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Werth v. Johnson

In a probate case involving allegations of fraud, the court of appeals upheld the trial court's grant of summary judgment. Beaumont Court of Appeals, No. 09-08-00296-CV, 08-27-2009

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OPINION

George Werth appeals the summary judgment on his cause of action for fraud against Susan Johnson, individually and as representative of the Estate of their father, Bobby Werth. We affirm the judgment of the trial court.

Late in his life, Bobby Werth gathered his five children about him and directed his daughter Susan to write the following: “(George Werth) Skipper is to have house to retire. If he (George) is to die the house is to go to the estate of Bobby Werth.” Bobby’s four daughters signed below a line that states “I agree.” Bobby signed the document later, with only George present. The will admitted to probate after Bobby’s death divided Bobby’s estate equally between his five children and did not provide a life estate in the house for George. George sued Susan, individually and in her capacity as the executrix of Bobby’s estate, for breach of fiduciary duty and fraud, and asked for a judgment declaring his rights to the property. Susan filed a counterclaim for intentional infliction of emotional distress. The trial court granted Susan’s motion for summary judgment. With the filing of amended pleadings and a severance of remaining issues, only George’s fraud claim is at issue in this appeal. In six issues, George contends the summary judgment record reveals genuine issues of material fact on the elements of his cause of action for fraud.

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