Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-15-00397-CV

IN THE ESTATE OF Luisa R. MONTEMAYOR

From the Probate Court No. 2, Bexar County, Texas

Trial Court No. 2010-PC-3012

Honorable Tom Rickhoff, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Karen Angelini, Justice

Marialyn Barnard, Justice

Luz Elena D. Chapa, Justice

OPINION ON MOTION FOR REHEARING

Delivered and Filed: June 1, 2016

AFFIRMED; MOTION FOR REHEARING GRANTED

Marcelo R. Montemayor appeals the trial court’s summary judgment in favor of Grace 

Calentine. On November 9, 2015, the clerk of the trial court filed a notice stating Calentine 

requested a supplemental clerk’s record to include exhibits to her motion for summary judgment 

that were omitted from the original clerk’s record. The clerk explained Calentine did not file the 

requested exhibits in the trial court when she filed her motion for summary judgment. The clerk 

stated she made two attempts to contact counsel for appellee and certified that a copy of the notice 

was served on the parties. Although Calentine acknowledged she had filed a request for a 

supplemental record, she did not contest the clerk’s explanation that the exhibits were not filed 

with the motion. 
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On March 9, 2016, we issued an opinion and judgment reversing the trial court’s summary 

judgment because Calentine failed to demonstrate she was entitled to judgment as a matter of law. 

After we issued our opinion, the clerk of the trial court filed a supplemental clerk’s record 

containing the exhibits Calentine stated were missing. The clerk filed a letter clarifying that 

Calentine had, in fact, filed the omitted exhibits when she filed her motion for summary judgment. 

Calentine filed a motion for rehearing in this court, arguing the record now shows she is entitled 

to judgment as a matter of law. Because we agree, we withdraw our opinion and judgment of 

March 9, 2016, and substitute this opinion and judgment in their stead. 

BACKGROUND

The trial court appointed Montemayor as independent executor of Luisa R. Montemayor’s 

estate. Calentine filed an original petition alleging that on December 6, 2010, Montemayor 

executed a deed conveying to himself real property that Luisa’s will devised to her children 

equally. Montemayor was removed as executor, and Calentine requested that the trial court declare

the deed void and quiet title in the current executrix of the estate. Montemayor filed an answer, 

generally denying Calentine’s allegations. In the second paragraph of his answer, Montemayor 

alleged, “For further answer, if such should be necessary and by way of affirmative defense, 

[Montemayor] states that the act of ‘sell, manage, and dispose’ was done under the power of the 

executor, and that he was duly appointed by the Court as the executor of said Estate.” 

Calentine filed a traditional motion for summary judgment on her quiet title claim, arguing 

she was entitled to judgment as a matter of law because Montemayor violated the terms of the will 

and breached his duty by selling the property to himself without the authorization or approval of 

other devisees. Calentine produced the executor’s deed and two affidavits in support of her motion. 

The affidavits state Calentine and another daughter (both devisees) of Luisa did not authorize 

Montemayor to sell or convey the property. Calentine also filed a no-evidence motion for summary 
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judgment on Montemayor’s affirmative defense of “sell, manage and dispose,” arguing the 

allegation did not raise any cognizable affirmative defense in a suit to quiet title.

Montemayor filed a response and an affidavit in which he swore he was appointed 

independent executor, was issued letters testamentary on November 1, 2010, and had the power to 

“sell, manage, and dispose” of all of Luisa’s estate. He also swore that pursuant to his authority, 

he executed a deed on December 6, 2010, and sold the property for $50,000. He further swore that 

as of December 6, 2010, he was willing and able to pay all heirs their share of the proceeds from 

the sale of the property.

The trial court granted Calentine’s traditional and no-evidence motions for summary 

judgment. The judgment declares Montemayor’s deed void and awards Calentine costs. 

Montemayor now appeals.

STANDARDS OF REVIEW

To prevail on a traditional motion for summary judgment, the movant must show “there is 

no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of 

law.” TEX. R. CIV. P. 166a(c); accord Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.

1985). A plaintiff moving for summary judgment on its claim must conclusively prove all the 

elements of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 

223 (Tex. 1999). To determine whether the plaintiff, as the movant, met her burden, we examine 

the evidence presented in the motion and response. Jacobs v. Huser Const., Inc., 429 S.W.3d 700, 

702 (Tex. App.—San Antonio 2014, no pet.). Once the movant has established a right to summary 

judgment, the burden shifts to the respondent to present evidence that would raise a genuine issue 

of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

“When a party moves for a no-evidence summary judgment, the nonmovant must produce some 

evidence raising a genuine issue of material fact.” Romo v. Texas Dep’t of Transp., 48 S.W.3d 265, 
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269 (Tex. App.—San Antonio 2001, no pet.) (citing TEX. R. CIV. P. 166a(i)). The nonmovant does 

not have the burden to marshal its evidence, but it must point out evidence that raises a fact issue 

on the challenged elements. Id. This court’s de novo review is limited to the grounds raised in the 

written motion for summary judgment in the trial court. See City of Houston, 589 S.W.2d at 677.

We review a traditional and no evidence summary judgment using the same legal 

sufficiency standard we use in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 

S.W.3d 742, 750-51 (Tex. 2003). In reviewing the evidence, we take as true all evidence favorable 

to the nonmovant and “[w]e indulge every reasonable inference and resolve any doubts in the 

nonmovant’s favor.” Rhone-Poulenc, 997 S.W.2d at 223. We review the evidence in the light most 

favorable to the party against whom the summary judgment was rendered, “crediting evidence 

favorable to that party if reasonable jurors could, and disregarding contrary evidence unless 

reasonable jurors could not.” Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 

844, 848 (Tex. 2009).

CALENTINE’S QUIET TITLE CLAIM

Montemayor argues the trial court erred by granting Calentine’s traditional motion for 

summary judgment on her quiet title claim because his affidavit raised a fact issue that when he 

sold and conveyed the property to himself, he had the authority to do so. A plaintiff in a suit to 

quiet title has the burden to prove, among other elements, that the defendant’s claim to the property 

is invalid or unenforceable. Vernon v. Perrien, 390 S.W.3d 47, 61 (Tex. App.—El Paso 2012, pet. 

denied). A personal representative of an estate may not purchase “any estate property sold by the 

representative or any co-representative of the estate.” TEX. EST.CODE ANN § 356.651 (West 2014). 

There is an exception for when the will authorizes such a sale. Id. § 356.652. Otherwise, a trial 

court may declare such a sale void. Id. § 356.655. It is undisputed that Montemayor was the 

independent executor of Luisa’s estate when he deeded the property to himself. The will did not 
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authorize Montemayor to purchase the estate property. Therefore, Calentine established 

Montemayor’s claim to the property was invalid or unenforceable. See Rhone-Poulenc, Inc., 997 

S.W.2d at 223. Because Calentine conclusively established her entitlement to judgment as a matter 

of law on her quiet title claim, the trial court did not err by granting her summary judgment and 

declaring the deed void. 

CALENTINE’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

The trial court granted Calentine’s no-evidence motion for summary judgment regarding 

Montemayor’s affirmative defense of “sell, manage, and dispose.” In the judgment, the trial court 

determined Montemayor had “not pled any counterclaim that will preclude summary judgment in 

this case. The Court finds that [Montemayor] has asserted an affirmative defense for selling, 

managing and disposing of property . . . however, the law does not recognize selling, managing, 

and disposing of property as an affirmative defense to [Calentine]’s claim.” Because Montemayor 

does not provide any argument as to how the act of “sell, manage, and dispose” is an affirmative 

defense to a suit to quiet title, that part of the judgment must be affirmed. See Krueger v. Atascosa 

County, 155 S.W.3d 614, 621 (Tex. App.—San Antonio 2004, no pet.) (holding we must affirm 

when an appellant fails to challenge the ground for the motion). 

Montemayor asserts his pleadings gave “fair notice that he has a counter claim, in that the 

property was sold under the power and authority of Luisa’s will and appointment thereof by the 

probate court.” Montemayor’s live pleading expressly alleges the act of selling, managing, and 

disposing of property as an affirmative defense. Furthermore, Montemayor does not cite any 

relevant authority to support his contention that the act of “sell, manage, and dispose” is a 

cognizable counter-claim. See TEX. R. APP. P. 38.1(i) (requiring an appellant’s brief to “contain a 

clear and concise argument for the contentions made, with appropriate citations to authorities and 

to the record”). 
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CONCLUSION

We affirm the trial court’s judgment. 

Luz Elena D. Chapa, Justice