Dione Childress v. Alex S. Tradd II, as Independent of the Estate of Robert Carson Caldwell

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00319-CV

Dione Childress, Appellant

v.

Alex S. Tradd II, as Independent Executor of the Estate of Robert Carson Caldwell,
Appellee

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
NO. C-1-PB-21-000349, THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING

MEMORANDUM OPINION

Alex S. Tradd II, in his capacity as the independent executor of the Estate of Robert

Carson Caldwell, sued Dione Childress for conversion of estate property and damages to the estate.

Childress filed a counterclaim for back pay for her service as Caldwell’s caretaker. The probate

court granted Tradd’s motion for summary judgment and dismissed the counterclaim. Childress,

proceeding pro se, raises many issues on appeal but only two are cognizable: whether the probate

court erred by granting summary judgment in Tradd’s favor and by denying her the opportunity to

present evidence to contest the summary judgment. We will affirm.

BACKGROUND

Childress lived with Caldwell in a house Caldwell owned. She at various times

referred to herself as his roommate, family caregiver, domestic companion, dependent, best friend
and “like a daughter.” In April 2020, Tradd, an attorney who had known Caldwell for forty years,

drafted his will. In it, Caldwell appointed Tradd as independent executor of his estate;

acknowledged he had never been married or had children; and left his entire estate, in equal shares,

to three charities. Both Childress and Tradd’s wife were attesting witnesses to the will. On

October 14, 2020, Caldwell died.

Tradd filed an application to probate the will. Childress contested the will,

maintaining that it had been forced upon Caldwell. Childress asserted that she, as Caldwell’s

common–law wife, was entitled to his property, which he had passed to her by oral gift, and she,

as his caregiver, was entitled to back pay.

After Tradd learned that Childress removed some of Caldwell’s property, he

demanded its return. In November 2020, Tradd obtained a temporary injunction from the probate

court enjoining Childress from expending Caldwell’s funds, disposing, removing, or hiding his

personal property, entering his real property, or operating his vehicles. Nevertheless, Childress

continued to reside in the house, forcing Tradd to pursue two eviction proceedings.

Tradd filed the conversion suit underlying this appeal in February 2021. In this

suit, Tradd alleged damages (loss of assets and attorney’s fees) incurred by the estate to be at least

$83,594.05. The damages included Childress’s removal of Caldwell’s funds from his bank

accounts and assets such as vehicles; legal fees from the estate’s two eviction proceedings; legal

fees for the conversion suit; and lost opportunity for rent. Tradd also sought an affirmative

injunction that Childress account for and return to the estate all of Caldwell’s assets in her

possession or control.

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While Tradd’s conversion suit was pending, the probate court granted a motion for

summary judgment in the probate proceeding that Childress take nothing on her will contest and

back pay claim against the estate.

In the conversion suit, Childress failed to respond to discovery requests or show up

for her scheduled deposition. Tradd filed a traditional motion for summary judgment on the

conversion claim and moved to dismiss Childress’s counterclaim based on res judicata as a result

of the summary judgment in the probate proceeding. On March 21, 2024, the summary–judgment

motion was set for a hearing on April 12, 2024. On March 26, 2024, Childress filed a motion for

continuance, saying she, as a pro se litigant, needed more time to prepare for the hearing,

referencing emails between Caldwell and Tradd leading up to the will creation—emails she argued

would create a genuine issue of material fact. On April 8, 2024, less than seven days before the

scheduled hearing, Childress filed a written response. She had not sought leave of court to file the

late response. In it, she repeated the assertions from the will contest that the will was invalid and

Caldwell had told her that he was leaving everything to her. She referred to supporting evidence

but did not attach the evidence to her motion. She filed amended responses on April 8 and

April 11, also without seeking leave of court. 1

Tradd objected to Childress’s responses as untimely under Rule 166a(c) and moved

to strike them. He also objected that the following alleged statements by Caldwell do not meet the

standard for opposing affidavits set forth in Rule 166a(f):

• “I was told by [Caldwell] himself on August 16, 2020 that this will be my home forever
unless I want to move out one day and then it would be for his charity to house homeless
veterans along with his other properties”;

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These amended responses are not in the clerk’s record.
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• “[Caldwell] had made an offer to Childress when they first met. They made an agreement
that for her assistance with daily housekeeping, running errands, cooking, making sure all
bills were paid, banking, maintenance and renovations, that he would pay for her oral
surgery and hernia operation”;

• “On August 16, 2020 [Caldwell] told [Childress] she could live in their house as long as
she wants to. It is her forever home. He also told her that his rental properties would be her
forever income and to promise to help veterans that were homeless”; and

• “Childress continued to occupy Decedent’s property because [Caldwell] told her she never
had to leave, that it is her home as long as she wants”

Tradd argued the statement of facts was presented in bad faith and for purposes of delay, given the

court’s June 2023 order disposing of the will contest, and that the statements purported to

contradict facts deemed admitted by Childress’s failure to respond to Tradd’s requests for

admissions. See Tex. R. Civ. P. 166a(c), (f), 198.3. Tradd, in his reply to the responses, argued

that the conversion claim was conclusively established by the deemed admissions and that the

damages and attorney’s fees were established by properly sworn affidavits.

At the summary–judgment hearing, the probate court denied the motion for

continuance; sustained Tradd’s objections to Childress’s summary–judgment responses and struck

them from the record; granted Tradd’s motion for summary judgment; issued an order for actual

damages and reasonable attorney’s fees; and dismissed Childress’s counterclaim with prejudice.

The probate court did not address the request for injunctive relief. Childress appealed the

interlocutory order granting summary judgment.

In June 2024, the case proceeded to a bench trial on the request for injunctive relief

in the conversion suit and on August 2, 2024, the trial judge signed the Final Judgment confirming

the relief granted in the interlocutory summary judgment and granting additional injunctive relief.

If, as here, an order on interlocutory appeal merges into a final judgment, the court of appeals must

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treat the initial appeal as if it were an appeal from a final judgment. Chen v. Razberi Techs., Inc.,

645 S.W.3d 773, 782 (Tex. 2022) (citing Tex. R. App. P. 27.3).

ANALYSIS

Cognizability of Issues

Pro se litigants are afforded liberal construction of their pleadings, but this leniency

does not exempt them from complying with procedural and evidentiary rules applicable in

summary–judgment practice and appeals. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex.

2005); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978). Two rules govern

here. First, Rule 166a of the Texas Rules of Civil Procedure provides, “A motion for summary

judgment must be in writing, and “[i]ssues not expressly presented to the trial court by written

motion, answer or other response shall not be considered on appeal as grounds for reversal.” Tex.

R. Civ. P. 166a(c). Second, Rule 38.1 of the Texas Rules of Appellate Procedure requires an

appellant’s brief to “contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i). In this case,

Childress sets out eight issues. 2

Most of these issues are inadequately briefed. As Tradd notes, Childress provided

no citations to the record, no citation or inadequate citation to authority, and/or no argument for

any of these issues. One case she relied on does not exist; a statute is cited in an entirely wrong

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Childress complains about (1) the probate court’s acceptance of Tradd’s “false documents and
fraudulent statements”; (2) the probate court’s “[d]enial of the opportunity to present crucial evidence”;
(3) Tradd’s “exploit[ation] of procedural complexities and legal technicalities”; (4) the probate court’s bias
and prejudice in favor of Tradd because of her “pro se” status; (5) the probate court’s reliance on “her lack
of knowledge and resources rather than the merits of the case” and its refusal to allow her to introduce her
evidence; (6) the probate court’s finding of no genuine issues of material fact even though she has “credible,
tangible evidence that will contribute to the outcome of the case”; (7) the probate court’s decision to award
damages in contradiction of Caldwell’s final wishes; and (8) Tradd’s “false statements on affidavits.”

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context. The statement of facts is an abstract recitation of various laws. The argument section

relists issues with no law. Nevertheless, construing the pleadings liberally, we find two issues

cognizable here.

First, we understand her to complain that the probate court erred by determining

that Tradd was entitled to judgment as a matter of law because, in her view, there were genuine

issues of material fact precluding summary judgment in Tradd’s favor. Second, we understand

Childress to complain that the probate court erred by denying her motion for continuance without

considering evidence she could obtain that was sufficient to support the request.

All other issues, besides being inadequately briefed, we find unpreserved. They

were not made known to the trial court by way of “a timely request, objection, or motion.” Seim

v. Allstate Tex. Lloyds, 551 S.W.3d 161, 164 (Tex. 2018); McConnell v. Southside Indep. Sch.

Dist., 858 S.W.2d 337, 343 (Tex. 1993); Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 166a(c).

Traditional Summary Judgment

Applicable Law and Standard of Review

We review a trial court’s ruling on a motion for summary judgment de novo.

Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When reviewing a summary

judgment, we view the evidence in the light most favorable to the nonmovant, crediting evidence

favorable to that party if a reasonable factfinder could, and disregarding contrary evidence unless

a reasonable factfinder could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289 S.W.3d 844, 848 (Tex. 2009). The appellate court will not consider evidence that favors the

movant’s position unless it is uncontroverted. Great Am. Rsrv. Ins. Co. v. San Antonio Plumbing

Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).

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To prevail on a traditional summary-judgment motion, the movant must show that

no genuine issue of material fact exists and that the trial court should grant judgment as a matter

of law. Tex. R. Civ. P. 166a(a), (c); Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 216

(Tex. 2003). The trial court may not grant a summary judgment by default for lack of an answer

or response to the motion by the nonmovant when the movant’s summary–judgment proof is

legally insufficient. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

The movant still must establish his entitlement to a summary judgment on the issues expressly

presented to the trial court by conclusively proving all essential elements of his cause of action or

defense as a matter of law. Id. Summary judgment must issue where discovery responses,

supporting affidavits, pleadings, or other authenticated documents on file at the time of the hearing

show that “there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law.” Tex. R. Civ. P. 166a(c).

Application

To establish a claim for conversion of personal property, a plaintiff must prove that:

(1) the plaintiff owned or had legal possession of the property or was entitled to possession; (2) the

defendant unlawfully and without authorization assumed and exercised dominion and control over

the property to the exclusion of, or inconsistent with, the plaintiff’s rights as an owner; (3) the

plaintiff demanded return of the property; and (4) the defendant refused to return the property.

Smith v. Maximum Racing, Inc., 136 S.W.3d 337, 341 (Tex. App.—Austin 2004, no pet.). A

plaintiff must prove damages before recovery is allowed for conversion. United Mobile Networks,

L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997).

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Tradd owned or had legal possession of the property or was entitled to possession.

Tradd presented adequate, competent summary–judgment evidence that Caldwell’s

will named him the independent executor of Caldwell’s estate, he was “currently serving” in that

role, and he had obtained an order granting summary judgment in the will contest which confirmed

that role. As the executor of Caldwell’s estate, Tradd had “the right to possession of the estate as

the estate existed at the death of the testator or intestate” and the duty to “recover possession of

the estate and hold the estate in trust to be disposed of in accordance with the law.” Tex. Est. Code

§ 101.003.

Childress unlawfully and without authorization assumed and exercised dominion and control over
the property to the exclusion of, or inconsistent with, Tradd’s rights as an owner.

Tradd presented adequate, competent summary–judgment evidence that following

Caldwell’s death, Childress continued to live in Caldwell’s house with access to his personal

property and bank accounts; Tradd informed Childress she was not to remove or dispose of

Caldwell’s property; Childress was later enjoined by the probate court from removing or disposing

of Caldwell’s property and from entering Caldwell’s real property; Childress nevertheless took

funds from Caldwell’s accounts, and took property belonging to the estate of Caldwell from

Caldwell’s house; and Childress also had to be evicted twice and forcibly removed from

Caldwell’s real property. Childress’s deemed admissions include that she “took funds from the

accounts of Robert Caldwell after he died for her own use”; “disposed of Robert Caldwell’s red

Ford pickup truck”; had “taken property belonging to the estate of Robert Caldwell”; “did not

deposit rent checks or cash received from the tenants at 1304 Lipan Trail, Austin, Texas into a

Robert Caldwell bank account”; and “used all or part of the rental income from 1304 Lipan Trail

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for her own personal use.” Tradd also produced evidence that the tenants paid $2,000 per month

in rent to live at the Lipan Trail house.

Tradd demanded return of the property.

Tradd presented adequate, competent summary–judgment evidence that the day

after Caldwell died, he informed Childress that she was not to remove or dispose of his

property; Tradd demanded the return of Caldwell’s property in a letter delivered to Childress on

October 21, 2020; and Tradd obtained a temporary injunction in the probate proceedings requiring

Childress to “immediately account for and turn over to court-appointed Temporary Administrator

all assets in [her] possession or control that belonged to [Caldwell].”

Childress refused to return the property.

Tradd presented adequate, competent summary–judgment evidence that Childress

has not returned Caldwell’s personal property (including cash, a boat and trailer, three gold coins,

a shop trailer, and the titles to two vehicles) and Childress had to be evicted twice and forcibly

removed from Caldwell’s real property.

The estate suffered damages.

Tradd produced an accounting of the value of damages supported by his affidavit,

including the aforementioned missing cash, boat and trailer, gold coins, shop trailer, and two

vehicles, along with bank records, his attorney’s affidavit, and Childress’s tenant’s indigency

statement reflecting rent paid.

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Tradd established his conversion claim.

Tradd presented undisputed summary–judgment evidence conclusively

establishing each element of his conversion claim; thus, the burden shifted to Childress to raise an

issue of material fact. Childress failed to dispute the evidence supporting Tradd’s motion that

established each element of conversion or to raise an issue of material fact as to any

conversion element. Tradd was therefore entitled to summary judgment as a matter of law. Tex.

R. Civ. P. 166a(c). We overrule Childress’s complaint that the trial court erred by granting

summary judgment.

Denial of the “the opportunity to present crucial evidence”

Applicable Law and Standard of Review

“The trial court may order a continuance of a summary judgment hearing if it

appears ‘from the affidavits of a party opposing the motion that he cannot for reasons stated present

by affidavit facts essential to justify his opposition.’” Joe v. Two Thirty Nine Joint Venture,

145 S.W.3d 150, 161 (Tex. 2004) (quoting Tex. R. Civ. P. 166a(g)). We review a trial court’s

ruling on a motion for continuance for an abuse of discretion; a trial court abuses its discretion

when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or

principles. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). In this

context, we consider a variety of factors, including “the length of time the case has been on file,

the materiality and purpose of the discovery sought, and whether the party seeking the continuance

has exercised due diligence to obtain the discovery sought.” Two Thirty Nine, 145 S.W.3d at 161.

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Application

The length of time the case had been on file. On February 21, 2021, Tradd filed the

conversion suit. On February 20, 2024, Tradd filed the summary–judgment motion. Thus, the

case had been on file for three years by the time the summary–judgment motion was filed, and

Childress had received the 21-day notice of the hearing required by Rule 166a(c) before filing her

motion for continuance on March 26, 2024, in advance of the April 12 hearing. Stierwalt v. FFE

Transp. Servs., Inc., 499 S.W.3d 181, 190 (Tex. App.—El Paso 2016, no pet.) (trial court does not

abuse discretion by refusing to grant continuance of summary–judgment hearing when case had

been on file for over year before summary–judgment motion filed); Cypress Creek EMS

v. Dolcefino, 548 S.W.3d 673, 687 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (trial court

does not abuse discretion by refusing to grant continuance of summary–judgment hearing when

party has received 21 days’ notice required by Rule 166a(c)).

The materiality and purpose of the discovery sought. It is hard to discern, from

either the motion for continuance or the argument at the summary–judgment hearing, the

materiality and purpose of the discovery Childress sought. In her motion, Childress mentioned the

emails that she alleged would prove the invalidity of the will. At the summary–judgment hearing,

Childress argued that she needed time to collect evidence to raise fact issues on the elements of

Tradd’s conversion claim. But absent specifics, the probate court may have reasonably determined

that the discovery sought would not be material. See Guzman v. City of Bellville, 640 S.W.3d 352,

358 (Tex. App.—Houston [14th Dist.] 2022, no pet.); Life Forms, Inc. v. Woodlands Operating

Co., L.P., 304 S.W.3d 591, 601 (Tex. App.—Beaumont 2010, pet. denied). This is especially true

because on June 7, 2023, in the probate proceedings, the court had entered a summary–judgment

order that Childress take nothing on her will contest and claims against the estate. Childress did

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not appeal the order granting summary judgment, and it thus became final on July 7, 2023, some

eight months before the scheduled summary–judgment hearing in this case.

Whether the party seeking the continuance has exercised due diligence to obtain

the discovery sought. At the summary judgment–hearing, counsel for Tradd argued that the time

for discovery had long since passed, and “when the executor attempted to do discovery by sending

interrogatories, requests for production, request for admissions, and a deposition to which

Ms. Childress was noticed and also subpoenaed, she has a hundred percent failed to respond to

any of that discovery.” The probate court orally denied the motion for continuance. The probate

court then heard argument on Tradd’s objections to Childress’s summary–judgment responses,

which elucidates the probate court’s implicit finding of Childress’s lack of due diligence.

Childress argued that she had good cause for her late responses: she was pro se, she misunderstood

Rule 166a(c), and she did not understand that she had to file her response not later than seven days

prior to the day of hearing. Childress stated she was pressed for time because she “was in the

middle of being evicted.” The probate court noted she had no right to be in the house in the first

place because the will did not leave it to her.

Given the extensive history of this litigation, the probate court’s experience with

the will contest, the unclear materiality of the information Childress sought or what Childress

expected to prove with the information, we cannot conclude on this record that the probate court

abused its discretion by denying the motion for continuance. The decision not to allow Childress

more time for discovery was within the probate court’s discretion. See Tenneco Inc. v. Enterprise

Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). We overrule Childress’s complaint about the denial

of “the opportunity to present crucial evidence.”

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CONCLUSION

Having overruled the issues that we find cognizable, we affirm the probate

court’s judgment.

__________________________________________
Chari L. Kelly, Justice

Before Chief Justice Byrne, Justices Triana and Kelly

Affirmed

Filed: March 19, 2026

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