                                                                               ACCEPTED
                                                                          04-14-00812-CV
                                                               FOURTH COURT OF APPEALS
                                                                    SAN ANTONIO, TEXAS
                                                                     4/16/2015 1:42:12 PM
                                                                            KEITH HOTTLE
                                                                                   CLERK



                     No. 04-14-00812-CV
                                                FILED IN
                                         4th COURT OF APPEALS
                                          SAN ANTONIO, TEXAS
              IN THE COURT OF APPEALS    4/16/2015 1:42:12 PM
          FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE
                                                 Clerk
                OF TEXAS AT SAN ANTONIO


     IN THE ESTATE OF CONSUELLA PERKINS ULBRICH


      From the Probate Court No. One, Bexar County, Texas
              Trial Court Cause No. 2011-PC-0686
        Honorable Polly Jackson Spencer, Judge Presiding


                APPELLANT’S REPLY BRIEF



                                     Respectfully submitted,

                                     Philip M. Ross
ORAL ARGUMENT REQUESTED              State Bar No. 017304200
                                     1006 Holbrook Road
                                     San Antonio, Texas 78218
                                     Phone: 210/326-2100
                                     Email: ross_law@hotmail.com

                               By:   /s/ Philip M. Ross
                                     Philip M. Ross
                                     Attorney for Appellant
                                     Douglas J. Ulbrich
                     TABLE OF CONTENTS

                                                                                           Page

TABLE OF CONTENTS ………………………………………………                                                         ii

INDEX OF AUTHORITIES …………………………………………..                                                      iii

PROCEDURAL HISTORY ………………………………......……….                                                       1

LEGAL ARGUMENT …………...............…………………………….                                                  2

I.   THE TRIAL COURT DID NOT ERR IN GRANTING
     SUMMARY JUDGMENT FINDING THAT A
     PREPONDERANCE OF THE EVIDENCE
     DEMONSTRATED THAT 3939 STARHILL SHOULD BE
     DESIGNATED AS APPELLANT'S PROBATE
     HOMESTEAD. ….......................................................................    2


II   THE TRIAL COURT DID NOT ERR IN GRANTING
     SUMMARY JUDGMENT FINDING THAT APPELLANT
     HAD WAIVED/ABANDONED HIS PROBATE
     HOMESTEAD AT 3939 STARHILL. ….................................                        10

CONCLUSION and PRAYER ……………………….……………..                                                    11

CERTIFICATION ……..…………………………………………..…                                                      12

CERTIFICATE OF COMPLIANCE ..…………...………….…...….                                             12

CERTIFICATE OF SERVICE …………………..………….…...….                                                12




                                             ii
                                        INDEX OF AUTHORITIES

        CASES                                                                           PAGE(S)


Brown v. Reed
48 S.W. 537 (Tex.Civ.App.1898, writ ref'd) ….........................                             6

Casso v. Brand
776 S.W.2d 551 (Tex. 1989) …..................................................                    7

Cobbs v. Coleman
14 Tex. 594 (1855) ….................................................................             12

Hunter v. Clark
687 S.W.2d 811 (Tex.App. —San Antonio 1985) …...........                                  5, 6, 9

In the Estate of Consuella Perkins Ulbrich, deceased
04-12-00514-CV
(Tex. Civ. App. - San Antonio, January 15, 2014) …...............                             1

Jenkins v. Hutchens
287 S.W.2d 295
(Tex.Civ.App.--Eastland 1956, writ ref'd n.r.e.) ….........................                   6

Provident Life & Accident Insurance Co. v. Knott
128 S.W.3d 215-216 (Tex. 2003) ….........................................                 7

 Petrus v. Cage Brothers
128 S.W.2d 537
(Tex.Civ.App.--San Antonio 1939, writ ref'd) ….......................                      9


Simank v. Alford
441 S.W.2d 234 (Tex.Civ.App. —Austin 1969) …........................... 5


                                                  iii
        CASES                                                                         PAGE(S)

Sparks v. Robertson
203 S.W.2d 622 (Tex.Civ.App. Austin 1947, writ ref'd) …......                           8, 9

Spencer v. Schell
173 S.W. 867 (1915) …..............................................................     6

White v. Blackman
168 S.W.2d 531
(Tex.Civ.App. Texarkana 1942, writ ref'd w. o. m.) …..............                       9

Williams v. Williams
569 S.W.2d 867 (Tex. 1978) …...................................................         8




STATE STATUTES AND RULES                                                              PAGE(S)

Texas Constitution, Sec. 52, Art. 16 …........................................          6, 8

Texas Probate Code § 271(b) …..................................................         3,5




                                                 iv
                               04-14-00812-CV

                      IN THE COURT OF APPEALS FOR
                     THE FOURTH DISTRICT OF TEXAS
                         SITTING AT SAN ANTONIO

           IN THE ESTATE OF CONSUELLA PERKINS ULBRICH

_________________________________________________________________
        On appeal from Probate Court No. One, Bexar County, Texas
               Honorable Polly Jackson Spencer, presiding


                        APPELLANT'S REPLY BRIEF



TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:

     Now comes, Douglas J. Ulbrich (“Douglas”), and files his reply to

Appellees' opening brief and would show:

Procedural History

      Appellees refer to the Memorandum Opinion of the Fourth Court of

Appeals, dated September 18, 2013, attached as Exhibit 1 in their Appendix.

However, this memorandum opinion was withdrawn and the Memorandum

Opinion of the Fourth Court of Appeals, No. 04-12-000514-CV, was substituted,

delivered and filed on January 15, 2014. Douglas incorporates the January 15,

2014 Memorandum Opinion of the Fourth Court of Appeals, No. 04-12-000514-
                                      1
CV, by reference for all purposes.

                               LEGAL ARGUMENT

       Appellees discussed two issues in response to Appellant's brief. Appellee's

first issue is stated:

I.     THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY
       JUDGMENT FINDING THAT A PREPONDERANCE OF THE
       EVIDENCE DEMONSTRATED THAT 3939 STARHILL SHOULD BE
       DESIGNATED AS APPELLANT'S PROBATE HOMESTEAD.


       Douglas submits that Appellee's first issue misstates the trial court's finding.

The Order Granting Motion for Summary Judgment did not find that a

preponderance of the evidence demonstrated that 3939 Starhill should be

designated as Appellant's probate homestead.” The trial court found, “as a matter

of law, that at the time of death of Consuella Perkins Ulbrich, the Homestead of

Decedent existed at 3939 Starhill, San Antonio, Texas.”          The trial court also

found, “as a matter of law, that the Texas Constitution's Survivor Homestead

granted to Douglas J. Ulbrich, surviving spouse of Consuella Perkins Ulbrich,

deceased, existed at 3939 Starhill, San Antonio, Texas.” Douglas submits that the

trial court did not make any findings as to the preponderance of evidence or make

any reference to evidence or guiding principles in support of its findings.

       Douglas also submits that there was no evidence that the residence at 3939
                                           2
Starhill, San Antonio, Texas was granted to Douglas as his Texas Constitution's

Survivor Homestead.     On August 10, 2012, the trial court ordered that the

homestead located at 3939 Starhill, San Antonio, Texas shall be set aside for the

benefit of Douglas J. Ulbrich as the surviving spouse homestead, but this Order

was reversed on appeal by the January 15, 2014 Memorandum Opinion of the

Fourth Court of Appeals, No. 04-12-000514-CV.

      Appellees argue that Douglas had the burden of proof pursuant to the Texas

Probate Code, Section 271(c) to demonstrate that his ranch was his probate

homestead, but he was unable to do so because the 3939 Starhill property had been

designated by the couple as their homestead from 2007-2010. However, Douglas

submits that his application for homestead property tax exemptions on his 3939

Starhill residence for tax years 2007-2010 does not preclude his designation of his

ranch as his probate homestead.

      Douglas submits that his burden at the hearing on motion for summary

judgment was not to prove his probate homestead claim by a preponderance of

evidence but to demonstrate that there were genuine issues of material fact as to

each element of his probate homestead claim. Douglas further submits that he met

his burden by filing affidavits of persons with knowledge including himself and


                                         3
supporting documentation, which demonstrated that there were genuine issues of

material fact as to each element of his probate homestead claim. (Affidavit of

Douglas Ulbrich, dated January 10, 2012 [CR 124-127] at page 125 ¶¶ 8-10, page

226 ¶¶ 11-13) (Affidavit of Karon Robertson, dated 10-1-10 [CR 128-130] at page

128 ¶ 2) (Affidavit of Gary Neubauer, dated 9-27-10 [CR 131-133] at page 131 ¶

2) (Affidavit of Al Cargen, dated December 17, 2012 [CR 134-139] at page 134 ¶

¶ 4-5, page 135 ¶¶ 6-16, page 136 ¶¶ 17-25) (Affidavit of Carolyn Watson, dated

December 17, 2012 [CR 140-145] at page 140 ¶ ¶ 4-5, page 141 ¶¶ 6-16, page

142 ¶¶ 17-25) (Affidavit of Mary Dahlman, dated December 17, 2012 [CR 146-

151] at page 147 ¶ ¶ 5-16) (Affidavit of Douglas Ulbrich, dated September 24,

2012 [CR 173-182] at page 173 ¶ ¶ 2-4, page 174-179).

      Therefore, Douglas submits that the summary judgment evidence shows that

his homestead was his 160 acre ranch in Medina County, Texas, not 3939 Starhill,

San Antonio, Texas, and he did not abandon his probate homestead. Alternatively,

the summary judgment evidence establishes a genuine issue of material fact

whether Douglas' homestead was his 160 acre ranch in Medina County, Texas, not

3939 Starhill, San Antonio, Texas, and that he did not abandon his probate

homestead. At the time of his wife's death, Mr. Ulbrich owned four residences, of


                                        4
which two were located at the Ulbrich Ranch, one was in Hondo, and the other

was in San Antonio. Mr. and Mrs. Ulbrich always considered the Ulbrich Ranch

to be their homestead, notwithstanding their application for a property tax

exemption for their house in San Antonio, Bexar County, Texas.

      The facts in the instant case are somewhat similar to the facts in Simank v.

Alford, 441 S.W.2d 234 (Tex.Civ.App. —Austin 1969), which involved an urban

residence that was claimed as an exempt homestead for property tax purposes and

a rural homestead where the family lived only for a brief time. Douglas submits

that a claim of homestead exemption for property tax purposes does not foreclose

his probate homestead claim regarding his rural homestead.

      Douglas submits that he complied with the requirements of Texas Probate

Code § 271(b) by timely filing his application on January 17, 2012 to set aside

exempt property including his rural homestead supported by his verified affidavit

listing all the property that he claims is exempt prior to the Court’s approval of an

inventory, appraisement and list of claims. Id. [CR2 30 – Dkt. 00055] Upon

remand from the first appeal, Douglas filed a motion to set aside exempt personal

property on May 27, 2014. [CR2 9-13]

      Douglas also submits that his voluntary designation of his rural homestead

                                         5
after the death of his wife is authorized by controlling case law. Hunter v. Clark,

687 S.W.2d 811, 814-815 (Tex.App. —San Antonio 1985) summarizes the rights

of the surviving spouse as follows:

        The language of the Constitution is plain. The surviving spouse has
    the same homestead rights as both spouses had prior to the death of one;
    and this is true whether the survivor be the husband or the wife. Brown
    v. Reed, 48 S.W. 537, 538 (Tex.Civ.App.1898, writ ref'd).


    The homestead provision is intended to relate to the rights of heirs and

    the surviving husband or wife, as between themselves, to

    the homestead property. Spencer v. Schell, 107 Tex. 44, 173 S.W.

    867 (1915). TEX. CONST. art. XVI, § 52 gives to the surviving spouse

    the right to use and occupy the homestead, even though it was the

    separate estate of the deceased. Jenkins v. Hutchens, 287 S.W.2d 295,

    298 (Tex.Civ.App.--Eastland 1956, writ ref'd n.r.e.).



      Douglas further submits that Appellees' argument in the last paragraph of

page 16 of their brief that the trial court properly determined that a preponderance

of the evidence dictated that 3939 Starhill be designated as his probate homestead

is misplaced. Douglas again submits that Appellees misconstrue the standard of

proof in a summary judgment hearing.
                                         6
      In order to establish a right to a traditional motion for summary judgment,

the movant must show that there is no genuine issue of material fact and the

movant is entitled to judgment as a matter of law. Provident Life & Accident

Insurance Co. v. Knott, 128 S.W.3d 215-216 (Tex. 2003). If the movant meets

this burden, then the non-movant must produce summary judgment evidence to

raise a genuine issue of material fact. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.

1989). If the non-movant does not succeed in raising a genuine issue of material

fact, then the motion must be granted.

      Douglas submits that the summary judgment evidence clearly shows that

there are genuine issues of material fact as to his claim that the Ulbrich Ranch is

his probate homestead.     Douglas was raised in Medina County, Texas, and

belonged to a ranching family. When he married, he and Consuella continued the

Ulbrich family ranching tradition. At one time, they were managing three ranches

in Bexar, Kendall and Medina counties. Although they maintained a residence in

San Antonio and Hondo, they always considered the Ulbrich Ranch to be their

homestead, notwithstanding their application for a homestead property tax

exemption in Bexar County.

      Douglas' affidavits establish facts relating to his rural Medina County


                                         7
homestead claim. The Affidavits of people, who have known Douglas and his

wife including Al and Katie Cargen, Carolyn Watson, Karon Robertson, Gary

Neubauer, and Mary Dahlman provide corroborating evidence to support Douglas'

designation of the Ulbrich Ranch as his probate homestead.

      In support of his claim of right to designate the Ulbrich Ranch as his

probate homestead, Douglas filed a Formal Bill of Exceptions with attached

exhibits including family photos at the ranch and his sworn affidavit, dated 9-24-

12, as well as a Verified Supplemental Formal Bill of Exceptions w/exhibits dated

10-3-12.

      Douglas also alleges and would prove that banking records from his bank

accounts in Hondo, Medina County, Texas, provide evidence of his rural

homestead. Douglas also alleges and would prove that records of his property tax

accounts Medina County, Texas, provide evidence of his rural homestead.

      Additionally, Douglas alleges and would prove that he and Consuella

purchased 80 acres of land that had been part of the historic Ulbrich Ranch from

his sister, showing that both Mr. and Mrs. Ulbrich committed a substantial

investment and a firm commitment early in their marriage to be a ranching family.

      In 1978, the Texas Supreme Court decided the case of Williams v. Williams,


                                        8
569 S.W.2d 867 (Tex. 1978) and ruled as follows:

        Article XVI, section 52 of the Texas Constitution provides that
   the homestead shall not be partitioned among the heirs of the deceased
   during the lifetime of the surviving husband or wife, or so long as the
   survivor may elect to use or occupy the same as a homestead. [1] This is
   sometimes referred to as the probate homestead. O. Speer, Texas Family
   Law § 36:62, at 208 (5th ed. 1977). This homestead right of the survivor
   has been held to be one in the nature of a legal life estate or life estate
   created by operation of law. See Sparks v. Robertson, 203 S.W.2d
   622 (Tex.Civ.App. Austin 1947, writ ref'd); White v. Blackman, 168
   S.W.2d 531 (Tex.Civ.App. Texarkana 1942, writ ref'd w. o. m.); Petrus
   v. Cage Bros., 128 S.W.2d 537 (Tex.Civ.App. San Antonio 1939, writ
   ref'd); Comment, The Widow's Exemption in Texas, 25 Baylor L.Rev.
   346, 347 (1973). The Probate Code requires that the
   probate homestead and certain exempt personal property [2] be set aside
   to the surviving spouse. Tex.Prob.Code Ann. §§ 271, 272, 283, 284
   (1956). These rights are provided by law for the protection of the family
   and to secure a home for the surviving spouse.


      Therefore, Douglas submits that he is entitled to claim his 160 acre rural

homestead, which is less than the maximum 200 acres for a survivor’s rural

homestead. He also submits that he did not waive his right to claim survivorship

rights in his rural homestead by applying for homestead exemption benefits for his

Bexar County residence for taxation purposes. Hunter v. Clark, 687 S.W.2d 811,

814-815 (Tex.App. —San Antonio 1985).

      Appellees cite a portion of Douglas' testimony at a hearing in Medina

County Court at Law on January 11, 2011 and other summary judgment evidence
                                         9
referred to at the bottom of page 16 of their brief as conclusive proof that a

“preponderance of evidence dictated that 3939 Starhill be designated as

Appellant's probate homestead.” However, considering all of the summary

judgment evidence in the record of this case, Douglas submits that the summary

judgment evidence clearly shows that there are genuine issues of material fact as

to his claim that the Ulbrich Ranch is his probate homestead.

      Appellee's second issue is stated:

II    THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY
      JUDGMENT FINDING THAT APPELLANT HAD WAIVED/
      ABANDONED HIS PROBATE HOMESTEAD AT 3939 STARHILL.

      Douglas submits that Appellees' second issue is moot because the trial court

erred in granting summary judgment finding “as a matter of law, that the Texas

Constitution's Survivor Homestead granted to Douglas J. Ulbrich, surviving

spouse of Consuella Perkins Ulbrich, deceased, existed at 3939 Starhill, San

Antonio, Texas.” If Douglas' probate homestead was not 3939 Starhill, San

Antonio, then evidence that he abandoned that residence is irrelevant to his

probate homestead claim as to the Ulbrich Ranch in Medina County.             The

existence of genuine issues of material fact are for a jury to decide, not for the

Court to determine as a matter of law, which precludes summary judgment.


                                           10
      Douglas respectfully submits that the Order Granting Motion for Summary

Judgment [CR 269-270] was signed in error on November 5, 2014 because there

were genuine issues of material fact as to each of the findings as matters of law

that the homestead of the Decedent was 3939 Starhill, San Antonio, Texas; that

the Texas Constitution's Survivor Homestead granted to Douglas Ulbrich was

3939 Starhill, San Antonio, Texas; that Douglas Ulbrich has voluntarily

abandoned and discontinued use of the Texas Constitution's Survivor Homestead

located at 3939 Starhill, San Antonio, Texas; and that Douglas Ulbrich cannot

transfer the Texas Constitution's Survivor Homestead to any other property.

      WHEREFORE,             PREMISES   CONSIDERED,        Douglas    J.   Ulbrich

respectfully requests the Court to reverse the trial court's order granting summary

judgment in its entirety and remand the case to the trial court for further

proceedings. Mr. Ulbrich requests such further relief at law or in equity to which

he may be justly entitled.




                                        11
                                      Respectfully submitted,

                                    Philip M. Ross
                                    SBN 17304200
                                    1006 Holbrook Road
                                    San Antonio, Texas 78218
                                    Phone: 210/326-2100
                                    Email: ross_law@hotmail.com
                                By: /s/ Philip M. Ross
                                    Philip M. Ross
                                    Attorney for Douglas J. Ulbrich


                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing document has
been e-filed and sent on April 16, 2015 in compliance with the Texas Rules of
Appellate Procedure and/or by email pursuant to agreement to the following
attorneys:

Kristine Arlitt                       William Bailey
206 E. Locust St.                     1100 N. W. Loop 410, Suite 700
San Antonio, Texas 78209              San Antonio, Texas 78213

William D. Crist
3123 N. W. Loop 410
San Antonio, Texas 78230

                                      /s/ Philip M. Ross
                                      Philip M. Ross




                                        12
