Adera K. Kidwell v. John D. Moody, Jr., et al., Co-Executors in the Estate of John Drummond Moody, Deceased--Appeal from County Court at Law No 2 of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-97-290-CV

ADERA K. KIDWELL,

Appellant

v.

JOHN D. MOODY, JR., ET AL.,

CO-EXECUTORS IN THE ESTATE OF

JOHN DRUMMOND MOODY, DECEASED,

Appellees

From the County Court at Law No. 2

Brazos County, Texas

Trial Court # 6450

O P I N I O N

This appeal is from a summary judgment granted the Defendant. Adera Kidwell, an adoptee, filed an Application to Set Aside the Order Probating the Will of John Drummond Moody, her biological father. She brought this suit against John D. Moody, Jr., Jennifer Alice Moody, and Melissa Moody Treadwell seeking to inherit from her biological father. She alleged fraud, negligence, gross negligence and breach of fiduciary duty.

Kidwell s sole point of error asserts the trial court erred in granting the motion for summary judgment because:

(1) the discovery rule keeps her claim from being barred by statute of limitations, arguing specifically that the Texas Supreme Court s opinion in Little v. Smith, 943 S.W.2d 414 (Tex. 1997), is not controlling of this case;

(2) the statutory restrictions regarding the identity of biological parents in adoption proceedings are not constitutional because they violate Open Courts provision; and

(3) Sections 162.006, 162.007, 162.018, and 162.022 of the Texas Family Code violate the Equal Protection Clause.

FACTUAL BACKGROUND

Adera Kidwell was born in 1954. She was placed through private adoption with Mr. and Mrs. Kidwell. Adera was not told by the Kidwells that she was adopted. At age 13 she overheard her aunt refer to her as the Kidwell s adopted daughter. Her adoption was not discussed, and she did not know who her birth parents were or in what part of the state she was born. Beginning in 1993, Adera began to search for her biological parents. In May, 1994, she petitioned the Tarrant County Court to release her adoption records, but the court refused.

In August 1994, Adera paid a private service to find her birth parents names and located her birth mother, Margaret Ann Weatherford. On March 24, 1995, she met with Weatherford and learned her birth father was John Drummond Moody and that Weatherford and Moody had made repeated attempts to locate her. Adera next contacted Moody s sister who confirmed that Moody had a child out of wedlock but warned Adera against contacting any other family members. Adera then attempted to contact John D. Moody, Jr. who was handling the estate of John Drummond Moody. When Moody, Jr. did not respond to her correspondence, she filed an Application to Set Aside the Order Probating the Will. This application was filed thirteen years after the estate was closed. The application alleged fraud, negligence, gross negligence, and breach of fiduciary duty. //

ANALYSIS

A defendant moving for summary judgment has the burden of showing as a matter of law that no material fact issue exists on the plaintiff s cause of action. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Summary judgment for the defendant may be based on conclusive proof of an affirmative defense. Johnson Co. Sheriff s Posse v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996).

Statute of Limitations

Little v. Smith, 943 S.W.2d 414 (Tex. 1997), is controlling of this case. In Little, an adoptee sued asserting a right to inherit from her biological grandmother and seeking damages or equitable relief for wrongful exclusion from her grandmother s estate. The trial court granted the defendant s motion summary judgment on limitations. The Court in Little held:

(1) the discovery rule is unavailable to extend the statute of limitations in suits asserting a right of inheritance by an adoptee;

(2) an adoptee cannot rely on the discovery rule to defeat a statute of limitations defense to claims against an estate, because application of the rule to these claims contradicts legislative policies calling for confidentiality of adoption records and finality of estate matters; and

(3) an adoptee can not rely on the discovery rule to defeat a statute of limitations defense for claims against an executor or other heirs for breach of fiduciary duty, gross negligence, constructive fraud, and conspiracy, even assuming an act or omission amounting to fraud, breach of fiduciary duty, and gross negligence, given that persons may lawfully choose to conceal identities of birth parents and given the need for finality of estate matters. Little, at 417-422.

Kidwell attempts to distinguish her situation from the one in Little. Smith, the adoptee in Little, was told she was adopted, where she was born, and the name of the adoption agency. She obtained a court order to open her adoption records. Smith s biological mother did not attempt to contact her, and Smith s adoptive mother knew the biological parents but kept that knowledge a secret. These distinctions make no difference under the reasoning of Little, and Kidwell s claims are barred by limitations.

Open Courts

In Reed v. Campbell, 476 U.S. 852, 106 S. Ct. 2234, 90 L. Ed. 858 (1986), an appeal of a Texas case, the U.S. Supreme Court recognized that statutes of limitations may cut off the right of an illegitimate child to inherit. The Court held that a state s interest in the orderly disposition of estates justifies the enforcement of generally applicable limitations on the time and manner in which claims may be asserted and that the interest in finality of probate matters provides additional justification for barring the belated assertion of claims, even though they may be meritorious. Campbell, 476 U.S. 855. In Little, the Texas Supreme Court reviewed some of the same Family Code provisions that Kidwell challenges. The Court acknowledged arguments that adoptees should have the right to inherit unless the adoption decree specifies otherwise and recognized that adoptees who exercise the utmost diligence may be unable to locate their biological parents. Little, 942 S.W.2d 422. Nevertheless, the Court held these considerations do not outweigh the need for finality in settling estates, the confidentiality of biological parent s identities, and the general considerations that support the imposition of statutes of limitation. Id. The statutes in question do not violate the Open Courts provision of the Texas Constitution.

Equal Protection

In Lalli v. Lalli, 439 U.S. 259, 99 S. Ct. 518, 526 (1978), the U.S. Supreme Court addressed the application of a New York statute part of which controlled the inheritance rights of illegitimate children, and held a state has a substantial interest in providing for the just and orderly disposition of estates. The Lalli Court stated the inquiry under the Equal Protection Clause does not focus on the abstract fairness of a state law, but on whether the statute s relation to the state interest it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment. That court held that restrictions imposed on illegitimate children s inheritance rights were substantially related to the state interests the statute was promoting. Lalli, 99 S. Ct. at 527-528. In Little, the Texas Supreme Court examined the inheritance rights of adoptees and held the need for finality of probate proceedings and the confidentiality in the adoption process are paramount. Little, 943 S.W.2d at 417. The statutes before this court have a substantial relationship with the interest of the State of Texas in finality of probate proceedings and confidentiality in the adoption process and do not violate the Equal Protection Clauses of the United States Constitution or the Texas Constitution.

The trial court did not err in granting the Motion for Summary Judgment. The judgment of the trial court is affirmed.

ROBERT M. CAMPBELL

Justice (Sitting by Assignment)

Before Chief Justice Davis,

Justice Vance and

Justice Campbell (Sitting by Assignment)

Affirmed

Opinion delivered and filed January 13, 1999

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