Court of Appeals of Texas, Beaumont.

In the ESTATE OF Dorothy L. COOPER, Deceased.

No. 09–01–041 CV.

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Submitted on July 30, 2001.

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Delivered Aug. 30, 2001.

Before WALKER, C.J., BURGESS and GAULTNEY, JJ.

OPINION

BURGESS, Justice.

*1 This is a will contest in which Kathleen Kennedy Lieberman appeals a summary judgment in favor of the executor, John Earl Smithey. Maintaining she had been a beneficiary under previous wills of decedent Dorothy L. Cooper, Lieberman opposed admitting Cooper’s July 21, 2000 will to probate. The contested will named Smithey and his wife, Nancy, as sole beneficiaries, provided they survived Cooper, who died on August 11, 2000 at age eighty nine. Lieberman was a niece of Cooper’s deceased husband, Harold, who died in 1984. The Smitheys, who assisted Cooper with her financial matters and medical appointments, also were beneficiaries of her 1998 will. Lieberman brings three issues. We affirm the trial court’s judgment.

Smithey moved for summary judgment contending Lieberman’s opposition was not supported by any evidence, and Lieberman could not show the existence of undue influence.¹ Under Rule 166a(i), a party may move for summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which the nonmovant would have the burden of proof at trial. See Tex.R. Civ. P. 166a(i); Allen v. W.A. Virnau & Sons, Inc., 28 S.W.3d 226, 231 (Tex.App.—Beaumont 2000, pet. denied).

The motion must state the elements as to which there is no evidence, and the reviewing court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. See [Tex.R.Civ.P. 166a(i) ]. In essence, a no-evidence motion for summary judgment is a pretrial motion for instructed verdict, and we apply the same standard of review.

Allen, 28 S.W.3d at 231 (citing Vallance v. Irving C.A.R.E.S ., Inc., 14 S.W.3d 833, 836 (Tex.App.—Dallas 2000, no pet.)). A no-evidence summary judgment is improper if the adverse party has produced more than a scintilla of probative evidence raising a genuine issue of material fact on each challenged element of a claim or defense. Evidence that is so weak as to do no more than create a mere surmise or suspicion of a fact is legally insufficient and constitutes no evidence. See Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.—San Antonio 1998, pet. denied). “More than a scintilla of evidence exists when the evidence ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ “ Id. (quoting Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)).

In issue one, Liberman contends the trial court erred in granting summary judgment as sufficient evidence existed to create a genuine issue of material fact that Smithey and his family unduly influenced Cooper to change her will to omit Lieberman as a beneficiary. After Smithey filed his no-evidence motion for summary judgment claiming there was no evidence to support Lieberman’s claim of undue influence, Lieberman had the burden to produce more than a scintilla of probative evidence raising a genuine issue of material fact on each element of her undue influence claim. See Moore, 981 S.W.2d at 269.

*2 The burden of proving undue influence is upon the party contesting the will’s execution. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963). The Rothermel Court established a three-part test to determine whether undue influence exists in will executions. To prevail on a claim of undue influence, a will contestant must establish: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the will’s execution; and (3) the execution of a will that the maker would not have executed but for such influence. Id. The contestant must introduce some tangible and satisfactory proof of the existence of each of these elements of undue influence. Id. Further, every influence is not undue influence, which exists if the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence. Id. The exertion of undue influence may not be inferred solely from the opportunity to exert influence. Id. at 922–23.

If circumstantial evidence is used to establish undue influence, the circumstances that are as consistent with a will executed free from improper influence as they are with a will resulting from undue influence cannot be considered as evidence of undue influence. Green v. Earnest, 840 S.W.2d 119, 121 (Tex.App.—El Paso 1992, writ denied). Evidence that the beneficiary had the opportunity to exert influence is not enough; rather, the evidence, direct or circumstantial, “must show not only the presence of opportunity but that improper influence was exerted at the time the will was made.” Id. at 122. A will “executed under the formalities required by law by one mentally capable of executing it should not be set aside upon a bare suspicion of wrongdoing.” Garza v. Garza, 390 S.W.2d 45, 46–47 (Tex.Civ.App.—San Antonio 1965, writ ref’d n .r.e.). The summary judgment evidence here shows the Smitheys were not present when Cooper signed her will. Moreover, Cooper’s attorney swore in his affidavit that Cooper had requested that the will be executed while the Smitheys were out of town. As no evidence was before the trial court that any “subverting or overpowering” influence was exerted over Cooper at the time she executed the will, we find Lieberman has failed to offer the “more than a scintilla” of evidence necessary to avoid summary judgment. Issue one is overruled.

Next, we consider whether, as Lieberman claims in issue two, the trial court erred in excluding certain summary judgment evidence that she offered. The standards for determining the admissibility of evidence in a summary judgment proceeding are the same as those applied in a regular trial. United Blood Serv. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997). Decisions about the admissibility of evidence are left to the sound discretion of the trial court. Owens–Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex .1998). “Rulings concerning the admission or exclusion of summary judgment evidence are reviewed under an abuse of discretion standard .” Barraza v. Eureka Co., 25 S.W.3d 225, 228 (Tex.App.—El Paso 2000, pet. denied). “A trial court abuses its discretion when it acts without regard for any guiding rules or principles.” City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex.1995). To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show the trial court committed error, and the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. See Tex.R.App. P. 44.1(a)(1); Malone, 972 S.W.2d at 43.

*3 Texas Rule of Civil Procedure 166a(f) requires that “supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Tex.R. Civ. P. 166a(f). Expert witness testimony is incompetent for summary judgment purposes when it does not adequately set out the basis for the opinion. See e.g ., Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996) (“An interested witness’ affidavit which recites that the affiant ‘estimates,’ or ‘believes’ certain facts to be true will not support summary judgment.”). Under Rules 701 and 704 of the Texas Rules of Evidence, a lay witness may express an opinion that is “rationally based on the perception of the witness” and would be “helpful to a clear understanding of [the witness’] testimony or the determination of a fact in issue,” even if it is an ultimate fact. See Tex.R. Evid. 701, 704; Green, 840 S.W.2d at 123.

As requested by Smithey, the trial court struck portions of the affidavits of Ione Kubby and Marie Pickett, finding them to be incompetent summary judgment evidence because of statements that were indefinite as to time and did not refer to specific factual circumstances. Smithey did not object that either Kubby or Pickett were interested witnesses or incompetent to testify, nor did he raise hearsay objections.

From Kubby’s affidavit, the trial court allowed the portions of her affidavit explaining Kubby had been Cooper’s close friend for fifty-one years, had traveled with her numerous times since 1989, had spoken to her at least six times a week, and last spoke to Cooper on the day of her death. Upon Smithey’s request, the trial court struck the following statements:

1. “Dorothy expressed to me on several occasions that she wished for Kathy to have most all of her property because Kathy was her only living relative.”

2. “On my last visit with Dorothy, my daughter Norma, my granddaughter and myself came to Beaumont and took Dorothy to lunch. As soon as we arrived, Nancy Smithey came over and stayed until we left for lunch. Upon our return to Dorothy’s house, Nancy once again came over and stayed until we left. She would never leave us alone with Dorothy.”

3. “From discussions with Dorothy, as well as the visits I made to her house, it was apparent that the Smitheys tried to control and influence her life and that they watched every move that she made.”

4. “Dorothy also told me that John Earl brought a lawyer to her home to make the new will. It was apparent to me from the conversations with Dorothy that she was being pressured into changing her will. I spoke with Dorothy three (3) days prior to her death where she told me that she wished that she had not changed her will.”

From Marie Pickett’s affidavit, the trial court allowed Pickett’s testimony that she had been Cooper’s close friend for fifteen years and had spoken with her five to six times per week. Also allowed was Pickett’s statement that during the months before Cooper’s death, Cooper’s health was deteriorating and she became more dependent on help from the Smitheys. Further, allowed was Pickett’s statement that during the last six months of Cooper’s life, Cooper was supposed to have traveled to El Paso to visit Kubby, but Nancy Smithey had told Cooper she should not make the trip. At Smithey’s request, the trial court struck the following of Pickett’s statements:

*4 1. “I visited with Dorothy at her house during the month of July, 2000 at Dorothy’s insistence and Dorothy’s health was extremely bad.”

2. “From many discussions with Dorothy I believe that the Smitheys had an extreme amount of control of most aspects of her life and influenced her to change her will.”

3. “Dorothy often related her wishes to leave her things to Kathy because she was the only living relative.”

Clearly, some of the statements struck by the trial court contain conclusions. That is not the issue before us. Conclusions based on stated underlying facts are proper, whether offered by expert or lay witnesses. See Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex.App.—Houston [1st Dist.] 1997, no pet.). Moreover, “Texas courts have consistently held that opinion or inference testimony about another’s state of mind, rationally based on the witness’s perception, is admissible under Rule 701.” See e.g., Ethicon, Inc. v. Martinez, 835 S.W.2d 826, 832 (Tex.App.—Austin 1992, writ denied) (employee’s testimony regarding impact of workers’ compensation award on company’s medical discharge of another employee was admissible); Campbell v. Groves, 774 S.W.2d 717, 719 (Tex.App.—El Paso 1989, writ denied) (in will probate case, witness permitted to testify testator was of unsound mind based upon personal observations); Chase Commercial Corp. v. Datapoint Corp., 774 S.W.2d 359, 368 (Tex.App.-Dallas 1989, no writ)(fraud case where lay opinion testimony of employee held admissible).

The statements struck by the court clearly contained admissible statements. For example, one of Kubby’s statement that was struck was: “On my last visit with Dorothy, my daughter Norma, my granddaughter and myself came to Beaumont and took Dorothy to lunch. As soon as we arrived, Nancy Smithey came over and stayed until we left for lunch. Upon our return to Dorothy’s house, Nancy once again came over and stayed until we left.” These are fact statements. Another example is found in Pickett’s affidavit: “I visited with Dorothy at her house during the month of July, 2000 at Dorothy’s insistence and Dorothy’s health was extremely bad.” Pickett’s conclusion is permissibly based on her long friendship and frequent communications with Cooper. We do not intend these examples to be a complete listing of the admissible statements excluded in error by the trial court. Such an analysis is unnecessary because Lieberman must also show that the exclusion of the affidavit statements was harmful error, which it was not. See Tex.R.App. P. 44.1(a)(1). Here, even if Lieberman’s summary judgment affidavits in their entirety had been considered by the trial court, there would be no evidence of the second Rothermel element—i.e., that improper influence, if any, was exerted at the time the will was made. See, Rothermel, 369 S.W.2d at 922. Neither affiant purports to have been present at the time the will was executed, and neither affidavit, through hearsay testimony or otherwise, describes events occurring at the time Cooper signed her will. We sustain issue two.

*5 In issue three, Liberman asserts the trial court erred in granting the immediate issuance of Letters Testamentary and Appointment of Independent Executor as a temporary administration existed under Section 132 of the Texas Probate Code. As we have found summary judgment was proper, which means appointment of the independent executor also was proper, we need not consider this issue, as Lieberman recognizes. Accordingly, we affirm the trial court’s summary judgment granted in favor of executor, John Earl Smithey AFFIRMED.

	Footnotes
1		Smithey also contended Lieberman could not show Cooper lacked testamentary capacity, but that issue is not before us on appeal.