion for summary judgment is well
       taken and the same is hereby granted, judgment entered that Plaintiffs,
       [the Winfields] take nothing by their cause of action, and that Defendant
       recover her costs of court expended herein from such Plaintiffs.
       From which judgment execution may issue. All other relief not expressly
       granted herein is hereby expressly denied.




                                              4
       II.    Motion for New Trial


       On May 27, 2009, the Winfields filed a motion for new trial based upon "newly

discovered evidence" and attached the affidavits by Gloria Johnson and Yong Menkhoff.

Gloria Johnson stated in her affidavit that, on May 19, 2009, she "had occasion to visit

with Yong Menkhoff a hair stylist who had done [her] hair and [her] mother's . . . hair for

many years prior to [her] mother's death." She further stated that, during the visit, she

"learned for the first time that [Menkhoff] continued to cut/style [her] mother's hair until

about one year before [her] mother's death."


       In her affidavit, Yong Menkhoff stated that she styled Jena's hair from 1994

through 2008. During that time, Menkhoff became "well familiar with her." They "often

discussed her children, family and what she would like to do with her property especially

her house." After Jena's husband died, Jena told Menkhoff that she wanted her house

to pass to her daughter, Gloria Johnson. In addition, Menkhoff noticed a change in

Jena's behavior after her husband died, i.e., Jena began slurring her words, prompting

Menkhoff to suggest that Jena see a doctor to find out if she was being over medicated.


       Thereafter, the Winfields’ motion for new trial was overruled by operation of law

seventy-five days after the trial court signed its order granting summary judgment. See

Tex. R. Civ. P. 329b(c); Herrera v. Seton Northwest Hospital, 212 S.W.3d 452, 462

(Tex.App.--Austin 2006, no pet.). This appeal followed.




                                             5
       III.   Jurisdiction


       On September 4, 2009, Pietsch filed a motion to dismiss the Winfields' appeal for

want of jurisdiction asserting this Court lacked jurisdiction to hear the Winfields' appeal

related to their claims pertaining to Jena's will. Pietsch also asserted that the Winfields'

claims related to the general warranty deed were moot because Jena's will divested the

Winfields of any interest in Jena's estate and they failed to contest the admission of her

will in a subsequently filed probate proceeding. In a per curiam ruling, as to those

claims pertaining to the validity of Jena's will, this Court vacated the judgment of the trial

court and dismissed that portion of this appeal for want of jurisdiction.


                                         Discussion


       The Winfields assert summary judgment in Pietsch's favor was improper because

their evidence raised a fact issue whether Pietsch exerted an undue influence over

Jena, or defrauded the Winfields, by obtaining Jena's signature on the general warranty

deed conveying her residence to Pietsch, to the exclusion of the Winfields. They also

assert the trial court erred in denying their motion for new trial. Finally, the Winfields

urge this Court to reverse rather than vacate an "implied" ruling by the trial court on

Pietsch's special exception contained in her answer that asserted the trial court lacked

jurisdiction over the Winfields’ will challenge.




                                              6
       I.     No-Evidence Summary Judgment


       A.     Standard of Review


       Because Pietsch's summary judgment motion was a no-evidence motion, we

consider the evidence in a light most favorable to the non-movant; King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 750 (Tex. 2003), cert. denied, 54 U.S. 1030, 124 S.Ct.

2097, 158 L.Ed.2d 711 (2004), while disregarding all contrary evidence and inferences.

Id. at 751 (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997)). "A no evidence point will be sustained when (a) there is a complete absence of

vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the

only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is

no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite

of the vital fact." Id. In sum, a no-evidence summary judgment is improperly granted if

the respondent brings forth more than a scintilla of probative evidence to raise a

genuine issue of material fact.       Tex. R. Civ. P. 166a(i); Wal-Mart Stores, Inc. v.

Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002).3


       B.     Undue Influence and Fraud


       The Winfields have the burden of proving undue influence was exerted in

connection with the execution of the general warranty deed. In re Estate of Woods, 542


3
 Less than a scintilla exists when the evidence is "so weak as to do no more than create a mere
surmise or suspicion" of a fact. King Ranch, 118 S.W.3d at 751 (citing Kindred v. Con/Chem,
Inc., 650 S.W.2d 61, 63 (Tex. 1983)). More than a scintilla of evidence exists when the
evidence "rises to a level that would enable more reasonable and fair-minded people to differ in
their conclusions." Id. (citing Merrell Dow Pharms., 953 S.W.2d at 711)).

                                               7
S.W.2d 845, 847 (Tex. 1976). Before an instrument may be set aside on grounds of

undue influence, the contestant must prove: (1) the existence and exertion of an

influence; (2) the effective operation of such influence so as to subvert or overpower the

mind of the person at the time the person is executing the instrument; and (3) the

execution of the instrument which the maker thereof would not have executed but for

such influence. Id. (quoting Rothermel v. Duncan, 369 S.W.2d 917, 921 (Tex. 1963)).


       As to their fraud claims, the Winfields also have the burden of proving fraud in

connection with the execution of the general warranty deed. King Ranch, 118 S.W.3d

at 751. The elements of fraud are: (1) that a material misrepresentation was made; (2)

the representation was false; (3) when the representation was made, the speaker knew

it was false or made it recklessly without the knowledge of the truth and as a positive

assertion; (4) the speaker made the representation with the intent that the other party

should act upon it; (5) the party acted in reliance on the representation; and (6) the party

thereby suffered injury. Aquaplex, Inc. v. Rancho La Valencia, 297 S.W.3d 768, 774

(Tex. 2009) (quoting In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001)).


       The Winfields submitted three affidavits in response to Pietsch's no-evidence

motion for summary judgment. Two of the affidavits were not considered by the trial

court due to relevancy and evidentiary objections. That is, the trial court sustained

Pietsch's objections that the affidavits were irrelevant to Jena's state of mind at the time

the deed was executed and were conclusory--containing speculation, legal arguments,

and unsubstantiated opinions.4          Thus, the only remaining affidavit supporting the

4
The Winfields did not appeal the trial court's evidentiary ruling.

                                                 8
Winfield's response was the affidavit of Shayla Coon authenticating the time records of

Bill Cornett, Jena's attorney, wherein Cornett indicated that, on November 26, 2005,

Jena asked him to draft a warranty deed with her name and the names of both her

daughters, Pietsch and Johnson, on the deed. And, on December 15, 2005, Cornett

had a conference with Jena to discuss the deed wherein he was instructed by Jena to

draft the deed "leaving off Gloria Johnson." This evidence merely indicates that, in the

space of about a month and a half, Jena changed her mind regarding whether or not

she wanted Johnson to be named on the deed. There was no evidence of Jena's state

of mind at the time she met with her attorney to finally draft and execute the deed.

Under these circumstances, we cannot say the Winfields raised a fact issue as to any

element of either action--undue influence or fraud.


       In order to find a fact issue exists, the Winfields assert that we should consider

Menkhoff's affidavit filed with their motion for new trial. That we cannot do. In summary

judgment proceedings, the Texas Rules of Civil Procedure state, in pertinent part, as

follows:


       Except on leave of court, the adverse party, not later than seven days
       prior to the day of the hearing may file and serve opposing affidavits or
       other written response . . . [and] [t]he judgment sought shall be rendered
       forthwith if . . . (ii) the pleadings, admissions, affidavits, stipulations of the
       parties . . . on file at the time of the hearing, or filed thereafter and before
       judgment with permission of the court, show that . . . there is no genuine
       issue as to any material fact and the moving party is entitled to judgment
       as a matter of law on issues expressly set out in the motion or in an
       answer or any other response. Issues not expressly presented to the trial
       court by written motion, answer or other response shall not be considered
       on appeal as grounds for reversal.
Tex. R. Civ. P. 166a(c); (emphasis supplied).


                                               9
       Menkhoff's affidavit was first filed with the Winfields' motion for new trial. The

affidavit was not on file at the time of the summary judgment hearing and the Winfields

never requested permission to file the affidavit prior to judgment. Therefore, having

been filed with the motion for new trial, Menkhoff's affidavit was not before the trial court

at the time it granted summary judgment. As a result, we cannot consider Menkhoff's

affidavit in our determination whether the Winfields raised an issue of fact precluding

summary judgment. White v. Wah, 789 S.W.2d 312, 319 (Tex.App.--Houston [1st Dist.]

1990, no writ).    See First Gibraltar Bank, FSB v. Farley, 895 S.W.2d 425, 430

(Tex.App.--San Antonio 1995, no writ). Accordingly, point of error one is overruled.


       II.    Motion for New Trial


       A.     Standard of Review


       Whether a motion for new trial will be granted or denied is generally a matter

addressed to the sound discretion of the trial court; Jackson v. Van Winkle, 660 S.W.2d

807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715,

721 (Tex. 2003), and when, as here, the motion is overruled by operation of law

pursuant to Rule 329b(c) of the Texas Rules of Civil Procedure, the question becomes

whether the trial court abused its discretion by allowing the motion to be overruled.

Herrera, 212 S.W.3d at 462 (citing Limestone Constr., Inc. v. Summit Commercial

Indus. Props., Inc., 143 S.W.3d 538, 542 (Tex.App.--Austin 2004, no pet.)). This is a

question of law. Jackson, 660 S.W.2d at 810.


       A trial court abuses its discretion when it acts in an arbitrary or unreasonable

manner, or it acts without reference to any guiding principles of law.           Downer v.
                                             10
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Moreover, every

reasonable presumption will be made in favor of a trial judge's denial of a party's motion

for a new trial. Jackson, 660 S.W.2d at 810; Rivera v. Countrywide Home Loans, Inc.,

262 S.W.3d 834, 844 (Tex.App.--Dallas 2008, no pet.).


       B.     The Winfields' Motion


       A party seeking a new trial on grounds of newly discovered evidence must

demonstrate to the trial court that (1) the evidence came to his or her knowledge after

the trial; (2) in the exercise of due diligence, the evidence could not have been

produced earlier; (3) the newly discovered evidence is not cumulative; and (4) the

evidence is so material that it would probably produce a different result in a new trial.

Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); Jackson, 660 S.W.2d

at 809. Assuming without deciding whether the Winfields satisfied the first three criteria,

we find the purported newly discovered evidence was not material and probably would

not have altered the trial court's decision to permit the Winfields' motion to be overruled

by operation of law pursuant to Rule 329b(c) of the Texas Rules of Civil Procedure.


       "Where the trial court would have excluded the 'newly discovered evidence' for

the same reasons it excluded other similar evidence during the proceedings, the trial

court does not abuse its discretion in denying the motion for new trial." Waffle House,

Inc., 313 S.W.3d at 313. See Rivera, 262 S.W.3d at 845. Like Dale Winfield's affidavit,

Menkhoff's affidavit indicates that, after Jena's husband died, Jena mentioned that she

wanted her house to pass to Johnson and was taking medication--possibly causing her

to slur her words.    Like Dale Winfield's affidavit, Menkhoff's affidavit also contains

                                            11
unsupported conclusions related to Jena's mental state.                  Further, Menkhoff's

observations were limited generally to behavior exhibited by Jena while she was at the

salon to get her hair done without any reference to Jena's state of mind at or around the

time she executed the general warranty deed. Thus, this purported newly discovered

evidence is consistent with evidence rejected by the trial judge during the summary

judgment proceedings, and is not so material that it would probably produce a different

result with regard to the summary judgment granted.5 Accordingly, we cannot say the

trial court abused its discretion by denying the Winfields' motion for new trial.

Accordingly, point of error two is overruled.


       III.   Motion to Dismiss--Subject Matter Jurisdiction


       The Winfields do not disagree with this Court's determination that the trial court

lacked subject matter jurisdiction over the Winfields’ challenge to Jena's will. Rather,

they contend that this Court erred by vacating the trial court's judgment due to a lack of

subject matter jurisdiction insofar as it pertained to the Winfields' will challenge instead




5
 Limestone Const., Inc. v. Summit Commercial Indus. Properties, Inc., 143 S.W.3d 538
(Tex.App.--Austin 2004, no pet.) is of no assistance to the Winfields. In Limestone, a default
summary judgment was granted against Summit by operation of law. Id. at 540. A new trial
was subsequently granted because Summit's attorney filed an affidavit indicating he had no
prior notice of the summary judgment motion or the hearing. Id. Being a default summary
judgment, the Limestone court did not apply the elements for determining whether any evidence
was newly discovered. Id. at 544-46. Rather, assuming the truth of the affidavit by Summit's
attorney, the Limestone court held that it need not consider any subsequent evidence offered by
Limestone refuting the affidavit's statements because Limestone did not request a hearing on
Summit's motion for new trial. Id. at 546-47. Here, assuming the truth of Menkhoff's affidavit,
her affidavit still does not offer any evidence of Jena's state of mind at or around the day she
executed the general warranty deed.

                                                12
of reversing the trial court's implied ruling erroneously denying Pietsch's jurisdictional

challenge.


       Importantly, the Winfields are mistaken in their assertion that the trial court's

summary judgment impliedly denied Pietsch's special exception to the jurisdiction of the

trial court contained in Pietsch's answer because the summary judgment stated that

"[a]ll other relief not expressly granted herein is hereby expressly denied."                To the

contrary, in the absence of any indication in the record that the trial court actually ruled

on the issue raised by the special exception, granting summary judgment does not

imply a ruling on a special exception; Tri-State Association of Credit Men v. Hinson, 144

S.W.2d 881, 882 (Tex. 1940); Franco v. Slavonic Mut. Fir. Ins. Ass'n, 154 S.W.3d 777,

784-85 (Tex.App.--Houston [14th Dist.] 2004, no pet.); Rosas v. Hatz, 147 S.W.3d 560,

562-63 (Tex.App.--Waco 2004, no pet.), even if the judgment includes the statement

that all relief not expressly granted is denied. In the Estate of J.W. Tyner, 292 S.W.3d

179, 185-86 (Tex.App.--Tyler 2009, no pet.). In the absence of a written order on the

special exception, the special exception is waived. Galien v. Washington Mutual Home

Loans, Inc., 209 S.W.3d 856, 862 (Tex.App.--Texarkana 2006, no pet.).6 Here, there is



6
 At oral argument, Winfields' counsel asserted that, in failing to bring her special exception
before the trial court, Pietsch waived any objection she might have had to the trial court and/or
this Court asserting subject matter jurisdiction over the Winfields' will challenge. Although
Pietsch waived any remedy pursuant to her special exception before the trial court by
proceeding to judgment without bringing the special exception to the trial court's attention, this
waiver did not vest the trial court with jurisdiction, nor did it prevent her from subsequently filing
a motion to dismiss on appeal premised on a lack of subject matter jurisdiction. Subject matter
jurisdiction is fundamental; Federal Underwriters Exchange v. Pugh, 174 S.W.2d 598, 600 (Tex.
1943), cannot be waived; In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex.
2009) (citing Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008)), and can be raised at any
time. Tex. Ass'n of Bus. v. Tex Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993).

                                                 13
no evidence in the record that Pietsch either brought her special exception to the trial

court's attention or that the trial court ruled on any special exception.


       When a lower court lacks subject matter jurisdiction to hear a particular claim that

is brought up on appeal, an appellate court is empowered to dispose of the claim on

appeal by vacating the trial court's judgment and dismissing the case. Tex. R. App. P.

43.2(e). See generally Marshal v. Housing Authority of the City of San Antonio, 198

S.W.3d 782, 790 (Tex. 2006) (when subject matter jurisdiction was lacking, Supreme

Court vacated the judgments of the court of appeals and trial court and dismissed the

case). See also Brown v. Fullenweider, 52 S.W.3d 169, 171 (Tex. 2001); Patterson v.

Planned Parenthood of Houston and Southeast Texas, Inc., 971 S.W.2d 439, 444 (Tex.

1998). Further, when the trial court lacked subject matter jurisdiction over a portion of

the claims asserted on appeal, an accepted method of disposition on appeal is to

vacate only those portions of the lower court's judgment that are affected and dismiss

the claims over which the appellate court lacks jurisdiction. See Brooks v. Northglen

Association, 141 S.W.3d 158, 164 (Tex. 2003).            Having considered the Winfields'

contentions, we are unpersuaded that the appropriate disposition of Pietsch's motion to

dismiss for lack of subject matter jurisdiction would have been to reverse the trial court's

order of summary judgment rather than vacate the judgment only as to those claims

pertaining to the validity of Jena's will and consider, on appeal, those claims over which

the trial court and this Court had subject matter jurisdiction. Accordingly, point of error

three is overruled.




                                             14
                                Conclusion


The trial court’s judgment is affirmed.




                                           Patrick A. Pirtle
                                               Justice




                                      15
