Montgomery v. Kennedy

• Decision Date: 16 March 1983
• Docket Number: No. 08-82-00029-CV,08-82-00029-CV
• Citation: 651 S.W.2d 814
• Parties: Virginia Lou Wilkinson MONTGOMERY, et al., Appellants, v. Virginia McEntire KENNEDY, et al., Appellees.
• Court: Texas Court of Appeals

Page 814

651 S.W.2d 814

Virginia Lou Wilkinson MONTGOMERY, et al., Appellants, v. Virginia McEntire KENNEDY, et al., Appellees.

No. 08-82-00029-CV.

Court of Appeals of Texas El Paso.

March 16, 1983.

Rehearing Denied May 4, 1983.

Eugene Clements, Porter & Clements, Houston, for appellants.

John B. Holstead, Paul D. Clote, Vinson & Elkins, Robert E. Morse, Jr., Houston, Sam Sparks Grambling, Mounce, Sims, Galatzan & Harris, El Paso, for appellees.

Before STEPHEN F. PRESLAR, C.J., and OSBORN and SCHULTE, JJ.

OPINION

OSBORN, Justice.

This is an appeal from a summary judgment denying a bill of review filed to set aside an earlier judgment entered between these same parties. We affirm.

Jack B. Wilkinson of Midland died in 1969, and his probated will created three testamentary trusts which were to be funded from his residuary estate. His wife, Virginia, was the life beneficiary of the first trust which was to be funded with one-half of the residuary estate. His two children, Virginia Lou and Jack, Jr., were the life beneficiaries of the other two trusts and they were to each be funded with one-fourth of the residuary estate. Virginia Lou's three children were holders of the remainder interest under her trust. The wife and son were named as Independent Executrix and Executor of the will and as Trustees of the three trusts.

When the trusts were never funded and no distributions paid to her, Virginia Lou in 1974, through her attorney, began negotiations to sell her trust interest and her stock in Wilkinson Realty Company, a family owned company, for cash to her brother. Apparently, some hard feelings had developed between the family members after the death of Jack, Sr. and all parties were represented by counsel in an effort to divide the estate.

In late 1974, a settlement agreement and release was prepared providing that Virginia Lou and her children would receive $350,000.00 for their share of her father's trust and for the realty company stock, and the trust would be terminated and her mother and brother would be released from all other claims. In order to complete the settlement and have a judgment binding the minor children, a suit was filed by Virginia and Jack, Jr. in December, 1974, in the 171st District Court seeking a court order approving the settlement agreement, terminating the three trusts and dividing the sum paid between Virginia Lou and her children. Virginia Lou and the children answered and filed a counterclaim for damages and a Third Party Action against Wilkinson Realty Company. A hearing was set for December 30, 1974, but Virginia Lou became concerned about the value of some mineral interest owned by the estate and, after she refused to proceed with the hearing, it was cancelled. After further review of the values with a geologist of her choice, she decided to proceed with the settlement, and following a hearing on January 24, 1975, a judgment was entered approving the settlement agreement between the parties and finding that Jack, Jr. had purchased Virginia Lou's interest in the estate for $197,500.00, ordering that $22,500.00 of that amount be paid into the registry of the court for the minor children, and further approving the Wilkinson Realty Company purchase of Virginia Lou's stock for $152,500.00.

In the fall of 1975, Virginia Lou learned of oil and gas discoveries on the ranch in Sterling County where the estate owned mineral interest. In January, 1977, the Appellants, Virginia Lou and her children, filed a bill of review action and they filed an amended petition in October, 1979, for a bill of review, declaratory relief and an accounting. Appellants sought to set aside the judgment entered in January, 1975, along with the settlement agreement and release, and to restore title to all interest in the Appellants and for reinstatement of the testamentary trusts, plus an accounting on the interest acquired from Appellants. Appellees answered and filed a motion for summary judgment which was granted. This appeal is from that judgment.

The Appellants present a single point of error asserting the trial court erred in granting the motion for summary judgment. They present three basic arguments contending that (1) fact issues exist as to whether the trial court had jurisdiction to enter the 1975 judgment, (2) fact issues exist as to whether Appellants are entitled to a statutory bill of review and (3) fact issues exist as to whether Appellants are entitled to an equitable bill of review. In passing on these contentions, we recognize that a defendant moving for a summary judgment assumes the burden of showing as a matter of law that the plaintiff had no cause of action against him. Citizens First National Bank of Tyler v. Cinco Exploration Company, 540 S.W.2d 292 (Tex.1976). In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movants must be taken as true and every reasonable inference must be indulged in favor of the non-movants and any doubts resolved in their favor. Wilcox v. St. Mary's University of San Antonio, Inc., 531 S.W.2d 589 (Tex.1975).

The Appellants contend there was no justiciable controversy between the parties when the "friendly suit" was filed in 1974 and judgment entered in 1975. It is asserted that the judgment was nothing more than a judicial affirmance of a written settlement agreement and release between the parties which had disposed of all issues and left no controversy pending at the time suit was filed. Such contentions overlook the fact that Appellants filed a counterclaim seeking damages in the amount of $600,000.00 in lieu of their trust assets. If there was no real controversy, there was no reason for Virginia Lou to refuse to participate in the scheduled hearing in December, 1974, and insist on contacting a geologist of her choice prior to accepting the terms of the settlement agreement.

Article 7425b-24, Tex.Rev.Civ.Stat.Ann. (Vernon 1960), in subsection A, provides:

The district court shall have original jurisdiction to construe the provisions of any trust instrument; to determine the law applicable thereto; the powers, responsibilities, duties and liability of trustee; * * *.

The nature of the suit is a question of law to be determined by the court solely from the facts alleged in the petition and counterclaim and the rights asserted and relief sought. Cogdell v. Fort Worth National Bank, 537 S.W.2d 304 (Tex.Civ.App.--Fort Worth 1976, writ dism'd). In addition to its jurisdiction under the above quoted provision of the Texas Trust Act, the trial court had jurisdiction under the Texas Declaratory Judgment Act, Article 2524-1, Tex.Rev.Civ.Stat.Ann. (Vernon 1965), to construe the express provisions of the will. Magids v. American Title Insurance Company, Miami, Florida, 473 S.W.2d 460 (Tex.1971). We conclude the trial court had jurisdiction of the suit filed in 1974 and in which the 1975 judgment was entered.

But, if such holding is not correct, the Appellants are estopped to assert otherwise. In Spence v. State National Bank of El Paso, 5 S.W.2d 754 (Tex.Comm'n App.1928), the court noted that where a party invoked the jurisdiction of the court to appoint a receiver of their property, they could not thereafter be permitted to question the validity of such appointment for the want of jurisdiction. The court said To permit one to invoke the exercise of a jurisdiction within the general powers of a court and then to reverse its orders upon the ground that it had no jurisdiction would be to allow one to trifle with the courts. The principle is one of estoppel in the interest of a sound administration of the laws whereby the regularity or even validity of an act procured by one himself cannot be raised--not that the act is valid, for it may not be, and estoppel does not make valid the thing complained of, but merely closes the mouth of the complainant.

The holding in the Spence case was followed in Gaspard v. Gaspard, 582 S.W.2d 629 (Tex.Civ.App.--Beaumont 1979, no writ); Garza v. Perez, 403 S.W.2d 849 (Tex.Civ.App.--Corpus Christi 1966, no writ); and Dutchover v. Dutchover, 334 S.W.2d 569 (Tex.Civ.App.--El Paso 1960, no writ). Having filed a cross-claim to recover money damages and having been paid the amount agreed upon in the court-approved settlement agreement, including the amount ordered paid into the registry of the court for the minor children, the Appellants are estopped to question the jurisdiction of the trial court.

We now turn to the issue of whether material facts exist as to whether Appellants are entitled to a statutory bill of review. The contention is made that Appellants are entitled to a bill of review under Section 31 of the Probate Code upon a showing of any substantial error by the trial court in the original action. They contend that they are not bound in the statutory bill of review to the strict requirements of an equitable bill of review. Jackson v. Thompson, 610 S.W.2d 519 (Tex.Civ.App.--Houston [1st Dist.] 1980, no writ); Hamilton v. Jones, 521 S.W.2d 350 (Tex.Civ.App.--Houston [1st Dist.] 1975, writ ref'd n.r.e.). We agree with these contentions, but do not find any substantial error by the trial court in the original action. In the Appellants' brief there is not a single trial court error specified as a basis for the granting of a statutory bill of review. None of the cases cited by Appellants can be relied upon as supporting a contention of error by the trial court in this case. The trial court had jurisdiction of the subject matter and the parties, and there was no procedural error which requires reversal. There is no fact issue with regard to a statutory bill of review.

The last and most difficult issue concerns Appellants' right to an equitable bill of review and whether a fact question exists as to this phase of the case. To be entitled to an equitable bill of review to set aside an earlier final judgment, a party must allege and prove: (...