RONALD ALEXANDER LEBLANC, SR. v. SANDRA RANSOM--Appeal from 267th District Court of Victoria County

NUMBER 13-05-294-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI - EDINBURG

 RONALD ALEXANDER LEBLANC, SR., Appellant,

v.

SANDRA RANSOM, Appellee.

On appeal from the 267th District Court

of Victoria County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

This appeal arises from two motions for summary judgment granted in favor of appellee, Sandra Ransom, and against appellant, Ronald Alexander LeBlanc, Sr. By three issues, appellant generally asserts that the trial court erred in granting summary judgment in favor of appellee with respect to appellee's declaratory judgment action and appellant's counterclaims. We affirm.

I. Standard of Review

We review the granting of a traditional motion for summary judgment de novo. Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.BCorpus Christi 2003, no pet.) (citing Natividad v. Alexsis, Inc., 874 S.W.2d 695, 699 (Tex. 1994); Tex. Commerce Bank Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex. App.BCorpus Christi 2000, pet. denied)). To prevail, the movant has the burden of showing that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. Freedom Communications, Inc. v. Brand, 907 S.W.2d 614, 617 (Tex. App.B Corpus Christi 1995, no writ) (citing Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 49 (Tex. 1985)). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Id. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. Id.

In reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard that is applied in reviewing directed verdicts. Zapata v. Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.BCorpus Christi 1999, pet. denied). We view the evidence in the light most favorable to the nonmovant and disregard all contrary evidence and inferences. Id. (citing Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Moore v. Kmart Corp., 981 S.W.2d 266, 269 (Tex. App.BSan Antonio 1998, pet. denied)). Unless the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact, the trial court must grant a no-evidence summary judgment. Id.; Tex. R. Civ. P. 166a(i).

When the trial court=s order granting summary judgment does not specify the grounds upon which it was granted, the judgment must be affirmed if any of the grounds advanced in the summary judgment motion are meritorious. FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000).

II. Analysis

A. Declaratory Summary Judgment

By his first issue, appellant asserts that the trial court erred in granting appellee's partial traditional motion for summary judgment.[1] More specifically, appellant asserts that the trial court erred in declaring that appellee was the "lawfully appointed successor Trustee of the Ronald LeBlanc Trusts," and that appellant was "never a Trustee" of the trust at issue.[2]

To support his contention, appellant asserts that a genuine issue of material fact existed with respect to whether the original trustee, Betty Moritz (Moritz), appointed either appellee or appellant to serve as her successor trustee. Appellant argues that the existence of the following documents raises a fact issue, precluding summary judgment: (1) a document wherein Moritz purported to appoint appellant as her successor trustee; and (2) a document wherein Moritz purported to appoint appellee as her successor trustee.[3] In the first document, Moritz purportedly appointed appellant as successor trustee on July 20, 1997, and appellant accepted the purported appointment on July 27, 1997. A notary public stamped the document on November 12, 1997. The document was recorded in the official records of Victoria County, Texas, on June 1, 1998. The second document is titled "APPOINTMENT TO THE RONALD ALEXANDER LE BLANC TRUST FUND." In the document, Moritz resigned as trustee and purportedly appointed appellee as successor trustee on August 6, 1997. In addition, a notary public certified that Moritz had "acknowledged to me that she executed same for the purpose and consideration therin [sic] expressed" the same day. Furthermore, appellee accepted the purported appointment on August 6th, and a notary public certified that appellee had "acknowledged to me that she executed the same for the purpose and consideration therein expressed" the same day. The document was recorded in the official records of Victoria County, Texas, on December 15, 1997. The thrust of appellant's contention turns on an evaluation of the effectiveness of Moritz's purported appointments.

Section 8.2 of the trust at issue specifies that an "appointment of successor Trustee must be in writing and must be acknowledged to be effective." Therefore, in order for either of Moritz's purported appointments to have become effective, the appointment had to be in writing and be acknowledged. Appellant does not challenge whether either of the purported appointments was in writing; instead, appellant challenges the meaning of the word "acknowledged" and its application to the purported appointments. Appellant relies on the definition of "acknowledge" found in Black's Law Dictionary, which defines the term as "to own, avow, or admit; to confess; to recognize one's acts, and assume the responsibility therefor," to support his assertion that his "acceptance" of the purported appointment satisfied the requirement that the appointment be "acknowledged." Black's Law Dictionary 39 (4th ed. 1957). Appellee, however, argues that the word "acknowledged" should be given the legal meaning found in the Texas Civil Practice and Remedies Code, and that doing so would render Moritz's appointment of her as successor trustee effective, while rendering Moritz's purported appointment of appellant as successor trustee ineffective. See Tex. Civ. Prac. & Rem. Code Ann. '' 121.004, 121.006 (Vernon 2005).

Section 121.004 of the civil practice and remedies code reads as follows:

(a) To acknowledge a written instrument for recording, the grantor or person who executed the instrument must appear before an officer and must state that he executed the instrument for purposes and consideration expressed in it.

(b) The officer shall:

(1) make a certificate of the acknowledgment;

(2) sign the certificate; and

(3) seal the certificate with the seal of office.

Id. ' 121.004. In addition, section 121.006(b) states that "[i]n an acknowledgment form 'acknowledged' means" the following:

(5) in the case of a person acknowledging as a public officer, trustee . . . that the person personally appeared before the officer taking the acknowledgment and acknowledged executing the instrument by proper authority in the capacity stated and for the purposes and consideration expressed in it.

Id. ' 121.006(b) (emphasis added).

In reviewing appellant's issue and appellee's argument, we note that it is well-settled that construction of a trust instrument is a question of law for the trial court when no ambiguity exists. See Nowlin v. Frost Nat'l Bank, 908 S.W.2d 283, 286 (Tex. App.BHouston [1st Dist.] 1995, no writ) (citing Hancock v. Krause, 757 S.W.2d 117, 119 (Tex. App.BHouston [1st Dist.] 1988, no writ)). If the trial court can give a certain or definite legal meaning or interpretation to the words of an instrument, it is unambiguous, and the court may construe it as a matter of law. Id. (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). If, however, the meaning of the instrument is uncertain or reasonably susceptible to more than one meaning, it is ambiguous. Id. If it is ambiguous, then its interpretation presents a fact issue precluding summary judgment. Id.

Here, the trust specifies that an appointment of successor trustee must be in writing and acknowledged to be effective.[4] In addition, the trust specifies that questions pertaining to its administration shall be determined in accordance with the laws of the State of Texas. Generally, the purpose of an acknowledgment "is to authenticate an instrument as being the act of the person executing the written instrument." Onwuteaka v. Cohen, 846 S.W.2d 889, 895 (Tex. App.BHouston [1st Dist.] 1993, writ denied). Section 121.004 of the civil practice and remedies code describes the proper method for acknowledging a written instrument. See Tex. Civ. Prac. & Rem. Code Ann. ' 121.004 (Vernon 2005). In addition, section 121.006 of the code specifically defines the term "acknowledged" with respect to the actions of a trustee. See id. ' 121.006. As a result, the trial court could give the term "acknowledged" a certain and definite legal meaning based on the laws of the State of Texas, specifically sections 121.004 and 121.006, as required by the trust. See Nowlin, 908 S.W.2d at 286. Therefore, we conclude the term "acknowledged," as it appeared in the trust, was unambiguous, and the trial court was permitted to construe it as a matter of law. See id. Thus, we conclude that appellant's suggestion that the definition of the term "acknowledge" found in Black's Law Dictionary, Black's Law Dictionary 39 (4th ed. 1957), be applied in the instant case is without merit, and therefore, appellant failed to raise a genuine issue of material fact with respect to the appointment of successor trustee. See Freedom Communications, 907 S.W.2d at 617 (citing Nixon, 690 S.W.2d at 548-49). We further conclude that the trial court properly granted summary judgment in favor of appellee because appellee established, as a matter of law, that Moritz's appointment of her as successor trustee was in writing and acknowledged, in accordance with the trust. We overrule appellant's first issue.

 B. Summary Judgment on Counterclaims[5]

By his second and third issues, appellant asserts that the trial court erred in granting summary judgment in favor of appellee on his counterclaims for waste and mismanagement of the trust property because (1) the record demonstrated that he had standing to bring the counterclaims, and (2) appellee failed to provide summary judgment evidence that she gave notice of the lawsuit to the beneficiaries of the trust.

1. Standing to Bring Counterclaims

Through his second issue, appellant asserts that the trial court erred in granting summary judgment in favor of appellee on his counterclaims, thereby finding that he lacked standing to bring the counterclaims. We disagree.

Pursuant to section 115.011 of the Texas Property Code, only an interested person may bring an action to determine the responsibilities, duties, and liability of a trustee. Tex. Prop. Code Ann. '' 115.001, 115.011(a) (Vernon 1995 & Supp. 2005). Section 111.004(7) defines an interested person as follows:

a trustee, beneficiary, or any other person having an interest or claim against the trust or any person who is affected by the administration of the trust. 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.

Id. ' 111.004(7).

Here, appellant only relies on his theory that he, rather than appellee, was appointed by Moritz as her successor trustee, and therefore, he has standing, as trustee, to bring his counterclaims. Appellant does not assert that he has standing to bring his counterclaims under any other definition of an interested person found in section 111.004(7), nor did he present any summary judgment evidence to indicate that he met any other definition of an interested person pursuant to section 111.004(7). See id.; see also Zapata, 997 S.W.2d at 747 (providing that unless the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact, the trial court must grant a no-evidence summary judgment). Thus, because (1) we have already determined that the trial court properly declared that appellee was the "lawfully appointed successor Trustee of the Ronald LeBlanc Trusts," and that appellant was "never a Trustee" of the trust at issue, and (2) appellant presented no summary judgment evidence that he met any other definition of an interested person, we conclude that appellant lacked standing to bring his counterclaims. Therefore, we conclude that the trial court's granting of summary judgment, if based on the ground that appellant lacked standing to bring his counterclaims, was proper. We overrule appellant's second issue.

2. Notice to Beneficiaries Regarding Counterclaims

Having concluded that appellant lacked standing to bring his counterclaims, we need not address appellant's third issue. See Tex. R. App. P. 47.4.

III. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 20th day of July, 2006.

[1]In her partial motion for summary judgment, appellee only sought a declaration that she had been named Moritz's successor trustee. In her subsequent motion for traditional summary judgment and no-evidence summary judgment, appellee sought summary judgment on attorney's fees related to her declaratory judgment action and on appellant's counterclaims. The trial court granted appellee's motion for traditional summary judgment and no-evidence summary judgment, thereby granting attorney's fees and making the judgment relating to the declaratory judgment action final and appealable.

[2]We note that appellant argues, as a sub-issue, for the first time on appeal that (1) section 8.1 of the trust states that Wiley Moritz shall serve as successor trustee in the event that Betty S. Moritz is unwilling or unable to serve as trustee and that Raymond E. Allen, Sr. shall serve as second successor trustee if neither Betty nor Wiley Moritz is willing or able to serve, (2) there is no evidence in the record to show that both Wiley Moritz and Raymond E. Allen, Sr. were unwilling or unable to serve, and (3) as a result, Betty S. Moritz's appointment of appellee as her successor trustee was not in accordance with the terms of the trust. However, because 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); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979), we will not consider this sub-issue.

[3]Appellant also asserts that Moritz's affidavit, which states that she had appointed appellant as successor trustee, raises a fact issue when considered with the first two documents. However, we conclude that Moritz's affidavit is of no consequence because we must determine the effectiveness of the purported appointments based on whether the appointments were in writing and acknowledged, as indicated in the trust at issue.

[4]We note that because the meaning of the term "writing" is not challenged on appeal, we will only review the trial court's judgment with respect to the meaning and application of the term "acknowledged" and will not address the meaning and application of the term "writing" in this opinion.

[5]Appellee filed a hybrid traditional motion for summary judgment and a no-evidence motion for summary judgment asserting (1) that appellant lacked standing to bring his counterclaims and there was no evidence in the record to show he was an interested person, (2) there was no evidence in the record as to appellant's counterclaims, and (3) that appellee was entitled to attorney's fees. The trial court did not specify the ground(s) upon which it granted summary judgment. Therefore, the judgment must be affirmed if any of the grounds advanced in the summary judgment motion are meritorious. FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000).