in Re the MacY Lynne Quintanilla Trust, the Paige Lee Quintanilla Trust, and the Conner Reed Quintanilla Trust ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00753-CV
IN RE THE MACY LYNNE QUINTANILLA TRUST, the Paige Lee Quintanilla Trust, and
the Conner Reed Quintanilla Trust
From the Probate Court No. 2, Bexar County, Texas
Trial Court No. 2017PC0370
Honorable Tom Rickhoff, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: October 10, 2018
AFFIRMED
Appellant Andrew Bradford West (“West”) appeals from the trial court’s judgment in favor
of Appellee Paul Perry (“Perry”). We affirm the trial court’s judgment.
Background
In 2014, Oscar Leo Quintanilla (“Quintanilla”) established three trusts for the benefit of
his children: the Macy Lynne Quintanilla DGT Trust, the Paige Lee Quintanilla DGT Trust, and
the Connor Reed Quintanilla DGT Trust (collectively, the “2014 Trusts”). The 2014 trust
agreements named Perry Trustee and West Trust Protector. The trust agreements give the Trust
Protector the power to remove the trustee and appoint a successor trustee. Each trust agreement
contains a clause expressly authorizing and empowering the Trustee to merge the trust into a new
trust under certain circumstances.
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Quintanilla and West had a falling out in 2016 and severed their business relationship, but
West remained Trust Protector for the 2014 Trusts. West requested an accounting of the 2014
Trusts and, on August 18, 2016, advised Quintanilla that he was considering removing Perry as
Trustee and replacing him with an institutional trustee as “part of the overall effort to terminate all
involvements between Mr. Quintanilla and Mr. West.”
Later in August 2016, Quintanilla established three new trusts for his children: the Macy
Lynne Quintanilla 2016 Trust, the Paige Lee Quintanilla 2016 Trust, and the Connor Reed
Quintanilla 2016 Trust (collectively, the “2016 Trusts”). The 2016 trust agreements are virtually
identical to the 2014 trust agreements, except they name Quintanilla’s brother Hector Trust
Protector in lieu of West. Perry is Trustee for the 2016 Trusts.
Shortly after the 2016 Trusts were formed, Perry executed three agreements to merge each
of the 2014 Trusts into the 2016 Trusts. Each of the trust beneficiaries, who had attained majority
by the time the trusts were merged, signed the merger agreement for his or her respective trust,
expressly acknowledged and agreed to the merger, and waived notice.
Perry subsequently filed this lawsuit, alleging the 2014 Trusts ceased to exist after they
were merged into the 2016 Trusts. Perry sought declarations that West is not an “interested person”
under the Texas Trust Code and has no right to demand an accounting or to receive financial
information regarding either the 2016 Trusts or the merged 2014 Trusts. Perry also requested
attorney’s fees. West answered and asserted counterclaims seeking declarations that: (1) the 2014
Trusts cannot be merged into the 2016 Trusts; or, alternatively, (2) West is an “interested person”
with the right to an accounting and financial information regarding the 2014 Trusts up to the date
of merger with the 2016 Trusts; and (3) West fulfilled his duties regarding the 2014 Trusts. West
also requested an accounting of the 2014 Trusts and attorney’s fees.
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Shortly after initiating the case, Perry sought partial summary judgment that: (1) the 2016
Trusts were properly established, and (2) West was not entitled to notice of the merger of the 2014
Trusts into the 2016 Trusts. 1 After a hearing, the trial court granted Perry’s motion for partial
summary judgment without stating its grounds.
Perry then filed a second motion for summary judgment and for entry of final judgment on
the basis that, in light of the trial court’s prior order granting partial summary judgment, West
cannot prevail on the remaining claims because he is not an “interested person” with respect to the
2014 Trusts or the 2016 Trusts. Perry also submitted the affidavit of his trial counsel in support
his request for attorney’s fees. The trial court granted the second motion for summary judgment
and entered final judgment that West take nothing on his counterclaims against Perry. The trial
court awarded Perry $54,757.50 in reasonable and necessary attorney’s fees, $554.09 in expenses,
and conditional appellate attorney’s fees.
In four issues on appeal, West argues the trial court erred in granting the two motions for
summary judgment and in rendering a final judgment based on the motions for summary judgment.
Discussion
A. Standard of review
We review the grant of traditional summary judgment de novo. Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The party seeking traditional summary
judgment has the burden to show no genuine issue of material fact exists and that he is entitled to
judgment as a matter of law. Id. at 215–16; TEX. R. CIV. P. 166a(c). “When reviewing a summary
judgment, we take as true all evidence favorable to the nonmovant, and we indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor.” Knott, 128 S.W.3d at 215.
1
The three trust beneficiaries separately moved for partial summary judgment on the same grounds. The record does
not reflect whether or how the trial court ruled on the trust beneficiaries’ motion.
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Where, as here, the trial court does not state its grounds for granting summary judgment, we will
affirm the trial court’s judgment if any theory presented to the trial court and preserved for
appellate review is meritorious. Id. at 216.
To resolve Perry’s motions for summary judgment, the trial court was required to interpret
the trust agreements. When interpreting a trust, courts must ascertain the intent of the grantor from
the language used within the four corners of the trust instrument. In re Ray Ellison Grandchildren
Trust, 261 S.W.3d 111, 117 (Tex. App.—San Antonio 2008, pet. denied). If the trust instrument
is unambiguous and expresses the grantor’s intent, “it speaks for itself.” Id. (quoting Eckels v.
Davis, 111 S.W.3d 687, 694 (Tex. App.—Fort Worth 2003, pet. denied)). “[W]hen the intent of
the grantor is unambiguous, his intent controls even if it conflicts with applicable statutes.” Id.
(citing Vaughn v. Vaughn, 337 S.W.2d 793, 796 (Tex. 1960)). There does not appear to be any
dispute in this case that the trust agreements are unambiguous.
B. The trial court did not grant more relief than Perry requested.
In his first issue, West argues the final judgment granted more relief than Perry requested
in his motions for summary judgment. “It is axiomatic that one may not be granted judgment as a
matter of law on a cause of action not addressed in a summary judgment proceeding.” Chessher v.
Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983). “Although a trial court errs in granting a
summary judgment on a cause of action not expressly presented by written motion, . . . the error
is harmless when the omitted cause of action is precluded as a matter of law by other grounds
raised in the case.” G&H Towing Co. v. Magee, 347 S.W.3d 293, 297–98 (Tex. 2011) (per curiam).
We will reverse only those portions of a summary judgment that were based on harmful error. Id.
at 298.
Specifically, West argues the final judgment purports to resolve all parties and claims even
though Perry did not request summary judgment on Perry’s own claim that West lacked standing
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(i.e., is not an “interested person”), but rather only addressed standing in response to West’s
counterclaims. West relies on the “Summary Judgment Grounds” section of Perry’s second motion
for summary judgment, which states: “Because of this Court’s May 11, 2017 Order Granting
Summary Judgment . . . Mr. West is unable to prevail, as a matter of law, on the Remaining Claims.
Namely, that he is an ‘interested person’ in the [2014] Trusts or the 2016 Trusts.” Although the
second motion for summary judgment repeatedly refers to “Mr. West’s Remaining Claims,” the
motion does not define “Remaining Claims” as West’s counterclaims alone. Rather, the second
motion for summary judgment specifically argues: “[T]here is no genuine issue of material fact
that Mr. West is not an ‘interested person’ in the [2014 Trusts] or the [2016 Trusts], as that term
is defined under Section 111.004(7) of the Texas Property (Trust) Code.” Both Perry and West
sought declarations regarding whether West has standing. Therefore, by granting the second
motion for summary judgment, the trial court ruled in Perry’s favor on this issue and necessarily
resolved Perry’s claims as well as West’s counterclaims.
Because we conclude the final judgment did not grant more relief than Perry’s motions for
summary judgment requested, we overrule West’s first issue.
C. The trial court did not err in granting Perry’s first motion for partial summary
judgment.
In his second issue, West argues the trial court erred in granting Perry’s motion for partial
summary judgment because Perry did not conclusively establish: (1) the 2016 Trusts were validly
formed, (2) the 2014 Trusts were properly merged into the 2016 Trusts, and (3) West was not
entitled to notice regarding the trusts’ merger.
1. The 2016 Trusts were validly formed.
First, West argues the trial court should not have granted Perry’s motion for summary
judgment because Perry did not conclusively establish that the 2016 Trusts were validly formed.
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West contends Perry did not identify any evidence showing the trusts were funded with property
at formation, as required by the Trust Code. See TEX. PROP. CODE ANN. § 112.005 (West 2014)
(“A trust cannot be created unless there is trust property.”).
Here, the trust agreement for each of the 2016 Trusts states: “Settlor hereby conveys,
transfers and assigns to the Trustee, in trust, the separate property of Settlor described on Schedule
A. attached hereto and made a part hereof, receipt of which is hereby acknowledged by the
Trustee.” Schedule A to each trust agreement states simply: “$5,000.00.” West argues this
evidence does not prove funds actually were transferred into the 2016 Trusts. However, a trust
agreement itself may be sufficient summary judgment evidence that the trust was in fact funded.
See In re Estate of Canales, 837 S.W.2d 662, 664 (Tex. App.—San Antonio 1992, no writ)
(affirming summary judgment that trust was funded even where “Schedule ‘A’ was left blank”
because “abundant property can nevertheless be identified from other provisions of the trust
agreement”). Absent any evidence in the record to the contrary, we conclude Perry met his
summary judgment burden of demonstrating no genuine issue of material fact exists that the 2016
Trusts were funded.
2. The 2014 Trusts were properly merged with the 2016 Trusts.
Second, West argues Perry did not conclusively establish the 2014 Trusts were properly
merged into the 2016 Trusts because the record does not show the merger complied with the Trust
Code’s requirement that a merger cannot impair the beneficiaries’ rights or adversely affect
achievement of the trusts’ purpose. TEX. PROP. CODE ANN. § 112.057(c) (“The trustee may, unless
expressly prohibited by the terms of the instrument establishing a trust, combine two or more trusts
into a single trust without a judicial proceeding if the result does not impair the rights of any
beneficiary or adversely affect achievement of the purposes of one of the separate trusts. . . .).
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Here, a provision entitled “Merger” in each of the 2014 trust agreements expressly provides
for merger of the 2014 Trusts into newly formed, substantially identical trusts for the benefit of
the same beneficiaries:
Merger: If at any time there are additional trusts created for the benefit of the same
person or persons who are beneficiaries of trusts created hereunder on substantially
the same terms and conditions as those set forth herein, then the Trustee is expressly
authorized and empowered, if in its discretion, it deems such action desirable, to
transfer and merge all the assets held in the trust or trusts created hereunder to and
with such other trust or trusts and thereupon to terminate the trust or trusts created
hereunder as a separate entity or entities.
Therefore, by their own terms, the 2014 trust agreements anticipate and permit the merger of the
2014 Trusts into the 2016 Trusts. Further, each merger agreement states that “Perry, as Trustee of
the [2014] Trust and the 2016 Trust, has determined that the combination of the 2016 Trust and
the [2014] Trust will not impair the rights of any beneficiary or adversely affect achievement of
the purposes of any of the trusts,” and each beneficiary signed his or her respective merger
agreement acknowledging and agreeing to its terms.
There is scant authority interpreting when a merger of trusts “impair[s] the rights of any
beneficiary or adversely affect[s] achievement of the purposes of one of the respective trusts.”
West argues the merger adversely affected achievement of the purpose of the 2014 Trusts because
it removed him as Trust Protector. However, the 2014 trust agreements do not provide a method
for removing or replacing the Trust Protector that was circumvented by merging the trusts. Rather,
the 2014 trust agreements are silent regarding the removal and replacement of the Trust Protector.
The 2014 trust agreements are not silent regarding the method for merging the trusts and expressly
authorize and empower the Trustee to do so “in [his] discretion.” 2 Therefore, we disagree that a
fact question exists regarding whether the merger impaired the rights of any beneficiary or
2
We also note that each trust beneficiary waived notice and agreed to the mergers.
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adversely affected the achievement of the purposes of any of the trusts. Absent any evidence in
the record to the contrary, we conclude Perry met his summary judgment burden of demonstrating
no genuine issue of material fact exists that the 2014 Trusts were properly merged with the 2016
Trusts.
3. West was not entitled to notice of the trust mergers.
Finally, West argues Perry was not entitled to summary judgment that West was not
entitled to receive notice of the mergers because the mergers adversely affected achievement of
the purposes of the trusts by removing the Trust Protector without authorization. As discussed
above, we disagree there is a fact question regarding whether the mergers adversely affected
achievement of the purposes of the trusts.
In addition, neither the 2014 trust agreements nor the Trust Code itself requires notice be
given to a trust protector. Rather, a trustee is only required to give notice to “each beneficiary who
might then be entitled to receive distributions from the separate trusts being combined or to each
beneficiary who might be entitled to receive distributions from the separate trusts once the trusts
are funded.” TEX. PROP. CODE ANN. § 112.057(c)(1). Here, each of the three beneficiaries
expressly waived notice of the mergers. Therefore, we conclude Perry met his summary judgment
burden of demonstrating no genuine issue of material fact exists that West was not entitled to
notice of the mergers.
West’s second issue is overruled.
D. The trial court did not err in granting Perry’s second motion for summary
judgment and disposing of West’s counterclaims.
In his third issue, West again argues the trial court erred in granting the second motion for
summary judgment because the prior summary judgment did not resolve whether West is an
“interested person.” As noted above, we conclude that by granting the second motion for summary
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judgment, the trial court ruled in Perry’s favor that West is not an “interested person” with standing
to assert claims against the trusts.
West also argues the trial court erred in granting the second motion for summary judgment
because a fact question exists regarding whether West is an “interested person” vis-à-vis the 2014
Trusts. An “interested person” is “a trustee, beneficiary, or any other person having an interest in
or a claim against the trust or any person who is affected by the administration of the trust.” TEX.
PROP. CODE ANN. § 111.004(7) (West 2014). “The phrase ‘administration of a trust’ refers to when
a trustee manages a trust in accordance with its terms and conditions and section 113.051 of the
Texas Property Code.” Gonzalez v. DeLeon, No. 04-14-00751-CV, 2015 WL 5037396, at *4 (Tex.
App.—San Antonio Aug. 26, 2015, pet. dism’d) (mem. op.) (citing Faulkner v. Bost, 137 S.W.3d
254, 259 (Tex. App.—Tyler 2004, no pet.)). “Whether a person, excluding a trustee or named
beneficiary, is an interested person may vary from time to time and must be determined according
to the particular purposes of and matter involved in any proceeding.” § 111.004(7).
We have recognized that “[t]here is very little case law interpreting the meaning of the
phrase ‘interested person.’” Gonzalez, 2015 WL 5037396, at *4. However, generally, a person
who does not manage a trust (a trustee) or stand to inherit any trust assets (a beneficiary) is not an
“interested person” by virtue of being a “person who is affected by the administration of the trust.”
See Lee v. Rogers Agency, 517 S.W.3d 137, 159–60 (Tex. App.—Texarkana 2016, pet. denied)
(holding settlor who did not manage any aspects of the trust and did not stand to inherit any trust
assets was not “affected by the administration of the trust”); Gonzalez, 2015 WL 5037396, at *5
(holding co-attorneys-in-fact and co-executors for settlors who did not manage trust and did not
stand to inherit trust assets were not “interested persons”); Hunter v. NCNB Tex. Nat’l Bank, No.
14-94-01199-CV, 1996 WL 223584, at *3 (Tex. App.—Houston [14th Dist.] May 2, 1996, writ
denied) (mem. op.) (holding daughter of settlor/beneficiary who had only expectancy to inherit
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trust property was not interested person); Davis v. Davis, 734 S.W.2d 707, 709 (Tex. App.—
Houston [1st Dist.] 1987, writ ref’d n.r.e.) (holding father of trust beneficiaries who was not
managing conservator and only expected to inherit was not interested person).
Here, although he is neither a trustee nor a beneficiary, West argues he is affected by the
administration of the 2014 Trusts because he is the Trust Protector. As West acknowledges, there
is little authority discussing the role of trust protectors, which the Trust Code only recognized in
2015. See TEX. PROP. CODE ANN. § 114.0031 (West Supp. 2017). The Trust Code provides that a
trust protector has only the power and authority granted to him by the trust terms, which may
include:
(1) the power to remove and appoint trustees, advisors, trust committee members,
and other protectors;
(2) the power to modify or amend the trust terms to achieve favorable tax status or
to facilitate the efficient administration of the trust; and
(3) the power to modify, expand, or restrict the terms of a power of appointment
granted to a beneficiary by the trust terms.
Id. § 114.0031(d).
The unambiguous language of the trust agreements governs our analysis in this case. See
Ray Ellison Grandchildren Trust, 261 S.W.3d at 121. The 2014 trust agreements only grant the
Trust Protector the power to appoint, remove, and replace the Trustee in accordance with the terms
of the agreements. Nothing in the 2014 trust agreements grants the Trust Protector any power to
manage any aspects of the trust, to request or obtain an accounting or other financial information,
or to inherit any trust assets. The 2014 trust agreements also expressly provide that the Trust
Protector is not entitled to any compensation. Therefore, by the express terms of the 2014 trust
agreements, the Trust Protector is not “affected by the administration of the trust.” For these
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reasons, we conclude West is not an “interested person” under section 111.004(7). We overrule
West’s third issue.
E. Attorney’s Fees
In his second motion for summary judgment, Perry sought his reasonable and necessary
attorney’s fees and expenses. In support, Perry submitted the affidavit of his trial counsel. West
filed objections to trial counsel’s affidavit and a motion to strike her testimony, but the trial court
did not explicitly rule on either. The trial court entered final judgment awarding Perry $55,311.59
in reasonable and necessary attorney’s fees and expenses, as well as conditional appellate
attorney’s fees. In his fourth issue, West argues the trial court erred in awarding Perry attorney’s
fees because trial counsel’s affidavit does not conclusively establish that the fees awarded were
reasonable and necessary.
1. Standard of review
The Declaratory Judgments Act permits the trial court to award “costs and reasonable and
necessary attorney’s fees as are equitable and just.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.009
(West 2014). “[T]he Declaratory Judgments Act entrusts attorney fee awards to the trial court’s
sound discretion, subject to the requirements that any fees awarded be reasonable and necessary,
which are matters of fact, and to the additional requirements that fees be equitable and just, which
are matters of law.” Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). On appeal from an award
of attorney’s fees, we must determine whether the trial court abused its discretion by ruling
arbitrarily, unreasonably, or without regard for guiding legal principles. Id.
2. Analysis
While the reasonableness and necessity of attorney’s fees ordinarily is a question of fact,
“[a]n attorney’s affidavit can sufficiently establish the reasonableness of attorney’s fees for
purposes of summary judgment.” Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373
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(Tex. App.—San Antonio 1999, pet. denied). “An affidavit filed by the movant’s attorney that sets
forth [her] qualifications, [her] opinion regarding reasonable attorney’s fees, and the basis for [her]
opinion will be sufficient to support summary judgment, if uncontroverted.” Id.
Here, Perry’s trial counsel’s affidavit sets forth her qualifications as a member in good
standing of the State Bar of Texas since 1993, and trial counsel’s résumé is attached to her
affidavit. Trial counsel’s affidavit lists the established factors 3 for determining the reasonableness
of attorney’s fees and states that trial counsel is familiar with the factors and has considered them
in reaching her opinion that:
[T]he fees and expenses charged in this case are customarily charged in this area
for the same or similar services for an attorney with my experience and with the
experience of other attorneys reflected on these billings, reputation, and ability,
considering the amount in controversy and the type of controversy involved, the
time limitations imposed, the results obtained, and the nature and length of our
firm’s relationship with Mr. Perry.
The affidavit states that “the matters raised in this case required that my firm and I spend
approximately 110 hours prosecuting claims against Mr. West and defending against
counterclaims made by Mr. West against Mr. Perry.” The engagement letter between trial
counsel’s law firm and Perry, which sets forth the scope of representation and the attorneys’ hourly
rates, is attached to trial counsel’s affidavit, as is a detailed billing record for the matter.
Trial counsel’s affidavit states Perry will incur an additional $10,000 in attorney’s fees and
expenses in connection with the then-pending motion for summary judgment, which is roughly
equivalent to the total amount incurred in connection with the first motion for summary judgment,
as reflected in the detailed billing record attached to trial counsel’s affidavit. In addition, trial
counsel’s affidavit itemizes anticipated appellate attorney’s fees, explaining: “These appellate
3
These factors are set forth in Arthur Anderson & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997)
and TEX. DISCIPLINARY R. PROF’L CONDUCT 1.04, reprinted in TEX. GOV’T CODE, tit. 2, subtit. G app. (STATE BAR
RULES, art. X, § 9).
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estimates are based on expected hours of attorney and paralegal time to defend the appeal,
including preparation of briefs and preparation for and attendance at oral argument.”
Although West objected to trial counsel’s affidavit and moved to strike her testimony, he
did not offer any expert testimony or other evidence controverting trial counsel’s testimony. See
Basin Credit Consultants, 2 S.W.3d at 373 (holding attorney’s affidavit is sufficient if
uncontroverted). Testimony from an interested witness that “is not contradicted by any other
witness, or attendant circumstances, and the same is clear, direct and positive, and free from
contradiction, inaccuracies, and circumstances tending to case suspicion thereon, it is taken as true,
as a matter of law.” Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009) (quoting
Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990)). This is especially true
where the opposing party had the means and opportunity to disprove the testimony but failed to
do so. Id. Therefore, because trial counsel’s affidavit is uncontroverted and establishes the
reasonableness of the fees sought in line with the applicable factors, we conclude it is sufficient to
support summary judgment as to attorney’s fees. See id.; Basin Credit Consultants, 2 S.W.3d at
374. West’s fourth issue is overruled.
Conclusion
Because we overrule all of West’s issues on appeal, we affirm the trial court’s judgment.
Marialyn Barnard, Justice
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