## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00054

- CV

IN THE ESTATE OF EVELYN JEWELL HARTWELL, DECEASED

On Appeal from the County Court at Law Fannin County, Texas Trial Court No. PR

- 2022

- 13127

Bef ore Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION Scott Hartwell appeals the trial court’s summary judgment finding he was outside of the statute of limitations when he attempted to probate Evel yn Jewell H artwell’s 2004 will

. Becau se the trial court was correct in entering summary judgment against Hartwell, we affirm the trial

cou rt’s judgment.
I. Factual and Procedural Background Evelyn died on July 20, 2012. Hartwell, Evelyn’s grandson, file d an applic ation to
pr obate Evelyn’s w ill on September 19, 2022. In his application, Hartwell alleged that , even though four years ha d elapsed since the date of Evelyn ’s death, administration w a s nevertheless
necessary to receive or recover pro perty due t o Evelyn ’s es tate. Evelyn’s will, dat ed July 30, 2004, bequeathed to Hartwell “a n option to purchase all the real property which constitutes [Evelyn ’ s] residential homestead (being the property known as

‘ The Homeplace, ’ and consisting of the house an d 14 1 acres) at a purchase pri c e of $60,000 .00, to be exercised within 6 months following the admission to probate of this Will .” Evelyn’s three childre n, Janie Herrington, John Hartwell, and Jerry Hartwell (the S iblings ) , fil ed an answer and

cross - petition f

o r declar a t ory judgme n t and determinati on of heirship. The answer claimed that no will belonging to Evelyn had been filed for probate within the four years after her death and that they were not made aware of the 20 0 4 w ill at any poi nt during the four yea r s foll owin g Ev el yn ’s deat h. As a resu lt, the S iblings pled the affirmative defense of limitations and sought judgment declaring that Hartwell was in default by failing to present the 2004 w ill for probate wi thin four years of Evelyn ’s death as re quired b y th e Texas Est ates Code

. See T EX
. E ST
. C ODE3

A NN
. § 256.003

. Because they claimed that Hartwell was not entitled to pro bate a will outside of the statute of limitations , they asked the trial court to deny his application and to declare that Evelyn’s estate should p ass through in testacy. Th e S iblings filed a tra diti onal moti on for summary judgment on their statute of limitation s defense

. Following a hearing, the trial court found tha t Hartwell was “in ‘default’ in the timel y filing of Evelyn Jewel l Hartwell’s will ” and th at he failed to “ use ‘due diligence’ in probatin g sa id w ill.” As a result, the trial court granted the S iblings’ traditional motion for summary judgment. On appeal, Hartwell claims that the tri al court erred in granting summary judgment because he produced evidence that showed h e exercise d rea sonable dil igenc e, under the circumstances, in attempting to probate the 2004 will.
I I. The Summary Judgment Evidence The sum mary judgment evidence estab lished that Hartwell took eighty

- eight

- year - old Evelyn to his attorney to prepar e a ne w will in 2 004

. The will g ave H artwell the six

- month purchase option on the 141

- acre tract , valued by the Fannin County Central Appraisal Dis trict at $1,033,290.00. Aft er Evelyn executed the 2004 will, s he told Hartwell to keep a copy and deliver one to J ohn (Hartwell’s f ather) after s he died. Evelyn told Hartwell that John would know what to do with the will. Hartwell did not inform his fat her abou t the will in 2004. Instead, he gave his fath er a copy of the will “a coup le [ of ] months after ” E velyn die d. The summary judgment evide nc e also showed that Hartwell knew the term s of the 2004 will in 2004 and kept a copy of the will in his po sse ssion from July 2004 until September 20 22,4

when he fil ed the will for probate. Und ispu ted evidence esta blished tha t Hartwell did no t inform Janie and Jerry about the existence of the 2004 w ill before J anuary 2022

. Hartwell testified t hat he and his fath er talked about the will o ff and on and that his father
was suppo sed to talk to Jan ie a nd Jerry about it. Har twell asked his father several times over the years if “they” had talked about it , but according to his father, they never had

. Hartwell stated
t hat, over th e next t en years, his father continued to “ make representations to [him ] a b out handling [his] g randmother’s will, but [he] ev entually discovered nothing was ever done regarding the will.” Hartwell stated that he “relied on” hi s “father’ s words , no t understanding the law or probate process, and did not probate the will becau s e ” he “ tr usted [his] father to do the right thing.” I n July 20 22 , Hartwell again asked his father if th ey ever talked about it and was again informed th at his father and hi s ot her siblings had not discussed the will. That month, Hartwell and his father g ave Jerry and J anie a copy of the will. No thing was ever said about the wi ll after that

. In 2022, Har t well determined “ that [his] father was not going to handle t he will .” He further claimed that , when he “talked with Jerry, John, and Janie about the wi ll, t hey told [him] they were a ll unaware o f the will and said that it was a n invalid will, which was the opposite of what Joh n had told [him] for ten (10) years .” Hartwell stated that , “ [ a ] bsent [his] father’s representations that he was handling the 200 4 W il l, [he] would have taken it upon [ him ] self to determine wh at was necessa ry to probate the 2004 W ill and handle [his] g randmother’s estate.”5

I II. Standard of Review “T h e grant of a trial court’s summary judgment is subject to de novo review by appell at e courts.” Brown v. CitiMortgage, Inc. , No. 06

- 14

- 00105

- CV, 2015 WL 2437519, at *2 (Tex. App.

— Texarkana May 2 2, 2015, no pet.) (mem . op. ) (citing Provident Li fe & Acciden t Ins. Co.
v. Knott , 128 S.W.3d 211, 215 (Tex. 2003)). “In making the required rev ie w, we deem as true all evidence wh ich is fav orable to the non movant, we indulg e every reasonable inference to be drawn from the evid ence, and we resolve any do ubts in the nonmovant’s favor.” Id. (citing Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 66 1 (Tex. 2005)). “To be entitled to tradition al summary judgme nt, a movant must establish that there is no
genu ine issue of material fact so that the movant is entitled to judgment as a matter of law.” Id. (citing T EX
. R. C IV
. P. 166a(c); Mann Frankfort St ein & Lipp Advisors, Inc. v. Field ing , 289 S .W.3d 844, 848 (T ex. 2009)). “Onc e the movant produces evidence e ntitling it to summar y judg ment, the burden shift s to the non movant to present evidence raising a genuine issue of material fact.” Id. (citing Wa lker v. Harris , 924 S.W.2d 375, 37 7 (Tex. 19 96)). “A defenda nt who conclusive ly negates a single essential el ement of a cause of a ction or conclusively establ ishes an aff

irmative defense is entitled to summary judgment on that claim.” Id. (citing
Frost N at’l Bank v. Fernandez , 315 S.W.3d 494, 508

– 09 (Tex. 2010)). IV. Analysis Sub ject to an exception not applica ble here, a will may not b e admitted to probate after the fo urth anniver sary of the testator’s death unless it is shown by proof that the appli ca nt for the probate of the will was not in de fault in failing to present the wi ll for probate on or before the fourth anniversary of the t estator’s death.6

T EX
. E ST
. C ODE A NN
. § 256.003(a) ; see Ferreira v. Butler , 575 S.W.3d 331, 334 (Tex. 2019)

. “Defaul t” means “failure to probate a will because of the absence of r easonable diligen ce on the part of the party offer ing the instrum ent.” In re Est

. of Allen , 407 S .W.3d 335, 3 39 (Tex. App.

— Eastland 2013, no pet.) (qu oting In re Est. of Perez , 324 S.W .3d 257 , 2 62 (Tex. App.

— El Paso 2010 , no pet .)) (construing predecessor to S ection 256.00 3) ; see In re Est

. of Williams , 111 S.W.3d 25 9 , 263 (Tex. App.

— Texarkana 2003, pet. denied) ( construing predecessor t o S ection 256.003 and finding that “not in default” langua ge held to due

- diligence standard)

. The S iblings attached ev idence to their motion for summa ry j udgment that established that (1) H artwell had been in possession of the w ill since 2004, (2) Evelyn died on July 20, 2012 , and (3) Hartwell did not file an application to probate the will until September 19 , 2022, w ell past the four

- year statute. Se e In re Est

. of Williams , 111 S.W.3d at 259 , 264 ( finding that son was in defau lt when he filed a will ten years after his mother’s death and had possession of th e will during those te n years). As a result, the bu rden shif te d t o Hartwell to present eviden ce rais ing a genuine issue of material fact on the issue of default. For purp o ses of our analysis, we take as true Hartwell’s statements that , “ [ u ] ntil this leg al dispute, [ he ] h ad a close relationship with [ his] fa th er an d [ he ] trusted and relied on [ his fathe r] as a family member ” and that, [ d] uring those times, [they] worked tog ether and had a close and
tru sting family relationship. ” Hartwell “ trusted [ his ] f ather , and based on [his] relations hip with [his father ] and [h is ] grand mothe r’s instructions, ” Hartwell believed th at he “could rely on [his father] regarding the handling of the 2004 Will

. ” We also take as true Hartwell’s statement that,

“ [ a ] bsent [his] father’s representations that he w as handling the 2004 Will, [ H a rtwell] woul d7

h ave taken it upon [him ] self to deter mine what was necessary to probate the 2004 Will and hand le [his] grandmother’s estate.” Based on those statements, Hartwell relies on Bu ckner v. Buckner , 81 5 S.W.2d 877 (Tex. App.

— Tyler 1991 , no pet. )

. I n B u ckner , the court determined that the parties , husband and wife, enjoyed a fiduciary relationship. Id

. at 880 (citing Wiley & Co. v. Prince , 21 Tex. 637 (1858);
B ohn v. Bohn , 455 S.W.2 d 401, 406 (Tex. App

. — Houston [1st Dist.] 1970, writ dism’d) (T ex as has long recognized confidential relationship be tween husband and wife) )

. Although wife

“ sought to ha ve her father

- in

- law’s will probated ” on “numerous occasions,” “ on each of those

occas ion s [ husband ] disap proved of probating that will and dissuade d h er fro m offering the will for probate by asserting that the property was ‘ [theirs] ’ and that no purpose woul d b e served by probate.” Id

. at 881. There was also evidence of husband’s “intent to indu ce ” wi fe not to probate the will

. Id

. at 882. Th at ev id e nce resul t ed in the court’s ruling that wife was not i n default in failing to probate her father

- in

- law’s w ill until five years following his death. Id

. at 880

– 82. In this case, Hartwell d id not p lead the existence of a fiduciary relationship with his f ather until he filed his response to the motion for sum mary judgment. See Ford v. Exxon Mobil Chem. Co

. , 23 5 S .W.3d 615 , 618 (Tex. 2007) (per curiam) ( “ Ford [ could not ] avoid constructive

n o tice by claiming fiduciary relationship

. . . as he neither plea de d n or prove d such a relationship in the trial court ” ). The S iblings objected to this newly pled claim

. “Wh en new claims are asserted in a non

- movant’s summary judgment response, the movant has two options: (1) object that the claims have not been ple d ; or ( 2) respo nd on the merits and try the issue by consen t.”8

Pathak v. Harris Cnty. Hosp. Dist

. , No. 14

- 08

- 0 0020

- CV , 2009 WL 972552 , at * 2 (Tex. App.

— Houston [14th Dist.] Mar. 24, 2009, n o pe t.) (mem. op.) (citing Via Net v. TIG Ins. Co

. , 211 S.W.3d 310 , 3 13 (Te x. 200 6) (per curiam) ). Because the S iblings obje cted to the late

- p led fiduciary relationship claim, that claim was “ not tried by consent. ” Id

. Buckner , which is premised on the hus b and’s fiduciary duty to hi s wife, is therefore not applicable h er e. There is also n o evidence that John made any misrepresentat ions to Har t well to attempt to induce him not to probate the will. In fact, according to Hartwel l, when he t alked to hi s fathe r about handling the will, John to ld Hartwell that he had done n ot hing wit h resp ect to the will. I t
was not until 2022 , when Hartwell ’ s father told him that he and his s ibli ng s had not discussed the will , t hat Hartwell decided that nothing was going to b e done about the will

. At most, the evidence shows that John ind ic ated that he w ould hand le the will but never did so.
In Brown v. Byr

d , the applicant claimed she was not in default because she relied on her uncle , many years her senior and a res pected mem ber of the community, to probate the decedent’s will. Brown v. B yrd , 512 S.W. 2d 753, 7 57 (Te x. App.

— Tyler 1974, no writ). The applic ant also knew, however, that her uncle was not a n attorney and that he had never offered a will for probate. The court re jecte d applicant’s reliance argument to avoid default. Id

. Ha rt well’s relian ce argume nt is much the same. Yet, over the course of t en years during which the will was neve r filed f

or probate, Hartwell took no action to probate the will.9

In short, t he t rial c ourt was presented with “no evidence of diligence

— and und i sp uted evidence of [ Hart well’s ] lack of reasonable diligenc e.” 1 Marsha ll v . Est

. of Freeman , No. 03

- 20

- 00449

- CV, 2022 WL 1273305, at *6 (Tex. App.

— Austin Apr. 29, 2022, no pet .) (mem. op.)

. Because Hartwell failed to present any evidence that raised a genuine issue of material fact as to his l ack of reasonable diligence, we find that the trial court did not err in granting the Siblings ’ motion for summary judgment. V . Conclusion
W e affirm th e trial court’s judgment.

Ch a rl es van Cle ef Ju stice Date Submitted: December 6, 2 023 Date De cide d: January 10 , 202 4

1 We further fin d that no material fact issues exist based on the differences in the parties’ testimony. For purposes of ou r ana lysis, we take as true all eviden c e favorable to Hartwell

.