                                                                                       ACCEPTED
                                                                                   03-14-00035-CV
                                                                                           8310086
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                             12/18/2015 4:05:19 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK

                       No. 03-14-00035-CV
                                              FILED IN
____________________________________________________
                                        3rd COURT OF APPEALS
                                                             AUSTIN, TEXAS
                In the Third Court of Appeals of Texas   12/18/2015 4:05:19 PM
                                                            JEFFREY D. KYLE
                                                                  Clerk

                           In the Estate of
                   Evelyn Landua Koehler, Deceased


     An Appeal from County Court at Law No. 1 of Bell County, Texas
            The Honorable Judge Edward Johnson, Presiding
                     Trial Court Cause No. 29,462


                         APPELLEE’S BRIEF


                                    JACK R. CREWS
                                    State Bar Card No.: 05072300
                                    (254) 743-7320 – Direct
                                    E-mail: jackcrews@bcswlaw.com
                                    KENNETH R. VALKA
                                    State Bar Card No.: 20435300
                                    (254) 743-7350 – Direct
                                    E-mail: kenvalka@bcswlaw.com
                                    BENJAMIN D. BURNETT
                                    State Bar Card No.: 24072012
                                    (254) 743-7324 – Direct
                                    E-mail: benjaminburnett@bcswlaw.com
                                    15 North Main Street
                                    Temple, Texas 76501
                                    Fax: (254) 774-9353

                                    ATTORNEYS FOR APPELLEE


                ORAL ARGUMENT NOT REQUESTED
                           No. 03-14-00035-CV
____________________________________________________
                    In the Third Court of Appeals of Texas


                               In the Estate of
                       Evelyn Landua Koehler, Deceased


                    IDENTITY OF PARTIES AND COUNSEL


Casey A. Koehler, Appellant            Kanda Koehler, Appellee
Jennifer Phy, Appellant

Trial and appellate counsel for        Appellate counsel for Applicant/
Contestants/Appellants:                Appellee:

NAMAN, HOWELL, SMITH & LEE,            BAIRD, CREWS, SCHILLER &
PLLC                                   WHITAKER P.C.
Robert Little                          Jack R. Crews
State Bar No. 24050940                 State Bar No. 05072300
little@namanhowell.com                 jackcrews@bcswlaw.com
Kristen A. Mynar                       Kenneth R. Valka
State Bar No. 24074785                 State Bar No. 20435300
kmynar@namanhowell.com                 kenvalka@bcswlaw.com
Jeffrey A. Armstrong                   Benjamin D. Burnett
State Bar No. 24038747                 State Bar No. 24072012
jarmstrong@namanhowell.com             benjaminburnett@bcswlaw.com
400 Austin Avenue, Suite 800           15 North Main Street
Waco, TX 76701                         Temple, TX 76501-7629
Telephone: 254.755.4100                Telephone: 254.774.8333
Facsimile: 254.754.6331                Facsimile: 254.774.9353




APPELLEE’S BRIEF                                                          Page i
                   Trial Counsel for Appellee:

                   HARRELL & STOEBNER, P.C.
                   J. Eric Stoebner
                   State Bar Card No.: 24045919
                   2106 Bird Creek Drive
                   Temple, Texas 76502




APPELLEE’S BRIEF                                  Page 2
                                              TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL ................................................................... i
TABLE OF CONTENTS ................................................................................................. iii
INDEX OF AUTHORITIES ........................................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ..................................................... 1
APPELLEE'S REPLY POINTS ...................................................................................... 2
STATEMENT OF THE CASE ........................................................................................ 3
STATEMENT OF FACTS ............................................................................................... 3
OBJECTION TO APPELLANTS’ BRIEF AND MOTION TO STRIKE .................. 8
SUMMARY OF THE ARGUMENT ............................................................................... 9
STANDARD OF REVIEW ............................................................................................. 10
ARGUMENT AND AUTHORITIES ............................................................................ 12
          I. THE TRIAL COURT WAS CORRECT IN FINDING THAT APPELLEE WAS NOT IN
             DEFAULT FOR OFFERING THE CODICIL MORE THAN FOUR YEARS AFTER
             DECEDENT’S DEATH......................................................................................... 12
          II. THERE IS NO FINDING THAT JOHN L. KOEHLER WAS IN DEFAULT, AND
              THEREFORE A DEFAULT CANNOT BE IMPUTED TO APPELLEE. ...................... 17

PRAYER........................................................................................................................... 21




APPELLEE’S BRIEF                                                                                                           Page iii
                                              INDEX OF AUTHORITIES

Cases

Armstrong v. Carter, 291 S.W. 626 (Tex. Civ. App.—Waco 1927, no writ) ................... 13
Brown v. Byrd, 512 S.W.2d 753 (Tex. Civ. App.—Tyler 1974, no writ) ......................... 13
Cantu v. Horany, 195 S.W.3d 867 (Tex. App.—Dallas 2006, no pet.) .............................. 9
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ..................................................... 11
Fortinberry v. Fortinberry, 326 S.W.2d 717 (Tex. Civ. App.—Waco 1959, writ ref’d
  n.r.e.) .............................................................................................................................. 19
Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965) .................................................................. 12
Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261 (Tex. 2014) ................................... 11
House v. House, 222 S.W. 322 (Tex. Civ. App.—Texarkana 1920, writ dism’d w.o.j.) .. 13
Hughes v. Pearcy, No. 03-10-00319-CV, 2014 Tex. App. LEXIS 13059 (Tex. App.—
  Austin Dec. 8, 2014, pet. denied) ................................................................................... 11
In re Estate of Williams, 111 S.W.3d 259 (Tex. App.—Texarkana 2003, pet. denied) .... 19
In the Estate of Campbell, 343 S.W.3d 899 (Tex. App.—Amarillo 2011, no pet.) ... 11, 12,
  13, 14, 16, 18, 19, 20, 21
In the Estate of Rothrock, 312 S.W.3d 271 (Tex. App.—Tyler 2010, no pet.) ................. 10
Kamoos v. Woodward, 570 S.W.2d 6 (Tex. Civ. App.—San Antonio 1978, writ ref’d
  n.r.e.) .............................................................................................................................. 13
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (Tex. App.—Austin 2005, pet denied).
   .................................................................................................................................. 11, 12
Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (Tex. App.—
  Amarillo 1988, writ denied) ........................................................................................... 12
Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630 (Tex. App.—Tyler
  2004, no pet.).................................................................................................................. 10
Schindler v. Schindler, 119 S.W.3d 923 (Tex. App.—Dallas 2003, pet. denied) 10, 17, 18,
  20
St. Mary’s Orphan Asylum v. Masterson, 57 Tex. Civ. App. 646, 121 S.W. 587 (Tex. Civ.
  App.—San Antonio 1909, writ ref’d) ............................................................................ 19
Statutes

Tex. Prob. Code § 3(ff)...................................................................................................... 13
Tex. Prob. Code § 73(a)............................................................................................... 12, 20




APPELLEE’S BRIEF                                                                                                                   Page iv
Treatises

Johanson’s Texas Estates Code Annotated § 256.003 Commentary (2015) .................... 20
Johanson’s Texas Probate Code Annotated § 73 Commentary (2013) ............................ 20




APPELLEE’S BRIEF                                                                        Page v
                   STATEMENT REGARDING ORAL ARGUMENT

       Pursuant to Texas Rule of Appellate Procedure 39.1, Appellee, Kanda

Koehler, does not request oral argument because the facts and legal arguments are

adequately presented in the briefs. However, if oral argument is granted, Ms.

Koehler desires to participate.




APPELLEE’S BRIEF                                                           PAGE 1
                         APPELLEE'S REPLY POINTS

       1.      The trial court was correct in finding that Appellee was not in
               Default for offering the Codicil more than four years after
               Decedent’s death

       2.      There is no finding that John L. Koehler was in default, and
               therefore a default cannot be imputed to Appellee




APPELLEE’S BRIEF                                                         PAGE 2
                                     STATEMENT OF THE CASE

          This case involves the probate of a holographic codicil, dated November 24,

2008 (the “Codicil”), to the Last Will and Testament of Evelyn Koehler (the

“Will”) more than four years after her death.1 After a bench trial, the trial court

ordered the Codicil admitted to probate, found that Appellee was not in default in

offering the Codicil for probate more than four years after Evelyn Koehler’s

(“Decedent”) death, and concluded that Appellee had no legal standing to offer the

Codicil until more than four years had expired from the date of Decedent’s death.2

                                      STATEMENT OF FACTS

          Decedent died on December 28, 2008 in Belton, Bell County, Texas.3

Decedent left the Will, which was dated May 29, 2001.4 Decedent also left the

Codicil, which was dated November 24, 2008 and was never revoked.5 The Codicil

is solely in Decedent’s handwriting and is signed by Decedent.6 It states:

                  Since the death of my son, David Koehler, it is my wish and
                  will that the property I share equally with my son, John L.
                  Koehler in Llano, Texas go to John L. Koehler when my

1
    C.R. 28-30.
2
    C.R. 61-62, 65-66.
3
    C.R. 28.
4
    Id.
5
    R.R. Vol. 3, Petitioner’s No. 1; R.R. Vol. 2, p. 35, lines 1-4.
6
    R.R. Vol. 2, p. 16, lines 2-9.


APPELLEE’S BRIEF                                                                PAGE 3
                   property is divided upon my death because he took care of it, of
                   me and Charles F. Koehler, his brother, and that as executor of
                   my will that John L. Koehler be the trustee for Charles F.
                   Koehler when remaining of my property is divided to John L.
                   Koehler and Charles F. Koehler equally.7

Decedent executed the Codicil because Appellants never went to see Decedent and

they did not care about Decedent.8 Appellants did not even attend Decedent’s

funeral.9

          On March 12, 2012, Appellants, along with Terry Smith Koehler, filed an

Application to Compel Delivery of Will urging the trial court to compel John

Koehler (“John”) to deliver the Will and Codicil to the Bell County Clerk.10 On

March 13, 2012, the trial court signed a Show Cause Order directing John to

appear in court to show cause why he should not deliver the Will and Codicil to the

court for probate.11 In April 2012, John died.12 John left a will (“John’s Will”)

naming Appellee, among others, as a beneficiary, and as a co-executor along with




7
    R.R. Vol. 3, Petitioner’s No. 1.
8
 R.R. Vol. 2, p. between 48 and 49, lines 11-23. It appears that a page number was left off of
this particular page in the Reporter’s Record.
9
    Id.
10
     C.R. 77-79.
11
     C.R. 83.
12
     R.R. Vol. 2, p. 35, lines 11-15.


APPELLEE’S BRIEF                                                                           PAGE 4
Appellant Phy.13 Although she was aware of the existence of the Codicil prior to

Decedent’s death, Appellee was not provided a copy of the Codicil until June

2012, by counsel for Appellants.14 Appellee had numerous conversations with

Kristen Mynar, an attorney for Appellants, and wanted to hire Ms. Mynar as her

attorney.15 Ms. Mynar never advised Appellee that there was a time limit or

“ticking clock” to file the Codicil for probate.16 Ms. Mynar never informed

Appellee that she needed to take action by a certain time or else her rights or the

rights of others would be prejudiced.17 It was Appellee’s understanding, from a

conversation with Ms. Mynar, that the Codicil was already on file with the Court.18

Appellee did not understand the difference between filing it with the court versus

applying for it to be probated.19

          After receiving a copy of the Codicil, Appellee began looking for an

attorney in Bell County, Texas.20 In August or September 2012, Appellee hired an


13
     R.R. Vol. 2, p. 36, lines 6-12.
14
     R.R. Vol. 2, p. 50, lines 17-19; p. 51, lines 24-25, p. 52, lines 1-4.
15
     R.R. Vol. 2, p. 52, lines 19-55; p. 53, lines 1-12.
16
     R.R. Vol. 2, p. 61, lines 8-11.
17
     R.R. Vol. 2, p. 61, lines 12-18.
18
     R.R. Vol. 2, p. 62, lines 1-7.
19
     R.R. Vol. 2, p. 59, lines 14-23; p. 62, lines 1-7.
20
     R.R. Vol. 2, p. 38, lines 6-11.


APPELLEE’S BRIEF                                                              PAGE 5
attorney in Bell County, Texas.21

           On August 12, 2012, Appellant Phy filed her Application for Independent

Administration and Letters of Administration Pursuant to Section 145(d) of the

Texas Probate Code (the “Application”).22 Appellee does not recall whether or not

she received a copy of the Application.23Appellant Phy offered the Will for

probate, but intentionally did not offer the Codicil because “she does not believe it

was executed with the formalities and solemnities required by law to make it a

valid codicil.”24 Appellant Phy delivered the original Codicil to the clerk of the

trial court for “keeping”.25 At no point in time did Appellee possess the original

Codicil.26 The Will contains six different beneficiaries, of which Appellee is not

named.27 The Codicil, on the other hand, lists only John and Charles Koehler as

beneficiaries.28 Like the Will, Appellee is not named as a beneficiary in the




21
     R.R. Vol. 2, p. 62, lines 14-16.
22
     C.R. 5-8.
23
     R.R. Vol. 2, p. 60, lines 4-8.
24
     C.R. 6.
25
     Id.
26
     R.R. Vol. 2, p.36, lines 15-17.
27
     C.R. 7.
28
     R.R. Vol. 3, Petitioner’s No. 1.

APPELLEE’S BRIEF                                                               PAGE 6
Codicil.29 On July 29, 2013, the trial court signed an order admitting the Will to

probate and appointing Appellant Phy as the Dependent Administratix of

Decedent’s Estate.30

           On April 24, 2013, John’s Will was admitted to probate and Appellee was

appointed Administratix of John’s Estate.31 After being appointed Administratix of

John’s Estate, Appellee applied to the court for permission to offer the Codicil for

probate in Decedent’s Estate.32 In August 2013, the court granted permission for

Appellee to file the Codicil for probate in Decedent’s Estate, at which time

Appellee instructed her trial counsel to probate the Codicil.33

           On August 27, 2013, Appellee filed her Application for Probate of

Holographic Codicil and Letters of Administration with Codicil Annexed seeking

to have the court admit the Codicil to probate.34 On October 23, 2013, an

evidentiary hearing was conducted in the trial court regarding Appellee’s

application to have the Codicil admitted to probate.35 On November 13, 2013, the

29
     Id.
30
     C.R. 27.
31
     C.R. 66 (See Conclusions of Law).
32
     R.R. Vol. 2, p. 38, lines 24-25; p. 39, lines 1, 10-13.
33
     R.R. Vol. 2, p. 7, lines 3-8; p. 39, lines 14-20.
34
     C.R. 28-30.
35
     C.R. 61-62.


APPELLEE’S BRIEF                                                              PAGE 7
trial court signed an Order Admitting Holographic Codicil to Probate (the “Order”)

instructing the clerk of the court to record the Codicil and Application in the

judge’s probate docket.36 On December 5, 2013, the Court filed its Findings of Fact

and Conclusions of Law finding, among other things, that Appellee’s actions in not

filing an application to probate the Codicil until she did were not unreasonable

under the existing circumstances, that she acted and used due diligence in filing the

application, that the admission of the Codicil to probate would not work an

injustice or frustrate the intent of the Decedent, that Appellee was not in default in

failing to offer the Codicil on or before December 24, 2012, and concluding that

Appellee had no standing to offer the Codicil for probate until John’s Will was

admitted to probate and Appellee was appointed Administratix of John’s Estate.37

       OBJECTION TO APPELLANTS’ BRIEF AND MOTION TO STRIKE

           In their brief, Appellants attach Decedent’s Last Will and Testament and

documents purported to be in John’s handwriting in the Appendix. The documents

attached in the Appendix as appendices “A”, “B”, and “C” are not part of the

record on this appeal nor comply with Texas Rules of Appellate Procedure 38.1(k).

Appellee objects to Appellants’ inclusion of appendices “A”, “B”, and “C” in their

appendix and request that the Court not consider said documents and move to


36
     Id.
37
     C.R. 65-66.


APPELLEE’S BRIEF                                                                PAGE 8
strike those appendices and any references to them, or arguments based on them,

from the Appellants’ Brief. An appellate court cannot consider documents cited in

a brief and attached as appendices if they are not formally included in the record on

appeal. Cantu v. Horany, 195 S.W.3d 867, 870 (Tex. App.—Dallas 2006, no pet.).

                       SUMMARY OF THE ARGUMENT

       Appellee had the burden to show the trial court that she was not in default

for offering the Codicil more than four years after Decedent’s death. The trial

court, in considering the existing circumstances, found that Appellee acted with

reasonable diligence in offering the Codicil for probate and was therefore not in

default. Appellants cannot demonstrate that there is no evidence, or merely a

scintilla of evidence, to support the trial court’s findings. The trial court’s findings

are not so weak or so contrary to the overwhelming weight of the evidence that the

findings should be set aside. The evidence offered at trial would enable reasonable

and fair-minded people to reach the same decision as the trial court. Accordingly,

the trial court correctly found that Appellee was not in default for offering the

codicil more than four years after Decedent’s death.

       Appellants also assert that John’s default for failing to offer the Codicil for

probate prior to his death is imputed to Appellee. The trial court did not make a

finding that John was in default, and Appellants did not request further findings of

fact. As such, because the trial court did not find that John was in default,


APPELLEE’S BRIEF                                                                  PAGE 9
Appellants’ second point of error should be overruled. In any event, such default, if

it existed, should not be imputed to Appellee.

                                    STANDARD OF REVIEW

          Appellants have failed to make clear under what standard they are attacking

the trial court’s findings. In their standard of review section, Appellants discuss the

standard of review for reviewing a trial court’s conclusions of law.38 However,

Appellants do not expressly contest the trial court’s sole conclusion of law. Rather,

it appears that Appellants attempt to contest the trial court’s findings of fact, which

are reviewed for legal and factual sufficiency.

          The question of whether the party applying for probate is in default is

ordinarily a question of fact for the trial court. In the Estate of Rothrock, 312

S.W.3d 271, 273 (Tex. App.—Tyler 2010, no pet.) (citing Schindler v. Schindler,

119 S.W.3d 923, 929 (Tex. App.—Dallas 2003, pet. denied)). The trial court’s

findings of fact after a bench trial are reviewable for legal and factual sufficiency

by the same standards applied in reviewing the evidence supporting a jury’s

answer. Rothrock, 271 S.W.3d at 274 (citing Santa Fe Petroleum, L.L.C. v. Star

Canyon Corp., 156 S.W.3d 630, 636 (Tex. App.—Tyler 2004, no pet.)).

          When an appellant challenges the legal sufficiency of the evidence

supporting an adverse finding of fact for which the opposing party had the burden

38
     See Appellants’ Brief, p. 9.


APPELLEE’S BRIEF                                                                PAGE 10
of proof, the appellant must demonstrate that there is no evidence, or merely a

scintilla of evidence, to support the adverse finding. Graham Cent. Station, Inc. v.

Pena, 442 S.W.3d 261, 263 (Tex. 2014); Hughes v. Pearcy, No. 03-10-00319-CV,

2014 Tex. App. LEXIS 13059, *14-15 (Tex. App.—Austin Dec. 8, 2014, pet.

denied). Evidence is legally insufficient when (a) there is a complete absence of

evidence of a 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. McMillin v. State Farm

Lloyds, 180 S.W.3d 183, 200 (Tex. App.—Austin 2005, pet. denied). In

conducting a legal sufficiency review, the Court must consider the evidence in the

light most favorable to the challenged finding and indulge every reasonable

inference to support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).

The Court must also credit favorable evidence if a reasonable factfinder could and

disregard contrary evidence unless a reasonable factfinder could not. Id. at 827.

The final test for legal sufficiency must always be whether the evidence at trial

would enable reasonable and fair-minded people to reach the verdict under review.

In the Estate of Campbell, 343 S.W.3d 899, 904 (Tex. App.—Amarillo 2011, no

pet.) (citing City of Keller, 168 S.W.3d at 827).




APPELLEE’S BRIEF                                                              PAGE 11
       A factual sufficiency review is based on either (1) insufficient evidence or

(2) being against the great weight and preponderance of the evidence. Raw Hide

Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275-76 (Tex. App.—

Amarillo 1988, writ denied). The insufficient-evidence standard is used to evaluate

the evidence supporting an issue on which the appellant did not have the burden of

proof at trial. McMillin, 180 S.W.3d at 201. The appellate court must consider and

weigh all evidence in the record to determine whether the evidence supporting the

finding is so weak or the finding is so contrary to the overwhelming weight of the

evidence that the finding should be set aside. Garza v. Alviar, 395 S.W.2d 821, 823

(Tex. 1965). Appellate courts will not reverse merely because a different finding is

supported by a preponderance of the evidence. McMillin, 180 S.W.3d at 201.

                        ARGUMENT AND AUTHORITIES

     I.    The trial court was correct in finding that Appellee was not in
           Default for offering the Codicil more than four years after
           Decedent’s death

       Generally, 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 same for probate within

four years aforesaid. (Emphasis added). Tex. Prob. Code § 73(a)39; Campbell, 343

39
  The Texas Probate Code has been replaced by the Texas Estates Code, but because the trial
occurred while the Texas Probate Code was still in effect and the record is replete with
references to it, Appellee will refer to the Texas Probate Code.

APPELLEE’S BRIEF                                                                    PAGE 12
S.W.3d at 902. The definition of “will” includes a codicil. Tex. Prob. Code § 3(ff).

In this context, “default” means a failure due to the absence of reasonable diligence

on the part of the proponent. Brown v. Byrd, 512 S.W.2d 753, 755 (Tex. Civ.

App.—Tyler 1974, no writ) (citing House v. House, 222 S.W. 322, 325 (Tex. Civ.

App.—Texarkana 1920, writ dism’d w.o.j.)). The burden is on the party applying

for probate to show she or he was not in default for offering a will for probate more

than four years after a decedent’s death. Campbell, 343 S.W.3d at 903. The

question of whether the party applying for probate is in default is ordinarily a

question of fact for the trial court. Kamoos v. Woodward, 570 S.W.2d 6, 7-8 (Tex.

Civ. App.—San Antonio 1978, writ ref’d n.r.e.) (citing Armstrong v. Carter, 291

S.W. 626, 627 (Tex. Civ. App.—Waco 1927, no writ)). In Armstrong, the 10th

Court of Appeals stated:

               Clearly, the intention of the Legislature was to lodge with the
               trial court or jury the power to determine as a question of fact,
               where there is any evidence raising the issue, whether there was
               a default. The tendency of our courts has been from the earliest
               decisions to permit wills to be filed after the four-year period,
               where there is any evidence of a probative force which would
               excuse the failure to offer the will sooner.

(Citations omitted). Armstrong, 291 S.W. at 627. The long standing practice in

Texas is to admit wills to probate as a muniment of title more than four years after

the testator’s death where doing so would not work an injustice and the proponent




APPELLEE’S BRIEF                                                                   PAGE 13
of the will can establish reasonable diligence on her or his part alone in offering

the will for probate. (Emphasis added). Campbell, 343 S.W.3d at 906.

           In reading decisions of the various Courts of Appeals that address the issue

of default in offering a will, it is apparent that the decision in each case depends

heavily upon the specific facts to the particular case. In the present case, Appellee

did not receive a copy of said Codicil until June 2012, and was never in possession

of the original Codicil.40 Appellee was neither an executor nor a beneficiary of

either the Will or Codicil.41 The original Codicil was filed with the clerk of court

for keeping by Appellants.42 The trial court found that Appellee testified that she

did not know nor understand the “effect” of the filing of the Codicil with the

County Clerk of Bell County, Texas for safe keeping.43 Appellee knew that counsel

for Appellants had filed the Codicil with the clerk of court, but is not sure whether

or not she received a copy of the Application.44 After several conversations with

Ms. Mynar, Appellee quickly sought counsel in Bell County, Texas, and hired said

counsel in August or September 2012 to get the probate moving, believing that the



40
     R.R. Vol. 2, p. 51, lines 24-25; p. 52, lines 1-4.
41
     R.R. Vol. 3, Petitioner’s No. 1; C.R. 6-7.
42
     C.R. 6.
43
     C.R. 65.
44
     R.R. Vol. 2, p. 62, lines 1-7; p. 60, lines 4-8.


APPELLEE’S BRIEF                                                                PAGE 14
probate of the Codicil and John’s Will were connected.45 As co-executor of John’s

Will, Appellee was appointed Administratix of John’s Estate on April 24, 2013.46

As Administratrix of John’s Estate, Appellee sought the trial court’s permission to

file an application to probate the Codicil.47 The trial court granted permission for

Appellee to do so.48 After receiving authority from the trial court to do so,

Appellee filed her Application for Probate of Holographic Codicil on August 27,

2013.49

           With the above evidence before it and as the sole fact-finder, the trial court

found that Appellee’s actions in not filing an application to probate the Codicil

until August 27, 2013, “were not unreasonable under the existing circumstances.”50

The trial court further found that Appellee “used and acted with due diligence in

filing her application.”51 A great body of law exists allowing a non-defaulting

proponent to offer a will for probate more than four years after the death of the

testator when intervening events would not work an injustice or frustrate the intent


45
     R.R. Vol. 2, p. 61, lines 19-23; p. 38, lines 6-11, 19-23; p. 62, lines 14-16.
46
     C.R. 66 (see Conclusions of Law).
47
     R.R. Vol. 2, p. 38, lines 24-25; p. 39, lines 1-20.
48
     Id.
49
     C.R. 28-30.
50
     C.R. 66.
51
     Id.


APPELLEE’S BRIEF                                                                      PAGE 15
of the testator. Campbell, 343 S.W.3d at 907-08. The trial court specifically found

that admitting the Codicil to probate would not work an injustice or frustrate the

intent of Decedent, and would carry out Decedent’s intent.52 Perhaps most

importantly, the trial court, after hearing and weighing the evidence, found that

Appellee was not in default in failing to offer the Codicil for probate on or before

December 24, 2012.53 In their brief, Appellants do not explicitly attack the

foregoing findings of the trial court, nor do they attack the trial court’s sole

conclusion of law. Rather, Appellants choose to explicitly attack four findings of

fact that, even if correctly challenged, are not enough to overcome the trial court’s

foregoing findings.54

           Appellants have failed to demonstrate that there is no evidence, or merely a

scintilla of evidence, to support the adverse findings of the trial court. There exists

sufficient evidence such that a reasonable and fair-minded jurist could have found

that Appellee was reasonably diligent in offering the Codicil for probate and was

not in default.55 Further, with all of the evidence before the trial court, there is no

indication that the evidence was so weak or the trial court’s findings are so

52
     Id.
53
     C.R. 66.
54
     See Appellants’ Brief, pp. 20-22.
55
  See Appellee’s Statement of Facts supra, pp. 3-8; see also Appellee’s factual summary supra,
pp. 13-15.


APPELLEE’S BRIEF                                                                        PAGE 16
contrary to the overwhelming weight of the evidence that the findings should be set

aside. For the foregoing reasons, the findings of the trial court that Appellee’s

actions were not unreasonable, that she acted with due diligence, and that she was

not in default, must not be disturbed.

    II.    There is no finding that John L. Koehler was in default, and
           therefore a default cannot be imputed to Appellee.

       Appellants argue that John was in default for not offering the Codicil before

his death, and that his default is imputed to Appellee. Appellants rely heavily on

Schindler in an attempt to persuade this Court that John was in default and that his

default was imputed to Appellee. In Schindler, Ruby died in June 1996, survived

by her husband Jodie, her two children, and her five grandchildren, leaving two

wills; the 1987 Will and the 1995 Will. Schindler, 119 S.W.3d at 927. After

Rudy’s death, Jodie remarried. Id. A few months after Ruby’s death, Jodie offered

the 1987 Will for probate, but never offered the 1995 Will for probate prior to his

death in April 2000. Id. Almost five years after Ruby’s death, one of Ruby’s

childeren and Jodie’s widow applied to have the 1995 Will admitted to probate as a

muniment of title. Id. The widow was a beneficiary under Jodie’s Will. The trial

court found that Jodie was in default for failing to offer the 1995 Will for probate

prior to his death. Id. at 930. The trial court also found that Jodie’s widow

defaulted her right to probate the 1995 Will. Id. In affirming the trial court, the 5th

Court of Appeals followed highly criticized case law that states that if any heir or

APPELLEE’S BRIEF                                                                PAGE 17
devisee is in default, such default bars her or his descendants or legatees from any

right to have such will probated. Id. at 929.

       The Schindler case can be distinguished from the immediate case in that the

trial court in Schindler made a specific finding of fact that Jodie had defaulted,

where the trial court in this case made no such finding that John defaulted.

       Schindler is highly criticized. The Campbell case, which was decided almost

seven years after Schindler, has the best reasoned approach and a contrary result.

In Campbell, James passed away in January 2002, survived by his second wife,

Freda, her two children, and his four children from a previous marriage. Campbell,

343 S.W.3d at 901. Freda possessed the will in a lockbox and never applied to

have it admitted to probate. Id. at 902. Freda died in October 2008. Id. at 901. One

of Freda’s sons, as Freda’s heir, applied to have the will probated as a muniment of

title in July 2009. Id. at 902. The trial court found that the proponent was not in

default and admitted the will to probate. Id. In affirming the trial court and

criticizing Schindler, the 7th Court of Appeals stated that the notion from Schindler

that if any heir or devisee was in default, the default would bar her or his

descendants or legatees from any right to have such will probated is contrary to the

long standing practice in Texas of admitting wills to probate where to do so would

not work an injustice and the proponent of the will can establish reasonable

diligence on her or his part alone in offering the will for probate. Id. at 906. The


APPELLEE’S BRIEF                                                               PAGE 18
Court further noted that Section 73(a) of the Texas Probate Code has “repeatedly

been interpreted as providing that the default of another does not preclude a non-

defaulting applicant from offering a will for probate as a muniment of title.” Id. at

903; Fortinberry v. Fortinberry, 326 S.W.2d 717, 719 (Tex. Civ. App.—Waco

1959, writ ref’d n.r.e.); In re Estate of Williams, 111 S.W.3d 259, 263 (Tex.

App.—Texarkana 2003, pet. denied); St. Mary’s Orphan Asylum v. Masterson, 57

Tex. Civ. App. 646, 654, 121 S.W. 587, 591 (Tex. Civ. App.—San Antonio 1909,

writ ref’d) (holding that the party applying for probate must be judged by his own

conduct and circumstances in evaluating whether his burden has been met

regarding a finding that he is not in “default” for failing to present a will for

probate within the proper time (Emphasis added)).

       Importantly, the Court of Appeals in Schindler explicitly found that Jodie

was in default, while the Court of Appeals in Campbell made it a point to note that

the trial court never specifically found that Freda was in default. Campbell, 343

S.W.3d at 905 n. 8. The court of appeals in Campbell further points out that the

appellant/contestant in the case never requested additional findings of fact or

conclusions of law, presumably to determine whether or not the trial court would

find Freda in default. Id. In that respect, Campbell is precisely the same as in the

present case. The trial court never made a finding that John was in default for not

offering the Codicil prior to his death, and Appellants never requested additional


APPELLEE’S BRIEF                                                              PAGE 19
findings of fact or conclusions of law. The Court in Campbell supports the position

that a finding of default on the part of an heir or devisee to a will by the trial court

is critical to appellate review.

          Even if the trial court found John was in default, which is unlikely, that

default should not be imputed to Appellee.56 Under the statute, “the party applying

for … probate” must show that he was not in default for failing to offer the will for

probate within the four-year period.57 Despite the clarity of this language, court

decisions dealing with the issue of whether such inaction was binding on the will

proponent’s successors “have shown considerable disarray.” Id. at 906. In

Schindler, the court ruled that “if any heir or devisee was in default, such default

would bar his or her descendants or legatees from any right to have such will

probated.” Schindler, 119 S.W.3d at 929. This issue was analyzed in detail, and

“hopefully put to rest” by the Court’s decision in Campbell.58 After careful

analysis of the case decisions, the Court concluded that “strict application of the

above-referenced quote from Schindler misconstrues § 73(a), misapplies the

authorities cited, and is contrary to a great body of law allowing a non-defaulting

proponent to offer a will for probate more than four years after the death of the

56
     See R.R. Vol. 2, p. 21, lines 4-19.
57
     See Tex. Prob. Code § 73(a).

 See Johanson’s Texas Probate Code Annotated § 73 Commentary (2013); Johanson’s Texas
58


Estates Code Annotated § 256.003 Commentary (2015).

APPELLEE’S BRIEF                                                                 PAGE 20
testator when intervening events would not work an injustice or frustrate the intent

of the testator.” Campbell, 343 S.W.3d at 907-08.

          It is readily apparent from the record that the trial court in this case

recognized the divide between the Schindler and Campbell cases.59 In reviewing

the trial court’s Findings of Fact and Conclusions of Law, the trial court plainly

placed the most weight on the Campbell case when making its ruling.

          The trial court concluded that Appellee had no legal standing to offer the

Codicil for probate until John’s Will was admitted to probate and Appellee was

appointed Administratrix of John’s Estate, which occurred on April 24, 2013, and

thus Appellee had no authority to seek to probate the Codicil on behalf of John’s

Estate until she was appointed Administratrix.60 Appellants have not contested the

trial court’s conclusion.

          Because the trial court did not find that John was in default, his default

cannot be imputed to Appellee.

                                            PRAYER

          For the foregoing reasons, Kanda Koehler respectfully requests that this

Court affirm the trial court’s Order Admitting Holographic Codicil to Probate.



59
   R.R. Vol. 2, p. 19, lines 14-25; p. 20, lines 1-7, 25; p. 21, lines 1-25; p. 22, lines 1-25; p. 23,
lines 1-23.
60
     C.R. 66.


APPELLEE’S BRIEF                                                                              PAGE 21
                   Respectfully submitted,

                   BAIRD, CREWS, SCHILLER &WHITAKER, P.C.



                   By:         /s/ Jack R. Crews
                         JACK R. CREWS
                         State Bar Card No.: 05072300
                         (254) 743-7320 – Direct
                         E-mail: jackcrews@bcswlaw.com
                         KENNETH R. VALKA
                         State Bar Card No.: 20435300
                         (254) 743-7350 – Direct
                         E-mail: kenvalka@bcswlaw.com
                         BENJAMIN D. BURNETT
                         State Bar Card No.: 24072012
                         (254) 743-7324 – Direct
                         E-mail: benjaminburnett@bcswlaw.com
                         15 North Main Street
                         Temple, TX 76501-7629
                         Fax: 254.774.9353

                         ATTORNEYS FOR APPELLEE




APPELLEE’S BRIEF                                            PAGE 22
                            CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this document was sent to the
person(s) named below pursuant to Tex. R. App. P. 9.5(b) on December 18, 2015:

       Robert Little
       Kristen A. Mynar
       Naman, Howell, Smith & Lee, PLLC
       400 Austin Ave., Ste. 800
       Waco, Texas 76701
       ATTORNEYS FOR APPELLANTS


                                           /s/ Jack R. Crews
                                      JACK R. CREWS




APPELLEE’S BRIEF                                                             PAGE 23
                          CERTIFICATE OF COMPLIANCE

       At the request of the Court, I certify that this file submitted by electronic

filing complies with the following requests of the Court:

       This filing is labeled with or accompanied by the following information:

         Case Name:                    In the Estate of Evelyn Landua Koehler,
                                       Deceased

         The Docket Number:            03-14-00035-CV

         The Type of Brief:            Appellee’s Brief on the Merits

         Word Processing Software: Microsoft Word for Windows 2010

       In compliance with Rule 9.4, Tex. R. App. P., I certify that the Brief

contains no more than 4,445 words, including the portions of the Brief that must be

counted under Rule 9.4(i), Tex. R. App. P., and all footnotes.



                                                  /s/ Jack R. Crews
                                             JACK R. CREWS




APPELLEE’S BRIEF                                                             PAGE 24
