                                   In The
                             Court of Appeals
               Sixth Appellate District of Texas at Texarkana


                                      No. 06-19-00039-CV




              ESTATE OF HENRY EZEKIEL “ZEKE” GROGAN, DECEASED




                           On Appeal from the County Court at Law
                                    Harrison County, Texas
                              Trial Court No. 2018-17,778-CCL




                         Before Morriss, C.J., Burgess and Carter,* JJ.
                               Opinion by Chief Justice Morriss

_________________________________________
*Jack Carter, Justice, Retired, Sitting by Assignment
                                                 OPINION

         Although—when eighty-three-year-old Henry Ezekiel “Zeke” Grogan lost his battle with

cancer and died in 2018—Zeke was single and had no lineal descendants, he was “lifetime

companion” to Linda Carpenter, with whom he had lived for decades after the two had formed a

long-time, close working relationship in his dental practice. Probated was Zeke’s 2010 lawyer-

drawn will that left essentially all of Zeke’s assets to Linda, and none to Zeke’s siblings, George

and William, or to their descendants. Zeke’s surviving brothers separately contested the 2010 will.

This appeal involves William’s contest 1 and comes from a summary judgment upholding the

probate in Linda’s favor. 2

         In granting Linda’s motion for summary judgment, the trial court found that there was no

evidence that the 2010 will was the result of undue influence exerted by Linda on Zeke, that there

was no evidence of a will or testamentary instrument executed by Zeke after the 2010 will, and

that the 2010 will was executed without undue influence and was not subsequently revoked.

         William argues on appeal that Linda’s summary judgment was improper because he had

raised fact issues regarding whether Linda had unduly influenced Zeke to execute the 2010 will

and whether it had been later revoked and because his request for a continuance to conduct further

discovery was improperly denied. We affirm the trial court’s judgment, because (1) the summary-

judgment evidence raised no fact issue regarding undue influence, (2) the summary-judgment


1
 William’s contest was initiated by and through his daughter and agent, Stephanie Grogan Payne. George’s separate
contest is not part of this appeal.
2
 In response to William’s contest, Linda filed a traditional and no-evidence motion for summary judgment asserting
that there was no evidence either that the 2010 will was executed as a result of undue influence or that there was any
subsequent revocation. The trial court agreed, granted Linda’s motion for summary judgment, admitted the 2010 will
to probate, and issued letters testamentary to Linda.
                                                          2
evidence raised no fact issue regarding revocation, and (3) denying William’s requested

continuance to conduct further discovery was within the trial court’s discretion.

(1)    The Summary-Judgment Evidence Raised No Fact Issue Regarding Undue Influence

       A summary judgment in a will contest is reviewed as in any other case, using a de novo

standard of review. In re Estate of Fisher, No. 06-14-00029-CV, 2014 WL 5465869, at *1 (Tex.

App.—Texarkana Oct. 29, 2014, no pet.) (mem. op.) (citing Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003)). In such a review, all evidence favorable to the

nonmovant is assumed true, along with every reasonable inference to be drawn from the evidence,

with any doubts resolved against the summary judgment. City of Wolfe City v. Am. Safety Cas.

Ins. Co., 557 S.W.3d 699, 702 (Tex. App.—Texarkana 2018, pet. denied) (citing Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). When both traditional and no-

evidence summary judgments are reviewed, we look first at the no-evidence motion. Id. (quoting

First United Pentecostal Church of Beaumont, d/b/a The Anchor of Beaumont v. Parker, 514

S.W.3d 214, 219 (Tex. 2017) (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.

2004))).

       If a motion for summary judgment claims that there is no evidence supporting any element

of a claim or defense on which the nonmovant bears the burden of proof at trial, we look to see if

the nonmoving party has presented evidence raising a genuine issue of material fact on the element

or elements in question. TEX. R. CIV. P. 166a(i); Fisher, 2014 WL 5465869, at *1 (citing Mack

Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Sudan v. Sudan, 199 S.W.3d 291, 292

(Tex. 2006). If our review of the no-evidence motion demonstrates the lack of necessary evidence


                                                 3
supporting the claim, we need not address the traditional motion for summary judgment. City of

Wolfe City, 557 S.W.3d at 702 (quoting Parker, 514 S.W.3d at 219).

       Since a no-evidence summary judgment is effectively a pretrial directed verdict, we use

the directed-verdict standard of review in reviewing such a summary judgment. Id. at 702–03

(citing Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002)). Our task boils down

to determining whether the claimant “produced any evidence of probative force to raise a fact issue

on the material questions presented.” Id. (quoting Woodruff v. Wright, 51 S.W.3d 727, 734 (Tex.

App.—Texarkana 2001, pet. denied)).

       A no-evidence summary judgment motion fails if there is “more than a scintilla of

probative evidence on each element” of the claim. Id. at 703 (citing King Ranch, Inc. v. Chapman,

118 S.W.3d 742, 751 (Tex. 2003); Rhine v. Priority One Ins. Co., 411 S.W.3d 651, 657 (Tex.

App.—Texarkana 2013, no pet.)). “More than a scintilla of evidence exists when the evidence

‘rises to a level that would enable reasonable and fair-minded people to differ in their

conclusions.’” Fisher, 2014 WL 5465869, at *1 (quoting King Ranch, 118 S.W.3d at 751). The

evidence, however, fails to reach that threshold if “it is ‘so weak as to do no more than create a

mere surmise or suspicion’ of fact.” Id. (quoting King Ranch, 118 S.W.3d at 751).

       We first address William’s argument that a fact issue on his claim of undue influence made

a summary judgment unavailable. To show undue influence, a will “contestant must prove ‘(1) the

existence and exertion of an influence (2) that subverted or overpowered the mind of the testator

at the time of execution of the instrument (3) so that the testator executed an instrument he or she

would not otherwise have executed but for such influence.’” Id. at *2 (quoting In re Estate of


                                                 4
Steed, 152 S.W.3d 797, 807 (Tex. App.—Texarkana 2004, pet. denied)). Here, William bore the

burden of proving undue influence at trial and was “required to ‘introduce some tangible and

satisfactory proof of the existence of each of the above[-]stated elements of undue influence’ to

survive [the] no-evidence challenge.” Id. (citing Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.

1963)).

          The summary judgment evidence showed that Zeke’s relationship with his brothers was

strained. George testified that they practiced dentistry together until a fight in the office caused a

breakup in the brothers’ professional and personal relationships in 1979. George admitted that he

strangled William in the office and would have killed him had Zeke not intervened. George

testified that he never spoke to William again after the fight and had no connection with Zeke for

a long time. George never spoke to Zeke’s ex-wife and was not invited to their wedding. William

testified that he did not have close contact with either brother and that both George and Zeke had

told him to stay out of their business. William did not even know where Zeke lived.

          In contrast, the evidence showed that Zeke and Linda had a close relationship for thirty

years. Zeke and Linda met while attending church in 1987, formally began dating in February

1998, and lived together as “lifetime companions.” Linda testified that she and Zeke loved each

other and that Zeke loved her children from a prior marriage, including her son, Ryan Carpenter.

In 1995, without Linda’s knowledge, Zeke executed a holographic will leaving William and

George $1.00 each and everything else to Linda. The 1995 will provided that Ryan would be the

sole contingent beneficiary in the event Linda predeceased Zeke. Linda testified that she did not




                                                  5
read the 1995 will, but that Zeke handed it to her for safekeeping and informed her that she was

the beneficiary and her children were contingent beneficiaries.

       In 2010, Zeke told Linda that he was going to obtain a “lawyer-drawn-up” will. Before the

appointment with his lawyer, James Powers Branch, Zeke asked Linda to copy notes he had written

for the attorney, word for word, so it would be in better handwriting. Linda testified that she

copied Zeke’s notes as asked. The notes, produced by Branch from his files, stated, among other

things, that Linda should be the “Sole Beneficiary,” that Ryan would be the contingent beneficiary,

and that Zeke “want[ed] to disinherit [his] brothers, George Gram & William W. Grogan; [his]

niece Stephanie Grogan Payne & her daughters Phoebe & Oliva Payne as well as any cousins or

other relatives.”

       Branch’s affidavit explained the circumstances surrounding the drafting and execution of

the 2010 will. Branch swore that he met alone with Zeke on December 8, 2010. According to

Branch, Zeke brought a copy of the 1995 will and said he wanted to leave everything to Linda, to

make Ryan the contingent beneficiary, and to disinherit his brothers. Branch’s December 8, 2010,

“MEMO TO FILE” on Zeke said, “He wants to leave everything to Linda L. Carpenter if she

survives him. If she does not survive him, it goes to Ryan P. Carpenter.” Zeke also requested that

Branch prepare documents giving Linda statutory power of attorney in the event of disability or

incapacity and medical power of attorney. Branch stated, “I found Zeke to be decisive and strong-

willed. He knew exactly what he wanted.” As a result, Branch prepared the documents in

accordance with Zeke’s instructions.




                                                6
            Branch said that Zeke returned to the office alone to execute the documents on

December 16, 2010. During the signing, Branch stated that the only people in the room were

Branch; his employee, Valerie Wilds; and Margaret H. Harbstreit, “a bookkeeper for Ron Dunbar.”

Branch stated that the 2010 will was executed with the formalities of Texas law and that Zeke was

of sound mind, had testamentary capacity, and “understood who his heirs at law were and who he

wanted to be his beneficiaries.” 3 In accordance with Zeke’s wishes, the 2010 will named Linda

independent executrix, left Zeke’s estate to Linda, made Ryan contingent beneficiary, and stated,

“I have intentionally omitted to provide for all of my heirs at law or other relatives who are not

specifically mentioned in this will.” The 2010 will was signed by Zeke and two witnesses and was

self-proving. Linda testified that the 2010 will was placed along with the 1995 will in a chest of

drawers in the master bedroom and that Zeke understood the 2010 will.

            Linda testified that Zeke was in good health in 2010. However, after Zeke’s death in 2018,

William and George raised the issue of undue influence. In addition to her personal relationship

with Zeke, Linda had been employed by Zeke’s dental practice and helped him with his cattle

business. Even after Zeke’s dental practice closed in 2009, Linda sent bills for accounts receivable,

paid bills, wrote checks for Zeke to sign, ordered supplies, and delivered monthly statements for

Zeke’s business endeavors to his accountant. At home, Linda paid for the landline telephone,

answered Zeke’s phone calls since he did not have a phone of his own, delivered his messages,

and assisted Zeke with other matters. According to Linda, Zeke employed someone to write his

personal checks, but she assumed that responsibility when that person quit her employment.



3
    It is undisputed that Zeke had testamentary capacity.
                                                            7
           William questioned Linda’s influence over Zeke as a result of her relationship and because

Zeke either loaned or gave approximately $300,000.00 to Ryan during his lifetime. Linda

explained that she and Ryan never asked Zeke to loan or give Ryan money, but that Zeke had

offered to save Ryan from bankruptcy after Linda apprised him of Ryan’s financial situation.

Linda was aware of the money Zeke loaned Ryan because she handled the check registers on

Zeke’s personal bank account. According to Linda, Zeke had loaned money to Ryan even when

he was borrowing money from George to cover his losses from the cattle business. Linda testified

that she told Zeke he could stop loaning money to Ryan, but Zeke said, “No, absolutely not. This

is what we’re going to do, we’re going to stay the course . . . . If I have to sell the Jefferson place,

I will.” 4

           During his deposition, William testified that he did not know of Zeke’s medical condition

before his death, that he met Linda only once, and that he did not know anything about Zeke and

Linda’s relationship. William testified that he later found out that Zeke and Linda had lived

together for a long time. William did not remember if he knew about any will before Zeke’s death

and admitted that he knew nothing of the circumstances of the 2010 will’s execution. When asked

if anyone unduly influenced Zeke, William answered, “Could be . . . . [b]ecause . . . we weren’t

that close except in rare instances.” When asked what he meant by “[c]ould be,” William

answered, “[Zeke] was around a lot of people.”

           Stephanie also testified that she knew nothing of the circumstances of the 2010 will and

was unaware that Zeke had a will until after his death. Stephanie did not know about Zeke’s



4
    Zeke owned several properties.
                                                   8
private life or whether he had children, but testified that he was mentally competent until the time

of his death. Stephanie could not answer whether Zeke and Linda loved each other, did not know

of their living conditions, and testified, “[A]s far as I know, they were roommates . . . . I didn’t

know anything about their relationship other than the fact that she worked at the dental office as

an assistant.”

       George also testified that he did not know if Zeke loved Linda and that he was not aware

of Zeke’s execution of the 2010 will until after its execution. The evidence established that Zeke

and George did not communicate often until after George’s wife passed away. George testified

that he asked Zeke “if he had a lawyer prepare a will . . . when [George] was trying to get [his will]

together,” and Zeke said that “it was . . . just a quicky thing that was [of] no value [and] wouldn’t

help [George] at all.” George testified that Zeke, who “was mentally competent every time [he]

saw him,” “volunteered that Linda was supposed to get . . . five acres and the Curtis Black house,

and that was her reward for 25 years of service as an employee.”

       When asked if he believed anyone had unduly influenced Zeke in executing the 2010 will,

George testified, “The only thing he told me was that he was in a lot of pain, and Linda was pushing

him and pushing him, and pushing him to feed the cows. He was dedicated to those cows, and she

was pushing him, pushing him because he might come out dead.” George did not remember what

year Zeke made that statement, did not know what kind of pressure Linda was putting on Zeke to

have a will “so she could feed the cows if [Zeke] came out dead,” but later claimed that Zeke said

at an unidentified time that Linda was trying to poison him and that their situation was unhappy.

George also said that he had to call Linda’s landline to contact Zeke and that Zeke had told a


                                                  9
neighbor, Tommy Perry, that Linda would get five acres and a house after his death and that he

had designated other plots of land to Perry.

       Perry testified that he was not involved in Zeke’s life in 2010, that he started working for

Zeke in 2013, and that he stopped working for him in September 2017 after Zeke accused him of

stealing his air compressor. Perry, who was arrested twice before for theft, testified that, because

of Linda, he was never invited to Zeke’s home. According to Perry, Zeke said he made a will in

2010 when he had no one in his life except for Linda and Ryan. When asked if he had personal

knowledge of any undue influence, Perry said, “I do know that [Zeke] told me that [Linda] was

pressuring him to make the will” because he had a few surgeries before 2010 and he wanted to

make sure his cattle were fed. Perry claimed Zeke called Linda a “witch” and said, “That lady will

get her talons in you, boy, and won’t let up.”

       According to Perry, Zeke “did rewrite a new will” in 2016, but Perry never saw it. Yet,

Perry claimed he was supposed to receive several plots of land under the new will. When asked if

he was interested in Zeke’s estate, Perry said, “I’m saying that the man told me that he was leaving

Linda the house and five acres . . . . And he told me the rest of the property would be mine.”

Although he never saw a new will, Perry said, “[Zeke] told me he made a will . . . and that . . .

Linda knew about the new will.”

       According to Perry, Zeke said Linda “had found some paperwork regarding . . . the will

and that it had been changed” in June or November 2016. Perry claimed that the new will was in

the trailer house office Linda cleaned on the day after Zeke’s death. Linda swore that she had

never heard of any will executed after the 2010 will. She testified that she enlisted help from two


                                                 10
of Zeke’s friends to move a filing cabinet on the day after Zeke’s death based on his instructions

to take the deeds to the property.

         Perry was not the only person to claim an interest in Zeke’s estate after his death. After

her deposition, Stephanie filed an unsworn declaration stating, “Uncle Zeke pointed to the ground

and said that when he closed his eyes for the last time this property would be mine.” Cruz Perez,

who worked for Zeke fixing ranch equipment, testified that, in 2015, Zeke told him he “wanted to

give [him] 5 acres so [he] could build a home for [his] family.” Perez also said Zeke told him he

would get his dental office building one day. According to Perez, “Weeks before he died[, Zeke]

brought up the 5 acres again. Zeke told me that I would get the land after he passed away. I

assume he did this by a will because he told me he had a will.”

         In response to those claims, Harold Cox, Zeke’s accountant who had a business relationship

with Zeke for forty years, filed an affidavit stating,

         I would describe Zeke as headstrong; Zeke pretty much ran his own show . . . . I
         talked with Zeke in March 2018. Zeke told me that he was dying. I asked whether
         he had his affairs in order. He told me that he had a will and that he was leaving
         everything to Linda Carpenter.

Cox updated that statement to say, “He told me that he had a will and that he guessed he was

leaving everything to Linda.” Zeke’s neighbor, Stan Hollie Jones, filed an unsworn declaration

stating that “a month before Zeke died he told [Stan] that he planned on leaving Linda the house

on Curtis Black Road and three to five acres. Zeke told [Stan] that he felt like he owed Linda

that.”




                                                  11
           Although William, in his deposition, claimed no knowledge of Zeke’s relationship with

Linda, he asserted that the 2010 will was the result of Linda’s undue influence. His interrogatory

responses alleged,

           Zeke was increasingly dependent on Linda Carpenter, including but not limited to
           in the management of his financial estate. Further, as his dependency on Linda
           Carpenter increased, he became more isolated from his family and other friends.
           Ms. Carpenter took advantage of that dependency to influence Zeke to make
           decisions he otherwise would not have made.

William listed Zeke’s ongoing knee pain, mobility issues, “weak physical state, as well as his

isolation from individuals other than Linda Carpenter and her son,” as conditions that made Zeke

susceptible to undue influence. George’s interrogatory responses said, “[I]t was my understanding

that Zeke wished for the family land to stay in the family,” claimed the 2010 will reflected Linda’s

intent, claimed Zeke did not like Ryan, and stated, “Zeke was unduly pressured by Linda Carpenter

into lending and/or giving Ryan Carpenter large sums of money that he did not want to lend/give

. . . Zeke would not have wanted to make Ryan Carpenter the alternative beneficiary of his entire

estate.”

           William argues that Linda unduly influenced Zeke, because she was in a confidential or

fiduciary relationship with him. “If a will opponent’s challenges to a will are based on a

confidential relationship between the testator and the will proponent, the opponent has the burden

of establishing a confidential relationship.” In re Estate of Coleman, 360 S.W.3d 606, 611 (Tex.

App.—El Paso 2011, no pet.).

           Fiduciary relationships take two forms: “(1) a formal fiduciary relationship arising as a

matter of law, such as between partners or an attorney and a client, and (2) an informal or


                                                  12
confidential fiduciary relationship arising from a moral, social, domestic, or merely personal

relationship where one person trusts in and relies on another.” Gray, 428 S.W.3d at 316 (citing

Crim Truck & Tractor v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992),

superseded by TEX. REV. CIV. STAT. art. 4413(36), repealed by Act of May 22, 2001, 77th Leg.,

R.S., ch. 142, § 5, 2001 Tex. Gen. Laws 5020 (eff. June 1, 2003), as noted in Subaru of Am., Inc.

v. David McDavid Nissan, Inc., 84 S.W.3d 212, 225–26 (Tex. 2002); Smith v. Deneve, 285 S.W.3d

904, 911 (Tex. App.—Dallas 2009, no pet.)).

        William argues that he met his burden of showing a fiduciary or confidential relationship

by showing that Linda was romantically involved with Zeke, but evidence of a romantic

relationship, even a long-standing one, does not constitute evidence of a fiduciary relationship.

Smith v. Deneve, 285 S.W.3d 904, 911 (Tex. App.—Dallas 2009, no pet.) (citing Hubbard v.

Shankle, 138 S.W.3d 474, 479, 483 (Tex. App.—Fort Worth 2004, pet. denied)). This is because

“a presumption of fraud or undue influence does not usually apply where confidence is reposed by

one in another. Such presumption of fraud properly applies to fiduciary relationships, such as

guardian and ward, trustees, etc.” 5 Price v. Taliaferro, 254 S.W.2d 157, 163 (Tex. Civ. App.—

Fort Worth 1952, writ ref’d n.r.e.).

        “A confidential fiduciary relationship may exist where influence has been acquired and

abused or where confidence has been reposed and betrayed.” Gray, 428 S.W.3d at 316 (citing

Crim Truck & Tractor, 823 S.W.2d at 594). “Whether a confidential relationship exists is

‘determined from the actualities of the relationship between the persons involved.’” Id. (quoting


5
While Zeke had executed a statutory power of attorney for Linda, Linda never exercised that power because Zeke
was never incapacitated before his death.
                                                     13
Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962)). “‘The problem is one of equity[,]’ and the

circumstances giving rise to the confidential relationship ‘are not subject to hard and fast lines.’”

Id. (quoting Tex. Bank & Trust Co. v. Moore, 595 S.W.2d 502, 508 (Tex. 1980)). “Factors include

whether the plaintiff relied on the defendant for support, the plaintiff’s advanced age and poor

health, and evidence of the plaintiff’s trust.” Id. (citing Trostle v. Trostle, 77 S.W.3d 908, 914–15

(Tex. App.—Amarillo 2002, no pet.)).

       The evidence showed that Zeke relied on Linda, loved her, and trusted her in his advanced

age. While the evidence showed that Linda handled Zeke’s personal and professional financial

transactions, it also showed that Zeke was in good mental health until his death. Given these

conflicting factors, William argues that, after he raised a genuine issue of material fact on the

existence of a fiduciary or confidential relationship, the burden shifted to Linda to produce

evidence showing an absence of undue influence. This argument is supported in part by several

of our sister courts who have found that “a will contestant may raise a presumption of undue

influence by introducing evidence of a fiduciary relationship between the testator and the will

proponent.” Estate of Danford, 550 S.W.3d 275, 281–82 (Tex. App.—Houston [14th Dist.] 2018,

no pet.); see In re Estate of Pilkilton, No. 05-11-00246-CV, 2013 WL 485773, at *11 (Tex. App.—

Dallas Feb. 6, 2013, no pet.) (mem. op.); Quiroga v. Mannelli, No. 01-09-00315-CV, 2011 WL

944399, at *5 (Tex. App.—Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op.); Estate of

Coleman, 360 S.W.3d at 611; Buckner v. Buckner, 815 S.W.2d 877, 879–81 (Tex. App.—Tyler

1991, no writ); Price v. Taliaferro, 254 S.W.2d 157, 163 (Tex. Civ. App.—Fort Worth 1952, writ

ref’d n.r.e.); Rounds v. Coleman, 189 S.W. 1086, 1089 (Tex. Civ. App.—Amarillo 1916, no writ));


                                                 14
see also Fielding v. Tullos, No. 09-17-00203-CV, 2018 WL 4138971, at *7 (Tex. App.—

Beaumont Aug. 30, 2018, no pet.) (mem. op.). This Court has not expressly applied this

presumption in the context of a will contest, though we have recognized that “Texas appellate

courts have held that when a fiduciary transacts with the principle [sic] or accepts a gift or bequest

from the principal, a burden is placed on the fiduciary to demonstrate the fairness of the

transaction.” Gray, 428 S.W.3d at 317. Nevertheless, the presumption is rebuttable. Fielding,

2018 WL 4138971, at *7. “Once evidence contradicting the presumption has been offered, the

presumption is extinguished,” and “[t]he case then proceeds as if no presumption ever existed.”

Id.

       In other words, the rebuttable presumption shifts only the burden of production and “does

not shift the ultimate burden of proof.” Id.; see In re Willenbrock’s Estate, 603 S.W.2d 348, 351

(Tex. Civ. App.—Eastland 1980, writ ref’d n.r.e.) (Because “a beneficiary under a will

[commonly] occupies a close . . . relationship with the testator or testatrix . . . , a confidential or

fiduciary relationship frequently exists, but this is no proof of undue influence.” Therefore, “the

fact that [someone] occupie[s] a fiduciary [or confidential] relationship with the testat[or], standing

alone, [i]s insufficient to raise an issue that the will was executed as the result of undue

influence.”). Contrary to William’s argument, even assuming he met his burden to show sufficient

evidence to raise the presumption, the undisputed evidence from Branch and others showing that




                                                  15
Zeke was strong-willed and of sound mind when the 2010 will was executed extinguished any

presumption resulting from Zeke and Linda’s relationship. 6

        As a result, we now turn to the evidence relevant in determining whether William met his

burden to present more than a scintilla of evidence on the issue of undue influence. In analyzing

whether a will should be set aside for undue influence, courts consider

        the relationship existing between the testator and the parties, the opportunities for
        an exertion or deception, the words or acts of the parties, the mental or physical
        incapacity to resist or susceptibility to influence, the circumstances surrounding the
        drafting and execution of the will, the existence of a fraudulent motive, and any
        domination or habitual control of the testator by another.

Fisher, 2014 WL 5465869, at *2 (citing In re Estate of Reno, No. 06-09-00040-CV, 2009 WL

4877542, at *5 (Tex. App.—Texarkana Dec.18, 2009, no pet.) (mem.op.) (citing Rothermel, 369

S.W.2d at 923)).

        “Undue influence implies the existence of a testamentary capacity subjected to and

controlled by a dominant influence or power.” Id. at *6 (quoting Rothermel, 369 S.W.2d at 922).

The Texas Supreme Court wrote in Rothermel v. Duncan,

        The exertion of influence that was or became undue is usually a subtle thing and by
        its very nature usually involves an extended course of dealings and circumstances.
        Thus, it is settled that the elements establishing undue influence may be proved by
        what is known as circumstantial, as well as by direct, evidence. In the absence of
        direct evidence[,] all of the circumstances shown or established by the evidence
        should be considered; and even though none of the circumstances standing alone
        would be sufficient to show the elements of undue influence, if when considered
        together they produce a reasonable belief that an influence was exerted that
        subverted or overpowered the mind of the testator and resulted in the execution of
        the testament in controversy, the evidence is sufficient to sustain such conclusion.
        However, the circumstances relied on as establishing the elements of undue

6
 See In re Estate of Ward, No. 04-04-00417-CV, 2005 WL 418551, at *2 (Tex. App.—San Antonio Feb. 23, 2005,
pet. denied) (discussing facts showing will proponent was entitled to traditional motion for summary judgment based
on conclusive proof of absence of subverting or overpowering influence.)
                                                        16
       influence must be of a reasonably satisfactory and convincing character, and they
       must not be equally consistent with the absence of the exercise of such influence.
       This is so because a solemn testament executed under the formalities required by
       law by one mentally capable of executing it should not be set aside on a bare
       suspicion of wrongdoing.

Rothermel v. Duncan, 369 S.W.2d 917, 922–23 (Tex. 1963) (citations omitted).

       “The exertion of undue influence cannot be inferred by opportunity alone.” See Fisher,

2014 WL 5465869, at *7 (citing In re Estate of Ross, No. 10-10-00189-CV, 2011 WL 6004336,

at *6 (Tex. App.—Waco Nov. 30, 2011, no pet.) (mem. op.) (citing Cotten v. Cotten, 169 S.W.3d

824, 827 (Tex. App.—Dallas 2005, pet. denied))). Thus, evidence that Linda cared for Zeke, lived

with him, took his messages, and handled financial matters at Zeke’s direction “is no evidence of

the existence and exertion of undue influence because such contacts are ‘equally consistent with

the theory of innocence as . . . with the theory of wrongdoing.’” See id. (quoting Ross, 2011 WL

6004336, at *6); see Birmingham-Queen v. Whitmire, No. 04-05-00646-CV, 2006 WL 1539587,

at *5 (Tex. App.—San Antonio June 7, 2006, no pet.) (mem. op.) (evidence that Bessie was the

decedent’s caretaker, was always in close contact with him, refused to leave him alone with others,

and attempted to isolate him from his family and friends “only illustrate[s] that Bessie had

opportunity to unduly influence [the decedent]; [it is] not proof that she actually exerted influence

over him.”). Likewise, evidence showing that Zeke was old and suffered the common maladies of

age demonstrates only opportunity to exert influence, not the actual influence of his mind by Linda

at the time he executed the 2010 will. See Rothermel, 369 S.W.2d 917; Fisher, 2014 WL 5465869,

at *7 (citing Davis, 9 S.W.3d at 293; Guthrie v. Suiter, 934 S.W.2d 820, 832 (Tex. App.—Houston




                                                 17
[1st Dist.] 1996, no writ)). The more important inquiry is whether Linda took advantage of

opportunities to unduly influence Zeke. See Rothermel, 369 S.W.2d at 923.

         Here, there was evidence showing that Linda had some influence over Zeke in light of

Zeke’s loans or gifts to Ryan, conflicting testimony about statements Zeke made after the 2010

will regarding who he wished to leave his estate to, and testimony that Linda had her “talons” in

Zeke. “However, ‘[i]t cannot be said that every influence exerted by one person on the will of

another is undue, for the influence is not undue unless the free agency of the testator was destroyed

and a testament produced that expresses the will [of] the one exerting the influence.’” Fisher,

2014 WL 5465869, at *9 (first alteration in original) (quoting Rothermel, 369 S.W.2d at 922).

While there arguably was evidence showing that Linda pushed Zeke to make a will, no evidence

suggested that the 2010 will contained a disposition that was against Zeke’s wishes when he

executed it. There was no evidence that Linda was pushing Zeke to name her independent

executrix or list her as the 2010 will’s sole beneficiary or that Linda tricked Zeke in any way in

the making of the 2010 will. See id. at *8 (citing Steed, 152 S.W.3d at 809 (discussing what

constitutes evidence of fraudulent motive to support claim of undue influence)). 7

         “Undue influence ‘must be proved to have been exercised in relation to the . . . will itself

and not merely in other transactions. Mere persuasions, entreaties, or mere suspicion of undue

influence will not invalidate . . . a will on such grounds.’” Id. (quoting Griffin v. Griffin, 271

S.W.2d 714, 719 (Tex. Civ. App.—Texarkana 1954, no writ); see In re Estate of Graham, 69


7
 “In fact, ‘one may request or even importune and entreat another to execute a favorable dispositive instrument; but
unless the importunities and entreaties are shown to be so excessive as to subvert the will of the maker, they will not
taint the validity of the instrument with undue influence.’” Fisher, 2014 WL 5465869, at *8 (quoting Rothermel, 369
S.W.2d at 922).
                                                         18
S.W.3d 598, 610 (Tex. App.—Corpus Christi 2001, no pet.)). “Thus, evidence that another

influenced a testator, by ‘dominat[ing] him, including handling all [of the testator’s] financial

affairs, being the “boss,” and running the whole show’ is legally insufficient to invalidate a will in

the absence of evidence that undue influence ‘was specifically exerted on the testamentary act.’”

Id. (quoting Steed, 152 S.W.3d at 809 (alteration in original) (citing Griffin, 271 S.W.2d 714)).

       In order to defeat Linda’s no-evidence summary judgment motion, William was required

to introduce evidence showing that Linda’s “undue influence subverted or overpowered the mind

of the testator at the time of execution of the instrument.” See id. (citing Steed, 152 S.W.3d at 807;

Rothermel, 369 S.W.2d at 922). William, George, and the witnesses supporting their position had

no knowledge regarding the specific circumstances surrounding the execution of Zeke’s will,

except for Linda’s undisputed statement that she copied Zeke’s notes to Branch, word for word,

before Zeke’s meeting with Branch. Importantly, it was uncontested that the 2010 will was

prepared by Branch after he met with Zeke alone, determined him to be “strong-willed” and of

sound mind, and heard Zeke’s wishes directly from Zeke. Branch also stated that Zeke returned

alone to execute the 2010 will in accordance with the formalities of Texas law in front of neutral

witnesses. Simply put, William introduced no evidence that Zeke’s mind was subverted or

overpowered at the time Zeke executed the 2010 will.

       Also, William was required to present evidence that Zeke “executed a will that he would

not have executed but for the influence exerted on him.” See id. at *9 (citing Steed, 152 S.W.3d

at 807). “The establishment of this element of undue influence ‘is generally predicated on an

assessment of whether the testament provides for an unnatural disposition of the property.’” Id.


                                                 19
(citing Davis, 9 S.W.3d at 294). The 1995 will, penned entirely in Zeke’s handwriting, informed

the question of Zeke’s intent and showed that he wished to leave his estate to Linda, at least at that

time, while making Ryan the contingent beneficiary. There was no evidence of undue influence

with respect to the 1995 will, and nothing contradicted Linda’s testimony that she had not seen the

1995 will when the 2010 will was executed. While Zeke entirely disinherited his brothers and

other family members in the 2010 will instead of leaving them $1.00 as he had done in the 1995

will, the 2010 will was in large part a reflection of the 1995 will. Moreover, the evidence showed

that Zeke had no relationship with William in 2010, that his relationship with George, if any, was

strained, and that Linda was Zeke’s lifelong companion. Even Perry testified that the 2010 will

was executed at a time when Zeke had only Linda and Ryan in his life. In short, there was no

evidence showing that the 2010 will was the result of undue influence.

       At best, William’s arguments and evidence produce merely a conjured suspicion of undue

influence. A “will ‘executed under the formalities required by law by one mentally capable of

executing it should not be set aside on a bare suspicion of wrongdoing.’” Id. at *9 (quoting Mackie

v. McKenzie, 900 S.W.2d 445, 451 (Tex. App.—Texarkana 1995, writ denied)). We find that the

trial court properly found for Linda on the issue of undue influence in her no-evidence summary

judgment motion. As a result, we overrule this contention by William.

(2)    The Summary-Judgment Evidence Raised No Fact Issue Regarding Revocation

       William also argues that Linda’s summary judgment was improper, because the trial court

erred in finding no evidence that the 2010 will was revoked. The Texas Estates Code provides,

       A written will, or a clause or devise in a written will, may not be revoked, except
       by a subsequent will, codicil, or declaration in writing that is executed with like

                                                 20
       formalities, or by the testator destroying or canceling the same, or causing it to be
       destroyed or canceled in the testator’s presence.

TEX. EST. CODE ANN. § 253.002. Because the 2010 will was not destroyed, William had to show

that it was revoked by a subsequent testamentary document “executed with like formalities.” See

id.

       In response to Linda’s no-evidence motion for summary judgment on his revocation claim,

William bore the burden to present evidence of the revocation of the 2010 will. See Lisby v.

Richardson’s Estate, 623 S.W.2d 448, 449–50 (Tex. App.—Texarkana 1981, no pet.); Covington

v. McDonald, 307 S.W.2d 335, 337 (Tex. App.—Texarkana 1957, no pet.). To meet his obligation,

William had to present evidence that, after the 2010 will, Zeke executed some “instrument with

the formalities and under the circumstances required by the probate code for valid wills, which

instrument expressly or impliedly revokes the former will.” See Lisby, 623 S.W.2d at 450. While

the revoking document need not be produced, “execution meeting such requirements may be

proved by any competent, relevant, and probative evidence sufficient to establish the facts.” Id. at

451 (citing May v. Brown, 190 S.W.2d 715 (1945)).

       For example, in Lisby, an attorney testified that he drafted a will revoking all prior wills,

including the probated will. Id. at 450. The attorney said the new will was signed by the decedent,

was self-proved, and was witnessed and notarized. Id. In May, there was evidence that the

decedent executed a new will in his own handwriting and asked two employees to sign the will as

witnesses. May, 190 S.W.2d at 717–18. Before executing the new will, which made his son

executor, he asked his attorneys if he could make a handwritten will. Id. The decedent’s son was

sent to the decedent’s office to retrieve the will, but the son said he could not find it. Id. This was

                                                  21
contradicted by witnesses who said that they saw the son carrying a tin box under his arm which

purportedly contained the new will. Id. May found that there was a fact issue on revocation.

       In both Lisby and May, there was evidence that disinterested witnesses had seen the

decedent execute a new will. Here, there was no such evidence. At best, the evidence showed that

Zeke had promised land to others, told others that Linda was only getting a portion of his estate,

and told Perry that he had made a new will. Coupled with evidence that the filing cabinet moved

by Linda could have contained a new will, William argues that a fact issue was established.

       However, bare testimony that a decedent made a new will is insufficient to raise a fact issue

of revocation where there was no evidence that anyone saw or witnessed the new will. See Estate

of Hamner, No. 09-13-00218-CV, 2015 WL 474274, at *1 (Tex. App.—Beaumont Feb. 5, 2015,

no pet.) (mem. op.). This is because such evidence that the decedent may have executed a new

will is mere suspicion requiring the fact-finder “to stack inference on inference” and amounts to

no evidence that a later will was executed with the formalities required by the Texas Estates Code.

Id. at *3–4; see Betts v. Betts, 395 S.W.2d 673, 675 (Tex. App.—Amarillo 1965, no pet.) (holding

that the naked statement in an affidavit that the testator told the affiant he had made a new will

giving all his property to a third party, unsupported by any other proof of revocation of the probated

will constituted no probative evidence of revocation.); Covington, 307 S.W.2d at 338 (testimony

“concerning statements by the testator that he was making a will, that he might do this or that, or

that he had revoked his old will, does not amount to a revocation of his will or the changing [of]

any of its provisions”).




                                                 22
       There is, in this record, no evidence of personal knowledge of the existence of a will

executed after the 2010 will, or of any statement from which such inference could be drawn. “The

record is completely silent as to any such will having been made under the solemnities required by

law for a will and the alleged statement of the deceased is simply a statement of a legal conclusion

as distinguished from a statement of facts from which that conclusion should be deduced.” See

Betts, 395 S.W.2d at 675. Because William’s evidence was insufficient to raise a fact-issue on his

claim of revocation, summary judgment was not improper on that basis. We overrule this

contention of error.

(3)    Denying William’s Requested Continuance to Conduct Further Discovery Was Within the
       Trial Court’s Discretion

       William also argues that the trial court erred in denying his motion for continuance. “A

trial court’s ruling on a motion for continuance is reviewed for a clear abuse of discretion.” Antolik

v. Antolik, No. 06-18-00096-CV, 2019 WL 2119646, at *6 (Tex. App.—Texarkana May 15, 2019,

pet. denied) (citing Pjetrovic v. Home Depot, 411 S.W.3d 639, 644 (Tex. App.—Texarkana 2013,

no pet.); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002)). “A trial

court ‘abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount

to a clear and prejudicial error of law.’” Id. (quoting Marchand, 83 S.W.3d at 800). “Rule 251

provides that a continuance shall not ‘be granted except for good cause supported by affidavit.’”

Hartwell v. Lone Star, PCA, 528 S.W.3d 750, 757 (Tex. App.—Texarkana 2017, pet. dism’d)

(citing TEX. R. CIV. P. 251).

       After Linda had filed her no-evidence motion for summary judgment, William moved for

a continuance to conduct further discovery. “A party may move for summary judgment on no-

                                                 23
evidence grounds only “[a]fter adequate time for discovery.” Pineda REO, LLC v. Lomix Ltd.

P’ship, No. 13-17-00277-CV, 2019 WL 5799990, at *13 (Tex. App.—Corpus Christi Nov. 7,

2019, no pet. h.) (mem. op.) (quoting TEX. R. CIV. P. 166a(i)). “A discovery period set by pretrial

order should be adequate opportunity for discovery unless there is a showing to the contrary, and

ordinarily a [no-evidence] motion . . . would be permitted after the period but not before.” TEX.

R. CIV. P. 166a(i) cmt. The rule on summary judgment “clearly contemplates that the trial court

will allow the parties a reasonable opportunity to conduct discovery before granting summary

judgment . . . allow[ing] parties to obtain the fullest knowledge of facts and issues before the

disposition of their case.” Howard v. E. Tex. Baptist Univ., 122 S.W.3d 407, 413 (Tex. App.—

Texarkana 2003, no pet.) (quoting Levinthal v. Kelsey-Seybold Clinic, P.A., 902 S.W.2d 508, 512

(Tex. App.—Houston [1st Dist.] 1994, no writ)). A continuance of a summary judgment hearing

for time to conduct further discovery can be granted when supported by affidavit that, without it,

the nonmovant “cannot for reasons stated present by affidavit facts essential to justify his

opposition” to the summary judgment. Pineda REO, LLC, 2019 WL 5799990, at *13 (quoting

TEX. R. CIV. P. 166a(g); Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)).

       “The question of whether a nonmovant has had adequate time to conduct discovery is

decided on a case-by-case basis.” Howard, 122 S.W.3d at 413 (citing McClure v. Attebury, 20

S.W.3d 722, 729 (Tex. App.—Amarillo 1999, no pet.)). In making this determination, courts may

consider various factors, including “the length of time the case has been on file, the materiality

and purpose of the discovery sought, and whether the party seeking the continuance has exercised

due diligence to obtain the discovery sought.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d


                                                24
150, 161 (Tex. 2004). The trial court may consider the entire procedural history of the case.

Howard, 122 S.W.3d at 414 (quoting GeoChem Tech Corp. v. Verseckes, 929 S.W.2d 85, 90 (Tex.

App.—Eastland 1996), rev’d on other grounds, 962 S.W.2d 541 (Tex. 1998)).

       Linda’s application to probate the 2010 will was filed March 10, 2018, prompting

William’s April 20 opposition and request for disclosure from Linda. When, as here, a suit is not

governed by a Level I or Level III discovery control plan, discovery must be conducted in

accordance with a Level II discovery plan. TEX. R. CIV. P. 190.3(a). As applicable, Rule 190.3

states that discovery ends “nine months after the earlier of the date of the first oral deposition or

the due date of the first response to written discovery.” TEX. R. CIV. P. 190.3(b)(1)(B)(ii). Thus,

discovery in this case ended on February 20, 2019, nine months after the May 20 deadline to

respond to William’s requests for disclosure.

       In her January 15, 2019, deposition, Linda identified several of Zeke’s friends and amended

her discovery responses on January 25 to list those friends and Ryan as persons with knowledge

of relevant facts. Linda’s summary judgment was filed on February 8. When the discovery period

ended on February 20, the trial court sent notice of the March 27 summary judgment hearing.

Immediately after that hearing was set on February 20, William amended his opposition to probate

the 2010 will to include a request that discovery be conducted in accordance with a Level III

discovery control plan. On March 11, William sent a notice of intent to take Ryan’s deposition by

written questions stating Ryan’s responses were due on or before April 3, a date after the scheduled

summary judgment hearing.




                                                 25
       On March 20, 2019, William filed a verified motion for continuance along with his

response to Linda’s summary judgment motion, which prayed for the trial court to grant Level III

discovery to extend the discovery period. William argued that Linda had listed Zeke’s friends and

Ryan as people with knowledge of relevant facts for the first time on January 25 and that Ryan’s

outstanding deposition on written questions was necessary and relevant on the issue of undue

influence.

       Linda moved to quash Ryan’s deposition because the Level II discovery period had ended

and William had failed to depose Ryan earlier, even though George’s August 6, 2018, discovery

responses had listed Ryan as a person with knowledge of relevant facts. William failed to seek

discovery from any of Zeke’s friends, even though there were twenty-five days between the time

Linda amended her discovery responses and the Level II discovery deadline. The trial court denied

William’s motion for continuance.

       William moved to modify the discovery control plan to Level III on the deadline for Level

II discovery. A case can be designated as Level III only by court order. Allen v. United of Omaha

Life Ins. Co., 236 S.W.3d 315, 326 (Tex. App.—Fort Worth 2007, pet. denied). Rule 190.4 states

that the “court must, on a party’s motion . . . order that discovery be conducted in accordance with

a discovery control plan tailored to the circumstances of the specific suit.” TEX. R. CIV. P. 190.4(a).

Yet, Rule 190.4 does not automatically set deadlines different from Level II deadlines, because

they remain under Level III “unless specifically changed in the discovery control plan ordered by

the court.” Border States Elec. Supply of Tex., Inc. v. Coast to Coast Elec., LLC, No. 13-13-00118-

CV, 2014 WL 3953961, at *12 (Tex. App.—Corpus Christi May 29, 2014, pet. denied) (mem. op.)


                                                  26
(quoting Allen, 236 S.W.3d at 327 (quoting TEX. R. CIV. P. 190.4(b)); see Brescia v. Slack & Davis,

L.L.P., No. 03-08-00042-CV, 2010 WL 4670322, at *3 (Tex. App.—Austin Nov. 19, 2010, pet.

denied) (mem. op.); Mulcahy v. Wal-Mart Stores, Inc., No. 02-10-00074-CV, 2010 WL 5118199,

at *2 (Tex. App.—Fort Worth Dec. 16, 2010, no pet.) (mem. op.).

       Although William sought a change to Level III discovery on the day Level II discovery

ended, William never secured a court order for Level III discovery. As a result, his motion for

continuance was filed a month after the discovery deadline had passed. Under Rule 190.5, a court

must allow for modification of a discovery control plan to allow discovery

              (a)    related to new, amended or supplemental pleadings, or new
       information disclosed in a discovery response or in an amended or supplemental
       response, if:

               (1)    the pleadings or responses were made after the deadline for
               completion of discovery or so nearly before that deadline that an adverse
               party does not have an adequate opportunity to conduct discovery related to
               the new matters, and

               (2)    the adverse party would be unfairly prejudiced without such
               additional discovery.

TEX. R. CIV. P. 190.5.

       In July 2018, William claimed Linda had isolated Zeke from friends, but did not

specifically ask Linda who Zeke’s friends were until her January 15 deposition. Linda identified

Zeke’s friends in response to questions by William seeking to establish his claim. William had

knowledge of Zeke’s friends five weeks before the discovery deadline, and Linda’s amended

responses were filed twenty-five days before the discovery deadline. Yet, no discovery requests

were sent to Zeke’s friends, and the motion for continuance generally argued that depositions were


                                                27
required “in order to more fully discover the witness’s connection and relevant knowledge of the

claims in this case.” The trial court could have concluded that William had been afforded adequate

time to conduct discovery related to those friends or that discovery on the issue of alleged isolation

had no bearing on the question of whether Zeke was unduly influenced by Linda at the time he

executed the 2010 will in Branch’s office.

       As for Ryan, the trial court could have concluded that William should have deposed Ryan

earlier since George had identified him in discovery responses filed in August 2018. Linda also

stated in her responses to interrogatories filed in September 2018 that Ryan had received loans and

gifts from Zeke. In spite of this knowledge, William waited until after the discovery period ended

to depose Ryan. “A litigant’s failure to diligently pursue discovery will not authorize the granting

of a continuance.” Howard, 122 S.W.3d at 413 (citing State v. Wood Oil Distrib., Inc., 751 S.W.2d

863, 865 (Tex. 1988)).

       Here, William waited until a month after the summary judgment hearing was set and the

discovery period ended to file his motion for continuance. Under the circumstances discussed

above, we cannot say that the trial court abused its discretion in finding that William had been

afforded a reasonable opportunity to conduct discovery or was not unfairly prejudiced without

additional discovery.




                                                 28
      We affirm the trial court’s judgment.




                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:      December 3, 2019
Date Decided:        January 23, 2020




                                                29
