Susan Camille Lee v. Ronald E. Lee Jr., Katherine Lee Stacy, and Legacy Trust Company, Receiver , 2017 Tex. App. LEXIS 7174 ( 2017 )

Affirmed and Opinion filed August 1, 2017.
In The
Fourteenth Court of Appeals
NO. 14-16-00258-CV
SUSAN CAMILLE LEE, Appellant
V.
RONALD E. LEE JR., KATHERINE LEE STACY, AND LEGACY TRUST
COMPANY, RECEIVER, Appellees
On Appeal from the Probate Court No. 2
Harris County, Texas
Trial Court Cause No. 137,506-403
OPINION
In this dispute between siblings concerning the administration of their
mother’s testamentary trust, a sister appeals trial court rulings (1) removing her as
trustee, (2) appointing a receiver, (3) approving the receiver’s application for
approval of a settlement agreement with the sister’s brother, and (4) denying the
sister’s motion to continue the hearing on the receiver’s application. We conclude
that the statutory probate court’s orders are not void for lack of jurisdiction, and that
the court did not abuse its discretion in approving the settlement agreement or in
denying the motion for a continuance. We accordingly affirm the trial court’s
judgment.
I. BACKGROUND
Katherine Pillot Lee Barnhart died in 1975, and under the terms of her will,
most of her estate passed into a testamentary trust (“the Trust”). Barnhart’s children
Ronald E. Lee Jr. (“Ronald”) and Susan Camille Lee (“Susan”) are beneficiaries of
the Trust, as are Ronald’s daughter Katherine Lee Stacy (“Stacy”) and Susan’s
daughter Susan Gibson (“Gibson”). The trustee is required to make quarterly
distributions of one-sixth of the Trust’s current net income to Ronald and one-sixth
to Susan. If this amount, together with funds available from other sources, is
insufficient to provide for either Ronald’s or Susan’s health, maintenance, and
support, then the Trust must distribute additional amounts to that person from the
remaining two-thirds of the Trust’s current net income. The remainder of the Trust’s
current net income must be distributed at least semi-annually to Stacy and Gibson.
On the death of Ronald and Susan, the remainder of the Trust estate is to be
transferred to new, separate trusts for Stacy and Gibson.
A. The First Lawsuit: Susan’s Suit Against Ronald
Thirteen years after Barnhart’s death, Ronald, the executor of his mother’s
estate and original trustee of the Trust, had made no distributions and had not
responded to Susan’s repeated demands for an accounting. Susan, individually and
on behalf of the Trust, sued Ronald in a statutory probate court for breach of
fiduciary duty and asked the trial court to remove him as executor and as trustee.
The jury found that Ronald breached his fiduciary duties to the Trust by
expending large amounts on a later-abandoned real estate development project,
unreasonable office expenses, and excessive executor’s fees. The trial court reduced
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the amount of the damages assessed by the jury for excessive fees and declined to
remove Ronald as executor or trustee. The parties agreed that each side’s reasonable
and necessary attorney’s fees were $1.5 million for attorney’s fees through trial, an
additional $300,000 in the event of an appeal to an intermediate appellate court, and
a further $100,000 in the event of an appeal to the Texas Supreme Court. The trial
court ordered the Trust to pay for each side’s attorney’s fees.
Susan appealed. See Lee v. Lee, 47 S.W.3d 767 (Tex. App.—Houston [14th
Dist.] 2001, pet. denied) (corr. op. on reh’g) (“Lee I”). We concluded that the trial
court erred in reducing the damages assessed by the jury; in failing to remove Ronald
as trustee; and in refusing to require Ronald to reimburse the Trust for Susan’s
attorney’s fees. See id. at 801. Although Ronald had paid the judgment rendered by
the trial court, the decision in Lee I left Ronald owing the Trust—of which Susan
was now the trustee—more than $1.5 million as reimbursement for his excessive
executor’s fees and $1.9 million as reimbursement for Susan’s attorney’s fees. The
parties agree that as of February 28, 2002, pre-and post-judgment interest brought
this amount to $6,128,326.99.
B. This Lawsuit: Ronald’s Suit Against Susan
Fourteen years after Susan became trustee, she too had failed to make any
distributions to Ronald or his daughter; however, there is evidence that Susan made
distributions to herself and her own daughter. In the summer of 2014, Ronald sued
and requested a Trust accounting so he could calculate the extent to which his
outstanding debt to the Trust was offset by the Trust’s withholding of the required
distributions to him. Susan refused to respond. Six months later, Ronald received
notice of the impending foreclosure of one of the Trust’s real properties for
nonpayment of taxes. Susan allowed a default judgment to be taken against the
Trust, but redeemed the property before it was sold.
3
Ronald sued Susan, individually and in her capacity as trustee, in the same
statutory probate court in which the earlier case was tried. He asserted claims for
breach of fiduciary duty, violations of the Trust’s terms and of the Texas Trust Code,
and asked for an accounting, Susan’s removal as trustee, and attorney’s fees. Stacy
intervened in the action, seeking the same relief on the same grounds.
After finding that Susan had breached the terms of the Trust and of the Texas
Trust Code, and that the Trust was at risk of further imminent harm from Susan’s
failure to pay taxes on Trust real property, the trial court removed Susan as trustee
on June 18, 2015 and appointed Legacy Trust Company, N.A. (“Legacy”) as the
Trust’s receiver. The trial court directed Legacy to, among other things, pay
Ronald’s attorney’s fees; “[c]ollect, compromise, or settle all debts owed to the
Trust”; “[p]rosecute, defend, and/or settle all legal proceedings . . . brought by or
against the Trustee of the Trust”; and “[i]nstitute such legal proceedings as the
Receiver deems necessary or advisable to obtain constructive or actual possession
of assets of the Trust or to recover damages suffered by the Trust.” The trial court
also granted the receiver “discretion not to pursue litigation against [Susan] that is
undertaken by beneficiaries of the Trust for the benefit of the Trust.” The trial court
ordered Susan to provide to Legacy, within seven days, copies of all records in her
possession, custody, and control sufficient to identify (1) all real and personal
property owned by the Trust, or by Susan as trustee, at any time while Susan was
trustee; and (2) all of the Trust’s distributions and expenditures during that time.
Susan did none of these things.
After Susan was removed as trustee, Ronald paid Legacy $8 million toward
his debt to the Trust and asked to negotiate a settlement. Legacy informed Susan’s
attorney Thomas Zabel that it was negotiating a settlement with Ronald. Legacy
also attempted to contact Susan directly by phone, email, letter, and finally by having
4
a Legacy employee fly with Zabel to Florida, where Susan resides, but Susan refused
to respond.
After months of negotiation, Legacy and Ronald reached a settlement
agreement and Legacy filed an application for the trial court’s approval. Susan filed
a response and objections to the application. A week before the hearing on the
application, Susan moved for a continuance of at least ninety days to conduct
discovery. At the hearing on both matters, the trial court stated that it would hear
the description of the settlement first, and that Susan could move for a continuance
afterward if she still believed discovery was needed.
Legacy’s president and chief executive officer Edward “Ned” Naumes
testified in support of the settlement agreement, as did Ronald. At the close of the
evidence on the application for approval of the settlement, the parties presented their
arguments on Susan’s motion for a continuance to perform discovery. The trial court
denied the motion, approved the settlement, and informed counsel that the court
would hold another hearing on the application in two weeks if Susan moved for a
rehearing. Susan did not do so.
Two days after Susan filed her notice of appeal, Legacy and Ronald closed on
the settlement agreement. In accordance with the agreement’s terms, Ronald deeded
his interest in certain property to Legacy, in its capacity as the Trust’s receiver.
Ronald also executed and delivered a promissory note and other agreements and
made the first payment toward the cash portion of the settlement. In exchange for
this and other consideration, Legacy sold to Ronald the Trust’s judgment against
him.
5
II. ISSUES PRESENTED
In her first issue, Susan asserts that the statutory probate court could exercise
jurisdiction over the claims and requests raised in this case only if there were a
pending probate proceeding. She asserts that there was no pending probate
proceeding when the trial court removed her as trustee and appointed a receiver in
June 2015, or when the trial court approved Legacy’s settlement agreement with
Ronald in March 2016. She therefore reasons that these rulings are void for want of
jurisdiction. In her second issue, Susan contends that if the trial court had
jurisdiction, then the trial court abused its discretion in approving the settlement
agreement. She argues in her third issue that the trial court abused its discretion in
denying her motion to continue the hearing on Legacy’s application for approval of
the settlement agreement.
III. THIS COURT’S JURISDICTION
A judgment or order by a court without the power or jurisdiction to render it
is void. See Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431 (Tex. 1986)
(orig. proceeding). All courts accordingly are obliged “to ascertain that subject
matter jurisdiction exists regardless of whether the parties have questioned it.” City
of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam) (quoting In re
United Servs. Auto. Ass’n, 307 S.W.3d 299, 306 (Tex. 2010) (orig. proceeding)).
The requirement that a court must determine whether it has subject-matter
jurisdiction applies to appellate courts just as it does to trial courts. See Pidgeon v.
Turner, No. 15-0688, –S.W.3d–, 2017 WL 2829350, *6 (Tex. June 30, 2017); Thai
Xuan Vill. Condo. Ass’n, Inc. v. Hien Luu, No. 14-15-00873-CV, 2016 WL 6887344,
*2 (Tex. App.—Houston [14th Dist.] Nov. 22, 2016, no pet.) (mem. op.). Thus,
before we can reach the merits of the trial court’s challenged rulings, we first must
determine whether we have jurisdiction to do so.
6
A. Finality of the Trial Court’s Order Approving the Settlement
As part of Susan’s first issue, she challenges the trial court’s March 2, 2016
order approving the settlement—or more precisely, Legacy’s sale of the judgment
against Ronald—both on the merits and on the ground that the trial court lacked
jurisdiction over the case. We have appellate jurisdiction only over final judgments
and over statutorily authorized interlocutory appeals. See Ogletree v. Matthews, 262
S.W.3d 316, 318 n.1 (Tex. 2007). This is not a statutorily authorized interlocutory
appeal, nor do the parties contend otherwise. We therefore lack jurisdiction to
review the March 2, 2016 order unless it is a final order.
Ordinarily, there is only one final judgment in a case. See Ventling v. Johnson,
466 S.W.3d 143, 149 (Tex. 2015) (citing TEX. R. CIV. P. 301). As a rule, a judgment
must dispose of all legal issues between or among all parties to be a final judgment.
See Jack B. Anglin Co. v. Tipps, 842 S.W.3d 266, 272 (Tex. 1992) (orig. proceeding),
superseded by statute on other grounds as stated in In re Santander Consumer USA,
Inc., 445 S.W.3d 216, 218 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding).
Because Ronald’s and Stacy’s claims against Susan remain pending, the trial court’s
order approving the settlement of the Trust’s judgment against Ronald does not
constitute a final order by this definition. There are, however, exceptions to the
general rule that a final, appealable judgment must dispose of all issues and all
parties.
As the Texas Supreme Court held in Huston v. F.D.I.C., “a trial court’s order
that resolves a discrete issue in connection with any receivership has the same force
and effect as any other final adjudication of a court, and thus, is appealable.” 800
S.W.2d 845, 847 (Tex. 1990) (op. on reh’g). Because the trial court’s order
approving the receiver’s sale to Ronald of the Trust’s judgment against him resolved
this discrete issue, the order is a final, appealable judgment. See id. at 848
7
(discussing the policy reasons for concluding that a trial court’s approval and
confirmation of a receiver’s sale of property is a final appealable judgment).
In the remainder of Susan’s first issue, she argues that the trial court lacked
jurisdiction to render its June 2015 order removing her as trustee and appointing a
receiver. Ronald states that Susan’s attempted appeal of that ruling is untimely, and
thus, we lack jurisdiction to review it.1 See Gibson v. Cuellar, 440 S.W.3d 150, 155
(Tex. App.—Houston [14th Dist.] 2013, no pet.). However, Susan’s only complaint
about the June 2015 order is that the trial court lacks jurisdiction over the entire case,
which is the same jurisdictional argument she makes in her timely appeal of the trial
court’s March 2016 order. If Susan is correct and the trial court lacked jurisdiction
over the case, then all of the trial court’s actions are void. Thus, if we can reach
Susan’s argument that the March 2016 order is void for lack of jurisdiction, then our
disposition of that argument applies equally to the trial court’s June 2015 order.
First, however, we must address Ronald’s and Legacy’s remaining challenges to our
own subject-matter jurisdiction.
B. Lack of Mootness
Ronald and Legacy next contend that we lack subject-matter jurisdiction to
review the order approving the settlement because the issue was rendered moot when
the settlement closed. See Matthews ex. rel. M.M. v. Kountze Indep. Sch. Dist., 484
S.W.3d 416, 418 (Tex. 2016) (“The mootness doctrine applies to cases in which a
justiciable controversy exists between the parties at the time the case arose, but the
live controversy ceases because of subsequent events.”); Kessling v. Friendswood
Indep. Sch. Dist., 302 S.W.3d 373, 384 n.9 (Tex. App.—Houston [14th Dist.] 2009,
1
Because Stacy adopted Ronald’s appellate brief, she joins in the arguments we attribute
to Ronald.
8
pet. denied) (explaining that courts lack subject-matter jurisdiction over a moot
claim). Ronald further contends that because Susan’s appeal of the order approving
the settlement is moot, her challenge to the trial court’s denial of her motion to
continue the hearing on the application for approval similarly is moot.
According to Ronald, Susan’s appeal of the order approving the settlement
became moot when the settlement agreement closed because he conveyed to the
Trust his interests in two properties, one of which has been leased to a third party.
Ronald also signed a promissory note and made the first payment of the cash portion
of the settlement. Finally, the receiver filed a satisfaction of judgment. These facts,
however, do not indicate that the appeal is moot.2
An appeal is rendered moot when there ceases to be a live controversy
between the parties such that appellate relief would be futile. See Marshall v. Hous.
Auth. of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). The conveyance of
property can moot an appeal. For example, in Mitchell v. Turbine Resources
Unlimited, Inc., No. 14-15-00417-CV, –S.W.3d–, 2017 WL 1181228, at *5 (Tex.
App.—Houston [14th Dist.] Mar. 30, 2017, pet. filed), the appellant sought reversal
of the trial court’s order authorizing a receiver to sell vehicles in which the appellant
claimed an ownership interest. The appeal became moot when the appellant herself
sold the vehicles and thereby eliminated her claim that she owned them. See id.
Unlike the facts in Mitchell, however, the parties in this case continue to have
a live controversy for which appellate relief potentially is available. The promissory
note can be rescinded; money paid can be refunded; and a “satisfaction of judgment”
can be set aside. Cf. Brown v. Enter. Recovery Sys., Inc., No. 02-11-00436-CV, 2013
2
In determining whether the appeal is moot, we have considered Legacy’s affidavit
concerning events that have transpired while this appeal has been pending. See TEX. GOV’T CODE
ANN. § 22.220(c) (West Supp. 2016).
9
WL 4506582, *1 (Tex. App.—Fort Worth Aug. 22, 2013, pet. denied) (mem. op.)
(reversing in part and remanding, despite the filing of a notice of satisfaction of
judgment). As for the conveyance of real property, the settlement resulted in
conveyances only from Ronald to Legacy, in its capacity as the Trust’s receiver, and
if Susan should prevail, these transactions can be reversed. Although Ronald implies
that the property was leased after he conveyed it, the record shows that the opposite
is true: the lease was effective on July 1, 2015, nearly nine months before Ronald
conveyed the property.
Because the evidence before us does not indicate that anything has been done
that cannot be undone, or that the parties’ dispute about the settlement has ceased to
be a live controversy, we conclude that Susan’s appeal of the order approving the
settlement is not moot.
C. The Denial of Susan’s Motion for a Continuance
In addition to asserting the mootness argument addressed above, Ronald
contends that we lack jurisdiction to review the denial of Susan’s motion to continue
the hearing on Legacy’s application for approval of the settlement agreement
because Susan (1) failed to reduce the trial court’s ruling to writing, and (2) failed to
list the denial of her motion for a continuance in her notice of appeal.
1. Susan’s Failure to Reduce the Trial Court’s Ruling to Writing
Ronald contends that we lack jurisdiction to address this issue because Susan
did not have the denial reduced to a written order, and he asserts that “[c]ourts
dismiss for lack of jurisdiction appeals of oral orders.” In support of this position,
Ronald cites Archer v. Tunnell, No. 05-15-00459-CV, 2016 WL 519632, at *3 (Tex.
App.—Dallas Feb. 9, 2016, no pet.) (mem. op.). We are not bound by Archer, but
even if we were, we would consider Ronald’s reliance on Archer misplaced.
10
In Archer, the Fifth Court of Appeals held that it lacked jurisdiction to review
the denial of a summary-judgment motion and a motion to dismiss or abate. See id.
at *2. The trial court orally denied one of the appellant’s summary-judgment
grounds, but did not rule, orally or in writing, on the appellant’s other summary-
judgment grounds or the motion to dismiss or abate. See id. Our sister court held
that it lacked jurisdiction to review the trial court’s alleged denial of the summary-
judgment motion and the motion to dismiss or abate because “an interlocutory appeal
may be perfected only from a written order, not an oral ruling.” Id. at *3.
We need not decide whether we agree with the Archer court’s reasoning,
because the facts in this case are distinguishable. Here, the trial court announced on
the record that it denied Susan’s motion to continue the hearing on Legacy’s
application for approval of the settlement. The ruling was not required to be reduced
to writing; the oral pronouncement was sufficient. See Dunn v. Dunn, 439 S.W.2d
830, 832 (Tex. 1969); see also TEX. R. CIV. P. 306a(2) (“Judges, attorneys and clerks
are directed to use their best efforts to cause all judgments, decisions and orders of
any kind to be reduced to writing and signed by the trial judge with the date of
signing stated therein.” (emphasis added)). The interlocutory ruling denying Susan’s
motion for continuance was merged into the written final judgment approving the
settlement. See Roccaforte v. Jefferson County, 341 S.W.3d 919, 924 (Tex. 2011)
(“The final judgment necessarily replaced the interlocutory order, which merged into
the judgment . . . .”); In re Newsome, Nos. 14-12-01083-CV and 14-12-01084-CV,
2012 WL 6163124, at *1 (Tex. App.—Houston [14th Dist.] Dec. 11, 2012, orig.
proceeding) (per curiam) (mem. op.) (“An interlocutory order is appealable when it
has merged into a subsequent final, appealable order.”).
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2. Susan’s Failure to List the Denial of the Motion for Continuance in
Her Notice of Appeal
Ronald also asserts that we lack jurisdiction to review the denial of Susan’s
motion for continuance because it is not listed in her notice of appeal. This argument
is contrary to the Texas Rules of Appellate Procedure and to binding precedent from
both the Texas Supreme Court and our own court.
A party is not required to describe in a notice of appeal each interlocutory
ruling to be challenged in the appellate court, but need only “state the date of the
judgment or order appealed from.” See TEX. R. APP. P. 25.1(d)(2); see also Perry v.
Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (“We initially note that the shareholders
were not required to state in their notice of appeal that they were challenging the
interlocutory order granting special exceptions. They were required only to state the
date of the judgment or order appealed from—in this instance the order dismissing
their suit.”); Valls v. Johanson & Fairless, L.L.P., 314 S.W.3d 624, 631 n.7 (Tex.
App.—Houston [14th Dist.] 2010, no pet.) (“A notice of appeal need not identify
every adverse interlocutory ruling the appellant intends to challenge; instead, the
notice must state only the date of the judgment or order from which he appeals—in
this case, the order granting summary judgment.”).
Because Susan complied with Texas Rule of Appellate Procedure 25.1(d)(2)
by stating in her notice of appeal her intent to appeal the trial court’s final order
signed on March 2, 2016, she invoked our jurisdiction not only to review that order
but also to address interlocutory rulings that were merged into it.
In sum, we have jurisdiction to consider Susan’s appeal of the trial court’s
written order granting Legacy’s application for approval of the settlement agreement
and the trial court’s oral ruling denying Susan’s motion for a continuance of the
hearing on that application. We now turn to Susan’s first issue, in which she argues
12
that the statutory probate court’s order approving the settlement agreement is void
because the trial court lacked jurisdiction over the case.
IV. THE STATUTORY PROBATE COURT’S JURISDICTION
The existence of subject-matter jurisdiction is a question of law, which we
review de novo. See Rhule, 417 S.W.3d at 442. Susan’s argument that the trial court
lacked jurisdiction turns on a question of statutory construction, which likewise
presents a question of law subject to de novo review. See In re M.G.N., 441 S.W.3d
246, 248 (Tex. 2014) (per curiam).
Susan contends that the statutory probate court lacked jurisdiction over these
proceedings because the pleadings show that Ronald and Stacy sued to remove
Susan as trustee and hold her liable for breach of fiduciary. Citing section 115.001
of the Texas Trust Code, she argues that the district court has original, exclusive
jurisdiction over all proceedings to remove a trustee or to determine a trustee’s
liability. See TEX. PROP. CODE ANN. § 115.001(a)(3) (West 2014) (district court’s
jurisdiction over actions to appoint or remove a trustee); id. § 115.001 (a)(4) (district
court’s jurisdiction over actions to determine a trustee’s “powers, responsibilities,
duties, and liability”). Susan acknowledges that statutory probate courts have
concurrent jurisdiction with district courts over actions by or against a trustee and
actions involving testamentary trusts, see TEX. EST. CODE ANN. § 32.007(2), (3)
(West 2014), but she maintains that a statutory probate court can exercise that
jurisdiction only when a probate proceeding is actually pending. She contends that
no probate proceeding was pending when the statutory probate court granted
Legacy’s application to approve the Trust’s settlement agreement with Ronald, and
thus, the order is void for lack of jurisdiction. Our review of the legislative
framework for a statutory probate court’s jurisdiction shows that the court’s trust
jurisdiction is independent of its probate jurisdiction.
13
We begin, as Susan does, with section 115.001 of the Texas Trust Code.
Although Susan is correct in stating that section 115.001 gives a district court
original, exclusive jurisdiction over proceedings to remove a trustee or to determine
a trustee’s liability, section 115.001 also provides that statutory probate courts are
an exception to this general rule. Section 115.001(a) states, “Except as provided by
Subsection (d) of this section, a district court has original and exclusive jurisdiction
over all proceedings by or against a trustee and all proceedings concerning
trusts . . . .” (emphasis added). Turning to subsection (d), we note the provision
reads, “[t]he jurisdiction of the district court is exclusive except for jurisdiction
conferred by law on . . . a statutory probate court . . . .” Id. § 115.001(d)(1)
(emphasis added). The trial court in this case was Harris County Probate Court No.
2, which is a statutory probate court. See TEX. GOV’T CODE ANN. § 25.1031 (West
Supp. 2016). Thus, if the law confers jurisdiction on a statutory probate court to
hear actions against a trustee or actions involving testamentary trusts, then Harris
County Probate Court No. 2 had jurisdiction over the case.
In section 32.006 of the Texas Estates Code, the legislature expressly
conferred on statutory probate courts the jurisdiction to hear actions involving
testamentary trusts and actions in which a trustee is a party:
In a county in which there is a statutory probate court, the statutory
probate court has jurisdiction of:
(1) an action by or against a trustee;
(2) an action involving an inter vivos trust, testamentary trust, or
charitable trust . . . .
TEX. EST. CODE ANN. § 32.006 (West 2014). See also id. § 32.007 (stating that a
statutory probate court and a district court have concurrent jurisdiction over such
actions). Thus, under the unambiguous language of these statutes, Harris County
Probate Court No. 2 had jurisdiction over this suit.
14
Susan nevertheless contends a statutory probate court’s jurisdiction over trust
matters “is limited.” As support for this proposition, she relies on Texas Estates
Code section 32.001:
(a) All probate proceedings must be filed and heard in a court
exercising original probate jurisdiction. The court exercising
original probate jurisdiction also has jurisdiction of all matters
related to the probate proceeding as specified in Section 31.002
for that type of court.
(b) A probate court may exercise pendent and ancillary jurisdiction
as necessary to promote judicial efficiency and economy. . . .
Id. § 32.001(a), (b) (emphasis added). Section 31.002, referenced above, describes
the types of actions constituting “a matter relating to a probate proceeding,” and
those actions differ depending on whether the court exercising jurisdiction is a
statutory probate court, a county court at law exercising original probate jurisdiction,
or neither. See id. § 31.002. Regarding a statutory probate court, which is the “type
of court” at issue here, section 31.002 provides that “a matter related to a probate
proceeding” includes the “administration of a testamentary trust if the will creating
the trust has been admitted to probate in the court.” See id. § 31.002(b)(2), (c)(1).
A plain reading of these sections reveals that they do not limit a probate
court’s jurisdiction. To the contrary, section 32.001 expands the jurisdiction of a
court that is exercising original probate jurisdiction over a probate proceeding, so
that the same court in which the probate proceeding is pending also has jurisdiction
over matters related to the probate proceeding. But, if no probate proceeding is
pending, then section 32.001 (with its incorporation of section 31.002) does not
apply.
Susan contends that the probate proceeding concerning her mother’s estate
closed many years ago, and although we assume, without deciding, that Susan is
correct, the absence of a pending probate proceeding does not deprive a statutory
15
probate court of its independent jurisdiction over testamentary-trust actions. In
actions concerning testamentary trusts, the statute’s text does not limit the statutory
probate court’s jurisdiction. See id. § 32.006.
Our conclusion that a statutory probate court has jurisdiction over “an action
involving an inter vivos trust, testamentary trust, or charitable trust” as
unambiguously stated in Texas Estates Code section 32.006, is unaffected by the
authorities Susan cites concerning proceedings “appertaining to or incident to an
estate.” The authorities on which Susan relies deal with the conditions in which a
court exercising original probate jurisdiction can exercise jurisdiction over related
or ancillary matters; they do not address a statutory probate court’s independent
jurisdiction over trust actions.3 Indeed, Susan herself maintains that the case before
us is not a proceeding “appertaining to or incident to an estate”; thus, her reliance on
3
See, e.g., TEX. EST. CODE ANN. § 36.001 (defining the term “probate proceeding”); Valdez
v. Hollenbeck, 465 S.W.3d 217, 224 n.8 (Tex. 2015) (explaining that “[t]he heirs initially filed
their lawsuit in the original probate proceeding as a suit appertaining and incident to a probate
estate under [the predecessor statute] section 5A of the Probate Code,” under which “a probate
proceeding must be pending for a probate court to exercise jurisdiction over matters related to that
proceeding”); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 506 (Tex. 2010) (holding that a
probate court lacked jurisdiction over a proceeding to declare heirship because a “court empowered
with probate jurisdiction may only exercise its probate jurisdiction over matters incident to an
estate when a probate proceeding related to such matters is already pending in that court”
(emphasis added) (quoting Bailey v. Cherokee Cty. Appraisal Dist., 862 S.W.2d 581, 585 (Tex.
1993))); In re John G. & Marie Stella Kenedy Mem’l Found., 315 S.W.3d 519, 522 (Tex. 2010)
(orig. proceeding) (quoting the same language from Bailey); Goodman v. Summit at W. Rim, Ltd.,
952 S.W.2d 930, 933 (Tex. App.—Austin 1997, no pet.) (citing Bailey); In re Estate of Hanau,
806 S.W.2d 900, 904 (Tex. App.—Corpus Christi 1991, writ denied) (“The trial court has power
to hear all matters incident to an estate only in those instances where a probate proceeding, such
as the administration of an estate, is actually pending in the court in which the suit is filed, relating
to a matter incident to that estate.” (emphasis added) (citing Interfirst Bank–Hous. v. Quintana
Petroleum Corp., 669 S.W.2d 864, 873 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.)));
Pullen v. Swanson, 667 S.W.2d 359, 363 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.)
(stating that a statutory probate court’s jurisdiction “to hear all matters incident to an estate
necessarily presupposes that a probate proceeding is already pending in that court” (emphasis
added)).
16
case law addressing a statutory probate court’s jurisdiction over proceedings
“appertaining to or incident to an estate” is misplaced.
We overrule Susan’s first issue.
V. CHALLENGE TO THE MERITS OF THE ORDER APPROVING THE SETTLEMENT
In an appeal from a trial court’s grant of a receiver’s application for approval
of a settlement, we review the ruling for abuse of discretion. See Ace Prop. & Cas.
Ins. Co. v. Prime Tempus, Inc., No. 03-06-00236-CV, 2009 WL 2902713, at *2 (Tex.
App.—Austin Aug. 26, 2009, no pet.) (mem. op.). The challenged ruling constitutes
an abuse of discretion if it was made arbitrarily, unreasonably, or without reference
to any guiding rules and principles. See Crawford v. XTO Energy, Inc., 509 S.W.3d
906, 911 (Tex. 2017). A trial court does not abuse its discretion if it based its
decision on conflicting evidence, some of which supports its decision. See Unifund
CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009) (per curiam). On the other
hand, the trial court abuses its discretion if its ruling is contrary to the only
permissible view of the probative, properly admitted evidence. Id.
A. The Incomplete Record
Before reaching the merits of the argument, we must settle an issue Ronald
raises concerning the state of the reporter’s record. According to Ronald, the
reporter’s record before us is incomplete, and we therefore must presume that the
omitted material supports the trial court’s ruling and summarily affirm. See In re
J.A.T., 502 S.W.3d 834, 836 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“[I]n
the absence of an agreement between the parties or a statement of the appellant’s
issues to be presented on appeal, ‘we must presume that the omitted portions of the
record are relevant and would support the judgment.’” (quoting Mason v. Our Lady
17
Star of the Sea Catholic Church, 154 S.W.3d 816, 822 (Tex. App.—Houston [14th
Dist.] 2005, no pet.))).
Ronald contends that the reporter’s record is incomplete because Susan did
not ask that the court reporter include in the appellate record a transcript of a hearing
that took place on June 18, 2015. Ronald maintains that a transcript of that
proceeding was necessary because during the March 2, 2016 hearing on the
application to approve the settlement, his attorney said, “I’ll ask the Court to take
judicial notice of the proceeding in this Court on June 18, 2015 and the evidence that
was offered,” and the trial court responded, “So noted.” Because a transcript of that
proceeding is not in the record, Ronald argues that we must presume the evidence
offered during the June 18, 2015 hearing is relevant and supports the judgment.
Although Susan filed a reply brief after Ronald pointed out this omission, she did
not respond to this argument.
We agree that the presumption applies. See id. But, even if it did not, we still
would conclude that the record before us supports the trial court’s approval of the
settlement agreement.
B. The Terms of the Settlement Agreement
At the hearing, the parties agreed that as of February 26, 2002, the amount of
the outstanding judgment and post-judgment interest Ronald owed the Trust was
$6,128,326.99, and that if interest had continued to accrue without interruption up
to the time of the hearing, the amount of Ronald’s outstanding debt would have been
about $24 million. It is undisputed, however, that Ronald paid the Trust $8 million
in the summer of 2015, so that the $24 million figure overstates the amount owed by
18
at least 50%.4 The value that the Trust received in exchange for the judgment against
Ronald included (1) money; (2) interests in real property; (3) the release of various
claims; and (4) Ronald’s execution of an “Agreement Respecting Certain
Prospective Real Estate Acquisitions” and an “Agreement Respecting Conduct of
the Litigation.”
1. The Monetary Part of the Settlement Agreement
Ronald agreed to pay the Trust $4 million at 4% interest over two years. As
Susan admits in her brief, Ronald made the first payment 90 days before it was due.
2. Conveyance of Ronald’s Interests in Real Property
The settlement agreement called for Ronald to convey to the Trust his
undivided 25% interest in two properties, River Bend Farm and Cap Rock Ranch.
River Bend Farm’s appraised value is $3.5 million, and Naumes testified that
Ronald’s interest in the property could be worth as much as a million dollars.
Although Susan asserts that the conveyance of Ronald’s interest in River Bend Farm
“was of little or no value because the Trust already owned the interest,” she does not
support this statement. The evidence instead shows that Susan and Ronald each
owned an undivided 25% interest in the farm, and the Trust owned the remaining
undivided 50% interest. While Susan was trustee, the taxes on the property became
delinquent, and the taxing authorities sued Susan, individually and in her capacity
as trustee of the Trust, and Ronald. No one answered the suit, and the taxing
authorities foreclosed on Ronald’s interest to satisfy the default judgment against
him for $11,334.63. After the sale, Susan, in her capacity as trustee, redeemed it,
4
Because post-judgment interest compounds annually, one cannot arrive at the total
amount owed simply by subtracting from $24 million the amounts that have been paid or that
otherwise should have been credited. See TEX. FIN. CODE ANN. § 304.006 (West 2016).
19
and the Trust received the excess proceeds from the sale. At the hearing for approval
of the settlement agreement, Ronald’s counsel stated, “When you redeem the
property of a co-tenant under the Texas statute, you restore the title to the parties
prior to the tax sale.” The trial court responded, “I know the law. That’s a correct
statement of it.”5 Although Susan states in her brief that “[t]he legal effect of the
redemption by the Trust of Ronald’s 25% in the River Bend Farm is in dispute,” she
presents no grounds for disputing the trial court’s implied finding that Ronald owned
a 25% undivided interest in the property at the time of the settlement agreement.
The settlement agreement also requires Ronald to convey to the Trust his
undivided 25% interest in the 6,431-acre Cap Rock Ranch. Legacy had Cap Rock
Ranch appraised during the settlement negotiations, but did not state its appraised
value on the record.
3. Released Claims
A third component of Ronald’s consideration for his purchase of the Trust’s
judgment against him concerned the release of the following claims against the
Trust.
(a) Claims for damages, interest, or other expenses due to the
untimely distribution of his share of the Trust’s net income
actually collected before December 31, 2013
Ronald’s claims against the Trust for damages due to the delay in distributing
his share of the Trust’s net income include at least two elements.
5
See Poenisch v. Quarnstrom, 361 S.W.2d 367, 372 (Tex. 1962) (“The general rule is that
when a cotenant redeems property from a tax foreclosure sale, such action is considered as being
for the benefit of all co-owners. . . . . The redemption of the property could at most give rise to
some claim for contribution . . . . (citations omitted)).
20
The first element is represented by the taxes that Ronald was required to pay
on income that was attributed to him, but not paid. According to the evidence
presented at the hearing, Susan, in her capacity as trustee, reported that the Trust
made distributions to Ronald, when in fact, he received nothing. Ronald
nevertheless was required to pay taxes on the income attributed to him. Naumes
stated at the hearing that he believed the amount Ronald paid was under $500,000.
The second element of the claim consists of damages from delayed
distributions of income that should have been made to Ronald, but that were not
reported even as fictitious distributions. According to Naumes, this component of
the claim could run into the millions of dollars. The amount cannot be definitely
ascertained because Susan—in violation of a court order—has refused to provide
Trust records. There is, however, some circumstantial evidence. For example,
records that Legacy has been able to obtain from financial institutions show that
while Susan was trustee she made distributions to herself and her daughter of at least
$2.3 million, but made no distributions to Ronald or his daughter. Susan and Ronald
hold identical interests in Trust income, as do Stacy and Gibson, so if Susan were
entitled to distributions, then Ronald would have been entitled to distributions at the
same time and in the same amount.
Due to Susan’s refusal to cooperate in reconstructing fourteen years’ worth of
Trust financial information, Naumes estimates the costs of forensic accounting and
legal fees to definitively determine the amount due to Ronald would run into the
millions. This is supported by the $3 million in trial-level legal fees incurred by the
parties in Lee I and the further $800,000 in legal fees assessed by the trial court in
the event of an appeal.6 Moreover, Naumes testified that in the years since Lee I was
6
See Lee I, 47 S.W.3d at 775, 797.
21
tried, both the rates charged by the attorneys and the number of attorneys involved
in this litigation have increased.
(b) Claims regarding the calculation of the Judgment and
interest
Ronald claims that the post-judgment interest of “the Judgment” (defined in
the settlement agreement as the 1996 judgment in Lee I, as modified by the 2001
decision in the appeal of that case and reflected in the appellate court’s 2002 mandate
and in the trial court’s 2012 order reviving the dormant judgment) has been
calculated incorrectly. The record shows that in 2002, Ronald contacted Susan’s
attorney Zabel with a plan to pay the judgment in full by assigning to the Trust (1) his
interests in the same two properties he conveyed as part of the settlement agreement;
and (2) his beneficial interest in income distributions from the Trust until the
judgment was satisfied. Ronald’s counsel believed that the distributions due to
Ronald upon the sale of the properties would substantially satisfy the judgment, but
if a balance remained after the sale, the difference would be satisfied by cash loaned
from Stacy’s separate trust. Neither Zabel nor Susan ever responded. Ronald claims
that, given his offer to temporarily assign his interest in income distributions to the
Trust, and the Trust’s failure to distribute any income to him, the accrual of post-
judgment interest should have been suspended, or at least reduced by the amount of
income that should have been distributed to him. Naumes testified that settling such
claims would be more beneficial to the Trust than incurring the costs of litigating
them.
(c) Claims related to the allocation of Trust receipts and
expenses between principal and income prior to December
31, 2013
Ronald was entitled to distributions of the Trust’s current net income, and he
claims Susan reduced the Trust’s net income by the way in which she allocated Trust
22
receipts and expenses between principal and income. This is another area in which
Naumes was concerned about the costs to the Trust of accurately reconstructing its
financial history during the time Susan was the trustee. According to Naumes, “[W]e
would do forensic accounting for the rest of our lives to determine whether or not
the allocation of principal [and] income was right.”
(d) Claims for trustee’s fees and Trust expenses due to Ronald,
or incurred and paid by him, before June 30, 2015
Naumes testified that Ronald paid for all of a property’s costs while he owned
an interest in it; however, no evidence was introduced about the amount of those
costs.7
(e) Additional released claims
There is less evidence about other claims that Ronald released as part of the
settlement agreement. These additional claims, some of which appear to duplicate
claims already mentioned, are as follows:
 Claims for payment of income from revenue collected by the Trust before
December 31, 2014, to the extent that amounts payable for his health,
maintenance, and support exceeded his one-third share of the Trust’s net
income;
 Claims for attorney’s fees Ronald incurred before June 30, 2015, to the extent
that such claims had not already been reimbursed by Legacy;
 Claims for attorney’s fees Ronald incurred in connection with the settlement
agreement or the Judgment;
 Claims that the Judgment is dormant or unenforceable;
 Claims to equitably reform the Judgment based on the inequitable or improper
accrual of interest; and
7
From the tax suit, we also know that Ronald did not always timely pay the taxes on his
interest in River Bend Farm.
23
 Claims “for damages suffered on account of [Ronald’s undivided 25%
interest] in River Bend Farm.”
4. Additional Agreements
The settlement also included two additional agreements.
In the “Agreement Respecting Certain Prospective Real Estate Acquisitions,”
Ronald agreed to the Trust’s proposed purchase of Susan’s undivided 25% interests
in the Cap Rock Ranch and Rim Rock Ranch properties for not more than $3.4
million, and to the Trust’s proposed purchase of Susan’s undivided 25% share of the
River Bend Farm for a price not to exceed its appraised value. Naumes explained
that obtaining Ronald’s approval of these proposed purchases was intended to
eliminate the risk of suit if Legacy converted “an earning asset into what may
become an un-earning asset.” Naumes also stated that it would be of great value to
the Trust if Legacy could unite the undivided interests in the property, and that the
Trust would benefit if Ronald were not able to “blackball” those acquisitions. There
is no evidence about whether Susan would agree to sell her share of the properties
to the Trust.
In the “Agreement Respecting Conduct of the Litigation” in this case, Legacy,
Ronald, and Stacy agreed that at least a portion of Ronald’s and Stacy’s claims
against Susan would benefit the Trust. To avoid duplicating their efforts and
multiplying its own attorney’s fees, Legacy agreed that (a) Ronald’s counsel would
take the lead in pursuing those claims; (b) Stacy’s counsel would take secondary
responsibility for pursuing their claims while avoiding duplication of the work of
Ronald’s counsel; (c) Legacy would reimburse Ronald $500,000 and Stacy
$100,000 for their reasonable and necessary attorney’s fees and litigation expenses;
and (d) if Ronald or Stacy believe that additional reasonable and necessary
attorney’s fees and litigation expenses should be incurred, then that person can
24
request advance approval for the additional expenditures, which approval Legacy
will not unreasonably withhold. In return, Ronald and Stacy agreed that Legacy was
not obliged to them to prosecute the Trust’s claims against Susan for breaches of her
obligations to the Trust while serving as its trustee.8
C. Ronald’s and Legacy’s Evaluation of the Settlement Agreement
According to Naumes, Legacy believes that the settlement is in the best
interest of the Trust and the Trust’s four beneficiaries, and is “absolutely” a better
deal for the Trust than attempting to collect the full amount of the judgment and
accrued interest in an adversarial proceeding. Naumes testified that in evaluating
the settlement, Legacy did not assign specific dollar values to each of Ronald’s
claims, but instead evaluated the settlement agreement as a whole and concluded
that the exchange was fair and equitable. Naumes further stated that after reviewing
Ronald’s tax returns and extensively interviewing him about his assets, holdings,
separate property, and community property, Naumes believes that the settlement
represents the most that Legacy can expect to obtain from Ronald. Ronald similarly
testified that the full amount of the Trust’s judgment against him, including post-
judgment interest, exceeds his net worth.
D. Susan’s Arguments on the Merits of the Settlement Agreement
Susan contends that the trial court abused its discretion in approving the
settlement because the trial court (a) applied the wrong standard by relying “on its
own view of continued litigation,” (b) lacked sufficient evidence to determine the
merits of Ronald’s released claims or of the Trust’s best interests, and (c) approved
8
As previously mentioned, the trial court authorized Legacy to sue to recover Trust assets
or to recover damages suffered by the Trust, “provided, however, that the Receiver shall have
discretion not to pursue litigation against [Susan] that is undertaken by beneficiaries of the Trust
for the benefit of the Trust.”
25
the settlement for only half of the judgment’s value without determining the merits
of the claims Ronald released. We examine each of these arguments in turn.
1. The Trial Court’s Reliance “Upon Its Own View of Continued
Litigation”
Susan argues that the trial court “abused its discretion by approving the
settlement based upon its own view of continued litigation.” In support of this
argument, Susan relies on Webre v. Black, 458 S.W.3d 113 (Tex. App.—Houston
[1st Dist.] 2015, no pet.). In that case, the First Court of Appeals reversed a trial
court’s approval of a settlement between the court-appointed guardian of a ward’s
estate and the ward’s former attorney-in-fact, who allegedly had engaged in
transactions that were presumptively unfair to the estate. See id. at 118–19. The
trial court approved the settlement based on the stated view that it was not in the
interest of the 87-year-old incompetent ward to continue litigating a dispute that
would not personally benefit the ward, regardless of whether the litigation would
benefit the ward’s estate. See id. at 114, 116–18. The appellate court reversed
because the trial court was required by statute to consider whether the settlement
was in the best interest of the ward’s estate, but instead excluded evidence on that
issue and considered only whether the settlement was in the best interest of the ward
himself. See id. at 119–20 (citing former TEX. PROB. CODE § 774(a)(4)).
Webre is distinguishable from the case at hand. Here, the trial court excluded
no evidence, and there is no evidence that the trial court failed to consider whether
the settlement was in the best interests of the Trust or its beneficiaries.
We also disagree with Susan’s implication that avoiding the costs of litigation
can never be a valid consideration in evaluating a settlement agreement. Here, the
evidence presented at the hearing showed that, in light of Susan’s stonewalling of
efforts to reconstruct the Trust’s financial history, attempting to exactly quantify the
26
amount that Ronald owes would increase the Trust’s expenses, which would reduce
its current net income to the prejudice of all of its beneficiaries. While the delay in
litigating that issue could allow post-judgment interest to continue accruing at
Ronald’s expense, neither the Trust nor its beneficiaries would benefit from such
delay if—as Ronald and Naumes testified—the full amount of post-judgment that
has accrued (if no credits are applied toward it) already exceeds Ronald’s net worth.
2. The Sufficiency of the Evidence on Which to Decide Whether the
Settlement Is in the Trust’s Best Interest
Susan next contends that the trial court lacked sufficient evidence on which to
exercise its discretion. We disagree. Although we will not repeat our summary of
the major points of the evidence drawn from our review of the approximately 600-
page reporter’s record, we are confident that the information we have summarized
was sufficient to allow the trial court to evaluate the settlement agreement.
In arguing that this evidence was inadequate to permit the trial court to
evaluate the settlement agreement, Susan relies on In re Rains, 473 S.W.3d 461 (Tex.
App.—Amarillo 2015, no pet.). Rains concerned a settlement under the Structured
Settlement Protection Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 141.001–
.007. The Act requires a factoring company to obtain court approval before it can
purchase a person’s right to receive tax-free payments of a structured settlement.
See id. § 141.004. No such purchase is at issue here.
Susan nevertheless contends that the factors the Rains court considered in
reviewing a trial court’s approval of the transfer of structured-settlement payment
rights applies by analogy to our review of the trial court’s ruling approving the
settlement at issue here. But, even in the context of the Structured Settlement
Protection Act, we expressly declined to follow Rains because its eighteen-factor
analysis “take[s] the court’s analysis well beyond the scope of the inquiry
27
authorized.” Metro. Life Ins. Co. v. Structured Asset Funding, LLC, 501 S.W.3d
706, 720 (Tex. App.—Houston [14th Dist.] 2016, no pet.). That conclusion applies
with even more force here, where some of the factors considered in Rains are plainly
inapplicable. For example, it is not possible to consider the Trust’s “future yet
reasonably foreseeable domestic, economic, physical, medical, and educational
needs,” its “age, education, and acumen,” or its “business or financial acumen.” See
Rains, 473 S.W.3d at 464.
3. The Trial Court’s Failure to Determine the Merits of Ronald’s
Released Claims
In her last challenge to the merits of the trial court’s decision, Susan contends
that the trial court failed to determine the merits of Ronald’s released claims and that
the court approved the settlement of the judgment against Ronald “for only one-half
its value.” Some of the problems with these arguments are self-evident.
First, to obtain a trial court’s determination of the merits of a claim is to litigate
that claim, which is the very object that a settlement is intended to avoid. The record
nevertheless is sufficient to allow the trial court to conclude that the Trust had net
income that should have been distributed to Ronald while Susan was trustee, and
that if the issue were litigated, Ronald’s debt to the Trust would be offset to some
degree by the Trust’s debt to Ronald. The delay required to determine the extent of
the offset (1) would prejudice Ronald because post-judgment interest of 10% per
annum, compounded annually, would continue to accrue during that time;9 and
(2) would not benefit the Trust, because even if Ronald were entitled to no offset, he
still could not pay the full amount of the judgment. Naumes not only testified that
9
See TEX. FIN. CODE ANN. § 304.006. The post-judgment interest Ronald owed to the
Trust would outstrip the pre-judgment interest accruing on any debt that the Trust owed to him,
because pre-judgment does not compound. See id. § 304.104.
28
Ronald does not have the financial ability to pay the judgment, but also stated, “I
don’t believe that I could have gotten another nickel out of him.” Obtaining a release
of the claims, however, saves the Trust the expense of litigating them.
Second, the trial court does not have a “line-item veto” of the claims released
in the settlement agreement, but must approve or reject the settlement agreement as
a whole. Moreover, even if some of Ronald’s claims are valueless, the Trust is not
harmed by their release.
Third, although Susan characterizes the settlement as a sale of the judgment
against Ronald for less than half of its value, this is not supported by the record. The
Trust received an $8 million payment; an additional $4 million payable over two
years; the conveyance of a 25% interest in a property appraised for $3.5 million, and
for which Ronald’s share may be worth as much as $1 million; and the release of a
claim for around $500,000 for taxes he was required to pay on income previously
attributed to him but which he never received. Based on Susan’s distributions to
herself and her daughter of about $2.3 million and the fact that both Susan and
Ronald each are entitled to a distribution of the 1/6th of the Trust’s current net
income, Ronald also may be entitled to delay damages from past-due multi-million-
dollar distributions. These amounts total more than $15 million, which is
considerably more than half of the value of the Trust’s judgment against Ronald.
Moreover, the judgment’s post-judgment interest is compounded annually, so if any
of the amounts that the Trust owed Ronald should have been credited against the
accrual of post-judgment interest, then those amounts would further reduce the
amount of post-judgment interest that continued to compound. Consequently, the
value of the Trust’s judgment against Ronald after any offsets cannot be precisely
determined without knowing what amounts should have been distributed, and when
Ronald should have been paid. Thus, the inability to more exactly quantify the value
29
of Ronald’s released claims is due in part to Susan’s failure to provide Legacy with
the Trust’s financial information as she was ordered to do.
On this record, we cannot say that the trial court abused its discretion in
approving the settlement. We overrule Susan’s second issue.
VI. DENIAL OF SUSAN’S MOTION FOR A CONTINUANCE
When a party moves for a continuance to conduct discovery, we review the
denial of the motion for a clear abuse of discretion. See Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 161 (Tex. 2004). The Texas Rules of Civil Procedure
specify that no motion for a continuance shall be granted “except for sufficient cause
supported by affidavit, or by consent of the parties, or by operation of law. TEX. R.
CIV. P. 251. When reviewing the ruling on the merits, some of the factors we
consider include “the length of time the case has been on file, the materiality and
purpose of the discovery sought, and whether the party seeking the continuance has
exercised due diligence to obtain the discovery sought.” See id. First, however, the
record must show that the complainant complied with the rules governing a motion
for continuance. See Brown v. Gage, 519 S.W.2d 190, 192 (Tex. Civ. App.—Fort
Worth 1975, no writ).
If a first motion for continuance is sought to obtain testimony, then
[the movant] shall make affidavit that such testimony is material,
showing the materiality thereof, and that he has used due diligence to
procure such testimony, stating such diligence, and the cause of failure,
if known; . . . and, if it be for the absence of a witness, he shall state the
name and residence of the witness, and what he expects to prove by
him; and also state that the continuance is not sought for delay only, but
that justice may be done . . . .
TEX. R. CIV. P. 252.
30
Susan’s motion did not meet these requirements. She asked for a continuance
of “at least 90 days” to “conduct discovery to determine” the following:
(i) Legacy’s valuation of the Judgment;
(ii) what, if any, credits Ronald Lee claims he is entitled to;
(iii) Ronald Lee’s ability to pay the Judgment in full;
(iv) what, if any, other consideration Ronald Lee is providing under
the terms of the settlement;
(v) what claims are the subject of the releases given by Ronald Lee
to Legacy under the settlement; and
(vi) why the settlement is in the best interest of the Trust as alleged
by Legacy.
Susan attached to the motion only the verification of her attorney Daniel J. Sheehan,
who attested that he had read the motion and that the statements it contained were
true and correct.
Susan did not identify in her motion the discovery she planned to conduct, or
indeed, why discovery was necessary at all. All of the information she identified in
her motion was either incorporated in Legacy’s application for approval of the
settlement or was presented at the hearing. At the close of the evidence, the trial
court asked Sheehan what discovery Susan needed and whom the attorney wished
to depose. Sheehan responded, “[O]bviously, we have a pretty good record on Mr.
Naumes. But I think that Tom Zabel should have an opportunity to testify in some
capacity.” Zabel, however, is one of Susan’s attorneys. As her agent, not only is he
subject to Susan’s control, but he also was served with Legacy’s application for
approval of the settlement agreement. If his testimony was wanted, he had only to
attend the hearing, without need of a continuance.
We overrule this issue.
31
VII. CONCLUSION
The statutory probate court properly exercised its trust jurisdiction over this
suit, and thus, none of its challenged orders are void for lack of jurisdiction.
Moreover, the record does not show that the trial court abused its discretion in
approving the Trust’s receiver’s application for approval of its settlement agreement
with Ronald Lee Jr. or in denying Susan Lee’s motion for a continuance.
We affirm the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
32