In re Estate of Abraham

• Citation: 583 S.W.3d 890
• Decision Date: 21 August 2019
• Docket Number: No. 08-18-00089-CV,08-18-00089-CV
• Parties: In the MATTER OF the ESTATE OF Joseph ABRAHAM, Jr. a/k/a Joseph (Sib) Abraham, Jr.
• Court: Court of Appeals of Texas

583 S.W.3d 890

In the MATTER OF the ESTATE OF Joseph ABRAHAM, Jr. a/k/a Joseph (Sib) Abraham, Jr.

No. 08-18-00089-CV

Court of Appeals of Texas, El Paso.

August 21, 2019

ATTORNEY FOR APPELLANT: Joseph D. Vasquez, 310 N. Mesa St., Ste. 710, El Paso, TX 79901.

ATTORNEY FOR APPELLEE: Hugo Madrid, Pierce & Madrid, P.C., 221 N. Kansas, Suite 1301, El Paso, TX 79901.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

The driving force for the disputants here is whether a piece of property passed from father to son before the father's death, or whether it is part of the deceased father's estate, subject to the provisions of a will and the claims of creditors. The deciding issue, however, is whether Appellant, William Abraham, has presented a sufficient record and arguments to convince us that the probate court erred in granting summary judgment invalidating a deed that purportedly transferred the property. He has not, and we affirm the judgment below.

FACTUAL BACKGROUND

Joseph (Sib) Abraham, Jr., a noted El Paso trial lawyer, passed away on July 4, 2014. His will appointed his wife, Margaret, as Independent Executrix. She declined that role, however, and the probate court appointed a granddaughter, Asia Zaragoza as the Dependent Administrator of the estate. Later, Ms. Zaragoza stepped down, and the court appointed Albert Bloxom as the Successor Dependent Administrator. He is our Appellee here, and we refer to him as the Administrator. In addition to his wife, Sib Abraham was also survived a son, William D. Abraham, and several grandchildren. The will lists Margaret as the sole beneficiary, with Sib's grandchildren as alternate beneficiaries. William Abraham is not a beneficiary under the will.

This case arises out of a particular estate asset. According to an assumption deed dated June 1, 1982, Sib Abraham acquired a parcel of land located at 415 E. 7th Street, in downtown Austin. The deed showed only Sib as the buyer. Sib acquired that property, however, while he was married to Margaret, and jointly filed income tax returns, as well as an inventory filed by Ms. Zaragoza in her role as the dependent administrator, treated the Austin land as community property; no party has contested that claim. In 2011, Sib pledged the property as security for $497,000 promissory note payable to GEM Real Estate Investments. That entity filed a claim in the probate proceeding for the outstanding balance on the note. Other creditors filed numerous claims against the estate based on various secured and secured notes.

On November 7, 2014 (four months after Sib's death), William Abraham caused to be recorded an assumption warranty deed in Travis County that purported to transfer the 7th Street property from Sib to William. The deed reflected that Sib signed the instrument on January 7, 2013, some six months before his death. His signature was notarized by Texas notary, Jackie Brackett. That is where this story takes its first turn--Brackett later executed an affidavit stating in relevant part that she actually notarized deed after Sib's death:

• Approximately three to four months after the death of Joseph ‘SIB’ Abraham, Jr., William ‘Billy’ Abraham called me at home and asked me to meet him.... At that time, Billy indicated that he finally found the deed to the Austin property and that he needed me to notarize it for him.

• The deed he presented was entitled Assumption Warranty Deed, ... [and] already had what appeared to be the signature of Joseph ‘SIB’ Abraham, Jr. on the second page. The signature was dated January 7, 2013.

• At that time, I realized that my notary stamp was too new for the date on the Assumption Warranty Deed. Billy asked me to retrieve my old notary stamp from my house.

• I then notarized the Assumption Warranty Deed. Once I finished notarizing the Assumption Warranty Deed, Billy indicated that he was going to Austin to personally file it as soon as possible.

• Since his incarceration, Billy has sent me other documents, including deeds, for me to notarize. I did not feel comfortable notarizing those documents and gave them back to Charlene Enriquez, who is helping Billy while he is in jail.

William Abraham later filed a lis pendens claiming to be the true owner of the property. He filed an original petition in the probate proceeding seeking to vindicate his claim to the Austin property. That petition alleges that he bought the property around 1985 from Sib through a series of transaction. The Administrator answered and counterclaimed, seeking a declaration voiding the January 7, 2013 deed.

The Administrator later moved for summary judgment, asserting two principal arguments. First, the Administrator claimed the deed was not properly notarized, and under several provisions of the property code, it cannot be considered a valid deed. Second, the Administrator argued that the property was community property. Because the January 7, 2013 deed did not contain the wife Margaret Abraham's signature, any purported conveyance under the deed was ineffective.

William apparently responded with his own cross-motion for summary judgment, and several summary judgment proofs germane to this appeal.¹ Our record suggests that he included as a part of his response a second assumption deed signed by his mother, Margaret. On October 19, 2016--more than two years after Sib passed away--Margaret executed an assumption deed that transferred her community interest in the Austin property to William Abraham. The deed states it is effective on January 7, 2013, the same date the deed purportedly signed by her husband, Sib.

The Administrator had filed his own petition within the probate attacking Margaret's assumption deed. He joined her as party and contended that the October 19, 2016 deed was void because she had failed to comply with Texas Estates Code Section 360.253. That provision allows for the partition of community property subject to administration by an estate representative, but requires court approval, and the posting of a bond to protect the interest of creditors. TEX.EST.CODE ANN. § 360.253(b). The probate court granted the Administrator's motion for summary judgment on that claim and declared Margaret's October 19, 2016 deed void. We have subsequently affirmed that ruling in a related appeal. In re Estate of Joseph Abraham, Jr. , No. 08-18-00032-CV, 583 S.W.3d 374, 2019 WL 3940964 (Tex. App.--El Paso, Aug. 21, 2019). The Administrator carried that same argument forward in his summary judgment motion and argument against William.

With regard to the Administrator's motion for summary judgment as against William (and his cross-motion for summary judgment), the probate court first sustained several objections to various affidavits and proofs filed by William. The court then granted the Administrator's motion for summary judgment and denied William's motion. The probate court declared the deed dated January 7, 2013 "void, invalid, and of no legal effect[.]" This appeal follows.

DISCUSSION

William raises two issues on appeal. His first issue claims that the trial court erred in striking several affidavits that he had apparently included as a part of his response to the Administrator's motion for summary judgment. His first issue then generally claims the trial court erred in granting summary judgment "in the face of conflicting facts." In his second issue, he argues that the January 7, 2013 deed is valid as between Sib and William in the absence of any evidence of forgery. Rather, any impropriety in the notarization would only void the deed as to a bona fide purchaser without notice of the defect. Both issues arise in the context of a granted summary judgment, so we start with our standard of review.

Standard of Review

We review a trial court's decision to grant summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010). Under a traditional motion for summary judgment motion, the moving party carries the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c) ; Helix Energy Sols. Group, Inc. v. Gold , 522 S.W.3d 427, 431 (Tex. 2017). Stated otherwise, the movant must conclusively establish as a matter of law all the elements of their claim. Frost Nat'l Bank v. Fernandez , 315 S.W.3d 494, 508 (Tex. 2010). Evidence is conclusive if reasonable people could not differ in the conclusions drawn from it. Gold , 522 S.W.3d at 431. Once the movant establishes its right to summary judgment, the burden then shifts to the non-movant to present evidence which raises a genuine issue of material fact. See City of Houston v. Clear Creek Basin Authority , 589 S.W.2d 671, 678 (Tex. 1979).

Evidence favorable to the non-movant will be taken as true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic Hospital, Inc. v. Reese , 148 S.W.3d 94, 99 (Tex. 2004) ; Tranter v. Duemling , 129 S.W.3d 257, 260 (Tex.App.--El Paso 2004, no pet.).

Application

The Affidavits and the Deadman's Rule (Issue One)

William's first issue claims the trial court erred in sustaining the Administrator's objections to several affidavits that he apparently attached to his summary judgment response. The argument at the summary judgment hearing, as disclosed by the reporter' record, suggest that these affidavits included statements made by Sib to several of his friends and associates that to varying degrees supported the inference that he intended for the Austin property to go to William. The Administrator lodged specific objections to each affidavit and specific assertions made within those affidavits, including hearsay, assertion of legal conclusions, speculation, lack of foundation, failure to attach referenced documents, unreliability, and statement of conclusory opinions. The affidavits are not included in the appellate record, nor is William's response to the summary judgment motion.²

To obtain a reversal...