Opinion
01-21-00166-CV 01-21-00477-CV
12-06-2022
PHIROZ MEHERWAN BOYCE, Appellant v. ZARINE BOYCE, Appellee
On Appeal from the Probate Court No. 2 Harris County, Texas Trial Court Case No. 474053
Panel consists of Justices Landau, Guerra, and Farris.
MEMORANDUM OPINION
April L. Farris Justice
This case involves the construction of a trust agreement that the settlors undisputedly executed and the question whether the settlors executed an earlier trust agreement when no signed copy of such an agreement has been produced. Following 1 the death of his father, appellant Phiroz Meherwan Boyce filed a petition to remove his stepmother, appellee Zarine Boyce, as the trustee of a trust that she and her husband had created several years earlier. Phiroz, a remainder beneficiary under the trust, alleged that Zarine had breached her fiduciary duties. In addition to seeking Zarine's removal as trustee, Phiroz also sought declaratory relief. The trial court granted summary judgment in favor of Zarine and dismissed Phiroz's claims. In a later order, the court ordered Phiroz to pay a portion of Zarine's attorney's fees.
Because several individuals involved in this case share the same last name, we refer to them by their first names for clarity and ease of reading.
Phiroz filed two notices of appeal. In appellate cause number 01-21-00166-CV, he argues that the trial court erred by granting Zarine's no-evidence and traditional summary judgment motion concerning (1) the existence of the earlier trust agreement; and (2) the revocability of the executed trust agreement. In appellate cause number 01-21-00477-CV, Phiroz argues that the trial court erroneously awarded Zarine attorney's fees because (1) Zarine requested attorney's fees more than thirty days after the trial court granted summary judgment dismissing Phiroz's claims and therefore the court lacked plenary power to award fees; and (2) Zarine's pleadings did not support an award of attorney's fees under the Texas Trust Code or the Declaratory Judgments Act.
We affirm. 2
Background
Dr. Meherwan Boyce married Zarine Boyce in the 1970s. Meherwan had two children from his first marriage, including his son Phiroz Boyce. Zarine and Meherwan did not have any children together.
In 2015, Meherwan and Zarine approached attorney Michael Riddle concerning the preparation of estate planning documents, including wills, a revocable living trust agreement, and powers of attorney. In March 2015, Riddle emailed drafts of these documents to Meherwan and Zarine accompanied by a letter describing and explaining the provisions of each instrument. Riddle explained that the draft trust agreement created a trust that was revocable during both grantors' lifetimes, but "[u]pon the death of the first spouse, the revocable trust is divided into two separate trusts, Trust A and Trust B," and Trust B was an irrevocable trust. Riddle emphasized that the documents were drafts and the Boyces could make changes to the documents if they wished.
Riddle met with the Boyces on May 5, 2015, to review the documents and answer any questions that they had. At this meeting, the Boyces informed Riddle of changes that they wanted made to the documents, in particular to the trust agreement. According to Riddle, one of the Boyces' goals was, after the death of the first spouse, "to provide for the survivor of the two of them for their lifetime." Meherwan and Zarine did not sign any documents in Riddle's presence on that date. 3
Riddle revised the estate planning documents and again emailed Meherwan and Zarine a letter that explained each of the documents and the changes that he had made to them. He met with the Boyces on July 7, 2015. Meherwan executed a will on this date. He devised his personal effects to Zarine. He devised the remainder of his estate to the "Meherwan Phiroz Boyce and Zarine Meherwan Boyce Revocable Living Trust established by that certain Trust Agreement executed earlier this day by myself as a Grantor ...."
Meherwan and Zarine also executed the Meherwan Phiroz Boyce and Zarine Meherwan Boyce Revocable Living Trust on July 7, 2015. The trust agreement named Meherwan and Zarine as co-trustees, with the survivor to be the sole trustee upon the death of the other grantor. The trust agreement contained the following provisions concerning powers of revocation of the trust:
Riddle's letter to the Boyces stated that "the Trust will be revocable during your lifetimes" and that, upon the death of the surviving spouse, "the remainder of the assets in the revocable trust pass IN TRUST to the beneficiaries set out in Article V unless the surviving spouse amends or revokes the revocable living trust." Riddle also included a diagram illustrating the assets of the trust and what would happen upon the death of a grantor. This diagram stated: "Entire Revocable Living Trust maintains its character as a revocable trust. Surviving spouse is sole beneficiary. Trust does not become irrevocable until survivor of both Meherwan and Zarine passes away."
2.01 During the lives of the Grantors, this trust may be amended, altered, revoked, or terminated, in whole or in part, or any provision hereof, by an instrument in writing signed by both Grantors or either Grantor, in the event one Grantor is deceased or incapacitated, and delivered to the Trustee(s); provided, however, that the trust may not be amended to change the obligations, duties, or rights of the Trustee(s) without the written consent of the Trustee(s) to such amendment.4
2.03 If, at the time of a Grantor's death, there has not been executed and placed of record, in the real property records of the County Clerk or Recorder of the county in which such Grantor has his or her primary residence, a written Revocation of this trust, signed and recorded within thirty (30) days of such death, it shall be conclusively presumed for all purposes that this trust has not been revoked. Any subsequently discovered attempt by a Grantor to revoke this trust shall be ineffective and void ab initio.
The trust agreement also provided that during the lives of the grantors, the trustee "shall distribute up to the entire net INCOME of the trust to or for the benefit of the Grantors" or a surviving grantor, if the other grantor is deceased. The agreement also required the trustee, upon written request by the grantor, to "distribute to or for the benefit of either Grantor all or any part of the PRINCIPAL of the trust." The trust agreement further provided that, upon the death of the surviving grantor, a portion of the remaining trust estate would be distributed to a charitable beneficiary with the remainder "divided in half and distributed one-half to the heirs-at-law of each Grantor as if both Grantors had died unmarried and intestate." The trust agreement contained a "no contest" provision, stating that if any beneficiary contested the validity of the trust or instituted a proceeding "to prevent any provision hereof from being carried out in accordance with its terms," all benefits to the beneficiary under the trust would be revoked.
Also on July 7, 2015, Meherwan and Zarine executed general warranty deeds that transferred ownership of their Houston condominium and their Galveston 5 condominium to the trust. Both deeds listed the grantee as "Meherwan Phiroz Boyce and Zarine Meherwan Boyce, Co-Trustees of the Meherwan Phiroz Boyce and Zarine Meherwan Boyce Revocable Living Trust, dated May 5, 2015."
Meherwan died in December 2017, while the Houston condo was under contract to be sold to a third party. Zarine, as sole trustee of the trust, finalized the sale in January 2018. She used the proceeds of this sale to purchase a new residence in Houston, and she placed title to this property in the name of the trust. She sold the Galveston condo in April 2018.
After Meherwan's death, Phiroz asked Zarine for a copy of Meherwan's will. Over the next several months, and after conducting some online research in which he learned about the trust, Phiroz also requested documents concerning the assets of Meherwan's estate, documents concerning the trust and the assets owned by the trust, and an accounting.
In February 2019, Phiroz, as a remainder beneficiary of the trust, filed the underlying proceeding seeking removal of Zarine as trustee. He alleged that Zarine failed to inform him of the existence of the trust and failed to timely disclose material facts relating to Meherwan's estate and the funding of the trust. Phiroz asserted that Zarine breached her duty of full disclosure to him as a beneficiary of the trust, and therefore her removal as trustee was proper under the Texas Trust Code. Phiroz requested that the trial court designate a successor trustee and also declare that 6 Phiroz's removal petition "does not fall within the prohibited acts listed in the no contest provision" of the trust agreement.
Phiroz twice amended his removal petition. In his live pleading, he alleged that Meherwan and Zarine created two trusts: one on May 5, 2015, and one on July 7, 2015. Phiroz alleged that Meherwan and Zarine executed a trust in May 2015 and funded it with their Houston and Galveston condos. As evidence of this claim, he pointed to the July 2015 general warranty deeds for the properties, a January 2017 deed of trust securing a loan on the Galveston condo, and numerous documents from Zarine's January 2018 sale of the Houston condo and April 2018 sale of the Galveston condo, all of which named the trust as "the Meherwan Phiroz Boyce and Zarine Meherwan Boyce Revocable Living Trust, dated May 5, 2015." (Emphasis added.) He alleged that although Meherwan and Zarine executed documents creating a trust in July 2015, they had not funded that trust as of the date of Meherwan's death; instead, this trust was first funded when Zarine purchased a new residence in Houston following Meherwan's death. He further alleged that both trusts were revocable during the lifetimes of both Meherwan and Zarine, but both trusts became irrevocable after the death of the first grantor.
Phiroz sought to compel Zarine to produce a "proper trust accounting" of all receipts and disbursements, allocated between income and principal; a list and description of all property being administered by the trust; the balance of bank 7 accounts; and a list of all trust liabilities. Phiroz again sought removal of Zarine as trustee, alleging that she failed to inform Phiroz of the existence of the trusts; did not timely disclose facts relating to Meherwan's estate and the funding of the trusts; did not recognize the existence of the May 2015 trust; did not recognize Phiroz's rights as a beneficiary of the trusts; removed property from the trusts; failed to properly account; and commingled trust funds with her personal funds.
Phiroz also alleged that Zarine, as trustee, owed him fiduciary duties and she breached those duties. Specifically, she allegedly breached her duty to disclose all material facts concerning the trusts to Phiroz, including facts relating to the existence of the trusts, funding of the trusts, and disposition of the gross proceeds from the sale of several assets. Zarine also allegedly commingled trust funds with her own funds by depositing trust funds in her personal bank account and using trust funds and her personal funds to purchase and maintain a new residence. Phiroz sought the imposition of a constructive trust.
Additionally, Phiroz sought several declarations by the trial court. He requested that the court construe the trust documents and declare, among other things, the rights of Zarine and the beneficiaries, the terms of the trust, the income distribution standard, and whether the trust is revocable or irrevocable. Phiroz alleged that the July 2015 trust agreement was ambiguous, particularly with respect to revocability of the trust. He requested that the trial court declare that Meherwan 8 and Zarine executed two valid trust agreements-one in May 2015 and one in July 2015-and he sought a declaration of the corpus of each trust. Phiroz again requested a declaration that his removal petition had not invoked the "no contest" clause in the trust agreement. Phiroz also requested that the trial court award him attorney's fees under both the Trust Code and the Declaratory Judgments Act.
Zarine generally denied Phiroz's allegations. In her responsive pleading, she specifically argued that Phiroz, as a remainder beneficiary, had no rights to principal or income until Zarine's death. She further argued that she had no obligation to disclose material financial information concerning the trust to Phiroz, but to the extent that she did have such an obligation, she provided him with sufficient information. She also argued that Phiroz's claims for her removal as trustee under the Trust Code and his request for a declaration that his petition did not invoke the trust's no contest provision were both meritless. Finally, she argued that Phiroz's removal petition was brought in bad faith and without just cause; the court should deny Phiroz's request for attorney's fees; and the court should award Zarine her attorney's fees. Zarine did not specify a statutory provision that entitled her to attorney's fees.
Zarine terminated the July 2015 trust in February 2021. She then moved for traditional and no-evidence summary judgment on "the purported May 2015 Trust 9 and terminated July Trust." She argued that Phiroz could produce no competent summary judgment evidence that the Boyces had executed a trust in May 2015. Instead, he could only point to Riddle's letter describing the terms of the draft trust agreement sent to the Boyces in March 2015, an unsigned copy of a draft trust agreement, and "references to a May Trust in ancillary real estate documents." Zarine characterized these references as a "scrivener's error" and argued that Riddle "mistakenly left references to a May Trust in those documents after he rewrote his May draft and turned it into what became the July Trust. Mr. Riddle's office then failed to update those documents, which were created to fund the Boyce's July Trust." Zarine argued that because Phiroz could not produce a signed trust agreement executed by Meherwan and Zarine in May 2015, Phiroz could not satisfy the statute of frauds contained in Trust Code section 112.004 and any trust created in May 2015 was therefore unenforceable.
Zarine first moved for traditional and no evidence summary judgment in December 2019. The trial court denied this motion in February 2020.
Zarine also argued that the trust agreement executed in July 2015 provided that the trust remained revocable after the death of one grantor and gave her, as trustee, complete control over the assets of the trust. She further argued that because the trust remained revocable until her death, Phiroz, as a contingent remainder beneficiary, could not establish that she owed him any fiduciary duties. Instead, all 10 her actions-including terminating the trust-were expressly authorized by the terms of the trust agreement.
The trial court granted Zarine's summary judgment motion on March 4, 2021. The order stated that it is:
ORDERED, ADJUDGED and DECREED that Zarine Meherwan Boyce's Motion for Summary Judgment on the Purported May 2015 Trust and Terminated July Trust is GRANTED in its entirety, and all of Phiroz Boyce's claims based on a May 2015 trust or a July 2015 trust are dismissed.
This order did not dispose of either party's request for attorney's fees. The order also did not include finality language, such as a statement that the order disposed of all parties and all claims and was final and appealable. Phiroz filed a notice of appeal from this order on March 31, 2021, and this appeal was assigned appellate cause number 01-21-00166-CV.
On April 7, 2021, Zarine filed a motion requesting that the trial court award her attorney's fees and expenses. In this motion, Zarine pointed out that Phiroz had asserted claims under the Declaratory Judgments Act, a statute which permits the award of attorney's fees regardless of which party sought declaratory relief or prevailed on the claim. She requested that the trial court award her attorney's fees under the Declaratory Judgments Act. In a later filing, Zarine argued that she was also entitled to attorney's fees because Phiroz had brought an action under the Texas Trust Code, which also allows for recovery of attorney's fees. 11
Phiroz opposed Zarine's request for attorney's fees. Among other arguments, he contended that Zarine filed her request for attorney's fees more than thirty days after the trial court granted summary judgment in her favor. Thus, the trial court lacked plenary power to award attorney's fees. Phiroz also argued that Zarine could not rely on the Declaratory Judgments Act for an award of attorneys' fees because she was attempting "to recast the breach of fiduciary duty claims and the removal claim, all of which attorney's fees are not recoverable, into the declaratory action in order to obtain attorneys' fees." He further argued that, as a beneficiary of the trust, he had a right under the Trust Code to bring a good faith action seeking Zarine's removal.
On July 26, 2021, the trial court signed a final judgment. In this judgment, the trial court recited that it had granted Zarine's summary judgment motion on March 4, 2021, and that this summary judgment order "fully disposes of all of Phiroz's claims against Mrs. Boyce in this cause." The court also found that Zarine had incurred reasonable and necessary attorney's fees and expenses under the Trust Code and Declaratory Judgments Act "to defeat Phiroz's claims and requests for declaratory judgments in this litigation." The court awarded Zarine $145,000 in triallevel attorney's fees, $10,205.18 in expenses, and a total of $153,000 in conditional appellate attorney's fees. This judgment specifically stated that it "disposes of all remaining claims and parties with prejudice." 12
Phiroz filed a notice of appeal from this judgment on August 25, 2021, and this appeal was assigned appellate cause number 01-21-00477-CV.
Appellate Jurisdiction
Although neither party challenges our appellate jurisdiction over these two appeals or requests that we dismiss either appeal for want of jurisdiction, Zarine argues that the trial court's March 2021 summary judgment order-the order that is the subject of Phiroz's appeal in appellate cause number 01-21-00166-CV-was not a final judgment because it did not dispose of either party's request for attorney's fees. We therefore address, as an initial matter, whether the March 2021 summary judgment order was final or interlocutory and whether we lack jurisdiction over the appeal from that order.
Generally, with a few mostly statutory exceptions, a party may take an appeal only from a final judgment. Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 632 (Tex. 2021); Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 387 (Tex. 2020). In cases in which a judgment has been rendered without a conventional trial on the merits, the judgment is not final unless it (1) actually disposes of all pending claims and parties or (2) clearly and unequivocally states that it finally disposes of all claims and parties, even if it does not actually do so. In re Guardianship of Jones, 13 629 S.W.3d 921, 924 (Tex. 2021) (per curiam); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).
The right to an appeal should not be "lost by an overly technical application of the law." Lehmann, 39 S.W.3d at 205. When we receive a prematurely filed notice of appeal in a civil case, we are "not required to docket and hold an appeal open indefinitely as 'an appellate place holder until there is a final appealable judgment.'" Fusion Indus., LLC v. Edgardo Madrid &Assocs., LLC, 624 S.W.3d 843, 849 (Tex. App.-El Paso 2021, no pet.) (quoting Ganesan v. Reeves, 236 S.W.3d 816, 817 (Tex. App.-Waco 2007, pet. denied)). However, we may treat a case that is appealed before the trial court renders a final judgment as a prematurely filed appeal and permit the defect to be cured. Id. The Rules of Appellate Procedure expressly allow this, providing that in civil cases a prematurely filed notice of appeal "is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal." TEX. R. APP. P. 27.1(a).
If the trial court renders a final judgment before we dismiss a prematurely filed notice of appeal, the jurisdictional defect is cured, and we treat the notice of appeal "as having been filed on the day of the trial court's final judgment." Fusion Indus., 624 S.W.3d at 849; Lerma v. Forbes, 144 S.W.3d 18, 20 (Tex. App.-El Paso 2004, no pet.); see Iacono v. Lyons, 6 S.W.3d 715, 717 (Tex. App.-Houston [1st Dist.] 1999, order). Thus, in situations in which a party files a premature notice 14 of appeal after an interlocutory summary judgment order and the trial court subsequently rules on the remaining claims and signs a final judgment disposing of all claims and all parties, the premature notice of appeal is deemed filed on the date of the final judgment and we have appellate jurisdiction over the appeal. See Fusion Indus., 624 S.W.3d at 849 ("To the extent Fusion's notice of appeal was premature, the later rendition of a final judgment in the trial court cured any defect."); Espalin v. Child.'s Med. Ctr. of Dallas, 27 S.W.3d 675, 681 (Tex. App.-Dallas 2000, no pet.) ("[A] document filed in an attempt to appeal an interlocutory order that later becomes final serves to appeal the final judgment.").
Here, it is undisputed that the trial court signed an order granting Zarine's "Motion for Summary Judgment on the Purported May 2015 Trust and Terminated July Trust . . . in its entirety" on March 4, 2021. The order further stated that "all of Phiroz Boyce's claims based on a May 2015 trust or a July 2015 trust are dismissed." On appeal, the parties dispute whether this order was a final judgment. Phiroz argues that it was, noting that the order dismissed all his claims against Zarine. Zarine argues that the order was not a final judgment, noting that it did not dispose of either party's claim for attorney's fees. She argues that, instead, the trial court signed a 15 final judgment on July 26, 2021, and this judgment recited the earlier summary judgment ruling and awarded Zarine attorney's fees.
Unlike the March 2021 summary judgment order, the final judgment signed in July 2021 stated that "all relief requested by any party and not expressly awarded herein is denied" and that the judgment "disposes of all remaining claims and parties with prejudice." See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001) (holding that when final judgment is rendered without conventional trial on merits, judgment is final for purposes of appeal if it (1) actually disposes of all claims and parties before court or (2) states with unmistakable clarity that it is final judgment as to all claims and parties).
Zarine has not, however, moved to dismiss Phiroz's appeal of the March 2021 order for lack of appellate jurisdiction. Instead, she argues that while the March 2021 order was not final, it was nevertheless appealable under the "probate exception" to the general rule that there can only be one final judgment for the purposes of appeal. See, e.g., In re Guardianship of Jones, 629 S.W.3d at 924-25 (noting that probate proceedings "present an exception to the one final judgment rule" and in these cases "multiple judgments final for purposes of appeal can be rendered on certain discrete issues") (internal quotations omitted); Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995) (establishing test for finality in probate and guardianship proceedings). Phiroz, while maintaining that the March 2021 order is final and appealable, also argues that the underlying proceeding is not a probate proceeding because it concerns the construction of a trust and not the probate of Meherwan's estate. See Haluska v. Haluska-Rausch, No. 03-11-00312-CV, 2012 WL 254639, at *2 (Tex. App.-Austin Jan. 24, 2012, no pet.) 16 (mem. op.) (concluding that probate exception to one final judgment rule did not apply because case concerned "the administration of trusts and could have been brought in the district court as well as the probate court" and because order being appealed did not dispose of all issues raised).
In his original and amended petitions seeking declaratory relief and removal of Zarine as trustee, Phiroz requested that the trial court award him attorney's fees. In his amended petitions, Phiroz specified that he sought attorney's fees under the Texas Trust Code, specifically section 114.064, and the Declaratory Judgments Act. See TEX. PROP. CODE § 114.064(a) ("In any proceeding under this code the court may make such award of costs and reasonable and necessary attorney's fees as may seem equitable and just."); TEX. CIV. PRAC. & REM. CODE § 37.009 ("In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just."). Zarine, in responding to Phiroz's removal petition, requested that the court find that Phiroz brought the petitions "in bad faith and without just cause," deny Phiroz his attorney's fees, and award Zarine her attorney's fees. Zarine's summary judgment motion did not address either party's request for attorney's fees.
The trial court's March 2021 summary judgment order stated as follows:
On this day, the Court considered Zarine Meherwan Boyce's Motion for Summary Judgment on the Purported May 2015 Trust and Terminated July Trust.17
After considering the pleadings, evidence, objections, and arguments of counsel, the Court finds that the Motion should be GRANTED in its entirety. It is therefore,
ORDERED, ADJUDGED and DECREED that Zarine Meherwan Boyce's Motion for Summary Judgment on the Purported May 2015 Trust and Terminated July Trust is GRANTED in its entirety, and all of Phiroz Boyce's claims based on a May 2015 trust or a July 2015 trust are dismissed.
This order did not mention or award attorney's fees to either party, and it did not include finality language purporting to dispose of all claims by all parties. See, e.g., Lehmann, 39 S.W.3d at 206 ("A statement like, 'This judgment finally disposes of all parties and all claims and is appealable', would leave no doubt about the court's intention.").
We therefore conclude that because the trial court's March 2021 order did not address Zarine's request for attorney's fees, the order did not dispose of all claims in the case and was therefore not a final judgment. See Farm Bureau Cnty. Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015) (per curiam) (concluding that summary judgment order that did not expressly mention attorney's fees was not final and appealable because order did not dispose of parties' competing claims for attorney's fees); Youngblood & Assocs., P.L.L.C. v. Duhon, 57 S.W.3d 63, 65 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (concluding that summary judgment order was not final because it did not dispose of party's claim for attorney's fees). 18
Because the March 2021 order was interlocutory, and not final, the trial court still had plenary power over the case when Zarine moved for an award of attorney's fees on April 7, 2021. See TEX. R. CIV. P. 329b(d) (providing that trial court has plenary power to modify, correct, or reform judgment within thirty days of date final judgment is signed); In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 230 (Tex. 2008) ("Under the current rules [of civil procedure], if no judgment is signed, no plenary-power clock is ticking."); see also Martin v. Tex. Dep't of Fam. & Protective Servs., 176 S.W.3d 390, 392 (Tex. App.-Houston [1st Dist.] 2004, no pet.) ("A trial court retains jurisdiction over a case for 30 days after it signs a final judgment or order.") (emphasis added).
We conclude that after the trial court signed the March 2021 summary judgment order, the court retained jurisdiction to rule on Zarine's motion for attorney's fees, and the award of attorney's fees to Zarine in July 2021 was not void. Cf. Akinwamide v. Transp. Ins. Co., 499 S.W.3d 511, 520 (Tex. App.-Houston [1st Dist.] 2016, pet. denied) ("Once the trial court's plenary power expires, the court generally lacks jurisdiction to act, and any orders it issues are typically void."). We overrule Phiroz's first issue in appellate cause number 01-21-00477-CV, in which he argues that the trial court lacked jurisdiction to rule on Zarine's motion for attorney's fees. 19
The March 2021 order was neither final nor appealable. Phiroz's notice of appeal from this order was therefore premature. However, the trial court later ruled on Zarine's request for attorney's fees and signed a final judgment that disposed of all claims and parties. The trial court's signing of a final judgment cured the jurisdictional defect, and we deem Phiroz's notice of appeal from the March 2021 order filed on the day of the trial court's final judgment. See TEX. R. APP. P. 27.1(a); Fusion Indus., 624 S.W.3d at 849; Lerma, 144 S.W.3d at 20; Espalin, 27 S.W.3d at 681; Iacono, 6 S.W.3d at 717. We therefore conclude that we have appellate jurisdiction over appellate cause number 01-21-00166-CV, which is Phiroz's appeal from the March 2021 order. See Fusion Indus., 624 S.W.3d at 849.
Summary Judgment
Phiroz raises two issues in appellate cause number 01-21-00166-CV. He first argues that he raised a fact issue on whether Meherwan and Zarine executed a trust in May 2015. He acknowledges that he was unable to produce a signed trust agreement executed in May 2015, but he argues that he presented evidence that a May trust existed, and under the rules relating to lost and destroyed instruments, this evidence is sufficient to defeat the statute of frauds. In his second issue, he argues that the trial court erred in granting summary judgment because the July trust agreement is ambiguous with respect to whether the trust is revocable after the death of one settlor. 20
A. Standard of Review
We review a trial court's summary judgment ruling de novo. Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535, 540 (Tex. 2021). When a party moves for both traditional and no-evidence summary judgment, we consider the no-evidence motion first. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). If the non-movant fails to meet his burden under the no-evidence motion, there is no need to address a challenge to the traditional motion, as it necessarily fails. Id. Any claims that survive no-evidence review are then reviewed under the traditional standard. Id. at 219-20.
After an adequate time for discovery, a party may move for no-evidence summary judgment. See TEX. R. CIV. P. 166a(i). No-evidence summary judgment is proper when there is no evidence of one or more essential elements of a claim or defense on which the adverse party bears the burden of proof at trial. JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021); TEX. R. CIV. P. 166a(i). A proper no-evidence summary judgment motion shifts the burden to the nonmovant to present evidence raising a genuine issue of material fact on each element challenged in the motion. JLB Builders, 622 S.W.3d at 864. A no-evidence challenge will be sustained if (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more 21 than a mere scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
The nonmovant presents more than a scintilla of evidence when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. If the evidence is so weak that it does no more than create a mere surmise or suspicion of a fact, the evidence is no more than a scintilla. Id. When reviewing a summary judgment ruling, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Hillis v. McCall, 602 S.W.3d 436, 440 (Tex. 2020) (quoting Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)).
To be entitled to traditional summary judgment, the moving party must demonstrate that no genuine issue of material fact exists and the party is entitled to judgment as a matter of law. JLB Builders, 622 S.W.3d at 864; see TEX. R. CIV. P. 166a(c). If the moving party carries this burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). As with no-evidence summary judgments, we view the evidence in the light most favorable to the nonmovant. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 551 (Tex. 2019). 22
B. Whether Summary Judgment Evidence Raised a Fact Issue on Existence of May Trust
The Texas Trust Code governs the creation, validity, and termination of trusts, as well as the powers and duties of trustees. A trustee may be removed in accordance with the terms of the trust instrument, or an interested person may petition the court for removal. TEX. PROP. CODE § 113.082(a). The court may, in its discretion, remove a trustee if:
(1) the trustee materially violated or attempted to violate the terms of the trust and the violation or attempted violation results in a material financial loss to the trust;
(2) the trustee becomes incapacitated or insolvent;
(3) the trustee fails to make an accounting that is required by law or by the terms of the trust; or
(4) the court finds other cause for removal.Id.
The Trust Code contains a statute of frauds. Section 112.004 provides that "[a] trust in either real or personal property is enforceable only if there is written evidence of the trust's terms bearing the signature of the settlor or the settlor's authorized agent." Id. § 112.004; Nolana Dev. Ass'n v. Corsi, 682 S.W.2d 246, 249 (Tex. 1984); see Episcopal Diocese of Fort Worth v. Episcopal Church, 602 S.W.3d 417, 433 (Tex. 2020) ("A trust is created only if the settlor manifests, in writing, an intention to create a trust ...."). When no written, signed document sets out the terms of the trust, the trust does not satisfy the statute of frauds. Wolfe v. Devon Energy Prod. Co., 23 382 S.W.3d 434, 445 (Tex. App.-Waco 2012, pet. denied) (concluding that settlor did not create valid express trust when no written document set out terms of trust and stating that use of "trustee" in deed was not sufficient, by itself, to create trust); Ayers v. Mitchell, 167 S.W.3d 924, 928 (Tex. App.-Texarkana 2005, no pet.) (stating that section 112.004 "requires a trust in either real or personal property to be created with a written document").
Deeds and other documents do not become ineffective if they have been lost or destroyed. Gause v. Gause, 496 S.W.3d 913, 917 (Tex. App.-Austin 2016, no pet.); see Bennett v. Romos, 252 S.W.2d 442, 445 (Tex. 1952) ("That the loss or destruction of a valid deed does not reverse or invalidate the transfer of title made by the deed is, of course, well settled."). "Production of the original document is excused when it is established that the document has been lost or destroyed." Gause, 496 S.W.3d at 917. If the original has been lost or destroyed, "[o]ther evidence of the contents of a writing is admissible." Id. A party may establish loss or destruction of a document "by proof of search" for the document "and inability to find it." Id. Section 112.004 "does not remove trust instruments from the operation of general rules relating to the proof of lost documents." Id.; see In re Estate of Berger, 174 S.W.3d 845, 847 (Tex. App.-Waco 2005, no pet.) (acknowledging section 112.004's statute of frauds provision but stating that "Rule of Evidence 1004 allows the admission of 'other evidence of the contents of a writing' if the original has been 24 lost or destroyed'"); TEX. R. EVID. 1004(a) (providing that original of writing is not required and other evidence of content of writing is admissible if "all the originals are lost or destroyed").
Here, Phiroz's claim for removal of Zarine as trustee is predicated on his contention that Meherwan and Zarine executed two valid trust agreements: one in May 2015 and one in July 2015. Phiroz acknowledges, however, that he was not able to produce a signed copy of a trust agreement executed in May 2015. He contends that the statute of frauds contained in section 112.004 should not apply to bar enforceability of a May 2015 trust agreement because, under the rules relating to proving lost or destroyed documents, he may rely on other evidence to establish the terms of a May 2015 trust. He argues that his summary judgment evidence raises a fact issue on the existence of a trust agreement executed in May 2015.
The summary judgment record contains a signed trust agreement executed on July 7, 2015, and Phiroz does not challenge the existence or the validity of this trust. Instead, he argues that this trust was the second trust created by Meherwan and Zarine, and they also created a trust in May 2015 that has different terms which are less favorable to a surviving spouse following the death of a settlor. In Zarine's deposition, Phiroz's counsel asked whether Meherwan signed a trust instrument in May 2015, and she responded, "I don't know. I don't think so. This [the July trust agreement] was the last-this was the first and last trust document that we did." 25 Riddle testified that he met with Zarine and Meherwan on May 5, 2015, but they wanted him to make changes to the draft trust agreement, and they did not sign any trust documents in his presence on that date.
As evidence that Meherwan and Zarine executed a trust in May 2015, Phiroz points to several documents from different real estate transactions, all of which reference a trust "dated May 5, 2015." For example, the general warranty deeds executed by Meherwan and Zarine on July 7, 2015, transferred their Houston and Galveston condos to "Meherwan Phiroz Boyce and Zarine Meherwan Boyce, Co-Trustees of the Meherwan Phiroz Boyce and Zarine Meherwan Boyce Revocable Living Trust, dated May 5, 2015."
When Zarine sold the Houston condo in January 2018 after Meherwan's death, the general warranty deed listed the grantor as "Zarine Meherwan Boyce, Sole Trustee of the Meherwan Phiroz Boyce and Zarine Meherwan Boyce Revocable Living Trust dated May 5, 2015." Other documents from the closing of this sale, including the HUD-1 Settlement Statement, also reference the trust as "the Meherwan Phiroz Boyce and Zarine Meherwan Boyce Revocable Living Trust dated May 5, 2015." One of the documents relating to this sale, an "Affidavit Regarding Trust" prepared by the title company, named the trust as "the Meherwan Phiroz Boyce and Zarine Meherwan Boyce Revocable Living Trust dated May 5, 2015" 26 and included a statement that "[t]he Trust was formed on May 5, 2015." Zarine signed this document under oath.
Zarine sold the Galveston condo in April 2018, and the general warranty deed for this sale, like the general warranty deed for the sale of the Houston condo, listed the grantor as "Zarine Meherwan Boyce, Sole Trustee of the Meherwan Phiro[z] Boyce and Zarine Meherwan Boyce Revocable Living Trust, Dated May 5, 2015." Zarine and Meherwan also obtained a mortgage on the Galveston condo in early 2017, and documents relating to this transaction, including the deed of trust and release of lien, referenced the borrower as "Meherwan Phiroz Boyce and Zarine Meherwan Boyce, Co-Trustees of the Meherwan Phiroz Boyce and Zarine Meherwan Boyce Revocable Living Trust, Dated May 5, 2015."
During the pendency of the litigation, the parties subpoenaed the mortgage company and title companies involved in these real estate transactions and sought documents, including any documents relating to a May 2015 trust agreement. None of the title companies produced a trust agreement signed in May 2015. Among the documents obtained from PHH Mortgage Company, the company involved with the January 2017 mortgage on the Galveston condo, was an unsigned "Certification of Trust," which stated that the name of the trust was the "Meherwan Phiroz Boyce and Zarine Meherwan Boyce Revocable Living Trust." Immediately following this certification in the documents produced by PHH Mortgage was a signature page for 27 a trust agreement, signed by Meherwan, Zarine, and two witnesses. The first line of this single page document was typewritten and stated, "THIS INSTRUMENT IS SIGNED And SEALED ON THIS THE__ DAY OF __ 2015." Handwritten into the blank spaces was "5" and "May." This page was notarized by Riddle, but was dated "this 7th day of July, 2015." The page number at the bottom of this document was 16. Aside from the handwritten date of May 5, this page, including all signatures and the page number, exactly matches the signature page of the July trust agreement. The documents produced by PHH Mortgage did not include the terms of a May trust agreement.
Phiroz also attached as evidence a draft trust agreement prepared by Riddle and purportedly sent to the Boyces in March 2015. This trust agreement clearly states on every page that it is a draft. The terms of this draft trust agreement match the summary of the trust agreement that Riddle described in his March 2015 letter to the Boyces. The unsigned signature page begins on page 18 of the draft trust agreement, and the space for the notary's signature appears on page 19. The pagination of this draft trust agreement does not match the pagination of the signature page obtained from PHH Mortgage.
Phiroz argues that the May 2015 trust agreement-a document that would be in Zarine's possession-is a lost or destroyed document and he can therefore use evidence other than the trust agreement itself to establish proof of the agreement. He 28 argues that his summary judgment evidence taken together raises at least a fact issue on the existence of a May 2015 trust agreement, the funding of a trust created in May 2015, and the terms of a May 2015 trust agreement sufficient to satisfy section 112.004's statute of frauds.
As support, Phiroz relies on the Austin Court of Appeals' opinion in Gause v. Gause. In Gause, Leonard Gause created an inter vivos trust and conveyed a tract of land composed of two parcels to the trust. See 496 S.W.3d at 916. The trust agreement allegedly set out his intentions with respect to the parcels and provided that the smaller parcel was to be transferred to his son Brendan and the larger parcel was to be held in trust by Leonard's wife, Rita, for her benefit for her lifetime and would then pass to four of their seven children. Id. Leonard later executed a will that referred to and incorporated the trust. Id. Two days after Leonard died, one of his children who was not a beneficiary of the trust, Jeannette, read the will and trust instrument to Rita and the other children and then took the documents to her home. Id. No one ever saw the trust instrument again. Id.
A couple of years later, Rita briefly lived with Jeannette, and Jeannette convinced Rita to convey the property to Jeannette for nominal consideration. Id. Rita later sued Jeannette to cancel the deed. Id. During that lawsuit, Rita testified concerning the existence and the terms of the trust. Id. at 917. The trial court rendered judgment cancelling the deed in favor of Jeannette and reestablishing that 29 Rita held title to the property in her individual capacity and as trustee. Id. at 916. Rita later conveyed the property to Brendan, who was not named as a beneficiary of the larger parcel, for nominal consideration. Id. Several years later, the other children learned of this conveyance and filed suit to determine and enforce the terms of the lost trust created by Leonard. Id.
Rita argued that the trial court erred in granting summary judgment based upon parol evidence of the terms of the trust. Id. at 916-17. In rejecting Rita's argument and upholding the trial court's summary judgment ruling, the Austin Court noted that production of original documents such as deeds or trusts "is excused when it is established that the document has been lost or destroyed." Id. at 917. If an original document has been lost or destroyed, other evidence, including parol evidence, is admissible to prove the contents. Id. The Austin Court noted that Rita had acknowledged that the original trust document was lost. Id. In fact, both Rita and Brendan testified to that fact in the earlier suit seeking to cancel the deed to Jeannette. Id. In that earlier lawsuit, Rita provided "sworn proof" establishing the existence and the terms of the trust agreement. Id. The Austin Court stated that while section 112.004's statute of frauds requires an individual seeking to enforce a trust in real property to present written evidence of the trust's terms signed by the settlor, the statute of frauds "does not remove trust instruments from the operation of general rules relating to the proof of lost documents." Id. 30
The Austin Court also applied the doctrine of judicial estoppel to bar Rita from attempting to create a fact question in the underlying suit by contradicting her sworn testimony from the deed-cancellation suit concerning the terms of the trust. Id. at 917-18. In the prior suit, Rita had made allegations concerning the terms of the trust in her verified petition; she testified in court concerning the existence and the terms of the trust; and she testified that she helped Leonard write and type the trust agreement. Id. at 918. In the later suit, Rita then swore in an affidavit that she had no memory of the trust and had never read a trust agreement. Id. The Austin Court refused to credit that affidavit testimony, noting that judicial estoppel "prevents a party who has made a sworn statement in a prior judicial proceeding from maintaining a contrary position in a subsequent proceeding." Id. The court therefore concluded that Rita was "barred from asserting any summary-judgment proof inconsistent with her proof in the prior deed cancellation suit establishing the existence and terms of the Trust." Id.
We disagree that this case is similar to Gause and that Phiroz has raised a fact issue that the May 2015 trust agreement is a lost or destroyed document. In Gause, sworn testimony existed concerning the existence and the terms of the trust that Leonard created. Jeannette read the executed will and trust agreement to Rita and the other children, and Rita later testified in a judicial proceeding about the terms of the trust and her having assisted Leonard in typing the trust agreement. See id. at 31 916-18; see also In re Estate of Berger, 174 S.W.3d at 847-48 (concluding that intervenor in administration of estate raised fact issue concerning whether trust agreement was lost and allowing parol evidence of contents of agreement when intervenor read will and trust agreement shortly before settlor's death and saw copy of agreement in settlor's home several days after her death). Here, no witness has testified that Meherwan and Zarine executed a trust agreement in May 2015, and no witness has provided proof of the terms of a trust agreement executed in May 2015.
Even if the real estate documents relied on by Phiroz created a fact issue on the existence of a trust agreement executed in May 2015, no evidence in the record establishes the terms of such an agreement. Phiroz relies upon the draft trust agreement that Riddle prepared for the Boyces and sent to them in March 2015, but even assuming that the Boyces executed a trust agreement in May 2015, there is no evidence that they executed the draft trust agreement provided by Riddle with no changes to the terms of this draft agreement.
Zarine presented summary judgment evidence-Riddle's testimony-that the Boyces wanted to make changes to the terms of the draft trust agreement. Although it is possible that Meherwan and Zarine nevertheless signed the draft trust agreement in May 2015 without notifying Riddle and without making any changes themselves to the terms of the draft trust agreement, it is also possible that they made changes to the draft trust agreement on their own and executed that agreement without 32 notifying Riddle. It is also possible that they did not sign any trust agreement at all until Riddle presented the revised agreement to them in July 2015. Without evidence from any witnesses that they saw or read a trust agreement executed by Meherwan and Zarine in May 2015 and the terms of that agreement, on this summary judgment record, the terms and contents of a May 2015 trust agreement are entirely speculative. See Brown v. Aztec Rig Equip., Inc., 921 S.W.2d 835, 846 (Tex. App.- Houston [14th Dist.] 1996, writ denied) ("Speculative and conclusory statements are inadequate to defeat competent summary judgment evidence.").
We overrule Phiroz's first issue in appellate cause number 01-21-00166-CV.
C. Whether Summary Judgment Evidence Raised a Fact Issue on Revocability of July Trust
Courts interpret trust instruments in the same way as wills, contracts, and other legal documents. Archer v. Moody, 544 S.W.3d 413, 417 (Tex. App.-Houston [14th Dist.] 2017, pet. denied); Myrick v. Moody Nat'l Bank, 336 S.W.3d 795, 802 (Tex. App.-Houston [1st Dist.] 2011, no pet.). Courts look to the four corners of the trust instrument to ascertain the settlor's intent. Myrick, 336 S.W.3d at 802; Hurley v. Moody Nat'l Bank of Galveston, 98 S.W.3d 307, 310 (Tex. App.- Houston [1st Dist.] 2003, no pet.). If possible, courts should construe the trust instrument to give effect to all its provisions so that no provision is rendered meaningless. Myrick, 336 S.W.3d at 802; see Archer, 544 S.W.3d at 417 ("A court 33 should give effect to every part of the instrument if the language is reasonably susceptible to a harmonious construction.").
Courts should determine the intention of the settlor "from the language in the instrument." Hurley, 98 S.W.3d at 310; see In re Ignacio G. & Myra A. Gonzales Revocable Living Tr., 580 S.W.3d 322, 328 (Tex. App.-Texarkana 2019, pet. denied) (stating that when interpreting trust instrument, we give each word and phrase its "plain, grammatical meaning unless it definitely appears that such meaning would defeat the parties' intent"). "The court's construction of a trust instrument should not 'add to, subtract from, amend, correct, reform, revise, or rewrite' the language used in the instrument." Archer, 544 S.W.3d at 417 (quoting Parker v. Parker, 131 S.W.3d 524, 531 (Tex. App.-Fort Worth 2004, pet. denied)). If the trust instrument is silent on a matter, the provisions of the Trust Code govern. Myrick, 336 S.W.3d at 802.
The construction of a trust instrument is a question of law for the trial court. Archer, 544 S.W.3d at 417; Hurley, 98 S.W.3d at 310. If the language of the trust instrument is unambiguous, there is no need for a court to construe the instrument because it speaks for itself. Archer, 544 S.W.3d at 417; Soefje v. Jones, 270 S.W.3d 617, 628 (Tex. App.-San Antonio 2008, no pet.) ("If the words in the trust are unambiguous, we do not go beyond them to find the grantor's intent."). A trust instrument is unambiguous if the court can give a definite legal meaning or 34 interpretation to the instrument's words. Lee v. Rogers Agency, 517 S.W.3d 137, 145 (Tex. App.-Texarkana 2016, pet. denied). "Only when the trust instrument's language is uncertain or reasonably susceptible to more than one meaning will it be considered ambiguous so that its interpretation presents a fact issue precluding summary judgment." Id. An ambiguity does not arise merely because the parties advance conflicting interpretations of the trust instrument. In re Ignacio G. &Myra A. Gonzales Revocable Living Tr., 580 S.W.3d at 328.
Trusts that are created under Texas law are revocable unless made specifically irrevocable. Ayers, 167 S.W.3d at 930. The irrevocability of a trust must appear in the express terms of either the instrument creating the trust or an instrument modifying the trust. TEX. PROP. CODE § 112.051(a); Ayers, 167 S.W.3d at 930; see Citizens Nat'l Bank of Breckenridge v. Allen, 575 S.W.2d 654, 657 (Tex. App.- Eastland 1978, writ ref'd n.r.e.) (stating that statutory predecessor to Trust Code provided that every trust shall be revocable by settlor during settlor's lifetime "unless expressly made irrevocable by the terms of the instrument"). The language making a trust irrevocable must be express; a trust will not be made irrevocable "by inference or implication." McCauley v. Simmer, 336 S.W.2d 872, 881 (Tex. App.-Houston 1960, writ dism'd); see Benavides v. Mathis, 433 S.W.3d 59, 64 (Tex. App.-San Antonio 2014, pet. denied) ("[T]he instrument must clearly reflect the settlor's intent to make the trust irrevocable."). 35
The July trust agreement stated as follows with respect to revoking the trust:
ARTICLE II.
Power of Revocation
2.01 During the lives of the Grantors, this trust may be amended, altered, revoked, or terminated, in whole or in part, or any provision hereof, by an instrument in writing signed by both Grantors or either Grantor, in the event one Grantor is deceased or incapacitated, and delivered to the Trustee(s); provided, however, that the trust may not be amended to change the obligations, duties, or rights of the Trustee(s) without the written consent of the Trustee(s) to such amendment.
2.02 If the entire trust is revoked by either Grantor, the Trustee shall pay or transfer to the Grantors all of the trust estate and shall execute and deliver to the Grantors all instruments which are necessary or appropriate to release all interest of the Trustee(s) in the trust estate.
2.03 If, at the time of a Grantor's death, there has not been executed and placed of record, in the real property records of the County Clerk or Recorder of the county in which such Grantor has his or her primary residence, a written Revocation of this trust, signed and recorded within thirty (30) days of such death, it shall be conclusively presumed for all purposes that this trust has not been revoked. Any subsequently discovered attempt by a Grantor to revoke this trust shall be ineffective and void ab initio.
Phiroz argues that sections 2.01 and 2.03 of the trust agreement are inconsistent: section 2.01 provides that the trust may be revoked during the lives of the grantors or if one grantor is deceased or incapacitated, but section 2.03 makes the trust irrevocable after a grantor's death unless a revocation was executed and on file with the county property records at the time of the grantor's death. He argues that the trust agreement is ambiguous because it can be read as allowing a grantor to revoke the trust at any time, even after the death of the other grantor, but it can also 36 be read as providing that any attempt to revoke the trust after a grantor's death is ineffective and void ab initio. He contends that because the trust agreement is ambiguous and resolving ambiguities in trust documents is the province of the factfinder, the trial court erred in granting summary judgment on Phiroz's claims.
We disagree that these provisions are inconsistent and that the trust agreement is ambiguous. The plain language of section 2.01 states that the trust can be revoked by a writing signed by both grantors "or either [g]rantor, in the event one [g]rantor is deceased or incapacitated." This provision allows a single grantor to revoke the trust after the death of the other grantor.
Section 2.03 provides that if at the time one grantor dies, a written revocation of the trust is not recorded in the real property records within thirty days of the death, "it shall be conclusively presumed for all purposes that this trust has not been revoked." The last sentence of section 2.03 states that "[a]ny subsequently discovered attempt by a [g]rantor to revoke this trust shall be ineffective and void ab initio." Reading the two sentences of section 2.03 together, it requires any revocation of the trust by a grantor to be on file with the county property records within thirty days of that grantor's death; any later discovered attempt by that grantor to revoke the trust is ineffective. This provision is intended to prevent disputes over whether a deceased grantor revoked the trust or not: unless there is a written revocation on file 37 within thirty days of the grantor's death, they are "conclusively presumed" to have not revoked the trust.
As Zarine points out, section 2.03 says nothing about the ability of the surviving grantor to revoke the trust after the first grantor's death. Section 2.01 allows the surviving grantor to revoke the trust after the death of the first grantor, and section 2.03 does not prohibit the surviving grantor from taking this action. Furthermore, section 2.03 applies with respect to the surviving grantor's death: if no written revocation of the trust from the surviving grantor is on file with the county property records within thirty days of the surviving grantor's death, it is conclusively presumed that the surviving grantor did not revoke the trust. After that point in time, any attempt to produce a written revocation purportedly by the surviving grantor will not be effective to revoke the trust.
Reading sections 2.01 and 2.03 together and giving effect to both provisions, as we must when construing a trust agreement, we conclude that these sections are not inconsistent. See Archer, 544 S.W.3d at 417; Myrick, 336 S.W.3d at 802. We agree with Zarine that sections 2.01 and 2.03 can be given definite legal meaning, and therefore the trust agreement is not ambiguous. See Lee, 517 S.W.3d at 145. The trust agreement unambiguously provides that it is revocable, even after the death of a grantor. See Ayers, 167 S.W.3d at 930 (stating that trusts created under Texas law are revocable unless expressly made irrevocable). We hold that because the trust 38 agreement is unambiguous, the construction of the trust agreement was a legal question for the trial court, and the court did not err in granting Zarine's motion for summary judgment. Archer, 544 S.W.3d at 417; Hurley, 98 S.W.3d at 310.
We overrule Phiroz's second issue in appellate cause number 01-21-00166-CV.
Attorney's Fees
In his second issue in appellate cause number 01-21-00477-CV, Phiroz argues that the trial court abused its discretion by awarding attorney's fees to Zarine. Specifically, he argues that Zarine is not entitled to attorney's fees under the Declaratory Judgments Act or the Trust Code because she did not plead for such relief and the issue was not tried by consent.
Generally, in Texas, each party must pay its own attorney's fees. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 483 (Tex. 2019); Ashford Partners, Ltd. v. ECO Res., Inc., 401 S.W.3d 35, 41 (Tex. 2012) ("As a general rule, litigants in Texas are responsible for their own attorney's fees and expenses in litigation."). However, fee-shifting can be authorized by either statute or contract, and in that situation, the party seeking a fee award must prove the reasonableness and necessity of the requested attorney's fees. Rohrmoos Venture, 578 S.W.3d at 483; Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 915 (Tex. 2015) 39 ("Generally, a party may not recover attorney's fees unless authorized by statute or contract.").
A trial court's judgment must conform to the pleadings; thus, a party seeking attorney's fees must specifically and affirmatively plead for them. Wells Fargo Bank, 458 S.W.3d at 915; Whallon v. City of Houston, 462 S.W.3d 146, 165 (Tex. App.-Houston [1st Dist.] 2015, pet. denied). Generally, a party seeking attorney's fees must specify "the legal standard under which the fees are sought." Patriot Contracting, LLC v. Shelter Prods., Inc., 650 S.W.3d 627, 655 (Tex. App.-Houston [1st Dist.] 2021, pet. denied); see Intercontinental Grp. P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 659 (Tex. 2009) (holding that party waived right to attorney's fees under contract when party only pleaded for fees pursuant to statute). However, if the party pleads facts which, if true, entitles her to the relief sought, she "need not specifically plead the applicable statute in order to recover [attorney's fees] under it." Whallon, 462 S.W.3d at 165. If the opposing party fails to specially except to a pleaded request for attorney's fees, courts construe the pleading requesting fees liberally in favor of the pleader. Id.; see Patriot Contracting, 650 S.W.3d at 656 (concluding that pleading supported request for attorney's fees in judicial foreclosure proceeding even though parties did not invoke specific statute authorizing fees when parties sought judicial foreclosure, requested attorney's fees, and trial court did not sustain special exceptions). 40
Both the Trust Code and the Declaratory Judgments Act authorize the award of attorney's fees in a proceeding under the respective statutes. See TEX. PROP. CODE § 114.064(a) ("In any proceeding under this code the court may make such award of costs and reasonable and necessary attorney's fees as may seem equitable and just."); TEX. CIV. PRAC. & REM. CODE § 37.009 ("In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just."); Lesikar v. Moon, 237 S.W.3d 361, 375 (Tex. App.-Houston [14th Dist.] 2007, pet. denied) ("Under both the Declaratory Judgments Act and the Texas Property Code, the trial court may award reasonable and necessary attorney fees as are equitable and just.").
Neither statute includes language limiting recovery of attorney's fees to a prevailing party. Severs v. Mira Vista Homeowners Ass'n, 559 S.W.3d 684, 712 (Tex. App.-Fort Worth 2018, pet. denied) ("Indeed, under section 37.009, a trial court has discretion to even award attorney's fees to a nonprevailing party."); Hachar v. Hachar, 153 S.W.3d 138, 142 (Tex. App.-San Antonio 2004, no pet.) (stating that section 114.064 is "virtually identical" to fees provision in Declaratory Judgments Act and that award of fees in declaratory judgment action is "clearly within the trial court's discretion and is not dependent on a finding that a party 'substantially prevailed'"). "[A]ttorney's fees may be awarded under [the Declaratory Judgments] Act to a party who presented no claims, and even where the 41 declaratory judgment sought concerns a question of law on which no jury finding is necessary." Lederer v. Lederer, 561 S.W.3d 683, 700 (Tex. App.-Houston [14th Dist.] 2018, no pet.) (quoting U.S. Fid. & Guar. Co. v. Coastal Ref. & Mktg., Inc., 369 S.W.3d 559, 571 (Tex. App.-Houston [14th Dist.] 2012, no pet.)); Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 452 (Tex. App.-Houston [1st Dist.] 2007, no pet.) ("One need not even be the prevailing party or seek affirmative relief to be awarded attorney's fees under the [Declaratory Judgments Act], as long as the award of fees is equitable and just.").
We review an award of attorney's fees under both statutes for an abuse of discretion. In re Estate of Johnson, 340 S.W.3d 769, 788, 792 (Tex. App.-San Antonio 2011, pet. denied) (stating that award of fees under section 114.064 is "within the sound discretion of the trial court"); Indian Beach Prop. Owners' Ass'n v. Linden, 222 S.W.3d 682, 706 (Tex. App.-Houston [1st Dist.] 2007, no pet.) ("An award of attorney's fees under the Declaratory Judgments Act is reviewed for abuse of discretion.").
Here, Phiroz asserted a claim under the Trust Code requesting removal of Zarine as trustee. He also asserted a claim for declaratory relief under the Declaratory Judgments Act, seeking a declaration that his removal petition did not fall under the trust's "no contest" provision and declarations relating to the terms of the trust. He sought the recovery of attorney's fees, and in his amended petitions, he 42 pleaded for fees under Property Code section 114.064 and Civil Practice and Remedies Code section 37.009.
Zarine, in her response to Phiroz's petition, generally denied the allegations, opposed Phiroz's requested relief, and argued that his claims were meritless. She specifically argued that there was no basis to remove her as trustee under the Trust Code and that the trial court should deny Phiroz's request for declaratory relief. She also stated, "This Court should find that the Petition for Removal is brought in bad faith and without just cause. Phiroz should be denied his request for attorney's fees. To the contrary, he should reimburse Mrs. Boyce for her attorney's fees and expenses." She did not cite a specific statutory provision that would entitle her to attorney's fees. The record does not reflect that Phiroz filed special exceptions or that the trial court sustained special exceptions to Zarine's pleading.
Zarine's response requested that the court deny Phiroz his attorney's fees and award her attorney's fees, and the response discussed two statutes-Property Code section 114.064 and the Declaratory Judgments Act-that allows for recovery of fees in any proceeding under the statutes, even recovery of fees by a party who does not assert an affirmative claim under the statute. Zarine's response put Phiroz on notice that she was seeking recovery of her attorney's fees, and she pleaded facts that, if true, would defeat Phiroz's claims and could support an award of attorney's fees to her. See Patriot Contracting, 650 S.W.3d at 656 (noting that Texas follows 43 "fair notice" standard of pleading "which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant") (quoting Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-97 (Tex. 2000)); Whallon, 462 S.W.3d at 165. We conclude that Zarine's pleadings were sufficient to support an award of attorney's fees to her. See Whallon, 462 S.W.3d at 165. We therefore hold that the trial court did not abuse its discretion by awarding attorney's fees to Zarine under the authority of either Property Code section 114.064 or the Declaratory Judgments Act.
We overrule Phiroz's second issue in appellate cause number 01-21-00477-CV.
We note that Phiroz does not challenge on appeal the amount of attorney's fees awarded to Zarine, nor does he argue that the fee award was unreasonable, unnecessary, inequitable, or unjust. See TEX. PROP. CODE § 114.064(a); TEX. CIV. PRAC. & REM. CODE § 37.009.
Conclusion
We affirm the judgment of the trial court. All pending motions are dismissed as moot. 44