Louis Dickson v. John E. Swain

Affirmed and Memorandum Opinion filed September 26, 2006 Affirmed and Memorandum Opinion filed September 26, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00062-CV ____________ LOUIS DICKSON, Appellant V. JOHN E. SWAIN, Appellee On Appeal from the County Court at Law No. 3 Fort Bend County, Texas Trial Court Cause No. 17,298 M E M O R A N D U M   O P I N I O N This is an appeal from a will contest filed by a step-son against the independent executor of his step-mother=s estate. The contestant alleged the testatrix lacked testamentary capacity to execute her will. Returning a verdict against the contestant, a jury found that the testatrix had testamentary capacity on the day she signed the will. The contestant now challenges the trial court=s denial of his motion for judgment notwithstanding the verdict. We conclude the evidence is legally sufficient to support the jury=s finding, and we affirm the trial court=s judgment. I. Factual and Procedural Background Agnes Dickson died on August 24, 2002, at the age of ninety-one years. At the time of her death, she lived in Fort Bend County, Texas. Two and a half years before she died, on February 15, 2000, Agnes signed her last will and testament at the office of her attorney, John E. Swain, who was also the independent executor named in the will. Tyler Swain and Barbara Kocian witnessed the signing of the will. Less than a week after Agnes=s death, John Swain filed an application for probate of Agnes=s will. Louis Dickson, Agnes=s step-son filed a will contest alleging improper execution of the will, lack of testamentary capacity, and undue influence. A jury returned a verdict in favor of admitting the will to probate. The jury found that Agnes had testamentary capacity at the time she executed the will. The trial court admitted the will to probate upon entry of judgment on the jury verdict. Louis filed a motion for judgment notwithstanding the verdict requesting that the trial court disregard the jury=s verdict and arguing that the evidence proved that Agnes did not have testamentary capacity at the time she executed the will. Louis did not raise any other issues in this motion, nor did he file a motion for new trial challenging the factual sufficiency of the evidence. II. Issue Presented Louis presents the following issue on appeal: The issue presented by appellant is whether the trial court erred in not granting the Plaintiff=s Motion for Judgment Notwithstanding the Verdict because the evidence presented at trial was legally insufficient to support the jury=s verdict that the testatrix had the required testamentary capacity[1] at the time of the will=s execution, and whether the jury=s finding that the will had been properly executed is against the overwhelming weight of the evidence. [2] III. Standard of Review At any course of trial proceedings, judgment without or against a jury verdict is proper only when the law does not allow reasonable jurors to decide otherwise. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). The test for legal sufficiency is the same for directed verdicts and judgments notwithstanding the verdict. Id. When reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. Id. at 822. We credit favorable evidence if a reasonable factfinder could, and disregard contrary evidence unless a reasonable factfinder could not. Id. at 827. The evidence is legally sufficient if it would enable fair‑minded people to reach the verdict under review. Id. IV. Analysis Louis complains that the evidence adduced at trial is legally insufficient to support the jury=s finding that Agnes had testamentary capacity at the time she signed her will. The Texas Probate Code requires proof that the will=s testatrix had a Asound mind@ before probate will be allowed. See Tex. Prob.Code Ann. ' 88(b)(1) (Vernon 1980). Texas courts have defined Asound mind@ to mean Atestamentary capacity.@ See Chambers v. Chambers, 542 S.W.2d 901, 906 (Tex. Civ. App.CDallas 1976, no writ). Thus, to form a valid will the testatrix must have had Atestamentary capacity@ when the will was executed. See id. at 906. A testatrix has testamentary capacity when she has sufficient mental ability to understand that she is making a will, the effect of making a will, and the general nature and extent of her property. Bracewell v. Bracewell, 20 S.W.3d 14, 19 (Tex. App Houston [14th Dist.] 2000, no pet.). She also must know the natural object of her bounty, the claims upon them, and have sufficient memory to collect in her mind the elements of the business transacted and hold them long enough to form a reasonable judgment about them. Id. In a will contest, the pivotal issue is whether the testatrix had testamentary capacity on the day the will was executed. Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968). However, evidence of the testatrix=s state of mind at other times can be used to prove her state of mind on the day the will was executed provided the evidence demonstrates a condition affecting her testamentary capacity was persistent and likely present at the time the will was executed. Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex. 1983). At trial, the jury was asked the following question with regard to Agnes=s testamentary capacity to execute the February 15, 2000 will: Do you find from a preponderance of the evidence that at the time Agnes R. Dickson executed the purported will dated February 15, 2000, she had testamentary capacity, as that term is defined?[3] In response to that question, the jury answered: AYes.@ Evidence Because an analysis of the legal sufficiency of this verdict requires a review of the evidence that tends to support the jury=s finding, we consider the following relevant testimony. Testimony of Jeffrey Kuhn (Proponent Witness) John Swain, as the proponent of the will, had the burden of proving that Agnes was of sound mind at the time of the will=s execution. See Croucher, 660 S.W.2d at 57. The first witness was Jeffrey Kuhn, a lawyer who had represented Agnes around January of 1997, in a lawsuit against her step-son, Louis, the contestant of the will. This lawsuit involved the ownership of a tract of land in Fort Bend County. The case settled during trial in September 2000, less than six months before Agnes met with John Swain for the first time. Mr. Kuhn testified that Agnes grasped the legal issues quickly, and Awas very helpful in terms of being an accurate historian about her family@ and the land that was in dispute. Mr. Kuhn testified that, during his three-year attorney-client relationship with Agnes, she was mentally competent, alert, and able to understand and handle her own legal affairs. Mr. Kuhn described Agnes as being very smart and independent. Mr. Kuhn=s last face-to-face meeting with Agnes was in January 2000, when he met with her to finalize the settlement agreement for her litigation against Louis. Mr. Kuhn testified that Agnes was alert and had no problem comprehending the settlement agreement or any of the accompanying documents. Mr. Kuhn stated that nothing concerned him about Agnes=s competence during this meeting. Testimony of John Swain (Proponent Witness) John Swain, the proponent and independent executor of the will,[4] testified that he met with Agnes in January 2000, shortly after the funding of her litigation settlement with Louis. According to Mr. Swain, Agnes sought his help in another Afamilial@ dispute with her niece, Estella Snowden. At one point, Agnes, anticipating that she might need help in the future, made Ms. Snowden a co-signer on her bank account at Southwest Bank. Agnes provided all of the funds in the account. Later, she requested that Ms. Snowden remove Ms. Snowden=s name from the account, but Ms. Snowden refused. During her meeting with John Swain, Agnes asked him to draft a ADurable Statutory Power of Attorney@ so that she could replace Ms. Snowden as her agent, and appoint her long-time friend, Dorothy Benefield. After signing the Power of Attorney, Agnes asked John Swain to rewrite her will leaving the house in which she lived to Dorothy Benefield and to split the remaining property and assets among nieces and nephews. John Swain testified that Agnes stated that she did not want Louis to inherit anything because Ahe=s already gotten my money and I don=t want him to inherit anything from me.@ Ms. Snowden=s name (as a niece) was replaced with Dorothy Benefield=s name. On February 15, 2000, Agnes went to John Swain=s office to execute the will. John Swain testified that during all of his encounters with Agnes, she was alert and her memory was good. Tyler Swain (Proponent Witness) Tyler Swain, a witness to the signing of Agnes=s will, is the son of John Swain and a lawyer in his father=s firm. Tyler Swain testified that Agnes responded appropriately to every will-execution question, never strayed off the topic, appeared focused, and had no difficulty understanding any of the instructions given to her. Tyler Swain stated that he never had any Amisgivings@ or concerns regarding Agnes=s mental focus and understanding of the act in which she was engaged. He observed her sign every page of the will and execute both the will and the self-proving affidavit. Barbara Kocian (Proponent Witness) Barbara Kocian, who worked as a bookkeeper for John Swain, witnessed the signing of Agnes=s will. Ms. Kocian testified that Agnes stated that it was Aher intention to execute the will.@ According to Ms. Kocian, Agnes spoke clearly, was attentive, understood the nature of what she was doing, and always responded appropriately to questions. Ms. Kocian also witnessed Agnes sign every page of the will and execute the final page and self-proving affidavit. Louis Dickson (by deposition) (Proponent Witness) The proponent of the will also offered Louis=s deposition testimony. When asked whether he thought Agnes=s will was executed properly, Louis responded that he did not believe the will was Aproper@ because he was not there for the signing and was not included as a beneficiary. There was no testimony from Louis that would support a finding of lack of testamentary capacity. Dorothy Marie Benefield (Proponent Witness) Dorothy Benefield, one of the beneficiaries of the will, testified that she first met Agnes in 1988, and that they were good friends and spent time together. Ms. Benefied helped Agnes by driving her to various places, such as the doctor, the grocery store, and the bank. Ms. Benefied also helped take care of her by cooking her meals, bathing her, and providing a place for her to stay after she was hospitalized in April 2000, for high blood sugar levels. Ms. Benefield testified that Agnes was mentally competent, had a very sharp mind, and was very clear and cogent during conversations. Ms. Benefield drove Agnes to Mr. Swain=s office on the day Agnes executed her will. Ms. Benefied noted that Agnes=s behavior was normal and unimpaired. Ms. Benefield testified that she spent significant time with Agnes before and after the execution of the will, up until the day that Agnes passed away. Louis=s attorney, questioning Ms. Benefield in front of the jury, asked the following question, AAnd at the time she put the money in your name and her name, in your opinion, she was of sound mind.@ Ms. Benefield replied, AYes, sir.@ Dr. Jaroslaw Jac (by deposition) (Contestant Witness) Dr. Jaroslaw Jac, a doctor who met Agnes for the first time upon her admission to Sugar Land Texas Hospital on March 28, 2000, six weeks after the execution of the will, testified that her blood sugar levels became critically elevated and dangerous. Dr. Jac was her treating physician during her seven-day hospital stay, but never treated or saw her after she was discharged from the hospital. Dr. Jac testified that Agnes was mentally incompetent, had an altered mental status (moderate multiinfarct dementia), chronic hypertension and mellitus diabetes. He was unable to determine how long she had suffered from dementia, but stated that this condition was most likely related to her high blood pressure and hypertension. Dr. Jac further testified that Agnes=s confusion and lethargy were principally caused by acute hyperglycemia and that when her blood sugar levels stabilized over the course of her hospitalization, Agnes was no longer drowsy, and only partially confused. When Dr. Jac was asked about Agnes=s score on a Mini Mental Status Examination (MMSE) administered on April 4, 2000, he stated that her acute situational confusion may have affected the score. Dr. Jac confirmed that while he made a diagnosis of chronic dementia, Agnes still managed to score moderately well on the exam. Without the proper medical records, Dr. Jac could not say whether Agnes suffered from this same condition six weeks earlier, at the time she signed her will. Nora Cyrus (Contestant Witness) Agnes=s niece, Nora Cyrus was one of the beneficiaries of the will. Ms. Cyrus testified that while her aunt was recovering from a hospitalization in 1999, because of a high level of potassium, Agnes had a Adelusion@ that Dorothy Benefield was trying to kill her. However, when asked whether she had an opportunity to formulate an impression of whether her aunt was of Asound mind,@ Ms. Cyrus stated that her aunt was Abetwixt and between.@ She further testified that she did not think her aunt was of sound mind because Agnes told her that Mr. Swain was a Ablack@ man, which he is not. Ms. Cyrus also stated that she believed Louis was treated unfairly and should have received more of his Ashare@ of the estate. Lois Howard (Contestant Witness) Agnes=s grand-niece, Lois Howard, testified as a contestant witness. Her testimony centered around Agnes=s condition in 2002, two years after the execution of the will. She testified that in 2000, after Agnes=s husband (Louis=s father) had passed away, Agnes started acting differently toward Louis. When asked if she had an opinion on whether Agnes was of sound mind, Ms. Howard testified that on some days she would be herself, and on other days, she would not. Ms. Howard further testified that when her great-aunt was driven to the hospital via ambulance (shortly before her death in August 2002), Agnes accused the ambulance driver of trying to rape her. Ms. Howard stated that this Aobviously untrue@ statement made her question Agnes=s mental state. Ms. Howard, however, never observed Agnes at or near the time period of January or February of 2000, when she executed the will. Robert Dickson, II (Contestant Witness) The last witness offered against the will=s probate was Robert Dickson, II, one of Agnes=s nephews. He had very little testimony to offer regarding Agnes=s mental capacity in 2000, or even near that time. Robert Dickson testified that an incident in 1986 caused him to be concerned about his aunt=s behavior. He stated that when he went to visit her around Christmastime in 1986, Agnes told him that she was going to call the police because she believed that he was Atrying to kill her.@ After this incident, Robert Dickson did not have any contact with Agnes, other than from a distance at an occasional family gathering, such as a funeral. Legal Sufficiency Review The burden of proof was on Louis to demonstrate that no evidence supports the jury=s finding that Agnes had testamentary capacity when she executed the will. Louis asserts that the testimony summarized above is legally insufficient to support the jury=s finding that Agnes had testamentary capacity on the day she executed the will. When a party with the burden of proof challenges an adverse finding, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). If there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. Louis=s legal-sufficiency challenge to should be sustained only if the contrary proposition is conclusively established. Id. The jury, listening to the evidence presented at trial, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. Leyva v. Pacheco, 358 S.W.2d 547, 549 (Tex. 1962);Miles v. Royal Indemnity Co., 589 S.W.2d 725, 728 (Tex. Civ. App.CCorpus Christi 1979, writ ref'd n.r.e.). If there is a conflict between a witness=s direct testimony and his testimony given on cross-examination, as well as a conflict among different witnesses, it is for the jury to determine which statement is correct. Webb v. Jorns, 488 S.W.2d 407, 411 (Tex. 1973). A jury is not bound by the testimony of any one witness and may accept all, part, or none of the testimony of the witnesses and may accept part of testimony of one witness and part of another or members of the jury may draw their own deductions from all the evidence in the case. See Bayou Terrace Inv. Corp. v. Lyles, 881 S.W.2d 810, 813 (Tex. App.CHouston [14th Dist.] 1994, no writ). Though a testatrix may be aged, infirm, and sick she has the right to dispose of her property in any manner that she may desire if her mental ability meets the law=s tests. See Bell v. Bell, 248 S.W.2d 978, 991 (Tex. Civ. App.CAmarillo 1952, writ ref=d n.r.e.) (holding evidence insufficient to establish that testator lacked mental capacity). It is not for courts, juries, relatives, or friends to say how property should be passed by will, or to rewrite a will for a testatrix because they do not believe she made a wise or fair distribution of her property. Cruz v. Prado, 239 S.W.2d 650, 652 (Tex. Civ. App.CSan Antonio 1951, no writ) (stating that there is no presumption against a will because made by man advanced in age, and incapacity cannot be inferred from enfeebled condition of mind or body). The right of a grantor to dispose of her property according to her own wishes is sacred, and should be guarded with as much care, as any rights due to the living. See Salinas v. Garcia, 135 S.W.588, 590B91 (Tex. Civ. App. 1911, writ ref=d). Reviewing the above-stated evidence under the appropriate standard of review, we conclude that the evidence is legally sufficient to support the jury=s finding that Agnes had testamentary capacity when she executed her will. See Long v. Long, 196 S.W.3d 460, 466-67 (Tex. App.CDallas, no pet.) (finding the evidence legally sufficient to support court=s finding that testator was not unduly influenced). We overrule Louis=s sole issue as stated in the AIssue Presented@ section of this opinion[5] and affirm the judgment of the trial court. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed September 26, 2006. Panel consists of Justices Anderson, Edelman, and Frost. [1] Although other issues were presented in the will contest, Louis did not raise them in his motion for judgment notwithstanding the verdict, and did not raise them in this appeal. [2] In parts of his briefing, it appears that Louis is challenging both the factual and legal sufficiency of the evidence. However, he failed to raise his factual-sufficiency challenge at trial by way of a motion for new trial and therefore did not preserve his factual-sufficiency challenge for appellate review. See Tex. R. Civ. P. 324(b)(20, (3) (concluding that a motion for new trial is a prerequisite for a complaint of factual sufficiency of the evidence to support a jury finding, and a complaint that a jury finding is against the overwhelming weight of the evidence). In addition, to the extent Louis=s brief may be read to raise this issue, he has waived it by failing to present argument, authorities, and record citations supporting his contentions. Texas Rule of Appellate Procedure 38.1(h) requires appellate briefs to Acontain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@ Tex. R. App. P. 38.1(h). Appellate courts must construe the Texas Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule. Republic Underwriters Ins. Co. v. Mex‑Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004); see Tex. R. App. P. 38.9. Louis=s passing reference to a factual sufficiency challenge in his Aissue presented@ section of his brief, without more, fails to satisfy even this liberal standard. Therefore, in this appeal, we determine solely whether the evidence is legally sufficient to support the jury=s finding that Agnes had testamentary capacity at the time she executed her will. [3] The jury charge defined Atestamentary capacity@ as follows: To have testamentary capacity, the testator must have been capable of understanding the business she was engaged in, the nature and extent of her property, the persons to whom she meant to devise and bequeath it, the persons dependent upon her bounty, and the mode of distribution among them; that she must have had memory sufficient to collect in her mind the elements of the business to be transacted, and to hold them long enough to perceive, at least, their obvious relation to each other and be able to form a reasonable judgment as to them. You are instructed that to make a valid will, the person making the same must have testamentary capacity. [4] Louis asserts John Swain=s testimony should not be considered because Mr. Swain has an interest in the will. This statement is inaccurate. Although Mr. Swain was the executor of the will and would be paid fees as the executor of the will, he was not a beneficiary of the will. [5] Because we conclude that the evidence is legally sufficient to support the jury=s verdict, it is not necessary for us to reach any other arguments raised by the parties.