Mary Higginbotham and Jason Higginbotham v. Sandra P. Ferguson, Trustee of the Trust Estate of Madeline Marena Gillespie

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-00-00173-CV Mary Higginbotham and Jason Higginbotham, Appellants v. Sandra P. Ferguson, Trustee of the Trust Estate of Madeline Marena Gillespie, Appellee FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT NO. C98-811B, HONORABLE ROBERT T. PFEUFFER, JUDGE PRESIDING Mary Higginbotham and Jason Higginbotham (1) appeal from a summary judgment rendered against them in a suit to quiet title in Sandra P. Ferguson, Trustee of the Trust Estate of Madeline Marena Gillespie (Trustee). We will affirm the trial court judgment. Factual and Procedural Background This factual situation has previously been before this Court in a forcible entry and detainer action filed by the Trustee. Higginbotham v. Sandra P. Ferguson, Trustee of the Trust Estate of Madelene Marena Gillespie, No. 3-99-011-CV (Tex. App.--Austin Dec. 9, 1999, no pet.) (not designated for publication). Gillespie purchased real property from Cleburne Caddell on April 10, 1986. Gillespie allowed her sister, Mary Higginbotham, to occupy the property until Gillespie's death in February of 1992. The property was conveyed to the Trustee on June 22, 1992 through an executrix deed to the trust estate. On March 31, 1998, the Trustee gave Higginbotham written notice to vacate the premises. Higginbotham refused to move and continued to occupy the property. The Trustee brought a forcible detainer action in justice court against Higginbotham. Higginbotham filed a written answer and plea to the jurisdiction, alleging that she owned the property and was not a mere tenant. The justice court found that the suit involved issues of title and sustained Higginbotham's plea to the jurisdiction. The Trustee appealed to county court for a trial de novo. At county court, the Trustee moved for summary judgment on the ground that no genuine issues of fact existed in the case. In support of her motion, she filed certified copies of instruments and deeds evidencing her ownership of the property. (2) In Higginbotham's affidavit in support of her response to the motion for summary judgment, she averred that Gillespie gave the property to her by way of an oral gift. Higginbotham, however, never produced any writing evidencing this conveyance. The trial court overruled Higginbotham's plea to the jurisdiction and granted summary judgment in favor of the Trustee. In our previous Higginbotham opinion, we considered whether Higginbotham had ever raised a genuine title dispute to decide whether the justice of the peace or county courts had jurisdiction; only the district court has jurisdiction to adjudicate title to real property. See Tex. Gov't Code Ann. § 26.043 (West 1988). We held that Higginbotham did not raise a genuine title dispute. Higginbotham referred to an oral agreement between her and Gillespie, but such agreements are generally unenforceable as a matter of law. See Tex. Bus. & Com. Code Ann. § 26.01 (West 1987) (conveyance of real property must be in writing to be enforceable). (3) This Court held that Higginbotham failed to present specific evidence to raise a genuine title dispute in the forcible entry and detainer action. Because of Higginbotham's claim of ownership in the forcible entry and detainer proceeding, the Trustee brought the suit underlying this appeal to clear that cloud on the title. The trial court granted summary judgment in the Trustee's favor. In two points of error, Higginbotham asserts that the trial court erred in excluding certain summary judgment evidence and that the trial court erroneously granted summary judgment. Discussion Summary Judgment The order granting summary judgment for the Trustee does not specify the reason the trial court granted the motion. When such an order exists, we will affirm the judgment if any of the theories advanced in the motion are meritorious and supported by competent summary judgment evidence. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). In a traditional motion for summary judgment, the movant has the burden of showing that no genuine issue of material fact exists, and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). If the movant's motion and summary judgment proof facially establish a right to judgment as a matter of law, the burden shifts to the non-movant to raise a material fact issue sufficient to defeat summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.--Austin 2000, no pet.); HBO, A Div. of Time Warner Entertainment Co., L.P. v. Harrison, 983 S.W.2d 31, 35 (Tex. App.--Houston [14th Dist.] 1998, no pet.). When the moving party establishes facts entitling it to prevail, the trial court will not deny a motion for summary judgment because the opposing party has merely alleged matters which might require a different judgment be rendered but has produced no such evidence. American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994); Kuper v. Schmidt, 338 S.W.2d 948, 951 (Tex. 1960). In deciding whether a disputed material fact issue precludes summary judgment, we resolve every reasonable inference in favor of the non-movant and take all evidence favorable to it as true. See Nixon, 690 S.W.2d at 548-49; Karl v. Oaks Minor Emergency Clinic, 826 S.W.2d 791, 794 (Tex. App.--Houston [14th Dist.] 1992, writ denied). Quieting Title In her motion for summary judgment, the Trustee stated that she was entitled to summary judgment because she had established title to the property. As noted earlier, the Trustee brought forward evidence establishing her title to the property. See Ramsey v. Jones Enters., 810 S.W.2d 902, 903-904 (Tex. App.--Beaumont 1991, writ denied) (defendants introduced warranty deed and timber deed; plaintiff's title examiner's testimony concerning sufficiency of plaintiff's title not enough to establish title in plaintiff). The parties do not dispute that a cloud on the title existed. See Frost v. Molina, 595 S.W.2d 184, 187 (Tex. App.--Corpus Christi 1990, writ dism'd w.o.j.) (suit to quiet title requires allegation of adverse claim). Therefore, the Trustee met her burden of establishing her entitlement to quiet title in her name. The question then becomes whether Higginbotham went forward with evidence sufficient to defeat the Trustee's entitlement to summary judgment. See Centeq, 899 S.W.2d at 197. We hold that she did not. Higginbotham complains in her first point of error of the exclusion of certain evidence that she offered in support of her response to the motion for summary judgment. Much of Higginbotham's point of error is devoted to explaining why the bases for the trial court's order sustaining the Trustee's objections are incorrect. Because the trial court simply sustained or denied objections, without giving reasons, Higginbotham is really attacking the reasons offered by the Trustee in her motion to strike. We have isolated the specific statements that Higginbotham claims were improperly struck to consider whether their exclusion affected the rendition of the summary judgment. See Tex. R. App. P. 44.1(a). We conclude they did not. Even considering the excluded evidence, Higginbotham did not raise a fact issue concerning who held title to the property. (4) Higginbotham complains that the following two statements were improperly excluded: Shortly after I purchased the home, an agreement was arranged between myself, my sister Madelene Marena Gillespie and a lender; My sister was to sign a note for the purchase of said home but I was to make all the payments. The two statements are simply assertions of an oral agreement that Higginbotham was the property's owner; as we have previously held, such an assertion of an oral conveyance does not create a title issue. The exclusion of these two statements could not have caused the improper rendition of summary judgment. See Tex. R. App. P. 44.1(a). Higginbotham also complains of the exclusion of her statement, "At the time I knew she left a will, but the Will did not mention the property located at 702 Starcrest, since it was already given to me." This statement again refers to the alleged oral transfer. We conclude that even if the trial court erred in excluding this evidence of an alleged oral transfer, Higginbotham was not harmed. We overrule point one. In her second point of error, Higginbotham complains that the rendition of summary judgment was improper. Most of this point attacks judicial estoppel as a basis for summary judgment. As noted earlier, the summary judgment order was general, in response to multiple theories offered in the Trustee's motion; we may affirm on any meritorious ground. See Harwell, 896 S.W.2d at 173. Having already decided that the Trustee established title and that none of Higginbotham's evidence raised a fact issue as to title, we overrule the second point of error. Conclusion We conclude that the Trustee established her right to have title quieted in her name. Because Higginbotham failed to offer any evidence that raised a fact issue as to title, we affirm the trial court's summary judgment in favor of the Trustee. Bea Ann Smith, Justice Before Justices Kidd, B. A. Smith, and Puryear Affirmed Filed: March 29, 2001 Do Not Publish 1. Jason Higginbotham, Mary's son, was named as a defendant in this suit because in previous litigation he claimed an ownership interest in the property in question. Because all of the issues raised in this appeal concern an alleged transaction between Mary and her sister Madeline Marena Gillespie, and because Jason appears to have no interest separate from his mother's, we will refer to Mary Higginbotham as Higginbotham without further reference to Jason. 2. The same documents are part of the record in this case. 3. There are certain exceptions not applicable here. See Hooks v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921) (exceptions to parol evidence rule). 4. We note that multiple theories were alleged in the motion for summary judgment, including judicial estoppel. Because we hold that summary judgment was justified on other grounds, we do not consider these other theories. Some of the proffered evidence went to those theories; therefore, we do not consider that evidence. gginbotham claims were improperly struck to consider whether their exclusion affected the rendition of the summary judgment. See Tex. R. App. P. 44.1(a). We conclude they did not. Even considering the excluded evidence, Higginbotham did not raise a fact issue co