                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                         §
 MARIA CONCEPCION LOPEZ-                                                   No. 08-08-00343-CV
 FRANCO,                                                 §
                                                                                Appeal from
                            Appellant,                   §
                                                                            171st District Court
 v.                                                      §
                                                                        of El Paso County, Texas
 BLANCA ESTELLA RIVERA                                   §
 HERNANDEZ, appearing as                                                     (TC # 2007-4145)
 representative of the Estate of                         §
 BARBARA A. FRANCO, A Deceased
 Minor,                                                 §

                            Appellee.


                                                 OPINION

       This appeal involves competing claims to a life insurance policy between the insured’s

mother and the mother of his deceased daughter who was born out of wedlock. As counsel for

Appellant suggests, “[i]t is a correct assumption that Lopez and Hernandez1 do not like each other.

For the reasons that follow, we affirm.

                                       FACTUAL BACKGROUND

       This is an interpleader case filed by American General Life and Accident Insurance Company

involving the distribution of life insurance proceeds. A $500,000 life insurance policy insured the

life of Luis A. Franco-Lopez. The application named three beneficiaries: (1) Maria Concepcion

Lopez, the insured’s mother and Appellant in these proceedings; (2) Luis Anaya, the insured’s son;

and (3) Barbara A. Franco, the insured’s daughter. The insurance contract specifically provided that


       1
           W e will likewise refer to Appellant as Lopez and Appellee as Hernandez.
the application is part of the policy.2

         The insured died on December 15, 2003, having performed all obligations under the policy.

Upon American General’s receipt of proof of his death, the proceeds became due and payable.

Lopez demanded American General pay the entire amount to her as first beneficiary. American

General paid $166,666.67 to Lopez as her uncontested one-third share of the proceeds. In September

2007, American General filed an interpleader action as to the remaining two-thirds. All three parties

listed as defendants filed answers, and the court entered an agreed order granting the request for

interpleader. American General deposited the remaining $350,957.25 into the registry of the court

until such time as the competing claims were settled.

         At the time of the insured’s death, all three beneficiaries were living. Eleven months later,

Barbara died at the tender age of three years.3 Hernandez is Barbara’s mother. At the time suit was

filed, no administration of Barbara’s estate had been taken out.4

                                                  Rule 11 Agreement

         On February 2, 2008, Lopez and Maria Anaya entered into a Rule 11 agreement with regard

to the insurance proceeds. They agreed that one-half of the money in the court registry be distributed

to Lopez. After payment of attorneys’ fees and costs, Lopez would then deposit the remainder of

the money into an interest bearing account in the name of Victor Falvey, Luis’s attorney ad litem.

Falvey, as trustee, would then pay himself fees and release any interest earned on the account to




        2
           Luis and Barbara were half siblings. Luis is the son of the decedent and his wife, Maria Anaya. The decedent
evidently had an affair with Hernandez which led to the birth of a daughter, Barbara.

         3
             Tragically, little Barbara and her father were shot in the same attack in our sister city of Juarez.

         4
           In its interpleader motion, American General named Lopez, Luis’s mother, and Hernandez as defendants.
Hernandez was named individually and as representative of Barbara’s estate because she was Barbara’s sole surviving
parent and was a possible beneficiary under the policy. Hernandez later abandoned any claim in her individual capacity.
Luis’s mother on a monthly basis. Luis would directly receive 25 percent of the principal when he

turned eighteen.. Falvey would retain the remaining 75 percent, distributing half to Luis when he

turned twenty-two and the other half when he turned twenty-six. Lopez also agreed to pay Maria

Anaya $5,000.

                             Competing Summary Judgment Motions

       The crux of Hernandez’s argument is that the insurance policy named three first

beneficiaries: Lopez, Luis, and Barbara. Lopez emphasizes that Hernandez was not named as a

beneficiary in the policy, in the application for life insurance, or in any other documentation. From

this, Lopez concludes that Hernandez is not entitled to recover in her individual capacity. Lopez also

alleges that because there was no probate of Barbara’s estate, or an order from a court of competent

jurisdiction naming Hernandez as representative of the estate, Hernandez is not entitled to recover

in a representative capacity either. Lopez also maintains that she and the deceased agreed to obtain

the life insurance policy together, and that she agreed to make--and did make--all the monthly

premiums on the policy. She alleges further that the deceased intended her to be the primary

beneficiary under the policy so that she could care for his children in the event of his death.

The trial court granted Hernandez’s motion, determining that (1) she was properly before the court

as representative of her daughter’s estate, and (2) there was no need for administration of the estate.

       The final judgment was entered on September 24, 2008.
                                    STANDARD OF REVIEW

       To prevail on summary judgment, the movant has the burden of proving that there is no

genuine issue of material fact and the movant is entitled to judgment as a matter of law.

TEX .R.CIV .P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). A defendant moving for

summary judgment must either (1) disprove at least one element of the plaintiff’s cause of action or

(2) plead and conclusively establish each essential element of an affirmative defense to rebut

plaintiff’s cause. Cathey, 900 S.W.2d at 341. In deciding whether there is a disputed material fact

precluding summary judgment, we take as true evidence favorable to the non-movant, indulging

every reasonable inference and resolving any doubts in its favor. Provident Life & Accident Ins. Co.

v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A matter is conclusively established if reasonable minds

could not differ as to the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168

S.W.3d 802, 816 (Tex.2005). Where, as here, both sides move for summary judgment and the trial

court grants one motion and denies the other, we review the summary judgment proof presented by

both sides and determine all questions presented. See CenterPoint Energy Houston Elec., L.L.P. v.

Old TJC Co., 177 S.W.3d 425, 430 (Tex.App.--Houston [1st Dist.] 2005, pet. denied). The

reviewing court should render the judgment that the trial court should have rendered. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

                                  STANDING AND CAPACITY

       Because of the overlapping themes of the issues presented, we will address Lopez’s first

seven issues together. Each of these hinges on the same argument: that administration of Barbara’s

estate was necessary and therefore, because Hernandez did not initiate probate proceedings rendering

her a court appointed representative, she did not have standing or capacity to represent her daughter’s
estate.5

           It is undisputed that Hernandez was never appointed representative of Barbara’s estate. In

arguing their respective theories, both parties discuss Shepherd v. Ledford, 962 S.W.2d 29 (Tex.

1998). There, the court held that an heir may appear as representative of the decedent’s estate if the

heir pleads and proves that no administration of the decedent’s estate is pending or necessary. Id.

at 31. Lopez insists that Shepherd does not apply because that case involved a survival action rather

than a claim to insurance proceeds. Further, regardless of Shepherd, a probate proceeding was

necessary here because Barbara died leaving property (a claim to a portion of the insurance proceeds)

and that “she left debts owing and she left heirs.”

           Hernandez counters that Shepherd is not limited to survival actions because: (1) the case

cited by Shepherd involved a lease between the plaintiff’s decedent and the defendants; and (2) to

limit Shepherd in such a way creates a presumption favoring probate in direct contradiction with the

Texas Probate Code.

           [n]o administration of any estate shall be granted unless there exists a necessity
           therefor, such necessity to be determined by the court hearing the application. Such
           necessity shall be deemed to exist if two or more debts exist against the estate, or if
           or when it is desired to have the county court partition the estate among the
           distributees.

TEX .PROB.CODE ANN . § 178(b)(West Supp. 2010).

           Lopez provided an affidavit that she paid for Barbara’s funeral expenses, thus creating a debt

of Barbara’s estate. But there is no evidence of a promise to repay the money, nor could Barbara

have made such a promise at three years of age. While Barbara did leave her mother and a half

brother as potential heirs, the half brother referred to by Lopez in this context is not Luis, nor was



           5
          Although Lopez argues issues of standing and capacity, the Supreme Court has clarified that the true issue is
capacity. See Austin Nursing Center, Inc. v. Lovato, 171 S.W .3d 845, 850-851 (Tex. 2005).
the decedent his father. There is no evidence that the two potential heirs desired to have Barbara’s

estate partitioned or that they had any conflicting interests or claims to the proceeds. We conclude

that no administration of Barbara’s estate was necessary and that Hernandez had standing and

capacity to bring the suit. We overrule Issues One through Seven.

                                          JURISDICTION

       In Issue Eight, Lopez contends that the trial court lacked jurisdiction over any claim by

Hernandez as representative of the Estate, this time because distribution of insurance proceeds is not

within the concurrent provisions of the Texas Probate Code. In support of the argument that the

probate court had exclusive jurisdiction over the case, Lopez relies on Section 5(d), which, prior to

its repeal in 2009, provided that:

       In those counties in which there is a statutory probate court, all applications,
       petitions, and motions regarding probate or administrations shall be filed and heard
       in the statutory probate court.

TEX .PROB.CODE ANN . § 5(d)(West 2003). Hernandez responds that probate courts only have

exclusive jurisdiction over probate proceedings. She contends that an interpleader action in which

one of the claimants is the estate of the decedent is not a “probate proceeding” within the meaning

of the Probate Code. Rather, it is a proceeding over which district courts have concurrent

jurisdiction. She directs us to Section 5(e), which was not repealed, and Section 4H(4):

       5(e) A statutory probate court has concurrent jurisdiction with the district court in all
       personal injury, survival, or wrongful death actions by or against a person in the
       person’s capacity as a personal representative, in all actions by or against a trustee,
       in all actions involving an inter vivos trust, testamentary trust, or charitable trust, and
       in all actions involving a personal representative of an estate in which each other
       party aligned with the personal representative is not an interested person in that
       estate. For purposes of this section, ‘charitable trust’ includes a charitable trust as
       defined by Section 123.001, Property Code.

                                            .       .      .
       4H: A statutory probate court has concurrent jurisdiction with the district court in:

                                            .      .      .

               (4) an action involving a personal representative of an estate in which each
               other party aligned with the personal representative is not an interested person
               in that estate.

TEX .PROB.CODE ANN . §§ 5(e); 4H(4)(West Supp. 2010)

       The interpleader action listed three parties as defendants: Lopez, Luis, and Hernandez as

representative of Barbara’s estate. There was no evidence that Lopez or Luis had any claims against

Barbara’s estate which would make them “interested” persons. We overrule Issue Eight.

                                            AMBIGUITY

       In Issue Nine, Lopez challenges the trial court’s finding that no ambiguity existed in the

application for insurance.     She contends that because two sections of the application are

irreconcilable, there is a genuine issue of material fact which must be submitted to a jury for

resolution. In short, she claims that because she and Hernandez interpret the application differently,

ambiguity is established as a matter of law. We disagree.

       An insurance policy is a contract, and it is governed by the same rules of construction

applicable to all contracts. Balandran v. Safeco Ins. Co. of America, 972 S.W.2d 738, 740-41 (Tex.

1998). The court’s primary goal is to give effect to the written expression of the parties’ intent. Id.

at 741. The decedent’s policy provided that, “[a]ll surviving Beneficiaries of the same class will

share equally in any payment to that class, unless otherwise stated.” The Application for Life

Insurance (defined as part of the insurance policy), has two portions which, when combined, give

rise to this dispute. First, section fourteen is entitled, “Beneficiary, with right to change.” Directly

to the right of the title, the words “see remarks” appear in parenthesis. In the box for section

fourteen, there are two lines: “a. First” and “b. Second.” Above the line to designate the name,
relationship, and age of the first beneficiary, the deceased wrote, “Maria C. Lopez-Franco mother

(56).” Between the lines for first and second beneficiaries he wrote, “Luis A. Franco-Anaya son,”

and on the line to designate second beneficiaries he wrote, “Barbara A. Franco Rivera daughter.”

The “Remarks” section on page four of the application contains the following language:

                                        First Beneficiaries

                                    (mother)
       MA. Concepcion Lopez [sic] Franco
       Luis Antonio Franco Anaya     (son &
       Barbara Aleida Franco Rivera   daughter)

       Whether a contract is ambiguous is a question of law. Heritage Resources, Inc. v.

NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). If the contract is so worded that it can be given a

certain or definite legal meaning or interpretation, then it is not ambiguous and a court should

construe the contract as a matter of law. SAS Institute, Inc. v. Breitenfeld, 167 S.W.3d 840, 841

(Tex. 2005); ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). We construe

an unambiguous contract according to the plain meaning of its express wording. Lyons v.

Montgomery, 701 S.W.2d 641, 643 (Tex. 1985). Unambiguous contracts are enforced as written.

Heritage Resources, Inc., 939 S.W.2d at 121.

       “A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably

susceptible to more than one interpretation.” Id. However, a contract is ambiguous when its

meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning. Nevarez

v. Ehrlich, 296 S.W.3d 738, 742 (Tex.App.--El Paso 2009, no pet.). Not every difference in the

interpretation of a contract amounts to an ambiguity. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132,

134 (Tex. 1994). Mere disagreement over the meaning of a provision in the contract does not

make the terms ambiguous. Richardson Lifestyle Association v. Houston, 853 S.W.2d 796, 800
(Tex.App.--Dallas 1993, writ denied). Likewise, uncertainty or lack of clarity in the language chosen

by the parties is insufficient to render a contract ambiguous. Preston Ridge Fin. Servs. Corp. v.

Tyler, 796 S.W.2d 772, 777 (Tex.App.--Dallas 1990, writ denied). Whether a contract is ambiguous

is a question of law for the court to decide by looking at the contract as a whole in light of the

circumstances present when the contract was entered. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.

1983). When a contract contains an ambiguity, the granting of a motion for summary judgment is

improper because the interpretation of the instrument becomes a fact issue. Id.

       We determine whether a contract is ambiguous by looking at the contract as a whole in light

of the circumstances present when the parties entered the contract. Universal Health Servs., Inc. v.

Renaissance Women’s Group, P.A., 121 S.W.3d 742, 746 (Tex. 2003). If a contract is determined

to be ambiguous, then a court may consider extraneous evidence to ascertain the true meaning of the

instrument. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995).

       An ambiguity may be either patent or latent. Id. A patent ambiguity is evident on the face

of the contract. Id. A latent ambiguity arises when a contract that is unambiguous on its face is

applied to the subject matter with which it deals and an ambiguity appears by reason of some

collateral matter. Id. When a contract contains an ambiguity, either patent or latent, the

interpretation of the instrument becomes a fact issue. Coker, 650 S.W.2d at 394; Quality Infusion

Care, Inc. v. Health Care Service Corp., 224 S.W.3d 369, 379 (Tex.App.--Houston [1st Dist.] 2006,

no pet.). The trier of fact must resolve the ambiguity by determining the true intent of the parties.

Coker, 650 S.W.2d at 394-95.

       Considering the contract as a whole in light of the circumstances when the parties entered

it, we conclude that the contractual terms surrounding the designation of beneficiaries are

unambiguous. See Breitenfeld, 167 S.W.3d at 841; Universal Health Servs., Inc., 121 S.W.3d at
746; McLaughlin, 943 S.W.2d at 430. The contract is worded in such a way that it can be given a

certain or definite legal meaning or interpretation. See Breitenfeld, 167 S.W.3d at 841; McLaughlin,

943 S.W.2d at 430. Lopez, Luis, and Barbara were intended to serve equally as first beneficiaries.

We overrule Issue Nine.

                                 DISBURSEMENT OF FUNDS

       In Issue Ten, Lopez contends the trial court erred in ordering distribution to be made to

Hernandez and Richard M. Zamora jointly because Zamora was not a party to and had no claim

against the policy proceeds. Hernandez counters that even if Lopez is correct, she has not been

harmed by the error. We agree. To justify reversal, an Lopez must demonstrate that not only did

error occur, it was harmful. Bergholtz v. Southwestern Bell Yellow Pages, Inc., 324 S.W.3d 195, 198

(Tex.App.--El Paso 2010, no pet.)(a trial court’s error of law is reversible only if it causes harm);

TEX .R.APP .P. 44.1. We overrule Issue Ten and affirm the judgment of the trial court.



April 20, 2011
                                                      ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.
