### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00768- CV

Rita Mar y Gause, A ppellan t

v. Thomas X. G ause, Appellee

F ROM TH E DISTRI CT COURT O F F AY ETTE COUNTY , 155 TH JUDICI AL DISTRICT NO. 200 7V-2 91- A, H ONO RAB LE GLADYS M. OAK LEY , JUDGE P RESIDING

O P I N I O N Appellant, Rita Mary Gause , appea ls from the summary judgme nt of the district court of Fa y ette County in a suit filed by appellee , Thomas X. Gause , to deter mine and enfor ce the terms of a lost inter vivos trust cre ated by his father

. We first must deter

mine the Court’s jurisdiction to ente rt ai n t h e appea l. The

sum m ar y judgme nt was signe d on Aug ust 17, 2011. The parties later filed an ag ree d motion to

sever . The order g ranting sever ance bear s the signature date of Marc h 6, 2012, and rec ites, in part, “This order also constitutes a final judgme nt ag ainst Def endant Rita Mary Gause in each of the above cause s of action.” The sever ance order was approve d as to form by all counsel. On April 4, 2 0 1 3 , R i ta filed a “Motion to Reform J udg ment pursuant to TRAP 329(b).” The district court g rante d the motion to ref

orm on May 20, 2013, and the notice of appea l was filed on J une 19, 2013. Fr om the fac e of the sever ance order , and from its t er m s , the judgme nt ag ainst Rita was final on Marc h 6, 2012. Of course , all rele vant time tables beg in to run from the date the judgme nt is signe d.I f the Marc h 6, 2012 sever ance order was the final judgme nt, as it purports to be, the notice of appea l

filed on June 19, 2013, was untimely and did not establish jurisdiction of this C ourt. The Clerk of the Court wr ote counse l conce rning this iss ue. I n response , the Clerk

rec eived an aff

idavit signe d by the trial court explaining that it signe d the sever ance order

on Marc h 6, 2013, but that the order was i n co rr ec tly dated Marc h 6, 2012. The court explained further that the y ear “2012” was ty ped on the sever ance order and that the cou rt overlooke d the incorrect date when it signe d the order on Marc h 6, 2013. A court of appea ls may deter mine fac ts, b y affidavits, or otherwise, that are nece ssary to the proper exercise of its jurisdiction. See Tex. Gov’t Code § 22.220(c)

. We acc ept the trial court’s aff idavi t as jurisdictional evidenc e that supplies the basis for our

authority to consider the a

ppeal. The summary judgme nt confirme d, among other things, the exis tence of the Survivor’s Trust, (the Trust) established its terms, deter mined title to the trust proper ty , and remove d Rita as trustee. We will aff irm the summary

judgme nt. By his suit, Thomas soug ht, among other things, to aff irm the exis tence of the Trust established by his fathe r, L eonar d L ucian Gause , J r. I n 1945, L eonar d, J r. purcha sed a 105-ac re trac t of land in Fa

y ettte County consisting of two parc els: one containing 95 acr es and the other 10 acr es. This proper

ty is the principal asset of the Trust. I n 1946, L eonar d, J r. marrie d Rita. Seven children

wer e born of

the marr iag e, including Thomas, B renda n, and Jeanette. Thomas claimed tha t the principal ter ms of the Trust we re a s follows:

a. The assets of the Survivor’s Trust included L eonar d J r.’s one-ha lf undivided interest in the 95 ac re tra ct out of the orig inal Property

.

2b. The 10 acr e trac t w as to be transfe rre d to L eonar d J r.’s son, B renda n Gause (“B renda n”) f or B renda n’s exclusive use and e njoy ment.

c. The 95 acr e trac t was to be held in Trust by Ri t a, as T rustee, for Rita’s benef it, we l l-being , and maintenanc e (including the power to sell, transfe r, and consu m e same during Rita’s lifetime) and upon the death of Rita the rema ining trust as s et s wer e to be distributed equally to four of the Gause children, Thoma s, J ohn, Patricia, a nd Eliz abeth.

L eonar d, J r. did not include three of his children as benef iciarie s of the Trust either beca

use they had rec eived inter vivos g ifts or had expressed no interest in the land. I n 1992, L eonar d, J r. executed a hologr aphic will in which he ref err ed to and adopted by ref ere nce the Trust. L eonar d, J r. died in 1998. He kept his will and the trust instrument in his briefc ase. T wo d ay s afte r his death, J eanne tte took the briefc ase and, having rea d the will and the tr u s t instrument to Rita and the other children, took the briefc ase and its contents to her home in Be llaire, Texas. The trust instrument has not been seen since. Rita was of the view that J eane tte intentionally lost or destroy ed the trust instrument.

By 2000, Rita, who was in poor health, stay ed with J eane tte for some time while she soug ht medical attention in H ouston. During this time, J eane tte preva iled upon Rita to convey the entire F ay ette County

proper ty to her in fe e for

a nominal consider ation. A few months later, Rita sued J eane tte in Fa y ette Count y to canc el the deed to the proper ty

. Upon trial, judgme nt was rende red sustaining the Trust and canc elling the deed to J eane tte. The judgme nt ree stablished title to the proper ty : 50% interest to Rita, individually , and 50% interest to Rit a, as Tr

ustee for the Trust.

3I n May 2 0 0 2 , Rita executed a deed purporting to convey the entire Fa y ette C ounty proper ty to Br endan for a nominal consideration. I n 2007, when the benef iciarie s o f t h e Trust lear ned of the convey ance of the prope rty to Bre ndan, Thomas f

iled the pre sent suit. On appeal R ita claims that the district court erre d in deter mining the exis tence and terms of the Trust, a lost document, based upon parol evidenc e. Rita’s contention is not well taken.

A deed or other document is not made ineffe ctive by its destruction or loss. Benne tt

v. Romos , 252 S.W .2d 442, 445 (Tex. 1952) (“That the loss or destruction o f a valid deed does not reve rse or invalidate the transfe r of title made by the deed is , o f co urse, well settled.”); Lott v. Van Zandt , 107 S.W .2d 761, 765 (Tex. Civ. App.—Amar illo 1937, no writ). Production of the orig inal document is excused when it is established that the document has bee n l o s t o r destroy ed. Travis Cty. W

ater Con t r o l & Improve ment Dist. No. 12 v. McM illen , 414 S.W .2d 450, 452–53 (Tex. 1966). Other e vidence of the c ontents of a writing is a dmissibl e if the orig inal has been lost or destroy ed. Tex. R. Evid. 1004(a)

. L oss or destruction of t h e d o cument is established by proof of sea rch f or this document and inability to find it. McM

illen , 414 S.W .2d at 453. The exis tence and t er m s of the Trust wer e established in the prese nt suit by Rita’s

sworn proof in the prior deed- canc ellation case ag ainst J eane tte. L oss of the trust document and inability to locate either the orig inal or a copy is acknow ledg ed by Rita in her brief. L ikewise, such fac ts are ref

lected by her sworn proof and that of Br endan in the deed- canc ellati o n ca s e ag ainst J eane tte. The Tr

ust document was last see n in the possession of J eane tte who attempted to obta in the total acr eag e for

a nominal consider ation fre e of the trust provisions. I t is tru e, as R i t a implies in her brief, that the statute of fra uds require s one

s ee k i ng to enfor ce a purported trust in rea l proper ty to prese nt “wr itten evidenc e of the trust’ s 4terms bea

ring signature of the seller or the seller’ s authorized ag ent.” Tex. Prop. Code § 112.004. Howeve r, s ection 112.004 does not remove trust instruments from the operation of g ener al rules rela ting to t h e p ro o f o f lost documents. See In re Estate of Berger , 174 S.W .3d 845, 847 (Tex. App.—Waco 2005, no pet.) ( citing McM illen , 414 S.W .2d. at 452). Rita next contends that the district court err ed in rende ring summary judgme nt based upon controve rted parol proof of the exis tence and terms of the Trust. I n response , Thomas arg ues that Rita is barr ed by the doctrine of ju d icial estoppel from asser ting summary -judg ment proof inconsistent with her sworn pr oof in the prior de ed-c ance llation suit ag ainst J eane tte.

I n her pr ior dee d-ca

ncellation suit, Rita asserted in he r ver ified petition:

“On November 21, 1998, L eonar d L

. Gause , J r. died. He l ef t a valid will, dated J anuar y 25, 1992 (the “Wi l l ”) , i n whi ch he bequeathed his entire interest in the Property (as well as various other property ) t o P l aintiff [ Rita] , as Trustee of a trust known as the “ Survivor’s Trust” a nd appar ently

dated Apr il 6, 1985.”

. . . . “Plaintiff [R ita] submits that the Trust, among other things, provided that the 10 acr e trac t of the Property was to be co n v ey ed t o Br endan Gause

. Moreove r, the Trust provided P l ai n tiff with full power , rig ht, control and authority over the income and rema ining assets in the Trust (including th e power to sell, transfe r, convey and consume any and/or all of those as s et s d u ring her lifetime, for her well-be ing and maintenanc e), and t h at u pon Plaintiff’s death, the balanc e (if any ) of the rema ining Trust assets (including the 95 acr e trac t of the Property ) were to be distributed equally betwee n J ohn Gause , Patricia Gause Spaeth, Thomas Gause , and Eliz abeth Ga

use.”

Rita testified in the deed- canc ellation suit as to the exis tence and terms of the Trust. She also swore that she helpe d “wr ite up” and ty pe the Tr ust.

5I n the prese nt suit, Rita executed an abrupt about-fa ce, testify ing on deposition tha t

she did not reme mber any thing about the Trust. I n her aff idavit fi l ed with her response to the motion fo r summary judgme nt, she swore that she had no memory of the Trust and that she had

never rea d it. She also claimed that her understanding of her husband’s estate dispositi on plans came from fa mily discussions over the y ear s. Rita’s sworn proof reg arding the exis tence and terms of the Trust was, to say the least, inconsistent

. As aptly stated in Thomas’s brief, Rita’s testimony “var ied wildly depending

on whether the exis tence of the Survivor’s Trust prom o t ed o r detra cted from Rita’s then

curr ent leg al position.” J udicial estoppel preve nts a party who has m ad e a s worn statement in a prior judicial proce eding from maintaining a contra ry posit i o n in a subsequent proce eding

. Charles Brown, L.L.P. v. Lanier W orldwide, I

nc. , 124 S.W .3d 883, 898–99 (Tex. App.—Houston [14t h Dist.] 2004, no pet.); see Miller v. Gann , 842 S.W .2d 641, 641 (Tex. 1992) (“The applicability of judicial estoppel is not limit ed to oral testimony , b u t applies with equal forc e to any sworn statement—whe ther oral or written—made in the course of a judicial proce eding .”). Acc ording ly , Rita is barr ed from asser

ting any summary -judg ment proof inconsistent w ith he r proof in the prior deed- canc ellation suit establishing the e x istence a nd terms of the Tr

ust. Rita asser ts, finally , that the dist ri ct court err ed in denying her specia l exception to Thomas’s motion for summary judgme nt. I n para g raph 19 of his motion for summary judgme nt, Thomas made ref

ere nce to a letter from J udg e Be ck, th e fo rmer district judge , addre ssed to the counsel. The court wr ote the letter sever al months afte r i t had denie d Thomas’s initial motion for summary judgme nt. The letter r eads a s follows:

6Dea r Counselors: I t “appe ars” that the p ro p erty is separ ate and that the community has an “intere st” in the proper

ty

. “Appe ars” and “intere st” are in quotes beca use of uncer

tainty on my part. The uncer

tainties can be resolved by prese ntation of fac ts or stipulations here to. Mr. Steinhauser’ s arg uments about the trust tugg ed at ever y prac tical bon e i n my body ; howeve r, estoppel issues kept coming back. Equitably , for cer tain and leg ally , I believe, tha t Rit a and B renda n Gause are estopped. T h e p roperty may be consumed as pay ment for Ms. Gause ’s car e. However, consumpti o n m u st be rea sonable, equitable; and proportional. Fa cts will assist in those deter

minations.

I n g ener al, a trial court’s letter is not competent evidenc e of the cou rt ’s basis for judgme nt, and, in the proper case , is not a finding of fac t or conclusion of law. See Cherokee W ater Co. v. Gregg Cty. Appraisal Dist. , 801 S.W .2d 8 7 2 , 878 (Tex. 1990). I n para g raph 19 of his motion for summary judgme nt, T homas ref err ed to the content of J udg e Be ck’s letter as a “ruling ”

on estoppel and on the separ ate nature of the rea l proper ty

. Howeve r, as is appar ent, J u d ge Be ck

mere ly offe red his thoug hts and observations about the case , but “ruled” on nothing. Assuming for arg ument that specia l exception is the appropr iate proce dure to addre ss the perc eived problem in para g raph 19, and assuming for arg ument that the d i s t ri ct court err ed in deny ing it, Rita has not demonstrated harm. I n fac t , she admit s in her brief that the Beck letter formed no part of J udg e Oakley ’s order of summary judgme nt rende red some two y ear s later. I n the absenc e of a showing of injury resulting from the denial of a specia l exception, the trial court’s ruling will not be disturbed. See Tucker v. Northcutt , 248 S.W .2d 750, 753 (Tex. Civ. App.—Waco 1952, writ ref ’d); see also Tex. R. App. P. 44.1 (re versible err or); Slentz v. American Airlines, Inc. , 817 S.W .2d 366, 368 (Tex. App.—Austin 1991, writ denied) (“The trial court has broad discretion

7in ruling on specia l exceptions, and the ruling will not be disturbed on ap p eal absent an abuse of

discretion re sulting in harm.” ).

The judg ment is affirme d.

__________________________________________ Bob E. Shannon, Justice Be fore J ustices Pury ear , Bour land, and Shannon* Affir med Filed: Jul y

29, 2016

* Be fore Bob E. Shannon, Chief J ustice (retired) , Third C ourt of Appeals, si t t i n g b y assi g nment. See Tex. Gov’t Code § 74.003(b).

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