Appeal from the Probate Court No. 3 Harris County, Texas
Trial Court Cause No. 441962
consists of Justices Christopher, Busby, and Jewell
(Christopher, J., concurring) (Jewell, J., concurring).
Brett Busby, Justice
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
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.
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.
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.
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.
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.
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
probate court granted appellees' hybrid no-evidence and
traditional summary judgment motion and dismissed the
application for probate of the will. Linda appealed.
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. Resolution of both issues turns on whether
Norman's conduct, in addition to Linda's conduct, is
relevant to the default analysis.
Standard of review and applicable law
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 ...