                                                                                   ACCEPTED
                                                                               13-14-00667-CV
                                                               THIRTEENTH COURT OF APPEALS
                                                                      CORPUS CHRISTI, TEXAS
                                                                           5/1/2015 3:15:39 PM
                                                                            DORIAN RAMIREZ
                                                                                        CLERK

                     No. 13-14-00667-CV

              Court of Appeals, Thirteenth District FILED IN
                                               13th COURT OF APPEALS
               Corpus Christi – Edinburg, Texas
                                           CORPUS CHRISTI/EDINBURG, TEXAS
                                                5/1/2015 3:15:39 PM
                                                 DORIAN E. RAMIREZ
                                                        Clerk
                        In the Estate of
                 Mildred Ozella Favor Pursley,
              a.k.a. Mildred F. Pursley, Deceased


                Appeal from the Probate Court
                   Hidalgo County, Texas
                   Cause No. P-34,801-A


               REPLY BRIEF OF APPELLANT

                                  J. Joseph Vale
                                  State Bar No. 24084003
                                  jvale@atlashall.com
                                  Charles C. Murray
                                  State Bar No. 14719700
                                  ccmurray@atlashall.com
                                  ATLAS, HALL & RODRIGUEZ, LLP
                                  818 Pecan/P.O. Box 3725
                                  McAllen, Texas 78501
                                  (956) 682-5501 (phone)
                                  (956) 686-6109 (facsimile)

                                  Attorneys for Rocky Joe Pursley




May 1, 2015                       Oral Argument Requested
                                                 Table of Contents

Index of Authorities ...................................................................................................3

Summary of the Reply ...............................................................................................6

Argument....................................................................................................................8

         I.        Assuming for purposes of argument that the 1975 Will is
                   contractual, the 2007 Will and 2010 Codicil do not breach that
                   contract as a matter of law.....................................................................8
                   A.    Introduction. ................................................................................ 8
                   B.    Harold, Jr., and Rolland’s pretermission argument. ................... 9
                   C.    The phrase “any child or children” means what it says. ........... 11
                   D.    Conclusion. ...............................................................................14

         II.       The Court must determine whether the 1975 Will is ambiguous. ......15

         III.      Conclusion ...........................................................................................17

Prayer .......................................................................................................................18

Certificate of Rule 9.4(i) Compliance......................................................................19

Certificate of Service ...............................................................................................20

Appendix ..................................................................................................................21




                                                               2
                                           Index of Authorities

Cases
Baylor Univ. v. Sonnichsen,
  221 S.W.3d 632 (Tex. 2007) (per curiam) ...........................................................15

Boone v. Stone,
  142 S.W.2d 936 (Tex. Civ. App.—Fort Worth 1940, writ dism’d) .....................12

DaimlerChrysler Motors Co. v. Manuel,
 362 S.W.3d 160 (Tex. App.—Fort Worth 2012, no pet.) ....................................11

Guilliams v. Koonsman,
 279 S.W.2d 579 (Tex. 1955) ......................................................................... 11–12

Houston v. Schuhmann,
 92 S.W.2d 1086 (Tex. Civ. App.—Amarillo 1936, writ ref’d)..................... 13, 14

In re Agresti,
  Nos. 13-14-00126-CV, 13-14-00149-CV, 13-14-00154-CV, 13-14-00168-
  CV, 2014 Tex. App. LEXIS 5689, 2014 WL 3408691 (Tex. App.—
  Corpus Christi May 29, 2014, orig. proceeding) (mem. op.) ...............................11

Jones v. Villareal,
  No. 13-12-00166-CV, 2013 Tex. App. LEXIS 1782, 2013 WL 656839
  (Tex. App.—Corpus Christi Feb. 21, 2013, pet. granted, judgm’t vacated
  w.r.m.) (mem. op.) ..........................................................................................16–17

Mitchell v. Mitchell,
 244 S.W.2d 803 (Tex. 1951) ................................................................................13

Morris v. Williams,
 92 S.W.2d 541 (Tex. Civ. App.—Dallas 1936, writ ref’d) ..................................12

Progressive Cnty. Mut. Ins. Co. v. Kelley,
  284 S.W.3d 805 (Tex. 2009) (per curiam) ...........................................................16

Sinnott v. Gidney,
  322 S.W.2d 507 (Tex. 1959) ................................................................................14



                                                         3
Sullivan v. Skinner,
  66 S.W. 680 (Tex. Civ. App. 1902, writ ref’d) ....................................................12

UMLIC VP LLC v. T&M Sales & Envtl. Sys.,
 176 S.W.3d 595 (Tex. App.—Corpus Christi 2005, pet. denied) ........................15


Statutes
Tex. Estates Code Ann. § 255.051...........................................................................10




                                                     4
                              No. 13-14-00667-CV

                       Court of Appeals, Thirteenth District
                        Corpus Christi – Edinburg, Texas


                                 In the Estate of
                          Mildred Ozella Favor Pursley,
                       a.k.a. Mildred F. Pursley, Deceased


                          Appeal from the Probate Court
                             Hidalgo County, Texas
                             Cause No. P-34,801-A


                        REPLY BRIEF OF APPELLANT


      Appellant Rocky Joe Pursley files this Reply Brief pursuant to Rule 38 of

the Texas Rules of Appellate Procedure. Parties will be referred to as in the trial

court or by name.          References to the Clerk’s Record will be to

{volume}CR{page}, and references to the Appendix will be to App{tab}.
                               Summary of the Reply

      The heart of the dispute between Rocky and his brothers is whether their

parents’ joint 1975 Will allows the surviving parent to choose which child or

children will receive the remaining estate in a new will or codicil. The trial court’s

summary judgment in favor of Rocky’s brothers Harold, Jr., and Rolland cannot be

affirmed unless Harold, Jr., and Rolland demonstrate as a matter of law both that

the 1975 Will is a contract and that it requires the remaining estate to go to all three

sons, share and share alike. Harold, Jr., and Rolland have failed to meet this

burden, and as a result, the trial court’s summary judgment must be reversed.

      Harold, Jr., and Rolland assert that their parents, Harold, Sr., and Mildred,

intended to shackle whichever parent survived to a specific, non-discretionary

testamentary plan for the rest of the survivor’s life, which in this case was more

than three decades. Specifically, Harold, Jr., and Rolland argue that, as a matter of

law, their parents intended for the remaining estate to go to the three sons equally

after the surviving spouse died. To succeed with this argument, Harold, Jr., and

Rolland must overcome a daunting obstacle in the 1975 Will’s language: they

must demonstrate that the testators intended two different provisions with

remarkably different language to have the same meaning. As shown in their brief

before this Court and discussed below, the 1975 Will’s language proves

insurmountable for Harold, Jr., and Rolland. See Argument § I.

                                           6
      In an attempt to lessen their burden as summary judgment movants, Harold,

Jr., and Rolland claim the Court cannot consider whether the 1975 Will is

ambiguous. In addition to the undisputable fact that Rocky asserted ambiguity in

his pleadings as an alternative argument, this argument lacks merit. First, as

discussed below, Rocky did not waive his ambiguity point. Second, Harold, Jr.,

and Rolland are incorrect in contending that the trial court’s summary judgment

can stand even if the 1975 Will is ambiguous.        Even if no party had raised

ambiguity, the Court would still need to determine whether the 1975 Will is

ambiguous to resolve this appeal and would have the power to raise ambiguity sua

sponte. See Argument § II.

      As to Rocky’s argument that the 1975 Will is not contractual, Rocky stands

on his opening brief in this Court. Even if the 1975 Will is contractual, however,

Mildred did not breach that contract. Because Harold, Sr., and Mildred agreed to

allow the surviving spouse discretion to choose which child or children received

the remaining estate, Mildred was within her right to execute the 2007 Will and

2010 Codicil, which did not give the remainder of the estate to all the children in

equal shares. Rocky asks this Court to enforce his parents’ intent and to reverse

the trial court’s summary judgment against him.




                                        7
                                     Argument

I.    Assuming for purposes of argument that the 1975 Will is contractual,

the 2007 Will and 2010 Codicil do not breach that contract as a matter of law.

      A.     Introduction.

      Harold, Jr., and Rolland are saddled with the unenviable burden of

demonstrating, as a matter of law, that Harold, Sr., and Mildred intended for two

different provisions of the 1975 Will with strikingly different language to have the

same meaning—that is, to give the remaining estate to all three children, share and

share alike. In their brief before the Court, Harold, Jr., and Rolland fail to meet

this burden, and as a result, the trial court erred in granting their summary

judgment motion.

      Paragraph IV of the 1975 Will of Harold, Sr., and Mildred states that upon

the death of the survivor of them, the remaining estate shall go to and vest in “any

child or children of this marriage.” 1CR57–58. Harold, Jr., and Rolland contend

that this will is contractual, meaning that the survivor is prohibited from creating a

new will that disposes of the remaining estate in any way other than to “any child

or children of this marriage.” See Appellees’ Brief 31–46. A subsequent will and

codicil of the survivor, Mildred, devised the property to two children of the

marriage, Rocky and Rolland. 1CR77, 83. These gifts were not in equal shares,

and no property was left to the remaining child, Harold, Jr. See 1CR77, 83.

                                          8
      Rocky contends that even if the 1975 Will is contractual, Mildred did not

breach it. See Appellant’s Brief 24–33. This is because the provision means what

it says; that is, the survivor has the discretion to give the property to one or more of

the children and is not required to give it in equal shares. Id. Harold, Jr., and

Rolland argue that the language “any child or children” implies that the property

must go to all of the children in equal shares. Appellees’ Brief 46–57.

      Paragraph V of the 1975 Will presents a major problem for this argument of

Harold, Jr., and Rolland. See 1CR58. This paragraph provides that if Harold, Sr.,

and Mildred both die in the same accident or within the same week, the property

goes to “our beloved children, HAROLD WAYNE PURSLEY, JR., ROLLAND

HUGH PURSLEY AND ROCKY JOE PURSLEY, share and share alike.”

1CR58. Thus, Paragraph V demonstrates that when Harold, Sr., and Mildred

wanted to provide that all three children inherit in equal shares, they knew how to

say so with unmistakable clarity. However, they did so only in connection with

Paragraph V and not in connection with Paragraph IV, the provision at issue.

1CR57–58.

      B.     Harold, Jr., and Rolland’s pretermission argument.

      Late in their brief, Harold, Jr., and Rolland finally turn to the question of

why the language of Paragraph V was not also used in Paragraph IV. They

speculate the reason is the “likely” concern about the possibility of a pretermitted

                                           9
child. See Appellees’ Brief 53–54. A pretermitted child is a child born to or

adopted by the testator after a will is executed. See Tex. Estates Code Ann.

§ 255.051/AppA. Even assuming that the possibility of another child was utmost

in the minds of testators the age of Harold, Sr., and Mildred,1 this argument is

unpersuasive.

      Harold, Jr., and Rolland suggest that the language of Paragraph V was not

used in Paragraph IV because to do so would have resulted, under the

pretermission statute, in a pretermitted child receiving part of the bequest intended

for the survivor. Appellees’ Brief 54. This speculation is totally implausible. If

Harold, Sr., and Mildred had been concerned about a pretermitted child, that

concern could have been addressed by using the Paragraph V language in

Paragraph IV and simply adding the words “and any children born to or adopted by

us after the date of this will.” It makes no sense that testators motivated to avoid

the pretermission statute would have done so in language completely different

from the clear language of Paragraph V.

      Furthermore, if Harold, Sr., and Mildred really thought that the language of

Paragraph IV clearly provided that the remaining estate should go to all of their

children, share and share alike, they would have used the Paragraph IV language in

Paragraph V rather than going to the trouble of using substantially different

1
  Harold, Sr., was between 55 and 57 years old at the time of the 1975 Will. See 1CR61.
Mildred was between 45 and 47 years old at such time. See 1CR5.
                                          10
language in Paragraph V to express the same desire. In short, the pretermission

argument does not explain why the language in Paragraphs IV and V differs. This

argument falls drastically short of meeting Harold, Jr., and Rolland’s burden to

establish their interpretation as a matter of law.

      Courts should presume that when parties use different language in different

places of a contract, the difference is intentional. See DaimlerChrysler Motors Co.

v. Manuel, 362 S.W.3d 160, 184–85 (Tex. App.—Fort Worth 2012, no pet.); see

also In re Agresti, Nos. 13-14-00126-CV, 13-14-00149-CV, 13-14-00154-CV, 13-

14-00168-CV, 2014 Tex. App. LEXIS 5689, at *22–26, 2014 WL 3408691 (Tex.

App.—Corpus Christi May 29, 2014, orig. proceeding) (mem.op.). In the present

case, that presumption stands unrebutted.

      C.     The phrase “any child or children” means what it says.

      According to Harold, Jr., and Rolland, legal authorities firmly establish the

principle that the language “‘any child or children’ implies (emphasis added) a gift

to all (emphasis original) the living children.” Appellees’ Brief 50. They cannot

explain why the attorney drafting the 1975 Will would rely upon what they admit

is an implication rather than the crystal clear language used in Paragraph V.

      Further, the authorities cited by Harold, Jr., and Rolland provide very weak

support for this supposed principle. In both Guilliams and Boone, there was only

one possible child to which the language applied. Guilliams v. Koonsman, 279

                                           11
S.W.2d 579, 581 (Tex. 1955); Boone v. Stone, 142 S.W.2d 936, 938 (Tex. Civ.

App.—Fort Worth 1940, writ dism’d); see Appellees’ Brief 40–41. In Sullivan,

the question was whether a debtor husband had any interest in rent from his wife’s

separate property when that rent was sought by a creditor via a writ of

garnishment. Sullivan v. Skinner, 66 S.W. 680, 681–82 (Tex. Civ. App. 1902, writ

ref’d); see Appellees’ Brief 42. In Morris, the question was whether the reference

to “child or children” in the intestacy statutes included just minor children or adult

children as well. Morris v. Williams, 92 S.W.2d 541, 543–44 (Tex. Civ. App.—

Dallas 1936, writ ref’d); see Appellees’ Brief 39. Thus, the issue of how the

language “any child or children” should be applied in the event of multiple

children is not presented in any of these cases. The only other authority cited by

Harold, Jr., and Rolland for this supposed principle is the intestacy statute, Section

201.002 of the Texas Estates Code. Appellees’ Brief 42. Of course, the present

case does not concern intestacy.

      Even if dictum from these cases, one of which is over a century old and all

of which are more than a half-century old, together with an irrelevant statute, do

establish that “child or children” generally means all children, that principle is not

applicable in the present case. First, none of these authorities concern contractual

wills, and contractual wills are disfavored and should be construed narrowly. See

Appellant’s Brief 27–29. Secondly, even Harold, Jr., and Rolland concede that

                                         12
their principle should not be applied when the context shows a clear intention to

the contrary. Appellees’ Brief 51–52 (citing Mitchell v. Mitchell, 244 S.W.2d 803,

806 (Tex. 1951)). In the present case, the differences between Paragraphs IV and

V show a clear intention to the contrary. 1CR57–58; see supra § I.B.

      Rocky’s position is also supported by the 1975 Will’s provision concerning

vesting. In that connection, the Will provides as follows: “[U]pon the death of

such survivor, any of such estate then remaining shall go and vest in any child or

children of this marriage.” 1CR57–58 (emphasis added). The fact that the 1975

Will provides that vesting does not take place until the death of the survivor makes

sense only if the survivor, as Rocky argues, has discretion in apportioning the

bequest among one or more of the children. Harold, Jr., and Rolland argue that the

will is contractual and that the survivor has no discretion. If that were true, there is

no reason to expressly delay vesting until the death of the survivor.

      Harold, Jr., and Rolland contend that vesting occurred at the death of

Harold, Sr. See Appellees’ Brief 47–48 (citing Houston v. Schuhmann, 92 S.W.2d

1086, 1089 (Tex. Civ. App.—Amarillo 1936, writ ref’d)).              However, as the

following language of Houston indicates, the general rule that vesting takes place

at the death of the testator applies only when the will does not fix the time for

vesting: “The general rule is that a devise or bequest to a class, if no time for




                                          13
vesting is fixed will take effect at the death of the testator.” Houston, 92 S.W. 2d at

1089 (emphasis added).

      Harold, Jr., and Rolland characterize the argument as whether Mildred had

“the right to unilaterally disregard her husband’s wishes.” Appellees’ Brief at 22.

That formulation merely begs the question. The correct formulation is whether the

testators intended to contract away their right, as survivor, to give the property to

one or more of the children in shares deemed appropriate by the survivor.

      Harold, Jr., and Rolland cite Sinnott v. Gidney, 322 S.W.2d 507, 512 (Tex.

1959) for the proposition that in a case of real doubt, a construction that gives

equal treatment to all heirs of the same class is favored. Appellees’ Brief 45.

Sinnott, however, is inapplicable. It does not deal with contractual wills, which are

strictly construed. See Sinnott, 322 S.W.2d at 509; Appellant’s Brief 27–29.

Moreover, as demonstrated above and in Rocky’s Brief of Appellant, there is no

real doubt as to the meaning of Paragraph IV’s “any child or children” language in

the present case. See supra § I.B; Appellant’s Brief 24–33.

      D.     Conclusion.

      Even if the 1975 Will is contractual, Mildred did not breach that contract in

her subsequent will and codicil. The testators did not contract away their right, as

survivor, to give the property to one or more of the children in shares deemed




                                          14
appropriate by the survivor. In fact, they specifically contracted for the surviving

spouse to have that ability.

II.   The Court must determine whether the 1975 Will is ambiguous.

      Rocky did not waive his alternative argument of ambiguity, and even if

Rocky had never raised ambiguity, this Court would still need to address

ambiguity.

      The specificity of Rocky’s pleading is subject to the fair notice pleading rule

that liberally construes all pleadings in favor of the pleader. UMLIC VP LLC v.

T&M Sales & Envtl. Sys., 176 S.W.3d 595, 609 (Tex. App.—Corpus Christi 2005,

pet. denied). Any objection to the specificity of Rocky’s pleading should have

been made via special exception. See Baylor Univ. v. Sonnichsen, 221 S.W.3d

632, 635 (Tex. 2007) (per curiam) (explaining that parties should use special

exceptions when they believe that a pleading is not clear or sufficiently specific).

Rocky undisputedly pleaded ambiguity, and Harold, Jr., and Rolland made no

exception to Rocky’s pleading. 1CR95–96, 2CR234–35 (pleading); Appellees’

Brief 27 (acknowledging pleading).

      Harold, Jr., and Rolland claim that Rocky “conceded that there are no fact

issues to be decided by the jury.” Appellees’ Brief 28. This assertion is false

under the record. Rocky’s counsel never agreed that no fact issues remained in this

case, and accordingly Harold, Jr., and Rolland cite nothing in the record where

                                        15
Rocky’s counsel made such a concession. Instead Harold, Jr., and Rolland cite

their own counsel’s statement, but Rocky’s counsel never agreed with that

statement. Appellees’ Brief 29 (citing 2CR250). The unilateral statement of

Harold, Jr., and Rolland’s counsel at the end of a pre-trial hearing concerning the

remaining proceedings does not constitute an agreement of the parties or a

concession on Rocky’s behalf. See 2CR253. As a result, no waiver of Rocky’s

live pleadings occurred.

      Even if Rocky had never raised ambiguity in the trial court or on appeal,

however, the Court would still need to determine whether the 1975 Will is

ambiguous. Progressive Cnty. Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 808 (Tex.

2009) (per curiam) (finding ambiguity though neither party raised it). Ambiguity

is a question of law to be decided by the Court. Id. When a contract contains an

ambiguity, the granting of a motion for summary judgment is improper because the

interpretation of the instrument becomes a fact issue. Id. at 809. Accordingly

Harold, Jr., and Rolland, as summary judgment movants, had the burden to prove

the 1975 Will was not ambiguous as a matter of law. See id. at 808–09. As a

result, this Court must determine whether the contract is ambiguous, and even if no

party had argued ambiguity, this Court would have the power to raise the issue

itself to resolve the appeal. Id.; Jones v. Villareal, No. 13-12-00166-CV, 2013

Tex. App. LEXIS 1782, at *17, 2013 WL 656839 (Tex. App.—Corpus Christi Feb.

                                        16
21, 2013, pet. granted, judgm’t vacated w.r.m.) (mem. op.) (“The issue of

contractual ambiguity may be considered sua sponte by a reviewing court.”).

III.   Conclusion

       Even if the 1975 Will is contractual, its language shows that Harold, Sr., and

Mildred intended to allow the survivor to choose which child or children received

the remaining estate. A key factor in understanding the 1975 Will is the difference

in the language between Paragraphs IV and V. Harold, Jr., and Rolland cannot

provide a convincing explanation for why these two paragraphs should have the

same effect. In the alternative, the meaning of the 1975 Will is ambiguous. In

either case and for the additional reasons stated in Rocky’s opening brief, the trial

court’s summary judgment must be reversed.




                                         17
                                     Prayer

      For the foregoing reasons, Rocky requests that this Court reverse the trial

court’s imposition of a constructive trust and render judgment either (1) that the

1975 Will is not contractual or (2) that such contract was not breached. As a

result, the case should be remanded for further proceedings, including proceedings

on the issue of undue influence.

      Alternatively, Rocky requests that this Court reverse the trial court’s

imposition of a constructive trust and render judgment that the 1975 Will is

ambiguous either as to (1) whether the 1975 Will is contractual or (2) whether that

alleged contract was breached. As a result, the case should be remanded for trial

on parol evidence.

                                      Respectfully submitted,

                                      Atlas, Hall & Rodriguez, LLP
                                      818 Pecan/P.O. Box 3725
                                      McAllen, Texas 78501/78502
                                      (956) 682-5501 (phone)
                                      (956) 686-6109 (facsimile)


                                      By: /s/ J. Joseph Vale
                                            J. Joseph Vale
                                            State Bar No. 24084003
                                            jvale@atlashall.com
                                            Charles C. Murray
                                            State Bar No. 14719700
                                            ccmurray@atlashall.com

                                      Attorneys for Appellant Rocky Joe Pursley
                                        18
                      Certificate of Rule 9.4(i) Compliance

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify

that the number of words in this Brief of Appellant, excluding those matters listed

in Rule 9.4(i)(1), is 2,940 words per the word processing program used for its

preparation (Microsoft Word).



                                      /s/ J. Joseph Vale
                                              J. Joseph Vale




                                        19
                               Certificate of Service

      I certify that the foregoing document was electronically filed with the Clerk

of the Court using the electronic case filing system of the Court. I also certify that

a true and correct copy of the foregoing was served on the following counsel of

record on May 1, 2015 as follows:

Recipient:                                Attorney for:         Served by:
Edmundo O. Ramirez                        Appellees, Harold     Electronically if
(eor@ekrattorneys.com)                    Wayne Pursley, Jr.,   available, or by
Minerva I. Zamora                         and Rolland Hugh      facsimile
(miz@ekrattorneys.com)                    Pursley
Daniel Koeneke
(daniel@ekrattorneys.com)
ELLIS, KOENEKE & RAMIREZ L.L.P.
1101 Chicago Avenue
McAllen, Texas 78501
Facsimile: (956) 682-0820
Marlane A. Meyer                          Temporary             Electronically if
(mmeyer308@aol.com)                       administrator,        available, or by
MEYER & GUERRERO, L.L.P.                  PlainsCapital Bank    facsimile
308 N. 15th Street
McAllen, Texas 78501
Facsimile: (956) 631-1489




                                       /s/ J. Joseph Vale
                                               J. Joseph Vale




                                         20
                   Appendix

Tab   Date        Document

A     —      Tex. Estates Code Ann. § 255.051




                       21
    TAB A

OF THE APPENDIX
                             Tex. Estates Code § 255.051
            This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > ESTATES CODE > TITLE 2. ESTATE OF DECEDENTS; DURABLE
POWERS OF ATTORNEY > SUBTITLE F. WILLS > CHAPTER 255. CONSTRUCTION AND
INTERPRETATION OF WILLS > SUBCHAPTER B. SUCCESSION BY PRETERMITTED CHILD

§ 255.051. Definition
  In this subchapter, ″pretermitted child″ means a testator’s child who is born or
  adopted:
      (1) during the testator’s lifetime or after the testator’s death; and
      (2) after the execution of the testator’s will.

History

Enacted by Acts 2009, 81st Leg., ch. 680 (H.B. 2502), § 1, effective January 1,
2014.
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