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Corkill v. Guevara

Court of Appeals of Texas, Fourth District, San Antonio

May 29, 2019

Denise CORKILL, Appellant
v.
Diane GUEVARA and Alyssa Guevara, Appellees

          From the 229th Judicial District Court, Duval County, Texas Trial Court No. DC-17-140 Honorable Jose Luis Garza, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          IRENE RIOS, JUSTICE

         AFFIRMED

         Appellant 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.

         Background

         In 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 her.

          In 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.

         Standard of Review

         Where, 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).

         A party 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.

         Discussion

         In a 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, no pet.).

         We 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 ...


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