Robin Reindl Greene and Karen Reindl Koch v. Rose Casteel Glass, Independent Administrator of the Estate of Alicia Marcos-Diaz Reindl

Affirmed and Memorandum Opinion filed October 16, 2007 Affirmed and Memorandum Opinion filed October 16, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00787-CV ____________ ROBIN REINDL GREENE AND KAREN REINDL KOCH, Appellants V. ROSE CASTEEL GLASS, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF ALICIA MARCOS-DIAZ REINDL, Appellee On Appeal from the Probate Court No. 1 Harris County, Texas Trial Court Cause No. 354431-401 M E M O R A N D U M   O P I N I O N This appeal involves competing motions for summary judgment concerning the ownership of a 1/3 interest in real property in Harris County. Concluding that the trial court did not err in granting the summary judgment motion of appellee Rose Casteel Glass, Independent Administrator of the Estate of Alicia Marcos-Diaz Reindl, and denying the partial summary judgment motion of appellants Robin Reindl Greene and Karen Reindl Koch, we affirm. Factual and Procedural Background The real property in dispute consists of six contiguous tracts of land located at 314, 315, 316, 317, 318, and 320 Shelley Street, Houston, Harris County, Texas. In the 1930=s, undivided 1/3 interests in the real property were left to siblings Rudy J. Reindl, Charlotte Reindl and Karl J. Reindl by their parents, Sofie[1] and Joseph Reindl. Greene and Koch are Rudy Reindl=s daughters and the granddaughters of Sofie and Joseph (hereinafter ARudy=s daughters@). In September 1982, Rudy executed a hand-written document, acknowledged by a notary public, reciting the following: AI Rudy J. Reindl give to my brother, Karl J. Reindl, my share of the Joseph Reindl estate.@ For convenience, we will refer to this document as Athe writing.@ In June 1989, Karl recorded the writing in the real property records of Harris County. Later, in March 1991, Charlotte conveyed her undivided 1/3 interest in the real property to Karl by warranty deeds. In 2003, Karl died, having bequeathed his interest in the real property to his wife, Alicia Marcos-Diaz Reindl. In the probate proceeding, Alicia filed a sworn inventory of Karl=s estate, reflecting that Karl owned an undivided 2/3 interest in the real property. The inventory did not identify who owned the remaining 1/3 interest. Alicia Reindl died in November 2004 without a will, and left no spouse, children, or parents to inherit her property. Her remaining heirs are her nieces and nephews. Glass, the independent administrator of Alicia=s estate, is one of Alicia=s nieces (hereinafter Athe administrator@). In September 2005, Rudy=s daughters filed an application for the probate of Rudy Reindl=s last will and testament as a muniment of title to establish their 1/3 interest in the real property.[2] Contemporaneously, they also filed an original petition for partition, declaratory judgment, and accounting against the administrator. In response, the administrator answered with a general denial and asserted the affirmative defenses of laches and limitations; she later counterclaimed for title to and possession of the real property based on the writing, and alternatively pleaded ownership by adverse possession. Rudy=s daughters filed a no-evidence and traditional partial summary judgment motion, asserting that the writing was not sufficient to convey Rudy=s 1/3 interest in the real property to Karl, and that Karl and Alicia did not adversely possess the property. Rudy=s daughters also sought to have the real property sold and a receiver appointed to handle the sale, and to recover their reasonable attorney=s fees. In response, the administrator argued that (1) Rudy=s daughters were not entitled to a declaratory action to establish their ownership interest because a trespass to try title action is the only accepted method of determining title to land, citing Martin v. Amerman, 133 S.W.3d 262 (Tex. 2004); (2) the writing was sufficient to transfer Rudy=s 1/3 interest in the real property to Karl under Texas Probate Code section 37B;[3] and (3) a ten-year adverse possession period began when Karl recorded the writing in 1989, and was thus established in 1999. The administrator then moved for summary judgment on her counterclaim, and asserted that her superior title to the real property arose from the writing, which established Rudy=s gift of his interest in Joseph Reindl=s estate. Rudy=s daughters responded that the writing was insufficient as either a gift deed or evidence of a parol gift, and further asserted there was no adverse possession. On March 30, 2006, the trial court granted the administrator=s motion for summary judgment. During the hearing on the motions for summary judgment, the trial court stated that it was granting the administrator=s motion on the basis that the writing Aconstitutes a valid gift of assignment of the parties= interest in the Estate,@ but the written order does not specify the grounds on which it was based. After additional procedural issues not relevant here were addressed, this appeal followed. Issues on Appeal On appeal, Rudy=s daughters contend the trial court erred in denying their motion for summary judgment and granting the administrator=s motion for summary judgment because (1) it did so on grounds not before the court; and (2) the writing is insufficient to transfer title to real property. We address these arguments as necessary to resolve the appeal below. I. Standards of Review We review all summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We apply the usual standards of review for traditional and no-evidence motions for summary judgment. See, e.g., Provident Life & Accident Ins. Co. v. Knott, 128 SW.3d 211, 215B16 (Tex. 2003) (standard of review of traditional motion for summary judgment); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750B51 (Tex. 2003) (standard of review of no-evidence motion for summary judgment). When a trial court=s order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). When both parties move for partial summary judgment on the same issues and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides, determine all questions presented, and render the judgment the trial court should have rendered. Valence, 164 S.W.3d at 661. II. The Grounds Upon Which the Administrator=s Summary Judgment Was Based In this issue, Rudy=s daughters contend the trial court erred because it granted the administrator=s motion for summary judgment on a ground not raised in her motion. A motion for summary judgment must expressly present the grounds upon which it is made, and must stand or fall on these grounds alone. Johnson v. Brewer & Prichard, P.C., 73 S.W.3d 193, 204 (Tex. 2002); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); see Tex. R. Civ. P. 166a(c) (AThe motion for summary judgment shall state the specific grounds therefor.@). Here, Rudy=s daughters point to the trial court=s statements during the hearing that it was denying the administrator=s trespass to try title and adverse possession claims, but was granting the administrator=s motion for summary judgment because it concluded Aas a matter of law@ that the writing Aconstitutes a valid gift of an assignment of the parties= interest in the Estate.@ However, the written order granting summary judgment does not specify the grounds on which it was based; therefore, it may be affirmed if any of the theories advanced below are meritorious. See Carr, 776 S.W.2d at 569; see also In re J.J., 900 S.W.2d 353, 356 (Tex. App.CTexarkana 1995, no writ) (written judgment controls over court=s oral pronouncements); Nine Greenway Ltd. v. Heard, Goggan, Blair & Williams, 875 S.W.2d 784, 787 (Tex. App.CHouston [1st Dist.] 1994, writ denied) (same).[4] We overrule the first issue raised by Rudy=s daughters. III. The Sufficiency of the Writing to Transfer Title to Real Estate In their second issue, Rudy=s daughters contend the writing is insufficient to transfer title to real property because there are only two ways to make a gift of real estateCby deed or by parol giftCand the writing does not satisfy the requirements for either. For the reasons stated below, we conclude that the writing is effective as a parol gift of real estate and therefore the trial court=s grant of summary judgment may be affirmed on that basis.[5] A. The Requirements for a Parol Gift of Real Estate are Met Generally, a conveyance of real property must be in writing. See Tex. Bus. & Com. Code ' 26.01; Tex. Prop. Code ' 5.021. However, a gift of realty can be made in two ways: either by deed or by parol gift. Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex. App.CDallas 2006, no pet.). To relieve a parol gift of real estate from the requirement of a writing, one must show three elements: (1) a gift in praesenti, that is, a present gift; (2) possession under the gift by the donee with the donor=s consent; and (3) permanent and valuable improvements, made on the property by the donee with the donor=s knowledge or consent or, without improvements, the existence of such facts as would make it a fraud upon the donee not to enforce the gift. Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191, 192B93 (1951); Thompson v. Dart, 746 S.W.2d 821, 825 (Tex. App.CSan Antonio 1988, no writ); Grimsley v. Grimsley, 632 S.W.2d 174, 178 (Tex. App.CCorpus Christi 1982, no writ). To be a present gift, the donor must, at the time he makes it, intend an immediate divestiture of the rights of ownership out of himself and a consequent immediate vesting of such rights in the donee. Thompson, 746 S.W.2d at 825. The three elements which constitute a gift are (1) donative intent, (2) delivery of the property, and (3) acceptance of the property. Id. All dominion and control over the property must be released by the owner. Id. The party claiming a parol gift has the burden of establishing these elements. Id. Rudy=s daughters contend that none of the requirements for a parol gift have been met. First, they contend that the writing does not evidence Rudy=s intent to make a present gift of the real property because the writing does not specifically identify the property by words like Aproperty,@ Aland,@ or Ahouses.@ However, undisputedly Rudy, Karl, and Charlotte Reindl each received a 1/3 interest in the real property at issue. The writing evidences Rudy=s present intent to give Karl all of his Ashare of the Joseph Reindl estate,@ which would necessarily have included the real property, on September 21, 1982, when it was executed and notarized. See Brown v. Moss, 265 S.W.2d 613, 617 (Tex. Civ. App.CFort Worth, 1954, writ ref=d n.r.e.) (holding deed containing insufficient property description was admissible to substantiate claim of parol gift). Second, Rudy=s daughters contend there was no evidence of delivery, acceptance, and possession of the real property, because Rudy and Karl were tenants in common before 1982, and the status quo did not change after the writing was executed. However, Rudy=s daughters point to no evidence in the record that Rudy also lived on the property, and we have found none. Nor is there any evidence that Rudy repudiated the gift or acted in any way that was inconsistent with consent to Karl=s possession of the real estate after 1982. As discussed in greater detail below, the only evidence in the record was that Karl and Alicia lived continuously on the property and acted in a manner consistent with exclusive ownership.[6] Third, Rudy=s daughters assert there is no evidence that permanent and valuable improvements were made to the real property, and assert that no evidence supports the conclusion that not enforcing the alleged gift would work a fraud on the estate. Instead, they argue that it would work a fraud on them to enforce the gift because they would be deprived of their inheritance. However, in support of her motion for summary judgment, the administrator argued and averred in an affidavit that Karl and Alicia lived on the property continuously from 1978 until their deaths, and that they leased portions of the property to other individuals, collected all rents, performed maintenance, and paid property taxes on the real property. Angelica Casteel, Alicia=s sister, attested to similar facts.[7] The administrator further testified by affidavit that she only learned of Rudy=s daughters= claim to 1/3 interest in the real property on or about June 1, 2005, and as of February 14, 2006, had found no documents or other items among the effects of either Karl or Alicia Reindl which reflected any ownership interest in the real property. Although not evidence of permanent and valuable improvements, this evidence supports the third requirement that, in the absence of such evidence, there exist such facts as would make it a fraud upon the estate not to enforce the gift. As Rudy=s daughters recognize, a parol gift of real estate is a creature of equity, and this evidence demonstrates that Karl and Alicia lived on the real property and took actions consistent with exclusive ownership of that property for over thirty years, unchallenged by Karl. It is also consistent with Rudy=s intent as expressed in the writing. Thus, contrary to Rudy=s daughters= arguments, we conclude that, on these facts, failing to acknowledge Rudy=s gift to Karl work a fraud on the estate.[8] B. No Genuine Issues of Material Fact are Raised In addition to challenging the evidence supporting the requisites of a parol gift, Rudy=s daughters also contend that they raised genuine issues of material fact precluding summary judgment for the administrator. They point to two specific items: (1) the inventory Alicia Reindl filed in the probate of Karl=s estate, reflecting that Karl owned a 2/3 interest in the real property, rather than all of it; and (2) the warranty deeds filed by Charlotte when she conveyed her 1/3 interest in the real property. We turn first to the inventory. Although the inclusion or exclusion from an inventory of certain property may be prima facie evidence ownership of such property, it is not conclusive proof on that issue. Tex. Prob. Code ' 261; Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48, 50 (1962). An order of the probate court approving an inventory is not an adjudication of title. McKinley v. McKinley, 496 S.W.2d 540, 542 (Tex. 1973); Balaban v. Balaban, 712 S.W.2d 775, 779 (Tex. App.CHouston [1st Dist.] 1986, writ ref=d n.r.e.). Here, the inventory filed by Alicia does not indicate who is the owner of the other 1/3 interest in the estate; it merely affirms that Karl owned at least a 2/3 interest, which is undisputed. It is unknown whether Alicia was aware of either the writing or Charlotte=s warranty deeds transferring her interest to Karl. Moreover, there is no indication that title to any part of the property was in question at the time of the inventory, and the court=s order approving the inventory makes no express determination of title to the real property. Thus, even indulging all reasonable inferences in favor of Rudy=s daughters, Alicia=s inventory does not raise a genuine issue of material fact that Karl did not own the 1/3 interest in dispute. It does not identify who is or may be the owner, and at most demonstrates that Alicia did not believe that Karl had obtained either Rudy=s or Charlotte=s 1/3 interest. But, Alicia=s belief cannot nullify the legal effect of the parol gift made by Rudy to Karl. As discussed above, the parol gift is demonstrated by the writing transferring Rudy=s share of his father=s estate to Karl, the evidence that Karl and Alicia lived on the real estate continuously until their deaths and took actions consistent with exclusive ownership, unchallenged by Rudy, and the administrator=s affidavit testimony that she found no documents or other items reflecting that Rudy=s daughters have any ownership interest in the real property. On the facts and circumstances of this case, therefore, we disagree that Alicia=s inventory raises a genuine issue of material fact precluding summary judgment. We reach the same conclusion concerning the different methods Rudy and Charlotte used to transfer their 1/3 interests to Karl. Rudy=s daughters assert that Charlotte=s use of warranty deeds to convey her interest to Karl indicates that AKarl Reindl understood the importance of proper warranty deeds to effectuate transfer of real property, but choose [sic] not to have his brother sign a corresponding set of deeds.@ We disagree with this contention for several reasons. As Rudy=s daughters themselves make clear, a gift of real estate may be made one of two waysCby deed or by parol gift. See Troxel, 201 S.W.3d at 297. Thus, in this case, Charlotte=s conveyance of her interest by deeds does not reasonably lead to the inference that Rudy knew that any other method was necessarily ineffective. See id. at 300 (affirming summary judgment in appellee=s favor because the evidence established both a gift of property by deed and by oral gift). At most, one might infer that Charlotte believed that employing warranty deeds was an effective way to convey her interest, but Charlotte=s intent is not at issue here. Further, Charlotte conveyed her interest to Karl in 1991, approximately nine years after Rudy executed the writing, and nearly two years after Karl recorded the writing in the real property records of Harris County. There is no evidence to indicate that Karl believed that the writing, executed and filed years earlier, was ineffective because Charlotte later conveyed her interest by warranty deeds. Indeed, the inference Rudy=s daughters suggest would be reasonable only if there were evidence that Karl sought to obtain warranty deeds from Rudy after Charlotte made her conveyance. There also is no evidence that Rudy knew that Charlotte also conveyed her interest in the property to Karl. Thus, we conclude that, on this record, the evidence Rudy=s daughters point to does not raise a genuine issue of material fact precluding summary judgment. C. Republic National Bank of Dallas v. Stetson Does Not Apply Finally, Rudy=s daughters claim that the parol gift must fail because it lacks a sufficiently specific description of the property conveyed, citing Republic National Bank of Dallas v. Stetson, 390 S.W.2d 257 (Tex. 1965). In that case, the Texas Supreme Court stated the general rule that Athe description in a written conveyance must furnish within itself or by reference to some other existing writing, the means or data by which the particular land conveyed can be identified.@ Id. at 262B63. Concluding that an alleged parol gift of undescribed land to Stetson was void, the Court went on to state: AWe can think of no reason that the description of land which is the subject of a parol gift should not be governed by the settled rule for written conveyances. Indeed the dangers which the statutes sought to guard against are greater in the case of oral conveyances.@ Id. at 263. According to Rudy=s daughters, an interest in real estate, vested for almost fifty years, cannot be transferred by Aa document which does not even come close to including a description@ of the land conveyed. However, we find Stetson distinguishable. In that case, Stetson never provided any description of the land purportedly orally given to him; there were no pleadings or evidence to identify it, and it could not be located by any improvements. Id. at 262. At the end of the trial, no one knew or had any data from which the boundaries of the alleged gift could be determined. Id. Indeed, even Stetson did not know the boundaries of the land given. Id. at 263. In holding that the alleged parol gift of land violated the statute of frauds, the Texas Supreme court stated that its policy and reasoning against parol conveyances of land was to avoid uncertain and unsettled land titles resting in parol, fraud and perjury. Id. at 262. That problem is not present here. Here, as evidenced by the writing and the other evidence discussed above, Rudy made a parol gift of his interest in his father=s estate to Karl. There is no dispute that Rudy, Karl, and Charlotte each inherited an undivided 1/3 interest in the real property at issue from their father. Nor is there any dispute about the description, location or boundaries of this real property. Therefore, the Texas Supreme Court=s stated policy and reasoning against parol conveyances of land do not pose a stumbling block in this case; Stetson does not apply. See id. at 262; see also Galerie D=Tile, Inc. v. Shinn, 792 S.W.2d 792, 795 (Tex. App.CHouston [14th Dist.] 1990, no writ) (holding that, when parties had full knowledge of real property to be conveyed by in-court settlement agreement, the equities of the situation removed the case from the operation of the statute of frauds). We overrule the second issue raised by Rudy=s daughters. Conclusion We overrule all of the issues of Rudy=s daughters and affirm the trial court=s order granting the administrator=s motion for summary judgment. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed October 16, 2007. Panel consists of Chief Justice Hedges, Justice Fowler, and Senior Justice Edelman.* *Senior Justice Richard H. Edelman sitting by assignment. [1] Although Glass=s brief refers to ASophie@ Reindl, her last will and testament reflects that her name was spelled ASofie.@ [2] The application reflects that Rudy Reindl died in 1997. [3] Section 37B provides in relevant part: AA person entitled to receive property or an interest in property from a decedent under a will, by inheritance, or as a beneficiary under a life insurance contract, and who does not disclaim the property under Section 37A of this code, may assign the property or interest in property to any person.@ Tex. Prob. Code ' 37B(a). [4] We note that the trial court=s oral pronouncement and the administrator=s motion for summary judgment both referenced a Agift@ of Rudy=s interest in the estate to Karl; therefore, we cannot necessarily conclude that the motion for summary judgment was granted on grounds not expressly presented in the motion. Moreover, the administrator=s motion cited to Grimsley v. Grimsley, 632 S.W.2d 174 (Tex. App.CCorpus Christi, 1982, no writ), in which the court recited the elements required to establish a parol gift of real estate, see id. at 178, and Rudy=s daughters responded that, among other things, the administrator failed to demonstrate that the writing constituted a parol gift of real estate. Therefore, Rudy=s daughters= response reflects their understanding that the motion was based on a theory that Rudy transferred his interest in the real estate to Karl by the gift of his interest in their father=s estate. [5] Because of our disposition of this issue, we do not address the other sub-issues and arguments raised in the parties= appellate briefs. [6] Even if Rudy and Karl were tenants in common, that would not necessarily preclude the conclusion that a parol gift of the real property was intended. See, e.g,, Wilson v. Mitchell, 299 S.W.2d 406, 408 (Tex. Civ. App.CDallas 1957, no writ), overruled in part on other grounds by Griffin v. H.L. Peterson Co., 427 S.W.2d 140 (Tex. Civ. App.CDallas 1968, no writ) (stating that when other conditions are met, joint occupancy will not defeat a parol gift); Scott v. Cliett, 213 S.W.2d 562, 565 (Tex. Civ. App. GalvestonC1948, no writ) (noting that when a parol gift is established, possession by the donee need not be exclusive); Davis v. Douglas, 15 S.W.2d 232, 233 (Tex. Comm=n App. 1929, holding approved) (stating that evidence was sufficient to support possession by donee with consent of donor even though donor continued to live on property). [7] Rudy=s daughters assert that the affidavits are conclusory because they are not accompanied by evidence of rents collected, who paid the taxes, or Awhat arrangement or understanding existed between Rudy and Karl Reindl@ and they do not state the basis for their personal knowledge. However, the administrator=s affidavit avers that she is the independent administrator for the estate of Alicia Reindl and the successor independent executrix for the estate of Karl Reindl, and that Alicia Reindl was her aunt. Further, she avers that, after Alicia Reindl=s death, she Areviewed all documents and records located in her residence,@ and also Afound no documents or other items among the effects of either Karl Reindl or Alicia Reindl which reflect any ownership interest@ by Rudy=s daughters in the real property. In Angelica Casteel=s affidavit, she avers that she is Alicia Reindl=s sister and the sister-in-law of Karl Reindl, and that she previously disclaimed her interest in Alicia=s estate. She also avers that, following Alicia=s death, she and the administrator inspected the contends of Alicia=s residence. In addition, the affidavits are capable of being contradicted. See Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) (summary judgment based on uncontroverted affidavit of interested witness is proper if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted). Had Rudy=s daughters desired to do so, for example, they could have obtained information from the county tax records to determine who paid the taxes on the property. Accordingly, we disagree that the affidavits are conclusory. [8] We note that part of the relief sought by Rudy=s daughters was an accounting and a share of the rents and profits collected over this approximately thirty-year period.