Date: 09-23-2017

Case Style:

Case Number: 03-17-00003-CV

Judge: Field

Court: Texas Court of Appeals, Third District on appeal from the Probate Court No. 1 of Travis County

Plaintiff's Attorney: Maura Phelan and Cynthia Veidt

Defendant's Attorney: Marilyn Poole for Jeanie Dell Collins Carr

Steve Pitzner for Alice Lawson

Description: In this consolidated appeal Alice Lawson (Alice) challenges the probate court’s
judgment confirming an arbitration award resolving her will contest, and Jeanie Dell Collins Carr
(Jeanie) challenges the court’s adverse summary judgment in her separate will contest.1 See Tex.
Est. Code § 32.001(c) (final order issued by probate court is appealable to court of appeals). As
urged by Ernest Boyd Collins (Boyd) and Ella Elizabeth Collins (Elizabeth), we will affirm both the
judgment confirming the arbitration award and the probate court’s summary judgment order.
1 The appellants and appellees, as well as other parties to and individuals with an interest in
the underlying proceedings, are relatives and several of them share a common surname. To avoid
confusion, we will refer to these individuals by their given names.
BACKGROUND
Ella Lee Myers Collins (Ella) and Talferd Gabriel Collins (Talferd Gabriel) were the
parents of eleven children: Silas Turner Collins (Silas), Talferd Myers Collins (Talferd Myers),
Alice, Boyd, Elizabeth, Phyllis Elaine Davis (Phyllis), Ronald Martin Collins (Ronald), Edwin
Charles Collins (Edwin), Jeanie, Cecelia Jo James (Cecelia), and Lambert Elliot Collins (Lambert).
When Talferd Gabriel died in 1997, his estate was transferred into a testamentary trust created
by his 1997 will (the Collins Family Trust). Ella died in 2014 leaving a will dated May 14, 2012
(the 2012 Will), which named Boyd, Elizabeth, and Ronald as independent executors. Boyd and
Elizabeth filed an application to admit the 2012 Will to probate. Ronald also filed a separate
application for probate of the 2012 Will. Shortly thereafter, Alice filed a petition asserting that
(1) the 2012 Will was not valid because Ella lacked legal or testamentary capacity to execute that
will and (2) the 2012 Will was executed due to the fraud or undue influence of Boyd or Elizabeth.
Alice also objected to the appointment of Boyd and Elizabeth as co-executors under the 2012 Will
and later amended her petition to include a request to admit a “lost will” of Ella’s to probate.2
In October 2015, Boyd, Elizabeth, Ronald, Silas, and Alice, at that time the only
parties to the probate proceedings, participated in a mediation that resulted in a Rule 11 Mediated
Settlement Agreement (the MSA). The MSA was signed by each participant in the mediation as
well as the mediator and the attorneys representing Alice, Ronald, and Boyd and Elizabeth. The
terms of the MSA provided that Alice would withdraw her contest to the probate of the 2012 Will
and agree to the appointment of Boyd and Elizabeth as independent executors. The MSA also
According to 2 Alice and Jeanie, the lost will was a 1997 “mirror will” to Talferd Gabriel’s.
2
provided for some modifications to the terms of the 2012 Will, including (1) deeding Ronald title
to the “Homestead ‘Gert’ 29 acres,” (2) the parties’ agreement to waive any individual residuary
interest greater than 1/10 and directing the executors to divide such residuary interest equally among
Ella’s ten surviving children, and (3) conveying Boyd’s one-half undivided interest in a 30-acre
parcel of land to the children of Talferd Myers, who had predeceased Ella. Additionally, Ronald
agreed to decline to serve as a co-independent executor. The parties agreed that all other terms of
the 2012 Will would be probated. The MSA also provided that Elizabeth would pay attorneys’ fees
of $10,000 to Ronald and attorneys’ fees of $20,000 to Alice. In an addendum to the MSA, the
parties agreed that Alice would receive “$50,000 as her cash distribution from the [Collins Family
Trust] (in accordance with the terms of Talferd [Gabriel] Collins’s will)” and that the trustees of the
Collins Family Trust would wind up the trust and make final distributions no later than March 2016.
The parties to the MSA consented to settlement documents (to be prepared after the mediation) that
would include full releases of all claims and the nonsuit of Alice’s claims.
The MSA also included the following:
H. Any disputes as to the wording of settlement documents or performance hereof
shall be submitted to the Mediator, Claude Ducloux, for binding arbitration.
Disputes Arising from This Agreement. If any dispute arises with regard to the
interpretation or performance of this Mediated Settlement Agreement or any of its
provisions, including the necessity and form of closing documents, the parties agree
to try to resolve the dispute by telephone conference with Claude Ducloux, the
mediator who facilitated this settlement. If the parties are unable to agree, the parties
agree that Claude Ducloux shall serve as the sole arbitrator of disputes regarding the
interpretation or performance of this Mediated Settlement Agreement or any of its
provisions. In addition, the parties agree that Claude Ducloux shall serve as the sole
arbitrator of disputes concerning the form of the Release or pleading. The parties
agree that, at the sole discretion of the arbitrator, the arbitration of disputes may be
3
by written submissions without a hearing. The parties agree that the arbitration shall
be binding arbitration.
Counsel for Boyd and Elizabeth and counsel for Alice then began exchanging drafts
of the settlement documents contemplated by the MSA, which included the agreed upon terms
and releases. According to Boyd and Elizabeth, after the attorneys had agreed to the form of the
settlement documents, Alice expressed to Ella’s heirs who were not parties to the probate proceedings
that she did not intend to sign the proposed settlement documents and that Boyd and Elizabeth
were unfit to serve as co-executors because of their alleged theft from Ella before her death. Also
according to Boyd and Elizabeth, Alice encouraged her non-party siblings to file will contests and
to oppose the appointment of Boyd and Elizabeth as co-executors of Ella’s estate. Ronald’s counsel
did not respond to communications regarding the form of the settlement documents.
After Alice and Ronald refused to sign the settlement documents and Alice failed to
withdraw her will contest, Boyd and Elizabeth filed a motion to enforce the MSA and to enter
judgment in accordance with its terms. After a hearing, the court ordered the parties to the MSA to
submit their disputes about the form of the settlement documents to Claude Ducloux for binding
arbitration. On the day before the hearing, Jeanie had appeared in the probate proceedings and filed
a pleading titled “Original Answer of Interested Person” in which she questioned the validity of the
2012 Will and objected to 3 the appointment of Boyd and Elizabeth as executors. At the hearing,
3 The pleading states that Jeanie:
has reason to believe that the Decedent was not of sound mind or memory nor was
the decedent capable of making a valid Will at the time by virtue of the fact that
Decedent lacked the testamentary capacity and/or said Will was produced under
4
Jeanie also objected to enforcement of the MSA and stated that she should be allowed to participate
in the arbitration. The court instructed Jeanie that she could file her own pleadings challenging
the 2012 Will and the appointment of executors and making any other claims regarding Ella’s estate,
but that (1) her claims did not preclude other heirs from entering a settlement agreement and
(2) because she was not a party to the MSA, she had no standing to participate in the arbitration
proceeding.
The arbitration hearing was held on April 20, 2016, and after the hearing the arbitrator
exchanged emails with counsel for the parties addressing their proposals and objections to specific
language in the proposed settlement documents. The arbitrator signed an Arbitrator’s Award on
April 22, 2016. Exhibit A to the Award was the final form of the settlement documents contemplated
by the MSA as determined by the arbitrator. The following week, Jeanie filed a pleading titled
“Opposition to Probate of Will and to Issuance of Letters Testamentary” in which she again
challenged the validity of the 2012 Will on the alternative grounds that (1) Ella lacked testamentary
capacity to make that will, (2) the 2012 Will was executed as a result of undue influence exerted on
Ella by Boyd and Elizabeth, or (3) the 2012 Will was a forgery. Jeanie also opposed the appointment
of Boyd or Elizabeth as co-independent executors.
undue influence, nor did decedent intend to revoke an earlier yet unproduced Will of
1997 which contained provisions that expressly mirrored the terms of the Last Will
and Testament of Talferd Gabriel Collins, deceased, whose Will is subject of another
proceeding before this Court, said proceeding being numbered 68585; however,
Respondent [Jeanie] does not herein contest or challenge Decedent’s 2012 Will at
this time.
5
Although Boyd, Elizabeth, and Jeanie had exchanged written discovery requests,
including request for disclosures, beginning in March 2016, by June of that year Jeanie had not
designated any testifying experts and had produced no documents to support her claim that the
2012 Will was not valid. Boyd and Elizabeth then filed a no-evidence motion for partial summary
judgment on Jeanie’s will-contest claims. In July, Jeanie filed a motion seeking to release the
original 2012 Will to a forensic handwriting expert, identified as Dale Stobaugh, but did not set
that motion for hearing. The court held a hearing on Boyd and Elizabeth’s no-evidence summary
judgment motion in November 2016, after which it sustained objections to certain evidence
proffered by Jeanie and granted summary judgment against her as to her will-contest claims. The
court also denied Jeanie’s request to have the 2012 Will examined by a forensic handwriting expert.
Jeanie then voluntarily non-suited the remainder of her claims in the probate proceeding and filed
a notice of appeal from the order granting summary judgment.
Beginning in July 2016, Alice opposed confirmation of the Award and entry of
judgment in accordance with its terms. She filed numerous pleadings seeking to vacate or set aside
both the MSA and the Award. Despite not having been a party to the MSA or to the arbitration,
Jeanie also filed pleadings asserting that the Award should be vacated or set aside. After granting
summary judgment on Jeanie’s will-contest claims, the court held a bench trial to address Boyd and
Elizabeth’s motions for confirmation of the Award and to address Alice’s motions seeking to vacate
or set aside the Award and the MSA. After conducting a hearing, the court signed an order confirming
the Award and ordering that it be enforced according to its terms. The court also rendered judgment
dismissing Alice’s claims. Alice then filed a notice of appeal.
6
DISCUSSION
Alice’s Appeal4
Alice’s appellate arguments are directed at challenging the trial court’s order confirming
the arbitration award that determined the form of the settlement documents contemplated by the
MSA reached by Boyd, Elizabeth, Alice, Ronald, and Silas after participating in a mediation with
Ducloux serving as the mediator. We review a trial court’s decision to confirm or vacate an arbitration
award under a de novo standard of review. D.R. Horton-Tex., Ltd. v. Bernhard, 423 S.W.3d 532,
534 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Texas law favors arbitration and thus
review of arbitration awards is very narrow. See Hoskins v. Hoskins, 497 S.W.3d 490, 494 (Tex.
2016); Southwinds Express Constr., LLC v. D.H. Griffin of Tex., Inc., 513 S.W.3d 66, 70 (Tex.
App.—Houston [14th Dist.] 2016, no pet.). We afford the award great deference, indulging reasonable
presumptions in its favor and none against it. CVN Grp., Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex.
2002). The Texas General Arbitration Act (TAA) requires the trial court to confirm the award
“[u]nless grounds are offered for vacating, modifying, or correcting [the] award under Section
171.088 or 171.091.” Tex. Civ. Prac. & Rem. Code § 171.087.5 Under the TAA a party may avoid
4 Alice’s brief does not, in many respects, comply with the Texas Rules of Appellate
Procedure, which require, among other things, that a brief contain clear and concise argument for
the contentions made, with appropriate citations to authorities and to the record. See Tex. R. App.
P. 38.1. We will, however, endeavor to address the complaints contained in Alice’s brief that are
supported by legal argument and will consider the evidence and authorities that she has identified
to the Court. It is not our duty to, nor will we, review the record, research the law, or consider legal
arguments that are not included in Alice’s brief. See Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.
App.—El Paso 2007, no pet.) (“It would be inappropriate for this Court to attempt to re-draft and
articulate what we believe Valadez may have intended to raise as error on appeal.”).
5 No party contends that the Federal Arbitration Act applies, and we therefore apply the
Texas General Arbitration Act to this dispute.
7
confirmation of the arbitrator’s award “only by demonstrating a ground expressly listed in section
171.088.” Hoskins, 497 S.W.3d at 495. The TAA “leaves no room for courts to expand on those
grounds” in vacating an arbitration award. Id. at 494. A party seeking to vacate an arbitration
award may not invoke extra-statutory or common law reasons for vacatur. Id. at 495. The common
law allows a court to set aside an arbitration award only if the decision “is tainted with fraud,
misconduct, or gross mistake as would imply bad faith and failure to exercise honest judgment.”
Riha v. Smulcer, 843 S.W.2d 289, 292 (Tex. App.—Houston [14th Dist.] 1992, writ denied).
Arbitration awards are entitled to great deference by the courts “lest disappointed litigants seek to
overturn every unfavorable arbitration award in court.” Crossmark, Inc. v. Hazar, 124 S.W.3d 422,
429 (Tex. App.—Dallas 2004, pet. denied).
In what we take to be her first appellate issue,6 Alice asserts that she presented the
trial court with evidence “raising substantive issues as to the propriety of both the original mediation
and/or the subsequent arbitration . . . which contained issues of duress and/or coercion by Ducloux
and [Alice’s then-counsel Scott Morrison].” She contends that the trial court “elected not to admit
the Lawson affidavit which appears to be error.” We understand Alice to complain that the trial
court erroneously excluded evidence that would have demonstrated that Alice was coerced into
signing the MSA. Even assuming that could constitute a ground for vacating the arbitration award,7
6 Alice’s brief presents her complaints in a series of numbered paragraphs that we will treat
as her appellate issues.
7 Allegations of fraud in the inducement of the underlying contract are matters for the
arbitrator to decide, whereas fraud concerning the inducement of an arbitration clause in a contract
must be decided by the trial court. Pepe Int’l Dev. Co. v. Pub Brewing Co., 915 S.W.2d 925, 930
(Tex. App.—Houston 1996, no writ) (citing New Process Steel Corp. v. Titan Indus. Corp., 555
F. Supp. 1018, 1022 (S.D. Tex. 1983)).
8
the reporter’s record from the hearing on the motion to confirm the arbitration award indicates that
counsel for Alice did not offer any affidavit into evidence nor did Alice make an offer of proof.
Consequently, Alice failed to preserve a claim that the trial court erred in excluding evidence. See
Tex. R. Evid. 103(a)(2). Alice did, however, attach an affidavit to her opposition to the motion to
enforce the arbitration award and although it is not clear from the brief, we will assume that this
is the affidavit to which Alice refers. Unless specifically permitted by statute or rule, affidavits do
not constitute evidence in contested cases. Ortega v. Cach, LLC, 396 S.W.3d 622, 630 (Tex.
App.—Houston [14th Dist.] 2013, no pet.); Stephens v. City of Reno, 342 S.W.3d 249, 253 (Tex.
App.—Texarkana 2011, no pet.) (“[A]bsent authority to the contrary, affidavits are not, as a general
rule, admissible in a trial as independent evidence to establish facts material to the issues being
tried.”). Alice has not identified any authority to support the admissibility of her affidavit. See
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004) (“The proponent of
hearsay has the burden of showing that the testimony fits within an exception to the general rule
prohibiting the admission of hearsay evidence.”). The trial court would not have erred in refusing to
admit “the Lawson affidavit” even had it been offered into evidence. Alice’s first issue is overruled.
In what we will treat as Alice’s second appellate issue, she contends that her counsel
“presented a medical report questioning the competency of [Alice] at the time of the mediation and
the later alleged arbitration” and that the trial court “reviewed the medical report and then elected
not to admit said report on the basis of hearsay.” According to Alice, “such action(s) would appear
to be error by the Trial Court in that the medical report could show the Court the incompetence of
[Alice] making her participation in the referenced proceedings void.” The only mention of any
medical report made at the hearing on the motion to confirm the arbitration award is as follows:
9
Counsel: We have a medical report here.
The Court: A medical report, sir, is not going to get in here without having the
person who created the report to be here and testify as to what it is
and be subject to cross-examination. [] I don’t see any witnesses in
this courtroom that can testify. You have a medical record, but
there’s going to be an objection to hearsay. It is not going to come in.
How are we going to get the evidence in?
No further reference to any medical report was made at the hearing, and there was no offer of proof
that would inform the trial court or this Court of the substance of the medical report. Alice has not
preserved her claim that the trial court would have erred in excluding the medical report. Moreover,
a record of a diagnosis is excluded by the rule against hearsay unless certain qualifying conditions
are shown “by the testimony of the custodian or other qualified witness, or by an affidavit or
unsworn declaration that complies with Rule 902(10).”8 Because Alice did not attempt to elicit that
testimony from a qualified witness, the trial court would not have erred in excluding the report had
counsel attempted to offer it into evidence. We overrule Alice’s second issue.
In her third and fifth issues, Alice contends that the arbitration award is not “final,
appropriate, and/or binding” because she has to date refused to sign the settlement documents as
drafted by the arbitrator. She asserts that for this reason the trial court erred in confirming the Award
and ordering that it be enforced according to its terms. An arbitration award, like a court order, is
final and effective once it is signed by the arbitrator. The purpose of the arbitration was to finalize
the form of the settlement documents, which the arbitrator did. Attached as Exhibit A to the Award
8 These conditions include that the record was made at or near the time by someone with
knowledge, the record was kept in the course of a regularly conducted business activity, and making
the record was a regular practice of that activity. See Tex. R. Evid. 803(6) (records of regularly
conducted activity exception to rule against hearsay).
10
is the arbitrator’s final draft of the “Settlement Agreement and Release of Claims,” the form of
which he determined “embraces and is consistent with the intent” of the parties to the MSA. The
Award orders the parties to sign the Settlement Agreement and Release of Claims as drafted by the
arbitrator and attached as an exhibit to the Award. The trial court confirmed the arbitration award
and ordered “that the award shall be enforced according to its terms.” The Award is binding, and
Alice’s failure to sign the settlement documents as drafted by the arbitrator does not disturb the
finality of the Award or its binding effect on the parties to the arbitration. Instead, Alice’s failure
to sign the Settlement Agreement and Release of Claims constitutes a violation of the trial court’s
clear order that she do so. We overrule Alice’s third and fifth issues.9
In her fourth issue, Alice complains that Jeanie was not permitted to participate in the
arbitration proceedings and that, as a consequence, the trial court should have vacated the arbitration
award. As an initial matter, Alice does not have standing to bring a claim that Jeanie’s rights were
somehow violated. Moreover, Jeanie was not a party to the MSA containing the agreement to
arbitrate any disputes regarding the form of the settlement documents. Alice provides no authority
for her claim that a non-party to an arbitration agreement has a right to participate in an arbitration
conducted pursuant to that agreement. She has also failed to provide any authority demonstrating
that Jeanie had a right to intervene in the arbitration proceeding. Alice also argues in this issue that
the arbitrator was not impartial because, according to her, he did not take into consideration any
In 9 her brief, Alice states that counsel for Boyd and Elizabeth “apparently admitted” that
the Award “required signatures by all parties to be binding.” This argument mischaracterizes counsel’s
testimony, which was unequivocal that the Award ordered the parties to sign the settlement documents
prepared by the arbitrator. Counsel did not agree that the award was not final and binding and, in
fact, filed the motion to confirm the award.
11
versions of the settlement documents that were proposed by attorneys other than counsel for Boyd
and Elizabeth. The record does not support this assertion and, in fact, the only exhibit admitted
into evidence at the hearing on the motion to confirm the Award contains emails exchanged
between the arbitrator and all counsel that participated in the arbitration soliciting their input on the
form of the settlement documents. Attorneys for Boyd and Elizabeth, Alice and Jeanie, and Ronald
each provided their substantive comments to the arbitrator’s draft. As provided in the MSA, the
parties agreed that the arbitrator alone would resolve any disputes concerning the form of the
settlement documents, which he could do without written submissions or a hearing. We overrule
Alice’s fourth issue.
In her sixth issue, Alice merely states that she “believes it was error by the Court to
enforce the Arbitration award.” This issue includes no legal argument to support the contention
and presents nothing additional for this Court’s review.
Alice makes two additional arguments in her brief which we will also address. First,
Alice appears to assert that she was not required to participate in the arbitration because she did not
sign the MSA. This statement is contradicted by the record, which includes the MSA bearing Alice’s
signature. While Alice has thus far refused to sign the settlement documents as finalized by the
arbitrator, she did sign the MSA and agreed to submit disputes about the form of the final settlement
documents to binding arbitration. Second, Alice argues that it is “highly likely” that Texas Family
Code section 153.0071 applies “since this is a family matter and/or family dispute.” Section 153.0071
requires that a mediated settlement agreement reached after an agreed arbitration in a suit affecting
the parent-child relationship is binding on the parties if, among other requirements, “it provides, in
a prominently displayed statement that is in bold-faced type or capitalized or underlined, that the
12
agreement is not subject to revocation.” Tex. Fam. Code § 153.0071(d)(1). Alice argues that since
the Award does not comply with the requirements of section 153.0071, it is void. The underlying
proceedings are a probate proceeding, not a suit affecting the parent-child relationship. Texas Family
Code section 153.0071 has no application to this case.
Having considered and overruled the issues raised in Alice’s brief, we affirm the
trial court’s order confirming the Award and ordering that it be enforced according to its terms,
including the requirement that Alice sign the Settlement Agreement and Release of Claims attached
as Exhibit A to the Award.
Jeanie’s Appeal
Jeanie appeals from the trial court’s order granting Boyd and Elizabeth’s no-evidence
motion for summary judgment on her will-contest claims.10 Before the hearing on the motion for
summary judgment, Jeanie voluntarily withdrew any claims that Ella lacked testamentary capacity
to execute the 2012 Will. Thus, the issue before the trial court was whether Jeanie had presented the
court with more than a scintilla of admissible evidence to raise a genuine issue of material fact
regarding (1) whether the 2012 Will was a forgery or had been altered from its original form
and (2) whether Boyd and Elizabeth caused Ella to execute the 2012 Will through the exercise of
undue influence. See Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003)
(no-evidence summary judgment motion defeated if respondent brings forth more than scintilla of
probative evidence to raise genuine issue of material fact).
10 After the trial court granted summary judgment on the will-contest claims, Jeanie filed a
notice of nonsuit of her remaining unadjudicated claims, which included her objection to the
appointment of Boyd and Elizabeth as co-executors of Ella’s estate.
13
In her first issue,11 Jeanie argues that the trial court erred in excluding portions of the
affidavit of Ella’s daughter Phyllis, which Jeanie contends raised genuine issues of material fact
about the validity of Ella’s will. We review a trial court’s decision to exclude or admit summary
judgment evidence for an abuse of discretion. See Blake v. Dorado, 211 S.W.3d 429, 431-32
(Tex. App.—El Paso 2006, no pet.). An abuse of discretion exists only when the court’s decision
is made without reference to any guiding rules and principles or is arbitrary or unreasonable.
Eslon Thermoplastics v. Dynamic Sys., Inc., 49 S.W.3d 891, 901 (Tex. App.—Austin 2001, no pet.).
We must uphold the trial court’s ruling if there is any legitimate basis in the record to support it.
Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). We will not reverse
a trial court for an erroneous evidentiary ruling unless the error probably caused rendition of an
improper judgment. See Tex. R. App. P. 44.1; Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718,
723 (Tex. 2003).
In her brief, Jeanie asserts that Phyllis’s affidavit was admissible in its entirety as
opinion testimony. See Tex. R. Evid. 701 (lay witness testimony in form of opinion is admissible
if rationally based on witness’s perception and helpful to clearly understanding witness’s testimony
or determining fact in issue). While lay witness opinion testimony may be admitted under certain
circumstances, Jeanie does not provide argument or authority demonstrating that it would have been
an abuse of discretion for the trial court to conclude that Phyllis’s opinions as set forth in her
11 Jeanie’s brief includes five separate arguments designated A, B, D, E, and F. We will treat
each of these arguments as a separate appellate issue. Other portions of Jeanie’s brief, including her
statement of the issues presented and her prayer for relief, include challenges to the trial court’s
rulings that are not supported by any argument or authorities and therefore present nothing for this
Court to review. See Tex. R. App. P. 38.1.
14
affidavit were not helpful to understand a witness’s testimony or to determine a fact in issue as
required by rule 701. Jeanie’s brief also fails to address the other bases advanced by Boyd and
Elizabeth for excluding portions of Phyllis’s affidavit. Boyd and Elizabeth filed thorough and
detailed written objections to the portions of Phyllis’s affidavit they sought to exclude. These
objections included that (1) Phyllis lacked personal knowledge of Ella’s or Boyd and Elizabeth’s
conduct for several months before and after execution of the 2012 Will, (2) a number of the
statements were hearsay for which Jeanie identified no exception, (3) some of the statements
violated both the hearsay and the “best evidence” rule by referring to documents not attached to
the affidavit, see Gorrell v. Texas Utils. Elec. Co, 915 S.W.2d 55, 60 (Tex. App.—Fort Worth
1995, writ denied) (failure to attach sworn or certified copies of documents referred to in affidavit
constitutes defect in substance of affidavit), and (4) the affidavit contained opinions and conclusions
that were unsupported by facts, see Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)
(unsupported conclusory statements are not credible and are not susceptible of being readily
controverted). Jeanie has failed to present any legal authority that indicates the trial court abused its
discretion or acted without reference to guiding rules or principles when considering and ruling on
each of Boyd and Elizabeth’s objections to Phyllis’s affidavit. To the contrary, the record reflects
that the court heard each objection, provided Jeanie’s counsel an opportunity to respond, and made
rulings that were within its discretion.12 Jeanie’s first issue is overruled.
12 Jeanie also claims that the affidavit is excepted from the hearsay rule under Texas Rule of
Evidence 804. See Tex. R. Evid. 804 (exceptions to rule against hearsay when declarant unavailable
as witness). There was no evidence provided to either the trial court or to this Court that Phyllis met
any of the criteria for being considered “unavailable” under rule 804. See id. R. 804(a).
15
In her second issue, Jeanie argues that the trial court erred in refusing to admit the
testimony of Curt Baggett, offered as testimony of a handwriting expert. After hearing extensive
argument and evidence challenging Baggett’s qualifications to testify as an expert, the trial court
refused to admit his testimony on the alternative ground that he was not timely designated as a
testifying expert. See Tex. R. Civ. P. 193.6; 194.2(f). On appeal, Jeanie argues that her failure to
disclose Baggett as an expert witness should not have served as the basis for excluding him from
testifying at a “preliminary hearing not on the merits.” To support this argument, Jeanie relies on
Monsanto Co. v. Davis, 25 S.W.3d 773, 785 (Tex. App.—Waco 2000, pet. dism’d w.o.j.), in which
the court of appeals held that rule 193.6 does not apply to a class certification hearing, and In re
Toyota Motor Corp., 191 S.W.3d 498, 501 (Tex. App.—Waco 2006, orig. proceeding), in which the
same court held that the trial court could consider the testimony of an undisclosed expert psychiatrist
when deciding whether to permit the deposition of two child automobile accident victims on the
issue of whether they were properly restrained in the vehicle. In both cases the court of appeals held
that rule 193.6 does not exclude testimony of an undisclosed expert in preliminary hearings not
addressing the merits of the case. In the present case, the hearing was on Boyd and Elizabeth’s
no-evidence motion for summary judgment, plainly a hearing testing the merits of Jeanie’s claim
that the 2012 Will was invalid. We overrule Jeanie’s second issue.13
In her third issue, Jeanie states that the trial court did not apply the appropriate
standard of review when it granted Boyd and Elizabeth’s no-evidence motion for summary judgment
We also observe that 13 it would not have been an abuse of the trial court’s discretion to
exclude Baggett’s testimony on the ground that Baggett failed to provide any reliable basis for his
conclusory opinions regarding Ella’s signature. Moreover, Boyd and Elizabeth presented compelling
evidence challenging both Baggett’s qualifications as a handwriting expert and his credibility.
16
and that the court’s “decision should have been based on the record and not additional testimony.”
This issue does not include any clear or concise argument supporting Jeanie’s contention that
she presented admissible evidence to raise a genuine issue of material fact regarding an essential
element of her claim that the 2012 Will was a forgery or the result of undue influence exercised by
Boyd and Elizabeth such that granting the no-evidence motion for summary judgment would have
been improper. See Tex. R. App. P. 38.1(i). Because the issue presents nothing for our review, we
need not address it.
In her fourth issue, Jeanie argues that the trial court erred in granting the no-evidence
motion for summary judgment before passage of an adequate time for discovery to be conducted.
When a party contends that it has not had an adequate opportunity for discovery before a summary
judgment hearing it must file either an affidavit explaining the need for further discovery or a
verified motion for continuance. See Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647
(Tex. 1996); Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 561 (Tex. App.—Dallas
2003, pet. denied). Jeanie filed neither. Instead, in an amended response to the motion for summary
judgment and motion to freeze assets, counsel for Jeanie represented to the trial court that she had
sufficient evidence to raise a genuine issue of material fact with regard to her forgery claim. By the
time of the November 2016 hearing on the no-evidence motion for summary judgment, Jeanie and
Boyd and Elizabeth had been engaged in discovery for seven months, Jeanie had a pending motion
seeking to release the original 2012 Will to a forensic handwriting expert that she had not attempted
to set for hearing for four months, and Jeanie had represented to the trial court that she had sufficient
evidence to defeat the no-evidence motion for summary judgment. We overrule Jeanie’s fourth issue.
17
In her fifth issue, Jeanie contends that it was error for the trial court to conduct a
hearing on the no-evidence motion for summary judgment because, according to her, the arbitration
to resolve disputes about the form of the settlement documents to memorialize the MSA stayed the
trial court proceedings. In support of this argument, Jeanie refers to the TAA, which requires that
the court stay a proceeding that involves an issue subject to arbitration if it makes an order for
arbitration. See Tex. Civ. Prac. & Rem. Code § 171.025(a). The issue subject to arbitration in the
underlying proceedings was the form of the settlement documents contemplated by the MSA,
not Jeanie’s will contest. Section 171.025 provides that “the stay applies only to the issue subject
to arbitration if that issue is severable from the remainder of the proceeding.” Id. Jeanie’s claim
that the 2012 Will was a forgery or the result of Boyd and Elizabeth’s undue influence on Ella is
severable from the other parties’ dispute about the form of the settlement documents. The trial court
was not required to stay litigation of Jeanie’s will contest pending arbitration of the separate dispute
about the form of the settlement documents. Moreover, that arbitration was completed in April
2016, three days before Jeanie had even filed her original petition challenging the 2012 Will.
Jeanie’s fifth issue is overruled.
Having overruled each of Jeanie’s issues, we affirm the trial court’s order granting
Boyd and Elizabeth’s motion for summary judgment.

Outcome: For the reasons stated in this opinion, we affirm the trial court’s order confirming the Arbitration Award and ordering it enforced in accordance with its terms. We also affirm the trial court’s summary judgment order.

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