dissenting.
I respectfully dissent.
I disagree with the reasoning and conclusions reached by the majority. Without considering the question of the bill of review and the unassigned error pertaining to the applicability of the statute of limitations to the bill of review in this case, the disposition of this summary judgment turns on the adequacy of the summary judgment proof.
Before considering the nonmovant’s response and supporting evidence, this Court must first determine if the movant established his right to summary judgment.
A summary judgment for the defendant, which disposes of the entire case, is proper only if, as a matter of law, the plaintiff could not succeed upon any of the theories pled. Lumpkin v. H & C Communications, Inc., 755 S.W.2d 538, 539 (Tex.App.—Houston [1st Dist.] 1988, writ denied).
I would hold that the movant failed to establish his right to a summary judgment because a fact issue remains concerning whether there are certain lump sum amounts accumulated during the marriage that were not disposed of in the divorce decree.
Where the divorce decree fails to provide for division of community property, the husband and wife become tenants in common or joint owners thereof. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970). In such case, the law does not vest title in the spouses before a partition; instead, the spouses own an undivided interest in the property. Ex parte Williams, 160 Tex. 314, 316, 330 S.W.2d 605, 606 (Tex.1960). Limitations will not begin to run against a co-tenant until another co-tenant repudiates the first co-tenant’s interest in the property. Mooney v. Glasspool, 602 S.W.2d 364, 366 (Tex.Civ.App.—Beaumont 1980, writ ref. n.r.e.); Tex.Fam.Code Ann. § 3.90(a), (b), (c).
The movant's summary judgment evidence consists of an agreement incident to divorce, a copy of the decree of divorce that incorporates the agreement by reference to movant’s affidavit in support of his motion for summary judgment, and nonmovant’s petition for modification, partition, and bill of review.
The nonmovant asserted in her petition for partition the following:
4. As part of his federal retirement benefits from the Johnson Space Center, Petitioner has reason to believe that Robert A. Law very recently received or will receive the lump sum of approximately $28,000.00 and perhaps additional monies or benefits.
6. Petitioner was unaware of the sum or potential sums.
(Emphasis added.)
Her supplemental petition for partition contained the following paragraph:
15. The phrase additional monies or benefits used in paragraph et seq of the June 29 pleading is intended to include monthly retirement and other benefits (at this time the amount and the nature of which is unknown to Petitioner), as well as the lump sum, of approximately $28,000, the exact amount of which is also unknown to Petitioner at this time.
(Emphasis added.)
A liberal interpretation of the nonmov-ant’s pleadings would indicate that the non-*155movant believes movant received a lump sum of money in an approximate amount of $28,000, which she believes to be a part of his retirement, as well as “additional monies;” she was unaware of this sum, or “potential sums; she believes that the sum, or potential sums, were accumulated during the marriage and are community property of which she is entitled to at least 50%. Troutman v. Traeco Bldg. Sys. Inc., 724 S.W.2d 385, 385 (Tex.1987); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985).
The settlement agreement, incorporated by reference in the decree of divorce, has attached a “Schedule 1 Property to Wife,” and a “Schedule 2, Property to Husband”; each schedule lists specific property to each of the spouses but does not list any lump sum amounts. Also, the schedules contain the following general provision:
7. Any and all sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any profit sharing plan, retirement plan, pension plan, or like benefit program existing by reason of Wife’s (Husband’s) past, present, or future employment.
The applicable portion of movant’s affidavit in support of his motion for summary judgment asserts:
My former wife, ELEANOR JANICE LAW, and I were divorced in the 257th District Court of Harris County, Texas, on June 14, 1982. At that time, we entered into an Agreement Incident to Divorce, which made a complete and final disposition of our community property. The agreement, among other things, disposed of the employee and retirement benefits of both parties and all real property owned by the community, including the residence located at 5518 Whispering Creek, Houston, Texas 77017.
At the time of our divorce, ELEANOR JANICE LAW, was an attorney. Nothing was concealed from her by me in arriving at that agreement. She has now filed various actions in the 257th District Court, attempting to reopen the divorce and redistribute the community property which was divided by the divorce of 1982.
The property settlement agreement contains a general paragraph as to retirement benefits but does not specifically identify any lump sum as part of the retirement benefits, nor does the agreement make disposition of any other type of “lump sum ” of money.
Movant does not state in his affidavit that the lump sum in question, or other lump sums, were disposed of in the division of property on divorce by reason of the sums being a part of the retirement benefits generally referenced in the schedules, or by reason of the lump sums being specifically disposed of in the agreement. He merely calls attention to this general provision pertaining to retirement. He did not deny the receipt of additional lump sums of money from other sources; he does not assert that the lump sums did not exist during the marriage, or that if they did exist, they were not community property.
I would find that a fact issue exists concerning the lump sums nonmovant asserts may be retirement or other additional monies that were accumulated during the marriage and not divided on divorce.
I would reverse the summary judgment granted by the trial court.