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                                 MEMORANDUM OPINION

                                         No. 04-07-00757-CV

                        IN RE THE ESTATE OF Gert L. RABKE, Deceased

                           From Probate Court No. 1, Bexar County, Texas
                                  Trial Court No. 2005-PC-2895
                          Honorable Polly Jackson Spencer, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: January 28, 2009

AFFIRMED

           After Gert L. Rabke passed away in 2005, Paul von Beck-Lutes contested her will, claiming

he was Rabke’s common law husband, or alternatively, that Rabke made a nuncupative will while

on her deathbed. The trial court granted a No Evidence Motion for Partial Summary Judgment on

both issues. Beck-Lutes’s claims were severed, and he appeals the trial court’s orders.

                                FACTUAL AND PROCEDURAL HISTORY

           When Rabke passed away in 2005, her only daughter, Gabriele Arning, filed an application

to probate the will her mother had executed about ten years earlier, which named Arning as both

primary beneficiary and independent executor of her mother’s estate. Beck-Lutes filed pleadings
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contesting Arning’s application, claiming he was Rabke’s common law husband during the last

several years of her life. Beck-Lutes alleged the will Arning offered for probate had been revoked,

and Rabke either died intestate leaving him a right to her inheritance as her surviving spouse, or

alternatively, that Rabke made a nuncupative will naming Beck-Lutes as a beneficiary. The trial

court appointed a temporary administrator of Rabke’s estate. Arning filed a No Evidence Motion

for Partial Summary Judgment on the issue of Beck-Lutes’s standing to contest the will, which was

granted by the trial court. In addition, the trial court entered sanctions against Beck-Lutes in the

form of a deemed finding that he was not Rabke’s common law spouse, and it prohibited Beck-Lutes

from offering further support to his claim that he was ever Rabke’s spouse. The trial court severed

Beck-Lutes’s claims, and he filed a notice of appeal.

       Beck-Lutes challenges the trial court’s order in six issues, contending: (1) he is entitled to

a new trial pursuant to Texas Rule of Appellate Procedure 34.6(b); (2) the trial court erred in

granting the No Evidence Partial Motion for Summary Judgment because Beck-Lutes presented more

than a scintilla of evidence that he was Rabke’s common law spouse; (3) the trial court erred in

granting the No Evidence Partial Motion for Summary Judgment on the nuncupative (oral) will

because there was inadequate time for discovery; (4) the trial court abused its discretion in granting

discovery sanctions against Beck-Lutes; (5) the trial court abused its discretion in denying Beck-

Lutes a jury trial; and (6) the trial court acted without jurisdiction in granting discovery sanctions

after granting the motion for summary judgment. We affirm the trial court’s order.

                                             NEW TRIAL

       Beck-Lutes argues that he is entitled to a new trial under Texas Rule of Appellate Procedure

34.6(f), which provides that an appellant is entitled to a new trial under the following circumstances:



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       (1) if the appellant has timely requested a reporter’s record;

       (2) if, without the appellant’s fault, a significant exhibit or a significant portion of the
       court reporter’s notes and records has been lost or destroyed or—if the proceedings
       were electronically recorded—a significant portion of the recording has been lost or
       destroyed or is inaudible;

       (3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or
       destroyed exhibit, is necessary to the appeal’s resolution; and

       (4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be
       replaced by agreement of the parties, or the lost or destroyed exhibit cannot be
       replaced either by agreement of the parties or with a copy determined by the trial
       court to accurately duplicate with reasonable certainty the original exhibit.

TEX . R. APP . P. 34.6(f). An appellant fails to satisfy Rule 34.6(f) when he fails to show that the

missing portion of the record is necessary to his appeal. See Landry’s Seafood House-Addison, Inc.

v. Snadon, 233 S.W.3d 430, 437 (Tex. App.—Dallas 2007, pet. denied); Gavrel v. Rodriguez, 225

S.W.3d 758, 761 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

       Beck-Lutes argues that he should be afforded a new trial due to a missing portion of the

record from a December 2005 hearing. Beck-Lutes contends that during this hearing, all parties

referred to him as Rabke’s husband, and the court took judicial notice of the fact that he was Rabke’s

husband. After entering several requests for a transcript of the hearing, the court reporter filed a

statement with the court indicating that although a record was taken, she was unable to produce the

transcript. The court reporter stated that she took an electronic, paperless record of the transcript

which was transferred to a defective disc. Although the court reporter attempted to use a recovery

program, she was unable to recover the information. Beck-Lutes argues that the record of the trial

court taking judicial notice of his common law marriage nullifies the no evidence summary judgment

against him.


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       Rule 201(b) of the Texas Rules of Evidence states that “[a] judicially noticed fact must be

one not subject to reasonable dispute in that it is either (1) generally known within the territorial

jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.” TEX . R. EVID . 201(b). This rule applies only to

adjudicative facts, which are facts pertaining to a particular case. See O’Connell v. State, 17 S.W.3d

746, 749 (Tex. App.—Austin 2000, no pet.). Before a fact can be judicially noticed, it must be

verifiably certain and relatively undisputable. See Havins v. First Nat. Bank of Paducah, 919

S.W.2d 177, 184 (Tex. App.—Amarillo 1996, no writ).

       The record does not support Beck-Lutes’s claim that the trial court took judicial notice of his

alleged common law marriage. First, whether Beck-Lutes was Rabke’s common law husband was

a fact issue in dispute throughout the proceedings. Courts take judicial notice only of adjudicative

facts that are not subject to reasonable dispute. See TEX . R. EVID . 201(b). In this case, just five

months after the December 2005 hearing, Beck-Lutes filed a Motion to Establish Common Law

Marriage, seeking a court finding that he was in fact Rabke’s common law husband. If the court had

taken judicial notice of this fact in December, there would have been no need for Beck-Lutes to file

such a motion or request a hearing. His actions following the December 2005 hearing indicate the

issue of the common law marriage had not been settled, and in fact continued until the court issued

the No Evidence Partial Summary Judgment, finding that Beck-Lutes was not Rabke’s common law

spouse, and prohibiting him from offering further support to his claim that he was ever Rabke’s

spouse. Finally, while the transcript may have included other parties referring to the couple as

married, this is not evidence that the trial court made such a determination. Consequently, Beck-




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Lutes has failed to prove the reporter’s lost record is necessary to this appeal’s resolution, and his

first issue is overruled.

                                COMMON LAW MARRIAGE CLAIM

        In his second issue, Beck-Lutes claims the trial court erred in granting Arning’s No Evidence

Motion for Partial Summary Judgment, finding that Beck-Lutes was not Rabke’s common law

spouse. Beck-Lutes first argues that he was not properly served with notice of the summary

judgment hearing. Rule 21a of the Texas Rules of Civil Procedure states:


        Every notice required by these rules, and every pleading, plea, motion, or other form
        of request required to be served under Rule 21 . . . may be served by delivering a
        copy to the party to be served, or the party’s duly authorized agent or attorney of
        record, as the case may be, either in person or by agent or by courier receipted
        delivery or by certified or registered mail, to the party’s last known address . . . .
        Service by mail shall be complete upon deposit of the paper, enclosed in a postpaid,
        properly addressed wrapper, in a post office or official depository under the care and
        custody of the United States Postal Service . . . . Nothing herein shall preclude any
        party from offering proof that the notice or instrument was not received, or, if service
        was by mail, that it was not received within three days from the date of deposit in a
        post office or official depository under the care and custody of the United States
        Postal Service, and upon so finding, the court may extend the time for taking the
        action required of such party or grant such other relief as it deems just.


TEX . R. CIV . P. 21a. Even when a party does not receive actual notice, “constructive notice” may

be established if the serving party has complied with the requirements of Rule 21a, and presents

evidence that the intended recipient engaged in behaviors such as selective acceptance or refusal of

certified mail relating to the case, or that the intended recipient refused all deliveries of certified

mail. See Etheredge v. Hidden Valley Airpark Ass’n, Inc., 169 S.W.3d 378, 382 (Tex. App.—Fort

Worth 2005, pet. denied); Roberts v. Roberts, 133 S.W.3d 661, 663 (Tex. App.—Corpus Christi

2003, no pet.).



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         Beck-Lutes contends Arning and the trial court knew he was not home and was not receiving

notices of the trial court’s hearings, pointing to the fact that the trial court had the San Antonio Police

Department conduct three welfare checks on Beck-Lutes. He contends he was on vacation during

the time most of the notices were served, and that because he did not sign for the certified mail and

his signature is not on file, he was not served. While the trial court did order the welfare checks out

of concern for Beck-Lutes’s health, the record shows that one of Beck-Lutes’s neighbors reported

he was returning from vacation August 21—before the notices for the summary judgment hearing

were mailed to him—and another neighbor reported she saw Beck-Lutes outside his home a few days

later.

         The record shows Beck-Lutes was mailed certified notices of the summary judgment hearing

on three separate occasions; in addition, he refused to claim certified mailings from Arning’s

attorneys and the temporary administrator of Rabke’s estate. In fact, Arning presented the trial court

with evidence that no less than ten items were sent by certified mail to Beck-Lutes, and none were

claimed. Over the course of two months, the post office left 20 notices in Beck-Lutes’s mailbox.

During this same period, Beck-Lutes, who was representing himself pro se, continued to send notices

and motions of his own. The trial court ruled this evidence showed Beck-Lutes received proper

service. We agree.

         In the alternative, Beck-Lutes argues that regardless of the notice issue, the court erred in

granting summary judgment because the record contained more than a scintilla of evidence he was

Rabke’s common law spouse. A trial court must grant a proper no-evidence motion for summary

judgment unless the nonmovant produces more than a scintilla of probative evidence to raise a

genuine issue of material fact on the challenged element of the claim. TEX . R. CIV . P. 166a(i). Beck-


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Lutes relies on the fact that the record included a transcript from a hearing in 2005 in which Rabke’s

stepdaughter testified that the couple agreed to be married, held themselves out as married, and lived

together in San Antonio. See TEX . FAM . CODE ANN . § 2.401(a)(2) (Vernon 2006) (outlining elements

of a common law marriage in Texas). He also points to a Durable Power of Attorney document in

which Rabke reportedly identifies Beck-Lutes as her husband.

        In light of our determination that service was proper, Beck-Lutes failed to file a timely

response to the No Evidence Motion for Summary Judgment. Pursuant to Texas Rule of Civil

Procedure 166a(c), Beck-Lutes had until September 27, 2007, seven days before the hearing on the

motions for summary judgment, to file either a response to the summary judgment motion or a

motion for leave to file the response after the due date. TEX . R. CIV . P. 166a(c); see Landers v. State

Farm Lloyds, 257 S.W.3d 740, 745 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Rule 166a(c)

provides in pertinent part that, “except on leave of court, the adverse party, not later than seven days

prior to the date of the hearing may file and serve opposing affidavits or other written responses.”

Id. Beck-Lutes’s response to the motion for summary judgment was untimely filed on October 2,

2007, the day before the summary judgment hearing.

        Even if Beck-Lutes had filed a timely response, in determining whether a summary judgment

respondent successfully carried its burden, the trial court is not required to wade through a

voluminous record to marshal the respondent’s proof. See Rogers v. Ricane Enters., Inc., 772

S.W.2d 76, 81 (Tex. 1989); Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex. App.—San

Antonio 2006, no pet.). Thus, when presenting summary judgment proof, a party must specifically

identify the supporting proof on file that it seeks to have considered by the trial court. See

Arredondo, 198 S.W.3d at 238. By failing to file a timely response to the summary judgment


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motion, Beck-Lutes necessarily failed to identify for the trial court the hearing transcript or durable

power of attorney document he now wants us to consider as evidence of the trial court’s error in

granting the summary judgment motion.

        Finally, Beck-Lutes argues the summary judgment was improper because there had not been

sufficient time for discovery. We cannot say the trial court erred in proceeding to rule on the motion

for summary judgment. Beck-Lutes did not ask for additional time to conduct discovery. More

importantly, the case had been on file for nearly two years, a factor the court could consider.

        Based on the above, Beck-Lutes’s second issue is overruled.

                                        NUNCUPATIVE WILL

        In his third issue, Beck-Lutes argues the trial court erred in granting the No Evidence Motion

for Partial Summary Judgment on the nuncupative will because there was inadequate time for

discovery. Beck-Lutes made his initial claim regarding the existence of a nuncupative will on

August 30, 2007. Arning filed a No Evidence Motion for Partial Summary Judgment on both the

common law marriage and the nuncupative will on September 7, 2007. Beck-Lutes argues that six

days was inadequate for discovery on the issue of the nuncupative will. However, “[w]hen a party

contends that it has not had an adequate opportunity for discovery before a summary judgment

hearing, it must file either an affidavit explaining the need for further discovery or a verified motion

for continuance.” Tenneco Inc. v. Enterprise Products Co., 925 S.W.2d 640, 647 (Tex. 1996) (citing

TEX . R. CIV . P. 166a(g), 251, 252). Beck-Lutes failed to do either, and consequently waived this

issue for appeal. See id. Beck-Lutes’s third issue is overruled.




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                                     DISCOVERY SANCTIONS

       In his fourth issue, Beck-Lutes argues the trial court abused its discretion granting discovery

sanctions against Beck-Lutes. In determining whether sanctions are appropriate, we consider

whether a direct relationship existed between the offensive conduct and the sanction imposed, and

whether the sanctions were excessive. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d

913, 917 (Tex. 1991). “[A] sanction imposed for discovery abuse should be no more severe than

necessary to satisfy its legitimate purposes, which include securing compliance with discovery rules,

deterring other litigants from similar misconduct, and punishing violators.” Spohn Hosp. v. Mayer,

104 S.W.3d 878, 882 (Tex. 2003) (citing TransAmerican, 811 S.W.2d at 917; Chrysler Corp. v.

Blackmon, 841 S.W.2d 844, 849 (Tex. 1992)).

       On June 4, 2007, Arning served Beck-Lutes a set of ten interrogatories and twenty-five

document requests. Pursuant to the Texas Rules of Civil Procedure, Beck-Lutes had thirty-three

days to submit responses to Arning. TEX . R. CIV . PROC. 197.2(a), 196.2(a). Beck Lutes missed the

July 9 deadline. On June 29, Beck-Lutes’s attorney was replaced by a different attorney; on July 2,

the new attorney filed a Motion for Continuance and Entry of Scheduling Order. The motion was

heard and granted, and a written order was signed July 20. On that same day, Beck-Lutes’s new

attorney withdrew from the case; from that point forward, he represented himself pro se.

       In the order signed July 20, the trial court extended Beck-Lutes’s discovery deadline, giving

him until August 3, 2007 to respond to Arning’s earlier discovery request. Beck-Lutes did not

comply with the trial court’s order. On August 31, Arning filed and served a motion for sanctions

against Beck-Lutes for discovery abuse; the motion included a notice setting the motion for hearing

on October 3, 2007. On October 3, in addition to granting Arning’s motion for summary judgment


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against Beck-Lutes, the trial court also granted a motion for discovery sanctions against him based

on his refusal to respond to Arning’s discovery requests.

       Beck-Lutes argues that the discovery sanctions were unjustified because he had no notice that

any discovery responses were ever due, as he did not receive notice of Arning’s discovery motions

or the discovery orders in July, August, and September leading up to the entry of the October 3

sanctions order. However, the same reasoning utilized in our discussion of issue two applies here.

Arning produced evidence that notice of the discovery motions was sent to Beck-Lutes in

compliance with Rule 21a of the Texas Rules of Civil Procedure. See TEX . R. CIV . P. 21a. Although

Beck-Lutes claims he did not receive notice because he never accepted the documents, certified

notices were sent to his permanent address. Even if he did not receive actual notice, constructive

notice was established by Arning’s compliance with Rule 21a and evidence showing that Beck-

Lutes appeared to participate in selective acceptance of case documents. See Etheredge v. Hidden

Valley Airpark Ass’n, Inc., 169 S.W.3d 378, 382 (Tex. App.—Fort Worth 2005, pet. denied);

Roberts v. Roberts, 133 S.W.3d 661, 663 (Tex. App.—Corpus Christi 2003, no pet.).

       The sanctions imposed on Beck-Lutes, namely the finding that he was never the common law

spouse of Rabke and could no longer make any claims to that effect, directly related to his offensive

conduct: failing to supply discovery responses to Arning on that very issue. See TransAmerican, 811

S.W.2d at 917 (requiring a direct relationship between the offensive conduct and the sanction

imposed). Considering the length of time the case had been on the docket, as well as the many

notices sent to Beck-Lutes and the numerous opportunities given to him to appear before the court

and argue his case, the sanctions imposed were not excessive. See id. (holding that in order to be




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just, discovery sanctions cannot be excessive). Consequently, we conclude the discovery sanctions

imposed were just and appropriate. Beck-Lutes’s fourth issue is overruled.

                                           JURY TRIAL

       In his fifth issue, Beck-Lutes argues the trial court abused its discretion in denying him a

properly demanded jury trial.   The summary judgment process provides a method of terminating

a case when only questions of law are involved and there are no genuine issues of fact. See Bliss v.

NRG Industries, 162 S.W.3d 434, 437 (Tex. App.—Dallas 2005, pet. denied). While the summary

judgment process does not deprive parties of a jury trial where material questions of fact exist, if

there is nothing to submit to a jury, then the grant of summary judgment does not violate a party’s

constitutional right to a jury trial. See id. See also Lattrell v. Chrysler Corp., 79 S.W.3d 141, 150

(Tex. App.—Texarkana 2002, pet. denied). Because we conclude the trial court properly granted

summary judgment determining Beck-Lutes was not Rabke’s common law spouse, there was no

genuine issue of material fact concerning Beck-Lutes’s claim he was Rabke’s husband.

       Beck-Lutes argues that he is also entitled to a jury trial because a “defaulting” defendant in

a family law matter is still entitled to rely on a jury demand and have a jury trial on any fact

questions related to the family law issue when the jury demand is not struck. This argument is

premised on the holding in In re A.S., 241 S.W.3d 661, 665-66 (Tex. App.—Texarkana 2007, no

pet.) (holding the effect of default in a custody modification proceeding is different from other

defaults in that allegations in the motion to modify may not be taken as confessed for want of an

answer, and even on default the movant must prove up the required allegations of the motion to

modify). However, the ruling of the trial court in In re A.S. was specifically directed at cases

involving modification of the parent-child relationship, as outlined in section 105.002 of the Family


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Code. See id; TEX . FAM . CODE ANN . § 105.002(c)(1) (Vernon Supp. 2008). This ruling does not

apply to cases involving establishment of a common law marriage. Consequently, Beck-Lutes had

no right to a jury trial following the trial court’s summary judgment decision, and his fifth issue is

overruled.

                              JURISDICTION TO GRANT SANCTIONS

        In his sixth issue, Beck-Lutes argues the trial court acted without jurisdiction in granting

discovery sanctions after granting the Motion for Partial Summary Judgment. Beck-Lutes contends

the case finalized upon the trial court granting the summary judgment against him, and therefore, the

court lost jurisdiction to take further action against him. See Bazan v. Canales, 200 S.W.3d 844, 848

(Tex. App.—Corpus Christi 2006, no pet.) (stating that once a final judgment is rendered, the court

loses jurisdiction to grant additional relief). However, a summary judgment that fails to dispose

expressly of all parties and issues in the pending suit is interlocutory and not appealable unless a

severance of that phase of the case is ordered by the trial court. See Sada De Ayala v. Merrill Lynch

and Co., Inc., No. 04-01-00615-CV, 2002 WL 598460, *1 (Tex. App.—San Antonio April 17, 2002,

no pet.).    The sanctions order and the partial summary judgment order were signed

contemporaneously, and both orders remained interlocutory until the Order of Severance was signed

on October 22, 2007. Consequently, the court had jurisdiction when it signed the sanctions order

against Beck-Lutes. His sixth issue is overruled.

                               DAMAGES FOR FRIVOLOUS APPEAL

       Arning filed a “Motion Seeking Damages for Appellant's Frivolous Appeal,” alleging that

Beck-Lutes’s appeal was so lacking in merit that it must be deemed frivolous. Appellate courts have

the discretion to award damages for frivolous appeals. TEX . R. APP . P. 45. “[W]e exercise [this

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discretion] with prudence and caution, and only after careful deliberation,” and we impose sanctions

“only in circumstances that are truly egregious. In re Estate of Mask, No. 04-07-00667-CV, 2008 WL

4595027, *17 (Tex. App.—San Antonio Oct. 15, 2008, no pet. h.) (citing Chapman v. Hootman, 999

S.W.2d 118, 124 (Tex. App.—Houston [14th Dist.] 1999, no pet). Beck-Lutes has made a good-faith

challenge to the trial court’s judgment. See id. We decline to award sanctions under these

circumstances. Arning’s motion for sanctions is denied.

                                             CONCLUSION

       Beck-Lutes failed to prove he was entitled to a new trial pursuant to Rule 34.6(b) of the Texas

Rules of Appellate Procedure. In addition, the trial court did not err in granting the No Evidence

Motion for Partial Summary Judgment on the common law marriage claim and the nuncupative will

claim, nor did the trial court abuse its discretion in granting discovery sanctions against Beck-Lutes

or in denying Beck-Lutes a jury trial. Finally, the trial court acted within its jurisdiction in granting

discovery sanctions contemporaneously with granting the No Evidence Motion for Partial Summary

Judgment. Accordingly, the trial court’s judgment is affirmed.




                                                         Catherine Stone, Chief Justice




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