Charleen Washington, as Administratix of the Estate of Clarence Womack, Deceased v. Lackland Federal Credit Union aka Air Force Federal Credit Union--Appeal from Probate Court No 2 of Bexar County

MEMORANDUM OPINION
No. 04-04-00416-CV
Charleen WASHINGTON, as Administratrix of the Estate of Clarence Womack, Deceased,
Appellant
v.
LACKLAND FEDERAL CREDIT UNION a/k/a Air Force Federal Credit Union,
Appellee
From the Probate Court Number 2, Bexar County, Texas
Trial Court No. 98-PC-1114
Honorable Tom Rickoff, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 8, 2004

AFFIRMED

Appellant, Charlene Washington, appeals from a summary judgment granted in favor of appellee Lackland Federal Credit Union. Washington, in her capacity as administratrix of the estate of Clarence Womack, filed suit against Lackland to recover funds paid out of a joint account to the decedent's mother, Amelia Womack, who was listed by decedent on the back of the signature card as joint owner of the account. Washington filed suit six years after Clarence Womack's death, payment of the account funds to Amelia Womack, and Washington's appointment as administratrix. On appeal, Washington contends the trial court erred in granting the summary judgment, raising two issues: 1) whether there existed a genuine issue of material fact as to whether a valid survivorship agreement was created; and 2) whether the statute of limitations is tolled where the decedent is survived by a minor child who is not a named party to the suit. Because the summary judgment evidence establishes as a matter of law that Washington's claim is barred by limitations, we affirm.

Standard of review

The standard review of a summary judgment is whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). When reviewing a summary judgment, we take as true all evidence favorable to the non-movant. Science Spectrum, Inc., v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). We indulge every reasonable inference and resolve any doubts in the non-movant's favor. Id. When the court does not specify the grounds upon which it granted summary judgment, summary judgment will be affirmed if any of the theories advanced are meritorious. Insurance Co. of N. Am. v. Security Ins. Co., 790 S.W.2d 407, 410 (Tex. App.-Houston [1st Dist.] 1990, no writ).

A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all of the elements of that affirmative defense. Cadle Co. v. Henderson, 982 S.W.2d 543, 545 (Tex. App.-San Antonio 1998, no pet.). When that defense is the statute of limitations, the defendant must conclusively establish that the action has accrued and is barred. Id.

Statute of Limitations

Section 16.003(a) of the Civil Practices and Remedies Code provides that suit for injuries caused to the estate or property of another must be brought within two years after the day the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. 16.003(a) (Vernon 2002). Washington does not dispute that she filed suit more than two years after the applicable limitations began. She contends, however, that her suit should not be time barred because the statute of limitations was tolled by the fact that decedent's sole heir, Ashley Womack, is a minor until her eighteenth birthday on June 25, 2005. See Tex. Civ. Prac. & Rem. Code Ann. 16.001 (Vernon 2002) (persons under the age of 18 are under a legal disability); Weiner v. Wasson, 900 S.W.2d 316, 321 (Tex. 1995) (a minor plaintiff's disability tolls the statute of limitations until the minor's eighteenth birthday). Washington concedes Ashley Womack is not a named party to the suit, but argues the tolling provision applicable to Ashley Womack nevertheless applies to the suit she filed. Washington contends that because she pled facts in her original petition that indicate Ashley Womack will benefit from the suit, Ashley Womack should be regarded as the true plaintiff, and the statute of limitations is therefore tolled. We find no merit in this argument. The law regarding the statute of limitations is clear, and we find the trial court did not abuse its discretion in granting summary judgment when suit was filed by Washington solely in her capacity as administratrix more than two years after the cause of action accrued. (1) Tex. Civ. Prac. & Rem. Code Ann. 16.003(a). Washington's second issue is overruled. Because we find Lackland's statute of limitations defense to be meritorious, we need not address her first issue. See Insurance Co. of N. Am., 790 S.W.2d at 410. We affirm the trial court's judgment.

Catherine Stone, Justice

1. Whether Ashley Womack may pursue suit in her own name at this juncture is not an issue before the court at this time.