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In re Estate of Ripley

Court of Appeals of Texas, Fourth District, San Antonio

September 4, 2019

IN THE ESTATE OF Patricia M. RIPLEY, Deceased

          From the Probate Court No. 2, Bexar County, Texas Trial Court No. 2018-PC-1990 Honorable Tom Rickhoff, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice

          OPINION

          SANDEE BRYAN MARION, CHIEF JUSTICE.

         John Ripley appeals the probate court's judgment declaring himself and his two siblings Robert Ripley and Mary Guzman to be the heirs of their mother Patricia M. Ripley, deceased. The sole issue presented on appeal is whether the probate court erred in denying John's "Motion for Directed Verdict on the affirmative defenses of limitations, laches, waiver, and estoppel." We affirm the trial court's judgment.

         Background

         Patricia died intestate on February 26, 2008. On June 4, 2018, Robert and Mary filed an application to determine heirship. The application stated there had been no administration of Patricia's estate and sought to have John, Robert, and Mary declared to be Patricia's heirs.

         On August 31, 2018, John filed amended special exceptions asserting the application was barred by limitations. Robert and Mary filed a response asserting no express limitations period exists for bringing an heirship action. On October 26, 2018, the probate court signed an order denying John's amended special exceptions.

         On November 19, 2018, Robert and Mary filed a motion for leave to present alternate evidence of heirship. Specifically, they sought leave to present an expert report from a forensic genealogist in lieu of the testimony of two disinterested witnesses because locating peers of Patricia who could testify was exceedingly difficult given that they would be approximately one hundred years old if they were still alive. On December 7, 2018, the probate court signed an order granting Robert's and Mary's motion.

         On December 10, 2018, the probate court held a bench trial on the application. Robert and Mary presented the forensic genealogist's affidavit as evidence that Robert, Mary, and John were Patricia's sole heirs. John then moved for a "directed verdict" on the basis that the application was barred by the residual four-year limitations period. At the conclusion of the bench trial, the probate court signed the judgment declaring John, Robert, and Mary to be Patricia's heirs. John appeals.

         Standard of Review

         "[T]he proper motion to make after the plaintiff rests in a bench trial is a motion for judgment," as opposed to a motion for directed verdict. Bledsoe Dodge, L.L.C. v. Kuberski, 279 S.W.3d 839, 841 (Tex. App.-Dallas 2009, no pet.); see also Grounds v. Tolar Indep. Sch. Dist., 856 S.W.2d 417, 422 n.4 (Tex. 1993) ("Technically, the use of the term 'directed verdict' in a bench trial is incorrect because there is no jury to direct. In this situation, the correct procedure is for the defendant, at the close of the plaintiff's evidence, to make a 'motion for judgment.'"). Accordingly, we construe John's motion as a motion for judgment. See Bledsoe Dodge, L.L.C., 279 S.W.3d at 841. A trial court errs in denying a defendant's motion for judgment if the evidence conclusively establishes a defense to the plaintiff's claim. Clifford v. McCall-Gruesen, No. 02-13-00105-CV, 2014 WL 5409085, at *3 (Tex. App.-Fort Worth Oct. 23, 2014, no pet.) (mem. op.); see also Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000) (noting directed verdict for a defendant is proper if "the evidence conclusively establishes a defense to the plaintiff's cause of action").

         Issues Presented

         In reviewing a motion for judgment, just like a motion for directed verdict, we are limited to the grounds stated in the motion. See Batra v. Clark, 110 S.W.3d 126, 128 (Tex. App.-Houston [1st Dist.] 2003, no pet.); Cooper v. Lyon Fin. Servs., Inc., 65 S.W.3d 197, 207 (Tex. App.- Houston [14th Dist.] 2001, no pet.). During the bench trial, the only defense asserted in John's verbal motion for judgment was the defense of limitations. Accordingly, we limit our review of John's issue to his limitations defense, and we do not consider the arguments raised in John's brief regarding the ...


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