Moreecy Day, Jr., Wilfred Day, Bailey Day, Johnnie Lee Day,Robert Lee Day, James Earl Day, and Gloria Day Maxfield v. Doris Ruth Jericho, Jerry Lynn Jericho, Gary Wayne Jericho, Deborah Jericho Hadley, Beverly Lynn Jericho Moreland, and Mary Elizabeth Jericho Lang

• Court: Court of Appeals of Texas
• Decided: March 30, 2004
• Docket: 14-03-00785-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 30, 2004

Affirmed and Memorandum Opinion filed March 30, 2004.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-00785-CV

MOREECY DAY, JR., WILFRED DAY, BAILEY DAY,

JOHNNIE LEE DAY, ROBERT LEE DAY, JAMES EARL DAY,

AND GLORIA DAY MAXFIELD, Appellants

V.

DORIS RUTH JERICHO, JERRY LYNN JERICHO, GARY WAYNE JERICHO, DEBORAH JERICHO HADLEY, BEVERLY LYNN JERICHO MORELAND,

AND MARY ELIZABETH JERICHO LANG, Appellees

_________________________________________________

On Appeal from the 85th District Court

Brazos County, Texas

Trial Court Cause No. 47,485-B

M E M O R A N D U M   O P I N I O N

In this real property title dispute, Moreecy Day, Jr., Wilfred Day, Bailey Day, Johnnie Lee Day, Robert Lee Day, James Earl Day, and Gloria Day Maxfield (collectively, the ADays@) appeal a judgment in favor of Doris Ruth Jericho, Jerry Lynn Jericho, Gary Wayne Jericho, Deborah Jericho Hadley, Beverly Lynn Jericho Moreland, and Mary Elizabeth Jericho Lang (collectively, the AJerichos@) on the grounds that the trial court erred by: (1) declaring that the Days have no interest in the property because they did not qualify in a timely manner with section 42 of the Texas Probate Code; and (2) refusing to grant the Days= motion for summary judgment, refuting that the Jerichos had established title to the property by adverse possession.  We affirm.

Background

In 1998, the Grimes County Appraisal District and Brazos County sued the Jerichos for delinquent property taxes dating back to 1978.  Among other things, the Jerichos filed a cross action against the Days for a declaratory judgment that the Jerichos held clear title to the property in question as the wife and heirs of Richard Jericho, who purchased it in 1953 from Virginia Hill.  Conversely, the Days claimed an interest in the property as the heirs of another child of Hill=s father whose interest, they contend, was not conveyed in the deed to Jericho.  The parties filed cross motions for summary judgment on their title claims, and the trial court granted summary judgment, among other things, declaring that: (1) the Jerichos held title to the property; and (2) the Days had no interest in the property because they failed to qualify in a timely manner with section 42.  This part of the case was subsequently severed from the original property tax action.

Standard of Review

A traditional summary judgment may be granted if the motion and summary judgment evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or response.  Tex. R. Civ. P. 166a(c).  On appeal, we review the summary judgment de novo.  Provident Life & Accident Ins. Co. v. Knott, __ S.W.3d __, __ (Tex. 2003).  However, we may not reverse a summary judgment on a basis not raised by the appellant on appeal.  See Jacobs v. Satterwhite, 65 S.W.3d 653, 655-56 (Tex. 2001).

Application of Section 42

The Days= first point of error challenges the trial court=s ruling that they failed to qualify with the provisions of section 42 in a timely manner because section 42(b)(1)^[1] has no time constraints.  However, even if the Days are correct with regard to section 42(b)(1) having no time constraints, which we need not decide, the Jerichos= motion for summary judgment was instead based on the application of section 42(b)(2).^[2]  Because the Days= brief does not address or challenge the application of section 42(b)(2) in any manner (neither with regard to timeliness or otherwise), it fails to demonstrate any error by the trial court in granting summary judgment based on that provision.^[3]  Accordingly, the Days= first point of error is overruled, we need not address their remaining point (challenging the Jerichos= alternative theories and summary judgment grounds for seeking title to the property), and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed March 30, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

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^[1]           See Tex. Prob. Code Ann. ' 42(b)(1) (Vernon 2003) (allowing a person claiming to be a biological child of the decedent, but who is not otherwise presumed to be a child of the decedent, or claiming inheritance through a biological child of the decedent, who is not otherwise presumed to be a child of the decedent, to petition the probate court for a determination of the right of inheritance).

^[2]           See id. ' 42(b)(2) (providing circumstances in which a purchaser of property for value, who relies in good faith on an affidavit of heirship, acquires good title as against a child not named in the affidavit).

^[3]           See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (recognizing that a summary judgment may not be reversed where a ground on which it was sought has not been challenged on appeal).