                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-15-00623-CV

                       IN THE ESTATE OF Marjorie A. CHILDS, Deceased

                         From the Probate Court No. 2, Bexar County, Texas
                                   Trial Court No. 2014-PC-0056
                             Honorable Tom Rickhoff, Judge Presiding

                               OPINION ON MOTION FOR REHEARING

Opinion By:       Luz Elena D. Chapa, Justice

Sitting:          Karen Angelini, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 22, 2016

REVERSED AND REMANDED

           We deny appellee’s motion for rehearing. We withdraw our April 20, 2016 opinion and

judgment and substitute this opinion and judgment in their stead. Pamela Ann Childs McCaskill

and Susan Childs Addison appeal the trial court’s summary judgment in favor of their sister, Mollie

Childs. Pamela and Susan argue the trial court erred by declaring their contract with Mollie is

unenforceable as a matter of law and by rescinding the contract. We reverse and remand for further

proceedings.

                                           BACKGROUND

           Bertha Childs (the parties’ grandmother) bequeathed stock to her daughter (the parties’

mother), Marjorie Childs. Bertha’s will provided:
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        I give all shares of stock owned by me in Campbell Taggart Associated Bakeries,
        Inc. at the time of my death to my daughter, Marjorie Allen Childs, with the request
        that she use only the income in cash dividends from said shares during her lifetime
        and that on her death she make provision for said shares to be divided equally
        among her daughters, or the issue of any deceased daughter. Should it become wise
        at any time to sell these shares, it is my desire that the proceeds, or any reinvestment
        of the proceeds, be held and disposed of by my daughter at her death in the same
        manner.

In 1992, Marjorie gifted Mollie $190,000 worth of the stock.

        In 2008, Marjorie executed a will that suggested she understood Bertha’s will created a life

estate in the stock:

        Pursuant to the requirements of the life estate created for my benefit under Section
        II of the Will of Bertha Allen, the Anheuser Busch stock, which is derived from the
        Campbell Taggart Associated, Inc., stock addressed in the aforementioned Section
        II of Bertha Allen’s Will, shall be distributed to my daughters and their descendants,
        per stirpes. Furthermore, and also pursuant to the requirement of the life estate
        created for my benefit under Section II of Bertha Allen’s Will, if at the time of my
        death I no longer own the Anheuser Busch stock, then the proceeds or reinvestment
        of the proceeds shall be disctributed [sic] to my daughters and their descendants,
        per stirpes.

Marjorie thereafter received cash proceeds for her stock from a stock redemption, and entrusted

Mollie with placing the proceeds into brokerage accounts.

        Two separate “transfer on death” brokerage accounts were established. One account, at

Federated Securities Inc., contained two-thirds of the proceeds. Marjorie’s daughters were

designated as the beneficiaries: Mollie (33%), Pamela (34%), and Susan (33%). The other

brokerage account, at Raymond James & Associates, contained the remaining third of the

proceeds. Mollie was designated as the sole beneficiary of the Raymond James account. Mollie

took the account paperwork to Marjorie, who was living in an assisted-living community, and

Marjorie signed the paperwork to set up the accounts.




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       Pamela and Susan threatened to sue Mollie for abusing her position of power to obtain a

greater-than-equal portion of the stock proceeds. Mollie was asked to sign an agreement that, upon

Marjorie’s death, would divide the accounts equally:

       The entire assets subject to the life estate created by the will of Bertha Allen and
       referenced in the will of Marjorie A. Childs signed November 20, 2008, are
       contained within 2 brokerage accounts . . . . One brokerage account is held . . . at
       Federated Securities, the other . . . at Raymond James & Associates. In the event
       Pamela, Susan and Mollie are living at the time of death of Marjorie A. Childs, the
       accounts are to be divided and distributed as follows:

       The Federated Securities account to be split equally and distributed between Pam
       and Susan; the Raymond James account to be distributed in its entirety to Mollie.

After Pamela, Susan, and Mollie signed the agreement, Marjorie passed away.

       Mollie sued Pamela and Susan seeking a declaration that the contract was unenforceable.

The trial court granted Mollie’s traditional motion for summary judgment, “find[ing] that the

Agreement . . . is unenforceable and rescinded as a matter of law.” Pamela and Susan appeal,

arguing the trial court improperly granted summary judgment.

                                     STANDARD OF REVIEW

       “We review a summary judgment de novo.” City of San Antonio v. San Antonio Exp.-News,

47 S.W.3d 556, 561 (Tex. App.—San Antonio 2000, pet. denied). To prevail on a traditional

motion for summary judgment, the movant must show “there is no genuine issue as to any material

fact and the [movant] is entitled to judgment as a matter of law.” TEX. R. CIV. P. 166a(c); accord

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A plaintiff moving for summary

judgment on her claim must conclusively prove all the elements of her cause of action as a matter

of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). To determine whether a

plaintiff-movant has met her burden, we examine the evidence presented in the motion and

response. Jacobs v. Huser Const., Inc., 429 S.W.3d 700, 702 (Tex. App.—San Antonio 2014, no

pet.). Once the movant has established a right to summary judgment, the burden shifts to the
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respondent to present evidence that would raise a genuine issue of material fact. City of Houston

v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

       We take as true all evidence favorable to the nonmovant, resolve all conflicts in the

evidence in the non-movants’ favor, and “indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor.” Rhône-Poulenc, Inc., 997 S.W.2d at 223; City of San Antonio,

47 S.W.3d at 561. We view the evidence 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.” Mann Frankfort

Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

                             ENFORCEABILITY OF THE AGREEMENT

       Pamela and Susan argue the trial court erred by granting Mollie’s summary judgment and

declaring the contract unenforceable as a matter of law. Mollie raised two traditional grounds for

summary judgment: lack of consideration and mutual mistake. The trial court’s order contained its

substantive ruling that the contract was unenforceable as a matter of law, and this is the question

we must decide on appeal. However, because the trial court did not specify the underlying basis

for its ruling, we must affirm if either ground supports the trial court’s ruling. See Merriman v.

XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013); see also TEX. R. APP. P. 47.1.

A. Lack of Consideration

       In support of her “lack of consideration” ground for summary judgment, Mollie argued

Pamela and Susan “gave up no right and suffered no detriment.” Consideration is necessary to

have a valid enforceable contract. Marx v. FDP, LP, 474 S.W.3d 368, 378 (Tex. App.—San

Antonio 2015, pet. denied.). “Consideration is a bargained-for exchange of promises or return

performance and consists of benefits and detriments to the contracting parties.” Id. “The surrender

of a legal right constitutes valid consideration to support a contract.” Id. “The compromise of
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doubtful and conflicting claims is good and sufficient consideration to uphold a settlement

agreement.” Garza v. Villarreal, 345 S.W.3d 473, 483 (Tex. App.—San Antonio 2011, pet.

denied). “To constitute valid consideration, forbearance to sue must be upon a right asserted in

good faith, and as to a contention which the party relying on the forbearance had reasonable

grounds for believing would be upheld.” S.A. Dome, L.L.C. v. Maloney Dev. P’ship, Ltd., No. 04-

04-00586-CV, 2005 WL 1398106, at *3 (Tex. App.—San Antonio June 15, 2005, no pet.) (mem.

op.). The party alleging lack of consideration has the burden to rebut the presumption that a written

contract is supported by consideration. Doncaster v. Hernaiz, 161 S.W.3d 594, 603 (Tex. App.—

San Antonio 2005, no pet.).

       Because the record establishes the agreement was in writing, Mollie had the burden to rebut

the presumption that the agreement is supported by consideration. See id. Mollie argues the only

possible consideration is the exchange of promises contained in the agreement, but Pamela and

Susan obtained a greater interest in the Federated Securities account without giving Mollie any

benefits under the agreement.

       However, the agreement does not state the writing is the entire agreement of the parties;

there were no other promises, agreements, or warranties; or all prior communications were

superseded unless expressly incorporated therein. Pamela and Susan argue other communications

between the parties show they would forbear their right to sue Mollie if Mollie signed the

agreement. In response to Mollie’s motion, Susan produced an affidavit swearing:

       Pam threatened to sue Mollie if she did not sign the . . . Agreement. Mollie
       responded, ‘Pam please don’t do this . . . I don’t want or need your money. I will
       not take your money . . . if you want me to sign something you draft reassuring you
       I don’t want and will not want the . . . life estate I will do so.’ Shortly after this and
       in response . . . Mollie edited, drafted, and signed the . . . Agreement.

In response to Mollie’s motion, Pamela also produced an affidavit to which she swore Mollie was

entrusted to set up the brokerage accounts and did so even though “[Marjorie] was consistently
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clear . . . that each of us would have an equal share of her assets.” Pamela also produced an email

exchange between her and Mollie, and in the emails Pamela explained Susan consulted with an

attorney about suing Mollie and stated she was “thinking about and also seeking advice on this.”

In response was Mollie’s email stated, “Pam please don’t do this,.. [sic] I don’t want or need your

money.”

       The evidence, viewed in a light most favorable to Pamela and Susan, raises a genuine issue

as to whether Mollie entered into the agreement to avoid a lawsuit over her establishing the

brokerage accounts. Reasonable inferences from the summary judgment evidence are that (1)

Marjorie intended her stock proceeds to be divided equally among her daughters; (2) Mollie acted

unlawfully, unfairly, or negligently in helping Marjorie establish the brokerage accounts; (3) if

Mollie was not negligent, Mollie’s intent was to obtain a larger share of Marjorie’s stock proceeds

at Pamela and Susan’s expense; and (4) the parties believed the agreement, which ensured all

parties would obtain equal shares of the stock proceeds upon their mother’s death, would prevent

litigation about Mollie’s acts in establishing Marjorie’s brokerage accounts. We must draw these

inferences. See Rhone-Poulenc, 997 S.W.2d at 223.

       Mollie argues the only possible consideration for the agreement was that Pamela and Susan

gave up their interest in the Raymond Jones account, in which they actually had no interest, and

thus she received no benefit from the agreement. Initially, Mollie’s affidavit testimony, “I received

no value or benefit from executing this Alleged Agreement,” is conclusory and not competent

summary judgment evidence. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984)

(recognizing testimony stating no more than a legal conclusion is conclusory and is insufficient

for summary judgment purposes). Moreover, Pamela and Susan stated in their depositions they

believed they gave up their interest in the Raymond James account, but they did not state this was

the only consideration for the contract. Pamela and Susan also did not admit their forbearance to
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sue Mollie for her role in establishing the brokerage accounts was not part of the consideration for

the agreement. See TEX. R. CIV. P. 166a(c).

       Mollie further argues Pamela and Susan did not assert their right to sue in good faith. Mollie

does not cite to any summary judgment evidence to support this argument. We conclude Mollie

did not meet her burden to conclusively establish the lack of consideration. See id.

B. Mutual Mistake

       In support of her “mutual mistake” ground in the trial court, Mollie argued the parties were

mutually mistaken that Bertha’s will gave Marjorie only a life estate in the stock. Pamela and

Susan argue there are fact issues as to whether Mollie was actually mistaken, whether the mistake

was mutual, and whether the mistake was material.

       “The elements of mutual mistake are . . . (1) a mistake of fact, (2) held mutually by the

parties, and (3) which materially affects the agreed-upon exchange.” City of The Colony v. N. Tex.

Mun. Water Dist., 272 S.W.3d 699, 735 (Tex. App.—Fort Worth 2008, pet. dism’d). Both parties

must have “the same misunderstanding of the same material fact.” Winegar v. Martin, 304 S.W.3d

661, 668 (Tex. App.—Fort Worth 2010, no pet.).

       Pamela and Susan produced some evidence showing their mistaken belief that Bertha’s

will created a life estate was either not mutual or not material. Mollie believed that because

Bertha’s will created a life estate, the transfer-on-death designations on the brokerage accounts

were not effective. Pamela and Susan’s evidence that they would pursue legal action against Mollie

for how she helped establish the brokerage accounts raised a fact issue that they believed the

transfer-on-death designations were effective despite the life estate. We therefore hold Mollie did

not meet her burden to conclusively establish a mutual mistake of a material fact. See id.; TEX. R.

APP. P. 166a(c).



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                                         CONCLUSION

       Mollie did not conclusively establish either the lack of consideration or a mutual mistake

of a material fact. We therefore hold the trial court erred by granting summary judgment that the

contract was enforceable and rescinded as a matter of law. We reverse the trial court’s order

granting summary judgment and remand for further proceedings.

                                                    Luz Elena D. Chapa, Justice




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