Wright v. Greenberg

2 S.W.3d 666, 1999 Tex. App. LEXIS 6803, 1999 WL 694949
CourtCourt of Appeals of Texas
DecidedSeptember 9, 1999
Docket14-98-00987-CV
StatusPublished
Cited by49 cases

This text of 2 S.W.3d 666 (Wright v. Greenberg) 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
Wright v. Greenberg, 2 S.W.3d 666, 1999 Tex. App. LEXIS 6803, 1999 WL 694949 (Tex. Ct. App. 1999).

Opinions

MAJORITY OPINION

MAURICE E. AMIDEI, Justice.

Karon Rosenfield Wright (Karon), individually and as trustee of two testamentary trusts, appeals from two summary judgments for Joyce Z. Greenberg (Joyce), independent executrix of her deceased husband’s (Jacob’s) estate and trustee of a trust established by him prior to his death. In three issues, Karon contends the trial court erred in granting summary judgments in favor of Joyce because (1) there is no evidence that Jacob exercised the power of appointment in his will, and Jacob was estopped to exercise the power of appointment, (2) Joyce was estopped to assert the statute of limitations or other affirmative defenses, and (3) Joyce failed to negate the discovery rule by proving Karon discovered or should have discovered Jacob’s alleged breach of trust. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND.

Lurine Karon Greenberg (Lurine) was Jacob’s first wife, and she died in 1975. Karon is Jacob’s and Lurine’s daughter, and is the same person known as Abby Greenberg Rosenfield. In her will, Lurine left all of her residuary estate to Jacob in trust, and directed him to divide the trust estate equally between the “Jacob Green-berg Trust” and the “Abby Greenberg Ro-senfield Trust.” By the terms of her will, Lurine named Jacob the trustee and beneficiary of the Jacob Greenberg Trust (Jacob’s Trust), and named Jacob the trustee of the Abby Greenberg Rosenfield Trust (Karon’s Trust). Jacob was given the discretionary power to distribute the trust income and corpus of Karon’s Trust to Karon in such amounts as he believed “for the best interests” of Karon. Upon the death of Jacob, Lurine’s will appointed Karon as successor trustee of Karon’s Trust. Lurine’s will gave Jacob “the power to appoint the entire remaining principal of Jacob’s Trust, free of the trust, by will, irrespective of the time of his death, in favor of his estate.” Should Jacob fail to exercise that power, Lurine’s will provided that the remaining principal of Jacob’s Trust passed to Karon’s Trust with Karon as successor trustee.

Jacob died in 1995 and his will named his second wife, Joyce, the independent executrix of his will. That will provided:

By this Will, I intend to dispose of all my property (that owned by me and that over which I have any power of disposition), real, personal and mixed, of whatever kind and wherever situated, including any property over which I may have a power of appointment (emphasis added).

In the residuary clause of Jacob’s will, he left all of the “rest, residue and remainder” of his estate to the trustee or successor trustee of the Jacob Greenberg Family Trust created in 1988. After Jacob died, and his will was admitted to probate, Ka-ron sued Joyce for an accounting of both trusts, damages for Jacob’s alleged mishandling the trusts, a declaratory judgment that Jacob’s will was not a valid exercise of the power of appointment in Lurine’s will, and an order that the corpus of Jacob’s Trust be turned over to Karon as successor trustee to the two testamentary trusts established by Lurine’s will.

Joyce filed a motion for partial summary judgment, alleging that Jacob’s will effectively exercised the power of appointment given to him under Lurine’s will as a matter of law. Karon responded alleging that Jacob’s will did not specifically refer to the power of appointment in Lurine’s will, nor did Jacob’s will refer to the property subject to the power of appointment. Furthermore, Karon contended Jacob’s will did not dispose of the property over which he had a power of appointment, but only stated his “intention” to dispose of proper[670]*670ty over which he had a power. Thereafter, Karon filed her second amended original petition alleging additionally that Jacob was estopped to exercise the power of appointment, and Joyce was estopped to assert the statute of limitations and all other affirmative defenses to Karon’s actions for accounting, breach of trust, and claims for damages. By her second amended original answer, following Ka-ron’s amended petition, Joyce contended Karon’s claims for an accounting are barred by the four-year statute of limitations, and Karon knew or should have known of Jacob’s alleged mishandling of the trust within the four-years from the alleged breach of trust. Joyce filed a second motion for summary judgment further contending she was not estopped from asserting any and all defenses, and that Ka-ron’s actions regarding the funding, distribution or administration of Karon’s Trust were time barred. The trial court granted Joyce’s first motion for partial summary judgment on the ground that she established as a matter of law that Jacob’s will exercised his testamentary power of appointment over the assets of Jacob’s Trust under Lurine’s will. The trial court also granted Joyce’s second motion for partial summary judgment without stating any grounds. Both summary judgments were made final and severed from the remaining part of the case for purposes of this appeal.

II. SUMMARY JUDGMENTS.

A. Standard of Review.

In order to prevail on summary judgment, the defendant as movant must disprove at least one of the essential elements of each of the plaintiffs causes of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). This burden requires the movant to show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In determining whether a material fact issue exists to preclude summary judgment, evidence favoring the nonmovant is taken as true, and all reasonable inferences are indulged in favor of the nonmovant. Id.; see also Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Any doubt is resolved in favor of the nonmov-ant. Nixon, 690 S.W.2d at 548-49; see also Doe, 907 S.W.2d at 477.

A summary judgment may be affirmed on any of the movant’s theories which has merit. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex.1996). Appellate courts should consider all grounds for summary judgment (1) on which the trial court rules, (2) the movant preserves for appellate review, and (3) are necessary for final disposition of the appeal when reviewing a summary judgment. Id. at 627. The appellate court may consider other grounds that the movant preserved for review and the trial court did not rule on in the interest of judicial economy. Id.

B. The Exercise of the Power of Appointment.

In issue one, Karon contends Jacob’s will was not an effective exercise of the power of appointment given to him by Lurine’s will because: (1) Jacob’s will makes no disposition of the property over which he had the power, but only states his “intention” to dispose of all of his property; (2) Jacob’s will does not refer to the power of appointment granted in Lurine’s will; and (3) Jacob’s will makes no reference to the property that is the subject of the power of appointment.

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Bluebook (online)
2 S.W.3d 666, 1999 Tex. App. LEXIS 6803, 1999 WL 694949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-greenberg-texapp-1999.