Court of Appeals of Texas, Fourth District, San Antonio
the 229th Judicial District Court, Duval County, Texas Trial
Court No. DC-17-140 Honorable Jose Luis Garza, Judge
Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa,
Justice Irene Rios, Justice
Denise Corkill ("Corkill") appeals from the trial
court's order granting traditional and no-evidence
summary judgment in favor of appellees Diane and Alyssa
Guevara (jointly, "the Guevaras"). We affirm the
trial court's judgment.
2003, Robert Guevara ("Robert") inherited real
property located in Benavides ("the Property").
Robert's cousin, Corkill, claims she began maintaining
the Property in 2011 and continued doing so after 2015
because Robert said "he was giving" the Property to
December 2015, after receiving a diagnosis of terminal
cancer, Robert executed a will in which he specifically
bequeathed the Property to his wife, appellee Diane Guevara.
Robert died on March 12, 2016. In August 2017, Corkill filed
an original petition in the trial court against Diane and her
daughter Alyssa seeking declaratory judgment that Corkill is
the owner of the Property because Robert made an oral gift of
the Property to Corkill. The Guevaras filed a traditional and
no-evidence motion for summary judgment, arguing Corkill
cannot establish a valid oral gift. The trial court granted
the motion, and Corkill appeals.
as here, a defendant moves for both traditional and
no-evidence summary judgment and the trial court grants
summary judgment without stating its grounds, we first review
the trial court's decision as to the no-evidence motion
for summary judgment. Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004). We review the grant of
no-evidence summary judgment de novo. Joe v. Two Thirty
Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004).
moving for no-evidence summary judgment is entitled to
judgment if, "[a]fter adequate time for discovery, . . .
there is no evidence of one or more essential elements of a
claim or defense on which an adverse party would have the
burden of proof at trial." Tex.R.Civ.P.
166a(i). The trial court "must" grant a
no-evidence motion for summary judgment unless the non-moving
party produces evidence raising a genuine issue of material
fact. Id. "A genuine issue of material fact
exists if more than a scintilla of evidence establishing the
existence of the challenged element is produced."
Ridgway, 135 S.W.3d at 600.
single issue on appeal, Corkill argues the trial court erred
in granting summary judgment in the Guevaras' favor
because the summary judgment evidence demonstrates Robert
made an oral gift of the Property to Corkill. To establish an
oral gift of real property, Corkill bears the burden to
demonstrate: (1) Robert made a present gift to Corkill; (2)
Corkill possessed the Property with Robert's consent; and
(3) either (a) Corkill made permanent and valuable
improvements to the Property with Robert's knowledge or
consent, or (b) facts exist that would make it a fraud upon
Corkill not to enforce the gift. See In re Estate of
McNutt, 405 S.W.3d 194, 196 (Tex. App.-San Antonio 2013,
first consider whether the summary judgment evidence raises a
genuine issue of material fact regarding whether Robert made
a present gift to Corkill. To establish a present gift,
Corkill must show that at the time he made the gift, Robert
intended to release all dominion and control over the
Property to Corkill such that Corkill's possession was in
the nature of an owner's right to the Property. See
id. at 199 (Marion, J., dissenting) (citing Thompson
v. Dart, 746 S.W.2d 821, 825 (Tex. App.-San Antonio
1988, no writ)). "Statements to the effect that a donor
is 'going to give,' or will give the gift at some
later date, do not show an intent to make a present
gift." Walker v. Walker, No. 14-16-00357-CV,
2017 WL 1181359, at *5 (Tex. App.-Houston [14th Dist.] Mar.
30, 2017, no pet.) (mem. op.) (citing Flores v.
Flores, 225 S.W.3d 651, 657 (Tex. App.-El Paso 2006,
pet. denied); Thompson, 746 S.W.2d at 826-27;
Massey v. Lewis, 281 S.W.2d 471, 474 (Tex.
App.-Texarkana 1955, writ ref'd n.r.e.)). "Because a
will is without legal effect until the time of the
testator's death, a statement that a testator intends to
bequeath property in a will evinces only an intention to make
the gift in the future." In re ...