ELTON M. HYDER, III, Appellant v. MARTHA ROWAN HYDER, INDIVIDUALLY AND AS TRUSTEE UNDER THE WILL OF ELTON M. HYDER JR., AND WHITNEY HYDER MORE AND BRENT ROWAN HYDER, INTERVENORS, Appellees

AFFIRM and Opinion Filed August 11, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01121-CV
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ELTON M. HYDER, III, Appellant
V.
MARTHA ROWAN HYDER, INDIVIDUALLY AND AS TRUSTEE UNDER THE WILL OF ELTON M. HYDER JR., AND WHITNEY HYDER MORE AND BRENT ROWAN HYDER, INTERVENORS, Appellees
 
.............................................................
On Appeal from the Probate Court No. 1
Tarrant County, Texas
Trial Court Cause No. 95-2638-1
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MEMORANDUM OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Wright
        Elton M. Hyder, III, appeals the trial court's summary judgment in favor of Martha Rowan Hyder, individually and as trustee under the will of Elton M. Hyder, Jr. (Hyder), and Whitney Hyder More and Brent Rowan Hyder, intervenors. In five issues, appellant generally contends the trial court erred by granting appellees' motion for summary judgment because (1) the motion was granted on a ground not presented in the motion, (2) appellant's lawsuit against Martha Hyder did not question or challenge the validity of Hyder's will; (3) the no contest clause in Hyder's will is unenforceable as a matter of law; (4) even if the no contest clause is enforceable, appellant's suit seeking to enforce the trust provisions and to compel Martha Hyder, as trustee, to fulfill her fiduciary duties did not trigger it; and (4) he sued Martha Hyder as trustee in good faith as a matter of law, or in the alternative, a fact issue exists regarding whether he brought the lawsuit in good faith. We overrule appellant's issues and affirm the trial court's judgment.
 
Background
        Hyder died in 1995, survived by his wife, Martha Hyder, and three children-appellant, Whitney Hyder More, and Brent Rowan Hyder. Hyder left a will naming Martha Hyder as the executrix of the will and trustee of the trusts created by the will. Among other things, the will left “the household goods, personal effects, club memberships, and family automobiles” to Martha Hyder outright. The will also created two trusts, a marital trust and a residuary trust. The marital trust was to be funded with a portion of the estate and its net income is to be paid to Martha Hyder during her lifetime. She has the right to the principal of the marital trust if its income is insufficient for her health, support and maintenance. Upon Martha Hyder's death, the remaining funds are to be transferred into the residuary trust. The residuary trust was to be funded with the remaining portion of the estate (and later the remaining funds from the marital trust). Martha Hyder is likewise to be paid the net income from the trust during her lifetime and may invade the principle for her heath, support and maintenance. Upon her death, the trust assets are to be distributed to appellant, Whitney More, and Brent Hyder.
        The will also contained the following no contest clause:
I expressly direct that if any beneficiary named or described in this Will should, in any manner, contest or question the validity of any part or clause of this will, in any judicial proceeding, or maintain suit against the Independent Executrix or successor personal representative of my estate or the Trustee of the testamentary trusts created pursuant to Articles II, IIA, and III above, said beneficiary shall automatically forfeit any right or title to any property to which he or she may be entitled pursuant to the provisions of this will. Rights or properties that are forfeited pursuant to this paragraph shall be disposed of as though the beneficiary who has forfeited his or her interest had died before my death and without issue.
 
        On October 31, 2005, appellant filed suit against Martha Hyder, individually and as trustee, seeking an accounting and claiming she had breached her fiduciary duties. He also asked the court to “construe” the will as it pertained to certain art objects and collections so as to give “proper credit to the trust entities created under the will.” He later amended his pleadings, adding a claim of conversion. He sought a judgment “identifying the assets that should have funded the trusts, an accounting for any damages, mismanagement of the trusts, breach of fiduciary relationship, attorney's fees, costs,” and removal of Martha Hyder as trustee.
        Whitney More and Brent Hyder intervened and together with Martha Hyder, filed a counterclaim seeking a declaration that appellant's actions in filing suit against Martha Hyder violated the no contest clause and appellant had therefore forfeited his right to any property to which he would be entitled under the will. They also sought attorney's fees pursuant to the declaratory judgment act. Thereafter, appellees filed a motion for summary judgment claiming appellant had triggered the no contest clause by (1) maintaining suit against Martha Hyder as the executrix of the will; and (2) maintaining suit against Martha Hyder as the trustee of the will. Appellees did not assert appellant had violated the no contest clause by challenging the will. Appellant responded, asserting: (1) he did not trigger the first provision of the no contest clause because he had not challenged or questioned the validity of the will; (2) his law suit did not trigger the no contest clause because he had not sued Martha Hyder in her capacity as executrix (only individually and as trustee); (3) the no contest clause is inapplicable as a matter of law to a suit by a beneficiary against a trustee for a breach of fiduciary duties, for removal, or for an accounting; and (4) regardless of whether the no contest clause had been triggered , he brought suit against Martha Hyder as trustee in good faith as a matter of law, or at the least, a fact issue existed regarding the good faith and probable cause exception to the enforcement of the no contest clause. Appellant did not assert that the no contest clause was inapplicable as a matter of law to a suit by a beneficiary against an executrix for a failure to perform her duties as executrix in his written response. Appellant's sole response to appellees' allegation that he had violated the prohibition against maintaining suit against the executrix was that he had maintained suit against Martha Hyder, individually and as trustee and; thus, his lawsuit did not fall within the scope of the no contest clause.
        After considering appellees' motion for summary judgment, appellant's response, appellees' reply, and the summary judgment evidence, the trial court granted appellees' motion for summary judgment on the ground that appellant brought suit against Martha Hyder as the executrix of the estate in violation of the no contest clause, and determined appellant had forfeited his right to inherit under Hyder's will. After severing appellees' claim for attorney's fees, this appeal ensued.
 
Standard of Review
        We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. denied). The standards for reviewing a “traditional” summary judgment under rule 166a(c) are well established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Once the defendant establishes the right to summary judgment as a matter of law, the burden shifts to the plaintiff to present any reasons for avoiding summary judgment or to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. See Tex. R. Civ. P. 166a(c). Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. Id.
Discussion
        In his first issue, appellant contends the trial court erred by expressly granting summary judgment on a ground not presented in appellees' motion. In particular, appellant maintains the trial court granted summary judgment because appellant filed a 1999 lawsuit against his mother as executrix in violation of the no contest clause, and appellees did not rely on that lawsuit in support of their motion for summary judgment. We agree with appellant that appellees did not support their motion for summary judgment with evidence of the 1999 lawsuit. Rather, they relied on the 2005 lawsuit in support of their motion. However, in its judgment, the trial court concluded that both the 1999 suit and the 2005 suit were suits against Martha Hyder as executrix and both the 1999 and the 2005 suits violated the no contest clause. In their motion for summary judgment, appellees alleged appellant's 2005 lawsuit against Martha Hyder “violated the second and third provisions” of the no contest clause. Because appellees expressly asserted appellant's 2005 lawsuit violated the no contest clause's prohibition against suing the executrix, appellant's contention that we must reverse the summary judgment because it was granted on a ground not presented in the motion lacks merit. We overrule appellant's first issue.
        In his third issue, appellant contends the trial court erred by granting summary judgment on the ground that appellant brought suit against Martha Hyder as the executrix of the estate in violation of the no contest clause. According to appellant, because he did not sue Martha Hyder in her capacity as executrix, but rather, only individually and in her capacity as trustee, he did not maintain suit against the executrix. We look at the substance of a pleading to determine its nature, not merely at the form or title given to it. See Tex. R. Civ. P. 71; State Bar v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); Ware v. Miller, 82 S.W.3d 795, 799 (Tex. App.-Amarillo 2002, pet. denied) (although defendant sued in official capacity, substance of pleadings showed claims were individual in nature). After reviewing the pleadings in this case, we agree with the trial court that appellant maintained suit against Martha Hyder as executrix of Hyder's estate.
        Appellant sued Martha Hyder individually and in her capacity as trustee of the testamentary trusts. However, in his amended petition, appellant stated that Hyder's will provided for certain discretionary actions to be done by Martha Hyder as “Executrix and as Trustee.” Among other things, he complained that Martha Hyder had failed to properly itemize “various art collections owned by Hyder prior to his death “that should have passed to the Testamentary Trusts.” According to appellant, Martha Hyder incorrectly categorized the art collections as “household goods,” thus passing to her outright under the terms of the will, rather than as investments which should have been accounted for and distributed to the trusts, and that she had sold the goods and appropriated the money for her personal use rather than maintaining or segregating the money as trust funds. The inventory, appraisement, and distribution of the estate are duties of the independent executrix. See Tex. Prob. Code Ann. § 145 (Vernon 2003). Artful labeling of pleadings must yield to the true content of those pleadings. In re Samford, 249 S.W.3d 761, 764 (Tex. App.-Texarkana 2008, no pet.). Thus, considering the substance and content of appellant's pleading, we conclude appellant maintained suit against Martha Hyder as executrix, and the trial court properly granted summary judgment on that ground.
        With respect to appellant's suggestion that appellees made only a “causal reference to a possible violation of Clause 2 of Article 7.02 of the will by 'maintaining suit against the Independent Executrix'” and appellees “nowhere claimed that the Lawsuit was in reality against the executrix,'” we disagree. Although not a model of clarity, appellees' motion for summary judgment alleged appellant's 2005 lawsuit against Martha Hyder “violated the second and third provisions” of the no contest clause. The second provision of the no contest clause prohibits a beneficiary from maintaining suit against the executrix of the estate. In his response to the motion, appellant addressed the allegation that his 2005 lawsuit violated the no contest clause's prohibition against suing the executrix, claiming he had not sued her in her capacity as executrix, but rather individually and in her capacity as trustee. Appellees then filed their brief in support of motion for summary judgment and reply to appellant's response. In the brief, appellees further developed their argument to the trial court regarding suit against the executrix. They expressly maintained that the substance of appellant's pleadings show he was maintaining suit against Martha Hyder as executrix. Thus, contrary to appellant's suggestion, appellees expressly presented this argument to the trial court before the trial court ruled on the motion for summary judgment.
        Finally, to the extent that appellant contends the no contest clause is inapplicable to appellant's claims against Martha Hyder as executrix for the same public policy reasons that prevent application of such a clause against a beneficiary suing a trustee, we decline to address the merits of this argument. Although appellant argued in his response that public policy reasons prevented application of the no contest clause against him as a beneficiary suing the trustee for breach of her duties as trustee, appellant did not raise this issue with respect to suits by a beneficiary suing the executrix. Rather, he makes this argument for the first time on appeal. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c). Because appellant did not inform the trial court in his response to appellees' motion that public policy prohibits application of a no contest clause to a suit against an executrix for failure to properly perform her duties as executrix, we may not consider it as grounds for reversal. See id.; Thompson v. Harco Nat'l Ins. Co., 120 S.W.3d 511, 516 (Tex. App.-Dallas 2003, pet. denied) (because appellant did not inform trial court in its motion for summary judgment or response that paper being transported at time of accident was ultimately destined for Mexico, issue could not be urged as ground for reversal on appeal). We overrule appellant's third issue. Having done so, we need not address appellant's remaining issues.
        Accordingly, we affirm the trial court's judgment.
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
 
071121F.P05