                                   MEMORANDUM OPINION
                                            No. 04-11-00586-CV

                                  In re: The ESTATE of Frank O’NEIL

                             From the County Court, Kimble County, Texas
                                        Trial Court No. 2247
                             Honorable William T. McGee, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 31, 2012

REVERSED AND REMANDED

           This is an appeal from the trial court’s order granting appellee Gloria Fanous O’Neil’s

traditional and no-evidence motions for summary judgment in a will contest. After the final

judgment was entered, the trial court denied appellant Michael O’Neil’s motion for new trial. 1

Michael raises the following issues on appeal: (1) the trial court erroneously struck his summary

judgment evidence and erroneously considered hearsay evidence attached to Gloria’s motions;

and (2) the trial court erroneously granted the no-evidence and traditional motions for summary

judgment regarding Frank O’Neil Jr.’s testamentary capacity.                   We reverse the trial court’s

judgment and remand this matter to the trial court for proceedings consistent with this opinion.


1
 Because several parties share the same last names, for purposes of this opinion, many of the parties and witnesses
are referred to by their first names.
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                                           BACKGROUND

       Because the facts of this case are vital to our analysis of the issues raised, we provide a

rather detailed factual background.

       Frank O’Neil Jr., the deceased, was a retired sergeant with the Houston Police

Department. After retiring, Frank moved to Junction, Texas in 2005. Frank met Gloria near the

end of 2007. After being hospitalized in Abilene for respiratory issues in December 2008,

during the first week of January 2009, Frank was diagnosed with mesothelioma, a rare form of

lung cancer. Out of concern that his bills be paid while he was ill, Frank opened a joint checking

account with Gloria.     Within a very short period of time, Frank was told by his treating

oncologist that his mesothelioma was in the end stages and that he should get his affairs together.

       Ted Morgan, a police officer with the Junction Police Department and a friend of

Frank’s, averred that on January 22, 2009, Gloria told him she was handling Frank’s affairs

because Frank was incapable of handling them himself. While Frank was hospitalized, Morgan

observed a rapid decline in Frank’s physical and mental state. Specifically, Morgan’s deposition

testimony revealed that on February 4, 2009, while visiting Frank at the hospital, he concluded

that Frank was not capable of making any decisions regarding his financial affairs. Morgan

recalled that when he visited on February 4th and 5th, Frank was confined to his bed, in pain,

and not in full control of his mental faculties.

       Patricia McNenemy, Frank’s sister, observed a similar decline in Frank. Her deposition

testimony explained that on February 3, 2009, Frank called her and told her he did not know

what was going on and asked Patricia and her husband, Guy McNenemy, to come to Abilene.

Patricia and Guy immediately traveled to Abilene and visited with Frank at the hospital on

February 4th, 5th, and 6th. Guy, also a retired police officer, testified he had known Frank for



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over fifty years and, in his opinion, Frank was not capable of transacting any business during that

time period. Similar to the exchange between Gloria and Morgan, Guy also testified during his

deposition that Gloria told him in early January 2009 that she held a power of attorney over

Frank’s affairs.

       On February 6, 2009, attorney Cathy Fowlkes met with Frank at the hospital, travelled to

her office to draft the will, and returned that same day to execute the will. Gloria previously

employed Fowlkes for her personal estate planning. Lisa Jones, a notary and friend of Gloria’s

for over twenty years, acted as notary. Additionally, the witnesses to the will signing, Kyra

Shahan, Dominic Juliano, and Kelly Williamson, were all at the hospital and approached by Lisa

to serve as witnesses. All five individuals’ depositions provided that during the will signing,

Frank was competent and understood the proceedings.

       Simultaneous with the will signing, Fowlkes presented Frank with forms for his

signature. The forms gave Gloria control over Frank’s sizable assets, which were managed by

Merrill Lynch. On February 19, 2009, Fowlkes returned to the hospital and gave Frank a form to

sign over his annuity to Gloria.

       On February 17, 2009, Gloria submitted a wedding license application, with an affidavit

of absence, signed by Frank and notarized by Lisa Jones. On February 21, 2009, Gloria and

Frank were married in the chapel at the Abilene Hospital. Frank died on February 27, 2009, at

the age of sixty-six.

       On March 6, 2009, Gloria filed an Application for Probate of Will. On March 11, 2009,

Michael O’Neil, Frank’s only child, filed his opposition to the Application for Probate of Will,

Request to Annul Marriage, and Request for Appointment of Statutory Judge. On December 13,




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2010, Gloria filed no-evidence and traditional motions for summary judgment regarding

testamentary capacity. Michael’s response was filed with the trial court on April 7, 2010.

       After a hearing, the trial court granted Gloria’s motions and on May 23, 2011, the trial

court signed a final judgment. Michael’s motion for new trial was overruled and this appeal

ensued.

       Gloria first argues this court should not consider Michael’s response to Gloria’s

traditional motion for summary judgment because it was not timely filed and Michael did not

obtain leave of court to file the late response. TEX. R. CIV. P. 166a(c). The trial court’s order

specifically states he considered Michael’s response—“After due consideration of the Motions,

the Responses, and all evidence attached to said Motions and Responses . . . .” “Texas courts

have repeatedly confirmed that unless there is an affirmative indication in the record that the trial

court permitted the late filing of the response, that response is a ‘nullity.’” Timothy Patton,

Summary Judgments in Texas: Practice, Procedure, and Review § 2.02[2] (3d ed. 2010); see also

INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985); Pinckley v. Gallegos, 740 S.W.2d

529, 532 (Tex. App.—San Antonio 1987, writ denied). The trial court’s affirmative indication

that he considered the late response may be proven by “a written ruling incorporated into the

summary judgment reciting the response was considered.” Patton, Summary Judgments in

Texas: Practice, Procedure, and Review § 2.02[2]. By making such a recitation in the judgment,

the trial court did not except Michael’s response from his consideration. We therefore conclude

“the language of the order as a whole shows that the trial court granted leave for” Michael to file

his response to Gloria’s motions for summary judgment. See DMC Valley Ranch, L.L.C. v.

HPSC, Inc., 315 S.W.3d 898, 903 (Tex. App.—Dallas 2010, no pet.) (holding that court’s order

including “[a]fter considering all of the pleadings, the motions, the responses, the replies, the



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evidence on file” showed the court granted the requested leave). Accordingly, we will consider

Michael’s response in our review.

                                    FINALITY OF THE JUDGMENT

        Although Michael asserts the trial court’s judgment was not final due to a pending contest

of Frank’s and Gloria’s marriage, we disagree. Texas courts have long held that an order or

judgment in probate may be final and appealable even in the absence of full and final disposition

of the entire probate proceeding. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

The general rule is that an appeal may be taken only from final judgments. Id. Probate

proceedings, however, are often an exception to the “one final judgment.” De Ayala v. Mackie,

193 S.W.3d 575, 578 (Tex. 2006).           “In other words, an order is appealable if it finally

adjudicates some substantial right. Whereas, on the other hand, if it merely leads to further

hearings on the same issue, it is interlocutory.” Estate of Wright, 676 S.W.2d 161, 163 (Tex.

App.—Corpus Christi 1984, writ ref’d n.r.e.) (emphasis original).              Here, the question of

testamentary capacity conclusively disposed of the one phase of the proceedings and thus finally

adjudicated a substantial right. Id. Accordingly, we hold the trial court’s rulings on the motions

for summary judgment are final and appealable. See De Ayala, 193 S.W.3d at 578; Crowson v.

Wakeham, 897 S.W.2d 779, 781-83 (Tex. 1995).

                                         SHAM AFFIDAVITS

        In Gloria’s reply to Michael’s response to her motions for summary judgment, Gloria

alleged the affidavits of Patricia and Guy McNenemy and Ted Morgan contradicted their

deposition testimony and therefore constituted sham affidavits. See TEX. R. CIV. P. 166a(h)

(allowing for opposing party to collect reasonable attorneys’ fees if “any of the affidavits

presented pursuant to this rule are presented in bad faith or solely for the purpose of delay . . . .”).



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The trial court sustained the objection and struck the affidavits. Michael contends the trial court

erred in sustaining the objection and striking the affidavits. We agree.

                                       Standard of Review

       We review a trial court’s ruling that sustains or overrules an objection to summary

judgment evidence for an abuse of discretion. Doncaster v. Hernaiz, 161 S.W.3d 594, 601 (Tex.

App.—San Antonio 2005, no pet.) (citing Owens–Corning Fiberglas Corp. v. Malone, 972

S.W.2d 35, 43 (Tex. 1998)). A trial court abuses its discretion if its ruling is arbitrary and

unreasonable or without reference to any guiding rules or principles. Cire v. Cummings, 134

S.W.3d 835, 838-39 (Tex. 2004). To obtain a reversal on the trial court’s exclusion of evidence,

the appellant must establish the error was harmful and was calculated to cause and probably did

cause the rendition of an improper judgment. Doncaster, 161 S.W.3d at 601; TEX. R. APP. P.

44.1(a). Generally, absent a showing the whole case turns on the complained of evidence, the

error is not reversible. Doncaster, 161 S.W.3d at 601 (citing Interstate Northborough P’ship v.

State, 66 S.W.3d 213, 220 (Tex. 2001); Atl. Mut. Ins. Co. v. Middleman, 661 S.W.2d 182, 185

(Tex. App.—San Antonio 1983, writ ref’d n.r.e.)).

                                             Analysis

       An allegation that an affidavit is a sham generally arises when a party presents an

affidavit made in bad faith or for purposes of delay. TEX. R. CIV. PROC. 166a(h). Generally,

sham affidavits are used to avoid summary judgment. The affidavit constitutes a sham when the

affidavit directly contradicts the affiant’s deposition testimony. Cantu v. Peacher, 53 S.W.3d 5,

10 (Tex. App.—San Antonio 2001, pet. denied). A trial court may not consider statements

included within a sham affidavit. Cantu, 53 S.W.3d at 10-11.




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          It is well established that deposition testimony does not control over conflicting

testimony presented by affidavit. Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex.

1988). In Cantu, this court explained that the differences in witness affidavits and depositions, in

sham affidavit complaints, are generally “more a matter of degree and details than direct

contradiction.” An appellate evaluation requires an analysis of these differences. Cantu, 53

S.W.3d at 10.

          [W]e conclude that a court must examine the nature and extent of the differences
          in the facts asserted in the deposition and the affidavit. If the differences fall into
          the category of variations on a theme, consistent in the major allegations but with
          some variances of detail, this is grounds for impeachment, and not a vitiation of
          the later filed document. If, on the other hand, the subsequent affidavit clearly
          contradicts the witness’s earlier testimony involving the suit’s material points,
          without explanation, the affidavit must be disregarded and will not defeat the
          motion for summary judgment.

Id. at 10-11.

          In Cantu, the doctor never wavered in his conclusion that the delay in operating caused

the plaintiff harm. Id. at 11. Here, Gloria alleged the affidavits were in direct conflict with the

deposition testimony. We disagree. Neither Patricia, Guy, nor Morgan’s statements, contained

within their respective affidavits, changed their opinion that Frank was not competent to conduct

business or in full control of his mental faculties around the time of the will ceremony. Although

all three witnesses testified in both their depositions and their affidavits that they were not

present during the will signing on February 6th, the witnesses’ testimony remained unchanged

that Frank was incapable of making financial decisions or conducting business around this time

period.

          In her argument to the trial court, Gloria focused primarily on the fact that the three

witnesses, Patricia, Guy, and Morgan, were not present at the signing of the will. Additionally,

Gloria argued Frank was able to talk to Morgan and Guy about his vehicles and chores to be

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completed at his house, and that Frank recognized his family and friends. Even if true, these

facts do not change the overall tenor of the deposition testimony that Frank was not fully in

control of his mental faculties. Because circumstantial evidence around the time of the signing

of the will is relevant, especially the same week the will was signed, we look to their testimony

as relevant of Frank’s condition at the time of the will’s making. See Croucher, 660 S.W.2d at

57. We conclude the affidavits filed in response to the summary judgment motions are not sham

affidavits; and, therefore, the trial court erred in excluding this summary judgment evidence. We

sustain Michael’s issue and hold the trial court erred in striking the affidavits of Guy

McNenemy, Patricia McNenemy, and Ted Morgan.

                             MOTIONS FOR SUMMARY JUDGMENT
                              AS TO TESTAMENTARY CAPACITY

       Michael next argues Gloria did not prove she was entitled to summary judgment as a

matter of law and he did produce summary judgment evidence raising an issue of fact.

Therefore, Michael argues the trial court erred in granting Gloria’s motions for summary

judgment. Because we held the affidavits attached to Michael’s summary judgment response

were proper summary judgment evidence, our review of the trial court’s grant of summary

judgment must include this evidence.

                                       Standard of Review

       We review a trial court’s grant or denial of summary judgment de novo. Provident Life

& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To prevail on a traditional

motion for summary judgment, the moving party must prove that “there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of law on the issues

expressly set out in the motion.” TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690

S.W.2d 546, 548 (Tex. 1985). An appellate court must: (1) place the burden of showing that

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there is no genuine issue of material fact on the movant; (2) take all evidence favorable to the

non-movant as true; and (3) indulge every reasonable inference in favor of the non-movant.

Nixon, 690 S.W.2d at 548-49; Caldwell v. Curioni, 125 S.W.3d 784, 789 (Tex. App.—Dallas

2004, pet. denied) (citing M.D. Anderson Hosp. v. Tumor Inst. v. Willrich, 28 S.W.3d 22, 23-24

(Tex. 2000)). “The trial court’s duty is to determine if any genuine issues of material fact

remain, not to weigh the evidence or determine credibility.” Cummins v. Travis County Water

Control & Improvement Dist. No. 17, 175 S.W.3d 34, 53 (Tex. App.—Austin 2005, pet. denied).

       A no-evidence summary judgment is essentially a directed verdict granted before trial, to

which we apply a legal-sufficiency standard of review. King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 750-51 (Tex. 2003); Perdue v. Patten Corp., 142 S.W.3d 596, 603 (Tex. App.—

Austin 2004, no pet.). A no-evidence summary judgment will be sustained when (1) there is a

complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to

prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the

opposite of a vital fact. King Ranch, 118 S.W.3d at 751; TEX. R. CIV. P. 166a(i). The non-

movant, however, is not required to marshal its proof; he need only present some evidence of

probative value raising a fact issue about which reasonable minds could differ. TEX. R. CIV. P.

166a(i) cmt. (1997); Johnson v. Brewer & Pritchard, PC, 73 S.W.3d 193, 207 (Tex. 2002). We

view the evidence in the light most favorable to the non-movant, disregarding all contrary

evidence and inferences. Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711

(Tex. 1997)). More than a scintilla of supporting evidence exists if the evidence would allow

reasonable and fair-minded people to differ in their conclusions. Id. “Less than a scintilla of




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evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or

suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

                                             Analysis

       Generally, an affidavit attached to a will that is in substantial compliance with the

affidavit form set forth in section 59(a) of the Texas Probate Code will make the will self-

proved. See TEX. PROB. CODE ANN. § 59(b) (West 2011). Once the will has been admitted to

probate, the burden shifts to any will contestant to establish the testator lacked testamentary

capacity. In re Estate of Graham, 69 S.W.3d 598, 605 (Tex. App.—Corpus Christi 2001, no

pet.) (citing TEX. PROB. CODE ANN. § 88(b) (Vernon 1980)). However, if a contest is filed prior

to the will being admitted to probate, the burden of proving capacity remains with the movant.

Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex. 1983) (emphasis added).

       A testator must be of “sound mind,” which means having testamentary capacity at the

time the testator executes the will. TEX. PROB. CODE ANN. § 57 (West 2011). The testamentary

capacity requirement is satisfied upon proof the testator had “sufficient mental ability to

understand he is making a will, the effect of making a will, and the general nature and extent of

his property.” Long v. Long, 196 S.W.3d 460, 464 (Tex. App.—Dallas 2006, no pet.). The

testator must also be familiar with both his “next of kin and the natural objects of his bounty, the

claims upon them, and have sufficient memory to collect in his mind the elements of the business

transacted and hold them long enough to form a reasonable judgment about them.” Id.

       The question of testamentary capacity, however, must be determined in light of the day

and time the will was executed. Id. at 464-65; In re Estate of Graham, 69 S.W.3d 598, 606 (Tex.

App.—Corpus Christi 2001, no pet.) (citing Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968)). In

the present case, there is no direct testimony of acts, demeanor, or condition indicating that Frank



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lacked testamentary capacity when the will was signed. However, it has long been held that

evidence showing the testator’s incapacity at times other than the execution of the will, can be

used to show incapacity on the day in question if it “demonstrates that the condition persists and

‘has some probability of being the same condition which obtained at the time of the will’s

making.’” Croucher, 660 S.W.2d at 57 (quoting Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968));

see also Long, 196 S.W.3d at 465; In re Estate of Lynch, 350 S.W.3d 130, 136 (Tex. App.—San

Antonio 2011, pet. denied). The Croucher court established a two-prong test for a party alleging

lack of testamentary capacity: (1) does the evidence show a lack of testamentary capacity; and

(2) if so, was the evidence probative of the testator’s capacity, or lack thereof, at the time the will

was executed. Croucher, 660 S.W.2d at 57; Lynch, 350 S.W.3d 130, 136-37.

       More specifically, the testator’s mental condition may be inferred from lay and expert

witnesses’ observation of the testator’s conduct prior to or subsequent to the will’s execution.

Lee, 424 S.W.2d at 611; Storey v. Hayes, 448 S.W.2d 179, 181-82 (Tex. Civ. App.—San

Antonio 1969, writ dism’d). To mount a successful challenge to the testamentary capacity of a

testator, based on circumstantial evidence at times other than the execution of the will, the

movant must establish: “(1) that the evidence offered indicates a lack of testamentary capacity;

(2) that the evidence is probative of the testator’s capacity (or lack thereof) on the day the will

was executed; and (3) that the evidence provided is of a satisfactory and convincing character,

because probate will not be set aside on the basis of evidence that creates only a suspicion of

mental incapacity.” In re Estate of Graham, 69 S.W.3d 598, 606 (Tex. App.—Corpus Christi

2001, no pet.) (holding evidence that creates only suspicion of mental incapacity insufficient to

set aside trial court determination of competency).         Importantly, the number of witnesses




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supporting or contesting the question of testamentary capacity is irrelevant. The only question is

whether the testimony raised a question of fact. Id.

          Attached to her motions, Gloria presented testimony from several witnesses.             We

consider the partial deposition testimony of Catherine Fowlkes, Lisa Jones, Kyra Shahan,

Dominic Juliano, and Kelly Williamson as statements which are not hearsay under Texas Rules

of Evidence 801(e)(3) provision for a deposition taken in the same civil proceeding. See TEX. R.

EVID. 801(e)(3). We do not, however, consider the medical records attached to Gloria’s motions

for summary judgment because although they are properly a hearsay exception, they are not

proven up with a medical record’s affidavit in accordance with Rule 803(6). See TEX. R. EVID.

803(6).

          Catherine Fowlkes testified she was aware of Frank’s medical condition and understood

he requested that she prepare specific documents, including a new will, designation of Gloria as

sole beneficiary under his Merrill Lynch accounts, and a Pay On Death designation whereby

Frank’s Junction bank account, including the $5,000.00 monthly deposit from Merrill Lynch,

would transfer as a non-probate asset to Gloria. Fowlkes further testified she came to the

hospital on February 6, 2009 at Frank’s request. This was the first time Fowlkes spoke to Frank.

According to her testimony, she met with Frank, made notes as to how the documents were to be

prepared, left the hospital, and returned later that same day to formally execute the will.

          Lisa Jones, a notary and friend of Gloria’s for over twenty years, agreed to act as a notary

on the documents in question. She testified Frank appeared to have his full mental faculties and

she did not see any signs of diminished mental capacity. Kyra Shahan, who was at the nurses’

station when Jones requested she act as a witness testified, “[Frank] knew what he wanted. I sat

there and I watched him. He was very alert, he was very oriented, he was able to hold a



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conversation without a problem.” Similarly, Shahan’s fiancé, Dominic Juliano, also acted as a

witness at the will ceremony. Juliano described Frank as knowing “exactly what he owned,

exactly what he had and what he was leaving to Gloria.”           Finally, Kelly Williamson, an

employee of the hospital where Frank was receiving treatment, testified that Frank made eye

contact with her, he was not slumped over on the bed, and he was “definitely alert and knew

what he was doing.”

       Based on the evidence attached to her motions for summary judgment, we hold Gloria

met her initial burden of proving testamentary capacity in her motions for summary judgment.

Thus, the burden shifted to Michael to present evidence raising a fact issue as to Frank’s

testamentary capacity. Michael presented summary judgment evidence consisting of affidavits

from Patricia and Guy McNenemy and Ted Morgan. These affiants all testified to their long

history with Frank, his deteriorating health, and opined that he was not capable of conducting

business or in complete control of his mental faculties the first week of February, 2009.

       In addition to the affidavits, Michael relied on the testimony attached to Gloria’s motions.

He argued Fowlkes’ billing records revealed an overwhelming number of communications

regarding Frank’s will were with Gloria, not Frank. The testimony also raised questions as to

Frank’s ability to read the will on February 6th because Fowlkes read the will out loud as Frank

followed along with his finger and Frank did not notice or raise any concerns that the pronouns

contained within the will were all feminine. Additionally, the testimony revealed that under the

will, Frank bequeathed five percent of his estate to the Houston Police Officers’ Retirement

Union—when no such organization existed.

       Michael’s evidence shows Frank’s condition was declining and Frank was becoming

weaker throughout his hospital stay.     Three witnesses, all whom had known Frank for an



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extended period of time, testified that the three days preceding the signing of the will, Frank was

in and out of sleep, very confused, and not in a state of mind to conduct financial affairs.

Therefore, we hold Michael produced some evidence that Frank lacked testamentary capacity.

We hold there is sufficient summary judgment evidence to show the existence of a material fact

issue with respect to Frank’s testamentary capacity at the time of the will’s making.

Accordingly, we conclude the trial court erred in granting Gloria’s no-evidence and traditional

motions for summary judgments.

                                          CONCLUSION

       Based on the foregoing, we hold the trial court erred in striking Michael’s summary

judgment affidavits and in granting the summary judgments in favor of Gloria. Accordingly, we

reverse the trial court’s judgment and remand this matter for further proceedings in accordance

with this court’s opinion.

                                                  Marialyn Barnard, Justice




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