Clifford Kenneth Phillips v. Barbara Jean Copeland

Opinion issued May 9, 2013.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-12-00492-CV

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CLIFFORD KENNETH PHILLIPS, Appellant

V.

BARBARA JEAN COPELAND, Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Case No. 61765I

MEMORANDUM OPINION

Clifford Kenneth Phillips appeals from the trial court’s summary judgment

in favor of Barbara Jean Copeland, who is Phillips’s sister. Phillips sued Copeland

under the Texas Theft Liability Act, alleging that Copeland unlawfully

appropriated his property, a mobile home and the personal property contained

therein. Phillips contended below that he originally owned the mobile home, but

that, before he was incarcerated, he transferred ownership of the mobile home and

its contents to his parents with the expectation that they would bequeath it to him

in their wills. When Phillips discovered that Copeland, on behalf of their mother

and under a power of attorney, had transferred the title to the mobile home to R &

C Rental Partnership, LLC, Phillips sued Copeland. In two points of error, Phillips

argues that the trial court erroneously granted summary judgment in Copeland’s

favor. We affirm.

Background

In December 1990, Phillips bought a used Fleetwood Mobile Home from

Continental Mobile Homes. Phillips admits that although he originally owned the

mobile home, he transferred ownership of the mobile home to his parents before he

was incarcerated. However, Phillips contends that his parents agreed to leave him

the mobile home upon their deaths. In September 2008, while Phillips was still

incarcerated, the mobile home was damaged in Hurricane Ike. Phillips’s parents

received $4,473.31 from the insurance company for the damage to the mobile

home.

In October 2008, Phillips’s mother executed a durable power of attorney

appointing her husband as attorney-in-fact and Copeland as successor attorney-in-

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fact. Phillips’s father passed away in February 2009, and his Last Will and

Testament, dated November 19, 2008, was admitted to probate in Union County,

Iowa. Under the terms of the will, Phillips’s mother received all of Phillips’s

father’s real and personal property. The will did not mention the mobile home and

did not purport to leave the mobile home to Phillips.

In June 2009, Copeland, pursuant to her authority as attorney-in-fact for

their mother under the power of attorney, conveyed the mobile home to R & C

Rental Partnership, LLC. After learning of this conveyance, Phillips sued

Copeland under the Texas Theft Liability Act, Chapter 134 of the Texas Civil

Practice and Remedies Code, alleging that she had unlawfully appropriated

property, consisting of the mobile home and the personal property contained

therein, belonging to Phillips.

Phillips moved for summary judgment on the grounds that he had proven

that he owned the mobile home and its contents and that Copeland had unlawfully

appropriated them from Phillips without his consent or permission. Therefore,

Phillips alleged, no genuine issue of material fact remained and he was entitled to

summary judgment as a matter of law. Copeland responded that Phillips failed to

conclusively establish ownership in the mobile home and its contents, and,

therefore, summary judgment in his favor was not appropriate. The trial court

agreed with Copeland and denied Phillips’s motion on February 21, 2012.

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Copeland also moved for a no-evidence and traditional summary judgment.

She argued that there was no evidence of three essential elements of Phillips’s theft

claim: (1) that she unlawfully appropriated, secured, or stole property (2) with the

intent to deprive Phillips, the alleged owner, of that property, and (3) that the

property allegedly stolen had any value. She also argued that her proof (1)

conclusively negated Phillips’s claim that he had a possessory right to the allegedly

stolen property, and (2) conclusively proved that she had a right to sell the property

under a valid power of attorney. In response to Copeland’s motion, Phillips argued

that he had established his ownership interest in the property and that the power of

attorney executed by his mother was invalid. Phillips also argued that it was never

the intent of his parents to sell or dispose of the mobile home; rather, his parents

intended him to get the property back on their deaths. The trial court granted

Copeland’s motion for summary judgment. Phillips appealed.

Discussion

A. Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). When a party has filed both a traditional and a

proper no-evidence summary judgment motion, we first review the trial court’s

summary judgment under the no-evidence standard of Texas Rule of Civil

Procedure 166a(i). Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 375

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(Tex. App.—Houston [1st Dist.] 2012, pet. denied) (citing Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)).

To prevail on a no-evidence motion for summary judgment, the movant

must establish that there is no evidence to support an essential element of the

nonmovant’s claim on which the nonmovant would have the burden of proof at

trial. TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the

nonmovant to present evidence raising a genuine issue of material fact as to each

of the elements specified in the motion. Essex Crane, 371 S.W.3d at 375; Hahn,

321 S.W.3d at 325. “The trial court must grant the motion unless the nonmovant

produces more than a scintilla of evidence raising a genuine issue of material fact

on the challenged elements.” Essex Crane, 371 S.W.3d at 375 (quoting Flameout

Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.

App.—Houston [1st Dist.] 1999, no pet.)). We review the evidence presented by

the motion and response 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. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).

The party moving for traditional summary judgment bears the burden of

showing that no genuine issue of material fact exists and that it is entitled to

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judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein &

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

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

is entitled to summary judgment. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494,

508 (Tex. 2010).

B. Applicable Law

Under the Texas Theft Liability Act, a person who commits theft—which

includes the unlawful appropriation of property under section 31.03 of the Penal

Code—is liable for the damages resulting from the theft. TEX. CIV. PRAC. & REM.

CODE ANN. §§ 134.002, 134.003 (West 2011). A theft occurs when (1) property is

(2) unlawfully appropriated (3) by someone (4) with intent to deprive the owner of

that property. TEX. PENAL CODE ANN. § 31.03 (West Supp. 2012); Anderson v.

State, 322 S.W.3d 401, 407 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

C. Analysis

In order to defeat Copeland’s no-evidence motion on Phillips’s Texas Theft

Liability Act claim, Phillips was required to establish that he was the owner of the

property allegedly unlawfully appropriated. See TEX. PENAL CODE ANN.

§ 31.03(a) (“A person commits an offense if he unlawfully appropriates property

with intent to deprive the owner of property.”); see also TEX. CIV. PRAC. & REM.

CODE ANN. § 134.005 (West 2011) (providing for recovery of damages for victim

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of theft). Phillips failed to adduce evidence sufficient to raise a fact issue on this

element. 1

In his response to Copeland’s motion for summary judgment, Phillips points

to four pieces of evidence that he contends raise a fact issue as to his ownership

interest: (1) his father’s will; (2) two typed and unsigned “codicils” to his father’s

will, which Phillips claims established his possessory interest in the mobile home

and its contents; (3) Phillips’s previously-filed unsworn declaration explaining that

the ownership of the mobile home would revert back to him upon the death of his

parents; and (4) a 2007 letter written by his parents to the Texas Board of Parsons

and Parole. We address each of these in turn.

First, Phillips’s reliance on his father’s will, dated November 19, 2008, does

not create a fact question as to ownership because the will does not mention the

mobile home, or its contents, and it does not purport to bequeath the mobile home,

or its contents, to Phillips. In fact, Phillips’s father’s will specifically states that he

bequeaths all of his property, whether real, personal, or mixed, to his wife,

Jeannette Phillips. No property is specifically bequeathed to Phillips; any bequest

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We note that in his response to Copeland’s motion and in his appellate brief,

Phillips admitted that he transferred ownership of the mobile home to his parents,

but he states that the ownership was to revert back to Phillips upon the death of his

parents. Considering his arguments on appeal in light of this admission, we

construe Phillips’s arguments relating to his ownership interest in this property as

twofold: (1) he had an ownership interest in the property based on an expectation

of inheritance; and (2) he actually inherited this property, under the terms of his

father’s will and codicils, following his father’s death.

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to Phillips is contingent upon Phillips’s mother predeceasing Phillip’s father.

Therefore, even if we take as true Phillip’s assertion that he transferred ownership

of the mobile home to his father with the understanding that he was to receive the

property after his father’s death, Phillips is not entitled to the mobile home under

the provisions of his father’s will as all of Phillips’s father’s property went to

Phillips’s mother.

Second, Phillips points this court to two “codicils” to his father’s will in

support of his assertion that he raised a fact issue regarding his ownership interest

in the mobile home and personal property. The first purported codicil is an

unsigned typed document setting forth several “special requests” related to Phillips

in the event he should still be incarcerated following the death of his parents. The

document directed that Phillips was to be buried next to his parents on his death;

noted from where his remains were to be retrieved; requested that a stone be placed

on his grave; and directed that Phillips is to receive $200 per month from his

inheritance while he is in prison. The second purported codicil is also an unsigned

typed document and identifies the location of certain property, including Phillips’s

father’s coin and stamp collections, magazines, tools, toys, and furniture. This

document states that this property should be held for Phillips and that nothing

should be disposed of without his consent. Finally, the document notes the

location of the mobile home and the amount and due date of the monthly rent.

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Neither of the purported “codicils” is signed by Phillips’s father, dated, or

attested to by witnesses. Furthermore, although one of the “codicils” indicates that

it was “Rcvd 6-18-05,” this is three years before the date of Phillips’s father’s will.

A codicil is a testamentary writing that is supplementary to an earlier testamentary

writing and must be executed with the formalities required in the making of a will.

Matter of Estate of Jansa, 670 S.W.2d 767, 767–68 (Tex. App.—Amarillo 1984,

no writ). The probate code requires that “[e]very last will and testament . . . shall

be in writing and signed by the testator in person . . . and shall, if not wholly in the

handwriting of the testator, be attested by two or more credible witnesses.” TEX.

PROB. CODE ANN. § 59(a) (West 2012). Because these “codicils” were not

executed with the formalities required of a will, they are not valid codicils.

Third, Phillips presented evidence of his previously-filed unsworn

declaration, in which he explained he and his parents agreed that the mobile home

was to revert back to Phillips upon the death of his parents. To the extent Phillips

is arguing that he had a property right in the mobile home and its contents due to

the fact that he expected to inherit this property upon his father’s (or mother’s)

death, this does not create a fact issue as to ownership because the possibility of

inheritance does not create a present interest or right of title in property. Davis v.

Davis, 734 S.W.2d 707, 709 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d

n.r.e.); see also Davis v. First Nat’l Bank of Waco, 161 S.W.2d 467, 472 (Tex.

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1942) (“An expectant heir has no present interest or right in property that he may

subsequently inherit and consequently he cannot maintain a suit for the

enforcement or adjudication of a right in the property.”).

Fourth, Phillips presented a letter written by his parents to the Texas Board

of Pardons and Parole, which Phillips contends demonstrates his parents never

intended to sell or dispose of the mobile home. The letter states that Phillips has

two addresses: one in Iowa and one in Texas. His parents go on to state that they

hope Phillips “will be allowed to Parole in Iowa where we, his family, have resided

for the past sixty-one years.” The fact that his parents stated that Philips had the

option to live at a Texas address—presumably the place where the mobile home

was kept—does not raise a fact issue as to Phillips’s ownership interest in the

mobile home or its contents.

Finally, we note that Phillips relies on several additional pieces of evidence

that he did not submit with his response to Copeland’s motion for summary

judgment. Specifically, he points this court to the following documents: (1) a list

of specific bequests to Phillips prepared by Phillips’s father; (2) a July 12, 2008

letter from Phillips’s father explaining the provision of his will establishing a trust

for Phillips in the event Phillips is still incarcerated upon the death of Phillips’s

parents; (3) a November 17, 2008 letter from Phillips’s father stating that his will

leaves the house in Iowa to Copeland “to make up for the more than $100,000

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we’ve given [Phillips];” and (4) a December 30, 2008 letter from Phillips’s father

stating that Phillips will receive his certificates and that all jewelry will be divided

equally. Phillips submitted all of these documents to the trial court on May 31,

2011, six months before he filed his response to Copeland’s motion for summary

judgment, in support of his document entitled “Advisory to the Court.”

Even if we were to consider this evidence to be proper summary judgment

evidence, we conclude that these documents do not raise a fact issue as to

Phillips’s ownership interest. First, the list of specific bequests, which is signed by

Phillips’s father, does not mention the mobile home or its contents. Moreover, it

provides for the specific bequest of certain property to Phillips only “[i]n the event

my wife, Jeannette Marion Phillips, predeceases me.” Here, Phillips’s father

predeceased Phillips’s mother. As for the three letters, none reference the mobile

home or its contents; they merely describe the provisions and bequests in Phillips’s

father’s will.

Having reviewed all of the summary-judgment evidence before the trial

court, we conclude that Phillips failed to present more than a scintilla of evidence

raising a genuine issue of material fact as to one of the essential elements of his

theft claim—his ownership interest in the mobile home and its contents.

Therefore, we hold that the trial court properly granted Copeland’s no-evidence

motion for summary judgment. See Essex Crane, 371 S.W.3d at 375.

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We overrule Phillips’s two points of error.

Conclusion

We affirm the judgment of the trial court.

Rebeca Huddle

Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

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