                                  NO. 12-09-00256-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

IN THE ESTATE OF                             §      APPEAL FROM THE 294TH

ERNEST H. WARREN,
                                             §      JUDICIAL DISTRICT COURT
DECEASED

                                             §      VAN ZANDT COUNTY, TEXAS

                                     MEMORANDUM OPINION
       Beverly Ann Corey (“Corey”) and Stephen Leonard Warren (“Warren”) appeal from the
trial court‟s order granting Claude Michael Rightmire‟s motion for summary judgment in Corey
and Warren‟s contest of the Last Will and Testament of Ernest H. Warren (“Ernest”). In two
issues, Corey and Warren contend that no evidence summary judgment was improper because a
genuine issue of material fact existed as to whether Ernest lacked testamentary capacity when he
executed the will and whether his wife of thirty-five years, Martha Jo Warren, exercised undue
influence on him at such time. We modify the judgment and affirm as modified.

                                         BACKGROUND
       Ernest and Martha Jo were married in 1970.          No children were born during their
marriage. Ernest had three children from a prior marriage, including Corey and Warren. In
1993, Ernest executed a will leaving his estate to Martha Jo. Ernest died in 2005. Corey and
Warren contested Martha Jo‟s attempt to probate their father‟s will. Martha Jo died in 2006
while their contest to the will was still pending. Rightmire, as co-independent executor, filed an
amended application to probate Ernest‟s will following Martha Jo‟s death. Rightmire then filed
a hybrid no evidence and traditional motion for summary judgment. Corey and Warren filed a
response with attached affidavits and depositions. Rightmire filed objections to the affidavits
and depositions.
       On May 15, 2009, the trial court sustained Rightmire‟s objections to the affidavits and
depositions. The trial court subsequently granted Rightmire‟s no evidence motion for summary
judgment, stating that Corey and Warren had failed to produce any evidence to support their
claims. Corey and Warren timely filed this notice of appeal.

                                      SUMMARY JUDGMENT
       In their first issue, Corey and Warren contend that the trial court improperly granted
summary judgment because they had raised the issue of Ernest‟s testamentary capacity. In their
second issue, they assert that the trial court improperly granted summary judgment because they
had raised the issue of Martha Jo‟s undue influence.
Standard of Review
       We review a trial court‟s granting of summary judgment de novo. Mid-Century Ins. Co.
of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). When performing a de novo review, we
exercise our own judgment and redetermine each issue of fact and law. See Schade v. Tex.
Workers’ Comp. Comm’n, 150 S.W.3d 542, 549 (Tex. App.—Austin 2004, pet. denied) (citing
Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999)). A no evidence summary judgment
motion is essentially a motion for a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 581-82 (Tex. 2006) (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997)). Once such a motion is filed, the burden shifts to the nonmoving party to
present evidence raising a genuine issue of material fact as to the elements specified in the
motion. Mack Trucks, 206 S.W.3d at 582 (citing Havner, 953 S.W.2d at 711). A no evidence
motion for summary judgment must be granted if (1) the moving party asserts that there is no
evidence of one or more specified elements of a claim or defense on which the adverse party
would have the burden of proof at trial; and (2) the respondent produces no summary judgment
evidence raising a genuine issue of material fact on those elements. Sudan v. Sudan, 199 S.W.3d
291, 292 (Tex. 2006) (citing TEX. R. CIV. P. 166a(i)). A fact is “material” if it affects the
ultimate outcome of the lawsuit under the governing law. Acad. of Skills & Knowledge, Inc. v.
Charter Sch., USA, Inc., 260 S.W.3d 529, 534 (Tex. App.—Tyler 2008, pet. denied); Pierce v.
Wash. Mut. Bank, 226 S.W.3d 711, 714 (Tex. App.—Tyler 2007, pet. denied). A material fact
issue is “genuine” if the evidence is such that a reasonable jury could find the fact in favor of the
nonmoving party. Acad. of Skills, 260 S.W.3d at 534; Pierce, 226 S.W.3d at 714.




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Discussion
       Corey and Warren contend that the trial court improperly granted summary judgment
because they raised the issues of Ernest‟s testamentary capacity and Martha Jo‟s undue
influence. Rightmire, as part of his response, asserts that Corey and Warren have failed to
preserve these issues because they have not complained on appeal of the trial court‟s evidentiary
rulings.   These rulings resulted in the exclusion from evidence of Corey and Warren‟s only
evidence to support lack of testamentary capacity and undue influence.
       Testamentary Capacity
       The will in question is a self-proving will. If the will had been admitted to probate, the
burden of proof regarding testamentary capacity would have shifted to the contestants, Corey and
Warren. See In re Estate of Graham, 69 S.W.3d 598, 605 (Tex. App.—Corpus Christi 2001, no
pet.). Because this will had not yet been admitted to probate, the burden of proof rested upon
Rightmire. See id. Rightmire, as the party with the burden of proof, could not move for no
evidence summary judgment on testamentary capacity. See Bostic v. Bostic, No. 12-02-00305-
CV, 2003 WL 22047902, at *2 (Tex. App.—Tyler Aug. 29, 2003, no pet.) (mem. op.) (reaching
a similar conclusion).     Therefore, the trial court‟s no evidence summary judgment on
testamentary capacity was improper. See id. However, an appellate court may, in the interest of
judicial economy, consider other grounds that the movant preserved for review, despite the fact
that the trial court did not rule on them. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626
(Tex. 1996). Here, as the prevailing party, Rightmire has correctly asserted in his brief that this
court may consider whether traditional summary judgment was proper on the issue of
testamentary capacity. See City of Angleton v. USFilter Operating Servs., Inc., 201 S.W.3d 677,
679 (Tex. 2006).
       When reviewing a ruling on a traditional motion for summary judgment, we must
examine the entire summary judgment record in the light most favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts against the motion. Yancy v.
United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex. 2007) (citing City of Keller v.
Wilson, 168 S.W.3d 802, 824-25 (Tex. 2005)). For a party to prevail on a traditional motion for
summary judgment, it must conclusively establish the absence of any genuine issue of material
fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). Evidence is
conclusive only if reasonable and fair minded jurors could not differ in their conclusions. Acad.
of Skills, 260 S.W.3d at 535 (citing Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,


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755-56 (Tex. 2007)). Once the movant has established a right to summary judgment, the
nonmovant has the burden to respond to the motion for summary judgment and present to the
trial court any matters that would preclude summary judgment. Acad. of Skills, 260 S.W.3d at
535; Pierce, 226 S.W.3d at 714.
        In their brief, Corey and Warren have failed to assert that the trial court erroneously
sustained Rightmire‟s objections to their summary judgment evidence. An appellant‟s brief must
state concisely all issues presented for review. TEX. R. APP. P. 38.1(f). The statement of an issue
will be treated as covering every subsidiary question that is fairly included. Id. An issue
presented in an appellant‟s brief is sufficient if it directs the attention of the appellate court to the
error about which the complaint is made. Acad. of Skills, 260 S.W.3d at 536; Bankhead v.
Maddox, 135 S.W.3d 162, 163 (Tex.App.—Tyler 2004, no pet.). In its review of a civil matter,
an appellate court has no discretion to consider an issue not raised in an appellant‟s brief, even
though the court may perceive that the ends of justice support such a course. In re M.T., 290
S.W.3d 908, 910 (Tex. App.—Tyler 2009, no pet.); Acad. of Skills, 260 S.W.3d at 536;
Bankhead, 135 S.W.3d at 163-64.
        Corey and Warren bore the responsibility to frame their issues in this appeal, and we
cannot consider an issue not raised in their brief. See In re M.T., 290 S.W.3d at 910; Acad. of
Skills, 260 S.W.3d at 536; Bankhead, 135 S.W.3d at 163-64. We note that an appellate court
may sometimes be able to consider issues not raised on appeal where those issues involve
fundamental error. See In re B.L.D., 113 S.W.3d 340, 350-51 (Tex. 2003) (discussing the limited
circumstances in which the fundamental error doctrine has been utilized by the supreme court).
However, we do not believe the trial court‟s evidentiary rulings rise to the level of fundamental
error. See Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993) (“Fundamental
error exists „in those rare instances in which the record shows the court lacked jurisdiction or that
the public interest is directly and adversely affected as that interest is declared in the statutes or
the Constitution of Texas.‟”).
        Because of the trial court‟s rulings, the only evidence properly before the trial court
supported, rather than controverted, testamentary capacity. In light of this evidence, we cannot
conclude that a genuine issue of material fact existed on the issue of Ernest‟s testamentary
capacity.   Instead, the remaining summary judgment evidence conclusively established the
absence of any genuine issue of material fact and that Rightmire was entitled to judgment as a
matter of law. See TEX. R. CIV. P. 166a(c).


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         Undue Influence
         Corey and Warren bore the burden of proof regarding their undue influence claim. See
Bostic, 2003 WL 22047902, at *3. Therefore, Rightmire could file a no evidence summary
judgment motion on this issue. See TEX. R. CIV. P. 166a(i); see also Bostic, 2003 WL 22047902,
at *3-4. As such, it was Corey and Warren‟s burden to produce evidence supporting undue
influence in response to Rightmire‟s motion on this issue. See Bostic, 2003 WL 22047902, at *3-
4.
         Again, Corey and Warren have failed to assert that the trial court erroneously sustained
Rightmire‟s objections to their summary judgment evidence.          A no evidence motion for
summary judgment must be granted if (1) the moving party asserts that there is no evidence of
one or more specified elements of a claim or defense on which the adverse party would have the
burden of proof at trial; and (2) the respondent produces no summary judgment evidence raising
a genuine issue of material fact on those elements. Sudan, 199 S.W.3d at 292 (citing TEX. R.
CIV. P. 166a(i)). Because of the trial court‟s rulings, no evidence was properly before the trial
court that would raise a genuine issue of material fact in relation to the issue of Martha Jo‟s
undue influence. As such, this issue was ripe for no evidence summary judgment. See TEX. R.
CIV. P. 166a(i); Sudan, 199 S.W.3d at 292.

                                                   CONCLUSION
         The trial court improperly granted a no evidence summary judgment on the issue of
testamentary capacity. Therefore, we sustain Corey and Warren‟s first issue. The trial court
properly granted Rightmire‟s motion for no evidence summary judgment on undue influence.
Therefore, we overrule Corey and Warren‟s second issue.           Because traditional summary
judgment was proper, we modify the trial court‟s judgment so that, as to the issue of testamentary
capacity, the judgment is a traditional summary judgment, not a no evidence summary judgment.
See TEX. R. APP. P. 43.2. As modified, we affirm the trial court‟s judgment.
                                                                   JAMES T. WORTHEN
                                                                      Chief Justice



Opinion delivered June 30, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

                                                    (PUBLISH)



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