Brownson v. New, 12485

• Decision Date: 25 March 1953
• Docket Number: No. 12485,12485
• Citation: 259 S.W.2d 277
• Parties: BROWNSON v. NEW et al.
• Court: Texas Court of Appeals

Page 277

259 S.W.2d 277

BROWNSON v. NEW et al.

No. 12485.

Court of Civil Appeals of Texas, San Antonio.

March 25, 1953.

Rehearing Denied June 10, 1953.

Carl Wright Johnson and Nat L. Hardy, San Antonio, R. E. Schneider, Jr., George West, Harry J. Schulz, Three Rivers, for appellant.

Morrill & Morrill, Beeville, Lewright, Dyer, Sorrell & Redford, Corpus Christi, for appellees.

NORVELL, Justice.

This is an appeal from a summary judgment. On December 5, 1951, appellant, Tressa Brownson, brought this suit in the nature of a bill of review to set aside a community property settlement contained in the judgment rendered by the District Court of Live Oak County, Texas, on January 8, 1940, in Cause No. 1372, entitled T. J. Brownson v. Tressa Brownson. According to the allegations of the bill, it appears that a divorce was granted to Tressa Brownson upon her cross-action; that thereafter T. J. Brownson married the appellee herein; that on April 16, 1947, Brownson died, leaving the bulk of his estate to appellee, who afterwards married J. K. New, who was joined with her as a party defendant in this suit.

The motion for summary judgment was not sworn to but simply asserted that, 'the pleadings in this action on file herein and the depositions of the Plaintiff, Mrs. Tressa (sic.), and her former attorney, show that there is no genuine issue as to any material fact and that these Defendants, the moving parties, are entitled to a judgment to be entered in this action in their favor and against all claims and demands of the Plaintiff as a matter of law.'

Upon the hearing the basis of the motion was somewhat broadened. The appellees attached thereto (without explanation in the motion itself) a copy of a deed dated September 10, 1941, whereby Leonard Jacob Corporation conveyed several tracts of land in Live Oak and McMullen Counties to T. J. Brownson. The appellant filed an affidavit in reply to the motion for summary judgment and the order granting the motion recites that in addition to the depositions referred to in the motion, the deed attached thereto and the affidavit mentioned, the Court considered the pleadings of the present case, the pleadings in the original divorce case (No. 3172), and certain transcribed testimony of T. J. Brownson given in Cause No. 3236 on the docket of the District Court of Live Oak County, entitled T. J. Brownson v. First National Bank at George West.

The basis of appellant's suit was alleged fraudulent concealment of Community assets and false representations made with reference thereto by T. J. Brownson at the time the 1940 divorce and property settlement was had. Appellees' defenses were: (1) that no false representations had been made; (2) that if such representations were in fact made, appellant had no right to rely thereon; (3) appellant was guilty of inexcusable negligence in securing the decree of divorce upon her cross-action without ascertaining the facts with reference to the community property holdings of the parties; (4) that the suit was barred by limitations, Articles 5507, 5509, 5510, 5526 and 5529, Vernon's Ann.Tex.Stats.; and (5) by the equitable doctrine of laches.

The purpose of summary judgment proceedings is to ascertain whether or not there be a genuine issue of fact in the case, Rule 166-A, Texas Rules of Civil Procedure. Issues may be raised formally by the pleadings which are without substance. Fletcher v. Krise, 73 App.D.C. 266 120 F.2d 809. In order to test whether or not any pleaded issue is a genuine one, the allegation creating the issue may be attacked by the affidavit of one competent to testify, which asserts a set of facts contrary to the allegation. If this affidavit be traversed by proper affidavit or if, in accordance with the rule a satisfactory statement be made as to inability to counter the movant's affidavit, the motion fails because the record then does not show that no genuine issue of fact exists. Rule 166-A(e); Anderson v. United States, 1 Cir., 182 F.2d 296; Burley v. Elgin, Joliet & Eastern Ry. Co., 7 Cir., 140 F.2d 488, affirmed 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, Id., 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928; McDonald, Summary Judgments, 30 Tex.Law Review 285, 296, 299; 4 McDonald, Texas Civil Practice 1379, 1388, § 17.26. When, however, as is the case there, the movant proceeds without supporting affidavits, the motion is necessarily directed solely to the adequacy of the pleading as a matter of law. Pleadings may be so faulty upon their face as to justify the rendition of a summary judgment. Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236; LeMond and Kreager, The Scope of Pleading as Proof in Summary Judgment Procedure, 30 Tex.Law Review 613, 615, citing McDonald, Summary Judgments, 30 Texas Law Review 285, 297; Suggs and Stumberg, Summary Judgment Procedure, 22 Texas Law Review 433, 438; Stayton, Notes on Summary Judgment, 13 Tex.Bar Journal 445, 446. Under certain circumstances, admissions elicited by deposition or otherwise may be considered in connection with an unsworn motion. It is a rule of public policy that a judgment can not be rendered in favor of a party upon a supposed set of facts which he clearly and unequivocally swears are untrue. 80 A.L.R. 626. This rule is sought to be invoked by appellees here.

We make the above general observations with reference to the summary judgment as much of appellees' presentation is seemingly based upon the proposition that that burden of proof was upon appellant to demonstrate that there was a genuine of fact in the case. This is not the rule. One may not put his adversary to the burden of proving his case by affidavit, so to speak, by filing a motion which is itself unsupported by affidavits. In order to 'pierce' the formal allegations of the petition, sworn statements made by persons competent to testify are essential.

In our opinion, a case for jury determination is indicated by the record before us. We hold that if all well-pleaded factual allegations of the petition be taken as true, a proper basis for recovery was stated. It was alleged that T. J. Brownson had exclusive control over all the ranching operations of the community of T. J. Brownson and Tressa Brownson; that he represented that such properties had a net worth of $38,379, whereas, the true value of the same was $189,000, and that Tressa Brownson relied upon these false statements in making the divorce settlement which awarded her property of the approximate value of $20,000. The decree of divorce, made a part of the petition, recited that a settlement of the property rights of said parties has been agreed upon by parties and set out the terms of such settlement. The court then made an adjudication of property rights in accordance with the terms of such agreement.

Appellant's deposition and affidavit is in accordance with the allegations of the petition. The transcribed testimony of Brownson in his suit against the First National Bank of George West was to the effect that in April of 1939, he was possessed of property, presumedly community, vastly in excess of the value he had represented to his wife prior to the divorce. A similar indication is contained in the deposition of John S. Brown (which was apparently also before the court for its consideration) who was an officer of the Agricultural Livestock Finance Corporation of Fort Worth, which made a number of cattle loans to Brownson. It cannot be determined as a matter of law whether the form of representations as to the nature and value of the community estate rendered them actionable or nonactionable. In fact, upon this point, a conflict of testimony is strongly indicated.

A similar situation exists as to the assertion that appellant was not entitled to rely upon the representations of Brownson, if actually made, and that appellant was guilty of inexcusable negligence in failing to ascertain the extent and value of the community property prior to the time she agreed to a settlement relating thereto. We agree with appellees that it is necessary that one seeking to set aside a judgment by bill of review must not be guilty of fault or negligence which resulted in the rendition of the judgment attacked. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996; Smith v. Ferrell, Tex.Com.App., 44 S.W.2d 962; Burguieres v. Farrell, Tex.Civ.App., 85 S.W.2d 952, writ dismissed, 126 Tex. 209, 87 S.W.2d 463, but the husband is by law the manager of the community estate, and a trust relationship exists between him and the wife. His representations as to the nature and extent of the community estate, if false, are treated as a species of extrinsic fraud, justifying the modification of the property settlement upon the theory of an implied trust, in accordance with applicable equitable principles. Wright v. Wright, 7 Tex. 526; Juehn v. Kuehn, Tex.Civ.App., 232 S.W. 918. This statement presupposes that upon the trial of the original cause there were no actual disputed issues tried as to the extent and nature of the community estate, such as whether or not a particular tract of land was community or separate property. If such issues be raised, fraudulent representations relating thereto would be classified as intrinsic rather than extrinsic, as the party having joined issue thereon would be expected to disclose the falsity of the representation upon the original trial. O'Meara v. O'Meara, Tex.Civ.App., 181 S.W.2d 891. Authoritative cases setting forth the rules relating to the setting aside of property settlements induced by fraud are: McMurray v. McMurray, 67 Tex. 665, 4 S.W. 357; Eldridge v. Eldridge, Tex.Civ.App., 259 S.W. 209; Swearingen v. Swearingen, Tex.Civ.App., 193 S.W. 442; Moor v. Moor, Tex.Civ.App., 57 S.W. 992; Ralls v. Ralls, Tex.Civ.App., 256 S.W. 688; Celli v. Sanderson, Tex.Civ.App., 207 S.W. 179.

The record before us at the present time, i. e., the pleadings, appellant's affidavit, her deposition and the deposition of her former attorney, do not...