        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-CA-00488-COA

VICTOR DAREN FROEMEL                                                      APPELLANT

v.

ESTATE OF MARY LOU FROEMEL,                                               APPELLEES
DECEASED, DANNY WILLIAMS, EXECUTOR,
KAREN COLE, DISABLED VETERANS OF
AMERICA, AND CHARLIE MCNEAL

DATE OF JUDGMENT:                        03/15/2017
TRIAL JUDGE:                             HON. PERCY L. LYNCHARD JR.
COURT FROM WHICH APPEALED:               DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                  DAVID MARK SLOCUM JR.
ATTORNEYS FOR APPELLEES:                 TAYLOR D. BUNTIN III
                                         JOHN THOMAS LAMAR JR.
                                         TAYLOR ALLISON HECK
                                         DISABLED VETERANS OF AMERICA
                                         (PRO SE)
NATURE OF THE CASE:                      CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION:                             AFFIRMED - 05/08/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.

      LEE, C.J., FOR THE COURT:

¶1.   In this will-contest case, we must decide whether the chancery court properly granted

summary judgment in favor of the beneficiaries. Finding no error, we affirm.

                                        FACTS

¶2.   On June 10, 2014, Mary Lou Froemel, a resident of DeSoto County, Mississippi,

executed her last will and testament. She was seventy-five-years old, widowed, and had one

adult son, Victor “Daren” Froemel, who lived in Illinois. According to affidavit testimony
from John T. Lamar Jr., the attorney who drafted the will, Mary Lou did not get along with

Daren, and they had numerous disagreements during the time leading up to the execution of

her will. Lamar’s affidavit stated that Mary Lou had told him that Daren attempted to “have

her committed on a couple of occasions” and that “she was extremely mad at her son to the

point that she came in and met with me and made the will.”

¶3.    When she executed the will, Mary Lou initialed each page and signed it. The will

contained an attestation clause with the signatures of two witnesses: Lamar and his secretary,

Judy W. Payne. Lamar and Payne also executed an affidavit which stated that Mary Lou had

signed the will in their presence, and that they had signed the will in the presence of each

other and Mary Lou. The attestation clause and affidavit also stated that Mary Lou declared

the will to be her last will and testament, and the affidavit stated that Mary Lou was “then

of sound, disposing mind and memory.”

¶4.    On December 29, 2015, Mary Lou died, and her will was admitted to probate in the

DeSoto County Chancery Court on January 5, 2016. In her will, Mary Lou left $20,000 to

her friend Karen Cole; $20,000 to the Disabled Veterans of America; and the residue of her

estate in trust for the benefit of Charlie McNeal, for the remainder of his natural life.

McNeal had performed some house-repair and yard work for Mary Lou and drove her on a

few occasions when she had broken her ankle. Upon McNeal’s death, any remaining assets

in trust were to go to Mary Lou’s grandson, Maxwell Lee Froemel—Daren’s son.

¶5.    On February 19, 2016, Daren filed a will contest, alleging that Mary Lou lacked

testamentary capacity at the time she executed the will. On September 13, 2016, Daren’s



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counsel propounded discovery to counsel for Mary Lou’s estate and received answers on

January 11, 2017. Then, on January 24, 2017, Cole and McNeal (the beneficiaries) filed a

motion for summary judgment, which was joined by the Estate through its executor, Danny

Williams, arguing that Mary Lou possessed testamentary capacity at the time she executed

the will at issue, that there was no genuine issue of material fact, and that summary judgment

should be granted. Attached to the beneficiaries’ motion for summary judgment were

affidavits from four individuals: Cole, McNeal, Lamar, and Payne, testifying as to Mary

Lou’s strong mental capacity at the time she executed the will.

¶6.    Daren responded to the motion, stating that discovery revealed Mary Lou had been

hospitalized from May 21, 2014 through May 25, 2014 for altered mental status, and on June

10, 2014—the day she executed her will—she held prescriptions for twenty-two medications,

including morphine. Daren argues that because of the recent hospitalization for altered

mental status and the possession of multiple prescriptions, there was a genuine issue of fact

regarding whether Mary Lou possessed testamentary capacity. Apart from this response,

Daren did not submit any affidavits or other evidence in support of his opposition to

summary judgment.

¶7.    Following a hearing on the motion, the chancellor granted the beneficiaries’ motion

for summary judgment. Daren now appeals.

                               STANDARD OF REVIEW

¶8.    This Court reviews the grant of summary judgment under a de novo standard.

Donovan v. Burwell, 199 So. 3d 725, 729 (¶10) (Miss. Ct. App. 2016) (citing Evans v.



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Howell, 121 So. 3d 919, 922 (¶14) (Miss. Ct. App. 2013)). Under Mississippi Rule of Civil

Procedure 56(c), summary judgment should be granted to the party seeking it, “if the

pleadings, depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” We review the evidence in the

light most favorable to the nonmoving party. Donovan, 199 So. 3d at 729 (¶10). However,

the party opposing summary judgment “may not rest upon the mere allegations or denials of

his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set

forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). “If he

does not so respond, summary judgment, if appropriate, shall be entered against him.” Id.

                                       DISCUSSION

       I.     Testamentary Capacity

¶9.    Daren argues that the trial court erred when it granted the beneficiaries’ motion for

summary judgment on his will-contest claim. He claims that because Mary Lou had been

hospitalized for altered mental status a few weeks prior to executing the will and held

prescriptions for twenty-two medications, “[c]learly a genuine issue of material fact exists

as to [Mary Lou’s] testamentary capacity at the time of the execution of her will . . . .”

¶10.   “The question of ‘devisavit vel non’ (‘will or no will’) is the primary issue in a will

contest, and under [Mississippi Code Annotated section] 91-7-19 (1972), either party to a

will contest has an automatic right to a jury trial, unless no genuine issues of material fact

have been presented in the pleading stage and a motion for summary judgment is properly



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granted.” In re Estate of High, 19 So. 3d 1282, 1290 (¶34) (Miss. Ct. App. 2009) (quoting

Power v. Scott, 837 So. 2d 202, 205 (¶7) (Miss. Ct. App. 2002)). Accordingly, summary

judgment may be granted in a will-contest case where there are no genuine issues of material

fact presented at the pleading stage. Id. On a summary judgment motion, “[t]he movant and

non-movant bear the burdens of production corresponding to the burdens of proof they would

bear at trial.” Collier v. Trustmark Nat’l. Bank, 678 So. 2d 693, 696 (Miss. 1996) (quoting

Skelton v. Twin County Rural Elec. Ass’n, 611 So. 2d 931, 935 (Miss. 1992)).

¶11.   “For a will to be valid, the testator must possess testamentary capacity.” In re Estate

of Gardner v. Gardner, 228 So. 3d 921, 926 (¶21) (Miss. Ct. App. 2017) (quoting Noblin v.

Burgess, 54 So. 3d 282, 291 (¶32) (Miss. Ct. App. 2010)). To possess testamentary capacity,

the individual must be of “sound and disposing mind.” Id. (quoting Miss. Code Ann. § 91-5-

1 (Rev. 2013)). “Testamentary capacity is determined based on three factors: (1) whether the

testator had the ability at the time of the will to understand and appreciate the effects of his

act; (2) whether the testator had the ability at the time of the will to understand the natural

objects or persons to receive his bounty and their relation to him; and (3) whether the testator

was capable of determining at the time of the will what disposition he desired to make of his

property.” Id. (quoting In re Estate of Laughter, 23 So. 3d 1055, 1061 (¶20) (Miss. 2009)).

“The key to testamentary capacity is mental competency at the time the will is made.” Id.

(quoting Lee v. Lee, 337 So. 2d 713, 715 (Miss. 1976)).

¶12.   The supreme court has explained the burden of proof regarding testamentary capacity

as follows:



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       At trial, the will’s proponents carry the burden of proof, which they meet by
       the offering and receipt into evidence of the will and the record of probate. A
       prima facie case is made by the proponent solely by this proof. Afterwards,
       although the burden of proof remains on the proponents, the burden of going
       forward with proof of testamentary incapacity shifts to the contestants, who
       must overcome the prima facie case. The proponents may then present rebuttal
       proof if necessary.

In re Estate of Phelps v. Phelps, 180 So. 3d 835, 839 (¶16) (Miss. Ct. App. 2015) (quoting

In re Estate of Rutland v. Rutland, 24 So. 3d 347, 351 (¶10) (Miss. Ct. App. 2009)).

¶13.   Here, the beneficiaries offered the will, and it was admitted to probate. Thus, they

established a prima facie case regarding Mary Lou’s testamentary capacity. Additionally,

when the beneficiaries moved for summary judgment in response to Daren’s contest, they

attached four affidavits of individuals that testified as to Mary Lou’s mental capacity. At this

point, Daren was required to respond to the summary judgment motion with some evidence

to rebut the beneficiaries’ prima facie case to show a genuine issue for trial. Daren, however,

filed an answer in response—and nothing more—in which he reiterated that Mary Lou had

been hospitalized for altered mental status and had prescriptions for twenty-two medications.

Following the reiteration of these two facts, Daren stated in his response, “Clearly, a genuine

issue of material fact exists in regards to the decedent’s mental state.”

¶14.   It is well settled that “[t]he existence of a genuine issue of material fact will preclude

summary judgment.” Calvert v. Griggs, 992 So. 2d 627, 632 (¶11) (Miss. 2008). However,

we note that “[a] fact is neither material nor genuinely contested . . . merely because one

party proclaims it so.” Suddith v. Univ. of S. Miss., 977 So. 2d 1158, 1167 (¶10) (Miss. Ct.

App. 2007). “The mere allegation or denial of material fact is insufficient to generate a



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triable issue of fact and avoid an adverse rendering of summary judgment.” Kaigler v. City

of Bay St. Louis, 12 So. 3d 577, 583 (¶27) (Miss. Ct. App. 2009) (internal quotation marks

omitted) (quoting Palmer v. Biloxi Reg’l Med. Ctr. Inc., 564 So. 2d 1346, 1356 (Miss.

1990)). “More specifically, the plaintiff may not rely solely upon the unsworn allegations

in the pleadings, or arguments and assertions in briefs or legal memoranda.” Id.

¶15.   In the instant case, Daren rested upon the mere allegations in his pleadings and

summarily concluded there was a genuine issue of material fact. While Mary Lou’s

hospitalization and prescriptions the month prior to the execution of her will may have been

important facts in this case, there was no evidence of a genuine issue of material

fact—namely, that Mary Lou lacked testamentary capacity as determined by the three

relevant factors at the time she executed her will. Daren offered no testimony by affidavit,

deposition, or otherwise regarding Mary Lou’s testamentary capacity. Our supreme court has

offered the following in response to a nonmovant’s failure to appropriately respond to a

summary judgment motion:

       [W]e wish to make it clear that this Court intends to enforce Rule 56(e), which
       requires affidavits or other evidence establishing “a genuine issue for trial.”
       Miss. R. Civ. P. 56(e). Those who practice before our trial courts are well
       advised to respond to summary judgment motions with affidavits, deposition
       testimony, responses to discovery, and other evidence approved by Rule 56,
       allowing our trial judges a fair look at whether triable issues of material fact
       exist. As the rule specifically provides, parties may not simply rely on their
       pleadings . . . .

Franklin Collection Serv. Inc. v. Kyle, 955 So. 2d 284, 291 (¶24) (Miss. 2007).

¶16.   Because the beneficiaries established a prima facie case that the will was valid—and

specifically that Mary Lou possessed testamentary capacity at the time of its execution—and

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Daren failed to rebut the prima facie case with any summary-judgment evidence that there

was a genuine issue for trial, the trial court did not err in granting summary judgment.

       II.    Remaining Issues

¶17.   Daren also briefly states that his Fifth and Fourteenth Due Process rights were violated

because he was “denied the opportunity to cross examine the individuals presenting affidavits

to the court.” However, he cites no authority to support this assertion and does not reference

the rule which he presumably now seeks the benefit of: Mississippi Rule of Civil Procedure

56(f). “[F]ailure to cite relevant authority obviates the appellate court’s obligation to review

such issues.” Martin v. State, 214 So. 3d 217, 223 (¶15) (Miss. 2017). Moreover, Daren did

not present this as an issue before the chancery court, and appellate courts “do not sit to

determine matters which were not presented to the lower court,” including “the haven of

[Rule 56(f)].” MST Inc. v. Miss. Chem. Corp., 610 So. 2d 299, 305 (Miss. 1992).

¶18.   AFFIRMED.

    IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.




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