In re WILLA PETERS HUBBERD TESTAMENTARY TRUST.
No. 04-13-00452-CV.
Court of Appeals of Texas, San Antonio.
Feb. 12, 2014.
429 S.W.3d 358
(c) A direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit.
In the fourth issue, Luna argues that the trial court erred in dismissing her case with prejudice. Generally, an order dismissing a proceeding with prejudice is improper when there has not been an adjudication of the merits of the claims. See ETC Katy Pipeline, Ltd. v. FLR Pipeline Corridor No. 1, LLC, 276 S.W.3d 577, 579 (Tex.App.-Waco 2008, no pet.). When a dismissal does not implicate the claims’ merits, the trial court should dismiss the claims without prejudice. Id. Section 161.211 of the Texas Family Code bars Luna‘s lawsuit. Therefore, trial court did not err in dismissing the case with prejudice. We overrule the fourth issue on appeal.
We affirm the trial court‘s judgment.
J.K. Leonard, James M. Parker, Jr., Naman, Howell, Smith & Lee, PLLC, Mark Stanton Smith, Clayton G. Mansker, Heard & Smith, L.L.P., Christopher T. Hodge, Langley & Banack, Inc., Henry J. Amen III, Marcus P. Rogers, Attorney At Law, Rudy A. Garza, Hornberger, Sheehan, Fuller, Beiter, Wittenberg & Garza, William H. Oliver, Pipkin & Oliver, San Antonio, TX, for Appellant.
Sitting: CATHERINE STONE, Chief Justice, MARIALYN BARNARD, Justice, PATRICIA O. ALVAREZ, Justice.
OPINION
Opinion by: CATHERINE STONE, Chief Justice.
This appeal arises from disputes regarding a testamentary trust established by Willa Peters Hubberd. Willa‘s daughter,
BACKGROUND
In 1986, Willa established the Peters Family Trust to which she conveyed certain mineral interests. Under the terms of Willa‘s will, the remainder of her estate was devised to the Willa Peters Hubberd Testamentary Trust.3 Frost National Bank is the current trustee of the Peters Family Trust, and Falcon International Bank is the current trustee of the Hubberd Trust.
Dahlman and Willa‘s son, Lantz Hubberd, were named as the income beneficiaries of the Hubberd Trust. The trustee was directed to pay “the entire net income from the trust estate” to Dahlman and Lantz in equal shares and in convenient monthly or quarterly installments. The trustee also had the discretiоn to distribute trust principal for the health, support, education, and maintenance of Dahlman, Lantz, or their issue. When Lantz died in October of 2012, his son, Michael, became the second income beneficiary in Lantz‘s stead. Upon Dahlman‘s death, the Hubberd Trust will terminate, and the principal and all undistributed income will be distributed to the four grandchildren in equal shares.4 The Peters Family Trust distributes mineral income to the Hubberd Trust from which a depreciation allowance is deducted before that income is distributed to the income beneficiaries.
A dispute between the beneficiaries resulted in litigation regarding the depreciation allowanсe applicable to the mineral income distributions.5 Falcon International Bank was also sued as trustee. During the course of the litigation, the probate judge ordered an investigation into Dahlman‘s competence, resulting in a guardianship application being filed and further litigation. This litigation included an appeal and original proceedings being filed in this court. In February of 2013, the probate court ordered the parties to mediate their disputes. At the conclusion of a two-day mediation held in May of 2013, all of
At the request of at least one of the beneficiaries of the Hubberd Trust, the mediator filed a petition to modify the terms of the trust in accordance with the terms of the mediated settlement agreement. Falcon International Bank also filed a motion to approve the mediated settlement agreement. Dahlman filed an answer and counterclaims against the mediator, her daughters, and their attorneys. Three hearings were held on the petition. At the first and second hearings, Dahlman‘s attorney announced “not ready” and noted Dahlman‘s opposition to modifying the trust. After confirming that all of the parties and their attorneys had signed the mediated settlement agreement, the probate court approved the agreement and ordered the modifications to the trust requested in the petition. Dahlman subsequently non-suited her counterclaims.
MEDIATOR‘S STANDING TO FILE PETITION
In her first issue on appeal, Dahlman contends the probate court lacked jurisdiction to order the modifications to the trust because the mediator lacked standing to file the petition.6 Dahlman relies on section 112.054(a) of the Texas Trust Code which authorizes a court to order that the terms of the trust be modified on the petition of a trustee or a beneficiary.
A. Waiver and Standard of Review
In its brief, Falcon International Bank raises the issue of waivеr, contending Dahlman had to plead the mediator‘s lack of capacity as an affirmative defense. Standing, however, is a component of subject matter jurisdiction, may be raised for the first time on appeal, and may not be waived by the parties. Tex. Ass‘n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993); Martinez v. Estrada, 392 S.W.3d 261, 263 (Tex.App.-San Antonio 2012, pet. filed). Moreover, in this case, Dahlman asserted that the mediator lacked standing as a plea to the jurisdiction in her answer.
Whether a court has subject matter jurisdiction is an issue of law, which is reviewed de novo. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Martinez, 392 S.W.3d at 263. A party‘s standing is determined at the time suit is filed. Tex. Ass‘n of Bus., 852 S.W.2d at 446 n. 9; Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 550 (Tex.App.-San Antonio 2011, no pet.). “In dеtermining standing, we look to the facts alleged in the petition, but may consider other evidence in the record if necessary to resolve the question of standing.” Prize Energy Res., L.P., 345 S.W.3d at 550 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)).
B. Mediator as Agent of Beneficiaries
In his petition, the mediator sought to amend and modify the provisions of the Hubberd Trust to incorporate the provisions of the mediated settlement agreement based on the following agreement of the trustee and beneficiaries:
The parties will have prepared and cooperate in filing and securing a judgment modifying the Hubberd Trust in order to reflect the agreements to the administration of the Hubberd Trust as set out herein as provided by Texas Trust Code Section 112.054.
In this case, the reporter‘s record from the second hearing on the petition contains the mediator‘s statement that he was asked to prepare and file the petition by the attorneys for various beneficiaries and the attorney representing Dahlman in the trust litigation.7 See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (attorney‘s statements constitute evidence where statements put party on notice that attorney is attempting to prove a factual matter). The attorney for one of the grandchildren, Willa Graff, also stated that the beneficiaries had given the mediator permission to file the petition on their behalf, and subsequently filed an affidavit confirming that he requested the mediator to file the petition on behalf of his client. Similarly, the attorney for Falcon International Bank expressed his shock that Dahlman had filed counterclaims against the mediator for “doing what the parties asked him to do.”
Under Rule 7 of the Texas Rules of Civil Procedure, any party to a suit may appear in person or by an attorney of the court.
MODIFICATIONS TO THE TRUST
In her second issue, Dahlman asserts the probate court erred in ordering the modifications because: (1) the order is inconsistent with a material purpose of the trust and she did not consent to the modification; (2) the order modifies the trust in a manner that does not conform with Willa‘s probable intention as settlor; and (3) one of the mоdifications was not contained in the mediated settlement agreement.
A. Modifications in Question
The mediated settlement agreement requires both Dahlman and Michael to maintain health and general liability insurance, authorizes the trustee to pay the premiums for such insurance out of their share of the net income of the trust, and further provides for the withholding of income distributions to both if they fail to provide proof of their compliance to the trustee‘s satisfaction. With regard to the general liability insurance, the following language in the petition is consistent with the mediated settlement agreement:
The Trustee shall pay out of Mary Hubberd Dahlman‘s share of the income of the Trust the premiums on general liability insurance in a minimum amount of $1 million. If Mary Hubberd Dahlman, for any reason, does not possess such insurance, she or the Trustee shall obtain such insurance as might be available and the Trustee shall pay such premiums out of Mary Hubberd Dahlman‘s
share of the income of the Trust. If Mary Hubberd Dahlman does not provide proof to the satisfaction of the Trustee that she is in compliance with this provision, trust income distributions shall be withheld until she becomes compliant with such provision.9
With regard to health insurance, the following language in the petition is consistent with the mediated settlement аgreement:
Michael Hubberd has health insurance through his employer. Michael Hubberd shall provide proof of such insurance to the Trustee on an annual basis. If at any time Michael Hubberd does not have his own health insurance coverage through his employer or otherwise, he shall obtain such other health insurance as might be available and the Trustee shall pay such premiums out of Michael Hubberd‘s share of the income of the Trust. If Michael Hubberd does not provide proof to the satisfaction of the Trustee that he is in compliance with this provision, trust income distributions shall be withheld until he becomes compliant with such provision.
The following language in the petition with regard to Dahlman maintaining health insurance is consistent with the mediated settlement agreement:
Mary Hubberd Dahlman shall apply for Medicare and a Medicare Supplemental Insurance policy. To the extent that there are premium payments on any such health insurance, the Trustee shall pay such premiums out of Mary Hubberd Dahlman‘s share of the net income of the Trust. If Mary Hubberd Dahlman is unsuccessful, for any reason, in obtaining such insurance, she shall obtain such other health insurance as might be available and the Trustee shall pay such premiums out of Mary Hubberd Dahlman‘s share of the income of the Trust. If Mary Hubberd Dahlman does not provide proof to the satisfaction of the Trustee that she is in compliance with this provision, trust income distributions shall be withheld until she becomes compliant with such provision.
Absent from the mediated settlement agreement, however, is the following language which was included in the petition but only as to Dahlman:
Provided, however, this provision shall not become applicable until after Mary Hubberd Dahlman acquires her Medicare and a Medicare Supplemental Insurance policy. Until that time, Mary Hubberd Dahlman shall not request any distribution of principal from the Trust for health or mеdical reasons.
Arguably, the probate court could modify the terms of the trust even absent the mediated settlement agreement so long as the modification was in compliance with
B. Permissible Modifications under Section 112.054
Dahlman focuses on
Although Dahlman focuses on
This court has previously noted that the 2005 amendment to
C. Standard of Review
We reviеw a probate court‘s order modifying the terms of a trust under an abuse of discretion standard. See Conte, 312 S.W.3d at 961 (holding trial court abused its discretion in modifying terms of trust); Swantner-Carter v. Frost Nat‘l Bank, No. 13-06-00545-CV, 2008 WL 3521253, at *4 (Tex.App.-Corpus Christi Aug. 7, 2008, no pet.) (stating modification of trust reviewed for abuse of discretion) (mem. op.);
D. Purposes of the Trust
In order to determine whether the modifications of the terms of the trust were рermissible under
In Frost Nat‘l Bank of San Antonio v. Newton, the court considered a trust which, similar to the trust in the instant case, appeared to have a dual purpose. 554 S.W.2d 149 (Tex. 1977). In Newton, the trust arose from a will and was to terminate on the death of the last of the following three named beneficiaries, Rexford S. Cozby, Karolen Newton, and
After the last of the beneficiaries entitled to the educational benefits graduated from college in 1971, the trustee brought a declaratory judgment action to determine whether the trust should be terminated or should remain in effect until the last to survive of Purvis or Newton. Id. Purvis, Newton, and their children entered into an agreement requesting that the trust be terminated because the primary purposes of the trust had been accomplished. Id. at 153. The trustee and the guardian ad litem for the unborn and unadopted children of Newton and Purvis asserted that “the primary purposes of the trust have not been fulfilled because the provision for the payment of excess income to [Newton and Purvis] is not incidental and is a con tinuing obligation of the Bank as trustee.” Id. The trial court found “the trust estate was sufficient in amount to justify its continuation,” but nonetheless ordered the trust terminated because “its primary purposes had been accomplished and fulfilled.” Id. The intermediate appellate court affirmed. Id.
On appeal to the Texas Supreme Court, the court first noted that none of the parties contended that the will was ambiguous. Id. Therefore, the court asserted the “true meaning of the will must be determined by construing the language used within the four corners of the instrument.” Newton, 554 S.W.2d at 153. “No speculation or conjecture regarding the intent of the testatrix is permissible where, as here, the will is unambiguous, and we must construe the will based on the express language used therein.” Id.
With regard to the beneficiaries’ argument that payment of the excess income to Newton and Purvis was merely an “incidental” purpose of the trust, the court asserted:
To accept such a contention would require a determination of what the testatrix considered to be the principal purposes of the trust and what she considered only incidental. Such a determination would take the court beyond the express language of the will into the realm of conjecture and speculation, for it is by no means clear that the provision for excess income distribution was merely an incidental purpose of the testatrix. ... Absent an express declaration of purpose in the instrument, a court cannot go beyond the face of the will to make an ad hoc and speculative assessment of which purposes the trustor or testator considered ‘primary’ and which he considered merely ‘incidental.’
Id. at 154. The court then held that the trust could not be judicially terminated on the ground that the trust‘s primary purpose had been accomplished when the trust expressly provided for its termination upon a sрecified event. Id. Finally, with regard to the effect of the beneficia-
Having reviewed the unambiguous language of Willa‘s will, we conclude that the trust has two purposes: (1) to distribute the “entire net income” from the trust to Dahlman and Michael; and (2) to provide for the health, support, education, and maintenance of Dahlman and the four grandchildren through distributions of trust principal. The inclusion of the spendthrift provision is an indication that Willa wanted to preserve the trust assets and prevent аctions taken by the beneficiaries from depleting those assets. Based on the holding in Newton, however, we must consider both purposes as having equal importance in determining whether compliance with the terms of the trust would defeat or substantially impair those purposes based on a circumstance not anticipated by Willa. See Conte, 312 S.W.3d at 959.
1. Maintenance of Insurance
Dahlman argues that Willa could have conditioned the distribution of income and principal on her maintenance of health and general liability insurance because such insurance existed at the time Willa created the trust and, thus was a circumstance known to her. This argument ignores that Willа also would have needed to anticipate that Dahlman would forego the maintenance of such insurance. We conclude that Dahlman‘s refusal to obtain health and liability insurance is a circumstance that was not anticipated by Willa, and requiring the maintenance of such insurance would further or enhance the attainment of the purpose of the trust to provide for the health, support, education, and maintenance of Dahlman and the grand children. See In re White Intervivos Trusts, 248 S.W.3d at 342. Stated differently, Dahlman‘s failure to maintain such insurance would substantially impair the accomplishment of the purpose to provide for the hеalth, support, education, and maintenance of Dahlman and the grand children. See Conte, 312 S.W.3d at 959. Accordingly, the probate court did not abuse its discretion in modifying the trust to require the maintenance of the insurance based on
2. Payment of Premiums and Withholding of Distributions
Requiring that the premiums for the insurance be paid from the trust income would further the purpose of the trust to provide for the health, support, education, and maintenance of the grand children by preserving the trust principal; however, it would not further the purpose of distributing the “entire net income” from the trust to Dahlman and Michael. Similarly, withholding principal distributions until the insurance is obtained would further the purpose оf the trust to provide for the health, support, education, and maintenance of the grandchildren by preserving the trust principal; however, it would not further the purpose of providing for Dahlman‘s health, support, education, and maintenance. Because Newton precludes us from elevating one purpose over another, the payment of the premiums from the trust income and the withholding of distributions from principal cannot be upheld under
The withholding of income distributions and the restrictions on requesting principal distributions would prevent waste to the trust principal by imposing penalties for the failure to obtain the requisite insurance. Similarly, requiring that the premium payments be paid from trust income would prevent waste of the trust principal. However, the trust provisions pertaining to the distribution of the “entire net income” and principal are dispositive terms, as opposed to “administrative, nondisрositive” terms. Therefore, these modifications are not authorized by
Finally, although all of the parties agreed to the modifications as required by Subsection (d), withholding principal and income distributions and requiring that the premiums be paid from trust income are “inconsistent with a material purpose of the trust.” Therefore, these modifications are not authorized by
Because the modifications of the trust requiring premiums to be paid from trust income and permitting the withholding of distributions of income and principal are not authorized by
E. Estoppel by Benefits Accepted
The enforcement of the mediated settlement agreement is a separate issue from whether the probate court had the authority to modify the terms of the trust. Although Dahlman could be estopped from defending against the enforcement of the mediated settlement agreement based on her acceptance of benefits thereunder, whether the court was authorized to modify the terms of the trust to incorporate the parties’ agreement is a separate issue which is governed by section 112.054.
The cases cited by Falcon International Bank address a party being precluded from challеnging a judgment if the party accepted benefits under the judgment. See Smith v. Texas Commerce Bank-Corpus Christi, N.A., 822 S.W.2d 812, 814 (Tex.App.-Corpus Christi 1992, writ denied); Manville v. Garrison, 538 S.W.2d 819, 820 (Tex.Civ.App.-Houston [14th Dist.] 1976, writ ref‘d n.r.e.). In this case, the provisions of the mediated settlement agreement pursuant to which Dahlman received the payments were not incorporated into the order modifying the terms of the trust. Therefore, the authority cited by Falcon International Bank is not applicable.
Even if we were to consider the doctrine of quasi-estoppel, we conclude Dahlman cannot be estopped from the position she is taking. Quasi-estoppel prеvents “a party from asserting, to another‘s disadvantage, a right inconsistent with a position previously taken.” Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). “The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced, or from which he accepted a benefit.” Id. Even under this doctrine, Dahlman cannot be precluded from arguing that the probate court was without authority to order modifications to the trust that were in violation of section 112.054; in simplest terms, the modifications were either authorized by section 112.054 or they were not. We have determined that some of the modifications were not authorized.
SANCTIONS AGAINST MEDIATOR
Dahlman contends that the probate court should have imposed sanctions against the mediator because he filed the petition in the absence of standing and
Even if we had held to the contrary, however, the probate court still would not have abused its discretion in denying the sanctions. Sanctions are not appropriate in the absence of a showing of bad faith. See
APPELLATE SANCTIONS
The mediator requests that we impose appellate sanctions on Dahlman. This court is authorized to impose sanctions if it determines that an appeal is frivolous.
Although we can sympathize with the mounting frustrations of all involved and agree that the ongoing barrage of litigation and family discord are not circumstances Willa could have anticipated, in light of our holdings in this opinion, we conclude the appeal was not frivolous.
CONCLUSION
The portions of the probate court‘s orders adding the provisions in Article VI, Paragraphs A-3, A-4, A-5, and A-6 to require Dahlman and Michael Hubberd to maintain health and general liability insurance are affirmed. The portions of the probate court‘s orders adding the provisions in Article VI, Paragraphs A-3, A-4, A-5, and A-6 to require payment of the premiums for such insurance from the trust income and authorizing the withholding of distributions of income and principal are reversed, and judgment is rendered that those modifications are not authorized by section 112.054 of the Code.