Goughnour v. Patterson
| Decision Date | 21 December 2018 |
| Docket Number | NO. 12-17-00234-CV,12-17-00234-CV |
| Parties | DEBORAH PATTERSON HOWARD GOUGHNOUR, APPELLANT v. ROBERT H. PATTERSON, JR., TRUSTEE OF THE DEBORAH PATTERSON HOWARD TRUST, APPELLEE |
| Court | Texas Court of Appeals |
Deborah Patterson Howard Goughnour appeals from an adverse judgment rendered in favor of Robert H. Patterson, Jr., Trustee of the Deborah Patterson Howard Trust. In forty-two issues, Deborah raises complaints regarding discovery rulings, Robert's affirmative defenses to her counterclaims, sufficiency of the evidence to show that Robert properly administered the Trust, conditional provisions in the judgment, attorney's fees, and a discovery abuse sanctions order. We modify in part and affirm as modified.
Robert Harold Patterson, Sr. provided for the creation of a Trust for the benefit of his wife, Ruth, upon his death. Ruth served as the Trustee until 2002, when, by judicial modification, she resigned, and the Trust was divided into four trusts of equal value, named after each of their four children.1 Ruth is the sole beneficiary during her lifetime, and upon Ruth's death any remaining assets in the four trusts pass to the trust's namesake.
In 2002, Robert Patterson, Jr. became Trustee of all four trusts. With the knowledge of Ruth and his three siblings, Robert invested Trust assets to generate income. In July 2007, Robert and his business partner Dean Bailey formed Bighorn Venture III, Ltd. to purchase real estate and develop a residential subdivision. Robert invited Ruth and his siblings to participate by allowing the use of Trust funds. They all agreed, and Robert transferred a total of $2.1 million from the four trusts to Bighorn. The Bighorn project failed, and the Trust lost the $2.1 million.
In 2011, Robert filed a petition for resignation as Trustee of the Deborah Patterson Howard Trust (DPH Trust), approval of accountings, judicial discharge, and appointment of a Successor Trustee. Deborah did not oppose Robert's resignation as Trustee. However, she filed counterclaims against Robert for breach of fiduciary duty, statutory violations, misuse of trust property, and fraud. She also asserted allegations against Robert and Bailey for civil conspiracy to breach fiduciary duty, civil conspiracy to commit fraud, breach of a personal guaranty, and breach of contract. Robert and Bailey asserted numerous affirmative defenses to the counterclaims.
Deborah sought an interlocutory order to remove Robert as Trustee immediately which was denied in March 2013. Deborah filed a motion for partial summary judgment regarding Robert's claim for a discharge from liability and a motion for summary judgment on her claims for breach of fiduciary duty and breach of guaranty. In his response, Robert asserted several affirmative defenses. The trial court denied both motions in August 2015. Additionally, Robert filed no evidence and traditional motions for partial summary judgment on Deborah's guaranty claim and a traditional motion for partial summary judgment attacking her other claims, asserting his affirmative defenses. The trial court granted all three of Robert's motions for partial summary judgment in December 2015.2
After a trial before the court on the remaining issues, the court rendered judgment approving the DPH Trust accounting, ordered that Robert's administration of the DPH Trust is approved, and that Robert, individually and in his capacity of Trustee, is "completely discharged and relieved of all duties" and "fully and completely released and discharged from any and all claims, duties, causes of action or liabilities (including taxes of any kind) relating to any and allactions or omissions in connection with his administration of the DPH Trust." The court ordered that the Trustee or Successor Trustee pay all outstanding legal and accounting fees incurred by the DPH Trust, appointed a Successor Trustee effective as of the date the final judgment becomes final and unappealable, and relieved the Successor Trustee of any and all duty, responsibility, or authority to investigate the actions or inactions of Robert as prior Trustee. The court further ordered that Deborah take nothing on all her claims against Robert and Bailey, incorporating its prior summary judgment orders. The court also ordered Deborah to pay attorneys' fees for Robert and Ruth. This appeal ensued.
Deborah was in favor of Robert's resignation. She felt that he pilfered the Trust for his own benefit and engaged in subterfuge to keep it hidden. In an attempt to recover the money she believed Robert misappropriated, she filed counterclaims for breach of fiduciary duty, fraud, breach of a guaranty, exposure to tax liability, and, together with Bailey, conspiracy to breach fiduciary duty and to commit fraud. All of Deborah's counterclaims were disposed of by summary judgment.
We review the trial court's decision to grant summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm'n, 253 S.W.3d 184, 192 (Tex. 2007). After adequate time for discovery, a party without the burden of proof at trial may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense. TEX. R. CIV. P. 166a(i). Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged element. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A no evidence challenge will be sustained when, among other scenarios, there is a complete absence of evidence of a vital fact. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).
A party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). A defendant who conclusively negates at least one of the essential elements of the cause of action or conclusively establishes an affirmative defense is entitled to summary judgment. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). Once the defendantestablishes his right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact. Simulis, L.L.C. v. Gen. Elec. Capital Corp., 439 S.W.3d 571, 575 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
To determine if there is a fact issue, we review the evidence in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could do so, and disregarding contrary evidence and inferences unless reasonable jurors could not. Gonzalez v. Ramirez, 463 S.W.3d 499, 504 (Tex. 2015) (per curiam); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). More than a scintilla of evidence exists, and the evidence raises a genuine issue of fact, when the evidence rises to a level that would enable reasonable and fair minded jurors to differ in their conclusions in light of all the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam); Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam); Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Forbes, Inc., 124 S.W.3d at 172.
When a party has moved for summary judgment on both traditional and no evidence grounds, we typically first review the propriety of the summary judgment under the no evidence standard. See TEX. R. CIV. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). When both sides move for summary judgment and the trial court grants one motion but denies the other, the appellate court should review both sides' proof and determine all questions presented by the motions. Mid-Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323 S.W.3d 151, 153-54 (Tex. 2010) (per curiam). The appellate court should then render the judgment the trial court should have rendered. Id. at 154. However, the denial of a cross-motion for summary judgment is only reviewable if that cross-motion sought a disposition of all claims in the trial court. See In re D.W.G., 391 S.W.3d 154, 164 (Tex. App.-San Antonio 2012, no pet.).
In her thirteenth issue, Deborah contends the trial court erred in granting Robert's motion for partial summary judgment on her counterclaims,3 which was based on several affirmativedefenses. In her eighth, ninth, and tenth issues, she contends the trial court erred in denying her second motion for partial summary judgment which addressed her claims for breach of fiduciary duty and, alternatively, her claim that Robert breached his personal guaranty. In this motion, she also asserted that Robert's affirmative defenses have no merit.
A suit for breach of fiduciary duty or fraud must be brought no later than four years from the date the cause of action accrues. TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a) (West 2002). When a cause of action accrues is a question of law. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990). A cause of action accrues when facts have come into existence that authorize a claimant to seek a judicial remedy. Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001). Defendants seeking summary judgment on the basis of limitations must prove when the cause of action accrued. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990). In most cases, a cause of action accrues when a wrongful act causes a legal injury, regardless of when the plaintiff learns of that injury. Provident Life & Accident Ins...
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