## NO. 12

- 10

- 00 058

- C V

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RITA MELISSA MCKEE MASSEY, § APPEAL FROM THE THIRD INDIVIDUALLY AND AS SUCCESSOR TRUSTEE OF THE FRANK J. MASSEY REVOCABLE LIVING TRUST, APPELLANT

V. § JUDICIAL DISTRICT COURT OF

ROBERT CHARLES MCKEE AND WAYNE LEE MASSEY, APPELLEES § HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION Rita Melissa McKee Massey, individually and as successor trustee of the Frank J. Massey
R evocable L iving T rust, appeals from the trial court’s judgment in Robert McKee’s suit for fraud and money had and received. In five issues, Me lissa contends the trial court lacked personal jurisdiction over her as trustee and erred in ordering a construct ive trust, and, alternatively, she requests modification of the award. Because we agree the trial court never obtained personal jurisdiction over Melissa in her capacity as trustee, we dismiss the case against her as trustee of the Frank J. Massey Revoca ble Living Trust

.

B ACKGROUND On July 11, 2000, Martha Massey was the payee of a check for $1,049,564.45 as her share of a settlement arising out of diet drug litigation. However, Martha had died on May 29, 1999. Frank Massey, whom Martha had divorced o n March 4, 1996, obtained the check. Frank2

and Martha had three children, Wayne, Crystal, and Melissa. Apparently, Frank shared only a small portion of Martha’s estate with their children. Martha’s oldest son, Robert, had not lived near the family for ye ars. In 2006, he learned that Frank, who was not his father, had obtained control of Martha’s estate. In 2008, Robert sued
Frank and his three half

- siblings, Wayne, Melissa, and Crystal, for fraud and money had and
received to recover his interest in Mar tha’s estate. Frank died July 21, 2009. In September 2009, Robert file d his second amended petition

o mitt ing Frank as a defendant, retaining Wayne and Crystal as defendants, and naming Melissa, individually, as heir, beneficiary, and successor trustee o f the Fr ank J . Massey Trust , as a defendant. Afte r a short bench trial , the trial court signed a judgment ordering that Robert recover $276,366.11 from Melissa as successor trustee of the Frank J. Massey Revocable Living Trust and that Wayne recover $246, 366.11 from Melissa as successor trustee of the Frank J. Massey Revocable Living Trust. The court also impos ed a constructive trust on two tracts of
land that were to be sold and ordered that a portion of the proceeds were to be applied to satisfy
the ind ebtedness to Robert and Wayne. Additionally, the court ordered that Robert take nothing against Crystal. 1

J URISDICTION O VER T RUSTEE In her first issue, Melissa contends the trial court erred in finding her liable as successor
trustee of the Frank J. Mass ey Revocable Living Trust. She argues that since she was not served with process as trustee, and she made no appearance as trustee, the trial court lacked personal jurisdiction of her as trustee. Applicable Law Personal jurisdiction concerns the court’s power to bind a particular person or party. See
CSR Ltd. v. Link , 925 S.W.2d 591, 594 (Tex. 1996) (orig. proceeding). For a trial court to have jurisdiction over a party, the party must be properly before the court in the pending controversy
as authorize d by procedural statutes and rules. See Perry v. Ponder , 604 S.W.2d 306, 322 (Tex. App.

– Dallas 1980, no writ). Generally, a trial court does not have jurisdiction to enter a judgment or order against a defendant unless the record shows proper service of citation on the

1 Robert has not compla ined of the take nothing judgment in favor of Crystal. Therefore, we do not reach the merits of the trial court’s ruling on that claim.3

defendant or waiver of service by a general appearance by the defendant. T EX

. R. C IV

. P. 124;
Werner v. Colwell , 909 S.W.2d 866, 869

- 70 (Tex. 1995). If the trial court renders a judgment without acquiring jurisdiction of the parties, the judgment is void. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 863 (Tex. 2010). Whether a trial court has personal jurisdiction over a defendant is a question of law that the appellate court reviews de novo. See Am. Type Culture Collection, Inc. v. Co leman , 83 S.W.3d 801, 805

- 06 (Tex. 2002). Analysis There is no dispute that Melissa was properly served in her individual capacity. However, the judgment does not order Melissa to do anything in her individual capacity. Robert’s second amended petition , in which he includes Melissa as a defendant in her capacity as

successor trustee , states: “All Defendants have appeared herein and no service is necessary.”
Robert has not at t empt ed to dispute the assertion that Melissa was not served in her capacity a s trustee. Although Melissa appeared as a witness at trial, nothing in the record indicates she considered herself to be appearing as trustee. Nothing in the record indicates she waived her right to service of process. Thus, the trial court lacked perso nal jurisdiction over Melissa in her capacity as successor trustee of the Frank J . Massey Revocable Living T rust. See Werner , 909
S.W.2d at 869

- 70. Accordingly, the portions of the trial court ’s judgment ordering that Robert and Wayne recover from Meliss a in her capacity as trustee are void. See Joachim , 315 S.W.3d
at 863. We sustain Melissa’s first issue. In her second issue, Melissa contends the trial court erred in imposing a constructive trust because the judgment against her as trustee is void. W e agree. A constructive trust is an equitable remedy created by the courts to prevent unjust enrichment. Hubbard v. Shankle , 138 S.W.3d 474, 485 (Tex. App.

– Fort Worth 2004, pet. denied). A court cannot create a remedy in the absence of jurisdiction. Se e Werner , 909 S.W.2d at 869

- 70. We sustain Melissa’s second
issue.

D ISPOSITION Because Melissa was never served with process in her capacity as trustee of the Frank J. Massey Revocable Living Trust, the trial court did not have jurisdiction over her as trustee. Therefore, we vacate all portions of the jud gment rendered against Melissa in her capacity as
trustee. We dismiss the case against Melissa as trustee of the Frank J. Massey Revocable Living4

Trust. See T EX

. R. A PP

. P. 43.2(e); Fulton v. Finch , 1 62 Tex. 351, 356, 346 S.W.2d 823, 827 (1961) (orig. proceeding) (If the trial court lacks jurisdiction, the appellate court only has jurisdiction to set the judgment aside and dismiss the cause.). We need not reach Melissa’s remaining issues. See T EX

. R. A PP

. P. 47.1.



### J AMES 

### T. W ORTHEN Chief Justice

Opinion delivered February 16 , 2011. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)