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Barcroft v. Walton

Court of Appeals of Texas, Second District, Fort Worth

September 7, 2017

ALBERT LYNN BARCROFT APPELLANT
v.
CANDACE WALTON & KENNETH GIBBS APPELLEES

         FROM PROBATE COURT NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 2005-0000126-2-D

          PANEL: WALKER, MEIER, and SUDDERTH, JJ.

          MEMORANDUM OPINION [1]

          BONNIE SUDDERTH JUSTICE

         I. Introduction

         In nine issues, pro se Appellant Albert Lynn Barcroft (now deceased)[2]appeals the trial court's default judgment against him and in favor of Appellees Candace Walton and Kenneth Gibbs, raising arguments about "jurisdiction, venue, failure to give notice, failure to severe [sic], and constitutional issues." We overrule Barcroft's second issue-which pertains to severance and the finality of the trial court's default judgment-as moot because while this appeal was pending, the trial court issued a final judgment on January 11, 2014.[3] We also overrule portions of his first issue and his seventh issue to the extent that they have raised subject matter jurisdiction, which we review sua sponte, see Freedom Communications, Inc. v. Coronado, 372 S.W.3d 621, 624 (Tex. 2012), and we overrule his remaining issues for failure to comply with the rules of civil and appellate procedure. As such, we affirm the trial court's judgment.

         II. Subject Matter Jurisdiction

         In his first issue, Barcroft complains that the trial court erred because he was given no notice "of hearings held to determine [his] standing and/or liability." Although standing is a component of subject matter jurisdiction, see Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 445 (Tex. 1993), it generally pertains to the plaintiff's ability to bring a claim when he is personally aggrieved. See Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). Barcroft was a defendant, not a plaintiff, in the case below, and he has not directed us to any authority or provided any explanation to support his standing contention in his first issue.[4] Cf. Tex. R. App. P. 38.1(i) (requiring an appellate brief to contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record). Therefore, we overrule the standing portion of Barcroft's first issue.

         In part of his seventh issue, Barcroft again raises a question about the probate court's subject matter jurisdiction over the case, but he refers us to a venue provision and to matters not contained within the official appellate record of the case, some of which he attached to his brief. See Tex. R. App. P. 34.1. While subject matter jurisdiction may be challenged at any time, venue-even mandatory venue-may be waived. See Tex. R. Civ. P. 86(1); Scott v. McMillian, No. 02-05-00410-CV, 2006 WL 1351502, at *2 (Tex. App.-Fort Worth May 18, 2006, no pet.) (mem. op.) ("Venue requirements, unlike jurisdictional requirements, may be waived, even if mandatory."); see also Gordon v. Jones, 196 S.W.3d 376, 383 (Tex. App.-Houston [1st Dist.] 2006, no pet.); Herring v. Welborn, 27 S.W.3d 132, 141 (Tex. App.-San Antonio 2000, pet. denied) ("A jurisdictional requirement []such as that contained in the Probate or Tax Codes[] takes precedence over a venue requirement.").[5] And "[w]e cannot consider documents attached to an appellate brief that do not appear in the record." Murphy v. Leveille, No. 02-08-00130-CV, 2009 WL 2619857, at *2 n.3 (Tex. App.-Fort Worth Aug. 26, 2009, no pet.) (mem. op.) (citing Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.-Houston [1st Dist.] 1999, no pet.)). As we explained in Murphy, "This court must hear and determine a case based on the record as filed and may not consider documents attached as exhibits to briefs." Id. (emphasis added).

         But because in a previous case we concluded that the probate court lacked jurisdiction over tort claims raised in a trust case, see In re Guardianship of Gibbs (Gibbs I), 253 S.W.3d 866, 869, 877 (Tex. App.-Fort Worth 2008, pet. dism'd) (op. on reh'g), and because we must review subject matter jurisdiction sua sponte, we will review this case's pertinent procedural background and the statutory bases for the probate court's subject matter jurisdiction to determine whether the probate court had subject matter jurisdiction in this case.

         A. Procedural Background of the Instant Case

         On April 1, 2014, the Pentex Foundation sued Walton, Gibbs, and their brother Howard Gibbs[6] in Fannin County. Three days later, Walton and Gibbs filed in Tarrant County probate court a petition for injunctive relief against Howard; Beverly Miller, individually and as trustee of the GWB Trust; Barcroft, individually and as the legal representative of the Pentex Royalty Trust and the Pentex Foundation; and Danny Unger, as trustee of the GBU Friends and Associates Trust and as the agent of the GWB Trust. In their petition, Walton and Gibbs sought to freeze all assets under the ownership and control of Howard, Miller, Barcroft, Unger, the GWB and GBU Trusts, the Pentex Royalty Trust, and the Pentex Foundation to secure the assets owned by the GWB Trust and to prevent future improper and illegal transfers from one trust to another.

         In conjunction with their petition for injunctive relief, Walton and Gibbs sued for fraud, fraudulent concealment, civil conspiracy, theft, unjust enrichment, and breach of fiduciary duty. Among other things, they also sought to remove Miller as trustee and to appoint a successor trustee. And they sought to transfer the Fannin County case to the probate court, arguing that it was ancillary to their case. The Fannin County court transferred its case to the Tarrant County probate court.[7]

         Ultimately, the Tarrant County probate court struck Barcroft's pleadings for discovery abuse in September 2015 and granted a sizable default judgment against him in December 2015. The trial court signed a turnover order against Barcroft on September 19, 2016, which Barcroft appealed pro se, and which this court affirmed. See Barcroft v. Walton, No. 02-16-00404-CV, 2017 WL 1738079, at *2 (Tex. App.-Fort Worth May 4, 2017, no pet.) (mem. op.).

         B. Precedent

         We previously addressed a probate court's jurisdiction to hear tort claims involving a trust in a case involving some of the same individuals now before us. See Gibbs I, 253 S.W.3d at 869, 877. Gibbs I pertained to a trust of which Walton and Gibbs's mother Kathryn was a beneficiary. Id. at 869. Kathryn's children-Walton, Gibbs, Kip, and Howard-were also beneficiaries, and the trust provided that if Kathryn and any three of her four children agreed in writing, additional funds could be removed from the trust for her benefit. Id. In 1998, without consulting Kip, Kathryn, Walton, Gibbs, and Howard signed written authorizations to withdraw $1, 015, 000 from the trust to prepare for Y2K. Id.

         Two years later, after Y2K came and went, Kip sued in Denton County Probate Court as Kathryn's next friend and sought guardianship over Kathryn's estate. Id. He also asserted claims against his siblings "for restitution/money had and received and breach of fiduciary duties related to removal of the trust funds" and sought punitive damages. Id. at 869-70. Ultimately, Kip won a $1, 060, 799.21 judgment on his restitution and breach-of-fiduciary-duty claims- which were transferred to the Denton County Probate Court as ancillary to the guardianship case-and the trial court modified the trust to remove Walton, Gibbs, and Howard as trust beneficiaries. Id. at 870. We vacated the trial court's judgment and rendered judgment dismissing the cause after concluding that the Denton County Probate Court lacked jurisdiction over Kip's tort claims. Id. at 877.

         In determining that the probate court lacked subject matter jurisdiction over Kip's restitution and breach-of-fiduciary-duty claims, we reviewed the then-applicable statutes and noted that a statutory probate court's jurisdiction over actions involving trusts is concurrent with that of a district court. Id. at 870-71. Therefore, we stated, "the district court's jurisdiction over actions involving trusts determines the extent of a statutory probate court's jurisdiction over such actions." Id. at 871. We recounted the list of ten items that property code section 115.001(a) set out for actions "concerning trusts" over which a district court had jurisdiction and determined that Kip's causes of action against his siblings for restitution and breach of fiduciary duty were not enumerated in section 115.001(a) and did not fall within its scope.[8] Id. at 871-72. We stated that the mere fact that trust funds were implicated by a claim did not transform the claim into one "concerning" or "involving" trusts. Id. at 872. And because no law at that time gave the trial court subject matter jurisdiction over Kip's tort claims against his siblings for restitution and breach of fiduciary duty, we held that the trial court lacked subject matter jurisdiction over those claims and that its judgment rendered against Walton, Gibbs, and Howard on the claims was void. Id. at 877. Accordingly, we vacated the trial court's judgment and rendered judgment dismissing the cause. Id.

         C. Amendment to Section 115.001

         Gibbs I was brought in the trial court before the legislature's 2007 amendment to section 115.001, which added subsection (a-1) and some additional language to subsection (a). See Act of May 16, 2007, 80th Leg., R.S., ch. 451, § 11, 2007 Tex. Gen. Laws 801, 804-05; see also In re Wheeler, 441 S.W.3d 430, 435 n.2 (Tex. App.-Waco 2014, orig. proceeding) (observing that Gibbs I predated the 2007 amendments); Gibbs I, 253 S.W.3d at 868 (withdrawing the court's October 5, 2006 opinion to substitute in its place the court's April 3, 2008 opinion on rehearing).

         As of September 1, 2007, the pertinent portion of section 115.001, with the new additions italicized below, now provides:

(a) 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, including proceedings to:
(1) construe a trust instrument;
(2) determine the law applicable to a trust instrument;
(3) appoint or remove a trustee;
(4) determine the powers, responsibilities, duties, and liability of a trustee;
(5) ascertain beneficiaries;
(6) make determinations of fact affecting the administration, distribution, or duration of a trust;
(7) determine a question arising in the administration or distribution of a trust;
(8) relieve a trustee from any or all of the duties, limitations, and restrictions otherwise existing under the terms of the trust instrument or of this subtitle;
(9) require an accounting by a trustee, review trustee fees, and settle interim or ...

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