COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
UPCURVE ENERGY PARTNERS, LLC, § No. 08-21-00156-CV
Appellant, § Appeal from the
v. § 143rd Judicial District Court
KURT MUENCH, LANCE MUENCH, § of Reeves County, Texas MARK MUENCH, FRANK W. FOUTS IV, and SHEILA STIBOLT, § (TC# 19-09-23159-CVR)
Appellees. §
OPINION
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 motions 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 the 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 of Appellees Sheila D. Stibolt and Frank W. Fouts IV, who argued the
original grantees’ had acquired their joint tenancy interest with rights 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. BACKGROUND
For context, we begin with a brief factual and procedural recitation from our record. 1
A. The underlying lawsuit
On 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. They alleged they 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 conveyed all her property interest to her three children, Shirley
Muench, Richard Werner, and Geraldine Fox (the original grantees), “not in Tenancy in Common
but in Joint Tenancy.” 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.
2 The Southeast one-fourth (SE ¼) 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 interests from all three original grantees either based
on the intestacy statute or based on an inter vivo conveyance from Geraldine Fox in July 2003.
Their original petition named six individual defendants, 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 Fox; (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
conveyance by Geraldine Fox. The Muenches contended the named defendants were all
wrongfully asserting and withholding possession from them of certain undivided mineral interests
in the subject Property. Alternatively, they sought a declaration quieting title to the mineral interest
such as to establish that, by means of the 1981 deed, Dorothy gifted her interest in the Property to
her three children, and this conveyance resulted in their 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 plaintiffs and
defendants.
All the several defendants filed general denials against the Muenches claims, while
UpCurve 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.
3 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
assertions 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 the 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, they stipulated that the issues
before the trial court include: (1) whether the grantees of the 1981 deed took the Property 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, the joint stipulation contained three attachments identified
by the letters A, B, and C, each illustrating the resulting effect of the competing theories of
ownership.
Attachment A of the joint stipulation presented the Muenches theory asserting the original
grantees acquired their interests as separate property. They contended 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 contended that although grantee Richard had been married when he
acquired his share, the couple never had any children. Upon Richard’s passing, the Muenches
4 contended 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 contended 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. They 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
Muenches further contended 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
asserted that under the separate property characterization theory, the property interests are owned
as follows:
Theory A – Separate Property Characterization
Kurt W. Muench 22.222% Received interest through inheritance of Lance A. Muench Shirley’s interest, Richard’s interest, and as 22.222% grantees of Geraldine’s interest Mark A. Muench 22.222%
Sheila Diane Stibolt 8.333% Received interest as grantees of Geraldine’s interest Frank W. Fouts IV 8.333% Received its interest as grantee of William UpCurve Robinson who in turn received his interest as 3.333% an heir of Richard’s wife Billie Carol Robinson 3.333% Reed James Robinson Received interest as heir of Richard’s wife 3.333%
Robert Robinson 3.333% Received interest as grantee of Jerry Robinson Donna Ducharme 3.333% who received interest as heir of Richard’s wife ≈100%
5 Attachment B of the joint stipulation presented a theory asserted by UpCurve, the
Robinsons, and Donna Ducharme. This theory asserted that grantees received the Property 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 contended 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 contended 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 contended
her interest passed to heirs Billie Carol Robinson Reed, James Robinson, William Robinson,
Robert Robinson, 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, these parties further contended 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
contended 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 contended the breakdown of
ownership interests under the community property theory was as follows:
6 Theory B – Community Property Characterization
Kurt W. Muench 14.444% Received interest through inheritance of Lance A. Muench Shirley’s interest and as grantees of 14.444% Geraldine’s interest Mark A. Muench 14.444%
Sheila Diane Stibolt 3.333% Received interest as grantees of Geraldine’s interest Frank W. Fouts IV 3.333% Received its interest as grantee of William UpCurve Robinson (heir of Richard’s wife) and as 23.333% grantee of Geraldine’s husband’s heirs Billie Carol Robinson 6.666% Reed James Robinson Received interest as heir of Richard’s wife 6.666%
Robert Robinson 6.666% Received interest as grantee of Jerry Robinson Donna Ducharme 6.666% who received interest as heir of Richard’s wife ≈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 contended 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
claims of ownership as joint tenants with the right of survivorship. See TEX. R. APP. P. 25.1(c).
7 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 summary judgment motions
On March 16, 2020, the 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] bounty,’ the general community property presumption is
‘displaced’ by the presumption that the 1981 [d]eed conveyed a gift.” As evidence, they 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 it 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
represented 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
deeds executed by the Fox heirs conveying an interest in the Property to UpCurve, as well as the
8 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, the 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. Consequently, 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, the trial court signed a Final Summary Judgment. First, the trial court
granted the Muenches motion as to the separate property issue, and otherwise it found the motion
was denied. Second, as to UpCurve’s and the Robinson and Ducharme defendants’ motions, the
trial court granted their motions as to the survivorship issue, and otherwise the motion was denied.
Third, as to Frank W. Fouts IV, and Sheila D. Stibolt, the trial court denied their motion. And
finally, as to the ownership of the property interests, the trial court declared 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,
9 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. DISCUSSION
In its sole issue, UpCurve 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
Muenches motion for summary judgment on the issue of whether the original grantees’ interests
were community property or separate property, and that the trial court further erred in denying
UpCurve’s cross motion on the same issue.
A. Standard of review and applicable 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.
TEX. R. CIV. 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 they 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.” TEX. R. APP. 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.” TEX. R. APP. 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, we express no opinion on the merits of their claims or arguments. 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).
10 (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. Texas Workers’ Comp. Comm’n v. Patient Advocates of Texas, 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. Kansas 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 TEX. PROP. CODE ANN. §
22.001(a) (providing, “trespass to try title action is the method of determining title to lands,
11 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 proof 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, they asserted
the parties had agreed that claims of title to the disputed property arose out of a common source—
that is, from grantor Dorothy M. Werner conveying the Property to the three grantees. The question
12 of disputed fact, they asserted, 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 they conclusively established each element of their claim of superior title as to
their ownership interest. See TEX. R. CIV. 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 they 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 asserted they met their summary judgment burden based on the evidence
produced and by reliance on a separate property presumption displacing a presumption of
community property. Initially, the Muenches recognized the community property presumption
applied because no party disputed that each grantee was married when each acquired their
respective share of the Property. See TEX. FAM. CODE ANN. § 3.003(a) (stating that all property
possessed by either spouse during marriage is initially presumed to be community property).
However, they further asserted 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 this separate property presumption is rebuttable, the Muenches
13 contended 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. See 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. 09-18-00208-CV, 2020 WL 1173704, at
*10–11 (Tex. App.—Beaumont Mar. 12, 2020, no pet.) (mem. op.) (finding no divestiture 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 establishing
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 determining 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 for
14 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 Muenches 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 TEX. R. CIV. 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 TEX. R. CIV. P. 166a(c),
not as a combined motion or no-evidence motion for summary judgment under TEX. R. CIV. 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.”).
In support of their motion, the 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 intent);
15 Hallum v. Hallum, No. 01-09-00095-CV, 2010 WL 4910232, at *4 (Tex. App.—Houston
[1st 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 arguments, the 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 TEX. FAM. CODE ANN. § 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 TEX. FAM. CODE ANN. § 3.003(a), they argued
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
4910232, 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 because
the Muenches showed the existence of this basic fact establishing a parent-child relationship
between the grantor and grantees of the 1981 deed, they 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—involved a sufficiency review of evidence
16 following a trial on the merits. None 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 899. “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.” Id. at 900 (quoting Missouri-Kansas-
Texas 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 property as separate property
to each grantee. Here, the 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 an
17 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 Fox.
On this record, we conclude the Muenches did not meet their summary judgment burden
to conclusively establish a conveyance by gift such as to characterize the ownership of the
grantees’ interests as separate property. See TEX. R. CIV. P. 166a(c). As a result, the Muenches did
not conclusively establish superior 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, we 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, we 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 TEX. R. CIV. P. 166a(c). On appeal, UpCurve also
challenges the trial court’s denial of its 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 they
18 claim over its interest, and if those parties failed to meet their burden, then judgment should be
entered for UpCurve.
UpCurve also based its entitlement to summary judgment on the characterization of the
Property 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 TEX. FAM.
CODE ANN. § 3.003(a). UpCurve asserts the grantees of the 1981 deed acquired their interests as
community property such that their spouses shared 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 establishing 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 grantees.
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 gaps, 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, we conclude that UpCurve failed to meet its burden to conclusively
establish the community property character of the Property interest conveyed to each grantee. See
19 TEX. R. CIV. 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, we overrule in part and sustain in part UpCurve’s sole issue.
III. CONCLUSION
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.
GINA M. PALAFOX, Justice
February 21, 2023
Before Rodriguez, C.J., Palafox, and Alley, JJ. Alley, J. (not participating)