Opinion
NO. 14-18-01018-CV
11-10-2020
Deloris Darlene MOODY and Moody National Bank, as Trustee of the W.L. Moody, IV Living Trust and as Independent Executor of the Estate of W.L. Moody, IV, Deceased, Appellants v. Linda MOODY, Appellee
John S. Adcock, Russell S. Post, Charles Eugene Baumann, Houston, TX, Joseph Cavanah, Frederick Black, Galveston, TX, Angela Olalde, League City, TX, for Appellants. Sarah Elizabeth Patel Pacheco, Joshua Flores, Lynn Kuriger Stanton, Houston, TX, for Appellee.
John S. Adcock, Russell S. Post, Charles Eugene Baumann, Houston, TX, Joseph Cavanah, Frederick Black, Galveston, TX, Angela Olalde, League City, TX, for Appellants.
Sarah Elizabeth Patel Pacheco, Joshua Flores, Lynn Kuriger Stanton, Houston, TX, for Appellee.
Panel consists of Justices Bourliot, Hassan, and Poissant.
Margaret "Meg" Poissant, Justice This is an appeal from a probate proceeding in which the jury verdict in favor of appellee Linda Moody found the decedent lacked the requisite capacity to execute a marital property agreement, the surviving spouse breached a fiduciary duty to the decedent in connection with making the marital property agreement and committed fraud regarding her spouse's separate property rights, and the marital property agreement was unenforceable. The jury awarded appellee compensatory and exemplary damages. The trial judge awarded the attorneys' fees and expenses of appellee and appellants paid from the decedent's trust.
In separate appeals, appellants challenge the trial court's final judgment claiming, in addition to other issues, that appellee lacks standing to pursue this suit. Because we agree appellee lacks standing, we reverse the trial court's judgment and render judgment dismissing the suit for want of jurisdiction.
Because the parties are familiar with the facts of the case, we set forth only those facts necessary to final disposition of the appeal. See Tex. R. App. P. 47.1.
William Lewis Moody, IV ("William") died on July 14, 2014, at age 89. He left a will dated April 16, 2014, which appointed Moody National Bank as the independent executor of his estate and as trustee to his living trust ("MNB" or "Trustee"). On August 28, 2014, MNB opened an independent administration of William's estate and admitted William's will to probate.
The W.L. Moody, IV Living Trust was created on April 16, 2014, to provide distributions to William during his lifetime and to provide for the disposition of the assets in, or passing to, the trust upon his death. The trust designated William as trustee and MNB as the successor trustee. References to "Trustee" are to MNB in its role as Trustee and as executor.
William was survived by his wife of over fifty years, appellant Deloris Darlene Moody ("Darlene"); his four adult children—his son with Darlene, William L. Moody, V ("Billy"), and three daughters from a prior marriage, appellee Linda Moody ("Linda"), Elizabeth Moody ("Elizabeth"), and Janice Moody ("Janice"). No one contested William's will or trust.
The will leaves William's estate almost entirely to the trust; any community property interest in a retirement plan is left to Darlene, and the rest of William's estate to the trust. Under the trust, during William's lifetime, income and principal is distributed to William at his direction. Upon William's death, the Trustee must pay all debts and expenses of his estate, and then distribute Darlene's property to her. William's personal effects are to be divided according to specific bequest or else equally between Darlene and William's children. Property remaining in the trust after William's death, including any property transferred to the trust through the estate, is divided into a Marital Trust (which is further divided into exempt and nonexempt parts) and a Bypass Trust. Under these trusts, MNB pays net income at least quarterly to Darlene, and the trusts terminate upon Darlene's death. It is not until Darlene's death that Linda receives any distribution other than personal effects.
Two years after William's will was admitted to probate, on November 9, 2016, Linda filed this suit as an ancillary matter to the estate administration. She sought a temporary injunction and declaration that the marital property agreement ("MPA"), which William signed on April 16, 2014, is void and unenforceable, and that William lacked the requisite capacity to execute the MPA. Prior to this suit, no one had challenged William's capacity to enter into any agreement. By challenging the MPA, Linda would leave the trust and will in place, and argue that the bulk of the marital estate (i.e. , a Ranch valued in 2014 at approximately $45 million) should flow through the trust to herself and her two sisters.
William executed three documents on April 16, 2014: a will, a living trust, and a marital property agreement. Linda challenges only William's capacity to execute the MPA.
William and Darlene's son, Billy, died prior to Linda filing suit in 2016. Billy's death materially altered the consequences of the 2014 estate plan. Billy and Valerie, Darlene's daughter from a previous marriage, were expected to share in Darlene's estate when Darlene died; thereby accomplishing the equal treatment of all five children. A disproportionate share of William and Darlene's community property had been designated to flow to Billy and Valerie through Darlene's Living Trust, equalizing their total assets with Janice, Linda and Elizabeth once the Moody trusts were taken into account. But because Billy died before Darlene, his expected share of Darlene's estate (approximately $7.3 million under the plan) will be inherited by Valerie through Darlene's Living Trust. By contrast, Billy's $8.6 million share of the Moody trusts will be divided among Linda and her sisters.
On February 2, 2018, Linda amended her petition, adding claims for breach of fiduciary duty and fraud against Darlene. The case was tried to a jury, which on May 31, 2018, returned a verdict in favor of Linda. The jury found William lacked sufficient mental capacity to sign the MPA, Darlene breached a fiduciary duty to William in connection with making the MPA, Darlene committed fraud regarding William's separate property rights, and the MPA was unenforceable. The jury awarded the Estate of W.L. Moody, IV, $34,768.00 in actual damages and $1.00 in exemplary damages against Darlene. Linda and Darlene entered into a Rule 11 Agreement, agreeing to try all issues regarding fees and expenses to the court, not the jury, and capping their attorney fee requests at $750,000.00 per party, seeking any recovery awarded to either party from the W.L. Moody, IV Living Trust, rather than each other. Neither MNB nor the remaining trustee beneficiaries signed that agreement.
On November 19, 2018, the trial court entered a Final Judgment on the jury's findings. The court awarded fees, costs, and expenses of $633,817.94 to Linda, and $750,000.00 to Darlene, and made each award payable from the trust. The court also awarded costs and conditional fees on appeal. This appeal followed.
II. ISSUES PRESENTED
MNB appeals the final judgment, asserting Linda lacks standing to challenge the marital property agreement; the marital property agreement is valid, and the evidence and "course of trial" do not support the jury's finding that the marital property agreement is unenforceable; and the trial court erred in its award of attorneys' fees and costs, and erred by awarding payment from the trust.
Darlene appeals the final judgment asserting Linda lacks legal authority to assert the claims in this case; trial error "poisoned" the statutory enforceability theory; trial error "poisoned" the mental capacity theory; and jury charge error "poisoned" the tort theories.
III. ANALYSIS
Before reaching the merits of this appeal, we must address issues of standing raised by both appellants. See Tex. R. App. P. 47.1. Appellants each argue that Linda lacks standing and/or capacity to bring her claims.
In its first issue, MNB contends that Linda has not established a basis for her standing to set aside the MPA for lack of capacity. MNB contends she lacks standing under the Family Code, the common law, and the Estates Code, as she is not challenging William's will or trust.
Similarly, Darlene asserts in her first issue Linda lacks authority to challenge the claims in this case. Specifically, Darlene maintains Linda lacks authority to assert the tort claims because Linda lacks standing to sue for torts against William and Linda lacks capacity to sue on behalf of William's estate. Linda also contends that Linda lacks authority to challenge the MPA and the enforceability of the MPA.
A. STANDING
"[S]tanding, as a component of subject matter jurisdiction, cannot be waived and may be raised for the first time on appeal by the parties or by the court." Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 445–46 (Tex. 1993). "Standing" is a party's justiciable interest in the suit. Nootsie, Ltd. v. Williamson Cty. Appraisal Dist. , 925 S.W.2d 659, 661–62 (Tex. 1996). In Texas, the standing doctrine requires that there be (1) "a real controversy between the parties" that (2) "will be actually determined by the judicial declaration sought." Austin Nursing Ctr., Inc. v. Lovato , 171 S.W.3d 845, 849 (Tex. 2005). "In other words, the plaintiff's alleged injury must be ‘concrete, particularized, fairly traceable to the defendant's allegedly unlawful conduct, and likely to be redressed by the requested relief.’ " Gutierrez v. Stewart Title Co. , 550 S.W.3d 304, 313 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (quoting AVCO Corp. v. Interstate Sw., Ltd. , 251 S.W.3d 632, 649 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) ). Standing focuses on who may bring an action and is determined at the time suit is filed in the trial court. M.D. Anderson Cancer Ctr. v. Novak , 52 S.W.3d 704, 708 (Tex. 2001) ; Tex. Ass'n of Bus. , 852 S.W.2d at 446 n. 9.
The question of whether Linda has a sufficient interest in the claims asserted to confer standing requires us to review the allegations in Linda's amended petition. See Gutierrez , 550 S.W.3d at 313 (remainderman of life estates granted in decedent's will had standing to challenge conveyances of testator's properties); see also Jansen v. Fitzpatrick , 14 S.W.3d 426, 431 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ("[A]s a threshold matter, we must determine whether a lack of jurisdiction is apparent from the face of the plaintiffs/appellants' pleading."); Trojacek v. Estate of Kveton , No. 14-07-00911-CV, 2009 WL 909591, at *3 (Tex. App.—Houston [14th Dist.] Apr. 7, 2009, no pet.) (mem. op.) ("In the context of this case, then, we must determine whether the pleadings and evidence indicate that Trojacek has a justiciable interest in the real estate that is the subject of her issues on appeal.").
B. STANDARD OF REVIEW AND APPLICABLE LAW
"Standing is a constitutional prerequisite to suit." Heckman v. Williamson Cty. , 369 S.W.3d 137, 150 (Tex. 2012). A court lacks jurisdiction over a claim made by a plaintiff who lacks standing to assert it. Id. "Whether a trial court has subject-matter jurisdiction is a question of law subject to de novo review." Tex. Nat. Res. Conservation Comm'n v. IT-Davy , 74 S.W.3d 849, 855 (Tex. 2002) ; see In re H.S. , 550 S.W.3d 151, 155 (Tex. 2018) ; Tex. Dep't of Transp. v. A.P.I. & Supply, LLC , 397 S.W.3d 162, 167 (Tex. 2013). When standing is reviewed for the first time on appeal, the appellate court "construes the pleadings in favor of the plaintiff and, if necessary, reviews the record for evidence supporting jurisdiction." RSL Funding, LLC v. Pippins , 499 S.W.3d 423, 429 (Tex. 2016) (per curiam) ; see also Rodarte v. Investeco Grp., L.L.C. , 299 S.W.3d 400, 406 (Tex. App.—Houston [14th Dist.] 2009, no pet.) ; Ford Motor Co. v. Cammack , 999 S.W.2d 1, 10 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (supp. op. on reh'g). If an appellate court determines that the trial court lacks subject-matter jurisdiction, it "must reverse the trial court's judgment and dismiss the case." Merit Mgmt. Partners I, L.P. v. Noelke , 266 S.W.3d 637, 643 (Tex. App.—Austin 2008, no pet.) (citing City of Garland v. Louton , 691 S.W.2d 603, 605 (Tex. 1985) ).
Standing is not to be confused with capacity. " ‘A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy.’ " Lovato , 171 S.W.3d at 848–49 (quoting Nootsie, Ltd. , 925 S.W.2d at 661 (emphasis in the original)). A plaintiff may have capacity even if it has no legally cognizable interest in the outcome of the case. AVCO Corp. , 251 S.W.3d at 649. Also, unlike standing, a challenge for capacity must be preserved in the trial court by filing a verified denial; otherwise, it is waived on appeal. See Lovato , 171 S.W.3d at 849 (citing Tex. R. Civ. P. 93(1)-(2) ; Sixth RMA Partners v. Sibley , 111 S.W.3d 46, 56 (Tex. 2003) ). A plaintiff must have both standing and capacity to bring a lawsuit. Id. (citing Coastal Liquids Transp., L.P. v. Harris Cty. Appraisal Dist. , 46 S.W.3d 880, 884 (Tex. 2001) ).
C. LINDA LACKS STANDING TO BRING DECLARATORY JUDGMENT ACT CLAIM
Linda sued for declaratory judgment that William lacked the requisite capacity to execute the MPA. MNB and Darlene argue Linda lacks standing to seek a declaratory judgment.
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). The Uniform Declaratory Judgments Act ("Declaratory Judgment Act") is "merely a procedural device for deciding cases already within a court's jurisdiction rather than a legislative enlargement of a court's power, permitting the rendition of advisory opinions." Tex. Ass'n of Bus. , 852 S.W.2d at 444 ; see Tex. Civ. Prac. & Rem. Code §§ 37.001 -.011. Applying these principles, appellants argue neither Linda's declaratory relief claim nor her injunctive relief claim (which is based on the declaratory relief Linda seeks) can provide a basis for the suit. See Brown v. Todd , 53 S.W.3d 297, 305 (Tex.2001).
In an effort to demonstrate that the trial court had subject matter jurisdiction over her claims, Linda maintains in her First Amended Petition for Declaratory Judgment "she properly pled the statutory grounds, specifically relying on Texas Family Code sections 4.203 and 4.205. Linda asserts the clear statutory language of section 4.205(c) permits her, as "an heir of the spouse," to present proof that the MPA is unenforceable. Linda next claims that the "appellants did not preserve their complaint that Linda lacked standing." Linda contends that appellants expressly and tacitly acknowledged her standing under section 4.205 and, according to Linda, they cannot now, for the first time on appeal, raise the issue that she lacked standing. Additionally, Linda argues section 4.205 does not preempt her common law causes of action. Finally, Linda maintains that as William's daughter, as a beneficiary of the estate and a beneficiary of the trust, she has standing to challenge the MPA. As set forth below, Linda's reliance on statutory authority does not give her standing to contest the MPA.
Linda does not argue standing to challenge the MPA as a party, as she was not a party to the MPA.
D. LINDA LACKS STANDING TO CHALLENGE THE MPA AS A CONVERSION AGREEMENT
A conversion agreement works to change the characterization of a spouse's separate property into community property. See Tex. Fam. Code § 4.201. The Texas Legislature enacted section 4.202 of the Family Code in 1999 to permit spouses to convert all or part of one spouse's separate property into community property. See Tex. Fam. Code Ann. Title 1, Chapter 4, Subchapter C, § 4.201 et. seq. , added by Acts 1999, 76th Leg., R.S., ch. 692, § 3, eff. Jan. 1, 2000). Section 4.203 specifies the formalities required in a conversion agreement, and section 4.205 addresses the hurdles for enforcing marital agreements that convert a spouse's separate property. Id. at §§ 4.203, 4.205.
Section 4.203 of the Family Code has no bearing on Linda's contention that she has standing to bring her claims. Rather, this statute sets forth the formalities of a conversion agreement. See Tex. Fam. Code §§ 4.203.
1. STANDING MAY BE RAISED FOR THE FIRST TIME ON APPEAL
To the extent Linda asserts that appellants cannot complain for the first on appeal that she lacks standing, her assertion is not supported by authority, and is contrary to the law.
Standing, as a component of subject matter jurisdiction, is a constitutional prerequisite to the filing of suit, the absence of which may be raised for the first time on appeal or sua sponte by this Court. See, e.g., Heckman , 369 S.W.3d at 150 ; Tex. Ass'n of Bus. , 852 S.W.2d at 445–46 ; Phillips v. Dow Chem. Co. , 186 S.W.3d 121, 129 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ("[B]ecause lack of standing defeats subject-matter jurisdiction and cannot be waived, a challenge to standing may properly be raised at any time and may even be raised for the first time on appeal."). Thus, Linda's lack of preservation argument as to her standing to challenge the MPA fails.
In her verified second amended answer, Darlene asserts Linda lacks standing and capacity. MNB filed a general denial.
2. SECTION 4.205(c) OF THE FAMILY CODE
a. THE STATUTE IS SILENT AS TO STANDING
The issue of whether Section 4.205 of the Family Code confers standing upon an heir to contest the validity or enforceability of a marital property agreement is a matter of first impression. Section 4.205(c) provides:
If a proceeding regarding enforcement of an agreement under this subchapter occurs after the death of the spouse against whom enforcement is sought, the
proof required by Subsection (a) may be made by an heir of the spouse or the personal representative of the estate of that spouse.
Tex. Fam. Code § 4.205(c) (emphasis added). "Heir" is not defined in the Family Code.
b. LINDA IS NOT A DEVISEE UNDER WILLIAM'S WILL
The Estates Code, however, defines "heir" as one entitled to part of an estate if the decedent dies intestate. Tex. Estates Code § 22.015. Assuming the Estates Code definition of heir applies to Section 4.205(c), there is no "heir" in this case within the meaning of the Estates Code definition because William did not die intestate; William died leaving a will. William's will is uncontested. Linda is not a devisee under William's will. Rather, Linda is a beneficiary of the trust. Linda has no property right in William's estate because his will bequeathed all of his estate to the trust, except for any interest in a retirement plan, which was left to Darlene.
No state courts have applied the Estates Code definition of heir to section 4.205 ; however, a federal court has applied it to the Texas Survival Statute. See Turk v. Mangum , 268 F. Supp.3d 928, 935 (S.D. Tex. 2017).
Even assuming, arguendo , that Linda is an "heir" as that term is defined, Linda's contention that, as an heir, she has standing under Section 4.205(c) to challenge the MPA is flawed. Section 4.205(c) enables an heir or a personal representative to provide the proof required if a proceeding occurs after death of the spouse against whom enforcement is sought. See Tex. Fam. Code § 4.205(c). It does not provide that heirs have standing to challenge conversion agreements. The statute's disjunctive formulation simply names two categories of litigants who might be entitled to assert a claim. It does not allow competing claims.
The Legislature enacted this change to the statute with complete knowledge of existing law. We presume the Legislature chose its words intentionally. See In re M.N. , 262 S.W.3d 799, 802 (Tex. 2008) ; Fitzgerald v. Advanced Spine Fixation Sys., Inc. , 996 S.W.2d 864, 866 (Tex. 1999) (noting that, when interpreting statute, we start with plain language because "it is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent"); Aubrey v. Aubrey , 523 S.W.3d 299, 311 (Tex. App.—Dallas 2017, no pet) ("When standing has been statutorily conferred, the statute itself serves as the proper framework for standing analysis."). In other sections of the Family Code, standing is specifically mentioned. See Tex. Fam. Code § 102.003 (standing to sue in a suit affecting parent-child relationship); § 154.303 (standing to sue for support of disabled child); § 156.002 (who can sue to modify conservatorship). If the Legislature intended to confer standing to heirs to challenge the enforceability of a conversion agreement between spouses after the death of a spouse, presumably that language would be present in section 4.205, as it is in other sections of the Family Code. However, section 4.205(c) is silent on the issue of standing. Linda offers no authority to the contrary.
Linda interprets the enforcement provision of section 4.205 to confer standing where none exists. As such, we reject her reading of the statutory provision. We conclude that section 4.205(c) of the Family Code does not give Linda standing to challenge the validity of the MPA in this case. E. LINDA LACKS STANDING TO CHALLENGE THE MPA AS A BENEFICIARY OF WILLIAM'S TRUST
Linda maintains that, in addition to standing pursuant to section 4.205(c) of the Family Code, she has standing to challenge the MPA based on the Estates Code.
1. ESTATES CODE DOES NOT CONFER STANDING TO LINDA
Linda first maintains the term "estate" is defined in the Estates Code to include "property." See Tex. Estates Code § 22.012. Next, Linda asserts an "interested person" in the Estates Code includes "an heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate being administered." See id. § 22.018. Linda further cites to the Estates Code definition of an "heir." See id. at § 22.015. Linda argues that it is undisputed she is an heir and a beneficiary; thus, according to Linda, in addition to her status as an heir, she also has a property right in William's estate because she is a beneficiary of (1) a portion of the household furnishings and personal effects and (2) the trust, which is the sole beneficiary of William's residuary estate under his will.
As set forth above, there is no "heir" in this case within the meaning of the Estates Code because William died leaving a will; his will is uncontested; Linda is not a devisee under the will; and Linda has no property right in William's estate because his will bequeathed all of his estate to the trust. Bootstrapping together several statutory definitions, without more, does not give her standing to bring claims either independently, or on behalf of the estate or trust, to challenge the MPA.
Linda cites In re O'Quinn in support of her contention that the Estates Code allows her to challenge the MPA. See 355 S.W.3d 857 (Tex. App.—Houston [1st Dist.] 2011, no pet). In O'Quinn , the executor of an estate admitted the decedent's will to probate. In re O'Quinn , 355 S.W.3d at 860. The John M. O'Quinn Foundation intervened in the ongoing probate proceeding. Id. Thereafter, the executor, the O'Quinn Foundation (the sole beneficiary under the will), and decedent's girlfriend, Darla, of many years, each filed petitions seeking declarations, including whether decedent was married, either formally or informally, at the time of his death and whether property rightfully belonged to the estate and passed to the O'Quinn Foundation under the decedent's will, or to Darla. Id. The probate court consolidated Darla's suit in state district court with the proceedings in probate court. Id. at 861.
Darla asserted by verified denial that the O'Quinn Foundation lacked capacity to intervene because only the executor has the right to seek declaratory relief regarding the alleged marriage and alleged gifts made to Darla by the decedent. In re O'Quinn , 355 S.W.3d at 861. Darla also asserted that the O'Quinn Foundation lacked standing to pursue its claims because it did not have a justiciable interest in the outcome of the litigation. Id. Darla filed a plea to the jurisdiction and motion to strike the O'Quinn Foundation's petition in intervention, asserting the trial court lacked subject-matter jurisdiction. Id. The trial court denied Darla's motions, and Darla sought mandamus relief. Id.
The First Court of Appeals denied mandamus relief, determining that, as the sole beneficiary under the decedent's will, the O'Quinn Foundation had a vested interest in property owned by the decedent, subject to possession and administration by the executor, as of the moment of death. See In re O'Quinn , 355 S.W.3d at 864. By contending that she was the decedent's common-law spouse, and thus entitled to a community property interest, and that decedent had made several inter vivos gifts and promises to her, Darla sought to significantly reduce the total amount of assets that were part of the decedent's probate estate. Id. The court concluded that a "real and substantial controversy involving a genuine conflict of tangible interests" existed between the O'Quinn Foundation and Darla and that the dispute was not merely theoretical, hypothetical or contingent; thus, the Foundation had a justiciable interest in the underlying proceeding. Id. at 865. Additionally, the court held that the O'Quinn Foundation, as the devisee under the decedent's will, could permissibly seek declaratory relief under 37.005(3) of the Civil Practice and Remedies Code to determine "any question arising in the administration of the decedent's estate". Id. at 866. As such, the court concluded the trial court did not abuse its discretion in denying Darla's motions challenging its subject matter jurisdiction. Id.
Linda's reliance on this case is misplaced. Unlike the Foundation in O'Quinn , Linda is not a devisee under William's will. Moreover, Linda did not challenge the probate of William's will or the trust. Instead, she only seeks to invalidate the MPA. As such, the holding in O'Quinn does not provide support for Linda's contention that she has standing to challenge the MPA.
2. MNB HAS THE EXCLUSIVE RIGHT TO SUE TO RECOVER PROPERTY AS THE PERSONAL REPRESENTATIVE OF WILLIAM'S ESTATE.
It is well-settled that the personal representative of the estate of a decedent is ordinarily the only person entitled to sue for the recovery of property belonging to the estate. Tex. Estates Code § 351.054(a) ("an executor or administrator may sue to recover property, debts, or damages."); see also Shepherd v. Ledford , 962 S.W.2d 28, 31 (Tex. 1998) ; Frazier v. Wynn , 472 S.W.2d 750, 752 (Tex. 1971) ; Chandler v. Welborn , 156 Tex. 312, 318, 294 S.W.2d 801, 806 (1956) ; Ford Motor Co. v. Cammack , 999 S.W.2d 1, 4 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). Linda does not dispute this general rule. It also is undisputed that MNB is a "personal representative" as the "independent executor" of William's estate. See Tex. Estates Code § 22.031 (definition of "personal representative" includes independent executor of an estate). Absent an exception, MNB has the exclusive right to recover estate property. See Shepherd , 962 S.W.2d at 31 ; Cammack , 999 S.W.2d at 4–5 & n.1.
3. LINDA FAILS TO ESTABLISH AN EXCEPTION PERMITTING HER TO USURP MNB'S ROLE
There are exceptions to this general rule. The first exception is that heirs at law may bring a survival suit on behalf of the estate if they allege and prove that there is no administration pending and that none is necessary. Shepherd , 962 S.W.2d at 31 ; Frazier , 472 S.W.2d at 752 ; Cammack , 999 S.W.2d at 4–5. The exception does not apply in this case because William's estate was still being administered when suit was brought.
In this section, we analyze Linda's ability to challenge the MPA. Although the same analysis applies to Linda's survival claims against Darlene, those claims are discussed in more detail in a separate section below.
The second exception, which Linda relies on, provides that heirs may bring suit when the personal representative cannot, or will not, bring the suit or when the personal representative's interests are antagonistic to those of the estate. See Chandler , 156 Tex. at 318, 294 S.W.2d at 806. Linda, however, did not give notice to MNB before filing suit, and failed to establish that the MNB's interests were antagonistic to the estate. Linda's record citations to occurrences after suit was filed do not establish that MNB could not or would not bring suit. Moreover, Linda did not assert claims against MNB, and fails to cite to any interest of MNB adverse to the estate. See Tex. Estates Code § 351.054 (b).
A judgment in a suit brought by an executor is "conclusive, but may be set aside by any interested person for fraud or collusion on the executor's or administrator's part." Id. at § 351.054(b).
Further, the trust in this case provides that the "Trustee may maintain and defend any claim or controversy by or against the Trust without the joinder or consent of any beneficiary." In order for beneficiaries to step into the trustee's shoes and sue on its behalf, the beneficiaries must demonstrate more than that a trustee declined to file suit; rather, they must show that the trustee's refusal to sue was wrongful. In re XTO Energy, Inc. , 471 S.W.3d 126, 131 (Tex. App.—Dallas 2015, no pet.).
Linda did not bring claims against MNB and cites no interest of MNB adverse to the estate. Linda's disagreement with MNB's assessment of William's capacity to execute the MPA does not establish that MNB's actions were antagonistic to the estate or wrongful. See In re XTO Energy, Inc. , 471 S.W.3d at 132. To allow otherwise would constitute a substitution of judgment that undermines the trustee's decision to sue or not sue. Id. ; see also Interfirst Bank-Houston, N.A. v. Quintana Petroleum Corp. , 699 S.W.2d 864, 874 (Tex. App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.) (concluding beneficiary of trust lacked standing to sue an estate, as "[i]t is the right and responsibility of the testamentary trustee to assure that all property willed into trust is properly conveyed by the executors of the settlor's estate").
Linda did not attempt to plead or prove that she should be allowed to proceed because MNB's failure to do so constitutes fraud, misconduct, or abuse of discretion. See In re XTO Energy, Inc. , 471 S.W.3d at 132. In fact, Linda has not lodged any claims against MNB. Because neither exception that Linda relies on applies, Linda has failed to establish the requisite jurisdictional facts to invoke an exception to the general rule that only personal representatives of the decedent's estate have standing and/or capacity to recover estate property.
Finally, we reject Linda's interpretation as it would allow heirs, as contingent trust beneficiaries, to sue despite a lack of standing. See, e.g., Moon v. Lesikar , 230 S.W.3d 800, 802–06 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (contingent beneficiary of family trust "lacked standing to complain about the [trust's sale of stock] because she had no interest in it at the time of the sale."); Davis v. Davis , 734 S.W.2d 707, 709–10 (Tex. App.—Houston [1st Dist.] 1987, writ ref'd n.r.e.) ("appellant does not have standing to sue based on his claim that he is a potential beneficiary of the trust assets").
In sum, section 4.205 of the Family Code does not change the rules regarding heir and beneficiary standing. Instead, it corresponds with them as it refers to proof from either an heir or a personal representative. See Tex. Fam. Code § 4.205(c) (proof required for enforcement "may be made by an heir of the spouse or the personal representative of the estate of that spouse"). Linda seeks, in essence, to change the wording of the statute to allow an heir and a personal representative to sue to invalidate a marital property agreement. Linda provides no cases to support her interpretation of section 4.205(c).
Linda's argument is strained because her interpretation would allow any heir to challenge a marital property agreement even if the executor does not, and even if the heir is not a devisee under the will.
We reject Linda's argument and hold that she has not established any basis for her standing and/or capacity to challenge the MPA. Pike v. Tex. EMC Mgmt., LLC , No. 17-0557, 610 S.W.3d 763, 775 (Tex. June 19, 2020) ("Both capacity and standing are necessary to bring a lawsuit.").
F. LINDA LACKS STANDING TO CHALLENGE THE MPA AS A PARTITION AGREEMENT
A partition agreement works to change the characterization of part or all of community property of both spouses into the separate property of one spouse.
Here, the MPA contains elements of both partition and conversion agreements. As an initial matter, there is no corollary to Section 4.205(c) for partition agreements. See Tex. Fam. Code §§ 4.101 –.106. Linda has failed to assert any argument or provide any authority for her standing to challenge the portion of the MPA that contains the partition agreement. Therefore, Linda has waived any argument in this regard due to inadequate briefing. See Tex. R. App. P. 38.1 ; San Saba Energy, L.P. v. Crawford , 171 S.W.3d 323, 337 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
In light of our rejection of Linda's standing to challenge any part of the MPA, we need not address MNB's contention that if this court should find Linda had standing to challenge the conversion agreement in the MPA, then the court should reverse and reinstate the portions of the MPA partitioning community property into separate property.
For the foregoing reasons, we sustain MNB's and Darlene's first issue.
Darlene also asserts in her first issue that Linda lacks authority to assert tort claims, which are addressed separately.
G. LINDA LACKS STANDING TO ASSERT CLAIMS FOR FRAUD AND BREACH OF FIDUCIARY DUTY AGAINST DARLENE
Linda asserts that Section 4.205 of the Family Code does not preempt her common law causes of action against Darlene related to the events and circumstances surrounding the execution of the MPA. In her First Amended Petition for Declaratory Judgment, Linda alleges that Darlene breached a fiduciary duty of good faith and fair dealing to William in connection with creating the MPA. Linda further alleges that Darlene's conduct, which affects William's separate property rights, was fraudulent. Linda asserts these claims on her own behalf and requests relief on behalf of William's estate.
Darlene contends Linda lacks standing and/or capacity to assert these claims. To the extent Linda's amended petition requests relief for these claims on behalf of William's estate, Darlene also maintains Linda lacked capacity to do so.
1. LINDA HAS NO STANDING TO ASSERT SURVIVAL CLAIMS
The tort claims alleged—breach of fiduciary duty and fraud—are survival claims, i.e. , claims that William would have been entitled to assert but for his death. See Lovato , 171 S.W.3d at 850. Because a decedent's survival claim becomes part of his estate at death, it follows that William's estate retains a justiciable interest in the survival action sufficient to confer standing. Id. (citing Landers v. B.F. Goodrich Co. , 369 S.W.2d 33, 35 (Tex. 1963) (noting that a survival action seeks recovery for damages sustained by the decedent and his estate as a result of the [wrongful] injuries.)). "A decedent's estate, however ‘is not a legal entity and may not properly sue or be sued as such.’ " Belt v. Oppenheimer, Blend, Harrison & Tate, Inc. , 192 S.W.3d 780, 786 (Tex. 2006) (quoting Lovato , 171 S.W.3d at 849 ). Rather, certain individuals have the capacity to bring a claim on the estate's behalf. Id.
The supreme court has described a survival claim as one that belongs to the decedent:
[U]nder the Texas Survival Statute], a decedent's action survives his death and may be prosecuted in his behalf. The survival action, as it is sometimes called, is wholly derivative of the decedent's rights. The actionable wrong is that which the decedent suffered before his death. The damages recoverable are those which he himself sustained while he was alive and not any damages claimed independently by the survival action plaintiffs (except that funeral expenses may also be recovered if they were not awarded in a wrongful death action). Any recovery obtained flows to those who would have received it had he obtained it immediately prior to his death—that is, his heirs, legal representatives and estate.
Russell v. Ingersoll–Rand Co. , 841 S.W.2d 343, 345 (Tex. 1992) ; see also Tex. Civ. Prac. & Rem. Code § 71.021(b).
2. LINDA LACKS CAPACITY TO ASSERT SURVIVAL CLAIMS
As set forth above, only a duly qualified and appointed representative of an estate may file suit on the estate's behalf. See Tex. Estates Code § 351.054(a) ; see also Shepherd , 962 S.W.2d at 31 ; Frazier , 472 S.W.2d at 752 (Tex. 1971) ; Chandler , 294 S.W.2d at 806 ; Cammack , 999 S.W.2d at 4. In regard to survivor claims, the supreme court reaffirmed this rule, stating "[g]enerally, ‘only the estate's personal representative has the capacity to bring a survival claim.’ " Belt , 192 S.W.3d at 786 (quoting Lovato , 171 S.W.3d at 850 ). Linda neither disputes this general rule nor does she contest that MNB is a "personal representative" as the "independent executor" of William's estate. See Tex. Estates Code § 22.031. Thus, absent an exception, MNB has the exclusive right to bring a survival claim to recover tort damages. See Shepherd , 962 S.W.2d at 31 ; Cammack , 999 S.W.2d at 4–5 & n.1.
Linda relies on the exception to this general rule for situations "in cases where, there being an administration, it appears that the administrator will not or cannot act, or that his interest is antagonistic to that of the heirs desiring to sue." Chandler , 294 S.W.2d at 806. Under this exception, an heir may maintain a suit to recover property belonging to the estate while the administration is pending. See id.
Linda's assertion that Section 4.205(c) does not preempt her common law claims is not determinative of the issue of standing. In her amended petition, Linda named MNB as a defendant for purposes of the declaratory judgment action. Linda does not allege MNB breached a fiduciary duty or defrauded William in the estate planning process. These tort claims are asserted only against Darlene. Likewise, the jury charge did not include MNB on these theories. Thus, the antagonism exception does not apply here. The other exception involves circumstances where the administrator "will or cannot act." Here, there is no evidence that MNB was not actively fulfilling its duties. To the extent Linda argues that she disagrees with MNB's decision not to assert tort claims against Darlene, this is not enough to confer standing. See In re XTO Energy, Inc. , 471 S.W.3d at 132. To allow otherwise would constitute a substitution of judgment that undermines MNB's decision to sue or not sue. Id. MNB had the power to decide whether to pursue such claims and Linda is not entitled to second-guess the judgment of MNB. While Linda may disagree with MNB's decision, this is insufficient to show that MNB was required to act. Absent any such proof, Linda did not establish standing to bring a survival action on behalf of William's estate and thus, the trial court lacked subject matter jurisdiction.
We conclude Linda has failed to demonstrate any circumstances that would give her standing and/or capacity to bring survival claims against Darlene. Pike , 610 S.W.3d at 774–750.
Darlene's first issue is sustained.
H. REMAINING ISSUES ON APPEAL
Because Linda's lack of standing and/or capacity is dispositive, we do not address the remainder of the issues raised by MNB and Darlene. See Tex. R. App. P. 47.1.
IV. CONCLUSION
Linda lacks standing and/or capacity to pursue her claims. Therefore, the trial court lacked subject matter jurisdiction over her suit. For this reason, we reverse the judgment of the trial court and render judgment dismissing Linda's suit for lack of jurisdiction.