Brian A. Smale v. John Stanley Smale ( 2013 )

AFFIRM; Opinion Filed June 26, 2013.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01588-CV
BRIAN A. SMALE, Appellant
V.
JOHN STANLEY SMALE, Appellee
On Appeal from the Collin County Probate Court
Collin County, Texas
Trial Court Cause No. PB1-0158-2012
MEMORANDUM OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Myers
Brian A. Smale appeals from the trial court’s rulings in this suit brought by appellant’s
father, John Stanley Smale. Appellant brings two issues contending the trial court erred (1) by
concluding it had jurisdiction over the case; and (2) by concluding appellant “was legally
obligated to inform and account Appellee John Smale’s finances to Appellee John Smale.” We
affirm the trial court’s judgment.
BACKGROUND
Appellee is a retired physician. He placed many of his assets into trusts with himself as
trustee and himself and his wife as beneficiaries. After appellee’s wife died, appellant became a
co-trustee with appellee, and appellee executed a power of attorney naming appellant his agent
and attorney in fact. Appellee alleged appellant then harassed and abused appellee, forced
appellee to move from his home, and took appellee’s vehicle. Appellee also alleged appellant
obtained exclusive control of appellee’s assets and sources of income other than appellee’s social
security payments and two bank accounts. Appellee alleged he executed a revocation of the
power of attorney and then demanded an accounting from appellant concerning appellee’s and
the trusts’ assets. Appellee brought suit alleging breach of fiduciary duty and seeking an
accounting. Appellee also moved for a temporary restraining order enjoining appellant from
disposing of any assets of appellee or the trusts. Appellant filed a response disputing many of
appellee’s factual assertions. Appellant did not allege any causes of action, but the prayer to his
response included requests for sanctions against appellee’s attorney “for knowingly filing false
pleadings”; for an award of costs, attorney’s fees, and “lost wages or compensation for vacation
days expended from work to defend this frivolous lawsuit”; that appellee undergo a mental
capacity assessment; and that appellant be appointed appellee’s guardian if appellee is found
incompetent.
The case was set for trial on September 26, 2012. On that day, appellee filed a motion to
nonsuit his petition, and the trial court entered an order “that the cause be nonsuited without
prejudice.” Appellant then filed a motion for new trial asserting that the trial court’s order
granting nonsuit did not contain language dismissing the case or awarding appellant his costs.
The motion also stated that the court “has discretion not to sign an order of dismissal after a
motion to nonsuit if a defendant, prior to the notice of nonsuit, filed pleadings seeking some form
of affirmative relief.” On November 12, 2012, the trial court entered an order stating that the
September 26, 2012 order was intended to be a final resolution of all issues in the case, stating
that a question of the finality of the September 26, 2012 order had arisen, ordering the case
nonsuited without prejudice, and ordering that all relief not granted in this order or the
September 26, 2012 order be denied.
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JURISDICTION
In his first issue, appellant contends the trial court erred by concluding it had jurisdiction
over appellee’s original petition. Appellant argues the probate court lacked jurisdiction because
the court’s jurisdiction is limited to matters in which the controlling issue is the settlement,
partition, or distribution of an estate. However, section 4G of the Probate Code specifically
provides the probate court with jurisdiction over:
(1) an action by or against a trustee;
(2) an action involving an inter vivos trust, testamentary trust, or charitable trust;
(3) an action against an agent or former agent under a power of attorney arising
out of the agent’s performance of the duties of an agent; and
(4) an action to determine the validity of a power of attorney or to determine an
agent’s rights, powers, or duties under a power of attorney.
TEX. PROB. CODE ANN. § 4G (West Supp. 2012). Subsections (2) and (3) provided the trial court
with jurisdiction over appellee’s suit against appellant involving the trusts and appellant’s actions
as agent under a power of attorney. Subsection (1) provided the court with jurisdiction to the
extent the suit involved appellant’s actions as co-trustee.
We conclude the trial court properly determined it had jurisdiction over the cause. We
overrule appellant’s first issue.
TRIAL COURT’S ORDERS
In his second issue, appellant contends the trial court erred by concluding appellant was
legally obligated “to inform and account Appellee[’s]” finances to appellee. The record on
appeal, however, contains no indication that the trial court required appellant to “inform and
account” to appellee about appellee’s finances. “[W]e do not consider factual assertions that
appear solely in briefs and are not supported by the record.” Unifund CCR Partners v. Weaver,
262 S.W.3d 796, 797 (Tex. 2008) (per curiam) (quoting Marshall v. Hous. Auth., 198 S.W.3d
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782, 789 (Tex. 2006)); see TEX. R. APP. P. 38.1(g), (i) (requiring the brief’s statement of facts
and argument be supported by citations to the record).
Appellant also asserts the trial court ordered appellant “to deliver gold, silver, and car
title to be delivered to a joint safety deposit box, and contents not to be removed without joint
written agreement or court order.” Appellee agrees that the court entered a “bench order” to that
effect. The only written record of this order, if any, is a notation on the case jacket, similar to a
docket-sheet order. See Smith v. McCorkle, 895 S.W.2d 692, 692 (Tex. 1995) (orig. proceeding)
(per curiam) (“A docket entry does not constitute a written order.”); Ashton Grove L.C. v.
Jackson Walker L.L.P., 366 S.W.3d 790, 795 (Tex. App.—Dallas 2012, no pet.) (“In general, a
docket entry forms no part of the record that may be considered.”). However, even if such an
order was issued, the trial court’s granting the nonsuit of the case and denial of all relief vitiated
the interlocutory order, rendering it moot and unappealable. See Gen. Land Office of State of
Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990) (nonsuit automatically dissolved an
interlocutory temporary injunction rendering moot the pending appeal of the temporary
injunction).
We overrule appellant’s second issue.
CONCLUSION
We affirm the trial court’s judgment.
/Lana Myers/
121588F.P05 LANA MYERS
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BRIAN A. SMALE, Appellant On Appeal from the Probate Court, Collin
County, Texas
No. 05-12-01588-CV V. Trial Court Cause No. PB1-0158-2012.
Opinion delivered by Justice Myers.
JOHN STANLEY SMALE, Appellee Justices Lang and Evans participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee JOHN STANLEY SMALE recover his costs of this appeal
from appellant BRIAN A. SMALE.
Judgment entered this 26th day of June, 2013.
/Lana Myers/
LANA MYERS
JUSTICE
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