1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-21-00284-CV 

________________

ESTATE OF MICHAEL JOHN PHILLIPS

________________________________________________________________________

On Appeal from the County Court

Tyler County, Texas

Trial Cause No. PR-09605

________________________________________________________________________

MEMORANDUM OPINION

This is a permissive appeal of a Traditional Motion for Summary Judgment 

awarding a 401(k) plan and profit-sharing plan to Appellee James Patrick 

Phillips. SeeTex. R. App. P. 28.3; Tex. R. Civ. P. 168. Decedent Michael John 

Phillips was married to Decedent Laurie Leigh Phillips.1 Appellant Richard Scott 

Stanley is Laurie’s brother, and Appellee James is Michael’s brother. At the time of 

her death, Laurie participated in Norton Rose Fulbright’s (“NRF”) 401(k) plan and 

profit-sharing plans (collectively, “the Plans”). Laurie designated Michael as the 

primary beneficiary ofthe Plans and Stanley as a contingent beneficiary. James was 

1For clarity, we will refer to the Phillipses by their first names.
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Michael’s sole heir. The record shows that Michael survived Laurie by “a few days” 

but not 120 hours. James filed his Second Amended Traditional Motion for 

Summary Judgment arguing the Plans should be awarded to Michael’s estate

because, among other things, (1) Stanley is judicially estopped from arguing that 

Michael did not survive Laurie by a number of days, and (2) the Plans’ documents 

control, which required that Michael survive or “exist” at the time of Laurie’s death, 

and the 120-hour rule contained in the Texas Simultaneous Death Act does not 

apply. Stanley countered that the 120-hour survival rule applies, and since Michael 

failed to survive Laurie by the required period, the Plansshould be awarded to the 

contingent beneficiaries. The trial court granted James’s Second Amended Motion 

for Traditional Summary Judgment and granted Stanley’s motion for a permissive 

interlocutory appeal of the summary judgment on the basis that (1) the order involves 

controlling questions of law as to which there are substantial grounds for differences 

of opinion, and (2) an immediate appeal from the order may materially advance the 

ultimate termination of the litigation. See Tex. Civ. Prac. & Rem. Code Ann. § 

51.014(d); Tex. R. Civ. P. 168.

Texas Civil Practice and Remedies Code section 51.014 designates civil 

orders that may be appealed on an interlocutory basis, which is strictly construed.

See Tex. Civ. Prac. & Rem. Code Ann. § 51.014. Section 51.014(d) allows the

interlocutory appeal of an otherwise unappealable order upon the trial court’s 
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certification that the order involves a controlling question of law on which there is 

substantial grounds for disagreement and an immediate appeal may materially 

advance the ultimate resolution of the case. See id. § 51.014(d);Elephant Ins. Co. v. 

Kenyon, 644 S.W.3d 137, 146–47 (Tex. 2022). We have the discretion to accept or 

refuse to hear a permissive appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 

51.014(f); Indus. Specialists, LLC v. Blanchard Ref. Co., 652 S.W.3d 11, 15 (Tex. 

2022) (quoting Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 

732 (Tex. 2019)); Elephant Ins. Co., 644 S.W.3d at 146–47. In the trial court’s Order 

authorizing the permissive appeal, it characterized the following as controlling 

questions of law for which there is a substantial ground for difference of opinion and 

that an immediate appeal may materially advance the ultimate termination of the 

litigation:

1. Whether Richard Scott Stanley is judicially estopped from denying 

that Michael Phillipssurvived his wife, Laurie Phillips, when hemade, 

adopted and/or swore to such statements in the applications,

attachments and affidavits filed by him and/or his attorney in Case No. 

PR-09502; the Estate of Laurie Leigh Phillips, Deceased, pending in 

Tyler County, Texas?

2. Whether the Plan Administrator’s decision was correct when it

decided that the proceeds from the 401K Plan Account and the ProfitSharingPlan Account should be paid to the Estate of Michael Phillips,

because (i) Michael Phillips survived his wife, Laurie Phillips, (ii) 

Laurie Phillips named Michael Phillips as the sole designated 

beneficiary of her 401K Account and the Profit Sharing Account, (iii) 

Michael Phillips was entitled to all of the benefits under the ERISA 

Plans upon Laurie Phillip’s death, and as a result of her death, those 

funds are now payable to the Estate of Michael Phillips, and (iv) the 
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Texas survivor statutes have no application to the determination of 

beneficiaries under the Plan Administrator’s ERISA governed plan.

We entered an order accepting the permissive appeal, and we have jurisdiction over 

this matter under Texas Civil Practice and Remedies Code sections 51.014(d) and

(f). See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d), (f). Based on our answers 

to the foregoing questions, as discussed below, we affirm the trial court’s Order 

granting James’s Second Amended Motion for Traditional Summary Judgment. 

BACKGROUND OF UNDERLYING DISPUTE

Following the death of his brother, Michael, James filed an Application to 

Determine Heirship and Appointment of Independent Administrator. In that 

Application, James alleged that Michael died intestate and had been married to 

Lauriewho predeceased him. Stanley filed an Application to Determine Heirship in 

a separate proceeding pertaining to Laurie’s estate. In his Application, Stanley 

alleged that Laurie was married to Michael but predeceased him and that she died 

intestate. Stanley also filed an Application for Dependent Administration and Letters 

of Administration Pursuant to section 301.052 of the Texas Estates Code, in which 

he alleged that Michael died within days “after” Laurie and was not an heir under 

section 121.052. Stanley supported the Application for Dependent Administration

of Laurie’s estate with his affidavit averring that it was true, correct, and accurate 

and based on his knowledge and personal belief. Two witnesses provided affidavits 

in Laurie’s estate proceeding averring that she was married to Michael and that 
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Michael “died within days after” Laurie. In the proceedings, both James and Stanley 

described real and personal property owned by Michael and Laurie but did not list 

the Plans. 

In Michael’s estate proceeding, James filed a Petition for Declaratory 

Judgment alleging that at the time of Laurie’s death, she participated in NRF’s 

Employee Retirement Income Security Act (“ERISA”) 401(k) and profit-sharing 

plans, which NRF also managed. See generally 29 U.S.C. §§ 1001–1461. James 

further pleaded that Laurie designated Michael the primary beneficiary of the Plans, 

and Michael survived Laurie, thusMichael is the beneficiary of the Plans. To show 

that Michael’s estate was entitled to the proceeds of the Plans as the beneficiary, 

James cited the allegations made and affidavits filed by Stanley in Laurie’s estate

proceeding that claimed Michael died after Laurie. James added that NRF, as 

manager of the Plans, determined that Michael was entitled all the benefits under the 

Plans. Specifically, James cited the following statement from NRF:

. . . Laurie’s husband, Michael J. Phillips, survived her for some number 

of days after her death. Consequently, as her sole primary beneficiary

under the Firm’s Profit Sharing Plan and 401(k) Plan, Mr. Phillips was 

entitled to all her benefits under the plans upon her death, and as a result 

of his death, those benefits are now payable solely to his estate. As we 

have explained to all the parties before, the Texas survivor statutes have 

no application to the determination of beneficiaries under the Firm’s 

ERISA governed plans. 

In his Petition for Declaratory Judgment,James alleged that NRF acknowledged the 

Plans were governed by ERISA, and ERISA preempts state law. James further 
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pleaded that the delivery of the Plans to Michael’s estate is governed by the contract, 

and the contract did not require any survival period, rather it only required that 

Michael survive Laurie or “otherwise was existing at the time of her death.” Finally, 

James pleaded that the evidence is undisputed that Michael survived Laurie, and 

Stanley is judicially estopped from repudiating that Michael survived Laurie. James 

asked the trial court to make these declarations:(1) that Michael survived Laurie or 

was otherwise existing at the time of her death; and (2) that Michael was, and now 

his estate is, the rightful owner of the proceeds in the Plans. 

James moved to have a statutory probate judge preside over the contested 

portion of the proceedings, specifically the “Petition for Declaratory Judgment to 

Declare Beneficiary of the ERISA Plans,” which the trial court granted. 

MOTION FOR SUMMARY JUDGMENT

James filed his Second Amended Traditional Motion for Summary Judgment

arguing he was entitled to the receipt of all benefits under the Plans, because: (1) 

Laurie named Michael as the designated beneficiary of the Plans; (2) there is no 

required survival period by the Plans, which only requires that Michael survive 

Laurie; and (3) it is undisputed that Michael survived Laurie. In support of this, 

James contends that Stanley, a contingent beneficiary of the Plans, swore in his 

filings in Laurie’s estate proceedings that Michael survived Laurie by “a number of 

days” and “is judicially estopped from now claiming that Michael did not survive 
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Laurie.” James also argued that NRF determined the benefits should be paid to 

Michael’s estate as the designated beneficiary since he survived Laurie and there 

was no required survival period. James again pointed to the NRF’s determination 

that theTexas survival statutes had no application in determining beneficiaries under 

the Plans. James specifically argued that the Texas Simultaneous Death Act does not 

apply, rather Texas Estates Code section 121.001 governs. Section 121.001

provides, “This chapter does not apply if provision has been made by will, living 

trust, deed, or insurance contract, or in any other manner, for a disposition of 

property that is different from the disposition of the property that would be made if 

the provisions of this chapter applied.” Tex. Est. Code Ann. § 121.001.

James included the following evidence in support of his Second Amended 

Traditional Motion for Summary Judgment: NRF’s business records including 

401(k) and profit-sharing plan documents executed by Laurie Phillips; Stanley’s 

Application to Determine Heirship in Laurie’s estate proceeding, Cause No. PR09502,stating that Michael died after Laurie; Stanley’s Application for Dependent 

Administration also stating that Michael died shortly after Laurie; Stanley’s 

Affidavit claiming that facts within the Application for Dependent Administration 

are true and correct; “Distributee’s Consent to Application for Dependent 

Administration” filed by two of Laurie’s heirs agreeing to the Application; affidavits 

of witnesses Derryl Milburn and James Hodges filed in Laurie’s estate proceeding 
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and averring that Michael died within a few days after Laurie; “Proof of Death and 

Other Facts” filed by Stanley in PR-09502 claiming that Michael died after Laurie 

and that Laurie died without a will; a copy of McCurtis v. Life Ins. Co. of North 

America opinion; “Order Granting Dependent Administration” in PR-09502 to 

Stanley on behalf of Laurie; and “Judgment Declaring Heirship” in PR-09502 

determining that Stanley was Laurie’s heir. 

Stanley filed his “Response in Opposition to Second Amended Motion for

Traditional Summary Judgment.” In his Response, Stanley contended that judicial 

estoppel does not preclude his claims. Stanley further asserted that ERISA does not 

preempt the application of Texas Estates Code section 121.052.He also argues that

Texas Estates Code section 121.102 applies, Michael was not an heir under the 

Estates Code because he did not survive Laurie by 120 hours, and Texas Estates 

Code section 121.001 does not apply. 

The trial court granted James’s Second Amended Traditional Motion for 

Summary Judgment. The trial court’s Order also permitted Stanley to appeal and 

identified the two questions posed above. 

PERMISSIVE APPEAL SCOPE OF REVIEW

The Supreme Court of Texas recently clarified the scope of review for 

permissive appeals. See Elephant Ins. Co., 644 S.W.3d at 147. When an appellate 

court accepts a permissive interlocutory appeal, it should “‘address the merits of the 
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legal issues certified.’” Id. (quoting Sabre Travel Int’l, 567 S.W.3d at 733). We 

resolve permissive appeals by applying the same principles of other appeals, 

“including addressing all fairly included subsidiary issues and ancillary issues 

pertinent to resolving the controlling legal issue.” Id. (citing Tex. R. App. P. 38.1, 

53.2). While a controlling legal issue must be involved to secure a permissive appeal, 

it is the order that is on appeal, and the Rules of Appellate Procedure prevent strict 

construction of issues presented on appeal. See id.; see also Tex. Civ. Prac. & Rem. 

Code Ann. § 51.014(d); Tex. R. App. P. 38.1(f), 53.2. Even so, parties may not add 

to the trial court’s description of the controlling legal question. City of Houston v. 

Hous. Prof’l Fire Fighters’ Ass’n, Loc. 341, 626 S.W.3d 1, 22 (Tex. App.—Houston 

[14th Dist.] 2021), aff’d, 664 S.W.3d 790 (Tex. 2023). 

ANALYSIS

A. Determination of the Plans’ Administrator Regarding Payment of Benefits

We begin with the trial court’s second question in this permissive appeal, 

which is whether the determination of the Plans’ Administrator that the benefits 

should be paid to Michael’s estate was correct, because: (i) Michael survived his 

wife, Laurie; (ii) Laurie named Michael as the sole designated beneficiary of her

401(k) account and profit-sharing account; (iii) Michael was entitled to all the 

benefits under the ERISA Plans upon Laurie’s death, and because of her death, those 

funds are now payable to the estate of Michael; and (iv) the Texas survivor statutes 
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have no application to the determination of beneficiaries under the Plan 

Administrator’s ERISA governed plan. In the trial court, James sought a declaration 

that the Plans’ benefits were payable to Michael’s estate since Michael was the 

primary beneficiary under the Plans and was alive when Laurie died. 

NRF, as an ERISA plan administrator,is duty bound to act in accordance with 

the documents and instruments governing the plan if they are consistent with ERISA.

See Kennedy v. Plan Adm’rfor DuPont Sav. and Inv. Plan, 555 U.S. 285, 300 (2009)

(citations omitted); see also 29 U.S.C. § 1104(a)(1)(D) (imposing a fiduciary duty 

on plan administrators to act in accordance with plan documents). The purpose of 

ERISA is to minimize administrative and financial burdens on plan administrators, 

who should be able to look at the plan documents and determine distribution 

instructions without going to court. See Kennedy, 555 U.S. at 301–02. Here, NRF 

looked at the plan documents and beneficiary designations and determined that (1) 

Michael should have received the benefits, and (2) the Texas survival statutes did 

not apply. 

At issue is Chapter 121 of the Texas Estates Code, and specifically, sections

121.001 and 121.102. See Tex. Est. Code Ann. §§ 121.001, 121.102. Chapter 121 

entitled “Survival Requirements” generally mandates a 120-hoursurvival period for 

intestate succession and contingent beneficiaries, among other things. See id. § 

121.052 (intestate succession), 121.102 (contingent beneficiaries). James contends 
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that section 121.001 precludes Chapter 121’s applicability, but Stanley argues the 

120-hour survival period applies to certain portions of these proceedingsincluding

community property, intestate succession, and distributing property to beneficiaries. 

See id. §§ 121.001, 121.052, 121.053, 121.102, 121.152. Stanley contends that 

section 121.102(a) applies to NRF’s payment of benefits under the Plans. See id. § 

121.102(a). Since sections 121.001 and 121.102(a) potentially implicate the benefit 

payments to beneficiaries under the Plans, that is where we focus our inquiry. See 

id. §§ 121.001, 121.102(a).

Section 121.001 provides, “This chapter does not apply if provision has been 

made by will, living trust, deed, or insurance contract, or in any other manner, for a 

disposition of property that is different from the disposition of the property that 

would be made if the provisions of this chapter applied.” Id. § 121.001. (emphasis 

added). Whereas Section 121.102(a) instructs, “If property is disposed of in a 

manner that conditions the right of a beneficiary to succeed to an interest in the 

property on the beneficiary surviving another person, the beneficiary is considered 

not to have survived the other person unless the beneficiary survives the person by 

120 hours[.]” Id. § 121.102(a). The Plans’ documents specifically addressed survival 

but did not require that a beneficiary survive a participant by 120 hours. Instead, they 

required only that the primary beneficiary be living at the time of the participant’s 

death, specifically, the primary beneficiary would be paid “unless” they “otherwise 
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cease[d] to exist before” the participant’s death. Since the Plans’ documents qualify 

as a “provision . . . made” in “any other manner” and included “a disposition of 

property that is different from the disposition of the property that would be made if 

the provisions of this chapter applied[,]” section 121.001 precludes the applicability 

of section 121.102(a) or Chapter 121’s other provisions to the Plans. See id. §§ 

121.001, 121.102(a).

Elsewhere instructive, the Texas Estates Code provides more guidance for 

ERISA plans and defines “employees’ trust” as including, among other things, “an 

employer-sponsored benefit plan or program[]” under ERISA. Id. § 111.051(1-

a)(C). Section 111.052 provides, 

(a) This code does not invalidate:

(1) any provision in an insurance policy, employment contract, 

bond, mortgage, promissory note, deposit agreement, employees’

trust, retirement account, deferred compensation arrangement, 

custodial agreement, pension plan, trust agreement, conveyance of 

property, security, account with a financial institution, mutual fund 

account, or any other written instrument effective as a contract, gift, 

conveyance, or trust, stating that:

(A) money or other benefits under the instrument due to or 

controlled or owned by a decedent shall be paid after the decedent’s 

death, or property that is the subject of the instrument shall pass, to 

a person designated by the decedent in the instrument[.]

Id. § 111.052(a)(1)(A). The Estates Code explains that “a provision described by 

Subsection (a)(1)(A) is considered nontestamentary.” Id. § 111.052(b). 

The parties do not dispute that these wereERISAplans and that they meet the 

Estates Code’s definition of an “employees’ trust.” See id. § 111.051(1)(C). As 
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discussed above, thePlans’ documents established that the primary beneficiary must 

survive the participant to receive the Plans’ benefits. The documents also clarified 

that only if Michael, as the primary beneficiary, “otherwise ceases to exist before” 

Laurie’s death would the benefits be payable to Laurie’s designated contingent 

beneficiaries. The Plans’ documents provide that upon Laurie’s death, assuming 

Michael existed, the Plans’ benefits would be paid to him based on her designation.

The Estates Code instructs that such a provision is not invalidated by the Code and 

is “nontestamentary.” See id. § 111.052(a)(1)(A), (b). If we accept Stanley’s 

argument that the survival statutes applied in this situation, it would allowthe Estates 

Code to invalidate a provision that Laurie’s benefits under the Plans be paid after 

her death to a person she designated in the Plans’ documents, which directly 

contravenes the statute. See id. § 111.052(a)(1)(A).

Under thePlans’ documents, which provided for the disposition of benefits in 

a manner different from the 120-hour survival period and consistent with NRF’s 

determination,the trial court properly concluded that Michael survived Laurie, as he 

had not “otherwise cease[d] to exist” before her death and was the sole primary 

beneficiary named in the NRF 401(k) and profit-sharing plans. See id. § 121.001;

see also 29 U.S.C. § 1104(a)(1)(D); Kennedy, 555 U.S. at 300 (citations omitted). 

Therefore, benefits payable under the Plans to Michael as the primary beneficiary 

upon Laurie’s death became payable to his estate. NRF as the Plans’ Administrator
14

properly concluded the Texas Estates Code Chapter 121’s survival statutes did not 

apply to the Plans. See Tex. Est. Code Ann. § 121.001; see also 29 U.S.C. § 

1104(a)(1)(D); Kennedy, 555 U.S. at 300 (citations omitted). We hold that NRF

properly concluded the Plans’ benefits were payable to Michael’s estate. See Tex. 

Est. Code Ann. §§ 111.052(a)(1)(A), 121.001; see also 29 U.S.C. § 1104(a)(1)(D); 

Kennedy, 555 U.S. at 300 (citations omitted).

Stanley attempts to characterize this as an issue of ERISA preemption. In 

doing so, he tries to impermissibly broaden the scope of this permissive appeal, as 

“parties may not add to the trial court’s description of the controlling legal question.” 

City of Houston, 626 S.W.3d at 23 (citations omitted). We do not address the issue 

of ERISA preemption, other than to conclude such an analysis is unnecessary since

the Texas Estates Code expressly allows for the disposition of property in a manner 

different than that provided for in Chapter 121 by the survival statutes, which the 

Plans’ documents did. See Tex. Est. Code Ann. § 121.001. Further,such provisions 

for payment upon a participant’s death to their designated beneficiary are not 

invalidated by the Texas Estates Code. See id. § 111.052(a)(1)(A).

B. Judicial Estoppel 

We now turn to the first question in this permissive appeal–the matter of 

judicial estoppel. Specifically, we are asked to determine whether Stanley “is 

judicially estopped from denying that Michael survived his wife, Laurie, when he
15

made, adopted and/or swore to such statements in the applications, attachments and 

affidavits filed by him and/or his attorney in Case No. PR-09502; the Estate of Laurie 

Leigh Phillips, Deceased, pending in Tyler County, Texas.” Fairly encompassed in 

this analysis are two subsidiary issues. First, we must determine whether Stanley is 

judicially estopped from claiming that Laurie died after Michael. If so, we then 

determine whether Stanley is estopped from claiming that Michael failed to survive 

Laurie by 120 hours.

The doctrine of judicial estoppel prevents a party from adopting an 

inconsistent position from one successfully maintained in an earlier proceeding. 

Pleasant GladeAssembly of God v. Schubert, 264 S.W.3d 1, 6 (Tex. 2009) (citation 

omitted). “The doctrine is not strictly speaking estoppel, but rather is a rule of 

procedure based on justice and sound public policy.” Id. (citing Long v. Knox, 291 

S.W.2d 292, 295 (1956)). The elements of judicial estoppel are: (1) a sworn, prior 

inconsistent statement made in a judicial proceeding; (2) the party sought to be 

estopped successfully maintained the prior position; (3) the prior inconsistent 

statement was not made inadvertently or because of mistake, fraud, or duress; and 

(4) the statement was deliberate, clear, and unequivocal. In re Marriage of Butts, 

444 S.W.3d 147, 151 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citations 

omitted); Spera v. Fleming, Hovenkamp & Grayson, P.C.,25 S.W.3d 863, 871 (Tex. 

App.—Houston [14th Dist.] 2000, no pet.); see also Johnson v. Haugen, No. 09-06-
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258-CV, 2006 WL 3743012, at *1 (Tex. App.—Beaumont Dec. 21, 2006, no pet.) 

(mem. op.).

In the prior proceeding, one of the issues was determining Laurie’s heirs. An 

“heir” is “a person who is entitled under the statutes of descent and distribution to a 

part of the estate of a decedent who dies intestate” and “includes the decedent’s 

surviving spouse.” Tex. Est. Code Ann. § 22.015. Stanley stated that Michael died 

after Laurie. The summary-judgment evidence shows that Stanley made the 

following statements in the prior proceeding: (1) Michael “only survived [Laurie] a 

few days and pursuant to Estate Code § 121.052 is not an heir[;]” and (2) Michael’s 

“death occurred within a few days after Laurie and pursuant to Estate Code § 

121.025 is not an heir.”Stanley swore to the truth of at least one of these statements. 

The summary-judgment evidence also included affidavits of two witnesses that 

Stanley submitted in the prior proceeding that likewise averred Michael died “within 

days after the death of [Laurie].” Stanley took these positions in his Application to 

Determine Heirship and Application for Dependent Administration. These 

statements contradict Stanley claiming Michael was not alive at the time of Laurie’s 

death. He maintained that position successfully, as the probate court signed a 

Judgment Declaring Heirship, which did not name Michael as an heir. See Moore v. 

Neff, 629 S.W.2d 827, 829 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.) 

(applying judicial estoppel where party successfully maintained a contrary position 
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in a prior divorce proceeding which prohibited claims of heirship in current 

proceeding). Stanley argues on appeal that there is no evidence ofthe order of death, 

and the order of death does not matter for purposes of the 120-hour rule’s 

applicability. We disagree. For the Plans and the documents that control them, the 

order of death was critical to determining who was entitled to the benefits for the 

reasons explained above. In the prior proceeding, Stanley provided a sworn 

statement and presented affidavits from witnesses indicating that Michael was alive 

when Laurie died, as shown by James’s summary-judgment evidence. Therefore, we 

conclude Stanley is judicially estopped from asserting that Laurie died after 

Michael—that Michael was not alive when Laurie died. See Schubert, 264 S.W.3d 

at 6; In re Marriage of Butts, 444 S.W.3d at 151; Johnson, 2006 WL 3743012, at *1; 

Spera, 25 S.W.3d at 871.

Stanley argued in the trial court and on appeal that nothing in the record 

supports that the trial court accepted or relied on the order of death in the prior 

proceeding and cites to our decision in Compass Bank v. Collier. See No. 09-19-

00112-CV, 2020 WL 6494213, at *15 (Tex. App.—Beaumont Nov. 19, 2019, no 

pet.) (mem. op.). In that case, a party failed to list claims against the bank in a 

schedule of assetsin a prior bankruptcy, and the party claimed it was inadvertent as 

he did not know at the time he had a cause of action against the bank. See id. at *15–

16. Although bankruptcy was dismissed, the record also contained conflicting 
18

information about the reason for the dismissal, so we could not say the bank 

established acceptance of the position by the prior court. See id. Such is not the case 

here for two reasons. First, nothing shows Stanley made these statements 

inadvertently or under duress. Second, Stanley had two positions he could take to 

avoid Michael being named as an heir in the prior proceeding since he was Laurie’s 

spouse: (1) Michael died before Laurie; or (2) Michael died after Laurie but did not 

live 120 hours after her death. SeeTex. Est. Code Ann. § 22.015 (including a spouse 

as an heir). Stanley chose the latter, which the trial court accepted. As the sole 

position presented to the earlier court, it is unlike the situation in Compass Bank v. 

Collier where different reasons were offered in the trial court, so acceptance of the 

position could not be ascertained. See Compass Bank, 2020 WL 6494213, at *15–

16.

As to the next question implicated by this analysis, however, we conclude that

Stanley is not judicially estopped from claiming thatMichael failed to survive Laurie 

by 120 hours, which is not contrary to his position in Laurie’s estate proceeding. See

Schubert, 264 S.W.3d at 6. Rather, he maintained that Michael failed to survive 

Laurie by the requisite 120 hours, thus Chapter 121’s survival statutes applied to 

preclude Michael being an heir. See Tex. Est. Code Ann. § 121.052. Since Stanley’s 

position that Michael failed to survive Laurie by 120 hours is not contrary to his 

claims in the prior proceeding, the elements of judicial estoppel are not satisfied.See
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Schubert, 264 S.W.3d at 6; Horizon Offshore Contractors, Inc. v. Aon Risk Servs. of 

Tex., Inc., 283 S.W.3d 53, 70 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) 

(determining that where prior sworn statement is not inconsistent with current 

position, it is not a proper basis for judicial estoppel). We have already explained 

above why Chapter 121 does not apply to the Plans, yet to the extent there is a dispute 

in these proceedings regarding Michael and Laurie’s remaining property, Stanley is 

not judicially estopped from asserting that Michael failed to survive Laurie by 120 

hours since it is not inconsistent with his prior position. See Schubert, 264 S.W.3d 

at 6; Horizon Offshore, 283 S.W.3d at 70.

We concludeStanley is judicially estopped from contending that Michael was 

not alive at the time of Laurie’s death for purposes of the Plans, which provided for 

the disposition of property in a manner different from the survival statutes. SeeTex. 

Est. Code Ann. § 121.001; see also Schubert, 264 S.W.3d at 6. For other property

implicated in these proceedings where the survival statutes may apply, Stanley is not 

precluded from arguing that Michael did not survive Laurie by 120 hours. See

Schubert, 264 S.W.3d at 6; Horizon Offshore, 283 S.W.3d at 70.

C. Application to These Circumstances: Was Summary Judgment Proper? 

As the Supreme Court of Texas recently instructed regarding permissive 

appeals, we now apply the answers to these questions to the circumstances before 

us. See Elephant Ins. Co., 644 S.W.3d at 147 (explaining that courts should not only 
20

address the controlling legal questionsin the abstract but also whether such applies

to or is fairly implicated by the facts and circumstances presented). We review a trial 

court’s decision to grant summary judgment de novo.See Shell Oil Co. v. Writt, 464 

S.W.3d 650, 654 (Tex. 2015)(citation omitted). We view the evidence in the light 

most favorable to the nonmovant. Id. (citing City of Keller v. Wilson, 168 S.W.3d 

802, 824 (Tex. 2005)). In doing so, we indulge every reasonable inference and 

resolve any doubts against the motion.See City of Keller, 168 S.W.3d at 824. 

“Undisputed evidence may be conclusive of the absence of a material fact issue, but 

only if reasonable people could not differ in their conclusions as to that 

evidence.” Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012)(citation omitted). A 

party moving for traditional summary judgment has the burden of establishing there 

is no genuine issue of material fact as to the matters expressly set forth in the motion 

and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c);

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.

2009). If the moving party produces evidence entitling it to a summary judgment, 

the burden shifts to the nonmovant to present evidence that raises a material fact 

issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); see also Tex. R. Civ. P. 

166a(c). When the trial court fails to specify the grounds on which it granted 

summary judgment, we must affirm if any of the summary judgment grounds are 
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meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73 

(Tex. 2000) (citation omitted). 

In this case, as the movant for traditional summary judgment, James had to 

produce evidence that (1) Michael was a designated beneficiary under thePlans, and 

(2) Michael was alive at the time of Laurie’s death per the Plans’ documents. See

Tex. R. Civ. P. 166a(c); Fielding,289 S.W.3d at 848.First,James provided evidence 

that Michael was a designated beneficiary in the form of NRF’s business records and 

documents from the Plans showing that benefits were payable to Michael if he was 

alive—did not “otherwise cease[] to exist” at the time of Laurie’s death. Second, 

James provided summary-judgment evidence that Michael survived Laurie in the 

form of two witnesses’ affidavits that Stanley presented in a prior proceeding. 

Specifically, witnesses Milburn and Hodges averred that Laurie was married to 

Michael at the time of her death, and that “[h]e died within days after the death of 

[Laurie].” 

Since James produced evidence entitling him to summary judgment, the 

burden shifted to Stanley as the nonmovant to present evidence that raised a material 

fact issue. See Tex. R. Civ. P. 166a(c); Walker, 924 S.W.2d at 377. Stanley failed to 

come forward with any evidence to contradict these witnesses’ affidavits averring 

that Michael died days after Laurie. We also note that these were affidavits Stanley 

presented in Laurie’s probate proceedings. Once James presented these affidavits 
22

establishing that Michael died after Laurie, Stanley was required to come forward 

with evidence to show that Michael did not die after Laurie. See Tex. R. Civ. P. 

166a(c); Walker, 924 S.W.2d at 377. Moreover, as previously explained, James’s 

summary-judgment evidence conclusively established the applicability of judicial 

estoppel regarding claimsthat Michael was not alive when Laurie died. See Tex. R. 

Civ. P. 166a(c). 

Stanley argues on appeal that there was no evidence such as death certificates 

or autopsy reports to establish order of death. Yet, James included summaryjudgment evidence in the form of Stanley’s statement and the affidavits of two 

witnesses in a prior proceeding that averred Michael died after Laurie but did not 

survive her by 120 hours. Even if judicial estoppel did not apply in this situation, 

Stanley did not include any evidence in his response that would dispute this. See id.; 

Walker, 924 S.W.2d at 377 (explaining burden shifting to nonmovant to create a 

genuine issue of material fact once movant conclusively establishes his right to 

judgment). Thus, the only evidence available in the record establishes that Michael 

died after Laurie.

Since Stanley failed to present evidence raising a genuine issue of material 

fact, the trial court properly granted James’s Second Amended Motion for 

Traditional Summary Judgment. SeeTex. R. Civ. P. 166a(c); Fielding, 289 S.W.3d 

at 848; Walker, 924 S.W.2d at 377. Having determined at least one summary-
23

judgment ground in James’s Motion was meritorious, we must affirm. See FM 

Props., 22 S.W.3d at 872–73. 

CONCLUSION

We conclude that NRF as Administrator of the Plans properly determined that 

the Plans’ benefits were payable to Michael’s estate. We also conclude that Stanley 

is judicially estopped from claiming that Michael was not alive at the time of 

Laurie’s death; however, for other property implicated in these proceedings where 

the survival statutes may apply, Stanley is not precluded from arguing that Michael 

did not survive Laurie by 120 hours. Finally, having concluded the trial court 

properly granted Michael’s Second Amended Traditional Motion for Summary 

Judgment, we affirm the trial court’s judgment.

AFFIRMED.

 W. SCOTT GOLEMON 

 Chief Justice

 

Submitted on May 18, 2023

Opinion Delivered September 21, 2023

Before Golemon, C.J., Horton and Wright, JJ.