In re Estate of Parrimore

IN RE ESTATE OF MELVIN PATRICK PARRIMORE, DECEASED

NO. 14-14-00820-CV

State of Texas in the Fourteenth Court of Appeals

February 25, 2016

On Appeal from the Probate Court No. 3 Harris County, Texas

Trial Court Cause No. 405228

MEMORANDUM OPINION

This is an appeal from an amended final judgment denying a will contest. Appellants Melvin Patrick Parrimore, II and Bradley Reed Parrimore are the sons of the decedent, Melvin Patrick Parrimore. Appellee Patrice Parrimore was Melvin's wife at the time of his death, and she offered the disputed will for probate. The trial court held a bench trial and admitted the will to probate. Appellants challenge that decision in multiple issues.

In their first two issues, appellants argue that the trial court abused its discretion when it refused to allow them to amend their pleadings to add a suit to quiet title on the first day of trial on the will contest. We overrule these issues because the trial court has discretion to manage its own docket and did not abuse that discretion when it refused to allow appellants to add a new cause of action not directly relevant to the will contest.

Appellants' third issue concerns comments made by the trial judge. According to appellants, these comments indicate that the trial judge misapplied the law governing testamentary capacity and therefore failed to consider evidence related to Melvin's state of mind both before and after the execution of the will. We overrule this issue because appellants failed to preserve the alleged error by objecting when the trial court made the comments. Further, even if this issue had been preserved, it would not require reversal because appellate courts cannot look to comments made by a trial judge during a bench trial to determine the basis for the trial court's ruling.

In their fourth and fifth issues, appellants contend that the evidence is legally and factually insufficient to establish that Melvin possessed: (1) testamentary intent when the will was executed; and (2) testamentary capacity on the date the will was executed. In their sixth issue, appellants assert that the evidence is conclusive that Melvin executed the will as a result of undue influence or that the trial court's determination that the will was not executed as a result of undue influence is against the great weight and preponderance of the evidence. We overrule each of these issues because the record contains legally and factually sufficient evidence supporting the trial court's judgment. We therefore affirm the trial court's amended final judgment.

BACKGROUND

Melvin and Patrice were married on November 18, 2006. This was Melvin's second marriage. Melvin previously had been married to Betty Parrimore.Appellants are Melvin and Betty's children. Patrice was aware that at the time she married Melvin, he was suffering from congestive heart failure and had a defibrillator. Despite his illness, Melvin worked long hours as an energy manager for Klein Independent School District.

On November 15, 2009, Patrice noticed that Melvin's speech was slurred and that the left side of his face had drooped. Patrice took Melvin to the emergency room, where he received prompt treatment for a stroke. Melvin responded well to the treatment and was released from the hospital on November 18, 2009. Patrice testified that Melvin's condition continued to improve once he returned home from the hospital.

Melvin and Patrice had begun working on a will for Melvin in 2008. While working on the will, Melvin indicated who his sons were and talked about not leaving anything to his heirs. Melvin and Patrice then used a computer program to draft the will. The will-making program asked questions, Melvin answered the questions, and the program then produced the completed will, which could be printed. According to Patrice, the will was completed, but not signed, long before Melvin had the stroke. Article I of Melvin's will provides:

I am married to Patrice Miller Parrimore and all references in this Will to "my spouse" are references to Patrice Miller Parrimore.

The names of my children are Bradley Reed Parrimore and Melvin Parrimore II. All references in this Will to "my children" are references to the above-named children.

The failure of this Will to provide for any distribution to my child(ren): Bradley Parrimore and Melvin Parrimore II, is intentional.

On November 29, 2009, eleven days after Melvin was released from the hospital, Patrice and Melvin organized a party at their home for the signing of Melvin's will. Family and friends were invited to the party. Melvin played pooland circulated about the home visiting with the guests during the party.

Debbie Knox, a long-time friend of Patrice and a notary public, and Jerome Jackson, a family friend of both Patrice and Melvin, were among the party guests. Knox testified at trial that she had the chance both to observe Melvin during the party and to talk with him directly. Knox, who was aware Melvin had experienced a stroke, testified that Melvin appeared to be of sound mind that day and knew that one of the reasons for the party was to have his will signed. Melvin eventually told Knox that they "needed to do the will." Knox confirmed that Melvin wanted to sign the will. Knox then asked Melvin if he was giving Patrice permission to sign the will for him, and he told her that he was. Patrice then signed the will on behalf of Melvin. Three witnesses—Tommy Walker, Jerome Jackson, and Sharon Simmons—then signed the will in Melvin's presence.

Once he was released from the hospital following his stroke, Melvin began physical, occupational, and speech therapy at various institutions to address issues caused by the stroke. Melvin's issues included "primary impairments in speech/language functioning consistent with resolving aphasia." As noted above, Patrice testified that Melvin's condition continued to improve. Melvin began driving again and he went back to work part-time in May 2010. Melvin resumed working full-time in July 2010. Melvin died on September 3, 2010.

Patrice filed an Application to Probate Will and for Issuance of Letters Testamentary. Appellants filed their will contest soon thereafter. Appellants alleged that Melvin did not possess testamentary intent or capacity when the will was executed. They also alleged that Patrice exerted undue influence on Melvin.

The trial court conducted a bench trial to resolve these issues. In addition to Knox, Jerome Jackson, one of the witnesses to the will execution, testified duringthe trial. Jackson was aware that Melvin had suffered a stroke prior to the will-signing party. Jackson testified that Melvin was able to communicate that day, they talked about the will, Melvin appeared to be of sound mind, and Melvin asked him to be a witness to the execution of his will. Jackson initially testified that Melvin signed the will, not Patrice. When Jackson was asked to clarify his testimony, he explained that he saw Melvin talking to Patrice and that he could not remember if Patrice signed the will on Melvin's behalf. Later, Jackson testified that while he was in the same room as Melvin during the will signing, he did not see Melvin sign the will.

Karen Young, Melvin's sister, also testified during the trial. Young testified that she had seen Melvin ask Patrice to sign documents for him and she did not find it unusual for Melvin to have asked Patrice to sign the will on his behalf. While Young was not present at the will-signing party, she saw Melvin the day before and also after the will was signed, and she testified that she believed Melvin was of sound mind. Melvin also discussed his stroke with Young. Young testified that Melvin told her the stroke caused him to have a speech issue. Young denied that Melvin told her he had a brain injury or memory problems as a result of the stroke.

Young also testified about Melvin's relationship with his sons. According to Young, Melvin had visitation rights with his sons and although they did spend some weekends with him during the summers of 2008 and 2009, they did not spend the full amount of time they were allotted with their father. Finally, Young testified that she believed Melvin loved his two sons.

Once Patrice rested her case, the trial court found that Patrice had met the statutory requirements and had proven up the will. The trial court then turned to appellants' allegations of lack of testamentary intent, testamentary capacity, andundue influence. At this point, the following exchange occurred:

THE COURT: Once again, you do recall that it's - - once again, you're going to need, since the will was admitted, direct evidence - - on direct evidence, you're going to need to refute by direct evidence.

[APPELLANTS]: Well, Your Honor, I raise - - on the issue of - - and I'm sorry, Your Honor, I'm only going to be able to raise the issue of undue influence.

THE COURT: I didn't say that. I just said since we have had testimony dealing with the will execution, you are going to, if you wish to counteract it, you're going to need to bring contrary direct evidence.

[APPELLANTS]: I'll just put on my case. Thank you, Your Honor.

THE COURT: Sure. All right.

Appellants called Patrice as their first witness. Patrice confirmed that Melvin had a stroke on November 15, 2009. Patrice also confirmed that Melvin's hospital medical records report that Melvin was having comprehension issues that day. Appellants then offered medical records into evidence and the following exchange occurred:

THE COURT: What do medical records have to do - -

Okay. Let's try this again. You may have a very expansive view of undue influence, but medical records do not prove undue influence. I've never seen that happen.

[APPELLANTS]: What I was trying to do is show his condition - -

THE COURT: Condition when?

[APPELLANTS]: - - before, during and after the execution of the will.

THE COURT: Why don't you forget the before and after, and do the execution of the will since we have testimony that he was...