                              Fourth Court of Appeals
                                       San Antonio, Texas
                                MEMORANDUM OPINION

                                         No. 04-17-00163-CV

                                       Helen LEYENDECKER,
                                              Appellant

                                                 v.

                                           Romeo URIBE,
                                             Appellee

                     From the 57th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016CI04433
                           Honorable Antonia Arteaga, Judge Presiding

Opinion by:      Irene Rios, Justice

Sitting:         Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice
                 Irene Rios, Justice

Delivered and Filed: January 17, 2018

REVERSED AND REMANDED

           Helen Leyendecker filed for divorce from Romeo Uribe, alleging they had an informal

marriage. Romeo denied the existence of an informal marriage. In two issues, Helen appeals the

trial court’s order granting Romeo’s traditional motion for summary judgment. In her first issue,

Helen contends Romeo failed to establish a rebuttable presumption the parties never agreed to be

married, or, in the alternative, that she rebutted the presumption by presenting evidence that raises

a fact issue on whether she and Romeo agreed to be married. In her second issue, Helen contends

the doctrine of quasi-estoppel does not estop her from claiming an informal marriage to Romeo.
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We reverse the trial court’s judgment and remand the cause to the trial court for further

proceedings.

                                          BACKGROUND

       On March 14, 2016, Helen filed an original petition for divorce, alleging she had an

informal (common-law) marriage with Romeo. In her first amended petition, Helen alleged the

marriage commenced on January 1, 2000 and that the parties ceased living together on March 3,

2016. Romeo filed an original answer denying the existence of an informal marriage and asserting

the affirmative defense of quasi-estoppel.

       On September 28, 2016, Romeo filed no-evidence and traditional motions for summary

judgment. In the traditional motion for summary judgment, Romeo advanced two arguments. First,

Romeo argued that because the parties ceased living together more than two years prior to the

filing of the petition, there is a rebuttable presumption the parties never agreed to be married. See

TEX. FAM. CODE ANN. § 2.401(b) (West 2006). Second, Romeo argued the doctrine of quasi-

estoppel precludes Helen from claiming an informal marriage to Romeo because she filed federal

income tax returns and enrolled in the Teacher Retirement System of Texas as a single (i.e.,

unmarried) individual. As part of his summary judgment evidence, Romeo attached his sworn

affidavit, a transcript of his testimony given at a hearing on a motion to compel, Helen’s IRS

account transcript and 1040A forms for the years 2000-2003 and 2006-2015, and Helen’s Teacher

Retirement System enrollment forms from 2001 and 2013.

       The trial court signed an order granting only Romeo’s traditional motion for summary

judgment. Helen appeals.

                                      STANDARD OF REVIEW

       We review the trial court’s summary judgment de novo. Merriman v. XTO Energy, Inc.,

407 S.W.3d 244, 248 (Tex. 2013); Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). In a
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traditional motion for summary judgment, summary judgment is proper when there are no disputed

issues of material fact and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c). When reviewing a summary judgment, we take as true all evidence favorable to the

nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor. Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015).

       A movant who conclusively negates at least one of the essential elements of a cause of

action or conclusively establishes an affirmative defense is entitled to summary judgment. Frost

Nat. Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). Once the movant establishes its right

to summary judgment as a matter of law, the burden shifts to the nonmovant to present evidence

raising a fact issue to defeat the motion for summary judgment. Briggs v. Toyota Mfg. of Texas,

337 S.W.3d 275, 282 (Tex. App.—San Antonio 2010, no pet.). When a trial court’s order granting

summary judgment does not specify the grounds relied upon, the reviewing court must affirm the

summary judgment if any of the summary judgment grounds are meritorious. FM Properties

Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

                                   REBUTTABLE PRESUMPTION

       In her first issue, Helen contends Romeo failed to conclusively establish that she moved

out of their shared residence more than two years prior to the filing of the petition, and thus failed

to establish a rebuttable presumption the parties never agreed to be married. In the alternative,

Helen contends she presented sufficient evidence to rebut the presumption the parties never agreed

to be married.

       Section 2.401 of the Family Code provides that if a proceeding to establish the existence

of a common-law marriage “is not commenced before the second anniversary of the date on which

the parties separated and ceased living together, it is rebuttably presumed” there was no agreement

to be married. TEX. FAM. CODE ANN. § 2.401(b).
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          The parties do not dispute they cohabitated for a number of years. 1 However, the parties

do not agree on when Helen and Romeo ceased living together. In her first amended petition, Helen

alleged she ceased living with Romeo on March 3, 2016. Romeo attested in a sworn affidavit Helen

moved out of the house on November 20, 2011. Additionally, Romeo testified at a hearing on a

motion to compel that Helen moved out of the house in 2011. However, Romeo also testified he

found Helen’s 2013 federal income tax return in the house. Helen’s 2013 tax return denotes it was

prepared on March 27, 2014. Helen argues Romeo’s testimony that he found her 2013 tax return

in the house raises a fact issue about whether she moved out of the house in 2011 because it shows

she was still living in the house as of March 27, 2014, less than two years prior to the petition’s

filing.

          We conclude Romeo’s testimony that he found Helen’s 2013 tax return in the house raises

no more than a mere surmise or suspicion that Helen did not move out of the house in 2011. See

Foreman v. Whitty, 392 S.W.3d 265, 274 (Tex. App.—San Antonio 2012) (“Evidence that is mere

surmise or suspicion does not amount to more than a scintilla of evidence to raise a material issue

of fact.”). Other than pointing to Romeo’s testimony, Helen did not offer any controverting

evidence to support the allegation in her pleading that the parties ceased living together on March

3, 2016. On the other hand, Romeo attested in an affidavit and testified at a hearing that Helen

moved out of the house in 2011. Thus, Romeo provided sufficient evidence to establish the parties

ceased living together in 2011, more than two years prior to the petition’s filing. Because Helen

filed for divorce over two years after the parties ceased living together, there is a rebuttable

presumption the parties never agreed to be married. See TEX. FAM. CODE ANN. § 2.401(b); Joplin

v. Borusheski, 244 S.W.3d 607, 611 (Tex. App.—Dallas 2008, no pet.).


1
 Romeo attested in his affidavit that he and Helen lived together in his residence “on and off” from 2003 to 2011.
Helen attested in her affidavit that she and Romeo began living together on January 1, 2000.

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                               Helen Rebutted the Presumption

       Because the evidence gave rise to a rebuttable presumption that the parties never agreed to

be married, Helen bore the burden to “produce sufficient evidence of an agreement to be married

to rebut the statutory presumption.” Joplin, 244 S.W.3d at 611. To establish an agreement to be

married, the evidence must show “the parties intended to have a present, immediate, and permanent

marital relationship and that they did in fact agree to be husband and wife, as opposed to a

temporary cohabitation that may be ended by either party.” In Interest of J.J.F.R., No. 04-15-

00751-CV, 2016 WL 3944823, at *4 (Tex. App.—San Antonio July 20, 2016, no pet.) (mem. op.);

In Interest of C.M.V., 479 S.W.3d 352, 360 (Tex. App.—El Paso 2015, no pet.). A proponent may

prove an agreement to be married by direct or circumstantial evidence. Russell v. Russell, 865

S.W.2d 929, 933 (Tex. 1993). Proof of cohabitation and representations to others that the couple

are married may constitute circumstantial evidence of an agreement to be married. Id.; In Interest

of C.M.V., 479 S.W.3d at 360. However, the circumstances of each case must be determined based

upon its own facts. Russell, 865 S.W.2d at 933.

       Helen submitted the following summary judgment evidence:

   (1) Helen’s affidavit wherein she attested she and Romeo agreed to be married on January 1,
       2000, they lived together as husband and wife, and they represented to others they were
       married.

   (2) A Progress Note, dated November 1, 2000, as part of Helen’s medical records from
       University Health System hospital, stating, “Mr. Uribe (her husband) stated that he would
       be responsible for his wife … He wrote a note stating this, in the presence of Mr. Vela and
       the RN supervisor.” Following the Progress Note is a handwritten note signed by Romeo,
       stating “I Romeo A. Uribe, being of sound mind, assume full [and] complete responsibility
       for the actions of my wife (and health and well being) Helen A. Leyendecker Uribe …”

   (3) Several medical forms from Doctors Hospital of Laredo for “Helen A. Uribe” (including
       Condition of Admission and Authorization of Medical Treatment, Verification of Patient’s
       Rights, and Advanced Directive Acknowledgment) signed by Romeo A. Uribe as Helen’s
       spouse on May 24, 2009.



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   (4) Helen’s IRS account transcript from 2000 to 2015, showing Helen filed her 2004 and 2005
       federal income tax returns as “married filing separate” and provided her spouse’s Social
       Security number.

   (5) Proof of Dental Coverage from Dearborn National for “Helen Uribe,” showing Romeo
       Uribe, listed as Helen’s spouse, was covered on Helen’s family dental insurance plan from
       September 1, 2009 to August 31, 2011. The dental insurance records show benefits
       incurred and paid by Dearborn National to Romeo under the dental plan.

   (6) The affidavit of Dr. Gilbert Meadows, M.D., in which Dr. Meadows attested he was the
       orthopedic physician for both “Helen Leyendecker-Uribe” and Romeo Uribe, that he
       personally knew Helen and Romeo as husband and wife, that Romeo stated to him during
       his medical visits that Helen was his wife, and that he witnessed Helen and Romeo
       addressing each other as husband and wife and conducting themselves as such. Dr.
       Meadows attached a follow-up office visit note, dated April 23, 2003, for “Helen A. Uribe,”
       in which Dr. Meadows wrote that he discussed the risks and benefits of a surgical procedure
       with “Ms. Uribe” and her husband.

   (7) The affidavit of Rojelio Zuniga, in which Rojelio attested he was employed by Romeo for
       approximately seventeen years, that he personally witnessed Romeo introduce Helen as his
       wife on many occasions, that Romeo would often speak of Helen as his wife, and that
       Romeo once installed a decal that read “Helen Leyendecker-Uribe” on one of the offices
       in Romeo’s automotive shop in which Helen tutored school children.

   (8) The affidavits of Eveldina “Mina” Castillo and Russell Flores, in which each attested they
       heard Romeo refer to Helen as his wife.

  (9) The affidavit of Ricardo Gomez, Helen’s son, in which Ricardo attested that on or about
      January 1, 2000, Helen called to tell him she had just married Romeo, that in 2000 Helen
      and Romeo began living together, and that since January 2000 he has considered Romeo
      his step-father.

       In sum, Helen attested she and Romeo agreed to be married, lived together as husband and

wife, and represented to others they were married. Helen produced affidavits of four individuals

who attested they heard Romeo refer to Helen as his wife. Helen produced documentary evidence

spanning eleven years showing that Romeo held himself out as Helen’s husband; namely, by

making written representations to two hospitals and accepting benefits as Helen’s husband under

her dental plan. Romeo’s handwritten, signed letter to University Health System demonstrates

Romeo’s present intent to be married to Helen. The evidence also shows Helen adopted Romeo’s

last name and that Romeo referred to Helen as “Helen A. Leyendecker Uribe.”
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       We conclude Helen produced sufficient summary judgment evidence to raise a genuine

issue of material fact as to whether the parties agreed to be married. Helen presented evidence,

both direct and circumstantial, that Romeo “intended to have a present, immediate, and permanent

marital relationship” with Helen. In Interest of J.J.F.R., 2016 WL 3944823, at *4. See also In re

Marriage of Hallgarth, No. 07–01–0013–CV, 2001 WL 574833, at *2 (Tex. App.—Amarillo May

29, 2001, no pet.) (per curiam, not designated for publication) (holding that testimony by wife that

husband asked her to get married, together with “the evidence concerning their 15 year period of

cohabitation, their use of the same last name, their representations to third parties that they were

married, and the statement to hospital officials by [the husband] that [the wife] was his wife to

gain her admission into the hospital,” was more than a scintilla of evidence they had agreed to be

married).

       Parties alleging an informal marriage have successfully rebutted the statutory presumption

with less evidence than that produced by Helen in this case. See Matter of Marriage of Farjardo,

No. 14-15-00653-CV, 2016 WL 4206009, at *3 (Tex. App.—Houston [14th Dist.] Aug. 9, 2016,

no pet.) (mem. op.); In Interest of J.J.F.R., 2016 WL 3944823, at *5–*6. In Matter of Marriage of

Farjardo, the petitioner testified she believed respondent agreed to be married, that she lived with

him for twelve years, and that he introduced her as his wife on several occasions. Matter of

Marriage of Farjardo, 2016 WL 4206009, at *3. Petitioner also presented three years of tax returns

filed jointly by her and respondent as spouses. Id. at *1, *3. The court held this evidence presented

a question of fact on whether the parties agreed to be married, and thus held petitioner rebutted the

presumption under Texas Family Code Section 2.401(b). Id. at *3–*4. In In Interest of J.J.F.R.,

this court held petitioner’s testimony that she and respondent agreed to be married and began living

together as husband and wife when they were expecting their first child was sufficient evidence to



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rebut the statutory presumption the parties never agreed to be married. In Interest of J.J.F.R., 2016

WL 3944823, at *5–*6.

       Because Helen’s summary judgment evidence raised a genuine issue of material fact on

whether the parties agreed to be married, Helen rebutted the statutory presumption under Texas

Family Code Section 2.401(b). See Matter of Marriage of Farjardo, 2016 WL 4206009, at *4.

Accordingly, we sustain Helen’s first issue.

                                          QUASI-ESTOPPEL

       In her second issue, Helen contends the doctrine of quasi-estoppel applies only where a

contract is at issue, and because there is no contract at issue between Helen and Romeo, quasi-

estoppel is inapplicable to this case. In the alternative, Helen contends Romeo failed to prove he

is entitled to the defense as a matter of law.

       Romeo’s second argument in his traditional motion for summary judgment was that the

doctrine of quasi-estoppel precluded Helen from claiming an informal marriage to Romeo because

she filed federal tax returns and enrolled in the Teacher Retirement System of Texas as a single

(i.e., unmarried) individual. In support of this defense, Romeo presented Helen’s IRS account

transcript and 1040A forms for the years 2000-2003 and 2006-2015. The IRS documents show

that for tax years 2000 to 2003, Helen filed her federal tax returns as “head of household.” For tax

years 2006 to 2015, Helen filed as single. Romeo also presented Helen’s Teacher Retirement

System enrollment forms from 2001 and 2013 in which Helen is identified as single.

       Quasi-estoppel is an equitable doctrine that operates as an affirmative defense. Lopez v.

Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 863–64 (Tex. 2000); Hamilton v. Morris Res.,

Ltd., 225 S.W.3d 336, 346 (Tex. App.—San Antonio 2007, pet. denied). “Quasi-estoppel precludes

a party from asserting, to another’s disadvantage, a right inconsistent with a position previously

taken.” Lopez, 22 S.W.3d at 864. “The doctrine applies when it would be unconscionable to allow
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a person to maintain a position inconsistent with one to which he acquiesced, or from which he

accepted a benefit.” Id.; see also Schauer v. Von Schauer, 138 S.W. 145, 149–50 (Tex. Civ. App.—

Austin 1911, writ ref’d) (“Where a person has, with knowledge of the facts, acted or conducted

himself in a particular manner, or asserted a particular claim, title, or right, he cannot afterwards

assume a position inconsistent with such act, claim or conduct to the prejudice of another.”)

(internal quotations omitted). Unlike equitable estoppel, quasi-estoppel does not require a showing

of a false representation or detrimental reliance. Forney 921 Lot Dev. Partners I, L.P. v. Paul

Taylor Homes, Ltd., 349 S.W.3d 258, 268 (Tex. App.—Dallas 2011, pet. denied).

          The quasi-estoppel defense has been framed as relevant to suits involving contracts

between parties. See Forney, 349 S.W.3d at 268 (“Quasi-estoppel (estoppel by contract) is a term

applied to certain legal bars, such as ratification, election, acquiescence, or acceptance of

benefits.”). “[Q]uasi-estoppel forbids a party from accepting the benefits of a transaction and then

subsequently taking an inconsistent position to avoid corresponding obligations or effects.”

Lindley v. McKnight, 349 S.W.3d 113, 131 (Tex. App.—Fort Worth 2011, no pet.) (emphasis

added).

          Texas courts have recognized that “[q]uasi-estoppel requires mutuality of parties and may

not be asserted by or against a ‘stranger’ to the transaction that gave rise to the estoppel.” Parker

v. Glasgow, No. 02-15-00378-CV, 2017 WL 2686474, at *3 (Tex. App.—Fort Worth June 22,

2017, no pet.) (mem. op.). See also Thomas v. C & M Jones Invs., LP, No. 03–14–00374–CV,

2016 WL 3924429, at *4 n.14 (Tex. App.—Austin July 15, 2016, no pet.) (mem. op.); Deutsche

Bank Nat’l Trust Co. v. Stockdick Land Co., 367 S.W.3d 308, 315 n.13 (Tex. App.—Houston [14th

Dist.] 2012, pet. denied) (op. on reh’g).

          In this case, there is no mutuality of parties. Helen represented to the IRS that she was

single, not to Romeo. Romeo, as a stranger to the transaction between Helen and the IRS, cannot
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claim that Helen’s representations to the IRS precludes her from alleging in an unrelated lawsuit

that she and Romeo are informally married. See Parker, 2017 WL 2686474, at *3–*4. The same

is true regarding Helen’s representations to the Teacher Retirement System of Texas. Therefore,

we conclude the doctrine of quasi-estoppel does not preclude Helen from claiming an informal

marriage exists between her and Romeo.

       Although representations made to governmental entities regarding marital status do not

estop a party from later claiming in an unrelated suit the existence or non-existence of an informal

marriage, trial courts may properly consider such representations as evidence either supporting or

refuting a claim of informal marriage. See Small v. McMaster, 352 S.W.3d 280, 286 (Tex. App.—

Houston [14th Dist.] 2011, pet. denied) (evidence that alleged wife filed all her tax returns as

“single” during the time the parties were allegedly married weighed against finding of an informal

marriage); Quinn v. Milanizadeh, No. 01–07–00489–CV, 2008 WL 1828327, at * 5 (Tex. App.—

Houston [1st Dist.] Apr. 24, 2008, no pet.) (mem. op.) (concluding that keeping separate bank

accounts and filing tax returns as single persons did not negate existence of informal marriage but

went to the weight of the evidence). Even considering these representations, however, having

reviewed all of the summary judgment evidence, we still conclude Helen raised a genuine issue of

material fact on whether the parties agreed to be married.

       Accordingly, we sustain Helen’s second issue.

                                          CONCLUSION

       For the foregoing reasons, we conclude the trial court erred by granting Romeo’s traditional

motion for summary judgment. We reverse the trial court’s judgment and remand the cause to the

trial court for further proceedings.

                                                  Irene Rios, Justice



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