                                      NO. 07-03-0059-CV

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL A

                                          MAY 9, 2005

                             ______________________________


                                 JERRY ATKINS, APPELLANT

                                                V.

                       MARTHA WIDEMAN, DAVID GLEN WIDEMAN,

                   AND LINDA DENISE WIDEMAN LOVING, APPELLEES


                           _________________________________

               FROM THE 159TH DISTRICT COURT OF ANGELINA COUNTY;

                 NO. 34,947-02-01; HONORABLE PAUL E. WHITE, JUDGE

                            _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                  MEMORANDUM OPINION


       Presenting four points of error, Jerry Atkins challenges a summary judgment declaring

that he has no interest in or claim to certain real property devised to Martha Wideman, David

Glen Wideman, and Linda Denise Wideman Loving and awarding the Widemans’ attorney’s

fees in the amount of $6,354.39. By his points, Atkins contends the trial court erred (1) the trial

court erred in granting summary judgment because issues of fact were presented, (2) the trial

court abused its discretion in granting a permanent injunction, (3) the trial court erred in
awarding attorney’s fees, and (4) the trial court did not have subject matter jurisdiction. We

reverse and remand.


       Following the death of Nell Wideman Cain on October 6, 1999, Jean Graham was

appointed Independent Executrix of her estate on November 9, 1999. During the administration

of the estate, Graham engaged Atkins who rendered a variety of legal services.               After

recovering a judgment signed July 13, 2001, against the Estate of Nell Wideman Cain and Jean

Graham in her capacity as Independent Executrix, in the sum of $18,230.87, plus interest and

attorney’s fees, Atkins caused an abstract of judgment to be filed of record in Angelina County.

Alleging their title to the real estate vested upon the death of Nell Wideman Cain, subject to the

payment of her debts, the Widemans brought an action against Atkins seeking, among other

things, a declaratory judgment removing the judgment obtained and filed by Atkins as a cloud

upon their title to the subject real estate.


       By their traditional motion for summary judgment, the Widemans contended that because

their title vested at the time of the death of Nell Wideman Cain and the real estate was a specific

devise, that the real estate was not subject to the debts of the Cain Estate and Atkins’s

judgment. In response, Atkins asserted that the Widemans’ action should be brought against

the Independent Executrix of the Estate and that fact questions were presented as to whether

the residuary estate had sufficient funds to satisfy the judgment. Before we commence our

review, we first set out the appropriate standard of review.


                            Standard of Review–Summary Judgment


       In reviewing summary judgment, this Court must apply the standards established in

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985):

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       1. The movant for summary judgment has the burden of showing that there is
       no genuine issue of material fact and that it is entitled to judgment as a matter of
       law.


       2. In deciding whether there is a disputed material fact issue precluding
       summary judgment, evidence favorable to the non-movant will be taken as true.


       3. Every reasonable inference must be indulged in favor of the non-movant and
       any doubts resolved in its favor.


For a party to prevail on a motion for summary judgment, he must conclusively establish the

absence of any genuine question of material fact and that he is entitled to judgment as a matter

of law. Tex. R. Civ. P. 166a(c). A movant must either prove all essential elements of his claim,

MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986), or negate at least one essential element

of the non-movant's cause of action. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640,

644 (Tex. 1995). Once the movant has established a right to summary judgment, the non-

movant has the burden to respond to the motion for summary judgment and present to the trial

court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671, 678-79 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64

(Tex.App.–Houston [1st Dist.] 1996, writ denied). Issues which the non-movant contends

preclude the granting of a summary judgment must be expressly presented to the trial court by

written answer or other written response to the motion and not by mere reference to summary

judgment evidence. McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 341 (Tex.

1993). Issues not expressly presented to the trial court in writing shall not be considered on

appeal as grounds for reversal. Tex. R. Civ. P. 166a(c).




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       By his first point of error, Atkins contends the trial court erred in granting summary

judgment because issues of fact were shown. We agree.


       As material here, section 37 of the Texas Probate Code provides “[w]hen a person dies,

leaving a lawful will, all of his estate devised or bequeathed by such will . . . shall vest

immediately in the devisees or legatees of such estate . . . subject, however, to the payment of

the debts of the testator . . . .” Tex. Prob. Code. Ann. § 37 (Vernon 2003). See Woodward v.

Jaster, 933 S.W.2d 777, 781 (Tex.App.–Austin 1996, no writ). However, for purposes of the

payment of debts and taxes, the heirs are not considered the owners of the estate property

while under administration. Bailey v. Cherokee County Appraisal Dist., 862 S.W.2d 581, 584

(Tex. 1993).


       Because the Widemans’ interest in the specifically described real estate was subject to

the payment of all of the debts of the estate, they had the burden to produce summary judgment

evidence to demonstrate that sufficient residuary funds or assets were available to pay the

Atkins judgment. Indeed, the summary judgment evidence presented by Atkins suggested that

residuary assets had been substantially exhausted. Accordingly, the Widemans did not

conclusively establish the absence of the fact question regarding the sufficiency of funds or

assets otherwise available to satisfy the Atkins judgment.      Atkins’s first point of error is

sustained.


       We have not overlooked a document entitled Release of Judgment Lien signed by Atkins

after summary judgment was rendered and Atkins’s motion for new trial was overruled, which

was submitted as an appendix to the Widemans’ brief. However, that document is not part of

the record and cannot be considered on appeal. See Crossley v. Staley, 988 S.W.2d 791, 794


                                               4
(Tex.App.–Amarillo 1999, no pet.). While the document may demonstrate a breakdown in

communications between the Independent Executrix and the Widemans, their suggestion that

the appeal is moot except for the award of attorney’s fees is not controlling for purposes of our

decision.


       Our disposition of Atkins’s first point of error pretermits our consideration of his remaining

points. Accordingly, the judgment of the trial court is reversed and remanded for further

proceedings.


                                                     Per Curiam


Johnson, C.J., not participating.




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