Raney v. Mack

• Decision Date: 11 December 1973
• Docket Number: No. 8205,8205
• Parties: Joan Mack RANEY, Appellant, v. Sam MACK, Appellee.
• Court: Texas Court of Appeals

Page 527

504 S.W.2d 527

Joan Mack RANEY, Appellant, v. Sam MACK, Appellee.

No. 8205.

Court of Civil Appeals of Texas, Texarkana.

Dec. 11, 1973.

Rehearing Denied Jan. 15, 1974.

Jerry C. Adam, Adam, Adam & Hancock, Walter H. Horne, Houston, for appellant.

Earl Sharp, Sharp, Ward & Ross, Longview, for appellee.

RAY, Justice.

This is a summary judgment case. Appellant (plaintiff) Joan Mack Raney filed in the Court of Domestic Relations for Gregg County a suit in the nature of a bill of review, seeking to have that court set aside its previous divorce decree entered on August 2, 1968, in Cause No. 68--68--DR. The substance of the bill of review was to set aside any judgment the court may have rendered in connection with the division of the community property, alleging that appellee (defendant) Dr. Sam Mack had fraudulently concealed the true nature and extent of the community estate. There were other persons named as parties defendant in whose favor summary judgments have been granted and who were severed out of the main suit. The court entered a summary judgment in favor of Otto A. Ritter, appellant's former attorney, but failed to sever that action from the principal suit. Appellee Mack filed his motion for summary judgment and it was granted.

Appellant Raney submits two points of error for our consideration. It is contended by appellant that the evidence raises a fact issue of whether or not appellee Sam Mack through fraudulent concealment and misrepresentation, prevented appellant from discovering and realizing the true nature and extent of the community estate in the prior divorce proceeding; and, secondly that the evidence raises the fact issue that through no negligence nor fault of her own and after exercising reasonable diligence appellant was prevented from asserting her rightful claim to the community estate by the concealment and misrepresentations of appellee Sam Mack.

We have considered the motion of Otto Ritter to dismiss the appeal as it relates to him, and find that the motion should be granted for the reason that appellant Raney has not properly perfected her appeal from the summary judgment rendered in favor of Ritter. Appellant failed to comply with Rules 414 and 415, Texas Rules of Civil Procedure, as such rules apply to appellee Ritter, in that appellant's brief was not timely filed and no notice of a request for late filing was shown to have been mailed to Ritter. Since appellant has failed to show that appellee Ritter suffered no material injury by the late filing of appellant's brief, the appeal as it relates to appellee Ritter will be dismissed for want of prosecution. Tex.R.Civ.P. 414 and 415. Further, appellant brings forward no points of error related to Ritter. Her two points of error relate only to the actions of Dr. Sam Mack. For this additional reason, appellant's appeal was not perfected in any matter relative to Ritter. Appellant having presented no point of error to this court complaining of the trial court's action in granting a summary judgment in favor of Ritter, the error of the trial court, if any, has been waived. Rule 418, Tex.R.Civ.P.; Bickler v. Bickler, 403 S.W.2d 354, 361 (Tex.Sup.1966).

An examination of the record reveals that Dr. Sam Mack filed his motion for summary judgment on March 2, 1973, along with his affidavit and that of Earl Sharp, Henry M. Bown and George Joseph in support of the motion for summary judgment. The affidavits of Otto A. Ritter, Dr. Edward Mack and Esther Mack Knox were also before the court, along with the depositions of Dr. Sam Mack and Joan Mack Raney. The affidavits of James R. Lee, Jack N. Price and Joan Mack Raney filed in opposition to the motion for summary judgment were struck by the trial court, apparently because the affidavits were not in proper form. Appellant Raney has not submitted a point of error to this court complaining of the action of the trial court in striking the controverting affidavits and has therefore waived the assignment of error she presented in her motion for new trial.

In moving for summary judgment, appellee Mack assumed the burden of establishing there was no genuine issue as to any material fact and that he was entitled to a judgment as a matter of law. Nichols v. Smith, 17 Sup.Ct.Journal 57 (Tex.Sup.Ct. Nov. 3, 1973) (Tex.Sup.1973); Hidalgo v. Surety Savings and Loan Ass'n, 462 S.W.2d 540 (Tex.Sup.1971); City of Hutchins v. Prasifka, 450 S.W.2d 829 (Tex.Sup.1970).

As outlined in Nichols v. Smith, supra, the burden was upon petitioner (appellee-defendant) Sam Mack to disprove as a matter of law the allegations of fraudulent concealment made by respondent (appellant-plaintiff) Joan Mack Raney, and further to disprove as a matter of law that appellant Raney was not negligent and did not exercise reasonable diligence in asserting her claim to the community estate, or show and positively demonstrate that appellant has not sufficiently alleged a cause of action upon which relief can be granted. We have concluded that appellee Mack has done both.

The briefs of the attorneys representing each side are thorough and excellent. Rarely though have we seen such persistence as was used by appellee's attorney in seeking to discover what material issues of fact, if any, were presented by appellant. Every effort was used by appellee's attorney to discover specifically what appellant claimed to be fraudulent or what had been concealed. Detailed exceptions were made to appellant's (plaintiff's) petition for bill of review. The trial court sustained appellee's exceptions and required appellant to set out with particularity what she claimed to be wrong with specific items in the original inventory filed in the divorce proceedings, what appellant claimed had been concealed, and what fraudulent devices were used. Appellant filed her amended petition but failed to cure the defects to which appellee had taken exception. Appellee's attorney then filed and served detailed interrogatories on appellant seeking to discover the fraud and concealment urged by appellant, but the answers were vague and failed to point out any fraud, misrepresentation or concealment amounting to extrinsic fraud or matters that could not have been determined at the trial in the original proceedings.

Appellee Mack filed his motion for summary judgment along with his supporting affidavit to establish that no misrepresentation nor concealment had been made. Subsequently, depositions were taken of appellant and appellee and submitted to the trial court in conjunction with the motion for summary judgment. Appellee's attorney relentlessly questioned appellant about the alleged fraud and concealment which she contended appellant had committed. Her answers established the following:

1. That appellee Mack did not make any false representations to appellant or to her attorney about the value of any of the property in the inventory, nor did anyone who represented appellee. (Appellant's deposition, pp. 16, 31--32).

2. That appellant did not know of any way in which the inventory was false or fraudulent. (Appellant's deposition, p. 27).

3. That appellant did not have any specific information about any property that was not included in the inventory or discussed in Dr. Mack's deposition. (Appellant's deposition, pp. 51--52).

4. That appellant did not have any information concerning any conspiracy or fraud of George Joseph, Vicki Thomas, George Mack, Dortha Mack or Ed Mack. (Appellant's deposition, p. 51).

Appellant's two points of error complain only of the actions of appellee Sam Mack and no others. She states that the Evidence raises an issue that appellee, through fraudulent concealment and misrepresentation, prevented her from discovering and realizing the true nature and extent of the community estate in the original divorce proceedings, and that through the same concealment and misrepresentation she was prevented from asserting her rightful claim to the community estate. The evidence presented to the trial court consisted of only affidavits favorable to appellee's position, and the depositions of appellee and appellant. Appellee's deposition, if taken, alone, would not be sufficient to sustain a summary judgment in his favor even though all of the testimony in the deposition would be favorable to him, the reason being that it would be the testimony of an interested witness. However, when appellee's deposition is taken in conjunction with his supporting affidavit and its attachments, along with the supporting affidavits of others, it furnishes summary judgment proof negating appellant's allegations. The position maintained by appellee Mack of no concealment and no misrepresentations was not disputed by an Evidence having any probative force. Appellant's own testimony refutes her allegations of fraud and concealment.

Mrs. Raney testified in her deposition that she had employed an investigator who said he had found evidence of fraud and concealment and had compiled a report to that effect. She further testified that she had not seen the report and that she had not talked to the investigator about its contents, that she had only discussed the report with her attorneys. Appellant made no attempt to produce an affidavit from her investigator concerning the alleged fraud and concealment.

The movant, appellee Mack, has supported his motion for summary judgment by clear, direct and positive affidavits and other extrinsic evidence which we find to be sufficient on their face to entitle him to an instructed verdict. Appellant had no counter-affidavits before the trial court at the time the motion for summary judgment was considered. We feel that the summary judgment proof negates all of the allegations in the petition of Mrs. Raney and that appellee Mack has discharged his burden of establishing conclusively that, on the appellant's case as pleaded, he is entitled to prevail as a matter of law. We further conclude that the trial court was...