Opinion
No. 04-15-00397-CV
03-09-2016
IN THE ESTATE OF Luisa R. MONTEMAYOR
MEMORANDUM OPINION
From the Probate Court No. 2, Bexar County, Texas
Trial Court No. 2010-PC-3012
Honorable Tom Rickhoff, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED IN PART; REVERSED AND REMANDED IN PART
Marcelo R. Montemayor, son of Luisa Montemayor, appeals the trial court's summary judgment in favor of Grace Calentine, daughter of Luisa Montemayor. Montemayor argues the trial court erred by granting Calentine's traditional and no-evidence motions for summary judgment. We affirm the trial court's judgment in part and reverse and remand in part.
BACKGROUND
The trial court on November 1, 2010, appointed Montemayor as independent executor of Luisa R. Montemayor's estate. Calentine filed an original petition on December 2, 2014, alleging that on December 6, 2010, while he was executor, Montemayor violated the terms of the will by executing a deed to sell real property that Luisa's will devised to her children equally. Montemayor was removed as executor, and Calentine requested that the trial court order the deed void and quiet title in the current executrix of the estate. Montemayor filed an answer, generally denying Calentine's allegations. In the second paragraph of his answer, Montemayor alleged, "For further answer, if such should be necessary and by way of affirmative defense, [Montemayor] states that the act of 'sell, manage, and dispose' was done under the power of the executor, and that he was duly appointed by the Court as the executor of said Estate."
Calentine filed a traditional motion for summary judgment on her quiet title claim, arguing she was entitled to judgment as a matter of law because Montemayor violated the terms of the will. Calentine produced two affidavits in support of her motion, but did not produce the will. The affidavits state Calentine and another daughter (both devisees) of Luisa did not authorize Montemayor to sell or convey the property. Calentine also filed a no-evidence motion for summary judgment on Montemayor's affirmative defense of "sell, manage, and dispose," arguing the allegation did not raise any cognizable affirmative defense in a suit to quiet title.
Calentine states the appellate record omitted two of her summary judgment exhibits and she filed a request for the clerk to supplement the record. The court thereafter received a notice from the trial court clerk stating the requested documents were not attached to the motion for summary judgment when filed in the trial court. The clerk also certified that a copy of the notice was sent to the parties. Calentine has not disputed the statements in the clerk's notice.
Montemayor filed a response and an affidavit in which he swore he was appointed independent executor, was issued letters testamentary on November 1, 2010, and had the power to "sell, manage, and dispose" of all of Luisa's estate. He also swore that pursuant to his authority he executed a deed on December 6, 2010, and sold the property for $50,000. He further swore that as of December 6, 2010, he was willing and able to pay all heirs their share of the proceeds from the sale of the property.
The trial court granted Calentine's traditional and no-evidence motions for summary judgment. The judgment declares Montemayor's deed void and awards Calentine costs. Montemayor now appeals.
STANDARDS OF REVIEW
To prevail on a traditional motion for summary judgment, the movant must show "there is no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of law." TEX. R. CIV. P. 166a(c); accord Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A plaintiff moving for summary judgment on its claim must conclusively prove all the elements of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). To determine whether the plaintiff, as the movant, met her burden, we examine the evidence presented in the motion and response. Jacobs v. Huser Const., Inc., 429 S.W.3d 700, 702 (Tex. App.—San Antonio 2014, no pet.). Once the movant has established a right to summary judgment, the burden shifts to the respondent to present evidence that would raise a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). "When a party moves for a no-evidence summary judgment, the nonmovant must produce some evidence raising a genuine issue of material fact." Romo v. Texas Dep't of Transp., 48 S.W.3d 265, 269 (Tex. App.—San Antonio 2001, no pet.) (citing TEX. R. CIV. P. 166a(i)). The nonmovant does not have the burden to marshal its evidence, but it must point out evidence that raises a fact issue on the challenged elements. Id. This court's de novo review is limited to the grounds raised in the written motion for summary judgment in the trial court. See City of Houston, 589 S.W.2d at 677.
We review a traditional and no evidence summary judgment using the same legal sufficiency standard we use in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). In reviewing the evidence, we take as true all evidence favorable to the nonmovant and "[w]e indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Rhone-Poulenc, 997 S.W.2d at 223. We review the evidence in the light most favorable to the party against whom the summary judgment was rendered, "crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
CALENTINE'S QUIET TITLE CLAIM
Montemayor argues the trial court erred by granting Calentine's traditional motion for summary judgment on her quiet title claim because his affidavit raised a fact issue that when he sold and conveyed the property to himself, he had the authority to do so. A plaintiff in a suit to quiet title has the burden to prove, among other elements, that the defendant's claim to the property is invalid or unenforceable. Vernon v. Perrien, 390 S.W.3d 47, 61 (Tex. App.—El Paso 2012, pet. denied). The sole ground for Calentine's traditional motion for summary judgment was that Montemayor's conveyance of the property was invalid or unenforceable because it violated the terms of the will because he did not obtain the consent of Luisa's daughters. However, Calentine did not provide Luisa's will or other evidence of the will's terms in support of her motion and Montemayor did not produce the will in response. Furthermore, Montemayor swore in his affidavit he was the executor of Luisa's estate, had authority to sell the property, and executed the deed conveying the property when he was the executor of Luisa's estate. Taken as true, Montemayor's affidavit testimony raises a genuine issue of material fact that Montemayor's conveyance of the property did not violate the terms of the will. See Rhone-Poulenc, 997 S.W.2d at 223. Therefore, the trial court erred by granting Calentine's traditional motion for summary judgment.
The lack of authority to convey the property without "authorization by any other devisee" was the sole ground for Calentine's motion for summary judgment. --------
CALENTINE'S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
The trial court granted Calentine's no-evidence motion for summary judgment regarding Montemayor's affirmative defense of "sell, manage, and dispose." In the judgment, the trial court determined Montemayor had "not pled any counterclaim that will preclude summary judgment in this case. The Court finds that [Montemayor] has asserted an affirmative defense for selling, managing and disposing of property . . . however, the law does not recognize selling, managing, and disposing of property as an affirmative defense to [Calentine]'s claim." Because Montemayor does not provide any argument as to how the act of "sell, manage, and dispose" is an affirmative defense to a suit to quiet title, that part of the judgment must be affirmed. See Krueger v. Atascosa County, 155 S.W.3d 614, 621 (Tex. App.—San Antonio 2004, no pet.) (holding we must affirm when an appellant fails to challenge the ground for the motion).
Montemayor asserts his pleadings gave "fair notice that he has a counter claim, in that the property was sold under the power and authority of Luisa's will and appointment thereof by the probate court." Montemayor's live pleading expressly alleges the act of selling, managing, and disposing of property as an affirmative defense. Furthermore, Montemayor does not cite any relevant authority to support his contention that the act of "sell, manage, and dispose" is a cognizable counter-claim. See TEX. R. APP. P. 38.1(i) (requiring an appellant's brief to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"). Therefore, we affirm the judgment regarding Montemayor's allegations of "sell, manage, and dispose" as an affirmative defense and purported counterclaim.
CONCLUSION
We affirm the trial court's judgment against Montemayor on his affirmative defense. We reverse the trial court's summary judgment on Calentine's quiet title claim and remand the case for further proceedings.
Luz Elena D. Chapa, Justice