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In re Hormuth

Court of Appeals of Texas, Fourth District, San Antonio

May 3, 2017


         From the Probate Court No. 2, Bexar County, Texas Trial Court No. 2011PC4120 Honorable Tom Rickhoff, Judge Presiding

          Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice.


          Patricia O. Alvarez, Justice.


         This is the second appeal this court has considered relating to Barry Hormuth's application to probate a will allegedly executed by Billye M. Hormuth on October 13, 2010. In the first appeal, we reversed the trial court's order granting a motion in limine and dismissing Barry's application for lack of standing, and we remanded the cause to the trial court for further proceedings. See In re Estate of Hormuth, No. 04-14-00105-CV, 2014 WL 4438491, at *3 (Tex. App.-San Antonio Sept. 10, 2014, no pet.) (mem. op.) (Hormuth I). The sole issue presented in this second appeal is whether the trial court erred in dismissing Barry's application for want of prosecution. We affirm the trial court's order.


         Billye died on October 16, 2011 and was survived by her two children, Beverly Haddock and Barry. On October 31, 2011, the trial court admitted Billye's will, dated December 30, 1985, for probate and appointed Beverly as the independent executrix of the estate. In the 1985 will, Billye devised her estate to Barry and Beverly in equal shares. On January 24, 2012, the trial court approved the inventory filed by Beverly.

         On May 17, 2012, Barry filed an "Application to Probate Will and for Issuance of Letters Testamentary, " seeking to admit for probate a will allegedly executed by Billye on October 13, 2010. Barry also filed a pleading entitled "Petition, " in which he contested the probate of the 1985 will on the basis that it was revoked by the 2010 will. In the 2010 will, Billye revoked all prior wills and devised $10, 000 to Beverly, $10, 000 to Billye's two grandsons, and all remaining real and personal property to Barry.

         On October 22, 2013, Barry filed motions for traditional and no-evidence summary judgment on the claims raised in his contest to the 1985 will, and Beverly filed a response to those motions on November 26, 2013.[1] Also on November 26, 2013, Beverly filed a "Motion in Limine to Dismiss for Lack of Standing Plaintiff's Suit to Probate 2010 Will." The trial court granted the motion in limine and dismissed Barry's application to probate the 2010 will.[2] Barry appealed, and, as previously noted, this court reversed the trial court's order and remanded the cause for further proceedings. In re Estate of Hormuth, 2014 WL 4438491, at *3. On February 13, 2015, this court's mandate was issued in Hormuth I, restoring jurisdiction in the trial court.

         After this court's mandate issued, the appellate record does not contain any additional filings until December 22, 2015, when Beverly filed a motion to dismiss Barry's suit for want of prosecution. Beverly asserted the lawsuit should be dismissed because Barry had not prosecuted his claims with due diligence. Barry filed a response setting forth actions he claimed were taken after this court's mandate issued, including (1) his attorney sent a detailed settlement offer on April 25, 2015, to which no response was received; (2) his attorney filed corrected affidavits to his motion for summary judgment in July of 2015, and set a hearing for August 25, 2015; (3) his attorney agreed to reset the hearing to September 17, 2015 at the request of Beverly's attorney; and (4) Beverly's attorney requested the setting be dropped in late August so the parties could try to settle. After that request, Barry's response states he was considering his options with regard to scheduling a settlement conference when the motion to dismiss was filed on December 22, 2015.

         After a hearing, the trial court signed an order on January 22, 2016, granting the motion to dismiss. In its order, the trial court included the following findings:

The decedent's Last Will and Testament dated December 30, 1985 was admitted to probate on October 17, 2011.[3] This court approved the Inventory and List of Claims on January 24, 2012. The independent executor began implementing the terms of the will and property was distributed to Barry Hormuth from the estate in the form of a deed to real property and a partial distribution of $50, 000 on April 11, 2012. One month later, on May 17, 2012, after having already received a partial distribution of the estate, Plaintiff filed his original petition contesting the will which had been admitted to probate and seeking, instead, to probate a will dated October 13, 2010. Plaintiff took no action for more than a year after the filing of his suit. Plaintiff has never requested a trial setting during the four years this matter has been pending. Plaintiff has not engaged in any discovery except to propound a single request for disclosure. Plaintiff has not timely responded to discovery sent to him. A request for disclosure was propounded to plaintiff on June 21, 2012. Plaintiff did not respond until more than seven months later, on January 2, 2013. Plaintiff's only act of diligence has been to prosecute an appeal of one of this court's prior rulings. However, the mandate issued on February 13, 2015, and in the nearly 12 months since, Plaintiff has taken virtually no action to pursue his case other than to request a single resetting of a motion filed nearly two years ago. That setting was subsequently dropped.

         Based on the recited facts, the trial court concluded Barry had not prosecuted his claims with due diligence and dismissed the claims. Barry appeals, asserting the trial court erred in granting the motion to dismiss.[4]

         Standard ...

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