in the Matter of the Estate of Mario Zerboni
556 S.W.3d 482
Tex. App.2018Background
- Decedent Mario Zerboni’s January 10, 2005 will (self-proving) was admitted to probate; his wife Margaret Hart was the proponent.
- Two years later, daughter Ana Flores sought to set aside probate, alleging Zerboni’s signature on the 2005 will was forged.
- Flores attached to her summary-judgment response an expert handwriting opinion by Curtis Baggett (with CV), 29 exemplar signatures, and the questioned will; Baggett’s letter concluded the signature was forged but did not identify specific distinguishing characteristics.
- Hart moved for no-evidence summary judgment, arguing Flores had no evidence of forgery and objected to admissibility/authentication of the attachments; the probate court granted summary judgment.
- On appeal, Flores argued Baggett’s report raised a genuine issue of material fact; the court reviewed admissibility issues and whether the expert opinion was conclusory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Flores created a fact issue that the will signature was forged | Baggett’s expert report/opinion and exemplars show forgery | Flores produced no admissible, non-conclusory evidence of forgery | Held for defendant: expert opinion was conclusory and insufficient to raise a fact issue |
| Admissibility/authentication of documents attached to response | The expert report included a jurat and exemplars were attached, so they should be considered | Attachments were not properly proved/authenticated for summary-judgment evidence | Court treated the juratted report as an affidavit but found its substance conclusory; exemplars need not be reached |
| Sufficiency of an expert’s bare opinion at summary judgment | Qualified expert’s conclusion that signature was forged is enough to create fact issue | Bare ipse dixit without underlying analysis is inadequate | Court held expert’s bare conclusion insufficient to defeat no-evidence MSJ |
| Allocation of burden on forgery claim to attack a probated, self-proved will | Flores as challenger bears burden to prove forgery | Hart relied on prima facie effect of self-proved will and MSJ mechanism | Court affirmed that challenger bears burden and Flores failed to meet it |
Key Cases Cited
- Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) (standard of review for summary judgment)
- Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494 (Tex. 2010) (defendant entitled to summary judgment if it negates an element)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (evidence review standard favoring non-movant)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (more than scintilla standard for fact issues)
- Coastal Transp. Co. v. Crown Cent. Petroleum, 136 S.W.3d 227 (Tex. 2004) (expert opinion must be supported by underlying basis; credentials alone insufficient)
- Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (conclusory expert testimony cannot support judgment or create fact issue)