Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 11/15/2015 7:58:36 PM KEITH E. HOTTLE Clerk
*1 ACCEPTED 4-15-00499-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/16/2015 12:00:00 AM
KEITH HOTTLE CLERK COURT OF APPEAL NO. O4-15-00499-CV IN THE COURT OF APPEALS FOR THE FOURTH SUPREME JUDICIAL DISTRICT SAN ANTONIO, TEXAS ROBERT GOMEZ, APPELLANT V. BERNAL, INDEPEI\DENT EXECUTOR OF THE ESTATE OF LOUIS A. BERNAL. APPELLEE RESTRICTED APPEAL FROM 2015-PC-0983 ) IN PROBATE COURT IN TH ESTATE OF ) ) NUMBER 1
LOUIS S. BE]RNAL ) ) BEXAR COUNTY, TEXAS
DECE ED APPELLANT'S BRIEF t wajves oral argument. Appell
TO TH HONORABLE FOURTH COURT OF' APPEALS;
*2
COM NOW the Appellant, Robert Gomez, who files this his Brief in Support of his Restri Aptrreal.
Respectfully submitted, Reed Greene, MPA, JD 26254IH 10 West, Suite 135 Boeme, Texas 78006 Tel: (210) 826-1233 Fax: (210) 463-9241 By: /S/-__-
Reed Greene State Bar No. 08390970 Attorney for Appellant
Jeny H. Kagan Texas Bar No. 24008963 1600 Culebra Ave. San Antonio, Texas 78201 Tel. (210) 737-0333 Fax. ( 210) 738- 0088 Attorney for Appellant
Certificate of Service certily that atrue copy of the above was served on each attorney of record or accordance with the Texas Rules of Civil Procedure on NovemAergiZOl,S.
party in Reed Greene Attorney for Appellant
*3 Index of Authorities 1 3 74rh am ment to the U.S. Constitution ..... l 3 Amen e n t l 9 t o t h e T e x a s C o n s t i t u t i o n . . . . . Statutes nd Rules Tex. Ci P r a c , & R e m . C o d e $ 5 1 . 0 1 3 . . . . , . , . 4 , 6 Texas Code, $ 2 2 . 0 1 8 Texas Code,
. . . . 7 , B
522.034 1 1 Texas E t a t e s C o d e , $ 1 0 1 . 0 0 1 , 1 0 1 . 0 0 3 , 1 0 1 . 0 5 1 . . . . . . Texas Texas E tes Code, $ 254.001 8
o Texas . . . . . . . . / C o d e . 6 2 5 4 . 0 0 2 . Texas R le of Appellate Procedure 25 . . . . .. 9 Tex. R. Tex. R. Cases Eckhard v . Q r . r a l i t e s t e t a l , 7 5 1 F 3 d 6 7 4 ( 5 r n C i r . ) . . . . . . . 1 2 v. L,ynda's Boutique, 134 S.W.3d 845 (Tex. 2004) Alex Arce,997 S.W.2d 229 (Tex.l999) 10 Bunow R an cl C o. v. V al e ro E ner gy Cor p.. 997 S.W,2d 203 ( Tex. 1999) . .......13 Ingersol
S ha zo , 9 22 5.W.2 d 920 ( Tex.l996) . .......... 11 Huie v. l l l *4 Best v. ya n A uto Gro up, Inc .,786 S.W.2d 670 ( Tex.l990) .........6 I n s u r a n c e C o . o f P a , 7 5 1 S . W . 2 d 8 5 7 , 8 5 8 ( T e x . 1 9 8 8 ) . Garcia . . . . . . . . . 6 u e r , 6 8 8 S . W . 2 d 8 4 5 ( T e x . l 9 8 5 ) King v. . . . . . 6 Mont e ry v. K en ne d y, 6 69 S .W.2d 309 ( Tex.1984) . ......11 Mclennon County Children's Clinic, 627 5.W.2d390 Brown (Tex.1 In re e of Hutchins, 829 S.W. 2d 295 (Tex. App.- Corpus Christi, te92),
c o r p . v . M o f f i t , 8 1 5 s . w . 2 d 5 5 1 ( T e x . l 9 9 1 ) . . . . . . . 7 w ye rs T itl e In s. C orp., 554 S.W.2d 183, 185 ( Tex. I9l7) Stone v, ......12 S oc 'y v. A us tin N at' l B ank , 531 S.W .2d 514, 577 ( Tex.I975). Humane ...........1 1 Oilwell ivision, United States Steel Corporation v. Fryer, 493 SW 2d487 ( Wilson . Jones, 45 S.W.2d 572 (Tex.Com.App.1932,holding approved) ,.. . ., .........12
v . I ( r a h l , 1 5 5 T e x . 2 7 0 . 2 8 5 S . W . 2 d 1 7 9 ( 1 9 0 5 ) . . . . . . . . . . . 8 Gamble B u t c h e e , 8 T T e x . 6 4 3 , 3 0 S . W . 8 6 l ( 1 8 9 5 ) . . . . . . . . . . . 8 B a u m a n , 8 4 T e x . 1 7 4 , 7 9 S . W . 3 8 2 ( 1 8 9 2 ) . . . . . . . . . . 7 v. Upshaw, 66 Tex. 442, I S.W. 308 (1886) Kenned S t a g n e r , 5 5 T e x . 3 9 3 ( 1 8 8 1 ) . Fowler . . . . . . . . . . 9 State, 1 13 S.W.3d 431. 439 (Tex.App.-Texarkana 2003), Pierce v. writ refl . . . . . . . . . . . . . 8
iv *5 Delleruy, 959 S.W.2d 265 (Tex.App.-Houston Ludlow . . . . . . . . . . 1 1 [14th Di . l 1 9 9 7 , n o w r i t ) .
e v. rGuenther,9lT S.W,2d 924 (Tex.App.-Beaumont 1996, writ Hawtho denied). Enserch ploration, Inc. v. Gardner, 836 S.W.2d 739 (Tex.App. Eastland t992), w r i t . . . . . . . . 8 . Mclllhenney, 788 S.W.2d 683 (Tex.App.-Austin 1990, no writ). .......... 11 Geeslin
Lawyers Title Ins. Cotp., 537 S.W.2d 55,67 (Tex.Civ.App.- Corpus Stone v. 7 6 ) , r e v ' d o n o t h e r g r o u n d s , 5 5 4 S . W . 2 d 1 8 3 ( T e x . 1 9 7 7 ) . . . . . . . . . . . 1 2 Christi Moore Drilling Company v. White, 345 S.W.2d 550 (Tex.Civ.App.-- Moore . . . . . 1 2 6 1 , v r r i t r e f d n . r . e . ) Dallas 1
e t r o l e u m C o . v . D a n i e l M o t o r C o . " 1 4 9 S . W . 2 d 9 7 9 . . . . . . . . . . . 1 2 Phillips (Tex.Ci of Rosborovgh, 542 S.W.2d 685 (Tex.App.- In re . . . . . 7 Tex 1 9 7 6 ) , w r i t r e f d n . r . e . .
11e, 551 S.W.2d 764 (Tex. Civ. App. - Tyler, 1971) Hunt v. No writ. . . . . . . . . . . . 8 Moore Drilling Company v. White, 345 S.W.2d 550 Moore . . . . . . . . . 1 2 (Tex.Ci . A p p . - - D a l l a s 1 9 6 1 , w r i t r e f d n . r . e . ) , Specia 292 S.W.2d 818 (Tex.Civ.App.--San Antonio Specia 1 9 5 6 , w r - ^ l r ' ] - * ^ \
6 l L t w l u l l . t . w . L v. Beto, 234 S.W.2d 695 (Tex.Civ.App.--Waco 1950, no writ) . 8 Scan troleum Co. v. Daniel Motor Co.,149 S.W.2d 979 Phillips .App.--Eastland 1941, writ dism'd judgm't cor.) . l 1 (Tex.Ci
TABLE OF CONTBNTS
*6 Authorities ., iii Index Table Certi . . . . . . 2 e o f S e r v i c e . . . . . List of r l i e s a n d C o u n s e l . . . . . . . . . . . . . . . . 2 Stat t o f J u r i s d i c t i o n . Stat ofFacts and Procedural Backsround
o f R e v i e w . . . . . 4 ISSUES R E S E N T E D , . . , . . . . 4 Discussi POINT POINT POINT POINT . . . . . . . 9 F E R R O R N O . F I V E POINT . . . . . . . . 9 F E R , R O R N O . S X . POINT . . . . . . 1 0 POiNT F E R R O R N O . S E V E N . . . . . . . . . . . 1 0 F E R R O R N O . E I G H T POINT 10 POINT F ERROR NO. NINE , , . , , , . . , , 1 2 F E R R O R N O . T E N POINT 13 Conclus and Prayer
*7 Lis_t o.f Parlies g{rd Qounsel omez, Appellant, is a Devisee under an unprobated codicil of the Decedent.
, MPA, JD
Reed G 2 6 2 5 4 r 10 Vy'est, Suite 135 Boerne, exas 78006 Tel: (21 ) 826-1233 Fax: (21 ) 463-9241 N o . 0 8 3 9 0 9 7 0 State for Appellant Attorne Jeny H. Kagan No. 24008963 Texas B I 600 ebra.Ave. San An nio,'fexas 78201 T e l . ( 2 1 ) 737-0333 Fax. (21 ) 7 38 -00 8 8
for Appellant Atto , Executor of the Estate of Louis. S. Bernal, Deceased, is the Appellee. Phillip C e c i l ' res" Bain III
LEY FIRM
THE 1 5 8 0 s . ln St., Suite 200 Texas 78006 Boerne, Fax. (8 ) 8 1 6 - 3 3 8 8 Attorne for Appellee
Statement of Jurisdiction ppellants would show that this Honorable Courl has jurisdiction under TRAP 25 Appellant demonstrates that the Trial Courl committed reversible error and
and 45. hat this Court reverse and remand the judgment of the Court below' request STATEMENT OF FACTS AND PROCEDURAL BACKGROUND March 19,2015, Philip Bernal filed his Application to Probate Will and for estarnentary. Clerk's Record (CR), p. 4. ln that Application Philip Bernal stated *8 5. Decedent left a valid Will dated June2,2000, which was never revoked and is filed herewith. The Will was made self-proved as required by law. 6. 7. Upon information and belief, Decedent also left a Codicil to his Will ("Codicil"), dated February 1A,2074, which was never revoked and is filed herewith. The subscribing witnesses to the Codicil are Urlando Molina and Miriam Vasquez. whose current addresses are unknown. ion of the codicil, the beneficiaries thereto became parties to the litigation.
Id. By onal beneficiaries and leeatees were Nicole Bernal. Christopher Bernal, Aaron The ad
iley Bernal, Philip Bernal and Roberl Gomez, the Appellant. CR, p. 16. Apr:il 13,2015, the trial court held a hearing on the Application. CR, p.29-30. was given to the beneficiaries and legatees under the Codicil. See CR, p.4-40.
No no inp the trial court found. recited and ordered: At the
The Court heard the evidence and reviewed the Will and the other uments filed herein and finds that the allegations contained in the mencled Application are true; but that the Codicil filed in this cause is adrnitted to probate; that notice and citation have been given in the and for the length of time required by law; ... It is ORDERED that Wi[l, but not the Codicil, is admitted to probate, and the Clerk of this ourt is ORDERED to record the Will, with the application, in the inutes of this Court... It is ORDERED that no bond or other security is
uired and that, upon the taking and filing of the oath required by law, ters Testamentary shall issue to PHILIP BERNAL, who is appointed as
t Executor of Decedent's Estate. and no other action shall be in this Court other than the return of an Inventory, Appraisement and ist of Claims as required by law. No Notice to Beneficiaries as required y l a w . . . .
S IGN E D on Apri l 13th,2015. JSI Kelly M. Cross Judge Presiding
cR, p.
STANDARD OF REVIEW
*9 llant brings this restricted appeal, seeking reversal and remand due to eror. speaking, a restricted appeal directly attacks the judgment within six months Generall udgment was signed,by a party to suit, who did not participate in the actual after the the error he complains of is apparent from the face of the record. Tex. Civ. trial, an
e m. C od e $ 5 1.01 3; T ex. R. App. Pro. 26.1;T ex . R.App.Pro. 45;Al ex ander v. Prac. & u e , I 3 4 S . W . 3 d 8 4 5 , 8 4 8 ( T e x . 2 0 0 4 ) ; I n r e E s t a t e o f H u t c h i n s , 8 2 9 S . W . 2d295, 97 (Tex. App.- Corpus Christi, 1992) writ den. court signed the Order on April 13,2015. CR, p.29-30. Appellant filed his Restricted Appeal on July 6,2015. CR, p.35-36. This satisfied the first Notice o By virtue of his beneficiary and legatee status, Appellant and the other element.
ls named in the Codicil were parties to the probate proceeding, He did not individ in the hearing and did not file any postjudgment motions. CR, p. 33-34. If partici finds er:ror apparent on the face of the record, the Order Admitting the Will to this Cou void and must be remanded to the trial court for further proceedings. Probate
ISSUES PRESEINTED ERROR NO. ONE L COURT COMMITTED REVERSIBLE ERROR BECAUSE THERE IS
THE E OR PROOF THAT THE CODICIL WAS NOT ADMISSIBLE TO NO EVI PROBA
F ERROR NO. TWO AL COURT COMMITTED REVERSIBLE ERROR BECAUSE THERE IS
THE NO NO CE IN ANY PLEADING OR ELSEWHERE THAT THE CODICIL WAS
NOT MISSIBLE TO PROBATE; THUS, THERE IS A MATERIAL VARIANCE
BETW TFIE PLEADINGS AND THE PROOF.
F ERROR NO. THREE THE IAL COURT COMMITTED REVERSIBLE ERROR IN NOT ADMITTING DICIL TO PROBATE BECAUSE THE CODICIL COULD BE PROVED. THE C *10 POINT F ERROR NO. FOUR THE AL COURT COMMITTED REVERSIBLE ERROR BECAUSE THE PROOF OF FA IS ERRONEOUS.
POINT
F ERROR NO. FIVE
AL COURT COMMITTED REVERSIBLE ERROR BECAUSE THE
THE
ED ]PLEADING AND CITATION DO NOT REQUEST COURT PROBATE
PUBLIS
WILL
D NOT CODICIL. F ERROR NO. SIX POINT
UI-OR BREACHED I-IIS F'IDUCIARY DUTY TOWARD DEVISEES
THE THE CODICIL. LINDE
F ERROR NO. SEVEN
POINT
UTOR COMMITTED FRAUD ON THE COURT AND ON THE CODICIL
THE E BENE IARIES.
F ER.ROR NO. EIGHT
POINT
UTOR BREACHED DUTY OF ORDINARY CARE TO THE
THE E
BEN
IARIES OF THE CODICIL.
F ERROR NO. NINE POINT AL C]OURT ERRED BY NOT REQUIRING APPELLEE TO THE E APPELLANT AS A NECESSARY PARTY. JOIN T
DISCUSSION F ERROR NOS. ONE. TWO AND THREE POINT AL COURT COMMiTTED REVERSIBLE ERROR BECAUSE THERE iS THE ENCE OR PROOF THAT THE CODICIL WAS NOT ADMISSIBLE TO NO EVI PROBA E. AL COURT COMMITTED REVERSIBLE ERROR BECAUSE THERE IS THE T
CE IN ANY PLEADING OR ELSEWHERE THAT THE CODICIL WAS NO NO MISSIBLE TO PROBATE: THUS" THERE IS A MATERIAL VARIANCE NOT BETW T]F{E PLEADINGS AND THE PROOF. *11 THE AL COURT COMMITTED REVERSIBLE ERROR IN NOT ADMITTING THE DICIL TO PROBATE BECAUSE THE CODICIL COULD BE PROVED.
pafty may appeal a finaljudgment to the courl of appeals by petition for writ of error by mplying with the requirements set forth below: iling Petition. The party desiring to sue out a writ of error shall file with the (a) he courl in which the judgment was rendered a written petition signed by him or clerk of by his rnev. and addressed to the clerk.
o Participating Party at Trial. No party who participates either in person or by his in the actual trial of the case in the trial court shall be entitled to review by the co of appeals through means of writ of error.
(c) equisites of Petition. The petition shall state the names and residences of the versely interested, shall describe the judgment with sufficient certainty to parties identify t and shall state that the appellant desires to remove the same to the court of appeals r revision and correction. P rac . & R em. C od e A nn. $ 51.013 ( Ver non 1986) ; Tex. R. App.P.45; Hutchins, Tex.Civ 292 S.W.2d 818 (Tex.Civ.App,--San Antonio 1956, writ refd I d . ; S n.r.e.).
ppellant challenges the probate of decedent's will by writ of error. He is an person" inthe decedent's estate. See Estates Code, $22.018. He is entitledto the probate of the will by writ of error. Hutchins, Id. determining a "no evidence" question, an appellate court considers only that and reasonable inferences therefrom that tend to support the findings of the trier
of facts, isregarding all contrary evidence and inferences. Best v. Rlran Auto Group. Inc., 78 S .W.2d 6 70,6 1 1(T ex .1990); Kjng v. Bauer , 688 S.W,2d 845, 846 ( Tex.1985).
*12 a scintilla of evidence supports the findings, they must be upheld. Garcia v. f P a . , 7 5 1 S . W . 2 d 8 5 7 , 8 5 8 ( T e x . 1 9 8 8 ) . I n d iding whether the petitioner for a writ of error has met the requirement that grror t' appalent from the face of the record," the court "may consider all of the papers the appeal, including the statement of lacts." DSC Fin. Corp. v. Moffit' 815 on file i s.w.2d 51 (T'ex.1991).
attack by writ of error on a judgment probating a will must comply with the A d and fourth requirements set out in Brown, 627 S.W.2d at392. However, there flrrst, thi irement that petitioner be a parly to the suit; all that is required is that the is no be an "interested pafty" in the estate. Specia, 292 S.W.2d at 819. Appellant petitio meets al of the requirements necessary to appeal by writ of error'
Code requires that certain elements be proved to the satisfaction of the court
T
he ad:mission of a will to probate and the issuance of letters testamentary or of prior to ration. It is the duty of the court in a proceeding to probate a will to determine admini ill bt;ine offered for probate meets the statutory requisites before admitting it to that the In re Estate of Rosborough, 542 S.W.2d 685, 688 (Tex. App.--Texarkana1976), probate. writ n.r.e).
s the Court knows, a testamentary writing that is supplementary to an earlier inst t i s o a l l e d a . . c o d i c i l , ' . @ , 8 4 T e x . l ] 4 , 1 9 S ' w . 3 8 2 It also includes a testamentary instrument that directs how property may not be (1 8e2). of. lfex. Estates Code, $22.034. The document marked "Addendum to Original dispo a "codicil". As used in the Estates Code, the term "will" includes a codicil. will", tes Code Ann. $22.034(1). In its operation and effect, a codicil may add to or Tex. *13 provisions of a will. Hunt v. Knolle, 551 S.W.2d764 (Tex. Civ. App.- modify 77) no writ. A court may not prohibit a person from executing a codicil to an Tyler, 1 'Iex. existing ill. Estates Code Ann. $253.001(b). "material variance" between the pleadings and proof is fatal and renders a void. Enserch Exploration.Inc. v. Gardner, 836 S.W.2d739 741 (Tex' App' judgme -Eastl 1992), The variance is material if it operated to the Respondent's surprise or prejudi d his rights. Pierce v. State, 1 13 S.W.3 d 431.439 (Tex. App.-Texarkana
Llant was prejudiced by the failure to admit the codicil as he did not receive 2003) . under it, so the judgment is void. his beq
witnesses to the Codicil, Urlando Molina and Miriam Vasquez, the notary, Reyes, and the attorney, if any, who prepared it, are and were competent Appellant stipulates that the codicil was not self-proving but would show it ible of proof. The Estates Code requires every last will and testament, if not
was the handwriting of the testator, to be attested by two or more "credible wholly i " TFIX. ESTATES CODE S 254.001. It is long settled that "credible witness" is wit with "competent witness." Lehmann v. Krahl, 155 Tex' 210,285 S'W'2d synony (1955); Gamble v. Butchee, 87 Tex. 643,30 S.W. 861 (1895); Kennedy v. r 7 9 , 7 66 Tex. 442, I S.W. 308 (1336). A competent witness to a will is one who no pecuniary benefit under its terms. Scandurro v. Beto,234 S.W.2d 695, 698
recei (Tex. C . App.--Waco 1950, no writ). See also Lehmann,285 S'W'2d at 180 (husband
witness to will under which wife was legatee); Gamble, 30 S.W. at 862 (wife credibl witness to will under which husband was legatee). Conversely, a person credibl interest as taking under a will is incompetent to testify to establish it' See TEX. TATES CODE $ 25a.002; Fowler v. Stagner, 55 Tex. 393,397 (1881); Nixon, *14 298. The Trial Courl ened by not allowing the attorney or one of the 38 Tex. witn to prove the Codicil.
F ERROR NOS. FOUR. FIVE AND SIX
POINT
AL C]OURT COMMITTED REVERSIBLE ERROR IN NOT ADMITTING THE ICII- TO PROBATE BECAUSE THE PROOF OF'FACTS IS ERRONEOUS. THE C L COURT COMMITTED REVERSIBLE ERROR BECAUSE THE PROOF THE AND OTHER FACTS IS ERRONEOUS BECAUSE IT DOES NOT OF DE N A},IY DEFECT IN THE CODICIL WHICH WOULD PREVENT iTS MENTI ION O PROBATE. ADMI AL COIJRT COMMIT]'ED REVERSIBLE ERROR BECAUSE THE THE GS AND CITATION DO NOT REQUEST COURT PROBATE WILL AND PLEAD NOT E CODICiL.
"Proof of Death and other Facts", unlike the Application, which was states as follows: "ljpon information and belief, Decedent also left a Codicil to publi "Codicil"), dated February 10,2014, which was never revoked, as far as I his will R, Pp. 17-18. It gives no indication there is a problem with the Codicil. Id. know." tor's Application to Probate will states: The pon information and belief, Deceder-rt also left a Codicil to his will icil"). dated February 10. 2014, which was never revoked and is led hr:rewith. The subscribing witnesses to the Codicil are Urlando olina and Miriam Vasquez, whose current addresses are unknown.
cR., p. . The notary to the Codicil is Angelina Reyes, who is also a witness. Id. utor amended his Application, and it is silent as to the Codicil. CR., p' The Ex e Citation, published on March 19,2015, states: 19-20.
At,L PERSONS interested in the Estate of LOUIS S. BERNAL, ECEASED. AKA LOUIS S. BERNAL, JR., number 2015 PC0983, HILIP BERNAL has filed in the Probate Court No. I of Bexar County, exas, an application for the probate of the last will and testament and
*15 icil(s) of LOUIS S. BERNAL, DECEASED, AKA LOUIS S'
ERNAL, JR...
cR., p 7 The Amended Application was not published as of the date of the cil.ation was never issued on the Amended Application. The hearing Application did not put Appellant on notice of any defect in the Codicil. in the Application or the Amended Application gives any notice that the Nothing deficient; therefore, the Courl erred in not admitting the Codicil to Codicil probate. POINT F ERROR NOS. SEVEN. EIGHT AND NINE
ECUTOR BREACHED HIS FIDUCIARY DUTY TOWARD DEVISEES THE E TI-{E CODICIL, L|NDE 'fHE
ECUTOR COMMITTED FRAUD ON THE COURT AND ON THE CODICIL E BENEF IAR.IES. BREACHED DUTY OF ORDINARY CARE TO THE THE BENEFCIARIES OF THE CODICIL.
enerally, for a party to establish a claim for breach of a fiduciary duty, there a fiduciary relationship between the plaintiff and defendant, the defendant must ex breached its fiduciary duty to the plaintiff, and the defendant's breach must must ha injury to the plaintiff" or benefit to the defendant. See Burrow v. Arqe, 997 result i s.w.2d , 238-39 (Tex. 1 999); Hawthorne v. Guenther, 9 I 7 S.W.2 d 924, 934-3 5 (Tex. ont 1996, writ denied). App.-
e relationship between an executor and the estate's beneficiaries is one that to a fiduciary duty as a matter of law. Huie v. DeShazo,922 5.W,2d920,923
glves 11 ). An executor's fiduciary duty to the estate's beneficiaries arises from the (Tex.1 t 0 *16 s stafirs as trustee of the property of the estate. Humane Soc'y v. Austin Nat'l execut 1 S.W.2d 514,571 (Tex.1975). Under the Estates Code, a decedent's estate Bank,5
ly vests in the devisees, legatees, and heirs at law ofthe estate, subject to o f the d ece d ent' s d ebts. TEX. ESTATES COD E $ 101.001, 101.003, 101.051. payme tor thus holds the estate in trust for the benefit of those who have acquired a The ex vested ht to the decedent's property under the will. See id.
fiduciary duties owed to the beneficiaries of an estate by an independent include a duty of full disclosure of all matelial facts known to the executor that
executo 'ect the beneficiaries' rights. Montgomery v. Kennedy, 669 S.W.2d 309, 313 might a ) (trustees of trust and executors of estate had fiduciary duty of full disclosure (Tex.l
ciary); see Huie, 922 S.W.2d at923. A fiduciary also "owes its principal a high to bene faith, fair dealing, honest performance, and strict accountability." Ludlow v. duty of [14th Dist.] 1997,no writ)' When a.n , 959 S.W.2d265,279 (Tex. App.-Houston De indepen nt executor takes the oath and qualifies in that capacity, he or she assumes all duties a fidrrciary as a matter of law. Humane Soc'y, 531 S.W.2d X 5ll; Geeslin v.
, 788 S.W.2d 683, 686-87 (Tex. App.-Arlstin 1990, no writ). McEl fiduciary relationship existed between the independent executor and Appellant ficiary under the Codicil, which included various duties, including the duty to
a s a commingling of funds and the duty to disclose all material facts. However, it refrain ic that Wilson is axio
s stated above. the Executor's duties fuli disclosure of all material facts known eeutor that might affect the beneficiaries' rights. There is nothing in the record to
to the 1 l *17 disclosure. The elements of actionable fraud are: (1) thatamaterial ion was made; (2) that it was false; (3) that when the speaker made it he knew
se or made it recklessly without any knowledge of the truth and as a positive ; (4) that he made it with the intention that it should be acted upon by the party;
(5) that party acted in reliance upon it; (6) that he thereby suffered injury. Stone v. ., 554 S.W.2d 183, 185 (Tex. l97l); Oilwell Division. United tion v. Frver, 493 S.W.2 d 487 (Tex.l973); Wilson v. Jones, 45 s.w.2d 7 2 (1' ex.Com. App. | 932, holding approved). When the alle ged fraud arises f a failure to disclose facts, a duty, because of either a confidential or fiduciar1, because relati ip. to disclose those facts must exist in order to make such failure actionable as
.,531 S.W.2d 55,61 ( Tex. Ci v. App.- Cor pus fraud. 976), rev'd on other grounds,554 S.W.2d l83, 185 (Tex. 1917); Moore & Christi v. White, 345 S.W.2d 550 (Tex. Civ. App.--Dallas 1961, writ refd n.r .); Phillips Petroleum Co. v. Daniel Motor Co.,I49 S.W.2d 979 (Tex. Civ. tland 1941, writ dism'd judgm't cor.). The Executor concealed material facts App.-- lant Gomez as beneficiary under the Codicil and committed fraud. from A is the breach of the duty of ordinary care which causes a Plaintiff damages. Negli
., 751 F3d 614 6tn Cir.). There is nothing in the record to the ordinary care, if any, the Executor exercised in this case toward the demons under the Codicil. The Executor is liable for breach of fiduciary duty, benefici negligence toward the beneficiaries under the Codicil, and the Order fraud, Will to Probate should be reversed and remanded for fuither proceedings. Admitti
I 2 *18 F' ERROR NO. TEN AL COURT ERRED BY NOT REQUIRING APPELLEE TO THE E AT'PELLANT AND OTHER BENEFICIARIES LINDER THE CODICIL AS JOIN ARY PARTIES. NECES
ppellant and the other beneficiaries and legatees under the codicil were denied their ri ts to due Drocess under the 14tl' amendment to the U.S. Constitution and l9 to the Texas Constitution. A party to a suit should join all claims that Amend ry. Ingersoll-Rand Co. v. Valero Energy Corp .,997 S.W.2d 203,207 (Tex, are com leee). claim is compulsory if it meets the following criteria;
1) The claim must be within the court's subject-matter.iurisdiction. Id. Appell t's claim is for money in the estate of the Decedent ) The claim must not be pending as a suit in another court. Id. Appellant ht to collect the money due under the codicil in another court. has not The claim must be matured and owned by the pleader when he files his ) appeara . !!. The testamentary gift from Decedent to Appellant matured at Mr. Bernal' death and is owned by the Appellant.
The claim must arise from the same transaction or occurrence. Id. The ) claim ar ses from the only codicil to the will of Decedent. The claim must be against the opposing party in the same capacity in ) party filed his claim. Id. Appellant was a friend and caregiver to the All parlies must be available. Id. Based on information and belief, believes that the additional devisees under the codicil are grandchildren or Appell tives of the Decedent. l'he claim of Appellant and the other beneficiaries under other re
il rreet all the requirements of the Ingersoll case. The trial court, therefore, the Cod reversible error by not requiring that the additional parties be joined in the comml . If the other devisees are minors, the Trial Court should appoint an attorney ad litigatio litem fo them.
1 a
CONCLUSION AND PRAYER
*19 HEREFORE, PREMISES CONSIDERED, Appellant requests that the Court judgment admitting the Will but not the Codicil to Probate, and for such other reverse and furt er relief to which Appellant may show himselfjustly entitled.
Respectfully submitted, Reed Greene, MPA, JD 26254IH 10 West, Suite 135 Boerne, Texas 78006 Tel: (210) 826-1233 Fax: (210) 463-9241 By: /S/
Reed Greene Stare Bar No. 08390970 Attorney for Appellant
Jerry H. Kagan Texas Bar No. 24008963 1600 Culebra Ave. San Antonio, Texas 7820I Attorney for Appellant