Garner v. Long

• Decision Date: 17 April 2003
• Docket Number: No. 2-02-188-CV.,2-02-188-CV.
• Citation: 106 S.W.3d 260
• Parties: Teddy Wayne GARNER, Individually and as Independent Executor of The Estate of Edna Faye Long, Deceased, Appellant, v. Henry T. LONG, Jr., Independent Executor of the Estate of Henry T. Long, Sr., Deceased, Appellee.
• Court: Texas Court of Appeals

106 S.W.3d 260

Teddy Wayne GARNER, Individually and as Independent Executor of The Estate of Edna Faye Long, Deceased, Appellant, v. Henry T. LONG, Jr., Independent Executor of the Estate of Henry T. Long, Sr., Deceased, Appellee.

No. 2-02-188-CV.

Court of Appeals of Texas, Fort Worth.

April 17, 2003.

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Bakutis, McCully & Sawyer, P.C., Davis C. Bakutis, Fort Worth, for Appellant.

Bradley & Cain, L.L.C., Keith Bradley, Cleburne, for Appellee.

PANEL A: DAY, LIVINGSTON and DAUPHINOT, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

This is an appeal from a summary judgment granted to appellee, Henry T. Long, Jr. (Henry), as independent executor of Henry T. Long, Sr.'s estate. Appellant Teddy Wayne Garner (Teddy), independent executor of Edna Faye Long's estate, contends that the trial court improperly granted summary judgment because (1) the motion is legally insufficient; (2) the evidence in support of the motion is legally insufficient; (3) fact issues precluded the granting of the motion; and (4) the order granting the motion was barred by res judicata. We modify the trial court's judgment, affirm it as modified, and remand for recalculation of prejudgment interest according to the modified award.

I. Factual Background

Edna Faye Long (Wife) and Henry T. Long, Sr. (Husband) married on October 7, 1982. Both had children from previous marriages and none from their union. Wife died in July 1998. The probate court admitted her will to probate, naming Teddy as the independent executor. Teddy then filed an inventory, appraisement, and list of claims with the probate court, which showed $300,000 of real property, consisting of the couple's home and a condominium as her separate property; $374,974.34 of her personal property consisting of furniture and fixtures, a Bank of America certificate of deposit totaling $62,974.34, a Bank of America certificate of deposit totaling $100,000, a Bank of America checking account totaling $100,000, and a NationsBank certificate of deposit totaling $100,000 (the four accounts) as her separate property; and 58,376.67 in cash and a vehicle as her personal community property. Her will gave Husband the right to use the home, the automobile, and 830,000 in cash. The probate court never approved Wife's inventory.

In January 1999, Henry, the son from Husband's previous marriage, acting through a power of attorney, filed an adversary proceeding against Wife's estate to have her will construed and to have the character of the home determined with a declaration of homestead rights for Husband. Husband died in May 1999, and Henry was appointed independent executor of his estate. Henry filed an inventory, appraisement, and list of claims in Husband's estate, and the court approved it on November 18, 1999. Husband's inventory claimed $375,118.61 cash in community property bank accounts. Four of these bank accounts were the same ones listed on Wife's inventory as her separate property.

On November 18, 1999, Henry filed his "First Supplemental Petition" in the adversary proceeding, requesting that the court issue a declaratory judgment that Wife's will did not put Husband to an election and that Husband's estate was entitled to retain his half of the community property. On December 14, 2000, after the parties submitted stipulated facts to the trial court, the trial court determined that (1) the home was community property (2) Wife's will granted Husband a life estate in the home as well as specific bequests of $30,000 in cash and automobile; and (3) Wife's will did not put Husband to an election; and (4) the order covered "any other matters presently pending." This court affirmed the trial court's ruling in July 2001, and the Texas Supreme Court has denied review. Garner v. Long, 49 S.W.3d 920 (Tex.App.-Fort Worth 2001, pet. denied).

On November 16, 2001, Henry filed a motion for summary judgment requesting that the trial court award him half of the sale proceeds of the home and interest accrued thereon, $30,000 in cash, and half of the $366,351.01 that was reported as Husband's and Wife's community property in Husband's November 18, 1999 order approving his inventory. These assets were not divided or addressed by the trial court's earlier December 2000 ruling. The trial court granted Henry's motion for summary judgment.

II. Analysis

In one issue, Teddy challenges the trial court's granting of the motion for summary judgment in Henry's favor. He attacks the order on four bases: that the motion itself was legally insufficient; that the evidence in support of the motion was legally insufficient; that fact issues were raised that should have precluded the grant of the motion for summary judgment; and that Henry's motion was barred by res judicata. We will address each in turn.

A. Res Judicata

Teddy argues that res judicata bars Henry's right to pursue a claim for the community one-half of the four accounts totaling $362,974.34 because the December 14, 2000 order states that it considered "any other matters presently pending" and that "[a]ll further relief sought in this proceeding which is not granted is hereby denied." He claims that the supplemental petition pending before the court clearly shows that the issue of characterization of the four accounts was pending before the court, thus the trial court considered it. Henry responds that any res judicata argument is waived.

Texas Rule of Civil Procedure 94 states that in pleading to a preceding pleading, a party shall set forth affirmatively the defense of res judicata. TEX.R. CIV. P. 94. If a party fails to affirmatively assert the defense of res judicata, then any such claim is waived. Dawson-Austin v. Austin, 920 S.W.2d 776, 787 (Tex.App.-Dallas 1996), reed on other grounds, 968 S.W.2d 319 (Tex.1998), cert. denied, 525 U.S. 1067, 119 S.Ct. 795, 142 L.Ed.2d 657 (1999); Green v. Doakes, 593 S.W.2d 762, 764 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ).

Here, Teddy failed to raise res judicata as to the four accounts in his Fourth Amended Answer.¹ He cannot now attempt to raise the defense as it relates to the December 14, 2000 order previously appealed. Therefore, Teddy has waived his res judicata claim.

Furthermore, res judicata precludes relitigation of claims that have been finally adjudicated or that arise out of the same subject matter and that could have been litigated in the prior action. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992). It requires proof of the following elements: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims that were raised or could have been raised in the first action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.1996). The December 14, 2000 order was a final judgment on issues of the status of homestead property and election under Wife's will. The community property character of the four accounts was not an issue before the court. Thus, it cannot be a "second action based on the same claim."

B. Legal Sufficiency of Motion²

Teddy contends that Henry's motion for summary judgment is legally insufficient because it does not contain specific grounds for summary judgment. Henry responds that the motion clearly states the grounds upon which he sought summary judgment.

The Texas Supreme Court, in interpreting Texas Rule of Civil Procedure 166a, has held that grounds for summary judgment must be expressly presented in the summary judgment motion itself McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex.1993). Teddy argues that the motion does not state any basis for the contention that the four accounts are the Longs' community property. However, the motion specifically references the November 18, 1999 trial court order, which approved the inventory and appraisement in Husband's estate. Although the filed inventory of Husband's estate is not conclusive evidence of the character of the property listed, it is prima facie evidence of its character, which was not rebutted by Teddy. See Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48, 50 (1962); see also Robles v. Robles, 965 S.W.2d 605, 620-21 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (op. on reh'g) (stating that inventory is not conclusive evidence of property's character). Henry sufficiently identified the property that was subject to the motion and identified his reliance on the order approving Husband's inventory and appraisement. See TEX.R. CIV. P. 166a. He also attached both the inventory and the order approving it as exhibits to his motion for summary judgment. Although Henry did not specifically list all four accounts, there is no requirement for such specificity under the rule, and his motion does clearly state the grounds upon which he sought summary judgment. See id.

Henry also attached an affidavit by Gary Estes, a certified public accountant, to his motion for summary judgment. That affidavit, and the exhibits attached to it, further established the character of Husband's property. Teddy challenges the affidavit of Gary Estes, contending it was not incorporated by reference in the motion for summary judgment. However, Teddy failed to specifically present this issue in his response to the motion for summary judgment. See McConnell, 858 S.W.2d at 341 (holding that unless the issue is specifically presented in the response, courts cannot look to the nonmovant's brief or evidence to determine whether that issue precludes summary judgment). Thus, he has failed to preserve this issue for review.

After considering Teddy's arguments, we hold that Henry's motion for summary judgment is not defective.

C. Legal Sufficiency of Evidence Supporting the Motion

Teddy also argues that the evidence supporting the motion for summary judgment is legally insufficient. Specifically, he contends that the two inventories and the order...