No. 01-10-00115-CV
Opinion issued December 23, 2010.
On Appeal from the County Court No. 3, Fort Bend County, Texas, Trial Court Cause No. 08-CPR-020890A.
Panel consists of Justices JENNINGS, ALCALA, and SHARP.
TERRY JENNINGS, Justice.
Appellant, Donald J. Willy, Independent Executor of the Estate of Joan Susan Willy, deceased, challenges the trial court's rendition of summary judgment in favor of appellees, Rosetta Lee Winkler and Stanley Winkler, in Willy's declaratory judgment action against the Winklers. In three issues, Donald contends that the trial court erred in declaring that his deceased wife, Joan, held accounts with her mother, Rosetta, "in joint tenancy with rights of survivorship," in granting summary judgment in favor of the Winklers when the Winklers did not file a summary judgment motion, and in granting summary judgment on grounds that were not asserted in any summary judgment motion. We reverse and remand.
Background
In his original petition, Donald alleged that in 1989, Joan and Rosetta created a joint account with AG Edwards, the account earned interest and "became community property under Texas law," the Willys paid all taxes on the account, Joan died in November 2007 with a will, the account became "property of the estate" under that will, and Donald was appointed independent executor of Joan's estate. Donald further alleged that after Joan's death, unbeknownst to him and pursuant to the Winklers' instructions, AG Edwards transferred the account to "the beneficial ownership of Rosetta." When Donald learned of this transfer, he notified AG Edwards of the dispute, and AG Edwards reversed the transfer. Donald sought a declaration that the account was held in "joint tenancy," the Winklers had no legal interest in the account, and the account belonged to Joan's estate and passed pursuant to Joan's will. He requested an injunction prohibiting the Winklers from receiving any asset subject to the lawsuit as well as damages for the "lost value" of the securities contained in the account. The Winklers filed a special appearance and answer, generally denying Donald's allegations. Donald subsequently filed a motion for partial summary judgment, seeking a declaration that Joan's estate owned the accounts and that the accounts were not held in "joint tenancy with a right of survivorship." He attached to his motion the governing AG Edwards account documents, which he asserted did not include language required by the Probate Code to create a "right of survivorship in joint accounts." Donald asserted that he had not signed any agreement consenting to Joan's maintenance of a joint account with rights of survivorship with Rosetta and, under Texas law, the establishment of a "joint account by a parent with a child" evidenced Rosetta's intent to make a gift of the account to Joan. Donald argued that this "presumption" was confirmed by his affidavit testimony that Joan's social security number appeared on the account, the account income and transactions were reported to the IRS only under Joan's social security and tax identification numbers, the Willys paid all taxes on the account in their joint tax return, and Joan managed the account, withdrew sums, and acted as the account's owner. In their response to Donald's summary judgment motion, the Winklers asserted that the account agreement established a right of survivorship and Donald failed to present summary judgment evidence establishing a community interest in the account. They argued that if the account was a gift, then the account constituted Joan's separate property and Donald's consent was not necessary for Joan to maintain an account with her mother with a right of survivorship. In the final paragraph of their response, the Winklers asserted that "summary judgment [was] inappropriate" and "unresolved fact issues preclude[d]" the granting of summary judgment in Donald's favor. Significantly, they did not separately seek summary judgment, nor did they separately request that the trial court enter, as a matter of law, a declaration in their favor. Nevertheless, the trial court, after considering Donald's summary judgment motion and the Winklers' response, entered a judgment declaring that the AG Edwards account and the American Funds account were held by Joan and Rosetta "in joint tenancy with rights of survivorship." The trial court also declared that, upon Joan's death, the accounts became Rosetta's exclusive property, and it denied Donald's request for injunctive relief and claim for damages for lost value. Standard of Review
To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and there is no genuine issue of material fact. TEX.R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When deciding whether there is a disputed, material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in her favor. Id. at 549. We review declaratory judgments under the same standards as other judgments and decrees. See TEX. CIV. PRAC. REM. CODE ANN. § 37.010 (Vernon 2008); Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 730 (Tex. App.-Houston [14th] 2003, no pet.). Summary Judgment
In his second and third issues, Donald argues that the trial court erred in granting summary judgment in favor of the Winklers because they did not move for summary judgment and the trial court's summary judgment was based on grounds that were not asserted in any summary judgment motion. A trial court may not grant summary judgment in favor of a party that does not properly move for it by motion. See Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex. 1984); Sw. Invs. Diversified, Inc. v. Estate of Mieszkuc, 171 S.W.3d 461, 468 n. 15 (Tex. App.-Houston [14th] July 26, 2005, no pet.); see also Young v. Hodde, 682 S.W.2d 236, 237 (Tex. 1984) (per curiam) (agreeing with court of appeals that "trial court erred in rendering the take-nothing judgment against" defendant's counterclaim "in the absence of a motion for summary judgment by [the plaintiff] seeking that relief"); Hodde v. Young, 672 S.W.2d 45, 47 (Tex. App.-Houston [14th] 1984, writ ref'd n.r.e.) (stating that "summary judgment may be granted only in favor of a party who has moved for summary judgment and whose evidence offered in support of the motion establishes the movant's right to judgment as a matter of law"). Moreover, it is well settled that a trial court cannot grant a summary-judgment motion on grounds not presented in a motion. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). Here, Donald was the only movant for summary judgment below, and he sought only a partial summary judgment in regard to his declaratory judgment action. Donald's only summary judgment evidence pertained to an AG Edwards account. Although there are pleadings related to an American Funds account and the trial court's judgment provides a declaration related to an American Funds account, there is no summary judgment evidence related to any American Funds account. Moreover, Donald did not seek summary judgment on his other claims, including his claim for damages for the alleged lost value of securities in the account or accounts. Most significantly, the Winklers did not move for summary judgment, and they did not request in a summary judgment motion that the trial court make the declarations that it ultimately made in its final judgment. In fact, in their summary judgment response, the Winklers argued that summary judgment was not appropriate because there were fact issues that could not be properly resolved by summary judgment. The Winklers also did not seek summary judgment on Donald's claims for injunctive relief or damages resulting from the alleged loss of value in securities. Yet, the trial court entered summary judgment in the Winkler's favor, declaring that both accounts were subject to Rosetta's exclusive control and denying Donald's other claims for relief. Accordingly, we hold that the trial court erred in granting summary judgment in favor of the Winklers, who never moved for the judgment entered by the trial court. See Teer, 664 S.W.2d at 703. We sustain Donald's second and third issues. Conclusion
We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.