Opinion
No. B-9689.
May 27, 1981. Rehearing Denied June 30, 1981.
Appeal from the 134th District Court, Dallas County, Joe Burnett, J.
Carter, Jones, Magee, Rudberg, Moss Mayes, Lee M. Taft, Dallas, for petitioners.
Thompson Knight, David S. Kidder and Gerald H. Grissom, Dallas, for respondent.
Republic National Bank, trustee of the J. B. Stoddard and Claire Benz-Stoddard Trust, seeks restitution of funds mistakenly paid to the Estate of Claire Benz-Stoddard.
Republic moved for summary judgment. The Estate answered that under their fiduciary duties they had paid out all money received from Republic and should not be held accountable for Republic's mistake. Summary judgment was rendered for Republic and the Court of Civil Appeals affirmed. 601 S.W.2d 405.
The Estate complains summary judgment was erroneous. It argues there was a fact issue whether the Estate and Testamentary Trusts changed position to their prejudice after receiving the money. However, there was no summary judgment evidence that the Estate or Testamentary Trusts changed positions or assumed liabilities or obligations they would not otherwise have assumed. The summary judgment evidence was an affidavit stating the money paid to the Estate had been paid out through the Testamentary Trusts. A showing that the Estate no longer has the specific funds is not sufficient to raise a fact issue of prejudicial change of position.
The Court of Civil Appeals properly affirmed the trial court's judgment. The application for Writ of Error is refused, no reversible error. We do not approve the Court of Civil Appeals' discussion or application of Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970).
GREENHILL, C. J., not sitting.