Opinion
04-20-00599-CV
02-08-2023
IN THE MATTER OF THE MARRIAGE OF CARLOS Y. BENAVIDES, JR. and Leticia R. Benavides
From the County Court at Law No. 1, Webb County, Texas Trial Court No. 2011-PB6-000081-L2-A Honorable Hugo Martinez, Judge Presiding
Sitting: Irene Rios, Justice Beth Watkins, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Lori I. Valenzuela, Justice
This appeal is one of many proceedings filed in this court arising from disputes among the parties, the origin of which was the 2011 guardianship of Carlos Y. Benavides, Jr. ("Carlos"). Appellant, Leticia R. Benavides ("Leticia"), is the fourth, and now former, wife of Carlos. There are no children from their marriage; however, Carlos has three adult children from his first marriage. Appellee, Linda Cristina Benavides Alexander ("Linda"), is Carlos's daughter and the guardian of Carlos's person and estate.
In this appeal, Leticia challenges six partial summary judgments that the trial court incorporated into a Final Decree of Divorce. Leticia raises numerous issues challenging the six partial summary judgments that (1) granted Carlos a divorce from Leticia, (2) determined certain assets were Carlos's separate property, and (3) determined Carlos and Leticia voluntarily signed pre- and post-marital agreements. Leticia also challenges the trial court's determination, in the divorce decree, that there was no community property. In addition to Linda's responsive brief on the merits of Leticia's appeal, Linda filed a motion to dismiss Leticia's appeal that challenged the summary judgment granting the divorce. We dismiss Leticia's appeal pertaining to the dissolution of marital bonds and affirm the Final Decree of Divorce.
BACKGROUND
Carlos and Leticia married in September 2004, and Carlos filed a petition for divorce on April 6, 2005. On February 8, 2007, the divorce action was dismissed for want of prosecution. In September 2011, Carlos's three children filed an application for appointment of guardian of Carlos's person and estate. In March 2013, Shirley Hale Mathis was appointed guardian of Carlos's estate and Linda was appointed guardian of Carlos's person. Mathis filed a second divorce petition on Carlos's behalf on October 12, 2012, but the case was nonsuited in 2017. In April 2013, Linda removed Carlos from the marital home and moved him to a house next door to her. On October 19, 2016, Linda was appointed guardian of Carlos's estate, making her the guardian of both Carlos's person and his estate. On March 30, 2018, three years after removing Carlos from the marital home, Linda filed a petition for divorce on Carlos's behalf.
In August 2020, Linda filed six motions for partial summary judgment. One of the motions asked the trial court to render judgment that Carlos and Leticia were divorced based on having lived apart for more than three years. Another motion for summary judgment asked the trial court to determine that pre- and post-marital agreements were enforceable. The remaining four motions asked the trial court to render judgment that certain assets were Carlos's separate property (hereinafter, the "summary judgments related to the property component of the divorce"). Leticia filed a response and Linda replied.
On September 9, 2020, the trial court granted the six motions for partial summary judgment and rendered judgments in Linda's favor. On the same date it granted the motions for partial summary judgment, the trial court signed the Final Decree of Divorce, which incorporated the six summary judgment orders. Leticia filed her notice of appeal on December 8, 2020. Carlos died on December 23, 2020. After Carlos's death, Linda filed a motion to dismiss Leticia's appeal from the summary judgment granting the divorce. Linda also filed an appellee's brief.
MOTION TO DISMISS
We first address Linda's motion to dismiss Leticia's appeal from the summary judgment that granted Carlos a divorce. In her motion to dismiss, Linda asserts that because Carlos died while this appeal was pending, this court lacks jurisdiction over the appeal of the dissolution of marital bonds, while retaining jurisdiction over the property component of the divorce.
"[W]hen a party to a divorce dies during the pendency of [an] appeal, the appeal becomes moot, unless the divorce decree significantly affects the property rights of the parties." Palomino v. Palomino, 960 S.W.2d 899, 901 (Tex. App.-El Paso 1997, pet. denied). Thus, if the property rights of the parties would be significantly affected depending upon whether the marriage was terminated by divorce decree or by death, the merits of the appeal can be adjudicated. Novotny v. Novotny, 665 S.W.2d 171, 174 (Tex. App.-Houston [1st Dist.] 1983, writ dism'd). However, if the appeal is moot, it must be dismissed. Id. Accordingly, whether Leticia's appeal from the dissolution of marital bonds must be dismissed turns on the question of whether the divorce significantly affected the parties' property rights.
A. The Parties' Arguments
In her motion to dismiss and reply in support of the motion, Linda asserts Leticia and Carlos signed pre- and post-marital agreements pursuant to which there was no community property, Leticia received her separate property, and Leticia was not deprived of any property. Linda contends there is no community estate to be divided and an expectancy or hope to inherit is not a right. In her motion to dismiss, she states, "[t]he divorce decree itself reflects that: there is no community property, Carlos retains his separate property, and [Leticia] retains her separate property. Awarding Carlos his own separate property does not affect [Leticia's] property rights, and vice-versa." Therefore, Linda concludes, the divorce decree did not significantly affect the parties' property rights, and this court lacks jurisdiction over Leticia's appeal from the summary judgment granting the divorce.
Leticia's response to the motion to dismiss raises numerous complaints that go to the merits of her argument that the trial court's summary judgment "is riddled with reversible error," including Linda's self-dealing and conflicts of interest, an allegedly corrupt judge, lack of consent to the divorce, and the trial court's refusal to consider Leticia's challenges to Linda's capacity. None of these arguments are relevant to whether the divorce significantly affected the parties' property rights. Finally, Leticia states: "Because the resolution of this divorce appeal substantially affects Leticia's and Carlos's property rights, i.e., Carlos's $32 million estate, this Court has jurisdiction to review and consider the numerous instances of reversible error committed by the trial court in granting the divorce [Linda] sought." Notably, Leticia never explains how "the property rights of Leticia and Carlos in his $32 million estate would be significantly affected depending upon whether their marriage was terminated by divorce or death."
However, in her appellant's brief on the merits of her appeal, Leticia asserts the trial court erred by declaring in the divorce decree that there was no community property because the court did not address the parties' ownership in the "ancillary bank accounts," Carlos's retirement benefits, the parties' ownership interest in the Interbond Group, or in the guns and jewelry owned by the parties. Linda counters that the court did address these items by finding the marital agreements to be valid and enforceable (and thus there was no community property) and by awarding each spouse his or her own separate property as required by those agreements.
Leticia also complains the trial court went outside the summary judgment record in granting the divorce.
After Linda filed her appellee's brief, Leticia filed a reply brief and Linda filed a sur-reply brief. In her reply brief, Leticia merely states:
The Court can either declare that Carlos and Leticia's marriage ended by death, or the Court can reverse the Divorce Decree and remand with instructions that the trial court dismiss the divorce proceeding for lack of jurisdiction. In any event, this Court has jurisdiction to consider the merits of Leticia's challenges to the divorce decree at issue even though Carlos passed away because substantial property rights are at issue.
Again, Leticia provides no other argument or support for this conclusory statement. On the other hand, in her sur-reply, Linda expands on her arguments about why this court lacks jurisdiction over the dissolution of the marriage:
[T]here are no substantial property rights at issue in this appeal-Leticia was awarded her separate property, Carlos was awarded his separate property, they had no claims to each other's property, Leticia had no claims for affirmative relief, and there was no community property-the marital-property agreements controlled. If Leticia is instead claiming to have "property rights" through the will she had Carlos sign when he was incapacitated, those are not rights.
B. Relevant Documents
If the divorce decree affects the parties' property rights, then Carlos's death during the pendency of this appeal does not deprive us of jurisdiction over the appeal of the dissolution of marital bonds. The following documents are relevant to this issue.
1. Pre-Marital Agreement
This agreement, signed September 11, 2004, contains several clauses, the most relevant of which state as follows:
1. C.Y. BENAVIDES, JR. and LETICIA BENAVIDES, who are not now married, intend to become husband and wife.
. . .
4. Each party presently owns real and/or personal property as described in Schedules A and B. Schedule A contains the property of C. Y. BENAVIDES, JR., and Schedule B contains the property of LETICIA BENAVIDES. The schedules are attached to this agreement and made a part of it for all purposes.
5. The parties, by entering into this agreement, are not attempting to prejudice the rights of preexisting creditors.
6. The parties do not intend by this agreement to make a gift from one party to the other party, but rather to enter into an agreement that will control their marital property rights and other spousal rights in a manner that is in important respects different from the manner in which the separate and community property rights or spousal claims would arise by operation of law in the absence of this agreement.
7. The parties intend to clarify their respective property rights to eliminate any uncertainty about those rights.
8. C.Y. BENAVIDES, JR. and LETICIA BENAVIDES intend by this agreement that no community property will be created during their marriage. [Emphasis added.]
Each party "expressly disclaim[ed] any express or tacit understanding or agreement that [he or she] has acquired or may in the future acquire in [the other's] property or income, including all interest or rights in any nonvested property rights." The parties "stipulated and agreed" "[a]ll property listed in [the applicable schedule] to be the sole and separate property of [the other party] and will remain the separate property of [that other party]."
Regarding dissolution of the marriage by divorce, the parties agreed that all the properties listed on each respective schedule "must be set aside to [the respective party] in the event of a court-ordered declaration of voidness of marriage, annulment, or divorce or set aside to [his or her] estate in the event of [his or her] death." The parties agreed that if either one filed any proceeding for divorce, annulment, or to declare their marriage void, each agreed the other would be awarded his or her separate property, including all property described in the agreement as being the other's separate property, and each agreed to release all interests or claim they might have in that separate property.
With respect to the dissolution of the marriage by death, each agreed to accept the provisions of any last will and testament and codicil that may be in effect at the time of the other's death "in full discharge, settlement, and satisfaction of any and all right, title, and interest that [he or she], as [the other's spouse], might otherwise acquire in [his or her] estate and property." Each party also agreed to execute all instruments of release or conveyance necessary to give effect to this agreement and to release and convey to the decedent spouse's estate "any interest that [the surviving spouse] may then have or claim to have in the separate property of [the decedent spouse], including any property described in this agreement as being the separate property of [the decedent spouse] or as belonging to [the decedent spouse's] estate, other than any benefit conferred on [the surviving spouse] in article 11 of this agreement." They also agreed to bind their personal representatives and heirs "to release to [the surviving spouse] all of the interest, if any, [the decedent spouse] or [his or her] estate may have in the then separate property of [the surviving spouse] or as belonging to [the surviving spouse's] separate estate unless otherwise provided for in article 11 of this agreement." The agreement does not contain an article 11.
The parties further agreed that (1) "the separate property of each party, and the property described or created in this agreement as being the separate property of or belonging to the separate estate of each party, will be free from any claim of the other party that may arise as a result of or during the marriage"; (2) "this agreement applies during the lifetime of both parties, including on dissolution of their marriage by court order, as well as on the death of either or both parties"; (3) "[a]ny property or liability inadvertently omitted from the schedules attached to this agreement is the separate property or liability of the party to whom it belongs or by whom it was incurred"; and (4) the "agreement may be waived, abandoned, modified, amended, discharged, or terminated only by written instrument signed by both parties that specifically identifies the waiver, abandonment, modification, amendment, discharge, or termination."
On the same date they signed the Premarital Agreement, the parties also signed a Waiver of Disclosure of Financial Information in which they both (1) stated they had been provided with "a fair and reasonable disclosure of the property and financial obligations" of the other; (2) voluntarily waived "any further disclosures of the property, including its value, and the financial obligations of [the other] beyond the disclosures provided in the proposed premarital agreement"; (3) acknowledged they had been offered an opportunity to further investigate the property, including its value, and the financial obligations of the other; and (4) waived the opportunity for further investigation.
Three days later, Carlos and Leticia married and signed a post-marital Property Agreement Between Spouses.
2. Property Agreement Between Spouses
In this agreement, signed September 14, 2004, the parties stipulated as follows:
1. C. Y. BENAVIDES, JR. and LETICIA BENAVIDES were married on September 11, 2004.
2. The spouses presently own as separate property the real and/or personal property described in Schedules A and B of the Premarital Agreement. Schedule A contains a description of the property owned at the time of marriage by C. Y. BENAVIDES, JR. as his sole and separate property, and Schedule C contains a description of his debts and obligations. Schedule B contains a description of the property owned at the time of marriage by LETICIA BENAVIDES as her sole and separate property, and Schedule D contains a description of her debts and obligations.
3. The spouses desire to ratify their Premarital Agreement and to provide by this agreement (a) that all income arising from C. Y. BENAVIDES, JR.'s separate property will be his separate property and remain under his ownership, management, and control, both during this marriage and on its dissolution by death or court order, unless such separate property is otherwise voluntarily transferred from C. Y. BENAVIDES, JR. to LETICIA BENAVIDES by will or other written instrument; and (b) that all income arising from LETICIA BENAVIDES's separate property will be her separate property and remain under her ownership, management, and control, both during this marriage and on its dissolution by death or court order, unless such separate property is otherwise voluntarily transferred
from LETICIA BENAVIDES to C. Y. BENAVIDES, JR. by will or other written instrument.
The agreement also provided as follows: "This agreement, as well as being a contract in its own right, is a ratification of the Premarital Agreement previously executed by the spouses before their marriage."
3. Carlos's Last Will and Testament
On September 14, 2011, Carlos executed a will in which he named Leticia as the executor and gave, devised, and bequeathed to her "all the residue and remainder of [his] property of every kind and character and wheresoever situated . . .."
4. The Petition for Divorce
On March 30, 2018, three years after removing Carlos from the marital home, Linda filed a petition for divorce on Carlos's behalf. In her second amended answer, filed August 31, 2020, Leticia, among other things, (a) denied she executed the Premarital Agreement and the Waiver of Financial Information; (b) asserted that if the Premarital Agreement, the Waiver of Financial Information, and the Property Agreement Between Spouses were valid, then all were revoked; and (c) contended she did not sign the Premarital Agreement voluntarily.
5. Final Decree of Divorce
The decree, signed on September 9, 2020, stated in pertinent part, as follows:
. . . The Court has determined that the parties signed a Premarital Agreement and a Property Agreement Between Spouses that are enforceable.
Pursuant to the Premarital Agreement and the [Property Agreement Between Spouses], the court determines that there is no community property.
IT IS THEREFORE ORDERED that CARLOS Y. BENAVIDES, JR. is awarded all his separate property, free and clear of any claims of LETICIA R. BENAVIDES, and that LETICIA R. BENAVIDES is awarded all her separate property free and clear of any claims of CARLOS Y. BENAVIDES, JR. . . . ..
C. Analysis - Did the Divorce Decree Significantly Affect the Parties' Property Rights?
Leticia and Carlos signed marital agreements identifying their separate property and agreeing that income from that property remained separate property. The Premarital Agreement clearly and unambiguously stated the parties' intention "that no community property will be created during their marriage." They agreed to the disposition of their separate property upon the dissolution of the marriage by either court order or the death of either spouse. They ratified this agreement in the post-marital Property Agreement Between Spouses. Therefore, it appears Carlos and Leticia agreed to enter into the marriage with their separate property, to keep their separate property intact during the marriage, and to leave the marriage (either by divorce or death) with only their separate property. No written instrument specifically identifying a waiver, abandonment, modification, amendment, discharge, or termination was filed. See Tex. Fam. Code § 4.005 ("After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration."). Leticia does not point to any specific property acquired during the marriage that may be presumed to be community property.
"Community property consists of the property, other than separate property, acquired by either spouse during marriage." Tex. Fam. Code § 3.002 . A spouse's separate property consists of the property owned or claimed by the spouse before marriage; acquired by the spouse during the marriage by gift, devise, or descent; and the recovery for personal injuries sustained by the spouse during marriage (except for recovery for loss of earning capacity). Id. § 3.001. A party claiming separate property has the burden of rebutting the community property presumption by clear and convincing evidence. Bahr v. Kohr, 980 S.W.2d 723, 728 (Tex. App.-San Antonio 1998, no pet.).
In Benavides v. Alexander, 646 S.W.3d 14, 22 (Tex. App.-San Antonio 2021, pet. denied), this court noted that, "[b]ecause there is conflicting evidence about whether Leticia signed the premarital agreement itself, the enforceability of that agreement might require a factfinder's resolution if it were the only contract at issue." Id. at 24. However, the court then noted Leticia acknowledged she signed the Property Agreement Between Spouses. The court held that certain provisions contained within that agreement "unambiguously show[ed] that by signing the property agreement between spouses, Leticia and Carlos intended to ratify the premarital agreement." Id. The court held:
. . . Because Leticia has not alleged any fraud, misrepresentation, or deceit surrounding the signing of the property agreement between spouses, that agreement's plain language bars her, as a matter of law, from claiming she did not know the material terms or effect of either that agreement or the premarital agreement it expressly ratified.
. . .
The uncontroverted evidence shows Leticia signed a document that: (1) expressly ratified the premarital agreement; (2) noted that the premarital agreement defined certain assets, including real property, as the parties' respective "sole and separate" property; and (3) provided that she had been "completely informed of the facts relating to the subject matter of this agreement." [Citation omitted.] . . . Because the premarital agreement provided that a writing signed by both parties was required to waive or abandon its terms and Leticia expressly ratified that agreement, the evidence conclusively shows that any gift of the O'Meara Circle residence had to be made in writing.Id. at 25.
Although Leticia attempts a different challenge to the Pre-Marital Agreement and the post-marital Property Agreement Between Spouses (hereinafter, collectively, the "marital agreements") based on res judicata, which we address later, we believe the above recent opinion from this court coupled with the clear language of both agreements indicate Carlos and Leticia agreed there would be no community property. However, our inquiry does not end here. During oral arguments in this appeal, this court asked Linda's attorney about Leticia's life estate in the marital home (the O'Meara Circle residence). The question was whether the divorce affected Leticia's life estate, if any, in the home and, therefore, affected her property rights.
A surviving spouse has the right to occupy the homestead for the remainder of her life. See Tex. Const. art. XVI, § 52. So long as the surviving spouse elects to use or occupy the homestead, the homestead is not subject to partition among the heirs of the deceased. Id. The surviving spouse's homestead right is an estate in land. Laster v. First Huntsville Props. Co., 826 S.W.2d 125, 129 (Tex. 1991). "This right of the surviving spouse has been equated with that of a legal life estate or a life estate created by operation of law.'' Henry v. Brooks, 651 S.W.3d 657, 663 (Tex. App.-Tyler 2022, no pet.); Laster, 826 S.W.2d at 129 ("This estate is analogous to a life tenancy, with the holder of the homestead right possessing the rights similar to those of a life tenant for so long as the property retains its homestead character."). The homestead right therefore "reduc[es]" underlying ownership rights "in a homestead property to something akin to remainder interests and vest[s] in each spouse an interest akin to an undivided life estate in the property." Laster, 826 S.W.2d at 129; see also Sargeant v. Sargeant, 118 Tex. 343, 352, 15 S.W.2d 589, 593 (1929) ("[I]t is clear to us that the homestead right in land contains every element of a life estate, and is therefore at least in the nature of a legal life estate, or, in other words, a life estate created by operation of law."). "The homestead life estate vests with the surviving spouse at the time of the deceased spouse's death and continues even if the deceased has willed the property to another." Henry, 651 S.W.3d at 663. "So long as [s]he does not abandon the right, the surviving spouse has exclusive possession of the premises for life." Id. Thus, "[a] life estate is an interest in property 'held only for the duration of a specified person's life.'" Knopf v. Gray, 545 S.W.3d 542, 545 (Tex. 2018) (per curiam).
Based on the above authority Leticia may have had a vested interest in property-a life estate in the marital home-if Carlos had died while they were still married. Henry, 651 S.W.3d at 663 ("homestead life estate vests with the surviving spouse at the time of the deceased spouse's death"); Tex. Const. art. XVI, § 52 ("On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased . . .."). However, the property right Leticia relies on to undo the divorce did not exist at the time of the divorce because Carlos was still alive when the divorce was granted; therefore, no life estate vested upon his death. Prior to Carlos's death, Leticia had, at most, no more than an expectancy in a life estate. A hope/expectancy of a future life estate is not a property right. Cf. Raulston v. Raulston, 531 S.W.2d 683, 685 (Tex. Civ. App.-Texarkana 1975, no writ) ("It is settled however, that a mere hope of inheritance or possibility of acquiring a title in the future is not such a legal expectancy as will amount to a present right or title in property.").
We conclude the divorce decree did not affect the parties' property rights and Carlos's death during the pendency of this appeal deprives us of jurisdiction over Leticia's appeal from the summary judgment granting the divorce. Accordingly, the proper disposition is to dismiss that portion of the appeal. Before we address the remaining five summary judgments regarding the marital agreements and the property component of the divorce over which we retain jurisdiction, we next address whether Linda's claims are barred by res judicata.
RES JUDICATA
In response to the motions for summary judgment, Leticia objected that Linda's claims regarding the marital agreements and the various assets and properties were raised or could have been raised in the jury trial held in the 49th Judicial District Court in cause number 2012-CVQ-00161-D1 (hereinafter, the "first case").
The genesis of the first case was an interpleader action filed by Texas Community Bank, which sought to interplead funds from various accounts allegedly belonging to Leticia and Carlos due to competing claims being made against those funds by Mathis and Leticia. Leticia and Mathis, in her capacity as guardian of Carlos's estate, were the initial named defendants in the interpleader action. See In re Benavides, 04-14-00718-CV, 2014 WL 6979438, at *1 (Tex. App.-San Antonio Dec. 10, 2014, orig. proceeding) (mem. op.) (providing background of lawsuit). The trial court eventually granted interpleader relief by which time Leticia and Mathis had filed their own claims, counterclaims, and defenses, which are the subject matter of what we refer to as the first case.
A. Caselaw
"Broadly speaking, res judicata is the generic term for a group of related concepts concerning the conclusive effects given final judgments.'' Barr v. Resolution Tr. Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992). "Within this general doctrine, there are two principal categories: (1) claim preclusion (also known as res judicata); and (2) issue preclusion (also known as collateral estoppel)." Id. "Res judicata, or claims preclusion, prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit." Id. "Issue preclusion, or collateral estoppel, prevents relitigation of particular issues already resolved in a prior suit." Id. Leticia's argument, that Linda should have brought the claims regarding the marital agreements and the properties in the first case, is the defense of res judicata/claim preclusion.
Res judicata requires proof of three elements: "(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action." Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). The parties do not dispute that the first case was concluded by a final judgment on the merits, the judgment in the first case was rendered by a court of competent jurisdiction, or that the parties are identical in both lawsuits. Thus, only one of the three res judicata elements is at issue-whether Linda's claims in this suit were raised or could have been raised in the first case.
In determining whether a claim or cause of action not asserted in a prior action is considered to be one that should have been raised there, Texas follows the "transactional approach," which, generally stated, looks to whether the subsequent claim or cause of action arises out of the same subject matter as the previous action and which, through the exercise of "diligence," could have been litigated in the previous suit. See Barr, 837 S.W.2d at 631. "A determination of what constitutes the subject matter of a suit necessarily requires an examination of the factual basis of the claim or claims in the prior litigation," looking to "the gist of the complaint, without regard to the form of action." Id. at 630; see also Pinebrook Props., Ltd. v. Brookhaven Lake Prop. Owners Assoc., 77 S.W.3d 487, 496 (Tex. App.-Texarkana 2002, pet. denied) (describing the analysis in terms of whether the cases "share the same nucleus of operative facts," as opposed to "the legal theories presented"). "Any cause of action which arises out of those same facts should, if practicable, be litigated in the same lawsuit." Barr, 837 S.W.2d at 630.
These inquiries are further guided by the concept that a final judgment in an action should bar subsequent suits based on the same "transaction," or series of connected "transactions," out of which the first action arose. See id. at 631 (citation omitted). Whether a set of underlying facts amounts to a "transaction" should be made "pragmatically, 'giving weight to such considerations as whether the facts are related in time, space, origin or motivation, whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to the parties' expectations or business understanding or usage.'" Id. (citation omitted); Alanis v. U.S. Bank Nat'l Ass'n as Trustee to Bank of Am., Nat'l Ass'n, No. 04-21-00021-CV, 2022 WL 3907925, at *3 (Tex. App.- San Antonio Aug. 31, 2022, no pet. h.) (mem. op.) (same).
B. Leticia's Argument
In her response to Linda's motions for summary judgment, Leticia merely contended Linda's "claims in this lawsuit about the property at issue arise from the same operative facts and [the] same subject matter as the claims she made in the" first case. Leticia also asserted that, "[b]ecause [Linda's] claims in this lawsuit about the property at issue arise from the same operative facts and same subject matter as the claims she made in the [first case], res judicata applies regardless of whether [Linda's] specific claims asserted in this case were litigated in the first case. . . . At a minimum, Leticia has raised a genuine issue of material fact with regard to her res judicata defense." However, Leticia did not attach a copy of the pleadings filed in the first case; therefore, we do not know the specific claims or the underlying facts. Instead, in support of her res judicata argument, Leticia relied on the jury charge and the final judgment in the first case to support her argument that res judicata bars Linda's current claims.
On appeal Leticia also relies on this court's opinion in In re Benavides, 2014 WL 6979438, at *1, in which Leticia filed a petition for writ of mandamus complaining of the county court at law's order denying her plea in abatement. A divorce action was pending in county court at the same time the interpleader action was pending in district court. Leticia filed a plea in abatement seeking to allow the earlier filed interpleader action in the district court to proceed under dominant jurisdiction. The county court denied the plea in abatement and Leticia filed a petition for writ of mandamus. In the original proceeding, this court held, "[b]oth suits between these parties seek determination of the parties' rights with respect to the Benavides' marital assets. Mathis and [Linda] fail to demonstrate why the interpleader suit could not be amended to include the issues to be decided in the divorce. We conclude there is an inherent interrelation of the subject matter of the two pending suits, and we see no reason why the suit in district court could not be amended to include all of the claims pending in the divorce action." Id. at *2 (emphasis added). "The interrelation between the two pending suits existed, at least in part, prior to Leticia's cross-claims." Id. at *3. "The interpleader action initially sought the district court's determination of the parties' rights to marital assets-an issue which would necessarily need to be determined in the context of the divorce and associated division of property." Id. "The fact that Leticia's cross-claims expanded the number of issues which might overlap between the two proceedings does not prevent her from seeking to abate the second-filed suit on the basis of dominant jurisdiction." Id.
In the first case, the jury charge contained nineteen questions, none of which addressed the marital agreements and only two involved property. The jury was asked whether Carlos made an oral gift to Leticia "of everything that is his" in Texas Community Bank, BBVA Compass Bank, Merrill Lynch, 108 O'Meara Circle, and the Benavides Family Mineral Trust. The jury answered "no" to all except as to the 108 O'Meara Circle property to which it answered "yes." The jury also found that Carlos made a 100% contribution and Leticia made zero contribution to the accounts held at Texas Community Bank, BBVA/Compass Bank, and Merrill Lynch. In its final judgment, the court directed a verdict against Leticia on her claims as to any and all interest or rights to any part of Rancho Viejo Cattle Company, Ltd. and Benavides Management, LLC. The court ordered that Leticia have and recover "as a parol gift from" Carlos "as her sole and separate property, the residential property identified as 108 O'Meara Circle, Laredo, Webb County, Texas ('the residential property')." Finally, the court rendered judgment on the jury's findings regarding the bank accounts and the Benavides Family Mineral Trust.
All parties appealed on several grounds, including grounds related to the property. See Benavides, 646 S.W.3d at 22. This court noted, "[t]he jury found that the funds in the joint accounts belonged solely to Carlos, and Leticia has not challenged that finding on appeal." Id. at 22. The court reversed the portion of the trial court's judgment awarding the O'Meara Circle residence to Leticia, and rendered judgment that the property belonged to Carlos as his sole and separate property. Id. at 25-26.
In the case underlying this appeal, one of Linda's motions for summary judgment addressed the enforceability of the marital agreements. The trial court's summary judgment order determined the agreements were enforceable. Four of the motions for summary judgment addressed whether the following property was Carlos's separate property: the surface estate of certain property identified as the Chapote Surface; Rancho Viejo Cattle Company, Ltd.; Benavides Management Company, L.L.C.; the Benavides Family Mineral Trust; and certain property identified as CY Benavides Webb County Royalty and Minerals, Realigned Zapata County Minerals, BFMT, Mamie Garcia Trust Real Property ("MGT Lots"), and Medina County Lot. In each summary judgment order, the trial court determined the property was Carlos's separate property and not subject to division in the divorce.
We conclude Leticia's reliance on the jury charge and final judgment in the first case and this court's holdings in the Benavides original proceeding do not satisfy the transactional approach requirement. Without the pleadings from the first case we do not know the underlying facts and can only speculate as to the specific claims or causes of action raised in that case. Therefore, we cannot determine whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to the parties' expectations or business understanding or usage. Therefore, Leticia did not raise a genuine issue of material fact to defeat Linda's entitlement to summary judgment on res judicata grounds. We next address the summary judgments related to the marital agreements and the property component of the divorce.
SUMMARY JUDGMENTS RELATED TO THE MARITAL AGREEMENTS AND THE PROPERTY COMPONENT OF THE DIVORCE
On appeal, Leticia does not challenge the merits of Linda's motions for summary judgment regarding the marital agreements or the property. Instead, Leticia asserts the trial court erred by disregarding the "objections" she raised in her responses to the motions for summary judgment. The "objections" Leticia raised to the motions for summary judgment, and which she briefs on appeal, were all the same and fell into two categories: (1) genuine issues of material fact exist regarding whether Linda had capacity to prosecute the motions for partial summary judgment and (2) genuine issues of material fact exist regarding whether res judicata bars Linda's claims, which we resolved above. Therefore, we narrow our analysis to Leticia's objections that Linda lacked capacity because (1) prior orders authorizing Leticia's actions are void, (2) Carlos disqualified Linda to act as his guardian, and (3) Linda had impermissible conflicts of interest; engaged in self-dealing, mismanagement, and misconduct; and breached her fiduciary duties to Carlos.
As a final objection in her response to the motions for summary judgment, Leticia objected that Linda's "own admissions [judicially estop] her claims." Leticia does not raise an issue on appeal regarding that objection; therefore, we do not address it.
A. Are the Trial Court's Orders Void?
Two of the six objections raised by Leticia are based on her contention that Linda lacks capacity to prosecute her motions for summary judgment because the only purported authorization for her actions are void orders signed by Judge Jesus Garza. Leticia contends Judge Garza was disqualified from hearing the probate case and, therefore, all his orders are void.
Judge Garza was the initial judge in the guardianship proceeding. Leticia complains of the following orders signed by Judge Garza: (1) an October 14, 2011 order appointing Shirley Hale Mathis as Carlos's temporary guardian; (2) a February 22, 2013 order denying Leticia's motion in limine; (3) a March 6, 2013 "Order Appointing Permanent Guardian," in which Judge Garza (a) declared void all documents signed by Carlos on September 14, 2011, including his Last Will and Testament, (b) found Leticia disqualified to serve as guardian of either Carlos's person or estate because she asserted claims adverse to Carlos, and (c) appointed Mathis as guardian of Carlos's estate and Linda as guardian of his person; and (4) an October 19, 2016 order appointing Linda as successor guardian of Carlos's person and estate.
In February 2018, Leticia filed a "Motion to Vacate All Orders Signed By Former Judge Jesus (Chuy) Garza" ("motion to vacate"). On April 25, 2018, Judge Hugo D. Martinez denied the motion to vacate.
In her response to Linda's various summary judgment motions, Leticia contended the orders signed by Judge Garza are void because he had an illegal personal interest in the case when he appointed Mathis as Carlos's temporary guardian. As proof of the alleged illegal personal interest Leticia relied on the following: (1) in January 2015, Judge Garza was indicted for asking Mathis to loan money to his court coordinator; (2) in January 2017, Judge Garza agreed to resign from the practice of law in exchange for dismissal of the complaints made against him to the State Commission on Judicial Conduct; (3) Judge Garza's personal attorney represented Mathis in the probate case; and (4) during Mathis's April 2017 deposition, she invoked her Fifth Amendment right against self-incrimination because she was named in an indictment against Judge Garza.Based on this evidence, Leticia argued Judge Garza was disqualified and, therefore, had no jurisdiction to act in the case rendering his orders void.
During an October 7, 2014 pretrial hearing before Judge Garza, Leticia's attorney for the first time raised the question of whether two attorneys who represented Mathis also were Judge Garza's attorneys since 2007 beginning with "some issues with the state commission." Judge Garza interjected with "2011" and stated, "No, no I'm going to tell you right now, if there is and [sic] issue, please file it for the record, I'm going to get you a visiting Judge to hear that particular motion. All right. And we'll take it from there." Leticia's attorney persisted, stating "what we'd like to know from the Court is if that representation [sic] continuing?" The judge replied, "There is no representation. . . . I'm not going to go into anymore issues on this matter, you file the proper motion with the Court, it goes before Judge Peoples [sic] and Judge Peoples [sic] can make the ruling for you on that matter." On appeal, Leticia does not assert her attorneys filed any motion to take the matter up further. Therefore, her "objection" amounts to nothing more than an unfounded allegation based on her attorney's questions during the hearing.
The deposition of Mathis on which Leticia relies does not reveal why Mathis was named in the indictment.
"Judges may be removed from a particular case either because they are constitutionally disqualified, Tex. Const. art. V, § 11, because they are subject to a statutory strike, Tex. Gov't Code § 74.053(d), or because they are recused under rules promulgated by this Court. Tex.R.Civ.P. 18a, 18b; Tex.R.App.P. 16." In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig. proceeding). "The procedure and grounds for each type of removal are fundamentally different." Id. "[A]ny orders or judgments rendered by a judge who is constitutionally disqualified are void and without effect." Id. Conversely, the "erroneous denial of a recusal motion does not void or nullify the presiding judge's subsequent acts." Id. A judgment in such circumstances may be reversed but is not "fundamental error" and can be waived if not properly raised by motion. Id. In this case, Leticia argued only disqualification and not recusal.
There are three independent grounds for constitutional disqualification: (1) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter; (2) the judge has a financial interest in the case; or (3) either party is related to the judge within the third degree by affinity or consanguinity. Tex. Const. art. V, § 11 ("No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case."); Tex.R.Civ.P. 18b(a) (listing grounds for disqualification).
Leticia submitted no summary judgment evidence that Judge Garza meets any of the three grounds for constitutional disqualification. He did not serve as a lawyer in the matter in controversy and during the pretrial hearing Leticia's attorney merely asked Judge Garza about his attorney's representation, a question that was not answered; there is no evidence he personally had a financial interest in the case; and no party is related to him within the third degree by affinity or consanguinity.
Although Leticia's evidence, if properly substantiated and admissible, may raise a fact question on the appearance of partiality, such an appearance is not a basis for disqualification of a judge in Texas. See In re Wilhite, 298 S.W.3d 754, 758 (Tex. App.-Houston [1st Dist.] 2009, orig. proceeding); see also Tex. R. Civ. P. 18b(a) (grounds for disqualification). Instead, the appearance of partiality is a basis for recusal. Wilhite, 298 S.W.3d at 760 (noting portion of federal rule for disqualification matches Texas rule for recusal allowing for recusal of judge "in any proceeding in which . . . his impartiality might reasonably be questioned"); Tex.R.Civ.P. 18b(b)(1) ("A judge must recuse in any proceeding in which . . . the judge's impartiality might reasonably be questioned"). Here, Leticia does not argue Judge Garza should have recused himself. Because none of the evidence on which Leticia relied raises a genuine issue of material fact on whether Judge Garza was constitutionally disqualified, she likewise has not raised a genuine issue of material fact sufficient to defeat Linda's entitlement to summary judgment on the ground that Linda lacks capacity to prosecute the motions for summary judgment because Judge Garza's orders are void.
B. Linda's Capacity to Prosecute the Motions for Summary Judgment
Leticia also objected that Linda lacked capacity for three other reasons. First, Leticia contended Linda had no legal authority to act as Carlos's guardian because Carlos disqualified her from serving as his guardian. Second, Leticia asserted Linda was disqualified because she had impermissible conflicts of interest, engaged in self-dealing, and breached her fiduciary duties to Carlos. Third, Leticia contended Linda was disqualified because of her mismanagement and misconduct.
1. Linda's alleged disqualification
Leticia objected to Linda's capacity to prosecute the motions for summary judgment on the ground that Carlos expressly disqualified Linda from serving as his guardian. As proof of the alleged disqualification, Leticia relied on a copy of a Declaration of Guardian in the Event of Later Incompetence or Need of Guardian (the "disqualification declaration"). The disqualification declaration, signed by Carlos on September 14, 2011, states in part as follows: "I expressly disqualify the following person[s] from serving as guardian of my person: Carlos Y. Benavides, III, Guillermo Benavides and Linda C. Benavides Alexander"; and "I expressly disqualify the following person[s] from serving as guardian of my estate: Carlos Y. Benavides, III, Guillermo Benavides and Linda C. Benavides Alexander."
Although Leticia phrased her objections as a lack of standing and capacity, "courts and parties have sometimes blurred the distinction between standing and capacity . . .." Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). "A plaintiff must have both standing and capacity to bring a lawsuit." Id. "The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a 'justiciable interest' in its outcome, whereas the issue of capacity 'is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate.'" Id. (citation omitted).
Here, Carlos had a justiciable interest in the subject-matter of the various motions for summary judgment filed by Linda. However, "minors and incompetents are considered to be under a legal disability and are therefore unable to sue or be sued in their individual capacities; such persons are required to appear in court through a legal guardian, a 'next friend,' or a guardian ad litem." Id. at 849. In other words, "[a]lthough a minor, incompetent, or estate may have suffered an injury and thus have a justiciable interest in the controversy, these parties lack the legal authority to sue; the law therefore grants another party the capacity to sue on their behalf." Id. Therefore, because Carlos's legal disability prevented him from prosecuting the motions for summary judgment, prosecution fell to his legal guardian-Linda. See Benavides, 646 S.W.3d at 21 ("Here, Mathis had the power to 'bring and defend suits by or against' Carlos at the time the relief in question was requested, and [Linda] had that power at the time that relief was granted."). Under these circumstances, we believe the issue is "more appropriately characterized as one of [Linda's] capacity [and not standing]." See id.; see also Hilderbran v. Tex. Sw. Council, Inc., Boy Scouts of Am., No. 04-20-00112-CV, 2021 WL 2211353, at *9 (Tex. App.-San Antonio June 2, 2021, no pet.) (mem. op.) ("issue of whether a party is entitled to sue under a contract-or, as here, a deed-is a capacity challenge"). We conclude Leticia's attempt to challenge Linda's capacity in the context of a summary judgment proceeding regarding marital agreements and property interests was not the correct procedural vehicle.
Linda is Carlos's guardian, with capacity to prosecute claims on his behalf, until she is removed. A guardian may be removed with or without notice pursuant to Chapter 1203 of the Estates Code. See Tex. Estates Code § 1203.051 (governing removal without notice); id. § 1203.052 (governing removal with notice). Unless the court removes the guardian on its own motion, both sections require an interested person to file either a motion or a complaint. Id. § 1203.051(a) ("The court, on the court's own motion or on the motion of an interested person, including the ward, and without notice, may remove a guardian . . .."); id. § 1203.052(a-1) ("The court may remove a guardian for a reason listed in Subsection (a) on the: (1) court's own motion [or] (2) complaint of an interested person . . ..").
In July 2019, Leticia filed a motion to remove Linda; however, the motion was never ruled on. Because Leticia did not obtain a ruling on her motion to remove Linda, Linda remains Carlos's guardian with capacity to prosecute the motions for summary judgment on his behalf. Therefore, we conclude the Declaration of Guardian in the Event of Later Incompetence or Need of Guardian did not raise a genuine issue of material fact sufficient to defeat Linda's entitlement to summary judgment on the ground that Linda lacked capacity.
2. Linda's alleged conflicts of interest, misconduct, and mismanagement, and breach of fiduciary duty
Citing Estates Code section 1104.354, Leticia objected that Linda was disqualified because she had conflicts of interest with Carlos. Citing Estates Code section 1203.052(a)(4), Leticia objected that Linda was disqualified because of her misconduct and mismanagement. Again, we must conclude Leticia's attempt to challenge Linda's qualification to serve as Carlos's guardian in the context of a summary judgment proceeding regarding marital agreements and property interests was not the correct procedural vehicle.
Section 1104.354 provides that "[a] person may not be appointed guardian if the person . . . asserts a claim adverse to the proposed ward or the proposed ward's property." Id. § 1104.354(3). Section 1104.354 does not apply because Linda has been appointed Carlos's guardian; therefore, the only recourse is her removal. Section 1203.052(a)(4) provides that a "court may remove a guardian as provided by Subsection (a-1) if . . . the guardian is proved to have been guilty of gross misconduct or mismanagement in the performance of the guardian's duties." Id. § 1203.052(a)(4). As stated above, unless the court removes the guardian on its own motion, section 1203.052 requires an interested person to file a complaint. Id. § 1203.052(a-1). Because Leticia did not obtain a ruling on her motion to remove Linda, Linda remains Carlos's guardian with capacity to prosecute the motions for summary judgment on his behalf. Therefore, we conclude Leticia did not raise a genuine issue of material fact sufficient to defeat Linda's entitlement to summary judgment on the grounds that Linda had conflicts of interest or engaged in misconduct and mismanagement.
C. Conclusion Regarding Linda's Capacity
We conclude Leticia did not raise a genuine issue of material fact sufficient to defeat Linda's entitlement to summary judgment on the grounds of Linda's capacity to prosecute the motions for partial summary judgment. Therefore, the trial court did not err in rendering summary judgments in favor of Linda on the marital agreements and the property component of the divorce.
DIVORCE DECREE: COMMUNITY PROPERTY
In her final issue on appeal, Leticia asserts the trial court erred by declaring in the divorce decree that there was no community property because the court did not address the parties' ownership in the "ancillary bank accounts," Carlos's retirement benefits, the parties' ownership interest in the Interbond Group, or in the guns and jewelry owned by the parties.
One of Linda's motions for partial summary judgment asked the trial court to declare the marital agreements enforceable. In its order granting the motion, the trial court ruled "that under the Premarital Agreement and the Property Agreement Between Spouses there is no community property and there are no community debts." Based on this ruling, the trial court stated in the divorce decree as follows:
The Court's Order Granting Partial Summary Judgment (Premarital Agreement and Marital Property Agreement) is incorporated into this Decree. The Court has determined that the parties signed a Premarital Agreement and a Property Agreement Between Spouses that are enforceable.
Pursuant to the Premarital Agreement and the Marital Property Agreement, the court determines that there is no community property.
As discussed above, Leticia did not challenge the merits of this motion for summary judgment. Instead, she raised the "objections" discussed above that we have determined did not raise a genuine issue of material fact sufficient to defeat Linda's entitlement to summary judgment. Therefore, because the trial court did not err in rendering summary judgment in Linda's favor and ruling "that under the Premarital Agreement and the Property Agreement Between Spouses there is no community property and there are no community debts," we cannot conclude the trial court erred by declaring in the divorce decree that there was no community property.
CONCLUSION
For the reasons stated above, we dismiss as moot Leticia's appeal from the summary judgment granting the divorce. Having concluded Leticia did not raise a genuine issue of material fact sufficient to defeat Linda's entitlement to summary judgment on the marital agreements and the property component of the divorce, we affirm the Final Decree of Divorce.