                                   NO. 07-00-0449-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                   OCTOBER 10, 2001


                          ______________________________


           IN RE THE ESTATE OF MAMIE HOLMES WILLIAMS, DECEASED

                        _________________________________

                    FROM THE COUNTY COURT AT LAW NO. 3
                   AND PROBATE COURT OF BRAZORIA COUNTY;

               NO. 20,456; HONORABLE JAMES BLACKSTOCK, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Appellants Freddie Chizer and Larry Chizer challenge the summary judgment

denying their contest of the order admitting the holographic will of Mamie Holmes Williams,

deceased, to probate as a muniment of title. By four issues, they contend (1) the evidence

proffered demonstrates that the testatrix executed the handwritten document without the

necessary testamentary intent to dispose of her property at her death, (2) the evidence

proffered at trial demonstrates that the testatrix did not have the testamentary capacity to

make a will at the time the will was executed, (3) where fraud is apparent, res judicata
cannot be used to sustain fraud, and (4) the trial court should not have granted summary

judgment where an order was not signed on a motion for new trial and the court’s oral

rendition, docket sheet entry, and letters to the attorneys of record, grant a new trial. Based

upon the rationale expressed herein, we affirm.


       Mamie Holmes Williams died on February 17, 1994, survived by her cousins,

Raymond Chizer, Freddie Chizer, and Larry Chizer, appellee Tommy Bradshaw, devisee

and legatee under her holographic will dated May 2, 1977, and several others. Following

her death, on September 27, 1994, Bradshaw filed an application to probate the

holographic will of Mamie Holmes Williams as a muniment of title and the will was admitted

to probate by order signed October 13, 1994. On February 20, 1998, Raymond Chizer filed

a contest to the probate of the holographic will which was denied by order signed February

4, 2000.1 Then, on February 18, 2000, Freddie Chizer and Larry Chizer filed pleadings

entitled “petition in intervention” in the original probate cause without leave of court. In

addition to a general denial, Bradshaw’s response alleged the affirmative defenses of

limitations and res judicata, which were also presented as grounds in his motion for

summary judgment granted on July 21, 2000.




        1
      According to the briefs, the trial court orally indicated that it would grant a new trial;
however, according to the clerk’s record, an order granting a new trial was never filed.

                                              2
                                STANDARD OF REVIEW


      In reviewing a summary judgment, this Court must apply the standards established

in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985):


      1. The movant for summary judgment has the burden of showing that there
      is no genuine issue of material fact and that it is entitled to judgment as a
      matter of law.

      2. In deciding whether there is a disputed material fact issue precluding
      summary judgment, evidence favorable to the non-movant will be taken as
      true.

      3. Every reasonable inference must be indulged in favor of the non-movant
      and any doubts resolved in its favor.


For a party to prevail on a motion for summary judgment, he must conclusively establish the

absence of any genuine question of material fact and that he is entitled to judgment as a

matter of law. Tex. R. Civ. P. 166a(c). A movant must either prove all essential elements

of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one

essential element of the non-movant's cause of action. Randall's Food Markets, Inc. v.

Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to

summary judgment, the non-movant has the burden to respond to the motion for summary

judgment and present to the trial court any issues that would preclude summary judgment.

City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Barbouti

v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996, writ denied).

When a summary judgment does not specify or state the grounds relied on, the summary

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judgment will be affirmed on appeal if any of the grounds presented in the motion are

meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Insurance Co. of N. Am.

v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ). Issues

which the non-movant contends preclude the granting of a summary judgment must be

expressly presented to the trial court by written answer or other written response to the

motion and not by mere reference to summary judgment evidence. McConnell v. Southside

School Dist., 858 S.W.2d 337, 341 (Tex. 1993). Issues not expressly presented to the trial

court in writing shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P.

166a(c). Further, all theories in support of or in opposition to a motion for summary

judgment must be presented in writing to the trial court. Casso v. Brand, 776 S.W.2d 551,

553 (Tex. 1989).


      We will consider the Chizers’ issues in a logical rather than sequential order. By

their first two issues, they contend the evidence was insufficient to demonstrate

testamentary intention or capacity to make a will. However, in response to Bradshaw’s

motion for summary judgment, they presented two issues in opposition, to-wit:


      (1) Is the order for new trial for intervenors which was not personally signed
      by the judge a valid order which would allow a final hearing on this probate
      matter.

       (2) Does res judicata bar relitigation in this suit to set aside probate contest.




                                              4
Because the Chizers did not present the issues of testamentary intention or capacity to

make a will to the trial court in writing, they cannot be considered on appeal as grounds for

reversal. See Tex. R. Civ. P. 166a(c); Clear Creek Basin Authority, 589 S.W.2d at 678.

Issues one and two are overruled.


       By issue four, the Chizers contend the trial court should not have granted summary

judgment because before the motion for summary judgment was filed and heard by the trial

court, the trial court had orally indicated that he would grant a new trial.2 Notwithstanding

their assertion of the issue, the Chizers did not present or file any summary judgment

evidence supporting the “new trial” issue in opposition to the motion for summary judgment.

When the motion for summary judgment was heard and the judgment signed, no evidence

was “on file at the time of the hearing” as required by Rule 166a(c) of the Texas Rules of

Civil Procedure, nor was any other evidence supporting their contention attached to the

response to Bradshaw’s motion for summary judgment. See generally, Feldman v. Kohler

Co., 918 S.W.2d 615, 625 n.10 (Tex.App.–El Paso 1996, writ denied) (refusing to consider

on appeal documents that were not attached to the motion as summary judgment evidence).

Accordingly, issue four is overruled.




       2
        As was noted in Ehrhardt v. Ehrhardt, 364 S.W.2d 471, 472 (Tex.Civ.App.--
Houston 1963, writ ref’d n.r.e.), here also, there is little in the clerk’s record that is helpful
to this Court.

                                               5
      By their third issue, the Chizers assert that res judicata does not bar their action

because the defense cannot be used “to sustain fraud based upon the maximum [sic] that

no man may benefit from his own wrong.” We disagree. Like issues one and two, this

issue does not comport with the issue presented to the trial court in writing and cannot be

considered here as grounds for reversal. Tex. R. Civ. P. 166a(c); Clear Creek Basin

Authority, 589 S.W.2d at 678.


       Furthermore, the clerk’s record includes the orders of the trial court admitting the will

to probate signed October 13, 1994, and an order in the same cause number signed

February 4, 2000, denying the contest filed by Raymond Chizer. Because the Chizers were

attacking a solemn judgment of a court, they had the burden of proving the invalidity of the

order admitting the will to probate as a muniment of title, which included their claims of

fraud to avoid the defense of res judicata. Ehrhardt v. Ehrhardt, 364 S.W.2d 471, 473

(Tex.Civ.App.--Houston 1963, writ ref’d n.r.e.). In Clear Creek Basin Authority, 589 S.W.2d

at 678, the Court, in discussing summary judgment practice, held that:


       •      Pleadings do not constitute summary judgment proof.

       •      The written answer or response to the motion must fairly apprise the
              movant and the court of the issues the non-movant contends should
              defeat the motion.

       •      The non-movant must expressly present to the trial court any reasons
              seeking to avoid movant’s entitlement, such as those set out in rules
              93 and 94, and he must present summary judgment proof when
              necessary to establish a fact issue.


                                               6
(Emphasis added). Notwithstanding their claim of fraud to avoid the affirmative defense of

res judicata, the Chizers did not present any summary judgment evidence to create a fact

question on fraud. Issue three is overruled.


      Moreover, the judgment of the trial court must also be affirmed because the Chizers

did not present a general assignment that the trial court erred in granting summary

judgment. Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). Res judicata

and statute of limitations were presented as the grounds for the motion for summary

judgment; however, the Chizers did not challenge the limitations ground in the trial court

and, accordingly, it cannot be asserted on appeal as grounds for reversal. Tex. R. Civ. P.

166a(c), Clear Creek Basis Authority, 589 S.W.2d at 678. As in Napier, this judgment must

be affirmed for the reason that it may have been based on limitations, which was not

specifically challenged, nor was a general issue presented on appeal challenging summary

judgment. 461 S.W.2d at 121.


      Accordingly, the judgment of the trial court is affirmed.


                                                   Don H. Reavis
                                                     Justice


Do not publish.




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