Majeski v. Estate of Majeski

• Decision Date: 28 April 2005
• Docket Number: No. 03-03-00565-CV.,03-03-00565-CV.
• Citation: 163 S.W.3d 102
• Parties: Bernard MAJESKI, Appellant, v. ESTATE OF Sarah Bishop MAJESKI, Deceased, Appellee.
• Court: Texas Supreme Court

163 S.W.3d 102

Bernard MAJESKI, Appellant, v. ESTATE OF Sarah Bishop MAJESKI, Deceased, Appellee.

No. 03-03-00565-CV.

Court of Appeals of Texas, Austin.

February 3, 2005.

Rehearing Overruled April 28, 2005.

COPYRIGHT MATERIAL OMITTED

William M. Gatewood, Jr., San Antonio, for Appellant.

Frank B. Suhr, Jr., New Braunfels, for Appellee.

Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.

OPINION

DAVID PURYEAR, Justice.

Geraldine Wesch is the daughter of the decedent, Sarah Bishop Majeski ("Bishop"), and appellant Bernard Majeski was Bishop's husband for more than twenty years. After Bishop's death, a dispute arose between Wesch, as administrator of Bishop's estate, and Majeski. Both sought control of a tract of land owned by Bishop before her marriage and on which she and Majeski lived and worked. Majeski claimed a homestead right as Bishop's surviving spouse, see Tex. Const. art. XVI, § 52, and Wesch argued that the rental of portions of the property defeated Majeski's homestead rights. The trial court granted summary judgment in favor of Wesch, and Majeski appeals. We reverse the judgment and remand the cause to the trial court for further proceedings.

Before marrying Majeski, Bishop acquired as her separate property a 5.851-acre tract of land in Schertz, Texas. Bishop operated a bar and pool hall, called the Bishop Center, on the property, and lived in the same building. After she married Majeski, they lived in and operated the Bishop Center together. A parking lot lies in front of the Bishop Center, and behind it is a yard and a fence that separates the rest of the property. On the property behind the fence are several mobile homes and rental homes, some of which are uninhabitable, several mobile home lots, junk cars, pieces of equipment, a service station, and a billboard. Both before and during the marriage, several of the structures behind the fence were rented to third parties.

Bishop died intestate in February 2000, survived by Majeski, Wesch, and two other adult children from a previous marriage. Wesch was appointed independent administrator of Bishop's estate and filed an inventory of the estate, listing the 5.851 acres as Bishop's separate property and stating that there were no outstanding claims against the estate. When Wesch informed Majeski that she would begin collecting payments from the rental properties, Majeski sought a temporary restraining order seeking to have Wesch barred from interfering with Majeski's use of the property and from exercising authority or management over the property. Majeski also sought a judgment declaring the 5.851 acres, including any improvements, rental properties, and businesses, to be Majeski's homestead, claiming a life estate in the property as Bishop's surviving spouse. The trial court granted a temporary restraining order but later, faced with competing motions for summary judgment filed by Majeski and Wesch, granted summary judgment in Wesch's favor finding that Majeski's homestead consisted only of the Bishop Center, the fenced yard behind the building, and the parking lot. The remainder of the property behind the fence was found not to be his homestead because it was not used for homestead purposes or to exercise a business or calling.

Majeski appeals, arguing that he is entitled to claim the entire tract as his homestead and that Wesch's motion did not assert specific grounds for summary judgment. Wesch asserts that the order from which Majeski appeals is interlocutory. We hold that the order was final and appealable and agree that Majeski established that the Bishop Center and its surrounding parking lot and yard were his homestead. We hold that there is a question of fact as to the homestead status of the remaining property behind the fence, reverse the trial court's granting of summary judgment in Wesch's favor on that issue, and remand the cause to the trial court for further proceedings.

Is the Trial Court's Order Final and Appealable?

Wesch filed her administrator's inventory in the trial court as part of the probate of Bishop's estate. After Wesch contacted Majeski to state she would be taking control of the property beyond the fence, Majeski sought a declaration that the entire property was his homestead. Wesch countered, asking the court to determine what portion of the property was Majeski's homestead. She also asked the court to declare "the value and character of all items of personal property" and what assets should be given to Majeski as Bishop's surviving spouse and to deduct from Majeski's share of the estate "the value of all assets not accounted for which [were] in his possession." Both sides moved for summary judgment on the issue of the homestead status of the property. Wesch asserts that the trial court's order was not a final order because the court did not address her counter-petition requests related to the other assets held by Majeski. We disagree.

We may only consider appeals from final and appealable orders or from interlocutory orders over which we are given statutory jurisdiction. See Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998). The probate code grants appellate courts jurisdiction over "[a]ll final orders of any court exercising original probate jurisdiction." Tex. Prob.Code Ann. § 5(g) (West Supp.2004-05). This has been interpreted to mean that we may consider an appeal from an order that, while not a final disposition of a probate matter consisting of a continuing series of events, "adjudicate[s] conclusively a controverted question or substantial right." Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex.App.Austin 2000, pet. denied). If no express statute declares a phase of a probate proceeding to be final and appealable, we must consider whether the order is part of a proceeding that left unresolved issues or whether the order "concluded a discrete phase" of the proceedings. Id. at 688-89.

Once an administrator of an estate files an inventory and list of approved claims, a surviving spouse must seek to have "exempt property" excluded and set aside for the spouse's use. Tex. Prob.Code Ann. § 271 (West 2003). The only dispute at issue at this stage of the probate proceeding was the homestead status of the property. Although Wesch asserted claims related to other assets, those questions were separate from the homestead issue. The trial court's order made a final resolution of the homestead issue as to the entire tract of land. Therefore, we hold that the order "concluded a discrete phase" of the proceedings and is final and appealable. See Logan, 21 S.W.3d at 689. We overrule Wesch's motion to dismiss the appeal for lack of jurisdiction.

Homestead Status of the Property

Standard of Review

Majeski moved for a "traditional" summary judgment under rule 166a of the rules of civil procedure, asserting that the evidence established that he was entitled to judgment as a matter of law that the entire 5.851 acres should be considered his homestead. See Tex.R. Civ. P. 166a(c). Wesch countered with a motion for summary judgment asserting that the evidence established as a matter of law that Majeski cannot claim the entire tract as his homestead and a "no-evidence" motion, asserting that there was no evidence to prove Majeski's case. See Tex.R. Civ. P. 166a(i).

A "traditional" motion for summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex.App.-Austin 2000, no pet.). A defendant seeking summary judgment must negate as a matter of law at least one element of each of the plaintiff's theories of recovery or plead and prove as a matter of law each element of an affirmative defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

A party seeking a "no-evidence" summary judgment, on the other hand, does not bear the burden of establishing her right to judgment by proving a defense or claim, but instead asserts that there is no evidence of one or more essential elements of a claim on which the opposing party will have the burden of proof at trial. Tex.R. Civ. P. 166a(i); Holmstrom, 26 S.W.3d at 530. If the nonmovant produces more than a scintilla of probative evidence raising a genuine issue of material fact as to an essential element on which he has the burden of proof, a no-evidence summary judgment is improper. Tex.R. Civ. P. 166a(i); Holmstrom, 26 S.W.3d at 530.

In reviewing the granting of a summary judgment, we take as true evidence favorable to the nonmovant, making every reasonable inference and resolving all doubts in the nonmovant's favor. Centeq Realty, 899 S.W.2d at 197. If both parties move for summary judgment, we determine all questions presented and render the judgment the trial court should have rendered. Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997). An interested party's testimony, whether live or through an affidavit¹, may only be used as summary judgment evidence if it is uncontroverted, clear, positive, direct, credible, free from contradiction, and susceptible to being controverted. Tex.R. Civ. P. 166a(c); Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.1997). Summary judgment is improper if based on testimony by an interested witness that does not meet all of the above requirements. See Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989).

The Texas Constitution provides special protections for homestead property beyond the protections given to other types of property. See Tex. Const. art. XVI, § 50. A homestead is a constitutionally created legal interest that protects a property from all but a few specifically enumerated kinds of liens that may be imposed against a homestead. Heggen v. Pemelton, 836 S.W.2d 145, 148 (Tex.1992). Courts must liberally construe constitutional and statutory homestead provisions to...