Shippy v. Boyd

1

TERESA SHIPPY, APPELLANT v. TRAVIS BOYD, INDEPENDENT EXECUTOR OF THE ESTATE OF DANIEL ALLEN BOYD, DECEASED, APPELLEE

No. 07-22-00188-CV

Court of Appeals of Texas, Seventh District, Amarillo

May 9, 2023

On Appeal from the 84th District Court Hansford County, Texas Trial Court No. CV-05667, Honorable Curt Brancheau, Presiding

Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

MEMORANDUM OPINION

BRIAN QUINN, CHIEF JUSTICE

Teresa Shippy appealed the trial court's final summary judgment favoring Travis Boyd, independent executor of the estate of Daniel Allen Boyd. Also encompassed within the appeal is the trial court's order granting Boyd sanctions against Shippy for discovery abuse. Seven issues pend for review. We affirm.

Background

Shippy was married to the late Daniel Allen Boyd. They divorced in 2013. In dividing the marital estate, the trial court ordered a receiver to gather certain personalty and realty for purposes of sale; the property was itemized in Exhibit C to the judgment. Once the receiver sold the items and paid various expenses, he was to divide the remainder equally between Shippy and Boyd. Neither occurred since the receiver failed to take possession of the property.

Furthermore not until the death of Boyd in 2021 did Shippy act to effectuate or enforce the divorce decree. She began by filing a notice of claim as part of the administration of Boyd's estate. Implicit from the notice was her belief that Boyd retained the Exhibit C property. So, per that belief, she first claimed "a joint, currently undivided interest" in the Exhibit C property and then averred that Boyd or his executor "may have converted" it. That led to her demand for an accounting. Shippy also sought to consolidate the estate proceeding with the divorce action finalized years earlier.

Travis Boyd, son of Boyd and Shippy and the executor of Boyd's estate, eventually moved for summary judgment on the claim. He contended, among other things, that "any action to enforce the 2013 Divorce Decree or for conversion against anyone [is] barred by limitations as a matter of law." The trial court ultimately granted the motion and signed a final summary judgment favoring Travis. Within the decree, it said: 1) "there [was] no issue of material fact that Claimant Shippy was aware of her potential claim for enforcement and subsequent conversion but waived any such claims until the filing of the present suit against the estate, as such the claim for conversion is barred by limitations"; 2) "Claimant Shippy's claim against the Estate of Daniel Allen Boyd, Deceased, is hereby dismissed with prejudice"; and 3) "[t]his judgment finally disposes of all claims and all parties and is appealable." Shippy appealed.

Issue One: Probate Judge's "Finding"

Shippy initially contends that the trial court erred in granting summary judgment because a "probate judge" found that she had an interest "in property of the Estate as claimed in her pleading supported by the attached District court decree." How this negates the defense of limitations was a matter left unexplained. See Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 226 (Tex. 2022) (explaining an appellant must negate each ground upon which summary judgment was founded). More importantly, the alleged finding of the probate judge was not urged below as a ground to thwart summary judgment. This is of import because "[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." Id.; TEX. R. CIV. P. 166a(c). Shippy having withheld the issue from consideration by the trial court, we cannot use it as reason to reverse the summary judgment and therefore, overrule the issue.

Issue Two: Summary Judgment

Next Shippy contends that Travis failed to carry his summary judgment burden. This is purportedly so for two reasons. First, she supposedly had a joint undivided interest in the community property described within Exhibit C. Since that property was never sold by the receiver, it remained undivided in her view. According to Shippy, "[p]roperty rights don't dissolve or disappear by the passage of time." "If it wasn't divided as that term is used in divorce proceedings[,] th[e]n she currently possesses the right to have a final ruling on the right to division by virtue of family code statute and until that time[,] she has a cognizable interest in the estate property which the probate court must give effect to." Assuming that there is no temporal restriction on when divorced spouses can petition to divide undivided property, we still must reject Shippy's contention.

Our reason for doing so lies within the divorce decree. Through it, the court ordered the property to be sold and the net proceeds divided. That effectively divided the property in question. Neither spouse was awarded the property itself. Instead, each was to receive half of the net proceeds after sale. The trial court having so divided the Exhibit C property, the division cannot be changed. See TEX. FAM. CODE ANN. § 9.07(a) (stating that a “court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment”).

Secondly, Shippy asserts that the trial court erred in granting final summary judgment because the motion encompassed less than all the claims. See G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (stating that "[g]ranting a summary judgment on a claim not addressed in the summary judgment motion therefore is, as a general rule, reversible error"). Allegedly, her notice of claim encompassed two potential causes of action, one establishing her joint ownership in property of the estate and the other for conversion. She believes that Travis pursued summary judgment only on the claim of conversion. We disagree.

Travis attacked her claim of joint ownership in estate property by contending that Shippy was only seeking to re-divide marital property. The effort contravened § 9.07 of the Family Code, according to him. See TEX. FAM. CODE. ANN. § 9.07(a) (stating that a court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment). Moreover, Shippy did not attack on appeal that basis for summary judgment.

Shippy mentioned one further claim upon which Travis supposedly failed to seek summary judgment. It consisted of her motion to consolidate the probate matter with the earlier divorce proceeding. Yet, the rule about granting summary judgment on "claims" unaddressed in the motion speaks of "claims." G &H Towing Co., 347 S.W.3d at 297. A motion to consolidate is a procedural request, not a claim or cause of action. We also note that Shippy cited no authority suggesting that procedural motions are "claims" for purposes of summary judgment. That is, she cited no authority suggesting a summary judgment movant must also prove he is entitled to summary judgment on pending procedural motions. Nor do we know of such authority. For that reason, we also reject this contention and overrule the issue.

Issue Three: Denial of Continuance for Discovery

Through her third issue, Shippy contends the trial court erred by refusing to allow her to obtain discovery sought under Texas Rule of Civil Procedure 166a(g). Allegedly, the discovery was needed to determine 1) what happened to the property listed in Exhibit C, 2) whether Travis dealt with that property in a way warranting his removal as executor, and 3) whether Shippy had other causes of action available to her. We overrule the issue.

For claimants who cannot present facts essential to justify opposition to an opponent's summary judgment motion, rule of civil procedure 166a(g) provides an avenue of relief. According to the rule, "should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." TEX. R. CIV. P. 166a(g). Invoking that rule requires one to file either an affidavit explaining the need for further discovery or a verified motion for continuance. See Tenneco Inc. v. Enter. Products Co., 925 S.W.2d 640, 647 (Tex. 1996); Anthony v. Bank of Am., N.A., No. 07-22-00140-CV, 2022 Tex.App. LEXIS 9553, at *2 (Tex. App.-Amarillo Dec. 29, 2022, no pet.) (mem. op.) The appellate record contains neither. So, her motion was deficient, and that requires us to overrule her complaint. Anthony, 2022 Tex.App. LEXIS 9553, at *2

Issue Four: Denial of Consolidation

Shippy next contends that the trial court erred by refusing to consolidate the 2013 divorce and Boyd probate actions. That allegedly resulted in "potential manifest injustice." We overrule the issue.

Our disposition of the foregoing issues addressing the propriety of summary judgment renders consolidation moot. Simply put Shippy has not shown that the trial court erred in granting...