JoAnn Guevara, as Representative of the Estate of Jacob R. Guevara, Alma Guevara a/n/f of Brandy Guevara, a Minor and Brian Guevara v. Maria Alejandra Guevara--Appeal from Probate Court No 2 of Bexar County

99-00584 Guevara v Guevara.wpd No. 04-99-00584-CV

Jo Ann GUEVARA, as Representative of the Estate of Jacob R. Guevara, Alma Guevara, as Next Friend of Brandy Guevara, a Minor, and Brian Guevara

Appellants
v.
Maria Alejandra GUEVARA,
Appellee
From Probate Court No. 2, Bexar County, Texas
Trial Court No. 95-PC-2450A
Honorable Polly Jackson Spencer, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Paul W. Green, Justice

Delivered and Filed: March 22, 2000

REVERSED AND REMANDED

This is an appeal from a no-evidence summary judgment. For the reasons that follow, we reverse and remand.

Factual and Procedural Background

Jacob Guevara was murdered in 1995 in Laredo, Texas. Daniel Bautista was convicted of the murder, and Raul Cardenas Ochoa and Juan Morales, Jr., were convicted of tampering with evidence related to the murder. Jacob's life was insured under a serviceman's group life insurance policy. In the event of Jacob's death, the proceeds of the policy, $100,000, were to be paid to his wife, or if he was not married, to his children. Maria Alejandra Guevara was Jacob's wife at the time of his murder.

The representative of Jacob's estate and two of his children by a former marriage, Brandy and Brian Guevara, sued Maria, alleging that she had participated in a civil conspiracy with Bautista, Ochoa, and Morales to murder Jacob. In addition to seeking damages, the plaintiffs prayed that the proceeds from Jacob's life insurance policy be paid to Brandy and Brian. The insurer filed a petition in interpleader, deposited the policy proceeds into the registry of the court, and was discharged from any further liability.

The case was tried to a jury in probate court, and the jury rendered a verdict in favor of the plaintiffs. For reasons not apparent from the record, the trial judge set aside the jury's verdict and granted Maria's motion for a new trial. Thereafter, Maria filed a motion for a no-evidence partial summary judgment, seeking summary judgment on the plaintiffs' claim for the proceeds from the life insurance policy and severance of that claim from the remainder of the plaintiffs' claims. The plaintiffs filed a response to the motion for summary judgment and objected to the request for severance. The trial court granted the motion for summary judgment and the request for severance.

No-Evidence Summary Judgment Motions

After adequate time has been allowed for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim on which the nonmovant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). This rule "does not authorize conclusory motions or general no-evidence challenges to an opponent's case." See Tex. R. Civ. P. 166a Notes & Cmts. Instead, "[t]he motion must state the elements as to which there is no evidence." See Tex. R. Civ. P. 166a(i). This means the motion "must be specific in challenging the evidentiary support for an element of a claim." See Tex. R. Civ. P. 166a Notes & Cmts.

The court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. See Tex. R. Civ. P. 166a(i). To determine whether the nonmovant satisfied this burden, we apply the legal sufficiency standard used for reviewing a directed verdict. See Graves v. Komet, 982 S.W.2d 551, 553 (Tex. App.-San Antonio 1998, no pet.). In other words, the nonmovant must bring forth more than a scintilla of probative evidence. See id. We view the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. See id.

Discussion

The plaintiffs argue that Maria's no-evidence motion failed to state the elements as to which there is no evidence. Because the motion was inadequate on its face, the burden never shifted to them to raise a genuine issue of material fact. They also argue that even if Maria's motion was adequate to shift the burden to them, there is sufficient evidence in the record to defeat the motion. Finally, they argue the trial court erred in granting the severance.

As noted above, the plaintiffs alleged that Maria participated in a civil conspiracy to murder Jacob. A civil conspiracy has five elements: 1) two or more persons; 2) an object to be accomplished; 3) a meeting of minds on the object or course of action; 4) one or more unlawful, overt acts; and 5) damages as a proximate result. See Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). Maria's motion did not refer to any of these elements. The motion merely asserted that the plaintiffs have "no evidence to support their claim that [Maria] murdered or was otherwise culpably responsible for [Jacob's] death." This appears to be just the type of general no-evidence challenge precluded by Rule 166a(i). See Abraham v. Ryland Mortgage Co., 995 S.W.2d 890, 892 (Tex. App.-El Paso 1999, no pet.) ("there is absolutely no evidence to support Abraham's assertions that Ryland committed a wrongful foreclosure" was inadequate).

Maria relies on section 21.23 of the Texas Insurance Code. That statute provides, "The interest of a beneficiary in a life insurance policy ... shall be forfeited when the beneficiary is the principal or an accomplice in willfully bringing about the death of the insured." See Tex. Ins. Code Ann. art. 21.23 (Vernon Supp. 1999). Proof that Maria participated in the alleged civil conspiracy would satisfy this statute. See Greer v. Franklin Life Ins. Co., 148 Tex. 166, 172, 221 S.W.2d 857, 860 (1949) (holding that the statute applies when the beneficiary intentionally and illegally brings about the insured's death). Although Maria does not directly respond to the plaintiffs' argument that her motion failed to challenge any of the elements of civil conspiracy, she seems to suggest that regardless of how the plaintiffs framed their petition, she was only required to challenge their ability to recover under the statute. Maria cites no authority for this suggestion.

Assuming arguendo that Maria is correct in suggesting that her motion was adequate, we conclude that the plaintiffs presented sufficient evidence to raise a question of fact on the issue addressed in the motion, i.e., whether Maria was culpably responsible for Jacob's death. The plaintiffs attached evidence of the following to their summary judgment response: 1) Maria had threatened to kill Jacob and his mother because Jacob wanted to divorce her; 2) the day before he was murdered, Jacob asked his brother to take him to a bank to withdraw money to hire an attorney in Laredo to divorce Maria because she was having an affair; 3) Jacob's brother saw him withdraw the money from the bank; 4) Maria admitted that she had an affair while she was married to Jacob and that Jacob was not the father of one of the children born during the marriage; and 4) Maria admitted that her neighbors murdered Jacob after she dropped Jacob off at their house. This is more than a scintilla of evidence that Maria is culpably responsible for Jacob's death. See Rumbaut v. Labagnara, 791 S.W.2d 195, 199-200 (Tex. App.-Houston [14th Dist.] 1990, no writ) (holding evidence was legally sufficient under the statute where wife was lost at sea during a sudden storm, husband and wife had virtually no sailing experience, but went sailing during hurricane season, husband had financial motivation to kill wife, and husband failed to make repairs to boat or familiarize himself with boat's equipment).(1)

We also conclude that the plaintiffs' claim for the proceeds of the insurance policy was not severable from the remainder of the plaintiffs' claims. The plaintiffs based their claim for the policy proceeds on exactly the same allegations as their claim for damages. The claims were interwoven and involved the same facts and issues. See Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). Accordingly, the trial court's order granting the partial summary judgment and severance is reversed, and the cause is remanded.

Tom Rickhoff, Justice

DO NOT PUBLISH

1. The assertions that Maria admitted having the affair, having a child by another man, and dropping Jacob off at the murderous neighbors' house were contained in an affidavit by the plaintiffs' counsel, in which he recounted Maria's testimony at the earlier trial in this case. After the summary judgment hearing, Maria filed a post-submission brief attacking this affidavit and a motion for leave to file same. The brief was untimely. See Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993). There is nothing in the record to indicate that the trial court granted leave to file the brief; the order granting summary judgment recites that the trial court considered the plaintiffs' response and "the evidence." See Neimes v. Ta., 985 S.W.2d 132, 138-40 (Tex. App.-San Antonio 1998, pet. dism'd by agr.). The brief asserts that the affidavit violates the "lawyer as witness rule." This argument relates to whether counsel should be disqualified, not to the admissibility of the affidavit. See, e.g., In re Acevedo, 956 S.W.2d 770, 773-75 (Tex. App.-San Antonio 1997, orig. proceeding). The brief also asserts that evidence from the prior trial was required to be presented "in the form of excerpts." The authorities cited for this assertion do not support the assertion. See Tex. R. Civ. P. 166a(c); McConathy v. McConathy, 869 S.W.2d 341, 341 (Tex. 1994).