Clifford Kenneth Phillips v. Barbara Jean Copeland

Opinion issued May 9, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00492-CV
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CLIFFORD KENNETH PHILLIPS, Appellant
V.
BARBARA JEAN COPELAND, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Case No. 61765I
MEMORANDUM OPINION
Clifford Kenneth Phillips appeals from the trial court’s summary judgment
in favor of Barbara Jean Copeland, who is Phillips’s sister. Phillips sued Copeland
under the Texas Theft Liability Act, alleging that Copeland unlawfully
appropriated his property, a mobile home and the personal property contained
therein. Phillips contended below that he originally owned the mobile home, but
that, before he was incarcerated, he transferred ownership of the mobile home and
its contents to his parents with the expectation that they would bequeath it to him
in their wills. When Phillips discovered that Copeland, on behalf of their mother
and under a power of attorney, had transferred the title to the mobile home to R &
C Rental Partnership, LLC, Phillips sued Copeland. In two points of error, Phillips
argues that the trial court erroneously granted summary judgment in Copeland’s
favor. We affirm.
Background
In December 1990, Phillips bought a used Fleetwood Mobile Home from
Continental Mobile Homes. Phillips admits that although he originally owned the
mobile home, he transferred ownership of the mobile home to his parents before he
was incarcerated. However, Phillips contends that his parents agreed to leave him
the mobile home upon their deaths. In September 2008, while Phillips was still
incarcerated, the mobile home was damaged in Hurricane Ike. Phillips’s parents
received $4,473.31 from the insurance company for the damage to the mobile
home.
In October 2008, Phillips’s mother executed a durable power of attorney
appointing her husband as attorney-in-fact and Copeland as successor attorney-in-
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fact. Phillips’s father passed away in February 2009, and his Last Will and
Testament, dated November 19, 2008, was admitted to probate in Union County,
Iowa. Under the terms of the will, Phillips’s mother received all of Phillips’s
father’s real and personal property. The will did not mention the mobile home and
did not purport to leave the mobile home to Phillips.
In June 2009, Copeland, pursuant to her authority as attorney-in-fact for
their mother under the power of attorney, conveyed the mobile home to R & C
Rental Partnership, LLC. After learning of this conveyance, Phillips sued
Copeland under the Texas Theft Liability Act, Chapter 134 of the Texas Civil
Practice and Remedies Code, alleging that she had unlawfully appropriated
property, consisting of the mobile home and the personal property contained
therein, belonging to Phillips.
Phillips moved for summary judgment on the grounds that he had proven
that he owned the mobile home and its contents and that Copeland had unlawfully
appropriated them from Phillips without his consent or permission. Therefore,
Phillips alleged, no genuine issue of material fact remained and he was entitled to
summary judgment as a matter of law. Copeland responded that Phillips failed to
conclusively establish ownership in the mobile home and its contents, and,
therefore, summary judgment in his favor was not appropriate. The trial court
agreed with Copeland and denied Phillips’s motion on February 21, 2012.
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Copeland also moved for a no-evidence and traditional summary judgment.
She argued that there was no evidence of three essential elements of Phillips’s theft
claim: (1) that she unlawfully appropriated, secured, or stole property (2) with the
intent to deprive Phillips, the alleged owner, of that property, and (3) that the
property allegedly stolen had any value. She also argued that her proof (1)
conclusively negated Phillips’s claim that he had a possessory right to the allegedly
stolen property, and (2) conclusively proved that she had a right to sell the property
under a valid power of attorney. In response to Copeland’s motion, Phillips argued
that he had established his ownership interest in the property and that the power of
attorney executed by his mother was invalid. Phillips also argued that it was never
the intent of his parents to sell or dispose of the mobile home; rather, his parents
intended him to get the property back on their deaths. The trial court granted
Copeland’s motion for summary judgment. Phillips appealed.
Discussion
A. Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). When a party has filed both a traditional and a
proper no-evidence summary judgment motion, we first review the trial court’s
summary judgment under the no-evidence standard of Texas Rule of Civil
Procedure 166a(i). Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 375
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(Tex. App.—Houston [1st Dist.] 2012, pet. denied) (citing Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)).
To prevail on a no-evidence motion for summary judgment, the movant
must establish that there is no evidence to support an essential element of the
nonmovant’s claim on which the nonmovant would have the burden of proof at
trial. TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the
nonmovant to present evidence raising a genuine issue of material fact as to each
of the elements specified in the motion. Essex Crane, 371 S.W.3d at 375; Hahn,
321 S.W.3d at 325. “The trial court must grant the motion unless the nonmovant
produces more than a scintilla of evidence raising a genuine issue of material fact
on the challenged elements.” Essex Crane, 371 S.W.3d at 375 (quoting Flameout
Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.
App.—Houston [1st Dist.] 1999, no pet.)). We review the evidence presented by
the motion and response in the light most favorable to the party against whom the
summary judgment was rendered, crediting evidence favorable to that party if
reasonable jurors could, and disregarding contrary evidence unless reasonable
jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
The party moving for traditional summary judgment bears the burden of
showing that no genuine issue of material fact exists and that it is entitled to
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judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A defendant
who conclusively negates at least one of the essential elements of a cause of action
is entitled to summary judgment. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494,
508 (Tex. 2010).
B. Applicable Law
Under the Texas Theft Liability Act, a person who commits theft—which
includes the unlawful appropriation of property under section 31.03 of the Penal
Code—is liable for the damages resulting from the theft. TEX. CIV. PRAC. & REM.
CODE ANN. §§ 134.002, 134.003 (West 2011). A theft occurs when (1) property is
(2) unlawfully appropriated (3) by someone (4) with intent to deprive the owner of
that property. TEX. PENAL CODE ANN. § 31.03 (West Supp. 2012); Anderson v.
State, 322 S.W.3d 401, 407 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
C. Analysis
In order to defeat Copeland’s no-evidence motion on Phillips’s Texas Theft
Liability Act claim, Phillips was required to establish that he was the owner of the
property allegedly unlawfully appropriated. See TEX. PENAL CODE ANN.
§ 31.03(a) (“A person commits an offense if he unlawfully appropriates property
with intent to deprive the owner of property.”); see also TEX. CIV. PRAC. & REM.
CODE ANN. § 134.005 (West 2011) (providing for recovery of damages for victim
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of theft). Phillips failed to adduce evidence sufficient to raise a fact issue on this
element. 1
In his response to Copeland’s motion for summary judgment, Phillips points
to four pieces of evidence that he contends raise a fact issue as to his ownership
interest: (1) his father’s will; (2) two typed and unsigned “codicils” to his father’s
will, which Phillips claims established his possessory interest in the mobile home
and its contents; (3) Phillips’s previously-filed unsworn declaration explaining that
the ownership of the mobile home would revert back to him upon the death of his
parents; and (4) a 2007 letter written by his parents to the Texas Board of Parsons
and Parole. We address each of these in turn.
First, Phillips’s reliance on his father’s will, dated November 19, 2008, does
not create a fact question as to ownership because the will does not mention the
mobile home, or its contents, and it does not purport to bequeath the mobile home,
or its contents, to Phillips. In fact, Phillips’s father’s will specifically states that he
bequeaths all of his property, whether real, personal, or mixed, to his wife,
Jeannette Phillips. No property is specifically bequeathed to Phillips; any bequest
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We note that in his response to Copeland’s motion and in his appellate brief,
Phillips admitted that he transferred ownership of the mobile home to his parents,
but he states that the ownership was to revert back to Phillips upon the death of his
parents. Considering his arguments on appeal in light of this admission, we
construe Phillips’s arguments relating to his ownership interest in this property as
twofold: (1) he had an ownership interest in the property based on an expectation
of inheritance; and (2) he actually inherited this property, under the terms of his
father’s will and codicils, following his father’s death.
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to Phillips is contingent upon Phillips’s mother predeceasing Phillip’s father.
Therefore, even if we take as true Phillip’s assertion that he transferred ownership
of the mobile home to his father with the understanding that he was to receive the
property after his father’s death, Phillips is not entitled to the mobile home under
the provisions of his father’s will as all of Phillips’s father’s property went to
Phillips’s mother.
Second, Phillips points this court to two “codicils” to his father’s will in
support of his assertion that he raised a fact issue regarding his ownership interest
in the mobile home and personal property. The first purported codicil is an
unsigned typed document setting forth several “special requests” related to Phillips
in the event he should still be incarcerated following the death of his parents. The
document directed that Phillips was to be buried next to his parents on his death;
noted from where his remains were to be retrieved; requested that a stone be placed
on his grave; and directed that Phillips is to receive $200 per month from his
inheritance while he is in prison. The second purported codicil is also an unsigned
typed document and identifies the location of certain property, including Phillips’s
father’s coin and stamp collections, magazines, tools, toys, and furniture. This
document states that this property should be held for Phillips and that nothing
should be disposed of without his consent. Finally, the document notes the
location of the mobile home and the amount and due date of the monthly rent.
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Neither of the purported “codicils” is signed by Phillips’s father, dated, or
attested to by witnesses. Furthermore, although one of the “codicils” indicates that
it was “Rcvd 6-18-05,” this is three years before the date of Phillips’s father’s will.
A codicil is a testamentary writing that is supplementary to an earlier testamentary
writing and must be executed with the formalities required in the making of a will.
Matter of Estate of Jansa, 670 S.W.2d 767, 767–68 (Tex. App.—Amarillo 1984,
no writ). The probate code requires that “[e]very last will and testament . . . shall
be in writing and signed by the testator in person . . . and shall, if not wholly in the
handwriting of the testator, be attested by two or more credible witnesses.” TEX.
PROB. CODE ANN. § 59(a) (West 2012). Because these “codicils” were not
executed with the formalities required of a will, they are not valid codicils.
Third, Phillips presented evidence of his previously-filed unsworn
declaration, in which he explained he and his parents agreed that the mobile home
was to revert back to Phillips upon the death of his parents. To the extent Phillips
is arguing that he had a property right in the mobile home and its contents due to
the fact that he expected to inherit this property upon his father’s (or mother’s)
death, this does not create a fact issue as to ownership because the possibility of
inheritance does not create a present interest or right of title in property. Davis v.
Davis, 734 S.W.2d 707, 709 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d
n.r.e.); see also Davis v. First Nat’l Bank of Waco, 161 S.W.2d 467, 472 (Tex.
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1942) (“An expectant heir has no present interest or right in property that he may
subsequently inherit and consequently he cannot maintain a suit for the
enforcement or adjudication of a right in the property.”).
Fourth, Phillips presented a letter written by his parents to the Texas Board
of Pardons and Parole, which Phillips contends demonstrates his parents never
intended to sell or dispose of the mobile home. The letter states that Phillips has
two addresses: one in Iowa and one in Texas. His parents go on to state that they
hope Phillips “will be allowed to Parole in Iowa where we, his family, have resided
for the past sixty-one years.” The fact that his parents stated that Philips had the
option to live at a Texas address—presumably the place where the mobile home
was kept—does not raise a fact issue as to Phillips’s ownership interest in the
mobile home or its contents.
Finally, we note that Phillips relies on several additional pieces of evidence
that he did not submit with his response to Copeland’s motion for summary
judgment. Specifically, he points this court to the following documents: (1) a list
of specific bequests to Phillips prepared by Phillips’s father; (2) a July 12, 2008
letter from Phillips’s father explaining the provision of his will establishing a trust
for Phillips in the event Phillips is still incarcerated upon the death of Phillips’s
parents; (3) a November 17, 2008 letter from Phillips’s father stating that his will
leaves the house in Iowa to Copeland “to make up for the more than $100,000
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we’ve given [Phillips];” and (4) a December 30, 2008 letter from Phillips’s father
stating that Phillips will receive his certificates and that all jewelry will be divided
equally. Phillips submitted all of these documents to the trial court on May 31,
2011, six months before he filed his response to Copeland’s motion for summary
judgment, in support of his document entitled “Advisory to the Court.”
Even if we were to consider this evidence to be proper summary judgment
evidence, we conclude that these documents do not raise a fact issue as to
Phillips’s ownership interest. First, the list of specific bequests, which is signed by
Phillips’s father, does not mention the mobile home or its contents. Moreover, it
provides for the specific bequest of certain property to Phillips only “[i]n the event
my wife, Jeannette Marion Phillips, predeceases me.” Here, Phillips’s father
predeceased Phillips’s mother. As for the three letters, none reference the mobile
home or its contents; they merely describe the provisions and bequests in Phillips’s
father’s will.
Having reviewed all of the summary-judgment evidence before the trial
court, we conclude that Phillips failed to present more than a scintilla of evidence
raising a genuine issue of material fact as to one of the essential elements of his
theft claim—his ownership interest in the mobile home and its contents.
Therefore, we hold that the trial court properly granted Copeland’s no-evidence
motion for summary judgment. See Essex Crane, 371 S.W.3d at 375.
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We overrule Phillips’s two points of error.
Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
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