Brooks v. Sherry Lane Nat. Bank, 05-89-00701-CV

• Decision Date: 28 March 1990
• Docket Number: No. 05-89-00701-CV,05-89-00701-CV
• Citation: 788 S.W.2d 874
• Parties: Betty BROOKS, Intervenor-Appellant, v. SHERRY LANE NATIONAL BANK, Appellee.
• Court: Texas Court of Appeals

Page 874

788 S.W.2d 874

Betty BROOKS, Intervenor-Appellant, v. SHERRY LANE NATIONAL BANK, Appellee.

No. 05-89-00701-CV.

Court of Appeals of Texas,

Dallas.

March 28, 1990.

H. Dawson French, Dallas, for intervenor-appellant.

Lindy D. Jones, Lee Anne Stewart, Dallas, for appellee.

Before ROWE, LAGARDE and THOMAS, JJ.

OPINION

LAGARDE, Justice.

Betty Brooks, intervenor, appeals a summary judgment in favor of appellee, Sherry Lane National Bank (Sherry Lane), and raises two points of error. Brooks contends that Sherry Lane's motion for summary judgment should have been denied and that her own motion for summary judgment should have been granted. Alternatively, Brooks contends that Sherry Lane's motion should not have been granted because her motion in opposition and accompanying affidavits raised a material fact issue requiring resolution by a finder of fact. For the reasons set forth below, we overrule appellant's points of error and affirm the summary judgment in favor of Sherry Lane.

Briefly, the background of this dispute involves a loan made to Brooks's husband. In connection with this loan, Sherry Lane obtained a writ of garnishment against certain property of the husband, including a checking account and a money market account at the First Texas Savings Association. ¹ Brooks then filed a plea in intervention, which the trial court granted. In this plea, Brooks essentially alleged that both accounts were either her separate property or her special community property subject to her sole management and control; therefore, Sherry Lane could not garnish these funds to satisfy her husband's nontortious liabilities. Sherry Lane responded by filing a motion for summary judgment asserting that it was entitled to the funds as a matter of law because the accounts qualify as joint community property and are subject to claims from either spouse's creditors. Brooks answered this motion for summary judgment by filing a sworn response, and she also filed her own motion for summary judgment. Sherry Lane objected to Brooks's response, and specifically to the affidavit in support thereof, as being riddled with hearsay, legal conclusions, and violations of both the parol evidence and best evidence rules. The trial court struck portions of Brooks's response and accompanying affidavit. The record reflects that Brooks did not object to this action by the trial court. Thereafter, the trial court granted Sherry Lane's motion for summary judgment.

We must now consider under appellant's first point whether appellant's entire motion for summary judgment and its accompanying exhibits entitle her to judgment as a matter of law. Under appellant's second point, we must consider whether her partially stricken response to Sherry Lane's motion for summary judgment raises an issue of material fact precluding summary judgment. The resolution of these points turns on the nature of the property as demonstrated by the various petitions, affidavits and their attached exhibits. More simply, resolution hinges on whether the bank accounts are separate, special community, or joint community property.

Under Texas statutes and case law, property possessed by either spouse during the marriage is presumptively community property. Marriage of York, 613 S.W.2d 764, 767 (Tex.Civ.App.--Amarillo 1981, no writ); TEX.FAM.CODE ANN. § 5.02 (Vernon 1975). If a party seeks to establish property as separate property, subject to his or her sole ownership and control, that party must prove the separate character by clear and convincing evidence. Marriage of York, 613 S.W.2d at 767 (character can be established by tracing); see TEX.FAM.CODE ANN. § 5.02 (Vernon 1975). If the property is community property, the Texas classification system further characterizes it as either joint community property or as special community property of either spouse. TEX.FAM.CODE ANN. § 5.22 (Vernon 1975). Property that qualifies as special community property is subject to one spouse's sole management and control even though the property counts as part of the community estate. Id. When special community property combines with the other spouse's special community property, the resulting mix constitutes joint community property. Id. When a spouse borrows money and the lender does not agree to limit payment to that spouse's separate property, then the debt constitutes a community debt; some community property is liable for its satisfaction. Latimer v. City Nat'l Bank of Colo. City, 715 S.W.2d 825, 827 (Tex.App.--Eastland 1986, no writ); Wall v. Wall, 630 S.W.2d 493, 496-97 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.) (presumption of joint community debt). The special community property of a spouse is not liable, absent agreement, for the nontortious liabilities that the other spouse incurs during marriage. See Bice v. Campbell, 231 F.Supp. 948, 951 (N.D.Tex.1964) (construing TEX.REV.CIV.STAT.ANN. art. 4616, a predecessor to the present statute); TEX.FAM.CODE ANN. § 5.61(b)(2) (Vernon 1990) (present statute).

A summary judgment is proper when there is no genuine issue of material fact and one party is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); see City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). This means that a movant must conclusively prove all elements of his cause of action or defense. Id. A defendant moving for summary judgment has the burden of showing as a matter of law that the plaintiff has no right to recover. Lawrence v. TD Industries, 730 S.W.2d 843, 844 (Tex.App.--Dallas 1987, writ ref'd n.r.e.). When a plaintiff shows entitlement to a summary judgment, the nonmovant defendant seeking to avoid the judgment must present to the trial court proof adequate to raise a fact issue. Woolhouse v. Tolchin Instruments, Inc., 601 S.W.2d 106, 108 (Tex.Civ.App.--Dallas 1980, no writ) ("If the opposing party expects to defeat a motion for summary judgment by alleging an issue of fact, it is incumbent on him to come forward with evidence sufficient to raise the question").

Summary judgments do not operate to deprive a litigant of his right to a full hearing on the merits of genuine fact issues; properly used, the procedure eliminates patently unmeritorious claims and untenable defenses. Utilities Pipeline v. American Petrofina, 760 S.W.2d 719, 721 (Tex.App.--Dallas 1988, no writ). In reviewing the summary judgment evidence in this case, this Court must consider the evidence in the light most favorable to the nonmovant, resolving any doubts in the nonmovant's favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985); Wilcox v. St. Mary's Univ., 531 S.W.2d 589, 593 (Tex.1975).

We first examine the summary judgment evidence presented by the appellee, Sherry Lane, noting that although Sherry Lane must conclusively establish its right to recover, the property of Brooks and her husband is statutorily presumed to be community property. In support of its motion, Sherry Lane attached three exhibits, including various financial records and depositions of Brooks and her husband. The exhibits establish the following: (1) Brooks's husband considered the checking account to be Brooks's property, though his name appeared on the account and he wrote several checks on the account; (2) a real estate parcel, deeded in both names, was considered by the couple to be Brooks's property, and, when sold, the proceeds were placed in Brooks's savings account; (3) Brooks's husband also considered the savings account to be separate property, though he is a signatory on the account; (4) the couple had an informal oral agreement, made before the accounts were opened, that the accounts belonged to Brooks; (5) the realty had been bought with an inheritance that Brooks received; (6) Brooks's husband gave her a monthly allowance for her checking account; (7) the savings account was established with $3,500 from a prior savings account of Brooks and $1,500 that her husband gave to her; and (8) the sum presently in the savings account includes an undetermined amount of interest.

We hold that this evidence entitles Sherry Lane to a summary judgment because the proof presented conclusively establishes that the accounts...