Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ferreira v. Butler

Court of Appeals of Texas, Fourteenth District

September 19, 2017

LINDA FERREIRA, Appellant
v.
DOUGLAS W. BUTLER AND DEBRA L. BUTLER, Appellees

         On Appeal from the Probate Court No. 3 Harris County, Texas Trial Court Cause No. 441962

          Panel consists of Justices Christopher, Busby, and Jewell (Christopher, J., concurring) (Jewell, J., concurring).

          MAJORITY OPINION

          J. Brett Busby, Justice

         Appellant Linda Ferreira, in her capacity as the executrix of Norman Ferreira's estate, applied to probate the will of Norman's deceased wife, Patricia Ann Hill, nine years after Patricia's death. The appellees-Patricia's children from a previous marriage-contested the application, asserting that Linda did not meet her burden to probate the will. The Texas Estates Code provides that a will may not be probated more than four years after the death of a testator "unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will." Tex. Est. Code Ann. § 256.003(a) (West Supp. 2016).

         After considering summary judgment motions filed by both parties, the probate court granted appellees' motion for summary judgment and dismissed Linda's application to probate the will. On appeal, Linda argues that she was not in default because she applied to probate the will approximately one month after discovering it. Appellees argue that the default inquiry should include Norman rather than Linda, and thus the summary judgment should be affirmed because there is no evidence Norman was not in default.

         We conclude that (1) the default inquiry should include Norman because Linda filed the application in her capacity as executrix of Norman's estate, and (2) Linda failed to offer summary judgment evidence raising a genuine issue of material fact that Norman was not in default in failing to present the will. We therefore affirm the summary judgment rejecting Linda's application.

         Background

         Patricia Ann Hill died on January 12, 2006. Patricia was survived by her husband, Norman Ferreira. Patricia's children from a prior marriage, appellees Douglas and Debra Butler, also survived her. In her will, Patricia left all of her property to Norman. Norman did not probate Patricia's will before he died on February 22, 2015.

         Norman was previously married to appellant Linda Ferreira, but they divorced before Norman married Patricia. Norman's will devised real property and the residue of his estate to Linda, and she was appointed as independent executrix for Norman's estate. As Linda was going through documents in Norman's home, she found Patricia's will. About one month later, she applied to probate the will as a muniment of title in her capacity as executrix of Norman's estate. Appellees contested the application.

         Appellees filed a hybrid no-evidence and traditional motion for summary judgment seeking to dismiss the application for probate of Patricia's will. Appellees' motion asserted there was no evidence the applicant was not in default in failing to present the will on or before the fourth anniversary of the testator's death, as required by section 256.003(a) of the Texas Estates Code. Linda responded with evidence that she discovered Patricia's will in July 2015 and offered it for probate as a muniment of title one month later.

         Linda also filed a cross-motion for summary judgment, arguing that this evidence conclusively proved she met her burden to admit Patricia's will to probate. In response, appellees argued that because Linda appeared in her capacity as the representative of Norman's estate, the default inquiry should focus on Norman rather than Linda, and there was no evidence showing Norman did not default in probating Patricia's will.

         The probate court granted appellees' hybrid no-evidence and traditional summary judgment motion and dismissed the application for probate of the will. Linda appealed.

         Analysis

         Linda's appeal presents two issues. First, Linda argues the probate court erred in granting appellees' no-evidence and traditional motion for summary judgment. Second, Linda argues the probate court erred in denying her cross-motion for summary judgment.[1] Resolution of both issues turns on whether Norman's conduct, in addition to Linda's conduct, is relevant to the default analysis.

         I. Standard of review and applicable law

         We review a trial court's grant of summary judgment de novo. Lyda Swinerton Builders, Inc. v. Cathay Bank, 409 S.W.3d 221, 229 (Tex. App.-Houston [14th Dist.] 2013, pet. denied). We consider all the evidence in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). When a party moves for summary judgment on both no-evidence and traditional grounds, we address the no-evidence grounds first. Burnett v. Carnes Funeral Home, Inc., No. 14-12-01159-CV, 2014 WL 2601567, at *3 (Tex. App.- Houston [14th Dist.] June 10, 2014, no pet.) (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). When both parties move for summary judgment and the trial court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.