      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00007-CV



                       Donald Harrell and Shirley Temesgen, Appellants

                                                  v.

               Kris Hochderffer, as Trustee of the Clark Family Trust, Appellee


                    FROM PROBATE COURT NO. 1 OF TRAVIS COUNTY
              NO. 85,570-C, HONORABLE GUY S. HERMAN, JUDGE PRESIDING



                                           OPINION


                Appellants Donald Harrell and Shirley Temesgen appeal the trial court’s denial of

their motion for summary judgment and grant of partial summary judgment in favor of appellee Kris

Hochderffer, in his capacity as trustee of the Clark Family Trust. The underlying dispute involves

a personal-injury settlement received by the appellants’ mother, Jessie Mae Clark, and stepfather,

Rudie Clark, and a trust agreement entered into by Jessie Mae and Rudie.1 Harrell and Temesgen

sought a declaratory judgment that the proceeds Rudie received from the settlement and deposited

into the trust represented community property. The trial court granted summary judgment in favor

of Hochderffer, concluding that the settlement funds received by Rudie were separate property.

                On appeal, Harrell and Temesgen contend that the trial court erred in issuing its order

on summary judgment because as a matter of law, the settlement proceeds received by Rudie and


       1
           To avoid confusion, we will refer to the Clarks by their first names.
deposited into the trust were the community property of Rudie and Jessie Mae. We affirm the trial

court’s order.


                                          BACKGROUND

                 In 1999, Rudie and Jessie Mae Clark brought a personal-injury suit against a nursing

home where Rudie had received treatment after suffering a stroke in 1997. The suit was pursued by

the couple’s daughter, Deborah Clark, as “next friend” of the couple. In the petition, Rudie and

Jessie Mae alleged that the nursing home was negligent in its treatment of Rudie and that the nursing

home’s negligence led to the amputation of both of Rudie’s legs. Rudie and Jessie Mae sought

damages for past and future mental anguish experienced by Rudie, past and future pain and suffering

experienced by Rudie, past and future disfigurement and impairment, Rudie’s past and future

medical expenses, and exemplary damages. Jessie Mae brought a separate claim for loss of

consortium.

                 The parties eventually settled the lawsuit and executed a settlement agreement in June

2002. In the settlement agreement, Rudie and Jessie Mae each agreed to dismiss the suit in exchange

for a separate lump sum. Specifically, the agreement stated: “Plaintiff Rudie Clark hereby agrees

to dismiss the Action, with prejudice . . . in consideration for the sum of $[redacted]. Plaintiff Jessie

Mae Clark hereby agrees to dismiss the Action, with prejudice . . . in consideration of the sum of

$[redacted].”2 The agreement did not otherwise break down the settlement amounts according to




        2
        The settlement amounts were redacted pursuant to an agreed protective order entered into
by Deborah, Harrell, and Temesgen, in which they agreed that the personal-injury settlement
amounts would remain confidential.

                                                   2
the types of damages requested in Rudie and Jessie Mae’s petition. Deborah signed the settlement

agreement on behalf of each of her parents. On July 9, 2002, the trial court appointed a guardian ad

litem for Rudie and Jessie Mae. On July 18, the trial court issued an order approving the settlement

agreement and dismissing the personal-injury suit.

                On November 5, 2002, Rudie and Jessie Mae executed a trust document titled, “The

Clark Family Trust.” Hochderffer testified by affidavit that he was the trust manager of State Bank

Trust and that State Bank Trust served as the trustee of the Clark Family Trust at the time the trust

agreement was executed.3 A document attached to the trust agreement, titled, “Schedule of

Property,” lists the couple’s contributions to the trust and characterizes the contributions as separate

property:


        Cash: $10.00 as the separate property of RUDIE CLARK and $10.00 as the separate
        property of JESSIE MAE CLARK.

        Settlement proceeds on behalf of RUDIE CLARK from the [personal-injury
        settlement] in the approximate amount of $[redacted], as the separate property of
        RUDIE CLARK.

        Settlement proceeds on behalf of JESSIE MAE CLARK from the [personal-injury
        settlement] in the approximate amount of $[redacted], as the separate property of
        JESSIE MAE CLARK.


Hochderffer testified by affidavit that shortly after the trust agreement was executed, Rudie and

Jessie Mae’s attorney delivered two checks to him that were to serve as Rudie and Jessie Mae’s




        3
          In April 2003, National Fiduciary Services purchased the assets of State Bank Trust and
replaced State Bank Trust as trustee. A short time later, National Fiduciary Services resigned as
trustee, and Hochderffer, in his individual capacity, became trustee.

                                                   3
initial contributions to the Clark Family Trust. Copies of the checks in the record show that the

checks were made payable to State Bank Trust. One of the checks was made out in the amount of

$11,476.11 and included a notation stating “on behalf of Jessie Clark” on the memo line, and the

other was made out in an amount that has since been redacted and included a notation stating “on

behalf of Rudie Clark” on the memo line.

               The trust agreement provided that any community property of the spouses would

retain its character as community property and that any separate property of the spouses would retain

its character as separate property. According to the trust agreement, the trustee “shall presume that

all property added to the trust by a Settlor is the separate property of that Settlor unless designated

as community property in writing at the time such transfer is made.” The trustee was also required

to “keep separate, identifiable accounts for each Settlor’s separate property” and “separate,

identifiable accounts for any community property.” The trust agreement further provided that upon

the death of both spouses, the trust estate would be divided into two separate shares, one share for

the estate of Rudie and one share for the estate of Jessie Mae. Rudie’s share would consist of his

separate property and his interest in any community property in the trust estate, while Jessie Mae’s

share would consist of her separate property and her interest in any community property in the trust

estate. Rudie’s share would be held and administered for the benefit of Deborah. Jessie Mae’s share

would be divided equally among Deborah, Harrell, and Temesgen.4




       4
          While Deborah, Harrell, and Temesgen are all Jessie Mae’s children, only Deborah is
Rudie’s biological child. Harrell and Temesgen are Jessie Mae’s children from a previous marriage,
and Rudie’s step-children.

                                                  4
               Rudie died in October 2003, and Jessie Mae died in April 2006. In October 2006,

Harrell and Temesgen filed suit against Deborah, alleging tortious interference with inheritance.

Later, Harrell and Temesgen added Hochderffer as a defendant and sought a declaratory judgment

that the personal-injury settlement proceeds received by Rudie and contributed to the trust were

community property. They also sought a full and complete accounting of the Clark Family Trust.

All of the parties filed motions for summary judgment, and the trial court granted Deborah’s motion

in its entirety and Hochderffer’s motion in part.5 The trial court denied Harrell and Temesgen’s

motion for summary judgment. The trial court then severed its grant of Deborah’s motion and partial

grant of Hochderffer’s motion from the rest of the cause so that the rulings could be appealed.

Harrell and Temesgen now appeal the partial grant of Hochderffer’s motion and the denial of their

own motion.


                                    STANDARD OF REVIEW

               Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). To prevail on a motion for summary judgment, the movant must

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

Far West, Ltd. v. Texas Invs. Mgmt., Inc., 127 S.W.3d 295, 301 (Tex. App.—Austin 2004, no pet.).

Evidence favorable to the non-movant is taken as true and every reasonable inference must be

indulged in favor of the non-movant and any doubts resolved in its favor. Id.




       5
         The trial court denied Hochderffer’s motion with respect to the question of whether
Hochderffer had provided a complete accounting of Jessie Mae’s share of the trust.

                                                  5
                When, as here, both parties move for summary judgment on the same issues, and the

trial court grants one motion and denies the other, the appellate court considers the

summary-judgment evidence presented by both sides, determines all questions presented, and if the

reviewing court finds that the trial court erred, renders the judgment the trial court should have

rendered. Id.


                                          DISCUSSION

                Harrell and Temesgen’s arguments can be summarized in three issues on appeal.

First, Harrell and Temesgen argue that the trial court erred in denying their motion for summary

judgment and granting Hochderffer’s motion because as a matter of law, the personal-injury

settlement proceeds received by Rudie and subsequently contributed to the Clark Family Trust were

community property, rather than separate property. Second, Harrell and Temesgen contend that

Rudie and Jessie Mae never executed a valid partition agreement to convert the settlement proceeds

from community property to separate property. Third, they argue that Rudie and Jesse Mae lacked

the necessary mental capacity to execute the documents relied upon by Hochderffer to support his

motion for summary judgment. We will address each of these contentions in turn.


Character of the Settlement Proceeds

                In general, property possessed by either spouse during or on dissolution of marriage

is presumed to be community property, absent clear and convincing evidence to the contrary. See

Tex. Fam. Code Ann. § 3.003 (West 2006). Property owned or claimed by the spouse prior to the

marriage is that spouse’s separate property. Id. § 3.001(1) (West 2006). Of relevance to this appeal,



                                                 6
a spouse’s separate property also includes “recovery for personal injuries sustained by the spouse

during marriage, except for any loss of earning capacity during marriage.” Id. § 3.001(3). In

addition to the statutory exception for loss of earning capacity, courts have treated amounts

recovered for medical expenses as community property. See Graham v. Franco, 488 S.W.2d 390,

396 (Tex. 1972) (characterizing amounts recovered for payment of medical expenses as community

property because payment of such expenses “is the burden of the community”). Amounts recovered

for disfigurement, past and future mental anguish, and past and future physical pain and suffering

are considered separate property. See Licata v. Licata, 11 S.W.3d 269, 273 (Tex. App.—Houston

[14th Dist.] 1999, pet. denied).

               When a spouse receives a personal-injury settlement from a lawsuit during marriage,

some of which could be separate property and some of which could be community property, it is that

spouse’s burden to demonstrate which portion of the settlement is his or her separate property.

Licata, 11 S.W.3d at 273; Kyles v. Kyles, 832 S.W.2d 194, 198 (Tex. App.—Beaumont 1992, no

pet.). Clear and convincing evidence showing the recovery is solely for the personal injury of a

particular spouse is necessary to overcome the presumption that the settlement proceeds represent

community property. Licata, 11 S.W.3d at 273.

               In this case, Rudie and Jessie Mae received the personal-injury settlement proceeds

during their marriage, triggering the general presumption that property possessed during marriage

is community property. See Tex. Fam. Code Ann. § 3.003. The petition in the personal-injury suit

sought past and future medical expenses, which would be classified as community property, as well

as pain and suffering, mental anguish, and disfigurement, which would be classified as Rudie’s



                                                7
separate property. See id. § 3.001(3); Graham, 488 S.W.2d at 396; Licata, 11 S.W.3d at 273. The

petition also sought damages for Jessie Mae’s loss of consortium, which would be considered the

separate property of Jessie Mae. See Whittlesey v. Miller, 572 S.W.2d 665, 669 (Tex. 1978).

Because the settlement could potentially include amounts representing both separate and community

property, Hochderffer bears the burden of overcoming the presumption that the entirety of the

settlement proceeds are community property. See Licata, 11 S.W.3d at 273.

               The settlement agreement itself does not specify the type of damages for which the

settlement proceeds were paid.        However, to rebut the community-property presumption,

Hochderffer provided copies of the Clark Family Trust agreement, which included an attachment

titled, “Schedule of Property.” This Schedule of Property characterized Rudie’s and Jessie Mae’s

individual portions of the settlement proceeds as separate property, to be contributed to the trust as

their respective individual contributions. Specifically, the Schedule of Property stated:


       Cash: $10.00 as the separate property of RUDIE CLARK and $10.00 as the separate
       property of JESSIE MAE CLARK.

       Settlement proceeds on behalf of RUDIE CLARK from the [personal-injury
       settlement] in the approximate amount of $[redacted], as the separate property of
       RUDIE CLARK.

       Settlement proceeds on behalf of JESSIE MAE CLARK from the [personal-injury
       settlement] in the approximate amount of $[redacted], as the separate property of
       JESSIE MAE CLARK.


Hochderffer’s summary-judgment evidence also included copies of two checks, made payable to the

Clark Family Trust, that represented Rudie’s and Jessie Mae’s individual contributions to the trust.

The amount of the check made on behalf of Rudie has been redacted, and the amount of the check

                                                  8
made on behalf of Jessie Mae was $11,476.11. The Schedule of Property demonstrates that both

Rudie and Jessie Mae viewed their individual portions of the settlement proceeds as separate

property, which in turn indicates that they had intended to settle the personal-injury suit to

compensate for their own individual injuries, rather than any injury to the community. The checks

and the Schedule of Property also establish the intention of Rudie and Jessie Mae that their

individual contributions to the trust, the majority of which came from the personal-injury settlement,

represented separate property.6

               The intention of the spouses, shown by the circumstances surrounding the inception

of title, is the major consideration in determining whether property is community or separate.

Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.); Scott v. Estate of Scott,

973 S.W.2d 694, 695 (Tex. App.—El Paso 1998, no pet.). Inception of title occurs when the right

to own or claim the property arises. See Tex. Fam. Code Ann. § 3.404(a) (West 2006). The

execution of the Settlement of Property and the funding of the Clark Family Trust occurred less than

four months after the personal-injury settlement was approved by the trial court, sufficiently

proximate in time to be considered circumstances surrounding the inception of title.7




       6
         The Clark Family Trust agreement also includes a provision stating that “the Trustee shall
presume that all property added to the Trust by a Settlor is the separate property of the Settlor unless
designated as community property in writing at the time such transfer is made.” The record contains
no written designation of any trust contribution as community property.
       7
         The trial court’s order approving the settlement and dismissing the personal-injury suit was
dated July 18, 2002, and stated that the settlement amounts were to be paid to Rudie and Jessie Mae
within seven days of the date of the order. There is nothing in the record to indicate the date that the
settlement amounts were actually paid. The Clark Family Trust was created and funded on
November 5, 2002.

                                                   9
               Another circumstance surrounding the inception of title is the settlement agreement

itself, which distinguishes between the spouses in describing the settlement amounts, rather than

listing a single lump-sum to be paid to both Rudie and Jessie Mae. Specifically, the settlement

agreement states: “Plaintiff Rudie Clark hereby agrees to dismiss the Action, with prejudice . . . in

consideration for the sum of $[redacted]. Plaintiff Jessie Mae Clark hereby agrees to dismiss the

Action, with prejudice . . . in consideration of the sum of $[redacted].” This language suggests that

Jessie Mae’s individual settlement amount represented damages for her loss of consortium, while

Rudie’s individual settlement amount represented damages for his claims of mental anguish,

disfigurement, and pain and suffering.

               The couple’s intention to settle the personal-injury suit for amounts representing

separate property, as indicated by the settlement agreement, the Schedule of Property, and the initial

contributions to the trust, is consistent with the elements of damages sought in the personal-injury

suit. Rudie and Jessie Mae did not seek damages for loss of Rudie’s earning capacity, presumably

due to the fact that at the time of his injury, Rudie was 88 years old and physically unable to work.

The only element of damages sought in the personal-injury suit that may be characterized as

community property would be Rudie’s medical expenses, as medical expenses represent a

community obligation. See Graham, 488 S.W.2d at 396. Hochderffer testified by affidavit that as

trustee of the trusts created by the Clark Family Trust agreement, he repaid all sums owing to

Medicaid and paid all of Rudie’s medical expenses for the remainder of Rudie’s lifetime from

Rudie’s separate trust. In light of Hochderffer’s testimony that all of Rudie’s medical expenses have

been paid, no community obligation remains with respect to medical expenses. To the extent the



                                                 10
settlement amount might have included an award for Rudie’s medical expenses, those funds would

have been expended to repay Medicaid and cover the remainder of the medical expenses. See

Hill v. Hill, 971 S.W.2d 153, 158 (Tex. App.—Amarillo 1998, no pet.) (describing presumption that

when separate and community funds are commingled, separate funds “sink to the bottom” and

community funds are withdrawn first); see also Slaton v. Slaton, 987 S.W.2d 180, 183 (Tex.

App.—Houston [14th Dist.] 1999, pet. denied) (deducting amount of actual medical expenses from

lump-sum settlement proceeds before determining proper characterization of remaining funds).8

               The petition filed in the personal-injury lawsuit also sought exemplary damages.

Harrell and Temesgen cite Rosenbaum v. Texas Building & Mortgage Co., 167 S.W.2d 506, 508

(Tex. 1943), for the proposition that a recovery for exemplary damages is characterized as

community property. In Rosenbaum, the supreme court noted that where one spouse sought

exemplary damages in a suit for fraud, rescission of a contract, and cancellation of a note, “such

damages, if recovered, would have belonged to the community.” Id. This statement is not only

dicta, but was made in the context of a contract dispute, rather than a claim for personal injuries.9

       8
          We note also that in Graham v. Franco, the supreme court declined to express an opinion
on whether personal-injury awards for medical expenses maintain their character as community
property when the medical expenses were paid from the separate funds of the injured spouse.
488 S.W.2d 390, 396 n.5 (Tex. 1972). This leaves open the possibility that when an injured spouse
has used separate property to fully satisfy the community obligation regarding medical expenses, a
personal-injury award intended to govern medical expenses might be better classified as separate
property.
       9
          The court also observed that part of the relief sought was cancellation of a note executed
by both spouses, so that “the suit in greater part was clearly for the benefit of the community.”
Rosenbaum v. Texas Bldg. & Mortgage Co., 167 S.W.2d 506, 508 (Tex. 1943). In a personal-injury
suit such as the one at issue here, where the injured spouse has suffered the amputation of his legs
but lacked any remaining earning capacity, it cannot be said that “the suit in greater part was clearly
for the benefit of the community.”

                                                  11
A recovery for personal injuries, such as the one at issue here, is expressly characterized as separate

property under the family code, with a statutory exception for any recovery for loss of earning

capacity during the marriage. See Tex. Fam. Code Ann. § 3.001(3). The only additional exceptions

acknowledged by Texas courts are funds recovered for “medical expenses incurred during marriage,

and . . . other expenses associated with injury to the community estate.” Licata, 11 S.W.3d at 273.

Unlike lost earning capacity and medical expenses, however, exemplary damages do not represent

income to which the community is entitled or an expense for which the community is liable. An

exemplary damages recovery is merely “a private windfall,” levied for the public purpose of

punishment and deterrence, and is not associated with an injury to the community estate. See

Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 17 (Tex. 1994). Because an exemplary-damages

award does not fall under any exception to the general rule that the recovery for personal injuries is

separate property, such damages must be characterized as separate property under family code

section 3.001(3). See Tex. Fam. Code Ann. § 3.001(3). Thus, assuming without deciding that any

of the settlement proceeds received by Rudie were meant to represent exemplary damages, such

proceeds would have been characterized as his separate property. Likewise, any settlement proceeds

received by Jessie Mae as exemplary damages in connection with her loss of consortium claim would

have been characterized as her separate property.

               In light of the foregoing, we hold that Hochderffer has provided clear and convincing

evidence to overcome the presumption that the personal-injury settlement proceeds were community

property and to establish their nature as separate property. See Licata, 11 S.W.3d at 273. Harrell

and Temesgen relied solely on this presumption to support their claim that the settlement funds were



                                                  12
community property, presenting no additional evidence to suggest that the funds should be

characterized as community property. We conclude that Hochderffer has defeated Harrell and

Temesgen’s claim for declaratory relief as a matter of law, and the trial court did not err in granting

summary judgment in favor of Hochderffer. The appellants’ first issue on appeal is overruled.


Partition Agreement

               In their second issue, Harrell and Temesgen argue that neither the Clark Family Trust

agreement nor the personal-injury settlement agreement constitutes a valid partition agreement.

However, because we have already determined that the settlement proceeds were separate property,

no partition agreement was necessary. See Tex. Fam. Code Ann. § 4.102 (West 2006) (allowing

spouses to enter into partition agreement to convert community property into separate property). As

a result, we need not address this issue.


Mental Capacity

               In their third and final issue, Harrell and Temesgen argue that Rudie and Jessie Mae

were mentally incapacitated at the time they executed the Clark Family Trust agreement and the

accompanying Schedule of Property. Harrell and Temesgen did not raise this issue in their petition

or motion for summary judgment, but raised it for the first time in their response to Hochderffer’s

motion for summary judgment. Because the Trust Agreement would be rendered unenforceable if

the appellants prevail on their mental-incapacity claim, the claim is in the nature of an affirmative

defense or a matter in avoidance. See Tex. R. Civ. P. 94. To defeat summary judgment by raising

an affirmative defense, the non-movant must present summary-judgment evidence that raises a fact



                                                  13
issue on each element of the defense. American Petrofina v. Allen, 887 S.W.2d 829, 830

(Tex. 1994); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).10

               To establish mental capacity to execute a deed or contract, the grantors must have

had sufficient mind and memory at the time of execution to understand the nature and effect of

their act. Decker v. Decker, 192 S.W.3d 648, 652 (Tex. App.—Fort Worth 2006, no pet.);

Jackson v. Henninger, 482 S.W.2d 323, 325 (Tex. Civ. App.—Austin 1972, no writ). The proper

inquiry is the condition of the grantors’ minds on the day the deed or contract was executed, and any

evidence from before or after the date of execution must be near enough in time to be probative of

the grantors’ mental capacity on the execution date. See Turner v. Hendon, 269 S.W.3d 243, 252

(Tex. App.—El Paso 2008, pet. denied); Dubree v. Blackwell, 67 S.W.3d 286, 290

(Tex. App.—Amarillo 2001, no pet.); Bradshaw v. Naumann, 528 S.W.2d 869, 875 (Tex. Civ.

App.—Austin 1975, writ dism’d) (“The proper inquiry is the condition of the grantor’s mind on the

day the deed was executed and not whether she was . . . of unsound mind at another time prior to or

after the making of the deed.”).

               To support their claim that Rudie was mentally incapacitated at the time the Clark

Family Trust agreement was executed, Harrell and Temesgen point to the agreement’s signature

page, which shows that Rudie signed the agreement with what appears to be a “G” next to an


       10
          Even if we did not characterize this claim as an affirmative defense or matter in avoidance,
Harrell and Temesgen would still bear the burden of raising a fact issue on mental capacity, as the
burden of proof rests on those seeking to set aside a deed or contract to show lack of mental capacity
of the grantor at the time of execution. See Decker v. Decker, 192 S.W.3d 648, 652
(Tex. App.—Fort Worth 2006, no pet.); Jackson v. Henninger, 482 S.W.2d 323, 324-25 (Tex. Civ.
App.—Austin 1972, no writ); see also Estate of Galland v. Rosenberg, 630 S.W.2d 294, 297
(Tex. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.).

                                                 14
unintelligible mark, despite the fact that Rudie had no “G” in his name. While circumstantial

evidence may be offered to raise an issue of material fact, such evidence must transcend mere

suspicion. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Evidence that is so slight

as to make any inference a guess is in legal effect no evidence. Id. Here, an inference of mental

incapacity does not rise above a mere suspicion, as Rudie’s difficulty in signing his name may be

explained by physical disability just as easily as mental incapacity. In either case, the inference

would be a mere guess or suspicion. In addition, Harrell and Temesgen represent in their amended

petition that Rudie was unable to read or write. Thus, Rudie’s use of the letter “G” and an

unintelligible mark as his signature might also be explained by his inability to read and write.11

Under the circumstances, Rudie’s signature fails to raise an issue of material fact with respect to his

mental capacity. See id.; Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex. 1984)

(“When circumstances are consistent with either of . . . two facts and nothing shows that one is more

probable than the other, neither fact can be inferred.”).

               Harrell and Temesgen also point to evidence from before and after the date of

execution of the trust agreement as evidence that Rudie and Jessie Mae were mentally incapacitated

on the date of execution. Four months prior to the date of execution, the trial court appointed a

guardian ad litem for Rudie and Jessie Mae in their personal-injury suit. However, the appellants

have not cited, and we have not found, any authority for the proposition that the appointment of a


       11
          The record contains an affidavit in which Rudie and Jessie Mae’s estate-planning attorney
avers that he read and explained the trust agreement to Rudie and Jessie Mae on the date of
execution. This affidavit indicates that despite Rudie’s apparent inability to read the trust agreement,
he was aware of its contents. The affidavit further states, “I witnessed [Rudie] place his mark on the
trust document, and [Jessie Mae] signed it herself.”

                                                  15
guardian ad litem establishes that a party is mentally incapacitated. Like Rudie’s signature, the

evidence could just as easily indicate that Rudie and Jessie Mae were physically incapacitated,

making any inference of mental incapacity a mere guess.12 Thus, the appointment of a guardian ad

litem in the personal-injury suit is in legal effect no evidence of mental incapacity. See Ridgway,

135 S.W.3d at 601; Gammage, 668 S.W.2d at 324.

               The remaining evidence offered by Harrell and Temesgen to support their claim of

mental incapacity includes: (1) a doctor’s report indicating that in 1997, five years prior to the

execution of the trust agreement, Rudie was incapable of repositioning himself due to his physical

and mental capabilities after suffering a stroke; (2) documents showing that Deborah filed the

personal-injury suit as Rudie and Jessie Mae’s “next friend” in 1999, three years prior to the

execution of the trust agreement; (3) a February 2004 application for appointment of a guardian for

Jessie Mae, filed more than a year after the execution of the trust agreement, stating that Jessie Mae

was “totally incapacitated” and suffered from Alzheimer’s disease; and (4) a May 2005 letter from

Jessie Mae’s physician to the trial court, dated more than two years after the execution of the trust

agreement, stating that Jessie Mae “require[d] constant supervision due to her dementia.” Evidence

from years before and more than a year after the execution of the trust agreement, without evidence

showing that the same condition existed at the time of the execution of the trust agreement, is not

probative of the mental capacity of Rudie and Jessie Mae to execute the trust agreement. See Turner,

269 S.W.3d at 252; Dubree, 67 S.W.3d at 289; Bradshaw, 528 S.W.2d at 875.




       12
          There is nothing in the record to indicate the reason a guardian ad litem was appointed in
the personal-injury suit.

                                                 16
               Because there is no evidence to establish that either Rudie or Jessie Mae was mentally

incapacitated on the date they executed the trust agreement or the accompanying Schedule of

Property, Harrell and Temesgen have failed to raise an issue of material fact as to Rudie’s and Jessie

Mae’s mental capacities on that date. See Ridgway, 135 S.W.3d at 601; Gammage, 668 S.W.2d at

324. We overrule their third issue on appeal.


                                          CONCLUSION

               We affirm the trial court’s order granting partial summary judgment in favor of

Hochderffer and denying the motion for summary judgment filed by Harrell and Temesgen.




                                               __________________________________________

                                               Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson;
 Dissenting opinion by Justice Puryear

Affirmed

Filed: June 10, 2011




                                                 17
