In the

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

Before Stevens, C.J., van Cleef and Rambin, JJ.

Memorandum Opinion by Justice van Cleef
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MEMORANDUM OPINION

Scott Hartwell appeals the trial court’s summary judgment finding he was outside of the 

statute of limitations when he attempted to probate Evelyn Jewell Hartwell’s 2004 will. Because 

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

court’s judgment.

I. Factual and Procedural Background

Evelyn died on July 20, 2012. Hartwell, Evelyn’s grandson, filed an application to 

probate Evelyn’s will on September 19, 2022. In his application, Hartwell alleged that, even 

though four years had elapsed since the date of Evelyn’s death, administration was nevertheless

necessary to receive or recover property due to Evelyn’s estate. 

Evelyn’s will, dated July 30, 2004, bequeathed to Hartwell “an 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 and 141 acres) at a purchase price of $60,000.00, 

to be exercised within 6 months following the admission to probate of this Will.” Evelyn’s three 

children, Janie Herrington, John Hartwell, and Jerry Hartwell (the Siblings), filed an answer and

cross-petition for declaratory judgment and determination 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 2004 will at any point during the four years following 

Evelyn’s death. As a result, the Siblings pled the affirmative defense of limitations and sought 

judgment declaring that Hartwell was in default by failing to present the 2004 will for probate 

within four years of Evelyn’s death as required by the Texas Estates Code. See TEX. EST. CODE
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ANN. § 256.003. Because they claimed that Hartwell was not entitled to probate 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 pass through intestacy.

The Siblings filed a traditional motion for summary judgment on their statute of 

limitations defense. Following a hearing, the trial court found that Hartwell was “in ‘default’ in 

the timely filing of Evelyn Jewell Hartwell’s will” and that he failed to “use ‘due diligence’ in 

probating said will.” As a result, the trial court granted the Siblings’ traditional motion for 

summary judgment. On appeal, Hartwell claims that the trial court erred in granting summary 

judgment because he produced evidence that showed he exercised reasonable diligence, under 

the circumstances, in attempting to probate the 2004 will.

II. The Summary Judgment Evidence

The summary judgment evidence established that Hartwell took eighty-eight-year-old 

Evelyn to his attorney to prepare a new will in 2004. The will gave Hartwell the six-month

purchase option on the 141-acre tract, valued by the Fannin County Central Appraisal District at 

$1,033,290.00. After Evelyn executed the 2004 will, she told Hartwell to keep a copy and 

deliver one to John (Hartwell’s father) after she died. Evelyn told Hartwell that John would 

know what to do with the will. Hartwell did not inform his father about the will in 2004. 

Instead, he gave his father a copy of the will “a couple [of] months after” Evelyn died. 

The summary judgment evidence also showed that Hartwell knew the terms of the 2004 

will in 2004 and kept a copy of the will in his possession from July 2004 until September 2022, 
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when he filed the will for probate. Undisputed evidence established that Hartwell did not inform 

Janie and Jerry about the existence of the 2004 will before January 2022.

Hartwell testified that he and his father talked about the will off and on and that his father 

was supposed to talk to Janie and Jerry about it. Hartwell asked his father several times over the 

years if “they” had talked about it, but according to his father, they never had. Hartwell stated 

that, over the next ten years, his father continued to “make representations to [him] about 

handling [his] grandmother’s will, but [he] eventually discovered nothing was ever done 

regarding the will.” Hartwell stated that he “relied on” his “father’s words, not understanding 

the law or probate process, and did not probate the will because” he “trusted [his] father to do the 

right thing.” In July 2022, Hartwell again asked his father if they ever talked about it and was 

again informed that his father and his other siblings had not discussed the will. That month, 

Hartwell and his father gave Jerry and Janie a copy of the will. Nothing was ever said about the 

will after that.

In 2022, Hartwell determined “that [his] father was not going to handle the will.” He 

further claimed that, when he “talked with Jerry, John, and Janie about the will, they told [him] 

they were all unaware of the will and said that it was an invalid will, which was the opposite of 

what John had told [him] for ten (10) years.” Hartwell stated that, “[a]bsent [his] father’s 

representations that he was handling the 2004 Will, [he] would have taken it upon [him]self to 

determine what was necessary to probate the 2004 Will and handle [his] grandmother’s estate.” 
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III. Standard of Review

“The grant of a trial court’s summary judgment is subject to de novo review by appellate 

courts.” Brown v. CitiMortgage, Inc., No. 06-14-00105-CV, 2015 WL 2437519, at *2 (Tex. 

App.—Texarkana May 22, 2015, no pet.) (mem. op.) (citing Provident Life & Accident Ins. Co. 

v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). “In making the required review, we deem as true all 

evidence which is favorable to the nonmovant, we indulge every reasonable inference to be 

drawn from the evidence, and we resolve any doubts in the nonmovant’s favor.” Id. (citing 

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)).

“To be entitled to traditional summary judgment, a movant must establish that there is no 

genuine issue of material fact so that the movant is entitled to judgment as a matter of law.” Id.

(citing TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 

S.W.3d 844, 848 (Tex. 2009)). “Once the movant produces evidence entitling it to summary 

judgment, the burden shifts to the nonmovant to present evidence raising a genuine issue of 

material fact.” Id. (citing Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996)). “A defendant 

who conclusively negates a single essential element of a cause of action or conclusively 

establishes an affirmative defense is entitled to summary judgment on that claim.” Id. (citing 

Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010)).

IV. Analysis

Subject to an exception not applicable here, 

a will may not be admitted to probate after the fourth anniversary of the testator’s 

death 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 for probate on or before the fourth 

anniversary of the testator’s death.
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TEX. EST. CODE ANN. § 256.003(a); see Ferreira v. Butler, 575 S.W.3d 331, 334 (Tex. 2019).

“Default” means “failure to probate a will because of the absence of reasonable diligence on the 

part of the party offering the instrument.” In re Est. of Allen, 407 S.W.3d 335, 339 (Tex. App.—

Eastland 2013, no pet.) (quoting In re Est. of Perez, 324 S.W.3d 257, 262 (Tex. App.—El Paso 

2010, no pet.)) (construing predecessor to Section 256.003); see In re Est. of Williams, 111 

S.W.3d 259, 263 (Tex. App.—Texarkana 2003, pet. denied) (construing predecessor to Section 

256.003 and finding that “not in default” language held to due-diligence standard). 

The Siblings attached evidence to their motion for summary judgment that established 

that (1) Hartwell had been in possession of the will 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, well 

past the four-year statute. See In re Est. of Williams, 111 S.W.3d at 259, 264 (finding that son 

was in default when he filed a will ten years after his mother’s death and had possession of the 

will during those ten years). As a result, the burden shifted to Hartwell to present evidence 

raising a genuine issue of material fact on the issue of default. 

For purposes of our analysis, we take as true Hartwell’s statements that, “[u]ntil this legal 

dispute, [he] had a close relationship with [his] father and [he] trusted and relied on [his father]

as a family member” and that, [d]uring those times, [they] worked together and had a close and 

trusting family relationship.” Hartwell “trusted [his] father, and based on [his] relationship with 

[his father] and [his] grandmother’s instructions,” Hartwell believed that 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 was handling the 2004 Will, [Hartwell] would 
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have taken it upon [him]self to determine what was necessary to probate the 2004 Will and 

handle [his] grandmother’s estate.” 

Based on those statements, Hartwell relies on Buckner v. Buckner, 815 S.W.2d 877 (Tex. 

App.—Tyler 1991, no pet.). In Buckner, 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); 

Bohn v. Bohn, 455 S.W.2d 401, 406 (Tex. App.—Houston [1st Dist.] 1970, writ dism’d) (Texas 

has long recognized confidential relationship between husband and wife)). Although wife 

“sought to have her father-in-law’s will probated” on “numerous occasions,” “on each of those 

occasions [husband] disapproved of probating that will and dissuaded her from offering the will 

for probate by asserting that the property was ‘[theirs]’ and that no purpose would be served by 

probate.” Id. at 881. There was also evidence of husband’s “intent to induce” wife not to

probate the will. Id. at 882. That evidence resulted in the court’s ruling that wife was not in 

default in failing to probate her father-in-law’s will until five years following his death. Id. at 

880–82.

In this case, Hartwell did not plead the existence of a fiduciary relationship with his

father until he filed his response to the motion for summary judgment. See Ford v. Exxon Mobil 

Chem. Co., 235 S.W.3d 615, 618 (Tex. 2007) (per curiam) (“Ford [could not] avoid constructive 

notice by claiming fiduciary relationship. . . as he neither pleaded nor proved such a relationship 

in the trial court”). The Siblings objected to this newly pled claim. “When 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 pled; or (2) respond on the merits and try the issue by consent.” 
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Pathak v. Harris Cnty. Hosp. Dist., No. 14-08-00020-CV, 2009 WL 972552, at *2 (Tex. App.—

Houston [14th Dist.] Mar. 24, 2009, no pet.) (mem. op.) (citing Via Net v. TIG Ins. Co., 211 

S.W.3d 310, 313 (Tex. 2006) (per curiam)). Because the Siblings objected to the late-pled

fiduciary relationship claim, that claim was “not tried by consent.” Id. Buckner, which is 

premised on the husband’s fiduciary duty to his wife, is therefore not applicable here.

There is also no evidence that John made any misrepresentations to Hartwell to attempt to 

induce him not to probate the will. In fact, according to Hartwell, when he talked to his father

about handling the will, John told Hartwell that he had done nothing with respect to the will. It

was not until 2022, when Hartwell’s father told him that he and his siblings had not discussed the 

will, that Hartwell decided that nothing was going to be done about the will. At most, the 

evidence shows that John indicated that he would handle the will but never did so.

In Brown v. Byrd, the applicant claimed she was not in default because she relied on her 

uncle, many years her senior and a respected member of the community, to probate the 

decedent’s will. Brown v. Byrd, 512 S.W.2d 753, 757 (Tex. App.—Tyler 1974, no writ). The 

applicant also knew, however, that her uncle was not an attorney and that he had never offered a 

will for probate. The court rejected applicant’s reliance argument to avoid default. Id. 

Hartwell’s reliance argument is much the same. Yet, over the course of ten years during which 

the will was never filed for probate, Hartwell took no action to probate the will.
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In short, the trial court was presented with “no evidence of diligence—and undisputed 

evidence of [Hartwell’s] lack of reasonable diligence.”1 Marshall 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 lack of reasonable diligence, we find that the trial court did not err in granting the Siblings’

motion for summary judgment.

V. Conclusion

We affirm the trial court’s judgment.

Charles van Cleef

Justice

Date Submitted: December 6, 2023

Date Decided: January 10, 2024

1We further find that no material fact issues exist based on the differences in the parties’ testimony. For purposes of 

our analysis, we take as true all evidence favorable to Hartwell.