Langford v. Shamburger

• Decision Date: 14 April 1967
• Docket Number: No. 16810,16810
• Citation: 417 S.W.2d 438
• Parties: P. P. LANGFORD, III, Appellant, v. C. D. SHAMBURGER, Jr., Individually and as Trustee, Appellee. . Fort Worth
• Court: Texas Court of Appeals

Page 438

417 S.W.2d 438

P. P. LANGFORD, III, Appellant, v. C. D. SHAMBURGER, Jr., Individually and as Trustee, Appellee.

No. 16810.

Court of Civil Appeals of Texas Fort Worth.

April 14, 1967.

Rehearing Denied June 30, 1967.

Peery, Wilson & Jameson, and Kearby Peery, Wichita Falls, for appellant.

Nelson, Montgomery & Robertson, and Ernest Robertson, Spence, Martin & Richie, and Howard L. Martin, Wichita Falls, for appellee.

LANGDON, Justice.

OPINION

This is a suit by P. P. Langford, III, appellant, the beneficiary, against C. D. Shamburger, Jr., individually, and as trustee of the P. P. Langford, III Trust and as Independent Executor of the Estates of C. D. Shamburger, Sr., and Mrs. C. D. (Alma) Shamburger, Sr., appellee, for an accounting as to interest on money allegedly borrowed from the trust; for interest on trust funds which were not invested by the trustee; or trust proceeds said to have been commingled with those of the trustee and for profits realized by the trustees through self-dealing with trust funds. Trial was had before a jury, and based upon the jury's findings, the District Court entered judgment for the appellee. We reverse the judgment of the court below and remand the case for a new trial.

C. D. Shamburger, Sr., and his wife, Alma Shamburger, of Wichita Falls, Texas, were the parents of three children as follows:

(1) A daughter, Gracye Shamburger. She married Eugene Clark, Sr. Their son is Eugene Clark, Jr.

(2) A daughter, Dorothy Shamburger. She married Pierce Langford, Jr. Their children are Pierce Langford III (appellant here), Stan Langford and Sue Langford.

(3) A son, C. D. Shamburger, Jr. (appellee).

This was the family status as it pertained to the children and grandchildren of C. D. Shamburger, Sr. and his wife as of November 11, 1943, date of the first trust hereinafter described.

Mr. C. D. Shamburger, Sr., was a very astute and successful businessman, primarily engaged in the cattle and lumber business. The C. D. Shamburger Lumber Co., Inc., of which he owned in excess of 80% Of the stock, was the parent lumber company which did business with some 27 branch lumber companies located in North Texas and Oklahoma. He owned ranch lands in excess of 30,000 acres near Texline, Texas, and a ranch at Paducah, Cottle County, Texas. He ran large herds of cattle on these ranches.

Mr. Shamburger, Sr., made numerous gifts of land and personal property to all three of his children at various times. Among the gifts to his daughters, Grayce Clark and Dorothy Langford, were several hundred head of cattle. (Or the gifts were made through them to their respective husbands.) After this gift to them Mr. Shamburger, Sr., prevailed upon his daughters and their respective husbands to create a trust naming him as trustee and placing with him these several hundred head of cattle for the use and benefit of their children, his grandchildren. This trust was created on November 11, 1943. C. D. Shamburger, Jr., was not a trustee or co-trustee under this trust. It was handled exclusively by C. D. Shamburger, Sr.

On December 31, 1946, P. P. Langford, Jr., joined by his wife, Dorothy S. Langford, and by E. B. Clark and C. D. Shamburger, Sr., revoked the prior trust of November 11, 1943. Contemporaneously with their revocation of the 1943 trust, these same parties created three new trusts out of the assets of the prior trust for the benefit of the three Langford children and a trust for Eugene Clark, Jr. Each of the new Langford trusts had as the corpus of the trust an undivided one-third (1/3) interest in the cattle allocated to the Langford interest under the original trust, together with their increase and any money derived from cattle sales. Each new trust for the benefit of the grandchildren appointed C. D. Shamburger, Sr. and C. D. Shamburger, Jr., as co-trustees, to take possession of and to manage and control the trust properties.

In addition to its other terms, the 1946 trust further provided:

'The trustees and any successor trustee shall at all times maintain adequate and comprehensive records showing all items of trust property, income, expenditures and reserves, which record shall be posted to date and shall accurately show the condition of the trust estate at the close of each calendar month and of each calendar of fiscal year, and such posting shall take place during and at the end of the immediate succeeding calendar month.

'No trustee shall ever be liable for any act of omission or commission unless such act is the result of gross negligence or of bad faith or of the trustee's own defalcation, and no trustee shall ever be liable individually for any obligation of the trust.'

C. D. Shamburger, Sr., and C. D. Shamburger, Jr., accepted appointment as co-trustees of the trust and agreed to be bound by its terms and provisions in handling the trust estate. The newly created trust was made irrevocable and is subject to our Texas Trust Act, Art. 7425b, Vernon's Ann.Civ.St.

In addition to the property covered by the trust, C. D. Shamburger, Sr., had given each of his grandchildren several thousand acres of land. Appellant, P. P. Langford, III, was given 4,292 acres of grassland near Texline, Texas. Arrangements were made whereby the co-trustees would run the trust cattle as well as their own cattle on land given to the grandchildren and to pay them, including the appellant, rentals for the use of such grasslands. The ownership of the grassland was completely disassociated from the trust property. From 1950 through 1956 the appellant was paid in excess of $22,000.00 in rental for his land.

The trust acquired a property known as the Shamburger-Langford Lumber Company at Walters, Oklahoma. One-third was owned by the appellant's trust and the other two-thirds by his brother, Stan, and sister, Sue, respectively.

The appellant by his point No. 5 contends that the District Court erred in not sustaining his motion in limine which was directed to the exclusion of evidence that he had been sued in two other cases in which judgments had been taken against him; that his grandfather had made numerous gifts to him and members of his family; that he took an airplane trip to some half a dozen different countries; that he purchased an expensive sports car and camera and had built an expensive lake house. By his points 6, 7, 8, 9, 10, 12 and 14, appellant complains of the court's action in permitting evidence to be introduced before the jury on the matters (above listed) as contained in his motion in limine and in permitting evidence that he had been paid in excess of $22,000.00 in rentals for his land. By his points 15 and 16 he urges error in permitting the defendant to argue such matters.

We agree with the appellant. The motion in limine to exclude evidence concerning such extraneous matters should have been sustained. Such evidence and the arguments based thereon had no bearing upon the merits of the case or the ultimate fact issues which the jury had to determine and objections thereto should have been sustained.

At best the trial was involved and highly technical in nature. The extraneous matter introduced before the jury was calculated to confuse rather than to enlighten it. The only other purpose to be served by such evidence would be to prejudice the minds of the jury by its introduction and to compound this injury by permitting argument emphasizing such prejudice.

Over objection appellee was permitted to prove that the appellant had built a lake house at a cost of.$37,956.56 and that appellant's grandfather had paid him rentals in excess of $22,000.00 for his grassland and had given him 4,292 acres of land. This was followed by argument in part as follows:

'C. D. Shamburger, Sr. made the Plaintiff rich, and the evidence shows it. * * * We know one thing. We know that for years after it was given to the Plaintiff. * * * Now this is not part of his trust, mind you; this is outright gift of land to this Plaintiff by his grandfather. * * * P. P. Langford, III is leasing this land that he got as a gift from this grandfather, 4292 acres of grassland, for money that he can use personally. * * * He had given them the land first and then the cattle, they put their own trust cattle on the land, let them graze on the land--neat idea. * * * I have always heard that blood is thicker than water, but evidently it isn't as thick as money, and so here he comes back into court, and is wanting to sue and get more money, not satisfied with what has been given him by his grandfather. * * *'

The further argument was then made, based upon this improper evidence:

'The undisputed testimony shows that that little lake cabin down there cost.$37,956.56. Where do you get that figure? Well, you know he had a little dispute with Henry Naylor, and he had to be sued before he would pay Henry Naylor, so there went $11,145.70.'

Even after the trial court had ruled out the Naylor judgment, appellee sought to get this evidence before the jury through another means. Appellant was asked if he were willing to pay his account allegedly owed to the Shamburger Lumber Company and, upon his affirmative reply, was then asked if he would pay that account just like he had paid the Naylor account where suit had been brought and judgment taken against him.

Appellee argues that since trust money was advanced to pay these judgments, the trustee is required to account for the money. In his motion in limine, appellant stipulated that he would not make any contention against the appellee for advancing sums of money to pay for such judgments. Appellant also stipulated in open court, outside the presence of the jury, that appellant was making no contention against appellee concerning these judgments or monies advanced to pay them off. Under these circumstances, we are of the opinion that it was clearly error for the trial court to submit issues on these matters to the jury.

Upon retrial of this case, it should be kept in mind that we...