1 

## NO. 12

- 22

- 00256

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

ERIC D. BURNS , APPELLANT

V.

FAIRY JEAN BURNS , APPELLEE §

§

§ APPEAL FROM THE

COUNTY COURT AT LAW NO

. 2

SMITH COUNTY, TEXAS

MEMORANDUM OPINION Eric Dewayne Burns , proceeding pro se , appeals the trial court ’ s order granting summary judgment in favor of Appellee Fairy Jean Burns. Eric raises three issues on appeal. We aff irm.

B ACKGROUND Hershell Dewayne Burns was married to Fairy Jean Burns. In January 2008, Hershell
was admitted to hospice care. During his time in hospice care, he was administered, among other things, morphine. On May 22, Hershell executed his last w ill and testament. 1 The will identifies Fairy as Hershell ’ s wife and Eric as his son . In his will, Hersh ell sta te s his intention to bequeath the entirety of his estate to Fair y. He further states , “I have already give my son, ERIC DEWAYNE BURNS, a 1985 Chevrolet Corvette for his in h eritance from my estate.” The will contains the signatures of two witnesses , as we ll as a n executed, self

- proving affidavit. Hershell
d ied on July 23

. On August 21, Fairy filed an application to probate Hershell ’ s will and for the issuance of letters testamentary with the County Court of Smith County, Texas. Hershell ’ s will was filed
with the trial court that same day. On September 2, the trial court issued the c itation by p osting

.

1 On that same day, Hershell executed a general warranty dee d, by which he conveyed the homestead property , which consisted of a 1.785 acre tract, to Fairy . The deed was record ed on May 29, 2008.2 On September 9, the trial court signed a n order admitting the will to probate and authorizing letters testamentary. The order set forth , among other thi ngs, that the will was proved and

es tablished , that it should be adm itt ed to probate, and that Fairy was appointed to serve as Independent Exec utrix without bond. That same day, Fairy received letters testamentary to serve as Independent Executrix. On Se ptember 24, the Publisher ’ s Affidavi t was filed with the trial

court. In her role as executrix, Fair y filed the inventory, appraisement, and list of claims on January 14, 2009. On January 22, the trial court signed the order approving the inventory,

ap praisement, and list of claims.
On October 18, 2021, Eric , proceeding pro se, filed the instant suit, by which he sought to
contest Hershell ’ s will and have it set aside as a forgery because it was executed while Hershell was incapacitate d , and subject to Fairy ’ s undue influence . He furthe r asserted that he was
entitled to receive but did not receive notice of the probate proceedings due to Fai ry ’ s and her attorney ’ s fraudulent acts

. He also sought an order that the subject homes tead property be sold
and that he be awarded two

- thirds of the value of the property amounting to $219,000.00. He further sought to recover legal fees of $1,000.00 ass ociated with hiring a typist , as well as $2,500.00 previously paid to an attorney he all eged failed to perform le gal services on his behalf other than providing him a copy of Hershell ’ s will. Eric later amended his petition and further sought $500,000.00 in exemplary damages. Fairy filed a n answer , in which she made a general
denial , assert ed the affirma tive defens e of limitations , and specifically denied that the statute of
limitations was tolled. Subsequently, Eric filed two requests for declaratory judgment that “the 2007 Version of § 128a, f (Tex. Prob. Code) as the law to be applied to the facts o f this case [,]” Eric is the “lawful beneficiary to receive the 1985 Corvette” and a showing that Eric “did, in fact, take possession of
the Corvette as hi s portion of Decedent ’ s estate[,]” the limitations period is tolled as a result of
the d iscovery r ule or as a res ult of fraud , Eric lacked constructive notice of the probate proceedings , and “the statutory framework that would prevent [Eric] from ever asse rting [a]
claim to paternal inheritance [is] unconstitutional.” On February 7, 2022, Fa iry filed a motion for s u mmary judgment. In her motion, she argued that the statute of limitations had run for Eric ’ s claims amounting to a will contest or breach of f iduciary duty . She further asserted that she bore no fiduciary d uty to Eric, was not3 re quired to notify Eric, wh o was not a beneficiary under Hershell ’ s will, of the probate proceedings , and neither had engaged in fraudulent concealment nor committed thef t . Moreover,
she contended that Eric ’ s constitutional rights wer e not violated, the Cou nty Court of Smith County had jurisdiction to probate the will, and Eric has no right to the damages he sought. On February 14, Eric filed a response, in which he firs t argued that Fairy ’ s failure to answer his discovery constituted discovery abuse . Ther eafter, he made objection s to Fairy ’ s summary judgment evidence and argued that the will could be interpreted to name him as a beneficiary,
who was entitled to notice o f the proceedings, which he did not receive ; that constructive no tice should not apply , and that Fairy ’ s and her attor n ey ’ s failure to provide him notice amounted to
extrinsic fraud , which serve d to toll the limitations period

. On March 10, t he trial c ourt conducted a hearing on the matter. On March 16 , the trial

court signed an order gr anting Fairy ’ s motion for summary judgment on the ground that all relief sought by Eric was untimely under the applicable statute s of limitations and ordering that Eric take nothing by his suit

. Eric filed a motion for new trial , which was overruled . Thi s appeal
followed.

S UMMA RY J UDGMENT The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. See T EX

. R.
C IV

. P. 166a(c); 2 Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W. 2d 546, 548 (Tex. 1985). A defendant who conclusively negates at least one essential element of the nonmovant ’ s cause of action is
entitled to summary judgment as to that cause of action. See Randall ’ s Food Mkts., Inc. v.
Johnson , 891 S.W.2d 640, 644 (Te x. 1995). Likewise, a defendant who conclusively establishes
each element of an affirmative defense is entitle d to summary judgment. Id. Onc e the movant establishes a right to summary judgment, the nonmovant has the burden to re spond to the motion and p resent to the trial court any issues that would preclude summary judgment. See City of
Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678

– 79 (Tex. 1979). The only question is whether an issue of material fact is presented. See T EX

. R. C IV

. P. 166a( c).

2 The Texas Rule s of Civil Procedure apply to probate proceedings only to the extent they do not differ from the pro cedure established by the Probate Code (now Estates Code). See Wojcik v. Wesolick , 97 S.W.3d 3 35, 338 (Tex. App.

– Hou ston [14th Dist.] 2003, no pet.). The parties do not argue the existence of any provision of the Estate s Code, nor is this Court aware of any such provision, which negates the application of the Texas Code of Civil Procedure to the s ummary judgment procee dings in the instant case.4 When reviewing summary judgments, we perform a de novo review of the entire record in the light most favorable to the nonmovant, indulg ing every reasonable inference and resolving any doubts against the motion. See Sudan v . Sudan , 199 S.W.3d 291, 292 (Tex . 2006); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp. , 988 S.W.2d 746, 748 (Tex. 1999). We are not required to ascertain the cr edibility of affiants or to determine the weight of evidence in the affidavits, depositi ons, exhibits, and other summary judgment proof. See Gulbenkian v. Penn , 252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald

- Press Co. v. Zimmer , 257 S.W.3d 504, 508 (Te x. App.

– Tyler 2008, pet. denied). Further, all theories in support of or in oppositio n to a motion for summary judgmen t must be presented in writing to the trial court. See T EX

. R. C IV

. P. 166a(c). If the trial court ’ s order granting summary judgment does not specify the grounds relied on for its ruling, we will affirm it if any of the t heories advanced are meri torious. State Farm Fire & Cas. Co. v. S.S. , 858 S.W.2d 374, 380 (Tex. 1993). Thus, when an appellant fails to negate each ground on which
th e judgment could have been granted, we must affirm. Flores v. Hull Assocs

. N., LP , 657 S.W.3d 68, 75 (Tex. App.

– El Paso 2022, no pet.).

L IMITATIONS In his third issue, Eric argues that he was entitled to statutory notice of the 2008 probate proceedings and that his failure to receive such notice resulted from fraud committed by Fairy
and h er attorney, which fraud serves to toll the applicable limitations period

. 3 The primary purpose of statutes of limitations is to com pel the exercise of a right of

act ion within a reasonable time so that the opposing party has a fair opportunity to defend while
witnesses are avai lable and the evidence is fresh in their minds. LaGloria Oil and Gas Co. v.
Carboline Co. , 84 S.W.3d 228, 23 4 (Tex. App.

– Tyler 2001, pet. deni ed). It is in society ’ s best

3 We have construed Eric ’ s issues and supporting arguments liberally in the interest of justice. See Walker

v

. Thornton , 67 S.W.3d 475, 478 (Tex. App.

– Texarkana 2002, no pet.). However, we hold a pro se litigant to the

same s tandards as a licensed attorney, and he must, therefore, comply with all applicable laws and rules of procedure. See Zavala v. Franco , 622 S.W.3d 612, 617 (Tex. App.

– El Paso 2021, pet. denied); Serrano v. P

ellicano Park, L.L.C. , 441 S.W.3d 517, 520 (Tex. App.

– El Paso 2014, pet. dism ’ d w.o.j.); see also Wheeler v. Green , 157 S.W.3d 439, 444 (Tex. 2005) (recognizing that pro se litigants are n ot exempt from the rules of procedure). If pro se litigants were not required to comply with applicable laws and rul es of procedure, they would be given an unfair advantage over par ties represented by counsel. Zavala , 622 S.W.3d at 617 ; see also Mansfiel d State Bank v. Cohn , 573 S.W.2d 181, 184 (Tex. 1978). And, as the Texas Supreme Court has recognized, “[h]aving two sets of rules

–– a strict set for attorne ys and a lenient set for p ro se parties

–– might encourage litigants to discard their valuable right t o the advice and assistance of counsel.” Wheeler , 157 S.W.3d at 444.5 interest to grant repose by requiring that disputes be set tled or barred within a r easonable time.
Id. In his pleadings, Eric makes allegations giving rise to causes of action for a will co ntest, as well as fraud and breach of fiduciary duty related to Fairy ’ s alleged failure to give him notice of the probate proceedings. 4 See T EX

. E ST ATES C ODE A NN

. § 256.204 (West 2020 ) ( T EX

. P ROB

. C ODE A NN . § 93) 5 (providing two

- year limitations period from date will admitted to probate f or interested person to file will contest) ; see also T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § § 16.004(4), (5) (West 200 2) (providing four

- year limitations period for fraud and breach of fiduciary duty actions)

. Will Contest After a will is admitted to probate , an interested person may commence a suit to contest the validity thereof not later tha n the second anniversary of the date the will was admitted to probate, except that an interested person may commence a suit to cancel a will for forgery or
other fraud not later than the second anniversary of the date the forgery or fraud was discovered.
T EX

. E STATES C ODE A NN

. § 25 6.204 (a). An “interested person” includes “heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being
administered.” Id. § 22.01 8(1) ( West 2020 ) ( T EX

. P ROB

. C ODE § 3(r))

. “ Heir” means a person
who is entitled under the statutes of descent and distribution to a part of the estate of a decedent who dies intestate, including the decedent ’ s s urviving spouse. See id

. § 22.015 (West 2020 )

4 We note that Eric requested declaratory rel ief in the trial court. Because a decl aratory judgment action is a procedural device used to determine substantive rights, we must look to the legal remedy underlying the cause of action to determine the applicable limitations period. Ammerman v. Ranches of Clear Creek Cmty. Ass ’ n, Inc. , 562 S.W.3d 622, 636 (Tex. App.

– Houston [1st Dist.] 2018, no pet.) . Thus, if Eric ’ s causes of action for a will contest, fraud, and breach of fiduciary duty are barred by limitations, the declaratory relief he seeks likew ise is time barred. See id.

5 We rel y on the Probate Code provisions in effect at the time of Decedent ’ s death unless later enacted legi slation is expressly made applicable to the proceeding. See Act of May 26, 2009, 81st Leg., R.S., ch. 680, § 12, 200 9 Tex. Gen. Laws 1512, 1732 (eff . Jan. 1, 2014) (repealing and recodifying Probate Code as Estates Code, effective January 1, 2014); see al so, e.g. , Act of May 21, 2013, 83rd Leg., R.S., ch. 1136, § 62, 2013 Tex. Gen. Laws 2737, 2754 (eff. Jan. 1, 2014) (a pplying specified substantive am endment s to Estates Code to proceedings pending or initiated on or after January 1, 2014). All citations t o the Probate Code refer to the version of the Code in effect on July 23, 2008. However, where the Estates Code prov isions are substantively similar to the predecessor Probate Code provisions, and absent a savings clause making the Probate Code the only a pplicable provision, we will cite to the Estates Code and, after the initial citation, provide a parenthetical settin g forth the corresponding sectio n of th e Probate Code for reference. See Act of May 26, 2009, 81st Leg., R.S., ch. 680, § 11, 2009 Tex. Ge n. Laws 1512, 1732 (eff. Jan. 1, 2014) (providing recodification was intended to be nonsubstantive); s ee also In re E

state of Harris , No. 02

- 19

- 00333

- CV, 20 21 WL 832721, at *2 (Tex. App.

– Fort Worth Mar. 4, 2021, pet. denied) (mem. op.)

.6 ( T EX

. P ROB

. C ODE § 3(o)). Here , in his w ill, Hershell states that Eric is his son. Thus, because the record supports the existence of only one will in the probate proceeding at issue, were Eric to successful ly challenge the will due to Hershell ’ s incapacity , he potentially would be entitled to
inherit as Hershell ’ s hei r under intestate succession. See id

. § 201.003(c) (West 2020 ) ( T EX

. P ROB

. C ODE § 45 ) ; see also In re Estate of Adams , No. 14

- 12

- 00064

- CV, 201 3 WL 84925, at * 4 (Tex. App.

– Houston [ 14th Dist.] 2013, no pet.) (mem. op.). Therefore , we conclude that Eric is an “interested person” under Section 256.204. Generally, Texas courts have refused to apply the discovery rule to claims arising out of proba te proceedings, even in cases involving allegations of fraud. 6 See Little v. Smith , 943 S.W.2d 414, 420 (Tex.199 7) ; Evans v. Allen , 358 S.W.3d 358, 365 (Tex. App.

– Houston [1st Dist.] 2011, no pet.). “A person is charged with constructive notice of the ac tual knowledge that could have been acquired by examining public records.” Mooney v. Ha rlin , 622 S. W.2d 83, 85 ( Tex. 1981). Constructive notice creates an irrebuttable presumption of actual notice. Id. “Persons interested in an estate admitted to proba te are charged with notice of the contents of the probate records.” Id. ; see Little
, 94 3 S.W.2d at 420 (“Such cl aims [arising out of probate proceedings] are barred by limitations because the claimant has constructive notice of the probate proceedings.”); In re Estate of McGarr , 10 S.W.3d 373, 377 (Tex. App.

– Corpus Christi 1999, pet. denied) (“Even in p robate cases involving allegations of fraud, Texas courts have refused to apply the discovery rule because of the doctrine of constructive notice and the st rong public interest in according finality to probate proceedings”). Thus, at the time a will is ad mitted to pro bate, a potential contestant has constructive knowledge of the date the testator executed the
will and the fact that the contestant is not a be neficiary named in the will. See Mooney , 622
S.W.2d at 85 ; Evans , 358 S.W.3d at 365

. I n such a case, the statut e of limitations begins to run

6 We note that the plain language of S ection 256.204 provides an exception to the general two

- year statute of limitations only in cases of “forgery or other fraud.” T E X

. E STA TES C ODE § 256.204(a) (West 2020 ) ( T EX P ROB

. C ODE § 93 )

. The statute does not refer to testamentary capacity. When interpreting a statute, we begin with the plain language of the statute because “it is a fair assump t ion that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.” Fitzgeral d v. Advanced Spine Fixation Sys., Inc. , 996 S.W.2d 864, 866 (Tex. 1999). E ric does not argue and cites no authority for the proposition that Her shell ’ s purported lack of testamentary capacity constitutes “other fraud” such that this issue falls within the limitations exception. See Neill v. Yett , 746 S.W.2d 32, 35 (Tex. App.

– Austin 1988, writ denied) (“The ty p e of fraud that invalidates a probate judgment upon attack pursuant to [Section] 93 is extrinsic fraud, not intrinsic fraud. Fraud is con s idered ‘ in trinsic ’ when the fraudulent acts pertain to an issue that was, or could have been, litigated in the origi n al suit. On the other hand, fraud is ‘ extrinsic ’ when the fraudulent acts prevent a party from either having a trial or prevent him from h aving a fa ir opportunity to present his case”). Thus, we focus only on Eric ’ s claims that Fairy ’ s failure to notify him of the probate proceedings constit uted fraud.7 on the date the will was admitted to probate. See Mooney , 622 S.W.2d at 85; Evans , 358
S.W.3d at 365. Here, on September 2, 2008, the trial court issued the c itation by p osting. 7 See T EX

. E STATES C O DE A NN

. § § 258.001(b), 3 03.001 (West 2020 ) ( T EX

. P ROB

. C ODE § 128(a)).
Hershell ’ s will was admitted to probate on September 9. Eric is charged with constructive noti ce of the will ’ s admission to probate. See Mooney , 622 S.W.2d at 85 ; Evans , 358 S.W.3d at 365

. Therefore, Eric ’ s suit seeking to contest the will filed more than thirteen years later is untimely. Eric argues, however, that Fairy and her attorney commi tted extrinsic fraud by failing to give him notice of the probate proceedin gs and, thus, the limitations period s hould be tolled until he discovered that the probate of his father ’ s estate had taken place. See T EX

. E STATES C ODE § 256.204(a). His argument is based on the notion that he is, in fact , a beneficiary of Hershell ’ s wil l, which stat es, in pertinent part, a s follows:

DISPOSITION OF ESTATE

A. If my wife, FAIRY JEAN BURNS, survives me, I give, devise and bequeath all of my estate of whatsoever ki nd and wheresoever situated to my wife, FAIRY JEAN BURNS. I have already give my son, ER IC DEWAYNE BURNS, a 1985 Chevrolet Corvette for his inheritance from my estate.

According to Eric ’ s interpretation of this clause, the use of the word “give” demonstr ates Hershell ’ s present intention to transfer the 1985 Corvette as part of the estate, thereby mak ing
Eric a bene ficiary, who is entitled to notice by registered or certified mail, return receipt

requ ested. See id. §§ 308.002(a), (d), 308.003 (West 2020 ) ( T EX P ROB

. C ODE § 128A). We disagree.
We review a trial court ’ s construction of unambiguous lan guage in a wil l de novo.
Jinkins v. Jinkins , 522 S.W.3d 771, 779 (Tex. App.

– Houston [1st Dist.] 2017, no pet.).
When interpreting a will, courts focus on t he testator ’ s intent as reflected in the instrument as a
whole. San Antonio Area Found. v. Lang , 3 5 S.W.3d 636, 639 (Tex. 2000); see Welch v.
Straach , 531 S.W.2d 319, 322 (Tex. 1975) (conc luding that “all parts of the testamentary

7 The record reflects that Hershell ’ s w ill was offered for probate within four years a fter the d ate of his death and that Fairy produced the will to the probate court, not a copy. Accordingly, Hershell ’ s “ heirs ” were not entitled to the sam e notice as they would have been had the w ill been offered for probate after the four

- year period or had no will been produced in court

. See T EX

. E STATES C ODE A NN . §§ 2 58 .0 02 , 258.051 (West 2020 ) ( T EX

. P ROB

. C ODE § § 1 28(b) , 128B )

. Because neither of thes e conditions was present, there was no legal reaso n for Fairy to send such notice to Eric.8 writings .

. . are to be harmonized and given effect”). The court must ascertain the testator ’ s intent from the language e xpressed withi n the four corners of the will. Shriner ’ s Hosp. for Crippled Children of Te x. v. Stahl , 610 S.W.2d 147, 151 (Tex. 1980); Rosen v. Wells Fargo Bank Tex., N.A. , 114 S.W.3d 145, 158 (Tex. App.

–Austin 2003, no pet.). Thus, the court must
scruti nize the words actually used by the testator instead of the words he may have intended to
write. Hysaw v. Dawkins , 483 S.W.3d 1, 7 (Tex. 2016). “In this li ght, courts must not redraft wills to vary or add provisions ‘ under the guise of construction of th e language of the will ’ to reach a presumed intent.” Lang , 35 S.W.3d at 639 (quoting Stahl , 610 S.W.2d at 151). When a
trial court ’ s construction of an una mbiguous will is erroneous, an appellate court will reverse the
trial court ’ s judgment and render t he judgment th e trial court should have rendered. Brewer v.
Fountain , 583 S. W.3d 871, 876 (Tex. App.

– Houston [1st Dist.] 2019, no pet.)

. T he phrase “have g ive n” is in the present perfect tense and is formed by using “ have ” with the past participle of the verb “give.” See p resent perfect , T HE A MERICAN H ERITAGE
D ICTIONARY (2nd College ed. 1982). The present perfect tense describes an action that happened o r began at an indefinite time in the past

. See id. ; see , e.g. , J OHN E. W ARRINER , W ARRINER ’ S E NGLIS H G RAMMAR AND C OMPOSITION : C OMPLETE C OURSE 201 ( Harcourt Brace
Jovanovich , Inc. , Liberty ed. 1986). In this context, t he word “already” means “ previously.”
A lready , T HE A MERICAN H ERITAGE D ICTIONARY (2nd College ed. 1982). And as far as we are
aware, t he phrase “have give” is not indicative of a known tense or phrase common in the English language. Nonetheless , despite this quite apparent typographical erro r, we are bound to scrutinize the words actually used. See Dawkins , 483 S.W.3d at 7

. Based on ou r reading of t he entirety of the will, and our interpretation of its language, we conclude that Hershell intended to leave his entire estate to Fairy . His s tatement, “I have already give my son . . . a 1985 Corvette
for his inheritance” reasonably c an be interpreted to mean, “I previously have given my son a
1985 Corvette for his inheritance. ” In sum, under the terms of Hershell ’ s will, Eric was an “intere sted person,” not a “beneficiary

. ” See T EX

. E STATES C ODE A NN

. § 22.018(1)

. Accordingly, he was no t entitled to
receive notice in accordance with Section 308.002 . Rather, as an “interested” person, he was entitled to receive notice by posting, which the record supports was undertaken. See id

. § § 258.001(b), 303.001

. Therefore, based on our review of the record, w e hold that ther e is no summary judgment evidence which supports Eric ’ s claim that Fairy and her attorney committed9 extrinsic frau d. According ly, the record does not support his argument that the limitations period
should be tolled under Section 25 6.204. Fraud and Breach of Fiduciary Duty As set forth above, Eric had constructive notice of the probate proceedings, and nothing
served to toll the claims which arose from those proceedings . Therefore, his causes of act ion for
fraud and breach of fiduc iary du ty are untimely. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. §§ 16.004(4), (5). Moreover, even if these causes of action somehow were filed timely, we have
held that Fairy acted in accordance with the rules governing serv ice of “interested persons

. ”
Thu s, ther e is no basis for Eric ’ s claims for fraud and breach of fiduciary duty , both of which
stem from his argument that Fairy was required to serve h im as if he were a beneficiary in
accordance with Section 308.002. Eric ’ s third issue is overruled.

J URI SDICTIO N In his second issue, Eric argues that because he was not notified of the probate proceedings, the probate court lacked in personum jurisdict ion over him and, as a result, its
admittance of Hershell ’ s will to probate was the equivalent of a defaul t judgm ent. W e reiterate
that Eric received constructive notice of the proceedings in accordance with the law. See T EX

. E STATES C ODE A NN

. §§ 258.001 (b), 303.001. And, as noted previously, c onstructive notice in
law creat e s an irrebuttable presumption of actual notice. See Mooney , 622 S.W.2d at 85. Furthermore, probate proceedings are actions in rem and bind all persons unless set aside in the

manne r provided by law

. See id. Thus, we hold that Eric ’ s argument that the probate court lacked in personum jurisdi ction over him is baseless. 8 Eric ’ s second issue is overruled.

E XCLUSION OF E VIDENCE

8 Eric a lso asserts that the notice

- by

- posting

- of

- citation procedure in probate cases is unconstitutional. In support of hi s contention, he relies on Sgitovich v. Sgitovich , 241 S.W.2d 142 (Tex. 1951). Once again, probate proceedings are actions in rem , not in p ersonam. See Mooney v. Harlin , 622 S.W.2d 83, 85 (Tex. 1981). The post ing of citation in probate cases , which occu r red in the subject probate proceeding, is the proper and authorized method by which the public and “interested persons” are notified of the filing of the application for probate. See T EX

. E STATES C ODE A NN

. §§ 2 58.001(b), 303.001 (West 2020 ) ( T EX

. P ROB

. C O DE § 128(a))

. Sgitovich does not invo lve a probate case, but rather pertains to substituted service of a party under Texas Rule of Civil P rocedure 106 , which the supreme court upheld

. See Sgitovich , 241 S.W.2d at 147

– 48 . We conclude that Eric’s relianc e on Sgitovich is misplaced in his cons titutional attack on the underlying, in rem , probate proceeding

.10 In his first issue, Eric contends that the trial court abused its discretion in refusing to
admit medical record s he offered at the hearing on Fairy ’ s motion for summar y judgment. 9
We review a trial court ’ s ruling concerning the admission or exclusion of summary judgment evidence for an abuse of discretion

. First State Bank of Mesquite v. Bellinger & Dewolf, LLP , 342 S.W.3d 142, 147 (Tex. App.

– El Paso 2011, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Bowie Mem ’ l Hosp

. v. Wright , 79 S.W.3d 48, 52 (Tex. 2002). When reviewing
matters committed to the trial court ’ s discretion, we may not substitute our own judgment for
that of the trial court. See i d. The trial court ’ s evidentiary ruling will be upheld if there is any legitimate basis for the ruling. In re Estate of Miller , 243 S.W.3d 831, 837 (Tex. App.

– D allas
2 008, no pet.) (citing Owens

– Corning Fiberglas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998) )

. Here, Eric offered the medical records at issu e at the hearing on Fairy ’ s motion for summary judgment. Except on leave of court, the party responding to summar y judgment must serve its response and supporting evidence not later than seven d ays prior to the day of the hearing. See T EX

. R. C IV

. P. 166 a(c). Because Eric offered the evidence at issue during the hearing on Fairy ’ s motion for summary judgment , the o ffer was untimely

. 10 See id. But even
had Eric timely offered the medical r ecords, the tria l court ’ s exclusion of them would not amount

to an abuse of discretion. Evidence is relevant, and, therefore, admissible, if it has any tendency to “make the
exi stenc e of any fact that is of consequence to the determination of the action more probable o r less probable than it would be without the evide nce.” T EX

. R. E VID

. 401, 402; Serv. Corp. Int ’ l
v. Guerra , 348 S.W.3d 221, 237

– 38 (Tex. 2011). To determine rele vancy , the court must look at the purpose for offering the evidence. Serv. Lloyds Ins. Co. v. Martin , 855 S.W.2d 816, 822 (Tex. App.

– Dallas 1 993, no writ). There must be some logical connection, eit her directly or by inference, between the evidence offer ed an d the fact to be proved. See Rhey v. Redic , 408 S.W.3d 440, 460 (Tex. App.

– El Paso 2013, no pet.) (citing Martin , 855 S.W.2d at 822).

9 The evidence appears in the re c ord by way of Eric ’ s bill of exception.

10 At trial, Eric c laimed that he did not receive the medical records unti l the day of the hearing. However, he did not seek a continuance of the proceedings or otherwise request leave to introduce the evidence. S ee T EX

. R. C IV

. P. 166a(c) (providing opportunity for respon ding party, upon leave of court, to file and serve oppo s ing evidence or other written response ).11 I n the instant case, the evidence at issue consisted of Her shell ’ s medical records from his time in hospice care

–– t he pe riod during which he executed the will

. These records indicate that, among other medications, Hershell was administered morphine during that time period

. At trial, Eric argued that these record s are relevant to his claim because they support that He rshel l “lacked testamentary capacity to execute important documents while under the influence of his prescribed pain medications, which made h im legally intoxicated as a matter of law.” What Eric
mis perceives in making this argument is that the basis of F airy ’ s motion for summary judgment
is that Eric ’ s will contest is untimely under the applicable statute of limitations. Therefore,
b ecause th e excluded evidence did not make the existence of any fact that is of consequence to
the determination of the issu e of limitations more probable or less probable than it would be without the evidence, we conclude that it was not relevant and, therefore, in admissible

. See T EX

. R. E VID

. 401 , 402

. Because the trial court did not abuse its discretion in excluding the ev idence , we overrule Eric’s first issue

. See T EX

. R. E VID

. 402.

D ISPOSITION Having overruled Eric ’ s first, second, and third issues, we af firm the trial court ’ s judgment.
G REG N EELEY Justice
Opinion delivered April 20 , 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.12 

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGME NT

APRIL 20 , 2023

NO. 12

- 22

- 00256

- CV

ERIC D. BURNS , Appellant V. FAIRY JEAN BURNS , Appellee

Appeal from the Co unty Court at Law No 2
of Smith County , Texas (Tr.Ct.No. 73576

- A ) THIS CAUSE came to be heard on the appellate record and briefs filed
he rein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , all costs of this appeal are assess ed against Appellant , ERIC D. BURNS , and that this decision be certified to the court below for
observance. Greg Neel ey , Justice

. Panel consisted of Worthen , C.J., Hoyle, J., and Neeley, J.