1 

## NO. 12

- 20

- 00125

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

DANA K. MANNEN INDEPENDENT EXECUTRIX OF THE ESTATE OF JACKIE HOLLAND MANNEN , APPE LLANT

V.

JOANIE MANNEN TROUT , APPELLEE §

§

§ APPEAL FROM THE 294TH

JUDICIAL DISTRICT COURT

VAN ZA NDT COUNTY, TEXA S

MEMORANDUM OPINION Dana K. Mannen, Independent Executrix of the Estate of Jackie Holland Mannen, appeals a summary judgment granted in favor of Joanie Mannen Trout t

. She presents one issue on appeal. We affirm.

B ACKGROUND On Februar y 7, 1997, Jackie Holland Mannen execute d his Last Will and Testament , which devised “all of [his] property that [he] may own or control in Van Zandt County, Texas , at the time of [his] death” to his son, Jack Mannen III. Jackie died on May 14, 2009, and his Last
Will and Testament was admitted to probate in Van Zandt County on August 14, 2012. On August 15, 2016, Jack gifted a portion of the p roperty he inherited from his father to
his niece , Troutt, via a gift deed. However, the deed improperly charact erized Jack as the
executor instead of b eneficiary of Jackie’s estate. Troutt discovered the error in June 2019, following Jack’s death that F ebruary. Troutt filed a “Non

- Material Correction Affidavit” in the2 Van Zandt County Real Property records on Aug ust 26, 2019 , in accordance with the Tex as Property Code

. 1 On August 9, 2019, Dana challenged the validity of the 2016 gift deed. She filed s uit seeking a declaratory judgment that the gift deed is void . According to Dana’s petition, the entirety of Jac kie’s estate has not been distributed and Jack never received title to the property he attempted to gift to Troutt. Troutt answered on Septemb er 9 and counterclaimed for breach of fiduciary duty and a de claration that the gift deed is valid

. On December 13, Troutt filed a traditional motion for summary judgment. In her motion, Troutt argued that the property at issue immediately vested in Jack upon Jackie’s death under the
Texas Estates Code. 2 She further argued that the property at issue was Jackie’s s eparate property because he acquired it before marriage. 3 As a result, Troutt urged that Jack held legal title to the property at the time of the gift to Troutt. On December 23, t he trial court iss ued a notice setting the motion for hearing by submission for January 27, 2020. Dana claims she did not receive this
notice. Dana did not file a response to the motion for summary judgment. However , Dana filed a motion for continuance on January 22 . In her motion, Dana urged that she needed to depose
Troutt

. Troutt filed a motion opposing the continuance. The trial court denied the motion for continuance and granted Troutt’s motion in opposition. The trial court also granted Troutt’s
motion for summa ry judgment. This appeal followed.

M OTION FOR C ONTINUAN CE In her sole issue, Mannen urges the trial court denied her due process because it did not afford her an opportunity to depose Trout before granting Trout’s motion. Essentially, Mannen argues the trial court abused its discretion in denying her motion for continuance.
Standard of Review
“A trial court ’ s ruling on a motion fo r continuance is reviewed for a clear abuse of
discretion.” Antolik v. Antolik , No. 06

- 18

- 00096

- CV, 2019 WL 2119646, at *6 (Tex. App.

— Texarkana May 15, 2019, pet. denied) (mem. op. ) (citing Pjetrovic v. Home Depot , 411 S.W.3d 639, 644 (Tex. App.

— Texarkana 2013, no pet.); BMC Software Belgium, N.V. v. Marchand , 83

1 See T EX

. P ROP

. C ODE A NN

. § 5.028 (West 2021 )

.

2 See T EX

. E ST

. C ODE A NN

. § 101.001(a)(1) (West 2020 ).

3 See T EX

. F A M

. C ODE A NN

. § 3.001(1) (West 2006 ).3 S.W.3d 78 9, 800 (Tex. 2002)). A trial court abuses its discretion when it reaches a decision so arbitrary and unreason able as to amount to a clear and prejudicial error of law. Id

. Mar chand , 83 S.W.3d at 800

. “Rule 251 provides that a continuance shall not ‘be granted except for good cause supported by affidavit.’” Hartwell v. Lone Star, PCA , 528 S.W.3d 75 0, 757 (Tex. App.

— Texarkana 2017, pet. dism ’ d) (citing T EX

. R. C IV

. P. 251) ; Esta te of Grogan , 595 S.W.3d 807,
822

– 23 (Tex. App.

— Texarkana 2020, no pet.)

. We consider the following nonexclusive factors when deciding whether a trial court abused its discre tion in denying a motion for continuance seeking additional time to conduct discov ery: the length of time the case has been on file, the
materia lity and purpo se of the discovery sought, and whether the party seeking the continuance has exercised due dilige nce to obtain the discovery sought. Joe v. Two Thirty Nine Joint
Venture , 145 S.W. 3d 150, 161 (Tex. 2004)

. Analysis As described above, Dana fi led suit in A ugust 2019. Trout filed her motion for summary judgment in December. Troutt’s motion for summary judgment urged that she conclusively established her entitlement to declaratory relief. Six exhibits were attached to the motion for summary ju dgment : (1) c ertified copy of Jackie’s Last Will and Testament ; (2) certified copy of Dana’s application to prob ate Jacki e’s will and the corresponding order admitting it; (3) certified copy of the 1986 warranty deed granting the property to Jackie; (4) ce rtified copy of the 2016 gift deed; (5) certified copy of the 2019 non

- material correction affidavit; and (6) ce rtified d eath
certificate of Jack. Even though Dana claims she was not notified of the submission date, she
filed a motion for continuance . Wh ile she claim s the need for additional discovery, namely deposing Troutt, there is no evidence she pursued any d iscovery prior to the summary judgment submission. In fact, the record indicates Dana filed her notice of intent to depose Trout on April 3, 20 20, after the trial court had already ruled on the motion. 4 Furthermore, we disagree with Dana that the discove ry sough t was material to her

response to Troutt’s motion. In her motion for continuance, Dana merely states that she needs to depose Troutt “t o the affidav it and multiple other matters.” Jackie’s Last Will and Testament devised “all property located in Van Zandt County, Texas, belonging to Jackie Holland Mannen” to his son, Jack Mannen III. This will was admitted to probate on August 1, 2012, and the order

4 The motion for continuance was deni ed and the motion for summary judgment was granted on Febru ary 21, 2020

. However, due to an error with e

- file, Dana did not receive notice of those orders on that date. She did

rec eive notice of them on April 3.4 issuing letters testamentary was filed on August 14, 2012. All property that is devised by a will
vests im mediately in the devisees upon the death of the testator. T EX

. E STATES C ODE A NN

. § 101.001(a)(1) (West 2020 ). Consequently, title in the Van Zandt County properties immediately vested in Jack

. As a result, Jack had the legal title to convey the property when he gifted it to Troutt in 2016. The gift deed incorrectly identified Jack as the executor of Jackie’s estate instead of a
benef iciary. Howe ver, Troutt filed a correction affidavit in accordance with the Texas Property
Code. See T EX

. P ROP

. C ODE A NN . § 5.028 (West 2021 ). This evidence establishes, as a matter of law, that Troutt is entitled to a declaration that the gift deed is valid. As a result, we conclude Dana failed to identify “facts essential to justify [her] opposition” to Troutt ’s motion. See Joe , 145 S.W.3d at 162. We cannot conclude that the trial court’s denial of the motion for continuance was so arbitrary and unr easonable as to amount to a clear and prejudicial error of
law. See Marchand , 83 S.W.3d at 800

- 01. We overrule Dana’s sole issue.

D ISPOSITION Having overruled Dana’s sole issue, we affirm the judgment of the trial court.

J AMES T. W ORTHEN Chief Jus tice

Opinion de livered July 30, 2021. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.5 

## COURT OF APPEALS

TWE LFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 30 , 2021

NO. 12

- 20

- 0012 5

- CV

DANA K. MANNEN INDEPENDENT EXECUTRIX OF THE ES TATE OF JACKI E HOLLAND MANNEN , Appellant V. JOANIE MANNEN TROUT , Appellee

Appeal from the 294th District Court
of Van Zan dt County, Texas (Tr.Ct.No. 19

- 00191 ) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED an d DECREED that the judgment of
the cou rt below be in all things affirmed ; all costs of this appeals are adjudged aga inst Appellant, D ANA K. MANNEN , and that this decision be certified to the court below for
observance.
J ames T. Worthen , Chief Justice

. Pane l consisted of Worthen, C.J., Hoyle, J., and Neeley, J.