Donald R. Lybrand v. Donna Johnson Williams, individually and as executrix of the estate Larue Johnson, Peggy Cline and Linda Nelson, individually--Appeal from 106th District Court of Dawson County (M

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Laws-info.com » Cases » Texas » 11th District Court of Appeals » 2012 » Donald R. Lybrand v. Donna Johnson Williams, individually and as executrix of the estate Larue Johnson, Peggy Cline and Linda Nelson, individually--Appeal from 106th District Court of Dawson County (M

State: Texas

Court: Texas Northern District Court

Docket No: 11-10-00210-CV

Case Date: 02/23/2012

Plaintiff: Donald R. Lybrand

Defendant: Donna Johnson Williams, individually and as executrix of the estate Larue Johnson, Peggy Cline and

Preview:Opinion filed February 23, 2012

In The

Eleventh Court of Appeals
__________

No. 11-10-00210-CV __________ DONALD R. LYBRAND, Appellant V. DONNA JOHNSON WILLIAMS, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF LARUE JOHNSON, PEGGY CLINE AND LINDA NELSON, INDIVIDUALLY, Appellees
On Appeal from the 106th District Court Dawson County, Texas Trial Court Cause No. 05-02-17147

MEMORANDUM OPINION This appeal arises from cross motions for summary judgment. The trial court granted appellees` motion for summary judgment1 and denied appellant`s motion. We affirm. Believing that Donald R. Lybrand converted assets belonging to Larue Johnson, Donna Johnson Williams, as attorney-in-fact for Johnson, sued Lybrand for fraud and malice, fraud in the inducement and malice, unconscionable course of conduct and malice, conversion and

We note that the trial court denied appellees` motion for summary judgment as to a party that had already been dismissed from the lawsuit.

1

malice, and breach of fiduciary duty and malice.

Johnson later died, and appellees were

substituted as plaintiffs. The crux of appellees` original underlying complaint was that Lybrand had used a fraudulent power of attorney to transfer to himself certain assets that belonged to Larue Johnson, including the financial accounts that are the subject of this appeal. The parties subsequently entered into a mediated Rule 11 Agreement. TEX. R. CIV. P. 11. The pertinent part of the Rule 11 agreement that was entered into by the parties is as follows: The parties agree to the following division of property: The Estate of Larue Johnson shall receive all accounts in the name of Larue Johnson individually or Larue Johnson with Donald R. Lybrand as Joint Tenants or as Right of Survivor, more specifically those individual accounts that were transferred or modified in ownership prior to her death. Such ownership interest or accounts shall be transferred to the Estate of Larue Johnson in the same kind or character as it existed on the date of the transfer, whether in cash, shares, or otherwise, along with any gain, interest, or dividends derived thereof (The amounts as set forth below are approximate and used for descriptive purposes): Herndon-Plant Oakley 1213-4658-5425 671,552.58 Bank of America 574036380 22,150.67 EmigrantDirect.com 5801972075 63,531.92 EmigrantDirect.com 3217376153 63,531.92 Fidelity Z42862339 134,134.41 Fidelity Z42393576 14,178.20 Fidelity 345156310 42,162.67 Herndon-Plant Oakley 121346585450 16,791.92 In addition to the accounts listed above, the Estate of Larue Johnson shall also receive [here follow references to additional property not involved in this appeal that is to belong to the Estate of Larue Johnson as well as references to specific property that is to belong to Lybrand]. Appellees, believing that Lybrand was not going to perform under the Rule 11 Agreement as they understood it, added claims for specific performance, breach of contract, and promissory estoppel. Lybrand filed a counterclaim for declaratory judgment. The dispute between the parties centered on who was to receive the specific accounts listed in the Rule 11 Agreement. The Herndon-Plant Oakley account ending in 5450 was not a part of the parties` dispute. The parties agreed that the Estate of Larue Johnson was entitled to receive that account. Both sides of this lawsuit filed traditional motions for summary judgment. The trial court granted appellees` motion for summary judgment and denied appellant`s motion for summary judgment. Lybrand appealed from that judgment.
2

That judgment was not final, and we

dismissed the appeal for want of jurisdiction. The trial court subsequently entered another judgment. In that latter judgment, the trial court held that the Rule 11 Agreement was not ambiguous and that it was enforceable. Among other things, the trial court awarded the accounts to appellees and awarded trial court attorney`s fees to them. The trial court denied all other relief, including an award of appellate attorney`s fees sought by appellees. That judgment was final. Lybrand`s motion for new trial was overruled, and Lybrand appealed. Lybrand raises two issues on appeal. First, Lybrand alleges that the trial court erred when it denied his motion for summary judgment and granted appellees` motion. Specifically, Lybrand argues that the trial court erred when it denied his motion because the Rule 11 Agreement is unambiguous and that he is entitled, as a matter of law, to receive the specific accounts listed in the agreement. Lybrand also argues that the trial court issued judgment that could only result from a finding that the agreement was ambiguous and, thus, that the trial court erred when it granted appellees` motion. Lybrand contends in his second issue that the trial court erred when it denied his motion for new trial. Appellees bring a cross-issue on appeal and allege that the trial court erred when it denied the award of appellate attorney`s fees that they sought in their motion for summary judgment. We review the trial court`s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A trial court must grant a traditional motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that the movant 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). Once the movant establishes a right to summary judgment, the nonmovant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678

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