Ackers v. Comerica Bank & Tr., 21-0233

CourtSupreme Court of Texas
Writing for the CourtJ. BRETT BUSBY JUSTICE
PartiesLarry Ackers, Petitioner, v. Comerica Bank &Trust, N.A., Trustee of the Larry Ackers Generation Skipping Trust, Respondent
Docket Number21-0233
Decision Date28 October 2022


Larry Ackers, Petitioner,

Comerica Bank &Trust, N.A., Trustee of the Larry Ackers Generation Skipping Trust, Respondent

No. 21-0233

Supreme Court of Texas

October 28, 2022

On Petition for Review from the Court of Appeals for the Eleventh District of Texas

JUSTICE BUSBY, joined by Justice Young, concurring in the denial of the petition for review.


This case involves a dispute over whether certain individuals are contingent remainder beneficiaries of a trust, and the issue presented is whether the dispute is ripe for judicial resolution. The plaintiff was the life beneficiary of the trust, and the court of appeals affirmed the dismissal of his suit as unripe. The life beneficiary then filed a petition for review, but he died after we received merits briefing, and the trust will now be wound up. Under these circumstances, I agree with the


Court's decision to deny review. This disposition does not prevent anyone claiming a remainder interest in the trust from seeking a judicial declaration regarding who should receive a distribution.

Nor should our denial of review be interpreted as agreement with the court of appeals' ripeness analysis. That court reasoned the suit was not ripe because the putative remainder beneficiaries might die before the trust terminated and thus might never receive a future distribution. But the dispute also included whether the putative beneficiaries had present rights to receive information about the trust prior to its termination. That aspect of the dispute, which the court of appeals overlooked, rendered this suit ripe when filed.

Petitioner Larry Ackers was the life beneficiary of a testamentary trust that would terminate upon his death, with any remaining trust assets being distributed to his "then-living descendants." Larry had three biological children: Kimberly, Melissa, and Pepper. He relinquished his parental rights to Kimberly and Melissa, each of whom was later adopted by a new father. Kimberly passed away in 2013, but Melissa and Pepper-along with Kimberly's children, Brittany and James-are still alive. Sometime before Kimberly's passing, the then-trustee notified Kimberly and Melissa that they were Larry's descendants.

In 2015, respondent Comerica Bank &Trust, N.A. was appointed successor trustee. Comerica began sending account statements to Melissa, Brittany, and James (collectively, the Heirs). Larry then informed Comerica that the Heirs might not be his "descendants" due to his relinquishment of parental rights. Comerica notified the Heirs that


it was "suspending its practice of providing account statements" to them while it investigated whether they were remainder beneficiaries.

Because Larry relinquished his parental rights to Kimberly and Melissa, he argued that only Pepper was his "descendant"; the Heirs were not his "descendants" and could not receive account information or a distribution after his death. Larry filed suit under the Texas Trust Code and the Uniform Declaratory Judgments Act, asking the court to construe the trust instrument and determine this question arising in the administration of the trust. See TEX. PROP. CODE § 115.001(a)(1), (7);[1]TEX. CIV. PRAC. &REM. CODE §§ 37.004(a), 37.005(1). Larry alleged that when Comerica's predecessor trustee notified the Heirs of its determination that they were beneficiaries, it created an "irreconcilable conflict of interest between the descendants of the living and non-living adopted child contingent beneficiaries" that required judicial intervention.

Comerica moved for summary judgment, arguing that Larry's suit was not ripe because the class of "then-living descendants" could not be ascertained until Larry's death. In response, Larry pointed out that Comerica had already chosen to include the Heirs in the class of "descendants" by sending them account statements. Without providing its reasoning, the trial court granted summary judgment in Comerica's favor. The court of appeals affirmed, 630 S.W.3d 292, 293 (Tex. App.- Eastland 2020), and Larry petitioned this Court for review.


Before any court can determine whether the Heirs are Larry's descendants, this controversy must be ripe. See Patterson v. Planned Parenthood of Hous. &Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). Ripeness "is a threshold issue that implicates subject matter jurisdiction, and like standing, [it] emphasizes the need for a concrete injury for a justiciable claim to be presented." Id. (citation omitted). Specifically, "[a]t the time a lawsuit is filed, ripeness asks whether the facts have developed sufficiently so that an injury has occurred or is likely to occur, rather than being contingent or remote." Id.[2]

According to the court of appeals, Larry's suit was not ripe. The court reasoned that because the class gift to Larry's "descendants" was contingent on Larry's death, the Heirs' interests were "not ripe for determination because they are based upon an event that '[has] not yet come to pass.'" 630 S.W.3d at 295-96 (alteration in original) (quoting Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 683 (Tex. 2020)).

This conclusion is incorrect because it focuses solely on the Heirs' contingent future interest in a remainder distribution of the "corpus of the trust" upon Larry's death, id. at 295, while ignoring their present rights as putative contingent remainder...

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