Estate of Lee Earl Poppe, Sr. ( 2009 )

Opinion issued March 5, 2009  

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-08-00021-CV

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SHIRLEY POPPE, KYLE POPPE, AND LISA MATULA, Appellants

V.

ROBERT POPPE, Appellee

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On Appeal from the County Court

Colorado County, Texas

Trial Court Cause No. 10,041

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MEMORANDUM OPINION

   Appellants, Shirley Poppe, Kyle Poppe, and Lisa Matula, appeal from the trial court's order granting the motion dismiss of appellee, Robert Poppe. Appellants filed an Application for Probate of Will as a Muniment of Title. Robert contested the application. Robert filed a motion to dismiss, which the trial court granted. In their first issue, Shirley, Kyle, and Lisa contend the trial court erred by granting Robert's motion to dismiss because it was really a motion for summary judgment and questions of fact precluded summary judgment. In their second issue, appellants contend certain of the trial court's findings of fact and conclusions of law are not supported by legally and factually sufficient evidence. We conclude Robert's motion was in fact a motion for summary judgment and the summary judgment evidence does not conclusively establish Robert's right to summary judgment as a matter of law. We do not address the second issue. We reverse the trial court and remand the cause.Background Lee Earl Poppe, Sr. ("Lee Sr.") owned 100 acres in Colorado County. On March 19, 2000, he died, survived by his wife Lillie and two sons, Robert, the appellee, here, and Lee Earl Poppe, Jr. ("Lee Jr.") (the deceased husband of appellant Shirley Poppe). Lillie did not offer Lee Sr.'s will for probate. On March 8, 2001, Lillie conveyed one-half of the 100 acres to Lee Jr. and Shirley. Lillie died on May 3, 2003.

Lee Jr. died on January 23, 2006, having never probated either Lee Sr.'s will or Lillie's will. Robert filed suit against Shirley on October 2, 2006 over disputes to the 100 acres. Shirley filed an application to probate the will of Lee Sr. as a muniment of title on November 17, 2006. Robert contested the application and filed a motion to dismiss. Shirley amended her application to include her children, Kyle and Lisa. For convenience, in this opinion we will hereafter refer to the applicants collectively as "Shirley."

In his motion, Robert asserts the Probate Code allows a will to be probated as a muniment of title after four years from the death of the testator only if the applicant was not in default in failing to present the will for probate within the four-year period. Robert contends that Shirley was in default or, alternatively, Lillie's default in failing to probate the will was attributable to Shirley.

Robert attaches two exhibits as evidentiary support for his motion to dismiss--four pages from Shirley's deposition and a letter from Shirley's counsel to Robert's counsel discussing the wills of Lee Sr. and Lillie.

Robert does not include a specific prayer for relief in his motion, but in the final paragraph, entitled "Conclusion," Robert states, "Shirley's application to probate the will of Lee Earl Poppe, Sr. as a muniment of title should be denied [for the reasons set forth in the motion]." Shirley responded to the motion to dismiss, stating Robert's motion to dismiss was "a thinly disguised Motion for Summary judgment" and fact issues concerning default made summary judgment inappropriate. The trial court granted the motion to dismiss without specifying the reason, stating the "application to probate the will of Lee Earl Poppe, Sr., Deceased, as a Muniment of Title is DENIED."

Robert's Motion to Dismiss

In her first issue, Shirley contends the trial court erred by granting Robert's motion to dismiss. Shirley contends the motion to dismiss was in fact a motion for summary judgment and fact issues precluded the trial court from rendering summary judgment in this case.

A. Applicable Law

"[T]he nature of a motion is determined by its substance, not its caption." In re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008) (orig. proceeding) (quoting Brookshire, 250 S.W.3d at 77 (Hecht, J., dissenting)); see Barry v. Barry, 193 S.W.2d 72, 74 (Tex. App.--Houston [1st Dist.] 2006, no pet.); see also Tex. R. Civ. P. 71 ("When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated."). We must therefore examine the substance of and the relief sought in Robert's motion to determine how it should be treated. See Barry, 193 S.W.3d at 74 (examining allegations and prayer for relief to determine whether answer after default should be considered post-judgment motion).

A party moving for summary judgment against the party asserting a claim must either (1) disprove at least one element of the claimant's cause of action, or (2) plead and conclusively establish each essential element of its affirmative defense. Nowak v. Pellis, 248 S.W.3d 736, 738 (Tex. App.--Houston [1st Dist.] 2007, no pet.) (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995)); see also Tex. R. Civ. P. 166a, 1997 cmt. (stating that in "ordinary motions for summary judgment under paragraphs (a) or (b) [of Rule 166a], . . . the movant must prove it is entitled to judgment by establishing each element of its own claim or defense as a matter of law or by negating an element of the respondent's claim or defense as a matter of law."). A summary judgment movant may show there are no genuine issues of material fact using summary judgment evidence, namely, "(i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court." Tex. R. Civ. P. 166a(c).

B. Substance of Robert's Motion to Dismiss

Here, one element of Shirley's claim to admit the will to probate as a muniment of title was that four years have not elapsed since the death of Lee Sr. or that Shirley was not in default for failing to present the will within four years of his death. Tex. Prob. Code Ann. § 73(a) (Vernon 2003) ("No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid . . . ."). In his motion, Robert contends Shirley did not file the application to probate the will as a muniment of title within four years and was in default for failing to do so. Robert attached evidence to support this contention. In other words, Robert was expressly attempting to disprove one element of Shirley's cause of action, just as in a summary judgment. See Nowak, 248 S.W.3d at 738; Tex. R. Civ. P. 166a, 1997 cmt. Further, the only relief Robert requested in his motion was for the trial court to deny the application, not dismiss the case. Finally, when the trial court granted Robert's motion, it denied the application, it did not dismiss the case. Examining the substance of the motion, including the prayer for relief, we hold that Robert's motion to dismiss should properly be considered a motion for summary judgment. See Barry, 193 S.W.3d at 74; see also In re D.K.M., 242 S.W.3d 863, 865 (Tex. App.--Austin 2007, no pet.) (noting defense of limitations should have been raised in motion for summary judgment, not motion to dismiss, because "the rules of civil procedure do not provide for a defendant's motion to dismiss, except possibly for want of prosecution after a plaintiff fails to appear at a hearing or trial setting, see Tex. R. Civ. P. 162 (plaintiff may dismiss suit), 165a (case may be dismissed for want of prosecution) . . . .").

Robert asserts that his motion was not a motion for summary judgment for four reasons. First, Robert contends "not every motion that results in dispositive relief" is a motion for summary judgment. As support, Robert states, "For instance claims against health care providers can be disposed of through a motion to dismiss under Chapter 74 of the Texas Civil Practice and Remedies Code." However, it is undisputed that this is not a claim against a health care provider and that the statutory scheme Robert refers to does not apply in this case. Additionally, a motion to dismiss under Chapter 74 serves a different purpose than a summary judgment. "A motion to dismiss seeks to demonstrate that a plaintiff has not satisfied the procedural requirements of Chapter 74, while a motion for summary judgment seeks to demonstrate that the substance of the claim lacks merit." Wissa v. Voosen, 243 S.W.3d 165, 169 (Tex. App.--San Antonio 2007, pet. denied). As discussed above, Robert attacked the substance of Shirley's claim, not a procedural requirement.

Second, Robert asserts the summary judgment procedures of the Texas Rules of Civil Procedure are "inapplicable to this probate matter." Robert asserts that rule 166a(a) authorizes a "party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment" to "move . . . for a summary judgment." See 166a(a). Robert contends that because he is not seeking to recover upon a claim, the summary judgment procedures do not apply. However, Robert ignores rule 166a(b), which provides that a defending party may also move for summary judgment. See Tex. R. Civ. P. 166a(b). We decline to hold that summary judgment proceedings do not apply to the contest of an application to probate a will as a muniment of title.

Robert also contends his motion to dismiss should not be treated as a motion for summary judgment because Shirley did not treat it as such when it was filed. Robert contends Shirley did not timely file a response and no evidence was filed with the untimely response. However, as the movant, it was Robert's burden to prove no fact questions existed and he was entitled to summary judgment as a matter of law. Nowak, 248 S.W.3d at 738. Only if Robert conclusively disproved an element of the applicant's claim did the burden shift to Shirley, as nonmovant, to respond with evidence raising a genuine issue of material fact that would preclude summary judgment. See Williams v. Unifund CCR Partners, 264 S.W.3d 231, 235 (Tex. App.--Houston [1st Dist.] 2008, no pet.). Robert also contends that because the applicants requested findings of fact and conclusions of law, his motion should not be treated as a motion for summary judgment. However, it is the substance of Robert's motion we must examine to determine its nature, not how Shirley responded after the motion was granted by the trial court. See Barry, 193 S.W.3d at 74; see also Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (noting findings of fact and conclusions of law have "no place" in summary judgment proceeding and are properly disregarded by appellate court).

Propriety of Summary Judgment

Having determined that Robert's motion is a motion for summary judgment, we must address whether the trial court properly granted the motion.

A. Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A motion must state the specific grounds relied upon for summary judgment. Id. In reviewing a summary judgment, we must indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant. Valence Operating Co., 164 S.W.3d at 661.

B. Law Concerning Probate of Will as Muniment of Title

"Whether the proponent of a will is in default is normally a fact issue." Chovanec v. Chovanec, 881 S.W.2d 135, 137 (Tex. App.--Houston [1st Dist.] 1994, no writ). "Default under [section 73 of the Probate Code] means 'a failure due to absence of reasonable diligence on the part of the party offering the instrument.'" Id. (quoting Kamoos v. Woodward, 570 S.W.2d 6, 8 (Tex. Civ. App.--San Antonio 1978, writ ref'd n.r.e.)). "The case law in Texas is quite liberal in permitting a will to be offered as a muniment of title after the statute of limitations has expired upon the showing of an excuse by the proponent of the reason for the failure to offer the will." Id.

C. Shirley's Default

Shirley contends Robert did not conclusively establish she was in default and a fact question on that issue remains.

In his motion, Robert asserts Shirley found the wills of Lee Sr. and Lillie, in Lillie's bedroom, after Lillie died. Robert also asserts Shirley does not dispute that the will was not offered for probate within four years. Robert identifies a letter from Shirley's counsel to his counsel, asserting the letter shows Shirley cannot "claim she did not know what to do with the will." The letter states,

With regard to the estate of Mr. and Mrs. Poppe, I have reviewed the Wills. We can perhaps dispose of the disposition of their estate without necessity of probating the Wills. I would like your input on that issue, but I need to address other assets of the estate, such as the cattle, etc.

Robert points out the letter is dated October 14, 2003, still within four years of Lee Sr.'s death on March 19, 2000. Robert contends that, by waiting to offer the will to probate until she was sued by Robert, Shirley was in default.

In Chovanec, this Court found that a fact issue existed and summary judgment was improper on the issue of the applicant's default in a proceeding to admit a will to probate as a muniment of title 13 years after the death of applicant's wife. Chovanec, 881 S.W.2d at 138. The evidence showed the applicant was not aware it was necessary to probate the will, he did not believe probate was necessary because he inherited everything from his deceased wife, and he believed the land at issue was his separate property. Id. at 137. Additionally, the applicant was unaware of any title problems during those 13 years and, as soon as he realized there might be a problem, he immediately offered the will for probate. Id.

Here, as in Chovanec, Shirley stated she was not aware of the necessity to probate the will. The letter from her counsel shows she thought she could "dispose of the disposition of [Lee Earl Sr.'s and Lillie's] estate without the necessity of probating the Wills." Shirley filed the application to probate the will as a muniment of title shortly after Robert sued her concerning the 100 acres. Taking the evidence in the light most favorable to Shirley and indulging every reasonable inference in her favor, the evidence does not conclusively establish that Shirley was in default and a fact question remains on that issue. See id. at 138. Therefore, summary judgment on this ground was improper. See id.

D. Lillie's Default

Shirley contends Lillie's default, if any, does not bar her application to probate the will as a muniment of title. Robert responds that, because Shirley's interest in the 100 acres can only come from Lillie, Lillie's failure to probate Lee Sr.'s will within four years acts as a bar to Shirley's application to probate the will as a muniment of title.

Robert, however, as the movant, has the burden of establishing that no genuine issue of material fact existed concerning Lillie's default. See Nowak, 248 S.W.3d at 738; Tex. R. Civ. P. 166a, 1997 cmt. In his motion, Robert asserts Shirley found the wills of Lee Sr. and Lillie, in Lillie's bedroom, after Lillie died. Robert also identifies the following statement from Shirley's testimony, "We were under the impression [Lillie] knew what she was doing . . . ." Robert concludes, "It is reasonable to infer from these statements that Lillie had Lee Earl, Sr.'s will and simply chose not to probate it."

First, as noted above, the excerpts from Shirley's deposition do not contain a statement that Lee Sr.'s will was found in Lillie's room. Second, the "reasonable inference" asserted by Robert is contrary to the proper standard for a summary judgment, which is to indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant. Valence Operating Co., 164 S.W.3d at 661. The trial court erred if it granted Robert's motion on this ground.

Robert relies on the case of Faris v. Faris, 138 S.W.2d 830 (Tex. Civ. App.--Dallas 1940, writ ref'd) to assert Lillie's default bars Shirley from offering the will into probate. Specifically, in Faris, the court noted that ordinarily "only the 'default' of the party applying for the will's probate is in issue." Faris, 138 S.W.2d at 832. However, the court noted the rule applies where "the applicant was either a devisee under the will sought to be probated, or a purchaser (i.e., a grantee or vendee) of such devisee," not where the applicants "are merely devisees of a devisee." Id. The applicants in Faris could "claim no greater interest under [the will] than the testatrix herself possessed, and acquired by [her] will, no more than was owned by the [testatrix] at the time of her death." Id.

Robert contends that here, as in Faris, Shirley is merely a devisee of a devisee and is barred by Lillie's default. However, two key facts distinguish the instant case from Faris. First, Robert's own motion states Lillie conveyed a portion of the property at issue to Lee Jr. and Shirley. Thus, unlike in Faris, Shirley is not merely a devisee of a devisee, but is a grantee of Lillie's. See id. Second, in Faris, the trial court made unchallenged findings of fact and conclusions of law that the testatrix was in default and "during her lifetime, abandoned any right that she might have had under the will of her deceased husband." Id. at 831. Here, there is no such finding. In a summary judgment context, as noted above, it was Robert's burden to conclusively establish Lillie was in default, which he failed to do.

E. Section 89B of Texas Probate Code

Robert also contends in his reply brief that the Legislature's enactment of section 89B of the Texas Probate Code effectively created an absolute four-year limitations period on an application to probate a will as a muniment of title, superseding the exception for an applicant not in default found in section 73. Compare Tex. Prob. Code Ann. § 89B (Vernon 2003) with id. § 73(a). However, Robert did not raise that ground in his motion before the trial court. Instead, Robert expressly asserted, "Construing sections 73(a) and 89B together, the code allows 'a testamentary instrument' to be probated as a muniment of title after four years of the death of the testator' [sic] only if the party applying for such probate was not in default in failing to present the will for probate within the four year period." Because Robert did not assert section 89B as an absolute four-year bar, with no exception for the applicant not being in default, as a ground for summary judgment before the trial court, we do not address it. See Tex. R. Civ. P. 166a(c) ("The motion for summary judgment shall state the specific grounds therefor."); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (summary judgment motion "must stand or fall on the grounds expressly presented in the motion").

We sustain Shirley's first issue. We therefore do not need to address Shirley's second issue.

Conclusion

We reverse the judgment of the trial court and remand this cause.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.