## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00046

- CV

KELLY SHANE HEARNE , Appellant

V.
RIVERSOURCE LIFE INSURANCE COMPANY AND AMERIPRISE FINANCIAL SERVICES, LLC , Appellee s

On Appeal from the 62nd District Co u r t Lamar County, Texas Trial Court No. 91038

Before Stevens , C.J., van Cleef and Rambin , JJ. Opinion by Chief Justice Stevens2 

### O P I N I O N

In a prior suit, Kelly Shane Hearne obtained a judgment in excess of $360,000.00 against
Charles Duncan M c Millan for injuries he suffered while working for McMillan’s company, Anthony Sign Company. In this suit, Hearne sued McMillan, RiverS ource Life Insurance Company, and Ameriprise Financial Services, LLC, under the Texas Uniform Fraudulent
T ransfer Act ( T UFTA)

. H earne alleged that , after McMillan was served with citation in the underlying tort suit, McMillan fraudulently transferre d $238,000.00 from the sale of his business, Anthony Sign Company, to Ameriprise and/or RiverSource to pur chase an annuit y ( th e River Source Annuity) and fund an i ndividual retirement account. Riversource and Ameriprise moved for summary judgment, claiming that they were not transf erees under TUFTA or , alternatively, that they were not liable because the transfer was in go od fait h. After a hearing,
the t rial court gran ted Riversource and Ameriprise’s motion and dismissed the case.
On appeal, Hearne challenges the summary judgment in fav or of Ameriprise and
RiverSource and asserts that the trial court erred in (1) finding that App ellees wer e not
transfere es under TUFTA , (2) finding that Appellees acted in good faith , and (3 ) overruling his objections to Appellees’ summary judgment evidence. Because we find that the trial court did
not err in finding that Appellees wer e not transfe rees u nder TUFTA, w e affirm the tria l court’s judgment.
I. Procedural Background In his live pleading , Hearne alleged that McMillan transferred the p roceeds of the sale
with intent to hinder, delay, or defraud Hearne. See T EX

. B US

. & C OM

. C ODE A NN

.3

§ 24.005( a)(1)

. As to Appelle es, Hearne all e g ed that they had notice of McMillan’s intent to hinder, delay, or defraud Hearne because McMi llan informed them that his purchase of the
RiverSource A nnuity was intended for the protection of his assets. A s relevant he re, Hearn e sought the following in his prayer :

a
. a voidance of the transfer or obligation to the extent necessary to satisfy [ Hearne ’ s ] claim s
. . . ; [ 1 ] [and]
b. m oney damage s from any and all Defendants, jointly and severally, up t o the value of the rel evant pr ope rty/funds transferred, s u c h damages being no less than the value of the relevant property

– funds transferred at the time of transfer and no greater than the value o f such relevant property/funds transferred at the time the jury returns a verdic t and/o r th e court signs a judgment i n this case (any money damages sought by Plaintiff in this case over tha t amount will be sought solely from Defendant Charles Duncan McMill an)

. [ 2 ] Appellee s filed a motion for summary judgment in which they sought dis m issal of all
claims against them (1) because they were not transf e rees under TUFTA, and in the alternative, (2) because they ha d no liability under TUF TA since the tr ansfer was in good faith a n d for reasonably equivalent value. In additi on, i f the tria l c ourt f ound that they we re necessary parties, Appellees req u ested an order that they were in rem defendants only, not subject to liability or relief beyond complying w ith an order to rescind the tr a n sactions and/or to turn over any assets
that they held for McMillan. As relevant to this opinion, Appellees’ summary judgment evidence showed that Ameriprise is a securities broker dealer and registered investment advisor and that RiverSource

1 See T EX

. B US

. & C OM

. C O DE A NN

. § 24.008( a)(1)

.
2 See T EX

. B US

. & C OM

. C ODE A NN

. § 24 .009( b) (“ [T] o the extent a transfer is voida ble i n an action by a credito r under Section 24.008(a)(1) of t his code , the c re dit or may recov e r j u dgm en t for the value o f the asset transferred, as a djusted under Subsection (c) of this section, or the amount n ecessary to satisf y the creditor’s claim, whi cheve r is less. ”).4

is an affiliate of Ameriprise that offers insurance, ann uities, a n d i nvestment products focused on growing and protecting client income through retirement . James M. Callaway, McMillan’s financial advisor, is an Ameriprise franchisee and an agent for RiverSou rce. In 2016, McMillan opened an IRA account with Am eriprise, wit h Callaway as his financial advisor, and transferred

an existing IRA account to Ameriprise from another firm. According to Callaway, before he knew about the underlying lawsuit, he had talk ed with McMillan about McMillan’s “options for
genera ting futu r e r etirement income after he sold his business, including the use of an annuity” and maximizing his IRA contributions. In January 2017, McMillan deposited $238,000.00 with Ameriprise , and tha t same month , he purchased the RiverSource Annuity wit h an ini t i al premium of $225,000.00 and made two $6,500.00 contributions to his IRA account for 2016 and 2017. Callaway testified, As an accountholder with Ameriprise, Mr. McMillan can deposit funds in to his Ameriprise accounts, can withdraw funds from h is Ameri p r ise accounts, and can transfer the funds in his Ameriprise accounts within Ameriprise or to another financial institution at his discretion. For certain of the accounts, there may be tax or ot her penalties for early withdrawal based on applicabl e laws, b u t s uch penalties do not prevent McMillan from making such withdrawals. At all times since McMillan became an Ameriprise customer, the funds he holds at Ameriprise have been owned and controlle d by McMillan, and can be spent, withdrawn or transfe rred awa y fro m Ameriprise by him at any time.
The evidence also showed that the RiverSource Annuity is a deferred variable annuity , and th at McMillan is both the owner and annuitant of the annuity. Und er the terms of the annuity, McMillan can designat e o r change be ne ficiaries and assign the annuity or an interest in
it. He also has the right to direct the amount, frequency, and allocation of the funds to specific
investment subaccounts

. In a ddition, because the annuity has not been annuitized, McM illan can5

withdra w some or all of the funds from the annuity up to its cash value, although he may incur surrender charges if the withdrawal exceeds a certain amount. W hen McMillan withdraws all or part of the cash value of the annuity, Appellees must gen erall y pay the fu nd s to McMillan within seven days. Hearne filed a response to the motion for summary judgment and objections to the Callaway affidavit. Hearne argued that Appellees were transfere es under TUFTA because McMillan gave up an interest in th e fun d s in exchan ge for a guaranteed monetary return on his investment, which some courts have found to be a transfer under some state ’s Uniform
Fraudulent Transfer Act s . He also argued that the good

- faith defense was not available to Appellees because th e evid ence showed t hat Callaway was aware McMillan had been sued and
that there were at least fact questions regarding (1) whether Callaway understood that McMillan sought to put his assets out of the reach of any potential judgment and (2) whether t he Ap pellees had inquir y notice but failed to investigate. He also challenged the A ppellees’ claim that they

were in rem defendants only. Hearne also asserted objections to ten statements in th e Callaway
affidavit. As relevant to this opinion, Hearne’ s evide nce in support of hi s response showed that , on February 2, 2018, McMillan told Callaway he wanted to withdraw $13,000.00 out of the RiverSource Annuity and that Callaway confirmed that McMil lan could withdraw $35,583.02 from the annuity without a s u rrender charge

. In addit io n, between January 1, 2020, and December 31, 2020, McMillan withdrew $22,500.00 from the RiverSource Annuity but incurred no surrender charges.6

At the hearing on the motion for summ ary judgment, the parties ar gued con sistently with
th eir moti on and re sp on se
. Appellees also asserte d that , at th at time , McMillan coul d wi thdraw
all the fund s in the RiverSource A n nuity but that , if it was subs equently annuiti zed t o turn into monthly paym ents , he would not be able to with draw the p r inci pal . Hear n e did not d i s pute th a t , although he poin ted out that there would be surre nder fees. After heari ng the arguments on t h e motion and on Hearne’s objecti ons to the C allaw ay affidavit, the trial court granted the motion
f or summary judgment wit h out sta ting it s ground s, o v e rruled Hearne’s objections to the Callaway a ffidavit, and reta ined Appellees as i n rem parties only, “ w i th no liability for any
deficie ncy in the n et va lue of assets held for

. . . McMillan which may b e available to satisfy a
J u dgme nt against McMil lan in t his cause, if any .”
II. Standa rd of Review for Tradition al Summary Judgment
W e review t he trial court’s g rant of a summary judgment de n ovo
. Brown v. Ci tiMortgage, Inc. , No. 06

- 14

- 00105

- CV, 2015 WL 2437519, at *2 (Tex. App.

— Texa r kana
Ma y 22, 2 0 15, no pet. ) (mem. op.) (citing Providen t Lif e & Accident Ins. Co . v. Knott , 128
S.W.3d 211, 215 (Tex. 2003)). “I n making the required review, we deem as true all evidence
which is favor a ble to the nonmovant, we indulge every reasona ble in f eren ce to be d r awn from
th e evidence, and we resolve an y dou bts in the nonmovant ’s favor.” Id. (citin g Valence Operating Co. v. Do rsett , 164 S.W.3d 656, 661 (Tex . 2005)). “ When the trial court does no t specify the basis for its ruling, we must aff irm a s umma ry judgmen t if any of t h e grounds on which judgment i s s ought are meritoriou s.” Id. (citing Merri man v. XTO Energy, Inc. , 40 7 S.W.3d 244, 248 (Tex. 2013)).7

“ To be entitl ed to traditional summary ju d gment, a movant must establish that there is n o
genu i ne i ssu e of ma t erial fact s o that the movant is entitle d to judgment as a matter of law.” Id. (citing T EX

. R. C IV

. P. 166a(c); M an n Frankfort Stein & Lipp Adviso rs, Inc. v. Field ing , 289 S.W.3d 844, 84 8 (Tex. 2009)). “Once the movant produces evid ence e n titl ing it to s ummary judg m e nt, the burden shifts to th e non movant to present ev idence raising a genui ne issue of
material fact.” Id. (citing Walker v. Harris , 9 24 S.W.2d 37 5, 37 7 (Tex. 1996)). “A def e ndant who conclusively negates a single essent ial el e ment of a caus e of action o r conclusively
establishes a n aff

irmative defense is entitled to summary ju dgment on that claim.” Id. ( citing
Frost Nat’l Bank v. Fern andez , 315 S .W.3d 494, 508

– 09 (Tex. 2010 ) ). “ A traditional motion for summary judgment must s tand on its ow n merits, an d the nonmovant may argue on ap pea l that
the movant ’ s summary judgment proof is insufficient as a matte r of law, even if the nonmovant
f iled no resp onse to the motion. ” Galind o v. Snoddy , 415 S.W.3d 905, 909 (Tex. App.

— Te xarkana 2013 , n o pet.) (citing M.D

. Anderson Hosp. & Tumor Inst

. v. Willrich , 28 S.W.3d 22, 23 (Tex. 2000) (pe r curiam) )

. III. TUFTA

“ TUFTA’s p urpose is to prevent debtors fr om prejudici ng cr editors by improperly

m o ving assets beyond their reach.” Janvey v. G olf Cha n nel, In c. , 487 S.W.3d 560, 5 66 (Tex. 2016) ( citing KCM Fi n. LLC v. Bradshaw , 457 S.W.3d 70, 89 (Tex. 2 015) ). “ Under TUFTA, a

tra ns fer made with actual or constru ctive intent to d efraud any creditor may be avoided to the extent necessary to satisfy the cr e dito r’s claims

. ” Id

. As a p plicable to this case, “ [a] tra nsfer
made

. . . . by a debtor is fraudulent as to a creditor, whether t he creditor’s claim arose before or8

withi n a r easonable time after the tr ansfer was made

. . . , if the debtor made the tran s fer

. . . . wit h
actual int e n t to hinder, delay, or defr aud any creditor of the deb tor .” T EX

. B US

. & C OM

. C ODE
A NN

. § 24.005 (a)(1). A “ ‘[ t] ransfer ’ means every mode, di rec t or indirect, absolute or

co nditi onal, voluntary or involuntary, of disposing of o r par tin g with a n asset or a n interest in an asset, and includes payment of money, relea se, lease, and creatio n of a lien or other
encumb ra nce. ” T EX

. B US

. & C OM

. C ODE A N N

. § 24. 002 (12).
If the creditor is successful in showing the transfer was fraudulent a s to it , the c r editor,
“su b j ect to the limitations in S ection 24.009” of the Business a nd Commerce Code,
may obtain: (1) avoidance o f the transfer

. . . to the exten t nec essary to satisfy the credi tor’ s claim; (2) an attachment or other provisional r emed y a gainst t he asset tr a n sferred or other property o f the t ransferee

. . . ; (3) s ubject to applicable p rinciples of e quity and in a ccordance with applicable rules of c ivil procedure: (A) an inj unctio n against further disposition by the debtor or a t rans fer ee, or b oth, of the a sset transferred or of othe r prope rty; (B) appointment of a receiver to take cha rge of the asset transferr ed or of other property of the tr ansfe ree; or (C) any other reli ef the circumstances may require.
T EX

. B US

. & C OM

. C OD E A NN

. § 24.008 ( a). In add i t ion, if the creditor obtain s a ju dgment against
the debtor on its claim, it can “ levy execu tion on the asse t transferred or its proceeds.” T EX

. B US

. & C OM

. C ODE A NN

. § 24. 008( b).9

Section 24.009 provides an affirmative defen se t o “a pe rson wh o took in go o d faith and for reasonably e quiva lent value.” T EX

. B US

. & C OM

. C ODE A NN

. § 24.009 ( a); Jan vey v. GMAG , L.L.C

. , 592 S.W.3d 125 , 129 ( Tex. 2019 ). I f the person establishes the defense, then the transfer

“ is not voidable under Sec t ion 24. 005(a)( 1 ), ” and the t ransferee may keep the tran sferr ed asset.
T EX

. B US

. & C OM

. C OD E A NN

. § 24.009( a); GMAG , L.L.C

. , 592 S.W.3 d at 12 6. However , if a

tran sfer e e does not establish th e affir mative de fense, the creditor, subject to exceptions not

a p plic abl e to th i s case, “ ma y recover judgment [against t he transferee] for the value of the asset transferred, as adjusted under Subse ct ion (c) of this section , or the amount necessary to satisfy
the creditor ’s claim, whichever is less. ” T EX

. B US

. & C OM

. C ODE A NN

. § 24. 0 09( b). In a d dition,

“ if the judgment un de r Subsection (b) of this secti on is based upon the v alue of the asset
transf er red, the judgment must be fo r a n amount equal to the value of t he asset at the time of the transfer, subject to adj ustme n t as th e equit i es may requ i r e. ” T EX

. B US

. & C O M

. C ODE A NN

. § 24.009( c). Nevertheless, TUFTA does not define “transferee.”
IV. Appellees A re Not Transferees Unde r TUF TA
In his first issue, Hearne asse rts tha t the trial court e rred in granting summary j udgme n t
be cau se the A ppellees fa i l ed to establish that they a r e not transferees of the funds under TUFTA.
Hearne a cknowledges that TUFTA d oe s not define transferee but po ints to the broad definition
of transfer under TUFTA and the remedies available to a credi t or a gai nst tra n sferee s to a r gue for

a n equally broad de finition of transferee. 3 Hea rne also argues that , g enerally under an annui ty , a

3 Hearne cites Trigeant Hold ings, Ltd. v. Jo nes , 183 S .W.3d 7 17, 726 ( Tex. A p p.

— H o us ton [1st Dist.] 200 5, pet. denied); Airflow Housto n Inc. v. Theriot , 849 S.W.2d 928, 934 (Tex. App.

— Hous ton [1st Dist.] 1993, no writ); and Gutierrez v. Givens , 1 F .Supp.2d 1077, 1087 (S.D. Cal. 1 998) , in support o f his argu m e nt. Ho wev er , b o th Tr i g eant H o ldings and AirFlow Houston involved companies to w hich th e debtor (business) transferred assets for either no10

person pays a premi um in re turn for a guarant eed income str eam for a specific period and , thus , gi ves up an inter est in the fun ds paid

. He argues that the RiverSource A nnuity w as no exception, but then poi nts out that , under the terms of the annuity, McM illan could con vert the annui ty back
to cash but would have t o pay a surrender charge if he did so. Consequently, h e ar g ues , Mc Millan i s no longer t he own er of the money he de po sited , but rather , he owns the a nnuity

contract. 4

consideration or for less than fair

- market value . Further, in each case , the owner of the debtor or on e o f h i s fa m i ly me mb er s was a be nef

i cia r y o f the tr an saction. See Trigea nt Holdings , 183 S.W .3d at 721

– 22; AirFlow Houston , 849 S.W.2d at 930. For these reasons, the transfere e companies were clearly transferees under TUFTA. These cases do not address t he iss u e of w h eth e r a financi al ser v ices co mpany or a n insuran ce company that hold s and inves t s the annuity funds on behalf of its client , but ha s not acquired an interest in the assets, is a transferee under TUFTA. In Gu tierrez , it was alleged tha t Colonial Ba n k, w h i ch wa s controlle d by G i vens , c onspire d with Given s to trans fer his assets beyond the reach of his creditors. Gutierrez , 1 F.Supp.2d at 1080. The plaintiffs alle ged that Colonial Bank both knew the fraudulent purpose of the transfers a nd facilit ate d the t ransf er s
. I d

. Coloni a l f

i led a moti o n to dismis s the plai ntiffs’ claims under California’s UFTA and argued that the remedies of the CUFTA section comparable to TUFTA’s S ection 24.009 were n ot applicable to it because it w a s not a transferee. I d

. a t 10 8 7

. Th e federal d istric t c ou rt acknowledged th a t t he bank was not a transferee, b ut nevertheless denied the motion because , considering the allegations of the bank’s compl icity in the fraudulent transf ers, it had failed to e stab lish t hat it would not be l i a ble u nd er th e CU FTA se c tio n co mparable to TUFT A’s S ection 24.008 (a) (3)( C )

. Id

.
4 I n support of his argument, Hearne cites In re Levine , 134 F.3d 1046, 1049

– 50 (11th Cir. 19 98 ) , and Leibman v. Grand , 981 S. W.2 d 426, 435 (Tex. App.

— El Paso 1998 , n o pet. )

. H o w ever, i n In re L evin e t he a nnu ity co ntract was no t in t he record, and the co urt relied on its understanding of annuities generall y to determine that , because “ an individual who pu rch ases an annuity

. . . doe s not ret ain tot al control over the asset ” and l a cks “ un fettered access to t he full am ount of

” the funds , the purchase of an a nnu ity , in that case, was a transfer under Florida’s Uniform Fraudulent Transfers Act

. In re Levine , 134 F.3d at 1050. Consequen tly, i t c onclude d that the debtor ’s transf e r of a ssets f ro m non
- e xempt t o ex emp t by pu rchasing an annuit y was a transfer under FU FTA. Id

. However, the issue of whether the insurance company that issued the annuity was a transf ere e was not befor e the cour t. Se e i d

. at 1 048. As in In re Le vine , t he q u e stion o f whether a fin a ncia l c ompan y that had opened a n annuity account f or the debto r was a transferee was not an issue in Liebman . Neither did the court consider whether the debtor’s purchase of the annuity was a t rans fer under TUFTA. Rath er, t h e iss u e was wh ether the cash

- surrender value of the annu ity was e xempt from th e debtor’s credito r under forme r Article 21.22 , Section 1 , of the Texas Insurance Code

. Liebman , 981 S. W.2d at 430 ; see Act of May 30 , 1993, 73 d Leg., R.S. , ch. 685, § 20. 2 0, 19 9 3 Te x
. Gen

. L aws 2559, 2706 (repealed 2003) (codif y ing for mer Arti cle 21

. 22, Sect ion 1, of the Texas Insuran ce Code , which was recodified at T EX

. I NS

. C ODE § 1 1 08 .051 ) . The court acknowledged that , under Art icle 21.22, Section 1 , an annuity is full y e xem p t fr o m exec ut ion by the cred itor. Liebman , 981 S. W .2d at 430

. B ut i t not ed that Art icle 21.22, Section 3 , provided that those e xemptions did not apply to premium payments made in fra ud of creditors. Liebman , 981 S. W.2d at 430 ; see Act of May 24 , 2001, 7 7 th L e g. , R .S ., ch 1023 , § 75, 2001 Tex. Gen . La ws 22 40 , 2 265

– 66 (repealed 20 03) ( codifying for mer Ar ticle 2 1.11, Section 3 , which was recodified at T EX

. I NS

. C ODE § 1 1 08 .053)

. Bec ause the evidenc e supported the trial court’s findi ng that the debto r purc h ased t he a n nu ity with inten t to defraud his credit o r, L ieb man , 981 S. W.2d at 433, and that non

- exempt funds were use d to purchase the annuity, id

. at 436,11

Appe llees rely on the domin ion o r con trol tes t , discussed below, and argue th a t , under that test, they have established that they are not transfer ee s und er TUFTA

. They also a r g ue that the summary judgmen t ev idence shows that McMillan ha s not relinquished the f unds used to purchase t he R iverSource An nuity and that th e annuity was in the accumulation stage , which
allows th e money to be invested and g ro w , ta x - d eferred , until it i s annuitize d. Although they
acknow ledge that McMillan has an opti on to annuitize the fu nds invested in ex chang e f or a guarante ed income, during t he accumulati on stage , McMillan can access the funds and withdraw all or part of the fund s a lthough he may incu r surrender charges if the wi thdraw al exceeds a certain amount of the principal. 5
A. Who is a Transferee Un der T U FT A?
As noted e arlie r, TUFTA does not define “t ransferee.” In construing the meaning of

“ good fai th, ” another term n o t de fin ed unde r TUFTA, the T exas Supreme C ourt noted th at ,

“ [ w ] h en a statute does not define a word or phrase, we loo k to its plain or c o mmon meaning. ” GMAG, L .L.C. , 592 S.W.3d at 129 (citing In re Lipsky , 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceedin g )

. Als o, beca u se “ princip l e s of law and equity

. . . s upplement [ TUFTA’s ] provisi ons, ” i d

. (quoting T EX

. B US

. & C OM

. C ODE A NN

. § 24.0 1 1 ) , “ [the Court ] also con sider [ s ]
the common l aw in determining the meaning of good faith , ” i d

. It then examined both t h e de fin ition o f good faith i n Black’s Law Dictionar y an d the common law meaning of good faith

the court he ld that the trial court did not err in issuing a turnover order in regard to the c a sh

- su r rend e r valu e of the annuit y
. Id

.
5 The su mm ary j u dg ment ev idence s hows that the surre nder charges beg an at s even per cent and decline d over time to zero after the seve nth year. The e vidence also shows that McMillan made withdrawals but had not incu rred s u rren d e r cha rg es.12

and concluded th at good faith un der TU FTA w as consiste nt with the principles expres sed both in the pla in or common meaning and in the common law of Texas. Id

.

“ T rans fer ee ” has been define d as “[o]ne to whom a propert y interest is conveyed,”
T ransferee , B LACK ’ S L AW D ICTIONA RY ( 11 th ed. 2 019 ), an d as “a person to whom a conveyance
is made , ” Transfer ee , M ERRIAM

- W EBSTER ’ S C OLLEGIATE D ICTIONARY (11 th ed. 2006).

“ Con v e y ” h as been de f

ined as “[t ] o transfer or deliver (somet hing, such as a right or pr operty) to another,” Convey , B L ACK ’ S L AW D ICTION ARY ( 11 th ed. 201 9 ), and “ conveyance ” has been
de f ine d as “[t]he voluntary transfer of a right or of property , ” Conveyance , B L AC K ’ S L AW
D ICT I ONARY ( 11 th e d. 2019 ).
Texas common law has also spoken as to who is a transferee under TUFTA , at leas t , a s in

t his case, whe n the a sset is monetary . Because of th e si milarity between the United States Bankruptcy Code provisions regarding t h e av oid ance of transfers m a d e to hinder, delay, or
defr aud creditors and TUFTA’s provisions, 6 the Fourteenth Court of Ap peals loo ked to the
United State s Court of Appeals for the Fifth Cir cuit ’s de fi nition of a transferee , for purposes of
the B ankruptcy Code , in In re Co ute e , 9 8 4 F

. 2d 138, 14 1 (5t h C ir. 1993) (per curia m)

. Newsome
v. Charter Bank Colonial , 940 S.W.2d 157 , 165 ( Tex. App

— Houston [14 th Dist.] 1996 , writ
denied ) (examining In re Coutee ). I n In re Cout ee , t he Fi fth Ci rcuit adopted the “domin io n or control test ” use d by o ther ci r cu i t co urt s of appeal s
. In r e Coutee , 984 F.2d 138, 14 0

– 4 1 (5th
Cir. 1993) . Under this test, “ dominion over funds mea ns the right to put the money t o one’s own

use ,” id

. at 141 ( citin g Bonded Fin

. Serv s. , Inc. v . Eu ropean Am. Bank , 838 F.2d 8 90 , 893 (7t h

6 Com pare 11 U.S .C.A. § 54 8(a)(1 ) with T E X

. B US

. & C OM

. C OD E A NN

. § 24.005(a) ; compare 11 U .S.C.A. § 550(a), (b) with T EX

. B US

. & C OM

. C OD E A NN

. § 24. 009(a), (b).13

C i r. 19 88 ) ), and “ an e ntity d oes not have dominion over th e money until it is, in essence, ‘ free to
invest the w hole [amount] in lottery ticket s or ura nium stocks ’ i f it wishe s. ” Id

. ( quoting Bonded Fin. Servs., Inc. , 838 F.2d at 894 )

. In ad o p ti n g this t es t , th e F ifth Circuit held t hat a law firm that placed se ttlement funds in a trust account for its client and paid some of the f unds to satisfy a
loan it had o btained for th e cli ent was not a transferee. The Fifth Circuit expla ined : As the d i s tr i ct cour t n o ted , th e funds were deposi ted into the firm’s trust acc ount, as opposed to its business account, indicating tha t they were held merely in a fi duciary capaci ty fo r t h e Coutees. Moreover, the negotia tions regardin g the firm’s legal f

ees, whi c h o c curred a ft e r i t re ce ived the funds, i ndicate that the firm was not free at that time simply to keep the money. The only c ontrol exercised over the funds was the contr ol de leg a t ed to the law firm by the Coutee s. Id

. In News ome , the creditor had garni s h ed the ban k a c cou n ts of the debtor, John son, but did
not name the deb tor’s wife or any other third party as a judgment de btor. Newsome , 940 S.W.2d
at 1 62. The Newso mes c ont e n ded that the Bank should have im pounded the fu nds in the accounts owned by the d eb t or’s wi f e a nd o t he r parties because i t knew or should have known

t hat the debtor was depositing income into accounts o wned by his wife, other family members,

or em ploye es, a nd that the Bank was liable unde r TUFTA as tra nsf erees. Id

. at 160, 164. Whi l e i t a cknow l ed g ed t hat the Bank engaged i n a number of imprudent trans actions with the debtor, the court of appeals held tha t “ the Bank did not own the [] f unds or otherw ise b ene f

it from the []

tra nsactions, but was simply comp lyi ng with its depo sitors ’ ins t r uc t ions to pa y [th e d ebtor]

. As such, t he Bank was merely a ‘ financi al conduit or intermediary ’ in the collection process. ” Id

. at 166 (citing I

n re Coutee , 9 84 F.2d at 141 n. 3 )

. C onsequently, “ the Bank was not a transferee, [and] there was no tr ansfe r gi v ing ris e t o lia bil ity on the part of the Bank under ” TUFTA. Id

.14

I n Williams v. Performance Diesel, Inc. , No. 14

- 00

- 00063

- CV, 2002 WL 596414 (Tex. App.

— Hous t on [14th Dist. ] Apr . 1 8 , 2002, no pet.) , the Fourteent h Court of Appeals a gain appl ied th e dom i n io n or con t ro l tes t t o determine whether a financial services company was a transferee under TUFTA. In that case, Plato and For d fraudulently obtained proceed s from t he
sal e of bon d s belonging to an insurance company and diverted t he mon ey throug h compa n i es they co n tr o lled

. Those companies iss ued checks to Merrill Lynch w ith instructions to open c ash

m anagement a ccounts (CMA s ) in the n ames of Plato and Ford. Id

. at *1. The c omm issio ner o f
i nsurance brought TUFTA claims again st severa l d efendants, incl u d in g Merril l L y nch, an d sought to hold th em liable for the funds trans ferred to them. Id

. The court of appeals noted that “ Merrill Lyn ch accepted cash from [ the compa nies ] for
the purp ose o f opening CMAs for Plato and Ford ,” th at the “ a ccou n ts were multi

- f un c tional a nd
offe red the capacity to bu y, sell, and hold securities, write checks, and make Visa charges ,” and that they “ contained a p rovision that unassi gned cash w as to be aut omati call y swept into money funds pre

- selected f

or that p urpo s e by the acco u n t h older. ” I d

. at * 6 . The court reject ed the

c ommissioner’s content ion that Merrill Lynch was a transferee because the opening of the

“ a ccounts by checks drawn from [ th e companie s ] we re n o mo re than the purchase of securitie s for Pla to and Fo r d. ” Id

. I n h olding t ha t Merril l Lynch was merely acting as a financial conduit between the companies and Plato and Ford, the court noted that the term s of the CMA
ag reements provide d that “ only the parti es in whose names the accounts w ere opene d could
di r ect the d i st r ibution or tran sfe r of funds from the accounts ,” id. , and “ that Me rrill Lynch lacked the discretion to transfer any funds from the accounts wit hout the express permission of th e15

a c count holders , ” id. at *7. Consequen tly, Merr ill Lynch never “ obt ain [ e d ] d o minion o r c ontr ol
over the funds. ” I

d

. In Sourcing Management, I nc. v. Simclar, Inc

. , 118 F.Supp.3d 899 ( N.D. Tex. 2015) , the

court not ed that , a lthough TU FTA does not de fine a transferee, “a party is a transferee i f it has ‘legal dominion o r contro l ’ o v er the a ss e ts i n q uestion.” Id

. at 9 16. U nder the dominion or

co ntrol test , “ [f

]actors a court should consider in determining whether a party is a ‘ transfe ree ’
inclu de whether t he party h as complete leg al title, unfettered discretion to pay creditor s , a n d the
l a ck of a ny agreement restricti ng access to or use of the fu nds. ” Id

. (citing Andres Holding Corp. v. Villaje Del Rio, Ltd

. , Nos. SA

- 0 9

- CV

- 127

- XR, SA

- 09

- CV

- 268

- XR , 2 011 WL 860 529, at *12 (W.D. Tex. Mar. 8, 2011) (order ) )

. It went on to note th a t “ [ a] reci p ie n t of fu nds is not a
transf eree, for example, if it hold s the funds only in a fiduciary capacity, and has no legal right to put the funds t o its ow n u se.” Id

. (quoting A nd res H ol ding Corp. , 2 0 11 WL 8605 29 , at *12 )

. In Andres Holding Corp. , t h e t rial co u rt used th e dominion or con tro l analysis to
determine wheth er a general contractor had established that it was not a transferee under
TUFT A. Andr es Holding Corp. v. Vil laje De l Rio, Ltd

. , No s. SA

- 09

- CV

- 127

- XR, SA

- 09

- CV

268

- XR , 2011 WL 8 60529, a t * 12 (W.D

. Te x . Ma r. 8, 2011) (order)

. The court denied Andres’s

mot ion for summary judgment on the creditor’s action to void a transfer under TUFTA . In d oi ng so, the court reje cted An d r es’s argument that it was not a tran sferee because it lacked domi n i on

or cont r ol o v er p aym ents made to it bec ause it was merely a trustee of the funds for distribution to subcontractors and suppliers. Id

. The court noted that , un der the dominion or c ont rol

a nalysis , “‘ comp lete leg al title , ’ ‘ indicia of ownership, ’ ‘ u n fe tt e red di sc re ti o n ’ t o p ay creditors,16

and l ack of any ‘ agreement .

. . r estricting .

. . access to or use of the funds ’ weigh in favor of finding transferee s tatus

. ” Id

. (quoting In re Southma rk Corp

. , 49 F.3d 1111, 1114, 1116 (5 th
Cir. 1995 ) )

. Because An dr e s did no t pr o vide an y “ evidence to sugg est that it lacked unfettered
control over the funds , ” “ that it lacked own ership or l egal title over the funds, or th at i t w as sub ject to any agre ement re stricting the use of t he funds with regard to its subcontr a c tor s ,” the

c ourt deni ed summary judgment. Id

. B. Analysis The Texas Suprem e Court in GMAG, L.L.C. , has directed that , in determini ng undefined
terms under TUFTA , we sho u ld co nsider both the plain or co mmon meaning and the c ommon
law interpretation of those t erm s
. GMA G, L.L

. C. , 592 S.W.3d at 129. As noted above, there are
both state and federal cases from Te xas that have applied the dom inion or control test in
determi n ing wh e th er a pa rty is a transferee und er TUFTA in cases invo lving financial
institutions , fin a ncial se rvic e com pan i es, and general co nt ractors. See, e.g. , Perfor mance Diesel , Inc. , 2002 WL 596414 , at *6

– 7; Newsome , 940 S. W.2d at 166; Andres Holding , 201 1 WL
86 052 9 , at * 12; see also Rotstain v. Trust mark Nat’l Bank , No. 3 :09

- CV

- 2384

- N, 2015 W L
130 3 4513 , at *6 ( N.D. Te x. Apr. 21, 2015) ( order) (applying dominion or control test to
determine whether financial institut ion was a transferee under TUFTA).
Whi l e we r eco gnize th at TUF TA ’s definition of a transfer is broad, we also note t hat th at
bro a d de f

initio n is d e sign ed to promote TUFTA ’s purpose of “ preve nt [ing] debt ors from prejudicing creditors by improperly moving a ssets be yond their reach.” Gol f Channel , Inc. , 48 7
S.W.3d at 5 66

. T he broad definition of tra nsfer accomplishes that purpose by s ubj e cting al most17

any for m of conveyance a d ebtor attempts to make to the remedies provided by TUFTA. Thus,
the definition of transfe r f ocuses on the d ebtor and its a t t empt to move it s assets beyo nd the
reach of creditors. In c ontrast, the dominion or c o n tro l test , a t le a st i n r elation to financia l
ins titutions, financial ser vice companies, and insurance companies offering financial or in vestment servic es that hold or i nvest funds on be half o f the ir clients, focus es on the reali ties of
the relationsh ip b e t wee n the d eb tor, the fun ds, and the holder of th ose funds. By way of ill ustration, a fter a money judgment is ente red aga ins t her, Sarah opens an
investment account wit h A BC finan cial services company and funds it fr om her non

- exempt
savi ngs account . ABC i nve s ts the f unds in a va riety of in vestment s, including stocks, bonds, a nd
mutual funds, and charges fees for mai ntainin g t he acc ount and its investment se rvices. Sar ah
remains the o wner of the accoun t , and ABC is o bligated to return the value of the ac c o unt to
Sar ah wit h in a ce rtain time a fter he r demand, subject to any pena lties, charges, or lost interest that may be incu rre d as a result of the sale or ear ly redemptio n o f the in vestm ents. In this scenario, althoug h ABC holds and invest s the fun ds Sara h pla c ed in th e ac c ount , i t holds and
invests those funds on behalf of Sar ah and subject to her discretion, as owne r of the ac count , to remove all or part of th e funds in he r accoun t. S arah’s intent may well bring the transfer within
the b road meaning of T U FTA ’ s inte nt

- foc u sed def inition of “ transfe r.” T EX

. B US

. & C OM

. C ODE
A N N

. § 24.005( a )(1) ( defining a transfer as fraudulent “if the deb tor made the transfer

. . . with
actual inte nt to hinde r, [or] de lay ”). Sarah’s intent notwithstanding , thoug h, the ne e d fo r Sarah ’s

cre d itor s to resort to TUFTA is not ap parent ; b ecause the account is non

- exempt , Sarah’s

cr editors would be ab le to reach the funds through executi on or a tur n over order ag ainst Sarah

.18

Suppose, though, tha t , a fter realizing her creditors c a n r e a ch he r non
- e xemp t i nvestment

account w ith ABC , Sarah opens an IRA i nvestment account with ABC financ ial services

com pany and transfers the asset s from her n on
- exempt inv estment acc ount to the IRA account.
In this sce nario, because the acc ount and t h e in v e stmen ts are part of Sarah’s IRA, they would b e exempt assets. T his transaction , given Sarah’s inten t, would also be a t rans fer under TUFTA

. Here, though, the practica l and legal ef fect s of Sarah’s actions require clo ser examination
becaus e of the e x emp t statu s typi c ally af forded to IRA accou nts. S ee T EX

. P ROP

. C ODE A NN

. § 42.0021 ( a )(4) ( Supp.)

. Unde r this s cenario, is A BC a transferee under TUFTA ? If we relied

on the broad definition of tr ansfer under TUFTA, the answer m ay be yes. And if we rel i e d o n l y

on th e pl a in o r c ommon meaning of tr ansferee, the answer may also be yes, since Sarah deliver ed
p roperty (her mon ey) t o A BC , wh ich now holds her fund s
. Bu t the domi nion or control test

e xamin es the reality of the relationsh ip to determine whethe r A B C is a tran sf eree : Sa rah still
owns the fun ds , in the form of the invest ments , and she is free to treat the funds as her own, in cluding redeeming all or part of the funds a t any time and inves ting the funds elsewhere

. A lthough A BC holds and invests t he f unds S arah pl aced in t he account , it still h olds and invests
those funds on behalf of Sarah and subject t o her discretion , as own er of the account, to remove
all or part o f th e funds. ABC does not own the funds , and its control o f the funds is subj ect to its

o b ligat io ns t o Sar ah

. In other words, t he relati onship between Sarah , her assets, and ABC is the

sam e wh ether the as sets a re in the non

- exempt account or in the exemp t ac count.
Under this scena rio , Sarah has once again made a transfer within the m ean i ng o f TUFTA

. Thi s tim e s he has transfe rr ed the assets beyond the reach o f her creditors by moving the fu nds to19

an exempt acco unt

. Accordingly , TUFTA, and its r emedies tha t en able the creditor to re ach those assets, would have mor e practical relevance

. S ee T E X

. B US

. & C O M

. C O DE A NN

. § 24.008( a). But to who m did Sarah transfe r the a s sets? S he transferred the assets from Sarah ,

a s owner of a non
- exempt a ccount , to Sarah , a s ow ner of an exempt a ccoun t. ABC did not gain any additio nal rights, dominion, or cont r o l ove r the a sset s. As a result, i f th ere wa s a tr ansferee
under TU FTA , it wa s Sarah, as owner of an exempt accoun t, not A BC. B ecause Sarah’s transfer
im plicates TUF TA, but ABC is not a t ransf eree, the creditor’s TUFTA claim s apply only to
Sarah.
A s a r esult , in a c cord anc e with GMAG, LLC , w e consider the p lain meaning of transferee,

a s modified by t he dominion or c ontrol test , to determine whether Appellees, under the fa cts of this case, are trans ferees under TUFTA. In doin g so , we consider the r e la ti o n ship be twee n
McM ill an, the contested a ssets, and Appel lees and weig h relevant factors, such as co mplete legal
tit le, indicia o f ownership, the unfettered disc retion to pa y cr editors, and wheth er th ere is an agreement that restric ts Appellees’ access t o o r use o f the f unds

. See Williams , 2002 WL
596414 , at *6

– 7; In re Cou tee , 984 F.2d at 140

– 41 ; Sourcing Mgm t. , Inc. , 118 F.S u pp.3d at 916 ; Andres Holding , 20 11 WL 86 0529 , at *12. Appellees’ sum mary judgment evidence in this case s howed that the RiverSo u rce A n nuity p urch a sed by McMillan is a defer red vari able annuity contract , which at the time o f the summary ju dgment was in the accumulation phase. 7 During th e accumul ation ph ase of the

7 See Variable annui ty, I NVESTOPEDIA , https://www.inve s topedia.com/te rms/v/ v aria b l eann u i t y. asp (last visited May 4, 2023 )

.20

annuity , t he in vestment seeks to grow the cash value of the annuity. 8 Du r i ng th is pha s e , M cMi lla n , as owner of t he annuity, ha s the right to direct the amount, fr equency, and all ocation
of the fun d s to specific investment subacc ounts. Mc Millan a lso has the right to with draw funds , or take distribution s from any of the su b a cco u n ts in t he a n nuit y, up to the t otal cas h value of the annuity , altho ugh he may incur surr ender charges (w hich may be as hig h as seven percent) and tax pena lties

. 9 U nder the terms of the annuit y con tract, when Hearne withdraws all or part of the
cash v alu e of th e annu i ty , App ellees must general ly pay the funds to McMillan within seven days. H earne did not of fer any summary ju d gment evidence that refute s or raises an issue of

mate rial fact as to any of this evidence. 10
This evidence shows that , at this phas e of th e Rive r Sour ce Annuity, Appellees do not have legal ti tle to th e funds, they hold an d invest the fun ds on behalf of Mc M illan

. A ccording to
his d irection as to the am ount, freq uency, and allocation of the fun ds , they invest and hol d the
funds su b ject t o McM il lan’s dis cretio n to wit hdraw some or all o f the funds. Under these fac ts,
we find that Appellees a re not transferees und er TUFTA

.

8 Se e Ac cum ulation phase , I NVES TOPEDIA , https://www.inve s to pe dia.com/terms /a/accu mula tionphase.asp (last visited May 4, 2023 )

.
9 Appellees acknowl edge that , under the annuity, Mc Millan may choose to ente r the a nnui t i zatio n or payout phas e, in which he ex chan ges the pr incipal balance in his account for guara nte ed life time payments. In the tri al court, t hey al so ac kno wledged that , in the annuitization phase, McMillan would not be ab le to withdraw the princ ipal.

10 Alm o s t all o f Hearne’s sum mary judgment evi denc e w ent to the issue of whethe r A ppellees acted in g ood faith

. The only evidence Hearne produced relat e d to t he transfe ree issues supported Appell ees’ contention that McMillan w as able to withd raw fund s from the a c count s in the RiverSo urce Annuity . Th at e vid ence in cluded (1) Callaway ’s SmartPad No tes from February 2, 2018 , which indica te d that M cMi ll an want ed to withdraw $13,000.00 out of the ann uity a nd that he could withdraw $35,583.02 wi thout a surr ender c harg e and ( 2) McMill an’s Ameriprise statemen t fo r t he p e ri od January 1, 2020, through December 31 , 2020, whi ch re flect ed $22,500.00 in withdrawals fr om the RiverSou rce An nuity with no s urrender charges.21

Nevertheless, He ar ne argues that we sho uld n ot ap ply the common

- l aw definition of
transferee

. He disti nguishes In r e Coute e because i t dete r min e d w hether the law firm was an initial transferee un de r Section 5 50(a) (1) of the Bankru ptcy Code. See 11 U.S.C. A. § 550(a)(1)

. He points out that, as no ted by In re Coutee , und er th e Bankruptcy Code , the trustee ma y avoid a f raud u l ent t ra nsfer aga inst t h e in iti al transferee irres pective of whether it took th e transfer in good faith and paid equ ivalent value

. See In re Cou tee , 984 F.2d a t 140 n.2 ( citing 11 U.S.C.A. § 55 0(b)( 1)); 11 U.S.C.A. § 550(a)(1) )

. In cont rast, he arg u es, T U FTA p ro vides for a goo d

- fai th
defense for the fir st transferee th at allows it to prevent avoidanc e of the transfer. See T EX

. B US

. & C OM

. C ODE A NN

. § 24.009(a)

. He argues that , in the case of a n ann uity, a financial services

c ompany receives the p r e mium i n ret ur n for fut ure se r vice s, and it may ult imate ly be able to
invest them how ever it wish es
. He argues that , since A ppell ees have some contr ol over the funds, they should be held to be tran sferees.
Howe ver, Hearne’s interpretation would l ead to ab s urd r e sults

. See Wors dale v

. Cit y o f
Killeen , 578 S.W

. 3d 57, 73 (Tex. 2019) (“ Const ruing statutes to avoid ‘ glaringly absur d ’ re sults

‘ has long bee n a judi cia l function. ’ ” Armstrong Pai nt & Varni sh Works v. N u - Enamel Corp

. , 305 U.S. 315, 333 (1 938) )

. S e ctio n 24.00 9( a) “ prote cts a t rans fer ee against avoidan c e of a
fraudulent transfer

. . . if it can prove it ‘ took in good fai th and for a reasonably equivale nt
value. ’ ” GMAG, L.L.C. , 592 S .W.3d at 12 9 (quoting T EX

. B US

. & C O M

. C OD E A NN

. § 24.009(a ) )

. In o ther w ords, “ [i]f the transf e ree pro ve s as an affirmat i ve defense that it acted in
g ood faith and the transfer was for a rea sonably equivalent value , it may ke ep the transferred

asset. ” I d

. at 126 . In this case, McMillan is alleged to have trans ferre d n o n
- ex e m pt fu nd s to an22

e xempt a nnui ty to defraud Hearne. The summary judgment evidenc e shows that McMillan is the

owner a nd b eneficiary of the annuit y. If A ppe llees are held to be transfer ees o f th e funds used to purchase the annuity and Appellee s prov e t h e af f i rmati ve defense under S ecti on 2 4.009(a), then
A pp ellees may keep the funds in the annuity, and Hearne will not be abl e to reach the funds . In

suc h a case , M cMillan will be free to withd raw s ome or all of the fu nds until th e annuity is
annuitize d an d , af

t e rward s , to recei ve the mon t hly benefits to be pai d under the annuity.
Yet , thi s goes directly against the purpose and re med ies provided by TUFTA, wh ich, as

see n above, gives creditors broa d rem edie s to recover ass ets that are transferred by a deb t or with

t he in te nt to hin der, d e lay , or defraud the credit ors. In addition, Hearne’s i nterpretation would raise a potential conf

lic t between Section 24.009( a) and the Texas Insurance Code. The Texas
Insuranc e Cod e ex empts the benefi ts , “ includin g the ca sh v alue a nd p r oc eeds ” of an ann u ity , fr om garnishme nt, att achment , execution, or other seizure to pay the debt or other liability of the
benef iciary . T EX

. I NS

. C OD E A NN

. § 1108.05 1 ( a)(2), (b). However, if the premi um s used to purchas e the annuity are pa id i n fr a u d of a creditor, the e x emp t ion s provided b y Secti on 110 8.051 do not apply. T E X

. I NS

. C ODE A NN

. § 1108.053(1). Yet, i f the financial service company is he ld to be a trans feree under TUFTA and it proves its af firmative defense under
Section 24.00 9 (a ) , it g ets t o keep t he funds u sed to purchase the annuit y. As a result, under
Hearne ’s interpretation , a conflict would arise bet ween TUFTA and Section 1108.053. By applying t he plain me aning of transferee, as modifie d by th e common law rega rding
funds h e l d by e ntiti es who do n ot hav e do m ini on or contro l over the funds, we recognize that the owner and beneficiary of the annuity is M cMillan, and because McMillan is Hearne’s debt or,23

Hearne is able to reach the otherwise exemp t annuity under bot h TUFTA and t h e Tex a s
Insu ra nce Code , ass um i ng h e i s able to pr ove his allegations that the purchas e of the annuity was
a fraudulent transfer.
W e fin d that , under the facts of this case , Appellees have shown as a matter of law that they a re no t transferees under TU FT A

. As a r esult , we find t hat th e tr i al court did no t err i n fin ding that Appellees were not transferees under TUFTA. W e overrule He arne’s first issue

. 11 , 12
V. Conclus io n For the reasons st ated, we a ffirm the trial court’s judgmen t.

S cot t E. Stevens Chi ef Jus tic e
Da t e Submi tt ed: April 19 , 2 0 2 3 D ate Decided: M ay 16 , 202 3

11 In his second issue , Hear ne asserts that the trial c ourt e rre d in finding Appellees acted in goo d fa ith . T his issue is necessari ly p remise d on a fin ding th at A ppellees were transferees under TUFTA. See T EX

. B US

. & C OM

. C ODE A NN

. § 24.009(a). In h is third issue, He arne asserts that the tr ial court erred i n ov e r rulin g h is objections to Appellees’ su mm ar y j udgm ent evidence. However , He arne’s objection s were to c ertain statements contained in Calla way’s affidavit, all of whic h were o nly relevant to the is sue of good faith. Because we have d etermined that A p pell e e s wer e n ot transferees under TUFT A and bec aus e th at finding is a suffic ien t basis for the trial court’ s summary judgment in favor of Appe llees, we need not address H earne ’ s second and third issue s
.
12 Hearne also a sserts for the firs t time on a ppeal t hat , e ven i f A ppellees are not transferees a s to th e fu nds in the RiverSource An nuity, they are t ransferees as to the fees and charges related t o the annuity , citing Rotsta in , 2 015 WL 13034513 , at *6

. However , “ all theo ries i n support of a summary judgme n t , a s well as all opposing issues, must be p r ese nte d in wr iting to the court at the h earing .” C asso v. Bran d , 776 S.W.2d 551 , 553 ( Tex. 1989) ; see T EX

. R. C IV

. P

. 166 a( c) (“ Iss ues not expr essly presented to the trial co urt by written motion, answer or ot h e r r e s ponse s hall not be considered on appea l as gr ound s f or reversal. ”). Fu rth er , the trial co urt’s judgme nt must conform to the pleadings. See T EX

. R. C IV

. P

. 301. In his r esponse to Appel lees’ motion for summary ju dgment , Hearne did not conten d that Appe l l ees w er e transferees as to any fees or cha rge s th ey received related to th e a nnuity. Also , unlike the plaintiffs in Rotstain , in his live pleading below, Hearne did not s eek recovery of any fees or charges related to th e annuity that were rec eived b y Ap p e llees o r make any allegations that App elle es were li able for any such f ee s or charges. S ee Rotstain , 2015 WL 13034513 , at *6

. Because we may not rev erse a trial co urt’s s u mmary judgment on issues not ex pressly p resented to it in a written re sponse , and b ecaus e Hearne’s live pleading s do not s eek re cove ry of any fees or char ge s related to the annuity, we overrule this issue.