Opinion issued December 20,=20
2007
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; =
&=
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bsp; &nb=
sp; &nbs=
p; In The =
Court of =
Appeals
For The
First District of =
Texas
NO. 01-06-00477-CV
__________
CURTIS =
S. COLE,=20
Appellant
V.
ERNESTINE HOGAN,=20
Appellees
On =
Appeal from=20
the Probate Court No. 2
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 349,751-401
MEMORANDUM=20
OPINION
<=
/SPAN>Curtis=20
S. Cole appeals the probate court=E2=80=99s order denying =
his application=20
for probate of lost will. Specifically, Cole challenges the =
legal=20
and factual sufficiency of the probate court=E2=80=99s implied =
findings. We=20
affirm.
Background
<=
/SPAN>Locellous=20
Kenney died August 2, =
2004. On=20
July 2, 2003, one year before he died, Kenney prepared a will, =
which named=20
Ernestine Hogan as its beneficiary. After Kenney=E2=80=99s death, =
the probate=20
court admitted the will to probate. A few months later, =
Cole filed=20
an application for probate of a lost will, claiming that Kenney =
left a=20
valid will dated July 16, 2004, which could not be produced =
because it had=20
been left with Bertha Davis, who had misplaced it. He also noted =
that, in=20
the will, Kenney left his entire estate to Cole.
&nbs=
p;In=20
February 2006, trial was held on Cole=E2=80=99s application. =
During Cole=E2=80=99s=20
case-in-chief, Russell Dawson and Rhonda F. Gills testified that=20
they signed the alleged lost will and that Kenney saw them =
sign it.=20
Gills testified that she did not read the will, but glanced over =
it, and=20
saw that Kenney left his house, property, and car to Cole. =
Additionally,=20
Cole testified that he typed the alleged lost will, was given the =
will by=20
Kenney, and took the will to Davis. An unsigned copy of the =
alleged will=20
was introduced at trial, and Cole recognized it as the will Kenney =
had=20
signed and which Cole had given to Davis. Cole also introduced =
Kenney=E2=80=99s=20
life insurance polices, which showed that Kenney had changed the =
policies=E2=80=99=20
beneficiary to Cole a few months=20
before his death. After Cole closed his case, Hogan renewed her =
position=20
that there is little or no evidence proving that the alleged will =
was=20
lost. The probate court signed an order denying Cole=E2=80=99s =
application for=20
probate of lost will. No findings of facts or conclusions =
of law=20
were filed. Cole now appeals.Legal and=20
Factual Sufficiency
<=
/SPAN>In=20
his sole issue, Cole challenges the legal and factual sufficiency =
of the=20
probate court=E2=80=99s implied findings. Specifically, Cole argues that =
he=20
satisfied the requirements of proving a lost will under Section 85 =
of the=20
Texas Probate Code as a matter of law, and the probate =
court=E2=80=99s implied=20
findings that he had not met his burden of proof were =
against the=20
great weight and preponderance of the evidence. See Tex. Prob. Code=20
Ann.=20
=C2=A7 85 (Vernon Supp.=20
2007).
Standard of=20
Review
&nbs=
p;In a nonjury =
trial, where no=20
findings of fact or conclusions of law are filed or requested, the =
trial=20
court=E2=80=99s judgment implies all findings necessary to support =
it, provided=20
the necessary findings are raised by the pleadings and supported =
by the=20
evidence. Whaley v. Cent. =
Church of=20
Christ of Pearland, 227 S.W.3d 228, =
230=E2=80=9331=20
(Tex. App.=E2=80=94Houston [1st Dist.] 2007, no pet.). However, =
because the record=20
on appeal contains a full reporter=E2=80=99s record, Cole may =
challenge the trial=20
court=E2=80=99s implied findings for legal and factual =
sufficiency, under the same=20
standards that govern challenges to a jury=E2=80=99s findings. =
See =
id. at 231. To =
prevail, he must=20
show that the trial court=E2=80=99s judgment cannot be sustained =
by any theory=20
raised by the evidence. Id.
=
When=20
a party attacks the legal sufficiency of an adverse finding on an =
issue on=20
which it has the burden of proof, the party must demonstrate on =
appeal=20
=E2=80=9Cthat the evidence=20
establishes, as a matter of law, all vital facts in support of the =
issue.=E2=80=9D=20
Dunn v.=20
Dunn, 177 S.W.3d 393, =
396=E2=80=9397=20
(Tex. App.=E2=80=94Houston [1st Dist.] 2005, pet. denied) (quoting =
Dow Chem. Co. v.=20
Francis, 46 S.W.3d 237, =
241 (Tex.=20
2001)). A matter-of-law challenge requires us first to examine the =
record=20
for evidence that supports the finding, while ignoring all =
evidence to the=20
contrary. Id. at =
397. If no evidence =
supports the=20
finding, we will then examine the entire record to determine if =
the=20
contrary proposition is established as a matter of law. =
Id. We will sustain =
the=20
matter-of-law challenge only if the contrary proposition is =
conclusively=20
established. Id.
=
Where=20
a party attacks the factual sufficiency of an adverse finding on =
an issue=20
on which he has the burden of proof, he must demonstrate on appeal =
that=20
the adverse finding is against the great weight and preponderance =
of the=20
evidence. Dow =
Chem., 46 S.W.3d at 242. =
We must=20
consider and weigh all of the evidence and set aside a verdict =
only if the=20
evidence is so weak or if the finding is so against the great =
weight and=20
preponderance of the evidence that it is clearly wrong and unjust. =
Id. In doing so, we =
must=20
=E2=80=9Cdetail the =
evidence relevant=20
to the issue=E2=80=9D=20
and=20
=E2=80=9Cstate in what =
regard the=20
contrary evidence greatly outweighs the evidence in support of the =
verdict.=E2=80=9D=20
Id. (quoting =
Pool v. Ford Motor =
Co., 715 S.W.2d 629, =
635 (Tex.=20
1986)).
Proof =
of Written=20
Will Not Produced in Court
<=
/SPAN>A proponent of a =
written=20
will which cannot be produced in court must prove (1) the =
requirements for=20
a valid written will to be admitted to probate, (2) the cause of =
the=20
written will=E2=80=99s non-production and that such cause =
satisfies the court that=20
the will cannot be produced through reasonable diligence, and (3) =
the=20
contents of the will substantially by a credible witness who has =
read the=20
will, heard it read, or can identify a copy of the will. Tex. Prob. Code Ann. =
=C2=A7 =
85; In re Estate of =
Jones, 197 S.W.3d 894, 898 (Tex. App.=E2=80=94Beaumont 2006, =
pet.=20
denied).
<=
/SPAN>We=20
begin by considering the sufficiency of the evidence pertaining to =
the=20
cause of the alleged =
will=E2=80=99s=20
non-production. In her deposition, Davis testified that Cole =
brought her a=20
handwritten statement to be typed. Davis described the statement =
as a=20
piece of paper with some pictures on it. She stated that she read =
the=20
document and that it had Kenney=E2=80=99s, Gill=E2=80=99s, and =
Dawson=E2=80=99s signatures on it.=20
She elaborated that the statement was written on the =
torn-off top=20
of a greeting card, and was just large enough to contain the =
following=20
sentence: =E2=80=9CBeing of sound mind, this is my last testimony. =
I want=20
everything to be left to Curtis Cole.=E2=80=9D
<=
/SPAN>Davis=20
stated that Cole gave her the statement May 5, 2004, the same day =
that she=20
was hospitalized after suffering a heart attack. Davis remained at =
the=20
hospital for approximately 17 days, during which time Kenney died. =
During=20
this period, she left the statement lying on her desk. When she =
returned,=20
the statement was missing. Davis testified that Cole first asked =
her about=20
the will about one week after she had returned from the hospital. =
When she=20
could not find the will, she told Cole that she was sure she had =
handed it=20
to him. Davis testified that she did not know what happened to the =
statement, but that many people, including interns, were in and =
out while=20
she was gone who could be responsible. She also stated that she =
thinks=20
someone may have moved the statement because it was written on a =
torn-off=20
piece of a greeting card. Davis testified that she felt =
responsible for=20
having lost the will, and she repeatedly looked for it, but was =
unable to=20
find it. When asked if Cole had ever showed her a copy of the will =
he=20
allegedly brought to her, Davis replied =
=E2=80=9Cno.=E2=80=9D
<=
/SPAN>Cole=20
testified that he typed the July 2004 will for Kenney, which =
Kenney gave=20
to Cole. Cole stated that he then took the will to Davis and that, =
around=20
September or October of 2004, Davis told him that she misplaced =
it. Cole=20
testified that he understood that Davis did everything she could =
to locate=20
the will. He identified an unsigned, three-page, typewritten =
document to a=20
be copy of the will which he had given to Davis, in the same =
condition as=20
it was in July 2004. Additionally, Cole stated that he and Kenney =
had=20
given Davis a greeting card when she was in the hospital, but =
could not=20
explain why Davis said she was given a greeting card which =
included=20
=E2=80=9Ceverybody=E2=80=99s=E2=80=9D signature.
<=
/SPAN>On=20
appeal, the parties disagree over the meaning of Davis=E2=80=99s =
testimony. Cole=20
contends that Davis testified about two distinct =
documents=E2=80=94the July 16,=20
2004 will and an unrelated greeting card ![3DFootnote](3D"")
=E2=80=94and accuses Hogan of =
intentionally trying=20
to confuse Davis by not directly asking her if the greeting card =
was the=20
same document as the July 2004 will. Hogan, however, =
asserts that=20
the evidence shows that Cole and Davis disagreed as to which document =
was=20
lost.
=
In=20
re Estate of Capps involved a =
similar=20
situation, where a witness was asked to make copies of the =
original will=20
by the decedent. 154 S.W.3d 242, =
244 (Tex.=20
App.=E2=80=94Texarkana 2005, no pet.). At trial, the witness =
identified a document=20
introduced by the proponent to be a copy of the will that she had =
been=20
given. Id. There was also =
testimony=20
that the decedent had kept the original will, but that it had not =
been=20
located, despite a thorough search. Id. =
On appeal, the =
court held=20
that, because the evidence was sufficient to support that the =
document=20
produced was an accurate copy of the will, which had not been =
found=20
despite a diligent search, a sufficient explanation of the cause =
of the=20
will=E2=80=99s non-production was established. Id.=20
=
=
Here,=20
Davis did not identify the copy of the alleged will produced at =
trial to=20
be the same document that Cole had given her. Furthermore, the =
document=20
that Cole produced at trial was typewritten, three pages long, =
and =
dated July=20
16, 2004,=20
whereas the document described by Davis was given to her =
on May 5, 2004, and =
was=20
handwritten on=20
a single page torn from a greeting card. Therefore, because =
Cole=20
failed to present evidence that Davis had possession of the =
alleged lost=20
will, he did not prove the cause of the will=E2=80=99s =
non-production as a matter of =
law, nor are=20
the probate court=E2=80=99s implied findings that Cole failed to =
prove the cause=20
of the will=E2=80=99s non-production against the great =
weight and=20
preponderance of the evidence. We hold that the evidence is =
legally and=20
factually sufficient to support the trial court=E2=80=99s implied =
finding that=20
Cole did not satisfy the requirements of proving a lost will under =
Section=20
85. Therefore, the trial court did not err in denying Cole=E2=80=99s =
application for=20
probate of a=20
lost will.
=
Cole=E2=80=99s=20
sole issue is overruled.
Conclusion
We affirm the order of the trial =
court.
&=
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; =
=
&=
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sp; &nbs=
p; =
; George=20
C. Hanks, Jr.
=
&=
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p; =
; Justice
=
Panel=20
consists of Justices Taft, Hanks,=20
Higley. |