law-probate |
PENDING TEXAS SUPREME COURT CASES DECISIONS: PROBATE MATTERS
07-1026
LOUIS M. DITTA, GUARDIAN OF THE ESTATE OF DORIS L. CONTE, AN INCAPACITATED PERSON v. SUSAN
C. CONTE AND JOSEPH P. CONTE, JR.; from Harris County; 1st district (01‑05‑00603‑CV, ___ SW3d ___,
08‑31‑07)(probate court case, authority to remove trustee)
[Note: This case has been set for oral argument at 9:00 a.m., January 13, 2009.]
Time allotted to argue: 20/20 minutes
RECENT TEXAS SUPREME COURT DECISIONS: PROBATE MATTERS
A.G. Edwards & Sons, Inc. v. Beyer, No. 05-0580, 235 SW3d 704 (Tex. Sep. 28, 2007)(Wainwright)
(financial services, breach of contract, joint account with right of survivorship, Texas Probate Code,
attorney's fees)
A.G. EDWARDS & SONS, INC. v. MARIA ALICIA BEYER; from El Paso County; 8th district
(08-03-00495-CV, 170 S.W.3d 684, 06/30/05)
PETITIONS IN PROBATE LAW APPEALS DENIED BY TEX. 2008
08-0558
DAVID WAYNE SMITH AND DANA L. MAYOR v. MARY LINDA MCCALL; from Harris County; 14th district
(14-07-00032-CV, 252 SW3d 663, 04-03-08)(divorce and life insurance, probate court)
08-0466
SHARON SWANK BACKHUS, BENJAMIN F. SWANK, III, SHANNON LEA WERCHAN PICKERING, SWANK
TURNER BACKHUS, BENJAMIN FONTAINE SWANK, IV, CHRISTIAN HARRIS SWANK AND SUZANNE SWANK
PORTER v. HAVEN LYNN WERCHAN WISNOSKI AND SHANE ALAN WERCHAN; from Grimes County; 1st district
(01-07-00041-CV, ___ SW3d ___, 03-13-08, pet denied)
Backhus v. Werchan Wisnoski (Tex.App. - Houston [1st Dist.] Mar. 13, 2008, pet. denied Aug 2008)(Nuchia)
(probate law, construction of will, real estate law, partition of land)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
This is an appeal from a declaratory judgment action. Appellants sought a judicial declaration that the partition
of certain lands inherited by life tenants, Sharon Swank Bacchus and Benjamin F. Swank, III ("B. F."), was valid
and binding on all parties.
08-0138
ESTATE OF JOHN A. TEINERT DECEASED, LAURANCE KRIEGEL, DESCENDENT, HEIR TO THE ESTATE;
from Coryell County; 10th district (10-07-00297-CV, 251 SW3d 66, 01-09-08, pet. denied Aug 1, 2008)
as redrafted; petitioner's motion for partial summary judgment denied (probate matter)(Because the trial court
had no jurisdiction to take any further action with regard to Teinert’s Estate, this Court has jurisdiction only to
dismiss the appeal.)
08-0138
ESTATE OF JOHN A. TEINERT DECEASED, LAURANCE KRIEGEL, DESCENDENT, HEIR TO THE ESTATE;
from Coryell County; 10th district (10-07-00297-CV, 251 SW3d 66, 01-09-08, pet. denied Aug 1, 2008)
as redrafted; petitioner's motion for partial summary judgment denied (probate matter)(Because the trial court
had no jurisdiction to take any further action with regard to Teinert’s Estate, this Court has jurisdiction only to
dismiss the appeal.)
08-0463
KAY FRANCES WALKER, JUANITA FAYE ANDERSON-COPIER, MONA WALKER HURST, MARCIA WALKER
HURST, MARTHA DIANE WALKER, DWAYNE WALKER, JOHN WALKER AND SHARON WALKER ATWELL v.
NORMA LEA BEASLEY; from Dallas County; 5th district (05-07-00976-CV, 250 SW3d 212, 04-17-08, pet.
denied 2008) (probate, amended inventory)
08-0128
IN THE MATTER OF THE ESTATE OF ROSEZELLER WILLICH, DECEASED; from Henderson County; 12th
district (12-06-00409-CV, ___ SW3d ___, 12-21-07, pet. denied 2008) motion to amend dismissed as moot
(probate, undue influence and Rosezellar lacked testamentary intent or capacity)
Appellant Robert Lewis Willich appeals an order admitting the will of Rosezellar Willich to probate as a muniment
of title. On appeal, Willich presents seven issues. We modify the order and affirm as modified.
08-0212
THE ESTATE OF STEPHEN ELLIS ALEXANDER; from McLennan County; 10th district (10-06-00360-CV, 250
SW3d 461, 01-30-08, pet. denied 2008)(probate, will or intestate, motion for new trial)
This appeal involves the question of whether the decedent Stephen Ellis Alexander made a nuncupative will
before his death or died intestate. The trial court determined that Stephen died intestate. Appellant Ben C.
Lambeth contends in four issues that: (1) the court abused its discretion by denying his oral request for a
continuance; (2) the court erred by granting a summary judgment motion filed by Appellees Cheryl and Deborah
Alexander, Stephen’s sisters, because genuine issues of material fact remain on each element of Ben’s claim
that Stephen made a nuncupative will; (3) the court abused its discretion by denying Ben’s motion for new trial
premised on the denial of his continuance request; and (4) the court abused its discretion by denying his motion
for new trial premised on the summary judgment ruling. We will affirm.
08-0350
STEPHANIE DUKES, ET AL. v. PHILIP JOHNSON/ALAN RITCHIE ARCHITECTS, P.C., ET AL.; from Tarrant
County; 2nd district (02-07-00095-CV, ___ SW3d ___, 03-27-08, pet. denied Jun 2008)(probate, issue of duty,
voluntary undertaking, professional code of ethics, summary judgment, premises liability)
08-0350
STEPHANIE DUKES, ET AL. v. PHILIP JOHNSON/ALAN RITCHIE ARCHITECTS, P.C., ET AL.; from Tarrant
County; 2nd district (02-07-00095-CV, ___ SW3d ___, 03-27-08, pet. denied Jun 2008)(probate, issue of duty,
voluntary undertaking, professional code of ethics, summary judgment, premises liability)
08-0087 ESTATE OF HAZEL DELORES HATCHER, DECEASED; from Collin County; 5th district
(05-06-01109-CV, ___ SW3d ___, 12-11-07, pet. denied June 2008)(probate mattter, will contest)
In this will contest case, Beverly Hatcher Christensen appeals the trial court's order admitting the will of her
sister, Hazel Delores Hatcher, to probate subject to the family settlement agreement. Because we conclude
Christensen has voluntarily accepted benefits of the order she attacks on appeal, we dismiss the appeal as
moot.
08-0207
JUNELLA ROSIE HEMPEL CARROLL v. CLAUDE A. MERTZ AND CHARLIE H. RIPPER, INDEPENDENT
EXECUTORS OF THE ESTATE OF EWALD HEMPEL, DECEASED; from Fayette County; 3rd district (03-05-
00540-CV, ___ S.W.3d ___, 11-01-07, pet. denied 2008) (probate, will contest)
This is an appeal from a summary judgment in a will contest. Appellees, Claude A. Mertz and Charlie H. Ripper,
are the independent co-executors of the estate of Ewald Hempel under Hempel's 1990 will (the Estate). Persons
claiming to be beneficiaries under an earlier joint and reciprocal will executed by Mr. Hempel and his wife in
1960 filed suit to set aside the probate of Hempel's 1990 will and subsequent codicils and to obtain a
declaratory judgment affirming their inheritance rights under the1960 will and a 1969 codicil. Appellant, Junella
Rosie Hempel Carroll, intervened, alleging that she was Hempel's sole child and heir and seeking to void all of
his wills and codicils for insane delusion or, alternatively, to inherit claimed lapsed gifts under the 1960 will and
1969 codicil. The district court granted the Estate's motion for traditional and no-evidence summary judgment
and ordered that Carroll take nothing on her claims. For the reasons explained below, we affirm the judgment of
the district court.
08-0136
JOHN KAPPUS v. SANDRA L. KAPPUS; from Anderson County; 12th district
(12-06-00233-CV, 242 SW3d 182, 11-30-07, pet. denied April 2008)(probate dispute, independent executor of
estate and trustee of testamentary trust)
Sandra Kappus, ex-wife of the deceased, James W. Kappus, complains of certain trial court rulings entered in
the probate of James’s estate. In four issues, Sandra claims the trial court erred in its division of the estate’s
primary asset and by failing to remove John Kappus as independent executor of the estate and as trustee of a
testamentary trust created by James’s will. We affirm in part and reverse and render in part.
08-0145
CURTIS S. COLE v. ERNESTINE HOGAN; from Harris County; 1st district
(01-06-00477-CV, ___ SW3d ___, 12-20-07, pet. denied April 2008) (probate case, lost will)
08-0078
DAVID DIAZ MONTEZ v. MARYLINDA RIOS, INDIVIDUALLY AND AS TRUSTEE OF THE KANDO CHILDREN'S
TRUST AND KANDO CHILDREN'S TRUST NO. 2, AND LAURIE PATRICIA MONTEZ, INDIVIDUALLY AS
TRUSTEE OF THE KANDO CHILDREN'S TRUST; from Bexar County; 4th district
(04-07-00089-CV, ___ SW3d ___, 12-12-07, pet. denied April 2008)(probate matter, wills and trusts, res
judicata doctrine, due process)
David Diaz Montez appeals the probate court's order declaring that his claims are barred by res judicata and
that he forfeited his rights under certain wills and trusts. Montez asserts three issues on appeal contending: (1)
his claims are not barred by res judicata; (2) he did not forfeit his rights under the wills and trusts; and (3) any
forfeiture of his rights under the wills and trusts violated his due process. We affirm the trial court's judgment.
08-0176
RODGER DALE CASTLEBERRY v. ELAINE CASTLEBERRY BIGBEE, INDIVIDUALLY, AND AS INDEPENDENT
EXECUTRIX OF MAY GLEN CASTLEBERRY, DECEASED, AND TRUSTEE OF THE CASTLEBERRY FAMILY
IRREVOCABLE LIFE INSURANCE TRUST, THE CASTLEBERRY MARITAL TRUSTS, AND THE CASTLEBERRY
BY-PASS TRUST; from Comal County; 13th district (13-06-00551-CV, ___ S.W.3d ___, 01-17-08,
pet. denied April 2008) (probate law)
This is a probate matter concerning the compensation of an executrix of the estate of Don and May Glen
Castleberry (the "Estate") and a trustee of the Castleberry trusts. By three issues, appellant, Elaine Castleberry
Bigbee, asserts that the trial court's judgment should be reversed because: (1) the district court erred in
construing the intent of May Glen's will, and Bigbee is entitled to statutory compensation as a matter of law; (2)
May Glen's will is ambiguous if the district court's interpretation of the will is adopted; and (3) the parties' Rule
11 Agreement and the district court's September 28, 2005 order do not preclude Bigbee's right to
compensation. We reverse and remand for proceedings consistent with this opinion
07-0965
PENNY TRESA MCMENNAMY v. CURTIS MCMENNAMY; from Hunt County; 5th district
(05-06-01566-CV, ___ SW3d ___, 10-10-07, pet. denied Feb. 2008)(collateral attack on probate court
judgment)
Penny Tresa McMennamy appeals the trial court's order dismissing her lawsuit against Curtis McMennamy. In
four issues, appellant contends the trial court erred by granting appellee's motion for new trial and dismissing
her lawsuit for lack of subject matter jurisdiction. We affirm the trial court's dismissal order.
Appellant's allegations in her petition show she is attempting to collaterally attack the county court's probate
judgment by seeking a declaration that the will was obtained by fraud, the title to the property did not vest in
appellee through the will because it was no longer part of Jones's estate at the time of her death, and by
seeking construction of the will. Thus, appellant is challenging matters relating to the probate and administration
of Jones's estate. Consequently, under the facts and circumstances of this case, we conclude the district court
properly determined it did not have jurisdiction to consider appellant's allegations. We overrule appellant's third
issue. Having determined the trial court lacked subject matter jurisdiction over this case, we need not consider
appellant's remaining issues.
07-0965 PENNY TRESA MCMENNAMY v. CURTIS MCMENNAMY; from Hunt County; 5th district
(05-06-01566-CV, ___ SW3d ___, 10-10-07, pet. denied Feb. 2008)(collateral attack on probate court
judgment)