5 S.W.3d 334 | Tex. App. | 1999
OPINION
Jan Thomas Williams appeals the granting of a partial summary judgment
The clerk’s record includes findings of fact and conclusions of law signed by the trial judge in which he cited the doctrines of res judicata, waiver and estoppel, judicial admission, collateral estoppel, or collateral attack as the bases for granting the motion for partial summary judgment.
Eli H. Moores died in 1970, leaving all of his property in trust to his wife, Cordelia, and their four children, Ely T. Moores, Ida Lou Ames, Laverne McKemie, and Bebe Thomas. Cordelia was both the executrix of Eli’s estate and the trustee of the testamentary trust. The trust was to terminate on Cordelia’s death and all of Eli’s property was then to vest in his four children. A twenty-six-acre tract of real property
Cordelia died in 1990, causing Eli’s interest in the property to vest in his four children. Cordelia’s will left her interest in the property to her three surviving children, Ely T. Moores, Ida Lou Ames, and Laverne McKemie. Bebe Thomas predeceased her mother, and Cordelia did not leave any of her interest in the property to Thomas or to Thomas’ descendants.
Both wills were admitted to probate in the county court of Bowie County. Eli’s will was admitted in June 1971, and Cordelia’s will was admitted in November 1990. In each proceeding, an inventory, ap-praisement, and list of claims was filed, characterizing the property as the community property of Eh and Cordelia. Each inventory, appraisement, and list of claims was duly approved by the court.
On October 29, 1990, Jan Thomas Williams, Bebe Thomas’ daughter and sole heir, filed a petition for accounting, inventory, and temporary restraining order in the probate proceeding concerning Eli’s estate, and the following day a temporary restraining order was granted by the court, restraining the parties from disposing of the property. On November 13, 1990, Williams filed another petition for accounting, inventory, and temporary restraining order in the probate proceeding
In March 1998, Mary Moores, Trustee of the Ely T. Moores Trust, Ida Lou Ames, and Láveme McKemie initiated the instant lawsuit against Williams in the district court to partition the property.
In a summary judgment proceeding, the burden of proof is on the movant, and all doubts about the existence of a genuine issue concerning a material fact are resolved against the movant. See Cate, 790 S.W.2d at 562; Roskey v. Texas Health Facilities Comm’n, 639 S.W.2d 302, 303 (Tex.1982). The only grounds which this Court may consider on appeal as a basis for affirming the summary judgment are those issues that were expressly presented in the motion or response to the motion for summary judgment. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993).
In their response to Williams’ motion for summary judgment and in their own cross-motion for summary judgment, Moores expressly contend that Williams waived her right to make her claim to a greater ownership right in the property. Waiver is the intentional relinquishment of a known right or intentional conduct that is inconsistent with claiming that right. Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex.1996). The elements
In this case, Williams has an existing right to partial ownership of the property which she inherited from Eli through her mother’s estate. She had actual knowledge of the existence of this right, and she made this knowledge known when she filed her petition for accounting and inventory, and for a temporary restraining order in the proceeding concerning Cordelia’s estate.
It is clear from Williams’ actions, or lack thereof, that she relinquished any right she had to dispute the characterization of the property as the community property of Eli and Cordelia and to claim that her ownership interest in the property is any more than one-eighth. Williams was aware of and personally involved in Cordelia’s estate proceedings. In those proceedings, she clearly indicated that she had knowledge of her right to receive any interest that was devised to her mother through Eli’s will. After she clearly made her knowledge of this right known, she fell silent for more than eight years. During this long period of silence and inaction, plenty of avenues were available to her for asserting her claim, but she chose to take advantage of none of them. She failed to contest the estate proceedings, Tex. Prob. Code Ann. § 10 (Vernon 1980); she failed to file a written complaint that the filed inventory was erroneous or unjust, Tex. Prob.Code Ann. § 258 (Vernon 1980); she failed to appeal the order in the county court, Tex. Prob.Code Ann. § 31 (Vernon Supp.1999); and finally, she failed to move to transfer her petition to the district court, Tex. Prob.Code Ann. § 5 (Vernon Supp.1999). Williams’ silence and inaction for such an unreasonable period of time, coupled with her knowledge of her interest in the property, clearly indicated her intention to waive her right to assert this claim. See Tenneco Inc., 925 S.W.2d at 643; Alford, Meroney & Co., 619 S.W.2d at 213.
Because Williams waived her right to assert her claim to a one-fourth ownership
The judgment is affirmed.
. While the movant sought a partial summary judgment at the time the motion was filed, the parties agree there are now no issues remaining and that the court’s partial summary judg-meat is final.
. No one challenges the propriety of these findings and conclusions.
. All references to “the property” are to this twenty-six-acre tract.
. Appellees are referred to collectively as "Moores” in the remainder of this opinion. Their original petition filed in the district court identifies the parties in that litigation as "either the sole surviving heirs or a successor-in-interest to a surviving heir of Eli H. Moores and wife, Cordelia Moores, both deceased.”
. Williams stated the following, in pertinent part:
CORDELIA MOORES was the surviving spouse of ELI H. MOORES, and the two of them owned community property which was primarily located in Bowie County, Texas. Petitioner is the daughter of BEBE THOMAS, a child of ELI H. MOORES and CORDELIA MOORES, and is the sole heir-at-law of BEBE THOMAS, and is therefore entitled to receive any interest devised to BEBE THOMAS under the Last .Will and Testament of ELI H. MOORES, Deceased.