
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):
	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).
	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 
(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.
  





