NUMBER 13-20-00350-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE MATTER OF BUMSTEAD FAMILY IRREVOCABLE TRUST
On appeal from the Probate Court No. 1
of Harris County, Texas.
ORDER
Before Chief Justice Contreras and Justices Benavides and Longoria
Order Per Curiam
On March 10, 2022, this Court handed down its memorandum opinion in this
cause. See In re Matter of Bumstead Family Irrevocable Tr., No. 13-20-00350-CV, 2022
WL 710159, at *1 (Tex. App.—Corpus Christi–Edinburg Mar. 10, 2022, no pet. h.) (mem.
op.).1 Appellants Taylor Moss (Taylor) in his individual capacity; Taylor as Trustee of the
1 This appeal was transferred to this Court from the Fourteenth Court of Appeals in Houston
pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§ 22.220(a) (delineating the jurisdiction of appellate courts); id. § 73.001 (granting the supreme court the
authority to transfer cases from one court of appeals to another at any time that there is “good cause” for
the transfer).
TCM Trust, Bumstead Living Trust, Bumstead Family Trust, Bumstead Survivor’s Trust,
and Sylvia M. Bumstead Revocable Trust, and Manager of Wolf Trot Properties, LLC and
Wolf Trot Properties, LLC d/b/a Melia Investments, LLC; DeisoMoss, LLC; and
DeisoMoss Property Management, LLC, have now filed a motion for rehearing in which
they request that the Court “address several arguments that were briefed by [a]ppellants
but not addressed in the opinion.” According to appellants, “[a]nalyzing these arguments
will provide needed clarity for the appellate process and will ensure that the Court has not
overlooked arguments that, if grappled with, would have changed holdings in the
Opinion.”
The appellees, Debra M. Holzworth, Kathryn S. Marcotte, and Carol Bumstead
Moss, individually, as Trustees of their respective Exempt Trusts, as Trustees of their
respective Descendant’s Trusts, as Co-Trustees of the Bumstead Family Irrevocable
Trust, and as Named Co-Trustees of the Bumstead Family Trust (beneficiaries), filed a
response to the motion for rehearing. In short, the beneficiaries contend that the motion
for rehearing “neither assails the judgment nor contends that there is any error in a single
word that the Court wrote.” According to the beneficiaries, the Court’s opinion addresses
each of the three issues presented on appeal with “ample explanation of the sufficiency
of the evidence and the trial court’s discretion.”
We deny appellants’ motion for rehearing.
I. ISSUES, ARGUMENT, AND OPINIONS
An appellant’s opening brief “must state concisely and without argument all issues
or points presented for review.” TEX. R. APP. P. 38.1(f); see Rohrmoos Venture v. UTSW
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DVA Healthcare, LLP, 578 S.W.3d 469, 480–81 (Tex. 2019). The Texas Supreme Court
has “firmly mandated that courts broadly construe issues to encompass the core
questions and to reach all issues subsidiary to and fairly included within them.” Rohrmoos
Venture, 578 S.W.3d at 480; see TEX. R. APP. P. 38.9. We apply this mandate
“reasonably, yet liberally,” so that the merits of an appeal are addressed whenever
“reasonably possible.” Rohrmoos Venture, 578 S.W.3d at 480 (quoting Ditta v. Conte,
298 S.W.3d 187, 190 (Tex. 2009)).
The appellate rules provide that an “appellant may file a reply brief addressing any
matter in the appellee’s brief.” TEX. R. APP. P. 38.3; Jennings v. Jennings, 625 S.W.3d
854, 868–69 (Tex. App.—San Antonio 2021, pet. denied). “The Texas Rules of Appellate
Procedure do not allow an appellant to include in a reply brief a new issue in response to
some matter pointed out in the appellee’s briefs but not raised by the appellant’s original
brief.” Jennings, 625 S.W.3d at 868 (quoting Dallas County v. Gonzales, 183 S.W.3d 94,
104 (Tex. App.—Dallas 2006, pet. denied)); see Fallon v. MD Anderson Physicians
Network, 586 S.W.3d 58, 73 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).
Nevertheless, “courts of appeals can consider arguments and authorities in a reply brief
that are related to the arguments in the original brief.” Chambers v. State, 580 S.W.3d
149, 161 (Tex. Crim. App. 2019); see McAlester Fuel Co. v. Smith Int’l, Inc., 257 S.W.3d
732, 737 (Tex. App.—Houston [1st Dist.] 2007, pet. denied); Hutchison v. Pharris, 158
S.W.3d 554, 563 (Tex. App.—Fort Worth 2005, no pet.).
Appellate courts are required to address “every issue raised and necessary to final
disposition of the appeal.” TEX. R. APP. P. 47.1; see Sloan v. Law Office of Oscar C.
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Gonzalez, Inc., 479 S.W.3d 833, 834 (Tex. 2016). This rule is mandatory. See Sloan, 479
S.W.3d at 834; see also Lance v. Robinson, 543 S.W.3d 723, 740 (Tex. 2018). A
memorandum opinion, as was issued in this case, need be “no longer than necessary to
advise the parties of the court’s decision and the basic reasons for it.” TEX. R. APP. P.
47.4.
II. ANALYSIS
Appellants assert that they presented six arguments in their briefing that were not
addressed or analyzed in our sixty-three-page memorandum opinion: (1) certain
safeguards prevented imminent and irreparable harm; (2) no evidence shows that a
receiver was the only adequate remedy; (3) the trial court entered findings inappropriate
for temporary relief; (4) the trial court erred by finding that Taylor had a duty abrogated by
the settlor and the trust agreements; (5) the trial court erroneously excluded evidence;
and (6) the trial court was not permitted to use a temporary injunction to grant key parts
of the ultimate relief requested by any cause of action. Appellants request that we review
these “overlooked” arguments.
As a fundamental matter, we disagree that these arguments were “overlooked.” In
our opinion, we considered all arguments necessary to address the core questions
presented and reached all issues subsidiary to and fairly included within them. See
Rohrmoos Venture, 578 S.W.3d at 480. Our opinion was “no longer than necessary to
advise the parties of the court’s decision and the basic reasons for it.” TEX. R. APP. P.
47.4. The arguments referenced on motion for rehearing were considered on original
submission and factored in the Court’s analysis and decision in this appeal. We
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nevertheless address these arguments briefly in this order to assuage appellants’
concerns regarding the scope of our review.
A. Temporary Relief and Ultimate Relief
Appellants contend that this Court’s opinion did not address their arguments that
“The Trial Court Entered Findings Inappropriate for Temporary Relief” and “The Trial
Court Was Not Permitted To Use A Temporary Injunction To Grant Key Parts Of The
Ultimate Relief Requested By Any Cause Of Action.” Appellants made these arguments
in connection with their first issue in their opening brief. We explicitly considered,
discussed, and rejected these contentions in several pages in our memorandum opinion.
B. Evidentiary Error
Two of appellants’ arguments pertain to evidentiary error. Appellants presented
three issues on appeal, none of which concerned the erroneous admission or exclusion
of evidence. Appellants do not contend, on original briefing or now on rehearing, that the
trial court’s erroneous admission or exclusion of evidence resulted in an improper
judgment. Appellants assert that this Court failed to address their argument that “no
evidence shows that a receiver was the only adequate remedy.” As we acknowledged in
our opinion, appellants did not argue that the trial court erred in appointing a receiver, and
we addressed their contentions regarding the receiver’s authority, actions, and the
resultant effect on the status quo in our opinion.
Appellants also assert that the Court failed to address their argument that the trial
court erroneously excluded evidence and argument regarding Taylor’s lease of the Hardy
Road Property and Sylvia’s intent to transfer that property to Taylor. Assuming without
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deciding that the record supports appellants’ contention regarding the trial court’s actions,
and in the absence of a bill of exception or offer of proof, we note that while the trial court
occasionally limited the scope of the underlying hearing, appellants nevertheless
presented argument and evidence regarding both issues, and our opinion addresses
these matters accordingly.
C. Duty to Disclose
Appellants assert that our opinion failed to address their argument that the trial
court erred by finding that Taylor breached his duty to disclose the transfer of the Hardy
Road Property because Sylvia instructed him not to disclose the transaction and the trust
agreement altered Taylor’s duties of disclosure because it stated, in essence, that a
successor trustee may not be held responsible for the acts or omissions of a previous
trustee. As acknowledged by appellants, our opinion “mention[s]” the argument that
Sylvia’s instructions and the trust agreement “alter a trustee’s default duty to disclose.”
Both the trial court and this Court considered the evidence of Taylor’s actions, not
Sylvia’s, in considering whether Taylor breached his duties as trustee. Further, neither on
original submission nor on rehearing have appellants offered authority for the proposition
that Sylvia’s instructions to Taylor regarding concealment of this transaction obviated his
own acts as trustee, nor have appellants cited or discussed the applicability of Texas
Property Code § 114.002. See TEX. PROP. CODE ANN. 114.002 (delineating the
circumstances under which a successor trustee may be liable for a breach of trust of a
predecessor).
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D. Safeguards
Finally, we address appellants’ contention that “safeguards prevented imminent
and irreparable harm.” On original submission, appellants asserted that the beneficiaries
could not show that a temporary injunction was necessary to prevent a probable,
imminent, and irreparable harm before final adjudication of their causes of action because
“many” safeguards protected the Trusts’ property. Appellants argued: (1) “the Trusts’ real
property cannot be physically moved or concealed, and it is largely undeveloped[,] which
means that it cannot suffer severe property damage,” (2) “the trial court enjoined [Taylor]
from ‘taking any action or attempted action to sell, transfer, conceal, pledge, deposit,
encumber, gift or otherwise remove or dispose of any asset of the Trusts and/or Entities,’”
(3) the “[b]eneficiaries filed a lis pendens for the Trusts’ assets, effectively blocking any
potential sale of those assets,” (4) Taylor “has consistently increased the value of the
Trusts’ assets,” (5) “interests in Ridescka Limited Fund—the company that owns the
primary real property at issue—cannot be transferred to anyone who is not a direct
descendent of the Settlors,” and (6) “the trial court has been asserting its ‘exclusive
jurisdiction over all assets.’”
Two of these safeguards concern the realty at issue—appellants argue that the
real property “cannot suffer severe property damage” and that a lis pendens would
prevent the realty at dispute from being sold. Appellants cite no authority for the
proposition that realty cannot suffer severe property damage where it “cannot be
physically moved or concealed, and it is largely undeveloped.” The Court’s opinion
applies black-letter law that when unique realty is at issue, an applicant for a temporary
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injunction can show imminent, irreparable harm. And, contrary to appellants’ assertions,
a lis pendens does not prevent sale of the realty. See Neel v. Fuller, 557 S.W.2d 73, 76
(Tex. 1977) (op. on reh’g) (“If two litigants claim the ownership to a tract of land in a
lawsuit, and if lis pendens has been filed, either of the litigants may freely convey to third
parties....”); In re Miller, 433 S.W.3d 82, 85 (Tex. App.—Houston [1st Dist.] 2014, orig.
proceeding) (a lis pendens “does not prevent conveyance” of land). Finally, appellants’
contentions fail to consider that the assets in dispute encompass not only real property
but also include businesses and liquid assets.
Two of appellants’ safeguards concern the trial court’s actions enjoining Taylor
from, inter alia, concealing or disposing of assets, and assuming jurisdiction over the
assets at issue. These alleged safeguards, however, are contained within the temporary
injunction that is subject to appeal here.
In the final two “safeguards,” appellants argue that Taylor “has consistently
increased the value of the Trusts’ assets” and that “interests in Ridescka Limited Fund—
the company that owns the primary real property at issue—cannot be transferred to
anyone who is not a direct descendent of the Settlors.” However, neither of these two
assertions protect the beneficiaries from Taylor’s claims of entitlement to the family’s
assets. We further note that the beneficiaries have alleged, even after appeal, that Taylor
continued to mismanage and deplete trust assets.
III. CONCLUSION
The Court, having examined and fully considered the appellants’ motion for
rehearing, the beneficiaries’ response, and appellants’ reply, is of the opinion that the
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motion for rehearing should be denied. Accordingly, without modifying our opinion, we
deny rehearing.
PER CURIAM
Delivered and filed on the
5th day of July, 2022.
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