In re Estate of Gibbs
| Decision Date | 30 May 2019 |
| Docket Number | No. 02-18-00086-CV,02-18-00086-CV |
| Parties | ESTATE OF BERT HUGHES GIBBS, DECEASED |
| Court | Texas Court of Appeals |
On Appeal from Probate Court No. 2 Tarrant County, Texas
Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
Jeri Lynn Bell appeals from a final summary judgment for Kenneth Gibbs, as executor of Bert Hughes Gibbs's estate, in Bell's suit arising from a trust agreement she and Bert entered into over twenty years before his death. Bell raises three issues challenging the summary judgment on her declaratory judgment claim and her request for the trial court to impose a constructive trust on income from the real property that is the subject of the trust agreement. We reverse and remand.
In 1990, Bell and Bert signed a written agreement (the Trust Agreement) under which Bell would give Bert $13,845.16 for him to use as a down payment on thirty acres that Bert would own as trustee for Bert's three children and Bell. The Trust Agreement provided that Bell and Bert, as trustee, would bear the property's expenses equally but would also share the property's net proceeds equally upon any sale. Bell understood that Bert was purchasing the property for investment purposes and intended to flip it within ninety days. Bell paid Bert according to the agreement, and Bert completed the purchase. The recorded deed lists the grantee as "Bert H. Gibbs, Trustee." Bert financed the rest of the purchase and executed a deed of trust to secure the lien on the property; he signed the recorded deed of trust as "Bert H. Gibbs, Trustee." No one recorded the Trust Agreement in the property records. Bert did not sell the property as quickly as he and Bell had anticipated, and Bert and Bell continued to pay the lien and property taxes.
Bert sold the eastern half of the property in 1992. He used the proceeds to pay off the debt and pay himself a commission; he split the remaining profit with Bell and paid her back part of the original down payment she had given him. Shortly thereafter, Bert also told Bell they "were now equal partners in the remaining acres."
Over the next decade, Bert attempted to sell the remaining fifteen acres (the Real Property) at least once that Bell knew of, and he also tried to buy out Bell's share. In July 2000, Bert told Bell that he had conveyed his one-half interest in the Real Property in 1997. But he assured Bell that the conveyance did not affect her one-half interest he held in trust.
Bert died on December 31, 2004. Bell was not concerned about the Real Property when she found out because she thought that because Bert had owned her one-half interest as trustee she "would be located" by his heirs. But when no one representing Bert's estate contacted her by 2006, Bell hired an attorney to investigate the Trust Agreement's status. As a result, Bell discovered that around 2000 or 2001, Bert had conveyed the remaining one-half interest in the Real Property to another trust. She also discovered (1) that the court that heard Bert's 2003 divorce had voided both of Bert's partial conveyances of the Real Property for fraud on the community and awarded the Real Property to Bert's ex-wife Kathryn Gibbs and (2) that the co- guardians of Kathryn's estate1 had leased the oil, gas, and minerals on the Real Property in 2005.
On March 29, 2007, Bell sued Kip and Sandra Gibbs as co-guardians of Kathryn's estate, and Kenneth as executor of Bert's estate, in Denton County district court seeking (1) "a declaratory judgment that [she] is the owner of a one-half undivided interest in" the Real Property and (2) "damages in an amount equal to one-half of all royalties and any other payment made pursuant to" the 2005 oil and gas lease. Bell also brought a claim for conversion, sought an accounting of all revenue received and expenses incurred by any of the Real Property owners, and asked the trial court to impose a constructive trust on her one-half of any funds received from the Real Property, plus interest and earned income. Although Bell served Kip and Sandra, she did not serve Kenneth at this time.
The trial court abated the suit so that Kenneth and Kathryn's co-guardians could resolve title issues between the two estates. As part of their 2008 settlement, the Real Property was conveyed to Bert's estate. Afterwards, in 2009, Bert's estate conveyed all of its interest in the Real Property's mineral estate to unrelated third parties.
After the trial court reinstated the case, Bell served the original petition on Kenneth's attorney. Kip and Sandra, who are not parties to this appeal, filed a motion for summary judgment, which the trial court granted.2 After the 431st District Court held a bench trial and ruled in Bell's favor on her declaratory judgment claim—but deferred a ruling on the amount of an attorney's fees award—and before that court signed a written judgment, Kenneth challenged the district court's subject matter jurisdiction. The case was then transferred to Tarrant County Probate Court Number 2.
Three years later, Kenneth filed a combined traditional and no-evidence motion for summary judgment on all of Bell's claims against him. After a nonevidentiary hearing, the visiting trial judge stated on the record that he was granting only the traditional motion, but he later signed a final judgment for Kenneth that did not distinguish between the no-evidence and traditional motions. On appeal, Bell challenges the summary judgment on her declaratory judgment claim and constructive trust request only.
Because Bell did not file a response to Kenneth's motions for summary judgment, she may only complain on appeal that the motion or Kenneth's evidence supporting the motion are insufficient as a matter of law. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). And she is required to make either a general assignment of error covering all possible summary judgment grounds on the claims for which she contends summary judgment was in error (a "Malooly issue") or specific assignments of error for each individual ground. See Malooly Bros. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). Because Kenneth moved for summary judgment on both traditional and no-evidence grounds—and because the trial court signed a general judgment that does not state whether it was granting either the no-evidence or traditional summary judgment—Bell must have challenged both the traditional and no-evidence motions on the declaratory judgment and constructive trust claims in her briefing. See id.; Miller v. El Campo Holdings, LLC, No. 02-15-00388-CV, 2017 WL 370936, at *4 (Tex. App.—Fort Worth Jan. 26, 2017, no pet.) (mem. op.) ( that if trial court signs general summary judgment order that does not specify whether court is granting summary judgment on one type of motion to the other's exclusion, appellant must challenge both motions in its briefing).
Bell's briefing regarding the scope of her challenge to the summary judgment is confusing and contradictory. On one hand, her issues refer only to the traditional motion, and she specifically disclaims challenging the no-evidence motion because the trial judge stated on the record that he was granting only the traditional motion. But elsewhere in her brief, Bell raises a general challenge to both the no-evidence and traditional summary judgment motions, as well as a challenge to the sufficiency of Kenneth's motion: "The only legal theories properly advanced by [Kenneth] to deprive [Bell] of her interest under the Trust Agreement were that (1) she should have asserted a trespass-to-try-title action instead of a declaratory judgment action and that (2) she should have sued [Bert/Kenneth] or the Estate sooner." [Emphasis added.] In the argument on her constructive trust issue, she identifies each element of her claim and identifies evidence in support. Because the supreme court has repeatedly admonished courts of appeals not to elevate form over substance—and to construe briefs liberally so that issues are decided on their merits rather than procedural irregularities—we conclude that Bell has adequately challenged all grounds on which the trial court could have granted summary judgment. See, e.g., Tex. R. App. P. 38.1(i); Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012) ( ); Perry v. Cohen, 272 S.W.3d 585, 587-88 (Tex. 2008).
Additionally, a no-evidence summary judgment on the declaratory judgment and constructive trust claims would have been improper for several reasons. First, Kenneth's "no evidence" argument on the declaratory judgment claim is the same as his argument in the traditional motion: that Bell cannot bring a declaratory judgment claim as a matter of law.3 This is the very ground Bell disputes in her first issue on appeal. Second, Kenneth's no-evidence ground on the constructive trust claim is that the imposition of a constructive trust is not a proper remedy under these factual circumstances; this is an equitable determination for the trial court. See Burrow v. Arce, 997 S.W.2d 229, 245 (Tex. 1999); Sam Rayburn Mun. Power Ageny v. Gillis, No. 09-16-00339-CV, 2018 WL 3580159, at *9 (Tex. App.—Beaumont July 26, 2018, pet. denied) (mem. op.); cf. McCracken v. MonoSol RX, LLC, No. 02-12-00151-CV, 2014 WL 4937997, at *8 (Tex. App.—Fort Worth Oct. 2, 2014, no pet.) (mem. op.) ( that no-evidence summary judgment on purely legal question is improper). Third, Kenneth's motion is insufficient on both...
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