NO. 12-09-00256-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE ESTATE OF § APPEAL FROM THE 294TH

ERNEST H. WARREN,

§ JUDICIAL DISTRICT COURT

DECEASED

§ VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION

Beverly Ann Corey (“Corey”) and Stephen Leonard Warren (“Warren”) appeal from the 

trial court‟s order granting Claude Michael Rightmire‟s motion for summary judgment in Corey 

and Warren‟s contest of the Last Will and Testament of Ernest H. Warren (“Ernest”). In two 

issues, Corey and Warren contend that no evidence summary judgment was improper because a 

genuine issue of material fact existed as to whether Ernest lacked testamentary capacity when he 

executed the will and whether his wife of thirty-five years, Martha Jo Warren, exercised undue 

influence on him at such time. We modify the judgment and affirm as modified.

BACKGROUND

Ernest and Martha Jo were married in 1970. No children were born during their 

marriage. Ernest had three children from a prior marriage, including Corey and Warren. In 

1993, Ernest executed a will leaving his estate to Martha Jo. Ernest died in 2005. Corey and 

Warren contested Martha Jo‟s attempt to probate their father‟s will. Martha Jo died in 2006 

while their contest to the will was still pending. Rightmire, as co-independent executor, filed an 

amended application to probate Ernest‟s will following Martha Jo‟s death. Rightmire then filed 

a hybrid no evidence and traditional motion for summary judgment. Corey and Warren filed a 

response with attached affidavits and depositions. Rightmire filed objections to the affidavits 

and depositions.
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On May 15, 2009, the trial court sustained Rightmire‟s objections to the affidavits and 

depositions. The trial court subsequently granted Rightmire‟s no evidence motion for summary 

judgment, stating that Corey and Warren had failed to produce any evidence to support their 

claims. Corey and Warren timely filed this notice of appeal.

SUMMARY JUDGMENT

In their first issue, Corey and Warren contend that the trial court improperly granted 

summary judgment because they had raised the issue of Ernest‟s testamentary capacity. In their 

second issue, they assert that the trial court improperly granted summary judgment because they 

had raised the issue of Martha Jo‟s undue influence. 

Standard of Review

We review a trial court‟s granting of summary judgment de novo. Mid-Century Ins. Co. 

of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). When performing a de novo review, we 

exercise our own judgment and redetermine each issue of fact and law. See Schade v. Tex. 

Workers’ Comp. Comm’n, 150 S.W.3d 542, 549 (Tex. App.—Austin 2004, pet. denied) (citing

Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999)). A no evidence summary judgment 

motion is essentially a motion for a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 

S.W.3d 572, 581-82 (Tex. 2006) (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 

711 (Tex. 1997)). Once such a motion is filed, the burden shifts to the nonmoving party to 

present evidence raising a genuine issue of material fact as to the elements specified in the 

motion. Mack Trucks, 206 S.W.3d at 582 (citing Havner, 953 S.W.2d at 711). A no evidence 

motion for summary judgment must be granted if (1) the moving party asserts that there is no 

evidence of one or more specified elements of a claim or defense on which the adverse party 

would have the burden of proof at trial; and (2) the respondent produces no summary judgment 

evidence raising a genuine issue of material fact on those elements. Sudan v. Sudan, 199 S.W.3d 

291, 292 (Tex. 2006) (citing TEX. R. CIV. P. 166a(i)). A fact is “material” if it affects the 

ultimate outcome of the lawsuit under the governing law. Acad. of Skills & Knowledge, Inc. v. 

Charter Sch., USA, Inc., 260 S.W.3d 529, 534 (Tex. App.—Tyler 2008, pet. denied); Pierce v. 

Wash. Mut. Bank, 226 S.W.3d 711, 714 (Tex. App.—Tyler 2007, pet. denied). A material fact 

issue is “genuine” if the evidence is such that a reasonable jury could find the fact in favor of the 

nonmoving party. Acad. of Skills, 260 S.W.3d at 534; Pierce, 226 S.W.3d at 714.
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Discussion

Corey and Warren contend that the trial court improperly granted summary judgment 

because they raised the issues of Ernest‟s testamentary capacity and Martha Jo‟s undue 

influence. Rightmire, as part of his response, asserts that Corey and Warren have failed to 

preserve these issues because they have not complained on appeal of the trial court‟s evidentiary 

rulings. These rulings resulted in the exclusion from evidence of Corey and Warren‟s only 

evidence to support lack of testamentary capacity and undue influence.

Testamentary Capacity

The will in question is a self-proving will. If the will had been admitted to probate, the 

burden of proof regarding testamentary capacity would have shifted to the contestants, Corey and 

Warren. See In re Estate of Graham, 69 S.W.3d 598, 605 (Tex. App.—Corpus Christi 2001, no 

pet.). Because this will had not yet been admitted to probate, the burden of proof rested upon 

Rightmire. See id. Rightmire, as the party with the burden of proof, could not move for no 

evidence summary judgment on testamentary capacity. See Bostic v. Bostic, No. 12-02-00305-

CV, 2003 WL 22047902, at *2 (Tex. App.—Tyler Aug. 29, 2003, no pet.) (mem. op.) (reaching 

a similar conclusion). Therefore, the trial court‟s no evidence summary judgment on 

testamentary capacity was improper. See id. However, an appellate court may, in the interest of 

judicial economy, consider other grounds that the movant preserved for review, despite the fact 

that the trial court did not rule on them. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 

(Tex. 1996). Here, as the prevailing party, Rightmire has correctly asserted in his brief that this 

court may consider whether traditional summary judgment was proper on the issue of 

testamentary capacity. See City of Angleton v. USFilter Operating Servs., Inc., 201 S.W.3d 677, 

679 (Tex. 2006). 

When reviewing a ruling on a traditional motion for summary judgment, we must 

examine the entire summary judgment record in the light most favorable to the nonmovant, 

indulging every reasonable inference and resolving any doubts against the motion. Yancy v. 

United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex. 2007) (citing City of Keller v. 

Wilson, 168 S.W.3d 802, 824-25 (Tex. 2005)). For a party to prevail on a traditional motion for 

summary judgment, it must conclusively establish the absence of any genuine issue of material 

fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). Evidence is 

conclusive only if reasonable and fair minded jurors could not differ in their conclusions. Acad. 

of Skills, 260 S.W.3d at 535 (citing Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 
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755-56 (Tex. 2007)). Once the movant has established a right to summary judgment, the 

nonmovant has the burden to respond to the motion for summary judgment and present to the 

trial court any matters that would preclude summary judgment. Acad. of Skills, 260 S.W.3d at 

535; Pierce, 226 S.W.3d at 714.

In their brief, Corey and Warren have failed to assert that the trial court erroneously 

sustained Rightmire‟s objections to their summary judgment evidence. An appellant‟s brief must 

state concisely all issues presented for review. TEX. R. APP. P. 38.1(f). The statement of an issue 

will be treated as covering every subsidiary question that is fairly included. Id. An issue 

presented in an appellant‟s brief is sufficient if it directs the attention of the appellate court to the 

error about which the complaint is made. Acad. of Skills, 260 S.W.3d at 536; Bankhead v. 

Maddox, 135 S.W.3d 162, 163 (Tex.App.—Tyler 2004, no pet.). In its review of a civil matter, 

an appellate court has no discretion to consider an issue not raised in an appellant‟s brief, even 

though the court may perceive that the ends of justice support such a course. In re M.T., 290 

S.W.3d 908, 910 (Tex. App.—Tyler 2009, no pet.); Acad. of Skills, 260 S.W.3d at 536; 

Bankhead, 135 S.W.3d at 163-64. 

Corey and Warren bore the responsibility to frame their issues in this appeal, and we 

cannot consider an issue not raised in their brief. See In re M.T., 290 S.W.3d at 910; Acad. of 

Skills, 260 S.W.3d at 536; Bankhead, 135 S.W.3d at 163-64. We note that an appellate court 

may sometimes be able to consider issues not raised on appeal where those issues involve 

fundamental error. See In re B.L.D., 113 S.W.3d 340, 350-51 (Tex. 2003) (discussing the limited 

circumstances in which the fundamental error doctrine has been utilized by the supreme court). 

However, we do not believe the trial court‟s evidentiary rulings rise to the level of fundamental 

error. See Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993) (“Fundamental 

error exists „in those rare instances in which the record shows the court lacked jurisdiction or that 

the public interest is directly and adversely affected as that interest is declared in the statutes or 

the Constitution of Texas.‟”).

Because of the trial court‟s rulings, the only evidence properly before the trial court 

supported, rather than controverted, testamentary capacity. In light of this evidence, we cannot 

conclude that a genuine issue of material fact existed on the issue of Ernest‟s testamentary 

capacity. Instead, the remaining summary judgment evidence conclusively established the 

absence of any genuine issue of material fact and that Rightmire was entitled to judgment as a 

matter of law. See TEX. R. CIV. P. 166a(c). 
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Undue Influence

Corey and Warren bore the burden of proof regarding their undue influence claim. See 

Bostic, 2003 WL 22047902, at *3. Therefore, Rightmire could file a no evidence summary 

judgment motion on this issue. See TEX. R. CIV. P. 166a(i); see also Bostic, 2003 WL 22047902, 

at *3-4. As such, it was Corey and Warren‟s burden to produce evidence supporting undue 

influence in response to Rightmire‟s motion on this issue. See Bostic, 2003 WL 22047902, at *3-

4.

Again, Corey and Warren have failed to assert that the trial court erroneously sustained 

Rightmire‟s objections to their summary judgment evidence. A no evidence motion for 

summary judgment must be granted if (1) the moving party asserts that there is no evidence of 

one or more specified elements of a claim or defense on which the adverse party would have the 

burden of proof at trial; and (2) the respondent produces no summary judgment evidence raising 

a genuine issue of material fact on those elements. Sudan, 199 S.W.3d at 292 (citing TEX. R.

CIV. P. 166a(i)). Because of the trial court‟s rulings, no evidence was properly before the trial 

court that would raise a genuine issue of material fact in relation to the issue of Martha Jo‟s 

undue influence. As such, this issue was ripe for no evidence summary judgment. See TEX. R.

CIV. P. 166a(i); Sudan, 199 S.W.3d at 292.

CONCLUSION

The trial court improperly granted a no evidence summary judgment on the issue of 

testamentary capacity. Therefore, we sustain Corey and Warren‟s first issue. The trial court 

properly granted Rightmire‟s motion for no evidence summary judgment on undue influence. 

Therefore, we overrule Corey and Warren‟s second issue. Because traditional summary 

judgment was proper, we modify the trial court‟s judgment so that, as to the issue of testamentary 

capacity, the judgment is a traditional summary judgment, not a no evidence summary judgment.

See TEX. R. APP. P. 43.2. As modified, we affirm the trial court‟s judgment.

JAMES T. WORTHEN

 Chief Justice

Opinion delivered June 30, 2010.

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

(PUBLISH)