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In re Estate of Turner

Court of Appeals of Texas, Sixth District, Texarkana

December 8, 2017

IN RE THE ESTATE OF MAGGIE WILLIAMS TURNER, DECEASED

          Date Submitted: November 15, 2017

         On Appeal from the 276th District Court Marion County, Texas Trial Court No. 1500143

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Bailey C. Moseley Justice

         Markutter McIntosh appeals the trial court's order granting partial summary judgment in favor of Mildred Bonner, Independent Executrix of the Estate of Maggie Williams Turner, deceased, which order declared that McIntosh had no interest in the real property described in the warranty deed at issue. On appeal, McIntosh contends Texas law did not permit Turner to terminate McIntosh's interest in the property. For the reasons below, we affirm the trial court's judgment.

         I. Background

         According to the summary judgment record, in 2009, Turner hired James Finstrom[1] to assist her in conveying to McIntosh thirteen tracts of real property located in Marion County (the Property). The conveyance was to take place upon Turner's death; however, Turner desired to retain, during her lifetime, all of her then-rights in the Property, including the power to sell the Property without McIntosh's permission. In order to carry out Turner's wishes, Finstrom prepared a warranty deed in which Turner "reserved during her life, 'the full possession, benefit and use'" of the Property, "as well as the rents, issues and profits thereof and the unilateral power of sale of any or all of the [Property] with or without the consent of [McIntosh]." Turner executed the warranty deed on November 13, 2009, and it was filed of record in Marion County on that same day.

         On April 2, 2013, Turner conveyed the Property to Maggie Turner, L.L.C.[2] "The conveyance [was] made in fee simple." The conveyance was executed by Turner and filed of record on the same day.

         In McIntosh's amended petition, she maintained that the warranty deed's "provision that 'reserved a unilateral power of sale of any or all of the property with or without the consent of Grantee, for and during the natural life of Maggie Turner' is Null and Void because the provision constitutes an Alienation of Restrain on and or Violates Texas Property Code § 5.041[.]" McIntosh continued by alleging these acts were "done as part of a basically unfair device to achieve an inequitable result[, ] to wit[, ] divesting [McIntosh] of her property and royalty interest in the deed dated November 13, 2009[.]"

         In response to McIntosh's allegations, Bonner filed a motion for partial summary judgment[3] asking the trial court to enter a judgment declaring that McIntosh had no interest in the Property. In her motion, Bonner stated that the 2009 deed was a Lady Bird or Enhanced Life Estate Deed, explaining that such "deed is essentially a transfer of real property to a grantee in which the grantor reserves a life estate and the lifetime power to convey the property and, thus, unilaterally terminate the grantee's interest."[4] In other words, "the grantee receives a contingent remainder interest." Bonner contends that based on the terms of the 2009 deed, Turner exercised the power of sale reserved in her deed by conveying the Property to Maggie Turner, LLC, in 2013. This conveyance terminated McIntosh's interest in the Property.

         McIntosh responded to Bonner's motion for partial summary judgment by objecting to many of McIntosh's summary judgment exhibits and citing Entergy Gulf States, Inc. v. John Summers, 282 S.W.3d 433 (Tex. 2009).[5] In her response, McIntosh also argued that Section 5.041 of the Texas Property Code prevented Turner from retaining the power of sale that could terminate McIntosh's interest in the Property. Section 5.041, entitled "Future Estates, " reads, "A person may make an inter vivos conveyance of an estate of freehold or inheritance that commences in the future, in the same manner as by a will." Tex. Prop. Code Ann. § 5.041 (West 2014).

          On May 17, 2017, the trial court entered its order granting Bonner's motion for partial summary judgment, declaring that McIntosh had no interest in the Property. McIntosh timely filed this appeal, continuing to maintain that Texas law did not allow Turner to retain the power of sale that terminated McIntosh's rights to the Property.

         II. Discussion

         We review de novo the grant or denial of a motion for summary judgment "to determine whether a party's right to prevail is established as a matter of law." Lamar Corp. v. City of Longview, 270 S.W.3d 609, 613 (Tex. App.-Texarkana 2008, no pet.). In making the required review, we deem as true all evidence that is favorable to the nonmovant, we indulge every reasonable inference to be drawn from the evidence, and we resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When the trial court does not specify the basis for its ruling, we must ...


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