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Affirmed and Memorandum Opinion filed April 19,=20 2007.

 

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-05-00998-CV

____________

 

MARVIN V.=20 FLETCHER, = Appellant

 

V.

 

WILLIE T.=20 HARRIS, = Appellee

 

 

On Appeal from the = Probate Court No. 4

Harris County, = Texas

Trial Court Cause = No. 339,982-401

 

 

M E M O R=20 A N D U M   O P I N I O N

Appellant,=20 Marvin Fletcher, received letters testamentary after presenting a = will=20 (the AFletcher=20 will@) to the=20 probate court when his uncle died in 2003.  Appellee, Willie = Harris,=20 contested the will Marvin Fletcher presented and presented a = second will=20 (the AHarris=20 will@) that had=20 been executed two days later than the Fletcher will.  The = trial court=20 held a bench trial and determined that the Harris will was the = most=20 current will and that it had revoked all previous wills, was not a = forgery, and was not produced by fraud, duress, or undue = influence. =20 The trial court issued Harris letters testamentary and recognized = Harris=20 as executrix of the estate.  Marvin appeals raising seven = issues,=20 four challenging the legal and factual sufficiency of the trial=20 court=3Ds findings=20 of fact and conclusions of law and three challenging the trial=20 court=3Ds refusal=20 to award Marvin attorney=3Ds=20 fees.  We affirm.

I. =20 Background

The=20 decedent, Marvia Fletcher (AMarvia@), died=20 May 31, 2003, at the age of eighty four.  He had no = children. =20 Upon his death, his nephew and namesake, Marvin Fletcher = (AMarvin@),=20 tendered a will executed October 25, 2002.  The trial court = issued=20 Marvin letters testamentary, and he began winding up the = estate. =20 Willie Harris, Marvia=3Ds=20 goddaughter, then filed a will executed October 27, 2002 along = with a=20 motion for new trial, application to probate the second will, and = contest=20 to the first will.

Marvia was=20 married to Gertie Fletcher, who predeceased him.  According = to=20 Marvin, after Gertie=3Ds death,=20 Marvia suggested he should make a will, and so Marvin had his = attorney=20 draw up a will.  Marvin drove Marvia to this = attorney=3Ds office=20 on October 25, 2002, and Marvia executed the will devising his = entire=20 estate to Marvin.  However, two witnesses and a notary = affirmed they=20 witnessed Marvia execute a will devising his entire estate to = Harris just=20 two days later.  Upon Marvia=3Ds death,=20 these wills became the subject of this suit.

Testimony=20 at trial was short.  Harris presented the notary, two = witnesses, and=20 a handwriting expert to attest to the Harris will=3Ds=20 authenticity.  The notary and witnesses also testified that, = from=20 what they observed, there was no fraud, duress, or undue influence = exerted=20 upon Marvia.  Marvin testified that the will was forged based = upon=20 his personal knowledge of his uncle=3Ds=20 handwriting and further testified that there must have been some = fraud,=20 duress, or undue influence exerted.  Marvin also presented = expert=20 handwriting testimony that Marvia did not sign the Harris=20 will.

At the end=20 of trial, both parties asked the trial court to award them=20 attorney=3Ds fees out=20 of the estate.  Harris argued that Marvin could not receive = his fees=20 because he had not filed a pleading asking for them and had not = proved=20 good faith.  The probate court found that the Harris will was = valid,=20 not a forgery, and not a product of fraud, duress, or undue=20 influence.  The probate court further refused any award of=20 attorney=3Ds fees to=20 Marvin. 

Marvin=20 timely filed appeal and now raises the following issues: (1) the = evidence=20 was factually insufficient to support the trial court=3Ds finding=20 that the Harris will was not a forgery, (2) the evidence was = factually=20 insufficient to support the trial court=3Ds finding=20 of no undue influence,[1]=20 (3) the evidence was legally insufficient to support the = conclusion of law=20 that the Harris will was not a forgery, (4) the evidence was = legally=20 insufficient to support the conclusion of law that the Harris will = was not=20 a product of undue influence, (5) the evidence was factually = insufficient=20 to support the finding that Marvin failed to plead and prove good = faith=20 for attorney=3Ds fees,=20 (6) the trial court erred in concluding Marvin had no proof or = pleading of=20 good faith, and (7) the probate court erred in refusing to award = Marvin=20 attorney=3Ds fees for=20 his contest of the Harris will. 

II.=20 Analysis

A.     =20 Evidence Supporting Findings of Fact and Conclusions of Law = Regarding the=20 Execution and Validity of the Harris Will

We will=20 consolidate Marvin=3Ds issues=20 for the sake of clarity.  We will first address his issues = related to=20 the forgery finding.  We will then address Marvin=3Ds issues=20 related to undue influence.

A probate = court=3Ds findings are = reviewable for=20 legal and factual sufficiency by the same standards applied in = reviewing=20 evidence supporting a jury=3Ds answer.  = Catalina v.=20 Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).  When=20 determining whether legally sufficient evidence supports the = finding under=20 review, we must consider evidence favorable to the finding if a = reasonable=20 fact finder could consider it and disregard evidence contrary to = the=20 finding unless a reasonable fact finder could not disregard = it. =20 City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. = 2005).  In=20 addition, Awhen the=20 circumstantial evidence of a vital fact is meager, a reviewing = court must=20 consider not just favorable but all the circumstantial evidence, = and=20 competing inferences as well.@ =20 Id. at 814.  A legal sufficiency point may be = sustained=20 only when the record discloses: (1) a complete absence of evidence = of a=20 vital fact, (2) the court is barred by rules of law or of evidence = from=20 giving weight to the only evidence offered to prove a vital fact, = (3) the=20 evidence offered to prove a vital fact is no more than a mere = scintilla,=20 or (4) the evidence established conclusively the opposite of the = vital=20 fact.  Juliette Fowler Homes, Inc. v. Welch Assoc., = 793 S.W.2d=20 660, 666 n.9 (Tex. 1990).  The final test for legal = sufficiency is=20 whether the evidence at trial would enable reasonable and = fair-minded=20 people to reach the verdict under review.  City of = Keller, 168=20 S.W.3d at 827. 

In=20 reviewing a factual sufficiency point, we consider all the = evidence=20 supporting and contradicting the finding.  Plas‑Tex, = Inc. v. U.S.=20 Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).  We set = aside the=20 verdict only if the finding is so contrary to the overwhelming = weight of=20 the evidence as to be clearly wrong and unjust or if the result = shocks the=20 conscience or clearly indicates bias.  See Pool v. = Ford=20 Motor Corp., 715 S.W.2d 629, 735 (Tex. 1986); Cain v. = Bain, 709=20 S.W.2d 175, 176 (Tex. 1986).

1.      =20 Forgery

Marvin=20 challenges the legal and factual sufficiency of the probate=20 court=3Ds=20 determination that the Harris will was not a forgery.  The = evidence=20 that the Harris will is not a forgery was two-fold.  First, = witnesses=20 to the signing testified that they actually saw Marvia sign the=20 will.  Second, a handwriting expert testified that the = signature on=20 the Harris will was consistent with exemplars of = Marvia=3Ds=20 signature.  Therefore, the evidence was legally sufficient to = support=20 the finding of no forgery.

Marvin=20 presented personal testimony and expert testimony on the issue of=20 forgery.  He testified that the signature was not his=20 uncle=3Ds, and his=20 expert testified that the signature was not consistent with = exemplars of=20 Marvia=3Ds=20 signature.  However, this is nothing more than competing=20 testimony.  Marvin=3Ds expert=20 did not personally inspect the relevant documentsConly=20 copies.  Also, Marvin=3Ds expert=20 compared the signature on the Harris will with only four of=20 Marvia=3Ds known=20 signatures.  It was the probate court=3Ds duty to=20 discern what testimony was credible and should be accepted.  = The=20 probate court did so, and we will not substitute our judgment for = its.[2] =20 We overrule Marvin=3Ds issues=20 related to forgery.

2.      =20 Undue Influence

As with=20 his forgery issues, Marvin challenges the legal and factual = sufficiency of=20 the evidence to support the probate court=3Ds findings=20 of fact and conclusions on law.[3] =20 The evidence is both legally and factually=20 sufficient.

To prove=20 undue influence, a will contestant must show: (1) the existence = and=20 exertion of an influence, (2) the effective operation of such = influence so=20 as to subvert or overpower the mind of the testator at the time of = the=20 execution of the testament, and (3) the execution of a testament = that the=20 maker thereof would not have executed but for such = influence. =20 Hoffman v. Tex. Commerce Bank Nat=3Dl = Assoc., 846 S.W.2d 336, 340 (Tex. App.CHouston=20 [14th Dist.] 1992, writ denied).  Undue influence involves an = extended course of dealings and circumstances and may be proven by = direct=20 or circumstantial evidence.  See Watson v. Dingler, = 831 S.W.2d=20 834, 837 (Tex. App.CHouston=20 [14th Dist.] 1992, writ denied).  It is therefore proper to = consider=20 evidence of all relevant matters that occurred within a reasonable = time=20 before or after execution of the will as tending to prove the = existence of=20 undue influence at the time of execution.  See = id.  All=20 material facts may be considered, including: the circumstances = attending=20 execution of the instrument; the relationship between the maker = and the=20 beneficiaries; the motive, character, and conduct of those = benefitted by=20 the instrument; the words and acts of all attending parties; the = physical=20 and mental condition of the maker at the time of the execution of = the=20 instrument; the maker=3Ds age,=20 weakness, infirmity, and dependency on or subjection to the = control of the=20 beneficiary; and the improvidence of the transaction by reason of = unjust,=20 unreasonable, or unnatural disposition.  = Id.

In arguing=20 that the evidence is insufficient to support the probate = court=3Ds findings=20 on undue influence, Marvin focuses primarily on the surrounding=20 circumstances of the Harris will=3Ds=20 execution.  Specifically, he notes that the execution = ceremony took=20 place at Harris=3Ds home,=20 the witnesses and notary were Harris=3Ds=20 neighbors, the notary failed to secure Marvia=3Ds=20 signature in the notary log,[4]=20 Harris participated in the preparation and execution of the will, = and=20 Marvia=3Ds=20 signature appeared inconsistent between the two wills.[5] =20 Marvin also highlights that Harris did not testify at trial, = although it=20 is unclear how this affects the outcome of the appeal.  The = probate=20 court considered these factors and concluded that the Harris will = was not=20 produced as a result of or undue influence, and the evidence is = both=20 legally and factually sufficient to support that=20 conclusion.

Harris=3Ds evidence=20 directly addressed Marvin=3Ds=20 arguments insofar as she presented the notary and two = witnesses. =20 There was little testimony regarding what role Harris played in = the=20 preparation or execution of the will; in fact, it is entirely = unclear who=20 prepared the will.  At most, it appears Harris asked the = notary and=20 witnesses to be part of the ceremony and that she was = present.  The=20 notary and two witnesses testified Marvia appeared alert, knew = what he was=20 doing, and desired to execute the will.  The notary explained = that he=20 asked to see Marvia=3Ds=20 driver=3Ds license,=20 and thus did not ask him to sign the notary log.  Although = Marvin=20 claims the absence of Marvia=3Ds=20 signature in the notary log is suspect because the two witnesses = signed=20 the notary log, it was within the probate court=3Ds province=20 to weigh the  credibility of that testimony.  =

Ultimately,=20 the probate court had the testimony of three eyewitnesses, who = stated that=20 Marvia acted of his own free will, versus Marvin=3Ds theory=20 that the surrounding circumstances of the execution led to the = undeniable=20 conclusion that Marvia did not sign of his own free will.  = Marvin=20 produced no testimony or evidence other than his personal opinion = to prove=20 undue influence.  The probate court resolved the conflicting=20 evidence, and the evidence supports those findings and = conclusions. =20 Therefore, we overrule appellant=3Ds issues=20 regarding undue influence.

B.     =20 Attorney=3Ds=20 Fees

In his=20 final three issues, Marvin argues the probate court erred by = failing to=20 award him attorney=3Ds fees out=20 of the estate for the will contest.  Harris counters that the = probate=20 court acted properly pursuant to Texas Probate Code section 243 = because=20 Marvin neither pleaded nor proved good faith. We agree. =

Section=20 243 of the Probate Code provides:

When any person = designated as=20 executor in a will or an alleged will, or as administrator with = the will=20 or alleged will annexed, defends it or prosecutes any proceeding = in=20 good faith, and with just cause, for the purpose of having the = will or=20 alleged will admitted to probate, whether successful or not, he = shall be=20 allowed out of the estate his necessary expenses and = disbursements,=20 including reasonable attorney=3Ds fees, in such = proceedings.=20 When any person designated as a devisee, legatee, or beneficiary = in a will=20 or an alleged will, or as administrator with the will or alleged = will=20 annexed, defends it or prosecutes any proceeding in good = faith, and=20 with just cause, for the purpose of having the will or alleged = will=20 admitted to probate, whether successful or not, he may be allowed = out of=20 the estate his necessary expenses and disbursements, including = reasonable=20 attorney=3Ds fees, in such=20 proceedings.

 

Tex.=20 Prob. Code Ann. = ' = 243=20 (Vernon 2003) (emphasis added).  There is no dispute among = the=20 parties that this section would apply to Marvin provided he had = complied=20 with the good-faith requirement.  At trial, Harris stipulated = that=20 Marvin=3Ds=20 attorney=3Ds fees=20 were reasonable and necessary and took issue only with the fact = that=20 Marvin failed to plead or prove good faith.

A suit for=20 attorney=3Ds fees=20 must be brought in the original will contest.  See Wich v. = Fleming, 652 S.W.2d 353, 355 (Tex. 1983).  Additionally, = there=20 must be a finding of good faith before attorney=3Ds fees may=20 be recovered.  See Alldridge v. Spell, 774 S.W.2d 707, = 711=20 (Tex. App.CTexarkana=20 1989, no writ) (citing Huff v. Huff, 132 Tex. 540, 124 = S.W.2d 327,=20 330 (1939)).  Neither of those two requirements were met = according to=20 our record.  Marvin never requested attorney=3Ds fees for=20 his good faith efforts; indeed, the only pleading containing a = request=20 from Marvin for attorney=3Ds fees we=20 have in our record is in his motion to dismiss Harris=3Ds will=20 contest.  At the end of the bench trial, Harris noted that = Marvin had=20 neither pleaded nor proved good faith.  Marvin did not = contest that=20 assertion, did not seek to amend his pleadings,[6]=20 and did not seek a finding of good faith.  Thus, the trial = court did=20 not err in failing to award attorney=3Ds fees,=20 and we overrule these issues.

We affirm=20 the probate court=3Ds=20 judgment.

 

 

 

 

/s/     =20 Leslie B. Yates

Justice

 

 

 

Judgment=20 rendered and Memorandum Opinion filed April 19, 2007.

Panel=20 consists of Justices Yates, Anderson, and Hudson.


[1]  Marvin lists fraud, duress, and = undue=20 influence in his statement of the issues.  However, the = argument=20 section of his brief contains citation and argument relevant only = to undue=20 influence.  Therefore, we limit our evaluation of the issue = to undue=20 influence.

[2]  Marvin asks us to take judicial = notice that=20 Marvia=3Ds purported signature on the Harris will = could not=20 be a genuine signature, or alternatively, could not be procured in = the=20 absence of undue influence.  Under Texas Rule of Evidence = 201(b), a=20 judicially-noticed fact must be generally known in the community = or=20 capable of accurate and ready determination by resort to sources = whose=20 accuracy cannot be reasonably questioned.  The facts Marvin = asks us=20 to declare do not meet these requirements.

[3]  Within this argument, Marvin also = alludes=20 to an argument that Harris did not have standing to contest the = Fletcher=20 will.  However, he has not provided citation to any authority = to=20 support that contention and considering that Harris was = propounding a will=20 under which she was the sole beneficiary, that argument has no = basis in=20 law or fact.  See Tex.=20 Prob. Code Ann. ' 3(r) (Vernon 2003); Logan v. = Thomason, 202=20 S.W.2d 212, 215 (Tex. 1947).

[4]  According to Marvin, many of = these problems=20 tend to prove that there is nothing to actually show Marvia was = the one=20 who signed the will.  However, those arguments go to forgery, = which=20 we have previously addressed.

[5]  Marvin asks us, once again, to = take=20 judicial notice that the signature on the Harris will could not be = genuine.  However, as we have previously stated, Marvin has = not=20 satisfied the requirements of Texas Rule of Evidence=20 201(b).

[6]  See Zapalac v. Cain, 39 = S.W.3d 414,=20 418 (Tex. App.CHouston [1st Dist.] 2001, no pet.) = (discussing a=20 party=3Ds ability to amend probate pleadings for = the=20 purpose of requesting attorney=3Ds=20 fees).

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