### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 23
- 00319
- CV

Karen Bass and Lynn Smith, in their capacity as Successor Co
- Trustees on behalf of the Amended and Restated George E. Bog le and Nancy T. Bogle Joint Revocable Trust, dated March 2, 2 0 21 , Ap pellant s

v. George Michael Bogle and Katherine Leigh Bogle Leavitt , Appellee s

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY NO. C
- 1
- PB
- 22
- 002842 , THE HONORABLE GUY S. HERMAN , JUDGE PRE SIDING

M E M O R A N D U M O P I N I O N

Kare n Bass an d Lynn Smith, in their ca pacity as Successor Co

- Trustees on b ehalf
of the Amended and Restated George E. Bogle and Nancy T. Bog le Joint Re v oca ble Trust, dated
Marc h 2, 2021, appeal from the prob ate court ’ s final judgment that in corporated its order
gran ti ng the motio n for partial summary judgment of the c ourt

- appointed g uardian ad li tem (GAL) for Nan cy T. Bogle. 1 For the following re asons, we affirm in part and reverse in part the

1 I n Mar ch 2024 , a ppe llee George Michael Bogle (Mik e) filed a sugges tion of d eath , informing this C ourt that Nancy T . Bogle (Nancy) d ied on or about Febr uary 25, 202 4

. Mike represented that he anticipated the guardian a d litem (GAL) would with draw from representing Nancy ’ s i nte rests and that Mike would ta ke the GAL ’ s plac e as the executor of Nancy ’ s es tate. Although Na ncy is not a na m ed party, she was the beneficiary of the operative trust duri ng the pendency of this ap peal

. This Court “ will proceed to adjudicate this appeal as if [she] were alive ” and c ontinue to use he r nam e. See Tex. R . App . P. 7

. 1 (addressing impact on appeal wh e n party dies).2

probate court ’ s final judgment and remand the case to the probate court f or f u rther p ro ceedings

cons istent w ith thi s opinion.

BACKGROUND
Revocable Trust Agr eement and Nancy ’ s Powe r of Attorney

George E. Bogle (George) and Nancy T. Bog le (Nancy) we re married and had

t wo children, George Michael Bogle (Mike) and Katherine Leigh Bo gl e Leavitt (Katie) (collectively , the C h ildren)

.

On January 5, 19 9 9, George and Nancy signed a revocable trust agreement that

creat ed the “ George E. and Nancy T. Bogle Joint Revocable Trust Da ted January 5, 1999 ” (the 1999 Trust) . The primary asse t in th e trust was 1,500 shares in USA Managed Care Org anization (the Company)

. The 1,500 shares were 60 percent of the outstanding shares in the
Co mpany
. Under the terms of the trust agreement, t he trustee ’ s powers were “ exer cisable in the
discretion of the Tr us tee ” and includ ed the power “ in gene ral to d ea l otherwise with t rust
p roper ty in s uch manner . . . and on such terms and c onditions as any indi vidual might do as

out right owner of the propert y. ” The trust agreement na me d George and Nancy as the o rigin al

t rustees , and it designated George to ac t as th e sole trustee if Nancy became incap acitated

. If George was the first to die and Nancy was incap acitated , the tr ust agreement provided tha t the
Child ren would serve as successor co
- trustees. The tr us t agr ee me nt a lso provided that the trust ’ s income and p rinci pal w ere for the benefit of George a nd Nancy during their lifetimes , that George a nd Nancy “ toge ther reserve the right fr om tim e to time dur ing their joint li fetimes . . . to3

amend or revoke this i nst r um en t in whole or in pa rt, ” 2 that t he Children wer e the primary
beneficiaries to whom the trust assets would be distributed if they s ur vi ved George and Nancy ,

a nd t hat the trust agreement was to be interpreted and governed by Ariz ona law

.

On the s am e da y t hat George and Nancy signed t he revocable trust agreement that

cre ated the 1999 Trust (the 1999 Trust Agreement) , George and Nancy s igned dur ab le powers of attorney (POA ) “ under the laws of the State of Arizona

. ” Nancy ’ s POA appointed Ge orge to

ser ve as h er a gent, “ effective o n [her] incapacity , ” and if he was unable , unwilling , or unavailable to act as he r agent , she appointed Mike a s th e “ substitute or succ essor age nt to serv e with the same p owers and discretions

. ” The t we n ty

- three

- page POA also conta in ed t he following relevant provisions :

Artic le I

. Po wer Over Ass ets My agent is a uthorized in my Agent ’ s sole and absolute discretion from t ime to time and a t any time, as f ollows: . . .

. * * *
7

. Power to Exercise Rights in Securities

. My Agent is aut ho ri ze d to exercise all rights with respect t o securitie s which I now own or may hereafter acquire,

. . . .

* * *
14

. Power to Create, Fund, Amend, and Terminate Revocable Tr usts . M y a gent is au thor ized to execute a revocable t r ust agreement with such tru st ee o r trustees a s my Agent shall select, an d such trust shall provide that a ll income and principal shall be paid to me, to some person for my benefit or applied for my ben efit in su c h amou nts as I or m y Agent shall request or as the trustee or trustees sh al l determine, and that on my dea th any rem aining income and p rincipal shall be paid to my personal represen tative , and that the trust may be revoked or amended by me or m y Agent at any time an d from time to time; provided,

2 The 1999 Trust Agreement provided for the creation of a Survivor ’ s T rust after George o r Nan cy died and with respect to that trust, also granted the surviv ing spouse the ri ght “ to a men d or rev oke t h is in strument in whole or in part. ”4

ho wever, that any amendment by m y Ag ent must be such that by law or under t he p rovisi ons of t his Durable Power of Att orney such amendment could have been included in the original trust agreement ; . . . . 1 5

. P ower to Fund Tru sts Established b y the P rinci pal . My A gent is authori zed to tr a n sf

er fr om tim e t o time and at any time to the trustee or the trustees of a ny revocable trust agreemen t established by me before or after the execut ion of this Durable Power of Attorney , a s to which t rust I am, during my lifetime , a primary income and p ri nc ip al beneficiary, any and all my assets o r interests in property

... . 1 6

. Power to Withdraw Fun ds From Trusts

. My Agent is authorized

. . . to exercise, in who le or in part, release or let laps e any power of appointment held by me, whethe r general or spe ci al , or any power of a me ndment or revocation under any trust, including any trust with respect to which I may exercise any such power only with the consent of a nother person, even if my Agent is such other person, whether or not such power of appointment wa s cr eated by me, subj ec t however, to any re strictions on such exercise imposed on my Agent and set forth in other provisions of this Durable Power of Attorney including, but not limited to, the restrictions set forth in Article V.
* * * Article IV. Thir d Pa rt y Reliance
* * *
2. Age nt Has Po wer to Act A l one
. The powers conferred on my Ag ent by this Dur a ble Power of Attorn ey may be exer cised by my Agent alone , and my Agent ’ s signature or act und er t he authority granted in this Durable Power of Attorney ma y be a ccepted by any Person a s fully authoriz ed by me and with the same force and effect as i f I were personally present, competent, and acting on my own behalf.

. . . * * * Articl e V. Restricti ons on Agent ’s Powers
6. Avoid Disrupting Estate Plan

. If it b ec om es necessary for my Agent to liquidate my assets to provide support for me, or if liquidation or conversion of assets becomes nec essary for any other reason, whether specifie d in this Durab le Power of Attorney or otherwise, or such liquidation is dee me d by my Agent to be appropriat e or convenie nt, I direct that my Agent, to the extent reasonably poss ible, avoid disrupting the dispos itive provisions of any estate plan of mine k nown to my Agen t, whether or not such estate plan is embodied in a will, a t ru st , nonprobate property, or ot he rwise. If i t is necessary to disrupt the dispositive5

provisions of such plan, then my Agent is direc ted to use my Agent ’ s best efforts to restore the dispositiv e provisions of such plan as and when the opportunity to do s o is a vailable to my Agent. My Ag ent shall m ak e reasonable efforts to obtain and review my estate pla n and any person having knowledge thereof or possession of any documents imple menting such es tate plan is authorized to make disclosure thereof to my Agen t, a nd to furnish my Agent with co pies of suc h documents.

* * * Arti cle VII. Administrative Provisions
* * *
12. Governing Law

. This Durable P ower of Attorney shall be governed by the law s of th e State of Arizona in all respects, including its validity, c on st ru ction, interpretation and termin at ion.

. . .

* * * Article VIII. Declaration of the Principal
* * *
5. Di rection to Interpret Power of Attorne y Broadly

. It is my intention that the a uth o rization granted herein shall not be limited by any specific g ra nt o f power made in any other provision o f this Durable Power of Attorney, but that instead, these authorizati ons, limited only as described above, shall be given the broadest possible con str u ction permitted by law. I further understand and have had e xp la ined to me certain judicial rules of con s t ruction that would tend to require that the broad grants made in thi s Durable Power of Attorney be given a narrow construction or disregarded altog et h er. I declare that such rules should have no application to t hi s Du rable Power of Attorney. I further d e clare that any court of competent jurisdiction that shall interpret or construe the grants of authority m ade in this Durable Power of Attorney in any restrictive way shall do so in clear and complete violation of m y ex press intent and in utter disregard o f my wishes. I declare that I have been advised by counsel of the br eadth of the delegation I have made i n this Durable Power of Attorney and that I u nderstand it and desire it. I also understand that there is a lw ays the possibility of abuse of such a b r o ad delegation of power and I accept that risk.6 In 2011, George and Nancy amen ded the 1999 T rus t A greement to provide that after they both had died an d if th e C h ildren were a live , the Company shares being held i n th e
tr ust wou ld be di stribu ted 75% to Mike and 25 % t o Katie.

I n 2 020, George becam e the sole trustee of the r ev ocable trust because Nancy
beca me incapac itated , 3 and in Marc h 2021 , George signe d the “ Amended and Restated George E. Bogle and Nancy T. Bogl e Jo int R evocable Trust Agree ment ” (2021 Trust Agreement) in h is capacities as the trustee , one of the granto rs , a nd on behalf of Nancy as her age nt under the POA

. Th e 2021 T r ust A greement state d that it was the second amendment to the 1999 Trust Agreemen t an d “ a complete restatement of that doc ument, ” that it “ comp letely superseded and

re place [ d ] all of the terms and pro visions of [ the 1999 T rust A greement in cluding the 2011

amen dment ] ” ; and tha t it was subject to Texas law

. The d ocument appointed Ka ren Ba s s as t he

succes sor trustee ; and if Bass was u nable or un wil ling to serve, it appointed Mike an d Katie as the successor co
- trustees

. It also provided a different dis tr ibution of the Company sh ares after
the d eaths of Ge orge an d Nancy . T he Company share s th at we re held in the trust w er e t o be
distr ib ute d between six pers ons : “ 10% of t he 60% of the outstanding shares of [the Company] owned by t he Tr ust ” to Bass, Smith, Mike , Katie, and two ot her individ uals involved with the
C o mpany. The distribution to th e four non
- family members was b y l if e e state with their shares

to b e transferred to Geor ge ’ s nep hews when they died. The document also contain s a severabil ity clause:

3 N ancy was diagnosed with Alzheimer ’ s and “ r equir e [ d ] 24

- 7 medical care. ” In their appe ll ees ’ brief, Mi ke and K atie “ di sa gree with the assertion that Nancy was incapacitated when G eorge began un il at erally changing Nancy ’ s estate p lan in 2021 ” and explain t h at , although n ot the subject of this appeal, they chall enged t he validity of the 2021 Trust Ag ree ment and its am endments on the ground that “ George was incap acit at ed at the time the document s wer e executed. ”7

I f any wording, sentenc e, or article of the Trust is determined to be invalid, unenf or ce able, or irrelevant for any r eason whatsoe ver the remaining porti ons of the Tru st remain legally valid and enforceable. If a court determines that limiting any such wording in the Trust woul d enable it to become valid and enforceable then such wording i s deemed written, construed, an d en forced as so limited. [ 4 ]
George , in his capacities as the trustee, one of the grantors , and on behalf of Nancy as he r agent under her POA , also signe d : (i) in May 2021, a first amendment to the 2021
T rust Agreement, app oi nt ing S mith and Bass to serve as success o r co
- trustee s ; and (ii) in
Febr uary 2022, a se cond a men dment that removed Mik e from receiving Company shares held in
the trust on Nancy ’ s death

. George also signed a POA that appointed Katie as his agent in the

e ve nt he w as incap a citated. A fter George became incapacitated in May 2022 , Bass and Smith signed an accepta nce of appointment s a s successor co
- trustees of the t rust

.

In Octo ber 25, 2022, Mike s igned “ The Fifth Amendment and Resta t e me nt to the George E. B og le and Na ncy T. Bog le Joint Re v oca ble Trust Agreement Dated January 5, 1999 ” ( October 2022 Fifth Amendment and Restatement ) , signing the document on behalf of his parents as their age nt unde r their 1999 POAs

. The amendment revoke d the 2021 T rust
A greem en t and its first and second amendmen ts an d named Mike and Katie as c o
- tru stees of the

trust

. George died on Novembe r 26, 2022 , and i n December 2022, an attorney on behalf of Mi ke
notif ied Bass and Smith that they wer e removed as succe ssor co
- trustees pur s u an t to th e October 2022 Fifth Amendment and Restatement

.

4 In their a pp ellees ’ brief, Mike and Ka tie ad d ress other differences between t he 1999 Trust Agr eement and 2021 Trust Agr eement , such as changes in the trust ’ s stru cture resul ting from the first spo use ’ s death that “ subs tant ia lly underm ined s ignificant tax planning , ” but th ose di fferences do not i mpac t the dispositive question s in this appeal co nce rning the probate court ’ s orde r grantin g t he GAL ’ s motion for p artial summary judgment

. See Amedisys, Inc. v. Kingwood Home H ealth Care, LLC , 437 S .W.3d 507 , 511 (Tex. 2 014) ( “ [S] ummary judgme nts must stand o r fall on their own merits

. ” ( q uoting McConnell v. Southsi de Indep. Sch. Dist. , 858 S. W.2d 337, 343 (Te x. 1993 ))).8

Underlying Litigation

A t the en d of December 2 022 , Bass and S m ith , in their capacity as successor

co
- trustees on behalf of the “ Amend ed and R estated George E. Bogle and Nancy T. Bogle
Joint Revo ca bl e Trust, d a ted March 2, 2021 ” (the 2021 Trust) , su ed th e Children , seeking
de clarato ry a nd in

juncti ve relief and attorney ’ s fees

. See Tex. Civ. Prac. & Rem. Code § 37.009 (authorizing court to award reasonable and necessary attorney ’ s fees as are equi ta bl e and just ) ; Tex Prop . Code § 114.064 ( authorizin g court to awa rd reasonable and necessary attorney ’ s fees

“ as may seem equitable and just ” in proceeding under Texas Tru st Code )

. Because of the trust dispute , the Company ’ s ac c ounts h ad been froze n, an d Bass and Smi th were una b le to pay
expenses to admin ister the tr ust , such as paying for Nancy ’ s care . They sought a declaration that the operative trust w as the 2021 T rust with its first and se cond amend ments and that the 1999
Trust was void and inoperab le , an d they s o ught an in junction agai nst the C h ildren from ac ting as

trust ees
. They also alleged that Mike and Katie had violated Sec tion 114.008 of the Texas Property Code , see Tex . Prop. Code § 114.008 (lis ti ng rem edies for br each of trust ) ; sought
ref or mati on of Ge o rge ’ s 2022 POA to expressly revoke his 1999 POA , se e Tex . Est

. Code § 751. 251 (authorizing judicial relief when action requests court to con st rue or det ermine validity

or en f orceab ility of durable power of att orney) ; and sought reformation o f the o pera tiv e trust to
th e extent that beneficial provisions were inadvertently omitted, see Tex . Prop. Code § 112.054 (au t hor izing reformation of trust) ; see a lso A riz

. R ev
. S tat

. § 14

- 10415 ( a uthorizin g court to
reform terms of trust to correct mis takes )

.

Mike and K a t ie counterclaimed, seeking declarati on s that : (i) the 2021 Trust Agreement and its amendmen ts be set aside , (ii) they were the succe ssor co
- tr ust ees and that th e October 2022 Fifth Amendm ent and Restatement that Mike signed on beh alf of his parents was9

v alid and enforceable or, a lternatively, the 1999 T rust A greement was valid and enforceable; and (iii) the May 2022 acceptance of trusteeship b y Bass and Smith was invalid . They also sought to
have Bass and Smith r emoved as the successor co
- t r ustees , asse r ted breac h of fiduciary claims against Bass and Smith , and sought injunctive relief and the recover y of attorney ’ s fees

.

In February 2023, t he probate cou rt a ppointed the GAL to act in the best interest
of Nancy , and i n M arch 2 023, the G AL fi led a mo tion f or p ar tial summary ju dgment seeking for
the proba te co urt to find as a matter of law that, other th an the 2011 amendment that was sign ed by b oth Ge orge a nd Nancy , the p urported amendments t o the 1999 Trust were void and inv alid

. 5
The GAL ass erted th at Na n cy ’ s estate plan was to le ave her re siduary esta te to the Children and
to have them named as th e successor co
- trust ees an d that George ’ s purported use of Nancy ’ s POA to amend the trust agre ement “ to drastically change her e s tate plan ” and lat er Mike ’ s
pur p or te d use of her POA to amend the trust to ch ange her estate plan were void a nd invalid.
The GAL argue d that Nancy ’ s POA did not permit amendment s of existing trusts , and that even if it d id, pursuant to Ar t icl e V, Section 6 of the POA , it d id not p ermit su bs tantive amendments

t o the 1999 Trust that would di srupt her e state plan

. He also argued th at the challenged
amendments conf

licted with the POA ’ s p rovision that the trust property be pa id to Nancy ’ s personal representative on he r death. See Tex. Est. C ode § 22.0 3 1 (defining “ personal representative ” ). The GAL ’ s summary
- judgment evidence was the 1999 T rust A greement, the
1999 POA s , the 2011 amendme nt to the 19 99 T rust A gree ment , the 202 1 T rust A greement and
its first and seco nd amendments , and th e Oct o ber 2022 Fifth Amendment and Restatement

.

5 Mike also filed a motion fo r partial summary judgment, b ut the probate c ourt d id not rule on his motion.10 In Apr il 20 23, t he Co mpany a n d non
- family in di vid uals who were des ign ated in the 2022 Trust Agreement to receive Company shares on Nancy ’ s death i n terv ened in the suit , and Bass and Smith filed a re sp on se to t he G A L ’ s motion for partial summary judgment

. 6 They
contended tha t the expr ess terms of the POA allo wed t he amendment of the 1999 Trust , that
there w ere ge nu ine issues of mate rial fact tha t pre cl ude d su mmar y judgment , and that t he GAL
had failed to estab lish f

or p urposes of summary judgment that the 2021 Trust Agree men t and its

a men dments were invalid as a matter of Arizona law

. Bass and Smith relied on the agent ’ s
power s in Article I , Section s 7, 14 , 15 , and 1 6 and Article VIII, Section 5 of Nan cy ’ s POA and

c ited Arizona law. See A riz

. R ev
. S tat

. § 14

- 1 0602(e) ( “ A set tlo r ’ s powers wit h r espect to revocation, amendment or d istribut ion of trust property may be exercised by an agent under a power of attorn ey only to the extent expressly authorized by the terms o f th e trust or , if the terms
of the trust do not prohibi t an age nt from exe rci sin g powers on behalf of the settlor, t o the ex tent

e xpressly authorized under the power of attorney

. ” ).

As to Article V, Sect ion 6 of the POA , Bass a nd Smi th con ten ded that it d id not apply because it s applicability w as limited to the s it u ation where th e a gent was liquidating assets
and the 202 1 T rust A greement and its amend ments that George signed did not li quidat e asset s
. They further argued that even if that s ection applied , th ere w as a fact question a s to whe ther it

was “ r eason abl y possibl e ” for G eorge to avoid changing th e disposition of t he C ompany shares
be ing held in the trust to preserve the cor pus of th e trust i ncome for Nancy ’ s benefit

. Citing
Mike ’ s a llegedl y detrim e nt al ac tions impacting the viability of the Compa ny, t hey argue d t hat

“ Ge o rge had to change the disp osition of the Trust ’ s st oc k so that Mike would not have ma jority

6 The ir response a lso address e d Mike ’ s motion for partial summ ar y judgment

. However, the probate co urt di d not rule on tha t motion , and it is not at issue in this appeal.11

control ” and that it was “ neces sary to protect the Company and its a bility to generate fu t ur e inc ome
. ” And they argued that George ’ s amend ments to ap point Smi th an d Ba ss as successor

co
- trustees did not a l ter Nancy ’ s esta te plan

.

Bass and Smi th ’ s re sponse also incorporated the inter v enors ’ response to the
GAL ’ s motion for par tial summary judg m e nt

. In their re sponse, the in terv en ors cited Article
VII I, Section 5 in Nancy ’ s POA directing that powers o f the agent shou ld be in terpreted broadly
and the overall st ructure and titles of the POA to argue that it expressly authorized G eorge to
amend th e 1999 T rust eve n if it was already existing when Nanc y si gned the POA

. In Article I , Se ction 14 of Nancy ’ s POA , her agent “ is aut horized in [his] s ole dis cret ion from time to time and at any time , as follows:

. . . Create, Fund, Amend an d Ter mina te Re vo c ab le Trusts

. ” The
i nte rv enors also relied on the langu age in Section 14 that the “ trust may be revoked or amended by me or m y Agent at any tim e and fr om time to time ” and t hat her agent was “ auth o rized to

execute a revo c able trust a greeme nt wi th such tru s te e or trustees as my Age nt shall sel ect

. ” They
furthe r relied on Article I, Sect ion 7 that aut h orize s her agent to exer cise r ights in secur ities.
An d they argued that even if George was aut horized only to create a new trust, the GAL can not

e sta blish as a matter of law that the 2021 Tru st is not a new trust because the 2021 Trust Agr e ement states that it compl e te ly supersede s and rep lace s the terms and provisi ons of the 1999
T rust A greeme nt and it s 2011 amendment

.

Following a hearing on t he GAL ’ s mot ion f or p artial summar y jud gme nt , the
p art ies also filed briefs addressing c hoice of law issues. The GAL recogniz ed that the
1999 POAs and the 1999 T rust A g reement w ere governed by Ar izona law but a lso cited the
2021 Trust Agreement ’ s provisio n that Texas law ap pl ie d to it

. Although the GAL r epresented
that Arizona did not have a similar statute or such a requirement under its common law , he also12

cited Texas Estates Code section 751.1 22 , which addresse s an age n t ’ s duty to preserve its
p rincipa l ’ s es tate plan , an d argued that that section may apply

. See Tex. E st. Code § 751 .122

. Concerning the appli cable Arizona l aw, the GAL c ited:

(i ) A riz

. R ev
. S tat

. § 14

- 10602( B) (1) : “ To the extent the trust consists of comm unity propert y, the trust may be revoked by eith e r spo use act in g alone as to that spouse ’ s share of the community p roperty but ma y be amended only by j oint action of both spouses. ” (ii ) A riz

. R ev
. S tat

. § 14

- 10602 (E) : “ A settlor ’ s powers with respect to revocation, amendment or di stribut ion of trust pro p erty may be exerc ised by an agent under a power of attorney only to the extent expressly au t horized by the terms of the trust or, if the terms of t he trust do not prohibit a n agent from exercising powers on behal f of the settlor, to the ex tent expressly a u thorized under th e pow er of attorney. ”
In their response to the GAL ’ s br ief, B ass and S mi th relied on the GAL ’ s
uncerta in t y as to which state la w applied and argued that “ the applica tion of Texas law or Arizo na law de pe nds on unresolved fa ct ques t ions ” an d that Section 751 .122 of the Texas
Estates C ode d id not appl y to Nancy ’ s POA because it ex p licitly st ates that it is governed by
A rizona law. In their resp ons e to the GA L ’ s b rief, the intervenors argue d that the GA L did not

meet h is sum ma ry
-

j udgment burd e n under Ari zona law an d that even if Section 751 .122 of the
T exas Estates C ode applie d , he misstated it by le avi ng out its re q uired factual anal ysis , whic h makes it clear that summary judgment would not be approp riate

. See Tex. Est. Cod e § 751.122 (stati n g that agent shall pr e se rve “ to the exten t reas onably possibl e the p rincipal ’ s estate pla n ” if
he has actual know led ge of plan and preserving plan is “ consist ent with the principal ’ s best
interest based on all relevan t fact ors, including [ li sting four fac t ors] ” )

.

The probate co ur t ’ s order grantin g GAL ’ s mo tion for p artial summary judgment
orde rs t hat the following “ p urp orted amendment s ” to the 1999 Trust Agree m ent were “ void and13

invalid as a matter of law ” : (i) t he 202 1 Trust Agree ment and it s first an d s e cond am endments, and (i i) the October 2022 Fifth Amendment and Restatement

. On the same d ay th at the p robate court signed the order gran ting partial summary judgment, t he probate court also signed an order granting Mi ke ’ s petition to strik e the plea in i n tervention and order ed th at the purported
intervenors ’ claims and ca uses of action were dism iss ed

.

Mike , Katie, and the G A L filed a motion for entry of final judgment

. They argued t h at the probate court ’ s summary
- ju dgment ruling d irectly or indirectly re s o lved all

c la ims in t he lawsuit beca use the 1 999 T rust as am e nded in 2011 is the co nt rol li ng trust ; the
claims of Bass and Smith w ere predicated on the validity of the subsequent amendm ents to the

trust that the p rob ate court had found to be void ; and tha t Bass, Sm ith , and the i ntervenors have
no inter est in t he co n trolling trust

. Mike an d K at ie also w aived their claim for attorney ’ s fees if the motion was gr anted

.

Bass and Smi th fi led a response to the motion for en try of judgment , argu i ng that
the order could not be made f in al without disposi tion of remaining cla ims and issues pe nding
before th e probate court , incl udi ng their claim for attorney ’ s fees , whi ch was not addressed in the
GAL ’ s motio n for partia l summary judgment

. See Youngbl ood & Assocs., P. L .L.C. v. Duhon , 57 S. W. 3d 63, 65 (Tex. Ap p.

— Houston [14th Di st.] 2001, no pet.) ( stating t hat summary judgment was not final judgment because claims for attorneys’ fe es remained pending ); Palacio for Esta te of Palaci o v. Palacio , No. 05

- 1 8

- 00357

- CV, 2019 T ex. App. LEXIS 3305 , at * 2 (Tex. App.

— Dal las Apr. 24, 2019, n o pet.) (mem. op.) (same)

. T hey also argued that the probate court could no t imply a decision on other claims even if its summary
- judgment ruling impl ica t ed a decision on those clai ms. See Bil l De La Garza & Assocs ., P.C. v. Dean & Ong ert ,14

851 S.W.2d 37 1, 372

– 73 (Tex. App.

— Houston [ 1st Dist.] 1993, no writ) ( deny ing request to grant fi nal summa ry judgment because movants had only requested partial summary judgme nt)

.

In its fina l judgment, the p r o bate court determine d that its summary

- judgme nt
order “ moot s all oth er claims and causes of action asserted herein by or again st any part y ” ; th at
Mike a nd Katie “ have nonsuited without prejudice all of their remaini ng cla ims for relief n ot

e xpressly gran t ed herein ” ; and that Ba ss and Smith were not enti tled to att orneys ’ f ees in
connection wi t h any claim for declaratory relief. The probate c our t ordered that Bass an d Smi th

“ take nothing on each and all of their clai ms an d causes of actio n, including Plai n tiffs ’ claims seeking d eclaratory relief, statutory remedies , equita ble remedies, injuncti ve relief,
and attorney ’ s fees , ” an d or dered that t he GAL ’ s request for declaratory re lief wa s granted, declaring that :
( 1) th e purporte d Tr ust amen dments executed o n March 2, 2021, June 7 , 2021, February 11, 2022 [the 2022 Trust Agreement and its amendments] , and on October 25, 202 2 [the October 2022 Fifth Amendment and Restatement ] are void and invalid ; (2) the Trust is govern ed by the original Tru st agr eement date d J anuary 5, 1999 as a mended on November 14, 2011; (3) the Plaintiffs ’ M ay 2 022 Acceptance of Trusteeship is invalid becau se the amendments appointing the Plainti ffs as s uccessor co
- trustees a re invalid; and (4) G. Mi chael Bogle and Kather ine Le igh Bogle L e av itt are the success or co
- trustees of the Trust.

The probate court als o approved and or dered that the GAL ’ s fees and expens es and the fees

a nd expenses of a cou rt

- appointed receiver be paid from funds belonging to t he t rust

. 7 T hi s
appea l follow ed.

7 The probate court appointed a recei ver around t he t im e tha t it rule d on the GAL ’ s m otion for partial summary jud g ment , terminated the re ceivership after si gning the final judgment , a n d the n withdr e w the t ermination of the r eceiv ership and continued it throu gh final resolution of the appeal

. In a sep arate but related a ppeal, this Court ’ s cause number 03

- 23

- 00 4 91

- CV , Mike c hallenges the probate court ’ s ord er w ithdraw ing t he15 A NALY S IS
Unchalle nged Port ions of Final Ju dgme nt

As a pre limi nary matter, we address the portio ns of the final judgment that a re not

c hallenged on appeal

. Sp ecifi cally , no party has cha ll enged the court

- ord ered fees a nd expenses

to the GAL and the receiver or t h e probate cou rt ’ s declaration that the October 2022 Fifth
Amendment and Restatement was void and in valid. Bec ause they are unchallenged on appeal,
we affi r m those portions of the final judgm ent

. See $214 .00 Un ited States Currency v . State , No. 02

- 14

- 00 2 26

- C V, 2015 Tex. App. LEXIS 3290, at * 19 (Tex. App.

— Fort Worth Apr. 2, 20 15 , no pet.) (mem. op.) (affirming portion of j ud gment for fei ting ve hicle be cause it

was un challenge d on appeal ); Mo rr ell Masonry Supply , I nc. v. Bric kland Homes , Inc. , No. 14

- 12

- 006 8 4

- CV , 2013 Tex. A pp . LEXIS 13516, at *9

– 10 (Tex. App.

— Houston [14 th Dist.] Oct. 31, 201 3, no p et.) (mem. op.) (a ffirming p ortions of summary judgment that were

un challenge d on appeal )

.

C hal lenged Portions of F inal Judgment

Turning to the challenged port i ons of the f i nal judgment, i n th eir first of two
issue s , Bass and S m ith challenge the portion of the final ju d gment in corporating the p rob ate

court ’ s order g ranting partial summary j udg men t that as a matter o f law, the 2021 Trust Ag reement and its amendme n t s w ere void and invalid in their entirety

.

terminatio n of th e receiv ership and continuing it t h r ough final resolution of the appeal

. By opi nion issued t his same d a te, we af firm t he pro bate court ’ s order in that case.16

Stand ard of Rev iew We review the gra nt of summar y j ud gm ent de novo. Wal

- Mart Sto res, Inc. v.
Xe rox State & Local S ols., Inc. , 66 3 S.W. 3d 569, 576 (Tex. 2023) ; see In re Estate of Ku yamjian , No. 03

- 18

- 002 57

- CV , 2018 Tex . App. LEXIS 6182, at * 5 (Tex. App.

— Au stin Aug. 8, 2018, pe t.
den ied) ( mem. op.) (st ating that denial or grant of declaratory judgme nt requested th rough

tr aditional motion f

or summary ju dgment is reviewe d under traditio nal summa ry
- judgment
standa r ds (citin g Tex. Civ. Prac. & Rem. Code § 37.010) )

. “ A party moving for tra ditional summary judgment must prove th at no genuine issue o f material fact exists and it is entitled to j ud gme nt as a matt er o f law. ” Wal

- Mart Sto res , 66 3 S.W.3d at 576 ; see Tex. R. Civ. P . 166a(c) ;

see a lso Zive v. Sandberg , 644 S.W. 3d 169, 173 (Tex. 2022) (addressing standard of review
when defen dan t moves for traditional summary judgment)

. “ A ge n uine issue of mat erial fact
exists if th e e videnc e ‘ ris es to a level that would en a ble r easonable and fair

- minded people

to dif fer in the ir con clusions. ’ ” First United Pentecostal Church of Beaumo nt v. Par k er , 514 S.W.3d 214, 220 (Tex. 2017) (quoting Merr ell Dow Pharms., Inc. v. Hav ner , 953 S.W .2d 70 6 , 711 (T ex. 1997))

.

T he reviewing c o urt mus t take as true all evidenc e favora ble to the nonmovant

an d indulge every reasonable inference in the nonmovant ’ s fa vor. JLB B uil der s, L .L .C

.

v. Hernandez , 622 S.W.3 d 860, 864 (Tex. 2021) ; see Zi ve , 644 S. W.3d a t 173 (st ating t hat when reviewing su m mary ju dgment, co urts view e vidence in li ght most favorable to n on
- movant ,

“ crediting evidence favorable to the non

- movant if reasona ble ju rors c ould, and disregarding

cont rary evidence unl ess reasonabl e j urors c ould not ” )

. If the mov ant init ially establ i shes a r i ght

to s ummary judgment on the is sues expressly presen t ed in the motion, then the burden sh ifts to17

the nonmovant to pr esent to the tria l court any issues or eviden ce that would pre clude summary jud g ment. City of Houst on v . Clear Creek Basin Auth

. , 58 9 S.W.2d 671, 678

– 79 (Tex. 1979).

Bass and Smith ’ s issue s also turn on the interpre tation of documents , including
Nanc y ’ s POA and the 1999 Trust Agre e ment , which stat e that they are gov er ned by Ari zona law

. In our anal ysis , unless the par tie s iden tif y a material confl ict be tween Arizona an d Texas law concerning th e interpretation of th ese d oc uments , we presume that the a pplicable rules of

cons truction a re th e sam e u nder A rizona and Texa s law and apply Texas l aw
. 8 See Vince
Posce nte Int ’ l

, Inc . v . Com

p ass Bank , 460 S.W

. 3d 211, 219 (Tex

. App.

— Dallas 2015, no pet) ( explaining when court may take jud icial notice of applica ble or conflicting provision of an other

st ate ’ s law a nd when court may presume an other state ’ s law is same as Te xas law ) ; see a lso Tex

. R. Evid. 202 ( setti ng forth procedure s for court to take judicial notice of an other state ’ s la w )

.

Under Texas l aw, “ [w] hen we interpret a power of attorney, we construe the
document as a wh ole in order to ascerta in the parties ’ intentions and rights. ” In re E sta te of
Mill er , 446 S.W.3d 445, 455 (Tex. App.

— Tyler 2014, no pet.) (citing First Nat ’ l Bank in D all as

v. Kinabrew , 5 89 S.W.2d 137, 145 (Tex. App.

— Tyler 1979 , wri t ref ’ d n.r.e.) )

. “ Under these
rules of cons truction, powe rs of attorney, unlike deeds a nd wills, are to be strictly construed, and authority delegated is limited to the meaning of the terms in which it is expressed. ” Id. (citing
Avis v. First Nat ’ l Bank of Wichita Falls , 174 S.W.2d 255, 259 (Tex. 1943) )

. “ And where there
is a ‘ very compreh ensive ’ grant of general power a nd an enumeration of specific powers, the
established rules of construction limit the authority derive d from the general grant of power to

8 In their appellees ’ brief , Mike and Katie cite the provision in Nancy ’ s POA stating that Arizona law g over ns but argue that “ [ m]a n y of the significant actions took place in T exas ” and

“ conceivably Texas law might be applicable in s ome re spects ” but that “ the outcome is the s a me ” whether Texas law or Arizona law applies

.18

the acts auth orized by the lan guage emplo yed in grantin g the special powers. ” Id. (c iting Gouldy
v. M etcalf , 12 S.W. 83 0 , 831 (Tex. 1889 ))

.

“ We interpret trust instruments the same way as we interpret wills, contracts , and other legal documents , ” foc using on the g ran tor ’ s intent. In re Ignaci o G. & Myra A. Gonza les Revocable Living Tr

. , 580 S.W.3d 322, 327 (Tex. App.

— Texarkana 2019, pet. denied )

. W e

“ interpret a trust to g ive meaning to all of its provisions and to enact the intent of the grantor , ”

“ ascertain a tr ust grantor ’ s intent fr om the language cont ained in the trust ’ s four co rner s [,] and
fo cus on the meaning of the words actually used , not what the gr antor intended to write

. ” In re
Est ate o f Kuyamjian , 2018 Tex. App. LEX IS 6182 , at * 6 ; see In re Ign acio G. & Myra A. Gonzales Revocable Living Tr

. , 5 80 S.W.3d at 32 8 ( stating rule s for int erp retin g trust
document s )

. “ The mea ning of a trust instrument is a question of law when there is no amb iguity
as to its terms , ” but “ wh en the trust instrument ’ s language is uncertain or reasonably susc eptible

to mor e than one me aning , ” it is ambig uous , and “ its interpretation presents a fac t is sue precluding summary judgmen t. ” In re Ignacio G. & Myra A. Go nzales Revocable Living Tr

. , 580 S.W.3d at 328 (citin g Lee v. Rog ers Agency , 517 S.W.3d 137, 14 5 ( Tex. App.

— Texa rkana 2016, pet. denied) ) ; see a lso Piranha Par tners v. Neuhoff , 596 S.W.3d 740, 743

– 44 (Tex. 2020) ( d escribi ng wh en agreement is ambiguous an d explaining that with any deed or co ntract, cou r t ’ s

“ t ask is to de termine and enforce the parties ’ intent as expr essed within th e four co rners of

t he written a g reement ” and that courts “ consider the entire agreement and , to the extent possible, re solve an y conflicts by harmonizing the agreement ’ s pr ovisions ” ) ; Coker v. C oker , 650 S. W.2d 391 , 393 (Tex. 1 983) ( desc ribi ng rules for const ruing written contract and19

ex plaining that if words of contract can be given certain or definite legal mean ing o r interpreta tion, it is unambiguous and court construe s it as matter of la w)

. 9

Did Nancy ’ s POA a utho rize Georg e to amend the 1999 Trust ?
We begin with the thr eshold que stion of whe ther Nancy ’ s POA authorized George as her age nt to amend the 1999 Trust in any resp ect

. Bass and Smi th argue that the
pro bate court erred in gra nting summary judgm ent as to the 2021 Trust Agreemen t and its
amendments because the GA L failed to conclusively e stablish th at under Arizo na law , George
did not have authori ty to sign the ins t ru ments as Nancy ’ s agent pursuant to her P O A

.

In his moti on for par tial summary judgment, t he GAL ar gued that the POA did
not authorize Ge orge to amend a n existi ng re voca ble trust but auth orized “ the creation of a new

trust , ” focus ing on langu age in Artic l e I, S ection 14 that he r age nt “ is author ized to exe cute a

revoc a b le trust agreement with su ch t rust ee or trustee s as my Agent shall s elect. ” Because th e 1999 T rust was already exis ting, th e GAL argue d that Ge orge was not au th orized to amend it

. The GAL also argued that the purpo rted amendments to the 1999 Trust were i nva lid and void
bec ause the POA di d not permit s ubstantive amendments of the trust, “ es pecially i f those
amend ments disrupted [ Nancy ’ s] es tate plan. ” As support, the GAL cites Arizona statutory
pro v isions. See A riz

. R ev
. S tat

. § 14

- 10602(B) , (E)

.

9 S ee, e.g. , A riz

. R ev
. S tat

. § § 14

- 5501 (ad dressing c reation and v a lid ity of durab le power of attorney), 14

- 10112 (statin g that rules of c ons tru ct ion t hat apply in Arizona to int erpretation of and dispositio n of property by will also apply as appropriate to terms of trust); In re Estate of Pouser , 975 P.2d 704, 708

– 09 (Ar iz. 1999) (address ing rules for interpr e ting wills unde r Arizona law, inclu di ng that courts consider text of will as whole a nd, “when approp r iate, the circumstances at the time it was executed” and that extrinsic evidence is not a dmissible to contradict wil l’s plain langu age ) ; see a lso Focus Point Props., LLC v. Johnson , 33 0 P.3d 3 60, 367 (Ariz. Ct. App. 2014) (h olding that whe n contract is no t ambiguous , court construe s it as matter of law but when it is ambiguous, “ determining wh at the parties intended is a question of fact ” )

.20 The GAL ’ s evidence to su pport his motion f or partial su mmary judgm ent were the documents thems e lves. W e first determine whether Nancy ’ s POA and the 1999 Trust
estab lish as a matter of la w that Ge orge was not authorize d to make any am endments to the 1999
Trust on Nancy ’ s behalf

. See In re Esta te of Miller , 44 6 S.W.3d at 45 5 ( construing power of

at torney as wh ole); see als o Su ndown Energy LP v. HJSA No . 3, Ltd. P ’ ship , 622 S.W.3d 884, 888 (Tex. 20 21 ) (explaining that co urt s cons true w ords in cont ex t in which they a re used and avoid construing con tracts in way t hat renders co ntract language meaningle ss) ; In re Estate of Kuyamjian , 201 8 Te x. App. LEXIS 6182, at * 6 ( ascertaining trust grantor ’ s intent from language
contained in trus t ’ s fou r cor ners, focusi ng on meaning o f words act ually used , “ not what the
gr antor inte n ded to wr ite ” )

.

Looking to the ove rall s tr uctur e of the POA and the p ow ers grant ed to her a ge nt
in its Article I , Nancy authorize d her agent in the agent ’ s “ sole and absolute discretion from time
to tim e and a t any time , as follows: ” the “ Pow er to C reate, F und, A men d , a nd T erminate
R ev o c ab l e T rusts , ” and in cont rast to the general rules for constru ing a POA , N ancy ’ s POA

cont ain s a directi ve that her agent ’s powers be in terpreted “ broadly. ” This provisio n expressly provide s that “ the au th ori zat ion gr anted herein s hall n ot be limited by any specific gran t of power made in any o ther provision of this Dura ble [POA], but that inst ead , these authorizations, limited only as described above, shall be given the b roadest possible con struction permitte d by
law ” and that rule s requiring a narrow const r uction “ have no appl ication ” to her POA

. In Article I, S ection 16, Nancy also authorized her agent “ t o exercise, in whole or in pa rt,

. . . an y pow er of
amendment or r evocation un der any trust , including any t rust with re spect t o which I may
exercise any such power only with the consent of another person, e ven if my A gent is such other
person
. ” Co n sidering t hese provisions in the co n text of Nancy ’ s POA as a whole , they make21

cle ar that the POA authorized George to a mend the 1999 Trust on Nancy ’ s behalf

. T he GAL did not argue, and the probate court did not conclude , th at any provision in Nancy ’ s POA was voi d
or invalid.
We a lso observ e that the 1999 Trust Agr ee men t , w hic h George and Nancy signed on the same day as th eir POAs, expl icit ly provides that George a nd Nancy “ together reser ve the right from time to time during their jo int l ifetimes . . . to amend or revoke this instru ment in
wh o le or in part ” a nd that the trustee ’ s powers included the power “ in general to d ea l otherwise
wit h trust prop erty in such m anner . . . and on such terms and conditions as any individual mi ght do as outright owner o f the property. 10 See In re Ignacio G. & Myra A. Gonzales Revocable Living Tr

. , 580 S.W.3d at 328 ( explaining that in interp ret ing trust docume nts, courts may
consid er “ surrounding circumstan ces ” to determine “ appropriate me anin g to ascribe to the lang uage chosen by the p art ies ” (quoting Lee , 517 S.W.3d at 14 5 )). And a s to the Ar i z ona
statu tory provisi ons that the GAL cited to the pr obate court, even if these provisi ons conflicted with Texas law, neither provision generally pro hibits a POA from authorizing an age nt to act on the person ’ s b eha l f to amend or revok e a trust

. See A riz

. R ev
. S tat

. § 14

- 10602 (B) (1) ( requiring

am e nd m ent of revocable trust “ by joint action o f both spouses ” when community property is being held in trust but not addressing p ower of attorney to do so ), (E) ( ad dressing “ powers with respect to revocation, amendment, or di st ribution of trust property ” and pe rmit t ing exercise of
powers through POA i f authorized und er POA )

.

Considering Nancy ’ s intent as expressed in the language of the POA , we concl ude
that th e GA L failed to establish as a matter of law that the POA did not grant Ge orge power to

10 See , e.g. , A riz

. R ev. S tat

. § 14

- 10602 (A) ( a uthorizi ng se ttl or to re vo ke or am e nd revoc able tru s t subject to “ any l imitations prescribed in the terms of the trust ” )

.22

amend the 199 9 Trust Agreement on Nancy ’ s behalf

. This conclusion , ho wever, does not
resolve this appeal because even if George generall y ha d the authori ty to amend the 19 99 Trust Agreement on Nancy ’ s behalf , t he GAL also challenged George ’ s authority to amend the
agr eement in the manner that he did

— sp ecifical ly whether he was authorized t o amend the
dis tribut ion of trust assets on the de ath of Nancy and to r eplac e the nam ed successor co

- trustees.
We ad dress each in turn.

D id Nan cy ’ s POA authorize George to amend th e d istribution of t rust a ssets ?
The G AL argue d th at N an cy ’ s POA did not authorize George to change the
dis trib ution of the trust assets on Nancy ’ s death , rel ying on Article I, S ecti o n 14 , the provision
autho rizing Geor ge to amend trusts

. In this provisio n , Nancy authorized her agent to amend a

revoc able trust but expressly limited th is authority by stating that “ on my death any remaining income and principal shal l be paid to my persona l rep resentative. ” See Tex. Est. Code § 22.0 3 1 (a)(1) (defining “ person al representative ” as including ex ecu tor or in dependent

execu t or )

. Under the terms of the 1999 Trust Agreement, the re main ing trust property was to be
dis tri buted to the C h ildren , consistent w ith Nancy ’ s estate plan

. In dir ect conflict with th is term , th e 2 021 Trust Agreement and its second amendmen t provide d that on the death of Nancy, the Company shares held by the trust would be distributed to persons othe r th an the C hildren

. Based
on the explicit limiting lan guage in Ar ticle I, Section 14, we c onclud e that b y changing t he
distrib ut ion of Company shares o n Nanc y ’ s d eath in the 2021 Trust Agreement and its
amendments , Geor ge ex ceeded his authority un der the POA as a matter of law

. See Piranha
Partners , 596 S.W.3d at 743

– 4 4 ; Coker , 650 S. W.2d at 393

. T hus, we conc l ude that the probate
court did no t err in part by granting summary judgment and declaring that the 2021 Trust23

Agreement and its a mendments were v oid and in valid to the extent that they amended
the distrib ution of the trust prope rty o n Nancy ’ s death to persons other than her personal repre sentative

.

D id Nancy ’ s POA authorize George to amend th e Successor Co

- Trustees ?
We reach a d ifferent conclus ion concerning Ge orge ’ s authority under Nancy ’ s POA to rep la ce Mike as the successor trustee under the 1999 Tru st Agreement with Bass and
Smith as t he successor co
- trustee s u nder th e 202 1 Trust Agreement and its amen dm ents . In Article I, S ection 14 of the POA , Nancy explicitly authorized her agent “ to execute a revo c able trust agreement with such trus tee or tr ustees a s my Agent shall se l ect

. ” B ased on this provision ’ s plain language , we conclude that Nancy authorize d Ge orge to a mend the 19 99 Trust to appo int
d ifferent trustees

.

The GAL ’ s summary
-

judgment motion challenge d George ’ s authori t y t o select
Bass and Smith as the successor co
- trust ees based on Article V, S ec tion 6 in the POA , the provision directing her agen t to “ a void disruptin g ” her estate plan

. But that provision specifically addresses the situation whe n it h as become necessary for her a ge nt to liquidate
her assets:

If it becomes necessar y for my Agent to liquidate my assets to provide support for me, or if liquidation or conv er sio n of assets b ecomes necessary for any other reason, whether specified in this Du rable Power of Attorney or othe rwise, or such liquidation is deemed by my Agent t o be appropriate or convenient, . . .

.

In several other provisions of the POA

— the provisions addressing her a gent’s powers to demand
and receive certain assets , as to employmen t benefits, to withdraw funds from trusts, and to make gifts to Nancy ’ s “descen dants and their spouses ”

— Nancy also included a similar directive to he r24

agent conc ernin g the d isrup t ion of her estate plan

. In cont rast to those provisions, Article I,
Section 14

— the provision authorizing her agent to select trustees in the context of ame nd ing

revo c able trusts

— does not include simi lar language concerning th e disruption of her esta te plan

. Had Na ncy in tended a similar rest riction in Article I, Section 14, she co uld have said so. See
Su ndow n Energy LP , 622 S.W.3d at 888 ; In re Esta te of Mi ller , 446 S.W.3d at 455

.

We also observe that even when it becomes ne cessary for Nancy ’ s agen t to liquidate a ssets, Article V, S ec tion 6 is not a b l anket prohibition but contemp lat e s th at it might be

neces sary for her estate plan to be disru pted :

. . . I d irect that my Agent, to the extent reasonably possible, avoid disrupti ng the dispositive provi sions of any es tate plan of mine kno wn to my Agent,

. . . . If it is necessary to disrupt the dispositive prov isions of such plan, then my Agent is directed to u se my Agent’s best efforts to restore t he di spositive provisions of su ch plan as and when the opportunity to do so i s available to my Agent.
See Sundown Energy LP , 622 S.W.3d at 888

. It follows that , ev en if this provision applied and naming successor co

- trustees dis rupted Nancy ’ s estate plan , whether it was “reasonably
pos sible” for George to nam e different s uc ces sor co
- trustees without disrupting Nancy’s estate plan is a fact question. See, e.g. , Freepo rt

- McMoRa n Oil & Gas LLC v. 1776 Energy Partners,
L LC , 67 2 S.W.3d 391, 399 (Tex. 2023) (describing “reasonableness” as en tailing “objective inqui ry” and stati ng th at “questions of reasonableness must be submitted to a factfinder when a genuine disagreement about th e facts prevents the law from generating a n objective answer”) ;

s ee also Tex. R. Civ. P. 166a (c) (requiring mova nt t o e stablish that it is ent itled to judg me nt as matter of law). 11 And the 2021 Trust Agreement co ntains a s eve rability clause , such tha t “ [ i ] f

11 See , e .g. , In re Estate of Jung , 109 P.3d 97, 1 02 (Ariz. Ct. App. 2005) (“ Issues of reasonableness are generally questions of fact.”)

.25

any wording, sentence , or article of the Trust is determined to be invalid [or ] unenf orcea ble , ”

“ the remaining p orti on s o f the Trust remain legally va lid a nd e nforceable. ”

Concl usions as to Probate Court ’ s S ummary J udgmen t Ruling
Based on the above analysis of the relevant provisions of Nancy ’ s POA and the trust agreements , we conclude that the probate court erred to t he extent th at it granted summary ju d gment and declared that the appointment s of Bass and Sm ith as succes sor co
- trustees in the
2021 Trust Agreement and its amendments were void and invalid. Further, b ased on our
conclusion a b ove that Nancy ’ s POA generally authorized George to amend the 199 9 Trust Agreement, w e also conclude that , except as to the provisions in the 2021 Trust Agr e e me nt and
its amen d ments that amended the distributio n of tru st as sets on Nancy ’ s death , the GAL did not

esta blish as a ma tter of law that t he remaining portions of the 2021 Trust Agreement and its
amendments exceeded George ’ s author ity under Nancy ’ s POA

. See Amedisys, Inc. v. Kingwood Home Health Care, LLC , 437 S.W.3d 507 , 511 (Tex. 2 014) ( “ [S] ummary judgme nts must stand
or fall on their own merits

. ” ( q uoting McCon n ell v. Southsi de Indep. Sch. Dist. , 858 S.W.2d 337, 343 (Te x. 1993)) )

. Thus, exce pt as t o the provisions amend ing the di stribution of the tru st a ssets on Nancy ’ s death , the probate court erred in granting summary judgme nt and decl ar ing in the final judgm e nt that : (i) t he 2021 Trust Agre ement and its am endments wer e voi d a nd inv alid , (ii) Bass and Smith ’ s acceptan ce of trustee ship was in valid , an d (iii) Mi ke and Katie are the

In s upport o f his motion for summary judgm en t, the GAL also cited S ection 751

. 122 of the Texas Estate s Code, but even if that statute applied to Nancy ’ s POA , it would not support the probate co urt’s conclusion that as a matter of law, Ge orge was not authorize d to name different successor co
- trustees in the 2021 Trust Agr e ement and i ts amendments

. See Te x. Est. Code § 751.122 (requiring f

actua l analysis of factors to d etermine if preserving e sta te plan is “consistent with the principal’s best interest”).26

successor co
- trustees

. On these bases , w e sustain in par t and overr ule in part B a ss a nd Smi th ’ s first issue. 12
Challenge to Final Judgment as to Othe r Claims

In thei r sec o nd issue, B ass and S m ith a rgue that even if the probat e c our t properly granted the GA L ’ s motion for partial summary judgment, the probate court er red in gr an ting the
fina l j udg ment b ased on its erro ne ou s con clusion that i ts summary

- j udgme nt ruling necessa rily
mooted the rem ain der o f the case and that the prob ate court could not rule on claims that the
GAL did no t address in his m otion for summary ju dgment

. See G & H Towin g Co. v. Magee , 347 S.W.3d 293, 297 (Tex. 20 11) ( granting summa ry judgment on claim t hat was not address ed
in s um mary
-

judgment mo t ion is gen erally rev ersible error ) ; Johns on v. Brewer & Pritchard,
P.C. , 73 S.W. 3d 193 , 204 (Tex. 2002 ) ( “ A court cannot grant summary judgment on grounds that were not pre sente d. ” )

. F or e xample, they contend t hat the probate court ’ s su mmary judgment
did not includ e rulings that address ed their claims seeki ng refo rmation of the 2021 Trust Agreement and it s two amendments or thei r cl aims for att orney ’ s fees

.

Given our disposition above as to th eir first issue, we need not further addres s these ar gum ent s. Because we have concluded that the proba te co u rt erred in part when it grant ed
the GAL ’ s mo tion for p artial summar y ju dg ment and declared the 2021 Trust Agreement and its
amendments void a nd invalid , it follows that t he probate court ne cessarily erred whe n it

12 To t he exte nt that Mike and Katie raise argu ments t h at were not r a ised befor e the probate court in support of th e probate court ’ s or de r gra nting the GAL ’ s motion for partial summary judgmen t, we do not address th ose arguments

. See Amedisys, Inc. , 437 S.W.3d at 51 1 ( “ [S] ummary judgme nts must stand or fall on their own m e rits

. ” ( q u o ting McCo nnell , 858 S.W.2d at 3 43 )).27

dismiss ed the remaining claims of Bass and Smith bas ed on that ruling. On this bas is, we sustain
Bass and Smith ’ s s econd issue

.

CONCLU SION

For these reasons, we af firm the p ro bat e court ’ s f i nal judgme nt to the e xtent it
decla r ed that the p urported trus t amendm ent ex ecuted in October 2022 by Mike on behalf of his parents was v oid a nd invalid and awarded fees and e xpens es to the GAL and the r eceiver

. We
also affirm t he final judgm ent to the exten t tha t it de clar ed that the prov isions in the 2022 Trust Agreement and its amendments that changed the dis tr i bution of t he trust assets on Nancy ’ s death

we re void and in vali d

. W e reverse the remainder of the final judgment and remand t he ca se to the probate cour t for fu rt her procee dings c onsistent with t hi s opinion.

______________________ ____________________ Rosa Lopez Theofanis , J ustice
Before Chi ef Ju stice Byrn e, Justice s Smit h and The ofanis
Af f irmed in Par t; R eversed and Remande d in Part
Fi led: July 18, 2024