Guest v Cochran

• Decision Date: 06 May 1999
• Docket Number: CO-EXECUTOR
• Citation: 993 S.W.2d 397
• Parties: <!--993 S.W.2d 397 (Tex.App.-Houston 1999) HENRY G. GUEST, JR., INDIVIDUALLY and as INDEPENDENTof the ESTATES of HENRY G. GUEST, SR. and ADA MADRID C. GUEST, Appellants V. JOHN R. COCHRAN, JR., ESQ. and COCHRAN, ROOKE & CRAFT, L.L.P., Appellees NO. 14-97-00069-CV In The Fourteenth Court of Appeals
• Court: Texas Court of Appeals

Page 397

993 S.W.2d 397 (Tex.App.-Houston[14th Dist.] 1999)

HENRY G. GUEST, JR., INDIVIDUALLY and as INDEPENDENT CO-EXECUTOR of the ESTATES of HENRY G. GUEST, SR. and ADA MADRID C. GUEST, Appellants

V.

JOHN R. COCHRAN, JR., ESQ. and COCHRAN, ROOKE & CRAFT, L.L.P., Appellees

NO. 14-97-00069-CV

In The Fourteenth Court of Appeals

May 6, 1999.

On Appeal from the 11th Judicial District Court Harris County, Texas, Trial Court Cause No. 95-28859

[Copyrighted Material Omitted] Panel consists of Chief Justice Murphy, and Justices Anderson, and Hudson.

O P I N I O N

John S. Anderson,Justice

Appellant, Henry G. Guest, Jr. ("appellant"), Individually and as Independent Co-Executor of the Estates of Henry G. Guest, Sr. and Ada Madrid C. Guest, appeals the granting of summary judgment in favor of appellees, John R. Cochran, Jr. Esq. and Cochran, Rooke & Craft, L.L.P. (collectively "Cochran"). We affirm in part and reverse and remand in part.

I. Background

Henry G. Guest, Sr. and Ada Madrid C. Guest, now deceased, were the parents of appellant and his sisters, Mary Guest Kaeppel ("Kaeppel") and Gloria Guest Reynolds. In 1993, Cochran, an attorney and long-time friend of Kaeppel and her husband, Dr. Christopher Kaeppel, was hired to perform estate planning services for Mr. and Mrs. Guest. Appellant alleges that Cochran conspired with Kaeppel so that she would obtain a disproportionate share of their parents' estates. In support of this contention, appellant claims that all correspondence was between Cochran and Kaeppel, not Mr. and Mrs. Guest. Moreover, Mr. Guest was ill, weak, and in need of a blood transfusion.

On May 5, 1993, Mr. and Mrs. Guest met with Cochran for the first time. Cochran drafted several documents for Mr. and Mrs. Guest, including an irrevocable trust, a deed of gift, a power of attorney, and new wills. Subsequently, on May 17, 1993, Mr. and Mrs. Guest signed the new wills that Cochran had drafted. The new wills, which named each of the Guests' children independent co-executors of the estates, provided that the surviving spouse would receive the other spouse's estate in its entirety, free of trust.¹ If there was no surviving spouse, the Guests' three children would receive equal shares of the estate. The wills did not contain a bypass trust, which, according to appellant, would have minimized the estate taxes.²

The irrevocable trust named Kaeppel as trustee. Appellant claims that this would have given Kaeppel a disproportionate share of the Guests' estates. Mr. and Mrs. Guest, however, did not sign the irrevocable trust or deed of gift because, according to Guest, they did not want to favor Kaeppel over their other children.

On June 14, 1993, Mr. Guest passed away. As provided in the wills, the Guests' three children were independent co-executors of Mr. Guest's estate. Cochran continued as attorney for Mr. Guest's estate. Mrs. Guest passed away on May 17, 1995. Appellant and his sisters were independent co-executors of Mrs. Guest's estate. Mr. and Mrs. Guest had combined estates of $800,000.00. Mrs. Guest's estate paid $60,000.00 in estate taxes.

Appellant sued Cochran on June 13, 1995. Appellant filed his first amended petition on September 28, 1995, seeking damages for excess federal estate taxes paid out of Mrs. Guest's estate. Appellant, individually and as independent co-executor of his parents' estates, sued Cochran for claims of attorney malpractice, conspiracy to breach fiduciary duty, fraud and constructive fraud, negligence, gross negligence, and violations of the Texas Deceptive Trade Practices Act ("DTPA"). With respect to his malpractice and DTPA claims, appellant asserted that Cochran failed: (1) to include a bypass trust or other estate planning mechanism in the will which would have allowed the estates to avoid paying any taxes; and (2) to advise either Mrs. Guest or the executors of Mr. Guest's estate that Mrs. Guest could execute a valid disclaimer of a portion of her "inheritance" from Mr. Guest so that her estate would not have to pay any taxes. Guest based his fraud and conspiracy claims on Cochran's activities and dealings with the Kaeppels and the way in which Cochran dealt with the Guests while he was performing estate planning services for them.

Cochran moved for summary judgment on appellant's first amended petition based on lack of privity or lack of an attorney-client relationship between appellant and Cochran. Appellant responded that Cochran's motion failed to address the claims he brought in his representative capacity on behalf of the estates as independent co-executor. While Cochran's motion for summary judgment was pending, appellant, in both his individual and representative capacities, filed a second amended petition, raising a new claim for negligent misrepresentation.³ Because Cochran did not supplement his pending motion for summary judgment to address this new claim, appellant asserts Cochran's motion also failed to address the additional claim raised in the second amended petition.

In a single point of error, with five subparts, appellant claims the trial court erred in granting summary judgment in favor of Cochran because (a) the summary judgment motion did not acknowledge that appellant, as independent co-executor, sued Cochran on behalf of the estates; (b) appellant has standing as independent co-executor to bring attorney malpractice claims on behalf on the estates; (c) appellant has standing as independent co-executor to bring claims for breach of fiduciary duty, fraud, and constructive fraud on behalf of the estates; (d) Cochran failed to establish that appellant, individually, or as independent co-executor, did not have standing to bring DTPA claims on behalf of the estates; and (e) the motion for summary judgment failed to address the additional claim appellant raised in the second amended petition.

II. Standard of Review

To prevail on a motion for summary judgement, the defendant must "establish as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action." Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); see also Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Once the defendant establishes that no genuine issue of material fact exists regarding an element of the plaintiff's claim, the plaintiff must present competent summary judgment proof raising a fact issue on that element. See Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 127 (Tex. App.-Houston [14th Dist.] 1994, no writ). The Texas Supreme Court set forth the following standard for appellate review of summary judgments:

(1)the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;

(2)in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and

(3)every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Bottoms v. Smith, 923 S.W.2d 247, 249 (Tex. App.-Houston [14th Dist.] 1996, no writ).

III. The Estates' Claims

Appellant first contends the trial court erred in granting Cochran's motion for summary judgment because it did not address the claims Guest brought against Cochran on behalf of the estates in his status as independent co-executor in addition to his personal claims against Cochran. Appellant also asserts Cochran's motion for summary judgment was insufficient as a matter of law because it did not address the additional claims raised in the second amended petition. Because these two arguments are related, we address them together.

Rule 166a(c) sets forth the requirements for granting summary judgment:

The motion for summary judgment shall state the specific grounds therefor. . . The judgment sought shall be rendered forthwith if . . . the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response.

TEX. R. CIV. P. 166a(c). Thus, it is well-settled that a motion for summary judgment must stand or fall on the grounds presented in such motion. See Science Spectrum, Inc., 941 S.W.2d at 912; Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 805 (Tex. 1994); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). The movant must establish his entitlement to summary judgment on the "'issues expressly presented to the trial court by conclusively proving all essential elements in his cause of action or defense as a matter of law.'" Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (emphasis in the original) (quoting City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979)). To conclusively establish the requisite essential elements, the motion must identify or address the cause of action and its elements. See Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). The trial court, therefore, may not grant summary judgment as a matter of law on a cause of action not addressed in the summary judgment proceeding. See Chessher, 658 S.W.2d at 546; Clear Creek Basin Auth., 589 S.W.2d at 677; Rose v. Kober Fin. Corp., 874 S.W.2d 358, 362 (Tex. App.-Houston [14th Dist.] 1994, no writ). For the trial court to do otherwise is reversible error. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993); Smith v. Atlantic Richfield Co., 927 S.W.2d 85, 88 (Tex. App.-Houston [1st Dist.] 1996, writ denied).

Cochran claims his motion for summary judgment expressly addressed all causes of action which appellant pleaded in both his individual and representative capacities. In support of this contention, Cochran points to the following sentence contained in his motion for summary judgment:

Defendants are entitled to summary judgment as a...