Mowbray v. Avery

Citation76 S.W.3d 663
Decision Date11 April 2002
Docket NumberNo. 13-00-124-CV.,13-00-124-CV.
PartiesFredda Sue MOWBRAY, Appellant, v. Kristin AVERY (Formerly Known as Kristin Mowbray) and Virginia Hale, Appellees.
CourtCourt of Appeals of Texas

D. Patrick Long, Judith Bagley, Patton Boggs, Dallas, for Appellant.

Craig H. Vittitoe, Roger W. Hughes, Adams & Graham, Harlingen, for Appellees.

Before Justices HINOJOSA, CASTILLO, and AMIDEI1.

OPINION

Opinion by Justice CASTILLO.

Appellant Fredda Sue Mowbray appeals the judgment of the trial court, dismissing her petition for the imposition of a constructive trust and for a bill of review of a summary judgment in a prior suit entered over six years earlier. In the prior proceeding, the trial court had granted a summary judgment finding, after her criminal conviction for killing her husband, William "Bill" Mowbray, that appellant was not entitled to the proceeds insuring Bill Mowbray's life. Appellant filed a petition for a bill of review of that decision after she was acquitted in a subsequent criminal trial after a writ of habeas corpus was granted that reversed her original conviction and ordered a new trial. Appellant asks us to review whether the trial court erred in: (1) sustaining special exceptions to her second amended petition for bill of review; (2) considering appellees' late supplement to the motion for summary judgment; (3) considering appellee's motion for summary judgment which was not supported by conclusive competent summary judgment evidence; (4) granting summary judgment on the ground of limitations; (5) granting summary judgment on the ground that there was no extrinsic fraud that prevented her from presenting a defense; and (6) granting summary judgment on the ground that she failed to exercise due diligence in filing a petition for bill of review. We affirm the judgment of the trial court.

THE PARTIES

Forty-three years old at the time of his death, Jay William Mowbray, Jr. ("Bill Mowbray") died of a gunshot wound to the right temple on September 16, 1987. Fredda Sue Mowbray, his second wife, was charged with, convicted of, and, after retrial, acquitted of murder. Kristin Mowbray Avery ("Avery") is the daughter of the deceased. Virginia Hale is the ex-wife of the deceased and mother of Kristin Avery.2 Jeanne N. Mowbray is the mother of the deceased.

PROCEDURAL HISTORY
I. THE CRIMINAL CASE

On June 9, 1988, Fredda Sue Mowbray was convicted by a jury of the murder of Bill Mowbray in cause number 87-CR-1135-A in the 107th District Court of Cameron County, Texas. Mowbray v. State, 788 S.W.2d 658 (Tex.App.-Corpus Christi 1990, pet. ref'd.). On December 18, 1996, the court of criminal appeals granted her petition for writ of habeas corpus, finding that the record supported the trial court's findings that the State knew about, but failed to disclose, the blood splatter expert's report which supported the defense's theory and that such favorable evidence would have resulted in an acquittal vacated the murder conviction, and ordered a new trial. Ex Parte Mowbray, 943 S.W.2d 461, 466 (Tex.Crim.App.1996). After a new trial in 1997, Mowbray was acquitted of the murder of her husband.

II. THE INSURANCE POLICIES

Central to the underlying dispute between the parties are life insurance proceeds which total $1,755,000 involving the following policies in effect at the time of Bill Mowbray's death.3

A. The Pilot Life Policy and the Transamerica Life Policy

Pursuant to an agreement incident to the divorce of Bill Mowbray and Hale, proceeds from Pilot Life Insurance Policy number 824540 (or its substitute) in the amount of $130,000.00 were payable to Virginia Hale with Avery as the "third party beneficiary."4 Before the decree was entered, on November 14, 1974, Bill Mowbray acquired Transamerica Life Insurance Policy number 5381535 in the amount of $130,000.00, which named Virginia Mowbray as the beneficiary of the policy. On or about July 30, 1986, Bill Mowbray attempted to change the beneficiary on the Transamerica Life Insurance Policy to Fredda Sue Mowbray.

B. The West Coast Life Policy

On November 18, 1982, Bill Mowbray purchased West Coast Life Policy number 654276 in the face amount of one million dollars. In the beneficiary provision, he listed the Small Business Administration ("SBA") and the Brownsville National Bank of Commerce to the extent of "loan balances." He added Avery, identifying an amount of "$130,000.00" and Fredda Sue Mowbray "to receive the remaining balance of the policy proceeds." Later, Avery was listed as the first and primary beneficiary. Avery's subsequent lawsuit alleged that Bill Mowbray attempted to change the beneficiary of this policy to Fredda Sue Mowbray, subject to the interests of the SBA, a lender. The lawsuit alleged that Fredda Sue "never signed nor authorized her husband to sign her name to the change of beneficiary form;" rather, Bill Mowbray "forged her signature on the said change of beneficiary form, and she was not told of his actions and had no knowledge whatsoever of any such attempt to change the beneficiary."5 Part of the proceeds of the policy were paid to the SBA and Mbank-Brownsville with the balance of the proceeds unpaid.

C. The Transamerica Policy No. 5878392

Jeanne Mowbray received the $50,000.00 proceeds of this policy.

D. The Gulf Atlantic Policy

The proceeds of policy number 195651 in the amount of $25,000.00 and number 196538 in the amount of $250,000.00 were paid to the SBA or to Mbank-Brownsville.

III. THE FIRST LAWSUIT: KRISTIN AVERY ET AL V. FREDDA SUE MOWBRAY ET AL
A. History

In 1987, appellees Kristin Avery and Virginia Hale, individually and as trustee, filed a lawsuit in the 107th District Court of Cameron County against appellant Fredda Sue Mowbray. The other defendants in the lawsuit were Transamerica Occidental Life Insurance Company, Gulf Atlantic Life Insurance Company, West Coast Life Insurance Company, R. Scott Mowbray, administrator with the will annexed under the estate of J. William Mowbray, Jr.,6 and Jeanne E. Mowbray "as an involuntary plaintiff."7 At the time the lawsuit was filed, Avery was the seventeen-year-old survivor of Bill Mowbray.8

The lawsuit, filed under cause number 11-97-5123-A, alleged that appellant had fatally shot her husband, Bill Mowbray, and argued that she should not receive the proceeds of his life insurance policies which designated her the beneficiary. The lawsuit was transferred to the 197th District Court in Cameron County, assigned the cause number 91-05-2140-C, and was ordered continued until after the disposition of Fredda Mowbray's criminal case. Appellant was convicted of the murder of Bill Mowbray. On May 7, 1991, the trial court entered a final summary judgment against appellant, ordering that the life insurance proceeds be paid to appellees. Appellee Avery did not receive all the insurance proceeds; rather, the money was put in the registry of the court and at various times amounts have been released by agreement of the parties.

B. Allegations

In the lawsuit, Avery and Hale alleged that the insurance companies were withholding the remaining insurance proceeds because of "controversy concerning the cause of death." As to the Transamerica policy, Avery and Hale alleged that Avery had a vested equitable interest by virtue of the separation agreement and divorce decree. As to the West Coast policy, they alleged that because Bill Mowbray had forged Fredda Sue Mowbray's signature on the change of beneficiary form Avery remained entitled to $130,000.00 "perforce of the prior (effective) beneficiary designation, regardless of the circumstances under which Bill Mowbray died." They further alleged that Fredda Sue Mowbray forfeited all interest in the proceeds under all policies by "willfully bringing about the death of the insured." Because Fredda Sue Mowbray was convicted of murder, Avery and Hale alleged that "this Court should take judicial notice and she is barred and collaterally estopped from claiming that his death was the result of anything other than intentional homicide."

Avery sought five million dollars in damages from Fredda Sue Mowbray for the wrongful and untimely death of her father and exemplary damages in the same amount. From the administrator, Avery sought a constructive trust to hold all assets of the estate. The lawsuit requested that the trial court "declare the rights, status and legal relationship between the parties with respect to the insurance policies and estate ... in such a manner as will terminate the controversy." The lawsuit also sought attorney's fees.

C. The Summary Judgment

On March 27, 1991, Avery and Hale filed a document containing four different motions: a motion for partial summary judgment; a motion for reasonable expenses; a motion for costs and attorney's fees; and a motion to sever.9 The motion for partial summary judgment sought judgment as a matter of law upon three grounds. The first ground sought judgment as a matter of law on the first, third and seventh count of the second amended petition10 because appellant had forfeited her rights under insurance code article 21.23.11 The second ground claimed contractual rights of plaintiff, Virginia Hale, to the proceeds of Transamerica policy number 5381525 (the subject of count 1 of the petition) based on the agreement incident to her divorce from Bill Mowbray. The final ground of the summary judgment noted that the $130,000 of the proceeds of the West Coast Life Insurance Company policy number 654276 were already awarded to plaintiffs in the second motion for summary judgment in the same case but asked the court to formally enter judgment of the same as no interlocutory judgment had yet been entered. In the prayer to the summary judgment motion, appellees asked the court to: 1) find that, because Fredda Sue Mowbray had been shown to have murdered her husband, she had forfeited her interests as beneficiary; 2) name Kristen V. Mowbray as the next of kin of the insured; and 3) order...

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