RICHARD KIENINGER, FROM A DISTRICT COURT APPELLANT, v. THE ADELPHI ORGANIZATION, APPELLEE


COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00441-CV
RICHARD KIENINGER,                         FROM A DISTRICT COURT

        APPELLANT,

v.

THE ADELPHI ORGANIZATION,

        APPELLEE. OF DALLAS COUNTY, TEXAS


BEFORE JUSTICES STEWART, ROWE AND BURNETT
OPINION BY JUSTICE STEWART
FEBRUARY 7, 1989
        The Adelphi Organization sued Richard Kieninger to terminate a trust for the benefit of the Adelphi Organization or, in the alternative, to remove Kieninger as trustee. The trial court denied the Adelphi Organization's motion for summary judgment as to termination of the trust, but granted the motion for removal of Kieninger as trustee, on the grounds of the cy pres doctrine. In three points of error, Kieninger contends that the trial court erred in removing him as trustee and in ordering him to pay the Adelphi Organization's attorney's fees. We agree that the summary judgment was improper. Accordingly, we reverse and remand.
        The summary judgment proof established that the Adelphi Organization is a church formed as a Texas non-profit corporation for religious and educational purposes. The Organization was founded by Kieninger, and members of the organization were required to be in agreement with the objectives and Christian philosophy presented in a book written by Kieninger.
        The Adelphi Land Trust was set up as a charitable trust, with the settlor and the beneficiary being the Adelphi Organization, and the sole trustee being Kieninger. The Land Trust owned 78.389 acres of land, taken in Kieninger's name as trustee. The purpose of the trust is set out in the trust agreement as follows:
    The purpose of this trust is to utilize the present and future assets of the trust for the sole benefit of the Adelphi Organization, a religious not-for-profit corporation. The assets of the trust shall be utilized for the promotion and advancement of the goals and purposes of the Adelphi Organization. No benefit resulting from the establishment of this trust shall accrue to any individual, group or entity except the Adelphi Organization. The utilization of the trust assets for the sole benefit of the Adelphi Organization and for the promotion and advancement of its goals and purposes shall specifically include, but not be limited to, the development of a planned residential community of members of the Adelphi Organization. Said development shall be a non-profit enterprise.
Pursuant to the trust agreement, a member of the Adelphi Organization could purchase a lot in the 78.389 tract held by the trust if the Adelphi Community Cooperative approved the application. Seven members of the Adelphi Organization had purchased lots at the time of the summary judgment motion.
        In his affidavit, E. Lee Gilbert, Jr., president and chairman of the board of directors of the Adelphi Organization, averred that Kieninger had agreed to resign from membership and all positions with the Adelphi Organization. This agreement was confirmed by a letter from Kieninger, in which he stated that he was resigning from membership and from certain positions in the Organization. Kieninger refused, however, to resign from his position as trustee of the Land Trust when requested to do so.
        Gilbert averred further that Kieninger's refusal to relinquish his position as trustee had:


    frustrated the only legitimate purpose of the alleged trust to establish a residential community because [the Organization's] members object strongly to [Kieninger's] continued personal control and do not want to live in a residential community where the land is controlled by [Kieninger] as former chairman and former member of [the Organization]. Thus the development of the community has been brought to a standstill.        
Attached to Gilbert's affidavit were two resolutions passed by a majority of the membership of the Adelphi Organization which expressed agreement with the Board's attempts to remove Kieninger as trustee and stated that "the majority of The Adelphi Organization membership is unwilling to purchase property to build homes under any arrangement controlled by Richard Kieninger."
        In its motion for summary judgment, the Adelphi Organization sought Kieninger's removal under the doctrine of cy pres. As embodied in statute, the cy pres doctrine allows a court to change a trustee if the purposes of the trust have become impossible to fulfill. TEX. PROP. CODE ANN. § 112.054(a)(1) (Vernon Supp. 1989). The summary judgment in this case is proper only if competent summary judgment proof establishes that the purposes of the land trust were impossible to fulfill.
        Summary judgment evidence, whether offered through depositions, affidavits, or interrogatories, must be presented in a form that would be admissible in a conventional trial proceeding. Hidalgo v. Surety Sav. & Loan Ass's, 462 S.W.2d 540, 545 (Tex. 1972); Friday v. Grant Plaza Huntsville Associates, 713 S.W.2d 755, 756 (Tex. App.--Houston [1st Dist.] 1986, no writ). Thus, affidavits may not be based on hearsay. See Butler v. Hide-A-Way Lake Club, Inc., 730 S.W.2d 405, 411 (Tex. App.--Eastland 1987, writ ref'd n.r.e.). Documents relied on to support a summary judgment must also comport with the rules of evidence; thus, business records which are not properly proven cannot support a summary judgment. Travelers Construction, Inc. v. Warren Brothers Co., 613 S.W.2d 782, 785-86 (Tex. Civ. App.--Houston [14th Dist.] 1981, no writ). Further, affidavits must set forth facts, not conclusions. Beta Supply, Inc. v. G.E.A. Power Cooling Systems, Inc., 748 S.W.2d 541, 542 (Tex. App.--Houston [1st Dist. ] 1988, writ denied).
        We hold that Gilbert's statement that Kieninger's refusal to relinquish the trusteeship had "frustrated the only legitimate purpose of the alleged trust," is not competent summary judgment proof. The statement is not a factual assertion but is, rather, an inadmissible conclusion. See Beta Supply, 748 S.W.2d at 542. Further, Gilbert's averment that "members strongly object to [Kieninger's] continued personal control and do not want to live in a residential community where the land is controlled by [Kieninger]," is clearly based upon inadmissible hearsay. See TEX. R. CIV. EVID. 801(d), 802. Thus, we conclude that Gilbert's affidavit provides no competent summary judgment proof establishing that the purposes of the trust were impossible to fulfill.
        We also conclude that the resolutions allegedly passed by a majority of the membership, which state in part that the majority of the members of the Organization are unwilling to purchase land while Kieninger is in charge, are not competent summary judgment proof to show that the purposes of the trust cannot be fulfilled. The resolutions, attached to Gilbert's affidavit as exhibits F and G, are hearsay and have not been proven to meet the "business record" exception of the hearsay rule. Gilbert avers in his affidavit that the attached documents are true and correct copies of documents from the files of the Adelphi Organization and that he is personally familiar with the signatures on the documents. These averments, however, fall short of the requirements of rule 902(10) and rule 803(6). Specifically, Gilbert failed to swear that the records were made in the regular course of business, that it was his regular duty to make such recordings, or that they were made at or near the time of the act. Thus, the resolutions are not competent summary judgment proof. See Travelers Construction, 613 S.W.2d at 786.
        After disregarding the inadmissible evidence offered by the Organization in support of its summary judgment, we discern no evidence supporting the summary judgment. The Adelphi Organization, as movant for summary judgment, had the burden to show, through competent evidence, that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. See Nixon v. Mr. Property Management, Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Because the Organization failed to meet its burden, we sustain Kieninger's first point of error. In light of our conclusion that the Organization was not entitled to judgment, we need not address Kieninger's complaints concerning the award of attorney's fees. We reverse the trial court's judgment and remand for further proceedings.




                                                                                                                   ANNETTE STEWART
                                                          JUSTICE


DO NOT PUBLISH
TEX. R. APP. P. 90
88-00441.F


File Date[01-02-89]
File Name[880441]