Opinion
No. 07-19-00085-CV
08-17-2020
KELLEY O'SHEA DUNCAN AS CO-TRUSTEE OF THE MARITAL DEDUCTION TRUST OF JOHN J.C. O'SHEA, JR., APPELLANT v. KATHLEEN M. O'SHEA, BRIAN CONNOR O'SHEA, AND JOHN J.C. O'SHEA III, IN THEIR CAPACITIES AS CO-TRUSTEES OF THE MARITAL DEDUCTION TRUST OF JOHN J.C. O'SHEA, JR., APPELLEES
On Appeal from the 237th District Court Lubbock County, Texas
Trial Court No. 2018-530,629; Honorable Les Hatch, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
This appeal arises from a dispute among four siblings who serve as cotrustees of the John J.C. O'Shea Jr. Marital Deduction Trust (hereinafter the "Marital Trust"). Appellees, Kathleen M. O'Shea, Brian Connor O'Shea, and John J.C. O'Shea III, filed suit against Appellant, Kelley O'Shea Duncan, pursuant to the provisions of the Texas Uniform Declaratory Judgment Act ("TUDJA"), seeking a declaration "that the sale [of] real property held by the Marital Trust be allowed to proceed solely under the authority and direction of the [Appellees], free and clear of [Appellant] and over any objection of [Appellant] . . . ." Because Appellees constituted a "majority of the trustees" of the Marital Trust, the trial court granted summary judgment relief in their favor. Appellant filed a timely notice of appeal.
TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-37.011 (West 2020).
Raising five issues, Appellant contends the entry of summary judgment was improper because: (1) the relief requested was not authorized by the TUDJA, (2) the trial court lacked jurisdiction to grant the relief and Appellees did not have standing to request the relief granted, (3) the trial court's judgment operates as a de facto removal of Appellant as a cotrustee of the Marital Trust and the removal of a trustee would raise a material fact issue, (4) material fact issues exist with respect to the operation of the Last Will and Testament of John J.C. O'Shea, Jr., and (5) the relief requested amounts to an "advisory opinion." For the reasons that follow, we affirm the judgment of the trial court.
BACKGROUND
The background to this dispute has been set forth at length in prior opinions of this court in O'Shea v. O'Shea, No. 07-16-00321-CV, 2018 Tex. App. LEXIS 6530 (Tex. App.—Amarillo Aug. 17, 2018, pet. denied) (mem. op.) and Duncan v. O'Shea, No. 07-11-00088-CV, 2012 Tex. App. LEXIS 6494 (Tex. App.—Amarillo Aug. 7, 2012, no pet.) (mem. op.). Suffice it to say that the Marital Trust, the subject of this particular dispute, was created by the Last Will and Testament of John J.C. O'Shea, Jr. for the benefit of his surviving spouse, Rita M. O'Shea, during her lifetime and upon her death, the remaining assets in the trust were to be distributed to John J.C. O'Shea, Jr.'s "then living descendants, per stirpes . . . ." Rita O'Shea has now died and, as of the date of her death, the living descendants of John J.C. O'Shea, Jr. were Appellant and Appellees.
Due to numerous disputes between Appellant and Appellees since the death of Mr. and Mrs. O'Shea, Appellees petitioned the trial court for a declaratory judgment affirming their authority to sell certain real property belonging to the Marital Trust, in their capacity as a majority of the cotrustees of the Marital Trust. Specifically, Appellees sought a declaratory judgment with respect to three pieces of real property in which the Marital Trust owned an undivided one-half (1/2) interest. After consideration of their motion, the trial court granted summary judgment declaring that, pursuant to the terms of the Marital Trust and the provisions of the Texas Property Code, a majority of the four cotrustees could sell the real property interests of the Marital Trust, over the objection of a minority cotrustee. The trial court also awarded Appellees a judgment for the recovery of their attorney's fees in connection with the declaratory judgment action. Appellant subsequently brought this appeal.
The three properties were located in Lubbock, Hockley, and Tarrant Counties.
STANDARD OF REVIEW
It is not the function of a summary judgment motion to deprive a litigant of the right to a full hearing on the merits of any real issue; rather, it is to promote the "just, speedy and inexpensive determination of every action" by "eliminating patently unmeritorious claims and untenable defenses," and by resolving any disputed legal issues. See Huckabee v. Time Warner Ent. Co., L.P., 19 S.W.3d 413, 421 (Tex. 2000); Burchinal v. PJ Trailers-Seminole Mgmt. Co., 372 S.W.3d 200, 207 (Tex. App.—Texarkana 2012, no pet.). As an appellate court, we review the granting of a summary judgment under a de novo standard of review. KCM Fin. L.L.C. v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015).
A party seeking affirmative relief pursuant to a traditional motion for summary judgment bears the burden of proving that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c) (West 2004); Lightning Oil Co. v. Anadarko E&P Onshore, L.L.C., 520 S.W.3d 39, 45 (Tex. 2017); Jones Energy, Inc. v. Pima Oil & Gas, L.L.C., No. 07-17-00456-CV, 2020 Tex. App. LEXIS 3125, at *9 (Tex. App.—Amarillo April 14, 2020, no pet.) (citing Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005)). In reviewing a summary judgment, a fact is conclusively established if reasonable people could not differ as to the conclusions to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). In our review we take as true all summary judgment evidence favorable to the nonmovant, resolving any doubts and indulging every reasonable inference in favor of the nonmovant. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
ISSUE ONE—ENTITLEMENT TO RELIEF UNDER THE TUDJA
In her first issue, Appellant contends the trial court erred in granting the motion for summary judgment filed by Appellees because "Appellees are not entitled to a declaratory judgment" under the TUDJA. In reaching this conclusion, Appellant focuses on a pending lawsuit she filed in the State of Maine requesting damages and other relief concerning, among other things, misapplication of assets in the Marital Trust. She argues that because the declaratory relief sought in this proceeding will not settle the dispute between the parties or resolve all of the issues pending in the Maine lawsuit, such relief cannot be granted.
Appellant relies on Town of Annetta South v. Seadrift Dev., L.P., 446 S.W.3d 823, 832 (Tex. App.—Fort Worth 2014, pet. denied), which states that the TUDJA is "intended to provide a remedy that is simpler and less harsh than coercive relief, if it appears that a declaration might terminate the potential controversy." Without citation to any authority, she then summarily concludes that the trial court in this matter "did not have jurisdiction to grant the relief requested . . ." presumably because the declaration requested in this case would not terminate every controversy existing between the parties. If that were a correct statement of the law, given the history of the parties to this dispute, no court anywhere would ever have jurisdiction to grant a declaratory judgment regarding the dispute between these parties. Since Appellant has failed to provide us with either substantive argument regarding her position that the trial court lacked jurisdiction to grant declaratory relief, nor citation to legal authority supporting that argument, she has inadequately briefed this issue. Therefore, Appellant's first issue is waived. See TEX. R. APP. P. 38.1(i) (West 2016) (providing that an appellant has the burden to provide a "clear and concise argument for the contentions made," supported by appropriate citation to legal authority and to the record). Nevertheless, we also say the following.
Appellant's argument disregards the plain language of section 37.003 of the TUDJA which provides: "[a] court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." TEX. CIV. PRAC. & REM. CODE ANN. § 37.003(a) (West 2020) (Emphasis added). While Appellant argues that a declaratory judgment must terminate any and all controversies between the parties, such a conclusion is not required under the language of the TUDJA, nor has it been interpreted in such a way by any known case law, including Annetta South.
Under the TUDJA, the purpose of a declaratory judgment is "to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations" of the parties. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.002(b) (West 2020). Because courts are prohibited from issuing advisory opinions, Tex. Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993), it has been said that a declaratory judgment "is appropriate only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought." Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (citation omitted). This does not mean, however, that the declaratory judgment must resolve every controversy existing between the parties. So long as there is a justiciable controversy existing between the parties and the declaratory judgment will resolve that dispute, a declaratory judgment may be sought with respect to that dispute.
That being said, a question of jurisdiction does arise "if there is pending, at the time of the commencement of the declaratory action, another action or proceeding to which the same persons are parties, in which are involved and may be adjudicated the same identical issues that are involved in the declaratory action." Joseph v. Elliott, 345 S.W.2d 297, 299 (Tex. Civ. App.—Austin 1961, no writ). See Tex. Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex. 1970); In re BP Oil Supply Co., 317 S.W.3d 915, 921 (Tex. App.—Houston [14th Dist.] 2010, no pet.). However, the "mere pendency of another action between the same parties, without more, is no basis for refusing declaratory relief." Joseph, 345 S.W.2d at 300. A declaratory judgment may not be refused because of the pendency of another suit if the controversy will not necessarily be determined in that suit. Id. Where speedy relief is "necessary to the preservation of rights which otherwise may be impaired or lost, courts will entertain an action for a declaratory judgment as to questions which are determinable in a pending action or proceeding between the same parties." Id.
While we agree with Appellant that the suit in Maine involves the same parties and the same real property at issue here, the dispute between the parties here, i.e., the authority of a majority of cotrustees to act on behalf of the Marital Trust, will not be determined in the Maine suit. Therefore, we agree with Appellees that the trial court had the authority to grant declaratory relief in this matter. Accordingly, we overrule Appellant's first issue.
ISSUE TWO—JURISDICTION TO GRANT DECLARATORY RELIEF
Via her second issue, Appellant asserts the trial court erred in granting Appellees' Motion for Summary Judgment because the trial court lacked jurisdiction and Appellees lacked standing for declaratory relief under the TUDJA. Under this issue, Appellant contends this suit is a probate matter and thus, jurisdiction lies with the probate court.
Appellees contend this is a trust litigation matter and jurisdiction is expressly and specifically conferred to a district court by the Texas Property Code. See TEX. PROP. CODE ANN. § 115.001(a) (West Supp. 2019). That section provides as follows:
(a) Except as provided by Subsection (d) of this section, a district court has original and exclusive jurisdiction over all proceedings by or against a trustee and all proceedings concerning trusts, including proceedings to:
(1) construe a trust instrument;
(2) determine the law applicable to a trust instrument;
(3) appoint or remove a trustee;
(4) determine the powers, responsibilities, duties, and liability of a trustee;
(5) ascertain beneficiaries;
(6) make determinations of fact affecting the administration, distribution, or duration of a trust;
(7) determine a question arising in the administration or distribution of a trust;
(8) relieve a trustee from any or all of the duties, limitations, and restrictions otherwise existing under the terms of the trust instrument or of this subtitle;
(9) require an accounting by a trustee, review trustee fees, and settle interim or final accounts; and
(10) surcharge a trustee.
Id. at § 115.001(a), (a-1).
(a-1) The list of proceedings described by Subsection (a) over which a district court has exclusive and original jurisdiction is not exhaustive. A district court has exclusive and original jurisdiction over a proceeding by or against a trustee or a proceeding concerning a trust under Subsection (a) whether or not the proceeding is listed in Subsection (a).
Subsection (d) of section 115.001 states as follows:
The jurisdiction of the district court is exclusive except for jurisdiction conferred by law on:Id. at § 115.001(d).
(1) a statutory probate court;
(2) a court that creates a trust under Subchapter B, Chapter 1301, Estates Code;
(3) a court that creates a trust under Section 142.005;
(4) a justice court under Chapter 27, Government Code; or
(5) a county court at law.
The action before us is a suit by three cotrustees, Appellees, against another cotrustee, Appellant, regarding real property held by the Marital Trust. Under the language of the statute, the district court clearly has jurisdiction over this matter. Subsection (d) notes simply that the district court has concurrent jurisdiction with other courts in some matters. That does not support Appellant's conclusion that the trial court lacked jurisdiction in this matter.
Appellant also advances another argument as part of her second appellate issue. She contends the trial court "lacks standing" because the grandchildren, as beneficiaries of the Marital Trust, are necessary parties that must be joined in the lawsuit.
Standing is a matter pertaining to the capacity of the parties involved in a lawsuit. A party must have both standing to sue and capacity to sue. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005) (citation omitted). Standing is a component of subject-matter jurisdiction and a plaintiff is required to have standing to maintain a suit. Tex. Ass'n of Bus., 852 S.W.2d at 445-47. A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority. Lovato, 171 S.W.3d at 848-49. Thus, based on the definitions provided in our case law, only a party can have standing; a court cannot.
Moreover, necessary parties to an action like the one before us include (1) a beneficiary of the trust on whose act or obligation the action is predicated; (2) a beneficiary of the trust designated by name, other than a beneficiary whose interest has been distributed, extinguished, terminated, or paid; (3) a person who is actually receiving distributions from the trust estate at the time the action is filed; and (4) the trustee, if a trustee is serving at the time the action is filed. See TEX. PROP. CODE ANN. § 115.011 (West Supp. 2019). There is nothing in the record showing that any of the beneficiary grandchildren satisfy the criteria set forth above. As such, those parties are not necessary and are not required to be joined in this matter. Accordingly, we resolve Appellant's second issue against her.
ISSUE THREE—REMOVAL OF TRUSTEE
Through her third issue, Appellant argues the trial court erred in granting Appellees' Motion for Summary Judgment because the removal of a trustee requires evidence and Appellees did not present sufficient evidence for removal. Appellees agree there was no evidence to support removal of Appellant as a cotrustee of the Marital Trust; however, they respond to this argument by pointing out that this suit does not involve the removal of a cotrustee. We agree.
The underlying objective of this suit was to keep Appellant from interfering with the management of certain assets, to-wit: three parcels of real property, held in the Marital Trust. It was never the objective of this litigation to remove Appellant as a cotrustee and she remains a cotrustee of the Martial Trust, with the full power and authority of a cotrustee as it relates to this particular trust estate. As such, we overrule Appellant's third issue.
ISSUE FOUR—EXISTENCE OF QUESTIONS OF FACT PRECLUDING SUMMARY JUDGMENT
By her fourth issue, Appellant complains that the trial court erred in granting Appellee's Motion for Summary Judgment because there were material questions of fact precluding summary judgment. Appellees frame Appellant's argument as one stating that the particulars of a specific sale must be shown before the relief requested could be granted by the trial court. Because Appellees' petition and motion for summary judgment do not provide any specific facts that would allow the trial court to determine whether a sale of trust property was authorized, Appellant contends summary judgment was improper. We disagree.
First, Appellant cites no authority for her position other than the terms of the trust instrument which she argues place restrictions on the sale of trust assets. Furthermore, the declaratory judgment granted does not specifically authorize the sale of any property. It merely declares that under applicable law and the terms of the Marital Trust, if Appellees, being a majority of the cotrustees, decide to sell a piece of real property held in the Marital Trust, then they may do so without her agreement. Appellees also note that if an actual sale violated the terms of the trust instrument or otherwise breached a fiduciary duty, Appellant would have a claim at that time. According to Appellees, the underlying proceeding is merely a declaration of their right to act without the agreement of Appellant in order to give assurance to any title insurance underwriters or potential buyer that she will not, as she has in the past, be able to interfere in the sale of that real property. Because the details of a future sale are not fact issues precluding the particular declaratory judgment sought, Appellant has not raised a genuine issue of material fact precluding summary judgment in this matter. Appellant's fourth issue is overruled.
ISSUE FIVE—ADVISORY OPINION
Through her final issue, Appellant contends the trial court erred in granting Appellees' Motion for Summary Judgment because the summary judgment entered in this case is an advisory opinion and Texas courts are prohibited from issuing advisory opinions. Appellees respond by simply arguing the summary judgment entered by the trial court in this case was not an advisory opinion. Again, we agree.
Under Article II, section 1 of the Texas Constitution, courts of this state do not have jurisdiction to issue advisory opinions. Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam). See Heckman v. Williamson County, 369 S.W.3d 137, 147 (Tex. 2012) (providing "[t]he Texas Constitution—the source of the requirements of justiciability in Texas—bars our courts from rendering advisory opinions and limits access to the courts to those individuals who have suffered an actual, concrete injury"). An advisory opinion determines an abstract question of law without binding the parties, and a judgment based on an advisory opinion addresses only a hypothetical injury instead of remedying an actual or imminent harm. Devon Energy Prod. Co., L.P. v. KCS Res., LLC, 450 S.W.3d 203, 210 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (citation omitted).
In the underlying matter now before us, Appellees sued Appellant and requested declaratory relief pertaining to the authority of a majority of cotrustees to act on behalf of the trust as it related to sale of certain real property held in the Marital Trust. Appellees maintain that, without a declaratory judgment to prohibit Appellant from interfering in a sale, they would be unable to sell assets belonging to the trust in accordance with their rights under the trust agreement. Appellees further maintain that because of Appellant's history, there is reason to believe she will attempt to stop or undo any transaction. Thus, according to Appellees, the matter presented a justiciable controversy in which the trial court rendered a declaratory judgment.
Appellees contend the declaratory relief sought is not some abstract question of law, but is, instead, a justiciable controversy existing between the parties. Appellees contend that, in situations like the present controversy, where multiple trustees serve concurrently, cotrustees may act by majority decision. Appellees' position is not contrary to either the terms of the Marital Trust or applicable statutory authority. See TEX. PROPERTY CODE ANN. § 113.085(a) (West 2014) (providing that in situations involving multiple trustees, "[c]otrustees may act by majority decision"). Reviewing the trust and the applicable statutes, the trial court's judgment did not determine an abstract question of law, nor did it address a hypothetical injury only. Id. When this declaratory judgment becomes final, Appellees will be able to move forward with a sale of real property held in the Marital Trust, with the assurance that the agreement of all four cotrustees is not needed, so long as a majority of the cotrustees are in agreement. Under the facts of this case, we see nothing advisory about the trial court's declaratory judgment. Accordingly, we resolve Appellant's final issue against her.
CONCLUSION
Having overruled each of Appellant's issues, we find she has not raised any genuine issues of material fact precluding summary judgment. Therefore, we affirm the judgment of the trial court.
Patrick A. Pirtle
Justice