Wells Fargo Bank Texas v. Foulston Siefkin Llp

• Court: U.S. District Court — Northern District of Texas
• Writing for the Court: Lindsay
• Citation: Wells Fargo Bank Texas v. Foulston Siefkin Llp, 348 F.Supp.2d 772 (N.D. Tex. 2004)
• Decision Date: 17 December 2004
• Docket Number: No. Civ.A. 302CV0139L.,Civ.A. 302CV0139L.
• Parties: WELLS FARGO BANK TEXAS, N.A., Trustee of the Eleanor Pierce Stevens Irrevocable Gift Trust, Plaintiff, v. FOULSTON SIEFKIN LLP and Harvey R. Sorensen, Defendants and Counter-Plaintiffs.

348 F.Supp.2d 772

WELLS FARGO BANK TEXAS, N.A., Trustee of the Eleanor Pierce Stevens Irrevocable Gift Trust, Plaintiff, v. FOULSTON SIEFKIN LLP and Harvey R. Sorensen, Defendants and Counter-Plaintiffs.

No. Civ.A. 302CV0139L.

United States District Court, N.D. Texas, Dallas Division.

December 17, 2004

COPYRIGHT MATERIAL OMITTED

Jeffrey E. Cook, Shannon L. K. Welch, Sullivan Parker & Cook, T. Wesley Holmes, James A. Fisher, Fisher Holmes & Turner, Dallas, TX, for Plaintiff.

Ernest E. Figari, Jr., Dennis M. Lynch, Melissa A. Mitchell, Figari & Davenport, Dallas, TX, for Defendants.

ORDER

LINDSAY, District Judge.

Before the court are the Motion of Defendants and Counter-Plaintiffs Harvey R. Sorensen and Foulston Siefkin LLP for Partial Summary Judgment, filed May 19, 2004; Plaintiff's Motion for Summary Judgment, filed June 7, 2004; and Objections of Defendants and Counter-Plaintiffs Harvey R. Sorensen and Foulston Siefkin LLP to Plaintiff's Supplemental Appendix, filed July 22, 2004. After careful consideration of the motions, responses, replies, competent summary judgment evidence, record and applicable law, the court grants the Motion of Defendants and Counter-Plaintiffs Harvey R. Sorensen and Foulston Siefkin LLP for Partial Summary Judgment; grants in part and denies in part Plaintiff's Motion for Summary Judgment; and denies as moot Objections of Defendants and Counter-Plaintiffs Harvey R. Sorensen and Foulston Siefkin LLP to Plaintiff's Supplemental Appendix.

I. Factual and Procedural Background

Plaintiff Wells Fargo Bank, Texas, N.A. ("Wells Fargo" or "Plaintiff"), Trustee of the Eleanor Pierce Stevens Irrevocable Gift Trust, filed this action in Dallas County Probate Court on December 21, 2001, against Foulston Siefkin LLP ("Foulston Siefkin") and Harvey R. Sorensen ("Sorensen") (collectively referred to as "Defendants"). Wells Fargo seeks a declaratory judgment under Tex.Civ. Prac. & Rem.Code § 37.001 et seq. (Vernon 2002) that trust assets not be used to pay litigation fees and expenses related to defending Defendants for alleged misconduct related to the administration of the Eleanor Pierce Stevens Irrevocable Gift Trust ("Trust"). Defendants removed the action to federal court on January 22, 2002, because of diversity of citizenship between the parties and the amount in controversy exceeds $75,000. Defendants filed a counterclaim against Plaintiff alleging breach of contract or violation of Trust, and negligence. Defendants seek a declaratory judgment as to the amount they should recover from Plaintiff and attorney's fees.

Defendants filed a motion for partial summary judgment seeking an interpretation of the Trust provision upon which they rely for their claim of reimbursement. Plaintiff filed a motion for summary judgment seeking, among other things, a declaration that it is not obligated to pay Defendants any amount of money; or, in the alternative, that Defendants' recovery cannot exceed $250,000. The court now sets forth the undisputed facts on which it relies to resolve the motions. In setting forth the facts, the court applies the summary judgment standard as set forth in the following section.

The Trust was created by a written instrument dated April 27, 1989. Sorensen, a licensed attorney in Kansas, is a partner in Foulston Siefkin. He represented Eleanor Stevens ("Stevens") beginning in 1984, and assisted her in preparing and implementing her estate plan. Stevens is the former wife of J. Howard Marshall, II. The corpus of the Trust is and always has been a 10% debenture from Marshall Petroleum, Inc., with a face value of $6,000,000. The Trust, by way of the debenture, provides $50,000 in monthly income. The terms and provisions of the Trust are "construed, interpreted, governed and controlled" by "the laws of the State of Kansas." See Defs.'s App. at 21. None of the parties disputes that Kansas law controls. For the first ten years, Stevens was the primary beneficiary under the Trust. Thereafter, Stevens's son, J. Howard Marshall, III ("Marshall III"), became the primary beneficiary, and is now the sole income beneficiary of the Trust. He is entitled to the $6,000,000 debenture that matures on July 1, 2009.

Sorensen served as trustee for the Trust from the date of its creation until he resigned in March of 1996. He was a partner with Foulston Siefkin during his tenure as trustee. In accordance with the terms of the Trust, Sorensen appointed Southwest Guaranty Trust Company as the successor trustee. Through a series of transactions, Wells Fargo became trustee for the Trust in 1999.

In January 1996, prior to Sorensen's resignation as trustee, Marshall III filed suit ("Marshall Case") against several defendants, including Sorensen and Foulston Siefkin. Most of Marshall III's claims involved the estate of his deceased father, J. Howard Marshall, II. He alleged that Sorensen and Foulston Siefkin, among the other defendants, conspired to interfere with his inheritance rights. He also made claims involving Stevens's estate plan. He contended that Sorensen and others conspired to mislead Stevens; and that Sorensen, as trustee of the Trust, breached a fiduciary duty owed to Marshall III, as a beneficiary of the Trust. The suit was filed in probate court in Harris County, Texas. Defendants retained Beck, Redden & Secrest, L.L.P. ("Beck Redden"), a Houston, Texas law firm, to represent them.

On July 1, 1997, Sorensen and Foulston Siefkin filed a motion for summary judgment on all claims pleaded against them. On June 7, 1999, the probate court granted the motion in part. It ordered that Marshall III "take nothing on all claims asserted in this litigation against Harvey Sorensen and Foulston & Siefkin, L.L.P. arising from or related to the Estate of Eleanor Pierce Marshall Stevens, the property of Eleanor Pierce Marshall Stevens, or the estate planning of Eleanor Pierce Marshall Stevens." Pl.App. at 44. The probate court expressly denied the motion for summary judgment as to all claims related to the estate, property or estate planning of J. Howard Marshall, II. The remaining claims were tried beginning in September 2000. The probate court granted a motion in limine prohibiting counsel from asserting that Sorensen or Foulston Siefkin had breached a fiduciary duty to Marshall III. On January 17, 2001, after Marshall III rested his case, the trial court entered a directed verdict for Sorensen and Foulston Siefkin as to Marshall III's remaining claims against them.

The litigation lasted approximately five years, and the actual trial lasted several months. Defendants contend that they incurred approximately $1,500,000 in attorney's fees and expenses defending the litigation.¹ Foulston Siefkin paid Beck Redden, on behalf of Sorensen and itself. Due to his status as an attorney in Foulston Siefkin, Sorensen was covered by a professional liability insurance policy ("Policy") issued by Attorneys' Liability Assurance Society, Inc. ("ALAS"). Sorensen paid a portion of the premiums for the Policy. ALAS indemnified Sorensen and Foulston Siefkin for all of the Beck Redden fees and expenses in excess of the $250,000 single claim retention amount in the Policy. On April 25, 2001, Defendants requested payment from the Trust for expenses and fees incurred in the Marshall Case in the amount of $1,252,780.22. Pl. Response at 1. Wells Fargo denied that any amounts were due and owing.

Wells Fargo filed this lawsuit on December 21, 2001. Defendants filed their answer on January 22, 2002, and subsequently counterclaimed against Wells Fargo on July 31, 2003. Defendants filed a motion for partial summary judgment seeking an interpretation of the Trust provision upon which they rely for their claim of reimbursement. Plaintiff filed a motion for summary judgment seeking, among other things, a declaration that it is not obligated to pay Defendants any amount of money; or, in the alternative, that Defendants' recovery cannot exceed $250,000. The court now considers the motions.

II. Summary Judgment Standard

Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Anderson, 477 U.S. at 254-55, 106 S.Ct. 2505.

Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir....