Dessie Hunt Simmons v. The State of Texas--Appeal from 5th District Court of Cass County

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Laws-info.com » Cases » Texas » 6th District Court of Appeals » 2006 » Dessie Hunt Simmons v. The State of Texas--Appeal from 5th District Court of Cass County

State: Texas

Court: Texas Northern District Court

Docket No: 06-05-00231-CR

Case Date: 10/13/2006

Plaintiff: Kenneth Homer Koch, Jr.

Defendant: The State of Texas--Appeal from Criminal District Court of Jefferson County

Preview:Albert Burl Pittman, Trustee of the Evelyn White Pittman Trust v. Danny L. Brown, Independent Executor of the Estate of Evelyn White Pittman-Appeal from 42nd District Court of Taylor County
Opinion filed November 30, 2006 Opinion filed November 30, 2006 In The Eleventh Court of Appeals ____________ No. 11-05-00346-CV __________ ALBERT BURL PITTMAN, TRUSTEE OF THE EVELYN WHITE PITTMAN TRUST, Appellant V. DANNY L. BROWN, INDEPENDENT EXECUTOR OF THE ESTATE OF EVELYN WHITE PITTMAN, Appellee On Appeal from the 42nd District Court Taylor County, Texas Trial Court Cause No. 45,788-A MEMORANDUMOPINION This is an appeal from the trial court=s determination that Albert Burl Pittman should be removed as Trustee of the Evelyn White Pittman Trust and that Pittman=s petition to modify the trust should be denied. We affirm.

The record before this court reflects that Albert was the widower of Evelyn White Pittman. During their marriage, Evelyn established the trust in 1993. In the trust, Evelyn sought to provide for herself and then, upon her death, for Albert, for her children, and for her grandchildren. Evelyn provided that, with the exception of Albert, only those persons related to her by blood would be beneficiaries. Evelyn specifically excluded an adopted grandchild. Evelyn amended the trust in 1995 to prohibit the trustee from allowing anyone to A[s]ell, convey, exchange, convert, grant an option, assign, partition, divide, subdivide, abandon, mortgage, pledge, hypothecate, or assign@ her property in Hamilton County. In 1996, Evelyn again amended the trust provision limiting the trustee=s powers as to the Hamilton County property stating, AIt is my express intention that [the Hamilton County property] be held for the benefit of my children and their descendants for as long as legally possible.@ Evelyn died in January of 2003.
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In September 2003, Albert filed his petition to modify the trust to allow him to sell the Hamilton County property. Danny L. Brown, Evelyn=s son and the independent executor of her estate, filed an answer opposing the petition and a counterclaim to remove Albert as trustee. Danny also filed a motion for a partial summary judgment on the grounds that preserving family ownership of the Hamilton County property was one of the purposes of Evelyn=s trust, that that purpose was not illegal or impossible to fulfill, and that there were no unforeseen circumstances that would impair any of the purposes of the trust. The trial court granted Danny=s motion for partial summary judgment. A jury heard evidence on the counterclaim. The trial court then entered judgment that as a matter of law Albert breached his fiduciary duty as trustee and removed Albert as trustee. Albert represented himself in the trial court proceedings and is representing himself on appeal. We note that there is no basis in Texas law to differentiate between a litigant represented by counsel and a litigant not represented by counsel. Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005); Mansfield State Bank v. Cohn, 573 S.W.2d 181 (Tex. 1978). Both litigants must comply with the applicable rules and the applicable law. Wheeler, 157 S.W.3d at 444; Mansfield, 573 S.W.2d at 184-85. The record before this court consists only of the clerk=s record. Tex. R. App. P. 37.3(c). Albert challenges the trial court=s granting of Danny=s motion for summary judgment. Albert contends that the trial court failed to consider his sworn petition and should have submitted his request to change the terms of the trust to the jury. We disagree.

A trial court properly grants a motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). When reviewing a summary judgment, the appellate court takes as true evidence favorable to the nonmoving party, indulges in every reasonable inference, and resolves any doubts in favor of the nonmoving party. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546 (Tex. 1985); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979). The moving party has the burden of proof; and, once the moving party establishes a right to a summary judgment, the burden shifts to the nonmoving party to establish any issues that would preclude the summary judgment. Clear Creek, 589 S.W.2d at 677-79. Rule 166a(c) provides that a summary judgment may be based on uncontroverted evidence if that evidence is clear, positive, direct, credible, and free from contradiction and if that evidence could have been readily controverted. Attached to Danny=s motion was the affidavit of Donald L. Anderson, the attorney who had prepared Evelyn=s original trust agreement and her various amendments. In his affidavit, Anderson stated that he clearly recalled the circumstances under which Evelyn desired to amend the trust. Evelyn Awas concerned that it be specifically provided that in no event could the Hamilton County, Texas, property be conveyed.@ Anderson recalled that Evelyn had told him that the property had been in her family for Awell over@ one hundred years and that she wanted the property to remain with her family that were her blood relatives for Aas long as possible.@ Anderson stated that he explained to Evelyn that the property could not be held in perpetuity. Evelyn then requested that he add the sentence about how it was her expressed intention that the Hamilton County property be held for the benefit of blood descendants for Aas long as legally permissible.@ Albert did not respond to the motion and on appeal relies entirely on the allegations in his petition. Albert alleged that time was of the essence because he had two qualified purchasers of the Hamilton County property, that circumstances had changed drastically with Evelyn=s death so that the trust could no longer perform its main purpose of taking care of Evelyn, and that the Hamilton County property must be sold to pay legal fees.

The uncontroverted summary judgment evidence established that one of the purposes of the trust was to provide that the Hamilton County property benefit Evelyn=s blood descendants for Aas long as legally possible.@ The trust itself clearly establishes that two other purposes were to provide for Evelyn as long as she lived and then on her death to provide for Albert and for Evelyn=s blood descendants.
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Albert did not establish the existence of a genuine issue of fact in his action to modify the trust. The trial court did not err in granting Danny=s motion for summary judgment. All of Albert=s arguments concerning the granting of the summary judgment are overruled. Next, Albert challenges the trial court=s finding as a matter of law that he had breached his fiduciary duties as trustee. Albert contends that Aspecial issues@ existed and that the jury should have determined the facts of Danny=s counterclaim. Albert is, in effect, arguing that the evidence presented created fact issues for the jury to determine. However, a reporter=s record was never filed. Rule 37.3(c). Albert has not established that the trial court abused its discretion in its determination. This argument is overruled. All of Albert=s contentions on appeal have been considered. Each is overruled. The judgment of the trial court is affirmed. PER CURIAM November 30, 2006 Panel consists of: Wright, C.J., Strange, J., and McCloud, S.J.[1]

[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.

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