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Mowbray v. Avery

The trial court did not err in granting summary judgment as to appellant's claim for a constructive trust based on unjust enrichment on the grounds of limitations.

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On appeal from the 197th District Court of Cameron County, Texas.

OPINION

Appellant Fredda Sue Mowbray appeals the judgment of the trial court, dismissing her petition for the imposition of a constructive trust and for a bill of review of a summary judgment in a prior suit entered over six years earlier. In the prior proceeding, the trial court had granted a summary judgment finding, after her criminal conviction for killing her husband, William ABill@ Mowbray, that appellant was not entitled to the proceeds insuring Bill Mowbray=s life. Appellant filed a petition for a bill of review of that decision after she was acquitted in a subsequent criminal trial after a writ of habeas corpus was granted that reversed her original conviction and ordered a new trial. Appellant asks us to review whether the trial court erred in: (1) sustaining special exceptions to her second amended petition for bill of review; (2) considering appellees= late supplement to the motion for summary judgment; (3) considering appellee=s motion for summary judgment which was not supported by conclusive competent summary judgment evidence; (4) granting summary judgment on the ground of limitations; (5) granting summary judgment on the ground that there was no extrinsic fraud that prevented her from presenting a defense; and (6) granting summary judgment on the ground that she failed to exercise due diligence in filing a petition for bill of review. We affirm the judgment of the trial court.

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