                                MEMORANDUM OPINION
                                       No. 04-10-00389-CV

             IN THE MATTER OF THE ESTATE OF ELISA R. CANTU, Deceased

                         From the Probate Court No 1, Bexar County, Texas
                                  Trial Court No. 1999-PC-0683
                         Honorable Polly Jackson Spencer, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: February 9, 2011

AFFIRMED

           Nicolasa Vela appeals a summary judgment in a probate case dismissing her claim that

the decedent’s signature on a will admitted to probate was forged. Because res judicata barred

Vela from bringing her claim, we affirm the trial court’s judgment.

                                          BACKGROUND

           On December 22, 1999, the probate court signed a judgment denying a will contest and

ordering that the will of Elisa R. Cantu “previously admitted to probate shall remain so.” The

judgment was appealed to this court. See Vela v. Guerra, No. 04-00-00094-CV, 2001 WL

575146, at *1 (Tex. App.—San Antonio May 30, 2001, pet. denied). The issue presented on

appeal was whether the evidence was factually insufficient to support the trial court’s finding
                                                                                    04-10-00389-CV


that the plaintiffs failed to carry their burden of proof on their undue influence and lack of

testamentary capacity claims. Id. This court affirmed the trial court’s judgment. Id.

       On November 27, 2002, Vela filed a pleading seeking to set aside the will and have

Cantu declared intestate based on her contention that Cantu’s signature on the will was forged.

On June 7, 2005, Lola Guerra filed a motion for partial summary judgment asserting that the two

year limitations period contained in Section 31 of the Texas Probate Code barred Vela’s claim.

Guerra also asserted that Vela’s claim was barred by res judicata because the trial court

previously found that the will had been executed with all formalities required by law. Vela

responded that her claim was not barred by limitations, asserting Section 93 of the Texas Probate

Code permitted her to file her claim of forgery within two years of her discovery that Cantu’s

signature on the will was forged. In the alternative, Vela argued her claim was not barred

because it was an equitable bill of review subject to the four year limitations period contained in

Section 16.051 of the Texas Civil Practice and Remedies Code. The trial court granted Guerra’s

motion and dismissed Vela’s claim.

                                     STANDARD OF REVIEW

       We review a trial court’s summary judgment de novo. Provident Life & Acc. Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003). “When reviewing a summary judgment, we take as

true all evidence favorable to the nonmovant, and we indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor.” Id. The party moving for summary judgment

bears the burden to show that no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law. Id. at 216.




                                               -2-
                                                                                     04-10-00389-CV


                                           DISCUSSION

       In order for Guerra to be entitled to summary judgment based on the affirmative defense

of res judicata, Guerra was required to prove as a matter of law: (1) a prior final determination on

the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with

them; and (3) a second action based on the same claims as were or could have been raised in the

first action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). “The rule of res

judicata in Texas bars litigation of all issues connected with a cause of action or defense which,

with the use of diligence, might have been tried in a former trial, as well as those which were

actually tried.” Ogletree v. Crates, 363 S.W.2d 431, 435 (Tex. 1963). “[T]he general rules of

law pertaining to the ‘res judicata’ doctrine apply to a will contest.” Martinez v. Arredondo, 406

S.W.2d 513, 514 (Tex. Civ. App.—Beaumont 1966, no writ); see also Ladehoff v. Ladehoff, 436

S.W.3d 334, 338–340 (Tex. 1968) (examining whether res judicata requirements were met in

context of will contest); Stovall v. Mohler, 100 S.W.3d 424, 429 (Tex. App.—San Antonio 2002,

pet. denied) (Green, J., concurring) (asserting judgment in will contest was res judicata of

subsequent claim).

       The December 22, 1999 judgment denying the will contest was a prior final

determination by the probate court, and Vela was a party to the will contest. Accordingly, the

only additional requirement Guerra was required to prove was that Vela’s forgery claim could

have been raised in the will contest proceeding. See Travelers Ins. Co., 315 S.W.3d at 862.

       Section 93 of the Texas Probate Code generally permits any interested party to institute

suit to cancel a will admitted to probate for forgery within two years after the discovery of such

forgery.   TEX. PROB. CODE ANN. § 93 (West 2003).            Although Section 93 incorporates a

discovery rule which could otherwise save a forgery claim from a limitations defense, the



                                                -3-
                                                                                                 04-10-00389-CV


discovery rule does not apply to the defense of res judicata, and a claim of forgery is subject to

being barred under res judicata principles. See Goggin v. Grimes, 969 S.W.2d 135, 137–38 (Tex.

App.—Houston [14th Dist.] 1998, no pet.); Clark v. Snider, 738 S.W.2d 49, 50-51 (Tex. App.—

Texarkana 1987, no writ). The relevant inquiry is whether, with the use of diligence, the forgery

claim could have been raised in the prior will contest. See Travelers Ins. Co., 315 S.W.3d at

862; Ogletree, 363 S.W.2d at 435; Martinez, 406 S.W.2d at 514.

        Guerra presented summary judgment evidence that in the will contest proceeding, the

probate court found, “The attorney and the notary also testified that the will was executed with

the formalities required by law.” In this court’s prior opinion relating to the will contest, we

noted that the attorney who prepared Cantu’s will testified that Cantu “made her mark, witnessed

by two secretaries in the office, and verified by a notary public.” Vela, 2001 WL 575146, at *3.

In addition, we noted that the notary public testified that “she would not have notarized [Cantu’s]

mark if she thought there was any problem with [Cantu’s] understanding.” Id. The presence of

Cantu’s signature on the will was one of the formalities the trial court was required to consider in

admitting the will to probate. See TEX. PROB. CODE ANN. § 59 (West 2003) (listing signature of

testator as a requisite of a will). Thus, whether Cantu’s mark was forged is an issue that, with

reasonable diligence, Vela could have raised in the prior will contest proceeding. Accordingly,

the trial court did not err in granting summary judgment and dismissing Vela’s claims based on

res judicata. 1

                                                CONCLUSION

        The trial court’s judgment is affirmed.

                                                         Rebecca Simmons, Justice


1
  Because we affirm the trial court’s judgment based on res judicata, we do not address the alternative ground of
limitations. TEX. R. APP. P. 38.1 (opinion should address only issues necessary to the disposition of the appeal).

                                                      -4-
