COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

U PCURVE ENERGY PARTNERS, LLC

,

Appellant,

v.

KURT MUENCH, LANCE MUENCH,

MARK MUENCH, FRANK W. FOUTS IV

, and SHEILA STIBOLT

,

Appellee s. §

§

§

§

§

§ No. 08

- 21

- 00156

- CV

Appeal from the

143rd Judicial D istrict Court

of Reeves County, Texas

(TC# 19-09-23159- CVR )

O P I N I O N

This appeal of a final summary judgment challenges the characterization of property

interests conveyed to three grantees

, Shirley Muench, Richard Werner, and Geraldine Fox , via a

1981 deed signed by their mother, Dorothy M. Werner

. The underlying suit for trespass to try title

,

or alternatively

, seeking a declaratory judgment, involves heirs of the original grantees

, heirs of

their spouses, and a successor in interest to certain of those heirs

. On multiple cross motions for

summary judgment, the trial court granted the motion of Appellees Kurt W. Muench, Lance A.

Muench, and Mark A. Muench (collectively, the Muenches)

, characterizing the grantees ’ acquired

property interests as separate property; while denying the cross motion s of Appellant UpCurve

Energy Partners, LLC (UpCurve), and non-appealing defendants Billie Carol Robinson Reed,

James Robinson, Robert Robinson (the Robinson defendants), and Donna Ducharme , on the2 characterization issue

. Additionally, the trial court granted UpCurve ’ s motion, as well as a like

motion of the Robinson defendants and Donna Ducharme, claiming the original grantees acquired

title as joint tenants without right of survivorship ; and

, related to that determination, the trial court

denied the cross motion o f Appellees Sheila D. Stibolt and Frank W. Fouts IV

, who argued the

original grantees ’ had acquired their joint tenancy interest with right s of survivorship

. UpCurve

solely challenges on appeal the trial court ’ s grant of the Muenches motion

, and the court ’ s denial

of its own motion addressing the characterization of the original grantees ’ interests

. We reverse in

part, and affirm in part, and remand to the trial court for further proceedings.



### I. B ACKGROUND

F o r c ontext

, we begin with a brief factual and procedural recitation from our record

. 1

A. The underlying lawsuit

O n September 6, 2019

, the Muenches filed an original petition against multiple defendants

alleging a cause of action for trespass to try title, and alternatively, a claim for a declaratory

judgment to quiet title

. The y alleged the y were owners of certain undivided mineral interests

previously owned by Dorothy M. Werner

, located in and under a 160

- acre tract in Reeves County

,

Texas (the Property)

. With the petition, the Muenches attached a copy of a 1981 deed signed by

Dorothy

, as grantor, wherein she convey ed all her property interest to her three children, Shirley

Muench

, Richard Werner

, and Geraldine F ox (the original grantees)

, “ not in T enancy in C ommon

but in J oint T enancy

. ” The deed recitals identified Dorothy as a widow who had not remarried

,

and it further provided the following granting clause:

[F]or and in consideration of Ten and 00/100 Dollars and other good and valuable

considerations [to Dorothy] in hand paid by [grantees], [has] granted, sold and

conveyed, AND BY THESE PRESENTS do grant, sell and convey unto the said

[grantees], not in Tenancy in Common but in Joint Tenancy, all that certain property

located in the County of Reeves and State of Texas described as follows:

1 Because this case includes several parties with the same surname, we use first names

, from time to time

, for brevity

.3 The Southeast one

- fourth ( SE 1⁄4) of Section 28, Block C

- 8, Public School Land

Survey

, Reeves County, Texas

, containing 160 acres of land.

The 1981 deed was signed by Dorothy on July 31, 1981. 2

The Muenches each claim ownership interest s from all three original grantees either based

on the intestacy statute or based on a n inter vivo conveyance from Geraldine Fox in July 2003

.

The ir original petition named six individual defendant s, whom we sort into three groups based on

the source of their claim : (1) UpCurve is named as a party claiming an interest through subsequent

conveyances from William Robinson

, an heir of a grantee spouse, and James Fox

, spouse of

grantee Geraldine F ox ; (2) the Robinson defendants are named as claiming ownership interests as

heirs of Geraldine M. Werner, the surviving spouse of grantee Richard A. Werner ; and (3) Sheila

Stibolt and Frank W. Fouts IV are named as claiming an ownership interests based on a 2003

c onveyance by Geraldine F ox

. The Muenches contend ed the named defendants were all

wrongfully asserting and withholding possession from them of certain undivided mineral interests

in the subject Property

. Alternatively, the y sought a declaration quieting title to the mineral interest

such as to establish that

, by means of the 1981 deed, Dorothy gift ed her interest in the Property to

her three children

, and this conveyance resulted in the ir acquisition of title as separate property

,

not community property

. And lastly, the Muenches further requested the district court enter a

declaration designating the percentage of ownership of each party

, to include p laintiff s and

defendant s

.

All t he several d efendants filed general denials against the Muenches claims

, while

U pCurve additionally included with its denial a plea of not guilty to the trespass to try title claim

,

2 Although the 1981 deed is titled, “ QUIT CLAIM DEED

, ” it further states

, in substance

, that Dorothy M. Werner

binds herself, her heirs, executors, and administrators, to warrant and forever defend, all and singular, “ the said

premises unto [ the named grantees ]

, their heirs and assigns, ” against every person whomsoever, lawfully claims the

same or any part thereof.4 and to the extent necessary, a like plea to the claims of Fouts and Stibolt

. The Muenches later filed

a first amended petition adding Donna Ducharme as a defendant

, claiming that an unnamed

Robinson heir had conveyed his interest to her

. UpCurve similarly amended its answer to include

assertion s of the parol evidence rule and estoppel by deed.

B. The parties ’ joint stipulation

After the initial flurry of filings, the parties filed a joint stipulation on March 16, 2020.

Signed by their counsel, the joint stipulation asserted t he parties agreed that Dorothy M. Werner

is the common source of title to the Property at issue

, and she conveyed her interest via that certain

deed dated July 31, 1981

. The stipulation further stated the parties ’ agreed that the grantees of the

1981 deed were Dorothy ’ s children

, Shirley A. Muench, Richard A. Werner, and Geraldine Fox

.

Additionally, without prejudice to the parties ’ respective contentions, the y stipulated that the issues

before the trial court include: (1) whether the grantees of the 1981 deed took the P roperty as

community property with their then living spouses or as their sole and separate property, and (2) a

right of survivorship attached to grantees ’ joint tenancy interests. The joint stipulation further

explains its purpose

, that is, the parties intended to confirm the common source of title, state how

title passed under competing theories of the parties, and to identify the ownership percentages

resulting from each theory. To that end, t he joint stipulation contained three attachments identified

by the letter s A, B, and C, each illustrating the resulting effect of the competing theor ies of

ownership.

Attachment A of the joint stipulation presented the Muenches theory asserting the original

grantees acquired their i nterests as separate property

. They contend ed that grantee Shirley Muench

died intestate in 1998 and all her interest in the Property passed to her three sons, Kurt, Lance, and

Mark Muench. They further contend ed that although grantee Richard had been married when he

acquired his share, the couple never had any children. Upon Richard ’ s passing, the Muenches5 contend ed that half of his separate property passed to his wife

, Geraldine M. Werner, and the other

half passed to his siblings or other descendants

— to include his sister and fellow grantee

, Geraldine

Fox, and to the three sons of his sister Shirley Muench

, Kurt, Lance

, and Mark. The Muenches

further contend ed that Geraldine, the last surviving grantee, deeded her interest to Stibolt, Fouts,

and the Muenches in equal shares by a deed dated July 8, 2003, which she signed and recorded

before her death. The y further contended that Richard’s one

- half intestate share passed to his wife,

and she in turn passed it to her heirs, Billie, James, William, Robert, and Jerry Robinson

. The

Mu e nches further contend ed that William Robinson deeded his interest to UpCurve ; and Jerry

Robinson deeded his interest to defendant Ducharme. When all is said and done, the Muenches

assert ed that under the separate property characterization theory

, th e property interests are owned

as follows:

Theory A

– Separate Property Characterization

Kurt W. Muench

Received interest through inheritance of

Shirley’s interest, Richard’s interest, and as

grantees of Geraldine’s interest 22.222%

Lance A. Muench 22.222%

Mark A. Muench 22.222%

Sheila Diane Stibolt Received interest as grantees of Geraldine’s

interest 8.333%

Frank W. Fouts IV 8.333%

UpCurve Received its interest as grantee of William

Robinson who in turn received his interest as

an heir of Richard’s wife 3.333%

Billie Carol Robinson

Reed

Received interest as heir of Richard’s wife 3.333%

James Robinson 3.333%

Robert Robinson 3.333%

Donna Ducharme Received interest as grantee of Jerry Robinson

who received interest as heir of Richard’s wife 3.333%

≈100%6 Attachment B of the joint stipulation present ed a theory asserted by UpCurve

, the

Robinsons, and Donna Ducharme. This theory assert ed that grantees received the P roperty from

Dorothy as community property

. These parties stipulated that Shirley died intestate as of March

1998; while her spouse died intestate as of December 2014. They further contend ed that Shirley ’ s

community interest and her spouse ’ s community interest all passed to their three sons, Kurt, Lance,

and Mark Muench

. As for Richard ’ s interest, the parties contend ed that he was married to

Geraldine M. Werner at the time of the 1981 deed. No children were born to or adopted during

their marriage. Richard died intestate in November 1999

, without children. Thus, his community

property interest passed to his wife

, Geraldine M. Werner

. She never had any children, nor was

she married at the time of her death. When Geraldine died intestate in 2006, the parties contend ed

her interest passed to heirs Billie Carol Robinson Reed

, James Robinson

, William Robinson

,

Robert Rob inson, and Jerry Robinson

. William Robinson later conveyed his interest to UpCurve

via a recorded deed ; and similarly, Jerry Robinson deeded his interest to Donna Ducharme by a

recorded warranty deed

. As to the final grantee, t he se parties further contend ed that Geraldine

Fox ’ s interest was also received as community property and her husband

, James E. Fox, Sr., shared

in owning the community interest. No children were born to or adopted during the marriage of

Geraldine Fox and James E. Fox, Sr. But UpCurve, the Robinsons

, and Ducharme

, together

contend ed that James E. Fox ’ s share of the community property passed to his children by a prior

marriage, Ronald Allen Fox, James E. Fox, Jr., Jeffrey Charles Fox, and Larry John Fox. Each of

the four Fox children then deeded their interest to UpCurve by recorded deed

. As for Geraldine

Fox ’ s community interest share

, she conveyed her interest to Sheila Diane Stibolt, Frank W.

Fouts IV

, and to the three Muenches

, Kurt, Lance, and Mark, all in equal shares. As a result of

these events, UpCurve, the Robinsons, and Donna Ducharme contend ed the breakdown of

ownership interests under the community property theory was as follows:7 Theory B

– Community Property Characterization

Kurt W. Muench

Received interest through inheritance of

Shirley’s interest and as grantees of

Geraldine’s interest 14.444%

Lance A. Muench 14.444%

Mark A. Muench 14.444%

Sheila Diane Stibolt Received interest as grantees of Geraldine’s

interest 3 .333%

Frank W. Fouts IV 3 .333%

UpCurve Received its interest as grantee of William

Robinson (heir of Richard’s wife) and as

grantee of Geraldine’s husband’s heirs 23 .333%

Billie Carol Robinson

Reed

Received interest as heir of Richard’s wife 6

. 666 %

James Robinson 6

. 666 %

Robert Robinson 6

. 666 %

Donna Ducharme Received interest as grantee of Jerry Robinson

who received interest as heir of Richard’s wife 6

. 666 %

≈100%

Attachment C presented a theory advanced by Stibolt and Fouts, asserting a right of

survivorship was included in the original deed conveyance. As to the three grantees of the 1981

deed, Stibolt and Fouts contended that Shirley Muench died first, passing all her interest to Richard

A. Werner and Geraldine Fox. They next contend ed that Richard died second, passing all his

interest to Geraldine Fox. Geraldine Fox then conveyed her interest to Stibolt, Fouts, and the three

Muenches, Kurt, Lance, and Mark, in equal shares. As a result, Stibolt and Fouts contended they

each owned an equal 20% interest in the Property, with UpCurve and the Robinson defendants

having no interest.

Because Stibolt and Fouts did not file a notice of appeal, we have no jurisdiction over their

claim s of ownership as joint tenants with the right of survivorship

. See T EX

. R. A PP

. P. 25.1(c)

.8 Nonetheless, Stibolt and Fouts are included as appellees as no party contests that they are entitled

to recover a certain share of interest in the Property

, either under theory A (separate property) or

under theory B (community property).

C. The s ummary judgment motions

On March 16, 2020

, t he Muenches filed a motion for summary judgment on its trespass to

try title claim asserting there was no genuine issue of material fact that the conveyance from

Dorothy to her children was made as a gift ; and therefore

, the property was acquired by each

grantee as separate property

. They argued that “ so long as [p]laintiffs prove that Dorothy Werner ’ s

children were the ‘ natural object of [her] boun t y, ’ the general community property presumption is

‘ displaced ’ by the presumption that the 1981 [d]eed conveyed a gift. ” As evidence, t hey attached

the joint stipulation (Exhibit 1)

, a correction quit claim deed dated April 3, 2017 (Exhibit 2)

, and

title history documents (Exhibit 3)

. The correction quit claim deed was executed by Michael

Lantry

, on April 3, 2017

. The deed indicated i t corrected the original conveyance of July 31, 1981,

by grantor Dorothy M. Werner. Describing the error being corrected

, the deed indicated the words

“ with rights of survivorship ” were inadvertently excluded from the original conveyance. The

correction deed stated that intent to include right of survivorship language was clear from the

words “ not in Tenancy in Common but in Joint Tenancy. ” As a basis for personal knowledge to

correct the original conveyance

, Lantry described that he was the drafting attorney who

represent ed Dorothy at the time of the original conveyance and he “ knows what Grantor intended

. ”

On April 27, 2020, UpCurve filed a combined response to the Muenches motion for

summary judgment and a cross motion for traditional summary judgment. UpCurve argued the

1981 deed lacked any language providing for a right of survivorship

, or any indication of a gift.

To its motion, UpCurve attached the 1981 deed, multiple heirship documents, and the several

deed s executed by the Fox heir s convey ing an interest in the Property to UpCurve

, as well as the9 deed from Jerry Robinson to Donna J. Ducharme. UpCurve moved for the trial court to deny the

Muenches motion

, to grant its own motion, and to enter a take nothing summary judgment against

the Muenches, as well as against Fouts and Stibolt. In the alternative, UpCurve requested the trial

court to issue a partial summary judgment in its favor, finding the Property was conveyed as

community property

, and that the 1981 deed did not create a right of survivorship.

The Robinson and Ducharme defendants also filed a motion for summary judgment

adopting UpCurve ’ s arguments. After holding a hearing on the parties ’ various motions and

responses

, the trial court took the matters under advisement.

D. Trial court ’ s judgment

On July 23, 2021, t he trial court issued a letter ruling indicating it had determined that the

transfer of the 160 acres in Reeves County from Dorothy to the grantees was a gift

, rather than a

sale. C onsequently, each grantee acquired their interest as their separate property

. The trial court

further found the 1981 deed did not explicitly include survivorship language ; and therefore, it did

not transfer the Property with rights of survivorship. Based on these rulings, the trial court granted

the Muenches ’ traditional motion for summary judgment ; and denied defendants ’ motions and

cross motions for summary judgment.

On August 11, 2021, t he trial court signed a Final Summary Judgment. First, t he trial court

grant ed the Muenches motion as to the separate property issue

, and otherwise it found the motion

was denied. Second, a s to UpCurve ’ s and the Robinson and Ducharme defendants ’ motion s

, the

trial court grant ed their motions as to the survivorship issue

, and otherwise the motion was denied

.

Third, as to Frank W. Fouts IV, and Sheil a D. Stibolt, the trial court denie d their motion. And

finally, as to the ownership of the property interests, the trial court declare d that each plaintiff

possesses a 22.222% undivided interest in the Property, defendant UpCurve possesses a 3.333%

undivided interest in the Property, defendants Billie Carol Robinson Reed, James Robinson,10 Robert Robinson, and Donna J. Ducharme each possess a 3.333% undivided interest in the

Property, and defendants Sheila D. Stibolt and Frank W. Fouts IV, each possess an 8.333%

undivided interest in the Property.

UpCurve timely filed its appeal. 3



### II. D ISCUSSION

In its sole issue, Up Curve generally asserts the trial court erred in issuing a summary

judgment finding the Property is owned in the percentages stated in the final summary judgment. 4

But it also more specifically contends within this issue that the trial court erred in granting the

Mu e nch es motion for summary judgment on the issue of whether the original grantees ’ interest s

w ere community property or separate pro perty

, and that the trial court further erred in denying

UpCurve ’ s cross motion on the same issue

.

A. Standard of r eview and a pplicable law

1. Summary judgments

We review a trial court ’ s summary judgment de novo. Lujan v. Navistar, Inc.

, 555 S.W.3d

79, 84 (Tex. 2018)

. In a motion for traditional summary judgment, the movant shoulders the burden

of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law.

T EX

. R. C IV

. P

. 166a(c) ; Nassar v. Liberty Mut. Fire Ins. Co

., 508 S.W.3d 254, 257 (Tex. 2017)

3 UpCurve ’ s notice of appeal indicated it was not appealing the trial court ’ s ruling as to the survivorship issue. Stibolt

and Fouts did file a pro se appellee brief whereby they discuss the right of survivorship issue. They present no

argument as to the community or separate property issue. Stibolt and Fouts acknowledge t hey did not file a notice of

appeal but request this court to reverse the trial court ’ s decision on the right of survivorship issue. In the alternative,

they request this court to remand to the trial court for a trial by jury. “ A party who seeks to alter the trial court ’ s

judgment or other appealable order must file a notice of appeal. ” T EX

. R. A PP

. P

. 25.1(c) ; see Wagner & Brown, Ltd.

v. Horwood

, 58 S.W.3d 732, 737 (Tex. 2001)

. Accordingly

, we “ may not grant a party who does not file a notice of

appeal more favorable relief than did the trial court except for just cause

. ” T EX

. R. A PP

. P

. 25.1(c)

. Because Stibolt

and Fouts did not perfect their own appeal, we have no jurisdiction to consider the right of survivorship issue described

in this footnote. See id. Accordingly, w e express no opinion on the merits of their claim s or argument s

.

4 In presenting its issue on appeal, UpCurve cites to Malooly Bros. , Inc. v. Napier

, 461 S.W.2d 119 (Tex. 1970)

(determining that a general point of error is sufficient to allow argument as to all possible grounds upon which

summary judgment should have been denied).11 (per curiam)

. When both parties move for summary judgment on the same issue and the trial court

grants one motion but denies the other, the reviewing court should review the evidence presented

by both sides, determine all questions presented, and render the judgment the trial court should

have rendered. Tex as Workers ’ Comp. Comm ’ n v. Patient Advocates of Tex as

, 136 S.W.3d 643,

648 (Tex. 2004)

.

In reviewing the trial court ’ s grant or denial of a summary judgment, we view the evidence

in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors

could do so, and disregarding contrary evidence unless reasonable jurors could not. Zive v.

Sandberg

, 644 S.W.3d 169, 173 (Tex. 2022) ; Merriman v. XTO Energy, Inc.

, 407 S.W.3d 244,

248 (Tex. 2013) ; Valence Operating Co. v. Dorsett

, 164 S.W.3d 656, 661 (Tex. 2005)

. Either party

can rely on evidence attached to a motion or response

— that is, the movant can rely on evidence

filed by the nonmovant or vice versa. See Wilson v. Burford

, 904 S.W.2d 628, 629 (Tex. 1995)

(per curiam). Evidence is conclusive only if reasonable people could not differ in their conclusions.

City of Keller v. Wilson

, 168 S.W.3d 802, 816 (Tex. 2005)

. Once a movant initially establishes a

right to summary judgment on issues presented in the motion, the burden then shifts to the

nonmovant to present issues or evidence to preclude entitlement to a summary judgment. City of

Houston v. Clear Creek Basin Auth.

, 589 S.W.2d 671, 678

– 79 (Tex. 1979)

. If the movant fails to

meet this burden, the burden does not shift to the nonmovant and the nonmovant need not respond

or present any evidence at all. Chavez v. Kan sas City S. Ry. Co.

, 520 S.W.3d 898, 899

– 900

(Tex. 2017) (per curiam )

.

2. Trespass to try title

Under Texas law, competing claims for superior title in a dispute concerning who owns

real property must be brought as a trespass to try title action. See T EX

. P ROP

. C ODE A NN

. §

22.001(a) (providing, “ trespass to try title action is the method of determining title to lands,12 tenements, or other real property ” ). Such a cause of action adjudicates title or the right of

possession of real property. Rogers v. Ricane Enterprises, Inc

., 884 S.W.2d 763, 768 (Tex. 1994).

Actions under this statute “ involve detailed pleading and proof requirements. ” Lance v. Robinson

,

543 S.W.3d 723, 735 (Tex. 2018). “ To prevail in a trespass

- to

- try

- title action, a plaintiff must

usually (1) prove a regular chain of conveyances from the sovereign, (2) establish superior title

out of a common source, (3) prove title by limitations, or (4) prove title by prior possession coupled

with pro of that possession was not abandoned. ” Id. This statutory cause of action applies “ when

the claimant is seeking to establish or obtain the claimant ’ s ownership or possessory right in the

land at issue. ” Id

. at 736. It has long been established that the “ plaintiff in a trespass to try title

action must allege and prove the right to present possession of the land. ” Id

. (citing City of Mission

v. Popplewell

, 294 S.W.2d 712, 714 (Tex. 1956). Typically, the trespass

- to

- try

- title statute is used

“ ‘ to clear problems in chains of title or to recover possession of land unlawfully withheld from a

rightful owner, ’ and the plaintiff in such an action must ‘ establish superior title ’ to the property. ”

Id

. Ultimately, a plaintiff asserting this cause of action must recover upon the strength of his or her

own title, not on the weakness of the title of his or her adversary. Id .; see also Vernon v. Perrien

,

390 S.W.3d 47, 60 (Tex. App.

— El Paso 2012, pet. denied).

B. Analysis

On appeal, UpCurve challenges both the grant of the Muenches motion for summary

judgment and the denial of its cross motion for summary judgment. We begin with the motion the

trial court granted before we turn to the cross motion it denied

. The Muenches motion sought a

summary judgment on their trespass

- to

- try

- title claim

. Based on the joint stipulation, t he y asserted

the parties had agree d that claims of title to the disputed property ar o se out of a common source

—

that is

, from grantor Dorothy M. Werner conveying the Property to the three grantees

. The question13 of disputed fact

, they assert ed

, narrowed to whose title was superior as to the respective interest

size

.

In the context of this appeal, the summary judgment in favor of the Muenches can be

sustained only if the y conclusively established each element of t heir claim of superior title as to

their ownership interest

. See T EX

. R. C IV

. P. 166a(c) ; MMP, Ltd. v. Jones

, 710 S.W.2d 59, 60

(Tex. 1986) (per curiam)

. Because the arguments boil down to whether the property was conveyed

to grantees as separate property or as community property

, our analysis of the grant of the

Muenches ’ motion for summary judgment comes down to whether the y conclusively established

that Dorothy conveyed her interest to each grantee as a gift such that each acquired their respective

ownership as separate property

.

The Muenches assert ed they met their summary judgment burden based on t he evidence

produced and by reliance on a separate property presumption displacing a presumption of

community property. Initially, t he Muenches recognize d the community property presumption

applie d because no party dispute d that each grantee was married when each acquired the ir

respective share of the Property. See T EX

. F AM

. C ODE A NN

. § 3.003(a) (stating that all property

possessed by either spouse during marriage is initially presumed to be community property).

However, the y further assert ed that a separate property presumption displaced the community

property presumption based on the stipulated evidence establishing that each grantee was a child

of Dorothy, and thus, a natural object of her bounty. See Amador v. Berrospe

, 961 S.W.2d 205,

207 (Tex. App.

— Houston [1st Dist.] 1996, pet. denied) ; see also Kyles v. Kyles

, 832 S.W.2d 194,

196 (Tex. App.

— Beaumont 1992, no writ) ( “ As a general rule, property conveyed to one spouse

during a marriage is presumed to be community property unless that presumption be displaced by

a different or contrary presumption that would show that the property so conveyed was in fact,

separate property. ” ) Although t his separate property presumption is rebuttable

, the Muenches14 contend ed that UpCurve failed to rebut the presumption by proving Dorothy ’ s lack of donative

intent by clear and convincing evidence. Kyles

, 832 S.W.2d at 197

.

On appeal, however, UpCurve argues the community presumption remained intact,

asserting that several courts have refused to apply the parent

- gift presumption when determining

the separate or community nature of property. S ee Pearson v. Fillingim

, 332 S.W.3d 361, 364

(Tex. 2011) (per curiam) ( after a bench trial on a petition to clarify a decree of divorce, held that

husband failed to prove that mineral rights were gifts

, as there is no presumption of separate

property) ; Matter of the Marriage of Campa

, No. 06

- 21

- 00007

- CV, 2021 WL 2964274, at *3

(Tex. App.

— Texarkana July 15, 2021, pet. denied) (mem. op.) (finding no gift presumption

applied in trial on divorce petition) ; Oliver v. Oliver

, No. 0 9

- 18

- 00208

- CV

, 2020 WL 1173704

, at

*10

– 11 (Tex. App.

— Beaumont Mar. 12, 2020, no pet.) (mem. op.) (finding no di vestiture of

separate property after a bench trial when a party has not met the burden to overcome the

presumption of community property)

. UpCurve contends it was the Muenches who failed to

displace the community property presumption with clear and convincing evidence esta blishing

Dorothy ’ s donative intent in support of a gift

.

Given this battle over evidentiary presumptions arising in a summary judgment proceeding,

we must remain cautious in determin ing not whether a trial burden was met but whether

entitlement to summary judgment was established as a matter of law

. Texas law recognizes

summary judgment to be a harsh remedy requiring strict construction. Garcia v. John Hancock

Variable Life Ins. Co.

, 859 S.W.2d 427, 435 (Tex. App.

— San Antonio 1993, writ denied)

. The

reason for this strict standard is because a summary proceeding is “ not a conventional trial, but an

exception to the usual and traditional formal procedure whereby witnesses are heard in open court

and documentary proof is offered and received into evidence. ” Id. As our highest court recently

admonished regarding a summary judgment proceeding

, “ presumptions and burden of proof for15 an ordinary or conventional trial are immaterial to the burden that a movant of summary judgment

must bear. ” Draughon v. Johnson

, 631 S.W.3d 81, 87

– 88 (Tex. 2021)

.

1. The Muenches as summary judgment movant

The Mu enches motion for summary judgment is titled, “ Plaintiffs ’ Motion for Summary

Judgment

. ” The opening paragraph next describes the motion as a “ Traditional and No

- Evidence

Motion for Summary Judgment

. ” However, when read as a whole, the motion in substance only

mentions it seeks a traditional summary judgment pursuant to T EX

. R. C IV

. P. 166a(c)

. Rather than

assert any no

- evidence ground within the body

, the motion merely contends “ Plaintiffs have met

their burden here, ” to prevail on their trespass to try title suit. Lastly, the motion also recites that

plaintiffs rely upon three items of evidence in support of their motion

, i.e., the joint stipulation, a

correction quit claim deed, and title history documents, but further assert by their argument that

Texas law presumes the 1981 deed was a gift and thus separate property. Because a trial court

cannot grant summary judgment on grounds that were not presented

, we construe the Muenches

motion as one brought as a traditional motion for summary judgment under T EX

. R. C IV

. P

. 166a(c)

,

not as a combined motion or no

- evidence motion for summary judgment under T EX

. R. C IV

. P

.

166a(i)

. See Nall v. Plunkett

, 404 S.W.3d 552, 555 (Tex. 2013) ( “ Issues not expressly presented

to the trial court by written motion, answer or other response shall not be considered on appeal as

grounds for reversal. ” ).

I n support of their motion

, th e Muenches cite and brief numerous cases which show that

several courts have applied the parent

- child gift presumption while further considering whether

this presumption was overcome by clear and convincing evidence. See Jennings v. Piazza

, No. 12

-

18

- 00253

- CV, 2019 WL 2710276, at *1 (Tex. App.

— Tyler June 28, 2019, no pet.) (mem. op.)

(applying the parent

- child gift presumption and ultimately finding the separate property

presumption was not overcome by clear and convincing evidence of lack of donative in t ent) ;16 Hallum v. Hallum

, No. 01

- 09

- 00095

- CV, 2010 WL 4910232, at *4 (Tex. App.

— Houston

[1 st Dist.] Dec. 2, 2010, no pet.) (mem. op.) ( same); Blair v. Blair

, No. 14

- 97

- 00832

- CV, 1999 WL

649082, at *4 (Tex. App.

— Houston [14th Dist.] Aug. 26, 1999, no pet. ) (stating that when property

is deeded from a parent to a child it is presumed that a gift was intended which can be rebutted by

clear and convincing evidence ) ; Kyles

, 832 S.W.2d at 196 ( applying the separate property

presumption to a dissolution of marriage case to determine the characterization of the property )

.

Based on the evidence attached to their motion and their argument s

, t he Muenches assert

they met their evidentiary burden and were entitled to a summary judgment because Texas courts

generally determine a separate property presumption applies when property is conveyed as a gift

from a parent to a child. See T EX

. F AM

. C ODE A NN

. § 3.001(2) ( “ A spouse ’ s separate property

consists of

. . . the property acquired by the spouse during marriage by gift

. . . . ” ). Although they

acknowledge that Texas law generally presumes that property possessed by a spouse during

marriage is presumed to be community property, see T EX

. F AM

. C ODE A NN

. § 3.003(a)

, t hey argue d

in their motion that “ the general community property presumption is displaced if a party

establishes the predicate facts giving rise to a separate property presumption. ” Hallum

, 2010 WL

49102 32, at *4

. In support of summary judgment, they contended the joint stipulation

acknowledged the grantees of the 1981 deed were the children of grantor Dorothy. And b ecause

the Muenches showed the existence of this basic fact establishing a parent

- child relationship

between the grantor and grantees of the 1981 deed

, t he y further contended they proved the ultimate

fact that the conveyance by Dorothy was a gift, and therefore the separate property of the grantees

based on the application of the separate property presumption

. However, we observe the cases

cited and relied upon

— all of which review the application of both the community and separate

property presumptions and whether each was rebutted

— i nvolved a sufficiency review of evidence17 following a trial on the merits. N o ne of the cases cited by the Muenches involve the grant of a

traditional motion for summary judgment.

As the Supreme Court of Texas has instructed, a presumption at trial operates to establish

a fact until rebutted, but not in summary judgment proceedings. Chavez

, 520 S.W.3d at 89 9

. “ The

presumptions and burden of proof for an ordinary or conventional trial

. . . are immaterial to the

burden that a movant for summary judgment must bear. ” I d. at 900 ( quoting Missouri

- Kansas

Tex as R. R. Co. v. City of Dallas

, 623 S.W.2d 296, 298 (Tex. 1981) ). Without question, this case

presents as a summary judgment proceeding where burdens of proof differ from those at trial. To

obtain summary judgment, the “ movant must establish that there is no genuine issue of material

fact so that the movant is entitled to judgment as a matter of law. ” Id

. In so doing, “ a summary

judgment movant may not use a presumption to shift to the non

- movant the burden of raising a

fact issue of rebuttal. ” Chavez

, 520 S.W.3d at 900

. Affording a presumption to a traditional

summary judgment movant “ would inappropriately displace its heightened summary judgment

burden with the lesser burden of proof it would bear at trial. ” Green v. State

, No. 02

- 21

- 00013

-

CV, 2021 WL 5747148, at *5 (Tex. App.

— Fort Worth Dec. 2, 2021, pet. granted) (mem. op.).

Thus, in seeking a summary judgment, the Muenches were required to establish

affirmatively that there was no genuine issue of material fact that the Property was conveyed as a

gift

— that is, conclusively establishing Dorothy ’ s intent to convey the p roperty as separate property

to each grantee. Here, t he Muenches did not meet this burden

. Rather, even when we rely on the

evidence produced by all parties, they only produced evidence of the 1981 deed conveying

property interests to grantees and the joint stipulation establishing grantees were Dorothy ’ s

children. As movants of their own cause of action for trespass to try title, the Muenches shouldered

the movant ’ s burden to produce evidence conclusively establishing the Property was conveyed to

grantees as a gift. Without the application of a separate property presumption, there remains a n18 evidentiary gap as to whether Dorothy intended to gift the Property to each grantee as no deed

language or other evidence expresses any such donative intent. Indeed, the granting language of

the 1981 deed states that for “ good and valuable consideration to me in hand paid by [grantees]

, ”

the Property was “ granted, sold and conveyed

, ” to grantees, Shirley A. Muench

, Richard A.

Werner

, and Geraldine F ox

.

On this record, w e conclude the Muenches did not meet their summary judgment burden

to conclusive ly establish a conveyance by gift such as to characterize the ownership of the

grantees ’ interests as separate property

. See T EX

. R. C IV

. P. 166a(c)

. As a result, the Muenches did

not conclusively establish s uperior title as a matter of law. To the extent the trial court granted a

final summary judgment in favor of the Muenches on the property characterization issue

, we

conclude it did so in error. Relatedly

, w e further conclude the trial court erred in issuing a summary

judgment declaring the Property is owned in the percentages stated in the final summary judgment.

To this extent, w e sustain in part UpCurve ’ s sole issue.

2. UpCurve as summary judgment movant

By a cross motion filed in response to the Muenches motion, UpCurve also sought a

traditional summary judgment pursuant to T EX

. R. C IV

. P. 166a(c)

. On appeal, UpCurve also

challenges the trial court ’ s denial of it s own motion for summary judgment

. To meet its movant ’ s

burden, UpCurve needed to disprove at least one element of the Muenches ’ cause of action for

trespass to try title. Cathey v. Booth

, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam) ( A defendant

seeking a traditional summary judgment must either disprove at least one element of each of the

plaintiff ’ s causes of action or plead and conclusively establish each essential element of an

affirmative defense.) A matter is conclusively established if reasonable people could not differ as

to the conclusion to be drawn from the evidence. Wilson

, 168 S.W.3d at 816

. UpCurve argued the

Muenches, Fouts, and Stibolt, shouldered the burden to prove superior title to the interests they19 claim over its interest

, and if th ose parties fail ed to meet th eir burden, then judgment should be

entered for UpCurve.

U pCurve also based its entitlement to summary judgment on the characterization of the

P roperty conveyed by the 1981 deed. UpCurve asserted that because the grantees were married at

the time of Dorothy ’ s conveyance, the community property presumption applied. See T EX

. F AM

.

C ODE A NN

. § 3.003(a)

. UpCurve asserts the grantees of the 1981 deed acquired the ir interests as

community property such that their spouses shar ed in the ownership interest. UpCurve asserts the

community property presumption controlled and the Muenches needed to rebut the presumption

by clear and convincing evidence. UpCurve claims the Muenches failed to rebut this presumption

by merely pointing to the fact that the grantees were all Dorothy ’ s children.

Again, because the presumptions and burdens of proof applicable to a conventional trial

are immaterial to the burden a movant shoulders in a summary judgment proceeding, we conclude

that UpCurve similarly failed to meet its summary judgment burden. Chavez

, 520 S.W.3d at 900

.

Although the evidence establish ing that the grantees were married at the time of Dorothy ’ s

conveyance amounts to some evidence, the evidence otherwise failed to conclusively establish the

property was acquired as community property. See City of Keller

, 168 S.W.3d at 816

. For one

thing, the 1981 deed only includes the name of one spouse as to each of the three grantee s

.

Additionally, the deed only includes mention of ten dollars and other good and valuable

consideration without disclosing the nature of the funds. Without relying on the community

property presumption to fill in the evidentiary gap s

, UpCurve also failed to conclusively establish

the grantees purchased the Property as their community property interest. See Chavez

, 520 S.W.3d

at 900

.

On this record, w e conclude that UpCurve failed to meet its burden to conclusively

establish the community property character of the Property interest conveyed to each grantee

. See20 T EX

. R. C IV

. P

. 166a(c)

. To the extent the trial court denied UpCurve ’ s motion for summary

judgment on the characterization issue, we conclude it did not commit error. We overrule the

remaining part of UpCurve’s issue.

In sum, w e overrule in part and sustain in part UpCurve ’ s sole issue.



### III. C ONCLUSION

We affirm in part and remand in part. Because we conclude the Muenches failed to meet

their summary judgment burden, we reverse the trial court ’ s granting of the Muenches ’ motion for

summary judgment. Because we additionally conclude that Upcurve also failed to meet its

summary judgment burden, we affirm the trial court ’ s denial of UpCurve ’ s summary judgment

motion. We remand to the trial court for further proceedings consistent with this decision

.

G INA M. PALAFOX

, Justice

February 21

, 2023

Before Rodriguez

, C.J., Palafox, and Alley

, JJ.

Alley, J. (not participating)