Opinion
No. 05-03-00226-CV.
Opinion Filed: February 6, 2004.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. PB001-177A-00.
Reversed and Remanded.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
In this probate matter, Billie Taylor, executor of the estate of Levesta D. Perry, appeals the trial court's summary judgment in favor of William H. Perry. Because we conclude Perry failed to establish that he was entitled to summary judgment as a matter of law, we reverse the judgment and remand for proceedings consistent with this opinion.
Perry is the brother of Levesta D. Perry, who died in 2000. Perry alleged that his sister named him beneficiary of two certificates of deposit by a payable on death designation. Perry alleged Taylor, as executor of the estate, refused to release the CDs to him, and the bank refused to release the funds to him without delivery of the actual CDs. Perry filed a declaratory judgment action requesting the trial court to order Taylor to produce the original certificates of deposit in which he was named beneficiary. Taylor answered with a general denial.
Perry then filed a motion for summary judgment asserting he was entitled, as a matter of law, to the CDs. He attached Exhibits A, B, C, D, and E to the motion. Exhibits A and B are purportedly copies of the two certificates of deposit, but the exhibits are not authenticated; Exhibits C and D are each a one-page excerpt of the oral deposition of Carole Nixon, who is not otherwise identified; and Exhibit E is the affidavit of Perry's attorney in support of attorney's fees.
The trial judge granted Perry's motion and ordered that Perry was entitled to all funds in the two certificates of deposit. The judge ordered that the CDs, which had been deposited into the court's registry, be released to Perry. Further, he awarded Perry attorney's fees. Taylor appealed.
We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex. App.-Dallas 1997, pet. denied). In doing so, we apply well-known standards. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A plaintiff, as movant, must conclusively establish all essential elements of its claim to be entitled to summary judgment. Howard v. INA County Mut. Ins. Co., 933 S.W.2d 212, 216 (Tex. App.-Dallas 1996, writ denied).
In her third issue, Taylor argues that because Perry failed to authenticate Exhibits A and B, he has failed to provide competent evidence to establish his right to summary judgment. Perry counters that because Taylor did not object on this basis in the trial court, his complaint is waived.
Documents submitted as summary judgment proof must be sworn to or certified unless they fall under the discovery documents exception. Tex. R. Civ. P. 166a(f), 166a(d). This Court has held that "[a] complete absence of authentication is a defect of substance that is not waived by a party failing to object and may be urged for the first time on appeal." Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 451 (Tex. App.-Dallas 2002, no pet.). Because of the complete absence of authentication of Exhibits A and B, we conclude this evidence was not properly before the trial court. Assuming Exhibits C and D were properly before the trial court, neither conclusively establishes Perry's right to the CDs. In each deposition excerpt, Nixon testifies that "Exhibit 1, 1A, and 1B" is an active CD payable on death to William H. Perry. The exhibit is not attached to the deposition excerpt and there is no evidence identifying the exhibit or connecting the exhibit to the CDs in dispute in this case. Because Perry failed to produce competent summary judgment proof to conclusively establish his claim, the trial court erred in granting him summary judgment. We sustain the third issue. Our resolution of this issues precluded any need to address the remaining issues. See Tex.R.App.P. 47.1.
We reverse the trial court's summary judgment and remand for proceedings consistent with this opinion.