Fclt Loans, L.P. v. Estate of Bracher

• Decision Date: 17 October 2002
• Docket Number: No. 14-00-00577-CV.,14-00-00577-CV.
• Citation: 93 S.W.3d 469
• Parties: FCLT LOANS, L.P., Successor in Interest to First City Bank — Inwood Forest, N.A., Appellant, v. The ESTATE OF Louise P. BRACHER; Antoinette Bracher Lawrence, Individually and as Co-Executrix of the Estate of Louise Bracher; Barbara K. Olson, Individually and as Co-Executrix of the Estate of Louise Bracher; James V. Bracher, Individually and as Co-Trustee of the David A. Bracher Family Trust; Victoria Bracher Noyes, Individually and as Co-Trustee of the David A. Bracher Family Trust; and David A. Bracher, Appellees.
• Court: Texas Court of Appeals

93 S.W.3d 469

FCLT LOANS, L.P., Successor in Interest to First City Bank — Inwood Forest, N.A., Appellant, v. The ESTATE OF Louise P. BRACHER; Antoinette Bracher Lawrence, Individually and as Co-Executrix of the Estate of Louise Bracher; Barbara K. Olson, Individually and as Co-Executrix of the Estate of Louise Bracher; James V. Bracher, Individually and as Co-Trustee of the David A. Bracher Family Trust; Victoria Bracher Noyes, Individually and as Co-Trustee of the David A. Bracher Family Trust; and David A. Bracher, Appellees.

No. 14-00-00577-CV.

Court of Appeals of Texas, Houston (14th Dist.).

October 17, 2002.

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Mynde S. Eisen, Houston, for appellants.

Cathleen C. Herasimchuk, Marcus E. Faubion, Rusty Hardin, Houston, for appellees.

Rusty Hardin, for Barbara Olson.

Panel consists of Justices EDELMAN and FROST and Senior Chief Justice MURPHY.^*

OPINION ON MOTION FOR REHEARING

PAUL C. MURPHY, Senior Chief Justice (Assigned).

Appellant's motion for rehearing is overruled; the opinion issued in this case on February 28, 2002, is withdrawn, and the following opinion is issued in its place.

This appeal comes before us on competing motions for summary judgment in a suit brought by appellant, FCLT Loans, L.P., to recover a debt allegedly owed to FCLT by Louise Bracher's estate. The trial court granted appellees' motions, denied FCLT's motion, and entered judgment that FCLT take nothing. We reverse the judgment in part and affirm in part, and we remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND

In 1980, Victor Bracher executed a note with First City Bank — Inwood Forest, N.A., secured by a Deed of Trust covering eight tracts of land in Harris County. Two years later, Victor and his wife, Louise, established three trusts, each named for one of the couple's three children: the Antoinette Bracher Lawrence Trust, the Barbara K. Bracher Trust, and the David A. Bracher Family Trust. These trusts were each initially funded with several properties, although none of the properties used to secure Victor's 1980 note were included. Each trust named Victor and Louise as both grantors and trustees, and each permitted them to direct the distribution of the income and principal of the trust. Each trust also contained a "spendthrift" clause, providing that before actual receipt by a beneficiary of any income or property from the trust, the property could not be attached by any of the beneficiary's creditors.

Victor died in 1987, and Louise Bracher was appointed independent executor of his estate. In 1988, Louise signed a Modification, Renewal and Extension of Real Estate Note and Liens and Deed of Trust ("Renewal Note") with First City, in the amount of $388,822.37. Louise signed the note both individually and in her capacity as independent executor of Victor's estate. By its terms, the Renewal Note came due on February 18, 1991.

After a series of mergers and name changes, First City was placed into receivership. The Renewal Note was eventually assigned to FCLT in 1995. In 1997, FCLT sent Louise a notice of default and demand for payment on the Renewal Note.

Shortly after FCLT sent the default notice, however, Louise died. Louise's daughters, Antoinette Bracher Lawrence and Barbara Olson,¹ were appointed co-independent executors of her estate. By their terms, both the Antoinette Bracher Lawrence Trust and the Barbara K. Bracher Trust were distributed to Lawrence and Olson, respectively. The David A. Bracher Family Trust ("Family Trust"), however, remained intact, with two of Victor and Louise's grandchildren — James Bracher and Victoria Bracher-Noyes — later appointed co-trustees.

PROCEDURAL BACKGROUND

In February 1998, unaware that Louise Bracher had died, FCLT filed the present lawsuit against her, seeking the amount due under the Renewal Note plus attorney's fees. A year later, FCLT amended its petition to name as defendants (1) the Estate of Louise Bracher; (2) Lawrence, both individually and as co-executor of Louise's estate; (3) Olson, both individually and as co-executor of Louise's estate; and (4) David Bracher. In addition to seeking payment under the Renewal Note, FCLT further alleged that the defendants "dissipated" the assets in Louise's estate and that Lawrence and Olson breached their fiduciary duties by allowing this dissipation of estate assets. In June 1999, FCLT again amended its petition, adding three new defendants: (1) the Family Trust; (2) Bracher-Noyes, both individually and as co-trustee of the Family Trust; and (3) James Bracher, both individually and as co-trustee of the Family Trust. FCLT's second amended petition also added a claim, under the heading "Fraud," alleging the defendants acted knowingly and intentionally.

David Bracher filed a motion for summary judgment in December 1999. In February 2000, three of the other defendants — Bracher-Noyes and James Bracher (both individually and as co-trustees) and Lawrence (in her individual capacity only) — filed a separate summary judgment motion (the "First Joint Motion").² FCLT responded by again amending its petition. Ultimately, FCLT's petition asserted the following five causes of action:

(1) A claim against Lawrence and Olson³ for their refusal to pay the amount due under the Renewal Note.

(2) Claims against Lawrence and Olson, as co-executors of Louise Bracher's estate, and against Lawrence, Olson, James Bracher, and Bracher-Noyes for "dissipation of assets."

(3) Claims against Lawrence, Olson, James Bracher, and Bracher-Noyes for breach of fiduciary duty.

(4) Claims against Lawrence, Olson, James Bracher, and Bracher-Noyes, both as individuals and as executors or trustees, for conversion.

(5) A claim against Lawrence and Olson for engaging in fraudulent acts.

FCLT sought a judgment in the amount of the debt plus interest and attorney's fees, a turnover order for all assets currently in or received from Louise's estate or the trusts to pay FCLT's debt, an accounting from the co-executors of Louise's estate and the co-trustees of the Family Trust, and an injunction against further distributions from Louise's estate or the Family Trust.

After FCLT amended its petition, David Bracher filed an amended motion for summary judgment, while the remaining defendants filed a new motion for summary judgment (the "Second Joint Motion").⁴ FCLT also filed its own motion for summary judgment.

The trial court granted all defendants' motions and ordered that FCLT take nothing. In twelve points of error, FCLT complains the trial court erred by (1) granting summary judgment based on limitations; (2) granting summary judgment based on the statute of frauds; (3) granting defendants' summary judgment motions based on "no evidence"; and (4) denying FCLT's motion for summary judgment (a) against Louise's estate on the debt; (b) against Lawrence and Olson individually for breach of fiduciary duty and for holding and dissipating assets subject to FCLT's debt claim; (c) against James Bracher and Bracher-Noyes, as co-trustees, for holding assets in the Family Trust subject to FCLT's debt claim; (d) against James Bracher and Bracher-Noyes individually for breach of fiduciary duties and for receiving and dissipating assets subject to FCLT's debt claim; (e) against David Bracher for receiving assets subject to FCLT's debt claim; (f) for an accounting; (g) for foreclosure and/or garnishment of assets subject to FCLT's debt claim and for an injunction against further dissipation of such assets; and (h) for FCLT's attorney's fees.

STANDARD OF REVIEW

The following standard for reviewing a traditional motion for summary judgment is well-established: (1) the movant must show that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, proof favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be resolved in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). On a "no evidence" summary judgment, we review the proof in the light most favorable to the nonmovant and disregard all proof and inferences to the contrary. Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432 (Tex.App.-Houston [14th Dist.] 1999, no pet.). A no-evidence summary judgment is improperly granted if the nonmovant counters with more than a scintilla of probative proof to raise a genuine issue of material fact. Id. More than a scintilla of proof exists when the proof "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)).

Where, as here, both sides move for summary judgment, and one motion is granted while the other is denied, we must review the summary judgment proof and determine all questions presented, rendering such judgment as the trial court should have rendered. Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997). Because the trial court's order does not specify the grounds upon which summary judgment was granted, we may affirm the judgment on any theory advanced in the motions that is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

APPELLEES' MOTIONS FOR SUMMARY JUDGMENT

In its first three points of error, FCLT contends the trial court erred by granting appellees' motions for summary judgment based on (1) limitations, (2) the statute of frauds, and (3) "no evidence" of one or more essential elements of FCLT's claims. Because we may affirm the court's judgment on any meritorious ground asserted, we will review each cause of action alleged by FCLT and determine whether appellees have established their entitlement to summary judgment on any ground.

Debt

FCLT...