NO. 07-07-0072-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JANUARY 21, 2009
______________________________
IN THE INTEREST OF G.K.D., A CHILD
_________________________________
FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;
NO. 96-558,341; HON. PAULA LANEHART, PRESIDING
_______________________________
Before CAMPBELL and HANCOCK, JJ., and BOYD, S.J.
MEMORANDUM OPINION
          In one point, appellant Sherry Kay Lesley (Lesley) contends the trial court erred in failing to award sufficient retroactive child support in its order increasing child support to be paid by appellee Grant Dukes (Dukes). In its December 21, 2006 order giving rise to this appeal, the trial court increased the amount of monthly child support due by Dukes retroactively from October 1, 2006. In this appeal, Lesley argues that the increased child support payments should have been ordered from the January 17, 2006 filing of Dukesâ answer to her request for increased child support. Disagreeing that the trial court erred, we affirm its judgment.
Discussion
          The Family Code gives a trial court authority to retroactively modify child support obligations accruing after the earlier of the date of service of citation or the date of the appearance of the respondent in such an action. Tex. Fam. Code Ann. §156.401(b) (Vernon 2008). The record reveals that Lesleyâs motion to increase child support was filed on December 20, 2005, Dukes was served with citation on December 26, 2005, and he answered the motion on January 17, 2006.
          The trial court originally set the hearing on the motion on May 22, 2006. Because of a death in his family, Lesleyâs counsel sought and obtained a continuance until July 11, 2006. On July 10, 2006, Lesleyâs counsel, alleging that both he and Dukesâ attorney had conflicting trial settings, obtained a continuance and the matter was reset for August 10, 2006. On August 9, Lesleyâs counsel sought another continuance on the basis that he would be out of town on August 10, and that Dukesâ attorney was set for appearance in another court. This motion was granted and the hearing reset for October 19, 2006.
          On September 15, 2006, Lesleyâs counsel amended her motion to modify and added a count seeking the modified child support retroactive to the earlier of the time of service of citation upon Dukes or the time of his appearance on the modification motion. The motion was heard at the scheduled time of October 19, 2006. On December 21, 2006, the trial court entered the order giving rise to this appeal. In the order, as material to this appeal, it included a provision providing for increased child support from October 1, 2006. As we have noted, in her one issue, Lesley contends the trial court reversibly erred in not ordering the increased child support retroactive to January 17, 2006, the date of Dukesâ answer to her motion seeking increased child support.
          We review the decision of the trial court in matters such as this under an abuse of discretion standard which occurs when the judge acts without reference to any guiding rules or principles. See In re Tucker, 96 S.W.3d 662, 668 (Tex. App.âTexarkana 2003, no pet.). In making that decision, we bear in mind that while the existence of evidence supporting the trial courtâs decision depends not only on whether it acted without reference to guiding rules and principles but whether the evidence supports it decision. Nordstrom v. Nordstrom, 965 S.W.2d 575, 582 (Tex. App.âHouston [1st Dist.] 1997, pet. denied); In re Hamer, 906 S.W.2d 263, 265 n.1(Tex. App.âAmarillo 1995, no writ). Also, in performing that task, we review the evidence in a light most favorable to the trial courtâs decision, and we must indulge in every presumption favoring the judgment. In re Tucker, 96 S.W.3d at 665.
          Here, the evidence was focused chiefly upon Dukesâ increased net resources. There was evidence that while Lesley provided the childâs residence in Marble Falls, she agreed that they also lived in Horseshoe Bay. There was evidence she had remarried and occupied a home valued at one million dollars. Her husband was in the real estate business while she operated a property renovation business. Dukes testified that he had purchased a duplex in Horseshoe Bay and when he traveled from his home in Abilene to spend his designated weekends with G.K.D., he stayed there because that living arrangement provided a better environment for G.K.D. than a hotel room. The evidence also showed that Dukes frequently traveled to G.K.D.âs Thursday night junior varsity games. He furnished an expense summary showing that the cost of the trips to Horseshoe Bay and the purchase expenses of the duplex amounted to some $4,000 per month.
          The purpose of awarding retroactive child support is to remove any motive by an obligor to delay proceedings because absent such power, there would be considerable motive to do so. In re H.S.N., 69 S.W.3d 829, 833 (Tex. App.âCorpus Christi 2002, no pet.). Although for apparent good reasons, and with the agreement of Dukes, Lesleyâs three motions for continuance nevertheless added five months to the pretrial period.
          We also note that it was only after obtaining three continuances and with trial a month away that Lesley sought retroactive child support for the first time. Although Lesleyâs motion contained fair notice of her claim for retroactive child support, we find that the timing of that request, together with the evidence produced at the hearing, is sufficient to justify the trial courtâs discretion in limiting the period of the retroactivity to October 1, the first day of the month following service of Lesleyâs amended motion.
          Accordingly, Lesleyâs issue is overruled, and the order of the trial court is affirmed.
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                                                                           John T. Boyd
                                                                          Senior Justice
Indeed, the will was not admitted to probate until June 19, 1996, well over a year after the lawsuit was filed.Furthermore, although the statute appears to contemplate a single lawsuit, the provisions of the act requiring all beneficiaries to be parties is primarily for the benefit of the defendant to protect it from several lawsuits arising out of the same incident. Avila v. St. Luke's Lutheran Hosp., 948 S.W.2d 841, 850 (Tex.App.--San Antonio 1997, writ denied); Schwing v. Bluebonnet Exp., Inc., 470 S.W.2d 133, 137-38 (Tex.Civ.App.-- Houston [14th Dist.] 1971), rev'd in part on other grounds, 489 S.W.2d 279 (Tex. 1973). The defendant's failure to raise the issue may result in its waiver. Avila, 948 S.W.2d at 850; see also Schafer v. Stevens, 352 S.W.2d 471, 474 (Tex.Civ.App.--Dallas 1961, writ dism'd). Moreover, each beneficiary can only recover the damages he has individually sustained by reason of the death. Avila, 948 S.W.2d at 851. Beneficiaries who are not included in the lawsuit have been found entitled to bring their own lawsuit to recover the damages to which they individually may be entitled. Id. Thus, appellant had the right to bring his own lawsuit if he had chosen to do so.
Moreover, appellant produced no evidence in the record to show that he would have recovered damages because of the wrongful death of his father. He also fails to indicate the amount of any pecuniary loss or the extent of mental anguish for which he might have been entitled to recover. Thus, the actions or inactions of Inez in failing to include appellant in the lawsuit were not the proximate cause of any determinable loss to him.
Appellant further complains that, as executrix and as his stepmother, Inez owed him a fiduciary duty to inform him that he was not included in the wrongful death lawsuit because she had a duty to apprize him of facts that might affect his rights. Although appellant contends that Earl made affirmative representations to him that his rights were being protected, it is not disputed that Inez made no such representations to appellant. In fact, the evidence shows that Inez and appellant had not communicated since prior to the death of appellant's father. Therefore, Inez's liability in this regard, if any, can only be predicated upon some duty on her part to provide appellant with information. Generally, there is only a duty to speak when the parties have a confidential or fiduciary relationship with one another. Insurance Co. of North America v. Morris, 981 S.W.2d 667, 674 (Tex. 1998).
The duty of an executor and trustee is to administer the estate or trust for the benefit of the beneficiaries. Huie v. DeShazo, 922 S.W.2d 920, 924 (Tex. 1996). Executors and trustees owe beneficiaries a duty of full disclosure of all material facts known to them that might affect the rights of the beneficiaries. Id. at 923. When the estate was joined as a party to the wrongful death lawsuit, it was for the purpose of asserting any survivor claim that might be proven to exist. As we have already discussed, appellant suffered no damages as a result of not being informed of the survivor action.
We must, therefore, determine whether Inez, as a result of some confidential relationship, owed an independent duty to appellant to inform him of his exclusion as a party to the wrongful death lawsuit or that she had not sued on behalf of all statutory parties. Appellant insists that the "familial, formal and informal relationships existing between Joe Trostle and Inez Trostle gave rise to a fiduciary duty." Where one person is accustomed to being guided by the judgment or advice of another or is justified in believing one will act in the best interest of another because of a family relationship, a confidential relationship may arise. Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962). Thus, an informal relationship may give rise to a fiduciary duty in situations in which one person trusts and relies on another whether the relationship is moral, social, domestic or personal. Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171, 176 (Tex. 1997). However, mere subjective trust does not create a fiduciary relationship. Id. at 176; Locke, 363 S.W.2d at 253. The existence of such a relationship is determined from the actual facts of the relationship between the persons. Id.
The only factual basis appellant asserts for the proposition that such a relationship existed between Inez and himself is that Smithee "concluded the relationship was close enough that he should rely on Inez Trostle's statements that Joe Trostle did not want to be included in the lawsuit." (2) Whether or not Inez's attorney felt he was entitled to rely on statements made by Inez provides no objective facts from which the nature of the relationship between Inez and appellant may be determined. However, other summary judgment evidence, including the testimony of both appellant and Inez, showed that they were not particularly close because of some differences between Inez and appellant's wife, and that appellant and Inez had not spoken to each other since before the death of appellant's father. They apparently did not even speak to each other at the funeral. It cannot be said that appellant relied on Inez for moral, financial, or personal support or guidance.
Moreover, appellant testified in his deposition that, because of a telephone conversation with Smithee in August 1998, he knew he had not been included as a party to the wrongful death lawsuit and that the case was set to go to trial the following month. (3) He attempts to contradict this testimony with an affidavit in response to the motion for summary judgment in which he avers he did not know he was not a party plaintiff or entitled to any of the lawsuit proceeds until after the case went to trial. He further states in that affidavit that Smithee did not inform him that he was not included in the lawsuit. However, an affidavit which conflicts with deposition testimony may not be used to raise a fact issue with respect to a motion for summary judgment without an explanation. Farroux v. Denny's Restaurants, Inc., 962 S.W.2d 108, 111 (Tex.App.-- Houston [1st Dist.] 1997, no pet.); but see Thompson v. City of Corsicana Housing Authority, 57 S.W.3d 547, 557 (Tex.App.-- Waco 2001, no pet. h.) (holding that inconsistencies in the summary judgment evidence of a single witness create a fact issue). The trial court sustained the objections of Inez to appellant's affidavit, and that ruling has not been challenged on appeal. Although appellant knew prior to trial that he was not a party to the lawsuit, he made no attempt to intervene and did not immediately consult an attorney. We do not believe that Inez had a duty to inform appellant that he was not a party to the wrongful death lawsuit.
Appellant further contends that genuine issues of material fact have been raised as to a civil conspiracy to defraud. The elements of a civil conspiracy are (1) two or more persons, (2) an object to be accomplished, (3) a meeting of the minds on the object or course of action, (4) one or more unlawful, overt acts, and (5) damages as a proximate result. Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas, Inc., 975 S.W.2d 546, 553 (Tex. 1998). Such a conspiracy existed, appellant argues, because both Inez and Earl told Smithee that appellant did not want to be included in the lawsuit for the purpose of depriving him of his opportunity to participate and the proceeds therefrom. The elements of a civil conspiracy as already stated require participation in some underlying tort. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). Because we have determined that Inez had no duty to inform appellant he was not included in the wrongful death lawsuit and entitled to bring his own wrongful death lawsuit, and because there was no recovery by the estate with respect to any survivor claims, there have been no unlawful acts as required. Therefore, appellant's conspiracy claim must necessarily fail.
Appellant also challenges the trial court's failure to grant him equitable relief in the form of the imposition of a constructive trust, a temporary injunction, the appointment of a receiver, and an accounting. A constructive trust is imposed to redress wrong or prevent unjust enrichment. Meadows v. Bierschwale, 516 S.W.2d 125, 131 (Tex. 1974). We have already found that Inez did not commit a wrongful act and therefore she could not profit from a wrong or be unjustly enriched. See Tripp Village Joint Venture v. MBank Lincoln Centre, N.A., 774 S.W.2d 746, 750 (Tex.App.--Dallas 1989, writ denied). Thus, appellant is not entitled to a constructive trust.
The purpose of a temporary injunction is to preserve the status quo pending a trial on the merits. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). To be entitled to a temporary injunction, an applicant must show a probable injury and a probable right of recovery. Id. at 57. Once again, because we have determined that summary judgment, which is a final disposition, was correctly granted, there is no necessity for a temporary injunction to preserve the status quo.
Appellant cites no authority to support his argument that he is entitled to an equitable accounting or the appointment of a receiver. Suffice it to say that because we have concluded that appellant is not entitled to any of the settlement proceeds from the lawsuit as an heir and Inez did not wrongfully exclude him from the wrongful death cause of action, we can see no basis upon which to order an accounting or the appointment of a receiver.
Appellant additionally asserts, however, that he is entitled to an accounting from Inez as executrix of the estate based on section 149A(a) and (b) of the Probate Code. The version of that section in effect at the time in question provided in pertinent part:
(a) Interested Person May Demand Accounting. At any time after the expiration of fifteen months from the date that an independent administration was created and the order appointing an independent executor was entered by the county court, any person interested in the estate may demand anaccounting from the independent executor. . . .
(b) Enforcement of Demand. Should the independent executor not comply with a demand for an accounting authorized by this section within sixty days after receipt of the demand, the person making the demand may compel compliance by an action in the county court or by a suit in the district court. After a hearing, the court shall enter an order requiring the accounting to be
made at such time as it deems proper under the circumstances.
Tex. Prob. Code Ann. § 149A(a) and (b) (Vernon 1980). Appellant requested a voluntary "complete accounting of the estate" by letter dated May 4, 1999, to the attorney representing the estate. In response, the attorney indicated that an accounting would be provided.
This lawsuit was then filed on October 4, 1999, but no request for a statutory accounting was made in the petition. In his first amended petition filed on December 15, 1999, and his second amended petition filed on July 10, 2000, appellant requested "an accounting of all income, revenue, expenses, transactions, transfers, disbursements, opportunities, investments of the Defendants, their agents, attorneys, representatives and affiliated companies and family members since January 1994." However, this request was not made under the provisions of the Probate Code and is much broader than the statutory accounting required by the executor of an estate. In his response to the motion for summary judgment, appellant requested for the first time both an equitable accounting and an accounting pursuant to the Probate Code. Therefore, appellant's request for a statutory accounting was not before the trial court at the time the summary judgment motion was filed, and there was no amended pleading to support that request. See Jones v. Wal-Mart Stores, Inc., 893 S.W.2d 144, 148-49 (Tex.App.--Houston [1st Dist.] 1995, no writ). Thus, that complaint may not defeat the summary judgment.
In arguing that he presented a substantial amount of evidence to defeat Inez's no- evidence summary judgment motion, appellant alternatively complains that an inadequate amount of time had passed for discovery at the time the motion was filed, and thus it was not yet ripe for the filing of such a motion. The basis asserted for this position is that Smithee's deposition was taken on February 23, 2001, and significant revelations occurred "concerning the conduct of the Defendants and parties associated with them." Also, documents were produced at that deposition which had not been previously produced. Therefore, he posits, these facts, coupled with his motion to recuse, greatly prejudiced his ability to respond.
Appellant filed a motion for continuance of the summary judgment hearing on the basis that he had filed a motion to compel "the production of documents which are essential to Plaintiff's case" and a motion to recuse the trial judge who was a material fact witness. The motion was denied, and appellant has not challenged that court's ruling. Moreover, appellant has failed to state any specific "significant revelations" which were first learned at the Smithee deposition, or the nature of the documents which were produced and the reasons why those documents being produced at that particular time prejudiced his ability to respond to the summary judgment motion.
Rule 166a(i) provides in relevant part:
(i) No-Evidence Motion. After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.
Tex. R. Civ. P. 166a(i). We review a court's decision on a request for continuance of a summary judgment motion because of an inadequate amount of time for discovery under an abuse of discretion standard, and the decision is made on a case specific basis. McClure v. Attebury, 20 S.W.3d 722, 729-30 (Tex.App.--Amarillo 1999, no pet.). The existence of adequate time for discovery is determined by the nature of the cause of action, the nature of the evidence necessary to controvert the motion, and the length of time the case has been active. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex.App.--Houston [14th Dist.] 2000, pet. denied); Dickson Const., Inc. v. Fidelity & Deposit Co. of Maryland, 5 S.W.3d 353, 356 (Tex.App.--Texarkana 1999, pet. denied). Other factors may include the amount of time the motion has been on file, whether the movant has requested stricter deadlines for discovery, the amount of discovery that has already taken place, and whether the discovery deadlines that are in place are specific or vague. Fuqua, 29 S.W.3d at 145.
The record shows that the original petition in this lawsuit was filed on October 4, 1999. The motion for summary judgment was filed on January 25, 2001. Appellant's motion to recuse was not filed until March 1, 2001, at the same time he filed his response to the motion for summary judgment. The basis for that recusal motion was that the judge was likely to be a material witness in the case because he refused to submit jury questions in the wrongful death lawsuit brought by Inez and Earl which concerned appellant's rights. (4) The hearing on the motion for summary judgment took place on June 21, 2001, after appellant's recusal motion had been ruled on.
Furthermore, every case is governed by a discovery control plan. Tex. R. Civ. P. 190.1. Inez asserts, and appellant has not contradicted the assertion, that this case was governed by Level 2, under which all discovery must be conducted during the discovery period, which begins when suit is filed and continues until the earlier of 30 days before the date set for trial or nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery. Tex. R. Civ. P. 190.3(b)(1). While evidence of the first written discovery does not appear in the record, the summary judgment evidence shows that appellant, Earl and Inez were all deposed in July 2000, and it was more than nine months later before the hearing on the motion for summary judgment took place. The comment to the rule states that a "discovery period set by pretrial order should be adequate time opportunity for discovery unless there is a showing to the contrary, and ordinarily a motion under paragraph (i) would be permitted after the period but not before." Id. Notes and Comments. Appellant has not alleged or shown that the motion for summary judgment was filed prior to the end of the discovery period, and we find no abuse of discretion on the part of the trial court in refusing to grant a continuance.
Appellant also argues that his claims are not barred by the statute of limitations because his causes of action accrued at the time of the settlement agreement between the parties in the wrongful death lawsuit and the dispersion of the settlement proceeds, while Inez asserts that the various causes of action began to accrue on the date the wrongful death lawsuit was filed. The wrongful death lawsuit was filed on May 19, 1994, and this lawsuit on October 4, 1999, more than four years later. However, the settlement agreement in the wrongful death lawsuit was signed on May 27, 1999. We have discussed the merits of the summary judgment motion as if the statute of limitations was not an issue and found the trial court's granting of the motion to have been warranted. Therefore, it is not necessary for us to rule on the limitations issue.
Finally, in positing that he presented substantial evidence to defeat the no-evidence motion for summary judgment, appellant argues the same evidence which we have already discussed. Therefore, we overrule appellant's issue and affirm the judgment of the trial court.
John T. Boyd
Chief Justice
Publish.
1. The summary judgment evidence indicates that originally, the will was filed as a muniment of title only.
2. Inez claimed she did not tell Smithee that appellant did not want to participate, but
her attorneys contacted appellant and told her that was what appellant said.
3. 4.