Runyan v. Mullins

864 S.W.2d 785, 1993 WL 435903
CourtCourt of Appeals of Texas
DecidedDecember 7, 1993
Docket2-92-200-CV
StatusPublished
Cited by35 cases

This text of 864 S.W.2d 785 (Runyan v. Mullins) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Runyan v. Mullins, 864 S.W.2d 785, 1993 WL 435903 (Tex. Ct. App. 1993).

Opinion

OPINION

WEAVER, Justice.

This summary judgment appeal involves the issue of whether a survivor’s trust instrument was effectively amended by the surviving grantor. The more specific question is whether a letter signed by the surviving grantor, taken together with other related correspondence and documents, which were not signed by the grantor, was sufficient to amend the trust.

Appellants argued that the proposed trust amendment was not effective and their motion seeking summary judgment to that effect was denied. At the same time, appellees sought and obtained a summary judgment holding that the trust instrument was effectively amended.

*787 By this appeal, appellants attack the denial of their motion for summary judgment and the granting of the summary judgment for appellees. We reverse and render judgment for appellants.

The survivor’s trust, which is the subject of this appeal, evolved from a trust agreement executed on July 3, 1978, by Edgar Runyan, and his wife, Cecil N. Runyan. That agreement provided that on the death of the first grantor to die, the original trust was to be divided into equal separate parts, one being referred to as the “Decedent’s Trust” and the other being referred to as the “Survivor’s Trust.” The decedent’s trust was to be irrevocable. However, the survivor’s trust could be amended and/or revoked, in whole or in part, during the survivor’s life, “by instrument in writing signed by the surviving Grantor and delivered to Trustee.” The death of Mrs. Runyan in 1983 resulted in the division of the original trust into two trusts, one being the decedent’s trust, which is not involved in this appeal, and the other being the survivor’s trust, the subject of this appeal.

On April 22,1985, Edgar Runyan amended the survivor’s trust to provide that upon his death the trust property would be distributed one-half to Lorna Mullins, who is one of the appellees, and one-half to appellants. There is no dispute concerning the terms or validity of the April 22, 1985, amendment of the survivor’s trust.

In July of 1991, the trustee sent a letter to Marvin Brown, the attorney for the trust, regarding a request to amend the survivor’s trust. This letter was dated July 17, 1991, and a proposed trust amendment was included within the body of the letter. The proposed trust amendment called for elimination of the disposition of trust property to appellants and for all trust property to go to appellees in varying shares.

On August 9,1991, the trustee sent a letter to Edgar Runyan regarding the proposed trust amendment. The terms of the proposed trust amendment were not included in the August 9 letter, but this letter referred to enclosing a copy of the July 17, 1991, letter which was sent to Marvin Brown. The August 9 letter also instructed Edgar Run-yan that if he wanted to proceed with the proposed amendment, to sign and date a copy of the August 9 letter and a copy of the July 17 letter. However, neither a copy of the August 9 letter or the July 17 letter was enclosed with the original of the August 9 letter.

The trustee was apparently informed of this error and on August 13, 1991, the trustee sent Edgar Runyan a letter stating: “I have enclosed the copy of the letter which was mailed to you on August 9,1991, indicating a place for your approval of the letter.” The August 13 letter included a copy of the August 9 letter, but did not include a copy of the July 17 letter. Edgar Runyan signed and dated the copy of the August 9 letter. However, Edgar Runyan never did sign and date a copy of the July 17 letter, the only document which included the proposed trust amendment.

On September 9,1991, the trustee mailed a formally prepared Amendment of Trust Agreement to Edgar Runyan for his review. The trustee also requested to visit with Edgar Runyan at a later date for the purpose of signing and dating the Amendment of Trust Agreement in the presence of a notary. However, on September 18, 1991, Edgar Runyan had a stroke and was taken to the hospital. He was unable to execute the Amended Trust Agreement before his death on October 1, 1991. On January 13, 1992, the trustee filed an Original Petition for In-terpleader seeking a declaration of the interests of the appellees and the appellants in the survivor’s trust.

Before addressing the issue of whether the survivor’s trust was amended, we will first address appellees’ concern with appellants’ point of error. Appellees point out that when both parties file summary judgment motions, and one is granted and one is denied, the appellate court may consider the denial if the appealing party complains of both the granting of the opponent’s motion and the denial of its own motion. Phillips Natural Gas Co. v. Cardiff, 823 S.W.2d 314, 317 (Tex.App.—Houston [1st Dist.] 1991, writ denied). Appellees further allege that appellants’ sole point of error only complains of *788 the denial of appellants’ motion for summary judgment and not the granting of appellees’ motion. It may be true that the literal wording of appellants’ point of error does not attack the trial court’s granting of appellees’ motion for summary judgment. However, because appellate courts will liberally construe points of error, the literal wording of the point of error is not all that we consider. See Pool v. Ford Motor Co., 715 S.W.2d 629, 632-33 (Tex.1986); O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex.1976).

Assignments of error are designed to accomplish several purposes, one of which is “to point the court to the particular rulings or ground of error on which the party intends to rely for reversing the judgment.” Miller v. Fenner, Beane & Ungerleider, 89 S.W.2d 506, 509 (Tex.Civ.App.—Eastland 1936, writ dism’d). It is also the purpose of an assignment of error “to apprise the adverse party of the rulings, actions, or other parts of the proceedings as to which it is his purpose to contend that there was error.” Id. Therefore, “[i]f a ‘point’ is sufficient to direct the Court’s attention to the matter complained of, the Court will look to the ‘point’ and the statement and argument thereunder to determine the question of reversible error.” O’Neil, 542 S.W.2d at 114 (quoting Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943)).

We hold that appellants’ point of error is sufficient to advise this court that appellants are contesting both the denial of their motion and the granting of appellees’ motion. It is also sufficient to apprise appel-lees of exactly what rulings appellants are contesting on appeal. Both parties have briefed and argued the denial of appellants’ motion, as well as the granting of appellees’ motion. Appellees cannot claim they were unaware appellants were challenging the granting of the motion in appellees’ favor. In fact, appellees’ own brief points out that this is an appeal from the granting of a Summary Judgment in their favor.

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Bluebook (online)
864 S.W.2d 785, 1993 WL 435903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/runyan-v-mullins-texapp-1993.