Royce Lourene Phillips v. Clarence Ervin Phillips, Jr.--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-96-269-CV

ROYCE LOURENE PHILLIPS,

Appellant

v.

CLARENCE ERVIN PHILLIPS, JR.,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 94-00-04032-CV

CONCURRING OPINION

Although I agree with the majority s conclusion, I differ in the analysis. I agree with the disposition of point one, disagree about point two, and believe point of error three should also be sustained.

Section 3.90 of the Texas Family Code governs the division of property which was not divided on divorce. I agree that the evidence shows genuine fact issues exist as to whether this case is barred by the two-year statute of limitations under Sec. 3.90. The controverting affidavits in the record with regard to the date on which Mr. Phillips unequivocally revoked Mrs. Phillips claim with reference to the crop insurance and disaster payments creates a fact issue, precluding summary judgment. I would sustain point one.

When an order granting a summary judgment does not specify the ground or grounds relied on, the summary judgment will be affirmed if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). The nonmoving party on appeal must negate any grounds on which the trial court could have granted the order. State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 381(Tex. 1993); Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). As such, it is necessary that Mrs. Phillips negate all possible grounds for summary judgment. In point three, she urges that if the trial court granted summary judgment on the basis that the assets were not in existence at the time of divorce, it was error. As the majority agrees, the evidence conclusively shows that both the wheat and grain-sorghum crops were in existence and were community assets that were not divided at the time of divorce. I would sustain point three.

After sustaining points one and three, we need not address point of error two. However, if I were to consider whether Mrs. Phillips could maintain her cause of action under the Property Code, I would reject the assertion. In holding that a suit for partition can be brought alternatively under either the Family Code or the Property Code, the majority relies on Carter v. Charles, 853 S.W.2d 667 (Tex. App Houston [14th Dist.] 1993, no writ). To the extent Carter approves of alternative actions under the Family Code and the Property Code, I disagree. The divorce decree in Carter awarded each party fractional interests in parcels of real property, creating a tenancy-in-common. Section 3.90 of the Family Code applies only to property that is not divided or awarded in a final decree of divorce, so it was clearly inapplicable. Although, as in Carter, section 23.001 of the Property Code is applicable to most tenancies-in-common, it does not apply in this case. I say this because I believe that the legislature intended that the Family Code provide the exclusive remedy in situations where community property was not divided on divorce. Section 23.001 should not be held to be an alternative method of bringing such a cause of action. Thus, I disagree with the disposition of point two.

I would reverse the judgment on points of error one and three and remand the cause for trial on the merits.