using summary judgment procedure in family law cases

USING SUMMARY JUDGMENT PROCEDUREIN FAMILY LAW CASES

CHRIS NICKELSON5201 West Freeway, Suite 100

Fort Worth, Texas 76107

State Bar of TexasADVANCED FAMILY LAW DRAFTING

December 9-10, 2010Houston

CHAPTER 5

BIOGRAPHY

CHRIS NICKELSON LAW OFFICE OF GARY L. NICKELSON

5201 West Freeway, Suite 100 Fort Worth, Texas 76107

817-735-4000 FAX: 817-735-1480

EDUCATION J.D. from Texas Tech University School of Law, 1999 B.A. from The University of Texas at Austin, 1996 EMPLOYMENT BACKGROUND Law Office of Gary L. Nickelson, 2008-present Partner with Shannon, Gracey, Ratliff & Miller, L.L.P., 2005-2007 Associate with Shannon, Gracey, Ratliff & Miller, L.L.P., 2001-2004 Staff Attorney to Justice David Chew of the El Paso Court of Appeals, 2000 Law Clerk to Justice Ann McClure of the El Paso Court of Appeals, 1999-2000 OFFICES HELD Member, Family Law Council, State Bar of Texas Family Law Section 2010-2015 Director, Tarrant County Bar Association Board of Directors, 2008-2009 Chair of the Tarrant County Bar Association Appellate Section, 2008-2009 Vice-Chair of the Tarrant County Appellate Section, 2007-2008 Secretary of the Tarrant County Appellate Section, 2006-2007 HONORS RECEIVED Board Certified in Civil Appellate Law, 2006-present Rising Star, Texas Monthly Magazine 2004-2010 Top Attorney, Fort Worth Magazine, 2007-2010 CLE ACTIVITIES • Co-Author and Co-Presenter of Appellate Practice from Every Angle, 2010 State Bar of Texas Advanced

Family Law Course. • Co-Author and Presenter of Proving Separate Property: An Argument for More Use of Summary Judgment

Practice in Family Law Cases, 2010 State Bar of Texas Advanced Family Law Course. • Author, Impacts at Trial: Saving Your Trial from Mistakes, 10th Annual Family Law on the Front Lines, UT

CLE, July, 2010, San Antonio, Texas. • Author of Finalizing the Deal: Rule 11 Agreements, Mediated Settlement Agreements, and Why Its So Important

to Get Orders Timely Signed, State Bar of Texas Marriage Dissolution Course, 2010, San Antonio, Texas. • Co-Author and Presenter of Preservation of Error (Including Making and Meeting Objections), 2009 Trial of

Breach of Fiduciary Duty Litigation Cases, Fredericksburg, Texas. • Author and Presenter of Equitable Remedies: Getting Out of Traps, Messes, and Other Problems to which You

or Your Client May Have Unintentionally Agreed, 2009 State Bar of Texas Advanced Family Law Course. • Course Director for the 2009 Boot Camp prior to the State Bar of Texas Advanced Family Law Course. • Author and Presenter of, Appealing Your Family Law Case, 23rd Annual Family Law Conference, South Texas

College of Law, March 2009, Houston, Texas. • Course Director of Family Law Essentials Seminar, October 2008, San Angelo, Texas. • Co-Author of Professionalism, August 2008, Advanced Family Law Course, San Antonio, Texas. • Author of Maintaining the Chain of Electronic Evidence and Spoliation of Electronic Evidence, 2008 Advanced

Family Law Course. • Author and Presenter of Brief Writing that Appeals to Your Audience, 2008 State Bar of Texas Marriage

Dissolution Course. • Course Director for 2008 Brown Bag Seminar for Tarrant County Bar Association titled “When Reasonable

Minds Cannot Disagree: Summary Judgment Practice in Texas.” • Co-Author and Presenter of Extraordinary Writs: When Ordinary Relief Just Won't Do 2007 State Bar of Texas Marriage Dissolution Course, El Paso. • Co-Author of Appellate Advocacy: From the Judge's Perspective; 2005 State Bar of Texas Advanced Family Law Course, Austin.

• Co-Author and Presenter of Like Skeet and Sporting Clay: Direct and Collateral Attacks on Judgments, August 2005 State Bar of Texas Advanced Family Law Course. • Co-Author of Preservation of Error for Discovery Issues, 2005 Brown Bag Seminar for Tarrant County Bar

Association, Appellate Section • Co-Author of Appellate Advocate - Substantive Court of Appeals Update, for The Appellate Advocate, 2001-

2005. • Author of Relief is Just an Appeal Away: Drafting With Appeal, 2003 State Bar of Texas Advanced Family Law

Course. • Author of Puttin' on the Writs: Mandamus, Prohibition and Habeas Corpus, 2002 State Bar of Texas

Advanced Family Law Course. REPORTED CASES Johnson v. State Farm Lloyds, 290 S.W.3d 886 (Tex. 2009). Johnson v. State Farm Lloyds, 204 S.W.3d 897 (Tex.App.--Dallas 2006), aff’d, 290 S.W.3d 886 (Tex. 2009). In re Vesta Ins. Group, Inc., 192 S.W.3d 759 (Tex. 2006). Etheredge v. Hidden Valley Airpark Ass’n, 169 S.W.3d 378 (Tex.App.—Fort Worth 2005, pet. denied). Old American Cty. Mut. Fire Ins. Co. v. Michael D. Renfrow, et al, 130 S.W.3d 70 (Tex. 2004). Citizens Nat’l Bank v. Allen Rae Investments, Inc., 142 S.W.3d 459 (Tex.App.—Fort Worth 2004, no pet.). Loaiza v. Loaiza, 130 S.W.3d 894 (Tex.App.—Fort Worth 2004, no pet.). Boyd v. Boyd, 131 S.W.3d 605 (Tex.App.—Fort Worth 2004, no pet.). U.S. Restaurant Properties Operating L.P. v. Motel Enterprises Inc., 104 S.W.3d 284 (Tex.App.—Beaumont 2003, pet. denied). Old American Cty. Mut. Fire Ins. Co. v. Michael D. Renfrow, et al, 90 S.W.3d 810 (Tex.App.—Fort Worth 2002), rev’d by, 130 S.W.3d 70 (Tex. 2004).

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=TX_caselaw&volume=290&edition=S.W.3d&page=886&id=126413_01












Using Summary Judgment Procedure in Family Law Cases Chapter 5

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TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. ACKNOWLEDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. THE TWO TYPES OF MOTIONS AND THE BURDEN OF PROOF UNDER EACH . . . . . . . . . . . . . . . . . . 1

IV. THE EVIDENTIARY STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

V. MAJOR USE OF MSJs–PROVING SEPARATE PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3A. What is separate property? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Constitutionally Recognized Separate Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32. Other Sources of Separate Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33. Warning about the Constitutional Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34. Community Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35. Summary of Separate Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Rules for Proving that Property is Separate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41. The Basic Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42. Evidence Needed to Prove that Property is Separate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

VI. OTHER MAJOR USES OF MSJs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13A. Traditional MSJs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. Enforcement of Pre-, Post- and Marital Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132. Parentage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153. Void, Voidable Marriages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164. Adultery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

B. No Evidence MSJs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171. Common Law Marriage Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172. Modifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183. Eliminating Bogus Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

VII. UNDERSTANDING THE PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22A. Traditional MSJs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22B. No-Evidence Motion 166a(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23C. Timing Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1. Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242. Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

D. The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

VIII. CRAFTING YOUR AFFIRMATIVE MOTION FOR SUMMARY JUDGMENT . . . . . . . . . . . . . . . . . 24A. Identify Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24B. Identify Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24C. Drafting the Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25D. Drafting Your Affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25E. Bulletproofing Your Documentary Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27F. Check Your Pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

IX. RESPONDING TO THE AFFIRMATIVE MOTION FOR SUMMARY JUDGMENT . . . . . . . . . . . . . . . . . 28A. Challenging Their Legal Position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28B. Attacking Their Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

1. Affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292. Documentary Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

X. CRAFTING YOUR NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT . . . . . . . . . . . . . . . . . . . . . 30


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XI. RESPONDING TO THE NO-EVIDENCE MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31A. Need Additional Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31B. Don’t Need to Marshall . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

XII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32


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USING SUMMARY JUDGMENTPROCEDURE IN FAMILY LAW CASES

I. INTRODUCTIONThe purpose of this paper is to discuss the basics

about how to use summary judgment procedure in familylaw cases. The author believes that summary judgmentshould be more frequently used by practitioners and morefrequently accepted by courts to eliminate un-meritoriousdisputes and to therefore promote the rapid resolution offamily law cases by streamlining the issues for trial orencouraging settlement over the remaining issues.

Rule 1 of the Texas Rules of Civil Procedure setsforth the objectives of the rules and the principles whichare to guide us in resolving disputes:

The proper objective of the rules of civilprocedure is to obtain a just, fair, equitable,and impartial adjudication of the rights oflitigants under established principles ofsubstantive law. To the end that this objectivemay be attained with as great expedition anddispatch and at the least expense both to thelitigants and to the state as may be practicable,these rules shall be given liberal construction.

Summary judgment practice is not only consistent withthis objective, but is one of the most effective proceduresfor attaining that objective of adjudicating the rights oflitigants in a timely, efficient, and cost conscious manner. Summary judgment procedure is designed to piercethe pleadings and to eliminate claims or defenses that arepatently un-meritorious Summary judgment has uniquerelevance to family law in that it presents a proceduralvehicle for eliminating un-meritorious disputes about anumber of issues which are often asserted before trial andwhich prevent rapid settlement of resolution until theissues are removed form the litigation.

For example, while the opposing party may not wantto admit the stock portfolio your client received as aninheritance is her separate property, there really isn’t anydispute about it. Many times in family law, much ofwhat goes on is merely posturing. Often, there is little tono evidence to back up positions. This is wheresummary judgments can come in to separate what is trulya disputed issue versus what is mere posturing. Sincethere is no necessity for a trial on truly undisputed issueswhich can be disposed of prior to trial, the parties arespared the unnecessary delay and expense of a trial onthose issues. Furthermore, in most cases where there aresubstantial characterization disputes, once the parties’characterization disputes have been resolved it becomesmuch easier to settle the case.

II. ACKNOWLEDGMENTThe author would like to thank Patrice L. Ferguson

and Cynthia P. Nguyen, for granting their permission touse portions of their paper titled, Selected IssuesRegarding Tracing and Characterization, which waspresented at the 33rd Annual Marriage Dissolution Coursein may of this year. In addition, the author would like tothank R. Scott Downing for granting his permission touse portions of his paper titled, Making SummaryJudgment Relevant Again, which was presented at 33rd

Annual Advanced Family Law Course in August of 2007.Both papers are excellent sources for anyone

wanting know more about characterization of maritalproperty, or summary judgment practice, in Texas.

III. THE TWO TYPES OF MOTIONS AND THEBURDEN OF PROOF UNDER EACH. The starting point of any discussion of summary

judgment procedure is the two types of motionsauthorized by Rule 166a of the Texas Rules of CivilProcedure. Rule 166a authorizes two differentprocedures which allow a trial court to deny a litigant afull blown evidentiary trial and enter a summaryjudgment. See Tex. R. Civ. P. 166a(c), (i) (Westlaw2010).

The first way is through a traditional motion forsummary judgment. Under this procedure, the partymoving for summary judgment has the burden toconclusively establish that there are no genuine issues ofmaterial fact and it is entitled to judgment as a matter oflaw. See Tex. R. Civ. P. 166a(c); Provident Life & Accid.Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003).

The second way is through a no evidence motion forsummary judgment. Under this procedure, the burden ofproof is on the responding party to produce evidencesufficient to raise a genuine issue of material fact on theessential elements of a claim or defense challenged by themoving party. See Tex. R. Civ. P. 166a(i); Sudan v.Sudan, 199 S.W.3d 291, 292 (Tex. 2006).

IV. THE EVIDENTIARY STANDARD.The historical standard for deciding whether to grant

a traditional or no-evidence summary judgment is setforth below:

In determining whether a genuine issue of materialfact exists, the trial court is required to take as trueall evidence favorable to the nonmovant, andindulge every reasonable inference and resolveany doubts in the nonmovant’s favor. ProvidentLife & Accid. Ins. Co. v. Knott, 128 S.W.3d 211,215-16 (Tex. 2003). If the nonmovant bringsforward more than a scintilla of probative evidencethat raises a genuine issue of material fact for trial,the motion for summary judgment must be denied.





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Gulbenkian v. Penn, 252 S.W.2d 929, 931(Tex.1952). More than a scintilla of evidenceexists when the evidence would enable reasonableand fair-minded people to reach differentconclusions. Merrill Dow Pharms., Inc. v.Havner, 953 S.W.2d 706, 711 (Tex. 1997).

In 2005, the Texas Supreme Court revisited the legalsufficiency standard of review to clarify how a court wasto assess whether evidence was legally sufficient tosupport a finding of fact. In City of Keller v. Wilson, theCourt engaged in an extensive analysis of the legalsufficiency standard and concluded that:

The final test for legal sufficiency must always bewhether the evidence at trial would enablereasonable and fair-minded people to reach theverdict under review. Whether a reviewing courtbegins by considering all the evidence or only theevidence supporting the verdict, legal sufficiencyreview in the proper light must credit favorableevidence if reasonable jurors could, and disregardcontrary evidence unless reasonable jurors couldnot.

City of Keller v. Wilson, 168 S.W.3d 802, 827(Tex.2005).

In discussing what evidence could be credited, andwhat evidence could not be disregarded, by a reasonablejuror, the Texas Supreme Court identified several rules areviewing court must keep in mind when decidingwhether evidence offered to prove a vital fact was legallysufficient.

First, the reviewing court must keep in mind thatevidence cannot be taken out of context in a way thatmakes it seem to support a verdict when in fact it neverdid. Wilson 168 S.W.3d at 811-12. If a witness’sstatement “I did not do that” is contrary to the jury’sverdict, a reviewing court may need to disregard thewhole statement, but cannot rewrite it by disregarding themiddle word alone. Id. at 812. Thus, if evidence may belegally sufficient in one context but insufficient inanother, the context cannot be disregarded even if thatmeans rendering judgment contrary to the jury’s verdict.Id.

Second, in conducting a sufficiency review, thereviewing court must keep in mind that incompetentevidence is legally insufficient to support a judgment,even if admitted without objection. Wilson 168 S.W.3dat 812. Further, if there is evidence in the record whichshows that other evidence is incompetent, the evidenceproving the incompetency of other evidence cannot bedisregarded. Id. For example, if an eyewitness’slocation renders a clear view of an accident “physically

impossible,” it is no evidence of what occurred, even ifthe eyewitness thinks otherwise. Id. Thus, evidence thatmight be “some evidence” when considered in isolationis nevertheless rendered “no evidence” when contraryevidence shows it to be incompetent. Id.

Third, in conducting a sufficiency review, thereviewing court must keep in mind that courts cannotdisregard evidence that conclusively establishes theopposite of a vital fact. Wilson 168 S.W.3d at 814.There are several types of conclusive evidence. First,there is undisputed evidence “that allows of only onelogical inference.” Id. Second, there is evidence whichan opposing party admits is true. Id. at 815. Third, thereis undisputed testimony that is clear, positive, direct,otherwise credible, free from contradictions andinconsistencies, and could have been readilycontroverted. Id. at 820.

Fourth, the reviewing court must keep in mind thatthe jury is the sole judge of the credibility of thewitnesses and the weight to give their testimony. Wilson,168 S.W.3d at 819. The jury may choose to believe onewitness and disbelieve another. And a reviewing courtcannot impose its own opinions to the contrary. Id. Ofcourse, “[t]he jury’s decisions regarding credibility mustbe reasonable.” Id. at 820. Jurors cannot take evidenceout of context, cannot disregard evidence which showsthat other evidence is incompetent, and cannot disregardevidence that conclusively establishes the opposite of avital fact. Id. at 811-17, 820. Proper sufficiency reviewprevents reviewing courts from substituting theiropinions on credibility for those of the jurors. Wilson,168 S.W.3d at 816-17. However, proper review alsoprevents jurors from substituting their opinions forundisputed truth. Id. When evidence contrary to averdict is conclusive, it cannot be disregarded. Id.Further, when evidence in support of a verdict is takenout of context or is incompetent, it must be disregarded.Id. at 811-17, 820.

The Texas Supreme Court has not been consistent inits discussions of whether a court considering a motionfor no evidence summary judgment can considerevidence that is contrary to the non-movant’s position.In City of Keller v. Wilson the Court indicated that a courtcould not consider such evidence. Wilson, 168 S.W.3d at825. However, in a later case, the Court indicated that itwould consider evidence contrary to the non-movant’sposition if a reasonable juror could not disregard it.Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82(Tex. 2006). Until this procedural issue is finallyresolved, make sure that when drafting your motion orresponse you consider whether there is any evidencewhich a reasonable juror could not disregard and includeargument for or against such evidence being consideredby the court in granting or denying summary judgment.












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V. MAJOR USE OF MSJs–PROVING SEPARATEPROPERTY.One of the best uses for summary judgment

procedure in family law cases is the resolution ofseparate property claims which are either established asa matter of law by conclusive evidence or the eliminationof bogus claims of separate property which are supportedby no evidence whatsoever.

The paper covers the use of summary judgment toprove separate property claims before addressing theother uses of summary judgment which are discussed inSection VI, below.

A. What is separate property? 1. Constitutionally Recognized Separate Property.

Texas recognizes two types of marital property:“separate” and “community” property. The TexasConstitution defines the separate property of a spouse as“all property, both real and personal . . . owned orclaimed before marriage, and that acquired afterward bygift, devise or descent.” See Tex. Const. Art. 16, § 15;see also, Tex. Fam. Code § 3.001 (O’Connor’s 2009-10).In addition, the Texas Constitution provides that aspouse’s separate property may include property andincome from property that is partitioned and/orexchanged by written agreement before or after marriage.See Tex. Const. Art. 16, § 15.

2. Other Sources of Separate Property.The Texas Legislature has added on to the definition

of separate property set forth in the Texas Constitution.See Tex. Fam. Code § 3.001(3). The Texas Family Codestates that a spouse’s separate property also includes “therecovery for personal injuries sustained by the spouseduring marriage, except any recovery for loss of earningcapacity. See Id.

Case law and statutory authority explain thatseparate property remains separate if it can be tracedfrom its origin as separate property through mutation intoits another form. See Norris v. Vaughn, 152 Tex. 491,260 S.W.2d 676, 501 (1953); see also Tex. Fam. Code §3.003(b) (O’Connor’s 2009-10).

Further, case law explains that if an asset is acquiredthrough a debt transaction in which the creditor agrees tolook solely to the debtor’s separate estate for repayment,then the asset purchased with debt is characterized asseparate property of the debtor spouse who purchased it.See Broussard v. Tian, 156 Tex. 376, 295 S.W.2d 405(1956), cert. denied, 353 U.S. 941, 77 S.Ct. 811, 1L.Ed.2d 758 (1957); Gleich v. Bongio, 128 Tex. 606, 99S.W.2d 881, 886 (1937); see also Jones, 890 S.W.2d at475; Welder, 794 S.W.2d at 427; Holloway v. Holloway,671 S.W.2d 51, 56-57 (Tex.App.–Dallas 1983, writdism’d); Price v. Service Bureau, Inc., 165 S.W.2d 794,796 (Tex.Civ.App.–Amarillo1942, writ ref’d w.o.m.).

3. Warning about the Constitutional Definition. In the past, the Texas Supreme Court has held in that

the constitutional definition of separate property wasenacted in order to remove the Texas Legislature’s powerto alter the character of separate property and therebyenlarge or diminish what is characterized as the spouses’community property. Arnold v. Leonard, 114 Tex. 535,273 S.W. 799, 803 (1925). According to the Court, theconstitutional definition of separate property is exclusiveand cannot be altered by legislative action. Eggemeyer v.Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977); Arnold,273 S.W. at 803. Thus, any Legislative attempt toexpand or diminish the definition of separate property islikely unconstitutional.

That being said, the Texas Supreme Court hasoverlooked the “exclusive” definition of separateproperty set forth in the Texas Constitution on occasion.In Graham v. Franco, the Texas Supreme Courtconsidered the Legislature’s addition of personal injuryrecoveries to the definition of separate property. Id., 488S.W.2d 390, 39-95 (Tex. 1972). The Court concludedthat the common law and Spanish law traditionsconsidered personal injury recoveries as separateproperty at the time the that Article 16, § 15 of the TexasConstitution was adopted. The Court also concluded thatthe term “property” as used in Article 16, § 15 did notinclude lawsuits for personal injuries when theConstitution was adopted. As a consequence, the Courtconcluded that the people of Texas did not intend to alterthe common law or Spanish law by adopting Article 16,§ 15. Thus, the Constitutional definition of separateproperty did not prohibit the Legislature from passing astatute which expressly stated what the framers of theConstitution had assumed all along.

4. Community Property. Since Texas recognizes only two forms of marital

property, the definition of separate property is notcomplete without a discussion of what constitutescommunity property. The Texas Constitutionacknowledges the existence of community property butdoes not expressly define community property. See Tex.Const. Art. 16, § 15. This is so because the definition ofcommunity property pre-dates the Texas Constitution.Before Texas gained its independence from Mexico, andbefore any of Texas’ Constitutions were enacted, Spanishlaw governed the marital property rights of people livingin Texas. Under the Spanish law tradition, communityproperty consisted of all property acquired by the spousesduring marriage exclusive of what the Spanish lawtradition considered was separate property. Thus, theTexas Constitution relies upon the long-standingdefinition of community property as being all propertyacquired during marriage and the constitutional definitionof separate property to define what is community



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property in Texas. Following the lead of the TexasConstitution, the Texas Family Code defines communityproperty in a negative fashion, defining it as “theproperty, other than separate property, acquired by eitherspouse during marriage.” Tex. Fam. Code § 3.002(O’Connor’s 2009-10).

Through case law the courts of Texas have definedcommunity property as: “all property and pecuniaryrights obtained by, or in the name of, either spouse aftermarriage, by toil, talent, thrift, energy, industry, or otherproductive faculty, and all the rents, issues, profits, fruits,and revenues of separate property. See Cartwright v.Cartwright, 18 Tex. 626, 1857 WL 5017 (1857); DeBlaine, 23 Tex. 25, 1859 WL 5017 (1859); Norris v.Vaughn, 152 Tex. 491, 260 S.W.2d 676, 501 (1953);Logan v. Logan , 112 S.W.2d 515, 525(Tex.Civ.App.—Amarillo 1938, no writ); see also Alsenzv. Alsenz, 101 S.W.3d 648, 654 (Tex.App.—Houston [1st

Dist.] 2003, pet denied). The foregoing definition ofcommunity property can be broken down into two basicprinciples. First, the community estate owns all propertyand rights acquired by the spouses’ time, toil, and talentduring the marriage. De Blaine, 23 Tex. 25, 1859 WL5017 (1859)(holding that law conclusively presumeseach spouse contributes in some way to the commonacquisitions of the marital estate); Norris v. Vaughn, 152Tex. 491, 260 S.W.2d 676, 501 (1953)(concluding thatthe community estate owns the time, toil, and talent ofthe spouses and is entitled to reimbursement when aspouse’s time, toil, and talent is used to enhance aspouse’s separate estate); Logan v. Logan, 112 S.W.2d515, 525 (Tex.Civ.App.—Amarillo 1938, nowrit)(concluding that husband and wife’s time, toil, andtalent expended in running a hotel business wascommunity property).

Second, the community estate holds a “usufructuryright” to all of the rents, issues, profits, fruits, andrevenues produced by each spouse’s separate propertyduring the marriage. See Cartwright v. Cartwright, 18Tex. 626, 1857 WL 5017 at * 2 (1857)(explaining that a“usufruct” is the right to use and enjoy, and receive theprofits of, property which belongs to another, and thecommunity estate’s “usufruct” includes all “fruits”produced by a spouse’s separate estate during marriageincluding such things as “timber, herbs, fruits, wool,milk, and the young of cattel . . .”); Blum v. Light, 81Tex. 414, 16 S.W. 1090, 1092 (1891)(ruling that theoffspring of separate property cattle were communityproperty); Avery v. Popper, 48 S.W. 572 (Tex.1898)(concluding that the offspring of separate propertyhorses were community property). McElwee v.McElwee, 911 S.W2d 182, 188-89 (Tex.App.—Houston[1st Dist.] 1995, writ denied)(holding that proceeds fromthe sale of timber cut off separate property lands werecommunity property). U.S. Fid. & Guar. Co. v. Milk

Prod. Assoc. of San Antonio, 383 S.W.2d 181, 182-83(Tex.Civ.App.—San Antonio 1964, writ ref’dn.r.e.)(holding that milk produced by a spouse running aseparate property dairy business, and using a separateproperty cows, was community property). Meshwert v.M e s h w e r t , 5 4 3 S . W . 2 d 8 7 7 , 8 7 9(Tex.Civ.App.—Beaumont 1976)(concluding thatrevenue earned by a separate property business wascommunity property), aff’d, 549 S.W.2d 383 (Tex. 1977).

5. Summary of Separate PropertyPulling all of the foregoing law together, assets that

are characterized as a spouse’s separate property include,but may not be limited to:

1. Assets owned or claimed prior to marriage.2. Gifts.3. Property acquired by devise or descent.4. Partitioned property/income.5. Personal injuries sustained during marriage, except

loss of earning capacity during marriage.6. Assets acquired from advances of separate debt.7. Mutations or exchanges of separate property.

B. Rules for Proving that Property is Separate.1. The Basic Rules

All property possessed by either spouse during or ondissolution of marriage is presumed to be communityproperty. See Tex. Fam. Code § 3.003(a). The partyseeking to rebut the presumption bears the burden ofproof and must establish by clear and convincingevidence that the property in question meets thedefinition of separate property. See Tex. Fam. Code §3.003(b); Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.1965). The “clear and convincing” standard is somethinggreater than the “preponderance of evidence” standard,but less than “beyond a reasonable doubt.” Clear andconvincing is the degree of evidence necessary toproduce in the mind of the trier of fact a firm belief orconviction about the allegations sought to be established.Tarver, 394 S.W.2d at 783. The requirement of clear andconvincing evidence is way of stating that the assertion(s)must be supported by factually sufficient evidence.Carter v. Carter, 736 S.W.2d 775 (Tex. App. - Houston[14th Dist.], 1987, no writ) citing Meadows v. Green, 524S.W.2d 509, 510 (Tex. 1975).

The characterization of property as “community” or“separate” is determined by the inception of title to theproperty. Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex.2001); Smith v. Buss, 144 S.W.2d 529, 532 (Tex. 1940).Inception of title occurs when a party first has the right ofclaim to the property. Strong v. Garrett, 148 Tex. 265,224 S.W.2d 471 (1949); Wierzchula v. Wierzchula, 623S.W.2d 730, 731 (Tex.Civ.App.—Houston [1st Dist.]1981, no writ). For example, if title is acquired before






















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marriage, then the property is separate. See Tex. Const.Art. 16, § 15; Tex. Fam. Code § 3.001. If title isacquired after marriage, then the property is communityunless it was acquired through gift, devise or descent. Id.

Any attempt to characterize property as “separate”or “community” begins with identifying the legal basisfor claiming that property is separate–i.e., it was ownedbefore marriage, or it was acquired during marriage bygift. Once you have identified the source of separateproperty, you must trace the separate property. Tracinginvolves establishing the separate origin of the propertythrough evidence showing the time and means by whichthe spouse originally obtained possession of the property.Smith v. Smith, 22 S.W.3d 140, 144 (Tex.App.–Houston[14th Dist.] 2000, no pet.). In the marital dissolutioncontext, tracing the property means that you must followthe separate property asset from the time it is identified(at the date of marriage or when received if duringmarriage) through the date of divorce.

For example, Mom gifted W cash which wasdeposited in a bank account; a portion of the cash giftwas used to acquire stock; the stock was then sold andthe sales proceeds were expended to acquire the parties’current residence. W has the burden to prove that thefunds used to acquire the residence stemmed from theoriginal cash gift.

2. Evidence Needed to Prove that Property is SeparateWhether an asset is separate or community property

is determined by the facts which, according to the rulesof law, give character to the asset. Hilley v. Hilley, 161Tex. 569, 342 S.W.2d 565, 568 (Tex. 1961). The factsthat trace an asset to its separate or community propertyorigin, may be proven by any competent evidence,including parole evidence, surrounding circumstances,and declarations of the parties. Foster v. Christensen, 67S.W.2d 246, 249 (Tex. Comm. App. 1934)(holdingapproved); Orr v. Pope, 400 S.W.2d 614, 617-18(Tex.Civ.App.–Amarillo 1966, no writ); Muran v.Muran, 210 S.W.2d 617, 618 (Tex.Civ.App.–Galveston1948, no writ).

a. Testimony of a SpouseIn Texas, a spouse is competent to testify as to the

source of property. See Burgess v. Burgess, 2007 WL1501117 (Tex. App. - Beaumont, 2007) citing Barh v.Korh, 980 S.W.2d 723, 730 (Tex. App. - San Antonio1998, no pet); Pace v. Pace, 160 S.W.d 3d 706, 714(Tex. App. - Dallas 2005, pet. denied); Holloway v.Holloway, 671 S.W.2d 51, 56 (Tex.Civ.App.–Dallas1983, writ dism’d); Newland v. Newland, 529 S.W.2d105, 107-08 (Tex.Civ.App.–Fort Worth 1975, writdism’d).

The open question is whether a spouse’suncorroborated testimony, which is not contradicted by

the other spouse, is sufficient to meet the clear andconvincing evidence test.

There are several cases which hold that a spouse’suncorroborated testimony is sufficient to rebut thecommunity property presumption if it is uncontroverted.Vannerson v. Vannerson, 857 S.W.2d 659, 670(Tex.App.–Houston [1st Dist.] 1993, writ denied);Holloway v. Holloway, 671 S.W.2d 51, 56(Tex.Civ.App.–Dallas 1983, writ dism’d); Newland v.Newland, 529 S.W.2d 105, 107-08 (Tex.Civ.App.–FortWorth 1975, writ dism’d).

In Vannerson v. Vannerson, a post-answer defaultjudgment was entered against husband when he failed toappear for trial. Vannerson, 857 S.W.2d at 663. The trialcourt’s property division was based on the testimony andtrial exhibits of wife. Id. at 667-70. Wife’s trial exhibitswere summaries of the evidence regarding hercharacterization of the parties’ separate and communityproperty and her proposed division of the parties’property. Id. at 667-68. On appeal, husband claimed thatthis evidence was insufficient to support the trial court’sproperty division. Id. at 667-70. The court of appealsaffirmed, concluding that wife’s uncorroboratedtestimony and trial exhibits were legally and factuallysufficient to support the trial court’s judgment. Id.

In Newland v. Newland, the Fort Worth Court ofAppeals addressed whether a spouse’s uncorroborated,but uncontroverted, testimony was sufficient to meet theclear and convincing evidence test. Newland, 529S.W.2d at 107-08. In that case, Mrs. Newland sought tooverturn the adverse finding of separate property becauseMr. Newland’s testimony was not corroborated byindependent documentation. Id. at 107. The courtrejected her argument stating:

To adopt the rule for which Mrs. Newlandcontends would be to deny justice in a greatnumber of cases, indeed in nearly all where thefacts are within the knowledge of only onespouse. Of course the fact finder would beentitled to disbelief and refuse to find for thespouse having knowledge and testifying, but ininstances where he is believed and the findingmade for him a judgment based thereuponshould not be disturbed because of a lack ofcorroboration of his testimony.

Id. at 108. Thus, some courts have allowed a trial courtto base a finding of separate property on a spouse’suncorroborated testimony when the testimony has notbeen contradicted.

However, the careful practitioner should not rely onthe foregoing cases in preparing his or her case for trialor summary judgment because there are several casesdecided by other courts of appeals, and even different


















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panels of the same court of appeals, which reach anopposite result. See Pace v. Pace, 160 S.W.d 3d 706,714 (Tex. App. - Dallas 2005, pet. denied); Boyd v. Boyd,131 S.W.3d 605, 612 (Tex.App.–Fort Worth 2004, nopet.); Ganesan v. Vallabhaneni, 96 S.W.3d 354, 354(Tex.App.–Austin 2002, no pet.); Bahr v. Kohr, 980S.W.2d 723, 728-730 (Tex.App.–San Antonio 1998, nopet.); McElwee v. McElwee, 911 S.W.2d 182, 188(Tex.App.–Houston [1st Dist.] 1993, writ denied);Hilliard v. Hilliard, 725 S.W.2d 722, 723(Tex.App.–Dallas 1985, no writ).

These cases generally hold that “mere testimony thatproperty was purchased with separate property funds,without any tracing of the funds, is generally insufficientto rebut the [community property] presumption.” SeeMcElwee, 911 S.W.2d at 188, citing Schmeltz v. Garey,Tex. 49, 60-61 (Tex. 1878).

For example, In re Marriage of Smith, 2003 WL22715581 (Tex. App. - Amarillo, 2003), documentationwas provided which showed that H had brought separateproperty into the marriage, and his testimony showed thatduring marriage, he received gifts from his parents. Insupport of his separate property claims, H provided aDecember 1992 account statement, an accountapplication dated May 1992, a request for the transfer ofassets dated May 1992, and retirement statements marked“closed out June 1992." The documents were almost sixyears after the marriage and did not provide anyinformation identifying the source or origin of theproperty or when it was originally obtained. Wchallenged the trial court’s finding that $15,111 of anAmerican Funds account and $26,623 of the AmericanFunds IRA account were H’s separate property. Thecourt stated that the testimony of the spouse claiming thatthe property was acquired with separate property funds,without any tracing of the funds, is generally insufficientto rebut the community presumption.

b. Documentary Evidence To put your best foot forward, you must attempt to

obtain documentation from third parties, acknowledgeddocuments, or those filed under penalties of perjury (e.g.,tax returns). The more objective the information, themore likely the trier of fact will view the separateproperty claims as credible and supportable. Sometimes,the client may have documents which will show whenand how the separate property was acquired; other times,the information may need to be requested from thirdparties or reverse-engineered. Of course, do not overlookpersons with knowledge that would be able to testifyabout the property of interest. Below are documentswhich will assist in the proof of separate property.

i. Real EstateRealty is characterized based upon when the party’s

right to the acquire the property was established, i.e.when he signed the earnest money contract/paid the downpayment. Carter v. Carter, 736 S.W.2d 775. However,if the earnest money contract was executed after the dateof marriage, Gleich vs Bongio, 128 Tex. 606, 99 S.W.2d881 (Tex. 1937) applies and the character of the propertyis determined based upon the dollars used to acquire theproperty.

Ownership can be shown via deed and/or settlementstatement from the title company. Other records whichmay reflect ownership are property tax receipts or theownership history from the county appraisal districtwebsite which assessed property taxes. The appraisaldistrict’s website will often allow you to search byaddress, property tax identification number, owner name,etc. After the property information has been accessed,some districts will provide ownership history for anumber of owners or multiple years. If not listed below, use your favorite search enginesto locate the county appraisal district website. Forexample:

• H a r r i s C o u n t y A p p r a i s a l D i s t r i c t(http://www.hcad.org) – select ownership history onthe top portion of the screen, it provides theownership history for multiple years.

• D a l l a s C e n t r a l A p p r a i s a l D i s t r i c t(http://www.dallascad.org) – click the history optionat the bottom of the page and it provides theownership history for multiple years.

• Tarrant Appraisal District (http://www.tad.org) –after you access the property description, the sitewill provide you with the three prior owners.

ii. Bank or Brokerage Accounts Request copies of statement close-in-time to the date

of marriage. Banks or brokerage houses will have limitedtime periods during which the information is available online and on microfiche. See the bank account discussionbelow.

iii. StocksStocks owned prior to marriage are that spouse’s

separate property. Characterization of stocks acquiredafter the date of marriage is based upon the considerationpaid to acquire the shares. Texas community propertylaw treats stock dividends and stock splits the same:shares received from stock splits or stock dividends arethe same character as the underlying shares. Tirado v.Tirado, 357 S.W.2d 468 (Tex. Civ. App - Texarkana1962, writ dism’d)

If a company has a sizeable amount of retainedearnings, the market value of its shares is likely toincrease. The higher the price of stock, the less readily it












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can be purchased, i.e. reduces the company’s ability toraise additional capital. A stock split is the result of acompany’s decision to increase the number of shares thatare outstanding with the general goal of reducing thestock price in order to attract additional investors. Forexample, H had 1,000 shares of Company stock.Company had 5,000,000 shares outstanding which werepriced at $50 per share. Company decides to effect a 2:1stock split, so H now owns 2,000 shares and Companyhas 10,000,000 shares outstanding and the share price isreduced to $25 per share. Before the split, H’s 1,000shares were worth $50,000; after the split, H’s 2,000shares are still worth $50,000.

When a company wants to capitalize a portion of itsearnings (reclassify retained earnings to contributedcapital) and thereby allow the company to retain itsearnings instead of paying out cash dividends, thecompany may issue stock dividends to its shareholders.As in the stock split, after the stock dividend, eachshareholder retains his/her proportionate interest in thecorporation.

To prove up the separate estate ownership, requestorganizational documents, corporate records, or minutesfor closely-held entities which may report the number ofshares owned by Spouse. If publicly-traded, look tobrokerage statements or trade confirmations. If theshares are not certificated, or if the brokerage statementsor trade confirmations are not available, you may be ableto “reverse engineer” the number of shares a spouseowned at a particular time based upon the dividendsreceived. For example, assume that Spouse owns sharesof a publicly-traded stock and the stock pays dividends.The dividends will be evidenced by deposits, Form 1099-DIV which reports dividends paid to Spouse, anddividend income reported on Schedule B of Spouse’sfederal income tax return Form 1040. Divide thedividend income by the dividend paid-per-share tocalculate the number of shares held at a particular time.The dividend history can be obtained online via Yahoo!Finance or other similar website, via investor reports ofthe company, financial statements issued by thecompany, or Standard & Poor’s Annual DividendRecords.

iv. Oil and Gas Properties or InterestsAssuming that mineral interest is separate property:

• royalty income is separate property because therevenue from the extraction of oil or gas isequivalent to a piecemeal sale of the separatecorpus. Norris v. Vaughn 152 Tex. 491, 260S.W.2d 676, 679 (1983).

• delay rentals are community property because theydo not depend upon the finding or production of oiland gas and do not exhaust the separate corpus.

McGarragugh v. McGarraugh, 177 S.W.2d 296,301(Tex. Civ. App. - Amarillo 1943, writ dism’d).

Ownership may be shown via mineral deeds anddivision orders which may be obtained via the propertyrecords or, if the interest is significant, consider retaininga landman who will do a search for you. Royalties mayalso be reported on Form 1099-MISC and detail of theinterests may be included on royalty checks issued by theoperator. Expenses on interests for drilling/depreciationmay be reported on income tax returns. The date thatroyalties were earned or expenditures were incurred mayshow the interests were acquired prior to marriage.

v. GiftsA gift is a transfer of property made voluntarily and

gratuitously, without consideration. Hilley v. Hilley, 161Tex. 569, 342 S.W.2d 565, 569 (Tex. 1961); Ellebrachtv. Ellebracht, 735 S.W.2d 658, 659 (Tex. App. - Austin1987, no writ). Keep in mind that the three elementsnecessary to have a gift: (i) intent to make a gift; (ii)delivery of property; and (iii) acceptance of the property.Hayes v. Rinehart, 65 S.W.3d 286, 289 (Tex. App. -Eastland 2001, no pet.). Gifts may be evidenced by trust agreements, notesor cards written when the gifts were made, testimony, andthey may be reflected in Form 709 United States Gift(and Generation-Skipping Transfer) Tax Return. Giftsmay not be reported on the returns because the giftedamount was valued below the exclusionary amount or thedonor may not have filed the return.

vi. Inherited PropertyGenerally, when a person dies the

heirs/legatees/devisees’ interest in the estate of thedeceased vests immediately, although their interest issubject to the debts of the testator or intestate. TexasProbate Code §37. Upon the issuance of letterstestamentary or administration of the estate, the executoror administrator shall have the right to possess the estate.Id. The executor/administrator holds legal title and asuperior right to possess estate property and to dispose ofit as necessary to pay debts of the estate. Gorham v.Gates ex rel. Estate of Baouh, 82 S.W.3d 359, 365 (Tex.App. - Austin, 2002, pet. denied). Until the administratorpays all debts owned by the estate and distributes theproperty, beneficiaries do not actually hold legal title tothe devised property. Woodward v. Jaster, 933 S.w.2d777 (Tex. App. - Austin 1996, no writ). Thus, if theadministrator exercises his power to dispose of estateproperty to pay debts of the estate, the sale of theproperty divests the beneficiary of his interests in theproperty. Gorham v. Gates ex rel. Estate of Baouh, 82S.W.3d 359, 365-366 (Tex. App. - Austin, 2002, pet.denied).











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Inherited property may be evidenced bytestamentary trusts, wills, other probate documents, Form706 United States Estate (and Generation-skippingTransfer) Tax Return, and testimony from persons withknowledge.

When a spouse claims that an asset is separateproperty because it was acquired during marriage bytestamentary gift or devise, the spouse discharges his orher burden to trace the separate property character of theasset by introducing a copy of the last will and testamentor trust document which makes the gift or devise, andthen introducing evidence showing the transfer orconveyance of the asset from the testator or settlor’sestate to the inheriting spouse. See, e.g., Orr v. Pope,400 S.W.2d 614, 616-18 (Tex.Civ.App.–Amarillo 1966,no writ).

In Orr v. Pope, the heirs of husband brought suitagainst the heirs of wife seeking title to a piece of realproperty. During marriage, husband’s mother and fatherdied. At the time of his father’s death, husband enteredinto an agreement with the other heirs of father to swapportions of each heirs’ inheritance in order to settle theestate. Several deeds were executed to settle the estateand husband received title to the surface and mineralestates of a piece of real property. Later, husbandpredeceased wife. After wife died, the heirs of husbandand wife disputed whether the interests in real propertybelonged to husband’s separate estate or the communityestate. The heirs of husband moved for summaryjudgment. Copies of the last will and testament anddeeds were attached to the motion, along with sworntestimony, in the form of affidavits and depositionstranscripts, to prove the circumstances surrounding theexecution of the deeds. The trial court granted summaryjudgment declaring that the real property belonged tohusband’s separate estate. Heirs of wife appealed. Thecourt of appeals affirmed holding that the evidenceconclusively established that the surface estate andmineral interests were acquired through devise or descentand were therefore husband’s separate property. Id., 400S.W.2d at 616-18.

vii. Separate Debt AdvancesDebts contracted during marriage are presumed to

be on the credit of the community, unless it is shown thatthe creditor agreed to look solely to the separate estate ofthe contracting spouse for satisfaction. Cockerham v.Cockerham, 527 S.W.2d 162 (Tex. 1975) citingBroussard v. Tian, 156 Tex. 371, 295 S.W.2d 405 (1956)and Gleich vs Bongio, 128 Tex. 606, 99 S.W.2d 881(Tex. 1937).

In order to prove that an asset is separate property,because it was acquired with separate property creditduring marriage, the purchasing spouse must prove thatthe lender agreed to look solely to the separate estate of

the purchasing spouse for satisfaction of theindebtedness. See Broussard v. Tian, 156 Tex. 376, 295S.W.2d 405 (1956), cert. denied, 353 U.S. 941, 77 S.Ct.811, 1 L.Ed.2d 758 (1957); Gleich v. Bongio, 128 Tex.606, 99 S.W.2d 881, 886 (1937); see also Jones, 890S.W.2d at 475; Welder v. Welder, 794 S.W.2d 420, 427-28 (Tex.App.–Corpus Christi, no writ); Holloway v.Holloway, 671 S.W.2d 51, 56-57 (Tex.App.–Dallas 1983,writ dism’d); Price v. Service Bureau, Inc., 165 S.W.2d794, 796 (Tex.Civ.App.–Amarillo1942, writ ref’dw.o.m.).

It is not enough for the purchasing spouse to claimthat the down payment was made with separate propertyand the purchasing spouse intended all of the deferredpayments to be paid with his or her separate property.Welder, 794 S.W.2d at 427-28. Rather, the purchasingspouse must prove that the down payment was made withseparate property and that the lender agreed to look onlyto the purchasing spouse’s separate estate for therepayment of the loan. Id. As a result, any direct orcircumstantial evidence tending to prove or disprove thelender’s agreement to look solely to the separate estate ofthe purchasing spouse is the most important evidence toproving or disproving this type of separate propertyclaim.

A few examples will help explain the type ofdocuments you should gather to prove that an asset waspurchased with separate property debt:

In Jones v. Jones, husband purchased three treasurynotes with proceeds from a loan secured by a certificateof deposit. 890 S.W.2d at 474-76. Husband claimed thatthe notes, or part of them, were his separate propertybecause the certificate of deposit was his separateproperty. The note and loan application were admittedinto evidence, but they were silent as to whether the bankagreed to look only to the certificate of deposit and/orhusband’s separate estate for repayment. The jury foundin favor of husband. Wife appealed. The court ofappeals reversed because it found no evidence indicatingthat the bank had in anyway limited itself to lookingsolely to the certificate deposit or husband’s separateestate for repayment of the loan. 890 S.W.2d at 474-76.

In Glover v. Henry, the decedent inherited a 1/14thinterest in a piece of real estate. 749 S.W.2d 502, 503(Tex.App.–Eastland 1988, no writ). The decedent boughtthe remaining 13/14th interest from his mother andsiblings, signing a note for $1,500 to finance thepurchase. The deed recited that the down payment wasmade from the decedent’s separate estate. A release waslater executed which recited that the decedent had paidthe note, and that all payments were made from thedecedent’s separate property. Plaintiffs sought to provethat the piece of real estate was community property,defendant sought to prove that the real estate wasseparate property. The jury found in favor of defendants.




















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Plaintiffs appealed. The court of appeals concluded thatthe deed and release were sufficient evidence to allow thejury to infer that the lender agreed to look solely to thedecedent’s separate estate for repayment of the loan.However, the case was reversed and remanded becausethe jury charge erroneously instructed the jury that thefacts recited in ancient documents, such as the deed andrelease, were prima facie proof of the facts contained inthose documents. 749 S.W.2d at 502.

In Holloway v. Holloway, husband asserted that thestock in a pipeline company was his separate propertybecause he purchased the stock during marriage pursuantto a loan made to his separate estate. 671 S.W.2d at 56.The evidence showed that a bank loaned husband thesum of $10,000 and placed it into an account calledhusband’s “separate property” account. Husbandtestified that he used these funds to purchase the stock inquestion. The loan papers were admitted into evidence.Although the loan papers did not include an expressagreement wherein the bank promised to look solely tohusband’s separate estate for repayment of the loan, theloan papers did include several pieces of evidenceindicating that the bank agreed to look to the separateestate of husband for repayment of the loan. There wasa promissory note and security agreement each signed“[husband], Separate Property.” There was a written“statement of purpose” for the loan which stated that theloan was made so that husband could invest in thepipeline venture, again signed by husband in his“Separate Property” capacity, and certified by the bankofficer. Finally, there was an affidavit signed by husbandwhich swore that the collateral listed in the securityagreement was property he acquired before his marriageto wife and he acknowledged that the bank would berelying on his testimony in making the loan to husband’sseparate property account. The jury found that the stockwas husband’s separate property. Wife appealed. Thecourt of appeals affirmed, holding that the foregoingevidence was sufficient to support a finding that the bankagreed to look solely to the husband’s separate estate forrepayment of the loan and therefore the stock purchasedwith the loan proceeds was husband’s separate property.671 S.W.2d at 57.

In Beeler v. Beeler, husband owned a ranch beforem a r r i a g e . 3 6 3 S . W . 2 d 3 0 5 , 3 0 6 - 0 8(Tex.Civ.App.–Beaumont 1962, writ dism’d). Duringthe marriage, husband sold the ranch for $50,000,$16,000 of which was put up as a down payment, and thebalance paid through a note for $34,000 plus 5% interest.On the day the ranch was sold, husband executed a loanwith bank for $15,000. The payments on the $15,000loan were timed so they were due on the exact day thepayments on the $34,000 ranch note were due tohusband. Husband then used the$15,000 loan proceeds,along with $9,000 of the down payment from the sale of

the ranch, to purchase a house and 18 acres of land.Husband and wife filed for divorce. Husband claimedthe house and 18 acres as his separate property. The casewas tried to the court. The trial court found that thecommunity estate was secondarily liable on loan for thehouse and 18 acres, and that there was no reasonablepossibility that a resort to the community estate wouldever have been necessary to obtain repayment of the loan.Wife appealed. On appeal, the court of appealsconcluded that there was no question that husband’sseparate estate owned 9/24 of the house and 18 acres dueto fact that house and acreage was bought in part with$9,000 from sale of husband’s separate property ranch.However, the court of appeals disagreed with the trialcourt that the remainder of the interest in the house andacreage (i.e., 15/24) was husband’s separate property.The court of appeals concluded that evidence showingthat the community estate was only secondarily liable onthe loan, or not likely to have ever been called upon torepay the loan, was not the same as evidence proving thatthe bank agreed to look solely to husband’s separateestate for repayment of the loan. Thus, the court ofappeals concluded that the community estate owned15/24ths of the house and acreage. It should be noted,however, that the court of appeals eventually concludedthat husband had a reimbursement claim for all paymentsmade on the house and 18 acres because the paymentschedule of the ranch and house loans, and course ofconduct of the parties (i.e., taking payment from ranchnote and depositing it into a joint account on the day thepayment on house loan was due), proved that allpayments on house and acreage were made by husband’sseparate estate. 363 S.W.2d at 306-08. viii. Mutations

To maintain the character of separate property, it isnot necessary that the property be preserved in specie orin-kind; it may undergo mutations and changes and stillremain separate property–so long as it can be clearly andsatisfactorily traced and identified to its separate origin,its distinctive character will remain.

Example: H owned a separate property house(House 1) which had an outstanding mortgage balance.W acknowledges that the property was owned by H priorto marriage. The home was insured, which was fortunate,because during marriage a flood occurred and damagedthe home. Insurer pays funds to H. H sells the separateproperty house; he uses the sales proceeds along with aportion of the insurance proceeds to purchase House2.What is the character of House 2? House 2 would be H’sseparate property.

The court in Burgess v. Burgess, 2007 WL 1501117(Tex. App. - Beaumont, 2007) dealt with this issue.There, the court found that the residence was separateproperty because the evidence was sufficient to







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demonstrate that the residence was H’s separate property.Burgess v. Burgess, 2007 WL 1501117 (Tex. App. -Beaumont, 2007). Citing Texas Family Code §3.008(a),which provides that insurance proceeds paid or payablethat arise from a casualty loss to property duringmarriage are characterized in the same manner as theproperty to which the claim is attributable, the courtopined that the proceeds were also H’s separate propertybecause the proceeds from a casualty insurance paymenttakes on the character of the insured property. Id.

c. Tracing Rules If separate property funds were deposited in an

account that also contains community property funds, isall lost for the spouse asserting separate property? No.A showing of community and separate funds depositedin the same account does not divest the separate funds oftheir identity and establish the amount as communitywhen the separate funds may be traced. Holloway v.Holoway, 671 S.W.d2 51, 60 (Tex. App. - Dallas 1983,writ dism’d); Harris v. Ventura, 582 S.W.2d 853, 855(Tex.Civ.App. - Beaumont 1979, no writ).

Fortunately for all of us, this does not mean that youor the client will have to track the serial number of eachbill. One dollar has the same value as another and underthe law there can be no commingling by the mixing ofdollars when the number owned by each is known.Welder v. Welder, 794 S.W2d 420 (Tex. App. - CorpusChristi, 1990) citing Trawick v. Trawick, 671 S.W.2d105, 110 (Tex. App. - El Paso 1984, no writ) and Farrowv. Farrow, 238 S.W.2d 255, 257 (Tex. Civ. App. - Austin1951, no writ). Cash is a fungible item but it can betraced, even though separate property cash is depositedin an account that also had community property funds.Sibley v. Sibley, 286 S.W.2d 657 (Tex. Civ. App. - Dallas1995, writ dism’d, no pet.).

Experts can use various methods to trace theseparate property cash. Generally, cash can be traced ina detailed approach, as in a line item tracing, or a moreaggregate approach, as in minimum sum balance. Underthe line item tracing method, the deposits andwithdrawals reported on bank and brokerage statementsare entered line-by-line, presented in date order, anddeposits are usually shown before disbursement fortransactions in a particular day. Transactions are enteredbased upon when cash clears the account or the reportedsettlement date. Bank and brokerage statements are usually availableonline or may be requested from the bank or brokeragehouse if the client does not have those documents. Beaware that there are fees associated with requesting theinformation from the bank; we are noting that more andmore institutions are shortening the amount of timedocuments are retained, so some of the statements forlonger-term marriages may not be available. When

statements are not available, check registers, checkcopies, deposit slips, wire transfer records and otherrecords may be used to recreate the account activity.

Example: Assume a joint bank account contained$50,000 community property on Day 1–

+ On Day 2 $100,000 of community propertywas deposited in the account.

+ On Day 3, $125,000 cash gift (separateproperty) was transferred into the account.

= At the end of Day 3, the account had a balanceof $275,000.

– On Day 4, $100,000 was withdrawn from theaccount to purchase shares of ABC, Inc.

= The balance in the account after the withdrawalis $175,000.

What would be the character of the ABC, Inc. shares andthe character of the $175,000 remaining in the accountafter the withdrawal? The answers depends upon whichmethod of tracing is used.

i. Community Out FirstThis is the most common method of tracing we

encounter. Sibley v. Sibley, 286 S.W.2d 657 (Tex. Civ.App. – Dallas 1955, writ dism’d) (per curiam) is theoften-cited case and viewed by some as the case whichestablished the acceptability of such a method. In Sibley,H deposited W’s separate property cash in an accountthat contained community property funds. On October11, a 160-acre farm was acquired with $1,929.08 cashwithdrawn from the account and a note for the balance.In determining the character of the farm, the court had todetermine which funds were withdrawn. The court statedthat “[e]quity impresses a resulting trust on such funds infavor of the W and where a trustee [H] draws checks ona fund in which trust funds are mingled with those of thetrustee, the trustee is presumed to have checked out hisown money first,...” Sibley at 659. “The communitymoneys in joint bank account of the parties are thereforepresumed to have been drawn out first, before theseparate moneys are withdrawn.” Id.

Under the hypothetical, if the community out firstmethod is used, the ABC, Inc. shares would be 100%community property; the remaining balance is $50,000community property and $125,000 separate property.

ii. Separate Out FirstIn Smith v. Smith, 22 S.W.2d 140 (Tex. App. -

Houston [14th District], 2000) the separate out firstmethod was referenced. The court there appears tosuggest that the party seeking to use a method other thancommunity out first has the burden of citing evidence toapply another method. What evidence or factors woulda court consider sufficient to justify using something










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other than community out first method? Would it matterto the court what the account was primarily used for, i.e.to pay living expenses? If separate out first is used, thenthe spouse loses his/her separate property if there is noreimbursement for living expenses.In Smith, the court stated that evidence revealed that theaccount in dispute received both community funds andH’s separate funds. Id., 22d S.W.3d at 145-146. Indetermining that the balance in the account was H’sseparate property, the court stated:

[g]enerally, when separate property andcommunity property are commingled in asingle bank account, we presume that thecommunity funds are drawn out first, beforeseparate funds are withdrawn, and where thereare sufficient funds at all times to cover theseparate property balance in the account at thetime of divorce, we presume that the balanceremains separate property. The onlyrequirement for tracing and the application ofthe community out first presumption is that theparty attempting to overcome the communitypresumption is that the party attempting toovercome the community presumption produceclear evidence of the transactions affecting thecommingled account.

Id, citing Welder v. Welder, 794 S.W.2d 420, 433-434(Tex.App. - Corpus Christi 1990, no writ); Horlock v.Horlock, 533 S.W.2d 52, 58 (Tex. Civ. App. - Houston[14th Dist.] 1975, writ dism’d w.o.j.; but cf. Goodridge v.Goodrige, 591 S.W.2d 571, 573 (Tex. Civ. App. - Dallas1979, writ dism’d wo.o.j).

The court further stated that the community out firstpresumption is a rebuttable one; however, W did not citeevidence to rebut the presumption. Smith, 22d S.W.3d at147. In a footnote, the court also stated:

...a blind application of the community out firstpresumption does not uphold the policy reasonfor the presumption’s original application...InSibley, the question involved the Husband’sspending funds from an account in whichcommunity funds had been commingled withthe Wife’s separate funds. The application ofthe community out first presumption thuspreserved the Wife’s separate estate. Here,however, mechanical application of thecommunity out first presumption leads to theHusband preserving his separate estate at theexpense of the community. Were we to viewHusband as a trustee acting in the best interestof the beneficiary, we would apply not thecommunity out first presumption, but a

separate out first presumption. We wouldpresume Husband spent his own funds beforespending the community funds thus leavingcommunity funds in the account for possibledisbursement to the beneficiary–the Wife–upondissolution of the marriage. Husband wouldhave the burden of rebutting the separate outfirst presumption. We apply the communityout first presumption because it seems to beestablished law.

Id.

Under the hypothetical, the ABC shares would be100% separate property, and the remaining balance in theaccount would be $150,000 community property and$25,000 separate property.

iii. Pro RataUnder the pro rata approach, when an account

contains both community funds and separate funds, thewithdrawals are presumed to be made pro rata inproportion to the balance in the account. Shelly D.Merritt, Planning for Community Property in Colorado,31 Jun Colaw 79,80 (2002).

In the hypothetical, the balance in the account priorto the withdrawal was 55% community property($150,000/$275,000) and 45% separate property. TheABC shares would be a mixed character asset: 55%community property and 45% separate property; thepercentages also apply to the remaining cash balance:$95,455 community property and $79,545 separateproperty. Assume also that the next deposit of $25,000was separate funds. After the deposit, the accountbalance is $200,000, of which the community amount isstill $95,455 and the separate amount is $104,545 (48%and 52%, respectively). The withdrawal thatimmediately follows the transaction would be in the sameproportion, i.e 48% community property and 52%separate property.

iv. IntentThe best discussion of this method of tracing is

Richard Orsinger’s paper titled “Different Ways to TraceSeparate Property” which was presented at the 35th

Annual Advanced Family Law Course in August 2009. Under this approach, the client and/or the expertwould determine the characterization of the withdrawalsbased upon the client’s intent. To lend credibility to aspouse’s testimony regarding intent, attempt to obtainsupporting documents such as written notes around thetime of the transaction, communications with thirdparties, or other evidence which supports the intent. Thechallenge in relying on intent is that the client or yourexpert will need to explain the story(ies) regarding the





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various types of withdrawals that occurred–why the otherwithdrawals were intended or not intended to be fundedwith separate funds. In our simple hypothetical, it maybe easy to explain the intent or the history of the accountsince it contains limited transactions; however, wherethere are thousands of transactions in a single accountused for multiple purposes, the task is more challenging.

v. Clearing House and Identical Sum InferenceUnder the clearinghouse method, after one or more

identifiable sums of separate funds are temporarilydeposited into one account and then those identifiablesums are withdrawn, the withdrawals (and whatever wasacquired with those funds) are treated as separateproperty. Similar to the clearinghouse method, theidentical sum inference method involves only one depositrather than a group or series of deposits. Issues arise inthis method when the amounts of the deposit or thewithdrawal are not exact or when the deposit and theasserted related withdrawal do not occur close in time. Inour example, the ABC shares would be entirelycommunity property if the $100,000 withdrawal isassociated with the $100,000 deposit on Day 2. What ifthe other spouse asserts instead that the $125,000 depositof separate funds on Day 3 was made in anticipation of,and was for the sole purpose of, the purchase of theshares on Day 4–should the shares be characterized asseparate property instead? “Identical sum” does notalways mean exact amount.

vi. Minimum Sum BalanceThe minimum sum balance method would likely be

the least expensive method of tracing cash (in terms ofprofessional fees) because as long as the cash balance inthe bank account does not fall below the separateproperty cash deposited into the account, the separateproperty funds are presumed to remain in the account.This method should result in the same characterization asthe community out first method because the communityfunds are drawn out first, and as long as the balanceremaining in the account is equal to or less than theseparate fund deposited, the balance has to be theseparate funds. A disadvantage of using the minimum sum balancemethod is that if the separate property deposit(s)exceeded the remaining balance in the account, theseparate property cash withdrawn is not accounted for.Additionally, if statements for the relevant periods aremissing or otherwise unavailable, the minimum sumbalance method may not be successful in showing thatthe separate funds were not depleted during the missingperiod(s) and therefore the remaining separate funds maynot be proven to the satisfaction of the trier of fact.

vii. Exhaustion Method/Family Expense MethodThis method is more fully explained in a paper by

Joan F. Kessler, Allan R. Koritzinsky, and Marta T.Meyers, titled, Tracing to Avoid Transmutations, andfound in 17 JAMAML 371, 375 (2001). See alsoRichard Orsinger’s paper titled “Different Ways to TraceSeparate Property” which was presented at the 35th

Annual Advanced Family Law Course in August 2009.The approach assumes that all family living expense areto be charged against community funds. The separatecharacterization can be established by showing that on aparticular date a withdrawal occurs, the community fundswere already exhausted on payment of family livingexpenses. Under this method, the community money willbe used to pay family expenses before separate moneywill be used for family expenses. Therefore, it is notnecessary to document every deposit and everyexpenditure as it occurred–no running balance isrequired. All of the family money that went into theaccount, up to the date in question, is calculated. Thenall of the family expenses that were paid out of theaccount in the same time period are computed. If thefamily expenses are equal to, or greater than, the familyincome, what is left is separate property. Hence, theremainder of the account at the date or the assetpurchased on that date with the “leftover” separatemoney is separate property.

In Zagorski v. Zagorski, 116 S.W.3d 309 (Tex. App.- Houston [14th Dist.] 2003, pet denied), W challengedthe trial court’s determination that H had separate fundsin a disputed account, and she asserted that the fundsshould have been community property since the accountwas commingled. H provided evidence showing theseparate balance prior to marriage, the interest incomeearned from the account during marriage of $115,000,and a listing of withdrawals made for living expensesduring the same period of $366,000. Zagorski, 116S.W.3d at 320. The court noted that W did not provideevidence rebutting the community out first presumptionand decided that, because the withdrawals for communityexpenses depleted community funds in the account, Hrebutted the statutory presumption that the account wasa community asset. Id. at 321.

What is considered a living expense? “Needs” arearguably a living expense, but are “wants” or luxuriesconsidered living expenses? Would there be a limit onthe number of vehicles? Are charitable donationsconsidered living expenses? Are there limits on spendingfor clothing or other items–does it vary with the size ofthe potential community estate?

viii. Maximum CommunityDuncan v. United States, 247 F.2d 845 (5th Cir.

1957) involved an action where co-executors soughtrecovery of a portion of the estate taxes paid. The




http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=US_5thcircuit&volume=247&edition=F.2d&page=845&id=126413_01


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Commissioner of the Internal Revenue Servicedetermined that various assets were separate property.The estate asserted that the records did not indicate howthe disputed assets were acquired and, therefore, thecommunity presumption should apply and the disputedassets should be characterized as community property.It was acknowledged that H had significant separateproperty. The records reflected that for the periodbetween 1947-1949, the total possible communitysources of income totaled approximately $17,000 afterdeductions for income taxes. Information regardingdisbursements for living and household expenses was notestablished. The court stated that there was no othersource whatever from which presumed communityproperty funds were available to acquire the disputedassets; therefore, the total community interest in thedisputed assets could not exceed the approximate$17,000, assuming that all of the income available forspending was used to accumulate the assets in question.

d. Rules Regarding Bank Accounts and AssetsPurchased with Funds from Bank AccountsMost separate property assets, either when initially

acquired or sometime later in the chain of exchanges,takes the form of cash, and almost inevitably the cash isdeposited in a bank or brokerage account. A few issuesto keep in mind regarding bank accounts and certificatesof deposits:

i. there is a presumption (though it may be rebutted)that when a spouse uses separate property to acquirean asset during marriage and takes title to thatproperty in the names of both spouses, apresumption arises that the purchasing spouseintended to make a gift of one-half of the separatefunds to the other spouse. Cockerham v.Cockerham, 527 S.W.2d 162, 168 (Tex. 1975). Thecommon law presumption of gift was applied topurchase of real estate and homesteads, though itwas later broadened to other types of assets wherethere is a title or owner or record, i.e. bank accounts.In re Marriage of Case, 28 S.W.3d 154, 158 (Tex.App. - Texarkana 2000, no pet.). In 1979, theNontestamentary Transfers Chapter of the TexasProbate Code was adopted and it had the effect ofoverriding the common law gift presumption onaccounts: it provided that money in joint accountsbelongs to the parties in proportion to the netcontributions by each to the sums on deposit, unlessthere is clear and convincing evidence of a differentintent. Id at 159, citing Texas Probate Code §438(a).

ii. A pay on death (POD) account belongs to theoriginal payee during his lifetime and not to thePOD payee(s). Texas Probate Code §438 (b).

iii. The mere deposit of community funds in a jointaccount does not effectuate a partition of communityfunds. Tuttle v. Simpson, 735 S.W.d 2d 539 (Tex.App. - Texarkana 1987, no writ).

VI. OTHER MAJOR USES OF MSJs Now that we have covered the use of summaryjudgment to prove separate property claims, thediscussion can move to the other uses of summaryjudgment in family law cases. A. Traditional MSJs

Texas Rule of Civil Procedure 166a(a) provides that:

A party seeking to recover upon a claim,counterclaim, or cross claim or to obtain adeclaratory judgment, may, at any time afterthe adverse party has appeared and answered,move with or without supporting affidavits fora summary judgment in his favor upon all orany part thereof.

A summary judgment motion under this section of rule166(a) is called an affirmative or traditional motion forsummary judgment. It is almost always filed withsupporting affidavits and exhibits attached. Summaryjudgment may apply not only to civil litigation issuessuch as personal injury or contracts but also to any of thevarious claims that may be brought in family lawlitigation, involving either property or conservatorshipissues. Some of the more common family law issues thatmay be well suited for summary judgment are discussedbelow:

1. Enforcement of Pre-, Post- and Marital AgreementsUnder Texas law, a prenuptial agreement (as well as

marital property agreements) will be upheld and enforcedby the court unless the party against whom enforcementis requested proves that the contract was not signedvoluntarily, or that the agreement was unconscionableand the other party’s finances were not disclosed orwaived, pursuant to §4.006 of the Texas Family Code:

(a) A premarital agreement is not enforceable if theparty against whom enforcement is requested provesthat:

(1) the party did not sign the agreementvoluntarily; or

(2) the agreement was unconscionable when it wassigned and, before signing the agreement, thatthe party:




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(A) was not provided a fair and reasonabledisclosure of the property or financialobligations of the other party;

(B) did not voluntarily and expressly waive,in writing, any right to disclosure of theproperty or financial obligations of theother party beyond the disclosureprovided; and

(C) did not have, or reasonably could nothave had, adequate knowledge of theproperty or financial obligations of theother party.

(b) An issue of unconscionability of a premaritalagreement shall be decided by the court as a matterof law

(c) The remedies and defenses in this section are theexclusive remedies or defenses, including commonlaw remedies or defenses.

Tex. Fam. Code § 4.006 (2010)

Public policy dictates the enforcement of premaritalagreements. Beck v. Beck, 814 S.W.2d 745, 749 (Tex.1991). Therefore, these agreements are presumptivelyvalid. Grossman v. Grossman, 799 S.W.2d 511, 513(Tex. App. – Corpus Christi 1990, no writ). Theappellate court trend has been to uphold theseagreements. The party challenging the enforceability ofthe agreement bears the burden of proving the agreementwas entered into involuntarily or that it isunconscionable. Pletcher v. Goetz, 9 S.W.3d 442, 445(Tex. App. – Fort Worth 1999, pet. denied). Thisprovides an ideal opportunity for the use of traditionalsummary judgment as well as no-evidence summaryjudgment. Because the statute limits the defenses toenforcing a pre-nup to unconscionability andinvoluntariness, either side can use summary judgment toprove his or her point. Since the burden lies on the partywho challenges the validity of the agreement, the personseeking to enforce it could also employ a motion for no-evidence summary judgment. In doing so, he or sheforces the other party to show the court why theagreement is unconscionable or how it was entered intoinvoluntarily.

The party seeking to enforce the agreement can firstuse summary judgment to establish the existence of theterms. Grossman, 799 S.W.2d at 513. They must showthat the contract exists and that there actually is anagreement. Once this is done, the party seeking toenforce the agreement only has to respond to the otherside’s defenses against it.

Whether or not the agreement is unconscionablemust be determined by the trial court before thedisclosure issues on finances are addressed. Fazakerly v.Fazakerly, 996 S.W.2d 260, 265 (Tex. App. Eastland

1999, pet. denied). The issue of unconscionability isdetermined as a matter of law on a case by case basis.Marsh v. Marsh, 949 S.W.2d 734, 740 (Tex. App.Houston [14th Dist.] 1997, no writ). Generally, the courtlooks at “the entire atmosphere in which the agreementwas made, the alternatives, if any, which were availableto the parties at the time of the making of the contract, thenon-bargaining ability of one party, whether the contractis illegal or against public policy, and, whether thecontract is oppressive or unreasonable.” Id. Anagreement must be so far one-sided that no reasonableperson could consider it to be an arm’s length transactionin order to be held unconscionable. Id. A finding thatan agreement is unfair does not mean the agreement isunconscionable. Id.

Similarly, when it comes to voluntariness, the courtsevaluate the issue on a case by case basis. Courts willonly accept duress as a contract defense if the personseeking to prove it shows that there was a threat to dosomething the threatening party has no legal right to do.Osorno v. Osorno, 76 S.W.3d 509, 511 (Tex. App.Houston [14th Dist.] 2002, no pet). In Osorno, althoughit was morally repugnant of the husband to threaten notto marry the wife if she did not sign the prenuptialagreement, he had the right to not marry her, andtherefore, her decision to sign was not made underduress. Id. The agreement was signed the day before thewedding. The court stated that although the wife to bewas faced with difficult choices, we cannot find herdecision to sign was involuntary. Id.

Marital property agreements (post-nuptials) falllargely under the same standards as prenuptialagreements. In Texas, the spouses have a right topartition any community property they chose:

At any time, the spouses may partition orexchange between themselves all or part oftheir community property, then existing or tobe acquired, as the spouses may desire.Property or a property interest transferred to aspouse by a partition or exchange agreementbecomes that spouse’s separate property. Thepartition or exchange of property includesfuture earnings and income arising from theproperty as the separate property of the owningspouse unless the spouses agree in a record thatthe future earnings and income will becommunity property after the partition orexchange.

Tex. Fam Code § 4.102 (2010)

The only formalities required for a partition or exchangeagreement is that it be in writing and signed by bothparties. Tex. Fam Code § 4.104 (2010). When the









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instrument is drawn-up to partition community property,courts look at the agreement the same way they look atthe prenup and evaluate its enforceability based on thecontract itself.

(a) A partition or exchange agreement is notenforceable if the party against whom enforcementis requested proves that:

(1) the party did not sign the agreementvoluntarily; or

(2) the agreement was unconscionable when it wassigned and, before execution of the agreement,that party:(A) was not provided a fair and reasonable

disclosure of the property or financialobligations of the other party;

(B) did not voluntarily and expressly waive,in writing, any right to disclosure of theproperty or financial obligations of theother party beyond the disclosureprovided; and

(C) did not have, or reasonably could nothave had, adequate knowledge of theproperty or financial obligations of theother party.

(b) An issue of unconscionability of a partition orexchange agreement shall be decided by the court asa matter of law.

(c) The remedies and defenses in this section are theexclusive remedies or defenses including commonlaw remedies or defenses.

Tex. Fam. Code § 4.105 (2010)

Again, the odds are stacked in favor of enforcing theagreement. In Pletcher v. Goetz, 9 S.W.3d 442, 445(Tex. App. - Fort Worth 1999, pet. denied), the courtexamined unconscionability in the context of a maritalagreement. Because it is not a term that has actuallybeen defined by the legislature or the supreme court inthis context, appellate courts have used “a commercialcontext” as guidance. Id., See also Marsh v. Marsh, 949S.W.2d 734, 739 (Tex. App. Houston [14th Dist.] 1997,no writ). Goetz went on to state that the issue ofunconscionability is a question of law for the court andthe court needs to consider “all of the circumstances inwhich the agreement was made” in order to make itsdecision. Goetz 9 S.W.3d at 445. Finally, It is alsopossible to make an agreement converting separateproperty into community property:

(a) An agreement to convert separate property tocommunity property:

(1) must be in writing and:(A) be signed by the spouses;(B) identify the property being converted;

and(C) specify the property is being converted to

the spouses’ community property; and(2) is enforceable without consideration.

(b) The mere transfer of a spouse’s separate property tothe name of the other spouse or to the name of bothspouses is not sufficient to convert the property tocommunity property under this subchapter.

Tex. Fam. Code § 4.203 (2010)

The enforcement of one of these agreements is a bitdifferent than the other property agreements. To prevailagainst enforcement of an agreement to convert separateproperty to community property, the spouse must provethat he or she did not: “(1) execute the agreementvoluntarily; or (2) receive a fair and reasonable disclosureof the legal effect of converting the separate property tocommunity property.” Tex. Fam. Code § 4.205(a)(1-2).In addition the code suggests a disclosure statement(contained in the code) in bold-faced type, capital letters,or underlined. If the disclosure statement in theagreement is identical to what is written in the statute, oris in substantially similar words, it is “rebuttablypresumed to provide a fair and reasonable disclosure ofthe legal effect of converting property to communityproperty. Tex Fam Cod at § 4.205(b).” If you are the one seeking to enforce the agreementthrough summary judgment, all you need to do is producethe signed document and make sure that the statementabout fair and reasonable disclosure is on there inaccordance with the statute. A person seeking to fight theenforcement of one of these agreements would have toeither show that the signature was not his or hers, thatthere was no disclosure statement or use the same kind ofdefense as in other agreements concerning voluntariness.A person seeking to enforce the agreement againstsomeone claiming that they entered into involuntarilymight do well to file a no-evidence motion for summaryjudgment as well because that would put the burden onthe other side to show why it was unenforceable.

2. ParentageThanks to the advancement of science, particularly

due to improvements in genetic testing, the issue ofparentage is a much more reliably answered question. Inre Shockley, 123 S.W.3d 642, 648 (Tex. App. El Paso,2003). Parentage cases have captured much attention inpopular culture in such settings as daytime talk shows orthe pages of tabloid magazines. Notwithstanding the soapopera drama associated in those instances, when it comesto normal application in a legal setting, the Uniform







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Parentage Act, provides a number of restrictions whichlimit is use. These limitations are reflective of the“marital presumption” from the English common law. Inre Schockley, 123 S.W.3d at 642. This states, that a courtwill presume a child born during a marriage is that of thehusband. Id. To this day, states still battle with the issuesof rights due to biological and psychological parents. Id. The Uniform Parentage Act, which became effective inTexas on June 14, 2001, incorporates a balance betweena retention of the old common law presumptions onparentage and the newer certainties granted by scientificadvancement. Id. at 650. The espoused goal of the Actis to work towards the best interest of the child. Id. InTexas, as in other states, the act sets significant hurdles“to prevent the disruption in a child’s life caused by aJohnny-come-lately who appears on the scene aftersignificant emotional and psychological bonding hasoccurred.” Id. Of the limitations under the UniformParentage Act, the one most predominantly andsuccessfully applying motions for summary judgment arewhere the statute of limitations has been exceeded.Under the Uniform Parentage Act in Texas, the statute oflimitations requires that a proceeding to adjudicate theparentage of a child be done within four years of thechild’s birth when there is a presumed father. TEX. FAM.CODE §160.607(a). There is no statute of limitations fordetermining the parentage when there is no presumedfather. TEX. FAM. CODE §160.607(b). As time isessentially a definitive indicator it satisfies aquintessential element of motions for summary judgment- that no genuine issue of material fact exist. In re R.O.,2005 WL 1787548 (Tex.App.-Austin 2005) (affirmingthe trial court’s summary judgment because the statute oflimitations requisite time period had elapsed); In re KNP,179 S.W.3d 717 (Tex. App. Fort Worth 2005, nopet.)(affirming the trial courts granting of summaryjudgment in favor of the biological father because themother and presumed father failed to exercise reasonablediligence in their parentage action within the statutorytime limitations).

Another limitation where summary judgmentmotions can be applied is in the application of estoppel.

“Estoppel in paternity actions is merely thelegal determination that because of a person’sconduct, that person, regardless of biologicalstatus will not be permitted to litigateparentage.” In re Shockley, 123 S.W.3d 642,651 (Tex.App.-El Paso 2003, no pet.).

The use of equitable estoppel in paternity actions isfocused on obtaining fairness between mother and fatherand holding them to prior conduct concerning theparentage of the child. Id. at 652. “Estoppel is based onthe public policy that children should be secure in

knowing who their parents are. If a person has acted asthe parent and bonded with the child, the child should notbe required to suffer the potentially damaging trauma thatmay come from being told that the father she has knownall her life is not in fact her father.” Id. (internalquotations omitted). Under Texas Family Code §160.608,a trial court may deny a motion for genetic testing of achild when a presumed father is indicated by clear andconvincing evidence. Id. at 652. While perhaps lessdefinitively indicated than time, where clear andconvincing evidence exists in a parentage cause,summary judgment is suitable.

When genetic testing evidence is neither barred bythe statute of limitations or estoppel, summary judgmentmay be applied in another manner. Under Texas FamilyCode §160.505, the weight of genetic testing isexplained. The statute states that a man is rebuttablyidentified as father of a child when test results disclosethat the man has at least a 99 percent probability ofpaternity and a combined paternity index of at least 100to 1. TEX.FAM.CODE. §160.505(a). A man identified as afather of a child after genetic testing, may rebut theresults only by (1) producing another testing thatexcludes him as the father or (2) identifying another manas the possible father of the child. TEX.FAM.CODE.§160.505(b). In In re Z.L.T.,124 S.W.3d 163, 164 (Tex.2003), the Attorney General filed suit to establish theparent-child relationship between an alleged father andthree minor children. The genetic testing was undertaken,and per §160.505(b), it revealed a probability of 99.98%for one child and 99.99% for the remaining two. Id.However, the alleged father was in fact able tosuccessfully rebut the presumption of paternity. Id. Thiscase is illustrative in the regard that it is not impossible torebut the presumption of paternity, however unlikely thismay seem - statistically this is an extreme rarity. In anyevent, should the circumstances be present, summaryjudgment provides an appropriate strategy for effectiveand efficient adjudication, because there is no genuineissue of fact.

3. Void, Voidable MarriagesThe Texas Family Code provides for the annulment

of a marriage under a variety of circumstances. SeeTex.Fam.Code §6.101 - 6.110 (2007). Many of theclaims are very susceptible to summary judgments. As ofSeptember 1, 2007, “A marriage is void if either party tothe marriage is younger than 16 years of age, unless acourt order has been obtained under Section 2.103.” Tex.Fam. Code § 6.205 (2007). Summary judgement is avery effective tool in showing the invalidity of a marriageto a minor because all that has to be done by the sideseeking to prove the marriage is void to show the courtthat the person is under the age of 16 or that there is nocourt order allowing the marriage to continue. Id. A






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similar law exists for persons 16 years of age or older butunder the age of 18. Tex. Fam. Code § 6.102 (2007). Toannul a marriage in this situation, the party seeking theannulment must show that there was no parental consentfrom the parents of the minor. Id. Again, somethingvery easy to establish through a motion for summaryjudgment.

Another instance in which summary judgment isdecisive is showing the existence of a prior marriage,which, in turn, makes the current marriage void. Tex.Fam. Code § 6.202 (2007). All one must prove is thatthere is an existing marriage that has not been “dissolvedby legal action or terminated by the death of the otherspouse.” Tex. Fam. Code § 6.202(a). In Loera v. Loera,815 S.W.2d 910 (Tex. App. – Corpus Christi 1991, nowrit), the presumption that the most recent marriage isvalid placed the burden of proof upon the appellee (theone who was seeking to annul the marriage) to establish1) the prior marriage and 2) its continuing validity at thetime of the subsequent marriage. Id. at 911. The lawalso says that the latter marriage will become valid whenthe prior marriage is dissolved “if the parties have livedtogether as husband and wife and represented themselvesto others as being married.” Tex. Fam. Code § 6.202(b).The court also applied this standard in Caddel v. Caddel,486 S.W.2d 141, 145 (Tex. Civ. App. – Amarillo 1972,no writ). The court found that the marriage, which hadbeen invalid because of a previous marriage, becamevalid when the legal impediment was removed (in thiscase, a divorce from the first spouse). Id. In order to usesummary judgment effectively in this situation, theperson seeking to show that the marriage is legal shouldpresent evidence of the dissolution of the previousmarriage and then rely upon proving the Texas standardfor common law marriage. See Tex.Fam.Code §6.202(b)(2007). On the other hand, the side seeking to defendagainst the validity of the marriage might want to do ano-evidence summary judgment motion to have the otherside show their evidence.

4. AdulteryMost divorces in Texas are filed and granted on the

no-fault ground of “irreconcilable differences.” Tex.Fam. Code §6.001. However, in some cases it isimportant that fault grounds are established anddocumented for the divorce. Adultery is likely the mostcommon fault ground asserted in divorces. Sometimes itis important to the client to have a divorce granted forfault reasons and more often is asserted as a reason for adisproportionate property split.

In the case of adultery, summary judgment can beused to establish it if there is sufficient evidence toclearly establish the claim. Bell v. Bell, 540 S.W.2d 432,435 (Tex. App. Houston [1st Dist.] 1976, no writ)(distinguished on other grounds), defines adultery not

only as “voluntary sexual intercourse of a married personwith one not the husband or wife of the offender” beforethe divorce proceedings, but during them as well. Sounder this interpretation of adultery, evidence that thespouse is having sexual relations with another before thedivorce is final could be enough to find he or she hascommitted adultery. The evidence required could be anyadmission to having had sexual relations outside ofmarriage, whether it be an admission, a response to aninterrogatory, a deposition, etc.

A motion for summary judgment on the issue ofadultery in the right case can be very useful. Forexample, pre-nuptial and post-nuptial have proliferatedand many contain “bad boy” clauses that penalizefinancial adulterous conduct. Having a ruling from thecourt triggering this provision can drastically alter thenegotiating positions of the parties.

B. No Evidence MSJsThere are so many tools for a family lawyer to utilize thatsometimes we overlook some of them. The no evidencemotion for summary judgment is an extremely efficientand valuable tool that is too often overlooked. Thishandy little motion can short circuit parts of youropposing counsel’s case and can save both your and yourclient time and money. This paper will help you knowhow and when to use the no evidence motion forsummary judgment in your family law case.

1. Common Law Marriage ClaimsAttacking common law marriage claims through a

no evidence summary judgment motion is a great tool toeliminate untenable claims or, at a bare minimum, tosmoke out the other party’s evidence. In Texas, to provea common law marriage the party seeking to prove themarriage must show that the man and woman agreed tobe married and that after the agreement, they livedtogether in Texas as husband and wife, representingthemselves as such to others. Tex. Fam. Code §2.401(a)(2). The agreement to be married can be provedby circumstantial evidence. Russell, 865 S.W.2d 929,933 (Tex. 1993). If neither party has sought to prove themarriage after two or more years of separation, there is alegal presumption that there was no marriage. Tex FamCod at §2.401(b). A no evidence motion for summaryjudgment is a useful tool in these cases because often thedifferent elements of common law marriage can bedefeated as a matter of law.

Appellate courts have encouraged summaryjudgment for such cases. In Ball v. Smith, 150 S.W.3d889 (Tex.App. - Dallas 2004, no pet.), Smith filed a noevidence motion for summary judgment claiming that heand his girlfriend had not had a common law marriage.The court held that the motion for no evidence summaryjudgment was legally sufficient because the girlfriend had








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not met her burden of showing more than a scintilla ofevidence that they had satisfied the statutoryrequirements for a common law marriage. Id. at 893.Similarly, in Amaye v. Oravetz, the girlfriend did notpresent more than a scintilla of evidence to rebut thepresumption that two or years more of separation meantthere was no common law marriage, and with a noevidence motion for summary judgment which demandsthat specific evidence, she lost because she could notproduce it. Amaye v. Oravetz, 57 S.W.3d 581, 584 (Tex.App. – Houston [14th Dist.] 2001, pet. denied).

A relatively recent opinion also gives us guidanceon the use of an affirmative motion for summaryjudgment on common law marriage claims. In Almeidav. Estrada, 2006 WL 2818067, *1 MemorandumOpinion (Tex. App. – San Antonio October, 4 2006, nopet. hist.), the court determined that filing a motion forsummary judgment, not a motion to dismiss, would havebeen the proper way to dispose of the case. The courtexplained that disproving a common law marriagerequired Estrada to negate the elements set out in theFamily Code. Mainly, he needed to prove as a matter oflaw that Almeida had not commenced her ownproceeding within the previous two years so that he couldrely upon the presumption that they had not beenmarried. Tex. Fam. Code § 2.401(b) (2007). Therefore,a dismissal was “an inappropriate means of deciding themerits of the case,” and the appellate court ordered a newtrial so that the proper procedure could be used. Almeida,2006 WL 2818067 at *2. While summary judgmentwould have been proper in Almeida, in Grigsby v.Grigsby, the court ruled that summary judgment shouldnot have been granted. 757 S.W.2d 163 (Tex. App. SanAntonio 1988, no writ). Because the appellee did notnegate the requirement of cohabitation in his motion, agenuine issue of material fact existed; therefore, he didnot deserve a judgment as a matter of law. Id. at 164. 2. Modifications

Summary judgment can be a useful an imaginativetool to dispose of a suit for modification of a SAPCR oran enforcement action. Because the summary judgmentprocess provides a method of terminating a case whenonly questions of law are involved and when there are nogenuine issues of fact, summary judgment can defeat amodification suit when there is no material or substantialchange in circumstances. King v. Wells Fargo Bank,N.A., 205 S.W.3d 731, 734 (Tex.App.-Dallas 2006, nopet.). A motion for summary judgment, or partialsummary judgment, becomes ripe when adequate timefor discovery has elapsed. Rule 166a(a) Tex. R. Civ. P. In an memorandum opinion out of the Austin Court ofAppeals, a mother filed a no-evidence summaryjudgment to defeat the claims of the father. The father’sresponse did not raise a genuine issue of material fact and

summary judgment was granted. Wrencher v. Wrencher,2007 WL 1451810 (Tex.App.–Austin 2007). The use ofno-evidence motion for summary judgment must bedetermined, however, on a case-by-case basis. SeeHargrave v. LeFever, 82 S.W.3d 524, 527 (Tex. App. –San Antonio 2002)(Father’s motion for no-evidencesummary judgment to dispose of a modification actionfailed). Where the trial court no longer has continuing,exclusive jurisdiction, a summary judgment can be useddispose of a modification action. See Moore v. Brown,993 S.W.2d 871 (Tex. App. – Fort Worth 1999, rehrgoverruled ); Harkins v. State, 773 S.W. 2d 401(Tex.App.– Houston [14th Dist.] 1989).

Summary judgment may also be used to determinewhether a court order is sufficiently definite to supportenforcement by contempt. In re Marriage of Ward, 137S.W.3d 910 (Tex. App. – Texarkana 2004). In anenforcement action, summary judgment is an alternativeto clarification. See In Re A.B., 207 S.W.3d 434, 437(Tex. App.–Dallas 2006)(Father filed a motion forsummary judgment asserting that the child support orderin the divorce decree of divorce was unenforceablebecause father was named as both a managing and apossessory conservator and because the decree containedno “step down” language when support was payable foronly one child.).

Summary judgment cannot be used to obtain a rulingthat “matters covered by the unanswered requests” foradmission are deemed admitted as such are issues of factto which a trial court is not bound. Satterfield v. Huff,768 S.W.2d 839, 841 (Tex. App. – Austin 1989, rehrgdenied 1989)(modification of a SAPCR). Summaryjudgment cannot be used to bind a party to a writtenagreement concerning child support when the agreementlacked the approval of the trial court. Sudan v. Sudan,145 S.W.3d 280, 285 (Tex.App.–Houston [14th Dist.]2002)(rehrg overruled); see also Ballard v. Allen, 2005WL 1037514 (Tex.App.–Tyler 2005)(An unpublishedopinion in which a mother moved for summary judgmentto clear title to property she acquired from father inexchange for a credit toward his child supportarrearages.).

3. Eliminating Bogus ClaimsSome lawyers use their pleadings to posture and

include claims for which they have little or no support.Some lawyers utilize the “throw everything in but thekitchen sink” approach. These approaches can result inpleadings that contain claims for which your opposingcounsel may have little or no support. One way to smokeout some of the more questionable claims is to file a noevidence motion for summary judgment. This can forceyour opposing counsel to either abandon the claims or toshow some of his or her cards.













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a. Separate PropertySeparate property is any property owned before

marriage, any property obtained by either spouse duringthe marriage by gift, devise or descent and recovery forpersonal injuries the spouse sustained during themarriage, except for the loss of earning capacity duringthe marriage. See TEX. FAM. CODE§ 3.001.

Any property possessed by either spouse at thedissolution of a marriage is presumed to be communityproperty. TEX. FAM. CODE § 3.003; see also Tarver v.Tarver, 394 S.W.2d 780, 783 (Tex. 1965). To overcomethe presumption, a party must prove the existence ofseparate property by clear and convincing evidence. SeeTEX. FAM. CODE § 3.003(b); Evans v. Evans, 14 S.W.3d343, 346 (Tex. App. – Houston [14th Dist.] 2000, no pet.)

In a divorce case, the issue of characterization of thenature of property as separate or community isdetermined by the trier of fact, be it judge or jury. Bahrv, Kohr, 980 S.W.2d 723 (Tex. App. - San Antonio 1998,no pet.) Inevitably, appearing in any petition for divorcewill be a request for the court to confirm separateproperty. A no evidence motion can be used to smokeout what that party can or cannot prove. Ordinarily, thetime to pursue this would be after you receive theinventory from the opposing party so you can pick andchoose what you target.

Some non-routine characterization situations areaddressed below.

Inception of Title.Real estate or other property acquired before

marriage is separate property. That means that any realestate to which your right to take title vested beforemarriage is separate property. This is due to theinception of title rule. Take the case of Alsenz v. Alsenz,101 S.W.3d 648 (Tex. App. - Houston [1st Dist.] 2003,pet. denied.). Richard Alsenz held a master’s degree inphysics. He was considered an expert in the field ofrefrigeration and had invented and patented more thanthirty-five (35) devices that improved electronicrefrigeration. In 1975, Richard founded AltechControls, Inc. to develop and market his inventions. Atthe time of the divorce, he was the president andmajority shareholder of Altech, and had assigned all ofhis patents to the company. Richard and Sue married in1996. Shortly after the marriage, Altech hired Sue as aconsultant. Sue formed the "MSA" corporation toreceive her salary from Altech plus income from itemsshe sold on EBay, an internet auction site. Sue andRichard had no joint bank accounts or joint credit cards.Each of them deposited their income into separate bankaccounts.

In addition to drawing a salary from Altech, Richardreceived royalties of four percent (4%) of the gross salesof products developed from his inventions. During his

marriage to Sue, Richard received $706,730.56 inroyalties from the sales of devices he invented, patented,and assigned to Altech before the couple married. Richard deposited these royalties into his separate bankaccount. None of the inventions he developed during hismarriage were generating royalties at the time of thedivorce.

Richard petitioned for divorce in June 2000. In apretrial ruling, the court declared Richard's royaltyincome to be community property. In January 2001,after a four day bench trial, the court granted the partiesa no-fault divorce, granted Sue's request for a protectiveorder, and divided the property unequally. The trial courtdid not file requested findings of fact and conclusions oflaw and denied Richard's motions for new trial and tovacate the decree.

This was a case of first impression as no Texas casehad addressed when inception of title to patent rightsoccurred. The appellate court found that inception of titleto the patents could have occurred: (1) when the conceptwas sufficiently developed to generate a plan to build theinvention; (2) when the invention was actually built; or(3) on the effective date of the patent. The appellate courtwas able to side-step answering this question as all threeof these steps occurred before Richard's marriage to Sue.As the inception of title to Richard's patents clearlyoccurred before marriage, the inventions were Richard'sseparate property. See TEX. FAM. CODE.§ 3.001(1).

Personal Injuries.Sometimes a married person sustains personal

injuries. If that person recovers damages due to his or herpersonal injuries, most of it is the separate property of theperson who incurred personal injuries and recovereddamages for them. The case of Lee v. Cresswell, 1999WL 33748128, Tex. App. - Eastland, December 8, 1999,is a good example of how to prove personal injurydamages are separate property.

In 1986, Lee and his wife settled a medicalmalpractice action based on care Lee's wife receivedduring childbirth when she suffered severe brain damage.The Lees settled for approximately 2.5 million dollars.The settlement agreement states that, in consideration forthe payment of that sum, the plaintiffs waived:

[A]ll claims of whatever kind or characterarising from the circumstances described hereinand especially, but not limited to, personalinjuries, mental and physical pain andsuffering, loss of wages, lost or diminishedearnings and/or earning capacity, doctor,hospital, nursing home, rehabilitation institute,nurse, and drug bills, loss of income, loss ofsupport, loss of inheritance, loss of society, lossof companionship, emotional suffering or







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harm, ultimate wrongful death and/or funeralor burial expenses, educational expenses,rehabilitation expenses, medical expenses, orany other tangible or intangible loss, claims ofothers for contribution or indemnity orcomparative causation, and any other loss ordetriment or expenses of any kind, past,present or future, regardless of whether saidclaims or damages are now known or assertedin the pleadings filed in this case or otherwise.

From the total sum, $350,000 was paid into a trust forLee's wife which was designed to pay for her continuinghealthcare needs during her life. Lee's wife was the solebeneficiary of this trust. The trust terminated on the deathof Lee's wife and Lee's wife's estate would receive theremainder of the corpus and any undistributed income.Another $450,000 was paid into a trust for Lee.

The trust for Lee's wife was established by order ofthe court trying the medical malpractice case. In 1991,Lee's wife unexpectedly recovered. The Lees moved toterminate the trust and the court that had tried themedical malpractice case terminated the original trustand ordered the assets distributed to "the Beneficiary,"Lee's wife. The Lees retained Cresswell, an attorney, todraft two new trusts.

One trust was an irrevocable trust designed toprovide continual income for Lee's wife in the event of arelapse; the other was a revocable trust designed toprovide the Lees with extra income. Cresswell drafted thefollowing acknowledgment, which upon his advice Leesigned:

The undersigned, being the husband of DANALEE, who is the person named as the Settlor inthis Trust Agreement, hereby acknowledgesthat he has read and understands all of theterms and provisions of this Trust Agreement;acknowledges that the property described onSchedule A attached to this Trust Agreement isthe sole and separate property of Settlor; agreesthat all subsequent additions to this trust shallbe or become, by virtue of the addition, thesole and separate property of Settlor; agreesthat all future income or property arising from,and all mutations and appreciation of, the trustassets shall be the sole and separate property ofSettlor; and agrees that he will claim nointerest in such property and will assert noright of reimbursement for such property,either as his separate or community property.

In 1996, Lee and his wife divorced. Lee's wife claimedthe two new trusts as her separate property. Lee claimedthem as community property arguing that the settlement

agreement stated that the total sum paid to the plaintiffswas to settle some claims such as medical expenses, lostwages, and lost earning capacity that were communityproperty. Lee contended that his wife had to show byclear and convincing evidence which part of the trustswere separate property.

The divorce court found that the two new trusts wereentirely the separate property of Lee's wife. The divorcecourt also found, however, that the $450,000 paid intotrust for Lee was his separate property. Lee appealed thedivorce court's judgment, but he dismissed the appealafter he settled with his wife.

On September 14, 1998, Lee filed suit againstCresswell, for legal malpractice alleging Cresswellnegligently, fraudulently, and erroneously advised Leethat the trusts were his wife's separate property. Leealleged that, were it not for the acknowledgments that hesigned, the divorce court would not have awarded hiswife the trusts as her separate property. Cresswell movedfor summary judgment which the trial court granted.

The Court found that Texas Family Code section3.001(3) applied. 1Lee argued that if the settlementagreement awarding the damages failed to allocateamounts of damages to certain categories such asphysical injury, pain, or mental anguish and to otherssuch as lost wages or medical expenses, the spouseclaiming the funds as separate property has the burden toprove their character. The appellate court agreed.

However the appellate court found that Mrs. Lee didmeet her burden of proof. Although Lee argued that thesigned acknowledgments were the only evidencepresented to the divorce court that the two trusts were hiswife's separate property, the summary judgment proofindicated that the divorce court considered at least thesettlement agreement and judgment from the medicalmalpractice case. The settlement agreement and releasestated that all of the plaintiffs in that case accepted thesettlement funds in consideration for releasing thedefendants for any claims arising from the defendants'conduct toward Lee's wife. The settlement agreement andjudgment divided the total amount of settlement fundsamong all of the plaintiffs. Lee's wife initially received$350,000 in trust; Lee received $450,000 in trust.

The divorce court considered the structure of thesettlement and its allocation of funds among the plaintiffsas establishing which funds were separate property andwhich were community property. Therefore, the divorcecourt properly found that the two new trusts wereseparate property. As Lee has already litigated the

1 " [T]he recovery for personal injuries sustained by [a] spouseduring marriage, except any recovery for loss of earningcapacity during marriage," is that spouse's separate property.TEX. FAM.CODE ANN. § 3.001(3) (Vernon 1998); seeGraham v. Franco, 488 S.W.2d 390, 396 (Tex.1972).



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characterization of the trusts in the divorce court, theissue was res judicata and Lee was estopped fromlitigating the issue again n the malpractice action.

Gifts.Gifts can be tricky to prove, but disproving them

can be difficult as well. In Long v. Long, 196 S.W.3d460, 2007 WL475794, (Tex. App. - El Paso, February15, 2007). The parties were married on May 26, 1998.At the time of the marriage, Gabe Long was employed byPerot Systems, and had certain stock options. Eventuallythe stock was sold and counsel for both partiesrepresented to the court that the sales proceeds wereGabe's separate property.

From the proceeds of the stock sale, $138,000 wasused to purchase a lake lot. Gabe claimed the lot in itsentirety as separate property. Danalyn, the soon to be ex-Mrs. Long, claimed an undivided one-half interest in thelot as her separate property. Danalyn claimed that whenGabe used his separate funds to purchase the property buttook title in both parties' names, Gabe had manifested anintent to make a gift. The trial court agreed and Gabeappealed.

The appellate court stated that a gift is a voluntarytransfer of property to another made gratuitously andwithout consideration. Hilley v. Hilley, 161 Tex. 569,342 S.W.2d 565, 569 (1961); Roberts v. Roberts, 999S.W.2d 424, 431 (Tex. App.- El Paso 1999, no pet.).Three elements are required to establish the existence ofa gift: (1) intent to make a gift; (2) delivery of theproperty; and (3) acceptance of the property. Harringtonv. Bailey, 351 S.W.2d 946 (Tex.Civ.App.-Waco 1961, nowrit). Without intent, there is no gift. Similarly, the intentmust exist at the time of the transfer, not at the time of asubsequent divorce. Rusk v. Rusk, 5 S.W.3d 299, 303(Tex. App.-Houston [14th Dist.] 1999, pet. denied),citing Ellebracht v. Ellebracht, 735 S.W.2d 658, 659(Tex. App.-Austin 1987, no writ).

The deed taken in both names, but paid for byGabe’s separate funds, created a rebuttable presumptionthat Gabe gave Danalyn a gift. The presumption vanishedwhen Gabe testified that he did not intend to make a giftand the burden shift to Danalyn to establish, by clear andconvincing evidence, that a gift was intended.

There was conflicting evidence about Gabe’sintention to make a gift. It should come as no surprisethat Gabe testified that he never intended to make a giftto Danalyn of the property. Danalyn, of course, testifiedto the exact opposite, swearing that the land was alwaysreferred to as “ours”. Danalyn’s attorney was able toimpeach Gabe with his prior deposition testimony whilehe was on the stand. The appellate court held that areasonable trier of fact could have formed a firm belief orconviction that a gift was intended based upon thetestimony of the parties and the deed taken in the name

of both parties. The fact that Danalyn impeached Gabewith his own testimony certainly did not help Gabe’scase. The appellate court, concluding that the evidencewas legally sufficient to support the trial court’s findingthat Gabe gave Danalyn one half of the lake property asa gift, upheld the trial court’s ruling. Gabe bought outDanalyn’s interest to the tune of about $875,000.00. Thatwas a really nice gift.

b. ReimbursementReimbursement claims are also an excellent target

for a no evidence summary judgment. Again, theseclaims are often inserted into a “form” pleading withoutgiving much thought to whether the spouse’s requestedreimbursement is actually reimbursable under the FamilyCode.

Be aware that the party claiming the right ofreimbursement has the burden of pleading and provingthat the expenditures and improvements were made andthat they are reimbursable. Vallone v. Vallone, 644S.W.2d 455, 459 (Tex. 1982). Reimbursement is not amatter of law, but lies within the discretion of the trialcourt. Id.

A Family Code claim for reimbursement includes: (1) payment by one marital estate of the unsecured

liabilities of another marital estate; (2) inadequate compensation for the time, toil, talent,

and effort of a spouse by a business entity under thecontrol and direction of that spouse;

(3) the reduction of the principal amount of debtsecured by a lien on property received by a spouseby gift, devise, or descent during a marriage, to theextent the debt existed at the time the property wasreceived;

(4) the reduction of the principal amount of a debtsecured by a lien on property received by a spouseby gift, devise, or descent during a marriage, to theextent the debt existed at the time the property wasreceived;

(5) the reduction of the principal amount of a debt,including a home equity loan:(A) incurred during marriage;(B) secured by a lien on property; and(C) incurred for the acquisition of, or for capital

improvements to, property;(6) the reduction of the principal amount of a debt:

(A) incurred during marriage;(B) secured by a lien on property owned by a

spouse;(C) for which the creditor agreed to look solely to

the separate marital estate of the spouse onwhose property the lien attached; and

(D) incurred for the acquisition of, or capitalimprovement to, property;












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(7) the refinancing of the principal amount described bySubdivisions (3)-(6), to the extent the refinancingreduces that principal amount in th emannerdescribed by the applicable subdivision;

(8) capital improvements to property other than byincurring debt; and

(9) the reduction by the community property estate ofan unsecured debt incurred by the separate estate ofone of the spouses.

See Tex. Fam. Code § 3.402(a) O’Connors (2010).The no evidence motion for summary judgment

should challenge the proof that one marital estate paidany unsecured liabilities of another marital estate. Mostoften, a spouse has in mind that this must be true, but theevidence is lacking to support that spouse’s conviction.The no evidence summary judgment can put the spouseto her burden.

Moreover, a reimbursement claim based oninadequate time, toil, talent, and effort of a spouse by abusiness entity under the control and direction of thatspouse is also a good area for a no evidence motion forsummary judgment. Again, a spouse might think theycan merely just assert such a claim without muchevidence. The summary judgment motion will put thespouse to the burden to show some evidence of theseconstituent elements.

An additional possibility exists for a no evidencesummary judgment even if the non-moving partyresponds with some evidence. Keep in mind that theFamily Code specifically provides that the court mustresolve a claim for reimbursement by using equitableprinciples, including the principle that claims forreimbursement may be offset against each other if thecourt determines it to be appropriate. Tex. Fam. Code §3.402(b).

A no evidence summary judgment may also shakeout weak or sketchy proof to support a reimbursementclaim. The trial court, using equitable principles, coulddetermine that the evidence presented in response to theno evidence motion does not rise to the level of anequitable reimbursable claim.

A final reason for a no evidence motion forsummary judgment against a reimbursement claim is thatit may show that the claim is non-reimbursable bystatute. A court may not recognize a marital estate'sclaim for reimbursement for:

(1) the payment of child support, alimony, or spousalmaintenance;

(2) the living expenses of a spouse or child of a spouse;(3) contributions of property of a nominal value(4) the payment of a liability of a nominal amount; or(5) a student loan owed by a spouse.

See Tex. Fam. Code § 3.409.If the proof brought forward in response to the

motion looks like one of these five prohibited claims, thecourt should grant the no evidence motion for summaryjudgment.

In sum, a no evidence summary judgment can bevery useful to eliminate tenuous or shaky reimbursementclaims that have been inserted into a “form” pleading.

VII. UNDERSTANDING THE PROCEDURE

A. Traditional MSJsThe traditional motion for summary judgment

depends upon summary judgment evidence (i.e. theaffidavits and exhibits attached to the motion) Tex. R.Civ. P. 166a(c).The trial court’s duty in considering themotion is to determine if a material question of factexists. Huckabee v. Tim Warner Entertainment Co., 19S.W.3d 413, 422 (Tex. 2000) (“Texas law has alwaysemphasized that trial courts must not weigh the evidenceat the summary judgment stage.)

a. A traditional summary judgment can be filedanytime after the lawsuit is filed by the Defendantand after the Defendant answers by the Plaintiff.

b. The movant must prove his/her claim or defense ordisprove an element of nonmovant’s claim ordefense as a matter of law. The nonmovant does nothave a burden of proof until the movant offers proofthat he/she is entitled to summary judgment as amatter of law.

c. The motion for summary judgment must state thegrounds on which it is made. Tex. R..Civ. P.166a(c). Similar to a petition, a motion forsummary judgment must be sufficiently detailed toprovide the non-Movant “fair notice.” SeawayProds. Pipeline Co. v. Hanley, 153 S.W.3d 643, 649(Tex. App. - Fort Worth 2004, no pet.).

If the grounds are not specific enough, the remedyfor the non-Movant is to file special exceptions.The grounds plead in the motion for summaryjudgment should likewise be in the pleadings.

In order to grant a summary judgment, the Movantmust prove to the Court that there is no genuineissue of material fact and that they are entitled tojudgment as a matter of law. Park Place Hospital v.Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995).

When considering a motion for summary judgment, aCourt must keep the following standards in kind:

(1) accept as true all the evidence favoring the non-movant. Id.






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(2) resolve every reasonable inference in favor of thenon-movant. Provident Life & Accident InsuranceCo. V. Knott, 128 S.W.3d 211, 215 (Tex. 2003).

(3) find that any questions regarding whether a genuineissue of material fact exists are resolved against theMovant. M.D. Anderson Hospital v. Willrich, 28S.W.3d 22, 23 (Tex. 2000).

(4) A trial court can not grant a default summaryjudgment even if the non-movant fails to file aresponse to a traditional summary judgment. Thesummary judgment proof must still be legallysufficient. Medlock v. Commission for LawyerDiscipline, 24 S.W.3d 865, 870 (Tex.App. -Texarkana 2000, no pet.)

Before moving to discuss no-evidence summaryjudgments, it is permissable to file a hybrid motion forsummary judgment combining a traditional and no-evidence motion in a single pleading. Binur v. Jacobo,135 S.W.3d 646, 650 (Tex. 2004). The motion must,however, give fair notice as to the basis under which thesummary judgment is sought. Waite v. Woodard, Hall &Primm, P.C. 137 S.W.3d 277, 281 (Tex.App. - Houston[1st Dist.] 2004, no pet.) B. No-Evidence Motion 166a(i)

The no-evidence motion is a motion for summaryjudgment that is often used primarily to “smoke out” theopposing party’s evidence. After adequate time fordiscovery, a party without presenting summary judgmentevidence may move for summary judgment on theground that there is no evidence of one or more essentialelements of a claim or defense on which an adverse partywould have the burden of proof at trial. The motion muststate the elements as to which there is no evidence. A no-evidence motion for summary judgment does not requiresupporting evidence. Moore v. K-mart Corp., 981S.W.2d 266, 269 (Tex.App.- San Antonio 1998, pet.denied). The Court must grant the motion unless therespondent produces more than a scintilla of summaryjudgment evidence raising a genuine issue of materialfact. Forbes, Inc. v. Granada Bio Sciences, Inc. 124S.W.3d 167, 172 (Tex. 2003).

Other considerations for the trial court are asfollows:

a. The movant must allege that there is no evidence toprove a specific element of non-movant’s claim ordefense. Howell v. Hilston Hotels Corp., 84 S.W.3d708, 711-712 (Tex.App.– Houston [1st Dist. 2002,pet.denied).

b. Non-movant has the burden to raise a fact issue onits claim or defense. Id.

c. Burden shifts to non-movant once the movantalleges that the non-movant has no evidence. Id.

d. A no evidence motion for summary judgment can befiled after there has been adequate time fordiscovery (an affirmative statement to this effectshould be included in the motion).

If the filing of a no-evidence summary judgmentmotion occurs after the discovery deadline has passed, itis presumed to be timely. If the discovery deadlines havenot passed then the court will look at many factors todetermine if the respondent had adequate time fordiscovery. Examples of the factors that the courts haveconsidered are as follows:

1. The nature of the claim;2. The evidence necessary to controvert the motion;3. The length of the time the case was on file;4. The length of time the no-evidence motion was on

file;5. Whether the movant requested stricter guidelines for

discovery;6. The amount of discovery already conducted; and7. Whether the discovery deadlines were specific or

vague. Community Initiatives, Inc. v. ChaseBank,153 S.W.3d 270, 278-79 (Tex.App.- El Paso2004, no pet.), McMahan v. Greenwood, 108 S.W.3d 467, 498-99 (Tex.App.- Houston [14th Dist.]2003, pet. denied)

C. Timing RulesSummary judgments are intended to quickly

facilitate the disposal of cases where an unmeritoriousclaim or untenable defense is involved. City of Houstonv. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). In traditional motions for summary judgment, aplaintiff may move at anytime after the defendant hasanswered the lawsuit. TRCP 166a(a). The defendant maymake the motion for summary judgment at any timeduring the proceeding. TRCP 166a(b). A no evidencemotion for summary judgment differs from a traditionalmotion in that it is presumed timely only after thediscovery period for the case has been conducted. TRCP166a(I). Please refer to Appendix 1 for a graphicaldescription of the timing for motions for summaryjudgment.

Both no-evidence and traditional motions forsummary judgment should be filed, along with anysupporting affidavits, twenty-one days before the timespecified for a hearing. TRCP 166a(c). The adverse partymay file and serve opposing affidavits or other writtenresponses no later than seven days prior to the hearingdate. TRCP 166a(c). Timing rules may vary only uponleave of the court. TRCP 166a(c). Also, the parties maychange the deadlines by agreement between themselves,so long as it meets the requirements of TRCP 11.


















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1. MotionA motion for summary judgment, both traditional

and no-evidence, must state the grounds upon which it ismade. TRCP 166a(c); McConnell v. Southside ISD, 858S.W.2d 337, 341 (Tex.1993). A motion for summaryjudgment must be in writing and unverified. Clear Creek,589 S.W.2d 671, 677 (Tex. 1979); Hidalgo v. SuretyS&L Ass’n, 462 S.W.2d 540, 545 (Tex. 1971). Summaryjudgment may not be granted, in both instances, ongrounds that are not presented in the motion. Johnson v.Brewer & Pritchard, 73 S.W.3d 193, 204 (Tex. 2002). Ifa ground in support of a motion for summary judgmentis not stated in the motion, it may not be supplied by aprayer for general relief. Golden Triangle Energy v.Wickes Lumber, 725 S.W.2d 439, 441 (Tex.App.-Beaumont 1987, no writ). When a summary judgmentmotion is reviewed on appeal, it may not be affirmed ongrounds that are not presented to the trial court. Stiles v.Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993).

2. ResponseThe response must be filed by the nonmovant,

including affidavits, at least seven days prior to thehearing. TRCP 166a(c). A response will still beconsidered timely, even if it is mailed on the day it is due- it must however reach the clerk no more than ten daysafter the date upon which it is due. TRCP5, 21a. If aresponse is filed by the nonmovant to a motion forsummary judgment, the movant may want to reply to theresponse - there is no deadline for such a response. TRCP166a(c); Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1,4 (Tex.App.- San Antonio 2000, pet. denied). Sufficientnotice for the date of the hearing or the date on themotion for summary judgment must be given to thenonmovant so that they may be aware of when a responseis due. Martin v. Martin, Martin & Richards, Inc., 989S.W.2d 357, 359 (Tex. 1998).

D. The HearingNo oral testimony is given in a hearing for summary

judgment, rather only argument. TRCP 166a(c). Effective presentations for summary judgments arediscussed subsequently in the paper. VIII. CRAFTING YOUR AFFIRMATIVE

MOTION FOR SUMMARY JUDGMENT Your motion for summary judgment could be the

most important pre-trial pleading you file in your case.It thus stands to reason that you should not haphazardlycraft such a motion or try to “throw it together” shortlybefore a hearing. To the contrary, the most importantthing that a lawyer can do is give herself time tothoughtfully and methodically reflect upon and draft themotion.

A. Identify IssuesThe first thing to consider in presenting a motion for

summary judgment is to know what it is you are trying toprove. Are you trying to prove that property is yourclient’s separate property, or are you going to assume theburden and try and disprove that property is not youropponent’s separate property? If you are defendingagainst a motion for summary judgment, you must knowwhat is you are trying to prove. Are you trying to proveor disprove that the property in question is separateproperty of one of the spouses? If you are defendingyour opponent’s motion for summary judgment, youmust show that there is at least one genuine issue ofmaterial fact as to at least one element of your opponent’sclaim or defense. It is easy to be overwhelmed by amotion for summary judgment that contains multipleexhibits and affidavits. Break down eachcharacterization dispute and be prepared to show whyyou are right.

B. Identify EvidenceAfter identifying issues upon which to file a motion

for summary judgment, your next step is to determinehow to prove it. This exercise is extremely importantbecause it not only helps you prepare for a summaryjudgment, but also for trial as well. The same exhibitsyou used for your summary judgment motion are likelywhat you are going to trial with. Accordingly, even ifyour summary judgment motion is not granted, youalready have your evidence organized for this point attrial.

The first step in identifying evidence is to have aclear understanding yourself of what it is you are tryingto prove with your motion for summary judgment. If youare not clear, the court certainly won’t be.

As an example, your goal is to prove by summaryjudgment that stock your client owns is her separateproperty. She received the stock when her grandmotherpassed away. What specifically are you trying to prove?Answer: That there is no genuine issue of material factthat wife inherited stock from her grandmother and she isentitled to judgment as a matter of law that the stock isher separate property. How do we go about proving this?Was the estate probated? Can we get a copy of the lastwill and testament? Is there a transfer document for thestock? Can we get an affidavit from the executorregarding the bequest and proving up the relevantdocuments?

You must be able to support your claim that there isno genuine issue of material fact with evidence. If youare seeking to prove that something in the estate is yourclient’s separate property, how do you do it? Well, startwith the marriage certificate. The date of marriageestablishes the first possible date that communityproperty could have existed. Pull out deeds to cars,












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earnest money contracts and/or deeds real estate andbank statements. Things that existed prior to the date ofmarriage or to which title vested before marriage areseparate property. In the alternative, things that existedor to which title vested on or after the date of marriageare community property. With regard to monetary assets,hire an expert to assist you with tracing funds. Justbecause the monetary asset started out as a separate assetdoes not necessarily mean that it stays that way. Youmust prove that the money which started a separateproperty remained separate.

C. Drafting the MotionThere are many ways to write a motion for summary

judgment. Just remember the old writing rule that youlearned in high school. You are telling a story. Thejudge hearing your motion may or may not be familiarwith the circumstances of your case. Once he or shefinishes reading your motion, the judge should be able totell you what the story is about and will hopefully rule inyour favor.

One of the best ways to make sure you haveaccomplished this is to have someone who is not familiarwith the case read the motion and then tell you the story.If that person has it right, you have done a good job.

When writing your story, do not be too lengthy.Without leaving out the relevant facts, get to the point.Tell the court the type of summary judgment and thestandard. Tell the court why a summary judgment isappropriate in this case under these facts. Explain whythere is no genuine issue of material fact or why there isno evidence of one or more of your opposing counsel’sclaim. In terms of structuring your motion, one of themost important concepts to grasp is early on in yourmotion tell the court what it is you want them to do. Thismay seem obvious, but often times a pleading can getbogged down in minutia and leave the court wonderingwhere are you going with this. After the initial “COMESNOW,” have a section entitled “RELIEF REQUESTED”in which you will tell the Court concisely what it is youwant it to rule. Although there are countless ways tostructure the remainder of the motion, some ideas are asfollows: Create a section to itemize for the Court theevidence you are relying on in support of your motion.Next, tell your story. Give the court a narrative of thefacts that support your motion. Lastly, apply the law toyour facts. Create an argument and authorities sectionthat clearly shows why you are entitled to judgment as amatter of law. Then, tie back to the start of the motionagain telling the court what it is you want them to do.

D. Drafting Your AffidavitsDrafting an affidavit in favor of a summary

judgment is tricky. Most affidavits are objectionablebecause they leap to legal and factual conclusions. The

ideal affidavit will just set out facts; leave the legalconclusions to the brief.

Timing of the Affidavits A well-drafted affidavit is powerful summaryjudgment evidence. Rule 166a specifically allows a partyto submit affidavits. An affidavit in support of a motionfor summary judgment must be filed and served at leasttwenty-one days before the time specified for hearing.Tex. R. Civ. P. 166a(c). Except on leave of court, theadverse party, not later than seven days prior to the dayof hearing may file and serve opposing affidavits or otherwritten response. Id.

Clear, Positive, Direct, Free from Contradictions, &Readily Controvertible

A summary judgment may be based onuncontroverted testimonial evidence of an interestedwitness, or of an expert witness as to subject matterconcerning which the trier of fact must be guided solelyby the opinion testimony of experts, if the evidence isclear, positive and direct, otherwise credible and freefrom contradictions and inconsistencies, and could havebeen readily controverted. Tex. R. Civ. P. 166a(c); seeNew Times Inc. v. Isaacks, 146 S.W.3d 144, 164 (Tex.2004).

But the affidavit must not be conclusory. Theaffidavit of an interested expert witness can supportsummary judgment if it meets the requirements of Rule166a, even if that expert is a party to the suit. Andersonv. Snider, 808 S.W.2d 54, 55 (Tex. 1991). If aninterested expert witness presents legally sufficientevidence in support of a motion for summary judgment,the opposing party must produce other expert testimonyto controvert the claims. Id. However, testimonycomprised only of legal conclusions is insufficient tosupport summary judgment as a matter of law. Id.Likewise, conclusory statements made by an expertwitness are insufficient to support summary judgment.Id.

A conclusory statement of an expert witness isinsufficient to create a question of fact to defeat summaryjudgment. See Ryland Grp., Inc. v. Hood, 924 S.W.2d120, 122 (Tex. 1996) (per curiam) (“The relevantstandard for an expert's affidavit opposing a motion forsummary judgment is whether it presents some probativeevidence of the facts at issue.... Conclusory affidavits arenot enough to raise fact issues.”) (citations omitted).

Moreover, no difference exists between thestandards for evidence that would be admissible in asummary judgment proceeding and those applicable at aregular trial. United Blood Servs. v. Longoria, 938S.W.2d 29, 30 (Tex. 1997). If an expert is testifying byaffidavit, the proponent must prove up the expert’s








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qualifications and the relevance and reliability of theconclusion. Id.

Made on Personal KnowledgeSupporting and opposing affidavits must be made on

personal knowledge, set forth such facts as would beadmissible in evidence, and show affirmatively that theaffiant is competent to testify to the matters statedtherein. Tex. R. Civ. P. 166a(f). To establish personalknowledge, the affidavit should show how the witnessbecame familiar with the facts in the affidavit. RadioStation KSCS v. Jennings, 750 S.W.2d 760, 762 (Tex.1988) (per curiam).

Affidavits made without personal knowledge areincompetent summary judgment evidence. WembleyInvest. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999)(attorney’s affidavit was no evidence of purportedservice because the attorney’s statements showed a lackof personal knowledge). Merely reciting that an affidavitis made on personal knowledge is insufficient.Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994).

A person’s “understanding” or “belief” expressed inan affidavit does not constitute competent summaryjudgment proof based on personal knowledge. RylandGrp. Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Asthe Texas Supreme Court explained in Ryland Group,statements in an affidavit must positively andunqualifiedly represent that the facts disclosed are true:

Rule 166a(f) requires that “supporting andopposing affidavits shall be made on personalknowledge, shall set forth such facts as wouldbe admissible in evidence, and shall showaffirmatively that the affiant is competent totestify to the matters stated therein.” Tex. R.Civ. P. 166a(f); Humphreys v. Caldwell, 888S.W.2d 469, 470 (Tex. 1994) (affidavit lackingtestimony that statements were unequivocallybased on personal knowledge was legallyinsufficient). An interested witness' affidavitwhich recites that the affiant “estimates,” or“believes” certain facts to be true will notsupport summary judgment. See Lightfoot v.Weissgarber, 763 S.W.2d 624, 628 (Tex.App.-San Antonio 1989, writ denied) (holdingtestimony based on affiant's best knowledgeand belief does not meet Rule 166a(e)'s strictrequirements); Ardila v. Saavedra, 808 S.W.2d645, 647 (Tex. App.-Corpus Christi 1991, nowrit). Such language does not positively andunqualifiedly represent that the “facts”disclosed are true. Brownlee, 665 S.W.2d at112.

Ryland Grp. Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996)

Documents May be AttachedSworn or certified copies of all papers or parts

thereof referred to in an affidavit shall be attached theretoor served therewith. Tex. R. Civ. P. 166a(f).

The documents, however, must be shown to beauthentic and admissible. United Blood Servs. v.Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (“no differenceobtains between the standards for evidence that would beadmissible in a summary judgment proceeding and thoseapplicable at a regular trial”).

If the documents are not properly authenticated, theyare inadmissible. Petty v. Citibank, 218 S.W.3d 242, 244(Tex. App.–Eastland 2007, no pet.).

Supplements are PermissibleThe court may permit affidavits to be supplemented

or opposed by depositions or by further affidavits. Tex.R. Civ. P. 166a(f).

Defects in Affidavits May be Waived by Failure toObject

Defects in the form of affidavits or attachments isnot grounds for reversal unless specifically pointed outby objection by an opposing party with opportunity, butrefusal, to amend. Tex. R. Civ. P. 166a(f).

Generally, failure to make a proper objection to anaffidavit results in waiver of the ability to complain aboutthe defect. Grand Prairie I.S.D. v. Vaughan, 792 S.W.2d944, 944 (Tex. 1990) (per curiam); Niu v. Revcor MoldedProd. Co., 206 S.W.3d 723, 729 (Tex. App.–Fort Worth2006, no pet.) (Unauthenticated or unsworn documents,or documents not supported by any affidavit, are notentitled to consideration as summary judgment evidence).

Courts have held, however, that objections to formof an affidavit must be timely preserved while objectionsto substance may not need a timely objection to preserveerror. The Forth Worth Court of Appeals explained thedifference between objections to form vs. substance: “Adefect is substantive if the summary judgment proof isincompetent; it is formal if the summary judgment proofis competent, but inadmissible.” Coleman v. Woolf, 129S.W.3d 744, 748 (Tex. App.–Fort Worth 2004, no pet.).To preserve error concerning complaints about defects inthe form of summary judgment proof, the objecting partymust obtain a ruling on the objections, preferably inwriting. ChoctawProp., L.L.C. v. Aledo I.S.D., 127S.W.3d 235, 241 (Tex. App.–Waco 2003, no pet.); Trustyv. Strayhorn, 87 S.W.3d 756, 762 (Tex. App.–Texarkana2002, no pet.); Lection v. Dyll, 65 S.W.3d 696, 703 (Tex.App.–Dallas 2001, no pet.). This ruling must be obtainedat or before the court hears the summary judgment























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motion. McConnell v. Southside Indep. Sch. Dist., 858S.W.2d 337, 343 n.7 (Tex. 1993).

The reason court require an objection to a defect asto form is because it is curable. Complaints that anaffidavit, for example, contains hearsay or is not basedon personal knowledge raise defects of form.Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230,234 (Tex. 1962); Hou-Tex, Inc. v. Landmark Graphics,26 S.W.3d 103, 112 n. 9 (Tex. App.–Houston [14thDist.] 2000, no pet.). Defects in the form of affidavitsmay be grounds for reversal if specifically pointed out byobjection by an opposing party with opportunity, butrefusal, to amend. EOG Resources, Inc. v. Wall, 160S.W.3d 130, 134 (Tex. App.–Tyler 2005, no pet.). Thetrial court should allow supplementation to cure defectsof form. Id.

Objections to defects in the form of an affidavitinclude: (1) lack of personal knowledge; (2) hearsay; (3)statement of an interested witness that is not clear,positive, direct, or free from contradiction; and (4)competence. See Stewart v. Sanmina Texas L.P., 156S.W.3d 198, 207 (Tex. App.–Dallas 2005, no pet.) (lackof personal knowledge and hearsay); ChoctawProp.,L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex.App.–Waco 2003, no pet.) (interested witness, hearsay,and lack of personal knowledge); Rizkallah v. Conner,952 S.W.2d 580, 585-86 (Tex. App.–Houston [1st Dist.]1997, no pet.) (lack of personal knowledge andcompetence).

Defects in the substance of an affidavit, however,are not waived by the failure to obtain a ruling from thetrial court on the objection, and they may be raised forthe first time on appeal. Brown v. Brown 145 S.W.3d745, 751 (Tex. App.–Dallas 2004, pet. denied);McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex.App.–Houston [14th Dist.] 2003, pet. denied). Anaffidavit that is conclusory, for example, is substantivelydefective. Choctaw Props., L.L.C. v. Aledo I.S.D., 127S.W.3d 235, 241 (Tex. App.-Waco 2003, no pet.);McMahan, 108 S.W.3d at 498.

For example, objections to defects in the substanceof an affidavit include: (1) conclusory statements; and (2)lack of jurat. Stewart v. Sanmina Texas L.P., 156 S.W.3d198, 207 (Tex. App.–Dallas 2005, no pet.) (conclusory);Brown v. Brown 145 S.W.3d 745, 751 (Tex. App.–Dallas2004, pet. denied) (conclusory); Choctaw Props., L.L.C.v. Aledo I.S.D., 127 S.W.3d 235, 241-42 (Tex.App.-Waco 2003, no pet.) (lack of jurat and conclusory).

Court May Order Continuance for Evidence OpposingSummary Judgment

Should it appear from the affidavits of a partyopposing the motion that he cannot for reasons statedpresent by affidavit facts essential to justify hisopposition, the court may refuse the application for

judgment or may order a continuance to permit affidavitsto be obtained or depositions to be taken or discovery tobe had or may make such other order as is just. Tex. R.Civ. P. 166a(g).

When a party contends that it has not had anadequate opportunity for discovery before a summaryjudgment hearing, it must file either an affidavitexplaining the need for further discovery or a verifiedmotion for continuance. Tenneco Inc.v. Enterp. Prod.Co., 925 S.W.2d 640, 647 (Tex. 1996); Martinez v.Leeds, 218 S.W.3d 845, 849 n.3 (Tex. App.–El Paso2007, no pet.).

But, it is risky to rely on such a request. In NationalUnion Fire Insurance Co. v. CBI Industries, Inc., 907S.W.2d 517 (Tex.1995) (per curiam), the Texas SupremeCourt found that because the facts necessary to supportthe summary judgment were sufficiently developed whenthe motion was filed, no further discovery was needed.Id. at 521-22.

AcknowledgmentAn affidavit should have an acknowledgment,

typically by a notary, that meets the requirements ofChapter 121 of the Civil Practice & Remedies Code. Theform of an ordinary certificate of acknowledgment mustbe substantially as follows:

“The State of ____________,“County of ____________,

“Before me ____________ (here insert thename and character of the officer) on this daypersonally appeared ________________,known to me (or proved to me on the oath of_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ o r t h r o u g h__________________ (description of identitycard or other document)) to be the personwhose name is subscribed to the foregoinginstrument and acknowledged to me that heexecuted the same for the purposes andconsideration therein expressed.

(Seal) “Given under my hand and seal of officethis ________ day of ____________, A.D.,________.”

Tex. Civ. Prac. & Rem. Code 121.007.

E. Bulletproofing Your Documentary EvidenceFirst things first. Make sure that you have given

proper notice of the hearing on the motion for summaryjudgment. When you are preparing evidence to go alongwith your motion for summary judgment, make sure thatit will withstand an evidentiary challenge from youropposing counsel. Your might be able to ask your


























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opposing counsel to stipulate to the admissibility of someof the items. Always try this method first. This isespecially important in the case of bank records. Bankrecords have so much information in them that in this dayof technological piracy, if these kinds of records fell intothe wrong hands, your client could suffer a greatfinancial loss. If you are not successful in this endeavorthen it is time to brush up on the Texas Rules ofEvidence. They apply when you file a motion forsummary judgment.

All business records should include a businessrecords affidavit. If you have an expert that you areusing, include an affidavit from him or her supporting theposition that the expert took. Be certain to include yourexpert’s qualifications in the affidavit to help fend off aDaubert/Robinson challenge. If you want to use all orpart of a deposition taken in the case, note that thedeposition must be signed by the deponent or have thereturn from the court reporter. Transcripts from previouscourt proceedings can also be used. For governmentaldocuments, submit certified or official copies of each andevery document. And remember, any pleading that youropposing counsel has propounded in response todiscovery is admissible (i.e. answers to interrogatories,responses to request for admissions, responses to requestfor disclosure). But note that while documents producedby the other side are authenticated, they are notautomatically admissible See if anything your opposingcounsel submitted to you can be used against them inyour motion for summary judgment.

F. Check Your PleadingsWhen filing a motion for traditional summary

judgment, one of the most basic, yet important, steps isto check your pleadings against your motion. In order toavoid special exceptions from the other side or havingyour motion denied simply because it is not proper, youmust make sure that what you have pleaded and the reliefyou seek match up with the issues you raise in yourmotion for summary judgment. Tex. R. Civ. P. Rule 90,91 (2007). If the other side does challenge the motionwith special exceptions, you can amend your pleadingsto reflect the relief sought through summary judgment.Tex. R. Civ. Pro. Rule 64. If, for some reason, the otherparty does not file for special exceptions forcing you toamend your pleading, then the issue will be tried by theirimplied consent as if the issue had been properly pleaded.Tex. R. Civ. Pro. Rule 67 (2007); Roark v. Stalworth Oil& Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991).

IX. RESPONDING TO THE AFFIRMATIVEMOTION FOR SUMMARY JUDGMENTResponding to an affirmative motion to summary

judgment is ironically similar to filing a contemptresponse. It requires technical precision in pointing out

errors in the offered proof of the party seeking summaryjudgment.

A response, of course, also primarily involvesshowing a court that genuine issues of material fact existon the particular claim or defense. In the case of a noevidence motion for summary judgment, the responseinvolves generating some evidence to support eachelement that has been challenged.

The response involves a three-pronged attack on themotion for summary judgment and its attendant proof:

1. Challenge the legal position. 2. Attack the other party’s proof.3. Attack the underlying pleadings.

If this three-pronged attack is executed effectively, thetrial court should have serious doubts about granting thesummary judgment.

A. Challenging Their Legal PositionTo defeat a motion for summary judgment, the non-

movant must show that there is a genuine issue ofmaterial fact that must be decided by the finder of fact.Tex. R. Civ. Pro. 166(a) (2007). The first step towardsprevailing in summary judgment is to match theirpleadings up against the motion for summary judgment.If they have sought relief that is not properly pleaded,you must file special exceptions or you waive yourcomplaint, and the issue will be tried as if it wereproperly pleaded. Tex. R. Civ. Pro. Rule 67 (2007). Theexception preserves the issue on appeal if the groundspresented are unclear or ambiguous. McConnell v.Southside ISD, 858 S.W.2d 337, 342 (Tex. 1993)Defects in form can be waived, defects in substance arenot. Rizkallah v. Conner, 952 S.W.2d 580, 585 (Tex.App. – Houston [1st Dist.] 1997, no writ). One tactic thatthe McConnell court does recommend, is that the otherside’s being unclear or ambiguous in their motion forsummary judgment does call for special exceptions;however, if the problems with the motion are that it doesnot state and grounds or states some and not others,special exceptions should not be filed because that wouldjust give the other side a chance to fix the problem.Instead, the responding party “should use these defects asa basis to defeat the summary judgment motion on themerits.” 858 S.W.2d 337 at 342.

B. Attacking Their EvidenceOne must object to formal defects in affidavits or

other summary judgment evidence. Tex.R. Civ. P.166a(f), Tex. R. Civ. P. Upon objection, the erring partyshould be provided an opportunity to amend,accompanied by a refusal to amend, before the objectionis preserved for appeal. Dailey v. Albertson’s, 83 S.W.3d222, 225 (Tex.App.–El Paso 2002). Objections to








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affidavits include objections to the competency of theaffiant; objections to legal and/or factual conclusions;hearsay; objections to lack of personal knowledge;objections to a defective jurat; failure to attach exhibits;failure to lay the proper evidentiary predicate; failure tooffer the best evidence; and, any Daubert challenges toexperts’ affidavits.

See Woods Exploration & Producing Co. v. ArklaEquip. Co., 528 S.W.2d 568, 570-71 (Tex.1975)(affiant);Rizkallah v. Conner, 952 S.W.2d 580, 587(Tex.App.–Houston [1st Dist] 1997, no writ)(conclusorystatements); Southland Corp. V. Lewis, 940 S.W.2d 83,85 (Tex. 1997)(hearsay); Grand Prairie ISD v. Vaughan,792 S.W.2d 944, 945 (Tex. 1990)(lack of personalknowledge); Laman v. Big Spring State Hosp., 970S.W.2d 670, 672 (Tex.App.–Eastland 1998, pet.denied)(defective jurat); Mathis v. Bocell, 982 S.W.2d52, 59-62 (Tex. App.–Houston [1st Dist.] 1998, nopet.)(failure to attach exhibits); Mercer v. Daoran Corp.,676 S.W.2d 580, 584 (Tex. 1984)(failure to offer bestevidence); Daubert v. Merrill Dow Pharmaceuticals,Inc., 509 U.S. 579 (1993); E.I. duPont de Nemours v.Robinson, 923 S.W.2d 549, 566-67 (Tex.1995)(challenging the methodology of the expert).

After making one’s objections, one should secure awritten ruling from the trial court even though there is asplit among the courts of appeal as to the necessity ofpreserving a ruling.

The Courts of Appeals in Corpus Christi, Dallas,Fort Worth, Waco, and the Fourteenth Court of Appealsin Houston contend that when a trial court grantssummary judgment, the trial court implicitly overrulesthe objections of the opposing party. See, Clement v.City of Plano, 26 S.W.3d 544, 550 (Tex.App.–Dallas2000, no pet), Dagley v. Haag Eng’g, 18 S.W.3d 787,795 (Tex. App–Houston [14th Dist.] 2000, no pet);Columbia Rio Grande Reg’l. Hosp. v. Stover, 17 S.W.3d387, 396-96 (Tex.App.–Corpus Christi 2000, no pet.);Frazier v. You, 987 S.W.2d 607, 610 (Tex.App.–FortWorth 1999, pet. denied).

1. AffidavitsAmong the many types of evidence one can use to

establish one’s basis for summary judgment is theaffidavit.2 The affidavit may be the most cost-effectiveand readily obtainable form of summary judgmentevidence. The person making the affidavit must becompetent to make the affidavit and have personalknowledge of the facts contained in the affidavit. Theperson making the affidavit can be a party, an interested

witness, or an expert witness. Rule 166a(c), Tex. R. Civ.Proc. The fact contained in the affidavit must be factsthat are admissible evidence. The affidavit must besworn to, by the affiant, before “an officer authorized toadminister oaths,” usually a notary public. Rule 166a(f),Tex. R. Civ. P. The affidavit(s) must be attached to themotion for summary judgment. MBank Brenham v.Barrera, 721 S.W.2d 840, 842 (Tex. 1986); Rule 166a(c),Tex. R. Civ. P. The trial court is not required to “searchthe record for evidence” to support summary judgment.King v. Wells Fargo Bank, N.A., 205 S.W.3d 731, 735(Tex.App.–Dallas 2006, no pet.).

Merely reciting that the information contained in theaffidavit is within the personal knowledge of the affiantis not sufficient to overcome a hearsay objection.However, if the respondent to a motion for summaryjudgment fails to object to hearsay within an affidavit,that hearsay evidence will “not be denied probativevalue” in support a summary judgment. Einhorn v.LaChance, 823 S.W.2d 405, 410 (Tex.App.–Houston [1st

Dist.] 1992, writ dism’d w.o.j.). The facts contained inan affidavit must be more than legal conclusions whichrender an affidavit incompetent to support summaryjudgment. See Anderson v. Snider, 808 S.W.2d 54, 55(Tex. 1991).

The affidavit used as summary judgment evidencemust contain a jurat as opposed to an acknowledgment.An instrument containing an acknowledgment is not anaffidavit. Perkins v. Crittenden, 462 S.W.2d 565, 568(Tex. 1970). An affidavit is “a statement in writing of afact or facts signed by the party making it, and Sworn tobefore some officer authorized to Administer oaths, andofficially certified to by such officer under his seal ofoffice.” Perkins, 462 S.W.2d at 567. Anacknowledgment is a “formal declaration or admissionbefore an authorized public officer by a person who hasexecuted an instrument that such instrument is his act anddeed.” Wilde v. Buchanan, 303 S.W.2d 518, 519 (Tex.Civ. App.–Austin 1957) ; a jurat, on the other hand, is “asimple statement that an instrument is subscribed andsworn to or affirmed before a proper officer without thefurther statement that it is the act or deed of the personmaking it.” Wilde, 303 S.W.2d at 519.

An affiant must be competent to make an affidavit.Rule 166a(f), Tex. R. Civ. P. Competency is set forth inRule 601 of the Texas Rules of Evidence. One who isnon compos mentis cannot swear to affidavit to be usedas evidence in motion for summary judgment or aresponse to that motion. Children are also no competentto swear to an affidavit unless, after examination, a Courtdetermines the child to be competent. Rule 601, Tex. R.Evid.

Affidavits from a party, interested witnesses, or fromexperts may support summary judgment if the affidavit isuncontroverted and is “clear, positive and direct,

2 Proper summary judgment proof consists of admissions,affidavits, stipulations of parties, authenticated or certifiedpublic records, deposition transcripts, and interrogatoryanswers. Rule 166a(c)(ii), Tex. R. Civ. P.


























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otherwise credible and free from contradictions andinconsistencies.” Rule 166a(c), Tex. R. Civ. P. A layperson cannot controvert the affidavit of an expert. SeeAnderson v. Snider, 808 S.W.2d 54, 55 (Tex, 1991).However, if an affidavit consists only of legalconclusions, then that affidavit is not sufficient to supportsummary judgment as a matter of law. Mercer v. DaoranCorp., 676 S.W.2d 580, 583 (Tex.1984); Hidalgo v.Surety Savings & Loan Ass'n, 487 S.W.2d 702, 703(Tex.1972) (per curiam). Affidavits containingconclusory statements of expert witnesses are alsoinsufficient to support summary judgment. Vinklarek v.Cane, 691 S.W.2d 108, 111 (Tex.App.-Austin 1985, writref'd n.r.e.).

2. Documentary EvidenceDocuments providing evidence for summary

judgment may consist of “deposition transcripts,interrogatory answers and other discovery responsesreferenced or set forth in the motion or response, inaddition to “pleadings, admissions, affidavits,stipulations of the parties,3 and authenticated or certifiedpublic records.4” As a general rule, pleadings–evensworn pleadings–are not summary judgment evidence.Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d656, 660 (Tex.1995). However, when the an opposingparty’s pleadings contain statements of fact oradmissions that directly contradict that party’s theory ofrecovery, then the pleadings may be used as summaryjudgment evidence for the other party. See Lyons v.Lindsey Morden Claims Mgmt., 985 S.W.2d 86, 92(Tex.App.–El Paso 1998, no pet.).

Discovery documents filed with the court may berelied upon as summary judgment evidence provided thatthe motion or the response refers to the discovery. Rule166a(c) Tex. R. Civ. P.; see also Steinkamp v. Caremark,3 S.W.3d 191, 194 (Tex. App.–El Paso 1999, pet.denied). Additionally, one should ask the court to takejudicial notice of the filed documents upon which theparty relies upon as summary judgment evidence. Saenzv. Southern Union Gas, 999 S.W.2d 490, 494 (Tex.App.–El Paso 1999). A party who relies upon his own

discovery responses to support summary judgment mustauthenticate those responses. Blanche v. FirstNationwide Mortg. Corp., 74 S.W.3d 444, 451-52 (Tex.App.–Dallas 2002). Authentication is not required whenone relies upon the discovery responses of the opposingparty. Id. While deposition excerpts do not requireauthentication to be valid summary judgment evidence,excerpts should include a copy of the verification pagesigned by the court reporter to prevent any objections.McConathy v. McConathy, 869 S.W.2d 341, 342 (Tex.1994); see Rule 166a(d) Tex. R. Civ.P. While the ruleof procedure do not require one to include theverification page, it serves as an aid to the court.McConathy, 869 S.W.2d at 342. Documents must beproperly attached to the motion or to the response.

Discovery documents or other materials not filedwith the clerk of the court may be used as evidence in asummary judgment motion or response if copies of thematerials are filed and served on all parties together witha statement of intent to use the materials as summaryjudgment evidence. Rule 166a(d) Tex. R. Civ. P. Themovant must give the respondent twenty-one days noticeof the intent to use the materials and the respondent mustgive the movant at least seven days notice of intent torely upon unfiled documents to the movant. Id.

X. CRAFTING YOUR NO-EVIDENCE MOTIONFOR SUMMARY JUDGMENTJust as a traditional motion for summary judgment

can remove certain claims from your case, a no-evidencemotion for summary judgment can be used to show theCourt that your opponent really has no grounds withregard to a claim or defense. Furthermore, a no-evidencemotion for summary judgment is one of the most underutilized tools we have to root out and eliminate spuriousand unmeritorious claims.

Texas Rule of Civil Procedure 166a(i) states:

No-evidence motion. after adequate time fordiscovery, a party without presenting summaryjudgment evidence may move for summaryjudgment on the ground that there is noevidence of one or more essential elements ofa claim or defense on which an adverse partywould have the burden of proof at trial. Themotion must state the elements as to whichthere is no evidence. The court must grant themotion unless the respondent producessummary judgment evidence raising a genuineissue of material fact.

The first thing you should do is read the pleadings ofyour opponent very carefully. You should be familiarwith each element of each claim or defense that youropponent is raising in his Petition or his answer. Before

3Stipulations should be in writing, signed by both parties, andfiled with the court in accordance with Rule 11, Tex. R. Civ. P.

4Rule 902 of the Texas Rules of Evidence sets forth documentswhich are self-authenticated: domestic public documents underseal; domestic public documents not under seal; foreign publicdocuments; certified copies of public records; officialpublications; newspapers and periodicals; trade inscriptionsand the like; acknowledged documents; commercial paper andrelated documents; business records accompanied by [businessrecords] affidavit; and, presumptions under statutes or otherrules.














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you can file a no-evidence motion for summaryjudgment, there must have been an adequate time toconduct discovery. Tex. R. Civ. P. 166a(i). Byfamiliarizing yourself with the elements of youropponent’s claims, you can craft your discovery todevelop evidence regarding each claim or defense madeby your opponent. Thus, when you present your no-evidence motion for summary judgment, you can showthe court that you intentionally gave your opponent anopportunity to produce evidence in support of his claimprior to the no-evidence motion for summary judgmentbeing filed.

Once discovery is complete, and assuming that thereis no evidence to support a claim or defense of youropponent, prepare your no-evidence motion for summaryjudgment. Just as with a traditional motion for summaryjudgment, you must know each and every element ofyour opponent’s claims or defenses. This is criticallyimportant because Tex. R. Civ. P. 166a(i) requires you tostate each element of each claim or defense for whichthere is no evidence.

As a practical application, assume that youropponent claims in his petition for divorce that he hasseparate property. You send out your discovery askinghim to identify his separate property in interrogatoriesand to produce documents to substantiate that separateproperty claim. After your opponent provides theresponse to written discovery showing that there is noevidence to support his pro-forma, form-book separateproperty claim, file the no-evidence motion for summaryjudgment.

Be thorough - do not simply say that there is noevidence to support the separate property claim.Remember what the elements of separate property are:(1) the property was owned or claimed by the spousebefore marriage; (2) the property was acquired by thespouse during marriage by gift, devise, or descent; or (3)the recovery for personal injuries sustained by the spouseduring marriage, except any recovery for loss of earningcapacity during marriage. As such, your no-evidencemotion for summary judgment would state:

A. Petitioner JOE SMITH has produced no evidencethat the 2007 Mercedes Benz was owned by JOESMITH before his marriage to Respondent NANCYSMITH.

B. Petitioner JOE SMITH has produced no evidencethat the 2007 Mercedes Benz was claimed by JOESMITH before his marriage to Respondent NANCYSMITH.

C. Petitioner JOE SMITH has produced no evidencethat the 2007 Mercedes Benz was acquired by JOESMITH during his marriage to Respondent NANCYSMITH by gift.

D. Petitioner JOE SMITH has produced no evidencethat the 2007 Mercedes Benz was acquired by JOE

SMITH during his marriage to Respondent NANCYSMITH by devise.

E. Petitioner JOE SMITH has produced no evidencethat the 2007 Mercedes Benz was acquired by JOESMITH during his marriage to Respondent NANCYSMITH by descent.

F. Petitioner JOE SMITH has produced no evidencethat the 2007 Mercedes Benz was acquired for therecovery of personal injuries.

G. Petitioner JOE SMITH has produced no clear andconvincing evidence that the 2007 Mercedes Benzis the separate property of JOE SMITH.

Even if you know your opponent may raise someevidence in response to your no-evidence motion forsummary judgment, file it nonetheless. If nothing else,you will force your opponent to produce his or herevidence, and the no-evidence motion for summaryjudgment has then become an important discoverydevice. Your worst case scenario is that you obtaininformation necessary to advise your client. The bestcase scenario is that your opponent cannot produce thenecessary evidence to support his claim, and, therefore,that unmeritorious claim is removed from the purview ofthe fact finder.

XI. RESPONDING TO THE NO-EVIDENCEMOTIONYou might be on the receiving end of a no-evidence

motion for summary judgment. If you are served withone of these, do not panic. Just as with every othermotion, there are guidelines. First, have you done or hadtime to do enough discovery to effectively respond?When a party contends that it has not had an adequatetime for discovery before a summary judgment hearing,they can seek it by filing a an affidavit explaining theneed for further discovery. Tenneco, Inc. v. EnterpriseProds., 925 S.W.2d 640, 647 (Tex.1 996).

A. Need Additional TimeThe courts have created a non-exhaustive list of

factors to consider when a request to continue a motionfor summary judgment is made for purposes of seekingadditional discovery. These factors include the length oftime the case has been on file, the materiality and purposeof the discovery sought and whether the party seeking thecontinuance has exercised due diligence to obtain thediscovery sought. Comm. Initiatives, inc. v. Chase Bank,153 S.W.3d 270, 278 (Tex.App.–El Paso 2004, no pet.).A ruling on a motion for continuance of a summaryjudgment is reviewed by an abuse of discretion standard.See Esquivel v. Mappelli Meat Packing Co., 932 S.W.2d612, 616 (Texas. App.- San Antonio, 1996, writ denied.)

Rulings on a motion for continuance are fact specificand must be considered on a case by case basis. In City of






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San Antonio, En Seguidos’ motion was initially set forAugust 24, 2005. The city filed a motion for continuanceon August 8, 2005 seeking at least another ninety daysfor discovery as the lawsuit had only been on file for two(2) months. The city also referenced the ten listedwitnesses in En Seguido’s responses to request fordisclosure as people with relevant knowledge of relevantfacts to be deposed.

The motion for summary judgment was reset toNovember 7, 2005. Prior to that hearing, the city re-urged its motion for continuance. The trial court deniedthe city’s request. The appellate court upheld the denialof the city’s motion finding that November 7, 2005 wasan agreed reset date for the motion for summaryjudgement. The appellate court also found that eight ofthe ten people form which the city was seekinginformation were city or governmental employees. Thecity had deposed the other two of the ten witnesses whowere associated with En Seguido. The lesson to learn isbecause the results of a summary judgment motion canbe so devastating, be diligent in pursuing your discovery.

B. Don’t Need to MarshallUnder the Texas Rules of Civil Procedure, a party

may move for no-evidence summary judgment if " thereis no evidence of one or more essential elements of aclaim or defense on which an adverse party would havethe burden of proof at trial. The motion must state theelements as to which there is no evidence." Tex. R. Civ.P. 166(a)(i). Thus, rule 166(a)(i) permits a party to filea no-evidence motion for summary judgment as to one ormultiple elements. The rule does not require therespondent to the motion to marshall all of theirevidence, but only to bring forth more than a scintilla ofevidence that raises a fact issue on the challengedelements. See Tex. R. Civ. P. 166(a). See Macias v.Fiesta Mart, Inc., 988 S.W.2d 316, 316-17(Tex.App.-Houston [1st Dist.] 1999, no pet.). So youdon’t need to throw the kitchen sink at the other side, butyou do need to ascertain that you have addressed eachelement of your claims. The best practice is to have toomuch evidence rather than too little.

XII. CONCLUSION Summary judgment practice should be encouraged

by the bench and bar to eliminate un-meritorious claimsand defenses, and to streamline line litigation andpromote settlement. Overlooking such a valuable tool assummary judgment in our practice is a significantmistake. This paper offers a roadmap for integratingsummary judgments into your practice.
