Opinion
03-22-00671-CV
08-09-2024
Diane Carpenter, Appellant v. Estate of Verta Belle Stone, Deceased, Appellee
FROM THE PROBATE COURT NO. 1 OF T R AV I S COUNTY NO. C-1-PB-19-002403, THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING
Before Justices Baker, Triana, and Jones[*]
MEMORANDUM OPINION
J. Woodfin Jones, Justice
Karl Koebel filed an application to probate the will of Verta Belle Stone (Decedent). Diane Carpenter, the Decedent's daughter, filed an opposition to the probate application, asserting undue influence and lack of testamentary capacity. Koebel filed a no-evidence motion for summary judgment. Carpenter attempted to file a response to the summary-judgment motion the day before the scheduled hearing, but the trial court denied her motion for leave to file a late response and granted summary judgment admitting the will to probate. Carpenter perfected this appeal. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
There are few background facts that are relevant to this appeal. After the Decedent's death in August 2019 at the age of 96, Koebel filed an application to probate her will in December 2019. Carpenter filed an opposition to the probate application in February 2020, asserting undue influence and lack of testamentary capacity. She alleged that in the last few months of the Decedent's life she experienced significant dementia, as a result of which Koebel and Doug Michalk were able to exercise and did exercise undue influence over her in the creation of a new will.
On June 2, 2022, Koebel filed a no-evidence motion for summary judgment asserting that there was no evidence of undue influence or lack or testamentary capacity, see Tex. R. Civ. P. 166a(i), and sent notice setting a hearing on the motion for August 2, 2022. The motion met the requirements of Rule 166a(i). On August 1, the day before the hearing, Carpenter filed a response to the summary-judgment motion, along with a "Motion for Leave and Good Cause for Late Response or in the Alternative Motion for Continuance." The motion for leave contained unsworn statements by Carpenter's attorney that he had been under "an incredible workload," thought his response had been filed earlier, and had not found out until shortly before the hearing date that the response had not in fact been filed. Carpenter's motion correctly cited Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002), in which the supreme court held that "a motion for leave to file a late summary-judgment response should be granted when a litigant establishes good cause for failing to timely respond by showing that (1) the failure to respond was not intentional or the result of conscious indifference, but the result of accident or mistake, and (2) allowing the late response will occasion no undue delay or otherwise injure the party seeking summary judgment." Id. at 688.
The trial court denied Carpenter's motion for leave and granted Koebel's motion for summary judgment. Carpenter perfected this appeal.
DISCUSSION
In her Appellant's Brief, Carpenter's sole issue and argument is that "[t]he evidence clearly raises fact issues of capacity and undue influence." She did not argue that she had satisfied the requirements of the Carpenter opinion cited above for the filing of a late summary-judgment response. See id.
Koebel's Appellee's Brief pointed out that Carpenter's Appellant's Brief had not made any argument that the requirements set forth in Carpenter had been satisfied to permit the filing of a late response.
Carpenter subsequently filed an Appellant's Reply Brief in which she argued for the first time to this Court that she had in fact satisfied the Carpenter requirements and that the trial court had erred in overruling her motion for leave to file a late summary-judgment response. Under the circumstances, we may not consider this argument.
Texas law has been well settled for almost a century that an appellant's reply brief cannot be used to raise new issues not set forth in the appellant's opening brief. See, e.g., Krumb v. Porter, 152 S.W.2d 495, 496-97 (Tex. App.-San Antonio 1941, writ ref'd); accord Williams v. Ecom/Willmax Bellagio, L.P., No. 05-22-00098-CV, 2024 WL 2150059, at *2 (Tex. App.- Dallas May 14, 2024, no pet.) (mem. op.); In re S.C.M., No. 01-22-00964-CV, 2023 WL 3873342, at *5 (Tex. App.-Houston [1st Dist.] June 8, 2023, pet. denied) (mem. op.); Hampton v. Equity Tr. Co., 607 S.W.3d 1, 6 (Tex. App.-Austin 2020, pet. denied); Marin Real Est. Partners, L.P. v. Vogt, 373 S.W.3d 57, 72 (Tex. App.-San Antonio 2011, no pet.); Howeth Invs., Inc. v. City of Hedwig Vill., 259 S.W.3d 877, 891 n.13 (Tex. App.-Houston [1st Dist.] 2008, pet. denied); Dallas County v. Gonzales, 183 S.W.3d 94, 104 (Tex. App.-Dallas 2006, pet. denied); Howell v. Texas Workers' Comp. Comm'n, 143 S.W.3d 416, 439 (Tex. App.-Austin 2004, pet. denied). Accordingly, this issue is not properly before us.
Koebel has filed in this Court a motion to strike the Appellant's Reply Brief. Because we hold that the late-filed-response issue is not properly before us, we need not strike the Appellant's Reply Brief in its entirety. Accordingly, we dismiss Koebel's motion to strike the brief as moot.
With the absence of any response by Carpenter to Koebel's no-evidence summary-judgment motion, Carpenter has failed to raise an issue of material fact as to the issues properly raised in the motion. "If the nonmovant fails to timely file a response, the record does not affirmatively show the trial court granted leave to file, and the motion meets the requirements of Rule 166a(i), the trial court must grant the no-evidence motion." BP Am. Prod. Co. v. Zaffirini, 419 S.W.3d 485, 509 (Tex. App.-San Antonio 2013, pet. denied); accord Sahualla v. CNH Indus. Am., LLC, No. 09-23-00069-CV, 2024 WL 2340804, at *3 (Tex. App.-Beaumont May 23, 2024, no pet.) (mem. op.); Berdin v. Allstate Ins. Co., No. 02-22-00426-CV, 2023 WL 7037619, at *8 (Te x . App.-Fort Worth Oct. 26, 2023, no pet.) (mem. op.); Landers v. State Farm Lloyds, 257 S.W.3d 740, 746 (Tex. App.-Houston [1st Dist.] 2008, no pet.). The trial court therefore did not err in granting Koebel's no-evidence motion for summary judgment.
CONCLUSION
Having overruled Carpenter's sole appellate issue, we affirm the trial court's judgment.
Affirmed
[*]Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code § 74.003(b).